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Sally Gleeson discussing Medical Negligence Law on 2GB

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

Tuesday,  30 April 2019

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

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CS         Medical negligence. Your chance to get some free legal advice. So jump on that open line quick smart 131 873. I’ve got a $100 Westfield voucher to give away to one of our callers as well. $100 Westfield voucher. When it comes to seeing a doctor or surgeon, it’s interesting when you think about the rights you have – if the prescription they’ve given you has adverse effects, they maybe misdiagnose you or something goes wrong during a procedure, what avenues exist to see you at the end of process compensated? And what if everything does go well but you weren’t actually informed by your doctor about what the procedure involved or the possible side effects connected to it? We’ll discuss this area and more in our Legal Matters Segment right now. 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 estates and property law. Sally Gleeson is a partner in the Turner Freeman office in Sydney and specialises in medical negligence litigation and she is with us right now.  Sally, thank you very much for coming in.

SG         Thanks Chris.

CS         What obligations do medical professionals have to properly inform their patients of their treatment option – what they involve and also of course the possible side effects?

SG         So every doctor, every medical practitioner has a duty to ensure that their patient properly understands the treatment that they recommend. So that doesn’t mean you just say – I think you should have this done and I think you should have it done on this date and you will be right as rain. It’s about sitting down with the patient, talking it through, explaining all facets of the treatment including the risks whether those risks might come home; what other options they may have; whether the treatment is a treatment that needs to happen now; whether it can be postponed and the actual material risks associated with that particular treatment or procedure so that the patient has a proper and informed understanding of what they are about to undergo.

CS         So if they fully inform their patient of all of that and something goes wrong, are the medical professionals wiped of any responsibility?

SG         It depends on how it went wrong. So it depends on whether it went wrong because of the technique employed by the medical practitioner and that’s a different point to being properly informed.  But if it didn’t go wrong and it’s the materialisation of an inherent risk that the medical practitioner explains very clearly to the patient and informed them; gave the patient the option; talked it through and make sure that the patient understood, then obviously the doctor is covered.  Sometimes things go wrong and that is something that can’t be helped by any doctor let alone…….

CS         Okay.  Let me put this hypothetical to you – I go into to have a procedure tomorrow; they tell me exactly what it’s involved and then I get a staph infection – which is not common but frequent in hospitals around Australia – some hospitals more than others. If I get a staph infection – it caused me another 2 months off work; it puts me down; I’ve got to get medication etc and it keeps me in hospital, do I have any reply to that and do I have access to compensation?

SG         So when a procedure is done. It’s got to be done properly and it’s got to be done in a sterile environment and you’ve got to employ practices that minimise infections and you have to employ practices that ensure that the risk of infection to a patient are minimal. If all that is done, then the doctor has done his or her job and then they’re discharged to the hospital and the hospital staff and the nursing staff and the employed doctors and then those doctors must continue those infection control practices. Ensure that the environment is clean; the patient is treated in a manner so that infection is minimised. Now, if all of that is done and it’s done properly and the clinical notes indicate that and normally there is a trail of evidence about how that’s done.  Sometimes infections happen and that is again the materialisation of inherent risk. So, it depends on the type of infection; it depends whether the records indicate that the right thing was done and it’s really on a case by case basis. But sometimes infection can be avoided and should be avoided.

CS         Alright, so what about the patients. Even if a medical profession is deemed not responsible for something that has gone wrong – are they still able to access compo?

SG         Yes – absolutely. So what I wanted to explain today is that a patient has rights. A patient is not in any way bound by treatment recommended by a doctor. When a patient is told – Listen you need a certain form of treatment. It’s got to be remembered that unless it is an emergency treatment, that patient has a choice and should exercise that choice and that part of that choice involves being informed and understanding exactly what you’re in for. So a patient should ask all the right questions – that doesn’t absolve the doctor of his or her duty but in order to mitigate any potential loss or any potential miscommunication that the patient may receive, it’s really important that the patient asks the right questions and there are a series of questions that the patient can put to his or her doctor to understand exactly what they’re getting themselves into.

CS         Alright what about someone with dementia or developmental disorder – you’ve got to have say a carer with you to give consent to what goes on?

SG         Absolutely.

CS         Right.

SG         So a patient without legal capacity cannot give consent. The consent has to be informed; it’s got to be understood. So the consent has to be derived through that person’s carer, legal guardian.

CS         I understand you have a case study related to this subject.

SG         I do. So, I wanted to share a story of one of my clients. Obviously it’s a confidential story and it will remain anonymous. But, one of my clients had a doctor perform a procedure on her – which was inherently a dangerous procedure. However, the procedure wasn’t an urgent procedure and there were more safe alternatives; and it was a really tricky complex risky procedure. So, she had an abnormality called a fistula – which is an abnormal connection between an artery and a vein and it was in her sinus region – so in her brain – a really tricky area of the human body and it caused her to suffer from tinnitus, so loss of hearing, a loud noise in her ear; nothing urgent – but it’s happening for many many months and she saw a doctor.  He said it was a benign condition and not associated with anything sinister and she didn’t require anything urgent. So the doctor recommended a particular procedure and it was high risk and what he proposed that a type of glue was injected into the fistula to block it – to clog it up.

CS         Yeah.

SG         And the risk of the procedure which was high risk, even if it was unlikely to occur, with high risk if it did occur, was that this glue if it strayed or refluxed or went into the wrong area, it would block the arteries that supplied the nerve and the brain leading to the facial nerve. And so that wasn’t communicated to her; that the allegation was it wasn’t communicated to her; she wasn’t told. She was told – listen, this is the procedure; it shouldn’t go wrong and you will be right as rain after the procedure is done. 

