Expert witness conclaves: Probability and statements

Although not a medical claim and despite the reasons being quite brief, Bogunovic v Buildcorp Contracting NSW Pty Ltd [2017] NSWSC 805 has two interesting aspects.

Firstly, the plaintiff argued that the questions for the expert orthopaedic surgeons (in circumstances where the cause of the plaintiff’s disabilities was in dispute)  should include the sentence: “Your opinions in respect of the above are to be given on the balance of probabilities, that is, something is more probable than not. Scientific and medical certainty is not required.”

At [7]-[8] the court said:

I do not agree. Findings in a civil case are made on the balance of probabilities by a court. A medical expert expresses an opinion, approaching matters, including causation, from a medical perspective. There is a difference, as is well known and is referred to in authorities, between medical causation and causation as the law understands it, whether under s 5D of the Civil Liability Act 2002 (NSW) or at common law.

The point is that experts are not required to give their opinions based on the balance of probabilities, nor are they to be concerned with scientific and medical certainty. They give their expert opinion based on their medical knowledge and experience and in the light of the information which has been provided to them by the Plaintiff and their findings on any examination. The Court has regard to those opinions and will have to determine itself whether the Plaintiff proves on the balance of probabilities injuries, disabilities and incapacities arising from those injuries and disabilities. I do not consider it is appropriate that the experts should be directed to approach the matter in the way the Court is obliged to do.

Secondly, the plaintiff sought to provide the experts with assumptions which were largely taken from the evidentiary statement of the plaintiff. It is not clear from the judgment whether the plaintiff was seeking to obtain the views of the defendant’s experts on different assumptions than had been put to them. In any event the Court said at [9]-[11]:

…each of these experts has examined the Plaintiff and taken a history from him. That history may or may not accord with the material which is contained in the evidentiary statement. The fact that there might be differences between them is frequently a cause for cross-examination at any hearing.

It does not seem appropriate to me that the experts should now be required to consider a history that the Plaintiff intends to put forward to the Court, where that history may differ from the history that has been given to those doctors. The doctors are now not in a position where they can ask questions of the Plaintiff to clarify matters or to make them consistent with what they may have been told when they examined him.

In my opinion, the experts should provide their joint report based on their own examination of the Plaintiff and their own assessments of the material that they have seen to date.

Consent forms and professional misconduct

In Medical Board of Australia v Adams [2017] VCAT 796, perhaps unsurprisingly, the medical practitioner conceded that his submission of some 37 consent forms (purportedly signed by the patients but in fact not signed by them) constituted professional misconduct (at [23]).

The Tribunal commented:

  1. Firstly, it is a clear breach of the criminal law.  Dr Adams was dealt with in the Magistrates Court on charges of falsifying a document, a charge which carries a maximum level of imprisonment of 10 years.  He was placed on a diversion.  This means that there was no finding by the Magistrates Court of guilt.  Even so, he has admitted that fraudulent conduct.  Any member of the community who forges another person’s signature on a document commits a very serious offence.  When that person is in a doctor-patient relationship, it is our view that the offence is magnified in seriousness.
  2. Secondly, in forging the signature of the patient, he has effectively taken away the patients ability to exercise an informed consent to the operation.  This is no small matter.  Indeed it may be said that the recent history of the medical profession is one of encouraging openness between doctor and patient, and encouraging patients to take responsibility for their own medical decision making.
  3. Dr Adams response when we put that concern to him was to indicate that he was confident that he had discussed the matters on the form with all of his patients, including the potential complications of any operation.
  4. He provided us with his notes in respect of patient consultations with eight of those patients. His note on each occasion was cursory; – the words “operation discussed” were most frequently used. There seems to us to have been very little in his notes to rely on had there been a subsequent dispute as to what he had told his patients about the forthcoming operation.
  5. We accept that his recollection was that he would discuss the advantages and risks of the proposed operation with each patient. But even assuming that he had done so, it is nevertheless an extremely paternalistic approach to patient care for the doctor to have taken it upon himself to complete these detailed documents on his patients’ behalf, and apparently without their knowledge.
  6. It has meant that patients have not had the opportunity to discuss their treatment options and the benefits and risks of the operation in a considered manner with their family or other persons before opting to go ahead with treatment.
  7. 53. Further, in forging the patients’ signatures Dr Adams has placed other professionals including his colleagues at great risk.  For instance, the forged consent form includes consent to anaesthesia.  An anaesthetist may well have relied upon such a consent and would have been entitled to do so, not knowing that the consent was forged.


Notes of conference between medical expert and solicitor: Supplementary report?

Pierides v Monash Health [2017] VSC 326 followed an interlocutory application by a defendant for an unredacted copy of a file note of a conference between a solicitor and a medical expert.

The decision includes reference to particular aspects of Victorian court rules which are not uniform across Australia. However issues of legal professional privilege and waiver of privilege are also discussed.

