Q & A on 2GB discussing Medical Law 31/03/2015

Tuesday, 31 March 2015

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CS – Chris Smith/SG – Sally Gleeson /C1,2,3, etc – Callers 

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CS       24 minutes to 2 O’clock is the time. Thanks to Turner Freeman Lawyers we have always got this $100 Westfield Voucher for our callers which we’ll give away between now and 2 o’clock to the call of the afternoon in our Legal Matters segment. Thank you to Westfields. Thank you to Turner Freeman. Don’t forget you can pick up your local newspaper each week to read the Turner Freeman Legal Matters column. Their lawyers cover a whole range of topics including Compensation and Negligence law, Family and Employment law, Wills and Estate law, Superannuation and Disability – you name it. Cosmetic surgery – Not something you would often associate with legal matters, but it is also not uncommon for complications to arise from cosmetic surgery.  With more cases being elective procedures, many people find that that they are not eligible for compensation. Now one example that springs to mind are breast implants and we often hear about women who have been fitted with implants using industrial grade silicon and there are so many aspects of this area; and what about those who seek cosmetic surgery assistance from overseas and what if that is botched. Do you have a legal leg to stand on? So many questions and if you’ve got them, fire away, Sally Gleeson from Turner Freeman is in our studio this afternoon to answer as many questions as she possible can on this medical law segment. Sally, thank you very much for coming in.

SG      Thank you Chris.

CS       It’s good to have you in here. We haven’t seen you before have we?

SG      No, you haven’t. Hopefully you’ll be seeing more of me.

CS       Oh….

SG      Laughing.

CS       So this is your first segment……

SG      That’s right, yes.

CS       With us….That’s fantastic. Good to have you in here. What are the criteria – well what is the criteria required to be eligible for cosmetic surgery compensation?

SG      It’s really like any other medical compensation case. If you’ve suffered an injury by reason of the fault of a surgeon who’s a cosmetic or plastic surgeon or someone who professes to be an expert in the area, then you have to prove certain things before you are entitled to receive compensation, but in essence, you have to prove that that surgeon breached his or her duty of care and that as a result of the breach, that patient has suffered an injury that’s compensable. So it is a three tier test. It’s not enough that someone made a mistake or was incompetent or you believe that.

CS       It got to almost be an intention here.

SG      Not an intention, but it’s negligence, so there is no intent. It’s carelessness, incompetence, it’s acting outside of the duty that that surgeon has to exercise; the test is reasonable professional, skill and judgment.

CS       It’s a big ask isn’t it really?

SG      It is and it’s complicated and people come and see me all the time and say well this has happened, but really the law is quite strict and they have to comply with the legislative tests before they are entitled to any compensation.

CS       What about…. we’ll talk about that further no doubt with the help of callers who phone in with questions in just a second, but what about cosmetic tourism, where we are seeing an increasing number of Australians travelling overseas for cosmetic surgery which is far more affordable. The surgery is often sold as a package as some kind of clever marketing idea to exotic holidays and places. So you can recover from surgery on a sun lounge by a pool. But there could be deadly consequences to these cosmetic holidays can’t there?

SG      That’s exactly right. Cosmetic tourism is a burgeoning area. You know with a world obsessed with how well you look. People are opting for cheaper surgery overseas. Um……

CS       We had that fatality did we not of the Gold Coast woman that got help in Mexico?  Is that the one?

SG      That’s right. And the problem with that is that you’re on holidays, you want to combine the advantage of being on holidays with getting some kind of cosmetic fix and often these surgeries are conducted in substandard conditions by someone who has no surgical training. So obviously when the outcome is at times devastating or catastrophic, there’s not much people can do. Um you can’t sue in New South Wales for something that occurred overseas; the cause of action has occurred overseas. So it’s a very difficult area of law.

CS       It’s a different jurisdiction?

SG      Absolutely. Different rules, different courts.

CS       And these are the risks you take when you go over and have cosmetic surgery taken.

SG      That’s right and what people unfortunately don’t understand is that it is cosmetic but it is surgery.

CS       Yeah.

SG      So like any other surgery carries risks and complications and its extremely serious.

CS       Yeah. Let’s go to some callers. I’ll ask you to put those headphones on if I may and there is something there you can turn there to adjust the volume. Kerry, you’ve got a question for Sally. Go right ahead.

Caller 1: Kerry

Kerry Hello. Thank you for taking my call.

CS       It’s okay.

SG      It’s no problem.

Kerry I had some joint replacement last year and during that procedure the surgeon actually burnt the cubital fossa which is the inside of my elbow. I had a third degree burn. Um he actually placed saw on the drapes and the saw was faulty apparently I had a third degree burn. Um so it was dressed for a couple of weeks and then I had this increased pain in the thumb joint so he thought maybe I had an infection because I had golden staph as well. He took me back to theatre and had a look, it wasn’t infected but whilst I was under anesthetic, he cut that burn out without my permission and took it off.

