The recent judgment in the Toombes vs Mitchell case has raised considerable concern among GPs and doctors in general. Many shocked and distressed comments have been posted on the GP Survival and On-Call Room Facebook page and the Doctors’ Association UK (DAUK) Wall of Support in collaboration with NHS Million for Dr Philip Mitchell. We also saw the appearance of a supportive #IAmPhilipMitchell hashtag on Twitter.
20-year-old Evie Toombes, who was born with a rare neural tube defect - lipomyelomeningocele - won her legal case against GP Dr Philip Mitchell earlier this month. The case argued that if Ms Toombes’ mother had been given advice to take folic acid, she would have postponed getting pregnant and her daughter would not have been born.
The judge in the case ruled that Dr Mitchell was liable for damages.
Many doctors are concerned that the judge chose to prioritise the unevidenced and evolving statements of the mother over the brief contemporaneous records of the GP and his honest admission that he does not have any other specific recall of the advice given 20 years ago.
Why are doctors concerned?
Also of concern is the evolution of the litigation from an initial claim that folic acid supplementation if fully advised would have prevented the condition, to a subsequent claim that adequate advice would have caused the mother to defer pregnancy for several months resulting in a genetically different individual. This was made after it emerged that lipomeningomyocele is not related to folate deficiency.
The judge’s decision to accept the mother’s recall of events as fully accurate is particularly odd since the majority of research literature suggests patient recall of information given in consultation is at best 40%, even in the short term.
Some have said that this case appears to show that the doctor was assumed to be in the wrong and must prove otherwise, others have referred to a sword hanging over the profession that they could be judged on decisions and records made 20 years ago by the standards of today.
There is a general consensus that it could have been almost any GP colleague in the dock, and that almost all would have had similar deficiencies in recall and record keeping.
An interesting reaction from a doctor with disability, echoed by many in the disabled community, is that the ruling represents a sinister ableist devaluation of people with disability – that disability is a demonstrable harm for which recompense must be paid.
Implications of the ruling
The implications of the ruling for GP practice are significant, mainly based on the likelihood that a much more defensive type of medicine will result, with doctors practising more as lawyers than clinicians.
Detailed and extensive consultation records and documentation of safety-netting for every possible adverse outcome will take considerably longer than the current 10-minute appointment slot, and is likely to have a significant adverse affect on access and appointment availability, to the detriment of patient care.
Some have suggested that all consultations should be fully recorded, but this raises many issues including time constraints and data protection rules, and may actually be detrimental to the doctor/patient relationship and block reveal of patient ‘hidden agenda’.
Rather than verbally discuss potential risks and side-effects and risk missing some vital point, some have suggested simply handing out patient leaflets could avoid such problems. But this again would detract from the relationship with the patient and potentially discriminate against those lacking literacy skills.
The legal profession is surprised at the strength of reaction from doctors, viewing this as a highly specific case relevant only to pre-conception counselling (which they feel GPs only do rarely) and consequent disability, and insist there are no wider implications.
However almost all doctors who have commented on this, view it as a milestone likely to be quoted in multiple other scenarios and test cases – perhaps even resulting in a whole new stream of litigation from patients claiming they would have made significant lifestyle changes if fully advised of rare but serious implications of their habits.
The most concerning outcome, at a time of recruitment and retention crisis, is that very many of those doctors commenting on our Facebook page and DAUK’s Wall of Support have said that this ruling has made them seriously consider leaving GP practice, or choosing an alternative career path if juniors, further increasing the stresses on a profession with inadequate workforce.
- Dr John G Hughes is chair of GP Survival