West Australian Medical Negligence Law Blog

Can 'latent' medical injury claims that were time barred before November 05 be brought now?

Julian Johnson — Mon, 14 May 2012 08:25:55 +0700

Just a short note that argument has taken place before Judge Schoombee in relation to this question, in the matter of Lola Phillips v Min for Health. As expected Judge Schoombee reserved her decision..

The key facts in the case are:

1) Lola was born in March 2002, and was born with congenitally dislocated hips.

2) Lola's case alleges negligent child health care by a community nurse, in failing to act on a finding of 'clicky hips' at a review 10 days after her birth.

3) it is alleged that it was not until Lola began kindly in 2006 that the problem with her hips was noticed. By this time it was too late for effective treatment and despite surgery Lola has significant long term disability. Had treatment been arranged in 2002, it is likely such disability would have been avoided, with simple conservative treatment.

If the 2005 changes to the law apply to Lola's claim, the time when her time for claim began to run is 2006, when the problem with her hips became apparent (and her case is brought within time).

There is no question that before such changes in the Law in Nov 05, Lola's claim would be taken to have accrued and so time was running even before identification of the problem. The injustice of this was a well recognized reason for the law's reform in 2005.

The question in issue is whether the changes in 2005 retrospectively benefit claimants like Lola. In my view, perhaps predictably, the 2005 changes are retrospective and Lola may rely upon them. Only time will tell whether Judge Schoombee agrees....

Nathan Bracken: high profile medical negligence claim

Julian Johnson — Fri, 04 May 2012 09:44:34 +0700

I note recent reports confirming that Nathan Braken, who played 116 1 day internationals for Australia, has made a claim against Cricket Australia, alleging a negligent failure on its employed medical and physio staff, to appreciate he required knee surgery, after an injury during a game against England in 2007.

It is alleged that an MRI scan performed after such game ought to have lead to identification of the need for him to undergo arthroscopic knee surgery. Mr Braken claims that his cricket career has been lost, due to the failure to arrange such knee surgery at that time.

In my view, this case is part of a growing trend.

As Australian sportsman's potential earnings continue to increase + authorities and teams provide ever increasing management of health, diet etc, there is an increasing likelihood of litigation when injuries are suffered.

In the AFL there has in the last couple of years been trends with patterns of particular forms of injury being suffered by particular teams, potentially tied to training or strength/conditioning practices at the particular club... I was interested to hear of Essendon + Collingwood's cutting edge practices to seek to assist in their prep for the Anzac Day game.

In my view, it may be only time before career ending injuries leads to litigation and a court ultimately reviewing the reasonableness + scientific justification for some of the more cutting edge/controversial practices.

How a Judge decides who to believe?

Julian Johnson — Wed, 11 Apr 2012 17:01:28 +0700

In passing I came across the following very good explanation of how a Judge is to weigh up and decided who to believe when 2 witnesses (in our context usually patient v doctor) give conflicting evidence on an important topic.

As well explained, this does not necessarily involve a conclusion someone is lying. In my experience this is not often a conclusion reached. Rather the Judge will generally make a conclusion that 1 witness' accuracy is better than the others, even though both honestly believe they are telling the truth.

The quote is from a UK case: Onassis and Calerropolous v Vergiottis [1968] 21 Lloyds LR 403 at 431. [I have reformatted it to make it easier to read (I think)]:

"Credibility" involves wider problems than mere "demeanour" which is mostly concerned with whether the witness appears to be telling the truth as he now believes it to be.

Credibility covers the following problems:

First, is the witness a truthful or untruthful person?
Secondly, is he, though a truthful person, telling something less than the truth on this issue, or, though an untruthful person, telling the truth on this issue?
Thirdly, though he is a truthful person telling the truth as he sees it, did he register the intentions of the conversation correctly and, if so, has his memory correctly retained them? Also, has his recollection been subsequently altered by unconscious bias or wishful thinking or by overmuch discussion of it with others?

[in my view the most useful passage]

Witnesses, especially those who are emotional, who think that they are morally in their right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active.

