Coronial matters involving hospital doctors

Case study

Dr Green is a registrar working a night shift at a busy tertiary hospital. She’s writing up notes at the nursing station when there is a MET call for a post-operative patient. Dr Green attends the MET call and commences resuscitation with two colleagues. The patient is eventually stabilised and sent to ICU, but he doesn’t survive.

The patient was a 54-year-old man with no comorbidities who underwent a routine hernia operation. The patient suffered a massive stroke which caused an irreversible brain injury. The death is reported to the State Coroner (the Coroner) and several months later Dr Green is asked to attend a meeting with the hospital’s legal team.

The Coroner

It is a legal requirement to notify the Coroner of a reportable death. Once notified, the Coroner will investigate to determine the cause of death. This can take two weeks, two years, or even longer! The matter may be closed after investigation, but a small number of reportable deaths will proceed to a Coronial Inquest (Inquest), which is a court hearing run by the Coroner. There are some state differences, such as in the ACT where the entire process is referred to as an Inquest, even if there is no hearing.

Inquests are generally held when further investigation of the death is in the public interest. The Coroner MUST hold a mandatory Inquest in some circumstances, including a death in custody or the death of a patient detained under a Mental Health Act.

Who looks after the doctor?

A doctor who is employer indemnified and/or employed by a public hospital will usually be offered assistance and representation by the hospital lawyers. Hospital lawyers often coordinate and facilitate responses to the Coroner during investigation, and you should cooperate with this process. If the matter proceeds to Inquest, the hospital lawyers will engage Crown or State Solicitors who may contact you for a statement.

If you work in a private hospital, the offer of assistance or representation will often depend on the terms of your engagement. In some instances, you will be offered representation. But if you are a locum or a VMO, you may be advised to contact your own MDO for assistance.

Will the hospital “hang me out to dry”?

This is one of the common misconceptions we hear during requests for advice on coronial matters. If you are employer-indemnified, and the hospital offers you representation, there is no benefit to a hospital in hanging you out to dry. If they do, it will adversely impact the hospital.

That is not to say there won’t be other reasons why it might be appropriate for a doctor to be represented separately. The most common reason is a conflict of interest. If the hospital lawyers are representing the doctors, nurses and everyone else involved in the patient’s care, and there is a significant difference between the versions of events provided by a doctor and another employed healthcare worker, the hospital lawyers may advise the doctor it is in their best interests to seek separate representation.

Another example is where the Coroner raises the likelihood of a serious adverse finding and/or referral to Ahpra for a doctor involved in the case. This may be the result of an independent expert report, and affected doctors are usually offered a right of reply. Again, the hospital lawyers might direct the doctor to contact their MDO for advice.

Is it better to be represented by the hospital or my MDO?

We generally recommend accepting representation from the hospital if it is offered to you. This is particularly relevant if your involvement in the case is minimal. We don’t like to single doctors out unless it is necessary, as this can often draw unwanted attention during the Inquest. In our experience, it is best to stay with the ‘herd’. The interests of the hospital and employed doctors generally align, so it is usually best to continue to receive assistance from the hospital lawyers who have access to all the relevant documentation.

How can my MDO assist me if I accept hospital representation?

We are always happy to discuss any concerns or questions you have about your involvement in the case, and the coronial process in general. We can also act ‘in the background’ to review any draft reports or statements. The importance of us remaining in the background is that it’s not appropriate for an MDO to actively interfere in the legal representation you have accepted from the hospital. If anything comes up that raises significant concerns, we will then discuss with you whether it might be in your best interests for MDA National to take over representation.

Most hospitals are comfortable with (or even encourage) their MDO-insured doctors seeking advice or requesting the review of a statement by their MDO – but you should check with them first. We are used to working closely with the hospitals.

Some handy tips

• Don’t gratuitously add to, or alter, the medical record after a patient is deceased. It’s a bad look to see four lines of notes written at the time the patient died, followed by four pages of defensive or self-serving notes written two weeks after the event.
• Contact MDA National if you become aware of a coronial investigation regarding a patient you have treated. We can talk through the details of the case, and provide advice and support to best suit your individual circumstances.
• A coronial investigation is distinct from a claim for negligence. Our article Patient claims involving hospital doctors may help to explain the distinction.

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