Clinical Negligence in General Practice

Michael Drury

• Editorial: CRC Press
• Año: 2020
• ISBN:
  9781315348414
• Edición: 1
• Categoría: Droit
• Categoría: Droit médical

This, the second edition of a text which aims to assist in the identification of skin lesions, contains extra text, algorithms and colour illustrations. Topics overed include erythematous and non-erythematous rashes and lesions on the face, trunk and limbs.

CHAPTER ONE

Cause and effect

Michael Drury

Increasing numbers of complaints

The past 50 years have seen remarkable changes in medical care. The range of effective treatments available has expanded enormously, and their accessibility to almost the whole of the population has increased proportionately. It has been a half century of great medical success, so it is somewhat of a paradox that the number of complaints made against doctors in every field of work has grown greatly during this time. The level of public dissatisfaction with the systems for monitoring medical standards has increased, exemplified dramatically by a number of high-profile cases, such as the paediatric cardiac surgery cases originating in Bristol, which ultimately came before the General Medical Council. Moreover, as therapies have become more powerful, their possible adverse effects have become more pronounced and the public now seeks protection by more ambitious and more punishing litigation.

During the decade from 1988 to 1998 the number of complaints notified to the medical defence organisations increased more than tenfold, and the average cost of compensation more than doubled. The highest award increased from £132 000 in 1977 to £1.6 million in 1998 (awarded to the family of a child who died after the general practitioner failed to diagnose meningitis). Between 1988 and 1997 the number of complaints about doctors received by the General Medical Council more than tripled, and the number in which action was taken more than doubled. The UK legal aid bill increased from £166 million in 1990 to over £600 million in 1996, and the cost to the NHS of providing indemnity rose by over 300% during that period.

Although the number of complaints and the size of awards has increased dramatically, the proportion of successful claims in the courts has not increased. Less than 2% of the cases in which legal action is started still actually reach court, and of those that do, only in 17% of cases is judgement given against the doctor. However, this is not to say that the other cases were trivial or the litigation vexatious. It would be incorrect to assume that because a minority of complaints are upheld in any forum the others should not have been brought. There are probably more patients with a genuine cause for grievance who do not sue than there are patients with spurious claims who do.

The cause of failure of actions is complex, as this book will show. In many complaints there will be genuine misunderstanding or misinterpretation of what can actually be shown to have taken place. At other times it will not be possible to show that the actions complained of caused the damage to the patient and yet, at other times, although a mistake occurred it happened despite care, and it is probable that other thoughtful and careful doctors would have made the same error.

Sometimes the damage alleged to have been done by some treatment, or failure to treat, will launch a high-profile class action, as occurred with drugs such as thalidomide, lorazepam and the oral contraceptives, or from the misinterpretation of cervical smears. One in four complaints against general practitioners follows a patient’s death. Here the emotional issues surrounding such an event make good communication between doctors and relatives particularly important. A breakdown of trust is particularly unforgiving even if there was no error in care. Then clearly there are also a minority of people who have a long history of unhappiness with doctors and of personal difficulties, and even some who believe it might be possible to supplement their income by their interpretation of events – and in some of these cases it is possible to find a pattern of similar attempts in the past. It is therefore of some comfort to know that judges will essentially only find a doctor to be negligent if his or her peers say so.

Fifty years ago, newly qualified doctors could look forward to a lifetime without a single serious complaint being levelled at them, and their subscription to a Defence Society would have been covered by a few hours’ work. Today a new graduate must expect to have to respond to a number of formal complaints during their time in practice and several weeks of work will be needed to pay the annual subscription. However, it is worth noting that even though doctors are more likely to be complained against now than in the past, no greater proportion is likely to be found negligent than in earlier years. Of course this rise in the number of complaints is not peculiar either to this country or to the medical profession. In North America the rise in the number of complaints against all professions has been even greater, and some doctors will pay six-figure professional indemnity fees, all of which are ultimately paid by the patient. Even in this country, lawyers, accountants, financial advisers and members of almost every other profession are experiencing a similar degree of apparent disenchantment. It may be salutary to note in passing that in the case of mistakes made by lawyers, it is usually they themselves that draw attention to the error – a policy which should be adopted by the medical profession (see Chapter 5, p. 77).

