Negligence and patient safety. Mark Gagan

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1 Negligence and patient safety Mark Gagan

2 Intended Learning outcomes Following this presentation the participant should be able to define accountability, negligence and the triad of negligence Determine,using cases specified if there is a possible charge of negligence to answer Discuss changes in the law regarding The Mental Capacity Act 2005, The mixing of medicines legislation and the law on assisted suicide as it applies to Healthcare professionals since the 2009 guidance from the CPS.

negligence to answer Discuss changes in the law regarding The Mental Capacity Act 2005, The mixing of medicines

3 Negligence-Accountability not only having to answer for an action when something goes wrong but is a continuous process of monitoring how a nurse/healthcare professional performs professionally. The responsibility differs in different situations but there is a need to be aware that one is constantly responsible and therefore constantly accountable Tschudin (2007)

4 Negligence-Accountability-the NMC view Accountability is integral to professional practice. Nurses and midwives make judgements in a wide variety of circumstances..and use their professional knowledge,judgement and skills to make a decision on evidence for best practice and in the patient s best interests NMC (2008)

Nurses and midwives make judgements in a wide variety of circumstances.

5 4 arenas of Accountability The patient The law of the land-civil and criminal The regulatory authority the healthcare practitioner is registered with The employer Dimond (2008)

6 Negligence-the law of Tort Occasionally injuries might occur as a result of the effects of medications or poor prescribing The right to redress depends on the relationship the patient has with the prescriber For the prescriber the need to have indemnity insurance is vital

to redress depends on the relationship the patient has with the

7 Negligence-the law of Tort Negligence in law means a failure to do some act which a reasonable man in the circumstances would do, or the doing of some act which a reasonable man in the circumstances would not do: and if that failure or the doing of some act results in injury,then there is a cause of action McNair J Bolam v Friern HMC [1957]

reasonable man in the circumstances would not do: and if that failure or the doing of

8 Negligence-the triad of negligence To prove negligence the claimant must prove on the balance of probability that- The defendant owed them a duty of care The defendant was in breach of that duty and therefore careless The harm the claimant suffered was a result of that carelessness Brazier and Cave (2007)

care The defendant was in breach of that duty and therefore careless The

9 Negligence-the duty of care A non-medical prescriber enters into a duty of care as soon as they engage in any treatment with a patient including Establishing a diagnosis Giving any treatment advice The duty continues as long as the patient is being treated

with a patient including Establishing a diagnosis Giving any

10 Negligence-the standard of care Once the duty of care has been established the next step is to evaluate the standard of care given by the healthcare professional It is traditionally tested using the Bolam test

11 Negligence-the Bolam Test The doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art Bolam v Friern HMC [1957]

practice accepted as proper by a responsible body of

12 Negligence-the Bolam test The test is the standard of the ordinary skilled man professing to have that special skill.a man need not possess the highest skill it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising in that particular art Bolam v Friern HMC [1957]

a man need not possess the highest skill it is sufficient if he exercises

13 Negligence- the Bolitho test.. in cases where..despite a body of professional opinion sanctioning a defendant s conduct, the defendant can properly be held liable for negligence if the opinion is not capable of withstanding logical analysis, the judge can hold the view that the body of opinion is not reasonable nor responsible Bolitho v City and Hackney Health Authority [1998]

properly be held liable for negligence if the opinion is not capable of withstanding logical

14 Negligence-the novice non-medical prescriber Two cases illustrate the use of novice practitioner as a defence to the charge of negligence Nettleship v Weston [1971] Wilsher v Essex Area Health Authority [1987]

defence to the charge of negligence Nettleship v

15 Negligence-res ipsa loquitor Res ipsa loquitor- a legal term meaning the facts speak for themselves Res ipsa loquitor and the case of the District Nurse who was helping out

16 Negligence and prescription writing Dwyer v Roderick [1983] involved Migril with a massively over prescribed dosage The dispensing pharmacist did not recognise the error A 2 nd prescriber compounded the original error with disastrous effects Damages of 100,000 awarded against GP and pharmacist

did not recognise the error A 2 nd prescriber compounded the original

17 Negligence and prescription writing Prendergast v Sam and Dee Ltd [1989] inappropriate medication dispensed with extreme consequences for the patient Both GP and pharmacist held liable

