Solicitors predict increase in clinical negligence claims as NHS outsources hip replacement surgery

Clinical negligence solicitors are seeing a significant increase in enquiries and claims arising from badly performed surgery for hip and knee replacements according to London and South East law firm Penningtons Solicitors LLP. This is set to continue as the NHS outsources hip and knee replacement surgery to private treatment centres to cut waiting lists.

Philippa Luscombe, one of the partners in Penningtons' nationally recognised clinical negligence team, has been examining a study by surgeons in Cardiff, published in The Journal of Bone and Joint Surgery, and reports in The Times newspaper on Tuesday 22 September that the NHS is paying a high price for the costs of outsourcing hip replacements. The outsourcing programme increases by up to 20 times the risk that the quality of surgery will be so poor that the NHS will end up having to re-perform or correct the surgery at a later date. However, according to Philippa, the increased costs do not end there.

Philippa comments: "The inevitable consequence of falling behind technological advances and of churning operations without properly understanding an individual patient's requirements is that the quality of surgery falls. Certain techniques that would have been regarded as acceptable to fit prosthetic joints even only five years ago have now become so outdated that it would be negligent to perform them today.

"That negligence brings its own costs, far greater than those of simply correcting badly performed surgery. The patient may seek compensation for the consequences of the poorly performed operation and the costs to the NHS potentially dwarf those of repeating or correcting the original surgery.

"Where the surgery is re-performed or has to be corrected, the patient is entitled to be compensated for having to undergo surgery a second time, with all the associated risks. Their recovery time will be longer than it should have been, again giving grounds for compensation, which will possibly also extend to earnings that may have been lost through the patient's absence from their work. There is a longer period in which family and friends – or even private carers – may be needed to provide care and assistance whilst the patient recuperates and the patient is entitled to claim for that time."

If the problems that arise following the badly performed surgery cannot be corrected, the damages that can be claimed are far greater. Philippa continues: "The patient will want to be compensated for the fact that he or she may be left with long-term disability and all the losses flowing from that, which can be sizeable, for example, if they cannot return to their previous job. Add to that the legal costs the NHS bears whenever a patient succeeds in a claim for compensation and the overall bill is far higher than if the surgery had been properly resourced in the first place.

"The objective of reducing waiting lists is laudable, but resources must surely be better spent equipping the NHS with properly trained specialists who are provided with access to the latest techniques and technology in rapidly changing disciplines. Only then will costs properly focus on patient care and be diverted away from the avoidable expenses of remedial surgery and compensation."