From 1 April 2019, NHS Resolution (NHSR) started operating a new state indemnity scheme for General Practitioners in England. It is called the Clinical Negligence Scheme for General Practice (CNSGP).

 

The scope of the scheme

 

As explained on NHSR’s website, “the scheme covers clinical negligence liabilities arising in general practice in relation to incidents that occurred on or after 1 April 2019”. The website goes on to explain the scope of the scheme, which “extends to all GPs and others working for general practice who are carrying out activities in connection with the delivery of primary medical services – including salaried GPs, locums, students and trainees, nurses, clinical pharmacists, agency workers and other practice staff”. It is a scheme with extensive scope, therefore. Essentially, the key question relating to scope is whether the services provided are NHS primary medical services.

 

It is important to note that treatment provided before 1 April 2019 is not covered by the scheme, even if the claim is reported after that date. On 6 April 2020, another new state indemnity scheme for general practice was established, the Existing Liabilities Scheme for General Practice (ELSGP). This scheme covers the historical liabilities of general practice staff before 1 April 2019 for those who were indemnified by MDDUS and MPS and is intended to complement the CNSGP. In other cases, the incident will need to be reported to the relevant medical defence organisation or other indemnity provider. It is also important to note that there are a number of incidents which fall outside the scheme, including privately funded work undertaken by GPs. NHSR helpfully provides a detailed table setting out the scope of the scheme and whether cover is provided in given situations[1].

 

The first year of the scheme

 

As at September 2022, the CNSGP has been running for 3½ years. On 23 August 2022, NHSR published its analysis of the first year of the scheme, 1 April 2019 to 31 March 2020[2]. NHSR notes that, “although 90% of patient contact in the NHS is via primary care, the number of claims are proportionally very low” (401 of 11,682 new claims notified to NHSR in the first year of the scheme, a mere 3.4%). It is no secret that GPs have an increasingly challenging role to play in a complex and difficult healthcare environment and the low number of claims is arguably testament to the quality and hard work of the majority of GPs. However, the figure is also likely to be artificially low, as it may take a few years for a claim to be made (in particular bearing in mind the limitation period of 3 years for adults), and of course pre-1 April 2019 claims fall under the ELSGP. The figures (along with associated costings) must be treated with the utmost caution, therefore, until we have had a few years of the CNSGP and trends can be analysed and the relevance of the ELSGP begins to wane.

 

What can be learned?

 

Most GPs are of course “generalists”. One might, perhaps unfairly, call them “jacks of all trades and masters of none” (whilst noting that some GPs undertake work in specialist areas such as minor surgery). As such they need to know a little about a lot of things. Most GPs are also under significant patient consultation time limitation, with time being a luxury GPs tend not to have. Accordingly, it remains very easy to make a mistake. The most frequent case notifications from the first year analysis related to cancer (9.3%), cardiac cases (7.3%) and sepsis (5.3%). Other reasonably frequent notifications included orthopaedic, gastrointestinal and bowel, neurological, dermatological and obstetric injuries, and DVT/pulmonary embolus. The most commonly reported themes were delay/failure to diagnose (43.5%), medication errors (18.5%) and delay/failure to refer (10%). Deaths accounted for 70 instances (18% of all GP notifications), with cardiac deaths making up 26%. Recurring common error themes were identified, which NHSR categorise as follows: communication with and about patients; medication and vaccine provision; errors in investigative processes; treatment and equipment provision; and timely diagnosis and assessment.

 

From this initial analysis, NHSR has drawn some conclusions. First, reducing delay in the GP cancer care pathway is likely to improve cancer survival, in particular bowel and breast cancer. Secondly, of the cardiac claims, the most common events were myocardial infarction (“heart attack”) and cardiac arrest (totalling 56%), with delay or failure to diagnose being the commonest problem. Thirdly, sepsis is estimated to account for nearly 40,000 deaths per annum in England and it is often a time-critical condition, with early suspicion, diagnosis and treatment being paramount to avoid catastrophic injury (such as amputation or brain injury) or death. Sepsis kills more people than breast, bowel and prostate cancer combined. The commonest error relating to sepsis was delay/failure to diagnose – 81% – which is a very significant proportion.

