Guide. Support. Defend.

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MDU Services Limited (MDUSL) is authorised and regulated by the Financial Conduct Authority for insurance mediation activities only. MDUSL is an agent for The Medical Defence Union Limited (MDU). MDU is not an insurance company. The benefits of MDU membership are all discretionary and are subject to the Memorandum and Articles of Association.

MDU Services Limited, registered in England 3957086. Registered Office: 230 Blackfriars Road, London SE1 8PJ 2013 MDU204-1306

MDU Services Limited230 Blackfriars RoadLondon SE1 8PJ

For membership queries

Visit themdu.comEmail membership@themdu.comCall freephone 0800 716 376

@the_mdu

Report &

Accounts 2012

You cant buya great reputation.

Nicholas Tennant BA

Tamsin Thomas MA

Alison Troake BA Law

Victoria Wilson LLB

Medical claims

Jill Harding

Sharmala Moodley MB BCh BAO MFFLM LRCP&SI

Lucy Baird MB ChB

Patricia Cassidy LLB(Hons) PgDip LPC

Grace Cheung BSc MB ChB MRCS

Alison Cooper MB BS FRCA MFFLM

Chris Craig LLB(Hons) DipLit DipLPC DipCII

Hilary Halfpenny BA(Hons) PGCE

Pamela Hutchinson LLM PGDipHealthcare Ethics Cert CII

Lee Lewis

Julia Matulewicz-Boyle LLB(Hons) LLM Cert CII

Lynne McNamara LLB(Hons)

Andrew Norman

Glynis Parker MB ChB FFARCS DRCOG

Thomas Petty BSc(Hons) MB ChB(Hons) FRCA

David Pranklin

Tim Punshon ACII

Donal Quinn ACII

Joe Schmid MA LLB(Hons) PGDip(BPTC)

Louise Smy MB ChB MRCP MRCGP MA

Frances Szekely MB BS FFFLM

Charlotte Taylor LLB(Hons) PgDip LPC

Catherine Thompson MB BS MRCP(Paeds) MA

Claire Wratten BA(Hons) MA MB ChB MRCP MFFLM

Consultants

Catherine James MB ChB FRCOG FFFLM

Julia Neild MB BS(Hons) FRCP FFFLM

Peter Schtte MB ChB FRCP FFFLM MRCGP DMJ DA DRCOG

The DDU

Dental advisory

Rupert Hoppenbrouwers BDS LDSRCS

Bryan Harvey BDS DGDP

Leo Briggs BDS MSc

Angela Harkins BDS MPhil

Deborah Herbst LDS DDPH RCS BDS MDentSc MPH

Alison Large BDS MFGDP(UK)

John Makin BDS PGDipLaw

Susan NJie BDS

Mark Phillips BDS LDSRCS

Nicholas Torlot BDS FDS RCS(Eng)

Penny Vasey MBE BDS DGDP(UK)

Dental claims

James Breese LLB(Hons) PgDiP(LP)

George Ducros Cert CII(Claims) Dip Econ

Richard Grimmett BA(Hons) DipLPC

Samuel Hedges BSc(Hons)

Amelia Lunning LLB(Hons)(Exon)

Ian McLaren ACII

Taiye Omo-Ikerodah LLB(Hons) ACII

Adam Penny BSc(Hons)

Underwriting

Pierre Campbell BSc(Med Sci) MB ChB MBA DIC MRCS

Rupert Lee MB BS MRCGP DOccMed

Brigid Simpson MB ChB MRCGP MFFLM

Case decisions and Scottish affairs

Hugh Stewart MB ChB MRCGP LLB MPhil FFFLM DipLP

Emma Cuzner MB BS DFFP LLM MFFLM DRCOG DTM&H

Knowledge and information management

Gwenda Sippings M.Lib FCLIP

Government and external relations

Mary-Lou Nesbitt

Marketing, sales, corporate business and media relations

Nicola Turner MCIM MBA

Nicholas Gleeson BSc(Hons) ACA

Dawn Boyall BSoc Sc(Hons)

Actuarial, finance, IT

Anthony Wright BA DPhil FIA

Leslie Paster BSoc Sc(Hons) ACA

Robin Saunders FCMA MBA

Stephen Ramsden MSc

Membership and project management

David Cardno ACIB

HR manager

Sheila Glass Chartered MCIPD

Facilities manager

John Nicholas MBIFM

Risk assurance

Victoria Brinkley BA(Hons) CMIIA CFIIA

69

But you can defend it.

Report of the chairman

Claims review

Advisory review

Dental review

Legal review

Cautionary tales

Operating and financial review

Directors report

Accounts

Notice of annual general meeting

02

06

08

10

12

14

34

40

64

44

Contents

Report of the chairman

Dr Peter WilliamsChairman of the board of managementand President of the MDU

02

Report of the chairman

The very nature of our business means that members usually contact us when they are in difficulties. When that happens, members need us to respond quickly and appropriately with expert advice and empathy.

03

The quality of the service we give matters greatly both to the member and to us. During my 16 years on the board of management I have seen the commitment and effort which goes into making every contact with members productive and helpful.

Not only do we pride ourselves in being the largest medical defence organisation in the UK, but in always endeavouring to provide the best and most responsive service.

2012 saw a further substantial increase in demand for our service in the claims, advisory and legal departments. Dr Christine Tomkins, in her operating and financial review of the year, fleshes out this increase in figures and offers some explanations for the year-on-year rise.

It is, of course, a reflection of the difficulties faced by you all in your professional life in a sea of rising expectations. Never has it been so important to belong to an organisation which has your interests at heart. Not only has the volume of complaints risen, so has the number of referrals to regulatory bodies like the General Medical Council (GMC) and General Dental Council (GDC). That tide of criticism is part of a wider societal issue, in which increasingly there is a demand for people, as well as organisations, to be held accountable when things go wrong.

90%Over

of members facing GMC or GDC complaints, assisted by in-house lawyers, avoided referral to a fitness to practise (FTP) hearing

04

During the year, we have met this increased demand by expanding and improving our services.

Our in-house legal team has now grown, employing 23 specialist solicitors. Charles Dewhurst, in his legal review, comments on their singular success in representing members at the GMC, the GDC, in the courts and at tribunals and inquests.

Similarly, in the claims review, Jill Harding explains how her team has kept pace with rising demand, continuing to rebut around 70% of all claims brought against members and also successfully defending over half of the cases that reach the high court. Of course in some cases it is appropriate that damages payments should be made and in a small but growing number of cases, the damages awarded are very high indeed. Usually, this is because the claimant requires life-long care, such as a brain-damaged child or a patient who is left paraplegic following surgery, and this can be compounded by compensation for loss of future earnings. It makes sense to give particular attention to high value claims and so we have established a high value claims unit, led by Dr Sharmala Moodley, deputy head of the claims department, to better understand and deal with these cases.

On the medical advisory side, Dr Michael Devlin details the work of his team. Members contact our 24-hour advisory service for help with a wide range of medico-legal issues arising from their clinical care of patients. Members will always be put through to someone who is medically qualified, with substantial experience of working in clinical settings, and often with additional qualifications in legal and ethical matters. Wherever possible, members are encouraged to remain in contact with the same adviser until the concern is resolved. It is attention to detail, such as availability and speed of service and offering advice that is personal and specific to the members situation, that makes our advisory department so successful in meeting members needs.

Rupert Hoppenbrouwers, head of the DDU, outlines the work of the dental team in his review of the year. Our dental members have faced challenges unique to their discipline and Rupert describes how the DDU team has supported them.

05

The MDU Council

Three long-standing members of Council left during 2012. I would like to thank Professor Jennifer Adgey, Mr Ian MacKenzie and Dr Reuben Prasad for their assistance over many years, for their authoritative opinions and for the balanced advice they have given the MDU. I will personally miss their contributions at the cases committee.

We are joined by two new members Professor Kevin Channer, cardiologist and honorary professor of cardio-vascular surgery at Sheffield Hallam University and Professor David Sowden, director of Medical Education for England and an experienced general practitioner.

The board of management also welcomed two new members. Dr Christine Heron, consultant radiologist at St Georges Hospital, in 2012 and Mr Ian Hutchinson, former director of corporate finance at Royal Sun Alliance, who took up his position in 2013. Both bring very valuable experience to our Board.