The fear is often expressed that the situation in the UK will eventually be the same as that in the USA. It is suggested that if this were to happen, we would become overwhelmed by a tide of litigation, to the detriment of both our professional relationships and our standards of care, because of the need to practise defensively and the time involved in responding to unsuccessful claims. However, this is unlikely to happen because the systems in the two countries are very different, and different factors exist to influence behaviour. One of these is the fact that medical care in the USA is within the private sector to a much greater extent, so a higher proportion of the cost of repairing any damage caused by medical negligence falls upon the patient. Another factor is that the amount of damages in the USA is assessed by a jury and not by the judge, and juries are notoriously more generous. Furthermore, in the USA a jury has the power to add ‘punitive’ damages to ‘cost’ damages, and these can result in huge sums being paid out. In the USA there are more lawyers than there are in all the rest of the world put together. There is one lawyer to every 300 or so citizens, whereas in the UK there is about one to every 1200 citizens. The legal services are also different, and whilst they will undoubtedly change in the UK, the practice of charging contingency fees, no win – no payment, by the legal services is not yet well established and is likely to be carefully controlled. Despite this there is still a view expressed¹ that lawyers will find ‘ways of suing for almost any injury or slight however trivial’ and accusations about ‘ambulance chasing’ still exist. Finally, cultural patterns within the two societies are still very different, and most people within the UK are more diffident with regard to complaining about anything, and consider it ‘un-British’ to do so.

Causes

The causes of the rise in the number of complaints are numerous and complex. Undoubtedly there is now a greater level of general knowledge among patients about technical matters. There is also a much higher level of expectation about what can – and therefore should – be provided. Sometimes the media encourage an unreal expectation about what medicine can or should do, and frequently this goes unchallenged – doctors themselves have contributed to the presence of unreal expectations both within the private consultation and by public statements that they have made. Sometimes this stems from attitudes based more on hope than on reality.

There always was, as Rudolf Klein wrote in one of the early studies on this subject,² ‘good reason to examine the power of Kings and Ministers, bureaucrats and businessmen.’ He added ‘Now, however, it seems equally relevant – perhaps more so – to examine the power of professional people, of doctors and lawyers, town planners and social workers’. Here we have to recognise that it is not only the power that medicine as a science now has but, perhaps more importantly, the patient appears before the doctor stripped of bodily and emotional cover, and it is impossible to overstate the power that this vulnerability gives to the doctor in the transaction.

Thus there is now not as much of the traditional tolerance and patience with less than best practice by the medical profession as there was in the past. This change, allied to more efficient mechanisms for receiving complaints, and fewer barriers to making dissatisfaction known, is sometimes perceived as a positive encouragement to complain. If something has gone wrong in medical care, there is now a widespread belief that someone must be to blame. As society has become more litigious, it follows that lawsuits against doctors have increased. There is also a widespread feeling that doctors – and other professionals – have been insufficiently regulated for too long, and that too much has been expected of self-governance. This has been exemplified by a series of high-profile cases, culminating in 1998 with the widespread concern resulting from the high incidence of deaths among babies operated on for heart disease in Bristol, the apparent technical incompetence of a Kent gynaecologist and the perceived limitations of the subsequent General Medical Council (GMC) investigations.

Effects

The power and cost of medicine have increased enormously in many ways over the past 50 years, due largely to modern technology, but so has the cost of failure. In the days before effective antibiotics, the failure to visit a patient with pneumonia may have done little harm, but today it may be the cause of their death. The treatment of malignancy has now improved to the point that any delay in referring appropriately can lose all the gains made in treatment, and delay in investigating appropriately can become literally a life-or-death decision. Family doctors now have the power to prevent the birth of many babies who would otherwise be born with gross handicaps. Here not only are there major human costs and ethical issues involved, but it may also mean that the neglect of a simple test costing a few pounds can result in the birth of a handicapped baby for whom the parents require tens of thousands of pounds each year to maintain the best quality of life for the child and for those who care for him or her. Failure to prescribe properly can result in children with meningitis becoming brain-damaged, adults becoming dependent on hypnotics or sedatives, and patients being left with permanent disabilities due to a failure to monitor long-term treatment carefully. The development of more complex care within the community requires teamwork and careful co-ordination, and here the failure to communicate properly and keep adequate records can result in devastating problems. Indeed, a common cause of failure identified in many cases in this book stems from the fragmentation of modern medical care, resulting in delivery by different people from different disciplines, often working in different buildings and failing to communicate well. This could well turn out to be the major problem facing medical care in the twenty-first century.

