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Edition 17 | March 2013


Being wary after dark Patients being transferred from intensive care at night face much higher risks – but why? And what can be done to reduce them? A range of non-clinical issues are being blamed for an increase in risk for patients transferred from intensive care outside of normal working hours. The risk of mortality increases as the day goes on. A patient discharged between midnight and 6am has almost double the chance of dying as a patient released between 6am and noon. Between 6pm and 6am the risk increases by 30-40%. VMIA has a focus on clinical handover which is part of the patient transfer process because it is a key contributor to not only adverse events but to claims across all clinical specialties. International experience suggests that in the United States 15-30% of claims arise from poor handover.

Dr David Pilcher, Intensivist at The Alfred Hospital and Director of The Australian and New Zealand Intensive Care Society (ANZICS) Adult Patient Database says that there are a number of issues that are not directly related to the immediate medical care, which put a patient discharged from ICU at night at higher risk. There are over 120,000 people admitted to Intensive Care Units (ICU) in Australia. Although the majority (approximately 110,000) survive to be discharged from the ICU to a ward, more than 5000 people subsequently die before leaving hospital. About one in seven of the discharges from the ICU occur afterhours between 6pm and 6am. If the increased risk associated with afterhours discharge from ICU were completely preventable

(and we don’t know if it is), this would equate to nearly 500 additional survivors every year. The figures from Dr Pilcher’s research mirror those taken from similar studies in the UK and across Europe. But why does this happen? The assumption is that there are a range of factors, according to Dr Pilcher who then explained there are less staff around at night. “Hand-overs are more difficult. It is possible that you are transferring the patient to someone who is “covering” rather directly responsible for the patient’s ongoing care. At night time nurse staffing levels are less compared to the day shift potentially resulting in less observations or (Continued on page 2)

IN THIS ISSUE A practical guide to record keeping


Victorian Hospital’s Emergency Management Forum


Working towards a safety culture


Informed consent casebook 


Managing Clinical Risk (Being wary after dark, continued from page 1)

delay in detection of any deterioration in the patient’s status.” Of concern to clinicians in ICU, is that these figures may represent the premature discharge of critically ill patients. Dr Pilcher says that hospital staff have to make decisions about critically ill patients and prioritise their care and needs against the availability of ICU beds. At night, the challenge is about the need to balance the additional risks to the person being discharged against the risks for a more critically ill patient that needs urgent admission to ICU. “Sometimes we have to balance the desire to keep a patient within the ICU and avoid an after-hours discharge against the need to leave some capacity to admit patients urgently if required. If we have to discharge a patient at night, it’s important to recognise patients with the highest risks at the point of discharge from the ICU and try to hold onto them.” For example, patients with additional needs such as a tracheotomy, or receiving IV feeding or ventilation through a mask add complexity to the level of care required when the patient is on the ward. A judgement call needs to be made to prioritise those patients with a lower risk profile for discharge to the ward at night. The structure, processes and capacity of the whole hospital itself (as shown in the case study on this page) can affect the situation. The more afterhours discharges from intensive care you do, the higher the individual risk to the patient, Dr Pilcher says. He added that presumably it is a representation of the entire hospital

system – the number of after-hours discharges that occur may be a barometer of capacity to provide critical care to the most severely ill patients but is also affected by capacity to admit and manage ‘routine patients’ on general wards. Although the causes of the increased risk of mortality caused by late-night transfers are unclear, there are steps that hospitals can take to reduce these risks. The Alfred, for example, has introduced a range of systems and processes to not only reduce the number of patients discharged overnight, but also to make it safer for those that are discharged during this period through necessity. These measures include a review by an intensive care doctor after the transfer, the introduction of a specific handover

Case study: a balancing act

process, a liaison nurse who reviews these patients, and a system which provides the ability to flag “at risk patients”. “When we have to transfer patients out of ICU, we are now attempting to minimise the impact for that patient,” Dr Pilcher says. Figures from 10-15 years ago show the mortality risk to a patient discharged from ICU was much higher than it is now. According to Dr Pilcher, the reduction is a combination of all the processes that have been introduced, plus the recognition that transferring patients overnight increases the risk of an adverse outcome for the patient and you only do it when you absolutely have to.

