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

Cosmetic Surgery Overseas: Limited Options if things go wrong…..

I noticed with interest and some concern, recent media attention (see for example and a Herald Sun story in mid-May) concerning the number of Australians travelling to Asia to undergo cosmetic surgery.  According to a recent report, this may be 15,000 patients a year.

Concerns have arisen at the costs then borne by Medicare for remedial treatment for patients suffering complications of the procedure overseas.  According to a Monash Uni study, this is almost $13,000 per patient undergoing such treatment. This is a lot.  $13,000 involves a lot more than simple infection treatment etc.

This in combination with concerns from a public health and safety perspective about such completely unregulated and possibly unregulatable industry is obviously of significant concern.

Action against the surgeon/provider of sub-standard medical treatment overseas (noting “sub-standard” meaning below the standards that would be expected in Australia), will depend upon the law of the place in which such treatment is provided.  Even if, through ingenuity, claim could be brought against the surgeon/service provider in Australia, in the absence of any likely insurance, recovering any loss or compensation from a surgeon or clinic overseas would be problematic.

The only remaining option, if a serious complication or other sub-standard outcome occurs, is to make claim against the local Australian promoter and facilitator for the overseas medical care.  A quick google search will net a whole bevvy of such ‘health travel agents’ with a flashy website promising a ‘Kardashian like outcome’ at a bargain basement cost (with a holiday thrown in!).

This is the avenue we have pursued on behalf of clients, with some, but not complete, success.  Such claims are essentially misrepresentation and misleading and deceptive conduct cases against the website operator.

Whilst ideally this sort of promotion would not be permitted or would be tightly regulated to ensure responsible and accurate statements about the risks and a fair evidence-based comparison between services provided overseas and those with a registered and insured local provider, in the absence of this, such mode of claim seems the best likely to be available, for now at least.

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!)

Ian Harris: one of the good guys!

I read with interest the article in last weekend’s Sydney Morning Herald concerning Ian Harris’s recent book.

In the interests of full disclosure, Ian is an orthopaedic surgeon from whom we commonly seek advice, as an independent expert to review and comment on orthopaedic cases we are investigating. He strikes me as a sensible and “down-to-earth” expert.

I was intrigued at the list of operations which apparently his book confirms are commonly performed but objectively of questionable benefit. In the orthopaedic/spinal area, 3 of these particularly resonated, being spinal fusion operations, arthroscopies and epidural steroid injections.

Each of these are procedures we are regularly instructed to investigate. We presently handle a series of cases in which catastrophic outcomes have followed these initiatives.

I was particularly interested to read the sevenfold variation in the rate of knee arthroscopy surgery between different regions across Australia, which speaks volumes as to diverging views as to its usefulness.

We have handled 2 or 3 cases in the last couple of years in which patients have developed serious infection following such primarily investigative procedure, despite the fact it is I think fairly understood to be relatively low risk. One such case, which is not yet resolved, involves damages > $1M.

I was also interested to read in relation to epidural steroid injections, which are commonly performed upon patients complaining of back or leg pain, that the published literature shows no better relief from such steroid injections than a placebo saline injection. We are presently investigating one case in which a patient (our client) suffered profound permanent neurological injury from such an injection.

All credit to Prof Harris for his refreshingly questioning of professional practices in this area.

Quite apart from the unjustified drain upon the public purse, my observation would be that such questionable interventions are especially hard to justify when the outcome can be as catastrophic as we have seen, even if this is a small minority.


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.

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 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..

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.

Stroke Treatment More Than 3 – 4.5 Hours from Perth (or another major city)

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…