Medico Legal Magazine Issue 1

MEDICO LEGAL M A G A Z I N E I SS U E 1

P res en t ed by:

Spons o re d by:

Medical reports you can trust Medical Reports Ltd established since 2000 is an independent specialist of medical reports based in Nuneaton, Warwickshire.

MRL provide a precise, accurate and reliable medical reports service to help professionals settle personal injury claims efficiently and expediently.

With our experienced and hardworking teams and a national network of highly qualified experts, we are confidently able to take care of and deal with any level of case aiming to exceed expectations.

Take the hassle out of personal injury claims, have medical reports your way.

INSTRUCT US SOLICITORS We deliver an exceptional medico-legal service for solicitors.

CLAIMANTS Medical Reports Ltd is a medico-legal agency with over 4000 medical experts on our panel.

MEDICAL EXPERTS Our network and associations with medical experts all over the country are second to none.

MEDCO Medical Reports are a Tier 2 Medical reporting agency (MRO) that is well established at dealing with Medco requirements.

Medical Reports Ltd 2A Henry Street Nuneaton CV11 5SQ t: 02476 348 888 e: general@medicalreportsltd.co.uk www.medicalreportsltd.com

Medical Professional Indemnity

The only source of appropriate indemnity protection for doctors treating professional sportspeople in private practice.

Key Benefits Include: Cover for all private practice including working with professional sportspeople and Clubs

Cover for pre-signing medical screenings and assessments undertaken directly for Clubs

£10m Limit of Indemnity each and every claim & £20m Limit of Indemnity in the Annual Aggregate

10 year fully-insured run-off cover following death, disability and/or retirement included in the premium

For more information or to obtain a quotation: T: 020 8652 9018 E: info@sempris.co.uk W: www.sempris.co.uk SEMPRIS is administered by Health Partners Europe Ltd., Authorised and regulated by the Financial Conduct Authority.

Health Partners are Official Healthcare Advisers to the Premier League and The England & Wales Cricket Board.

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Contents:

Medico-Legal Magazine We are delighted to welcome you to the inaugural issue of the Medico-Legal Magazine, produced by SpecialistInfo and publishing partner Iconic Media Solutions Ltd. This is an opportunity to share information about the fast moving medico-legal industry in the UK, from both a medical and a legal angle.

Inside this first issue you will find interesting articles commissioned from lawyers, doctors and financial specialists covering pertinent medico-legal topics including: Noise Induced Hearing Loss, Orthopaedics, NHS Never Events and VAT Liabilities for Expert Witnesses.

The magazine will be circulated to over 40,000 people in the industry, such as doctors, insurance companies, law firms and medico-legal agencies. It will be published quarterly on the Specialistinfo.com website, where we maintain a database of 90,000 UK doctors and provide medico-legal training courses for expert witnesses.

We welcome feedback from our readers, so please contact us with any suggestions for areas you would like to see covered in future issues, or share your news and experiences with us.

Lisa Cheyne SpecialistInfo Medico-Legal Magazine

Presented by: SpecialistInfo t: +44 (0)1423 727721 e: magazine@specialistinfo.com www.specialistinfo.com

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SpecialistInfo Medico-Legal Services Lisa Cheyne

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What a Difference a Year Makes!

Ben Elsom

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Gait Analysis for Assessment of Lower Limb Function After Injury or Surgery Mr Trevor Prior

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Mend It Like Beckham – Anterior Cruciate Ligament (ACL) Reconstruction Mr David Griffiths

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Contributing to Paradise Lost Jonathan Dingle

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Quantification of Noise Induced Hearing Loss – a Game Changer?

Mr George E. Murty

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The Perils of Prescription Medication Oliver Thorne

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Making Medical Record Collation Cost Effective for Law Firms Jan Thompson

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NHS England Reveals That Over 1,000 Patients Have Suffered ‘‘Never Events’’ in the Last Four Years Suzanne White

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Vascular Surgery – a Medico-Legal Overview Mr Michael Gaunt

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GMC Publish Draft Guidance for Cosmetic Procedures Charlotte Ellis

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VAT Liabilities – an Introduction to the Understanding of the Correct VAT Liability John H Barnes

Medico-Legal Magazine is published by Iconic Media Solutions Ltd. Whilst every care has been taken in compiling this publication, and the statements contained herein are believed to be correct, the publishers do not accept any liability or responsibility for inaccuracies or omissions. Reproduction of any part of this publication is strictly forbidden. We do not endorse, nor is Iconic Media Solutions Ltd, nor SpecialistInfo affiliated with any company or organisation listed within.

Sp o n s o re d by:

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MEDICO-LEGAL SERVICES

By Lisa Cheyne, Medico-Legal Manager, SpecialistInfo

SpecialistInfo Medico-Legal

Fa c u l t y o f E x p e r t W i t n e s s e s

SpecialistInfo Medico-Legal is part of the SpecialistInfo online directory of Consultants and GPs that includes special interests, contact information, and medico-legal and clinical trials experience.

The Faculty of Expert Witnesses (‘the FEW’) builds on the success of the SpecialistInfo Medico-Legal Courses. The purpose of the FEW is to promote a resource of high quality medico-legal expertise, and so Members must: • Have undertaken appropriate medico-legal training and attend refresher training every three years • Agree to adhere to specified standards of good practice covering compliance, availability and service • Sign a FEW Service Level Agreement (‘SLA’) in relation to their stated level of service.

Doctors who have a profile on our database can provide us with their Medico-Legal CV free of charge.

