Medicolegal Problems Facing Breast Radiologists: How to Avoid Them

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1 Medicolegal Problems Facing Breast Radiologists: How to Avoid Them Dr Philip Zack Medicolegal Adviser Brighton - British Society of Breast Radiology Conference 10/11/2014

2 Total number of reported CNST claims by specialty (since April 1995) Data from NHSLA Factsheet 3

3 Total value of reported CNST claims by specialty Data from NHSLA Factsheet 3

4 Radiology Consultant Private Practice Claims Notified By Cause Claims notified: Claims Notified : Radiology Factor Involved % of Claims WRONG DIAGNOSIS 46% MISINTERPRETATION OF RADIOGRAPH 44% MRI SCAN 29% INACCURATE REPORT 15% DELAYED DIAGNOSIS 14% ULTRASOUND 14% DEATH 13% CT SCAN 10% Note that the factors shown above are not mutually exclusive (e.g. a claim involving both wrong diagnosis and Postoperative Complication would count twice)

5 Breast Radiology Problems MDU 'Mammography' Cases * All Specialities (n = 26) Radiology (n = 11) Disciplinary 2 1 Claim 13 (50%) 9 (82%) GMC 6 2 Complaint 8 1 *will not include NHS Claims

6 Breast Radiology Problems MDU 'Mammography' Cases Radiology (n = 11) Failure to diagnose br ca on screening 6 Failure to perform biopsy 2 Procedure on wrong breast 1 Other 2

7 Multiple Jeopardy Civil Court Liability in negligence Criminal conviction Criminal Court Disciplinary procedures under MHPS NCAS assessment Exclusion/Dismissal Referral to GMC Trust Investigation Clinical incident NHS Complaints Procedure Local resolution Health Service Ombudsman GMC hearing Coroner's inquest Verdict on death Restrictions on practice Erasure from medical register

8 Complaints: Drafting a response for the Trust Timely response; typed; identify your position and role Detailed report of the part you played Factual chronology of events Specify which details are based on the contemporaneous notes, your recollection of events or; your usual practice in the given situation. Respond to every concern Say sorry where appropriate Write in the first person and avoid use of jargon or medical terms

9 The NHS Complaints Regulations 2009 Stage 1- Local Resolution NHS Trusts are responsible bodies Chief Executive is usually the responsible person Emphasis on full and transparent investigation +/- significant event review analysis Written statements often sought from individuals Acknowledge complaint within 3 working days No time limits for providing full written response Offering a meeting usually good practice

10 Stage 2 The Parliamentary and Health Service Ombudsman Ombudsman can consider the subject of the complaint and grievances about the administration of the complaints procedure itself Within 12 months Initial screening process Ombudsman will consider all relevant correspondence including clinical records and may obtain independent professional advice If Ombudsman does investigate then individuals are usually interviewed and a draft report produced Final report sent to CE for action on any recommendations made, copy to Secretary of State and published (anonymised) on website.

11 Compensation Act 2006 An apology, an offer of treatment or other redress, shall not of itself amount to an admission of negligence or breach of statutory duty

12 Principles of Good Complaint Handling Getting it right Being customer focused Being open and accountable Acting fairly and proportionately Putting things right Seeking continuous improvement Parliamentary and Health Service Ombudsman 2008

13 What do patients want? Explanation To feel heard Apology Improvements to the service Willingness to right wrongs Ownership Not Denial/trivialisation Blame Excuses Multiple procedural stages

14 How not to respond to a complaint Panic Seek to blame colleagues Seek to blame the patient Try to amend to alter records

15 Clinical negligence claims In order to succeed, a claimant must establish (on the balance of probabilities) that: The defendant owed him a duty of care (Duty) and There was a breach of that duty (Breach) and Harm followed as a result (Causation)

16 Claims timescales Limitation period 3 years from the date of the incident or the date of knowledge Special groups: - Children = 21 st birthday - No limitation for patients with significant mental impairment

17 Clinical negligence claims Duty In most clinical situations this is obvious, as the doctorpatient relationship is recognised at law as one which creates a duty. No legal duty of doctor to offer assistance to a stranger (F v West Berkshire 1989), but GMC imposes an ethical duty (Good Medical Practice para 26)

