A rash decision

Company A is a private limited company commissioned by the local Primary Care Trust (PCT) to provide unscheduled/urgent care services to a population of 400,000. They are also responsible for an element of prison healthcare. They organise and manage the out-of-hours service and are responsible for a nurse led emergency walk-in centre staffed by a rota of employed nurse practitioners and prescribers supported by healthcare assistants.

Company A’s contract for services with the PCT contains insurance schedules which stipulate the types of cover, including medical malpractice, they are required to have in place together with levels of indemnity per claim and in the aggregate.

In arranging their insurances they took a business decision on the basis of cost and elected not to include the nurses within their corporate cover relying instead on their employees’ membership of professional associations to provide the necessary indemnities. They gave a warranty that the sessional GPs that they engaged and the nursing staff had appropriate personal indemnity arrangements in place.

On the Thursday evening of an Easter bank holiday weekend a seven year old girl was taken by her parents to the walk-in centre on referral from NHS Direct. She had been vomiting, was febrile complained of headache and appeared fractious. She was examined by a Nurse Practitioner who found no evidence of any rash, neck stiffness or photophobia. The nurse suggested to the parents that this was flu gave paracetamol and advice for worsening.

A further call from the parents to NHS Direct on the Saturday evening resulted in another appointment at the walk-in centre where the child was seen by another nurse. The examination revealed listlessness and high temperature. There was a mild blanching rash around the waistline which the nurse attributed to tightness of clothing. She agreed with the previous diagnosis of flu suggested an increased paracetamol dose and gave advice for worsening.

On the bank holiday Monday morning the parents obtained the out-of-hours service telephone number via their GP practice website and contacted them direct. The child was visited by an OOH GP who gave IM antibiotics and arranged immediate admission by ambulance. A diagnosis of meningitis was subsequently made but there were resultant profound injuries.

This is an unfortunate case. The speedy progression of meningitis makes timely diagnosis and treatment crucial. Signs and symptoms in the early stages are often difficult to differentiate from those of self-limiting illnesses and over-reliance on absence of a non-blanching rash may be misleading.

Following legal advice the parents initiated a claim in negligence against Company A alleging delayed diagnosis on the part of their employees. Preliminary estimates indicated an award of more than £1.5 million should the claimants succeed.

Company A have been unable to claim under the malpractice insurance they had arranged since they had warranted that indemnity for nurses was in place elsewhere. The nurses’ respective professional associations held, not unreasonably, that the employer was unquestionably vicariously liable for the actions of their staff in the course of their employment, that the company needed to have insurance themselves to cover the costs of clinical negligence claims arising from errors and omissions of staff.

Damages and legal costs will have to be met from Company A’s own resources.

Readers of the above scenario may wish to consider which was the rash decision.

MPS Risk Solutions publish claims scenarios as an educational aid to clients and to act as a risk management tool. The scenarios are based on issues arising from MPS Risk Solutions experience of insurance claims in several healthcare business areas. Facts have been altered to preserve confidentiality.