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Sally Gleeson featured on 2GB discussing medical negligence claims - 17 August 2021

Sally Gleeson providing Q & A on the 2GB Deborah Knight Afternoon Show discussing Medical Negligence 17 August 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      But first so, as part of our regular on a Tuesday. Legal Matters. Free legal advice. So give us a call if you’ve got a question today. We’re looking at medical negligence. 131 873 is the number to call. We rely on medical experts and doctors, but what happens when something does go wrong?  Maybe there’s been a mistake during surgery and it can cause problems for you when you’ve left the hospital or even worse – what if they aren’t doctors at all?  Because we’ve heard the news of people posing as doctors – working for months even though they didn’t have the proper qualifications.  If you’ve got a question to do with medical negligence. Now’s your chance – 131 873. Sally Gleeson is a Partner at Turner Freeman Lawyers to take your questions on medical negligence and as every week, we’ve got our $100 Westfield voucher to give away for the best call. Sally. Thanks so much for joining us again. I wanted to start with this story of this woman who did have some medical training working at Bankstown Lidcombe Hospital as a doctor but she wasn’t qualified. She never got her final qualification. Generally speaking, whose job is it to make sure that a doctor or a health professional is actually registered and qualified to do the job they’re meant to do?

SG      Hi Deborah. So I mean obviously it’s the job and the responsibility of the doctors themselves. Doctors owe the public and owe their patients a duty to do the right thing to be registered – to ensure that they are qualified – have the requisite training skill and experience to practice in the area they purport to practice in and failing that, everyone has a role to play. There’s a regulator or several regulators – the employer has a role to play and has a duty to ensure that the person they are employing is registered and also their colleagues and peers. So, it’s a multi-tiered approached and a multi-teamed approach but ultimately, you’re a doctor, you hold yourself out to be a medical practitioner – you’ve taken oath and you’re responsible for ensuring the wellbeing, health and safety of the patients who you treat. So, first and foremost it falls on your shoulders.

DK      In this case though, the woman’s done the wrong thing. She’d been working for 8 months in the role. What would happen Sally if she were to have assisted a patient or there was an issue as a result of some of the work she had done, who would be liable?

SG      So she’s employed by a public hospital – so it depends very much on – I mean she’s liable – I mean first and foremost she’s liable – she is not registered. She is unable to practice. Every doctor practicing medicine in Australia must be registered with the Medical Board of Australia.  There are specific types of registrations for students and graduates and international medical graduates and everyone who wants to be registered has to meet a range of requirements to become eligible. So various checks and balances and impositions – and so everyone has to be registered.  Again, it’s her responsibility to ensure that before she practices medicine – before she holds herself out to be someone who can provide patients with care and treatment that she is registered and she does the right thing by the patients. Her employer has to be satisfied that she has provided them with a current and valid registration – that they have been informed of any restriction – that she has given them a certificate of indemnity insurance – every doctor has to be insured – whether they’re employed in a hospital or they’re employers themselves. They have to provide their employer with a verbal and written references that supports their applications and the contract would stipulate their clinical scope and practice based on their qualifications and training. So it’s hard to fall through the cracks – there’s a series of steps and checks and balances to ensure that the person practicing and holding themselves out to be a doctor does the right thing, but of course people do fall through the cracks – in every profession they fall through the cracks and sometimes patients have rights and entitlements and compensation entitlements and sometimes unfortunately they don’t.

DK      Yeah and just after that story came out, there was the news that 60 medical professionals have been charged over the past 5 years for either not being registered or for actually being fake. So, it happens as you say, it shouldn’t but sometimes it does. I also wanted to ask you in relation to COVID, we are seeing a lot of the big businesses and companies encouraging staff to get the jab to get vaccinated and Telstra is one of them. They’re now offering staff gifts valued at around $200. If you have a business organise your vaccine, but you haven’t consulted a GP and something goes wrong, would you have a potential course of action there Sally?

SG      Well Deborah, I’m a business owner so I hope you are not setting me up here.  I hope……

DK      I would never dare………… you know, you’ve got legal advice if you ran into trouble anyway.

SG      An employer can only recommend that their employees – I mean as far as what I understand is the current state of the law. I mean you can motivate your employees, you can give them perks and incentives and gifts and all those sorts of things and obviously every employer to some degree has to encourage their employees to do the right thing so that we can get through this crisis quickly as possible. But the actual person providing – but every employee who decides to get vaccinated, has to do their research – has to do their own due diligence to ensure that the vaccine is right for them – they’d have to speak to their general practitioner – they’d have to consult the doctors with whom they should consult if they’ve got a pre-existing medical condition and ensure that they are suitable candidates for the vaccine and so an employer’s not liable if something goes wrong, because that’s where the relationship between the employee and the medical provider and depends very much on the advice that they were given rather than fall squarely on the shoulders of the employer.

