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

 I like many have watched with horror and fascination the waste that was the end of Penelope Dingle's life.  Amongst it all, Cameron Platell, by reputation a quiet and careful surgeon, stood out for me, when explaining on 720, his frustration that his advice was being ignored, as he assured Ms Dingle of the favourable outcome expected with surgery he recommended but she would not have.

The case raises important and difficult questions about the role of our society in protecting its members from their own abject foolishness and influence.  Self-determination is great, as long as informed and based on sense...  

Importantly this is not an isolated example.  Only weeks ago we all heard of the ill-informed and sinister exploitation of the vulnerable by a West Australian psychotherapist on Sarah Ferguson's excellent 4 Corners expose.

In these days, with every more stringent (or so it feels) regulation of our traditional professions, how can these 'fringe' health disciplines continue unregulated?  I suspect Coroner Hope will have something to say on the topic.

On a lighter note, if there can be one, see below - as my UK relatives would say 'nuf said'

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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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Happy NY to those reading!  Feel free to let me know if you have any thoughts on content since I started the blog, suggestions how to improve the blog or requests for topics or comment.

As the title says, thought it apt to start the new year on a positive note...

My wife has for sometime suffered from a sore shoulder (no doubt in part from carrying the heavy load of being married to me...!)  Anyway, she finally got around to having it investigated following which it was identified she had rotator cuff tear and bursitis, requiring repair and acromioplasty.  Off she then went to see the best shoulder orthopod we could find.

Anyway, pleased to report that said orthopod, in addition to technical proficiency in the way the repair is to be performed, also demonstrated exemplary communication skills in his contact with my wife.  My wife returned from her pre-operative appointment with a formidable looking folder which contained a wonderful, easy to read explanation of the surgery, the risks associated with it and a very easy to follow guide to post-operative rehab.  

I couldn't fault it and am starting the new year with the attitude that the medicine I generally encounter in practice represents the exception rather than the rule and despite the odd dark moment, my almost continuous belief that the overwhelming majority of Drs are fabulously skilled, hard-working professionals, is the right one.  Lets see if and how 2010 shakes this!

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 While trawling around looking for some information on trauma surgery, came accross this neat and convenient summary of our public hospital system's performance against several key performance indicators for the 1st 6 months of 2009. 

Makes interesting reading, particularly the ongoing 'battle' with accident and emergency services.  

I particularly noted the pretty awful results concerning times to see accident and emergency patients assessed with triage ratings 2 onwards (72%, 62%, 72% of patients in such categories being seen within the recommended timeframe).  

The report doesn't say what the average time for seeing such patients was, but presumably there are some such patients not seen for well and truly more than the recommended review timeframes.

No doubt some of such patients suffered prejudice to their positions due to such delay in being seen, investigated and treated.  Given the scale of demand for accident and emergency services it seems likely to remain a fertile ground for medical negligence claims, while this performance remains well behind the Australian College's recommendations.

A continuing battle for our public health system.

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Again, slightly off topic, though the broader consequences apply in a healthcare context.

Read with interest the Editorial in the Weekend Australian yesterday about the High Court's recent decision, with the less than informative name, C.A.L. No 14 Pty Ltd v Motor Accidents Insurance Board [2009] HCA 47.

The facts in the case were simple:

1. the case concerned a claim of negligence against a Tasmanian hotel owner who handed back motorcycle keys lodged for safe-keeping to an insistent, belligerent patron who on leaving the pub was killed in a crash while showing a blood alcohol level of 0.253.
2. A reading of 0.05 doubles the risk of a crash. At 0.08, the risk increases seven times. At 0.15, it is 25 times higher. Data was too scant to reliably calculate the risk at the level taken by the dead man.
3. The man had drunk seven or eight cans of bourbon and cola between 5.15pm and 8.30pm. According to the judgment, the licensee told him he had had enough, that it was time to go home, and asked for his wife's phone number so that she could fetch him. The patron became agitated and said "If I want you to ring my f'ing' wife, I'd f'ing ask ya." The Licensee responded: "Whoo hang on, whoo, whoo, whoo, this is not, you know, don't go crook at me, this is not the arrangement that was made." Not having the wife's phone number, and not wanting to push the issue into further confrontation the licensee then gave the keys to the patron, after asking him three times if he was OK to drive
   
   

As has been widely reported (to the joy of many in the hotels industry), the High Court dismissed the claim against the publican, finding that no duty was owed to the driver that had been breached.

