anne shortall & kate fisher - slater & gordon - two sides to every story-what happened at...

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Project titleDate Month 2014

Djerriwarrh Health

Services

Two sides to every

story?Anne Shortall & Kate FisherAugust 2016

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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.

Disclaimer

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In March 2015 the Consultative Council on Obstetric and Perinatal

Mortality and Morbidity (CCOPMM) alerted the Department of

Health to a cluster of peri-natal deaths at Bacchus Marsh Hospital.

In response, the State Government appointed Professor Euan

Wallace, chair of the CCOPMM, to provide a review of the care

provided, and particularly the number of peri-natal deaths, at

Bacchus Marsh Hospital.

Professor Wallace reported his findings to the State Government on

28 June 2015, in his “Report of an Investigation into Perinatal

Outcomes at Djerriwarrh Health Services”

Uncovering the failings of the Djerriwarrh Health

Service

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Professor Wallace’s report highlighted:

Djerriwarrh Health Service had experienced an almost doubling in

the number of births at the Bacchus Marsh Hospital between 2006

and 2013.

Bacchus Marsh Hospital’s peri-natal mortality was far higher than

the average across the state of Victoria, particularly given the

service provided a “low risk” maternity unit.

Misuse and/or misinterpretation of fetal surveillance by

cardiotocography (CTG) was a recurring feature in the incidents

reviewed.

Professor Wallace’s findings

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Staffing levels were appropriate, however inadequate education of

midwives was evident.

The amount of high quality education provided to hospital staff – both

doctors and nurses – was insufficient.

A lack of out-of-hours/emergency pediatric cover for neonatal resuscitation

contributed to poorer than expected outcomes.

A lack of formal expert multidisciplinary perinatal mortality and morbidity

review was evident.

The clinical governance framework failed to enable adequate monitoring

and responses to adverse clinical outcomes.


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Ultimately, Professor Wallace found that 7 of 11 investigated peri-

natal deaths between 2013 and 2014 were potentially avoidable.

In April 2016, after the initial investigation had been widened and

extended to cases of peri-natal deaths since 2001, a further 5 cases

were identified as potentially avoidable, taking the total of potentially

avoidable deaths to 12.


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Victorian Health Minister, Jill Hennessy, declared that the systemic

failures identified by Professor Wallace constituted “one of the

greatest clinical governance failures that we’ve seen in the

Victorian health system”.

The State Government promptly appointed Dr John Ballard, former

chief executive of Mercy Health, as an administrator of Djerriwarrh

Health Services for a 12 month period.

In October 2015, Mr Andrew Freeman was appointed as Chief

Executive of Djerriwarrh Health.

Dr Liz Mullins was appointed Director of Medical Services.

The State Government dissolved the 8 member board of the

Djerriwarrh Health Service and replaced it with the state

government.

The Department of Health’s response

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The Department commissioned an external review of its

management of the Bacchus Marsh Hospital scandal, to focus on

the broader issues of clinical governance, safety and quality of care

provided in Victorian hospitals, to be chaired by Dr Stephen

Duckett, Director Health Program, Grattan Institute.

The aims of the review are to enable:

The department to uphold its legislative responsibility to improve

monitoring and the quality of care.

The department to strengthen its oversight of hospital safety and quality

to detect early warning signs of clinical governance failures.

Stronger transparency to improve community confidence.

Improve hospital cultures to welcome department involvement in the

pursuit of increased quality and safety of care,.

The Department of Health’s response

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In the weeks following the State Government’s announcements

about the systemic failings at Bacchus Marsh Hospital, Chairman of

the Board, Mr Michael Tudball believed the board had been used as

a scapegoat for failures out of its control on the basis that:

The board had never been made aware of any problem in relation to

the number of peri-natal deaths at the hospital

Although doctors at the hospital would report on deaths, the board was

reassured the events were reviewed and deemed unavoidable. No

trend was apparent to the board.

The hospital had struggled to manage the increasing demand for its

services and noted significant resourcing problems, which only the

State Government could address.

