West Australian Medical Negligence Law Blog

West Australian Medical Negligence Law Blog

Insights On Medical Negligence Issues From The Perth Area And Throughout Australia

I have been a lawyer for 21 years, during which time I have predominantly represented injured people in pursuing compensation claims. In the last 10 - 15 years, I have focused on medical malpractice / medical negligence law and particularly claims arising from negligent medical care. Read more

Mules v Ferguson: peer defence overturned + patient wins!

Posted in Case Summary, Causation Issues

I read with interest the Queensland Court of Appeal’s recent decision in relation to this matter. The Court of Appeal by a 2:1 majority overturned the trial judge’s earlier rejection of this medical negligence claim.

The case involved allegations of negligence against a general practitioner for failing to refer a patient ultimately found to suffer from cryptococcal meningitis. The patient suffered a catastrophic outcome due to such meningitis, including loss of sight and hearing. Damages were assessed [provisionally] at over $6.7 million by the primary trial judge.

The trial judge concluded that the GP had been negligent in not completing a careful neck examination and inquiry as to the patient’s progress, when she attended repeatedly.

Nonetheless, the trial judge dismissed the patient’s claim on the 2 basis that:

  1. Causation: even had the GP done what she ought and completed a careful neck examination and inquiry as to the patient’s headaches, etc., in the particular circumstances, such further steps would not have raised sufficient concerns to result in the patient being referred for a neurological review/assessment in time to receive treatment avoiding her catastrophic outcome.
  2. Peer Defence: Although he concluded the GP was negligent and should have completed a careful neck examination and further questioned the patient, he considered such GP had made out a defence under theCivil Liability Act on the basis that she had acted in a way, which was widely accepted by peer professional opinion.

The case is interesting in that as far as I know it was the only Australian case in which a trial judge has found that a medical practitioner’s care was negligent, but nonetheless excused it on the basis of such “peer defence.” This struck me at the time as an odd conclusion: in a way, the trial judge accepted the GP should have done something, but because a bunch of colleagues wouldn’t have done it either (and therefore, not surprisingly, thought she had acted reasonably), excused her..  I hate this defence!

Pleasingly for the patient, the Court of Appeal overturned the trial judge’s conclusions on each of these 2 points.

The appeal primarily centered on a careful review/analysis of the evidence as to whether, had the GP completed the examination and further inquiry she ought, this would have triggered an early referral. By a 2:1 majority the members of the Court of Appeal concluded [contrary to the trial judge] that it would.

The trial judge had accepted that if such a referral had occurred, the patient would have acted on it expeditiously and treatment would have taken place which would have avoided the catastrophic injuries she suffered due to her meningitis.

The members of the Court of Appeal also overturned the trial judge’s acceptance of the “peer defence”.

Interestingly, for future reference, the decision makes clear that for such a peer defence to be made out, the medical practitioner’s experts must confirm that the doctor’s conduct on the facts as found, was in accordance with peer professional opinion. It is not sufficient for experts to simply make a broad sweeping conclusion or to do so based on the medical practitioner’s claims as to what the patient told them and what they observed (if such claims are then [as here] not fully accepted).

The case highlights that making out such a peer defence will be quite a difficult and complex evidentiary task for defendants and their advisors. Where there are important primary disputes as to what took place during the relevant consultations, etc., the defence team will need to ensure confirmation of support for a peer defence across the cross section of likely findings open to the judge. Such likely findings may not be something necessarily obvious prior to the commencement of trial.

Predictably perhaps, in my view it is appropriate that this defence is given narrow application, once a trial judge is convinced that care was negligent – the situations in which doctors should be excused for failing to show reasonable care, because of peer practices, should be rare indeed..

delay in cancer diagnosis: consequences unpredictable

Posted in Cancer Cases, Contemporary Medicine, Our Cases

I read with interest recent medical literature, reporting on research at Johns Hopkins, emphasising the role of a 3rd factor in cancer incidence.

Debate has traditionally focussed on the ‘environmental -v- hereditary’ nature of many cancers.  New research, as reported, has confirmed that ‘luck,’ bad or otherwise, appears to be an even more important factor.  Random DNA mutations during cell division have been found to explain 2/3 of cancers in adults.

Such research, emphasises the role of early detection in cancer care, given the unavoidability of luck, one way or another.

