Negotiating Good Health Conference

Negotiating Good Health Conference Dimitra Dubrow Principal, Medical Negligence Department Maurice Blackburn Lawyers 29 November 2013 Presentation title

2

3

Identification of Doctors at Risk of Recurrent Complaints: A National Study of Healthcare Complaints in Australia, BMJ Quality and Safety 1 July 2013 Vol. 22 No. 7532-540. Study looked at just under 19,000 healthcare complaints lodged against doctors with State and Territory Health Commissions. Findings included: 61% complaints about clinical aspects of care; treatment (41%) diagnosis (16%) and (8%) medications Nearly a quarter of complaints were about communication including attitude or manner of doctors (15%) quality or amount of information provided (6%). 3% of practicing doctors accounted for 49% of all complaints. 1% of doctors accounted for 25% of all complaints. 4

Frequent flyer doctors failing in their provision of patient care. More to be done to identify and address problem doctors through regulatory or other means to protect against repeat offenders. Anecdotally, we also receive clusters of enquiries about particular doctors or hospitals. 5

Australian Institute of Health and Welfare s report on medical indemnity claims for 2011 2012 presented data based on reserves being allocated by insurers more new claims in the private sector (1,700) then the public sector (1,300). The figures show that: 10% incurred no cost at all; 26% involved a cost under $10,000.00; 29% closed for between $10,000.00 and $100,000.00; 25% closed for between $100,000.00 and $500,000.00; 10% closed for $500,000.00 or more. If successful, quantum very low and for many no payment made at all. 6

The top specialties involved in claims were: General practice non procedural 11.8%; Emergency medicine 9%; General surgery 8.4%; Orthopaedic surgery 5.5%; Obstetrics and gynaecology 4.6%; General nursing 4.1%; and General practice procedure 3.4%. 7

Case Selection Many enquiries received daily about medical treatment concerns. Enquiries screened and most not pursued. Must apply case selection criteria. Judgement calls being made from the outset. Decision whether to pursue or investigate critical. Claims time and resource intensive. Refer people we cannot assist to appropriate body, eg. Health Services Commission. 8

What is a Medical Negligence Claim? Claim for damages for physical or psychiatric injury against a health service provider based in negligence and/or contract. Negligence or breach of contract may be an act or failure to act. Damages can be awarded for: o o Non economic loss (general damages/pain and suffering); Economic loss (special damages, medical and other expenses/loss of earnings). Claims based on: o Common Law; and o Wrongs Act 1958. 9

What is Medical Negligence? Occurs when treatment provided by a health service provider falls below a reasonable standard. Mistake or error of judgment not enough. Need to show fault or want of reasonable care Difference of professional opinion as to diagnosis and treatment will not negligence. Unsuccessful treatment or patient suffering risk or complication of treatment not negligence. 10

What do we have to prove? Breach of the duty to take reasonable care/negligent treatment provided; and Breach/negligent treatment caused injury; and Injury is assessed as a significant injury (to recover general damages). 11

Negligence A doctor or health service provider will be found to have breached their duty of care if the treatment and/or advice provided fell below a reasonable standard of care. Standard of care expected is that of the ordinary skilled person exercising and professing to have that special skill (Rogers v. Whittaker 1992) Standard not lowered if person is inexperienced ie. First day on the job. Section 58, Wrongs Act 1958: the standard expected of persons holding out as possessing a particular skill is to be determined by reference to what could reasonably be expected of a person possessing that skill and the relevant circumstances as at the date of the alleged negligence and not a later date. 12

Courts will look at expert evidence, protocols and guidelines and statutory obligations in deciding negligence. Section 59, Wrongs Act 1958: A professional is not negligent in providing a professional service, if they acted in a manner consistent with peer professional opinion. Peer professional opinion is satisfied if the professional has behaved in a way which was widely accepted in Australia by a significant number of respected practitioners in the field as competent practice in the circumstances. Courts can disregard peer professional opinion if it is unreasonable. Acts as a defence so if found negligent, the defendant can go on to establish that treatment was widely accepted amongst their professional peers and not be liable. 13

