Sally Gleeson discussing medical negligence litigation
Tuesday, 29 September 2015
CS – Chris Smith/SG – Sally Gleeson /C1,2,3, etc – Callers
CS And it’s time for our weekly legal segment with Turner Freeman, and this week we’re talking medical law with Sally Gleeson. So if you’ve got questions for Sally, now is the time to call. Don’t leave it too long. Get on the phone, 131873 and thanks to Turner Freeman lawyers, one of our callers will win a $100 Westfield Voucher to give away. How are you Sally?
SG Hi. Good thank you. How are you?
CS Good. Nice to have you in the studio.
SG Thank you.
CS Medical law – is that what you just specialise in that one branch of the law?
SG Yes. I mean I do all types of compensation claims, but that’s my specialty. Medical negligence litigation.
CS Oh ok, I was going to say is it always negligence?
SG Only if I can bring the case……
SG So my job is to look at cases carefully, analyse them and ensure that there is a case. And if there is a case, I help people with any compensation that they are entitled to receive.
CS Now, I know there’s class actions. It can happen with that. We are about to talk about a possible one of those in just a moment, but do you look at class actions normally or just the individual?
SG We normally, we have one person approach us. In certain circumstances, not usual circumstances, a multitude of people have suffered the same consequences from the same alleged negligence, so we look at bringing, rather than running a multiplicity of claims at the same time, we look at a class action.
CS Okay, and it also, it might also make a difference in whether a case is viable to I suppose.
SG That’s right. Yes. It depends very much on the circumstances of each case.
CS What you are involved in I know involves dodgy breast implant surgery?
SG Yes, that’s right so a number of women, numerous women have now approached our firm and they are asking our firm to investigate potential compensation claims as arising from surgery conducted at a particular cosmetic institute and these women have suffered immensely and have asked me to have a look at their cases and see whether I can assist.
CS Is it to do with the way the procedure was carried out or the actual quality of the implant?
SG Both. Mainly, it looks like and what appears to be the case is that poor surgical techniques have been applied. I mean these women have suffered devastating results. I’ve heard cases and I’m still interviewing many women and the numbers grow on a daily basis. We’re talking about implants that were of the wrong size, implants that were misplaced, implants that were misjudged in size and positioning and obviously that can lead to terrible things.
CS Yeah. Geez, it’s remarkable isn’t it. It seems to be, at least with the media reports, a lot of the cases in the medical fraternity we hear about are to do with cosmetic surgery.
SG More and more. It’s a booming industry and of course it’s very very important that we understand the seriousness of cosmetic surgery. The word cosmetic doesn’t undermine at all the gravity of the surgery, it is surgery.
SG And so when someone, either male or female embarks on the surgery, they really really need to understand that there are risks like any type of surgery and they really need to view those risks carefully and get second opinions if they can.
CS Is it regulated enough, do you think the cosmetic industry?
SG No, the problem with the industry at the moment and I’m not a doctor, but the doctors with whom I deal have commented on this recently in the media and off air and the problem is that there are two types of surgeons, cosmetic surgeons and plastic surgeons and they are very very different in terms of their skill, expertise, training and of course patients don’t know this. They think that by going to a surgeon, the person is a surgeon, has the requisite skill and expertise and many many years of post graduate training but unfortunately in reality that doesn’t occur.
CS Well you’re talking about an issue to do with the way these implants were implanted I suppose, but also from what I’ve heard when it comes to cosmetic surgery in many cases is the back up I suppose. The fact that it is surgery as you said.
CS People focus on the fact that it is cosmetic, that it is surgery and that there are those dangers that you’re talking about, including potentially with anaesthesia or to do with infection and that’s where the problems can lie can’t they?
SG That’s right, well there are recognised risks and complications of any surgery…….
CS That’s right……
SG And sometimes in the best of hands, bad things happen. But, when things are done properly in most circumstances you get the result that you want. But, when things are working against you to start off with, you’ve got a surgeon with very little skill or expertise, you’ve got a set up that’s not designed specifically for the needs of the patient and then you’ve got very poor follow up care, things are bound to go wrong.
CS Ok. 131 873. Talking medical law. Our weekly segment with Turner Freeman Lawyers and today Sally Gleeson is in the studio taking your calls. Now Sally, we’ve got Jane on the line. What’s your question Jane?