Apart from in cancer’s initial occurrence, several recent cases we have/are handling have emphasised the ‘luck’ element, not just in whether cancer arises in the first place, but additionally in its response to treatment and recurrence.

Sadly, at any time we handle 10 or more cases involving inappropriate delay in diagnosis of cancers.  The harm caused by such delay is often the growth and maturation/progression of the ‘missed cancer,’ often most importantly impacting on the statistical probability of such cancer responding to treatment – or recurring.

A couple of cases we have looked at in the last year have emphasised that whilst statistical information, based on staging of cancer at diagnosis, is often the best method for assessing the effect of an inappropriate delay in diagnosis and treatment, it needs to be remembered that individuals may or may not conform to such statistical predictors.

In the first case, given the type of cancer and its very early staging, statistically, our client should have had a very good chance of survival + so the delay of 12 months in diagnosis/treatment should not have caused significant harm.  Sadly, to the contrary, within months of engaging us, our client was found to have extensive metastatic spread and her outlook now is grim.  From a claim’s perspective, our independent oncologist confirmed that knowing what we know about the aggression of the cancer cells in this unfortunate patient, it remains unlikely that the 12 month delay made any difference: even with diagnosis 12 months earlier, it is likely her cancer would/had spread.

In a second case, the exact opposite occurred.  The type and staging of cancer at diagnosis was advanced and likely to be aggressive, with a resulting poor outlook for our client.  In contrast, diagnosis 2+ years earlier, at a significantly less advanced stage on statistical grounds should have resulted in a far better outlook.  On the other hand, our client has [thankfully] already survived 3.5+ years since diagnosis, without evidence of recurrence.  Our independent oncologist considered that in such scenario, again, knowing what we do, it is unlikely the delay in diagnosis has altered the client’s outlook.  Given the type of cancer, 3.5+ years without recurrence, put him in an excellent category + it appeared he is in the small statistical group defying the overall poor outlook from his stage of disease.  Great news for our client (though not for his claim: though I know which he prefers!).

All goes to show that these types of case, which are sadly reasonably common, require considerable work-up, not only to evaluate whether harm has followed any inappropriate (negligently caused) delay in diagnosis/treatment on a ‘population basis’ but also on an ‘individual basis.’

Botox + Dermal Fillers (+ IPL) – they may be more dangerous than you think!

Posted in Cosmetic Surgery (and Other Treatment), Our Cases

We have recently agreed to act on behalf of a client who has suffered significant irreparable facial scarring/disfigurement as a consequence of dermal fillers, she underwent earlier this year @ a slick, web-advertising, brochure wielding, ‘wellness’ clinic in Perth’s metro area (can’t you just picture the ‘world muzac’/running water + Buddha heads!).

We have now handled several such cases, including an even more serious case in which the patient was left with enduring face drop due to nerve damage during injection of filler to her upper lip area.

Despite assurances to the contrary, it seems the operator of the clinic performing the filler injection was not a registered nurse (though she may have been a nurse of some description/form at some earlier time). We are yet to find details of what her ‘medically trained’ qualifications entail….

Further, it appears the dermal filler she injected to our client’s face, which lead to repeated infections/abscesses, may well not have been a recognised, TGA approved product. A suggestion has arisen that instead, the clinic operator was buying filler + botox supplies online from destination unknown (no doubt at ‘competitive rates’).

Interestingly, because the operator was not at the relevant time a registered nurse, I understand it is difficult for AHPRA (the old Nurses Board) to act. Their jurisdiction is broadly limited to nurses.

The case is [yet another] cautionary tale about cosmetic treatment providers. Why this isn’t something governments regulate tightly is unclear. Why someone injecting foreign material into someone’s face – or irradiating their body (in IPL) isn’t seen as something needing close regulation is hard to fathom…

Apart from anything, I have difficulty understanding how the operators of such businesses, in contrast to properly qualified health professionals, can avoid a mandatory requirement of appropriate professional indemnity insurance…..

But perhaps, its just me..

Open Disclosure – demanding expectations, but are they ever met?

Posted in Contemporary Medicine

Courtesy of my colleague (and friend) Bill Madden, I note the NSW Government has issued a Policy Directive in relation to Open Disclosure, a copy of which can be found here.

