OPTOMETRY, OPHTHALOMOLOGY & THE LAW OF NEGLIGENCE
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1 OPTOMETRY, OPHTHALOMOLOGY & THE LAW OF NEGLIGENCE Janine Collier, Head of Clinical Negligence and Personal Injury, Tees Law
2 Overview OVERVIEW Medical Negligence Criminal negligence Case studies Practical tips Questions
3 IMPORTANT Overview OR NOT?
4 MEDICAL NEGLIGENCE: Overview MOTIVATORS I wanted to understand what had happened 28% I wanted to prevent something that had gone wrong from going wrong again 23% I wanted to prove that I was right 21% I was motivated by the sense of injustice 21% I wanted to get the compensation 18% I wanted to change the behaviour of a person 14% I wanted to obtain recognition of a mistake / receive an apology 10%
5 MEDICAL NEGLIGENCE: Overview WHAT IS IT? A civil tortious claim Brought by the injured party (the Claimant) Against the healthcare provider (the Defendant) Heard by a Judge
6 MEDICAL NEGLIGENCE: THE THREE PART TEST Overview 1. Is there a duty of care to the patient? 2. Has the standard of care provided fallen below the standard normally expected of a practitioner in that field at the time (breach of duty)? 3. Has the patient suffered harm and, is that harm a direct consequence of the breach of duty (causation)?
7 MEDICAL Overview NEGLIGENCE: PROCESS & PROCEDURE Take Witness Statement from Client Obtain and consider records Identify and instruct independent experts Letter of Notification Letter of Claim Letter of Response Issue and serve Court Proceedings Defence Disclosure of documents Mutual Exchange of Factual Witness Evidence Mutual Exchange of Expert Witness Evidence Service of Schedule of Loss and supporting documents Experts Meetings Mediation / Settlement Meeting / ADR Trial
8 MEDICAL Overview NEGLIGENCE: The most common scenarios Failure to take / heed / (record) a proper history Failure to properly examine Failure to properly investigate Failure to heed test results Failure to consider differential diagnoses Incorrect diagnosis Failure to provide correct treatment Failure to refer for further investigation / opinion Surgical mistakes, e.g. wrong site surgery
9 MEDICAL NEGLIGENCE: Overview CASE STUDY A The Facts 4 visits to Specsavers in 11 days Each time I went, they kept saying it was fine, but I couldn t see out of 50% of my eye.in the end, it was my GP who referred me immediately to the Eye Clinic. C had suffered a detached retina C now suffers from permanent distorted and reduced vision in her left eye. It s a challenge all the time. I never have a balanced focus and this can make some everyday tasks more difficult, at home and at work.
10 Overview MEDICAL NEGLIGENCE: CASE STUDY A Optician s response
11 MEDICAL NEGLIGENCE: Overview CASE STUDY A What C did next and why. Complaint to General Optical Council For me it was never about the money, I trusted the optician as a professional but he didn t do his job He was negligent and I felt he should face up to what he had done. Specsavers couldn t just ignore what had happened to me as a result of their employee s incompetence They needed to face up to the impact of what they did Commenced a medical negligence claim
12 MEDICAL NEGLIGENCE: Overview CASE STUDY A The outcome General Optical Council held a hearing and produced a damning report into what happened C recovered compensation to compensate for past financial losses and to help with his future needs For me, the best thing about the process was Specsavers admitted they were in the wrong If they had said at the beginning that they were sorry and would look into it, I would not have started a claim for compensation. It was the fact when I went back after I had been diagnosed and went to hospital, they were awful to me and said they did everything right and denied any responsibility.
13 MEDICAL NEGLIGENCE: Overview CASE STUDY B The facts: First visit to Optician Symptoms: slightly blurred vision L side epiphoria Investigations: Full clinical examination - no strabismus and no anisometropia; IOP normal refraction examination R6/5; L6/7.5. No prescription required visual field testing - revealed a left superior temporal visual field defect, right eye normal Diagnosis: lazy left eye but C doesn t think so No reference on Record Sheet of Visual Field results or that these were discussed with C. Action: Complete GOS18 for referral to Ophthalmologist LE has been watery and blurred intermittently for 2wks since flu. Left acuity is reduced slightly, possibly very mild amblyopia but difficult to say as 1 st eye test. No epiphoria present but as patient feels concerned please refer for ophthalmological opinion Results of visual field tests attached to GOS18
14 Overview MEDICAL NEGLIGENCE: CASE STUDY B The allegations
15 MEDICAL NEGLIGENCE: Overview CASE STUDY B The facts : Ophthalmology Investigations: Clinical examination - normal refraction examination R6/4; L6/6. No prescription required No visual field testing Diagnosis: impending presbyopia Action: discharge
16 Overview MEDICAL NEGLIGENCE: CASE STUDY B The Ophthalmology allegations
17 MEDICAL NEGLIGENCE: Overview CASE STUDY B The facts: Second visit to Optician Symptoms: blurred vision L side Investigations: clinical examination refraction examination - significant reduction (6/18 with and without correction and no improvement with pinhole) in left distance and near visual acuity and substantial change in required reading correction since the examination on 29 th March 2005 visual field testing significant superior temporal field defect in the right eye with some loss also in the inferior quadrant Diagnosis: lazy left eye Action: None
18 Overview MEDICAL NEGLIGENCE: CASE STUDY B The allegations
19 MEDICAL NEGLIGENCE: Overview CASE STUDY B What happened next? 21 November 2010: TIA CT diagnosed a massive pituitary adenoma Following surgery, C suffered a significant stroke C suffered severe visual, neurological and endocrine injuries
20 CRIMINAL NEGLIGENCE: Overview WHAT IS IT? A criminal case Where negligence occurs as a result of gross carelessness / extreme recklessness Burden of proof beyond all reasonable doubt Decided by a Jury May result in a custodial prison sentence
21 CRIMINAL NEGLIGENCE: Overview A CASE STUDY
22 CRIMINAL Overview NEGLIGENCE: The Williams Report June 2018 Key findings: the legal test for the offence set at an appropriately high level. anxiety that the test was not applied consistently. Key recommendations: develop an agreed understanding of gross negligence manslaughter that reflects the most recent case law improve assurance and consistency in the use of expert witnesses and improve local investigations into unexpected deaths in healthcare.
23 PRACTICE POINTS Overview Take a full and detailed history from the patient. And document it Perform a full clinical examination.. And document it! Consider what tests / investigations are needed.. And document it! Ensure test results are reviewed accurately and against the correct criteria.. And document it! Always consider the possibility of a serious diagnosis. And document the differential diagnoses Always give follow up advice.. And document it!
24 PRACTICE POINTS: GOVERNANCE Overview Ensure clinicians have proper training and support. Are robust processes and pathways in place? Ensure policies and procedures are up to date together with any General Optical Council & GMC guidance Have a system for routine monitoring and review of medical practices Have an effective complaints handling policy, ensuring complaints are properly investigated and changes made to prevent repetition of mistakes and remember, sometimes all the injured party wants is an apology or explanation, and to know that the same thing won t happen to somebody else.
25 HOMEWORK : READING Overview m/uploads/attachment_data/file/717946/williams_report.pdf
26
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