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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!

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 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..

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.

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.

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.