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

 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.

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

 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.

• 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

 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.

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

 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.

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

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.

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