Responsibility: The flip-side of Autonomy following Rogers

As those who know me will attest, I have always been an advocate for patient autonomy, and informed and involved decision-making by patients, aided (but not dictated) by their clinician. In other words, a fan of the Rogers v Whittaker sanctioned 'approach' to medicine following the High Court's decision.

Recently, with the growth of claims arising in the expanding elective/cosmetic medicine arena, the flip side of autonomy has been highlighted.

It is clear that with autonomy, there comes responsibility....

I have seen several cases of late that we have investigated, where on reflection it is clear that our clients were well informed as to their choices, but simply made 'foolish' decisions concerning their care and are now left with very poor outcomes/disfigurement.

Most obviously, breast augmentation surgery gone wrong, when no such surgery was sensibly justified, or lap band surgery for weight loss that could have been achievable by far less radical means.

In a former era of 'doctor knows best,' and medical paternalism, such patients would not have proceeded. The doctor would simply have said 'no.'

Whilst I do not advocate in any form a return to such era, this result is interesting. The High Court's recognition that the patient should be informed and make choices concerning their health care etc, also results in their having to accept responsibility for such choice (and consequences), if poorly made.... A result I had not foreseen... But.. you can't have it both ways. Either this is right and the patient must 'wear' the consequences of their poor choice, or we return to a process where their decision-making is in form only....


Medicine (and diagnosis) still 'first and foremost' for doctors + not the internet!!

Thanks to the Australian Lawyers Alliance's weekly newsletter to members, for bring this recent case to my attention:

Australian Associated Motor Insurers Ltd v Motor Accidents Authority of NSW [2010] NSWSC 833 (30 July 2010), is a recent case in which the NSW Court of Appeal per Barr AJ overturned a damages claim of more than $335,000 awarded to a woman injured in a traffic accident because he found that a claims assessor had used Wikipedia to determine that she had developed Complex Regional Pain Syndrome.  He also found that such diagnosis was not supported by medical opinion.

Although obviously a motor vehicle accident claim, this seemed to me worth mentioning in the med neg context, given the ever growing resources online for consumers/patients (+ it seems even judicial officers!) to learn more about health concerns.

While I for one use this phenomenal resource ever single day in the course of my work (and recently, in particular, the absolutely amazing array of youtube videos available of various medical procedures and conditions), it is always worth bearing in mind that it is a supplement for first hand expert medical advice + not its replacement.

I am reasonably frequently reminded of this when reviewing expert reports from medical specialists concerning claims we are investigating, who reasonably commonly conclude:

  • the issue as to the medical care my client and I were concerned about is a red herring or readily explainable, and not the result of any lack of care...
  • another issue we had not identified is present, the result of sub-standard care + the crux of why the poor outcome eventuated.

Supervision of junior medical staff - medical malpractice, medical negligence consequences

Trawling the net I came across a US study 2 months ago, led by University of California-San Diego researchers which reported a 10 percent increase nationally in medication errors that killed (!) patients during the month of July, the traditional start date for new residents.

One of my recurrent soap box topics is the lack of adequate systems to protect and avoid medical practitioners from making mistakes due to inexperience, inadvertence or otherwise. Obviously this is most important of all in relation to junior doctors.

If (as I suspect) Australia mirrors the US, even if at 1/10th the rate, this is a staggering statistic....

 

Vioxx Litigation - Mind Boggling Costs of Unsafe Drug (in money + lives) Mounts Up

Just saw some figures in relation to the Vioxx litigation in the US.  According to Bloomberg News, Merck + Co, the US manufacturer has now paid claims to the families of 3,468 users of Vioxx, who died of heart attacks or strokes, accepted as a result of the Vioxx medication.

Apparently a fund of $4.85 billion (US) has been established and made these payments.

It will be interesting to see the total costs of these claims in Australia, following our Federal Court's decision some months ago, finding the drug's importer to Australia was liable for breaches of the Trade Practices Act relating to the drug's fitness for purpose etc....  Strongly suspect these sorts of figures will never see the light of day...