Electronic patient records could change the culture of medical litigation

The widespread adoption of electronic patient records in health care may have significant consequences for medical litigation in the UK, according to a paper published today in the British Journal of General Practice.

The paper suggests that the ease of accessing records could lead to people hunting for evidence of medical negligence – and has potential to spark a culture of ‘electronic ambulance chasing’.

Professor Tom Marshall, from the University of Birmingham, explained, “Daytime television already advertises for potential litigants for those who suffered accident or injuries at work, it may not be long before we see adverts aimed at patients recovering from strokes, cardiovascular disease or cancers.”

Patients or lawyers requesting electronic patient records is nothing new, and is commonly used as part of the litigation process. However, Professor Marshall argues that it is now likely to affect the likelihood that litigation will be initiated in the first place.

To demonstrate medical negligence, a claimant must show that the doctor failed to meet the required standard of care. Electronic records must be disclosed to claimants on request, and they include enough information to show whether the doctor followed the guidelines by investigating symptoms or offering treatment.

The paper argues that guidelines, like those written by NICE, are increasingly seen as the required standard of care which doctors must meet. If a patient suffered an adverse outcome because a doctor had ignored or overlooked the guideline, then it could be considered as negligence.

Professor Marshall said, “To put it bluntly, if a doctor departs from the clinical guidelines, fails to record a rationale for doing so and their patient suffers a foreseeable adverse outcome as a result, this could be the basis for a medical negligence claim”

It is widely recognised that patients who suffer strokes often had missed opportunities for prevention. They might display high blood pressure that was measured but not treated, or an irregular pulse (atrial fibrillation) which should mean they were prescribed blood thinners (anticoagulants).

According to Public Health England (link), there were 68,536 hospital admissions for stroke during 2011-12. 28.8% of these had a secondary diagnosis of atrial fibrillation. NICE guidelines recommend that atrial fibrillation patients at high risk of stroke are prescribed anticoagulants, which halves their risk of stroke.

Using electronic patient records, previous research found that 84.5% of atrial fibrillation patients meet these criteria, but only 50.7% were given anticoagulants.

In real terms, that means that about 12.3% of first strokes occur in patients with atrial fibrillation, who are eligible for anticoagulants but not receiving them.

From the perspective of a medical negligence lawyer, this means that you’d only need to scan eight records of stroke cases to find one possible negligence claim. Using the 2011-12 numbers, that would amount to 8,436 cases per year. 

Similarly, many patients with bowel cancer were known to have anaemia long before they were referred for investigation.

Lawyers could speculatively seek permission from anyone who suffered a stroke or heart or anyone whose cancer was diagnosed late to look for evidence of negligence by comparing the record against guidelines.

“Doctors who step away from the guidelines need to record their reasons for doing so,” Professor Marshall added, “Electronic records mean that their omissions can easily be found out and they’ll be under more scrutiny than ever before.”

ENDS

Notes to editors

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  • For more information on the Public Health England statistics, visit their key fact sheets with information and data about cardiovascular risk factors and disease areas.
  • For more information on the National Institute for Health and Care Excellence guidelines on the management of Atrial fibrillation, visit the NICE guidlelines.
  • The research into electronic records and strokes was published by Holt TA, Hunter TD, Gunnarsson C, et al. ‘Risk of stroke and oral anticoagulant use in atrial fibrillation: a cross-sectional survey.’ Br J Gen Pract 2012; DOI: 10.3399/bjgp12X656856