August 2011 Cases, News, Views & Research

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1 HEALTH LAW UPDATE August 2011 Cases, News, Views & Research ADDRESS LEVEL 4, TOOWONG TOWER Cardiotocographs problematic for clinicians and judges Dr Patel, continued Limitations of the peer professional practice defence Patient documentation Gen-Y nurses tipping the balance of power 9 SHERWOOD ROAD,TOOWONG BRISBANE, QUEENSLAND AUSTRALIA CORRESPONDENCE CAUSATION AND SUSPICIOUS CTG TRACES PO BOX 82, TOOWONG QUEENSLAND, 4066 Case note McCoy v East Midlands Strategic Health Authority [2011] EWHC 38 (QB) This decision was delivered on 18 January 2011 by the Honourable Mrs Justice Slade in the Queen s Bench Division of the High Court of England and Wales. BACKGROUND The 17 year old claimant was born on 22 March 1993 at 39 weeks gestation in poor condition, and now suffers from diplegic cerebral palsy (a brain injury effecting contralateral limbs) and learning difficulties. Damages were claimed in clinical negligence, pursuant to section 1 of the Congenital Disabilities (Civil Liability) Act On 17 March 1993, the claimant s mother (Ms Jones) attended Kettering General Hospital for monitoring after complaining of reduced fetal movements. Ms Jones was given a cardiotocograph ( CTG ) scan by Dr Lukshumeyah ( a Staff Grade Obstetrician ), who later concluded the CTG trace was satisfactory, and sent Ms Jones home with a kick chart to record fetal movements. The claimant contended that Dr Lukshumeyah negligently interpreted the CTG scan. It was argued that as a result of Dr Lukshumeyah s satisfactory finding, no further scans were undertaken, which would have likely shown a similar or worse fetal heart pattern, an indication of hypoxia. As a result of a repeated suspicious scan, steps would have been taken to bring about early delivery on 18 March 1993, which would have prevented the claimant suffering brain damage. The medical experts agreed that the damage to the claimant was caused by chronic partial hypoxia, which was the result of placental failure. They also agreed that the claimant was undamaged on 17 March 1993, and that the damage was highly unlikely to have occurred prior to 18 March AUSTRALIA TELEPHONE FACSIMILE In association with McCabe Terrill Lawyers Sydney & Melbourne Page 1 HBM Lawyers Health Law Update August 2011

2 PRINCIPAL ISSUE The principle issues which the Court had to address included: (1) What were the relevant features of the CTG trace, in particular, how many and at what time were decelerations shown? (2) Did Dr Lukshumeyah act negligently in categorising the CTG trace as satisfactory? (3) Had a further scan been performed on 17 March 1993, on the balance of probabilities would it have led to delivery before hypoxia caused brain damage? DECISION The Court found that Dr Lukshumeyah was negligent in his failure to carry out a further CTG scan on Ms Jones on 17 March However, the medical evidence showed that the damage suffered by the claimant was most likely to have occurred between 24 and 48 hours before the claimant s birth on 22 March Consequently, it was unlikely that a further scan on 17 March 1993 would have been suspicious as to lead her obstetrician to deliver her prematurely on the 18 March As such, the claimant was unable to establish that but for the doctor s failure to carry out a further scan on 17 March 1993 she would not have suffered brain damage. The claim was dismissed. REASONING Medical evidence was provided to help explain the CTG scan, and the relevance of any decelerations. Upon examining the scan, both experts (Mr Jarvis and Mr Porter) agreed that the baseline heart rate was satisfactory. Further, they accepted the definition of a deceleration in heat rate as being one of more than 15 (beats/minute) lasting for more than 15 seconds. Two such decelerations were found in the trace on Ms Jones on 17 March 1993; one lasting 30 seconds, and the other lasting at least 15 seconds. Four accelerations were also identified. In determining whether Dr Lukshumeyah was negligent in his interpretation of the CTG, the Court looked to what could constitute a normal CTG scan in the circumstances. A normal trace was defined as one with a baseline of 120 to 160 beats/minute with a variability of 5 to 25 beats/minute, with at least 2 accelerations with an amplitude of 10 to 15 beats/minute over a 15 to 20 minute interval. There should be no decelerations, except for the occasional sporadic mild variety. Mr Jarvis (obstetrician) stated that a failure to recognise the potential seriousness of the abnormalities on the CTG fell below the standard to be expected in the circumstances. He argued that it was not acceptable to allow Ms Jones to return home without further assessment, namely conducting an additional CTG, with delivery of the baby if there was any deterioration. In contrast, Mr Porter (obstetrician) believed that the accelerations present in the trace would lead the reasonable obstetrician to find the CTG reassuring, and it was therefore acceptable for Dr Lukshumeyah to send Ms Jones home. However, given that the heart rate was decreasing at the end of the scan, both experts agreed that Dr Lukshumeyah should have continued the CTG for a longer period of time. Dr Lukshumeyah admitted in hindsight it was unreasonable not to repeat the trace in the circumstances. The Court looked to the legal tests for establishing medical negligence as recognised in Bolam v Friern Hospital Management Committee [1957] 1 WLR 582, 586, and Bolitho v City of Hackney Health Authority [1998] AC 232, 241. This test states that a clinician (of any discipline) is not to be adjudged negligent if