At [65] the court noted that it is widely accepted that disclosure of an expert report will involve an implied waiver of privilege with respect to the brief of instructions and documents provided to the expert. In relation to file notes, the court appears to have accepted that the communications that are recorded in file notes must be examined to determine whether there is anything in those communications which influenced or underpinned the expert’s report and hence warranted disclosure (at [71]). See also [106].

More novel was an argument, accepted by the court, that the notes of a conference may constitute a supplementary report in certain circumstances, requiring service in that form or as a supplementary report.

  1. However, it is clear that either on 30 September 2016 or at another unknown time, a conference was held by Jamie’s current solicitors with Dr Harbord in relation to his earlier report of 13 March 2014.  The notes of this conference are in the same handwriting as the notes of the 30 September 2016 conference, although they start on a separate page and are headed by a the initials LW/CH, and a phone number, presumably Dr Harbord’s phone number.  The pages after the first page are numbered 2 through to 6, suggesting that this is a separate conference from the conference relating to the medical examination, even if it occurred on the same date.
  1. There is no supplementary report dealing with the matters addressed during that conference and no typed up notes of conference provided to Dr Harbord for him to adopt.
  1. It is clear in my view that these six pages of notes do constitute ‘a supplementary report’ pursuant to r 44.03(3) and, given that no formal supplementary report appears to have been sought in relation to this conference and signed notes of conference have not been provided, these notes should be signed by Mr Harbord or converted into a report and served on Monash Health.



New edition: Australian Medical Liability

A third edition of our book, Australian Medical Liability, is due for release in mid July, in paperback and ebook formats.

This new edition obviously updates the case law and provides a separate chapter dealing with intentional acts with intent to cause harm. There are new chapters dealing with confidentiality and litigation, expert evidence, the role of the coroner in the context of medical treatment and some aspects of professional conduct.

Pre-orders on the LexisNexis website (before 30 June) provide a 10% discount.


Australian Medical Liability, 3rd Edition

Bill Madden, Janine McIlwraith &  Benjamin Madden

LexisNexis 2017.

AustMedicalLiability_3rd_cover image

Psychiatrist liability for patient violence: US developments

Writing for the Harvard Bill of Health blog, Alex Stein today reports:

In a recent decision, Volk v. DeMeerleer, 386 P.3d 254 (Wash. 2016), the Washington Supreme Court relaxed the “control” prerequisite for psychiatrists’ duty to protect third parties against violent patients.

The Court made this decision in a case involving a psychiatric patient who murdered his girlfriend and her nine-year old son and then committed suicide (after attempting to kill the girlfriend’s older son as well). For nine years leading up to that tragedy, the patient received outpatient care from the defendant psychiatrist, during which he expressed suicidal and homicidal ideations (without naming the potential victims).

The Court held that the psychiatrist had a “special relationship” with the victims because he was able to control the patient. Correspondingly, the psychiatrist had a duty to exercise “reasonable care to act consistent with the standards of the mental health profession, in order to protect the foreseeable victims of his or her patient.” The Court reasoned in this connection that some ability to control the patient’s conduct is sufficient for the “special relationship” and the consequent duty of care to exist. For that reason, psychiatrists should assume responsibility not only for an inpatient’s actions, but also in connection with an outpatient’s violence against third parties.

The Court explained that “Even bearing in mind the lesser amount of control available to mental health professionals in the outpatient setting, sufficient control nevertheless exists to recognize the duty. There are a number of preventative measures mental health professionals can undertake in the outpatient setting, even without actual custodial control …. in order to mitigate or prevent their patients’ foreseeable violent-actions. Given this reasoning, we find that absolute control is unnecessary, and the actions available to mental health professionals, even in the outpatient setting, weigh in favor of imposing a duty.”

The Court also mentioned that a psychiatrist’s obligation to protect third parties against patients’ violence will normally set aside her confidentiality obligation to the patient.


Unlawful killing charge regarding medical treatment: Acquital

Regina v Graeme Stephen Reeves, 16 June 2017. (Not available on Caselaw)

Dr Graeme Reeves was charged that on 14 May 1996, at Sydney in the State of New South Wales, he did unlawfully kill Kerry McAllister. She under his care as her treating obstetrician at the Hills Private Hospital from the time she gave birth on the 8 May 1996 and up to the time she was transferred to the Westmead Hospital on the 13 May 1996.

Dr Reeves entered a plea of not guilty, but did not give evidence in the trial. Last Friday he was acquitted, following a judge alone trial before Judge Zahra of the District Court of New South Wales. The reasons for judgment run to 174 pages. This note provides only a brief summary with extracts.

