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I hate defensive notes so sue me


I guess that fairly high on your New Year resolution list you’ll have, like me, ‘Avoid getting sued’. You will have read the recent story about the GP who was successfully litigated for allegedly giving inadequate advice about preconceptual folic acid.

You can almost hear the sound of GP towels being thrown in, and the crunch of reverse gear from potential new recruits.

Nabi, being thoughtful and analytic, took from this case lessons about the psyche of GPs and how it affects our sense of self-worth. I, being superficial and reactionary, took issue with something much more specific: the legal finger-wag that the ruling is a ‘reminder to practitioners to take clear and detailed notes of consultations’. Sod that.

Not least because it brought back dark memories. Years ago I experienced a mild but still hurtful rebuke for inadequate record-keeping, even though the associated complaint was dismissed. My diagnosis of ‘calf muscle strain’, rather than DVT, was 100% on the money, but I was advised that my notes weren’t. Why? Because I’d written ‘No clinical evidence of DVT’ rather than a detailed list of all the signs, or absence thereof, that justified this conclusion in the pre-Wells score era.

That rankled, and still does. Instead of being compelled to slavishly record the minutiae, why can’t we sensibly summarise actions and findings? This is simply pragmatism combined with professionalism. Condensing a lengthy process into shorthand saves valuable time and implies the usual practice of any reasonable medical professional – and Gawd knows we have enough scrutiny to ensure we’re that. Besides, some things barely need mentioning. For example, in this column, it’s correct to assume I feel immense sympathy for the individual with spina bifida involved in the case. I could have made a point of this, but for most individuals, and certainly caring professionals, it goes without saying.

So you’d think there could be a middle ground between cavalier brevity (‘chest pain, O/E NAD’) and hyper-defensive logorrhoea (‘chest pain, please scroll through pages of arse-covering, proforma-driven nonsense’). But apparently not. Just in case I draw the short straw in the litigation lottery, I have to type myself into RSI. 

But I only have 10 minutes per appointment, and a lot can happen in that time; to document it to defence-body standards would at least double the length of the consultation. This would have two consequences: one, fewer appointments, longer waits to be seen and possible delays in diagnosis; two, medical notes becoming so dense that we can no longer see the signal for the noise – leading to error. 

In other words, writing defensive notes could increase our risk of getting sued.

So it’s lose-lose. The only solution I can think of is to record every consultation – technology and secure storage permitting. Augmented, of course, by a running commentary to document any examination, with an explanation that we’re not being weird, the lawyers made us do this.

So that’s another resolution for you. Avoid seeming weird.

Dr Tony Copperfield is a GP in Essex.

Read more of Copperfield’s blogs here


Patrufini Duffy 10 January, 2022 6:03 pm

April 2022 is going to be one utter humiliation and interrogation of your documentation skills like never before. The dirty web setting you up, and fuelling antagonisms just got stickier. And some of you are sleep walking into it. To the lay public, who have an unfortunate U in Biology and C in English language, and who innately hate GPs anyway in preference of instagrammers and footballers, they’ve been given amunition. In the name of patient autonomy and patient centeredness. Wrong public to try it on, this isn’t Japan or Scandanavia. Perhaps after a few years, the UK public will have fully learnt how to deliver General Practice via their NHS app and and complete complex multifaceted tasks in 10 minutes and a final plan to go to the pharmacy for some paracetamol, or drink some water for their post-weekend headache change. To those of you maintaining a 10 minute rule, and hammering your beleaguered duty doctor with 50 patients, that game is over, for any sensible professional. Only if you reduce capacity, will anyone “up there” listen. They help hospitals in “critical” – not you however. You can break your back, but it takes one smart chestnut to take the food off your family’s table. Tweetable screenshots of your consultation will be sweet music to the Daily Snail. A registrar once said, either don’t see the complaining patient, and the responsibility lies with them, or listen very very carefully. As soon as pen hits the paper, then it happened. I wonder what their response will be when you list their illicit drug use, may silence some, some not. We hope Pulse has enough unfortunate giggle and exhausted captions in the Getty stock to get through to summer.

Katharine Morrison 11 January, 2022 11:14 am

In order to sort out litigation their should be longer and fewer consultations and adequate time to have breaks and administration. All consultations except for when a patient is dead or dying (and that has been agreed to by the doctor, patients and relatives) should be in a surgery with full video and audio. Records of these would need to be kept for 25 years. Of course GPs would not be able to see anything like the volume that they do now. Therefore the NHS would would be overtly rationed as to what it would manage and what it would not, and when private services or co-payments would be necessary. Item of service for every single patient would be required. This would improve doctor morale no end, would teach patients to value the service they get, encourage them to look after their health, and stop the doctors as being used as cash cows in the litigation game.

David Turner 11 January, 2022 1:36 pm

I work on the assumption as GPs seeing thousands of patients over the course of our careers, we are all fairly likely to get sued at some point and this is why we pay vast sums to defence organisations for them to worry about it.

It is a bit like if you drive 20,00 miles per year every year, eventually you are likely to have an accident and that is what car insurance is for.

If I make a mistake I will apologise, if it is a malicious complaint I will say ‘bring it on and let the MDU deal with it’. Either way no point losing sleep, life is too short.

Mike Baverstock 12 January, 2022 10:15 am

You are totally on the money Tony, as usual. You too David. No point in losing sleep – just do what you can – given lack of time and other constraints – to reduce threat. Trust your instincts too.
The golden rule is to not take complaints personally. It’s just a throw of the dice. And a lot of luck

Jonathan Heatley 12 January, 2022 11:17 am

100% back Tony’s feelings about this. As a traditionalist GP used to coping with large numbers of patients its impossible to write defensive notes. As a result I have had the ‘pleasure’ of a notes taking disciplinary course with 30 other poor sods in a similar situation. The guideline driven agenda and judgement machine is making the job really difficult and demoralizing, so its no wonder the younger GPs are scared of seeing more than 30 patients a day. The job becomes boring and tedious when so much negative findings have to be recorded for the one in 1000 consultations that are problematic. We are rapidly destroying general practice that has been so successful since the start of the nhs. What a shame….

David Church 12 January, 2022 2:06 pm

Surely the patient covertly recorded the consultation anyway;
So it is not my word against theirs;
It is my brief notes against their, ….. er… lost. non-existent tape.
So they fail the evidence production test, and should lose the case.
I have been criticised for writing too much, yet I would use summaries like ‘no signs of DVT. happily.
It’s a little harder justifying the referral ‘Please accept this patient who needs treatment for a chest infection, and cancer – but that’s just a gut feeling, I do not yet have the CT scan result’ but I was right. (No I didn’t use those exact words – something more like a referral I once received from a GP of a ‘fungating breast abcess’ which made me think ‘abcesses don’t fungate do they’ along the right lines.

Paul Scott 15 January, 2022 11:54 am

Pete Holden has summarised the issue that you can have “capacity, quality or speed of response” but in current general practice, you can only have 2 out of these 3 at any one time. For medico-legal safety, this usually means speed goes – hence delays or shift to only urgent bookings, but all 3 get squeezed. Our patients on average, because of lack of non-covid secondary care, are getting ever more complex. This in now a serious challenge for experienced GPs, used to balancing the risks. Newly qualified GPs struggle not to get overwhelmed and burnt out. This is now hard-wired into the NHS and the system implies it is a resilience issue for us. Whenever it then dumbs down the process (quality), such as 111, it is overwhelmed elsewhere. Why do NHSE/RCGP/GPC seem to ignore this?