Finally, I would like to pay a warm tribute to my predecessor, Dr Christopher Evans. During his tenure, Chris oversaw many changes in the company and left it on a very sound footing for members. His skill in chairing the Board and ensuring that the Board functioned well in the interests of members has given me an excellent legacy to build on. We are all indebted to him and wish him well in his retirement.

Dr Peter Williams

Chairman of the board of management

and President of the MDU

Giving accurate and up-to-date information is an important aspect of our work and we meet our members need for this in a number of ways. Our CPD-accredited education courses, held in London and Manchester, on key medico- and dento-legal topics are proving increasingly popular. A recent medico-legal roadshow held in London was so over-subscribed that we hosted another. Our advisers and liaison managers also travel to hospitals and practices around the country offering help and support to doctors and dentists.

In a technology-driven world, our members are increasingly looking to our website for help. Redesigned at the end of the year, the website includes our regular advice articles, and new sections such as a detailed question and answer page on revalidation, an interactive module to help our GP GROUPCARE practices meet the requirements of the Care Quality Commission (CQC), and online learning modules focusing on medical and dental ethics. This has attracted praise from many who have used it.

The MDU continues to champion the interests of members by making strong representation to government and the regulators on issues of concern to the profession as a whole. A multi-disciplinary team at the MDU examines and responds to all consultations and proposals for change that potentially affect members. We are also in regular discussion with the regulators on matters relating to fitness to practise procedures, including the GMC pilot scheme for meeting doctors early on in the complaints investigation process. We believe the scheme is likely to have a positive impact, resolving issues at a much earlier stage and sparing some members the rigours of a formal hearing.

Financially, the companys focus has always been on investing our members money wisely and effectively to ensure the company maintains its financial strength to meet future challenges. At a time of economic turmoil, when defence costs are spiralling, I am pleased to report that your company continues to be in a secure financial position, as the years accounts and operating and financial review show. We are in a robust position to face future challenges from whatever quarter they arise.

As to our standards of service, be assured they will remain high. There is a commitment from every member of staff to give gold standard levels of service. Knowing you can call on that service at any time, should give you an extra measure of confidence in your day-to-day practice.

specialist solicitors

medico & dento-legal advisers

2346

means they are able to recover success fees from defendants in cases where damages are paid. The percentage of medical claims we receive each year that are funded in this way has increased substantially, from 5% in 2004 to 48% in 2012. The costs reforms, introduced in April 2013, based on the recommendations of Lord Justice Jackson, will change the way in which clinical negligence claims are funded. We shall be monitoring the impact carefully to see if the aim of better proportionality between damages and costs is achieved.

2012 was a busy period for the claims team with more members than ever finding it necessary to contact the MDU in relation to patients seeking compensation.

Claims review

New claim notifications coming into the department increased by 20% over the previous year, compared with an average 8.6% increase for each of the four years 2008-2011. Claims against general practitioners and dentists saw a particularly sharp increase. This figure includes cases where the incident occurred in an earlier year but became a claim in 2012.

A key reason for the rise in the number of claims is that claimants solicitors have been taking on more cases on a conditional fee agreement basis. That

06

Jill Harding

Dr Glynis Parker MB ChB FFARCS DRCOG

As a claims handler, I am here to

support members throughout the

sometimes long and daunting process of a

claim for clinical negligence. The

adversarial nature of a civil law suit can be

very distressing and I know of at least one

doctor who gave up medicine as a result

of a case.

I was an anaesthetic registrar and then

a GP for nine years before joining the

MDU in 1987. My medical knowledge

allows me to bridge the gap between the

clinical and legal sides in a case, and I can

help to interpret members wishes and

feelings to lawyers. Members say they find

this very reassuring and helpful.

This is an incredibly busy department.

Claims handlers typically deal with

between 200 and 250 claims at any one

time, although some cases can

last many years. In 2012 alone, I took on

89 new cases and answered 3,100

pieces of post.

My role involves investigating cases,

ensuring I have the required information

from the member, instructing experts, and

where needed solicitors, and reporting

cases to MDU committees. One of the

aspects I most enjoy is meeting members

at conferences with lawyers or supporting

them through a trial, which fortunately for

a member is rare and for me happens

perhaps once a year. The process can be

confusing and stressful for members and

they say that they appreciate having the

support of someone who understands

what they are going through.

To ensure that we are able to provide members with a consistently high level of service, we have taken on additional staff and now have a multi-disciplinary team of 33 claims handlers from clinical, legal and insurance backgrounds. It is extremely important that we are available to speak to and, where necessary, meet members to discuss the issues involved in a case, particularly when there are key decisions to be taken. Our priority is to ensure that members feel supported throughout the claims process and when they raise questions, we can draw on our vast experience of handling cases to respond to them.

In 2012 the claims department handled 86,000 pieces of correspondence and 70% of medical cases were resolved without a financial settlement with the claimant. In future it will be more difficult for defendants in clinical negligence cases to recover the costs incurred in successfully defending a claim.

increase in new claim

notifications

In 2012 the claims team handled 86,000 pieces of correspondence and 70% of medical cases were resolved without a financial settlement with the claimant.

Helping youSenior medical claims handler

07

We recognise that members feel it is important to defend those cases that are defensible and we shall continue to do so even where it may not be economical.

Over the duration of a claim, case handlers get to know members and the feedback we receive is often heart-warming and indicates that our service has met their expectations, both practically and emotionally. For example, one member wrote: Thank you for your letter and for the good news it contained. I will now try and forget this episode of my life as a doctor and trust that the frustration and stress it has produced will fade. The whole episode has been made bearable by your professional and sympathetic handling of the matter. I would like to thank you again for your help and wish you all success and some peace as you continue to be involved with stressed doctors!

Jill HardingHead of claims

medical +15% dental +32%20%

When doctors think about medical indemnity, the first thing that springs to mind is often a claim for clinical negligence.

The worry and stress of facing a claim makes this assumption easy to understand.

But the reality is that, increasingly, our members are more likely to call on the support of advisory services.

Advisory review

08

Dr Michael Devlin

Dr Philip Zack BSc MB ChB MRCP

Ive done many things in my career

geneticist, paediatrician, hypnotherapist

specialising in treating insomnia, online

editor for the BMJ, a law degree but I

had long had an eye on the medico-legal

world. I have been at the MDU for a year

now and it has proved a very rewarding

career choice.

Each day presents new challenges, both

intellectually and emotionally. My work is

principally about problem-solving on behalf

of each member who writes in or calls the

advisory helpline. Typically, I deal with 10

to 15 new cases a week, plus calls, and

usually around half will concern patient

complaints, coroners inquests and

hospital disciplinary cases. Helping

doctors manage complaints is particularly

satisfying. We are on the doctors side,

obviously, but our assistance is also

focused on enabling them to repair and

rebuild the doctor-patient relationship,

which is crucial both to the doctor and

patient and in a wider social context.

As a medico-legal adviser, being a good

listener is a pre-requisite. I have found that

sometimes what you think might be the

issue when a member first calls turns out

to be something entirely different if you

listen carefully. You need to be

sympathetic, too, but sometimes give

tough love when things have gone wrong

and need to be put right. That can be hard,

but members often express their gratitude

for our impartial judgment and ability to get

to the heart of their problem.

calls to our helpline in 2012

09

Helping youMedio-legal adviser

In 2012 our department was busier than ever. My team of medico-legal advisers handled more calls and files than in 2011. Is there a pattern to this increase? The answer is yes and no.

You will read in the chief executives report that complaints to the GMC have seen another year-on-year increase and this is reflected in MDU file numbers. We also know that disciplinary proceedings brought against members by employers are increasingly complex, with a greater risk of dismissal.

There are also more NHS complaints requiring MDU assistance than in previous years. The changes to the way doctors are regulated, particularly revalidation for all doctors with a licence to practise and CQC registration for English GPs, has led the MDU to develop more advice and online tools to help members through the change process.The number of files where we help members facing criminal allegations arising from their treatment of patients, or help with inquests, or assist with public and other formal inquiries remains fairly constant. And while we are called on to handle fewer of these types of cases than GMC investigations, you can be reassured that my team of advisers have the expertise to help you.

Our focus is always to offer you the support you need, when you need it. As doctors, MDU medico-legal advisers understand the nuances of clinical practice and can quickly and effectively guide and support you.

But our work is not just reactive. We have an important and growing educational role, supporting members professional development through regular lectures, courses and publications. The description above of the work of my department helps to illustrate the breadth of what we do on your behalf. In order to continue to expertly defend you, we are expanding our team of medico-legal advisers. We appointed five new advisers to the team in 2012 with a further ten appointments planned for 2013.

