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When are paediatricians negligent?
  1. Harvey Marcovitch
  1. Editor, Clinical Risk, Royal Society of Medicine Press Ltd, 1 Wimpole Street, London W1A 0AG
  1. Correspondence to Dr Harvey Marcovitch, Honeysuckle House, Balscote, Oxford OX15 6JW, UK; h.marcovitch{at}

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In 2009/2010, the National Health Service Litigation Agency (NHSLA), a Special Health Authority responsible for handling both clinical and non-clinical negligence cases on behalf of the NHS (in England only), spent £787 million ($1244.5 million; €923.5 million) dealing with 6652 clinical negligence claims. The cost is increasing by about 10% annually. Paediatrics is not a high-risk specialty, in terms of the number of claims, although some of the largest financial payouts have been for multiply disabled children, whose injuries were perinatal and whose life expectancy is long.

First European data

Until publication of the data from France in this month's ADC,1 information in journals on paediatric malpractice claims has been available exclusively from the United States. Indeed, the French group have reported previously a systematic review of six such studies.2 In this first European series of paediatric negligence claims, they interrogated the database of the French national insurer, Sou Médical-groupe MASCF, and discovered 228 claims from 2003 to 2008 involving children, where the defendant was coded as a paediatrician or general practitioner.

The English experience

Claims involving paediatricians employed by NHS Trusts are defended by the NHSLA in England, with similar bodies in Scotland, Wales and Northern Ireland. The latest factsheet from NHSLA3 does not include paediatrics in its comparative claims data (see figure 1).

Figure 1

NHSLA: total number of reported clinical negligence scheme for Trusts (CNST) claims by specialty as on 31 March 2010 (since the scheme began in April 1995, excluding ‘below excess’ claims handled by trusts).

However, from April 2003 to March 2008, NHSLA specialty coding listed 992 claims as paediatric and 87 as paediatric surgical. (Personal communication, NHSLA). It is not clear whether children might also be coded elsewhere—for example, under general practice, anaesthesia, accident and emergency (or obstetrics when perinatal claims are considered), so it is not possible to compare the total number of claims with those in France.

Editorial on the paper by Najaf-Zadeh (see p 127)

It is possible, however, to compare aetiology: NHSLA permits up to three attributable causes to be coded for each case. From 2003 to 2008, a total of 352 (32.6%) involved failure or delay in diagnosis; 238 (22.1%) inappropriate treatment and 175 (16.2%) failure or delay in treatment. Similarly, diagnostic-related error was the single most common allegation in the French study.

The extensive US experience

The largest of the published US studies reported data from the Physician Insurers Association of America (PIAA), with whom about 60% of all privately practising US clinicians are affiliated.4 Of 214 226 closed claims between 1985 and 2005 (25% of all US claims), 6363 (2.97%) involved paediatricians. Again, diagnostic errors were the largest cause (31.9%). Medication errors represented 13% in the French series, 4.7% in the United States and 2.15% in the NHSLA data. It cannot be determined whether this is a true difference or a coding artefact.

The five most prevalent diagnostic categories in the PIAA series were brain damaged infants, meningitis, ‘routine infant or child health check’, neonatal respiratory problems and appendicitis. The French data presumably exclude neonatal problems, with the commonest diagnoses being meningitis, dehydration, malignancy, pneumonia and appendicitis. NHSLA data are not sufficiently robust to design such a list.

Personal experience

Those lists are unlikely to surprise readers of ADC. However, the bald diagnostic criteria hide more information than they reveal and different coding practices prevent reliable interjurisdictional comparisons. In the absence of reliable data, readers might be interested in my personal experience, based on evaluating more than 700 of my own and others' expert reports in non-neonatal cases, provided over the last 25 years, on the instructions of claimants' and defendants' solicitors. Based on that experience, I would suggest as the commonest failings the following potential errors (not in any particular order):

  • Failing to communicate adequately with clinicians or other professionals

  • Failing to test diagnostic hypotheses and revise them when found wanting

  • Inadequate training in screening manoeuvres

  • Lack of guidance and/or knowledge in handling rare conditions

  • Misunderstanding fluid balance

  • Inadequate assessment of the neurological state of young children

  • Uncertainty about the relevance of vital signs

Failing to communicate adequately

A child was found by her parent, after hearing an unexpected noise, lying at the bottom of the stairs, appearing confused. The admitting doctor noted that the history given did not include evidence that she had fallen, so he expressed uncertainty as to the underlying cause of her period of confusion; this was apparently ignored by those who saw her subsequently and she was discharged following an overnight stay with a diagnosis of ‘minor head injury’. In fact, when she was re-admitted several weeks later careful re-questioning of those in the house confirmed the admitting doctor's observation and made it clear that she probably had a seizure which was the presenting symptom of a cerebral tumour. The ensuing litigation alleged negligent diagnostic delay.

