The role of clinical guidelines in medical negligence litigation: a shift from the Bolam standard?

Barriers to the Use of Clinical Decision Support for the Evaluation of Pulmonary Embolism: Qualitative Interview Study

BACKGROUND

Clinicians often disregard potentially beneficial clinical decision support (CDS).

OBJECTIVE

In this study, we sought to explore the psychological and behavioral barriers to the use of a CDS tool.

METHODS

We conducted a qualitative study involving emergency medicine physicians and physician assistants. A semistructured interview guide was created based on the Capability, Opportunity, and Motivation-Behavior model. Interviews focused on the barriers to the use of a CDS tool built based on Wells' criteria for pulmonary embolism to assist clinicians in establishing pretest probability of pulmonary embolism before imaging.

RESULTS

Interviews were conducted with 12 clinicians. Six barriers were identified, including (1) Bayesian reasoning, (2) fear of missing a pulmonary embolism, (3) time pressure or cognitive load, (4) gestalt includes Wells' criteria, (5) missed risk factors, and (6) social pressure.

CONCLUSIONS

Clinicians highlighted several important psychological and behavioral barriers to CDS use. Addressing these barriers will be paramount in developing CDS that can meet its potential to transform clinical care.

Lessons from the vaginal mesh scandal: enhancing the patient-centric approach to informed consent for medical device implantation

The vaginal mesh scandal, in which thousands of women were irreversibly maimed by polypropylene mesh, revealed multilevel failures in medical device regulation and implantation, demonstrating that patient-centric care has not yet fully transcended from policy into practice. In law, informed consent is considered by a two-stage test: reasonable treatment and patient information disclosure. The standard of reasonable treatment is determined according to what is deemed acceptable in accordance with a body of medical opinion. However, such bodies of medical opinion were vulnerable to external influence from device manufactures. Vaginal mesh manufacturers were found to have had financial links to research, royal colleges, and influential clinicians, which then influenced the basis of the evidence-based practice that often guides such bodies of medical opinion. According to the Independent Medicines and Medical Device Safety Report, patients' mesh complications were also frequently under-reported and patient-based evidence of harm disregarded. Patients were also not sufficiently informed of the material risks or reasonable alternatives to mesh, which is required of the second stage of informed consent pertaining to information disclosure. This paper makes the following recommendations: that conflict of interest disclosure be mandated, that greater value be afforded to patient-based evidence to improve evaluation of treatments, and that information disclosure for informed consent should relate to the risks, benefits, and alternatives to the surgical procedure and medical device. This will ensure that patients can evaluate whether surgeons are offering unbiased treatment options and are also informed of the potential long-term risks associated with device implantation.

Clinical practice guidelines in courts' representation of medical evidence and testimony

This article examines clinical practice guidelines (CPG) in the courtroom. The guidelines in question are Finnish national current care guidelines for brain injuries, and the case context is traffic insurance compensation cases contested in the Helsinki district court. We analyse 11 case verdicts qualitatively, drawing from earlier sociological and theoretical accounts of clinical practice guidelines and evidence-based medicine. What makes the case-type relevant for studying clinical practice guidelines is the fact that the cases, which feature a medical dispute concerning traumatic brain injury, involve highly specialized expertise and contradictory expert claims, but the cases are decided in a generalist court by non-expert judges. What we show in the article is how the guidelines structure, sequence and initiate temporal reworking in the judges' representation of medical evidence and testimony, and how the plaintiffs' delayed diagnoses complicate the application of the CPG in the evaluation. We further discuss the guidelines' epistemic authority in the verdicts and finish by comparing the 2008 and 2017 editions of Finnish CPGs for brain injuries, suggesting a multifaceted, courtroom-mediated feedback loop between the patient-plaintiffs and the clinical practice guidelines.

'Advice, not orders'? The evolving legal status of clinical guidelines

Healthcare professionals are expected to deliver care that is consistent with clinical guidelines. In this article, we show that the English courts are increasingly willing to be persuaded by written guidelines when determining the standard of care in cases of alleged clinical negligence. This reflects a wider shift in the approach taken by courts in a number of common law jurisdictions around the world. However, we argue that written guidelines are still only one element that courts should consider when determining the standard of care. It is possible to deliver perfect care that deviates from professional guidelines and even to deliver negligent care by uncritically following a guideline that is flawed. We further argue that written guidelines are relevant beyond defining the accepted standard of care. This is because the decision to deviate from a guideline suggests the existence of multiple approaches that should be discussed with patients as part of ensuring informed consent. It is therefore likely that written guidelines will become an even more prominent feature of the medicolegal landscape in future years.

