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Sally Gleeson featured on 2GB discussing medical negligence claims - 15 June 2021

Sally Gleeson providing Q & A on the 2GB Deborah Knight Afternoon Show discussing Medical Negligence - 15 June 2021

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

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Listen to the Podcast

Read the transcript below:

DK      And it is time for Legal Matters.  Free legal advice for your Tuesday.  The open line number – 131 873.  We’re looking this week at medical negligence.  So maybe you’ve had an issue with treatment at a hospital or you’ve been misdiagnosed – maybe you were given the wrong medication?  We have, as always, our $100 Westfield voucher to give away to the caller who asks the best question in our Legal Matters Segment today. Sally Gleeson is a Partner at Turner Freeman Lawyers and she’s on the line to take your calls – 131 873. Sally.  Welcome.  Great to talk to you on Afternoons.

SG      Thanks Deb.

DK      Now talk to me about industrial action with paramedics in NSW, we’ll get to the calls in just a moment, but we’ve seen that in the news recently.  So what happens Sally if an ambulance doesn’t show up and it causes further medical issues, is there a case for medical negligence?

SG      Well there could be potentially. I mean not showing up or being prevented from obtaining medical treatment because the medical practitioner or the health practitioner is striking.  It’s not really an excuse under the law.  It doesn’t absolve someone from attending to their job and duty whatever their role may be in the health and medical sphere.  So the legal standard is the legal standard regardless of what’s happening in the world – regardless of the political climate – patients deserve medical treatment – timely medical treatment and they deserve to obtain that treatment when they require it regardless of what’s happening in the world around them – that’s what we rely on and that’s what we trust.

DK      And the most recent strike in NSW – it wasn’t approved by the NSW Industrial Relations Commission – so the Health Services Union itself could face fines because of that industrial action, but would that non-approval add to any case potentially for medical negligence?

SG      It just escalates or highlights the fact that a case of a person who’s not received medical treatment because of the approval or non-approval or the fact that it wasn’t condoned, it just highlights their case and strengthens their case and added value to their case and helps prove the factual background behind their case.  That is, at that time there was a strike.  It wasn’t approved – if that is what is alleged and as a result they didn’t obtain the treatment.  I mean it makes the case easier because it’s not about treatment gone wrong – it’s about no treatment. That’s what it’s about.

DK      Yeah.  And we did also see on that same day, nurses walk off the job in Sydney and NSW and I’d imagine if there’s a roster of nurses caring for you and they all walk off the job because of a pay dispute because that’s what this was, you’d also potentially have a case if something went wrong.

SG      That’s right and the change of the dynamic of who’s at fault and it changes the dynamic of who is potentially liable.  I mean, a medical practitioner or a health practitioner is liable for their own actions but often they’re employed – they’re not always independent contractors – more often than not they’ve got an agreement with their employer about insurance and their actually liability is covered by the insurer of their employers and so we sometimes look at the potential fault of their employer.  Were they involved?  Should they have been held liable for the actions of their employee who is a health practitioner providing a service?  So it might change the dynamic of who’s at fault but it doesn’t at all take away from what a person deserves to obtain by way of medical treatment.

DK      You may have a question.  131 873 is the number.  The phone lines are open right now.  131 873. Sally Gleeson is with us from Turner Freeman Lawyers.  Medical negligence covers a lot of areas and I know that you’re a specialist in the field Sally, but what about misdiagnosis, is that a basis for a claim?

SG      It is.  It can.  There are many many types of medical negligence claims Deb.  So the legal standard is not what the gold or perfect standard is.  No matter what the circumstances are.  So, treatment gone wrong – not diagnosing a problem in time.  Diagnosing a problem – but diagnosing the wrong problem – operating and not operating competently.  They’re all types of medical negligence cases.  But the standard at law is the same no matter what the circumstances are.  The law looks at what an ordinary, reasonable competent provider – health provider should do.  So it’s not about the perfect care – it’s not about holding someone accountable to the gold or perfect standard.  The test at law is one of reasonableness.  You know, was it unreasonable for someone to behave the way they did?  And that’s a test at law.  So that’s what we look at as lawyers.  We look at what’s reasonable and required by someone in the provision of health treatment.

DK      And there are protections aren’t there for medical professionals against claims that wouldn’t hold up in Court?

SG      Absolutely.  All a medical practitioner has to do is obtain the opinion of one of their peers to say that the service that they provided was reasonable and that’s a defence and it’s up to the Judiciary – so the Judge – to decide what side of the evidence they hold to be more strong in the eyes of the law.  So, you know the person who brings the claim holds the onus.  So they have to prove their case.  It’s up to them – there is no case without proof. So they have to prove their case.  And all the person(s) who’s being put to the test of medical negligence has to do and say “hang on, I’ve got someone who sides with me, I’ve got someone who believes that what I did was reasonableness – it was reasonable and then it’s a matter of balancing the evidence and looking at the strength of the evidence on either side.  So it’s pretty difficult to bring a medical negligence claim.  It’s not an easy thing.  It’s about proof and the legal standards that apply to the fact.

DK      Alright.  Let’s get to some calls.  Margaret is on the line with a question for Sally.  Hi Margaret.

