We explore the risks doctors take if they undertake procedures which stretch their competence.
A recent case, handled by Kennedys, raised the issue of the standard of care, the courts consider patients are entitled to receive when undergoing particularly tricky procedures. The law is actually well developed on the point but it does no harm to set out the principles again, if only to remind doctors of the risks they take if they undertake procedures which stretch their competence.
It is common knowledge that the Bolam test provides the framework for assessing, whether the standard of care has been met in any particular case. The test established in this 1957 case was that:
"a doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art".
When assessing the standard of care provided, a like for like comparison is performed. Namely, if a patient has been treated by a junior doctor, the care he or she provided will be judged against the standards of care of a reasonably skilled junior doctor, rather than a consultant.
But the matter is a little more complicated. The court must be satisfied, that it was reasonable for the treatment to have been provided by a junior doctor in the first place. In cases where a junior doctor substitutes for a consultant during a ward round due to illness, say, it is no defence that the more junior doctor could not reasonably have been expected to pick up a particular problem because he/she did not have the consultant’s level of experience. Provided consultant-led ward rounds were standard practice, the court will judge his/her care against the standard expected of a reasonably competent consultant.
The importance of matching the level of skill of the doctor to the particular medical problem in hand applies, in similar fashion, to cases of particular difficulty. If a surgeon undertakes particularly complex orthopaedic surgery, for example, the standard of care against which his/her actions will be judged will be that of an orthopaedic surgeon reasonably skilled in that type of surgery. In other words, the standard "adjusts" to take account of the fact that a task in question may require special skill. Moreover, the law defines a reasonably competent practitioner as one who recognises when a case is beyond his/her skill. It then becomes his/her duty either to call in a more experienced doctor or to order the removal of the patient to a hospital where skilled treatment is available.
The instant case involved the treatment of a particularly difficult fracture and the expert raised some interesting points: He maintained that most average surgeons would not have had the insight that he/she might have difficulty handling this particular fracture or realised that the reduction that was subsequently performed was not good enough and that this justified not calling in help. However, in circumstances where the literature emphasised that this type of fracture was unforgiving of anything other than the most thoughtful, well planned surgery which needed to be executed "carefully and accurately" and made specific reference to the proposed surgeon needing to decide if he/she had the expertise and support available to treat the fracture properly, what judge would conclude that the surgeon was "reasonably competent" in not having the insight that he might have difficulty with the procedure and then failing to realise post-operatively that he in fact had?
This whole issue was neatly summed up by the Hong Kong Dental Council’s 2012 Inquiry into the treatment provided by a Dr Kan Chung-sing:
"In law, a registered dentist is entitled to perform all levels of dental work, as long as he has the necessary training and competence. It is important, that the dentist is able to recognise where his limit lies, and to recognise the cases that he should refer to other dentists and specialists. An incompetent dentist poses a danger to the public. However, a dentist who is not aware of the limits of his competence is even more of a threat, as he may perform complicated and difficult treatments beyond his competence, in the belief that he has the necessary competence. The injury thus caused may be even more serious".
In the context of public hospitals, the issue of course is very often one of resources. In an ideal world, surgeons of all ages and experiences would be hanging idly around surgical wards waiting for patients to be admitted whose problem perfectly matched their particular skill-set, but this is simply not reality. Many would argue, not unreasonably, that by "adjusting" the standard of care to match the complexity of any given medical procedure, the Courts are disregarding the realities of running a busy surgical unit when the staff do not know from one moment to the next what new case might present. Put simply, the Courts are not interested in this argument. Other than in cases of a real emergency, they will expect the degree of difficulty in dealing with any particular medical problem to be matched by the experience of the doctor, or for the patient to be transferred to another hospital if the necessary expertise is not available in-house.
Doctors and risk managers take heed, or do not be taken by surprise when that Writ lands on your desk.