Q & A on 2GB discussing medical negligence 23 February 2016
Tuesday, 23 February 2016
CS – Chris Smith/SG – Sally Gleeson /C1,2,3, etc – Callers
CS Yes we do this on a regular basis on Tuesday.. Thanks to Turner Freeman Lawyers and we’ve got our Legal Matters segment and also as we normally do we give away a $100 Westfield Voucher to any of our listeners whether you are in Canberra, Brisbane, Bathurst, Sydney or anywhere else in Australia – you can win that $100 Westfield Voucher – we choose from our callers between now and the top of the hour. Remember to pick up your local newspaper too. There are many listeners who’s local newspaper features to Turner Freeman Legal Matters column and they cover all sorts of topics including compensation and negligence law, family and employment law, wills and estates law, superannuation and disability claims as well. So pick up your local newspaper. Once again $100 Westfield Voucher for one of our callers between now and the top of the hour. And it’s a chance to focus today on something we haven’t had a shot at in 2016 as yet, the ins and outs of medical law, medical mishaps, medical negligence and you know when you’re talking about medical mishaps in hospitals in particular, there are serious consequences as many people would know. So what entitlements do patients have? If you’ve got a question on the issue of medical law, maybe a compensation appeal you’re involved in or a case. If you want some free advice, Sally Gleeson has come into the studio. One of the lawyers for Turner Freeman and she joins us right now. Sally. Thank you for being with us.
CS Good to have you here for the first time in 2016. Medical negligence, I would have thought can cause the worst of injuries and in particular brain injuries. I notice there was a story only 24 hours ago about a young kid without judging that particular case, what entitlements do patients have or their families have if out of a medical procedure, sadly someone ends up with a brain injury?
SG Well brain injury falls within that category of medical negligence. That’s probably one of the most complex because in a normal medical negligence case you’re trying to navigate through medicine and try to understand the medicine that particularly when it’s a brain injury, you can only imagine the complexity of the medicine you have to deal with and understand; and brain injury has a very profound effect on someone who’s affected and on the family. So we have the difficulty of number one, understanding the medicine, why that brain injury occurred and number 2, understanding what effect that that brain injury has had on that person.
CS So you would recruit as the lawyer involved in the case, you would recruit a neurosurgeon to look at the papers and how easy is it for you to get access to the documents you require.
SG That’s exactly right. So the first thing you have to do is to determine how it occurred, obtain a statement from the family member, the person acting on behalf of that injured person. You can’t speak to…. often you can’t speak to the person although they need to be present, they need to understand what’s going on if they can understand what’s going on, but the first step is to understand generally what occurred and in the second step is to obtain the clinical records, from the hospital or from the doctor and speak to the right experts about initially number 1, seeing/ascertaining whether there is a case, who are we criticizing, why are we criticizing them? Is there anything to criticize?
CS So there’s two levels here. I mentioned earlier mishaps and/or negligence. They are two different things. Does it mean that just because it’s a mishap you are denied any kind of compensation argument?
SG There’s a big difference between a mishap and an act of negligence. Mishap can be not negligent or can be negligent, but negligence is any act of incompetence, anything that could have been avoided as a result of inadequate care or care that failed to adhere to the standard of care that was required by that medical practitioner.
CS But if I was someone who had a case and we discovered it turned out to be a mishap and wasn’t overly negligent, could you prove that the hospital still owes you a certain apology and that apology might come in the form of compensation?
SG There’s absolutely no correlation between an apology and compensation.
SG Hospitals… any apology that a hospital makes or a doctor or a health practitioner makes is an inadmissible ….. I would recommend that an apology is made because it’s not an admission of negligence or guilt, it’s just a sign of remorse.
CS Yeah, yeah.
SG It’s saying to the family – we are very sorry about what happened and often they don’t see me. They don’t need to see me. They got what they want and it’s something that I think as a matter of policy and practice, it’s vital.
CS It’s a moral issue that one isn’t it? Kim has got a question for you. Sally is listening Kim, go right ahead.
Caller No: 1 Kim
Kim Hi Sally.
SG . Hi Kim.
Kim I got an operation about 7 years ago when I had a knee replacement. Well I’ve just actually found out that he’s put my knee cap in the wrong spot because I haven’t been able to bend it.
CS Laughing – What?
Kim Yes, and he’s cut one of my muscles on my leg. So I can’t ……. I can walk…. I can’t bend down, I can’t do anything and until Chris mentioned it today, I went oh, maybe something, I don’t know. I don’t know – am I too late>
SG You’re not too late…… When did you first realise – jeez something’s wrong here.
