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Sally Gleeson discussing medical negligence law (Tuesday, 19 March 2019)

Sally Gleeson providing Q & A on the 2GB Chris Smith Afternoon Show discussing Medical Negligence Law

Tuesday, 19 March 2019


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



CS         I wonder if you have ever found yourself unhappy with your doctor, perhaps they gave you incorrect information about something maybe prescribed you with the wrong medication or may be got the diagnosis wrong or not informed you of side effects of a particular medication and while sometimes the consequences are not usually huge these mistakes by doctors and cause serious health problems. In some instances, they can lead to death. So what is the procedure to follow if you want to put in a complaint about a doctor. I wonder whether you done that and you can tell us how the process went that would quite instructive on this topic. What channels and avenues are available to you? Are you listen to? Is it an easy process or is to tough? We will discuss this and more in our legal matter segment today, if you have a question jump on right away, first in always best dressed 131873. 131873 and as always I have a $100 Westfield voucher to give away to one of our callers today. One of better questions through our medical negligence segment on legal matter. Turner Freeman Lawyers provide a range of specialised legal services including compensation and negligence law, asbestos litigation, superannuation and disability claims, employment law, wills and estate and also property law but they are all yours and free today. Sally Gleeson is a partner in the Turner Freeman Sydney office and Sally specialises in medical negligence litigation. We don’t need to fix your comments or your questions on complaints, we do want to cover that subject today, but if it is anything to do with medical negligence and you have a question and if you want free learned advice this is the place to get it but do it sooner rather than later. 131873 because it is too often that we have people left on board when the segment is over. Sally Gleeson it is good to have you in the program.

SG       Thanks Chris.

CS         Thank you to come in again and now Sally in the eyes of the law what is the difference between an honest mistake and an outright medical negligence. Because you can make honest mistakes in life.

SG         Most medical negligence mistakes are honest mistakes. That is why we have a system that provides compensation to victims of honest mistakes. So negligence does not imply or intend or meaning to do the wrong thing on the part of a medical practitioner or doctor. It is exactly what the word means, negligence. So in appropriate care, unreasonable care, care that was provided in an environment where the doctor should adhere to alternate practice and that caused someone an injury that should have been avoided.

CS         I want to take Theresa’s call because she has got in first this afternoon, she has been through the process. Go ahead Theresa.

Caller 1 –  Theresa

Theresa: Thank you, I will give the incident, the background and then I will talk about how I tried to handle the complaint. My mother lived in a nursing home. She apparently fell out of her wheelchair, she fractured her left forearm and she has a whopper of a black eye over the left eye socket. She was left for 5 days without any medical care and her GP came twice to see her. So that is the background. I have then set about doing a complaint to the NSW Health Care Complaints Commission it took 5 months for that complaint to reach a stage where I got an answer that said that your complaint has gone to the Medical Council of NSW. At which stage and 6 weeks went by and they came back and said it was acceptable for the doctor to miss the diagnosis, to miss the fractured arm, but it was unacceptable for him to prescribe a topical gel, I use the brand Voltaren Gel. I could not understand that. It was beyond my comprehension that a doctor, that a GP can come on 2 visits, he is told by the nursing staff that my mother was screaming in pain when the arm was being handled when basically when she was being moved.  Eventually I appeared 5 days later obviously and I asked my mother to do a little exercise for me and I went to the nurses station and said we are going to the hospital now and at the hospital of course the x-ray proved that there was a fracture and the doctor was very concerned that my mother had been left for 5 days with a black eye. He said that there could have been bleeding inside. She would have died. Now where do we stand when the Medical Council of NSW says it is alright for a GP to miss a diagnosis.

SG         Thanks Theresa for your question. Lucky the Medical Council and their findings and independent review that they conduct whatever opinion they perjure a general practitioner or whoever has no bearing on whether your mother has a legal case. So the standards they apply for the purpose of the disciplinary proceedings differ from the standards that are applied at law in a claim for compensation and pertaining to the laws of negligence.

Theresa Agree

SG         So separate to what they have done which you have little impact on and there is not much you can do. You have the power when it comes to or your mother has the power or you on her behalf has the power in a medical negligence case. So from what you have described to me it is beyond belief that is what had happened to your mother. She is in a nursing home, she deserves and should be getting the best possible treatment, they have a standard to adhere to and they have a duty of care. When an elderly person falls out of a wheelchair they have to conduct thorough tests to ensure that person meets all the heath standards and if more and thorough investigation was done. If your mother was investigated if her complaints where adhere to she would have been taken for testing investigation and would of have and probably in the likelihood discover the fracture and any issue with her left eye socket. As you say, it would have eliminated something more sinister. Definitely it is something I am happy to discuss with you and there are other steps you or your mother can take to ascertain whether more can be done.

CS         Let’s leave it there because Theresa probably needs to deal with you in greater detail. So Theresa I will put you back to our switch and we will get your contacts and hopefully Sally can get you through the next process. What are the process, what is available to someone who wants to lodge a complaint against a doctor.

SG         To lodge a complaint against a doctor as Theresa discussed the steps she has taken is exactly what you do. The first thing you do is lodge a complaint with the NSW Health Care Complaints Commission, you go to their website and there is a toolbar that prompts you to complaint and the process becomes self-explanatory. The complaint is then considered, investigated and the heath care complaints commission in conjunction with the relevant board reach a conclusion about the complaint.

CS       Do you have to go to Court prior to this?

SG      No, none of that. That is the whole purpose of the process is to not go to Court and from there action is taken by the applicable tribunal by way of sanctions, penalties and so forth. So that is a total different process as to what I do as a medical negligence lawyer. I offer people compensation, that process does not offer any compensation these are disciplinary proceedings against the medical practitioner. It is another way of ventilating a complaint.

