Working as a team - what if the doctor won't respond to a call for assistance?
Key points
Doctors place themselves at medico-legal risk if they fail to respond to a reasonable
request for assistance.
The nurse should pursue all reasonable efforts to convey the patient's need to the
doctor; document the facts; care for the patient to the best of his or her ability and seek
to make alternative arrangements for the patient.
The Project is intended to reduce unnecessary calls to GPs, but its success will depend
on the team developing trust and confidence in the willingness of team members to
respond to legitimate calls for assistance.
The Project provides an opportunity for
teams to discuss these issues in advance of emergency situations, and agree on a
protocol to manage differences.
Presumably, the doctor will have a contractual obligation to the hospital or health service to
respond to a nurse's call for assistance. In addition, if he or she does not respond and as a
consequence the patient is harmed, then he or she may be found to be negligent.
In one case an obstetrician was found to have breached her duty of care to her private patient
by failing to attend when notified of signs of foetal distress by the nurse.45 In another case a
doctor who was called by a nurse in relation to a patient who presented to the emergency
department was found to be negligent for not coming in to see the patient, although it was
accepted in this case that there are circumstances when a doctor need not be called for
example if the patient 'has a small cut which the nurse can perfectly well dress herself'.46
What should a nurse do if the doctor refuses to come in, despite having been requested to do
so? If a nurse believes that the doctor ought come in, and the nurse has explained all the facts,
conveyed his or her observations, and the reasons why he or she believes the doctor should
come in, and the doctor still refuses to do so, then this should be documented carefully in the
notes, including all the information provided by the nurse to the doctor and the advice of the
doctor. The nurse should then proceed to manage the patient to the best of his or her own
abilities and explore other alternatives, such as calling another doctor, transferring the patient to
another facility, contacting a regional health service for assistance or calling '000'.
It is recommended that hospitals/health services and relevant health care professionals agree
and implement protocols to address situations where there is a disagreement about patient
management between clinical staff. Such protocols could include seeking a second opinion or
reporting the disagreement to the Director of Medical Services. They could also consider what
to do in the case of an emergency,
and who to appoint as a team leader. In cases where a
patient requires urgent assistance, a quick dispute resolutions system is essential.
45 Ballard v Cox [2006] NSWSC 252
46 Barnett v Chelsea and Kensington Hospital Management Committee [1968] 1 All ER 1068
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Hospitals and health services also should consider putting into place mechanisms by which
health care professionals are able to report their concerns regarding the professional conduct of
their colleagues, so that issues can be resolved constructively.
Working as a team - who is liable for poor outcomes?
Key points
Both the GP and the nurse will be judged according to the principles of negligence - did
they owe the patient a duty of care; did they provide a reasonable standard of care
including through the GP's decision to delegate responsibility for the care; if not, did
foreseeable harm ensue?
Case study
'A patient presents with a lower limb injury that meets the Ottawa criteria and fits our
guidelines as agreed to by our GPs for an x-ray. The GP is notified of this (in
accordance with the hospital's protocol and in particular to comply with Medicare
requirements). The x-ray shows a small fracture which is stable and in alignment. The
GP sees the x-ray on his computer in rooms or at home. He advises that the nurse can
apply a plaster. In six weeks time when the plaster is removed it is discovered that the
patient has a contracture due to incorrect application of plaster.
Who is responsible or
accountable in this situation?'
The medical practitioner may be in breach of his or her duty of care if it was unreasonable to
delegate the task to the particular nurse (if he or she lacked experience or competence) or if the
plaster or procedure which he or she instructed the nurse to perform was inappropriate
The Medical Practitioners Board of Victoria made a finding of unprofessional conduct against a
medical practitioner who had not supervised treatments administered by a nurse, in particular
for failing to take any or adequate steps to ensure those treatments were appropriate in the
circumstances, to ensure that the treatments were being properly and/or appropriately
administered by the nurse and to monitor the nurse's performance of treatments adequately or
at all.47
In another case in which the Medical Practitioner's Board of Victoria considered whether a
medical practitioner had inappropriately delegated a task to a more junior doctor, the Board
gave consideration to the matters to be taken into account when delegating a task to another.
These included48:
x the task to be delegated;
x the relevant experience of the delegator and the delegate;
47 Medical Practitioners Board of Victoria re Dr Warwick Lorne Greville [2004] MPBV 2
48 Medical Practitioners Board of Victoria re Dr DDD [2002] MPBV 24
27
x the knowledge of the delegator of the delegate's experience and competence and
ability to perform the task;
x the willingness of the delegate to perform the task;
x measures for the delegate to consult with the delegator in relation to any follow-up
procedures or concerns;
x the other options open to the delegator, e.g. whether to perform the function him or
herself or to seek another person to whom to delegate the task; and
x the precise circumstances of each party, e.g. whether one of them was at the end of a
long shift, tired or under pressure.
