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The Fall of Clinical Negligence - Dr Mark Burgin

13/12/16. Dr. Mark Burgin BM BCh (oxon) MRCGP explains how the rise of clinical negligence in the UK will lead to a fall in the numbers of medical mistakes.

Helen Blundell of APIL asks why is it that time after time, experienced lawyers point to the repeated mistakes made by the NHS and nothing seems to change?

There is a correlation between the rise of personal injury claims (50% increase from 2006 to 2011) and the fall of deaths on roads (from 3,450 in 2001 to 1,713 in 2013).

Even the most skeptical observer would accept that that the large amounts of money paid out in compensation has had some effect on car manufacturers.

Will the current exponential rise of clinical negligence activity and the cost of defending those claims lead to a similar fall in the numbers of medical accidents?

I believe that if those involved in clinical negligence use their experience to develop metrics of performance then it will be clearer what has gone wrong and what needs to change.

Analysing v measuring

Systems analysis has been applied to many other areas of safety, most notably aircraft safety, but has been less successful in preventing medical mistakes.

Systems analysis has confirmed that issues such as continuity of care and gatekeeping both reduce costs and improve performance of a health system.

Observational studies by Jarman and Starfield have shown that the key to an effective health service is the humble generalist and their use of the biopsychosocial model.

It has proved more difficult to determine how to measure the effectiveness of individual consultations and which parts of the biopsychosocial model are important, beyond avoiding complaints.

Clinical Negligence claims provide a superior alternative to complaints as a source of evidence to study the metrics of how consultations succeed and fail.

These metrics have the potential to transform both the analysis of breach in clinical negligence and the analysis of performance of individual practitioners.

There is a curious side effect, as lawyers can better pinpoint what has gone wrong the health care professionals will be empowered to stop these problems from occurring in the first place.

Resistance to change

Doctors delay adoption of new ideas as many ideas are discarded shortly after they become popular when problems arise.

Clinical Negligence claims against generalist doctors are often restricted by Bolam unless NICE guidance prevents a large range of opinion.

Most NICE guidelines are disease rather than process specific and therefore less relevant for primary care than secondary care.

NICE guideline [NG56] published September 2016 on multimorbidity in contrast to previous guidelines is relevant to primary care and addresses the common problem of over-treatment of those with complex disease.

NG56 creates a new metric of ‘an approach to care that takes account of multimorbidity’ against which health practitioner’s performance can be judged.

Although the GMC is leading the way by revising its advice on consent it is likely that any improvements in the practice of consent will be gradual and slow.

Bolitho and Montgomery have confirmed that the courts will impose legal standards in consent and appear to open the door to cases where legal standards can replace medical standards of behaviour.

Without change from within, the medical profession face a slow attrition of their independence with courts and guidelines imposing rules to combat inequity.

The future of clinical metrics

I have previously discussed The Barnsley Clinical Standards (assessment, data interpretation, patient involvement, managing red flags) as new metrics that can be used to analyse performance in the consultation.

Clinical Negligence in the past focused on whether mistakes made by practitioners were reasonable based upon a reasonable body of practitioners in the given circumstances.

There is increasing interest in the other part of the Bolam test, acts of omission where the practitioner has failed to do something that a reasonable body of practitioners would have done.

The GMC advice in Good Medical Practice confirms that at point 15 you must adequately assess the patient’s conditions and at point 21 clinical records should include relevant clinical findings.

Whilst this advice and the associated case law gives support to the claimant whose records do not confirm that they were assessed by the professional there is a grey area when the assessment appears only deficient.

The public believes that where the records indicate that a consultation was unsafe and led to harm then compensation should be paid.

Conclusions

There is an exponential rise in claims for medical accidents which reflects both the large number of medical accidents and previous relatively low number of claims.

Of the possible options available to manage this rise the best value for money would appear to be researching how medical accidents can be prevented.

Metrics are being developed and will transform clinical negligence and have the potential to be used to improve medical practice.

Those working in clinical negligence and those in clinical practice share a common need to understand how the biopsychosocial model works.

To me these changes are an opportunity to bring together the best minds in law and medicine to cooperate for the good of the patient health.

Doctor Mark Burgin, BM BCh (oxon) MRCGP is on the General Practitioner Specialist Register.
Dr. Burgin can be contacted This email address is being protected from spambots. You need JavaScript enabled to view it. and 0845 331 3304 website drmarkburgin.co.uk

Dr Mark Burgin 08 March 2016 How to Analyse Clinical Records www.expertwitnessjournal.co.uk

References

Annual road fatalities - Publications - GOV.UK

General medical council - Good medical practice (2013)

Shi L, Macinko J, Starfield B, et al. The relationship between primary care, income inequality, and mortality in the United States, 1980–1995. Journal of the American Board of Family Practice 2003; 16: 412–22.

Jarman B, Gault S, Alves B, et al. Explaining differences in English hospital death rates using routinely collected data. British Medical Journal 1999; 318: 1515–20.

If the NHS was an airline, we'd never dare to fly Helen Blundell www.apil.org.uk 03 Oct 2016

Image ©iStockphoto.com/J-Elgaard