Kim Well I had a knee replacement and then I went to the rehab and then he had to do a manual manipulation. When he’s done the manual manipulation, he’s actually ….. what he…. they had to break my leg because it healed too quickly, so they put me under and they literally break it and then that’s obviously when the knee cap has moved and I’ve been – I was on morphine for 3 ½ years just in severe pain.
SG And you haven’t seen anyone else about it? You haven’t sought a second opinion or spoken to someone independent about it?
SG Okay. You’ve been suffering since?
SG And we’re talking about the same practitioner that’s done….. who’s treated you this whole time.
Kim Well I haven’t gone back to him. I just….
Kim It was a surgeon….
SG Yeah. Well it’s definitely something that I am very happy to help you with. You need to investigate it. That’s not normal…. It’s not a normal outcome. It’s not to say that it’s something that I can definitely help you with by way of, you know, suing that surgeon but it’s something that you definitely something that you need to investigate.
CS Is there a statute of limitations in any of these cases?
SG Three years from the date that the cause of action was discoverable.
SG And that’s really an objective and subjective test.
CS Okay, Kim stay on the line. I’m going to put you back to Gabriella and we’ll make sure you can be in contact with Sally if you’d like to go further or at least see her and of course the first consultation is free through Turner Freeman and that number by the way if you want to contact them directly, not through here, 13 43 63, 13 43 63. Jim go right ahead, Sally is listening.
Caller 2 – Jim
SG Hi Jim.
Jim Hi. Look recently I had to go and see a surgeon and I got asked to sign these waivers. What legalities do these waivers have upon the operation if something later goes wrong?
SG The way that you are talking about Jim, I assume is a consent form, consents to have the procedure done and I understand the following complications may occur as a result of the surgery.
SG Yes, well those waivers…. what you’re signing is ” I acknowledge that there are recognised risks and complications of any surgery and should something occur that is a recognised risk or complication, then I understand that that’s what I’m embarking upon”. But it doesn’t absolve negligence. So if something happened that was out of the ordinary that wasn’t within the ordinary scope of what may have happened during surgery, then that’s a totally different scenario, you’re not signing your rights away by signing that waiver.
Jim Oh good. Because I thought that by signing that waiver, you know I don’t have too much surgery thank God, I thought I’d be signing my rights away.
SG No, not at all.
Jim Thank you very much for your help.
CS Alright Jim. Thank you very much for that. Karen. Go ahead.
Caller 3 – Karen
Karen Yes hi. I was wondering if you could just answer a question. I had surgery in September last year. I signed the form for a general anaesthetic. While I was in the anaesthetic bay the anaesthetist sister suggested that having an epidural would be the best way of pain relief after the surgery. There was nothing explained to me at the time. I now have permanent damage from the needle has actually gone in and damaged the spine itself. What rights do I have considering there was no explanation of my right for what could go wrong with the epidural at the time?
SG Did you…. when it was explained to you, I assume it was explained to you shortly before the surgery that you could have an epidural. Was it explained to you …. Did they explain to you at the same time the possible risks of an epidural?
Karen No I’d signed the form a week before for the general and I’ve had plenty of general anaesthetic before, so I’d had no problems with that.
Karen It was once I was in the anaesthetic bay just about to go into the theatre that the anaesthetist came in and said alright this is the best way for pain relief. We are going to do this. He put the needle into my spine before injecting anything and I had problems straight away.
Karen Due to birth defects I’ve already got problems with my back, so I’ve been told that anyone who has back problems really shouldn’t have an epidural in the first place. There was no questions ever asked or anything like that about previous medical conditions or anything like that.
SG Sure. So obviously the consent you gave wasn’t informed consent and that’s really important about consent, you really need to give consent in circumstances where everything about what you’ve consented about has been explained to you in full and it seems to me that that didn’t occur in your situation, so definitely something that I’m happy to talk to you about.
CS Alright Karen – I can put you on hold and put you back to Gabriella and we can get you in touch with Sally off air if we can do that, that would make it a lot easier. I need to take a break and then we’ll take more of your calls. Still that $100 Westfield Voucher to give away in our Legal Matters segment courtesy of Turner Freeman.
CS Sally Gleeson from Turner Freeman in the studio to take your calls and a very good afternoon to Sally’s husband who’s listening intently…. you like that…. we like that… I hope she gets a decent critique at the end of this segment. 131 873. We’re 9 minutes away from news. Dean. Go right ahead. Sally’s listening.
