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Reading the Tea Leaves


Posted by Dr No on 28 November 2009

tealeaf.jpgWe doctors live in daily fear of being sued. But that is only one side of the story. On the other side is the lot of the sensible patient or relative who genuinely believes that “something went wrong that should not have gone wrong”, but who faces the daunting task and uphill struggle of mounting a claim for negligence. His or her daily fear will not be one of being called to court, but quite the opposite, of ever getting the claim off the ground in the first place.

Even when the claimant has a genuine grievance - we are not talking about malicious or vexatious claims here - the odds are stacked in the doctor’s favour. The essential facts and understanding of the case will lie in the medical arena – which is a turf we doctors naturally understand, and which is familiar to us. We – sometimes, but not always, because they can be fickle in who they choose to support – will have the support of our professional defence society. And, more often than not, we will have the support of colleagues, as ranks close, lest the hoppers open and the fan start to turn.

The lot of the aspiring claimant could not be more different. She – let’s make it a she, because women tend to be less confrontational than men - faces such steep barriers in the way of even getting her claim off the ground that it is a wonder that any claim ever makes off the starting block. Let us consider those early barriers.

The first barrier is indeed steep, but private. The sensible claimant, being sensible, will naturally want to trust doctors, and yet everything she sees before her tells her she must abandon that trust, and entertain a belief that those whom she would prefer to trust are no longer trustworthy. That, for the sensible individual, is not a trivial step, and should not be sniffed at.

Our claimant’s next barrier will be to persuade a solicitor that there is a case to answer. Many jobbing solicitors, however, will be out of their depth in medical matters – and so will be less open than they might be in simpler matters, to persuasion that there is a case to answer. But let us say that our claimant is articulate, and her claim falls on sympathetic legal ears; and her case is taken on.

The solicitor will then obtain the medical notes – a process that is often tortuous, protracted, and incomplete. Unfortunately, our solicitor, who is now privately minded to view the claimant as even more medically ignorant than he is - and so gives her little weight in medical matters - finds that he is further handicapped. The medical notes make no sense to him: reading them makes about as much sense to him as reading tea leaves. And so he will need to make use of expert medical opinion, to translate the tea leaves into something more useful.

Our solicitor must now cobble together questions about something he doesn’t really understand – the nature of the claim, based on instructions from someone he doesn’t really believe – the claimant, and present them to someone he doesn’t really trust – the expert, but who – and this is one of the few facts on which the solicitor can rely – will charge £150/hour for his expert medical opinion.

The expert is, of course, in this for the money – which is fair enough - and so will limit his assessment of the medical notes to questions raised by the solicitor. But, as we have seen, a fog is already upon our solicitor, who has, as a result, asked the wrong questions. The expert, in turn, reads the wrong tea leaves, and so gives (let us hope) the right answers - but to the wrong questions. The fog remains, and no progress is made.

And so further instructions and opinions pass backwards and forwards, with expert costs now in thousands of pounds, and yet the fog refuses to lift, and the tea leaves fail to give up their secret; and so the claim stalls. According to DAS, the leading legal expense insurers, 80% of medical negligence claims get no further than the initial solicitor, because no one is able to make sense of the medical notes.

Remember, these are not malicious or vexatious claims, but sensible articulate claimants with genuine grievances. What about those claimants with no less genuine claims, but who are less well placed to understand the system, and how it works? How much harder must it be for them?

These genuine claimants are being failed by our legal system. While that may be bad law, rather than bad medicine, the result is that many doctors practicing bad medicine are not called to account when they most certainly should be.

2 comments:

I wish I had known a Doctor like you Dr. No when I started my 'complaint' with the Sheffield Northern General Hospital.
Of course it wasn't a complaint in the first instance but just a letter asking why 1 nurse on 1 shift on the Palliative Care Ward refused to give my dying father his prescribed extra morphine.
(I knew nothing of terminal sedation, LCP's or morphine syringe drivers whilst holding Dad's hand during his final days 7/1/06 - 11/1/06.)
I thought the nurse would have been reprimanded!
However on reading the medical notes once I had put them in order, as they had come to me in a dishevelled pile, I discovered that a 'catalogue of errors' had taken place between 7/1/06 and 11/1/06 when Dad finally left this world!
It turned out that the Palliative Care Consultant had failed to 'calculate and consider' any prn, extra morphine that had been needed in a previous 24 hour period.
Not knowing anything about the NHS Complaints proceedure I proceeded to the next step - the Healthcare Commission.
This now defunct agency (that has been reborn as the Care Quality Commission) found that the amount in the syringe driver, that had been in situe 55 hours (10mgs) was 'LOW IN THE CIRCUMSTANCES' and they were also concerned that Dad was NOT on the LCP. The HCC made several recommendations for the Sheffield Hospital Trust to implement in the future.
We still wanted answers to why the syringe driver had NOT been titrated (gradually increased).
We went to a Solictor, NOT for monetary compensation ( I think that is obscene ) BUT to try and get the people responsible for letting Dad leave this world to enter the next, in such a frightened state, to answer our simple questions.
In the end we 'employed' a Medical Expert. Who really didn't answer our questions about the last 2 days of Dad's life and the lack of appropriate terminal sedation, and who turned out to be just on the make compliling a farcial Medical Report!
When I compiled a list of questions about here 'strange' medical report she supplied us with an 'add on' letter. Some of the points in this letter contradicted statements made in her report!!
My solicitor suggested we have a Conference with the Medical Expert and a Barrister to try to get to the bottom of her contraditions which included:
The gap in the provision of morphine on the 10/1/06 coincided with the set up of the syringe driver.
In her report she had written that the syringe driver was set up at 2.00a.m. 9/1/06.
When asked to explain this CONTRADICTION she said 'I do not have to answer any questions, I am not in Court'.
I was absolutely distraught. Without a supportive Medical Report you cannot advance to 'Court' where I naively thought the Palliative Care Consultant from the Sheffield Northern General Hospital would be under oath to give an honest account of her lack of titrating the morphine syringe driver.
From that point I wrote a letter to Gordon Brown, Andy Burnham and the Patients Association. You can see this letter at tomsanguish.com (NHS Trauma 7/1/06 - 16/10/09).

The Patients Association highlighted Dad's case in their report, Patients Not Numbers, People Not Statistics.
I have contacted the Medical Expert about why she has not chased me for payment of her invoice for £2165.83 and I have contacted the Solictor to ask her who is responsible for chasing payment from me. SILENCE - NOT ONE REPLY.
My UKIP-MEP Nigel Farage said she must sue or concede that her writings were ERRONEOUS!!!
I am, today 28/11/09, still awaiting answers and now the Sheffield Teaching Hospital Foundation Trust has set out the time of set up and refill of the syringe driver which are ERRONEOUS.(They state set up time as being 22.50p.m. 9/1/06 on the Palliative Care Ward)
We have the medical notes which show that the syringe driver was set up at 2.00a.m. on the MAU ward and their erroneous writing's also conflict with the Medical Experts, Medical Report which says that the syringe driver was set up at 2.00a.m. 9/1/06!!!
How can good 'jobbing' Doctors work within this corrupt system?

Tomsanguish - Thank you for your comment. It puts a human face on the abstract post I wrote.

To answer your last question - we don't! - hence this post.

For whatever reason, Dr No has become aware recently of a number of specific instances where a patient's and/or relative's reasonables questions have foundered because of the difficulty of getting and interpreting medical notes. He suspect the ones he knows about are the tip of a very large iceberg...


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