Medical Negligence Archives - https://www.bpclaw.com.au

Oct 03

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Can I Sue My Doctor for Delayed Cancer Diagnosis?

Imagine being diagnosed with cancer. Now imagine being diagnosed with advanced or terminal cancer and learning that, if it had been detected sooner, it could have been cured.

Imagine the shock. The disbelief. The fear. The anger. After all, this isn’t your fault. You’ve always had regular check-ups, exercised, followed a healthy diet. You’ve always listened to your doctors, because you trusted them. Now you’re wondering if you can sue the doctor(s) who failed you when it mattered most. The answer is: “yes”.

In Australia, mistakes frequently result in the misdiagnosis of colon, lung, cervical and oesophageal cancers. According to one estimate, roughly 12% of cancer cases involve failure of a doctor to take the appropriate medical actions for the patient’s welfare. Patients in this type of situation often sue their doctors. Specifically, they do so when their diagnoses are delayed due to their doctors’ failure to:

require follow-up appropriate screening and testing, such as biopsy, mammography, colonoscopy, CT scan or MRI;
spot common cancer symptoms or follow up with the patient concerning symptoms;
decipher laboratory and test results;
identify a condition as cancer (resulting in misdiagnosis);
acquire necessary patient information and history;
spend enough time with patients to address symptoms;
follow up with patients and the referred specialist(s).

In the scenario detailed above, you could also pursue a medical malpractice claim. In order to be successful, however, you must generally prove:

the failure to diagnose your illness caused your suffering;
the doctor’s negligence was the immediate cause of your physical and/or mental harm;
the treatment provided by your doctor did not meet Australian standards.

You should also be aware that there are certain criteria that are specific to a medical malpractice claim based on delayed diagnosis. In Tabet v Gett, the High Court established that a plaintiff in a medical malpractice case could not win based solely on the argument that there was a possibility of a better result if the doctor wasn’t negligent. What this means in a delayed diagnosis case, is that you must prove that there would have been a significant difference in the treatment rendered and the result given a prompt identification of the disease.

For instance, you would have to present evidence that earlier identification and intervention would have kept your cancer from spreading to the extent that it has. Or you would have to prove that an inoperable tumour, for example, could have been excised if the doctor had diagnosed your condition sooner. You may also prevail if you could show that the chemotherapy or radiation therapy you must now undergo wouldn’t have been necessary if you had originally received a prompt and proper diagnosis.

Another important distinction is that in most medical malpractice cases, you can seek compensation for all past, current, and future costs based on the losses you have incurred. This may include but is not limited to compensation for pain and suffering, loss of income due to the inability to work, the inability to work, medical expenses and so forth. In a delayed diagnosis case, you may also seek compensation for these losses, however the amount ultimately awarded if you win your case will be based on the expenses that can be directly attributed to the delay.

Having said that, applicable laws are constantly evolving and tend to be complicated. Because the outcome will largely depend on your unique circumstances, it is important to obtain proper advice if you are suffering from cancer that was not diagnosed promptly and you’re now considering legal recourse.

If you are thinking about suing your doctor, you should also be aware that there are strict deadlines (usually three years, depending on the jurisdiction) for doing so. Because the clock starts upon discovery of the delayed diagnosis, it is important to seek legal advice as soon as possible so you don’t lose your right to sue. Your life is already at stake so don’t leave anything to chance. Contact us today.

Mar 11

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Medical Negligence: The Commonly Asked Questions Answered

If you have suffered from medical negligence, then it’s likely you have plenty of questions needing to be answered. In this podcast, Sydney Personal Injury Lawyer, Courtenay Poulden addresses those questions and reiterates the importance of getting legal advice very early.

