Inquest into the death of Irene Magriplis

Published today were the findings of the Inquest into the death of Irene Magriplis [2017] NTLC 008, a decision of Coroners Court at Darwin.

Irene Magriplis died of sepsis caused by bile leaking into her abdomen after elective surgery at the Darwin Private Hospital (a hospital that did not have an ICU). The surgery was to remove a growth adjacent to her bile duct. At the time, Her surgeon was of the opinion that this elective surgery was necessary, but later conceded that it was not.

The findings are of interest for addressing the high risk nature of the surgery such that it should only be carried out after multidisciplinary team review and then in an adequately resourced hospital: [21] – [23].

The Coroner referred the findings to the Medical Board of Australia: [210].

The Coroner also recommended (at [211] – [213]) that:

  • the hospital not permit high risk surgery to be undertaken where it does not have the resources to mitigate those risks.
  • the hospital implement an escalation system to provide a proper rapid team response when the rapid response criteria are met.
  • should the hospital continue to operate a High Dependency Unit that it be properly and appropriately resourced and in conformity with Standard 9 of the National Standards on Safety and Quality in Health Care and the Guidelines of the College of Intensive Care Medicine of Australia and New Zealand.

 

 

 

 

Peer opinion & irrationality

Gould v South Western Sydney Local Health District [2017] NSWDC 67 (per Levy DCJ SC) saw the court called upon to consider a claim which arose following emergency medical and surgical treatment of severe thumb injury in an 8 year old child. Infection and gangrene developed, resulting in surgical amputation of the tip of the thumb. The plaintiff alleged a breach of duty of care arising from delayed surgical irrigation, exploration and repair of the wound and a breach of duty arising from the choice of a particular antibiotic therapy and postoperative care.

The decision is of particular interest for its consideration of three aspects of section 5O of the Civil Liability Act 2002 (NSW):

  • The meaning of the term ‘peer‘, as used in section 5O(1) when referring to peer professional opinion (at [617]):
  • The interpretation of the term ‘a person practising a profession’ in that same sub-section, as extending to a body corporate (at [614];
  • The basis for application of section 5O(2) of the Act, which provides that peer professional opinion cannot be relied on for the purposes of the section if the court considers that the opinion is irrational (at [619] ff).

Interlocutory orders: Amendment to statement of claim & timetable

McGarry v Southern NSW Local Health District [2017] NSWSC 305 was an interlocutory matter concerning two notices of motion, one in relation to a further amendment of a statement of claim and one in relation to interruption of a timetable for the preparation of expert evidence, including by way of conclave. The latter sought to have the witness statement of the defendant made available before the conclave.

Leave was granted in relation to the amendment but not in relation to the timetable.

Advocates immunity revisited

Following its earlier decision in Attwells v Jackson Lalic [2016] HCA 13, the High Court of Australia today published its reasons for judgment in Kendirjian v. Lepore & Anor [2017] HCA 13.

The matter arose in circumstances where a settlement offer was made and rejected on the first day of a trial. It was alleged that the advice in relation to rejection of that offer was negligent. The trial proceeded to the point of a judicial determination and so the Court was required to consider whether it could be said that the advice affected the conduct of the case in court by bearing upon court’s determination of the case.

Edelman J (with Kiefel CJ, Bell, Gageler, Keane JJ concurring) allowed the appeal, as required by the reasoning of the majority in Attwellls. At [34] he explained:

With respect, the negligence action by Mr Kendirjian against the respondents does not give rise to the possibility of any challenge to the findings of the District Court concerning Mr Kendirjian’s credibility or otherwise. From Mr Kendirjian’s perspective, he relies on the decision of the District Court in order to prove his alleged loss. From the perspective of the second respondent, issues concerning the reasonableness of advice given will be assessed at the time the advice was given, not at the time of the District Court judgment. The assessment of reasonableness will not involve any consideration of whether the decision of the District Court, affirmed by the Court of Appeal, was right or wrong whether in relation to credibility or otherwise. It was not suggested that any questions of reasonable foreseeability of loss could conceivably lead to a challenge to the reasoning or decision in the District Court. Indeed, nothing in the second respondent’s pleaded defence raises any suggestion of a challenge to the reasoning or decision in the District Court.

