West Australian Medical Negligence Law Blog : West Australian Medical Negligence Lawyer & Attorney : Julian Johnson Law Firm : Medical Malpractice, Cerebral Palsy Litigation

 I admit that I am partisan, when it comes to comment upon cases that I have been involved in.  Read the following bearing this in mind.  As you will gather, they are not 'rose-coloured' glasses I see this through..

I have previously posted in relation to the case of Wright v WA Country Health Services (effectively Broome Hospital), in which I have acted for Billy Wright.

The final (now sad) chapter in this case came with the Court of Appeal's decision yesterday, upholding the hospital's appeal and dismissing Billy's claim.  

The Court's conclusion was that the evidence at trial did not justify the conclusion that Billy would have been better off, had his infection which lead to his initial attendance at the hospital, been treated at such hospital, rather than his being at home.

The result left by this decision is as follows, in terms of the facts of the case:

1) Billy was negligently treated by hospital staff when he attended Broome Hospital's A+E department, following the onset of severe abdominal pain.  He should not (as he was) have been discharged after being kept for observation for an hour or so, when he continued to experience significant pain, the cause for which had not been identified.

The hospital did not appeal against this conclusion by the trial judge (it could not).

2) Had Billy been kept at the hospital (as he should), within an hour or so, it would have been identified that his condition was deteriorating.  He developed rigors and probably at such point had a temperature, indicative of infection.  Presumably, had this been identified, tests would have been done to identify the cause for this infection and (initially broad spectrum) antibiotics would have been commenced.

Again the hospital did not (and could) appeal against this conclusion.

3) Billy's condition deteriorated over the following 30+ hours, such that when his family took him back to Broome Hospital, he was in critical condition and at risk of dying.

The hospital did not appeal this, because Billy's condition when he re-attended the  hospital is self-evident from the records.

All of the above seems reasonable. The 'catch' comes at the next step....

4) The bug responsible for Billy's illness was never identified.  Blood cultures and x-rays taken after he returned to the hospital confirmed his critical illness but not its cause.  This is not remarkable.  Evidence at trial was that this can commonly occur.  Further, perfectly understandably given they were trying to save his life, staff at Broome Hospital had given Billy large doses of IV antibiotics when he returned to Broome Hospital, which it was accepted could explain why the bugs responsible for his infection were not identifiable.

Here is the killer step....

5) Because such bug could not be identified, the hospital's insurer argued (and this was accepted by the Court of Appeal) that it could not be proven that Billy would necessarily have been better off had he been kept at the hospital under observation, rather than being discharged, at his initial visit.  In other words, despite the fact they ought to have seen his progressing symptoms, if they had done the right thing and kept him at hospital, the view taken is that it could not be proven that any treatment at the hospital would have been effective and would have made any difference to his condition, compared with its development while he lay in bed at home.

Quite apart from the difficulty of this outcome as a matter of common sense (in my humble opinion) such conclusion also ignores the fact that uncertainty as to the identity of the responsible bug was at least contributed to by the hospital's negligence in the first place.  Had they done what they should have, kept Billy for observation and identified his deterioration within an hour or so, it seems to me that the relevant bug must have been a good chance of being identified by blood test etc at that time or at least, the further information as to Billy's progressive symptoms that would have been available would have assisted in identifying the most likely cause.  The problem of proving the type of bug present was directly a consequence of the hospital's negligence.

Despite my putting this last point to the Court of Appeal during argument - that this link between the hospital's negligence and any uncertainty as the bug's identity should tend towards a conclusion in BIlly's favour, the reasons for the Court's decision are silent on the point.

All in all a bitter outcome for my client and I.  My client, understandably in my view, has difficulty accepting the Law's reasoning as achieving a just result....

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In a case which in some respects seemed more like a John Grisham novel than a serious piece of Australian litigation, as well publicised, on 5 March 2010 Justice Jessup of the Federal Court found in favour of Graham Peterson (and in relevant respects, in favour of the other members of his representative class) in his case against Merck Sharpe and Dohme, the Australian manufacturer of the anti-inflammatory drug Vioxx.

Mr Peterson had suffered from back pain for many years prior to being prescribed Vioxx by his GP, Dr Dickman in May 2001.  He found, as did many other patients, that Vioxx provided relief from his pain without the adverse gastro-intestinal side effects which were encountered with other drugs providing similar pain relief.  

