Makaroff v Nepean Blue Mountains Local Health District is a recent NSWCA medical negligence decision.

Most of the decision involves a re-examination and somewhat surprisingly, a different conclusion as to liability on the part of the health service, with the CoA finding in the patient’s favour (by a 2:1 majority).   The majority found that hospital staff should have but had not impressed upon Ms Makaroff the need for her to seek orthopaedic advice about her shoulder injury with reasonable urgency.

The case is an interesting example of how, when causation depends on a series of steps having been taken to avoid harm, the plaintiff must prove that on a balance of probabilities all such steps would have occurred.  In this case, whether all of the steps that would have followed advice to urgently seek orthopaedic advice about her shoulder injury, leading to surgery before irreversible harm occurred.  Each step may be reasonably simple to prove on a balance of probabilities, but the combined chances of failing at one or other step may make this a significant obstacle.

Whilst the NSW peer defence provision (section 50 and 5P) is different from WA’s section 5PB, there are 2 interesting observations by Simpson JA, neither of which were concluded, given they were not necessary to found the decision or had not been addressed at trial.

The 2 issues of interest for WA lawyers in the area are:

  1. Identification of the odd limits, by the terms of section 5PB(2), to the obligation to warn about risks associated with proposed treatment;
  2. Whether a health service, as distinct from an individual doctor, can rely on compliance with a ‘widely accepted practice’ to defend claim.

In relation to the first, Justice Simpson noted the terms of section 5P did not sit comfortably with it applying to disclosure of a need for urgent orthopaedic treatment.  As such, subject to the 2nd point, if it was widely accepted not to express urgency, this may be an answer to such claim, even if otherwise unreasonable.

He made clear the issue remained live for further consideration in subsequent cases (see at [235] and [236]). He noted Basten JA in Ambulance Service of NSW v Worley [2006] NSWCA 102, suggested that ss 5O and 5P were intended to “maintain the dichotomy suggested in Rogers between a breach of a duty to give a warning or other information, and other forms of professional negligence.”

This is a recurrent and important issue.  The obligation on a health professional to provide information about treatment options and health issues extends far beyond disclosing risks of treatment.  For instance, to provide information about health risks of no treatment or other important information about a particular illness, including as to prognosis.  It is illogical if section 5PB means that peer accepted practice is not relevant to the first, but is relevant (potentially determinative) to the latter.

In relation to the latter point, this is an issue I raised in Lazarevski v NMHS and as in that case, Justice Simpson noted that the definition of a ‘person practising a profession‘ did not seem to extend to a health service (in Lazarevski, the North Metro Health Service was not, in my view, a ‘health professional‘ – as required for section 5PB to apply).  This is important, if anomalous.  The non-delegable duty owed by a health service may therefore require a different standard than that required of the health professionals it employs.  The latter may avoid liability if acting in accordance with widely accepted practice, whilst the former would not avoid liability if nonetheless the care was not reasonable.  It is accepted the circumstances in which this will make a difference of significance may be rare.

Those acting for injured claimants over the last decade will have noticed significant “creep” in our Civil Liability Act’s threshold and deductible in relation to personal injury claims.

It occurs to me that absent any suggestion at the time this legislation (including provision for indexation increases) was introduced, of any intent for an escalating scheme of deductions, it must be assumed that the specified indexation was expected to be in line with an expected increase in the amount of compensation to be awarded for any given injury for pain, suffering, disability and lost enjoyment of life (non-pecuniary loss (NPL)).

When the legislation was first introduced in November 2002, Amount A was $12,000.00. From 1 July 2019, it is $22,000.00. This is an increase of 83%. It follows, in my view that if a sum of $30,000.00 was considered appropriate for a given injury in 2002, the appropriate allowance for such head of damage today is $55,000.00.

We often refer to previous decisions as a guide to an appropriate allowance for NPL. When doing so, this adjustment should be made.

Food for thought and submission…

An interesting recent development with the potential to increase the damages for which negligent health professionals (and so their medical indemnity insurers and medical defence organisations) will be liable, is the apparently growing trend by our WA public hospitals of classifying patients as “compensable.”  This then permits (or at least it is claimed to permit) the hospital/health department to charge commercial rates for the provision of its medical services.

There is considerable mystery as to how the relevant rates for services are determined.  An intriguing question is whether they involve some element of “profit” over and above the actual cost to the hospital for the provision of the relevant service.  This is opaque when it should be transparent.

A recent example involving a dental negligence case in which treatment costs included in the claim related to such care were claimed by the hospital to exceed $80,000.  My rough guess is that had the relevant services been provided through the public system and so paid for by Medicare, such costs may have been $5-$10,000 only.  By this measure, the medical defence organisation responsible for the relevant dentist, faced a liability ‘increased’ by $70,000.  This roughly doubled the value of the claim.