he has acted in a way considered reasonable by a reasonable body of his peers, provided always that the thinking that underpins his actions bears logical scrutiny. Justice Slade applied the Bolam/Bolitiho test and found that, based on the medical evidence, Dr Lukshumeyah acted negligently in describing the trace as satisfactory and in failing to re-start the CTG or admit Ms Jones for further scans on 17 March The Court then had to determine whether Dr Lukshumeyah s negligence resulted in the claimant suffering brain damage. The Court needed to determine whether a further trace on 17 March 1993 was likely to have been suspicious, or worse than the first. It was agreed that if the further trace had been properly regarded as normal no action to deliver the baby early would have been taken. Justice Slade found, on the balance of probabilities that as the claimant most likely suffered the damage 24 to 48 hours before her birth, it was not established that a second or resumed CTG on 17 March 1993 would have been suspicious so as to lead her doctor to deliver her on 18 March As such, the claimant was not able to establish that the negligence of Dr Lukshumeyah was the cause of the damage suffered by her. The claim was therefore dismissed. Page 2 HBM Lawyers Health Law Update August 2011

3 APPEAL BY DR PATEL R v Patel; ex parte A-G (Qld) [2011] QCA 81 BACKGROUND Earlier editions of Health Law Update have discussed this high profile prosecution and appeal. On 29 June 2010, Dr Jayant Patel (appellant) was found guilty of 4 counts of manslaughter and one count of grievous bodily harm. The charges arose as a result of surgery performed by the appellant whilst employed at Bundaberg Hospital between May 2003 and December He was sentenced to 7 years for each manslaughter charge and 3 years for the offence of grievous bodily harm, to be served concurrently. GROUNDS OF APPEAL Section 288 Criminal Code 1889 (Qld) The decision was appealed on a number of grounds, including whether section 288 of the Criminal Code 1889 (Qld) was properly interpreted by the trial Judge. The appellant argued that section 288 only applies in relation to the absence of skill or the failure to use reasonable care in the course of surgery, and it does not apply in relation to a surgeon s decision to operate or recommend surgery. The trial Judge found that the relevant act for the purposes of section 288 was not the performance of surgery, but rather the administration of surgical treatment. Surgical treatment includes not only surgery, but extends to the diagnosis of a condition and advice about that condition. Therefore, the duty imposed under section 288 may oblige a surgeon not to recommend surgery to a patient, or not to perform it even with the patient s consent. In coming to this definition of surgical treatment the case of Royston Cook (1979) 2 A Crim R 151 was referred to, where the term treatment was interpreted for the purposes section 298 of the Code. This case involved a doctor s failure to administer anti-coagulant drugs to a patient following surgery, who died after a blood clot blocked an artery. The issue was whether the non-administration of the anti-coagulant drugs amounted to treatment for the purposes of the act. Both Kelly and Sheahan JJ agreed that treatment extends to the whole management of the patient, to everything that is done in accordance with that management, and also to things which are not done as a result of a decision which is deliberately taken with regard to the management of the patient (at 154). The Court of Appeal accepted the Royston Cook definition. It was stated that treatment is not confined to acts which occurred after the commencement of surgery. The appellant s conduct in proceeding to perform an operation amounted to the administration of surgical treatment to each patient. The trial Judge concluded that the duty imposed by section 288 applied both in relation to surgery performed in a criminally negligent manner, and in relation to surgery that should not have been performed at all. Undertaking to perform it was, in itself, criminally negligent. The Court of Appeal highlighted that the interpretation of section 288 put forward by the appellant would have surprising, and inappropriate, results. For example, section 288 would then not apply in relation to a surgeon who conducted a technically competent operation to remove a patient s lung, but the surgeon had, by criminal negligence, misdiagnosed the patient s cold as lung cancer. Or, where a surgeon proceeded with a technically competent operation to which a patient consented, despite having formed the opinion during the operation that it was unnecessary or useless. The Court emphasised that the rule that statutes creating offences should be strictly construed applies only where the statute remains doubtful or ambiguous after applying ordinary rules of construction. They saw no such ambiguity in section 288. The trial Judge s interpretation of the section was confirmed. Section 288 applies both in relation to criminally negligent acts or omissions in the course of performing surgery, and criminally negligent acts or omission in performing surgery at all. Other grounds of the Appeal An additional 5 grounds raised by the appellant were interlinked, and concerned the prosecution s decision to alter the direction of its case. The alleged alteration was regarding allegations that the surgery was performed negligently, to a new case based on the negligent decision to perform the surgery in each instance. It was submitted that as a result of this change in direction, a large body of the prosecution s evidence became irrelevant and prejudicial to the accused. The Court found that the prosecution did not alter the direction of its case, and highlighted that the prosecution s case concerned both the negligence in Dr Patel s performance in surgery, Page 3 HBM Lawyers Health Law Update August 2011

