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Sally Gleeson Q & A on Medical Negligence Law 5 February 2019

Sally Gleeson Q & A on Medical Negligence Law 5 February 2019

Tuesday, 5 February 2019

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CS – Chris Smith /SG – Sally Gleeson /C1,2,3, etc – Callers

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CS         Yes our legal matters segment while all of our attention in the last couple of days has been the final report for the banking royal commission another really important report has been handed down. This one from the productivity commission looking at Government Funded Health Services. Now the findings of the report are pretty shocking to say the least and you may have heard a little about it in the news in the last 48 hours. 23 patients were forced to have unnecessary hospital procedures between 2016 and 2017 because medical instruments were left inside their bodies. While more than 430,000 were either poisoned, injured or suffered from an infection whilst in hospital care. 430,000 get out of here. It is alarming and I wonder if you had been in a situation where something has gone wrong with a treatment or if you have had a medical instrument left in your body. Gee I would do my block before I sort of went straight back to the doctor, you would just be angry. Wouldn’t you? and then on top of that you think you go to hospital to get better but you contracted an infection, which has been a long running problem given the strength of viruses that exist and bacteria that exist in hospitals right around Australia.  So what rights do you have? What avenues are there for you to seek compensation and that is what we can talk about in our legal matter segment today and as always I have a $100 Westfield voucher to give away to one of our listeners between now and the top of the hour. Our $100 Westfield voucher to one person with the question to Sally Gleeson. Turner Freeman Lawyers provide a range of specialised legal services including compensation and negligence law, asbestos litigation, superannuation and disability claims, family and employment law, wills and estates and property law and Sally Gleeson is a partner in the Turner Freeman Sydney office specialising in medical negligence litigation but don’t be restricted by this aspect of medical negligence if you have a call, a question, a query, want some advice get some free advice from Sally Gleeson right now on the open line 131873. Thank you Sally very much for coming in.

SG       Thanks Chris.

CS         Happy New Year to you by the way

SG         Happy New Year to you too

CS         Where did that go?

SG         Very quickly.

CS         We were saying goodbye in November and in about 5 minutes ago. I cannot believe. This report the productivity report was handed down almost a week ago, but it did not get anywhere near the coverage it should of. What exactly was the productivity commissions report looking into?

SG         Well the productivity commission is an advisory body to the government and it contributes to the government by providing independent advice and information to the governments. So it has to look at the welfare of patients in public hospitals and in a public hospital setting and it provides its report and provides the statistics and hopefully those things will be taken into accounts so that accountability measures are implemented and the treatment afforded to patients improves so that their safety improves and their welfare improves ultimately and their health.

CS         23 people who are forced to have extra procedures because of an instrument or some material was left inside them. The procedure to remove these items, is that given to them free.  Or are they having to pay for that too.

SG         Well they are in a public hospital so I assume they go back and assuming they have not lost faith in the public hospital system. So the patient has the option. It depends on how it was found and what was found and in what setting.

CS         Have you dealt with client’s that have had that happen to them?

SG         I have and it sounds horrendous, which it is and obviously the shock of it is something that patients have to deal with. As a preamble Chris to all of us is something that I need to say.  Medical misfortune in a hospital setting is a reality that many need to face. Humans are fail able and majority is unfortunately unavoidable. The impact however when it happens in a medical setting can be far more consequential than in any other setting because you go in for treatment to improve you and you come out with something that is totally different to the treatment that you were hoping to receive. You are often in a far worse position then when you went in.

CS         Not to mention psychologically.

SG         Psychologically and we can never ever fail to mention the market and crucial service to our society that hospitals and medical professionals provide. However, when there is a medical incident whether is translates legally to a case or not involves care analysis.  Its complex and you have to look at the situation case by case and that’s my job and you have to do it with a degree of caution. Now everyone has a right, by virtual fact that they went into a hospital and they received treatment, they have a right to seek a lawyer’s advice about whether there is a compensable case. Now whether that translates legally it depends on whether their case meets the legal principles and that is something that has to be looked at very carefully.

CS         Now let’s start at the 23 people who have forced to have extra procedures because they have had an instrument or material left inside them. Will these patients be entitled to extra compensation?

SG      If what happened to them by virtual of the instrument being left inside them caused an extra or additional injury. So it worsens their outcome significantly so as to cause them additional injury and if that occurred. Yes, for sure. So, if the law has changed since 2002 there are thresholds if a patient went in for a procedure and a medical instrument was left inside them and then they underwent another procedure to remove that medical instrument and suffered no additional damage or harm by virtual of that which is rare, generally speaking.

CS       Do you think it is rare?

SG       Absolutely. So yes they have rights at law and those rights can be exercised.

CS       and when you seek compensation such as this does it different from state to territory to territory to territory and state to state.

SG      Yes, it depends where the incident occurred in NSW the law differs. The law substantially the same, but their entitlements, the patients’ entitlements to compensation by way of damages differs. There are different thresholds, which they will need to abide. In essence the same.

CS       See I find this an incredible thing. Once you worked out that you have I do not know let’s just make it up a pair of tiny scissors in your left hand side of your chest or something and you want to take action and get compensation for the drama you are going through and the extra bleeding and that sort of stuff but you also want to deal with the surgeon to correct the procedure there is a conflict of interest.