As noted, this has the potential to increase the costs of claims for insurers/MDO’s in this space.  In serious-injury (eg birth injury) claims, in which substantial future treatment is likely, this may be a very significant increase indeed.

Further, one possible consequence of this is that if the negligent party is in fact a public hospital, the hospital may “benefit” financially from their lack of care through their capacity to charge commercial rates for the provision of the medical treatment only required because of their initial negligence.  This seems wrong on many levels.

Ellis v East Metro Health Service [2018] WADC 91

I read with interest the latest instalment in Judge Gething’s decisions in relation to this contentious birth injury case.  The substantive decision in the plaintiff’s favour is working its way at present to the Court of Appeal.  It will be interesting to see what our CoA makes of the matter and whether some of the more uncertain issues concerning the CLA are clarified.

In this latest decision, Judge Gething dismissed an application by the defendant to amend its defence following judgement.  In essence, the amendment sought to withdraw from an apparent ‘agreement’ in relation to various heads of damage.  Uniquely in my experience, agreement in relation to such heads of damage was given effect by amendments to the statement of claim pleading specific sums for non-pecuniary loss, etc, with admissions of such sums in the defence.

As may have only been appreciated late in the course of the trial, this would cause ‘difficulty’ in the event the trial judge found in the plaintiff’s favour but did not accept the plaintiff’s injuries and disability were all caused by the criticised aspects of management of the infant’s birth.  In other words, an intermediate outcome, between the plaintiff and defendant’s best cases.

It has to be said it is surprising if this was not appreciated earlier, given ‘causation’ was a primary ground for the defence of the claim.  The defendant hospital’s primary case was that the neonatal observations and especially the neuroradiology were inconsistent with a late-labour hypoxic injury as the cause for the plaintiff’s evident disability.

The plaintiff relied upon the ‘face’ of the admissions on the pleadings to assert that if the injuries, in whole or part, were found to have been caused by negligent care, the entirety of the agreed sums should be awarded.  Despite the fact appearances suggest this, it seems very unlikely this was the intended effect of the agreement by the defendant.

As things stand, the point is moot, because Judge Gething in his primary decision found the injuries alleged were indeed ‘all’ caused by negligent care.  This is however squarely the subject matter of the appeal and no doubt the defendant hopes such conclusions will be overturned. 

This will potentially create an awkward result if the pleadings cannot be amended, with, from one side’s perspective at least, a potential “windfall” for the plaintiff.

The decision raises the important practical question of how parties should seek to narrow quantum issues in medical negligence claims.  As here, there is often difficulty in agreeing quantum per se, given the common scope for causation issues and variable conclusions as to the nature and extent of negligently caused loss (as well as issues concerning contingency discounts, etc).

With careful thought, planning and unambiguous execution, narrowing the issues with potentially significant time and costs savings, should still be possible.  Unfortunately, this decision will not encourage defendants and their insurers in this respect.

In the decision Espinos v Popovic published by Judge Braddock on 8 August 2018, the run of successes by plaintiffs in  medical negligence claims continued.  Her Honour awarded damages to Mr Espinos in his claim against deceased neurosurgeon, Emile Popovic, in the sum of $4,817,311.

These are very high damages for a claim for negligent care surrounding a spinal fusion operation for a 55-year-old self-employed man, who, it was conceded, was appropriately advised to undergo a fusion at L5/S1.

The case provides an interesting and helpful summary of technical aspects of performing low back spinal fusion surgery, a common source of complaint and medical negligence claim.

Her Honour was obviously impressed with evidence given by local neurosurgeon, Andrew Miles, concerning appropriate technique intraoperatively and concerning the recurrent issue of malpositioned pedicle screws.

The case is a bitter reminder of the harm that can be caused by malpositioning of such a screw, even for a relatively short period of time.  In this case, it was ‘only’ 9 days before Dr Popovic repositioned the relevant S1 level screw.  Nonetheless, during such 9 days, it caused damage to Mr Espinos’ nerve causing permanent debilitating right leg pain which persisted even after such screw was repositioned.

The unhappy story for Dr Popovic was made worse by the fact that his initial surgery mistakenly fused the L4/5 level and stabilised the L3 level above.  This was performed despite it being clear the plan, and Mr Espinos’ consent, had been to a fusion at L5/S1.  Not surprisingly, it was admitted that Dr Popovic was negligent in operating at the incorrect level.  It was however denied that such initial surgery had contributed to Mr Espinos’ long-term poor outcome.

