Coroner's Court - Obligations if Making Adverse Findings

Posted on January 27, 2010 by Julian Johnson

 As is a matter of public record, I act for Dr Philip Rowlands, an obstetrician and gynaecologist, in relation to the forthcoming Coroner's Inquest into the death of Ms McLevie at Osborne Park Hospital, in April 2006, 30 or so hours after she gave birth to a child at such hospital.  On any analysis a sad and tragic case.

In the course of preparing for such inquest, I came across an interesting recent case dealing with the Coroner's obligations and so called 'adverse findings,' made by him, the important issue of giving warning to persons before such findings are made against them and the capacity to challenge such findings (Re: the State Coroner ex parte Min for Health [2009] WASCA 165, delivered by the Court of Appeal (WA) 18 Sept 2009).

It is well known that in conducting his investigation, the coroner is not bound by the rules of evidence (section 41) and effectively has broad power as to the information (and sources of information) he considers and the use he makes of such information.

The case is a typically thorough summary of the coronial process, lead by Buss JA.  It is worth review by anyone involved in these inevitably tragic cases.

The end result was 'bitter sweet' for the relevant medical practitioner concerned in this case.  It is notable that such psychiatrist did not bring the appeal - this was brought by her employer, the Minister for Health.

On appeal it was established that the initial Supreme Court judge had erred, in concluding the relevant coroner's conclusions that 'with hindsight' the relevant psychiatrist, could have avoided the deceased's death via a community treatment order ("CTO") to ensure the deceased took his medication required to control his psychiatric state (and avoid psychotic episodes, such as lead to his death), were not adverse to such psychiatrist (ie the Court of Appeal accepted such comments were adverse to the psychiatrist and presumably her employer).

The Court of Appeal however concluded that the Coroner was entitled to make such finding on the evidence and no error was shown in such conclusion.  In other words, the adverse finding stands.

 

 

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Asher-Relf -v- Min for Health - no time extension for pre-05 birth cases

Posted on January 17, 2010 by Julian Johnson

 In this decision delivered by Judge Stevenson of the District Court on 23 December 2009, Judge Stevenson concluded that he had no power to extend the time for commencement of a claim under the 2005 Limitation Act, in relation to a child born prior to such Act's commencement.

The case, in which I am involved on behalf of the child Patrick, relates to alleged negligence on the part of King Edward Memorial Hospital in Patrick's mother's obstetric care in November 1996. Patrick suffers from cerebral palsy which it is alleged arose because of the shortcomings in care.  The allegations of shortcomings of care and that this caused Patrick's cerebral palsy are supported by compelling expert opinions from independent obstetricians, neonatologists, paediatric neurologists and otherwise.  Uncontested medical evidence put before the court spelt out Patrick's significant disability as a consequence of his cerebral palsy.

Prior to November 2005 the law in Western Australia provided that any medical negligence claim against a public hospital alleging negligent care causing birth injury had to be commenced, at the very latest (and this time limit required either the hospital's consent or permission from the court) by the time the child turned six years of age (section 47A Limitation Act 1935).  Such time-limit self evidently could result in gross unfairness and injustice, and for a substantial period of time has been the subject of criticism by judges, law reform bodies and others.  No equivalent applied to private hospitals or private patients in public hospitals (at least in so far as claim was brought against the private obstetrician), against whom the time limit was generally the child's 24th birthday.

In this case it was argued on behalf of Patrick that changes to the limitation laws which came into effect in November 2005 should permit the court a discretion to allow claim to be brought outside the six-year time limit, if warranted as a matter of justice.

As stated at the outset, Judge Stevenson, whilst expressing obvious disappointment at such conclusion, determined that this was not the case and in effect, the changes to the limitation period laws in 2005 were only of prospective effect and did not remedy the injustice arising for children born prior to November 2005 (when such laws came into effect).

An appeal has been commenced to seek the Court of Appeal's decision in relation to this important issue.

The situation specifically with regard to Patrick's case is complicated further by the fact that the failure to begin a claim within the six-year time limit required was caused by the hospital's failure prior to this deadline, to disclose a critical piece of evidence in relation to Patrick's delivery and his mother's obstetric care (the CTG trace relating to such labour).  As Judge Stevenson mentions in passing in his decision, apart from further accentuating the injustice of the six-year time limit, this potentially gives rise to complex legal issues in terms of the hospital's capacity to rely upon such six-year time limit as a defence to the claim.