Caller 4 – Dean
Dean Sally, how are you going?
SG Hi Dean.
Dean I cut my finger. I sliced it just before Christmas – went to hospital – they had a look at it and basically what they did, they just glued it up – they didn’t sort of investigate it too deeply and I subsequently realised I’ve cut the tendon on it, so……
SG Wow Dean, I just actually finished 7 days of running the exact same case in court, about the exact same issue. I acted for a man where the exact same issue arose. So what’s happened now with your tendon?
Dean I’ve got to go to a specialist about a month. I think they may have to fix it – sew it or something because the top of my finger doesn’t bend anymore so…..
SG So how far between the time that you sliced it, went into hospital and the time that they realise that the tendon was severed?
Dean Ah, probably a month.
SG One month.
Dean Apparently that’s too long because once it sort of a couple of weeks, it’s bad.
SG Absolutely. So what we need to do is see how you fare after they’ve repaired the tendon.
SG And it depends very much on whether you can flex the finger, whether you’ve got any loss of strength in the finger or power and then definitely something I’m happy to talk to you about because I’ve got so much experience in having just run this type of case. Normally you might be right…. 2 to 3 weeks is the window. You might be right. You may have just fallen within that window but if it’s outside the boundaries of that window it might be something I can help you with, but definitely keep in touch and I’ll talk to you about it.
Dean Absolutely. Okay, I’ll just ring up the normal switch and get your details.
CS You can dial 13 43 63 ask for Sally Gleeson, Dean. 13 43 63.
Dean Awesome. Thanks guys – have a great day.
CS Okay same to you.
SG Thanks Dean.
CS Grace, go right ahead.
Caller 5 Grace
Grace Hi, how are you?
CS We’re well.
Grace That’s good. I’ve just got a quick question, it’s probably too late for me to do anything about it, but I’m just interested to know where I would have stood from a point of law. About 4 years ago I had to have an emergency hysterectomy and while I was under anaesthetic my gynaecologist accidentally nicked my bladder and obviously I didn’t know because I was under anaesthetic. When I woke up my husband told me that I had to have a bladder reconstruction, so I was in hospital for an extra week. My surgeon was quite apologetic but then I incurred all these horrible bills from the urologist that were a lot worse that the bill from the gynaecologist.
Grace And I’m wondering from a point of law, could I have actually had a legal go at my surgeon for doing that? Because altogether it probably cost me another $6,000.00.
SG What about – how you are now? Do you have any ongoing …..
Grace No…. I’m fine – no I’m fine. I was just interested could I have had a go at him about the cost of it all?
SG You could have. If you spoke to me and you rang me I would have said to you, don’t retain me, I’m too expensive.. I’m happy to write to you a letter of a you know pro bona basis and send that letter off to your gynaecologist and ask him or her to meet the cost of what you have incurred.
Grace But it’s too late now isn’t ?
SG It’s not too late. No. Not at all. It’s never too late.
SG Did you ever seek legal advice about it? Did you ever contact a lawyer about it?
Grace No. I just assumed that I’d just have to cop it.
SG No – never too late.
CS Never too late. Grace and it’s never too late to win $100 either. You’ve got a $100 Westfield Voucher.
Grace Ohhh nice.
CS That will make up for a tiny weenie bit of the big bills.
Grace Lovely. Thank you.
SG If you need my help Grace. Just give me a call.
Grace Sounds good. Yeah. I mean the gynaecologist was very apologetic but the cost was horrific.
Grace Great. I’d like to.
SG No problem
CS Alright stay there Grace. Just stay right there and I’ll put you back through to Gabriella and we’ll make sure you’re in contact with Sally. I’ve run out of significant time to take another call because most of these stories end up taking us a minute or so to get through but what …. the message through most of those calls today, the theme is,
SG Act quickly
CS Act quickly…. don’t leave it…. don’t ponder whether you’ve got a problem from surgery or a medical negligence case or incident. As the question – there’s nothing wrong with asking a question right?
SG It’s free advice. Give me a call and I’ll help you one way or the other.
CS Yeah – good stuff. Alright thank you very much Sally for coming in this afternoon.
SG Thanks Chris.
CS Sally Gleeson. One of the lawyers at Turner Freeman. We have this segment on each and every Tuesday afternoon. We tossed the subjects around from week to week, so we’ll take your calls once again this time next Tuesday.