A more cogent example comes not from negligence litigation but from evidence contained within the Report of the Victoria Climbié Inquiry.5 A paediatric trainee had written in the notes (para.10.136): ‘For home visit today with police? discharge after that if it is safe’. The doctor concerned told the inquiry that the question mark in his note meant he intended to convey that: ‘If we had received a report back from the social services and police that they had established a safe place for her to go to, that she may possibly be discharged’ (para.10.137). A nurse took the note to imply that if the home visit was satisfactory, the child was to go home (para.10.138) and another nurse discharged Victoria believing (wrongly) that the visit had taken place so that the conditions for discharge had been met (para.10.143).

Failing to test diagnostic hypotheses

A child was diagnosed on admission with ‘chest infection’ and treatment given with an antibiotic and intravenous fluid replacement calculated for 5% dehydration. The following day, a chest x-ray was reported as normal and she was found to have a low platelet count (but no petechiae) and a question was raised in the case notes (but not pursued) as to whether she might have idiopathic thrombocytopenic purpura (ITP). When the child subsequently developed headache, drowsiness and pallor, no further diagnosis was noted but analgesics were administered. The following day her conscious state deteriorated and ultimately she was found at another hospital to have cerebral venous thrombosis. The doctors concerned were criticised at a Coroner's Inquest for offering no alternative diagnosis once it was evident that their first two hypotheses—chest infection and ITP—were no longer tenable.

Inadequate screening

Failure to diagnose developmental dysplasia of the hip on neonatal or subsequent screening clinical examinations is a relatively common cause for litigation, more so before ultrasound screening was employed in high-risk cases. The allegations are often defensible, particularly in neonates, provided there is evidence that the appropriate examination has been performed. The nature of the defence is that many competent practitioners would not have made the diagnosis6—presumably because dysplasia has not yet led to subluxation.7 However, claimants often put forward an argument that properly performed screening should result in almost total eradication of ‘late’ diagnoses8 and judges have sometimes concluded that, by their own written or oral evidence, a doctor has failed to carry out an examination competently.9

Lack of guidance in handling rare conditions

A child had been diagnosed and was being followed up at a tertiary hospital for congenital adrenal hyperplasia. The child became ill with presumed gastroenteritis at the start of a holiday weekend; he was seen by doctors from a deputising service and a paediatric trainee. None knew, or found out, the child's diagnosis and parents were unable to tell them, either because of the lack of a common language or because their specialist had not informed them of potential pitfalls. It was not possible to counter the claim that written advice should have been made available to parents to show to any doctor who was asked to see their child in an emergency.

An analogous case involved a 10-year-old child with a permanent ileostomy who developed acute diarrhoea. The doctors who saw him over an 18 h period appeared to examine and treat him as though he were a healthy child with gastroenteritis. Moreover, they allegedly failed to recognise the particular risks of hyponatraemic dehydration or seek to estimate or measure the ileostomy bag contents. Parents did not have any information from his treating tertiary centre which might have assisted the doctors concerned.

Misunderstanding fluid balance

Until relatively recently, paediatric textbooks based advice on the nature and volume of maintenance intravenous fluid replacement on a study conducted more than 50 years ago10 despite warnings of rare but real risks from hyponatraemia.11 In 2007, the National Patient Safety Agency issued an alert quoting more than 50 cases worldwide of serious injury or death associated with the infusion of hypotonic infusions.12 This problem has led to negligence litigation and is currently the subject of a Public Inquiry in Northern Ireland.

Inadequate assessment of neurological status

In the United States studies quoted in the systematic review by Najaf-Zadeh et al,1 meningitis was the primary diagnosis exciting litigation. Given the dates, it is likely that many cases involved Haemophilus influenzae, with its relatively slow onset misleading medical personnel into considering more benign diagnoses. However, numerous claims are made that there has been delay in diagnosing more rapidly progressive severe bacterial sepsis, as well as potentially treatable conditions such as Herpes simplex encephalitis. The nub of these cases is often whether a primary care physician, or an accident and emergency or paediatric trainee has failed to recognise early signs of impairment of consciousness in a preverbal child (and/or signs of toxicity—see below). Score sheets to demonstrate such impairment date back 30 years13 and have been revised more recently in a National Institute of Clinical Excellence guideline.14 Nonetheless, it is clear that many practitioners, especially trainees, have problems with assessing such standard criteria as an infant's reaction to a parent's stimulation, response to the examiner's social overtures, observation of state variation and quality of cry.

In many personal cases, the case notes imply that undue reliance has been placed on nursing observations of the Glasgow Coma Score—whether or not adapted for preverbal children. While the score was devised partly to render subjective observations, more objective, record review may suggest not only a continuing degree of subjectivity but also, sometimes, a strong suspicion of retrospective charting.

