anne shortall, slater & gorden lawyers - medico legal issues in the care of pressure injury...
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Project title Date Month 2014
Medico Legal Issues in the Care of Pressure
Injury Patients
Anne Shortall
Principal Lawyer – Melbourne
September 2014
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The information provided by Slater & Gordon in this presentation is
general in nature and should not be relied upon as legal advice.
Legal advice should be sought for specific matters.
Disclaimer
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Medical professionals’ perception of their medico-legal risk is much
greater than the reality. There is the belief that ‘everyone will be
sued once’.
The risk of being sued
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55 million plus Medicare services per year
1.3 million plus hospital admissions per year
100,000s health services provided per year
1,000s of avoidance adverse events
In 2010/11 there were approximately 240 new medical negligence
cases issued in the County Court
On average, 200-250 new cases in Victoria per year
One third to one half against public health services
Repeat offenders
In Victoria
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In the County Court of
Victoria in 2012/13 of
3,545 damages/
compensation claims
issued only 224 related to
medical negligence that’s
about 6%
Risk of Being Sued
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Medical negligence cases in general are rare when taking into
account the number of clinical services provided.
In particular cases relating to pressure injuries are rare.
It is concerning to speculate that elderly patients residing in nursing
homes who develop pressure injuries may have no capacity to seek
legal advice nor assistance from family members and may never
pursue potentially valid claims
Risk of Being Sued
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Slater and Gordon gets 30-50 medical negligence inquiries a week:
Of those, 1-2 in 10 get an appointment. The rest are provided with
information about the law and alternative means to address their complaint.
Of those who get an appointment, 2/3 become active investigation files.
Of the opened files, 1 in 4 become active cases.
All of our initial advice is free.
Under Australian law, lawyers are not permitted to charge fees on a
percentage basis.
Risk of Being Sued
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In order to prove a claim in medical negligence it is necessary to show
the following:
Duty - plaintiff must prove that the medical professional owed them
a duty of care. The standard of care expected is that of a
reasonably competent practitioner of that specialty.
Breach of duty – the plaintiff must prove that the standard of care
they received fell below the standard of a reasonable practitioner
and;
Causation - that the breach of duty caused the injury.
Damage – the plaintiff must show that they have suffered sufficient
damage related to the negligence to justify making a claim.
What is negligence
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Pursuant to Section 59 of the Wrongs Act a professional is not
negligent in providing a professional service if it is established that
the professional acted in a manner that:
• at the time the service was provided;
• was widely accepted in Australia by a significant number of
respected practitioners in the field (peer professional opinion);
and
• as competent professional practice in the circumstances.
Onus of proof: the plaintiff (the person who brings a case against
another in a court of law) bears the onus of proving the elements of
a medical negligence claim. If they are unable to prove all
elements, the claim will fail.
Peer Professional Opinion
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Health professionals are also required to inform a patient of risks
associated with their treatment. The Wrongs Act states that doctors
will satisfy their duty if he or she “takes reasonable care in giving
that warning or other information”.
A patient should be warned about any complications associated
with a treatment that a reasonable patient would wish to know about
(‘material risks’). This does not mean that a patient needs to be
warned about every risk that may occur, just risks the patient would
likely attach significance to. If the patient requests more information
this should be provided.
The peer professional defence does not apply to failure to warn
claims.
Failure to Warn
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When obtaining consent for treatment/ interventions:
Must warn of material risks;
Objective test first - a risk is material if a reasonable person in the
position of the patient would attach significance to it;
Subjective test - would this particular patient attach significance to
it; and
Documentation in the record: - detail advice, warning, questions,
answers and decision. Take care with reliance on pro-forma
consents – detail additional background notes.
Consent
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The primary purpose of a medical negligence claim is to recover
monies as compensation;
A claim cannot be usefully pursued unless there is in fact a loss of
some kind whether for: medical treatment expenses; care; wage
loss; or, non-economic loss (sometimes called general damages)
for pain, suffering and emotional distress or for mental harm;
To pursue a claim for damages for pain and suffering it is necessary
to establish a significant injury other than in an assault/sexual
assault; and
The amounts allowed for wage loss and for some types of care are
capped.
