Medical negligence - Key cases and application of legislation

Background

Law entails precedent-based common law and parliamentary-legislation-based statutory law. Australian courts recognise civil wrongs, called torts. The most common tort worldwide is negligence. The first aim of the paper is to educate the Australian nursing community about medicolegal issues, statutes, important cases, legal applications, and negligence statistics pertaining to clinical practice. The second aim is to determine whether medicolegal negligence claim-numbers are commensurate with recorded statistics on adverse events. The third aim is to determine and discuss preventative approaches to minimise culpability.

Materials and methods

Relevant searches were done using Pubmed, Google Scholar, and Austlii. Data, negligence legislation, key cases, and law processes were collated and analysed based on court decision citations, legal impact, and relationships between legislation application and case law. Although New South Wales legislation was used throughout this paper, parallel statutes exist across Australian jurisdictions.

Results

The basics of the civil tort offence of negligence are explained with step-by-step explanations. Key judgments and application of legislation in key medical negligence cases are discussed. Relevant medicolegal issues and negligence statistics are discussed. The civil tort of negligence is elaborately discussed, step-by-step, with relevant Common Law and legislation relevant to NSW. The watershed cases of Hadiza Bawa-Garba and Nurse Amaro are summarised with the ramifications for doctors and nurses. Expedient strategies to assist doctors and nurses in minimising unlawful action are discussed.

Conclusions

Adverse medical events are high in Australia. However, new claims are decreasing. Negligence claim-numbers are disproportionate to statistics on adverse events. The Hadiza Bawa-Garba and Nurse Amaro cases have opened a legal can of worms with manifold negative ramifications for the nursing community.

(1)

For a negligent breach of expected standard of care:(i)

Inexperience is irrelevant

(ii)

All procedural risks must be divulged prior to patient consent (Roger v Whitaker principle)

(iii)

No liability if a standard of care is one of many non-consensus standards widely accepted by peers

(2)

Key medicolegal issues and negligence statistics:(i)

High prevalence of adverse events and medication errors (Australia)

(ii)

Decreasing negligence claims are disproportionate to increasing numbers of recorded adverse events and medication errors

Maternal uptake of pertussis cocooning strategy and other pregnancy related recommended immunizations

Maternal immunization is an important strategy to prevent severe morbidity and mortality in mothers and their offspring. This study aimed to identify whether new parents were following immunization recommendations prior to pregnancy, during pregnancy, and postnatally. A cross-sectional survey was conducted by a questionnaire administered antenatally to pregnant women attending a maternity hospital with a follow-up telephone interview at 8-10 weeks post-delivery. Factors associated with uptake of pertussis vaccination within the previous 5 y or postnatally and influenza vaccination during pregnancy were explored using log binomial regression models. A total of 297 pregnant women completed the questionnaire. For influenza vaccine, 20.3% were immunized during pregnancy and 3.0% postnatally. For pertussis vaccine, 13.1% were vaccinated within 5 y prior to pregnancy and 31 women received the vaccine postnatally, 16 (51.6%) received the vaccine >4 weeks after delivery. Receiving a recommendation from a healthcare provider (HCP) was an independent predictor for receipt of both pertussis (RR 2.07, p < 0.001) and influenza vaccine (RR 2.26, p = 0.001). Non-English speaking mothers were significantly less likely to have received pertussis vaccination prior to pregnancy or postnatally (RR 0.24, p = 0.011). Multiparous pregnant women were less likely to have received an influenza vaccine during their current pregnancy (p = 0.015). Uptake of pregnancy related immunization is low and likely due to poor knowledge of availability, language barriers and lack of recommendations from HCPs. Strategies to improve maternal vaccine uptake should include education about recommended vaccines for both HCPs and parents and written information in a variety of languages.