Covid-19: Exploring medico-legal perceptions amongst orthopaedic surgeons and lawyers

Introduction

Trauma and orthopaedic (T&O) surgery accounts for a significant proportion of NHS emergency admissions and elective procedures. ¹ The pandemic led to disrupted services, cancelled elective operations and refused surgical admissions. ² New guidelines were published from the British Orthopaedic Association (BOA) ³ to advise clinicians on pragmatic treatment options for T&O patients ⁴ during the crisis. The new Coronavirus Act 2020 ⁵ had been enacted to provide indemnity coverage for clinical negligence.

These new guidelines had significantly changed clinicians’ approach to traditional operative managements of conditions such as fractures. Using conservative management risked poorer patient outcomes, a clear dichotomy between the Montgomery ruling ⁶ and current BOA guidelines. Redeployment of T&O staff to unfamiliar territories was a myopic way to confront the Covid-19 pandemic assault in the UK² and worldwide. ⁷ However, this professional unfamiliarity may initiate clinical errors leading to more complaints. British citizens seeking to pursue medical negligence claims against the NHS are advised to do so within three years following the time of incident, ⁸ hence the urgency of this study. The degree of medico-legal risk imposed on T&O clinicians from the public and the British legal system remains unclear.

The aim of the study was to assess the perceptions of lawyers and T&O clinicians regarding the legal robustness of current laws and guidelines in protecting staff. The perceived influence of Covid-19 on future medico-legal implications was also assessed.

Methodology

The survey was designed from the authors’ clinical experience, legal professional advice and emerging recommendations. The wording of questions was adapted to both groups to maintain a homogenous theme.

Focus groups of clinicians, both T&O staff regionally and legal professionals from within the legal department of Walsall Healthcare NHS Trust, had shaped the design of the questionnaire, ensuring relevance to domain questions, clarity of questions and robustness of the questionnaire itself. The questionnaire intended for legal professionals involved consultation from fully registered lawyers and barristers. Interviews and discussions with Walsall Healthcare NHS Trust legal team and members of Irwin Mitchell law firm provided advice on questionnaire formation. No paralegal advice was sought after. The questionnaire was then edited after consultation with clinicians at Walsall Healthcare NHS Trust to develop a near identical survey which was then piloted to clinicians and legal professionals from Walsall Healthcare NHS Trust.

Upon successful completion of questionnaire design, the near-identical online survey was distributed via email and social media through an anonymised shared web link to a national cohort of lawyers and T&O clinicians. Lawyers were identified from three sources; the “Clinical Negligence Accreditation” members list published by The Law Society, direct contact with Irwin Mitchell solicitors – the largest UK law firm specialising in medical negligence – and the database provided by the Association of Personal Injury Lawyers.

Sixteen questions were designed for clinicians and 11 for lawyers. Nine questions were comparable in description for both groups. Level of experience and career stages were also explored. A six-point psychometric Likert scale (0 = negative association, 5 = positive association) captured these perceptions, providing a neutral assessment. ⁹ The survey assessed five major domains (Figure 1) examining the perceived pandemic impact on orthopaedic practice and its resultant medico-legal implications. Domains included: awareness of updated guidance, medico-legal vulnerability of redeployed clinicians, clinician litigation protection, influence over claims and claim success.

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Figure 1.

Questionnaire.

Statistical analysis of the score responses was performed by XLStat. Analysis of lawyer group and clinician groups were undertaken with Mann-Whitney U tests. Association of correlations between groups was undertaken with Spearman’s correlation coefficient.

No identifying details were collected, and consent was implied by completion of survey. Ethical approval was granted by the Walsall Healthcare NHS clinical governance department.

Results

The survey showed responses from surgeons (n = 124) and lawyers (n = 32). T&O staff ranged from varying senior grades; consultant (n = 58), Specialist Registrars (n = 28); Staff grade, Associate Specialist & Speciality (SAS) doctors (n = 33); and junior grades: core surgical trainees (CST) (n = 7).

Guideline awareness differed significantly between lawyers and surgeons (p value <0.001, OR 0.01). 6.3% of lawyers (n = 2) and 86.5% of surgeons (n = 109) understood the existence of the updated BOA guidelines.

Significant disparities of perceived vulnerability of redeployed clinicians (p value = 0.001) were demonstrated between both groups. Clinicians felt less protected (mean = 2.6) and forecasted a rise in claims (mean = 3.4). Concurrently, clinicians felt public perception would have little influence over claim rates (mean = 1.8). In contrast, lawyers were optimistic for clinicians’ protection (mean = 2.5) and lower claim rates (mean = 2.7). Lawyers felt that public perception would have more influence in claim rates (mean = 2.6). Significance was found between lawyers (mean = 0.5) and clinicians (mean = 3.1) when questioned on expectation of complete immunity from litigation reprisal for clinicians (p < 0.0001).