Looking to the future, my department is better placed than it has ever been to provide you with the benefits of traditional discretionary indemnity. The words guide, support and defend are at the heart of what we do for you.

Dr Michael DevlinHead of advisory services

increase in medical advice files

6.5% 32,000

Dental review

The DDU had an exceedingly busy year. We saw an unprecedented increase in General Dental Council (GDC) complaints, and in negligence claims against our dental members, up by 42.5% and 32% respectively.

While claims for negligence account for the greater part of the financial spend on your behalf, approximately three-quarters of the files opened were not related to claims. Of these the overwhelming majority concerned complaints, in all their various forms to the dental professional or practice concerned, to the NHS primary care organisation, the Ombudsman, the Dental Complaints Service in respect of private care, and to the GDC itself.

The rise in complaints reflects a consumer society which demands high levels of customer service and accountability when things go wrong. Of course, things may go wrong for all sorts of reasons over which the dental professional has no control, and there is no evidence of falling standards.

10

Rupert Hoppenbrouwers

12.5%

11

Indeed, when I talk to members on our advice helpline, I am constantly struck by the lengths to which our members go to provide a high standard of clinical care and excellent customer service to their patients, sometimes in challenging circumstances.

So how have we responded to this unprecedented pressure on you, our members, to ensure you receive from us the same high standard of service that your patients demand of you? First, we have increased staffing in the advisory, claims and in-house legal departments to reflect the increase in casework. We have invested in new IT systems, including a bespoke paperless case management system to ensure we can handle your case and communicate with you promptly and efficiently, with the result that we increasingly use email to correspond.

If you call our switchboard, though, you will still speak to a helpful human being who will connect you to the right person without delay. We pride ourselves on a personal, professional service, and we set ourselves high performance targets, which we aim to improve all the time.

Susan NJie BDS What does it mean to me to be a

dento-legal adviser? It means helping

members on a daily basis with dento-legal

queries, giving them guidance on avoiding

the risks they might encounter in day-to-

day practice, assisting them with

complaints from patients or to the General

Dental Council, and ensuring prompt

action is taken to defend them if theres a

claim for clinical negligence. Its about

being there for our members when they

need us, responding quickly and making

sure they feel well supported.

My role is essentially collaborative. If

something has gone wrong with a patients

care or treatment, I examine the facts with

the member and work out what happened

and why. We discuss ways to ensure it

wont happen again. I was in general

dental practice for many years, so I know

first-hand the problems dentists can

encounter. Any member in dento-legal

difficulties can ask for our assistance, and

I find it very rewarding to be able to help

put things right for them.

A complaint to the GDC is a most

harrowing event for any dentist and we

understand just how worrying the impact

of a GDC decision is. Working with our

brilliant colleagues in the in-house legal

team, we are entirely focused on securing

the best possible outcome for the member.

Its a great team to work with.

Just like clinical practice, every day brings

new challenges and being able to assist

our members through stressful times is

incredibly rewarding.

We have invested in a new-look, easier to navigate DDU website, where you can find a wealth of dento-legal advice and resources, plus online verifiable CPD, and where you can carry out transactions relating to your membership at a time that suits you. We have also increased the number and range of our CPD courses, which are aimed at helping you keep up to date with your ethical and legal obligations, and avoid the common dento-legal pitfalls.

And we continue to seek to influence government and the regulators on your behalf, in partnership with the MDUs external and governmental relations department. Over the last year we have contributed to several GDC consultations, including their new standards guidance, direct access for dental care professionals (DCPs) and revalidation, and we have established a dialogue with the Care Quality Commission. The DDU continues to increase its membership of dentists, DCPs and corporate bodies, and we are well placed to help our expanding membership meet the challenges of the future.

Rupert HoppenbrouwersHead of the DDU

Helping you Dento-legal adviser

We pride ourselves on a personal, professional service, and we set ourselves high performance targets, which we aim to improve all the time.

increase in dental advisory files opened in 2012

I have commented in the past on the multiple jeopardy to which healthcare professionals are vulnerable, and in her operating and financial review, my colleague and MDU chief executive Dr Christine Tomkins highlightsthe rising numbers of complaints, claims and other requests for advice that we have seen in 2012.

Legal review

12

Charles Dewhurst

Nicholas Tennant LLB

It is unusual for doctors or dentists to be

the subject of a criminal investigation, but

when it is an MDU member, then I am one

of the four in-house criminal solicitors who

may be appointed to represent them.

We deal with a variety of serious

allegations on behalf of members

including gross negligence manslaughter

and sexual offences. These cases usually

start with members being asked to attend

the police station for an interview, but

occasionally they are arrested. While they

may have done nothing wrong, the police

station can be an intimidating environment

and the process is inevitably very

distressing. The vast majority of our cases

are concluded at the investigation stage;

however, where members are charged

and a trial ensues then we prepare the

defence.

As well as dealing with criminal cases I

provide advice to my colleagues in the

advisory department and represent

members facing regulatory proceedings

(GMC/GDC/HCPC1), disciplinary

proceedings and inquests. Cases can last

for many years and are often highly

complex.

Being the subject of an investigation by

the police, regulator or any other body is a

hugely stressful experience and members

can face the end of their career or even

prison in some cases. MDU solicitors

provide the representation and advice that

is needed during this difficult time.

Far and away the most rewarding aspect

of my work is securing the best outcome

for a member.

Its tiger country out there, as one clinician with a particular understanding of legal processes put it to me recently, her point being to support my plea to her colleagues to seek advice if any medico-legal issue should arise. We have proved that legal advice based on experience usually achieves the best and fairest outcome for our members, whether they are facing a complaint, claim or other criticism of their clinical practice.

Experience of such processes as the GMC or GDCs fitness to practise procedures cannot be learned, it can only be developed. Building on the in-house legal departments successes in representing members under investigation by the regulators, we have recruited an additional six solicitors and three paralegals to work with the senior solicitors undertaking this work. The qualities we have sought in making these appointments have been not merely academic but also determination to succeed and empathy for those members whom we are privileged to represent.

This year we have seen a new GMCpilot of meetings between GMC case examiners and doctors, represented by solicitors, which may pave the way fora more consensual approach to the

13

Helping youSolicitor

resolution of GMC complaints. There has also been a change of process at the GDC, whom we have previously encouraged to seek expert dental advice at an earlier stage of an investigation, and this has had the beneficial effect of weeding out a proportion of complaints that could never have amounted to impairment of fitness to practise. The way in which the regulators deal with their investigations will continue to evolve in the lead-up to an overhaul of the statutory framework for healthcare regulation across the board, in about 2015.

We are also substantially involved in supporting our claims department colleagues in managing a sharp increase in the number of clinical negligence claims provoked by recent changes in the funding rules, as claimants solicitors try to take a last advantage of the old regime before its unfairness is swept away under new costs rules.

The MDUs in-house solicitors remain committed to the cause of representing members best interests in all these areas.

Charles DewhurstHead of legal

average number of new GMC rule 4 cases referred to the legal department each week

9

1 Health and Care Professions Council

Cautionary tales

14

Members often tell us that they value the opportunity to learn from the experience of others in their profession who have faced medico- and dento-legal difficulties arising from their care of patients.

The cases published here show the wide range of dilemmas arising from medical and dental practice, and how the MDU and DDU guide, support and defend members through what can be a very distressing time.

We hope the cases provide valuable insight into dealing with the medico- and dento-legal problems that arise in everyday practice, and that you find them informative, enlightening and reassuring.

15

She was able to recall her abdomen being touched by cold fluid.

A 34-year old woman with no significant past medical history was admitted for elective repair of a paraumbilical hernia. The anaesthetist reviewed her pre-operatively. She explained the anaesthetic process and advised of the risks of dental damage, sore throat, post-operative nausea, vomiting and pain. With full monitoring, the patient was anaesthetised in the anaesthetic room using fentanyl, propofol and atracurium. The anaesthetist intubated the patient atraumatically and anaesthesia continued using a volatile anaesthetic gas. Shortly afterwards, the anaesthetist disconnected the patient from the anaesthetic machine and transferred her into theatre. The monitoring was reattached and ventilation restarted. Anaesthesia continued by means of the anaesthetic gas. The vaporiser device delivering this was placed on a low setting while the surgical team carried out the checklist and instrument checks, before starting the surgery itself.