I note with interest, the “MANDATORY REQUIREMENTS” of such policy:

1. Acknowledgement of a patient safety incident to the patient and/or their support person(s), as soon as possible, generally within 24 hours of the incident. This includes recognising the significance of the incident to the patient.

2. Truthful, clear and timely communication on an ongoing basis as required. 

3. Providing an apology to the patient and/or their support person(s) as early as possible, including the words “I am sorry” or “we are sorry”.

4. Providing care and support to patients and/or their support person(s) which is responsive to their needs and expectations, for as long as is required.

5. Providing support to those providing health care which is responsive to their needs and expectations.

6. An integrated approach to improving patient safety, in which open disclosure is linked with clinical and corporate governance, incident reporting, risk management, complaints management and quality improvement policies and processes. This includes evaluation of the process by patients and their support person(s) and staff, accountability for learning from patient safety incidents and evidence of systems improvement.

Selected emphasis by me of key points which in my experience are not embraced in WA, either public or private sector health care.  Don’t think I have yet had a patient who described the hospital/health provider’s response as set out at paragraph 2 above: more often = “evasive, avoidant, half-hearted and belated….”  I appreciate my experience (and my clients) are probably not a fair representation across the board.

Wouldn’t it be wonderful if this happened though!

 

Compensation for Pain and Suffering in Medical Cases, out of touch…

Posted in damages assessment

As I have observed from time to time, a previously common, now almost universal sentiment of disappointment is expressed by clients when advised as to the likely scale of compensation they would be awarded by the courts for their pain, suffering and loss of enjoyment of life due to negligently caused injury.

I have observed elsewhere the relative lack of growth in the sums awarded for such component to claims, as a consequence of legislative limits or deductibles via our Civil Liability Act (“CLA”) and relatively conservatism by our Court’s in their assessments.

Once again, as I have stated (ranted?) elsewhere, I am still waiting to see any evidence of how such CLA provisions have a corresponding benefit to the wider community, justifying their impact on claimants.

Bracket creep in the CLA deductible now means that claims of blatant, negligently caused harm causing serious enduring suffering face the very real possibility of entitling the victim to no compensation at all, or what they may, with good reason, consider paltry.  For example, a commonly assessed sum for enduring mild to moderate psychiatric suffering experienced by the parents of a baby dying during child-birth, due to negligent obstetric or midwifrey care, has been a figure in the order of $30 – $35,000.00.  With the application of the CLA deductible, this is reduced to $11 – 16,000.00.  Whilst it is critical to appreciate this is compensation for the parents’ suffering and not a value on the lost life, it can be immediately appreciated why so many clients see such an assessment for their loss, as insulting + in no way reparation for their suffering.

I note with interest the practice prevalent in the United Kingdom whereby its Court of Appeal periodically reassesses the amount that will be awarded for  non‑pecuniary loss aspect to claims.  For example I came across in passing, a press release indicating a 10%  increase in the amounts to be awarded for this head of damage with effect in relation to judgments after 1 April 2013.

In my view there is much to commend such a practice to reflect overall changing attitudes and expectations in the community as well as changes in the purchasing power of any given ‘symbolic’ compensation awarded to the claimant.

Paul v Cooke – High Court rejects timing difference as enough to prove causation

Posted in Case Summary, Causation Issues, Failure to Warn

The High Court recently dismissed the special leave application brought in this case by Ms Paul, seeking to overturn the New South Wales Court of Appeal’s decision rejecting her claim.

As may be known, the case concerned a delay in diagnosis of an intracranial aneurysm suffered by Ms Paul. She underwent a head CT Scan in 2003 and Dr Cooke, the radiologist, negligently failed to identify and therefore diagnose the aneurysm.  In 2006, following a further scan, the aneurysm was diagnosed. Sadly during surgery to remove the aneurysm it ruptured causing Ms Paul a stroke and serious injury.

For the purposes of the special leave application it was accepted that the risk of rupture/stroke associated with the operation Ms Paul underwent in 2006 was no different to the risk had she undergone surgery in 2003, as would have occurred had Dr Cooke not negligently failed to diagnose the aneurysm.

