MEDICAL NEGLIGENCE IN AUSTRALIA
WHAT EVERY PATIENT SHOULD KNOW
THIS IS THE TRUTH - READ IT - BE AFRAID

HOW MANY PEOPLE ARE AFFECTED IN AUSTRALIA?

• Australia has the highest rate of medical error  in the world  according to the World Health Organisation: http://www.who.int/whr/2002/en/; http://www.abc.net.au/news/indepth/featureitems/sick.htm .

• Up to 18,000 people die every year in hospitals through preventable medical negligence in Australia with another 50,000 suffering some type of permanent injury.

• 80,000 Australian patients per year are hospitalised due to medication errors .

• Australia's error rate indicates a serious problem in this country – almost twice as high as the US figure per admission, and three times as high per head of population.

REASONABLE CARE AND NOTHING MORE?

Not all medical errors are "negligent". Just because a person suffers a bad outcome from medical treatment, does not mean that they have an automatic right to sue for compensation. A medical error is only considered "negligent" if the healthcare practitioner has failed to take "reasonable care". The law does not require a doctor to act "perfectly", but rather, the law requires that a doctor take "reasonable care" in treating and advising a patient. This is not a high or impossible standard to achieve.

"It is expected of a professional person that he should show a fair, reasonable and competent degree of skill; it is not required that he should use the highest degree of skill . . ." 

Bolam v Friern Hospital Management Committee [1957] 1 WLR 582.

If the AMA had it's own way, doctors would be treated as a special class of professionals exempt from liability- http://www.abc.net.au/pm/stories/s610825.htm . But why should negligent doctors be treated any different from other professionals? Isn't it reasonable to expect that all professionals to whom we pay money to and who hold out as having expertise, must pay compensation if they cause damage through their incompetence or recklessness?

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PROVING MEDICAL NEGLIGENCE IS NOT EASY

If there is a failure to take reasonable care, the patient has to get over the "causation" and "damages" hurdles before they can sue. This is not as easy as it seems. Patients have  the onus of proof in court placed on them  to establish that a doctor has not only breached their duty of care by failing to provide reasonable care resulting in injuries, but they must also prove that the most likely cause ("causation") of their injuries was the doctors' failure to take reasonable care. This is very difficult to establish, given that most patients already have underlying illness and medical conditions, and it can sometimes be impossible to prove that a patient would have had a better outcome or a chance of a better outcome if a doctor had acted reasonably in the first place. Insurers will often purport to establish that a patient's injuries and disabilities are pre-existing conditions rather than caused by negligence, so as to avoid having to compensate the plaintiff.

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DOCTORS STICKING TOGETHER

In order to commence proceedings against a doctor, most jurisdictions require that the plaintiff have at least one supportive medico-legal opinion (that is a written report from an independent doctor) who supports the plaintiff's case on liability (breach of duty of care), causation and damage.

In NSW for example, lawyers cannot commence court proceedings without filing an expert report with the plaintiff's Statement of Claim. This means that if you can't find a doctor willing to speak-out on your behalf, then you simply cannot bring a negligence case in court.

The result of having a "close-knit" profession in Australia means that many plaintiffs have to pay for expensive reports from overseas medical specialists (especially from London). Not many people can afford paying 3,000 english pounds for an English obstetric opinion, for example. So basically, if you can't afford an opinion, and your solicitor wont pay for it, you will never know whether your treatment was negligent.

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MEDICAL PROFESSION -  BEHIND CLOSED DOORS

In 1992, the High Court case of Rogers v Whitaker held that the courts in Australia do not judge a doctors competence by reference to the generally accepted practices of the medical profession but whether it conforms to the standard of reasonable care demanded by the law. That meant that questions of competence were to be decided by the judges and the courts as opposed to the medical profession, on its own behind closed-doors.

