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Symptoms and Causes – Causation and Quantum in Medical Negligence
What area(s) of law does this episode consider? | Medical negligence and the calculation of damages. |
Why is this topic relevant? | Beyond film and television medical negligence is not often sensational, it is often tragic and requires compassion and understanding from lawyers working in the field. Legal practitioners in the field must be methodical and willing to consult medical experts with a range of expertise, as each claim is highly complex and can often involve highly technical medical questions rather than questions of law. |
What legislation is considered in this episode? | Civil Liability Act 2002 (NSW) |
What cases are considered in this episode? | Wallace v Kam [2013] HCA 19
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What are the main points? |
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What are the practical takeaways? |
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Show notes | NSW Australian Medical Association 2021 Hospital Health Check key findings report Queensland Australian Medical Association Hospital Health Check key findings report |
David Turner:
1:00 | Hello and welcome to Hearsay, a podcast about Australian laws and lawyers for the Australian legal profession, my name is David Turner. As always, this podcast is proudly supported by Assured Legal Solutions, a boutique commercial law firm making complex simple. When we go under the knife for a medical procedure, we put our complete trust in our doctors and the hospitals that they work in. We surrender ourselves completely to the care and expertise of another person. So, when something goes wrong in a hospital and a person is injured as a result, the resulting negligence proceedings put the quality of that care and the extent of that expertise directly in issue. Joining me today in the Hearsay studio to talk about medical negligence proceedings is Clare Eves, the national practise leader for medical law at Shine Lawyers. Clare thanks so much for joining me today on Hearsay. |
Clare Eves: | Hi David, thank you for having me. |
DT: | Now Clare, tell me a bit about your practise at Shine. What kind of work do you do? What comprises medical law and how long has your team been doing it? |
CE:
2:00 | I run the medical negligence team at Shine, so essentially everybody in my team only practise within medical negligence litigation. I’ve been running the team for about 6 years now and I’ve got a really exceptional team of really talented people. A lot of them did general injury work before they did medical negligence and then they’ve gravitated to medical negligence as a bit of a subspecialty because they’ve got either a special interest in the medicine of some additional or different qualifications. The types of clients or people. What we get are generally people who’ve been to a medical practitioner and someone’s done something or failed to do something and that was below a standard that was expected in the circumstances and that’s resulted in some kind of damage or harm. So at Shine we only represent plaintiffs in plaintiff litigation, so we don’t do anything on behalf of the hospitals. |
DT: | Now, medical negligence is one of those areas of the law that’s often depicted in popular culture and even when we talk about real stories from the area, they’re often quite sensational stories that you hear shared amongst non medical negligence practitioners, I suppose. People probably think of really dramatic examples like the Doctor Death Podcast or a story where someone gets the wrong leg amputated, or something like that. In reality, what sorts of issues tend to come across your desk in your practise? |
CE: 3:00
4:00
5:00 | At many social events I get asked this question and that is generally the assumption and in Queensland we’ve got the cases of Jayant Patel, which was our very own Doctor Death in North Queensland, but the reality of medical negligence is it’s a lot more involved than that. It’s a lot more mundane and quite often really heartbreaking, but very rarely sensational. Some of the worst cases that I’ve seen that have had really tragic outcomes have really been through simple administration errors or the practitioner just not diligently checking things. Could even be something as easy as not checking a blood test before somebody is discharged from a hospital and that can go on and have a catastrophic impact and it impacts obviously not just that individual but their families, but also on the doctor as well. Most doctors, I find, really do care about their patients. I’ve got a lot of close friends who are doctors and specialists and they face a lot of problems and issues within the medical industry. There’s a lot of things around training and workplace culture, supervision, fatigue, overwork. All these things that, as a patient of a public hospital, that we don’t necessarily really think about. TIP: In Episode of Hearsay immediately before this one, episode 53, we explored owning and resolving mistakes in the context of legal practise. That episode touched upon a decision called Olayemi, which was a VCAT decision concerning a mistake followed by dishonesty in the course of legal practice. Now, in part, the legal practitioner’s mistake and subsequent dishonesty were a result of systemic issues with his workplace, like extreme pressure and failure of supervision. These systemic pressures are similar to those also reported by medical practitioners across the country. In NSW in 2021, 38% of workers surveyed by the NSW arm of the Australian Medical Association reported making a fatigue-induced error. That’s a high percentage. In Clare’s home state of Queensland in 2021, 51% of medical staff reported that they were concerned about making a clinical error due to fatigue from long working hours. These high rates of fatigue are likely related to 60% of medical staff working more than 5 hours per week of un-rostered overtime. |
DT: | I suppose we go to, in those more sensational examples, personal failings, or really dramatic mistakes that a person makes on their own or makes because of some inherent quality they have but in reality, there’s kind of systemic issues that cause perfectly competent practitioners, probably to make mistakes. |
CE:
6:00 | Sometimes we can see an error of judgment, but even underpinning that there’s always things behind that like we’ve just touched on in terms of training or supervision or fatigue, and generally medical law litigation is not really focused on that spider web of problems or issues, or systemic issues. It tends to look at what acts are at the pointy end of the process. So, what decisions were made that is the result of all of those things combined and what was the thing that should have been done or was done that has actually resulted in harm or damage? So, we don’t tend to analyse a lot of the back story, but knowing the health service and knowing people who work within the health industry, it really is a multifactorial process when a decision is made that is the wrong one. It tends to be just not one person making that decision. |
DT: | You’re often aware of the broader circumstances that might contribute to a mistake, but in the end, the fact that determines liability is a little earlier in the causal chain. |