For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance.
And lastly, although the honest witness believes he heard or saw this or that, is it so improbably that it is on balance more likely that he was mistaken? On this point it is essential that the balance of probability is put correctly into the scales in weighing the credibility of a witness. And motive is one aspect of probability. All these problems compendiously are entailed when a Judge assesses the creditability of a witness; they are all part of one judicial process. And in the process contemporary documents and admitted or incontrovertible facts and probabilities must play their proper part.

Well summarised in my view (mentioned in the recent melanoma case: Coote v Kelly [2012] NSWSC 219).

The Humble Hot Chip!

Julian Johnson — Wed, 04 Apr 2012 15:15:37 +0700

As yet further proof that the most humble of circumstances can be made complex by the Law, the High Court recently (7 March 2012) handed down its decision in the “Big W hot chip case” (Strong v Woolworths [2012] HCA 5).

The case concerned a claimant, the aptly named (given the need to litigate her case all the way to the High Court) Mrs Strong, who suffered serious injuries when she slipped and fell at a suburban shopping centre. It was not in dispute that the cause for her fall was her slip upon a greasy chip on the floor of the sidewalk sales area outside the store.

The initial trial judge concluded (and this was not disputed by the time the case got to the High Court), that the defendant had been negligent in failing to have in place an appropriate system for inspecting and cleaning the relevant area. Interestingly it was suggested that reasonable care required inspection and cleaning of such area at 15-minute intervals [14].

The difficulty faced by Ms Strong (and many clients in similar cases) was proving that if the defendant had in fact had a proper inspection and cleaning, the chip would have been identified, cleaned away and the accident would have been avoided. This is a classic 'causation' issue. Once negligence is proven, in cases like Ms Strong's (and medical negligence cases), the question becomes whether the negligent party should therefore be found liable to compensate the person making claim. This depends on whether, as a matter of Law, it should be concluded that the negligence caused their harm.

Ms Strong had succeeded at trial on this issue. This was then reversed on appeal in the New South Court of Appeal. The Court of Appeal concluded that it could not be proven by Ms Strong that an appropriate system of cleaning and inspection would have removed the chip, because there was no evidence as to when it had in fact fallen to the ground. Based on (inherently) scant evidence, the Court of Appeal concluded there were pointers to suggest the chip had probably not been present for a long period of time. This included the fact the accident had occurred in the lunch period and apparently (I know, this is ground breaking!) people often like to buy hot chips at lunchtime.

Thankfully for Ms Strong, the High Court reversed the court of appeals decision upholding Ms Strong’s claim and awarding compensation. This conclusion was based upon the view that when all the evidence was looked at, it could be safely concluded that an appropriate system would have been likely to have identified and removed the relevant chip.

The more interesting aspect of the matter from a medical lawyers perspective was the court's discussion in relation to the approach to deciding “causation” questions in difficult cases, where evidence as to the link between negligence and the poor outcome is thin, or difficult.

The majority of the court confirmed that argument had not been put to it suggesting that determination of such causation questions under the Civil Liability Act resulted in any change of outcome compared to the approach to causation at, law (preceding the CLA).

The Court confirmed that it had not been determined that a non-essential but factually contributing cause would not satisfy such test (I know a 'double negative'). It was observed that section 5D(2) made express provision that causation could be accepted where negligence could not be established as a necessary condition of the occurrence of harm, provided the policy considerations described in the conclusion of such provision were satisfied [26].

Tantalisingly, they did not go further and provide any commentary as to the scope of this possibility, which has thus far been ignored/unused.

Also interestingly, as with Amaca Pty Limited v Booth [2011] HCA 53 the Court seemed to me to be careful to make clear that it has not to date been asked to decide whether negligent conduct causing a risk of injury in which the state of scientifical medical knowledge makes it impossible to prove whether or not such harm eventuated, is sufficient to permit recovery of compensation (see paragraphs [25] - [26]).

This is the single largest issue of uncertainly in medical law.

It is often the case, in many types of medical claim, that uncertainty arises as to how a patient’s situation would differ had more appropriate care been shown (for instance delay in diagnosis of cancer cases). Resolution of how such claims are to be evaluated when little or no clear guidance can be given by medical science, as to how the patient's position would have differed (and if it would), with better care, remains very contentious and unclear.

Whilst I may be optimistic, the High Court's recent statements in Strong and Amaca do appear to appreciate the difficulties facing plaintiff's as a consequence of “evidentiary gaps” in such cases.