The scrub nurse proceeded to prepare the abdomen with antiseptic, at which point she noticed the patients hand move. A member of staff alerted the anaesthetist, who responded quickly by giving a further bolus of propofol and increasing the anaesthetic gas delivery. Surgery continued uneventfully.

In the recovery room, the patient was tearful and distressed. She was able to recall her abdomen being touched with a cold fluid, accompanied by a sensation of not being able to breathe properly. She remembered a voice remarking that her hand had moved. She did not remember anything else about the surgery, and certainly not anything painful.

The anaesthetist reviewed the patient in recovery and concluded that her account was consistent with the events in theatre. She apologised to the patient and gave an explanation of what had happened. Understandably, the patient remained upset.

Several weeks later, the patient brought a claim against the anaesthetist. She alleged that the anaesthetist had provided inadequate anaesthesia at the start of the procedure and as a result she suffered insomnia and flashbacks for several weeks. The MDU discussed the case with the anaesthetist, who acknowledged that the patients account was accurate and consistent with a brief episode of awareness. In light of this, she accepted the MDUs advice that the claim would need to be settled. The MDU dealt with

Anaesthetic awareness

the patient directly and settled the claim for 3,000, with no formal admission of liability. The matter was concluded swiftly within six weeks and without the need for the patient to engage a solicitor to represent her, the costs of which are usually borne by the MDU in a claim which is settled.

Dr Thom PettySenior medical claims handler

16

All clinicians need to be alert to the difficulties which can arise when working under stress.

17

An 80-year old woman rang the GP out of hours service stating that she had diarrhoea and vomiting.

She was the main carer for her husband who suffered from dementia. She had previously been diagnosed with type 2 diabetes, polymyalgia rheumatica, for which she was taking prednisolone, and had a past history of a myocardial infarction. An out of hours doctor rang back and advised her to take lots of clear fluids and to call back if she became worse.

She called back that evening and spoke to the MDU member, also an out of hours GP. The service was under great strain as there was a widespread outbreak of norovirus. The patient told him that her diarrhoea and vomiting were worse, with very profuse diarrhoea, and that she was feeling very tired. The GP advised her to continue to take frequent small sips of water and to phone back if she was not better by morning.

The GP phoned in the morning to check on her, but there was no answer. The following day the patients son rang his mother and was alarmed as she seemed very unwell. He called an ambulance. The paramedics found that the patient was cyanosed with a GCS of 9 and a blood pressure of 80/45. Her temperature was 40C. She was admitted to intensive care and ventilated.

Campylobacter was isolated from her stool sample. She deteriorated and died ten days later.

A claim was received. This alleged that the patient should have been admitted after the first telephone call and that she would have made a full recovery after admission at that time. Since her death, her husband had been admitted to a nursing home and the family was claiming the costs of nursing home fees as well as a payment for the patients pain and suffering.

An independent GP expert report stated that the MDU member should have asked the patient more questions. If he had realised that she was a diabetic and taking steroids, then he should have arranged to see her or for another doctor to visit her at home. In retrospect, the member accepted that his judgment had been affected by the fact that there was a norovirus outbreak. The member had experienced considerable pressure at the out of hours service to avoid visits whenever possible.

Campylobacter infection

The MDU also asked a geriatrician to comment on the claim. This expert agreed with the claimant that the patient would probably have lived had she been admitted 48 hours earlier. However, the expert noted her very poor health, and observed that it was highly unlikely that she would have been able to look after her husband for much longer. After a period of negotiation, the claim was settled for 10% of the sum originally claimed.

The MDU member was very distressed by this case. He was a highly experienced GP. He agreed that the pressures caused by the norovirus outbreak had caused him to be hurried when speaking to this patient. All clinicians need to be alert to the difficulties which can arise when working under stress

Dr Frances SzekelySenior medical claims handler

1818

A 52-year old woman was referred to see an orthopaedic surgeon, a member of the MDU, with a two-month history of left knee pain. She had had a riding accident 25 years previously and had a residual right -sided hemiparesis. The patient complained that her knee felt stiff and swollen. The surgeon found some anterior joint line tenderness and requested an MRI scan which showed bone bruising in the lateral femoral condyle and evidence of condylar flattening and meniscal degeneration. He felt that it would be worthwhile to do an arthroscopy as there might be a treatable abnormality on the lateral meniscus.

There was no record in the patients notes of discussion of the risks or benefits of surgery, though both the patient and the anaesthetist had signed a consent form for the procedure. At arthroscopy a peripheral tear of the lateral meniscus was repaired. The following day the patient complained of severe pain and experienced brisk bleeding from the lateral portal, which required suturing. The surgeon reassured her.

A week later the knee was still very swollen and painful. An MRI scan showed an effusion. The surgeon carried out a further arthroscopy, obtaining consent in the same manner as before, ie a consent form signed by both the patient and the anaesthetist.

At arthroscopy, the joint was found to be full of blood clots which were washed out. A suture had come out and was replaced. However, the patient was later admitted to her local hospital with pain and fever. She was found to have septic arthritis. She was treated with intravenous antibiotics and the joint was washed out again. Rehabilitation was slow and over the next few months the patient underwent manipulation under anaesthetic to try to improve the range of movement and two further arthroscopies to deal with adhesions and scar tissue.The patient was left with a small degree of fixed flexion and a reduced range of movement. It was anticipated that she would need a total knee replacement.

A claim was received. The MDU obtained a report from an independent orthopaedic expert. Although the expert was not critical of the decision to proceed with an arthroscopy, he commented that the consent process was below an acceptable standard and so the claim could not be successfully defended. The claimant argued that, because of her existing disability, she would not have proceeded with the surgery had she been properly informed of the risks. This was despite her having had arthroscopies before first coming into contact with the member.

The claim was settled for 66,000 on behalf of the member

Dr Frances Szekely Senior medical claims handler

Complications following arthroscopy

The expert commented that the consent process was below an acceptable standard and the claim could not be successfully defended.

18

A baby born by caesarean section after a 60-hour labour suffered cognitive and physical impairment, allegedly as a result of a delay in performing the procedure. The incident took place in 1965 but the GP involved only received notification of a claim in 2006, more than 40 years after the events and some 15 years after he had retired.

The mother went into labour at 42 weeks gestation, after an otherwise normal pregnancy. She was admitted to her local GP-led unit, where midwives cared for women in labour, with four-hourly visits by GPs. It was a Sunday lunchtime and labour was established within a few hours, but her contractions were weak. She remained in labour, visited every few hours during the day by a GP, until Tuesday, when a GP arranged for her transfer to the nearby specialist obstetric department for a possible caesarean section due to a failure to progress. This was within the 48 hour recommended time period before transfer to specialist care.

There, her labour was allowed to continue for a further 12 hours, to see if she would progress to a normal delivery. It was apparent that she wouldnt and with some signs of foetal distress, a caesarean section was performed. The baby girl was unresponsive for the first few days of life but rallied and was able to leave hospital after two weeks.

However, the child had suffered an hypoxic-ischaemic brain injury, which had left her with severe mental impairment and poor motor skills. In adulthood, she was unable to care for herself, work or live independently.

The parents brought a claim on behalf of their daughter against their family GP who had cared for the mother throughout her pregnancy and had attended her on several occasions at the maternity unit. The MDU denied liability on behalf of the GP. Very few notes existed after such a long period, so the defence was based largely on established practice at the time and the doctors usual practice. Expert

40-year claim reports confirmed that in 1965, it was accepted that, in the absence of maternal and/or foetal distress, 48 hours was the cut off point for referring a patient to a specialist obstetric unit for failure to progress in labour. Furthermore it was reasonable to wait a further 12 hours following transfer before proceeding to caesarean section. The MDU sent a strong rebuttal to the allegations on the basis that although very few patient records still existed, the doctor had clearly followed accepted practice at the time. The parents elected not to pursue the claim further.

David PranklinTechnical claims controller

19

A GP member responded to an early morning request to visit a male patient in his late 20s.

The patient had seen an out of hours doctor two days earlier complaining of abdominal pain and had been prescribed ranitidine. He felt no better and gave a history of sharp abdominal pain that started in the epigastric area and had now moved to the right upper quadrant. He had been vomiting intermittently but had no change of bowel habit.