CE: | Liability is essentially the fact the mistake happened not so much around the why the mistake happened. |
DT: 7:00 | Gotcha. Now, you referred to this earlier when we were talking about the scope of your practise and that you do plaintiff work and not work for the hospitals but in medical negligence claims you have two potential tortfeasors here don’t you? You have the treating doctor and then you have the hospital at which the patient receives care and that hospital may or may not employ that doctor. How’s liability apportioned or attributed between those two parties? |
CE:
8:00 | We have some really interesting principles that we work on in injury based law and that’s joint and several liability. So, where you’ve got two parties that are responsible if they’re both contributed to the outcome, then they can independently be held liable for the whole amount of a plaintiff’s damages. So, if you bring a claim on behalf of, say, you’re pursuing a hospital and you’re also pursuing the surgeon involved because he may be privately insured and not employed by the hospital, and you run those cases simultaneously, once you get to the court phase, you may be successful against one and not the other and if you’re successful against one but not the other, you can still recover the whole amount of compensation. But if you are successful against both, then that’s a bit more of a tricky exercise for the courts to work out what is that apportionment of responsibility by way of a percentage, and then inevitably, the parties have to pay the damages by way of that percentage contribution. |
DT: | And what do the courts look at in terms of assessing proportionate liability where a plaintiff is successful against both the doctor and the hospital? |
CE:
9:00 | The courts will essentially look to what contribution they made to the overall damage and the overall outcome. So, for example, you might have somebody who has undergone a surgical procedure and there has been a complication in that procedure. They remain in hospital as an inpatient and during that time they are deteriorating. They may be reviewed by their treating surgeon, which is likely on a private basis, if it’s a private hospital, but they’re also being seen by the medical staff as well, and the nursing staff employed by the hospital. So, in what proportion each party has contributed to it. In those circumstances, the lion share would probably be held by the specialist but the nurses cannot absolve themselves of responsibility altogether. They’re not just passive bystanders in the process, they’ve still got an obligation to ensure this person is investigated, managed, treated appropriately. So, there may be a smaller contribution on the hospital. Some instances where it can be 50/50 but it’s really dependent on this specific circumstances as to how much involvement has caused the ultimate harm. |
DT: | And there’s no cap or floor on proportionate liabilities there either? Proportionate liability between tortfeasors can be 100% or it can be 0. |
CE: 10:00 | There’s huge scope to work in, in between and what happens with medical negligence cases is very rarely do they actually go to trial. So, the majority of the time it is negotiating a settlement and if you’ve got two parties in the claim, two people who are at fault who have contributed to the outcome, you’ve got to pursue the claim against both, but sometimes that can be one of your biggest challenges, is actually getting them together to agree that contribution or that proportion. |
DT: | Absolutely, it might be relatively uncontroversial what your economic loss is, or what the general damages calculation for your client might be, but the real bone of contention might be between the defendants, not between the plaintiff and the defendant. That must be frustrating. As a plaintiff lawyer, sometimes the decision to settle or the last element of your settlement arrangement is really out of your hands. It’s sitting with the other defendants. How do you navigate that as the plaintiff’s representative? |
CE: 11:00 | It is a difficult situation and it can be very frustrating because medical negligence is such a complex and difficult area and you’ve got to get all your stars to align and you’ve got to have that breach of care which has caused the outcome, and it can be like a whole jigsaw to put together. So, if you’ve got 2 tortfeasors in the claim and sometimes they both may agree they’ve acted below a standard and they’ve caused damage, they just can’t agree on that apportionment then that is incredibly frustrating because you’ve done all the hard work along the way. All you can really do in those circumstances is really encourage the parties to get together and have a conversation before the mediation or before the settlement attempt and engage a really good mediator in those circumstances to try and keep things moving along and try and reach that agreement. |
DT: 12:00 | Is there a general consensus amongst medical negligence lawyers about the ordinary apportionment of liability between different tortfeasors or perhaps the ordinary range of awards that might be made? I ask because it always amazes me, speaking to family lawyers, what a narrow range of outcomes there are that are supported on the cases. There’s a really strong consensus view on the kind of range of reasonable outcomes that the Court is likely to support in a property settlement, and it’s always been so far from my own experience as a commercial lawyer and a commercial litigator where there’s really no consensus on what an award should be in any case. Is there a similar dynamic in medical negligence? |
CE:
13:00
14:00 | It really is one of those areas of litigation which is just so case by case specific. There is just not a ‘one size fits all’. You can use your legal experience and your medical experience to help you navigate these claims, but you might have two birth injury claims and the factual scenario as to how a child obtained a hypoxic birth injury could be completely different. One could be a really high risk pregnancy, one could be a low risk pregnancy, but it was all down to the labor at the end. So, there’s never a ‘one size fits’, but essentially in medical negligence claims you do have to be alive to the fact that there are complex issues at play. There is a range of things that need to be decided by a court. They’re often defended, or there’s often evidence which is contradictory. So, as a plaintiff, if you want to settle the claim, there is always a degree of compromise and how large that degree of compromise is really depends on how concerned you are about the issues not going your way, and when you’ve got two defendants who you’re running the claim against, there can be a range of percentage contributions that could be found, but I think generally it’s going to be somewhere in the ambit of 80 to 20% splits or a 50/50 and if it’s so narrow that it falls outside and 80/20 range, then you probably haven’t got a really good case causally against that other defendant and they might be inclined to offer nothing, because there may be a high probability if the evidence against them around that causal connection isn’t very strong, they might be fairly confident that you’re going to lose the claim against them in its entirety, so they might not be willing to make anything in terms of a contribution. Then it comes back on the other tortfeasor and you come back to those principles of joint and several liability, even if they think another party is partially responsible, if you’ve got a very thin claim against them, then they’re up for the whole amount of the compensation anyway. So, there may be instances where you’ve got 2 defendants, one doesn’t make an offer and the other one just has to assume the whole amount of the claim to try and get it resolved. |