Compensation
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The definition of a significant injury for a medical negligence claim is:
a permanent impairment of greater than 5 percent of the whole
body pursuant to the AMA guides ( 4th ed.); or
a psychiatric impairment greater than 10 percent of the whole body
pursuant to the guides.
The Guides are often not fair or reasonable in the way in which
impairment is assessed.
What is a significant injury
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If applied to pressure injuries the permanent impairment will relate
to scarring/disfigurement or any other permanent injury flowing from
direct complications arising out of pressure injuries;
The AMA Guides ( 4th ed.) relating to scarring refer to how the scar
impacts on activities of daily living;
If the scar involves the loss of sweat glands, hair/nail growth or
pigment formation and how this impacts on activities of daily living;
If the scar causes loss of range of motion or involves peripheral
nerve dysfunction this can be included in the assessment;
Significant Injury in relation to Pressure Injuries
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Examples of injuries arising as a direct result of pressure injuries
may be:
• Extensive necrotic damage resulting in amputation of a limb
• Development of sepsis resulting in permanent renal or
neurological injury
These types of injuries will result in an impairment of 6% or more
depending on severity and permanency.
However it may be the case that relatively significant scarring does
not result in a level of impairment of 6% or more if not impacting on
activities of daily living.
Significant Injury in relation to Pressure Injuries
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Awards for general damages: the cap for damages for pain and
suffering in Victoria is approximately $495,000. This would apply to
a case where a person sustained quadriplegia as a result of
negligence.
Compensation for loss of earnings the maximum amount per week
is three times average weekly earnings.
Payments for ‘voluntary’ services. In catastrophic injury cases the
cost of care is often the highest portion of the claim for
compensation and can amount to millions of dollars for a young
child with severe disabilities.
Types of damages that than be claimed
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Four main themes emerge:
The need for an explanation - to know how the injury happened and
why.
Concern with standards of care - both patients and relatives wanted
to prevent similar incidents in the future.
Compensation - for actual losses, pain and suffering or to provide
care in the future for an injured person.
Accountability - a belief that the staff or organisation would have to
account for their actions.
Why people approach lawyers
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All of the relevant medical records are obtained.
An initial analysis is made.
Medico-legal opinion is obtained. You may obtain very different
opinions from independent experts in relation to the same set of
circumstances. Usually the reports obtained by lawyers acting for the
Defendant differ greatly from those obtained by lawyers making a claim
for an injured person.
In a case relating to a pressure injury an independent opinion would be
obtained from an expert such as a nurse experienced in wound
management, a geriatrician in relation to an elderly patient, possibly a
vascular or plastic surgeon as to the treatment provided/incident
causing the injury.
How a medical negligence claim is investigated
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Claims are never pursued without supportive medico-legal evidence.
Pursuant to the Civil Procedure Act a lawyer instituting a claim must
sign a certificate indicating that the claim has a proper basis and it
could be considered that signing such a certificate without supportive
expert evidence may be a breach of the Act which could have
significant consequences in relation to professional misconduct issues
How a medical negligence claim is investigated
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In Victoria you have three years, from the date you become aware that
you have been injured as a result of negligence or fault, and the injury
is significant enough to justify bringing a claim.
If the person is an adult with a disability or a child, the time limit is 6
years.
There have been cases that have held that the time limit ran from the
date a person’s GP advised them that the treatment they had received
from a surgeon was inadequate and in another case from the date that
an independent opinion had been obtained by solicitors indicating that
the treatment had been negligent.
A claim cannot be brought more than 12 years after the date of the
injury occurred regardless of when the person became aware that the
injury occurred as a result of negligence.
Time Limits for Bringing a Claim
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An apology has never been a legal admission of guilt and the
Wrongs Act now contains a section which stipulates that ‘an
expression of sorrow , regret or sympathy’ is not an admission of
negligence.
Despite this, many health professionals continue to be reluctant to
apologise fearing that this will be considered to be an admission of
negligence. This attitude often angers the injured person and
results in legal advice being sought.
