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Individual and Organisational Responsibility for Adverse Clinical Outcomes
  • Oct 25, 2023
  • Latest Journal

Mr Martin Brett MB BS, MA, FRCS, ChM Consultant General and Gastro-Intestinal Surgeon

I have been a Consultant for 28 years, the first 22 of these being primarily in the acute (NHS sector) before practising solely in the independent Sector. For most of my consultant career I have carried out Expert Witness work, although more so over the last 6 years. I have also had Clinical Governance roles in the last 8 years. Clinical Governance encompasses many different areas, but my own involvement has mainly centred around investigation of adverse clinical events, some serious (Serious Untoward Incidents – or SUIs) where a Clinical Negligence Claim may also be made. Below are some of my reflections and views on these two roles, how my work in one may have influenced the other and how organisational responsibilities may feature in the claims process.

Many of my Clinical Negligence instructions are to provide an opinion on whether individual doctors have breached duty in their care of a patient, and whether this has caused an adverse clinical outcome. Such Expert Witness investigations are usually based on a desktop review of clinical records, possibly supplemented by Witness Statements. Most of my instructions have been by a Claimant’s Party taking legal action against an NHS Hospital Trust and this will be the context for my discussion below. The legal test I am frequently instructed to apply to determine Breach of Duty is whether “care was of a standard that could reasonably be expected of a reasonably competent doctor in that role and situation”. I take this to include “at that time”. I believe it to be recognised that the vast majority of doctors make a mistake or an error of judgement at some stage, so maybe this test should include performance that could reasonably be expected on the “majority” or “substantial majority” of occasions. I gather it is widely accepted that determining causation is based on balance of probability. In addition, I am usually asked to identify and provide an opinion on “any other issues or areas which I believe could be relevant” to the claim. My view may be that I concur with one or more of the alleged breaches, or that there is no breach at all. Sometimes my opinion is that there is an additional Breach of Duty beyond those alleged in the instruction, which may be the only Breach. I use the “any other issues” section to describe this, but are there other factors to consider?

For a SUI investigation the key investigatory method is usually an analysis of root causes and contributing factors (RCA) based on both clinical records and interviews with those involved. I usually have some familiarity with the host organisation. Although often reported to be a “blame free” approach, responsibility has to be apportioned for each root cause / contributory factor. The overall impact / level of damage as a result of any shortcoming in care must be quantified. The key declared goal is to improve care by identifying the continuing risks which could result in a recurrence of the adverse event, or other related adverse events, and suggesting action plans to manage identified risks. The significance of a risk is not based on any threshold. Low likelihood risks can, and should, still be identified and considered, and the importance of a risk does not need to be tied into issues of causation in the particular case.

When risks can be related to individual performance, I have found that a Breach of Duty / Causation report and a SUI investigation report can be quite similar. However, if an Expert Witness investigation concludes that there has been a failure in individual performance the reason is rarely established. From my SUI investigation work I have found that the reason for individual failure is variable. On rare occasions there is a capability issue. However, important contributing factors may be, for example, education and training deficits. In hospital practice where a significant amount of care is delivered by doctors in training, educational input can be poorly targeted towards clinical risks as well as inadequate. Junior doctors always have a supervising consultant, but the supervision may be insufficient. Whose role is it to ensure that education and supervision are adequate?

“Leadership failure” rarely features in Expert Witness investigation but looms large in RCAs, often due to a failure to clarify roles and responsibilities. “The                  Responsibility Poem” by Charles Osgood illustrates this well. A widely published paraphrase is:
“Whose Job Is It, Anyway?” "This is a story about four people named Everybody, Somebody, Anybody and Nobody. There was an important job to be done and Everybody was sure that Somebody would do it. Anybody could have done it, but Nobody did it. Somebody got angry about that, because it was Everybody’s job. Everybody thought Anybody could do it, but Nobody realized that Everybody wouldn’t do it. It ended up that Everybody blamed Somebody when Nobody did what Anybody could have."

Such failure can mean, for example, that patients may not get clinical reviews, investigation results may not be acted on, hand over communications may be insufficient. The consequences can be disastrous. Effective leadership should be the solution, but who should be the leader and who is responsible for ensuring there is a leader?

In addition, I believe it to be widely accepted that a certain level of human error is inevitable. Therefore, increasing safety also depends on addressing factors which might increase the likelihood of individual error (contributory factors) and introducing measures to prevent an error resulting in an adverse consequence, or mitigating any such consequence. Much has been learnt from the airline industry. Examples of such strategies include:
1. Safety checking procedures. WHO Surgical Safety Checklist is a well-known example.

2. Policies / Pathways for high-risk clinical situations such as sepsis.

3. Alerting systems for markedly abnormal results.

4. Formal handover procedures to ensure effective communication on shift change.

From my RCA experience, I have concluded that effective organisational risk management must be driven by senior individuals with specific responsibility to quality assure and drive quality improvement.

I believe that carrying out Expert Witness work has improved my ability to assess individual performance and its impact accurately and objectively in a SUI investigation. My approach has, on occasions, been seen as harsh, hence not universally liked, but I believe it has been respected and considered useful. However, in addition, I have always tried to add to this a thorough analysis of “non-dominant” root causes and contributory factors, many of which fall into the categories above. I think this has provided some sense of equity and fairness.

The converse of this is the impact my Governance work has had on my Expert Witness work. I do not find evidence of failure of any kind in all cases but where failure has occurred, my insight has increased into the organisational back story. While I cannot assess all the factors from a Clinical Record and Witness Statements which relate to an organisation of which I do not have prior knowledge, I am more able to extract evidence of some of these failures, particularly poor leadership, supervision, communication, and safety checks.

In my ideal world, the legal test for assessing the care in a hospital would be whether “care was of a standard that could reasonably be expected of a reasonably competent hospital providing those services in that     situation”. Some adverse events may still be due to individual error without contributing factors, but many are more complex. I do not propose that individuals should not be accountable and responsible for their actions, but I would welcome the group / organisational factors, if they can be evidenced, being equally considered. I have sometimes used the last section of my instruction “any other issues or areas which I believe could be relevant” to include these considerations. On a couple of occasions these have been included in a Letter of Claim / Particulars of Claim. I plan to continue this practice.

I am not trained in claims management and realise that there may be practical difficulties in including organisational failings in the claims process, possibly including an increased requirement to obtain expert opinions from other healthcare professionals. I understand that legal professionals managing Claim or Defence have clear responsibilities to their clients and may have found that arguments outside individual breaches of duty and causation are difficult to use, or ineffective, in Pre-action or Court processes. However, it is also possible that they may not be more widely used because Expert Witnesses, such as myself, have not provided the basis for them. I will always aim to provide objective opinion within the limits of my expertise and instruction, but I will welcome the opportunity for that opinion to be as full and inclusive as possible.