The New South Wales Court of Appeal had concluded that Dr Cooke’s negligence was not the cause of Ms Paul’s surgical complication. His negligence changed the timing of surgery but did not alter the risk associated with it. It did not matter that it could be fairly said that had Ms Paul undergone surgery in 2003, it was very unlikely that she would have suffered the rupture and stroke she did in 2006.  Dr Cooke had breached his duty of care, but was not responsible for the stroke.

The High Court rejected the application for permission to appeal from such decision (the special leave application), because its members, in essence, agreed with the Court of Appeal. There was not sufficient doubt to warrant granting permission to appeal.

There is now a clear distinction between diagnosis and treatment cases on one hand and failure to warn cases on the other in this important context.  In the latter, it is well recognised (and recently reaffirmed by the High Court in Wallace v Kam, [2013] HCA, 19) that a patient can succeed in a claim if able to show that had they been properly warned of the risks associated with treatment they would have delayed proceeding, even if ultimately such surgery or treatment was likely to occur and would involve the same risks as eventuated at the time of their operation. More must be shown in diagnosis/treatment cases. A negligently caused delay in surgery carrying the same risk is not sufficient for liability.

Paul v Cooke failed, apart from on general causation principle, by reason of the terms of section 5I of the NSW Civil Liability Act which provides that:

“a person is not liable in negligence for harm suffered by another person as a result of the materialization of an inherent risk.”

The New South Wales Court of Appeal rejected argument on Ms Paul’s behalf that this section was limited to materialisation of a risk associated with treatment provided by the negligent defendant. This section was interpreted as broad enough to exclude liability when the inherent risk that materialised, as occurred in the surgery performed by the team caring for Ms Paul in 2006, well after the negligent failure to diagnose by Dr Cooke.  Interestingly the WA equivalent provision, section 5P is differently worded from the New South Wales legislation and does seem to be limited to inherent risk associated with the defendant’s treatment.

Another Failure to Warn case lost (Odisho v Bonazzi [2014] VSCA 11)

Posted in Case Summary, Causation Issues, Failure to Warn

The Victorian Court of Appeal delivered its decision in relation to the Appeal in this case on 18 February 2014.  The Court of Appeal unanimously agreed to dismiss Ms Odisho’s appeal against the Trial Judge’s dismissal of her claim.

The case concerned an alleged failure to warn Ms Odisho of a very rare risk of thrombo-embolism associated with recommended gynaecological treatment for her heavy menstrual bleeding via tranexamic acid medication.  The Court of Appeal upheld the Trial Judge’s conclusions that in fact Ms Odishi’s thrombo-embolism was not caused by her use of this medication and in any event, although she was not warned of such risk, she had not established that had she been warned, she would have declined such recommended treatment.

The case was interesting to me in the following respects.

  1. The Court of Appeal left open the question of whether they would have overturned the Trial Judge’s conclusions that no duty to warn of the relevant risk arose, had they reached a different conclusion in relation to causation.  It is therefore a good example of the relatively low probability of a risk that may nonetheless be required to be disclosed.  Interestingly the fact that thrombo-embolic event was included as a rare side effect (in less than 1/1000) in MIMS was important in supporting a conclusion that a duty to inform the patient of this risk arose.  MIMS should now be on every Plaintiff lawyer’s desk, for reference in medication cases.
  2. The case is an example of the combined objective, then subjective aspects of enquiry to determine whether a duty to warn arose.  As established, the enquiry is initially whether a reasonable patient would attach significance to the relevant risk.  The disclosure obligation can then be increased if there are particular features of the patient in question, which suggest significance would attach to the relevant risk.  Members of the Court recognised that Ms Odisho was stated to have been anxious and concerned about treatment for her condition, though not that this proved she would have attached significance to the risk in question.
  3. Although already well established, the Court confirmed that whether or not provision of a warning was usual practice was not the issue in deciding whether duty to warn arose (see at [27]).
  4. The case is a good example of the limited utility of a Plaintiff’s bald assertion that if warned they would not have proceeded with given treatment.  As members’ of the Court stated “the exaggerated nature of the Appellant’s answers to the questions put to her on the issue of what she would have done had she received a warning well justified the Trial Judge’s rejection of this evidence.  When one looks at the whole of the evidence, including the evidence of treatment to which the Appellant was prepared to consent, like the Trial Judge, we are unpersuaded that an appropriate warning of the risk of pulmonary emboli would have made any material change to the events that occurred.”