SG      Right.

Kerry So I am just wondering what I can do because I didn’t sign the permission form for that to happen.

SG      Ah. Kerry is it?

Kerry Yes.

SG      Hi Kerry. I can’t give you specific advice about your situation. I can’t actually talk specifically about your situation, but basically your issue from what I understand is that you didn’t give consent to a procedure that occurred. Is that right?

Kerry That’s right. Also that fact that I had to endure a third degree burn which was infected….. yeah

SG      Yep…  I mean this all falls within the ambit of whether your case is compensable. It depends very much on how you are now. Whether your burn is in a stable condition; whether you’re able to obtain any type of treatment to improve the way you look or the way you feel; you know, your condition has to be medically stable; you have to reach what’s called maximum medical improvement. So, it’s very hard for me to give you advice without knowing the specifics of the case, but it’s certainly something that I can assist you off air and talk to you about off air.

CS       But you could understand.. I could understand Kerry how upset you were.

Kerry I was incredibly upset….

CS       Yeah

Kerry Firstly with what happened with the burn and I was so supportive of him saying you know it was an accident; I was very nice to him and everything but then when we went to theatre he just removed it without my consent and we discussed that it would be removed by a plastic surgeon, not by himself.

CS       No. Exactly. I can understand. Kerry, you might have a particular case there. But look it’s something…. have you been in contact with a lawyer at all?

Kerry Not really, no.

CS       Well you may wish to contact someone like Sally from Turner Freeman who may be able to give you some direction and work out exactly from the evidence you have about whether you have a case or not.

Kerry Okay, thank you.

CS       Good on you Kerry. Thank you. 131873 and we are with Sally Gleeson from Turner Freeman. We’re talking medical law today. Ed. You’ve got a question for Sally, go ahead.

Caller 2  – Ed

 Ed       Yes, thank you for taking my call. I was curious as to the duration of time after a surgery that you have to file a claim because I heard it was only 12 months to file?

SG      It depends when the injury occurred. When the actual cause of action occurred. Anything that is past 6 December 2002, the law changed remarkably and assisted people who couldn’t bring a claim within the time frame that had been stipulated before that date. You’ve got three years from the date that the cause of action is discoverable to file the case in the applicable court. So, when is the action discoverable. The law says is an objective and subjective test. It depends on several criteria, but in essence a lot of people go and see someone, they have surgery, the result is untoward but they don’t realise it until many years later. So the law has become more lenient and it favours people who can’t really consult with a lawyer and issue proceedings within the timeframe that the previous law stipulated which was a three year time frame. You have the injury – you’ve got three years to sue. Now it’s three years from the date that the cause of action is discoverable. So it’s an objective and subjective test and it depends on several factors and most people who bring a claim or see a lawyer and file a case outside that three years, if they provide a reasonable explanation for why the case was filed beyond the three years, they are able to file the case in court.

CS       So a judge has a discretion to consider the case despite the ahhh extension over the three year period right?

SG      That’s right.

CS       Right okay.

SG      There are several factors that are looked at.

CS       Okay – good on you Ed. Thank you very much for the question. Judy – go right ahead.

Caller 3 – Judy

Judy   Oh hi.

CS       Hi.

Judy   Um, last week I had to take my 86 year old mother to a specialist appointment in a building that is attached to a major Sydney metro hospital. Um when we were leaving, we went downstairs via the stairs, the railing actually curved away, so the three bottom stairs, there was basically no railing; well mum fell, um she’s broken her pelvis in two places and has had internal bleeding. Um, like today….. .She’s been in hospital since last Monday a week ago, and today she’s been moved to a private rehabilitation centre; Um yeah – I was just concerned with her age of course, you know, how long or what sort of thing can she be covered for?

SG      My understanding is that she fell outside the building where you were visiting and she fell because the railing wasn’t adequate and she couldn’t hold onto anything and that’s how she fell, is that right?

Judy   That’s right.

SG      Okay.

Judy   Yeah

SG      Well that’s not a medical issue in terms that it is not a medical negligence or compensation case but it is certainly a case that I can talk to you about and give you advice about. I can’t give you advice right now but I can talk to you about it, but she definitely has recourse, potential recourse, particularly since and I’m very sorry to hear about, her injuries sounds terrible.

Judy   Yes….it is

SG      And particularly with the elderly, they don’t recoup as well and it takes a lot longer for them to reach, you know, the stage of recovery when someone younger may be able to reach in half the time, so I’m very sorry to hear about that, but she definitely may have a recourse action.

Judy   Okay, I did go back to the building the next day …….

SG      Yes.