Uncertainty about the relevance of vital signs

A simple question for those training paediatricians, emergency physicians and general practitioners might be: can your trainees quote normal pulse and respiratory rates for different aged children and do they know what allowance to make for concomitant fever? It is not unusual, when a child has been discharged from A&E or observed in hospital untreated, that allegations are made of failure to recognise severe bacterial sepsis, such as pneumococcal or meningococcal disease. Where such an infant does not have significantly impaired consciousness, or particularly high fever, the first clue might be an unusually rapid heart or respiratory rate. One reason that this may not provoke action is an unfounded assumption that it simply represents the effects of fever.

Making better use of databases

So, what can be done to enhance patient safety and protect clinicians? It is regrettable that the detailed and comprehensive data held by NHSLA are currently not amenable to interrogation that would allow more precise understanding of the nature of alleged breaches of duty of care. Knowledge that claims are ascribed to such generalisations as ‘diagnostic error’ or ‘delay in treatment’ does not lend itself to devising useful learning tools. For example, appendicitis was the fourth commonest diagnosis involved in a US sample of 227 paediatric malpractice claims15 as well as in an analysis of PIAA data (if birth injury is excluded).16 It was the fifth commonest diagnosis in the French series. Atypical positive and negative signs and symptoms may be at the root of this, particularly in younger patients, but information from settled cases is insufficiently detailed to lead to a reduction in risk.17

Negligence as a teaching tool

The most lasting lessons come from understanding one's own and others' mistakes. Clinicians who act as expert witnesses soon learn that the process is the only occasion on which they are likely to be provided with fully comprehensive information about an individual patient and his or her full history and management. As a teaching tool it is invaluable. Judgments are part of the public record so can be used without anxiety about confidentiality, although that is probably not true of the original records which were used in evidence. Intriguingly, authors with a legal background are content to publish case material and even patient identification where settlement has been approved by a Court. Trainers and tutors should consider including illustrative cases as part of a curriculum.

Recognising the risks of handover

Lost information lies at the heart of many disasters. Recognising this, the Royal College of Physicians of London has published advice on the design and use of handover documents.18 Older concepts such as the Weed system of problem-oriented medical records19 20 are still used by many and with its more recent incarnation, Situation Background Assessment Recording (SBAR), is designed to close communication gaps and force a requirement to restate hypotheses as a patient's journey progresses.21 The working patterns imposed by the European Working Time Directive serve only to highlight the potential dangers.

What might be called ‘third-party’ handover should not be forgotten. Children, especially with rare or complex conditions, may have the bulk of their follow-up provided at a hospital distant from their home. Both general practitioners and the local paediatric team need full information. My experience is that letters from tertiary units are often replete with technical information but tend to assume the reader is familiar with the intricacies of the condition concerned. The best referral units make sure that their communications include advice on the immediate management of potential complications; best of all is to provide such information, translated if necessary, to the family with instructions to show it to any treating doctor unfamiliar with the child.

UK clinicians should be aware that families of such children frequently subscribe to patient support groups for their particular condition. The websites of many such organisations include advice on how to complain about perceived inadequate care and some even provide links to solicitors' (attorneys') offices.

Screening should not be a Cinderella

Those who have achieved high detection rates for developmental dysplasia of the hip either provide dedicated trained examiners or make sure that whoever carries the responsibility, are appropriately trained (using live newborns and a mannequin) and assessed, individuals regularly peer-reviewed and the unit's overall performance audited.8 The same is true of other screenable conditions such as suspicious heart murmurs, congenital cataract and hearing impairment, all of which have been subject to litigation.

The good news

When I asked a senior officer of the NHSLA for information on paediatric claims he replied: ‘We don't have much trouble with paediatricians’. Even when they do, the outcome for NHS Trusts and individual clinicians is favourable, more often than not, with only 4% of cases leading to a settlement in Court (see table 1). While an accused doctor may feel distressed, hurt or angry, he or she can rest easy insofar as the defendant (apart from in general and private practice) is the employer rather than the individual. Moreover, the NHSLA now claims to close cases in an average of 1.45 years from notification. Nonetheless, the UK has a long way to go before it can match the Japanese record, where according to that country's Supreme Court of Justice only 21 paediatric malpractice lawsuits were accepted in 2003.22 The editor of the journal publishing these data added a footnote: ‘There are very few lawyers in Japan compared with the United States’.

Table 1

Outcome of clinical claims received by the NHSLA in the 10 years between 1 April 1997 and 31 March 2008



  • Competing interests The author receives fees for the provision of expert reports on the instructions of solicitors engaged in clinical negligence litigation. He receives royalties in regard to his editorship of Clinical Risk, a journal which incorporates the NHS Litigation Agency Newsletter and Action Against Medical Accident Medical & Legal Journal.

  • Provenance and peer review Commissioned; externally peer reviewed.