Apologies
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The Court now orders all claims to go through a compulsory
mediation process and there is a very high rate of settlement in the
vicinity of 95% or more.
Medical negligence cases are not pursued without strong support
from independent experts that the treatment was inadequate and
most medical indemnity insurers understand that the costs of
running a case should be avoided if there is reasonable evidence of
negligence.
In addition, most people bringing claims want to avoid the
significant expense risk and stress of proceeding to trial
Rates of Settlement
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The Health Services Commissioner:
Is appointed to investigate complaints about medical, and other
health, treatment and conciliates many such complaints by way of
meetings between doctors, health professionals and patients and
obtaining letters of explanation and apology from treaters.
The Commissioner cannot order a health professional or hospital to
pay compensation but can for instance resolve a dispute by way of
an agreement to pay medical expenses or an apology being
offered.
Other Ways Medical Negligence can be Investigated
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Australian Health Practitioners Regulation Authority (AHPRA):
A Federal body that has now taken over from the various medical
practitioners board which previously existed in each state to
discipline doctors for misconduct.
This body now also regulates nurses, allied health workers such as
physiotherapists including social workers, psychologists and
pharmacists.
AHPRA has the power to deregister health professionals, force
them to attend counselling and impose other restrictions on their
ability to practice.
Other Ways Medical Negligence can be Investigated (cont.)
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Coroners Court:
In the event of the death of a person as a result of negligence, the
Coroners Court may hold an inquiry into the death and require
health professionals and other relevant witnesses to give evidence
as to the circumstances of the death.
The Coroner can make recommendations as to how systems can
be changed to avoid the risk of injury or death to other people and
can take steps to ensure that the recommendations are put in place.
For an elderly person with many serious medical issues who dies of
complications such as sepsis related to a pressure sore it may be
that the cause of death may be thought to be related to concurrent
medical issues
Other Ways Medical Negligence can be Investigated
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Communication and listening are the biggest issues. In some form
or other they are the fault in the majority of medical negligence
claims. Failure to get a proper history.
A failure to revisit the diagnosis, ‘think outside the box’.
Failure to exclude the critical – attitude that ‘most of the time it isn’t
a heart attack’.
Beware the patient with a complex set of symptoms and the patient
that ‘cries wolf’.
Themes that Repeat
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Administrative failures, particularly the failure to follow up results or
not properly reviewing results. This is especially a problem in the
hospital system with results that arrive after the patient has been
discharged. Also failure to review tests results.
Systemic problems.
Resourcing limitations and availability of staff.
One of the biggest issues is continuity of care.
Themes that Repeat
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Good records are essential for all practitioners no matter what the
practice setting.
The treatment that you may be asked to recall if a case is pursued
as a health practitioner is likely to have occurred many years
previously and without proper notes is likely to be extremely difficult
to recall accurately.
The Importance of Medical Records
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Notes from allied health and nursing staff are almost invariably
legible, systematic and provides the most detailed summary of the
patient’s condition. This is in contrast to the majority of doctors.
It can also be an area of vulnerability for some health professionals
with very busy workloads.
When recording, it is important to be clear about the presenting
issue, the assessment of the issue, the planned intervention or
what was provided, the reason for this and the outcome. Where
relevant, also, refer to your organisation’s documentation policies
and guidelines.
The Importance of Medical Records
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Developing Protocol/Guidelines:
Where clinical practice guidelines are available failure to adhere to
them may be regarded as unreasonable unless there are
compelling clinical grounds not to adhere to the guidelines.
Any reasons as to why the guidelines cannot be complied with
should be clearly documented in the medical records
Initial Risk Assessment:
Its important to ensure that the record indicates:
An initial categorization of the patients risk of developing a pressure
injury
A strategy to prevent pressure injuries
Precise notes as to any existing pressure injuries on admission
The Importance of Medical Records
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Accurate documentation as to implementation of risk prevention
strategies
Ensure proper records in relation to care implemented and strategies
undertaken to prevent pressure injuries and treat the injuries when
they occur.
Accurate documentation as to wound appearance and wound
care following development of a pressure injury
Detailed description of the appearance of the wound and
interventions
Progress or deterioration
Photographs? Consent.
