Fatigue: a medico-legal risk?

Posted by dashboard at April 27, 2020 2:39 pm Blog
Fatigue: a medico-legal risk?


We have had several inquiries recently about the issue of fatigue and whether it would constitute a medico-legal risk. Put another way, if a mistake happened when a practitioner was in a fatigued state, what risk would they be carrying of an adverse finding against them?

There has been available for some years now a body of evidence which establishes the effect of sleep deprivation and disruption. One might expect that those working in health would be among the most cognisant of the risks of working (and driving) while fatigued, but the demands of the health system in combination with the altruistic personality features of a health professional appear to have combined to affect a sector-wide denial of the risks health professionals operate under.

Research on sleep and fatigue

Thanks to the work of the Sleep Wake Research Centre at Massey University, the Division of Sleep Medicine at Harvard Medical School and others, there is now well-established evidence for the following:

  • A sleep deprived individual will not be able to accurately assess his or her degree of fatigue.
  • Those working night shifts will not be capable of functioning at the same level as those working during the day, especially during the period 0200-0600 hours.
  • We are more likely to fall asleep involuntarily while undertaking a routine task such as driving.
  • A single sleepless night reduces performance to a level similar to a blood alcohol level of 0.1%.
  • A person on call overnight does not sleep as well as one who is not on call.
  • When woken from deep sleep, there is a period where the individual is unable to function at a normal level, while they fully wake up.
  • For those on night shifts, naps of 20-40 minutes may optimise performance by reducing sleep debt.
  • Doctors and other health professionals frequently incur a combination of fatigue factors: long work hours and hours rostered on call, roster changes, and frequent night work will have a cumulative effect on the individual.
  • You cannot build up a sleep credit, that you can then draw upon when working excessive hours. By contrast, you will build up a sleep debt which must be “repaid” with subsequent sleep. Sleep loss is cumulative.
  • Short-term relief can be achieved with the use of stimulants such as caffeine, but sleep is essential for full physical/mental function.

A fatigued medical officer

The NZ health system (and other similar systems) has been slow to implement rosters which recognise the risk factors identified above, even though health and safety legislation makes the employer responsible for taking all practicable steps to ensure the safety of employees at work. Medical practitioners, with their expertise in health and physiology, are likely to be regarded by the legal system as bearing some responsibility for their own safety, and that of those they employ or supervise.

To date, the Health and Disability Commissioner (HDC) has been prepared to recognise the impairment a fatigued doctor may be operating under as a defence to a breach of the HDC Code. In 2007 the Commissioner had to consider the conduct of a Medical Officer working in a rural hospital. The patient was a 66-year-old male suffering shortness of breath thought to be caused by fibrosing alveolitis or pulmonary fibrosis. His condition deteriorated, and he was admitted to the hospital as an inpatient. A respiratory physician performed a transbronchial biopsy, and the patient was sent home on weekend leave by the Medical Officer. The patient became breathless early the next morning and returned to hospital, where he was diagnosed with a pneumothorax. He continued to deteriorate and was airlifted to a larger hospital two days later. Despite intensive care, the patient died.

When considering the conduct of the Medical Officer, the Commissioner noted that he had been rostered to 2 consecutive 24-hour shifts and had been on duty for over 20 hours when the patient returned to the hospital from weekend leave. The doctor was called at 4am (having slept since 11.30pm) and decided that an urgent chest x-ray was unnecessary and elected to keep the patient on high-flow oxygen until the radiology department opened.

The expert advice to the Commissioner was that this was a cognitive error, attributable to the excessive on-call hours, and that no one should be on duty for more than 16 hours. The rural hospital’s defence was that the roster was designed by the medical staff, and that they had to design the roster in that fashion in order to be able to recruit and retain doctors.

The Commissioner accepted that, in the circumstances of a rural hospital with limited funding and staff, the system for on-call medical officers was reasonable.


Learning points

We cannot find any more recent cases where the Commissioner has ruled on this specific issue. While in 2007 the Commissioner was prepared to relax health and safety standards in the face of a rural hospital struggling to find staff, we would suggest that the Commissioner could very easily have made a different decision that found the Medical Officer and/or the rural hospital culpable.

More than 10 years on, with more knowledge about this issue and its impact on patients, they may well see things differently. We recommend that practitioners familiarise themselves with the factors that cause fatigue, and act (or sleep) accordingly.

Will NZMP cover you in the event of an error attributable to fatigue? Yes, we will. NZMP has no exclusions on policy cover in this regard. However, we would caution that this is probably not the issue that will concern you the most should such a circumstance arise. The harm that could affect patients is probably the consideration first and foremost in your mind, and rightly so. Given the evidence now available, this issue should always feature in our broader practice considerations.



If you are concerned that fatigue may soon result in a complaint—or already has—please get in touch with us to access our team of medico-legal experts. Whatever the outcome, we’ll guide you through the process.