In December 2003 whilst still continuing to regularly take Vioxx, Mr Peterson suffered a serious heart attack for which he received prompt and effective medical treatment leading to his making an uncomplicated medical recovery.  At the time this heart attack occurred neither he nor his GP or the cardiac team considered that his heart attack was related to his consumption of Vioxx.  This all changed following the withdrawal of Vioxx from the market in September 2004 and subsequent revelations as to its potential side-effect.

Interestingly, the basis upon which Justice Jessup found in favour of Mr Peterson was in many ways the least contentious.

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The High Court has now heard argument concerning this important (potentially ground breaking) decision and we are now in the Court's hands, for their decision.

The transcript of argument can be found here.  Although reading the transcript is not the same as hearing 1st hand, it seems Bret Walker SC had a torrid time, at least from some members of the Court!  

Interestingly, and this is close to a common concern in medical negligence claims, emphasis was placed by him on the capacity of the negligent party to know the information from which firmer conclusions about whether "A caused B" could be drawn.  It is often the case in medical negligence claims that when it is difficult to prove whether negligent medical care caused a particular bad outcome, that frustration is felt that the answer to such question would be known with certainty - if only the negligent care hadn't occurred (eg if the negligent failure to diagnose the breast cancer hadn't occur, we would have known whether there was or was not lymph node spread etc).

It seems to me that at least the more outspoken members of the Court during argument, expressed considerable scepticism at the approach of our Court of Appeal, in accepting that the Plaintiff's exposure to asbestos had contributed to his lung cancer, even though at least some evidence suggested it was 100 times more likely his cancer was a consequence of his smoking.

It also looks to me that the Court may be contemplating narrowing the traditional degree of contribution from negligent (or other tortious) conduct to an injury, for liability to arise.  

Traditionally, enough was shown if negligent action made a "material" contribution, which has often been accepted as met, when the contribution was more than negligible.  

in other words, if the Court accepted there were multiple causes for injury or illness, damages would be awarded if one of such causes was due to negligence (even if it was a minor or secondary cause - and even if it was likely the injury/illness may have occurred even if no such negligence occurred).  Further (and this has always been the difficult part to this, for me conceptually!), liability would then be for the entire consequences of the illness.  There would often not be a substantial reduction in the damages awarded, for the chances the same outcome would have occurred, even if the negligence had not occurred.

From my reading, several members of the Court were grappling, during argument, as to whether for a contribution to be 'material,' and so liability and damages follow, a greater extent of contribution should be required.

It will be interesting to see how the dynamics of argument translate into the Court's decision.

As a footnote, have to say I liked Justice Gummow's comment, when the submission was put that deciding whether a factor was or was not a cause of disease, was a matter of 'logic,' that:

"Logic itself is a house of many mansions"

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Entirely as expected, the High Court on Friday granted special leave for the appeal in the recent NSW Court of Appeal decision in Gett -v- Tabett.

The High Court will now, sometime in 2010, decide whether damages should be recoverable for a loss of a chance of a better outcome from medical treatment, where such lost chance (lost due to negligent medical care) is < 50%.  

See my earlier post for more details of the NSW Court of Appeal's decision on this point, which created conflict between NSW and Victorian Law and uncertainty for the rest of the country.

With this issue and the complex causation issues that will be considered by the Court in October in Amaca/Ellis, the High Court will have an opportunity to set the legal position with wide ramifications for those involved in the medical negligence area of litigation across Australia.

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Further to an earlier post, the New South Wales Court of Appeal has recently delivered its decision concerning the appeal in relation to Ms O’Gorman’s delay in diagnosis of breast cancer claim.

Tragically in the period between the initial decision in her favour and this appeal, Ms O’Gorman died from her metastatic breast cancer.   As a consequence the appeal was contested by her Estate.
The Area Health Service responsible for BreastScreen New South Wales, the Sydney South-West Area Health Service succeeded in its appeal and the Court of Appeal have ordered a re-trial on the issue of negligence.

The primary reason for the Appeal being upheld and a re-trial being ordered was the Court of Appeal’s view that the trial judge had been wrong to refuse to allow the two radiologists involved in assessing Ms O’Gorman’s original breast images to give evidence as to whether they had taken reasonable care in examining her breast images.

This is a not uncommon situation. A defendant seeks to bolster its case by reinforcing its “independent” expert witnesses’ opinions by the views of the particular doctors concerned. I have had first hand experience of this in several cases at and approaching trial in the last two or three years.

Consistent with the New South Wales Court of Appeal’s decision, the generally accepted position is that such evidence cannot be put forward unless its substance has been disclosed an appropriate period prior to trial (as with any other expert’s opinion).  By this means the parties are given an appropriate opportunity to consider such opinion, its foundation and prepare cross examination etc.

