Feature

Medical negligence: What GPs need to know


Neelima Choahan


16/08/2018 2:48:38 PM

For the fifth of a series on legal matters in general practice, newsGP spoke with two experts regarding what GPs need to know about medical negligence.

News teaser
Medical negligence requires proof there has been a breach of the duty of care owed by the doctor to the patient.

The 35-year-old patient attended the GP complaining of a cough and pains in his chest, arms, shoulders and back, which he attributed to the coughing.
 
The patient was a smoker and experienced type 1 diabetes.
 
A physical examination was normal and the GP made a diagnosis of bronchitis. The patient was asked to return for review if his symptoms worsened.
 
But the patient died at home the next day.
 
An autopsy revealed evidence of an acute myocardial infarction. The patient’s wife initiated legal proceedings against the GP, alleging a failure to diagnose the heart attack.
 
Stuart Le Grand, Le Grand Margalit Lawyers
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Personal injury lawyer Stuart Le Grand saysone must look at what standard of care is required by a doctor before considering whether there has been a breach of the duty of care.

According to Mr Le Grand, professionals such as doctors owe a duty to a patient to exercise reasonable skill and care. 
 
‘In order for a patient to succeed in a case of medical negligence against a GP, he or she must be able to prove on the balance of probability that there has been a breach of the duty of care owed by the doctor to the patient, and that breach has caused the patient loss and damage,’ he told newsGP.
 
What is breach of duty of care?
In considering whether there has been a breach of the duty of care, Mr Le Grand said one must look at what standard of care is required by a doctor.
 
‘Common law states that the standard of reasonable care is that of the ordinary skilled person exercising and professing to have that specialised skill,’ he said. ‘This standard was clarified and modified after legislative Tort Law Review in 2002.
 
‘The effect of the legislation is that a medical practitioner is not negligent if the court is satisfied that the treatment was provided in accordance with an opinion widely held by a significant number of respected practitioners in the relevant field, and that opinion is not in the eyes of the court unreasonable.’
 
Causation
However, Mr Le Grand said not only must a plaintiff prove injury or loss, but the plaintiff or patient must prove that the injury or loss was caused by the GP’s breach of the duty of care.
 
‘Often, a court looks at whether the injury would not have occurred but for the GP negligence,’ he said.
 
‘If the damage would have occurred notwithstanding the negligent act or omission, then “causation” is not proven.’ 
 
Types of medical claims
Mr Le Grand said the types of claims could include:

  •          failing to diagnose a patient’s condition 
  •          symptoms being overlooked or dismissed
  •          prescribing or giving a patient wrong medication
  •          failing to warn the patient about a treatment’s risk.
Time limits
Strict time limits apply to bring a claim in medical negligence.
 
‘In most jurisdictions, with limited exceptions, it is three years starting from the date on which the negligence that caused the patient’s injury is discovered by the patient,’ Mr Le Grand said.
 
‘In exceptional circumstances, a court can grant an extension.’
 
Peer defence
The peer professional opinion can be used as a defence against a prima facie finding of negligence against the GP, Mr Le Grand said.
 
‘The onus will be on the GP to establish that they acted in accordance with peer professional opinion,’ he said.
 
Mr Le Grand said a common way to do this is to lead evidence from other eminent practitioners. In addition, it is not uncommon for practitioners to produce evidence of Australians standards of teaching, training and practice, including literature, seminar papers, and professional development courses on appropriate or widely used treatments.
 
What can a patient recover at law if successful?
Mr Le Grand said a claim for compensation for loss or injury sustained due to professional negligence will ordinarily include damages for pain and suffering, along with past and future loss of wages, medical expenses, care expenses and legal costs. 
 
Dr Sara Bird, Medico-legal and Advisory Services, MDA National
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Dr Sara Bird believesit is very important for GPs to maintain accurate medical records, which can provide proof about the treatment of a patient. 

Dr Bird told newsGP negligence is a legal, not medical, term and has to meet certain criteria to be proved – that there was a duty of care owed to the claimant, the duty of care was breached and the breach caused damage or injury to the claimant.
 
‘It is a term that is sometimes bandied about by patients in complaints, but without the understanding that it has got quite a specific [meaning],’ Dr Bird said.
 
‘For example, if a doctor has inadvertently prescribed penicillin to a patient who is allergic to it and the chemist says, “Our records show you are allergic” and does not dispense the drug … and the patient then writes to the GP saying, “You are grossly negligent prescribing that medicine”.
 
‘Well, they are not, because no injury was suffered. It might have been an error, but not negligence.’
 
How proceedings start
Dr Bird said the GP may either receive a statement of claim, writ, or a request from a solicitor or the claimant for compensation.
 
