West Australian Medical Negligence Law Blog

West Australian Medical Negligence Law Blog

Insights On Medical Negligence Issues From The Perth Area And Throughout Australia

I have been a lawyer for 21 years, during which time I have predominantly represented injured people in pursuing compensation claims. In the last 10 - 15 years, I have focused on medical malpractice / medical negligence law and particularly claims arising from negligent medical care. Read more

Bariatric Surgery in UK – different patients, different justification..

Posted in Contemporary Medicine

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.

Forget CSI … the humble smartphone: the medical lawyers new best friend!

Posted in Contemporary Medicine, Our Cases

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!

The Costs of Medical Tourism

Posted in Cosmetic Surgery (and Other Treatment), Our Cases, Uncategorized

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.

 

Case Review: 10 important medical cases since Jan 16

Posted in Uncategorized

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

Public Hospital Restructure (again!)

Posted in Contemporary Medicine, Our Cases

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!)

Ian Harris’ book: whistle blown and common unnecessary operations listed

Posted in Contemporary Medicine, Our Cases

I read with interest the article in last weekend’s Sydney Morning Herald concerning Ian Harris’s recent book.

In the interests of full disclosure, Ian is an orthopaedic surgeon from whom we commonly seek advice, as an independent expert to review and comment on orthopaedic cases we are investigating. He strikes me as a sensible and “down-to-earth” expert.

I was intrigued at the list of operations which apparently his book confirms are commonly performed but objectively of questionable benefit. In the orthopaedic/spinal area, 3 of these particularly resonated, being spinal fusion operations, arthroscopies and epidural steroid injections.

Each of these are procedures we are regularly instructed to investigate. We presently handle a series of cases in which catastrophic outcomes have followed these initiatives.

I was particularly interested to read the sevenfold variation in the rate of knee arthroscopy surgery between different regions across Australia, which speaks volumes as to diverging views as to its usefulness.

We have handled 2 or 3 cases in the last couple of years in which patients have developed serious infection following such primarily investigative procedure, despite the fact it is I think fairly understood to be relatively low risk. One such case, which is not yet resolved, involves damages > $1M.

I was also interested to read in relation to epidural steroid injections, which are commonly performed upon patients complaining of back or leg pain, that the published literature shows no better relief from such steroid injections than a placebo saline injection. We are presently investigating one case in which a patient (our client) suffered profound permanent neurological injury from such an injection.

All credit to Prof Harris for his refreshingly questioning of professional practices in this area.

Quite apart from the unjustified drain upon the public purse, my observation would be that such questionable interventions are especially hard to justify when the outcome can be as catastrophic as we have seen, even if this is a small minority.

Fatal Accidents (which aren’t accidents) : the ‘missing’ claim

Posted in damages assessment, Our Cases

Coincidentally, in month or so before Christmas I have handled pre-trial settlement negotiations in relation to 2 similar cases, in the sense they both involved negligence allegations which it was claimed had led to the death of my clients life partners (in old fashioned speech: wives..).

Although the background and issues with the medical care were entirely different, the first thing that was notable in each case was the rawness and severity of their persisting anger and grief, despite the period that has elapsed (5 and nearly 10 years respectively) since my clients’ respective wives died.

As we negotiated in each case, there was an air of unreality. In particular, what was highlighted is the disconnect between the most profound aspect of loss suffered by my clients and the loss the Law is interested in and prepared to compensate.

In both case, my clients overwhelming concern and loss was the loss of their life partner and the dramatic change in their life’s trajectory because of this. In each case my clients were in early middle age with teenage children. Their predominant perceived loss was the negligently caused loss of their loving partner.

In contrast, the Law, when assessing compensation confined (it may be said distorted), the loss of such partner into 2 aspects:

• an evaluation of the replaceable services the deceased wife would have provided, essentially as unpaid child care worker and domestic servant.

• Insofar as my clients grief and suffering, the extent such suffering passes into the pathological and so can be labelled (at least according to traditional legal theory) a diagnosable psychiatric ‘injury’ (most commonly depression, anxiety or in some cases, post-traumatic stress disorder).