Podcast: Play in new window | Download

Dan:	Every year thousands of people undergo surgery or other types of medical interventions and it’s not surprising, giving the sheer volume, that mistakes or oversights occur. What happens when they do and, more importantly, what can you do about it? Well, today I’m with Courtenay Poulden, an Accredited Personal Injury Law Specialist and Multi-Award Winning Lawyer. Courtenay, what should people personally do in these types of matters?
Courtenay:	Well, it’s promptly getting advice quickly. A lot of people are under the misconception that every failed medical procedure is due to negligence but they need to find out whether there’s something the doctor or the hospital or the nursing services have done that really is more than just one of the normal consequences of a medical procedure.
Dan:	How do they find this information? Is it, do they access reports or what do they do?
Courtenay:	The first step’s to get hold of the records from the various doctors who are involved or hospitals that have been involved, have them reviewed initially by lawyers such as us, and then ultimately refer them off to an independent doctor who can comment on the performance of the doctor or the hospital involved.
Dan:	Courtenay, is it the case that prior to your first consult with a person that may have suffered a potential medically negligence matter that they should acquire all those files through freedom of information first and then bring them to you?
Courtenay:	No, no, no, we’ll do all that for them. What we need people to do is contact us, let us have a general discussion and meet with them to talk about what’s happened. Then, if we decide that the case is worth investigating we’ll go ahead and get all of those for them.
Dan:	What about time frames? Now I know generally personal injury matters are very, very tight. In medical negligence matters, generally is there a time frame?
Courtenay:	It’s pretty much the same. They’re governed by the Civil Liability Act which is a general rule imposed at the three year limitation period. That’s not three years necessarily from the date of the medical procedure or hospital admissions, that’s three years from the date that you know you’ve got a case, when your cause of action is what the law calls discoverable. When you’re at that stage your three years start and it’s pretty strict from then on so it’s not the sort of thing to mark around and put out of your mind and think you can come back to it three or four years down the track.
Dan:	How long do these matters typically take? If there’s an action when would people start to see a damages payout?
Courtenay:	Well, that depends pretty much on the complexity. There’s some pretty easy cases where if you went in the hospital and you had to have your left leg operated on and they did your right, that would be a pretty easy case because there’d be no dispute about fault and those types of things. Mostly in medical negligence sort of cases the issues are pretty complex. The reason for that is that most people go into hospital or go and see a doctor when they’ve already got a problem. What we’re talking about is the extent to which that problem has been made worse or you’ve got other additional complications.
	It’s normally not as easy as some other cases where someone starts all afresh without any injuries like a car accident. In these sort of cases you’ve got to take into account the fact that you had a problem in the first place, that’s why you went to the doctor. That’s why it makes it a little bit more complex than your sort of run of the mill court cases or compensation cases.
Dan:	These cases don’t always involve surgery do they? I suppose that by and large that they take up a fair proportion of them but …
Courtenay:	Well, I wouldn’t say that. I think for the by and large it’s not surgical type cases.
Dan:	Okay.
Courtenay:	The ones we most commonly see involve failure to perform surgery or failure to intervene when there’s been investigations done that should have indicated to a doctor to do something or where the investigations weren’t done at all because the doctor didn’t think that that test was necessary. Rather than it being so much the result of some active procedure it’s often a failure to act. Pretty common cases, for example, are late diagnosis of cancer. You go along to a doctor or a hospital, have a number of tests done which you show later down the track should have been an indication of the early incidence of cancer, for example.
	If that’s so, that’s the failure of anybody to intervene an act that might be the negligent act.
Dan:	I suppose a take on message, Courtenay, is for people to get advice very promptly on these matters.
Courtenay:	That’s certainly the case because records should be obtained early. If there’s witnesses who are not doctors such as other family members who were present, their statements and evidence become vital so, yeah, there’s no reason to delay at all. On the contrary, you should get onto it quickly so that you also get some peace of mind as well, I think that’s pretty important for most people who are suffering sickness or illness.
Dan:	In terms of BPC, a free initial consult and no obligation consultation?
Courtenay:	Absolutely. Yeah, absolutely we will see someone. We will make a decision from an early … We do a bit of our own which doctor type inquiries from people we do know. We speak to doctors who we’ve had in cases over the years, just if to get a general idea whether a matter’s worth investigating. If so, yeah, we’ll do all those investigations at no cost. Of course, if the matter goes ahead they’ll be a fee arrangement, if it doesn’t it’s nice to have been able to help you and best wishes.
Dan:	Courtenay, thanks for joining me.
Courtenay:	My pleasure.

Aug 29

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Want to Assess damages in Nervous Shock Claims. Contact BPC Lawyers Today.

Assessment of damages in Nervous Shock Claims

BPC Lawyers have successfully acted for many plaintiffs in respect of nervous shock claims pursuant to the provisions of the Civil Liability Act 2002.

Nervous shock claims can be brought by a person suffering pure psychiatric injury following circumstances that the defendant ought to have foreseen to be capable of causing a person of normal fortitude to suffer a recognisable psychiatric illness if reasonable care were not taken.

