by Dr Mark Burgin.
Clinical records vary in complexity from the briefest of notes to well organised systematic detailed documents. The records themselves are only evidence of how well the consultation was documented and not how well the consultation went.
Every consultation should be recorded in the clinical records for two reasons, first to ensure that the patient is safe and second to improve the performance of the medical team.
When analysing clinical records the expert must attempt to answer questions about what happened or would have happened if a breach had not occurred. A consultation from a legal perspective is whenever a duty of care arises, and would therefore include activities such as a review of the post, test results and all available information about the patient.
This legal definition is much broader than that used by some experts who prefer to refer to problems that occur outside of the consulting room as ‘system errors’.
Bolam1 refers instead to ‘the given circumstances’ which gives provide a possible defence to the defendant that wherein the system made the error unavoidable.
Analysing a consultation requires the expert to recognise not only the areas where something went wrong (acts of commission) but where something that should
have been done has been omitted (acts of omission).
Bolam considers both acts of commission and omission to have equal weight and either can cause a breach in the duty of care.
It is helpful to have a structure for analysing consultations, I have drawn heavily from other work in order to create a model.
At present the GMC considers safety and performance in their work regulating doctors and the RCGP uses knowledge, skills and attitudes in education.
My model combines both approaches to create a 2 by 3 grid (see below). Each of the six pairs refers to a different area of a doctor’s performance, I have called
the system ‘The Barnsley Clinical Standards.’
Each of the Barnsley standards has a name to aid memory and an associated statement to allow comparison with the doctor’s performance.
The Barnsley Clinical Standards.
A doctor should make a reasonably skilled assessment of the patient within the time allowed, and arrange appropriate follow up care/treatment when issues remain.
A doctor should contribute to patient’s safety by identifying and documenting red flags and where appropriate arrange investigating, treating, referring and monitoring.
A doctor should record a ‘meeting of minds’ with the patient where there are issues such as consent, capacity and patient opinions that could have an impact on the patient’s safety.
A doctor should understand the legal and clinical significance of their own and others written records, letters, prescription and reports.
A doctor should make reasonable efforts to consider what might have gone wrong when a significant adverse event (or a near miss) has occurred.
A doctor should use problem based learning plus other reasonable techniques and liaise with their colleagues to improve their performance.
There are a further three basic standards which set the background to clinical practice for the court. These will assist the court when considering what weight to give to the given circumstances.
1, A doctor should be able to demonstrate they have sufficient knowledge and skills to perform their roles.
2, A doctor should aim to achieve both performance and safety and balance by managing uncertainty, that occurs when they conflict.
3, A doctor should be honest, follow the law, record variance from guidance, behave in a reasonable way, be organised and systematic, make records and be aware of the care that they give.
Applying the standards to medical records.
Identify in the medical records all the consultations either directly from records or from indirect sources, such as colleagues records or administrative or computer records.
Request audit trails rather than a computer printed record where possible, as they include more details. For each consultation, identify where possible the author of the record and their status (doctor, nurse or administrative staff).
Transcribe any relevant entries letter for letter and include the word ‘draft’ where for instance the photocopying is poor or the entry is written.
Analyse the record for evidence under each of the six sections, and assess the performance against the statements.
I recommend using a semi-quantative scale similar to CQC to describe the performance such as:
To these four grades I would add a further grade of ‘Obviously Dangerous’ based on the legal definition of recklessness.
The expert may well have the defendant doctor’s statements, and their response to the duty of candour requests to allow assessment of the defendant doctor’s
attitudes to safety and performance.
The web of causation.
Ambiguous or inadequate records may mean that a large number of health care professional consultations may be found to be potentially in breach.
The greater the number of breaches the more chains of causation are opened - potential paths joining each of those breaches with the harms.
The resulting web of overlapping paths can make the clinical negligence report complex, and difficult to follow.
Duty of candour, requests for factual statements of usual practice can help reduce the number of health care professionals unnecessarily served with legal proceedings.
All health bodies registered with the CQC, have a duty of candour policy and risk prosecution, if the health care professionals do not comply with that policy. Request copies of any protocols that are material to the case as they will clarify what the protocol writer had intended the professional’s usual practice to be.
If the defendant doctor’s attitudes to safety and performance raise concerns. Request evidence of involvement with learning activities, CPD and significant event audits.
Simplify the web of causation by pruning all the paths with less than 50% probability as they cannot be established on the balance of probabilities.
At this stage the expert will have a number of questions or material issues that require answering before a final opinion can be determined.
Ideally the chains of causation should have a high probability. The expert should be cautious of chains that can vary either side of the 50% line depending on the answers to questions.
Some issues are factual and must be determined by the court based on the evidence that is available, for instance what was actually said in the consultation. Issues that are outside of the expert’s expertise require different specialist experts to compile seperate reports to resolve uncertainties. For instance the natural history of the disease and what symptoms were present at each material time.
There are other issues that can be resolved by obtaining further evidence. For instance triage records may not be in a GPs’ print out and pharmacists keep electronic records of prescriptions issued on home visits.
Use the recommendations section to communicate with the legal team what the material issues are, what is required to solve them, how to get the evidence and why it is needed.
Analysing clinical records systematically helps the expert reconstruct each consultation and focus on those parts of the case that are likely to be successful.
1, Bolam v Friern Hospital Management Committee  WLR 582 is an English tort law case that lays down the typical rule for assessing the appropriate standard of reasonable care in negligence cases involving skilled professionals (e.g. doctors): the Bolam test. Where the defendant has represented him or herself as having more than average skills and abilities, this test expects standards which must be in accordance with a responsible body of opinion, even if others differ in opinion. In other words, the Bolam test states that "If a doctor reaches the standard of a responsible body of medical opinion, he is not negligent".
Dr Mark Burgin is on the General Practitioner Specialist Register and is based in Barnsley Yorkshire.
He has extensive MedicoLegal experience, covering the following areas; Personal Injury - Road Traffic Accidents/Low Velocity Impacts. Clinical Negligence - Screening reports, GP Liability and Causation reports. Disability Condition and prognosis reports Disability appeals for ESA, DLA and PIP.
He undertakes regular attendance at training from solicitors and agencies, recent Bond Solon Cardiff Law school, CPR 35 and CertMR training. Submitted report for assessment. Up to date with CPD. Recent appraisal.
Contact: Dr Mark Burgin
MRCGP, DCH, Dip Medical Ethics BM BCh, MA,
Member Royal College of General Practitioners
Tel: 0845 331 3304
Area of work Yorkshire, Midlands, N West and