Doctors' working hours: can the medical profession afford to let the courts decide what is reasonable?

Antony Nocera and Diana Strange Khursandi

Fatigue is no defence for negligence by a doctor in an action by a patient

MJA 1998; 168: 616-618
For editorial comment, see Holmes
See also Olson & Ambrogetti
 

Fatigue caused by long working hours can impair doctors' judgement and competence, and may result in harm to both patients and doctors. Preventable errors resulting from fatigue may lead to patient mishap, which may in turn lead to litigation. The impact of litigation upon individual doctors is enormously stressful. Fatigue is no defence for negligence by a doctor in an action by a patient.1,2 The courts, both in Australia and overseas, have already expressed concern about the role of fatigue as a contributing factor in medical mishap. A nationwide policy on doctors' hours must be preferred to the current practice, where legal judgments impose recommendations on an individual basis after mishaps. Out-of-court settlements may be economically expedient for insurers, but not necessarily to the advantage of either doctors or their patients.   Fatigue results in bad medicine Arduous duty schedules for doctors have traditionally been viewed as part of the rites of passage into the medical profession. Doctors work long hours, sometimes extending into meal breaks, rest and leisure time. The effect of lost sleep (sleep debt) accumulates over time and does not dissipate.3 The cognitive psychomotor impairment after 17 hours of sustained wakefulness is equivalent to that caused by a blood alcohol concentration of 0.05%; after 24 hours of sustained wakefulness it is equivalent to a blood alcohol concentration of 0.1%.4 In the first 4000 reports to the anonymous voluntary register of anaesthetic adverse incidents (Australian Incident Monitoring Study [AIMS]),5 20% of adverse incident reports identified "stress-related" factors (Table 1). Incident reports relating to errors in drug administration or equipment checks were disproportionately associated with reports of fatigue (Table 2).   Medicolegal aspects of fatigue Doctors have an ethical and medicolegal obligation to provide an acceptable standard of medical care. A doctor's professional obligations are not abrogated by hospital directives or policy. Tired doctors may make errors, fail to spend adequate time with patients, fail to communicate effectively with patients and fail to complete appropriate case notes.6 Psychological mismanagement of patients can generate complaints and litigation even when the medical management has been exemplary.7 The impact upon a doctor's professional and private life of receiving a complaint must not be underestimated. The enormity of an error, whether fatigue-related or not, can lead to the doctor committing suicide.8-11 Hospital management has a duty of care in preventing fatigue-related incidents, and a vicarious liability for actions by employees. The hospital also has a legal obligation to provide a safe working environment for its staff. Work-related travel accidents, or events such as needlestick injuries, could result in significant liability issues for hospital management if they occur after excessive periods of duty. The following cases illustrate aspects in the division of responsibility between doctor and hospital management in litigation involving fatigue.   Case 1: Brotherson v Royal Perth Hospital (Australia)12 Robert Brotherson was a 12-year-old boy who underwent open heart surgery in 1978 for congenital heart disease. His postoperative course was complicated by hepatic dysfunction and renal failure requiring peritoneal dialysis. While on dialysis, he developed glucose intolerance which was treated with an insulin infusion. Eight days after his initial surgery, Robert's condition improved, and dialysis was ceased at about 0600. During the medical hand-over between 1800 and 1900 that evening, a consultant decision was made to reduce the frequency of blood sugar monitoring. The decision was based on blood sugar levels (13.1 mmol/L at midnight and 9.05 mmol/L at 0700), and the desire to give Robert an opportunity to sleep. A further blood sugar level of 4.2 mmol/L had been measured at 1612, but not recorded in the notes until the following day. As a result of this omission, the significance of the downward trend in blood sugar level may not have been fully appreciated. At 0550 the following morning Robert had a hypoglycaemic fit resulting in permanent brain damage. In 1995, when Robert was 29 years old, the District Court of Western Australia awarded damages of $2.75 million against Royal Perth Hospital. After a trial which lasted four weeks, Judge French observed that it was difficult to avoid the conclusion that the long shifts the staff worked, with an overwhelming workload, had contributed to their oversight.   