Safety and Quality in Health

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Safety and Quality in Health

• ACHSE (SA)
• 15 June 2007
• Wayne Cahill
• Partner

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Important Safety and Quality Concepts

• Awareness
• Process

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Content

• Potential Liability for contracted
  doctors/liability for failure to review or follow
  up
• Liability for failure to follow up
• Liability for failure to follow up complaints
• Conclusion

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Potential Liability for Doctors

• Albrighton v RPAH
• The hospital, by admitting the appellant, could
  be regarded as undertaking that it would take
  reasonable care to provide for all her medical
  needs and whatever legal duties were imposed
  upon those who treated, diagnosed or cared for
  her needs from time to time, ... there was an
  overriding and continuing duty upon the hospital
  as an organisation. It was not a mere custodial
  institution designed to provide a place where
  medical personnel could meet and treat persons
  lodged there, as it might have been regarded in
  years long since gone by. (emphasis added)
• Reynolds JA

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Potential Liability for Doctors

• Ellis v Wallsend District Hospital
• Kondis v State Transit Authority
• Burnie Port Authority v General Jones Pty Limited
• Chambers v Macquarie Pathology Services Pty
  Limited

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Potential Liability for Doctors

• Vicarious liability on basis of employment
  relationship
• Direct non-delegable duty of care liability on
  basis of hospital and patient relationship

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Possible Direct Non Delegable Duty of Care
Situations

• Advice of names of appointed doctors
• Referral from accident and emergency
• Anaesthetist
• Consultant
• Locum arrangements
• Other visiting staff
• Pathologist
• Radiologist

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Medical Appointments

• Nature of appointment
• Office
• Macksville Hospital v Mayze
• By laws
• No appeal against initial appointment
• Other issues
• discrimination
• Trade Practices Act
• Application form
• importance of key questions

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Possible Liability for Failure to Review

• Johnson -v- Misericordia Hospital
• Failure to review an application which was
  fraudulent
• Kadlec Medical Centre v Lakeview Anaesthesia
  Associates
• Negligence through alleged omission of material
  facts concerning a doctors service
• Patel Inquiry/"Doctor Death" (credentialing/failu
  re to follow up complaints)

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Johnson -v- Misericordia Community Hospital

• Failure to investigate a medical staff
  applicant's qualifications for the privileges
  requested gave rise to a foreseeable risk of
  unreasonable harm and a hospital has a duty to
  exercise due care in the selection of medical
  staff
• If MCH had exercised ordinary care it would have
  discovered
• Privileges revoked at other hospitals
• Denial of staff privileges at other hospitals
• Never held claimed appointments at other
  hospitals
• Reduction of privileges
• Malpractice suits against him
• Credible evidence to the effect that a hospital
  exercising ordinary care would not have appointed
  Salinsky to its medical staff

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Johnson -v- Misericordia Community Hospital

• A hospital should at a minimum require completion
  of the application to verify the accuracy of the
  applicant's statements especially in regard to
  his medical education, training and experience
• Additionally it should
• Solicit information from peers
• Determine if currently licensed to practice and
  if this is subject to challenge
• Check if any adverse malpractice action
• Whether he has lost privileges

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Johnson -v- Misericordia Community Hospital

• Hospital had "corporate negligence" (similar to
  Australian direct non delegable duty of care)

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Kadlec Medical Centre v Lakeview Anaesthesia
Associates

• Anaesthetist was terminated by Lakeview based on
  suspicions that he was diverting medications
• Staff privileges expired
• Medical centre sent a request for a "candid
  evaluation" to Lakeview for information about the
  doctor
• Lakeview sent a reply letter stating only that
  the doctor had been on its medical staff

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Kadlec Medical Centre v Lakeview Anaesthesia
Associates

• Medical centre subsequently was sued for
  malpractice allegedly resulting from the
  anaesthetist's drug impairment during surgery
• Court found that Lakeview had a duty to disclose
  information concerning the doctor and his
  performance
• Public policy decision of "not knowingly passing
  on an impaired doctor to another unsuspecting
  health care provider"
• Misleading and deceptive conduct under the Trade
  Practices Act 1974

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Liability for Failure to Investigate a Complaint

• Guerelli -v- Girgis
• Action against orthopaedic surgeon for negligence
• Fractured leg, admission to hospital and
  operation
• Plaintiff made complaints on various occasions to
  physiotherapist and surgeon of serious pain in
  leg and inability to put any weight on the leg
• Court found the complaints should have indicated
  to the surgeon the possibility the fracture was
  not uniting satisfactorily

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Guerelli -v- Girgis

• Plaintiff had been a very difficult patient
• The surgeon without making proper investigation
  formed the opinion the complaints were
  attributable to a low pain threshold and were
  exaggerated
• When the plate was removed and the patient
  attempted to put weight on the leg the leg gave
  way necessitating a further operation
• Held that the surgeon by his failure to listen to
  the patient and properly investigate the
  patient's complaint had been negligent

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Possible Liability for Failure to Review

• Cases illustrate the need for thorough assessment
  or verification of application, appropriate
  attention to providing references and the need
  for review of performance/complaints

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Liability for Failure to Follow Up

• Cases in Queensland, NSW and South Australia
• Most relate to cancer diagnosis delays
• Mann V Flinders Medical Centre
• Inpatient discharged after 8 days admission
• Outstanding pathology report
• Report disclosed adverse microbiology result
• Results not communicated to him or to GP
• Subsequently treated at other hospitals including
  cardiac surgery
• Judge found FMC negligent and that patient
  suffered an injury as a result of FMC's
  negligence
• Damages of over 1.1M

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Awareness/Process

• Adequately review and verify medical applications
• Check registration/insurance/experience/referees
• Address issues, including behaviour/compatibility
• Accord Natural Justice
• Follow by laws
• Be honest in references
• Investigate complaints fully
• Check on follow up diagnostic reports
  particularly potentially adverse reports

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Conclusion

• "Those who consent to the act and those who do it
  shall be equally punished"
• Sir Edward Coke 1552-1634

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Conculsion

• "Knowledge Itself Is Power"
• Francis Bacon