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Atrial fibrillation is a common cardiac arrythmia that predisposes a patient to stroke. That risk can be mitigated by prescription of anticoagulant.

I was recently discussing the use of heparin (an immediate, injectable anticoagulant) in the community with a consultant colleague. He suggested that when such a patient is discovered, he should be immediately anticoagulated, rather than wait until warfarin (an oral anticoagulant) takes its effect over several days. This is not common practice, because a patient discovered in primary care is likely to have been in atrial fibrillation for weeks or months, and a few days more at risk of stroke is unlikely to make much difference. “Ah”, my colleague said, “medicolegally, when you actually know your patient is in atrial fibrillation, you should act.”

Whenever anyone uses the word “medicolegally” or the phrase “for medicolegal reasons”, I know that they are not specialists in this field. The defence to a charge of negligence is whether a doctor’s actions would be supported by a reasonable body of opinion, not whether a doctor thought of every possible risk and acted accordingly.

This misunderstanding leads to overinvestigation and overtreatment. Such a distinction is crucial for primary care physicians to appreciate, where a lot of risk management takes place. Similarly, such superfluous treatment or investigation would not be a defence, if it were not supported by the famed reasonable body of opinion.

Those readers who remember “The Hitchiker’s Guide to the Galaxy” will recall that the answer to the Ultimate Question of Life, the Universe and Everything was “42”. However, no one could understand this, as they hadn’t understood the question.

In my clinical practice I have to restrain junior colleagues from carrying out investigations, sometimes labelled as “routine”, without a clear idea as to what question is being asked. Therefore, the result, be it normal or not, does not advance the understanding of a patient’s presenting complaint.

In the medicolegal world, the situation is made more complex by the erroneous belief that ordering investigations, for no good clinical reason, will protect a practitioner from a lawsuit. Of course, a defence depends upon one’s actions being supported by a reasonable body of opinion, and not how many investigations were ordered. However,  not acting upon an abnormal result – presumably because the result is not understood because the reason for doing it was not clearly formulated – is likely to attract criticism. I have recently been asked to give an opinion on two such cases.

The Claimant attended the out of hours centre complaining of breathlessness. The attending doctor examined him, and measured the oxygen saturation of the blood in his fingertips using a standard piece of equipment called a pulse oximeter. Having measured an unexpected, and extremely low reading, he felt that there was something wrong with the device, and did not take heed of the result, supported by, as he saw it, his clinical judgement. The patient went home instead of being admitted to hospital, and died a few hours later.

The point is that using the pulse oximeter in the first place was not mandatory. I could have supported his actions with reference to the legal test in depending upon his clinical judgement alone, especially since the consultation note was comprehensive and of high quality.  However, in my opinion, no reasonable body of opinion could support neglecting the  pulse oximeter reading, even if it were not strictly necessary an investigation.

The second case was around an alleged late diagnosis of  large bowel cancer. There were many aspects of the care over which the Claimant’s representatives had raised concerns.  Relevant to this article is that at some point the Defendants had ordered a blood test for estimation of “C reactive protein”. This is a sensitive, but non specific test for inflammation or infection.  The result was unexpectedly high, and the Defendant passed it off as normal, and ordered a repeat in one month, when it was still elevated. No action was ordered at this point either.

Once again, the point is that omitting to carry out this test in the first place could not, in my opinion, be criticised.  It was entirely unclear as to why this had been performed, other than it is on a long list of tests that can be ordered by ticking the box on the request form. What cannot be supported is the subsequent failure to act on the result. Although its significance in relation to a patient with bowel cancer is unclear, no reasonable body of opinion would support doing nothing.

It is clinically, and medicolegally, wholly unsatisfactory to order tests and investigations without a clear understanding of the indications and limitations of such, and consequently, without an understanding of how to interpret the results.

Letters of Claim from Claimant solicitors frequently include a reference to National Institute of Clinical Excellence (NICE) guidelines, in a form something along these lines under a heading “Breach of Duty”: “Dr X was in breach on [date] when he did not follow the NICE guidelines.”

It is necessary to appreciate the role and the scope of NICE. It is to be hoped that NICE give reasonable and learned clinical guidance, but their remit is, in fact, to assess treatment and investigation by cost-effectiveness.

Furthermore, this approach is not consistent with a correct application of the Bolam test. As usually framed, a doctor may be negligent if “no reasonable body of opinion” would support his or her actions. The test does not define a reasonable body of opinion, let alone specify which one should be accepted by a Court. There may be several “reasonable bodies of opinion” in respect to a clincial scenario, of which only one may be that specified in NICE guidance. So, while adhering to NICE guidelines is probably a defence in most situations, not doing so is not prima facie evidence of negligence.

I am of the opinion that aspects of NICE guidance are in fact illogical, and therefore  do not consitute a reasonable body of opinon, or to follow them would fall foul of the Bolitho test. Part of NG12 (guidance on referral for suspected malignancy), used to state – to be fair it has been revised –  with respect to bowel cancer, that a patient over 50 (but under 60) with altered bowel habit should have a faecal occult blood test (biochemical detection of blood in the stool) test before referral. However, since this test has a 50% false negative rate for bowel cancer (that is, 50% of people with bowel cancer do not have blood detectable in the stool), it seems to me that to follow this guideline would not be “reasonable”.

It surprises me that expert witnesses feel that it is necessary to comment on a doctor’s competence, when asked to give an opinion on whether the actions of a doctor were negligent.

I was asked to assist the MDU in a case where the Defendant doctor had not detected a breast cancer.

The Claimant attended the GP saying that she could feel a lump in her breast, The GP examined her, and could not. The GP asked her to return in one month if she still thought it was there.

By coincidence, the Claimant attended an out patient clinic the very next day, when she was assessed for breast reduction surgery. She was listed for an operation. A few weeks later, a breast cancer was found at breast reduction surgery.

The allegation of negligence by the GP was supported by an expert who opined that “…the GP was negligent, because any reasonably competent doctor would have detected the breast [tumour]”

This argument is deficient on several grounds. Firstly, it is by no means clear that a “competent” doctor would have done so – after all ,this claimant was examined by breast surgeons on two occasions in the ensuing weeks, and the tumour was not detected by them.

Secondly, on what evidence does the expert rely to assess the Defendant’s competence? Did he observe the Defendant examining the Claimant? The only reason that the expert has labelled the Defendant as incompetent is because the Defendant did not detect the tumour on examination. This is a circular argument.

Thirdly, and most damning, is that the Bolam test does not depend upon an assessment of competence. It would be the case that an incompetent doctor is more likely to be negligent, but it does not follow that all negligence derives from incompetence (far from it), or that all poor clinical outcomes are the result of poor performance. After all, even objective investigations such as laboratory tests, or imaging, can fail to detect important pathologies.

Expert witnesses should restrict themselves to applying the appropriate legal test when asked for their opinion. When I pointed out that the Defendant’s action would be supported by a reasonable body of opinion, given that the history and examination were well documented, the allegation was swiftly dropped.

But not after substantial time and resources had been wasted because of an unsustainable opinion that inappropriately encouraged the Claimant and her legal advisers to pursue a claim.