What makes a Good Settlement = more than just $

Posted on February 23, 2011 by Julian Johnson

An interesting recent case has illustrated (again) that the merits of a settlement, can often involve more than just a question of the overall total settlement sum agreed to be paid.

Upon settlement of medical negligence (and other personal injury) claims, there are a series of standard potential deductions from our client's total settlement figure, which must always be borne in mind (and appropriately calculated or estimated ahead of time if possible). These include:

1) medical expenses for extra treatment due to the negligent medical care. Refunds will often be required to Medicare + any private health insurer (Medibank Private etc). Calculation of such recovery figure(s) can be very uncertain and complex.

2) Centrelink. If benefits have been claimed because of incapacity due to the negligent medical care, refund will often be required. Importantly, depending on the circumstances and particularly the scale of the settlement, there may often also be an effect on future receipt of benefits.

The recent case I have handled, illustrated another consequence, applicable at least in Western Australia. This is the fact that if the client is sufficiently disabled as to have qualified for public housing assistance, a strict means test applies in relation to eligibility for such assistance. In most cases, this is about $50 - 100,000.00 in assets.

In my case my client, who had suffered disability following a sub-arachnoid haemorrhage, was in receipt of such housing assistance for her family.

In the circumstances of her case, it was not in her view (understandably) in her best interests to receive a settlement in the order of $250 - $500,000 because this would render her ineligible for ongoing housing assistance and require that she vacate the family home. She therefore was prepared to accept a settlement offered by the insurer which would result in a net payment to her of just under $100,000.00 because she felt better off receiving this lesser sum and maintaining her home eligibility, rather than seeking a higher figure, but then being required to seek alternate accomodation.

As I say, a timely reminder that the total damages paid in a settlement in some cases is not the measure of how beneficial it is. The settlement's impact upon receipt of government benefits should be carefully assessed, if clients are to be best served by their advisors/representatives.

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The Radiologist + GP: Communication with the Patient

Posted on February 7, 2011 by Julian Johnson

I recently came across an interesting article in a medical insurance journal, discussing the responsibilities of a radiologist to ensure communication of important x-ray or other radiology test results.  The conclusion of the article was that the radiologist has responsibility for prompt first-hand communication with the referring GP, but the article stopped short of suggesting a need for the radiologist to inform the actual patient of their test result.  

The patient is obviously the radiologist's patient, as well as the GP's.  The patient (or his insurer) pays for the radiologist's services and a duty to take care is owed by the specialist to the patient.  Why then no obligation to tell the patient of the result of their investigation?

This is an issue I have had cause to consider recently, in the context of a delay in diagnosis of breast cancer case.  In that case a radiologist's report indicating likely breast cancer was not acted upon by the GP practice (it appears the report went astray + was not followed up), leading to a delay of several months before the patient, re-attending the GP practice, raised the issue of the earlier test, resulting in (a very unhappy) realisation of the oversight.  

Claim was brought against the GP practice + was indefensible.  It did however occur to me that quite apart from liability in a medical negligence claim context, the whole problem could have been avoided, had the radiologist conveyed the findings of the scan to the patient.  

I have seen several cases in the past in which recommendations for further investigation were made by radiologists in their reports, yet not passed on by the patient's GP to the GP.  

Quite apart from having an obvious opportunity to advise and explain concerning test results, it occurs to me that often such specialist radiologists may be in a better position to put the test results in context and recommend further forms of investigation if warranted (FNA, core biopsy etc), than the GP referrer.

It is accepted that in cases like this, it is important that 'bad news' is conveyed in an appropriate setting + with appropriate supports.  Nonetheless, it is not easy to see why no responsibility for communication to the patient seems to be accepted as arising on the part of this form of specialist (or other similar areas, pathology etc).

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