Medical Negligence – Paralysis following sinus surgery

In the days following a simple sinus surgery, Melbournite Daniel Hogan started to develop flu-like symptoms. His surgeon reassured Mr Hogan that the symptoms would eventually pass, but what happened next changed his life forever.

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Before the operation, Daniel Hogan was an avid exerciser. He would run almost every night and practiced yoga regularly. Now, the 38-year-old is partially quadriplegic; having developed meningitis from complications arising from sinus surgery.

According to a statement filed in the Supreme Court, Mr Hogan telephoned his surgeon Ron Trower two days after being discharged from a Melbourne Hospital. The surgeon reassured him that the flu-like symptoms were probably just a virus.

Several days passed as Mr Hogan’s condition deteriorated dramatically. He was eventually taken to the emergency room and their surgeons found a defect in his nasal cavity that had allowed the cerebrospinal fluid to leak, causing meningitis.

Mr Hogan has since been left permanently disabled form the neck down.

He finds it difficult to walk 100 metres, has zero sexual function, and is forced to use a catheter to drain his bowels.

The question remained, was it anyone’s fault?

THE CASE

Mr Hogan has recently decided to sue his surgeon for failing to provide proper care following the surgery. Mr Trower and the Royal Melbourne Hospital have denied any negligence in their treatment of Mr Hogan, but some law experts believe that along with the future lose of earnings, cost of medical treatment, household assistance and damages for pain and suffering, a compensation figure of $2million could be reached.

If not settled through mediation, the case is set for trial in November.

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.

WHAT CAN WE LEARN?

A tragedy like Mr Hogan’s has reinforced the principles that medical practitioners have a duty to warn their patients of all risks involved. Extra care must be taken by both doctors and hospitals to ensure our sick receive the best possible care that’s available.

THINK YOU HAVE A NEGLIGENCE CLAIM?

Then contact a lawyer.

It’s important you speak with someone who has experience in medical negligence as the cases are extremely complex. Time limits also apply in these types of scenarios, so early investigations are essential.

Head to our homepage if you’re seeking further legal advice.

 

 

The Use of Photographic Evidence in a Medical Negligence Claim: will they be admissible in court?

Medical Negligence claims are harrowing experiences at the best of times. A medical negligence claim is only going to come across our desk when someone has or is suffering, perhaps, due to the fault of another. Evidence in these cases is crucial, but what is admissible in a court of law?

Medical Negligence

Proving medical negligence isn’t as simple as a snap of the lense.

Image from Shutterstock

Photographic evidence is a court staple when it comes to criminal and civil proceedings. But when it comes to medical negligence claims the area around photographs is a little more grey. Photographs will often appear in court during the course of a medical negligence case. They are displayed to the jury in an effort to support the claimant’s testimony. In the past, these photographs would have typically been taken by members of the police force rather than a forensic physician. In as such, it’s arguable that they are not as good or accurate evidence as a detailed medical record when it comes to proving the extent of injury or illness in an individual.

Move on a bit, and we have a proliferation of affordable camera devices on hand at all times — your Macbook, your smartphone, etc. All these devices come with amateur photo-editing suites, apps and software that a large amount of the populace are highly familiar with and feel comfortable using.

Whilst the accuracy of photographic evidence when images were not taken by a forensic physician was hard enough to prove when factors like shadowing, light and saturation came into play, legal teams now have to prove filters or effects haven’t been transposed over an image causing injury to appear worse than it it/was.

In the end, a physical examination is always considered to have more weight in court that photographic evidence. In cases when it is suspected death was the result of medical negligence the autopsy of a body, even one that has been buried, is considered preferable to photographic evidence.

A case of medical negligence?

In the case of Masters bht Masters v Sydney West Area Health Service[1], Justice Davies of the Supreme Court of New South Wales dealt with an interlocutory application by the defendant to remove the plaintiff’s expert medical opinions on the basis the experts had relied on photographs of the plaintiff where authenticity could not be established.

