Post on 21-Aug-2015
transcript
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Liability in the
Operating Theatre
KATE FISHER
LAWYER
MEDICAL LAW
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Disclaimer
The information provided by Slater and
Gordon in this presentation is general in
nature and should not be relied upon as
legal advice.
Legal advice should be sought for specific
matters.
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The risk of being sued
Medical professionals’ perception of
their medico-legal risk is much greater
than the reality. There is the belief that
‘everyone will be sued once’.
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In Victoria: The Facts and Figures
• 55 million plus Medicare services per year
• 1.3 million plus hospital admissions per year
• 100,000s of health services provided per year
• 1,000s of avoidable adverse events
• On average, 200 – 250 new cases arise in Victoria per year
• About 50% of cases are against public health services
• Significant limitations affect the rights of individuals to bring a medical negligence claim in Victoria.
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What is negligence
• Most medical claims are made under the tort of negligence.
While some are for breach of contract, the practical differences
are minor.
• There are three elements of the tort of negligence.
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What is negligence
In order to prove a claim in medical negligence it is necessary to demonstrate the following:
• Duty – the plaintiff must prove that the medical professional owed them a duty of care. The standard of care expected is that of a reasonably competent practitioner of that specialty.
• Breach of duty – the plaintiff must prove that the standard of care they received fell below the standard of a reasonable practitioner and that the breach of duty caused the injury (Causation).
• Damage – the plaintiff must show that they have suffered sufficient damage related to the negligence to justify making a claim.
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Duty of Care
• You may have heard of the ‘neighbour’
principle?
• That is, the principle that a person must
take reasonable care to avoid acts or
omissions which would be likely to harm
any person they ought to reasonably
foresee as being so harmed.
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Duty of care may encompass . .
• Examination & Diagnosis (Dobler & Halvorson)
• Treatment (Dixon v Foote)
• Provision of information (Johnson v Biggs)
• Disclosure of adverse events (Wighton v Arnot)
• Follow up (Kite v Malycha)
• Responsibilities to third parties (BT v Oei)
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The nature of the duty. . .
• ‘The law imposes on a Medical Practitioner a duty to
exercise reasonable skill and care in the provision of
professional advice and treatment. That duty is a single
comprehensive duty covering all the ways in which a
doctor is called upon to exercise his skill and judgment;
it extends to the examination, diagnosis and treatment
of the patient and the provision of information in an
appropriate case. It is of course necessary to give
content to the duty in the given case.’ Rogers v Whitaker
at 483.
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Standard of care:
• Standards and special skills:
• Those who undertake activities requiring
special skills must not only exercise
reasonable care BUT ALSO meet the
standard of the ‘ordinary skilled person
exercising and professing to have that
special skill’.
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Standard of care:
• The question to be answered:
• What would a person professing that skill
be reasonably expected to do in response
to foreseeable risks?
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Who will decide the standard?
• Rogers v Whitaker
• Accepted that the standard of care is that
of the ordinary skilled person exercising
and professing to have that special skill
but that standard ‘is not determined solely
or even primarily by reference to practice
followed by a responsible body of medical
opinion.’
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Peer Professional Opinion
• A professional is not negligent in providing a professional service if
it is established that the professional acted in a manner that:
at the time the service was provided:
was widely accepted in Australia by a significant number of
respected practitioners in the field (peer professional
opinion)
as competent professional practice in the circumstances.
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Failure to Warn
• Health professionals are also required to inform a patient of risks
associated with their treatment. The Wrongs Act states that a doctor will
satisfy this duty if they “take reasonable care in giving that warning or other
information”.
• A patient should be warned about any complications associated with a
treatment that a reasonable patient would wish to know about (‘material
risks’). This does not mean that a patient needs to be warned about every
risk that may occur, just risks the patient would likely attach significance to.
If the patient requests more information this should be provided.
• The peer professional defence does not apply to failure to warn claims.
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Consent
When obtaining consent for treatment/ interventions, the medical
practitioner:
• Must warn of material risks.
• Objective test: a risk is material if a reasonable person in the
position of the patient would attach significance to it.
• Subjective test: would this particular patient attach significance to
the risk.
• Documentation in the record: It is important to detail all advice,
warnings, questions, answers and decisions. Take care with
reliance on pro-forma consents – detail additional notes.
