Sally Gleeson medical negligence expert featured on 2GB – 3 November 2020
Sally Gleeson providing Q & A on the 2GB Deborah Knight Afternoon Show discussing Medical Negligence - 3 November 2020
Tuesday 3 November 2020
DK – Deborah Knight / SG – Sally Gleeson – C1,2,3, etc – Callers
Listen to the podcast
Read the transcript below:
DK And today in Legal Matters we are talking medical negligence. You might have had an accident, maybe in hospital, maybe you’ve tripped on a footpath and you’ve been left in pain – you can’t work; you’re wondering “do I have rights to compensation?”. Give us a call, 131 873 and the best call will also be in the running for a $100 Westfield Voucher. Sally Gleeson, who is a Partner at Turner Freeman Lawyers is on the line. She’s here to take your calls. 131 873. Sally, thank you for joining us on this Cup Day. I know that medical negligence – it’s one of our most popular topics when we do Legal Matters every Tuesday, but what kinds of medical negligence cases are the most common?
SG Well, I don’t think there is one category that you can say is the most common. There are many many different types of categories. There are categories that involve for example, failure to diagnose in a timely manner. So, someone has a condition that needs attention and unfortunately it’s missed by a doctor. It doesn’t have to be a doctor, it can be a non-health professional, it can be anyone who’s providing a health service. It can be during treatment – doing the wrong thing and a mistake happening during that treatment and someone suffering an injury that could otherwise have been avoidable. It can be prescribing medication that isn’t suited to the patient. It could be medical negligence from the birth process to either the mother or to the child.
DK Because you’ve pointed out this awful case from earlier this year in central Victoria. A mother left with incontinence for almost 2 years after the birth of her son. She said she got tortured by it all. Is there a negligence case involved in this particular instance?
SG Well there was in that case and my understanding is that the matter settled on confidential terms because obviously there appeared to be some negligence and you know, childbirth is normally, usually pretty straight forward but unfortunately, more often than not, injuries occur from the birth process to the mother and to the child. It’s hard to distinguish which is worse. We generally say that the injuries to the child during childbirth could be a lot worse than those to the mother because children are young; they have very low reserves and they don’t recover as well and in this case obviously the mother suffered horrifically; she had incontinence and it wasn’t due to the normal childbirth process, which sometimes can occur and its unavoidable. This was an avoidable injury unfortunately and the mother received compensation that she obviously deserved.
DK And for someone who thinks they might have a case for medical negligence, what do they have to prove? Do they have to prove that they have suffered physically or financially? What is the sort of – the proof that you have to deliver?
SG The most difficult part of a medical negligence case is not proving whether someone is injured or how badly they injured or how the law is able to compensate them for their injuries, the most difficult part of any medical negligence case is proving number 1 – what went wrong; investigating closely what went wrong and tracking the actual chronology of events as they occur to that particular person – because often you experience something but the proper and full history of what you experience is not known until you look at the records and you look at the actual primary documents that either corroborate what you say or don’t corroborate what you say. So the most crucial part of any medical negligence case is proving that there was in fact negligence and of course the law doesn’t hold someone accountable to golden standards – you know – it’s not about the perfect delivery of services, it’s about what is appropriate, what is reasonable and what is competent. So, we are not talking about delivering the most perfect service, we’re talking about delivering the service that ensures that someone is treated reasonably, appropriately and with proper care.
DK You might have a question for Sally Gleeson from Turner Freeman Lawyers. Medical negligence is her expertise. It’s free legal advice, 131 873 is the number and we also have a $100 Westfield Voucher to give away for the best call. 131 873.
What about if I attend my GP Sally and you know during the course of the consult they miss a serious illness, but then because of that misdiagnosis, it impacts my life down the track, is that medical negligence? or is it just – I mean how much does human error play a part here in the medical sense?
SG That’s what medical negligence is about Deborah. It’s about human error. It’s not about proving someone did something deliberately or did something intentionally. It’s about making a mistake – that’s exactly and precisely what it is. So, the law is about not criticising or penalising someone. It’s about assisting the victim of the medical error in returning them to as best as possible as much as money and financial compensation can do so to the life that they had before they suffered the injury. Now of course, money can’t bring back your health as ___ possible, but what the law tries to do is it tries to provide someone with some sort of financial compensation, so if for example, they are unable to work, their unable to care for their children or care for themselves, they have some financial compensation so that they can get some care and assistance from people who can provide that care. They can sit at home and recover and obtain treatment; in the event they are unable to work and earn a living and so that they are not a burden on society and a burden on their loved ones which a lot of people might think they might become.
