In the decision Espinos v Popovic published by Judge Braddock on 8 August 2018, the run of successes by plaintiffs in  medical negligence claims continued.  Her Honour awarded damages to Mr Espinos in his claim against deceased neurosurgeon, Emile Popovic, in the sum of $4,817,311.

These are very high damages for a claim for negligent care surrounding a spinal fusion operation for a 55-year-old self-employed man, who, it was conceded, was appropriately advised to undergo a fusion at L5/S1.

The case provides an interesting and helpful summary of technical aspects of performing low back spinal fusion surgery, a common source of complaint and medical negligence claim.

Her Honour was obviously impressed with evidence given by local neurosurgeon, Andrew Miles, concerning appropriate technique intraoperatively and concerning the recurrent issue of malpositioned pedicle screws.

The case is a bitter reminder of the harm that can be caused by malpositioning of such a screw, even for a relatively short period of time.  In this case, it was ‘only’ 9 days before Dr Popovic repositioned the relevant S1 level screw.  Nonetheless, during such 9 days, it caused damage to Mr Espinos’ nerve causing permanent debilitating right leg pain which persisted even after such screw was repositioned.

The unhappy story for Dr Popovic was made worse by the fact that his initial surgery mistakenly fused the L4/5 level and stabilised the L3 level above.  This was performed despite it being clear the plan, and Mr Espinos’ consent, had been to a fusion at L5/S1.  Not surprisingly, it was admitted that Dr Popovic was negligent in operating at the incorrect level.  It was however denied that such initial surgery had contributed to Mr Espinos’ long-term poor outcome.

The most interesting aspect of the case from my perspective was Dr Miles’ evidence concerning the measures that should be taken intraoperatively and post operatively to avoid a malpositioned pedicle screw.

Her Honour rejected the commonly run argument that malpositioning of a screw is an accepted complication of such surgery and can occur even in the best of hands.  This was rejected because it was accepted that incorrect positioning could occur, but should be appreciated and rectified intraoperatively, particularly given the availability of modern 3D imaging in theatre at the relevant hospital (the Mount) and in any event, very shortly thereafter via appropriate post-operative imaging. 

This goes further than most cases – in which an initial failure to appreciate a malpositioned screw has been accepted as an unfortunate, but not negligent error.

In relation to Dr Miles’ evidence, see, for example, his clear explanation at paragraph 91 concerning the cause for damage to the relevant nerve if a screw is malpositioned in the nerve canal.  Further, in relation to the appropriate intraoperative steps to avoid a malpositioned pedicle screw, see at paragraphs 96 – 99.  He stated: “it is fairly obvious if a screw is badly malpositioned on intraoperative imaging, particularly 3D intraoperative imaging.

In relation to the benefits from intraoperative imaging, the defence neurosurgeon Mr Rogers, quoted at paragraph 128, accepted that the risk of screw malpositioning using traditional intraoperative image guidance varied from 1.6% to 6.4%.  He accepted with that with intraoperative CT imaging the result should be a return to theatre of 0%.

Also importantly, Dr Miles’ view, which Her Honour accepted, was that it was not sufficient, as the defence claimed, for a neurosurgeon to rely upon the assessment of post-operative imaging by the radiologist.  Such radiologist had not reported the malpositioning of the S1 pedicle screw, despite it being clear.

The surgeon was obligated to review the imaging first-hand and to make their own assessment and conclusions concerning the relevant screw’s positioning, et cetera.

Interestingly, it seems no contribution claim had been brought by Dr Popovic against the relevant radiologist for their failure to report the malpositioned L5/S1 pedicle screw.  The absence of such a claim perhaps indicated an acceptance of the attitude expressed by Dr Miles, that a neurosurgeon has primary responsibility to review the relevant imaging in any event, and it was a poor excuse to assert the radiologist’s failure to mention malpositioning had caused a failure to act more quickly.

Nonetheless, given Her Honour’s finding, a contribution would probably have been found against the radiologist, had such claim been made (because had they reported accurately, this would have ‘caught’ Dr Popovic’s error of either not reviewing or in missing the malpositioned screw).

All in all, a favourable decision from the patient’s perspective + confirmation this type of neurosurgical adverse outcome are (and should be) hard to defend.

 To complete the journey, can confirm that the special leave argument on this case, mentioned in earlier posts, was dismissed by the High Court on 16 August 2013.  The court did not required counsel for the respondent to make oral submissions…  Clearly they believe the Court of Appeal got it right..