Nettle J (with Gordon J concurring) agreed with Edelman J that, in light of the majority’s reasoning in Attwells v Jackson Lalic the appeal must be allowed. However he did not agree that Mr Kendirjian’s negligence action against the respondents did not give rise to a possibility of a challenge to the findings of the District Court.

NDIS transport costs appeal: Full funding, Financial sustainability

McGarrigle v National Disability Insurance Agency [2017] FCA 308 appears to be only the second NDIS matter to find its way to the the Federal Court of Australia, as an appeal on a point of law from an earlier decision of the Administrative Appeals Tribunal (AATA). The appeal in effect dealt with whether the NDIS, in considering reasonable and necessary supports, should fund all of Mr Liam McGarrigle’s (LM) transport costs or only a portion of them.

In the opening of the reasons for judgment Mortimer J explained that LM is a participant in the National Disability Insurance Scheme (NDIS), and receives funding to cover his transport expenses for his travel to work and his travel to a group program. Under his NDIS plan, the Agency provides LM with $11,850 for transport, which represents approximately 75 per cent of the annual cost of $15,850 required to pay for taxis and transport.

LM sought to have the Tribunal’s decision overturned on the basis that on its proper construction, the Act requires “reasonable and necessary supports”, once identified, to be fully funded by the Agency.

The Court found that the AATA erred in law in the approach it took to s 34(1) of the Act, and therefore the decision should be set aside and the matter remitted to the Tribunal for determination according to law.

The reasons for judgment included reference to the following:

  • The NDIS scheme is not means tested – whether as to the person concerned, their family or community. (at [24]).
  • Once a decision is made that the support, as identified and described, is reasonable and necessary, then subject to the other requirements in s 33(5) and s 34, the scheme requires and contemplates that support “will” be funded. … that can only mean wholly or fully funded (at [94]).
  • There is no doubt that consideration of the financial sustainability of the NDIS is given an express place in the operation of the legislative scheme. … The question raised by these grounds of appeal is how “the need to ensure the financial sustainability of the NDIS” is to be taken into account (at [107] – [108]). However the question did not arise as the AATA did not reason to the effect that in order to pursue the objective of ensuring the financial sustainability of the NDIS, it would only approve funding of 75% of LM’s transport costs (at [115]).

 

 

Funds management recovery

Serrao v Cornelius [2017] NSWCA 61 is another decision touching on the recovery of funds management costs.

The Court of Appeal noted that the amount proposed for approval in respect of funds management was about $24,500. The evidence suggested that the actual cost of funds management would be about $138,000.

Despite that discrepancy consent orders were made, apparently on pragmatic grounds, with the court commenting at [10]:

There is no dispute as to the methodology or the calculations, which on their face are orthodox and reasonable. Equally, it is clear that any attempt to litigate this component of the damages would rapidly generate legal costs of the same order of magnitude or more than the amount itself. In those circumstances, the settlement of the costs of fund management in the amount agreed between the parties is in the best interests of Mr Serrao.

UK proposal: Rapid Resolution and Redress Scheme

The Department of Health (UK) has published a consultation paper on a proposed Rapid Resolution and Redress Scheme (RRR) – a voluntary administrative compensation scheme for families affected by severe avoidable birth injury. The paper is open for consultation for 12 weeks.

The RRR scheme proposes a system of consistent, robust, and independent investigations for all instances where there may be severe avoidable birth injury; and for eligible babies and their families, the option to join an alternative system of compensation that offers support and regular payments without the need to bring a claim through the courts. This would be a voluntary scheme which would not affect an individual’s right to litigate. The scheme would apply to harm associated with treatment under NHS maternity services in England only.

(As noted by the Harvard Bill of Health blog).

