2018 Annual Scientific Meeting

“The past is a foreign country; they do things differently there” said the British novelist Leslie Hartley in his 1953 book ‘The Go-Between’. This presentation looks at the medical litigation timeline. Is our impression of the past of medical litigation reliable? How should we interpret the recent incremental advances of case law and statutory amendment? And what new issues will the courts be asked to grapple with over the coming years?

Bill Madden is a lawyer in private practice with Carroll & O'Dea Lawyers and a Fellow of the Australian Academy of Law. He has adjunct appointments in both the law and medical schools at Western Sydney University, in the Australian Centre for Health Law Research at Queensland University of Technology and in the Melbourne Law Masters program at the University of Melbourne. His blog at https://billmaddens.wordpress.com includes updates on medical law issues.

There is a growing tension between the benefits that the use of digital information and big data can provide to an individual and the community expectation that personal  information can, and will, be kept secure. Add to this the growing sophistication of the criminal element and you have a perfect storm. This presentation will examine privacy as security as “two sides of the same coin”. Starting with the obligations imposed by privacy legislation, including the mandatory data breach reporting provisions, it will look at how these obligations may affect personal injury claims, including class actions. It will conclude with a discussion around whether a “right to privacy” could give rise to its own cause of action for personal injury.

Louise Cantrill, Partner at Mills Oakely, has worked as a medico-legal specialist since 1996, defending a broad range of medical and allied heath professionals, practices, laboratories and specialist departments, including public and private hospitals, mental health service providers and aged care. Louise acts in the Supreme, District and Coroner’s Court, conducting complex, multi-party litigation, including sensitive, multifaceted negligence claims, catastrophic injury cases and high profile coronial inquests. She also uses her experience to advise on policy and risk which can assist in reducing claims. She is independently recognized as a leading medical negligence practitioner in Bests Lawyers and Doyles Guide.

Occupational injuries carry a significant burden not only on the injured worker but also to their family, friends, employer and the community in general. Data from SafeWork Australia outlined the number of serious Australian worker’s compensation claim in 2015—16 were 104770 with increasing median time lost and compensation paid for serious injury. Management of occupational injuries can be difficult with many stakeholders wanting a say in the management of the injured workers including the employer, case managers, worker’s representatives and various doctors, specialist and allied health professionals. Injured workers will require the support of the treating doctors and determination of capacity. The Australasian Faculty of Occupational and Environmental Medicine endorses the health benefit of work. Although injury and incapacity go hand in hand, it is crucial for medical practitioner to recognise the health benefit of work and focus on the capacity rather than the incapacity.

Dr Suyapto completed his medical degree in Adelaide in 2003 and has since worked in most Adelaide metropolitan hospitals. He completed his specialist Occupational and Environmental Physician training in May 2014 and accredited Permanent Impairment Assessor for spine, upper limbs, lower limbs and digestive system in Sourth Australia. Dr Suyapto sees patients with complex occupational injuries and completes medico-legal report. He obtained a Bachelor of Laws in 2018. He is also a member of the South Australian Health Practitioner Tribunal.

The treating doctor of a patient with a compensable injury has a vital role to play in their patient’s claim.  A prompt, fair settlement achieved prior to a court hearing is almost always the best outcome for an injured person.  A key element of this is good medical records. This seminar will explain the medico-legal implications of documentation and provide effective strategies to facilitate the keeping of detailed medical reports.  Participants will gain an understanding of the application of the Health Records Act 2001 in litigation, and appreciate the critical nature of records in whether a claim is accepted or rejected.

Deidre Petrakis is an Associate at Adviceline Injury Lawyers.  She is an expert in personal injury law, with a particular focus on workers compensation and public liability claims. She has a diverse background and has previously worked for the Department of Human Services; the Northern Hospital; and as a Legal Research Fellow for the Associate Dean (Academic) at La Trobe University. As a skilled lawyer and advocate Deidre uses her Court and advocacy expertise to resolve matters early and efficiently in order to get the best outcomes for her clients.  She is highly valued for her professionalism, empathy and determination.

