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MPS membership vs state indemnity

Being a member of MPS offers many benefits. Dr Gordon McDavid, medicolegal adviser, looks at the key areas where the state leaves off but MPS can pick up

When it comes to professional protection, most doctors recognise the value in having arrangements in place in case something goes wrong. However, some of those who are members of MPS in addition to having state indemnity do not use the many resources offered by MPS to help in everyday situations, even before a complaint or claim is made.

The Clinical Indemnity Scheme1 (CIS) handles medical negligence claims in the public sector, and its focus is on ensuring patients have access to compensation. However, the results of an adverse incident can carry other risks for health professionals.

CIS indemnity is limited in that it does not necessarily extend to assistance for disciplinary processes, inquests or Garda or Medical Council investigations. Therefore, those state doctors who do not make alternative arrangements may find themselves vulnerable in any forum other than a claim.

The benefits of membership

MPS membership goes beyond state protection provided by the CIS. In 2013, 400 doctors were referred to the Medical Council. Those doctors who did not have MPS membership faced the potential of having to deal with these situations without specialist medicolegal representation or assistance. It is also important to know that if you are working as a private practitioner, the CIS won’t cover you for the financial consequences of a claim for clinical negligence.

Although the financial cost of clinical negligence accounts for the majority of our expenditure, most of our caseload is concerned with assisting members with other medicolegal and ethical issues.

As an MPS member, you have access to medicolegal support and assistance that includes:

  • Telephone advice 24/7
  • Specialist legal advice and representation (for situations not supported by the CIS)
  • Disciplinary processes
  • Handling complaints
  • Coroner’s report writing
  • Inquest preparation
  • Media and press relations
  • Garda investigations arising from the provision of clinical care
  • Medical Council investigations
  • Good Samaritan acts.

The following case shows how MPS indemnity goes above the support offered by the state:

Dr K was working in the A&E department of a busy hospital on a particularly demanding Saturday night when a patient, Mr O, arrived in a semiconscious state. Mr O was well-known to the department; his medical notes revealed a history of alcohol abuse following years of hardship. This was not the first time Mr O had arrived at A&E following a binge and he was usually kept in to sleep it off. It was a busy evening and Dr K was pushed for time. History-taking was difficult as Mr O seemed very sleepy and incoherent, but the sweet smell of imbibed alcohol was enough for Dr K to dismiss his symptoms as simply the effects of excessive alcohol consumption.

An examination did nothing to change Dr K’s mind. Bloods were taken and sent to the lab and an entry was made in the nursing notes for the results to be followed up later. Dr K then took Mr O to a quiet corner to sleep it off and continued to attend to other patients. Unfortunately, the next morning Mr O was found dead.

Everyone in the department was shocked to hear of the regular attender’s death but worse was to come when his bloods were reviewed and it was noted that his blood glucose had been 33mmol/l with a high potassium level. When Dr K had assumed Mr O was drunk, he was actually in ketoacidosis, meaning his death that night was probably preventable.

What happens next...

SCENARIO 1: If Dr K had CIS indemnity only

On realising that he had to justify his actions to the hospital, his seniors and also to Mr O’s family, Dr K had no-one to turn to. He spoke to his employer but they made it clear that they would protect their own interests if a claim was made. To make matters worse, by the time the hospital’s internal review came round six months later, Mr O’s medical notes had gone missing. This left Dr K extremely vulnerable, as he had no contemporaneous notes to back up his actions, and there was the fact that the blood results had not been reviewed.

As expected, the patient’s family brought a claim against the hospital. The hospital referred the claim, via the CIS, to the State Claims Agency who set about investigating how to manage the claim, but Dr K – without the medical notes – could not defend his actions.

The family also made a complaint about Dr K to the Medical Council, who commenced an investigation. Dr K was not entitled to advice or support with this process through the CIS.

The story attracted some media interest and once Dr K’s local community found out that he was being investigated by the Medical Council, he lost the trust of many of his patients. The damage to his reputation – and subsequently, his livelihood – was difficult to repair.

SCENARIO 2: If Dr K had MPS membership

When Dr K was told that Mr O had died, he immediately phoned MPS’s 24-hour helpline for advice. A medicolegal adviser recommended that Dr K write up a draft report of the circumstances leading to the patient’s death and asked him to forward this and a copy of Mr O’s anonymised medical notes to MPS for review.

MPS then investigated the hospital protocol for managing patients in A&E and prepared to help with the inquest and hospital investigation. When the internal review came around, MPS provided the hearing with a copy of the notes (even though the originals had subsequently gone missing) and the full report written by Dr K immediately after the event had occurred. In defending Dr K, MPS pointed out he had attempted to take a history, and conducted a clinical examination. Dr K’s recollection was that he had wanted to do bedside testing for glucose but the necessary sticks were out of stock, so he had been forced to send away blood for testing instead.

The investigation of hospital protocols in A&E also revealed there was no set protocol for following up blood results and, although Dr K had recorded that he had taken blood, the nurses had failed to follow up on it, despite a request being made in the notes.

While the hospital used state indemnity to defend its actions when the claim was made, Dr K used his MPS membership to assist him, on the basis that he had written a report of his recollection of the event immediately, and could refer back to the nursing notes and the patient’s past medical notes. MPS also commissioned an independent expert to offer an opinion who agreed that Dr K’s diagnosis at the time was understandable and he had taken reasonable steps to try and exclude alternatives.

A complaint to the Medical Council was still made by the family; however, MPS guided Dr K through the process. MPS instructed solicitors to represent Dr K and a meeting was arranged at their offices to go through the case with Dr K. Thereafter, MPS’s solicitors drafted a letter on Dr K’s behalf to the Medical Council. This letter served to convince the Medical Council’s Preliminary Proceeding Committee that there was no prima facie case to answer, and the complaint was closed with no further action.

The MPS press office was also on hand to help Dr K deal with the media intrusion. A statement was compiled to be issued to the press, which helped Dr K retain his reputation and meant the story was not over-sensationalised.

On closing the case with Dr K, MPS reminded him of the importance of taking detailed notes in case he had to justify his actions again. Dr K took heed of this advice, and booked a place on one of MPS’s risk management workshops to develop his skills further.

Contact us to find out how you can make the most of your membership with MPS:

www.medicalprotection.org, call us on 1800 509 441 or email us atMember.help@mps.org.uk.

Additional reading

References

  1. State Claims Agency, Clinical Indemnity Scheme.
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