The joint meeting of the Liverpool Society of Anaesthetics and Section of Anaesthesia of Manchester Medical Society was formally opened by Dr Christine Bell, President of the LSA. She welcomed all delegates and introduced the programme and first speaker.
‘Medical-legal Update’ - Dr C.C.Evans, Past-President, MDU.
Dr Evans started his talk by describing his background and how he became involved in the Medical Defence Union, of which he latterly became President. He said that to err is to be human and inevitably all doctors make mistakes. He started to describe the procedures which, since the introduction of crown indemnity, had been usually been used for doctors in private practice. Almost all cases are either dismissed or settled out of court. However, about 1% of cases do get to the first stage, which is the Civil Court, where personal injury and clinical negligence cases are heard. Rarely do cases reach the criminal court, however those where doctors are charged, for example, with manslaughter can reach the Criminal Court. He also described the Coroner’s Court, the GMC and the Health Service Ombudsman, the functions of which were for the protection of the public.
Dr Evans spoke about how to deal with complaints, and the central message was that of speed and sympathy. More often than not, if complaints are dealt with in this way they may go no further. He described the function of the MDU, which now had a 24 hour helpline. This received 2,500 calls per month, which dealt principally with patient complaints, ethical and legal advice, coroners’ inquests, GMC proceedings, as well as less frequent items. He gave some advice about how to write a report in response to a complaint. He stressed the importance of obtaining notes and photocopying all relevant sections because of the frequency with which notes are lost, making cases very difficult to defend. He reminded the audience that an apology or an offer of treatment or other redress, would not in itself amount to an admission of negligence or breach of duty. He stressed the importance of apologising for any mistakes.
Dr Evans looked at the work of the Health Service Ombudsman, who in 2009/10 had had 14,429 complaints. Of these, 58% were judged improper and only 346 were actually fully investigated. Only 80 of these were fully upheld, 33 were partially upheld and 67 were rejected.
Dr Evans looked at the MDU’s involvement in cases going to the GMC. The number of referrals had significantly increased with, a rise firstly in complaints from the public of 35% and secondly in referrals from public bodies such as employers, or the police by 117% for the period of 2008-10. There were now 17 concurrent hearings daily in both London and Manchester, and he stressed the importance of having proper representation at these hearings, involving a doctor’s medical defence organisation. Dr Evans wondered why these numbers were increasing and thought that this was for a number of reasons. These included a compensation culture, the perception of patients having consumer rights, the increased expectations of patients and the greater accountability of doctors to public bodies. He stressed the importance of investigating complaints, learning lessons and explaining changes in practice as a result, with the aim of assuring patients that this would not happen again. He further emphasised the importance of apologising to the patient for any adverse outcome. He commented that an increasing number of complaints later involved referral to the GMC. He looked at the risk categories of various specialties and commented that anaesthesia, which 30 years ago had been in the top category, was now near the bottom, with plastic surgery and obstetrics currently at the top. He said that when errors do occur leading to patient harm, they are rarely single mistakes but more often what is known as the “swiss cheese mechanism” where harm arises when all the holes line up.
Dr Evans then looked at the way a medical defence organisation can defend a doctor. Doctors have a duty of care and they can be demonstrated to be negligent when they are found to have breached this duty. The defensibility of a case depends upon a number of factors. The first aspect is the quality of a solicitor’s report from a complainant, which may range from being poorly argued or well prepared. Similarly, this is also true for a defendant’s statement. The defence organisation will then ask for an expert’s report, which may cast a new light on the case, following which there is a conference with the member. If there is a likelihood that the case may go to court, then the way a doctor may perform in court, will also be taken into account. Before a case does go to court, there are a number of issues that need to be taken into consideration, such as the reputational risk that it may pose for the doctor, the precedence of the case and the possibility of a negotiated settlement with its financial expediencies. He showed a slide of the value of reported CNST claims by specialty, with the most expensive area being obstetrics. Anaesthesia was relatively inexpensive. He pointed out that the MDU defended an average of 70% of all claims, whereas the NHSLA defended only 40%. In the last five years, about 12% of anaesthetist members of the MDU had had cause to get in contact with the organisation. The commonest factor involved in anaesthetic claims was dental damage being responsible for more than a third. Over the last ten years, the proportion of claims settled in favour of the claimant was about 36%.