In this case, the plaintiff, an infant, was born at the Blue Mountains Hospital following a normal birth. The child seemed to be suffering from jaundice some days after the birth. Clinical notes included entries, commentary on the skin tone of the child, made by midwives who were taking care of her. Eventually a blood test was performed finding elevated levels of bilibrium – a finding consistent with the a diagnosis of untreated jaundice. The allegations of negligence focused on the hospital’s delay in diagnosing and managing the condition, leading to brain damage and cerebral palsy, and whether better management and earlier intervention would have avoided the infant’s horrific injuries.

Expert testimony was given on behalf of the plaintiff by both a neonatologist and and a midwife.

The neonatologist initially formed his opinion on the case based on the medical notes made by the staff at The Blue Mountains Hospital. In a later report he also viewed the photos, taken on a standard digital camera by the plaintiff’s father, purported to show a worsening of the child’s condition. The midwife saw both the clinical records and the photographs at the same time.

The defendant argued that neither the neonatologist or midwife had any prior knowledge of portrait photography or editing. Their argument relying on the testimony of the purported expert photographer to cast doubt on the ability of the plaintiff’s father to accurately depict her skin tone at the time the photographs were taken. Consequently they argued that if the plaintiff was unable to authenticate these photos than their expert testimony was inadmissible as they believe the photographic evidence played a significant role in forming their medical opinions.

However, the “expert” photographer proved to be less than erudite in his profession. Justice Davies noted that the defendant’s expert seemed to be inexperienced in the preparation of expert reports and didn’t seem to grasp how the photographs were important to the plaintiff’s claim. He also failed to produce a C.V and failed to define a range of specific photographic terms. His evidence  was ultimately ruled inadmissible by Justice Davies.

The photographs and expert testimony of the plaintiff were allowed to pass before the trial judge; the accuracy of the photographs was to be a matter for he/she to determine.

The plaintiffs were lucky their medical expert’s had already formed their opinions based on the clinical notes rather than on the viewing of the photographic evidence. Rather, the photographs of the plaintiff had only served to reinforce their opinions that delayed treatment was responsible for the degree of her injuries.

What does it mean?

When it comes to medical negligence cases lawyers need to consider that their expert witnesses are not legal professionals. In such, they need to assist their witnesses in the proper preparations of expert reports, ensuring that they are compliant with the requirements of the UCPR and relevant case law. Furthermore, legal professionals must be aware that the use of photographic evidence in medical negligence cases may be inadmissible if expert medical testimony can’t be proven to stand on its own. Photographic evidence is highly susceptible to interpretation and therefore should only be used to support an expert’s testimony, not form the backbone of it.

If you have photographic evidence you feel would be beneficial to your medical negligence claim seek legal help immediately. if you have taken the photos yourself, or they have been taken by a friend or family member, ensure that they are taken in good lighting and have not been edited in any way.

Medical Negligence Fact Sheet

Medical negligence is a serious issue in NSW with reports that claims are perpetually on the rise. Today on the blog we’re breaking down medical negligence into easy to understand terms to help you wrap your head around what can be a confusingly complicated issue.

Medical Negligence

Medical negligence is a complicated issue you should seek professional advice about immediately.

Image from Shutterstock

Health care providers have a duty of care when it comes to the treatment and health of their patients. If a patient suffers injury or harm as a result of the inadequate care of a health care provider, then the patient, or at times their family, may be able to make a claim for financial compensation.

Along with medical negligence claims, claims may be also made for ‘failure to warn’ or lack of informed consent, this includes instances of when doctors or medical professionals have not fully outlined and explained the risks involved with a medical procedure, medication or treatment, which the patient if aware of possible risks would have refused.

Medical negligence claims are always complicated. It is crucial to  the vitality of your claim to prove a connection between medical error and illness or harm.

What is medical negligence?

Not all medical errors are by legal definition negligent. Negligence, in the legal sense, is only considered such when a healthcare practitioner has failed to take “reasonable care”. The law doesn’t require that doctors, hospital staff and healthcare providers be infallible, instead that they take “reasonable care” in advising and tending to patients. You may not have a claim if the standard of care that you received is comparable to that of another medical provider in the same field within Australia.

