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Sally Gleeson discusses medical negligence on the 2GB Deborah Knight Afternoon Show – 13 October 2020

Sally Gleeson providing Q & A on the 2GB Deborah Knight Afternoon Show discussing Medical Negligence – 13 October 2020

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

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Read the transcript below:

DK      If you’ve got a question call in now 131 873 and today on legal matters we’re talking medical negligence, it’s always a popular topic and we’ve got our $100 Westfield voucher to give away to the caller who asks the best question in the segment today 131 873 is the number to call. Sally Gleeson is a partner at Turner Freeman Lawyers and this is her field of expertise, she’s on the line for us now, Sally thanks for joining us. 

SG      Hi Deborah, thanks. 

DK      Now I wanted to ask you before we get to the questions because they always do come through on this topic, about the recent news out of Gulgong Hospital, now I spoke about it on the show yesterday, this 66 year old woman, tragic, she passed away after no doctors were physically present, they weren’t there, it was telehealth the way it was done and nurses treated her on site, how would this fall under the medical negligence issues, if someone’s care is managed poorly or they’re misdiagnosed because of telehealth, would there be a case for medical negligence here?

SG      Well, a lack of resources, a lack of funding, the circumstances leading to why a patient is treated by way of a video conference rather than a face to face conference is actually quite insignificant at law, you’ve got to be able to provide proper medical treatment and I’m not sure how you can do that under minimum requirements where doctors are physically present, for example between certain hours or certain weekdays and then patients are left to video conference with medical practitioners who are sometimes in another country. So when you do that of course you run the risk of putting patient’s lives at risk because doctors can’t properly consult with patients and diagnose them and in this case of this poor elderly woman who tragically passed away, to pick up an urgent condition, she had gastrointestinal bleeding and of course that couldn’t be picked up via a video conference with any priority or any urgency, if that occurs the law is clear, when you treat a patient you owe that patient arising out of the fact that the patient is your patient, a duty of care and your duty is to exercise reasonable professional skill and judgment, so a health care provider must provide treatment and advice that’s competent and if that treatment provider doesn’t do that and the treatment that they provide does not fall in accordance with the reasonable standard of care and there’s a loss then compensation is available to that person or their family member.

DK      And I know that the health minister, Brad Hazzard has launched an enquiry into that particular case but broadly speaking what about under staffing, in hospitals, whether it’s nurses or doctors, could that be considered medical negligence?

SG      It depends what the outcome or the result or the consequence of that lack of staffing or lack of resources is, so the standard at law is not the gold standard, we’re not holding doctors or health providers or health practitioners to a gold standard, we are human, humans are busy, we’re involved, it’s a complex system, people have different medical needs and not every case is easy, but the test at law is that of reasonableness, so you have to provide a service that is reasonable, appropriate, proper and competent. It’s not a very high standard, it’s just a reasonable standard, so not having enough resources, not having staffing, not having equipment unfortunately the law doesn’t appreciate or value that. In Australia we need to provide proper competent health services to everyone, regardless of who you are.

DK      Give us a call if you’ve got a question 131 873, Sally Gleeson is with us from Turner Freeman Lawyers, we’re looking at issues of medical negligence and they can occur in any setting, whether they’re in hospitals or in a doctor’s GP office, that is the case isn’t it Sally?

SG      That’s right, so I mean this topic that’s come to light in the news recently concerns the Western New South Wales Local Health District, it’s one of the largest local health districts in New South Wales. It delivers health services to an estimated population of about 276,000 people. Of course this region has some of the most vulnerable population in New South Wales, we have Australians in this region who generally have a lower socioeconomic status, they have a shorter life expectancy and they’ve got poorer health and so of all regions, this region can’t be compromised on its available health services, we must do better in these regions.

DK      And a genuine mistake, I mean you say the gold standard is not what we’re being held up here, but if a doctor, medical expert, makes a genuine error that can also be considered negligence can’t it.