In order to succeed in a nervous shock claim, it is necessary to obtain medical evidence diagnosing a recognisable psychiatric condition which must be more than a normal grief reaction.

Section 30 of the Civil Liability Act 2002 limits the recovery for pure mental harm arising from shock as follows:-

“Section 30(2)

The plaintiff is not entitled to recover damage for pure mental harm unless:

the plaintiff witnessed, at the scene, the victim being killed, injured or put in peril, or
the plaintiff is a close member of the family of the victim.”

A reference to a “close member of the family” is limited to a parent of the victim, the spouse or partner of the victim, a child or step child of the victim, or a brother, sister, half-brother or half-sister, or step brother or step sister of the victim.

Strict time limits apply to claims for personal injury including nervous shock claims. A 3 year limitation period is imposed in relation to commencement of legal proceedings which runs from the date of the relevant event.

It is often difficult to assess the amount of damages in nervous shock claims. BPC Lawyers successfully acted on behalf of a mother who suffered nervous shock as a result of the traumatic events surrounding the birth of her child. As a result of medical negligence, the plaintiff’s son is profoundly disabled. BPC also acted on behalf of the child in separate proceedings successfully achieving a substantial confidential settlement to cover his extensive lifetime care, medical treatment and therapy needs and other associated losses.

The decisions of the Supreme Court of New South Wales and the New South Wales Court of Appeal in relation to the mother’s claim are summarised below to provide some guidance in relation to the assessment of damages in nervous shock claims and personal injury claims for reduced earning capacity.

Sorbello v South Western Sydney Local Health Network [2016] NSWSC 863

This case concerned the psychological impact of the defendant’s negligence during the birth of the plaintiff’s son who was profoundly disabled and requires lifetime care and support due to his birth related injuries. The plaintiff pursued damages for nervous shock including economic loss as she had been unable to return to employment following the birth of her significantly disabled son.

At a very late stage of the proceedings, the defendant finally admitted breach of duty of care. It was left for the Court to consider the extent of damage suffered by the plaintiff and the quantum of damages arising from the negligence.

Both parties tendered medical evidence and the psychiatric and psychological experts participated in a joint conclave and produced a joint report prior to the trial. These experts also gave evidence concurrently during the trial. The plaintiff relied on expert evidence from Dr Stephen Allnutt, psychiatrist and Ms Rafaela Luca, psychologist. The defendant relied on evidence of Dr Lisa Brown, psychiatrist. Ultimately, the trial judge preferred the opinions of Dr Allnutt and Ms Luca and rejected the expert opinion of Dr Brown whom the trial judge found under appreciated the magnitude of the plaintiff’s injuries.

The plaintiff claimed damages for economic loss arising from her psychiatric injuries. The defendant submitted that the plaintiff had made a choice not to return to work so that she could care for her disabled son and that it was open to her to employ carers and return to some form of employment. This issue was addressed by lay evidence and the medical experts. Dr Allnutt and Ms Luca gave evidence in respect of the plaintiff’s preoccupation with her disabled son, difficulty concentrating on other tasks and her related anxiety and inability to trust others to care for him. The plaintiff lacked trust in the medical profession and felt strongly that she had to be available to her child when required. There was a constant risk that her son’s condition would deteriorate at short notice including vulnerability to seizures and hospital admissions requiring a high level of vigilance and constant concern and attention. This heightened, ongoing stress was not conducive to recovery and any work environment would require flexible work practices and a supportive employer.

The trial judge found that there was no issue that the plaintiff would have returned to her pre-injury full time employment at the expiration of her 12 months maternity leave but for her psychiatric condition. The trial judge found that with appropriate treatment and support, the plaintiff could probably work part time but practical issues limited her return to work. The trial judge considered that the plaintiff would require at least 18 months of treatment and then she assessed the plaintiff’s working capacity to be no more than 50%. The trial judge then considered the realistic prospects of the plaintiff exploiting her theoretical earning capacity and concluded that those prospects were effectively non-existent. Accordingly, the trial judge determined that damages for future economic loss should be assessed on the basis that the plaintiff would not be able to exploit any residual earning capacity before retirement age. Significantly, despite the fact that the Court found that the plaintiff had a theoretical earning capacity, no evidence was led by the defendant of the availability of work which would meet her capacity. Accordingly, the plaintiff received a full award for future economic loss and loss of superannuation calculated on the basis that she had no ability to exercise any residual earning capacity for the remainder of her working life.

