Chappel v Hart: the High Court considers causation of damage from a surgeon's negligent failure to warn

Liability of mental health services for injuries incurred during community treatment

OBJECTIVES

The aim of this paper is to examine the recent decision of the NSW Supreme Court, which considered a personal injuries action brought by a patient treated in the community following a 6 day voluntary hospital admission.

CONCLUSIONS

The judicial reasoning in Walker v Sydney West Area Health Service provides some comfort to mental health professionals practising in other jurisdictions whose legislative provisions are similar to those contained in the Civil Liability Act (NSW). In applying the Bolam principle, rather than the higher common law standard previously imposed by the High Court in Rogers v Whitaker, the decision is encouraging for mental health professionals whose management accords with accepted current good practice. The infrequent scrutiny by courts and coroners of management practice and systems in mental health is a further incentive to maintain continuous improvement of quality of care (by clinical audits, active risk management, professional development and supervision, and patient/family participation) consistent with the principles of clinical governance.

Consent and anaesthetic risk

The incidences of mortality and morbidity associated with anaesthesia were reviewed. Most of the published incidences for common complications of anaesthesia vary considerably. Where possible, a realistic estimate of the incidence of each morbidity has been made, based on the best available data. Perception of risk and communication of anaesthetic risk to patients are discussed. The incidences of anaesthetic complications are compared with the relative risks of everyday events, using a community cluster logarithmic scale, in order to place the risks in perspective when compared with other complications and with the inherent risks of surgery. Documentation of these risks and discussion with patients should allow them to be better informed of the relative risks of anaesthetic complications. Depending on specific comorbidities and the severity of operation, these risks associated with anaesthesia may increase for any one individual.

Reasons for patients' discontent and litigation

INTRODUCTION

Discontent and litigation among patients is a problem which increasingly preoccupies the medical profession.

AIM

We aim to analyse the origin of discontent and litigation and to help avoiding these claims.

MATERIAL

One hundred and seventy-eight medical expert opinions were evaluated, all made following examination of the complainant.

METHODS

Depending on the results of the clinical examination and the study of the files it was determined whether there was either a case of malpractice or insufficient informed consent, or no fault at all in a legal sense. In addition the patient and the surgeon were questioned as to their point of view regarding the procedure and their communication and relationship before and after treatment.

RESULTS

Frequent complaints were pain (either during treatment or afterwards), major swelling or bleeding, disturbances of trigeminal or facial nerve function, poor scar formation, loss of teeth or fixtures, faulty occlusion and discrepancies between the expected and the actual result of treatment. In 26 cases actual faults made during medical treatment were discovered. In 49 further cases, poor explanation of the proposed procedure was the reason for complaint. In the majority of remaining cases, neither faulty treatment nor insufficient information given to the patient lead to the complaint but the patient's expectations were unrealistically high.

CONCLUSION

A considerable proportion of lawsuits originate from misunderstandings, and not treatment errors: The surgeons often concentrate on the legal requirements of informed consent and neglect to explain the practical consequences of the operation; the patients in turn tend not to ask about possible complications.