Medico-legal aspects of gastrointestinal imaging practice

CHAPTER 2 Medico-legal aspects of gastrointestinal imaging practice



Peter Hogg, Charlotte. Thompson



Contents


Introduction

Negligence – a definition

Where might negligence claims arise in GI imaging and therapy?

How does your patient succeed with a (legal) negligence claim?
image Duty of care

image Breach of duty

Did the breach cause harm to your patient?

Regulatory body investigations

Where will the financial liability lie?

Time limits for claims

Consent

Protocols

Patient Group Directions – the special case protocol

A final thought

References


Introduction


The past two decades have witnessed significant advances in clinical care; alongside this, national standards of care have been implemented. The availability and quality of information to inform care has also increased and various vehicles for sharing information and practice have been improved. To enhance services further, many non-medical health professionals such as gastrointestinal radiographers and gastroenterology nurses have engaged with a wide range of diagnostic and interventional/therapeutic advanced clinical roles. Not surprisingly, the potential to deliver a good standard of healthcare is high. In the past two decades, the rights of patients have also improved significantly; this includes the patient’s ability to: contribute to healthcare policy formation; receive information about their health and care; exercise choice on where and when they receive their care; exercise their right to complain about the standard of care they receive and, associated with this, their ability to initiate a [legal] negligence claim.


Negligence on the part of the healthcare team, or their employer, can result in a legal claim. Such claims are on the increase (Berlin, 1999; Alderson and Hogg, 2003), possibly because of a greater awareness about compensation being sought from a suboptimal outcome – where the fault lies with another, or possibly because there is a greater awareness of the claims process itself – particularly notable on local radio stations through advertising. Some argue that public expectations of healthcare have been raised to an unrealistic level (Butt, 1998) requiring an increasing emphasis to be placed upon educating the public about realistic expectations. This might be worth considering during your contact with patients during the explanatory and consenting phases.


Within this chapter, we shall explore aspects of clinical negligence associated with imaging and therapy of the GI tract. The general principles outlined are likely to apply to most countries; however, it is important that you familiarize yourself with the legal processes in the country in which you practice, because conceptual and procedural differences will exist. We will not consider the detail of the legal claims process; however, if this interests you we would recommend the article by Alderson and Hogg (2003) which explains the process of a legal claim in English law.



Negligence – a definition


Negligence is a legal concept in which there is failure to act with the prudence that a reasonable person would exercise under the same circumstances, resulting in an unintended injury to another party. Negligence is the most common form of Tort, and Tort is a civil wrong committed against a person for which compensation will be sought through a Civil Court.



Where might negligence claims arise in GI imaging and therapy?


A claim can arise whenever a patient in your care is exposed to a risk that has not been explained adequately, minimized appropriately or contingency planned for. If your patient feels aggrieved by their standard of care, they may seek legal advice on what might be done to help them. Important points for you to consider about your clinical practice are:


• have you identified, adequately, risks that patients in your care will be exposed to and,

• after identifying the risks have they been addressed adequately to deal with actual or potential consequences?

Table 2.1 offers a number of circumstances where claims might arise.


Table 2.1 Circumstances in which claims could arise



























Category of claims Examples
Inadequate patient care
Not identifying your patient adequately

Failure to identify that the examination requested is inappropriate for the related clinical history, (for example) if a barium enema has been requested for a patient with bloody diarrhea

Harming your patient because of a basic failure to care for them

Causing the death of your patient

Not adapting technique in accordance with any pre-existing patient conditions

Gaining inadequate consent from your patient

Failing to maintain confidentiality
Poor medicines management for the prescription, supply and administration (including x-ray contrast media)
Administering the wrong medicine/drug such as the inappropriate use of Buscopan or Glucagen or not ascertaining whether a patient had renal impairment before administering magnesium citrate (e.g. Citramag) as a bowel preparation

Administering the wrong dose of medicine/drug

Failing to check the medicine/drug for technical matters (e.g. contamination, expiry date, concentration)

Administering the medicine/drug by the incorrect route

Failing to check whether your patient would react adversely to the medicine/drug; this would include allergies, sensitivities and drug incompatibilities
Poor radiation protection measures
Not observing radiation protection measures, particularly for females of child-bearing potential

Failing to plan, adequately, radiation therapy fields (under- or over-irradiation)
A lack of competence to perform the task
You are not competent

Junior qualified staff are not competent and have inadequate supervision

Staff ‘in training’ are not competent and have inadequate supervision
Failure to articulate significant known risks about the procedure to your patient
Failure to advise on treatment of side effects to radiotherapy, initially and on follow up

Failure to indicate that a diagnostic or interventional procedure has associated side effects and/or complication rates
Failure to interpret and articulate the result of a diagnostic procedure
Writing a report that is misleading or open to misinterpretation (ambiguous)

Failing to detect an abnormality/pathology when one is present

Failing to inform the referring clinician that you have found an abnormality/pathology

Identifying an abnormality/pathology on the incorrect side of your patient
Inadequate communication of bad news to patients  

On examining the list in Table 2.1, it becomes clear that the points are representative of unreasonable/poor clinical practice. Alternatively, engaging in reasonable clinical practice (the converse of the above) would improve the patient experience and outcome and also minimize the chance of a legal claim. Reasonable clinical practice, therefore, does not need to have a purely litigious basis; its basis would build on reasonable standards of care and management that are expected of highly skilled and educated practitioners.



How does your patient succeed with a (legal) negligence claim?



Duty of care


Following a prescribed legal format, the claimant (e.g. your patient) alleges there has been personal injury (or even death). To be successful the claimant needs to establish that:


1. You (the defendant) owed them a duty of care

2. You were in breach of that duty

3. Your breach of duty caused (predictable) harm to the patient (claimant).

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Dec 26, 2015 | Posted by in GASTROINTESTINAL IMAGING | Comments Off on Medico-legal aspects of gastrointestinal imaging practice
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