Time for Claim - Clarification of current position (a little..)

Julian Johnson — Sun, 25 Mar 2012 14:57:27 +0700

The Limitation Act 2005 came into effect in Nov 2005. Surprisingly, for non-lawyers anyway, there remains a fair amount of uncertainty as to such new scheme's effect in several important respects, particularly:

in terms of the time for claims alleging medical negligence. This uncertainty is not as to the overall time (which in most case is 3 years), but as to when time starts to run from...
in terms of in what circumstances an extension beyond such initial time limit will be granted.

A recent decision by Keen DCJ, Abreu v Peacock [2012] WADC 31sheds some light on the first of these.

Section 55 of the Limitation Act 2005, which deals with when a claim (or 'cause of action') arises, so that time starts to run for a claim, states:

55. Personal injury — general

(1) A cause of action for damages relating to a personal injury to a person accrues when the only or earlier of such of the following events as are applicable occurs —

(a) the person becomes aware that he or she has sustained a not insignificant personal injury;

(b) the first symptom, clinical sign or other manifestation of personal injury consistent with the person having sustained a not insignificant personal injury.

In Abreu, Judge Keen confirmed that the key phrase, 'a not insignificant personal injury' was not a high threshold and was something very different from 'a significant injury.' He therefore concluded that although the claimant in such case alleged, as quite often occurs, that initially he had not suspected his work injury was serious, nonetheless, section 55 was met very shortly after his accident and so his time for claim began to run.

It appears Judge Keen's decision is the subject of appeal, so it will be interesting to see what the Court of Appeal make of the issue.

Trials + Technology - video transcription: why not?

Julian Johnson — Sun, 05 Feb 2012 16:00:58 +0700

I recently sat in to watch several key portions of a well-publicised medical negligence trial, held in Perth in late 2011.

As with most such cases, each party called and relied upon leading expert medical witnesses, to comment on the quality of medical care and advice the patient received. In this case, because of the type of case, such experts were neurosurgeons + neurologists.

One section of the trial involved questioning of a formidable expert called by the Defendant, a neurosurgical specialist who's evidence was conducted via video-link from overseas.

Such expert, by my assessment, was generally a very knowledgeable and thoughtful witness, who's evidence was given in decisive terms + without hesitation.

An exception to this was a short segment of such expert's evidence, when asked a particularly curly question by the barrister representing the patient. In contrast to the balance of the expert's evidence, the expert's answer to this question was given in, to my eye, a far less convincing manner. There was a long pause before he answered, his body language when asked the question changed noticeably (he sat back from the table in front of him, folded his arms and generally adopted a defensive posture) and the tone of his answer when given was uncertain and hesitant...

Yet the transcript of such evidence, which is all that is kept, will demonstrate none of the above subtle, yet potentially key features of the evidence. The literal words of the answer, which is all the trial judge will now have (other than his direct memory of the evidence + any notes he took), or which any appeal court may have access to, in the event of an appeal, will convey none of the subtle aspects to his evidence described above..

In this day and age, this seems to me to be unnecessary, both for the trial judge, but also any appellate court. As stated, the expert's evidence was given by video link and software to record such video - or any 'live' evidence at trial is available at negligible cost (with navigation controls to allow speedy location of any given point etc)... Why the entire course of evidence is not recorded both in terms of video + actual audio and accessible, as well as being transcribed is hard to understand.

section 47A catches its last victims....

Julian Johnson — Sun, 15 Jan 2012 15:06:33 +0700

If I had to pick one legislative provision which has resulted in more gross unfairness than any other, over the period of my career, its a 'no-brainer:' section 47A of the Limitation Act 1935.

Section 47A in the context I have seen it most regularly, set a time limit for claims to be made against public hospitals, to a fixed period of 6 years (at most: it actually provides a 12 month limit, which can be extended up to this 6 limit). When I say 'fixed' I mean fixed! No matter how unfair such a time limit is, it cannot be extended...

The most unfair application of this time limit I have seen arises in relation to obstetric negligence claims. Section 47A means that any claim relating to negligence surrounding a child's birth, must be brought before the child's 6th birthday. If not, the child's potential right to claim is lost forever.. This is particularly unfair as it is commonly only around 6 years of age that parents will be told the likely long term outlook for their child, they may have been reassured prior to this point, on the promise of hoped for improvement. Further, if the child's family situation is unstable and no-one brings claim on their part, their claim is still lost, even though it is absurd to hold them responsible for a lack of action on the part of such parents etc..