New Rules on Patient's Safety and Professional Liability for the Italian Health Service

BACKGROUND

The phenomenon of clinical negligence claims has rapidly spread to United States, Canada and Europe assuming the dimensions and the severity of a pandemia. Consequently, the issues related to medical malpractice need to be studied from a transnational perspective since they raise similar problems in different legal systems.

METHODS

Over the last two decades, medical liability has become a prominent issue in healthcare policy and a major concern for healthcare economics in Italy. The failures of the liability system and the high cost of healthcare have led to considerable legislative activity concerning medical malpractice liability, and a law was enacted in 2012 (Law no. 189/2012), known as the "Balduzzi Law".

RESULTS

The law tackles the mounting concern over litigation related to medical malpractice and calls for Italian physicians to follow guidelines. Briefly, the law provided for the decriminalisation of simple negligence of a physician on condition that he/she followed the guidelines and "good medical practice" while carrying out his/her duties, whilst the obligation for compensation, as defined by the Italian Civil Code, remained. Judges had to consider that the physician followed the provisions of the guidelines but nevertheless caused injury to the patient.

CONCLUSION

However, since the emission of the law, thorny questions remain which have attracted renewed interest and criticism both in the Italian courts and legal literature. Since then, several bills have been presented on the topic and these have been merged into a single text entitled "Regulations for healthcare and patient safety and for the professional responsibility of healthcare providers".

Clinical Practice Guidelines: An Opinion of the Legal Implication to Veterinary Medicine

The strengthening of the bond between humans and animals has changed the landscape of the veterinary profession. This has, in turn, led the legal system to assess damages in veterinary malpractice and liability cases more carefully, paying attention to the possibility of using clinical practice guidelines (CPGs) to prove whether the defendant veterinarian contravened or not the standard of care. In this era of evidence-based veterinary medicine, CPGs are becoming an integral part of many aspects of veterinary practice, even if CPGs do not have the force of law and are situated halfway between ethical rules and legal requirements. Although guidelines have been used for several years, there seems to be a general lack of recognition of the medical and legal ramifications of CPGs for veterinarians. This creates ambiguity and inconsistency in the care that veterinary practitioners provide, compromises the care animals receive, and prevents the courts from assessing veterinarian competence in a systematic and rational way. On the basis of these considerations, this article discusses the legal implications of CPGs in veterinary medicine for dogs and cats and explores how the law may treat CPGs in the future. Redefining the CPGs should be a priority for veterinary profession. NOTE: The authors chose to use the terms "companion animal," "pet," and "small animal" interchangeably throughout this article, as all three are commonly in use and refer to the same animals (dogs and cats).

The rebirth of medical paternalism: An NHS Trust v Y

Over the last quarter of a century, English medical law has taken an increasingly firm stand against medical paternalism. This is exemplified by cases such as Bolitho v City and Hackney Health Authority, Chester v Afshar, and Montgomery v Lanarkshire Health Board. In relation to decision-making on behalf of incapacitous adults, the actuating principle of the Mental Capacity Act 2005 is respect for patient autonomy. The only lawful acts in relation to an incapacitous person are acts which are in the best interests of that person. The 2005 Act requires a holistic assessment of best interests. Best interests are wider than 'medical best interests'. The 2018 judgment of the Supreme Court in An NHS Trust v Y (which concerned the question of whether a court needed to authorise the withdrawal of life-sustaining clinically administered nutrition/hydration (CANH) from patients in prolonged disorders of consciousness (PDOC)) risks reviving medical paternalism. The judgment, in its uncritical endorsement of guidelines from various medical organisations, may lend inappropriate authority to medical judgments of best interests and silence or render impotent non-medical contributions to the debate about best interests-so frustrating the 2005 Act. To minimise these dangers, a system of meditation should be instituted whenever it is proposed to withdraw (at least) life-sustaining CANH from (at least) patients with PDOC, and there needs to be a guarantee of access to the courts for families, carers and others who wish to challenge medical conclusions about withdrawal. This would entail proper public funding for such challenges.

Malpractice litigation in acute stroke care - where are we now?

Acute stroke care has undergone momentous changes in recent years with the introduction of intravenous thrombolysis, mechanical thrombectomy and integrated stroke services. While these are welcome developments, they also carry unique medico-legal challenges. In 2015, a patient from Greater Manchester was awarded over £1 million in compensation after ambulance paramedics failed to admit her to a specialist unit. This paper explores the medico-legal implications of this first but over looked thrombolysis-related claim in the United Kingdom. It is submitted that the highly time-dependent and multidisciplinary nature of acute stroke care may expose a host of healthcare personnel, both medical and non-medical, to risks of legal pursuit for failing to provide appropriate care, and that available scientific evidence will likely support such claims. The situation calls for an urgent and concerted effort at implementing improvement measures at national levels. A reminder of the legal consequences of substandard acute stroke care is timely and necessary.

