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

I note with interest the Court of Appeal's decision in Nigam v Harm [2011] WASCA 211.

Whilst a case concerning a negligence action against a firm of solicitors, the important aspects of the case predominantly related to medical negligence claims.  

It was alleged the relevant firm of solicitors had been negligent in failing to:

• take action to protect a potential medical negligence claim by Mrs Harm against surgeon, Dr Hastwell.
• pursue various lines of investigation concerning possible lack of care on the part of the relevant surgeon, Dr Hastwell.

Mrs Harm had succeeded in her case against such solicitors at trial, but on appeal, such claim was overturned. The court majority concluded that the solicitors had not been negligent.

For a lawyer working in this area, it was interesting to read the degree of initiative/imagination considered required on the part of solicitors investigating quality of medical care issues.. My impression was that the 'bar' was set lower than I would expect.

This was particularly so, in relation to the issue of reminding Ms Harm about the impending expiry of the 'holding' writ that had been lodged (which would end any claim if it expired without action).  Given it seems she was still eager to pursue claim, I am surprised her solicitor was not considered obliged to remind her of this deadline so a decision could be made, whether the writ was served (or an application made to extend), given the consequences if it was not (which it was not clear to me, from reading the decision, she knew).

Justice Newnes made interesting comments in relation to the one area he did consider the solicitors ought to have considered some prospects of a legitimate claim, a claim that the surgeon had failed to appropriately warn Mrs Harm of the risk that the surgery may cause significant post-operative nerve pain in the area of scarring at her surgical incision (see for example @ [116] - [121]).

His Honour concluded, that any claim by Mrs Harms would not have prevailed, because she would not have proved that if warned she would not have gone ahead with such surgery.

With respect, I am not sure the evidence really supported such a conclusion (as distinct from a conclusion that 'no conclusion' could be drawn, because too many important things were unknown relevant to such decision (for example: the true scale of such risk, the alternatives open to her, other than such surgery {including the risk if it was performed laparoscopically, if this was possible}).

Justice Newnes view was shared by McLure P and so prevailed.   Interestingly, Justice Murphy disagreed and considered the solicitor had been negligent in relation to this failure to warn aspect of the potential claim.

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 Further to my earlier post, time is now extremely short for birth injury claims, for children born before Nov 2005.

As I have previously posted, the Limitation Act 2005, retrospectively (and without any publicity) shortened the time for claims relating to alleged negligent obstetric (or midwifrey) care, prior to its introduction in November 2005.

Before this legislation, children injured due to negligent obstetric or midwifrey care had until age 24 in most cases to bring claim (there is an important exception, in the case of claims against public hospitals or other public health services).

The time for such claims was shortened, so that it runs out in less than 10 days time... on 15 Nov 2011! This does not apply to other medical claims, only birth injury claims.

Anecdotally, there are very few people (even lawyers) who are aware of this limitation period shortening.

If you have such a claim - or are handling it for a client, the time for action is now......

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 The Australian Institute of Health and Welfare has published another of its annual reports, providing statistics on public and private sector medical indemnity claims in Australia.  These cover the 2009 year.  Interesting reading..

Total 'new' claims in the year totalled 2,600, roughly equally split between public v private medical care.

The more interesting figures came in terms of cases closed/finalised in that year.  The total here was 3,100, which sounds like a lot until it is appreciated that 30% of these were resolved without any payment (so 930).  Then we take out another 36% in which the payment was $10,000 or less (another 1,1116).  This leaves 1,023 claims, of which 124 (4%) recieved payouts of $500,000.00 or more.

Interestingly, there was no suggestion at all in the report (at least that I could see) to suggest any increase in claims costs/incidence.  This in real terms probably indicates a fall, given the increasing costs of remedial medical treatment etc, that would fall within many claims.

Crisis, aint no sign of one... for all the info, see here.

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I gave a talk a couple of weeks ago for the College of Surgeons, highlighting the key principles governing the obligations owed by medical and other expert witness' to the court + set out in the District Court of Western Australia's Code of Conduct.  Emphasis was placed upon the trust and reliance the Court places on such experts to assist them, rather than being partisan advocates for the parties retaining them.

Judge Stevenson, in a non-med neg context (though equally applicable) gave his 'thoughts' on the topic, and the Court's demanding expectations of experts, in no uncertain terms recently, in Mills v Downer EDI [2011] WADC 82, see particularly @ [241] - [242].

I note in this context, in a similar vein, the recent NSW Supreme Court decision in KF v Sydney Children's Hospital [2011] NSWSC 874, in which the wonderfully named Justice Johnson, refused permission for a party's legal representatives to meet with the experts they would rely upon to support their claims of negligence, ahead of an agreed joint conference between the 2 sides' experts.
The Court (and this is embodied in such Court's Standing Practice Note for such conferences), seeks that the experts confer and seek to narrow or resolve their areas of disagreement without the involvement of legal representatives.  No doubt cause for palpitations for the lawyers involved!

The legal representatives have a critical role in setting the questions/issues for the experts to consider, but at the stage of such consideration, their role and advocacy based on one party's best interests or another is to be avoided, to the extent possible.

In Western Australia, the use of such devices/processes are only now emerging.

Generally, parties (and this is true on both sides) have to date jealously guarded control + access to their experts.

It will be interesting to follow in the next year or so + figure out how such process' emerge and how they alter the dynamic and approach needed in pursuing such claims. 

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Was interested to read in the West of the James Cook Uni study to follow up outcomes and attitudes (after the event) of women choosing vaginal -v- elective caesarean section.

While I defer to the experts, the more information and hard evidence, rather than 'old wives tales' and medical-politics, assisting women to make health decision relating to childbirth the better..