Section 47A was repealed by the Limitation Act 2005 and so does not apply to any child born from November 2005 onwards.

In 2 test cases (Burns v Min for Health and Harrall v Min for Health: I argued the latter) heard by the Court in Nov/Dec 11, it was argued that when the 6 year time limit set by section 47A had not expired at the time the "new' Act came into force, such 'new' Act's provisions allowing extensions of time, when Justice required it, should be permitted to apply, in scenarios such as I have described above.

Sadly, in such cases the Court has made clear that the 2005 legislation does only remove section 47A's application for children born after November 2005... both children in the Burns and Harrall cases cannot pursue claim against the hospital, no matter how negligent their care + [most importantly], no matter how good the reasons for their not taking action earlier.....

Another Failure to Warn Case fails.. sort of!

Julian Johnson — Sun, 06 Nov 2011 18:14:06 +0700

I note with interest the Court of Appeal's decision in Nigam v Harm [2011] WASCA 211.

Whilst a case concerning a negligence action against a firm of solicitors, the important aspects of the case predominantly related to medical negligence claims.

It was alleged the relevant firm of solicitors had been negligent in failing to:

take action to protect a potential medical negligence claim by Mrs Harm against surgeon, Dr Hastwell.
pursue various lines of investigation concerning possible lack of care on the part of the relevant surgeon, Dr Hastwell.

Mrs Harm had succeeded in her case against such solicitors at trial, but on appeal, such claim was overturned. The court majority concluded that the solicitors had not been negligent.

For a lawyer working in this area, it was interesting to read the degree of initiative/imagination considered required on the part of solicitors investigating quality of medical care issues.. My impression was that the 'bar' was set lower than I would expect.

This was particularly so, in relation to the issue of reminding Ms Harm about the impending expiry of the 'holding' writ that had been lodged (which would end any claim if it expired without action). Given it seems she was still eager to pursue claim, I am surprised her solicitor was not considered obliged to remind her of this deadline so a decision could be made, whether the writ was served (or an application made to extend), given the consequences if it was not (which it was not clear to me, from reading the decision, she knew).

Justice Newnes made interesting comments in relation to the one area he did consider the solicitors ought to have considered some prospects of a legitimate claim, a claim that the surgeon had failed to appropriately warn Mrs Harm of the risk that the surgery may cause significant post-operative nerve pain in the area of scarring at her surgical incision (see for example @ [116] - [121]).

His Honour concluded, that any claim by Mrs Harms would not have prevailed, because she would not have proved that if warned she would not have gone ahead with such surgery.

With respect, I am not sure the evidence really supported such a conclusion (as distinct from a conclusion that 'no conclusion' could be drawn, because too many important things were unknown relevant to such decision (for example: the true scale of such risk, the alternatives open to her, other than such surgery {including the risk if it was performed laparoscopically, if this was possible}).

Justice Newnes view was shared by McLure P and so prevailed. Interestingly, Justice Murphy disagreed and considered the solicitor had been negligent in relation to this failure to warn aspect of the potential claim.

Urgent Alert: Time Running very short for Birth Injury claims....

Julian Johnson — Sun, 06 Nov 2011 18:09:44 +0700

Further to my earlier post, time is now extremely short for birth injury claims, for children born before Nov 2005.

As I have previously posted, the Limitation Act 2005, retrospectively (and without any publicity) shortened the time for claims relating to alleged negligent obstetric (or midwifrey) care, prior to its introduction in November 2005.

Before this legislation, children injured due to negligent obstetric or midwifrey care had until age 24 in most cases to bring claim (there is an important exception, in the case of claims against public hospitals or other public health services).

The time for such claims was shortened, so that it runs out in less than 10 days time... on 15 Nov 2011! This does not apply to other medical claims, only birth injury claims.

Anecdotally, there are very few people (even lawyers) who are aware of this limitation period shortening.

If you have such a claim - or are handling it for a client, the time for action is now......

Medical Claims: 2009 year figures released.