The latest from VMIA

It is 3am and a patient with severe head injuries needs urgent admission to the ICU. There are no ICU beds right now and only two patients are nearing readiness for discharge. One is a patient who is well following routine cardiac surgery two days ago. One is a weak, debilitated (but stable) patient with a tracheostomy who has been in the ICU for 25 days. There are no cardiac surgical beds available in the hospital. Do you send the high risk patient with the tracheostomy or do you send the low risk patient to ward which is unfamiliar with caring for patients after major heart surgery? Who would you send? One of them has to go! You are trading the increased risk of sending a patient to a non-cardiac surgical ward (even though that patient might be relatively low risk) against the unknown chance of adverse outcome by discharging a more complex tracheostomy patient.

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To report, or not to report What are the guidelines for reporting medical indemnity incidents to VMIA? Health services are being encouraged to review their reporting guidelines for medical indemnity cases which may lead to damages. Clients insured by VMIA under the Medical Indemnity Policy are required to report any incidents which might give rise to a liability to pay damages. This means VMIA should be notified of incidents, even if litigation has not been suggested, and even if patients or family members have not yet actually made a complaint. However, it does not mean that VMIA should be notified of all incidents. Clients are encouraged to apply a ‘common sense’ test before deciding whether an incident should be reported. For example, near misses, minor incidents with no permanent consequence, or which do not impact on the ultimate prognosis,

would generally not be required to be reported. There are, however, a range of incidents which VMIA should be informed about: • incidents where patients have made a complaint or have expressed an intention to obtain legal advice • any Freedom of Information requests (other than those which are clearly related to TAC, WorkCover or Crimes Compensation applications) • complaints to the Health Services Commissioner • cases where a patient’s prognosis or clinical outcome has been materially and adversely impacted by treatment provided by the health services (regardless of whether this was due to any identified defect or fault in their care)

• patients, particularly minors, whose clinical condition has worsened as a direct result of treatment or care provided by the healthcare service. Reporting incidents as soon as possible assists VMIA to work with health services to identify and manage compensation claims and to triage more serious incidents for increased management and investigation. VMIA has established a new email address to make it easier to contact us with your medical indemnity enquiry. Please contact us on

A practical guide to record keeping for GPs What should be included in the patient’s records? All documents relating to your treatment of the patient should be kept in the patient’s records, including: • progress notes • correspondence between you and third parties (e.g. specialists) regarding treatment of the patient • all investigations, such as X-rays and pathology. The Medical Board of Australia has produced guidelines for good medical practice, indicating that progress notes should: • be accurate, up-to-date and made as soon as possible after or at the time of events • be timed and dated, with the name of the practitioner/s attending • be legible

• report relevant details of - clinical findings - investigations - information given to patient - medications and other management. The guidelines also indicate that doctors must ensure their medical records: • are held securely and are not subject to unauthorised access • show respect for your patients and do not include demeaning or derogatory remarks • are sufficient to facilitate continuity of patient care.

Where separate files should be kept Where there is a complaint or civil action initiated by a patient, any correspondence or documentation


relating to this complaint should not be kept on the patient’s medical record.

- clinical history

Create a separate and distinct file for correspondence or documentation from, for example: • the Court • AHPRA • your medical indemnity insurer and/or your lawyers. The patient has no entitlement to a copy of this separate file through the provisions of either the Freedom of Information Act 1982 or the Health Records Act. Further information: Good Medical Practice Guidelines: A Code of Conduct for Doctors in Australia can be found at By Lisa Newcombe, Partner, Lander & Rogers

