Issue 19 / 30 May 2011

THE delivery of medical services by multiple health professionals working in medical and pathology centres operated by a service company is, at least in the legal environment, a relatively recent structure.

The legal duties owed to patients and others by a medical service company was the subject of a recent decision of the NSW Supreme Court (CS v Biedrzycka & Ors 20 May 2011). The court resolved a claim made by three doctors working at a medical centre in Sydney against the medical service company Idameneo (No 123) Pty Limited, which provided administrative services and facilities under a contractual arrangement with the doctors.

Two of the doctors had admitted liability for negligence regarding a patient, LB, who in 2004 had undergone HIV testing. She went on to have unprotected sexual intercourse after the correct test results were not conveyed to her, resulting in the transmission of the HIV virus to her partner CS. The doctors settled the compensation claim brought by CS.

The court heard that the address and telephone number recorded for LB were out of date as she had not been to the centre for about 5 years. Attempts to contact her about the HIV test results had failed.

The doctors sought a contribution from the medical service company towards the settlement with CS on the basis that the employees of the company were negligent in failing to maintain proper records of the current address of the patient.

The medical service company’s reception training manual and policy/procedures manual identified an expectation that its administrative staff would maintain proper records. The company owned all the patient records — a fact reinforced by a clause in the contracts between it and the doctors.

The court was asked to determine a novel application of the existing legal principle of duty of care — did the medical service company itself owe a duty of care to CS?

The judge said it did, with that duty including the requirement to “maintain current and accurate records that ensure effective and timely contact with its patients when the need arises, particularly when a pathology sample has been taken”.

Having found there was a duty owed to CS by the medical service company, and that it had breached its duty and the breach had caused the HIV infection of CS in a legal sense, the court required the company to contribute 40% of the damages paid to CS.

Idameneo is a wholly owned subsidiary of Primary Health Care Limited. Primary is a major company operating 87 medical clinics and pathology laboratories, providing six million GP consults and 11.5 million pathology services a year.

However, the law deals mostly in principles so this decision is likely to be relevant to many other medical service companies, not only Primary.

So it is not just doctors, hospitals, laboratories, etc who must recognise a duty to the patient — we can now add medical service companies to the list.

But this novel application of established legal principles might not end here. Will software suppliers for electronic patient records be next on the list?

Mr Madden is the national practice group leader ― medical law with law firm Slater & Gordon, and is an adjunct fellow at the School of Law, University of Western Sydney.

Disclosure: While not involved in the recent litigation, Slater & Gordon was retained by a person or persons for related legal advice.


Posted 30 May 2011

One thought on “Bill Madden: Duty to patients spreads to companies

  1. Deborah Thomas, specialist says:

    Sadly, the advent of computerised records seems to have led to a large number of inaccuracies in basic information and also a total lack of information about why and how these were not recorded. I am surprised that the contribution of the company was only 40%, especially if efforts to contact the patient by the medical staff had been made. This is worrying. Mistakes like this occur frequently in the public hospital sector, and are a cause of miscommunication, missed outpatient appointments, and most importantly, gaps in optimal medical care for patients.
    I have on occasion written, telephoned and emailed to ask for these to be corrected, but sometimes they continue despite such requests. Given that we medical staff cannot correct them on the computerised system ourselves, what can be done? Maybe inform our medical protection society?

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