DK Alright, let’s go to some calls. Peter has a question for you. Hi Peter. What did you want to know from Sally today?
C1 Good afternoon ladies. Sally, on the 10th of March this year , I had a kidney [a2]. I went into hospital. I was – I had a procedure where a stent was inserted. After that procedure I was given I believe gentamycin and talking – sorry – ah – 2 weeks after that administration of gentamycin, I lost balance and I am now walking around like a – as though I am half drunk – to explain it easily. I’ve seen a neurologist and I’ve had the balance test and they confirm now that my balance has been destroyed – they were partly destroyed I think. I don’t know if there is any way any compensation or retribution can be brought on, but I do – I understand that gentamycin is a regularly used antibiotic but I would have expected that I would have been asked if I had any anti – um – ah – rejection of such a drug – it was never mentioned to me at all.
DK Alright, let’s see if Sally has some answers for you.
SG Hi Peter. Had you ever had any problems with medication in the past? Peter. Were you ever allergic to any medication in the past or had any trouble with medication in the past?
C1 No. Never ever. Never had a…….
SG And has anyone investigated and explained to you why you are the way you are? Is it a natural – is it one of the recognised risks and complications possibly although rare, from this medication or has no-one explained it to you?
C1 Well, no. I was – I received no explanation prior to the administering of it. It was only when I became more out of balance that I made enquiries – seeing my – a neurologist as recommended by my GP. The neurologist sent me in for balance tests and as soon as I mentioned the word gentamycin, the balance test people said – yep there’s you’re problem.
DK Okay. So what are the options Sally? Would you like to speak to Peter further perhaps?
SG I mean gentamycin is a known drug for causing some issues in some patients. It’s about whether it was a reasonable medication to give you – it does have based on case law and the history of patients been given that drug a tendency to cause neurological difficulties in some patients over and above the normal antibiotic stream of medications, so it depends very much on your particular situation why it was given to and it is definitely something you can explore further.
DK Alright. Stay on the line Peter and we’ll give your details to Sally. You might have a case there for compensation. Peter. You had a question for Sally? Another Peter.
C2 Yes. Sally.
SG Hi Peter.
C3 Just wondering. What sort of timeframe is there in – to take legal action if you are a victim of that sort of medical negligence?
SG Peter there’s no set timeframe. There used to be. It used to be 3 years and 3 years was it and it was very hard to get the leave of the Court if you were out of time. But, now the law says that it’s not a set 3 years – it’s more favourable for people who bring claims that are potentially late or out of time. It depends when you discovered that you might have had a claim or when it was reasonable for you to have discovered that you might have had a claim. So the test at law is discoverability and you’ve got 3 years from when it was reasonable to discover that you might have had a claim. So it depends on the circumstances of every case Peter.
DK Alright there you go Peter. And Murray, we’ll try and squeeze you in quickly. Hi Murray. What was your question for Sally?
C3 In September 2018, I had an operation to remove a spur from my heel. I spent up to 2 years now recovering from that problem because the doctor didn’t make sure that I had good lung circulation and I finished up with gangrene in my foot and I came within hours of being dead.
DK Oh goodness. Sally that would be definitely open for investigation.
SG Definitely open, but of course it’s a complicated case Murray. Spur from your heel and I know you took a long time recover, you didn’t have – you might of not had good blood circulation but it was incumbent on your medical professionals to ensure that after your operation, they were doing everything possible to ensure that you were recovering well and that you were getting all the medical attention that you deserved as best as possible to ensure that you recovered well from that procedure. So, obviously it depends very much on the circumstances of your case; what went wrong; who should have picked up on it and why they didn’t.
DK Alright. Good question though Murray. We’ll get you to stay on the line too and pass your details onto Sally. And I will give our voucher today Sally – to Peter who suffered that loss of balance – our $100 Westfield Voucher. Sally, thank you so much for joining us.
SG Thanks Deborah. Bye.
DK Sally Gleeson there – if you want to get in touch with her or any of the lawyers at Turner Freeman, turnerfreeman.com.au or give them a call, 13 43 63.