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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!

Hospital Admin (+ responsibility) reorganisation

It is no doubt my age..  but I have an acute sense of deja vu!

As from 1 July 2016, we have ‘reverted’ to the old scheme of Boards of Management running our major hospitals (and geographic areas).  See the Health Services Act 2016 + the 30 June 16 Government Gazette.  We now have a North Metropolitan Health Service etc.

The consequence, if I am right, is that the Minister for Health (not in this context the MP, but the entity incorporated as the relevant hospital board), was abolished and from 1 July 2016, any existing liability has transferred to the ‘new’ Board.  Strictly speaking, this should require an application to add/substitute the ‘new’ defendant.  I understand RiskCover are taking a pragmatic approach, to existing proceedings (provided served).

Anyone needing help with such an application, how to plead the transmission, let me know.. happy to help (I’ve been here before!)

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.

Facing Extinction? The trial in medical negligence claims

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.

Recent Claims Experience – trends @ JJLaw

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.

Recent Incidence of Medical Negligence Claims data

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.