The MDU supported a GP member with an allegation of failing to review a medication's expiry date.

The scene

A GP MDU member in a minor surgery session performed a total excision of the right hallux nail, followed by phenolisation. The GP discussed the procedure with the patient and informed them about the risk of the nail growing back despite using phenol. The patient consented accordingly and agreed to the procedure.

The patient ended up having five treatments on both feet over a period of three years, as each time the nails grew back. At the last procedure, when the patient was booked to have the left hallux nail removed, the nurse in attendance informed the MDU member that the bottle of phenol was quite old, and that she could not remember when it was ordered. The MDU member and the nurse checked the bottle, which did not have an expiry date. Upon learning this, the patient declined to have the procedure.

The claim

The MDU member received a claim alleging a negligent failure to review the phenol medication before starting treatment, which was ineffective because the medication was out of date. If this had not been the case, the patient would have avoided numerous GP attendances needed to address the fact that the nails kept re-growing. The claim also alleged that the patient was left with ingrowing toenails on both toes, which had caused a great deal of pain, and was unable to wear shoes and had to re-dress the toes every day.

MDU response

Responding to the claim on behalf of the member, the MDU obtained an independent GP expert report on breach of duty. The expert's opinion was that the MDU member's experience reflected a level to be expected for a reasonably competent GP undertaking treatment for ingrowing toenails.

The MDU also engaged an independent dermatologist expert to report on causation, particularly on the issue of out-of-date phenol. This expert's opinion was that phenol is highly destructive of biological tissue and there is no evidence its potency deteriorates with time. They would therefore not support a claim for negligence based on using 'out-of-date' phenol, as there is no relevant 'use by' date for it, or its solutions.

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It was also the expert's opinion that partial or complete destruction of the nail matrix by the application of 89% liquefied phenol is a well-established procedure for the treatment of ingrowing and dystrophic toenails. It is generally a reliable procedure, but in common with other interventions for ingrowing and dystrophic nails it may not be 100% successful, and may need to be repeated if residual spicules of nail regrow after the procedure.

The expert explained that liquefied phenol at a strength of 89% is not considered a medicinal product. It is specifically used to destroy nail matrix tissue in the treatment of ingrowing toenails. It is stable over time, and although it may develop a slight pink colour on exposure to light or air, this doesn't affect its potency. There is therefore no rationale for giving an expiry date for liquefied phenol, and as such, liquefied phenol solutions do not have one.

Based on these findings, the MDU denied liability on behalf of the GP member, and the claim was discontinued.

This page was correct at publication on 06/03/2020. Any guidance is intended as general guidance for members only. If you are a member and need specific advice relating to your own circumstances, please contact one of our advisers.