Many years ago, I listened to a talk by Professor Kevin Fong who is a consultant anaesthetist but also has worked with NASA Human Adaptation and Counter Measures Office. He was dealing with the difference between pilots and medics and how they work in their respective environments. His view was that the reason there was so few errors with pilots was because they followed a detailed checklist (even if they thought they knew it inside out) at every stage of a flight. The same however cannot be said for healthcare where the idea of checklists is often still in developmental stages.

Every year the NHS, through its claims-handling authority NHS Resolution, releases statistics concerning what are known as “Never Events”. These are events which just should never occur. We all accept as clinical negligence lawyers representing patients that from time to time accidents occur. These however are events of a different level. For example, the amputation of the wrong limb or leaving surgical equipment in the abdomen at the conclusion of surgery. Recent news on this issue is not reassuring.

Some £23 million in compensation has been spent over the last three years dealing with this type of events.

Almost £2.8 million was spent on over 100 cases where patients had items left inside them following surgery. Between April and July 2019 there were a total of 125 such cases, of which 63 involved surgery at the wrong site, 15 involved the wrong implant or prosthesis and a smaller number concerned various issues regarding medication.

In response to some of these issues the NHS has started to publish guidelines and protocols but, stepping back for a moment, it is quite astonishing that wrong site surgery can even take place. These events are so negligent that it seems impossible that they should even occur.

There are indeed quite specific protocols in all theatre departments relating to counting in and out, swabs, instruments and so on. It is difficult to ascertain why problems continue with such frequency.

Hospitals have traditionally had less of a systems-based hospital wide approach and more the individual approaches of different consultants. There are plenty of different examples (and patients’ lawyers rely on them all the time) where there are protocols in place or whether it is just accepted practice that certain events occur. There are equally however, lots of cases where there isn’t a protocol and where different consultants are free to take a completely unique view of how a patient should be treated.

For clinical negligence lawyers these cases are often more straightforward. The negligence is so obvious that usually there is not an issue about whether there is fault and it is a matter of determining the harm that has been done. That is not the case with the bulk of clinical negligence cases where there may be dispute as to whether there is fault or not.

What is clear however is that these events continue to occur. If the NHS is serious about reducing the amount of compensation it pays, then it must look at all aspects of care and start to use checklists or protocols more often. They may not be a universal panacea, but it is possible that they would bring to the attention of staff something that has been forgotten. Easily done in a busy environment.

What is surprising is that the figures are not reducing. In the year before April 2019 there were approximately 496 never events. In the year before that approximately there were 400 so in fact from previous years it appears that there has been an increase which has been sustained. It is not significant, but it is enough to raise eyebrows.

During a case there is usually a significant argument about the costs that have been and need to be incurred to complete the work. The NHS is a public body and needs to be limit costs where it can. It is a valid argument. However, the issues of, in essence, barn door negligence are not reducing, and the NHS is not being effective in dealing with these issues. Financially it may be a smaller part of the entire compensation bill, but it should be a part that can be completely removed.

While the NHS understandably raises concerns about the costs of compensation claims it would do well to look to itself to improve its own procedures and protocols and to reduce the level of negligence and, in particular, the level of never events which often have a devastating effect on the patient.