These can then be viewed by subscribing medicolegal agencies, solicitors and insurance companies who are looking for doctors to undertake medicolegal work.

M e d i c o - L e g a l Tr a i n i n g SpecialistInfo have been providing informative and enjoyable Medico-Legal Courses (CPD eligible) for doctors and other medical professionals since 2007.

To date, we have provided medico-legal training to over 2,500 alumni (see their feedback here). Our lead course tutors are practising personal injury and clinical negligence lawyers. We continue to work closely with them to develop our courses and expand our course programme. The Medico-Legal Course range currently includes: Standard (Personal Injury), Clinical Negligence, Advanced, and Court Room Skills courses.

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M e d i a t i o n Tr a i n i n g SpecialistInfo’s Mediation Courses for Doctors provide delegates with the skills required to practise as accredited mediators. There is a substantial practical element during which delegates examine various types of disputes that are likely to occur in the medical profession. For example, disputes within a GP Practice, workplace disputes between medical staff, clinical negligence claims against a Trust or clinical negligence claims in the private sector. The training is not confined to medical disputes, and can also be applied to community and commercial disputes. Details of over 70 accredited Mediators are available to subscribers of SpecialistInfo.

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WHAT A DIFFERENCE A YEAR MAKES!

By Ben Elsom, Managing Director, Medical Reports Ltd One year on from the implementation of MedCo it appears the medical legal sector is yet to come to terms with the changes.

In just one year we have witnessed the goliath’s of the industry fight for their very existence and in some instances, by using unauthorised tactics increase their market share. We have witnessed legal challenges to the Governments whiplash reforms come and go, the introduction of Shell Companies to circumvent the randomisation process and the general gaming of the MedCo system to maintain the status quo.

The Government and MedCo have been slow to react with the outcome of the Governments call for evidence taking over 6 months to be published. This set against the background of launching MedCo from start to finish in under 12 weeks! As we sit here today medical reporting organisations are struggling to effectively plan their future business strategy as the detail of the planned reforms is yet to be published by MedCo and as we all know ‘the devil is in the detail’.

The MedCo system generates revenue in excess of £114 million per annum, so where will the industry be in 12 months’ time?

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It appears that to some companies ‘the end justifies the means’ when it comes to protecting their market share so will any of the planned reforms have any real effect?

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If the government increases the small claims limit what effect will it have on the volume put through MedCo?

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If the government proceeds with its proposals to remove a claimant’s right to claim for a whiplash type injury, will there even be a sustainable MRO model?

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How many companies will still be operating within the sector once the shell companies have been removed?

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Will we see further new entrants to the sector, or businesses exiting?

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Will referral fees be banned, and if so what effect will that have on competition?

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Will there be consolidation within the marketplace through mergers and acquisitions?

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Will there be regulation of the industry?

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Will MedCo be extended to other claim types?

As with all things Medico-Legal there are more questions than answers so to paraphrase Charles Darwin’s ‘Origin of the Species’ “it is not the strongest or the fittest of the species that will survive, but, the species that is most readily able to adapt to change” The industry will face future challenges so companies and experts looking to flourish in a highly competitive medical reporting environment will need to focus on the basics, quality, and clarity, speed of response and customer satisfaction.

By getting the basics right and delivering the service on time, first time, every time, companies will be able to adapt to the future challenges, evolve and innovate and increase their market penetration.

t: +44 (0) 2476 586 881 e: ben.elsom@medicalreportsltd.co.uk w: medicalreportsltd.com

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GAIT ANALYSIS FOR ASSESSMENT OF LOWER LIMB FUNCTION AFTER INJURY OR SURGERY

By Mr Trevor Prior BScHons, FCPod(s), FCPM Trevor Prior is a Consultant Podiatric Surgeon, Senior Clinical lecturer and Director of Premier Podiatry, specialising in foot surgery, sports injuries, biomechanics/gait analysis, orthoses and diabetic foot complications.

One of the challenges for assessing function of the foot and lower limb, especially in medico-legal examinations, is determining normal function. What has become clear within the scientific literature is that each of the joints within the foot demonstrates motion in all three body planes and that the amount and direction of motion shows great variability between individuals1. In addition, walking is not determined by foot structure and function alone, with the role of the hip and pelvis in driving foot function becoming increasingly apparent2. This clearly has implications for assessing function of the foot, ankle, leg, knee, hip and pelvis.

Commonly, visual analysis is used as a simple clinical tool but remains subjective. Video analysis allows a more detailed evaluation and whilst some basic measures can be taken, reliability remains low and it is not possible to assess rotations of the leg, hip, knee and ankle.

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Traditionally, more advanced techniques have been the remit of sophisticated gait laboratories but are now increasingly available in the clinical environment. The use of a force platform, or insoles with force sensors, allows the assessment of the forces underneath the foot and is particularly helpful for assessing the impact of injury and surgery to the lower limb on foot function. For instance, the impact of an arthritic joint, a joint fusion or prosthesis on foot loading can be accurately assessed3. Whilst this does provide objective information relating to the force and pressure beneath the foot, there is still some subjectivity in interpretation. Click this link for an example case of a patient with an arthritic big toe.

The use of reflective markers, which can be tracked by infra-red camera (similar to the technology used for animation in Hollywood), allows extremely accurate and highly reliable assessment of the function of the pelvis, hips, knees and ankle. This allows assessment

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of the effect of injury or surgery to these sites as well as the joints distal and proximal to the joint and the contra-lateral limb.

