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24 November 2020

The ever-changing nature of modern medical practice means no two days are the same.  

Unfortunately, this also applies to medicolegal issues, which are unpredictable in nature and can result in anything from a claim or complaint to a Medical Council hearing or inquest. 

Your membership with Medical Protection means you can call us 24 hours a day, 7 days a week for assistance. Our team of medicolegal consultants – qualified clinicians with legal training – and clinical negligence solicitors are on hand to support you through a wide range of scenarios. Our press office is also available to handle any media intrusion on your behalf. 

What types of issues will Medical Protection assist with? 

It is almost impossible to list everything we assist members with. However, the following short case studies are just a sample from the full range of advice calls and other matters that we have supported members with over the years.  

Providing support during a regulatory investigation 

Dr H was working as a GP in a clinic when he saw a patient who had suffered a fall and had hurt her knee. Dr H examined her knee, which he noted to be swollen, and ordered an x-ray to rule out dislocation or a fracture. When the x-ray came back as normal, Dr H prescribed the patient with various analgesics for the pain and arranged a follow-up for one week’s time.  

The patient then stated that she required sick leave as she was meant to be working for the next few days. As Dr H agreed she would have difficulty in walking, Dr H issued a certificate for two days of sick leave. The patient then paid and left.  

Unfortunately, after the patient had her two days’ sick leave, she then returned to her job as a waitress and suffered another fall as her knee was still painful. She had to undergo further treatment at a hospital for this problem.  

The patient then complained to the Medical Council, alleging that Dr H should have provided her with more sick leave as she was on her feet all day as a waitress. She also alleged that she had to undergo extensive physiotherapy because of this incident, which would not have happened if Dr H had initially given the appropriate length of sick leave.  

Dr H then contacted Medical Protection after receiving a notice regarding the complaint from the Medical Council, and the Medical Protection case manager, alongside the instructed lawyer, assisted him in providing a detailed explanation of the events that took place. After taking into account the submissions made, the Medical Council decided to dismiss the complaint at the first stage and issued Dr H with a letter of advice that he should take into consideration a patient’s occupation before deciding on the length of sick leave to prescribe. Dr H was very pleased with this and implemented changes to his practice to ensure all the correct steps were taken before issuing sick leave again.  

Advice for a surgeon on a tricky mental capacity issue 

Mrs G, an elderly patient with type 2 diabetes, respiratory disease and dementia, fell during the night in the care home where she lived. Her care home called an ambulance immediately as Mrs G was in a lot of pain and was distressed by the fall. 

When Mrs G arrived at the hospital, she was assessed by the staff in the Emergency Department and an x-ray revealed a fractured neck of femur. Dr L, an orthopaedic surgeon, examined her, and was of the opinion that Mrs G needed surgery. Mrs G was distressed and confused, and Dr L believed that she lacked capacity to consent to surgery. He attempted to contact her next of kin, but he was unable to do so as they were overseas. As Mrs G lacked capacity to consent to the proposed treatment, Dr L was not sure how to proceed, so he called Medical Protection. 

Dr L was reminded of the factors to take into consideration when assessing mental capacity. It should not be assumed that the patient lacks capacity simply because she has a diagnosis of dementia. In this instance, Mrs G’s immediate family were travelling overseas on holiday and were not contactable. 

Medical Protection advised Dr L to gather as much information as possible in order to arrive at a ‘best interests’ decision regarding further treatment if Mrs G was unlikely to regain the capacity to consent. The extent of Dr L’s enquiries depended on the urgency of the treatment. If the proposed treatment was non-urgent, Dr L should continue to attempt to contact Mrs G’s family and gather information from other sources (such as staff at the care home and the GP). 

The member of staff who ultimately delivers the treatment is the decision maker, and assessments of capacity and best interests had to be carefully documented in Mrs G’s records. 

Supporting a GP through a police investigation, complaint and inquest 

Dr S, a GP, was asked to review a positive sputum culture result that seemed to indicate treatment with antibiotics was required. 