Grinham v Tabro Meats; VWA v Murray [2012] VSC 491 WorkCover Claim - recovery action by Victorian WorkCover Authority against general practitioner. Worker at an abattoir not immunised against Q Fever - contracts disease. Attended doctor s clinic for immunisation in 2002. Immunisation not performed because not tested negative to virus. Told to come back in a months time. Patient did not come back and went on to contract Q Fever. Doctor not negligent in failing to recall patient. Court confirmed section 59 acts as a defence. But how does a doctor prove that they acted in a way that was widely accepted by a significant number of practitioners in Australia at that time? Court said at its highest the expert evidence in the case supported inference that competent practice in Victoria but no further. 14

Negligent hospital care cases Wang v Central Sydney Area Health Service [2000] NSWSC 515. Patient was taken by friends to hospital emergency department with head injury. Examined by a nurse who decided immediate treatment not needed. Patient seated in waiting area where he could be observed. Later, patient s friends told different nurse patient s condition dangerous and needed to see a doctor soon. Nurse said emergency department busy and patient needed to wait. When asked whether could be taken to another hospital nurse said they could do whatever they wanted. Patient left waiting room and went to a doctor at a medical clinic who told him to return to hospital. Patient went home and during night convulsed and vomited. Suffered permanent brain damage. 15

Court found: Hospital not negligent for not seeing patient earlier or giving priority; Negligent for failing to persuade the patient to stay until they were treated by a doctor. 16

Sherry v Australasian Conference Association (t/as Sydney Adventist Hospital) [2006] NSWSC 75 Case about post operative care and monitoring after cardiac procedure Patient in intensive care unit developed chest pain Diagnosed as haemothorax (blood in pleural cavity). Before drains inserted, patient suffered cardiac arrest and died. Cause of death was massive intrathoracic haemorrhage. Court found: Delay in diagnosing the haemorrhage despite signs hours earlier. Hospital did not have adequate medical cover in its intensive care unit and had breached guidelines in relation to this. 17

Failure to follow up Doctors/health service providers can be liable for failing to follow up their patients. Usually, in context of test being performed and doctor failing to follow up results. Grinham - example of case involving follow up. Guiding principle - consideration of the seriousness of the outcome for the patient should follow up not occur. Failures in communication constant themes and failure to follow up are subset of such cases. 18

Kite v Malycha (1998) 71 SASR 321. Fine needle biopsy of a breast lump sent for pathology testing. Test results faxed to doctor s rooms - hard copy not sent. Patient told to call later in the day for result and make a follow up appointment but did not. Doctor did not realise biopsy report not received and did not contact the patient. Biopsy result highly suspicious for underlying cancer. Doctor found negligent for not having system in place for checking when test results received and acting on them. Sometimes findings of contributory negligence made.ie, patient themselves found to have contributed to injury because of failure to follow advice of doctor. Issues around patient autonomy, responsibility for own health care and resources required to provide appropriate follow up. Gives rise to factual disputes as to advice given about follow up arrangement. 19

Major challenge for hospitals treating so many patients, with diverse staff and limited resources. But essential part of patient care. 20

Causation Causation hotly contested. Difficult to establish a causal link between a breach of duty and an injury Need to disentangle which part of the injury or medical condition is part of the person s overall medical condition or was going to happen anyway and which is the result of poor care. Plaintiff has to establish, on the balance of probabilities, that their injury was caused by the negligence or breach of duty of the defendant. Compensation only paid for injury which can be established has, on the balance of probabilities, resulted from the negligent care. 21

Have to show that but for the negligence would not have suffered injury (factual causation). Also need to go further and prove that it is appropriate for the defendant to be found liable. This is where value judgements and policy considerations come into play. A recent court decision shows just how hard proving causation can be for a Plaintiff. King v Western Sydney Health Network [2013] NSWCA 162 Claim brought against Blacktown Hospital for failing to offer varicellazoster immunoglubulin vaccine (VCIG) to pregnant woman who had been exposed to the chicken pox virus. Woman went on to develop chicken pox and the virus was transferred to the baby which developed foetal varicella syndrome (FVS) leading to severe physical and cognitive impairments. Claim pursued by the mother on behalf of infant daughter. 22

Claim was that chicken pox would most likely have been avoided had VZIG been given which in turn would have avoided FVS developing. Epidemiological study found that the VZIG injection prevented infection in 54% of women given the injection within three days after exposure. Even though more than 50% probability, judge said it needed to be adjusted to take into account the dosage of VZIG given in Australia and the percentage of cases which resulted in no infection even where VZIG injection not given. Scientific evidence established only a possibility of preventing infection and not a probability. So hospital negligent for failing to administer the VZIG injection but only exposed the plaintiff s mother to a risk to which she was already exposed. Evidence did not support that she would have avoided contracting chicken pox if the injection had been administered. 23

