Avoiding Errors in General Practice

Kevin Barraclough, Jenny du Toit, Jeremy Budd, Joseph E. Raine, Kate Williams, Jonathan Bonser

• Publisher: Wiley-Blackwell
• Year: 2012
• ISBN:
  9781118508893
• Edition: 1
• Topic: Medicine
• Subtopic: Family Medicine & General Practice

Some of the most important and best lessons in a doctor's career are learnt from mistakes. However, an awareness of the common causes of medical errors and developing positive behaviours can reduce the risk of mistakes and litigation.

Written for Foundation Year doctors, trainees and general practitioners, and unlike any other clinical management title available, Avoiding Errors in General Practice identifies and explains the most common errors likely to occur in an outpatient setting - so that you won't make them. The first section in this brand new guide discusses the causes of errors in general practice. The second and largest section consists of case scenarios and includes expert and legal comment as well as clinical teaching points and strategies to help you engage in safer practice throughout your career. The final section discusses how to deal with complaints and the subsequent potential medico-legal consequences, helping to reduce your anxiety when dealing with the consequences of an error.
Invaluable during the Foundation Years, Specialty Training and for Consultants, Avoiding Errors in General Practice is the perfect guide to help tackle the professional and emotional challenges of life as a GP.

PART 1

Section 1: The legal structure of negligence

A few words about error

If our aim is to reduce the number of clinical errors, then we must explain what we mean by ‘error’. The Oxford English Dictionary defines ‘an error’ as a mistake. This is self-evident and does not really help us, the authors, to define our goal.

We could define our aim by looking at the end-result of errors and say that we want to prevent poor patient outcomes. That must be our primary concern, but our aim is broader; many mistakes can be rectified before any serious harm is done.

We could look at the seriousness of the error, how ‘bad’ the mistake actually was. Some errors could be so crass and the consequences so serious that they can be labelled ‘criminal’ by one and all and in fact some cases are investigated by the police and come before the criminal courts, as we shall see later. Other errors are the sort that only become obvious with the benefit of hindsight and could be made by anyone, even the best of doctors. In short, we want to look at all errors across the spectrum. What we hope to achieve is to raise the standard of care provided to patients, so that mistakes of all kinds are reduced.

But as soon as we mention error, the word negligence also springs to mind. The law has defined negligence in specific terms and not all errors will be considered negligent. But since the law looms large in any discussion of clinical error, we will now provide a brief explanation of what negligence in a legal context actually means and on how the compensation that we mentioned in our Introduction is calculated, when negligence occurs.

Medical negligence

If a doctor makes a mistake in the treatment of a patient, then he or in the case of a child, his family, may decide to pursue the doctor for compensation. Generally speaking, in order to win compensation, the family will have to prove that the doctor (or the collectively the practice, or Trust) were negligent.

Negligence

Before looking in detail at what is relevant to this book, medical negligence, we need to know the basics that lie behind what is called the tort of negligence (tort is simply the old French word for wrong; in modern legal terms, it forms a branch of legal study).

In principle, a person is liable in negligence if he breaches a duty owed to another in such a way as to cause damage to that person. What does this mean? In practical terms, in order to decide whether an act is negligent, a lawyer will break this formula down, looking at each of its constituent parts, phrase by phrase, word by word. For example, he will ask himself whether a duty of care exists between the injured person and the alleged defendant.

It may not always be clear whether a duty exists in a given set of circumstances, but as far as medical treatment is concerned, it is assumed that a doctor owes such a duty to his patient. The key questions in any medical negligence case are whether that duty to take care has been breached and then if it has, whether any damage has been caused as a result of that breach.

Has there been a breach of duty?

When the treatment of a patient comes under scrutiny in a potential negligence claim, the first question that will be asked is: was that treatment in accordance with the standards of a body of reasonable or responsible general practitioners? If it was, then the general practitioner will not have breached their duty of care; but if the treatment does not accord with the standards of a reasonable body of general practitioners, then they will have breached that duty.

This test was first formulated by the House of Lords in the case of Bolam v Friern Hospital Management Committee in 1957. Hence the Bolam test.

Over the years, a body of cases has built up that indicates how this Bolam test should be applied. How, for instance, should we look on a case, where in a given set of circumstances, one set of general practitioners may treat a patient in a certain fashion, while others would adopt a different approach? Answer: it is enshrined in case law that so long as both bodies of general practitioners are reasonable/responsible, then it would not matter which of the two approaches the doctor adopted. In other words, it is possible to have more than one correct approach to treatment.

But this begs the question: who determines whether you have breached your duty of care?

If a general practitioner has received a letter of claim from the solicitors representing the family concerning the treatment of a patient, this should indicate that the family have investigated the case and gone to medical experts who have written reports critical of the care provided. At first blush, there is a case for the doctor to answer.

In response, the defence organization of the general practitioner, or the lawyers for the Trust, will instruct experts to look at the allegations made against it. The experts will be asked to consider both breach of duty and causation. So in the first instance, the answer to the question is that the opinions of the experts, as interpreted by the lawyers, will determine the progress of the case. If both experts, the expert for the family and the expert for the defendant believe that the care was substandard (it did not accord with the standards of a reasonable body of general practitioners), then it is likely that the defence organization will concede that the treating doctor has breached their duty of care. But what happens, if the expert for the defendant general practitioner concludes that the treating clinicians have not breached their duty of care?

