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

 I have often been asked at presentations I have given for health professionals, what is the single step they can take which will reduce their chances of facing a claim of medical negligence.  

My answer has been the same for 10 + years.  

It is surprising how many clients I see, who apart from concern at financial consequences of the poor outcome they have experienced from medical care, are driven by a sense that there has been a refusal to accept responsibility.  This is often why client's say their claims are a matter of principle.    Further it is remarkable how many clients appear motivated by a desire that the same outcome not be experienced by 'the next patient.'

Given this, in my view, apart from taking reasonable care in the medical advice and care provided, the best thing a health care professional or hospital can do, is ensure there is a clear, frank and honest dialogue when the adverse event occurs.  It would I am sure surprise some health professionals, how much a patient will 'shrug off' if they believe an honest mistake has occurred, that the person involves accepts responsibility and that there will be concerted efforts to ensure it does not recur.  This is even more so, in circumstances where the adverse outcome has not been a result of any lack of care.

With this in mind, I was very interested indeed to read this in a recent Wall St Journal article.  This is the 1st statistical measure I have seen of the effect of adoption of an 'open disclosure' policy and is entirely consistent with my anecdotal experience.  Given the results, I would have thought health care bodies and their insurers would be very interested indeed in further investigation of 'claims management' on the ground.  Given our Civil Liability Act's protection for apologies, this is even more so the case in West Australia.

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 The power of the blog!  I get to write about the remarkable Ms Palin, who I suspect would get on like a house on fire with our own Pauline H.

Anyway, came across this amusing response post concerning Ms Palin's recent ruminations on tort reform in the US, published (well self-published) via the ubiquitous facebook, which I though worth sharing.

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Reasonably often, clients consult us following the death of a loved one, resulting from apparent negligent medical care.

I have spoken to a potential new client this week, traumatised by the tragic death of their child as a consequence of what seems from the client's account to be clearly negligent care on the part of a GP (who failed to take any action despite complaints that the child had vision disturbance and excruciating headaches for weeks prior to their death).

In Australia, in such circumstances, claim can be brought by the surviving parent/child/relative, but 'only' for the psychological injury suffered by them.  No claim can be brought for the suffering and death per se of the victim of the negligent care.  This is different from the US, though some strange rules appear to apply there (for example see here).

Sadly, the most common situation in which I have seen such claims, concerns negligent obstetric care, leading to the death during childbirth (or in utero) of the baby.  In such claims, the parents' entitlement to compensation for the loss of their child, if it can be shown that the obstetric care was negligent, is limited to compensation for their psychological or psychiatric suffering.  No claim exists for the loss of the child in itself.  No claim can be made for the loss of an opportunity for life by such child.

Further, no claim can be brought at all if all the parents suffer is "normal grief" (whatever this may mean!) falling short of amounting to a psychologically or psychiatrically diagnosable condition.  This is an entirely illogical (and utterly absurd in practice) restriction upon those who can claim.  It is justified on (dodgy) policy grounds of limiting the scope of people able to bring claim.

Clients are often dismayed to hear of these restrictions (as was my client this week), which mean that where death of a child results from negligent care, in most cases, entitlements to compensation will be modest.  For now (and there is no sign of any inclination for the courts to expand the scope or extent of liability at present), unfortunately these limits will however continue to apply, whether fair, just or not.

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 Have been following (loosely) recent discussion in the US concerning health care reform.  

As usual, a self-interested group, have sought to tag 'tort reform' (I've always thought a neat term for the removal of rights from the negligently injured, not sure it is 'reform' rather than 'remove') on the agenda.  

Twitter (yes, I know...) is alive with endless calls for reform to stop the 'lottery malpractice' verdicts and greedy lawyers.

Came across this very interesting article, summarising the real evidence as to costs of medical malpractice in the US (often characterised as the most litigious country for such claims).  

All of the comparable evidence in Australia that I am aware of, points in the same direction.  The 'crisis' is with the quality of health care provided, rather than the very small minority of those who could pursue compensation claims, that actually do so.