 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.

 I have recently had a couple of cases raising this issue, which arises from time to time, of when does a settlement actual become final + binding (so neither party can withdraw).  I will cover the issues in 2 separate blog posts.

The first case involved a relatively modest settlement of a plastic surgery related case, arising from botched breast reduction surgery.  My client agreed to a relatively modest settlement offer made by the surgeon’s insurer, only to then have misgivings when the settlement documents were provided to her to sign (about 10 days later).  In my view the settlement was close to the amount she would be likely to be paid if her claim proceeded to trial and for this reason I had recommended it.

The client advised me she literally could not bring herself to sign the paperwork to give effect to the settlement, because she felt the doctor was getting away with it + had not been made properly accountable for what he had done.  

Unfortunately this is a common and recently, ever more frequent conclusion by clients, when their claim primarily involves compensation for non-financial loss: pain, suffering and disfigurement, loss of enjoyment etc.  The modesty of our court’s awards of compensation and the loss of the first $18,000.00 of compensation for such part of the claim, due to the Civil Liability Act, now frequently leaving clients unhappy and feeling poorly heard and their suffering under valued.  In my view, there is nothing unreasonable with these sentiments. The Civil Liability Act deductible, in particular, is grossly unfair, mean spirited and utterly unjustifiable.

As I advised her, in my view, though there is no absolute certainty, in hers, like most cases, a binding settlement was reached at the time oral agreement to settle the claim occurred + is not delayed or conditional upon signature to the settlement documents.  As such, she could not back out of the settlement: though if she tried, it may be the insurer would permit this + her claim could proceed.

The issue is one of intention: Is there intent that the agreement will be binding or does it need the documentation as well?  In cases in which the documentation is pro forma + contains nothing unexpected, generally the answer I think is ‘yes’ immediately.  There is nothing unique about medical claims.  The same applies in other types of personal injury cases (though exceptions apply in relation to claims subject to the court’s approval: Workers Compensation redemptions + claims for children or other persons under a disability + quite often in commercial cases, there will be important detail in the written contract to be negotiated, so no final settlement will arise before such document’s terms are agreed and signed).  It is an application of the principles discussed in Masters v Cameron (1954) 91 CLR 253.

As I advised my client, even if there is uncertainty, from a practical perspective, if she wished to seek to withdraw from the settlement, it was unlikely I would be able to continue to represent her.  This is because, if the surgeon’s insurer sought to rely on the settlement in answer to the claim, I would be a likely witness in relation to such settlement and so could not continue to act for her.

Lesson to learn: make sure you have made up your mind before instructing your lawyer to accept an offer (or to put an offer that may be accepted + so lead to a binding settlement agreement)

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.

The NSW Court of Appeal, on 13 April 2012 handed down its decision in relation to Mr Wallace’s claim against neurosurgeon Dr Kam. The case sought to challenge the accepted position in relation to failure to warn cases. Following the High Court’s decision in Rosenberg v Percival, it has generally been accepted that to succeed in a case alleging a failure to warn on the part of their surgeon etc, it was necessary to show:

  • the risk of the type of complication the patient suffered was such (by a combination of its seriousness if it eventuated, it’s probability and the patient’s realistic options other than proceeding with the treatment) likely to be considered of significance by the patient in deciding whether or not to undergo the proposed treatment;
     
  • no warning of such complication was provided;
     
  • if the warning had been provided, the patient would not have proceeded with the treatment, at least not at the time and place they did.
     
  • the risk that ought to have been warned about (but was not), then occurred.

In Wallace, the 4th of these requirements was sought to be challenged.  It was claimed to be sufficient if a warning of a risk of complication had not been given, that would have convinced Mr Wallace not to proceed with the surgery, even though it was not this risk that occurred, but rather another risk, that whilst also not disclosed when it ought to have been, was not such as would have convinced Mr Wallace not to proceed with his surgery (because it was so unlikely) – yes, even I had to read this several times before understanding it…

It was argued that Mr Wallace should be compensated for serious complications caused by surgery he would not have undergone, had Dr Kam appropriately warned him of the risks (plural) it involved. When put that way, it is easy to see the appeal of Mr Wallace’s claim ( see particularly the convincing reasoning accepted in Moylen’s case [117] per Lord Caplan).

