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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!)

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 risk of handling your own case (without a lawyer)

My impression is that there has been an increase in recent times of cases presented before our District Court in which claimants have represented themselves, without a lawyer.

A sobering example of the dangers of this course, is the New South Wales Supreme Court’s recent decision in Fan -v- South Eastern Sydney Local Health District (No. 3) [2015] NSWSC 1620.

In this decision by Justice Harrison, the court dealt with the legal costs following failure of Mr Fan’s medical negligence claim.  Mr Fan parted company with his lawyers in May 2013, two years before trial. He was “assisted” in presenting his case by his son who it appears was a law student. Trial took 10 days in March and May 2015.

Justice Harrison ordered that Mr Fan pay the health service’s legal costs of the claim in the sum of $250,000. In part this followed the fact the defendant, it was disclosed, had made 3 separate settlement offers over the course of the proceedings, including offers to pay $100,000 and later $250,000 in settlement of Mr Fan’s claim, which offers had been rejected.

This must have added insult to injury for Mr Fan.  Not only did he lose his claim, but he did so having rejected such settlement offers from the defence.

As stated earlier, this seems to be a growing trend for plaintiffs, for whatever reason, to seek to present their own cases at trial. Whilst presenting the case in person avoids costs of the plaintiff’s own legal representation, as this case clearly demonstrates, the plaintiff nonetheless still faces the risk of being ordered to pay a very substantial sum to the defendant if the claim does not succeed.

Note as a measure of the costs expended, the $250,000 is actually slightly less than 1/2 the total legal costs incurred by the defendant in relation to the case which was stated as $512,250.83…

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..

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..

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.

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.