DT: 15:00 | You mentioned earlier that one of the elements you have to satisfy in proving the plaintiff case is breach of duty of care, and I think a lot of our listeners will remember from their undergraduate degrees for general negligence elements; the existence of a duty of care, breach of it, causality. Now, I imagine in medical negligence it’s fairly easy to establish the existence of that duty of care, that would be fairly uncontroversial between a doctor and their patient, but whether it’s been breached really depends on clinical expertise and what clinical best practise is at the time the injury occurs. How do you go about investigating and proving that something is or isn’t clinical best practise? |
CE:
16:00
17:00 | As a lawyer, that is obviously a legal test, but it does become a lot more challenging because there’s so many medical issues at play and some of the issues are in fact a medical question in what you have to apply legal principle to. So, when you’re looking at that duty of care, peace, what we tend to do is get all of your medical records in. Once you consider, there’s probably enough to investigate a claim, try and piece it together, figure out what’s happened and why, and then do some research because it may very well be that it was just a very hard situation to manage, it was a complex surgery or an inherent risk that has eventuated or just a really complex medical condition that was hard to get under control. So, once you’ve got your records in and you’ve got a good understanding of the sequence of events, what the outcome was, you then can start to work backwards a little bit, not with the benefit of hindsight, but knowing what’s probably caused the injury. What were those steps that led to that situation? What decisions were made? Or were not made and was that to a requisite standard? As lawyers, we don’t really know the answer to that question, so we have to do a lot of research of our own. We look at clinical pathways guidelines protocols. Sometimes there can be a level of clinical discretion to deviate from pathways, so it’s looking at all of the information that we’ve got and do we think that the situation was one that organically flowed, or were some decisions made that probably fell below the standard expected at the time? If we’re confident that it may be in that latter category, that it is below a requisite standard, then we have to brief a medical expert and the expert opinion is really crucial in medical law claims. So, they really dictate the standard of care and whether or not that has been breached in the circumstances. |
DT: | And I suppose if that question is an issue, that is to say, if it’s denied by the defendant that the treating doctor’s conduct didn’t fall below that standard of competent professional practise, what kind of expert are you calling? Because I imagine the opinion of one doctor over the opinion of another isn’t necessarily going to be persuasive to the Court. So, what expert evidence are you calling to establish that this is not only the opinion of one doctor that’s been called to give evidence, but is the opinion of the profession? |
CE: 18:00
19:00
20:00 | Well, that’s a really difficult situation in certain states as well, David, because in Queensland, under our expert evidence rules and our practise directions, we have to limit the amount of experts that we are calling and we have to have a single joint expert on the issue. So, we can’t call five obstetricians or five neurologists, we can only really call one. The other states, you have a little bit more discretion to call more than one expert of the same specialty, but it amazes me in my time in working within medical negligence, how often you do actually get evidence from the other side trying to defend a claim and you get a difference in that expert opinion. So, you may have a case theory that you’ve worked on, you’ve worked through all the steps with your expert and you’re really happy that it’s a report that’s got a strong foundation. It’s very credible and very compelling and, of course, the story’s only as good until the other side of the story is told and then you may get a defendant report, and it may be really contradictory to your expert evidence and it may in fact say that that particular doctor or medical provider acted in a way that was in accordance with peer professional opinion as being competent professional practise. That’s the Queensland test essentially, and if it’s accepted by a number of respected practitioners as being competent professional practise, then you can actually defend the claim even if the plaintiff has established their case. So, it does lead to a very difficult situation because most medical negligence claims, you start off with a very strong foundation and then you will get a report from one of the other parties, at the least, defending the situation. So, it’s really a matter of actually drilling down into that opinion and why is that opinion different? |
DT: | Can you tell me about an example of a case that you’ve worked on that involved one of those questions of competent professional practise? |
CE:
21:00
22:00
23:00 | I recently resolved a case that I’ve been working on for a number of years and it involved a young girl who was born very prematurely and was in hospital for a number of months and, while she was in hospital, she developed bacterial meningitis and she did have symptoms that wasn’t fully explained by any other medical condition. There wasn’t a lot of investigations that were done into those symptoms, and by the time she was diagnosed with bacterial meningitis, it was very well advanced. She was in a life threatening situation and she actually suffered a really significant brain injury. We got all of our evidence together and the case was looking really strong and our experts essentially said there was a lot of key points where additional investigations should have taken place. Had they been done, it would have revealed the meningitis, it would have been treated, managed, and the brain injury would have been avoided. We then got a report from the defendant and it was a neonatologist, the same specialty as we’d instructed in the case, we had some infectious disease physicians and pediatric neurologists and a cast of thousands, as you sometimes do in these claims. But their expert essentially said that her symptoms were quite well explained by the fact that she was premature and some of the issues that she was having this instability in these desaturations over oxygen levels were all because of the prematurity and underlying conditions associated with that. So, it wasn’t unreasonable for the doctors involved to not do any further investigations. What was really interesting about that particular opinion is once you really started to drill down into that, the questions were all framed quite generically around these symptoms that could have been explained by prematurity and the doctor made a conclusion at the end of that the care was in accordance with the reasonable standard for those reasons, but he made some comments in the report that within the last week to 10 days before the diagnosis of bacterial meningitis, she probably did have meningitis that was partially treated as she’d had some antibiotics. So it’s a really classic example, I think of you’ve got a different opinion, but when you really drill down into it, has that expert even really addressed the actual issues in the case, and has somebody been very creative with the way that they frame the questions and cherry picked certain aspects of the case to get the answer that they want? And we resolved that case at a mediation but I strongly suspect if you’d have run to trial and you’d have asked the expert in the witness box about that last week, I think he would have been very critical around the care in that last week before the diagnosis. |