 

Avoiding medical errors: recommendations

 

NHSR has made a number of detailed recommendations in 3 key areas resulting from the analysis, which may reduce the number of medical mistakes.

 

The first area relates to the delay or failure in diagnosis, a commonly recurring theme in clinical negligence claims generally and certainly not limited to GPs. Diagnosis is a multifaceted and complex topic, nowadays including involving risk assessment, stratification and diagnostic tools, education, research, communication, etc. As a junior doctor, I was taught that up to 90% of accurate working diagnoses can be made if a full and proper history is taken, supplemented by a proper examination. History-taking and examination are skills requiring proper teaching/training, education, practice and experience, but notwithstanding those, one of the main problems is having the time within which to take a detailed history and perform a thorough examination; as noted above, time is a luxury many GPs simply do not have. This is not an easily soluble problem, therefore, and there is no quick fix but affording GPs more time seems key.

 

The second area relates to medication errors, in particular the topics of failure to prescribe/dispense and adverse reactions. Fortunately, many medication errors do not result in harm so serious claims relating to such errors are low. However, adverse drug reactions do occur and can cause catastrophic injury. I recall as a medical student that the houseman (now called a Foundation Year 1, FY1) in our firm[3] administered 10 times the required dose of digoxin to a patient because the decimal point was in the wrong place on the prescription chart: fortunately, no permanent harm was caused, but it was an early lesson to us soon to be newly qualified doctors as to how easy it is to make a mistake.

 

Finally, the third area relates to prison healthcare, in that the prison healthcare sector shows very considerable variation in the quantity and quality of provision of medical care which needs addressing.

 

Conclusion

 

In conclusion, there is little startling in this initial report by NHSR into the first year of the CNSGP, although the figures must be treated with caution. However, usefully it highlights in particular that claims concerning delay and failure in diagnosis, medication error, cancer, cardiac disease and sepsis are relatively frequent. These are reasonably predictable problem areas for GPs and, indeed, my own current caseload contains claims against GPs relating to most of these topics, which have resulted in life-changing injuries or death and for which substantial compensation is being sought. Such areas are by no means limited to GP care, though. Nevertheless, it will be interesting to see how the statistics over the next few years evolve under the CNSGP and to what extent these areas remain the problem areas.

 

[1] https://resolution.nhs.uk/wp-content/uploads/2021/10/CNSGP-Scheme-scope-table.pdf

[2] https://resolution.nhs.uk/wp-content/uploads/2022/08/3523-CNSGP-Report-DV5-SINGLE-Access-1.pdf

[3] A “firm” was the name given to a consultant-led team of junior doctors (often a Registrar, Senior House Officer and House Officer), which was replaced after about 2005 when medical training was ‘modernised’, although some wish to see its return as an effective medical apprenticeship model.

Written by Mumtaz Hussain

13^th September is annual World Sepsis Day, and an opportunity to highlight this condition and the way we can spot the signs.

Fact and figures

Sepsis is sometimes called septicaemia or blood poisoning, and is a potentially life threatening response to an infection. Sepsis occurs when the body tries to fight an existing infection, and basically goes too far in its attempt to protect itself, leading to an attack on internal organs. If sepsis is not treated early it can result in life changing injuries, and can even lead to death. According to the World Health Organisation (WHO) a 2017 scientific publication estimated that there were 48.9 million cases and 11 million sepsis related deaths globally.

The UK Sepsis Trust estimates that each year around 245,000 people are affected by sepsis in the United Kingdom and of those up to 48,000 sadly will not survive. These are huge numbers and where the sepsis has not been spotted it can lead to severe life changing injuries, such as amputation.

