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HEALTH AND MEDICAL NEGLIGENCE LAW AUSTRALIA
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FOR PATIENTS & THEIR FAMILIES: We are offering an obligation-free legal referral service which provides patients and their families access to solicitors/lawyers with expertise and extensive experience in Australian health and medical law, medical negligence, personal injury and compensation. Our panel of solicitors can provide you with OBLIGATION-FREE LEGAL ADVICE. If you would also like legal representation, the lawyers whom we refer to may be able to offer you a Just complete the Contact Form on the right of this page, and a lawyer will be in touch with you as soon as possible. BREAKING NEWS:
NSW: Health Service apologises over childbirth death Health authorities have made their first official apology to the family of Rebecca Murray, the 29 year old mother who bled to death after the birth of her third child at Bathurst Base Hospital. The Bathurst mother died from multi-system organ failure at Nepean Hospital following a Postpartum Haemorrhage in June 2007. The inquest into her death is being heard at Westmead Coroner's Court. In a written statement to the Court, The Greater Western Area Health Service, Bathurst Base Hospital and their staff offered the Murrays "our heartfelt apologies for their loss". In it, they recognise "there were policies, procedures and practices also in place at the time that were sub-optimal and contributed to the tragic outcome". Source: SMH online, 01.06.09
NSW: Sydney man loses leg from hospital infection Gregor Gniewosz, 31, attended Liverpool Hospital in May 2007 for treatment to his foot, but contracted the potentially fatal MRSA bug. But, he wasn't told he'd acquired the infection until four months later. Doctors at Sydney's Prince of Wales Hospital were forced to amputate his left leg below the knee in March this year. NSW Health Minister John Della Bosca late on Wednesday said a wheelchair and artificial leg had been ordered for Mr Gniewosz and work would be done to modify his house. "I'd like to say that I'm sorry this happened to Gregor and his mother," Mr Della Bosca told reporters. Source: SMH online, 06.05.09
QLD: Amputated finger is lost and surgery delayed Wayne Rogerson, 42, of Manly West, severed the middle finger on his left hand in a workplace accident at Rocklea and waited in agony for an ambulance. After 90 minutes, he decided to get himself to hospital with the digit packed in ice. His frustration continued at Princess Alexandra Hospital where he was prepped for surgery three times in two days. On each occasion the operation was postponed because of other emergencies. Source: Courier-Mail 05.03.09
NSW: Brain tumour allegedly misdiagnosed According to ABC news 29.01.09, Brendan Burns, 24, presented to Hay Hospital last Sunday with a bad headache, was transferred to Griffith Base Hospital and discharged early on Monday morning. Later that morning he returned to Hay Hospital and was flown to Sydney's St Vincent's Hospital, where he died last Tuesday evening from a brain tumour allegedly misdiagnosed. The matter is now under investigation by the HCCC.
Federal: Australia's ailing health system QUEENSLAND hospitals have the nation's worst published record for killing or maiming their patients through botched operations, medication errors and other mistakes The Australian Commission on Safety and Quality in Health Care reported last year that sentinel events more than doubled nationally in 2006-07 compared with a year earlier. But of the 187 deadly or damaging lapses in judgment or procedure made public on 29.01.09, Queensland accounted for over a quarter of the national total. The next worst offender was Victoria (45), which was slammed by its Auditor-General last year for failing to adequately monitor hospital blunders. Some 135,000 patients - or one in 10 public hospital patients - in that state had endured a medical mistake, with more errors believed to have gone unreported. South Australia, with 36 sentinel events, was next in line, followed by NSW (32), Western Australia (15), the ACT (7), the Northern Territory (2) and Tasmania (1).
NSW: Patient allegedly injured in Campbelltown Hospital The SMH reports that Rachel Hale was expecting to have routine surgery to have her appendix removed, however when she woke from the surgery, she was told part of her bowel had also been removed because of a "lump". However hospital insiders have alleged that Mrs Hale's bowel was ruptured because she fell from the operating table while under general anaesthetic just prior to the operation. When she hit the floor, a trocar - a hollow sharp cylinder used to introduce cannulas into blood vessels - that was inserted in her side had sliced through her bowel. It could have killed her. They allege the fall also caused a minor head injury. The insiders claim there were no staff in the operating theatre when she fell and they allege there has been a cover-up by officials. Source: SMH online 19.12.08.
