Never Say Never

NHS “never” events are in the news again. The Independent has run an article this week which mentions that analysis by the Press Association has found over the last four years a total of more than 1,100 “never events”.

The article quotes Mr Peter Walsh, the chief executive of Action Against Medical Accidents, who is reported as stating: “The rate of so called “never events” that continue to occur in the NHS, causing harm and untold misery to patients and their families is totally unacceptable. The events are by definition totally avoidable if routine guidelines are followed.”

In the same article, Katherine Murphy the chief executive of the Patients Association, was quoted as stating, “it is a disgrace that incidents which are supposed “never” to happen are still so prevalent.”

The term “never event” originated from the USA around 2001 when it was used to describe particularly shocking medical errors that should never occur.

In 2009 the term “never event” was introduced into the UK as a result of a government led review into the provision of high quality care. One definition of a “never event” is:
“serious, largely preventable patient safety incidents that should not occur if the available preventative measures have been implemented by health care providers.”

In the Independent article it mentioned a case where at an NHS hospital a woman underwent an operation to remove her appendix and somehow the clinicians were responsible for removing her fallopian tubes instead!

The article also mentions a case where a kidney was removed instead of an ovary, where a man’s testicle was removed instead of just the cyst on it.

One of the first clinical negligence cases I undertook was for a gentleman who went in for a routine hip replacement procedure. As part of the safety protocol a very large fluorescent arrow was painted on his leg pointing in the direction of the hip which needed replacement. What on earth can go wrong in such a situation?

When the patient woke up, the surgeon who was clearly embarrassed and red faced, told him that unfortunately they had operated on the wrong hip!

The reason why this was done was because the patient had been placed on the wrong side hence the fluorescent arrow could not be seen. It does make you think that perhaps the answer to that problem was to mark the good hip by saying something in huge fluorescent writing “not this one!”

Unfortunately, most clinical negligence practitioners have over the years pursued cases where a “never event” has arisen. Another classic error relates to the retention of foreign objects inside a patient following surgery. This sometimes involves retained swabs but I have been involved in a case where a scalpel blade had been retained.

The NHS regularly publish data on “never events” in the hope that that will assist in the reduction of these incidents, but they continue to occur and one might be tempted to question whether one should not be using that phrase since the incidences do not seem to be diminishing.

Is there anyone who would argue that a patient who has suffered from a “never event” should not have the right to pursue the claim against the NHS Trust for compensation?

At present, patients still have access to justice. However, on the near horizon there are worrying signs.

The government advocates the introduction of fixed fees in litigation cases including clinical negligence. The concern is that such fees will make claims of this nature uneconomic to pursue – so will people have access to justice in such cases in the future?

If the NHS do not learn from their mistakes and they are not brought to account then it appears likely that we will continue to read yearly reports on “never events” which despite the name occur with worrying regularity.

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Gerard Sanders

Partner, Personal Injury & Clinical Negligence

Gerard qualified with a large regional firm in 1991. Since 1995 he has specialised exclusively on claimant personal injury work. More recently he has focused...

Partner, Personal Injury & Clinical Negligence

Gerard Sanders

Gerard qualified with a large regional firm in 1991. Since 1995 he has specialised exclusively on claimant personal injury work. More recently he has focused on complex higher value clinical negligence and personal injury claims.

His greatest success has been winning the high profile case of Delaney-v-The Secretary of State for Transport where after almost 9 years of litigation involving two Court of Appeal hearings and an application to the Supreme Court he was finally able to establish that the Motor Insurers’ Bureau Agreement was incompatible with EEC law. As a direct result of the decision in this case the agreement has had to be amended to the benefit of many future victims of uninsured drivers.

Gerard is a member of the Law Society’s Personal Injury Panel and he appears in the latest Legal 500 rankings in the fields of personal injury and clinical negligence.

Gerard’s other professional qualifications include a Diplome D’Etudes Juridiques Francaises from Strasbourg University.

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