If the delegation is deemed appropriate, the negligence will be regarded to be that of the nurse
and the hospital or health service will be vicariously liable.
Working as a team - can I 'cover' myself by calling the doctor?
Key points
To date, case law suggests that it is unlikely a nurse will be held negligent if he or she
acts on the advice of a doctor, even if that advice turns out to be negligent.
It is arguable, however, that the scope of the nurse's duty these days is greater than in
traditional roles.
In modern day circumstances, courts may be more reluctant to
consider that a nurse is exonerated merely by calling a doctor.
In addition, professionalism requires that registered nurses assume appropriate
responsibility and accountability for clinical decisions within a reasonable scope of
nursing practice. Appropriate assumption of responsibility goes to the heart of
professionalism. The key to the success of the Project, and to the management of
medico-legal risk, is to ensure that referrals are made when clinically appropriate rather
than simply for medico-legal risk management purposes.
Registered nurses are expected to exercise their own judgment and their conduct is expected
to meet the reasonable standard of a nurse. Registered nurses remain independently
accountable for their actions and decisions.
There is no obligation to call a doctor if, on the facts on the case, it was reasonable to decide
not to.49 If the situation is within the competence of the nurse then it is appropriate that the
nurse assumes responsibility for the decision, which may be made in his or her own
professional judgment, so that it is not always necessary to call a doctor.50
If, however, circumstances are such that a doctor ought to have been called but was not, a
nurse could be found to be liable. For instance in the case of an at-risk labour, a nurse was
49 Alexander v Heise [2001] NSWCA 422
50 Fiek v Nurses Board of Victoria (Occupational and Business Regulation) [2006] VCAT 1968
28
found to be in breach of her duty for not calling the doctor when there were continuing signs of
foetal distress (the hospital was vicariously liable).51
In some circumstances a nurse might be considered to have discharged his or her duty by
calling upon a doctor.52 To date, case law suggests that it is unlikely a nurse will be held
negligent if he or she acts on the advice of a doctor, even if that advice turns out to be
negligent. In an old English case, a nurse called the on-call doctor from the emergency
department, who refused to come in but instead instructed the nurse to advise the patient to
see his own doctor. The patient subsequently died and the doctor was held to be liable, but the
nurse was considered to have discharged her duty calling the doctor.53
It is arguable, however, that the scope of the nurse's duty these days is greater than in
traditional roles. In modern circumstances, courts may be more reluctant to consider that a
nurse is exonerated merely by calling a doctor.
A nurse is expected to exercise his or her own critical thinking and judgment at all times, and a
telephone call to a doctor may not necessarily 'dilute' a nurse's duty. For example, if the
instructions provided by a medical officer are so unreasonable that no reasonable nurse would
have followed them unquestioningly, or if the nurse misconstrued those instructions, then a
nurse would not be protected from liability by simply acting on the advice of a medical officer.
A nurse who contacts a doctor for advice also has a responsibility to assess the clinical
situation competently and advise the doctor accordingly. Failure to undertake a reasonable
assessment and/or to advise the doctor of relevant clinical issues discovered during that
assessment may constitute a breach of the expected standard of care.
Even if a nurse acts on 'doctors orders', he or she has an independent duty of care to the
patient. If registered nurses assume certain responsibilities, they need to ensure that they have
adequate skills and experience.
The Nurses Board of Victoria confirms that nurses are
'expected to function within the limits of their education and competence and to consult or refer
where necessary.'54
The key to the success of the Project, and to the management of medico-legal risk, is to ensure
that referrals are made when they are clinically appropriate rather than simply for medico-legal
risk management purposes. If an activity is beyond the scope of training or competence of a
nurse, he or she is responsible for initiating a consultation with, or referral to, other members of
the team such as a medical officer. If, however, a nurse is confident to undertake activities
which are within his or her approved role and responsibilities, he or she should feel empowered
and supported to do so without unnecessary referrals. The adoption of the team approach in
itself should reduce the risk of adverse events. It is said that '[j]udgements are made in a
51 Ballard v Cox [2006] NSWSC 252
52 Barnett v Chelsea and Kensington Hospital Management Committee [1969] 1 All ER 1068
53 Barnett v Chelsea and Kensington Hospital Management Committee [1969] 1 All ER 1068
54 Guidelines: Scope of Nursing & Midwifery Practice. Nurses Board of Victoria.
29
collaborative way, through consultation and negotiation with other members of the health care
team'.55
Good risk management requires careful documentation of the facts that are conveyed in such
conversations and the advice that is provided.
