doctor holding clipboard.

Change for the Medical Malpractice Compensation System in England?

By John Tingle

It is fair to say that the British public are generally speaking very proud of our National Health Service  in England, and treasure it greatly. The NHS Constitution sets out the seven key principles which guide the NHS in all its activities, and these include:

  1. The NHS provides a comprehensive service, available to all.
  2. Access to NHS services is based on clinical need, not an individual’s ability to pay. NHS services are free of charge, except in limited circumstances sanctioned by Parliament.

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Physical therapist helps person in wheelchair.

Balancing Patient Rights and Costs in Medical Malpractice Claims

By John Tingle and Amanda Cattini

The issue of the high and increasing costs of clinical negligence (medical malpractice) in the National Health Service (NHS) in England has long been a contentious one. There are common themes in the debate. The economic arguments supporting reform explain that the NHS is spending a considerable amount of money out of its health budget on malpractice claims, which otherwise could be put into front line health care services.  While the economic arguments are important, others contend that the patient’s voice must be heard more widely in the reform debate. They emphasize that it is important to look deeper as to what compensation means to victims of clinical negligence, and caution against unnecessarily fettering patients’ reasonable pursuit of claims.

Two recently published reports provide several key perspectives on these issues.

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Doctor in white coat neck down

Buzzwords in Patient Safety: Some Preliminary Thoughts

By John Tingle and Amanda Cattini

Every profession, service, or industry maintains what can be termed, “buzzwords.” A “buzzword” can be defined as transient, flavor-of-the-month-type word, which describes a concept than can be seen to direct policy and practice until it becomes less topical and eventually fades away from general use. These terms come and go and are often refined and come back into use. In the National Health Service (NHS) in England, we have seen such pervading terms as clinical governance, patient empowerment, controls assurance, and patient advocacy.

Today there is what can arguably be called a new buzzword, “decolonization.” This word seems very much to be the term of the day. It pervades vast areas of academic and professional life and discourse. In terms of health law and patient safety research, the decolonization of national and global patient safety systems and structures seems an interesting perspective to further peruse.

One benefit of adopting decolonization perspectives to patient safety is that we can utilize the concept as a disrupter of established thinking and seek to establish new foundations of knowledge.

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3d rendering of a robot working with virtual display.

Artificial Intelligence and Health Law: Updates from England

By John Tingle

Artificial intelligence (AI) is making an impact on health law in England.

The growing presence of AI in law has been chronicled by organizations such as the Law Society, which published a forward-thinking, horizon-scanning paper on artificial intelligence and the legal profession back in 2018.

The report identifies several key emerging strands of AI development and use, including Q&A chatbots, document analysis, document delivery, legal adviser support, case outcome prediction, and clinical negligence analysis. These applications of AI already show promise: one algorithm developed by researchers at University College London, the University of Sheffield, and the University of Pennsylvania was able to predict case outcomes with 79% accuracy.

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doctor holding clipboard.

The Latest on Never Events in the NHS in England

By John Tingle

Never Events” — medical errors that should never occur — are a major and recurring problem in health care in England.

When they do occur, they sap confidence and trust in the health care system, and can result in significant injury or death to the patient. They can result in expensive litigation. There is also a significant financial cost to the NHS, which is always short of financial resources. The patient, their relatives, and all those involved in the incident bear emotional costs, too.

In the National Health Service (NHS), Never Events are defined and listed. The list includes such incidents as a foreign body being left in a patient, wrong implant/prosthesis, and wrong site surgery, among others. Sadly, the incidence of Never Events in the NHS is still too high.

Never Events are also a major patient safety metric that helps regulators such as the Care Quality Commission (CQC) and the public judge the safety of a hospital or other health care facility.

Recent publications highlight that Never Events remain a critical and a stubbornly persistent problem for the NHS to address.

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NHS building

When Will the NHS Get Its Complaints System Right?

By John Tingle

The National Health Service (NHS) in England has been trying to get an effective, fit-for-purpose complaints system for at least 28 years, and it has still not succeeded.

This has been one of the NHS’s perpetual and intractable problems. History has not served the NHS well here, despite the publication of countless reports on patient safety and NHS complaint handling, and several major crises happening, such as Mid Staffordshire.

More often than not, the reports into patient safety crises and NHS complaints system reform all say the same (or similar) thing, and point to the same issues.

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Busy Nurse's Station In Modern Hospital

What’s in a Name? The Value of the Term ‘Never Events’

By John Tingle 

The Healthcare Safety Inspection Branch (HSIB) in England, which conducts independent investigations of patient safety concerns relating to the country’s National Health Service (NHS), has just published a learning report that examines the findings of investigations they have carried out on incidents classified as “Never Events.”

England’s NHS defines Never Events as “patient safety incidents that are wholly preventable,” in accordance with the implementation of “guidance or safety recommendations that provide strong systemic protective barriers.”

In the National Health Service’s policy and framework, Never Events are listed under the following headings: surgical, medication, mental health, and general. These headings include incidents such as overdose of certain medications, failure to remove a foreign object used during a procedure, and transfusion of incompatible blood.

The investigations for the HSIB report cover seven of the 15 types of Never Events listed in the National Health Service (NHS) Never Events policy and framework published in 2018. These seven categories account for over 96% of the total Never Events recorded in 2018 – 2019.

Controversially, the HSIB report recommends that NHS England and NHS Improvement revise the Never Events list to remove several which don’t have “strong and systemic safety barriers.” “These events,” the report states, “are therefore not wholly preventable and do not fit the current definition of Never Events.”

This suggestion is, arguably, not in the spirit of advancing the patient safety agenda in the NHS in England.

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USB drive

The False Dilemmas of the Fifth Circuit’s HIPAA Ruling

By Leslie Francis

In a caustic opinion issued on January 14, the Fifth Circuit vacated penalties assessed by the U.S. Department of Health and Human Services (HHS) against the University of Texas M.D. Anderson Cancer Center for HIPAA security breaches.

As has happened to many other health care entities, M.D. Anderson had employees who were not careful with their laptops and thumb drives (and the data therein). A laptop with the unencrypted protected health care information of nearly 30,000 patients was stolen. Unencrypted thumb drives with information on another almost 6,000 patients were lost. M.D. Anderson disclosed the security breaches to HHS, which assessed civil monetary penalties for violation of HIPAA’s encryption and disclosure rules. M.D. Anderson then filed a petition for review, which resulted in the Fifth Circuit holding that the agency action was arbitrary and capricious for failure to consider an important aspect of the problem.

Commentators have already pointed out that this decision will reverberate throughout the HIPAA enforcement world. As it does, I hope it is met with scorn, for it trades on the informal logical fallacy of the false dilemma in two noteworthy ways.

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