I accept the points made in the Australian, concerning the need for our society to accept individual choices and responsibilities.

On the other hand, when regard is had to the carnage each year on the roads due to alcohol, such 'individual responsibility" is hardly a promising or pro-active step to saving our bright young things from self-destruction on the road.  

Quite apart from the case of habitual heavy drinkers, who has not had opportunity to intervene when friends and loved ones might out of character have had a bit much to drink and required a tap on the shoulder and gentle insistence on a lift home?  It is a consequence of intoxication that it impairs judgement, not just behind the wheel but in getting behind the wheel in the first place.

The Court's decision seems to ignore the more complex issues behind public safety and the 'cost' of irresponsible alcohol sale, instead championing a self-determinant right to self-destruction (and potentially harm to innocent third parties on the road).

With respect there is much to be said of the comments in the Age, concerning this decision, which reach a very different conclusion to the Editorial in the Weekend Australian.

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 All due credit to our West Australian Minister for Health, Kim Hames, for his apology today to the family of the 17 year old who tragically died at Albany Hospital, and who's death was recently the subject of a scathing report/finding by our coroner.

Always hard to know, but the sound bite I heard sounded entirely genuine and his response is to be applauded 'in spades.'

Anyone who has worked in medical litigation for persons pursuing claim, can tell how on almost every instance, clients are motivated by more than monetary compensation and almost invariably speak of the need for someone to take responsibility, to be accountable and as importantly, to ensure that steps will be taken to ensure it does not occur to the next unfortunate patient.

As I say, all credit to Minister Hames.  I am sure his gesture will aid the family's path, following this tragedy.

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Long awaited reform finally arrived this year with introduction of the Medical Practitioners Act 2008 (WA).  This was much needed and welcomed, replacing the antiquated and outdated previous legislation, the Medical Act 1894.

The system for registration of practitioners and importantly, in the context in which I practice, the handling of complaints and disciplinary issues for the medical profession in Western Australia has been overhauled and significantly improved.

As with many legislative reforms, the new scheme appears however to have a perhaps unexpected, unfortunate adverse consequence in terms of the continuation of practice/provision of service by older retired or semi-retired doctors.

This week I was informed that a retired anaesthetist living in Kalbarri (for those of you who don't know, a beautiful seaside holiday town north of Perth) will because of the new legislation be unable to provide relief/locum services when the town's GP is unavailable, for example on no doubt much needed annual holidays.  Such relief has been provided for the last few years, ensuring continuity of service to the community.   The position now seems that when the town's GP is away, the town will have no doctor and presumably residents will need to travel to the nearest town for medical care etc (and some significant distance in this respect).

More seriously perhaps, such retired anaesthetist is the only medical practitioner in Kalbarri able to perform an intubation in the event this is required (as in the event of a major traffic accident or boating collision etc).  The GP apparently does not have this skill.  Because of the stricter registration requirements under the new legislation, such anaesthetist is probably no longer able to lawfully perform this service, even in an emergency situation.

This situation seems absurd, particularly as we approach school holidays in the West, when it is likely the local population will swell considerably.  

Whilst it is understandable that those persons able to perform medical services needs to be closely regulated, the "cost" of losing the remaining skills of experienced retired or semi-retired practitioners seems unnecessary and potentially harmful, particularly in areas outside the metropolitan area where attracted and providing such services is already very difficult indeed.

Something for further thought and refinement I suspect.

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 I have often been asked at presentations I have given for health professionals, what is the single step they can take which will reduce their chances of facing a claim of medical negligence.  

My answer has been the same for 10 + years.  

It is surprising how many clients I see, who apart from concern at financial consequences of the poor outcome they have experienced from medical care, are driven by a sense that there has been a refusal to accept responsibility.  This is often why client's say their claims are a matter of principle.    Further it is remarkable how many clients appear motivated by a desire that the same outcome not be experienced by 'the next patient.'