 

Wrongful birth claim: Antenatal ultrasound & microcephaly

With relatively few reported decisions regarding wrongful birth, McGuinn v Lewisham and Greenwich NHS Trust [2017] EWHC 88 (QB) is of interest for its consideration of reasonable clinical practice as to sufficient evidence that the fetus was at risk of suffering from microcephaly, so as to require the claimant’s referral for further investigation and assessment at a tertiary level centre.

The decision did not address causation or assessment of damages.

Child with divorced parents: Housing costs

The appeal in Manna v Central Manchester University Hospitals NHS Foundation Trust [2017] EWCA Civ 12 arose following an award of damages for a child who as a result of failings in the management of his birth suffered bilateral tetraparetic cerebral palsy and severe cognitive, social and communication impairments.

The relationship between the parents broke down following the child’s birth. They then remained living in the same house for about 2 years, sharing the care of the child, before they began to live apart. The award by the trial judge reflected the costs associated with care for the child in his primary home (with the mother) and in a secondary home (with the  father).

The appeal revisited that award and also considered whether the award in relation to future costs should be limited by reference to the life expectancy of the father, rather than of the child: [27]. That had not been argued at trial and so was not revisited on appeal: [31].

The Court of Appeal upheld the award in relation to the “second” property, saying at [26]:

In the circumstances the award in respect of a second home in this case should be regarded as generous and I entirely agree with the judge that it should also be regarded as intensely fact-dependent. Of course, generosity towards a claimant disadvantaged as is Lamarieo may not be misplaced, but I agree with the judge that her decision in this regard should not be regarded as establishing a precedent. ….. The Claimant was entitled to spend time with his natural father after his parents’ divorce, and the father should ordinarily be entitled to have his son stay with him in his own home. I interpose that if the proper language is not that of entitlement, these are at the very least reasonable expectations to which the law should strive to give effect. There was here, continued Mr Sweeting, a long history of shared care, including in the father’s own home, both before but significantly after the divorce. The father had in the past made minor adaptations to his property which it was agreed was not adequate going forward into the new era of professional residential care. The fact that the shared care arrangement had broken down did not mean, the judge found, that it would not be resumed in the future. The judge considered that it was in Lamarieo’s best interests for his relationship with his natural father to be restored, by which she meant I am sure that it was in his best interests that the arrangement of contact and care being partially afforded at the father’s home should be restored. …. In all the circumstances I am persuaded that we would not be justified in setting aside the award under this head. It was within the generous ambit of decision-making entrusted to the judge.

 

 

IVF conception with incorrect sperm: Loss of genetic affinity

The blog Singapore Law Watch  reports today’s decision of the Singapore Court of Appeal, ACB v Thomson Medical Pte Limited & Ors [2017] SGCA 20 in which the Court at [3] summarised the dispute in this way:

The Appellant and her husband sought to conceive a child through invitro fertilisation (“IVF”). The Appellant underwent IVF treatment and delivered a daughter, whom we shall refer to as “Baby P”. After the birth of Baby P, it was discovered that a terrible mistake had been made: the Appellant’s ovum had been fertilised using sperm from an unknown third party instead of sperm from the Appellant’s husband. The Appellant sued the Respondents in the tort of negligence and for breach for contract and sought damages for, among other things, the expenses she would incur in raising Baby P (“upkeep costs”). The Respondents conceded liability but argued that the Appellant should not be allowed to recover upkeep costs. They argued that the child is a blessing, and that there was something distasteful, if not morally offensive, in treating the birth of a normal, healthy child as a matter for compensation.

At [210] the Court of Appeal dismissed the the appeal in so far as the issue of upkeep costs is concerned. However, the Court recognised a right to claim, as general damages, a sum in recompense of the injury which she has suffered to her interest in “genetic affinity”. The quantum of this award should be assessed in accordance with  principles set out at [145]–[152], which focused on a percentage of the actual costs of raising the child (30%).

The Court held that while a claim for punitive damages may in principle be mounted in respect of claims in negligence, such an award was not available in this case.