Family complaints – relatives take legal action

27 May 2019 | Silvia Bastianon, BEc, LLB, Senior Claims Manager, Medical Defence Services, NSW

Supporting a loved one as they are treated for a serious health issue can be stressful and emotionally demanding for family members. Unfortunately their heightened emotional state can occasionally result in illogical or unreasonable expectations of the treating team.

Two members have recently been the subject of complaints from families, the first of which stemmed from a relative not being involved in a care decision and the second involving the relatives claiming mental harm due to the member’s alleged negligence.

Case one: common treatment causes conflict

The patient presented to a respiratory physician with lung cancer and subsequently underwent a right lower lobectomy. Despite numerous attempts to encourage the patient to undergo chemotherapy post-operation, this was declined by the patient in favour of an alternative remedy on the advice of their spouse.

A year later the patient had metastatic lung cancer and palliative care was arranged in a local rural hospital. While the patient’s son was visiting during the weekend, a nurse entered the room and asked if it was okay if she provided the patient with morphine (routine treatment for palliative care patients) or whether they should come back later. The son said that it was fine for the nurse to administer the morphine, and the patient appeared lucid at the time and did not object.

The patient’s spouse later found out they were provided pain medication and was furious they weren’t contacted to discuss this and did not want the patient to have any pain relief. The spouse voiced their displeasure to the treating team, specifically the physician, and threatened to move the patient from the hospital.

When the patient passed away the spouse lodged a complaint against the physician claiming the morphine was the cause of their death.

Response to the Health Care Complaints Commission

We assisted the member to address the complaint made to the Health Care Complaints Commission. The submission detailed the appropriate care provided by the physician during the course of the patient’s illness. It also noted their painstaking attempts to balance the need to respect the patient’s wishes with the need to ensure they were fully informed of the likely effects of their choice to forego conventional medical treatment, as well as ensuring the patient’s decisions were their own and they were not being excessively influenced by any other person. The submission highlighted that all care provided was clinically indicated and discussed with the patient and, in the final stages of her illness, her family.

As would be anticipated, the Health Care Complaints Commission determined no further action was needed after reviewing
the submission.

Case learnings 

It is important to remember that the end stage of a patient’s life is a difficult and emotional time for their loved ones. Treatment that may seem obvious or routine to those who treat these patients regularly, can be frightening and difficult to understand to the family of those patients.

Ensure all treatment recommendations are explained in detail to families. If you are unable to reach agreement with the family regarding your recommended treatment and you believe this treatment is in the best interests of the patient, make sure you are familiar with the escalation pathway of your organisation.

If you are threatened with violence or feel you may be in danger from family members or a patient, read our article on page 10 of this issue for advice.

Case two: family claims negligence caused them nervous shock

After a routine mammogram which identified a suspicious mass in the patient’s left breast, a biopsy revealed they had an infiltrating ductal carcinoma. Surgery to remove the carcinoma was promptly scheduled by the surgeon as well as the preceding procedure of inserting a hookwire to mark where the cancerous lesion was.

The hookwire was inserted on the day of surgery, which was completed without any complications. Unfortunately pathology testing of the removed mass indicated it was not the cancerous lesion. Consequently, the surgeon advised the patient they would require a second surgery to extract the mass still in their breast.

The patient commenced proceedings for damages against the radiologist alleging they had failed to identify the lesion or accurately place the hookwire.

The delay in the removal of the cancerous mass and the patient having to go through a second surgery a fortnight after, it was claimed, led the patient, their spouse and two children to suffer from nervous shock.

Attempts to resolve the matter before court

The patient and their family did not have a strong case for demonstrating the legal standard of proof for the mental harm claim that, but for the patient needing the second surgery to remove the cancer, they wouldn’t have suffered nervous shock.

Expert evidence obtained on behalf of the radiologist highlighted the probability the hookwire had been accurately inserted but had likely displaced prior to surgery. On this basis we believed the radiologist had a strong defence.

The parties were unable to come to an agreement through mediation, and the patient and their family ultimately made the decision on the morning of the court hearing to no longer proceed with their claim.

Case comment 

Kate Reynolds, B.Sc (RN), Grad Dip. OSH, J.D (Law), Solicitor, Avant Law, WA

Mediation can be an effective dispute resolution avenue. It involves the respective parties and their lawyers meeting privately with a third party (the mediator) who is engaged to facilitate negotiation on settling the
legal matter.

Mediation can be undertaken at various points in the legal process, however, often it happens before parties go to court. The reason for this is because mediation occurs behind closed doors where parties can freely discuss issues and disclose documents, whereas once the matter proceeds to court, information and statements by the parties becomes publicly available and they don’t have input on how the matter is settled.

Other benefits of mediation include coming to a resolution sooner than going through the courts, the opportunity to consider information and documents in coming to a decision that could not be referred to in court and avoiding costs associated with appearing before court.

This article was originally published in Connect issue 11. 

More information 

If you require expert advice, email our Medico-legal Advisory Service (MLAS) at: nca@avant.org.au or call 1800 128 268 for expert advice, 24/7 in emergencies.

Read our articles: Complaint resolution and Dealing with adverse events.

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