Medicolegal liability in intensive care

27 Feb 2020

The intensive care unit (ICU) is a complex environment and the patients being treated in it often have complicated needs that require invasive and potentially dangerous interventions. Therefore, it is not perhaps surprising that adverse events are fairly common in this setting and the consequences of these can be potentially serious for the patient (1–3). As well as an increase in mortality, an adverse event may result in a significantly longer stay in the ICU or in a general ward (3) and the patient may be left with long-standing health issues, such as muscle weakness, cognitive disorders and post-traumatic stress disorder (1). In recent years, litigation for medical negligence in the ICU setting has increased (1,2,4), although it is unclear whether this is due to a rise in adverse events in real terms or because of changes in public perception and willingness to instigate legal proceedings (1). The cost of settling these claims has also risen (2,4), which is not altogether surprising, given that the majority are related to a fatal or severe outcome (2).

In order to prove that negligence has occurred, it must be shown that the doctor owed a duty of care to the patient, this duty of care was breached and due to this breach, the patient suffered harm (4,5). Thus, a successful claim is dependent on establishing fault on the part of the doctor or hospital.  The level of proof varies between civil and criminal cases, with the balance of probabilities being sufficient in a civil lawsuit. However, in a criminal case, negligence must be proved beyond reasonable doubt. The most common reason for the failure of a claim for medical negligence is an inability to establish causation, as there are often several possible explanations for the outcome. Conversely, if it can be shown that the breach materially contributed to the damage, or that it is more likely that the damage was due to negligence than to any other cause, a claim will often succeed (4).

Iatrogenic injuries, which are those caused by medical examination or treatment, are common in intensive care medicine. The term is often used to denote medical errors but it has been argued that critical illness is itself inherently iatrogenic, as it only occurs in patients who have survived medical intervention for a life-threatening issue (1,6). The subsequent outcome for the patient is often determined by the consequences, whether beneficial or adverse, of the therapeutic interventions used (6). For example, in a patient with septic shock, the intravenous fluid used in resuscitation may increase any existing hypoxia which then requires ventilation. However, this may cause ventilator-induced lung injury and ventilator-associated pneumonia. In this type of situation, establishing cause and effect is not easy and it can be very difficult to determine where acceptable complications end and preventable negligence begins (1).

The most common type of adverse event is a failure to carry out the intended treatment correctly (7). This includes medication errors, such as giving the wrong dose or omitting a dose entirely. Most of these errors happen during the administration of the medication rather than during the prescribing process (8). Patients in ICUs are also at greater risk of drug-drug interactions, due to the multiple interventions needed to treat the serious conditions they are likely to be suffering from. These are of particular concern given the high number of geriatric and paediatric cases, who tend to be most sensitive to such interactions, typically found in an ICU (9).  The majority of errors appear to be slips or lapses in judgement rather than rule-based or knowledge-based mistakes (7). However, it is also important to remember that not all errors of judgement automatically amount to a breach of duty. They are only considered to be so where the doctor has not acted with a level of care that would be expected from a reasonably competent professional. In this respect, support from eminent professionals for the decisions made during treatment may assist in defending a claim for breach of duty (4).

There are several steps that can be taken to try and reduce the risk of adverse events.  Adherence to established practice guidelines is recommended and can help to minimise the risk of adverse events occurring (1,4). However, while hospital administrators may be keen to produce guidelines and protocols for ICU staff to follow, they are not always necessarily helpful in preventing adverse events. Instead, they may shift the blame onto the guideline author or the individual who failed to comply, while more systematic failings are ignored. Furthermore, it is not possible to produce a guideline for each of the many complex scenarios encountered on a daily basis in the average ICU (1). As it is likely that practice guidelines will be available to the court, a doctor must carefully consider the implications and justifications for any deviation from accepted practice in the event that a patient suffers harm (4).