In conclusion, Dr Evans, gave the audience his top tips. Firstly he recommended that every doctor join a medical defence organisation. When trouble arises, they should seek medico-legal advice pre-emptively. They should read and understand the GMC booklet, “Good Medical Practice”, and should not respond to a GMC complaint without medical defence organisation assistance. They should never attend a police interview without a solicitor, and should be particularly wary of accepting a police caution. They should learn to say “sorry” and respond personally and promptly to complaints, and any reports should be factual, jargon-free and concise.
‘Anaesthetic Misadventures, The Anaesthetist’s View’ - Professor Alan Aitkenhead, Nottingham.
Professor Aitkenhead started his talk by looking at the definition of misadventure, which the Oxford English Dictionary, defined as “a piece of bad luck or in law, death due to accident without crime or negligence”. Although he thought that some of the cases that he saw were due to misadventure, far more were not. With patient management, there were acceptable intentions and plans, acceptable actions with acceptable outcomes. However, errors can occur both in the planning and the actions leading to incidents and accidents. The sources of risk were individual, work environment, or system based. He commented that not all complaints were equally distributed amongst all doctors. In a study of 445 physicians, 15% were responsible for 50% of the complaints. Professor Aitkenhead looked at the critical causes of human error, which included inattention, inexperience, haste, failure to check or unfamiliarity with equipment, poor communication, distraction and lack of skilled assistance or supervision. Human factors were also important. These included the make-up and management of the team as well as its communication skills and decision making processes. Although Professor Aitkenhead said he had been critical of the way the WHO Surgical Safety Checklist had been implemented in his hospital, he admitted that it had certainly made a significant difference in ensuring the engagement of the whole team in reducing risk.
Professor Aitkenhead looked at mortality in anaesthesia and showed a graph which demonstrated the exponential rise in anaesthesia related deaths from the first anaesthetic in 1846 to a peak of approximately 8000 deaths in the 1930s, which had now been dramatically reduced. This reduction was due to a number of factors including the recognition of the importance of oxygen, fluid therapy, monitoring and training. In particular, pulse oximetry and capnography had made a very significant impact into patient safety.
Professor Aitkenhead looked at the consequences of a serious incident. Initially, there was usually an internal enquiry which may or may not lead to disciplinary action for the individual. There may also be a Coroner’s inquest which may then result in a civil claim. With a very serious incident, there may then be a criminal prosecution or a referral of the individual to the General Medical Council. Consequently, a doctor may be involved for many years following an incident before it is completely resolved. He then looked at two cases, the first of which demonstrated very poor anaesthetic practice, leading to patient damage. The second in contrast despite resulting in the death of a 9 year old boy, Professor Aitkenhead felt was due to misadventure because of the occlusion of one component of the breathing system by the cap of an intravenous giving set, which could not be easily seen. The anaesthetist involved had taken all reasonable measures to try and ascertain the problem but despite this, the child had still died.
Professor Aitkenhead then briefly looked at the incidence of awareness and looked as his own figures. Only six cases had been defendable out of approximately 200, which had been taken to trial in the last 30 years in this country. He also looked at epidural complication which seemed to have a far higher incidence compared to the number of epidurals inserted. These also included incidents of epidural infusions given intravenously. He commented that the system of non inter-changeable connectors was unlikely to be a success because of human ingenuity.
Finally, he looked at managing the consequences of misadventure. These included communication with patients and relatives and review of the incident with identification of human and/or system failures, and recommendations to prevent their recurrence. This could also be further improved by an audit of the implementation of these recommendations. His final bit of advice was not to speak to the media - let the managers do that!
