Abstract
As with any other healthcare professional in today’s medicolegal climate, the Occupational Therapist is at a risk of litigious claims being made against them. Through a Freedom of Information request, litigation claims data between 2000 and 2020 against National Health Service Occupational Therapists in the United Kingdom were obtained from National Health Service (NHS) Resolution. We perform a descriptive analysis of the results and review the literature around litigation involving Occupational Therapists. 79 claims were registered over this period, of which 37 were settled with damages. The most common primary injury for successful claims was fracture. The most common primary causes for successful claims were equipment malfunction and lack of assistance/care. The total cost for successful claims was £1,655,771. These data demonstrate that Occupational Therapy is a trusted profession, with a low rate of claims. We frame these findings in context and discuss lessons behind the data.
Keywords
Introduction
Trust in healthcare professionals has been damaged by public scandals over years (Royal College of Occupational Therapists, 2020). Service user expectations are increasing, alongside a growing culture of litigation and defensive practice. The clinical litigation ‘crisis’ has been described as posing a threat to the sustainability of the National Health Service (NHS) (Wai Hung Yau, et al., 2020). As with any other healthcare professional, the Occupational Therapist (OT) is at risk of a claim being made against them, or incurring liability, if their service user comes to harm from negligence, omission or commission.
In the United Kingdom (UK), registration to the Health and Care Professions Council (HCPC) is a prerequisite for membership to the British Association of Occupational Therapists (BAOT). The HCPC generally provides all its members working as OTs in the NHS with indemnity cover. For an OT to receive cover in any event, the key test is that they should be operating within their ‘scope of practice’, as defined by the Royal College of Occupational Therapists (RCOT). When challenged, the OT concerned must show clinical reasoning that any activity they do is for the enhancement of patient health and well-being through their occupational performance and engagement. The exact title of the OT’s role is not relevant to deciding whether they are working within the scope of practice (British Association of Occupational Therapists, 2020). From 1 October 2020, OTs are indemnity covered for £10 million for any one claim per member, legal/defence costs and expenses. This insurance responds to claims first made or suit filed in Great Britain, Northern Ireland, Channel Islands, Isle of Man and the European Union (British Association of Occupational Therapists, 2020).
Previously, the NHS Litigation Authority (NHSLA) managed negligence and other claims against the NHS. In April 2017, the NHSLA was rebranded NHS Resolution, when it was also incorporated with the National Clinical Assessment Service and the Family Health Services Appeal Unit to assist the NHS to resolve litigation concerns fairly (National Health Executive, 2017). NHS Resolution aims to ‘…provide cost-effective conflict resolution services’, ‘...reduce litigation and increase the use of alternative dispute resolution’ ‘…reduce the unnecessary costs to claims and inform policy initiatives designed to achieve this outcome’ and ‘…extend the reach of Performance Practitioner Advice into organisation that are currently not using its services, particularly when there is a serious incident or safety concern’ (NHS Resolution, 2020a).
The recent HCPC Annual Fitness to Practice report (Health and Care Professions Council, 2019) saw a 5.3% increase in fitness to practice concerns received for all registrants, compared to the previous year. Of these, 47% were received by members of the public, compared to 42% in the previous year, supporting the narrative that public expectation and litigation are increasing. OTs accounted for 10.8% of the HCPC register for the year of 2018–2019 and yet were involved in 4.41% of total fitness to practice investigations (Health and Care Professions Council, 2019). This is somewhat reassuring, though it must be recognised that fitness to practice concerns do not necessarily cause litigation, but may be associated with it.
Historically, OT negligence claims are unusual, being virtually non-existent in the 1980s (Wright, 1985). To our knowledge, there has been paucity of this topic in the recent peer-reviewed literature.
This article discusses litigation in OT practice within the NHS in the United Kingdom. We use national public data to show the most common causes and injuries over the last 20 years. We finally discuss lessons that inform today’s practice, and the future, to improve care to our service users and reduce future litigation.
Literature review
The database search was conducted across databases: MEDLINE, Embase and CINAHL. The search terms were ‘OCCUPATIONAL THERAPY’ and its expansions, ‘OCCUPATIONAL THERAPY DEPARTMENT, HOSPITAL’ and its expansions, occupational ADJ ther*’ as a specific order proximity operator and with only titles and abstracts (search syntax ‘ti, ab’). Further search terms were ‘JURISPRUDENCE’ and its expansions. The PRISMA flow diagram tool was used to identify appropriate articles for this article (Moher, et al., 2009; The PRISMA Group, 2009).
