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Editors --- "ALA National Conference 2018 awards" [2018] PrecedentAULA 73; (2018) 149 Precedent 41


ALTERNATIVE FAX

SHOULD DOCTORS STILL FAX PATIENT RESULTS?

By Gabrielle Feery and Amy Johnstone

Recent coronial findings have made mixed recommendations in relation to the use of fax and other methods of communication to share patient results and healthcare plans. It is timely then to review whether current practices still meet the relevant standard of care, and whether these coronial findings have implications for medical negligence claims and ultimately doctors’ insurance.

Doctors rely on a variety of methods to communicate patient results, including mail, fax, email and more recently by accessing and updating digital health records.

Recent coronial findings in Victoria and South Australia have highlighted potential difficulties for medical practitioners who rely on communicating patient information by traditional methods such as fax and mail in an increasingly digital age.

This may well be an area for an increasing number of claims by patients if doctors continue to rely on fax and ordinary mail alone, given the argument that the exclusive use of such methods of communication may now fall below the standard of care. This argument is only likely to gain traction as the use of quicker, more efficient methods of communication, such as email, are adopted more universally.

What then have recent findings recommended and what is the likely standard of care that can be inferred?

This article examines the coronial findings in relation to the deaths of Mettaloka Halwala and Marjorie Aston to discuss the relevant factors in selecting an appropriate method of communicating patient results and healthcare plans. While these decisions are limited to the coronial jurisdiction, they provide a useful guide to practitioners.

INQUEST INTO THE DEATH OF METTALOKA MALINDA HALWALA

In May 2018, Victorian Coroner Rosemary Carlin handed down findings following an inquest into the death of Mr Mettaloka Halwala. Mr Halwala was a 58-year-old New Zealand resident who was working in Tatura, Victoria, as a civil engineer, when he was diagnosed with Hodgkin’s lymphoma in September 2015. Mr Halwala’s care was initially undertaken at the Austin Hospital in Melbourne, following which his care was transferred to the Goulburn Valley Hospital (GVH). Mr Halwala’s care was then supervised by a visiting haematologist who attended GVH monthly to see patients.

On 11 November 2015, Mr Halwala underwent a positron emission tomography (PET) scan at the Austin Hospital, ordered by the treating haematologist. The scan was reported on by a nuclear medicine physician, who reported ‘excellent, complete metabolic response to treatment’.[1] However, the report also noted the development of new findings in both lungs, which were noted to be consistent with toxicity from his chemotherapy, or infection.

The results of the PET scan were mailed to the haematologist, and faxed to a number at the hospital where the haematologist was based. The faxed results were never received by the haematologist and he was not phoned about the contents of the report by the nuclear medicine physician who reported on the scan.

On 13 November 2015 Mr Halwala underwent a further dose of chemotherapy at GVH. On 16 November 2015 Mr Halwala called the haematologist’s rooms, reporting to the doctor’s secretary that he was not feeling well, and was advised to go to hospital. At the end of the day of 16 November 2015, the haematologist opened his mail and read the PET report for the first time but took no further steps, as he was aware that Mr Halwala had been advised to attend hospital if he felt unwell.

Mr Halwala never made it to hospital, and early on 17 November 2015 he was found deceased in his hotel room. The autopsy report stated that Mr Halwala had died from complications of the chemotherapy.

Coronial findings and recommendations

Coroner Carlin stated that Mr Halwala had been let down by the medical profession and that the evidence presented at the inquest had displayed a ‘significant disconnect between the expectations of the doctor who performed the scan and the treating doctor in relation to the communication of those results’.[2]

Coroner Carlin accepted that the nuclear medicine physician should have appreciated that the PET scan results would not have been expected by the referring doctor, and consequently the practitioner should have directly communicated with the referring doctor about the result and with some degree of urgency. She noted that this communication should have been through a telephone call to the haematologist either on the night of 11 November 2015, or the next morning.

The evidence presented by one medical expert was that fax was still very commonly used by the profession. However Coroner Carlin noted that it was ‘difficult to understand why such an antiquated and unreliable means of communication persists at all in the medical profession.’[3] She found that it was not suitable to have used fax to convey the results in Mr Halwala’s case.

The Coroner considered other methods of conveying test results, including through electronic distribution, such as email, or the use of systems such as Healthlink, an organisation that could provide reports electronically. Coroner Carlin noted that while such a system would never do away with the requirement for direct communication in particular cases, she stated that the use of electronic distribution is ‘obviously a vastly superior method of communication compared to facsimile transmission’.[4] The Coroner stated that in her opinion, electronic distribution of patient results should be used regularly by the profession, in addition to any other more direct method of communication.

