Precedent (Australian Lawyers Alliance)
HOW HARD CAN MEDICAL NEGLIGENCE BE?
RUNNING A MEDICAL NEGLIGENCE CLAIM
By Peter D’Arcy-King
There are no universal templates in medical negligence litigation. Each case turns on its own unique facts and circumstances, with varying degrees of medical and/or legal complexity.
Engaging in this area of law requires the practitioner to have some basic medical knowledge, diligence and attention to detail. Practitioners are required to develop and promote case theories and discuss these with appropriate medical experts. They must be able to adjust the case theory to the evidence.
What follows is an example of what not to do in investigating and/or pursuing a medical negligence claim, using an anonymised case by way of illustration.
It aims to provide some practical advice on what should have been done to increase the chance of succeeding in such a matter.
In 2009, a regional NSW Local Law Firm (LLF), was contacted by Mr Smith, who was 40 years of age at the time. He provided LLF with the following information: Mr Smith was an obese man who underwent a lumbar L4/L5 decompression laminectomy performed by Dr White, neurosurgeon, at All Saints Hospital (ASH) in April 2006.
Several weeks later, Mr Smith complained of increasing back and gluteal pain with radiation down his right leg.
In late April 2006, Mr Smith presented to Oh My God Hospital (OMG) Emergency Department and was diagnosed with L4/L5 compression with right sciatic nerve entrapment.
Mr Smith was transferred back to Dr White but, unfortunately, Dr White was on sabbatical. Dr Black, neurosurgeon, also practising at ASH, assumed the care of Mr Smith.
Radiological investigations noted that the L4/L5 nerve root was trapped and required further decompression.
Mr Smith underwent a second L4/L5 decompression laminectomy, performed by Dr Black, at ASH in early May 2006. During that procedure, it was noted that the spinal cord dura was torn/perforated from the previous surgery and required surgical repair.
Over the subsequent weeks, Mr Smith continued to have back and gluteal pain with right leg numbness. He also complained of pressure in and around his L4/L5 incisional wound.
In late May 2006, Mr Smith’s lumbar incisional wound burst open discharging purulent (staphylococcus aureus) fluid.
Mr Smith underwent a lumbar wound debrided and third L4/L5 decompression laminectomy, performed by Dr Black at ASH.
Several months later, Mr Smith developed an abscess under the lumbar incisional wound that was subsequently drained.
Mr Smith continued to complain of back pain and was referred to Dr Grey, neurosurgeon, who performed a further decompression laminectomy at Here We Go Again Hospital (HWGA) in November 2006.
In late 2007, Mr Smith was diagnosed with lumbar arachnoiditis, discitis and osteomyelitis at OMG. He has permanent back pain, cauda equina syndrome and other injuries and disabilities.
LLF was retained to investigate whether Mr Smith had a potential medical negligence claim.
LLF’s CONDUCT OF THE MATTER
LLF had little experience in medical negligence cases, although they held themselves out as same.
LLF did not take a statement, detailed or otherwise, from Mr Smith during the course of its retainer. LLF relied upon Mr Smith’s brief description of events and focused its entire investigation on Dr White’s conduct.
LLF requested the medical records from Dr White, ASH and OMG. Several months later, LLF received the requested medical records. However, the ASH and OMG medical records were incomplete – LLF was oblivious to this fact.
At no time did LLF subpoena the medical records from any of the treating medical practitioners and/or institutions.
LLF outsourced the medical records to a medical practitioner consultant (MPC) to determine whether there was a medical negligence claim against Dr White. MPC was not a lawyer and was unaware of the nuances of conducting a medical negligence proceeding.
MPC developed a case theory (based on incomplete medical records) alleging that Dr White had negligently perforated the spinal dura and/or failed to recognise and repair the perforated dura which caused or materially contributed to Mr Smith’s lumbar spinal infection and subsequent arachnoiditis, spinal discitis and spinal osteomyelitis.
LLF uncritically embraced that case theory and instructed MPC to draft appropriate questions and to brief a medico-legal expert. MPC’s letter of instruction, using LLF’s letterhead, failed to address the issues of breach of duty care and causation. Furthermore, MPC recommended a neurosurgical expert who, unbeknown to LLF and MPC, was defendant-orientated.
