An Overview of the UK System
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The Cost for the Nation
Personal Injury and Road Traffic Accidents
In 1966 the Dept of Environment, Transport and the Regions (DETR) estimated the costs of road trauma1, which accounted for over a third of the 9,000 deaths due to injury each year. Costs were calculated in terms of direct medical expenditure, loss of economic activity and human aspects of grief, suffering and pain. It was concluded that in 1966 the total cost savings to the Nation achieved by the prevention of road trauma would be greater than £20 billion/year.
There is evidence that current standards of practice require review. A joint report in 2000 entitled Better Care for the Severely Injured2 criticised management of seriously injured patients, concluding that 12% patients had “sub optimal” treatment and noted that no data was available with respect to disabilities related to major trauma.
Current practice involves protocols which must have an association with a compromised outcome as a function of inaccuracy of plan translation into the patient. The parameters of successful outcome are often arbitrary and not equivalent to optimum outcome. It is to be noted that such comparable practice has been abandoned in manufacturing industry which has since demonstrated quality improvement.
In healthcare it is argued that acceptance of debility following a clinical intervention requires re-examination within systems such as Engineering Assisted Surgery that have indicated an early ability to address these problems.
Best Practice is a complex concept of many parameters in relation to accepted National Standards of outcome. In the United Kingdom crucial data is not freely available, or has not been documented and there are few agreed national standards. This has an adverse effect on clinical audit, evidence based practice and clinical governance issues.
Personal Injury and Disability
The Cost for the Nation
The annual cost for the Nation of personal injury and secondary disability, is unknown
Cost for the Nation
Estimation Medical Negligence Costs 2001
In 2001 the cost of personal injury related to medical negligence was estimated by National Audit Office3 at £2.6 billion with an additional £1.3 billion to include impending negligence claims. Cerebral palsy and brain damage cases amounted to 80% of claims. Whilst these figures have been based on the analysis of data on closed claims since 1995, the Association of Personal Injury Lawyers4, in a response to this document, warn that different accounting policies/periods were used in compilation of 1990's data without the separate identification of compensation payments and legal costs. Interpretation of such data requires caution.
It is to be noted that these figures are well below 1966 DETR estimates for the huge cost for the Nation of personal injury related to road traffic accidents alone. In view of the magnitude of these projections it is logical to argue that the prevention of significant disability following injury is of paramount importance to the Public and the Nation.
Adverse events occur in 10% of NHS admission (>850,000 patients/year) and cost £2billion/year in additional hospitalisation expenditure5. The introduction of precision diagnosis, planning and treatment modalities must occur if these issues are to be addressed.
Reform of Medical Negligence : The Woolf Report
On 17th January 2001 The Lord Chief Justice, Lord Woolf issued a stark warning to the medical profession that the courts would no longer apply a deferential "Doctor Knows Best" doctrine in medical negligence cases. Lord Woolf, the most senior judge in England and Wales made it clear the courts had no sympathy with doctors' arguments that a "compassion culture" is responsible for the huge bill for negligence run up by the United Kingdom's National Health Service. He laid the blame firmly at the door of the medical profession. He said that the scale of litigation showed the Health Service was "not giving sufficient priority to avoiding medical mishaps and treating patients justly when those mishaps occurred..... It was clear to the courts that the hospitals and the medical professions could not be relied on to resolve justified complaints justly".
The Medical Profession's approach of fighting every negligence claim resulting in "particularly bitter and often singularly unproductive" litigation is just one of a series of factors identified by Lord Woolf to explain why the courts have abandoned the "excessive deference" they showed doctors in the past. Judges, he said, were "not oblivious" to the recent "series of well publicised scandals" and cited the "deterioration in confidence [in doctors] by the public and Judges alike", was suggested by a 30% rise in the annual level of complaints to the UK's General Medical Council.
Lord Woolf said that he "could not help believing" that those involved in the scandals had "lost sight of the limits on their powers and authority. They acted as though they were able to take any action they thought desirable, irrespective of the views of others". He supported the shift from "the doctor knows best" to the current view in which "it could be said that doctor knows best if he acts reasonably and sensibly and gets his facts right".
Sir Donald Irvine, General Medical Council President, warned doctors that there were "deep seated flaws in the culture and regulation" of the profession and that never before have doctors felt so angry, undervalued and disillusioned". But Sir Donald also accused doctors of "excessive paternalism, lack of respect for their patients and their rights to make decisions about their care, and secrecy and complacency about poor clinical practice".
Reform of Medical Negligence Law
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Woolf Report Reforms
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These reforms in medicolegal practice are part of a generalised reform of the legal system with a shift away from the adversarial culture to judicial management. In Lord Woolf's report: Access to Justice (1996), he recommended 'the establishment of a Civil Justice Council as a continuing body with responsibility for overseeing and co-ordinating the implementation of his proposals.
