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HEALTH AND MEDICAL NEGLIGENCE LAW AUSTRALIA
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Litigation - NEWS
22.11.07 NSW: Parents successfully settle drug case: Misoprostol RELIEF gave way to emotion as the parents of a six-year-old boy born with cerebral palsy as the result of a controversial drug trial, settled their cases against Wagga Wagga Base Hospital. Source: SMH 22.11.07 UP to 12 mothers who had disabled children after a drug trial could sue a hospital for millions of dollars after it agreed to pay more than $750,000 to a woman whose child was born with cerebral palsy. Source: The Age 19.11.07. More than 1,000 women may have taken part in the trial at hospitals across Australia, including 250 women at Wagga Wagga Base Hospital. Source: ABC news 21.11.07.
25.05.07 Quadriplegic negligence case dismissed A man left quadriplegic after falling from a tree in an aborted suicide attempt has failed in his bid to sue a hospital for not properly treating his mental health problems. Timothy Walker fractured his spine after falling from a tree in the backyard of his Glenbrook home in the Blue Mountains, west of Sydney, in March 2001. The then 19-year-old climbed the tree to hang himself just 11 days after being discharged from the Pialla Unit, a psychiatric wing of Nepean Hospital, following a previous suicide attempt. He claimed the hospital should have prescribed him anti-depressant or anti-psychotic medication, counselled him and detained him as an involuntary patient for at least two weeks for assessment. But NSW Supreme Court Justice Carolyn Simpson on Friday dismissed the negligence lawsuit, ruling that Sydney West Area Health Service staff had not failed to act "in a manner that ... was widely accepted in Australia by peer professional opinion as competent professional practice". Justice Simpson found hospital doctors had assessed Mr Walker and decided not to give him anti-depressants because he refused to give up drinking alcohol, which could cause a reaction with the medication. She also found the health service conducted home visits after his discharge, during which he reported feeling better. Justice Simpson ordered Mr Walker to pay the health service's legal costs. Source: SMH 25.05.07 06.10.06 Poor referral info may leave GPs liable (Medical Observer, 6 October 2006) 05.09.06 Botched birth victim gets $5m damages A 10-year-old boy who suffers from cerebral palsy as a result of mistakes made during his birth has been awarded more than $5 million damages by a Brisbane court. Christopher Hills, who was born on September 6, 1996 at the Toowoomba Base Hospital, went into foetal cardiac arrest during his birth, and although he was delivered by emergency caesarean, he suffered brain damage which caused cerebral palsy. The State of Queensland admitted liability in the case on behalf of the hospital and staff it employed, but had argued about the assessment of damages. Queensland Supreme Court Justice Phillip McMurdo, in Brisbane, ordered a total of $5,390,397 in compensation, including $2.97 million for future care and $519,226 for loss of future income. (Herald Sun/AAP, 4 September 2006) 01.09.06 Hospital sued over boy's death A FATHER who lost his son to meningococcal disease is suing a South Coast hospital after it allegedly twice sent him home with his sick child. Nicholas Constantini, 5, died 48 hours after his father first took him to the Shoalhaven Memorial District Hospital in January last year. Yesterday his father, Roy Constantini, of Nowra, sued in the NSW District Court, claiming damages for psychiatric injury he has suffered since his son's death. 27.08.06 Misdiagnosed patients entitled to sue 10.08.06 Board faces multi-million-dollar payouts over bogus psychiatrist- Vincent Berg THE advisory board that allowed rogue surgeon Jayant Patel to operate is now facing multi-million-dollar lawsuits over the treatment of hundreds of patients by a bogus Russian psychiatrist. In the first court case against the Medical Board of Queensland arising out of the so-called Dr Death scandal, three patients of Vincent Berg are seeking damages over his counselling and the medication he prescribed for their conditions. The lawsuits were filed this month. Mr Berg, 54, is undergoing treatment at a psychiatric ward on the Gold Coast. A teenager who is one of the claimants in the civil action was diagnosed as having a mental condition by Mr Berg during a home visit to his mother. Mother and son have claimed they were prescribed dangerous and inappropriate drugs by Mr Berg, who treated 259 patients during his year's employment at Townsville hospital in 2000. Despite hospital authorities learning that Mr Berg's Russian qualifications were fake in late 2002, his former patients were informed only through the Morris and Davis inquiries that arose out of the Dr Death scandal. The inquiries