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This is our blog.  It contains most posts Julian makes at his own blog http://www.westaustralianmedicalnegligence.com, along with posts relating to the firm specifically: If Julian can convince them to do so, it will also include blogs by other staff!

The continuing debate : “natural” v caesarian modes of delivery

I read with interest the recent article in The Guardian provided an update as to the ever escalating rate of cesarean section births in Australia. The article makes all of the well-known [predictable?] arguments in favor of natural delivery.
It is true, the divergence between cesarean section rates in Australia and the World Health Organization’s recommended rate is remarkable.
Unfortunately, what the article does not do (and much of the debate ignores), is a ‘risk-benefit’ comparison of the two options of cesarean versus a natural delivery (in other than high-risk pregnancies). The truth is that there are risks (and benefits) involved with either option. While public perception in this century tends to ignore this; the simple fact is that childbirth is not [yet] a risk-free process, whichever mode of delivery is preferred.
The most interesting issue, not tackled by the article, is why the divergence of rates?
This must result from the relative weighting applied to the pros and cons of the two alternatives, by contemporary Australian society [and mothers]. Obviously, such weighting diverges from the weighting the WHO considers ‘appropriate.’  The really interesting question is what are the factors leading women to increasingly frequently choose caesarian as their mode of preference?
The law in Australia has for a long time (and in the UK more recently) recognized that healthcare choices, including mode of delivery, are for the patient to make, on a properly informed basis. They are not to be dictated by the health professional, the WHO, or population-based policy, at a government level. This is complicated by the fact that the mother is actually making a choice for 2 rather than 1 person. An intriguing (near unique) legal issue is the question of the mother’s obligations when making such choice to weigh the competing pros and cons from her and her child’s perspective. It is clear that in some respects, the unborn child’s interests may point towards one option while the mother’s preference may lie elsewhere.
The “appropriate” rate for cesarean sections in Australia is to be determined by the rate at which properly informed mothers make their choice, one way or the other.
If there is concern at such rate, the ‘answer,’ if there is one, is to better educate parents, to ‘assist’ them to make sensible decisions as to the weight to be attached to the respective pros and cons of one mode of delivery and the other. To do so, once again, requires that this information be clear. To me at least, this is not yet the case in this debate.

Appeal Court opens door to older claims being allowed (Dixon)

Western Australia’s Court of Appeal in its decision AME Hospitals PTY, Limited v. Dixon [2015] WASCA 63, delivered on 27 March 2015, confirmed, particularly relevantly in the medical negligence claims area, significant scope for persons to bring claim outside the basic 3-year time limit for claims, arising since November 2005 and the introduction of the Limitation Act 2005.

To be permitted to bring claim  beyond the 3-year time limit, Section 39(3) the Limitation Act 2005 provided that the person wishing to bring claim must establish that when the 3-year time limit expired they were not aware of one or more of the following (the emphasis is mine):

  1. The physical cause of the death or their injury;
  2. That such death or injury was attributable to the conduct of the person against whom claim is sought to be brought; or
  3. The identity of the person against whom the claim should be brought, despite reasonable inquiry.

In the Dixon decision all three members of the Court confirmed that for ‘awareness‘ of the above facts to arise, there, in effect, had to be a solid foundation/justification for belief. It was not sufficient for a suspicion or even, it would seem, an ungrounded or generalised conviction or belief to be held (eg that the hospital had ‘done the wrong thing’ in some way).

President McLure (with whom Newnes J.A. agreed) confirmed that where the “awareness” relates to a matter for expert knowledge or experience this will arise only when an expert opinion, reasonably capable of being accepted by a Court and capable of establishing the relevant facts exists, and is known by the person [41].

In practice therefore, in a medical negligence claim, to have awareness that an injury was “attributable to the conduct of a person” (the 2nd test above) will, in my view at least, almost inevitably require that an expert medical witness has expressed such a view and this has been made known to the claimant.  This is also likely to often be the case for ‘awareness’ as to the physical cause (an odd phrase) of an injury.