One key factor in the prevention of adverse events is the provision of intensive care management that is team-based. As well as an intensivist to lead the team, other members will include the nurses, doctors, physiotherapists and other specialists who contribute to patient care. There should be an open and effective communication system between all members of the team, so that each individual can provide input and opinion, as well as support for each other (1). Poor communication has been identified as an important contributing factor in adverse events (10). Importantly, a harmonious team prevents conflicting messages about progress and outcome from being relayed to the patient and their family (1).  Furthermore, it has been shown that full disclosure of mistakes and adverse events in a timely manner actually reduces the risk of later litigation (5). Many patients are not just seeking financial compensation, but an explanation, apology and evidence of learning from mistakes made are equally important outcomes (4).  

As part of this communication, it is essential that comprehensive notes are kept for every patient (1,4,5). It is important that these record not only the clinical findings and events but the reasons behind the treatment decisions that were made (1). These notes may become crucial in defending a complaint of medical negligence, as it is not only the facts of a case, but the ability to prove them, that determines the outcome. If there is any dispute over the treatment given or the advice provided about potential adverse effects, the records will demonstrate how diligently the doctor fulfilled his or her duty of care. Furthermore, as many cases of medical negligence can take several years to resolve, contemporaneous notes will be crucial to the successful defence of a case (4).

The ICU is a high-risk area, where claims for medical negligence appear to be relatively common. As these claims are more likely to arise from a poor outcome than in other areas of medicine, they are also more costly to settle. While good care and communication can help to reduce the risks of litigation ever arising, adherence to guidelines and comprehensive note-taking can significantly reduce the likelihood of a claim succeeding. An expert witness working at the cutting edge on a daily basis in the NHS who has a deep understanding of the protocols and challenges facing ICU clinicians will make a significant difference when bringing or defending a complex medical negligence claim.

About Dr Martin Stotz

Dr Martin Stotz is an expert witness specialising in Intensive care medicine and Anaesthesia.  If you have a clinical negligence claim acting either for the claimant or the defendant and would like advice please don’t hesitate to call Medicolegal Partners on 020 7118 0650.

References

1.        Michell W. Malpractice in the intensive care unit [Editorial]. South African J Crit Care. 2011;27(1):2–4. 

2.        Pascall E, Trehane S-J, Georgiou A, Cook TM. Litigation associated with intensive care unit treatment in England: an analysis of NHSLA data 1995–2012. BJA Br J Anaesth. 2015 Sep 14;115(4):601–7. 

3.        Ahmed AH, Giri J, Kashyap R, Singh B, Dong Y, Kilickaya O, et al. Outcome of adverse events and medical errors in the intensive care unit: a systematic review and meta-analysis. Am J Med Qual. 2015;30(1):23–30. 

4.        Bryden D, Storey I. Duty of care and medical negligence. BJA Educ. 2011 Jun 19;11(4):124–7. 

5.        Sachdeva R. Pediatric critical care and the law: Medical malpractice. In: Wheeler DS, Wong HR, Shanley TP, editors. Pediatric critical care medicine Volume 1: Care of the critically ill or injured child. Springer-Verlag; 2014. p. 11–5. 

6.        Marshall JC. Critical illness is an iatrogenic disorder. Crit Care Med. 2010 Oct;38(10 Suppl):S582-9. 

7.        Rothschild JM, Landrigan CP, Cronin JW, Kaushal R, Lockley SW, Burdick E, et al. The Critical Care Safety Study: The incidence and nature of adverse events and serious medical errors in intensive care. Crit Care Med. 2005 Aug;33(8):1694–700. 

8.        Wahr JA, Shore AD, Harris LH, Rogers P, Panesar S, Matthew L, et al. Comparison of intensive care unit medication errors reported to the United States’ MedMarx and the United Kingdom’s National Reporting and Learning System: a cross-sectional study. Am J Med Qual. 2014;29(1):61–9. 

9.        Hasnain H, Ali H, Zafar F, Sial AA, Alam S, Beg AE, et al. Incidence of drug interactions in intensive care units in tertiary care settings: Classification, facts and measures. Pak J Pharm Sci. 2018 Mar;31(2(Suppl.)):669–75.  

10.      Reader TW, Flin R, Cuthbertson BH. Communication skills and error in the intensive care unit. Curr Opin Crit Care. 2007 Dec;13(6):732–6.