Medical Law Talk - February 2018

Welcome

Welcome to the first edition of Medical Law Talk - a publication aimed at providing medical practitioners with regular legal updates related to the medical field.

In each edition, we will provide a summary of the latest Medical Negligence cases as well as other information relevant to doctors, nurses and other health care professionals.

Medical Case Update

Negligence: Misdiagnosed Melanoma, Coote v Kelly; Northam v Kelly [2017] NSWCA 192

On 3 September 2009, Malcolm Coote sought treatment from his local GP, Dr Steven Kelly, in relation to a lesion on the sole of his left foot. Dr Kelly diagnosed the lesion as a “plantar wart” and administered cryotherapy until March, 2011. In early March 2011 a biopsy of the lesion was carried out which returned a diagnosis of malignant melanoma. The melanoma was excised on 29 March 2011, however the melanoma had metastasised and Mr Coote subsequently died on 23 May 2012.

Prior to his death, on 25 October, 2011 Mr Coote commenced proceedings in the Supreme Court of New South Wales against Dr Kelly where he sought damages on the basis that Dr Kelly had been negligent. Mr Coote’s claim was that Dr Kelly was negligent in failing to diagnose the lesion as a melanoma, and submitted that an earlier diagnosis would have given him the possibility of a better outcome.

The Supreme Court Judge held that Dr Kelly had been negligent by failing to properly diagnose the melanoma. However, as the applicant was unable to prove when the metastasis had occurred, the negligence (being the failure to correctly diagnose the lesion) had not been shown to cause the harm identified. As no causative link between Dr Kelly’s initial diagnosis and the metastasis could be shown, the applicant was not successful in their claim.

Mr Coote’s widow, Ms Northam, then appealed the decision made in relation to causation and further submitted that that the lesion had a black dot, which Dr Kelly failed to identify. The evidence of four doctors who had treated Mr Coote was presented to the court. All practitioners were in consensus as to the presentation of the lesion, which contradicted the verbal evidence provided by Ms Northam. The medical experts relied upon by the court were in further consensus that a reliable conclusion as to the time the melanoma had metastasised could not be made.

The appeal was dismissed by the court, where it was held that there was no causative link between Dr Kelly’s actions and Mr Coote’s death. Further, on appeal it was also held Dr Kelly had not been negligent, overturning the original decision. Ms Northam was ordered to pay the Mr Kelly’s costs in relation to the appeal.

The importance of keeping detailed notes

Particularly helpful to Dr Kelly’s case was the evidence of one doctor (Dr Hiddins) who had noted a “marked change in the size and coloration of the lesion” between January and March in 2011. Dr Hiddins’ observation that the lesion had changed colour and size was the reason the biopsy was carried out. Dr Hiddins’ notes also indicated that prior to these observations, there were no signs of metastasis based on her examinations (including examinations of Mr Coote’s lymph nodes and for lumps).

Negligence: Self-harming patient, LC by his litigation guardian KS v Australian Capital Territory [2017] ACTSC324

At around 4.30 am on 12 September, 2007 a patient was taken to Canberra Hospital by police after an unsuccessful suicide attempt. At hospital he was taken to the Emergency Department where he was placed in a bed in one of the wards. At approximately 1.15 pm the patient absconded from the ward where he was chased by a security guard. The patient outran the security guard before jumping from a building within the Canberra Hospital Complex, resulting in fractures to both of his legs.

The patient commenced proceedings in the Supreme Court of the Australian Capital Territory (ACT) where he claimed that he sustained his injuries as a result of the negligence of the ACT (being responsible for the management of Canberra Hospital). The basis of the patient’s claim was that the hospital should have known he was suffering from a delusional psychosis and that he had a tendency towards self-harm. The patient further claimed that the hospital failed to put in place procedures to prevent him from harming himself by failing to properly monitor him, make enquiries or appoint a psychologist, prevent him from self-harming, and seek authority to involuntarily detain him.

At the time the patient was registered as a patient of the Canberra Hospital, he was subject to an order under ACT legislation dealing with the treatment and care of mental health patients, and allowing the hospital to make an application for an order for involuntary detention of the patient. That order ceased to have effect at 8.30 am on 12 September, 2017.

