West Australian Medical Negligence Law Blog : West Australian Medical Negligence Lawyer & Attorney : Julian Johnson Law Firm : Medical Malpractice, Cerebral Palsy Litigation

 I have recently had a couple of cases raising this issue, which arises from time to time, of when does a settlement actual become final + binding (so neither party can withdraw).  I will cover the issues in 2 separate blog posts.

The first case involved a relatively modest settlement of a plastic surgery related case, arising from botched breast reduction surgery.  My client agreed to a relatively modest settlement offer made by the surgeon's insurer, only to then have misgivings when the settlement documents were provided to her to sign (about 10 days later).  In my view the settlement was close to the amount she would be likely to be paid if her claim proceeded to trial and for this reason I had recommended it.

The client advised me she literally could not bring herself to sign the paperwork to give effect to the settlement, because she felt the doctor was getting away with it + had not been made properly accountable for what he had done.  

Unfortunately this is a common and recently, ever more frequent conclusion by clients, when their claim primarily involves compensation for non-financial loss: pain, suffering and disfigurement, loss of enjoyment etc.  The modesty of our court's awards of compensation and the loss of the first $18,000.00 of compensation for such part of the claim, due to the Civil Liability Act, now frequently leaving clients unhappy and feeling poorly heard and their suffering under valued.  In my view, there is nothing unreasonable with these sentiments. The Civil Liability Act deductible, in particular, is grossly unfair, mean spirited and utterly unjustifiable.

As I advised her, in my view, though there is no absolute certainty, in hers, like most cases, a binding settlement was reached at the time oral agreement to settle the claim occurred + is not delayed or conditional upon signature to the settlement documents.  As such, she could not back out of the settlement: though if she tried, it may be the insurer would permit this + her claim could proceed.

The issue is one of intention: Is there intent that the agreement will be binding or does it need the documentation as well?  In cases in which the documentation is pro forma + contains nothing unexpected, generally the answer I think is 'yes' immediately.  There is nothing unique about medical claims.  The same applies in other types of personal injury cases (though exceptions apply in relation to claims subject to the court's approval: Workers Compensation redemptions + claims for children or other persons under a disability + quite often in commercial cases, there will be important detail in the written contract to be negotiated, so no final settlement will arise before such document's terms are agreed and signed).  It is an application of the principles discussed in Masters v Cameron (1954) 91 CLR 253.

As I advised my client, even if there is uncertainty, from a practical perspective, if she wished to seek to withdraw from the settlement, it was unlikely I would be able to continue to represent her.  This is because, if the surgeon's insurer sought to rely on the settlement in answer to the claim, I would be a likely witness in relation to such settlement and so could not continue to act for her.

Lesson to learn: make sure you have made up your mind before instructing your lawyer to accept an offer (or to put an offer that may be accepted + so lead to a binding settlement agreement)

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After what I have felt has been a slow start to year, in terms of important medical negligence case law, 2 important decisions in 2 days...

On Monday, as reported, the NSW Supreme Court delivered the long awaited (it seems 15 months from trial to decision) decision in Waller v James, the equally unfortunate, as it transpires, case spin-off from Harriton v Stephens, the wrongful life case in which the High Court held no damages could be recovered by the child who would not have been born (because his parents would have terminated the pregnancy), had there not been negligent in the antenatal advice. In Waller, Justice Hislop dismissed the allegations of negligence against IVF doctor Dr James. He made a number of important findings relevant to the assessment of damages in such cases, on topics which have to this point been undecided. I will post a more detailed summary of this case shortly. It will be interesting to see whether the case is appealed. The stakes seem high enough to make this likely.

Then today, the High Court delivered a unanimous decision in the appeal in Wallace v Kam, the NSW case I have written about previously, concerning an action for failure to warn of significant risks of complication. Once again, I will write a summary of such case, when the reasons of the Court are published. In the meantime, by the Court's published case summary, their decision hinged on their conclusion that:

"Mr Wallace was not to be compensated for the occurrence of physical injury, the risk of which he was willing to accept."

