UK: Legal Issues Arising From Claims Concerning Negligence In Relation To The Diagnosis Of Renal Failure

High blood pressure (hypertension) is extremely common in western societies. In England alone approximately 34% of women and 37% of men have high blood pressure. Hypertension, on its own, is the second most common cause of end-stage renal failure (next to diabetes) and it is customary for all types of chronic kidney disease to eventually cause hypertension. As such, routine blood pressure management forms an integral part of the prevention and detection of these conditions and clinical negligence claims alleging a delay in the diagnosis of progressive renal failure are becoming more widespread.

This article considers trends in the legal issues associated with these claims.

Complaints often concern the adequacy of blood pressure control and/or a failure to monitor renal function and/or a failure to act on results.

The British Hypertension Society (BHS) Guidelines advocate a minimum of three blood pressure readings spread out over some months before considering a diagnosis of hypertension and it is recommended that once a diagnosis of hypertension is made (after several elevated readings) routine investigations should include urine analysis (Dipstix) and the measurement of serum electrolyte and urea (U&Es) or creatinine concentrations. Analysis of claims relating to a failure to diagnose and/or monitor renal function suggests that claimant lawyers frequently rely on a failure to act on a single elevated blood pressure result as evidence of negligence often at the same time overlooking subsequent entirely normal readings. In order to defend allegations of this nature it will be necessary to demonstrate sufficient attempts were made to follow up a potentially 'rogue' result otherwise a practitioner is likely to be vulnerable.

There is some evidence from the late 1990s that GPs omitted to carry out urinalysis in newly hypertensive patients, however, notwithstanding this, the general consensus amongst expert opinion is this was not an acceptable practice (the guidance has been in operation since 1993) and claims of this nature will be difficult to defend. When considering what constitutes an abnormal result it is important not to apply today's standards to the past and what may be considered an abnormal creatinine level now may not unreasonably have been considered essentially normal several years ago. Furthermore, the normal range for serum creatinine is variably quoted depending on the reporting laboratory and elevated creatinine levels do not necessarily mandate referral to a renal physician provided there is evidence of recurrent follow-up.

Recurring allegations centre around the instigation and/or adjustment of treatment in order to reduce risk factors and delays in arranging referral for specialist opinion.

For patients who have high blood pressure and kidney disease ACE inhibitor (ACEi) and angiotensin II receptor blocker (ARB) drugs lower blood pressure and protect the kidneys from further damage. As such, allegations of negligence may concern an alleged failure or delay in the instigation of this treatment. Whilst ACEi and ARB drugs were being widely used to treat hypertension by the mid 1980s (particularly ACEi) they were recommended by the BHS as 'second line' agents (after thiazide diuretics and beta blockers) until the introduction of the 'AB/CD' algorithm in 2004. Consequently, it may be possible to defend these allegations prior to this date. ACEi can rarely cause serum creatinine to rise after starting or increasing dosage in some patients and, therefore, the British National Formulary recommend that U&Es are measured before and after starting treatment and at periodic intervals thereafter. A failure to adhere to this guidance is likely to constitute a breach of duty. Further, it is now accepted that the prescription of non-steriodal anti-inflammatory drugs (NSAIDS), such as ibuprofen, may worsen renal function and, accordingly, their prescription is contraindicated in some patients with kidney disease. This has not always been the case and any allegations of negligence relating to the prescription of NSAIDS should be analysed in the context of the medical knowledge available at the time and without the benefit of hindsight.

Patients tend to develop symptoms of renal failure only when the disease is relatively far advanced and patients will often seek legal redress for what they feel must have been a diagnostic delay resulting in recourse to a lifetime on dialysis or transplantation. Kidney disease is rarely cured by medication and, therefore, the chain of causation may be weak and it may be possible to restrict quantum.

Although there is evidence that good blood pressure control with ACEi can retard the progression of renal failure, it is important to determine if earlier intervention would have avoided the development of renal failure or if earlier diagnosis could have led to measures to slow the progression of renal disease or prepare patients for renal replacement therapy. This is often difficult to predict with certainty. There is a tendency for claimant lawyers not to investigate causation by obtaining independent expert evidence and to assume that the instigation of effective therapy at an earlier stage would have avoided the development of renal failure altogether. The allegations of causation are often poorly particularised and sometimes demonstrate a careless analysis of the medical records. For instance, any subsequent normal serum creatinine and urinalysis results will act to undermine any assertion that renal function would have been abnormal before this time insofar that renal function rarely improves with the passage of time. In addition, ACEi may have been instigated indirectly to control hypertension rather than as a direct response to renal failure and, as such, its effect on preserving renal function may have been overlooked. It is, therefore, crucial to obtain expert opinion on causation since more often than not it is possible to demonstrate that a diagnostic delay has exacerbated the onset of a patient's requirement for renal replacement therapy rather than having actually caused it. This has significant implications for the assessment of quantum insofar that in this instance it will be possible to argue that the mainstay of any claim for special damages would have been incurred in any event (albeit at a later stage).

If a claimant can demonstrate that, but for the alleged negligence, he would have avoided the development of renal failure, then his claim is likely to sound in a significant claim for damages.

Whilst for the majority of the time prior to the need for renal replacement therapy patients will remain relatively well from a renal perspective, once renal function has fallen below 20 ml/min it is generally accepted that they will become symptomatic. Beyond this point claims for loss of earnings and care/assistance are likely to succeed. Patients undergoing dialysis require haemodialysis three times a week in a hospital or satellite unit or, potentially, by home dialysis. Home treatment may entail a claim for accommodation to enable the installation of a clean room or the costs of treatment in the private sector. Where transplantation is anticipated, given the uncertainty as to the availability of donor grafts, compensation for an extended period of dialysis will be sought in order to take account of this. The median survival of living and deceased donor grafts is approximately 20-25 years and 14 years respectively. Therefore, the costs of more than one transplantation in a claimant's lifetime (or further recourse to dialysis) may be sought. In this instance it will be important to consider if a claimant has any comorbidities, since is maybe arguable that by the time a replacement transplant is required the claimant's anticipated life expectancy has been exceeded.

Conclusion

In conclusion, it will be necessary to obtain expert evidence early on to investigate both breach of duty and causation. As a number of these cases are defensible (or partly defensible) on causation (i.e. expert evidence suggests the claimant will establish an exacerbation of his/ her condition rather than causation in full), consideration should be given to an early Part 36 offer in order to limit litigation costs.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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