Clinical Forensic Medicine is most frequently associated with the application of specialist knowledge to injury interpretation in aspects of criminal law. The focus in such cases tends to be causation with only gentle consideration of broader aspects of disability and impairment. The role also encompasses the investigation of health care related death which may in turn lead to other legal arenas for consideration of the award of damages. There are considerations in how the information prepared for a criminal case may differ from cases where personal injury considerations are brought to bear in a civil arena. There have been benefits to practitioners in clinical forensic medicine through attendance and participation in the ACLM law intensives and expert evidence courses. A consideration for the development of a Personal Injury Law intensive for ACLM will be discussed.

Adam Griffin is the current director of Queensland’s Clinical Forensic Medicine Unit. He received a medical degree from the University of Queensland and a Masters in Forensic Medicine from Monash University. He is a Fellow of the Australasian College of Legal Medicine, foundation member of the Australasian Association of Forensic Physicians, and member of the Forensic and Clinical Toxicology Association. Dr Griffin enjoys study and research, educating others, playing tennis, recreational pursuits in IT and travel.

Artificial intelligence (AI) has the potential to significantly transform the role of the doctor and revolutionise the practice of medicine. One of the concerns that has been raised is the issue of legal liability when personal injury occurs. If a medical error occurs, who is to be held liable? A robot surgeon is not a legal entity, so should the patient sue the owner, the programmer, the manufacturer or someone else? Could an AI ever be subject to criminal liability? There is also the matter of morality and ethics with AI, illustrated by the classic ‘trolley problem’. As a profession, we need to have a mature discussion and debate about the legal, ethical and moral challenges of AI in health, and be leaders in this space rather than passive observers. (Reference: http://bmjleader.bmj.com/content/early/2018/06/01/leader-2018-000071)

Professor Erwin Loh is Chief Medical Officer at Monash Health, Victoria’s largest health service. In this role, he has executive accountability for the professional governance of over 2,000 doctors, which includes the medical workforce and education, research governance across clinical and translational research, and the implementation of the electronic medical record. Prior to this he was the Deputy Chief Medical Officer at the Peter MacCallum Cancer Centre. Before that he worked full-time as a lawyer at Sparke Helmore, and has trained in psychiatry. He has a medical degree from the University of Melbourne, and a law degree with honours from Monash University. He also has an MBA, a Master of Health Service Management, and a PhD with his thesis examining doctors in senior hospital management. He is Fellow of the Royal Australasian College of Medical Administrators, Australasian College of Health Service Management, Australian Institute of Company Directors and Australasian College of Legal Medicine. He is an alumnus of the Williamson Community Leadership Program, the Department of Health Executive LINK program, and the Institute of Healthcare Improvement Executive Healthcare Improvement Academy, and is a Lean Six Sigma Certified Lean Champion. He has been Board Director of the Australian Medical Association (Victoria), Law Institute of Victoria, Royal Australasian College of Medical Administrators, and is a current Board Director and Vice President of the Australasian College of Legal Medicine. He is an adjunct Clinical Professor at Monash University where he teaches health law and health services management, and is involved in research exploring medical leadership and health services management. He is a member of the Consultative Council for Clinical Trials Research and is also Jurisdictional Coordinator of Training for the Royal Australasian College of Administrators training program in Victoria. He has been an invited speaker of local and international conferences, published articles and book chapters on health law and medical management, and supervises doctoral students.