Newer technology and software development has allowed for quicker analysis of this information and, by comparing an individual’s values statistically to a database of uninjured subjects, greater objectivity regarding function can be determined4.

It has been our experience of combining these assessment techniques that a more global assessment can be made of an individual’s function and the effect of either proximal (i.e. pelvis and hips) on distal (i.e. knee, ankle and foot) function or vice versa.

This information can be extremely helpful in both personal injury and medico-legal cases as it can provide objective information on altered function and load following injury or surgery and help to guide potential treatment. More information can be found here.

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References: 1. Nester CJ, Jarvis HJ, Jones RK, Bowden PD, Liu A, Movement of the human foot in 100 pain free individuals aged 18-45: implications for understanding normal foot function, JFAR 2014, 7:51 2. Preece SJ, Graham-Smith P, Nester CJ, Howard D, Hermens H, Herrington L, Bowker P, The influence of gluteus maximus on transverse plane tibial rotation, Gait & Post 2008, 27:616-621 3. Van Gheluwe BV, Dananberg HJ, Hagman F, Vanstaen K, Effects of hallux limitus on plantar foot pressure and foot kinematics during walking, JAPMA 2006, 96(5):428-436.

4. Ullrich B, Stening J, Pelzer T, Raab J, Long term data of gait characteristics and moment-knee angle relations in female total knee arthroplasty patients, Cl Bio 2015, 30:462-468

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MEND IT LIKE BECKHAM – ANTERIOR CRUCIATE LIGAMENT (ACL) RECONSTRUCTION

By Mr David Griffiths MA (Cantab), MBBS (London), FRCS (England), FRCS (Orth) David Griffiths is a consultant orthopaedic and trauma surgeon with over 20 years experience of preparing medical reports and appearing as an expert witness in court.

The ACL is a band of dense connective tissue which runs diagonally in the knee and contributes significantly to stability, particularly during twisting and turning activities. It is often injured in sports such as football or skiing and, in my experience, is an increasing area for alleged medical negligence.

Many patients describe feeling a “pop” following a non-contact injury with pain and a variable amount of swelling. The first issue is that ACL rupture is seldom recognised in A&E departments and many patients wait a frustratingly long time before being diagnosed.

Ruptured ACLs do not heal and, particularly in young sporting individuals, a reconstruction may be necessary. The patient’s own tissues (hamstring tendons or patella tendon) are used to reconstruct the ligament in most cases although cadaveric tissues

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(allografts) are an option. Synthetic ligaments have largely fallen out of favour. The operation is now almost exclusively performed arthroscopically and frequently as a day case procedure. The graft is pulled through tunnels drilled in the femur and tibia with the aim being to replicate the normal ACL attachments and anatomy. It is successful in restoring knee stability in about 80-90 per cent of cases.

It is fair to say that success is generally more dependent on the skill of the surgeon than the graft used or particular technique employed – again leaving the way open for potential allegations of negligence.

The most frequent indication of failure is recurrent instability and this occurs in about 10 per cent of cases. There are several possible reasons for this but the commonest is technical error and, specifically,

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non-anatomical tunnel placement, usually on the femoral side.

misplaced that they can be ignored and fresh tunnels drilled at the time of revision.

If the femoral tunnel is too far forward then movement of the knee may be affected but the commonest error that I see regularly in failed ACL surgery is placement of the femoral tunnel too vertically (the “high noon” position as it is called in the US). When this occurs the normal obliquity of the ligament is not restored and it does not therefore act as a restraint to rotation.

The ligament reconstructed in this way cannot be expected to restore pivotal stability, which is the primary purpose of the surgery.

The commonest causes of complaint (and litigation) that I see in this field are a failure to diagnose the injury and misplacement of the reconstructed ligament leading to early recurrent instability and the need for revisional surgery.

It is by no means rare to see patients whose ACL reconstructions have failed and find that the femoral tunnel (and also occasionally the tibial one) are so

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I see about 10-15 cases of alleged clinical negligence per year related to ACL reconstruction, most are in young sporting individuals. I have dealt with a case in a professional footballer who had a substandard reconstruction which ended his career. He was successful in his claim.

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CONTRIBUTING TO PARADISE LOST

By Jonathan Dingle, FRSA, MCIArb, Barrister Middle Temple

Bermuda has many things. Elbow beach. The Kite festival. Scuba diving. And the highest numbers of lawyers per head of population on the planet. So perhaps we should not be surprised when a case makes its way across six hours of BA’s finest care to London and then makes medico-legal professionals worldwide take note.

At the end of January 2016 it was the turn of risk analyst Kamal Williams, who “only ever wanted an apology” following his visit to the island’s only hospital. According to the local paper, Bermuda Hospitals Board opted to go to the Island’s highest court of appeal, in London, to avoid paying $58,000 to Kamal Williams, a father-of-two who had to wait more than ten hours for an appendectomy at King Edward VII Memorial Hospital in May 2011.

“A very important reason for me taking this case this far is because the BHB refused to offer any

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type of formal condolences or take responsibility for anything,” he said. “All I wanted was a formally written apology saying ‘We messed up. We’re sorry. Here’s something for your trouble’. The fact that they didn’t say that made me very angry. They underestimated my patience. A lot of people don’t have the time or money to pursue the hospital when they do something wrong. Initially, I was pursuing this to right the wrong they did to me — now, I’m also doing it for the people who don’t have the means to challenge them.”

BHB said the decision to appeal was driven by its medical malpractice insurers, who will meet “all potential costs”, and was based on detailed advice and a belief that the Board was in the right.