Comparisons between orthopaedic grades showed statistical significance of issues with pandemic training due to redeployment (p = 0.02). Consultants, specialist registrars and SAS doctors felt least prepared for pandemic training (mean = 2.0, mean = 1.2, mean = 1.3) contrasting to CSTs (mean = 2.8). Consultants (mean = 1.8), specialist registrars (mean = 1.5) and SAS doctors (mean = 1.1) felt least comfortable with redeployment when compared to CSTs (mean = 2.9) (p = 0.05). Pandemic training preparedness and comfort with redeployment (Figure 2) (p < 0.0001, R = 0.57) demonstrated a positive correlation. Claim protection and pandemic training preparedness (Figure 3) (p < 0.0001, R = 0.71) showed a positive correlation. Similarly, cross correlations between clinicians’ comfort with redeployment positively correlated with litigation protection (Figure 4) (p < 0.0001, R = 0.52).

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Figure 2.

Scattergram between perceptions of preparedness of non-orthopaedic training and perceived levels of comfort with redeployment to other specialities.

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Figure 3.

Scattergram between preparedness of non-orthopaedic training and perceived levels of protection from litigation.

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Figure 4.

Scattergram between perceived levels of protection and perceived levels of comfort with redeployment to other specialities.

Little difference was demonstrated between lawyers (mean = 3.4) and surgeons (mean = 3.0) on perceived guideline usefulness in prevention of claims; (p = 0.2). Between lawyers (mean = 2.3) and surgeons (mean =2.0), there was little difference (p = 0.4) between favourable influence towards clinical staff in claims. The sense of claim success proved to be insignificant (p = 0.1) with lawyers (mean = 2.2) and surgeons (mean = 2.6) sharing similar views.

Discussion

This study demonstrates that clinicians and lawyers have significant discrepancies in perceptions of claim incidence, medicolegal protection strength for clinicians, complete immunity for clinicians and public influence over claims. Analysis amongst clinicians demonstrated fear of litigation with lack of pandemic preparedness and clinician seniority.

T&O is susceptible to high rates of medical negligence claims worldwide.^10–12 In this study, staff have conveyed their pessimism by having little confidence in the BOA guidelines. Both groups recognised a potential rise in claims due to the Covid-19 pandemic. Our findings demonstrate clinicians’ fears of a rise in successful claims. With the pandemic limiting choice of first-line treatments, patients cannot contemplate all possible options, making it difficult to obtain adequate consent. ⁶

In unfamiliar environments, clinicians felt more medico-legal risk in the event of malpractice. The lack of pandemic training made clinicians feel exposed to delivering poorer quality of care. Reassuringly, new General Medical Council (GMC) guidance acknowledges redeployed doctors are unlikely to face GMC charges in the event of patient harm. ¹³ Social and healthcare regulators have acknowledged such limitations.^14,15

In this study, complete immunity for clinicians was rejected by lawyers. Emergency legislation has been introduced across US states, including New York,^16,17 to protect clinicians from such claims. Those backing complete immunity concur that claims potentiate an emotional and professional burden upon clinicians. Conversely, others felt that immunity proved superfluous as the law currently stands to protect them from unfair judgment.

Impact on surgical training has been an inevitable consequence of the Covid-19 pandemic. ² In this study, SAS clinicians have expressed significant concern with pandemic training when compared to juniors. With fewer opportunities to operate and more exposure to medical conditions, ² these clinicians would feel more unsafe and unfamiliar in treating pandemic-related conditions. SAS clinicians are integral to the T&O staff makeup and comprise a significant portion of the NHS workforce. ¹⁸ Whilst bringing valuable expertise from overseas, redeployment left these experts in limbo, leaving them with the daunting prospect of tackling pandemic-related conditions. CSTs were the most comfortable with redeployment when compared to senior surgeons, especially SAS clinicians. CSTs have recently completed their medical foundation competencies, ¹⁹ thus being flexible in the evolving pandemic landscape.

In this study, a redeployed clinician felt comfortable with perceived litigation protection and with more pandemic training. The army medics model reinforces the idea of personnel’s duties to serve as a soldier alongside their clinical duties. ²⁰ In preparation for the battlefield, British army clinicians can undergo a ten-week “Professional Qualified Officer” course to familiarise themselves with operational duties. ²⁰ Consideration for redeployed doctors and senior T&O staff to undergo similar courses for healthcare crises may be warranted to alleviate clinician anxiety over future litigation.

This survey has several limitations. Survey incompletion amongst lawyers and clinicians was noted. Likert scales ensured simplicity of survey. Moreover, staffing shortages and reasons for responses were not explored. Had the survey included short answer responses, completion rates would suffer. Overall, there were fewer legal professional respondents compared to T&O staff.

Conclusion

In a time of a pandemic crisis, the world looked to clinicians to deliver the best clinical care for the masses. Clinicians shared an anxiety of litigation reprisal based upon updated national guidance. Their livelihoods are centred around providing optimum patient outcomes in ideal settings shaped by national guidance based on evidence-based medicine. Deviance from this, for pragmatic reasons, would be perceived to result in sub-optimal outcomes for patients. Feedback from lawyers in this study reassures T&O clinicians that claims should not rise due to updated BOA guidance.