VMIA 2013 Risk Conference Hilton on the Park Melbourne

7-8 October

Managing Clinical Risk March 2013 | 3

Managing Clinical Risk

Prompt diagnosis needed to address prosthetic joint infection A 75-year-old man underwent a revision of a total left knee joint replacement. At discharge from hospital there was a small amount of wound ooze which progressively increased over the following week. The patient presented to the hospital’s Emergency Department where ‘mild to moderate’ wound erythema and ooze was noted. After a phone call to the orthopaedic registrar, the patient was sent home with wound dressings and an appointment to attend the orthopaedic outpatients clinic. Before this appointment the patient developed lethargy, sweats and increasing knee pain. He represented to the Emergency Department three days later concerned about an infection of his knee. The knee wound again had erythema and ooze. A temperature of 37.8° C was noted and a urine dipstick was positive for 2+ leucocytes. Although there were no urinary symptoms, a diagnosis of a urinary tract infection was made and the patient was sent home with oral Nitrofuratoin. On review in the orthopaedic clinic two weeks later, the patient complained of increasing pain, wound ooze, lethargy and fevers up to 38.0° C. At this time a preliminary diagnosis of a possible prosthetic joint infection was made. He was admitted to hospital and underwent exploration of the wound and superficial debridement (surgical removal of foreign matter and dead tissue from the wound). During the debridement there was no obvious indication of deep infection and a diagnosis of ‘superficial wound infection’ was made. A wound swab taken during the procedure cultured a methicillinsensitive Staphylococcus aureus (MSSA). After a three-day admission the patient was discharged with a short course of oral Flucloxacillin. At a subsequent outpatient review the wound was noted to have healed, however, there was ongoing knee pain. Three months after the initial joint replacement, the knee became acutely swollen and the wound again began to ooze at its lower end. The diagnosis of prosthetic joint infection was then made and the patient was admitted and underwent arthrotomy with debridement of the knee prosthesis. During this procedure, pus around the joint and a sinus tract were noted and tissue specimens taken during the procedure grew MSSA.

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A second debridement was performed four days later and a six-week course of intravenous Flucloxacillin were administered followed by a three-month course of oral Flucloxacillin. The knee pain and swelling continued and after nine months a relapsed knee prosthesis infection was diagnosed. A twostage prosthesis exchange was attempted, (a cement spacer was inserted and after two months a prosthesis reinserted), however, this failed for mechanical reasons and after three further operations, the knee was fused. The patient was unable to walk independently and was placed in high-level care.

Allegations The patient alleged the hospital had breached its duty of care to him in three respects: 1) There was a delay in the diagnosis of prosthetic joint infection at the initial two Emergency Department presentations. Either a deep infection, or at least a serious wound complication requiring management,

should have been suspected from the time of the first presentation given there had been more than 10 days of wound discharge. On the second presentation it was inappropriate to diagnose a urinary tract infection based on a urine dipstick with the absence of urinary symptoms, but reported knee and systemic symptoms. 2) When prosthetic joint infection was initially suspected at the third presentation, changing the diagnosis to a superficial infection despite significant knee and systemic symptoms, was inappropriate. Prosthesis debridement and prolonged antibiotics should have been undertaken at this stage. 3) When the diagnosis of prosthetic joint infection was finally made, treatment with debridement and retention was inappropriate given the infection was now a ‘delayed prosthesis infection’. Appropriate treatment at this point should have been a two-stage exchange and prolonged antibiotics.

Legal issues There was a delay by the hospital to diagnose and treat the infected prosthetic knee with an appropriate antibiotic.

Result The claim was settled on confidential terms without proceeding to trial.

Discussion The diagnosis of prosthetic joint infection is largely clinical given the lack of adequate diagnostic tests. Suggestive symptoms are wound ooze and erythema, joint pain and swelling. These symptoms are similar to those of superficial wound complications – such as wound infection or haematoma, however, if the symptoms are significant, ongoing, or associated with fever or systemic symptoms, then prosthesis infection is likely. The presence of a wound infection or haematoma are significant risk factors for prosthetic joint infection in themselves and should be actively investigated and managed. The prompt diagnosis of a prosthetic joint infection is critical as delays in treatment of even a few days can increase the risk of failure of treatment.