SG       Absolutely. and often.

CS       So what does the patient do?

SG      in the patients are in the hands of the public system are in a quandary because they do not choose the doctor they go back to, they go back and they say this is the issue and it is investigated and there at the wrecking of any doctor who decides to do the procedure.

CS       So it could be the same one.

SG      Yes absolutely it can be the same one and you do not have a right and you cannot be picky in that situation you want the thing out. You want to be fixed and want to be rectified.

CS       I want to talk about infections and poisoning and some injuries on the surgical table, but I want to go to caller John who has a question for you. John, Sally Gleeson is listening.

Caller 1 –  John

SG         Hi John

C1         I have had an experience where I had a broken finger and the little tip of the little finger bone broke away at the top and attached to tendons in emergency they were told to split the finger that was done in a sort of about at a 50-degree angle and in fact that caused more harm than good and as a result I had to have an operation to attach that bit of bone back to the finger and they used cay wire correction I think it is.

SG         Yes

C1         They put wire on your finger and hold it together. I was under local and I was watching the whole time through the x-rays as they were doing it and several shocks and they ended up cutting my finger open and screw the piece back together with a screw and subsequent of that.  The person that was the operator who was doing this surgeon was under supervision because it was a public hospital under the supervision or a surgeon. A qualified surgeon and as a result of it in 2 days later I was in agony with a massive infection in that finger and I took the cover off it and it was fusing puss and everything so I went back and maybe they could give be antibiotics before I left the hospital.

CS         You’re kidding

C1         and as a result it all healed eventually after I had the antibiotics and as such and I was on the mend and I ended up with a stiff finger which does not cause me any problems

CS         It does not operate the way it should

C1         It was a public system. Yeah I had not lost any functionality, I still causes me a bit of pain when I am on the kayak, but otherwise I let it go and say it is the public system for you 

SG         You are very lucky John and you are very brave and I can tell you that many people would come out of it saying for the most part you’re ok. What you have been through is quite horrendous and the thought of doing this type of procedure under local anaesthetic the mind boggles and so you are very lucky to come away with it in the state you are in and thank you for sharing your storey.

CS         Thank you John and must take a break and we will come back with Sally Gleeson and our legal matters segments courtesy of Turner Freeman.  Legal segment brought to you by Turner Freeman the Turner Freeman number by the way of 134363 turnerfreeman.com.au 134363. David you want to ask about the role family can take in terms of negligence. Sally is listening go ahead.

Caller 2 David

C2       Just a quick one, where we had a situation where their mum died after the operation the doctor failing to sew her up properly and she bled internally. There was an inquest and the coroner and they confirmed this. Can the family take action against obviously the patient can’t?

CS       So she passed away David from that did she?

C2       Absolutely and she went for a simple operation and bled to death internally and she had private cover and she had the best care but it was one of these things.

SG      Absolutely David, yes that is who has a right to seek compensation on behalf of the person who passed away and it won’t be a claim for that person it would be a claim for the family members because they have lost that person. It is for the compensation to relatives claim and there has to be a familiar relationship between the person who passed away and who ever would like to bring a claim. They have a claim in their own right for any psychiatric injury that they have suffered and then they have a right to claim on behalf of the family members who are dependent on that person who passed away. So for example if a mother passes away her children and her spouse. So absolutely 100%.  

CS       Ok David thank you. So these 430,00 patients that end up poisoned or infected and injured there is what is a raft of what is basically a score card whether they are qualified for compensation or not is there?

SG      Absolutely, the legal tests are at law and the number 1 is to provide negligence and number 2 is whether that person has an injury that is worthy of compensation.

CS       Chris go right ahead

Caller 3 – Chris

C3       Hi, my wife had a colonoscopy about some years ago now and she is having trouble with her bowel and I was wondering if it was an ER recall.

SG      Has she had the area investigated again after the colonoscopy Chris?

C3       Yes, they rushed her to hospital and the hospital performed the surgery and she has been back 2 or 3 times but in the last 6 to 8 months she been having trouble but it was some years ago and whether there is any limitation or how long

SG      Well we do not know what the problem is, so the law operates from the time you discover that there is a cause of action and there is a 3-year limitation period from that date

CS       3-year limitation

SG      Yes correct, but until you discover when it occurred if anything occurred time does not start to run. So the main thing that needs to be done is it needs to be investigated preferably with a private doctor and you are not getting anywhere with the public hospital system by the sounds of it. I recommend that your wife see a GP and obtain a referral to see a specialist probably a gastroenterologist or colon rectal surgeon.

CS         If you need any further help Chris please stay on the line and we will give you Sally’s number to get a bit more advice from her. I thank you for that and I have the $100 Westfield voucher for you. All yours

C3         Thank you

CS         Stay right there and we will put you back through and Sally we have run out of time and it is an interesting area and no doubt we will cover it again and as you say at the beginning but it is rare, but it something but the victims that go through this deserve some compensation.

SG         Thank you Chris.

CS         Sally Gleeson from Turner Freeman.