At this point one may say that the difference in the two opinions, that of the family's expert and that of the defendant's expert, simply reflects two different approaches. Have we not just said that a doctor will not breach his duty of care, so long as he acts in accordance with a reasonable body of opinion? Has not the general practitioner's expert supported the clinicians' care? Is this not enough?

The short answer is that it may be, but not necessarily. The Bolam test has been qualified or rather refined by the case of Bolitho v City and Hackney Health Authority. The judges in this 1993 case stated that although one group of so called reasonable practitioners may adopt a certain approach to treatment, if that approach does not stand up to logical analysis, then a doctor cannot expect his treatment of the patient to be endorsed, if he adopted that apparently ‘reasonable’, but illogical approach to treatment. This is just one way in which the competing views of experts may be resolved. But it may come down to something less tangible: merely that one expert is more believable than another.

At the end of the day, if the case cannot be determined by other means, it will come before a judge, who will hear all the evidence, listen to the experts and decide which of them he prefers. It is, of course, he who will be the final arbiter. But before then, depending upon where in the United Kingdom the case is brought (the procedural rules differ from jurisdiction to jurisdiction), evidence will have been disclosed, meetings will be held and views will crystallize. The experts for the opposing sides will have met and their opinions may shift one way or the other. The reality is that few cases will go before a judge. They will either be settled out of court or the patient or family will decide to drop the case.

Causation

But let us assume that the patient proves that the general practitioner has breached their duty of care to him or her. This does not automatically mean that they will be awarded any money. In order to obtain compensation, they must clear the causation hurdle. They must demonstrate that the breach of duty caused some injury or damage to them, that it changed the outcome for the worse.

In some cases, causation is uncomplicated and straightforward. In others, it can be fiendishly complex. In the context of this book, we shall not delve too deeply into its intricacies, but hope to give you some idea of its basic concepts.

As an example of straightforward causation, take the case of a general practitioner who misdiagnoses acute angle closure glaucoma as migraine and the patient loses the use of one eye. It will be relatively easy to prove causation because if the condition was suspected and diagnosed while the patient had a painful eye but good sight, swift treatment would have saved the sight.

Causation will be far less easy to prove in a case of delayed diagnosis of colorectal cancer. At diagnosis the patient had inoperable disease with distant metastases. Would the metastases still have been there if the general practitioner had referred the patient 9 months earlier? The patient died of his disease, but would he have lived but for the delay?

Damages

The purpose of a claim in negligence is to provide the patient or family with compensation for any harm done to him through substandard care. Once it is established that the doctor has breached his duty of care to the patient and that that breach has caused injury, the court will move on to determine how much the claimant should be awarded in damages.

Clearly, it is impossible to adequately compensate someone in monetary terms for the physical disabilities they may suffer as a result of negligence, but the idea behind compensation is to put the patient or family in the same position as they would have been, if the error had not been made.

The patient will be given a sum of money which is designed to compensate him for his pain and suffering. He will also receive a sum to compensate him for any monetary expense arising from the negligence which he has incurred in the past: for example, the costs of physiotherapy.

Finally, he will be compensated for the future losses that he will incur as a result of the negligence. The sorts of loss will depend on the severity of the injury. In the most severe cases of brain damage, the compensation for future loss could include sums for loss of earnings, the cost of buying and adapting a suitable home, the costs of nursing care, physiotherapy, occupational therapy, speech therapy and computer technology to aid in communication. Over the lifetime of a brain-damaged child, for example, the loss that he will suffer as a result of negligence could easily be several million pounds, depending on his life expectancy.

The claimant may receive the damages as a one-off lump sum payment. Alternatively, he may receive periodical payments spread over his lifetime.

If, however, the patient dies as a result of negligence, then the damages will be very limited. His estate will be awarded a sum for his pain and suffering and his funeral expenses. The family will also receive a statutory sum for bereavement damages that is currently set at £11 800.

The limitation period

An adult injured through medical negligence has three years to start his claim formally in the courts. (This three year period runs essentially from the time when the negligence occurred, but is more accurately defined by when the person harmed knew of the negligence.) Although the court can extend this limitation period in certain circumstances, if he fails to start court proceedings within these three years, he can no longer pursue his claim.

The rules concerning children are different. Children are not considered to have legal capacity until they are 18. Before then, a child's case will be brought on his behalf by his parents, standing in the child's legal shoes. The ‘limitation clock’ does not start to tick until the 18th birthday. Therefore, a child who has suffered injury has until he is 21 to bring a claim.

However, if a person lacks mental capacity beyond the age of 18, the limitation clock may never start to run. He can then bring a case at any point in his life. ‘Mental capacity’ in this context means the ability to run one's own financial affairs; it is different from the test for capacity in consent cases (see below).

The most expensive cases, the ones that cost millions of pounds, are often those that concern brain-damaged infa...