MEDICAL NEGLIGENCE FROM A GP’S PERSPECTIVE

Dr Stephen Murphy – General Practitioner

The Park Clinic, The Park, Cabinteely, Dublin 18

15 November 2014 – NAGP AGM

Who am I?• Full time General Practitioner x 32 years• 6 doctor practice in South Dublin – 3 female, 3 male• 18,400 registered patients age from 0 – 102 years• 75% Private - 25% General Medical Services (Med Card)• Practice conducted 29,600 consultations in 2013• Practice prescribed 84,000 medicines in 2013• Practice gave 2100 vaccinations in 2013

(infant/child/travel)• 2140 Practice referrals to OPD/A&E/Specialists (6% RR)• 104 births and 17 deaths

What do I do?• Full time General Practitioner• A ‘Generalist’ with an interest in Civil DNA relationship

testing, Cognitive Behavioral Therapy and Medico-Legal Medicine.

• M.Sc. in 2008 in Forensic & Legal Medicine (UCD)• 80% Defense : 20% Plaintiff in 2010• 78% Defense : 22% Plaintiff in 2013• Expert Reports for Medical Protection Society, Medical

Defence Union, State Claims Agency & Plaintiffs• Medical Council Fitness to Practise Hearings - Chief

Executive and Defence & Preliminary Proceedings Committee

What is a General Practitioner? THE SHORT EUROPEAN DEFINITION OF GENERAL PRACTICE / FAMILY MEDICINE

General practitioners/family doctors are specialist physicians trained in the principles of the

discipline. They are personal doctors, primarily responsible for the provision of comprehensive and

continuing care to every individual seeking medical care irrespective of age, sex and illness. They

care for individuals in the context of their family, their community, and their culture, always

respecting the autonomy of their patients. They recognise they will also have a professional

responsibility to their community. In negotiating management plans with their patients they

integrate physical, psychological, social, cultural and existential factors, utilising the knowledge

and trust engendered by repeated contacts. General practitioners/family physicians exercise their

professional role by promoting health, preventing disease providing cure, care, or palliation and

promoting patient empowerment and self-management. This is done either directly or through the

services of others according to health needs and the resources available within the community they

serve, assisting patients where necessary in accessing these services. They must take the

responsibility for developing and maintaining their skills, personal balance and values as a basis for

effective and safe patient care. Like other medical professionals, they must take responsibility for

continuously monitoring, maintaining and if necessary improving clinical aspects, services and

organisation, patient safety and patient satisfaction of the care they provide.

European Academy of Teachers in General Practice – 2012

What do GP’s really do?

“Specialists aim to reduce uncertainty, explore possibility and marginalise error.

General Practitioners aim to accept uncertainty, explore probability and marginalise danger…”

Dr Marshall Marinker. Bayliss Lecture.

Royal College of Physicians (London), 1994

Spectrum of General Practice

“For my entire career I have been convinced that general practice is the hardest specialty to do well, and probably the easiest to do badly.

GPs deal in uncertainty all the time.

The next patient could have schizophrenia or piles, unhappiness or cardiac arrest, anything and everything, and in no particular order.”

Dr David Haslam BMJ Career Focus 2012;331:151-152

Chair: British Medical Association 2011-2012

Chair: National Institute for Clinical Excellence

Indemnifiers & Insurers• Medical Protection Society (Indemnifier)• Medical Defence Union (Indemnifier)• Medisec (Insurance underwritten by Allianz PLC)• Self – contrary to Section 50 of Medical Council’s guide to

Conduct and Ethics for Registered Medical Practitioners –

“You must ensure that you have adequate professional indemnity cover for all the healthcare services that you provide.”

• Medical Practitioners (Amendment) Act 2014 (?) - to amend the Medical Practitioners Act 2007 to provide a requirement for registered medical practitioners to have medical indemnity insurance.

The Law of Negligence

Three essential elements:

1. A duty of care – the basis of the doctor/patient relationship.

2. Breach of duty – failure to reach the required standard of care.

3. Causation – harm or damage caused by a breach of duty.

Cases are decided on the civil not the criminal standard – ‘On the Balance of Probability.’

Causation

• To succeed, a Plaintiff must prove on the balance of probabilities that an inappropriate act or omission caused or made a material contribution to his injury

Negligence

• Negligence is a legal concept. • It means a failure to attain a reasonable standard of care

and not neglect or willful misconduct. • Perhaps ‘Medical Accident’ is a better term than

‘Negligence’ when dealing with either Plaintiff or Medical Defendant.

• Any doctor can make an error of judgment. • Some errors are legally defensible, others are not.• What is important is whether the medical management

can or cannot be defended by a responsible body of professional opinion.

The Dunne Case

• The test for establishing negligence in a patient’s diagnosis or treatment derives from the Dunne v Jackson and the National Maternity Hospital in which Finlay CJ set out the principles that courts have since applied when assessing the standard of care the patient received. This judgment incorporated both the Bolam and the Bolitho judgments.