The search terms produced 112 results, and the articles were hand searched by two authors (VSG and KW). Discrepancies for inclusion were discussed and resolved. One article was initially excluded as not in the English language. 59 articles were excluded as irrelevant to the subject, 17 were excluded as about OTs as expert witnesses, 4 were excluded as about how treatment outcomes are impacted by litigation, 15 were excluded as about service users already in the justice system, 8 were excluded as about litigation outside of the clinical system, and finally, 6 were excluded as non–peer-reviewed literature. Two articles were relevant and written in English.
PRISMA flow diagram
The grey literature was searched using the search ‘Occupational Therapy litigation’ in the Google search engine (https://www.google.co.uk) and targeted search through websites: https://www.hcpc-uk.org, https://www.rcot.co.uk and https://www.resolution.nhs.uk.
Ekelman Ranke and Moriarty (1997) published a review that explored the North American litigation system, with review of the literature. This addressed malpractice issues facing OTs and gives case examples from claims against OTs using data from American Occupational Therapy Association. They identified 76 claims filed against OTs between 1991 and 1994. The 5 most common categories representing 44 out of these were improper treatment (n = 11), falls (n = 9), burns from a hot pack (n = 9), sexual misconduct (n = 2) and unknown (n = 13). They suggested that certain areas or practice are at higher risk of incurring liability therapists who use physical agent modalities or therapeutic equipment, who treat service users with complicated conditions and pre-existing injuries or who provide functional mobility training. This is now a 23-year-old article, and litigation against OT has since, to our knowledge, not received similar attention at a population level.
Jarvis’ (1983) early article defined clinical negligence and the OTs’ professional standards of care. She discussed the legal aspects which lead to decisions of negligence. She gave several examples and advice around the subject, illustrated by case studies. It relates to this article as it is one of the few publications that explore the fundamental element for litigation decisions within OT practice at individual level.
Method
Under the UK Freedom of Information (Freedom of Information Act, 2000) request, data between the years 2000 and 2020 were provided by the NHS Resolution on all litigation claims within the NHS made because of input from an OT across all settings. The data were provided in the form of tables, where we have focused on highlighting the total number of litigation costs according to the nature, and the primary injury, of each claim.
Results
The Freedom of Information request was designated request number 4764. The data provided were correct as of 31 August 2020. The time period analysed was between financial years 2000/01 and 2019/20.
Number and cost of claims closed/settled with damages paid between financial years 2000/01 and 2019/20 relating to Occupational Therapy.
aNote: 5 cases of litigation are unaccounted for in these presented data; therefore, the true total should be 79 cases. NHS: National Health Service.
Analysis of primary injuries for successful claims closed/settled between financial years 2000/01 and 2019/20 relating to Occupational Therapy. Fields containing the # symbol contain data that are deliberately masked in adherence to Data Protection guidelines.
Note: NHS: National Health Service.
In the 37 cases where ‘no damages paid’ were issued, NHS legal expenses amounted to £46,327 and Claimant legal costs £350 (Table 1). This represents a mean average of £1252 spent per case, where no damages were paid.
Within the 37 successful claims that paid out in damages, there were a variety of primary injuries (Table 2). The two most common were fracture (n = 10, representing 27.0% of successful claims) and unnecessary pain (n = 8, representing 21.6% of successful claims). Other primary injuries for which there were five or less incidents are masked according to Data Protection guidelines. These masked data fields have been labelled as ‘#’ in Table 2.
Fracture was the costliest primary injury with £219,694 in damages paid, £55,688 in NHS legal costs and £108,328 in claimant legal costs, totalling £383,710. Unnecessary pain had £138,195 in damages paid, £37,954 in NHS legal costs and £149,785 in claimant legal costs. These two listed primary injuries totalled £709,644, which accounted for 43% of the total litigation cost of £1,655,771 for successful claims.
Analysis of primary causes for successful claims closed/settled between financial years 2000/01 and 2019/20 relating to Occupational Therapy. Fields containing the # symbol contain data that are deliberately masked, in adherence to Data Protection guidelines.
