better manage your medical practice’s risk€¦ · the case below illustrates how a medical...

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Better manage your medical practice’s riskMedico-legal case studies

Avant Practice Medical Indemnity Policy

Your Advantagemutual group

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Dr Graham McNally,Practice Owner

About AvantAs a mutual and Australia’s leading Medical Defence Organisation – owned by our members – we’re always working for your benefit. We were established by doctors, for doctors, over 120 years ago. At Avant we truly understand your needs and that of your business, when it comes to protection, risk advice and support.

Our commitment extends beyond securing the best legal result for you and your staff. We have a dedicated team of corporate underwriters and claims managers who specialise in medical indemnity cover. Our knowledge of the unique and increasingly complex environment you operate in allows us to deliver products and pricing that reflect your individual requirements.

We are the largest Medical Defence Organisation (MDO) in the country with over 64,000 members and practice policy owners; the one more doctors choose.

Make Avant your MDO and benefit immediately.

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Avant Practice Medical Indemnity Policy is a medical indemnity cover designed to suit your business entity.

Practices, Clinics and day hospitals can be exposed to separate risks that may not be covered by a practitioners’ individual insurance. Without the right level of protection, the business, its owners and individual reputations may be at risk. This is why you need separate cover for your practice.

What you will find in this booklet

In this booklet we feature five scenarios that help to highlight the importance of a separate medical indemnity policy for your business.

Incorrect dose triggers anaphylactic reaction Page 2

Failure to recall patient leads to premature labour Page 4

Patient overhears derogatory comment Page 5

Practice staff dumps patient records Page 7

Child loses leg due to misdiagnosis Page 8

The benefits of a separate Medical Indemnity Policy

Medication errors Doctors should have systems and protocols in place to prevent medication errors, but unfortunately this cannot always protect against human error.

The case below illustrates how a medical practice can be liable for medico-legal mistakes made by clinical staff employed by the practice and why the practice needs its own indemnity insurance cover independent of doctors’ individual cover, to protect against these types of errors.

This scenario is based on Avant experience. Certain details have been concealed and information de-identified to preserve privacy and confidentiality.

Incorrect dose triggers anaphylactic reaction

Case studyA recent case involved two Doctors, Dr Smith and Dr Jones, who jointly owned a medical clinic which employed a number of nursing and administration staff.

The medical clinic had recently contracted John, a GP Registrar to work at the practice and the case arose when Mary presented to the GP Registrar for treatment.

John instructed Belinda, a Practice Nurse, to administer 0.05ml of desensitising preparation to Mary. However, Belinda accidentally administered an incorrect dose of 0.5ml, causing Mary to suffer an anaphylactic reaction that resulted in her being hospitalised.

A few days later, the medical clinic received a letter of demand from Mary’s solicitor seeking compensation for administering the incorrect dose and alleging:

• The medical clinic was vicariously liable for Belinda (who is an employee of the medical clinic).

• The medical clinic had a duty of care to Mary to ensure it had systems and protocols in place to avoid the medication error.

• The practice was also liable for John’s failure to adequately supervise Belinda, the Practice Nurse.

Key legal take out If the medical clinic had an Avant Practice Medical Indemnity Policy* in place, the claim could be immediately reported. Based on this scenario, Avant would support the medical clinic and its staff (such as the practice nurses) through the initial complaint and investigation process and negotiate with Mary’s solicitor.

Avant would also investigate any potential contribution from other parties, including the GP Registrar.

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*Cover is subject to the terms, conditions and exclusions of the policy. This information does not form part of the Policy Wording. Please read and consider the PDS and policy wording which is available at avant.org.au or by phoning us on 1800 128 268.

The Avant Practice Medical Indemnity Policy covers claims against the practice entity, any past, present or future principal, partner, director, employee, volunteer or student.

The policy also offers civil liability cover for acts, errors and omissions of employees, and for the indirect responsibility of the practice for acts, errors or omissions of medical practitioners and other healthcare professionals.

Plus, cover for your business so staff members’ actions do not impact upon individual practitioner indemnity insurance policies.

Strategies to reduce impact of medication errors• Appropriate credentialing when employing the practice nurse.

• Competency assessment of the nurse before allowing him/her to work on his/her own and ongoing education.

• Develop systems and protocols on medication administration; for example use of checklists; 2 people to check the ampoule or type of medication against the doctors orders before administering.

• Robust adverse event management system including a centralised register to identify contributing actions to the adverse event; actions to be implemented to reduce the chance of recurrence and measures of outcomes.

• Appropriate medication storage and monitoring equipment.

• Ongoing professional development training.

• Ask the patient to also check the medication first.

• Stock and use appropriate medications to counter the effect of an adverse reaction.