The Dunne Test

The Chief Justice said that the true test for establishing negligence in diagnosis or treatment on the part of a medical practitioner is whether he has been proved to be guilty of such failure as no medical practitioner of equal specialist or general status and skill would be guilty of, if acting with ordinary care.

If the allegation of negligence against a medical practitioner is based on proof that he deviated from a general and approved practice that will not establish negligence unless it is also proved that the course he did take was one which no medical practitioner of like specialisation and skill would have followed had he been taking the ordinary care required from a person of his qualifications.

The Dunne TestIt is quite in order for an honest difference of opinion to arise between two doctors as to which is the better of two ways of treating a patient and the following of one course rather than the other does not imply negligence. It is not up to the judge to decide which of two alternative courses is in his opinion preferable but his function is merely to decide whether the course of treatment followed complied with the careful conduct of a medical practitioner of like specialisation and skill to that professed by the doctor in question.

However, even if the defendant can show that the management accorded with general and approved practice, the Plaintiff will still succeed if it can be shown that such management was inherently defective.

Standard of Care in GP

• The implications of this for those in primary care are that the standard against which one is judged is that of one's own peers - not that of the wisest and most prudent doctor who exists.

• Certainly not that of a hospital consultant who may carelessly venture expert opinion as to the correct management in general practice.

• By the same principal, the experts who give evidence to the Court about the standards in general practice can only be general practitioners who were practising at the time of the case.

• The standard to be applied is not that of a most astute doctor or a Professor of General Practice, but that of an ordinary and competent GP acting reasonably & responsibly.

Some causes of medication errors

• Badly transcribed instructions• Repeating or transcribing hospital prescription errors• Illegible prescriptions• Miscalculation of dosage• Confusion between similar-sounding drug names or similar-

looking packages• Clicking on the wrong drug in a drop-down menu• Prescribing contraindicated drugs (relative)• Not checking for potential drug interactions (relative)• Not reviewing repeat prescriptions• Failure to follow up/monitor medication• Failure to act on laboratory results.

Some causes of administrative errors

• Failure to pass on important information• Failure to arrange appointments, investigations or

referrals with the appropriate degree of urgency• Failure to review the results of investigations • Failure to arrange follow-up and monitoring• Mislabeling, misfiling and failure to check labels.

Some causes of medical note problems

Some causes of medical note problems

• Notes written as an aide-memoir not for 3rd parties• Not recording negative findings• Not recording substance of discussions about the risks

and benefits of proposed treatments• Not recording drug allergies or adverse reactions• Not recording the results of investigations and tests• Illegible entries• Not reading the notes when seeing a patient (how

retrospective?)• Altering notes after the event (incorrectly)• Wrong patient/wrong notes.

Some causes of medical note problemsMr XXXXXXXX XXXXXXXXXXX DOB: XX/XX/XXXX Age 49y 7m

XXX XXXXXX XXXX XXXXXXXXXXXX Co. Dublin Occupation: XXXXXXXXXXXX

 

04 June 2011 Travelling to Australia to visit XXXX. Stopping off in Thailand, Cambodia and Vietnam. Need

vaccinations. No C/I DPT, typhoid, hepatitis A given. Malaria prophylaxis discussed. Also script for GI upset,

insect bites. Advised aspirin no use for long haul. Advised against hypnotic also. Rx Malarone after discussion.

Above note recorded by: XX

  

01 November 2011 Flu vaccination given left deltoid. No C/I

Above note recorded by: XX

 

16 December 2011 Telephone: Feeling guilty about leaving mother in nursing home over Christmas.

Counselled against taking mother out in view of osteoporotic fractures.

Above note recorded by: XX

  

16 February 2012 URTI and coughing x 2 weeks. Has tried OTC meds. Feeling exhausted but having

difficulty sleeping with cough. Low energy, low mood and appetite poor. No sputum. Cough dry. O/E T 36.6 P 80

s/r ENT all red. No adenitis. Chest scattered crackles but nil localising. Mild wheeze.

Rx Co-Amoxyclav 625mg, Deltacortril 30mg x 5/7. Review if not settling.

Above note recorded by: XX

1 March 2012 Still coughing – slight pink stain to otherwise clear sputum.

Still exhausted and off food. O/E T 36.6 P 80 s/r ENT all red. No adenitis. Chest scattered crackles but

nil localising. Mild wheeze. Refer to XXXXXXXXXXXXXXXX for CXR and phone me day after.

Above note recorded by: XX

Stephen Murphy

Mr XXXXXXXX XXXXXXXXXXX DOB: XX/XX/XXXX Age 49y 7mXXX XXXXXX XXXX XXXXXXXXXXXX Co. Dublin Occupation: XXXXXXXXXXXX 5 March 2011 CXR shows suspicious lesion R lower lobe – Lung primary cannot be excluded – referral for further specialist evaluation, including CT scan of Thorax, advised. Above note entered by: XXXXXX XXXXXXXXXX via Healthlink.  22 October2011 Flu vaccination given left deltoid. No C/I

No follow up on CXR from last March. Urgent respiratory consult with XX XXXXXXXXXXX in

XXXXXXXXXXX Hospital arranged. xxReferral Letter.rtfxx faxed through.Above note recorded by: XX

 05 November 2011 Telephone: XX XXXXXXXXXXX phoned – bronchoscopy/washings/biopsy confirmed

non-small cell lung Ca.Above note recorded by: XX

  06 November 2011 Called round to see XXXXXXXX and said how sorry I was to have missed his report. He

said that he forgot to call and then assumed that as he hadn’t heard all was OK. Said he was upset and disappointed and felt I had let him down. I apologised again and said that I would do all I could to expedite treatment etc.

