Patients’ Experiences With Communication-and-Resolution Programs After Medical Injury

Jennifer Moore, Marie Bismark and Michelle Mello have published a paper in JAMA entitled Patients’ Experiences With Communication-and-Resolution Programs After Medical Injury.

The introduction explains that the reported interview study of 40 US hospital patients, family members, and hospital staff found that patients have a strong need to be heard after medical injury that is often unmet.

Although 60% reported positive experiences with communication-and-resolution programs overall and continued to receive care at the hospital, they reported that hospitals rarely communicated information about efforts to prevent recurrences.

In their conclusion the authors make an interesting comment about the value of small gestures, saying:

The following 5 practices are supported by our interviews: (1) asking patients what form of communication (telephone, letter, or face to face) they prefer after the initial disclosure conversation, (2) giving injured patients a private room for the remainder of their stay, (3) using the term reconciliation instead of resolution, (4) asking patients a few months after the reconciliation process concludes whether they wish to provide feedback, and (5) reaching out to patients on the anniversary of the event to update them on what the hospital is doing to improve safety and assure them that they have not been forgotten.

Has the Right to Breach Patient Confidentiality Created A Common Law Duty to Warn Genetic Relatives?

Published on Friday in the QUT Law Review is an article by Wendy Nixson, Has the Right to Breach Patient Confidentiality Created A Common Law Duty to Warn Genetic Relatives?

The abstract explains:

This paper discusses the conflict between a medical practitioner’s duty of care and duty to maintain patient confidentiality, and their statutory right to inform a relative about a possible genetic condition. The statutory right arguably creates a Rogers v Whitaker type duty to provide the same information a patient might require in order to make informed choices about testing and treatment. In the event that reasonable clinical judgment is not applied to disclosure, the genetic relative ought to be offered the opportunity to seek redress through the common law if they suffer harm as a result.

District Court NSW: New practice note and standard orders for hearings

To come into effect on 16 October 2017 for matters in the general list of the District Court of NSW (Sydney, Gosford and Newcastle) is a new Practice Note DC (Civil) No 1 and a new Standard Orders for Hearings document. Both were published in the NSW Government Gazette No 114 (6 October 2017) on page 5827.

Points of interest, not all new, include:

  • Clause 2.1 – Before commencing proceedings or filing a defence, legal practitioners
    must give their clients notice in writing about the requirements of this Practice Note and of the Court’s insistence on compliance with its orders. That notice must state that the Court may dismiss actions or cross claims or strike out defences if orders are not complied with and that the Court may make costs orders against parties who fail to comply with its orders.
  • Clause 3.1 – The plaintiff must serve proposed consent orders for the preparation of
    the case on the defendant with the statement of claim. The orders must be drafted specifically for each case. They must include all steps necessary to ensure that the case will be ready to be referred to mediation and/or other form of alternative dispute resolution and listed for trial at the status conference.
  • Clause 3.2 – If the defendant does not agree with the proposed orders, or wants to
    add additional steps, it must serve amended consent orders on the plaintiff’s solicitor at least 7 days before the pre-trial conference.
  • Clause 4.2 – Cases should not be mentioned by consent unless they are settled or
    ready for a hearing date.
  • Clause 5.3 – No case may be entered into the Commercial, Intentional Torts or
    Professional Negligence lists before the pre-trial conference.
  • Clause 5.4 – An application may be made at the pre-trial conference for a case to be
    placed in the Commercial, Intentional Torts or Professional Negligence lists. Any application must be supported by an affidavit setting out the reasons for entering a case in that list.
  • Clause 5.7 – The Court will give directions for the service of expert reports under
    rule 31.19 at the pre-trial conference. The parties must be able to tell the Court the precise nature of any expert evidence to be relied on and the names of all experts so that appropriate directions can be made.

In the standard orders for hearing, conclaves and concurrent evidence are referred to including under paragraph 9 a requirement that the experts, before giving their oral evidence, should confer with the intent of reducing the issues between them. Thereafter a joint report should be prepared stating areas of agreement and continued disagreement. Where areas of continued disagreement remain, reasons must be stated by each expert (or group of experts holding a common opinion) for such continued disagreement.


Failed contraception claim

Stobart v Al-Hakeem [2017] WADC 127 was a claim asserting that a medical practitioner failed to properly insert an Implanon contraceptive device, in the sense that the defendant medical practitioner failed to properly ascertain that the claimant was in the first five days of her menstrual cycle at the time of insertion. The claimant later became pregnant but by that time believed (at [213]) that she could not lawfully terminate the pregnancy as it was too far advanced. The defendant had not asserted contributory negligence in that regard, in any event (see [224]).

The claim was ultimately unsuccessful, with some adverse comment about the reliability of the evidence of the claimant (see [308]).

