823
colleagues to support measures to curb smoking was laughed off the floor.4 We no longer keep myocardial infarction patients heavily sedated and in bed for several weeks, and we suspect that removal of dietary fibre, which had been the treatment for diverticular disease, is in fact its cause. The benefit of annual check-up, hitherto unquestioned in the United States, is now thought to be limited. The peer review offence is deviation per se, so it is no defence to show that an innovative treatment worked better than a standard one. Yet we are ethically and, in New York state, legally obliged to use our best judgment.5,6 In the absence of harm there is no cause of action for malpractice, while adherence to accepted medical practice which was not the doctor’s best judgment has been expressly rejected as a malpractice defence.6,7 Compelled adherence to authority, to dogma, is stultifying and profoundly deprofessionalising. Intellectual coercion is medieval and scholastic;8 gone are the Renaissance and the Enlightenment. Dissent becomes heresy; reputation, career, and livelihood go to the stake. At a time when millions of people have broken their shackles the medical profession is snapping them on. 17 Main Street, Sayville, NY 11782, USA 1.
Capsticks Solicitors, General Accident Building, 77/83 Upper Richmond Road,
BRIAN CAPSTICK PETER EDWARDS
London SW15 2TT, UK
Public health
reporting year
SIR,-Dr Dunlop (Aug 31, p 584) denigrates the use of the fiscal year for public health purposes in the UK. This is puzzling because directors of are
striving
public health and the National Health Service as a whole to strengthen the link between health and financial
information in their efforts
to
make the best
use
of funds. What is
important is for the same time period to be used for the fiscal and ROBERT CARLEN
Agramonte A. The inside story of a great medical discovery. Sci Monthly 1915 (Dec); I, 209-37. Reprinted in: Yellow fever studies: public health in America (New York:
Amo Press, Inc, 1977). 2. Anon. The New Encyclopedia Britannica, 15th ed, 1986. X: 627-28. 3. Crile G Jr. Surgery, in the days of controversy. JAMA 1989; 262: 256-58. 4. New York Times, July 19, 1990: D19. 5. Pike v Honsinger, 155 NY 201, 49 NE 760 (1898). 6. Toth v Community Hospital at Glen Cove 22 NY 2d 255; 292 NYS 2d 440 (1968). 7. Wickline v State of California, 239 Cal Rptr 810 (Cal App 2Dist 1986). 8. Osler W. Harvey and his discovery. In: The collected writings of Sir William Osler. Birmingham, Alabama: Classics of Medicine Library, 1985; see JAMA 1987; 258: 1522.
Defensive obstetric
midwives choose to "wait and see" when a trace is abnormal. If such a decision is not recorded, it will appear in retrospect as a negligent failure to respond. It is therefore necessary to record wait and see decisions, as well as decisions to intervene, as evidence that attention was being paid to the issue. It is increasingly difficult for obstetricians to resist the pressure for greater intervention, and a few measures of this type would go some way to reducing the pressure from litigation.
practice
SiR,—The obstetrician’s belief, reported by Dr Ennis and Dr Orr (Sept 7, p 616), that carrying out tests of uncertain reliability is somehow a shield against litigation is at odds with the experience of
legal team. major claims arise from the allegation that some abnormality in a test for fetal wellbeing was not acted upon in time. Where a test is inherently unreliable, or only reveals part of the clinical picture, there is a greater likelihood that no immediate action our
Most
will be taken on the basis of an aberration and thus a greater risk that the plaintiff, with the benefit of hindsight, will be able to seize on some adverse or merely equivocal result as the basis for a claim. The position is well illustrated by cardiotocography traces; far from being a shield against litigation these traces may well be a sword turned against the doctor. The volume of litigation suggests the following guidelines for electronic fetal heart monitoring
(EFHM): (1) Ascertain the reliability of results. One reason why EFHM has become a cause of litigation is the lack of consensus in the medical profession as to how far one may rely on its results as an indication of fetal distress. There is a great need for a prospective study to assess the reliability of EFHM as an indication of a poor outcome, whether or not in conjunction with fetal scalp blood sampling. (2) Train people in its use. Experts who deal with EFHM-related claims see many traces where the abnormality is both obvious and gross, yet no-one intervened. The explanation is sometimes that no-one believed the results (see above) and sometimes that no-one understood them. Methodical training with a clear message would avoid many instances of this second type. (3) Limit use to cases where EFHM is positively indicated and properly supported. There may be a case for limiting the use of EFHM to those instances where it is positively indicated and can be properly supported by trained staff, the availability of consultant advice, and facilities for fetal scalp blood sampling and for doing emergency caesarean sections. There is little benefit medically in the ritual use of equipment in cases where it is not likely to be needed and where facilities for interpreting the results and acting on them if a crisis develops are lacking. Legally, such a ritual is no benefit at all. (4) Record decisions to "wait and see". Because of the high proportion of false positives from EFHM, many doctors and