DT: | There’s so many issues around expert evidence, generally, really selecting the right expert from the right discipline, asking the right questions, briefing them with the right material. And I imagine that’s especially so in medical negligence and that kind of touches on the next question I wanted to ask you which was about causation. Now, I imagine it’s quite difficult to establish causation that the breach of duty of care caused the damage to the plaintiff in circumstances where the cause of that harm might actually be a complex scientific question and might actually not even be settled in the science. How does the Court approach those sorts of scientific questions? Of course, there must be expert evidence called on that question of causation. But what options does the Court have for approaching a question of causation where there’s actually not a scientific conclusion that’s well settled or available yet? |
CE: 24:00
25:00 | I think the Court has a very difficult task in some of these causative issues, and quite often when we look at a breach of care, it can be very challenging, but some cases are just very straightforward and very easy. If you take somebody who presents to a GP with crushing chest pain, that’s come on suddenly or somebody heavily pregnant presents to the GP and they haven’t felt the baby move for a couple of hours. In both of those instances, doing nothing is probably not a reasonable response of a GP. But who’s to say had they both gone to hospital, they hadn’t already had an enormous heart attack, and the second example, the baby, may have already passed away in utero. So, you do have to establish that because of those acts or those failings, it’s caused or contributed to the ultimate outcome for which you want to claim. That can be challenging in any event, but where the science isn’t actually settled, or there’s no fair medical explanation linking the event to the outcome then that makes it even more complicated. There are provisions under the legislation where the Court can still award somebody damages and determine that that causative outcome is linked to the act or the failing to act in circumstances where it’s an exceptional case and some of the legislation, words that a little bit differently as an appropriate case, but essentially we look at it as being the exceptional case rule and that maybe, if on a strict interpretation of, but for the negligence the harm wouldn’t have occurred if you can’t really establish that through the medicine or through the science, then the Court can look at well, is a connection possible? And if a connection is possible and there’s a contemporaneous account of symptoms after the event, then it is open to the Court to find that it’s probable. |
DT: 26:00 | In addition to that causative test, the but for test, you also have to persuade the Court that it’s appropriate for the scope of liability to extend to the harm suffered by the plaintiff. Can you tell us a little bit about the source of situations where that test comes up and is applied? When will that be satisfied and when won’t it be? |
CE:
27:00
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30:00 | The causative aspect around that, but for tests in the legislation, is a two limbed test. So we’ve got but for the breach the harm wouldn’t have occurred, and sometimes that can create a bit of an anomaly. It seems like a really straightforward, easy test to apply, but you may get a situation where that actually results in a strict interpretation of it. You’ve satisfied that test but it’s not really fair or appropriate to pass liability to the medical practitioner because their acts or omissions haven’t actually caused the outcome. So, there’s a couple of situations where that has occurred in the courts, there was a case of Wallace v Kam, which was a failure to warn case around spinal surgery and the Court really did a quite easy example in terms of this principle and what they said is if you’ve got somebody who’s a mountaineer and he goes to see his orthopedic surgeon and asks if his knee is fit to do a climb and the surgeon tells him ‘yes, your knee is fit and stable to do a climb’, but it’s actually not and that information that was given is not correct and the mountaineer goes on to climb and there’s a huge avalanche and is injured. Does the liability for the injury in that Avalanche pass back to the medical provider? Because on a strict interpretation of the but for test, if he had advised the mountaineer ‘your knee is not stable enough, don’t climb’, he probably wouldn’t have made the climb and he would have avoided the injury, but it’s not appropriate in those circumstances to pass liability onto the provider. So, there’s a number of niche scenarios in medicine where that can arise. TIP: That case Clare just mentioned is Wallace v Kam, a 2013 decision of the High Court of Australia. The MNE is [2013] HCA 19 for those playing at home Mr Wallace sought medical treatment for a condition that impacted his spine. A risk of the corrective surgery was a condition known as bilateral femoral neurapraxia, a type of temporary local damage to the nerves of the thigh. Mr Wallace wasn;t informed of this risk by Dr Kam, and this risk eventuated after the surgery. Now, at first instance, Harrison J of the Supreme Court of NSW dismissed Mr Wallace’s claim, finding that while Dr Kam negligently failed to warn him of the risk of neurapraxia, he would have undergone the surgery even if he had been warned of that risk. Now, Harrison J declined to make a finding on an argument advanced by Mr Wallace that Dr Kam was liable for his neurapraxia because of failure to also warn him of a 5% risk of paralysis from the surgery – a risk which did not eventuate – on the basis that the legal cause of his neurapraxia could never be the failure to warn of some other risk which didn’t actually materialise. Now, on appeal to the Court of Appeal and then the High Court, Mr Wallace sought to argue that Justice Harrison erred in holding the legal cause of his neurapraxia could not be the failure to warn of the risk of paralysis. The High Court held that the distinct nature of the two risks – neurapraxia on the one hand, paralysis on the other – and Mr Wallace’s willingness to accept the risk of neurapraxia, combined to support Justice Harrison’s