The reasons for judgment begin with a discussion of the elements of the indictment – in effect, involuntary manslaughter by criminal negligence. His Honour noted:

Generally, the Crown case is that the accused was grossly negligent in that, during the time that Mrs McAllister was under his care, the accused failed to appropriately physically examine her, that he failed to reconsider his diagnosis of viral illness, that he failed to order exclusionary tests for bacterial infection, including blood tests and vaginal swabs, and that he failed to order the commencement of precautionary antibiotic treatment.

Following a detailed review of the evidence and the arguments, the determination of the matter starts on page 133. The relevant findings included the following:

Duty and negligence

I find beyond reasonable doubt that the accused owed a duty of care to the deceased as her treating obstetrician. For the reasons I will set out below, I find beyond reasonable doubt that by his omissions in the care of Mrs McAllister the accused was negligent and in breach of his duty of care to her. Counsel for the accused concedes that the omissions by the accused in the treatment of Mrs McAllister amount to negligence. The issue to be determined is whether the negligence of the accused amounted to gross criminal negligence and merited criminal punishment


I am of the view that had the accused acted earlier, at least by 12 May, Mrs McAllister would have survived.

Gross criminal negligence

I have considered the admissions made by the accused. His assertions amount to an admission of significant failure to identify bacterial illness, to turn his mind to the possibility of bacterial infection in a postpartum febrile patient and to carry out precautionary and preventative procedures, to engage in exclusionary tests and to commence broad spectrum antibiotics. The assertions by the accused amount to an admission that these failures caused the death of Mrs McAllister. Whilst the admissions are relevant to my fact finding, whether the assertions amount to an admission of gross criminal negligence, within the meaning of that term that I must apply, is a matter for me to decide. Further it is a matter for me to decide, based on the evidence of the expert witnesses, whether the omissions of the accused significantly or substantially caused or accelerated the death of Mrs McAllister.

Finally the court concluded that:

Ultimately the omissions of the accused and his error of diagnosis must be considered in the clinical setting in which the accused considered the presentation of Mrs McAllister and in which he made his decisions. There are myriad factors which I have referred to and assessed in the course of these reasons for judgment. These factors inform the court why the accused made errors of judgment. The presentation of Mrs McAllister informs the court of the elusiveness of the symptoms of bacterial sepsis and the imprecision in the identification of that condition by those who attended upon Mrs McAllister subsequent to her giving birth. The management of the care of Mrs McAllister informs the court of the medical practices in identification and treatment of bacterial infection at the time, in 1996, The practices in place in 1996 informs the court why there was a failure by those medical practitioners who attended upon Mrs McAllister prior to her first cardiac arrest to recognise the severity of Mrs McAllister’s illness. The existence of viral illness within the family, the atypical presentation of Mrs McAllister and the elusiveness and rarity of group A Streptococcus infection operated to mislead the accused when he determined the symptoms were attributable to viral infection.

Protocols are now in place to avoid the tragic and catastrophic consequences of the failure to identify the possibility of bacterial infection in a post-partum patient with febrile illness.  Viewing the conduct of the accused in the context of current medical procedures would lead to a different outcome. I must however make assessments of the degree to which the accused’s conduct departed from the standard of care of a reasonably competent obstetrician in 1996. Having considered the accused’s negligent omissions in the treatment of Mrs McAllister in the clinical setting in which Mrs McAllister presented in 1996 I am unable to conclude beyond reasonable doubt that the omissions amounted to gross criminal negligence meriting criminal punishment.

As I have noted, the conduct upon which a finding is made that the conduct amounted to gross criminal negligence and merited criminal punishment is that conduct which coexisted with an underlying bacterial infection. I have found that Mrs McAllister was suffering from a bacterial infection at least by the 12 May 1996.   Whilst my finding is that I could not be satisfied beyond reasonable doubt that the bacterial infection commenced prior to the 12 May, I am of the view that even if the bacterial infection commenced at the time of the first episode of elevated temperature, having carefully considered the accused’s omissions in treatment, I could not be satisfied beyond reasonable doubt that the negligence in failing to investigate and consider the differential diagnosis of bacterial infection at that time and in the days following amounted to gross negligence meriting criminal punishment.


NDIS/NIIS: Medical NIIS deferred

The Council of Australian Governments (COAG) issued a meeting communique on 9 June 2017. In relation to the proposed medical treatment stream of the NIIS the communique said:

Leaders agreed with Treasurers advice not to proceed with a medical treatment stream of the National Injury Insurance Scheme (NIIS) at this time. Leaders asked Treasurers to review the cost implications of this decision in the context of the Productivity Commission Review of NDIS Costs. Leaders also asked Treasurers, in consultation with the Disability Reform Council, for advice on a general accident stream of the NIIS for the first COAG of 2018.