The GP examined the patient, who was morbidly obese, and recorded tenderness in the right upper quadrant which was worse on inspiration. There were no other abnormalities on examination. The doctors differential diagnosis was gallstones or dyspepsia that had not responded to ranitidine. He prescribed a proton pump inhibitor and analgesia and advised the patient to seek further advice in two days if his symptoms were not resolving.

Five days later the patient was admitted to hospital as an emergency, where he was noted to be cold, clammy and tachycardic with signs of an acute abdomen. He underwent emergency laparotomy and was found to have a perforated appendix stump and extensive peritonitis.

The patients post-operative course was complicated by the development of an abscess, a wound infection and a small bowel fistula. He required admission to ITU and was an in-patient for several weeks.

The patients claim alleged that the GP should have arranged immediate admission to hospital on the day of the home visit. If he had, it was claimed, the patient would have undergone surgery the same day and would have been an in-patient for only a few days.

The MDU obtained reports from a GP expert and a surgical expert. The GP expert advised that based on the doctors account of his consultation, he was supportive of the doctors management and denied that there had been any breach of duty. However, the expert did advise that if the court were to accept the patients account of events that he was experiencing worsening abdominal pain then hospital admission should have been arranged.

Acute abdomen

He required admission to ITU and was an in-patient for several weeks.

The surgical expert found it difficult to speculate on exactly when the appendix had ruptured but thought that it had probably already ruptured at the time of the home consultation. However, he added that the patients presentation was atypical and that the patients obesity would have made it difficult to elicit the clinical signs. He further advised that if the member had admitted the patient to hospital, it is likely he would have proceeded to surgery either that day or the following day. However, he would still have required a laparotomy and on the balance of probabilities would still have developed the wound infection though not the small bowel fistula.

The claimants experts were broadly of the same view. Although the claimant indicated that he wished to pursue the matter in court, the MDU legal team reasoned that because the case could turn either way on the factual evidence, there may be justification for negotiating a settlement. With the members agreement, the team negotiated a vastly reduced settlement with no admission of liability.

Dr Louise SmySenior medical claims handler

20

21

The patient, a 25-year old woman, initially saw her GP complaining of a sore throat and a cough and was diagnosed with a respiratory tract infection.

One week later she attended an out of hours centre and saw a different GP, an MDU member. She was now pyrexial and reported coughing up yellow phlegm. The GP examined her and recorded a comprehensive note detailing all his findings. He diagnosed a chest infection and prescribed erythromycin as the patient was allergic to penicillin. He also gave the patient safety net advice.

Several days later, the patient returned to her GP surgery and saw the first GP again. By now she was experiencing pain in the left side of her chest. On examination, nothing abnormal was found; however, the GP noted that her condition was deteriorating despite the erythromycin she was taking.

The patient then developed a raised red rash and returned to see her GP again. The GP diagnosed pneumonia and referred her to hospital. She subsequently underwent rigid bronchoscopy, a left

thoracotomy and decortication of a left-sided empyema. At surgery there was noted to be a lung abscess in the middle and lower lobes, heavily consolidated.

In the subsequent claim for negligence, the patient alleged that she had reported haemoptysis at the second and third GP consultations. There was, however, no note in her records to support the allegation. The MDU out of hours GP stated that he had made very careful notes and would have recorded haemoptysis as an important symptom if the patient had reported it.

The MDU instructed experts in general practice and respiratory medicine to comment on the management provided to the patient by the MDU member. The experts were supportive of his management. A response was submitted to the claimants solicitors denying liability on behalf of the MDU GP member on the basis that the member had written a detailed comprehensive contemporaneous record, that the report of haemoptysis was denied and that the member provided prompt and correct safety net advice.

Full records help defence

The respiratory expert thought that it was likely that at this point the patient was developing pneumonia although at this time it would have been very difficult to diagnose clinically and if a chest x-ray had been performed, it would very likely have been abnormal.

The patients solicitors indicated their intention to take the matter to court. Although the first GP elected to settle the claim, the action was not pursued against the MDU member and our defence of the case was greatly assisted by the comprehensive clinical record he had made during the consultation and supportive expert evidence obtained on his behalf.

Lee LewisSenior claims handler

In 1990, a 30-year old primigravida patient consulted her GP at 26/40 with symptoms of a urinary tract infection (UTI). The GP took a history, examined her and sent a urine sample to the lab. He prescribed antibiotics on the basis of a presumptive diagnosis of UTI. The MC&S results returned four days later showing 90 white blood cells, but no growth. The patient was instructed to finish her course of antibiotics.

At 30 weeks gestation, the patient attended her local hospital with backache, tightening and a mucus show. She was examined by a midwife and discharged home after providing a urine sample. This sample showed mixed growth, indicating contamination. A copy of the urine sample result was sent to the practice and the GP arranged for a repeat sample to be taken. This was reported as normal.

The patient returned to hospital at 39/40 with a history suggestive of an amniotic fluid leak. This was investigated, discounted and the patient was discharged. She was admitted to hospital in spontaneous labour at term one week later. The baby was delivered by normal vaginal delivery and was in good condition at birth. But eight hours after delivery, the child developed respiratory difficulties and required resuscitation.

The baby was diagnosed with Group B streptococcal pneumonia and suffered from disseminated intravascular coagulation, acute renal failure and pulmonary hypertension. He required ventilation for two weeks and was discharged home.

At age six, it was noted that the child had poor concentration and limited attention, thought to be part of a global learning disorder. The child had not walked until two years of age and had difficulty with motor skills.

Some eight years after the childs birth, the mother submitted a claim for compensation. The claimants solicitors alleged that the GP did not adequately treat the mothers urinary tract infection and that the practice did not recognise that urinary tract infections during pregnancy, along with premature rupture of the membranes, are common indicators of Group B streptococcal infection. It was alleged that the child had developed brain damage as a result of the negligence.

The MDU investigated the claim and obtained a number of expert opinions. A GP expert advised that there was no evidence of a streptococcal urine infection in any of the specimens taken before or during this patients pregnancy.

Pneumonia in neonate

He stated that there was no reason to believe that her GP mismanaged the patient during her pregnancy.

An expert microbiologist commented that there was no evidence to suggest that the mother was colonised with Group B streptococcus prior to the delivery of the baby or that it should have been actively sought. He also pointed out that there were no national guidelines for its eradication at that time and that there was no evidence of premature rupture of the membranes at 39/40.

An expert obstetrician agreed that there was a lack of evidence to demonstrate Group B streptococcal infection in the antenatal period. He also concurred that the advice for treating patients with IV antibiotics with this condition did not emerge until after this event. On the basis of the expert evidence, the MDU submitted a letter of response to the claimant denying liability. Some months later, the claimants solicitors advised that they were no longer instructed to pursue a claim.

Dr Sharmala MoodleyDeputy head of claims

22

The patient, a 60-year old woman who had previously been fit and well, consulted a GP MDU member for a second opinion on a lump behind her right knee, which her own GP thought was a Bakers cyst. The MDU GP found that the lump was a fluctuant swelling, approximately 8cm in diameter, in the lower part of the right popliteal fossa. He reconfirmed to the patient that it was a Bakers cyst. No further investigation or treatment was advised.

Six months later, the lump became more painful. The patient went back to see the MDU GP who requested an ultrasound scan. This was abnormal. An MRI scan confirmed a sarcoma behind the right knee. Despite chemotherapy, the mass did not shrink and the patient underwent above-knee amputation of her right leg.

A claim was received against the GP member alleging that he had failed to appreciate that the swelling might be cancerous and that he should have referred the patient to a specialist cancer treatment centre for investigation. It was also alleged that the delay in referral resulted in an unnecessary amputation. The MDU obtained an independent GP expert report on breach of duty. The expert stated that the GP had failed to note that the swelling did not get smaller as the patient bent her knee. At 8cm, the lesion fell within NICE cancer guideline CG27 (1.13.7) which states that a soft tissue lesion greater than 5cm diameter and increasing in size is suggestive of malignancy and requires further investigation. The lesion was also in the lower part of the popliteal fossa, whereas a Bakers cyst usually develops in the space behind the hinged joint of the knee. The expert concluded that, due to the size of the swelling and its position, a routine ultrasound scan should have been arranged at the first consultation.However, he did not believe that it was mandatory to have referred the patient to a specialist cancer centre on this date.

A report on causation and condition and prognosis from an orthopaedic tumour specialist stated that because the tumour was poorly responsive to chemotherapy and was increasing in size in a very difficult area (between the two heads of gastrocnemius and around the soleus and very close to the neurovascular bundle), an amputation was always likely to have been required in any event.

