Litigation and the Diabetic Foot

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Litigation and the Diabetic Foot

• Graham Bowen Portsmouth City Teaching PCT
• Martin Fox Tameside and Glossop PCT

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Overview of the session

• Why us
• Review 2 cases
• Summarise basic legal position
• Interactive live role play
• HPC and litigation
• Take home tool risk assessment

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Common reasons for litigation

• Failure to
• assess the patient adequately
• explain reasons for interventions
• obtain informed consent
• take action when patients did not attend
  appointments
• educate patients
• request necessary investigations
• make timely / appropriate referrals
• Inadequate treatments
• Over-long treatment intervals
• Lack of follow-up care
• (Bending Foster, 2004)

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The basic legal position

• 3 elements for a claim in negligence
• Proof of duty of care owed
• Proof of breach of duty (Liability)
• Proof that the breach caused the losses claimed
  (Causation)

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The Bolam / Bolitho test

• A healthcare professional is not guilty of
  negligence if he has acted in accordance with a
  practice accepted as proper by a responsible body
  of such professionals skilled in that particular
  art
• I.e. a healthcare professional is not negligent
  if he is acting in accordance with such a
  practice merely because there is a body of
  opinion who would take a contrary view Bolam v
  Friern Hospital Management Committee 1957 WLR 583
• But if in a rare case it can be demonstrated that
  the professional opinion is not capable of
  withstanding logical analysis after balancing and
  weighing the relevant risks and benefits, the
  judge is entitled to hold that the body of
  opinion is not reasonable or responsible Bolitho
  v City and Hackney Health Authority 1998 AC 232

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Questions

• Private practice or NHS?
• Lone working?

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Case 1

• The claimant was an 85 year old gentleman with
  diabetes living in a residential home
• 25th Oct received treatment from his GP for an
  infected ingrown toenail
• GP prescribed 2 week course of antibiotics
• No follow-up appointment was given

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Case 1

• 10th Nov 2 days after completing the
  antibiotics, patients son contacted a local
  private podiatrist
• The son said he was unhappy with the treatment
  that his father had received from the GP and that
  there had been no improvement in the condition of
  his fathers foot
• Podiatrist said they would visit the patient

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Case 1 - Podiatrist visit

• 13th Nov 3 days later the podiatrist provided a
  home visit on a Friday afternoon
• On this visit the podiatrist treated the toe by
  removing a spike of nail from the IGT and
  applying a dressing
• Podiatrist insisted that the patient contact his
  GP on Monday (3 days later) for a further course
  of antibiotics

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Case 1 - Podiatrist visit

• Podiatrists notes state
• On removal of a spike of nail a small dry area
  of gangrene was exposed
• Patient was seriously critical of treatment
  given by GP.
• Podiatrist later reported he had
• Decided not to tell the patient about the dry
  gangrenous area
• Considered the gangrene would not spread by
  Monday
• Informed the patient that he had an ulcer on his
  toe which he had cleaned and dressed

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Case 1

• Sunday 15th Nov patient went to casualty as the
  pain had increased. Seen by the Triage nurse who
  advised that he see his GP on Monday (the next
  day)
• Mon 16th Nov after seeing his GP he was admitted
  to hospital 2 days later (Wed 18th Nov)
• Wed 18th Nov patient seen by vascular consultant
  who reported that the gangrene had spread
• Thurs 19TH Nov he had his forefoot amputated

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The claimant

• The podiatrist is accused by the claimant of
  clinical negligence leading to amputation of his
  foot
• Litigation is threatened

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Summary - claimants account

• Toe was examined by a senior nurse in casualty on
  Sunday 15th November. They advised me to contact
  my GP first thing Monday morning
• Saw GP on Monday and he asked who had done this
  to me? He immediately referred me to the hospital
  because my toe was painful and discoloured

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Defendants account

• I examined the patients left toe which he told
  me was painful
• During the consultation the patient was seriously
  critical of the care he had received from his GP
  for the toe and that he was fed up with just
  being given antibiotics
• I think the patient stated that he had finished
  his antibiotics

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Defendants account

• I noticed that that along the sulcus of the nail
  the skin was much darker in colour and that the
  nail was involuted
• I removed a spike of nail and revealed a small
  patch of dry gangrene
• For a number of reasons, on the spur of the
  moment I decided not to tell the patient that
  part of his toe was affected by gangrene

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Medical report from the GP

• Patient has been under my care for a number of
  years. He has a history of ischaemic heart
  disease for which he had bypass surgery in 1994
• On examination of the patient on 25th October, it
  was clear that he had poor circulation to his
  foot. It looked like his big toe was infected. He
  was prescribed a 2 week course of antibiotics. I
  advised him to take all of the antibiotics as
  healing is very slow in patients with diabetes

