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Sally Gleeson discussing medical negligence law

Stillborn baby mistakenly cremated instead of buried at Royal North Shore Hospital

Tuesday, 7 September 2016 


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


CS       Yeah our Turner Freeman Legal Matters Segment – the one that we usually get inundated calls on – so if you want to jump in, I suggest you do it earlier rather than later and if you’ve got a question on medical law or medical negligence, a case for compensation you think you might possibly have a go for – 131 873 is the telephone number – and it comes on a day when we have been referring to one of those catastrophic errors at Bankstown Lidcombe Hospital earlier on in the year – and today the parents of newborn baby girl, Amelia – who survived the nitrous oxide gassing – one little boy did not and she has irreversible brain damage this poor little girl – they have released a statement through their lawyer – their parents – the girl’s parents Daniel and Baneesh Khan – they’ve obviously indicated that they are devastated – they are traumatised. There are legal options available to give them some assistance in the situation and sadly this isn’t the only medical mistake that’s happened recently – a second –  a stillborn baby has been mistakenly cremated instead of buried at Royal North Shore Hospital – we read about that over the weekend and it’s just an awful outcome and people are in their grief trying to work out whether there’s some way of mitigating the grief by some kind of compensation and in many cases there are not, but we’ll talk a little further about this in just a short moment. Thanks to Turner Freeman Lawyers and the Legal Matters Segment, we’ve got a $100 Westfield Voucher to give away once again to one of our callers and don’t forget Turner Freeman Lawyers provide a range of specialised legal services including compensation and negligence law, asbestos litigation, superannuation and disability claims, family and employment law, Wills and estate and property law as well. New South Wales offices are in Sydney, Parramatta, Campbelltown, Penrith, Newcastle, the Gong (Wollongong) and they’ve also got offices in Queensland, South Australia and WA. Sally Gleeson is the expert at Turner Freeman on medical negligence and she joins me in the studio right now. Sally. Welcome once again.

SG      Thanks Chris.

CS       Good to have you here. 131 873 the telephone number. Before we go to calls, Danielle and Baneesh Khan – the parents of this poor girl, Amelia. They’ve released their feelings and intentions in this statement – their daughter now has – according to them – irreversible brain damage – I noticed the Premier of NSW today saying that “we will do all we can“. When you hear politicians say “we will do all we can“,  you know more than anyone else that there is a limit on what they are prepared to do right down the track right?

SG      Correct. Yes.

CS       So in this case, there would be lawyers for the Government working at exactly what this family could receive, but they’ve also got to be careful about how much money they give to the family – that’s still very much on top of their mind.

SG      That’s right – I mean there is a law in place to compensate anyone with an injury that’s caused by someone else’s negligence and lawyers get into battle once these matters are investigated and…..

CS       It’s not Mike Baird who will be doing the negotiation…..

SG      No – it will be the lawyers – it will be the insurance company giving instructions to the lawyers on behalf of the hospital.  And so it will become like any legal case unfortunately with the restrictions on limitations and a good lawyer will run the case to the end and do the right thing by the family and the baby and the opposition will defend the case to the very end.

CS       They’ve done all they can to virtually admit guilt – the Government – by suspending a number of people after – or both before and after a review – so what could be the kind of money that this family receives?

SG      Babies – we know that babies do well – even babies with very bad injuries – traumatic brain injuries in this case – you really need to wait and see how the baby recovers over the years and these cases can’t really be assessed properly until the baby reaches her early primary school years because really then you could can see the baby and how she will in the future – in all likelihood develop as an adult.

CS       But the Government might argue – well here is some money in the interim – but we will work out what goes on in 6 years time.

SG      The Government may try and do that – give – I mean this baby needs all the treatment she needs – she needs to get better and we know that when someone is injured at a very young age, in the past cases were deferred until the baby became an adult but we now know that babies need all the treatment that they should receive now to recover, get better and get all the rehabilitation that they require so that their chances of a full recovery which will in all likelihood will not occur here to the full extent….but maximised.

CS       Yeah.

SG      So the Government choose to give an interim payment but the little baby’s full rights to compensation will not be known for several years to come.

CS       But if there’s a lifetime of medical costs for Danielle and Baneesh Khan, will the Government be liable to pay a lifetime of medical costs or will it be somewhere in between?

SG      That’s the whole purpose of a compensation case.  If you have evidence supporting the cause for this baby needing a lifetime of medication, that’s a claim that’s made – the Government will be liable to a greater extent to compensate the family for that.

CS       And yet on the other hand – and as I mentioned a second stillborn baby has been mistakenly cremated instead of buried at Royal North Shore Hospital – what can be done for them?

SG      Well this is a simple case of procedures gone wrong. It’s a catastrophic administration error. Now that stillborn baby I hear and I read, had parents that wanted to investigate why the baby was stillborn? They wanted to take advantage of the investigation process that the law allowed and they have been deprived of that opportunity – so moving forward for that family that may have implications legally – in the sense that how do they move forward not knowing what happened to their baby – with future pregnancies – you know with future planning for their babies.  So it really depends on their circumstances.

