Opinion on...

IN 2011 MDDUS logged over 500 new claims of negligence against members. Certainly few things can make a clinician’s heart sink more than receiving a letter of claim from solicitors acting on behalf of a patient – even if such a letter has been expected.

A phone call to an MDDUS adviser will do much to ease any panic – and this is oft en the first step in a sometimes long process to establish the most reasonable outcome for all parties involved in a case. The MDDUS adviser will usually ask for a copy of the letter and an initial response from the member in answer to the allegations. In order to weigh up the best approach going forward the adviser or an MDDUS lawyer will then oft en commission a report or reports from external clinical experts.

One of the UK’s most experienced medico-legal experts when it comes to general practice is Dr Malcolm Campbell. I chatted with him recently one afternoon at the MDDUS offices in Glasgow, just a short walk from the Department of General Practice at the University of Glasgow where Malcolm acts as a senior clinical lecturer.

Malcolm has been doing medico-legal work for over 15 years, mainly for the GMC as a lead performance assessor in fitness to practise investigations but he also provides expert reports in civil cases. In addition he remains a GP partner at the same practice in Kirkintilloch near Glasgow where he started his career in 1975.

When I ask Malcolm why he writes medico-legal reports on top of what seems an already impossibly busy professional life, his reply is surprising: “To be honest, I don’t do it because I want to save humanity or because I feel sorry for doctors who get sued. I feel just as sorry for patients who get badly treated. It’s really because I find it incredibly interesting.”

Part of the interest and challenge that comes with generating clinical opinions in medical negligence cases is the analytical skill needed to get at the truth in a sometimes tangled and contradictory narrative.

“It requires a certain turn of mind,” says Malcolm. “A desire to get to the bottom of things, Hercule Poirot type stuff almost. Looking at what happened, developing a story, and then coming to a conclusion and being right. And if you are not right at least you learn something.”

No page unturned

Malcolm’s job begins with the receipt of an oft en thick bundle of paper (or the electronic equivalent) including details of the allegation from claimant solicitors, a copy of the GP’s response, the patient records, both primary and secondary care, and any other relevant legal documents or previously commissioned expert reports.

“You get all this material and then you sit down and read it – every single page,” says Malcolm. “There are usually bits of information all over the place. You have the GP notes, what the doctor says, what the plaintiff says, and you try to put all that together initially to produce a chronology, a narrative. I always do that first without really bothering myself with the issues.”

“Sometimes the information will be conflicting. The patient might say: ‘I went to see my doctor 26 times during that year complaining of my sore toe’ and the medical records will have no reference at all to a sore toe. So what you do is set down both versions of the story – completely impartially and then you gradually work your way through to the end.”

Negligence cases rarely involve just one doctor so the expert report must also consider the actions of other primary and secondary care physicians involved, as well as support staff , such as nurses or ambulance personnel. In the end though the primary focus will be on the actions of the MDDUS member or members. Having set down the various narrative versions, Malcolm must then examine all the evidence and determine if the GP’s actions constitute medical negligence.

The legal test of this in Scottish civil law comes from the landmark case of Hunter v Hanley, in which Lord President Clyde wrote that in order to prove liability in cases of clinical negligence “it must be established that the course the doctor adopted is one which no professional man of ordinary skill would have taken if he had been acting with ordinary care”. A similar test (Bolam) applies in England.

Malcolm further explains: “Basically it means if you do something which no competent doctor would do if they were acting with reasonable care, then you fail the test. On the other hand, if you do what many competent doctors would have done then you don’t fail the test. Th at doesn’t mean you get to make a mistake, because obviously by defi nition a competent doctor acting with reasonable care wouldn’t make a mistake.”

Armed with evidence from the case documents and the criteria set out in legal decisions such as Hunter v Hanley, Malcolm must then form an opinion on whether the MDDUS member acted with “ordinary care”. To do this he must examine the literature – guidelines produced by NICE or SIGN or other professional bodies, as well as any relevant academic papers.

“Guidelines are just that – guidelines,” says Malcolm. “Not all are obligatory by any means. So if the doctor has done something that looks to me to be way outside of normal practice I will still check to make sure there aren’t any papers out there that say this is a really good idea.”

Causation

Breach of duty of care is only one element to consider. Most negligence cases also hinge on the issue of causation – that is, did the error cause actual harm to the patient or did it make a pre-existing situation worse.

Malcolm gives the example: “If I go and see my doctor tomorrow coughing up blood and he says – ‘don’t worry about it, you’ll be fine’ and then a week later I go and see one of the other doctors and he gets me X-rayed and it shows lung cancer. Then the first doctor has undoubtedly failed in his duty of care but nothing has changed. The diagnosis was made a week later, and a week later does not matter to the prognosis.”

“The big legal argument tends to go around what difference did it make – the causation argument,” says Malcolm, and this is most oft en addressed by secondary care experts – say a neurologist or oncologist – more qualified to judge the consequences of issues such as delayed or missed diagnosis.

Impartial advice

The product of all this deliberation is a draft medical report, and sometimes it does not make for comfortable reading. Says Malcolm: “There’s oft en a lot of injured innocence when you put in the sentence ‘in this particular situation the doctor fell below the standard expected of a responsible GP acting with reasonable care’. They immediately respond: ‘he’s saying I’m a bad doctor’. What it usually means is that they just made a mistake.”

The member will be asked to respond to the report but more oft en than not it is only factual details that change, says Malcolm. “I would very rarely end up changing the conclusions.”

The final expert report provides MDDUS advisers and lawyers a reasoned argument on how best to approach a case in consultation with the member, either to further dispute the allegations or to negotiate a settlement, most oft en with no admission of liability. Only rarely will a case go all the way to court.

One common misconception is that an expert commissioned by MDDUS is somehow meant to act as an advocate for the member in his report. “Experts are completely impartial – they hate everybody!” says Malcolm. Joking aside, he is keen to emphasise that he is paid to provide only an opinion.

“Truth and justice – that’s the name of the game. So if a case does come to court, you only have to speak the truth, which is easier to remember apart from anything else.”

Profile by Jim Killgore, editor of MDDUS Summons