Assessing care after adverse events: the importance of clinical guidelines

Assessing care after adverse events: the importance of clinical guidelines

Summary:

When a patient experiences an adverse event, it can be tempting with the benefit of hindsight, to suggest that the care provided was inappropriate and something should have been done differently.

Articles
19 / 09 / 2022

Introduction

When a patient experiences an adverse event, it can be tempting with the benefit of hindsight, to suggest that the care provided was inappropriate and something should have been done differently. However, the law is clear that the appropriate standard of care is to be measured against what was widely accepted by peer professional opinion as competent professional practice at the time the care was provided.

Scenario – child’s hand injury after a fall

An eight-year-old child was playing in a canal drain when he slipped and the rock he had been throwing fell and crushed his hand. Unfortunately, when he presented at the hospital with an open compound fracture of his left thumb, staff were told he had slipped and fallen on a wet cement floor.

His doctors administered antibiotics, a penicillin derivative (flucloxacillin) initially and a few hours later, a cephalosporin (cephazolin), consistent with recommendations contained in the 14th edition of the Therapeutic guidelines – Antibiotic publication (the Antibiotic Guidelines). They then operated to repair the hand. However, the child's thumb developed an infection that resulted in osteomyelitis and gangrene. Ultimately the thumb had to be amputated. His parents claimed the hospital had been negligent and that gentamicin should also have been administered as an appropriate therapy for his type of injury.

The role of guidelines in determining standard of care

After an adverse event, questions will often be asked about whether the healthcare team provided care in accordance with the required standard.

As in this case, with the benefit of hindsight, experts may disagree on what should have been done at the time.

The law on negligence differs slightly between states, but broadly in Australia health professionals will not have breached their duty of care if, at the time the care was provided, they were acting in a manner that was widely accepted by peer professional opinion as competent professional practice.

The law on negligence differs slightly between states, but broadly in Australia health professionals will not have breached their duty of care if, at the time the care was provided, they were acting in a manner that was widely accepted by peer professional opinion as competent professional practice.

Clinical practice guidelines then become important evidence of what was known and accepted at the time.

How should the court decide when professional opinions differ?

The legal position is clear that ‘widely accepted’ has its ordinary meaning. It does not mean ‘universally accepted’.

This acknowledges that there can be more than one body of widely held peer professional opinion. These may even be inconsistent and still considered competent and appropriate.

However, courts will generally not accept a practice that is “eccentric, idiosyncratic, experimental or ‘alternative’” as being widely accepted by peer professional opinion.

In negligence cases, the law also leaves open the possibility that a court could find that widely held clinical opinion is ‘irrational’ or unreasonable. The Court of Appeal in the child's case stressed that a court should not do so lightly. They considered that a court should only find an opinion irrational if on the evidence available, it could be satisfied that there was no rational basis for the opinion. It would not be enough just to show that there was evidence justifying an alternative approach.

The role for clinical judgment

The law also recognises guidelines do not always provide clear consensus on management.

In the child's case, both parties’ experts agreed that gentamicin did not appear in the Antibiotic Guidelines’ recommendations for treatment of compound (open) fractures. However, the experts differed on how closely guidelines ought to be adhered to.

On one side, it was argued clinicians should take guidelines into consideration but use clinical judgement to determine the appropriate antibiotic regimen on a case-by-case basis. Guidelines, according to this view, were not ‘protocols which are adhered to slavishly, as in a box-ticking exercise’. So, as some of the experts suggested, even if a treatment such as gentamicin is not mentioned in the Guidelines, it would be appropriate to consider adding it for severely contaminated wounds.

The hospital’s experts, however, contended that the principles of antibiotic stewardship meant that it was important to have standard treatment regimens nationally to help avoid the development of antibiotic resistance. On this view, close adherence to guidelines was essential to avoid practice ‘according to whims’.

In fact, courts recognise clinical decision-making often involves balancing these kinds of competing concerns. Doctors are expected to use their judgment and apply guidelines to the clinical features of the patient’s presentation and the circumstances of treatment.

If departing from guidelines, document your reasoning

However, doctors are likely to come under severe censure if they wish to depart from standard treatment protocols based on their own unique views about treatment that are not supported by their peers. Varying accepted protocols on these grounds would often only be acceptable in a clinical trial setting with appropriate ethical safeguards in place.

If the circumstances mean you need to depart from applicable guidelines, you should only do so if you are satisfied your peers would agree that this departure was appropriate. Ideally, consult with peers to obtain their views.

Always carefully document the reasons guidelines were not followed.

An adverse event does not mean doctors were negligent

In this case, the evidence had established that the practice outlined in the Antibiotic Guidelines was widely held across Australia and accepted by peer professional opinion as competent.

With the benefit of hindsight, additional treatment may have been appropriate. However, based on the facts as they knew them, doctors had administered antibiotics in accordance with a regimen supported by the Antibiotic Guidelines.

Therefore, the Court of Appeal found that the child's doctors were not negligent.

Resources

Avant: Pakchung D, Court finds following clinical guidelines “not irrational”, 13 January 2022.

Australian Journal of General Practice: Pakchung D, Smith M, Hughes C. The role of clinical guidelines in establishing competent professional practice, Vol 48, Issue 1- 2, January-February 2019.

Endnotes

  1. South Western Sydney Local Health District v Gould [2018] NSWCA 69
  2. Civil Liability Act 2002 (NSW), s 50; Civil Liability Act 2003 (Qld), s 22; Civil Liability Act 1936 (SA), s 41; Civil Liability Ac 2002 (Tas), s 22; Wrongs Act 1958 (Vic), s 59; Civil Liability Act (WA), s 5PB.
  3. Wright v Minister for Health [2016] WADC 93 at 85.
  4. South Western Sydney Local Health District v Gould [2018] NSWCA 69 at 6.
  5. Gould v South Western Sydney Local Health District [2017] NSWDC 67.
  6. Health Care Complaints Commission v Grygiel [2021] NSWCATOD 28.

Disclaimer: This article is intended to provide commentary and general information. It does not constitute legal or medical advice. You should seek legal or other professional advice before relying on any content and practise proper clinical decision making with regard to the individual circumstances.

Author

Georgie Haysom is General Manager of Advocacy, Education and Research at Avant Mutual.