South Western Sydney Local Health District v Sorbello [2017] NSWCA 201 per Simpson JA with Macfarlan and Meagher JJA agreeing

The defendant appealed the above decision of the Supreme Court of New South Wales. The New South Wales Court of Appeal has provided a helpfully detailed headnote, summarising the appeal as follows:-

“The respondent gave birth at the Bankstown Hospital to a son, Joseph, in 2008. Joseph was born with profound disabilities, such that his life expectancy is significantly shortened, and he will require lifetime care. While a claim on behalf of Joseph was settled on confidential terms, the respondent claimed damages in the Supreme Court for personal injury, in the nature of mental harm, suffered by her as a result of the negligence of the appellant. Liability was admitted by the South Western Sydney Local Health District and damages were awarded to the respondent under various heads, including non-economic loss, past economic loss, and future economic loss.

The appellant appealed the award of damages on two primary bases. First, the appellant challenged the primary judge’s acceptance of the expert opinion evidence of Dr Allnutt and Ms Luca (a psychiatrist and a psychologist retained on behalf of the respondent) over that of Dr Brown (a psychiatrist retained on behalf of the appellant) as to the causation of the respondent’s condition. The second basis asserted that the primary judge was in error in assessing the respondent’s residual earning capacity by casting an onus on the appellant to establish what employment remained open to the respondent. Further, it was contended by the appellant, that the primary judge ought to have taken the approach outlined in Malec v J C Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20 which concerns the assessment of the chance that circumstances other than the defendant’s negligence would, in any event, have brought about the injury of which the plaintiff complains.

In relation to the first basis, the Court was satisfied that the primary judge was not in error in accepting the opinions of Dr Allnutt and Ms Luca over that of Dr Brown. The Court considered that the appellant had not advanced sufficient reasons to prefer the opinion of Dr Brown, particularly given that the weight of the remainder of the evidence did not support that opinion.

In addressing the second basis, the Court affirmed the approach taken by the primary judge in assessing future economic loss. In particular, the Court affirmed that once a loss of earning capacity has been established by a plaintiff, the onus of demonstrating a failure to exploit any residual earning capacity lies on the defendant, taking into account all of the circumstances that apply to the plaintiff. No error was demonstrated by the appellant in this regard.

The Court held that assessment on Malec principles was not appropriate, there being no issue that the appellant’s negligence was the cause of the respondent’s condition, and it was not part of the appellant’s case that there was a chance that the respondent would, without the appellant’s negligence, have suffered disabling psychiatric injury.”

In light of the above, the appeal was dismissed on the following basis:-

The primary judge was not in error in preferring the evidence of Dr Allnut and Ms Luca over that of Dr Brown.
The primary judge was not in error in not applying the approach discussed in Malec v J C Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20. The chance that the respondent would have developed the injury was accounted for in the conventional allowance made for “vicissitudes”.
The primary judge was not in error in casting an onus on the defendant to prove that the plaintiff could exploit any residual working capacity.
There is not a sufficient basis to conclude that the award of damages to the respondent should be reduced due to any settlement reached on behalf of her son.

BPC successfully acted on behalf of the plaintiff in relation to the above trial in the Supreme Court of New South Wales at first instance and was successful in the New South Wales Court of Appeal in having the appellant’s appeal dismissed.

BPC Lawyers has also successfully acted for many plaintiffs suffering nervous shock and psychiatric injuries as a result of negligence. If you believe you have a claim for nervous shock, we can offer a complimentary consultation to discuss your options and to provide legal advice in relation to your prospects of success in pursuing a claim. We confidently back ourselves to represent you with a “no win, no fee” guarantee.

Please do not hesitate to contact our offices in order to discuss a potential claim.

Kate Henderson

28 August 2017

Mar 24

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What Goes On At BPC

I thought it might be a good time to acquaint some of our readers with the type of work that we are doing here at BPC.

When people talk about compensation Lawyers they think injuries at work and on the road. We are certainly a major law firm in compensation claims of those types.

