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

Having just completed a review of my firm's practice, coinciding with the end of financial year, an interesting observation - though perhaps predictable, is the types of claim which have grown in frequency.

Traditionally, for the last 10 + years, the most common types of claim I have acted in, relate to gynaecology and uro-gynaecology.  The single most common type of claim (by some margin) being complications associated with hysterectomy.

Interestingly, upon an informal audit, it is clear that for the first time these areas of medicine have become overshadowed by 2 emerging areas of practice.

The 2 most common areas of medicine in which the firm has recieved instructions in the last 12 months are:

1) bariatric surgery;

2) cosmetic breast surgery.

Interestingly, the bariatric surgery claims do not relate only to lap band surgery (though it is prevalent).  Similarly the breast surgery claims are not simply augmentation/implant surgery, but also include reductions etc.

One obvious common feature of the new leading areas of claim are that they both relate to what are often elective procedures.  They are also areas in which some 'entrepreneurial' medical practitioners are engaging in aggressive marketing to stimulate demand for their services.  As I may have commented previously, it will be interesting to see whether a different approach develops on the part of the Courts, when evaluating medical practice in these more nakedly 'profit driven' areas.

Certainly in my view (predictably you will say!), there is no good reason for doctors choosing to predominantly operate in such fields to receive any more protection/credit than other business' in the 'beauty' industry.  I anticipate (or hope) that stringent standards concerning disclosure of risks/side-effects will develop.

Stay tuned and we will see..

• Email This
• Print
• Comments
• Share Link

 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....

• Email This
• Print
• Comments
• Trackbacks
• Share Link

 I have recently read several District Court decisions, in which very firm adverse findings have been made against Plaintiffs.  

These outcomes and recent experiences on the hearing of a couple of appeals, when in my view, understandably, it was clear the Court of Appeal had difficulty appreciating the tone of evidence given at trial, lead me to think, why on earth aren't trials, particularly where clearly beforehand likely to turn on credit findings, videotaped as well as audio transcribed.

As every Plaintiff lawyer knows, it is extremely difficult to contest on appeal a trial judge's findings if based on credit conclusions.  Quite rightly, it is recognised that a trial judge has a substantial advantage over an appeal court, through seeing and hearing the witness' give evidence, rather than just having a transcript of the words said.  

The question is why should this advantage/disadvantage continue today, with modern technology?  Video recording facilities can now be found on mobile phones and software to track content, mark-up or bookmark such video is widely available at negligible costs.....

Quite apart from appellate review, wouldn't it be a great advantage for a trial judge to be able to go back to key passages of evidence when formulating reasons (or be taken to them by Counsel in the course of closing submissions)?

I for one think this is worth investigating further.  If I can, I will seek the court's permission to video transcribe the next trial we do, in which credit is likely to be important.  Let me know your thoughts..

• Email This
• Print
• Comments (1)
• Trackbacks
• Share Link

 As is a matter of public record, I act for Dr Philip Rowlands, an obstetrician and gynaecologist, in relation to the forthcoming Coroner's Inquest into the death of Ms McLevie at Osborne Park Hospital, in April 2006, 30 or so hours after she gave birth to a child at such hospital.  On any analysis a sad and tragic case.

In the course of preparing for such inquest, I came across an interesting recent case dealing with the Coroner's obligations and so called 'adverse findings,' made by him, the important issue of giving warning to persons before such findings are made against them and the capacity to challenge such findings (Re: the State Coroner ex parte Min for Health [2009] WASCA 165, delivered by the Court of Appeal (WA) 18 Sept 2009).

It is well known that in conducting his investigation, the coroner is not bound by the rules of evidence (section 41) and effectively has broad power as to the information (and sources of information) he considers and the use he makes of such information.

The case is a typically thorough summary of the coronial process, lead by Buss JA.  It is worth review by anyone involved in these inevitably tragic cases.

The end result was 'bitter sweet' for the relevant medical practitioner concerned in this case.  It is notable that such psychiatrist did not bring the appeal - this was brought by her employer, the Minister for Health.