Case 2: The Libby Zion case (USA)13 Libby Zion was an 18-year-old woman who died in a New York hospital in March 1984. In January 1984, Ms Zion had begun psychiatric treatment for stress, and was taking phenelzine up to the day before her admission. She was admitted by an emergency department junior resident with a tentative diagnosis of "viral syndrome with hysterical symptoms". At the time of her admission at 0200, both the emergency department resident and the medical intern had been on duty for 18 hours. At 0330 Ms Zion received pethidine 25 mg intramuscularly for agitation and shivering. Between 0400 and 0430 she became increasingly agitated, confused and began thrashing around in bed. The medical intern, attending another patient, was twice notified about the patient. He first gave a telephone order for physical restraint, then another for haloperidol 1 mg intramuscularly. At 0630 Ms Zion was found to have an axillary temperature of 42¡C, for which the intern ordered cold compresses and a cooling blanket. Shortly afterwards she had a respiratory arrest and could not be resuscitated. The postmortem findings were bilateral bronchopneumonia with presumptive evidence of cocaine use. Her father, an attorney and a writer for the New York Times, claimed that his daughter had received inadequate care from overworked and undersupervised medical staff. He successfully lobbied for a grand jury investigation into his daughter's death. The grand jury returned no criminal indictments against the hospital or its physicians, but found much at fault with resident training and staffing. As a result of these findings, New York State implemented legislation which limits a doctor's shift in emergency services to a maximum of 12 consecutive hours.   Case 3: Johnstone v Bloomsbury Health Authority (UK)14 An obstetric senior house officer was employed in 1988 by University College Hospital in London to work a basic 40-hour week with an additional 48 hours per week "on-call" (working overtime while residing in the hospital). He was subsequently required to work 32 hours over one weekend, with only 30 minutes' sleep. On another weekend he worked for 49 continuous hours, taking over 60 calls, and was able to sleep for only seven hours. In 1989, Dr Johnstone took the Bloomsbury Health Authority to court, successfully arguing that he had sustained personal injury as a result of his work schedule. In upholding the damages awarded, the court of appeal found that the health authority could not lawfully require the doctor to work so much overtime in a manner which constituted a threat to his health. In this case, the court rejected the argument that "if you cannot stand the heat in the kitchen, you should get out, or not go in". It noted that it was "a matter of grave public concern that junior doctors should be required to work such long hours without proper rest that not only their own health may be put at risk but that of their patients as well".   Case 4: Wilsher v Essex Health Authority (UK)15 Martin Wilsher was born in December 1978, nearly three months premature. At birth he was described as a "very floppy blue baby". He was initially intubated, but was able to be extubated after eight minutes and was admitted to the Special Care Baby Unit on supplemental oxygen via a face mask. In the Special Care Baby Unit, a junior resident doctor mistakenly inserted a catheter into an umbilical vein for arterial blood gas sampling. The error was subsequently missed by both a senior registrar and a consultant radiologist. The resident and registrar involved were either working continuously or had been "on call" (working overtime) every second night and weekend. When the catheter was changed by the senior registrar after 24 hours, it was again placed into an umbilical vein instead of the artery. Due to being supersaturated with oxygen for approximately 32 hours, the baby developed retrolental fibroplasia, resulting in near-total blindness. The court of appeal dismissed an application by the health authority contesting the damages awarded in the subsequent action by the child's parents. The judge concluded that "a health authority which so conducts its hospital that it fails to provide doctors of sufficient skill and experience to give the treatment offered at the hospital may be directly liable in negligence to the patient... I can see no reason why, in principle, the health authority should not be so liable if its organisation is at fault".   