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clinical negligence

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Article 1 of a 3 part series on the NHS

Original illustration for Healthcare-Arena by Fran Orford

It all started so well. In 1946, the National Health Service Act was published, and on the 5th July 1948, the NHS created. Welcomed, fêted, needed. From the idea of universally available healthcare regardless of wealth, the NHS was initially based on three core principles: that it met the needs of everyone; that it be free at the point of delivery; and that it be based on clinical need, not ability to pay. Today, the NHS is a different beast, facing many new challenges. Stemming from extensive discussions with staff, patients and the public, these three guiding principles have expanded to seven principles that are still underpinned by core NHS values (1).

  • Principle 1. The NHS provides a comprehensive service available to all.
  • Principle 2. Access to NHS services is based on clinical need, not an individual’s ability to pay.
  • Principle 3. The NHS aspires to the highest standards of excellence and professionalism.
  • Principle 4. The NHS aspires to put patients at the heart of everything it does.
  • Principle 5. The NHS works across organisational boundaries and in partnership with other organisations in the interest of patients, local communities and the wider population.
  • Principle 6. The NHS is committed to providing the best value for taxpayers’ money and the most effective, fair and sustainable use of finite resources.
  • Principle 7. The NHS is accountable to the public, communities and patients that it serves.

Aspiring to excellence and attempting to meet such high expectations does not come cheap – there is a constant battle to maintain much-needed services in the face of financial cutbacks. But this is not new, almost from day one, the government was looking at ways to save money; the Guillebaud Report of 1955 found that in relative terms, NHS spending had fallen from 3.75% to 3.25% of Gross National Product (GNP) and that capital spending was running at only 33% of pre-war levels.

Governments continued to tinker with the NHS; cuts, changes, Acts, and reorganisations have happened almost on an annual basis since 1948. These can be viewed on an excellent Nuffield Trust info-graphic (2). Examples include:

  • 1973 – NHS Reorganisation Act.
  • 1983 – Griffiths report commissioned to explore staff and other resource efficiencies.
  • 1990s – split between purchasers and providers of care, GP fund-holders and a state-financed internal market to drive efficiency, the Patient’s Charter, NICE & NHS Direct established, GP fund-holding abolished, primary care groups (PCGs) established.
  • 2000s – 10-year plan implemented (modernisation, investment & reform), SHAs, PCTs created, and Wanless report recommends investment in NHS. In 2003 after reorganisation, foundation trusts established, then practice-based commissioning introduced, followed by the New NHS (2013, resulting from Health & Social Care bill), the Five Year Forward View (2014) and in 2015, the launch of devolvement in Manchester.

It seems that successive governments have almost been in a classic abusive relationship pattern with the NHS – “I only batter you because I love you…”. While waxing lyrical about the NHS to the rest of the world, in reality, they want savings to be realised and to contribute less to its running. The latter shouldn’t be too difficult, though. Figure 1 shows approximate GDP spend on the NHS since inception (Chantrill 2015).

Figure 1:  GDP spend on NHS since 1948 (3).

Figure 1:  GDP spend on NHS since 1948 (3).
Figure 1

At Eight percent GDP, current NHS spending is at its highest, According to the Organisation for Economic Co-operation and Development (OECD) figures, UK spending is lower than other 15 other OECD countries, on a par with five, and above 11 others (4). However, the current Government has pledged to ‘invest’ £8bn pa into the NHS until 2020, the question is – can we stop money from leeching out of the NHS?

It would appear not. In 2015, NHS organisations in England ended the financial year with a total deficit of £822m, compared with £115m the previous year. As a result, the NHS regulator, Monitor and Secretary of State for Health, Jeremy Hunt, have thrown their toys out of the pram, with Mr Hunt, in particular blaming everything from agency staff costs to consultants playing golf (instead of working seven days per week). Foundation trusts were told by Monitor that their financial forecasts for the next year were untenable and further savings must be made on top of the £22bn they need to save over the next 12 months (5).