Mr Williams was admitted to KEMH’s emergency room on the morning of 30th May 2011 with serious stomach pain. Reportedly screaming in agony by

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11.44am, he didn’t have a scan to check for possible appendicitis until after 5pm and the results of the scan weren’t received from an overseas agency — in Australia — until after 7pm. Surgery was eventually performed three hours later and it emerged that the patient had a ruptured appendix and widespread pus throughout the pelvic region from the ruptured appendix. The surgeon was of the view that the pus had been there for some time. The accumulation of pus led to myocardial ischaemia. During surgery, the patient suffered some form of myocardial ischaemic event and lung complications.

The trial judge found that sepsis from the ruptured appendix caused injury to the patient’s heart and lungs. He found that the scan should have been obtained on an urgent (STAT) basis and that the failure to do so led to the operation being delayed between two hours and twenty minutes and four hours and fifteen minutes. However, he concluded that the patient had failed to prove that the complications which he developed were probably caused by the failure to diagnose and treat him expeditiously.

The Court of Appeal reversed that decision, holding that that proper test of causation was not whether the hospital’s breaches of duty caused the injury to the patient, but whether they contributed materially to the injury.

In Williams v Bermuda Hospitals Board [2016] UKPC 4 the Privy Council (which is the Commonwealth equivalent of the Supreme Court which handed down the decisive judgment in Montgomery on consent last year) considered what is a material cause. The hospital board submitted that material contribution was not sufficient for the purposes of causation. It argued that in the instant case the sepsis attributable to the hospital’s negligence developed after sepsis had already begun to develop.

The Privy Council rejected that approach. It held that where on the balance of probabilities an injury was caused by two or more factors operating cumulatively, it was immaterial whether the cumulative factors operated concurrently or successively.

“All I wanted was a formally written apology ”

Kamal Williams at home in Bermuda

events as not to have made a material contribution to the outcome. However, those were evidential considerations. As a matter of principle, successive events were capable of each making a material contribution to the outcome. In the instant case, the judge found that injury to the heart and lungs was caused by a single known agent, sepsis from the ruptured appendix. The sepsis developed incrementally over a period of approximately six hours, progressively causing myocardial ischaemia.

The sepsis was not divided into separate components causing separate damage to the heart and lungs. Its development and effect on the heart and lungs was a single continuous process. On the trial judge’s findings, that process continued for a minimum period of two hours and twenty minutes longer than it should have done. It was right to infer, on the balance of probabilities, that the hospital’s negligence materially contributed to the process and therefore materially contributed to the injury to the heart and lungs.

It followed that the Hospital’s appeal was dismissed and “but for” causation was found to be the test to be applied. Paradise lost for the insurers, but $58,000 for Mr Kamal and over $1,000,000 in costs expended.

Life’s a beach.

The sequence of events might be highly relevant in considering whether a later event had made a material contribution to the outcome or whether an earlier event had been so overtaken by later Sp o n s o re d by:

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QUANTIFICATION OF NOISE INDUCED HEARING LOSS – A GAME CHANGER?

By Mr George E. Murty M.B.Ch.B, M.D., F.R.C.S., F.R.C.S. (Otolaryngology), F.A.C.S. (USA), Consultant Otolaryngologist/Head and Neck Surgeon George Murty is an ENT Consultant at University Hospitals Leicester and Senior Partner of Forest Medical Services, specialising in noise induced hearing loss.

“Guidelines on the diagnosis of noise-induced hearing loss for medical legal purposes”1 has become the definitive paper on which the diagnosis of noise induced hearing loss (NIHL) in compensation cases is made. However, there has hitherto not been a universally accepted method of quantifying the degree of NIHL once the diagnosis has been made.

The original authors in a new publication “Guidelines for quantification of noise induced hearing loss in a medical legal context”2 describe such a method.

The original diagnosis guidelines require 3 criteria to be satisfied. R1 is the presence of a high frequency sensorineural impairment. R2 is sufficient noise

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exposure. R3 is the presence of an acoustic notch or an audiometric bulge pattern on the puretone audiogram. The diagnosis guidelines are not however definitive as the method of age associated hearing loss (AAHL) calculation is open to several interpretations and the guidelines do not quantify the degree of NIHL. The new quantification guidelines address these issues.

They specify that the age used for estimating the AAHL is the nearest 5 year division, and that the 25th, 50th or 75th percentile is used depending on the best fit to the 1 and 8 kHz anchor points. It also requires the adjusted AAHL to be calculated using

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the “interpolation” rather than the “equally spaced” method. Thus a more uniformed calculation method is achieved.

The quantification of the NIHL is obtained by modifying the anchor points of 1 and 8 kHz to remove any NIHL component, adjusting the AAHL accordingly and subtracting from the measured threshold to produce a NIHL value in decibels. This is known as the “Full method”.

An alternative “Short method” can be applied in which the average bulge over 1, 2 and 3 kHz is modified by 1.32 to produce an NIHL value in decibels. This is, however, only a close approximation to the “full method” value and is particularly inaccurate if there is a deep notch at 4 kHz or the threshold at 3 kHz is worse than at 4 kHz. The advantages of the new quantification guidelines are that it follows on naturally from the calculations used to establish the diagnosis of NIHL and produces an NIHL figure in decibels. Its disadvantages are that it is time consuming and in common with all

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NIHL methods of calculation, still relies on an initial averaged AAHL database.