Given this, in my view, apart from taking reasonable care in the medical advice and care provided, the best thing a health care professional or hospital can do, is ensure there is a clear, frank and honest dialogue when the adverse event occurs.  It would I am sure surprise some health professionals, how much a patient will 'shrug off' if they believe an honest mistake has occurred, that the person involves accepts responsibility and that there will be concerted efforts to ensure it does not recur.  This is even more so, in circumstances where the adverse outcome has not been a result of any lack of care.

With this in mind, I was very interested indeed to read this in a recent Wall St Journal article.  This is the 1st statistical measure I have seen of the effect of adoption of an 'open disclosure' policy and is entirely consistent with my anecdotal experience.  Given the results, I would have thought health care bodies and their insurers would be very interested indeed in further investigation of 'claims management' on the ground.  Given our Civil Liability Act's protection for apologies, this is even more so the case in West Australia.

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 The power of the blog!  I get to write about the remarkable Ms Palin, who I suspect would get on like a house on fire with our own Pauline H.

Anyway, came across this amusing response post concerning Ms Palin's recent ruminations on tort reform in the US, published (well self-published) via the ubiquitous facebook, which I though worth sharing.

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Reasonably often, clients consult us following the death of a loved one, resulting from apparent negligent medical care.

I have spoken to a potential new client this week, traumatised by the tragic death of their child as a consequence of what seems from the client's account to be clearly negligent care on the part of a GP (who failed to take any action despite complaints that the child had vision disturbance and excruciating headaches for weeks prior to their death).

In Australia, in such circumstances, claim can be brought by the surviving parent/child/relative, but 'only' for the psychological injury suffered by them.  No claim can be brought for the suffering and death per se of the victim of the negligent care.  This is different from the US, though some strange rules appear to apply there (for example see here).

Sadly, the most common situation in which I have seen such claims, concerns negligent obstetric care, leading to the death during childbirth (or in utero) of the baby.  In such claims, the parents' entitlement to compensation for the loss of their child, if it can be shown that the obstetric care was negligent, is limited to compensation for their psychological or psychiatric suffering.  No claim exists for the loss of the child in itself.  No claim can be made for the loss of an opportunity for life by such child.

Further, no claim can be brought at all if all the parents suffer is "normal grief" (whatever this may mean!) falling short of amounting to a psychologically or psychiatrically diagnosable condition.  This is an entirely illogical (and utterly absurd in practice) restriction upon those who can claim.  It is justified on (dodgy) policy grounds of limiting the scope of people able to bring claim.

Clients are often dismayed to hear of these restrictions (as was my client this week), which mean that where death of a child results from negligent care, in most cases, entitlements to compensation will be modest.  For now (and there is no sign of any inclination for the courts to expand the scope or extent of liability at present), unfortunately these limits will however continue to apply, whether fair, just or not.

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 Have been following (loosely) recent discussion in the US concerning health care reform.  

As usual, a self-interested group, have sought to tag 'tort reform' (I've always thought a neat term for the removal of rights from the negligently injured, not sure it is 'reform' rather than 'remove') on the agenda.  

Twitter (yes, I know...) is alive with endless calls for reform to stop the 'lottery malpractice' verdicts and greedy lawyers.

Came across this very interesting article, summarising the real evidence as to costs of medical malpractice in the US (often characterised as the most litigious country for such claims).  

All of the comparable evidence in Australia that I am aware of, points in the same direction.  The 'crisis' is with the quality of health care provided, rather than the very small minority of those who could pursue compensation claims, that actually do so.

Have to say I'm with Bill, Hillary and Barrack on this one.

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I read with some interest a recent decision by Judge Sleight in Pollard v Endale Pty Ltd [2009] WADC 97. The decision concerned an application by an injured patient seeking that Mount Lawley Private Hospital, the hospital at which their care was provided, should be obliged to disclose documentation relating to its accreditation with the Australian Council of Health Care Standards ("ACHCS").

Such accreditation is a voluntary process.  To be accredited a hospital must agree to maintain various standards, in terms of adverse event monitoring and avoidance.