In the notional assessment of damages the trial judge applied a contingency of 10% given that the claimant may have later chosen to have another child (at [328]).

A ‘gratuitous care’ claim does not appear to have been made.




IVF breach of contract wrongful birth claim: UK

ARB v IVF Hammersmith Ltd [2017] EWHC 2438 (QB) was brought by ARB (the father) as a breach of contract claim against the IVF clinic, in circumstances where he asserted that the clinic brought about a pregnancy for his former partner (the mother) acting on a consent to thaw embryos form, which he had not signed. The IVF clinic in turn brought a claim for indemnity against the mother.

The court held at [209] that the father ARB did not sign the consent to thaw form; rather his signature was forged by the mother.

Discussion of whether a warranty / strict liability existed included reference at [254] to Thake v Maurice [1986] 1 QB 644, where a surgeon carried out a vasectomy having stated that it was irreversible. Then at [260] – [262] the court concluded that the clinic owed an express obligation (which was strict) not to thaw and replace an embryo if he did not give his written consent.

The court was therefore required to address the father’s claim for damages, which was for past and future financial losses being the costs of raising the child. That required consideration of the application in a claim for breach of contract of the prior English authority regarding claims in negligence. At [317] – [318]:

The crux of the matter remains whether the legal policy enunciated by the House of Lords in Rees, and undoubtedly applicable to contractual claims founded on reasonable care obligations in the light of the principle of relevant equivalence or congruence which I have identified, should – for reasons of principle, logic and policy – apply equally to contractual claims founded on strict obligations in circumstances where the parties have not sought to quantify or liquidate the damages payable in the event of breach. This last aspect is crucial because the current focus is on the secondary obligation to pay damages arising under the common law.

In my judgment, the same legal policy applies to thwart ARB’s claim. The measure of damages is the same; the test for remoteness does not turn on any distinction pertaining to the nature of the underlying obligation; and, most particularly, there is no material difference for the purposes of this legal policy between contractual duties of these two types…

The trial judge commented at [342] that although he has lost this case, the judgment “must be seen as a complete personal and moral vindication for ARB. The same, of course, cannot be said for R”.




Australian Consumer Law: Appellate decision

Lets Go Adventures Pty Ltd v Barrett [2017] NSWCA 243 provides an appellate consideration of an injury claim which included a claim under section 60 ACL: the guarantee that services will be rendered with due care and skill.

The judgment opens with some obiter comments by Basten & Gleeson JJA which are of general interest in respect of section 60, section 61, services, the Fair Trading Act and the Good Samaritan provisions. Adamson J said that the matters raised by their Honours were not the subject of argument in this Court and did not require determination for the purposes of the appeal I would prefer not to express a view about them.

At [2] – [8]:

The plaintiff pleaded his claims primarily by reference to ss 60 and 61 of the Australian Consumer Law, wrongly identified as those sections in the Competition and Consumer Act 2010 (Cth). That pleading required that the plaintiff be a “consumer” as defined in s 3 of the Australian Consumer Law, and not, as pleaded, by reference to the definition in s 51ACA of the Competition and Consumer Act, dealing with industry codes. As limited attention was given to whether or not the plaintiff was a “consumer” acquiring services, pursuant to s 3(3) of the Australian Consumer Law, it would have been appropriate to refer to the presumption in s 3(10).

The primary basis of claim turned on s 60 of the Australian Consumer Law which provides as follows:

60   Guarantee as to due care and skill

If a person supplies, in trade or commerce, services to a consumer, there is a guarantee that the services will be rendered with due care and skill.

Section 61 involves additional issues and relevantly provides:

61   Guarantees as to fitness for a particular purpose etc.

(1)   If:

(a)   a person (the supplier) supplies, in trade or commerce, services to a consumer; and

(b)   the consumer, expressly or by implication, makes known to the supplier any particular purpose for which the services are being acquired by the consumer;

there is a guarantee that the services, and any product resulting from the services, will be reasonably fit for that purpose.

(3)   This section does not apply if the circumstances show that the consumer did not rely on, or that it was unreasonable for the consumer to rely on, the skill or judgment of the supplier.

These provisions require careful attention to the “services” which were provided. The statement of claim identified them as “scuba diving” and stated that the services included “the provision of adequate and safe equipment and supervision during the provision of the services.” The failure to identify the services with precision caused difficulties in identifying what were relevant breaches of the s 60 guarantee and in demonstrating causation.

