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The importance of experts and evidence

Zora v St Vincent's Hospital Sydney Ltd [2016] NSWDC 365 serves as a reminder of the need for strong expert evidence in medical negligence cases and the importance the Court may place on evidence when making its determination.

In this case, the Plaintiff underwent a coronary angiogram procedure at Liverpool Hospital, which required a catheter to be inserted in his left and right coronary arteries (of his heart) via the artery in his wrist. This day surgery involved contrast dyes being injected into the arteries to detect any blockages in the heart. 

During the procedure, blockages were detected. However, because they did not require immediate treatment and did not affect the Plaintiff's vital signs, he was discharged that afternoon.

The next day, the Plaintiff suffered chest pains and was re-admitted into Hospital. Investigations found that the Plaintiff had suffered a myocardial infarction (heart attack) requiring surgery. While not conclusive, the investigations also suggested the Plaintiff's heart attack may have been caused by a dissection of the artery during the angiogram, which became the basis of the Plaintiff's claim against the Hospital.

The Court had to determine whether there was a dissection during the procedure and if the angiogram was performed negligently or in line with acceptable professional standards.

The Plaintiff's cardiology expert gave two reports on the matter (and subsequently gave a joint report with the Defendant's expert). However, the reports were inconsistent and included different findings on whether or not there was a visible dissection, and if the procedure was performed according to professional standards. By contrast, the Hospital's cardiology expert gave one report stating that the catheter was reasonably placed (and in line with peer professional standards) and there was no evidence of dissection.

Ultimately, the Court favoured the Hospital's expert evidence and held that if a dissection had occurred, it was not caused by the angiogram. The Court also rejected that the angiogram was performed negligently, despite the catheter not being in the optimal position. 

We would like to acknowledge the contribution of Mark Doepel, Steven Canton and Dylan Moller to this article.

Significant damages for young plaintiffs in negligence cases

The decision of Pierce v Metro North Hospital and Health Service [2016] NSWSC 1559 is a recent example of where medical negligence, particularly involving younger patients, can lead to significant damages being awarded (when assessed over the patient's lifetime).

The Plaintiff in this case was a 21 year-old woman with epilepsy caused by an antenatal stroke. To determine if she was eligible for surgical treatment, the Plaintiff underwent telemetry testing at Royal Brisbane and Women's Hospital—a test that required an induced seizure under hospital supervision, through medication withdrawal and sleep deprivation. The Plaintiff claimed that during the procedure, hospital staff did not intervene as promptly as they should have to end the seizure, instead allowing her to descend into a prolonged period of seizure activity lasting two hours and 44 minutes. The Plaintiff claimed this led to a permanent deterioration of her epilepsy.

The Hospital admitted a breach of duty of care by failing to:

  • treat the Plaintiff's seizure in a timely manner
  • properly instruct staff on how to give appropriate care and treatment, and
  • take steps to terminate the Plaintiff's seizure within an appropriate time.

The issue remaining was one of causation: did the Hospital cause the deterioration of the Plaintiff's epilepsy or was any deterioration a natural regression? In determining this issue, the Supreme Court of New South Wales looked at diaries and clinical notes, as well as expert evidence identifying the frequency of the Plaintiff's seizure activity before and after the Hospital's test. The Court determined that there was a significant increase in seizure frequency after the Hospital test, caused by the Hospital's breach of duty.

As the injury occurred in Queensland, Queensland law was used to assess damages. The Court awarded damages in the amount of $1,672,790.75. The most significant area of damages was for future care, as the Plaintiff was assessed as 41% on the injury scale value.

We would like to acknowledge the contribution of Mark Doepel, Steven Canton and Dylan Moller to this article.

Commissioning a healthier complaints process in 2017

Earlier in the year, Victorian lawmakers passed legislation to revamp and expand the existing health complaints system. The Health Complaints Act 2016, which came into force on 1 February 2017, incorporates the recommendations of a government-appointed expert panel that reviewed perceived deficiencies in the existing system. We covered these changes earlier in the year, which can be read about in this article.

Mental health reforms to impact hospitals and medical practitioners

The Mental Health Act 2016 (Qld) (MHA) recently came into effect in Queensland, with the aim of overhauling many aspects of patient interaction with hospitals and clinicians, including changes to policies and procedures surrounding patient rights, assessments, restraint, treatment and care.