In relation to the ongoing NDIS the communique said:

Leaders reiterated their commitment to the National Disability Insurance Scheme (NDIS) and delivering quality support for people living with disability and ensuring quality and safeguards. Leaders expressed their ongoing commitment to working collaboratively to ensure a smooth transition to full scheme, including strengthening their efforts to address national workforce issues.

Leaders agreed that the Disability Reform Council would consider issues of the treatment of people with disability in residential settings and report back to COAG at its next meeting.


New antenatal care guidelines: Consultation draft

Australian Doctor newspaper has reported today that routine hepatitis C and HbA1c tests, and non-invasive testing for chromosomal abnormalities have been included in new draft NHMRC guidelines on antenatal care. An article by Michael Woodhead referring to the consultation process notes:

An update to the Australian Clinical Practice Guidelines for Antenatal Care overturns previous advice against routine testing for hepatitis C, saying it is now supported because of the availability of direct-acting antivirals that can offer a rapid post-partum cure.

And when testing women at risk of diabetes, GPs providing shared antenatal care are advised that HbA1c tests may be suitable in the first trimester as an alternative to fasting plasma glucose tests.

Updated and expanded advice is provided on cell-free DNA testing for fetal chromosomal abnormalities, given that the tests are now widely available and used by many women in the first trimester.


ALRC report: Elder abuse

The Australian Law Reform Commission today released its report 131 entitled Elder Abuse – A National Legal Response. A discussion of the role of health professionals begins at [11.6]. A discussion of the NDIS begins at [11.33].

The Report includes 43 recommendations designed to safeguard older people from abuse and support their choices and wishes through:

  • improved responses to elder abuse in residential aged care;
  • enhanced employment screening of care workers;
  • greater scrutiny regarding the use of restrictive practices in aged care;
  • building trust and confidence in enduring documents as important advanced planning tools;
  • protecting older people when ‘assets for care’ arrangements go wrong;
  • banks and financial institutions protecting vulnerable customers from abuse;
  • better succession planning across the self-managed superannuation sector;
  • adult safeguarding regimes protecting and supporting at-risk adults.

NDIS costs: Productivity Commission costs position paper, including NIIS comment

Released today is the Productivity Commission’s NDIS Costs position paper. It sets out preliminary conclusions and seeks feedback by 12 July 2017.

Key points include:

  • NDIS costs are broadly on track with the NDIA’s long-term modelling.
  • There are some emerging cost pressures, such as higher numbers of children entering the scheme.
  • The rollout speed has resulted in the NDIA focusing too much on meeting participant intake estimates and not enough on planning processes, supporting infrastructure and market development.
  • Some disability supports are not being provided because of unclear boundaries about the responsibilities of the different levels of government.
  • A significant challenge is growing the disability care workforce required to deliver the scheme — it is estimated that 1 in 5 new jobs created in Australia over the next few years will need to be in the disability care sector. Present policy settings are unlikely to see enough providers and workers as the scheme rolls out. Some emerging shortages need to be mitigated by better price monitoring and regulation; better tailored responses to thin markets; formal and informal carers allowed to provide more paid care; and a targeted approach to skilled migration.

Page 208  – 210 of the report speaks of the interface with the proposed National Injury Insurance Scheme. The Commission is seeking feedback on a mechanism to ensure that the States and Territories bear the cost of participants who were intended to be covered by the National Injury Insurance Scheme. That part of the paper includes:

The NIIS, as proposed by the Commission, was to operate as a federation of individual state-based no-fault insurance schemes.

Implementation of the NIIS is overseen by the Australian Treasury and has been undertaken across four streams — motor vehicle accidents, workplace accidents, medical treatment injuries and general accidents (occurring in the home or community).

…Progress on the other two streams, medical accidents and general accidents, has been slower. A discussion paper was released in 2015 for the medical treatment injuries stream (Australian Treasury 2016c); however, negotiations for the general accidents stream have not commenced. The DSS (sub, 146, p. 25) noted that over the short to medium term, the medical and general streams may not be implemented, with a number of implementation challenges identified for the medical stream. As there is no agreement in place by the states and territories to commit to the funding for, or establishment of, the medical and general accident streams, anyone who acquires a catastrophic injury from a medical or general accident will receive supports through the NDIS. This will have a direct impact on NDIS costs.

…The number of people entering the NDIS, who would otherwise be covered by the medical or general accident streams of the NIIS in any one year is expected to be relatively small across both streams the Commission in 2011 estimated there to be around 400 people. But over time, as new people enter each year, there is a cumulative effect. To illustrate, modelling undertaken by the NDIA suggests that the cost to the NDIS of the medical and general schemes not operating would amount to about $23 million in 2018-19, but would increase to about $226 million in 2025-26 and to around $1.3 billion in 2040-41.

…Because the states and territories have greater control over implementing risk reducing  programs (and therefore, indirectly, the costs of the NIIS), they should bear the costs of the NIIS if it remains only partially rolled out for an extended period.