The Importance of Medical Records
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All of theses issues will form the basis of a defence if the claim
proceeds;
Or may mean that the independent expert will indicate that the care
has been reasonable so that a claim will not even be commenced
The Importance of Medical Records
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Mr X was a 75 year old diabetic with three small ulcers on the toes
of his left foot which had been present for several months when he
was admitted for a cholecystectomy. He was legally blind.
The ulcers were noted in podiatry notes from another institution
He was alert and living independently with his wife prior to his
admission
He became very confused post operatively and was unsteady when
mobilising
Case Summary
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A portion of the Clinical pathway under the subheading
“Skin/Pressure Risk was initialled by nursing staff daily but there
was no description of the ulcers on his toes which were present on
admission
He was assessed on admission as low risk for pressure injuries and
falls
Two days post operatively he had a fall. Whilst sitting out of bed to
eat his dinner he got up unassisted and his meal tray fell to the
floor. He lacerated his feet on broken glass in the fall
Case Summary
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The fall was not witnessed
A nursing note indicates that a dressing was applied to superficial
lacerations on his legs
There is no notation of any dressings or observations of the
lacerations until three days after the fall when the doctor notes
chronic gangrenous changes in toes of both feet. A nursing note
states that Comfeel was applied to a blister on his left heel
On the fourth day after the fall the notes indicate chronic distal
ulceration on the left toe, the wounds were not clearly infected,
there was a pressure area on the left heel and a necrotic area over
his right big toe with superficial skin breakdown
Case Summary
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Another note that day indicates many necrotic and sloughy areas both feet,
large pressure area left heel, nurse in charge aware and will follow up,
patients family advise all areas to feet/heel new, wedge for heels,
sheepskin, encourage side lying.
The Wound Assessment and Management Record on that day has a
detailed note and description as to three wounds on Mr X’s feet and various
dressings to be applied and that a wound swab has been taken.
An x-ray 5 days after the fall indicates that it is difficult to exclude
osteomyelitis and a doppler study indicates extensive peripheral vascular
disease particularly on the left side.
6 days after the fall a wound care chart is commenced. The wounds in both
feet were necrotic.
Case Summary
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Mr X was transferred to a hospital closer to his home two weeks
after the fall with a large pressure ulcer on his left heel which
required debridement and multiple toe ulcers.
He was discharged home three days later with daily dressings to be
done by district nurses.
He also attended his GP Clinic for dressings and assessment
during this period of time.
He was admitted to hospital for debridement of his left foot wounds
10 weeks after the fall and 12 weeks after the fall underwent a left
below knee amputation.
Case Summary
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The nurse who provided an opinion on behalf of Mr X indicated:
Mr X should have been categorised as a high falls risk and during
the immediate post operative period whilst confused should have
had a nurse special assigned to observe him
When admitted the ‘Assess Falls Risk’ and ‘Pressure Risk’ boxes
were ticked as no risks identified. He should have been indicated to
have a high falls risk and high pressure risk
Expert Evidence
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Due to Mr X’s chronic medical history, recent increasing immobility
and high risk of exacerbation of ulcers on his toes an alternating
pressure air mattress should have been ordered for the immediate
post operative period
It was not appropriate to leave Mr X sitting in a chair to have his
meal as he was confused, legally blind, recovering from an
anaesthetic and had a morphine pump
Expert Evidence
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It will be necessary to establish that the issues relating to his care in
relation to the fall and pressure injuries caused the amputation by
way of an expert opinion from a vascular surgeon.
The surgeon will need to indicate that it is more likely than not that if
he had not had the fall and had adequate pressure care and wound
management he would have avoided the need to amputate.
Expert Evidence
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It may be that Mr X may have had his leg amputated due to his
severe vascular issues whether or not he received negligent care,
the amputation may not have occurred at all or the need for the
amputation may have been significantly accelerated by negligent
care.
Understandably Mr X’s family attribute the need for amputation to
the events which occurred during the admission.
Expert Evidence
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What do you think about the care provided to Mr X?
Was it reasonable?
You are the Experts
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Questions?
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Thank you
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