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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!

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.

Midwife versus Obstetrician: which is safer?

I note with interest media attention to the comprehensive study recently completed relevant to the safety of midwifery care (in part as an alternative to obstetric medical management) across all pregnancies.

This study confirmed that over an impressively scaled and vigorously qualified study group, the relative safety of midwife managed pregnancies, including labour and delivery was confirmed. This included high risk pregnancies, in which a view has previously been held that obstetric management would be significantly safer. Women were generally no safer with an obstetrician involved in their care.

Interestingly the study also found a significantly reduced proportion of deliveries in which instrumental assistance via forceps etc occurred, without harm to the outcome. Whilst this was not surprising, the fact that the safety of outcomes did not seem harmed by this reduction is.

Further, though in my view, less importantly, it was confirmed that the overall costs associated with pregnancy and labour were on average more than $500.00 less when a midwifery care model was used than otherwise. This is a significant cost difference when the number of woman giving birth each year in Australia is considered.

IVF triplets and Melchior claim – emotion aside

I note with interest the recent article in the Australian, confirming a wrongful birth claim for the parents of triplets in Queensland, alleging a breach of contract by their IVF provider, by which they had agreed that no more than 2 embryos would be implanted, yet instead 3 embryos were used.

If the emotional rhetoric is put to one side, there is really nothing controversial about this claim. We would handle such 'wrongful birth' cases, most commonly arising from (negligently caused) failed sterilisation or failure to identify fetal developmental abnormalities during pregnancy, on at least an annual basis.

A key point ignored by the article and debate is that had there been no negligence in the couple's care, yet they still had triplets, no claim could be brought. The High Court rejected arguments about sanctity of life in such cases, a decade or more ago.

Pursuit of claim does not mean the parents are monsters or do not love their 3rd child: it just means they have received negligent care and as a consequence, will incur significant extra costs, related to the 3rd child's raising, which the negligent service should contribute towards. I for one believe this is perfectly appropriate and fair.

 

Extensions of Time: Court of Appeal find a way to make sense of section 41 Limitation Act (Barr v Farrell)

On 10 September 2014 the Court of Appeal by a majority of 2 to 1 upheld appeal against an early decision by Judge Bowden in the District Court rejecting the applicant’s request for an extension of time in which to bring claim under Section 41 of the Limitation Act 2005.

As I have commented previously, such section on its face [bizarrely] only permits an extension of claim for a child, outside the six-year time limit now set, if the Court is satisfied that the child’s guardian acted unreasonably in failing to bring claim within this 6 year time period.

In other words, if there is a good reason why claim was not brought earlier, no extension can be given – go figure!

In Barr’s case, the guardian’s failure to bring claim within the 6 years was because their [negligent] solicitor had advised them it was not necessary to do so and there was plenty of time.  They had expert medical evidence that the child’s care had been negligent, but were told there was no need to rush, as there remained plenty of time for the action to be brought.  This was due to a failure to appreciate that since Nov 2005, birth injury cases (even those relating to births prior to such time) had a ‘new’ 6 year time limit, rather than the old period for claim, which had been generally 6 years from when the child reached 18.

Judge Bowden’s decision seemed to follow the terms of such provision, finding that because the guardian had relied upon legal advice, they had not acted unreasonably and so no extension could be granted [they being presumably left to pursue claim against their negligent lawyer for wrongly advising them concerning the timeframe for claim].

Though unquestionably the right end result, the Court of Appeal’s decision required some ‘reasoning gymnastics.’

Justice Pullin concluded that the inquiry as to whether a guardian had acted reasonably or not was an objective question.  He concluded that the legal advice provided by the lawyer was not part of such objective circumstances that needed to be considered.  Rather the objective circumstances were the fact that severe injury had occurred and medical opinion had been obtained suggesting that the obstetric care was negligent and had caused such injury.  In these circumstances, Justice Pullin concluded that a reasonable guardian would have commenced proceedings and so the court’s discretion arose.

As Justice Murphy put it at [66] the circumstances upon which the decision whether a failure to initiate proceedings was unreasonable include “The nature and strength of the claim, the damages which were expected to be recoverable and any cost considerations which might reasonably bear upon a decision to sue in the particular circumstances of the case.  Medical reports which had been obtained by the plaintiff’s actual guardian would be admissible as relevant to, but not necessarily determinative of, the question of whether, objectively, it was unreasonable for a guardian of the plaintiff not to commence proceedings within time.”  He further stated at [67] “If, in the circumstances, it was unreasonable for a guardian responsible for the plaintiff’s welfare etc. and practicably capable of suing not to have sued within time, the minor is taken to have lost a valuable priority right in a situation where he or she was incapable of preserving the right for himself or herself.  In that event the discretion to extend time may be exercised.”

Interestingly such reasoning does not directly deal with the availability of an extension in the more common scenario where no expert opinion has yet been obtained within the six years (for instance because the parents have been too busy caring for their disabled child to give litigation priority prior to this timeframe expiring, or it is only then they are informed of a poor long term outlook for their child and then consider litigation).  I anticipate allegations in such scenario that the parent/guardian has acted unreasonably in not more promptly investigating a medical negligence claim before the six-year period expires.  Bizarrely, it will be in the guardian’s best interest to accept that they have acted unreasonably in not investigating earlier.

It is important to appreciate the unusual circumstances in Barr.  Expert opinion had already been obtained critical of the care provided and supportive of the fact that this had caused injury.  Nonetheless, in my view the decision encourages a view that the scope of the extension provision is broader than perhaps previously envisaged and there is an arguable prospect for extensions to be granted, where no expert opinion has been sought by the guardian within time or, though this is more controversial, where initial advice may not have supported criticism.

Almario – bariatric case fails on appeal: the house of cards analogy with medical cases..

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 to trial].

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 they bear as the claimant 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 – by no means a certainty;
  • that Mr Almario would have decided to proceed with such surgery, even if recommended – given significant risks of complications associated with such surgery;
  • 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 independently), rather than the former.  My impression is that the trial judge followed this more generous 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 werenot 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

Settlement of Medical Negligence Claims: where is the point of no return? Part 2

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.

Settlement of Medical Negligence Claims: where is the point of no return? Part 1

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)