Note: NHS: National Health Service.
Equipment malfunction accounted £75,542 paid in damages, £50,173 in NHS legal costs and £65,100 in claimant legal costs. Lack of assistance/care costs £107,750 paid in damages, £13,802 in NHS legal costs and £181,707 in claimant legal costs. These two primary causes totalled £372,521, which accounted for 22% of the total litigation cost leading to successful litigation claims. Other primary causes for which there were five or less claims were masked according to Data Protection guidelines. These masked data fields have been labelled as ‘#’ in Table 3.
Discussion
As of November 2020, there are 41,230 OTs registered with the HCPC (Health & Care Professions Council, 2020) in the United Kingdom, representing a large number of daily encounters with service users. Whilst there has been an increase in the number of OT registrants over the years, the data presented here demonstrate that OT is currently a profession that is at low risk for litigation, with just 79 cases over the last 20 years. Put into context, NHS Resolution received 11,682 new clinical negligence claims and incidents, an increase of 998 (9.35%) in 2019/20 compared to 2018/19 (NHS Resolution, 2020b). We have not found national-level public data from other countries, for comparison with the UK data presented here.
In the data presented here, approximately half of the litigation cases resulted in damages paid, with the other half not paying damages, and only cost being the NHS legal fees with the mean average of £1252 per claim. The 20-year total of £1.7 million for OT-related claims contrasts sharply with the £8.3 billion paid by NHS Resolution for the Clinical Negligence Scheme for Trusts (which indemnifies its members for clinical negligence claims), for the 2019/2020 year alone (NHS Resolution, 2020b). These comparisons also demonstrate that OT takes a small fraction of the NHS Resolution indemnity burden.
A North American professional liability insurance provider (CNA) published a 2017 report reviewing all litigation claims in a 10-year period between 2006 and 2016. They found that fracture was the most common injury for litigation against OTs (CNA HPSO, 2017). This accounted for 46% of closed claims, compared to NHS Resolution data where fractures accounted for 27% of all successful claims. In the United Kingdom, the mean average cost per fracture claim is £38,371, compared to the report which was average paid indemnity US$46,508 and average paid expense US$13,802. UK data show that at 16.2% of all successful claims, equipment malfunction is the most common primary cause for a successful claim. In the CNA report, equipment malfunction was the sixth most common cause for successful claim, representing 9% of their successful litigation claims. We note that these comparisons are between national-level public data from NHS Resolution and data published in a report by a single professional liability insurance provider of 22,000 policies for OT practitioners in North America.
Reviewing the rest of primary injuries listed in Table 2, we note that there are rare (i.e. less than five occurrences each) claims that have led to catastrophic primary injuries, including fatality. Each individual case would carry their own complexities; it is therefore unlikely that useful insights would be gained by speculating each case’s nature. Rare incidents do happen and can lead to disastrous consequences. Without excessive fear of litigation or reprisal, OTs have the opportunity to lead in openness and candour during error and adverse events. We would advocate continued vigilance in OT practice at all levels. The RCOT OT Standards and Codes of Ethics (Royal College of Occupational Therapy, 2015) outlines the expectations placed upon students at entry-level education competencies and qualified OTs as part of continuing professional development.
Reviewing the rest of Table 3, it might be helpful to consider that many primary causes can be placed under two broad categories. They may involve individual errors (operator error, lack of assistance/care, failure to recognise complication, failure/delay to diagnosis, failure to supervise and failure/delay to treatment), which are human-related factors. Alternatively, they may arise from system errors, which are related to patient safety systems and risk assessments (inappropriate treatment, lack of facilities/equipment, inadequate nursing care and problems with medical records). In the complex healthcare systems that OTs work in, there will be multifactorial contributions throughout the spectrum between individual and system errors. At a national level, it is essential that the NHS continues to work towards higher quality care through root cause analyses and using these two helpful paradigms.
At a local level, it is important that OTs learn from not only failures, but successes. There is a movement towards learning from what is done well in high-performance systems (Wai Hung Yau, et al., 2020). We suggest that OTs foster a stronger culture of sharing lessons, initiatives or innovations, and for current systems to be more adaptable to positive change. The data presented here highlight the importance that these successes are shared widely, as litigation in OT is infrequent; therefore, there is the possibility that they may not receive the emphasis they deserve.