The new quantification guidelines are “in press” and are already available on line with a printed publication date shortly. They are increasingly being used in original reports for the court and part 35 questions often now request the new calculation. They are yet to be tested in Court, but like their predecessor, the diagnosis guidelines, they are likely to gain widespread acceptance on the basis that it is “the worst possible method apart from all the rest”.

References: 1.Guidelines on the diagnosis of Noise Induced Hearing Loss for medical legal purposes by RRA Coles, ME Lutman and JT Buffin. Clinical Otolaryngology.

Volume 25. (4) pages 264-273 (2000).

2.Guidelines for quantification of noise induced hearing loss in a medical legal contexts by ME Lutman, RRA Coles and JT Buffin. Clinical Otolaryngology.

(2016. In Press).

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THE PERILS OF PRESCRIPTION MEDICATION

By Oliver Thorne

Oliver Thorne is Head of Clinical Negligence at Slee Blackwell Solicitors and specialises in Clinical Negligence claims.

Most of us have been to our GP at some point complaining of pain. It’s not uncommon – back pain or a persistent neck pain following a bad night’s sleep. The purpose of our GP visit is to hopefully find an answer to what is causing the pain and to make it go away. Most GPs will start by prescribing painkillers before undertaking further investigations to identify the cause of the pain. For some, however, the pain can persist and the root cause is not easily identifiable. For those patients, long-term painkillers are prescribed to enable them to function on a daily basis. These patients, however, can be easily forgotten about – they attend routinely to pick up a repeat prescription but are not always questioned on whether the pain is still present. Opiate based painkillers can be extremely addictive and when patients attempt to slowly withdraw their medication, some frightening side effects can ensue. These patients require slow, supervised withdrawal of these painkillers to avoid these side effects.

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Over the years I have dealt with numerous cases involving prescription medications – from gambling addictions as a result of Parkinson’s medication to those who have been given medication to alleviate pain.

Recently I settled a case for a lady who was prescribed the benzodiazepine, clonazepam in the early 90’s for pain in her hip. She had 4 years previously undergone a release of the right fascia lata due to clicking hips.

Her pain returned 4 years later and she was advised by a pain management consultant that she would probably need to take the drug for life as it allowed her to function on a daily basis. Her pain eventually disappeared and she tried to reduce the dose of the medication, but suffered bouts of anxiety and chronic bowel problems. She received very little help from her GP and the NHS in withdrawing from the drug.

In 2003 she found a clinic in Salisbury where she went and was slowly weaned off the drug alongside

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alcoholics and recreational drug users. She suffered from withdrawal side effects including chronic IBS, anxiety, pain, pins and needles, and insomnia.

In 2005, her symptom of anxiety had not improved and she was placed under the care of a psychiatrist.

She asked to be prescribed clonazepam again, as her life seemed easier when she was taking the drug.

As she was no longer experiencing any pain, there was no clinical basis to prescribe the drug and her psychiatrist, understandably, refused on several occasions. She then saw a locum who willingly prescribed the drug noting “…sometimes as doctors we have to accept that it is pointless proposing new medications against the patient’s wishes because in the end it is up to the patient to accept or ignore the advice of a doctor.”

My client soon realised that she should not be taking the drug, and again tried but failed to wean herself off it. The medication was not as effective as it had been

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previously and she craved higher doses. She lied about taking her medication and losing tablets, so her GP would prescribe her more. When he refused, she took over-the-counter medication and began drinking heavily to try and avoid her cravings. She hit rock bottom, lost her job and was essentially cared for by her husband 24/7. Due to receiving very little help from her GP or the NHS she admitted herself to the Priory in 2010, at considerable cost to her family, where she underwent a withdrawal programme. The withdrawal process was successful, however her withdrawal symptoms still persist to date.

Liability was admitted by the Trust, court proceedings were issued and the case settled just before Christmas 2015 for £200,000. The case not only highlights the serious effects of prescription medication but also the divergence between Doctors in prescribing certain medication.

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MAKING MEDICAL RECORD COLLATION COST EFFECTIVE FOR LAW FIRMS

By Jan Thompson, Director, Collaboras Legal The tough economic climate, matched with recent changes in the rules governing the recovery of costs, brings mounting pressure on law firms to reduce overheads and maximize profit costs. With the impending consultation on the introduction of a fixed costs regime for clinical negligence cases, it is a crucial time for firms to review how best to run these cases leanly yet with the thoroughness that they inevitably require.

Reviewing the medical records is one of the most important tasks in a case, as they form the basis of the allegations of liability, and either corroborate or disprove the client’s version of events. A proper consideration of the records is essential in identifying the key issues in the claim at the outset, and thus driving efficiency in the handling of the case.

For firms that do not have a nurse working in-house, or who simply do not have the capacity to deal with their current workload, the advantages of using an outsourced provider are numerous.

Reviewing medical records can be time consuming.

However, by instructing specialists, fee earners can be free to work on other chargeable cases.

Collation companies can: •

Sort, paginate, index and scan the records – useful for medical experts, Counsel and the Court.

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Prepare a chronology of the relevant entries – this can be as detailed or as brief as required, and limited to breach and/or causation issues or to all aspects including condition and prognosis.

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Identify any missing records ensuring that all the necessary documents have been disclosed.

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Prepare a summary of the key issues arising from the chronology and the facts of the case, with comments on the strengths and weaknesses of the claim. Some companies will also identify the correct discipline of expert to be instructed together with relevant questions to ask.

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The combined knowledge and expertise of the larger collation companies, which have a multidisciplinary team of nurses, midwives, lawyers and doctors, ensures that their service is very cost-effective.