However, over the past couple of years, extensive lobbying has taken place by the medical profession for changes to the law for medical negligence in Australia. Medical lobby groups have sought to have the governments legislate what is known as the Bolam test- where the negligence of a doctor is determined solely on the basis of other doctor’s opinions about the doctor’s conduct, regardless of what judges and the courts have to say. However, in Australia, the governments decided not to adopt the Bolam test outright, but rather, adopt a modified version that would still allow judges to reject doctors’ opinions in medical negligence cases, if their opinions are irrational.

The common law concept of professional negligence developed by courts and set-out in the decision of Rogers v Whitaker, has now been changed to a statutory definition in QLD, SA, NSW, VIC, TAS. A person practising in a profession ( "a professional" ) does not incur a liability in negligence arising from the provision of a professional service if it is established that the professional acted in a manner that (at the time the service was provided) was widely accepted in Australia by peer professional opinion as competent professional practice. However, peer professional opinion cannot be relied on for the purposes of this section if the court considers that the opinion is irrational.

It would be rare indeed to identify instances of treatment that is both irrational and in accordance with an opinion widely held by a significant number of respected practitioners in the field.

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THE VICTIMS ARE NOT ALL MONEY HUNGRY

• In a 1999 study reported in the Medical Journal of Australia, it was found that most of health care complainants were not satisfied with either the process or the outcome. Typically they wanted stronger measures taken. Only a few wanted compensation; more wanted acknowledgement of harm done; and most wanted the doctor punished. http://www.mja.com.au/public/issues/jun21/daniel/daniel.html
• Following medical negligence in Australia not every patient sues whenever something goes wrong. Most patients just want the mistake to be acknowledged, and for the doctor to apologise.

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WHY DO PEOPLE SUE?

• Imagine never being able to work again because of permanent brain damage caused by a doctors' negligence.
• Imagine not being able to clothe, feed or bathe yourself, and needing 24 hours a day attendant care because of a permanent healthcare injury.
• The purpose of compensation laws is to put the plaintiff back into the position they would have been, had the negligence not occurred. Compensation is calculated on the basis of need.
• Compensation is awarded for:
  • pain and suffering;
  • income you may have forfeited whilst recovering from the condition attributed to the negligence;
  • future income you may lose (known as future economic loss) as a result of the health care providers negligence; and
  • costs associated with treatment, medications, nursing services, rehabilitation courses etc to assist in the recovery and injury repair process.

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WHAT ABOUT THE PATIENTS LAWYERS?

• Getting a lawyer to deal with medical negligence in Australia is becoming more difficult and a common myth is that lawyers take on ANY case regardless of its merits, in order to make $$$.
• The commercial reality is that lawyers only take cases on if they believe there is a good chance of winning i.e if they are meritorious claims. Afterall, most cases are done on a No Win No Fee basis, so if the lawyer loses, then they won't get paid; there is just no financial incentive in running a frivolous claim.
• The government has almost completely done away with legal aid for medical negligence victims. If it wasn't for lawyers taking on the financial risks of running a medical negligence case, most Australian citizens would not be able to afford to pursue their rights.
• Also, under the Legal Profession Act, a solicitor cannot act for a party where there are "no reasonable prospects of success." There are serious consequences for a solicitor who does so; including cost penalties. Hence there is just no incentive to take on frivolous or vexatious claims.
• State governments have brought in legislation (such as the Civil Liability Act) which places caps on the amount of legal costs that a solicitor can charge in medical negligence cases.