This is mainly because of the timedependent formation of bacteriaassociated biofilms on the prosthesis surface. The biofilm prevents penetration of antibiotics and decreases their potency due to the low metabolism and growth rate of associated bacteria. A prosthetic joint infection can become irrepressible if a bacterial biofilm is given time to establish. Accordingly, prosthetic joint infections are classified as early (<three months from implantation and <less than three weeks of symptoms) or delayed/late (>three months from implantation; >three weeks of symptoms). Early infections with a stable prosthesis can successfully be treated with retention of prosthesis and open surgical debridement (disrupting the early biofilm) and a prolonged course of appropriate antibiotics, especially those with activity against biofilm-associated bacteria, such as Rifampicin-based combinations. Delayed or late infections are associated with a very high relapse rate if the prosthesis is retained and so should usually be treated with antibiotics and replacement of the prosthesis in a one- or two-stage procedure. These are more technically difficult, major procedures with added morbidity and risk of mechanical failure.

Lessons learnt 1) Symptoms suggestive of prosthetic joint infection are: significant or progressive wound ooze and erythema, joint pain or swelling, especially (but not always) in the presence of systemic features of infection. 2) The prompt diagnosis of prosthetic joint infection is critical in allowing successful treatment with the least invasive surgical approach of debridement and retention of prosthesis. 3) Late prosthetic joint infection treated with debridement and retention is likely to fail, so, where possible treatment should be with the appropriate antibiotic regime and replacement of the prosthesis. 4) The diagnosis of prosthetic joint infection is difficult and should be managed by experienced specialist orthopaedic and infectious diseases specialists in consultation. Edited by independent expert, Dr Craig Aboltins MBBS(Hons) FRACP Infectious Diseases Physician

Joining forces for emergency think tank Victoria’s hospitals are ensuring emergency management standards maintain best practice through collaboration with peers Collaboration between emergency management teams at Victoria’s hospitals continues to grow through the networking opportunities provided by the Victorian Hospital’s Emergency Management Forum (VHEM). The forum, hosted by VMIA each quarter, includes representatives from public and private hospitals across metropolitan and rural settings who hold roles within emergency management. In 2013 it will be chaired by Bob Stayner, Fire and Emergency Management Coordinator, Bendigo Health. “We network within our own group, and through a social media tool called Yammer. By exchanging ideas and discussing issues, we are often able to assist each other and progress situations much quicker,” he says. Discussions within the group are often varied given the complex demands of hospital emergency management. The forum’s scope covers internal and external codes including fire, evacuation, violence, and threats, through to mass casualty incidents such as heatwaves, bushfires, biological pandemics and earthquakes. The forums often provide an opportunity to benchmark existing service delivery against a number of quality-based initiatives.

And as the VHEM Forum develops its reach and reputation, it is becoming more influential and recognised as a strong industry body. This is also assisting a cultural shift to the perception of emergency management in hospitals, Bob says. “The emergency department of hospitals are not where the emergency ends. If there is an incident and an ambulance transports a patient to the hospital, in some cases this is the beginning of the emergency management,” he says.

Bob Stayner

“The hospital’s role will often extend for days, weeks or months afterwards. We are working to ensure that is recognised as part of emergency planning.” VHEM is supported by Department of Health, Department of Human Services and VMIA. For more information contact Bob Stayner:

Managing Clinical Risk March 2013 | 5

Managing Clinical Risk

Clinical registries linked to reduced risks A host of clinical registries across Australia and the state are being used to improve outcomes for patients A number of clinical quality registries across the state are adding strength to the argument that what gets measured gets managed, with a range of improvements for patient outcomes. Clinical registries are databases that systematically collect health-related information on individuals who are: • treated with a particular surgical procedure, device or drug • diagnosed with a particular illness • managed via a specific healthcare resource. Clinical quality registries are a subset of clinical registries. Their purpose is to improve the safety or quality of healthcare by collecting key clinical information from individual healthcare encounters, which enable risk-adjusted outcomes to be used to drive quality improvement. Risk adjustment is the process by which adjustments in outcomes take into account factors over which healthcare workers and hospitals have no control. For example, when assessing outcomes for patients with cancer, it is important to take into account the stage of the disease at diagnosis, the age of the patient and perhaps some health factors which might also impact on survival. This means that doctors or hospitals who manage complex cases are not penalised when comparing their outcomes with others who manage less complex cases. Clinical registries have existed for many years in some areas of medicine, such as renal transplantation and dialysis, orthopaedic surgery, intensive care and trauma. More recently new clinical quality registries are being developed in high-cost areas of medicine where there is known to be variation in survival and complications across geographic regions or services. Most established registries in Australia began operation as research tools and collected a large number of data items. Over time, there has been increasing recognition of the need to keep data items in registries to a minimum, but to make sure that each item included in the registry is complete, well defined and consistently collected

6 | Managing Clinical Risk March 2013

across all sites. Clinical registry groups have also determined that one of their most important roles is to assess whether care is delivered according to evidencebased guidelines, and for this reason they have begun to include quality indicators in the registry and benchmark performance. They have transitioned from clinical registries to clinical quality registries. Examples of registry success exist in Australia and internationally. In Sweden, registries capture more than 25% of all health expenditure. They are supported by clinicians who routinely use and report registry findings back to clinical units. A study has identified that by investing $70 million annually, Swedish registries will return a cost savings over 10 years of more than $7 billion. In the United States there have been calls to expand registries to measure health performance and peak quality groups have developed infrastructure to support those wishing to develop quality registries or just locate where registries exist.

A study has identified that by investing $70 million annually, Swedish registries will return a cost savings over 10 years of more than $7 billion. In Australia, there are approximately nine registries providing national coverage. In addition, Victoria has many state-based registries and is leading the way in registry development. The ANZDATA registry monitors transplantation and dialysis and has for many years provided feedback to units comparing their outcomes against peer organisations. Since its establishment, units with poor results have commonly responded by requesting colleagues or heads of other units to review their procedures. The benchmarking results have been used to improve quality, reduce adverse events and inform policy (e.g. the wisdom of closing more remote units with low volumes and poor outcomes).

The Victorian State Trauma Registry (VSTR) was established in 2000 to monitor clinical outcomes of all cases of severe trauma occurring in Victoria. Five years after its establishment, the VSTR has demonstrated a 30% reduction in risk-adjusted in-hospital mortality, and significant gains in 12-month functional outcome. The Australian and New Zealand Intensive Care Society (ANZICS) registry has been benchmarking outcomes for nearly two decades. It has been responsible for identifying excess mortality when patients are discharged at night, identifying ICUs requiring increased resources, and providing evidence to support the use of telemedicine support for ward rounds in remote regions. Cardiac surgery and interventional cardiology in Victoria is being recorded through two registries. Both track inhospital and 30-day mortality and report risk-adjusted outcomes for the various procedures back to hospitals and clinicians. The Prostate Cancer Registry, Victorian Lung Cancer Registry and Breast Device Registries are among the many newer registries being developed with a core purpose of monitoring safety and quality of care. Common to all these registries is a governance process which ensures that variance in outcomes or ‘outliers’ are reviewed and acted upon within a formal framework. Clinical quality registries provide promise in our quest to accurately measure and improve performance. Clinicians and quality managers should familiarise themselves with the registries to which their organisation is contributing data. In most instances reports from registries are provided to heads of units and these could be included in data presented to governance committees and provide supporting data to demonstrate that hospitals are participating in externally benchmarked quality activities. By Dr Sue Evans, Head, Clinical Registry Unit, School of Public Health and Preventative Medicine, Monash University.