Above note recorded by: XX

14 November 2011 Mrs XXXXXXXXXXX phoned and said that they wanted the whole family’s notes transferred to Dr XXXXXXX XXXXXXXXXXX

Above note entered by: XXXXXX XXXXXXXXXX

04 December 2011 Letter from XXXXXXXXX XXXXXXXXX & Co requesting copies of all notes and records. Consent√

Above note by: XX

High-risk patients and high-risk medicationsMedication errors make up a fifth of all errors occurring in general practice, and many of these are preventable1. Some patients are especially likely to experience serious adverse events due to prescribing errors.

These include:• Patients over 65 years and under 16 years of age• Patients on four or more medicines• Patients recently discharged from hospital and/or

attending hospital outpatient departments.• The primary-secondary care interface is especially

hazardous. All medicines are hazardous, but some are more hazardous than others.

1. NHS National Prescribing Centre (UK), Saving time, helping patients: A good practice guide to quality repeat prescribing (2004)

High-risk patients and high-risk medications

• Some medicines frequently cause serious harm, warranting special care and rigorous monitoring, including:

• Non-Steroidal Anti-inflammatory Drugs• Benzodiazepines• Oral and topical steroids• Oral contraceptives• Anti-depressants• Opiates• Potentially toxic medicines: methotrexate, DMARDs,

lithium, azathioprine, warfarin, “Biologics.”

Failure to diagnose, investigate or treat:

• Acute cardiac events – especially out-of-hours• Deep Vein Thrombosis• Cauda Equina Syndrome• Meningitis• Fractures• Cancer – particularly breast, skin, prostate, bowel, lung &

brain• Ectopic Pregnancy• Hand infections • Hypertension• Appendicitis (and other bowel infections)• Sudden death (from almost any cause)

Duties of GP Expert include• Duty is to the Court and not the Instructing Solicitor/Client• Report should be free standing• Report should be comprehensible with technical and

medical terms explained• Report should contain an overview and chronology• The opinion should contain the relevant facts used to arrive

at the opinion• Disputed or contentious facts/issues/opinion(s) identified• Opinion should address the questions asked• Opinion should be confined to the expert’s field of expertise

and should never answer ‘The Ultimate Question’• Report should be timely

A Solicitor’s view Ernest J. Cantillon – Solicitor – Co. Cork

• “We always seek to retain conservative experts with top-class reputations. There is no point in retaining somebody who would tell you what you want to hear, as that person will invariably fail to stand up to cross examination.”

• “There can be difficulties in getting experts to assist. Whilst one may find and identify an expert in a particular subspecialty, they may not have medicolegal experience. This can create difficulties when it comes to the content of their report. That is to say, it may not address matters that require to be addressed in medicolegal context.”

Expert’s relationship with the Court• Expert must avoid bias:

• The trial judge in Vakauta v Kelly referred to the defence medical experts as:

• “That unholy trinity”….and continued saying that the GIO's usual panel of doctors "think you can do a full weeks work without any arms or legs" and that the three doctors involved in this case - Drs Lawson, Revai and Dyball - expressed opinions which were "almost inevitably slanted in favour of the GIO by whom they have been retained, consciously or unconsciously".

(1989) 87 ALR 633

Tips to avoid litigation (and sleep well)

• Make good contemporaneous notes.• Record numbers – Temp 36.1oC, BP 132/86, P 78 bpm sinus rhythm• Record negative as well as positive findings• Record all patient contacts especially telephone conversations.• Record all DNAs (Did Not Arrive).• Always give and record consultation follow-up advice.• Detect and act upon abnormal results.• Choose computer software that encourages good records.• Give greatest weight to the more serious diagnosis.• Litigation harms doctor and patient alike - some patients just want an

apology, which can go a long way - but, they may still sue.• Response letters to complaints need to be written extremely carefully.• Consult your medical insurance company - they are the experts.• Remember, we all make mistakes; that's why we pay insurance.

And finally……………….

Today I do not want to be a doctor

Dr Glen Colquhoun

• Today I do not want to be a doctor - no one is getting any better.• Those who were well are sick again and those who were sick are sicker.• The dying think that they will live and the healthy think they are dying.• Someone has taken too many pills. Someone has not taken enough.• A woman is losing her husband. A husband is losing his wife.• The lame want to walk. The blind want to drive.• The deaf are making too much noise. • The depressed are not making enough.• The asthmatics are smoking.• The alcoholics are drinking.• The diabetics are eating chocolate.• The mad are beginning to make sense.• Everybody’s cholesterol is high.• Disease will not listen to me - even when I shake my fist.