The case is yet another example of the difficulty of proving causation in failure to warn cases where the risk is very small indeed.  Whilst breach of duty may be established, it is another thing to have confidence that a patient will establish causation unless there is good reason to argue that, despite the low probability of such risk, it would have been decisive in altering the patient’s decision to undertake the relevant treatment.

 

Extensions of Time: Court of Appeal find a way to make sense of section 41 Limitation Act (Barr v Farrell)

Posted in Case Summary

On 10 September 2014 the Court of Appeal, by a majority of 2 to 1, upheld appeal against a decision by Judge Bowden in the District Court rejecting the applicant’s request for an extension of time in which to bring claim under Section 41 of the Limitation Act 2005.

As I have commented previously, such section on its face [bizarrely] only permits an extension of claim for a child, outside the six-year time limit now set, if the Court is satisfied that the child’s guardian acted unreasonably in failing to bring claim within this 6 year time period.

In other words, if there is a good reason why claim was not brought earlier, no extension can be given – go figure!

In Barr’s case, the guardian’s failure to bring claim within the 6 years was because their [negligent] solicitor had advised them it was not necessary to do so and there was plenty of time.  They had expert medical evidence that the child’s care had been negligent, but were told there was no need to rush, as there remained plenty of time for the action to be brought.  This was due to a failure to appreciate that since Nov 2005, birth injury cases (even those relating to births prior to such time) had a ‘new’ 6 year time limit, rather than the old period for claim, which had been generally 6 years from when the child reached 18.

Judge Bowden’s decision seemed to follow the terms of such provision, finding that because the guardian had relied upon legal advice, they had not acted unreasonably and so no extension could be granted [they being presumably left to pursue claim against their negligent lawyer for wrongly advising them concerning the timeframe for claim].

Though unquestionably the right end result, the Court of Appeal’s decision required some ‘reasoning gymnastics.’

Justice Pullin concluded that the inquiry as to whether a guardian had acted reasonably or not was an objective question.  He concluded that the legal advice provided by the lawyer was not part of such objective circumstances that needed to be considered.  Rather the objective circumstances were the fact that severe injury had occurred and medical opinion had been obtained suggesting that the obstetric care was negligent and had caused such injury.  In these circumstances, Justice Pullin concluded that a reasonable guardian would have commenced proceedings and so the court’s discretion arose.

As Justice Murphy put it at [66] the circumstances upon which the decision whether a failure to initiate proceedings was unreasonable include “The nature and strength of the claim, the damages which were expected to be recoverable and any cost considerations which might reasonably bear upon a decision to sue in the particular circumstances of the case.  Medical reports which had been obtained by the plaintiff’s actual guardian would be admissible as relevant to, but not necessarily determinative of, the question of whether, objectively, it was unreasonable for a guardian of the plaintiff not to commence proceedings within time.”  He further stated at [67] “If, in the circumstances, it was unreasonable for a guardian responsible for the plaintiff’s welfare etc. and practicably capable of suing not to have sued within time, the minor is taken to have lost a valuable priority right in a situation where he or she was incapable of preserving the right for himself or herself.  In that event the discretion to extend time may be exercised.”

Interestingly such reasoning does not directly deal with the availability of an extension in the more common scenario where no expert opinion has yet been obtained within the six years (for instance because the parents have been too busy caring for their disabled child to give litigation priority prior to this timeframe expiring, or it is only then they are informed of a poor long term outlook for their child and then consider litigation).  I anticipate allegations in such scenario that the parent/guardian has acted unreasonably in not more promptly investigating a medical negligence claim before the six-year period expires.  Bizarrely, it will be in the guardian’s best interest to accept that they have acted unreasonably in not investigating earlier.

It is important to appreciate the unusual circumstances in Barr.  Expert opinion had already been obtained critical of the care provided and supportive of the fact that this had caused injury.  Nonetheless, in my view the decision encourages a view that the scope of the extension provision is broader than perhaps previously envisaged and there is an arguable prospect for extensions to be granted, where no expert opinion has been sought by the guardian within time or, though this is more controversial, where initial advice may not have supported criticism

Almario: the final chapter

Posted in Case Summary

 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..

Bariatric Surgery Case fails on appeal: house of cards falls..

Posted in Case Summary

 In Varipatis v. Almario [2013] 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.