For further understanding into the legal aspects of the most common primary injuries and primary causes we have discussed, we recommend the comprehensive two-part article by Mandelstam (2001a) regarding safe use of equipment and manual handling (Mandelstam, 2001b; safe use of disability equipment and manual handling: legal aspects – part 2, manual handling). We also suggest the CNA report for detailed risk control recommendations and practice/claim response tips (CNA HPSO, 2017).
Due to small numbers, the data presented here cannot be used to demonstrate any significant trend for claim incidence with time. Currently in the NHS, there is a suggested move away from tort litigation (i.e. under common law jurisdiction, with liability applied by courts), towards no-blame compensation schemes (Birks et al., 2018). This can theoretically be a quicker and fairer way to redress claims compared to damages awarded through out of court settlements or through courts. We anticipate that this would have an impact on number of claims in the years to come.
Limitations
There are several limitations to this review: When interpreting results as presented by the FOI response, it is important to consider that the data obtained are from a service tool, not a research tool. This may affect the accuracy and precision of categorisation for injuries and causes. There is no contextual information about claims individually or collectively. This means that unusual causes of OT litigation, such as ‘intraoperative problems’ or causes of injury such as ‘tuberculosis’, may be inaccurate or have unusual circumstances behind the claim. This also means a substantial amount of granularity is lost as a claim is distilled to one primary injury or cause. Where masked data has been provided in Tables 2 and 3, the number of claims is assumed to be 1 to 5 claims and not 0. It must be recognised that numbers of 1 to 5 claims within small denominators can represent a large variation. It can take years to resolve a professional liability claim; therefore, these data may not include all those cases that have been raised in recent years. The private sector/non-NHS litigation data is excluded from the scope of this article. This excludes a potentially larger dataset of litigation claims and would be a worthwhile dataset to explore in comparison to the NHS OTs. In our discussion, we have used an illustrative example comparing our findings from NHS Resolution with those from a North American private enterprise, for OTs under a different indemnity system than that used in the United Kingdom. Generally, damages awarded to successful claimants are awarded as a lump sum payment. However, in more serious injuries, for example, where lifetime income loss or ongoing medical costs is anticipated, the Court Order may award damages to be paid in regular recurring payments, known as periodical payments (PPOs). These can be compensated to the injured person for the rest of their life. The data we have presented do not distinguish between lump sums and PPOs. Future data on damages awarded via PPOs would need to consider factors such as the increasing retirement age and income loss calculated against the Annual Survey for Hours and Earnings data compiled by the UK Office of National Statistics.
Conclusions
This article presents a descriptive analysis of the last 20 years of NHS Resolution litigation data in OT practice. Occupational Therapy remains a trusted profession with only 79 litigation claims made in this time. The commonest primary injuries for claims resulting in damages paid are fracture and unnecessary pain. The commonest causes for damages paid are equipment malfunction and lack of assistance/care. Together, these highlight the importance of continued vigilance from OTs providing therapy to service users. Through this article, we hope to stimulate the important discussion of quality and safety of clinical practice within the Occupational Therapy profession.
Key findings
OT is a trusted profession with low litigation claims. Fracture/unnecessary pain is the commonest primary injury, and equipment malfunction/lack of assistance/care is the commonest primary cause for successful claims.
What this study has added
This article has reviewed the nature of OT litigation claims in the NHS over the past 20 years, showing that litigation claims against OTs are relatively low.
Footnotes
Acknowledgements
We would like to thank Karen Vaughan, Senior Occupational Therapist at the Royal National Orthopaedic Hospital, Stanmore, UK, for her review of the manuscript and helpful suggestions. We would like to acknowledge the Evidence Search: Occupational Therapy and Litigation and John Losasso (17 December 2020), NORWICH, UK: Norfolk and Norwich University Hospital Library and Knowledge Service.
Declaration of Conflicting Interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) received no financial support for the research, authorship, and/or publication of this article.
Statement of contributorship
VSG and KW sourced the data, researched literature and conceived the study. VSG and KW took the lead in writing the manuscript. SH completed the foundation, literature search and creation of the PRISMA flow chart. PF and RW reviewed and edited the manuscript. All authors discussed the results and approved the final manuscript.
Research ethics
Ethics approval was not required for this study.