Intriguingly in such claim, criticisms were made of the private hospital for failing to adequately show care and skill in its assessment of medical practitioners, before giving them rights to admit and treat patients at the Hospital, to monitor their performance thereafter and to ensure the Hospital's facilities were utilised competently.

Judge Sleight ordered that the Hospital produce documentation passing between the private Hospital and ACHCS in relation to its accreditation application.

The case is intriguing because it has long been known that particularly the better run private hospitals compile and have access to enormous volumes of data concerning the performance of surgeons and other clinicians practicing at their hospital. Notoriously such things as complications rates and their type and cause are captured and readily available, though never released to potential claimants (or prospective patients).

Pursuing allegations of the unusual type apparent in this case may be a useful way of obtaining access to this information, otherwise jealously protected by the hospital's operators. Quite apart from having an additional ground for criticisms of Hospitals, no doubt very useful information may be obtained to support claim against the primary surgeon/ clinician responsible for the treatment which led to the poor outcome    

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It was interesting to read the Sunday Times newspaper's, front page article a week ago in relation to the unnamed obstetrician/ gynaecologist recently struck off from practise in Western Australia. 

I was particularly interested to read the newspapers' editorial column concerning their strong view that the ongoing suppression order, prohibiting publication of the particular Doctors details, was inappropriate. 

There is a clear public interest in the broader community being made aware of the identity of the relevant practitioner (or other doctors in such cases).  This has 2 primary aspects:

• an entitlement on the part of former and prospective patients to be aware of the conduct of this practitioner.
• as a strong deterrent against similar conduct by other health professionals (the “shame” factor) 

Clearly from the report there were 2 factors tempering this, in this particular case.  These no doubt lead to the relevant suppression order being made by Judge Chaney:

1. Firstly, it is clear that though doubts may exist concerning such opinions, there was evidence before the Tribunal that the relevant Doctor was psychiatric fragile and at some risk of suicide or self harm in the event that his name was published. 

As no doubt emphasised by his representative before the Tribunal, the potential for such harm if the suppression order was lifted would seem a very powerful consideration indeed.

2. Secondly, it is clearly the fact that the relevant Doctor is no longer practising in Western Australia or elsewhere in Australia. As such, there is no necessary concern for the Tribunal as to potential harm to future patients coming under his care. 

There is also some suggestion that former patients of the practitioner had been informed of the allegations brought which further ameliorates this consideration.  

In these circumstances, I can well understand Judge Chaney’s conclusions, unpopular though they may be. Certainly though, it would be hoped that once "risk" to the Doctor’s health has reduced, his details will be released.  

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We are presently acting for a young women who paid $1,000s for cosmetic breast surgery in a well known Asian holiday destination, only for a terrible outcome.

This idea of "cosmetic surgery-tourism" seems on the increase, which I think is worrying.  My concerns are reinforced given the independent plastic surgeon's advice we have now received concerning the standard of advice and surgery our client received in this case.

Not that I am an expert, but anyone contemplating this sort of combination of a holiday and cosmetic surgery, should seek a local surgeon's advice.  Based on this case, it is not a comparison between apples and apples (unless one of them is rotten!) and any potential costs savings need to be carefully considered !

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 We have for some time been investigating a potential claim for a young women in her 20s with a fair complexion who underwent IPL for freckles on her face, including eyelids. Our client suffered quite severe iris damage as a consequence of the treatment.  It seems the IPL damaged the pigment in her iris, leading to an asymmetrical appearance.

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Just noting the Federal Government's budget move approving prescribing rights for nurse practitioners.

No doubt some serious 'turf' wars and posturing to come, between the AMA, the major corporate GP practice operators and the entrepreneurial elements of the nursing profession.  

It will be interested to see how the standard of care issues arising from this pan out.  How will the standard of care to be expected of such practitioners be set? If less than the standard for a GP, how is this lower standard to be communicated to patients? How readily is such a practitioner to be expected to refer to a GP (given likely issues with referral rights to specialists or for expensive investigations {MRI etc))?

Yet another interesting aspect of the times we live in, and the ever changing dynamics of modern health care delivery

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