Interested talk at the recent annual ALA medical negligence conference in Sydney at which a stroke expert discussed the recently published large study of stroke treatment outcomes.

Such study clearly demonstrated the benefits, in terms of survival chances, of giving patients of any age thrombolytic treatment, if attending:

  • less than 3 hours after stroke onset; and
  • more importantly, even if not, provided still within 3 and 6 hours of their stroke.

The study results were apparently unexpected in that it had been commonly believed that such treatment was less likely to be effective in older patients.

The speaker confirmed that such treatment should be given by suitably trained and experienced medical practitioners…..

The question this raises, for patients suffering stroke in our enormous State, is what about patients who attend hospital at an A+E department (in our far north for example) within this timeframe, but with no reasonable means by which the can be transferred to a major facility within the time window?

Hopefully this is something WA Country Health Services and country hospitals themself have well in hand, both in terms of protocols as to the time for such therapy as well as training for practitioners so it can be administered.

An important issue given stroke is Australia’ 2nd largest cause of death and responsible for 1 in 7 deaths… 

 I was interested (and a little horrified) to read the recent coverage of the South Australian Coroner’s findings concerning 3 foetal deaths in SA, associated with home birth in ‘non-low-risk pregnancies’ (1 at least involving a breech presentation). See for example here. Soberingly + tragically the Coroner found that in each case, had the baby been born in a hospital setting it is likely they would have survived. A comparable case in WA was identified, though for jurisdictional reasons the SA Coroner did not make findings as to such case (other than to confirm the factual similarities).

The coverage demonstrates the extraordinary lengths some unfortunate misguided patients will go to, to go ‘natural all the way,’ apparently without regard to the risks taken..

Although not surprisingly, statistical comparison is controversial, neonatal death occurred less than once in 1,000 hospital births, compared with two in 1,000 home births, said an American Journal of Obstetrics & Gynecology meta-analysis published in September 2010. This suggests an absolute risk increase of 100% if birth is in the home, rather than at hospital. I suspect this risks increase is significantly greater in cases other than ‘low risk.’

The cases (once again) opens the questions of choice and patient autonomy + constraints that we, as a society, should impose upon ‘free-choice.’ This in some ways echos the issues arising in the Dingle case. The unusual and distinguishing factor for decisions in an obstetric context, is that ‘choice’ and autonomy for mother may have, as in these cases, catastrophic consequences for a person other than the patient themself, the unborn baby.

Given this, I think it clear we have an obligation to ensure that controls are placed upon ill-informed/misguided choices, to protect such children (as to which see the Coroner’s findings in relation to Ms Barrett, the home birth advocate).

It seems to me that a cut-off line should be set at which home-birth is not permitted, if a reasonable alternative in a hospital setting is available. A designation of ‘home birth contra-indicated,’ in the clearest of cases (only) should be permitted by the responsible supervising team.

I would have thought that education/information as to the risks, in most cases, will be sufficient to convince pro-home parents, to elect a hospital birth. For those stubborn or insightless enough to ignore ‘the facts,’ an appropriate avenue for directive (non-criminal) should be possible, via SAT or otherwise. I’m happy to volunteer my services to assist, if required…


ps: it should not be inferred from the above that I am ‘anti-home birth.’ Clearly in many, many cases this is perfectly appropriate and something that may be left to the parents choice in an informed process.. The concern is the no doubt small number of cases in which determination for a mode/venue of delivery is so great as to outweigh sense + place the unborn child at unreasonable risk.

 The Australian Institute of Health and Welfare has published another of its annual reports, providing statistics on public and private sector medical indemnity claims in Australia.  These cover the 2009 year.  Interesting reading..

Total ‘new’ claims in the year totalled 2,600, roughly equally split between public v private medical care.

The more interesting figures came in terms of cases closed/finalised in that year.  The total here was 3,100, which sounds like a lot until it is appreciated that 30% of these were resolved without any payment (so 930).  Then we take out another 36% in which the payment was $10,000 or less (another 1,1116).  This leaves 1,023 claims, of which 124 (4%) recieved payouts of $500,000.00 or more.

Interestingly, there was no suggestion at all in the report (at least that I could see) to suggest any increase in claims costs/incidence.  This in real terms probably indicates a fall, given the increasing costs of remedial medical treatment etc, that would fall within many claims.

Crisis, aint no sign of one… for all the info, see here.

Was interested to read in the West of the James Cook Uni study to follow up outcomes and attitudes (after the event) of women choosing vaginal -v- elective caesarean section.

While I defer to the experts, the more information and hard evidence, rather than ‘old wives tales’ and medical-politics, assisting women to make health decision relating to childbirth the better..

For one thing, some accurate and verified information about incidence/severity of pelvic floor injury/dysfunction following vaginal delivery, I would have thought useful in assisting women with their choice.

I was once told that a study of UK female obstetricians overwhelmingly supported elective c-section, because of the avoidance of potential urinary incontinence/bowel dysfunction/sexual dysfunction perceived to arise with a vaginal delivery. How many obstetricians warn patients of this risk, when discussing birth options, particularly with an anticipated large baby?

I appreciate that this is a complex decision for the mother, involving evaluating the risks and benefits for both mother and baby. Nonetheless it is their decision + our Law recognises an obligation on those advising, to ensure they are aware of all the information likely to be significant to them in making their choice.

I was surprised to read the RANZCOG President’s comments that "One of the issues facing obstetricians is the lack of information about the underlying reason a woman may want to choose a caesarean section where there is no medical reason."

Isn’t there an obvious solution to this… in a non-confrontational, non-judgemental context, ask her…….. 