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Medical report from the GP

• On 13th November (19 days later) the patient
  referred himself to the podiatrist who carried
  out an operative procedure on the toe. I was not
  contacted before this procedure was carried out
• When I saw patient on Mon 16th November he had a
  gangrenous big toe. The patient was then admitted
  to hospital on Weds 18th November as a result of
  my referral

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Problems for Podiatrist

• Delay for 3 days before visiting patient
• No contact with patients GP before or after
  visit
• No proper assessment of patients condition or
  level of risk presented by foot
• Misinforming / misleading patient as to nature of
  problem and treatment
• Thus no informed consent was given to a very
  limited treatment

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Problems for Podiatrist

• On discovery of previously undetected gangrenous
  changes, failing to treat with required urgency.
  Risk that it could spread rapidly
• Failing to refer at once for assessment by
  multidisciplinary specialist team / GP
• Inadequate notes/records thinks patient
  said.
• Probably NEGLIGENT i.e. podiatrists treatment
  fell below acceptable standards

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Case 2

• Male Type 2 (4 years duration), age 56
• Ex military, self employed landscape gardener
• Developed ulcer under L 1st met head due to stone
  in shoe and seen in joint diabetes foot clinic
  with MDT
• Attended for three weeks
• Did not take prescribed antibiotics could not
  be bothered
• This was healing and despite advice..

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Case 2

• Fourth Week Original ulcer healing however
  reports spending day on a ladder and developed
  blister over L 5th Met lateral aspect
• Podiatrist debrided presenting blister and
  infected wound exposed
• Swab taken and range of antibiotics prescribed
  with strict advice to take course
• Advise to rest
• Planned review 3 days latter

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Case 2

• Reported on next visit had not rested and not
  taken antibiotics couldnt be bothered too
  much on
• Foot had worsened and admitted that day and had
  4th 5th ray amputated
• Complaint re Pods last treatment resulted in loss
  of toes
• Not happy with investigation report, stated all
  you people stick together and pursed litigation
  against the Pod and Diabetes Consultant for loss
  of earnings

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Case 2

• Notes and photographs were deemed just
  adequate, despite comprehensive documentation of
  events and demonstrated team working
• No blame could be highlighted
• Patient eventually retracted litigation
• But whole episode and process extremely stressful
  and questioned my clinical practice

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Probability

• BUT Is it more probable than not that the
  podiatrists negligence either caused or
  contributed to the need for amputation?
• Was the situation retrievable by the date of the
  sons telephone call?
• If yes - podiatrist is liable in damages
• If no - causation not established, but
  podiatrists reputation damaged

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All stand!

• On reflection, could you see yourself possibly
  being in a similar situation to the podiatrist in
  either of these case examples?
• Stay standing if you think no
• Sit down if you think yes

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Task

• Read the following examples of two sets of
  notes, written by different podiatrists,
  following the same consultation
• Which is the better of the two sets of notes?

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Read these notes

• Notes A
• Seen as SOS from GP. Patient on antibiotics
• for R / foot ulcer .
• Debrided today.
• Dressed with dry dressing. Advice given.
• Review 14

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Read these notes

• Notes B
• S - Patient seen following request by GP re
  diabetic foot infection. On Flucox 250mg qds
  since 4 days.
• O - Ulcer on right 4th met head, with sloughy
  base and surrounding erythema to base of R/3/4
  web space. Exuding. Some odour.
• A - Debrided of surrounding callus, swabbed and
  dressed with Iodosorb and Biatain mefix.
• P - Advised patient to rest, contacted practice
  nurse for wound review every 3 days, rebooked in
  7 14 in hospital clinic.

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Compare the notes

• Notes A
• Seen as SOS from GP. Patient on antibiotics
• for R / foot ulcer .
• Debrided today.
• Dressed with dry dressing. Advice given.
• Review 14

• Notes B
• S - Patient seen following request by GP re
  diabetic foot infection. On Flucox 250mg qds
  since 4 days.
• O - Ulcer on right 4th met head, with sloughy
  base and surrounding erythema to base of R/3/4
  web space. Exuding. Some odour.
• A - Debrided of surrounding callus, swabbed and
  dressed with Iodosorb and Biatain mefix.
• P - Advised patient to rest, contacted practice
  nurse for wound review every 3 days, rebooked in
  7 14 in hospital clinic.

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Which set of notes are better in your opinion?