What is assured is that Judge Stevenson's decision is by no means the end of this matter.

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Lets Start on a Positive Note...

Posted on January 5, 2010 by Julian Johnson

Happy NY to those reading!  Feel free to let me know if you have any thoughts on content since I started the blog, suggestions how to improve the blog or requests for topics or comment.

As the title says, thought it apt to start the new year on a positive note...

My wife has for sometime suffered from a sore shoulder (no doubt in part from carrying the heavy load of being married to me...!)  Anyway, she finally got around to having it investigated following which it was identified she had rotator cuff tear and bursitis, requiring repair and acromioplasty.  Off she then went to see the best shoulder orthopod we could find.

Anyway, pleased to report that said orthopod, in addition to technical proficiency in the way the repair is to be performed, also demonstrated exemplary communication skills in his contact with my wife.  My wife returned from her pre-operative appointment with a formidable looking folder which contained a wonderful, easy to read explanation of the surgery, the risks associated with it and a very easy to follow guide to post-operative rehab.  

I couldn't fault it and am starting the new year with the attitude that the medicine I generally encounter in practice represents the exception rather than the rule and despite the odd dark moment, my almost continuous belief that the overwhelming majority of Drs are fabulously skilled, hard-working professionals, is the right one.  Lets see if and how 2010 shakes this!

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West Australian Public Hospital Performance 2009 year

Posted on December 4, 2009 by Julian Johnson

 While trawling around looking for some information on trauma surgery, came accross this neat and convenient summary of our public hospital system's performance against several key performance indicators for the 1st 6 months of 2009. 

Makes interesting reading, particularly the ongoing 'battle' with accident and emergency services.  

I particularly noted the pretty awful results concerning times to see accident and emergency patients assessed with triage ratings 2 onwards (72%, 62%, 72% of patients in such categories being seen within the recommended timeframe).  

The report doesn't say what the average time for seeing such patients was, but presumably there are some such patients not seen for well and truly more than the recommended review timeframes.

No doubt some of such patients suffered prejudice to their positions due to such delay in being seen, investigated and treated.  Given the scale of demand for accident and emergency services it seems likely to remain a fertile ground for medical negligence claims, while this performance remains well behind the Australian College's recommendations.

A continuing battle for our public health system.

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Hernia Case Fails (Lentzner -v- Baumwol)

Posted on December 3, 2009 by Julian Johnson

 Judge Davis of the District Court rejected Ms Lentzner's medical negligence claim against general surgeon, Max Baumwol, delivering her decision on 6 November 2009.

Ms Lentzner's claim alleged that Mr Baumwol was negligent in the manner in which he sought to perform repair of bilateral inguinal hernias in 2003.  For an explanation of surgery (albeit laparoscopic so different from in Ms Lentzner's case) to repair inguinal hernias, see here.

The primary allegation was that such repair ought to have utilised mesh to repair the relevant hernias and not, consisted only of surgical suturing of the relevant hernias.  It was said that if this had occurred, the relevant hernias would not have recurred.

Judge Davis [55] concluded that Ms Lentzner's account of events was in some respects unreliable, though she accepted Ms Lentzner believed the truth of what she said.  This was based on Judge Davis conclusion that Ms Lentzner's claims as to very severe pain immediately following her surgery were unreliable, because the observations recorded in the hospital records did not suggest anything out of the ordinary.  Judge Davis emphasised hospital staff's appreciation of the importance of the accuracy of records, as reason she could confidently conclude that if Ms Lentzner's claimed symptoms had been present, they would have been reported.

Despite clear inconsistencies between his claims as to the method of repair of 1 hernia and the contemporaneous records, Judge Davis accepted Dr Baumwol's claims as to the manner in which he performed such repair, based only on his claims as to his usual practice [111].  

This, with respect, was generous to him.  If inconsistency with the records was enough to reject Ms Lentzner's claims (as set out above), why was such reason not reason to reject Dr Baumwol's claims, which were not even asserted to be based on recollection, but of 'usual practice.'

