First workshop of series of medico-legal workshops.

 

The law relating to health and medicine is ever changing field. The area of medical professional negligence litigation can be argued as one of the most difficult and technical forms of personal injury litigation.

 

In this medico-legal series of workshops we will discuss all areas where doctors may be at risk of litigation or at risk of action taken by registering bodies.

 

There is anecdotal evidence that every doctor will experience a complaint against her or him at some stage of their career. Although, most of the complaints against doctors never see the Court or dismissed by Medical Boards, the process itself is extremely unpleasant experience.

 

The purpose of this series of workshops is to equip you with knowledge of how to minimise the risk of the complaints made against you. Also, we will discuss risk minimisation strategies related to investigations by Medicare and Medical Boards.

 

Each workshop is an interactive activity. You will need to read the material presented and offered to engage in discussion, ask questions and share your strategies of risk minimisation. Your input into discussions is always highly valued.

Practice points:

  • Every doctor will experience some litigation or complaints against him /her at some point of their career
  • Most of the complaints are preventable
  • Complaints may result in Court action or action by disciplinary body

 

 

Duty to provide information to the patient

 

One of the duties of a doctor is to provide information to patients. We start with this area because most of the complaints to Medical Board and significant part of litigation against doctors stems from alleged failure by the doctor to communicate effectively.

 

The Court case called Rogers v Whitaker is a benchmark on what information doctors should provide to the patients. The case concerned a woman who underwent elective eye surgery, which involved a risk during the operation that she may develop sympathetic ophthalmia, causing her to become blind. Although the risk of this happening was approximately 1 in 14000, surgeon did not provide information about the risk to the woman. He claimed that he did not believe he had to, and further, the patient had not specifically asked about this risk. He also claimed that he acted according to the Bolam principle and, hence, was not negligent. The Bolam principle says that if majority of doctors would do something in a certain way, the doctor who acted in the same way is not negligent. Importantly, this principle does not apply in Australia.

 

The example above is, of course, extreme case. More common scenarios related to not informing the patient are:

  • Not informing about possible side effects of medication
  • Not informing about possible outcomes of the procedures
  • Not informing about possible costs of treatments and/ or investigations
  • Not informing about some ingredients of medicines or vaccines that may be important for religious/cultural reasons e.g. pork derived products, blood derived products etc.

 

Doctor must provide information that is material to the patient’s decision making whether to go ahead with treatment or not.

Essentially, it is the responsibility of the doctor to determine what information is material. The following factors must be taken into account by the doctor:

 

  • The nature of the matter to be disclosed
  • The nature of the proposed procedure or treatment
  • The patient’s desire for information
  • The temperament and health of the patient (for instance, it may be the case that a more seriously ill patient may consider the risk less significant compared to non-seriously ill patient.
  • The general surrounding circumstances (including alternative pathways, financial burden, emergency, necessity, court authority)

 

 

The doctor may withhold information from the patient if the doctor believes providing the information to the patient may seriously harm their health and welfare.

 

 

Practice points:

  • The fact that majority of doctors do something in a certain way is not a defence.
  • Doctor must provide information if a reasonable person in patient’s position would have considered the risk significant.
  • Doctor ought to know to have known patient X would have considered it significant in the circumstances.

 

 

 

 

Please, complete the activities below:

Please, think of a situation that occur or may occur in your practice where you would withhold information from the patient.Example: not informing about side effects of medications when there is an emergency.
Please, think of some situations where what you have read so far applies. Examples:  prescribing procedure, referrals, offering patients a procedure or examination.   

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

What happens when patient claims that a doctor has failed to inform her / him about material risks?

 

In cases where a doctor has failed to inform their patient about material risks, the patient must establish the following requirements:

 

  • The information is material
  • The doctor failed to take reasonable care by not providing material information
  • The patient must prove they sustained an injury / loss
  • Causation must be proved (this is the most difficult: the patient must prove the doctor’s breach in failing to inform, caused their injury / loss)
  • It must be proved the injury / loss was foreseeable result of the doctor’s breach.

 

 

 

 

 

 

 

Doctor’s defences and risk minimisation

 

 

Alternatively, the doctor may argue they did, in fact, disclose to the patient the risk in question. This defence is best enhanced if the doctor can produce a comprehensive consent form or notes made by doctor at the time of consultation

 

 