finding at first instance that Dr Kam’s failure to warn of the paralysis couldn’t be causative of the neurapraxia from a legal standpoint. There was a case a few years ago where somebody had had a brain aneurysm which was overlooked on a scan, and it took an additional three years for it to be detected, and when it was operated on, it spontaneously ruptured and that person brought a claim against the neurosurgeon for not detecting the scan three years ago and operating. And the Court applied a similar test in this situation and work through the same process and said if they’ve had surgery three years ago, or maybe on any other day with any other surgeon, there’s a good chance the aneurysm may not have ruptured, but did the practitioner do anything that over those three years has made the procedure anymore risky anymore, dangerous or caused the rupture? And the answer to that was no. It hadn’t changed in shape, size, or character. The surgery was still the same as risky, in fact, it was probably less risky because there’d been advances in medical science around coiling, over clipping aneurysms, and in that particular circumstance it was just one of those inherent risks that eventuated and that delay had nothing to do with the outcome, but on a strict application of but for that would have been satisfied. |
DT: 31:00 | It sounds like there’s just so many hurdles at which a claim could fall over. You’ve got establishing the duty, which perhaps isn’t the tallest hurdle, but then you’ve got establishing breach and the complex questions of peer opinion and competent professional practise there, you’ve got the causation questions which might be unsettled in the science, you’ve got the appropriate for the scope of liability to extend to that harm, which is another side of the causation coin there. What are your tips for our listeners on how they can understand as much as possible about a claim like this before they choose to commence or defend it? What do you do to gather as much of this information as possible and satisfy as many of these tests as possible before you commence proceedings? |
CE:
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36:00 | I often joke with my team, David, that if you’ve got a case where you’ve got a duty, it’s been breached, its caused an outcome and there’s enough value in it to be worthwhile for the client to proceed, it’s probably out of time because you just don’t get the whole package. There’s always something in a medical law claim which makes it an absolute minefield and notwithstanding, if you’ve got a neurosurgical claim, you maybe have to have a two or three hour discussion with a neurosurgeon holding your own navigating through the scans and the issues to try and figure out if the standard of care has been breached or not, or what damage has been caused. So, it’s really challenging, and I think that’s what makes it really interesting. You never stop learning and you never stop growing in terms of your legal and your medical knowledge. Things to think about, firstly, is what are the issues in the case and what evidence are you going to need from the expert to actually establish the case? And when you’re looking at these claims, you always want to look at what is the toughest issue to tackle first. So if we go back to those two examples around somebody presenting to a GP with crushing chest pain or a baby in utero that they haven’t felt moved for a couple of hours. It’s probably not worth going to a GP expert first because the GP expert will probably say he didn’t refer them to the hospital or give them any real advice or investigation, if you sent them home. It’s probably quite obvious that you will get somebody to support that wasn’t to a reasonable standard in the circumstance. So, really focus on each case. What is the toughest issue? Sometimes you deal with it completely backwards and you will deal with causation first, so you may want to go to a cardiologist and find out what type of cardiac damage was caused by a delay in treatment. Sometimes, if it’s a threshold issue on damages, you might even want to look at quantum first. So, I think look at the toughest issue and what’s going to be your hardest hurdle, and don’t be too tempted to plow in with both feet because they are really difficult claims, you do have that temptation if you speak to an expert and they’re supportive, you get a bit excited and get started, but sometimes you may need to talk to two or three different people, particularly if it is a complex claim involving a birth injury or a spinal abscess, resulting in paraplegia, you may need a number of experts to make sure the case theory is all coming together and flowing, because once you start the case and you get that evidence out there, if you then start to serve evidence that’s contradictory to your own case, and your theory is changing and evolving over time, it starts to become very, very problematic. So make sure you’ve got a really good firm foundation that you can start with from the beginning. My next tip would be to do your own research, because clients always tell you ‘I was told by the hospital, this should never have happened’ or I was told by my surgeon ‘you only need this surgery because the first surgery went wrong’ and they may very well have been told that but somebody being critical around another medical provider is a very very different test to that medical provider has acted below the standard of care of a medical provider in that situation at the time. You’re essentially saying they didn’t exercise the requisite skill and judgment needed of a doctor at that time, and that’s a pretty big call and a pretty big threshold to get over. Treating doctors, we don’t use them as primary witnesses, so even if a client has told you all of this information about how great they’ve been told, the cases by a friend who’s a nurse or their own GP, you still need to be thinking about what are the standards here? What are the protocols? What’s the guidance? What’s the direction for the doctors? Where does the discretion kick in? And build some really good relationships. Pick up the phone to a colleague council, get a few medical experts who you work with regularly and pick the phone up and have a quick chat before you commit to taking a case on if you’re just not sure. |
DT: | It sounds like there’s a lot of opportunities where you might get some false hope about the prospects of success in a claim, and it sounds like it’s important to not get drawn in by those to maintain a healthily pessimistic view of your prospects at each stage. |
CE:
37:00 | It’s really important in medical law claims to have that solid foundation. So, if you’re speaking to an expert and you’ve posed 10 questions and eight of those are positive, but the last two just destroy all claim altogether, you don’t want to be thinking ‘OK, I’m going to get a report from someone else and just ask those eight and run with the claim’, because if it doesn’t fuse together it is going to unravel at some point. That is just inevitable. It’s going to be pressure tested by your opponent and it’s going to be a case you can’t win, and if you can’t win the case at trial, you’re probably not going to resolve the case, and it’s not one then that is in your best interest, or the client’s best interest to pursue. |