Of course the converse argument, not accepted by the Court, was that Mr Wallace suffered a serious complication from an operation he would not have agreed to undergo, had Dr Kam properly warned him of the risks of it. It will be interesting to see how the Court reached its conclusion. 

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Interestingly, I have, in the last 6 to 12 months noted a drop in the number of medical negligence and other personal injury claims proceeding to trial (it has to be said with some personal frustration/disappointment).

Traditionally my advice to clients has been that, if they obtain a supportive expert opinion critical of the care in issue, the chances are somewhere between 5 and 10% their medical negligence case may need to proceed to trial. On the assumption that about 50 cases the firm handles proceed to pre-trial conference per year, traditionally a couple of cases would not be resolved and proceed to trial each year.

My anecdotal impression seemed supported by the recent decision by the Supreme Court to encourage plaintiffs in complex medical or other personal injury claims to consider initiating proceedings in such court. Whilst such Court has had jurisdiction to handle such matters, until this point, they have tended to remit any cases brought, to the District Court (apart from asbestos related cases).

I note Bill Madden’s recent post confirming that this trend is not isolated to Western Australia and in fact across Australia. The present best figures Bill cites suggest “only” 3% of medical claims brought in Australia proceed to trial.

When regard is had to those cases in which plaintiffs are poorly advised and do not have any credible prospect of their claim succeeding, those involving incredible complexity of medical issue and/or fundamental issues as to primary fact, these figures should be very encouraging to potential plaintiffs. Provided there claim is appropriately investigated and handled, the prospects of a trial being required to resolve such a claim, as these figures show, is very small indeed.

The further observation that can be made is that with so few cases proceeding to trial, traditional criteria for selection of Judges may need to be rethought. If, in the vast majority of cases, the judge’s role is in effect to facilitate a process leading to a negotiated settlement, different skills may be required than the traditional trial role. This observation has already been very apparent in relation to the contemporary role for Registrars in the court. Whilst 20 years ago this primarily involved dealing with contentious interlocutory disputes, their role (and consequent key areas for expertise and training) is today primarily in facilitating discussion between the parties through pre-trial conference and mediation processes

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 I read with interest + sadness, the recent decision by Williams DCJ in Lane v Northern NSW Local Health District [2013] NSWDC 12.

The case concerned allegations by 2 daughters of mis-management of their elderly mother, at 2 NSW hospitals.  Tellingly, their father did not support their allegations and gave evidence expressing gratitude for the hospital care provided, in the period prior to his wife's death.

As Williams DCJ elegantly (and compassionately) put it at the beginning of his reasons, if ever there was a case that should not have reached a courtroom this was it.  The sections quoted from the evidence given by the husband of the deceased, during cross-examination by his daughters (the plaintiffs), are painful to read and it can only be imagined what it must have been like to have been present in court listening to such evidence.

A recurrent issue: what can be done in such cases, when family are irretrievably convinced that a wrong has occurred, short of ventilating such process in the courts?  Should there not be an ADR alternative, short of committing a Judge to 10 hearing days + formulating of a 363 paragraph set of reasons (which, which respect, Williams DCJ did generously, without complaint and with compassion).

I suspect, though they would never have agreed to it, the daughters may have been more satisfied with the outcome of such process, than the trial (and Williams DCJ's conclusions; including relating to their psychiatric health and its causes)  they were no doubt so determined to pursue.

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As has been widely reported we recently acted on behalf of the family of Julienne McKay-Hall the woman who tragically died following weight loss surgery. As reported, the Coroner’s findings are a scathing condemnation of both the relevant surgeon Dr Ahmad’s care and that of nursing staff at St John of God Hospital in Murdoch. A copy of the coroner’s findings can be provided, if you contact us (see email details elsewhere on the site).

An interesting legal issue which arises from the decision is the question of a medical practitioner’s obligation to advise prospective patients of limitations imposed upon their practice and particularly, restrictions in terms of the locations at which they are accredited to operate and any limits on the types of procedures they may perform.

