MDDUS PROFILE
Negligence cases rarely involve just one doctor so the
expert report must also consider the actions of other primary and secondary care physicians involved, as well as support staff , such as nurses or ambulance personnel. In the end though the primary focus will be on the actions of the MDDUS member or members. Having set down the various narrative versions, Malcolm must then examine all the evidence and determine if the GP’s actions constitute medical negligence. T e legal test of this in Scottish civil law comes from
the landmark case of Hunter v Hanley, in which Lord President Clyde wrote that in order to prove liability in cases of clinical negligence “it must be established that the course the doctor adopted is one which no professional man of ordinary skill would have taken if he had been acting with ordinary care”. A similar test (Bolam) applies in England. Malcolm further explains: “Basically it means if you do
something which no competent doctor would do if they were acting with reasonable care, then you fail the test. On the other hand, if you do what many competent doctors would have done then you don’t fail the test. T at doesn’t mean you get to make a mistake, because obviously by defi nition a competent doctor acting with reasonable care wouldn’t make a mistake.” Armed with evidence from the case
documents and the criteria set out in legal decisions such as Hunter v Hanley, Malcolm must then form an opinion on whether the MDDUS member acted with “ordinary care”. To do this he must examine the literature – guidelines produced by NICE or SIGN or other professional bodies, as well as any relevant academic papers. “Guidelines are just that – guidelines,” says Malcolm.
failed in his duty of care but nothing has changed. T e diagnosis was made a week later, and a week later does not matter to the prognosis.” “T e big legal argument tends to go around what
diff erence did it make – the causation argument,” says Malcolm, and this is most oſt en addressed by secondary care experts – say a neurologist or oncologist – more qualifi ed to judge the consequences of issues such as delayed or missed diagnosis.
Impartial advice T e product of all this deliberation is a draſt medical report, and sometimes it does not make for comfortable reading. Says Malcolm: “T ere’s oſt en a lot of injured innocence when you put in the sentence ‘in this particular situation the doctor fell below the standard expected of a responsible GP acting with reasonable care’. T ey immediately respond: ‘he’s saying I’m a bad doctor’. What it usually means is that they just made a mistake.” T e member will be asked to respond to the report but
more oſt en than not it is only factual details that change, says Malcolm. “I would very rarely end up changing the conclusions.” T e fi nal expert report provides MDDUS advisers and
“ It requires a certain turn of mind. A desire to get to the bottom of things... developing a story and then coming to a conclusion.”
“Not all are obligatory by any means. So if the doctor has done something that looks to me to be way outside of normal practice I will still check to make sure there aren’t any papers out there that say this is a really good idea.”
Causation Breach of duty of care is only one element to consider. Most negligence cases also hinge on the issue of causation – that is, did the error cause actual harm to the patient or did it make a pre-existing situation worse. Malcolm gives the example: “If I go and see my doctor
tomorrow coughing up blood and he says – ‘don’t worry about it, you’ll be fi ne’ and then a week later I go and see one of the other doctors and he gets me X-rayed and it shows lung cancer. T en the fi rst doctor has undoubtedly
lawyers a reasoned argument on how best to approach a case in consultation with the member, either to further dispute the allegations or to negotiate a settlement, most oſt en with no admission of liability. Only rarely will a case go all the way to court. One common misconception is that an expert
commissioned by MDDUS is somehow meant to act as an advocate for the member in his report. “Experts are completely impartial – they hate everybody!” says Malcolm. Joking aside, he is keen to emphasise that he is paid to provide only an opinion. “Truth and justice – that’s the name of the game. So if a
case does come to court, you only have to speak the truth, which is easier to remember apart from anything else.”
Profi le by Jim Killgore, editor of MDDUS Summons
AUTUMN 2012
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