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Vicarious Liability and Non-Delegable Duties
• Discussions regarding Vicarious Liability
and Non-Delegable Duties arise most
often where it is necessary to determine
the circumstances in which a hospital will
be held liable for the negligent acts of a
medical practitioner.
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Vicarious Liability and Non-Delegable Duties
• There is always the anterior question of
whether the hospital may be directly liable
for its own breaches of duty, for example
where a hospital permits a medical
practitioner in training to perform a
procedure that was clearly beyond his/her
capacity.
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Vicarious Liability
• Where the hospital is not itself negligent, it
may however be held to be ‘vicariously liable’
for the actions of its staff.
• The usual principle of vicarious liability
dictates that an employer, such as a hospital,
will be deemed responsible for negligent acts
of an employee undertaken in the course of
their employment.
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Non-Delegable Duties
• The liability of a hospital may extend beyond
vicarious liability to the negligent acts of a
person who is not an employee, in cases where
the hospital has a non-delegable duty.
• A hospital might have a non-delegable duty in
relation to the work carried out by independent
contractors. An example of this would be a
surgeon operating in a private capacity in a
public hospital setting.
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Non-Delegable Duties
• When assessing whether a relevant non-
delegable duty exists, attention must be paid to
the relationship between the patient and the
doctor or hospital.
• “It is always necessary to determine the content
or scope of the duty by reference to the task
undertaken by the defendant with reference to
the plaintiff.” Lepore v New South Wales
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Non-Delegable Duties
• Ellis v Wallsend Hospital.
• The court held that the hospital was not vicariously liable
for the surgeon’s negligence as the surgeon was not an
employee.
• Regarding non-delegable duty, the court held that the
patient had established a relationship with the surgeon
before entering the hospital; the hospital had not chosen
the surgeon for her and, therefore, no delegable duty
was found.
• The duty was the surgeon’s own.
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Non-Delegable Duties
• The case of Ellis is in contrast to the case of Albrighton
v Royal Prince Alfred Hospital.
• In Albrighton, on appeal, the relationship between the
patient and hospital was central and supported a
conclusion that the patient was in fact a patient of the
hospital. The hospital had undertaken to render to the
patient complete medical services through various
individuals, chosen by the hospital (not the patient).
• The hospital therefore owed the patient a duty which it
could not avoid by delegation to an independent
contractor, that is, there was a non-delegable duty at
play.
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Non-Delegable Duties
• The distinction between vicarious liability and non-
delegable duties is made clear through these two cases.
• The hospital in Ellis was a mere custodial institution,
whereat a contract between a private patient and
surgeon operating in a private capacity was effected.
• Contrast this to Albrighton, wherein the patient was
admitted directly to the hospital, which had undertaken
to provide all relevant services to the patient, and could
not delegate its duty of care.
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Causation
• In order to bring a claim in medical negligence, it must
be demonstrated that the breach of the duty of care
caused damage.
• s 52 of the Wrongs Act of Victoria provides that:
‘In determining liability for negligence, the plaintiff
always bears the burden of proving, on the balance of
probabilities, any fact relevant to the issue of
causation.’
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Causation
s51 of the Wrongs Act outlines what is required to prove causation:
s51(1) A determination that negligence caused particular harm
comprises the following elements:
(a) that the negligence was a necessary condition of the
occurrence of the harm (factual causation); and
(b) that it is appropriate for the scope for the negligent person’s
liability to extend to the harm so-caused (scope of liability).
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Causation
s51 (2):
In determining whether negligence, that cannot
be established as a necessary condition of the
occurrence of harm, should be taken to
establish factual causation (ie in the case of an
inherent risk of surgery eventuates), the court is
to consider whether or not and why
responsibility for the harm should be imposed
on the negligent party.
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Causation
s51 (3)If it is relevant to the determination of factual causation to
determine what the injured person would have done if the
negligent person had not been negligent, the matter is to be
determined subjectively in the light of all relevant circumstances.
s51(4) For the purpose of determining the scope of liability, the
court is to consider (amongst other relevant things) whether or not
and why responsibility for the harm should be imposed on the
negligent party.
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What is a significant injury
The definition of a significant injury for a medical negligence claim is:
• A permanent impairment of greater than 5 percent of the whole
body pursuant to the AMA guides; OR
• A psychiatric impairment greater than 10 percent of the whole
body pursuant to the guides.
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What is a significant injury
The significant injury definition also includes:
• Loss of a breast;
• Loss of a foetus;
• A psychological or psychiatric injury arising from the loss of a child
due to an injury to the mother or the foetus, or to the child before,
during or immediately after the birth.
