Joelle Matar discusses medical negligence on 2GB – 15 September 2020

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DK – Deborah Knight/JM – Joelle Matar /C1,2,3, etc – Callers 

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Listen to the podcast

Read the transcript below:

DK      Now today on legal matters we are looking at an area of law which can be really upsetting, it can be confusing and it can cause a lot of trauma, it’s the topic of medical negligence and look it comes in a number of forms, surgery that’s gone wrong is often one that comes to mind but there are other areas too with medical negligence and to talk us through this today is Joelle Matar, medical negligence specialist at Turner Freeman Lawyers and effectively it’s free legal advice, so the lines are open for you, 131 873, Joelle is on the line for us now. Thanks for joining us.

JM       Thanks for having me Deb.

DK      Let’s break it down, at its most basic for anyone who isn’t sure, what does medical negligence cover?

JM      A lot of different things, a lot of the things that we tend to see would be things like a delayed diagnosis and treatment of a condition, or a misdiagnosis so they’re the things we come across quite often, you’ve probably seen in the news there was a woman that recently presented to Bowral Hospital with a headache and unfortunately she was sent home with some pain killers when she in fact had an aneurysm, so this is something that we come across quite a fair bit, you have a person that presents to their local emergency department, say in this case they have a headache, a lot of the times they take some bloods, they give them some pain killers and as soon as the headache resolves they think that the symptoms have resolved and therefore the patient is okay, and then they’re told well go home, go see your GP, if you become unwell or you get any worse return, so unfortunately the clinical significance of the symptoms is not appreciated and the underlying cause of those symptoms is not investigated and you tend to miss quite significant diagnoses.

DK      And this can happen in any medical setting can’t it? Anything from a consultation with a GP to a hospital setting to major surgery.

JM      Yes.

DK      What about aged care homes?

JM      Yep, so again, this is something that we get a lot of calls about, a lot of family members who are concerned about their elderly loved ones and how they’re being looked after, be it an infection that’s not picked up on quickly enough, they, you know, the nurses there don’t get the GP to come in and have a look at the patient and unfortunately with the elderly in particular, they tend to deteriorate quite quickly.

DK      Yeah, absolutely.

JM      So an infection being picked up, being treated in a timely fashion is critical, it really is.

DK      So is there a difference then between a genuine mistake, an error or, and then negligence? I mean a genuine, honest mistake is one thing, but if something has been done incorrectly negligently, how do you draw that fine line?

JM      Well I think, look we all make mistakes right, I make mistakes, unfortunately when a doctor makes a mistake it’s someone’s life, but at the end of the day it’s all unintentional Deb, there’s no one out there who has a claim in negligence against them that has done it deliberately. If it’s something that’s deliberate, it’s not a genuine mistake then it’s not negligence anymore, we’re looking at an intentional tort, so that’s quite different.

DK      So it’s a criminal matter rather than…

JM      Well yeah.

DK      …a civil matter.

JM      Yeah it’s quite different, you know you’re getting into the territory of you know assault and trespass of the person and those sorts of things. I mean, you know most of the doctors I’ve sued, it was simply an error, a mistake, something that’s been done inadvertently rather than intentionally.

DK      You might have a question, give us a call now 131 873, we’re talking to Joelle Matar from Turner Freeman Lawyers, medical negligence is our topic, 131 873, Rose has called through with a question. Hi, Rose.

Caller No: 1    Rose

 C1       Hi, how are you?

DK      Yeah, well thanks.

C1       I just want to know, like if you’ve been going to a GP for years and they fail to diagnose a condition, can you sue for medical negligence?

JM      The short answer is yes, you can, it depends on the type of condition, and it also depends on the length of the delay in diagnosis but also the outcome. So, in the event that the delay hasn’t made a difference to your outcome, you probably, there’s probably nothing there, there’s no damage which you can be compensated, but I’d love to speak to you Rose, so please give me a call after and we can have a chat.

DK      Alright we’ll get your details Rose, stay on the line and we’ll put you on to Joelle to see if we can find out and explore that some more. What are the protections in place though for medical professionals, because there would be vexatious claims, there would be patients who just aren’t happy with the doctor’s diagnosis, they have protections don’t they?