Have to say I'm with Bill, Hillary and Barrack on this one.

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I read with some interest a recent decision by Judge Sleight in Pollard v Endale Pty Ltd [2009] WADC 97. The decision concerned an application by an injured patient seeking that Mount Lawley Private Hospital, the hospital at which their care was provided, should be obliged to disclose documentation relating to its accreditation with the Australian Council of Health Care Standards ("ACHCS").

Such accreditation is a voluntary process.  To be accredited a hospital must agree to maintain various standards, in terms of adverse event monitoring and avoidance.

Intriguingly in such claim, criticisms were made of the private hospital for failing to adequately show care and skill in its assessment of medical practitioners, before giving them rights to admit and treat patients at the Hospital, to monitor their performance thereafter and to ensure the Hospital's facilities were utilised competently.

Judge Sleight ordered that the Hospital produce documentation passing between the private Hospital and ACHCS in relation to its accreditation application.

The case is intriguing because it has long been known that particularly the better run private hospitals compile and have access to enormous volumes of data concerning the performance of surgeons and other clinicians practicing at their hospital. Notoriously such things as complications rates and their type and cause are captured and readily available, though never released to potential claimants (or prospective patients).

Pursuing allegations of the unusual type apparent in this case may be a useful way of obtaining access to this information, otherwise jealously protected by the hospital's operators. Quite apart from having an additional ground for criticisms of Hospitals, no doubt very useful information may be obtained to support claim against the primary surgeon/ clinician responsible for the treatment which led to the poor outcome    

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 One rumour I have heard suggests that the High Court will be asked in Amaca and Ellis to review the degree of causation needed for negligent action to be taken to have caused loss.  These critical cases are due to be heard by the Court, later this year, probably in October.

At present (and for as long as I have been in practice), it is sufficient if the negligence made a "not-insignificant" (or material) contribution to the injury.  In other words, it doesn't matter that the bad outcome was caused by a range of factors, provided one of them was the doctor/hospital/other health provider's negligent care.

I noted with interest similar reform efforts reported in NY in the US, where a move is being considered to bring the Law in line with other States, which require, apparently, a predominant (>50%) contribution to the injury or other bad outcome, from the negligent care.

Lets hope this trend isn't picked up in Australia.  Unlike NY, there is no evidence to suggest a need to curb litigation, particularly in the health services sector.  What is needed is clarity in the approach to complex cases, where science struggles with answering whether negligence has contributed to loss.

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It was interesting to read the Sunday Times newspaper's, front page article a week ago in relation to the unnamed obstetrician/ gynaecologist recently struck off from practise in Western Australia. 

I was particularly interested to read the newspapers' editorial column concerning their strong view that the ongoing suppression order, prohibiting publication of the particular Doctors details, was inappropriate. 

There is a clear public interest in the broader community being made aware of the identity of the relevant practitioner (or other doctors in such cases).  This has 2 primary aspects:

• an entitlement on the part of former and prospective patients to be aware of the conduct of this practitioner.
• as a strong deterrent against similar conduct by other health professionals (the “shame” factor) 

Clearly from the report there were 2 factors tempering this, in this particular case.  These no doubt lead to the relevant suppression order being made by Judge Chaney:

1. Firstly, it is clear that though doubts may exist concerning such opinions, there was evidence before the Tribunal that the relevant Doctor was psychiatric fragile and at some risk of suicide or self harm in the event that his name was published. 

As no doubt emphasised by his representative before the Tribunal, the potential for such harm if the suppression order was lifted would seem a very powerful consideration indeed.

2. Secondly, it is clearly the fact that the relevant Doctor is no longer practising in Western Australia or elsewhere in Australia. As such, there is no necessary concern for the Tribunal as to potential harm to future patients coming under his care. 

There is also some suggestion that former patients of the practitioner had been informed of the allegations brought which further ameliorates this consideration.  

In these circumstances, I can well understand Judge Chaney’s conclusions, unpopular though they may be. Certainly though, it would be hoped that once "risk" to the Doctor’s health has reduced, his details will be released.  

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