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Christopher B-Lynch


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Medico-Legal Claims Evaluating The Causes And Assessing The Potential Benefit Of Alternative Dispute Resolution

INTRODUCTION

Medical litigation claims have escalated considerably over the last 15 years. The size of individual settle­ments, ranging from £220,000 in 1979 to £1,700,000 in 1991, has also taken a steep upward trend 1-4.High risk specialities include obstetrics, gynaecology, anaesthesia and orthopaedics. Obstetric and gynaeco­logical complications accounted for nearly 20% of a series of 4000 consecutive claims for compensation notified to the medical protection society and 23.7% of total settled claims by the medical defence union 5,6.Patient complaints may arise from a number of common channels, all of which advocate improving patient care and the management of the complaints process, and puffing patients first 7,8 (Table 1). Since the Introduction of Crown Indemnity in 1990, Health Authorities and NHS Trusts have yet to build up significant experience, compared with that previously held by the defence unions 9,10. There is no doubt that obstetricians and gynaecologists need to address the issues of reduction of adverse incidents by proper risk management and by taking active measures in the management of patients complaints in the early stages 10,11. These measures could lead to consider­able savings of NHS funds.Table 1. Common channels from which complaints may arise.

  1. The patient
  2. Community Health Council
  3. Hospital complaints procedure
  4. Action for Victims of Medical Accident (A.V.M.A.)
  5. The General Medical Council
  6. The Family Practitioners Association
  7. Ombudsman, solicitors and statutory enquiry under the NHS act of 1946 (later 1977 section 84)
  8. Patient’s Member of Parliament

When the litigation process starts the timescale for resolution of disputes varies enormously, and the whole process can run into years rather than months. The disparity between quantum (i.e. the amount of damages that the judge may award the plaintiff) and the overall costs in small cases is of great concern to health authorities who may have to pay out settle­ment costs, including the costs of the Legal Aid Board which may fund the litigation process on behalf of the plaintiff. It is sometimes not clearly understood by health professionals that in cases where the plaintiff is supported by the Legal Aid Board the health authority of the defendants will have to meet the defendant’s costs, even if the plaintiff loses the action. Should the plaintiff win, the health authority will be liable for both the defendant’s and the plaintiff’s costs. Thus health authorities and trusts are in a no win situation. The cost of medical litiga­tion for both the plaintiff’s and defendant’s teams is a value and consideration, and is usually quite proportion to the quantum of damages awarded.There are a variety of processes that could be used for alternative dispute resolution. Not all of these would be appropriate for medical litigation cases, but consideration should be given to a negotiated or mediated settlement which may expedite resolution and may be an important way forward, especially for small claims 11-14. This study highlights the common causes and reasons for these claims. It also suggests some ways of improving the management of patient complaints and avoiding medico-legal dispute.

METHODS

The files of 521 cases received over the 10 year period between 1984 and 1994 were reviewed. These were following requests from over 100 solicitors, primarily from the British Isles but also from the Republic of Ireland and Hong Kong. Completed case histories were reviewed, including all clinical test results, patient statements and various correspon­dence, with particular attention given to the disputed issue in each case. After the medical expert opinion had been written and sent to the solicitors, each case was anonymously prepared and sent to a colleague of competent standing in the profession for a second opinion. That opinion did not alter the original opinion which had been sent to the solicitors, but formed the basis of this prospective study. Those cases in which the conclusions were in reasonable agreement with the second opinion were deemed suitable for analysis in this paper. The analysis of the first 500 cases that met the above criteria were further analysed independently and graphically by the second author (NC.) using a computer spreadsheet (Microsoft Excel). Out of 521 cases, only 12 failed to meet these inclusion criteria, the remaining nine cases were ignored as the aim was to analyse 500 cases. We report the major issues involved in disputes in obstetrics and gynaecology and propose measures that may assist in dispute management.