The Board’s response:

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The Australian Health Regulation Agency (AHPRA) revealed that

the agency had received a complaint in relation to the then Director

of Obstetrics at Bacchus Marsh Hospital, Dr Surinder Parhar in

2013.

AHPRA had conducted a review of Dr Parhar, which took the

organisation 28 months to complete. Ultimately, AHPRA placed

conditions on Dr Parhar’s registration.

Dr Parhar retired in or around July 2015 and has been struck off the

register

AHPRA’s response:

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In October 2015 AHPRA launched investigations into a number of

doctors and midwives at the Djerriwarrh Health Service. These

continue.

The CEO of AHPRA, Mr Martin Fletcher, acknowledged and

apologised for the significant delay in investigating Dr Parhar

following the 2013 complaint.

AHPRA confirmed they were not aware of any higher than normal

peri-natal mortality rates or broader concerns about the level of

service provided at the hospital.

AHRPA conducted a review of its own processes in managing

complaints and found that improvements already made had

addressed “systems gaps”.

AHPRA’s response

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The Coroner’s Court does not have jurisdiction over stillbirths.

Deaths of babies who have lived their entire lives in hospital are

also not considered reviewable deaths.

In 2015 the Coroner was asked to investigate the deaths of 3 baby

girls born at Bacchus Marsh Hospital in 2013. Findings were

released in May 2016.

The babies had died 24 hours, seven days and 16 days after their

births.

The Coroner’s response

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The Coroner found that the management of these births was “sub-optimal”

and noted significant clinical errors, highlighting the misinterpretation of

foetal monitoring as a recurring theme.

Also common to each case, resuscitation was required after birth, but there

was no paediatrician, or adequately trained member of staff, available.

In each case, the Coroner “was unable to determine the outcome of [the

baby’s] clinical course had she been delivered earlier”.

Mr Freeman of Bacchus Marsh Hospital responded to the Coroner’s

findings, noting: “The deaths would not have been expected if the care

and management of the mothers’ labours had been different and…the

abnormal CTG traces actioned”.

The Coroner’s Response

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The ABC’s 7:30 program conducted investigations into obstetricians

at Bacchus Marsh Hospital and in February 2016 revealed that one

Bacchus Marsh Hospital obstetrician, Dr Claude Calandra, had

been named as a Defendant in 15 medical negligence cases over a

14 year period.

All of these cases were reported to have been settled out of court.

The lack of awareness of these proceedings highlighted the

problematic nature of confidential settlements of medical negligence

claims in Victoria.

Also, the lack of communication between the organisations charged

with regulating health practitioners in Victoria was apparent.

Other findings

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Following the State Government’s announcement of the systemic

failures at Bacchus Marsh Hospital, those patients identified by

Professor Wallace, who had suffered avoidable losses, received

notification and explanations from representatives of Bacchus

Marsh Hospital.

A number of those patients sought prompt legal advice and settled

their medical negligence cases with the hospital’s insurer, prior to

proceedings being issued in court.

The Office of The Health Services Commissioner revealed it has

conducted conciliations for at least 43 cases dating back to 1990.

Some of these conciliations continue.

The affected patients’ response

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Plaintiff law firms continue to investigate what is likely to be in

excess of 60 cases of stillbirths and birth trauma cases, resulting in

death or catastrophic injuries to children, caused by obstetric

treatment provided at Bacchus Marsh Hospital from 1990 through to

2015.

Lawyers representing such parties have called on the State

Government to widen the scope of their investigations to include

injuries to children resulting from birth trauma, and dating back to

1990. The State Government has not indicated it intends to take this

further step.

The affected patients’ response

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2010: An internal report by the hospital’s director of medical

services advises DHHS that the hospital’s obstetric service was

under extreme risk. This was due to the rapidly increasing clinical

workload and the expected growth in the hospital’s catchment.

February 2013: the hospital notifies DHHS about growing maternity

demand seeking additional funding

DHHS internal emails note that the Director of Obstetrics at

Western Health is concerned as to the Djerriwarrh’s level of medical

support

What went wrong?