Specific changes include:

  • authorised doctors will be required to discuss matters with patients (and support persons where appropriate) when:
    • recommending assessment of a patient
    • treatment authority is issued for a patient, and
    • deciding (or amending) the recommended treatment plan proposed for a patient.
  • authorised doctors must take reasonable steps to ensure the patient understands the information given
  • recommended treatment plans for patients and, subsequently, the actual treatment received by the patient must be recorded in health records, and
  • before treating any patient, medical practitioners must direct their attention to the presence of an advance health directive. 

While future changes to the MHA have been flagged to reduce the number of forms medical practitioners need to complete, it is clear from the new requirements that there is an increased emphasis on recording clinical decisions and treatment. Hospital and medical practitioners must be aware of these requirements and ensure they adopt appropriate practices to comply with the MHA.

For medical indemnity insurers, increased reporting obligations are generally a welcome development and, when complied with, assist to defend medical negligence claims.

Validity of Mental Health Review Tribunal decisions at risk

Shortly before the MHA came into force, the Queensland Government took the uncommon approach of expediting the Mental Health Amendment Act 2017 (Amending Act) to retrospectively confirm the validity of decisions made by the Mental Health Review Tribunal.

This arose after a Tribunal member was discovered to lack the necessary legal admission qualifications necessary to hold such a position.

While the Amending Act confirms the validity of previous decisions, it also permits potentially affected individuals to seek review of decisions via a special tribunal. A review request must be made within six months of the start of the Amending Act.

Accordingly, insurers should be on notice that existing Tribunal decisions can be re-heard and potentially overturned.

We would like to acknowledge the contribution of Mark Sainsbury and Monica Jaynes to this article.

Amendments to the Court Rules relating to expert reports

The Supreme Court of South Australia has amended the Supreme Court (Civil) Rules 2006 (SA) and District Court (Civil) Rules 2006 (SA), altering the manner in which these Courts deal with expert reports. The amendment, Supreme Court Civil Rules 2006 (Amendment No.33) (Rules), came into effect on 1 October 2016.

Practitioners must now set out in letters of instruction to experts the assumptions the expert is requested to make, the materials provided and questions on which the expert is asked to express an opinion under rule 160(2A) of the amendment. While this was previously common practice, it was not mandated by the Rules and should bring consistency to the engagement of experts. Rule 160(2B) requires this letter to be sent to other parties within five days of sending to the expert.

Rule 160 now provides that where an expert (expert one) is responding to another expert (expert two) in the same field of expertise, or where another expert deals with the same subject matter, expert one should confer with expert two and state in their report if they have done so and if not, why not. When experts confer, they are directed by rule 160(3)(h) to identify the differences in assumptions made in each other's reports.

The Courts are clearly seeking to have experts engaged at an earlier stage in proceedings. Previously, only in certain cases would the Court order experts to participate in a "conclave" before trial to discuss and advise on issues on which they had reached a consensus.

A party can now apply to the Court to be relieved of the obligation to disclose an expert report, or information relating to the report, but must make its application within 60 days of disclosure (rather than five days after, as applied under incumbent rule 160).

The amendment also enables a party to file a summary expert report, in which the expert provides a summary of the assumptions made and opinions held in the proceedings, without obligation for the expert to confer with previous experts [or to comply with the requirements set out in rule 160(3)].

Rule 160(10) clarifies that an expert report, including a summary expert report, is not subject to legal professional privilege and, if admissible, may be tendered at trial.

The Rules still provide that parties must obtain all expert reports they intend to use for the trial before the relevant time limit, being 60 days after disclosure. Rule 160(11) now provides that even if a party obtains an expert report before the relevant timeframe, including a summary expert report, the report must still be disclosed within five days of receipt, unless the Court orders otherwise.

It will be interesting to see whether the changes will impact matters that heavily rely on expert opinion by leading to earlier settlement. The amendment will undoubtedly encourage practitioners to understand and engage with expert opinions at an earlier stage in proceedings and challenge experts to discuss and justify their conclusions to their colleagues at an earlier stage.

We would like to acknowledge the contribution of Julie Kinnear and Lani Carter to this article.

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