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Short Notes on Contributory Negligence 2018 - Dr Mark Burgin

27/05/18. Dr. Mark Burgin BM BCh (oxon) MRCGP considers the elements that should be included in a primer for clinical negligence cases involving Contributory Negligence.

Contributory Negligence is used to allow courts to recognise that the claimant may have been partly to blame by for instance stepping into the road in front of a car.

In medical negligence the concept is more complex because the doctor’s knowledge of their patient may impose different responsibilities.

A patient who is likely not to reattend even with persisting symptoms may require clearer instructions than one who attends frequently.

The courts often refer to public interest when considering whether to make a doctor liable and this can generate some uncertainty as to outcome of a case.


Assessment

Contributory Negligence can arise in assessment where the doctor has failed to record a reasonable assessment and the claimant has failed to provide full details of their problems.

The doctor is in the position of power and in general any contributory negligence % will be small as the doctor would be aware that the assessment was poor. (1 - part 15 and 21)

I have written about the need for further research in how patients can provide written details in a standardised questionnaire to reduce the risk of missed symptoms. (2)

A patient who fails to indicate a symptom on this type of questionnaire would have a much higher contributory negligence %, in some cases the doctor would have a full defence.


Refusal of treatment

Any patient with capacity can refuse treatment but if the doctor has not recorded that the claimant has capacity and understands the issues then there is likely to be a breach in the duty of care.

Detailed records of the patient’s own words can give strong evidence for both capacity and understanding and represents best practice.

The GP remains responsible for assessing the patient’s condition even if they have refused treatment and should arrange a reasonable approach particularly with respect to symptom control.

A subsequent failure to provide reasonable cares to a patient who has refused treatment can be used as evidence that the doctor’s usual practice is deficient.


Follow up

The doctor must consider if the patient is a vulnerable person who requires different follow up and use appropriate language and written materials. (1 - part 27 and 32)

The doctor must document all relevant information about follow up in the records so that colleagues are aware and ideally share this with the patient. (1 - part 44 and 49).

A common problem is that the follow up was reasonable but the claimant attends for a different problem and the doctor does not address the first condition.

Similarly a patient who is asked to return after tests may be told that tests are normal and they do not require a further appointment by the doctor interpreting the tests.

The court may feel that a doctor should take active steps to chase up a defaulting vulnerable patient when the consequences may be serious.


Conclusions

The GMC does not clarify when a doctor can rely upon the patient returning as requested or when they remain responsible for the patient’s care when the patient leaves the surgery.

Doctors are expected to arrange reasonable follow up and correctly interpret results as they understand the likely diagnoses and are in the position of power.

Patients may be fully or partly responsible where they refuse treatment or fail to give a full history or do not attend the arranged follow up.

The primer on clinical negligence cases involving Contributory Negligence should clarify which patients are considered as vulnerable and expected responses.



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



  1. GMC 2013 good medical practice

  2. Burgin 2013 How to prevent clinical negligence with the personal health summary. www.drmarkburgin.co.uk

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