For one thing, some accurate and verified information about incidence/severity of pelvic floor injury/dysfunction following vaginal delivery, I would have thought useful in assisting women with their choice.

I was once told that a study of UK female obstetricians overwhelmingly supported elective c-section, because of the avoidance of potential urinary incontinence/bowel dysfunction/sexual dysfunction perceived to arise with a vaginal delivery. How many obstetricians warn patients of this risk, when discussing birth options, particularly with an anticipated large baby?

I appreciate that this is a complex decision for the mother, involving evaluating the risks and benefits for both mother and baby. Nonetheless it is their decision + our Law recognises an obligation on those advising, to ensure they are aware of all the information likely to be significant to them in making their choice.

I was surprised to read the RANZCOG President's comments that "One of the issues facing obstetricians is the lack of information about the underlying reason a woman may want to choose a caesarean section where there is no medical reason."

Isn't there an obvious solution to this... in a non-confrontational, non-judgemental context, ask her........ 

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As a post-script to the recent resolution of my client's claim against a travel agency, promoting Thai cosmetic surgery, I now have to drive each day past a massive billboard on Railway Rd, Subiaco, promoting the services of another such agency. Clearly its a thriving business sector...

To protect those uninformed enough to think that breast augmentation surgery or laser eye surgery, in conjunction with 5 Star Accomodation in SE Asia, is a good idea + the 2011 equivalent of a beach massage in Bali or a pedicure at the local shopping centre, my modest proposal is to introduce legislation:

1) requiring such agencies to have comprehensive insurance against claims by those travellers suffering serious complications/adverse outcomes from their cosmetic procedure.

2) requiring such agencies to recommend and have prospective clients/patients sign an acknowledgement that they have been advised to seek indepedent local medical advice as to the sense (or otherwise) of the proposed treatment.

3) holding such agencies liable in the event of an avoidable adverse outcome from the foreign treatment.

Can't see it happening, but .... 

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Maintaining the sobering record of Plaintiff claims based on informed consent, is a recent South Australian case, Coombes v Katsaros [2011] SADC 93.

The claim concerned alleged complex regional pain syndrome ("CRPS") said to have arisen following hand surgery.

The key to the Plaintiff's claim was his assertion that he ought to have been warned of the risk that such hand surgery, which was indicated, but not essential, could cause CRPS and so further suffering.

Evidence at trial was given suggesting some hand surgeons would provide such a warning, whilst others would not. The evidence as to the incidence of such complication was not clear, but accepted by the trial judge as occurring in a severe form in perhaps 1 in 2,500 cases.

In the circumstances, Judge Millstead was not convinced the Defendant had a duty to warn of such risk (see @ [267]). Interestingly, Judge Millstead appeared to place significant weight in his conclusion, upon the absence of any specific questioning by Mr Coombes concerning risks with the surgery.

The implication is that perhaps had he appeared more cautious about proceeding, questioning the doctor as to what may go wrong, a duty may then have arisen to warn of the complication that occurred.

Mr Coombes case therefore fell at the first hurdle. Given Judge Millstead's conclusion, it would have failed at the second (and more onerous) stage, assuming a duty to warn of the relevant risk arose, of showing that such a warning would have lead to the patient refusing to proceed.

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Following on a recent post, in recent days I have again been reminded of how jaundiced my perspective on medical care is and how the great majority of careful, skilled medical practitioners "fly under the radar," in my world of medical litigation.

The neurosurgeon brave enough to operate on my wife (I suspect he does not know + my wife certainly would have been slow to volunteer her relationship to me), provided a shining example of cautious, well explained and reasoned advice, followed by technically proficient surgery.  The 'icing' on the cake was his call to me (as next of kin), at about 9:30 pm last Friday to confirm all had gone well + he was optimistic of a good outcome.  In no way part of his contractual obligations, but very much appreciated

The second example was the press club interview with Barry Marshall I happened to catch today on daytime telly...  How inspiring!  Although not quite ready to hand over the $2,000 per head for genome testing + registration, he certainly painted a clear picture of the enormous benefits genetic testing can offer to medicine in the surprisingly near future.

On that note, back to work + preparing claim against a lesser surgeon, who's muddy thought, awful communication skills and oaf-like technical acumen is more what keeps me busy day to day.

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Odd and uncomfortable territory for a lawyer to touch upon...

As is now a matter of public record, I act for Saba Button and her parents in relation to her claim arising because of her terrible complications from the flu-vax in 2010.

There has been recent media interest in the fact an approach has been made to the WA State Government, seeking an ex gratia payment, given the circumstances surrounding Saba's flu-vax.

I have stated publically that in Mick and Kirsten Button and my view, the Government has a moral obligation to Saba, quite discrete from any legal liability for compensation.

More than 1 colleague and friend (legal and otherwise) have 'tongue in cheek' passed comment on the heresy of a lawyer speaking about 'moral,' as distinct from legal obligations. I concede it is not an area in which I have any more knowledge or skill to comment than any other member of our community.

Thinking about this has however highlighted in my mind the fact that the Law 'only' serves to set the minimum standards of behaviour set for society; the limits of what is and is not acceptable. It says absolutely nothing and has no meaningful role in seeking to encourage our best. To define what we should hope of each other, or aspire to, as a community and individuals, rather than what is the point beyond which we will not tolerate...

Little wonder then that Law can be a depressing field to work in, from time to time. In medical negligence law, I spend my entire time focussing on whether care was below the minimum that ought be expected of our health professionals. I see nothing and have no contact with the inspirational, standard-setters in medical and other practice, defining best practice.

In any case, whether expert or not, I am convinced the Government should (though it can't be forced to) do the right thing by Saba.... 

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