No compensation is paid for the ‘core’ loss they have (and other comparable claimants suffer) experienced in the loss of their life-partner (or parent), due to negligent medical care.
Whilst I understand the policy arguments for limiting recovery in psychological/emotional distress cases, the disconnect between the law and “reality” was highlighted by the totally independent incredulity expressed by each of these clients during this process seeking to negotiate resolution of their claims.

An example of the dangers of self-representation

Posted in Case Summary

My impression is that there has been an increase in recent times of cases presented before our District Court in which claimants have represented themselves, without a lawyer.

A sobering example of the dangers of this course, is the New South Wales Supreme Court’s recent decision in Fan -v- South Eastern Sydney Local Health District (No. 3) [2015] NSWSC 1620.

In this decision by Justice Harrison, the court dealt with the legal costs following failure of Mr Fan’s medical negligence claim.  Mr Fan parted company with his lawyers in May 2013, two years before trial. He was “assisted” in presenting his case by his son who it appears was a law student. Trial took 10 days in March and May 2015.

Justice Harrison ordered that Mr Fan pay the health service’s legal costs of the claim in the sum of $250,000. In part this followed the fact the defendant, it was disclosed, had made 3 separate settlement offers over the course of the proceedings, including offers to pay $100,000 and later $250,000 in settlement of Mr Fan’s claim, which offers had been rejected.

This must have added insult to injury for Mr Fan.  Not only did he lose his claim, but he did so having rejected such settlement offers from the defence.

As stated earlier, this seems to be a growing trend for plaintiffs, for whatever reason, to seek to present their own cases at trial. Whilst presenting the case in person avoids costs of the plaintiff’s own legal representation, as this case clearly demonstrates, the plaintiff nonetheless still faces the risk of being ordered to pay a very substantial sum to the defendant if the claim does not succeed.

Note as a measure of the costs expended, the $250,000 is actually slightly less than 1/2 the total legal costs incurred by the defendant in relation to the case which was stated as $512,250.83…

Caesarian v Natural Delivery : the debate continues

Posted in Contemporary Medicine

I read with interest the recent article in The Guardian provided an update as to the ever escalating rate of cesarean section births in Australia. The article makes all of the well-known [predictable?] arguments in favor of natural delivery.
It is true, the divergence between cesarean section rates in Australia and the World Health Organization’s recommended rate is remarkable.
Unfortunately, what the article does not do (and much of the debate ignores), is a ‘risk-benefit’ comparison of the two options of cesarean versus a natural delivery (in other than high-risk pregnancies). The truth is that there are risks involved with either option. While public perception in this century tends to ignore this; the simple fact is that childbirth is not [yet] a risk-free process, whichever mode of delivery is preferred.
The most interesting issue, not tackled by the article, is why the divergence of rates?
This must result from the relative weighting applied to the pros and cons of the two alternatives, by contemporary Australian society [and mothers]. Obviously, such weighting diverges from the weighting the WHO considers ‘appropriate’.  The really interesting question is what are the factors leading women to increasingly frequently choose caesarian as their mode of preference?
The law in Australia has for a long time (and in the UK more recently) recognized that healthcare choices, including mode of delivery, are for the patient to make, on a properly informed basis. They are not to be dictated by the health professional, the WHO, or population-based policy, at a government level. This is complicated by the fact that the mother is actually making a choice for two rather than one person. An intriguing (near unique) legal issue is the question of the mother’s obligations when making such choice to weigh the competing pros and cons from her and her child’s perspective. It is clear that in some respects, the unborn child’s interests may point towards one option while the mother’s preference may lie elsewhere.
The “appropriate” rate for cesarean sections in Australia is to be determined by the rate at which properly informed mothers make their choice, one way or the other.
If there is concern at such rate, the ‘answer,’ if there is one, is to better educate parents, to ‘assist’ them to make sensible decisions as to the weight to be attached to the respective pros and cons of one mode of delivery and the other. To do so, once again, requires that this information be clear. To me at least, this is not yet the case in this debate.

