the Pitfalls Dr Martin Connor Consultant Microbiologist Some basic law Medical Negligence in Scotland Scotland currently operates a faultbased compensation scheme Compensation can either be awarded by the court or be paid to the pursuer in the form of an out of court settlement foll ID: 1032170
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1. Clinical Negligence and Infection – the Pitfalls?Dr Martin ConnorConsultant Microbiologist
2. Some basic law!
3. Medical Negligence in ScotlandScotland currently operates a fault-based compensation scheme Compensation can either be awarded by the court, or be paid to the pursuer in the form of an out of court settlement following a claim against an NHS BoardPursuers can seek compensation in relation to injuries or loss, including delays in treatment, future care loss, and loss of earningsHealth Boards / GP & other primary careNHS Scot CLO
4. The general test for non-clinical / non-professional negligence:Under Scots Law, there is a general duty on all to take reasonable care. This duty applies to most ordinary day to day activities of any person.The test is one of “reasonable care”.Very wide test and it underpins the common law in ScotlandAll healthcare professionsals – not just doctors!
5. The test for clinical negligence:The test is whether the doctor has been guilty of such a failure as no doctor of ordinary skill would be guilty of if acting with ordinary care.A mistake made by the doctor must be a mistake which no competent doctor in that field would have madeThis is the Hunter v Hanley test (England – Bolam test) and is usually set down as a threefold test:- There must be a usual and normal practice (i.e. by the doctor); The doctor has not adopted that practice; and The course adopted is one which no professional man (i.e. doctor) of ordinary skill in that field would have taken if acting with ordinary care. A doctor will only be deemed negligent if he or she has failed to meet the minimum acceptable practice. A failure to meet best practice is not enough
6. The Specialist:A Specialist, such as a Consultant, is to be judged according to the standard of the ordinary competent member of that specialism, i.e. a Consultant. Junior Doctors:A junior doctor similarly will be judged according to the standard to be expected of a junior doctor in that post. For example, an FY1 doctor will be judged according to the standard to be expected of a FY1 of ordinary competence. Relevant Expert:It is always necessary to obtain a “like for like” Expert Report. For example, if a GP has negligently failed to refer a patient for investigation of a breast abscess, an Expert Report from a breast surgeon on whether the GP was negligent will be irrelevant. An independent GP will have to prepare a “like for like” Report on the actings of the GP
7. The Defence:The doctor (in Scotland and in England) will have a defence if, as set out in the case of Bolam, “the doctor has acted in accordance with a practice accepted as proper by a responsible body…”. In practice, the doctor simply needs to produce a Report from another Expert to say that his course of action was accepted as proper by “a responsible body” of professional opinion. If there are two different Experts as to what is acceptable practice, the Court is not allowed simply to prefer one over the other. The Court needs to consider the two sets of Experts and then consider whether there is a logical basis for what the Expert says. The Court will have to have some basis for disregarding the Defender’s expert.The Bolitho exception!
8. Clinical negligenceTest for professional negligence sets the bar at a high levelIt has to be proven that no doctor of ordinary competence in that particular field would have made the mistake in question. It is not based on a failure to follow best practice.It is based on a failure to provide a minimum acceptable standard of care.
9. Consequences of the error: In deciding how bad the error is, the consequences of the error generally are not taken into account Careless driving is still careless driving whether someone is killed in the accident or whether by luck only minor injuries are suffered. The degree of carelessness remains the same.
10. Causation:To prove any case of medical negligence, there are two hurdles to overcome:Prove negligence (“liability”).Show causation. What difference the negligence made and to obtain a report from the relevant expert.If the negligence did not make any difference to the outcome then there is no claim.
11. Infection Clinical NegligenceClinical Negligence:Patient HCWInfection Clinical Negligence:Patient HCW Bugs ménage à trois!
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13. SepsisNot making the diagnosisNot responding to signs & symptoms. Young people!Not responding to blood results!Relying too much on blood results!Challenging patients eg IVDUNot instigating resuscitation quickly enoughNo / Delayed / Wrong antibioticsKumar (2006)@5 % mortality / hour? Still relevant now.
14. MeningitisDifficult diagnosis to make!Meningococcal meningitis vs sepsis.Rash may not be present earlyNeck stiffness not always seen in childrenSmall children in A&EStrept pneumoniae meningitis can be over 3 – 4 daysOften no rashEar pains / sinuses50% significant neuro deficit
15. OrthopaedicsProsthetic jointsDiagnosis of infection. AspirationCulture & Enrichment – SMI guideline compliant?OsteomyelitisSpinal epidural abscessBack pain / fever / neuro symptoms
16. SurgeryPost surgical wound infectionSurgical asepsis, prophylaxis, post-op careTissue samples and wound swabs – culture, enrichment, communication.Necrotising fascitisPain +++Vascular necrosisNot draining abscesses!
17. AntibioticsNot following antibiotic guidelines.Wrong type of antibiotic for type of infectionResistant organisms eg MRSA, VRE, CPENot checking microbiology historyNot discussing with Infection SpecialistComplications from antibioticsCDIAminoglycosides (otovestibular toxicity!)Saint Elsewhere.
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19. Negligence HAI IssuesMRSA & other Antibiotic Resistant organismsClostridium difficile infectionWound InfectionBlood borne virusesPrinciple of asepsis / aseptic techniqueClinical Governance, Regulation, Accountability, InspectionOutbreaks
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22. Vale of LevenDec 07 – Jun 0855 cases CDI18 deaths directly or indirectlyClostridium difficile O27 strain
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27. Outbreaks90% are Norovirus gastroenteritisCausality is difficult to demonstrate in most casesUnusual organismsFailure to decontaminate (eg BBV, PRIONS)Failure of Estates Maintenance Ventilation, Operating theatres, Endoscope Decontamination
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32. Impact of New Diagnostics?Microbiology CultureStill need to grow the bug!Often takes 2-3 daysBacterial typing (index of similarity between the organisms / confidence that they are the same)Matrix Assisted Light Desorption Time of Flight (MALDI-TOF)Minutes rather than hours/daysNucleic Acid AmplificationPolymerase Chain Reaction (PCR)Hours rather than daysWhole Genome Sequencing
33. HAI Legal ChallengesCan the source of infection be identified?Regardless of source, was diagnosis and treatment of infection appropriate?Risk of infection inherent to treatment or procedure not disclosed?
34. HAI – Legal & Ethical ObligationsChallengesIncreasing demandsAgeing populationMore complicated interventionsNew threatsConflicting targets (eg A&E waiting times)Decreasing resourcesLess financeLess staff ( “wearing several hats”)Estates & maintenance issues
35. HAI – answers?Clinical GovernanceICD, ICT, ICM, ICC, HAI Exec, CEORegulationNMC, GMCAppraisal, RevalidationLegalDuty of care (hand decontamination, medical equipment decontamination, single use devices)Poor standard of careFailure to implement risk reduction strategiesNHS IC Education is mandatoryInspectionInternal – ICT / Estates Dept / ManagersExternal – NHS Scot HEI
36. Infection Clinical Negligence – the future? Is of increasing importanceMore resistant organisms developingLess antibiotics to treat them with. Faster and more sophisticated diagnosticsHAI and Infection Negligence informed lawyers.Need to think “Infection”!
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