‘A Date with the GMC’ - Mr Brian Alderman, GMC Panel Member
Mr Alderman introduces himself and spoke about how he became Chairman of the GMC Fitness to Practice Panel. He went back to the Medical Act of 1858, and looked at its purpose of maintaining a register of suitably qualified medical practitioners to distinguish them from the unqualified. This had continued to be a primary GMC function along with the setting and monitoring of standards of behaviour, education, and professional performance.
Mr Alderman looked at complaints submitted to the GMC which were rising. In 2010, there were 7,153 complaints, of which more than 2,000 were investigated. Only 314 reached a fitness to practice panel (4.4% of total complaints). There were principally two sources of complaint, of which 81% were from the general public and 19% were from employers or other public bodies. He said that about 2-3% of all practicing doctors will be reported to the GMC at some time in their careers. He asked everybody to read the GMC booklet ‘Good Medical Practice’.
Mr Alderman then spoke about GMC registration of doctors who qualify in Europe. He went through the case of a German doctor who had been employed by a locum agency for out of hours service. During his employment, he gave a patient an overdose of Diamorphine with the consequence that the patient died. He then looked at why this had happened. Clearly there was a clinical error of judgement, with the doctor being unfamiliar with the drug. However, there were also multiple process errors, which had predisposed to this accident. When the doctor had been recruited, he had had no GP experience on his CV and there was no medical review of that document. It was assumed that because he was on the GMC register, he was suitably qualified. The employer was only interested in filling a rota, and there was no induction process for the locum, or back up. All that he had been given was a driver and a drug bag. Mr Alderman explained how these factors had all had an influence on the death of the patient.
Mr Alderman then demonstrated how all European doctors can gain registration with the GMC through an EU Directive in 2005. Many can also get on the specialist register. However, there are no agreements on common medical standards throughout the EU, and the GMC is not allowed to test language or medical skills. Similarly there is no sharing of information between registration authorities throughout the EU, so a doctor struck off in one country, is free to practice in another. Consequently, Mr Alderman advised that employers should make proper clinical checks on doctors qualified in the EU as inclusion in the medical register or specialist register is not an indicator of relative competence. The Department of Health has stated that it is the duty of the employer to ensure that its employees are competent and have sufficient command of the English language. However, they have not given guidance as to how this should be achieved. Therefore employers inevitably rely on doctors to give them appropriate medical advice. Our responsibility is to ensure that our advice is well founded. Therefore at interview of any doctor coming from another country, it is always important to ask the right questions, as one should not assume that experience abroad is equivalent to our own.
Mr Alderman then looked at record keeping and communication. He gave an example of the case and went through the standards of record keeping in good medical practice.
The next section looked at dishonesty. Mr Alderman was not going to speak about major fraud, but the ease with which doctors, through naivety, can get themselves into trouble. He gave an example of the case of a doctor having had two episodes involving the police, had then failed on two occasions, to disclose these to his employer. When he eventually came in front of the GMC, he was suspended from the register for six months. The learning points from this were that all convictions are by definition criminal, except fixed penalty fines and the acceptance of a police caution requires an admission of guilt and will therefore be reported by the police to the GMC. Consequently in any consequent job applications, forms must be accurately and honestly filled in reporting any such incident.
In conclusion, Mr Alderman had some take home messages. Firstly, all doctors should read “Good Medical Practice”, and take the contents seriously. Secondly, all doctors should join medical defence organisations, as crown indemnity is not enough, particularly when your employer brings a case against you.
