Bill Madden: Repeat offenders

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