Introduction

The past two decades have witnessed significant advances in clinical care; alongside this, national standards of care have been implemented. The availability and quality of information to inform care has also increased and various vehicles for sharing information and practice have been improved. To enhance services further, many non-medical health professionals such as gastrointestinal radiographers and gastroenterology nurses have engaged with a wide range of diagnostic and interventional/therapeutic advanced clinical roles. Not surprisingly, the potential to deliver a good standard of healthcare is high. In the past two decades, the rights of patients have also improved significantly; this includes the patient’s ability to: contribute to healthcare policy formation; receive information about their health and care; exercise choice on where and when they receive their care; exercise their right to complain about the standard of care they receive and, associated with this, their ability to initiate a [legal] negligence claim.

Negligence on the part of the healthcare team, or their employer, can result in a legal claim. Such claims are on the increase (Berlin, 1999; Alderson and Hogg, 2003), possibly because of a greater awareness about compensation being sought from a suboptimal outcome – where the fault lies with another, or possibly because there is a greater awareness of the claims process itself – particularly notable on local radio stations through advertising. Some argue that public expectations of healthcare have been raised to an unrealistic level (Butt, 1998) requiring an increasing emphasis to be placed upon educating the public about realistic expectations. This might be worth considering during your contact with patients during the explanatory and consenting phases.

Within this chapter, we shall explore aspects of clinical negligence associated with imaging and therapy of the GI tract. The general principles outlined are likely to apply to most countries; however, it is important that you familiarize yourself with the legal processes in the country in which you practice, because conceptual and procedural differences will exist. We will not consider the detail of the legal claims process; however, if this interests you we would recommend the article by Alderson and Hogg (2003) which explains the process of a legal claim in English law.

Negligence – a definition

Negligence is a legal concept in which there is failure to act with the prudence that a reasonable person would exercise under the same circumstances, resulting in an unintended injury to another party. Negligence is the most common form of Tort, and Tort is a civil wrong committed against a person for which compensation will be sought through a Civil Court.

Where might negligence claims arise in GI imaging and therapy?

A claim can arise whenever a patient in your care is exposed to a risk that has not been explained adequately, minimized appropriately or contingency planned for. If your patient feels aggrieved by their standard of care, they may seek legal advice on what might be done to help them. Important points for you to consider about your clinical practice are:

Table 2.1 offers a number of circumstances where claims might arise.

Table 2.1 Circumstances in which claims could arise

Category of claims

Examples

Inadequate patient care

Not identifying your patient adequately Failure to identify that the examination requested is inappropriate for the related clinical history, (for example) if a barium enema has been requested for a patient with bloody diarrhea Harming your patient because of a basic failure to care for them Causing the death of your patient Not adapting technique in accordance with any pre-existing patient conditions Gaining inadequate consent from your patient Failing to maintain confidentiality

Poor medicines management for the prescription, supply and administration (including x-ray contrast media) Poor radiation protection measures A lack of competence to perform the task Failure to articulate significant known risks about the procedure to your patient Failure to interpret and articulate the result of a diagnostic procedure Inadequate communication of bad news to patients  

On examining the list in Table 2.1, it becomes clear that the points are representative of unreasonable/poor clinical practice. Alternatively, engaging in reasonable clinical practice (the converse of the above) would improve the patient experience and outcome and also minimize the chance of a legal claim. Reasonable clinical practice, therefore, does not need to have a purely litigious basis; its basis would build on reasonable standards of care and management that are expected of highly skilled and educated practitioners.

How does your patient succeed with a (legal) negligence claim?