Buss JA in a separate judgment suggested that the necessary “awareness” must mean knowledge or belief “with sufficient confidence reasonably to justify, in all the circumstances, the commencement of proceedings against the proposed defendant on the relevant cause of action by the issue of a writ or otherwise.”

In a professional negligence context, such as a medical negligence claim against a doctor or hospital, it is hard to envision this point being reached before the claimant has been advised to do so by their legal advisors/representatives.  In our firm’s case at least, this will almost always require that a respectable independent medical expert has confirmed shortcomings in the relevant care and that this was a cause of harm to the patient.

In practice, this means that there will often be good prospects in medical negligence claims (other than the most straightforward), for seeking an extension of time to bring claim outside the 3-year time limit, where a client (the patient) delays seeking legal advice or investigation of the claim until outside this 3-year timeframe from their initial injury, or where provision of the expert opinion does not occur until this 3-year time limit has expired. This is very generous indeed and good news for our clients.

Two factors do however still need to be borne in mind in this context, before we get too carried away (!), being:

  1. There remains a 3-year outer limit for any extension from when awareness of the relevant matters ought to have arisen.  In other words, there needs to be some reasonable explanation put forward for substantial delay in looking into a claim and obtaining appropriate expert advice, etc;
  2. Further, capacity to seek an extension of time does not guarantee that it will be granted.  In particular, in the event that the doctor, hospital or other health professional can show prejudice because of the delay in a claim being brought, the Court remains perfectly able to refuse to grant an extension despite the discretion arising.

Somewhat disappointingly, the Court of Appeal did not provide any clear guidance in relation to a remaining difficulty with claims and figuring out time limits.  This is the uncertainty as to when the 3 year time limit begins.  This remains unclear because the meaning of Section 55(1)(b) of the legislation and what is meant by when the “first symptom, clinical sign or manifestation of personal injury, consistent with a person having sustained a not insignificant personal injury” occurs.  This determines when the initial 3-year period begins to run. As can be gathered, the meaning of these words is far from obvious…

UK adopts Australian Law to determine whether a warning of risks of treatment options should be given

The UK has recently altered its position in relation to the important question of a doctor’s obligations to warn their patients concerning risks of treatment.

Preceding the decision in Montgomery v. Lanarkshire Health Board [2015] UKSC 11, delivered on 11 March 2015, the UK had long maintained its acceptance of the so-called Bolam principle, reiterated in the mid 1980s by its House of Lords decision in Sidaway, that the question of what information a doctor was obliged to disclose to their patient, concerning risks involved in proposed treatment was essentially a matter determined by the medical profession. It was a defence to any claim that a relevant risk had not been disclosed, to demonstrate that other reasonable doctors would not have informed their patients of such risk.

The Supreme Court in Montgomery reversed this position and adopted the position that has existed in Australia since 1992 and our landmark decision in Rogers v. Whittaker.

The position in the UK, as in Australia, is now that a doctor’s obligation to disclose information relating to proposed treatment, including as to its risks, is determined by the question of whether the patient would be likely to attach significance to it in deciding whether or not to proceed with such treatment. If the patient would be likely to attach such significance, the doctor is obliged to disclose such information including as to the risk.

The test is “patient driven” as it depends on whether they would consider the relevant risk or other information significant in making their decision, rather than being ‘doctor driven‘ by whether the doctor thinks that they ought to attach significance.

There is some irony in the UK altering its position, given Australia has moved away from such ‘patient driven’ position in relation to other non-advice aspects of medical care, by the Civil Liability Acts.

The UK case is also interesting for obstetric care more generally.

The risk about which it was found warning ought to have been given, was the risk shoulder dystocia may occur if Mrs Montgomery delivered her child by a ‘natural’ or vaginal birth. It was found that Mrs Montgomery would have attached significance to this risk if warned of it. This had not occurred and so such lack of advice was found to have been negligent.