Julian Johnson — Mon, 26 Sep 2011 16:34:18 +0700

The Australian Institute of Health and Welfare has published another of its annual reports, providing statistics on public and private sector medical indemnity claims in Australia. These cover the 2009 year. Interesting reading..

Total 'new' claims in the year totalled 2,600, roughly equally split between public v private medical care.

The more interesting figures came in terms of cases closed/finalised in that year. The total here was 3,100, which sounds like a lot until it is appreciated that 30% of these were resolved without any payment (so 930). Then we take out another 36% in which the payment was $10,000 or less (another 1,1116). This leaves 1,023 claims, of which 124 (4%) recieved payouts of $500,000.00 or more.

Interestingly, there was no suggestion at all in the report (at least that I could see) to suggest any increase in claims costs/incidence. This in real terms probably indicates a fall, given the increasing costs of remedial medical treatment etc, that would fall within many claims.

Crisis, aint no sign of one... for all the info, see here.

Medical Experts: Duty to the Court Reminder..

Julian Johnson — Tue, 20 Sep 2011 16:04:11 +0700

I gave a talk a couple of weeks ago for the College of Surgeons, highlighting the key principles governing the obligations owed by medical and other expert witness' to the court + set out in the District Court of Western Australia's Code of Conduct. Emphasis was placed upon the trust and reliance the Court places on such experts to assist them, rather than being partisan advocates for the parties retaining them.

Judge Stevenson, in a non-med neg context (though equally applicable) gave his 'thoughts' on the topic, and the Court's demanding expectations of experts, in no uncertain terms recently, in Mills v Downer EDI [2011] WADC 82, see particularly @ [241] - [242].

I note in this context, in a similar vein, the recent NSW Supreme Court decision in KF v Sydney Children's Hospital [2011] NSWSC 874, in which the wonderfully named Justice Johnson, refused permission for a party's legal representatives to meet with the experts they would rely upon to support their claims of negligence, ahead of an agreed joint conference between the 2 sides' experts.
The Court (and this is embodied in such Court's Standing Practice Note for such conferences), seeks that the experts confer and seek to narrow or resolve their areas of disagreement without the involvement of legal representatives. No doubt cause for palpitations for the lawyers involved!

The legal representatives have a critical role in setting the questions/issues for the experts to consider, but at the stage of such consideration, their role and advocacy based on one party's best interests or another is to be avoided, to the extent possible.

In Western Australia, the use of such devices/processes are only now emerging.

Generally, parties (and this is true on both sides) have to date jealously guarded control + access to their experts.

It will be interesting to follow in the next year or so + figure out how such process' emerge and how they alter the dynamic and approach needed in pursuing such claims.

Study: Caesarean v Vaginal Delivery Outcomes

Julian Johnson — Sun, 07 Aug 2011 17:39:56 +0700

Was interested to read in the West of the James Cook Uni study to follow up outcomes and attitudes (after the event) of women choosing vaginal -v- elective caesarean section.

While I defer to the experts, the more information and hard evidence, rather than 'old wives tales' and medical-politics, assisting women to make health decision relating to childbirth the better..

For one thing, some accurate and verified information about incidence/severity of pelvic floor injury/dysfunction following vaginal delivery, I would have thought useful in assisting women with their choice.

I was once told that a study of UK female obstetricians overwhelmingly supported elective c-section, because of the avoidance of potential urinary incontinence/bowel dysfunction/sexual dysfunction perceived to arise with a vaginal delivery. How many obstetricians warn patients of this risk, when discussing birth options, particularly with an anticipated large baby?

I appreciate that this is a complex decision for the mother, involving evaluating the risks and benefits for both mother and baby. Nonetheless it is their decision + our Law recognises an obligation on those advising, to ensure they are aware of all the information likely to be significant to them in making their choice.

I was surprised to read the RANZCOG President's comments that "One of the issues facing obstetricians is the lack of information about the underlying reason a woman may want to choose a caesarean section where there is no medical reason."

Isn't there an obvious solution to this... in a non-confrontational, non-judgemental context, ask her........

Cosmetic Surgery Tourism: My Proposal!

Julian Johnson — Tue, 26 Jul 2011 11:25:12 +0700

As a post-script to the recent resolution of my client's claim against a travel agency, promoting Thai cosmetic surgery, I now have to drive each day past a massive billboard on Railway Rd, Subiaco, promoting the services of another such agency. Clearly its a thriving business sector...

