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.

The High Court recently dismissed the special leave application brought in this case by Ms Paul, seeking to overturn the New South Wales Court of Appeal’s decision rejecting her claim.

As may be known, the case concerned a delay in diagnosis of an intracranial aneurysm suffered by Ms Paul. She underwent a head CT Scan in 2003 and Dr Cooke, the radiologist, negligently failed to identify and therefore diagnose the aneurysm.  In 2006, following a further scan, the aneurysm was diagnosed. Sadly during surgery to remove the aneurysm it ruptured causing Ms Paul a stroke and serious injury.

For the purposes of the special leave application it was accepted that the risk of rupture/stroke associated with the operation Ms Paul underwent in 2006 was no different to the risk had she undergone surgery in 2003, as would have occurred had Dr Cooke not negligently failed to diagnose the aneurysm.

The New South Wales Court of Appeal had concluded that Dr Cooke’s negligence was not the cause of Ms Paul’s surgical complication. His negligence changed the timing of surgery but did not alter the risk associated with it. It did not matter that it could be fairly said that had Ms Paul undergone surgery in 2003, it was very unlikely that she would have suffered the rupture and stroke she did in 2006.  Dr Cooke had breached his duty of care, but was not responsible for the stroke.

The High Court rejected the application for permission to appeal from such decision (the special leave application), because its members, in essence, agreed with the Court of Appeal. There was not sufficient doubt to warrant granting permission to appeal.

There is now a clear distinction between diagnosis and treatment cases on one hand and failure to warn cases on the other in this important context.  In the latter, it is well recognised (and recently reaffirmed by the High Court in Wallace v Kam, [2013] HCA, 19) that a patient can succeed in a claim if able to show that had they been properly warned of the risks associated with treatment they would have delayed proceeding, even if ultimately such surgery or treatment was likely to occur and would involve the same risks as eventuated at the time of their operation. More must be shown in diagnosis/treatment cases. A negligently caused delay in surgery carrying the same risk is not sufficient for liability.

Paul v Cooke failed, apart from on general causation principle, by reason of the terms of section 5I of the NSW Civil Liability Act which provides that:

“a person is not liable in negligence for harm suffered by another person as a result of the materialization of an inherent risk.”

The New South Wales Court of Appeal rejected argument on Ms Paul’s behalf that this section was limited to materialisation of a risk associated with treatment provided by the negligent defendant. This section was interpreted as broad enough to exclude liability when the inherent risk that materialised, as occurred in the surgery performed by the team caring for Ms Paul in 2006, well after the negligent failure to diagnose by Dr Cooke.  Interestingly the WA equivalent provision, section 5P is differently worded from the New South Wales legislation and does seem to be limited to inherent risk associated with the defendant’s treatment.

As yet further proof that the most humble of circumstances can be made complex by the Law, the High Court recently (7 March 2012) handed down its decision in the “Big W hot chip case” (Strong v Woolworths [2012] HCA 5).

The case concerned a claimant, the aptly named (given the need to litigate her case all the way to the High Court) Mrs Strong, who suffered serious injuries when she slipped and fell at a suburban shopping centre.  It was not in dispute that the cause for her fall was her slip upon a greasy chip on the floor of the sidewalk sales area outside the store.

The initial trial judge concluded (and this was not disputed by the time the case got to the High Court), that the defendant had been negligent in failing to have in place an appropriate system for inspecting and cleaning the relevant area.  Interestingly it was suggested that reasonable care required inspection and cleaning of such area at 15-minute intervals [14].

The difficulty faced by Ms Strong (and many clients in similar cases) was proving that if the defendant had in fact had a proper inspection and cleaning, the chip would have been identified, cleaned away and the accident would have been avoided.  This is a classic ‘causation’ issue.  Once negligence is proven, in cases like Ms Strong’s (and medical negligence cases), the question becomes whether the negligent party should therefore be found liable to compensate the person making claim.  This depends on whether, as a matter of Law, it should be concluded that the negligence caused their harm.

