I am pleased for this opportunity to review the cases in this edition of Casebook from a claims management perspective. I have been qualified as a solicitor for nearly 30 years and the majority of my career has been spent working with doctors.
After a few years of working with my medical colleagues, it became clear to me that lawyers and doctors often speak a different language and look at events from a very different perspective.
So having read the cases, I thought I would highlight where I see some of those key differences – and clarify those situations where a lawyer’s advice may seem difficult to understand or even illogical.
As I was reading each case I could see where the story would end before I got there. I think this was because I was seeing them as a lawyer: seeing the whole scenario unfold and not just seeing a snapshot in time. This is exactly how a judge would see a case and I think that is worth reflecting on.
As a doctor you are often dealing with a snapshot in time, and often under significant time pressure. However, it is always worth checking that in carrying out your role, you are taking the whole picture into account.
In many of the cases in this edition, this has been a failure of the doctor, which has led to cumulative errors and a chain of events leading to an adverse outcome for the patient. Often we see claims where the patient has suffered an avoidable harm because of a whole chain of events set in motion by one person failing to act appropriately, or misdiagnosing a condition. This then leads to others relying on that view, even as the picture is changing or not fitting together.
Think of stuffing an incorrect jigsaw piece into a space that is quite similar, yet when you stand back the picture is wrong and often there are missing pieces. If each doctor had looked at the whole picture that was emerging, then the chain of events would have been halted earlier and the outcome for the patient would probably have been better.
When a claim appears before a judge they see the whole picture with all the missing pieces and an adverse outcome. A judge will use the experts to inform him on medical issues and look at the expert opinion, but will apply legal tests and a layman’s view of common sense. With that in mind you will see how easy it is for them to reach a view that if someone had stood back and looked at all that had gone before, and assessed the issues objectively, the chain of events could have been stopped.
Interestingly, having had the opportunity to discuss this with my colleagues who deal with matters before the regulator, ‘reflection’ and ‘insight’ are words that are used repeatedly in that arena. Again, reflection can be the key to a successful outcome.
As a final thought I can see how some may wonder why compensation is still paid even though an eventual outcome for a patient is the same irrespective of the adverse event: “What has been caused?” you may ask. Legal causation is any pain and suffering that flows from an error, and which otherwise would not have been there. So any period of additional pain is compensatable, even if it is hours or days.
I will leave you with these thoughts and let you ponder again on the words we use and their different meanings, as you read the cases.