Case Studies

The process of engaging a lawyer and making a claim for compensation can be the last thing a family wants to deal with when a loved one receives a bad diagnosis.

Being told you have mesothelioma is not worthy of comparison to any other life event that might drive someone to a lawyer.

How you behave as a lawyer acting for the person in this situation is an important element for the respectful management of what such a dying person might personally regard with some reluctance or even suspicion.

Many people in this situation have never dealt with lawyers or the legal process.  For many the idea of suing for compensation is wrongly of course, akin to asking for a “handout”.

The last 3 mesothelioma cases in which I acted had all the typical objective elements of sadness (contrasted with the abiding humour that seems almost paradoxically to remain) along with various subjective challenges of proof that are commonly associated with proving a claim that arises out of events that occurred decades before.

Kim

Kim was only 18 or 19 when she worked in a secretarial role for a business that amongst other things supplied asbestos cement building sheets manufactured by James Hardie & Coy Pty Limited.  Although Kim was a young secretary she went to the warehouse area where these asbestos cement products were cut and shaped for use and supply and sadly at the relative youthful age of 57 she was diagnosed with mesothelioma.

The company that had employed her was deregistered and long gone, and an insurer of that deregistered company for the relevant period could not be identified.

Accordingly the claim that remained was against the manufacturer.

Researching these historical matters regularly involves enquiries of the old Workers’ Compensation Commission looking for a company or its insurer, speaking to directors who may still be alive that you might track down from company searches or even from a visit to the Mitchell Library looking for historical material that might point you in the right direction.  Witnesses are often hard to find and often it is a matter of relying on your own experience with previous claims and matters that can help you through the puzzle.

Sadly in Kim’s case the cancer was so aggressive that she passed away, not before I had got the claim and particulars of it filed and served, but before there was time to resolve her matter and it fell to her husband to complete the claim as the legal personal representative of the estate.

That process required first securing probate and then moving for the appropriate substitution in the Tribunal.  These procedural matters can take time before the Claims Resolution Process can again direct the parties to mediated negotiations and settlement.  That had its own emotional consequence for Alf who has coped with the loss of his wife when they were planning many years together.  Finalisation of the claim in May 2017 provided considerable relief.

John

As a young man John did an apprenticeship as a carpenter/joiner. That ultimately led him into his own business working with lots of builders in NSW  doing the roofing on new housing.

He moved from job to job with some regularity and worked with so many different builders and in varying partnerships with different people along the way that it was almost impossible for him to remember the details.

Collecting and collating the history of that large variety of work and work places, the identity and availability of former workmates, details of the varying products that he purchased from different hardwares throughout his career and so on, was again typically challenging.  John was coping with his illness and the chemotherapy that was being prescribed which made him feel worse than the illness.

John was almost inclined to the view that the legal process was more than he could cope with.  He was reassured that it was in our hands and that it was not for him to worry.

Ultimately, the history and chronology was put in order and with records of hardwares that supplied the various materials coupled with his own affidavit evidence, the matter was successfully resolved at a mediation in March 2017.

Ken

Ken took regular walks and played golf and became puzzled and concerned at the sudden and severe lack of breath he encountered on one of his walks.  Unsurprisingly the diagnosis that followed was a blow for him and his wife.  They had not then recovered from the recent loss of their daughter to cancer.

Ken had always been handy and had trained as an electrician.  His early employer and the place where he was first exposed to asbestos, had long gone and there was no one to sue there.  Ken had been young at that time and so he really did not know asbestos products or the manufacturers with any certainty.

Again however, he had done subsequent building and electrical work throughout the rest of his career and was able to identify James Hardie products that he had worked with.

The progress of Ken’s cancer was such that it required an urgent application to the Tribunal to take Ken’s evidence at his hospital bed.  Following the taking of that evidence and with authority to his 2 sons to attend at the mediation on his behalf, Ken’s claim was able to be settled and Judgment entered only shortly before Ken passed away in April 2017.

The ability and experience of managing matters with urgency to ensure the proceedings are filed and the dying person’s rights not lost with death, is critical.  Similarly the experience of being able to bring a matter urgently to the Tribunal’s attention and have evidence taken in those circumstances is critical.

Issue: A claim against an ophthalmologist for failure to diagnose retinal detachment, resulting in total loss of vision in the right eye. The primary issue concerned a factual dispute as to whether the ophthalmologist had dilated the plaintiff’s pupils in order to conduct a proper ophthalmic examination in respect of the plaintiff’s reported symptoms.