LLF received the medico-legal report 12 months later. The neurosurgical expert opined that Dr White was not negligent and avoided, consciously or otherwise, addressing causation.
At no time did LLF brief another neurosurgical medico-legal expert; nor did LLF brief an infectious diseases expert prior to the expiration of the limitation period.
LLF terminated the retainer in 2013 and referred Mr Smith to a new legal firm (NLF).
NLF requested copies of Mr Smith’s medical records and radiological films, but was advised that Dr Black’s records and the radiological films no longer existed.
To succeed in any medical negligence claim the plaintiff must satisfy three essential criteria:
1. breach of duty of care;
2. causation; and
Unless all three criteria are satisfied, the plaintiff will not succeed.
It is imperative, from the onset, to obtain detailed instructions from the plaintiff and/or other lay witnesses relating to his medical and/or surgical history; the onset of his injuries and current symptomology; the impact, if any, of those injuries and disabilities on his past and/or future care requirements, employment opportunities and treatments regimes.
By collecting that information, it is possible to identify which (if any) of the treating medical practitioners and/or institutions are liable for the plaintiff’s injuries/disabilities and/or whether the claim is worth pursuing.
The easiest element to satisfy, at least on a preliminary basis, is damages.
The advent of the civil law reform ushered in a new non-economic loss regime based on a ‘worst case scenario’. Each state and territory has enacted legislation defining when the plaintiff’s injury is compensable and, if so, what proportion of non-economic loss may be awarded.
The general rule in assessing potential damages is that the greater the injury and/or disability, the higher the non-economic loss award.
It is important to determine the potential level of damages for both non-economic loss and economic loss, as there may be significant cost recovery restrictions should the plaintiff fail to exceed certain compensatory amounts.
In this scenario, Mr Smith’s injuries and disabilities are severe and it is highly likely, assuming that he succeeds in his medical negligence claim, that he would receive significant compensation.
WHAT SHOULD HAVE HAPPENED?
LLF should have obtained and reviewed the medical records from Drs White, Black, Grey, ASH, OMG and HWGA.
The hospital medical records should include operation reports, haematology, biochemistry, microbiology, pathology, radiology reports, medical and nursing entries, medication charts, observation charts, referrals and radiological films. The doctors’ medical records should include copies of the operation report, investigations, correspondence to and from medical providers and/or consultation notes.
Those documents, if complete, are crucial in ascertaining which, if any, of the medical practitioners and/or the institutions breached their respective duty of care and/or whether those breaches caused or materially contributed to Mr Smith’s injuries and disabilities.
When considering those documents/records, one is endeavouring to identify the evidence to support the allegations of negligence against the respective medical practitioners/institutions.
Reference to medical textbooks and/or literature assists in understanding the medical conditions/procedures that were performed, and may assist in identifying anomalies recorded in the medical records. This process is essential and time-consuming and involves cross-referencing haematology, microbiology, pathology, medication charts and operation reports with medical and nursing entries.
Analysing the medical records is crucial in enhancing the likelihood of succeeding in a medical negligence claim. If done correctly, one is able to develop and articulate a case theory that, subject to supportive medico-legal expert opinion, will allege that the medical practitioner(s) and/or hospital(s) departed from acceptable standards of care which caused, or materially contributed to, the plaintiff’s injuries.
CASE THEORY AND QUALIFYING EXPERTS
In this case, Mr Smith’s lumbar dura, nerve roots and disc spaces were exposed to the staphylococcus aureus bacteria (SAB), which caused arachnoiditis, discitis, and osteomyelitis.
The case theory ought to focus on how and when the SAB entered Mr Smith’s lumbar dura, nerve roots and disc spaces. There are four possibilities:
1. the SAB entered Mr Smith’s lumbar region via the torn/perforated dura caused by the alleged negligence of Dr White;
2. the SAB entered the region via the surgical wounds following the second decompression laminectomy, but prior to the third decompression laminectomy performed by Dr Black;
3. the SAB entered the region during the lumbar wound debrided and third decompression laminectomy performed by Dr Black; or
4. the SAB entered the region during his fourth decompression laminectomy performed by Dr Grey.
