The Lawyer Monthly Expert Witness Awards 2021

LAWYER MONTHLY EXPERT WITNESS AWARDS 2021 UNITED KINGDOM - 17 - www.lawyer-monthly.com Regrettably, the advances in care promoted by the National Institute of Clinical Excellence (NICE) are becoming a “rule book”. Fifteen years ago, it was unusual for diabetic patients to claim breach of duty when they suffered amputation of a toe, foot or even leg. As NICE guidelines state that any new ulcer requires immediate referral to a multidisciplinary diabetic foot clinic, there are now multiple claims based on breaching these guidelines. There is little recognition that poorly controlled Type I diabetes, particularly in heavy smoking patients, carries a high risk of major limb amputation in the third and fourth decades of life. The experience of vascular surgeons is that referral to a vascular unit indicates vascular problems and a deteriorating prognosis. Diabetic specialists have a more optimistic view on prognosis for diabetic foot ulceration based on their practice in patients without diabetic vascular problems. Forefoot or major limb amputation is the most rapidly growing sector in my clinical negligence practice: It represented 14% of my last 100 clinical negligence cases and may well rise to 20% in the next decade. I have also become aware that there are a small number of NHS and Independent Sector hospitals in the UK which account for a disproportionate number of instructions that we receive. There are possibly a number of cultural and organisational reasons why certain hospitals underperform and become the defendants in massively more claims than other hospitals. I suspect that NHS Resolution of the Department of Health should look at this more closely to try and identify what it is about these hospitals that resulted in repeated and often successful claims made against them. I have not analysed this, but I would not be surprised if 10-15% of my medicolegal work was addressing claims against only 3-4 of the many hospitals in the UK. You said that DVT and PE are the most common conditions leading to litigation in the UK, is this also changing? In the past, the vast majority of my personal injury instructions as a vascular expert have related to DVT or PE caused by injury in the workplace or in road traffic accidents. However, in recent years I have received a number of instructions where employees have suffered DVT or PE as a consequence of frequent or long-haul flights during the course of their employment. There has been a consistent increase in the number of clinical negligence claims caused by failures to prevent DVT or PE. This almost certainly follows the several excellent NICE guidelines published in the last 15 years on the prevention and treatment of venous thromboembolism (VTE which encompasses both DVT and PE). Orthopaedic surgeons in particular resist the need to prescribe prophylactic anticoagulants to prevent DVT and PE even though PE is the single most frequent cause of death in young adults undergoing surgery. Although I think lifelong disabilities associated with DVT and avoidable death in young adults suffering PE may still marginally lead to more instructions than any other condition, failures of diagnosis or delays in the treatment of severe limb ischaemia is now far more common than previously. I think this is due to the increasing bureaucracy in our NHS and to the huge increase in the number of consultants such that each consultant has less experience than previously. Again, I have experienced a disproportionate number of these claims from a small number of specialist units even though these may be in teaching hospital vascular centres that have excellent reputations. I do not think NHS Resolution, the Department of Health or NHS England use the data available to them from NHS Resolution to identify and improve underperforming hospitals and specialist services. I have come to realise that although I ask all our experts to protect our NHS from unwarranted litigation, it is becoming increasingly clear that litigation identifies problems in our NHS that need to be addressed. If the NHS use this information more effectively, standards of clinical care would undoubtably improve. “ I have come to realise that although I ask all our experts to protect our NHS from unwarranted litigation, it is becoming increasingly clear that litigation identifies problems in our NHS that need to be addressed. McCollum Consultants is the UK’s leading chambers of expert witnesses. www.McCollumConsultants.com