Working towards a safety culture Rewiring organisational culture to improve safety must overcome inherent contradictions, according to Gavan Lintern, Cognitive Systems Engineer There are a number of seemingly incompatible views of organisational culture. Some argue that an organisation becomes dysfunctional when management exhibits a pathological emphasis on power and control or promotes a bureaucratic emphasis on rules, order and accountability – in other words, micro-management. In contrast, analyses of major systems’ accidents often conclude that managers have been too remote from operational concerns. Underlying this contradiction is a pervasive view that organisations have a distinct culture with implications for safety. The term safety culture implies that some organisations are safer than others, specifically because of differences in organisational culture. The questions arise: • What is organisational culture? • Can we reasonably map organisational culture onto a safety dimension and, if we can, what is the difference between a safe and an unsafe organisational culture? • How might we promote change from an unsafe towards a safe organisational culture?

Organisational dysfunction Many discussions on this topic are diverted by an overly simplistic but nevertheless widespread perspective on hierarchal management, where managers are in charge and workers follow instructions. For safety critical systems, the recommendation from this perspective is to impose tight hierarchical control in the image of a military-style command structure. However, tight hierarchical control has the potential to promote micro-management.

Analyses of system accidents suggest that organisational dysfunction does not typically result from an emphasis on power and control, but rather from a mindless and disengaged approach to the complexities and challenges of work. Contrasting analyses of a few remarkably effective organisations suggest that mindfulness and engagement are powerful forces within an organisation and serve to promote a healthy safety culture. These terms – mindfulness and engagement – refer to behavioural patterns at both management and operational levels. Managers and operational personnel exhibit mindfulness if they are sensitive to the complexities and demands of operational work, if they defer to the expertise held by others, and if they are committed to effective operational performance. They are engaged if they maintain a strong connection to the challenges and opportunities resident in the work, if they continue to monitor progress actively, and if they are conscious of having a stake in the productivity of the organisation.

Cultural change It has proven notoriously difficult to transform a dysfunctional organisational culture into a healthy one. The problem stems from the fact that a dysfunctional management style has a strong influence on organisational culture. Managers, as is true of people in general, are remarkably resistant to confronting their own flaws. Nevertheless, cultural change is possible given relevant statutory approval and committed management support. The general strategy for cultural change involves a two-stage process. The first step is to identify vital behaviors that reflect a healthy culture and to then establish a

modest set of those behaviors as behavioral goals for the change program. A program for change should promote a small number of practices that are both manageable and self-reinforcing and should avoid complicated and comprehensive efforts that sap energy and quickly become amorphous. The second part of the cultural change process is about persuasion: how can we encourage possibly reluctant members of an organisation to participate fully in the new program? This part of the program relies heavily on encouraging people to experience the benefits of the new processes. This may be accomplished directly within operations or realistic training simulations. Whichever method is preferred, full implementation of the change requires a focused and concerted effort to persuade those whose behavior must change of the value of the program. However, experiential engagement is essential. That has proven to be more effective at inducing change in organisational and safety culture than instructions, advisories or exhortations that fail to engage members of the organisation with program benefits in any meaningful way. For more:

(“If only I had known...”, continued from page 8)

There are no “magic words” that need be used in this kind of note, and it does not have to be long. Ideally, the practitioner should be able to say that specific wording in the note means that he or she can say with certainty that a specific conversation took place. For example, the note “understood, NFQ” might mean that a practitioner is able to say with certainty that they asked the patient whether he / she understood the risks discussed, was answered with a ‘yes’, and whether they had any further questions, and was answered with a ‘no’.

A brochure listing the risks of surgery may also be a good idea. Ideally, if a brochure is given, it should be specific and detailed (as discussed above). There should be a written, dated note to say that it was given and the specific risks listed in the brochure were discussed (for example, “gave brochure, went thru each risk, understood, NFQ”).