To protect those uninformed enough to think that breast augmentation surgery or laser eye surgery, in conjunction with 5 Star Accomodation in SE Asia, is a good idea + the 2011 equivalent of a beach massage in Bali or a pedicure at the local shopping centre, my modest proposal is to introduce legislation:

1) requiring such agencies to have comprehensive insurance against claims by those travellers suffering serious complications/adverse outcomes from their cosmetic procedure.

2) requiring such agencies to recommend and have prospective clients/patients sign an acknowledgement that they have been advised to seek indepedent local medical advice as to the sense (or otherwise) of the proposed treatment.

3) holding such agencies liable in the event of an avoidable adverse outcome from the foreign treatment.

Can't see it happening, but ....

Another Informed Consent Case fails at trial

Julian Johnson — Sat, 16 Jul 2011 10:46:18 +0700

Maintaining the sobering record of Plaintiff claims based on informed consent, is a recent South Australian case, Coombes v Katsaros [2011] SADC 93.

The claim concerned alleged complex regional pain syndrome ("CRPS") said to have arisen following hand surgery.

The key to the Plaintiff's claim was his assertion that he ought to have been warned of the risk that such hand surgery, which was indicated, but not essential, could cause CRPS and so further suffering.

Evidence at trial was given suggesting some hand surgeons would provide such a warning, whilst others would not. The evidence as to the incidence of such complication was not clear, but accepted by the trial judge as occurring in a severe form in perhaps 1 in 2,500 cases.

In the circumstances, Judge Millstead was not convinced the Defendant had a duty to warn of such risk (see @ [267]). Interestingly, Judge Millstead appeared to place significant weight in his conclusion, upon the absence of any specific questioning by Mr Coombes concerning risks with the surgery.

The implication is that perhaps had he appeared more cautious about proceeding, questioning the doctor as to what may go wrong, a duty may then have arisen to warn of the complication that occurred.

Mr Coombes case therefore fell at the first hurdle. Given Judge Millstead's conclusion, it would have failed at the second (and more onerous) stage, assuming a duty to warn of the relevant risk arose, of showing that such a warning would have lead to the patient refusing to proceed.

Medical Inspiration = Barry Marshall + a neurosurgeon who cannot be named...

Julian Johnson — Wed, 08 Jun 2011 14:34:01 +0700

Following on a recent post, in recent days I have again been reminded of how jaundiced my perspective on medical care is and how the great majority of careful, skilled medical practitioners "fly under the radar," in my world of medical litigation.

My wife required a micro-discectomy last week, due to a disc protrusion, no doubt attributable to 20+ years of nursing..

The neurosurgeon brave enough to operate on my wife (I suspect he does not know + my wife certainly would have been slow to volunteer her relationship to me), provided a shining example of cautious, well explained and reasoned advice, followed by technically proficient surgery. The 'icing' on the cake was his call to me (as next of kin), at about 9:30 pm last Friday to confirm all had gone well + he was optimistic of a good outcome. In no way part of his contractual obligations, but very much appreciated

The second example was the press club interview with Barry Marshall I happened to catch today on daytime telly... How inspiring! Although not quite ready to hand over the $2,000 per head for genome testing + registration, he certainly painted a clear picture of the enormous benefits genetic testing can offer to medicine in the surprisingly near future.

On that note, back to work + preparing claim against a lesser surgeon, who's muddy thought, awful communication skills and oaf-like technical acumen is more what keeps me busy day to day.

Medical Negligence + Morality...

Julian Johnson — Wed, 27 Apr 2011 10:18:52 +0700

Odd and uncomfortable territory for a lawyer to touch upon...

As is now a matter of public record, I act for Saba Button and her parents in relation to her claim arising because of her terrible complications from the flu-vax in 2010.

There has been recent media interest in the fact an approach has been made to the WA State Government, seeking an ex gratia payment, given the circumstances surrounding Saba's flu-vax.

I have stated publically that in Mick and Kirsten Button and my view, the Government has a moral obligation to Saba, quite discrete from any legal liability for compensation.