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In response DHHS facilitated an arrangement for Western Health to

provide Djerriwarrh with a rotation of registrars, training, supervision and

case reviews and made enquiries as to the care provided at Djerriwarrh

which disclosed no wider concerns

The Director of Western Health resigns as chair of the Maternity Quality

and Safety Committee and expresses serious concerns to DHHS about

maternity services in the western suburbs and surrounding regional areas

including Bacchus Marsh as a result of overwhelming demand issues.

The Director was at that time undertaking a clinical review of a maternity

patient who had been transferred from Djerriwarrh to Western Health which

resulted in a referral to AHPRA in relation to the obstetrician providing care

at Djerriwarrh.

What went wrong?

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July 2013: Djerriwarrh does not meet two core national

accreditation requirements:

Governance and Quality Improvement systems-audit

Performance and Skills Management- training of staff

The CEO of Djerriwarrh advises DHHS that the hospital is confident

that it would have no difficulty responding to the deficiencies

identified and the hospital gained accreditation in November 2013

What went wrong?

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17 January 2014: The Australian Nursing and Midwifery Federation wrote

to the Director of Nursing at Djerriwarrh expressing concerns of midwives

working at the hospital that as a Level 3 facility it was operating outside its

limits by accepting high risk deliveries at 34 weeks and expressed

concerns about staffing levels

The DON replied that policies would be updated to reflect that deliveries at

less that 37 weeks would not be admitted unless there were special

circumstances and that staffing was adequate

The regional office of DHHS approached the CEO of Djerriwarrh and the

DON but in the face of reassurances that the concerns raised by the ANMF

were being addressed DHHS took no further action

What went wrong?

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Mid 2014: The Consultative Council on Obstetric and Perinatal

Mortality and Morbidity (CCOPMM) contacted Djerriwarrh to enquire

whether certain stillbirths had been investigated

March 2015:CCOPMM alerts DHHS to the cluster of perinatal

deaths and DHHS commissions an external report prepared by the

Chair of COPMM Professor Euan Wallace

28 June 2015:Professor Wallace’s report is delivered to DHHS.

Professor Wallace concluded that of eleven perinatal deaths

reviewed, seven arose from deficiencies in clinical care

What went wrong?

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July 2015: retirement of senior obstetrician ant the hospital

August 2015: Interim CEO appointed

October 2015: the Minister for Health dismisses the hospital’s

board and appoints an administrator

What went Wrong?

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ACSQH FINDINGS

The review conducted by the Australian Commission on Safety and Quality

in Health released in November 2015 found that, given the fact that the

statutory responsibilities and accountabilities rested with Djerriwarrh, the

DHHS response was appropriate

Further findings were that the contact between the regional office of DHHS

and the CEO and DON of Djerriwarrh as to ANMF concerns was a missed

opportunity to address the clinical safety issues raised by the Djerriwarrh

midwives and determined that the view taken by DHHS officers was that

this was an operational matter and therefore the responsibility of the

hospital

The availability of better information to DHHS such as adverse incident and

sentinel events reports may have prompted further investigation

What went Wrong?

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There are several elements to effective management of patient

safety:

Clinical Governance Framework

Incident management and reporting

Patient Safety Culture

Consumer Participation

Open Disclosure

What can be done to prevent this happening again?

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The Victorian Health Incident Management System (VHIMS) and the

Clinical Governance Framework reflect Victoria's governance model and

DHHS's role as a system manager:

to guide and support proactive management of adverse events.

to analyse and disseminate state-wide incident data and leasson

to report to the Minister on issues arising from the analysis of state-

wide aggregate clinical incident data

to establish, masintain and review VHIMS and associated incident

management processes and resources


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How have DHHS been managing incident reporting and

evaluating state wide trends in such reporting?

• In March 2016 the Victorian Auditor General's Offfice (VAGO)

issued 'Patient Safety in Victorian Public Hospitals'

• The audit found that there had been systematic failures by DHHS

indicating a lack of effective leadership and oversight which

collectively pose an unacceptably high risk to patient safety

.