Action: the matter was required to be taken to trial because the defence was not prepared to make any offer of settlement, notwithstanding the fact that the plaintiff had offered to compromise his case by 50{f7997e44a56e4dcb6b403916d1c885f766657a7029796a362277d8759c78b4e0} on account of the factual dispute. The defence alleged that due to the elderly age of the plaintiff (80’s), his memory regarding the examination was not reliable. In acting for the plaintiff we were confident of the accuracy of his instructions, primarily by reason of the fact that he had driven himself home from the appointment in circumstances where this would have been impossible if his pupils had in fact been dilated, as alleged by the defendant. As a matter of strategy, an offer of compromise for 50{f7997e44a56e4dcb6b403916d1c885f766657a7029796a362277d8759c78b4e0} was made and rejected.

Outcome: The matter was settled after day 3 of the trial, on terms favourable to the plaintiff. The defendant was subpoenaed for the balance of her patient records seen on the same day as the plaintiff, to test her memory in light of the “textbook” answers to interrogatories yet brief contemporaneous notes made in respect of the plaintiff.

Issue: A patient lived for 18 months after a bowel operation with a pair of scissors lodged between her bowel and spine. After her complaints of pain were ignored, she re-presented to the Hospital demanding an abdominal x-ray, whereupon the diagnosis was made. Further surgery was required to remove the scissors and a small section of bowel, such that the main injury suffered by the patient was “nervous shock”.

Action: Before seeking legal advice, the patient created a website where people could post their experiences of medical negligence and also went straight to the media with her story. She was outraged that the Hospital management “closed ranks” on her and adopted the media position that there had been no breach of duty because there are no protocols to count for surgical instruments; only swabs.

The patient was genuinely shocked at the discovery and brought a conservative claims for damages which was significantly reduced on account of the recent tort law reforms (Healthcare Liability Act NSW 2001 and Civil Liability Act NSW 2002) that had been introduced just prior to her cause of action being discoverable.

However, the patient was offended by the Hospital’s response, leading her to attract considerable public and media attention in her “campaign” to tell the story of her ordeal and attempt to prevent the same thing, indeed any medical misadventure, from happening to others.

This is a situation where prompt and sensitive handling of the matter through “Open Disclosure” could have averted the adverse publicity that plagued the Hospital. This comprised a number of morning radio interviews, an editorial Opinion piece in the Telegraph, media articles in local newspapers and a number of television interviews.

Chris O’Gorman came to see me in the latter part of 2007 with concerns that a mass that was apparent on her February 2006 mammogram had never been reported to her. Chris’s tragedy was that despite having regular mammography check-ups, she had discovered a lump in her breast on New Year’s Day 2007 which was diagnosed as breast cancer. This led to a mastectomy and sadly, some nine months later the disease metastasized into her lungs and brain. I had been advising her in relation to a “loss of chance” case for the missed opportunity for earlier treatment of the breast cancer, but with the metastases an expedited claim was brought in respect of what we argued were new injuries.

The case was expedited and required intense management as expert oncological, pathological and radiological material was raised and had to be dealt with without delay. Our specialised ability to assemble this evidence was vital.

Ultimately in his Judgment, Hoeben J agreed with our approach and found that Rufo v. Hosking [2004] NSW CA 391, the leading NSW case on “loss of chance” did not apply. This meant a judgment for the full amount of damages rather than some percentage only.

The evidence of the competing radiological experts interpreting the alleged “suspicious changes on 2006 mammogram” was given concurrently. The Judge was availed of the opportunity of hearing the witnesses together and assessing their diametrically opposed opinions as to the alleged “significant change in size” in the cystic mass which we argued was apparent in the post-menopausal Plaintiff’s mammogram.

The Court’s Judgment is a fantastic outcome for an individual who had to overcome not only the personal tragedy she was facing but also the resources of an Area Health Service which was determined to deny her claim.

Issue: The infant required neonatal admission following birth with respect to rapid breathing however was discharged to the care of a paediatrician following apparent improvement. The parents reported a number of symptoms to the paediatrician over the course of 10 months, including sweating with feeding, failure to gain weight and cyanosis of extremities, but were told that nothing was wrong. The parents sought a second opinion at 10 months, whereupon diagnosis of atrial septal defect was made and corrective surgery was required. The child will require continuous oxygen for the rest of his life expectancy which may be considerably reduced.

Action: Claim against the treating paediatrician was problematic with respect to the overlap between liability and causation. By the time that breach of duty in failing to make the diagnosis when signs were evident could be established, the causal outcome attributable to any delay in diagnosis was argued to be negligible.

Outcome: Matter settled on commercial terms.

Issue: Failure to diagnose Thalassaemia Major, a congenital blood disorder, in the foetus. The disorder is known to be prevalent in persons of Asian and Mediterranean descent. The disorder results in anaemia, requiring regular treatment by way of blood donor infusions and cumbersome desferal treatment to remove excess iron from the body. Complications that may arise from regular blood transfusions include an overload of iron build up in vital organs causing diabetes, liver disease and heart failure.