Ms Strong had succeeded at trial on this issue.  This was then reversed on appeal in the New South Court of Appeal.  The Court of Appeal concluded that it could not be proven by Ms Strong that an appropriate system of cleaning and inspection would have removed the chip, because there was no evidence as to when it had in fact fallen to the ground. Based on (inherently) scant evidence, the Court of Appeal concluded there were pointers to suggest the chip had probably not been present for a long period of time. This included the fact the accident had occurred in the lunch period and apparently (I know, this is ground breaking!) people often like to buy hot chips at lunchtime.

Thankfully for Ms Strong, the High Court reversed the court of appeals decision upholding Ms Strong’s claim and awarding compensation.  This conclusion was based upon the view that when all the evidence was looked at, it could be safely concluded that an appropriate system would have been likely to have identified and removed the relevant chip.

The more interesting aspect of the matter from a medical lawyers perspective was the court’s discussion in relation to the approach to deciding “causation” questions in difficult cases, where evidence as to the link between negligence and the poor outcome is thin, or difficult.

The majority of the court confirmed that argument had not been put to it suggesting that determination of such causation questions under the Civil Liability Act resulted in any change of outcome compared to the approach to causation at, law (preceding the CLA).  

The Court confirmed that it had not been determined that a non-essential but factually contributing cause would not satisfy such test (I know a ‘double negative’).  It was observed that section 5D(2) made express provision that causation could be accepted where negligence could not be established as a necessary condition of the occurrence of harm, provided the policy considerations described in the conclusion of such provision were satisfied [26].  

Tantalisingly, they did not go further and provide any commentary as to the scope of this possibility, which has thus far been ignored/unused.

Also interestingly, as with Amaca Pty Limited v Booth [2011] HCA 53 the Court seemed to me to be careful to make clear that it has not to date been asked to decide whether negligent conduct causing a risk of injury in which the state of scientifical medical knowledge makes it impossible to prove whether or not such harm eventuated, is sufficient to permit recovery of compensation (see paragraphs [25] – [26]).

This is the single largest issue of uncertainly in medical law.

It is often the case, in many types of medical claim, that uncertainty arises as to how a patient’s situation would differ had more appropriate care been shown (for instance delay in diagnosis of cancer cases).  Resolution of how such claims are to be evaluated when little or no clear guidance can be given by medical science, as to how the patient’s position would have differed (and if it would), with better care, remains very contentious and unclear.

Whilst I may be optimistic, the High Court’s recent statements in Strong and Amaca do appear to appreciate the difficulties facing plaintiff’s as a consequence of “evidentiary gaps” in such cases. 

 Just a quick post, appreciating I’ve been lax of late, to note the High Court handed down its decision today, rejecting the appeal against the NSW Court of Appeal’s decision, against the plaintiff in this case.  Does this mean the end of ‘loss of a chance" damages in Australia?

I will digest the decision and provide my thoughts as soon as I can….

 The High Court delivered its much anticipated decision in this case on 3 March 2010.  I have to say my impression is a sense of anticlimax…

As I have said in an earlier post, this case was seen amongst some (including me!) as providing an opportunity for the High Court to provide useful guidance as to the appropriate approach for deciding whether negligence or other breach of duty should be found to have caused an adverse outcome, in complex cases.  Cases involving ‘evidentiary gaps’ and were identifying whether or not a poor outcome was a consequence of the lack of care/negligence was difficult, because of the complexity of the science behind such conclusion etc, are some such cases.

The case, as is well known, was an asbestos exposure case.  Mr Ellis had been exposed to asbestos dust in the course of his work and by the time of this appeal there was no dispute that Amaca were at fault in allowing such exposure to occur.

The complexity to the case came from the fact that Mr Ellis’s medical condition about which the claim arose (and from which he had died by the time of this appeal), was lung cancer.  