heard that authorities took the decision not to tell patients about Mr Berg because they feared it could lead to them stopping their medication and counselling or even attempting suicide. A Queensland Health spokesman said an immediate review was launched of "all of Mr Berg's patients that could be found". The three former patients - one of whom claims she has attempted suicide three times as a result of Mr Berg's treatment and medication - are seeking more than $1 million in damages. It is understood more of Mr Berg's former patients are also considering legal action. Any payouts would come from Queensland Government's insurance fund. The patients have been forced to file the court actions after being excluded from the special mediation process extended to former patients of Dr Patel, who is now living in the US. Earlier this week, Queensland Attorney-General Linda Lavarch said 86 claims for compensation by patients of Dr Patel had already been settled. Almost three hundred patients are understood to be involved in the out-of-court mediation. See full article by Michael McKenna, The Australian.
08.08.06 86 Patel claims settled EIGHTY-six claims by former patients of rogue surgeon Jayant Patel have been settled, Queensland Attorney-General Linda Lavarch says.
Dr Patel, an Indian trained doctor now living in the US, is being investigated over a number of deaths at Bundaberg hospital where he was formerly director of surgery. A special process has also been set up to compensate his former patients. Ms Lavarch told Parliament 86 claims had been settled so far and a further 19 mediations were scheduled for next week. She said Ian Hanger QC, who is mediating in more than 100 cases, had told a patient support group most claims had been amicably settled. Source: news.com.au 08.08.06. 24.07.06 Hospital audit on death led to payout Nardia Annette Cvitic, a 31-year-old mother of two, died from massive blood loss and organ failure after a hysterectomy performed by Bruce Ward at the Mater Hospital in 2002. A drain inserted into her pelvic area apparently punctured a major vein, a mistake compounded by Dr Ward wrongly prescribing a blood-thinning agent. The Mater commissioned a surgical audit from two professors who examined Dr Ward's treatment of 10 patients, including Cvitic, and warned "something is radically wrong and it cannot continue". District Court judge Helen O'Sullivan approved a settlement last week, a legal requirement given the age of the beneficiaries. Cvitic's youngest son, a 10-year-old diagnosed after his mother's death with Asperger's syndrome, will have $115,000 held in trust, while her eldest son, 16, will have $60,000 held in trust. The figures represent only what Cvitic would have provided for her children had she not died, and do not cover damages or compensation, even though dependency claims are usually an acknowledgement of negligence. Dr Ward was a professor at the University of Queensland for 10 years but left in 2003. While the Medical Board of Queensland has maintained his registration, he has lost the right to operate at the Mater and other public hospitals, but is understood to still work at Brisbane's Sunnybank Private Hospital. Australian Lawyers Alliance state president-elect Ian Brown said dependency claims were capped by the state Government. "Dependency claims, just like all others, are governed by the unfair restrictions of the liability reforms," Mr Brown said. Fur full article see: Sean Parnell, The Australian.
21.07.06 Victims Free to Sue Decades Later VICTIMS of childhood sexual assault, medical negligence and workplace accidents could now sue for damages decades after the event, following a landmark High Court decision that will force former ATSIC chairman Geoff Clark to defend claims he led the 1971 pack-rape of a 16-year-old girl. The judgment, which was opposed by justices Michael Kirby and William Gummow, specifically applies to Victorian law, but will have ramifications around the nation. It means that more people who have suffered personal injuries will be able to explore their rights beyond the statute of limitations. That will be the case particularly in circumstances where there is delayed onset of injury or where they do not have access to information or knowledge about the cause of their injury. Cases that could now proceed include medical negligence actions in which, for example, a surgical object is left inside a patient but the effects are not known for many years; and cases involving exposure to occupational hazards, such as cancer-causing chemicals, where an illness takes years to emerge, also where psychiatric injury has taken years to manifest. Even those cases in which a claimant knows they have an injury, but does not become aware for years later than the injury was caused by someone else's negligence, would be affected by yesterday's judgment. Source: Natasha Robinson, The Australian.