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Handling clinical negligence claims in England
REPORT BY THE COMPTROLLER AND AUDITOR GENERAL
HC 403 Session 2000-2001: 3 May 2001
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Demands on the NHS
The NHS operates within a system of complexity never previously seen, and as such it is an unwilling victim of its own level of success. An historical lack of investment, increasing workload, spiralling costs and recruitment problems, are evident with a concomitant demand for standards of excellence. Previous reforms to the original “recipe for success” have not improved the incidence of medical mishaps alluded to by Lord Woolf.
Interpretation of Medical Negligence Data
Interpretation of medical litigation data published from the 1990's must be treated with some caution as these figures pertain to different accounting policies/periods and aggregated cost of outstanding claims, many of which will not be settled or paid for many years4. An actual study by Fenn at al.6 attempted to address errors of published data from the 1990's. It was calculated that the rate of litigation increased from 0.46 to 0.81 closed claims per 1000 finished consultant episodes, between 1990 and 1998, and litigation costs in the 1990's rose at a rate of 7% per annum for closed claims, after adjustment for hospital activity - i.e. without evidence that litigation costs are soaring as has been claimed by the press and media.
Standards of Practice
Standards are demanded that are impossible to maintain with current practice and it is contented that no effective reforms can be implemented whilst the NHS maintains its current level of dependency on the individual skills and performance of its workforce, who work within a system which Lord Woolf has advised “is not giving sufficient attention to the avoidance of mishaps”.
Whilst the introduction of the concepts of clinical governance herald new gold standards of care guidelines, these are not currently matched by medicolegal standards related to duty of care
If we are serious about improving quality, these standards must merge into a universal standard of clinical acceptability.
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Potential Roles of Engineering Assisted Surgery (EAS) in Surgical Practice
1. Enhanced Diagnosis
2. Enhanced accuracy in Planning
3. Patient counselling and Informed Consent
4. Surgical Prediction
5. Facilitation of transfer of plan to patient
6. Reduction of operator error
7. Reduction in Surgical trauma
8. Enhanced Outcome
9. Facilitation of Audit
10. Medicolegal Assessment of Personal Injury
Medicolegal Assessment of Personal Injury
Engineering Assisted Surgery
1. Treatment Planning
The use of EAS and rapid prototyping technology in the treatment planning of complex trauma cases has recently been tested in litigation in the United Kingdom (1999). The case was subject to peer review, and an independent medical report stated that this technology:
- "had brought engineering precision to the operating table" and that
- "this precision had not been reported by those not relying on skull models".
Furthermore it was confirmed that the case was completed "without complication" and "without prolonged hospitalisation".
Substantial damages were won by the Surgeon against the Purchasers in an out of court settlement.
2. Clinical Governance and Duty of Care
EAS technology has profound implications with respect to the management of trauma and surgery of the skeleton in general. It is advocated that the use of Engineering Assisted Surgery techniques, and especially rapid prototyping technology, will rapidly become the standard of care within the framework and guidelines of clinical governance. It is logical that with the passage of time, clinical governance guidelines will merge with duty of care requirements in clinical practice.
3. Medicolegal Practice - UK Seminars
EAS and the use of anatomical biomodels models illustrate very clearly the nature and severity of injury. It is advocated that this technology will revolutionise the description, evaluation and management of personal injuries across many specialties, and make a major contribution in the reduction of human error in clinical practice. The technology will encourage early settlement at arbitration and avoid the expense of going to court.
Medicolegal conferences discussing the applications of Engineering Assisted Surgery, Personal Injury and Medicolegal Practice are currently being planned in conjunction with Professional Solutions.
Lessons are to be learned from the experience of other industries. The implementation technology, designed to improve quality and reduce mishaps, requires the ability agree strategies within a protective environment of declared interests within established practice. If optimum performance is to be realised a change in culture is required. Human input is not infallible and to build a healthcare service of such complexity on this cornerstone has not delivered, nor shall deliver, the quality of service demanded by the public.
It is of paramount importance that these issues be examined within the technological advances that have been made within the last 40 years. The setting up of a multidisciplinary National Centre of Engineering Assisted Surgery is advocated to coordinate research and development in this area.
1. Valuation of Road Accidents. Highway Economics Note. No 1 Department of Transport 1966
2. Royal College of Surgeons of England & the British Orthopaedic Association. Better Care for the Severely Injured. July 2000. Link http://www.boa.ac.uk/PDF%20files/severly%20injured.pdf
3. Handling clinic negligence claims in England. Report by the Comptroller and Auditor General. HC 403 Session 2000-2001: 3May 2001. Publishers: London: The Stationery Office. Link http://www.nao.gov.uk/publications/nao_reports/00-01/0001403.pdf
4. Department of Health. Clinical negligence: What are the Issues and Option for Reform? A response by the Association of Personal Injury Lawyers October 2001. Link http://www.apil.com/pdf/consultation/con59.pdf
5. Department of Health. “An organisation with a memory": Report of an expert group on learning from adverse effects in the NHS chaired by the Chief Medical Officer 2000
Fenn P. , Diacon S., Gray A., Hodges
R., Rickman N. Current cost of medical
negligence in NHS hospitals: analysis of claims database
British Medical Journal 2000; 320: 1567-1571.
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