Why be a health & medical lawyer?

1. LAWS6090 – Health Law
Negligence and Patient Safety
Presented by Catherine Henry
Principal, Catherine Henry Lawyers | Newcastle – Sydney – Port Macquarie
University of Newcastle
29 July 2021

2. Catherine Henry Lawyers pay our respects to Aboriginal
and Torres Strait Islander peoples as the traditional
owners of this country and acknowledge that we are
meeting on land of the Worimi and Awabakal people. We
will play our part to ensure reconciliation and equal
access to quality legal representation for all Australians.
Acknowledgement of Country

3.  Newcastle based firm with small offices in Sydney and mid-north coast
(Port Macquarie)
 What we do?
 Heath & Medical Law
 Wills, Estates & Elder Law including Aged Care Law
 Family Law
 Crime & Traffic
 Large part of the firm’s work is in the area of health and medical law
Who are we?

4. Why be a health & medical lawyer?
 Traditionally capital city work – increasingly less so
 Health law is much more than medical negligence – see course outline
 CHL has a diverse health law practice including:
 Heath care professionals – regulation/disciplinary work
 Mental health law
 Pregnancy and reproductive rights
 Inquests
 Aged care – remedies in common law (negligence/intentional tort) &
consumer law
 Public health law – eg COVID issues and, of course,
 A significant medical negligence practice

5. Medical negligence – how much is there?
 Huge numbers of iatrogenic injury
 Numbers of patients who sue -let alone obtain comp’n - is low
 Most avoidable outcomes are not acted upon
 Lack of available data in Australia
 “1 in 10 will experience a mishap” (Medical Error Action Group)
 20,000 individuals estimated to die each year (ABC World Today, 2015)
 50,000 individuals will suffer permanent injury as result of medical error
(ABC World Today, 2015)

8. Running a medical negligence claim
 Breach… causation… damage
 Law is relatively straightforward but…
 The medicine is far from straightforward in the majority of cases
 Each case turns on unique facts and circumstances
 Med neg lawyers need either basic medical knowledge or familiarity
(or not be phased by medical issues and be able to work in a
medical environment)
 Identify a case theory – adapt that to evidence
 In-house clinical experience (or past clinical experience) is valuable)
and common place

9. Investigation
 Most difficult and challenging part of matter
 Triage enquiries – exercise judgement re viability i.e. breach/causation
and damage
 Obtain detailed facts from client
 Obtain and then review clinical records
 Prepare short form chronology
 Develop provisional case theory

10. Expert review
Choosing an expert
 Record the experts who have assisted in previous matters
 Develop an expert register
 Try not to use panel or defendant orientated doctors
 Colleague network – solicitors & barristers
 Medical literature – research
 Letter of instruction – careful drafting/mindful of issues of breach and
causation
 Brief barrister in complex matters

11. Commencing proceedings
 Expert evidence
 Breach evidence must address s 5O Civil Liability Act 2002
 Causation – often the most difficult element to prove
 Damage
 Consideration of non-economic loss
 Other heads of damage
 “Worst case” scenario – s 16 Civil Liability Act 2002
 Is unlitigated approach appropriate?
 Otherwise…. draft a statement of claim
 Role of barrister
 District Court v Supreme Court

12. Running the claim
 Requests for further and better particulars
 Liability issues
 Quantum issues
 Preparing quantum
 Responding to defence medical evidence
 Medical appointments re damage
 Case management

13. Resolving the claim
 Culture of settlement
 Hearings are rare if case well prepared
 Early invitation to settle once case fully prepared
 ISC v mediation?
 Length of court process – District v Supreme Ct

14. Process of mediation
 Court ordered
 Agreement by parties
 Choosing a mediator
 Who participates?
 Apologies

15. What type of claims?
 Obstetric/birth trauma
 Injuries to child eg cerebral palsy
 Stillbirth/neonatal death
 Gynaecological injury to mother
 Hospital care
 Surgical error
 Post operative management
 Accident & Emergency
 Elective surgery
 Bariatric surgery (weightloss surgery)
 Cosmetic surgery

16. What type of claims (cont’d)?
 GP issues
 Misdiagnosis /failure to diagnose
 Failure to refer ie for investigation or specialist management
 Failure to treat
 Aged care
 Poor standard of care
 Pressure wound management/falls
 Psychiatry ie at risk patients
 Failure to detain under Mental Health Act
 Failure to prevent injury whilst detained patients

17. Case study – birth trauma – injury to the child
 Most complex of all medical negligence cases
 Sub-specialty - obstetric birth trauma
 Birth took place at Maitland Hospital
 Labour mismanaged in multiple respects
 Child born with birth asphyxia leading to hypoxaemia and acidaemia
 Later diagnosed with cerebral palsy of the spastic quadriplegic type – a
severe type of cerebral palsy
 Case resolved for very large sum
 Child died age 12 – severe cerebral palsy often decreases life
expectancy due to significant impairments