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DOCTORS' PREMIUM INCREASES AND LITIGATION

The factors affecting premiums, as discussed by Dr Cashman in “The medical indemnity ‘crisis’”, Plaintiff, April 2000, page 4, are:

1. Variables affecting premiums such as claims, reinsurance costs, investment returns.
2. Historically low premiums and under insurance. Many medical defence organizations have been under funded for a number of years. Under funding can be caused by poor business operations and inadequate advice on subscriptions pricing.
3. Historically, claims liabilities have not been stated in the balance sheets. Lack of accounting provision for Incidents Incurred But Not Reported (IBNRs). These matters may relate to incidents going back 20 years. Recent attempts by UMP (United Medical Protection) to make provision for potential future claims has led to a substantial increase in estimated claims liabilities.
4. Lack of accountability as to management of claims, investment of members’ funds, and financial mismanagement, generally.
5. Increase in the rate of processing claims. Medical indemnity cases, between 1980-1989 took an average period of 6 years to resolve. This period was shortened to approximately 2.9 years in the period 1990-9. Cases in the District Court and Supreme Courts are being resolved much more expeditiously. Faster claims settlement has meant less return on investment premiums and member subscriptions.
6. Substantial defence costs incurred in defending claims.
7. An unreasonable refusal on the part of various medical defence organizations to settle claims resulting in an escalation in the legal costs for all parties.
8. Unreasonable rejection of settlement offers made by plaintiffs resulting in further delays, rising legal costs, and payouts that are larger than the amount which the plaintiff agreed to settle for. See for example, the case of Calandre Simpson, where a settlement offer around $10 million had been rejected by UMP. The case began in 1987. The damages award was in excess of $14 million. Similarly, in the Lipovac case, where the plaintiff had received $7.58 million in the ACT Supreme Court, and the plaintiff’s lawyers had offered to settle the case out of court, 4 years earlier for $2.2 million. (Fife-Yeomans J, “Insurers could have settled for less” The Australian, 7 November 2001, at page 2.)
9. Medical defence organizations, are discretionary mutuals and have not been covered in the past  by the Insurance Act, and therefore, were not been monitored by the Australian Prudential Regulation Authority. Whereas authorised insurers have been required to comply with solvency margins and reserve requirements.
10. Rising costs for medical insurers are due to services provided to members unrelated to civil claims for medical negligence. These include:
    • Provision of assistance in relation to complaints against doctors to the HCCC.
    • Investigation of complaints regarding overservicing.
    • Disciplinary proceedings.
    • Coronial Inquiries.
    • Complaints and other proceedings arising out of alleged sexual misconduct with patients.
    • Investigations of fraud.
    • A 24 hour legal support hotline.

Another cause of rising insurance premiums is the repeated damages pay-outs by UMP for negligence caused by “frequent flyers”- doctors who are sued for incompetence on numerous occasions and whose conduct is reported on a regular basis to the NSW Medical Board. It is suggested that  “frequent flyers” represent about 2% of doctors, and account for 42% of pay-outs by doctor’s insurance funds (Ferrari  J, “Bad doctors face action over claims,” The Sunday Telegraph, 1 April 2001).

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PATIENTS RIGHTS ARE TAKEN AWAY

It is important that the frequency of medical injuries is reduced through a focus on clinical quality. Medical indemnity funds should be encouraged to expand their efforts to alert their members to potential risks and provide training in risk minimization and better complaint handling.  Such strategies should be aimed at promoting quality practice and reducing the level of adverse events.  Greater encouragement of the medical profession is needed to extend peer review procedures to ensure that problems are identified at an early stage.

Greater government funding to the healthcare system is needed to reduce the incidence of adverse events and therefore reduce the potential number of litigants. Underfunding of the public healthcare system and cost saving methods applied by private hospitals for promotion of greater profits are an important contributing factor to adverse events.

Furthermore, a survey released by the AMA to the Sun Herald in 2000, revealed that trainee doctors in NSW are working up to 100 hours a week, with some on duty for at least 7 days at a stretch. Many are forced to work hours that put them at high risk of extreme fatigue (Shine K, “Trainee Doctors are ‘Reduced to Level of Drunk Drivers’”, Sun Herald (date unknown) 2000). Consequently, their workload is a potential danger to both them and their patients.

The government response to the rising number of incidents or adverse medical events has been to take patients' entitlements away from them. To take away these victims’ rights to compensation for their injuries, is to punish them again and has very real consequences of leaving them out-of-pocket when it comes to the cost of keeping a roof over their head and treatment for their permanent injuries and disabilities, for the rest of their life.

