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.

 As a post-script to my post a couple of weeks ago, I confirm that Judge Schoombee has handed down her decision in Lola Phillips’ case.

This confirms that whether or not negligent care was before or after the Law change in November 2005, the date from which time to make claim starts to run is now determined by the 2005 legislation. This means that patients suffering a latent injury before 2005 can bring claim if they are able to show that it is within 3 years of their latent injury becoming evident/manifesting. Further, if such manifestation occurred after November 2005 they can potentially seek an extension of time to bring claim if they can meet the other requirements necessary for this….

On such topic, a case to be argued later this week will hopefully shed further light on the Court’s approach to such extension applications and the extend of the Court’s discretion to do so.

An update on 24 June 12, to confirm that the defendant has given notice it will appeal this decision, so the matter will proceed to be considered by the Court of Appeal

 Just a short note that argument has taken place before Judge Schoombee in relation to this question, in the matter of Lola Phillips v Min for Health. As expected Judge Schoombee reserved her decision..

The key facts in the case are:

1) Lola was born in March 2002, and was born with congenitally dislocated hips.

2) Lola’s case alleges negligent child health care by a community nurse, in failing to act on a finding of ‘clicky hips’ at a review 10 days after her birth.

3) it is alleged that it was not until Lola began kindly in 2006 that the problem with her hips was noticed. By this time it was too late for effective treatment and despite surgery Lola has significant long term disability. Had treatment been arranged in 2002, it is likely such disability would have been avoided, with simple conservative treatment.

If the 2005 changes to the law apply to Lola’s claim, the time when her time for claim began to run is 2006, when the problem with her hips became apparent (and her case is brought within time).

There is no question that before such changes in the Law in Nov 05, Lola’s claim would be taken to have accrued and so time was running even before identification of the problem. The injustice of this was a well recognized reason for the law’s reform in 2005.

The question in issue is whether the changes in 2005 retrospectively benefit claimants like Lola. In my view, perhaps predictably, the 2005 changes are retrospective and Lola may rely upon them. Only time will tell whether Judge Schoombee agrees….

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 came across an interesting point today, while working on a tragic case arising from the death of a relatively young women, who’s son suffers from (and prior to her death suffered from) a serious mental illness.

Following the women’s death (which we allege was caused by negligent medical care), claim is made on behalf of the son for loss of the financial + non-financial support + services his mother would have provided, had she not died.  

These services range from assistance with medication through to transportation and reminders to change clothing etc.  They are now provided in part by his father.  In part he now does not receive such services.

in claims in Western Australia (and most States) compensation for provision of services provided free of charge (gratuitous) is limited by reason of the Civil Liability Act (section 12).  The interesting point is that such section does not appear to apply to compensation of the type sought in this claim.  

The claim is not for damages for services needed and provided because of an ‘injury’ my client has suffered.  Rather, this claim is for loss of services that would have been provided to him, had his mother survived.  The need for these services does not arise from her death.  It predates this.

Anyway, just a tip to anyone handling these Fatal Accidents claims, of this ‘wrinkle’ in the assessment of damages in such inevitably tragic claims.

An interesting recent case has illustrated (again) that the merits of a settlement, can often involve more than just a question of the overall total settlement sum agreed to be paid.

Upon settlement of medical negligence (and other personal injury) claims, there are a series of standard potential deductions from our client’s total settlement figure, which must always be borne in mind (and appropriately calculated or estimated ahead of time if possible). These include:

1) medical expenses for extra treatment due to the negligent medical care. Refunds will often be required to Medicare + any private health insurer (Medibank Private etc). Calculation of such recovery figure(s) can be very uncertain and complex.

2) Centrelink. If benefits have been claimed because of incapacity due to the negligent medical care, refund will often be required. Importantly, depending on the circumstances and particularly the scale of the settlement, there may often also be an effect on future receipt of benefits.

The recent case I have handled, illustrated another consequence, applicable at least in Western Australia. This is the fact that if the client is sufficiently disabled as to have qualified for public housing assistance, a strict means test applies in relation to eligibility for such assistance. In most cases, this is about $50 – 100,000.00 in assets.

In my case my client, who had suffered disability following a sub-arachnoid haemorrhage, was in receipt of such housing assistance for her family.

In the circumstances of her case, it was not in her view (understandably) in her best interests to receive a settlement in the order of $250 – $500,000 because this would render her ineligible for ongoing housing assistance and require that she vacate the family home. She therefore was prepared to accept a settlement offered by the insurer which would result in a net payment to her of just under $100,000.00 because she felt better off receiving this lesser sum and maintaining her home eligibility, rather than seeking a higher figure, but then being required to seek alternate accomodation.

As I say, a timely reminder that the total damages paid in a settlement in some cases is not the measure of how beneficial it is. The settlement’s impact upon receipt of government benefits should be carefully assessed, if clients are to be best served by their advisors/representatives.

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).

 Working this afternoon on a claim for a client who suffered serious complications as a consequence of gynae surgery, performed by a surgeon who has recently (and previously) been the subject of disciplinary action by the (now defunct) State Medical Board.