Life changing injury compensation

The best way to prevent sepsis is to minimise risks of, or to avoid infection altogether. This is not always possible however and therefore the next defence is to spot the signs of sepsis early and administer treatment. Because the body can deteriorate very quickly if sepsis is present, it’s crucial to spot the signs early. Here at Anthony Gold our team of serious injury solicitors represent clients who have suffered catastrophic injuries because their medical team provided substandard care in failing to spot the sepsis early enough to prevent significant damage. The ideal scenario is to prevent this happening so that the injured patient makes a full recovery.

Signs of sepsis

If there is an infection already present which the body is fighting, there is always the underlying risk that it could turn into sepsis. According to the WHO, some of the signs to look out for are:

• fever or low temperature and shivering
• altered mental state
• difficulty breathing/rapid breathing
• increased heart rate
• weak pulse/low blood pressure
• low urine output
• cyanotic or mottled skin
• cold extremities
• extreme body pain or discomfort

How can we provide sepsis support?

If you or anyone you know has been affected by sepsis then get in touch with our expert legal team and we will help you understand the process for making a claim for compensation.

 

Secondary Victims and Quantifying Psychiatric Claims Involving Children

Secondary victims who witness an accident

I recently settled a claim for psychiatric injury for post-traumatic stress disorder (“PTSD”) for a teenage client. The tragic turn of events was that my client, who was seven years old at the time, and their sibling aged five, were on their way home from school, having been collected by their mother, when my client’s sibling was hit by a lorry and fatally injured. My client had witnessed first-hand their sibling being killed.

Liability for the accident was established and the lorry driver served time in prison. My client’s mother and other members of the family who were on scene in the immediate aftermath were successful with their claims for psychiatric injury as secondary victims, although there was some dispute whether those on scene post the traumatic accident satisfied the criteria for bringing such claims.

The case law for secondary victims

The legal position remains as per the test set out in the leading case of Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310. Due to the potential for multiple claims for damages arising out of a single accident, the courts have been anxious to restrict the number of claimants and the criteria which must be satisfied, including the necessary proximity of a relationship between the claimant and the primary victim (the deceased). In short, additional hurdles to mere proximity of harm are that the claimant must:-

1. Have a relationship of love and affection with the primary victim;
2. Have witnessed the event or come across the immediate aftermath;
3. Have a direct perception of harm to the primary victim;
4. It must be foreseeable that a person of reasonable fortitude would be likely to suffer psychiatric injury witnessing such an incident.

Quantifying the claim

There was no question that my client met the eligibility criteria. However, quantifying their claim was far from straightforward. It was accepted that my client had no prior history of any psychiatric or psychological concerns. My client’s mother described them as an enthusiastic and cheerful child prior to the fatal accident. Unsurprisingly, given the close ages, my client was particularly close to their younger sibling. They shared a bedroom and played together. My client was reported to be suffering multiple symptoms following the tragic accident, including increased nervousness, aggression, mood swings, nightmares about the accident, intrusive memories and flashbacks. As my client grew older, they described feeling sad, not wanting to play with their friends, missing their sibling and feeling a sense of responsibility towards the sibling and concern for their parents.

Impact of witnessing the accident

My client lacked interest in their studies and life generally, causing their parents serious concerns that their behaviour did not fit in with that of children of their age. My client spent most of the time alone in their bedroom when not in school, often doing little. More importantly, the accident had a profound effect on their schooling. My client had changed schools due to the family moving away from the area where the accident occurred. Their academic achievements began to decline as they got older. My client struggled in all subjects but managed to pass a few GCSEs, though the results fell far below their and their family’s expectations.

Expert evidence confirmed that my client suffered with a moderately severe PTSD. Family therapy as well as individual therapy was recommended. Initially it was thought that with treatment my client had a good prognosis and would return to an increased level of functioning. However, unfortunately, my client found it very difficult to engage with treatment and this was stopped.

Our child and adolescent psychiatrist concluded this was a complex case where it was very difficult to provide for a definitive prognosis considering the overwhelming and enduring impact on the whole family. Alternative treatment was explored but that also proved difficult for my client.

