Clinical Risk and Negligence

Question 1

What is medical error?

Answer 1

When doctors make medical mistakes, rarely due to poor performance, often linked to systemic problems so require systemic improvement.

Question 2

What can patients do if a medical error occurs?

Answer 2

Recourse to:

1. NHS complaints procedure
   - Service provider
   - Commisioner of service
2. General Medical Council
3. The Law

Question 3

How many complaints lodged roughly result in a full investigation?

Answer 3

~30%

Question 4

List the possible outcomes if the Panel concludes that the doctor’s fitness to practise is impaired

Answer 4

• take no action
• accept undertakings offered by doctor (protect patients/public)
• place conditions on doctor’s registration
• suspend doctor’s registration
• erase the doctor’s name from Medical Register

Question 5

What are the two legal options of medical error and the law?

Answer 5

• A criminal action
• A civil action

Question 6

What does ‘a civil action’ consist of within the legal options?

Answer 6

The patient could sue for damages using:

• Tort of negligence (NHS or private)
• Breach of contract (private only)

Question 7

What things must be proved in a civil suit to show negligence?

Answer 7

1. The doctor had a duty of care
2. The duty of care was breached
3. The breach of the duty of care caused harm

Question 8

Who do doctors have a duty of care towards?

Answer 8

Anyone with whom they have a doctor-patient relationship with

Question 9

What type of doctor can be sued directly (without going through NHS)?

Answer 9

GPs

Question 10

What is causation and why is it so tricky?

Answer 10

Sometimes it is easy to establish causation, that the breach of duty of care directly lead to harm. However, proving that the doctor’s negligent action was the cause is very difficult.

It isn’t always something that causes harm but it may be omission of something or the doctor’s behaviour that may have been problematic.

Question 11

If negligence is proven then what is the ‘outcome’ for a civil case?

Answer 11

Damages - may be awarded for both physical and mentla/emotional harm as well as for loss of earning and higher costs.

Might be reduced by concept of ‘contributory negligence’

Question 12

If you sign a prescription on the advice of another or for another doctor, who is legally responsible?

Answer 12

You (the prescriber)

Question 13

What is the four-fold duty of prescriptions?

Answer 13

• correct patient name and drug name
• no comparative or absolute contraindications
• correct dose and directions are given
• provision for appropriate monitoring/follow up

Question 14

What is the limitation period?

Answer 14

The action alleging negligence is to be brought within 3 years of claimant discovering damage, courts have discretion to extend limitation period.

In cases of neonates, period doesn’t start until patient reaches maturity (18) so has up until 21.

Question 15

Can lack of expertise be taken into account when determining negligence?

Answer 15

Yes - doctors do not have to be experts in all things medical but have a duty to refer to someone who does have the relevant expertise.

Question 16

Is lack of experience taken into account when determining negligence in legal settings?

Answer 16

NO - if doctors are not competent to proceed they should seek senior advice and assistance. It doesn’t matter whether they only just graduated as a junior doctor, they should have been competent or have sought advice.

Question 17

How important are guidelines set for doctors? Are they rules or just guidelines?

Answer 17

They aren’t rules but if you depart from a guideline, you must be prepared to justify the departure.

Question 18

How important is note keeping?

Answer 18

The importance of keeping good notes and records cannot be overestimated, records are often very poor.

Your notes will be your (and court’s) main guide to the events that transpired

Question 19

Describe reasons for why the law does not achieve justice for either claimant or defendant

Answer 19

• Process is slow, costly and alienating
• 72% doctors become demoralised
• 38% doctors become clinically depressed
• 70% of claimants are unhappy with the process (even if they win)
• Cases decided on technical points of law rather than substantive merits

Question 20

What is the litigation crisis?

Answer 20

Data from NHS Litigation Authority shows that the costs of medical negligence claims keep rising

Question 21

What is defensive medicine?

Answer 21

The practice of performing tests as a safeguard against possible malpractice liability rather than to ensure the health of patients

Question 22

Why is defensive medicine problematic?

Answer 22

• Very expensive
• Rarely sustainable expalanation for action
• Makes litigation more likely (unnecessary investigation/treatments)

Kind of works like reverse psychology, a doctor does his best to avoid malpractice but ends up performing it as he’s so focused on avoiding it.

Question 23

What is the NHS Redress Act 2006?

Answer 23

Gives patients alternative to litigation and does not involve courts, deals with claims less than £20,000 - aim is to move away from blame culture, to reduce costs and to ‘preventing harm’, ‘reducing risks’, and ‘learning from mistakes’.

Question 24

Would an apology count as a legal admission of guilt/liability?

Answer 24

NO - GMC states that doctors have a duty to apologise and to offer an accurate explanation when events do not go as planned.

Question 25

What is a KEY characteristic to always display to avoid legal action?

Answer 25

communication!!!!!!