The most interesting aspect of the case from my perspective was Dr Miles’ evidence concerning the measures that should be taken intraoperatively and post operatively to avoid a malpositioned pedicle screw.

Her Honour rejected the commonly run argument that malpositioning of a screw is an accepted complication of such surgery and can occur even in the best of hands.  This was rejected because it was accepted that incorrect positioning could occur, but should be appreciated and rectified intraoperatively, particularly given the availability of modern 3D imaging in theatre at the relevant hospital (the Mount) and in any event, very shortly thereafter via appropriate post-operative imaging. 

This goes further than most cases – in which an initial failure to appreciate a malpositioned screw has been accepted as an unfortunate, but not negligent error.

In relation to Dr Miles’ evidence, see, for example, his clear explanation at paragraph 91 concerning the cause for damage to the relevant nerve if a screw is malpositioned in the nerve canal.  Further, in relation to the appropriate intraoperative steps to avoid a malpositioned pedicle screw, see at paragraphs 96 – 99.  He stated: “it is fairly obvious if a screw is badly malpositioned on intraoperative imaging, particularly 3D intraoperative imaging.“

In relation to the benefits from intraoperative imaging, the defence neurosurgeon Mr Rogers, quoted at paragraph 128, accepted that the risk of screw malpositioning using traditional intraoperative image guidance varied from 1.6% to 6.4%.  He accepted with that with intraoperative CT imaging the result should be a return to theatre of 0%.

Also importantly, Dr Miles’ view, which Her Honour accepted, was that it was not sufficient, as the defence claimed, for a neurosurgeon to rely upon the assessment of post-operative imaging by the radiologist.  Such radiologist had not reported the malpositioning of the S1 pedicle screw, despite it being clear.

The surgeon was obligated to review the imaging first-hand and to make their own assessment and conclusions concerning the relevant screw’s positioning, et cetera.

Interestingly, it seems no contribution claim had been brought by Dr Popovic against the relevant radiologist for their failure to report the malpositioned L5/S1 pedicle screw.  The absence of such a claim perhaps indicated an acceptance of the attitude expressed by Dr Miles, that a neurosurgeon has primary responsibility to review the relevant imaging in any event, and it was a poor excuse to assert the radiologist’s failure to mention malpositioning had caused a failure to act more quickly.

Nonetheless, given Her Honour’s finding, a contribution would probably have been found against the radiologist, had such claim been made (because had they reported accurately, this would have ‘caught’ Dr Popovic’s error of either not reviewing or in missing the malpositioned screw).

All in all, a favourable decision from the patient’s perspective + confirmation this type of neurosurgical adverse outcome are (and should be) hard to defend.

I recently attended the AvMA conference in the UK.  AvMA is one of the UK’s peak bodies in medical negligence (or clinical negligence as they call it), law.

I would recommend the conference to anyone working in this area on the patient side.  Although there are inevitable differences, there is considerable overlap and perhaps warning in some aspects, as to where we may head.

Ironically, while our Civil Liability legislation continues to cause confusion about the role and meaning of peer practice standards (hopefully addressed by the High Court soon, noting Sparks v Hobson‘s special leave application is soon to be heard), the UK has moved away from peer standards (Bolam) in relation to advice/explanation obligations, following its leading case of Montgomery.  This essentially adopts our Rogers v Whitaker approach to advice/warning cases.  Understandably, a reasonable chunk of the conference was grappling with this change.

The conference was an excellent blend of legal v medical talks.

Amongst the excellent medical presentations, I enjoyed a talk by a bariatric (metabolic) surgeon who seemed generally surprised when I discussed with him following his talk, the range of candidates now undergoing bariatric surgery in Australia for ‘lifestyle’ reasons.

As his talk well demonstrated, there are compelling population-based advantages of bariatric surgery in those with significant comorbidities, particularly diabetes. The “bad rap” this form of surgery has in Australia, at least amongst lawyers, is in this sense unfair. There are great public health benefits from such surgery, provided the appropriate patient population are selected.  This is a big proviso…

Interestingly, he indicated that pre-surgery psychological workup, an essential part of appropriate practice in the UK, filtered out approximately 20% of candidates as unsuitable for such form of surgery.  I would be interested to know whether this is similar to the rate in Australia..  My impression (no more than this) is that this very rarely leads to rejection of an offer of surgery.

It is an old saying that a picture is worth a thousand words.

In the last week or so I have been reminded of this and the forensic usefulness of the modern era of smartphones and particularly phone cameras.

In the last week, on 2 entirely separate substantial claims we are investigating, smartphone-based photographs provide compelling evidence as to the condition of the relevant patients, not otherwise evident from the relevant medical records.