This conundrum can be resolved only by briefing (at least) an appropriate neurosurgical and infectious diseases medico-legal expert.
Choose your experts wisely!
The experts must be properly qualified, experienced in the relevant area and competent to comment on appropriate standards of care and causation.
If one has difficulty in locating an appropriately qualified expert(s), then contact other legal practitioners who work in the medical negligence arena (preferably plaintiff-orientated) and find out whom they would recommend in this scenario.
Those experts should be briefed with all the available medical records and provided with a detailed letter of instruction summarising Mr Smith’s medical history and sequelae.
The letter of instruction to the neurosurgeon should include a series of questions relating to the conduct of Drs White, Black and Grey in their respective management of Mr Smith and whether that conduct departed from acceptable standards of care. If so, did that breach of duty of care cause or materially contribute to Mr Smith’s injuries and disabilities?
The letter of instruction to the infectious diseases physician should include a series of questions relating inter alia to how the SAB was induced into Mr Smith’s dura, nerve roots and disc spaces and whether the SAB, but for the alleged negligence, could have entered the dura, nerve roots and disc spaces by any other route/mechanism. Furthermore, there ought to be several questions that attempt to explain the delay between the SAB exposure to the dura, nerve roots and disc spaces and his subsequent clinical manifestations of arachnoiditis, discitis and osteomyelitis.
Medico-legal reports must be reviewed to ensure that the elements of breach of duty of care and causation have been appropriately and thoroughly addressed.
Sometimes expert reports are ambiguous, deficient and/or fail to answer, properly or otherwise, questions on liability and/or causation and/or fail to comply with the court’s codes/requirements.
Consider, for example, the possibility that an expert’s report may be inadmissible if it fails to contain (either in the body of the report or annexed thereto) his/her qualifications; the facts, and assumptions of fact, on which the opinions were based; the reasons for his/her opinion; any literature and/or other materials utilised to support those opinions; and/or any examinations, tests or other investigations on which the expert has relied.
It is permissible for legal practitioners to contact experts, upon receipt of an expert’s report, to clarify ambiguity, cure deficiencies and to ensure compliance with the court’s codes/requirements. It is not permissible, however, to alter, disguise or conceal an expert’s genuinely held opinion.
In medical negligence proceedings, liability and causation evidence ought to be filed and served with the Statement of Claim.
THE DEFENDANT EXPERT EVIDENCE
It is not hard to imagine, having regard to the above liability and causation possibilities, that the defendant’s expert evidence could advance a hypothesis that exculpates liability and/or causation.
Not responding to and/or ignoring the defendant’s expert evidence would be foolish.
It is imperative to understand the rationale and the reasoning underpinning that evidence. To that end, all the material relied on (including literature) by the defendant’s expert must be obtained, reviewed and analysed.
Typically, the defendant’s expert is provided with medical records (sometimes incomplete), a statement of assumptions and letter of instruction, and asked to assume certain facts. Occasionally, the statement of assumptions and/or letter of instruction exclude pertinent facts/information and/or manipulates the medical records in a way that creates a counter-factual hypothesis.
The defendant’s expert evidence must be provided to the plaintiff’s expert for review and comment. The plaintiff’s expert must either be provided with all the material relied upon by the defendant’s expert or a summary of same, emphasising the salient points that are the cornerstone upon which the defendant’s expert opinion is based.
Moreover, it is prudent to direct the plaintiff’s expert to respond, by way of a supplementary report, to the defendant’s expert opinion. The legal practitioner should draft a series of questions designed to expose the inaccuracy of the defendant’s facts and/or assumption of facts.
If done correctly, those questions will allow the plaintiff’s expert to systematically and methodically critique the defendant’s expert report and provide persuasive reasons why that evidence should be rejected.
It is noteworthy that if an expert produces a supplementary report that affects his/her previous opinion then it must be served, otherwise the engaging party cannot rely on any previous report(s) at hearing.
Mr Smith’s injuries and disabilities are severe. He has arachnoiditis, osteomyelitis and discitis lumbar spinal region. He has permanent back pain and cauda equina syndrome.
