Posts Tagged ‘Litigation’

Which doctors are the most likely to be sued?

By Dr Rupert Lee, clinical risk manager at the MDU - 7th December 2010 5:56 pm

Medicine has never been shy of embracing new and exciting technologies that can improve patient care. But is it possible to gaze into the crystal ball to predict whether those carrying out cutting-edge procedures are more likely to be sued?

One thing is clear - the risk of litigation is not necessarily related to clinical risk or even clinical competence.

A tried and tested procedure may carry relatively little clinical risk, but patients who do not experience the outcome they hoped for may be more likely to be critical of the care they have received or question the actions or competence of their doctor.

At the MDU, we find this is particularly the case if the patient was not given enough information during the consent process, regardless of whether the procedure was actually done well.

Ironically, procedures that carry a relatively high risk of complications, such as certain types of vascular surgery or major colorectal surgery, are less likely to result in the surgeon being sued than procedures with a lower clinical risk, such as privately-funded breast augmentation or refractive eye surgery, carried out for cosmetic or convenience purposes rather than for an underlying medical problem.

In some situations it seems that as a new procedure becomes established and safer the risk of being sued might actually increase, as patients’ expectations of a good outcome are raised.

It can often be years after an allegedly negligent incident before there is any sign of a claim so potential risks might not become apparent straight away. As a result, it is important for us to try to spot problems that are emerging so that we can provide advice and risk management recommendations to our members.

A good example of this is the move over the last 20 years or so from open to laparoscopic surgery. During the 1990s the MDU saw a rise in claims and complaints about laparoscopic surgery and by studying these we could see that perforation of viscera and blood vessel damage were issues, as were reports of retained instruments. This allowed us to warn members doing laparoscopic surgery of the dangers, highlighting the importance of appropriate training and experience and the need for stringent instrument checks.

It seems that as technological advances and mind-boggling new techniques are introduced, like robotic surgery which can potentially allow the surgeon to operate on a patient remotely from the other side of the world, unanticipated new problems may arise. We’ll continue to keep a watching brief.

A longer version of this article is available in the latest edition of the MDU’s Journal.

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Breast cancer patients to sue hospital over screening

BBC Health - 25th November 2009 10:14 am

Seven women are taking legal action against a hospital where they were wrongly given the all-clear for breast cancer following screening errors.

It emerged 18 women were misdiagnosed after a study of hundreds of mammograms carried out at Accrington Victoria Community Hospital in East Lancashire.

The NHS trust said screen mistakes by one radiologist failed to detect the disease. He has not worked since April.

Seven patients have now instructed solicitors to fight for compensation.

Pannone Solicitors said it was representing the women to pursue legal action on the grounds of medical negligence.

Christine Holt from the firm, said the compensation claims could take a “matter of months or years” to settle.

She added: “It very much depends whether liability is admitted by the hospital and when we can come to an agreement as to the impact on each individual woman affected.”

In September, East Lancashire Hospitals NHS Trust said it was “not possible” to say if the women’s prognosis was affected.

The affected women were among 355 cases reviewed in an independent study after all of the radiologist’s breast cancer screenings over the past three years at the Lancashire hospital were examined.

Read more at BBC Health.  

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Interview: Dr Christine Tomkins, MDU chief executive

By Mike Broad - 14th October 2009 12:58 pm

The MDU's Dr Christine Tomkins

The MDU's Dr Christine Tomkins

Hospital Dr invites Dr Christine Tomkins, chief executive of the MDU, to answer 12 questions and complete a half written sentence:

1. What is the biggest challenge the profession faces?

From a medico-legal perspective, the biggest challenge is the increasing level of regulation faced by doctors.

After a single incident, a doctor can be suspended and/or disciplined by their employer; questioned at a Coroner’s Inquest and in a Care Quality Commission investigation; investigated by the police and face a criminal trial; called to appear before the GMC at a Fitness to Practice hearing; subjected to a civil claim for alleged clinical negligence; and face the glare of the media. Obviously doctors who are not performing or who may be a danger to patients need to be identified and any concerns addressed; but the existing systems are more than enough to achieve this. Anything more is out of all proportion.

2. When did you last laugh?

About five minutes ago, when my medical student son phoned to ask me to send him a preposterous list of things he had forgotten to take back with him to university.

3. Which person influenced you the most as a doctor and why?

Donald Longson, a consultant physician at Manchester Royal Infirmary and the dean of clinical studies at Manchester Medical School. I did my pre-registration medical house job with him at Manchester Royal Infirmary and was lucky enough to have him as a friend and mentor until his death in 2002. He was wonderfully clever and perceptive, as well as funny and kind. His patients loved him, as did his colleagues and friends. He was a perfect example of an exceptional doctor and exceptional human being.

4. When were you most in danger?

A horse I was riding reared and fell on me a few years ago. I had a very narrow escape.

5. What do you hope to achieve in this role?

To drag professional indemnity into the 21st century! In most other EU countries, insurance for doctors is compulsory or the norm, and in the UK other healthcare practitioners, such as optometrists, all require a professional indemnity insurance policy so the medical profession is out of step.

Discretionary indemnity for clinical negligence claims may have served doctors well in the 19th and 20th centuries but times have changed and it’s not unusual to see compensation awards between £3 million to £4 million. A contract of insurance, and the security that successful negligence claims that come within the policy will be paid, is indisputably in the interests of patients and of doctors.

The MDU is the only medical defence organisation to provide members with insurance. This means there is still a substantial number of the UK’s doctors not covered by insurance if they are sued. With discretionary indemnity, there is no guarantee that patients who are harmed by doctors’ negligence will be compensated.