4 as well as the negligent decision to perform surgery on the patients in the circumstances. Further, any evidence which was found to be irrelevant to the case was seen as unlikely to have prominence in the jury s deliberations. Several other procedural issues were raised, particularly regarding a lack of particulars relating to the prosecution s charges. The defence now argued that as a result, there had been a miscarriage of justice. The Court noted that the trial Judge raised his concerns regarding the lack of particulars in the prosecution s case, but the defence failed to address the issue until very late in the proceedings for tactical purposes. The Court looked to the comments of Gleeson CJ in Nudd (2006) 225 ALR 161 at and TKWJ v The Queen (2002) 212 CLR 124 at 128 to support its contention that tactical decisions considered with the advantage of hindsight to have worked to the disadvantage of the accused will not necessarily result in unfairness to the accused. No material irregularity or unfairness in the conduct of the trial was made out. The defence also raised the admissibility of the expert evidence given by Dr John Allsop (retired surgeon). The Court rejected this ground on the basis that no attempt had been made to identify any evidence which was beyond the scope of his expertise, or which was prejudicial to the appellant. It was also submitted that it was unfair for the Court to allow evidence outlining the restrictions on Dr Patel s practice in Oregon, USA. The Court rejected this submission, and found that the evidence was clearly relevant in establishing the negligence of the appellant, and that appropriate directions were given to the jury with regard to the limitations of this evidence. Appeal against the sentence Both the appellant and the Attorney-General appealed against the 7 year concurrent terms of imprisonment imposed on each of the 3 manslaughter convictions and the 3 year concurrent term of imprisonment imposed on the grievous bodily harm conviction. The Attorney-General submitted that the sentences failed to reflect adequately the gravity of the offences. The appellant contended that the sentence was manifestly excessive. The prosecution highlighted the serious nature of the offences committed by Dr Patel, as well as his history in the US. The defence responded by stressing Dr Patel s cooperation with authorities, and the hardship he has faced during the 2 years he has lived in Australia during his trial. In the first instance, Justice Byrne highlighted that as a result of previous disciplinary actions, Dr Patel knew that his level of surgical competence required him to obtain a second opinion before embarking on major surgery. Dr Patel failed to inform Bundaberg Hospital about the orders he was subject to in the US. On appeal, the Court confirmed that the appellant s offending was grave, and the denunciation was an important factor in sentencing. Moreover, although the appellant did not intend to cause harm to his patients, his judgment was so thoroughly reprehensible and involving such grave moral guilt, the jury confirmed that he should be punished as a criminal. However, the appellant s age, time already spent in prison, and lack of prior convictions, needed to be taken into consideration. All appeals against the original sentence imposed were dismissed. THE PEER PROFESSIONAL PRACTICE DEFENCE Dr Patrick Mahar and Dr Justin Burke wrote an article entitled What is the value of professional opinion? The current medicolegal application of the peer professional practice defence in Australia which appeared in the 7 March 2011 edition of the Medical Journal of Australia. BACKGROUND The peer professional practice defence has been legislated in all States throughout Australia, excluding the Australian Capital Territory and Northern Territory. Section 22 of the Civil Liability Act 2003 (Qld) defines the defence as being when a professional acts in a way that was widely accepted by peer professional opinion by a significant number of respected practitioners in the field as competent professional practice. Similar definitions can be found in the legislation of other States. In order to utilise this defence, both parties will call medical experts to give evidence to assist the Court in determining whether the doctor has acted according to widely accepted professional practice. Page 4 HBM Lawyers Health Law Update August 2011

5 This defence is a codification of what is known as the Bolam principle. This was established in the English case of Bolam v Friern Hospital Management Committee [1957] 2 All ER 188. In this case, a patient fractured an acetabulum during electroconvulsive therapy. The doctor and hospital were not found to be negligent because they acted in accordance with practice accepted at the time as proper by a responsible body of medical opinion. The peer professional practice defence marks a departure from the previous position established by the High Court of Australia in Rogers v Whitaker (1992) 175 CLR 479. In this case the Court decided it was not solely up to the medical profession to determine what standard of care was required of doctors. Instead, it was for the Court to determine the relevant standard of care, after receiving the assistance of expert evidence. The current legislative provisions have realigned themselves with the original common law position. The Courts rely heavily on