Upon receipt of the completed work, the fee earner should be able to ascertain very quickly if their client has a valid claim and in what direction it should be taken.

The fees for this service can be recovered as a disbursement, or as profit costs at the applicable hourly rate at the end of a successful case, thus equating to a zero cost service.

For example, the collation of some medical records is outsourced and takes 15 hours to complete. At a cost of say £50 per hour, this disbursement is £750 (excluding VAT).

If the case is successful this can be charged as profit costs of say £150 per hour or £2,250. In addition, the fee earner could have spent 15 hours on other chargeable work or a further £2,250. The potential total profit is therefore £4,500 less the £750 cost, totaling £3,750 in a successful case, or £1,500 (excluding VAT) in an unsuccessful case.

The key is to choose a provider who can offer a bespoke service, can be flexible to your requirements on a case-by-case basis; and has a multi-disciplinary team with a breadth of experience. This will ensure that the service is of true benefit and cost-effective.

Our team consists of lawyers, doctors, midwives and nurses, and we provide specialist support services to clinical negligence and personal injury departments throughout the UK and overseas.

Medical Records Collation Screening Reports White Label

Provision of Chronology & Analysis Dealing with New Client Enquires

Costs Drafting

Consultancy Services

Instruction of Experts

Applying for Medical Records Legal Research

Our combined knowledge and expertise enables us to offer an exceptional, cost-effective service. The tough economic climate, matched with changes in the rules governing the recovery of costs, brings mounting pressure on firms to reduce overheads. Outsourcing your work to Collaboras will bring flexibility and efficiencies to your department.

We do not solely collate medical records, we are able to offer so much more. Our services continue to grow as we become the leading medico-legal consultancy to offer comprehensive support for all the investigative steps in a clinical negligence claim.

Why Collaboras?

Unlike some medical agencies, who use only medically trained personnel, we are a multi-disciplinary team and are perfectly placed to get to the heart of the relevant issues on liability, and can tackle these from both a medical and legal perspective

Get in touch If you would like to find out more information about any of our services, or to discuss your individual requirements, please contact us.

Collaboras Legal Ltd Suite 5 Bailey Court Green Street Macclesfield Cheshire SK10 1JQ

Email us or Call us on

jan@collaboras.co.uk

01625 838845

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NHS ENGLAND REVEALS THAT OVER 1,000 PATIENTS HAVE SUFFERED ‘‘NEVER EVENTS’’ IN THE LAST FOUR YEARS

By Suzanne White

Suzanne White is an experienced clinical negligence solicitor and Partner at Leigh Day

‘Never events’ are serious, preventable patient safety incidents that should never happen. They include medical incidents such as wrong site surgery; foreign objects being left in patients after surgery; providing wrong implants/prosthetic body parts to patients and wrong route administration of chemotherapy.

Hospital Trusts are required to monitor the occurrence of never events and report on them on an annual basis.

Recent information published by NHS England revealed that more than 1,100 patients have experienced ‘never events’ in the last four years.

From April 2015 to the end of December 2015 there were 254 ‘never events’.

Case study: patient suffered foot injury while being prepared for breast cancer surgery.

Medical negligence solicitor at Leigh Day, Suzanne White, recently settled a claim on behalf of a former nurse who suffered a ‘never event’ which left her with a permanently damaged foot.

The nurse, K, had been diagnosed with breast cancer and was admitted to hospital for a mastectomy and reconstructive surgery. The procedure lasted ten hours.

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When K came round from the operation she felt pain in her left foot and ankle and noticed that the TED stocking on her left leg had been rolled up from her foot to the same level as her ankle. An ID band had been put on her left ankle.

The TED stocking and ID band on her left ankle had acted as a tourniquet during her surgery.

K continued to suffer from pain in her left foot for six months following surgery and was later diagnosed as having suffered from a nerve injury. She suffered from a numb yet burning sensation as well as a feeling of pins and needles in her foot. She was told that she would recover from this.

K’s return to work was delayed, she is now unable to walk as far as she used to, and has abnormal feeling in the sole of her foot.

The NHS has stated that it is committed to preventing such events, some of which can prove to be fatal, happening in the future.

Near misses must be reported and acted upon, and NHS guidance needs to be comprehensive, with provisions put in place to ensure that it is complied with.

MEDICO LEGAL M A G A Z I N E

VASCULAR SURGERY A MEDICO-LEGAL OVERVIEW

By Mr Michael Gaunt MA, MD, FRCS. Consultant Vascular Surgeon, Cambridge The speciality of vascular surgery is concerned with the diagnosis, assessment and treatment of all conditions of the arteries, veins and lymphatics affecting every part of the body apart from the heart (cardiology/cardiac surgery) and the brain (neurology/neurosurgery).

Vascular surgery is a high risk speciality for medicolegal claims primarily because when problems occur within the vascular system they do so quickly and with severe limb and life-threatening complications.

For the purposes of description, it is convenient to divide vascular conditions into arterial, venous and lymphatic.

Arterial Conditions In general, arteries carry blood high in oxygen (except the pulmonary arteries) and nutrients under high pressure to every organ and area of the body.

If the arterial supply is disrupted ischaemia occurs and the affected organ will malfunction or even die.

Disruption can be caused by the arteries blocking off slowly, as in atherosclerosis, or quickly due to thrombosis, embolism or a combination of the two.

Alternatively, arteries can gradually weaken and burst e.g. aneurysms, causing haemorrhage and ischaemia, or be damaged during trauma, medical interventions or accidents.