‘Learning Lessons from Medical Errors’ – Dr Umesh Prabhu
Dr Prabhu started his talk by giving a potted history of his career to date and how had had become Medical Director of Wrightington, Wigan and Leigh Foundation Trust. He commented that he was very proud to work for the NHS, as the vast majority of work performed by doctors is of a very high quality. However, in recent years, there had been a number of high profile cases of professional failure. These included Harold Shipman, Richard Neil, Rodney Ledward, the Bristol cardiac surgery and Alder Hey pathology scandals. In many of these failures, there were common themes, which included poor leadership and organisational culture. There was also poor clinical governance and quality assurance systems were lacking. There were also difficult doctors, doctors in difficulty, poorly performing doctors, and poor team working. More importantly, management were unaware of what was happening at ground level. Those that did know, didn’t know what to do, and when they did raise concerns, they were ignored, or sometimes bulled or victimised to keep quiet. This has consequently undermined confidence in both the local hospital and the broader NHS. Dr Prabhu commented that disasters don’t just happen, there are warning signs and patterns which are often ignored until eventually disaster strikes.
Dr Prabhu wondered why it was the GMC that regulated doctors because it was employers who had all the information about them, and it is also the employer’s responsibility to protect patients. Consequently he thought that local medical leadership was the key to success in each Trust, rather than delegating it to the GMC. He looked at his experience as Medical Director of Wigan. He had 186 consultants of which most he thought were excellent. However, he had had to intervene 52 times. He said that 11 consultants had been referred by angry patients to the GMC although he knew them to be excellent consultants, and had no concerns. However, there were three others who had not been reported, of which he had serious concerns, and the GMC had no idea.
Dr Prabhu looked at patient safety in the NHS. He said the statistics demonstrated that 1 in 10 patients suffered an adverse event, and nearly half of these were thought to be preventable. The reasons for harm to patients were complex and not simply the result of bad doctors. He thought there were seven principal causes of harm to patients. These range from human error, communication problems, poor organisation, culture, leadership or system issues, difficult doctors or doctors in difficulty and performing poorly and finally criminal psychopaths etc who happen to be doctors. He dealt with the last group first, and said that the lessons that need to be learnt for Trusts were to have a fair and open culture which was supportive, and when concerns are brought to one’s attention, they should be dealt with effectively. He commented that too many “good people keep quiet”, not taking on leadership roles which he encouraged everybody to do.
Dr Prabhu then looked at human error, which he said was inevitable, but to not learn from mistakes is unacceptable and to cover them up is a crime. The reason for the latter he felt was organisational culture which encouraged blame and intimidation. A recurring theme throughout the whole afternoon was his recommendation of being a member of a medical defence organisation. He then turned his attention to difficult doctors, who could be seen as rude, arrogant, with poor communication, team playing, organisational and leadership skills. He commented that most doctors are referred to NCAS or the GMC for poor conduct or behaviour and not for poor clinical skills. He thought that too often, these were allowed to get out of hand and could be kept in check if they were addressed early.
The next group he spoke about was doctors in difficulty with health, alcohol or drug abuse, or who had difficulties due to work load or domestic circumstances. He highlighted that anaesthetists were at particular risk of this and denial is common in addicted people. Again, the theme was to seek help early which may help to address the situation before it goes too far.
Dr Prabhu then spoke about poorly performing doctors, and categorised them into three groups. The first were those that had always been poor and in retrospect were often easily recognised. The next group were those that had become incompetent over the years and had not had the insight to see their increasingly poor performance. Finally there was the group who were temporarily performing poorly because of difficulties, as highlighted in the previous group. Dr Prabhu felt that revalidation may help to identify these doctors, and again early intervention was very important. He commented on disorganised departments, which may be disrupted by individual doctors or poor systems within them.
Dr Prabhu then went onto patient safety which, he said, was everybody’s business because we all have a moral and legal duty to ensure that patient safety is at the heart of everything that we do. He commented that as doctors we are leaders and ultimately guardians of all our patients, and it was our duty to ensure that we had effective clinical governance and quality assurance systems in our Trusts. He said that despite medicine being a risky profession, most medical errors are preventable. This could be done by having effective clinical governance, strong medical leadership with effective team working, helped by a positive culture of reporting and learning from complaints, litigation and clinical incidents.
His final comment was that we should show strong medical leadership, which our patients need, the Trust and the NHS deserves and the profession expects from us. He thought that true medical leaders were a rare commodity but encouraged more of us to take part.
24th March 2012