Doctors Under the Microscope
By Tony Leather with additional material by Dr Rita Pal (www.juniordoctor.com)

We examine the trend of doctors accused of manslaughter in the Post Shipman Era.

Nobody expects to die in hospital, unless they are terminally ill, but there is always a chance that something can go wrong. We rely on the doctors to know what they are doing, and trust them to give us the right treatment for our needs, but it doesn't always work out that way. We live in a culture today, of apportioning blame and claiming compensation, but do we always get it right? This era is known as the Post Shipman era.

Doctors are professionals, and as such expected to exercise proper care in their work, but mistakes can and do happen, often because a doctor is simply overly tired. Occasionally, a patient dies as a result of alleged negligence, and a criminal charge of manslaughter may follow. Up to 1990 these cases were very rare, but the climate changed.

Seventeen doctors were charged with manslaughter in the 1990s, compared with two in each of the preceding two decades, perhaps because of a greater readiness to involve the police, or to prosecute because juries seem more ready to convict nowadays. Dr Shipman seems to have changed the future of the medical profession forever. Doctors can be convicted of manslaughter if someone dies as a result of their gross negligence.

This is defined as negligence occurring when there is a wholly irresponsible disregard of a serious risk to others, of which the defendant is aware or "to which he made himself willfully blind." A jury must decide whether a defendant's conduct was so negligent that it would be sufficient to succeed in the test for criminal negligence.

Some of the cases that have been pursued in the last decade have involved junior doctors, though by no means all of them. Of the 21 doctors charged between 1970 and 1999, 10 were convicted, but three of them had their conviction quashed on appeal.

Of the six doctors charged with manslaughter between the beginning of 2000 and mid-2002, only one, an anaesthetist, was found guilty. At least three of the remaining five were acquitted on the direction of the judge, after the prosecution case collapsed. In another, the judge had nudged the jury towards its decision by summing up for an acquittal.

Negligence on the part of a doctor is very difficult to prove, but some cases do highlight the need for closer supervision of juniors, because many mistakes were definitely avoidable, had more care been taken. Some examples follow.

Junior doctors are easy targets. With the BMA as their trade union where their lawyers were found guilty of professional misconduct themselves, it seems unlikely that any junior who finds themselves being blamed will be adequately represented. NHS Trusts are almost too keen to scapegoat juniors for their own failings. Afterall, if there is a choice between the doctor footing the bill or the Trust, which would the Trust choose? In reality juniors certainly have limited option available to them. Lawyers are expensive and often have a potential conflict of interest in representing Trusts ( in some cases). Trade Unions are next to useless. The General Medical Council certainly offer no protection for juniors who find themselves in this predicament. Studies do show that foreign doctors are more likely to be found guilty of professional misconduct.

In 1978, a South Asian, 28 year old, female junior doctor in one hospital gave 650mg dose of the drug Methotrexate intracerebrally, instead of intravenously, to a 4 year old boy who had had a brain tumour removed. He subsequently died, because the dose was 20 times too great. This junior doctor had taken the dosage from the case notes, "not knowing that it related only to intravenous drips." She charged with manslaughter but acquitted.

In 1990, a locum junior anaesthetist failed to recognize the clinical signs of lack of Oxygen, during an operation for retinal detachment. The 33 year old male patient died six months after he had had a cardiac arrest during surgery, caused by the hypoxia which occurred when the patient's endotracheal tube became disconnected from the oxygen supply. The junior noticed a problem only when a blood pressure alarm sounded some four and a half minutes after disconnection. One expert described the standard of care as abysmal and another said that the doctor's conduct amounted to a gross dereliction of care. The anaesthetist was charged with manslaughter and convicted. Subsequent appeals failed.

In 1991, two European junior doctors were treating a 16 year old boy with leukaemia, who was receiving chemotherapy with intravenous vincristine and intrathecal methotrexate after a relapse. During a lumbar puncture, one junior doctor passed two syringes to his colleague, who injected both without checking them. Realising that a mistake had been made, the juniors tried to correct the error, but in doing so, punctured the brain stem and the boy died. The two were convicted of manslaughter, but went free on appeal, because the trial judge had not directed the jury to consider whether each doctor was grossly negligent.

In 1999, a South East Asian, male junior doctor, working in a hospital Pediatrics department, was charged with manslaughter after the death of a 12 year old boy with T cell non-Hodgkin's lymphoma, after vincristine for intravenous use given intrathecally He had not read the label properly, and the boy subsequently died. Before trial in the crown court, it was realised that "significant system failures within the hospital administration" were important factors in the boy's death". The crown offered no evidence, and the doctor was acquitted.

Of course, there are occasions when negligence really is the cause of a patient death. An anaesthetist got six months' imprisonment in July 1999 for the manslaughter of a 14 year old boy, with Goldenhar's syndrome, at a dentist's surgery. The boy had been given nitrous oxide instead of oxygen postoperatively because the tubing was wrongly connected, and the doctor admitted failing to check the equipment. Neither he nor the dentist had obtained the patient's medical history, or they would have known about the abnormalities associated with Goldenhar's syndrome, which make resuscitation more difficult. "This offence was one of the most gross negligence." Commented the judge.

