kate fisher - slater and gordon lawyers

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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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• 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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• 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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• 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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• 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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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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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

• 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 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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• “…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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• “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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• 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.