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Sally Gleeson providing Q & A on the 2GB Afternoon Show discussing medical negligence law

Sally Gleeson providing Q & A on the 2GB Afternoon Show with Deborah Knight discussing Medical Negligence Law 25 August 2020

Tuesday, 25 August 2020


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


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Read the transcript below:

DK   All right this time every Tuesday, we do talk Legal Matters and today it is medical negligence. So you might have been given a wrong diagnosis.  Maybe you have had surgery and it left you with more pain than you had before.  And what if something goes wrong during an emergency? Who is actually responsible? Do you have rights? Do you have possibilities for compensation?  Well if you’ve got a question, call now.  131 873 and as always we’ve got our $100 Westfield voucher for the caller with the best question in Legal Matters. Sally Gleeson is a partner in the Turner Freeman Sydney office and she specialises in medical negligence litigation. She’s on the line for us now. Sally, thanks for joining us.

SG    Thanks Deborah. How are you?

DK   Good. Good. Now medical negligence. It doesn’t always happen in a hospital does it? There’ve been recent cases in Queensland where paramedics where under the spotlight.

SG    That’s right. We often think about the duty of doctors in medical negligence, but the law of medical negligence extends to other health professionals, so no non-doctors – so professionals such as pharmacists or physiotherapists or chiropractors and in this case, ambulance officers.  And the law applies in the same way to these non-medical professionals and that is that they have to exercise professional skill and judgment when they treat patients.

DK   And this case the paramedics were accused of using the incorrect medication?

SG    That’s right. So this is a case that went initially to the lower Court, so the first Courts. The family of the woman who eventually passed away lost and then they took the case to the Court of Appeal and they one. Then, very recently in August, they lost in the High Court. So, this is a very tragic case. It very much outlines how the law is applied based on judgment and interpretation by Courts and really its ultimately a decision for the Courts as to what is appropriate or not appropriate and look at the medical evidence and they look at the expert evidence and they make a decision as to whether they think in this case the ambulance officers did the right thing or did the wrong thing and were negligent.

DK   And it’s an issue that as you say, doesn’t apply just to that hospital setting. It can go beyond any medical setting in which you’re getting treatment.

SG    Absolutely. Yes.

DK   All right. Let’s get some calls. We’ve got some on the line already. Mark has called in first up. Hi Mark.

Caller 1 –  Mark

C1     Hi Deb. How’re you going?

DK   I’m good thanks.

C1     Hi Sally.

SG    Hi Mark. How are you?

C1     Good thanks. Just a quick question. My wife 12/13 years ago collapsed. She had an aneurism in the spinal cord which she had – the first operation was [embolism] and then it didn’t work and then she got scar on the middle – down her back – about 12 inches where cut and lasered it out. I now we signed all of those forms and that saying things but ever since she’s been in a wheelchair – her left leg is dead. We have been waiting 2 ½ years for a bleed to the spine to get fixed and she’s getting curvature of the spine, so we can’t do that until they put screws in – I’ve just don’t know where to go.

SG    Yeah sure – I’m very sorry to hear about that Mark. I understand what you’re saying. I mean she had a very serious condition which is an aneurism. It needs to be treated almost immediately.  And so it depends very much on the chain of events. So what happened? Who she saw? What they did? Whether the embolism did the right thing and whether it’s knocked it on its head or whether she needed other treatment that was more invasive. So, it depends on the chain of events. It depends on the history. I’d really need to talk to you obviously and find out exactly what happened and if there was a delay, and if the delay contributed to your wife’s condition now which is from what you say, she’s quite disabled, it’s something that we can explore further and look into.

DK   If you can stay on the line Mark – we might pass your details on to Sally to see if you can explore that further because it’s obviously taken a huge toll. And broadly speaking too Sally, what kind of things can be considered medical negligence?