Liability for failure to arrange an ultrasound was admitted. However, the case was defended on issues of causation that is, that it was likely on the balance of probabilities that the patient would have required an amputation.

The orthopaedic surgical experts from both sides met and produced a joint statement agreeing that it was likely that amputation would have been avoided by an earlier referral but it was difficult to say at what point that opportunity had been lost.

After this meeting MDU lawyers advised that it was likely that a court would find that further investigation would have revealed the presence of a malignancy

Lump behind the knee

and that surgery at that stage would, on the balance of probabilities, have been by way of resection only and not amputation. It was therefore decided to settle the claim and a payment of over 200,000 for damages was agreed plus 84,000 for the claimants legal costs.

Patricia Cassidy Claims handler

The expert stated that the GP had failed to note that the swelling did not get smaller as the patient bent her knee.

23

The patient was a 54-year old man who was found to have an elevated PSA (5.6) and referred

for a cystoscopy and prostatic biopsy, which was negative. Four years later, he saw his GP who requested a further PSA which was still raised (5.6). Nine months later he saw another GP

reporting painless haematuria for three days. An MSU test and urinary cytology were both normal. Three months later the patient saw an MDU GP who requested a PSA which had now risen to 13.8. It appeared that no action was taken on the result.

Seven months after this test the patient saw another MDU GP about an entirely different complaint. The doctor spotted in the patients notes that the last PSA had not been investigated further. He immediately ordered a repeat test, which was reported at 9.5, and referred the patient to a urologist on a non-urgent basis. Prostatic biopsy was positive with a Gleason Score of 3+3. The patient underwent a radical prostatectomy which, somewhat surprisingly, showed only two very small loci of malignancy.

The patient brought a claim alleging negligent failure to inform him of the PSA result of 13.8. It was further alleged that it was negligent to have waited a further seven months and only to have repeated the PSA test when he returned to the surgery.

The MDU obtained a report from an independent GP expert who considered that the first GP should have referred the patient for further investigation when his PSA was found still to be high after four years. He was also critical of the failure to refer or to arrange a further PSA test when the patient presented with painless haematuria. The expert was highly critical of the failure to refer the patient when the PSA of 13.8 was received and he stated that he considered that this resulted from a systems failure within the practice. He also considered that the referral which eventually took place should have been made under the two-week rule procedure. The MDU obtained a report from an independent urology expert. The expert considered that it is likely that the tumour would have been at the same stage when the PSA was 13.8 as it was at referral to the consultant urologist, and the same treatment would have been offered. The expert commented that in view of the very small size of the tumour, it is highly likely that the patient had been cured by the radical prostatectomy. This view was accepted by the claimant who then only sought compensation for his distress in discovering the delay in diagnosis. The claim was settled for 4,500.

Dr Frances SzekelySenior medical claims handler

Raised PSA

The doctor spotted in the patients notes that the last PSA had not been investigated further.

24

The sceneA GP received a request for a 14-year old childs records to be disclosed. The request came from the childs father, whom the GP knew to be estranged from the mother. The GP immediately had concerns about complying with the request as the notes contained allegations against the father of past abuse of the child.

The doctor called the MDU for advice. He wanted to know whether he was obliged to disclose the childs notes to the father, and if so, whether they could be redacted before sending.

MDU advice The MDU adviser firstly asked about the parents marital status, in order to determine parental responsibility. The parents had been married, the GP said, but were now divorced. The GMCs 0-18 years (2007) guidance explains that parental responsibility relates to the rights and duties that parents and guardians have by law for their child1 and is defined in the Children Act 19892. Mothers and married fathers generally have parental responsibility unless this has been removed by the court. In this case, the father appeared to have parental responsibility as it had not been removed and it is not affected by divorce1. The adviser confirmed that under the Data Protection Act 1998, a person with parental responsibility has a right to apply for access to their childs health records3. As the child was 14 years old, the GP should consider whether the child had capacity to decide for himself whether or not the father could see his records. The doctor confirmed that he was confident that the child had capacity and the adviser suggested he involve the child in the decision4. The adviser suggested the GP see the child on his own to discuss the disclosure of the records to his father. In determining whether to disclose the records, the GP would also have to consider whether this was in the best interests of the child, even if the child consented, particularly if there was sensitive information about the father in the notes5.

The adviser also suggested the GP check the records for third party information which generally should not be disclosed without appropriate consent3. This would not apply where the third party was another health professional who has compiled or contributed to the health record or has been involved in the care of the patient6. The records should also be checked to ensure that disclosure of all or part of them would not cause serious harm to the physical or mental health of the child or any other person. OutcomeThe GP confirmed that the father did have parental responsibility for the child and also discussed the disclosure with him. The child was aware of the

Request for a childs notes

References1 GMC, 0-18 years: Guidance for all doctors. Appendix 22 Children Act 1989 sections 2-43 Data Protection Act 19984 GMC, 0-18 years; paragraphs 53-545 GMC, 0-18 years; paragraphs 44-556 Data Protection (Subject Access Modification)(Health) Order 2000

reference to child abuse and consented to the release of his records to his father. The GP carefully documented the discussion he had had. Before the notes were disclosed, information that had been provided by the childs mother was removed at her request.

Dr Shelagh TurvillMedico-legal adviser

25

A 39-year old man was referred to an orthopaedic surgeon, an MDU member, because of continuing pain in his right shoulder. He had already had physiotherapy and a joint injection but neither had been helpful.

The surgeon found the patient had restricted active shoulder movements and his initial diagnosis was a rotator cuff tear. He requested x-rays and an ultrasound scan.

The shoulder x-ray showed subchondral sclerosis of the glenohumeral joint with no narrowing of the joint space. The radiologist commented that this finding suggested a long-standing glenohumeral arthropathy. The USS showed that the rotator cuff and biceps tendon were all intact and had normal appearance. There was fluid and synovitis within the biceps tendon sheath and in the shoulder joint. The synovium of the shoulder joint was hypervascular on Doppler scanning. Some calcified material appeared within the posterior joint recess. The radiologist commented that the appearances could be due to an inflammatory arthropathy or osteochondromatosis.

The orthopaedic surgeon reviewed the patient in clinic and requested blood tests, looking for inflammatory markers. These were normal. He proceeded to arthroscopy, and found inflammation of the joint lining and grape-like protrusions in the inferior recess. He took biopsies and washed out the joint.

Two weeks later, on reviewing the patient, the surgeon noted a slight improvement in shoulder movements but because of the presumptive diagnosis felt a referral to a rheumatologist was appropriate. The biopsy results were not available at that appointment.

Over the following two weeks, the patient gained a little more shoulder movement but reported continuing severe pain. He was seen by the rheumatologist who felt that it was likely that the patient had an inflammatory arthropathy.

The biopsy showed hyperplasia of synovial cells with foci of chondroid metaplasia. There were no atypical mitotic figures. The appearances were felt to be those of reactive synoviopathy.

The patients movement continued to be restricted by severe pain, which became particularly apparent during physiotherapy. Concerned by the patients failure to progress, the orthopaedic surgeon requested an MRI scan. This showed a destructive lesion in the proximal humerus, subsequently diagnosed as a high grade spindle cell sarcoma.

A claim was received. The MDU obtained a report from an independent orthopaedic expert. It was noted that the surgeon had not personally reviewed the radiographs due to problems with a newly installed radiograph viewing facility. The surgeon had relied instead on the radiology report. The MDU expert concluded that this was acceptable, but felt that if the surgeon had seen the films personally he would have noticed an area of cortical irregularity which he would have wanted to follow up with further imaging. The surgeon accepted this view. After investigation the claimant accepted that the delay did not cause any change in the treatment or prognosis of the tumour and the claim was settled for 7,500 for the longer period of pain suffered by the patient.

Dr Frances SzekelySenior medical claims handler

Spindle cell carcinoma

26

The patient was a 17-year old man who presented to his GP, an MDU member, the day after a football match. He reported that he had tackled an opponent but slipped and landed astride the other players leg. He was aware of hurting his testicle but the pain did not seem severe. On waking that morning, his testicle felt more sore than before but the pain was intermittent and not severe.

On examination, both testicles were normal in size and position. The right testicle was tender in the lower half. The GP noted that there was no evidence of a torsion and suspected that the pain was as a result of the injury. She advised the patient to seek urgent medical assistance if the pain got worse.

