The Parliamentary and Health Service Ombudsman (PHSO) revealed this week that there were a high number of complaints made to the NHS where there had been a consistent failure to learn from previous mistakes.

As part of the reason why many people make complaints is to prevent other patients from experiencing the same mistakes and poor care, these are disappointing results. The complaints procedure will only work if NHS trusts learn from the complaints made and change their processes to avoid the same mistakes happening again.

Julie Mellor of the PHSO, said: “These cases bring home all the suffering patients and their families experience when things go wrong, particularly when complaints are not handled effectively at a local level. Families have been left without an explanation as to why their loved ones died, mistakes have not been admitted, which means that much needed service improvements are being delayed.”

One of the PHSO cases reported by the BBC this week was about a cancer patient who died following a hospital’s failure to act quickly enough. Mr Peter Filipovic was referred to King’s College Hospital in London with suspected pancreatic cancer. The hospital which had seen him before referred him to King’s College Hospital after they found a small tumour on his pancreas.

But there were delays and failings in Mr Filipovic’s care which led to the hospital informing Mr Filipovic that he did not have cancer and they proceeded to investigate him for other problems. By the time the hospital finally found his cancer, he had already lost six stone, suffered from jaundice and was unable to walk. He was too weak to have an operation and it was too late to have chemotherapy.

Mr Filipovic’s family were understandably distraught at the failings in his care. They felt that they were given confusing and contradictory information.

The Ombudsman did explain, however, that the outcome might have been the same even if the hospital had been quicker in investigating Mr Filipovic’s cancer.

This sad case highlights the need to establish the necessary legal tests in order to bring a clinical negligence claim and that, in such cases where it is not possible to establish these tests, the NHS complaint system needs to act as a sufficient redress for a family’s concerns to ensure apologies are made and lessons are learned.

WHAT ARE THE LEGAL TESTS?

For a clinical negligence claim to be successful, it must be established that:

  • the medical practitioner was negligent and that the care provided fell below a standard expected of any reasonably competent doctor in that medical field (known as “breach of duty”); and
  • the negligent treatment has caused damage which would have been avoided but for the negligent treatment (known as “causation”).

A person cannot claim for problems due to any pre-existing condition or something that would have occurred even if the treatment had not been negligent.

Emma Beeson, a lawyer in the Penningtons Manches clinical negligence team, explains: “One of the first things we have to explain to a client is the need to establish the two necessary legal tests in order to establish a clinical negligence claim. It can often be one of the hardest things to explain to the family of a loved one who has sadly passed away that, although there may have been clear failings in the care provided to their loved one prior to their death, we have to be able to show that these failings caused their loved one’s death.

“In some of the cases we deal with, the test of “causation” is the hardest test to establish, particularly in cases involving cancer patients. The medical evidence obtained will often demonstrate that, even with appropriate and reasonable care, the patient would still have died due to their cancer or other underlying condition.

“We have to be able to show that, but for the negligence, the patient’s death would have been avoided. If we cannot establish this, we may not be able to pursue the claim further or the level of compensation could be limited.

“This does not excuse the poor standard of care that their loved one will have received and we often advise such clients to ensure that they raise a complaint with the NHS trust involved to ensure that these issues are brought to the hospital’s attention; changes can be made to ensure these mistakes do not happen again; and the family can receive an apology for the mistakes.”