Proving Negligence
When patients have suffered as a result of mismanagement by doctors, proving medical negligence can be difficult. In order to prove negligence three criteria must be fulfilled. Firstly, there must have been a duty for the doctor to treat the patient. Secondly, there must have been a breach of that duty. This can be proved only if there is a recognised standard of care for a condition and it can be shown that that standard was not adhered to. Thirdly, damage must have been done as a result of the lack of correct treatment. Thus, an error of judgment may not necessarily be classified as negligence so long as the doctor's actions can be defended as being reasonable under the circumstances.
For an example,consider this scenario. A 65 year old man with a long standing history of angina presented to accident and emergency at 10 30 am, having had his usual angina pain. By the time he was seen in accident and emergency his pain had gone. It had lasted for 10 minutes and responded fully to the glyceryl trinitrate spray given by the paramedics. This,along with a thorough cardiac history detailing drugs, exercise tolerance, and other relevant factors, was recorded by the accident and emergency senior house officer. His vital signs were stable and no abnormalities were found on examination. A chest radiograph and a 12 lead electrocardiograph both appeared normal. The patient was then discharged from accident and emergency with a diagnosis of angina pectoris. Later that evening he collapsed and died of a cardiac arrest
The doctor managed this case appropriately, and this would not be considered a case of medical negligence. Some doctors might advocate that the man should have been admitted to hospital, and therefore the decision to discharge him would be considered an error of judgment. A thorough history and examination were taken, however, and appropriate investigations were performed and clearly documented in the notes. The three criteria for proving negligence are clearly not demonstrated here and thus, the doctor's actions could be successfully defended. However, if, for example, an electrocardiograph had not been taken the case would have been difficult to defend.
Golden rules of record keeping in accident and emergency |
Remember writing notes is constructing medical defense and medical notes are legal document. · The notes must be legible · No record = not done · Relevant negative results are as important as relevant positive results · Never use derogatory or insulting terms · Document the results of investigations · Give your diagnosis · Have a clear management plan · Outline procedures performed · Record adverse events |
Essential documentation
Accurate note keeping will help in your defence against a complaint of any form. The two most common forms of complaint received by accident and emergency departments relate to waiting times and alleged rudeness of staff. Despite your protestations that you did something, a court of law may take the line that if it is not in writing it has not been done. This may seem excessive but it ensures that you consider carefully all aspects of the case. The standard of documentation varies widely among doctors and may vary depending on physical or mental state, the time of day, and the number of patients seen. It is human to err but, unfortunately, this may not be an adequate defence for alleged malpractice.
Steps for minimising risk of claims for medical negligence |
Establish protocols for patient management Regular formal teaching of junior staff Adequate supervision and appropriate delegation of tasks (" see one, do one, teach one" is no longer acceptable) More consultant involvement in shop floor work Accurate record keeping Tactful handling of patient complaints Watertight recall system |
As a guide to safe and accurate documentation you should always include the following points.
Patient Details
All accident and emergency record sheets should contain the patient's name, address, date of birth, sex, religion, telephone number, next of kin (with contact address and telephone number), name and address of general practitioner, date and time of attendance, and mode of arrival.
History
Notes that are legible make it considerably easier for the accident and emergency consultant to answer any complaint. The first thing to note is the time that you saw the patient. The history should be clear,concise, and relevant to the presenting complaint. Reams of information, as found in house officers clerking notes, are not appropriate in most cases. Documenting aspects of the history in the patients own words may be relevant- for example, " he hit me with an iron bar." This may be important as a patient could deliberately give you an incorrect or misleading history because of embarrassment or because of police involvement, and this may cause you to miss a diagnosis.
Relevant negative responses as well as important positive ones should be included- for example, the absence of neck pain in a patient with ahead injury. Past medical history, drugs, tetanus status, allergies,social history, and systems review may not be relevant to every patient but each one of these must be considered and if relevant they should be documented. For example, an 80 year old patient with a minor injury may require admission to hospital because of frailty and lack of social support, and a social assessment would therefore be an essential part of the history for most elderly patients attending accident and emergency. If you cannot obtain a history from the patient because of drug intoxication, head injury etc, you should state this in the notes and identify who has provided you with information- a relative or ambulance staff.
Examination
A comment relating to the patient's overall demeanour is usually helpful. If the patient is obviously drunk and obstreperous you should try to obtain a breath alcohol sample to back up your observations.This should be recorded with a comment such as " strong smell of alcohol and uncooperative behaviour consistent with alcohol intoxication," rather than " obnoxious drunk." Remember that patients have a right to see their medical notes, and if they see insulting comments they may become more determined to pursue their complaint. Standard observations of pulse, blood pressure, respiratory rate, and temperature should be recorded for any patient who is unwell. A glucose dipstick reading is essential in any patient with a reduced score on the Glasgow coma scale or who is acutely confused. As with the history, it is important to document any important negative findings as well as positive results- for example, the presence of normal sensation and tendon function distal to a wound or normal shoulder and elbow joints in a patient with a more distal wrist injury.