The following day, a Saturday, he returned to the surgery and saw a different GP who noted that there was a large swelling on the right side. He sent the patient to the emergency department with a referral letter which queried testicular rupture. On admission the patient was noted to be suffering from intermittent testicular pain and the diagnosis was unclear. Arrangements for a Doppler ultrasound could not be made over the weekend and so the patient was discharged with painkillers. Over the next four days, the pain became more severe and constant. Four days after the initial admission, a Doppler ultrasound scan was performed which showed no flow in the testicle. A surgical exploration was performed which showed a necrotic right testicle which was removed and a left orchidopexy performed.

A claim was received which alleged that the torsion had occurred shortly before the patient was seen by his GP and that, if she had referred the patient that day, an immediate exploration and fixation could have prevented the loss of the testicle.

The MDU obtained reports from independent GP and urology experts. The GP expert was supportive of the MDU GPs management. He pointed out that the pain at first presentation was not severe and was intermittent. The records were good and the GP had carefully noted her findings at examination. She had also made appropriate arrangements for follow-up.

The urology expert commented on the difficulties in determining when the torsion occurred. He thought that it was most likely that the initial problem was a bruising injury to the testicle. The reasons for this included the intermittent, relatively mild pain and the fact that the GP recorded that the testicle was easily palpable and only tender in the lower pole. The urology expert considered that it was likely that the testicle was intermittently torting and then untwisting following the initial injury. The findings in casualty suggested that a full torsion had occurred and the expert considered that it was possible that if a Doppler ultrasound had been performed, it would have shown impaired circulation and the testicle

Testicular torsion

could, at that point, have been saved. It is generally stated that in order to salvage the testicle, an operation should take place within six hours; however, it was impossible to say when the torsion occurred.

It was clear from the claimants witness statement that he had suffered a very severe emotional response to his illness and orchidectomy. He suffered depression and panic attacks and attempted suicide. However, his account of the events after his injury accorded with the evidence from the MDU GP. As a result of this, the MDU solicitor proposed to the claimant that, if he discontinued his claim, the MDU would not seek their legal costs from him. This was accepted and the claim discontinued.

Both experts commented that this was a difficult case. However, the excellent records, which included examination findings and follow-up arrangements, assisted the experts in supporting the MDU members care.

Dr Frances Szekely Senior medical claims handler

It was clear from the claimants witness statement that he had suffered a very severe emotional response to his illness and orchidectomy.

27

The sceneA consultant rheumatologist who occasionally provided medical reports in relation to insurance claims was asked by an insurance company to review video evidence, taken covertly, of a patient of his who had received compensation for a disability. The consultant had provided a report on the same patient five years earlier when the patient had appeared to have a significant disability. At the time, the doctor had consent from the patient to submit his report to the insurance company. The video surveillance evidence of the patient was not compatible with the disability the doctor had previously described. He had prepared a further report based on the surveillance material, as requested.

Covert surveillance

References1 GMC Confidentiality (2009) 2 Access to Medical Reports Act 1988, section 4

The doctor was relieved to have avoided a potential breach of confidentiality.

Before submitting this to the insurer, the doctor wondered if there were any medico-legal consequences he should consider and he called the MDU advice line for assistance.

MDU advice The medico-legal adviser explained that GMC guidance1 states that a doctor should obtain written consent when disclosing information to third parties and she also advised that the patients written consent would be required to disclose a new report based on the fresh evidence.

The adviser checked that the doctor was aware of the requirements of the Access to Medical Reports Act 1988. This requires that a patient must be given 21 days to review a report before it is submitted to an insurance company or employer.

The adviser suggested that the doctor might advise the insurance company to whom he had provided the original report that he wished to withdraw his original report as he now had reason to believe that it might not be accurate. She suggested that he could tell the insurer that he could not produce a new report on the video surveillance without additional consent from the patient.

OutcomeThe doctor was relieved to have avoided a potential breach of confidentiality. He planned to change his practice and would in future obtain written consent for all such reports and would ask for additional consent if any further reports were sought.

Dr Kathryn LeaskMedico-legal adviser

28

29

The sceneA GP with a special interest in diabetes contacted the MDU advisory helpline. He was a member of the local clinical commissioning group (CCG) and had been offered a new device for GPs in the area to try out for a year. The device recorded blood sugars taken by patients in their homes and sent the results directly to the GP system which automatically alerted the GP to any abnormalities. Patients and staff would need to be trained in their use and the GPs best friends wife was the director of the company which would provide the devices and the training. The member was concerned about whether this was a conflict of interest. He stressed that he would derive no financial benefit from the situation. MDU adviceThe medico-legal adviser said that sometimes conflicts of interest are unavoidable. She explained to the member that there are several types of conflict of interest. These include:

direct financial interest, for instance if the individual is a director of the company being commissioned

indirect financial interest where a family member may obtain financial gain from the situation

non-financial or personal interest where the individual may gain recognition from research or where friends of the individual gain

conflicts of loyalty between the CCG and other bodies that the individual belongs to, such as colleges

perceived conflict between professional duties to the whole population when acting as a commissioner and to individual patients as a primary care provider.1

The adviser also explained that the GMC says that if a doctor is in doubt about whether there is a conflict of interest, he or she should act as if there is one. The GMC also says that doctors should declare a conflict of interest to anyone affected as soon as possible and follow established procedures for managing a conflict.2

Possible outcomes included, on the one hand, that the CCG would welcome his input into discussions given his expertise in diabetes, but on the other he could be accused of a personal interest due to his friends wifes potential future financial gain. This could lead to accusations of lack of probity on his part, complaints about the CCG, adverse publicity and loss of public confidence in the organisation. The adviser suggested that the doctor may wish to declare his interest in line with the guidance from NHS England (formerly the National Commissioning Board)3 but that the CCG would need to decide how to manage the conflict in a balanced and proportionate manner.4

OutcomeThe doctor thanked the adviser and said that he would certainly declare the non-financial personal interest so that it could be properly documented.

Dr Carol Chu Medico-legal adviser

Conflicts of interest

References1 Managing Conflicts of Interest in clinical commissioning

groups, RCGP Centre for Commissioning, 20112 Financial and commercial arrangements and conflicts of

interest, GMC, 20133 Towards establishment: Creating responsive and

accountable CCGs, NCB, 2012 4 Making difficult choices: RCGP ethical commissioning

guidance, RCGP, 2011

The adviser also explained that the GMC says that if a doctor is in doubt about whether there is a conflict of interest, he or she should act as if there is one.

3030

The sceneWhile preparing to fit brackets for an orthodontic patient, a practice principal was shocked to find that among the brackets he selected from the plastic storage box was one which was caked in debris and cement. It had obviously been used before. He immediately discarded the bracket and the others from the same well of the box.

Puzzled as to how this could have happened, he spoke to a colleague after the consultation and was alarmed to find that the colleague had very recently experienced a similar incident. When they examined all the brackets in their stocks, they found a further three that were contaminated.

Both dentists believed the chance of a contaminated bracket ending up in the storage boxes was minuscule and were baffled as to how it might have happened. Normally, their practice was to only reuse brackets when a patient presented with a loose one, in which case they would personally remove and sandblast it before handing it to the nurse to place the cement and then immediately fitting it.

Concerned at the obvious breach of infection control and the potential consequences for patients and the practice, the principal rang the DDU for advice.

DDU adviceHygiene has always been a priority in dental practice, but in recent years there has been an increasing emphasis on infection control. It goes without saying that all dental professionals are expected to meet stringent standards, and the

DDU adviser cautioned that failure to enforce adequate infection control procedures could lead to sanctions being imposed on the practice by the regulators.

In the DDUs experience, one of the most common allegations made by patients about lapses in infection control relates to unsterilised instruments. However, it would be highly unusual, the adviser said, to find contaminated brackets among stores ready for use on patients. Most often, such incidents arise from human error or a misunderstanding of infection control procedures. In that case, an appropriate course of action would be to review the practice infection control policy, changing or updating it as necessary, and undertake staff training in the principles and practice of infection control.

Breaches of infection control may have serious consequences. First, there is the potential to compromise patients health. If, following the initial investigation, the principal thought there was any possibility that the breaches in infection control could have consequences for a patient, he was advised to consider contacting the local public health team for further advice on whether the practice should carry out a patient notification exercise. Second, the regulators can impose sanctions on practices or individual dental professionals for substandard procedures.