The patient was Mr J, a 48-year-old non-smoker who rarely attended the clinic, but had been seen by a GP colleague (who was on leave when the sputum culture result was received) the previous week with a productive cough. 

Dr S reviewed the records, which stated “defer antibiotic therapy until sputum culture results are available”, and decided to contact Mr J by telephone. 

Mr J explained that whilst there had been some improvement in his symptoms, he continued to have a cough productive of green sputum. Dr S explained that the results of the sputum culture suggested that antibiotic treatment may help, and prescribed amoxicillin 500 mg, three times a day. 

Unfortunately, the clinic computer system was unexpectedly down. Dr S wrote a handwritten prescription and made himself a note to record this (together with a note of his telephone conversation) on Mr J’s records when the system was back online. 

Mr J’s wife collected the prescription from the clinic shortly after Dr S’s telephone call with Mr J. 

Later that afternoon, the clinic computer system came back online, and Dr S realised that Mr J was allergic to penicillin. Dr S immediately called Mr J to prevent him from starting the antibiotics, but was informed by Mrs J that Mr J had taken his first dose of amoxicillin. It had prompted an anaphylactic reaction and an ambulance crew were in attendance. 
Unfortunately, the resuscitation attempts were unsuccessful, and Mr J passed away. 

Dr S was invited to a police interview under caution to investigate a potential criminal charge of medical manslaughter. Dr S immediately called Medical Protection and spoke to a medicolegal consultant (MLC). 

A lawyer, experienced in the field and familiar with the vulnerabilities that doctors face, was instructed by Medical Protection to represent Dr S at the police interview. Dr S was naturally distressed at this development and was provided with details of the Medical Protection counselling service at the outset. 

In advance of the police interview, the MLC and the lawyer had a conference with Dr S and prepared an anticipatory statement. At the conclusion of the police investigation, the matter was referred to the Department of Justice, but they decided not to pursue criminal charges. 

The clinic undertook a Root Cause Analysis (RCA) and the MLC, together with the lawyer, assisted Dr S in providing a statement. The RCA did identify that Dr S erred in prescribing amoxicillin, but also identified some mitigating factors (including the fact that the clinic computer system went down), and made some recommendations to minimise the risk of a similar incident in the future. 

The MLC advised Dr S to reflect on the incident and directed Dr S to educational resources (including those provided by Medical Protection) to assist with remediation. 

The family then made a complaint to the clinic and the MLC assisted Dr S with the provision of the response. 

Eighteen months after the incident, Dr S was called to give evidence at an inquest into the death of Mr J and Medical Protection instructed a barrister to individually represent Dr S. In order to prepare for the inquest, a conference with the barrister, the instructed lawyer and the MLC was arranged. In addition, the MLC involved the Medical Protection press office to assist with any potential media attention – an anticipatory press statement was prepared in advance of the inquest. 

Dr S came across well at the inquest and the coroner returned a narrative verdict referencing the fact that Mr J had died as a consequence of an anaphylactic reaction secondary to the administration of amoxicillin. The coroner indicated that whilst he had considered making recommendations to prevent further deaths, he had not chosen to do so on the basis of the remedial action taken by both the clinic and Dr S. The family were unhappy and asked the coroner to refer Dr S to the Medical Council – the coroner declined to do so, so the family referred Dr S themselves. 

A few months later, the Medical Council opened an investigation into Dr S. Medical Protection, alongside the instructed lawyers, helped Dr S to prepare a letter, which included reference to Dr S’s insight and the steps that he had taken to remediate. 

The Medical Council subsequently closed their investigation with no action (other than some advice relating to prescribing guidance), on the basis that this was an isolated incident for which Dr S had demonstrated insight and had taken appropriate steps to remediate at an early stage. 

Support for your mental health and wellbeing 

In addition to our expert medicolegal advice and support, Medical Protection provides access to a counselling service, which is provided at no extra charge as part of your membership. The service means we can support you with work-related stress, or stress that you feel could impact your practice.  

The service is entirely independent and confidential. We’re here to support you beyond cases and claims, by not only protecting your career and reputation, but your wellbeing too.