Persons suffering from injuries as result of mishaps are going through a period of trauma.  Litigation as mean of resolving the disputes might not offer all the remedies that the claimants want.  Moreover, the process of litigation is lengthy and can be very painful for both parties, Alternate Dispute Resolution (ADR) such as arbitration can be an option not only for speedy resolution but also both parties would agree on issues to be arbitrated and selection of arbitrator(s) with expertise for the disputed matters.  Confidentiality also minimises undue stress and anxiety.  There is a concern on process of justice without formal judicial procedure.  Jurisdictions like Australia and Hong Kong have systems of law protecting public interest. They would be very appropriate places to make greater use of ADR in resolving disputes on injuries. (Ref: Lee A. Alternate Dispute Resolution for Medical Disputes. Hong Kong Law Journal 2018; 48 (1) Forthcoming)

Albert Lee is currently Professor (Clinical) in Public Health and Primary Care, and Associate Dean of General Education of Wu Yee Sun College, The Chinese University of Hong Kong. He is trained as Family Medicine specialist and also training in public health awarded with Fellowships of Royal Colleges in Australia, UK and Ireland.  He has also received his law degree from University of London and Master of Law with distinction in Arbitration and Dispute Resolution from City University of Hong Kong.  He is also Fellow Chartered Institute of Arbitrators, American College of Legal Medicine, Australian College of Legal Medicine (to be admitted in Oct 2018).  His research interests include community based care, health equity, healthy cities and healthy school, legal medicine, human rights, conflict management, legal issues in education and social care, and quality of life with over 220 publications in peer review journal and over 160 invited presentations. He was elected as member (Foreign Associate) of National Acadmey of Medicince USA in 2012.  Election to the NAM is considered one of the highest honours in the fields of health and medicine. He also serves as Vice President (Child and Adolescent Public Health) of UNESCO-HK Association and various statutory bodies including consultant/advisor to WHO. MB BS (Lond) LLB (Hons-Lond)  MPH LLM (Distinct-Arb &DR-CityU.HK)  MD(CUHK) FRCP (Lond & Irel) FCIArb FFPH (UK) FRACGP FHKAM(FamMed), FCLM (US), US Nat.Acad.Med (Foreign Associate)

The meaning of a “minor injury” is:

a) A soft tissue injury

b) Minor psychological injury.

A soft tissue injury is an injury to a tissue that connects, supports, or surrounds other structures such as muscle tendons, ligaments, menisci , cartilage  but not an injury  to nerves or a complete or partial rupture of tendons, ligaments,  menisci or cartilage.  The regulation may exclude or include specific injuries to soft tissues.  The Motor Accidents Guidelines make provision for minor injury in establishing a new model for Dispute Resolution. Even though there may be minor injuries they can be multiple and can result in a complex assessment  with a large quantity of documents is provided to attract a complex fee. Deterioration of minor injuries may require additional information such as video surveillance. Soft tissue injuries usually resolve but some evolve. Examples are given in this paper, eg a muscle contusion in a leg which leads to a DVT with post phlebitic  syndrome. Another example is a minor injury to sciatic nerve root following a back strain injury with a disc bulge which subsequently manifests as an irritative sciatica (radicular complaint) which may later develop into radiculopathy.  Other examples will be given.

Dr Drew Dixon is a Consultant Orthopaedic Surgeon and Medicolegal Consultant in Sydney. He is a Fellow of the Royal Australasian College of Surgeons and a Fellow of the Australian Orthopaedic Association and Master in Health Law and Fellow of the Australasian College of Legal Medicine. He is the President of the Australian Medico-Legal College and President of the Australian Orthopaedic Association Medico-Legal Society. He is a past President of the Medico-Legal Section of the Royal Australasian College of Surgeons. He has convened Combined AOA/RACS/AMLC Medico-Legal Meetings on many occasions, the latest being in Sydney in September 2017. Topics included in these conferences have included Difficult Problem Cases, Impairment Assessment, Evidence based Medicine, Providing Medico-Legal Reports, Bio-Ethical Discussions, Medico-Legal Matters such as Complaints Handling and Litigation and medical updates such as newer surgical techniques. He is a Senior AMS with SIRA (WCC) and he is also on the Appeals Panel and is an MAS Assessor and also a Member of the Appeals Panel for SIRA (MAA). He is a Member of the Council of Australian Tribunals COAT and a Member of the HRECS (Ethics Committee) at Sydney Adventist Hospital. He is one of two orthopaedic representatives on CHASM (Surgical Mortality Review in NSW) and a Fellow of the American Academy of Disability Evaluating Physicians (FAADEP).

