Non-Salaried Medical Practitioners: - Protocol for Notifying and Managing Medical Treatment Liability Claims/Potential Claims (Non-Teaching Hospitals)

Applicable to: Non-salaried medical practitioners covered under the "Terms and Conditions of the Medical Indemnity - Version 2 (2004-2005)" Medical Treatment Liability Claims' Managers reporting potential and actual Medical Treatment Liability claims involving non-salaried medical practitioners

Description: This Operational Circular sets out the protocol to be followed when notifying actual or potential Medical Treatment Liability claims involving non-salaried medical practitioners (eg VMPs) working in the public sector health system.

Non-Salaried Medical Practitioners: - Protocol for Notifying and Managing Medical Treatment Liability Claims/Potential Claims (Non-Teaching Hospitals)

Purpose

As specified under the "Terms and Conditions of the Medical Indemnity - Version 2 (2004-2005)", Non-salaried Medical Practitioners ('Doctor') must report all Medical Treatment Liability (MTL) claims or potential claims to the Hospital1. This protocol specifies the reporting process to be followed by the Doctor when notifying the Hospital of a MTL claim or potential claim.

The Protocol is to be read in conjunction with the "Policy: Quality & Safety Requirements" applying to the Medical Indemnity. The Policy is available on the DoH's Indemnity website: http://www.health.wa.gov.au/indemnity/

Process for reporting

1 DOCTOR'S REPORTING REQUIREMENTS
  1.1 In summary, a Doctor must:
    where served with an actual claim, made by or on behalf of a patient, notify the relevant MTL Claims' Manager2 of that claim as a matter of urgency;
    notify the relevant MTL Claims' Manager as soon as reasonably practicable of all clinical incidents with the potential to result in a MTL claim.
    A claim occurs where a plaintiff (eg. a patient or financially dependent relative of the patient such as a child or a spouse) formally commences legal action in relation to a clinical incident. A claim can also arise where a letter, or other document is received from a patient or other claimant (or person acting on their behalf) seeking monetary compensation or expressing an intention to commence legal proceedings.
    A potential claim is an event that occurs during the patient's treatment cycle which the Doctor reasonably believes could give rise to a possible MTL claim. It includes actual or alleged matters such as:
    failure to adequately warn of risk,
    incorrect surgical procedure,
    incorrect drug treatment program,
    complications of post-operative infections, or
    poor obstetric or surgical outcomes.
    A potential claim also includes an allegation made by a patient, or other potential claimant, against the Doctor either during or after the treatment cycle that is of such a nature as to reasonably suggest that a claim may be made.
  1.2 Where the Doctor recognises at the time of treatment, or soon thereafter, that an incident has the potential to result in a MTL claim, the Doctor must document the incident.
    For incidents identified while at the Hospital, the Doctor must document the incident in the Hospital medical record. The Hospital entry should be a strictly factual account of the incident setting out the clinically relevant details including the outcome, the treatment plan and any treatment provided.
    [Note: Other reporting systems that may need to be complied with include the Australian Incident Monitoring System (AIMS), Sentinel Event Notification Form and Coroner's Notification.]
  1.3 Whenever a Doctor becomes aware of a potential or actual MTL claim they must notify the MTL Claims' Manager by completing a "Medical Treatment Liability Notification Form" (attached).
    A claimant may bring a claim against the Hospital and the Doctor, or either one or the other. It is important therefore to distinguish the intent of the claim. Where the claim or potential claim does not include the Doctor, he or she does not need to complete a MTL Notification Form.
  1.4 Documentation - Potential claim against the Doctor:
    The Doctor must complete the MTL Notification Form and provide this to the MTL Claims' Manager.
    The Doctor must ensure the patient's medical record (from the Doctor's rooms) is retained and kept in a safe place at least until after the limitation period for commencement of proceedings has expired. (Note: There is no implied waiver of patient confidentiality with potential claims.)
  1.5 Documentation - Actual claim against the Doctor:
    Documentation required to manage the defence of the claim may include:
    Advice from a manufacturer or supplier regarding equipment failure.
    Any related complaints made to the Doctor about the clinical incident - whether verbal or written.
    Any related complaint received through the Office of Health Review.
    Any application, made under Privacy legislation, for a copy of the patient's medical records held in the Doctor's rooms.
    All correspondence from the patient (or other claimant), patient's lawyer or people acting on behalf of the patient, concerning the alleged clinical incident and/or the claim.
    All documentation issued by a court, including any summons or writ.
    All typed or hand written notes relevant to the clinical incident including the patient medical records held in the Doctor's rooms (Note: see 2.4 below).
    All relevant documentation in the possession of the Doctor is, for active claims, to be sent to the MTL Claims' Manager.
    (Note: Where the claimant is pursuing a claim, either through the court system or by a letter outlining the allegations of negligence and requesting an admission of liability and monetary compensation, there is implied waiver of patient confidentiality.)
2 THE MTL CLAIMS' MANAGER ROLE
  2.1 When a MTL Claims' Manager becomes aware of a potential or actual MTL claim against the Doctor, the Hospital or both, they are to advise Legal and Legislative Services, DoH.
  2.2 For all potential and actual claims, MTL Claims' Managers are to complete a "RiskCover Clinical Incident Notification Form" (attached) and forward this together with the MTL Notification Form (for claims where the Doctor is named) to Legal & Legislative Services.
 