Managing Clinical Risk March 2013 | 7

Managing Clinical Risk

“If only I had known…” How to prove (or disprove) an informed consent case by Paul Lamb, Senior Associate, DLA Piper Doctors and other health practitioners are familiar with the basic idea of an “informed consent” claim – that they breach a duty of care if they fail to inform a patient of a “material risk” of given treatment. As our previous articles have explained, a “material risk” is one that a reasonable person would have attached significance to, or one that the practitioner should have known this particular patient would attach significance to. However, a plaintiff needs to prove more than this to establish a case in negligence and so succeed at trial. He or she must prove that, if the warning was given, he/she would not have decided to go ahead with the treatment. This may be hard for a plaintiff to prove, as it was in the High Court case of Rosenberg v Percival.1

The facts The plaintiff, Dr Percival, was an experienced nurse and held a PhD in nursing. She suffered from worsening malocclusion (misalignment of the teeth or jaws). The plaintiff was referred to the defendant, Mr Rosenberg, an oral and maxillo-facial surgeon. The defendant, and the dentists who had seen the plaintiff earlier, had carried out various examinations and tests, including radiological imaging. This had showed no pre-existing issues in the plaintiff’s temporo-mandibular joint (TMJ) region. The defendant recommended orthognathic surgery to realign the jaw. He gave the plaintiff some general information about the risks of the procedure, mostly in the form of a brochure. He did not inform the plaintiff that she might suffer TMJ problems. The surgery went ahead and was uneventful. Afterwards, the plaintiff suffered worsening TMJ problems. She was left with serious, chronic pain in the TMJ area. At the time, the medical evidence said, there was known to be a small risk that surgery could exacerbate minor, pre-existing TMJ disorders. It was accepted practice, most of the medical experts said, to warn of that risk. At trial, the plaintiff gave evidence that, if she had been told there was “any risk” of TMJ problems, she “never, never” would have gone ahead with the surgery.

The findings The trial judge found that: • There was only a “very slight” risk of TMJ problems in the plaintiff’s case, given her earlier normal examinations. • Her condition was serious and so was her need for surgery. • She had been willing to undergo other serious risks (e.g. the risks inherent in general anaesthesia). • She was a nurse and so more knowledgeable than most patients about surgical risks. • The plaintiff had exaggerated other, unrelated parts of her evidence. 1

(2001) 205 CLR 434.

Given all of this, the trial judge did not accept the plaintiff’s assertion that she would “never” have gone ahead with the surgery. She may well have truthfully believed this at the time of trial, but this was probably a reconstruction based on hindsight, given how much difficulty her pain and joint disorder had caused her. The trial judge found for the defendant. The plaintiff successfully appealed, and so the defendant appealed again, to the High Court. The High Court agreed with the trial judge. It found that the most the plaintiff’s evidence could establish was that “perhaps she might not have” had the surgery if she had known of the risk. It found that, at that time, there was no law that would allow the plaintiff to prove her case on the basis that she had merely “lost a chance” to decide against surgery.2

Lessons for practitioners A detailed and well-documented discussion about risks can provide a practitioner with a good defence. In other words, if a doctor can prove that the risks of treatment were discussed, that these were apparently understood, and that there was a good indication for surgery, this greatly improves the chances of successfully defending the case, even if the particular, rare risk that eventuated was not discussed. The key word, from a lawyer’s perspective, is “prove”. Notes of consent discussions often simply say something like “risks discussed”. These notes are helpful to a practitioner’s defence, but are much more powerful tools if they are more specific. Practitioners should strongly consider: • Listing the risks discussed. • Listing the risks’ approximate likelihood (e.g “1 / 200”, “high risk” or “moderate risk”). • Noting that a patient understood. • Noting that a patient was given the opportunity to ask questions. (Continued on page 7) 2 The High Court has since decided that a “loss of chance” is never enough to establish causation in a personal injury case – Tabet v Gett (2010) 240 CLR 537.

We value your feedback Please provide any feedback to or contact us on 03 9270 6900. Visit for previous editions. The information provided in this document is intended for general use only. It is not a definitive guide to the law, does not constitute formal advice, and does not take into consideration the particular circumstances and needs of your organisation. Every effort has been made to ensure the accuracy and completeness of this document at the date of publication. VMIA cannot be held responsible and extends no warranties as to the suitability of the information in this document for any particular purpose and for actions taken by third parties.

© VMIA 2013

Managing Clinical Risk Edition 17  

Managing Clinical Risk is published quarterly by VMIA.

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