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.

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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.

Too Hot to Handle: extreme weather conditions and your WorkCover rights

Workers Compensation

Work too hot to handle?

Image via shutterstock

Paramedics have been called out to over 30 cases where workers have suffered heat stroke or exhaustion during the latest spate of extreme heat in south-east Australia.

As escalating temperatures scorch the countryside, health experts have started issuing public warnings about the dangers of strenuous activity and extreme heat.

It’s important that workers understand that they have the right to work in a safe environment and that employers understand it’s their responsibility to provide that safe workspace; be it extreme heat or cold, the weather has the ability to impact upon the physical and psychological condition of employees.

So what are your rights when it comes to extreme weather conditions? Do you have to sweat through the midday sun during 43 degree heat risking dehydration; is frostbite a legitimate risk for essential outdoor workers during extreme cold?

Work involving hot or cold temperatures can result in a range of symptoms from irritation to life threatening conditions. Employers must understand it is illegal to expose their employees to extreme heat or cold, but you might be asking yourself…how are these conditions determined?

HEAT ILLNESS

For a workplace to be considered unfit because of high temperatures, the following factors may contribute:

*High temperatures

*Exposure to high thermal radiation

*Close proximity to high levels of humidity

*Amount of air movement

*Physical activity (metabolic heat load)

SIGNS AND SYMPTOMS

Heat illness covers a large array of medical conditions that arise from your body not being able to cope. These conditions may include:

*Fainting

*Stroke

*Heat exhaustion

*Heat cramps

*Rashes

*Fatigue

LEGAL OBLIGATIONS

The NSW Occupational Health and Safety Regulation guidelines state that’s important to distinguish between a condition, which threatens the health or safety of a worker, and a feeling of discomfort.

Thermal discomfort may occur in an office on a hot and humid day where there is no functioning air-conditioning, and whilst measures should be taken by the employer to ensure the comfort of their employee, there is minimal risk of a medical condition developing.

However, Heat exhaustion and the even more severe, heat stress, are medical conditions which should be addressed by a medical professional. Heat stress is a medical emergency and an ambulance should called if an employee shows worsening symptoms.

These conditions, along with hypothermia or frostbite, which can occur in extreme cold, are serious health complications which can lead to long-term medical problems and even death.

Both inside and outdoor workers are vulnerable to these conditions; depending on their industry and working conditions, ie. an employee working in a bakery around ovens on a high-temperature day is placomced under a similar degree of physical duress as a landscape gardener is under those same weather conditions as their work exacerbates the heat.

Simple steps can be taken by an employer to ensure that their employees are as safe as possible during these times, whilst still placating workflow deadlines. Employers should consider rescheduling working hours and altering schedules so that heavy lifting or laborious work is rotated fairly amongst staff. Staff should be fitted out with appropriate work wear for the weather conditions, and in extreme heat, water and sunscreen should be distributed regularly. Those working from great heights or with potentially dangerous machinery should be considered at most risk — heat fatigue may not be of  much concern as a health condition, but fainting at the controls or heavy machinery or a high apparatus could potentially cause unprecedented harm.

Work Health and Safety Legislation should be checked regularly by employers and by those staff who want to know more about their rights in the workplace.

The WorkCover website has the following legal recommendations for employers:

“A person conducting a business or undertaking (PCBU – the new term that includes employers) must ensure, so far as is reasonably practicable, that workers carrying out work in extremes of heat or cold are able to carry out work without a risk to their health and safety.

Personal and environmental factors should be considered when assessing the risk to workers’ from working in a very hot or cold environment.

Personal factors include:

  • the level of physical activity
  • the amount and type of clothing worn
  • the duration of the exposure.

Environmental factors include:

  • air temperature
  • the level of humidity
  • the level of air movement and radiant heat.’

For more information, the code of practice for Managing the work environment and facilities provides guidelines on how to minimise or eliminate exposure to extreme hot or cold conditions.

NSW Government’s WorkCover website’s “Working in heat” fact sheet can be found here: WorkCover- Working in heat

Sydney MP says changes to workers compensation laws have made the process “harder”

NSW’s worker’s compensation laws have changed; one Sydney MP says the changes haven’t been for the better.

Workers Compensation

Are our workers still protected?

Image via Shutterstock

Caption: Are our workers still protected?