Loss of Chance Tabet v Gett (2010) 240 CLR 537 High Court said a Plaintiff cannot succeed in establishing causation by proving that the defendant s negligence resulted in them losing the chance of a better outcome. Progressive illness or cancer cases, time is of the essence and earlier diagnosis leads to a more favourable outcome, but sometimes hard to pinpoint what the difference to the outcome is as a result of the delay. Sometimes it is because of the defendant s negligence that the difference can t be established. For example, GP not referring a patient for a CT scan which would have a shown a tumour and this is reason why a comparison with diagnosis at earlier time cannot be made. In Tabet v Gett High Court said if loss of a chance recognised this would lower the standard of proof for causation and damage: ie need to prove, on the balance of probabilities that the Defendant s acts or omissions caused the Plaintiff s damage. 24

But courts have been prepared to find in favour of causation even where the best the Plaintiff could prove was an increase in the risk of developing metastatic spread of cancer. Sydney South West Area v Stamoulis [2009] NSWCA 153 11 month delayed diagnosis of breast cancer as a result of radiologist failing to properly interpret a mammogram. At diagnosis cancer spread to the lymph nodes and metastasised to the lungs and brain. Earlier diagnosis would have resulted in 62% chance of avoiding metastatic spread. Because of delay, the chance of avoiding metastatic spread dropped to 58%. 25

Really need to be able to obtain causation evidence which identifies in what way the outcome for the Plaintiff would have been different. Need to show more than that the outcome would have been better or injury less severe with appropriate care. Experts need to pinpoint the injuries or parts of the disease process which, on the balance of probabilities, would have been avoided with reasonable care. 26

Failure to Warn Special category of case relates to obligation of a doctor and professional to warn of material risks. Relates to individual patient autonomy and the need to make decisions about own treatment and bodies. There have been again a number of important High Court decisions dealing with failure to warn. In the case of Rogers, the High Court said a risk was material where: A reasonable person in the patient s position if warned of the risk would be likely to attach significance to it or if the medical practitioner is or should be reasonable aware that the particular patient, if warned of the risk, would be likely to attach significance to it. 27

Need to warn of a risk is greater the more elective and discretionary the procedure is. In an emergency situation, need to warn of risks is greatly reduced if not non existent. For a plaintiff to be successful in a claim based on failure to warn, they need to establish the following: The person was not advised adequately or at all about the material risks of a procedure or treatment. The material risk eventuated. The person would not have had the treatment if properly advised of the risk. 28

Also, Section 56 says: Where there is an allegation that there has been a failure to warn, the Plaintiff bears the burden of proving on the balance of probabilities that they were no aware of the risk or information. So, if not told of the risk by the person who was actually treating you but you found out about it through Google or someone else, another practitioner, then you cannot argue that you were not aware of the risk. Essential that patients be given comprehensive information about the treatment they are about to undergo and that they be warned of any potential risks general and specific to them. Claims based on failure to warn are very difficult for Plaintiff. 29

Vast improvement in amount of information provided to patients since the High Court cases of Rogers v. Whittaker and Chapel v. Hart which really laid down the law. Doctors now acutely aware of their obligations to provide patients with meaningful advice about risks. Not enough to just provide patients with a document like the relevant College s information on a procedure or a consent form signed by the patient. A doctor or health care professional needs to actually satisfy themselves that the person has understood the risks. Best defence for a doctor or other health service provider is to have comprehensive contemporaneous records outlining the advice provided. 30

Wallace v Kam [2013] HCA 19 Patient underwent spinal surgery for a disc protrusion. Suffered complication of bilateral femoral neurapraxia (temporary nerve damage). Another risk, which did not eventuate, was spinal cord damage resulting in paralysis. Surgeon did not advise the Plaintiff of any of the risks associated with the procedure. Plaintiff claimed that would not have undergone the surgery if told about the risks. Therefore, plaintiff would not have suffered neurapraxia because would not have had surgery if warned of the risk of spinal cord damage. But found would have had surgery if told about neurapraxia, so court found that the failure to warn did not cause the injury. Case shows that to succeed in a failure to warn case, a Plaintiff needs to show that the risk about which advice needs to be given must be the same risk which eventuates. 31

