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A comprehensive review of two essential areas for healthcare professionals facing legal claims: the importance of maintaining good medical records and understanding the principles of consent.
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Alaw Owenalaw.owen@hilldickinson.com Senior AssociateHealth Litigation Team
Defending a claim. A review of two essential areas: 1) The importance of taking good medical records 2) Consent
We will consider • What is a health record? • Importance of medical records • Components of a good medical record
Importance of Medical records (1) • Only record you have of what occurred • An accurate account of treatment, care planning & delivery • Reflection of the standard of your professional practice
Importance of Medical records (2) • Three lines of accountability: • To your professional body: GMC / NMC for conduct and practice. • To employers under your contract of service • Within legal proceedings
Importance of Medical records (3) • Your records will be crucial in: • Complaints / other internal investigations • Inquests • Claims for clinical negligence • GMC/NMC/Professional body proceedings
Example 1 • Facts: • Liposuction on buttocks, inner and outer thigh. Surgery uneventful and patient happy. • Post-operatively developed skin contouring.
Example 1 • Medical Records: • Limited pre-operative records. • Risks discussed included bruising, infection, surgical shock and (we say) skin contour irregularities. • Medical records included a squiggle for skin contouring.
Example 1 • Issue: • Factual dispute as to what the “squiggle” signified • The patient said: skin contour irregularities not discussed. • Medical professional disagreed. • Outcome: • Could not defend. Settled for £30,000.
Examples A poor medical record Can you spot the error?
Example 2 Unclear and illegible. Who is making the record?
Example 3 A poor medical record Can you spot the error?
Example 3 Alteration: black marker to delete the entry
Components of a good medical record • Legibility • Illegible - ineffective communication. • Read and understood by yourself and others. • Handwritten: black ink minimises fading and supports photocopying. • Dictate longer entries if possible.
Components of a good medical record • 2. Contemporaneous • Do not leave writing up for later. • Best practice – by the end of your working day. • Don’t add anything to a previously entered record unless separately dated and signed. • Always indicate the date and time of each entry and date and time of each event.
Components of a good medical record • 3. Factual Information • Relevant history • Examinations, assessments, investigations and findings • Any identified follow up action – care plan • Problems arising and action taken in response • Clear evidence / rationale for the care planning
Components of a good medical record • 4. Alterations • Never erase, overwrite or try to ink out any entry. • In case of error, draw a single line through the incorrect entry, with the date, time and your initials in the margin. Mark “error” on the entry. • Computerised entries: make it clear that you have gone back into an entry or create a new entry altogether.
Components of a good medical record • 5. Complete Everything • Tick box style forms are great. Makes you think about certain aspects of care at the relevant stage. • But don’t be a slave to it. • And, if something is irrelevant or not known – say so or cross it out, otherwise it looks as if it has not been considered
The Old Law • Clinician not guilty of negligence if: • he/she acted in accordance with the practice accepted as proper • by a reasonable body of medical practitioners skilled in that particular art • the professional opinion should be logical
(2) The New Law • Montgomery v Lanarkshire Health Board [2015] • Patients must be warned of any ‘material risks’ of any procedure and advised of any reasonable alternatives.
(2) The New Law • Montgomery • Entitled to decide which, if any, of the available forms of treatment to undergo. • Make sure patient aware of any material risks involved in any recommended treatment and of any reasonable or variant treatments. • Materiality: whether a reasonable person in the patient’s position would be likely to attach significance to the risk; or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it.
(2) The New Law – What has happened since? • Cosmetic surgery: A GMC Guidance issue with effect from 1 June 2016: • Guidance applies to all doctors who carry out both surgical and non-surgical procedures (including derma fillers etc.) however clearly states it is a useful framework for other professionals including beauticians and nurses. • Most striking feature is that consent should be obtained by the surgeon and cannot be delegated – see specific section regarding botox / fillers. • Doctors must market their services responsibly – see section on promotions and advertising.