Court approval in children cases

My client and their family were very keen to bring this claim to a closure. It was causing a lot of stress and anxiety. Litigation is always a stressful process, but it was more so for my client whose whole family had endured the impact of the traumatic accident. However, as my client was still a child, I explained any settlement would have to be approved by a judge in court and we simply could not settle the claim until we had a clearer prognosis. Further expert evidence was obtained, which confirmed that my client’s PTSD symptoms were ongoing, and that formal treatment was unlikely to help at this stage, given my client’s difficulty with engagement. Further alternative treatment was recommended including anti-depressants and buddy support to help my client engage with activities that were not connected to the family. It was recommended that there be provision for my client to have access to private therapy when they were older and felt able to seek treatment.

The case eventually reached a stage where it was felt to be in my client’s best interests to attempt settlement. However, there were uncertainties over whether they would finish formal education, move on to further education and hold down a job. During various discussions, my client had expressed a desire to study A levels and go on to university. However, whilst my client was very bright, they disliked studying and academically, they were struggling. There were concerns that if there were further episodes of deterioration in my client’s mental health requiring intensive therapeutic treatment, they were likely to have a very limited earning capacity and was therefore likely to suffer a loss of earnings. My client may also in such circumstances require additional care and support.

As with most cases involving children, it was very difficult to assess my client’s likely future if the accident had not occurred. For this purpose, it was necessary for us to look at the family history. My client’s case was complicated by the fact that one of their older siblings did very well and went on to obtain a professional job whilst their other sibling did not do so well.

Settlement for secondary victims

We put forward a claim for damages for the injuries themselves and claimed as financial losses past care and assistance, treatment costs, travel expenses and other bits and pieces as well as future losses, including treatment costs, care, professional support and future loss of earnings. The claim eventually settled for hundreds of thousands of pounds. My client and their parents were pleased to have reached an agreement.

This was a case that had taken a few years to settle, not least due to my client’s age, the need to wait for outcome of treatment, the uncertainties over their future and the very delicate family circumstances. It required very careful management.

 

Partner Sana Bibi is a personal injury specialist. Having suffered catastrophic injuries, her clients and their families have had their lives changed in an instant. Sana determinedly makes a difference to her clients’ lives and pursues a level of damages that will help them manage their new ‘normal’. You can reach her at sana.bibi@anthonygold.co.uk or on 020 7940 4060.

It is hard to believe that almost 2 and a half years have passed since the country first went into lockdown following the start of the Covid 19 pandemic. Working practices have changed dramatically since that time, but as we continue cautiously to return to the office, face to face meetings and other old ways of working, albeit for most people as part of a new hybrid working model, real advancements have been made in the way we work and in my opinion, the main benefactors are our clients.

Injury and Medical Claims early in the Covid Pandemic

In the Anthony Gold Injury and Medical Claims (IMC) department, we represent a wide range of very seriously injured clients, ranging from clients with traumatic brain injuries, to amputations, to complex regional pain syndrome and functional neurological disorders. Very often, our clients suffer from very poor mobility and in the most extreme of cases, no mobility at all and this makes face to face meetings particularly difficult.

Early on in the pandemic, I would arrange Zoom video conference calls with clients and I quickly learned that for the most part, my clients found them preferable to coming into the office to see me or me travelling to see them at home. We suddenly had a great deal more flexibility in terms of setting up meetings at much shorter notice than normal and one of the things I have discussed at length with clients engaging in these meetings and which I have found they particularly appreciate is being able to conduct the meeting from the comfort of their own home and in some cases, in their pyjamas! Many clients have told me how much more comfortable they have felt conducting meetings in this way.

 

Change for the better

I personally believe that Covid accelerated a way of working that was already on the horizon, but which was perhaps still a good 5 to 10 years away, maybe even more. As a business, we had already started to go towards a paperless office environment before Covid hit us, but with all solicitors being forced to work exclusively from home in early 2020, we had no option but to go entirely paperless much quicker than we had been planning to do.