‘The solicitors will use what their client says and the medical records as a basis to get expert opinion to tell them whether there is evidence that there has been medical negligence,’ she said.
 
‘If the GP receives a letter from solicitors asking for their medical records where they are aware there has been some sort of adverse outcome for the patient, I recommend they contact their medical defence organisation.’
 
Dr Bird said the request will have a signed authority from the patient authorising their lawyers to access the medical records, and the GP is legally obliged to provide the records.
 
What should GPs do if they think they are going to be sued?
Dr Bird said doctors are obliged to have appropriate professional indemnity insurance and should contact their medical defence organisation as soon as they become aware of a claim against them. 
 
‘It is a form of insurance, in the sense that you are paying a premium to your medical defence organisation who will indemnify [cover] you for a claim, in accordance with the terms and conditions of the professional indemnity insurance policy,’ she said.
 
‘If you do receive a claim, contact [your medical defence organisation] who can then organise and cover all the legal defence costs, as well as cover any award of damages that may be made against the GP.’
 
Who can claim?
Dr Bird said the claimant will be the patient in most cases, but there can be instances in which the claimant might be someone else.
 
‘One of the situations might be where the patient has died, and that would be what’s known as a “compensation to relatives” claim,’ she said.
 
‘Over the last few years we are seeing more claims where the relatives of a patient also bring a claim, called a “nervous shock” claim, alleging they have suffered some sort of psychiatric injury as a result of what has happened to the patient.’

Dr Bird said there are occasionally claims where the GP owes a duty of care to a third party, to someone they have never seen before. She cites a case where a GP was successfully found guilty of negligence after there was a delay in informing a patient they had a positive HIV test and the patient’s sexual partner contracted HIV.
 
What is the claim about?
A medical negligence claim is about money, not specifically about the knowledge, judgement and skills of the GP, Dr Bird said.
 
‘If a patient wanted to address those issues then they would make a complaint to the medical board,’ she said.
 
‘The purpose in bringing a claim is simply to see whether [the claimant] can be successful in getting money.’
 
Dr Bird said while GPs may think claims are about very complex nuances in clinical practice and management, the basis of most claims is a factual dispute between the claimant and the defendant GP about their recollection of the events leading to the claim.
 
‘That is the reason why medical records are so important,’ she said.
 
‘Where there is a dispute between the two parties as to what actually occurred in a given consultation, the source of truth is nearly always a contemporaneous medical record of those consultations – made on the day, at the time.’
 
Can the GP alter medical records after the patient’s visit?
‘It is important for GPs to be aware that they should never alter or try to add to a medical record on receipt of a claim,’ Dr Bird said.
 
‘There is an old adage, “good records, good defence; poor records, poor defence; no records, no defence”. But I would add to that, altered records and the matter has to be settled because that goes to the doctor’s credibility.’
 
Where there is no claim, Dr Bird said a GP could make additions to a patient’s medical records after the consultation as long as it was dated appropriately.
 
If there is no record, did it actually happen?
‘Sometimes people say, “If isn’t recorded it didn’t happen”,’ Dr Bird said.
 
‘That is not true, because GPs will have their usual practise, and everyone recognises GPs are not making medical records thinking there is going to be a claim arising out of this consultation.
 
‘So if they saw a baby and the mother said they had a fever … it would be the GP’s routine practise to always check the temperature at that consultation. So the fact that it is not recorded doesn’t mean it didn’t happen.
 
‘But it obviously makes it more difficult to potentially defend the matter if the mother is adamant that the doctor never checked the child’s temperature.’
 
The quantum of claims
‘The amount that a claim is worth in monetary terms is referred to as the “quantum of the claim” and this is not proportional to the degree of negligence,’ she said.
 
‘The quantum actually relates solely to the injuries and disabilities that have been sustained by the claimant.’
 
Will it proceed to a hearing?
Dr Bird said most claims are settled out of court, without any adverse publicity for the GP.
 
‘The vast majority of claims are resolved on confidential terms and nobody is ever the wiser,’ she said.
 
‘Less than 5% of claims will proceed to a court hearing, and that’s the only time when there would be any media publicity.’
 
The stress of a claim versus complaints
‘My experience working for a medical defence organisation is that doctors generally find claims actually less stressful than complaints,’ Dr Bird said.
 
‘There is no impact on their ability to practise medicine. There is no possibility of losing their ability to practise through a claim, because it is all about money. 
 
‘It is not about dealing with the Medical Board where, if it is a very serious matter, the Board has the ability to impose conditions and even suspend a doctor’s registration.’
 
Dr Bird said there is also no direct financial impact on the GP, because their medical defence organisation will be the one responsible for payment of any legal defence costs and damages that arise out of the claim.



medical defence organisation medical negligence medico-legal





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