RESULTS

The age range of patients analysed in this study ranged from 19 to 70 years with a mean age of 42 years; all were female and their problems were either obstetric or gynaecological. Of the 500 cases reviewed, 225 were obstetric and 275 were gynaecological. Most cases were misguided allegations (i.e. allegations instigated by inappropriate advice to the plaintiff to consult solicitors) (n = 230; 46%). However, incompetent management (n = 96; 19%) and errors of judgement (n = 58; 12%) were to blame for a substantial number of claims. Improper coun­selling or consent occurred in 36 cases (7%), while lack of expertise and inappropriate supervision were found in 46 (9%) and 29 (6%) cases, respectively. Only in five cases (1%) was there inadequate staffing.Of the 225 obstetric cases reviewed, the most com­mon problem resulting in dispute was cerebral palsy (22%), neonatal death (10%), and developmental delay (6%). The cerebral palsy cases included intrapartum hypoxic encephalopathy (11.2%) and other causes of cerebral damage (10.6%). However, 119/225 (53%) were misguided allegations.Of the 275 gynaecological cases reviewed, failed sterilisation (19%) was the most common event lead­ing to dispute, followed by perforated uterus (8%), urinary tract injuries (6%), and endoscopic surgery injury (3%). Misguided allegations accounted for 111/275 (40%).Misguided allegationIn our study 46% of disputes arose from misguided allegations, the causes of which are summarised in Table 2. This compares favourably with previously published data’5 in which an analysis of 100 medical cases showed that 44 cases were misguided allega­tions. A similar analysis of 500 obstetric and gynae­cological claims showed that 75% were defensible 16.Table 2. Common causes of misguided allegations.

  1. The patient thinks there has been a cover up.Â
  2. The patient thinks the hospital complaints process has been slow, inappropriate or inadequate.Â
  3. There was a lack of understanding by the patient of the potential complications of the procedure because of failure in the pre-operative process.Â
  4. The reason for medico-legal action has been wrongly guided by pressure groups (e.g. in two cases by a member of staff suggesting to the patient that the management has been inappropriate).Â
  5. The patient failed to gain access to discuss what went wrong or failed to receive an apology or sympathetic understanding as to what went wrong.Â
  6. The patient’s failure to understand the difference between administrative failure and clinical management failure.

Incompetent Management

Incompetent management, including poor clinical management, poor teamwork and doctors exceeding their competence, accounted for 19% of obstetric and gynaecological disputes. This category was separate from those attributable to lack of expertise where the surgeon was in possession of the appropriate qualifi­cation but was technically incompetent or failed to seek the assistance of an appropriate surgical colleague.Error of judgement, lack of expertiseError of judgement appeared in 12% of cases where the adverse consequences were directly related to an inappropriate alternative course of management which the doctor undertook. In some cases senior colleagues exceeded their capabilities recruit specialist help before and/or during predictable complex surgical procedures.Poor counselling/consentThis featured in 37 of 500 cases (7%) analysed. The most commonly encountered claim in gynaecology was failure of sterilisation procedure. Note-keeping was sometimes poor, illegible or unsigned. Although some cases related to technical errors, most of these were pleaded lack of informed consent, including failure to warn of the procedure, known hazards of failure and complications. The main problem with counselling was an inappropriate standard of communication and note-keeping. In some of these appropriate counselling and valid consent were not documented. In others, there was a clear difference between what verbal information was given to the patient compared with what she perceived or under­stood at the time of such communication.Poor supervision, inadequate staffingWe found in this series that some junior staff per­formed difficult tasks unsupervised either because senior staff assistance was not recruited in advance or occasionally the junior staff failed to call for help when in difficulty. It was surprising that staffing inad­equacy played so small a role in the overall analysis despite the well known fact that staff shortages are a major problem in the NHS. This may illustrate the extent to which medical, nursing and secretarial staff will persevere to keep the work going despite staff shortages.

DISCUSSION

There have been several studies which have sug­gested ways to improve communication and consent, ranging from specially worded consent forms to the use of proformas to record operation notes 17-20.

Obstetric problems

Patients and their families are now less willing to accept that obstetric accidents are an act of God; they expect to be given details of how and why the prob­lem arose and to receive financial compensation for any error of management. In 1991 cases of obstetric brain damage cases accounted for 31% of claims made to the medical defence union but represented only 9.7% of settled claims. Up to 70% of claims are pleaded on events based on cardiotocographic abnor­malities. In our series the commonest obstetric cause of dispute was attributable to intrapartum hypoxic ischaemic encephalopathy following poor interpreta­tion of the signs of problems in labour, late diagnosis of fetal distress, poor prediction and management of shoulder dystocia, and unwise use of complicated manoeuvres in instrumental delivery where cae­sarean section would have been a more appropriate mode of delivery. Eight cases were probably attribut­able to in utero damage before labour, characterised by focal cerebral lesions and severely infarcted pla­centa. In these cases the histology record of the pla­centa was frequently absent; however, the medico-legal role of histological examination, especially of the placenta, has been stressed 21.