When premier Barry O’Farrell brought in his massive 2012 overhaul of workers’ compensation laws, the intent was to rein in a $4 billion WorkCover deficit.

At the time, New South Wales workers compensation premiums were doubling those in Victoria and it was clear something had to be done.

For O’Farrell, getting WorkCover right represented a significant drive in economic improvement. But two years later, has it all gone wrong?

Here’s what we know so far.

1. Claim complications

Workers’ compensation claims have nearly halved in the Bankstown area since the new laws were introduced in June 2012. Sydney Labor MP Tania Mihailuk believes this falling-off has been due to changes made in the actual claim process rather than less accidents occurring in the workplace.

Some have reported that filing a claim is more difficult now than it has been in the past with overly complicated paperwork, unclear requirements and conflicting laws.

2. The impact.

The 2012 changes to compensation laws involved the scrapping of workcover for employees injured during travel to and from work. There were 860 less claims made in the last two years by residents in Mihailuk’s ecectorate of Bankstown.

3. Controversies

There have been ongoing reports of medical benefits and weekly payments for injured workers being reduced or cut off altogether. According to Tania Mihaliuk, where legal fees were previously covered by the law, injured workers must pay their own legal costs whether or not they win the case.

Finance and Services Minister Andrew Constance has refuted these claims and insists the claims process for individuals have not changed as part of the reform.

Final thought.

It’s too early to give O’Farrell a damning assessment of his new compensation laws but judging from personal accounts, work needs to be done.

Do you think workers should be compensated if injured on the commute to and from work?

Money gets saved by a tightening of the belt, but at what cost for our workers?

A QUICK LOOK AT WORKERS’ COMPENSATION

In June 2012, the New South Wales government brought in changes to the Workers’ Compensation Scheme. These reforms were intended to improve financial support for seriously injured workers and provide assistance for workers returning to employment with a particular focus on:

*Bettering financial support for injured workers.

*Encouraging financial sustainability.

*Assisting injured workers in their return to work.

workers compensation

Fair or faulty?

Image via Shutterstock.

Questions have since been raised about the fairness of the scheme, especially when a bureaucrat had her compensation denied.

So is the workers compensation scheme fair or faulty? Let’s take a look.

MARTINA MARTINEZ

When Canberra bureaucrat Martina Martinez was bullied through compulsory private counselling sessions, she lost her fight for workers compensation. After working with a national indigenous cadet program, Martina quit her job after the job significantly contributed to her mental illness.

Martinez was shocked to find her compensation claim was denied because a manager took “reasonable administrative actions”. This was further supported by the commonwealth public service workplace insurer Comcare who rejected Martinez’s claim because there had been reasonable attempts to improve her work.

A positive outcome for Martinez seemed hopeless until the Administrative Appeals Tribunal found Ms Martinez had been humiliated and unfairly treated. The tribunal went against the official workers compensation guide to bullying that says ”management action is reasonable if conducted fairly, transparently and in line with approved processes”.

Justice Alan Robert commented on the case, saying an employee’s reaction could not be relied upon when determining if the manager’s action was reasonable or not and ”some degree of humiliation may often be a consequence of a manager exercising his or her legitimate authority at work”.

In a decision published last week, it was ruled that Ms Martinez suffered from a mental illness of which her employer, and supervisor’s actions, contributed to a significant degree.

From this case alone, it’s clear that the workers’ compensation scheme isn’t blemish-free and more work needs to be done to ensure fairness for all workers.

HOW TO FILE FOR WORKERS COMPENSATION

WorkCover provides simple steps to apply for compensation.

Step 1: Contact the insurer first

Your case manager at an insurer is the first point of contact for all complaints and disputes. These managers are familiar with your circumstances and are better trained to handle the dispute.

Step 2: Contact WorkCover

If you are dissatisfied with the outcome or decision an insurer makes, we recommend you contact WorkCover on 13 10 50.

WorkCover reviews your dispute and ensures management of the claim is in accordance with workers compensation legislation and policy.

Step 3: Further assistance.

If further action is required and WorkCover can’t help you with a dispute, these are additional and more specific areas you can seek assistance from:

• NSW Ombudsman – ombo.nsw.gov.au

• Workers Compensation Commission – wcc.nsw.gov.au

• Administrative Decisions Tribunal – adt.lawlink.nsw.gov.au