JM      Yeah, look they do, at the end of the day you cannot commence legal proceedings without being satisfied that a claim has reasonable prospects of success, and this is why we have to investigate a potential claim and it’s only once we complete the investigation, once we have the necessary evidence and support of the allegations of negligence and a cause or relationship between the allegations of negligence and the injury, that’s when we’re able to be satisfied that a claim has reasonable prospects of success and actually commence legal proceedings. So it’s not a matter of you know a person making a phone call and saying I want to sue so and so and then we’re running up to court and filing a claim, so it doesn’t work that way.

DK      Alright, Molly’s got a question for us, hi, Molly.

Caller No: 2    Molly

C2       Oh, good afternoon, thanks for taking my call. My husband was misdiagnosed with epilepsy for ten years, every time he had a grand mal. or a major seizure the neurologist would just increase the medication, he was on three different anti-epileptic medications, finally we sought a second opinion, cause he’s a very stubborn man and it was found that he didn’t suffer from epilepsy, he had a psychogenic non-epileptic seizures which is caused by trauma from his childhood.

DK      Oh goodness.

C2       But they misdiagnosed it as epilepsy and in that ten years his life was destroyed. He couldn’t do anything, he couldn’t work, he was just almost a vegetable for that period of time and every time we went to a hospital emergency because of his seizures they would say his medication level would be toxic, we’d go back to the neurologist, he’d adjust it and yeah, he’d just kept increasing and adding another, anyway that’s the story and we lost ten years, we lost our farm cause he couldn’t work it, and he suffered greatly.

DK      Molly this just sounds like a heart wrenching experience for your husband and everyone in the family. What would be the…

C2       My husband is a scientist.

DK      Oh goodness, Joelle would Molly have any prospect of a claim here?

JM      I’d love to be able to help her and her husband. So again, give me a call and I’d a thorough history, get my head around the timeline of events, and see if there is something that we could do. I’m really hoping that there is.

DK      Alright I am too, let’s stay on the line Molly and we’ll get your details and pass them on to Joelle. 131 873 if you’ve got a question, free legal advice and we’ve got a $100 voucher from Westfield to give away as well to the best call. Michelle’s called in, hi, Michelle, what did you want to know from Joelle today?

Caller No: 3    Michelle

C3       Hi, good afternoon, first I wanted to say how much I enjoy your show and I’m always so happy to be in the car and be able to listen to it.

DK      Oh, you’re very kind, thank you, Michelle, much appreciated.

C3       Yes, well anyway my story happened four years ago but it’s something that’s been in my head all the time, I lost my husband, he was only 61 years old and he was a very fit gentleman and he was a soccer player, the only injuries he had was to replace knees because he played so much soccer, so that was the story with Ron, anyway, the long and the short of it, he developed what happened to be influenza A and he did see a doctor, he did the right thing because his son pushed him, mum, dad, I don’t like your cough. On a Monday, by the way he was dead by Thursday, so on a Monday went to see a GP, just so you know the story and the GP happened to be an old student of mine, I’m a teacher, and anyway he saw her, had a swab of his throat, did all the right things, everything was done, however he got worse by Tuesday and he didn’t hear from them, from the medical staff from the practice, so he did ring, I made him ring on Tuesday, he rang up and asked to speak to the particular doctor, and at the time he didn’t get a call by night time. So this is a development of everything that was happening.  So by Tuesday night he did report and spoke to her and she said yes, just keep on having fluids and rest and that’s it. So it happened Wednesday he was so bad that I saw him in the morning, I kept him away from me, I’m diabetic so we slept, luckily I had a room that he could sleep in, the long and the short of it, I told him have a shower, I’m gonna take you into casualty, you don’t look well, he returned from the shower, he looked blue  So I called the ambulance. The ambulance, minimal blue, but you know what I mean, so he came out of the shower, the ambulance took him, by the time I reached St Vincent’s Hospital they told me they had put him into an induced coma.