CS       They’ve got enough decent reason for their complaints I would have thought. 131873. Let’s go to our callers. Robert. Sally is listening.

Hey Robert you’ve got to turn off your radio thank you mate because you are 7 seconds behind  – so turn your radio off and the Sally can hear what you’ve got to say and your question – go right ahead Rob.

Caller 1 – Robert

Robert                        Hello

CS       Go ahead Rob – turn your radio off mate.

Robert                        Hang on mate. Hang on.

CS       Okay – we’ll come back to you in a little while – 131873. Sarah – go right ahead.

Caller 2 – Sarah 

Sarah              Thank you – Look it’s very inconsequential compared to those other cases that you are discussing with ……… it is incredibly tragic – but I was in hospital last year with varicose vein removal in my legs – quite a minor procedure but it turned out sort of 3 or 4 days later that my wound site was incredibly infected and subsequent diagnosis was that an infection occurred on the table – I was re-admitted to a public hospital – but it was a private operation – I was re-admitted into a private hospital over Easter last year – but the care was beyond appalling – just disgraceful – I was in hospital for about 5 or 6 days with barely any care – barely – and I was then released – and then suffered 3 or  weeks of still incredible pain and you know – long term – still constant kind of nerve jangly kind of pain even a year after the operation and I’m just – I never thought about doing anything about it because my surgeon – as much as he was a lovely guy – I mean he was lovely – but there was a major – I don’t know how…….. and I’ve asked him how did it get infected on the table? Would that be from instruments or germs or like how do you – and you know they had to drain the infection – it was revolting but I was wondering whether there was anything I could do?

SG      Hi Sarah. The thing about an infection and it is highly overrated in my view is when you go into a hospital you have open surgery – you’ve got an open site – you’re always prone to infection – we know that – it is a recognised risk of any type of surgery – but the thing about an infection or preventing an infection is you have to exercise – hospitals/doctors – due diligence in ensuring that if there is an infection that it’s acted upon quickly – So if you do have an infection then there is a treatment plan that needs to be instituted to ensure that the infection is kept under control.  So if your infection was not kept under control and you’ve suffered as a consequence – as you say a neurological neuropathic injury, then definitely something that I can help you with, because it does as we know have long term consequences, pain, neuropathic pain, it goes on and sometimes dissipates and scarring. So yes, it depends on the circumstances and it depends on whether they treated your infection properly and adequately.

CS       So Sarah – why don’t we put you back to Gabriella and we’ll give you all the contact numbers you need for Sally – but that sounds like she may have a case to be pursued there.  Kurt – go right ahead.

Caller 3 – Kurt

Kurt              Oh hi sir.

CS       Hi.

Kurt                I have hurt myself at work one time ages and ages ago and I didn’t realise I came close to breaking my neck. These days I’m starting to lose use of one of my arms and am distinctly incapable of doing any job that I’ve been trained for and I’m just slopping around on the dole getting shunted around.

SG      Hi Kurt.

Kurt                Hi

SG      How long ago did this happen that you hurt yourself at work?

Kurt   .Around about 7 or 8 years ago.

SG      Okay. And when you say….

Kurt   I didn’t fill in any forms because I didn’t think I hurt myself seriously.

SG      Yes. And the way you are feeling now and the loss of use of your arms – has any doctor related that to your injury at work?

Kurt   Um.  They say there’s a hefty blow to the back of my neck and that it is either – I’ve got quite a few pages relating to that…. As well as that – I’ve also been a painter – so I’ve got no cartilage in the back of my neck as well and most of them and not [a lot but some].

SG      Yes no doubt. I mean I’ll definitely put you in touch with the right people at my firm but it’s definitely something that you should look into.  7 or 8 years is a very long time. I’m wondering how you – you know – how you got on with your life in that 7 or 8 years. 

Kurt                I just kept on working hard and taking pain killers – I just thought it was old age and went to a doctor because my hand was tingling and I kept on dropping a paint brush and he said what car accident have you been in? 

CS       He was right on the money. So there’s no 7 year statute of limitation for something like this?

SG      .With workers comp you’ve got a 6 month – I mean I don’t practice in the area but from my knowledge of having practice in the area – you’ve got to put in a claim form within 6 months and you’ve got up to 3 years to do so. So there may be a problem there.

CS       Okay.  All right.  Kurt – just stay there and I’ll put you back through to Gabriella if you can just wait on. Robert  have I got you now?

Caller 4           Robert

 Robert                        Sorry about that.

CS       That’s okay. Go right ahead.

Robert                        Whom am I talking to again?

CS       To Sally

Robert                        Oh Sally – nice to meet you.

SG      Hi Robert.

Robert                        Now Sally I’ve got a case going back 46 years – now that’s a cold case – something happened to me very very bad for 2 years – starting in 1970 and….. have I got any claim at all….  it was a terrible – may I talk…..

CS       It’s not a cold case Robert – it sounds like as if it is freezing.


Robert                        Yeah I think so Chris.

CS       How did it start?

