Introduction to Medical Negligence Claims and Complaints for Clinicians – Mitigating and Limiting Risk Factors of Practice

Warren Buffet once aptly said that “It takes 20 years to build a reputation and five minutes to ruin it.” For all clinicians, starting as a junior or even at a senior level of experience, it is absolutely integral to mitigate and limit risk factors concerning your practice. This article will attempt to provide a guide to clinicians, whereby they can actively limit their risk to medico-legal claims and complaints through very simple day to day activities. This article will focus on clinicians within the New South Wales jurisdiction, but is applicable to all clinicians within Australia.


Background Information

If you’ve received a complaint as a clinician, you will generally be assessed by the Health Care Complaints Commission (“HCCC”) as they are the regulatory body who works in conjunction with the Health Professional Councils Authority (“HPCA”) to determine how a complaint will be dealt with. The HPCA is comprised of the following 14 Councils:

  • Aboriginal and Torres Strait Islander Health Practice Council of New South Wales
  • Chinese Medicine Council of New South Wales
  • Chiropractic Council of New South Wales
  • Dental Council of New South Wales
  • Medical Council of New South Wales
  • Medical Radiation Practice Council of New South Wales
  • Nursing and Midwifery Council of New South Wales
  • Occupational Therapy Council of New South Wales
  • Optometry Council of New South Wales
  • Osteopathy Council of New South Wales
  • Pharmacy Council of New South Wales
  • Physiotherapy Council of New South Wales
  • Podiatry Council of New South Wales
  • Psychology Council of New South Wales


Prior Steps to Complaints and Claims for Clinicians

There is a general misconception that a clinician who apologises for a mistake or error to a patient will amount to an admission of liability. It’s often quite the opposite effect, as apologising to a patient and working to resolve the problem by way of solution generation will often lead to positive outcomes.

Current legislation found on this point is within Section 69 of the Civil Liability Act 2002 (NSW) which notes that “An apology made by or on behalf of the person… does not constitute an express or implied admission of fault or liability… is not relevant to the determination of fault or liability”. However, there are limitations as to when an apology is appropriate. It is noted that there are exceptions to the rule regarding apologies; clinicians should frame their apologies in a particular form. For example, an apology which is framed as “I’m sorry that you feel that you have been waiting for a long period, we will do our best to ensure you are seen as soon as possible” rather than “I’m sorry your wait has been long, please wait your turn” will generally ensure better patient satisfaction.

I recall during my training as a student clinician, that my tutor had informed me of a story whereby she was instructed to complete an orthodontic extraction and had extracted the wrong tooth. Fortunately for my tutor the patient was extremely understanding and was offered an immediate apology with treatment to amend the mistake, provided free of charge.
On that point, it is human to be imperfect. You will make mistakes in your career, the prior steps you take before a complaint or proceeding is commenced will often determine the course of events and therefore where your matter goes.

Anticipating a Claim or Complaint & Initial Steps

There are circumstances where you will anticipate a claim or complaint, an example would be when you have delivered verbal news of a poor prognosis and a patient or family members have expressed their desire to “take this further”. It can be disheartening to hear this, especially in circumstances where your best efforts have resulted in undesirable and unavoidable patient outcomes.

The initial steps to take when anticipating or receiving a claim/complaint are:

  • Ensure you have written contemporaneous patient notes, detailing all relevant conversations and all necessary information that you have been taught within your field of practice.
  • Discuss the issue with a colleague, see if they would consider your approach to have been an acceptable standard within your field of practice.
  • Contact your association for support and guidance. Major professional associations such as the Australian Medical Association, Australian Dental Association and NSW Nurses and Midwives’ Association exist to support their respective profession and can provide over the phone guidance and support.
  • Contact your professional indemnity insurer. Your insurer, much like your professional associations, will offer support and guidance when dealing or anticipating a complaint or claim. It is integral you speak to your insurer at first instance as it is often stated within your policy of membership that you inform them as soon as practicable. This will allow them sufficient time to assist you further. This is particularly important when you have been notified of any issues by a patient which would lead you to anticipate a claim or complaint.
  • Seek independent legal advice.