We do however act in a wide variety of matters and I thought it might be useful to give readers a note of some of the cases we are currently involved in:-

We are acting for a lady who suffered severe injuries when she fell on a boat whilst whale watching in the Great Barrier Reef.
We are acting for the family of a baby suffering from Cerebral Palsy which we argue was caused due to asphyxia during the birth process which could have been prevented had the doctors paid greater attention.
We are acting for a young man who unfortunately lost one of his limbs after an explosion of a keg on licensed premises.
We are acting for a client who suffered injury when she was directed by her personal trainer to undergo a type of fitness training that was beyond her capacity resulting in her suffering a very significant hip injury.
We are acting for a lady who suffered a leg injury when she slipped and fell on Council premises which had become very slippery as a result of patrons bringing wet umbrellas and shoes through the entrance. The Council employees did not provide any warning signs or matting to provide a safe floor surface.
We are acting for an English gentleman who was riding on a donut behind a speed boat off an island in Queensland when he was thrown outside of the wake and became entangled in the donut causing him injury.
We are acting for a young lady who was playing in an indoor netball competition. The court had previously been used a gymnastics organisation who had left chalk on the floor causing her to slip and suffer an injury to her knee which required surgery.
We are acting for a well known performer who suffered a bowel perforation following a simple hospital procedure. It was not recognised in time leading to her getting sepsis which has had serious consequences to her overall health.

These examples are given to illustrate that there are wide ranging circumstances in which a client may have an entitlement to compensation. We are experienced in all areas of public liability and medical negligence and would be happy to deal with any enquiry on the usual “no win, no fee” basis.

Courtenay Poulden

24 March 2017

Jan 20

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Whose Fault, Doctor or Hospital?

The Supreme Court recently had occasion to look at the respective responsibilities of a hospital and a treating specialist when a patient tragically died in Newcastle Private Hospital.

In this case the patient died after undergoing elective surgery. The deceased’s family brought a claim for their nervous shock and for the loss of the financial benefit of the deceased.

In the case of Stefanyszyn -v- Brown & Newcastle Private Hospital, the specialist doctor admitted that he had breached his duty to the deceased. He filed a Cross Claim arguing that the hospital was at fault as well.

What happened to the deceased is that a loop of suture material was inadvertently looped around the deceased’s bowel resulting in a blockage and the onset of infection.

The specialist said that there were a number of steps that could have been taken by the hospital staff during the recovery process which should have been followed and communicated to him so that he could properly assess the deceased’s condition.

There are some very important comments in the Judgment of Justice Schmidt about the way in which a hospital and its specialist doctors have a responsibility to take reasonable care for a patient. The basis of a hospital’s duty arises out of the hospital/patient relationship. There is a distinction between the duty owed by a hospital which functions as a place where medical care facilities are provided for the use of physician and his patient, and that of a hospital which functions as a place where a person in need of treatment goes in order to obtain treatment provided by the hospital. The treatment provided in an Emergency Department of a hospital provides a common place example of the latter. In the former case, the patient’s use of the hospital is the result of an arrangement made between the hospital and the physician by which the physician is granted hospital privileges. In such cases, the hospital is not responsible for the negligence of the physician. The hospital is only responsible for those employed to provide the services the hospital provides to the patient.

In the result it was concluded that the duty which the hospital owed the deceased extended not only to the nursing and paramedical services it provided her, but also to the services which should have been provided to her by all members of the clinical team it assigned to help the specialist.

The Court found that both the specialist and the hospital each independently owed a duty of care to the deceased. While those duties no doubt overlapped given the way that the care was administered, the respective duties never passed from one to the other.

Justice Schmidt ultimately found that the hospital failed the deceased in a number of respects and apportioned liability between the specialist and the hospital.

We are regularly called upon to advise in hospital negligence cases and this decision provides some guidance on how Courts will examine cases where there is fault in more than one party.

Courtenay Poulden

Oct 30

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Update: The Truth About Trasylol

The Truth About Trasylol – Trasylol could be responsible for death, stroke, heart attack or kidney failure, you should act quickly.

Following the airing of the news and current affairs program, Sunday Night, on 12 October 2014, BPC Lawyers have received a number of enquiries from people wondering whether the administration of Aprotintin (known commonly as Trasylol) may have contributed to the loss of a loved one or resulted in stroke, kidney failure or heart attack.

We encourage all those who believe they may have been affected by the administration of Trasylol to make contact with our firm. There are significant cost benefits associated with being a client of a firm that represents other clients in similar circumstances. These benefits arise as a result of the sharing of costs associated with investigating proceedings.