The question before the court was therefore whether the defendant, being ACT, had been negligent due to their failure to put in place procedures to prevent the patient from harming himself.

At court, great weight was given to the fact that the patient was not subject to a mental health assessment until 11.00 am, some 2.5 hours after the order had ceased. Medical advice provided to the court suggested that had a proper mental health assessment been conducted, then on the balance of probabilities, this assessment would have resulted in an order for involuntary detention. Had the patient been detained, the court then held that it was probable that the patient would not have suffered the injuries that he did.

The court found that the ACT owed the patient a duty of care which it then subsequently breached. The court was satisfied that the breach resulted in the injuries sustained by the patient. On this basis, the court awarded the patient damages in the sum of $130,440.10.

Assault and Battery: Taking urine and blood samples, Pere v Central Queensland Hospital and Health Service [2017] QDC 2

Mr Pere was employed as a Fire Safety and Security Officer at the Gladstone Hospital. On 2 August, 2012 Mr Pere was observed by his colleagues to be ‘acting in an unusual manner of work’ and was directed by a co-worker to attend the Emergency Department. At the Emergency Department, Mr Pere told the nurse he had drunk two glasses of wine during the day. The attending doctor noted that Mr Pere had “bloodshot eyes, slurred speech and ataxic gait” and formed the opinion that a blood test to screen for alcohol and a urine test to screen for illicit substances needed to be administered. The doctor’s notes indicated that he was concerned that if Mr Pere was not under the influence of alcohol or illicit drugs, then he could be suffering from a number of possible medical conditions, some of which would need urgent attention.

Mr Pere was then seen by a nurse to take a sample of his blood. The nurse’s notes stated that he gave consent and appeared calm at the time the blood was drawn. Mr Pere, however, gave a different account where he alleged that the nurse did not ask for his consent, but rather approached him with a needle syringe whilst he was in the process of talking to the doctor. In relation to the urine test, Mr Pere alleged that a female nurse was present with him in the toilet for the urine test. The female nurse in question denied this, and said she had never observed a male patient give a urine sample on any occasion. The results of Mr Pere’s tests indicated that he had a blood alcohol reading of 0.2 grams/litre.

In April, 2015 Mr Pere commenced proceedings in the Queensland District Court seeking damages against his former employer. Mr Pere made a number of allegations at court, including:

• That he did not consent to the collection of blood and urine samples, and further, that his blood alcohol reading negated his capacity to give such consent;

• That the hospital staff’s actions in taking the blood and urine samples (without consent) amounted to battery and assault;

• That the hospital staff were in a position of power which influenced his ability to give consent; and

• The incident caused him shame and humiliation, which resulted in psychiatric injuries due to the hospital staff’s negligence.

The court acknowledged there were discrepancies between the version of events presented by Mr Pere and the hospital staff. On this note, the court held that Mr Pere’s credibility was poor, whereas the doctor and nurse’s accounts were consistent, and therefore credible.

The court found that the blood and urine tests were taken in the usual way, with Mr Pere’s consent, and therefore the nurse’s actions did not amount to assault or battery. In relation to his capacity to give consent, the court held that he was not required to be fully sober in order to give consent to the procedures undertaken in the emergency department. Furthermore, the court accepted that Mr Pere was not undertaking the tests as if he were an employee who worked for the doctor, but rather as a patient of the doctor. Mr Pere’s claim in negligence was also unsuccessful as a reasonable person would not have foreseen that the requesting and taking of blood and urine samples would cause the patient psychiatric injury.

Family Law Advice

McKays Family Law are regularly contacted by medical professionals to provide family law advice to their patients.  As well as offering free monthly information sessions at our offices, we are also happy to provide you with family law information packs for you to pass on to your patients.  These packs provide valuable information including support services available to those going through a relationship breakdown, or those in a domestic violence situation.  To place an order for free family law information packs, please contact us on 4963 0880 or mackay@mckayslaw.com 

Feedback and Assistance

If there are any topics that you would like us to cover in our next newsletter, please let us know.  We are also happy to visit your workplace and provide you with complimentary information sessions regarding various legal topics.  Please contact our friendly team for more information.