KSL Medico-Legal Monitor Autumn 2008

NSW Health Inquiry to review systemic issues in hospital system  

The NSW govt’s Special Commission of Inquiry into systemic problems in the state’s hospital system began its work at the end of January 2008.

The Inquiry was called when Deputy State Coroner Carl Milovanovich recommended a full and open inquiry at the conclusion of an inquest into the death of 16 year old girl, Vanessa Anderson, who died at Royal North Shore Hospital in November 2005 shortly after receiving a blow to the head from a golf ball.

Sydney barrister Peter Garling SC is leading the Commission of Inquiry. He has the power to compel witnesses to appear and answer questions. Public hearings are ongoing and are being reported in the print media. The Commission’s Terms of Reference can be accessed via the NSW Department of Health’s website. The Commission’s work and timetable for public hearings can be accessed here.

The Inquiry is due to report to the Government by 31 July 08.

Victorian Government presently reviewing state’s abortion laws

The Victorian Attorney-General, Rob Hulls, has received the final report of the Victorian Law Reform Commission with options for decriminalising terminations of pregnancy. During the course of the LRC’s work, more than 500 submissions were received and 30 meetings were held with people interested in abortion law reform.

Click here to read the Terms of Reference.

Click here to read the Information Paper produced by the Victorian Law Reform Commission. 

Click here to read recent article by Catherine Henry of our firm on the current legal status of abortion in Dec07/Jan08 edition of Vive a magazine for business women.

Case reports

Case Report: King Street Lawyers successfully conclude surgical error case for Gosford man.

Medical lawyers have successfully concluded a strongly defended medical negligence matter run in the Newcastle District Court against a Gosford surgeon. The reserved decision of Judge Sidis was delivered on 22 April 2008 and followed 5 days of evidence during October 2007.

The plaintiff, William Brown, had surgery for bowel cancer at the Gosford District Hospital in March 2003. The responsible surgeon, Dr Richard Simpson, was assisted during the surgery by an unaccredited registrar who was an advanced trainee. In the course of the surgery, the plaintiff’s left, and only functioning, ureter was damaged and auretero-colic fistula developed. Treatment and repair of this fistula was problematic and extended over a lengthy period.

Judge Sidis found that the ureteric injury was the result of inadvertence in the use of a diathermy probe but that the inadvertent nature of the injury did not preclude a finding of breach of the relevant duty of care. Judge Sidis referred in her judgement to the recent decision of the NSW Court of Appeal in Dobler v Halverson which found that section 50 of the Civil Liability Act provides a statutory defence to a claim of professional negligence and found that the defence had not been established.

Click here to read the full judgement.

The case is now the subject of an appeal.

Case Report: King Street Lawyers settle claim for breach of infection control policies

Medical lawyers from King Street Lawyers recently settled a significant claim relating to a failure of infection control measures.

The plaintiff was admitted to a major teaching hospital in the Hunter following a trans-ischaemic attack. Due to complications following the stroke, he had bilateral stents inserted directly into his brain and was admitted to the ICU. In the ICU, he contracted a number of infections, the most serious being pseudomonas which is a bacterial infection commonly found in water and soil environments. At the time of his admission to the ICU, there was another patient also in the ICU who had suffered from repetitive pseudomonas infections also in the same unit.

It was the plaintiff’s case that the Defendant hospital had failed to enforce its internal infection control procedures and that there was a causal connection between this breach of duty and the plaintiff contracting the infection. The infection led to a major brain injury and consequent disability. It was also the plaintiff’s case that the hospital had not diagnosed the pseudomonas infection in a timely fashion and that this may also have contributed to the plaintiff’s loss. Determining the loss the plaintiff suffered was further complicated by the fact that the he would have been left with some degree of disability as a result of the stroke in any event.

Studies done locally suggest that about 6% of patients acquire an infection in hospital and that the incidence of hospital-acquired infection may be increasing. Strategies to prevent both the development of antibiotic resistance and spread of resistant organisms are necessary features of hospital management. Preventive strategies include prudent antimicrobial use, timely handwashing, aseptic technique, short hospital stays, minimal use and early removal of invasive devices. For further reading see here.

Case Report – King Street Lawyers successfully sue Canberra Hospital – Does Hospital owe a duty to provide a public patient with a choice of surgeon?

Medical lawyers from King Street Lawyers recently successfully sued the Australian Capital Territory which at the relevant time administered Canberra Hospital on behalf of a female client who had complications arising from a vaginal hysterectomy performed at the hospital.

The case, Brus v ACT & Heaton was heard over ten sitting days and the decision was delivered after the death of the presiding Judge, the late Justice Connelly.

One of the interesting aspects of the case was the fact that the surgery had been performed by a Registrar at that Hospital: a common occurrence even though the plaintiff had believed that the surgery was to be performed by a gynaecologist whom she had consulted prior to the surgery. There was much evidence during the trial concerning the Registrar’s level of experience, training and skill and ultimately the Hospital was found to be negligent for, amongst other things, allowing the Registrar to perform the operation which was beyond her level of skill and ability.

Case Report - NSW Court of Appeal considers new ‘peer acceptance test’ in case involving Cessnock GP

A decision of the NSW Court of Appeal has confirmed the manner in which section 5O of the Civil Liability Act 2002 (NSW) (the “peer acceptance test”) is to be interpreted.

The facts involved in this case are as follows. Kurt Halverson, a young man, had been a long term patient of a Cessnock GP, Dr Dobler, for a period of 6 years. It was alleged that during the period of treatment , Kurt had presented with symptoms that should have caused a reasonably competent GP to make a referral to a cardiologist for assessment. On 11 February 2001, Kurt suffered a cardiac arrest and hypoxic brain damage leaving him with catastrophic injuries.

Dr Dobler’s legal team relied upon evidence from three independent GPs to argue that the standard of care was appropriate.

The Court of Appeal rejected the defendant doctor’s submissions on the application of this very important provision in the Civil Liability Act 2002. It found instead that the section does not define the content of the duty of care which applies in professional negligence claims and operates as a defence. This argument has been relied upon in claims run subsequently by medical lawyers from King Street Lawyers.

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