Medicolegal Advice

ClientCare

What Duty Do You Owe?

In this day and age there are always reports in newspapers about people suing hospitals for clinical negligence. The cases reported often refer to surgery gone wrong,delays in delivering babies resulting in brain damage or misdiagnosis.Very rarely do you hear aboutcases against physiotherapists. So what duty of care do physiotherapists owe to patients? In this article Auriana Griffiths, partner at national health law practice Alexander Harris, takes a look ata case study to illustrate some of the issues facing therapists.

Whilst the reference in this article is to physiotherapists, the general principles apply to others such as exercise therapists, pilate’s teachers, osteopaths and chiropractors practicing in England and Wales. However,if specific advice is needed for therapies other than physiotherapy, specific advice should be obtained from a specialistin that field.

Duty of Care and Negligence Not everyone knows what test is applied to determine whether or not a practitioner has been negligent, so I will start by summarising the test in force in England and Wales for professional negligence. In order to be successful in a clinical negligence case, we have to prove that (a) a duty was owed to the patient; (b) the duty was breached; (c) the patient suffered damage, i.e. an injury that has resulted from the breach of duty. In clinical negligence, when considering part (b) of the test, the court will consider whether the standard (of care/treatment) that was afforded to the patient by the practitioner was below the standard to be expected of a practitioner in that particular field at that time. So, if we are considering the care/treatment delivered by a physiotherapist in 2002 then we have to consider the standards that were reasonable in 2002, rather than applying today’s standards to an event that occurred in 2002.

In order for the court to decide whether the physiotherapist breached his/her duty to the patient, a report will be obtained from an expert physiotherapist who will review the actions of the physiotherapist in question and advise the court accordingly. It is important to remember that there has to be some damage. So often I get calls from people who complain about treatment they have received but there has been no damage. If there is no damage as a result of the alleged negligence, there will be no case.

There will also be rules of professional conduct produced by the Chartered Society of Physiotherapists or other applicable professional bodies and special interest groups. Therapists should consider these rules because such rules will often be referred to as the standard to be expected of therapists and those falling short of those standards may well find themselves investigated if something went wrong as a result of the short comings.

John is referred for physiotherapy. He suffers from diabetes. The treatment he undertakes is a group-based exercise class and at the beginning of the session the physiotherapist asks for a show of hands to see if anyone has any injuries. John does not consider himself to be ÒinjuredÓ and therefore does not raise his hand. Unfortunately during the exercise class he has a hypoglycaemic attack resulting in a diabetic coma. What duty of care is owed by the physiotherapist during a group exercise class? To what extent does the physiotherapist have a duty of care to find out the medical history of each person attending the session? Is it John's fault that he didn't make the physiotherapist aware of his medical condition? To assist me in answering these questions I spoke with an expert I regularly instruct, who is a physiotherapist. I am a lawyer, not a medical expert. I can explain how the law is applied to a set of facts but on the medical issues lawyers must take advice from experts in the relevant fields when considering what is appropriate in the circumstances.

The key is to always know the patient's medical history before you treat them. The physiotherapist should always have access to the relevant information, whether through medical records, or a medical screening questionnaire. It is vital that the physiotherapist reads the notes of the person referred to them. The situation in the case study would probably have been avoided had the notes of the person been sent to the physiotherapist when the person was referred or if the physiotherapist had taken some time before commencing treatment to go through the medical history of the patient. It would not be a defence in the example above to say that the patient did not tell the physiotherapist of his condition and therefore how could the physiotherapist have known. The duty of care of the physiotherapist in circumstances such as those in the case study goes as far as their knowledge of the patient's condition. The physiotherapist has a duty to find out the medical history of the patient before commencing treatment.

Going back to the issue of damage, I mentioned earlier that if there is no damage, there is no case. In the case study, consider whether the outcome would have been different if the patient was fine and did not end up in a diabetic coma. There would still be an arguable breach of duty in failing to find out the patient's medical history but, as there is no damage, there would not be a case.

The Recommendation

So, how do you ensure that you have sufficient information before commencing treatment? You might not always have access to the patient's medical records.Well, I recently went into hospital to have 2 of my wisdom teeth removed. The oral surgeon who operated on me knew nothing about my medical history and did not have copies of any of my records save for his own. The important action he therefore took was to spend a 30 minute session going through a carefully prepared list of pre-operative questions. This ensured that the information he and the anaesthetist needed before commencing surgery was obtained.

In conclusion, the key points to remember are:

Know your patient
Consider using a questionnaire for your patients to fill in to gain as much information about their medical background
Consult rules of conduct produced by professional bodies and special interest groups

For further information contact Auriana Griffiths Partner at Alexander Harris Solicitors,
Tel: +44 (0) 8700 778877
E-mail: auriana.griffiths@alexanderharris.co.uk
Web: www.alexanderharris.co.uk

PhysioLife CPD Prompt A useful example of prescreening medical assessment questionnaires can be found at www.mystudiosoft.com