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

Working yesterday and today on a very tragic case for the family of a young women who died after weight-loss surgery, in 2007.

The women underwent a sleeve gastrectomy, one of the 2 most common forms of weight-loss (or bariatric) surgery, performed in Australia today.

While working on the case, I thought it worth sharing the advice we have recieved in recent cases, as to both the success + the risks associated with these 2 most common forms of surgery. Don't hesitate to contact me if you disagree with these figures, which are taken from expert advice from a very experienced bariatric surgeon we have asked to consider such cases:

LAP BAND SURGERY
This is the most common procedure. Completed over 11,000 times in Australia per annum.

average effectiveness: 50% of the excess weight carried by the patient (on average patients lose 1/2 the weight they wish to). Effectiveness does vary significantly.

risks: 0.1 - 0.5% of major complication risk. So 1 in every 200 patients to 1 in every 1,000 patients will experience this. From simple maths, each year, 11 - 55 patients will suffer such major complications in Australia from this procedure. 1 in 2,000 risk of death: so 5 - 6 patients per year will die from lap band surgery.

SLEEVE GASTRECTOMY
average effectiveness: 70% of the excess weight carried by the patient (on average, patients lose 70% of the weight they wish to: this is obviously an advantage of such surgery over lap banding).

risks: 2 - 5% major complication risk. Risk of major complication therefore up to 50 times higher than with lap band. Most common major complication, as in our case, is anastomotic leak (leak from the staple line where the 'new' stomach edge is sewn up). Mortality rate is 1 in 500-600. So about 4 times higher chance of death.

Comment

Interesting features of this are, in my view:

• the fact such surgery, if successful, should be accepted as only assisting with weight loss. It will not on its own be a 'quick fix' to obesity issues. With lap bands, the morbidly obese will remain obese even if such surgery is effective.
• the lap band is safer but less effective than a sleeve gastrectomy.
• patients undergoing such surgery need to appreciate and be comfortable with taking the risks, including a clear risk of death associated with such surgery. This should be particularly borne in mind, when such bariatric surgery is for cosmetic reasons, rather than genuinely medically driven. For someone to undergo such surgery, with the aim of becoming 'thinner,' and then lose their life through such process is tragic, and yet from the above such risk is clear + should be recognised and considered by the patient, before they agree to proceed.

 

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 I came across an interesting point today, while working on a tragic case arising from the death of a relatively young women, who's son suffers from (and prior to her death suffered from) a serious mental illness.

Following the women's death (which we allege was caused by negligent medical care), claim is made on behalf of the son for loss of the financial + non-financial support + services his mother would have provided, had she not died.  

These services range from assistance with medication through to transportation and reminders to change clothing etc.  They are now provided in part by his father.  In part he now does not receive such services.

in claims in Western Australia (and most States) compensation for provision of services provided free of charge (gratuitous) is limited by reason of the Civil Liability Act (section 12).  The interesting point is that such section does not appear to apply to compensation of the type sought in this claim.  

The claim is not for damages for services needed and provided because of an 'injury' my client has suffered.  Rather, this claim is for loss of services that would have been provided to him, had his mother survived.  The need for these services does not arise from her death.  It predates this.

Anyway, just a tip to anyone handling these Fatal Accidents claims, of this 'wrinkle' in the assessment of damages in such inevitably tragic claims.

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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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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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 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.

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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.

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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.

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Unlike the historic position, Plaintiffs' (patients) who have claims proceed to trial in medical negligence claims in WA, cannot generally recover what is known as indemnity costs, if they win and are awarded more by way of damages than they had earlier offered to accept in settlement of their claim.

The consequence of this, is that from a costs perspective, there is no advantage in a Plaintiff (patient) making a settlement offer before trial and particularly, there is no real incentive to put an 'acid test' offer. If the Plaintiff (patient) wins their trial and beats any offer made by the Defendant (the hospital/medical practitioner etc), they will generally recover the same costs, whether they beat their earlier offer or not.

