Over to you

MPS Response

Thank you for your observations on this case. The expert in this case did carefully consider the issue of causation, and in particular the question of the infection that developed in the knee. His opinion was that the infection would not have developed if the patient had not required early revision surgery due to the substandard index operation. He was also of the opinion that had the initial procedure been carried out appropriately, the prosthesis would not have needed revision until it failed – in approximately 15 to 20 years. The settlement in this case reflected these issues.

MPS Response

Thank you for your letter about the photograph in the January 2014 edition of Casebook. The pictures used in Casebook are not accurate representations of clinical situations, but rather to illustrate the general theme of the case report or article. We do have a notice to this effect at the foot of the Casebook contents page, although the font is rather small and might benefit from being a little more prominent.

The content of each issue of Casebook is reviewed in its final form in our layout board meetings, and these always include a number of doctors from a variety of clinical backgrounds. Whilst no comment was passed about the use of the picture in question, your comments will be a timely reminder for the board members.

MPS Response

Whilst it might seem an attractive proposition to contemplate some form of legal redress in these circumstances, there are a number of significant practical issues to consider.

Firstly, MPS experience is that nearly all complaints of this type are made by genuine complainants who have misunderstood or misinterpreted a clinically appropriate examination carried out in a reasonable and responsible manner.

The second point to consider is that as a matter of public policy, most legal systems provide some form of protection against allegations of defamation for complainants who take their concerns through appropriate channels. This is because otherwise there would be a very chilling effect on the ability of members of the public to raise concerns, particularly where a defendant may be able to access much greater resources than the complainant.

as a matter of public policy, most legal systems provide some form of protection against allegations of defamation for complainants who take their concerns through appropriate channels

Additionally, in criminal cases, the decision to prosecute rests with the prosecuting authority rather than the complainant. In England and Wales, for example, this rests with the Crown Prosecution Service, who will weigh up the issues before deciding to proceed with a case. This includes assessing whether there is sufficient evidence, whether the evidence is reliable and credible, and whether a prosecution is in the public interest.

Finally, even if there were no other hurdles, and it was possible to consider an action in an individual case, it would be an unattractive case, which would be liable to attract adverse publicity, and in the event of success, given the financial position of most complainants, a doctor (or their MDO had they agreed to undertake the matter) would be unlikely to recover their costs, let alone any damages actually awarded.

Realistically speaking therefore, it is unlikely that we will see cases of this sort being brought.

Response

Thank you for your letter, which raises a very important issue.

Generally speaking, if a chaperone is declined by the patient, and you don’t want to go ahead without one, you should clearly explain why you would like one to be present. You could also consider referring the patient to a colleague who would be willing to examine without a chaperone. However, the patient’s clinical needs must come first, and any such arrangements should not result in delays that affect the patient’s health.

The discussion about chaperones, together with the outcome, should be recorded in the medical record. If a chaperone is present, record that fact, and their identity. If the patient refuses a chaperone, make a note that the offer was made and declined.

There are often local guidelines or protocols that cover this issue, and members should make sure they are aware of these and follow them.

Readers in New Zealand can access the MPS factsheet on chaperones.