Among the cases of neonatal death were complication of shoulder dystocia, as well as lack of appropri­ate standard of care in delivery management, extreme prematurity, prolonged premature rupture of mem­branes, and intrauterine infection. Developmental delay involved cases where there were no intra­partum problems: babies were born with good Apgar scores but subsequently were found to have impaired development by the paediatrician. A proportion of these cases went into litigation because of poor com­munication between the obstetric team and the woman who was misguided into believing something avoidable happened during the antenatal intrapartum or early neonatal management. There is no doubt that better education, training and communication could improve standards of care and reduce risks.Gynaecological problemsIn 1991 failed sterilisation accounted for 25% of claims to the medical defence union and 17.4% were settled 6. In our series failed sterilisation (19%) was followed by perforated uterus (8%), urinary tract injury (6%), bowel and injury from endoscopic surgery (8%). In the failed sterilisation group an inap­propriate standard of counselling was a principal feature, closely followed by incompetent surgery (i.e. application of the clip to the wrong structure or par­tially occluding the fallopian tube).

There was a relatively high incidence of ureteric damage during hys­terectomy and ovarian surgery, from operations described as routine procedures, and cases of damage that went unrecognised during the operation to the bladder during hysterectomy and during caesarean section. There were also two incidents of damage to the urinary tract following a secondary attempt to stop bleeding from the vaginal route after abdominal hysterectomy. In one case the bladder was cut and not recognised, while in another the ureter was tied by a blind placement of suture to the vault. Perforated uterus occurred more in association with termination of pregnancy and evacuation of retained products of conception than with a nonpregnant uterus. Clumsy instrumentation was commonly the cause. In a pro­portion of these cases the operator was inexperienced and failed to recognise the initial position and attitude of the uterus prior to instrumentation, particularly the ante or retroverted uterine position. In a few cases the damage was not just a simple damage to the uterus but involved the bowel, mesentery, or major vascular structures. In the majority of these cases the injuries were avoidable.There were two cases of lack of valid consent to hysterectomy and five cases of injury at hysterectomy which had been performed with doubtful indication. Two patients claimed for wrongful removal of their ovaries at hysterectomy without appropriate consent. Structures damaged at endoscopic surgery were prin­cipally major vessels and bowel. In two cases the patients were high risk (previous multiple laparotomy) and the procedure reasonably contraindicated. It is obvious that these clinical problems should be part of risk management initiatives of service providers.Timescale between expert opinion reporting and dispute resolutionMedical expert opinion was completed within three to six months, but feedback regarding settlement from the solicitors was variable (e.g. some cases reported in 1992 were settled/heard in 1995). In some cases the principal author had to telephone the solici­tor to find out whether legal or nonlegal settlement had been reached.The responses were variable. The overall timescale was three to five years from complaint to settle­ment/court hearing. There was an overall tendency for cases to settle earlier if the claim was small to moderate (i.e. £1000 to £12,000), but brinkmanship can prevail between advocates of both sides only to settle at the very last minute.

Alternative Dispute Resolution

The British Academy of Experts define alternative dispute resolution as: “Any method of resolving an issue susceptible to normal legal process by agree­ment rather than by imposed binding decision”’3. This process invokes party control, an essential part of the mediation process. Mediation is probably the process that would seem appropriate for small claims in medical litigation (Table 3). The focus is on the parties’ willingness to bargain, combined with the skill of the mediator who should preferably be an independent expert (medical) of the appropriate speciality to facilitate a successful resolution.One significant advantage of alternative dispute resolution is the parties’ active involvement and con­trol (Table 3). In many court cases the parties quite often lose recognition of their own case prior to the court hearing 22. In Scotland, the Bolam Test was interpreted to imply that a defendant will not be held liable unless they have been proved guilty of such failure as no doctor of ordinary skill will be guilty of if acting with ordinary care 23. What this means in practice is that should a case proceed to trial, the Bolam Test relatively weakens the plaintiff’s position. In the decision of the House of Lords Table 3. The advantages of alternative dispute resolution (mediation).respecting

  1. The parties are directly involved in negotiating agreement.Â
  2. No settlement can be imposed on either party.Â
  3. The proceedings are conducted in private and the parties are in control of their own position.Â
  4. Mediation can be used early in a medico-legal dispute and agreement can be reached more quickly than when pursuing the problem through the courts.Â
  5. The parties have access to the services of an experienced person who can aid their negotiation and assist in reaching a quick settlement.Â
  6. The costs can be greatly reduced in comparison with pursuing the matter through arbitration or the courts.Â
  7. Mediation is very flexible and ideally suited for multi-party disputes, such as medico-legal dispute.Â
  8. It is possible to re-establish a positive relationship between the parties once the dispute is resolved.Â
  9. Failed mediation still protects the parties’ rights to pursue the legal process without prejudice.

Table 4. Suggested steps in dispute resolution.