Liability versus innovation: the legal case for regenerative medicine

Medical innovation occupies a position somewhere between standard practice and clinical research, but innovation is primarily intended to benefit an individual patient where standard treatment fails. Medical innovations in the area of regenerative medicine have the potential to completely transform medical practice, but rely upon some major revision to the nature of treatments beyond drug-based therapies. There is considerable investment in scientific and clinical research, but further attention could be paid to legal barriers to medical innovation imposed by the threat of medical malpractice. We survey in this article the legal framework for making determinations of medical malpractice in general, and highlight the issues specific to innovative treatments. In essence, liability could be imposed for failing to adequately inform the patient about the innovative nature of the suggested therapy or based on the fact that the risks outweighed the benefits. As for the latter, we examine whether liability is likely to be based merely on deviating from existing practice or on an examination on the merits of the treatments' risks and benefits. The facts that some risks are unforeseeable and some benefits are external to the patient complicate negligence determinations. The first fact relates to the problem of judging adverse events in hindsight; the second, to the obligation to make decisions based on the patient's best interest and avoid conflict of interests. In addition, we evaluate the relationship between the obligations to secure the patient's informed consent and to avoid clinical negligence. We identify the need for further research to examine the significance of the putative anti-innovation bias that current liability regimen has, and to examine whether a move to strict liability might avoid such bias, while being fair to patients who contribute for the advancement of medical knowledge by participating in innovative therapies.

Defensive medicine among obstetricians and gynecologists in tertiary hospitals

OBJECTIVE

To describe the daily work practice under the threat of defensive medicine among obstetricians and gynecologists.

STUDY DESIGN

A prospective cross-sectional survey of obstetricians and gynecologists working at tertiary medical centers in Israel.

RESULTS

Among the 117 obstetricians and gynecologists who participated in the survey, representing 10% of the obstetricians and gynecologists registered by the Israel Medical Association, 113 (97%) felt that their daily work practice is influenced by concern about being sued for medical negligence and not only by genuine medical considerations. As a result, 102 (87%) physicians are more likely to offer the cesarean section option, even in the absence of a clear medical indication, 70 (60%) follow court rulings concerning medical practices, and 85 (73%) physicians mentioned that discussions about medical negligence court rulings are included in their departments' meetings.

CONCLUSIONS

Defensive medicine is a well-embedded phenomenon affecting the medical decision process of obstetricians and gynecologists.

Clinical decision support systems could be modified to reduce 'alert fatigue' while still minimizing the risk of litigation

Clinical decision support systems--interactive computer systems that help doctors make clinical choices--can reduce errors in drug prescribing by offering real-time alerts about possible adverse reactions. But physicians and other users often suffer "alert fatigue" caused by excessive numbers of warnings about items such as potentially dangerous drug interactions. As a result, they may pay less attention to or even ignore some vital alerts, thus limiting these systems' effectiveness. Designers and vendors sharply limit the ability to modify alert systems because they fear being exposed to liability if they permit removal of a warning that could have prevented a harmful prescribing error. Our analysis of product liability principles and existing research into the use of clinical decision support systems, however, finds that more finely tailored or parsimonious warnings could ease alert fatigue without imparting a high risk of litigation for vendors, purchasers, and users. Even so, to limit liability in this area, we recommend stronger government regulation of clinical decision support systems and development of international practice guidelines highlighting the most important warnings.

English law for the surgeon II: clinical negligence

Traditionally, in the United Kingdom and Europe, the surgeon was generally not troubled by litigation from patients presenting as elective as well as emergency cases, but this aspect of custom has changed. Litigation by patients now significantly affects surgical practice and vicarious liability often affects hospitals. We discuss some fundamental legal definitions, a must to know for a surgeon, and highlight some interesting cases.

Review: the legal duty of care for nurses and other health professionals

AIMS AND OBJECTIVES

To explore the nature and extent of the legal duty of care in relation to contemporary healthcare practice.

BACKGROUND

The paper seeks to re-frame and update the legal duty of care for clinical nursing practice in the 21st century, taking into account collaborative and partnership working in healthcare practice.

DESIGN

Doctrinal legal 'approach'.

METHOD

'Black letter' legal research methodology used for data collection and analysis. Literature search using Westlaw and LexisNexis database(s) to identify recent common law decisions.