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The issues raised by VAGO in relation to DHHS included the following:

Failing to comply with its patient safety framework

Not having an effective statewide incident reporting system

Not using patient safety data effectively to identify overall patient safety trends

Failing to collaborate with the Victorian Managed Insurance Authority (VMIA)

hindering VMIA's ability to optimise its support to hospitals in relation to patient

safety

These findings also reflect the ACSQHC findings that the availability of better

information to DHHS such as adverse incident and sentinel events data at

Djerriwarrh may have prompted further investigation by the regional DHHS office


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VAGO concluded that systemic failures by DHHS some of which

were identified over a decade ago in VAGOs 2005 patient safety

audit, indicate that DHHS is not effectively providing leadership or

oversight of patient safety

While the four health services audited by VAGO had improved their

performance in patient safety systemic statewide failures have

undermined their capacity to be fully effective

Weaknesses in incident investigations and evaluations of

implemented actions from incident investigations meant that the

audited health services do not have a complete understanding of

the effectiveness of improvements implemented following an

incident


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While DHHS developed a key patient safety framework in 2011, the

Adverse Events Framework, it has not complied with it

DHHS has not implemented an effective statewide incident reporting

system

This means that DHHS cannot effectively perform its role in providing

leadership and oversight of the whole safety system

In 2014 DHHS established a number of advisory committes that consider a

broad range of patient safety information. However the information is

fragmented and important trends may be overlooked


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.


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DHHS does not have assurance that health services are

consistently reporting sentinel events as there is no requirement for

reporting when no sentinel events occur

One audited health service had not submitted any sentinel event

information to DHHS for 18 months due to resourcing and

governance issues despite the fact that sentinel events had

occurred

However DHHS would not have been aware of this failure due to

the fact that there is no need to report if a sentinel event has not

occurred


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A lack of system wide data from DHHS limits health services ability to understand or appreciate state wide trends to allow comparison of their performance with other similar health services

Its unlikely that the Board at Djerriwarrh were able to compare the hospital's perinatal morbidity rate with similar hospitals statewide as such information would not have been available to the Board

Professor Wallace and the Australian Commission on Safety and Quality in Health in their review published in November 2015 have recommended that the Gestation Standardised Perinatal Mortality Ratio (GSPMR) is calculated for all maternity units and that DHHS provide the GSPMR to all health service boards.

Had this been undertaken earlier the very high GSPMR for Djerriwarrh would have become apparent earlier


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DHHS incident management policy requires the reporting of 'sentinel events' to the department within three days There are eight 'sentinel events' defined in the policy. The list does not include perinatal deaths

ACSQHC recommended that DHHS consider including unexpected intra partum stillbirth, term or near term unexpected perinatal deaths in its list of sentinel events

DHHS also requires reporting of adverse outcomes with an in depth review and a summary of a root cause analysis report for Incident Severity Rating 1 (ISR-1) incidents. All of the seven stillbirths identified by Professor Wallace in his initial report warranted an ISR-1. Although Djerriwarrh made four VHIMS reports in relation to maternity services from 2012 to 2014 DHHS only holds two reports over this period


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There are 70 rural health services managed by five DHHS regional offices.

Quarterly meetings are held to monitor performance of the helth facilities

but no problems were identified at Djerriwarrh during 2013 and 2014.

DHHS staff acknowledged to ACSQHC that the meetings were focussed on

budget and activity data. Clearly patient safety issues were being ignored

In practice regional health services operate autonomously and DHHS

accepted assurances from Djerriwarrh that issues were being addressed

with very little evidence in support. A more interventionist approach is

clearly warranted in order to avoid the situation at Djerriwarrh reoccurring

ACSQHC found that this was a missed opportunity for earlier intervention

at Djerriwarrh


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VAGO's 2008 patient safety audit found that there was no statewide system

in Victoria to collect key clinical incident data from health services.

