Medicolegal Issues

in Hospital in the

Home

Nicholas Mann

Senior Associate

Medical Law, Melbourne

25 May 2014

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1. Our position regarding HITH;

2. Overview of medical law in Victoria;

3. Strengths and weaknesses of HITH from a legal

perspective;

4. HITH Case Study;

5. Questions.

Introduction

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Our position regarding HITH

►HITH associated with reductions in mortality,

readmission rates and cost, and increases in

patient and carer satisfaction.

►Increases in patient and carer satisfaction =

reduction in complaints and claims.

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Our position regarding HITH

►We strongly support HITH from a patient safety

perspective.

►Likely to create different risks which need to be

considered in order to maximise patient safety

and satisfaction.

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Duty of Care <

Standard of Care

Causation

Damage

Medical Law Overview

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Medical Law Overview - Duty of Care

►A duty of care uncontestably exists in direct

doctor – patient relationship.

►This duty extends to patients being treated

through HITH.

►The scope of the duty continues throughout the

HITH admission.

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Duty of Care

Standard of Care <

Causation

Damage

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Standard of Care

A Medical Practitioner must act accordance with a

practice accepted as proper by a responsible body

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Standard of Care

Bolam v Friern Hospital Management Committee [1957] 1 WLR

582:

– A case regarding a mental health institution patient suffered

injury undergoing electro-convulsive therapy.

Decision:

- A practitioner must act in accordance with the standard of a

reasonable body of medical opinion. –

- McNair J. stated that a practitioner “is not guilty of negligence if he

has acted in accordance with a practice accepted as proper by a

responsible body of medical men skilled in that particular art.”

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Standard of Care

►What is the standard expected of Hospital in the

Home?

• HITH holds itself out as providing the service of a Hospital, but

in a different environment.

• For this reason, the same standard applies.

• A person or medical facility that holds themselves out as having

a specialist skill will be judged by the objective standards of a

reasonably competent person (or facility) exercising that skill.

Shakoor v Situ (t/a Eternal Health Co) [2000] 4 All ER 181

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Standard of Care

► Is there a lower standard because it is within a

patient’s home rather than in a Hospital setting

• No.

►Can the Hospital transfer its legal duties by relying

on family members to provide required care?

• No

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Duty of Care

Standard of Care

Causation <

Damage

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Causation

The negligence must have caused or significantly

contributed to the injury.

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Causation

►South Australia Asset Management Corp v York

Montague Ltd [1996] UKHL 10:

► “A mountaineer about to undertake a difficult climb is concerned

about the fitness of his knee. He goes to a Doctor who negligently

makes a superficial exam and pronounces the knee fit. The climber

goes on the expedition, which he would not have undertaken if the

Doctor had told him the true state of his knee.”

► If the mountaineer is then injured in an avalanche, “the doctor is not

liable. The injury has not been caused by the doctor’s bad advice

because it would have occurred even if the advice had been

correct.”

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Causation

Tabet v Gett [2010] HCA 12

In a unanimous decision, the Court held that damages are not available for the loss of a chance of a better medical outcome.

The plaintiff must prove, on the balance of probabilities, that they would have had a better outcome had the defendant not been negligent.

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Duty of Care

Standard of Care

Causation

Damage <

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Damage

► If a Plaintiff successfully establishes that their injury was

caused by medical negligence, they have an entitlement

to seek ‘‘damages’‘ for the losses they have suffered as

a result.

►No damages in the case of a near miss, and very limited

damages where the injury is not permanent or ongoing.

►Damages are made up of ‘‘economic loss” and

‘‘non-economic loss” (pain and suffering).

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Potential Advantages of HITH

►Quicker recovery;

►Lower cost;

►Less exposure to risks such as infection;

►Frees up resources for other patient tx;

►Happier, healthier patients;

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Key areas of risk in HITH

►Breakdowns in communication and education

►Failure to refer back to Hospital

►Administration failure

►Unsuitable candidate/carer/environment

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Case Study

►17 year old boy admitted with abdo injury. Pancreatic

surgery.

►Discharged into HITH.

►Two days post-discharge developed bleeding and

discharge.

►Patient worsened.

►Several complaints, not fully communicated.

►Father called nurse and advised Pt having difficulty

breathing. Nurse called Ambulance.

►Pt collapsed and died in Hospital from intra-abdo

haemorrhage from pancreatic rupture.

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Case Study: Some Issues Raised

►Is the Pt an appropriate candidate?

• In this scenario, the Coroner found the Pt was an

appropriate candidate, but this is important to

consider.

• Does Pt have capacity to give consent (if necessary)

and understand instructions?

• Does Pt have suitable carer(s) and accommodation?

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Case Study: Some Issues Raised

►Are staff, Pt and carers properly educated?

• Ensure staff are aware of the risks to the patient, and

of the contingency plan, should issues develop.

• Ensure carers are aware of symptoms or issues to

flag, and of appropriate responses.

• What are the thresholds for referring Pt back to

Hospital?

• Who should review Pt if issues develop?

• Should Pt go to GP, ED, ward or have home review?

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►Administration

• Do the Carers have the correct contact details?

• Pt’s mother had been given the contact details for

his old ward, not for HITH, while father contacted

HITH.

• Confusion about the appropriate point of contact,

and whose care Pt was in.

• Is there a written contingency on hand for treating

practitioners and carers?

Case Study: Some Issues Raised

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Case Study: Some Issues Raised

►Administration

• Locating and updating documentation:

• Failure to communicate crucial details

• Where is the patient’s documentation?

• How detailed are the medical records/progress

notes?

• How/when are they being updated?

• Is there a clearly identified chain of custody of

documentation?

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Other things to consider

►Refusal of treatment

►Unsuitability of environment/carers

►Additional risks including co-morbidities eg Type

II diabetes

►Safety of staff

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Disclaimer

The information provided by Slater & 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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Questions or comments?