Does the government have a point? Carter’s interim report on NHS efficiency appears to support this (6).  For example, the review team has found:

  • A wide variation in spending on medicines, everyday healthcare items and on NHS facilities, including maintenance and heating, between the 22 NHS Trusts studied.
  • A potential saving of £5bn a year on NHS workforce and supplies.
  • An increases in hospital staff efficiency by just 1% could save the NHS around £400m per year.
  • A high level of inefficiency in NHS staff management; one hospital was found to be losing £10,000 a month in workers claiming too much leave.
  • Inconsistent costing for elective surgical procedures, such as hip operations (sometimes costing twice as much as they should).

A lack of research into cost-effective surgical implants. For example, more expensive hip joint prostheses did not last as long as less expensive ones, resulting in more hip replacements and hospital admissions. This single example costs the NHS an extra £17m each year.

Recommendations included in the interim report (5) include:

  • Better use of NHS staff through flexible working and better rostering.
  • Better use of prescribed medicines; for example, one NHS Trust saved £40,000 a year by using a non-soluble version of a medication.
  • More savings made on hospital items such as aprons, gloves and syringes. (For example, latex gloves costing £5.44 a box at one hospital are bought for £2.39 in another).
  • The use of a single electronic ‘catalogue’, facilitating more ‘competitive’ NHS purchasing.

Inefficiencies contribute to deficits, so can better management of NHS resources make substantive savings without affecting patient care? Probably, examples of wastage include the use of specialised equipment like imaging machines only on a Monday to Friday basis, and the overuse of agency staff (across all aspects, cleaners, nurses and drivers). Addressing these issues is critical; increasing running costs as well as and rising indirect costs such as clinical negligence are not sustainable. The leakage of money out of the NHS points to poor management and inefficiency and calls to question whether improvements in the running of NHS should be the government’s focus, rather than financial cutbacks. In part II (“Fixing the NHS”), Healthcare Arena explores NHS management, cutbacks and efficiency to ask if the organisation as a whole really needs fixing.

 

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. The NHS Constitution. https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/480482/NHS_Constitution_WEB.pdf Accessed December 2015
  2. Nuffield Trust. The History of NHS Reform. 2012. http://nhstimeline.nuffieldtrust.org.uk/?gclid=CKDAvbrttMcCFVdAGwodex8Bfg Accessed August 2015
  3. Chantrill C. UK Public Spending since 1990. http://www.ukpublicspending.co.uk/spending_brief.php Accessed August 2015
  4. The King’s Fund. Health care spending compared to other countries. 2015. http://www.kingsfund.org.uk/projects/nhs-in-a-nutshell/health-care-spending-compared. Accessed August 2015
  5. Parnham D. The Carter Review. Procurement in the NHS. HealthCare-Arena. 20th July 2015. https://healthcare-arena.co.uk/the-carter-review-procurement-in-the-nhs/
  6. Department of Health: NHS Procurement. Review of Operational Productivity in NHS Providers. Interim Report. June, 2015. https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/434202/carter-interim-report.pdf

 

 

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Image: ©Central IT Alliance/iStock #41328980

Are you afraid of being sued? Do you have sleepless nights worrying about the legal consequences of misdiagnosing a patient?

If you do, then you are not alone – a survey earlier this year found that 67% of GPs in the UK are fearful of being sued. The survey was conducted by the Medical Protection Society (MPS) among 600 GPs. And it seems that GPs’ fears are not without foundation! MPS’s analysis of medical claims shows that GPs are more likely to be sued now than ever before, with 35% of respondents having received a claim and 58% knowing a colleague who has. In fact, UK GPs are twice as likely to receive a claim related to their work this year as they were seven years ago.

The fear of litigation is having serious repercussions on GPs themselves and on their practices. Those GPs who had received a claim stated in the survey that it had an impact on their stress/anxiety (89%), morale (86%), confidence (74%) and health and wellbeing (63%).

When the results of the survey were announced, Dr Rob Hendry, Medical Director at the Medical Protection Society said that GPs were facing immense pressures, including increasing demand, more complex guidance, rising patient expectations and negative media coverage. His message was clear: “If we are to recruit and retain GPs then we must tackle the culture of fear that GPs are currently working in. We must give them back the confidence in their abilities and allow them to do what they do best – providing patients with excellent care.” [1]

Does this matter? What is the impact of this fear of litigation?