At the time Victoria was the only Australian jurisdiction in this position

and in response DHHS developed VHIMS. Since 2011 health services

have been required to report clinical incidents on a monthly basis

VAGO found that none of VHIMS four objectives had been met due to

overly complex and overlapping incident classification which means that

the data cannot be aggregated and analysed to investigate statewide

trends


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DHHS has known about these shotcomings since 2011 based on a

number of internal reviews

A VHIMS improvement project is underway and is expected to be

finalised in May 2017


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THE CLINICAL INCIDENT REVIEW PANEL

The Clinical Incident Review Panel (CIRP) is responsible for reviewing the

most serious clinical incidents, sentinel events

There are prolonged delays in CIRP reviewing root cause analysis reports

submitted by health services for up to 16 months. As at 30

September 2015 CIRP had 33 unproceesed RCA reports which represented a backlog od 12 months of commitee work.

CIRP is failing to provide feedback on RCA reports to health services. In

2013/14 it provided feedback on one out of 52 RCA reports.

There was no annual report in 2013/14 or 2014/15 and data for the 2011/12

and 2012/13 annual report was published in May 2014


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THE CLINICAL INCIDENT REVIEW PANEL

Clearly CIRP is underfunded and under resourced and unable to complete

its job.

DHHS has advised VAGO that it is currently reviewing its sentinel event

reporting program but has not committed to when this will be completed.

The Clinical Incident Review Panel (CIRP) which reviews sentinel events

has only provided feedback to individual health services on one out of 52

root cause analysis reports in 2013-14

There is ongoing delay in relation to publication of CIRPs Sentinel Event

Program Annual Report and the DHHS bulletin Riskwatch

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VAGO has recommended ( as it did in 2005 and 2008) that DHHS, as a matter of

priority:

reviews, updates and complies with its 2011 Adverse Events Framework

implements an effective statewide clinical incident report system

aggregates, integrates and systemically analyses the clinical incident data it receives

from different sources

implements a process for health services to report sentinel events and an abscence

of sentinel events

promptly disseminates lessons learnt from sentinel events to health services

includes meaningful indicators in its performance assessment score such as

morbidity and mortality rates

shares patient safety data with VMIA


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ACSQHA has made the following recommendations:

DHHS strengthens its monitoring of clinical governance at health

services including auditing the effectiveness of, and compliance

with the clinical governance framework

DHHS continues to develope a framework available to regional

offices for monitoring clinical safety in local health services including

monitoring of reporting of incident reporting by health services to

their boards of managment

DHHS improves its capacity to monitor and integrate reports of

incidents and include in its list of sentinel events unexpected

stillbirth at term or near term

What can be done to prevent this from happening again?

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ACSQHC Recommendations

DHHS review the effectiveness of its incident reporting system so

that such reports can be systemically analysed and appropriately

disseminated.

DHHS provides the Gestation Standardised Perinatal Mortality

Ratio to all health service boards

DHHS develop guidelines on its powers to monitor the performance

of health services and the circumstances where the exercise of

such powers are appropriate


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In relation to the stillbirths identified by Professor Wallace as

preventable.

In relation to other stillbirths outside the period of investigation

In the event that babies have died it is clear that some babies will

have suffered birth hypoxia and a lifetime of disability

Legal Implications

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Exemplary damages:

Exemplary damages are awarded only in circumstances where the defendant has

acted in 'contumelious disregard' of the rights of the plaintiff, and with the social

purpose of teaching a wrongdoer that 'tort does not pay'. They may also serve to

assuage any urge for revenge felt by the victims. In assessing the amount of the

exemplary award, courts will have regard to all of the circumstances of the case,

including:

•the means of the defendant (an award should be able to be 'felt' by the defendant);

•the plaintiff's provocation of the defendant's conduct; and

•the extent of any punishment that has already been inflicted on the defendant.

Legal Implications

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For further information:

[email protected]

Direct line: 8804 8916

[email protected]

Direct line:8762 0265

mailto:[email protected]