Does a Doctor have a duty to inform of Disciplinary Action/Restrictions?

Posted on October 29, 2010 by Julian Johnson

 Working this afternoon on a claim for a client who suffered serious complications as a consequence of gynae surgery, performed by a surgeon who has recently (and previously) been the subject of disciplinary action by the (now defunct) State Medical Board.

The interesting question that arises, following my client learning of such disciplinary action which preceded her contact with the surgeon, is whether the surgeon was obliged to inform her of such action and the then restrictions upon his surgical services. These did not directly apply to the form of surgery she was contemplating, but nonetheless, understandably, she says that she would have liked very much to know of such restrictions and had she, would not have had the surgery performed by the surgeon in question (you can no doubt imagine the less neutral manner in which she expressed this...).
 
In my view, though I suspect all but universally ignored, a duty should arise for a doctor in such circumstances to inform their patient of such action + resulting restrictions.  Rogers v Whittaker defines the health professional's duty as one to communicate the information "a reasonable person in the patient's position would be likely to attach significance to" (the objective test) or which the doctor should suspect the particular patient would attach significance to (the subjective test).
 
In my view a compelling case can be argued that any serious disciplinary sanctions against a doctor or restrictions on the range of services they may offer, is something a patient is likely to attach significance to (an understatement..), in deciding whether to proceed with proposed surgery.
 
Interestingly, such a position is supported by one of the 'old' Phil Hardcastle cases, Nunn v Hardcastle, in which Deane DCJ found that the surgeon ought to have informed the patient of the fact a moratorium had been imposed in relation to the particular operation at St John of God Hospital, so the surgery was performed at an alternate hospital
 
Let me know if you have a view one way or another on this issue - which is obviously related to the equally thorny issue of whether medical practitioners should disclose their relative complication rates etc, compared to their colleagues in a given filed (lap choli's being a well known example).
Tags: , , , , , ,

National Health Professionals Regulation

Posted on October 29, 2010 by Julian Johnson
A couple of weeks ago I attended a CPD presentation dealing with the new scheme for National Registration + Regulation of the majority of the health professions. It is beyond doubt that this is a good idea, in terms of consistency of practice registration. One interesting aspect of the reforms that I was not previously aware of, and which I see as having potentially interesting longer term consequences, is the 'new' National body's capacity to set standards for medical and other practice. It occurs to me that this could develop into a challenge/supplement to the College's self-regulation of the specialties. It could for example, allow regulation as to those surgeon's permitted to perform cosmetic breast surgery, bariatric surgery etc + set minimum standards of experience and training for such areas of work. Another alternative may be to set standards in terms of disclosure of surgical results/complication/infection rates etc. Given the College's understandable competing interests (and those of their members), this may present a valuable opportunity for consumer interests to be given voice.
Tags: , , , , , , , ,

Delay in diagnosis of Cancer: Compensation post Gett

Posted on October 8, 2010 by Julian Johnson

One of the most emotionally demanding, complex and ultimately, often rewarding categories of case handled by medical negligence lawyers, are those cases arising from a negligent delay in diagnosis of cancer. At any one time, I am generally acting in 4 or 5 such cases.

Following the High Court's decision earlier this year, in Tabet v Gett [2010] HCA 12, uncertainty has been expressed, particularly by those representing medical defence organisations, as to the recovery of compensation in such cases.

I thought it interesting to conduct a 'straw poll' of lawyers (and others) reading my blog, as to whether they think recovery will be possible, in the following categories of case, following Tabet.

As can be seen, the categories depend on the assumed expert opinions as to the likely effect of the relevant delay in relation to the client/patient's outlook. I think these categories cover the ambit of such claims commonly seen. In each category it is assumed that there has been negligent care and this has caused the delay in diagnosis and treatment of the cancer - for argument's sake, lets assume a 12 month delay. As can be seen, I have sub-divided the categories into 2 categories, being those in which recurrence/spread of cancer has occurred v those in which it has not (but potentially may do).

The categories are:

Where Recurrence of Cancer Has Occurred and it is likely the Client will not survive

In the first 3 scenarios, recurrence has occurred and the client/patient is likely to die from their cancer. In this group, the 3 scenarios are:

  1. where it is likely (more than 50% probability) that if diagnosis had occurred at the time it should, the cancer would have been successfully treated and the recurrence/spread would have been avoided.
  2. Where it is less than a 50% chance that earlier diagnosis, when it should have occurred, would have led to successful treatment and avoidance of the recurrence/spread. In such category there is nonetheless an appreciable chance (though less than 50%) that appropriately timed diagnosis and care would have altered the tragic outlook.
  3. the same scenario as (2), but were the chance of successful treatment and a different outcome, had appropriately timed diagnosis and care occurred, is only very small (<5%).

Where No Recurrence of Cancer has Occurred

In these 3 categories, no recurrence has occurred yet. In this group, the 3 scenarios are:

  1. where it is a better than 50% chance that recurrence will occur in the future (say within 5 years). It is also likely that if diagnosis had occurred at the time it should, the cancer would have been successfully treated and the risk of recurrence/spread would have been very much less (and < 50%).
  2. Where it is less than a 50% chance that recurrence will occur in the future, but this chance is greater than it would have been, if diagnosis had occurred at the time it should, and such difference in likelihood is significant (say 25%).
  3. the same as scenario (2), but the difference in likelihood of recurrence is small (say < 5%), in other words, the effect of the delay in diagnosis and treatment has been a slightly increased chance that cancer will recur in the future (though the overall chance remains < 50%).

It will come as no surprise that I think recovery should occur in all such categories, though obviously its quantification will vary greatly depending on the category:

Let me know your views on whether damages can be recovered in each of these 6 scenarios, anonymously if you like. I will (assuming I get a reasonable number of replies!), post a blog entry summarising the consensus of views expressed.


Tags: , , , , , , , ,