When things go wrong

GP expert witness and aesthetic doctor Dr Sam Al-Jafari looks at why patients sue and how to protect yourself.

In medical practice, those who treat patients are at risk of litigation resulting from perceived or real failures in care. We want to do the best for our patients, however, mistakes and complications can happen, and patients may be unhappy despite our best efforts. Fear of complications, legal claims or loss of professional registration create anxiety and impact confidence to practice.

Aesthetic medicine is a somewhat unique speciality in that the procedures that we carry out are often not directed at an underlying pathology but rather performed at a patient’s request to enhance their physical and mental well-being. This creates higher expectations of the practitioner, patient journey and results.

CLINICAL NEGLIGENCE AND THE LAW

Clinical negligence is an area of civil law called tort that allows individuals who have had a wrong committed against them to claim compensation from the person who has committed it.

For a claim of negligence to be successful, the claimant must establish three things: 1. Duty of care 2. Breach of duty 3. Causation

All clinicians owe a duty to provide care to their patients at a level reasonably expected by someone competent in their field. A breach of duty occurs when a clinician’s actions fall below that. The legal test applied is the Bolam Test which states that: ‘A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art…’ Putting it the other way round, a clinician is not negligent, if he/she is acting in accordance with such a practice, merely because there is a body of opinion who would take a contrary view.

A clinician must show that they acted in a way that a responsible body of their peers in the same field would regard as acceptable. To that end, any claim could be easily defended if you can show that your actions were consistent with published professional or clinical guidelines.

Mistakes do happen and not all of them represent a breach of duty. The courts clarified the position in 1980 when it was ruled in the case of Whitehouse v Jordan [1981] that:

‘If [an error] is one that would not have been made by a reasonably competent professional man professing to have the standard and type of skill that the defendant held himself as having, and acting with ordinary care, then it is negligent. If, on the other hand, it is an error that such a man, acting with ordinary care, might have made, then it is not negligent’.

In practice, courts will rely upon independent expert witnesses’ opinions to advise as to whether actions met the standard of a ‘reasonably competent practitioner’ or whether a mistake could have occurred even with careful practice. For example, a single post-treatment infection may not be grounds for a negligence claim, however, practitioners with a statistically greater infection rate than would be anticipated by chance may be scrutinised and assumed to have breached a duty.

Where parties present disagreeing expert opinion, it falls to the judge to determine which expert’s opinion is preferred and there is precedent for the judge to reject a body of medical opinion if they determine that that body of opinion is very small and opposed to conventional views.

In matters relating to advice and consent, clinicians are held to a higher standard. The ruling in Montgomery v Lanarkshire Health Board [2015] was that it was insufficient for doctors to only warn patients about risks in line with a responsible body of medical opinion, but that they should share all material risks to which a patient would attach significance. This has important implications in the context of Aesthetic Medicine as the consent process must recognise the patient’s circumstances when it comes to providing information. The clinician is expected to identify risks, no matter how negligible, that would be important to the individual patient and their unique circumstances.

Finally, if it has been shown that a duty of care has been breached by the clinician, the claimant must show that this breach has caused them material harm such as physical, psychological, or financial loss for which they should be compensated.

Rarely, if an act of negligence is so reckless as to be seen as a deliberate attack on the patient, then it becomes a criminal matter in which case sanctions from regulatory bodies are also likely.

WHY PATIENTS SUE

The motivations of unhappy patients to make a claim vary. The field of aesthetic medicine is growing and poorly regulated. This has not escaped the attention of ‘no win, no fee’ lawyers who proactively seek clients with the promise of compensation. Patients may seek to protect others from what they have experienced, whereas others may seek retribution or a desire to hold the practitioner to account. Some are simply opportunistic.

Not all patients who are unhappy or who suffer a complication will pursue a claim against their practitioner. By understanding the factors that influence them, we can go about mitigating that risk.

In a study of patients who had made claims against the NHS, it was found that most felt that explanations and apologies were poor or non-existent and that insufficient actions had been taken to prevent future incidents affecting others. Perceived dishonesty, poor communication or lack of professionalism were also cited by patients and several suggested that more appropriate reactions, explanations, and apologies would have prevented the need for a claim.

Bear in mind these behavioural aspects when dealing with complaints and complications.

PROTECT YOURSELF

Indemnity insurance is essential. Failure to be appropriately covered for the whole scope of your practice is a breach of GMC/ NMC guidance and may be illegal. Insurers take on the financial risk in the event of legal action and some policies offer cover for proceedings taken by regulatory bodies. Read your insurance policy to understand your level of coverage.

Ensure that you have evidence of training in the treatments that you offer. Practitioners should work within their competency, generally adhere to manufacturer guidance, and use products that are licensed.

In aesthetic practice, the use of products ‘off-label’ is commonplace – for example, the use of neuromodulators in the lower face. In such cases, the practitioner should heed MHRA guidance that off-label medicine should meet acceptable standards of efficacy, safety and quality and be prescribed in the patient’s best interests. The Joint Council for Cosmetic Practitioners (JCCP) advises that ‘consideration should be given to documenting the rationale for the prescribing decision, including its evidence base and confirming that this has been discussed with the patient’.

Patient selection can limit litigation risk. Avoid treating those who exhibit ‘red flags’ such as unrealistic expectations or poor adherence to boundaries. Patients in whom you suspect body dysmorphic disorder should be screened using a validated scale e.g. the Body Dysmorphic Disorder Questionnaire. Those patients should not be offered treatment and you should not treat patients if you do not believe the desired outcome or overall benefit will be achieved. Learning to say ‘no’ can protect you against future headaches. In those that you plan to treat, expectations should be managed and all possible outcomes including treatment failure should be discussed and documented.

Aesthetic practitioners do not usually have access to their patient’s medical records so a full medical and social history should be documented before offering treatment. A claim made against a practitioner who failed to do so and provided a contraindicated treatment would be indefensible.

The contemporaneous record will be relied upon by the court in a negligence case. Documentation should be made on the principle that ‘if it’s not written down, then it didn’t happen’. ‘Before and after’ photographs are a pre-requisite for most insurers and, in aesthetic medicine, a picture is worth a thousand words. Details of pretreatment and aftercare advice should be recorded, and copies provided to the patient along with details of what to do in case of a complication and who to contact.

The consent process is more than a signature on a form. The practitioner should refer to GMC guidance on ‘decision making and consent’ which encompasses a patient-centred approach. Patients should never feel pressured or induced into agreeing to treatment and a coolingoff period should be offered to all patients before treatment. A robust consent form will provide a solid defence whereas a weak one may be exploited by lawyers.

As handlers of sensitive health and personal data including photographs, adherence to GDPR is mandatory. Ensure that systems or software providers meet the standards. Data or confidentiality breaches may result in fines or litigation.

Complications resulting from treatment do not necessarily constitute a breach of duty however failure to appropriately manage complications does. Be prepared and equipped to deal with possible complications relating to treatments that you carry out. This includes having an emergency medical kit and systems in place to seek advice and refer to if needed. The prudent practitioner should take training in complications management and join a complications support group such as CMAC.

CONCLUSION

The adage that prevention is better than cure applies. Good communication, diligent practice and meticulous documentation can help avert litigation. If something goes wrong, don’t bury your head in the sand and hope that the problem or patient will go away. This is only likely to encourage negative, alternative recourse. Communicate with and support your client but also contact your insurer at the earliest opportunity as they will offer advice and support to limit the impact of an unhappy patient on you and your business.