The short answer is that it takes a huge toll on the lives of the doctors. A second MPS survey of 600 UK members revealed that 85% have experienced mental health issues, with common issues being stress (75%), anxiety (49%) and low self-esteem (36%). A third of respondents (32%) have had depression during their medical career, while one in 10 (13%) stated they had experienced suicidal feelings. And these feelings have an impact on their day-to-day work with 60% saying that their mental health affects their concentration [2].

How do doctors deal with the situation?

Even though mistakes happen and nobody can be expected to be infallible it cannot be right that doctors have to work in fear of litigation when they must make increasingly difficult decisions in an era of rising patient expectations.

According to a recent systematic review of the literature on malpractice claims [3] the primary causes of malpractice claims are failure in diagnosis (or delay in diagnosis) and medication error. The most commonly cited missed or delayed diagnoses in adults were cancer and myocardial infarction, while in children the main diagnosis issue was meningitis. Wallace and co-workers also examined the literature for possible cognitive causes of misdiagnoses and found that the primary causes were GPs misattributing the symptoms to an ‘obvious’ or readily available diagnosis, and an issue referred to as ‘anchoring heuristics’ where GPs tend to maintain their initial diagnostic decision instead of looking for alternative explanations [3].

Physicians have a number of ways of responding to the fear of litigation. The primary strategy is the adoption of ‘defensive medicine’. We can think of defensive medicine as a doctor’s deviation from his or her usual behaviour (or good practice) in order to reduce or prevent complaints or criticism from patients or their families. Osman Ortashi and colleagues conducted a survey recently to assess the prevalence of defensive medicine among hospital doctors in the UK. 78% of the 202 doctors surveyed reported practicing some form of defensive medicine. The most common form of defensive medicine was ordering unnecessary tests (59%), unnecessary referral to other specialities (55%). Only 9% refused to treat high risk patients, but twice that number (21%) would avoid high risk procedures altogether. Ortashi noted that the NHS has been working for many years to create a blame-free culture in UK healthcare, but the results showed this has not been achieved, with 86% of the doctors in this study believing that they are not working in such an environment [4].

The additional tests and unnecessary referrals that characterise defensive medicine will inevitably add to the overall national costs of healthcare. Ortashi called for further research to more clearly define the cost of defensive medicine to the NHS.

The saddest reaction of all to the pressures of possible litigation would be the gradual draining away of talented doctors from the health system. A 2010 survey of nearly 3000 primary and secondary doctors in Australia found a depressing 33% considering giving up medicine and 40% thinking about retiring early as a result of medicolegal concerns! [5]

To find out more about the cost of litigation see our previous article ‘The law is an ass’: How to avoid clinical negligence.

 

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. Medical Protection Society. 67% of GPs are fearful of being sued by patients [Internet]. [cited 2015 Sep 13]. Available from: http://www.medicalprotection.org/uk/about-mps/media-centre/press-releases/press-releases/67-of-gps-are-fearful-of-being-sued-by-patients
  2. Medical Protection Society. 85% of doctors have experienced mental health issues, reveals Medical Protection survey [Internet]. 2015 [cited 2015 Sep 13]. Available from: http://www.medicalprotection.org/uk/about-mps/media-centre/press-releases/press-releases/85-of-doctors-have-experienced-mental-health-issues-reveals-medical-protection-survey
  3. Wallace E, Lowry J, Smith SM, Fahey T. The epidemiology of malpractice claims in primary care: a systematic review. BMJ Open. 2013;3(7).
  4. Ortashi O, Virdee J, Hassan R, Mutrynowski T, Abu-Zidan F. The practice of defensive medicine among hospital doctors in the United Kingdom. BMC Med Ethics. 2013 Oct 29;14:42.
  5. Nash LM, Walton MM, Daly MG, Kelly PJ, Walter G, van Ekert EH, et al. Perceived practice change in Australian doctors as a result of medicolegal concerns. Med J Aust. 2010 Nov 15;193(10):579–83.

Illustration: ©rozkmina/iStock #44373798

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 1/3rd) [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]

  1. 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.

  1. 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.

  1. 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. 9th 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. 11th 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

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