In England, the standards are set out in the Department of Healths Decontamination in primary care dental practices (2013), which gives benchmarks for both quality requirements and best practice. Similarly, outcome 8 of the Care Quality Commission (CQC) essential standards,

Contaminated bracket

which concerns cleanliness and infection control, establishes what is expected of all practices. The CQC can cancel a practices registration if it finds infection control falls below what is required. The GDC is likely to be notified if the CQC imposes sanctions on a practice.

In Scotland, guidance on infection control can be found in Contamination into practice, published by the Scottish Dental Clinical Effectiveness Programme (SDCEP). All NHS practices that provide general dental services were required to be compliant with SDCEP standards by the end of 2012. Local health boards now carry out inspections every three years and practices which do not pass will lose their entitlement to the general dental practice allowance and reimbursement of practice rental costs.

Standards in Northern Ireland are set by the Department of Health, Social Services and Public Safety. Practices are subject to inspection by the Regulation and Quality Improvement Authority against Department of Health best practice benchmarks.

Dental practices in Wales are also subject to the Department of Healths essential requirements and best practice. Local Health Boards are responsible for ensuring that standards are met and routine inspections are carried out by the Dental Reference Service every three years.

Leo BriggsDento-legal adviser

The sceneWhen a patient presented with a chipped LR6, the dentist, a DDU member, recommended a crown, but the patient decided against it at that time. Several months later, the tooth fractured again and the patient was now also in pain from LR7. The member focused on relieving the pain at LR7 and placed a temporary filling in the asymptomatic LR6. Root canal treatment on LR7 was successful, but the patient again delayed having a crown on LR6, due to financial constraints.

After several failed appointments, the patient attended for preparation of a crown on LR6 ten months later. A pre-operative periapical radiograph showed a deep filling but no obvious apical pathology. The tooth remained asymptomatic. The member planned to place a crown, but the patient enquired about filling the space of the missing LR5. After discussion, the member added a small cantilevered pontic and LR6 became a bridge retainer. The bridge was cemented three weeks later.

Over the following year, the patient returned several times complaining of pain on biting on the bridge. After adjustments, the discomfort appeared to have eased and the patient did not mention the bridge again in the next four appointments.

However, the patient began to experience discomfort again a few months later. The member found that some of the porcelain on the bridge retainer had chipped away. He offered to replace the bridge free of charge. A periapical radiograph showed an apical area which would need root canal treatment. He offered to do this at half his normal fee, as a gesture of goodwill.

The patient was very upset and felt she should not have to pay for the root canal treatment at all, so the member agreed

to carry out the root canal treatment free of charge, and to replace the bridge with a single crown, also free of charge, both offers being made purely as a gesture of goodwill. The patient agreed and was happy with the treatment, but she attended as an emergency a few weeks later with severe pain from LR6. The apical area had not reduced so the dentist advised extraction. The patient agreed and this treatment was also carried out without charge. Although the patient appeared to be satisfied with the care provided, the member subsequently received a complaint from the patient.

DDU adviceWith the DDUs assistance, the dentist responded to the complaint explaining that a percentage of crowned teeth do become non-vital and require root canal therapy. The LR6 had been checked for vitality and periapical infection excluded with a radiograph before the crown was placed and there was no indication that a crown was not a suitable treatment.

The dentist highlighted all the steps he had taken to help the patient and the extensive treatment he had provided free of charge since fitting the crown. The patient remained dissatisfied and took her complaint to the Dental Complaints Service (DCS).

Surprise complaint

The DCS suggested a refund of the 500 that the patient had paid for the bridge originally, plus a further sum of 500 for remedial treatment. The DDU again helped the dentist to respond by drafting a letter to the DCS setting out the lengths he had gone to in order to help the patient and confirming the treatment (amounting to 900) that had been provided at no cost.

The outcomeThe DCS called a panel hearing, the rules of which preclude DDU representation, but the DDU dento-legal adviser guided the dentist through every step of the process, including what questions he might expect and how to express his responses. The panel found in the dentists favour, no payment to the patient was recommended, and the case was closed in the members favour by the DCS.

Sue NJieDento-legal adviser

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A woman in her late 50s with a large number of missing teeth sought advice from a dentist, a DDU member, about the possibility of dental implants and requested fixed upper and lower bridgework to improve her appearance, confidence and comfort. She was a heavy smoker with poor oral hygiene.

In view of concerns regarding the occlusal vertical dimension, bone loss (which was considerable) and that further soft tissue support would be required, the member counselled her against having fixed appliances in her upper and lower jaw. He also warned her that, given the particular clinical circumstances, a fixed upper bridge would affect her ability to speak naturally as air would pass below the bridgework. It was noted that speech was particularly important in her work.

Instead, the dentist recommended an upper implant-retained removable prosthesis with minimal palatal coverage to facilitate normal tongue-to-palate contact. This would require extraction of seven teeth, with the retention of the two canines in the lower jaw. These would be crowned and joined with a Dolder bar to which a removable cobalt-chrome partial denture would attach. Two pairs of implants would be needed in the patients upper jaw, each pair connected by a Dolder bar which would hold a metal complete upper denture. The dentist advised that using implant and/or precision attachment retained conventional dentures would allow the considerable tissue loss to be restored with appropriate padding of the gum work of the dentures.

Fixed versus removable appliances

The patient was still insistent that she wanted fixed, non-removable appliances in both jaws, even though the dentist explained that excessive bone loss, particularly in the upper jaw, would make implant retained fixed bridgework unfeasible.

Following discussion, the dentist referred her to a consultant oral and maxillofacial surgeon for a surgical opinion on the viability of placing implants. The surgeon acceded to the patients request and outlined an alternative treatment plan which involved the insertion of eight implants in the maxilla and six in the mandible with a view to providing fixed bridgework in both jaws considerably more implants than the dentist had originally envisaged. The patient opted

Nothing further was heard from the patient until nearly a decade later, several years after the dentist had retired.

for this plan; surgery took place and the implants were placed and temporary upper and lower dentures fitted.

After the healing phase, our member undertook the superstructure and the fitting of an upper removable implant retained full denture with minimal palatal coverage and considerable bulking of the flanges to replace lost tissue. Three fixed bridges were fitted in the lower jaw, supported on six implants.

A few months after the treatment had been completed, the patient returned to the dentist to complain that the retention clips on the Dolder bars clicked while she was eating. This was resolved by simple adjustment to the clips and to the occlusion. On examination, the dentist

noted that some of the implants were now slightly loose and that the patients oral hygiene was still very poor. He advised her again about this, but the patient wanted a second opinion as she still wanted fixed upper bridgework.

In fact, the patient consulted the maxillo-facial surgeon again to discuss replacing her upper removable prosthesis with an implant retained bridge. The patient was insistent and he agreed to carry out the procedure, which required a further three implants, leaving the dentist to arrange fixed bridgework. This was never done and the three extra implants were left as sleepers.

The patient was then seen regularly by the member over a period of several years for maintenance, during which time nothing untoward was noted and the patient seemed happy with the result.

Nothing further was heard from the patient until nearly a decade later, several years after the dentist had retired, when the member received a letter from the patients solicitors alleging he had failed to use reasonable care and skill in fitting the bridges and upper denture. The patient sought damages of up to 150,000 and also made a claim against the maxillofacial surgeon and two other dentists who had treated her after our member retired.

The MDU obtained expert opinions from a general dental practitioner and a consultant in restorative dentistry. The GDP expert was of the view that the dentist had used reasonable care and technical skill in fitting the superstructures on the implants inserted by the consultant oral and maxillofacial surgeon. In his opinion, the slight mobility of the implants had caused the bridges to become loose but that the dentist had produced the best bridgework on the available implants, achieving a compromise design that the patient could keep clean with good oral hygiene.

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A patient was referred by the local dental hospital for extraction of the LL8 to a dentist, a DDU member, with a special interest in oral surgery. She was suffering pain and discomfort from the wisdom tooth, which was impacted. The dentist assessed the tooth and discussed the treatment plan with the patient. He advised the patient of the risks associated with removal of the tooth, including possible nerve damage.

The dentist carried out the extraction a few days later. As far as he was aware, the surgery was successful. The patient returned complaining of numbness of the lower lip, although at subsequent appointments it appeared to be steadily improving.

Two years later the dentist received a notification of a claim against him from the patients solicitors. The claim alleged that he had not obtained val