In the first case, the photographs taken by the parents of their newborn, including video footage, clearly demonstrates the child suffering seizures during the 1st and 2nd days of life, wrongly discounted as unconcerning “twitches” by the midwifery staff at the relevant country hospital.

In the 2nd, unrelated case, photographs taken by our client’s wife whilst he was a patient at hospital clearly demonstrate the patient’s appearance and grossly disturbed mental state, unrecognised and undocumented in the hospital records. He subsequently suffered a fall while unsupervised (falls remain, as they have been for 20+ years, the most common cause for potential medical negligence claims!).

In both of these cases, this recorded evidence (time and date stamped) may well be the difference between a claim being possible or not.

Traditionally, many, many cases could not be pursued because even though a patient’s claims would justify it, the relevant features were not noted in the medical records and because of the weight likely to be attached to the contemporaneous medical records.. This has been frustrating and unfair – the same reason worrying features may not have been documented after all being potentially the same reason they were not acted upon (ie they were not considered important).

In this context, all praise the smartphone (apple or android, we’re smartphone agnostic!), now 1 of the plaintiff medical negligence claimant and their lawyers best friends!

I noticed with interest and some concern, recent media attention (see for example and a Herald Sun story in mid-May) concerning the number of Australians travelling to Asia to undergo cosmetic surgery.  According to a recent report, this may be 15,000 patients a year.

Concerns have arisen at the costs then borne by Medicare for remedial treatment for patients suffering complications of the procedure overseas.  According to a Monash Uni study, this is almost $13,000 per patient undergoing such treatment. This is a lot.  $13,000 involves a lot more than simple infection treatment etc.

This in combination with concerns from a public health and safety perspective about such completely unregulated and possibly unregulatable industry is obviously of significant concern.

Action against the surgeon/provider of sub-standard medical treatment overseas (noting “sub-standard” meaning below the standards that would be expected in Australia), will depend upon the law of the place in which such treatment is provided.  Even if, through ingenuity, claim could be brought against the surgeon/service provider in Australia, in the absence of any likely insurance, recovering any loss or compensation from a surgeon or clinic overseas would be problematic.

The only remaining option if a serious complication or other sub-standard outcome occurs, is to make claim against the local Australian promoter and facilitator for the overseas medical care.  A quick google search will net a whole bevvy of such ‘health travel agents’ with a flashy website promising a ‘Kardashian like outcome’ at a bargain basement cost (with a holiday thrown in!).

This is the avenue we have pursued on behalf of clients, with some, but not complete, success.  Such claims are essentially misrepresentation and misleading and deceptive conduct cases against the website operator.

Whilst ideally this sort of promotion would not be permitted or would be tightly regulated to ensure responsible and accurate statements about the risks and a fair evidence-based comparison between services provided overseas and those with a registered and insured local provider, in the absence of this, such mode of claim seems the best likely to be available, for now at least.

 

I today presented a paper at conference providing a review of 10 recent Australian medical law cases since January 2016, which I found interesting.

Cases reviewed were: Coote, Bigg, Morocz, Westcott, Martin, Pierce, Sorbello, McManus and Stefanyszyn and Wright.

Although only a single Judge decision, I particularly noted the WA District Court Judge Sweeney’s decision in Wright v Minister for Health [2016] WADC 93, which is an interesting [if long] read as to the approach in considering a peer defence, under the Civil Liability legislation.

Apart from this case, I have not seen a case discussing what sort of evidence should be lead to establish a relevant practice is ‘widely accepted by the health professional’s peers as competent professional practice‘ (section 5PB(1)).

It supports my view that this should require more than : (A) an expert saying they think they know what their peers ‘widely accept;’ or (B) an expert saying he has asked a few colleagues and they agree that what was done was competent practice!

Anyone who would like a copy of the article, email me at julianj[at]jjlaw.com.au

It is no doubt my age..  but I have an acute sense of deja vu!

As from 1 July 2016, we have ‘reverted’ to the old scheme of Boards of Management running our major hospitals (and geographic areas).  See the Health Services Act 2016 + the 30 June 16 Government Gazette.

The consequence, if I am right, is that the Minister for Health (not in this context the MP, but the entity incorporated as the relevant hospital board), was abolished and from 1 July 2016, any existing liability has transferred to the ‘new’ Board.  Strictly speaking, this should require an application to add/substitute the ‘new’ defendant.  I understand RiskCover are taking a pragmatic approach, to existing proceedings (provided served).

Anyone needing help with such an application, how to plead the transmission, let me know.. happy to help (I’ve been here before!)