Later in this book cases are described illustrating all of these problems and we deal in more depth, for example, with what constitutes an adequate record. Here it is sufficient to recognise that busy general practitioners do not usually have the luxury of time and space in which to expand their records as they would wish. Other situations occur where a failure to examine a patient adequately may lead to pathology being missed, and failure to listen adequately to patients and their relatives is perhaps the commonest origin of a complaint. It can be seen from this that the issues of most concern are those of a deficiency in normal good practice and usual standards of good care, and not a failure to recognise abstruse clinical syndromes or provide esoteric therapies.

We shall consider the matter of general complaints in more detail later. Suffice it to say here that one study³ identified four major reasons, namely concerns about standards of care, the need for explanation, the desire for compensation and the belief that doctors are accountable. Simanowitz⁴ wrote that ‘The vast majority of the victims of medical accidents do not initially seek financial compensation but want an explanation for what went wrong, sympathetic treatment and, if appropriate, an apology,’ and this is the experience of most of us.

Although the rise in the number of complaints is not peculiar to this profession, the medical community does find itself more disadvantaged than some others in being exposed to triple or even quadruple jeopardy for one complaint – contractual matters scrutinised by the health authority, professional standards by the GMC, personal liability claims within civil law and complaints upheld by the Health Services Ombudsman. Finally, criminal law can become involved by way of a manslaughter charge when gross negligence is alleged. We shall touch upon this, too, later in this book.

Another curious anomaly is that, although the number of complaints against doctors is increasing, the profession of medicine remains top, or nearly so, in public esteem in any popularity poll of the professions. A MORI poll conducted in 1998 concluded that doctors were the most popular of all the professions. This perhaps mirrors the often repeated sentiment that ‘doctors in general are awful but my doctor is wonderful’.

Part of the explanation for this apparent conflict may lie in the particular relationship that exists between doctor and patient. Much of this depends upon trust, a concept which protects either side from exploitation by the other. Of course, a client will trust their solicitor in the same way, and will praise them if they serve well or sack them if they do a bad job, but the relationship will rarely be characterised by the same intensity of feeling that develops between doctor and patient. This is because many of the issues that arise between the doctor and his or her patient will involve sensitive ethical or moral concerns. There may be confidences about other members of their family, or about friends or colleagues at work. Some issues may touch upon sexual weaknesses, moral or character failures or other intensely personal and private matters. Not infrequently the issues concern matters of life or death or may involve problems that will cause permanent handicap. If the doctor serves the patient and the family well, affection and admiration will grow between them, but one lapse or careless slip can, due to a sense of breach of trust, transform these feelings into hatred. For this reason, the cost of a single momentary error can be so high that the efforts required to avoid it must, at times, seem disproportionately great.

However great the consequences of the breakdown of trust can be upon the patient, they may be almost as devastating to the doctor. His or her investment over months or years in developing this relationship is blown away by a single complaint. An allegation of negligence relating to a single incident will not only be deeply felt but may also reflect adversely upon a lifetime of conscientious professionalism. Lord Denning said in one judgement⁵ that for a doctor ‘it was comparable to having a dagger plunged into his back’. Yet every doctor will be aware of times when they have fallen below the high standards they have set themselves and, as they read of the troubles of others, will silently say, as did John Bradford in the sixteenth century whilst watching criminals on their way to execution, ‘There but for the Grace of God go I’.

Maintenance of standards

A fundamental tenet of ‘professional practice’ has been the undertaking to maintain the quality of service provided, and for many years both profession and public have been content to leave it so. For much of the past 50 years this was implicit in the mere fact of being a member of that profession, without having to demonstrate the steps taken to maintain it. However, there has now developed a general acceptance of the need to make this aspiration for quality explicit to both the ‘employer’ and the ‘consumer’. Initially, regular attendance at continuing education sessions, first in a voluntary capacity and then linked to financial reward, appeared to be sufficient, but gradually the notion that performance has to be tested against a standard arose. Audit was seen as one way into this challenging and potentially threatening arena – the systematic recording of performance so that it can be measured against standards either created internally or drawn from outside. However, to be effective, medical audit...