• Protocols for calling for early ambulance retrieval.

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System errors It is important that practices have effective systems in place to identify, follow up and recall patients.

In this case, a recall error led to a claim being lodged against both the practice and their employees after a pregnant woman went into premature labour and her baby suffered complications.


Failure to recall patient leads to premature labour

Case study The case involved Dr Meakin and Dr Naylor who jointly own an obstetrics consultancy which employs a Midwife, a Practice Manager and two Receptionists.

Sarah, who was pregnant for the first time and in her second trimester (27 weeks), presented to Dr Meakin with mild urinary symptoms. As a result, Dr Meakin ordered a mid-stream specimen of urine (MSU) for Sarah.

The following day, Dr Meakin left for Europe on planned annual leave. Elizabeth, a Midwife, checked Sarah’s urine result and asked Prue, the Practice Manager, to recall her for review. However, Prue forgot to make the recall telephone call.

After Dr Meakin returned from his holiday, he and Elizabeth discovered that Mary had gone into premature labour allegedly as a result of pyelonephritis. Although the baby survived, it suffered complications.

Subsequently, Sarah lodged a civil claim against the obstetrics consultancy, as well as the Midwife and Practice Manager.

In this case, as the employer of the Midwife and Practice Manager who were responsible for causing the recall error, the obstetrics consultancy has potentially exposed itself to vicarious liability.

Key legal take out Based on this case, an Avant Practice Medical Indemnity Policy* would cover the claim against both the obstetrics consultancy and the Midwife and Practice Manager.

A practice policy also provides protection to medical practices over and above the doctor’s individual policy.

Therefore, in this case the claim would be recorded and managed within the practice policy and Dr Meakin and Dr Naylor’s personal indemnity insurance cover would remain unaffected by the practice policy claim.

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Key management take out • The nurse should inform the doctor who is covering Dr Meakin when he is absent from the

practice that the result was abnormal.

• A buddy system should be in place when doctors are on leave to ensure an obstetrician is monitoring test results and patient management issues.

• A patient with clinically significant issues who has an abnormal result should be placed on a recall list to ensure follow up has occurred and not rely on the front desk staff making a phone call.

• ‘Task lists’ can be utilised to ensure the patient was phoned advising to make an appointment for review.

Patient complaints Patient complaints can be very confronting and stressful for both doctors and the practice entity. Complaints can revolve around personal behaviour, the behaviour of a colleague or administration staff.

While complaints can be precipitated by an adverse event, predisposing factors – such as rudeness, delays, inattentiveness, miscommunication, apathy or poor communication – strongly influence a patient’s decision to make a complaint.

In this case, the patient complained after overhearing the receptionist make a derogatory comment about him.


Patient overhears derogatory comment

Case study You and a business partner set up a service company with the aim of renting out spare rooms to other surgeons.

As part of the rental agreement you provide shared administration staff who are employed by the service company.

Patients attend the rooms for pre-operative and post-operative appointments and all patient files are kept on site.

In the present case, one of the surgeons who rents out a room has a difficult patient who regularly turns up to the reception demanding to see the surgeon on the spot.

On this occasion, the receptionist makes a derogatory comment about the patient to another staff member which the patient overhears.

The next day a letter arrives in the mail on behalf of the patient’s solicitor addressed to you and your business partner as the employer of the receptionist, lodging a complaint over the derogatory comment.

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Key legal take out In this case, although the incident involved the receptionist, neither you nor your business partner has treated the patient.

The receptionist is also not employed by you or your business partner, instead she is an employee of the service company.

Based on this case, the complaint could be resolved quickly and efficiently as the receptionist would be covered under the Avant Practice Medical Indemnity Policy*.

Fortunately, you and your business partner’s personal indemnity insurance policies would not be affected by the practice policy claim.

Key management take out• Staff working in the practice should be trained on dealing with difficult patients.

• Educate staff on the privacy legislation and code of conduct/professional behaviour.

• If renting rooms to other practitioners’ protocols should be developed to assist staff in managing each medical practitioner’s patient management including appointment scheduling, triage etc.

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Privacy breaches Patients often take legal action against practices due to breaches of patient privacy by practice staff which can be very costly to a practice.

Whilst this is a fictional case, Avant has defended claims that mirror many of the details in this case.

Practice staff dumps patient records

Case study Jane was recently employed in an administration role at a medical practice. Her duties included reviewing patient records, removing any duplicated records and tidying them up.

Although Jane had completed privacy training with the practice, she was not listening when the protocol for destroying sensitive information was explained to her.

As part of her responsibilities, Jane reviewed the patients’ files and found duplicated records in 100 files. Ignoring protocol, Jane discarded the duplicated patient records in the dumpster at the back of the practice which is coincidentally shared with another tenant in the building who works for a TV station, channel M.

