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Sally Gleeson discussing medical negligence: misdiagnosis or missed diagnosis

Sally Gleeson providing Q & A on the 2GB Chris Price Afternoon Show discussing "medical negligence; misdiagnosis or missed diagnosis" on 23 July 2019

Tuesday, 23 July 2019

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CP – Chris Price / SG – Sally Gleeson /C1,2,3, etc – Callers

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CP         It’s great on a Tuesday because we get access to some of the best legal minds in the country. Joining me in the studio, partner at Turner Freeman Lawyers Sally Gleeson, great to see you, thanks for coming in.

SG         Thanks Chris.

CP         We should also always point out that we have a $100 Westfield voucher to giveaway to the caller who asks the best question in our legal matters segment 131 873 is the number and Sally we are talking today about medical misdiagnosis.

SG         Yes it is often something that I see happen more often than I would like and generally speaking medical negligence is a difficult and complex area and so there are many types of medical errors that may occur and one of them is medical misdiagnosis or missed diagnosis. Generally speaking I thought I would introduce the topic by talking about medical negligence and what it is because it is often not understood very well, so a medical negligence claim arises when someone suffers an injury when they are receiving professional services by either a doctor, an allied health professional like a psychologist or a physiotherapist or pharmacist or a hospital. The law is really clear that any type of health professional treating a patient owes that patient a duty of care arising out of that fact alone, the doctor patient relationship and the duty generally speaking is to exercise reasonable professional skill and judgment. Very simply speaking a health care professional or provider must provide treatment and advice that is competent and reasonable, so we saw on the news a couple of cases of medical diagnosis or a missed diagnosis.  Medical misdiagnosis generally speaking occurs where your doctor tells you that you have an illness or a condition but that’s incorrect.

CP         So how common is it? I mean, 131 873 by the way if you have been through this you’ve had an incorrect medical diagnoses or you know of someone who has and there has then been action that has caused that person some financial harm or some physical harm, give us a call 131 873 is the number and you can pick up for yourself a $100 Westfield voucher. We will give that away to the caller who asks the best question in our legal matters segment this afternoon. So Sally’s here so if you have questions, you might feel you are in the middle of an incident like this or you have been through it in the past, give us a call, give us the information. You’ve got a horrific example of someone misdiagnosed with breast cancer.

SG         Correct. So we heard this week about a young woman in the UK, a 28 year old woman who was misdiagnosed with breast cancer at the end of 2016. She went in for some testing and biopsy sample was incorrectly recorded so no doubt a pathologist is in the firing line in this case so as a result of the misdiagnosis she was told that she had breast cancer when she did not. She underwent a double mastectomy and gruelling chemotherapy treatment before the hospital realised its mistake.

CP         This was in the UK?

SG         Correct. And so I wanted to say at the start in this case that the hospital eventually realised its mistake, admitted to its mistake and admitted liability in the case, meaning that it admitted that it was negligent.

CP         But she is there with a double mastectomy, presumably some stress and anxiety on top of that.

SG         Possible infertility.

CP         Psychological damage plus what chemo does to you.

SG         Absolutely so if this was to happen in Australia for example in NSW this woman would be entitled to claim for her pain and suffering, her out of pocket expenses, her inability to work, her loss of earning capacity and any care and assistance that she is required by virtue of the pain and suffering that she has been through and obviously that is something that anyone who has been through this kind of suffering should seek legal advice from.

CP         It’s really interesting, a friend of mine, one of her friends was in QLD and booked with her daughter to go on a horse riding expedition and the horse bolted and she fell off and badly bruised herself and she was diagnosed at the local clinic as just having a cracked rib, came back to Sydney and was in diabolical pain, went to Royal North Shore Hospital and it turns out she had four broken ribs, a crushed sternum and a whole bunch of other injuries, body covered in bruises, so would she have a case against the original misdiagnosis in that case, it’s not that they diagnosed her as having something she didn’t have, they missed what she did have.

SG         They were late and that’s a prime example of the other case that I was going to talk about, it overlaps with medical diagnosis but it’s a misdiagnosis case so in that case not diagnosing something and finding out later that you have something that should otherwise have been treated differently, obviously it happened and you can’t avoid the fact that it happened and there was damage initially but it’s about what additional damage the lateness in diagnosis caused and that’s the….

CP         Well she’s been unable to work.

SG         Correct.

CP         Can’t take her child to school, would she then take legal action against the horse riding company or against the clinic?

SG         Well the horse riding company is where the initial damage occurred but it’s expected that you go and attend a hospital or clinic and you get the best possible medical treatment that you can, so the horse riding company would argue that there was a breach of the nexis – the connection between the accident that happened as a result of the horse riding incident and the doctors and so where did the primary negligence occur, the primary negligence occurred with the horse riding company but they will always defer it to the hospital and say, had they treated her properly then her outcome would have been different. 

CP         I might have to send her to Turner Freeman I think. Quick break, back with our guest Sally Gleeson. A stack of calls there, we will give you another example in a sec.