health information on which managers make their local decisions. The most practical way of achieving this is for the NHS to change to the fiscal year to fit in with most of the rest of the public sector. A well-designed information system should easily be able to provide figures for either time period, to please everyone. Dunlop’s objections in respect of cross-national studies would be more persuasive if he had cited examples, particularly in view of the imprecision of the data, where comparisons across fiscal and calendar years have led to different conclusions. Department of Public Health Medicine, North Bedfordshire Health Authority, Bedford MK40 2NU, UK
PAUL A. KITCHENER GARY JACKSON
Incidents in intensive
care
SIR,-A "critical incident" is just another name for an accident, and the underlying principles must be the same whether the accident involves an aircraft, a nuclear reactor, or an intensive-care unit. All accidents are due to human error, whether it is the designer of the aircraft, the manufacturer, or the pilot. Procedures are devised to ensure safe operation provided that the level of human performance exceeds an easily achievable level. There is an optimum state of arousal (ie, failure is more likely when the operator is either drowsy or in a state of panic) that is reduced as the task gets harder. The pilot generally gets the blame since there is only one of him and he is often dead, whereas the manufacturers are numerous and can afford the best lawyers. Take, for example, a landing with the undercarriage up. Here pilots are divided into two groups, those who have landed with their aircraft’s undercarriage up and those who have not done so, yet. In a jumbo jet it cannot be done; the undercarriage comes out automatically or the aircraft refuses to land. Reading the paper by Dr Wright and colleagues (Sept 14, p 676) I was struck that two of the five incidents discussed involved three-way taps. If these were of the small disposable variety, I think it fair to point out that they can be hard to read, and I would hate to think that a doctor carries a load of guilt or has a blighted career because of one of those things. Their design has not been brought to a level of perfection. After an accident there is always the feeling that with a little more care or better training it could have been avoided. I think this is wrong: we should blame the equipment. Could the equipment have been designed so that this accident would have been impossible? Nearly always the answer is "yes". Cherry Orchard, Marlow Common, Buckinghamshire SL7 2QP, UK
Use of cost-benefit analysis in material
BRENNIG
JAMES
promotional
SiR,—The question you raise in your Aug 17 editorial about the legality of pharmaceutical companies using cost-benefit data in their promotional material is intriguing and will no doubt be debated by others well versed in the relevant national and European Community legislation.
colleagues to support measures to curb smoking was laughed off the floor.4 We no longer keep myocardial infarction patients heavily sedated and in bed for several weeks, and we suspect that removal of dietary fibre, which had been the treatment for diverticular disease, is in fact its cause. The benefit of annual check-up, hitherto unquestioned in the United States, is now thought to be limited. The peer review offence is deviation per se, so it is no defence to show that an innovative treatment worked better than a standard one. Yet we are ethically and, in New York state, legally obliged to use our best judgment.5,6 In the absence of harm there is no cause of action for malpractice, while adherence to accepted medical practice which was not the doctor’s best judgment has been expressly rejected as a malpractice defence.6,7 Compelled adherence to authority, to dogma, is stultifying and profoundly deprofessionalising. Intellectual coercion is medieval and scholastic;8 gone are the Renaissance and the Enlightenment. Dissent becomes heresy; reputation, career, and livelihood go to the stake. At a time when millions of people have broken their shackles the medical profession is snapping them on. 17 Main Street, Sayville, NY 11782, USA 1.
Capsticks Solicitors, General Accident Building, 77/83 Upper Richmond Road,
BRIAN CAPSTICK PETER EDWARDS
London SW15 2TT, UK
Public health
reporting year
SIR,-Dr Dunlop (Aug 31, p 584) denigrates the use of the fiscal year for public health purposes in the UK. This is puzzling because directors of are
striving
public health and the National Health Service as a whole to strengthen the link between health and financial
information in their efforts
to
make the best
use
of funds. What is
important is for the same time period to be used for the fiscal and ROBERT CARLEN
Agramonte A. The inside story of a great medical discovery. Sci Monthly 1915 (Dec); I, 209-37. Reprinted in: Yellow fever studies: public health in America (New York:
Amo Press, Inc, 1977). 2. Anon. The New Encyclopedia Britannica, 15th ed, 1986. X: 627-28. 3. Crile G Jr. Surgery, in the days of controversy. JAMA 1989; 262: 256-58. 4. New York Times, July 19, 1990: D19. 5. Pike v Honsinger, 155 NY 201, 49 NE 760 (1898). 6. Toth v Community Hospital at Glen Cove 22 NY 2d 255; 292 NYS 2d 440 (1968). 7. Wickline v State of California, 239 Cal Rptr 810 (Cal App 2Dist 1986). 8. Osler W. Harvey and his discovery. In: The collected writings of Sir William Osler. Birmingham, Alabama: Classics of Medicine Library, 1985; see JAMA 1987; 258: 1522.