Running the sort of high value, serious injury claims that we deal with at Anthony Gold does involve a great deal of paperwork, but in this modern era, this is all paperwork that can easily be sent remotely and securely. The days of law firms having room after room of shelving crammed full of paper bundles and medical records are on the way out, as we turn to a much more modern and efficient system of scanning all documents onto our computers and consequently being able to move them between recipients at the click of a mouse. This of course is also so much better for the environment.

One of the major advancements in what is traditionally a very old-fashioned profession has been the manner in which the Court have adapted to this new way of working. Gone are the days of having to file original hard copy documents with the Court, now you can be sitting at home, electronically sign a document and then e-file it at the High Court in an instant.

 

Pros and cons of remote working

Remote working has also seen a huge increase in productivity, which in turn enables solicitors to be far more proactive in progressing claims for their clients. For example, on days when I commute into the office, I am travelling for 2 and a half hours in total. On days when I am working from home, I spend those 2 and a half hours working instead, which culminates in a far more productive day. This in turn enables me to really stay on top of my workload and provide the best level of service that I possibly can to every single one of my clients.

Of course, there is also always the temptation to check your emails of an evening with your workstation being in touching distance at all times, which in the Simons household has certainly led to one or two heated discussions about when to switch off, both literally and metaphorically! However, the reality is that we are all much more readily accessible in this new era of remote working and have learnt to get things done much quicker than we were perhaps able to do before.

 

Who benefits from remote working?

There is no doubt that remote working benefits everyone, but the main benefactors are definitely our clients. We are acting for people who have suffered often life-changing injuries and who are in need of a great deal of rehabilitation and help generally to get their lives back on track. Working in the midst of a pandemic has enabled us to introduce ways of working that have allowed us to expedite this process and put even more focus on getting our clients the help that they so urgently require.

For us, the claim process is not about getting from A to Z as quickly as we can. A personal injury claim represents a journey, one which we will be on with our clients for likely several years and at the end of which, we will have done all that we possibly can to ensure that our clients walk away from the claim with the best settlement possible.

However, the process itself is daunting, lengthy and for many people, very stressful and exhausting. What I have seen, however, over the course of the past 2 and a half years, is that we have been able to reduce the stress and disruption to our clients by changing the way in which we work and by doing simple things such as communicating largely by email, rather than post (thus removing the need for a seriously injured client to have to find their way to a post-box), or holding meetings and conferences over Zoom (thus removing the need for our clients to travel to and from meetings) and even processing payments (whether interim payments or final awards of damages) by BACS transfer as opposed to the old fashioned way of making payments by cheque.

These are all things that would have happened at some point or may have already started to happen, but a global pandemic forced our hand and in doing so, has improved upon the already high levels of service that we provide to all of our clients.

Written by Mumtaz Hussain

Today May 13^th is “spinal cord injury awareness day”, an annual event led by Spinal Injuries Association. The theme this year is to highlight the many daily challenges faced by those who have suffered a spinal cord injury.

Often it’s easy to take simple things for granted, such as filling the kettle for a cup of tea or making the bed. However for someone with a spinal cord injury these simple tasks can present as a major challenge. Climbing stairs can also be very difficult, and sometimes simply not at all possible, depending on how complete their injury is.

We have previously heard from our own Hema Vekaria, an Associate solicitor on our personal injury team, who sustained a spinal cord injury in 2018. Hema has written about her experience in this personal account.

All spinal cord injuries are different and recovery varies from person to person. Fortunately Hema is able to walk although she was a wheelchair user for a time. As a result of having experienced first hand what it means to sustain such an injury, Hema is easily able to empathise with her clients who have sustained similar injuries.

As a team, we are passionately dedicated and focused on providing support for our clients who, through no fault of their own, have sustained a spinal cord injury. Where we provide our considerable expertise to ensuring our client’s legal battle is hard fought and successful, we rely on collaborations with organisations such as Spinal injuries Association, so that our clients also have a support network that runs alongside the legal side of matters.