In accordance with the majority of expert evidence before her, Judge Davis accepted that Dr Baumwol's decision to repair the hernias using sutures and not mesh, was reasonable.  The experts agreed that there was no hard evidence available at the time (or now) suggesting a benefit to one technique over the other (though interestingly, and this matches my uninformed understanding, they accepted that since 2003 there had been a move towards greater use of mesh, particularly as problems relating to infection with mesh at that time had been reduced).  Judge Davis concluded:

 

I find that the evidence from the experts establishes that whether to use mesh in these repairs involves a matter of clinical judgment on which reasonable minds might differ

 Consequently this basis of alleged negligence failed.

Based on the same medical evidence, Judge Davis dismissed the claim that there was an obligation to warn Ms Lentzner that if mesh were used to repair her hernias, this would reduce the risk of recurrence.  The evidence before Judge Davis did not support this conclusion that such a reduced risk would apply.

Of significance, Dr Archer, a surgeon relied upon by Ms Lentzner who had operated upon her following Dr Baumwol's care, gave clear evidence at trial that the problems he identified were not, as Ms Lentzner's case alleged, a recurrence of the hernias that had been treated by Dr Baumwol [R80].  This was really the end of Ms Lentzner's case, because if her hernia did not recur, she had little claimed consequence of any of the alleged shortcomings in her care.

All in all an unhappy experience no doubt for Ms Lentzner.

From a legal principle perspective, the case included 2 further interesting issues:

1) The case included an interesting examination of the capacity for a psychologist to provide expert evidence concerning diagnosis.  Traditionally this has been an area in which psychologists (I have thought unfairly) have been held unable to give expert evidence.  This issue was identified but not decided by Judge Davis in relation to evidence of diagnosis based on knowledge of DSM IV on the part of a well known local psychologist, Bill Douglas.

2) the case confirmed the traditional 30% discount for early receipt of past lost superannuation benefits is now too great.  Judge Davis, in accordance with submissions from both Counsel accepted that a rate of 15% was now reasonable (in her provisional assessment of damages).

 

 

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Court of Appeal reject Davy Appeal

Posted on November 22, 2009 by Julian Johnson

 The Court of Appeal delivered its decision on 7 Oct 09, rejecting the losing patient's appeal against District Court Judge Wager's decision, dismissing her claim at trial.  The lead decision was delivered by Justice Newnes, with whom the 2 other members of the Court agreed.

The case concerned alleged negligent medical care following Ms Davy undergoing knee replacement surgery in February 2004.  Ms Davy claimed that the public hospital, Sir Charles Gairdner Hospital, at which she was receiving post-operative care was negligent in failing to arrange more urgent review and intervention when she developed post-operative swelling and signs of infection, ultimately leading to her requiring major further surgery.  Interestingly, it was clear these infection issues did not arise until July 2004, so 5 months after her surgery.

The case overwhelmingly depended upon the issue of whether Ms Davy was to be believed as to her claimed attempts to contact the hospital's orthopaedic department to try to arrange her review, when her post-operative problems arose.

Judge Wager, the District Court judge was not convinced that Ms Davy's claims were reliable, largely because she found that Ms Davy's statements as to her attempts had varied over time and so in Judge Wager's view, were ultimately unreliable.  Judge Wager also noted that Ms Davy's GP's records did not suggest she had raised concerns in relation to her knee's condition, at a series of consultations after she claimed the problem had arisen (and after it was clear she had raised it with such GP).  On the other hand, it was clear that Ms Davy had phoned the orthopaedic department repeatedly over the relevant period (this was supported by her phone records).

Because of Judge Wager's rejection of Ms Davy's evidence (she found Ms Davy was "an honest, but unreliable historian"), she found the hospital were not negligent and there was not a need for the hospital to have arranged review and treatment of Ms Davy more urgently than occurred.

In a sense the appeal was a brave one.  It is well recognised principle that because an appeal court do not have the trial judge's advantage of seeing and hearing the manner in which witnesses give evidence, they are generally very slow to interfere with conclusions reached by a trial judge which are based on credit/truthfullness of a witness.

The above points were made clear by Justice Newnes, who found there was no merit in Ms Davy's attacks upon the trial judge's conclusions, which he confirmed were all open to her, even if contrary more favourable conclusions could have been made.

The case is again a good reminder of the difficulty of appeals when a trial judge has made adverse credit findings.  If a trial judge makes adverse findings about a plaintiff or their witness' evidence that are 'harsh' (perhaps because based on relatively minor errors etc) there is often little that can be done.  In a sense, in such cases, often an appeal is not really open.