If you or a loved one suspect Trasylol could be responsible for death, stroke, heart attack or kidney failure, you should act quickly. Please contact BPC Lawyers on 8280 6900 to discuss your case with a specialist solicitor or email: info [at] bpclaw.com.au.

About BPC: BPC provides people with workers compensation claims, motor accident claims and public liability claims. BPC has its origins in a legal practice started by Barry Beilby in 1975.

Oct 22

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Medical Negligence & the Inquest into the Death of Luke Wood

We are fortunate in New South Wales to benefit from some of the most highly trained medical practitioners in the world.

However, incorrect diagnoses and negligently performed medical procedures do sometimes occur. The consequences can be catastrophic.

The recent Inquest into the death of Luke Wood, a Sydney bodybuilder, and former Australian bodybuilding champion, is a timely reminder of this fact.

On August 20, 2011, Mr Wood underwent a kidney transplant. Three days later, on August 23, his body began to show symptoms that it was rejecting the kidney. On August 26, despite the risk of kidney rejection, he was discharged in circumstances that are reported to have been allegedly premature.

Ultimately, on August 31, 2011, Mr Wood was rushed to the Hospital after he collapsed at home. He died at Sydney’s Westmead Hospital following cardiac arrest which was reportedly caused by the “massive hemorrhage” in his abdomen following his transplant. With the Inquest continuing, the circumstances of his death are not yet fully apparent. Evidence, however, given by his treating practitioners is reported to have indicated that not only was he required to wait over four hours for a CT scan, but that the emergency physicians that treated him did not have access to his complete medical records as they were locked in a secured room and inaccessible.

The Inquest continues.

If you or a loved one has suffered as a result of medical negligence, you should contact BPC Lawyers on 8280 6900 to speak with a specialist in medical negligence.

About BPC: BPC provides people with workers compensation claims, motor accident claims and public liability claims. BPC has its origins in a legal practice started by Barry Beilby in 1975.

Oct 24

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Multiple Causation in Medical Negligence Claims

Elayoubi v Zipser [2008] NSWCA 335

This case is a very good example of an unusual outcome that may occur in the event of two defendants having failed to warn a patient of a particular outcome (multiple causation).

In this case, the mother of the plaintiff had undergone a classic caesarean section with respect to the birth of her first child. This meant that she should not have been allowed to proceed to vaginal delivery of her second child (the plaintiff). The mother could not remember the advice (if any) that had been provided to her following the birth of her first child. At the time of her second pregnancy (with the plaintiff many years later) she attended upon another obstetrician and hospital. Each of them negligently failed to enquire of the first hospital about the nature of the first caesarean section delivery.

The first defendant failed to record the nature of the operation that was clearly a classic caesarean rather than a lower segment caesarean section (that would have permitted vaginal delivery). If only one of these sets of defendants (ie. the first hospital as opposed to the second hospital/obstetrician) was negligent, then the plaintiff would succeed. However, curiously, if both of them were negligent then the plaintiff, on a conventional approach, might not have been able to establish causation for the reason that the first hospital’s negligence in failing to record the procedure could not be said to have led to any damage in the event of the second defendant having failed to make an enquiry about the nature of the first caesarean section delivery. Basten JA suggested in such circumstances, on the “normative” approach, both defendants would be liable.

The plaintiff suffered spastic quadriplegia and intellectual disability and it was common ground that his condition was the result of deprivation of oxygen during the birth process, consequent upon a uterine rupture. The plaintiff failed at first instance in the Supreme Court of New South Wales but succeeded on appeal. Judgment was ultimately entered in favour of the plaintiff against the first, second and third defendants in the sum of $7,281,319.00 plus costs.

This summary is provided by Kate Henderson, a senior solicitor at BPC lawyers. Kate is an accredited specialist in personal injury law and has a particular interest in medical negligence claims including birth injury claims. Kate has acted for a number of plaintiffs suffering cerebral palsy as a result of adverse birth events. Kate has successfully acted for plaintiffs suffering cerebral palsy in New South Wales, interstate, in the United Kingdom and Singapore. For more information or to speak with Kate, please contact us on (02) 8280 6900 or kate@bpclaw.com.au.