The interesting question that arises, following my client learning of such disciplinary action which preceded her contact with the surgeon, is whether the surgeon was obliged to inform her of such action and the then restrictions upon his surgical services. These did not directly apply to the form of surgery she was contemplating, but nonetheless, understandably, she says that she would have liked very much to know of such restrictions and had she, would not have had the surgery performed by the surgeon in question (you can no doubt imagine the less neutral manner in which she expressed this…).
In my view, though I suspect all but universally ignored, a duty should arise for a doctor in such circumstances to inform their patient of such action + resulting restrictions.  Rogers v Whittaker defines the health professional’s duty as one to communicate the information "a reasonable person in the patient’s position would be likely to attach significance to" (the objective test) or which the doctor should suspect the particular patient would attach significance to (the subjective test).
In my view a compelling case can be argued that any serious disciplinary sanctions against a doctor or restrictions on the range of services they may offer, is something a patient is likely to attach significance to (an understatement..), in deciding whether to proceed with proposed surgery.
Interestingly, such a position is supported by one of the ‘old’ Phil Hardcastle cases, Nunn v Hardcastle, in which Deane DCJ found that the surgeon ought to have informed the patient of the fact a moratorium had been imposed in relation to the particular operation at St John of God Hospital, so the surgery was performed at an alternate hospital
Let me know if you have a view one way or another on this issue – which is obviously related to the equally thorny issue of whether medical practitioners should disclose their relative complication rates etc, compared to their colleagues in a given filed (lap choli’s being a well known example).

A couple of weeks ago I attended a CPD presentation dealing with the new scheme for National Registration + Regulation of the majority of the health professions. It is beyond doubt that this is a good idea, in terms of consistency of practice registration.

One interesting aspect of the reforms that I was not previously aware of, and which I see as having potentially interesting longer term consequences, is the ‘new’ National body’s capacity to set standards for medical and other practice.

It occurs to me that this could develop into a challenge/supplement to the College’s self-regulation of the specialties. It could for example, allow regulation as to those surgeon’s permitted to perform cosmetic breast surgery, bariatric surgery etc + set minimum standards of experience and training for such areas of work. Another alternative may be to set standards in terms of disclosure of surgical results/complication/infection rates etc.

Given the College’s understandable competing interests (and those of their members), this may present a valuable opportunity for consumer interests to be given voice.

One of the most emotionally demanding, complex and ultimately, often rewarding categories of case handled by medical negligence lawyers, are those cases arising from a negligent delay in diagnosis of cancer. At any one time, I am generally acting in 4 or 5 such cases.

Following the High Court’s decision earlier this year, in Tabet v Gett [2010] HCA 12, uncertainty has been expressed, particularly by those representing medical defence organisations, as to the recovery of compensation in such cases.

I thought it interesting to conduct a ‘straw poll’ of lawyers (and others) reading my blog, as to whether they think recovery will be possible, in the following categories of case, following Tabet.

As can be seen, the categories depend on the assumed expert opinions as to the likely effect of the relevant delay in relation to the client/patient’s outlook. I think these categories cover the ambit of such claims commonly seen. In each category it is assumed that there has been negligent care and this has caused the delay in diagnosis and treatment of the cancer – for argument’s sake, lets assume a 12 month delay. As can be seen, I have sub-divided the categories into 2 categories, being those in which recurrence/spread of cancer has occurred v those in which it has not (but potentially may do).

The categories are:

Where Recurrence of Cancer Has Occurred and it is likely the Client will not survive

In the first 3 scenarios, recurrence has occurred and the client/patient is likely to die from their cancer. In this group, the 3 scenarios are:

  1. where it is likely (more than 50% probability) that if diagnosis had occurred at the time it should, the cancer would have been successfully treated and the recurrence/spread would have been avoided.
  2. Where it is less than a 50% chance that earlier diagnosis, when it should have occurred, would have led to successful treatment and avoidance of the recurrence/spread. In such category there is nonetheless an appreciable chance (though less than 50%) that appropriately timed diagnosis and care would have altered the tragic outlook.
  3. the same scenario as (2), but were the chance of successful treatment and a different outcome, had appropriately timed diagnosis and care occurred, is only very small (<5%).

Where No Recurrence of Cancer has Occurred

In these 3 categories, no recurrence has occurred yet. In this group, the 3 scenarios are:

  1. where it is a better than 50% chance that recurrence will occur in the future (say within 5 years). It is also likely that if diagnosis had occurred at the time it should, the cancer would have been successfully treated and the risk of recurrence/spread would have been very much less (and < 50%).
  2. Where it is less than a 50% chance that recurrence will occur in the future, but this chance is greater than it would have been, if diagnosis had occurred at the time it should, and such difference in likelihood is significant (say 25%).
  3. the same as scenario (2), but the difference in likelihood of recurrence is small (say < 5%), in other words, the effect of the delay in diagnosis and treatment has been a slightly increased chance that cancer will recur in the future (though the overall chance remains < 50%).

It will come as no surprise that I think recovery should occur in all such categories, though obviously its quantification will vary greatly depending on the category:

Let me know your views on whether damages can be recovered in each of these 6 scenarios, anonymously if you like. I will (assuming I get a reasonable number of replies!), post a blog entry summarising the consensus of views expressed.