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Compensation
• The primary purpose of a medical negligence claim is
to recover monies as compensation, to restore the
position of the plaintiff insofar as is possible.
• A claim cannot be usefully pursued unless there is in
fact a loss of some kind, whether for: economic loss,
including wage loss; medical treatment expenses; and
care costs (Special Damages); or, non-economic loss,
that is, for pain, suffering and emotional distress or
mental harm (General Damages).
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Types of damages that can be claimed
• Awards for Pain and Suffering (General Damages):
• the cap for damages for pain and suffering in Victoria is
approximately $518,300. This is the maximum available and
would apply to a case where a person sustained quadriplegia
as a result of negligence.
• Compensation for loss of earnings: the maximum amount available
per week is three times average weekly earnings
• Payments for ‘voluntary’ services: In catastrophic injury cases the
cost of care is often the highest portion of the claim for
compensation and can amount to millions of dollars for a young
child with severe disabilities
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Why people approach lawyers
Four main themes emerge in Medical Negligence claims:
• The need for an explanation: to know how the injury happened and
why.
• Concern with standards of care: to prevent similar incidents in the
future.
• Compensation: for actual losses, pain and suffering or to provide
care in the future for an injured person.
• Accountability: to encourage an organisation/individual to account
for their actions.
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Time Limits for Bringing a Claim
• In Victoria, an injured person has three years, from the date they
become aware that they have been injured as a result of negligence
or fault, and the injury is significant enough to justify bringing a
claim.
• If the person is an adult with a disability or a child, the time limit is 6
years.
• There have been cases that have held that the time limit ran from
the date a person’s GP advised them that the treatment they had
received from a surgeon was inadequate and in another case from
the date that an independent opinion had been obtained by
solicitors indicating that the treatment had been negligent.
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Time Limits for Bringing a Claim
• A claim cannot be brought more than 12 years after the date of the
injury occurred regardless of when the person became aware that
the injury occurred as a result of negligence.
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Settlement of Claims
• Medical negligence cases are not pursued without strong support
from independent doctors that the treatment was inadequate and
most medical indemnity insurers understand that the costs of
running a case should be avoided if there is reasonable evidence of
negligence.
• The Court now orders all claims to go through a compulsory
mediation process and there is a very high rate of settlement.
• In addition, most people bringing claims wish to avoid the significant
expense, risk and stress of proceeding to trial.
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Themes That Repeat
• Communication and listening are the biggest issues. In some form
or other they are the fault in the majority of medical negligence
claims.
• A failure to revisit the diagnosis. Example: the brain tumour client –
years of complaints of headaches, but no investigation.
• Failure to exclude the critical – the attitude that ‘most of the time it
isn’t a heart attack’ and therefore appropriate treatment not
pursued.
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Themes That Repeat
• Administrative failures, particularly the failure to follow up results or
not properly reviewing results. This is especially a problem in the
hospital system with results that arrive after the patient has been
discharged. Failures to review test results are also a common
theme.
• Systemic problems.
• Resourcing limitations and availability of staff.
• One of the biggest issues is continuity of care.
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Documentation
• Notes from allied health and nursing staff are almost invariably legible, systematic and provides the most detailed summary of the patient’s condition. This is in contrast to the majority of doctors’ record keeping.
• Record keeping can be an area of vulnerability for some nurses with very busy workloads.
• With recording, it is important to be clear about the presenting issue, the assessment of the issue, the planned intervention or what was provided, the reason for this and the outcome. Where relevant, reference to an organisation’s documentation policies and guidelines is useful.
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Other Avenues of Investigation
The Health Services Commissioner:
• Is appointed to investigate complaints about medical treatment and
conciliates many such complaints by way of meetings between
doctors and patients and letters of explanation.
• The Commissioner cannot order a health professional or hospital to
pay compensation but can resolve a dispute by way of an
agreement to pay medical expenses or an apology being offered
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Other Avenues of Investigation
Coroners Court:
• In the event of the death of a person as a result of negligence, the
Coroners Court may hold an inquiry into the death and require
doctors and other relevant witnesses to give evidence as to the
circumstances of the death.
• The Coroner can make recommendations as to how systems can
be changed to avoid the risk of injury or death to other people and
can take steps to ensure that the recommendations are put in
place .
