West Australian Medical Negligence Law Blog

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Section 47A was repealed by the Limitation Act 2005 and so does not apply to any child born from November 2005 onwards.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

The Radiologist + GP: Communication with the Patient

Julian Johnson — Mon, 07 Feb 2011 16:32:43 +0700

I recently came across an interesting article in a medical insurance journal, discussing the responsibilities of a radiologist to ensure communication of important x-ray or other radiology test results. The conclusion of the article was that the radiologist has responsibility for prompt first-hand communication with the referring GP, but the article stopped short of suggesting a need for the radiologist to inform the actual patient of their test result.

The patient is obviously the radiologist's patient, as well as the GP's. The patient (or his insurer) pays for the radiologist's services and a duty to take care is owed by the specialist to the patient. Why then no obligation to tell the patient of the result of their investigation?

This is an issue I have had cause to consider recently, in the context of a delay in diagnosis of breast cancer case. In that case a radiologist's report indicating likely breast cancer was not acted upon by the GP practice (it appears the report went astray + was not followed up), leading to a delay of several months before the patient, re-attending the GP practice, raised the issue of the earlier test, resulting in (a very unhappy) realisation of the oversight.

Claim was brought against the GP practice + was indefensible. It did however occur to me that quite apart from liability in a medical negligence claim context, the whole problem could have been avoided, had the radiologist conveyed the findings of the scan to the patient.

I have seen several cases in the past in which recommendations for further investigation were made by radiologists in their reports, yet not passed on by the patient's GP to the GP.

Quite apart from having an obvious opportunity to advise and explain concerning test results, it occurs to me that often such specialist radiologists may be in a better position to put the test results in context and recommend further forms of investigation if warranted (FNA, core biopsy etc), than the GP referrer.

It is accepted that in cases like this, it is important that 'bad news' is conveyed in an appropriate setting + with appropriate supports. Nonetheless, it is not easy to see why no responsibility for communication to the patient seems to be accepted as arising on the part of this form of specialist (or other similar areas, pathology etc).

Obstetric Cases: The Clock is Ticking.....

Julian Johnson — Tue, 18 Jan 2011 16:34:41 +0700

As most lawyers practising in med neg in Perth will know, a specific provision was inserted in the 2005 Limitation Act, setting new time limits for child-birth injury claims in Western Australia.

Apart form setting a new scheme for children born after 2005, the then labour government did medical insurers a very great favour, by effectively retrospectively shortening, in some cases, enormously, the time for claims for many children born before Nov 05.

Apart from claims against public hospitals, for whom special time limits were set before the 2005 legislation, generally children (and their parents/guardians) prior to the Nov 2005 changes to the Law, had a period of 24 years (period to age 18 + 6 years from then) within which to make claim. This was the timeframe for a claim against a private obstetrician, midwife or hospital.

By section 7(2) of the Limitation Act 2005, for children born before November 2005, this period was shortened to a maximum of 6 years from Nov 2005 (so to Nov 2011). Theoretically, a child born in October 2005 therefore had only 6 years + 1 month to bring claim within time. How many 6 year olds do you know who can initiate and manage complex medical negligence litigation!

There is some scope for extensions of time (no doubt a fertile area of litigation in the near future) + potential for arguments whether this shortening of time applies to cases alleging negligence in antenatal care prior to delivery (see the odd definition of 'cause of action (childbirth)') and when a cause of action is now taken to accrue (and so time start), but as a general rule, if you have an interest in a possible medical claim relating to a child born before Nov 05, you now have only 11 months to investigate + initiate claim...better get cracking!

Study Results: Medical Claims Improve Quality of Medicine

Julian Johnson — Sun, 21 Nov 2010 09:27:38 +0700

I read with interest a recent article, referring to research being published in the well respected, Medical Journal of Australia.

The research related to a survey of 3,000 doctors, concerning their attitudes towards medico-legal issues.

The thrust of the article is along the lines of "isn't it terrible such doctors practice in fear of a medico-legal claim.'

More interesting + significant in my view was a peripheral comment which confirmed that 66%+ of the surveyed doctors said fear of litigation improved their communication of risk to patients. They also said it led to better systems for tracking results and auditing clinical practice.

This is a clear endorsement of the role of tort law (the law of negligence as applied to health professionals) in improving standards of medical practice. As our 'new' website homepage (to be published in the next week or 2) says, clients we see are often concerned at the effect their bringing a claim will have on the practices of the doctor, hospital or other health professional concerned. This is a primary motive for many clients wishing to pursue claim. To make sure lessons are learnt and the same mistakes not repeated the next time. This study validates our view that claims do indeed lead to alter (improve) health practices.

I agree that ideally a threat of litigation should not be a first line mode of seeking to improve doctors' communication skills or other practices. In my view a 'carrot' is always better than a 'stick.'

Further, there is clearly a distorted sense of the significance of a claim being made against a doctor, which has lead to a disproportionate fear of such claims and resulting phobia, which is not desirable. With respect, the answer to this is counselling/education of doctors concerning medico-legal processes (to the extent their fear is unfounded and over emphasised by them as indicative of an attack on 'their life's work').

Does a Doctor have a duty to inform of Disciplinary Action/Restrictions?

Julian Johnson — Fri, 29 Oct 2010 15:22:32 +0700

Working this afternoon on a claim for a client who suffered serious complications as a consequence of gynae surgery, performed by a surgeon who has recently (and previously) been the subject of disciplinary action by the (now defunct) State Medical Board.

