Patient complaints, medicolegal litigation, AHPRA notifications, and investigations into conduct and behaviour are accepted aspects of the healthcare industry. Learning from medical errors and omissions is a vital part of any healthcare system’s quality and safety improvement efforts[1].
State of play
There is a small increase in the amount of litigation across all Australian jurisdictions. Being sued remains rare and going to a public trial is even rarer. MIPS has observed a steady increases in complaints and investigations.
Emerging issues and trends in medico-legal issues include:
- Higher numbers of disciplinary proceedings arising out of poor professional conduct such as inappropriate use of social media
- Telehealth related issues including possible claims/complaints from:
- failure or delay in diagnosis
- missing or poor follow up
- inadequate or no patient examination
- privacy and security breaches including recording consultations
- COVID-19 related issues such as:
- failure to prevent exposure
- failure to communicate potential adverse effects and material risks
- errors in administering the vaccine
- failure to obtain valid informed consent to receiving a COVID-19 vaccine
- Medicare and PSR investigations
Members should notify MIPS in a timely manner of any likelihood of a claim or complaint or adverse or unexpected outcome to a patient.
A claim in negligence requires:
- A duty of care to the person who suffered harm or loss.
- The duty of care has been breached.
- The breach caused the loss or harm suffered by the person.
Causes of litigation
The most common causes of ligation against healthcare practitioners are:
- Negligence
- Failure to:
- Diagnose a condition or delay in diagnosis.
- Provide sufficient and/or adequate advice.
- Disclose material risks.
- Obtain valid informed consent.
- Failure to:
- Trespass to the person
- Undertaking a medical intervention that involves touching a person without his or her consent.
- Performing any clinical intervention without a person’s valid informed consent
- Breach of contract
- Uncommon, but often combined with negligence.
- Failure to provide care at the promised standard.
- Breach of fiduciary duty
- Failure to keep fiduciary duties, such as:
- Maintaining confidentiality
- Avoiding conflicts of interest.
- Failure to keep fiduciary duties, such as:
What does it take for an action in negligence to succeed?
- Establishing that a duty of care was owed by a healthcare practitioner to a patient.
- Establishing the expected standard of care, and breach of that established duty of care by the healthcare practitioner.
- Establishing “causation”, that is, the breach of the duty of care caused, or materially contributed, to the damage or loss suffered.
- Establishing that the loss or damage was reasonably foreseeable.
- Consideration if loses and/or damages are assessable monetarily.
What is loss of chance in medical litigations?
If the treatment that would and should have been commenced upon diagnosis, may not necessarily have made a difference in the patient’s overall outcome, but may have given them the chance of a better outcome, then this has been considered a loss of chance.
MIPS resources
- Webinars
- Articles
[1]Nowotny, B. M., Loh, E., Lorenz, K., & Wallace, E. M. (2019). Sharing the pain: lessons from missed opportunities for healthcare improvement from patient complaints and litigation in the Australian health system. Australian Health Review, 43(4), 382-391.