Mrs Montgomery was relatively small and a diabetic. While neither of these factors were particularly rare, they did modestly increase the risks of difficulty if such a dystocia occurred.  Mrs. Montgomery’s evidence was accepted that if warned of the risk of shoulder dystocia, even though this was unlikely and unpredictable, she would have elected to give birth via an elective cesarean section rather than a vaginal delivery.  Interestingly, the Supreme Court reversed the trial judge’s conclusion on this, which had been that a warning as to the risk of shoulder dystocia would not have led to the mother electing to proceed via a cesarean delivery.

This is a very common scenario in day-to-day obstetric care. There are very many patients of small stature and diabetic [whether gestational or otherwise]. The case appears to establish that in the UK at least, such patients need to be warned of a risk of shoulder dystocia because it ought to be accepted that such risk may be of significance to the mother in deciding whether to proceed via a natural delivery or ‘elect’ to have a cesarean.

The facts are an excellent example of the difference between the Rogers test and the Bolam approach.

It is also an illustration of why the Rogers test has been so unpopular amongst some medical practitioners who, rightly or wrongly, say the emphasis on patient autonomy potentially leads to patients making ‘wrong’ or poor decisions based on a flawed assessment (or in truth weighting) of the risks relating to their treatment options.

The crony (peer) defence takes a hit! (Mules v Ferguson)

I read with interest the Queensland Court of Appeals recent decision in relation to this matter. The Court of Appeal by a 2:1 majority overturned the trial judge’s earlier rejection of this medical negligence claim.

The case involved allegations of negligence against a general practitioner for failing to refer a patient ultimately found to suffer from cryptococcal meningitis. The patient suffered a catastrophic outcome due to such meningitis, including loss of sight and hearing. Damages were assessed [provisionally] at over $6.7 million by the primary trial judge.

The trial judge concluded that the GP had been negligent in not completing a careful neck examination and inquiry as to the patient’s progress, when she attended repeatedly.

Nonetheless, the trial judge dismissed the patient’s claim on the 2 basis that:

  1. Causation: even had the GP done what she ought and completed a careful neck examination and inquiry as to the patient’s headaches, etc., in the particular circumstances, such further steps would not have raised sufficient concerns to result in the patient being referred for a neurological review/assessment in time to receive treatment avoiding her catastrophic outcome.
  2. Peer Defence: Although he concluded the GP was negligent and should have completed a careful neck examination and further questioned the patient, he considered such GP had made out a defence under the Civil Liability Act on the basis that she had acted in a way, which was widely accepted by peer professional opinion.

The case is interesting in that as far as I know it was the only Australian case in which a trial judge has found that a medical practitioner’s care was negligent, but nonetheless excused it on the basis of such “peer defence.” This struck me at the time as an odd conclusion: in a way, the trial judge accepted the GP should have done something, but because a bunch of colleagues wouldn’t have done it either (and therefore, not surprisingly, thought she had acted reasonably), excused her..  I hate this defence!

Pleasingly for the patient, the Court of Appeal overturned the trial judge’s conclusions on each of these 2 points.

The appeal primarily centered on a careful review/analysis of the evidence as to whether, had the GP completed the examination and further inquiry she ought, this would have triggered an early referral. By a 2:1 majority the members of the Court of Appeal concluded [contrary to the trial judge] that it would.

The trial judge had accepted that if such a referral had occurred, the patient would have acted on it expeditiously and treatment would have taken place which would have avoided the catastrophic injuries she suffered due to her meningitis.

The members of the Court of Appeal also overturned the trial judge’s acceptance of the “peer defence”.

Interestingly, for future reference, the decision makes clear that for such a peer defence to be made out, the medical practitioner’s experts must confirm that the doctor’s conduct on the facts as found, was in accordance with peer professional opinion. It is not sufficient for experts to simply make a broad sweeping conclusion or to do so based on the medical practitioner’s claims as to what the patient told them and what they observed (if such claims are then [as here] not fully accepted).

The case highlights that making out such a peer defence will be quite a difficult and complex evidentiary task for defendants and their advisors. Where there are important primary disputes as to what took place during the relevant consultations, etc., the defence team will need to ensure confirmation of support for a peer defence across the cross section of likely findings open to the judge. Such likely findings may not be something necessarily obvious prior to the commencement of trial.

