Following a claim involving a patient assault on a member of staff, where Kennedys (instructed by the NHS Litigation Authority) successfully defended allegations made against the Defendant Trust, we consider the background to the case and the tactics used to challenge allegations of negligence and breach of statutory duty.

Background

The claim arose out of an incident in December 2005. The Claimant was employed as a healthcare assistant by the Defendant Trust and worked on an acute assessment ward, which treated elderly patients with dementia. Patient X suffered from Huntington’s chorea and was admitted in November 2005. The following month, the Claimant alleged that she was assaulted by the patient when she ordered him to get up from the floor of the day room, sustaining permanent physical and psychological disabilities which prevented her from working again.

The Claimant alleged the Trust had failed in its duty to protect her from harm, which included a failure to:

  • Properly assess the foreseeable risk of harm.
  • Provide the Claimant with adequate training.
  • Implement adequate staffing levels for aggressive patients.
  • Transfer the patient to a suitable and alternative unit.

Liability was denied and Kennedys successfully challenged in the High Court the admissibility of a liability report from a nursing expert on the basis that it was unnecessary and the expert was not impartial. Details of this aspect of the case have previously been featured in our June 2010 edition of Liability Brief. Evidence

The Trust gave evidence that since admission, the patient had been closely monitored and received regular input from a multidisciplinary team, including hourly assessments of his behaviour. The care plans and records confirmed that any changes in the patient’s condition were responded to with necessary adaptations to his care. This included an increase/change in the number and skill mix of staff on the ward, for example, during times when the patient was consistently unsettled.

On each shift there was at least one qualified registered nurse who had received additional and specific training to care for the patient. The Claimant had worked closely with the patient since his admission, was familiar with the care plan and knew not to deal with the patient alone if confrontation was likely to arise.

The Claimant’s evidence was proved as inconsistent. Under cross-examination, her account of the incident came under fire and she conceded that she had not been thrown by the patient six feet into a chair, as originally alleged. Concerns were also raised about how readily the Claimant’s medical experts had accepted her version of events and had failed to support their findings with evidence based research.

His Honour Judge Knight favoured the evidence from the Defendant’s experts, who concluded that at most, the Claimant had sustained a minor soft tissue injury to her arm and back at the time of the assault followed by a short period of anxiety. The Court heard that she had continued working after the accident, had gone on holiday and had only reported her injuries to her GP some four months after the incident, having first sought legal advice.

Judgment

The claim was dismissed. The Judge acknowledged this case drew attention to a dilemma common to all healthcare providers – the requirement to balance the competing needs and rights of a patient against their equally important obligations to protect other staff and maintain a safe working environment.

The Judge held that the Trust had taken all reasonable steps to identify the risks and minimise harm in order to maintain a safe environment on the ward, providing optimal care to the patient and staff. By being able to demonstrate effective systems of working, adequate training and excellent clinical care, the Judge accepted it was wholly appropriate for the ward manager to make informed decisions about appropriate actions in respect of risk, including in relation to staffing levels, the need for 1:1 continuous observations and patient transfer.

Furthermore, the Judge was satisfied that the Claimant had deliberately exaggerated her claim and awarded the Trust indemnity costs from the date of the Defendant’s offer to discontinue and pay nominal costs (made shortly before trial). This included the Claimant’s failure to disclose receipt of a substantial award from the Criminal Injuries Compensation Authority (CICA).

Comment

Despite initially presenting as a typical employers’ liability case, this case raised a host of wider issues. In particular, it highlights the important role that contemporaneous records play in litigation when defendants have to justify that adequate practices and systems were in place. The impressive and comprehensive witness evidence and documentation provided by the Trust enabled the Judge to gain a clear understanding of the systems in place at the time of the incident and the rationale behind the clinical and managerial decisions.

This case is a useful reminder of how important it is to be able to properly demonstrate adequate systems of work. Further, the Court’s pragmatic approach to such a case is to be applauded and should provide reassurance to healthcare providers. It should also act as a warning to disingenuous claimants that the NHS Litigation Authority will defend to trial unfounded or exaggerated claims