Hugh Koch, Clinical Psychologist and Visiting Professor in Law and Psychology to Birmingham City University (BCU), Emma Solomon, Eleanor Sutton, both Clinical Psychologists with Hugh Koch Associates, and Jill Molloy, lecturer in Law (BCU).
Clinical negligence claims arising out of a misdiagnosis or incorrect diagnosis, incorrect treatment or poor patient care continue and appear on the rise. The insurance industry bears the brunt of the significant pay outs, with cancer by far the most common reason, accounting for 53% of claims (Webb, 2018) including breast, lung, bowel and rectal cancers. It has been reported in the media that delays in diagnosis are more likely to occur if you are poorer, reflecting issues of differential access to care and capacity to recognise symptoms of concern and attend their GP. Delays are also more prevalent in certain geographical areas, reflecting socio-economic issues.
The role played by the media about the possibilities of litigation mean that people are far more aware of their rights and opportunities for redress when there is an ‘object’, person or persons to blame.
This social and health awareness relates to both physical health implications, obviously, but also the psychological injuries, direct or indirect, and also the patient care and service implications of a medical incident. Added to these consequences, the actual bringing of a claim for clinical negligence is, in itself, a very stressful circumstance. As such, as Webb clearly and succinctly concluded, these claims, whether for claimant or defendant are about much more than a strict understanding of Bolam v Friend Hospital Management Committee (1957) 2 ALL ER 118, or the strict letter of the law.
This article will focus on the steps taken to assess the psychological injuries incurred when a clinical negligent act or episode occurs. We clearly delineate how the decision-making process for psychological diagnosis occurs.
Reviewing the medical records and witness evidence
As in all personal injury and clinical negligence cases, it is crucial to investigate the presence or absence of contemporaneous GP (or hospital) attendance as illustrated, usually reliably, in the computerised GP records. There should be careful examination of the number of visits reporting material symptoms, both physical and psychological, the time frame between visits, and timing of ongoing referrals. It is essential to prepare a medical chronology and detailed examination of these records to ensure the expert reviewing them has a complete and easily analysable set of records. This saves significant time and effort at a later stage reducing the likelihood of accidentally missed attendances.
It is crucial to obtain a detailed witness statement at the earliest stage, preferably by face-to-face interview. This ensures a comprehensive and reliable account of what occurred is recorded. It enables the lawyer to more efficiently instruct an expert who can be provided with a copy of these self-report statements saving time. This is essential for the lawyer and Court in its own right and much more efficient when instructing an expert, who can be provided with this self-report statement, saving time and ensuring a comprehensive and reliable account of what occurred.
Psychological assessment and the issues
At any stage in a clinical negligence claim, it may become evident that there are psychological issues which need to be assessed (Koch, 2018). These may be inextricably linked to the medical negligence itself e.g. cosmetic social anxiety following implant removal. A specific example, the psychological turmoil of breast implant removal and reduction was discussed by the first author and colleagues in 2012 in relation to vulnerability factors, and the negative consequences of post-implant removal surgery (Koch et al 2012).
Psychological assessments will include careful investigation of many issues relating to the claimant’s past, current and future emotional health including:
• History of prior personal injury and/or clinical negligence claims.
• Level of symptomatology (physical and psychological) just prior to the clinical negligence event and its likely course, irrespective of any negligence.
• History of pre-incident psychological symptomology and its ‘But For’ implications.
• Relevance of post-index incident embitterment.
• Validation of patient self-report via GP, hospital and/or occupational records.
• Predictable relevance of litigation closure on resolution of psychological distress.
When considering the psychological injuries resulting from clinical negligence incidents, it is important to consider the issues below which relate to psycho logical causation, diagnosis and prognosis:
Causation & attribution
- Reason for original intervention/procedure
- Satisfaction with associated effects
- Effect of previous psychological symptoms/disorder (e.g. body dysmorphia, low self-esteem etc.)
- Personality factors such as resilience/non-resilience, history of depression and/or anxiety
Diagnosis & symptom definition
Range of diagnostic opinion will include depression, PTSD, generalised or social anxiety disorder, pain dis orders and psychosexual disorder.
- Social anxiety post-surgery
- Response from surgeon
- Stress of process and procedure
- Satisfaction with outcome, removal of, further surgery
- Effect of anger with whole circumstance
Prognosis & treatment
- Response/support from partner (if any)
- Need for psychological treatment
- Need for follow up
Decision making in psychological diagnosis following a clinical negligence incident will involve ascertaining what, if any, psychological disorder (using DSM V or ICD-10 classifications) is appropriate and how or what to extent it can be argued to be due partly or wholly to the negligence event(s). :
Stress of bringing a clinical negligence claim
The reason claimants start the legal process are complex, but according to Malsher (2018), there is a relationship between the response of the health provider to the adverse events and the litigation. Many people who investigate the possibility of the claim have had no proper investigation of events, or explanations of outcome.
It is widely acknowledged that an individual bringing a claim for a clinical negligence-related incident(s) will find the whole process very stressful. Especially so, as the legal process requires the claimant to describe and discuss on several separate occasions, the incident and surrounding events. Alongside the stress and distress this causes, some individuals will feel frustrated and angry about the original circumstance plus the above stressful litigation process. This embitterment has been well documented (Koch et al 2017).
It is important that in any clinical negligence claim, the psychological injuries that may have occurred are carefully assessed. Irrespective of the negligent behaviour involved, experts, both psychological and psychiatric, are routinely instructed to assess the level of distress and anxiety, and disruption which are sequelae of the physical symptoms occurring in these adverse medical incidents.
Webb B. (2018) A practical guide to claims arising from delay in diagnosing cancer. LBP publishing. Somerset.
Koch HCH (2018) From Therapist’s Chair to Court Room: Understanding Tort Law Psychology. LCB Publishing
Koch HCH, Beesley H, Formby C and Fraser F (2017). Civil claimant embitterment: five case studies exploring clinical presentation and management. Medical Care Reports. 3, 3:29, 1-5
Koch HCH and Associates (2012) More than skin deep. New Law Journal 27/1/12
Furst MB, Frances A, Pinccus HA (1995) DSM-IV Handbook of Differential Diagnoses. APA Press. Washington
Masher A (2018) The complex reasons why a claimant takes legal action. The Personal Injury Brief Update Law Journal 15/2/19
Further details on this topic can be obtained from
Professor Hugh Koch
Other relevant cases worthy of inspection are: -
Shaw V Leigh Day (2017) EWHC825 (QB) YAH V. Medway NHS Foundation Trust (2018) EWHC2964 (QB)