·    no interest will recoverable for non economic loss;

·     victims will not be able to make any claim with respect to exemplary or punitive damages;

·       claims for recovery of past and future economic loss (loss of salary and/or earning capacity) is restricted/capped;

·     claims for future damages items (including the cost for future medical care and equipment expenses) will be discounted by 5%;

·     claims for the cost of future domestic care restricted;  and future medical costs discounted by 5%;

·       a scale governing the seriousness of claims for non economic loss/general damages for pain and suffering  to the effect no pain and suffering damages is awarded for cases with permanent impairment less than 15%.

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HORROR IN QUEENSLAND

Are you a victim of “Dr” Vincent Berg (phoney psychiatrist), QLD?:

Phoney Psychiatrist’s havoc ‘hushed up’, (SMH, 03.08.05)

The Queensland Government has allowed the state health system to degenerate into one of the worst in the Nation:

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IGNORANCE IS BLISS - FOR THE NSW GOVERNMENT

The NSW government has now banned lawyers and non-lawyers (brokers) from advertising personal injury legal services. The consequences are a fine plus professional misconduct charges. Open any newspaper and you will see hundreds of advertisements for brothels and prostitution services, but you wont see a single ad by a lawyer explaining medical negligence in Australia and victims rights' to compensation- the government has made it illegal to do so (Part 14, Legal Profession Regulation 2002; Legal Profession Amendment (Advertising) Regulation 2005).

On the 1st of September 2005 by a 5-2 majority the High Court of Australia upheld the constitutional validity of a NSW ban on lawyers advertising their services in relation to personal injury claims under Part 14 of the Legal Profession Regulation made under the Legal Profession Act which makes it both an offence and professional misconduct for a barrister or solicitor to publish an advertisement that includes any reference to personal injury or to any legal service that relates to an entitlement to recover money for personal injury.

It’s worth mentioning here that Sydney’s 50+ legal brothels still manage to blast their message out across the media without fear of retribution and that’s not including the other 200 unregistered brothels that also advertise with impunity. Not many of their proprietors get a criminal record but your local solicitor just might if he publicly tells you about your legal right to compensation for personal injury in an NSW newspaper.

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READ ABOUT THE BLUNDERS IN OUR HOSPITALS:

Reported cases:

• Brain damage and depression sustained during sleep therapy and electroconvulsive therapy at Chelmsford Private Hospital; Tweedale v Herron & Ors (NSW) 23.04.1997. See also Crawford v Bailey 17289/80 NSW.
• Baby suffered brain damage caused by wrong drug being administered to her mother shortly before birth. The drug caused a long contraction of her mothers' uterus which cut off the blood supply (and hence the oxygen supply) to the baby's brain; Southern Regional Health Board v Grimsey; FCA 89/1998 (TAS).
• Unnecessary removal of a uterus; Loveday v Austin Hospital & Ors (VIC).
• Negligent attempted manual removal of placenta; Lunn v Giblin [1998] NTSC 56 (NT).
• Negligent management of labour resulting in baby suffering brain damage/cerebral palsy: Simpson v Diamond & Anor [2001] NSWSC 925
• Inadequate pain relief during caesarian section; Tucker v Hospital Corporation Australia Pty Ltd & Ors Matter No 12575/92 [1998] NSWSC 37 (18 February 1998)
• Appellant underwent spinal fusion. Anesthetist left arm up. Ulnar neuritis developed. Reflex sympathetic dystrophy developed as a result of corrective surgery: Harwood v Gayler& Cleland [1996] QCA 461 (1 November 1996)
• Administration of drug overdose (Anginine); Wilson v State of Tasmania (1999) TASSC 145.
• Negligent administration of aminophylline and/or phenobarbitone leading to the respiratory
  compromise of the plaintiff which in combination resulted in hypoxic severe permanent brain damage: Tomislav Lipovac bhnf Maria Lipovac v. Hamilton Holdings Pty Ltd, Peter Black, Tom Gavranic and The Australian Capital Territory No. SC501 of 1993 Number of pages - 87 Negligence - Expert Evidence - Damages [1996] ACTSC 98 (13 September 1996)
• Baby suffered traction injury to spinal cord and died 5 weeks later; A M Strelec v D Nelson & 2 Ors (90012401) (NSW).
• The plaintiff's wife suffered irreversible brain damage following termination of pregnancy carried out by the defendant doctor: Marinko v Masri [1999] NSWCA 364
• Death of 4 week old baby. Death conceded to have been caused by negligence: Lamphud Marchlewski, Roman Marchlewski and Delores Marchlewski (by her next friend Lamphud Marchlewski) v Hunter Area Health Authority (NSW)
• Misdiagnosis; failure by surgeon to inform patient of malignant breast tumour: Kite v Malycha 10.06.1998 (SA).
• Failure to diagnose breast cancer: Tran v Lam (NSW) No. 20359 of 1996.
• Attendance at clinic for Pap Smear. Test results indicated carcinoma cells. Failure to communicate information to patient. 14 month delay in receipt of results. Consequent need to undergo full hysterectomy: Wolf v Punitham 29.05.98; Supreme Court NT.
• Negligent failure of doctor to diagnose bowel cancer: Sturch v Willmott [1995] QCA 521 (22 November 1995)
• Negligent orthopaedic surgery; sacral screw too deep: Hillier & Carney v. Lucas No. SCGRG-94-694 [2000] SASC 331 (24 October 2000)
• Plaintiff underwent medical procedure to remove lymph node from neck. Plaintiff's occipital nerves severed during procedure: Reid v Basson [2000] QSC 310 (8 September 2000)
• Failure to diagnose bilateral hip dysplasia: McInnes v Ahluwalia [1999] NSWSC 818
• Failure to diagnose bacterial endocarditis: Mann & Ors v. Flinders Medical Centre No. SCGRG-96-2351 Judgment No. S236 [1999] SASC 236 (4 June 1999)
• Plaintiff aged 1 yr, 10 months. Admitted to hospital for cauterisation of nose bleeds. Left in recovery unsupervised. Suffered cardiac arrest: Loo v Harbord Administration Pty LTD (Trading as North Harbour Private Hospital) 14605/86) NSW;
• Mr Griffin, a nurse, was convicted and sentenced to imprisonment in 1999 for sexual offences. The charges for which Mr Griffin was convicted and to which he pleaded guilty can be grouped and summarised as follows: sexual intercourse with males between 10-18 years; inducing a child to participate in an act of child prostitution; aggravated acts of indecency; employing a child for pornographic purposes; indecent assault on a minor by a person in authority over that minor; and indecent assault.

• The NSW Medical Board complained that an anaesthetist was suspected of diverting anaesthetic for self-administration, breaches of clinical standards and patient care during surgical procedures, and administration of watered-down anaesthetic to patients to allow diversion. The anaesthetist had allegedly taken the anaesthetic pump home to practise techniques for bypassing the security system to allow for substitution of generic anaesthetic, had taken home used syringes, and had repeatedly left a sedated patient in closed theatre to go to the toilet before a planned urine test.

• The Commission made a complaint against Dr Aslam of unsatisfactory professional conduct and professional misconduct. The practitioner met the patient when she was admitted to the accident and emergency department of the hospital where he worked. The complaint alleged numerous boundary violations by the medical practitioner including inviting the patient to his motel room, giving her his mobile phone number, permitting her to shower in his room at the motel, providing her with a meal and discussing matters personal to the patient and himself. The complaint also alleged that the practitioner had sexual intercourse with the patient. The Tribunal found that the practitioner exploited the patient to gain sexual gratification by an act of nonconsensual sexual intercourse.

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