DT: | Absolutely, you’ve always got to prepare the case at least in part from your opponents perspective and prepare it the way they would so you can be aware of those last two conclusions that might be, you know, really determinative and not necessarily in your favor to the case. We’ve mentioned expert evidence a couple of times and I want to come back to that topic. I imagine expert evidence in this area is obviously ubiquitous, and there’s even some jurisdictions where you’re required to serve a medical report together with the originating process for the claim. What are some things you look out for when selecting and instructing a medical expert witness? |
CE:
38:00
39:00 | In terms of selecting an expert medical witness, the things that I look for are what’s their specialised knowledge, training and experience and what’s their level of clinical experience in this particular area? So as we know, experts give evidence to the Court by way of their opinion, and that’s an exception to the opinion rule. But it’s got to have that value that it’s something that the judge could not figure out themselves, and it’s gotta be within their area of specialized experience and knowledge. So if you’ve got a orthopedic surgeon who specialises in upper limb surgery and your case relates to lower limb, you really need to think about is that really going to be the most appropriate expert because the first question, they’re probably going to be asked in the witness box is how many of these surgeries have you done in the last 5 to 10 years? And if the answer to that is ‘none, but I’ve got a lot of clinical experience and I’ve got the training and education to comment on it’, it’s not going to add very much value and be probative. TIP: Now, as Clare says, when you’re looking for a suitable expert witness, you first have to ask yourself what kind of expert witness is required. Obviously, briefing a forensic accountant in a medical negligence case would be a huge mistake, but it might not be as clear where the delineation of someone’s expertise begins and ends on a particular issue in, say, neurosurgery. Now, you can find relevant experts in multiple ways – and it can be as easy as doing a Google search but you can also search university databases and trawl through reported cases that were decided on the basis of expert evidence. Third party expert provider services can also be used to connect lawyers with experts. If you identify an expert that ends up having a conflict of interest or if they’re unavailable, they may be able to recommend other experts in their field who are available. In an earlier episode of Hearsay, we sat down with Matthew Hudson from SV Partners to discuss insights and practical tips for selecting, briefing and preparing expert reports – including getting into the weeds of briefing letters and preparing for cross examination. Listen to that one after this if you want. |
DT: 40:00 | Another category of evidence, and often it’s called as expert evidence because it’s of course not lay evidence is statistical evidence, evidence from studies conducted on the condition or treatment that is at issue in the case and on the one hand, these sorts of studies can be quite persuasive, their conclusions drawn from a study of thousands of patients or tens of thousands of patients. But there’s always this difficulty in applying the conclusions from the general to the specific isn’t there? How do you find statistical evidence in your cases? Is it useful? Is it not? |
CE:
41:00
42:00
43:00
44:00 | It really depends on the manner in which it’s used. So, when you look at the expert evidence piece, a lot of the time, the expert might be relying the foundation for their opinion on facts or assumptions, and you have to independently prove those. Sometimes they may be relying on statistical evidence or statistical data, and that is really helpful when you’re looking at causation. If you’re looking at a pool of people who might have cryptococcal meningitis who were all treated early with antifungals and corticosteroids, and 80% of those made a positive improvement then that is really helpful evidence in the case. It’s not so helpful when you’re looking at that breach of care, and I sometimes see that in expert reports that someone might be relying on that report from Germany from the 1980s. That’s not the reasonable standard of care of an everyday GP in Australia. It’s probably limited to a niche number of academics who might know about this particular paper but when you’re looking at the causative aspect, data and statistical evidence can be extremely helpful, particularly where it is more of an exceptional case, but you still have to be very cautious in using it and how you use it, because if it is looking at the norm and your client doesn’t fit into the norm, how relevant really is it to your particular case? I had a case recently that there was a bit of an argument around life expectancy and I received a defendant report saying that my client is going to have a reduced life expectancy by about 25 years and there was working through all the different issues in terms of his lifestyle and different health complaints and the first thing on there was that it was a heavy smoker and when I looked at all of the different articles that they had relied upon and the different studies to look at drug use, head, injuries, smoking, obesity, none of these reference materials were actually attached to the report. So, I asked for all the reference material and the first one I got was around smokers and it related to a study that was done in smokers over 60 with emphysema and my client was 38 with no diagnosis of emphysema. So, straight away, you think he’s completely outside this cohort of people in the study, and this study is just not relevant to him at all. So, it’s not relevant to the expert to be using that to make any assumption or any basis for his opinion, and that’s where it can get a little bit dangerous because you have to still look at the data. Is the plaintiff within the norm or the standard or the cohort? And even if they are, look at the clinical picture as well. If you’re looking at something like did they respond well to treatment? And yes, they would have done because 80% of the population in this study responded well, what about your particular case? And if it is a delay and the client was very advanced, what happened when they got onto treatment? Was the non responsive to treatment? Which might indicate even if it was given earlier, they might not have had a positive outcome. So, you still need to use a lot of clinical discretion and actually make the studies work for you as a bit of a guide, but it’s very rare that you would use them as the totality of your evidence and if you are using them to support an opinion that is a little bit misleading then there’s a real risk that you could be found to be misleading the court, because as an expert you are there to assist the trier of fact in reaching a determination. So if your opinion is distorted because it’s based on evidence which doesn’t really fit the factual scenario then are you actually misleading the Court with that evidence? |
DT: | I suppose that the issue is statistical evidence is that it can always tell you how likely something is to have occurred, but it could never tell you whether it did, and so you always have to be very wary of relying on a statistical conclusion to prove the occurrence or not of something even on the balance of probabilities in a particular case. |
