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A tiny error that goes unnoticed can lead to a devastating outcome for the patient. The surprise is how expensive that error can be if a claim is made, as Dr Catherine Thompson discovered.
Former paediatrician Dr Catherine Thomson found her perceptions of clinical negligence claims turned on their head when she joined the MDU claims team. Not least, the sheer volume of claims, the large sums involved and the effect on the doctors involved. Perhaps most surprising of all was the apparent disconnect between the gravity of the clinical error and the amount of damages awarded, as the following example highlights*.
A cardiologist saw a 49-year old businesswoman with suspected hypertension. He confirmed the diagnosis and before prescribing an ACE inhibitor, asked the patient if she was on any other medication. The patient said no. What she failed to mention was that she was regularly taking over-the-counter ibuprofen to treat back pain. She had assumed the cardiologist was only asking about prescription drugs. Reassured by her negative answer, the cardiologist properly advised the patient how to take the medication and what to do if she experienced side effects. Her GP would monitor her treatment from then on, he told the patient.
A couple of weeks later, the patient fell ill with gastroenteritis but continued to take the ACE inhibitor. Forty eight hours later, she became extremely unwell and was admitted to hospital. She was found to have suffered acute renal failure from which she did not recover.
The patient sued, alleging the consultant had been negligent in not advising her to seek medical advice if she experienced severe vomiting and diarrhoea and not warning her about taking NSAIDs. A nephrologist expert confirmed that the patient had sustained irreversible kidney damage and required long-term dialysis. The claim was eventually settled for more than £600,000 compensation for pain, suffering and loss of amenity and the patient's loss of future earnings.
Such cases typify the problems that can derail an apparently innocuous encounter with a patient and lead to a huge claim, Catherine explains. "In most cases when a doctor makes a small error of judgment, there will be no adverse outcome. But medicine is such a high stakes profession that a minor slip can have lasting consequences for both patient and doctor."
This is something that has been brought home to Catherine since joining the MDU in 2009 after several years' hospital practice in Kent where she was a consultant paediatrician with a special interest in epilepsy. But she was also fascinated by medico-legal work, taking a part-time master's degree in medical law and ethics and serving on a local ethics committee. Her MDU experience has opened her eyes to the reality of claims.
She says: "Many NHS doctors have little or no involvement in the litigation process, even when the allegations are about them. Trusts usually handle it all. When I came to the MDU I had no idea of the frequency and scale of claims. Even after four years here, I am still surprised when the bills for a claim come in."
Damages awards in England and Wales are some of the most expensive in the world and individual settlements of £5million or more are not unusual. General damages for pain, suffering and loss of amenity arising from the negligence can escalate when special damages, such as loss of earnings and the cost of care during the patient's projected life span, are added. For example, in 2011 the MDU paid one of its highest ever damages of £6.5million, for a plastic surgery claim, of which just £80,000 was for the claimant's injury. The remainder represented her potential loss of earnings.
The MDU has an excellent record in defending claims against members – 70% are resolved without a financial settlement. But if a claim cannot be defended and the member agrees to settle, Catherine and her colleagues negotiate with the claimant's lawyers to determine compensation that is fair to both parties. And then there are legal costs: even for a claim that is settled for £2-3,000, the claimant's legal fees can be as high as £50,000 or more.
The cost of settling claims goes up year by year, at a rate that far outstrips any other type of inflation. This affects the entire profession, not just the MDU. The NHS paid out more than £1bn in 2011-12, compared to £456m in 2007-8. Catherine adds: "Of course, negligently damaged patients should be compensated. But as a society we can't go on paying ever higher compensation and legal costs. The MDU has called for a cap on future care costs and loss of earnings awards, among other changes to the civil claims system."
Claims against medical members have risen sharply in the last decade. New claims notifications to the MDU increased by 20% in 2012 alone.
Catherine believes the reasons behind the increase are complex. "There is no evidence that clinical standards have slipped but maybe there is less appetite for risk than there used to be and medicine can never be a zero-risk environment. For example, in my own specialty, doctors manage complex medication that is not always licensed for use in children and this can be a particular challenge when treating neonates and very young children. Considering the numbers of patients doctors see each year, errors are actually rare and even if slight can have dreadful consequences for the patient."
A vital part of the MDU's work is to make members aware of the potential risks in everyday situations and offer preventive advice. Catherine emphasises the need for rigorous note-taking, in the interests of patient care and as evidence in the event of a claim. "Don't rely solely on your memory," she says. "You may have seen lots of patients in one day but the patient has only seen you, and the court usually trusts their recollection over yours. But if you make clear and contemporaneous notes it should be possible to demonstrate your management was of a reasonable standard."
But the profession will always be vulnerable to claims, Catherine adds. "I'm sure that, like me, members experience an uncomfortable twinge of recognition when they read some of the MDU's cautionary tales and reflect that it could easily have happened to them. The best advice I can give any doctor is to ensure they are properly indemnified. Clinical negligence is a complex area of law and certainly not something that doctors would ever want to face without the MDU's expert support and advice."
*This is a fictional case compiled from actual cases in the MDU files.
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