RESULTS

There has been a perceptible doctrinal shift away from paternalism and toward patient empowerment and autonomy in the last decade. This has implications for nurses and other healthcare professionals in terms of consenting patients and acting reasonably to ensure quality patient care.

CONCLUSIONS

A number of experienced nurses are currently assuming extended roles and some are completing medical tasks, traditionally allocated to doctors. These specialist practitioners must remember that additional responsibility invariably means increased professional risk and accountability. Therefore, it is essential that those engaging in advanced nursing practice, fully understand the nature and reach of their professional duty of care and the significance of statutory and common law developments.

RELEVANCE TO CLINICAL PRACTICE

Nurses and other healthcare professionals must update their clinical skills and practice within a legal framework and to certain standards. The cases cited and discussed are relevant to all branches of nursing and indeed to all health professions.

The Doctor in Claims for Work Injuries and Ill Health – Legal Pitfalls

Occupational health work is currently undertaken by the specialist and the non-specialist physician alike. The work scope can vary from medical assessments of individual workers to health risk assessment at the workplace. The scope of the latter will include evaluation of exposures, hazards, risks and its management to control these risks. Much of the case law governing legal disputes over industrial safety and health have involved the employers. Over the years, the actions brought forth by workers have resulted in a formidable volume of case law based on statutes and on the common law of negligence in tort. Disputes over the assessment of workers’ health or workplace health risks to the extent that it is a failure to discharge a reasonable standard of care, may result in the doctor being a defendant. Measures to prevent these legal pitfalls include communication with employers about the causative link of the illness suffered to workplace factors and the clarity of contractual obligations undertaken with regard to workplace health risk assessment. Key words: Duty of care, Mesothelioma, Occupational asthma, Standard of care, Tort

Medico-legal claims against English radiologists: 1995-2006

A list of claims against radiologists from 1995-2006 was obtained from the NHS Litigation Authority. It shows a total of 440 claims. The largest number of claims (199) related to delayed or missed diagnoses of cancer, and 73 claims related to breast radiology. There is a trend for a mild increase in the number of claims each year. 30 claims were made after a false-positive diagnosis of cancer. Just under pound8.5 million has so far been paid in damages, with a further pound5 million in legal fees. A claim for multiple missed diagnoses of breast cancer led to a pay-out of pound464 000 ( pound673 000 after legal fees); the largest sum awarded following a delay in the diagnosis of an individual cancer was pound300 000. The subtle legal distinction between error and negligence is reviewed here. The reason why breast radiologists are more likely to be sued than any other type of British radiologist is also discussed, along with the implications for UK radiological practice, particularly in light of the recent Chief Medical Officer's report on revalidation. A method is proposed that may protect radiologists from allegations of clinical negligence in the future.

Clinical practice guidelines

In the era of evidence-based medicine, clinical practice guidelines (CPGs) have become an integral part of many aspects of medical practice. Because practicing neurosurgeons rarely have the time or, in some cases, the methodological expertise, to assess and assimilate the totality of primary research, CPGs can in theory provide a vehicle through which neurosurgeons could more efficiently integrate the most current evidence into patient management. Clinical practice guidelines have been met with some skepticism, however, particularly within the neurosurgical community. Some have expressed concerns that the promise of CPGs has not been matched by the reality. Others who oppose CPGs fear that they hinder the art of medicine, and limit physician and patient autonomy. The purpose of this paper is to provide the practicing neurosurgeon with an up-to-date review of CPGs. The authors discuss some of the complexities and recent advancements in CPG development, appraisal, and publication. An overview of the various systems for grading medical evidence and issuing CPG recommendations, each of which has its advantages and disadvantages, is included, and the current knowledge on the impact of CPGs in 2 important realms, patient care and medicolegal issues, is discussed. The purpose of this review is to provide a balanced, current synopsis of what CPGs are, how they are developed, and what they can and cannot do. The authors hope that this will allow neurosurgeons to make more informed decisions about the many CPGs that will inevitably become an essential component of medical practice in the years to come.

Medicolegal issues in pathology

The various methods used by risk managers to assist clinicians in handling medicolegal risk, including improving communication with patients and better dealing with medical records issues, are not particularly of benefit to pathologists. An understanding of tort law, the theory of negligence, the principle of standard of care, and the role of the expert witness helps the pathologist generally assess and manage risk and put it into context with daily pathology practice. An understanding of the litigation process and techniques to better handle a deposition and high-risk specimens or diagnoses are of practical value in avoiding a lawsuit or increasing the likelihood for good outcome in medical malpractice litigation.