‘The law is an ass’: How to avoid clinical negligence

It’s August; you arrive on the ward all shiny and enthusiastic, with your pencils sharpened and instructions to ‘play nicely’ with the others, and you get on with being a doctor.

Fast forward three years; a letter drops onto your doormat; ‘Suem and Srewem, a firm of clinical negligence solicitors, are delighted to inform you that you are being sued by a patient you can’t remember even meeting, let alone treating.

Practicing safely
In February 2015, the NHS Litigation Authority (NHSLA) [1] announced that it had set aside £26.1bn for outstanding liabilities. Clinical negligence claims rose by 18% in the year March 2013-2014, costing £1.6bn [2]. In the year 2004-2005, this cost was ‘only’ £287m [3]. While undoubtedly a large proportion of these costs are retained by the legal team of the plaintiff (approximately 1/3^rd) [1], and that the NHS is treating more patients, more quickly than ever, there is a clear sign that errors are happening.

In order to avoid said letter arriving on your doorstep with its associated potential to strip you of your qualifications, livelihood and membership of the golf club, what can you do?

Well first, if you are working for the NHS, it is unlikely you will be sued in a personal capacity. Your organisation usually provides vicarious liability – a legal doctrine that assigns liability for an injury to a person who did not cause the injury but who has a particular legal relationship to the person who did act negligently (it’s where the word Vicar comes from – CPD moment!). Generally, an employer will be held liable for any tort (wrongful act) committed while you (the employee) is conducting their duties, providing you were acting within any organisational guidelines, policies and procedures.

The patient has three years in which to bring a claim of negligence against a person/organisation.

Negligence

Negligence is a failure to exercise the care that a reasonably prudent person would exercise in like circumstances, and refers to harm caused by carelessness, not intentional harm. This was established in Donoghue v Stevenson [1932] AC 562 [4].

In order for negligence to be proven, the patient has to establish [5]:

1. That the defendant owed the claimant a duty of care
2. That the defendant breached that duty of care
3. That such breach ‘caused’ the injury/loss (causation)
4. That the injury was reasonably foreseeable and that as a result, the claimant suffered loss

The patient has to succeed on both liability and causation to obtain compensation. In terms of liability, it has to be shown that the doctor acted in a manner that no other similar professional would have done. To prove causation, it has to be shown that harm has resulted which would not otherwise have occurred (i.e. the action of the doctor was more than 50% likely to have caused the harm).

1. Duty of care

You have a duty of care to your patient by virtue of the doctor/patient relationship. In undertaking this duty, Lord Atkin, ruling on Donaghue v Stevenson [6] stated; ‘You must take reasonable care to avoid acts and omissions which you can reasonably foresee would be likely to injure your neighbour’.

In this instance, you neighbour of course, is not the person at number 74, rather defined as “…persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.” [6]

2. Breach of the duty of care

The usual test to establish a breach of duty of care is whether a responsible body of medical practitioners would have acted in the same way. This arises from the Bolam Principle [7]:

‘The test is the standard of the ordinary skilled man exercising and professing to have that special skill.  A man need not possess the highest expert skill at the risk of being found negligent… it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art…’

In essence, you act in accordance with practice accepted by a responsible body of professional opinion. However, you also have to consider that the greater skill, experience and expertise you have the greater is your duty of care. In essence, it is the post you hold that carries the duty of care. This is a salutary warning to those who profess themselves ‘experts’.

Ultimately, however, the court determines what would be a reasonable action in a set of circumstances by the application of the modified ‘Bolam test’ and where necessary, the ‘Bolithio test’ [8]. In Bolithio, the House of Lords decided in effect that if the management by a body of responsible doctors was not demonstrably reasonable, it would not necessarily constitute a defence. If professional opinion called in support of a defence case was not capable of withstanding logical analysis, then the court would be entitled to hold that the body of opinion was not reasonable or responsible. More simply put – you cannot defend a case on the basis of a current practice that is not reasonable or logical.

3. Causation – the ‘but for’ principle

Once the claimant has proved a breach in the duty of care, they have to demonstrate a causal link between that breach and harm suffered. Here, the ‘but for’ test is used; i.e. but for your carelessness, the patient would have suffered no harm.

4. Reasonably Foreseeable

This is fairly self-explanatory. One could reasonably foresee that putting someone in a bath of boiling water will cause harm. However, as found in Roe v Minister of Health, one may not foresee that phenol will seep through invisible cracks in the ampoules stored in the phenol [9].

One also has to determine remoteness. For example if you someone smashes into the back of your car and your suffer whiplash, you have a claim. If however, you are stuck on the M25 five miles behind an accident and you get a pressure ulcer from sitting in your car due to the delay, tough. To remote, cause not established.

How to avoid litigation

This article of course, is only a brief skip through the complexities of clinical negligence. It is a far-ranging topic, and one that all practitioners should be reasonably au-fait with.

Tidy [10] suggests some tips for avoiding litigation:

• Make comprehensive and contemporaneous notes
• Record all patient contacts
• Record all Did Not Attends
• Always give and record follow-up advice
• Detect and act upon abnormal results
• Stay safe – always consider the possibility of a serious diagnosis.
• Apologise if necessary – sometimes that’s all that is required

If the worst happens, consult your medical insurance company.

If you would like to comment on any of the issues raised by this article, particularly from your own experience or insight, Healthcare-Arena would welcome your views.

References

1. National Health Service Litigation Authority. Report and Accounts 2014/15. http://www.nhsla.com/aboutus/Documents/NHS%20LA%20Annual%20Report%20and%20Accounts%202014-15.pdf Accessed August 2015
2. Neville S, Gray A. Medical negligence costs ‘threat’ to National Health Service. Financial Times. 9^th February 2015. http://www.ft.com/cms/s/0/f4da10f6-a255-11e4-9630-00144feab7de.html Accessed August 2015
3. Mendick R, Donnelly L, Kirk A.  Medical blunders cost NHS billions. The Telegraph. 11^th July 2015. http://www.telegraph.co.uk/news/health/news/11733719/Medical-blunders-cost-NHS-billions.html Accessed August 2015
4. e-law resources. Tort Law: negligence. http://e-lawresources.co.uk/Negligence.php Accessed August 2015
5. Lynch J. Civil Law and Negligence. In Clinical Responsibility (Ed. Lynch J). 2009. Radcliffe. Oxford
6. Donaghue v Stevenson.1932. All ER Rep 1: 1932 AC562
7. Bolam v Friern Barnet. 1957. 2. All ER 118.
8. Bolithio v City & Hackney HA. 1988. AC232
9. Roe v Minster of Health. 1954. 2. AER. 131
10. Tidy C. Clinical Negligence. Patient. 2015. http://patient.info/doctor/clinical-negligence Accessed August 2015