NSW: "Dob in a Doctor" legislation - Record number of doctors dobbing in their colleagues Since the Dr Reeves debacle, the NSW government has legislated that doctors must dob in their colleagues whom they suspect of serious misconduct and drug abuse. For the first time, fellow medics and employers are the biggest source of tip-offs to the NSW Medical Board about doctors who are unfit to practice. Data in the NSW Medical Board's annual report reveals a 59% rise in colleague notifications in 2007/08 compared with the previous year. Source: news.com.au 14.12.08.
VIC: Public hospital medical errors on the increase in Victoria The Department of Human Services' annual Sentinel Events report shows that 28 people died in preventable circumstances. This year 102 serious medical errors were reported, compared with 82 in 2006-07. Source: HeraldSun 13.12.08.
S.A: Queen Elizabeth Hospital found negligent The Full Court of the Supreme Court of S.A has awarded Ms Dayna Curtis $288,846 in medical negligence compensation plus payment for legal costs, because staff at the QEH failed to diagnose her bacterial meningitis, resulting in Ms Curtis becoming partially deaf. Source: AdelaideNow online 9.12.08.
NSW: Patient awarded $7.2 million in compensation for cerebral palsy caused by negligence The NSW Court of Appeal last week found that Kaled Elayoubi's catastrophic injuries were caused by the negligence of obstetricians at two hospitals. Mr Elayoubi's cerebral palsy and other brain damage occurred when he was starved of oxygen after his mother's uterus ruptured during birth. Mr Elayoubi, 24, needs round-the-clock care. Mr Elayoubi was born at Bankstown hospital. The defendants which were successfully sued were Dr Gabriel Zipser and Bankstown Hospital (South Western Sydney Area Health Service) and Northern Health. Source: SMH online 7.12.08.
VIC: 22cm Surgical Pack allegedy left inside patient during surgery at Melbourne Private Hospital Peter Shanahan, 60, suffered nine months of excruciating pain after a surgeon allegedly left a 22cm surgical pack in his bowel during a routine operation. Mr Shanahan said he suffered months of agony, and possibly a needless hernia operation when doctors failed to work out what the lump sticking out of his stomach was.The pack, and 42cm of Mr Shanahan's damaged bowel, were finally removed last July. It was only after he was rushed to the Sunshine Hospital and later sent to Western Private Hospital that a CT scan revealed the pack, which was removed the next day. Mr Shanahan is now considering taking legal action for medical negligence. Source: Herald Sun Online 5.12.08
WA: Alleged medical negligence claim against surgeon Robert Pollard has revealed to the Sunday Times his difficulties in suing Dr David Kay Kennedy. Mr Pollard of WA alleged that his operation was botched- cartilage in his ankle was sucked out, leaving bone on bone. Mr Pollard and another patient with similar injuries complained to the Medical Board about the doctor, David Kay Kennedy who was prohibited from doing surgery again. Mr Pollard claimed $600,000 in damages, however Dr Kennedy's insurance company didn't cover him, and a week after he and the other patient gained consent orders from the court, the doctor moved to go bankrupt. In February, Mr Pollard accepted just $6000 as an unsecured creditor. Dr Kennedy is now earning a living providing expert opinion reports as an "approved medical specialist" for WorkCover WA. Mr Pollard has clinical depression which followed years of pain and immobility and he has had to go on a disability pension. Source: PerthNow 5.12.08, Colleen Egan.
NSW: Health Dept writes to 6,770 patients at risk Dr David Lindsay ran the Mid-City Skin Cancer Centre (George St, Sydney) for 10 years until he was deregistered as a doctor in August 2008. After reviewing pathology records of more than 9,000 of Mr Lindsay's patients, New South Wales Health has written to 6,770 of them to advise a medical follow-up. A second medical opinion should be sought. The HCCC is currently investigating more than 50 complaints against Dr Lindsay. Source: Doctor leaves 6,770 'at risk of skin cancer', abc.net.au 24.11.08.
