Clinical Negligence Made Clear

Primary Healthcare
mary healthcare providers is the advice given. It is sometimes said that GPs
apply the rule of three – on the third attendance for the same problem they
will refer the patient to a specialist. Of course, that is a crude generalisation
but it is nevertheless true that GPs will often assess the patient as being well
enough not to require specialist intervention, but having the potential to
deteriorate or to need specialist help if their condition does not improve.
There are subtle but important differences between advice to “come back if
worse”, and to “come back again if does not improve”, or to “come back if still
concerned.” In some cases, it is negligent for a GP not to give a specific date
to return for review, rather than leaving it to the patient to make their own
mind up about whether and when to return. Advice about what symptoms
to look out for – those which might indicate a deterioration in the patient’s
condition requiring urgent specialist attention – is very important, just as
important sometimes as giving the patient some tablets for their pain, or
some antibiotics for a suspected bacterial infection. Sometimes the patient
is putting on their coat ready to leave when the GP gives that sort of advice
and it may not be fully understood. Court cases can turn on these small
details.
Such are the demands on general practice that sometimes GPs conduct
consultations by telephone. In Payne v Jatoi [2018] EWHC 871 (QB) Mrs
Justice Lambert was satisfied that the GP had acted reasonably when not
diagnosing a fractured hip after a telephone “triage” of the claimant who
had suffered a fall at home. General practices also make increasing use of
practice nurses. The standard of care expected should be that appropriate to
the role so it is no defence that the person carrying out the role was a nurse
rather than a medical practitioner. Practice nurses who are deployed to carry
out assessments of skin lesions of breast lumps etc should be properly
trained and experienced and ought to follow the same guidelines as general
practitioners.
Locum GPs may be employees or agents of the practice such that the practice
is vicariously liable for their negligence, or they might be employed by
an NHS body, or they might be sued individually if they are indemnified by
a Medical Defence Organisation. The new Clinical Negligence Scheme for
General Practice would cover the negligence of locums. In Brayshaw v The
Partners of Apsley Surgery and O'Brien [2018] EWHC 3286 (QB) Mr Justice
Martin Spencer found that the GP partners were not vicariously liable for
the acts of a locum GP, later erased from the medical register for misconduct,
who had advised a patient with mental health problems to eschew
medication and to put her trust in God. The court held that notwithstanding
the claimant's lack of credibility on a number of issues, the locum GP
had been negligent and had caused injury thereby. However, the partnership
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