Family sues out-of-hours GP provider and nurse over death liability

The family of a young woman is suing the country's biggest out-of-hours GP provider and one of its nurses, whose failures meant her fatal condition was not diagnosed, because neither will accept liability in a test case over legal responsibility in a privatised NHS.

Clare Secker, 19, died of bronchopneumonia in December 2008 after a nurse working for the privately-run telephone service told her parents to give her paracetamol and fluids.

Earlier this year the nurse admitted through her lawyers that she had been "in breach of her duty by failing to arrange for [Secker] to be seen by a doctor". If the young mother, who died when her son Tyler was less than a year old, had been prescribed antibiotics she would have recovered fully.

Despite this neither the firm, which was part of the Harmoni out-of-hours service until it was bought by Care UK in November 2012, nor the nurse has offered compensation to the family.

The nurse claims she does not need to pay out as her employment contract specifically states that the company had insurance in place "to indemnify … for any claim arising from any wrongful act committed by … any employee while carrying out their contractual obligations". But Harmoni says its insurance excludes responsibility for negligence by nurses.

With the Health and Social Care Act 2012 leading to more NHS contracts going to private providers, lawyers are concerned that the fragmented system will lead to a loss of accountability.

The legal wrangle became so protracted that for three years the family could not afford the £1,200 to inter their daughter's ashes. Michael Secker said he wanted this to be "sorted for my daughter Clare and my grandson Tyler".

He added: "We are forced to go to court and keep reliving what happened. We can't believe no one will take responsibility, even though they were at fault and it shouldn't have happened and Clare should be with us now."

The family, who live in Great Yarmouth, Norfolk, is claiming damages of £250,000, saying the sum will help secure Tyler's future. "It's so hard, especially at this time of year. It's nearly four years now and we know we can't ever have our Clare back and Tyler won't have his mum, but we just want it all to be sorted so we can just get on with bringing Tyler up and not having to relive this nightmare over and over again," Michael Secker added.

The family's lawyer, Sandra Patton, head of medical injury at Ashton KCJ solicitors, said: "This has been a horrendous ordeal for the family, and for those responsible to now argue in front of them about who is legally accountable is unacceptable and cruel."

Patton pointed out that if a patient is hurt or dies as a result of NHS care then the health service assumes responsibility, making payouts from a state-backed insurer called the NHS Litigation Authority. She added: "As NHS services are increasingly provided by private companies, this is going to happen more and more, unless something is done to establish a clear line of accountability.

"It cannot be right that patients no longer know who is actually providing their care, or for those who are harmed to have the additional stress of providers trying to dodge responsibility by pointing to a clause in a contract or insurance policy. Until something disastrous happens we, the public, think we are still within the safety net of the NHS and increasingly that's just not the case. There is little transparency or protection, it seems to me."

The local NHS that contracted out the service, NHS Norfolk and Waveney, says it expects the private firm to be insured. A spokesperson said: "We have every sympathy with the family involved in this case. Although the PCT funds the healthcare received by its local population, in the rare and unfortunate event that things go wrong, it is the provider of that care that will be responsible for paying any damages in the event that liability to do so is established."

The company had been owned by Take Care Now in 2008, before being sold to Harmoni. It is now part of Care UK.

A spokesperson for Care UK, which now owns the firm, said: "The company is very keen to see resolution of what is clearly a complex case, which has caused great distress to the Secker family. We urgently want to work with the other parties involved, including all the relevant insurers, to get the right solution for everyone as quickly as possible."

This article is courtesy of theguardian.