The aorta is the major artery originating from the heart which runs through the chest and abdomen. All other arteries take their blood supply from the aorta so conditions affecting this large vessel tend to have very serious consequences.

Dissection of the aorta is a condition where a breach occurs in the innermost lining of the aorta allowing high pressure blood to enter into the wall and split the layers of the artery apart. Delayed diagnosis and treatment can result in the dissection extending the full length of the aorta and blocking off important arteries originating from the aorta. Consequences

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of this include spinal cord ischaemia resulting in paraplegia (lower body paralysis) and resulting in the patient being wheelchair bound with loss of bladder and bowel control. Other complications include renal failure requiring dialysis, ischaemic bowel and ischaemic legs which can lead to amputation and a combination of factors ultimately leading to death.

Aortic dissection can occur across the age range due to a variety of causes and can be associated with particularly long term complications. Early diagnosis and aggressive lowering of the blood pressure can avoid these complications but diagnosis can be difficult and can be easily missed.

Abdominal aortic aneurysm (AAA) is another serious condition where the wall of the aorta weakens and dilates to several times its normal size. Eventually the AAA can burst with a mortality rate approaching 90%. In contrast, detected and treated early the elective mortality rate for repair is less than 5%, therefore, failure to diagnose has serious effects on life expectancy and is a common cause of claims.

Atherosclerosis (hardening of the arteries) is a very common disease in western societies as a result of lifestyle, diabetes and smoking and can affect any artery in the body. Atherosclerosis of the coronary arteries causes angina and heart attacks while that of the carotid arteries in the neck and the cerebral arteries is a common cause of strokes. Atherosclerosis affecting the arteries of the legs causes conditions ranging from intermittent claudication to gangrene and whilst the prevalence of smoking is in decline, arterial disease due to obesity, type II Diabetes and old age is on the rise.

Classically, symptoms in the legs progress, as more arteries block off, from pain in the legs when walking (claudication) to pain in the feet at night, to pain in the feet all the time, to non-healing ulcers and gangrene.

Interventions to improve the blood supply range from balloon angioplasty to open up narrowed and blocked

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MEDICO LEGAL M A G A Z I N E

arteries to bypass surgery. Diagnostic difficulties arise because patients can progress directly from claudication to gangrene without passing through the other stages. This can occur in patients who are poorly mobile due to other conditions e.g. arthritis, who never walk enough to experience symptoms of claudication. Alternatively, diabetics patients with peripheral neuropathy may never experience pain in their feet. Therefore, delayed diagnosis can result in amputation and permanent disability.

Alternatively, medical negligence claims can arise from complications or failures of interventions such as angioplasty or surgery.

Vasospastic disorders occur when arteries go into spasm in response to cold. Abnormal vasospasm in response to cold is termed Raynaud’s phenomenon.

Commonly, this affects the fingers and toes but can also affect other extremities including nose and ear-lobes. Typically, one or more fingers turn deathly white on exposure to cold and then turn blue and bright red on rewarming. Primary Raynaud’s disease has no underlying cause and typically starts in early adult life. The symptoms are mild, never progress to gangrene and can usually be controlled by conservative measures. Secondary Raynaud’s syndrome has an underlying cause and often starts in middle age, increases in severity over time and can result in loss of fingers due to gangrene. Severe Raynaud’s occurring for the first time in later life can be a sign of a serious underlying condition such as an autoimmune connective tissue disorder or even cancer. In such cases investigations to exclude underlying causes are required and failure to recognise this can be a source of litigation.

Hand Arm Vibration Syndrome (HAVS) is a secondary cause of Raynaud’s commonly caused by prolonged and excessive exposure to vibratory tools at work.

The condition used to be called vibration white finger until it was recognised that vibration may also cause neuropathic and/or musculoskeletal complications independent of the Raynaud’s. As with all syndromes, diagnosis depends on identifying a combination of positive factors and exclusion of alternative causes.

Severity is graded according to the Stockholm Workshop Scale but there is a wide range of medical opinion in milder cases as to what constitutes the condition.

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A vascular surgeon can provide advice and an opinion on a wide range of arterial conditions, just a few of which have been described here.

In the next issue, the conditions associated with the venuous and lymphatic systems will be explored from a medico-legal perspective.

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MEDICO LEGAL M A G A Z I N E

GMC PUBLISH DRAFT GUIDANCE FOR COSMETIC PROCEDURES

By Charlotte Ellis, Senior Solicitor, Burton Copeland

In 2015 the General Medical Council (‘the GMC’), the regulator for all medical doctors working in the UK, announced the development of new ethical guidance for those doctors who carry out cosmetic procedures.

Following the PIP scandal of 2012 when 40,000 female patients were told they had non-medical grade material breast implants, Sir Bruce Keogh prepared a review of the cosmetic industry in the UK entitled Review of the Regulation of Cosmetic Interventions. This report was dated April 2013 and identified concerns about regulation in this area and a lack of safeguards for patients, particularly for those patients who elect to undergo non-surgical cosmetic procedures such as dermal fillers. This report famously stated that “a person having a non-surgical cosmetic intervention has no more protection and redress than someone buying a ballpoint pen or a toothbrush”.

As a result of this report, the GMC decided to launch a task and finish group followed by a public consultation on the draft new guidance in 2015.

The GMC, anticipate that the new guidance will come into force in June 2016 but it has today published the

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draft guidance. They state that the new guidance builds on the principles already established in their core guidance for doctors, Good Medical Practice.

