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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