Alarm bells sound over rise in NHS negligence claims as A&E services are stretched to capacity

Posted: 17/05/2013

Penningtons Solicitors LLP's clinical negligence team is dealing with increasing numbers of enquiries from patients concerned about the quality of care they have received in A&E departments combined with a rise in claims involving all types of emergency medicine – including out of hours and ambulance services.

Recurrent themes seen by the team are a lack of access to good out of hours non-emergency medical services for patients (which has become a more serious problem since GPs largely gave up providing out of hours care) and doctors who are under pressure to get through lists of patients not taking a full history and so missing key information that would highlight a potentially serious condition. They may also make a diagnosis of symptoms which could be consistent with a minor illness while failing to exclude the possibility of a much more serious condition requiring urgent attention that presents some or all of the same symptoms. These issues, as well as problems associated with poor communication, are the most common sources of problems that Penningtons sees.

It appears that it is not just staff resourcing which is at the heart of this but the methods of financing for A&E departments. Chris Hopson, chief executive of the Foundation Trust Network, which represents more than 200 health trusts in England, has described the way that the NHS pays hospitals for admitting A&E patients as 'broken'.

Under current rules, if a hospital admits more A&E patients than it did five years ago, it will only be paid 30% of the cost of treating those patients. Two-thirds of hospitals are admitting more patients than in 2008, some as many as 40% more. This means greater physical and human resources are needed to cope with this extra demand.

Yet, according to Chris Hopson, hospitals only get paid 30% of these costs. Some are losing more than £5 million a year as a result, on top of the 5% savings which they are already being required to make. This creates an impossible situation whereby more patients are using A&E departments which have less funding per patient to deal with them.

Mr Hobson added: “A&E services have been under huge pressure and although performance is now stabilising, there is a danger that the system will fall over in six months time unless we plan effectively for next Winter. The wider NHS system isn't working effectively. Patients can't get the GP appointments they need, many doctors' out of hours services aren't working in the way they should and patients simply don't know where they should be going to get the right emergency care.”

This reflects the experiences of Penningtons' clinical negligence lawyers who are seeing patients struggling to get responsive out of hours medical care unless they go to A&E where they may be stuck in huge queues of patients needing assessment and treatment.

Health Secretary Jeremy Hunt told ITV’s Daybreak programme that an increase in the amount of people in A&E has created additional pressure on the service. Mr Hunt said an extra one million people per year have used A&E since the coalition government came into power in 2010 and agreed that the service is under 'pressure'.

Hospital staff share the concerns of patients and NHS trusts. The College of Emergency Medicine has called for urgent reforms of A&E departments and says that the working environments for A&E staff are at times 'intolerable, associated with risk for them and their patients'.

A report published by the College found that departments are struggling to cope with ‘unsustainable’ workloads and are ‘chronically’ understaffed. Some 6% of A&E departments are reporting never events – specific adverse incidents (such as leaving a surgical implement in a patient) which should never occur in practice – and automatically constitute negligence on the part of the medical staff concerned. Again this reflects what Penningtons is seeing – increasing numbers of never events and claims arising from them.

Philippa Luscombe, partner in the clinical negligence team, said: “A&E services seem to be stuck in a vicious circle – more patients are attending, there is less funding available, resources are over stretched and so it appears that more mistakes are being made. These mistakes cost the NHS more money – not just where patients bring claims but also due to the additional medical treatment they may then require. Given the launch of the new 11 service and the reduction in A&E departments nationwide, it is imperative that steps are taken to focus on ensuring that only emergency patients attend A&E departments and that they receive a safe standard of care.”

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