• Notes A
• Seen as SOS from GP. Patient on antibiotics
• for R / foot ulcer .
• Debrided today.
• Dressed with dry dressing. Advice given.
• Review 14

• Notes B
• S - Patient seen following request by GP re
  diabetic foot infection. On Flucox 250mg qds
  since 4 days.
• O - Ulcer on right 4th met head, with sloughy
  base and surrounding erythema to base of R/3/4
  web space. Exuding. Some odour.
• A - Debrided of surrounding callus, swabbed and
  dressed with Iodosorb and Biatain mefix.
• P - Advised patient to rest, contacted practice
  nurse for wound review every 3 days, rebooked in
  7 14 in hospital clinic.

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Consensus?

• Notes B
• S - Patient seen following request by GP re
  diabetic foot infection. On Flucox 250mg qds
  since 4 days.
• O - Ulcer on right 4th met head, with sloughy
  base and surrounding erythema to base of R/3/4
  web space. Exuding. Some odour.
• A - Debrided of surrounding callus, swabbed and
  dressed with Iodosorb and Biatain mefix.
• P - Advised patient to rest, contacted practice
  nurse for wound review every 3 days, rebooked in
  7 14 in hospital clinic.

Do we agree that these are the better set of
notes compared to Notes A?
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The case

• 54 year old man with type 2 diabetes presented
  to his GP with a weeping blister on his right
  foot of 1 days duration
• The GP prescribed antibiotics and arranged
  dressings via the Practice Nurse. The patient
  came back in 3 days saying it was a bit sore
  now
• GP was worried and told him to go to the
  diabetes foot clinic at the hospital the same
  day. The patient went the day after and was seen
  as an SOS by the podiatrist at the end of the
  clinic

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Notes made by podiatrist

• Notes B
• S - Patient seen following request by GP re
  diabetic foot infection. On Flucox 250mg qds
  since 4 days.
• O - Ulcer on right 4th met head, with sloughy
  base and surrounding erythema to base of R/3/4
  web space. Exuding. Some odour.
• A - Debrided of surrounding callus, swabbed and
  dressed with Iodosorb and Biatain mefix.
• P - Advised patient to rest, contacted practice
  nurse for wound review every 3 days, rebooked in
  7 14 in hospital clinic.

Agreed as better by us here?
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Outcome

• Patient developed increased pain, swelling and
  redness after 2 days. Reported to AE after 5
  days.
• Was admitted and referred to vascular surgeon.
  Angiogram showed only 1 (of 3) arteries patent
  and extensive arterial calcification.
• Necrosis of Right 5 toe and spreading cellulitis
  in forefoot. IV antibiotics, partial forefoot
  amputation, uneventful healing over 6 months.

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Patient says

• The podiatrist seemed worried about my foot and
  rang the Consultant twice while I was there, but
  couldnt get hold of him. They said I would see
  him next time if needed.
• It got worse a day or two after seeing the
  podiatrist. I rested as advised.
• I didnt know it could end up with amputation.
  If Id known I would have gone to AE on the
  Thursday when it felt worse, not Sunday.

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The journey to amputation

• Thur Develops ulcer
• Fri Pain - sees GP PN - Antibiotics
  dressing
• Mon Increased pain - sees GP - Advice ref
• Tues Podiatrist treatment - swab dressing
  7 - 14 day return advised rest
• Thur Increased pain swelling redness -
  rested
• Sun Foot worse - AE necrotic - admitted
• Mon Vascular surgeon - angiogram
• Tues IV antibiotics partial forefoot
  amputation

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Podiatrist vs Barrister
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Barrister uses NICE 2004

• S - Patient seen following request by GP re
  diabetic foot infection. On Flucox 250mg qds
  since 4 days.
• O - Ulcer on right 4th met head, with sloughy
  base and surrounding erythema to base of R/3/4
  web space. Exuding. Some odour.
• A - Debrided of surrounding callus, swabbed and
  dressed with Iodosorb and Biatain mefix.
• P - Advised patient to rest, contacted practice
  nurse for wound review every 3 days, rebooked in
  7 14 in hospital clinic.

• Did you assess the patients vascular status,
  ulcer depth and glycaemic status on that day,
  then refer on as necessary?

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Barrister uses NICE 2004

• S - Patient seen following request by GP re
  diabetic foot infection. On Flucox 250mg qds
  since 4 days.
• O - Ulcer on right 4th met head, with sloughy
  base and surrounding erythema to base of R/3/4
  web space. Exuding. Some odour.
• A - Debrided of surrounding callus, swabbed and
  dressed with Iodosorb and Biatain mefix.
• P - Advised patient to rest, contacted practice
  nurse for wound review every 3 days, rebooked in
  7 14 in hospital clinic.

• Did you facilitate aggressive, early management
  of the infection, in view of the fact that it was
  worse at 4 days after initial antibiotics?