Bill Madden is a lawyer in private practice with Carroll & O'Dea Lawyers and a Fellow of the Australian Academy of Law. He has adjunct appointments in both the law and medical schools at Western Sydney University, in the Australian Centre for Health Law Research at Queensland University of Technology and in the Melbourne Law Masters program at the University of Melbourne. His blog at https://billmaddens.wordpress.com includes updates on medical law issues.

A number of cases within the last year have analysed and applied the section 5O defence under the Civil Liability Act. The following cases will be reviewed:
- Sparks v Hobson; Gray v Hobson [2018] NSWCA 29
- Zhang v Hardas (No2) [2018] NSWSC 432
- South West Sydney Local Health District v Gould [2018] NSWCA 69

The cases raise a number of issues:
- When can the section 5O defence be relied upon?
- Who is a professional?
- What is the peer professional opinion?
- Must there be evidence of an established practice?
- What is the meaning of irrational?

These questions will be examined.

Paul has 33 years' experience in liability litigation, acting for a number of years on behalf of plaintiffs and then in the last 27 years on behalf of defendants. Paul has extensive experience in health liability claims. He acts on instructions from medical defence insurers in representing doctors in defence of health liability claims in the public and private system including catastrophic injury claims. Paul has acted in a wide variety of health liability matters involving the liability of general practitioners and medical specialists in such matters as delayed diagnosis of cancer (e.g. prostate, breast, bowel, throat, myeloma and melanomas), misdiagnosis of cardiac symptoms resulting in adverse outcomes (including death), adverse outcomes in surgery (e.g. bowel perforations in gynaecological procedures and delayed diagnosis of post-operative infection), misdiagnosis of pulmonary embolism resulting in death, anaesthetic adverse outcomes (including death), failure to diagnose testicular torsion, poor outcomes resulting from ENT surgery, delayed diagnosis of neuropathy (e.g. transverse myelitis and CIDP) and birth cases involving injury to mother or child. Paul has been recognised by Best Lawyers Australia for 2019 in the practice area of Professional Malpractice Litigation.

This presentation will examine the essential basis for expert opinion evidence in a Court, and provide a judicial perspective about expert witnesses particularly when giving concurrent evidence.

Peter Garling was born in 1952 in Malaya. He was educated in Sydney at St Ignatius’ College, Riverview. He was awarded the degrees of Bachelor of Arts (1974) and Bachelor of Laws (1977) by the University of Sydney.

He was appointed to be a judge of the Supreme Court of NSW in June 2010. His Honour sits in the Common Law Division of the Court where he hears both criminal and civil matters. His Honour was a member of the Executive Committee, and the Governing Council of the Judicial Conference of Australia from 2010 to 2013. He is presently the Chair of the IT Committee, a member of the Education Committee and also of the Common Law Civil Users Group of the Supreme Court of NSW. He is a member of the Editorial Committee for the Civil Trial Bench Book at the Judicial Commission of NSW. Prior to his appointment, he practised as a barrister for over 30 years. His first admission as a barrister was in NSW on 9 February 1979. He was then admitted to practice as a barrister in all States and Territories in Australia.  He was also admitted to practice in New Zealand and has practised extensively on Norfolk Island. He was appointed a Senior Counsel in 1994. His appearances as a barrister ranged across a variety of common law, criminal and commercial litigation cases throughout Australia.  He specialised in the areas of professional negligence and product liability law, public authority liability, insurance law and administrative law. He has appeared extensively in Royal Commissions and Public Inquiries. From November 1989 to November 1991, he held an appointment as an Acting Judge of the District Court of NSW. From 2006 to 2008, he served as an elected member of the Council of the Bar Association of New South Wales. He was a member of the Legal Profession Review Council appointed by the Attorney General of NSW.

