How can I protect myself from clinical negligence claims?

Ms Nicola Innes provides tips for medical professionals to avoid clinical negligence claims

Clinical negligence claims are a growing concern for medical professionals. The claims process can be long, costly, and extremely stressful. Doctors may also face reputational damage when allegations arise.

At Medical Protection, my team and I support doctors in Ireland with claims day in, day out. We see the impact they have and we also see a number of common themes across the cases we manage.

Here are my top 10 tips for doctors to avoid claims arising or to help in defending a claim, should a patient take legal action.

1. Comprehensive patient notes. The single most important piece of advice is ‘note it’. If the worst comes to the worst and a patient makes a complaint or raises a claim against you, then the first place that the lawyers (and medical experts) will look to try to determine whether you have fulfilled your duty of care is the patient’s notes. While your evidence as to what might be your normal practice will be considered, it is very difficult to persuade a court that a doctor checked something or gave specific advice if it is not recorded in the notes – especially when the patient will no doubt be saying that it did not happen.

Even if you just use your initials or abbreviations to indicate that you have examined something or given certain advice, that is helpful. All that is needed is something that can be referred to at a much later date to evidence that something did actually happen. In some cases (for example, a presentation with chest pain), it is also important to record negative findings. Within the claims team at Medical Protection, we see many cases that we could probably have defended, but unfortunately the doctor had failed to note the examination or tests that were carried out or the advice that was given.

2. General lifestyle advice. Every time you give general lifestyle advice, record it on the patient’s notes. If you give advice about smoking cessation, weight, diet, or exercise at a consultation, record that you have done so. We recently had a claim concerning vascular disease and ultimately partial leg amputation. Our member was adamant that smoking cessation advice had been given in all consultations, but the patient denied they had received such advice. It was not recorded in the notes, and we therefore could not prove it had been given.

3. Caution with prescriptions. It sounds obvious, but if you are signing a prescription, make sure you are satisfied that the medication is correct and suitable for the patient. Be particularly cautious if the patient is not your own patient or if you have not seen the patient yourself. If repeat prescriptions requested by phone are typed by clerical staff and presented for signature, make sure to check that the medication and dosage has been typed correctly. We have had recent claims where the decimal point on the dosage was wrong and also a claim where a risk materialised, but the prescribing doctor had not seen the patient and could not say the patient had been informed about the risk.

4. WhatsApp and text messages. Be aware that text and WhatsApp messages sent to a patient, or sent to any other clinician about a patient, form part of the patient’s medical records and will have to be included if a patient makes a data subject access request or simply requests their records. Treat these messages in the same way as an entry into a patient’s notes. We have had claims where WhatsApp messages, which have been less than professional, have had to be provided to the court. 

We have had claims where WhatsApp messages, which have been less than professional, have had to be provided to the court

5. Communicating test results. You are responsible for providing your patient with the results of any tests that you have requested or ordered. Do not rely on a patient coming to you for their own test results. If you attempt to phone a patient with results and are unable to get through to them, then this should be noted in their records and subsequent attempts made.

6. Referrals. If referring a patient, ensure that you provide all necessary information in the referral letter. For example, a referral to the emergency department should have relevant medical history and allergy information. If referring to a specialist because of an unusual finding, state the finding in the referral rather than just saying “see enclosed”. Thereafter, avoid making assumptions that secondary care will manage everything once a patient has been referred to them. Be alert to letters from secondary care colleagues that require some action on your part and ensure there is a system in place to plan ahead as appropriate.

7. Consent. If you need to obtain consent from a patient ahead of surgery or a procedure then ensure that you note that you have done so. The consent conversation should include a discussion around the risks (along with the chance of them occurring) and reasonable alternatives (including alternative approaches to surgery and doing nothing). Everything that is discussed should be noted. An abbreviated form is fine as long as it can be referred to at a later date to evidence that something was discussed. If you provide a patient information leaflet, then note that this has been given to the specific patient, even if just by way of a tick or similar.

8. Use of initials. When adding consultation notes to a patient’s chart/records, use your initials so that it is clear which doctor is seeing the patient each time they attend. This may help avoid you or your colleagues being named as defendants in a ‘scattergun’ court summons. If it is not clear to a patient’s solicitor which doctor their client actually saw, then they will simply include all doctors.

9. Robust software and systems. The software and systems used in the healthcare setting where you work should be appropriately robust. For example, a practice might have a system where one practice doctor signs all repeat prescriptions requested on any given day, even if they have not seen the patients. Is this safe? Or if practice software does not make it clear on a patient’s records who it is that has seen the patient on any given date, can this be improved? If you think a system or software is vulnerable or could be improved, speak up.

10. Patient care during legal action. Finally, be aware that a patient might continue to come to you as their doctor, even if they are suing you. This happens more often than you might think. You can request advice and support on how to manage this situation from Medical Protection, or your indemnifier.