Today’s correspondent asks:

Does doing overtime and double shifts etc expose the healthcare professional to no support from their employer and/or professional indemnity protections when errors are made, especially medication errors or critical procedures gone wrong? Does having a vehicle accident due to fatigue or lack of concentration after a long shift potentially affect insurance or TAC coverage?

I am an ED nurse and working extra hours is very common, whether that be staying back longer or even doing double shifts (07:00-15:30, plus 15:30-22:30). Sometimes nurses will work 07:00-15:30, then return for the nightshift at 21:00-07:30.    Doctors often work long hours also and may work well onto the night before returning the next day.

Are we jeopardising public indemnity insurance coverage with these work practices?

There are in fact lots of different issues here; and I’ll respond to them as I see them.

Professional indemnity insurance (PII)

PII is there to ensure that a person who is injured due to a health practitioner’s negligence is compensated.  It therefore applies when a practitioner has made an error.  If a doctor, nurse or paramedic is overtired and makes a mistake the insurer cannot avoid liability as that is the very liability the insurer promises to cover.  

There is another point here.  If the practitioner is an employee, then it is the employer who is at least allowing, if not asking, the practitioner to work those hours.  The employer will be vicariously liable for the negligence of an employee but will also be liable for its own negligence in not having systems in place to ensure that reasonable care is delivered to patients, eg by not having overtired practitioners in the ward.  If it fails in its duty to its patients, then it will be liable and again it’s insurer will necessarily meet that liability. 

Where a person is not an employee, eg a doctor with an honorary appointment, then one would need to read the terms of any PII policy but it is extremely unlikely that any insurer could avoid liability in the circumstances described.  For more detail of what is covered and what is not see for example https://www.aondirect.com.au/sme-talk/risk-insurance/comprehensive-guide-to-professional-indemnity, in particular ‘What does Professional Indemnity Insurance cover?’ and ‘What doesn’t Professional Indemnity Insurance cover?’

TAC (Transport Accident Commission)

Reference to TAC tells me that this question comes from Victoria.  The TAC covers the motor accident insurance scheme in that state.   All states have compulsory motor vehicle personal injury insurance, and the schemes provide benefits for all people injured in motor vehicle accidents including the driver at fault.  Again, they are intended to ensure that people are compensated to the insurer cannot avoid liability because the insured was negligent, that is the very liability it is there to cover. 

The Transport Accident Act 1986 (Vic) s 109 says that the owner of a registered vehicle must pay the transport accident charge (in effect, a premium).  In return the TAC is to ‘indemnify’ ‘the owner or driver of a registered motor vehicle in respect of any liability in respect of an injury or death of a person caused by or arising out of the use of the motor vehicle in Victoria or in another State or in a Territory’ (s 94). To indemnify means that the TAC must wear all the liability – the driver is not liable to pay anything, it is all managed by the TAC (see s 94(10)).  The fact that the driver is driving home after a double shift and has a collision won’t affect the indemnity provided by the TAC.

Subject to some exceptions (s 39), the driver at fault is entitled to compensation (s 35). One of the exceptions is where the driver ‘is convicted of an offence under section 318(1) or 319(1) of the Crimes Act 1958 …’. Those offences are culpable driving causing death (s 318(1)) or causing death by driving ‘at a speed or in a manner that is dangerous to the public’ (s 319(1)).   A person who attempts to drive knowing that they are overtired may well be guilty of one of those offences – driving tired is driving in a manner dangerous –  if they crash and as a result someone dies.  In that sense the overtired nurse, doctor or paramedic may lose the benefit of compensation under the TAC scheme but that does not mean that they are not indemnified against any claim by the other people killed or injured in the accident.

The Act does allow for an action for damages alleging negligence that may see higher damages paid than under the TAC scheme (s 93).  If the tired driver of the vehicle is injured and wants to claim that another driver was at fault, their decision to drive whilst tired may amount to contributory negligence and could reduce any damages that they could claim.

In short being tired may see a person lose their entitlement to benefits under the TAC scheme, but it does not mean that they are not indemnified against claims by any person who they kill or injure.

Property insurance

As for insurance against property damage ie the insured’s car or someone else’s, you would need to read the terms of any relevant insurance policy to see what it says.    Taking as an example the product disclosure statement issued by the RACV for their ‘Complete Care Motor Insurance’ policy says that a driver is not covered if ‘you or the driver of your vehicle …  were engaged in a wilful or reckless act while driving the vehicle’.  Whether driving after a double shift amounts to a ‘wilful or reckless’ act would depend really on how tired the driver felt when they got behind the wheel.  It might be if they were falling asleep at work and someone senior said ‘don’t drive home, there’s a room there, go in and have some sleep’ and the person refused that offer.

Criminal law

As noted, driving when you know you are too tired to drive may amount to a criminal offence – see the discussion in the post SA Ambulance officer ‘not guilty’ after fatal ambulance roll-over (December 5, 2020)).  

Professional responsibility

A registered health professional would have to consider their professional responsibilities when considering whether to work a double shift balancing the health care needs of the patients against their own, honest assessment of whether they are fit to continue working.  Just as any practitioner must consider whether they are fit for duty or whether they are affected by illness or the side effects of medication so too it is incumbent on a practitioner to consider whether they are too tired to safely perform their duties. 

This blog is a general discussion of legal principles only.  It is not legal advice. Do not rely on the information here to make decisions regarding your legal position or to make decisions that affect your legal rights or responsibilities. For advice on your particular circumstances always consult an admitted legal practitioner in your state or territory.