Doctor, there's a fly in my soup!

Michael Taylor, Solicitor, Clinical Negligence

The National Health Service is, as the name suggests, a part of the service industry. Whilst service is important in all industries, it is particularly important in the NHS, where the service is often provided when we, or our closest family members, are at our most vulnerable. This is as opposed to, for example - a poor dining experience, where issues relating to life and death do not enter the equation.

The nature of our experience with the health service therefore can often increase the stress and anxiety related to the outcome of that experience. However, poor service does not automatically equate to negligent care as illustrated in the following scenarios:

Scenario 1 – The Dining Experience
Your friend has recommended a restaurant and so you decide to give it a try. Unfortunately, you are greeted at the door with a sneer and made to feel like they are doing you a favour by even acknowledging you. The waiting staff continue to be rude and inattentive and when the food eventually arrives it is cold and unappetising. To top it all off, it takes an age to pay for the privilege of the experience!

Scenario 2 – The Hospital Experience
You suffer an injury and when the ambulance eventually arrives you are taken to the closest hospital. Upon arrival, a nurse experiences problems in taking a blood sample and jokes that it is your arm and veins at fault for the difficulty. Unfortunately, the attempt to alleviate a difficult moment is lost on you due to the stress of the situation and you do not see the funny side.

Your family arrives after you have been taken to a ward; they know you have been taken to hospital via ambulance but don’t know why. When they are able to locate a doctor, they are very junior and initially confuse you for another patient before providing scant details on your condition and proposed treatment. They cannot tell your family when they will be able to see you and refer you to the ward nurses, who you have not been introduced to, to find out.

Both scenarios provide fictitious examples of poor service, although in the case of the restaurant at least you can decide not to return. Unfortunately, it may be that, in future, you have no choice but to return to the same hospital where you had a poor experience. But where is the line drawn between poor service and negligence in a clinical setting?

The first place to start is the general legal test for clinical negligence, which is set out below in brief: -

1. A duty of care must exist (in most situations this is automatically established as between patient and clinician)
2. There is a breach of this duty of care (based on whether the care provided would be deemed unreasonable by a responsible body of medical opinion)
3. The breach of duty has caused harm (in terms of quantifiable physical injury or a recognised mental health disorder)

Applying the test for negligence to scenario 2 above, can it be said that the actions taken by the clinicians were negligent? Unfortunately, poor bedside manner is not negligent treatment, but it does often frame the way we view the whole hospital experience – if the clinicians cannot recall which patient is my dad, are they really going to be able to fix his broken hip?

This is a valid question, but also an emotional one that can lead to a confusion between a failure in service and a failure in care that amounts to negligence. Often, service issues are immediate and can lead to the exacerbation of a situation – poor communication from nursing staff, poor bedside manner from the treating clinician resulting in anything less than a perfect outcome from treatment can lead to immediate thoughts of negligence. Instead, the frustration that you have, and issues faced are often as a result of a failure in communication – not being kept fully informed regarding the treatment and care provided. So, what can be done about poor service whilst it is occurring?

The first step would be to raise your concerns with the clinicians involved. No one will know that you are having a problem if you do not bring it to their attention. It will be helpful for the hospital staff investigating your complaints if you focus on: -
(a) What is it that you want to achieve?
(b) Who do you need to speak to in order to achieve it?

Find out who is manager of the ward (the internet is often useful in this regard) and ask to speak with them. If you cannot get hold of them, utilise the Patient Advice and Liaison Service (PALS) at that trust or hospital who can assist you in raising your concerns. The PALS team often have an office at each hospital and contact details should also be easily found on each hospital trust’s website.

It is important, if you feel that you or a family member are having a poor patient experience in hospital, to raise issues at an early stage in an attempt to improve communication between parties. Hopefully this results in everybody involved then working in the same direction to achieve a positive outcome in terms of experience.

However, if you have exhausted the complaint’s process or feel that there has been a breach of duty, we are here to help and assist you with any potential claim you may have. If you are concerned that you or a loved one may have suffered an injury because of medical negligence, please do not hesitate to get in touch.