Back injury is now the number one occupational health hazard in nursing. The Royal College of Nursing (RCN) currently has around 700 claims in the pipeline.
While claims used to be largely confined to nurses handling patients in hospitals, recent changes have increased care in the community. This has led to a wider range of people being employed by NHS Trusts and Social Services Departments and many staff providing care in the community have only the most rudimentary training and no equipment.
The result, says Danielle Holmes, a leading expert witness in the field, is a significant expansion in the litigation involving those suffering from work-related back injury in the care sectors. She adds that another reason for the growth of litigation is that those taking action against their employers are traditionally able to link their injury to a single event. However, claims are now being processed on the basis of cumulative damage, which leaves claimants without a specific event to point to.
Holmes, who has provided evidence in report form and from the witness box on behalf of both claimants and health authorities, is a founder of London-based DRH Associates which runs training schools on patient handling techniques for nurses. She is also one of the authors of the next edition of The Guide to the Handling of Patients – the nursing profession's bible on lifting techniques.
She lists a number of improvements she would like to see made in the expert witness system. Firstly, she believes defence cases are often hampered by poor record-keeping. Employers often have no effective records of the training given to claimants. It is, she says, not sufficient for an employer to say that a training course was provided. “It is essential to be able to show what was taught and what the plaintiff ought to have known,” she says.
Making the case for the plaintiff brings its own problems. “The nurse or carer often does not realise he or she will need to sue until some time after the event. Many cases are only started close to the limitation date,” she says. “Memories are weakened and it is hard to get the story right the first time. Solicitors faced by limitation put in protective statements of claim and assert a range of faults. It is often necessary to withdraw some of the faults claimed. This can be embarrassing if it occurs near to the court date.”
She says one useful point to bear in mind when dealing with these claims is that it is no good to bolster a statement of claim by alleging there were insufficient staff. “Using more nurses to carry out a lift is almost never appropriate,” she adds.
One of the practicalities of the work of experts that causes Holmes problems is the state of the documentation she needs to plough through when a case reaches discovery. “It is essential to see the notices of a patient who was being lifted. It is bad enough having to do battle with nurses' and doctors' appalling hand writing. But why is the date always cut off on nursing records? My plea to all solicitors, but defence solicitors in particular, is please check the quality of photocopying.”
Another bane of Holmes's life and that of her fellow experts is the problem of booking court dates. She says that everyone wants to know when she is available and she has learned the hard way that she must book well ahead. She stresses that lawyers' last-minute negotiations, which sometimes settle cases, make life difficult for experts in all fields, who have to plan their availability.
Out of the last hundred or so days she has been booked for court appearances she has actually been to court on just 11. “It is only with the proximity of the court case that many solicitors get down to serious negotiation. If only solicitors could do their negotiating before booking court dates there would be far fewer people trying to find dates and it would be much easier to arrange court appearances with experts where they are really needed,” she says.
When it comes to preparation of cases she calls for better contact between experts and counsel. “There must be time to explain the issues involved to counsel before they go into court. Without a full briefing from an expert, important issues can be missed in the cross-examination.”
Holmes says claims are now being made by growing number of injured patients. “I have one case at the moment involving a patient who is suing over a bed sore suffered as a result of bad handling,” she says.