Court vindicates doctor’s patient management

Despite doctors’ best efforts, some patients won’t comply with the treatment advice they are given. When things go wrong for these patients, the doctor is often in the firing line, so there are important steps to take in managing these patients.

In one court case, we assisted a plastic surgeon member to successfully defend allegations of negligence over his management of a patient who hadn’t complied with his advice to stop smoking.

The surgeon urged the patient to stop smoking at least two weeks before the revision breast reduction procedure and six weeks post-operatively, highlighting the risks and possible complications if she continued.

The morning after the procedure, the patient’s right nipple appeared bruised and congested. The surgeon observed a level of venous congestion, which did not require immediate intervention.

Over the next 10 days, the patient visited the surgeon three times due to her right nipple. While it appeared bruised on the first visit, both the surgeon and his practice nurse observed it to be pink and sensate during her second visit. By day 10, the patient’s nipple appeared to have improved, so the surgeon felt any complications had been avoided and the nipple was safe.

Post-operative complications arise

A week later, the patient visited the surgeon complaining her nipple had gone hard and leathery. After examining it, he determined the nipple was not viable. As a result, the patient required multiple reconstructive surgeries.

The patient brought a civil claim against the surgeon alleging he had breached his duty of care to her. She claimed he failed to give appropriate advice on how smoking can affect surgery, adequately examine her post-surgery, and more aggressively treat the venous congestion in the immediate post-operative period.

Supporting records essential

The patient’s evidence led the court to find her recollection of events could not be accepted. Conversely, the court found the surgeon’s evidence regarding the pre and post-operative events was accurate because it was consistent with testimonies of the nursing staff and, most importantly, the documented medical notes.

The patient’s version of events was deemed unreliable where it contradicted the medical records and expert opinion. For example:

• The patient claimed the procedure was purely for cosmetic reasons. However, she signed the Specialist Eligibility Form, which clearly identified neck and shoulder pain as the motivation for the procedure.
• The patient claimed she was told to only attempt to give up smoking prior to surgery and, if this wasn’t possible, to cut down to four to five cigarettes a day. However, the surgeon maintained he said she needed to stop smoking altogether and denied that any number of cigarettes was acceptable. This is consistent with his notes, an information pamphlet given to the patient, the expert evidence and the consent form.
• The patient says she complained of significant pain on the morning of the procedure. Again, this did not match the notes as the observation chart recorded low pain scores, and no recording of pain in the nurses’ progress notes.
• The patient also said she complained of significant pain in the three consultations following the initial procedure and remained on strong painkillers throughout the month. This contradicts the surgeon’s medical notes, the practice nurse, and the patient’s PBS history.
• Finally, the court rejected the patient’s allegations she had significant swelling in her right breast after the procedure because there were no observations made by the surgeon or nursing staff.

Managing non-compliant patients

If you think a patient is non-compliant, whether it be lifestyle changes or medications, it’s important to demonstrate that all reasonable steps were taken to provide appropriate care, and the patient made an informed choice not to comply.

Have a frank discussion about the importance of compliance and the likely outcomes from non-compliance. Do this each visit and document your advice. Explain to the patient why the recommended management plan is preferable and give them information to take away and read. Also consider encouraging the patient to seek a second opinion and ask them to include family members in the discussion to obtain their views.

Expert witness evidence crucial

Our medico-legal team defended the allegations on the basis that the surgeon did not breach his duty of care and his ‘wait and see’ approach was appropriate.

Supportive expert opinion was obtained from a plastic surgeon on the member’s management of the patient. When presented with high resolution photographs of the patient’s nipple on the first day post-surgery, he supported the conservative management provided to the patient.

A different expert engaged by the patient, did not support the view that the surgeon’s conduct was below standard.

A second expert engaged by the patient thought the photos identified a very congested nipple caused by an identifiable pathology (such as a haematoma or tight suture). He gave evidence that the patient should have been returned to theatre so the issue could be remedied. In failing to do this, he believed the surgeon had breached his duty of care.

Ultimately, the court found the balance of the evidence did not support there was a reversible cause of the venous congestion. Therefore, the surgeon’s ‘wait and see’ approach was appropriate, and the aggressive approach offered by the patient’s expert was disregarded. The court ruled in favour of the plastic surgeon and dismissed the case.

Key lessons

• If you are dealing with a non-compliant patient, explain the implications if they don’t comply and record the conversation in your notes.
• Where there are conflicting versions of events, the court will look to any medical records to determine what occurred. This is a healthy reminder to record the advice given, discussions you had about compliance and the likely outcomes from non-compliance, at each visit.

Useful resources

Managing differences: care and compliance
Medical records - the essentials
How to end a doctor-patient relationship

The case discussed in this article is based on a real case. Certain information has been de-identified to preserve privacy and confidentiality.

Important: Liability limited by a scheme approved under Professional Standards Legislation. Legal practitioners employed by Avant Law Pty Limited are members of the scheme.

Disclaimer: The information in this article does not constitute legal advice or other professional advice and should not be relied upon as such. It is intended only to provide a summary and general overview on matters of interest and it is not intended to be comprehensive. You should seek legal or other professional advice before acting or relying on any of its content. The information in this article is current to 20/11/2023.