In quantifying Mr Smith’s damages claim, he will need to be assessed by, but not limited to, the following:
a) Infectious diseases physician: to determine Mr Smith’s need for current and/or future antibiotics to treat his discitis and/or osteomyelitis. It is likely that Mr Smith will require, at least, biannual reviews for the foreseeable future;
b) Neurologist: Mr Smith’s arachnoiditis is permanent. His arachnoiditis affects the nerves exiting the thoracic T10 to lumbar L5 regions. He will require an electromyogram (EMG) to determine the extent of nerve dysfunction to those nerves;
c) Urologist: Mr Smith’s cauda equina syndrome is permanent. He suffers from faecal and urinary incontinence and erectile dysfunction. Mr Smith may require urodynamic studies to determine the extent of his bladder dysfunction and medication to treat his erectile dysfunction.
d) Gastroenterologist: Mr Smith may require colorectal motility studies to determine the extent of his anal sphincter dysfunction and whether he would benefit from medical or surgical intervention;
e) Rehabilitation physician: Mr Smith will require a detailed assessment from a spinal rehabilitation physician to comment on the extent of his injuries and disabilities and his need for rehabilitation, occupational therapy, physiotherapy, and other services;
f) Occupational therapist: Mr Smith will require an assessment from an occupational therapist, preferably one with experience with spinal patients, to determine his day-to-day requirements, including home modifications and specialised equipment; and
g) Economic loss report: Mr Smith may require an economic loss report commenting on past and future economic loss and superannuation.
Mr Smith succeeded in professional negligence against LLF.
The evidence suggested that Dr Black introduced the SAB into the dura, nerve roots and disc spaces when he performed the third decompression laminectomy through an infected field. The (third) decompression laminectomy was not a medical emergency and should have been postponed until the SAB infection had cleared. But for that surgical procedure, the SAB would not have entered the dura, nerve roots and/or disc spaces and his medical sequelae would have been avoided.
Peter D’Arcy-King is a barrister at Four Selborne, Sydney. PHONE: (02) 9236 4907 EMAIL: firstname.lastname@example.org.
 This article does not discuss issues relating to preparing and/or advising experts on the role and purpose of conclaves and concurrent evidence. Comments on concurrent evidence have been addressed by D Ryan, in ‘The Pros and Cons of “Hot Tub”’, (2013) 119 Precedent 10-14.
 Arachnoiditis: Inflammation of the piarachnoid of the spinal cord and brain (Blakiston’s Gould Medical Dictionary (4th ed) (1997, McGraw-Hill, USA))
 Discitis: Inflammation of a disc, especially of the intervertebral or articular disc (Blakiston’s Gould Medical Dictionary (4th ed) (1997, McGraw-Hill, USA)).
 Osteomyelitis: Inflammation of the marrow and hard tissue of bone (Blakiston’s Gould Medical Dictionary (4th ed) (1997, McGraw-Hill, USA)).
 Cauda equine syndrome: Pain, combined variously with sphincter disturbances and an asymptomatic, atrophic areflexic paralysis and sensory loss in the distribution of the lumbosacral roots (Blakiston’s Gould Medical Dictionary (4th ed) (1997, McGraw-Hill, USA)).
 A discussion how to establish breach of duty of care is beyond the scope of this paper. However general principles of duty of care and standard of care for professionals are found at ss5B-5C & 5O of the Civil Liability Act 2002 (NSW); ss9-10 & 20-22 of the Civil Liability Act 2003 (Qld); ss31-33 & 40-41 of the Civil Liability Act 1936 (SA); ss11-12 & 21-22 of the Civil Liability Act 2002 (TAS); ss48-50 & 57-60 of the Wrongs Act 1958 (Vic); ss5B & 5PA – 5PB of the Civil Liability Act 2002 (WA); ss42-44 of the Civil Law (Wrongs) Act 2002 (ACT).
 A discussion how to establish causation is beyond the scope of this paper. However, general principles of causation are found at ss5D-5E of the Civil Liability Act 2002 (NSW); ss11-12 of the Civil Liability Act 2003 (Qld); ss34-35 of the Civil Liability Act 1936 (SA); ss13-14 of the Civil Liability Act 2002 (TAS); ss51-52 of the Wrongs Act 1958 (Vic); ss5C-5D of the Civil Liability Act 2002 (WA); ss45-46 of the Civil Law (Wrongs) Act 2002 (ACT).
