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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