It is sometimes difficult or impossible to categorise errors. In this series of prosecutions for manslaughter, mistakes were primarily responsible for seven deaths, and slips or lapses for nine more, but holding someone to account for these fatalities is far from easy.

The success rate for medical manslaughter prosecutions is much lower than for manslaughter generally, simply because, for a manslaughter charge to stick, it must be proved that the defendant caused the death. The cause of death is much harder to state with certainty in medical cases.

In reality, of seven doctors, including GP's, who have been convicted in the last twenty-five years, only one was a 'junior doctor'. One cannot help but wonder just how much responsibility needs to be borne by those health authorities who impose such demanding working times on doctors generally, but on juniors in particular.

Recent cases to come to light include that of a junior doctor, who was charged with manslaughter after a patient died, because a feeding tube was incorrectly inserted. He was cleared, after just 28 minutes of deliberation, by a jury at Nottingham crown court, in February 2003.

Hiral Hazari, now 25, was accused of causing the death of 78 year old Maura Katherine O'Reilly by gross negligence, when he was a 23 year old pre-registration house officer, just six weeks into his first job. The mother of six, died after being fed through a nasogastric tube that was wrongly fitted.

Dr Hazari, thought to be the youngest UK doctor to be charged with manslaughter, had been asked by nurses to look at an x-ray picture, that would have shown that the tube was protruding into a lung, and had given the go ahead for feeding to start. Prosecuting counsel Peter Joyce said.

"Any doctor, and that includes Dr Hazari, on seeing that x- ray would not have authorized the starting of the feeding that killed Mrs O'Reilly. That is the clearest example of gross negligence."

But Dr Hazari, even as a junior, had been responsible for three acute wards and one other ward at Leicester's Glenfield Hospital when the incident happened. He claimed no recollection of having seen the picture, nor had he made any entries relating to it in the patient's medical notes. He was, typically for any junior doctor, under intense pressure of work.

In April 2003, two other junior doctors escaped custody, despite being found guilty of killing a patient after failing to spot that he was seriously ill. Sean Phillips died after going into Southampton General Hospital for routine knee surgery in June 2000.

He developed a rare condition called toxic shock syndrome, which was not diagnosed.

A jury at Winchester Crown Court took nine hours to find Dr Amit Misra, 34, and Dr Rajeev Srivastava, 38 guilty of manslaughter by gross negligence in a majority verdict. The judge, Mr Justice Gordon Langley, sentenced the two doctors to 18 months imprisonment, suspended for two years, due to mitigating circumstances.

It is interesting to note that, in many of these cases, the doctors involved stated quite clearly that they held the pressures under which they worked as being partly to blame for the errors in judgement. We know that junior doctors work an average 70-hour week; far more than any other profession are called upon to do, so perhaps we can sympathize with their plight.

Even so, it is truly horrifying to think that a small lapse in concentration can have such dire consequences, and those in power at health authorities need to be looking seriously at the problem. Some twenty odd deaths over a quarter century may seem small beer, when you consider how many patients have passed through the system, but it is surely still too many.

Perhaps also, it is worthy of note that most of the doctors involved in these cases were not home grown, but hailed from foreign countries. With the current, frantic NHS drive for the recruitment of overseas staff, to overcome acute staff shortages in all areas, one might perhaps be forgiven for worrying about possible communications failings due to language difficulties.

There is no doubt that the death of a patient is the last thing any doctor wants to see, but sometimes cannot avoid. If they cannot get the rest that the demands of their jobs realistically require them to have, then perhaps nobody should be surprised that not everything in the garden is as rosy as both the NHS and Department of Health would like us to believe. Indeed, the corporate manslaughter law applied to many organizations may well apply to Trusts itself. To our knowledge there has been no test case to date. ( Information on Corporate Manslaughterhttp://news.bbc.co.uk/1/hi/uk/3053239.stm)

There will, undoubtedly, be more deaths and even more calls for prosecution, because of 'negligence', but is it truly the negligence of the doctors themselves that we should question, or the seemingly sublime indifference of the health authorities to genuinely serious problems? The choice is yours?

RESOURCES

Prosecution or Persecution
http://bmj.com/cgi/content/full/324/7336/553

Teenager Dies After Surgeon lost his temper
http://bmj.com/cgi/content/full/323/7326/1387

Medication Errors that have led to Manslaughter Charges
http://bmj.com/cgi/content/full/321/7270/1212

Doctors Face Trial
http://bmj.com/cgi/content/full/325/7355/63

GP Faces Manslaughter Charges
http://bmj.com/cgi/content/full/316/7148/1852/d

Doctors Blighted by Shipman Backlash
http://news.bbc.co.uk/1/low/health/1251196.stm

__________________
'The way I see it, if you want the rainbow, you gotta put up with the rain.'