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Duty of care expanded

Nursing staff have to be aware that a patient's sexual partners must be considered in ongoing treatment.

A recent court decision in NSW highlights that health professionals, including nursing and administrative staff, have a duty of care which can extend beyond their patients and can include people who have not been cared for by the nurse.

While the case is relevant to nurses generally it is relevant to nurse practitioners who order test results, nurses in GP rooms and clinics and those who are responsible for medical administrative staff. The female patient in the case originally attended in 1999 a medical centre where two of the defendant doctors practised. As part of the consultation the patient gave her current address.

Five years later in 2004, the patient returned requesting a test for sexually transmitted infections, including HIV. Arrangements were made for the pathology tests to be carried out by a nurse employed by the practice. She was asked to return to the practice for the results in about a week's time. At no stage was she asked to confirm her current residential address and hence the clinic did not record that she had shifted.

About a month later the pathology lab rang the clinic and told a doctor that the patient's results were equivocal and that retesting needed to be undertaken. That same day the doctor directed the administrative staff to send a recall letter to the patient. The patient attended about four weeks later of her own volition and consulted the next available doctor as her treating doctor was not available. He reviewed the pathology results on the computer and interpreted the test results as negative, with the exception of candida. He did not carry out any further enquiries. The patient left the practice and engaged in unprotected sexual intercourse about one week later with the plaintiff who contracted HIV and subsequently sued the doctors and medical practice.

The following month the treating doctor was advised by staff there had been no response to the patient recall letter. Attempted phone calls to the patient were unsuccessful and as a result a further letter of the same date was sent, again requesting her to attend the practice as soon as possible.

The following day, the staff informed the treating doctor that the patient's telephone number in their records was incorrect. For the next few weeks the treating doctor made various enquiries through a Sexual Health Clinic, ultimately resulting in contacting the patient's father. The patient attended the practice and was told of the need for re-testing for HIV. The HIV test was subsequently confirmed to be positive.

One of the issues for the court to determine was whether a duty of care extended to an indeterminate number of people with whom the patient may have been in contact. In considering this, the judge highlighted that the medical practice (as a corporate identity) was in the business of providing healthcare and knew of the harm that would result to others if there was a failure to promptly notify a patient of a serious medical condition, that it had assumed responsibility for keeping accurate and current patient records and that the harm to the plaintiff would have been averted had the administrative staff complied with its own documented procedures for maintaining accurate patient computer records, including updating and modifying existing records.

The damage suffered by the plaintiff in contracting HIV exemplifies the importance of maintaining accurate medical records, including being current and up to date for the well-being of patients as well as the health of the general public.

Medical, nursing and administrative staff who fail to comply with procedures relating to the maintenance of accurate medical records may be found to have breached their duty of care not only towards a patient but also to a member of the community that has been adversely affected.

This duty of care extends to members of the community, as a failure to maintain accurate medical records of a patient can have life-altering implications to a third party, as tragically experienced by the plaintiff in this case. It would be prudent for doctors, nurses and medical practice managers to review existing policies and procedures relating to the collection and maintenance of records, and consider whether they are adequate. Importantly these must not only exist but also be implemented and monitored.

From a risk management perspective, it is clear from this case the importance of maintaining correct and current patient information.

Some practical tips from this case include keeping patient information current by confirming contact details at each consultation and not relying on patients to volunteer this information, ensuring there is an effective system in place for recalling patients, including promptly following-up unanswered recall letters and keeping accurate notes when entering test results in a patient's medical records - this is important in group practices where a patient may not be seen by the same doctor or nurse at each consultation.

Scott Trueman is a lecturer in the school of nursing, midwifery and nutrition at James Cook University.

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