CP         Sally Gleeson, partner at Turner Freeman Sydney office specialises in medical negligence. She is in the studio, great to have you with us.  Voucher of $100 to Westfield for our best caller today. Melanie you are speaking with Sally go ahead.

C1          Good afternoon Sally, I just want to find out if I could, my son in law about 2.5 years ago was playing touch football thought he sprained his foot, had x-rays, told to go back to sport after 6-8 weeks which was the normal healing period but it turns out that he actually had a fracture and it was misdiagnosed in the first x-ray that he had done. Consequently he now has a crushed top of his foot and is awaiting major surgery to reconstruct his foot. Now we have been told that the original fracture could have been fixed very easily and he would have been ok but 2.5 years on he can’t work, he can’t put a shoe on his foot without severe pain, so I am just wondering where we would stand with something like that?

SG         Sure, Melanie thanks for calling, that is a prime example of misdiagnosis what I was talking about, obviously I would have to look at the facts and the records and the scans but diagnosing someone with a sprain when they have a fracture which is a major injury that involves bed rest and total immobilisation, is a big deal and a crushed top foot is very different to a situation where you have a fracture that needs either a cast or surgery for repair then again rest. So if we can prove, which is a matter for me to do through looking the records and using the requisite experts and the right experts, the misdiagnosis caused your son in law an additional injury whereas he could have avoided the severity of the injury, obviously he would have had some issue but not as severe as he now has from what you say then definitely there is something that I can help you with.

CP         So if you want to hang on Melanie we will make sure we give you some contact details so you can take that a little bit further. Anne is on the line, G’day Anne how are you?

C2          Oh hello Sally.

SG         Hi Anne.

C2          Hello. I am ringing on behalf of my daughter and she had a baby and then she kept feeling ill and she went to the GP three times saying she felt dizzy and had a very bad headaches and very tired, they gave her an antibiotic for her breast infection, no blood tests, she collapsed and went to RPA with acute blood infection and septicaemia I think it was called, she had two small strokes and the infection went to her mitral valve which now has to be replaced with open heart surgery and she is now on warfarin for the rest of her life, so should she see somebody?

SG         I’m very sorry to hear that, I mean that sounds terrible. Can I ask Anne, over what period was the illness felt and over what period did she go and see the GP?

C2          From the time the baby was born up to when she collapsed. She went about three times altogether.

SG         Well definitely something I am happy to help with and it sounds terrible, I can’t understand how this sort of thing could have happened but I would have to look at the circumstances and the facts as they arose and that is something that I can investigate and help with.

CP         Anne you hang on there, similarly we will make sure we have some contact details for you. Julie is on line in Bass Hill, G’day Julie.

C3          Hello.

CP         Hi go ahead.

C3          Alright, I was assaulted 6 years ago, I went to the doctor he noted it down everything. 4 months later I asked him for a blood test to make sure I had no aids or nothing like that. I didn’t know that the blood test came back unknown bacterial infection further investigation needed. Um he did nothing after that. Then I was started to get sores on my face and I was getting pus balls under my arms and he kept giving me cream and antibiotics then my nose swelled up and I’ve still got the holes in my nose, my nose is still twice the size and he kept giving me all medicine, I couldn’t breathe and I am in so much pain since it’s over 14 months and he kept giving me painkillers. The next day, I just sold my house, the next day I woke up screaming and the real estate rang an ambulance and they said one more day and you would be dead.

CP         Sounds like a very extreme case.

C3          I got ? in my wrists from when the police assaulted me, I got cellulitis in my nose, I got MRSA too which I’m very upset

CP         I can understand you are very upset, likewise if you can hang on we might try and put you in contact with someone as well. Are these sort of typical of cases? I mean that fracture case for example, I mean that is like my friend who had the crack in the rib and turns out they had broken ribs.

SG         And the frustration comes from not listening and the frustration comes from whoever it is and I’m not labelling people but it’s actually about listening to a patients complaints, signs symptoms, diagnosing the condition and if you don’t know what it is, keep looking until you find out what it is rather than just ignoring the symptoms and the signs. Often patients are the best indicators as to what is going on, it’s their body and they know what is going on and really it is a matter of communicating. With every person that I see the frustration is the lack of knowledge, lack of understanding and lack of communication by their doctors.

CP         And the old adage, get a second opinion if you’ve got a doubt. A friend of mine was diagnosed with lung cancer, turned out to be a shadow and it wasn’t lung cancer at all, told his family he only had a short amount of time to live, started to make arrangements to exit his job and it was just appalling and it was just a misdiagnosis.

SG         Absolutely.

CP         And he has been affected by that ever since. I mean he often talks about feeling unwell and he thinks that set that off.

SG         And the psychological harm of these types of injuries are huge and never to be discounted and often worse than the physical harm.

CP         Sally Gleeson, partner at Turner Freeman Lawyers is in the studio with us. We are taking your calls on 131 873. Let’s talk to Andrew, G’day Andrew in Wangaratta. How are you mate?

C4          G’day Steve and Sally.

