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Sally Gleeson discusses Medical Negligence on 2GB – 28 April 2020

Sally Gleeson providing Q & A on the 2GB Deborah Knight Afternoon Show discussing "Medical Negligence" 28 April 2020

Tuesday 28 April 2020


DK – Deborah Knight / SG – Sally Gleeson –   C1,2,3, etc – Callers 


DK      Now elective surgery is getting back under way this week after being suspended because of Coronavirus, but what about the issues of elective surgery when it’s postponed? You might be living with a lot of pain, a lot of discomfort, and you might not know when your procedure might actually get under way. Well, that’s the focus of legal matters today. If you’ve got a question, give us a call on 131 873, and as always we’ve got our $100 Westfield voucher for the best question. Sally Gleeson is a partner in the Turner Freeman Sydney office and she does specialise in this field, in medical negligence litigation, and she’s on the line with us now. Sally, hi, good to talk to you. Good to see elective surgery is up and running again.

SG      Hi Deborah. Yes, so the government this week has started to lift the ban on elective surgery. The ban of course as we know occurred in March and it’s been eased or lifted on certain procedures this week, and obviously that will continue. All Category 1 elective surgeries will resume, all Category 2 procedures and some Category 3 procedures, as I understand it.

DK      And does the whole Coronavirus crisis, the pandemic, does it change any of the definitions when it comes to what constitutes medical negligence?

SG      No, not at all. The law is the law, it’s based on a long standing precedent history, a long standing statute history. The law obviously develops and evolves over time and new cases make new laws, but essentially the law of medical negligence is the same, with nuances that develop over the years. It’s based on three essential principles, a doctor, or a treatment provider or health professional has to actually make a mistake. There’s got to be what’s called a breach of duty of care, so that’s the mistake, there’s got to be a connection between that mistake and an injury or some type of damage that a person has suffered. And lastly, there’s got to be damage, and that damage has to be permanent, it has to be long lasting, it can’t be a transient or temporary thing, it’s got to be something that’s there forever and causes someone a multitude of issues.

DK      Hmm. Good to know that that is definitely still the case. Karen’s going to kick off our questions for you today on the Central Coast. Hi Karen.

C1       Hi Deb. Hi Sally. I’ve got a legal mediation in two weeks’ time for medical negligence. What I’d like to know is, firstly, is it better to make a claim on the day, and secondly, if we do, how long does it take before the funds get sent through to me?

SG      OK, so your question depends on your case. It’s really hard to give advice about a mediation that’s happening in two weeks when I know nothing about your case. I’m presuming you’ve got lawyers and those lawyers are giving you advice, and they should be giving you full and comprehensive advice, particularly if you have a mediation coming up in two weeks. But generally, the purpose of a mediation is to avoid having  judge, who is an independent arbitrator, someone who makes a decision that is full and final, you can’t change that decision, he or she will make a decision that impacts on your case once and for all, subject to appeal of course. The whole point of mediation is to give you, Karen, control to remove anyone else’s control but yours and to ascertain whether you can resolve the matter in an atmosphere where discussions are had between you, your legal representatives and the other legal representatives to see whether you can have some assurity or control over the conclusion of your matter by way of a settlement. A sum of money that ends your case, that’s the whole point of a mediation.

DK      And does it take long, Sally, between settlement and getting access to the money if you do win the case?

SG      In a stock standard case where a person doesn’t have any incapacity issues, so not a child or someone with a brain injury, it takes about a month, depending on the settlement terms from when all the clearances are obtained. Standard clearances, yet again Karen has really got to be explained to you by your lawyer, but standard clearances need to be obtained from departmental authorities, Medicare and Centrelink, and it takes about 28 days from the conclusion of those clearances. If it’s in relation to someone who has an incapacity, for example a child, that money doesn’t go to that child, that money goes into a trustee, so it very much depends on the circumstances of the case.

DK      Alright. Hope that helps Karen. 131873 if you’ve got a question for Sally Gleeson from Turner Freeman Lawyers. Free legal advice effectively, we do it every Tuesday and we’ve got our $100 Westfield voucher to give away to the best caller. I wanted to ask you too, Sally, we’ve seen a lot of the aged care homes in the news with cases and deaths of residents, some of them contracting Coronavirus from health care workers.  Would that be considered medically negligent?