Predictably perhaps, in my view it is appropriate that this defence is given narrow application, once a trial judge is convinced that care was negligent – the situations in which doctors should be excused for failing to show reasonable care, because of peer practices, should be rare indeed..

The uncertainty consequences of delay in diagnosis of cancer

I read with interest recent medical literature, reporting on research at Johns Hopkins, emphasising the role of a 3rd factor in cancer incidence.

Debate has traditionally focussed on the ‘environmental -v- hereditary’ nature of many cancers.  New research, as reported, has confirmed that ‘luck,’ bad or otherwise, appears to be an even more important factor.  Random DNA mutations during cell division have been found to explain 2/3 of cancers in adults.

Such research findings, emphasise the role of early detection in cancer care, given the unavoidability of luck, one way or another.

Apart from in cancer’s initial occurrence, several recent cases we have/are handling have emphasised the ‘luck’ element, not just in whether cancer arises in the first place, but additionally in its response to treatment and recurrence.

Sadly, at any time we handle 10 or more cases involving inappropriate delay in diagnosis of cancers.  The harm caused by such delay is often the growth and maturation/progression of the ‘missed cancer,’ often most importantly impacting on the statistical probability of such cancer responding to treatment – or recurring.

A couple of cases we have looked at in the last year have emphasised that whilst statistical information, based on staging of cancer at diagnosis, is often the best method for assessing the effect of an inappropriate delay in diagnosis and treatment, it needs to be remembered that individuals may or may not conform to such statistical predictors.

In the first case, given the type of cancer and its very early staging, statistically, our client should have had a very good chance of survival + so the delay of 12 months in diagnosis/treatment should not have caused significant harm.  Sadly, to the contrary, within months of engaging us, our client was found to have extensive metastatic spread and her outlook now is grim.  From a claim’s perspective, our independent oncologist confirmed that knowing what we know about the aggression of the cancer cells in this unfortunate patient, it remains unlikely that the 12 month delay made any difference: even with diagnosis 12 months earlier, it is likely her cancer would/had spread.

In a second case, the exact opposite occurred.  The type and staging of cancer at diagnosis was advanced and likely to be aggressive, with a resulting poor outlook for our client.  In contrast, diagnosis 2+ years earlier, at a significantly less advanced stage on statistical grounds should have resulted in a far better outlook.  On the other hand, our client has [thankfully] already survived 3.5+ years since diagnosis, without evidence of recurrence.  Our independent oncologist considered that in such scenario, again, knowing what we do, it is unlikely the delay in diagnosis has altered the client’s outlook.  Given the type of cancer, 3.5+ years without recurrence, put him in an excellent category + it appeared he is in the small statistical group defying the overall poor outlook from his stage of disease.  Great news for our client (though not for his claim: though I know which he prefers!).

All goes to show that these types of case, which are sadly reasonably common, require considerable work-up, not only to evaluate whether harm has followed any inappropriate (negligently caused) delay in diagnosis/treatment on a ‘population basis’ but also on an ‘individual basis.’

Botox + Filler’s : more dangerous than you may think!

We have recently agreed to act on behalf of a client who has suffered significant irreparable facial scarring/disfigurement as a consequence of dermal fillers, she underwent earlier this year @ a slick, web-advertising, brochure wielding, ‘wellness’ clinic in Perth’s metro area (can’t you just picture the ‘world muzac’/running water + Buddha heads!).  We have now handled several such cases, including an even more serious case in which the patient was left with enduring face drop due to nerve damage during injection of filler to her upper lip area.

Despite assurances to the contrary, it seems the operator of the clinic  performing the filler injection was not a registered nurse (though she may have been a nurse of some description/form at some earlier time).  We are yet to find details of what her ‘medically trained’ qualifications entail….

Further, it appears the dermal filler she injected to our client’s face, which lead to her repeated infections/abscesses, may well not have been a recognised, TGA approved product.  A suggestion has arisen that instead, the clinic operator was buying filler + botox supplies online from destination unknown (no doubt at ‘competitive rates’).

