Problems in clinical management
Negligence is a legal concept. It does not mean neglect or wilful misconduct, but a failure to attain a reasonable standard of care. Any doctor can make an error of judgment. Some are legally defensible, others are not; what is important is whether the management can be defended by a responsible body of professional opinion.
In cases of negligence, the only remedy available in law is financial compensation: damages are paid to restore claimants to the position they would have been in had the negligent act not occurred. Before damages are payable, however, the claimant must prove all three of the following:
Some [errors] are legally defensible, others are not; what is important is whether the management can be defended by a responsible body of professional opinion
- They were owed a duty of care.
- There was a breach of that duty of care.
- Damage was suffered as a result.
Clinical practice
The test for establishing negligence in a patient’s diagnosis or treatment derives from the Dunne case,4 in which Finlay CJ set out the principles that courts have since applied when assessing the standard of care the patient received. The first of his principles captures the essentials of all the rest:
A doctor should not be considered guilty of medical negligence if other doctors of equal experience in the same specialty would have followed the same practice
“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,” adding the caveat that “a medical practitioner charged with negligence ... followed a practice which was general, and which was approved of by his colleagues of similar specialisation and skill, ... cannot escape liability if ... such practice has inherent defects which ought to be obvious to any person giving the matter due consideration.”
In other words, a doctor should not be considered guilty of medical negligence if other doctors of equal experience in the same specialty would have followed the same practice; such a practice must, however, be rational and reasonable.
Adopt accepted practice
Accepted practice is easy to define in some areas – prescribing in accordance with the recommendations of the Irish Medicines Formulary is an obvious example.
Increasingly, proper practice has to be based on evidence (ie, determined by systematic methods based on literature review, critical appraisal, multidisciplinary consultation and grading of recommendations by strength of evidence).
Evidence-based and up-to-date information concerning practical aspects of a wide range of conditions can be found on the internet (see Appendix 1).
Accepted methods of investigation and treatment are often described by clinical guidelines. Such evidence-based guidelines improve the quality of clinical decisions, help replace outdated practices, provide a focus for audit of clinical practice, and provide benchmarks for clinical governance.
Of course, guidelines are guidance, not instructions or commands. They should be regarded as aids to, not substitutes for, clinical judgment and must be interpreted sensibly and applied with discretion. If you decide not to follow the guidelines and your judgment is called into question, you will have to demonstrate why you were justified in not complying with the guidelines.
Conversely, if you follow respectable clinical guidelines and base your decisions on evidence, you will be in a very strong position if a claim is made against you.
Act within your limitations
Although you are not expected to be infallible, the law expects that, as a doctor, you exercise a reasonable standard of skill and care at all times.
- Never undertake a task that is beyond your competence – when in doubt, seek help from a more experienced colleague.
- Ensure you have sufficient help and equipment available for any procedure you undertake, and for the management of all foreseeable complications.
Box 9: Refer if necessary
“If you do not have the professional or language skills, or the necessary
facilities to provide appropriate medical care to a patient, you must refer the patient to a colleague who can meet those requirements.”
Source: Medical Council, Guide to Professional Conduct and Ethics for Registered Medical Practitioners (2009) para 12.1
Keep up to date
Make Continuing Professional Development (CPD) an integral part of your working life. This not only means keeping up to date with new treatments and technologies, but also requires self-reflection and the expansion and honing of your skills, understanding and knowledge-base.
CPD is now a mandatory requirement of registration. All registered medical practitioners are now required by the Medical Council to be registered with a Competence Assurance Scheme and to acquire at least 50 CPD credits each year.
Box 10: Defining poor performance
“Poor professional performance, in relation to a medical practitioner, means a failure by the practitioner to meet the standards of competence (whether in knowledge and skill or the application of knowledge and skill or both) that can reasonably be expected of medical practitioners practising medicine of the kind practised by the practitioner.”
Source: Medical Council, Guide to Professional Conduct and Ethics for Registered Medical Practitioners (2009), para 2.2
Take responsibility for your health
If you have an illness, disability or infection that may put your patients at risk, you must seek medical advice and, if necessary, stop or reduce your practice. The safety of your patients should be your prime concern.
Check equipment
Be fully conversant with any equipment you use – ensure that it has been properly serviced and is in working order before beginning any procedure.
Delegate appropriately
When delegating duties to others, be sure that they are competent to undertake the task and are fully aware of all relevant information concerning the patient. Make sure that they are able to call on competent back-up if it is needed.
Keep comprehensive up-to-date records
The medical record is an essential component of patient care. A good medical record will contain all the information one clinician needs to take over where another left off – or, to put it another way, to allow a clinician to reconstruct a consultation or patient contact without relying on memory. It should, therefore, provide all the information a newcomer to the care team would need to know about a patient and their treatment plan.
If may be difficult to keep a comprehensive record of patients’ medical histories if they’re liable to “shop around”, consulting a number of different GPs. If you are seeing a patient after a long gap since the last consultation, it is worth asking them if they’ve had any significant illnesses in the intervening months.
Educating patients about the importance of continuity of care – maybe in the form of a practice leaflet – is also advisable, especially for patients with chronic conditions or unresolved troublesome symptoms.
If you need to alter the notes at a later date, make it clear that you are introducing a retrospective correction. Any alteration to paper records should be clearly dated and signed. Do not obliterate the original entry – just run a line through it. Never try to rewrite notes at a later date. Do not delete entries in computer records, but add annotations to them if necessary (and date and initial them if the software doesn’t do it automatically).
Do not write derogatory statements or criticisms about patients, colleagues or others; be as objective and factual as you can in making your notes. If you record any history provided by someone other than the patient, make sure you include the source – eg, “Has been ‘confused lately’ (daughter)”.
Remember, patients have a legal right of access to their records, which can also be scrutinised by the courts.
Box 11: Medical notes
Depending on the circumstances, the medical record should include the following:
- Sufficient information at the top of each page to identify the patient.
- Results of physical examinations, including relevant history.
- Clinical findings.
- Diagnosis or provisional diagnosis.
- Treatment given or ordered.
- Complications such as drug side-effects.
- Results of investigations and action taken.
- Signed consent forms and notes on key elements of discussions with patient to obtain consent.
- Advice given to patient.
- Referrals and provision made for follow-up.
- Details of the substance of all consultations and telephone conversations.