In summarising the difficulties with using fax, the Coroner noted that:

‘anyone who works in a large organisation will be familiar with the scenario of shared combination fax/printers and the potential for documents to be inadvertently collected by the wrong person, placed in a pile next to the machine or just to go missing’.[5]

In light of the failings caused by practitioners’ use of fax in Mr Halwala’s case, Coroner Carlin recommended that the Austin Hospital phase out fax transmission of imaging results as a matter of priority.[6]

While the Coroner was clearly concerned by the medical profession’s reliance on fax to communicate test results, it was not so long ago that a Coroner was encouraging the use of such technologies in handing down findings in relation to the death of Marjorie Aston in South Australia.

INQUEST INTO THE DEATH OF MARJORIE IRENE ASTON

On 19 December 2012, Marjorie Aston attended a cardiologist in relation to her atrial fibrillation and was prescribed warfarin. She acquired this medication from a pharmacist on the same day and began taking one 5mg tablet daily. On 21 December 2012 Ms Aston underwent INR testing (a measure of the time for blood to clot). The INR test request form did not ask that the general practitioner (GP) be copied into the results. Ms Aston was not tested again until 5 January 2013, when she was admitted to hospital and died.

The specialist had dictated a letter to Ms Aston’s GP on 19 December 2012 which was sent by ordinary mail. The letter advised that Ms Aston had been commenced on warfarin and would undergo her first INR test on 21 December 2012. The letter also implied that the GP would be responsible for ongoing INR monitoring.

Unfortunately, due to the Christmas break the letter did not reach the GP (who in fact was only located across the car park) until 9 January 2013, four days after Ms Aston’s death.

At the inquest, it was established that Ms Aston died on 5 January 2013 as a result of right subdural haematoma due to blunt head trauma with contributing excessive anticoagulation.

Coronial findings and recommendations

On July 2015, South Australian Deputy State Coroner Anthony Schapel handed down his findings in relation to the death of Ms Aston.[7] Coroner Schapel found that on 4 January 2013, Ms Aston struck her head on the end of her bed and this, in conjunction with a dangerous level of anticoagulation, resulted in her suffering a subdural haematoma that ultimately resulted in her death.

One aspect of the medical treatment highlighted by the Coroner was the failure of the cardiologist to effectively communicate with Ms Aston’s GP after commencing her on anticoagulation medication.

The Coroner noted that the letter was not faxed or emailed to the GP, ‘such modern means of transmission not being routine in [the specialist’s] practice’.[8] He found that ‘the archaic means of transmission’, being by ordinary post, was a contributing factor to Ms Aston’s death.[9]

The specialist gave evidence at the inquest that it was common for a specialist to communicate with a GP in the way that he did in this case. However, the Coroner recommended that specialists take advantage of all available modern technology in communicating with other practitioners regarding patient care.

An expert engaged by the court gave evidence that the specialist’s method of communication in this case was an ‘unsafe practice’, regardless of whether it was standard. They suggested that a simple phonecall or fax could have been used to communicate with the GP. The Coroner considered that an email would also have been sufficient.

Among his recommendations, Coroner Schapel noted that:

‘in circumstances where the specialist initiates warfarin therapy but does not intend to manage that therapy, the specialist should immediately advise the patient’s general practitioner, by the most efficient method of communication available, that warfarin therapy has been initiated and that the general practitioner is expected to manage that therapy’.[10]

The Coroner recommended that the practice of communicating via ordinary post be curtailed and recommended email and/or fax transmission, although he noted that in some cases it may be necessary for the specialist to communicate by telephone.

CURRENT LAW

In light of these different recommendations in relation to the communication of patient results and healthcare plans, it is timely to review how the standard of care is determined by the law in Australia.

In Victoria, the standard of care to be applied when establishing medical negligence is that of the ordinary skilled person exercising and professing to have that specialised skill.[11]

A statutory ‘peer professional opinion’ defence exists in all Australian states,[12] with a professional not held to be negligent if they acted in a manner widely accepted in Australia by a significant number of respected medical practitioners as competent professional practice in the circumstances at the time.[13]

However, depending on the jurisdiction, a court may override peer professional opinion if it determines that the opinion is ‘unreasonable’ or ‘irrational’.[14]

LESSONS FROM THE CORONIAL FINDINGS

Although the coroners in both Halwala and Aston did not explicitly refer to specific communication practices as ‘unreasonable’,[15] in both cases they recommended that the most efficient method of communication available should be utilised. It seems likely that in most cases this would be phone or email.