SG    So medical negligence ranges from misdiagnosis. So you attend upon a doctor – you’ve got a condition and it’s not diagnosed in time or it’s diagnosed as something else – incorrectly prescribing a medication – conducting an operation in inappropriate ways – so you go in for a surgery, a surgical technique that’s applied by the doctor is not within the standard of care and it’s – causes you an injury. Of course it doesn’t just mean that someone has to make a mistake, the medical negligence is not about someone making a mistake, it’s about that mistake causing you to suffer an injury. Sometimes mistakes are rectified so we find out that the doctor made a mistake and the doctor or someone else attends to that mistake quite quickly and if then that’s attended to and it saves you from the trouble that you otherwise would have had and you recover almost completely, even though there was a breach or there was negligence, if you don’t have an ongoing injury or a long-lasting injury, you can’t actually claim any compensation – so it’s a combination of things.

DK   All right – let’s get to another call. Steve has an issue with an operation Steve? What happened?

Caller 2 – Steve

C2     Ah well a few months back, I had to attend hospital regarding kidney stones and the night before the procedure, I was administered 10 times the volume of antibiotics that I was supposed to get – so they overdosed me. So the next morning when they had to perform the procedure, they couldn’t administer an anaesthetic because of the overdose – so they went ahead with the procedure anyway. It was without anaesthetic.

DK   Oh goodness.

C2     Yeah – goodness isn’t exactly the word I used.

DK   I bet.

SG    It’s Sally here – I’m wondering. So they went ahead with the procedure but they couldn’t administer the anaesthetic, so how was it that they went ahead with the procedure without the anaesthetic?

C2     They just went ahead with it…

SG    Okay.  And you felt excruciating pain or what condition were you in when they went ahead with it?

C2     I – most certainly wasn’t very comfortable.

SG    I’m sure.

C2     And you know – their excuse was that we can’t administer the anaesthetic because of the overdose.

SG    I understand. So they didn’t delay the procedure which they might have had to do to save you the trouble of undergoing the procedure in a lot of pain.  I’m sorry to hear that Steve.

C2     The procedure had to be – gone ahead with because of the nature of the condition – so they had to do it but the thing is that they couldn’t administer any pain relief.

SG    Yeah – and I mean and obviously that caused you distress and if that distress is long lasting and it still causes you, you know – it brings back memories and you suffer from memories that caused you distress and that’s something that we can explore. But as I was saying before Steve, with medical negligence, even if they make a mistake, the mistake has to have a long lasting permanent impact on you. You can’t actually claim compensation pursuant to the law unless it’s a permanent impact and that impact affects you – so you have ongoing pain and suffering – it affects your ability for example to work – it affects your ability to do things around the house that you otherwise would have done – you need ongoing medical treatment – so those are the things that we look at to see whether the claim is viable or worth your while pursuing. So it’s something I can discuss with you obviously.

DK   All right, Steve, we’ll get your details and see if we can explore that further. But you might have an issue – 131 873 – Sally Gleeson is with us from Turner Freeman Lawyers. Paul’s just called in with a question for Sally. Hi Paul.

Caller 3 – Paul

C3     Yeah. G’day. How are you going?

DK    Yeah good. What’s your question for Sally?

C3     Sally – look there – I had an operation on my eyes quite a few years – well about 3 or 4 years ago. Anyway, I’ve always worn glasses for long vision – my short vision was perfect. After the operation, I had blurred vision – you know I would look at the moon for instance sake and have a half a moon hanging off at me.  Anyway, I went and saw the doctor again about it and he said “Look, you know we can have another go at it.  I just lost faith in having another go at it. So I still will glasses now and my short vision has suffered big time – now I have to use magnifying glasses to read plans or whatever.  Yeah – so the result wasn’t anywhere near what I was expecting that’s for sure.

SG    Yeah. And so have you seen someone else about the results? To find out exactly what went wrong or what might have gone wrong during the operation Paul?

C3     No. No. Look I’ve – you know – I like this guy and sort of ……. he basically you know – said look – we can have another go at it – but I’ve always worn glasses and so I thought – No I’ll just get back to wearing glasses again – but my short vision is very disappointing because I used to be able to read perfectly, now I can’t.