CS         And did the doctor or the surgeon tell you and tell his legal people that he did in fact do that?

SG         So; Of course. So the defence is that that was told and the defence……….

CS         He says he did and she says….. you didn’t

SG         He didn’t. And what ended up happening of course is that glue did stray and she ended up with facial nerve palsy which is a paralysis on one side of her face – a catastrophic disability.  And so, I’m not saying that the doctor has discharged his duty in this case and the allegation is not that – but by sitting down with your doctor and asking some basic questions – it gives you the power and the knowledge to perhaps make an alternate decision.

CS         Yeah – yeah.

SG         And that’s really what patients should do. They should arm themselves with that knowledge.

CS         Yes absolutely. That’s really good advice. I want to get to callers. I’ll do that straight after a break. 131 873 is the telephone number. Legal Mattes with Turner Freeman – I’ve got a $100 Westfield voucher for one of our callers in the next 5 to 10 minutes.  It is ……… 13 minutes to 2:00 o’clock.

Turner Freeman’s Legal Matters Segment – 131 873 – by the way if you want to contact Turner Freeman directly – 13 43 63 – you can go to their website to turnerfreeman.com.au. John in Camden go right ahead. Sally is listening.

Caller 1 –  John

John      So look……….. I’m not interested in compensation or anything. I’m just wondering when the rules came into place as far as the doctors are to inform you because many many years ago – I was a 20 year old – I had a head injury and the doctor told me that there was a short circuit there – they had to put me to sleep – they were going to give me a – ah – experiment with some drugs to find out what was going short circuit the short circuit. What he didn’t tell me was they were going to keep me in a semi-comatose state for 2 weeks – apply me with hallucinogenic drugs  – there was TB in one of them and I was going to be strapped to the bed for 2 weeks and I was going to cop ECT every second night. Now, I had 7 doses of that – I was unaware of all of that and you can imagine – you know the doctor hadn’t told me and I mean who in their right mind would accept that sort of treatment if they were told? 

CS         What century was this John?

John      That was the Chelmsford Inquiry.

CS         Yeah.

John                The Chelmsford. Now – in Chelmsford no-one can hear you scream and that what it was like…. Now it was pretty – pretty horrendous mate. I mean I was 20 years old – I was a kid and I was totally unaware of that. And I’m not interested in compensation – I’ve let it go – As long as I don’t watch that movie – “One Flew Over the Cuckoo’s Nest” – I’m fine.

SG         Yes. I mean but the question that you asked me is how long has the law been around in that regard.  It’s been around since the law of medical negligence evolved. You’ve got a fundamental right as a patient to know and make the decisions regarding your treatment – it’s your body – so it’s your autonomy and that’s your basic and fundamental human and legal right.  So luckily you’ve moved on and that is the best outcome for you. But obviously if you weren’t informed – you had a right to be informed.

CS       Yeah. John – good to get your call. Everything ok?

John   Oh yeah –it’s fine.

CS       Yeah – good to get your call.

John   I’m not a snowflake. You get over that stuff.

CS       Yeah, great stuff. Good on you mate. Thank you. Another John this time. Hi John.

Caller 2 – John

John    Good afternoon Chris. Thank you for taking my call.

CS       It’s okay.

John    Ahh strange story.  2012 diagnosed with prostate cancer. I undertook a course of treatment with a professor which resulted in the implantation of radioactive seeds directly into the prostate gland. 12 months later I was told the prostate gland had dissipated or disappeared as a result of the radioactivity. And was told that the cancer is gone – see you later. The proviso was that I was to have what’s called a PSA test every 12 months to make sure that everything was okay. 6 years later no PSA test done although during that period of time under a GP I had regular blood tests because I was on anticoagulant to make sure that the blood was sustained at certain levels and not once did the GP request a PSA. PSA came back in March of last year with a reading of 880.

CS         Whoa…

John      Yes.  

CS         It’s back. 

John      Yes – I had Stage 4 terminal cancer. It has gone from the prostate gland into the bones and travelled up the spine across the shoulders and down both legs. I have probably 8 to 10 years to live they are saying. I have undergone chemo and radiotherapy. It appears at this stage it’s stopped the spread but unfortunately it’s there. I was of the opinion for what it’s worth Sally that because the initial procedure took place over that period of time and the statutory limitation was 6 years but listening to your previous caller, it appears as though there is no real statute of limitation in respect to medical practice. I’m not looking for compensation. But it’s one of those things that I feel the average person doesn’t know the ramifications if they don’t follow those instructions or request instructions by doctors.

SG         John.  Sorry to hear of what’s happened to you and there is no statute of limitations – as in there’s no strict statute of limitations – so it is 3 years from when you discover it that something wrong has been done. So you are well within time. I wanted to ask you very quickly because I don’t have much time left, did you know that the PSA test was requested to be performed every 12 months or did you only just find out?

 

John      No. I did – but obviously when it was diagnosed again in March of last year.  It was then I thought well hang on a minute – I’ve had a pile of blood tests, why didn’t a PSA get done there?

SG         So you found out after the event rather than before the 6 years.

John      Yes – 6 years later.

SG         Yes I understand – I’m very sorry to hear that. 

CS         You might want to talk to Sally just briefly off air – that might be a way to go John. I’ve got the $100 Westfield voucher for you – a very very small consolation but thank you very much for raising this today and even your story has taught other people about what their own responsibilities are as patients. Sally Gleeson – thank you very much for your time.

SG         Thanks Chris – see you next time.

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