Problems in clinical management

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

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.

Clinical practice

A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art

The courts assess standards of clinical practice by the “Bolam test” (in England and Wales, though similar standards exist in Scotland and Northern Ireland). Bolam sustained fractures during electroconvulsive therapy carried out in the early 1950s.

In the subsequent court case, experts for the claimant and defendant could not agree on whether Mr Bolam should have been given a muscle relaxant. The judge set out the following test in his summing up to the jury:

“A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art … putting it the other way round, a doctor is not negligent if he is acting in accordance with such a practice, merely because there is a body of opinion that takes a contrary view.”⁶

Adopt accepted practice

Accepted practice is easy to define in some areas – prescribing in accordance with the recommendations of the British National 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). Evidence-based information concerning practical aspects of a wide range of conditions can be found on the internet (see Appendix 1).

[Guidelines] should be regarded as aids to, not substitutes for, clinical judgment

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, provide a focus for audit of clinical practice, and provide benchmarks for clinical governance.

Of course, guidelines are guidance, not instructions or commands. They should be regarded as aids to, not substitutes for, clinical judgment and must be interpreted sensibly and applied with discretion. If you decide not to follow the guidelines and 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 doctors are not expected to be infallible, the law requires that they exercise a reasonable standard of skill and care at all times.

• Never undertake a task that is beyond your competence – when in doubt, seek help from a more experienced colleague.
• Ensure you have sufficient help and equipment available for any procedure you undertake, and for the management of all foreseeable complications.

Check equipment

Be fully conversant with any equipment you use – ensure that it has been properly serviced and is in working order before beginning any procedure.

Delegate appropriately

When delegating duties to others, be sure that they are competent to undertake the task and are fully aware of all relevant information concerning the patient. Make sure that they are able to call on competent back-up if it is needed.

Keep comprehensive up-to-date records

A good medical record should provide all the information a newcomer to the care team would need to know about a patient and their treatment plan

The medical record is an essential component of patient care. It should contain sufficient information to “identify the patient, support the diagnosis, justify the treatment, document the course and results, and promote continuity of care among
healthcare providers”.⁷ A good medical record, 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 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.