Unfortunately for him, the Court of Appeal, it has to say with some hesitancy, obviously considerable careful thought and analysis, with 1 of the 3 Judges dissenting, affirmed the conventional position and concluded Mr Wallace’s claim should fail.. Nonetheless, on my reading, the Court made clear that, in part due to the Civil Liability Act’s introduction, the position is not as clear cut as perhaps previously believed. That this is the case is obvious from the divergence of opinion among the 3 members of the Court.

An intriguing question that occurred to me is: what would have happened if the case had been run focusing not on the scientific question of the risks of the operation, but more practically, upon the warning the surgeon ought to have given?  Whether such warning would embrace the risk that eventuated. It occurs to me that in practice, it may well be that a surgeon would be likely to discharge their duty to warn of the risk of various types of nerve injuries by such a single warning, embracing both the form of injury Mr Wallace suffered and the more serious risk.  If it was the same warning that ought to have been given, that was not, which would cover both forms of nerve injury, conventional theory would suggest Mr Wallace ought to have succeeded.

 

This much anticipated decision was delivered by Judge Goetze on 25 May 2012. As widely expected, Judge Goetze found in neurosurgeon Michael Lee (and paediatric oncologist Dr Baker’s favour) and dismissed Daniel Jordan’s claim.

The case is interesting as it raised the question of the obligations upon a surgeon (or other medical practitioners) to advise a patient of alternatives to their preferred approach to medical care.

It was not in issue that Michael Lee acted reasonably when, following diagnosis of Daniel’s brain tumour in 1996 (when Daniel was 11 years old), he advised that in his view the risks of surgery at that time outweighed the benefits to be gained from surgery (see [37]).

The crux of the case put on Daniel’s behalf was that Mr Lee (and Dr Baker) were negligent in failing to advise that other competent neurosurgeons would have performed such surgery and that it was the first choice for curative treatment of such tumour (see [8]).

Put another way, it was argued that the doctors had an obligation to advise Daniel + parents of the fact that although they would not recommend it, other surgeons would, even if such surgeons were ‘avant garde or radical’ ([38]). This was initially premised on a claim that the doctors had been specifically asked this question and had indicated there were not. This was not accepted by Judge Goetze.

The matter was left therefore to be a question of whether absent such a specific question, a surgeon had an obligation to advise that other neurosurgeons’ acting reasonably, contra their view, would recommend surgery.

Such obligation was not accepted as arising by Judge Goetze. Primarily, this was a factual conclusion by him that there were not such surgeon’s who would have reasonably recommended earlier surgery for Daniel. This involved his rejection of the evidence to the contrary given by Charles Teo, neurosurgeon.

2 general observations about the case are:

  • The importance that the case as put in opening is supported by the course of evidence. In this case there was a divergence between what was said would be put forward by Daniel’s team + what evidence actually then followed.
     
  • The onus upon an expert witness. Regardless of how well qualified, an expert will be of little use (or weight) if they are not prepared or able to put the time and effort into case preparation, in terms of review of the relevant scientific literature + preparedness to fully backup their opinion’s basis, both in terms of the science + a detailed understanding of the facts of the particular case..

 

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 …. 

Maintaining the sobering record of Plaintiff claims based on informed consent, is a recent South Australian case, Coombes v Katsaros [2011] SADC 93.

The claim concerned alleged complex regional pain syndrome ("CRPS") said to have arisen following hand surgery.

The key to the Plaintiff’s claim was his assertion that he ought to have been warned of the risk that such hand surgery, which was indicated, but not essential, could cause CRPS and so further suffering.

Evidence at trial was given suggesting some hand surgeons would provide such a warning, whilst others would not. The evidence as to the incidence of such complication was not clear, but accepted by the trial judge as occurring in a severe form in perhaps 1 in 2,500 cases.

In the circumstances, Judge Millstead was not convinced the Defendant had a duty to warn of such risk (see @ [267]). Interestingly, Judge Millstead appeared to place significant weight in his conclusion, upon the absence of any specific questioning by Mr Coombes concerning risks with the surgery.

The implication is that perhaps had he appeared more cautious about proceeding, questioning the doctor as to what may go wrong, a duty may then have arisen to warn of the complication that occurred.

Mr Coombes case therefore fell at the first hurdle. Given Judge Millstead’s conclusion, it would have failed at the second (and more onerous) stage, assuming a duty to warn of the relevant risk arose, of showing that such a warning would have lead to the patient refusing to proceed.