As a post-script to the recent resolution of my client’s claim against a travel agency, promoting Thai cosmetic surgery, I now have to drive each day past a massive billboard on Railway Rd, Subiaco, promoting the services of another such agency. Clearly its a thriving business sector…

To protect those uninformed enough to think that breast augmentation surgery or laser eye surgery, in conjunction with 5 Star Accomodation in SE Asia, is a good idea + the 2011 equivalent of a beach massage in Bali or a pedicure at the local shopping centre, my modest proposal is to introduce legislation:

1) requiring such agencies to have comprehensive insurance against claims by those travellers suffering serious complications/adverse outcomes from their cosmetic procedure.

2) requiring such agencies to recommend and have prospective clients/patients sign an acknowledgement that they have been advised to seek indepedent local medical advice as to the sense (or otherwise) of the proposed treatment.

3) holding such agencies liable in the event of an avoidable adverse outcome from the foreign treatment.

Can’t see it happening, but …. 

Following on a recent post, in recent days I have again been reminded of how jaundiced my perspective on medical care is and how the great majority of careful, skilled medical practitioners "fly under the radar," in my world of medical litigation.

My wife required a micro-discectomy last week, due to a disc protrusion, no doubt attributable to 20+ years of nursing..  

The neurosurgeon brave enough to operate on my wife (I suspect he does not know + my wife certainly would have been slow to volunteer her relationship to me), provided a shining example of cautious, well explained and reasoned advice, followed by technically proficient surgery.  The ‘icing’ on the cake was his call to me (as next of kin), at about 9:30 pm last Friday to confirm all had gone well + he was optimistic of a good outcome.  In no way part of his contractual obligations, but very much appreciated

The second example was the press club interview with Barry Marshall I happened to catch today on daytime telly…  How inspiring!  Although not quite ready to hand over the $2,000 per head for genome testing + registration, he certainly painted a clear picture of the enormous benefits genetic testing can offer to medicine in the surprisingly near future.

On that note, back to work + preparing claim against a lesser surgeon, who’s muddy thought, awful communication skills and oaf-like technical acumen is more what keeps me busy day to day.


Odd and uncomfortable territory for a lawyer to touch upon…

As is now a matter of public record, I act for Saba Button and her parents in relation to her claim arising because of her terrible complications from the flu-vax in 2010.

There has been recent media interest in the fact an approach has been made to the WA State Government, seeking an ex gratia payment, given the circumstances surrounding Saba’s flu-vax.

I have stated publically that in Mick and Kirsten Button and my view, the Government has a moral obligation to Saba, quite discrete from any legal liability for compensation.

More than 1 colleague and friend (legal and otherwise) have ‘tongue in cheek’ passed comment on the heresy of a lawyer speaking about ‘moral,’ as distinct from legal obligations. I concede it is not an area in which I have any more knowledge or skill to comment than any other member of our community.

Thinking about this has however highlighted in my mind the fact that the Law ‘only’ serves to set the minimum standards of behaviour set for society; the limits of what is and is not acceptable. It says absolutely nothing and has no meaningful role in seeking to encourage our best. To define what we should hope of each other, or aspire to, as a community and individuals, rather than what is the point beyond which we will not tolerate…

Little wonder then that Law can be a depressing field to work in, from time to time. In medical negligence law, I spend my entire time focussing on whether care was below the minimum that ought be expected of our health professionals. I see nothing and have no contact with the inspirational, standard-setters in medical and other practice, defining best practice.

In any case, whether expert or not, I am convinced the Government should (though it can’t be forced to) do the right thing by Saba…. 

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:

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.

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.


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.


 I read with interest an article in the MJA earlier this month, which comments on the status of the ‘peer defence,’ introduced, in WA, via the Civil Liability Act section 5PB(1).  This section, provides that:

An act or omission of a health professional is not a negligent act or omission if it is in accordance with a practice that, at the time of the act or omission, is widely accepted by the health professional’s peers as competent professional practice.

This provision and similar ones in other States was introduced based on a concern (misplaced I have always thought) that Courts were setting standards for doctors which were too high and failing to appreciate real world considerations.

Despite concerns at the time this section was introduced, that it would significantly ‘water down’ legal expectations of health professionals, years on, I cannot think of a case I have handled since, in which this test, compared with the previous ‘reasonable care’ as determined by the Courts, would (or has) changed the outcome.  

In my experience, if a claim would succeed under the pre-section 5PB Law, it would succeed now.  If it would fail under the section 5PB Law, it would probably have failed before.  This includes the facts in the Melchior case, referred to in the MJA article.

It is theoretically possible that a Judge may consider care or advice provided by a health professional was not reasonable, despite it being in accordance with accepted practice followed by a significant number of the health professional’s colleagues.  Obviously this would be very exceptional.  We all hope (and believe) it is not going to be common for a significant number of doctors, for instance, to be all acting unreasonably in their care or advice they provide to their patients.

Even in such an unlikely scenario, it is unclear whether section 5PB would give a defence.  This is because of sub-section (4), which via a convoluted path, probably says that such defence does not apply if the practice by this group of peers is not reasonable…

Overall, as I have thought for some time, my present view is that section 5PB is/was primarily a reassurance to the medical profession that it will only be in an exceptional case that Judges will find a doctor negligent, when he has followed well-recognised and broadly followed and justified practice in their care.  In my view this was the case before the section was introduced and remains the same.  The section changes perception of the legal position, more than it changes its application in the ‘real world.’

fn: it needs to be remembered that such section has no application in relation to the required warnings as to risks associated with treatment.  Peer consistent practice (ie ‘none of us tell patients about this risk’) is no defence in such context (see s5PB(2)).

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).