SG         Hello Andrew

C4          My wife had a knee reconstruction in January of last year, the complicating factor here is that it was in the UK. Soon after the knee reconstruction the physio noticed that there was something not quite right, cut a long story short, we have seen two specialists here in Australia since moving back from the UK and both of them are saying that it needs to be redone. I mean this is not a small operation.

SG         Absolutely. Did they explain why it needs to be redone? Did they diagnose the condition and why your wife’s continuing to suffer?

C4          Yes it’s a condition called valgus where the knee is off to one side so that throws the whole lower leg out.

SG         And did they relate that to the knee reconstruction in January of last year or is that a recognised risk and complication of the surgery? Did they explain?

C4          Well that’s a good point. Maybe that could be the thing that they will claim that there was a risk that this could happen in the beginning.

SG         It’s always a risk and that is always a defence that is put up by an insurance company. I’m very happy to, I mean it simply can be investigated by asking for the records and having a look at the opinion of the two specialists. Often an injury or a medical negligence situation that causes an injury is a recognised risk but there are instances where it’s not and could have been avoided by the exercise of reasonable skill and care and that’s my job as a lawyer to find out whether it should have been avoided or it’s one of those things that couldn’t have been avoided. So I am very happy to explain that to you off air.

CP         Hang on Andrew, we will make sure we give you contact details. Many of these cases I guess you look at it and go well I’m  not sure whether we will go much further with this and your advice would be no.

SG         Absolutely so we have to adopt a very conservative attitude, it’s not about suing doctors it’s about helping victims or patients who have suffered an injury and that is what I focus on, it is not about laying blame or pointing the finger, it’s about these things happen it’s not intentional that’s why it’s called negligence and really the law allows people to be compensated in certain circumstances where negligence occurs and we focus on helping the victims with maximising their compensation entitlements.

CP         Sounds like a very common sense approach, lay it over with the law.

SG         Absolutely. The law has to apply.

CP         You can’t give people false hope and say well you know everybody has a case.

SG         You can’t add salt to their wounds absolutely no we have got to do the right thing.

CP         That would make it worse.

SG         Absolutely

CP         Brendan is in Woy Woy, G’day Brendan.

C5          Good afternoon Steve and Sally.

SG         Hi Brendan.

C5          My father in law and mother in law lived in Auburn, they were both retired. Father in law was hanging out some clothes, he fell and hit his head and on inspection they found that there was some internal bleeding and said that it was a simple operation, they put a shunt or something in there and it extract the blood. He was asked to sign a form, nobody else was present with him when he signed the form, and the specialist was supposed to operate but he was still busy in theatre so he asked his assistant, a doctor who was under him to do the operation and when he came out of the operation the next morning we were there with him, he could not speak and he could not eat and when we asked to see the doctor that operated on him, they said no he had been transferred to the children’s hospital.

CP         So subsequently how has he been Brendan?

C5          Oh he has passed away since.

SG         I’m very sorry.

C5          But we were not able to speak to him for over a month, we were able to speak to the specialist who was supposed to operate on him and he said these things happen and it was a mistake and when we went to the solicitors I think they are called something no win no fee and they went to the hospital and nobody would speak to them or tell them anything and they kept saying that this fella had been transferred. My father could not eat or swallow and he had to have a stomach- he was fed through his stomach.

CP         Okay Brendan, let’s see if we can get some advice here. I mean can you retrospectively go back if you have lost a relative?

SG         I am very sorry to hear about your father in law’s death. When someone passes away their entitlements, their individual entitlements to pain and suffering are extinguished but their estate is entitled to claim compensation. So number 1 we would have to look at whether there was any negligence and number 2 the rights would be for the close family members to receive compensation for any psychiatric injury that they have suffered or for the loss of benefit that their estate would have otherwise derived. So Brendan we need to relate the brain bleed, the brain bleed occurred and couldn’t have been avoided, he had internal bleeding. We need to ascertain whether the treatment that he received at the hospital was competent and whether they should have done something differently to assist your father in law. I’m not sure whether you know that or whether he was too far gone or whether the surgery itself was incompetent, that’s what we have to explore. A brain bleed is a very serious condition but obviously that is why you receive treatment at a hospital so I mean have you had a look at the clinical records at all Brendan?

C5          Well they told us that a nerve had been cut. Severed.

SG         Well that’s an operative, potentially an operative error so you really have to look at the clinical records, you have to understand exactly what took place during the surgery, whether it was something that couldn’t have been avoided or whether there was incompetent treatment given during the surgery so that is something that we should investigate.

CP         Again Brendan hang on, we will give you contact details. Sally Gleeson it is such an important area of the law and clearly people need to know their rights, I think we have helped a lot of people this afternoon, let’s hope we can continue to do that. Westfield voucher goes to Melanie of Campbelltown. Good luck with those cases that you’ve talked about.

SG         Thanks Steve.

CP         I do want to have a talk to you at some stage about your class action on the breast implants which is a massive massive story.

SG         Absolutely. I am here next week so maybe then.

CP         We can do that. Sally Gleeson at Turner Freeman.