Caller No: 1 Jane
Jane His Sally, I have a question in regards to negligence time…. like timing and how long you can claim…..
Jane And I’ll give you a quick rundown. My son had 12 strokes when he was 2, he is now 13. He ended up with severe brain damage. It all happened while he was on life support in the Children’s Hospital. I saw a solicitor when he was 2 just after it happened and she said that I’d have to wait until he’s 13 because it was acquired brain injury/cerebral palsy. Now he’s 13 and we are wondering how we’d proceed, if any.
SG Jane, what you are alleging is was the possible or potential negligence?
Jane Okay, the doctor, his surgeon punctured the back all of his heart which caused him to bleed out which of course caused the blood to go to the brain or it could have been his ventilator wasn’t inserted properly in his chest which caused him to starve of oxygen.
SG Okay and when, what year did this happen?
Jane Um, that would have been 2006.
SG Okay. The law changed in December 2002 in relation to limitation periods. From December 2002, the old law which was harsh and restrictive was relaxed a little bit so from December 2002 there’s a three year limitation period which commences to run from the date that the cause of action was discovered or discoverable and that’s an objective and subjective test. So it’s not clear cut. Listen, you’ve got three years from when the potential negligence occurred. Its three years from when a reasonable person would have known that there was negligence and also when you though an expert’s opinion, medical opinion, would have been able to understand that there was negligence. So, in the case of your son because he was a child, normally with children it’s not really know what the prognosis is and what the full extent of the injuries and disabilities are until they are little bit older.
Jane Yes, that’s what I was instructed when he was younger…. .
SG Yeah, but still you have to run a case quickly and expeditiously. You don’t just assume that because they are a child you have that time. You are not afforded the luxury of that time necessarily by law. So your son might still be within time but you really need to see, I mean I’m very happy to help you, but you really need to see a lawyer about it and quickly.
Jane Oh okay, all right. Yeah… because I’ve went on some few ……………. and they said that I can wait until he’s 18 and he can make the claim, but I thought best of doing it sooner than later.
SG I mean I’d definitely recommend against that…
Jane Yes – all right.
SG I’d definitely recommend acting sooner rather than later because the Judge might take the view that you’ve waited too long and not through any fault of your own, but when we really need to act quickly. And also the other thing Jane is with children, you don’t wait until they’re 18, you wait until they’re normally at school age because the view now by the judiciary is that they need the money to get better, to have the treatment so give them the money now, rather than wait until they are 18 when by then it might be too late.
Jane Yes, I mean – that’s what I mean. He has improved quite a lot ….. so…. but I mean that is what it is – as the years go by what he’s able to do and what he’s not able to do.
SG Yes and your son needs help. All the help he can get when he’s young. So, very happy to help you if you can leave your details, I’ll give you a call.
Jane Yep – that would be great.
CS Ok Jane – hang in there so we can get those details.
Jane Yes – thank you very much.
CS So that’s I guess a lesson for everybody when it comes to the statute of limitations on this.
SG Yes. You’ve got to be very very careful – don’t assume that times on your side, if you suspect that you may have a claim in negligence, talk to a lawyer about it.
CS Okay – 131873. Ian..
Caller 2 Ian
CS What’s your question?
Ian I believe I was damaged in an operation through negligence of a surgeon and secondly as the previous lady was speaking I believe that I have received brain damages from anaesthetics. Now I’m looking at all of that at the moment and trying to work out what is the best way to go because you don’t know that when you’re an operation that maybe you get brain damage from anaesthetics.
SG Sure. Ian if I can ask you when you had the surgery?
Ian Ah, it was late 2011. I have been told by one lawyer that technically it is now out of time in terms of 3 years, but that you can still mount a claim beyond that…
SG Ian, when someone suffers from a brain injury, any type of disability where it may impair a cognitive function, the good thing about it is that time can stop. Time ceases to run from the time that you sustained your brain injury because it is very hard for you to understand and know. So there’s definitely something worth investigating in your case and I can’t say to you that time has elapsed, that …. I’d be very happy to help you and discuss it with you.
CG Okay Ian.
Ian Well can you…….. your telephone number….
CG Well, we’ll put you on hold as well.
CG And we’ll get your details.