SG    You can’t…..

C3     I try and look on a line for instance sake and you know…. I need glasses to do that which I never had to do.

SG    Yeah – and that’s one of the unfortunate things about sometimes the advice that patients receive – they’re not fully informed of all the risks, complications, potential side effects. I mean, informed consent is a very important part of medical treatment. Someone needs to be told precisely what they’re in for before any treatment – particularly treatment for example for a glaucoma which is something that you need, but it’s not super urgent. Sometimes it’s something that you can think about for a week or two or a month or two. So, I mean Paul I understand what you’re saying and I understand that you’ve lost faith and trust and that you’re hesitant about seeing the doctor, but there is never any harm in seeking a second opinion and that’s what I would do if I were a patient and I was unhappy with the outcome, I’d see someone else for a second opinion and often that second opinion can shed light on what happened and guide you about any further treatment that you might need.  Now talking specifically about the doctor, I know it’s really hard, sometimes you don’t want to do anything because you like your doctor, but this is about you and it’s about your loss and about your quality of life – so it’s definitely something I’m happy to talk to you about and explore.

DK   Yeah – good advice. Well, stay on the line Paul – we’ll get your details. And David – what did you want to know from Sally today?

Caller 4 – David

C4     Oh yeah – Hi how are you?

DK   Yeah – good.

C4     Um – yeah – I – late last year had knee surgery – so basically I’ve flogged my knees pretty hard over my life and I was getting to the point where I just thought I’ll go see a surgeon and see if something I can do just to get a bit of life out of them and both of my knees were a problem and I said – let’s just concentrate on the one that gives me a little bit more grief than the other one and I’m pretty sure – basically I think the surgeon may have went off the scans that I brought in and the reports that came with those scans. I’d been researching basically cartilage base procedures etc because I thought that’s what I had. He told me straight away that I didn’t – that I had a pressure problem on my knee – releasing a tendon would help – fairly easy surgery – in and out – up and about in a few months. As part of that it’s agreeing to have an arthroscope [sic] – during the arthroscope [sic], he basically has changed his mind on what’s wrong and realised that I do actually have cartilage damage and he’s removed a bunch of it.

DK   Oh dear – what would be the option for David there Sally?

SG    So David – I mean obviously I have to understand exactly what happened and I’ve got to look at the scans and your records to find out exactly what you had before – but just based on experience having dealt with orthopaedic based cases, generally speaking, very very generally speaking and I’m no doctor – doctors act on symptoms in cases involving orthopaedic problems or injuries and your symptoms are what direct a doctor’s path for the treatment that that doctor might think is reasonable or suitable for you.  So, from what I’m hearing, you had an issue – you opted for a certain type of surgery – you trusted that that was the type of surgery that you’d receive and something else was done. So, it’s very much dependent on what the outcome was and I’d like to know how you are now. How are you feeling now? And what’s your daily life like? I mean – are you happy now with the outcome or are you in constant pain or what’s the outcome now?

C4     No –I’m worse – so basically his explanation for removing cartilage was that he found cartilages were lose that can cause locking in the knees etc – and I said “I never told you I had that symptom” – and ………

DK   So if that pain is long term then, that fits in with that criteria?

SG    Yes – so I mean if you have long term pain because of surgery that was inappropriate or inadequate or not justified, then that’s something David that I am very happy to explore with you.

DK   All right – we might get your details David – if you can stay on the line – we are out of time unfortunately and we’ll pass you on to Sally to explore some further ……….. Sally – unfortunately we didn’t get time to get to all of the calls – but we will talk again about medical negligence in the not too distant future.  Thank you so much for joining us.

SG    Thanks Deborah.

DK      Sally Gleeson there – we will give David our $100 Westfield voucher today – we do give away that voucher every week and if you want some help – Turner Freeman Lawyers – they give you a range of specialised legal services including compensation and negligence law, asbestos litigation, superannuation and disability claims, employment law, Wills and Estates, and property. And we’ll talk Legal Matters again this time next week.