Hammond -v- Heath - claim fails (again) on appeal

Posted on February 22, 2010 by Julian Johnson

 The year has not got off to a good start for Plaintiffs in medical negligence claims in our Court of Appeal. In Hammond v Heath [2010] WASCA 6, the Court of Appeal on 19 January 2010 dismissed Mr Hammond’s appeal against the District Court Judge’s finding, rejecting his medical negligence claim against Dr Heath and Dr Heath’s employer, the Minister for Health (as operator of Joondalup Health Campus).

The case concerned hernia surgery.

The Appeal challenged the District Court’s Judge's decisions rejecting Mr Heath’s claim, firstly, that Dr Heath ought to have warned Mr Hammond of risks associated with allowing mesh to remain in situ following surgery that had been performed in May 2001. 

The Court of Appeal led by Chief Justice Martin rejected this ground on the basis that as the Commissioner had found, there was no evidence that at the time, and in the circumstances, allowing the mesh to remain in place would reasonably have been thought to pose any appreciable adverse risk to Mr Hammond [17].

The next attack upon the District Court Judge’s decision was in relation to the finding that Dr Heath was not negligent in failing to remove the relevant mesh on 28 August 2001.

The difficulty (which proved insurmountable) for the Appellant on this ground was the fact that Dr Heath had given uncontradicted evidence as to his reasons for not doing so on this date and particularly that he wishes to minimise surgical intervention as much as possible given Mr Hammond’s general poor health. Dr Heath was not at Trial cross-examined about this decision or its rationale and no expert evidence was put forward by any other surgeon suggesting that his reasoning was unreasonable.

The appeal was therefore dismissed.

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Duty owed by rehabilitation provider to injured worker

Posted on February 14, 2010 by Julian Johnson

 

In a recent District Court decision by Judge Davis, an interesting issue as to the obligations owed by a rehabilitation provider to an injured worker were explored. 

The Decision, Lines v Workfocus Australia Pty Ltd [2009] WADC 203, delivered on 23 December 2009 confirmed, though it appears this may have been something conceded by the Defendant, that a rehabilitation firm owed a duty to the relevant worker, Mr Lines, to exercise reasonable care and skill in the provision of their vocational rehabilitation services to that worker.  The case arose in the context of a return to work program, during which Mr Lines had apparently aggravated his initial work injury.

For my part, there has always been some controversy concerning the rehabilitation providers’ obligations to the worker given the potential for conflict between the interests of the worker and the party meeting the costs of such rehabilitation, the insurer.  

Although this issue was not identified by Judge Davis, her finding that a duty of care was owed to the relevant worker implicitly supports a view that any such conflict must be resolved to the benefit of the worker.  Judge Davis articulated the obligations owed by a rehab provider to the worker, relevant to design of a return to work programme as:

I consider that the precautions which a reasonable person in Workfocus' position would take against the risk of a worker suffering a further back injury while on a return to work program would be to:

1. Consult with the worker's doctor about the worker's injury, the medical diagnosis, the prognosis, any restrictions on the workers' physical abilities and any recommendations which that doctor had to assist the worker to return to work.

2. Obtain the approval of the workers' doctor to all stages of the return to work program.

3. Advise the worker that if he has any increase in symptoms, that he let his supervisor know, and also notify the vocational rehabilitation provider so that the provider can both amend the return to work program and follow up with the worker's doctor

The most interesting observation that can be made, is that on this test, the worker's own doctor (presumably their GP) has enormous importance and effectively, unless they are prepared to approve of a program, a rehab provider cannot insist upon the worker's participation.

Judge Davis, found that all of these matters had been observed by the provider.

The decision has been appealed against by Mr Lines.

 

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