Medicolegal Issues
in Hospital in the
Home
Nicholas Mann
Senior Associate
Medical Law, Melbourne
25 May 2014
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1. Our position regarding HITH;
2. Overview of medical law in Victoria;
3. Strengths and weaknesses of HITH from a legal
perspective;
4. HITH Case Study;
5. Questions.
Introduction
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Our position regarding HITH
►HITH associated with reductions in mortality,
readmission rates and cost, and increases in
patient and carer satisfaction.
►Increases in patient and carer satisfaction =
reduction in complaints and claims.
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Our position regarding HITH
►We strongly support HITH from a patient safety
perspective.
►Likely to create different risks which need to be
considered in order to maximise patient safety
and satisfaction.
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Duty of Care <
Standard of Care
Causation
Damage
Medical Law Overview
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Medical Law Overview - Duty of Care
►A duty of care uncontestably exists in direct
doctor – patient relationship.
►This duty extends to patients being treated
through HITH.
►The scope of the duty continues throughout the
HITH admission.
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Duty of Care
Standard of Care <
Causation
Damage
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Standard of Care
A Medical Practitioner must act accordance with a
practice accepted as proper by a responsible body
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Standard of Care
Bolam v Friern Hospital Management Committee [1957] 1 WLR
582:
– A case regarding a mental health institution patient suffered
injury undergoing electro-convulsive therapy.
Decision:
- A practitioner must act in accordance with the standard of a
reasonable body of medical opinion. –
- McNair J. stated that a practitioner “is not guilty of negligence if he
has acted in accordance with a practice accepted as proper by a
responsible body of medical men skilled in that particular art.”
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Standard of Care
►What is the standard expected of Hospital in the
Home?
• HITH holds itself out as providing the service of a Hospital, but
in a different environment.
• For this reason, the same standard applies.
• A person or medical facility that holds themselves out as having
a specialist skill will be judged by the objective standards of a
reasonably competent person (or facility) exercising that skill.
Shakoor v Situ (t/a Eternal Health Co) [2000] 4 All ER 181
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Standard of Care
► Is there a lower standard because it is within a
patient’s home rather than in a Hospital setting
• No.
►Can the Hospital transfer its legal duties by relying
on family members to provide required care?
• No
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Duty of Care
Standard of Care
Causation <
Damage
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Causation
The negligence must have caused or significantly
contributed to the injury.
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Causation
►South Australia Asset Management Corp v York
Montague Ltd [1996] UKHL 10:
► “A mountaineer about to undertake a difficult climb is concerned
about the fitness of his knee. He goes to a Doctor who negligently
makes a superficial exam and pronounces the knee fit. The climber
goes on the expedition, which he would not have undertaken if the
Doctor had told him the true state of his knee.”
► If the mountaineer is then injured in an avalanche, “the doctor is not
liable. The injury has not been caused by the doctor’s bad advice
because it would have occurred even if the advice had been
correct.”
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Causation
Tabet v Gett [2010] HCA 12
In a unanimous decision, the Court held that damages are not available for the loss of a chance of a better medical outcome.
The plaintiff must prove, on the balance of probabilities, that they would have had a better outcome had the defendant not been negligent.
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Duty of Care
Standard of Care
Causation
Damage <
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Damage
► If a Plaintiff successfully establishes that their injury was
caused by medical negligence, they have an entitlement
to seek ‘‘damages’‘ for the losses they have suffered as
a result.
►No damages in the case of a near miss, and very limited
damages where the injury is not permanent or ongoing.
►Damages are made up of ‘‘economic loss” and
‘‘non-economic loss” (pain and suffering).
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Potential Advantages of HITH
►Quicker recovery;
►Lower cost;
►Less exposure to risks such as infection;
►Frees up resources for other patient tx;
►Happier, healthier patients;
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Key areas of risk in HITH
►Breakdowns in communication and education
►Failure to refer back to Hospital
►Administration failure
►Unsuitable candidate/carer/environment
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Case Study
►17 year old boy admitted with abdo injury. Pancreatic
surgery.
►Discharged into HITH.
►Two days post-discharge developed bleeding and
discharge.
►Patient worsened.
►Several complaints, not fully communicated.
►Father called nurse and advised Pt having difficulty
breathing. Nurse called Ambulance.
►Pt collapsed and died in Hospital from intra-abdo
haemorrhage from pancreatic rupture.
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Case Study: Some Issues Raised
►Is the Pt an appropriate candidate?
• In this scenario, the Coroner found the Pt was an
appropriate candidate, but this is important to
consider.
• Does Pt have capacity to give consent (if necessary)
and understand instructions?
• Does Pt have suitable carer(s) and accommodation?
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Case Study: Some Issues Raised
►Are staff, Pt and carers properly educated?
• Ensure staff are aware of the risks to the patient, and
of the contingency plan, should issues develop.
• Ensure carers are aware of symptoms or issues to
flag, and of appropriate responses.
• What are the thresholds for referring Pt back to
Hospital?
• Who should review Pt if issues develop?
• Should Pt go to GP, ED, ward or have home review?
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►Administration
• Do the Carers have the correct contact details?
• Pt’s mother had been given the contact details for
his old ward, not for HITH, while father contacted
HITH.
• Confusion about the appropriate point of contact,
and whose care Pt was in.
• Is there a written contingency on hand for treating
practitioners and carers?
Case Study: Some Issues Raised
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Case Study: Some Issues Raised
►Administration
• Locating and updating documentation:
• Failure to communicate crucial details
• Where is the patient’s documentation?
• How detailed are the medical records/progress
notes?
• How/when are they being updated?
• Is there a clearly identified chain of custody of
documentation?
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Other things to consider
►Refusal of treatment
►Unsuitability of environment/carers
►Additional risks including co-morbidities eg Type
II diabetes
►Safety of staff
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Disclaimer
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.
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Questions or comments?