Time Limit for a Medical Negligence Claim: Court of Appeal generous as to extensions

Posted in Case Summary

Western Australia’s Court of Appeal in its decision AME Hospitals PTY, Limited v. Dixon [2015] WASCA 63, delivered on 27 March 2015, confirmed, particularly relevantly in the medical negligence claims area, significant scope for persons to bring claim outside the basic 3-year time limit for such claims arising since November 2005 and the introduction of the Limitation Act 2005.

To be permitted to bring claim  beyond the 3-year time limit, Section 39(3) the Limitation Act 2005 provided that the person wishing to bring claim must establish that when the 3-year time limit expired they were not aware of one or more of the following:

  1. The physical cause of the death or injury;
  2. That such death or injury was attributable to the conduct of the person against whom claim is sought to be brought; or
  3. The identity of the person against whom the claim should be brought, despite reasonable inquiry.

In the Dixon decision all three members of the Court confirmed that for ‘awareness‘ of the above facts to arise, there, in effect, had to be a solid foundation/justification for belief. It was not sufficient for a suspicion or even, it would seem, an ungrounded belief to be held.

President McLure (with whom Newnes J.A. agreed) confirmed that where the “awareness” relates to a matter for expert knowledge or experience this will arise only when an expert opinion, reasonably capable of being accepted by a Court and capable of establishing the relevant facts exists and is known by the person [41].

In practice therefore, in a medical negligence claim, to have awareness that an injury was “attributable to the conduct of a person” (the 2nd test above) will, in my view at least, almost inevitably require that an expert medical witness has expressed such a view and this has been made known to the claimant.  This is also likely to often be the case for full awareness as to the physical cause (an odd phrase) of an injury (the first aspect of awareness that may be lacking to qualify for a possible extension).

Buss JA in a separate judgment suggested that the necessary “awareness” must mean knowledge or belief “with sufficient confidence reasonably to justify, in all the circumstances, the commencement of proceedings against the proposed defendant on the relevant cause of action by the issue of a writ or otherwise.” In a professional negligence context, such as a medical negligence claim against a doctor or hospital, it is hard to envision this point being reached before the claimant has been advised to do so by their legal advisors/representatives.  In our case at least, this will almost always require that a respectable independent medical expert has confirmed shortcomings in the relevant care and that this was a cause of harm to the patient.

In practice, this means that there will often be good prospects in medical negligence claims, other than the most straightforward, for seeking an extension of time to bring claim outside the 3-year time limit, where a client (the patient) delays seeking legal advice or investigation of the claim until outside this 3-year timeframe from their initial injury, or where provision of the expert opinion does not occur until this 3-year time limit has expired. This is very generous indeed and good news for our clients.

Two factors do however still need to be borne in mind in this context, before we get too carried away (!), being:

  1. There remains a 3-year outer limit for any extension from when awareness of the relevant matters ought to have arisen. In other words, there needs to be some reasonable explanation put forward for substantial delay in looking into a claim and obtaining appropriate expert advice, etc;
  2. Further, capacity to seek an extension of time does not guarantee that it will be granted.  In particular, in the event that the doctor, hospital or other health professional can show prejudice because of the delay in a claim being brought, the Court remains perfectly able to refuse to grant an extension despite the discretion arising.

Somewhat disappointingly, the Court of Appeal did not provide any clear guidance in relation to a remaining difficulty with claims and figuring out time limits.  This is the uncertainty as to when the 3 year time limit begins.  This remains unclear because the meaning of Section 55(1)(b) of the legislation and what is meant by when the “first symptom, clinical sign or manifestation of personal injury, consistent with a person having sustained a not insignificant personal injury.”  This determines when the initial 3-year period begins to run. As can be gathered, the meaning of these words is far from obvious…

As I have observed previously, it is important to appreciate that the lack of such awareness at the 3-year limitation, expired point is mandatory. Bizarrely, if such awareness arises the day preceding this deadline, no power to grant an extension arises.