In the subject case, the pregnancy was being managed by a public hospital antenatal clinic. Both parents were Asian and the mother’s antenatal blood test had revealed that she was a carrier of the Thalassaemia Minor gene. The significance of this result was missed and the father (who also turned out to be a carrier of the Minor gene) was not tested and so neither was the foetus.

The parents claimed that they would have sought a termination of the pregnancy if the diagnosis had been made and claimed the costs of raising the child with respect to the additional costs associated with her treatment and care. 

The weakness of the case was with respect to “causation”, in that the availability of termination was problematic for the plaintiff due to the relatively late timing in the gestation period (towards 18 weeks) of when the diagnosis would have been made if testing of the father and foetus had occurred. 

Damages were also difficult to quantify in that the child was in good health with regular treatment; general damages were not claimable; and the greatest expenses were likely to be incurred after attaining adulthood, at which time the condition may cause other chronic problems. 

Action: Due to the speculative nature of damages and problems with causation, a commercial settlement was achieved.

Outcome: A commercially sound result to all parties with avoidance of intensive trial preparation and attendance costs.

Issue: Failure to diagnose breech presentation, cephalo-pelvic disproportion, etc and alleged negligent obstetric technique in delivery of the baby, resulting in brachial plexus injuries and Erb’s Palsy.

Such cases are usually very problematic in being able to prove breach of duty, in that impaction of the foetal shoulder in the birth canal can often be unforeseeable and it is imperative that delivery occur quickly before asphyxiation occurs. Proving breach of duty in failing to prevent a brachial plexus injury in such circumstances can also then be difficult.

Action: It is imperative to obtain quality expert evidence from a highly regarded practising O&G who is also able to address the technical issues and delivery techniques with clarity and persuasion. All cases have been settled once liability evidence has been obtained, and also with enough quantum evidence to establish the severity of the injury and extent of care and treatment requirements.

Outcome: A commercially sound result to all parties with avoidance of intensive trial preparation and attendance costs.

Issue: Failure to diagnose neural tube defects of the foetal spine in utero, resulting in the birth of the baby with spinabifida; i.e. paraplegia and a claim for the additional costs of raising a child with disabilities. 

Such claims can be distinguished from “wrongful life” claims and also from “wrongful birth claims” in respect of failed sterilisation, where the issue of legality of termination is in dispute.

The challenge to both sides in these cases is an unfavourable legal precedent with respect to availability of termination on therapeutic grounds.  Also of concern is the possibility that a favourable plaintiff judgement may find liability to pay for costs beyond the age of the child’s 18th birthday because, notwithstanding the plaintiff parent’s lack of legal liability to care for the child beyond this age, their natural inclination would be to continue to support the child for the rest of their lives.

Cases we have been involved in have concerned various issues with respect to breach of duty, including:

• whether appropriate information was provided to the mother by the antenatal care provider/s regarding the availability of antenatal ultrasound and other tests, having regard to various risk factors of the mother or at all;
• whether referral for such testing was arranged in a timely manner, so that diagnosis could be made at the optimum time (12 weeks);
• whether appropriate information was provided to the mother regarding the purpose and limitations of antenatal ultrasound scans performed before and after 12 weeks’ gestation;
• whether the ultrasonographer performed the scan with the requisite degree of skill and care to capture appropriate real time images for diagnostic purposes; 
• whether the radiologist reported appropriately on the scans; i.e. negligent failure to diagnose abnormality visible on the scans.

Similarly,  cases we have been involved in have concerned various issues with respect to “causation”, including:

• whether the parent would have sought to terminate the pregnancy if the abnormality had been diagnosed at the relevant time;
• whether a termination would have been available to the parent given the timing of the alleged failure to diagnose.

Action: We have settled all of our “spina bifida” cases by way of mediation well prior to the hearing date, once all liability evidence has been obtained and sufficient evidence regarding life expectancy and quantum of damages; for various sums having regard to the respective difficulties in proving breach and/or causation

Issue: Inadvertent intrathecal injection of Vincristine in a 28 year old burkitts lymphoma cancer patient, admitted for routine chemotherapy treatment. The injection was to be administered intra-muscularly. The inadvertent intrathecal injection caused the death of the patient.

The drug was toxic and known to be fatal if injected into the spine and, despite emergency surgery to drain his cerebro-spinal fluid that was performed 4 days after when the error was discovered, the patient died a slow and painful death involving gradual paralysis from his feet upwards, resulting in quadriplegia and blindness and difficulty breathing before he eventually died, all of which was witnessed by his family who kept a bedside vigil.

