Will My Doctor Tell Me If I’ve Been A Victim Of Medical or Clinical Negligence?

There is no shortage of medical-based dramas gracing the small screen. Whilst the accuracy of some no doubt leaves a lot to be desired, as I was watching Episode 5, Season 1 of Grey’s Anatomy (yes I know, where have I been since 2005!), it reminded me of the importance of the professional duty of candour in the UK and how this little talked about principle is vital when it comes to learning from and preventing future acts of medical negligence or clinical negligence.  

For those of you who, like me, are a relative novice when it comes to all things Grey’s Anatomy related, in Episode 5, Season 1 “Shake Your Groove Thing” it transpires that the patient at the centre of this episode (Stephanie Drake) had previously been admitted to Seattle Grace Hospital when the now head of cardiothoracic surgery (Dr Preston Burke) was a surgical fellow.  

During the episode, Mrs Drake attends Seattle Grace Hospital some 5 years after her left upper lobectomy complaining of chest pains. These chest pains had been present since her previous operation and despite her quitting smoking (as advised).  

After various investigations into her ongoing chest pain complaints, including a laparoscopy, it transpires that a surgical towel had been left inside Mrs Drake’s lung and this was the cause of all of Mrs Drake’s problems. 

Mrs Drake required further surgery to remove the towel and was, understandably, rather shocked about what had happened. Dr Burke had been responsible for the swab count and had been in charge of “closing up” Mrs Drake’s chest incision during the original operation. 

Whilst there is some confusion as to who precisely left the towel inside Mrs Drake, Dr Burke ultimately confesses to the fact that it was his error and he should have come forward sooner.  

Leaving aside the fact that leaving a surgical towel inside a patient is a surgical “never event” and simply should not happen, Dr Burke’s actions in failing to speak out for fear of reprisal is arguably demonstrative of many patients’ fears. The fear is that a medical practitioner or organisation will not tell them if something has gone wrong during their medical treatment, for fear of reprisal.  

What is the duty of candour in the UK? 

Since 2013, the General Medical Council has imposed upon medical practitioners an ethical duty of candour to be open and honest with patients when things go wrong, and if there may have been clinical negligence. 

In November 2014, a statutory duty of candour was placed on all NHS Trusts and from 1 April 2015, the same duty was extended to all independent health care and adult social care providers. This statutory duty requires organisations to, amongst other things, notify patients of any “notifiable safety incidents” as soon as practicably possible. 

But what precisely is a “notifiable safety incident”?  

For NHS Trusts, a notifiable safety incident is something unintended or unexpected in a patient’s care that, in the reasonable opinion of a health care professional, could result in or appears to have resulted in: 

• their death (not relating to natural progression of an illness or condition); or, 

• them suffering severe or moderate harm, or prolonged psychological harm. 

For non-NHS bodies, like GPs or private healthcare providers, there is a little more guidance. Like the above definition, a patient needs to suffer something unintended or unexpected during the course of their care that, in the reasonable opinion of a healthcare professional, appears to have resulted in: 

• their death (not relating to natural progression of the illness or condition); 
• impairment of sensory, motor or intellectual function, lasting or likely to last for 28 days; 
• changes to the structure of the body (e.g. amputation); 

• prolonged pain or psychological harm (defined as experienced or likely to be experienced for at least 28 days; 
• shortening of life expectancy; or, 
• the need for treatment to prevent death or the above adverse outcomes. 

What all of the above means is all medical professionals, be they private or NHS clinicians, are under an ethical duty to tell you if something has gone wrong during the course of your care. In addition to this, the statutory duty of candour means that all private and NHS organisations are under a similar duty.  

Is a notifiable safety incident the same as medical or clinical negligence? 

What all of the above means in practical terms is that you should be advised if something has gone wrong during the course of your medical care which has, or could have reasonably resulted in, you suffering from harm. 

Once you have been notified of the fact that something has gone wrong, what will usually then happen is that an investigation will be opened into your care. 

During the course of the investigation, the NHS Trust or private healthcare organisation, will likely interview your treating clinicians and review your medical records. 

You should then receive a report, or letter, setting out their findings and you may be invited to a meeting to discuss the report. 

The purpose of these “Root Cause” or “Serious Incident” investigations and reports is to look into the circumstances surrounding what happened. 

Quite often these reports will also provide an opinion as to whether or not any harm you have suffered could have been avoided and what steps can be taken in the future to prevent the same incidents from happening again. 

Importantly though, the report will not tell you whether or not the care you received was negligent. 

The test for negligence is different to that of something being a “notifiable” safety incident; however, Root Cause or Serious Incident reports can provide a useful starting point for any clinical or medical negligence practitioner when they are considering whether or not you have a claim for negligence that should be investigated.