2.3 If the notification occurs by way of a Writ of Summons, Originating Summons or other Court process the documents referred to in 2.2 above, with the Court documents attached, must be forwarded within 1 working day. All other notifications are to be made within 3 working days.
  2.4 For actual claims where the Doctor is included, the MTL Claims' Manager will, in addition to the information noted in 2.2 and 2.3 above, compile and forward to Legal & Legislative Services information noted in 1.5 together with other relevant material such as:
    Any related complaints made to the Hospital about the clinical incident - whether verbal or written.
    Freedom of Information (FOI) requests.
    Hospital Medical Records.
    Pathology or radiology reports.
    If the documentation is voluminous and it is not possible to compile, copy and forward all relevant documentation to Legal & Legislative Services within one working day, then only the completed RiskCover Clinical Incident Notification Form, the MTL Notification Form and the Court documents need be forwarded in the first instance. Notify Legal & Legislative Services of the situation and forward all other documentation as soon as possible.
  2.5 Where the Doctor provides a copy of the patient's medical records held at his or her rooms, this information is to be forwarded to Legal & Legislative Services - without being copied by the Hospital. For potential claims, the patient's private medical records remain with the Doctor. Only if the claim becomes active should the patient's medical records be sought from the Doctor.
3 LEGAL & LEGISLATIVE SERVICES' ROLE - DOH
  Legal & Legislative Services will:
  Review the information submitted and determine whether the Doctor and / or the Hospital need to clarify or provide additional information regarding the claim / potential claim.
  Notify RiskCover of the claim / potential claim.
  Write to the Doctor acknowledging receipt of the MTL Notification Form and, in the case of actual claims, explaining the directions provided to RiskCover.
  Write to the MTL Claims' Manager acknowledging receipt of the RiskCover Clinical Incident Notification form, providing a copy of the letter sent to the Doctor and, in the case of actual claims, explaining the directions provided to RiskCover.
  For actual claims, liaise with the lawyer appointed by RiskCover and provide all relevant material (legal privilege is preserved).
4 RISKCOVER'S ROLE
  RiskCover will:
  For potential claims:
  Retain the RiskCover Clinical Incident Notification Form for reference in the event of an actual claim being made at a later time.
  For actual claims against the Doctor and / or the Hospital:
  Brief the claim to a law firm (panel lawyer).
  Manage the claim in consultation with Legal & Legislative Services.

Ms Suzanne Hillier
ACTING DIRECTOR
LEGAL AND LEGISLATIVE SERVICES



1. For the purpose of this Circular, ‘Hospital’ means any public hospital or public health care institution and any other place, excluding Teaching Hospitals, where the Doctor provides Medical Services with the express permission of the Minister.
2. MTL Claims’ Manager - this is the Director of Medical Services (or equivalent or delegate), the General Manager or Health Service Manager (or equivalent or delegate).

Date of effect: 27 September 2004 to

Policy Framework

Supporting information