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

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.

Settlement of medical negligence claims (part 2)

Posted in Our Cases

 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.

When does a claim’s settlement take effect in medical negligence cases? PART 1

Posted in Our Cases

 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)

Key New Medical Negligence Case Decisions – no good news for plaintiffs!

Posted in Case Summary, Failure to Warn

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. 

Are Medical Negligence Trials Facing Extinction?

Posted in Our Cases

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

 

Trials Can be a Harrowing (and inappropriate) Experience!

Posted in Case Summary

 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.