To complete the journey, can confirm that the special leave argument on this case, mentioned in earlier posts, was dismissed by the High Court on 16 August 2013. The court did not required counsel for the respondent to make oral submissions... Clearly they believe the Court of Appeal got it right..
In Varipatis v. Almario  NSWCA 76, the New South Wales Court of Appeal reversed the trial judge’s finding in favor of an obese patient alleging negligence on the part of his general practitioner in failing to refer him for weight loss surgery.
The trial decision, which on any assessment was generous to the plaintiff Mr. Almario, had generated media attention and concern that it in effect required such a referral in any case in which an obese patient with a co-morbidity [in this case diabetes] presented to a general practitioner. Furthermore, that in some way the general practitioner’s obligations went beyond firm counselling the patient as to the need for weight loss and health risks if this did not eventuate.
The case must be treated with caution in relation to contemporary medical practice, given the time of the relevant GP care in issue. On appeal it was significant that the link between obesity and liver disease was not well understood until 2002, which followed the relevant care [and is indicative of the time this case took to proceed].
No doubt the trial judge had considerable sympathy with Mr. Almario’s situation. At the time of trial he suffered from advanced liver cancer with no likelihood of long term survival.
The case on its facts presents a good reminder of the difficult evidentiary path patients [and so plaintiffs] may face in establishing their case and the obstacle the burden of proof creates. On reading the decision I was reminded of the analogy given to me by a senior lawyer, years ago, that a complex plaintiff's case is like constructing a multi-storey house of cards, with a doctor or hospital only having to dislodge a single 'card,' or step in the chain for the claim to fail. Further, to dislodge a card, all the hospital or doctor need do is create doubt. They often have no need to prove anything: only to create doubt..
In Almario, amongst other steps (or 'cards') that Mr Almario had to satisfy to prove his case, even if it was accepted that he should have been referred to a bariatric surgeon for consideration of weight loss surgery, were:
- that such surgeon would have recommended surgery for him;
- that Mr Almario would have decided to proceed with such surgery, even if recommended (appreciating it was clear there were risks of complications associated with such surgery, of significance);
- that the surgery would have been successful technically (again, there were well recognised risks this would not occur);
- that even if such surgery was successful, Mr Almario would have achieved persisting weight loss (noting the risk of this, even when all went well, was in some quarters 50%);
- that such weight loss would have avoided Mr Almario developing cancer.
This, it can be gathered, was a formidable task.. If cumulatively considered, it was easy to see why a conclusion would be reached that it was far less than an even chance that Mr Almario would have got to the end (built his complete house of cards).
An intriguing issue is whether such issues should be considered collectively or sequentially: from a plaintiff's perspective, there is a clear significant benefit of the latter (ie if you prove step 1 on a balance of probabilities, you move to stage 2 and consider it), rather than the former. My impression is that the trial judge followed this sequential fact finding process.
The appeal succeeded largely because the Court of Appeal did not accept that the trial judge’s reasoning and generous factual conclusions were justifiable, rather than any issue of legal principle. The Appeal Court were not satisfied, even had a referral for advice by a bariatric surgeon occurred, that Mr. Almario would have proceeded with the surgery and that such surgery would have been successful, such as to avoid the development of his liver condition and subsequent cancer.
Following on from my earlier post, because of the uncertainty that remains as to when a settlement becomes binding, if there is urgency, the uncertainty should be removed by express agreement. This is illustrated by a case resolved a month or so ago for a 59 year-old woman tragically suffering from terminal cancer.
Her claim related to a failure to arrange follow-up on a colonoscopy she had undergone in early 2007. Histopathology from the colonoscopy demonstrated pre-cancerous changes and ought to have prompted follow up and further investigation. By the time of my client's diagnosis with cancer in late 2011, no effective treatment was possibly and she was receiving palliative care.
The case was settled on reasonable terms at a mediation conference in April 2013. The defendant and its insurer deserve considerable credit, given this was arranged on an expedited basis because of our client's precarious health.
Because of my client's ill health I was careful enough to stipulate that the settlement of the claim was to take effect immediately at the mediation and not to be subject to completion of settlement documents etc.
Very tragically, our client died on the Friday following the mediation conference. No opportunity existed for her to sign the relevant settlement documents before her death, though we spoke to her + so she knew the settlement that was achieved.
Fortunately (if there can be any fortune in such situation), given the term of the settlement mentioned above, the relevant compensation payment will still be made and will provide considerable benefit to our client's immediate family.
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)
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.
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
I read with interest + sadness, the recent decision by Williams DCJ in Lane v Northern NSW Local Health District  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.
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.
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!