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Dr Sharmala Moodley, deputy head of claims at the MDU, examines clinical negligence claims against MDU cardiology members in their private practice and offers advice for managing risk in this specialty.
Medical negligence claims in cardiology are relatively uncommon compared with other specialties, although that is no comfort to a cardiologist who is facing a claim.
In this analysis, we examined 67 claims against MDU cardiology members that were either settled or defended successfully over a 10-year period. Some of the cases were statute barred - that is, the claimant failed to bring the claim within the three-year time limit imposed by the statute of limitations. The three years run from either the date of incident or the date that the patient became aware that harm had resulted from clinical treatment, which may be many years after the incident. There is no time limit for a claim to be brought if the claimant is considered to be mentally incompetent in the eyes of the law.
We have represented members in cases where the claimant brought their action many years after the date of the incident. In some cases, the member had been entirely unaware of any damage to the patient at the time of the incident. The oldest case in this series arose from a patient who developed a stroke following a failure to anticoagulate appropriately. The incident took place in 1992 and was not notified until eight years later. This case was settled four years after it was notified - 12 years after the incident had occurred.
Once a claim is notified it can take many years to reach a conclusion. The MDU's experience is that this can be a significant cause of anxiety to the clinician involved, which is why we always allocate a named claims handler to support the clinician throughout the claims process. The longest-running case in this analysis took eight years from the time of notification.
In total, 18% (12/67) of the claims analysed were settled. The level of compensation paid to the claimant varied between £50,000 and £2.7million. Compensation is paid with the aim of returning the patient to the position that they would have been in had the negligence not occurred. If the injury suffered is such that the person cannot return to work and needs a significant level of care, considerable damages may be awarded. In this analysis, the highest amount was awarded to a patient who suffered a stroke following an angiogram. The level of the award reflected compensation for the patient's large loss of earnings as it was claimed that because of his disability he could not return to his high-earning job.
Individual damages awards are rising year on year in all specialties. Compensation does not necessarily reflect the gravity of the alleged negligence, but rather the costs involved in restoring the patient to the position they would have been in had the negligence not occurred. Examples include payments made to two patients who suffered strokes, one following the insertion of a pacemaker and the second after an angiogram. In the first case £660,000 was paid to the patient because of care needs. The other case, referred to above, settled for £2.7 million because of loss of earnings although this patient was less disabled following the stroke than the first patient.
The 10 highest awards for damages in the cases examined averaged just over £500,000 each. The claims included complications post-angiography and -angioplasty, treatment of coronary artery disease, pacemaker problems, anticoagulation complications and a failure to diagnose hypertrophic cardiomyopathy.
The lowest payment for damages was £50,000 for a patient who suffered an oesophageal tear following a transoesophageal echocardiogram.
When a claim is settled, we also pay the claimant's legal costs, which can be considerable. The highest costs paid by the MDU were £170,000 for the claim in which the damages of £2.7 million were paid. The level of costs paid often reflects the complexity of the claim itself, but this is not always the case, and costs can outstrip damages by as much as 10 times.
If, having been awarded compensation for clinical negligence, a claimant then complains to the GMC as well, the cost of defending a member's reputation and career following a single incident mounts up financially. In our experience, the average legal cost incurred in defending a GMC hearing is in excess of £50,000, and can be much higher.
The chart above shows the most common types of problems for which claims have been received.
The majority of claims were brought following allegations of a failure to assess, make a diagnosis and treat appropriately. This group included patients who alleged failure to assess suitability for procedures such as angiography and coronary bypass. Others claimed that there was a failure to make a diagnosis or a delayed diagnosis of conditions such as endocarditis and atherosclerosis. Claims were also notified by patients who alleged that the treatment they received for hypertension, angina and valve disease was inadequate. There were also cases where the claimant alleged that test results such as ECGs and angiograms were negligently interpreted.
It was alleged that negligence caused the patient's death in 14 of the cases notified. In eight claims, it was alleged that the negligence resulted in the patient suffering a stroke and in three cases that the patient suffered a myocardial infarction as a result of mistreatment.
There was also a minority of claims in which the main allegations were unrelated to clinical care, such as disputes over payment in cases where the outcome was not to the patient's satisfaction, and delays in referrals.
Consent featured as an allegation in four of the claims. The allegation of a lack of informed consent was, however, in each case just one of several allegations. Of these claims only one was settled and this involved ill-informed consent to the insertion of a biventricular pacemaker for treatment of atrial fibrillation. The patient subsequently developed congestive cardiac failure.
Consent issues in claims often arise when a patient alleges that they were not warned of a recognised complication of the procedure. It is important to document fully, if possible, the discussions that take place between cardiologist and patient before the procedure. It can also be helpful in defending claims relating to consent issues if the patient has been given a relevant information leaflet, and that this is documented in the medical records. Depending on the type of procedure, it may be appropriate to have more than one consultation before the procedure takes place to allow the patient more time to consider the risks.
The worst possible outcome for any practitioner is the death of a patient from alleged negligence. Just over 20% (14/67) of the claims were reported following a patient's death. Not all of these claims were following a procedure. Two cases involved a failure to diagnose malignancy. One case involved the death of a patient as a result of cerebral haemorrhage due to a failure to diagnose a Berry aneurysm. In five cases it was alleged there was inadequate investigation and a failure to treat the patient either with medication or with a procedure, which directly resulted in the patient's death.
Overall, 79% of claims involving patient deaths were successfully defended and only three out of the 14 were settled. These involved death following inadequate treatment of coronary artery disease, benign prognosis for apical hypertrophic cardiomyopathy and a patient who suffered a large pericardial effusion following angioplasty, resulting in cardiac arrest and death. The highest level of damages was £342,000 in the hypertrophic cardiomyopathy case.
Drug errors give rise to a relatively high proportion of medico-legal problems with which the MDU assists doctors, but are rare in cardiology. Our data revealed only five notifications, none of which resulted in a settled claim. One case involved the administration of an intravenous drug as a bolus rather than an infusion, resulting in local damage to the surrounding tissue. Two concerned adverse reactions to drugs, one of which resulted in death. One case involved a prescription of an ototoxic drug resulting in the patient suffering from a disturbance of balance.
The administration of amoxicillin to patients with a penicillin allergy is an uncommon mistake, but one that continues to result in claims and for this reason is worth highlighting.
There were eight cases in total where the patient suffered a stroke as a result of alleged negligence. Three were settled by the MDU on behalf of cardiologist members. In one case the allegations related to failure to anticoagulate a patient following a pacemaker insertion. Two cases involved patients who had undergone angiograms. Very serious adverse outcomes do occasionally occur and patients should be offered relevant information in order to provide informed consent. GMC guidance states that a patient should be given the information they want or need about the potential risks and burdens of a procedure and that doctors should answer the patient's questions honestly and as fully as the patient wishes.
Dr Sharmala Moodley MB BCh BAO MFFLM LRCP&SI
Deputy head of claims
This article originally appeared in the printed version of the April 2014 MDU journal entitled "At the heart of things"
This page was correct at publication on . Any guidance is intended as general guidance for members only. If you are a member and need specific advice relating to your own circumstances, please contact one of our advisers.