Analysis

Clinical negligence: the accusation no nurse ever wants to face

NHS staff are insured by their employers, but indemnity cover for nurses in independent settings is less clear-cut
Illustration shows worried nurse treading a fine line

NHS staff are insured by their employers, but indemnity cover for nurses in independent settings is less clear-cut

  • Nurses in general practice and other independent employment settings did not have automatic indemnity cover until recently
  • New clinical negligence insurance scheme gives practice nurses cover against clinical negligence claims
  • Experts share their practical tips on what nurses can do to minimise risk of clinical negligence allegations

Indemnity insurance those two words hold huge significance for every NMC registrant.

This is because a clinical negligence claim has the potential to devastate the professional life of any nurse, midwife or nursing associate. And while anyone employed by the NHS is secure in the knowledge they are indemnified against such claims, insurance arrangements for staff on other contracts has not been so clear-cut.

New

NHS staff are insured by their employers, but indemnity cover for nurses in independent settings is less clear-cut

  • Nurses in general practice and other independent employment settings did not have automatic indemnity cover until recently
  • New clinical negligence insurance scheme gives practice nurses cover against clinical negligence claims 
  • Experts share their practical tips on what nurses can do to minimise risk of clinical negligence allegations

Picture: Dan Mitchell

 

Indemnity insurance – those two words hold huge significance for every NMC registrant.

This is because a clinical negligence claim has the potential to devastate the professional life of any nurse, midwife or nursing associate. And while anyone employed by the NHS is secure in the knowledge they are indemnified against such claims, insurance arrangements for staff on other contracts has not been so clear-cut.

New scheme to cover clinicians in general practice

10,673

new clinical negligence claims were reported to NHS Resolution in 2017-18

Source: NHS Resolution

A clinical negligence scheme set up earlier this year is an attempt to dispel the concerns of nurses working in general practice.

The Clinical Negligence Scheme for General Practice provides indemnity cover for all general practice nursing staff who provide NHS services in England. Staff in out-of-hours services, walk-in centres and prison primary care services are covered too. 

Since 1 April 2019, the scheme has covered clinical negligence liabilities arising from an act (or omission to act) of someone providing a general practice service connected to diagnosis, care or treatment that results in personal injury or loss to the patient.

In Wales a similar scheme, called General Medical Practice Indemnity, was introduced at the same time. Scotland is understood to be considering a general practice indemnity scheme. Currently, in Scotland and Northern Ireland, GPs continue to arrange indemnity cover through their medical defence organisations.

The RCN welcomed the scheme, saying it has had to support nurses in the past whose general practice employers had failed to indemnify them adequately, or had even left them out of their indemnity packages all together.


Prescribing errors are a common complaint in litigation cases Picture: iStock

Counting the cost of claims

Litigation represents vast expense for the health service. In 2017-18, the NHS in England paid more than £1.63 billion in damages to patients, and NHS Resolution says the cost of clinical negligence is at an all-time high.

Most claims relate to emergency care and orthopaedic surgery, but obstetrics claims are the most costly.

Being sued for clinical negligence is a nagging fear among many healthcare professionals. 

Indemnity for nurses working outside the NHS

If you work in the NHS, the principle of vicarious liability means that, should you be found to have acted in a negligent manner, your employer accepts financial liability.

Those employed outside the NHS or general practice – in a private clinic, for example – do not always enjoy that level of certainty. Although their employer is still liable, this does not guarantee it has the correct insurance cover in place in the event of a claim.


Roz Hooper, the RCN's head of legal
services (regulatory). Picture: John Houlihan

The employer could end up seeking a contribution towards costs from the nurse whose practice was implicated in the claim.

In reality though, says RCN head of legal services (regulatory) Roz Hooper, the risk of this happening is minimal: ‘In theory, employers outside GP services and the NHS could seek a contribution from somebody but it is our experience that they do not.’

Complaints and negligence claims

The Medical Defence Union (MDU), which offers support to nurses as well as doctors, says that in the five years to 2015 it helped with more than 400 complaints, claims and other issues that involved nurses.

MDU medicolegal adviser Kathryn Leask says: ‘We’re supporting an increasing number of nurses with cases and there is a trend towards allegations being made against nurses, particularly nurse practitioners, in their own right.’

She emphasises that all nurses must take responsibility for their own indemnity – not only because the number of cases they are involved in is rising but also because it is a legal requirement. 

Indemnity and NMC registration

Since 2014, all healthcare professionals have been required to hold appropriate indemnity cover. In fact, nurses cannot register or renew their registration without it.

69.6%

of NHS claims in 2017-18 were settled without formal court proceedings

Source: NHS Resolution

The requirement is explicit in the Nursing and Midwifery Council’s (NMC) professional code, section 12 of which states: ‘You must make sure that you have an appropriate indemnity in place relevant to your scope of practice.’

While nurses working for the NHS or a private company should, through vicarious liability, be covered by their employer, separate arrangements are required by those who are self-employed, who volunteer or who act in a so-called good Samaritan capacity, in which they provide immediate basic care in an emergency situation outside work.

In these circumstances, either you should arrange your own cover or check the terms of the indemnity provided by your trade union or professional body.