Action: McLaughlin & Riordan acted for the patient and his Family in this matter on a pro-bono basis. The patient did not have any dependants and his Family did not wish to bring civil claims for nervous shock. They sought legal advice and support shortly after the inadvertent “lethal injection” was diagnosed, when their request for emergency provision of a copy of the Hospital records was responded to by Hospital administrative staff stating that they were obliged to comply with the request within 28 days and not immediately.

Outcome: This incident occurred in 2003 and well prior to the introduction of the NSW Health Directive regarding “Open Disclosure”. The Family were upset at the perception that once the mistake was realised, the hospital went into damage control mode, denying that the Family had raised concerns over the patient’s rapid decline on the day of the injection and blocking access to Hospital management.

Ultimately, the Family campaigned for the introduction of a number of changed procedures in the Hospital and across all Hospitals in Australia, based on UK 2001 protocols introduced after a series of similar errors. 

This incident resulted in significant adverse publicity for the Hospital, including local and Sydney print media; and a story on the ABC’s “7.30 Report”. The Family’s resort to the media was mainly due to its perception of the Hospital’s poor management of the catastrophe which added to the Family’s grief and need for validation.

We are of the view that, had the Hospital communicated openly with the Family akin to the “Open Disclosure” requirements, legal representation and media involvement as sought by the Family, would probably not have occurred.

McLaughlin & Riordan are experienced in handling such claims. Some scenarios have included a range of alleged failures on the part of:

• nursing staff to notice and respond to “warning signs” of foetal distress, including those shown on the CTG trace;
• junior medical staff to summon Consultant advice and assistance in relation to induction of labour, failure of labour to progress;
• junior medical staff to properly manage and deliver a breach presentation by vacuum extraction;
• a consultant obstetrician & gynaecologist to properly manage and treat gestational diabetes;
• systems and communication between hospitals regarding the delay in transfer of a patient for emergency caesarean section; 
• neonatal medical staff in diagnosis and treatment of hypoxic ischaemic encephalopathy in the newborn.

Issue:

Generally speaking, a successful claimant is required to establish that there was a breach of duty in the manner in which the labour was managed and that this breach actually caused the “cerebral palsy.”

Action:

A number of different expert opinions are required to determine the liability issues in dispute and assess the merits of the claim:

Obstetrician & Gynaecologist: to advise as to the standard of care required and to identify any breaches

Paediatric Neuro-radiologist: to advise as to the nature and timing of brain injury, (eg indicative of maldevelopment during the first or second trimester of pregnancy; indicative of hypoxic insult to a mature foetal brain, etc)

Neonatologist: to advise as to the condition of the baby at birth and whether there were signs of hypoxia, acidosis, hypoglycaemia and the state of evolution of other conditions that signify a recent hypoxic insult to the baby i.e. during the labour, or before the labour; 

Paediatric Neurologist: to confirm the diagnosis; i.e. the specific type of cerebral palsy suffered; eg diplegia, spastic quadriplegia, etc, as different types of cerebral palsy may be associated with different causes, many of which are not attributable to “birth asphyxia”.

Before such expert opinions are sought, it is important to obtain detailed discovery, including copies of all clinical records, (any previous pregnancies and confinements, the pregnancy, confinement and neonatal treatment in question), antenatal ultrasounds; neonatal cerebral ultrasounds, CT scans and MRI’s; and a paediatric cerebral MRI. Clinical records of the pregnancy in question may also include GP records, hospital out-patient records, and private O&G records.

Often, the clinical records may not contain various facts alleged by the claimant, and this may be the focus for interrogatories, and the formulation of statements of assumption that may lead to primary factual disputes when the validity of the expert opinion/s expressed is dependent upon whether the assumptions are accepted by the Court.

In addition to the liability evidence to be obtained in these cases, is the issue of quantifying the “catastrophic injury” claim. This most importantly involves expert evidence addressing the issue of life expectancy, and also addressing the multiple heads of damage which usually include: non economic loss, economic loss, requirement for equipment, pharmaceuticals, medical and allied healthcare, housing and motor vehicle modifications, nursing and domestic assistance,  assessment of past voluntary services, additional holiday expenses and funds management.

Outcome:

Depending on the issue of life expectancy, successful claims (and settlements) may easily reach or exceed $12million, not including legal costs. Accordingly, it is important to manage such claims promptly by seeking to obtain detailed and quality expert evidence as to liability, with a view to formulating a cost effective resolution strategy.

The challenge to obtain a cost effective outcome can be more difficult when there are multiple defendants to the claim. However, we hold to the belief that adopting a pro-active approach to investigating the claim