No cardiologist or indeed cardiac surgeon is above the law, and sooner or later a letter will arrive threatening legal action as a result of a patient's perceived misfortune. Such is the climate in which we live. No longer is free healthcare a privilege. People have been led to believe that they have a right to perfect health and if this is not achieved then someone has to take the blame and compensate the victim.
Governments and guidelines encourage this attitude. Doctors, however, lack the resources to deliver ideal health care and currently take much of the blame. Inevitably we will all fail in our duty of care towards individual patients occasionally and in the UK there have been some recent notorious examples. The tide of dissatisfaction runs deep and is exemplified by the fact that in March 2000 the National Audit Office stated that 23 000 claims amounting to a total value of £2.6 billion were outstanding against the NHS.10 Settlements of a further £1.3 billion were expected for claims not yet received. In 1998 it was estimated that £84 million was spent on clinical negligence claims by hospitals in England although the confidence intervals were wide. The increasing cost of medical negligence may not be as alarming as the above figures suggest; after allowing for hospital activity the annual rate of increase for closed claims during the 1990s was 7%. Most claims are legally aided and of those only 17% are successful. The Medical Defence Union (MDU) experience indicates that only 1% of cases end up in court, 70% do not proceed or run out of time, and in 29% of cases some sort of settlement is reached. It is difficult to escape the conclusion that the unregulated granting of legal aid is currently propelling the tide of litigation and that other approaches such as mediation and/or no-fault compensation merit re-examination.
Data from the Physician Insurers Association of America and the MDU indicate that missed heart attacks are the third most expensive type of claim, after brain damaged babies and breast cancer. Of 349 claims analysed over 10 years, 160 were against general practitioners, 70% involved patients with no previous evidence of coronary heart disease, 47% were under 50 years of age, and 77% died; the average cost per case in the UK was £27 000. Invasive and interventional cardiologists are potentially liable to larger claims against them and this is reflected in their medical insurance premiums.
What can the cardiologist do to avoid litigation? The first rule is to keep good records. "No notes = no defence" is a well tested aphorism. The second is to maintain competence. History shows that this is best achieved by practising in an environment where audit, peer review, and related activities are the norm. The single handed or isolated practitioner is the most susceptible to error. In undertaking procedures the cardiologist or institution with low volumes is vulnerable, especially if these fall below the numbers recommended by advisory bodies such as the British Cardiac Society.
Publications by the GMC explain what to do when things go wrong which, in essence, boil down to a frank explanation to the patient and/or relatives in the first place. All NHS hospitals nowadays have a department devoted to the handling of complaints who must be informed as soon as possible. If the matter cannot be resolved locally, the complainant then has two options. The first is to go to an "independent review" in which senior staff from an unrelated hospital examine the allegations, interview those concerned, produce a report, and make recommendations. In the author's experience these are a rather cumbersome and time consuming method of giving the complainants a chance to express their grievances. This is often all that is required. Sometimes it is difficult to escape the conclusion that the complainants are motivated by a desire, not just for an apology and a wish to see that the mis take will not be repeated, but rather by a desire to humiliate senior medical staff. Some doctors find this difficult to accept but they should remind themselves that humility is a virtue.
Sadly the implementation of any recommendations—for example, faster access to coronary artery bypass surgery— may be frustrated by lack of resources.
The complainant's second option is take legal advice, and then action. Nowadays the first clue that such action is being contemplated is a request for release of the patient's notes. In order to succeed the complainant must first show that harm has been done—"but for the cardiologist's action I would be alright now". Death is generally indisputable. Chronic leg pain and immobility following a femoral haematoma are, however, more difficult to evaluate unless there are convincing neurological signs, which might persuade a judge. Secondly, the complainant has to show that the doctor "failed in his duty of care" and that his action or negligence caused harm (liability). In order to succeed a complainant does not have to prove a causal relationship beyond all reasonable doubt as in criminal law, but merely to show that it was "more likely than not" (causation). Thirdly, when it comes to a settlement, the complainant must be able to show that he has been disadvantaged by the harm and to what extent (quantum).
These steps in the process of litigation explain why so few cases proceed. Most cardiologists should have little to fear. But even the threat of litigation is a very unsettling experience. A few doctors find it difficult to carry on but, with help, most do, and most find that patients still have enormous confidence in the profession. The tide of litigation may ebb somewhat because complainants are now subject to closer scrutiny before being granted legal aid, and the register of solicitors permitted to undertake medicolegal work is diminishing the availability of the opportunistic solicitor.
In defending an action a doctor will rely on the Bolam test. This was a case in which the defence successfully argued that the doctor's actions were in keeping with a reasonable body of medical opinion, as follows: "In the realm of diagnosis and treatment, there is ample scope for genuine difference of opinion and one man clearly is not negligent merely because his conclusion differs from that of other professional men, nor because he has less skill or knowledge than others would have shown. The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of acting with ordinary care".
This judgment has not been challenged for 45 years but there is a rider, as a result of a judgment handed down in the Bolitho case in 1997, since when it has also been necessary to demonstrate that the doctor's action would "stand up to analysis". It is thus not necessary to demonstrate that the cardiologist practised perfect medicine but simply that he acted rationally and logically according to a body of opinion among his peers.
The concept of the "non-negligent loser" should be familiar to all doctors. This is the case in which liability is not admitted but a financial settlement is negotiated with the complainant's representatives, because it is the cheapest option. No fault is admitted by the defendants and the doctor's professional status is unimpaired. Some doctors find this difficult to accept and want to fight on. The only gainers in that event are the lawyers.
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