CE: 45:00 | Particularly when you’re looking at those causative issues or issues around life expectancy and there’s often a lot of statistical data used in cerebral palsy cases, and sometimes that doesn’t take into account the level of quality healthcare that they are getting, whether or not they’re in good health or they’re having lots of seizures, what their home situation is, and if they’re cared for very well at home and they’ve got all the medical needs met at home. Then their life expectancy might far outweigh some of the cohort within those studies. So, it is quite dangerous to rely on it as being a determinative factor in what that outcome is going to be. |
DT:
46:00 | Now, we’ve mentioned life expectancy a couple of times and that is one area where statistical evidence is very useful in a prediction of the future, not a determination about the past, because once liability is established in a case, there’s a lot of complex questions to answer on quantum as well, isn’t there, and both judgments and settlements, as I understand it, are made on a once and for all basis, so there’s an amount paid by the defendants and that’s it. That’s the end. How do you and if you have to, if you’re unable to settle the matter, how does the Court arrive at that magic once and for all figure? |
CE:
47:00
48:00 | To get that. $1,000,000 figure as you may want to call it, it really is fully understanding the impact that it’s had on your client. As you said, David, it is settled on a once and for all basis and that makes it very challenging because inevitably, it’s going to be wrong. You are going to have some people who end up making an improvement after the claim’s resolved. You may have some individuals who decline or have a secondary event that’s related and you can’t reopen the claim and claim for anymore and, coming back to that life expectancy piece, if you have a catastrophically injured person with a reduced life expectancy and they exceed that, then the money is going to run out. When we look at things like the NDIA and the huge inflation of costs around allied health services, I look at judgments that were made 15-20 years ago, and you can guarantee that that money ran out a long time ago, even though it’s supposed to last for the remainder of somebody’s life. So, it is a really difficult exercise that you’re never going to get right, but you’ve just got to do the best you can on the evidence, and it really is crucial to just fully understand how that individual is impacted, how different their life is, do that sliding doors analogy of before and after, but what were their aspirations for the future as well? And a lot of it is getting some really good expert evidence, but there’s so much more to it than that. You really do need to understand that person’s situation and where they were going and speak to their friends, speak to family, speak to coworkers, employers, get their employment files. Is there a comparator? Were they at university with somebody and have their now progressed in five different roles since that time? Who were you going to use as a comparator to establish well, he would have been at this level and continue to advance? So it is something that I feel as lawyers, particularly in medical law, because it is so difficult when you’ve done the liability piece that you’re far from finished. There is so much work to still do in that quantum space to make sure you really have tailored it to that person’s situation and we’ve seen medical law claims run sometimes on that quantum point, sometimes just around the care piece or around the economic loss piece because we are looking at the loss for the rest of someone’s existence, and if that’s a child or an infant who’s born, you might be looking at the next 86 years. So, it ultimately is a really large figure that you’re working with and that makes it all the more challenging because you don’t have a baseline to start with. |
DT: 49:00 | And when you’re dealing with a child or young person as you said, so much of their future is potential, right? So much of it’s about what they might have achieved in terms of their earning capacity, and I imagine that might be very difficult to sort of answer that hypothetical where you have someone who’s done well in school but hasn’t achieved a tertiary education and it’s just a bit of a crystal ball gazing exercise, I suppose, to identify what their earning capacity might have been over the next, as you said, 60 years of their life. |
CE:
50:00 | But it’s challenging and I think working with the family as to what their aspirations were and what support they were intending to provide because there is a real temptation to look at well, what do mum, dad and auntie and uncle do? And if you did that in my situation, I’m the only person in my family to ever go to university and move out of my hometown, and I’ve moved to the other side of the world. So if you applied that in my case, it would have given me very little scope and potential to end up in the career and life that I actually have, and I know a lot of barristers who have come from very working class or migrant families who there are barrister brothers and neurosurgeon and mum and dad have always worked in factories. So, it is coming back to that, there isn’t a ‘one size fits all’ and you can’t just apply general principles. You really do have to dig a little deeper in every case. |
DT: | You mentioned before that there’s the economic loss piece, of course, and that’s really what we’re talking about when we’re talking about predicting the outcome of someone’s life over the rest of their expected life expectancy but there’s also general damages as well. Can you tell us a little bit about what general damages are meant to compensate for and how that award is arrived at? |
CE: 51:00
52:00 | The general damages component, quite ironically in a lot of medical law claims, can be the smallest amount of the settlement and when you look at a settlement, generally it is to put the person back in the position they should have been had the tort not occurred, which is virtually impossible when you’ve got somebody who’s catastrophically injured, but the general damages component is where you have that pain and suffering allowance. So, you recover compensation for the fact that you’ve been injured and that loss of amenities and that impact that it’s had on day-to-day life, hobbies, social relationships. You would think that that would be one of the largest parts of any settlement, because that’s having the biggest impact personally on an individual that when we had our tort reforms in the early 2000s, every state implemented some kind of sliding scale or cap or restriction on what you can claim for that. So, it tends to be quite a conservative amount that is quite dictated by looking at a scale or looking at a regulation and fitting it to a box. There is still a little bit of discretion around what symptoms you’re having and what impact that’s having on your ability to do certain things, but it isn’t as open as maybe the economic loss claims or a caring assistance type claim. |
DT: | What’s the maximum amount of general damages someone can receive? |
CE:
53:00 | The maximum amount that an individual could receive for that pain and suffering component really does vary between each state. Some have a threshold test to even be eligible to claim compensation. Some can compensate you for any injury, but then the severity of it is on a sliding scale. At the moment in Queensland, the most that you could recover for compensation in a medical law claim for that pain and suffering amount is just over $400,000 and that is somebody who is at that absolute highest scale. So, the guidance around that would be somebody who is a quadriplegic with some brain impairment but has full insight into what’s happening, for example. So, levels of insight either increase or reduce your award of damages. If you’ve got low insight into your injuries and your disabilities, then your compensation starts to reduce as well. |
DT:
54:00 | Oh God. TIP: In NSW, section 16 of the Civil Liability Act 2002 specifies that the maximum damages for non-economic loss, or the pain and suffering component as Clare puts it, also called general damages, is $350,000. Like Clare says, damages of this magnitude will only be awarded in the most extreme cases. There’s no prescribed ‘most extreme case’, however, as is the case in Queensland, it has been suggested that someone who is quadriplegic with full brain function is an appropriate example of the sort of case where the maximum amount of general damages would be awarded. What an interesting question that is as to whether that’s an appropriate award that that would increase or reduce the award of damages, and I suppose if you have less insight into your condition, you might have less appreciation of the suffering you’re experiencing, but on the other hand, there’s a suffering in that in and of itself, isn’t there? |
CE:
55:00 | The awards for general damages in all states are insufficient. Most of my clients have been catastrophically injured, but, overseeing the team nationally, I see all of the enquiries that come in and it’s at all ends of the spectrum. It could be from somebody who had an amputation to somebody who’s got ongoing wrist pain because of a mismanaged fracture. So, we manage all different types of cases and sometimes if you have a client, it may be that you can tell the care has been inexcusably bad. The care may have been absolutely terrible and it’s quite obvious that’s resulted in a bad outcome but if it’s a Queensland based claim, for example, you know, under the regulations, they may not get very much for pain and suffering and if they are of an older demographic, they’re already retired, if they were already in a care home with 24 hour access and support for other reasons, then you’ve got very little to actually claim for. So, when you feed in what the cost of a claim is going to involve, given you have to get expert evidence to support, there’s been a breach of care and it’s caused or significantly contributed to the outcome, that is probably going to outweigh the amount of compensation. It’s a really sad situation when that occurs, when you can’t help somebody because it’s not in their best interest to pursue it when you know that they really have been wronged. |
DT:
56:00 | Clare, to finish our interview, I wanted to ask you about the future of your discipline. Medical practise, like just about every industry, is facing disruption from new technologies. Whether that’s robotic and automated surgery or artificial intelligence and data driven diagnostics. What kind of legal issues do you think those new technologies will present for your practise to deal with in the future? |
CE:
57:00
58:00 | I don’t even know if, as a lawyer, I am imaginative enough to scope this out, David, because we still have such a traditional area of practise. Law is still so very traditional and even with COVID it’s been interesting to see what gains we’ve all made in that technological space which other service providers would be amazed that we were still hand filing things at court and some of the very traditional things that we still do everything in person and there’s still a lot of written word and a lot of pen and paper floating around. But medicine is completely different and it’s constantly evolving and there’s so many interesting things that are actually happening in that medical space, but I think what is really interesting is when you look at where you think they might be in 20 or 30 years, it’s probably going to be algorithms for a lot of things in terms of diagnostics. It may even be that you’ve got scans that are read by computers as opposed to a radiologist and it may be that there’s not much surgery actually being done by hand, it’s all robotics, and when you look at medical schools, they are still training doctors the traditional way of medicine, yet the science has brought all of these new technologies to the forefront, and we can see the future is going to be completely different for medicine. So, where that’s going to leave us from a medical law claim, I imagine there’s going to be a hugely reduced margin for human error, which is going to be absolutely wonderful, but where there is an error, it may even be that it’s more of a product type issue, or it’s more to do with the actual setup programming manufacturer or the product itself then actually that human component. So, as if medical law wasn’t already any more interesting and challenging, and so many things to learn, I think there’s going to be a lot of new things to learn in the future, a lot of litigation, which is completely different to the cases that we’ve seen historically, where everything is done by the eye and the hand and it’s just going to be a very different space in 20 years time. |
DT: | All things for you to look forward to. |
CE: | Absolutely. |
DT: | Clare, thanks so much for joining me on Hearsay. |
CE: | Thank you. |
DT:
59:00 | As always, you’ve been listening to Hearsay the Legal Podcast. I’d like to thank my guest today, Clare Eves from Shine Lawyers, for coming on the show. Now, if you liked this episode and want more health law related content, try my interview with Mary Jerram AM, the former coroner and current member of the Mental Health Review Tribunal, or for something different, try our episode on cost assessment with Mike Dudman from Blackstone Legal Costing. Now, if you’re an Australian legal practitioner, you can claim one Continuing Professional Development point for listening to this episode. Whether an activity entitles you to claim a CPD unit is self assessed, as you well know, but we suggest this episode entitles you to claim a substantive law point. More information on claiming and tracking your points on Hearsay can be found on our website. The end of the CPD year is fast approaching. Now, if you know anyone who needs more points before March 31, tell them to sign up to Hearsay with the coupon code referee2022 for 25% off their subscription price. That’s referee 2022 for 25% off. Hearsay the Legal Podcast is proudly supported by Assured Legal Solutions, a boutique commercial law firm that makes complex simple. You can find all of our episodes as well as summary papers, transcripts, quizzes and more on our website and if you’re a subscriber, we’ll let you know by email whenever we release a new episode. Thanks for listening and I’ll see you again next time.
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