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Other Avenues of Investigation
Australian Health Practitioners Regulation Authority (AHPRA):
• The Federal body that has now taken over from the various
medical practitioners’ boards which previously existed in each
state to discipline doctors for misconduct.
• This body now also regulates nurses, allied health workers
(including social workers), psychologists and pharmacists.
• AHPRA has the power to deregister doctors, force them to attend
counselling and can impose other restrictions on their ability to
practice.
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Apologies
• Importantly, an apology has never been a legal admission of guilt
and the Wrongs Act now contains a section which stipulates that
‘an expression of sorrow , regret or sympathy’ is not an admission
of negligence.
• Despite this, many doctors continue to be reluctant to apologise and
this attitude often results in legal advice being sought.
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CASE EXAMPLES
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Case Examples
• Sherry v Australasian Conference
Association [2006]
• The hospital admitted that it owed a duty
of care to Mr Sherry for the treatment
provided by nursing and physiotherapy
staff.
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Case Examples
• Johnson v Biggs
• Did Dr Biggs have a duty to inform Mrs
Johnson that the surgery could cause pain
worse than the pain it was intended to
allay?
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Johnson v Biggs
• “I consider that not only should the warning given have
included that there was a risk, admittedly below 5% to
10%, that there would be worse pain; that much the trial
judge held. That warning should have gone further. It
should have stated in broad terms the known adverse
attributes of that worse pain insofar as material. Thus it
should have stated that such pain could be in addition to
the existing pain . . Permanent, sensitive to touch and
for which drugs were only sometimes effective.”
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Wighton v Arnot
• Did Dr Arnot have a duty to inform Mrs
Wighton that he suspected he had
severed a nerve during surgery?
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Wighton v Arnot
• Dr Arnot was “negligent in the following respects: (i)
In the failure to carry out sufficient post-operative
examinations to determine whether the right spinal
accessory nerve had been severed; (ii) in the failure
to advise the plaintiff prior to her discharge from
hospital of the suspected severance of that nerve;
(iii) in the failure to carry out appropriate
examinations of the plaintiff at the post discharge
consultation such as would have established the
severance of the accessory nerve; (iv) in the failure
to advise the plaintiff of the need for surgical repair
of that nerve by a suitably qualified specialist.”
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Elliot v Bickerstaff
• Did the surgeon have a non-delegable
duty of care regarding the work of theatre
staff?
• The Surgeon had relied on the nursing
staff to remove a swab.
• The extent of the surgeon’s duty of care
entitled him to rely on theatre staff.
• No non-delegable duty was found.
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Criminal Law
• Are some breaches of duty punishable
under the criminal law?
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The Case of Dr Patel
• Dr Patel was charged with manslaughter and
grievous bodily harm arising out of alleged
criminal negligence in the conduct of four
surgeries undertaken at Bundaberg hospital.
• The four patients involved had all consented to
the proposed procedures.
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The Case of Dr Patel
• The prosecution alleged not that the
surgeries were conducted negligently, but
that they were unnecessary or
inappropriate in the first place.
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The case of Dr Patel
• Does s288 cover questions of whether
surgery should be performed at all?
• The prosecution argued that it did,
claiming that “ ‘in doing’ the ‘act’ of
administering ‘surgical...treatment’, the
Accused was obliged not to perform the
surgery” [4].
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The case of Dr Patel
• The defence argued that s 288 “does not
extend to misadventures attributable to
pre-surgery incompetence in diagnosis or
in commending an inappropriate
procedure to the patient.” [4]
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What the court decided
• “a surgeon about to embark on surgery,
with consent, is not duty bound to persist
with it: for example, where facts
discovered after the surgeon undertakes
to perform the procedure reveal that
surgery to be inappropriate…’
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What the court decided
• “…And, where a surgeon, having started
an operation, discovers that nothing would
be gained by continuing...reasonable care
‘in doing’ the surgery will, ordinarily,
require the surgeon to end the procedure
prematurely.”
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What the court decided
• “The interpretation of s 288 the
prosecution propounds is preferable. The
Accused is not absolved from criminal
responsibility for the adverse outcomes for
his patients merely because he had their
consent to the procedures and (if it be the
fact) performed them with reasonable skill
and care.” [15]
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The case of Dr Patel
• After a lengthy court process this decision
was quashed in the High Court.
• The High Court ordered that there be a
new trial and Dr Patel was found not
guilty.
• In 2015 Dr Patel was barred from
practicing Medicine in Australia forever.
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Questions?