Who pays medical negligence compensation?

All medical professionals are required by law to have Professional Indemnity Insurance (PII), so in the event of accident, injury or harm it is the insurance provider that will pay the cost of any awarded compensation claim.

What does compensation cover?

Compensation by design is meant to reimburse a claimant for their losses. The amount calculated is based on the extent of damage or harm suffered, not the degree of negligence that occurred.

Compensation payments may include:

past and future medical expenses;

past or future wage loss;

home and car modifications;

loss of life expectancy;

costs associated with a trustee managing your money;

damages for pain, suffering and the loss of enjoyment of life; and

personal care or nursing assistance, either by professional agencies or family members.

Are there time limits on a medical negligence claim?

Like with many areas of the law there are time limits on the time between event and claim when it comes to your medical negligence suit. Most Australian state and territories have a three year time limit in which you can claim for compensation.

The three years runs from the time of the negligence or in some cases, from the time the negligence was first discovered.

Claims may be made outside of the three-year limit if the illness caused from negligence was not found immediately.

BPC recommend you seek legal advice when you first suspect medical negligence in order to not miss out due to liability time frames.

Medical Negligence Lawyers Help Improve the Standards of Australia’s Medical Profession

Victims of medical negligence can feel like docors are constantly getting away with poor professionalism but medical negligence cases and lawyers are actually helping to create new medical standards as well as improve existing ones, according to speakers at a recent conference in Sydney.

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 Image sourced from Shutterstock

There’s an unfair and untrue belief that medical negligence cases are forcing doctors to now act in a defensive manner, so as to best protect themselves from any future lawsuits, without actually treating the patient as effectively as they could. In reality, legal cases in the medical world are often published in well-read medical journals meaning that there’s more discussion and awareness of what acceptable practice is. This discussion has led to improvements in the quality of care patients are receiving.

Part of this improvement in the quality of care provided for patients is that doctors are more aware of the importance of discussing with and getting patients more involved with their own health care. These discussions also included better explanation and counselling about side-effects and risks of treatments. Previously, many doctors had felt too busy to become engaged with each individual patient to this level, including making detailed histories, but the rise of medical negligence cases has made it apparent to doctors that this time needs to be made if they wish to continue in the profession.

Detailed histories are highly crucial in medical cases, particularly those that could be seen as negligent, as keeping documents that including patient histories, diagnoses, other potential diagnoses (including rare but dangerous conditions), management plans and a follow-up plan as they are in fact Medicare consultation requirements. Already a doctor’s case looks shaky if they are shown to not be following required procedures, but these documents are what form the basis for a doctor’s defense.

Though medical negligence is extremely horrible, a successful medical negligence case can definitely have far-reaching consequences to how the Australian medical world operates. To find out more about medical negligence take a look at Obesity and Medical Negligence: Where’s the Line?.

Obesity and Medical Negligence – Where’s the Line? | BPC Lawyers Blog

Almost one quarter of Australians are overweight but you wouldn’t blame their doctor for it, would you? Surely obesity is an issue for the individual and not something that a medical negligence lawyer needs to become involved with. Surprisingly, one Sydney doctor recently faced charges of medical negligence because of the obesity of his patient.

Medical Negligence

Image sourced from Shutterstock

Late last year, a court awarded Mr Luis Almario $350,000 as a payout in a medical negligence case. According to Almario his GP, Dr Varipatis, had failed in his duty of care for him by not referring him to bariatric surgeon who could perform a lap-band surgery or weight loss clinic to reduce his weight.

When Almario started seeing his GP in 1997 he already weighed over 120kg, well above what the average man should. But it’s not just the man’s weight that the case is concerned with.

When Almario started seeing Dr Varipatis he had a form of liver disease. Over the course of their patient-doctor relationship this liver disease progressed to cirrhosis, liver failure and then liver cancer.