DK      And I know that a lot of doctors are still waiting to get the medical indemnity for delivering the vaccine doses that has been promised but hasn’t been delivered as yet. But, broadly with medical negligence, can doctors get in trouble for not being forceful enough with their patients when it comes to illnesses – whether it be providing vaccinations or just broadly, personal responsibility has to take some precedence in this space here, but can doctors run into strife if they haven’t really pushed their patients to take a certain measure to take a certain course of action?

SG      You can’t push your patient because ultimately you are your own person and in Australia and certainly in western society, you have a right over your own body and over your personal decisions and you of your own choosing can reject or consent to treatment. So doctors have to do what’s reasonable and what they believe is reasonable and give advice that they believe adheres with the medical standards. Ultimately, the patients can accept or reject that advice and it’s very hard for a doctor to force the patients to take on the advice or to adhere to the advice or comply with the advice – ultimately all doctors can do is give advice –the best advice that they can give and the decision is with the patient and that’s the world that we live in. The patient has a right to consent or not consent to medical treatment.

DK      A question here from a listener that couldn’t stay on the line, but they’re saying they went to get a skin cancer checked by their GP and the GP missed it and then they had to get the skin cancer cut out much later. They’re fine now but the scar is pretty bad and they’re worried about the future. Would there be a case in this scenario?

SG      Well medical negligence being the complex law that it is, the test at law is not just that a doctor might have made a mistake and in this case – not diagnosed the skin cancer as early as they should have. It’s about three (3) things. It’s about should they have done something earlier?  Would a reasonable doctor in their position have done something earlier? Secondly, had something been done earlier, what would have been the outcome at that point in time and what’s the outcome now? And so what is the damage to that patient due to the delay in having the skin cancer taken out at an earlier time and thirdly, what’s the ultimate damage – if they’re fine now and they don’t suffer from any additional damage caused by any delay by the doctor, by law they’re very restricted in what they are entitled to obtain by way of compensation – the law says that if you’re injury is minor or modest, it’s really almost impossible when you take into account the risk and costs of proceedings to obtain compensation that’s viable or commercially viable. So it’s an assessment on an individual basis depending on the merits of the case. But generally speaking, despite any negligence, if you do very well and you go back to life and you’re back to normal and back to your normal activities of daily living – it’s hardly worth bringing a claim – it’s really about the damage that you are suffering on a daily basis of the injuries and disabilities you have ongoing.

DK      And a follow-up question to that saying – I used to purchase a brand of sunscreen that’s now been recalled – if that causes health issues in the future, is that a medical negligence case or could that be something else?

SG      Well that’s a product liability case – it’s not a medical negligence case and it’s about a manufacturer and it’s about the product and it’s about whether the product was fit for use and fit for purpose and it’s a totally different area of law. And it’s not about whether you may become unwell or may suffer any health implications, you really have to……..  So looking into the future about something that hasn’t yet materialised is very very difficult from a medical negligence point of view or a product liability point of view. You’d have to have suffered an injury that can be directly linked to that wrongdoing.

DK      And a final question here. Someone’s saying they had a stroke. It was misdiagnosed early and there are discrepancies between the documents at the hospital and the ambulance – they now have some cognitive issues. Could there be a claim if the stroke had not been treated early enough?

SG      I mean stroke is one of those things where you’ve got to get onto it really quickly – the signs and symptoms can be quite clear – sometimes they’re discrete and they are not as clear but generally speaking, if someone presents to a hospital or to a doctor and they believe that they’re suffering from something which may be linked to a stroke, the doctor has to refer them if it is a GP for example to the nearest public hospital and the hospital obviously treats them and investigates, runs all the tests and scanning measures and normally they give them, you know the stroke – clot busting medication immediately – and there’s a very narrow timeframe within which that medication can be administered, otherwise it’s far too late and nothing can be done to alleviate the impact of a stroke – so sure – absolutely – it is something that can be investigated.

DK      All right. Sally. We thank you for your time.

SG      Thank you Deborah.

DK      Sally Gleeson there – and if you’ve got a question for Turner Freeman Lawyers, they provide a range of specialised legal services including compensation and negligence law, asbestos litigation, superannuation and disability claims, employment law, Wills and Estate and property law.  Get in touch with them directly. Visit turnerfreeman.com.au or call 13 43 63.

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