Two bites of the apple- limitation in professional negligence cases
You may have seen a growing number of advertising campaigns for “virtual” GP applications (“apps”) on your daily commute. These apps offer patients the chance to arrange a video or telephone appointment with a GP. The patient can then book a face-to-face appointment if necessary. Some of the providers offer a free service because it qualifies for NHS funding. These apps bring about benefits but also risks and unanswered questions around liability and medical negligence.
The main benefit of virtual practices is their convenience. You can arrange a virtual appointment in the same way as you might order a cab. All that is required is a smartphone. Another benefit is transparency. The applications keep an audio recording of the consultation and clinical notes are easily accessible giving patients the flexibility to review these from their smartphone.
With convenience, however, comes a shallower doctor-patient relationship and new risks for patients and practitioners alike. Virtual practices do not allow for building a rapport between patient and doctor. That lack of rapport can increase the risk of patients not communicating their symptoms to their doctors.
To an extent, the apps try to get around this problem with clever coding. If you log into one popular app, you are greeted with the question “Hello, what do you want to talk about today?” The user types in their symptoms which then appears to trigger the app’s triage system, which relies on artificial intelligence and uses coding to identify what is wrong with the patient. Following triage, the app will then tell the user if they should book a virtual appointment with a GP. It is unclear whether the chat with the triage robot is retained and forms part of the clinical notes and, crucially, whether the chat transcript is also provided to the GP in advance of the virtual consultation.
Even the best coding cannot get around the limits of virtual practice. For example, it is impossible to take basic observations, such as measuring blood pressure or pulse. These observations often provide crucial information about a patient’s condition and enable physiological deterioration to be monitored.
Likewise, virtual practices may lead to serious conditions going undiagnosed. The complexity of assessing back pain is a good example. Back pain is one of the most reported complaints by patients to their GP. Back pain could be anything from benign muscle strain to cauda equina syndrome, a medical emergency that can lead to paraplegia.
A patient could easily confuse one for the other. As a result, GPs must always be alert to spotting “the red flags” of cauda equina. In traditional practices, failure or delay in diagnosis of cauda equina syndrome is one of the top five errors that lead to the most expensive GP claims in negligence.
One has to ask how healthcare apps will affect the liability of GPs when dealing with complex conditions such as sepsis (the patient may have flu-like symptoms but no basic observations are taken) or cauda equina syndrome and the misdiagnosis of such conditions. The triage chat transcript and the audio recording of the consultation may provide crucial information about liability, however, it may also be unclear.
In cases of medical negligence involving virtual GP apps, questions about the law that could be left unanswered include:
These are the kinds of questions that make this area of law and technology both complex and fascinating. The question of who will be accountable when a mistake happens has yet to be settled in the courts because these apps are still very new. A virtual mistake will, however, be all too real to the patient who suffers it.
If you have been affected by the issues discussed, please contact a member of our Medical Negligence team.
Eurydice Cote is an Associate in the Clinical Negligence and Personal Injury department and an experienced specialist in clinical negligence claims of all types, often acting for people who have sustained catastrophic and life changing injuries.
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