It is also a very good reminder of the need to prepare for trial carefully and particularly to ensure all important witnesses are reminded of any previous statements or sworn evidence they may have given relevant to the facts of the case (which may have been given quite some time earlier).  This is absolutely critical in cases where the primary facts are the fundamental dispute (as here).  In this case, Ms Davy's evidence in the witness box diverged in some respects from statements she had made, particularly in answers to interrogatories.  

 

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Personal Responsibility + Society's "Parenting" Role

Posted on November 15, 2009 by Julian Johnson

Again, slightly off topic, though the broader consequences apply in a healthcare context.

Read with interest the Editorial in the Weekend Australian yesterday about the High Court's recent decision, with the less than informative name, C.A.L. No 14 Pty Ltd v Motor Accidents Insurance Board [2009] HCA 47.

The facts in the case were simple:

  1. the case concerned a claim of negligence against a Tasmanian hotel owner who handed back motorcycle keys lodged for safe-keeping to an insistent, belligerent patron who on leaving the pub was killed in a crash while showing a blood alcohol level of 0.253.
  2. A reading of 0.05 doubles the risk of a crash. At 0.08, the risk increases seven times. At 0.15, it is 25 times higher. Data was too scant to reliably calculate the risk at the level taken by the dead man.
  3. The man had drunk seven or eight cans of bourbon and cola between 5.15pm and 8.30pm. According to the judgment, the licensee told him he had had enough, that it was time to go home, and asked for his wife's phone number so that she could fetch him. The patron became agitated and said "If I want you to ring my f'ing' wife, I'd f'ing ask ya." The Licensee responded: "Whoo hang on, whoo, whoo, whoo, this is not, you know, don't go crook at me, this is not the arrangement that was made." Not having the wife's phone number, and not wanting to push the issue into further confrontation the licensee then gave the keys to the patron, after asking him three times if he was OK to drive

As has been widely reported (to the joy of many in the hotels industry), the High Court dismissed the claim against the publican, finding that no duty was owed to the driver that had been breached.

I accept the points made in the Australian, concerning the need for our society to accept individual choices and responsibilities.

On the other hand, when regard is had to the carnage each year on the roads due to alcohol, such 'individual responsibility" is hardly a promising or pro-active step to saving our bright young things from self-destruction on the road.  

Quite apart from the case of habitual heavy drinkers, who has not had opportunity to intervene when friends and loved ones might out of character have had a bit much to drink and required a tap on the shoulder and gentle insistence on a lift home?  It is a consequence of intoxication that it impairs judgement, not just behind the wheel but in getting behind the wheel in the first place.

The Court's decision seems to ignore the more complex issues behind public safety and the 'cost' of irresponsible alcohol sale, instead championing a self-determinant right to self-destruction (and potentially harm to innocent third parties on the road).

With respect there is much to be said of the comments in the Age, concerning this decision, which reach a very different conclusion to the Editorial in the Weekend Australian.

 

 

 

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Miller - no duty owed by driver of stolen car

Posted on November 13, 2009 by Julian Johnson

Although not concerning medical negligence cases, this case is of interest.

In this recent Court of Appeal decision (delivered 6 Nov 09), the Court found that a driver of a stolen car did not owe any duty of care to a passenger in such vehicle, who was aware of the fact the car was stolen.  The Court found the driver and passenger were engaged in "a joint criminal enterprise" and so no duty to take care arose.

Consequently, when the driver drove negligently colliding with a pole causing injury, the passenger, who at the time was a 16 year old girl, could not recover compensation for her injuries.  The passenger's injuries were serious and another passenger in the vehicle died from their injuries.  

The passenger was in a relationship in which she regarded the driver as akin to her 'uncle' and at trial evidence had been lead indicative of the driver's insistence that the passenger remain in the vehicle, when she had asked to be dropped off.  She had made this request when the driver, after initially driving safely, had started to speed and drive more dangerously.

I would have thought, with respect, that this final point would have removed any 'joint criminal enterprise" finding.  The passenger wished and requested to be let out of the car.  Had her request been followed, the joint illegal conduct (driving the stolen car) would have come to an end and she would not have been in the car at the time of the collision.  This point was recognised and commented upon by Buss JA.  I am surprised it wasn't emphasised more by the passenger.