‘Even when somebody has been found not to have done anything wrong, their confidence takes a terrible knock’

Roz Hooper, head of legal services (regulatory), RCN 

RCN or Unison membership, for example, will provide you with indemnity in good Samaritan cases, providing you were acting only within your competence.

The RCN scheme extends to those who are self-employed and is a lifeline for many bank and agency nurses.

So nurses who comply with the law and with the NMC’s requirements in relation to indemnity are effectively safe from financial claims against them personally.

RCN’s indemnity scheme


The impact of clinical negligence on nurses

Of course, being insured does not diminish the stress of facing investigation or being found responsible for clinical negligence.

‘The experience of being involved in one of these claims is dreadful,’ says the RCN’s Roz Hooper.

‘Even when someone has been found not to have done anything wrong, just because of their involvement they become anxious and their confidence takes a terrible knock.’

Claims invariably relate to incidents that occurred months or, more likely, years beforehand.

For the patient, it may have been a one-off interaction, and therefore easier for them to remember. But for the nurse, who will have seen many patients subsequently, precise recollection of events can be difficult.

And claims usually follow what might be perceived as a minor mistake or infraction. ‘There will be nothing exceptional about it to remember,’ says Ms Hooper.

How to avoid claims and complaints


Robust records of discussions with patients and colleagues may prove invaluable

Medical Defence Union (MDU) medico-legal adviser Kathryn Leask says: ‘Our advice to help nurses minimise the risk of a complaint or claim includes keeping your knowledge up to date and working within your level of competence.’ She advises:

  • If in doubt about a diagnosis, get advice from a medical colleague or refer the patient for further investigation and make a note of this
  • Communicate clearly with patients about the risks, benefits and alternatives of any treatment, and check that the patient knows under what circumstances and timeframe to seek further medical advice
  • Keep a record of all discussions with patients and advice sought from colleagues, and record positive as well as negative findings
  • Medicine is not an exact science and things can go wrong. If an error occurs, apologise to the patient, explain what has happened and what can be done to rectify things

RCN head of legal services (regulatory) Roz Hooper suggests:

  • Checklists are a powerful means of supplementing patient records and can help reduce the need for lengthy notes
  • Include photographic evidence in records, where appropriate
  • Adhere to local and national practice guidelines

 

Common reasons nurses find themselves the subject of clinical negligence allegations

The MDU’s Dr Leask says: ‘Common reasons for cases we see involving nurse practitioners include wrong or delayed diagnosis, delayed referrals and prescribing errors.’

MDU cases involving practice nurses commonly feature wound management, phlebotomy, vaccinations and intramuscular injections. Good practice is perhaps the best protection against allegations of negligence.

Local or national guidelines, for example, are designed to minimise risk and help deliver safe, optimal care. When nurses, for whatever reason, fail to follow such guidance, the consequences can be catastrophic.

The basic error that led to life-changing injury

Jane* had just begun a university degree when she was involved in a serious car crash. Part of her skull was removed to reduce the effects of swelling in her brain, and her parents were told she was unlikely to make any meaningful functional recovery.

Against the odds, she improved. With physiotherapy and occupational therapy, she was soon able to walk with assistance and her speech returned almost to normal.

But two days before she was due to be transferred to a rehabilitation centre, Jane was left unattended on a bed while nursing staff were helping her wash. She fell from the bed and hit her head, which had been left vulnerable after the craniotomy.

After nine months of intensive rehabilitation, and despite some improvement, she requires, and will continue to require, 24-hour supervision and assistance. Her personality has changed.

The health trust admitted liability and a £3 million lump sum was agreed. It is estimated that over the course of her lifetime, Jane will receive approximately £12 million to pay for care and therapy.

Her solicitor, Jonathan Zimmern, says: ‘In this tragic case, basic error led to terrible injury to the patient.

‘Unfortunately, in too many cases involving nursing error, the breach of care clearly revolves around failure to follow the NHS’s own guidelines. These types of injuries would be entirely avoidable if staff ensured they followed their own guidelines.’

*Name has been changed

 

The importance of good record-keeping

Patient records will always come under close scrutiny when negligence is alleged, so attention to detail is important. Asking yourself, ‘What makes my care safe and how can I prove it was safe?’ is a good guiding principle, Roz Hooper says.

For example, it may not be enough for a community nurse to note the date and time of each visit to re-dress a patient’s diabetic ulcer if improvement or deterioration is not also recorded, possibly with photographic evidence.


Taking a photograph is an effective way of keeping a record. Picture: David Gee

Of course, good record-keeping is not solely for the nurse’s protection. Records can help show you delivered care safely but they also contribute to the overall quality of care, allowing others involved with treating the patient to note baselines, comparators, or deviations from the normal. 

13%

of all NHS clinical negligence claims relate to emergency medicine

Source: NHS Resolution

‘It may sound defensive and overly concerned about litigation but, as all nurses know, good observations well recorded are extraordinarily important in good care anyway,’ Ms Hooper says. ‘It’s a state of mind – imagine that someone else is going to look at those records.’

That said, mistakes do happen and clinical negligence claims may follow. And the staff shortages endemic in many workplaces mean that slip-up, oversights and errors could become more commonplace.

Nurses who make mistakes are not, by default, bad people or bad at their jobs. But sound, evidence-based practice, properly recorded, may lessen the risk of mistakes and of any subsequent complaint or claim.


Further information

NMC: your professional indemnity


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