The journalist, who was employed with the current affairs program ‘Sensational Living,’ was throwing out some rubbish when she stumbled upon the patient records and decided to do a story exposing the privacy breach.

The TV journalist also passed on sensitive information to her colleague, a sports journalist who also works at Channel M, regarding a celebrated sports star’s previous drug use. As a result, the story leads to a police investigation and the sports star is suspended from the sport.

Subsequently, 50 of the patients whose privacy was breached make a claim against the practice for damages of $100,000 each for the distress and shock they suffered, amounting to $5,000,000 in total.

The sports star who can no longer perform and has lost all of his sponsorships, also makes a claim against the practice for breaching patient privacy for $2,000,000.

Key legal take outs Based on this example, without having practice medical indemnity in place the practice would not be covered for this claim and if found liable, could risk bankruptcy.

With an Avant Practice Medical Indemnity Policy* in place for a $10,000,000 limit the claim would be accepted.

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Key management take outs • Seek assistance from Avant to manage the breach including how to manage the

communication with patient involved.

• Educating staff on privacy legislation should be supported by competency assessments to ensure staff understand the implications of each of the privacy principles. Education on the privacy legislation should be provided on a regular basis and particularly when changes have been made to legislation.

• As part of the induction process staff should sign and date they have received training on privacy legislation and understand the implications of same.

• Secure bins or similar should be in place to enable ease of confidential destruction or medical records.

• Document in the central compliance breach register contributing actions to this event and recommended improvements to reduce the chance of recurrence of such an event.

• Ensure there is not a ‘culture of blame’ in your practice to encourage staff to report when something has gone wrong.

Clinical management issues The fictional case below demonstrates that in circumstances where a complaint involves Practice staff or a past Medical Practitioner who is unable to be located, legal action is likely to be taken against the practice.

Child loses leg due to misdiagnosis

Case studyA one year old child presented to a practice twice on the same day with flu-like symptoms.

A Practice Nurse saw the child and told his parents that he was most likely suffering from a flu virus and to come back the following day when an appointment was available.

That same day, the child represented again in the afternoon and was seen by a Locum who was working at the practice. The Locum confirmed the Practice Nurses’ diagnosis of a flu virus and sent the child home.

That night, the child was admitted to the Children’s Hospital and diagnosed with meningococcal septicaemia. The child subsequently lost a leg and developed lasting neurological deficits and reduced IQ.

15 years later, the practice is contacted by lawyers acting on behalf of the child and his parents.

The parents allege that the child, who is now a young adult, was seen by the practice 15 years ago with flu-like symptoms.

The complaint alleges multiple failures on the part of the practice, the Practice Nurse and the Locum and if found liable the payout could be as high as $7,000,000.

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Unfortunately, the practice is unable to locate the Locum who was an Overseas Trained Doctor and has since returned to their country of origin. The Practice Nurse has also informed the practice that she does not have any professional indemnity insurance in place.

Key legal take outBased on this case, if the practice did not have medical indemnity insurance the claim would be an uninsured risk as the Locum is unable to be found.

As none of the Doctors currently working in the practice were involved in the complaint, their personal indemnity insurance cover will not be affected as no claim was made against them.

However, if the practice had held an Avant Practice Medical Indemnity Policy* the practice would be covered against this claim.

Key management take out • The practice nurse is not authorised to send a patient home who has clinical signs and

symptoms unless reviewed by a medical practitioner. As children can become very sick very quickly, most practices operate on the protocol that sick children will always be provided an appointment to be reviewed by a medical practitioner when the child physically presents to the practice. If a parent/carer phones the practice seeking an appointment for their child who is sick the practice protocol includes providing ‘fit-in’ appointments for sick children on the same day. Both the nurse and the locum doctor’s documentation should detail presentation, examination, advice provided to the patient/carer:

• When the child is to be reviewed.

• Provide information of the signs and symptoms to warrant presenting to the hospital.

• The practice owner should be assured of a locum doctors competency and expertise and ensure the locum doctor is aware of the protocols, systems and processes he/she must observe when working in the practice.

• A locum doctor should provide formal clinical handover when completing his/her time at the practice.


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*IMPORTANT: The Practice Medical Indemnity Policy is issued by Avant Insurance Limited, ABN 82 003 707 471, AFSL 238 765. This policy is available at avant.org.au or by contacting us on 1800 128 268. Practices need to consider other forms of insurance including directors’ and officers’ liability, public and products liability, property and business interruption insurance, and workers compensation.

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Avant Insurance Limited ABN 82 003 707 471 AFSL 238765

Your Advantagemutual group

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