On appeal it was established that the initial Supreme Court judge had erred, in concluding the relevant coroner's conclusions that 'with hindsight' the relevant psychiatrist, could have avoided the deceased's death via a community treatment order ("CTO") to ensure the deceased took his medication required to control his psychiatric state (and avoid psychotic episodes, such as lead to his death), were not adverse to such psychiatrist (ie the Court of Appeal accepted such comments were adverse to the psychiatrist and presumably her employer).

The Court of Appeal however concluded that the Coroner was entitled to make such finding on the evidence and no error was shown in such conclusion.  In other words, the adverse finding stands.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

 In this decision delivered by Judge Stevenson of the District Court on 23 December 2009, Judge Stevenson concluded that he had no power to extend the time for commencement of a claim under the 2005 Limitation Act, in relation to a child born prior to such Act's commencement.

The case, in which I am involved on behalf of the child Patrick, relates to alleged negligence on the part of King Edward Memorial Hospital in Patrick's mother's obstetric care in November 1996. Patrick suffers from cerebral palsy which it is alleged arose because of the shortcomings in care.  The allegations of shortcomings of care and that this caused Patrick's cerebral palsy are supported by compelling expert opinions from independent obstetricians, neonatologists, paediatric neurologists and otherwise.  Uncontested medical evidence put before the court spelt out Patrick's significant disability as a consequence of his cerebral palsy.

Prior to November 2005 the law in Western Australia provided that any medical negligence claim against a public hospital alleging negligent care causing birth injury had to be commenced, at the very latest (and this time limit required either the hospital's consent or permission from the court) by the time the child turned six years of age (section 47A Limitation Act 1935).  Such time-limit self evidently could result in gross unfairness and injustice, and for a substantial period of time has been the subject of criticism by judges, law reform bodies and others.  No equivalent applied to private hospitals or private patients in public hospitals (at least in so far as claim was brought against the private obstetrician), against whom the time limit was generally the child's 24th birthday.

In this case it was argued on behalf of Patrick that changes to the limitation laws which came into effect in November 2005 should permit the court a discretion to allow claim to be brought outside the six-year time limit, if warranted as a matter of justice.

As stated at the outset, Judge Stevenson, whilst expressing obvious disappointment at such conclusion, determined that this was not the case and in effect, the changes to the limitation period laws in 2005 were only of prospective effect and did not remedy the injustice arising for children born prior to November 2005 (when such laws came into effect).

An appeal has been commenced to seek the Court of Appeal's decision in relation to this important issue.

The situation specifically with regard to Patrick's case is complicated further by the fact that the failure to begin a claim within the six-year time limit required was caused by the hospital's failure prior to this deadline, to disclose a critical piece of evidence in relation to Patrick's delivery and his mother's obstetric care (the CTG trace relating to such labour).  As Judge Stevenson mentions in passing in his decision, apart from further accentuating the injustice of the six-year time limit, this potentially gives rise to complex legal issues in terms of the hospital's capacity to rely upon such six-year time limit as a defence to the claim.

What is assured is that Judge Stevenson's decision is by no means the end of this matter.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

As is well known, I act for Billy Wright, the 61 year old aboriginal man, who is the Plaintiff in a medical negligence claim against Broome Hospital in relation to medical care he received at such hospital in July 2004.

Billy's case arose from his attending such hospital with an acute onset of severe abdominal pain, which he identified when he awoke on 3 July 2004.  After being kept for observation for an hour or so, Billy was sent home.  He was taken back to hospital about 40 hours later by family and by this time was acutely unwell and at danger of not surviving, due to septic shock/sepsis.

Billy's claim proceeded to trial before Judge Fenbury of our District Court, with days of hearing in Broome and Perth late last year and early this year.

Pleasingly, Judge Fenbury found in Billy's favour, concluding the hospital had been negligent in its care of him and awarded him damages when he delivered his decision in late March 2009.  Judge Fenbury found that the hospital ought to have kept Billy for observation and further investigation and not sent him home when they did (see Wright -v- WA Country Health Service [2009] WADC 46) .

The hospital have appealed, though not in relation to the finding it was negligent, only as to Judge Fenbury's finding that such negligence caused harm to Billy, through progression of his illness while he was at home (though this point does not seem, with respect, to have been properly appreciated by Justice Newnes, see his summary of the appeal at [5] of the decision referred to below).

