Clarity in consultations

In clinical negligence claims the argument of “If it isn’t written down, it didn’t happen” is well known, but what about when a clinician has written down their instructions but their phrasing is interpreted in a different way to what they intended? The GMC Good Medical Practice 2024 advises simply that doctors “must make sure that formal records of your work (including patients’ records) are clear, accurate, contemporaneous and legible”. However each person’s background and experience influences their written and oral communication. The importance of using precise language is clear and obvious, but what is evident to one person is sometimes not so to another. 

Bevan Brittan has successfully defended a claim arising from an alleged failure by a Consultant ENT surgeon to properly advise the Claimant and their GP of circumstances in which they should be re-referred. 

The Claimant was referred by his GP for an ENT referral. On examination, no suspicious findings were elicited at the two week cancer referral assessment and the ENT Consultant wrote to the Claimant, copying in their GP, saying “I don’t think that we need to do anything further but I have told him that I would be very pleased to review him in 6 weeks’ time if his symptoms have not completely settled by then.” Contact details for the Consultant’s secretary and appointment line were provided in the same letter.

A few weeks later the patient re-presented to his GP with further symptoms. Despite the terms of the Consultant’s letter, the Claimant did not contact the Consultant’s secretary direct. Neither did the GP, who instead started a new referral via choose and book. The new referral did not lead to a further assessment (with a different ENT consultant) until several further months had elapsed. At this appointment it transpired the Claimant had cancer. 

The ENT Consultant confessed themselves to be “old fashioned” and advised Bevan Brittan that they would often phrase their instructions in this manner, which they thought polite but clear. 

The Claimant brought proceedings alleging that there was fault by the GP and ENT Consultant in failing to ensure he was reassessed in a reasonable period of time. The Claimant’s ENT expert reported that while a highly motivated “pushy” patient may see the ENT consultant’s letter as an invitation to get in contact at 6 weeks, this was not clear. It was argued the letter should have said something like “I have instructed him to phone direct on the telephone numbers given below, so that he can book into my clinic in 6 weeks”. The Claimant’s GP, who was a Co-defendant in the claim, also alleged that they did not view this as an instruction to re-refer the Claimant back when they in fact presented at the practice 6 weeks later. 

Bevan Brittan argued that on a normal construction of the letter, both the Claimant and the GP should have been on notice that an open appointment with the ENT Consultant could be secured by making contact. Clear contact details were set out in the same letter, as was an instruction to make contact in the event of any confusion. After the exchange of expert evidence the Claimant ultimately discontinued his claim against the Trust, but this does provide an example of the importance of clear written communication. Arguably, had the letter been clearer, would the Trust ever have faced a claim at all?

The interface between primary and secondary care can be a challenging one to navigate for patients and clinicians working on both sides. Trusts should take a consistent approach to communication with patients and those referring from primary care to ensure that the route to access further assessment is as clear as it can be to minimise risk and improve patient outcomes. Bevan Brittan can help by advising early on if medical records, including communications with patients and third parties, provide sufficient certainty such that a claim such as this one can be successfully defended.