A ‘never event’ is a term that most people will hope never to come across when undergoing medical treatment. The term is used to describe entirely preventable incidents that either potentially or actually cause harm to patients.
The NHS is very transparent in reporting any never event cases and the provisional figures published on 11 February 2021 detail the events which occurred between 1 April and 31 December 2020. During this period, 271 serious incidents met the NHS definition of a never event, out of a total of 296 potential never events reported. The previous period included NHS incidents reported between 1 April 2019 and 31 March 2020, and during this longer period 472 of 502 incidents reported met the definition of a never event. Whilst it is unfortunate that these errors happen at all, it is encouraging that NHS England is dedicated to identifying and reporting these events so that lessons can be learned and preventative measures put in place.
The term ‘never event’ can cover a wide range of issues; for example, surgery may have been performed on the wrong body part. The provisional data for April to December 2020 includes situations where the wrong tooth was removed and the wrong limb was operated on. In more extreme circumstances, the data also shows that in some situations procedures were carried out on the wrong patient.
A never event can also take place if surgical equipment such as swabs are left inside a patient after a procedure. In such cases the never event may only be reported if, regrettably, the patient becomes unwell as a result of the retained item or if the item is later identified on a subsequent x-ray or scan.
As with all clinical negligence claims, both breach of duty and causation must be established in order to succeed with a claim which involves a never event. If an internal investigation has already identified the issue as a never event, an admission of breach of duty is usually forthcoming. What can be harder to establish is causation - that is, to prove the impact or loss that the never event has had on the individual.
In cases of a retained body, a never event can often mean that the patient needs to undergo further surgery in order to remove the item. This can lead to additional scarring and a longer recovery time. If an unnecessary procedure has taken place, a patient may also have experienced avoidable emotional and physical distress. In cases where the wrong body part has been operated on irreparably, the damage cannot be undone.
In such situations, the aim of the clinical negligence team at Penningtons Manches Cooper is to obtain compensation for the claimant that will put them back in the position they would have been in but for the never event, as far as a financial award is able to do so. In cases where irreparable damage has been done, this would involve obtaining compensation to assist the claimant in living with a new lifelong disability.
The surgical errors subteam has experience of dealing with a broad spectrum of cases stemming from never events, and is currently acting on a case relating to damage caused by a never event where surgical equipment was left behind during a procedure. Expert evidence has been obtained which confirmed that this led to the unnecessary loss of a limb.