The NHS is facing an existential crisis. The negotiations over junior doctors’ pay and conditions and widespread dissatisfaction among GPs, combined with a £2.45bn overspend by NHS Trusts for the 2015/16 financial year, is impacting on patient care. The NHS is treating more patients than ever before, including a rapidly growing number of elderly people whose care, in many cases, is caught in a Mexican stand-off between the NHS and social services.

In February 2016 the NHS Litigation Authority released its latest figures on medical negligence claims made in 2014/15. Just over 10,000 claims were lodged with another 900 pending; and the amount paid out during the year (but not necessarily related to the claims lodged in the same period) amounted to £1.3bn. If financial squeeze on the NHS and social services continue, the number of claims and subsequent compensation payments will continue to rise relentlessly. The cases outlined below are some of my most notable and an indication of what can go wrong when the caring services come under pressure – and these are just the tip of the iceberg.

Cancer case

Mrs B was diagnosed with breast cancer in 2004 but unfortunately it took over a year before the histology results were given to her.  During the 12 month delay in treating the cancer, not only had the tumour grown but the cancer had spread to her lymph nodes. As a result of the advanced stage of the cancer she had to undergo a mastectomy, radiotherapy and chemotherapy. Had the histology results been made available shortly after the original diagnosis, she would have undergone a lumpectomy with the possibility of chemotherapy.  Because the cancer had advanced to the stage it did, her case considered whether or not the delay had contributed to a reduced life expectancy. In the event, Mrs B remained well five years after her original diagnosis. 

Nursing home case

Mrs C was a resident at a nursing home for around 10 weeks until five days before she died.  As a result of the poor care she received at the nursing home she developed bed sores on her sacrum and heel and bilateral pneumonia from aspiration.  Her daily activities were neither monitored nor recorded properly including what she was eating and drinking as well as her general wellbeing. As the nursing home failed to identify and care for pressure areas, which resulted in pressure sores developing, there was a delay in Mrs C receiving medical treatment.  Although it was unlikely that the poor care had led directly to Mrs C’s death, it certainly made the last three months of her life extremely uncomfortable.  Her daughter, who was alerted to the poor treatment her mother had been subjected to, brought a claim on behalf of her mother’s estate for the poor care she had received at the nursing home. 

Spinal case

Mrs D had suffered from back problems and agreed to undergo a spinal operation in order to regain the degree of mobility and flexibility she enjoyed beforehand. This was particularly necessary to her as she had young children and being active was important. She agreed to have a discectomy (an operation to remove the section of disc that is pressing on a nerve or on the spinal cord) or replace it altogether, whichever was more likely to achieve the outcome she wanted.  However, during the course of the operation, the surgeon, finding himself without the right equipment for a discectomy, had to perform a fusion operation instead.  Ms D was in considerable pain following the operation and, understandably upset with the care she had received, came to us for advice. Our expert witness supported our client’s case on the basis that the hospital’s negligence in failing to provide the correct equipment directly resulted in the surgeon’s actions which caused the pain and discomfort she suffered. The client has been left with permanent debilitating back and leg pain which affects her family, social and working life. Although the hospital finally admitted a breach of duty, it would not admit negligence so working out the final settlement was complicated. In the end, we were able to negotiate a six figure sum for our client with which she was delighted.

Dental negligence case

Our client brought a dental negligence claim against a dental surgeon on the grounds that he had performed unnecessary fillings and root canal work, as well as prescribing antibiotics for the pain from which she was suffering, rather than investigating the cause of her pain. She was seen subsequently by a locum dentist, who immediately recognised mouth cancer and referred her to the local hospital where she underwent surgery for squamous cell carcinoma. Our client claimed for unnecessary treatment and was awarded a four figure sum. She also reported the dentist to the General Dental Council who placed restrictions on his practicing registration. Although there was a late diagnosis of the mouth cancer, this did not specifically lead onto more extensive or different treatment (that is the late diagnosis did not cause any ‘injury’) which meant that this part of the claim was not pursued.

Psychological case

Our client, Mrs A, underwent an emergency liver transplant at the University Hospitals of Birmingham NHS Foundation Trust. Within a week the liver transplant had failed and she underwent a further transplant.  At the second operation, it was discovered that the first liver had been “branded” with the original operating surgeon’s initials.  On being told what had happened some four months later, Mrs A suffered a severe psychological reaction.  The hospital admitted liability and settled the claim for a five figure sum. 

Bowel surgery case

Our client, Mr L, had suffered ulcerative colitis throughout the 1990s and underwent bowel surgery as his symptoms had become increasingly intolerable.  The bowel surgery in created a pouch in place of his rectum so that he would not need an ileostomy.  Unfortunately the surgery was unsuccessful and so he returned to hospital the following year to have the pouch removed and a ileostomy was performed.  Over the next twelve years, despite being told that the pouch had been removed, Mr L continued to suffer extremely debilitating symptoms requiring him to wear incontinence pads. He felt so unwell that he was unable to work during that period.  In 2012 he was referred back to the colorectal surgeons where it was discovered that the pouch had not, in fact, been removed.  He underwent surgery in 2012 and he has now recovered well.  The hospital admitted liability and Mr L is due to receive a six figure settlement.

Common bile duct case

Ms M underwent a laparoscopic cholecystectomy at Woodlands Hospital, Kettering, during the course of which the surgeon caused extensive damage to the common bile duct without realising the injury he had caused.  Bile continued to leak from the common bile duct into the abdominal cavity and on the second post-operative day the treating surgeon referred the patient to the closest regional centre where Ms M underwent an open operation for insertion of a T tube and repair of the common bile duct.  She has recovered well from the surgery but there is risk attached to any surgery to the biliary tree which may mean further complications requiring future surgery.  Ms M made a claim against Nene Clinical Commissioning Group which is responsible for Woodland Hospital, and the hospital has now settled the claim for a five figure sum.

Pursuing compensation claims for victims of medical negligence is important for two reasons. First, it enables those individuals to pay for the necessary support and rehabilitation they need; second, it ensures that hospitals and clinical practitioners tighten up their procedures to ensure such mistakes do not happen again. Lawyers acting for claimants in medical negligence cases need to be experienced in this area of law not only to ensure that the claim has merit but also that the most advantageous compensation terms are secured on behalf of their client.

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As leading legal directory, Chambers UK 2017, reported: Jeanette Whyman is an experienced practitioner with a caseload that includes neurological and obstetric claims. Sources highlight her as "very compassionate" and also note her “clear-headed attitude to cases.”

About the author

Jeanette Whyman Partner

Jeanette is head of the medical negligence team. Having worked previously for Hospital Trusts, Jeanette has extensive knowledge of hospital practices and procedures. This means that she is able to assess a case speedily and to anticipate the other parties' position – this enables her to put forward the best possible case on behalf of her client.