About BPC: BPC offers legal services such as workers compensation, motor accident compensation and claims for public liability. BPC has its origins in a legal practice started by Barry Beilby in 1975.

Aug 12

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Medical Negligence in Allied Health Care

In 2010, Beilby Poulden Costello was instructed to act for a plaintiff who had a claim against her chiropractor.

She alleged that the treatment that she was given in 2008 was performed negligently and claimed compensation from the chiropractor.

Facts
Our client had a breast augmentation procedure in 2005 during which implants were inserted. She was very happy with the results and had no problems until she met the defendant.

Our client worked in a job that required her to have her head bent down and her neck extended – therefore she suffered occasionally from a sore neck and back. In 2008 she attended a chiropractor. The chiropractor took no medical history and asked no questions about prior surgery. He asked where her pain was, noted that in a chart, performed a couple of manipulations and sent her home.

Later that evening, our client noticed that one of her implants appeared to have been pushed out of place. When she consulted the surgeon who had performed the procedure, he confirmed that the implant was displaced, and that she would need surgery to correct the displacement.

Our client could not afford the surgery, but very much wanted to have her implant corrected. She then decided to seek legal advice about whether the chiropractor was negligent in his treatment of her.

The legal process
Our client got an expert opinion from a chiropractor who stated that her treating chiropractor was negligent in failing to take any sort of medical history from her, and in performing the manipulation he did. Our client filed proceedings in the District Court of New South Wales in 2011, and despite various attempts, was not able to settle the case, and so it proceeded to trial in 2012.

The hearing
This case turned on both expert and lay witness evidence. There was a dispute over which manipulations were performed, and whether they were negligent – this became a case as much about the facts as about the experts.

The plaintiff gave evidence herself and her then husband also gave evidence. This was directly contradicted by evidence the defendant himself gave.

Expert witnesses included a chiropractor for both the plaintiff and the defendant, a plastic surgeon for the defendant, and the plaintiff’s treating plastic surgeon.

The decision
Ultimately, the Court was persuaded that the defendant did not take a proper history, and that he should have. The Court was further persuaded that if he had taken a proper history, he should not have performed the manipulations that he did. The Court found that the defendant performed the manipulations as described by the plaintiff, that the defendant breached his duty of care to the plaintiff and caused her injury, and that compensation should be awarded.

The plaintiff was awarded the full cost of the corrective surgery as recommended by her treating surgeon, and pain and suffering. For pain and suffering, she was deemed to be worth 25% of a most extreme case. Overall she was awarded $51,137.50 in compensation. Additionally, the defendant was ordered to pay all of the plaintiff’s costs from approximately one year before the trial, because the plaintiff had offered to settle her case for an amount less than she was awarded by the Court.

Lasting effects
This case received a lot of publicity at the time of judgment, and it was reported in newspapers around the world.

This case has become a landmark decision in personal injury circles, and is particularly important because of what the plaintiff was given for her pain and suffering.

About Beilby Poulden Costello: Beilby Poulden Costello offers legal services such as workers compensation, motor accident compensation and claims for public liability. Beilby Poulden Costello has its origins in a legal practice started by Barry Beilby in 1975.

Mar 25

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Compensation Hopes For Faulty Hip Implant Victims

Medical giant Johnson & Johnson is under mounting pressure to settle a class action launched against it by 4500 Australians who were fitted with the company’s infamous metal-on-metal hip replacements, after a US victim was awarded $8.3 million.

Lawyers representing the Australians fitted with the articular surface replacement (ASR) hip implants will return to court this week buoyed by the US case – which also revealed that Johnson & Johnson executives were told the implants were faulty but did not act.

Fairfax Media understands the Australian legal team may ask the Federal Court on Wednesday to order Johnson & Johnson, and the designer of the implants, DePuy International, to attend a week of mediation in May in a bid to work out a settlement.

The ASR hips, implanted in more than 90,000 people across the world, began causing problems within six months of the first operations in the mid-2000s.

Australian national registry data showed last year that 44 per cent failed within seven years.

It has emerged that the high-carbon metal ball in the device was grating against its socket and sending metal fragments, rich in cobalt and chromium, into the bloodstream. Thousands of people fitted with the device were found to have symptoms associated with cobalt poisoning including severe pain, partial loss of vision and hearing, depression, lethargy and heart problems.

