Complaints, claims and your medical indemnity cover
There are a number of reasons why you may need to respond to adverse clinical events. These can include:
- Complaints by a patient or your employer. Often, though not always, these complaints are made directly to you or to your practice. If you fail to address the complaint satisfactorily, then it may be escalated to the Health and Disability Commissioner (HDC) or to the Medical Council. However, on occasions, you may only become aware of a complaint against you once the HDC gets involved—usually when they issue you with a request for your response.
- Adverse event inquiries. Typically, these occur in a hospital setting following an adverse event you were involved in. Known as “root cause”, “sentinel” and “adverse” event investigations, their aim is to understand what caused the adverse event and the circumstances surrounding it.
- Coroner’s inquiries and inquests. These are investigations conducted by a coroner who examines the circumstances of a patient’s death, and the circumstances surrounding it.
Patient complaints, adverse event investigations, and coronial inquiries are often the prelude to other processes which may impact you.
Professional disciplinary processes
These are usually managed under the HDC or the Medical Council of New Zealand (MCNZ). If the HDC leads the investigation, they will focus on whether you have breached the HDC Code of Patient Rights. At the end of the investigation, the Commissioner will provide a report stating whether they believe you breached the Code and the reasons for that opinion. If a breach is found (and occasionally where one is not), the Commissioner may:
- Make recommendations to the service provider. For example, they may require you to write an apology to the patient (and/or their family); refund the patient’s consult fees (although this is rare) or that you (or your practice) make certain changes to your practise or processes.
- Report their opinion to any person they consider appropriate. This includes the MCNZ (with or without recommendations).
The Commissioner may also refer you to the Director of Proceedings to decide whether to issue disciplinary proceedings before the Health Practitioners Disciplinary Tribunal or before the Human Rights Review Tribunal. If you are brought before the Director of Proceedings and convicted of the charge, the Disciplinary Tribunal may apply sanctions on you from censure through to the cancellation of your registration.
When a complaint is made to the Medical Council, the Council must refer it to the HDC and not take any action (except in limited circumstances) until the HDC or the Director of Proceedings has finished dealing with it.
At that point, there are several options available to the Medical Council. These include:
- referring you to the Health Committee to inquire into the your fitness to practice.
- referring you to a Competence Review Committee for assessment and report.
- or referring you to a professional conduct committee (PCC).
The role of a PCC is to investigate the complaint and decide whether to take further action, including (but not limited to) laying a disciplinary charge before the Disciplinary Tribunal.
Patient complaints or adverse events can lead to an investigation that may culminate in adverse employment consequences for you as a practitioner, such as dismissal.
A small number of complaints or adverse events can result in a criminal charge against you. The most common charges of this nature arise from intimate examinations of female patients, and failures to properly obtain a patient’s informed consent. In these situations, you may be charged with assault, indecent assault, sexual violation, or even rape. In exceptional circumstances where a patient dies as the result of “a major departure from the standard of care expected of a reasonable person”, you may be charged with manslaughter.
New Zealand’s accident compensation scheme has substantially, but not wholly, eliminated the chance you may be exposed to damage claims for personal injury. However, there are still a few ways that civil claims can be brought against you. The main ones are:
- Claims for ‘exemplary’ damages. These are damages designed not to compensate the victim, but to punish the wrongdoer and to deter others. Exemplary damages are available in cases of negligence, but only where it is established that the practitioner’s conduct was intentional or reckless, and is judged by the court to be “outrageous”. In New Zealand, awards of exemplary damages are quite rare, and when they are made, they are relatively modest.
- Compensatory damages for psychiatric injury caused by a practitioner’s negligence.
- Proceedings before the Human Rights Review Tribunal against practitioners for a breach of the Code of Patients’ Rights. The Director of Proceedings (upon referral from the HDC) usually brings such proceedings. In some exceptional cases, they may be brought by an “aggrieved person” including a patient. If you are found guilty, the Tribunal may not impose damages arising out of “personal injury”. However, it may impose damages for:
- “flagrant disregard” of the patient’s rights under the Code (effectively “exemplary” damages).
- damages to compensate for pecuniary loss and loss of benefits suffered as a result of the breach, and for humiliation, loss of dignity, and injury to feelings.
New Zealand law does not require you to maintain professional medical indemnity cover. However, in the public health system, it is a term and condition of employment that you do. In these instances, your employer usually covers the cost of maintaining your indemnity cover.
Aside from any legal obligation to maintain professional medical indemnity cover, it makes good sense for practitioners to do so, due to the:
- Potential repercussions. The professional, employment, reputational, and financial repercussions arising out of a complaint or an adverse event investigation, can be very substantial. In the majority of such cases, it is prudent for you to be legally represented, and the cost of such representation tends to be high.
- Legal costs of defence. The number and complexity of the various processes following a complaint or adverse event—and the time and attention which they demand—can quickly escalate legal costs. In some cases, it can become so substantial as to be virtually prohibitive.
- Risk of exposure. While the accident compensation scheme has substantially reduced the likelihood that you will be exposed to damages for claims of personal injury, you are still exposed to exemplary damages, damages for psychiatric injury resulting from negligence, and to damage awards from the Human Rights Review Tribunal.
To learn more about what our medical indemnity insurance does and does not cover, visit our policy page.
As soon as you become aware of a complaint or adverse event—or even of circumstances that could give rise to a complaint—you should notify NZMII immediately.
First and foremost, this allows NZMII to provide you with the appropriate level of support, legal or otherwise. Early notification also allows time to collate all relevant documents and information, and to complete any report which may be required, within the timeframe given. (The timeframes tend to be quite limited, and extensions may be difficult to obtain). Moreover, notifying us early will also prompt you to record your description of events while they are still relatively fresh in your mind.
Above all, you should refrain from responding to any complaint, or any request for a report or an interview, without notifying NZMII first and obtaining appropriate guidance. Under no circumstances should you consent to a Police interview without obtaining legal advice first.
If you are asked for a report concerning the care you provided a patient, describe the relevant events chronologically, as objectively as possible, and without embellishment. Also record the extent of any relevant circumstances surrounding the event, (for example, staffing levels at the time, extreme tiredness, the distractions of other cases). Your report should be cross-referenced and consistent with the clinical notes and records.
Under no circumstances should you make retroactive amendments to the clinical records, even if it is just to fill a gap which was inadvertently left in the notes, or to correct what you consider to be an error. If there is a gap or an error in the notes, it should be addressed in your report; not by amending the notes.
Finally, while patient complaints, adverse event investigations, and the various processes that may ensue are all part of the modern medico-legal landscape, most practitioners find them very stressful. If (when) it happens to you, do not go through it alone. As well as NZMII, medical colleagues and others can support you. Do not hesitate to reach out to them for guidance and support.