Looking forward While the effect of fatigue on performance is being increasingly recognised, traditional attitudes to working hours have become inappropriate, especially in the current climate of growing complexity of medical practice and increasing patient expectations. Other bodies, such as the airline industry, have already recognised the importance of regulating working hours and rest periods to minimise fatigue. At present, none of the Australian specialty colleges has recommendations on duty hours, despite the adverse effect fatigue could have on training. Based on overseas experiences, the introduction of duty time limits in Australia would require an upward revision of the current estimates for future medical workforce requirements. In the Netherlands, the introduction of duty time limits for doctors in training increased medical employment, while in the United Kingdom it has resulted in the creation of over 1000 new consultant positions.16 The Wilsher v Essex Health Authority judgment centred on the issue of inadequate supervision of junior doctors. The health authority was found to be at fault because its organisation failed to provide appropriate care. This principle of hospital management liability due to organisational failure is even more applicable to an incident occurring due to doctors being required to work excessive hours, thus exposing patients to the potential risk of injury.2 Hospital indemnity insurers would have grounds to introduce penalty premiums if a hospital "organisational failure" resulted in an increased risk of litigation due to either fatigued medical staff or undersupervised junior doctors. The medical profession must take the initiative and accept the responsibility for continued investigation of the impact of fatigue on performance. There is an urgent need for widespread discussion involving government, the health authorities, the AMA and the specialty colleges so that strategies may be developed to minimise the potential for fatigue-related incidents. Setting duty time limits (together with mandatory rest periods, and rostering that minimises fatigue) will represent a practical and timely investment in patient care, sensible risk management for hospitals, and a safer working environment for doctors. It would give physician and patient safety a clear priority in a climate of increasing financial constraint and conflicting political pressures upon the healthcare system. Unless the medical profession and the health authorities introduce and police "safe working hours", they risk both compromising patient care, and increasing scrutiny by the courts.   References Powers MJ, Harris NH, Lockhart-Mirams A (editors). Medical negligence. 2nd ed. London: Butterworths, 1994. Jones MA. Medical negligence. London: Sweet and Maxwell, 1991. Dement WC. The perils of drowsy driving. N Engl J Med 1997; 337: 783-784. Dawson D, Reid K. Fatigue, alcohol and performance impairment. Nature 1997; 388: 235. Garden AL, Currie M, Gander PH. Sleep loss, performance and the conduct of anaesthesia. Aust Anaesthesia 1996; 43-51. McCall TB. The impact of long working hours on resident physicians.N Engl J Med 1988; 318: 775-778. Condon JT. Medical litigation. The aetiological role of psychological and interpersonal factors. Med J Aust 1992; 157: 768-770. Charles SC, Wilbert JR, Kennedy EC. Physicians' self reports of reactions following malpractice litigation. Am J Psychiatry 1984; 141: 563-565. Charles SC, Wilbert JR, Franke KJ. Sued and nonsued physicians' self-reported reactions to malpractice litigation. Am J Psychiatry 1985; 142: 437-440. Birmingham PK, Ward RJ. A high risk suicide group: the anesthesiologist involved in litigation. Am J Psychiatry 1985; 142: 1225-1226. Wenokur B, Campbell L. Malpractice suit emotional trauma. JAMA 1991; 266: 2834. Templeman D. Oversight by tired doctors, not failure to keep up-to-date, caused brain damage. Aust Health Law Bull 1996; 5: 35-36. Asch DA, Parker RM. The Libby Zion case. N Engl J Med 1988; 318: 771-775. Johnstone v Bloomsbury Health Authority [1991] 2 All ER 293. Wilsher v Essex Health Authority [1986] 3 All ER 801. Federal Secretariat. Overview of overseas experience in regulating hours of work of doctors in training. Canberra: Australian Medical Association, 1998. (Received 15 December 1997, accepted 20 April 1998)

Authors' details

PO Box 1105, Caboolture, QLD.
Diana Strange Khursandi, FANZCA, Anaesthetist.

Reprints will not be available from the authors.
Correspondence: Dr Antony Nocera, Careflight, PO Box 159, Westmead, NSW 2145
E-mail: tonynoce@ozemail.com.au