Intended for healthcare professionals

Observations Ethics Man

Lessons from the front line

BMJ 2017; 359 doi: (Published 06 October 2017) Cite this as: BMJ 2017;359:j4624

Do rules of professional negligence and duty of candour applies similarly to both medical and legal professions?

Dear Editors

Mr Sokol's premise is that "lawsuits, though miserable affairs, can lead to better, safer practice."

I am uncertain of his practice nature but perhaps he have a choice of who he looks after and who he rejects. Afterall how does he ensure that his beliefs of a better practice is not scuttled by clients who are clearly making vexatious or nefarious claims? Many doctors have no real choice in who they choose to look after upon the first consultation and beyond.

Many lawsuits are based on assumptions of personal negligence rather than systematic limitation or faults. In fact many times the doctor is the sole defendent even though her/his lapse in care is only one of many in a system supposedly full of 'safeguards' designed to prevent poor outcome. In the courts of law which works through an adversarial process, the allocation of "blame" vs "responsibility" is often clouded by the issue of compensation usually monetary. Those individuals or organisations who have little or no indemnity are less likely to be sued where allegations of negligence are involved in healthcare.

The irony of the 2 examples Mr Sokol discussed (involving implants) is that both could have been solved by having the hospital set aside a storeroom with at least 2 sets of the same implants, or a complete range of whatever implant is available to the NHS. That solution obviously is not practical if common sense prevails, but since Dr Sokol's ethical process involved a better, safer practice then this must be done.

Maybe Dr Sokol is barking up the wrong tree if he thinks the surgeons are at fault.

Mind you, I believe that surgeons have a duty to check implants and given open disclosures but what are the responsibilities of nurses, hospital managers, store personnel, company representatives when these things happen?

Unless Dr Sokol believes that the doctors still calls the shots in hospital systems (we never still did even in 2002) then his supposition that safer practices can arise by simply suing doctors is nothing but a flawed assumption.

It is almost like trying to sue barristers or judges for negligence for miscarriage of justice, even when the judicial process in the United Kingdom is not perfect, although I suspect Mr Sokol and his colleagues do not have such worries.

Certainly although malpractice suits against any of the 16000 barristers in UK are made easier since 2000 by the Law Lords in Parliament, few cases have come to light in court so far which means either there are few barristers who are negligent or the process to sue a barrister is still no easier.

Perhaps there is a similar legal duty of candour for barristers when one makes a serious mistake of assuming safer practices occurs when doctors get sued.

Or maybe it is time to call for all universities in the UK (not just Cambridge and Oxford) to have a compulsory entrance interview looking for "insight" in applicants for their undergraduate law courses.

Do to others what you would want them to do to you (Luke 6:31)

Competing interests: No competing interests

23 October 2017
Shyan Goh
Orthopaedic Surgeon
Sydney, Australia