Issue 14 / 22 April 2013

THE recent study published in BMJ Quality & Safety identifying Australian doctors at risk of recurrent complaints gained much attention, as it should.

The research was ground-breaking, and not only in Australia.

The study sample consisted of 18 907 complaints against 11 148 doctors. It found that 3% of those doctors accounted for 49% of complaints and 1% accounted for a quarter of complaints.

Using those numbers for the 84 000 doctors registered in Australia, that 1% could represent 840 individuals. Perhaps “the system” is not always to blame.

From a medicolegal viewpoint, what are the implications of these findings?

In published court proceedings in Australia, the Medical Board of Australia and its predecessors have never been held liable for injury suffered by a patient arising from the conduct of an individual doctor.

It is a complex legal area, and the question of whether the board’s duty to the public as a whole can be translated to a private right to sue it is not an easy one. However, if the public as a whole can be narrowed down — say to the patients of a particular problematic doctor — that may be an easier legal path.

Many will be familiar with the legal test of what a person or entity knew, or ought to have known, about a particular risk or event. This latest research arguably makes a significant difference to the state of knowledge about problem doctors, with significant potential implications — particularly if data identifying individuals are made available to the board.

What of the health complaints commissions? Their role traditionally has been a reactive one, responding to individual complaints. Will a more proactive role develop?

In NSW for example, the Health Care Complaints Commission can investigate the delivery of health services by a provider which “may not be the particular object of a complaint”, if the commission believes the matter raises a significant issue of public health or safety, raises a significant question as to appropriate care or treatment, or would provide grounds for disciplinary action against a health practitioner.

The 2011–2012 NSW annual report shows that the commission dealt with 4130 complaints in that year. The report does foreshadow the research now published, but there is no obvious mention of any proactive investigations.

And what of the medical indemnity insurers? The research data does not attempt to link complaints and compensation claims, so it is not clear whether doctors subject to more complaints also constitute a group that has more claims against them. However, such a proposition seems not unlikely.

The Australian Institute of Health and Welfare’s most recent report on public and private sector medical indemnity seems to tell us nothing about “frequent flyer” defendants in the 2800 new claims for that year.

The report does analyse the type of clinical service and the clinician specialty, but nothing appears about repeat defendants. Perhaps it now should.

The research authors observe that identifying and intervening early with doctors at high risk of attracting recurrent medicolegal events has considerable potential to reduce adverse events and patient dissatisfaction system-wide.

Responses from the Medical Board, complaints commissioners and the medical indemnity insurers would be key starting points in achieving this.

And perhaps the courts will one day be called upon to consider the adequacy of their response.

Mr Bill Madden is the National Practice Group Leader, Medical Law, with Slater & Gordon.

Posted 22 April 2013

11 thoughts on “Bill Madden: Repeat offenders

  1. David Knight says:

    It would be interesting to have the speciality breakdown of these complaints. After all, high risk specialties such as obstetrics, neurosurgery and anaesthetics must attract many more complaints than (say) medical administration or non-procedural general practice.

  2. Ian Carr-Boyd says:

    “Identifying and intervening early with doctors at high risk of attracting recurrent medicolegal events has considerable potential to reduce adverse events..” Yes, I agree with this, but I think “patient dissatisfaction” is much more multidimensional.

    Adding the ingredients of ever increasing blame, increasing sense of entitlement, and seriously reduced sense of personal resposibility to the wide range of perceptons of health care, may provide food for further thought.

    I think the courts have much to answer for.

    Ian Carr-Boyd GP

  3. forensic says:

    Lawyers are always trawling for work which is a normal commercial activity to keep the business activity viable – publicly listed law firms have greater pressures because there is a duty to maximise the shareholder returns in the market place. Courts to date do not accept statistical evidence for good reasons- thankfully the judiciary [like most of society] have steered clear of basing major decisions upon statistics. Research papers are hardly facts to base a specific event of tortious action – but never mind worthwhile giving it a flutter may be profitable. May find a judge that wants to create precedents – everyone craves for 15 minutes of fame.

  4. Dr J says:

    Bill, while we are talking about professionals, why don’t we re-introduce the offences of Champerty and Mantainance? That would significantly reduce the number of legal actions against medical practitioners.

  5. Tom Walker says:

    When assessing a complaint, the Boards are NOT allowed to consider previous form in relation to that complaint. So this limits their ability to act against repeat offenders.

  6. Anonymous says:

    In answer to DK above, the whole point of the story is to look at the underlying systemic issues with so called offenders, and if that was put into action then your so-called “low risk” medical administrators might become responsible for the systemic breakdowns in admissions, emergency, rostering problems and employment of individuals, such as with the Victorian Hep C incident, and the non-procedural GP’s might be more accountable for FAILING to refer on many conditions.

  7. AHPRA says:

    Well I am one of those ‘Australian doctors at risk of recurrent complaints’ I have received multiple complaints. Three by doctors, (all over 60 and all non-GPs), one by AHPRA and one where the coroner was invoked (I was an opioid substitution prescriber – eg methadone so am only surprised it has been the one). All I have ever done is try to be a good doctor. I have had NO complaints from the public, including patients and their relatives, none by other allied health. and none by the doctors I work with every day.

    So How many are externally generated complaints and how many are other doctors with axes to grind, or simply AHPRA individuals trying to expand their turf/powers?

    And you wonder why I (and others like me) are ready to walk away from the profession.

  8. Richard says:

    Not wishing to criticise the extrapolation of results in this article, but in this article, the 1% attracted 43 complaints EACH…
    Considering how easily the board accept vexatious complaints and allows ill founded innuendo and slander by, not being subject to the “rules of evidence” I would suggest that “YES”, they are utterly liable for allowing such people to continue.
    What are they doing with themselves all the time they are supposed to be laboriously and longwindedly “investigating” minor variances in human behavior and relationships? Or are they busy chasing trivial matters because these others are “too big to handle”?? We should be told.

  9. gazzainsight says:

    A regulator being held responsible for the outcomes of behaviour of a third party? Interesting concept. If a criminal who is not given a custodial sentence re-offends, should the sentencing judge be liable to legal redress by the victim?

  10. medlaw says:

    I’m pleased to see this problem being aired.  It is far too easy to fall back on the lament of greedy lawyers and lazy, ungrateful patients. Doctors bristle with indignation at the idea of being scrutinised or being considered blameworthy.  Now doctors demand “no fault” be attributed to them.  They need to be cajoled into disclosing their errors.  AHPRA’s website protects repeat offenders. Surely this is contrary to their mandate?

  11. gazzainsight says:

    Semmelweis seems not to realise that sanctions and conditions (other than for practitioner health problems) are published  on the publicly-accessible register. How could this be considered to be “protects repeat offenders”?

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