Ian Thank you
CG Okay, thank you for your call. By the way if you do need to call Turner Freeman Solicitors who are of course sponsors of the show 134363 is that general number but particularly today we are not just talking general law, we are talking medical law with Sally Gleeson, 131873 is the number if you would like to ask a question. Just on that quickly back to the plastic surgery ….. or cosmetic surgery, we talk a lot about this cosmetic surgery tourisms I suppose. People going overseas…. you know…. buying a package…. get to stay at a resort while they have a nip and a tuck or whatever the case may be…. Thailand is one of the popular places they go. If they come back and there’s a problem, does that mean they’ve…… because it’s happened overseas they’ve got no legal standing at all?
SG No – not at all. Depends… The law about surgery being conducted overseas….. .isn’t in favour of ….. Listen it’s in the jurisdiction of an overseas country and therefore that jurisdiction applies and therefore they have no rights. If the ….. most of these contracts are entered into in Australia, so the person gets on the email, enters into a contract with the particular surgery or hospital in Thailand and the law in relation to surgery being conducted overseas can very much be the New South Wales law.
CG Oh really?
SG Yes. Depending on when the contract was formed and details about times and events and where they occurred, whether in New South Wales or in that overseas county. For example the exchange of money or when the contract was entered into and when there was agreement and contract. So those patients may still have rights under NSW or whatever State they are in, in Australia.
CS That’s very interesting to know. Because I know the medical fraternity is consistently warning against doing that and if you have done it and there’s been a problem, still worth exploring.
SG Definitely yes.
CS 131873. We’re up to Andrew now. Andrew, what’s your question?
Caller 3 Andrew
Andrew Hi yes. My brother, he had an allergic reaction and went off to the Murrumburrah Hospital and in the process of being treated, he was given adrenaline intravenously rather than inter-muscley. As a result he had a heart attack and he was transported from Murrumburrah to Ballarat. Now would he be ….. any compensation due to him? That sort of medical negligence? I’m presuming you don’t administer adrenaline onto a vein.
SG No – that’s right. So Andrew – what injury does your brother have? How is he now?
Andrew He’s okay. But his….. I’m not sure about his heart….. he’s…… as I said he’s had a heart attack as a result ….. he said his heart was just like jumping out of his chest….
Andrew Um and yeah. I’m not sure his exact medical details but I know that he has to go for regular heart checkups as a result.
SG Okay. So as a result …. putting aside the issue of negligence, with every case we have to look at someone’s injury and suffering and what they’ve been through. So even in cases where there is clear cut negligence, unless they have an injury that’s compensable then that person isn’t entitled to any compensation. So it very much depends on your brother’s heart condition. Whether his prognosis is good or not good. Whether his heart function has been compromised and what the opinion of a cardiologist is about his long term outcome. So it is definitely worth investigating.
Andrew Okay – no worries – thank you .
SG Thank you
CS Thank you Andrew. 131873 and …….. Lawrence. What’s your question Lawrence?
Caller 4 Lawrence
Lawrence Yes – My question is about….. I was working for a company and I had an injury where I had a boulder fall down and hit me in the shoulder and because of the impact of the boulder I had fallen down and hit my knee as well and when I had gone and done my scans and everything, they said that I could do light duties and then after that he turns around and said – okay come back to work and do light duties – so I did and they go nah…. go home and when you get cleared come back to work. I said all right. So I went and got cleared after a couple of days and went back to work and after a couple of hours, he says: Look go home I don’t want you to work here no more. He didn’t give me any reason – nothing at all and you know – I want to – fix up my knee and fix up my shoulder – so I’ve turned around and said to him – look I’ve got these problems and now they are just ignoring me.
CS So it is more industrial law almost this one …. not medical law isn’t it.
Lawrence Um.. both…
SG Okay so – when you say he…. are you talking about your employer or a doctor?
Lawrence No actually the form worker.
SG Okay – someone at your work?
Lawrence Okay and how is your knee and shoulder now?
Andrew I have got a meniscul tear, I’ve got a bakers cyst that’s ruptured. I’ve got big problems in the knee – yeah.
SG Okay and what are you saying is the medical negligence?
Lawrence Well I got the injury and um…. they are not responding to treatment….
SG Treatment or your need for treatment.
SG Okay – in terms…… putting aside the industrial issue – I mean I assume you have a workers’ compensation claim and you have lawyers acting for you and that’s being ventilated?
