Conduct by doctors contributes to preventable patient harm in many ways, because of their multiple roles in healthcare. The first is the direct role doctors have in individual patient care – what is sometime called the “pointy end” of medicine in the patient safety literature. Patient harm caused by or contributed to by doctor conduct of this kind can arise from:
• Human errors of commission made by doctors, for example: where a wrong diagnosis is made; where wrong tests are conducted; where there are poorly or incorrectly performed procedures; where slip-lapse performance errors occur; where wrong procedures are followed and the many human errors identified in the studies discussed above;
• Human errors of omission, where doctors do not act, such as: omitting to check test results or to conduct appropriate tests; failing to diagnose a condition despite a
30 For an excellent discussion of this issue, see Healy J. Improving healthcare safety and quality –
reluctant regulators. 2011 Ashgate Publishing, Surrey (UK).
31 Healy 2008. – see note 30 at pages 127-128. For examples of the types of regulatory tools fitting
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patient having clear symptoms; not investigating symptoms reported by a patient or their carer; not washing hands or following sterile procedures;
• Violations or deliberately unsafe acts, such as: choosing not to follow a protocol, procedure or other measure; choosing not to follow evidence-based guidelines; choosing not to inform a patient about some treatment options or about their risks and benefits;
• Practices driven by various conflicts of interest, which are not disclosed to a patient, but which may expose a patient to greater risk of harm, for example: referring a patient to a hospital in which a doctor has a financial interest when this may not be the safest option for the patient; prescribing drugs promoted to the doctor by a drug company when safer drugs are available; referring patients for tests or carrying out procedures motivated by fear of litigation (so-called “defensive medicine”); recommending treatment influenced by the doctor’s specialty or “normal” process, when either another medical specialty may be more appropriate or safer or when “watchful waiting” is the best practice choice;
• Not knowing about and not developing safeguards or patient protective strategies against the specific errors that are more likely in their kind of practice or with their specific skills, for example: the cognitive “grouping” skills required for accurate diagnosis can result in inappropriate categorisation based on prejudices or
stereotypes; the “quick thinking” required in emergency treatment may not always be the safest or best approach for a patient when there is less urgency; and
• Not recording or reflecting on the outcomes of patients who have a clinical interaction with the doctor, to determine whether there has been any preventable harm done to the patient, and thus not addressing what should be done either to help this patient or prevent harm happening again.
Doctors also have crucial patient harm prevention roles in systems of care – for
example, as members of care teams, as identifiers of risk, as notifiers of patient harm, as clinical leaders, and as models for and educators of less experienced or trainee doctors. Again, patient harm can be caused or contributed to by doctor conduct, both actions and inactions, in these areas, for example:
• Through actions which increase the risk of team members not “speaking up” if they have a patient safety concern, for example: by encouraging and maintaining power differentials; by abusing or criticising staff who ask questions; by not recognising or
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using the skills of other team members where appropriate, where this failure can result in risk of harm to the patient;
• Through not acknowledging or speaking up about known human limitations in the design of systems of care, for example: relating to fatigue, stress and attentional capacity;
• Through not raising concerns about unsafe or out-dated practices, when they are aware of new information or that the patterns of care create risks to patients;
• Through not reporting or recognising patient harm when it occurs, and not engaging in the development of systems to look at the outcome for every patient, where treatment is provided or a diagnosis is made, to check for unnoticed harm; • Through not learning about, understanding and reporting identified risks in their
own practice or in care provided by others, for example: the impact of external stresses on their capacity; the conduct of fellow doctors who put patients at risk through ill-health or sub-standard performance; equipment that malfunctions; and • Reluctance or refusal to participate in the review of individual patient outcomes
from their care team and to reflect on whether their own teams’ practices are delivering safe and quality care for their patients.
At a patient safety organisation level, doctors also have important and unique roles, for example, in Medical Colleges, on hospital committees, protocol and guideline
development, implementation and maintenance, peer review, determining credentialing rights on performance data, and engagement in accreditation processes. The positive role of doctors in these processes is fundamental to achieve effective systems and hence to reduce or eradicate preventable patient harm. Individual actions or failures to act can contribute to patient harm at this level as well.
Patient safety theory has tended to identify problems arising here as “system failures”, but these systems are all the product of the actions and inaction of individual people and groups of people. The “system” is not an external, amorphous entity, separate from the people involved in its existence. Those who knowingly fail to act to prevent patient harm at the “system” level and those who do not look to see if there is preventable harm occurring, can also be considered responsible for the continuation of preventable patient harm, particularly where they are in leadership positions. Such inaction also provides an environment where mediocre care can come to be seen as normal, acceptable practice by those not in leadership roles.
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Responsibility of this kind is not like individual blame for making an error or causing patient harm. Rather, this sense of responsibility is akin to the concept of “reactive fault” developed by Brent Fisse in relation to criminal responsibility in corporations32. Under this model of responsibility, doctors and health administrators, as the responsible actors at the top of the hospital hierarchy, would have a legal responsibility to prevent harm and to restore the consequences of any failures to act. Liability would not arise from making the mistake or causing the harm, but from the failure to act to prevent repetition.
Because of the power of doctors within the clinical relationship, the clinical team, within healthcare generally, and in hospitals in particular, the influence of doctors in relation to patient safety issues extends beyond individual action and inaction, to shape the culture of healthcare. This power can either contribute to or reduce the tolerance of healthcare to preventable patient harm. The importance of an appropriate culture in reducing preventable patient harm has been the subject of much discussion in patient safety literature33 and in boards of inquiry into specific problems34. While culture has often also been attributed to “the system”, the culture of an organisation, a team and a practice is made up, again, of many individual’s actions and inactions, within a framework of values. Doctor conduct currently dominates and shapes the norms and values at each level. If doctor conduct is consistent with the primacy of patient safety, this can create a rich and responsive environment, with an embedded focus on
preventing harm to patients. The obverse is also possible.
32 Fisse B. Reconstructing corporate criminal law: deterrence, retribution, fault, and sanctions.
1983 Southern California Law Review, volume 56, pages 1141-1246: see especially pages 1195 and following. There is a comprehensive discussion of the concept of “reactive responsibility” in Cane P. Responsibility in Law and Morality. 2002 Hart Publishing, Oxford: at pages 36-39.
33 See eg, Mannion R. Davies H. Marshall M. Cultures for performance in healthcare. 2005 Open
University Press, Berkshire (UK); Runciman B. Merry A. Walton M. Safety and ethics in healthcare: a guide to getting it right. 2007 Ashgate Publishing, Aldershot (UK): see especially pages 271-273.
34 See eg, Healthcare Complaints Commission (NSW) (chair: Amanda Adrian). Investigation
Report: Campbelltown and Camden Hospitals Macarthur Health Service. December 2003; Inquiry into obstetric and gynaecological services at King Edward Memorial Hospital (chair: Neil Douglas). Final report. November 2001; Mid Staffordshire NHS Foundation Trust Public Inquiry (chair: Robert Francis QC). Report of the Mid Staffordshire NHS Foundation Trust Public Inquiry– Executive Summary. February 2013.
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