bill madden - slater and gordon lawyers & associate professor tina cockburn - qut faculty of law...

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The Medico-Legal Future

Bill Madden, Slater + Gordon Lawyers

Associate Professor Tina Cockburn,

Australian Centre for Health Law Research

The Medico-Legal Future: Key Influences

• Clinical developments: genetics focus

• Changing Health services delivery:

– Technology

– Structures

• Scrutiny by data

Clinical Developments: Genetics

Genetics: Birth claims

• Recent settlements

– Cystic fibrosis & 13q deletion cases – Loss of opportunity to terminate pregnancy.

• Interlocutory

– Eastbury v Genea Genetics [2014] NSWSC 1793

• Limitation period extension granted (1999 treatment).

• Mother aware of Fragile X family history.

• Before pregnancy sought testing to determine carrier status.

Genetics: Birth claims

• Judgments

– Waller v James [2015] NSWCA 232

• Held: an obstetrician providing IVF

information and treatment owed a duty of

care which extended to the provision of

information as to the importance of

seeking genetic counselling

Genetics: Not only birth cases

• Familial cancers

– current Australian case – claim against oncologist for failure to advise where family history of Lynch syndrome (genetic condition > high risk of colon cancer).

• Sudden cardiac events

– Hereditary heart disease: Zenter & Ors, The Cardiac Genetics Clinic: A model for multidisciplinary genomic medicine (2015) MJA.

• Others?

Genetics: Claims by non-patients

ABC v St Georges Healthcare NHS Trust & Ors[2015] EWHC 1394 (QB)

• Balancing the interests:

– patient confidentiality

– public interest if failure to disclose may expose others to a risk of death or serious harm

» Cf. PD v Harvey [2003] NSWSC 487

Genetics: Medico-legal impacts

• Potential plaintiffs – patients & non- patients

(spouse, sibling, child).

• Potential defendants - general practitioners,

obstetricians, oncologists, cardiologists.

• Long lead time for claims.

Health Services Delivery:

Changing Technology and Structures

Health Service Delivery: Technology

Communication failures - Postal delays

Inquest into death of Marjorie Aston (17 July 2015, SA)

• “The method of communication … is to my mind simply an administrative practice and one which should be taking advantage of all available modern technology.”

• “… immediately advise … by the most efficient method of communication available ... the practice of communicating with general practitioners by way of ordinary post should be curtailed and be replaced by a means of communication that would include email and/or facsimile transmission. Any such communication should contain a request that the general practitioner, by return, acknowledge the communication. It may be necessary in some cases for the specialist to communicate with the general practitioner by phone.”


Communication failures – mobile phone

Inquest into deaths of Wright & Carter (28 Aug 2015, Qld)

• Series of almost unbelievable errors, misunderstandings and

miscommunications :

– Handheld telephone in ward uncharged.

– Dr had Qld Health mobile as well as his own private mobile.

Relevant roster omitted Dr’s private number.

– Qld Health mobile was flat and in Dr’s car. He had taken it with

him over Christmas but did not have a charger.

– Dr did not like receiving long messages from nurses and

utilised a voice to text 10 second message service.

• Failure by the doctor “to have his phone charged or to advise the

hospital of an alternative telephone number was inexcusable.”


Communication failures – social media

HCCC v Dr Nikolova-Trask [2014] NSWCATOD 149

• The use of text messaging and the internet to make and confirm appointments, including medical appointments, is widespread and has practical benefits. … medical practitioner, should observe in their communications appropriate care. The requisite care must ensure patient confidentiality is preserved. In this regard it is important professionals bear in mind information conveyed by text messages and social media can easily be corrupted or misused. … any policy implemented by a practitioner that involves disclosure of confidential medical information via email, or social media should be subject of a patient’s informed consent.


Record keeping failures – incomplete

Woollard v The Medical Board of Australia [2015] WASC 332

– include reference in notes to having provided a consent form

and the booklet, and having discussed the potential risks and

complications > not just a copy of the form

– “The submission on behalf of Dr Woollard was, in effect, that

once the panel had found the patient gave informed consent,

the finding that Dr Woollard had failed to maintain proper

clinical notes could not follow. The submission, however,

confuses two matters. Whether Dr Woollard properly recorded

his discussions with the patient is an independent issue.”

• unsatisfactory professional conduct


Record keeping failures – rectification

Re Human Fertilisation & Embryology Act 2008 [2015] EWHC 2602 (Fam)

• “This judgment relates to a number of cases where much joy but also, sadly, much misery has been caused by the medical brilliance, unhappily allied with the administrative incompetence, of various fertility clinics. The cases I have before me are, there is every reason to fear, only the small tip of a much larger problem.

• …

• The question of who, in law, is or are the parent(s) of a child born as a result of treatment carried out under this legislation … is, as a moment's reflection will make obvious, a question of the most fundamental gravity and importance. What, after all, to any child, to any parent, never mind to future generations and indeed to society at large, can be more important, emotionally, psychologically, socially and legally, than the answer to the question: Who is my parent? Is this my child?”

Health Services Delivery (Technology) :

Records – Unplanned Patient Recording

Toth v Director of Public Prosecutions (NSW) [2014] NSWCA 133

– Patient committed an offence under Surveillance Devices Act 2007 (NSW), for covertly recording a medical consultation using a concealed video recorder in the shape of a pen.

DB v Ingham (US)

– Patient recovered $500,000 for defamation and clinical malpractice after recording the surgical team mocking and insulting him while he was under anaesthetic, discussing avoiding him after surgery, instructing an assistant to lie to him, and placing a false diagnosis on his chart.

The Future

Health Services Delivery: Structures

• Structures through which health services

are provided

– Large private Hospitals

– Large medical centres

– Large corporations

– Telehealth technology – virtual provision

Scrutiny by Data

Scrutiny by Data

• Bacchus Marsh – Perinatal Mortality &

Morbidity Committee

Scrutiny by Data

• PRONE score research of Marie Bismark et al predicting doctors’ risks of formal patient complaints

• Research by David Studdert et al predicting doctors’ risks of malpractice claims

• Research by Duckett et al. focusing on analysis of hospital discharge data, to identify and act on potentially inappropriate care

Scrutiny by Data

• The recent interest of Medibank and

other private health insurers as to who

should pay for pre-defined adverse

events;

• IBM Watson Health.

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Bill Madden, Slater + Gordon Lawyers

Associate Professor Tina Cockburn, Australian Centre for Health Law Research