the medical profession to determine the necessary standard of care in medical negligence cases. CURRENT LIMITATIONS However, 2 recent New South Wales cases have highlighted some important limitations on the availability of this defence for doctors. In Hope v Hunter and New England Health Service [2009] NSWDC 307 a patient underwent surgical removal of a retinacular ganglion on the volar aspect of the flexor tendon on his left middle finger. He claimed that during the operation he suffered an unexpected division of the digital nerve and artery of his left middle finger which resulted in a lasting disability. Two well qualified experts gave conflicting evidence as to the standard required by the doctor. In New South Wales, the peer professional practice defence cannot be relied on if the Court considers the opinion to be irrational. Similar exceptions exist in all States. The medical opinion provided in this case was considered to be irrational, and unrepresentative of the peer professional opinion. As a result, the defence was not successful. The Court considered the following in its reasoning. Firstly, the defendant had completed much of his training in the UK and US. As such, it was considered that the evidence which he gave was not necessarily indicative of the professional practice in Australia. Secondly, it was revealed that one of the expert witnesses for the defence had consulted a colleague for opinion, and details of her practice concerning ganglion excision. Consequently, the Court believed that the witness was in sufficient doubt to warrant consulting another practitioner, which reduced the credibility of her opinion. [Comment the writer does not find it unusual that in certain circumstances medical practitioners would informally confer with colleagues over such issues.] This is of particular relevance to many medical practitioners, and should be kept in mind when clinicians are considering relying on the professional practice defence. It is not uncommon for clinical decision making in the face of uncertainty to be supported by consulting colleagues, and, further, training abroad is not uncommon. In the case of Melchior and Ors v Sydney Adventist Hospital Ltd and Anor [2008] NSWSC 1282, the plaintiff brought an action in negligence against a doctor after a patient was not administered post-operative enoxaparin after an Achilles tendon repair. The patient developed a fatal pulmonary embolus. The medical experts disagreed on several critical issues regarding post-operative administration of enoxaparin, and, as a result, the Court found that the peer professional practice provisions were in operation, and the orthopaedic surgeon was not found negligent. However, the plaintiff claimed that the surgeon should still be liable, as he failed to warn the deceased of the risk of thromboembolism. It was argued that the doctor knew, or ought to have known, that the deceased was at risk of forming an embolus, and, therefore, should have been warned of the risk in accordance with section 5P of the Civil Liability Act 2002 (NSW). However, this issue was never decided by the Court, because the amended claim was submitted late and therefore excluded on procedural grounds. Nevertheless, it is necessary for practitioners to be aware that the peer professional practice defence cannot be relied on when the case involves a failure to warn. In such cases, the standard of care reverts to the stricter common law standard established in Rogers v Whitaker. CONCLUSION In summary, in order for a practitioner to rely on this defence they need to establish that they acted in a manner considered to be competent professional practice by a significant number of medical practitioners in the relevant field. Whilst this is a much more favourable legal position for Australian doctors than that which existed previously, there are 2 serious limitations to the applicability of this defence. Firstly, the Court has the ultimate discretion to consider the Page 5 HBM Lawyers Health Law Update August 2011

6 medical opinion to be irrational or unreasonable. Secondly, no defence is available when the claim is based on a doctor s failure to warn about the risk of medical treatment. IMPROVING DOCUMENTATION AND PATIENT OUTCOMES The April 2011 edition of The Queensland Nurse included an article by Dr Kim Forrester entitled A nuts and bolts guide to effective patient documentation. Documentation and record keeping is an important area for clinicians, patients, and legal practitioners, and Dr Forrester identifies 14 essentials for effective documentation. Health care records serve a number of important functions including: - An account of the ongoing care and treatment of the patient. - A source of research data. - A means of communicating information about patient care and treatment between health professionals. - A potential form of evidence in legal action. In Queensland there are no legal requirements as to the format of medical records. There are, however, the professional regulatory authority guidelines administered by the Nursing and Midwifery Board of Australia, providing information on how to ensure health care records are of an appropriate standard (National Competency Standards for the Registered Nurse, Fourth Edition, January 2006). The guidelines and policies of the employing institution, and relevant case law, also provide some guiding principles as to the process of documentation and the information to include in health records. The following are some helpful tips to assist with endeavours to ensure a high standard of health care documentation. Whilst Dr Forrester s guidelines are directed at nurses, they have