On 9 October 2009, argument occurred as to whether the hospital should pay Billy some or all of his compensation, pending hearing and determination of his appeal.

Billy had explained that he wished to utilise a part of the damages he has been awarded in order to purchase a "new" vehicle (estimated at a cost of $25,000) to transport his ill wife, who requires regular 3 times per week dialysis treatment, from their remote community home, to Derby, which is where such treatment is provided.

The well accepted rule is that generally a successful party should be entitled to be paid damages they are awarded, even if an appeal is lodged.  It is accepted that 'special circumstances' are needed to be shown for the unsuccessful party to avoid such obligation to make payment.

After hearing argument on 9 Oct 09 Justice Newnes determined that the hospital should not be obliged to make payment, until (unless) the appeal is decided against it (WA Country Health Service -v- Wright [2009] WASCA 177).  Despite the 'special circumstances' test being accepted by the hospital and Justice Newnes, he concluded that it should not be obliged to make payment, because if it did, there was some danger that it may not ultimately receive back such funds from Mr Wright or if it did, this may be over a period or involve inconvenience.

Interestingly, contrary to the submissions put before him, that recognised that if a discretion to grant a stay arose, this involved a question of the 'balance of convenience,' Justice Newnes described the test as tougher from Mr Wright's perspective.  He put it at one point as being whether not requiring payment would "impose unreasonable hardship" on the party who had won at trial (in this case, Billy) (see at [11])..

Ultimately Justice Newnes concluded (though there was no evidence before him to this effect) that there was likely to be a significant loss on a resale of the vehicle Billy intended to purchase and his modest financial circumstances were such that repayment of any balance would take a long time (see at [17]).  For this reason he refused to require the hospital to make payment of any monies at this time.

This is a very tough decision in my view.  In no way is the fact Billy is poor, a 'special circumstance.'  Many, many clients I have and do represent come from a poor socio-economic background.  That no obligation to pay arises in this case, suggests that nothing special is in fact required.  It seems, if Justice Newnes is right, that if a poorly off plaintiff succeeds at trial, a wealthy defendant (or its insurer) can avoid making any payment, if it appeals, until after such appeal is completed.  It can do this if it can show any chance that repayment of the money to be paid may be other than absolutely straightforward.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Recent media releases have publicised our State Administrative Tribunal's recent decision, granting Dr Michael McGushin, former Kalgoorlie surgeon, a career lifeline, despite finding that he was grossly careless in his care of several patients, 1 of whom at least, died as a result.

Judge Chaney accepted that McGushin's gross carelessness was not due to technical incompetence, but to his clinical decision-making and patient management.  

I doubt this is cause for great comfort.  I would have thought that clinical decision making and "patient management" (whatever this was intended to mean) are more intangible qualities and harder to learn/hone than technical skills.  

The case in which his patient died, concerned Dr McGushin's decision to operate on the patient to remove their gall bladder when he knew the patient was at increased risk of bleeding, yet he did not wait until a supply of platelets was available.  He did not examine the patient, review their notes or test results.  The patient bled during the operation and subsequently died.

I suppose Judge Chaney was convinced that with the ongoing supervision he has ordered, that this sort of risk-taking care will not recur.  This strikes me as very, very generous indeed.  Presumably Judge Chaney was persuaded by Dr McGushin's current 'mentor's' evidence as to improvements in his approach, while now working under supervision at 2 of Perth's leading public hospitals.

Our firm presently is handling 2 cases concerning Dr McGushin's surgical care, whilst practising in Kalgoorlie.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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 !

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Musing on a claim that I settled a week or so ago. The matter was settled within 45 minutes, via pre-trial settlement discussions at Court supervised mediation.  The claim concerned complications following a hysterectomy.

The allegations of negligence related to the gynaecologist's failure to discuss alternatives to hysterectomy for control of our client's pre-menopausal heavy periods.  

In the last couple of years, this has been our most common type of claim - hysterectomy remains a medical procedure with a relatively high frequency of serious complication.  These days there are a whole range of conservative alternatives to seek to treat heavy bleeding type symptoms for women. 

This is clearly a problem being grappled with internationally.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

 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.

• Email This
• Print
• Comments
• Trackbacks
• Share Link