DK      Oh goodness, Michelle, it’s just such an awful story and I can’t imagine what it must have been like to be enduring that and to lose your husband in that way. Joelle would there be any recourse here?

JM      There might be, there might be, the only thing I’d recommend is that whether she speaks to me or another solicitor that she does it quickly because there is a limitation period and I think she mentioned it happened four years ago.

DK      What is that limitation period?

JM      So it’s three years being the earliest but it’s three years from when you realise you are injured and it’s the fault of the defendant and it’s worth suing over, having said that because it’s already been three years, it’s something that has to be looked into expeditiously, so I wouldn’t leave it any longer.

DK      Alright Michelle, stay on the line we’ll get your details to Joelle because that time limit, we want to make sure you can look at that and hopefully there’s some recourse for you. Sandra’s got a question also, hi, Sandra.

Caller No: 4    Sandra

C4       I’ve run out of time to do anything about it but it has been in my mind, I was in hospital and I coming back from radiology and the bed tipped. I went on the floor, the mattress went on me and the bed went on the mattress and I had soft tissue damage, so, but it stays in your mind all the time.

DK      And how long ago did it happen, Sandra?

C4       Four years, so I can’t do anything about it now.

DK      Well, you know what, Joelle’s sort of not closing the door entirely, because it can be looked at.

JM      Yep, so look, it’s not three years set in stone, so three years would be the earliest, but it is subject to what I explained earlier when you realise you are injured, it’s the fault of the hospital and it’s worth suing over. So up until those criteria have been established there is still room for argument that you’re not out of time, but the thing that I want to ask Sandra is, do you actually have any ongoing injuries be it physical or psychological?

C4       Umm, not physical, psychological, it just plays in your mind all the time.

JM      Yeah sure.

C4       And I think because of the way it got handled, it was like they swept it under the rug and I don’t blame the wards men cause it turns out there was a fault in the bed.

DK      Well look, why don’t you stay on the line, Sandra, we’ll get your details to Joelle who can look into it a bit further for you but, you know if it is impacting your health and your mental health then you possibly could have some grounds there, so stay on the line, we’ll get the details. Chelsea, how about you, what’s your question?

Caller No: 5    Chelsea

C5       Yeah, hi there, my partner, he’s 30, he’s got crohn’s disease and he had his first surgery back in February, basically it’s now September and they’ve only just done a test to deduce that there was an issue with one of the surgeries, so he’s been off work, he’s been unable to go to work, he’s been in and out of hospital countless times for pain and so they’ve only just worked out that there was an issue, he went to have the issue rectified, they didn’t do anything, they told him to go home without even speaking to a doctor and basically we’re still just fighting for him to get care. We’ve gone to different hospitals to try and get second opinions and try to get treatment and basically he just keeps getting sent home to wait for this one particular surgeon, who just keeps sort of stuffing us around and not giving us any answers.

JM      Right. Alright, look it sounds, it sounds like there’s, just based on what you’ve described, it sounds like something isn’t being done, that probably needs to be done, having said that, I really don’t know, I mean you keep mentioning issue, I really don’t know what the issue is, so I do need a little bit more information, and I’m hoping I’d be able to speak to you afterwards and just get a better idea of what the issue is and what’s his ongoing condition so I’m able to figure out really is there something that they should be doing.

DK      Alright, so again Chelsea, if you can stay on the line we’ll get your details and hopefully we can explore that a little bit further for you. We are unfortunately out of time, Joelle, it’s always a subject matter that people are very interested in obviously as you say, mistakes do happen but when they happen, when it comes to medical care, it can be really life threatening and life changing and it impacts so many people so it’s an important subject matter but we thank you for your time today.

JM      Pleasure.

DK      Joelle Matar there and if you want some legal advice, Turner Freeman Lawyers, they’ve got a range of specialised legal services including compensation and negligence law, asbestos litigation, superannuation and disability claims, employment law, wills and estates and property law, you can go to turnerfreeman.com.au or call 13 43 63 and we’ll give Michelle our $100 Westfield voucher for today. You’re on afternoons with Deborah Knight.