Review of HDC cases
By Dr Peter Moodie, College Clinical Advisor
30 November 2023
Over the last two and a half years the College has been invited to review Health and Disability Commissioner decisions that relate to general practice, along with selected Coroners’ reports. We have covered 20 HDC decisions and 10 Coroners’ reports.
Role of the HDC and the coroner
The purpose of a coronial investigation is to identify a cause of death and the coroner may also make recommendations as to how such a death may be avoided in the future. It is not their role to apportion blame to an individual.
On the other hand, HDC decisions can and will identify negligence as well as making recommendations for future management. The HDC will generally require at least an apology from the health professional involved and possibly some remedial action. If the case warrants it, the HDC may refer a doctor to the New Zealand Medical Council for a further competency review.
The HDC Act
The Health and Disability Commissioner Act was created nearly 30 [LS1] years ago with the stated purpose to promote and protect the rights of health consumers and disability service consumers, and to that end, to facilitate the fair, simple, speedy and efficient resolution of complaints relating to infringements of those rights. As HDC decisions can take up to 3 years to be finalised they can hardly be called “speedy and efficient resolution”.
Unlike most other countries there is no financial reparation for medical negligence; however, the time delay in coming to a decision can be a heavy burden on the health professional involved. At least one doctor has decided to take early retirement, and another who has restricted his patient numbers and will no longer work and after hours.
- Communication breakdowns in general.
- Several doctors seeing the same patient over a period of time.
- Misreading reports or not reading other people's case notes.
- An increasing focus on medical practices and the systems they have in place.
Communication is at the heart of many complaints, particularly where there are part-time associates and locums. When confronted with a patient who has been seen by another doctor it is critical to read the previous notes and laboratory results carefully while also keeping an open mind about other possible diagnoses.
It is common for there to be a breakdown between other members of the practice team, including reception staff and nurses. One case involved three different triage nurses on different days identifying that a two-year-old had sugar in her urine but on two occasions the doctors did not read the notes. Not reading the triage notes was the fundamental problem; however, while the nurses recorded the test, they didn’t really make the connection that the child had type 1 diabetes. If they had, they would almost certainly have spoken to the doctor directly.
Communication breakdowns can also occur when a patient is in shared care with outside agencies. If a patient is discharged home, but under the supervision of a district nurse, who should be ultimately responsible for their care? In one case the patient was discharged home under district nursing care and the district nurses wanted to involve the GP but the patient objected on the basis of cost. This delayed a doctor’s visit and communication with the doctor was via a receptionist. When she was finally admitted to hospital, she died of septicaemia a few hours later. She then became a coroner’s case as the hospital clinicians would not sign a death certificate.
How we should be communicating with secondary care was highlighted in a coroner’s report covering 5 murders carried out by 5 mental health patients in the Wellington area over an 18 month period. In each case the GPs involved had great difficulty getting help for their patient, possibly because of bed shortages, but also because of non-medical mental health staff acting independently. The lead consultant psychiatrist explained that she was aghast that the GPs did not insist on talking directly to the duty consultant psychiatrist! When difficulties arise, a peer-to-peer discussion with an on duty consultant may be the best way forward.
Case notes will invariably be analysed in an almost forensic manner and will usually be found to be wanting. The MCNZ has a document outlining what a case note should contain but interestingly it does not specify, “safety netting”, which the HDC regards as important.
In the absence of having junior medical staff vetting and then writing up detailed case notes, likely with a registrar then checking them, most general practitioners would struggle to find the time to write a medico-legally perfect record. The HDC does not hold great store by what you “said or did but didn’t write down” and there is no scope to have a face-to-face discussion with the HDC.
There needs to be more work done on what is an acceptable standard of case note writing and indeed what the purpose of those notes are. For example, does a simple URTI require documented safety netting and proof that antibiotic allergy was discussed? Should a certain level of competence be taken as a given, rather than trying to document every issue.
Letters from 2ary care
Various departments in 2ary care will at times decline a referral or a request for a procedure. A MCNZ document puts the onus on the GP to explain this to the patient. This needs to change with the requirement that the department must take responsibility for communicating with the patient.
It is easy to misread decline letters which often contain formulaic text which can easily be overlooked with the assumption that the test was declined on the grounds that it was unnecessary.
There is also a tendency with discharge letters to instruct the GP to make a further sub-specialty referral when this could have been done by the hospital itself.
These are system issues that need to be discussed at a national level and the risks explained. These system risks would not be tolerated in the aviation industry if they thought that the design of the letter was open to misinterpretation.
Sub-specialty expert opinion
The HDC relies on their in-house general practitioner for a lot of expert opinion, which is a good thing. He sometimes discusses cases with his peer group to achieve a consensus view; however, there is no formal general practice consensus process, and this may need to be discussed further.
Sub-specialty opinions tend to be quite critical of misdiagnoses, but this is with the benefit of hindsight. Further, these opinions are often given without considering that pre-test probability can be vanishingly small in primary care and the subspecialist often has greater access to various diagnostic procedures.
Guidelines and Health pathways
- The HDC relies heavily on guideline documents, including Health Pathways and if they are not followed, they are then treated as protocols.
- Clinicians must be aware that there is a guideline, and that the pathway is up to date, and evidence based.
- Some guidelines are heavily influenced by secondary care input but curiously do not necessarily apply to secondary care management.
- Curiously members of the public cannot access Health Pathways.
We may need to look more critically at guidelines, particularly if they do not apply to the entire medical profession.
Generalisations from individual cases
The legal profession has a saying that “difficult cases make bad law” and this may well be the situation with clinical cases. As an example, a coroner recently opined that as a patient had deliberately taken a fatal overdose of his own morphine, all such drugs should be kept in a locked box!
Finally, we are lucky to have a system like the HDC but that doesn’t mean that it is perfect, and it should be open to regular review.