Saying NO to a Patient

Just before the end of 2022, a Howden-insured doctor advised us that he had received a demand for compensation from a patient.  Earlier that year the doctor had performed a laparoscopic procedure, during which the patient had suffered a trocar site injury.  A general surgeon was immediately summoned, the injury repaired, and the procedure completed without further incident.

The patient recovered well, raised no complaint in relation to the incident, and continued to consult the doctor for follow-up treatment.  However, for unknown reasons the patient had a subsequent change of heart.  Some seven months after the procedure, she advised our doctor that she was expecting to receive compensation of at least $7,000.

Brief Legal Digression

At this point it is useful to quickly review the three elements that are required to establish malpractice (or any other form of negligence, for that matter): 

1. Existence of duty of care
2. Breach of duty (by breaching standard of care required)
3. Damage or loss that is caused by the negligence and is not too remote

For doctors, the first element can be taken for granted – there is a clear duty of care owed by doctors to their patients.  The second element, the breach of that duty, is a complex area of law that we fortunately do not need to delve into.  Suffice to observe that trocar injuries are often considered at least potentially preventable, so it is probably not disputed in this case that a breach of the required duty had occurred.

The third element is the one that will occupy our attention.  For a negligence claim to succeed, the patient must be able to demonstrate that they have suffered damage or loss as a direct result of the breach of duty.  This can include financial loss (such as where an injury delays a return to work) and/or pain and suffering experienced by the patient.

What, then, was the loss or damage suffered by this patient?

Loss or Damage?

The trocar site injury was repaired immediately with the assistance of a general surgeon.  There were no further complications, no significant delay in the recovery time following the procedure, and no detectable increase in pain or discomfort.  The general surgeon’s fee was absorbed by our doctor, meaning that the patient did not face any additional financial cost.  In other words the breach of duty did not, based on the information to hand, result in any identifiable loss or damage to the patient.

That the patient’s claim appears to be without merit has no bearing on our doctor’s malpractice insurance policy response.  Cover is triggered not by proof of negligence but by the allegation that negligence has occurred.  The doctor will have access to the legal and other resources he will need to respond to the allegation.  The critical question then arises:

What should the response be?

For many doctors, there is a temptation to simply agree to demands for small amounts of compensation.  The time and effort involved in entering into correspondence disputing a version of events sometimes feels more trouble than it is worth.  This was the approach taken by Dr Lim Lian Arn when he was brought before the SMC tribunal in 2019, accused of failing to inform a patient of all the possible side effects of a steroid injection.  Dr Lim had (in my view) a strong argument he might have raised in his defence but elected to plead guilty, hoping to draw the matter to a swift conclusion.  The rest, of course, is medical malpractice history with Dr Lim receiving the maximum $100,000 fine and beginning a chain of events that ultimately led to the restructuring of the SMC tribunal itself.

At Howden our position on such cases is clear – a claim that is without merit should never be settled.  This is not so much an insurance response (although insurers have no obligation to cover such settlements) as a concern for our doctors’ reputations.  In a world of social media, news of a doctor who pays on demand circulates quickly and a single small settlement can start a repeating cycle.

Medical malpractice insurance is designed to defend allegations of negligence.  Where no negligence has occurred, the best policy is usually to allow Howden to do what you pay us for – to defend you, your clinic, and your staff.

Best wishes for a safe and prosperous 2023.

Authored by:

Mike Griffiths
Regional Director, Healthcare
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