SG      Absolutely, it’s not about intent, it’s not about recklessness, it’s not about doing something genuinely or disingenuinely it’s about negligence, which is a mistake that is caused by some time of negligence or error or misjudgement, so there doesn’t have to be, you don’t have to delve into someone’s mind frame although that is another type of law and it’s the law of criminal intent, battery tort assault, but by the standards of medical negligence you don’t have to show what the intention of that doctor is to bring a case, a successful case in medical negligence, all you need to prove is that there was an error and that error caused someone an injury.

DK      And lots of people when they do have queries about this issue about medical negligence, they might think, oh look this happened quite some time ago, I’ve got a niggling pain, you know I took a fall or I got a misdiagnosis and it stayed with me and it’s issue that happened some time ago, is there a time limit on when you can make a medical negligence claim.

SG      There is a time limit, it’s a more lax time limit than it was perhaps about 15 years ago, not to say that people need, you know can sit on their hands and let time pass, the law says that you need to bring a claim within three years of when a cause of action was discoverable. Discoverable meaning what a reasonable person would consider someone to have the knowledge sufficient enough to see a lawyer and bring a claim and also subjectively to the normal average person when it’s expected that they should have known that there might be a cause for legal concern to see a lawyer, so the bottom line of that is that if you suspect that there has been a medical error there’s no harm in speaking to a lawyer, it’s no cost, it’s no risk for the initial chat, we investigate the claim, if there’s nothing there then at least you know better and you’re enlightened and you can put some closure on the issue.

DK      13 to 2 to 1 in Queensland where talking legal matters with Sally Gleeson, a partner at Turner Freeman Lawyers, our focus today medical negligence, let’s get to some of your calls, Ron is first up, what did you want to know Ron today from Sally?

Caller No: 1    Ron 

C1       Well it’s a coincidence she’s on, it’s wonderful, it’s something I’ve been wanting to look into even further, I had trouble with an operation that went terribly wrong and then it went through the Health Care Commission and it should have been 28 days, 3 years it was still going and, umm, yeah and I’ve been wanting to get back to it but I’ve been preoccupied with other things cause I got involved with the reopening of the eye hospital at the Hunter Hospital, which I found was closed at the time and so I was on with that for a long time and one thing led to another and it’s got worse and worse.

DK      Okay, would there be a case there potentially for Ron, Sally?

SG      Hi, Ron, so has there been an outcome to the HCCC inquiry?

C1       No, no they just agreed to disagree, umm, yes that was the position, the result made, that the doctor involved in that, it’s still ongoing. I went back to the hospital, initially I went to the Prince Alfred Hospital and they…

DK      Well let’s see if Sally can give you some insights Ron into which way you might be able to go with this one, Sally?

SG      Yes absolutely, so Ron, I need obviously to know more about what happened and I;m happy to speak to you off air, we’ll take some details from you and I’ll give you some guidance as to whether there might be a legal case.

DK      Alright, stay on the line Ron, we’ll get your information. Mike, what did you want to know from Sally today?

Caller No: 2    Mike

C2       Yeah, hi Sally, first of all thanks for taking the call, just a question, my mother-in-law has got cancer and she’s been on the trial, she was on a trial for about 12 months and it was doing great and she went in for a check-up when they noticed that one of the growths, one of the tumours had grown, so she was removed from the trial and then she went back to the doctors and they did a biopsy and they found out that the growth was actually a pneumonia growth, but because she’s been removed off the trial she can no longer go back onto the trial, is that a common thing, is that negligence, is that, or is that bad luck.

SG      Well, I mean obviously, are we talking about your wife Mike, sorry I couldn’t hear you earlier.

DK      Mother-in-law.

SG      Mother-in-law, sorry, I mean it depends very much on the purpose of the trial, whether the trial was, had any hopes and what advice your mother-in-law was given about the trial and the purpose of the trial and what it was hopefully going to do for her condition, being removed off the trial is not uncommon, that’s the whole purpose and that’s the definition of the word by definition, it is a trial, so you try and then stop, and generally speaking there’s no guarantees of any success with any trial, it’s a resort or a last resort to try and alleviate or ameliorate the condition but there’s never any guarantees with success, so I really need to look at the details in relation to the trial and what your mother-in-law was told and then find out how her condition has developed since then and if there’s anything in it then I’m very happy to explore that further.