Contributory Negligence In some cases, patients themselves have been found to have contributed to their own injury and so a finding of contributory negligence is made. These cases include: Patient does not have an x-ray performed following referral; Not attending a specialist appointment which has been arranged when the patient is aware of the seriousness of the situation; Being non-compliant with instructions; Patient fails to give important information which would have affected the outcome. A finding of contributory negligence can completely defeat the claim. ie damages reduced by 100%. 32

Who will be sued? Vicarious liability : an employer, including a hospital, must indemnify employees for wrongs done during their employment. Issue is, what is the scope of the employment. Hospital also has a non-delegable duty of care so liability may extend to cover the negligent acts of a person who is not an employee. Where medical negligence occurs in: i) Public hospital: claim brought against hospital only (as hospital vicariously liable for employee acting within scope of employment); ii) Private hospital: claim brought against hospital for negligence of their staff and against individual doctor engaged by the patient. 33

When a person dies Claim can be brought where a person has died as a result of negligent medical treatment. Claim for loss of dependency associated with loss of income and services. Claim for damages for psychiatric injury by a parent, relative or person in a close relationship with the deceased. Needs to have either witnessed at the scene the person being killed, injured or put in danger or be in a close relationship with the victim. Need significant injury to recover damages for pain and suffering unless loss of a foetus or the loss of a child as a result of injury at time of birth. 34

Coronial investigation or inquest may take place into the circumstances surrounding the death. Reportable death includes one: That occurs during or following medical procedure where the death is or maybe causally related to it; and Where the death appears to have been unexpected, unnatural or violent. Inquisitorial fact finding process, not about apportioning blame. Legal representation. Can t use Coroners process to base a civil claim. Media. 35

Coronial Case Treatment by a hospital involving neonatal death. First pregnancy conceived following IVF treatment overseas. Due date 20 August 2007 Antenatal care provided by a major metropolitan hospital 23 August 2007 presentation to emergency department of hospital with period like pains, vaginal bleeding and headache Urine test positive for leucocytes protein ketones and blood Contractions twice every 10 minutes CTG normal 27 August 2007 attendance at pregnancy clinic CTG normal; 36

Amniotic fluid 5.2; Fetal dopplers show low resistance blood flow in umbilical arteries and low pulsatility index in the middle cerebral artery; 30 August 2007 10 days overdue admitted for induction of labour; 0845 hours CTG trace abnormal; Waters broken, thick meconium liquor; Caesarean section baby born in poor condition, APGAR scores two at one minute and two at five minutes; MRI scan shows severe brain injury; Baby dies as a result of hypoxic brain injury in the setting of meconium aspiration syndrome. 37

Coroner found: Supervision of CTG trace and timing of the response on 30 August inadequate. Unclear whether hypoxic injury would have been avoided with earlier intervention on 30 August. On 27 August should have been either increased fetal monitoring or delivery discharge inappropriate in mother conceiving by IVF after prolonged infertility. Had there been increased fetal monitoring on 27 August then deterioration would have been identified and steps taken to deliver the baby and death would have most likely been prevented. Failure in increase fetal monitoring on 27 August or proceed to delivery within 48 hours contributed to the death. 38

Damages Damages can be awarded for: Non economic loss (pain and suffering); and/or Economic loss (loss of earnings, nursing and attendant care, medical expenses and allied health therapies, housing, vehicle modifications and equipment). Damages cannot be recovered for pain and suffering (non economic loss) unless there is a significant injury. This is a physical injury of more than 5% under the American Medical Association Guides (Chapter 4) or more than 10% whole person impairment for a psychiatric injury under the Guides to the Evaluation of Psychiatric Impairment for Clinicians. Some injuries deemed to be significant injury, for example, loss of a foetus or a breast. 39

Damages for pain and suffering capped at around $482,000. There is a formula for yearly increases of the amount by reference to the consumer price index. Loss of earnings claim capped at three times the average weekly earnings of Victorian employees. Damages for gratuitous attendant care can only be claimed if the care is required for six hours or more per week or for more than six months or more. 40

Time Limits Adults - three years from date action discoverable Children and people under a disability - six years from date action discoverable Or 12 years from date of act/ommission (whichever is earliest) Discoverability defined as date knew or ought to have known all of the following: The fact that the injury occurred; and The fact that the injury was caused by the fault of the Defendant; and The fact that the injury was serious enough to justify bringing an action. 41

Personal Injury