Federal: AMA says- 1500 Australians die each year because of hospital overcrowding AMA President Rosanna Capolingua said overcrowding in hospitals accounted for about 1,500 unnecessary deaths a year. Overcrowding compromises patient care and safety. NSW president of the AMA Brian Morton, says all NSW hospitals were operating above the internationally recognised safe occupancy rates of 85 per cent, with some even exceeding their full capacity. Dr Morton told reporters that Gosford Hospital, on the NSW Central Coast, at one stage operated with a 110 per cent capacity, which meant patients were on beds in the corridors. Royal Prince Alfred in Sydney was operating at 95 per cent, while Sydney's Royal North Shore Hospital was at 92 per cent. "Not one of our hospitals is operating at a safe level," he added. Source: Online SMH 12.11.08; The Age 12.11.08.
VIC: Scandal at the Alfred Hospital State Ombudsman George Brouwer has advised Australia's busiest trauma hospital that it could prevent fraud and malpractice scandals by taking billing responsibilities away from its specialists. The Ombudsman's suggestion came in last week's damning report regarding the alleged bungled surgery and overbilling by Dr Kossmann. Further allegations have arisen against The Alfred Hospital that it allowed its former trauma chief, Thomas Kossmann to operate on patients' vital organs despite his medical licence restricting him to orthopedic surgery. The revelation could pose further legal problems for The Alfred, which already faces the prospect of alleged medical negligence claims from some of Thomas Kossmann's former patients. Sources: Online: The Australian 03.11.08 ; The Age 01.11.08; The Age 30.10.08.
Federal: Hospital Errors on the increase according to new study Hospital mix-ups over patient identity and body parts more than doubled in one year to 159 in public hospitals, the Australian Commission on Safety and Quality in Health Care has found. Mix-ups in private hospitals were also on the increase. Another significant area of hospital errors - where surgeons and nurses forget to remove instruments or swabs and the patient's wound has to be re-opened to retrieve the items - accounted for 28 cases, the same as the previous year in public hospitals. But the number of cases in private hospitals jumped from 16 to 27. Sources: Online SMH 30.10.08; The Australian 30.10.08.
Federal: One in Ten Aussies are harmed by hospital treatment About one in 10 Australian patients will have something go wrong during a hospital visit, University of NSW Institute of Health Innovation director Jeffrey Braithwaite said. Source: Online The Australian 28.10.08.
NSW: Terminally Ill Woman Awarded $405,990.15 plus legal costs, for medical negligence Christine O'Gorman, 57, whose breast cancer spread to her brain and lungs, sued the Sydney South West Area Health Service for compensation after its BreastScreen Service, run out of Royal Prince Alfred Hospital, allegedly failed to detect the cancer in her left breast during screenings in 2004 and 2006. Ms O'Gorman won her case in the Supreme Court of NSW, however, the case may now be subject to an appeal by the area health service. Source: Online SMH: 29.10.08
Doctors 'tired and dangerous' A recent AMA survey of junior doctors indicated that almost half believe their excessive workload runs the risk of compromising patient safety, while a third reported they regularly worked unsafe hours. More than a third of junior hospital doctors prescribe themselves drugs, including tranquilisers and even morphine-based painkillers. Governments need to urgently address working conditions within public hospitals, for the safety and wellbeing of both patients and doctors. The AMA has recommended more doctors in hospitals, safer working hours and better rostering. Source: news.com.au 20.10.08; SMH 22.10.08.
FEDERAL: A new report suggests that more than 1500 people die each year in Australian public hospitals because of overcrowding A UNSW report for the Australasian College of Emergency Medicine also states that Perth’s big hospital emergency departments were the worst in the country for overcrowding, with almost half of patients waiting for a bed. Patients faced delays in being treated for heart attacks and other serious conditions or were given vital drugs such as antibiotics and blood-thinners too late, while the risk of medication errors also increased. Source: "Dying risk up 30% in crowded hospitals," The West, 10.09.08.
