Litigation lawyers used to chase ambulances; soon they may be trawling patient records.
Electronic records can be an uncompromising record of when care departed from clinical guidelines. Once upon a time the Bolam test – acting in accordance with a body of medical opinion – was sufficient to define the required standard of care. But after 1997, the Bolitho case modified this to allow that a body of medical opinion could be challenged as irrational. More recently, clinical guidelines have begun to inform the required standard of care.
Now both the Medical Defence Union (MDU) and the Medical Protection Society (MPS) advise that doctors must be prepared to justify decisions and actions that depart from nationally recognised guidelines.  Alongside this, the General Medical Council regard it as a professional responsibility to be familiar with guidelines. So if a doctor departs from clinical guidelines without recording a reason and their patient suffers a foreseeable adverse outcome as a result, there is a basis for a medical negligence claim.
Do electronic patient records have implications for this? Quite possibly. By retrieving historical records it is relatively easy to identify if a patient who suffered an adverse outcome was previously treated in accordance with guidelines. We can get an idea of the scale of this by looking at an example.
Anticoagulants halve the risk of stroke in atrial fibrillation, and guidelines recommend anticoagulant use in most patients with atrial fibrillation. But in the UK half are untreated. By contrast, 87% are treated in Germany and 92% in Switzerland.  So it is not a question of contraindications. There are about 100,000 strokes a year in the UK, with about 80,000 ischaemic strokes. Data from Sweden – with a similar undertreatment problem – indicates that about 29% of these will have atrial fibrillation. So the UK has roughly 23,000 strokes a year in atrial fibrillation patients, half of whom were not on anticoagulants – 11,500 litigation opportunities. A case would be hard to defend without a documented rationale for withholding treatment.
From the ambulance-chasing perspective this means one in every nine stroke patients represents a business opportunity: certainly worth a letter requesting the records if only the patient will accede. The archive of patient data is easy to search. It is a treasure trove for medical negligence lawyers. It is just surprising it has not already happened.
— Tom Marshall, Deputy Director CLAHRC WM, Prevention and Detection of Diseases
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