Some patients presenting with the same complaint will require different examinations- for example, a footballer presenting with a head injury after a clash of heads who cannot recall what happened to him will require examination of his head, neck, and nervous system, whereas an elderly patient who sustained a head injury but who cannot recall the events leading to it will require examination of all systems to try to find a cause for the fall as well.
Documentation of injuries can be greatly helped by diagrams. Ideally the accident and emergency sheet should have body templates, but figure stamps can also be used. If neither of these are available use your own drawing skills, no matter how limited they are. These will greatly help you when it comes to giving evidence later on. Be careful to use the correct terminology when describing injuries- for example,an incised wound (a full thickness breach of the skin caused by a sharp object) is different from a laceration (a full thickness breach of the skin caused by a blow with a blunt object). Give an approximate measurement of the wound or bruise but do not try to estimate the age of a bruise, describing the colour will suffice.
Appropriate investigations with results should be clearly documented.If you perform an investigation that will influence your treatment of a patient you must show in the notes that you have seen the result and acted accordingly. This is particularly important if you are discharging the patient. There is no point in measuring serum amylase concentration in a patient with abdominal pain if you discharge the patient before the result comes back because you think it is going to be normal. If the concentration is raised you face considerable embarrassment in trying to recall the patient.
Diagnosis and Treatment
A diagnosis, with or without a differential, is necessary to justify the subsequent treatment. A clear management plan with appropriate treatment including drugs (with doses) and discharge information and follow up concludes the record. A procedure such as exploration of a wound should be accompanied by a description of the type and volume of local anaesthetic used, the extent of the damage ordebridement, and the type and number of sutures used. If a tiny foreign body such as glass cannot be located in a wound and is being left in situ, record that the patient is aware of this and has been advised about possible infection or delayed healing.
When you are discharging patients from your care always advise them tore turn if they are concerned or unhappy with their progress and document this in the notes as " advised to return if required."
It is always worth trying to discuss with the patient how long you think it will be before he or she feels better. If they have had stitches they should be told when to have them removed and where they should go to have this done. This should also be documented in the notes. If patients have non-specific or more chronic problem it is useful to suggest that they visit their general practitioner if they do not get better or start feeling worse. You should write in the notes" advised to see GP if symptoms do not improve."
Two examples of accident and emergency records for the same patient |
Bad 30 Year old female c/o Right wrist pain after fall O/E: swollen wrist with tenderness x ray: normal R (x): Tubigrip Analgesia Discharge Good 30 Year old female c/o Right wrist pain after fall on outstretched hand no shoulder or elbow pain Right handed typist Allergies-nil known O/E: moderate swelling over dorsoradial aspect of wrist with maximal tenderness at ASB wrist movements reduced++, weak grip,shoulder/elbow normal x ray scaphoid: no # seen Diagnosis: possible scaphoid # R x: Spencer wrist support Cataflam 50 mgm po tds # orthopaedic Clinic review 2/7 |
Difficult Behaviour
Note any events such as verbal or physical abuse from a patient or relatives, with the names of any witnesses. If patients discharge themselves they should be requested to sign a form to that effect,and refusal to do so should be clearly documented.
Risk management
Risk management involves identifying, assessing, and defining strategies to deal with situations that may lead to complaints or claims of medical negligence. The box gives the steps that should be taken to minimise risk
Medical students in accident and emergency
Medical students often have formal attachments to accident and emergency. While there you should take histories from and examine patients and present cases to the doctors. However, you should not write on the accident and emergency notes but on a separate sheet of paper which does not form part of the official accident and emergency record. This ensures that the doctor does not take any short cuts in assessing patients and fully documents the consultation as normal. A doctor writing " history and examination as above" is not an acceptable addition to a student's assessment. If you perform a procedure on a patient, such as suturing of a minor wound, you should be fully supervised by a doctor and the procedure should be documented in the notes by the doctor.
Suggested Readings:
1 Smith R. The epidemiology of malpractice. BMJ 1990; 301 :621-2.
2 Gwynne AL. Patients, doctors and lawyers. Proc R Coll Physicians Edinb 1994; 24 :60-4.
4 George J E, ed. The ED record: legal implications. Emergency Physician Legal Bulletin 1984; 10 (2).
5 Trautlein J, Lambert R, Miller J. Malpractice in the emergency department- review of 200 cases. Ann Emerg Med 1984; 13 :709-11.
6 Fosarelli P, Baker MD. What you don't record can hurt you:documentation in the emergency department. Pediatr Emerg Care