NSW: DR REEVES- Struck-off Gynaecologist who allegedly damaged patient's genitals, has been arrested Dr Graeme Reeves was arrested on 10.09.08, taken into custody and charged with 17 offences allegedly committed between 2001- 2003. He was charged with nine counts of aggravated sexual assault and six counts of indecent assault, as well as a count each of female genital mutilation and of maliciously inflicting grievous bodily harm. Reeves was denied bail and will remain in custody until his next court date, at Central Local Court in November. Source: SMH: 11.09.08. The Daily Telegraph reports that alleged victims will be spared the trauma of having to go to court to receive compensation, as the State Government will fast-track the civil cases to grant up to $100 million in compensation to the alleged victims. There are allegedly more than 100 victims who may be eligible for compensation. Alleged victims have reported they have been unable in the past to obtain compensation from Dr Reeves because he had filed for bankruptcy and was uninsured (note- the law has since changed making it compulsory for doctors to have professional indemnity insurance). Read here about one woman's story in trying to obtain compensation from bankrupt Dr Reeves, for her daughter who suffers from cerebral palsy, quadraplegic spasticity as a result of Dr Reeve's alleged negligence. NSW Premier Nathan Rees has backed a national system to screen doctors but the opposition is calling for tough new laws at a state level. Source: The Age 10.09.08. There are reports that doctors are opposing the national expansion of the new "dob-in-a-doctor" laws in NSW, which mandatory require doctors to report to the Medical Board any peers they suspect of committing sexual abuse, engaging in drug or alcohol abuse or conduct that may harm another person. Read more about Dr Graham Reeves here.
NSW: Medical errors in western Sydney hospitals A new report says that medical mistakes/poor care was a significant factor in 14 deaths in the past two years at western Sydney public hospitals. Poor care may have contributed to the deaths of up to 25 others. Source: Online SMH 25.08.08 and 26.08.08.
VIC: Patient data manipulated in public hospitals The Australasian College for Emergency Medicine has urged the Government to crack down on hospitals that rort funding by manipulating patient data and inconsistently measure waiting times. Public hospitals get bonuses for reaching State Government benchmarks designed to improve hospital efficiency. The doctors' claims cast doubt about the accuracy of hospital performance data reported by the Government. Source: Online The Age 25.08.08.
Federal: New Report indicates that the majority of medical negligence claims settle for under $100,000 The Australian Institute for Health and Welfare has released a report analysing claims which settled between 2005-6. Some of the findings were:
It is important to note that the amount that is awarded depends on the severity of the damage caused, the needs created and losses suffered as a result of the negligence. Each case varies on its own facts. Source: AIHW Media Release 08.08.08.
QLD: New wrtistband in QLD Hospitals to help prevent patient identification errors In 2007, Queensland Health recorded 31 cases where mistaken identity led to patients being seriously harmed. Such blunders include wrong site surgery, incompatible blood transfusions, and patients receiving the wrong medication. There have been at least 117 "adverse blood events" since December 2006. The introduction of the white plastic wristbands follows a recent agreement by Australian health ministers and will take several months to implement. Source: Courier Mail Online 03.08.08.
S.A: Royal Adelaide Hospital - 720 cancer patients given wrong radiation dose One of four radiation machines at the Royal Adelaide Hospital was giving an incorrect dosage to cancer patients for two years (2004-2006). Dr Peter Ford from the Australian Medical Association (AMA) says that while the overall effect on patients may have been minimal, a five per cent under-dose could be significant in some cases. An inquiry will be held. RAH Radiation Machines, ABC News 25.07.08; Cancer Patients to be Reviewed, ABC News 30.07.08. UPDATE: 11.09.08. An independent review was led by NSW radiation oncologist Geoff Delaney. Professor Delaney reported: "In terms of clinical significance, it is likely that almost all patients will have not suffered as a result of the radiotherapy underdose because the underdose was relatively small." A separate independent review will now examine why the matter was kept secret. Professor Delaney made 14 recommendations to ensure the mistake would not be repeated. The South Australian Government has accepted all of them. Source: Online The Australian.
NSW: Special Commission of Inquiry Into Acute Care Services in NSW Hospitals 31.07.08: Peter Garling SC, the Commissioner of the Inquiry today released the first of his reports. The case of Dr Graham Reeves, obgyn who allegedly botched operations, has now been referred to the DPP for consideration of possible criminal charges. The Commissioner made some 10 recommendations, and the NSW Health Minister has said that the government will implement all 10 recommendations. To read more: Commission's website; "Rogue Surgeon referred to DPP", SMH 31.07.08. Update: 27.11.08 A further report was handed down today. The NSW government has promised to respond to the Garling report by March next year.
