Failure to Warn: A recent case of medical negligence

What duty does a doctor have when warning their patients about possible medical risks?

A recent case has made law-makers question what is required by our doctors and what grounds patients have to claim.

medical negligence lawyers

What happens when it all goes wrong? Image via Shutterstock

WHAT IS MEDICAL NEGLIGENCE?

Hospitals, doctors and health care providers have a duty to take proper care when treating patients. If a patient were to suffer injury that came as a direct result of inadequate skill or care then the patient (or family) may be able to make a claim for financial compensation.

Medical negligence claims are also extremely complex. Not every outcome results in a claim and it’s crucial to demonstrate a connection between the error and negative outcome.

THE CASE

When Ian Wallace underwent a surgical procedure involving his lumbar spine, there were two risks Mr Wallace never got told about. These were:

1. A temporary local damage to the nerves (Neurapraxia) caused by lying face down on the operating table for a lengthy period; and

2. A one-in-20 chance of permanent paralysis which would result in damage to his spinal nerve.

When the procedure was unsuccessful and Mr Wallace did in-fact suffer Neurapraxia, Mr Wallace attempted to sue his surgeon for negligence. The court found that Mr Wallace’s doctor failed to provide sufficient warning but the claim failed because Wallace would still have undergone the surgical procedure despite the risks. It was found that there was no causal connection between the failure to warn and Wallace’s Neurapraxia. The trial judge declined to make any findings in relation to the surgeon’s failure to warn of the surgery’s risk of paralysis, and about whether or not Mr Wallace would have gone through with the procedure if he had known of this risk, on the basis that this wasn’t relevant since the risk did not materialise.

 IMPLICATIONS

This decision reinforced the principles that medical practitioners have a duty to warn a patient of all material risks involved but in order for a medical practitioner to be held liable, the patient (and plaintiff) must prove the breach was causative of the harm that eventuated.

THINK YOU HAVE A NEGLIGENCE CLAIM?

Then contact a lawyer. It’s important that you communicate with someone who has experience in medical negligence cases as they are extremely complex. Time limits also apply so early investigations are essential.

Recreational and Adventure Operators Protected from Liabilities

“Obvious Risk” saves Operators from Compensation Claims

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The possibility you’ll get hurt is all part of the charm, right?

Recreational and adventure operators can breathe a sigh of relief as a recent court decision helps protect them against liability charges.

For many, the thought of jumping out of a plane, firing paintballs throughout the Australian bushland or skiing down Perisher Blue’s frosty slopes is an exhilarating one; the physical exertion, the challenge of conquering your fears, the camaraderie built amongst mates and the rush of adrenalin that will leave you with stories for decades to come is enough to fork out the bucks for. But it has finally been recognised that we must face these fears with our eyes open to the fact that injury, even the possibility of death, is ever present.

In the case of Action Paintball Games v Barker, the defendant, Action Paintball Games, successfully appealed the awarding of damages of $280, 000 to a young plaintiff who had sustained injuries after tripping on a tree root whilst running. The child (under 10) had been spoken to by employees of Action Paintball, in the presence of her father, and warned that due to sticks and general debris that running was not advised.

Whilst the trial judge had found that tripping on a tree root was not an obvious risk in this case, as the child had never played laser tag before and the bush land she was playing in was not natural bushland, the Court of Appeals disagreed. They found that APG had issued a warning to the plaintiff and that there was no duty of care owed to her.

What this means for liability compensation?

Participants seeking  the thrills and spills of adventure and recreational activities must not expect to do so wrapped in cotton wool. ‘A balance must be struck, ensuring that operators provide a relatively safe experience, but not necessarily risk or injury free. Most people participate in organised sport on that understanding,’ writes Ross Donaldson, of Colin Biggers and Paisley.

The success in the Court of Appeals for Action Paintball is just one amongst a slew of recent cases demonstrating a growing trend towards pragmatism in the courts as opposed to restrictive measures.

This is good news for operators who feel the fear of their adventure activity centres being shut down, or sent into financial ruin, following legal actions. Whilst the definition of “Obvious Risk” will be open to some interpretation in the courts, operators can feel less burdened by the pressure of going through overly comprehensive risk assessments with patrons for fear of scathing litigation.

It’s important that both recreational and adventure operators and their patrons understand the risks involved with their activities. The recent crash, resulting in the devastating death of five skydivers at Caboolture, is a harsh reminder of the risks we take when we participate in such activities.

A Guide to Dressing for the Courtroom

When it comes to dressing for court, how you look is extremely important.

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“First impressions last”
Image via Shutterstock

Wouldn’t it be nice if we lived in a world where judgements came solely from character? A world where clothes and personal appearances held little social weight? 

Sadly, that just isn’t the case.

Humans respond very strongly to visual stimuli and judgements are made in snap decisions. This is particularly seen in a courtroom where judgements might dramatically affect sentencing.

Because of this, here are the top ten things to remember when dressing for court:

1. Ditch the hat

It might seem obvious, but wearing a hat inside is considered ignorant and disrespectful. Don’t take the risk, leave your baseball cap at home.

2. Cover tattoos

Tattoos might be more accepted these days in pop culture but a judge 40 years your senior might not share this same liberal outlook. To be safe, hide all tattoos with clothes and makeup.

3. Grooming

Brush hair, brush teeth and iron clothes. Basically present the most neat and upstanding version of yourself. This is the one environment where your neatness is under the most scrutiny, so make that extra effort!

4. Minimise jewellery

Less is more when it comes to rings and necklaces. Judges aren’t impressed by how much “bling” you have and don’t approve of flashy earrings or bracelets. A wedding ring is okay but tone down the glamour…this is court, not the runway.

5. Abide by the dress code

This is our final and probably most important piece of advice when dressing for court: most courthouses will have a dress code and this information can easily be found on a website or by calling and asking. If you aren’t sure whether a suit is compulsory or sneakers are banned, then this is the best way to be sure.

Who Benefits from WorkCover: The workers or Employers?

On the WorkCover website their mission statement is ’to increase the competitiveness of the NSW economy through productive, healthy and safe workplaces’.

Workers Compensation

Can an employee rely on WorkCover when injury strikes?

WorkCover promises a productive and safe place to work. However, after an independent report uncovered some damning truths, it has to be asked: who really benefits from this scheme – the employers or the employees?

An independent report into WorkCover recently discovered that New South Wales workers compensation was, in fact, skewed toward employers. The report found that workers have more restrictions than insurance companies who use lawyers than employees who do not. This sort of legal advantage can’t be underestimated: without a lawyer, most workers will not receive information about eligibility for compensation, and to compound that impact, insurers are not required to tell workers about their right of appeal.

With the criticisms of WorkCover piling up, this lack of communication between those injured, insurance companies and WorkCover is perhaps the most damaging of all. Sometimes the most disadvantaged – for example, those with mental injuries – are often treated the worst and their lack of education ensures the big insurance companies win the uneven fight.

The response from WorkCover has been a statement reassuring the scheme’s critics that they are working with the Independent Review Office to make sure employees are educated about their options and rights. Even with this response, it’s clear that more work has to be done by WorkCover to ensure both the employer and employee benefit fairly from the scheme.