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Following on from my earlier post, because of the uncertainty that remains as to when a settlement becomes binding, if there is urgency, the uncertainty should be removed by express agreement.  This is illustrated by a case resolved a month or so ago for  a 59 year-old woman tragically suffering from terminal cancer.

Her claim related to a failure to arrange follow-up on a colonoscopy she had undergone in early 2007.  Histopathology from the colonoscopy demonstrated pre-cancerous changes and ought to have prompted follow up and further investigation. By the time of my client’s diagnosis with cancer in late 2011, no effective treatment was possibly and she was receiving palliative care.

The case was settled on reasonable terms at a mediation conference in April 2013.  The defendant and its insurer deserve considerable credit, given this was arranged on an expedited basis because of our client’s precarious health.

Because of my client’s ill health I was careful enough to stipulate that the settlement of the claim was to take effect immediately at the mediation and not to be subject to completion of settlement documents etc.

Very tragically, our client died on the Friday following the mediation conference. No opportunity existed for her to sign the relevant settlement documents before her death, though we spoke to her + so she knew the settlement that was achieved.

Fortunately (if there can be any fortune in such situation), given the term of the settlement mentioned above, the relevant compensation payment will still be made and will provide considerable benefit to our client’s immediate family.

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 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)

After what I have felt has been a slow start to year, in terms of important medical negligence case law, 2 important decisions in 2 days…

On Monday, as reported, the NSW Supreme Court delivered the long awaited (it seems 15 months from trial to decision) decision in Waller v James, the equally unfortunate, as it transpires, case spin-off from Harriton v Stephens, the wrongful life case in which the High Court held no damages could be recovered by the child who would not have been born (because his parents would have terminated the pregnancy), had there not been negligence in the antenatal advice.  In Waller, Justice Hislop dismissed the allegations of negligence against IVF doctor Dr James.  He made a number of important findings relevant to the assessment of damages in such cases, on topics prior to this point undecided (particularly, whether compensation should be paid for ‘normal’ parental services provided to the child).  I will post a more detailed summary of this case shortly.  It will be interesting to see whether the case is appealed.  The stakes seem high enough to make this likely.

Then today, the High Court delivered a unanimous decision,dismissing the appeal in Wallace v Kam, the NSW case I have written about previously, concerning an action for failure to warn of significant risks of complication.  Once again, I will write a summary of such case, when the reasons of the Court are published.  In the meantime, by the Court’s published case summary, their decision hinged on their conclusion that:

“Mr Wallace was not to be compensated for the occurrence of physical injury, the risk of which he was willing to accept.”

Of course the converse argument, not accepted by the Court, was that Mr Wallace suffered a serious complication from an operation he would not have agreed to undergo, had Dr Kam properly warned him of the risks of it.  It will be interesting to see how the Court reached its conclusion.

Interestingly, I have, in the last 6 to 12 months noted a drop in the number of medical negligence and other personal injury claims proceeding to trial  (it has to be said with some personal frustration/disappointment).

Traditionally my advice to clients has been that, if they obtain a supportive expert opinion critical of the care in issue, the chances are somewhere between 5 and 10% their  medical negligence case may need to proceed to trial.  On the assumption that about 50 cases the firm handles proceed to pre-trial conference per year, traditionally a couple of cases would not be resolved and proceed to trial each year.

My anecdotal impression seemed supported by the recent decision by the Supreme Court to encourage plaintiffs in complex medical or other personal injury claims to consider initiating proceedings in such court.  Whilst such Court has had jurisdiction to handle such matters, until this point, they have tended to remit any cases brought, to the District Court (apart from asbestos related cases).

I note Bill Madden’s recent post confirming that this trend is not isolated to Western Australia and in fact across Australia.  The present best figures Bill cites suggest “only” 3% of medical claims brought in Australia proceed to trial.

When regard is had to those cases in which plaintiffs are poorly advised and do not have any credible prospect of their claim succeeding, those  involving incredible complexity of medical issue and/or fundamental issues as to primary fact, these figures should be very encouraging to potential plaintiffs.  Provided there claim is appropriately investigated and handled, the prospects of a trial being required to resolve such a claim, as these figures show, is very small indeed.

The further observation that can be made is that with so few cases proceeding to trial, traditional criteria for selection of Judges may need to be rethought.  If, in the vast majority of cases, the judge’s role is in effect to facilitate a process leading to a negotiated settlement, different skills may be required than the traditional trial role.  This observation has already been very apparent in relation to the contemporary role for Registrars in the court. Whilst 20 years ago this primarily involved dealing with contentious interlocutory disputes, their role (and consequent key areas for expertise and training) is today primarily in facilitating discussion between the parties through pre-trial conference and mediation processes.

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 you can gather, we have refreshed our website, moving to a Wordpress platform, which I am reliably advised allows for easier maintenance etc..  I hope you like it!  Feel free to provide any constructive criticism you feel appropriate!  I have promised myself that with the new site, I will finally get around to those information videos etc + am going to do a review generally of our content to make sure its as up to date as possible..

Also, the firm welcomes Ian Murray, as our newest recruit.  Ian has left the North of England’s winter for our current heat wave.  Ian has 5 years experience as a solicitor in medical litigation in the UK, working on both plaintiff and the defendant’s sides.  He is now going through the process for admission as a lawyer in Australia.  With Ian, Sue Hillman (articled clerk), Michal Kartuz (graduate: as she keeps reminding me, soon to be admitted!) + Tanya, we now have 5 legally qualified staff.

With our team, I am convinced that the firm is in its best shape ever to handle our clients’ work.  With Sue, Michal + Tanya having twin law/nursing backgrounds, we are well placed to provide the quality + service I would like.

Interested talk at the recent annual ALA medical negligence conference in Sydney at which a stroke expert discussed a 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…

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 continue 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.

Thanks to my friend + colleague Bill Madden for his interesting report on the most recent report as to incidence of medical negligence litigation in Australia – see here for his report. As this shows, the number of claims is relatively stable and very modest indeed. As no doubt Bill would agree, this report tells only part of the story. The incidence of claims being lodged for compensation is from all previous studies only a tiny fraction of the number of actual serious adverse events in Australia’s health care – the number of patients who could, if they wished and felt able to do so, pursue claims.