QLD: Dr Jayant Patel UPDATE 21.07.08: Dr Patel is back in Australia to face criminal charges. Patel faces 14 charges including manslaughter and grievous bodily harm, relating to his time at Queensland's Bundaberg Base Hospital between 2003 and 2005. He has been granted bail with conditions. Source: Online SMH 21.07.08. UPDATE 10.02.09: Dr Patel is currently in Brisbane's Magistrate's Court for his committal hearing.
S.A: Adelaide doctor jailed for taking intimate photographs of female patients for his own sexual gratification Dr Gurmit Singh Dhillon is serving a two year jail sentence, with a non-parole period of 14 months, after pleading guilty last year to 15 charges of indecent behaviour and a further 2 counts of indecent assault. UPDATE 15.07.08: The Medical Professional Conduct Tribunal today ruled that Gurmit Dhillon be banned from practice because of the humiliation and distress caused to his victims, Adelaide Now reported. During consultations he secretly took photographs with a digital camera after unecessarily asking them to remove their underpants, and these were put onto a laptop or a computer hard drive. Reprimanded by the Medical Board in September 2005, Dhillon continued to see and assault patients until his name was removed from the register of doctors a month later.
VIC: Latest report shows that 1 in 10 patients in Victorian hospitals will suffer from a medical error. The Patient Safety in Public Hospitals report tabled in parliament has shown that "clinical incidents" affected more than 135,000 patients last year. According to the report, about 50 per cent of care-related injuries are avoidable. Source: "Hospital errors affect one in 10"; news.com.au 28.05.08. Read more about Medical Error Statistics here.
VIC: Dermatologist / Cosmetic Surgeon fronts Medical Board An Armadale dermatologist and cosmetic surgeon is currently before the Medical Board, accused of the following: performing inappropriate procedures on 6 patients; repaying a dissatisfied patient $3300 on the condition the patient not complain; asking staff to clean a device containing needles for re-use after it had been used on a patient with hepatitis B. The hearing continues. Source: news.com.au 15.04.08.
NSW: Hospital staff under scrutiny for alleged misdiagnosis Carol Willesee, accomplished stage actress died from Creutzfeldt-Jakob disease in 2006. According to her daughters, the family became increasingly distressed during their mother's one month stay at Nepean Hospital because they felt ignored by medical staff who did not speak to them at all about what their mother might be suffering from or what tests they were organising. It is alleged by the family that Carol was not diagnosed with CJD until 23 days after her admission. Source: news.com.au 15.04.08.
Dob In a Doctor: NSW Doctors will be legally required to report misconduct Additions to the Medical Practice Amendment Bill will be tabled in parliament at the next sitting in early May. The three areas of mandatory reporting will be sexual abuse in the practice of medicine, drug or alcohol intoxication whilst working, and engaging in conduct which may harm another person. Source: news.com.au 13.04.08.
Kylie Minogue's Breast Cancer Misdiagnosed Kylie Minogue has revealed on US television that a doctor failed to diagnose her with breast cancer, claiming she was "fine." She said: “My message to all of you, and everyone at home is, because someone is in a white coat and using big medical instruments doesn’t necessarily mean they are right.” It is unclear whether the misdiagnosis took place in Australia or overseas. Source: news.com.au.
QLD: Alleged misdiagnosis GP Dr Michael Tait is under investigation over allegations he diagnosed a woman as a hypochondriac even though she was later diagnosed with multiple tumours including a 7.5cm-wide benign brain tumour and seven breast tumours. Dr Tait is also now facing deregistration by the Medical Board. Source: news.com.au 29.03.08.
VICTORIA: Specialist doctor jailed for sexual assault of 14 patients. 14.03.08: A Melbourne dermatologist has been jailed for rape and indecent assault. Read more....
QLD and NSW Medical Boards have suspended Dr Roman Hasil A report by New Zealand authorities alleged the obstetrician and gynaecologist botched sterilisation operations, drank alcohol while on call, and failed to keep proper records. Source: abc.net.au 28.02.07.
Report shows Australian public hospital bungles are killing scores of people Read more about medical errors in Australia and the AIHW report here. Patient safety expert Stephen Bolsin said little had improved in the past decade. "Safety breaches in Australian healthcare are killing more people than breast cancer or road accidents," Associate Professor Bolsin said. (Source: Online SMH 11.07.07)
Public Hospitals are at their Worse. What is being done to fix the system? Walton, an associate professor of medical ethics at the University of Sydney who was NSW's first health care complaints commissioner, is incensed that governments have not moved faster to prevent the rising toll of serious harm and deaths from medical errors.
