Good practice protocols and clear communication are key to avoiding the simple errors that can lead to claims of clinical negligence, as Dr Gerard Panting explains
A significant number of clinical negligence claims stem from simple misunderstandings or administrative errors that have resulted in serious harm to patients.
Cases of failure to refer account for a significant proportion of the Medical Protection Society's workload relating to claims against GPs. In a recent analysis of 1000 claims against GPs, 631 were categorised as a failure or delay in diagnosis, or wrong diagnosis. Of these, 140 related to patients with malignant tumours in whom delayed treatment or referral was a central allegation of negligence.
Case history 1
A young patient consulted her GP because she was concerned that her eyesight had deteriorated over a period of months. The GP was unable to detect any abnormality and suggested that she saw an optician. The optician detected bitemporal visual field defects and wrote to the GP suggesting that she be referred urgently for further investigation.
Unfortunately, the optician's letter was filed in the patient's notes without any action being taken – an error that only came to light months later. The patient was then urgently referred and diagnosed as having a pituitary tumour, which was then treated. However, the delay had resulted in further irreversible deterioration in her vision.
The claim that followed was clearly indefensible – the only question to resolve was how much better the patient's eyesight would have been had there been no delay, and how that should be reflected in financial terms.
Case history 2
A middle-aged man saw an optician who, diagnosing early cataracts, wrote to the man's GP suggesting that he should be referred. The GP received the letter, noted its contents and put it into his pending tray so that he could discuss referral with the patient, who he assumed would make an appointment in the near future.
In fact, the patient telephoned about 6 weeks later to ask what had been done, and was furious when he discovered that no referral had yet been made. He complained. The GP's response was straightforward: he said that there were a number of hospitals he could refer the patient to and he wanted to discuss the options with the patient before taking action.
The patient did not accept that explanation and pressed for an independent professional review, but his request was rejected.
The GP's duty of care
Had the second of these two cases been a clinical negligence claim, would the doctor have been able to mount a successful defence?
As in any negligence claim, there are three questions to be answered:
- Was there a duty of care?
- Was there a breach of that duty?
- Did the patient suffer harm as a result of any identified shortfall in care?
In this case there was a clear duty of care because the man was a patient on the GP's list.
Demonstrating a breach of duty depends upon proving that the doctor failed to act in accordance with a practice accepted as proper by a responsible body of GPs.
The Medical Protection Society would have defended this GP's actions vigorously. He delayed referral only to canvass the patient's views to ensure that the arrangements suited him. The situation was not urgent and, consequently, it was reasonable to wait to see the patient first.
One might argue that the GP should have contacted the patient, but that does not render the doctor's position indefensible as the situation was not urgent and therefore did not warrant further action being taken.
Even if there was a deficiency in care, in this case the patient came to no harm. If there is no harm there can be no compensation, and on that ground alone the claim would fail.
Dealing with test results
Another common basis for clinical negligence claims involves alleged failure to take appropriate action after receiving abnormal test results.
Suppose, for example, that a patient undergoes several blood tests, including a full blood count. Quite unexpectedly, the patient is found to be anaemic. What action should the GP then take?
The answer will depend upon the degree of risk the patient is exposed to. It all comes down to what is reasonable in the circumstances. Mild anaemia in a patient expected to return for review within a week will not require any action before the appointment.
At the other end of the scale, a haemoglobin level of 5 g per 100 ml in a patient who has been told that there is almost certainly nothing to worry about and who has no follow-up appointment clearly requires urgent action.
Failure to contact the patient urgently and to institute proper management could not be supported by a responsible body of medical opinion because the patient was clearly at risk. Any patient coming to harm in such circumstances would have a well-founded claim.
In some cases, the onus may be put on the patient to telephone his or her GP for the results. However, if the results indicate the need to take action, it is clearly unacceptable to wait for the patient to contact the surgery.
Cervical smear results are among those results most frequently filed away when abnormal. The situation may be complicated if a healthcare professional other than the GP does the test, but the results are nevertheless reported to the surgery. Who bears responsibility in this situation?
Although the person who does the test should review the result, and if necessary take action, once a GP becomes aware of an abnormality, to do nothing is, at best, inept.
The GP's surgery should have in place a system of checks to ensure that any further management required is in hand.
Problems arising from long-term medication are another recurrent basis for claims presented to the Medical Protection Society. Where regular monitoring is required, it is imperative to have a system in place to ensure that results are reviewed before providing the patient's standard repeat prescription. Obviously, maintenance treatment cannot simply be stopped, but the prescribed dose might be modified to allow time to review the patient's management.
Care shared between hospital and general practice presents further opportunities for things to go wrong. In one case, a patient continued to receive methotrexate for an autoimmune condition from his GP for 7 years after he had defaulted from hospital outpatient follow-up. The problem only came to light when he was admitted to hospital with renal failure.
The GP's position was indefensible because he had supplied regular repeat prescriptions without seeing the patient or receiving any communication from the hospital.
When a patient fails to attend the surgery
Another area of claims concerns patients who, apparently reassured by their doctor, simply do not return for further consultations even though their condition has not improved. Prominent in this group are those with malignant conditions, in particular breast and gastrointestinal cancers.
These claims may result from a loose follow-up arrangement, such as the doctor saying, "Come back and see me if things aren't getting any better", or from no follow-up arrangements at all. The absence of a clear-cut arrangement seriously undermines the doctor's defence, as does failure to record follow-up advice in the notes.
Having administrative procedures in place for repeat prescribing and practice protocols for follow-up will not prevent all these problems. However, it is striking to see just how many claims against GPs are the result of simple errors that cause serious harm to patients.