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Reliance on ‘usual practice’ may not be a defence

21 November 2019 | Avant media

A private hospital has been found vicariously liable for the administration of a heparin injection which caused a patient’s nerve injury.

The recently reported Supreme Court case, suggests doctors may not be able to rely on their ‘usual practice’ as a defence, even in cases involving routine mechanical tasks.

Case facts

A plastic surgeon member performed an abdominoplasty and breast augmentation on the 52-year old patient after she lost a significant amount of weight, resulting in excess skin.

Following surgery, the plastic surgeon prescribed a compression garment, twice daily subcutaneous injections of heparin (5000 milligrams) and strong painkillers as required.

The patient received her first heparin injection without incident. That evening, a nurse administered a second heparin injection which the patient claimed caused her instant pain and to say, “Ouch”.

An RMO was called the next morning after she noticed a lump on her thigh with pain extending across the middle of her left thigh to the top of her knee and the back of her leg. The plastic surgeon advised applying ice and no further heparin be administered. He saw the patient later that day and recalled she and her husband complained about how the injection had been given.

Almost two weeks post-surgery, the plastic surgeon reviewed the patient and reported to her GP she had developed a haematoma after a heparin injection.

Photographs were taken of the area affected by anaesthesia and paraesthesia and he encouraged her to continue massaging the area and use hirudoid cream.

Unfortunately, she did not recover as expected. She saw another GP at the clinic a few weeks later who noted the main issue was intra-muscular injection of heparin into the left thigh post-surgery, with marked thigh swelling and paraesthesia suggestive of a nerve compression injury.

The next day, the patient sent a letter of complaint to the hospital’s owner.

The patient was referred for an MRI and CT scan after her symptoms worsened. The GP noted, “No cause for neurapraxia found. Very likely direct nerve injury from injection.”

Around eight months post-surgery, the patient was referred to a neurologist, Dr A, for nerve conduction testing. The results showed no abnormality except for neurophysiological evidence of left meralgia paresthetica.

The patient continued to experience numbness and hypersensitivity in her leg and the injury interfered with her sex life and ability to exercise. She also claimed she would have sought full-time work as a carer if she was physically able.

Nurse’s reliance on usual practice

The court noted the hospital’s reliance on the nurse’s “invariable practice” as he did not recall the specific injection administered.

The nurse strongly disagreed he stuck the needle into the patient’s thigh without pinching the skin, explaining this was contrary to his usual practice. This involved gathering as much subcutaneous tissue as possible and gently inserting the needle at a 45-degree angle. He would then slowly inject the medication, taking about 30 seconds to empty the syringe. However, there was no record about the injection in his notes.

The nurse gave evidence that if the patient had said “ouch,” he would have asked if she was okay. Depending on her response, he may have called in the RMO and would have recorded it in his clinical notes.

Court considers weight of usual practice

The court considered the weight that should be given to evidence based on usual practice. In doing so, the court referred to decisions in prior cases to determine its conclusion.

In the present case, the court noted the problem with evidence based on usual practice is, “the less mechanical or routine a task, the less weight can be attached to an assertion that a supposedly invariable practice was followed.”

While the court accepted that giving a heparin injection was a reasonably routine mechanical task, the nurse’s inability to recall the injection meant he could only assert what he believed he would have done by referring to his usual practice.

“… I have some difficulty with the notion of an invariable practice. Ordinary human experience suggests that there can always be momentary lapses or careless errors in the performance of mundane or routine tasks …” the court said.

Cause of the injury

Expert opinion was divided over whether the extent of the patient’s symptoms and the results of the nerve conduction study, suggested damage done during or as a result of the surgery, such as scarring or swelling or the compression garment, contributed to the injury.

The court dismissed this hypothesis, preferring the evidence of the patient’s neurology expert who had examined the patient, over Dr A and another neurologist.

The neurology expert opined the heparin injection had been administered into the deeper subcutaneous fat, directly causing the nerve injury and residual neuropathy and neuralgia. On the balance of evidence, the court accepted his opinion that the abnormal nerve conduction study result was caused by the injection due to the process of axonal degeneration above the injury.

Nurse breached duty of care

Ultimately, the court found the nurse administered the injection in a manner which fell below the standard of care expected of a nurse in his position.

“Whether due to the pressure of work, or just momentary carelessness, he inserted the needle at an angle which allowed the point to penetrate the deeper tissues overlying the plaintiff’s left thigh muscle. I find that he probably did not attempt to “pinch” the skin on the [patient’s] thigh, or that if he did make that attempt, he did not do so effectively,” the court concluded.

The hospital was ordered to pay the patient almost $260,000 in damages.

Key lessons

This case suggests that ‘usual practice’ may not necessarily be a defence to a claim. Particularly in cases which involve an unusual procedure where it is difficult to assert that usual practice was followed without documentation to support it.

When courts or regulators are considering complaints, documentation is a vital element of the evidence. Keeping detailed, contemporaneous and legible notes is important.

A record must identify the patient and include sufficient information to facilitate continuity of care including:

  • clinical history and findings
  • investigations
  • information given to the patient
  • any treatment or surgical procedure including the:
    • date of treatment
    • nature of treatment
    • name/s of the people who gave or performed the treatment
    • type of anaesthetic given to the patient (if any)
    • written consent given by the patient.
  • other management

More information

If you receive a complaint, contact us on 1800 128 268 for expert advice on how to respond, available 24/7 in emergencies.

Download our factsheet: Medical records - the essentials and complete our eLearning course: On the record: medical records and documentation.

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