Recently I have acted for several clients in connection with clinical negligence claims relating to brain injuries that occurred as a consequence of substandard medical treatment. It is easy to take for granted, that if you are admitted to hospital for a straightforward surgical procedure that you will be discharged home from hospital on the mend save for a short recovery period.

However, this is only too often not the case. I have recently been instructed by the family of a gentleman who was admitted to hospital for repair of a fractured shoulder which was sustained following a fall. Unfortunately his surgery was postponed over a period of four days which led to him becoming very dehydrated and his blood pressure dropped. He was administered fluids via a drip but this at some stage became disconnected and he was without fluid for several hours. He was unable to eat for 4 days.

On day 4 the surgery went ahead but during the course of the surgical procedure he suffered a hypoxic event which caused a brain injury. The family of this gentleman had not expected anything like this to happen during the course of a routine surgical procedure. Prior to this surgery, the gentleman was fit and healthy and led a very active life for a person of his age.

In another case, I acted for a lady who was admitted to hospital following a subarachnoid haemorrhage. When she was admitted to hospital, her consultant explained that the surgery would remedy the subarachnoid haemorrhage, it would be carried out later that day and that she would make a good, if not full recovery. Unfortunately, due to an administrative error, her name was not on the theatre list that was sent to the hospital ward and a nurse gave her a sandwich and a banana to eat. She questioned this and was told by the nurse that she was not on the theatre list for that day. It was only while she was eating the lunch provided by the nurse, that her consultant arrived on the ward and was shocked to see her eating as she was due to have surgery that afternoon. The surgery was relisted for the following day but unfortunately in the interim period my client sustained a further second bleed to her brain which caused her significant neurological problems as a consequence. Again this brain injury was totally unexpected by her family.

The third case, I mention, relates to a young lady who delivered her son in hospital and post delivery was visited by her family. She was complaining of shortness of breath and was given painkillers and a nebulizer by the midwives. However, once visiting time was over, my client was left on her own with her newborn baby on the post natal ward. Unfortunately, shortly after her family had left the hospital, my client suffered a cardiac arrest but was not resuscitated quickly enough as the midwives were busy and were unaware that she had collapsed. As a consequence, there was a delay in resuscitation which led to hypoxic brain damage. My client is now unaware that she has had a baby (who now lives full time with a close family member). She has significant difficulties and requires 24 hour nursing care. Again for the family this was a totally unexpected event as although she had health problems prior to her pregnancy the delivery of her son was relatively straightforward.

Complaining

In all of the above cases the injury to the patient was totally unexpected. As well as being unexpected it resulted in a complete change of lifestyle for the patient and the family.

Brain injuries can lead to loss of independence, housing problems, employment problems which in turn lead to financial difficulties and often long term care needs. In all of the above cases, the relatives of the patient all were aware that something must have gone wrong during the course of the treatment given to their relative by the hospital staff. However, knowing that something has gone wrong and trying to deal with the outcome places significant pressure on the families. They were unsure who to turn to, what to do and how to start the complaints procedure or even what is involved in lodging a complaint.

The relatives of the gentleman who suffered a hypoxic brain injury during the course of the surgery for fractured shoulder telephoned me and I advised them to lodge a formal letter of complaint with the NHS Trust concerned. I explained that thereafter a response should be received within the requisite time frame and if they were unhappy with the response they received they should arrange for a meeting with the hospital to discuss their outstanding concerns. Fortunately, they have liaised with the NHS Trust concerned who has provided funding for rehabilitation for the gentleman at a specialist unit for a three month period. The family is relieved. This has taken a lot of pressure off of them with regard to the care needs of this gentleman.

However, many families do not know who to turn to and the NHS complaints procedure can be quite daunting for them. Often relatives do not want to complain about treatment their loved one has received, despite the fact that they know something went wrong, because their relative is still being treated by that NHS Trust and they are conscious that there may be conflict between the nursing and medical staff and themselves especially if their relative is in hospital for a long time and they are visiting on a regular basis. Complaining about staff who are still treating your relative is a difficult choice to make.

Often the complaints procedure can take a long time and it can be frustrating for families who have already lost faith in the NHS. I provide support and encouragement to potential client’s families as they are going through this process. Most feel daunted by the enormity of the procedure especially when they are trying to come to terms with the fact that their relative has a brain injury.

Litigating

Once the NHS complaints procedure has been exhausted the next step is for families to decide if they want to litigate. If this is the case they need to find a suitable solicitor with experience of dealing with cases similar in type to the injury their relative has sustained. This too can be daunting.

Organisations such as Headway, AvMA, APIL and the Law Society can steer potential clients in the right direction and they are all invaluable in providing good sound advice to inexperienced clients. The Legal 500 and Chambers assist in recognizing solicitors with expertise in this area of litigation.

Many clients feel that they only have one bite of the cherry and they need to find the best person they can for the best advice and the best service. They do not have time to contact every single firm of solicitors listed as specialists in the area of clinical negligence and I expect most would rather have a personal recommendation knowing that the recommendation has been given with confidence and they are in safe hands. Shopping around for a lawyer is time-consuming and confusing, more choice often leads to indecisiveness and it is best to go to the right person from the outset.

We have to remember that these families have already been let down once by the NHS Trust and this can lead to trust issues when seeking legal advice. It is imperative that the advice they receive is accurate and the solicitor they instruct is not only able to deal with the potential claim, but is able to point them in the right direction regarding other issues in relation to housing problems, financial difficulties, employment issues, support groups and generally to provide encouragement and support when needed.

The litigation process can be long and exhausting and clients must always be aware that the process is stressful and may not provide them with the outcome they want to achieve. Some cases are easier to prove than others and no two cases are the same. Each case must be judged on its own merits and expectations must be realistic.

The effects of an unexpected brain injury can never be underestimated. Clients require clear, simple advice so that they are confident that you are the best person for the job!