20.07.06 SCHULTZ v. BAILEY [2006] NSWSC 727 Patient repeatedly expressed anxiety about family history of cancer and the possibility that he had symptoms indicative of bowel cancer – general practitioner made arrangements with specialists for tests in relation to the symptoms – patient’s anxiety escalated – general practitioner diagnosed patient’s delusion beliefs as “psychotic” – general practitioner prescribed an anti-psychotic drug – patient suffered catastrophic but rare side-effects from the anti-psychotic drug – patient was hospitalised and underwent significant treatment for the side effects – whether the general practitioner was negligent in diagnosing psychosis. Conclusion- Doctor was not negligent. The defendant doctor was not in breach of her duty of care to the plaintiff. per Hall J: " A decision by Dr. Bailey to prescribe Melleril on the basis of her assessment of the plaintiff over the period up to 20 July 2000 in the context of all the matters bearing upon the plaintiff’s condition I consider on the evidence was well within the range of legitimate clinical judgment. Whether the decision would necessarily have been considered by a specialist psychiatrist to have been “correct” is not the appropriate test. It is whether a general practitioner, in the actual circumstances presenting to Dr. Bailey on 20 July 2000, could reasonably have considered that Mr. Schultz’s presentation was consistent with or indicative of distorted thinking of a psychotic nature. Applying that test, I am of the opinion that it was open to Dr. Bailey to make a judgment to that effect and that the prescription of Melleril was, accordingly, an appropriate course of treatment."
08.06.06 Surgeon's advice queried A HOBART woman is taking steps to sue a former Hobart neurosurgeon and a hospital for pain she has suffered since having a neck operation nearly 10 years ago. It is alleged that the advice and the surgery were incorrect and negligent and in breach of a duty of care. She has to apply for an extension of time to be allowed to bring her case. The application is due to be heard on June 28. See article By GAVIN LOWER http://www.themercury.news.com.au/common/story_page/0,5936,19399686%5E3462,00.html
03.06.06 DYING Hobart mother Deborah Carney, who has twice failed in her suit against her doctor for alleged negligence, was yesterday ordered to pay his court costs. The former pediatrician had been seeking damages of more than $2 million for lost wages, medical expenses and pain and suffering. She is expected to face a six-figure bill for Dr Newton's legal costs but is proceeding with an appeal seeking either a judgment awarding damages or a third trial of the action.
12.04.06 Loss of a Testicle equates to 20% of most extreme case under Civil Liability Act NSW On 9 September the employee consulted Dr Khan, a general medical practitioner, who failed to diagnose the injury. On 10 September 2001 he consulted another general practitioner who correctly diagnosed the injury and arranged for his urgent admission to hospital. Due to the delay in diagnosis, the testicle had become necrotic and had to be removed. The District Court assessed damages at $86,622.70, assessing the loss of the testicle at 30% of a most extreme case for non-economic loss. Justice Hislop (with President Mason agreeing) held that whilst the employee suffered pain, anxiety, embarrassment and depression for some months following the injury, he had been left with no physical disability. His disfigurement was in a part of the body normally covered by clothing and he had declined a prosthesis. The Court of Appeal decided that cases assessed below 15% of a most extreme case typically were soft tissue injuries which healed rapidly. The employee’s injury was more significant than that but fell short of one-third of a most extreme case. The court reduced the percentage of the most extreme case from 30% ($88,500) to 20% (equating to $14,500). Past out of pocket expenses (agreed): $ 418.70. Past wage loss- $ 2,704.00. TOTAL- $ 17,622.70. Khan v Polyzois [2006] NSWCA 59
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