The defendant relied upon ss 5G and 5H of the Civil Liability Act 2002 (NSW) (obvious risk), s 5I (inherent risk), s 5L (dangerous recreational activity), s 5M (risk warning) and s 5N (waiver). In dealing with the relationship between the Australian Consumer Law and the Civil Liability Act, the Court was invited (an invitation which was accepted) to apply the principles identified by Meagher JA in Motorcycling Events Group Australia Pty Ltd v Kelly. [1] That was not entirely helpful. That case turned in part on the operation of s 74(2A) of the Trade Practices Act 1974 (Cth), as then in force, which was not expressed in the terms of a guarantee but in the terms of an implied warranty incorporated into the contract between the supplier and the consumer. That section has been replaced by s 275 of the Australian Consumer Law. Further, the application of State law also depended on the operation of s 68B of the Trade Practices Act, which has been replaced by s 139A of the Competition and Consumer Act. Ultimately, this case did not turn on any contractual exclusion of liability. Because s 74(2A) dealt with breaches of an implied warranty, rather than failure to comply with a guarantee, to the extent that it saved the operation of the Civil Liability Act, it was necessary to have regard to the specific terms of the relevant provisions of the Civil Liability Act with respect to a course of action based on a statutory guarantee, rather than a contractual warranty.

The plaintiff’s pleading assumed, no doubt correctly, that the standard set by the guarantee of “due care and skill” could properly be equated with the common law duty to take reasonable care, if the scope of the services was adequately identified. (Negligence was relied upon as an alternative cause of action.) However, a different analysis was required with respect to the guarantee of fitness for a particular purpose, language which was not addressed at the trial. [2] With respect to damages, attention should also be paid to s 267 of the Australian Consumer Law.

In addition, it may be appropriate in some cases to proceed under the Fair Trading Act 1987 (NSW), Pt 3 of which picks up and applies as New South Wales law the Australian Consumer Law. [3] Under s 4(6) of the Fair Trading Act, the Civil Liability Act is “paramount legislation” and in the case of inconsistency prevails over that Act, but not the Australian Consumer Law (NSW). Accordingly, the relationship of the Australian Consumer Law (NSW) with the Civil Liability Act depends on the effect of s 275 of the Australian Consumer Law, operating as State law.

There was also some confusion in the Court below as to the operation of the so-called “good samaritan” provisions in Pt 8 of the Civil Liability Act. Section 57 provides immunity from civil liability for one who “comes to the assistance of a person who is apparently injured or at risk of being injured.” [4] The reference to “good samaritan” appeared in a somewhat inarticulate paragraph in the statement of claim alleging a particular of breach of duty in so far as the defendant advised Mr Moore to dive down to alert the plaintiff of his, Mr Moore’s, difficulties, thus placing him at risk of injury “for which events the plaintiff would be bound to act as a good Samaritan and/or otherwise come to his aid”. The trial judge noted submissions that the plaintiff “may have been a good Samaritan in getting [Mr] Moore out of the water and on board the vessel following the dive” but that “the plaintiff ceased to be a good Samaritan thereafter”. These submissions should have been dismissed as incoherent. Nobody had sued the plaintiff; it is a defendant who obtains immunity from liability for acting as a “good samaritan”. So far as the plaintiff was concerned, the provisions in Pt 8 of the Civil Liability Act were simply irrelevant.


Medical testing of excised tissue in the context of litigation

James v Seltsam Pty Limited & Anor [2017] VSC 506 is an interesting interlocutory decision, for it focus on an application by defendant for an order requiring submission of plaintiff’s explanted lung for testing. The purpose of the testing was to shed light on whether the plaintiff suffered asbestosis or some other condition.

At [71] the court concluded that the the explanted lung is ‘property’ for the purposes of r 37.01. The court did not need to determine who owned that property; an order could be made directed at the laboratory holding the tissue.

There was no evidence of prejudice to the plaintiff in the lung being destroyed, such as the loss of an opportunity for further testing: [76].

At [82] the court noted:

I have already expressed my opinion that the testing to be undertaken on the lung has the potential – subject to interpretation of the results by medical experts – to determine a central question in this case which could, indeed, dispose of the case in its entirety.  As such, there seems little doubt that an order requiring the production and testing of the lung will facilitate the just outcome of the case.

And at [92]:

I consider, in the circumstances, that even though this is a test that has not been routinely used in the diagnosis of asbestosis or in litigation of asbestos related disease, the testing and the analysis goes to a critical and relevant issue in the case. I do not consider it to be a fishing expedition.  The testing has been recommended by a respiratory physician and on balance may be of forensically probative value in determining the critical issue of diagnosis.


NDIS: AI plans delayed?

ABC News has reported today on apparent delays in the implementation of the NDIS AI project ‘Nadia’,  being built on the cognitive technology developed by the IBM Watson team.

“The NDIA board and executive was told earlier this year the second stage of Nadia’s rollout would begin mid-year and involve volunteer participants being part of her training phase.

But Nadia’s 12-month “traineeship” never started and multiple sources close to the project have told the ABC they fear the census and Centrelink ‘robo-debt’ debacles took their toll on government-wide appetite for risk.”