Defensive obstetric
midwives choose to "wait and see" when a trace is abnormal. If such a decision is not recorded, it will appear in retrospect as a negligent failure to respond. It is therefore necessary to record wait and see decisions, as well as decisions to intervene, as evidence that attention was being paid to the issue. It is increasingly difficult for obstetricians to resist the pressure for greater intervention, and a few measures of this type would go some way to reducing the pressure from litigation.
practice
SiR,—The obstetrician’s belief, reported by Dr Ennis and Dr Orr (Sept 7, p 616), that carrying out tests of uncertain reliability is somehow a shield against litigation is at odds with the experience of
legal team. major claims arise from the allegation that some abnormality in a test for fetal wellbeing was not acted upon in time. Where a test is inherently unreliable, or only reveals part of the clinical picture, there is a greater likelihood that no immediate action our
Most
will be taken on the basis of an aberration and thus a greater risk that the plaintiff, with the benefit of hindsight, will be able to seize on some adverse or merely equivocal result as the basis for a claim. The position is well illustrated by cardiotocography traces; far from being a shield against litigation these traces may well be a sword turned against the doctor. The volume of litigation suggests the following guidelines for electronic fetal heart monitoring
(EFHM): (1) Ascertain the reliability of results. One reason why EFHM has become a cause of litigation is the lack of consensus in the medical profession as to how far one may rely on its results as an indication of fetal distress. There is a great need for a prospective study to assess the reliability of EFHM as an indication of a poor outcome, whether or not in conjunction with fetal scalp blood sampling. (2) Train people in its use. Experts who deal with EFHM-related claims see many traces where the abnormality is both obvious and gross, yet no-one intervened. The explanation is sometimes that no-one believed the results (see above) and sometimes that no-one understood them. Methodical training with a clear message would avoid many instances of this second type. (3) Limit use to cases where EFHM is positively indicated and properly supported. There may be a case for limiting the use of EFHM to those instances where it is positively indicated and can be properly supported by trained staff, the availability of consultant advice, and facilities for fetal scalp blood sampling and for doing emergency caesarean sections. There is little benefit medically in the ritual use of equipment in cases where it is not likely to be needed and where facilities for interpreting the results and acting on them if a crisis develops are lacking. Legally, such a ritual is no benefit at all. (4) Record decisions to "wait and see". Because of the high proportion of false positives from EFHM, many doctors and
health information on which managers make their local decisions. The most practical way of achieving this is for the NHS to change to the fiscal year to fit in with most of the rest of the public sector. A well-designed information system should easily be able to provide figures for either time period, to please everyone. Dunlop’s objections in respect of cross-national studies would be more persuasive if he had cited examples, particularly in view of the imprecision of the data, where comparisons across fiscal and calendar years have led to different conclusions. Department of Public Health Medicine, North Bedfordshire Health Authority, Bedford MK40 2NU, UK
PAUL A. KITCHENER GARY JACKSON
Incidents in intensive
care
SIR,-A "critical incident" is just another name for an accident, and the underlying principles must be the same whether the accident involves an aircraft, a nuclear reactor, or an intensive-care unit. All accidents are due to human error, whether it is the designer of the aircraft, the manufacturer, or the pilot. Procedures are devised to ensure safe operation provided that the level of human performance exceeds an easily achievable level. There is an optimum state of arousal (ie, failure is more likely when the operator is either drowsy or in a state of panic) that is reduced as the task gets harder. The pilot generally gets the blame since there is only one of him and he is often dead, whereas the manufacturers are numerous and can afford the best lawyers. Take, for example, a landing with the undercarriage up. Here pilots are divided into two groups, those who have landed with their aircraft’s undercarriage up and those who have not done so, yet. In a jumbo jet it cannot be done; the undercarriage comes out automatically or the aircraft refuses to land. Reading the paper by Dr Wright and colleagues (Sept 14, p 676) I was struck that two of the five incidents discussed involved three-way taps. If these were of the small disposable variety, I think it fair to point out that they can be hard to read, and I would hate to think that a doctor carries a load of guilt or has a blighted career because of one of those things. Their design has not been brought to a level of perfection. After an accident there is always the feeling that with a little more care or better training it could have been avoided. I think this is wrong: we should blame the equipment. Could the equipment have been designed so that this accident would have been impossible? Nearly always the answer is "yes". Cherry Orchard, Marlow Common, Buckinghamshire SL7 2QP, UK
Use of cost-benefit analysis in material
BRENNIG
JAMES
promotional
SiR,—The question you raise in your Aug 17 editorial about the legality of pharmaceutical companies using cost-benefit data in their promotional material is intriguing and will no doubt be debated by others well versed in the relevant national and European Community legislation.