More than 1 colleague and friend (legal and otherwise) have 'tongue in cheek' passed comment on the heresy of a lawyer speaking about 'moral,' as distinct from legal obligations. I concede it is not an area in which I have any more knowledge or skill to comment than any other member of our community.

Thinking about this has however highlighted in my mind the fact that the Law 'only' serves to set the minimum standards of behaviour set for society; the limits of what is and is not acceptable. It says absolutely nothing and has no meaningful role in seeking to encourage our best. To define what we should hope of each other, or aspire to, as a community and individuals, rather than what is the point beyond which we will not tolerate...

Little wonder then that Law can be a depressing field to work in, from time to time. In medical negligence law, I spend my entire time focussing on whether care was below the minimum that ought be expected of our health professionals. I see nothing and have no contact with the inspirational, standard-setters in medical and other practice, defining best practice.

In any case, whether expert or not, I am convinced the Government should (though it can't be forced to) do the right thing by Saba....

Lap Band Surgery + Alternatives: The Risks + Benefits

Julian Johnson — Thu, 07 Apr 2011 08:04:31 +0700

Working yesterday and today on a very tragic case for the family of a young women who died after weight-loss surgery, in 2007.

The women underwent a sleeve gastrectomy, one of the 2 most common forms of weight-loss (or bariatric) surgery, performed in Australia today.

While working on the case, I thought it worth sharing the advice we have recieved in recent cases, as to both the success + the risks associated with these 2 most common forms of surgery. Don't hesitate to contact me if you disagree with these figures, which are taken from expert advice from a very experienced bariatric surgeon we have asked to consider such cases:

LAP BAND SURGERY
This is the most common procedure. Completed over 11,000 times in Australia per annum.

average effectiveness: 50% of the excess weight carried by the patient (on average patients lose 1/2 the weight they wish to). Effectiveness does vary significantly.

risks: 0.1 - 0.5% of major complication risk. So 1 in every 200 patients to 1 in every 1,000 patients will experience this. From simple maths, each year, 11 - 55 patients will suffer such major complications in Australia from this procedure. 1 in 2,000 risk of death: so 5 - 6 patients per year will die from lap band surgery.

SLEEVE GASTRECTOMY
average effectiveness: 70% of the excess weight carried by the patient (on average, patients lose 70% of the weight they wish to: this is obviously an advantage of such surgery over lap banding).

risks: 2 - 5% major complication risk. Risk of major complication therefore up to 50 times higher than with lap band. Most common major complication, as in our case, is anastomotic leak (leak from the staple line where the 'new' stomach edge is sewn up). Mortality rate is 1 in 500-600. So about 4 times higher chance of death.

Comment

Interesting features of this are, in my view:

the fact such surgery, if successful, should be accepted as only assisting with weight loss. It will not on its own be a 'quick fix' to obesity issues. With lap bands, the morbidly obese will remain obese even if such surgery is effective.
the lap band is safer but less effective than a sleeve gastrectomy.
patients undergoing such surgery need to appreciate and be comfortable with taking the risks, including a clear risk of death associated with such surgery. This should be particularly borne in mind, when such bariatric surgery is for cosmetic reasons, rather than genuinely medically driven. For someone to undergo such surgery, with the aim of becoming 'thinner,' and then lose their life through such process is tragic, and yet from the above such risk is clear + should be recognised and considered by the patient, before they agree to proceed.

Peer Defence: Bolam + the Civil Liability Act - Experiences in Practice

Julian Johnson — Sun, 27 Mar 2011 00:53:28 +0700

I read with interest an article in the MJA earlier this month, which comments on the status of the 'peer defence,' introduced, in WA, via the Civil Liability Act section 5PB(1). This section, provides that:

An act or omission of a health professional is not a negligent act or omission if it is in accordance with a practice that, at the time of the act or omission, is widely accepted by the health professional’s peers as competent professional practice.

This provision and similar ones in other States was introduced based on a concern (misplaced I have always thought) that Courts were setting standards for doctors which were too high and failing to appreciate real world considerations.

Despite concerns at the time this section was introduced, that it would significantly 'water down' legal expectations of health professionals, years on, I cannot think of a case I have handled since, in which this test, compared with the previous 'reasonable care' as determined by the Courts, would (or has) changed the outcome.