SG      Again, it depends on the circumstances Deborah. It’s really hard to give advice but generally speaking, when it comes to infection control, and infection control protocol and policies, you know, that’s something that hospitals state, and it’s a key issue for hospitals, particularly with this pandemic as it evolves, and we know that for example you mentioned aged care facilities, we know for example a person died in Tamworth Hospital after contracting the virus, so its something that is happening. This is an unprecedented virus, and protocols and policies in relation to infection prevention and spread of infection have been developed to cater for the virus. And they are of course assessed daily to formulate the best possible prevention plans. Now if someone in an aged care facility acquired Coronavirus, we have to look at the aged care facility, what the circumstances where, how they came into contact with a patient or provider who had the virus, and whether that aged care facility had in place proper infection control practices to best safe guard that person’s interests and to protect them against infection. As I said, every case must be considered on its own individual merits. But the fact that we have Coronavirus, it’s novel, it’s scary, it’s not something we’ve faced before, it doesn’t absolve health care providers from doing what they should do pursuant to the law.

DK      Alright we’ll take a quick break, then take more of your calls. 131873 is the number. We’re speaking with Sally Gleeson from Turner Freeman Lawyers, if you’ve got a question specifically to do with medical negligence, now is your time, give us a bell, we’ll have more right after this.

DK      Nine minutes to two, if you’ve got a legal question, give us a call now. 131873 is the number to call. Sally Gleeson is with us from Turner Freeman Lawyers taking your questions. Anything to do with medical negligence, and you might have a question where you’ve thought, oh I wouldn’t mind the answer to that, but you haven’t been able to fork out for a lawyer, well she’s here for free giving you advice today, so give us a bell on 131873. We have an email through, Sally, from Susan in Kellyville, she says her 8 year old son has a broken arm, but when they went to the doctor, the doctor said there was nothing wrong, just a bruise. What are the options for Susan in that regard, Sally?

SG      That happens more often than we like. It depends very much as I said, one of the three legal principles are that the doctor mis-diagnosed, which seems to have occurred here, mis-diagnosed the broken arm as a bruised arm, so this diagnosis caused Susan’s son an additional injury, and that injury is long lasting. It’s not enough unfortunately that there’s been a mis-diagnosis, if for example, the day following the mis-diagnosis, Susan’s son was treated by a doctor who did the right thing, it was treated instantly and he’s on the road to recovery and will have injuries or disabilities that will, in time, resolve. But if for example the delay was significant, and during that period of time during which the delay occurred, a recourse or rectification surgery that otherwise would have occurred can’t occur, or the impact of that surgery is different because of the delay, and Susan’s son has an injury now that would have otherwise been avoided then he definitely has a recourse to compensation.

DG      Alright that is good news.

SG      So it depends again on the circumstances of that case.

DG      Sam’s called through too, what’s your question?

C2       Oh hi. If you go to a GP and you get referred to a specialist, and you end up doing an evasive procedure and it turns out it was unnecessary, who would be liable, the GP or the specialist.

SG      Sam, hi it’s Sally. Well your GP, he or she has done the right thing by referring you off to a specialist. I assume that the evasive procedure was done by the specialist and not the GP upon the recommendation of the specialist who would have, or should have, given you advice about the procedure, the risks, the benefits, the possible complications, the side effects, the long term impact, and if the specialist is the person who conducted the evasive procedure, which you now say is unnecessary, then of course the specialist’s actions need to be investigated.  So ordinarily, based on that type of scenario and flowchart it would be the specialist.

DK      Alright, there you go Sam, hope that helps. We are out of time Sally, but thank you so much for joining us.

SG      Thanks Deborah, talk to you next time.

DK      Sally Gleeson there from Turner Freeman Lawyers. If you need legal advice you can go to Their number is 13 43 63.  I think we’ll give our voucher to Karen who called in earlier about the mediation, our $100 Westfield voucher that we give away every week for the best caller with a Turner Freeman legal matters segment.