6. What is your favourite film?

To Kill A Mockingbird

7. Is the medical profession over regulated?

The MDU has repeatedly spoken out against new tiers of regulation which we believe are unnecessary and likely to be time-consuming for the profession. We see no need for the changes being brought in and strongly object to the suggestion there is a regulation gap. The medical profession is already held accountable in more ways than other professions. If anything, there is too much regulation.

8. What is your guiltiest pleasure?

Not telling!

9. How do we tackle our culture of litigation in the NHS?

If a patient has been negligently treated it is right that they be compensated. However, our evidence shows that claimants’ legal costs are excessive, often far higher than the compensation itself. We have campaigned for fairness and proportionality in claimants’ solicitors fees.

We don’t believe defendants should pay success fees in clinical negligence cases and after the event insurance should be abolished if conditional fee arrangements are in place. We would also like to see fixed hourly rates for claimants’ solicitors.

10. What was your most embarrassing professional moment? 

There have been a few. I blush to remember when, as a junior doctor after a long spell on-call, I fell asleep while taking a history from a patient. Fortunately I don’t think he noticed or he was too polite to say so. 

11. What has been your greatest success?

Being appointed chief executive of the MDU, the UK’s oldest and largest medical defence organisation and being the only qualified doctor leading a medical defence organisation.

12. Will the new NHS complaints system benefit both doctors and patients?

In general ‘yes’. The new procedure has just two stages and we are pleased to see greater emphasis on local resolution, as our experience is that the majority of complaints are resolved quickly, often by providing a clear explanation and a sincere apology, when appropriate. We also support the emphasis on using complaints to identify where systems need to be implemented to help prevent mistakes happening again.

On the negative side, the new procedures allow complaints to be made direct to a trust and only notified to the provider with the consent of the complainant. This means it is possible that doctors may not even be told and this means they cannot respond or address concerns.

Finish this sentence: Andy Burnham is…

…an Evertonian, so he will be much happier now than he was on the first day of the season!

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NHS trusts turn to ‘no win, no fee’ approach on fraud

BBC Health - 8th October 2009 10:28 am

The NHS is turning to no win, no fee legal representation - despite being a persistent critic of the practice.

The health service has spent the last few years complaining the no win, no fee culture has led to a rise in costs incurred in medical negligence cases.

But the NHS Counter Fraud Service is now embracing the system after reaching an agreement with a law firm in a bid to recoup more money lost to fraud.

About £6m a year is returned to the NHS following legal action against fraudsters - although the true value of the crime is much higher. Fraud cases can run into hundreds of thousands of pounds with some of the biggest crimes involving companies with NHS contracts for things such as cleaning, catering and buying, incorrectly billing for work and health workers, such as GPs, pharmacists and dentists, falsifying charge sheets.

Patient groups accused the NHS of double standards.

Half of the medical negligence cases the NHS deals with now are brought on a no win, no fee basis whereby lawyers get paid only if they win the case, which some believe encourages more legal actions.

Nonetheless, the Fraud Service, which supports individual trusts in bringing action, believes the agreement with law firm Capsticks will help the service recoup money.

Read more at BBC Health.

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Keep solicitors out of coroners’ inquests

By Paul Thorpe - 28th July 2009 1:18 pm

I had my first experience of an aggressive inquest this week. A sad situation where an ill lady broke her arm, went home but then developed complications that ultimately led to her death.

The unexpected part for me was that the family turned up with a solicitor, who proceeded to cross examine myself, the GP and the hospital staff involved very closely. They used lines of questioning that inevitably implied that this was all the fault of the medical services and had we been more vigilant, the lady would have survived. An uncomfortable and distressing allegation for any doctor.

We were not informed that legal eagles (or should I say vultures?) would be present, and therefore had no opportunity to put our own questions, or have assistance with our defence. Happily for us, but unhappily for the poor family, the coroner commented that had the patient or her family sought help from their GP and the hospital earlier, the patient may well have lived, and came to a verdict that was close to being uncomfortably critical of the ‘friends and family’ of the patient. I’m sure this was an outcome that their solicitor didn’t warn them was a possibility when engaging their services.

Why do we feel that solicitors are a good way of finding out what happened when a relative dies? We have a robust and functioning complaints service, that requires an in depth analysis of any particular case. We have the coroner - who will not fight shy of criticising any lapses in care they find in an inquest. We have audit and mortality/morbidity systems in hospitals and, as a profession, doctors are actually quite good at trying to find where things could have been done better.

Introducing an articulate shark simply seems to me to ramp up the costs, and increase the distress for all. I’d like to know, in percentage terms, how often solicitors are actually successful in getting any cash for a family or patient who alleges negligence.

We seem to see fairly regular ‘fishing’ letters in the NHS. While a quick review of the notes and a medical report usually sort them out, it’s all extra work. I’d also like to know, in percentage terms, what proportion of the cash involved in any claim - costs as well as award - goes to the patient, and how much to the lawyer?

There’s no doubt high lawyers’ fees can damage NHS budgets. In a recent case solicitors E Rex Makin put in a huge claim to the NHS while acting on behalf of parents involved in the Alder Hey organ (or should I say histology slide) retention scandal. They claimed £4,479,957.06 (don’t forget the 6p guys), probably expecting the somewhat naïve NHS to simply roll over and cough up. Well, good luck to them, the NHS Litigation Authority challenged the claim and - guess what - after negotiation it was reduced to £430,000. Yes, that’s right, £4,049,957 (and 6p) less than the original claim.

Next time I ask for a pay rise, I’ll remember to hike it by a factor of 10 and reduce it in negotiation - or perhaps I’ll don a sharp suit, become a solicitor and start chasing ambulances…

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