application to all health care providers. Keep information clear, concise and accurate Timely and accurate information is significant not only for the transfer of information between health professionals, but also where the records become evidence in legal proceedings. For example, comments written about care given, the condition of a patient and their demeanour or state of mind may be used at a later time to provide evidence of an allegation of negligence, malpractice, or the extent of damage and disability suffered by a patient. The timing of documentation The timing of information recorded by nurses and midwives is often dependent on a number of factors such as the guidelines and policies of the employer, the staff levels and mixed workloads. Regardless, effort should be made to ensure that all health care records are updated in a timely manner. Contemporaneous and chronological Documentation should be contemporaneous with the events and recorded chronologically. This helps ensure greater accuracy from the writer, and encourages the Court to regard the record as a true reflection of events. It is generally not acceptable to go back and add more information to medical records. However, if this needs to be done, the writer should clearly indicate the date and time of the addition or amendment. Record all routine observations and assessments If there is no entry recording a change in the condition of a patient the Court may infer that no observations have been taken. It is therefore necessary to record/chart even routine observations and assessments. Clinically significant events should be documented and charted. All entries should be dated, timed and signed It is prudent to ensure that all entries are dated, timed and signed by the writer. The use of a 24 hour clock is an effective way of ensuring there is no confusion between morning or afternoon logs. Record all information legibly Accurate health records are of little value if they cannot be read or understood by others. Only write about what you have witnessed or assessed yourself Avoid writing about what has been written or assessed by others. If a patient relays an incident to you, ensure that you make it clear that it is the patient s account of events. If you are recording information regarding work done by others, use the same principle. Page 6 HBM Lawyers Health Law Update August 2011

7 If using paper-based records, number and name each page Each page of a patient s medical records should be identified by name and numerical identifier. Abbreviations and medical terminology Ensure that all abbreviations conform to the particular institution s policy, and use medical terminology whenever appropriate. Avoid appears and apparently Words such as appears and apparently should be avoided. For example, the description appears drunk does not provide any objective or factual information. It would be preferable to write accurate, specific and factual information, such as the patient s speech was slurred and he was walking with an irregular gait. Never chart or write a report on a patient in advance If an error is made with recording information, follow the institution s policy or protocol It is common that the procedure will require you to draw a line through the erroneous material, identify it as having been written in error, date and initial it. Errors should never be torn out, removed or erased. As a result, experienced nurses must learn to work effectively with Gen-Y and not buy into popular misconceptions about their work ethic. McQueen believes the key to obtaining the best from Gen-Y nurses is to understand their perception of life. He provides 3 strategies for engaging Gen-Y nurses. Firstly, gain commitment and loyalty, by building a strong relationship. McQueen considers that Gen-Y nurses will not be loyal to companies or mission statements, but will be loyal to people and relationships. Secondly, focus on outcomes, not process. McQueen sees Gen-Y nurses as turned off at work by unnecessary structure, excessive bureaucracy, and red tape. The third strategy is to utilise different methods for training and coaching purposes, such as explaining how things apply to life and sharing experiences, rather than lecturing on rights and wrongs. Gen-Y learns better when things are contextualised, as opposed to the teaching of facts and statistics. McQueen describes Gen-Y as an ambitious generation, who have different priorities to older generations. Emphasis is placed on a balanced lifestyle, and avoiding stress negatively impacting on relationships and health. Write all paper-based records in ink Always read the medical records Most hospitals and health care facilities provide for a verbal handover (in person or via recordings) at the change of shift. However, this is only a summary of the events which have occurred during the preceeding shift, and to ensure accurate and comprehensive information, the patient file should be reviewed. We welcome feedback on our Health Law Update. HBM LAWYERS HEALTH LAW TEAM: Lynton Mortensen, Managing Partner John Connolly, Partner GENERATIONS IN NURSING Social researcher Michael McQueen spoke at the International Congress on Innovations in Nursing in Perth in May In his view the current shortage of nurses means the future of nursing rests in Generation Y (those born from around the mid-1970s to mid-1990s). Currently the average age of nurses is 44.1 years, with 35% of the workforce made up of nurses over 50 years of age. Allison Inglis, Partner Christopher West, Special Counsel Melissa Fraser, Lawyer Page 7 HBM Lawyers Health Law Update August 2011

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