The new GMC guidance includes the following: • A requirement that doctors advertise and market their services responsibly and that any advertising must be clear, factual, and not use promotional tactics, such as ‘two-for-one’ offers to encourage patients to make ill-considered decisions; •

Doctors will no longer be allowed to offer cosmetic procedures as prizes;

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Doctors must not allow others to misrepresent their services;

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Doctors must give patients time for reflection ensuring that they have the time and information about the risks of surgery in order that they can make a voluntary and informed decision about whether or not to go ahead with a procedure.

Patients should not feel rushed or pressured into the decision;

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Doctors must also seek patient consent for the procedure themselves and will be responsible for discussing the procedure with the patient,

MEDICO LEGAL M A G A Z I N E

providing them with the information and support they need and obtaining consent from them where previously this may have been carried out by a member of staff at the clinic. This responsibility cannot be delegated; •

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Doctors carrying out the procedure will also have to provide continuity of care, ensuring that patients know who they need to contact and how their care will be managed if they experience any complications and that the patient has full details of any medicines or implants; Doctors must support patient safety by making full and accurate records of consultations, using systems to identify and act on any patient safety concerns and contributing to programmes to monitor quality and outcomes, including registers for devices such as breast implants.

In addition to this, the Royal College of Surgeons has published a new set of standards for cosmetic surgeons and is calling on the government to introduce new legislation to ensure that those doctors carrying out these procedures are qualified to do so.

For some, the new GMC guidance is welcome but does it go far enough to protect both doctors and patients?

As GMC solicitors, defending doctors when they face allegations of impairment of fitness to practise, we have seen all types of cases related to cosmetic surgery, from those doctors accused of not being qualified to carry out the procedures to those who have performed cosmetic procedures on patients which has allegedly then resulted in a complaint about the results and/or complications suffered as a result of the procedure. Suffice to say that, historically, this has been a very grey area in terms of the law.

The GMC appear to have recognised this and have sought to make their expectations of doctors clearer with the publication of their new guidance in an effort to stamp out ‘poor practice’.

However, billions of pounds is spent by the general public every year on cosmetic surgery, with over one million pounds being spent on botox alone. This is a booming industry but patient groups are now questioning whether self regulation in the form of new GMC ethical guidance is sufficient as they insist that

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the new guidance is just that, ethical guidance, and that the changes set out in the new GMC guidance should be implemented in law.

The advice being given to doctors practising in this area is that they should be honest with themselves and with patients as to their own competencies; the suggestion being that many doctors performing cosmetic procedures are not qualified to do so.

The advice being given to patients considering a cosmetic procedure is that they carry out due diligence when choosing their doctor, that they ask questions of their doctor’s competencies and that they are not embarrassed to do so.

As doctors who are either employed by such a clinic or who own and run such clinics, you need to ensure that the new GMC guidance is followed as failure to do so could result in a Medical Practitioner’s Tribunal Service (“MPTS”) Fitness to Practise Panel hearing where allegations of impairment of fitness to practise are considered, which, if found proved, could result in erasure from the medical register.

It would appear that the GMC has taken some time in the preparation of their new guidance. But what does this mean for doctors who have already been practising in this area? In recent times, six doctors have been erased from the medical register in relation to allegations concerning the carrying out of cosmetic procedures and many others have faced fitness to practise investigations, some of which resulted in a lesser sanction than erasure from the medical register.

No doubt there are very many doctors whose fitness to practise is yet to be investigated for procedures carried out prior to the publication of the new GMC guidance and more doctors will be investigated once the new guidance comes into force in June 2016.

For further information on the topic discussed in this article, please see the following links: http://www.bbc.co.uk/news/health-36013627 http://www.gmc-uk.org/news/29042.asp

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VAT LIABILITIES – AN INTRODUCTION TO THE UNDERSTANDING OF THE CORRECT VAT LIABILITY

By John H Barnes, AIIT, CTA, Director, Dispensing VAT Advice Ltd

As a result of the judgement of the European Court of Justice in the case brought by Dr D’Ambrumenil in November 2003, HMRC had to change the VAT liabilities of various “non-therapeutic” services supplied by doctors with effect from 1st May 2007.

The court had ruled that the exemption from VAT for supplies by medical practitioners could only apply to services where the principal purpose was to protect, maintain or restore the health of the individual.

Since 2007, the medical VAT exemption no longer applies to certain “non-therapeutic” reports, whose principal purpose is to enable a third party to make a decision, for example in respect of claims for compensation, benefits, or expert witness reports for the court (even if the case concerns the well-being of an individual), because the principal purpose of the report is to enable the court to take a decision.

Such services are subject to VAT and if a medical practitioner has VATable income in excess of £83,000 they will need to become registered for VAT and charge VAT on such supplies.

Other reports that have become subject to VAT

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since 2007 include benefits agency reports, preemployment medicals, and certificates concerning the fitness of a person to take up a particular profession or sporting activity, or to qualify for an HGV or flying licence, or a shotgun licence.

However where a report is provided to an employer concerning an employee’s fitness to work (sick note) or their fitness to carry out certain duties, this is exempt from VAT as its primary purpose is to protect, maintain or restore the health of the employee.

Some reports, whilst not exempt under the medical exemption, are still exempt under other parts of the VAT legislation, and these include reports to insurance companies in connection with the setting up of insurance policies or the handling of an insurance claim. Similarly, exemption is applicable to cremation certificates and education and training supplied by a self-employed doctor.

This is a very brief introduction to a very complex area of VAT liability and a more detailed article is planned for a later edition.

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