In January 2008, he was appointed by the Government of New South Wales to conduct the Special Commission of Inquiry into Acute Care Services in NSW Public Hospitals. His Inquiry dealt with all aspects of the public hospital system in NSW and more broadly with aspects of the delivery of all health and allied services throughout NSW. In the course of the Inquiry, he visited 61 hospitals, and heard from over 625 witnesses about the operation of the health and public hospital system in NSW. He received and reviewed 1200 submissions from organisations and individuals. On 28 November 2008, he delivered his 1200 page Report to Professor Dame Marie Bashir AD CVO, the then Governor of New South Wales. The Report made 134 recommendations for reform in public hospitals, which were adopted by the NSW government. The Garling Report, as it is known, has been, and continues to be, the guiding charter upon which many of the extensive reforms in NSW public hospitals have been based.

His Honour has been a member and office-holder of many community organisations. He has been involved in a number of governance roles with the education mission of the  Loreto Sisters. He is presently the Chair of Loreto Ministries Ltd, an organisation responsible for the provision of primary and secondary school education throughout Australia to over 7,000 students, and also in Timor Leste. As well, it provides programs which support school education in Vietnam.

40% of workers report stress in the workplace. Not many of them develop psychiatric disorders. The DSM diagnostic criteria for most psychiatric conditions includes the “clinically significant impairment in functioning” clause. Research shows that when only the presence of symptoms are relied upon for diagnosis (not impairment) the false positives would more than quadruple people suffering with mental illness. Whilst this may in some cases relate to better recognition and access to treatment, it also puts a mostly unnecessary label of a psychiatric illness, when there is not one. The presentation aims to discuss thresholds for a psychiatric diagnosis in response to work stressors, comparing “normality” vs “diseasality”. The concept of clinical impairment being person specific and individual assessment processes will be explored. There will be a focus on secondary psychiatric disorders, adjustment disorders, and permanent impairment. Multiple case examples and common practice scenarios in medicolegal assessments will be highlighted.

Dr Wasim Shaikh conducts approximately 10 IME (Independent Medicolegal Examinations) assessments each week, and has the experience of over 4000 IME’s in the past 10 years. Dr Shaikh has chaired multi-specialty assessments, represented universities in panel discussions, and presented seminars on medicolegal topics in various conferences across the country and overseas.

Existence of ‘material risk’ has been demonstrated in a number of patients with Multiple Sclerosis (MS) being treated with medications know to be associated with development of JC viral infection and potential to develop Progressive Multifocal Leukodystrophy (PML). Many doctors who are involved in the care of such MS patients are not aware that even the low risk of 1/10,000 cases is sufficient to make the doctor liable in negligence should the patient contract the condition, in the absence of being advised of such risk and potential testing and possible change in treatment, should the patient prove positive for JCV presence. It is not just the risk, being more common that the 1/14,000 cited in Rogers, but also the experience being presented, where patients who were offered JCV testing readily accepted the test and those with a positive titre opted to change treatment to a less potent remedy devoid of reported cases of PML. This meets the Rogers authority that doctors ‘know or ought to know’ that this is considered highly relevant by their patients and thus failure to warn or discuss and offer alternatives may place the doctor at risk in negligence should a patient contract PML within this context.
​(“John Cunningham Virus Status and Progressive Multifocal Leukoencephalopathy As Material Risks when Treating Relapsing Remitting Multiple Sclerosis”, by R G Beran ^(1,2,3), S Sathiyseelan ⁽³⁾, John A Devereux ⁽⁴⁾)

Roy is trained as a consultant neurologist and accredited sleep physician, in addition to working within legal medicine and aviation medicine. His qualifications include: MBBS, MD, FRACP, FRACGP, Grad. Dip. Tertiary Ed., Grad. Dip. Further Ed., FAFPHM, FACLM, FRCP, FACBS, B Leg. S, MHL and FFFLM (Hon). He is a Professor in the School of Medicine at Griffith University, Queensland, and Conjoint Associate Professor of Medicine at the University of New South Wales. He is a founding Fellow of the Australasian College of Legal Medicine, a Past President of the College, having stepped down in 2011, and is an Honorary Fellow of the Faculty of Forensic & Legal Medicine of the Royal College of Physicians (London).