The interesting question that arises, following my client learning of such disciplinary action which preceded her contact with the surgeon, is whether the surgeon was obliged to inform her of such action and the then restrictions upon his surgical services. These did not directly apply to the form of surgery she was contemplating, but nonetheless, understandably, she says that she would have liked very much to know of such restrictions and had she, would not have had the surgery performed by the surgeon in question (you can no doubt imagine the less neutral manner in which she expressed this...).

In my view, though I suspect all but universally ignored, a duty should arise for a doctor in such circumstances to inform their patient of such action + resulting restrictions. Rogers v Whittaker defines the health professional's duty as one to communicate the information "a reasonable person in the patient's position would be likely to attach significance to" (the objective test) or which the doctor should suspect the particular patient would attach significance to (the subjective test).

In my view a compelling case can be argued that any serious disciplinary sanctions against a doctor or restrictions on the range of services they may offer, is something a patient is likely to attach significance to (an understatement..), in deciding whether to proceed with proposed surgery.

Interestingly, such a position is supported by one of the 'old' Phil Hardcastle cases, Nunn v Hardcastle, in which Deane DCJ found that the surgeon ought to have informed the patient of the fact a moratorium had been imposed in relation to the particular operation at St John of God Hospital, so the surgery was performed at an alternate hospital

Let me know if you have a view one way or another on this issue - which is obviously related to the equally thorny issue of whether medical practitioners should disclose their relative complication rates etc, compared to their colleagues in a given filed (lap choli's being a well known example).

National Health Professionals Regulation

Julian Johnson — Fri, 29 Oct 2010 15:04:46 +0700

A couple of weeks ago I attended a CPD presentation dealing with the new scheme for National Registration + Regulation of the majority of the health professions. It is beyond doubt that this is a good idea, in terms of consistency of practice registration. One interesting aspect of the reforms that I was not previously aware of, and which I see as having potentially interesting longer term consequences, is the 'new' National body's capacity to set standards for medical and other practice. It occurs to me that this could develop into a challenge/supplement to the College's self-regulation of the specialties. It could for example, allow regulation as to those surgeon's permitted to perform cosmetic breast surgery, bariatric surgery etc + set minimum standards of experience and training for such areas of work. Another alternative may be to set standards in terms of disclosure of surgical results/complication/infection rates etc. Given the College's understandable competing interests (and those of their members), this may present a valuable opportunity for consumer interests to be given voice.

Delay in diagnosis of Cancer: Compensation post Gett

Julian Johnson — Fri, 08 Oct 2010 07:20:01 +0700

One of the most emotionally demanding, complex and ultimately, often rewarding categories of case handled by medical negligence lawyers, are those cases arising from a negligent delay in diagnosis of cancer. At any one time, I am generally acting in 4 or 5 such cases.

Following the High Court's decision earlier this year, in Tabet v Gett [2010] HCA 12, uncertainty has been expressed, particularly by those representing medical defence organisations, as to the recovery of compensation in such cases.

I thought it interesting to conduct a 'straw poll' of lawyers (and others) reading my blog, as to whether they think recovery will be possible, in the following categories of case, following Tabet.

As can be seen, the categories depend on the assumed expert opinions as to the likely effect of the relevant delay in relation to the client/patient's outlook. I think these categories cover the ambit of such claims commonly seen. In each category it is assumed that there has been negligent care and this has caused the delay in diagnosis and treatment of the cancer - for argument's sake, lets assume a 12 month delay. As can be seen, I have sub-divided the categories into 2 categories, being those in which recurrence/spread of cancer has occurred v those in which it has not (but potentially may do).

The categories are:

Where Recurrence of Cancer Has Occurred and it is likely the Client will not survive

In the first 3 scenarios, recurrence has occurred and the client/patient is likely to die from their cancer. In this group, the 3 scenarios are:

where it is likely (more than 50% probability) that if diagnosis had occurred at the time it should, the cancer would have been successfully treated and the recurrence/spread would have been avoided.
Where it is less than a 50% chance that earlier diagnosis, when it should have occurred, would have led to successful treatment and avoidance of the recurrence/spread. In such category there is nonetheless an appreciable chance (though less than 50%) that appropriately timed diagnosis and care would have altered the tragic outlook.
the same scenario as (2), but were the chance of successful treatment and a different outcome, had appropriately timed diagnosis and care occurred, is only very small (<5%).

Where No Recurrence of Cancer has Occurred

In these 3 categories, no recurrence has occurred yet. In this group, the 3 scenarios are:

where it is a better than 50% chance that recurrence will occur in the future (say within 5 years). It is also likely that if diagnosis had occurred at the time it should, the cancer would have been successfully treated and the risk of recurrence/spread would have been very much less (and < 50%).
Where it is less than a 50% chance that recurrence will occur in the future, but this chance is greater than it would have been, if diagnosis had occurred at the time it should, and such difference in likelihood is significant (say 25%).
the same as scenario (2), but the difference in likelihood of recurrence is small (say < 5%), in other words, the effect of the delay in diagnosis and treatment has been a slightly increased chance that cancer will recur in the future (though the overall chance remains < 50%).

It will come as no surprise that I think recovery should occur in all such categories, though obviously its quantification will vary greatly depending on the category:

Let me know your views on whether damages can be recovered in each of these 6 scenarios, anonymously if you like. I will (assuming I get a reasonable number of replies!), post a blog entry summarising the consensus of views expressed.