When choosing a method of communication for sending patient test results, a doctor might still be able to point to a current ‘practice’ to justify the use of a particular method, but as the recent coronial decisions discussed above indicate, doctors choosing fax or ordinary mail may leave themselves open to a court finding that the use of these methods is ‘unreasonable’, thus falling below the standard of care.

LOOKING FORWARD

A finding that a particular method of communication is unreasonable will likely be determined by reference to the practice in place at the time. However, this will continue to evolve, particularly as the shift is made towards digital health records.

We note that the impact of My Health Record and other available technology to share patient information in real time has yet to become apparent. My Health Record allows medical practitioners to access results anytime, anywhere and aims to improve patient care. It is yet to be seen whether the participation rate in such a system will be significant enough to result in a widespread change for practitioners. However, the introduction of such technology and its availability and speed, along with a broader shift in many professions going ‘paperless,’ will change expectations around what is considered reasonable practice in communicating patient information and will surely impact on the relevant standard of care.

Further, as more practitioners adopt such practices, it will naturally become harder for doctors to rely on peer professional opinion when using the older methods of communication, as they would not be able to establish that a significant number of respected medical practitioners consider such usage to be competent professional practice.

Ultimately, the duty is not that a particular method of communication should be used, but that patient results should be conveyed in a timely manner and for now, at least, the relevant standard is more likely to depend on the particular circumstances rather than a ‘one size fits all’ prescriptive approach. Medical practitioners will need to consider the significance of the information being communicated and the potential risks or outcomes of that information not being received or being delayed, and then select the most efficient method of communication in light of these factors.

As the cases of Halwala and Aston highlight, a failure to effectively convey significant patient information can have catastrophic outcomes for patients and their families. Doctors who fail to heed the coroners’ recommendations, and do not embrace modern ways of communicating in their daily practice, are increasingly likely to face negligence claims.

Gabrielle Feery and Amy Johnstone are Associates in the medical negligence department at Maurice Blackburn Lawyers (Vic office). PHONE (03) 9605 2820 EMAIL gfeery@mauriceblackburn.com.au; ajohnstone@mauriceblackburn.com.au.


[1] Positron Emission Tomography (PET) report of Mr Mettaloka Halwala dated 11 November 2015.

[2] Coroner Rosemary Carlin, Findings with Inquest into the death of Mettaloka Malinda Halwala (10 May 2018) Coroners Court of Victoria, [113], <http://www.coronerscourt.vic.gov.au> .

[3] Ibid, [123].

[4] Ibid, [122].

[5] Ibid, [102].

[6] Similar issues were raised regarding the use of fax to communicate patient information in the inquest into the death of George Darcy Key in 2014, which considered the faxing of a CTG trace to an obstetrician. SA Deputy State Coroner Sheppard recommended that consideration be given to improving the way CTG recordings were transmitted to obstetricians.

[7] Deputy State Coroner Anthony Schapel, Finding of Inquest into the death of Marjorie Irene Aston (17 July 2015) Coroners Court of South Australia, <http://www.courts.sa.gov.au/CoronersFindings> .

[8] Ibid, [3.9].

[9] Ibid, [3.9].

[10] Ibid, [8.3(4)].

[11] Wrongs Act 1958 (Vic), s58. See provisions regarding standard of care in other states: Civil Liability Act 2002 (NSW), ss5O-5P; Civil Liability Act 2002 (WA), ss5PA-5PB; Civil Liability Act 1936 (SA), ss40-41; Civil Liability Act 2002 (Tas), s22; Civil Liability Act 2003 (Qld), ss20, 22.

[12] Wrongs Act 1958 (Vic), s59; Civil Liability Act 2002 (NSW), s5O; Civil Liability Act 2002 (WA), s5PB; Civil Liability Act 1936 (SA), s41; Civil Liability Act 2002 (Tas), s22; Civil Liability Act 2003 (Qld), s22.

[13] The NSW decision of Dobler v Halvorson [2007] NSWCA 335 confirmed that such provisions do not modify the standard of care. Rather they operate as a defence, with the onus on the defendant to establish that they acted in accordance with peer professional opinion. This approach has since been confirmed in Victoria in the decision of Brakoulias v Karunaharan (Ruling) [2012] VSC 272.

[14] Wrongs Act 1985 (Vic), s59(5); Civil Liability Act 2002 (NSW), s5O(2); Civil Liability Act 2002 (WA), s5PB(4); Civil Liability Act 1936 (SA), s41(2); Civil Liability Act 2002 (Tas), s22(2); Civil Liability Act 2003 (Qld), s22(2).

[15] We note that such a finding would not necessarily come within the scope of their role as per s67 of Coroners Act 2008 (Vic), and s25(3) of Coroners Act 2003 (SA).


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