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Independents' Day

GPs 'likely' to face litigation from 'ambulance chasers' due to electronic patient record access

The opening up of GP patient records could leave every GP practice open to litigation from lawyers looking for medical negligence claims, a leading primary care academic has warned.

Professor Tom Marshall, professor of public health and primary care at the University of Birmingham, said that GPs have to be more prepared to justify decisions departing from agreed NICE guidelines as electronic records will be easier to search for lawyers looking for examples of potential medical negligence.

This could affect prescriptions of anticoagulants for patients with AF and the prescription of statins for patients with a 20% to year CV risk.

Under new contractual requirements, GPs must provide electronic access to all summary care records by next month, and full access to coded information by April 2016.

But writing in the March issue of the British Journal of General Practice, Professor Marshall claims that these moves may have ‘previously unforeseen consequences for medical litigation’.

He said that failure to follow NICE guidelines have been the basis of medical negligence claims in the past, including those relating to anaesthetic practice.

The article, titled Electronic ambulance chasing: patient records, guidelines and the law, states: ‘If a doctor departs from clinical guidelines, fails to record a rationale for doing so and their patient suffers a foreseeable adverse outcome as a result of this departure, this could be the basis for a medical negligence claim.

‘Do electronic patient records have implications for this? Quite possibly. Electronic records must be disclosed to claimants on request and it has been suggested that extensive electronic documentation is likely to affect the conduct of litigation. I would argue that it is also likely to affect the likelihood that litigation is initiated in the first place.’

He argues that previously, a patient who suffered an adverse event would first take legal action, and then request medical records.

With the opening up of medical records, he says: ‘Lawyers could actively seek permission from everyone who suffered an adverse event to search their records in the hope of identifying an opportunity for medicolegal action. We could think of this as a kind of electronic ambulance chasing.’

Professor Marshall says that an analysis of electronic patient records reveals that 84% of patients with AF meet criteria for the prescription of anticoagulants, but only 51% of them are on the treatment.

He adds: ‘This means that about 12.3% (84.5% × 50.7% × 28.8% = 12.3%) of first strokes occur in patients with AF whose electronic patient records show that they are eligible for anticoagulants but not receiving them.

‘To put it another way, from the perspective of a medical negligence lawyer this means that the records of only eight stroke cases need to be screened to find one possible negligence claim.  Across the UK this amounts to 8,456 cases per year (12.3% × 68,536): about one per general practice per year.’

Dr Caroline Fryar, head of advisory services at the Medical Defence Union, said: ‘Guidelines inform clinical practice but don’t dictate it. They do not replace the knowledge and skills of clinicians. Doctors are expected to be familiar with any nationally recognised guidelines that are relevant to their specialty, as well as any local guidelines.  This does not mean they cannot depart from guidance in specific situations when they consider it to be in the patient’s interests to do so.

‘Doctors must be prepared to explain and justify their decisions and actions, especially if they depart from guidelines produced by a nationally recognised body. It is also important to keep a record of the reasons for their decision, including any discussions with the patient.’ 

Readers' comments (19)

  • There will be less risk of litigation if patients are charged for their prescriptions and also their consultations - then patients themselves will refuse to purchase statins and anticoagulants - once they are informed about the advantages and disadvantages of these medications. Even if they start taking these medications, after a while they wont be bothered to purchase these medications because they would rather change their lifestyle and be more naturally healthy than spend their hard earned money on doctors consultations and prescriptions.

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  • What will not be taken into account is the lack of resources for us to follow up all our patients so we can consider the latest guideline.

    Being a GP is becoming an impossible task. The Government should be payingthe increase in our indemnity fees as it is the cause of them going up.

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  • I can see this becoming the death-knell of general practice. No GP will have the time to check up on every aspect of every patient's care in this nit-picking way. We will also have to spend HOURS justifying our actions, our comments, etc

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  • The guidelines have been only agreed by NICE. They are only guidelines. The methodology of their construction is flawed and many are not applicable to day to day practice. Guidelines are one of the there components of Evidence based medicine, the other components being the individual patient ( their precise need as modified by other comorbidities and prescription medications as well as personal choice) and the clinical expertise of the doctor deploying the evidence, as it appears in the guidelines, and applying it to the needs of the individual patient. Lawyers and politicians must not be permitted to dictate clinical practice. Adherence to guidelines is mono dimensional unthinking behaviour which precludes rational thought and clinical evaluation. Were the scenario described above to become the norm we may as well pass over care to anyone with GCSE level English.

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  • Peter Swinyard

    I would love to know how many "authoritative guidelines" already impinge on our practice - after all, we cover every illness known to man - and a few others.
    I would love to know how long it would take just to read them all.
    I already spend silly amounts of time in writing "CMA" notes (cover my a...) about what I have told my patients. just as well I type fast.
    When should I spend time with my patients being a doctor? If I have to refer to every guideline for every condition presented by a patient, I would need 1 hour consultations.
    Where will this end? Parliament has too many Lawyer-MPs for any chance of ending contingency fee litigation.
    I know NHSE is talking to the defence bodies about Crown Indemnity for GPs. Can't come too soon.

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  • I'm sorry to burst your balloons but saying NICE is a guidance doesn't cut it in the court of law.

    I've got first hand experience of how it works - party to a multi-party law suit now going over 3 years in proceedings. Every side will have their own expert witness - none are real life full time practicing GPs (or secondary care for that matter). Most of them are very partial clinicians, many sitting on boards of influencial academic institutions like NICE. They'll tel you your reasons are not valid, regardless of how logical it is and even if you've done everything the defence will be "vulnerable" as long as the patient experienced a harmful outcome. As you'll be judged by juries, who are always sympathetic to patients who had negative outcome, solicitors know you are very likely to loose.

    If I was you, I'd stick to NICE guidance unless you have the time, experience and effort to have more ACADEMIC expertise then those sitting on the NICE board. But if you do, you won't be seeing patients anyway.........

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  • well soon there wont be any GPS left to sue

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  • ..and you want to encourage more doctors to enter General Practice..pfffttttt!

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  • Do you think patients are going to understand managing uncertainty? I doubt it. As they become more informed and more involved in their health care then investigations and referrals will sky rocket as individuals will always want to remove the tiniest smidgeon of doubt "just to be on the safe side". We have acted as successful gatekeepers - keeping a lid on NHS costs- for so many years but this is all about to be swept away as patients force the gates wide open. The only way to stop this is for politicians to be honest for once and tell people they can't all have what they want. I have just watched a clip of Hunt explaining away the recruitment crisis and so don't hold out much hope.

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  • You only have to look to America to see where this is going. Medical records are written by doctors for doctors as an aid memoir, they were never intended to be a contract.

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