Interestingly, because the operator was not at the relevant time a registered nurse, I understand it is difficult for AHPRA (the old Nurses Board) to act.  Their jurisdiction is broadly limited to nurses.

The case is [yet another] cautionary tale about cosmetic treatment providers.  Why this isn’t something governments regulate tightly is unclear.  Why someone injecting foreign material into someone’s face – or irradiating their body (in IPL) isn’t seen as something needing close regulation is hard to fathom…

Apart from anything, I have difficulty understanding how the operators of such businesses, in contrast to properly qualified health professionals, can avoid a mandatory requirement of appropriate professional indemnity insurance…..

But perhaps, its just me..

Fairness (?) + Non-Pecuniary Loss Awards in medical cases

As I have observed from time to time, a previously common, now almost universal sentiment of disappointment is expressed by clients when advised as to the likely scale of compensation they would be awarded by the courts for their pain, suffering and loss of enjoyment of life due to negligently caused injury.

I have observed elsewhere the relative lack of growth in the sums awarded for such component to claims, as a consequence of legislative limits or deductibles via our Civil Liability Act (“CLA”) and relatively conservatism by our Court’s in their assessments.

Once again, as I have stated (ranted?) elsewhere, I am still waiting to see any evidence of how such CLA provisions have a corresponding benefit to the wider community, justifying their impact on claimants.

Bracket creep in the CLA deductible now means that claims of blatant, negligently caused harm causing serious enduring suffering face the very real possibility of entitling the victim to no compensation at all, or what they may, with good reason, consider paltry.  For example, a commonly assessed sum for enduring mild to moderate psychiatric suffering experienced by the parents of a baby dying during child-birth, due to negligent obstetric or midwifrey care, has been a figure in the order of $30 – $35,000.00.  With the application of the CLA deductible, this is reduced to $11 – 16,000.00.  Whilst it is critical to appreciate this is compensation for the parents’ suffering and not a value on the lost life, it can be immediately appreciated why so many clients see such an assessment for their loss, as insulting + in no way reparation for their suffering.

I note with interest the practice prevalent in the United Kingdom whereby its Court of Appeal periodically reassesses the amount that will be awarded for  non‑pecuniary loss aspect to claims.  For example I came across in passing, a press release indicating a 10%  increase in the amounts to be awarded for this head of damage with effect in relation to judgments after 1 April 2013.

In my view there is much to commend such a practice to reflect overall changing attitudes and expectations in the community as well as changes in the purchasing power of any given ‘symbolic’ compensation awarded to the claimant.

We’re hiring!

As Michal is leaving us to return to Canada next month, we have a vacancy for a junior lawyer (0-3 years post-admission) to join our team…

Don't be shy, if you're keen to work in this area, in Perth's best boutique firm, email me your details…. Cheers Julian

Paul v Cooke – timing difference not enough to prove causation

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.

The Value of an Apology.. its more than you may think!

In several cases concluded in the last month or 2 of 2013, I have again been reminded of the remarkable ‘value’ of an expression of regret by health professionals in two recent cases.

In the first, following a mediation in the court, very much to his credit, the GP defendant at my request, but without obligation, expressed regret to a client whose wife died following late diagnosis of metastatic colon cancer.  I am convinced that my client obtained infinitely greater comfort and closure in relation to the issue from this expression of regret than the relatively modest monetary compensation to be paid for his psychological suffering due to his wife’s foreshortened palliative care period.

Similarly, in a Coronial Inquest  in which I appeared for family of an elderly but active fellow who died as a consequence of inguinal hernia surgery, the fact the GP anaesthetist involved unambiguously demonstrated sadness at what had occurred and illustrated the emotional impact his patient’s death had had upon him,  had a profound effect on the deceased family members concerned.

In neither of these two cases was the expression of regret coupled with, or implicitly involving any admission of culpability (morally or legally).  This is in my experience almost always of secondary importance to the patient and family.  The important point both cases demonstrate is the ‘humanness” of the health professional and that the adverse outcome has, as ought be expected, impacted upon them, perhaps causing reflection and even perhaps, a change in future practice.

A lesson I think that health professionals and their insurers would do well to heed.