My view has always been that a medical practitioner’s obligation to advise their patient of all information likely to be significant to them in determining whether or not to undergo treatment, most particularly surgical treatment, includes an obligation to inform the patient of any imposed limits on their capacity to practice medicine and in relation to their range of services. Rightly or wrongly, if the issue is information likely to be considered significant by the prospective patient, as it is, it is a subjective test. The test is not what the patient should consider significant in deciding on treatment choices.

I have no doubt that the overwhelming majority of patients would say that the fact their proposed surgeon is not permitted to perform particular surgery or has been suspended from practice at a particular hospital, because of complication rates etc, would be very significant indeed to them in deciding whether to proceed with treatment at such surgeon’s hand. Similarly, and this is a repeating issue in the cosmetic surgery area, the fact a surgeon’s formal training may have been in Ear Nose + Throat surgery rather than plastic surgery, would I am convinced, be likely to be significant to a patient contemplating cosmetic breast surgery.. I use this example, not as an extreme example of unsuitability: there are several well-known examples of ENT trained surgeons working in cosmetic breast surgery, in Perth.

I suspect, though I would be pleased to be wrong, that this disclosure obligation is not something commonly met. It would be interesting to know the regulator’s views on this topic and any advice provided to practitioners subject to limits upon their practice as to such disclosure obligations.

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Just a quick note to confirm that my firm, Julian Johnson Lawyers, has a sparkling new website..  If you haven't seen it, check it out @ www.jjlaw.com.au.

Feel free to provide any [constructive] comments/feedback! 

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 Happy new year to all!

As can be gathered, my resolution about more regular blog posts, has already gone by the by..

Anyhow, while recharging over the Christmas break, I came across the following article which interested me and takes the often held comparison between health care and the aviation industry, a step further...

Who would have thought the key to better health care was more cheesecake and less individual brilliance on the part of health professionals!

The article got me thinking and if looked at from a systems perspective, almost every case we handle can be seen as a systems design failure, rather than an issue of individual culpability/shortcomings.  

I imagine that for health professionals, looking at claims from this perspective takes out most of the personal attack/criticism and may therefore allow more constructive dialogue about seeking to pinpoint causes and most importantly, avoiding error/claim repetition.

More cheesecake I say!

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 On 14 December 2012 the Court of Appeal upheld an appeal in the claim brought by Tahlia Burns against King Edward Memorial Hospital (formally the Minister for Health), alleging negligent obstetric care at the time of her birth in April 2004.

Tahlia's claim had previously been dismissed by the District Court as being out of time (being commenced more than 6 years after her birth) + crucially, because she was born before changes to the time limit for claims law (the Limitation Act 2005 ("LA 2005")), not a claim in which any extension of time could be allowed.

The Court of Appeal overturned this decision concluding that although born before such change in the Law, nonetheless, she could rely upon the changes it made, permitting extensions of time for claims. This was based on the Court of Appeal's interpretation of section 7 of the LA 2005, which they confirmed specifically gave the power for such extensions of time, even in birth cases for children born before such Act came into force (so retrospectively).

Interestingly, one member of the Court, Justice Pullin went further and appears to have supported the power to extend time in cases in which the 6 year limitation period that applied in cases against public hospitals before the LA 2005, had already expired at the time the LA 2005 came into force (November 2005). In other words, claims which the public hospitals (and their insurers) would have assumed to be forever lost + out of time. As I have commented previously, for many years it had been recognised that this 6 year time limit for childrens' claims relating to birth injury could be very unfair indeed.

It will be interesting to see whether Justice Pullin's 'invitation' is accepted and any older obstetric claims (pre Nov 99 birth dates) are now sought to be brought with a request for an extension of time.

it is important to appreciate that birth injury cases are a special category of cases + this power to seek an extension does not retrospectively apply to other cases (medical or otherwise).

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 Thanks to my friend + colleague Bill Madden for his interesting report on the most recent report as to incidence of medical negligence litigation in Australia - see here for his report.

As this shows, the number of claims is relatively stable and very modest indeed. As no doubt Bill would agree, this report tells only part of the story. The incidence of claims being lodged for compensation is from all previous studies only a tiny fraction of the number of actual serious adverse events in Australia's health care - the number of patients who could, if they wished and felt able to do so, pursue claims.

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