Robert                        Well in 1969 I had the best …. like that song – 1969  It was the best year of my life. It was. And then I couldn’t hear – I was doing some public service job and I needed some matriculation – I had to get a few subjects and I couldn’t hear when I was sitting in class, so I had to get a new eardrum operation – during that operation in February 1970 all hell broke loose. The doctor – I had a cerebral haemorrhage and they spent nearly 3 or 4 or 5 weeks struggling to get me alive – I’ve survived….

CS       Struth.

Robert                        And after about 2 months I woke up and I’ve been paralysed – I’m blind in my left eye – the left side of each eye.

CS       In those first – in that first decade or two – you didn’t think about taking it further?

Robert                        Well, ahh – I was a different person – the person in 1969 and a person in 1970/1971, two different people.  People have told me that they wouldn’t believe it – I lost – lots of my friends just walked away because they were so sorry for me I think.  I’m good now – it has taken me this long – with the help of non-medication. I have a wonderful wonderful doctor up here in Brisbane – can I mention him?

CS       No need to Robert. Just see if we can ask Sally whether Rob has any re-coursing?

SG      I was going to say to you – you should of rung me but I wasn’t born then Rob – so you couldn’t have ….


SG      Just realised the year. I would say to you Robert my genuine advice to you is just get on with your life. The statute of limitations has expired – well expired – I don’t think I will have any chance in getting your records. It wouldn’t be worth your while bringing a case for hardship – the emotional hardship – the turmoil – I mean as I said you might have had a case had you seen lawyers back then – but at the moment it’s just so – everything – access to everything would be too farfetched and I don’t think that I would be able to help.

CS       Okay  Rob – Let’s leave it there. 131 873 the telephone number –We’ll be back – I’ve still got that $100 Westfield Voucher to give away and we’ll have Sally answering your calls after the break.  It’s 11 to 2.

Short Break

CS       Yes – and a couple of bits and pieces – we understand that Sam Dastyari as I intimated a little earlier today – will address the media at 2:45.  I hope he does more than address the media. I hope he answers a few questions for a change.  2:45 – Sam Dastyari – the Labour Senator and I’ll make sure we have some time free to cross to Sam Dastyari.  Meanwhile the Nine Network has avoided a long and damaging court battle with Stephen Rice from 60 Minutes after settling a legal dispute with the former producer who was the lone casualty of a bungled kidnapping attempt in Lebanon. He appointed a high profile workplace lawyer John Laxon – Stephen Rice – and they had been in Mediation with Nine with the assistance with John West QC – Mr Rice sought legal advice after Nine’s own investigation into the incident found no staff should be dismissed according to Mr Laxon in May. What’s happened to Stephen is diabolical from my perspective in circumstances where a number of very senior people at Nine – more senior than Stephen Rice were involved in the story from the get go. I never understood why Stephen Rice was made the scapegoat or maybe Nine was protecting more senior people – that seems to be the way it went – I presume that part of the negotiation was that they keep quiet but I will seek some response from Stephen in the next few minutes. Back to Turner Freeman and Legal Matters. We’ve got time for another question. Michael – quickly – go right ahead. 

Caller 5 – Michael

Michael           Yeah – G’day Chris – How are you going?

CS       Very well.

Michael           Good. Mate I’ll try and keep this as quick as I can. My father died 2 years ago where I believe medical negligence applied. Now what happened with him – he cut his toe when he was cutting his toenails and it became infected. He went to the local GP – they gave him some antibiotics – it really didn’t do too much – he was then bounced between 2 hospitals on the South Coast for a period of about 6 months.  His toes became gangrenous – questions were asked why they wouldn’t take the toes – they wouldn’t do it – it then got to a point where the clots were just going throughout his whole body – he was confused. They ended up amputating his leg below the knee and he had a massive stroke during or after the operation and passed away.

CS       Oh.. He passed away.

Michael           Yeah – they also had – they said that he may have cancer. I mean he was a smoker most of his life.  He was 72 when he died.  They took a biopsy of his lungs – they collapsed his lungs – the biopsy came back and they couldn’t get a result from the biopsy that they took – and all of this stuff happened and – it was 2 years ago – and yeah – I’m just looking at it going – well there is some medical negligence – I mean questions were asked why they didn’t just take half his foot…..

CS       Yeah – just leave it there – Sally – what do you think?

SG      Hi Michael. It sounds like a whole heap of things happened and your father went through a lot and I’m really sorry to hear that – it’s definitely something that’s worth investigating but it depends very much on your dad’s health condition when he went into the hospital – whether the infection was properly contained and then why it turned out that he needed the surgery to amputate – could that have been avoided and the massive stroke of course? So the series of cascading events has ended up in a tragic outcome but it needs investigation – it’s not something that we can say – clear cut there is anything there.

CS       So Michael leave your details with Gabriella and we’ll get you in contact with Sally.  Sally. Thank you very much for that.

SG      Thanks Chris.

CS       And I’ll get that $100 Westfield Voucher to Michael with that final caller after losing his father. That is the Legal Matters Segment for another Tuesday.


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