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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!

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.’

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.


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)