Apart from exposure to asbestos, on the scientific evidence, it was clear this could have resulted from his heavy tobacco smoking habit (15 to 20/day for 26 years).  In fact the unanimous scientific evidence was that such smoking was likely to have contributed to the occurrence of his cancer.  The key question was whether his asbestos exposure had also probably contributed.

The medical evidence confirmed (at least on Mr Ellis’ case) that it was quite possible that both his smoking and asbestos exposure could have contributed to his cancer, either through a collective effect or as independent (but cumulative) causes.

The critical legal question was whether, in such circumstances Mr Ellis’ exposure to asbestos could be said to have made "a material contribution" to the occurrence of his cancer (the accepted legal test).

Surprisingly, Bret Walker SC, the fabulous Counsel appearing on Mr Ellis’ behalf, accepted for the purposes of this appeal, that the asbestos exposure should only be accepted as a cause of his lung cancer, if it were accepted on the evidence that it was more likely than not that had such exposure not occurred, his cancer would have been avoided (a lot of negatives in this proposition I know – don’t worry, if you say it 20x you’ll get the gist!).  

This was an acceptance of what is known as the ‘but for’ test, a traditional, non-exclusive test used by Courts to determine whether negligent conduct causes a particular bad outcome (or ‘injury").

On the expert evidence (which was primarily epidemiological), the High Court found that such test was not met.  It was not  more likely than not that had Mr Ellis not been exposed to the asbestos he was, that his lung cancer would not have occurred.  This was therefore the end of his claim (given the concession by Mr Walker SC) and the appeal by Amaca was upheld.

In fact the majority of what was, by contemporary standards, a relatively short decision, dealt with this review/consideration of the complex scientific evidence on this topic.  No statements of broad application or modifications to the Law concerning the approach to deciding so called ‘causation’ questions were made.

The disappointment of all this (for me at least) is that it seems to me there was a question the case raised, which the court could have (but were not asked to) discussed and explained.  This was the fact it is clearly accepted  that in some circumstances negligent action can be accepted as causing harm even where it cannot be shown that had such negligent not occcurred, the relevant outcome would have been avoided.  In other words, where the ‘but for’ test is not met.  The most obvious category of such case is where 2 causes for such injury, each sufficient to cause the injury occur simultaneously.  Another is where multiple causes each contribute collectively to the occurrence of harm and the negligence is only one such cause.  This latter category is one which is confronted fairly often in medical negligence claims.

In this case, it seems to me that even if Mr Ellis’ asbestos exposure could not be shown to have been necessary for the lung cancer to occur, this did not automatically mean it was not sufficient to be found to have in fact contributed to its occurrence, particularly where it was possible such exposure acted in conjunction with Mr Ellis’ smoking.  It is a pity the Court were not asked and so did not comment on the appropriate approach to considering whether such asbestos exposure should have been found to have been a cause of Mr Ellis cancer, on this basis, if, as they did, they were not satisfied that it could be concluded that it would not have occurred but for such exposure.

It is also a pity the court were not asked to consider and discuss the role policy should play in deciding whether, in Law, negligent conduct should be found to have caused harm.  It is well recognised by previous case law that policy has a role to play, one would have thought most commonly in situations where science struggles to provide guidance as to whether an ‘injury’ is caused by negligence or not.  Because of the constraints on the way Mr Ellis’ argument on appeal was run (no doubt for good reasons, though I am not privy to them), this issue was also not explored by the Court.

The High Court has now heard argument concerning this important (potentially ground breaking) decision and we are now in the Court’s hands, for their decision.

The transcript of argument can be found here.  Although reading the transcript is not the same as hearing 1st hand, it seems Bret Walker SC had a torrid time, at least from some members of the Court!  