Judy   OH&S people about it and I have walked past the same railing every day for the last week and they haven’t done anything. That is what really annoys me….

CS       Hmmmm, listen Judy, can I suggest given what’s occurred with your mother and no doubt you have been focused on making sure she’s got the best care and she’s being rehabilitated at the right facility, you may wish to turn your attention to some kind of legal recourse and you may want to contact Turner Freeman and I’m sure Sally can put you in the right direction of the expert that can help you through the queries that you may have. Ah 131873 is the telephone number.  I tell you what I might do with Judy – if Judy can stay on the line – I think we’ll give Judy the $100 Westfield voucher. Ah and maybe Judy would like to give it to her mother by the sound of it because her mother might need all the support she can get right now. $100 Westfield voucher to go to Judy and that’s courtesy of Turner Freeman Lawyers. 12 to 2.

CS       8 to 2 the time. I’m enjoying hearing some of the difficulties are having not because they are having difficulties but it’s so interesting to hearing whether cases have a chance of being, I guess taken to court and whether people have cases to, you know, make sure that they get compensation for. So we’ll go to some more callers on the same subject and when it comes to medical law, of course there are problems with some dental work that’s done. Murray is on the phone right now. Hello Murray.

Caller 4 – Murray

Murray           Hi, how are you guys?

CS                   Very well, go right ahead.

Murray Yeah, I’m a first time caller, um I had my full wisdom teeth out, just before my honeymoon and it all went totally pair shaped. Um when I got back from my honeymoon, I made a complaint – I had to go to hospital. I started bleeding really badly from the gums, um massive pain and the guy actually didn’t have an x-ray – he didn’t take an x-ray or anything like that. When I actually went and did the exam…. they have this board that reviews it and they seemed like they were taking it seriously, but when I got the letter back from them they kind of misrepresented the claims that I made. They said well this is not really a valid claim but they weren’t really addressing anything that I actually said and I got just so fed up, I just let it go.  What would be the next step that I could take to try and get it addressed in another way?

SG      Ah, so Murray, my understanding is that you made a complaint to a Board, which Board is that? The Medical Board?

Murray           Ah, yes. I made a complaint to the Board.

SG      Okay, and the Board obviously doesn’t have any power in terms of ordering any compensation in your favour, but they obviously can make recommendations and give you their general feeling of where you can head. I mean are you interested in…… what are you interested in?  What would you like to have done?

Murray           Well what I really wanted done was I wanted the guy not to make the same mistake again….

SG      Sure.

Murray           Like he basically did it without an x-ray and he was actually swearing at me over the table. I mean he was panicking. He didn’t have any proper extractor, I was the last patient of the day on a Friday, and I think he just thought that he dealt with my sister and family that I’d just be an easy one but my teeth were impacted and he took them right out – he didn’t even give me any pain killers at the end, I had to go and get Panadol. The whole thing was a joke.

SG      Yeah, well mean that sounds hideous. I mean… there are various avenues for relief. It you’re not looking for a compensation outcome, there’s an authority called the Health Care and Complaints Commission. Have you heard of that authority Murray?

Murray No I’ve not.

SG      Okay the Health Care and Complaints Commission. It’s a Board set up to deal with health complaints. They are a very influential body and whilst they can’t make ….. they can’t give you any advice or force anyone to do anything, they generally follow things up, they investigate matters and they make certain recommendations and those recommendations could be taken up legally by another body or authority but they are certainly quite constructive in assisting people with complaints. So I always give my clients that advice, putting aside whether they have compensable rights, it’s always good because a lot of these issues…. .a lot of people need closure on these issues, they need to ventilate the issues, they want to be heard and they want people to understand the suffering that they’ve been through and one way of doing that is by making a complaint to the Health Care and Complaints Commission……..

CS       That’s interesting, you know what I would have thought that when it comes to dental work, um it must be so difficult to determine what the right methodology was and whether the methodology that was undertaken in your circumstance lead to the problems that you’re having.

SG      That’s right. It’s very hard to know what happened when the particular dentist or whoever it is, orthodontist was doing the procedure and like orthopedic surgery, dentistry, there are many ways of doing the same thing and…..

CS       And techniques.

SG      Techniques and you know there are certain outcomes that are unwanted and some that are wanted. So really it very much depends on not just whether someone has suffered an injury, but whether that injury was as a result of someone’s incompetence. That’s really hard to know.

CS       Its is. Ah, you’ve been fantastic today. A debut on the Macquarie Radio Network, Sally Gleeson. Thank you so much for coming in and we’ll get you in again for sure.

SG      Pleasure.

CS       Great stuff. Sally Gleeson from Turner Freeman. Don’t forget, pick up your local newspaper, have a look for legal matters column and they cover a range of topics as they do right here each and every Tuesday afternoon.