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Ben Lees reviews the findings of the recent Flynn report into avoidable deaths in south Wales, and considers how the government’s fixed fee proposals in Clinical Negligence will deny patients and their families’ access to justice.
By Ben Lees
I have been reading the recent Flynn report, which was published following the conclusion of Operation Jasmine. Operation Jasmine was a major Gwent Police investigation which started in 2005. The aim of Operation Jasmine was to look into 63 deaths in care homes and nursing homes in south east Wales which were a cause for concern.
Shockingly the report found that in many instances, older people’s injuries, pain and life-threatening deep pressure wounds were unobserved, unreported, reported inaccurately and/or reported belatedly. My colleague Rebecca wrote recently about the cause of pressure sores, so I will not go in to general detail here. According to a statistic referenced in the report, clinicians estimate that 90% of pressure ulcers are preventable.
Firstly there is the human cost. The Office of National Statistics estimated that more than 27,000 people died from pressure ulcers or infected wounds in 2010. Given that the overwhelming majority of pressure ulcers can be prevented, that is potentially a startling number of unnecessary deaths each year.
Secondly, there is the financial cost. According to the Tissue Viability Society the treatment of pressure ulcers is estimated to cost £2.3-£4.9 billion each year; this staggering figure could pay for 288-613 nurses during their career. Again, given that the vast majority of pressure ulcers can be prevented, think about how much money the NHS would save per year if the root cause of the problem was addressed.
The government is proposing a regime whereby fees for lawyers representing patients who have been injured as a result of negligence are fixed with reference to the monetary value of the damages (rather than the complexity of the case for instance). Alongside this, there is a proposal to cap the fees that can be paid to medical experts who assist with the medical aspects of a case.
Depending on the severity of the pressure sore suffered, cases involving negligently caused pressure sores tend to involve lower amounts of compensation even if the pressure sores result in death. The reason for this is that pressure sores usually affect the elderly due to having more vulnerable skin and being less mobile. Elderly patients are not usually working, so there is no claim for loss of earnings as a result of the injury. Further, because of the more limited life expectancy of an elderly patient, any claim for future treatment or care is usually extremely limited.
In contrast, the cost of investigating and fighting pressure sores claims can be high. I know from my own practice that you need to obtain and review large volumes of medical notes, and often require experts in more than one discipline to be able to answer questions of whether there has been negligence and whether the patient has suffered avoidable injury as a result (referred to as causation). Even then, Defendants will often refuse to make an early admission of liability (despite the fact that the vast majority of pressure sores are preventable). This means that lawyers have to incur more costs fighting the case.
If fees are fixed below a level that will allow pressure sore cases to be investigated and fought, lawyers will simply not be able to take them on.
The upshot? Patients who have suffered unnecessary pressure sores and the associated suffering, which can not and should not be under-estimated, and the families of patients who have died as a result, will be denied access to justice for that avoidable suffering.
If 90% of pressure sores are preventable, and the treatment of pressure sores costs the NHS £2.3 – £4.9 billion per year, then preventing unnecessary pressure sores would save the NHS £2.07 billion – £4.4 billion per year.
It seems rather obvious, but would it not be better in every respect to prevent unnecessary pressure sores in the first place?
Addressing the root cause of pressure sores would save lives, save money, and leave access to justice intact. Instead, the Department of Health’s solution is to strip society’s most vulnerable individuals of their right to legal redress.
In what other sector would the answer to underperformance and over-spending be the removal of accountability? I suppose the banks were de-regulated in the eighties and nineties…we all know how that worked out.