HCCC and HPCA Assessing Complaints

If you are a registered practitioner through the Australian Health Practitioner Regulation Agency (“AHPRA”); an assessment from the HCCC will involve an officer who, in most instances, will receive a complaint and write to your registered AHPRA address and invite a response from you, the provider of health care services.
This assessment can go one of many ways, it could result in the complaint being discontinued, referred to the HPCA for their management or Investigated by the Commission. It is important to note these outcomes are non-exhaustive, but are the pathways for a complaint to be dealt with. The process is different for non-registered practitioners, this generally applies to beauticians or massage therapists for example.

Medical Negligence Claims

If you have received a letter of demand or statement of claim, you should contact a legal representative or your insurer and seek assistance as soon as possible. Ensure you keep copies of all documents and provide your insurer or legal representative with copies so that they may respond or prepare for any Court proceedings accordingly.

It is generally accepted as good practice to make attempts outside of Court to resolve a dispute and can often result in a lower overall cost, rather than going through litigation which can have considerable costs and often amount to more than the claim itself, in some cases.

Contemporaneous Patient Notes

Writing patient notes as soon as practicably possible is an important standard of practice that all clinicians comply with. Your notes should be comprehensive, contemporaneous and legible if handwritten.

Some of the most important evidence considered are patient notes, particularly during the assessment of complaints at the HCCC and during medico-legal proceedings/claims. If your standard of notes are not at an acceptable level, liability may be implied and you can be found to have ‘departed from acceptable standards’. This incurs potential reprimand by your regulatory HPCA Council, if you’re a registered practitioner, or may lead to HCCC initiated proceedings.

Acceptable times differs with each health discipline, in the field of dentistry for example, records made at the end of each session or at the end of the day would not be considered contemporaneous. However, it is my understanding that in the field of nursing, it may not be unusual for notes to be written at the end of a shift; however, this standard of practice is undesirable when assessing a matter that relies heavily on timing and can bring into question the credibility of the notes themselves due to the passing of time.

Communication

One of the root causes for complaints and medico-legal claims is based on poor patient/clinician communication. Communication is something that we take for granted and can take time to master as a skill, especially when most clinicians are so focused on delivering positive health outcomes, we can lose focus on other aspects of care, such as having a good bedside manner.

Consider implementing the following into your interactions with patients:

  • Utilise introductory statements and explanations on what the patient can expect, talk them through procedures.
  • Increase your rapport with patient using humour and laughter, when appropriate.
  • Ask for a patient’s opinion, gauge their understanding by asking them to summarise the discussion and encourage them to discuss in an open dialogue with you.
  • Maintaining appropriate eye contact and reading body communication.
  • Attaining and maintaining a fluid conversational flow.

For most of us, not even solely within the health field, it can take considerable effort and energy to be consciously aware of one’s own communication habits. But developing strong communication skills will lead to rapport building, which reduces your risk of a complaint or medico-legal claim and also builds on patient satisfaction. For those who run their own practice, this will likely translate to more prompt payments of billings, as the patient will feel more value in their time with the treating clinician.

Conclusion

When facing a complaint or medico-legal proceedings, remain calm and collected. Follow the steps mentioned within this guide and ensure you are assisted and protected. Don’t be afraid to apologise to patients, when appropriate and warranted. Record notes as soon as possible and be comprehensive in your recording, note down conversations and ensure your professional ‘short hand’ or vernacular is understood by colleagues. Always work to improve one’s communication skills and build rapport with patients, this will be a huge mitigation to the risk of receiving a complaint or medico-legal claim.

If you require any assistance with a patient complaint, medical negligence claim or general legal queries, please don’t hesitate to contact Mitchell Klievens at our Sydney office on 02 8325 1520.