Newnes JA, the other member of the Court based his conclusions on a view that:

"the respondent could not reasonably have expected that the appellant would drive the vehicle according to the ordinary standard of care" 

With respect, this seems to me to make a great leap.  Why was the fact the passenger's 'uncle' was driving a stolen car, necessarily reason to assume he would not drive safely and would put the occupants of the vehicle at risk by dangerously driving?  Also, what is the relevance to this of the fact, as stated above, that the passenger had requested to be let out as soon as the driver started to drive unsafely?  Doesn't this say anything of her expectations?

This decision reversed the trial judge's conclusion in favour of the passenger.

No doubt a shortcoming on my part, but with the greatest of respect, I can't understand the reasons for this conclusion.  McLure JA and Buss JA suggest the foundation for such view is that given the illegality of the enterprise it is not possible to ascertain an appropriate standard of care to be expected [R3] + [R81].    

Buss JA stated [R82]:

It is not feasible or appropriate for the law to endeavour to fix a standard of care by taking into account and evaluating the incidents of the criminal enterprise upon which the appellant and the respondent were jointly engaged

I for one am not sure why this wasn't feasible or appropriate.

Clearly a tough stance for our highest court. 

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Ellis Argued - now we wait!

Posted on November 9, 2009 by Julian Johnson

The High Court has now heard argument concerning this important (potentially ground breaking) decision and we are now in the Court's hands, for their decision.

The transcript of argument can be found here.  Although reading the transcript is not the same as hearing 1st hand, it seems Bret Walker SC had a torrid time, at least from some members of the Court!  

Interestingly, and this is close to a common concern in medical negligence claims, emphasis was placed by him on the capacity of the negligent party to know the information from which firmer conclusions about whether "A caused B" could be drawn.  It is often the case in medical negligence claims that when it is difficult to prove whether negligent medical care caused a particular bad outcome, that frustration is felt that the answer to such question would be known with certainty - if only the negligent care hadn't occurred (eg if the negligent failure to diagnose the breast cancer hadn't occur, we would have known whether there was or was not lymph node spread etc).

It seems to me that at least the more outspoken members of the Court during argument, expressed considerable scepticism at the approach of our Court of Appeal, in accepting that the Plaintiff's exposure to asbestos had contributed to his lung cancer, even though at least some evidence suggested it was 100 times more likely his cancer was a consequence of his smoking.

It also looks to me that the Court may be contemplating narrowing the traditional degree of contribution from negligent (or other tortious) conduct to an injury, for liability to arise.  

Traditionally, enough was shown if negligent action made a "material" contribution, which has often been accepted as met, when the contribution was more than negligible.  

in other words, if the Court accepted there were multiple causes for injury or illness, damages would be awarded if one of such causes was due to negligence (even if it was a minor or secondary cause - and even if it was likely the injury/illness may have occurred even if no such negligence occurred).  Further (and this has always been the difficult part to this, for me conceptually!), liability would then be for the entire consequences of the illness.  There would often not be a substantial reduction in the damages awarded, for the chances the same outcome would have occurred, even if the negligence had not occurred.

From my reading, several members of the Court were grappling, during argument, as to whether for a contribution to be 'material,' and so liability and damages follow, a greater extent of contribution should be required.

It will be interesting to see how the dynamics of argument translate into the Court's decision.

As a footnote, have to say I liked Justice Gummow's comment, when the submission was put that deciding whether a factor was or was not a cause of disease, was a matter of 'logic,' that:

"Logic itself is a house of many mansions"

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credit where credit is due - the value of an apology

Posted on October 21, 2009 by Julian Johnson

 All due credit to our West Australian Minister for Health, Kim Hames, for his apology today to the family of the 17 year old who tragically died at Albany Hospital, and who's death was recently the subject of a scathing report/finding by our coroner.

Always hard to know, but the sound bite I heard sounded entirely genuine and his response is to be applauded 'in spades.'

Anyone who has worked in medical litigation for persons pursuing claim, can tell how on almost every instance, clients are motivated by more than monetary compensation and almost invariably speak of the need for someone to take responsibility, to be accountable and as importantly, to ensure that steps will be taken to ensure it does not occur to the next unfortunate patient.

As I say, all credit to Minister Hames.  I am sure his gesture will aid the family's path, following this tragedy.

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