Complaints to regulators drive physicians’ medico-legal matters

Dec 20, 2016

Why do physicians seek Avant's support? Our data provides some clues as we explore 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.

Physician claims by type

Complaints to regulator surge

Some of the increase in physician* claims is due to growth in the number of physician members. However, even when accounting for this increase by looking at cases per 1,000 members, there is a 7% increase in claims over the average of the previous three years.

Avant supported more than 1,600 cases for physician in the last four years. In the last year, half of all cases were complaints to regulatory authorities. There was a 15% increase compared to the average of the three previous years, which is well above the average for Avant members.

It pays to be prepared

*One of our members recently faced a complaint to the regulator about breaking bad news to the family of an 80-year-old patient with heart failure. The registrar had been on a long shift without a break. He had just been given a sandwich by a colleague when the patient’s daughter and her husband arrived for a visit. The patient had deteriorated overnight and the medical view was that he should not be resuscitated if he arrested. The doctor took the relatives into a quiet room and began to discuss the patient’s situation while unconsciously starting to eat his sandwich. Subsequently the daughter complained to the regulator, and ultimately the doctor was reprimanded about his behaviour. Unfortunately for this registrar, he was caught off-guard. We recommend preparing in advance for these difficult conversations. Our factsheet What to do when the news is bad has more on preparing for 'bad news' consultations and you’ll find plenty of tips and advice on improving communication in the Avant Learning Centre.

This registrar’s experience highlights the impact less-than-ideal communication can have on patients and their families. Communications issues are a key 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’.

Physician claims bar graph

Employment issues get formal

Employment matters were the fastest growing area for physicians having increased 16%, and are now the second-most likely matter for which physicians seek Avant’s support. 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’.

An example of this is where we supported one of our physician members with a claim where their hospital employer had appointed external investigators to independently assess the physician’s clinical practice. Our member was being asked to address concerns over the care of a number of patients and their clinical duties had been suspended. The employer has subsequently notified AHPRA.

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 four-minute video explains your rights and what to expect.

Employment claims for physicians often include contractual disputes. One recent case we assisted with concerned a physician who was moving from one type of employment contract to another.

If you have any comments or questions on this article please email editor@avant.org.au. 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.

*Physician data excludes anaesthetists, psychiatrists, pathologists and radiologists.This case is based on our claims experience and any relation to actual people is purely coincidental.

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