Surgeon at work in the operating room.

Litigation and Patient Safety: The Importance of Good Communication Strategies

By John Tingle

Good record keeping and communication practices are essential prerequisites for safe and proper patient care. Serious patient injury, including death, can result from poor record keeping and other communication failures.

A fundamental issue in England’s National Health Service (NHS) patient safety culture development, however, is whether health care staff implement the necessary communication changes in light of  adverse health care events. In fact, failure to learn from errors is a persistent patient safety theme that has featured strongly in various health regulatory, patient safety, and crisis inquiry reports going back over 20 years.

The problem of poor lesson learning from health care provider error in the NHS was highlighted as early as the year 2000 in the seminal patient safety publication, An Organisation with a Memory.

The report states:

“Most distressing of all, such failures often have a familiar ring, displaying strong similarities to incidents which have occurred before and, in some cases, almost exactly replicating them. Many could be avoided if only the lessons of experience were properly learned.”

Communication Errors and Never Events

Communication errors underpin many Never Events, where, for example, the wrong patient is operated on, or there is surgery to the wrong limb. In the NHS between April 1, 2022 – July 31, 2022 there were 134 serious incidents that appeared to meet the definition of a Never Event given in the NHS list. In the section of the report on wrong site surgery, there were 57 Never Events recorded, including:

“-Incision to wrist rather than finger (1)

-Incision to wrong side of groin (1)

-Injection to wrong breast (1)

-Injection to wrong eye (2)

-Injection to wrong finger (2)

-Injection to wrong hip (1)

-Knee injection intended for another patient (2)

-Lumbar puncture intended for another patient (2)

-Procedure not required as already carried out (1)

Removal of both ovaries when surgical plan was to remove one of them (1)

-Removal of ovaries when surgical plan was to conserve them (1)”

These Never Events are profound examples of failures in the communication process and are unforgivable by any measure of the word. Health care givers can learn from reports of Never Events and closed claims analysis. These reports can reveal important trends, as well as improvement strategies.

A Stubborn Problem

Unfortunately, the reports into Never Events, closed legal claims, and other patient safety events do not seem to be enough to change practices. Never Events remain a stubborn and persistent problem in the NHS. The Care Quality Commission (CQC), Chief Inspector of Hospitals stated:

“Despite this preventability, the number of Never Events has not fallen. About 500 times each year we are not preventing the preventable. That means that around 500 patients are suffering unnecessary harm. This failure to reduce the number of Never Events is sending us an important message.”

NHS Resolution is a special NHS Health Authority that manages litigation claims made against NHS hospitals and other types of health organizations, among several other functions. They regularly publish excellent reports on patient safety and litigation themes from past legal claims. They recently have published three reports on clinical negligence claims in Emergency Departments in England. Report 1 is on high value and fatality related claims. Report 2 is on missed fractures. Report 3 covers hospital acquired pressure ulcers and falls. The reports have sections giving the number of claims, their cost, emerging themes, and recommendations. Key conclusions across all three reports are stated in Table 1 and include:

“ – Diagnostic errors including missing signs of deterioration, particularly for spinal and cerebral injury

 – Failures in the investigation process leading to missed or delayed diagnosis.

 – Communication issues impacting the escalation and handover of care and cross specialty team working” 


Improvements in communication processes, documentation, and record keeping can improve patient care and reduce the incidence of malpractice litigation and patient complaints. We can see this correlation from the reports discussed above. Basic steps can be taken to achieve these improvements. In discussing strategies to reduce the incidence of medical malpractice litigation and to improve patient care it is a useful to go back to basics. The reports discussed here are all excellent in identifying themes in errors, complaints, and litigation, as well as in identifying strategies to improve care. These reports can form useful patient safety education and training tools.

The fundamental question is whether these reports will be sufficient to change health care practices and whether their lessons will be followed by health care providers.

Unfortunately, when these reports and others are analyzed, they often show recurring patterns of the same types of errors being made — as demonstrated by the latest reports on NHS Never Events. We have the information out there on how to improve care and to avoid litigation and complaints, but we need to do more to achieve this.

John Tingle

John Tingle is a regular contributor to the Bill of Health blog. I am a Lecturer in Law, Birmingham Law School, University of Birmingham, UK; and a Visiting Professor of Law, Loyola University Chicago, School of Law. I was a Visiting Scholar at Harvard Law School in November 2018 and formerly Associate Professor at Nottingham Law School, Nottingham Trent University in the UK. I have a fortnightly magazine column in the British Journal of Nursing where I focus on patient safety and the legal aspects of nursing and medicine. I have published over 500 articles and a number of leading texts in patient safety and nursing law. My current research interests are in global patient safety, policy and practice, particularly in African health care systems. My most recent publication is: "Global Patient-Safety Law Policy and Practice," edited by John Tingle, Clayton O'Neill, and Morgan Shimwell, Routledge 2018.

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