 See s16 of the Civil Liability Act 2002 (NSW); s61 of the Civil Liability Act 2003 (Qld); s52 of the Civil Liability Act 1936 (SA); s27 of the Civil Liability Act 2002 (TAS); s9-10 of the Civil Liability Act 2002 (WA); s99 of the Civil Law (Wrongs) Act 2002 (ACT); ss24-27 of the Personal Injuries (Liabilities and Damages) Act 2003 (NT).
 Consider, for example, s338 Legal Profession Act 2004 (NSW); s181 of the Civil Law (Wrongs) Act 2002 (ACT).
 See B Smith, ‘Practical tips for dealing with expert witnesses’, (2013) 119 Precedent 35-37; I Freckelton et al, Expert Evidence – Law, Practice, Procedure and Advocacy (4th ed) (2009, Lawbook Co, NSW) pp236-52; S Walmsley et al, Professional Liability in Australia (2nd ed) (2007, Lawbook Co, NSW) at [1.2370] – [1.2610].
 Makita (Australia) Pty Ltd v Sprowles  NSWCA 305; (2001) 52 NSWLR 705; also see M Kumar, ‘Admissibility of Expert Evidence: Proving the Basis for An Expert's Opinion’,  SydLawRw 19; (2011) 33(3) Sydney Law Review 427; R French J, ‘Expert testimony, opinion argument and the rules of evidence’  Federal Judicial Scholarship 3.
 See Anderson on behalf of the Numbahjing Clan within the Bundjalund Nation v Registrar of the National Native Title Tribunal  FCA 1539; Traderight (NSW) Pty Ltd v Bank of Queensland Ltd  NSWSC 211; see also G Blake & P Doyle Gray, ‘Can counsel settle expert reports?’ (2013) 119 Precedent 16-19; I Freckelton, ‘The evolving obligations of expert report-writers and expert witnesses’, (2013) 119 Precedent 5-9.
 See Part 31, Division 2, Subdivision 1, in particular rule 31.23 & schedule 7 of the Uniform Civil Procedure Rules 2005 (NSW); Part 5, Division 1 of the Uniform Civil Procedure Rules 1999 (Qld); Practice Direction 5.4 of the Supreme Court (SA); Rules 515-516 of the Supreme Court Rules 2000 (TAS); Rules 44.01-44.03 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic); Order 36A of the Rule of the Supreme Court 1971 (WA); Part 2.12 & Schedule 1 of the Court Procedure Rules 2006 (ACT).
 Whitehouse v Jordan  1 All ER 650 (Whitehouse No 1); Kelly v London Transport Executive  2 All ER 842; Farely-Smith v Repatriations Commission  AATA 637.
 See Rule 31.36 of the Uniform Civil Procedure Rules 2005 (NSW).
 See Rule 31.34 of the Uniform Civil Procedure Rules 2005 (NSW); Stambolziovski v Nestorovic  NSWDC 291.
 See Part 2, ss11-26 of the Civil Liability Act 2002 (NSW); ss98-100 of the Civil Law (Wrongs) Act 2002 (ACT); ss18-32 of the Personal Injuries (Liabilities and Damages) Act 2003 (NT); ss50-67 of the Civil Liability Act 2003 (Qld); ss51-58, 60 of the Civil Liability Act 1936 (SA); ss24-28E of the Civil Liability Act 2002 (TAS); ss28A-28N of the Wrongs Act 1958 (Vic); ss6-15 of the Civil Liability Act 2002 (WA); ss98-100 of the Civil Law (Wrongs) Act 2002 (ACT); ss18-32 of the Personal Injuries (Liabilities and Damages) Act 2003 (NT); see also D Villa, Annotated Civil Liability Act 2002 (NSW) (2nd ed) (2013, Lawbook Co, NSW); H Luntz, Assessment of Damages for Personal Injury and Death: General Principles (4th ed) (2006, LexisNexis).