18. Case study – birth trauma – continued
 Cases such as these take a long time to prepare
 And a long time to proceed through the Supreme Court
 Senior and junior Counsel briefed – junior Counsel specialises in obstetric
negligence
 Multiple experts on breach and causation which were both very much in issue
 2 x obstetricians (from Sydney)
 1 x paediatric neuroradiologist (from the UK)
 1 x neonatologist (from Qld)
 Multiple experts on damage
 24 hour care
 Special needs
 Non-economic loss – “most extreme case”
 Parents ran nervous shock claims due to psychological injury

19. Case study – birth trauma – injury to mother
 Maternal birth trauma now “a thing” – as awareness increases, we
are seeing many more cases
 Historically focus was on the health of the baby with no attention
given to injury to mother
 Govt birthing policy has been focused on need to “natural” delivery
 NSW Health policy currently under review – women need
information about risks of birthing

20. Case study – birth trauma – continued
 Case involved traumatic birth of first child in regional hospital – was
left alone without foetal monitoring for 4 hours when 3 cm dilated –
given IV syntocin to augment labour - student midwife found client to
be 9 cm dilated and baby in breech position – prepared for c-section
 Urgent revision to vaginal delivery – episiotomy – no anaesthesia –
perineal tears and hip injury diagnosed in post partum period –
severity of orthopaedic injury indicated the force applied during
delivery – significant ongoing disabilities resulting in wheelchair –
could not work again

21. Case study – surgical error
 General surgeon in the South Coast of NSW recommended a total
thyroidectomy to a woman in her 50s after a suspicious nodule was found
in her thyroid gland
 No pathology arranged
 Woman’s laryngeal nerves were severed
 Now suffers severe breathing difficulties and significantly impaired capacity
to speak and swallow
 Independent expert said surgery not indicated and woman should have
been referred to specialist thyroid surgeon for appropriate management
and advice
 No real issue as to breach and causation
 Demonstrates lack of volume practices and skill in regional areas

22. Case study – ED – catastrophic injury
 Maitland Hospital case
 15-month-old boy had a heavy blow to the head – had just taken his first
steps
 Head injury required appropriate neurological assessment – not done -
discharged home
 Brought into hospital again 2 days later, presenting with symptoms of
bacterial infection - no septic workup – again discharged
 Hospital staff failed to diagnose left occipital and mastoid fracture and
developing meningitis
 No real issue as to breach but causation in issue
 The boy suffered permanent brain damage

23. Case study – ED – meningitis
 15-year-old girl with some intellectual delay and mild autism was treated
by GP for ear infection
 Became more unwell - was referred to John Hunter Hospital
 She developed bacterial meningitis, which was not properly assessed or
treated, and remained in hospital for 8 months
 Independent expert said girl not properly assessed nor treated bad
outcome avoidable
 Evidence for plaintiff
 ED physician
 Infectious diseases physician
 Paediatrician
 Neurologist
 Plaintiff has spastic quadriplegia and is unable to vocalise

24. Case study – avoidable death at mental health unit
 18-year-old girl committed
suicide while admitted to Calvary
Mater Mental Health Unit in
Newcastle
 An investigation report found she
should have been observed
every 15 minutes
 Mental health nurses were
conducting observations from
their desk at the nurse’s station
 Nurses were subject to
disciplinary action and had
registration revoked
 Procedures re 15-minute reviews
reinforced as a result of case

25. Case study – cosmetic surgery
 Political campaign under way in NSW to better regulate the cosmetic
surgery “industry”
 Turf war? by plastic and reconstructive surgeons
 GPs with little or no specialist surgical training hold themselves out as
cosmetic surgeons
 Particular local GP practising as a cosmetic surgeon – now in Chatswood
 During a facelift procedure, facial nerves were severed leading to facial
disfigurement, permanent nerve damage and psychological sequalae
 The surgery had been carried out in the GPs rooms with assistance
provided by his receptionist
 Liability was admitted by the defendant
 High NEL and economic loss
 The matter settled at mediation for a significant sum

26. The case of cosmetic surgeon,
Dr Les Blackstock

27. Patient safety -
Does medical negligence litigation improve quality?
 Aggrieved patients choosing to sue following adverse outcomes
 Health provider being held accountable
 “Not about the money”
 Promoting health and safety
 How does health care litigation improve quality?
 Impose sanctions where breaches of standards have occurred
 Deterrent signal of litigation
 Role of tort law

28. Patient safety
 Not about the money but losses and injuries can be extremely significant
 Death of loved one
 avoidable death
 death before time
 manner of death
 nervous shock (psych injury) claim
 claim for loss of support incl financial
 Significant injury
 Pain and suffering
 Loss of income
 Inability to perform activities of daily living
 Medical and treatment expenses

29. Questions?

30. Thank you