The national medical charity AvMA (Action against Medical Accidents) is launching a project to provide help with inquests for bereaved families who believe their loved one has died as a result of a medical mistake.
The inquest project, to be launched next month, will provide access to specialist advice to help redress the inequality of arms between NHS trusts and families trying to find out what went wrong.
Leaflets to be available through coroners’ offices and NHS trusts will explain the scheme, which aims to help bereaved relatives obtain a full investigation. Lawyers will provide pro bono representation at inquests for some families, backed up by AvMA caseworkers.
Peter Walsh, AvMA’s chief executive, who outlined the project at a symposium held by law firm Leigh Day & Co in central London on 22 June, said the National Audit Office had estimated that there were more than 30 000 avoidable deaths a year in hospitals in England.
He drew attention to the option for coroners, since 2008, to send Rule 43 reports to organisations suggesting action to be taken to ensure lessons are learned. The organisation is required to reply saying what action it proposes to take.
The ministry of justice publishes six-monthly summaries of reports sent under the rule. In both summaries published so far, hospital deaths were the largest group of fatalities.
AvMA, which helps around 4000 people a year, advised the family of David Gray, who was killed by an overdose of diamorphine given by Daniel Ubani, a locum doctor from Germany. The charity also campaigned for a full public inquiry into excess deaths at Mid-Staffordshire NHS Foundation Trust, which was announced this month by the new coalition government (BMJ 10 June 2010;340:c3117, doi:10.1136/bmj.c3117).
Russell Levy, head of Leigh Day’s clinical negligence department, said the current adversarial system for dealing with negligence claims, with the claimant bearing the burden of proof, provided “a perverse incentive for defendants to sit back and not to cooperate, not to assist in actively seeking out the truth.”
He gave as an example a case where a wife whose husband had died during surgery consulted him. “She knows absolutely nothing other than that the husband and father went in for a relatively routine operation and died,” he said.
“A number of other people were there at the time. They have a pretty good idea what happened. They also have specialist expertise and the ability to interpret the knowledge they’ve got. They are also part of an institution which has great financial resources. “
But the wife is not entitled to get witness statements from people who were in theatre at the time. Medical records might or might not explain what happened. She and her lawyers have to try to work out what happened, then come back to the hospital and say “we think we’ve worked this out.”
He added, “In many cases they know exactly what happened and the claimant may have got it completely wrong. Do they tell you? No, of course they don’t.”
Equally disturbing, he said, were the cases where the trust admits liability but “you don’t know why they’re admitting liability.”
What was needed was a completely new system which provided rigorous investigation of potentially avoidable deaths to identify shortcomings, prevent future similar deaths, and provide for redress and compensation.
He suggested a “hybrid system which is essentially inquisitorial but with the parties having a guaranteed right to proper and full representation.”
Cite this as: BMJ 2010;340:c3425