  1. Make oneself available to patients and relatives with a complaint.Â
  2. Give a cordial welcome to all who attend, showing patience and avoiding the impression of condescension.Â
  3. Identify precise points in the clinical management, where there is agreement or disagreement including a note of the extent and degree of each.Â
  4. Identify those involved in the problem.Â
  5. Discuss each part of the clinical management which is in dispute with the patient or relative and try to gain complete understanding of the complaint, including any interpersonal relationship problems.Â
  6. Discuss the quality and standards which could have been expected in the circumstances.Â
  7. Get an assessment of the complaint by comparing the care received against an agreed standard.Â
  8. Assess the damage sustained by the patient.Â
  9. Assess the severity of the damage under physical and psychological headings.Â
  10. Make recommendations for future guidelines and care plans.

Maynard vs West Midland Regional Health Authority, Lord Scarman held that a judge s preference for one body of distinguished professional opinion to another also professionally distinguished is not sufficient to establish negligence 24.We consider there must be a strong case for alternative dispute resolution if the value of the claims and escalating trend of costs, the timescale for resolu­tion, the inefficient handling of claims, the need to save health service resources, the uncertain prospects of no fault compensation and currently the inex­pedient resolution process are all considered 3,4,9,25. Because medical litigation costs continue to rise as a consequence of delay and inappropriate management of claims, it is necessary to dispute resolution, particularly mediation. The arbitration process may be as adversarial as litigation, but it also may reduce the amount of time before cases are either resolved or heard by the courts.Our study suggests a large percentage of these claims are misguided allegations. With an appropriate standard of complaints management in place there is potential for a significant reduction in the number of complaints that proceed. With reference to the NHS complaint review by Government order, a positive course of action has been suggested for the efficient management of complaints7. The suggestion made by Chapman in the title of his BMJ article “The first thing we do, let’s kill all the lawyers” 26 is of course an inappropriate course of action. Instead, we should consider the four stages of risk assessment and management: 1. identifying what can go wrong; 2. measuring how often it goes wrong; 3. puffing in place controls to prevent it going wrong again and 4. identifying funding to pay for the resulting loss 10. There are advantages and pitfalls of developing clini­cal guidelines 27.

We suggest 10 steps that should be followed in the efficient management of adverse events in obstetrics and gynaecology 28 (Table 4) with these in place there should be a significant reduction in the number of women who consult solicitors and/or instigate litigation.Considering the escalating costs and quantum value in medical litigation there is a litigation boom 1,3. Doctors should be concerned that they might not be allowed to set their own standards unless they become actively involved in managing their patient’s complaints. A judgement of the High court of Ontario could be considered as an example of what may happen in the UK: it was held that “No profession is above the law, and the courts on behalf of the public have a critical role to play in monitoring and precipitating changes where required in professional practice” 29.

Serious consideration should be given to the mediation process particularly when the standard negotiation process during the initial complaint management has failed.Arbitration may develop from mediation, lead not by the mediator, but sometimes by the parties who empower their chosen arbitrator to make an arbitration award, a legally binding document giving scope for containing the alternative dispute resolution process. Pure arbitration, however, involves proce­dures similar to those of the court and therefore its cost-saving potential is doubtful. Arbitration may be valuable if the mediation process fails or does not lead to a solution with which both parties agree’2”3’30. Failure of arbitration may leave parties no choice but to resort to the legal process. The difference between litigation, arbitration and mediation is best sum­marised in Fig. 1, which illustrates the degree of party control which may form the essential basis for any successful dispute resolution.Fig. 1. Degree of party control and how it varies between negotiated settlement and litigation. (Reproduced by kind permission of the British Academy of Experts.)

CONCLUSION

Our study shows that a large percentage of potential medical litigation claims may be misguided allega­tions with little basis for successful litigation. Doctors should become actively involved in manag­ing patient’s complaints from the outset. There are a significant proportion of cases where improved education, training in clinical methods, skill and communication can significantly reduce adverse events and costs. The medical litigation process is stressful for all concerned, and efficient management of adverse events should improve standards of care and inspire confidence in our patients.The long delay in preparing medical litigation cases is unacceptable, and the process of resolution through the courts is quite slow. Therefore, the benefits of early alternative dispute resolution must receive due consideration. The recommendation in the Woolf report to expedite cases, and reduce costs are welcome but need careful assessment 31. The posi­tive benefits of mediation should be considered by doctors, health authorities and trusts, beginning with in-house review bodies that may be able to advise managers on the prospects of successful or unsuc­cessful litigation, in stead of waiting for the plaintiff’s solicitor to file a statement of case. If the process of mediation fails, arbitration may be a reasonable alternative within the scope of the alternative dispute resolution process prior to, or as an alternative to, liti­gation. As Dieter Giesen puts it, legal accountability for the provision of medical care may come in due course 22.“For too long legal education has been skills-based to ‘win’ rather than resolve problems. This emphasis should change” 32. We need more reconcilers and fewer warriors.

