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Sally Gleeson featured on 2GB discussing medical negligence claims – 2 March 2021

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

Tuesday, 2 March 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 every Tuesday, we do have our regular segment, Legal Matters. Some free legal advice for you. So give me a call.  131 873.  We’re looking today at medical negligence. And we rely on medical experts and doctors, but what happens when they get something wrong?  Maybe they make a mistake during surgery or they give a misdiagnosis and it can cause problems for you down the line. What can you do? 131 873 is the number to call. Sally Gleeson is a Partner at Turner Freeman Lawyers and she’s on the line to take your questions on medical negligence and we’ve got as always every week, a $100 Westfield voucher to give away to the caller who asks the best question in our segment today. Sally, thanks so much for joining us.

SG      Thanks Deborah.

DK      I want to start with this first up because often hear that Dr Google is where you should never go for expert advice but many do. If you try to diagnose and fix something yourself and you ignore the advice of doctors, do you have a claim if you then go to your doctor and try and get some issues and you’ve been to Dr Google first?

SG      Well I’d never recommend Dr Google. Dr Google is a good source of general information but if you’ve got a medical problem that needs attention, of course you’ve got to go to a proper doctor. It depends very much on the circumstances and it depends on the quality of the advice that you were given and whether you ignored that advice. So, as we know normally medical negligence arises when you come to trust your doctor and you follow their advice and that advice turns out to be the wrong advice and you suffer an injury as a result and you’re entitled to by law to compensation. Sometimes though, a patient might not adhere to a component of the doctor’s advice – perhaps because life gets in the way – or they feel that they need a second opinion because they disagree with their doctor’s advice or they’re uncomfortable. The question about whether they can sue depends very much on whether that advice was the right advice or the wrong advice. The mere fact of ignoring your doctor’s advice doesn’t necessarily disentitles you to claim compensation. If for example the advice that you disregarded was the wrong advice, you’d probably still have a leg to stand on, but if you don’t follow the right advice, you probably can’t sue.

DK      Because I suppose there’s a whole question of personal responsibility here too because if the doctor gives you a piece of advice and you ignore it or if the doctor perhaps hasn’t been forceful enough in asking you to adhere to their advice, do the doctors bear some responsibility here or does it come down to personal responsibility?

SG      There’s…… it’s a two way street. So a doctor is not your parent or legal guardian, they can’t hold your hand. You go and see your doctor. The doctor expects you to understand their advice. As long as you’re not incapacitate in any way. If you’re a full functioning adult. And even children over 16. You go and see your doctor. The doctor says, this is what I recommend. This is the treatment that I believe you need.  Write’s you up a referral or prescribes you medication or tells you to go and get a blood test – if that’s the right advice and that is the treatment that is needed so that the doctor can diagnose your condition and the give you the proper treatment and you decide to ignore that advice and you develop a medical condition as a result of ignoring that advice, well it’s very hard to point the finger at your doctor – your doctor has done the right thing.

DK      And on just on the medical equipment too, because if you’ve got blood pressure issues and you’re told to use a blood pressure monitor for example, if you use it and the device is not working properly and then it leads to health issues down the track, could that be a medical negligence case or is that consumer law?

SG      So that’s not your doctor’s fault – that’s generally a product issue. So, there’s a big difference between product liability – meaning that’s an issue between you and the manufacturer, the manufacturer of the product, the person or the organisation that put the product together, created the product and delivered it to the market and your doctor who’s entitled to rely on the product and its efficiency and correctness. So there’s a big difference there. So one’s the manufacturer’s liability and the one’s a medical responsibility. Two totally different issues.

DK      All right let’s get to some calls.  131 873 – Daryl has called in. What did you want to know from Sally today Daryl?