Record number of medication errors in hospital MEDICATION errors at Royal Melbourne Hospital have doubled in the past four years. Melbourne Health, which runs the hospital, recorded 1217 medication errors in 2005-06 compared with just 503 in 2002-03. READ MORE...
Harmed in NSW hospitals: 500 errors a record ALMOST 500 medical errors in NSW public hospitals either seriously harmed patients or could have done so in 2005-06 - the highest number in the three years the statistics have been collected. A report by the Clinical Excellence Commission found policies and procedures were to blame for a quarter of the errors and near misses. These included inadequate training requirements for some staff. Another quarter were attributable to communication problems, particularly when patient care was handed over to a different medical team or between shifts. Incompetence or outdated skills were behind almost 100 cases, and inadequate ratios of medical staff to patients, or rostering of junior doctors into senior roles, was at the heart of about 70 of the problems. Equipment failure was much less common. Serious incidents in NSW: - Delayed or wrong treatment or diagnosis: 178 - Suicide outside hospital: 137 - Birth problems: 37 - Wrong operation: 36 - Falls: 30 For further info: Sydney Morning Herald 21.12.06; Clinical Excellence Commission
The Law of Medical Negligence: Understanding your rights
If you or your child have been injured by medical treatment, or if you are the dependant of a patient who died as a result of medical treatment, you may be entitled to compensation. Civil legal proceedings in Court for compensation arising from the circumstances of the adverse medical event, usually involve the claimant or "plaintiff" seeking to prove the tort of Negligence before the Court. The cause of action in negligence usually arises in one or more of the following situations:
Treatment Examples:
Diagnosis Examples:
Provision of Information/Advice Examples:
All 3 of the following elements must be proven to establish a case of negligence: 1. The doctor owed the patient a duty of care; 2. The doctor breached that duty of care by some act or omission; 3. This act or omission has caused the patient physical and/or financial harm.
Just because harm or injury has occurred in the course of medical treatment, does not mean that the doctor has been negligent. Negligence is a question of law. The main question to be asked is whether the act or omission by the doctor was reasonable in the circumstances of the case. Expert evidence from a medical practitioner is usually required to establish whether there was a failure on the part of the treatment provider(s) to exercise reasonable and care and skill in the circumstances and to identify any damage that has been caused by such poor treatment and care. If you were treated as a private patient, you may have an additional claim for breach of contract if your medical treatment is substandard.
Examples of Medical Negligence Personal injuries (including physical damage, psychological damage, death) can occur in all medical specialties. Additionally, medical negligence claims are not limited to law suits against medical practitioners; claims can also be brought against other health professionals such as dentists, nurses, midwives, physiotherapists etc. Specific examples include the following:
Seeking legal advice Medical negligence is a highly specialised field. It has legal principles and rules of procedure which differ from those covering other areas of the law. When seeking legal advice you must ask yourself: What do I really want?
You could instruct a solicitor to act for you in making a complaint only. Complaints are best dealt with by bodies such as the Health Care Complaints Commission. But if your need is financial compensation you must see an experienced medical negligence solicitor as soon as possible.
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WHY USE OUR SERVICE? Finding a competent and experienced medical negligence lawyer can be very difficult. If you contact the Law Society for a referral, they will usually give you the names of ANY solicitors in your area. They can also provide you the names of accredited personal injury solicitors near you. However, we have found that just because a solicitor is accredited, does not necessarily make them a good solicitor. It's the same with doctors... just because they have a university degree and specialist qualifications, it doesn't make them competent or a good doctor. What is more disturbing is the fact that some solicitors advertise themselves as medical negligence lawyers, when they in fact have little or no experience in the area, or they do have experience but they have only ever represented defendants (i.e doctors and hospitals) and not plaintiffs (patients). Through trial and error, by speaking with patients, lawyers, barristers, we have attempted to locate excellent medical negligence lawyers with solid reputations as experts in their particular fields. It is through feedback to this website that we are able to assess the quality of the solicitors we refer to. Moreover we only refer to plaintiff lawyers with a genuine interest in patient's rights. And the best part is that this referral service is free for patients and their families with genuine claims.
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