The theory was that if the doctor had referred Almario to some form of weight loss treatment he wouldn’t have experienced liver failure.

However, Dr Varipatis appealed the decision and was successful. A three-judge panel decided that the initial ruling was nonsense and that a doctor’s duty of care only extends to discussing weight-loss options with a patient.

They believed that if he’d referred Almario to a weight-loss clinic it wouldn’t have been successful, as it really is only the individual who can make the decision and commitment to lose weight.

Questions were also raised as to the pointlessness of trying to convince Almario to lose weight.

Medical negligence can certainly cover some tricky ground and no two cases may have similar results.

If you’d like to read more about medical negligence and the work of medical negligence lawyers, see Medical Negligence: When It’s Worse Than It Seems.

Additional source:http://www.medicalobserver.com.au/news/gp-hails-appeal-victory-in-364k-obesity-case

Are Medical Boards Too Soft When It Comes to Negligent Doctors? | BPC Law Blog

There are over 500,000 medical professionals working in Australia and with such a huge number you can be sure that there’s at least a small percentage of healthcare workers who aren’t up to scratch. Medical negligence is often only ever talking about in hushed voices and it can be extremely frustrating and upsetting for both victims and their lawyers when the perpetrator is allowed to continue to work or even gets completely away with it.

Medical Negligence

Image sourced from Shutterstock

When a doctor or healthcare professional is accused of being negligent in their duty of providing the utmost of care to their patient the wheels of the review system can turn very slowly indeed. It’s normally only a small percentage of doctors who are complained about, but these doctors are the ones who are complained about all the time. There’s even been estimates that out of all the complaints made about medical professionals in Victoria, three percent of the total number of health workers in state are responsible for more than half of the complaints received, yet these people still continue to work in this industry.

The big problem is when it comes to punishing doctors for cases of medical negligence it’s the fact that to prove medical negligencea supporting argument must also be made by another practicing doctor. In fact in NSW, a medical negligence case cannot begin without this crucial support. Unfortunately the community of medical professionals is well-established from university and beyond and it can be extremely difficult to find a doctor who will support your case within Australia. So what can you do?

In the case of medical negligence, to achieve any sort of improvement in the treatment of victims and the subsequent punishment of offending doctors it’s important that everyone who has suffered speaks up and attempts to get their case to court. There’ve already been successes, for instance, in the case of Dr James Peters who infected 55 women with Hepatitis C, Dr Peters was jailed for 14 years.

If you’re interested in learning more about the prominence of medical negligence take a look at Medical Negligence Claims on the Rise for GPs.

Medical Negligence Claims on the Rise for GPs | BPC Law Blog

When it comes to medical negligence, it’s not just surgeons in hospitals that are at risk of being taken to court. Over the past few years there’s been a dramatic increase in the number of patients who are filing medical negligence claims against their local GPs. There are literally hundreds, if not thousands, of GPs in the Sydney area, but only a handful find themselves face to face with a medical negligence lawyer, which raises the question of why are people filing for medical negligence against their GP?

Medical NegligenceImage sourced from Shutterstock

More than half of the medical negligence claims against GPs are due to wrong or missed diagnoses. We’ve all been to one doctor or another and felt that they haven’t really listened to what we’ve said about our symptoms, or they haven’t been as rigourous in their testing as they could be. Most people then choose to see another doctor to get a second opinion, but is this really the best thing you can do?

This is where claims of medical negligence come in. The NHS in the UK recently suggested that it would create a database accessible to patients that would record important data about their GPs and relevant practices. This database would allow patients to look up their local medical practice and GP and see what percentage of errors they make within a certain time period meaning they can find a quality GP. Realistically, it would be very easy for the media to abuse and manipulate the facts of this database, and it was shouted down by medical organisations.

At present the best way, all around the world, to make sure that a GP who provides poor care is properly handled is to file a medical negligence claim. This is why we’re seeing such a huge rise in medical negligence claims across the world. For the meantime the onus is on the patient to make sure that GP doesn’t continue to get away with poor service.