Lawrence Ah well, I’ve been speaking to someone in regards to it….
Lawrence But I haven’t with it….
SG Well you should see a lawyer. A workers compensation lawyer. We have those at my firm. But in relation to the treatment issue you should see someone else. You should see another doctor, you should get a second opinion. You need treatment for your injuries. I can’t help with any medical negligence claim until you reach a stage of maximum medical improvement. So you’ve had all the treatment that you needed, you’ve reached a stage where treatment can’t help you improve and they say to you that this is as good as it is going to get, you are not going to get any better or any worse. So my opinion to you would be to see another doctor, if you are not getting any joy from your current medical practitioner.
CS Okay Lawrence?
Lawrence Thank you.
CS Okay thank you for your call. Talking about accidents today. Just to put aside Sally. There’s been a remarkable survival story of someone falling 50 to 60 metres at Mount Ainslie in Canberra. A boy and his family in Canberra from Victoria on holiday. It was day 1 of the holiday. They turned up at Mount Ainslie and yeah, he slipped and fallen 50 to 60 metres. Paramedics were to get the boy on a stretcher, ropes were attached and has been pulled to the top and taken to Canberra Hospital in a stable condition. Sad that it happened, but it could have been a lot worse I guess. Facial injuries are what he suffered. Back to Legal Talk 131873. Hello Vicky.
Caller 5 Vicky
Vicky Yes, hello. How are you going?
CS What’s your question for Sally?
Vicky Um, okay – hi Sally.
Vicky My father had stents put in at different times and I’m going to be frank but I think he also had an angiogram first – is that where they put the fluid through the veins – they pump the fluids up from his thigh through his body…..
SG Okay to…… what sort of condition did your father have for them to do that?
Vicky Well he had an aneurysm but not in his brain.
Vicky They were trying to put stents – they had to do tests…… so what had actually happened was the fluid leaked under his back….
Vicky And so he has – they say radiation burns… So it is continually eating his back away and there’s no cure.
SG No cure. Yep.
Vicky Um – like you know we get it dressed. A nurse comes in three times a week now and dresses and it’s on the base of his spine – right down low so every day he’s uncomfortable, itchy and it’s just literally eating his skin away.
Vicky So, you know – it’s mum and dad and their elderly – it happened about in Westmead more than 5 years ago and we were just wondering now…. um you know.
CS So it was 5 years ago and it’s a radiation burn from having that, as you say, that dye that they put through the system…. what do you think about that Sally?
SG The area on his back – you said on his back?
Vicky Yes – his lower back.
SG Okay – the area that’s affected – it’s a surface burn on his skin yes?
Vicky Yes that’s correct.
SG Okay so what does it look like? What degree of burn is it?
Vicky It’s like an ulcer – it’s just getting bigger and bigger and bigger.
SG And what are they doing to remedy it. What are they doing to relieve it or fix it or help him?
Vicky Well the nurse comes in and cleans him and dresses it every day – I’ve actually been told by several people that it’s actually – they just can’t fix… you have to make him as comfortable as possible.
SG And of course there is a risk of infection.
Vicky Oh – absolutely.
SG And the pain must be horrific for him.
Vicky Yes it is – and so uncomfortable every day of his life. like you know…. then we just thought… you know – we were wondering now – what – do you think that they should compensate – I mean the stress alone and we do have the nurse coming in now …. his life has totally changed.
CS Yeah – I can understand that Vicky. We are really really tight on time and I hate to do when it’s a serious thing but…….
SG But Vicky – I’m definitely happy to speak to you about it further. And if I can help, I definitely will.
CS Okay – so there may be something there – you’ll have a chat with her. Thank you so much for that Sally.
SG Pleasure. Thank you.
CS Sally Gleeson from Turner Freeman Lawyers and that is Legal Talk for today – medical law. It’s 9 to 2:00 pm – and it is 5 to 2:00 pm. Jade… Sorry.. Sally Gleeson was our solicitor – we are talking medical law and $100 Westfield Voucher for this week’s Legal Matters for Turner Freeman Lawyers will go to Jane who was one of our earlier callers there. And remember to pick up your news local paper to read the Turner Freeman Legal Matters column covering topics such as compensation, negligence law, family and employment law, rules of estate law and superannuation and disability.