Interestingly, and this is close to a common concern in medical negligence claims, emphasis was placed by him on the capacity of the negligent party to know the information from which firmer conclusions about whether "A caused B" could be drawn.  It is often the case in medical negligence claims that when it is difficult to prove whether negligent medical care caused a particular bad outcome, that frustration is felt that the answer to such question would be known with certainty – if only the negligent care hadn’t occurred (eg if the negligent failure to diagnose the breast cancer hadn’t occur, we would have known whether there was or was not lymph node spread etc).

It seems to me that at least the more outspoken members of the Court during argument, expressed considerable scepticism at the approach of our Court of Appeal, in accepting that the Plaintiff’s exposure to asbestos had contributed to his lung cancer, even though at least some evidence suggested it was 100 times more likely his cancer was a consequence of his smoking.

It also looks to me that the Court may be contemplating narrowing the traditional degree of contribution from negligent (or other tortious) conduct to an injury, for liability to arise.  

Traditionally, enough was shown if negligent action made a "material" contribution, which has often been accepted as met, when the contribution was more than negligible.  

in other words, if the Court accepted there were multiple causes for injury or illness, damages would be awarded if one of such causes was due to negligence (even if it was a minor or secondary cause – and even if it was likely the injury/illness may have occurred even if no such negligence occurred).  Further (and this has always been the difficult part to this, for me conceptually!), liability would then be for the entire consequences of the illness.  There would often not be a substantial reduction in the damages awarded, for the chances the same outcome would have occurred, even if the negligence had not occurred.

From my reading, several members of the Court were grappling, during argument, as to whether for a contribution to be ‘material,’ and so liability and damages follow, a greater extent of contribution should be required.

It will be interesting to see how the dynamics of argument translate into the Court’s decision.

As a footnote, have to say I liked Justice Gummow’s comment, when the submission was put that deciding whether a factor was or was not a cause of disease, was a matter of ‘logic,’ that:

"Logic itself is a house of many mansions"

Entirely as expected, the High Court on Friday granted special leave for the appeal in the recent NSW Court of Appeal decision in Gett -v- Tabett.

The High Court will now, sometime in 2010, decide whether damages should be recoverable for a loss of a chance of a better outcome from medical treatment, where such lost chance (lost due to negligent medical care) is < 50%.  

See my earlier post for more details of the NSW Court of Appeal’s decision on this point, which created conflict between NSW and Victorian Law and uncertainty for the rest of the country.

With this issue and the complex causation issues that will be considered by the Court in October in Amaca/Ellis, the High Court will have an opportunity to set the legal position with wide ramifications for those involved in the medical negligence area of litigation across Australia.

I recently gave some thought (amongst other things, I had to, I had agreed to present a paper on the topic…),  as to what this recent Court of Appeal decision in New South Wales is going to mean in the medium term for claims in Western Australia.  It seems likely the period before the High Court gets its say, will be another 12 – 18 months.

In Gett, in brief, the New South Wales Court of Appeal decided that even when a Dr or hospital is found to have been negligent, damages could not be awarded in that State for loss of a chance of a better outcome from more appropriate medical treatment when the chances of this occurring were less than 50%.  In other words, if a Dr is negligent, and this may have worsened the outcome for the patient, damages can only be awarded if this chance of a better outcome (if the Dr or hospital had not been negligent) is > 50%.

In Gett, the chance of an improved outcome was put as 15%.  Because of the Court of Appeal’s decision, the patient was found entitled to no compensation at all, despite the fact the medical care was accepted as having been negligent (and their resulting disability was very severe).

The decision was based upon a careful and thorough analysis of past case law, from which the Court concluded that such damages should not be awarded, according to established doctrine.

Gett’s decision is contrary to the previously accepted position in New South Wales and is contrary to the position in Victoria.  It now creates uncertainty as to whether Western Australian (and the other) State Courts should follow the New South Wales or Victorian position.  

As stated, this position will ultimately be determined by the High Court of Australia’s decision on the topic (it is almost certain that it will now have to look at the issue, given the divergence between the States’ Courts).


Continue Reading Gett -v- Tabet – Loss of a Chance of a Better Medical Outcome – is it Lost?