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Complaints to regulators drive surgeons’ medico-legal matters

Jan 23, 2017

Why do surgeons seek Avant’s support? Our data provides some clues and our experts provide insight into which matters are becoming more prevalent and why.

Avant has over 70,000 members and insures more than half of all doctors in Australia. Our size means we handle a broad range of medico-legal matters across the country and have extensive claims data to draw upon. Our scope of work allows us to attract the very best medico-legal experts across every relevant matter of law and jurisdiction and offer our members unparalleled defence. Looking at the new cases managed in the 2015–16 financial year highlights the different challenges doctors face across each specialty. Here we look at your area of practice and highlight the matters we have helped our members with last year.

The frequency of surgeons’ claims has increased by 18% over the average of the previous three years. The number of surgeon* members has increased over the last four years, however we have accounted for this increase by looking at cases per 1,000 members. Our data shows that one in five surgeon members had a claim last financial year.

Surgeons claims

Complaints to regulators increase

Avant supported more than 1,400 cases for surgeon members in the last four years. In the last year, 46% of these were complaints to regulatory authorities and 31% were compensation claims. In the last year, the number of cases involving complaints to regulators increased by 15%, which is well above the average for Avant members.

Andrew Vandervord, Practice Manager, Legal Professional Conduct NSW at Avant Law, believes there are a number of factors that may be influencing the rise in complaints to regulators. He cites the ease with which patients can make complaints as a factor as patients can now make a complaint online in all states and territories. ‘The media coverage of complaints could also be driving awareness among the public about the avenues available for making a complaint,’ he says.

Communication issues are a leading cause for complaint, as noted by the NSW Health Care Complaints Commission in its 2016 Annual Report: ‘although clinical care remains the largest allegation category, complaints about doctor-patient communication have increased more significantly than other categories, highlighting the importance of the doctor-patient relationship’. For tips and advice on improving communication visit the Avant Learning Centre.

Surgeons claims

Compensation matters increase

Although the frequency of compensation matters only increased slightly for surgeons last year, it represents the first increase in several years. Compensation matters are the second-most likely matter for which surgeons will seek Avant’s support, and the proportion of compensation matters handled for surgeons is one of the highest across all Avant members.

Commonly, compensation complaints concern a complication of treatment that had not been mentioned or fully understood, but then materialised. For example, a specialist cardio-thoracic surgeon member recently faced a negligence claim for allegedly failing to warn of risks before performing a bilateral endoscopic thoracic sympathectomy on a patient for hyperhidrosis (sweaty palms). Ultimately, the Supreme Court of NSW’s Court of Appeal dismissed the appeal against the member and ordered costs to be paid. The member’s rigorous consent process and history taking was fundamental in successfully defending the claim.

Documenting use of diagrams and patient handouts

Dr Joe Lizzio, Senior Medical Advisor, Avant, said that in respect to civil claims for compensation, surgeons are generally good at explaining the risks and complications of surgery to the patient. Many surgeons use models and diagrams to help explain the procedure to the patient and give the patient handouts such as the Royal Australasian College of Surgeons Treatment Information Guide.

“The trouble is that many surgeon members inform us that they have not kept a copy of the model or diagram, or a record of the version of the handout they gave to the patient in their medical records,” he said. “Many surgeons rely on their letter to the referring doctor as their documentation of the consultation. However, if a claim eventuates it can be very difficult to confirm that the patient received a copy of the diagram or handout, or that a model was used, if it was not documented,” he warned.

“Therefore, if you use a model or diagram during a consultation or give the patient a handout, it’s very important to indicate this in the letter to the referring doctor,” Dr Lizzio reminded surgeons. In our five-minute video Jo Montgomery, Senior Risk Manager at Avant, provides recommendations about your clinical and legal responsibilities when gaining consent and discussing material risk.

‘Asking patients, “What is the one thing you’re worried about?” and other similar open questions will help you in identifying risks material to the patient,’ she says. Contemporaneous notes should always accompany discussions about treatments and these should cover all aspects of the consent discussion such as:

  • benefit and potential complications of procedures
  • the risks and the alternative treatment options you discuss
  • any questions the patient raised.

Employment disputes growing fast

Although employment disputes remained relatively low as a proportion of surgeons’ claims, they represented the fastest growing type of claim by surgeon members. Employment disputes increased by 21% in the last year in comparison with the average of the last three years and are higher than for GPs or physicians. While Sonya Black, Special Counsel Employment at Avant Law said there were likely to be a variety of drivers, she has noticed that “hospitals and other employers are increasingly likely to manage employment issues via formal rather than informal processes. Employers are also more likely to report issues that arise in employment to a regulatory body, such as AHPRA, which typically results in an investigation by that body”.

At some time in your career you may be asked to attend a meeting with your employer as part of a disciplinary, performance management or other employment process. This short video explains your rights and what to expect. The Avant Learning Centre also has a range of resources to help doctors manage disagreements and conflict within the workplace. Performance management - tips and traps is a training tool for supervisors, or read Connect for more information on common employment issues.

For more information on these matters please visit the Avant Learning Centre or, if you require immediate advice contact the Avant Medico-legal Advisory Service on 1800 128 268.

*Surgeons exclude plastic surgeons, obstetricians and gynaecologists and ophthalmologists.

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