18 Clinical negligence claims Breach Breach of the duty means failure to act at the minimum standard expected. Expected standard (Bolam v Friern Hospital management Committee 1957) established Bolam Test : practice accepted as proper by a responsible body of medical men skilled in that particular art Modified by Bolitho v City and Hackney Health Authority (1998) court can reject illogical medical opinions

19 How Much Information to give Patients (the law) Risks - Bolam Test BUT - open to the Court to decide that warning of a particular risk was so obviously necessary that it would be negligent not to, even if a responsible body of practitioners would not Sidaway v Board of Governors Bethlem Royal Hospital [1985] Duty to inform of significant risk that would affect the judgment of a reasonable patient Pearce v United Bristol Healthcare NHS Trust [1998]

20 Cheshire v Afshar [2004] UKHL 41 Case: Patient operated on without error, but surgeon failed to mention small (1-2%) risk of serious complication, which arose. Patient claimed that if warned of the risk, she would not have had the operation. Following Chester v Afshar, it is advisable that healthcare professionals give information about all significant possible adverse outcomes and make a record of the information given. Reference guide to consent for examination or treatment. (DoH; 2009)

21 Consent: Patients and doctors making decisions together (GMC 2008) 9. You must give patients the information they want or need about: a. the diagnosis and prognosis b. any uncertainties about the diagnosis or prognosis, including options for further investigations c. options for treating or managing the condition, including the option not to treat d. the purpose of any proposed investigation or treatment and what it will involve e. the potential benefits, risks and burdens, and the likelihood of success, for each option; this should include information, if available, about whether the benefits or risks are affected by which organisation or doctor is chosen to provide care f. whether a proposed investigation or treatment is part of a research programme or is an innovative treatment designed specifically for their benefit

22 Consent: Patients and doctors making decisions together (GMC 2008) g. the people who will be mainly responsible for and involved in their care, what their roles are, and to what extent students may be involved h. their right to refuse to take part in teaching or research i. their right to seek a second opinion j. any bills they will have to pay k. any conflicts of interest that you, or your organisation, may have l. any treatments that you believe have greater potential benefit for the patient than those you or your organisation can offer.

23 Clinical negligence claims Causation Even if a breach of duty is proven, the claimant must also show that but for the breach the damage would not have occurred. For example in Chester v Afshar, the claimant had to show that but for the failure to warn, she would not have had the operation (then), and so would not have suffered the complication (then).

24 Clinical negligence claims Causation In Barnet v Cheslea and Westimster Hosptal Management Committee [1969] a patient with arsenic poisoning was sent home without examination (breach), but would have died anyway (so no causation) May not be straightforward: Wilsher v Essex Area Health Authority [1998] a premature baby suffered retinopathy, but five separate breaches were identified, leading five possible chains of causation, so the claimant could not show one was a substantial cause.

25 Clinical negligence claims Causation Remoteness For want of a nail the shoe was lost. For want of a shoe the horse was lost. For want of a horse the rider was lost. For want of a rider the message was lost. For want of a message the battle was lost. For want of a battle the kingdom was lost. And all for the want of a horseshoe nail. (Anon)

26 Clinical negligence claims Causation Remoteness The Wagon Mound (1961) case Case: A ship in dock was having welding work done, when sparks from the torch fell onto oily rags in the water, and set neighbouring ships on fire. Legal principle: The privy council ruled that causation was limited if the cause and effect were so remote that the damage suffered was not reasonably foreseeable at the time of the breach.

27 Outcome of claims notified to the MDU 70% of all medical claims notified to the MDU are successfully rebutted. Less than 2% of all claims notified proceed to trial. If the matter does proceed to trial then 50% are won at trial.

28 Membership t e membership@themdu.com Advisory t e advisory@themdu.com Website

29 MDU Services Limited (MDUSL) is authorised and regulated by the Financial Conduct Authority for insurance mediation and consumer credit activities only. MDUSL is an agent for The Medical Defence Union Limited (MDU). MDU is not an insurance company. The benefits of MDU membership are all discretionary and are subject to the Memorandum and Articles of Association. MDU Services Limited, registered in England Registered Office: 230 Blackfriars Road, London SE1 8PJ.