The Psychological Effects Of Clinical Negligence: First Look At The Records

In this first of a two-part series, Professor Walter Busuttil,
consultant psychiatrist at Expert in Mind, looks at some cases
which document the effects on mental health caused by
physical health clinical negligence.

I have found over the years that it is really important to read the letter of instruction from the solicitors very carefully and to work out and understand exactly what they’re asking of me. If the request is not clear, pick up the phone and discuss with the instructing solicitors.

One will obviously need to know whether the instruction comes from a claimant’s solicitors or defendant’s solicitors or whether you are being jointly instructed.

Usually, the letter of instruction will contain a summary of the case, which is important as a guide for one to understand what is going on.

So, there could be a whole series of events that occurred in relation to a medical clinical negligence case where, for example, a surgical operation went wrong, and the solicitors require your opinion as the appointed medicolegal expert psychiatrist or psychologist as to whether or not a mental illness has occurred as a result of the alleged negligence. Would this mental illness have happened in any case because of the nature of the operation?

Of course, in reflecting carefully about the case, one will need to think about predisposing factors, precipitating factors, and maintaining factors. These are issues of causation from a legal perspective. 

From a predisposition point of view, a past psychiatric history or family history of mental illness could be important, as well as exposure to previous trauma or significant life events or similar events.

As far as maintaining factors are concerned, it is important to bear in mind the resultant long term physical health of the patient post the alleged negligence. Will there be chronic pain, or scarring, or disability ascribed to the negligence which is only present but for the negligence? These factors may be maintaining factors which trigger the mental illness prognostically. One will need to consider what other experts are saying about the physical health prognosis as there will be an impact on the long-term mental health prognosis. One may consider recommending treatment interventions which are coordinated with physical health recovery such as antidepressant medications that treat depression as well as chronic pain.

The solicitors will usually send a bundle of clinical records, including the general practice records and possibly hospital records, as well as other expert medicolegal reports. In addition, they may include a letter of claim and the response letter rebutting the claims from the defence.

In my own clinical practice preparing medicolegal reports, I would normally read and summarise all relevant parts of the documents. I would start with the letter of instruction, and the letters of claim and defence, moving on to the general practice records and hospital records and finishing with the expert medicolegal reports. I would make written summaries of important entries within each document. I would make a note of the date and the page of each entry relevant to the case. I find that this process always gives me a good insight and understanding of what is going on. I usually start chronologically with the general practice records as they give a broad idea of the lifelong clinical history of the individual. I usually start with the consultation Lloyd George handwritten records and then go on to summarise the electronic consultation records. I would also consider the electronic summaries and medication prescribing records, which allow a bird’s eye view of physical and mental illness over many years, as well as medications prescribed to treat and the frequency of these prescribed medications. Following this, I would summarise the letters of correspondence. Then I would read and make handwritten notes of the hospital records, excluding anything already summarised within the General Practice records and anything that was not relevant from a mental health perspective. Lastly, I would read and make notes from the expert medicolegal reports. To keep track of the important entries in all these records, I usually prepare a brief handwritten note of each relevant entry together with the date and page number on the bundle.

Following this, before seeing the patient, I would dictate what will be the second part of my report – the ‘Evidence from the Documentation Provided’ by following the notes I have made and referring to the entry of each note in the bundle. This process I find gives me a second run at the records and allows me to analyse the importance and relevance of each entry.

In this way, before seeing the patient, I would have a very good idea not only of what has happened, but a clear idea of the clinical framework that the index events or event actually fit into. So, for example, if there’s a prior chronic history of depression documented in the clinical records predating the index event or a history of childhood trauma predating the index event, I have a better handle on how relevant and important these potentially predisposing factors are.

In my next instalment I will talk a bit about the actual assessment of the patient and easy ways to go about this.