Legal and Medical Aspects: Intensive Care Units
Complex in nature and designed to attend to patients with serious injuries, life-threatening conditions and intricate needs, intensive care units (ICUs) have become a focus of litigation for medical negligence over recent years. Perhaps unsurprisingly, the sheer number of invasive and, therefore, potentially dangerous interventions and procedures carried out in ICUs will have contributed – at least in part – to this trend.
Additionally, adverse incidents are relatively common in ICU settings due to the elevated probability of mortality and longer average stays than on most other hospital wards. These adverse events in themselves serve to lengthen the stays of affected patients even further. Moreover, on transfer out of ICUs, a large proportion of patients have to deal with long-term effects such as cognitive weakness, muscle atrophy and post-traumatic stress disorder.
Whether the total number of legal cases and compensation claims for negligence in intensive care has increased over the past decade due to an increase in the absolute number of so-called never events is unclear. Alternatively, the upward spiral may owe itself to an increased willingness to initiate formal proceedings, or to changes in public perception. Inarguably, the cost of settling negligence claims has risen in line with inflation, as well as the seriousness of prognoses on discharge.
Burden of Proof
To prove that negligence is present in a case, it is necessary to show that the medical professionals involved breached their duty of care and that, as a result, the patient concerned suffered harm. Thus, claims succeed through establishing fault or apportioning blame to the doctor or hospital.
In civil lawsuits, a balance of probabilities constitutes sufficient proof. Conversely, criminal cases require proof of negligence to be beyond reasonable doubt. In this respect and, especially in courtroom representations, it is an inability to establish causation that most frequent precipitates the failure of medical negligence claims. Nonetheless, if it is possible to demonstrate that the breach of care was a clear cause of the injury or contributed to it, or if the damage was more likely to be due to negligence than to other causes, compensation claims usually succeed.
Used to describe those injuries that arise from medical examinations and the very treatment intended to improve patient health, the term iatrogenic could, arguably, apply to all critical illness. Logically, one might contend that all ICU patients have survived medical treatment for a life-threatening issue, whether an accident, illness or other incident – and, therefore, critical illness is iatrogenic per se. In practice, much depends on the beneficial or adverse consequences of the surgical procedures and other interventions carried out.
On occasions, establishing exactly where typical complications ended and preventable negligence began is a complicated matter. To illustrate the point, let us consider a patient suffering from septic shock, necessitating intensive care. During resuscitation procedures, treatment with intravenous fluids could well worsen hypoxia, which then requires ventilation of the patient’s lungs. However, this support could induce lung injuries or lead to ventilator-associated pneumonia.
In practice, the most frequent type of adverse or another event involves failing to carry out the prescribed treatment correctly. Similarly, investigators have shown that medication errors are more probable through administering the wrong dosage level or omitting a dose than making a mistake at the time of prescribing. In addition, since patients in ICUs often receive prescriptions for multiple drugs, the risk of interaction(s) between the combination of medicines is higher. Notably, geriatric and paediatric patients tend to be the most sensitive.
Breach of Duty
Breach of duty occurs when a healthcare professional does not deliver a reasonably expected level of care. Though not necessarily a breach of duty, a lapse of judgment could constitute negligence if the doctor in charge does not provide a professional standard of care. It is such lapses, rather than a lack of knowledge, that are more prevalent in proven breaches of duty.
To reduce the risk of adverse or never events and breaches of duty, it essential to follow guidelines and protocols where applicable. However, rigid procedures may not always be feasible – or even exist – in every complex scenario experienced in ICUs. To muddy the waters further, hospital administration staff might write procedures to shift blame, rather than to address systematic failings. Nonetheless, because guidelines are usually available for courts to examine, doctors ought to weigh the implications of departing from laid down procedures.
Team-based approaches and proper communication are crucial in reducing incident rates. As well as a capable and experienced leader, teams should include doctors, nurses, physiotherapy staff and other specialists who play an active role in patient care. All members should be able to provide input, state their opinion(s), offer support and work in harmony. In contrast, investigators have found that poor communication is a major cause of problems.
Significantly, when mistakes and adverse events occur, patients have told researchers that they consider an adequate explanation, apologetic tone and evidence of learning from mistakes to be as important as possible financial compensation in resolving cases satisfactorily.
For the above reasons, medical staff should keep comprehensive notes for all patients. As well as significant events, it is imperative to include treatment decisions and clinical findings. That way, it will be less difficult to answer questions and illustrate the diligence of doctors and nursing staff in subsequent enquiries, perhaps years later.
Comparatively, medical negligence claims are more common in the high-risk area of ICUs. Unfortunately, poor outcomes are more likely in this sophisticated setting and resolution is usually more costly than in other areas of medicine. Nevertheless, proper communication and a high standard of care should help to minimise litigation risks. Similarly, adherence to guidelines and maintaining comprehensive and contemporaneous medical notes should reduce the likelihood of any claims. Finally, expert witnesses who understand the NHS along with its protocols and challenges can play a crucial role in defending or bringing intricate medical negligence claims.