(2) The New Law • A requirement to ensure that risks are not trivialised, albeit no specific definition or example is provided. • Must give patients ‘time for reflection’ – how long this is depends on the amount and type of information including the invasiveness, permanence and risks of intervention. • Consider patients’ psychological needs and whether referral to another experienced professional is appropriate.
(2) The New Law – Example Psychological Assessment • Mrs B comes in for a consultation for breast enhancement. Tearful, very low in mood and the way she looks is affecting her confidence. • Doctor concerned that low mood may be due to more than dissatisfaction with way she looks – possibly depression or anxiety. • She tells Mrs B that she concerned that she may be depressed and would like to refer her to a psychologist and speak to her GP before considering surgery further. • Mrs B is reluctant to let doctor discuss this with her GP. What should doctor do?
Example • Options • Tell Mrs B she cannot proceed until she can satisfy herself that her patient’s mental health is not affecting her decision. • Speak to her GP to get a clearer picture of Mrs B’s medical history/see if she is suffering from depression. • Agree to carry out the surgery in the hope that it will improve her confidence and mental health.
Example • Answer • A • Paragraph 19 of the guidance tells doctors to consider their patient’s psychological needs and vulnerabilities and paragraph 44 says they must ask for advice from colleagues if the patient has a health condition that lies outside their field of expertise that may be relevant to the patient’s request for the intervention.
Case Study • F, 55, undergone 4 cosmetic procedures in the past. • Now wanted a facelift to improve the appearance of skin on neck, cheeks and eyelids. • Operating surgeon examined her and recommended a ‘MACS’ facelift. Discussed less invasive alternatives including fat injections. • Detailed note of risks and benefits. Appropriate ‘cooling off period’. Second consultation and further discussion of risks/benefits. • C became unhappy 8 months later and complained of poor outcome.
Case Study –Continued Claim brought, allegations include:
Case Study –Continued • C accepts that she was given alternative, less invasive options. • C also, it seems, accepts that the consent for the MACS facelift was adequate. • Is D negligent for failing to advise her of every possible alternative once he had decided which one he felt was best?
Case Study –Continued • Our expert: • …there are many technical varieties of facelift. It would be impossible for a patient to make a judgement as to which is likely to suit their needs best, or which is likely to give the best outcome in a particular surgeon’s hands. Although Montgomery dictates that the doctor must discuss all relevant options with the patient, including doing nothing, it does not imply that the doctor must describe every conceivable variation of a particular procedure such as facelift. • What did we do?
Case Study –Outcome • Case listed for Trial in the RCJ • We decided it was worth proceeding • 5 days before the Trial: the Claimant’s solicitors discontinued.
Tips – Important Points A material risk cannot be reduced to percentages. The significance of a risk is likely to reflect a variety of factors besides its magnitude, e.g. the nature of the risk, the importance to the patient of the benefits sought to be achieved by the treatment, the alternatives available and the risks involved in those alternatives. The assessment is fact sensitive and sensitive to the characteristics of the patient.
Tips – Important Points Your role involves a dialogue, the aim of which is to ensure that a patient understands the seriousness of their condition and the anticipated benefits and risks of the proposed treatment and any reasonable alternatives, so they are in a position to make an informed decision. The information must be comprehensible. Your duty is not fulfilled by bombarding the patient with technical information which they cannot be expected to grasp, let alone routinely demanding their signature on a consent form.
Tips – Important Points Finally… document everything!
Quick reminder The information and any commentary contained in this presentation are for general information purposes only and do not constitute legal or any other type of professional advice. We do not accept and, to the extent permitted by law, exclude liability to any person for any loss which may arise from relying upon or otherwise using the information contained in this presentation. Whilst every effort has been made when preparing this presentation, no liability is accepted for any error or omission. If you have any particular query or issue, we would strongly recommend you contact a member of the Health Team who would be happy to provide specific advice.
Alaw Owenalaw.owen@hilldickinson.com Senior AssociateHealth Litigation Team
