Damage limitation

Medical negligence claims are an unavoidable professional hazard for any doctor. But there are steps you can take to protect yourself, says MDDUS solicitor Lindsey McGregor 

IT’S NOT a subject most doctors like to think about at any time in their career, much less when just starting out. But claims of medical negligence pose a risk to even the best clinician. There has long been a common misconception among the public that any mistake or adverse clinical outcome is negligent. Today’s harsh economic climate has only increased the incentive for aggrieved patients to answer those adverts from law firms promising ‘no win, no fee’ legal representation.

As a junior doctor you are unlikely to shoulder much of the responsibility for treatment decisions or the implementation of systems; however, it is always better to understand risk in order to more effectively avoid it. By adopting good habits early in your career you are less likely to face criticism in the future.

So what constitutes medical negligence and how is it proven? Every medical claim must be considered in terms of whether the injury resulted from negligence, which would give the patient a right to compensation, or from a misadventure in which case there is no such right. To be successful, the patient or pursuer (claimant in England) must prove the following factors:

• the doctor owed them a duty of care

• there was a breach of that duty

• the breach of duty was the direct legal cause of the patient’s injury.

Duty of care

It’s very rare for a duty of care not to exist in respect of a patient. NHS trusts and health authorities are clearly liable for the negligent actions of personnel and are responsible for the settlement of claims made against medical staff while under employment.

For a duty of care to exist, there must be reasonable forseeability and proximity of the damage. This means that it must be possible to have anticipated and thus prevented the damage. One such case in which this was at issue concerned a patient who threw himself out of a window (Rolland v Lothian Health Board). The patient was suffering from mental confusion and his condition was well recognised and documented. The trust was sued on the basis that they owed a duty of care to the patient to prevent him from coming to harm. But there was no evidence to suggest that the patient had ever sought to jump or fall from a window before. The judge ruled that the patient’s actions were not reasonably foreseeable and that a duty of care therefore did not exist.

Breach of duty of care 

There is no statute which provides a definition for the term ‘medical negligence’. Legal principles have been established by precedent in case law and each new case is judged on its own merits bearing in mind these principles.

The landmark case in Scotland was that of Hunter v Hanley which was decided in 1955. In his judgement Lord President Clyde wrote: “The true test for establishing negligence in diagnosis or treatment on the part of the doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of, if acting with ordinary care”.

In order to establish whether or not there has been a departure from normal practice, three facts require to be established:

• there must be a normal and usual practice

• the doctor has not adopted that practice

• the course adopted by the doctor is one which no professional man of ordinary skill would have taken if acting with ordinary care.

A heavy onus is placed upon the pursuer in establishing whether or not a breach of duty has occurred. They must instruct their own expert to review the records and to provide an opinion which concludes that all three aspects of the Hunter v Hanley test have been met. If such an opinion cannot be given then the case will fail. When providing the report, the expert requires to take into consideration the experience of the doctor involved and the guidelines and state of medical knowledge at the time of the alleged negligence.

Causation

The pursuer must also establish a causal link between the alleged negligent act and the harm that has been caused. Even where liability is clear and perhaps even admitted, it may not be possible for the pursuer to prove the required causation between the negligence and the damage.

An example of this is the case of Barnett v Chelsea and Kensington Hospital Management Committee. In this case, the judge concluded that a casualty house officer had failed completely to treat a night watchman who had drunk tea contaminated with arsenic. Whilst the house officer was negligent in his treatment of the patient, there was no effective antidote which could have been given to the patient by the time he reached the hospital. It was the view of the court that the night watchman would have died in any event and therefore no loss could be attributed to the negligence.

The claims process

In any medical damages claim a court action must usually be served against either the hospital or the doctor within three years of the alleged adverse event. The main exception to this rule is in the case of children (in Scotland those under 16) who require to raise their action within three years of reaching majority. Time limits can also be extended for those under mental disability. The result of these time delays is that in some cases it can be many years before a doctor is required to give evidence in court.

Once an action is commenced there are processes to generate the many reports that are required to establish negligence, causation and quantum (value of the claim). It can take up to two years for a hearing to be fixed.

The delay between the alleged negligent event and the eventual court hearing can cause enormous stress to those involved, particularly when they may have no recollection of the patient concerned and are relying only on notes made at the time.

MDDUS medico-legal advisers and in-house solicitors will work closely with the member to guide them through the various stages in the claims process. If the claim arose whilst in the employment of a hospital, the Central Legal Office or the National Health Service Litigation Authority will manage the case on behalf of the hospital.

Avoiding risk

The main areas of risk arising in relation to claims are as follows:

• failure to make and keep adequate records

• failure to take proper consent

• lack of appropriate guidelines or protocols or failure to use them

• the use of new techniques with insufficient training, evaluation or audit

• poor supervision of junior staff

• failure to investigate adverse instances quickly

• failure to handle complaints adequately.

Perhaps the best advice on risk avoidance is to always keep good, clear and legible records. Often doctors in medical negligence cases have only their notes to guide them and may have no recollection of the consultation. Many cases turn on the adequacy of a consultation record and this can influence the decision either to defend or settle a claim.

So act now and be aware of the areas where risk can arise, and remember that the MDDUS is there to assist and provide advice if you are concerned.

Lindsey McGregor is a solicitor at MDDUS