References

1

Chamberlain GVP, Sharp DS. Doctor’s Concerns about Litigation.

In: Chamberlain GVP, Orr CJ, editors. How to avoid Medico-Legal Problems in Obstetrics and Gynaecology. London: RCOG Press, 1990:33.

2

Pearse Wit Professional liability, epidemiology and demography.

Clin Obstet Gynaecol 1988; 31: 148-152.

3

Tharmaratnam S, Gillmer MDG. The litigation boom in obstetrics [legal update]. Obstet Gynecol Today 1995; 6: 17-19.

4

Fenn P, Hermans D, Dingwall R. Estimating the cost of compensating victims of medical negligence. BMJ 1994; 309: 389—391.

5

Pugh MA. Medicolegal problems in gynaecological practice. Medical Protection Society: annual reports and accounts 1985 (No 93): 22-24.

6

James C: Risk Management in obstetrics and gynaecology. Journal of the Medical Defence Union 1991; (2): 36-37.

7

Beecham L. NI-IS complaints reviewed by government order. BMJ 1993; 306: 1711.

8

Complaints process must put patients first [letter]. BMJ 1993; 397: 12.

9

Fenn P, Dingwall R. Medical negligence and crown indemnity. In: Harrison A, Greth I, editors. Health Care UK 1989. Newbury, 1990.

10

Secker-Walker J. Risk management and clinical care. Auditorium 1994: 17-20.

11

Bevan AH. Alternative Dispute Resolution. London: Sweet and Maxwell, 1992.

12

Brown H, Marriott A. ADR Principles and Practice. London; Sweet and Maxwell, 1992.

13

De Wilt Wijnen OLO. ADR: the civil law approach. Journal of the Chartered Institute of Arbitrators 1995; 61 (1): 38-42.

14

Morgan R. Medical negligence disputes: alternatives to litigation. Br J Obstet Gynaecol 1994; 101: 185-187.

15

Neale G. Clinical analysis of 100 medicolegal cases. BMJ 1993; 307:

1483-1487.

16

Ward CJ. Analysis of 500 obstetric and gynaecological malpractice claims: causes and prevention. Am J Obstet Gynecol 1991; 165 298—300.

17

Mitchell J. A fundamental problem of consent. BMJ 1995; 310:

43-48.

18

Urwin LJ Consent to medical treatment. Part 1: competent adults.

Health Care Risk Report 1994: 1-13.

19

Wolley FR. The effect of doctor/patient communication on satisfac­tion and outcome of care. Social Science and Medicine 1978; 12A:

123-127.

20

Fawdry R. Prescribing the leaflet. Br J Hosp Med 1994; 51: 551-553.

21

Roberts DL Medico legal aspects of placental examination. Obstet

Gynecol Surv 1993; 48: 777-778.

22

Giesen D. Legal accountability for the provision of medical care: a comparative view. J Roy Soc Med 1993; 86: 648-652.

23

The Bolam test:, Bolam v Friern Hospital Management Committee.

All England Law Reports 1957; 1 WLR 582 (1957) 2 ALL ER 118 (QB).

24

Maynard v West Midland Regional Health Authority. All England Law Reports 1984; 1 WLR 635 (1985) 1 ALL ER 635 (HL).

25

Report of the Working Party on No Fault Compensation for Medical Injury. London: British Medical Association, 1987.

26

Chapman S. Focus: Sydney ‘The first thing we do, let’s kill all the lawyers’. BMJ 1995; 310: 1090.

27

Graham C. Essential law for health services staff—the advantages and pitfalls of developing clinical guidelines. Oxford Centre for Medical Risk Studies; Newsletter No. 6, 1995

28

B-Lynch C. Role of consultants in managing a potential legal come plaint. Oxford Centre for Medical Risk Studies; Newsletter No 5, 1995.

29

Hajgato v London Health Association. Canadian Law Reports 1982;

36 0R2 d669 (HC)affd (1983)44 0R2 d 264 (CA).

30

British Academy of Experts. Alternative dispute resolution: degree of party control. November 1992, AA-Z.

31

Woolf H. Access to Justice: Final Report to the Lord Chancel/or on the Civil Justice System in England and Wales. London: HMSO, 1996.

32

Lord Alexander of Weedon. Who dares resolve, W1flS. Journal of the Chartered Institute of Arbitrators 1995; 167-168.

 

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