Negligence is a legal concept. It does not mean neglect or wilful misconduct, but a failure to attain a reasonable standard of care. Any doctor can make an error of judgment. Some are legally defensible, others are not; what is important is whether the management can be defended by a responsible body of professional opinion.
In cases of negligence, the only remedy available in law is financial compensation: damages are paid to restore claimants to the position they would have been in had the negligent act not occurred. Before damages are payable, however, the claimant must prove all three of the following:
- They were owed a duty of care.
- There was a breach of that duty of care.
- Damage was suffered as a result.
Adopt accepted practice
Accepted practice is easy to define in some areas – prescribing in accordance with the recommendations of the South African Medicines Formulary is an obvious example. Increasingly, proper practice has to be based on evidence (ie, determined by systematic methods based on literature review, critical appraisal, multidisciplinary consultation and grading of recommendations by strength of evidence). See Appendix 1 for links to evidence-based websites.
Accepted methods of investigation and treatment are often described by clinical guidelines. Such evidence-based guidelines improve the quality of clinical decisions, help replace outdated practices, and provide benchmarks for clinical audit.
Guidelines are not directives, so in theory you may choose to exercise your discretion by deciding not to follow a particular guideline. In reality, however, you should only deviate from the accepted practice embodied in the guidelines if you have very good reasons for doing so. If your judgment is called into question, you will have to demonstrate why you were justified in not complying with the guidelines.
Conversely, if you follow respectable clinical guidelines and base your decisions on evidence, you will be in a very strong position if a complaint is made against you.
Act within your limitations
Although you are not expected to be infallible, the law expects that, as a doctor, you exercise a reasonable standard of skill and care at all times.
- As a general rule, you should not undertake tasks that are beyond your competence. The exception is if you find yourself in a situation where a patient will die or sustain severe and permanent injury without urgent intervention and you are the only (or most experienced) doctor available.
- Ideally, you should ensure that sufficient help and equipment are available for any procedure you undertake, and for the management of all foreseeable complications.
Keep up to date
Under the terms of your registration with the Health Professions Council, you are obliged to continually update your professional knowledge and skills. This usually means enrolling in some kind of formal learning programme on a subject relevant to your clinical practice in order to earn credits. It also requires that you keep abreast of developments in your field by regular reading of relevant journals and published guidelines.
Successful CPD depends to a great extent on planning, and good planning is predicated on an accurate assessment of learning needs. Before you can assess your learning needs, however, you need to identify them – something that’s not always that easy to do because it means finding out what you don’t know you don’t know or, as Maslow put it, your unconscious incompetence.
Abraham Maslow published his model of the four stages of learning back in the 1940s [see page 27], and it’s still widely employed by educationists. It’s a simple model – two axes (unconscious—conscious and incompetent—competent) give rise to a matrix comprising four quadrants, as illustrated below). In many respects, getting from the first stage – unconscious incompetence – to the second stage – conscious incompetence – is the most difficult transition because, by definition, we’re not conscious of the deficits in our competence.
Many of these deficits will naturally advance into the realm of conscious incompetence as you come face to face with them in your daily practice, or because you’re made aware of new information through reading journals and talking to colleagues. Others, though, are harder to uncover and you will need to employ various techniques to identify your shortcomings. The best ways to find out where you’re falling short are either to measure your performance against an accepted standard (auditing), or to get feedback from colleagues and patients. Sources of information might be formal or informal, planned or unplanned, and although some might arise from solitary reflection, most require some form of feedback from colleagues, patients or others.
Take responsibility for your health
If you have an illness, disability or infection that may put patients at risk, you must seek medical advice and, if necessary, stop or reduce your practice. The safety of your patients should be your prime concern.
If you do not already have one, register with a family doctor; apart from simple and obvious conditions such as common colds or sore throats, you should not rely on self-diagnosis and treatment. Your GP will be able to provide a better sense of perspective than you can, and if he/she thinks you are not fit to work you should respect his/her opinion.
Be fully conversant with any equipment you use – ensure that it has been properly serviced and is in working order before beginning any procedure.
This advice applies not only to complex machinery and software, but also to simple components such as tubing. Several deaths have been reported due to foreign bodies occluding anaesthetic tubing, for example. Had the patency of the tubing been properly checked beforehand, the deaths could have been avoided.
Other things to consider are:
- ensuring that you have replacements, such as batteries and bulbs, available if needed
- the cleanliness of the equipment or instrument
- whether you know what to do if a crucial piece of equipment – such as a dialysis machine or a ventilator – fails and whether emergency equipment (eg, a mask and bag) is available
- knowing the whereabouts of back-up equipment
- whether you’ve been taught how to use the equipment and know how to run operational checks or troubleshoot common problems.
In the context of multidisciplinary and cross-agency teamwork, it can be difficult to distinguish between delegation and shared responsibility. The question is really one of accountability and clarity about who is responsible for each aspect of a patient’s care.
As a member of a clinical team, you will have ongoing responsibilities for the care of patients, some of which you might delegate to staff who do not belong to a registered professional organisation. In these circumstances you would be held accountable for the actions of those staff members, so you must satisfy yourself that they are competent to take on the duties you are delegating to them and supervise them if necessary.
The matter is a little different when you delegate to a professional colleague. You would not be held accountable for the actions of another registered professional, but you would still be expected to delegate appropriately (ie, to a colleague with relevant training and skills) and to have provided them with sufficient information to carry out the task assigned to them.
If a colleague delegates tasks to you, make sure that you are properly briefed and if the task lies outside your expertise, say so.