DK      Alright, again Mike stay on the line we’ll get your details, we’ll get to some more calls in just a moment, I’ve just been handed breaking news, the Queensland fire and emergency service, they’ve issued a prepare to leave warning and that is for a bush fire currently burning at Green Hills Road, it’s between Kooralbyn and Allandale west of the Gold Coast, water bombing aircraft are right now helping ground fire crews but authorities say that some private drones are actually hampering the air operations and these drones, they’re banned in areas where emergency services are operating, so it’s causing some dramas there, check the QFES social media pages to stay up to date and you can always call 000 immediately if you are under threat, but a prepare to leave warning has been issued for that bush fire burning at Green Hills Road at Allandale west of the Gold Coast. Alright, David, what was your question for Sally today?

Caller No: 3    David

C3       Hello.

DK      Hi, David. David are you there? Are you okay?

C3       Yeah, hello, I just dropped the phone.

DK      That’s okay, what was your question?

C3       Umm, two years ago I had a, they attempted to put a stent in the heart, umm, they went through the wrist and a wire broke off, a wire is still sticking out of my heart.

DK      Oh goodness.

SG      Is that still the situation David?

C3       It sure it is, yes.

SG      Okay, alright and obviously you’ve had some further advice about what can be done to explore removing the wire or is there nothing they can do?

C3       Well, they said that just leave it there.

SG      Okay, and sorry to ask all these questions David but it’s all about detail, are you still under the care of the cardiothoracic surgeon or the cardiologist?

C3       Yes I am, not  the one that did the stent, that put the stent in.

SG       Okay

C3       Yes, another cardiologist, yeah.

SG      Okay and is the wire still being in there causing you any issues or difficulties or what’s the risk with having it in there?

C3       Well, mentally it is, yeah.

SG      Yeah, I understand. Okay, so it happened two years ago, obviously the stenting was successful but you’ve got this other issue, I really need to talk to you David to explore what happened there and obviously it’s not standard or common practice, or something that happens in the usual practice of heart surgery, I need to understand what problems they ran into and why the problem that you have occurred, so I’m very happy to explore that with you further.

DK      Alright David, again we’ll get your details. Kathy what did you want to know from Sally today?

Caller No: 4    Kathy

C4       Yes, good afternoon, I just wanted to know, what is the limitation and how long you can actually take action against the hospital. Umm, I had an emergency cesare, ten years ago, my twins have just turned 9, the situation was I was advised because I was older and I was having twins but my previous three pregnancies which I was younger before I had the twins were perfect, going to hospital at 38 weeks to be checked in and then to be induced for no other reason than they think 38 weeks with twins is pretty good, I went to hospital everything was fine, I had no problems at all, when the female doctor did the sweep they said yep, go home, come back tomorrow morning we’ll induce you, let a little bit of blood out at home and suddenly back at hospital undergoing emergency cesare.

DK      So nine years later then Sally, we are up against the clock here, sorry to interrupt Kathy, but nine years later, would she still have an option there to investigate this further?

SG      Much harder, nine years later, did you know at the time Kathy that you were unhappy with the care that was given to you or there might have been a problem?

C4       I was very unhappy and ask about a …. I was mentally done with hospital and then my husband actually took me back to the hospital to speak to the head lady because I was having a lot of issues coping with suddenly being sent into emergency cesare and I was mentally…

DK      So that’s a yes I guess, Sally yeah.

SG      But sorry Kathy, the twins, they’ve been no complications as a result of the emergency cesare, you’re fine and the twins are fine?

C4       Well, we’re fine but I was a bit sick at the time.

SG      I understand, okay well it depends on, I have to talk to you about what you mean by sick, generally speaking if you’ve carried on with life, you’re back at work, it hasn’t impacted on you significantly, you have to have an injury that  causes you an impediment to your daily life.

DK      Well we might get Kathy’s details Sally and pass them over to you, we’re up against the clock so we’ll get follow up on that for you. Well done, thank you for that Sally.

SG      Thanks Deborah.

DK      And I think we’ll give David from Epping our $100 Westfield voucher who suffered that wire breaking off getting a stent. If you want to get in contact with Turner Freeman Lawyers, call them 13 43 63 or turnerfreeman.com.au.

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