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Barrister uses NICE 2004

• S - Patient seen following request by GP re
  diabetic foot infection. On Flucox 250mg qds
  since 4 days.
• O - Ulcer on right 4th met head, with sloughy
  base and surrounding erythema to base of R/3/4
  web space. Exuding. Some odour.
• A - Debrided of surrounding callus, swabbed and
  dressed with Iodosorb and Biatain mefix.
• P - Advised patient to rest, contacted practice
  nurse for wound review every 3 days, rebooked in
  7 14 in hospital clinic.

• Did you involve the Consultant / Registrar for
  early follow up of your swab results?

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Barrister uses NICE 2004

• S - Patient seen following request by GP re
  diabetic foot infection. On Flucox 250mg qds
  since 4 days.
• O - Ulcer on right 4th met head, with sloughy
  base and surrounding erythema to base of R/3/4
  web space. Exuding. Some odour.
• A - Debrided of surrounding callus, swabbed and
  dressed with Iodosorb and Biatain mefix.
• P - Advised patient to rest, contacted practice
  nurse for wound review every 3 days, rebooked in
  7 14 in hospital clinic.

• Did you provide or refer for adequate pressure
  relieving devices for the ulcer?

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Barrister uses NICE 2004

• S - Patient seen following request by GP re
  diabetic foot infection. On Flucox 250mg qds
  since 4 days.
• O - Ulcer on right 4th met head, with sloughy
  base and surrounding erythema to base of R/3/4
  web space. Exuding. Some odour.
• A - Debrided of surrounding callus, swabbed and
  dressed with Iodosorb and Biatain mefix.
• P - Advised patient to rest, contacted practice
  nurse for wound review every 3 days, rebooked in
  7 14 in hospital clinic.

• Did you check that the patient was aware of the
  risk of amputation with a foot ulcer and if they
  were not inform them of the risk?

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You - The jury

• Consider the evidence / facts that I will now
  summarise
• Raise your hand if you agree with the facts as I
  present them
• Finally, raise your hand if you think there was a
  breach of duty of care with Grahams treatment,
  in relation to the evidence here

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Summary of the facts

• S - Patient seen following request by GP re
  diabetic foot infection. On Flucox 250mg qds
  since 4 days.
• O - Ulcer on right 4th met head, with sloughy
  base and surrounding erythema to base of R/3/4
  web space. Exuding. Some odour.
• A - Debrided of surrounding callus, swabbed and
  dressed with Iodosorb and Biatain mefix.
• P - Advised patient to rest, contacted practice
  nurse for wound review every 3 days, rebooked in
  7 14 in hospital clinic.

• Failure to assess PVD and depth and glycaemic
  status
• Failure to identify worsening infection
• Failure to involve timely specialist medical
  input
• Failure to instigate specialist pressure relief
• Failure to inform patient of current risks,
  consequences ie amputation

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Verdict breach of duty of care?

• S - Patient seen following request by GP re
  diabetic foot infection. On Flucox 250mg qds
  since 4 days.
• O - Ulcer on right 4th met head, with sloughy
  base and surrounding erythema to base of R/3/4
  web space. Exuding. Some odour.
• A - Debrided of surrounding callus, swabbed and
  dressed with Iodosorb and Biatain mefix.
• P - Advised patient to rest, contacted practice
  nurse for wound review every 3 days, rebooked in
  7 14 in hospital clinic.

• Failure to assess PVD and depth and glycaemic
  status
• Failure to identify worsening infection
• Failure to involve timely specialist medical
  input
• Failure to instigate specialist pressure relief
• Failure to inform patient of current risks,
  consequences ie amputation

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Just one of those days
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How it can feel

• I felt devastated let down isolated
  scared confused disappointed angry
• I questioned my competence every hour for
  over a year I still do too frequently
  despite the valued support of my manager and
  colleagues

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How it can feel

• The whole thing almost ruined my confidence
  and therefore my career
• I felt nervous every time I saw an ulcer on my
  own or with colleagues (10 to 20 ulcers per week)
• After all what use is a Clinical Lead
  Podiatrist if he cant provide confidence?

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How it can feel

• The worst thing was the lack of support from
  the diabetes team - before, during after the
  event
• I still feel it (but less now) when I or our
  Podiatrists have to make a call on a complex
  ulcer i.e. every week

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HPC and how it impacts

• Patient can now complain to HPC directly
• Does not have to go through the established
  channels (NHS complaints procedure local
  procedures private practice)
• Do not know until letter arrives
• Given initially 4 weeks until hearing
• Result can be removal from HPC and may be the
  start of litigation process

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What can you do if its you?

• Who to talk to
• Support networks
• Dont ignore it wont go away

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Foot in Diabetes UK (FDUK)www.footindiabetes.org
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Toolkit for reducing risk
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Thanks for joining us

• Graham.Bowen_at_ports.nhs.uk
• Martin.fox_at_nhs.net

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