Keep comprehensive up-to-date records
The medical record is an essential component of patient care. A good medical record will contain all the information one clinician needs to take over where another left off – or, to put it another way, to allow a clinician to reconstruct a consultation or patient contact without relying on memory. It should, therefore, provide all the information a newcomer to the care team would need to know about a patient and their treatment plan.
If you ever need to alter the notes at a later date, make it clear that you are introducing a retrospective correction. Any alteration to paper records should be clearly dated and signed. Do not obliterate the original entry – just run a line through it. Never try to rewrite notes at a later date. Do not delete entries in computer records, but add annotations to them if necessary (and date and initial them if the software doesn’t do it automatically).
Do not write derogatory statements or criticisms about patients, colleagues or others; be as objective and factual as you can in making your notes. If you record any history provided by someone other than the patient, make sure you include the source – eg, “Has been ‘confused lately’ (daughter)”. Remember, patients have a legal right of access to their records, which can also be scrutinised by the courts.
Though they were written with the UK health service in mind, you may nevertheless find the national standards published by the Academy of Royal Medical Colleges useful (see Box 11). Many of these standards are concerned with the structure of case files, and aimed at hospital medical records administration, but the standards concerned with content provide valuable guidance for doctors. Part 2 – A Clinician’s Guide to Record Standards contains detailed advice about what to document when clerking, handing over care and writing discharge summaries. It can be downloaded from the Royal College of Physicians website.
Box 11: Selected Generic Record Keeping Standards
- Every page in the medical record should include the patient’s name, identification number ... and location in the hospital.
- Every entry in the medical record should be dated, timed (24 hour clock), legible and signed by the person making the entry. The name and designation of the person making the entry should be legibly printed against their signature. Deletions and alterations should be countersigned, dated and timed.
- Entries to the medical record should be made as soon as possible after the event to be documented (eg. change in clinical state, ward round, investigation) and before the relevant staff member goes off duty. If there is a delay, the time of the event and the delay should be recorded.
- Every entry in the medical record should identify the most senior healthcare professional present (who is responsible for decision making) at the time the entry is made.
- An entry should be made in the medical record whenever a patient is seen by a doctor. When there is no entry in the hospital record for more than four (4) days for acute medical care or seven (7) days for long-stay continuing care, the next entry should explain why.
- The discharge record/discharge summary should be commenced at the time a patient is admitted to hospital.
- Advance Decisions to Refuse Treatment, Consent, Cardio-Pulmonary Resuscitation decisions must be clearly recorded in the medical record. In circumstances where the patient is not the decision maker, that person should be identified.
(Academy of Medical Royal Colleges, A Clinician’s Guide to Record Standards – Part 2: Standards for the Structure and Content of Medical Records and Communications when Patients are Admitted to Hospital (2008), p4.)
Be aware of the potential for medication errors
Medication errors account for a high level of complaints, claims and adverse incidents. The World Health Organisation estimates that patients suffer adverse events related to the administration of medication in approximately 1% of all hospital admissions. The underlying causes include:10
- “inadequate knowledge of patients and their clinical conditions
- inadequate knowledge of the medications
- calculation errors
- illegible handwriting on the prescriptions
- confusion regarding the name of the medication
- poor history taking.”
Many of these can be avoided by being conscious of the most risky aspects of prescribing, calculating doses and administering drugs. A good starting point for reducing your own risk of committing a prescribing error is to follow the guidance set out by the Department of Health (see Box 12).
Box 12: Avoiding prescribing errors
“Drugs should be prescribed only when they are necessary for treatment following a clear diagnosis. Not all patients or conditions need a prescription for drugs. In certain conditions simple advice and non-drug treatment may be more suitable.
“In all cases carefully consider the expected benefit of a prescribed medication against potential risks. This is important during pregnancy where the risk to both mother and fetus must be considered.
“All prescriptions should:
- be written legibly in ink by the prescriber with the full name and address of the patient, and signed with the date on the prescription form
- have contact details of the prescriber eg. name and telephone number.”
“In all prescription writing the following should be noted:
- the name of the drug or preparation should be written in full using the generic name and
- no abbreviations should be used due to the risk of misinterpretation. Avoid the Greek mu: write mcg as an abbreviation for micrograms
- Avoid unnecessary use of decimal points and only use where decimal points are unavoidable. A zero should be written in front of the decimal point where there is no other figure, eg. 2 mg not 2.0 mg or 0.5 ml and not .5 ml
- Frequency. Avoid Greek and Roman frequency abbreviations which cause considerable confusion – qid, qod, tds, tid, etc. Instead either state the frequency in terms of hours (eg. 8 hourly) or times per day in numerals (eg. 3x/d)
- State the treatment regimen in full:
- drug name and strength
- dose or dosage
- dose frequency
- duration of treatment eg. amoxicillin 250 mg 8 hourly for 5 days
- In the case of “as required” a minimum dose interval should be specified, eg. every 4 hours as required
- Most monthly outpatient prescriptions for chronic medication are for 28 days; check that the patient will be able to access a repeat before the 28 days are up.
- After writing a script, check that you have stated the dose, dose units, route, frequency, and duration for each item. Consider whether the number of items is too great to be practical for the patient, and check that there are no redundant items or potentially important drug interactions. Check that the prescription is dated and that the patient’s name and folder number are on the prescription card. Only then sign the prescription, and as well as signing provide some other way for the pharmacy staff to identify you if there are problems (print your name, use a stamp, or use a prescriber number from your institution’s pharmacy).”
Department of Health, Standard Treatment Guidelines and Essential Drugs List for South Africa (2006), pp. xvii-xviii.)