C1       Hi.  I know it’s a very long story, but I’ve got to make it as short as I can.  I have a daughter who’s in her early thirties who’s had swelling of the neck what we’ve noticed over probably the last 2 ½ years.  She goes to a doctor the same doctor that she’s been going to for ages.  She said “oh, we’ll do a thyroid test – no it’s nothing showing in the thyroid test“.  She says “I feel this is getting bigger” – no do another blood test – no nothings showing anyway.  To cut a long story short, I said to my daughter, go and see our GP – he’s lovely, he’s young – whatever and he’s with it.  She gets up there and he said – have you ever had –he said – Lucy – that is massive – have you ever had an ultrasound?  And she said no – he said “I can’t believe that nobody has done an ultrasound on your neck”.   So that was the first thing that showed up.  She’s got thyroid with nodules in it and she’s got a massive goitre and this has been growing – he said that if this had been picked up 12 or 18 months ago, you wouldn’t be in this – you’ve – she’s got to have major surgery now to go around the whole of her neck and she’s got to have the thyroid

SG      Oh Margaret.

C1       So she’s got to have the thyroid out and the big goitre out which is also got a nodule in it – the other ones have come back benign but they haven’t – like I don’t know the reason they haven’t tested this one.  But…..

DK      Well let’s see if Sally has any options for you because it sounds as though that’s been a misdiagnosis.

SG      Yes.  That’s exactly what you are saying Deborah. I mean that’s the classic case of misdiagnosis.  You go and see someone.  Margaret’s daughter has had the swelling of the neck for 2 ½ years.  She’s in her early 30s – she’s very young.  I mean you know – to a common person, that’s a red flag for something more sinister than just a swollen neck and what ends up happening is that she sees a GP who does the right thing and says you’ve got to go and get some proper scanning and testing done and now she’s got to have surgery that she probably would have avoided in its intensity and in the fact that it is more extensive than it otherwise would have been.  So that’s a misdiagnosis case.  There was something wrong with Margaret’s daughter and that should have been treated earlier if that’s the case and it’s not about avoiding what she had, because she had something – it was an underlying condition – we don’t know what it was – it was a goitre we now know and some swelling in a thyroid issue.  But it’s about the  – the law looks at what would have happened had a proper diagnosis been made earlier and what would Margaret’s daughter’s outcome have been and that’s the damage to her – the damage is the increase in her injury and her problem because of the delay and that’s a misdiagnosis case.

DK      Alright stay on the line Margaret.  We’ll get your details for Sally because it sounds like you have got to explore that further and I’ll also get you the $100 Westfield voucher because that’s a really good call and I’m sorry for your daughter to have experienced that but we’ll get that $100 Westfield voucher to you Margaret.  Helen is on the line.  Hello Helen.

C2       Hi Sally – how are you today.

SG      Hi Helen.  Good.  How are you?

C2       Oh not bad love.  Sally, about 3 years ago, my son had his own business so he’d never take a day off work – he took crook and he went home and was in bed all day and my secretary said well he’s got to be sick to take the day off work.  That afternoon my granddaughter who was about 10 or 12 at the time, called a doctor.  A doctor came to examine him and said – oh you’ve just got a virus.  Next day he got worse.  I called the doctor again.  “you’ve got a virus”.  That afternoon they called an ambulance – virus – 3:00 in the morning, he was rushed by ambulance to Liverpool Hospital – put in Intensive Care – my daughter-in-law said to them “is he going to die?” and they said  “we won’t know – we don’t know”.  He was on life support for a week – he was in ICU – a lot of organs were all shutting down – they just didn’t know how he would go.  Now, at the time I said well, like why didn’t the ambulance take him in the first time?  Now like – why couldn’t something be done?

DK      So what had ended up was the diagnosis Helen?   

C2       Pneumococcal and pneumonia.

DK      Oh goodness.  Sally – what would be the options for Helen and her son?

SG      Helen, sorry – did your son make it – is he okay or?

C2       Yes – he just survived it – he still has [inaudible], as I said – he……….. is ……. everything was shutting down and we got there in the morning and they said – well – they said- oh in about an hour.  It was about 6:00 in the night.  They let us go in……

DK      Well what are the options here Sally?

SG      So Helen – I’m so sorry about what’s happened to your son and that in itself how shows you how serious medical conditions that often appear to be not serious can be.  We have to show that had something been done earlier – so had your son been diagnosed earlier – number 1 – that he should have been diagnosed earlier.  That his signs and symptoms were not that of a virus – that there was something more and more should have been done earlier.  It’s very easy sometimes to think someone’s got a virus but you’ve got to look for the signs and symptoms. We need to show – we need to prove that they should have known back then that it wasn’t just a virus and then secondly we have to show that had they done something about it earlier, your son would have avoided the gravity and the seriousness of what he went through and if we can show those 2 things, then your son might have a case.  That’s what we need to do – so it depends very much on the delay, the time that elapsed between when he was actually taken to hospital eventually and the first time that he ever saw a GP and whether that period of time whether it be 1 day or 2 days a week or whatever it is caused an impact on his ultimate condition – so that’s what we have got to show.  So I’ve really got to look at the facts.

DK      Alright Helen – if you can also stay on the line and we’ll put you in touch with Sally to see if we can investigate that further and Andrew unfortunately we are out of time to get to your call but we will deal with medical negligence again in the future.  Sally, thank you so much for joining us.

SG      Thanks Deb.

DK      Sally Gleeson there. And Turner Freeman Lawyers do 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 and you can visit them on their website turnerfreeman.com.au or give them a call directly on 13 43 63.

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