Claim Defence Strength of defence
Doctor did not disclose material information In cases brought by claimants alleging wrongful non-disclosure, the main defence for doctors is that they were not in breach of their duty to the patient to take reasonable care. In other words, “I didn’t have to…” There will be always an expert witness from the other side that would say: “Yes, you did have to.”
Doctor did not disclose material information The doctor may argue they did, in fact, disclose to the patient the risk in question.“I did disclose all I needed…”  This defence is best enhanced if the doctor can produce a comprehensive consent form or notes made by doctor at the time of consultation.! The tendency for provision of information to patients has to be evident. In other words, it is best if doctor can produce 100s of notes showing that this is his / her normal practice.
Doctor did not disclose material information The defence that the risk was not material could be raised. Example: the risk was so slight it was not justifiable to mention it to the patient. If the risk is so rare, or little is known about it, and most of the doctors in the particular field of practice are not familiar with it, the doctor may have a defence.
Doctor did not disclose material information in an emergency In cases of emergency, necessity (where patient lacks mental competency) or under court/ legislative authority, a doctor need not provide information of a risk, even if it is acknowledged as material for the patient. Court / legislative authority overrides need to provide information.Emergency and lack of mental capacity overrides such need but can be argued by patient later that there was no emergency (!)
Doctor did not disclose material information Other possible defence is that patient did not suffer any loss / injury due to doctor’s action. Doctor will not dispute the fact of non-disclosure and that the injury occurred. However, a Doctor will have to prove that injury has happened not because of his / her wrongful non-disclosure.

 

 

Practice points:

  • Keep good notes. Document any advice given to patients
  • Be consistent with how you document advice given to patient
  • If in 9 cases out of 10 advice is documented, the Court is likely to believe you that you gave the all necessary advice even if it was not documented on that particular occasion.

Risk minimisation strategies.

 

Although, here is no ‘silver bullet’ in prevention of complaints against you, you can:

 

  • Be friendly, ask patients to express their opinion about proposed management plan. This will be a source of information for you about what patient wants / needs to know.
  • Keep detailed notes all the time. Document important advice given to patients.

 

 

Case studies for discussion.

 

Case study 1

 

The case study below is not directly applicable to General Practice. However, it illustrates the process of the Court’s decision making about failure to inform. This case is about duty of care and causation. Sometimes, there is a breach of duty, but the injury is not caused by that breach (discussed before).

 

Case history

The patient underwent spinal surgery for an intervertebral lumbar disc protrusion. Post-operatively, the patient had bilateral femoral neuropraxia, which was caused by him lying prone for an extended period during the surgery. The patient brought a claim in the Supreme Court of NSW and alleged that the surgeon failed to warn him of the following two material risks:

  1. the 5% risk of permanent paralysis resulting from damage to his spinal nerves (this did not eventuate), and
  2. the risk of temporary damage to the nerves in his thighs (this eventuated).

Medico-legal issues

At trial1, the patient argued that he would not have undergone the surgery if he had been warned of either risk. The trial judge, Harrison SCJ, rejected this submission. Harrison SCJ, held that the surgeon breached his duty of care to the patient by failing to warn of the material risk of bilateral femoral neuropraxia. However, Harrison SCJ found that the surgeon’s negligence was not the “legal cause” of the patient’s nerve damage because the patient did not establish that he would have declined the surgery if warned of that risk. Relevantly, his Honour did not make a finding of whether the risk of paralysis was a material risk, which the surgeon was under a duty to disclose to the patient, nor whether he would have declined the operation if warned of that risk – as this risk did not materialise, he treated it as irrelevant. The trial judge found in favour of the surgeon.

The patient appealed against the Supreme Court decision to the NSW Court of Appeal.2 In so doing, the patient argued that Harrison SCJ erred in holding that the surgeon’s failure to warn of the risk of paralysis could not be the legal cause of his neuropraxia when, if he had been warned of paralysis, he would not have had the surgery. The Court of Appeal proceeded on the assumption that the patient would not have undergone the surgery if he had been warned of the risk of paralysis. The majority considered that a causal relationship needed to exist between the surgeon’s breach of duty (ie, the failure to warn of the risk of paralysis) and the harm the patient actually suffered. The majority determined that risk of neuropraxia and the risk of paralysis were different and unrelated – the risk of paralysis was related to surgical skill and care whereas the risk of neuropraxia was related to necessary intraoperative patient positioning. The majority of the Court of Appeal therefore held that it was not appropriate for the surgeon to be held liable for the neuropraxia on the basis of negligence relating to a separate risk which had not materialised. The NSW Court of Appeal, by majority, dismissed the appeal.

 

 

 

Case study 2

 

Patient presented at General Practice with severe insomnia. Doctor prescribed medication that makes patients drowsy.

Patient happened to be a long haul truck driver. He suffers motor vehicle accident the following night.

The doctor’s notes state: “Advised re: medication causing drowsiness, med cert for 3 days.”

 

Is there any chance of claim against the doctor for failure to inform patient about material risks of taking the medication?

 

 

Case study 3

 

Patient presented to a doctor at General practice with severe recurrent headache. Doctor issued the patient with the referral letter to neurologist. Patient did not attend the specialist appointment. She was diagnosed with advanced lesion in her brain12 months later.

She claims that should doctor explained to her the seriousness of the referral, she would go and see the neurologist.

Doctor’s notes state: “Referral to neuro outpatients given. Does not want to go. Advised re possible cancer.”

 

Do you think the doctor is “safe” in this situation?

 

(Please, disregard the fact that Practice should have followed this referral as per “significant referral” procedure)

 

Valuable resources of medico-legal information:

Quarterly magazine by MDA http://www.defenceupdate.mdanational.com.au/

Avant insurance publications http://www.avant.org.au/Resources/

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