A patient can be held responsible for the harm he or she has suffered, but only if the doctor can prove every effort was made to avert it, says Dr Gerard Panting
GPs embroiled in clinical negligence claims are often bemused that their conduct appears to be the sole focus of the claim, any blame resting entirely with them and not the patient. Why, if the patient failed to follow advice, attend follow-up appointments or reappear for results, is he or she not considered culpable, at least to some extent?
In fact, claimants can be found partly or wholly responsible for harm that they have suffered. However, the courts expect the healthcare professionals involved to have made considerable efforts to warn patients about the potential consequences of their behaviour, and efforts proportionate to the potential harm to chase up patients who have defaulted from follow-up or simply not phoned for a result that is abnormal.
Consent and refusal
Competent adults are, of course, free to refuse treatment, even if doing so may result in death or some other catastrophic consequence. In cases where treatment is recommended and fully explained, but the patient declines and suffers harm as a result, the responsibility lies with the patient. However, there may still be questions about whether the patient was fully informed of the possible adverse outcome and whether appropriate alternatives, to which the patient would have agreed, were offered.
This last point is particularly important if a patient refuses treatment considered to be the only real option. The patient must still receive care that is in his or her best interests, within the limits of consent.
This problem crops up occasionally in obstetric care when a Caesarean section is recommended for a sound indication such as fetal distress but the patient refuses consent.
As the fetus has no legal rights, it is the mother’s decision alone that counts. Within the time available, the obstetricians must explain the potential consequences for both mother and child (without scaremongering) so there can be no doubt that the refusal is fully informed. If the mother still refuses, the next step is to consider the best alternative, which might be some form of instrumental delivery.
If, as a result, the baby suffers harm that would probably have been avoided by a timely Caesarean section, neither the mother nor the baby has a claim against the healthcare professionals involved. Neither does the baby have any claim against the mother, as English law does not allow an individual injured in utero to bring a claim against his or her mother. The only exception is if the injury resulted from a road traffic accident, as it is assumed that the mother would have been insured.
In general practice, a significant proportion of claims have an element of poor compliance, ranging from failure to lose weight or stop smoking through to failing to take medication or to cooperate with monitoring procedures.
The same principle applies here as in the obstetric case. It is the doctor’s job to make sure the patient knows why the treatment is recommended and what the consequences of less than wholehearted involvement in his or her own care may be.
However, if the dangers of unmonitored care outweigh the potential benefits of treatment, should the doctor carry on prescribing regardless? The answer to this inevitably depends upon the exact circumstances but it is a point which must be considered if, for example, the patient is in grave danger of lithium toxicity or of being overanticoagulated.
When patients fail to turn up for blood pressure monitoring, or similar regular reviews, the duty to warn of potential adverse consequences is not discharged by a single discussion. When the risk continues, so does the duty to warn, and even if the warning always falls on deaf ears, it must be repeated as necessary and recorded in the medical records.
When test results are received by a practice, they should be reviewed and any abnormalities identified and appropriate action taken. Exactly what is appropriate will depend on the circumstances. Trivial abnormalities where the patient is due to be seen again within a short period of time may normally be left until the next consultation. The only caveat here is if the patient does not reappear as expected; then there needs to be a mechanism for flagging up the fact that an identified abnormality requires firm action and for appropriate steps to be taken.
Unexpected and life-threatening abnormalities, for example the discovery that a patient has a haemoglobin level of 4 g per 100 ml, require urgent and determined efforts to track the patient down and secure immediate treatment. Given the real risk of death here, it would not be good enough to telephone the patient’s home and leave a message if there is no reply. Every effort must be made in these circumstances to maximise the chances of timely intervention as the patient will have no idea of the peril he or she is in.
In all legal proceedings, cases are won on the evidence and not the facts. It is therefore essential to record all these events fully in the medical records so that if there is some question over the advice provided about potential adverse effects or the endeavours made to track down a patient who is dangerously ill, the records will demonstrate how assiduously the doctor fulfilled his or her duty of care.
There are circumstances in which patients who fail to comply properly with advice can find themselves held culpable to some degree for their own injury. If a patient is found to be 50 per cent responsible, the damages awarded are reduced by half. In some areas of personal injury litigation this is relatively commonplace, for example, if a driver’s injuries are worse because he did not wear a seat belt. In clinical negligence cases it is relatively uncommon, but it can happen.
In one case, which came before the courts in 2001, the compensation award was reduced by two-thirds on the grounds of contributory negligence. The judgment recorded the following:
The Claimant sought damages in respect of a cervical smear which was wrongly evaluated by the Defendants in 1988 as being negative when it should have been noted as abnormal in showing a precancerous condition and further investigation and treatment undertaken.
In January 1997, she was suffering from heavy withdrawal bleeding and was referred to a gynaecologist. A smear was taken on 27 January and was reported as showing severe dyskaryosis and on 31 January it was reported that the finding showed cervical carcinoma at stage 3A or 3B. She then underwent radiotherapy.
The Defendants admitted breach of duty in misreporting the 1988 cervical smear.
The court accepted that the onset of the full blown condition usually takes 7-10 years (so the condition reached in 1997 was consistent with the stage reached but not seen in 1988) and the condition could, in all probability, have been treated similarly over the years following 1988, probably up until 1995.
The significant issues between the parties arise from the fact that the Claimant had no cervical smear test between 1988 and 1997 despite the well documented urgings of the doctors in her general practice on some seven occasions and two letters from the FHSA in 1991 and again in 1994 to attend for cervical screening. The Defendants contended that if the Claimant had responded to these promptings, a further test would have indicated the CIN condition and appropriate treatment given. They said that her failure or refusal to attend for screening amounted amongst other things to contributory negligence on her part.
The court held that in 1991 and 1994 it must have been brought home to the Claimant in particular that there was a need for testing and that her failure to participate carried certain risks. To fail to attend once in 1991 was blameworthy and showed some unreasonable care for her own health and welfare; to fail to respond again in 1994 was doubly so against a background of increasingly strong warnings from her GP.
In the result, I consider the proper apportionment is to hold the Claimant two-thirds responsible; she is therefore entitled to one-third of the damages and interest agreed.
Cases like this are uncommon but perhaps it shows the beginning of a trend which many doctors will welcome.