C1       Um – Hi Deb. Hi Sally. Thanks for taking my call.  I went into Emergency Department just over 3 years ago. I had an ear ache and it was extremely painful – I said to the nurse who I’d worked with for years – the pain was a 15 over 10 – it was actually even unbearable pain. Anyway so the doctor came in and checked me out and he said “You’ve got cotton wool in your ear“. I said “No doctor  There’s definitely no cotton wool in my ear”. He said “Yes.  There’s cotton wool in your ear“.  This went on for a few minutes you know – back and forth. I said “Listen doctor. I’m a trained nurse practitioner – I don’t stick nothing ……………………. down my ear. There’s no cotton wool in there”. Anyway, he proceeded to put a pair of forceps down and pulled out some white pussy stuff – I though ok – abscess – it doesn’t help – He kept pushing and prodding and pulls out blood. I thought – oh dear. Anyway over the course of the weekend, I’d lost my hearing on that side, so I went up to a medical centre in the local area and one of the doctors I saw said I have a massive haematoma on your membrane. Oh – that’s not good. So he gave me some drops to try and dissolve it and he said come back and we’ll check it out. So I went back to get it checked out – and ……………………..tympanic membrane.  ……………… see an ENT specialist. I explained to him what has happened and he said you really should put a big complaint about this. I didn’t do – because I didn’t want to sort of cause friction with the hospital I’d worked with for so many years. – But now I’m still deaf on that side – I’m still have a very pussy extricate coming from it and the smell has been ……………….. into my throat and it’s awful and I’m deaf and my whole side of my head feels dead.

DK      Oh goodness. Sally – what would Daryl – what would you advise in that circumstance?

SG      Daryl – have you seen and independent doctor – a specialist – an ear, nose and throat surgeon about the tympanic membrane perforation – which is your eardrum.

C1       Yes I did – I’d seen one. He was the one that advised I should put a complaint in against it. So I’d seen him for a while and I’ve just had it flushed out and cleaned and did everything that was supposed to be done – but because of I’m an anaesthetic risk, he said it was risky to try and put a patch over it.

SG      Sure. And has it affected your life Daryl? Has it affected your work, has it affected your ability to undertake daily activities? Has it had a huge impact on you?

C1       Just in my family life. My home life. Everything. I mean, if you’ve got a couple of people talking and I’m trying to listen around – I can’t hear people – more than one person trying to talk at once – where’s I’m listening to music – which I love listening to music to relax with – I can’t listen to music and talk with my family. I do have a young daughter who’s bilaterally deaf. She’s a foster daughter. And I sort of feel so much more sad for her because I ‘m starting to understand a little bit of how she must feel.

DK      Yes. So it’s impacting his life Sally.

SG      It’s definitely something that I should explore with you Daryl. I mean what happened to you is probably that should have been avoided. I don’t see why anyone should be prodding and pushing and pulling around in your ear causing a haematoma which caused you a hearing loss – so you definitely should have a lawyer to give you some advice about it – I’m very happy to help you.

DK      All right.  Stay on the life Daryl. We’ll get your details and see if Sally can investigate that further for you. Heather is with us as well with a question for Sally. Hi Heather.

C2       Hi Deb and hi Sally.

DK      Hi Heather.

SG      Hi.  Well. How are you?

C3       Yeah – good. My question is, if a medical report writer omits facts, evidence of witnesses from a report and makes a diagnosis that impacts how a person is treated in a Court and by the public medical system between 2004 to 2018 and beyond. Is that a form of medical negligence and especially if new evidence surfaced in 2017/2018 but occurred in the form of a letter by a lawyer listing that the diagnosis was based on an omitted facts evidence – is there a claim for medical negligence and in addition to that – if a child experienced medical neglect at the hands of a caregiver between 2005 and beyond the course of that medical report being referred to a Court public system – is there a separate claim for that? So basically the medical report writer was referred factual evidence specifically on domestic violence in a Court of Law that it was substantiated – not only was DVO’s provided, but there was a Police versus the other party – which substantiated there was a guilty finding or be it non-recorded as a first defence. There was a guilty finding that caused myself and others to be placed into a refuge for over 12 months. The report writer omitted those facts and alleged that it was imagined.

SG      I’ll just stop you there Heather. I’m a medical negligence lawyer.  I don’t actually deal with family matters and domestic violence. What you’ve just described is a very complex situation. It needs a specialist in the area of family related matters. We don’t practice in those areas at Turner Freeman but I can certainly refer you to the right person – there’s a specialist who I know – he does this work really well – it’s very specialised work and you really need an expert in the area. So it’s a complex matter – it involves lawyers and it involves children – I’m hesitant to give you advice in circumstances where I don’t specialise in the area – I don’t want to lead you astray.  But I’m very happy if you leave your details to point you in the right direction and hopefully get someone who can give you that advice.