The flip-side is that from the Defendant's perspective, rejecting an offer and proceeding to trial does not generally worsen their position, if the Plaintiff wins.

The situation that commonly follows is that a Plaintiff succeeding at trial will have a significant part of their legal costs they will need to pay for their own representation, not covered by the costs paid by the Defendant hospital, medical practitioner etc, even in this situation where they had been prepared to take less to settle.

In my opinion this is a lost opportunity to further encourage settlement in such claims.

The capacity for an order requiring a 'losing' Defendant to pay the overwhelming majority of legal costs for the Plaintiff if the claim proceeds to trial (which is what happens when 'indemnity' rather than 'contribution' costs are required to be paid), and the Plaintiff wins more than they (the patient) had been prepared to settle for is:

• much fairer to the Plaintiff,
• perhaps more importantly on a practical day to day basis, a very significant practical incentive for Defendants to do their very best to settle claims and to 'sweat' when a 1/2 decent compromise offer is made by the patient.

I understand amendments to our Court Rules are in train, which will re-introduce this discretion for a Trial Judge. It can't come too soon.....

For a recent example in NSW where such indemnity costs were ordered and our 'old' approach continues, see Paul Harris v Dr Michael Bellemore (No 3) [2010] NSWSC 907, delivered on 3 August 2010.

While it is a 'wild guess,' had no indemnity costs order been made in such case, my guess is the difference in legal costs the patient Mr Harris would have had to pay for his claim, not covered by the Defendant, would have increased by > $100,000.00.

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For the last decade or so, 'plain english' has been a buzz word for lawyers and other professionals.

One of the areas I have always thought we (lawyers) have failed to deliver is in the area of client retainers / costs agreements with our clients. For understandable, if flawed reasons, these have always seemed to me to be incredibly cumbersome and convoluted documents, covering every conceivable eventuality (and a few others..)

Like many law firms we have traditionally used an agreement based upon a Law Society form recommended and published 10 years or so ago. It certainly caters for every contingency, but at a high cost in terms of readability.

I just came across a neat bit of software, very '2001: A Space Odyssey' called 'Flesh' which for free will evaluate the readibility of a given document and assign a score.

Needless to say, my fee agreement did not do well.... Any Nobel laureates looking for a medical negligence lawyer, I've got an agreement for you, but otherwise...

So it's back to the drawing board, to come up with something that spells out the key points of client engagement, is easy to understand and in under 2 pages.

After all, my relationship with a client has to be based on trust. If I don't trust you (or you don't trust me)' why am I involved in the claim again?

Heresy I know...

Colleagues, give it a try. It's free. If anyone's fee agreement shines under the 'Flesh' test, let me know your secret..

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As those who know me will attest, I have always been an advocate for patient autonomy, and informed and involved decision-making by patients, aided (but not dictated) by their clinician. In other words, a fan of the Rogers v Whittaker sanctioned 'approach' to medicine following the High Court's decision.

Recently, with the growth of claims arising in the expanding elective/cosmetic medicine arena, the flip side of autonomy has been highlighted.

It is clear that with autonomy, there comes responsibility....

I have seen several cases of late that we have investigated, where on reflection it is clear that our clients were well informed as to their choices, but simply made 'foolish' decisions concerning their care and are now left with very poor outcomes/disfigurement.

Most obviously, breast augmentation surgery gone wrong, when no such surgery was sensibly justified, or lap band surgery for weight loss that could have been achievable by far less radical means.

In a former era of 'doctor knows best,' and medical paternalism, such patients would not have proceeded. The doctor would simply have said 'no.'

Whilst I do not advocate in any form a return to such era, this result is interesting. The High Court's recognition that the patient should be informed and make choices concerning their health care etc, also results in their having to accept responsibility for such choice (and consequences), if poorly made.... A result I had not foreseen... But.. you can't have it both ways. Either this is right and the patient must 'wear' the consequences of their poor choice, or we return to a process where their decision-making is in form only....

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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..

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 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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 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..

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 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.

 

 

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 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.

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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.

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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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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.

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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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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.

 

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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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