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.

 In Varipatis v. Almario [2013] NSWCA 76, the New South Wales Court of Appeal reversed the trial judge’s finding in favor of an obese patient alleging negligence on the part of his general practitioner in failing to refer him for weight loss surgery.

The trial decision, which on any assessment was generous to the plaintiff Mr. Almario, had generated media attention and concern that it in effect required such a referral in any case in which an obese patient with a co-morbidity [in this case diabetes] presented to a general practitioner. Furthermore, that in some way the general practitioner’s obligations went beyond firm counselling the patient as to the need for weight loss and health risks if this did not eventuate.

The case must be treated with caution in relation to contemporary medical practice, given the time of the relevant GP care in issue. On appeal it was significant that the link between obesity and liver disease was not well understood until 2002, which followed the relevant care [and is indicative of the time this case took to proceed].  

No doubt the trial judge had considerable sympathy with Mr. Almario’s situation. At the time of trial he suffered from advanced liver cancer with no likelihood of long term survival.

The case on its facts presents a good reminder of the difficult evidentiary path patients [and so plaintiffs] may face in establishing their case and the obstacle the burden of proof creates. On reading the decision I was reminded of the analogy given to me by a senior lawyer, years ago, that a complex plaintiff’s case is like constructing a multi-storey house of cards, with a doctor or hospital only having to dislodge a single ‘card,’ or step in the chain for the claim to fail.  Further, to dislodge a card, all the hospital or doctor need do is create doubt.  They often have no need to prove anything: only to create doubt..

In Almario, amongst other steps (or ‘cards’) that Mr Almario had to satisfy to prove his case, even if it was accepted that he should have been referred to a bariatric surgeon for consideration of weight loss surgery, were:

  • that such surgeon would have recommended surgery for him;
  • that Mr Almario would have decided to proceed with such surgery, even if recommended (appreciating it was clear there were risks of complications associated with such surgery, of significance);
  • that the surgery would have been successful technically (again, there were well recognised risks this would not occur);
  • that even if such surgery was successful, Mr Almario would have achieved persisting weight loss (noting the risk of this, even when all went well, was in some quarters 50%);
  • that such weight loss would have avoided Mr Almario developing cancer.

This, it can be gathered, was a formidable task..  If cumulatively considered, it was easy to see why a conclusion would be reached that it was far less than an even chance that Mr Almario would have got to the end (built his complete house of cards).  

An intriguing issue is whether such issues should be considered collectively or sequentially: from a plaintiff’s perspective, there is a clear significant benefit of the latter (ie if you prove step 1 on a balance of probabilities, you move to stage 2 and consider it), rather than the former.  My impression is that the trial judge followed this sequential fact finding process.

The appeal succeeded largely because the Court of Appeal did not accept that the trial judge’s reasoning and generous factual conclusions were justifiable, rather than any issue of legal principle. The Appeal Court were not satisfied, even had a referral for advice by a bariatric surgeon occurred, that Mr. Almario would have proceeded with the surgery and that such surgery would have been successful, such as to avoid the development of his liver condition and subsequent cancer.

As has been widely reported we recently acted on behalf of the family of Julienne McKay-Hall the woman who tragically died following weight loss surgery. As reported, the Coroner’s findings are a scathing condemnation of both the relevant surgeon Dr Ahmad’s care and that of nursing staff at St John of God Hospital in Murdoch. A copy of the coroner’s findings can be provided, if you contact us (see email details elsewhere on the site).

An interesting legal issue which arises from the decision is the question of a medical practitioner’s obligation to advise prospective patients of limitations imposed upon their practice and particularly, restrictions in terms of the locations at which they are accredited to operate and any limits on the types of procedures they may perform.

My view has always been that a medical practitioner’s obligation to advise their patient of all information likely to be significant to them in determining whether or not to undergo treatment, most particularly surgical treatment, includes an obligation to inform the patient of any imposed limits on their capacity to practice medicine and in relation to their range of services. Rightly or wrongly, if the issue is information likely to be considered significant by the prospective patient, as it is, it is a subjective test. The test is not what the patient should consider significant in deciding on treatment choices.

I have no doubt that the overwhelming majority of patients would say that the fact their proposed surgeon is not permitted to perform particular surgery or has been suspended from practice at a particular hospital, because of complication rates etc, would be very significant indeed to them in deciding whether to proceed with treatment at such surgeon’s hand. Similarly, and this is a repeating issue in the cosmetic surgery area, the fact a surgeon’s formal training may have been in Ear Nose + Throat surgery rather than plastic surgery, would I am convinced, be likely to be significant to a patient contemplating cosmetic breast surgery.. I use this example, not as an extreme example of unsuitability: there are several well-known examples of ENT trained surgeons working in cosmetic breast surgery, in Perth.

I suspect, though I would be pleased to be wrong, that this disclosure obligation is not something commonly met. It would be interesting to know the regulator’s views on this topic and any advice provided to practitioners subject to limits upon their practice as to such disclosure obligations.

 

As part of the process of interviewing for a new solicitor to join the firm, I have reflected on the types of case we have recently been instructed in and those areas of medicine that are emerging as fertile areas for claim.  Traditionally, major repeat areas of work continue to be gynaecology, GP care, neurosurgery, radiology and orthopaedics.  

If anything, there has been a reduction in birth injury claims.  My view is that this has followed increased standardisation of practices/protocols, in WA’s major obstetric units – I hope this is true and that the reduction in clients is a measure of a reduction in adverse outcomes, which we would all be happy to see.

My review revealed the following points worthy of note:

  1. Not surprisingly, elective or semi-elective surgery continues to be a ‘growth’ area.  We are now seeking a regular flow of bariatric surgery cases (lap band surgery, vertical sleeve gastrectomy etc).  We are also seeing the continued fall-out from the very variable expertise of cosmetic surgeons, particularly in breast surgery.  Apart from poor outcomes from augmentation (breast enlargement) and breast reconstruction, perhaps surprisingly, we are seeing claims from poor outcomes from breast reduction surgery;
     
  2. We have recently seen a ‘spike’ in orthopaedic hip replacement surgery cases: particularly infection problems post-THR.  At a recent conference I attended, I was struck by the advice given as to the seriousness of such infection problems with joint replacement surgery, both in terms of incidence + the seriousness of consequences if such an infection arises;
     
  3. We continue to see regularly, cases relating to anti-coagulation + DVT (deep vein thrombosis) and PE (pulmonary emboli);
     
  4. We have seen several interesting cases in which issues arise as to the comparability of care in regional Western Australia, compared with Perth.  Issues arise as to whether appropriate credentialling of country specialists is occurring and whether follow-up/investigations are appropriate in country areas;
     
  5. We have seen several cases recently surrounding obstetric complications, but concerning mother rather than baby;
     
  6. we continued to see cases involving laparoscopic surgery – reinforcing the impression I have long held, that complication rates with such surgery are more variable, depending on the skills and experience of the surgeon, than many patients would imagine;
     
  7. We continue to see cases relating to system failures – hospitals and GP practices in particular, failing to have adequate systems to ensure patient follow up + arrangements for investigations etc.  Given extended waiting lists for some non-urgent investigations in the public system, a failure to advise the patient of the date for their MRI scan, ultrasound, colonoscopy etc, can result in delays of 12 months or more in some cases.

Would be interested to hear other comparable practices experiences + whether they are seeing similar focus areas developing.

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.