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The Surgeon’s guide to staying out of Court
- Aug 26, 2021
- Latest Journal
By Chris Dawson MS FRCS LLDip, Consultant Urologist
There are a number of regular themes in Medical Negligence work in Urology. This brief article shares the author’s experience in writing reports on this area over the last 17 years.
Whilst a lot of reports in Medical Negligence work appear due to a clear breach of duty, in the author’s opinion many are not.
Oftentimes patient dissatisfaction can turn from a hospital complaint, and then onwards towards a civil claim.
How can this chain of events be broken?
In many cases the problem (if there is going to be one) starts with the initial doctor-patient consultation. This will often get off to a good start if the Surgeon greets the patient with a smile (and prior to Covid 19 a handshake!), and asks how their journey to the hospital went.
Whilst this might be another busy day for the Surgeon, for the patient it is their possible one opportunity to get across their version of events. It is important for them to be heard, and therefore vital that the clinician listens with empathy and, most importantly, without interruption.
One pearl of wisdom gained by the author from a course on preventing litigation was, “Patients don’t care how much you know, until they know how much you care”.
When it is the Surgeon’s turn to speak it is important to communicate in clear simple language, and to allow time for questions from the patient. Use of patient information sheets is highly recommended, particularly when it relates to an explanation about a forthcoming surgical procedure. Clear contemporaneous notes are a vital source of information when it comes to defending a claim.
If an operation is scheduled then best practice suggests that consent should be taken in the outpatient clinic. However most clinicians will recognise that this is often not possible in the context of a busy outpatient clinic.
The letter to the GP is a vital part of the communication process. It is imperative from the Surgeon’s perspective that the letter contains all details of the conversation that took place with the patient. If a surgical procedure is planned then a record of the discussion with the patient about the risks of the procedure should be part of the clinic letter, and acts as an important record source should there be a later medical negligence claim relating to the consent process.
The case of Montgomery v Lanarkshire in March 2015 changed the law of Consent. Much has been written on this subject and the author recommends that all Surgeons make themselves aware of the ramifications of the judgement in this case. The Royal College of Surgeons guidelines on consent are a good starting point (https://www.rcseng.ac.uk/standards-and-research/standards-and-guidance/good-practice-guides/consent/).
One of the most important points about consent is that it should be written and recorded. Most available consent forms need to be filled out by the Surgeon, and it is vital that all material risks are recorded in the relevant section. Too often in medical negligence cases this section has been left blank! The use of procedure specific forms, such as those produced by the British Association of Urological Surgeons, are helpful in this regard.
Evidence suggests that doctors who explain things clearly, give plenty of information, are caring and kinds, and who spend time with their patients, are less likely to be the subject of a complaint by a patient.
When a complaint does occur it is important that Surgeons remember that a Professional Duty of Candour exists (https://www.gmc-uk.org/ethical-guidance/ethical-guidance-for-doctors/candour---openness-and-honesty-when-things-go-wrong/the-professional-duty-of-candour).
Having an open and honest conversation with the patient at an early stage, and apologising where appropriate is therefore good practice, and may lead to a resolution of a complaint before it escalates into court action.