In December 2009, Johnson & Johnson discontinued supply of the implants in Australia. It wasn’t until August 2010 that DePuy International issued a worldwide recall. Patients were then forced to undergo major surgeries to remove the devices and implant safer ones.

But many have seen little improvement, suggesting that they have suffered permanent damage from the heavy metals that entered their bloodstream.

“When I look back on the letters I wrote to my surgeon in 2009 about the pain I was experiencing, I realize nothing’s changed,” said 72-year-old Peter Russell, one of the members of the Australian class action. “I can’t sit, can’t use my hands properly, I’m unstable on my feet, I can’t sleep – it wakes you up,” he said. “It’s affected every aspect of my life.”

The members of the Australian class action received a major boost earlier this month when a jury in Los Angeles ordered Johnson & Johnson to pay more than $8.3 million to Montana man Loren Kransky.

The case – the first of more than 10,000 similar legal battles set to take place – sets an important legal precedent, paving the way for a cascading series of damages pay-outs that is likely to run into the billions.

Rebecca Jancauskas from Shine Lawyers, one of three firms running the Australian class action, said the US decision would put pressure on the company’s Australian arm to consider a substantial settlement.

“It sends a very strong and clear message to Johnson & Johnson,” Ms Jancauskas said. “This is a clear case where they’ve put profits ahead of people and it’s a clear case where they need to compensate those who they’ve wronged.”

The US case has revealed internal documents that showed company executives were told by US surgeons that the design of the implants was faulty. Some doctors urged the device maker to slow or stop selling the implant, but these warnings were largely ignored.

Lawyers for the Australian victims claim that those fitted with the implants were “unwitting participants in a large unofficial trial being conducted by DePuy and its agents and affiliates.”

Johnson & Johnson and DePuy have said they will appeal against the US decision.

Lawyers in the Australian case said the company “deployed an international and interdisciplinary team to design the implants, which used up-to-date scientific and technical knowledge, and subjected the implants to an extensive testing program over several years”.

They say all hip replacement or resurfacing devices carry risks, and surgeons were made aware of this.

Should the case proceed to trial, a crucial element will be whether the victims can argue for exemplary or aggravated damages – damages awarded to punish and deter companies from future wrongdoing. Mr Kransky failed in his bid for punitive damages, which could have brought a payout in the tens of millions.

Another stumbling block could be Australia’s extremely tough damages regime, which places strict limits on how much money a plaintiff can be awarded. “It’s those who are in the slightly less severe category who could be most affected by our unjust damages regime,” said lawyer Ben Slade from Maurice Blackburn, who are also part of the class action. Mr Russell’s wish is for Johnson & Johnson to acknowledge its wrongdoing.

Article Source: www.smh.com.au

About BPC Lawyers: BPC offers legal services such as workers compensation, motor accident compensation and claims for public liability. Beilby Poulden Costello has its origins in a legal practice started by Barry Beilby in 1975.

Feb 15

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Family Wins $63M Compensation From Johnson & Johnson

The family of a US girl who lost 90 per cent of her skin after suffering an allergic reaction to pain relief medication has been awarded $63 million in compensation.

Samantha Reckis was seven years old in 2003 when she took “Children’s Motrin”, a pain reliever manufactured by a subsidiary of Johnson & Johnson, to treat symptoms of a fever, the New York Daily News reports.
But the Massachusetts girl had an extreme allergic reaction to the medication and developed toxic epidermal necrolysis, a skin disease which can be fatal.
She suffered kidney, liver and reproductive damage, went blind and lost 90 per cent of her skin.

After six months in hospital she left weighing only 14kg, but the family’s lawyer Brad Henry said the girl’s ordeal did not end there.

“When they finally were able to wean her off pain medications and take out the ventilation, within a couple of weeks she had a stroke because of the liver damage,” he said.
“They had to drill through her head to relieve the pressure.”

In a lawsuit filed six years ago against pharmaceutical giant Johnson & Johnson, the family alleged the medication’s bottle was not clearly labelled with warnings of its risks.

But the pharmaceutical company defended the product as safe and appropriately labelled.
Toxic epidermal necrolysis is an extremely rare condition, but Mr Henry said that did not diminish the company’s responsibility.

“All we’re saying is that if parents are in a position to give a discretionary drug to their child, they should at least be given the option to know whether this is a good idea or not,” he said.

Source: WHDH, New York Daily News

Medical Negligence