This paper explores the impact of the clinical incident review process (with reference to NSW Health Incident Management Policy PD 2014_004) on subsequent litigation resulting from incidents, particularly in the Coroner's Court and in civil jurisdictions. The impact of open disclosure, internal investigations (including Professional Practice Investigations), incident reports, early preparation of witness statements and Root Cause Analysis is discussed.

Francesca has 25 years’ experience as a defendant insurance litigation lawyer and specialises in general insurance litigation and medical negligence. In addition to representing NSW Health agencies in liability claims, coronial inquests and administrative law matters, she has provided advice to NSW Health concerning issues of privilege, open disclosure and communications with patients and their families. Francesca is committed to providing high-quality, cost-effective legal services to her clients with particular focus on early resolution and excellent outcomes. She is committed to creating a work environment in which talent and intellectual growth is nurtured and individual needs are respected. Francesca is a regular presenter at client and industry seminars. She has been selected to interview candidates for the NSW Law Society’s Accredited Specialist program in Personal Injury (Medical Negligence) and has been recognised as a pre-eminent medical negligence lawyer in the 2015, 2016 and 2017 editions of Doyle’s Guide. Francesca is a Graduate of Australian Institute of Company Directors (GAICD),  and a member of the Law Society of NSW and the Association of Women in Insurance.

For most prospective mothers, pain in childbirth is their greatest fear. This was perpetuated in Genesis 3:16 as ‘Eve’s curse’: to bring forth children in great pain. However intolerable labour pain should no longer be accepted by the health professions. Without adequate pain control in labour fetal complications can be significant. Moreover, if relief from pain is a fundamental human right then surely standards of good obstetric care should include a definition of adequate pain relief in labour and obstetricians should pay due attention to alleviating that pain. Pain and suffering are seen in law as a secondary consequence of medical negligence. However, I argue that failure to adequately address pain in labour should be seen as medical malpractice or at least unprofessional conduct. Actions in medical negligence may well advance the clinical imperative to control pain.  Effective pain control in labour should be seen as good medicine as well as humane treatment.

Mike O’Connor is Professor of O&G at Western Sydney University and a Visiting Obstetrician & Gynaecologist at The St George Hospital, Kogarah, and St George Private Hospital, where he is Chairman of the Patient Care and Clinical Review Committee. He is a Conjoint Senior Lecturer at UNSW in the Division of Women’s and Children’s Health and Lecturer at Sydney University. From 1981-1983 he was Medical Superintendent at the Women’s Hospital (Crown St.) in Sydney. For 6 years Mike O’Connor was a Federal Councillor of the Royal Australian & New Zealand College of Obstetricians & Gynaecologists, representing NSW and served as Vice President of the College from 2002-2004. His College work included the development of an Indigenous Health Worker training program in antenatal care, adult and neonatal resuscitation courses as well as courses on the management of sexual assault. He established the Chapter of Military O&G in the RANZCOG and is its Chairman. Mike O’Connor was awarded the Gold Medal of the RCOG at the MRCOG exams in 1975 and in 1982 he was awarded the degree of Doctor of Medicine (Sydney University). He holds Diplomas in Diagnostic Ultrasound & Child Health. He is an active member of the ACLM, the ASCCP and the ASUM. He has a Master’s degree in Health Law from Sydney University and a Master’s degree in Forensic Medicine from Monash University. He acts for both Plaintiffs and Defendants as an expert witness. He is a section editor for the Journal of Law and Medicine. In 2009 he was created a Member of the Order of Australia in recognition of his longstanding work in Indigenous Health.