CS       And how long does that process take?

SG      However long it needs to take. It can take 3 to 6 months.  

CS       I have to take a break and we will come back after that we will take more calls in our legal matter segment. Thanks to Turner Freeman. The Turner Freeman website is simply its number 134363. Ok back to our legal matter segment we are talking medical negligence and I want to take Connie’s call if I may. Connie go ahead.

Caller 2 – Connie

Connie Good afternoon Chris, I have got a bit query, my mother had a brain tumour back in 2010 removed at the frontal lobe. Now after the operation, naively I thought everything will be back to normal. After a year or so, I was bumping into issues behaviour wise with her. I have been complaining to the doctors and the doctors would say to me there is nothing we can do. There is nothing we can do about her behaviour. Up until 2 years ago roughly we got put in contact with a neurodoctor and I told him what my issues were and he actually then sat with me and explained that mum’s frontal lobe has been damaged and that is why behaviour has been irrational at time, so I was just wondering why this was not explained to me previously and is there a case to peruse.

SG      Hi Connie, Its Sally. What you say is something I hear all the time from my clients. All they really want is to have information provided to them and have things that pertain to their health explained to them clearly. So the frustration that you feel is mirrored by many others that come and see me. So I obviously do not know the circumstances surrounding the brain tumour removal, but neurosurgery and surgery to the brain is very complex and it is a very involved process, it has risks and complications potentially and the neurosurgeon should have sat down with you and your mother and explain the process in detail.

Connie  That ever happened.

SG         Ok, so that is something that obviously should have happened and that us why you are feeling what you are feeling and that is why you have no knowledge of the potential risks or complications of the surgery.

Connie  What was happening is, I was telling them that I needed help with her behaviour and her GP actually instead of dealing with the issue with mum behaviour she decided to deal with me.  She ended up dragging me down to the mental health centre which was humiliating in itself.

SG         Absolutely and that is the frustrating part. Now you have got a new doctor that has explained to you what happens when the frontal lobe of the brain is operated on, there is always a side effect and always a potential risk and complication in causing damage that is coincidental or invariant in the removal of the tumour. So whether you mother has a negligence claim because of the procedure is a separate issue to the lack of information that was given to you and it certainly something I can talk to you and explain to you about.

Connie  Ok.

CS         Stay there Connie, we will get you some numbers and try and make something happen for you. Ibrahim from Oran Park. Go ahead Ibrahim.

Caller 3 – Ibrahim

Ibrahim Hello, Chris and Sally. 

CS       Hello.

SG      Hello. How are you?

Ibrahim Very well thank you. I went to the doctor because I had severe injury and I had lower back pain that restricted my movement. The doctor suggested that I have a CT scan and the results of the CT scan just said that you have no damage no nothing. Subsequently the pain persisted for about another few months and then the doctor referred me to another test and did a MRI and that said yes same establishment yes you have you do have, there is no damage. I went back to the radiology and I said could I get the letter from you that the first CT Scan is not reliable and they refused to give me that.

SG      Ok and what is the treatment for you now. What treatment will be given to you now Ibrahim for your back.

Ibrahim I took medication and I had a cortisone injection in my back.

SG      So you are entitled to the CT scan, you are entitled to the report and the result of the CT scan. You can’t refuse to give that to you.

CS       If they have refused, why would they do that.

SG      They can’t refuse to give it to you and you are entitled to it under the health and privacy act. You are entitled to your records as long as the records are the property of the radiology place. But with your consent they have to give it to you as long as you make reasonable payment for the release of that CT report. So you should be writing to them and saying that I am entitled to it and I should receive a copy and I am requesting a copy under the legalisation and I am happy to explain that to you off air and explain the process. You have a look at that CT report and you see what that CT report says and then if you think that diagnosis was missed either through misreporting then it something that is discuss and I can talk to you about that.

CS       To help you with any kind of price for the CT report I have got the $100 voucher Ibrahim.

Ibrahim Thank you very much.

CS       Westfield voucher goes to you. Well done. Stay right there and we can make your life even happier after all of that. Can we fit in Adam.

Caller 4 – Adam         

CS       Adam, very quickly, go ahead.

Adam  good afternoon Chris, thank you for taking my call.

CS       Good, we only have a minute and half.

Adam I lodged a formal complaint with the NSW Heath Care and Complaints Commission regarding a medical practitioner. They supplied that medical practitioner with my complaint submission. He lodged a defence submission which they have determined not to peruse the matter, however they declared his defence submission private and confidential and will not release it to me to anyone else to be able to validate the accuracy.

CS:      Is that even fair?

SG      It depends Adam, on where the matter was at. Did the Health Care Complains Commission decide to take the matter on against him or where proceedings in place or was it done informally before proceedings were issued.

Adam I lodged my submission and they advised that they would supply it and get a submission back to him and proceed with looking into it and then I got a response saying that they have looked into it but they have made a determination and they can’t tell me what the determination is and they cannot supply a copy of the submissions because he is required to be private and confidential.

SG       And you would like a copy of that.

Adam  Absolutely.

SG      There is many when that has happened and there are ways of obtaining a copy what you need to do is make you submissions and obviously that is something I can assist with.

CS       Ok, Adam let’s put you in contact with Sally to make that happen and you can get the documentation by the sound of it you deserve. I have ran out of time. Sally Gleeson always good to have you.

SG       Thanks Chris.

CS       Sally Gleeson from Turner Freeman, Turner Freeman 134363.