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

Long awaited reform finally arrived this year with introduction of the Medical Practitioners Act 2008 (WA).  This was much needed and welcomed, replacing the antiquated and outdated previous legislation, the Medical Act 1894.

The system for registration of practitioners and importantly, in the context in which I practice, the handling of complaints and disciplinary issues for the medical profession in Western Australia has been overhauled and significantly improved.

As with many legislative reforms, the new scheme appears however to have a perhaps unexpected, unfortunate adverse consequence in terms of the continuation of practice/provision of service by older retired or semi-retired doctors.

This week I was informed that a retired anaesthetist living in Kalbarri (for those of you who don't know, a beautiful seaside holiday town north of Perth) will because of the new legislation be unable to provide relief/locum services when the town's GP is unavailable, for example on no doubt much needed annual holidays.  Such relief has been provided for the last few years, ensuring continuity of service to the community.   The position now seems that when the town's GP is away, the town will have no doctor and presumably residents will need to travel to the nearest town for medical care etc (and some significant distance in this respect).

More seriously perhaps, such retired anaesthetist is the only medical practitioner in Kalbarri able to perform an intubation in the event this is required (as in the event of a major traffic accident or boating collision etc).  The GP apparently does not have this skill.  Because of the stricter registration requirements under the new legislation, such anaesthetist is probably no longer able to lawfully perform this service, even in an emergency situation.

This situation seems absurd, particularly as we approach school holidays in the West, when it is likely the local population will swell considerably.  

Whilst it is understandable that those persons able to perform medical services needs to be closely regulated, the "cost" of losing the remaining skills of experienced retired or semi-retired practitioners seems unnecessary and potentially harmful, particularly in areas outside the metropolitan area where attracted and providing such services is already very difficult indeed.

Something for further thought and refinement I suspect.

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 Although not a medical negligence claim, the recent decision by Judge O'Brien in Jenkin -v- Brook [2009] WADC 140, delivered on 9 September 2009, provides interesting reading as a recent factual example and summary of the assessment of damages in a claim where negligence causes death.

In this case Judge O'Brien accepted the plaintiff, who was the grand-daughter of a women killed in a motor vehicle accident, was entitled to make claim for the 'value' of lost services her grandmother would have provided to her.

Importantly, as Judge O'Brien (with respect) correctly identified, the claim could be made, regardless of whether there was a "need" for the services that would have been provided by the grandmother.

Sadly, the claimant suffered from severe global developmental delay.  She also has physical impairments.  She had a special bond with her grandmother, who provided extensive support and as Judge O'Brien found, would have continued to do so, had she not died.

Judge O'Brien recognising that the valuation of such services was not necessarily to be limited to their commercial value (given such services 'value' was not simply its replacement cost by a professional carer etc).  However because no other rate was put forward by the parties, Judge O'Brien accepted such commercial rate should be used in this particular instance ($35/hour).

Total damages were awarded in the sum of $340,000.00.

Even though not a medical negligence case, the principles of assessing potential quantum in the event a family member dies, who providing services but not financial support, illustrated by this case are equally applicable in medical negligence cases.  As the case demonstrates, the commonly held view that if wages were not earnt and contributed by a deceased, no claim of substance can be brought, is wrong.  

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Further to an earlier post, a further recent skirmish in the matter of Pollard v Endale Pty Ltd is of note. 

This latest instalment concerning this dispute between Ms Pollard and the operators of Mount Lawley’s Private Hospital, is a decision by Judge Davis on 28 August 2009 (Pollard v Endale Pty Ltd [2009] WADC 135).  

This decision related to an application by Ms Pollard for an adjournment of the trial in the matter, due to proceed on 7 September 2009. The application was dismissed and from my review of the Court list, it appears this has lead to a resolution of the matter, one way or another (I suspect, not on terms the Plaintiff would be happy with).

The interesting issue arising concerning this application is that this is one of the first occasions in which our District Court has considered the recent High Court decision in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27.  

This recent decision by the High Court has been met with concern by lawyers handling claims in the medical negligence and other personal injury areas, because it appears (and this seems supported by Judge Davis’ interpretation) to toughen Courts' stance to delays or requests for indulgence.  

Somewhat against the 'accepted position' following the High Court’s previous well known decision in JL Holdings, which emphasised the ultimate goal for Courts of ensuring justice between the parties, such decision emphasised potential prejudice to the quality of justice where there is unnecessary delay in Court proceedings.  It also emphasised as a “public interest” consideration of the efficient use of Courts, as factors against allowing a late adjournment of Trial.

Judge Davis’ decision reinforces the impression already arising following the High Court’s decision in Aon Risk Services, that it will now be harder for Plaintiffs (and for that matter Defendants) to obtain adjournments of Trial or other indulgences, if they are likely to delay or extend a Trial and the Court’s commitment of resources to it. 

It appears those seeking a 'late' adjournment, extension of time or amendment now (more than ever) better be well prepared and can expect close scrutiny of the reasons for such issues arising late in the piece.       

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Entirely as expected, the High Court on Friday granted special leave for the appeal in the recent NSW Court of Appeal decision in Gett -v- Tabett.

The High Court will now, sometime in 2010, decide whether damages should be recoverable for a loss of a chance of a better outcome from medical treatment, where such lost chance (lost due to negligent medical care) is < 50%.  

See my earlier post for more details of the NSW Court of Appeal's decision on this point, which created conflict between NSW and Victorian Law and uncertainty for the rest of the country.

With this issue and the complex causation issues that will be considered by the Court in October in Amaca/Ellis, the High Court will have an opportunity to set the legal position with wide ramifications for those involved in the medical negligence area of litigation across Australia.

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Further to an earlier post, the New South Wales Court of Appeal has recently delivered its decision concerning the appeal in relation to Ms O’Gorman’s delay in diagnosis of breast cancer claim.

Tragically in the period between the initial decision in her favour and this appeal, Ms O’Gorman died from her metastatic breast cancer.   As a consequence the appeal was contested by her Estate.
The Area Health Service responsible for BreastScreen New South Wales, the Sydney South-West Area Health Service succeeded in its appeal and the Court of Appeal have ordered a re-trial on the issue of negligence.

The primary reason for the Appeal being upheld and a re-trial being ordered was the Court of Appeal’s view that the trial judge had been wrong to refuse to allow the two radiologists involved in assessing Ms O’Gorman’s original breast images to give evidence as to whether they had taken reasonable care in examining her breast images.

This is a not uncommon situation. A defendant seeks to bolster its case by reinforcing its “independent” expert witnesses’ opinions by the views of the particular doctors concerned. I have had first hand experience of this in several cases at and approaching trial in the last two or three years.

Consistent with the New South Wales Court of Appeal’s decision, the generally accepted position is that such evidence cannot be put forward unless its substance has been disclosed an appropriate period prior to trial (as with any other expert’s opinion).  By this means the parties are given an appropriate opportunity to consider such opinion, its foundation and prepare cross examination etc.

Subject to this requirement, such expert evidence can generally be put forward, albeit (and this point was acknowledged by the New South Wales Court of Appeal), there will always be issues as to the weight to be attached to such opinion given the witnesses' lack of impartiality.

More interestingly in a general sense, the Court of Appeal in this case made some interesting observations in relation to causation questions.

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