In my experience, if a claim would succeed under the pre-section 5PB Law, it would succeed now. If it would fail under the section 5PB Law, it would probably have failed before. This includes the facts in the Melchior case, referred to in the MJA article.

It is theoretically possible that a Judge may consider care or advice provided by a health professional was not reasonable, despite it being in accordance with accepted practice followed by a significant number of the health professional's colleagues. Obviously this would be very exceptional. We all hope (and believe) it is not going to be common for a significant number of doctors, for instance, to be all acting unreasonably in their care or advice they provide to their patients.

Even in such an unlikely scenario, it is unclear whether section 5PB would give a defence. This is because of sub-section (4), which via a convoluted path, probably says that such defence does not apply if the practice by this group of peers is not reasonable...

Overall, as I have thought for some time, my present view is that section 5PB is/was primarily a reassurance to the medical profession that it will only be in an exceptional case that Judges will find a doctor negligent, when he has followed well-recognised and broadly followed and justified practice in their care. In my view this was the case before the section was introduced and remains the same. The section changes perception of the legal position, more than it changes its application in the 'real world.'

fn: it needs to be remembered that such section has no application in relation to the required warnings as to risks associated with treatment. Peer consistent practice (ie 'none of us tell patients about this risk') is no defence in such context (see s5PB(2)).

Damages for Home Services

Julian Johnson — Wed, 16 Mar 2011 15:05:43 +0700

I came across an interesting point today, while working on a tragic case arising from the death of a relatively young women, who's son suffers from (and prior to her death suffered from) a serious mental illness.

Following the women's death (which we allege was caused by negligent medical care), claim is made on behalf of the son for loss of the financial + non-financial support + services his mother would have provided, had she not died.

These services range from assistance with medication through to transportation and reminders to change clothing etc. They are now provided in part by his father. In part he now does not receive such services.

in claims in Western Australia (and most States) compensation for provision of services provided free of charge (gratuitous) is limited by reason of the Civil Liability Act (section 12). The interesting point is that such section does not appear to apply to compensation of the type sought in this claim.

The claim is not for damages for services needed and provided because of an 'injury' my client has suffered. Rather, this claim is for loss of services that would have been provided to him, had his mother survived. The need for these services does not arise from her death. It predates this.

Anyway, just a tip to anyone handling these Fatal Accidents claims, of this 'wrinkle' in the assessment of damages in such inevitably tragic claims.

What makes a Good Settlement = more than just $

Julian Johnson — Wed, 23 Feb 2011 13:12:39 +0700

An interesting recent case has illustrated (again) that the merits of a settlement, can often involve more than just a question of the overall total settlement sum agreed to be paid.

Upon settlement of medical negligence (and other personal injury) claims, there are a series of standard potential deductions from our client's total settlement figure, which must always be borne in mind (and appropriately calculated or estimated ahead of time if possible). These include:

1) medical expenses for extra treatment due to the negligent medical care. Refunds will often be required to Medicare + any private health insurer (Medibank Private etc). Calculation of such recovery figure(s) can be very uncertain and complex.

2) Centrelink. If benefits have been claimed because of incapacity due to the negligent medical care, refund will often be required. Importantly, depending on the circumstances and particularly the scale of the settlement, there may often also be an effect on future receipt of benefits.

The recent case I have handled, illustrated another consequence, applicable at least in Western Australia. This is the fact that if the client is sufficiently disabled as to have qualified for public housing assistance, a strict means test applies in relation to eligibility for such assistance. In most cases, this is about $50 - 100,000.00 in assets.

In my case my client, who had suffered disability following a sub-arachnoid haemorrhage, was in receipt of such housing assistance for her family.

In the circumstances of her case, it was not in her view (understandably) in her best interests to receive a settlement in the order of $250 - $500,000 because this would render her ineligible for ongoing housing assistance and require that she vacate the family home. She therefore was prepared to accept a settlement offered by the insurer which would result in a net payment to her of just under $100,000.00 because she felt better off receiving this lesser sum and maintaining her home eligibility, rather than seeking a higher figure, but then being required to seek alternate accomodation.

As I say, a timely reminder that the total damages paid in a settlement in some cases is not the measure of how beneficial it is. The settlement's impact upon receipt of government benefits should be carefully assessed, if clients are to be best served by their advisors/representatives.