Two questions I have been asked on more than one occasion – and very good questions they are!
I first considered question number one as a trainee. Two law suits had started against me alleging negligent management, one relating to an alleged missed diagnosis, and the second relating to management of an injury. I was devastated, and foresaw an early end to my career. Fortunately for me, my management of these patients was defended successfully by an eminent orthopaedic surgeon, and the cases were abandoned. Litigation is a fact of life for orthopaedic surgeons in many countries.
These early brushes with the medico-legal process made me think carefully about how I would practice medicine henceforth, and about the medico-legal process itself.
I made two decisions. The first was a decision to try to practice, not defensive medicine, but defensible medicine. What do I mean by this?
To me, defensible medicine is a logical series of steps, which are considered, self-questioned, and documented so the logical pattern of management is obvious in retrospect. I think that employing this approach has helped me to reduce the number of errors I have made.
The first step is diagnosis. The first major error is leaping to a diagnosis on the basis of odds, and then despite evidence to the contrary, clinging to it like a drowning man clings to a rock. The second error is not to make a diagnosis at all and manage symptoms instead. It is dangerous to manage symptoms – always manage a diagnosis, even if it is a working diagnosis or a differential diagnosis to start with.
In the diagnosis, the questions I ask myself are these:
- How certain am I that my diagnosis is correct? Does everything fit? Are there any typical features that are missing; or are unexplained, atypical features present?
- What is the worst it could be? How can I be sure that it is not that?
- Is there only one diagnosis? Medicine employs and teaches us reductive reasoning. This is an attempt to explain multiple symptoms/findings on the basis of one diagnosis. Nature doesn’t always play along with this, and sometimes throws two curve balls at once. Consider this possibility.
- Are there easy & safe investigations to decide the issue? If so, use them. Being right 80-90% of the time on clinical grounds is no longer good enough if the patient is me or a member of my family – so why should it be good enough for others? (I have family experience of missed diagnoses and I know this).
- Is the patient improving on treatment as expected ? IF NOT – RECONSIDER DIAGNOSIS!
Regarding the management of the condition, the answers to the following questions must be shared with the patient:
1. What are the reasonable management options that should be put to the patient (including the no treatment option)? (An earlier post discusses this: Bayley -v- George Eliot Hospital NHS Trust 2017. Consent, and the definition of reasonable alternative treatment).
2. What are the chances of success, the longevity of success, & safety profiles of the options? Is there a good evidence base?
3. Do any of the options ‘burn boats’ ? In other words, does the choice of one option thereafter rule out others?
4. Does the management withstand logical scrutiny? Can it be drawn as an algorithm? This often clarifies thought processes and aids explanation.
5. Is there a high chance that even expert management could end badly? If so, how about second opinions before we embark?
If a patient questions the need for further opinion, I say that their case is difficult, and that I want them to be happy, both now and in the future, that what was done was appropriate.
If the chance of a sub-optimal outcome is significant – you MUST explain it to the patient & document the discussion in a letter to the patient and family doctor.
After surgery, if some problem crops up, you must go through these diagnostic & management steps again.
So ‘defensible medicine’ was the first lesson I took from these experiences.
These claims against me were perfectly understandable from the Claimant’s perspective. They were not bad people, but something had happened that they did not think was right. The only reason their claims had not been successful is because a medical expert had taken the trouble to exonerate my management. Of course medico-legal practice seemed to me a worthwhile activity!
The second lesson I learnt from being sued was that, if judgements on clinical practice are to be fair to both parties, then some clinicians have to be prepared to spend time carefully & impartially examining the management of other clinicians. And in doing so, they must understand the relevant law and apply it appropriately.
The answer is that my medico-legal experience (on the receiving end, and as an expert witness) has affected the way I practice. I am more careful as a result. I think about what I do more. I document more. I have been more explicit about risk. I haven’t become more risk-averse (I have had a tertiary referral/limb salvage practice).
The second question was ‘why do you involve yourself with medico-legal practice?’
Initially I got invited to involve myself with personal injury cases. From a patient’s perspective, I could see that many injuries caused a significant financial hit that patients often struggled to cope with immediately, and for some that loss was ongoing. They needed help to recover financially as well as medically. From an insurer’s perspective, they didn’t want to be taken for a ride. Both sides had a need for the right amount of compensation to be paid – whether that was millions, or nothing – and I could help the Court to determine the issue. Also, from my perspective, there was an income to be made from it, and I had a young family…
I rapidly learnt that doing medical reports on minor injuries risked becoming a chore; there was a temptation to rush it. The way to elevate the task (any task?) from being a chore is to challenge yourself & take pride in doing it to a very high standard. It matters to others that you do that.
After ‘cutting my teeth’ on the minor repetitive injuries, I was entrusted to take on progressively more major cases, and eventually medical negligence cases. Looking back, a gradual progression like this was helpful.
The medical negligence cases often provide the most intellectual stimulation. Medneg is highly-charged and even more adversarial than Personal Injury cases are. You have to have quite a lot of experience and knowledge to say what an acceptable standard of care is, or was at the time of the incident; and what the consequences will be or should have been ‘but for’ (search for an earlier post on explanation of ‘but for’). You often need to search the literature. You must be decisive, and be prepared to justify your position in a logical way. You must be prepared to calmly stand in a witness box under a hostile cross-examination for half a day, a day, or however long it takes. This is not for everyone.
I have found medico-legal to be an interesting & rewarding aspect of my career (or should that be ‘side-hustle?)
In a way, this blog could be construed as my attempt to ‘pay forward’. If I can summarise what I have learnt, and bring aboard the expertise of others, I am hopeful this will help those at the outset of their careers, and perhaps those already established.
Even if you don’t want to get involved, this blog may illustrate the necessity for a style of practice that will reduce error. Secondly, it may help you to understand the process if you find yourself at the centre of it.
Those at the outset of their careers surely need some help to understand the arena they have perhaps unwittingly entered; as I found all those years ago. Medicolegal aspects of practice have not been taught to any great extent during training; it is simply assumed that clinicians will absorb what they need to know about it – but how will that occur when no-one likes to talk about it?