DK      Fantastic. We’ll get the help you need Heather. Stay on the line and we’ll get your details. Barbara. What was your question today?

C3       Oh hi there. Look I’ve got this massive – and it’s huge – a stain on my arm from – about the size of your hand – from an iron infusion that was put in incorrectly about 2 years ago and it’s really changed the texture of my skin.

DK      So a stain on your arm Barbara. What is it an actual mark?

C3       It’s a huge dark brown mark on the upper part of my arm from where they – they were supposed to put a cannula in but they missed the vein and all this iron infusion went in under my skin instead of into my vein.

DK      Oh goodness.

SG      Hi Barbara – I’m actually familiar with your case – so not so long ago assisted another middle aged woman – I’m not saying you’re middle aged Barbara – I don’t know your age. But I assisted another woman who had the very same experience. These iron infusions are meant to go into the vein so the cannula is meant to go in the vein – sometimes due to surgical technique normally by the nurse who administers the infusion – they slip up and it goes in your artery instead of your vein and as you said, it stains you  – so you end up with a huge stain and [un]fortunately you can go off and see a dermatologist – you can get some laser treatment – you can help fade the actual stain – but it’s almost impossible to get rid of it completely and in that case I helped the young lady and she successfully sued. So, I’m very happy to talk to you about it further.  I’d need to look at the stain. I’d need to have a look at some photos – so make sure you take incremental photos as the stain fades so that we can map you know the way that it moves along through your skin.  But definitely something that I’m happy to explore with you.

DK      All right. That’s good to hear you’ve had success in that field – Barbara stay on the line too. And Terry – we’ll go to you too. What did you want to know from Sally today?

C4       Hi Deb. I was wanting to know from Sally – if there’s any recourse as I can have – of finding out whether I was dropped at an operation or not.  I went in for a minor surgery in December and the next day I had what they classed as a TAPI necrosis across the base of my spine. I did ask the doctor whether I had been dropped or not and he said to me – did you feel you were falling? and is said – no because I was knocked out.

SG      Well exactly. If you’re under anaesthetic – you can’t feel anything.

C4       …….. But I could fell the – as I said – when I woke up, I couldn’t move properly and it went on and on and I ended up with a bed sore which has now turned into an ulcer.

DK      Oh dear….

C4       I’ve been lying on the air mattress – which kept going down and ah……

DK      Well let’s see if Sally has any advice here. Sally?

SG      Terry.  The operation that you went in for, did it have anything to do with your back?

C4       Ah it did – I had a spinal cord stimulator inserted in my spine. But the necrosis was not caused by that.

SG      No – I understand that. Have you seen an independent spinal surgeon about the necrosis that you suffered?

C4       No.  I’ve been jollying it along at home by massaging it until it….. and it is dissipating now. It’s taken quite a long while.  But as its dissipating, I’m finding that I have a got pain in my……………… so it seems me to believe that I was dropped, but when you ask anybody – nobody knows naught you know.

SG      That’s right – I mean they’re not going to put that in the operation report that you were dropped. But what of course we can do is find out whether the necrosis has anything to do with for example the fall or being dropped.  Spinal surgery is surgery that involves a bit of manipulation and sometimes aggressive movements – its part and parcel and its part of the procedure and sometimes they have to manhandle you in a way so as to get proper reach and operate on you properly, but of course they need to do it you know within proportion. So hopefully Terry that in time your symptoms will resolve completely and you won’t have any ongoing issues. Generally these cases are very hard to bring particularly if you get better which I am sure you will and you won’t have any ongoing symptoms.

DK      All right. That’s good advice. Sally. Thank you so much and it’s always a popular segment and as always we get lots of calls on this topic. Thanks again we’ll talk again soon.

SG      Thanks Deborah.

DK      Sally Gleeson there and if you need any help, 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 Estates and property law and you can get in contact with them directly. Visit turnerfreeman.com.au or give them a call directly on 13 43 63 and we’ll give our $100 Westfield voucher today to Daryl – who called in with that hearing issue.

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