18 Negligence and dispensing/labelling errors In 2009 a pharmacist dispensed propanolol instead of prednisilone (these being prescribed for patient with exacerbation of COPD) with the instruction that 8 tablets be taken daily The patient collapsed after following the instructions and later died in hospital

exacerbation of COPD) with the instruction that 8 tablets be taken daily

19 Negligence and patient safety Reported drug errors have increased from 36,335 in 2005 to 86,085 in 2007 including: 37 deaths 63 cases of severe harm 200 patients every month require action to counteract errors made with medications NPSA (2009)

37 deaths 63 cases of severe harm 200 patients every month

20 Negligence and patient safety Medication errors are defined as any incident where there has been an error in the process of prescribing,dispensing,preparing administering, monitoring or providing medicines advice regardless of whether any harm occurred or was possible NPSA Safety in Doses Improving the use of medicines in the NHS (2009)

administering, monitoring or providing medicines advice regardless of whether any

21 Negligence and patient safety 72,482 medication incidents were reported as occurring between 01 January 2007 and 31 st December 2007 Acute care highest reporting -76% Primary care next highest -14% Mental Health third highest - 9% NPSA (2009)

22 Negligence and patient safety 100 medication incidents in 2007 that caused death and severe harm 41% caused by errors in drug administration 32% by prescribing errors Types of medication causing most serious harm included cardiovascular,anti-infective, opioid, anti coagulant and anti platelet medications NPSA (2009)

23 Negligence and patient safety Phenytoin 1g loading dose prescribed then maintenance dose 1 g twice daily on Friday Five 1 g doses given over the weekend- a pharmacist screened the regime on Sunday but did not query the dosage 2 nd pharmacist spotted the error on Tuesday and cancelled the dosage the patient died the same day

24 Negligence and patient safety Enoxaprin 120mg given to a patient with a GI bleed instead of a patient with a similar sounding surname The patient who received the erroneous medication re-bled and died the next day NPSA (2009)

25 Negligence and patient safety Patient admitted with infected foot ulcer and cellulitis. At 1500 hrs SHO noted 1200hrs antibiotic medication not given and IV fluids had been stopped. SHO requested 1200 hrs dose be given immediately and fluids restarted. Neither of these occurred.sho rechecked at 1630-still not done -patient b/p 77/40, tachycardia,septic-patient admitted to ICU died later that night. Reason for not giving antibiotic? Nurses too busy.npsa (2009)

26 Negligence and patient safety A patient was given Diamorphine 5mg s/c at 08:45 hrs. Drug prescribed was Morphine Sulphate 5mg. Two registered nurses checked the prescription and decided that they were the same drug.staff nurse became aware of the error when speaking to ward pharmacist at 09:15 hrs.patient died at 10:07 NPSA (2009)

27 Negligence and patient safety A patient was prescribed Digoxin 62.5micrograms but on 27 th January 250micrograms were dispensed instead.he took the tablets and after a few days felt unwell.a family member noted the discrepancy on 12 th February.GP examined the patient and told him to withhold the next dose.the patient collapsed and died in hospital. NPSA (2009)

28 Changes in law Mental Capacity Act (2005) Lasting Power of Attorney and Court Appointed Deputies Advanced Directives (2005) MHRA- Mixing of Medicines (2009) Assisted Suicide (2009)

29 References Brazier M and Cave E 2007 Medicine,patients and the law (4 th ed) LONDON Penguin publishing Dimond B 2008 Legal Aspects of Nursing HARLOW Pearson Education publishers National Patient Safety Agency 2009: Safety in Doses London NPSA Reporting and Learning Service Nursing and Midwifery Council 2009:The Code standards of conduct,performance and ethics LONDON NMC publishing

30 References Tschudin V cited in Tingle J 2004 Accountability in nursing and midwifery (2 nd ed- Tiley S and Watson R eds) OXFORD Blackwell publishing

ACCOUNTABILITY IN CLINICAL PRACTICE: LITIGATION AND THE NON-MEDICAL PRESCRIBER

ACCOUNTABILITY IN CLINICAL PRACTICE: LITIGATION AND THE NON-MEDICAL PRESCRIBER presented to Allied Healthcare Professionals On 1 April 2008 By Timothy Willitts Cobden House Chambers 19 Quay Street Manchester