Subject to this requirement, such expert evidence can generally be put forward, albeit (and this point was acknowledged by the New South Wales Court of Appeal), there will always be issues as to the weight to be attached to such opinion given the witnesses' lack of impartiality.

More interestingly in a general sense, the Court of Appeal in this case made some interesting observations in relation to causation questions.

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 One rumour I have heard suggests that the High Court will be asked in Amaca and Ellis to review the degree of causation needed for negligent action to be taken to have caused loss.  These critical cases are due to be heard by the Court, later this year, probably in October.

At present (and for as long as I have been in practice), it is sufficient if the negligence made a "not-insignificant" (or material) contribution to the injury.  In other words, it doesn't matter that the bad outcome was caused by a range of factors, provided one of them was the doctor/hospital/other health provider's negligent care.

I noted with interest similar reform efforts reported in NY in the US, where a move is being considered to bring the Law in line with other States, which require, apparently, a predominant (>50%) contribution to the injury or other bad outcome, from the negligent care.

Lets hope this trend isn't picked up in Australia.  Unlike NY, there is no evidence to suggest a need to curb litigation, particularly in the health services sector.  What is needed is clarity in the approach to complex cases, where science struggles with answering whether negligence has contributed to loss.

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I was interested to read recent news reports concerning a case decided in Canada. An Indian/Canadian man, Mr Kahlong was awarded CAD $5 million in a claim against a Hospital in Vancouver.

According to news reports, Mr Kahlong who was 41 years of age suffered from low back pain for which he was referred for a CT scan. The CT scan demonstrated some abnormalities and the radiologist asked Mr Kahlong to return for a follow up scan. Mr Kahlong failed to heed this advice believing for some reason that his pain would go away on its own. In actual fact Mr Kahlong was suffering from spinal tuberculosis which was a progressive condition, ultimately resulting in profound cognitive impairment and disability.

The British Columbian Supreme Court found the Hospital at which the radiologist was working to have been negligent. They found he should have, but did not, promptly provide a written report upon the initial abnormal CT scan. The Court decided that had such report been prepared (and presumably provided to the treating practitioner etc.) it would have lead to a chain of enquiry which would have resulted in diagnosis of Mr Kahlong's condition.

The Court decided (understandably) that Mr Kahlong was also negligent by failing to follow the radiologist’s advice to return (known as contributory negligence).

The consequence of deciding there was contributory negligence is that the patient’s damages are reduced by the percentage by which his own negligence is decided to have contributed to his injury. In Mr Kahlong’s case, he was decided to be 30% at fault and so he lost 30% of his compensation.

I have to say that this seems from the news report, to have been a very generous decision from Mr Kahlong’s perspective. My expectation would be that if such a case was presented before our Courts, it would be far more likely the case would have failed entirely. I think it likely our Court would conclude that it was the patient’s negligence in failing to follow the radiologist’s advice that led to the non-diagnosis.

Alternatively, I would have expected a significantly greater percentage of negligence to be found on the part of the patient.

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I recently gave some thought (amongst other things, I had to, I had agreed to present a paper on the topic...),  as to what this recent Court of Appeal decision in New South Wales is going to mean in the medium term for claims in Western Australia.  It seems likely the period before the High Court gets its say, will be another 12 - 18 months.

In Gett, in brief, the New South Wales Court of Appeal decided that even when a Dr or hospital is found to have been negligent, damages could not be awarded in that State for loss of a chance of a better outcome from more appropriate medical treatment when the chances of this occurring were less than 50%.  In other words, if a Dr is negligent, and this may have worsened the outcome for the patient, damages can only be awarded if this chance of a better outcome (if the Dr or hospital had not been negligent) is > 50%.

In Gett, the chance of an improved outcome was put as 15%.  Because of the Court of Appeal's decision, the patient was found entitled to no compensation at all, despite the fact the medical care was accepted as having been negligent (and their resulting disability was very severe).

The decision was based upon a careful and thorough analysis of past case law, from which the Court concluded that such damages should not be awarded, according to established doctrine.

Gett's decision is contrary to the previously accepted position in New South Wales and is contrary to the position in Victoria.  It now creates uncertainty as to whether Western Australian (and the other) State Courts should follow the New South Wales or Victorian position.  

As stated, this position will ultimately be determined by the High Court of Australia's decision on the topic (it is almost certain that it will now have to look at the issue, given the divergence between the States' Courts).

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