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Sally Gleeson discussing high risk medical procedures on 2GB

Sally Gleeson providing Q & A on the 2GB Chris Smith Afternoon Show discussing "high risk procedures" on 11 June 2019

Tuesday, 11 June 2019



CS         Well over the past week or so leading neurosurgeon Dr Charlie Teo has been making headlines because of criticisms he has been copping from his colleagues about the prices he charges for surgery. Now as you know Dr Teo has a reputation for taking on patients who other doctors have given up on. Not all the time by the way and he performs highly specialised and often difficult high risk procedures but this debate raised some questions about the legalities around high risk treatment. What happens if things don’t go to plan in these situations, who is responsible?  What happens if you raise the issue with the patient and then the patient afterwards says hang on a second, I didn’t quite know that that would be the case. Whose right whose wrong when you take on high risk procedures as a patient, so we will talk about this and also take your calls on medical legalities today in our legal matters segment. As always I have a Westfield voucher to give away to a caller. That is a $100 Westfield voucher to give away to a caller. That is a $100 voucher that must go between now and 2pm and Turner Freeman Lawyers provide a range of specialised legal services including compensation and negligence law, asbestos litigation, superannuation and disability claims, employment law, wills and estates and property law as well. Sally Gleeson is a partner in the Turner Freeman Sydney office and specialises in medical negligence litigation and she joins me in the studio right now. Thank you very much for coming.

SG         Thanks Chris.

CS         With all this discussion around Dr Teo going on at the moment and I did speak with Charlie Teo last week and he is coming out against this criticism with all guns a blazing, but people have started looking closely at high risk procedures. Now if things don’t go to plan, the result of the surgery is an adverse unpredictable or unexpected, is it solely the responsibility of the surgeon? Now I know that is a very general comment to make and circumstances differ from patient to patient, but if you are entering into a high risk procedure how much responsibility should you take as a patient?

SG         Well every relationship is a two way street, we know that and that includes the doctor patient relationship and what you said about Professor Charlie Teo earlier regardless of your views of what has been happening in the media storm that has been generated, what is indisputable is that Dr Teo ventures where no other surgeon dares to venture and he makes it his business to save lives by performing high risk brain surgery in very difficult locations, particularly on children and where other surgeons perhaps advise against the surgery. So what I wanted to talk about today and discuss with any callers is what rights does a patient have when high risk surgery or medium risk surgery, surgery that carries with it more risk than usual, causes them harm. So what if for example the surgery treats the primary problem but causes a further problem?

CS         A problem that exacerbates another condition that you may not have known about or….

SG         Creates a new condition or what if the surgery causes catastrophic complications and none of the original problems are rectified. So what does the law say about the various risks of the treatment and whether a patient has rights in a medical negligence setting. By law very clearly, a doctor cannot be found negligent for harm they caused if it is the materialisation of an inherent risk so an inherent risk, what is that? An inherent risk is something that occurred that could not have been avoided through the exercise of reasonable skill and care. So unavoidable, it’s a situation that would have arisen even in the best possible hands. So if that occurs during surgery, the materialisation of a risk that could not have been avoided through the exercise of reasonable skill and care, then the doctor cannot be found to be negligent. That’s the theoretical test at law.

CS         Right ok.

SG         So every procedure carries with it a certain degree of risk big or small. Some procedures are more high risk than others so in Dr Teo’s case, we heard about Dr Teo earlier in the news this week operating on a little 12 year old girl, the type of tumour she had and its location made the procedure even more precarious, her parents were aware, the young girl was aware. She and her family knew that the procedure was a high risk procedure and it was really about giving this girl a chance to improve her quality of life. Now what Dr Teo said very clearly was that she and her family were aware of the risk and that’s what it really comes down to.

CS         So surgeons and medical practitioners obviously need to point out high risk procedures and what could go wrong to the patient at every point.

SG         The doctor or surgeon has to advise the patient about the material risks of the surgery. So even if a risk of surgery, a recognised risk hits home, it doesn’t absolve the doctor from negligence so long as the doctor has advised and warned the patient of those risks. So two things have to happen, the doctor has to warn the patient of the risk and then the risk has to materialise and then thirdly and more crucially, the patient has to prove to the court, the onus is on the patient that had they known of the risk that hit home they would not have had the surgery so it’s a test that connects in itself, it’s not a clear cut test.

CS         So if someone passes away in surgery does the family have a right to take on the doctor for those reasons?

SG         If someone passes away during surgery, if the surgery was negligent and they passed away because of the surgery that patients’ rights are extinguished upon death. Their family members, close family members is defined by law, have a case for any psychiatric injury they have suffered by virtue of losing a loved one. It’s got to be an abnormal grief reaction over and above the normal grief reaction, it has got to be a recognised psychiatric condition.

CS         Not normal grief?

SG         Not normal grief however you define that and then they are also entitled, if they are a dependent on that family member, to claim any economic loss that they would have otherwise derived from that family member or any care benefits that they have lost.

CS         Intricate area. 131873. If you have had high risk surgery that might approach that area of an inherent risk and maybe you have done something about it and or maybe you knew that these were the possible options or outcomes that could have occurred as a result of surgery.  Would love to hear what your story was and how you handled that. 131873. Let’s go to our open line board and take some calls. Rod go right ahead Sally is listening.

C1          Good afternoon how are you going?

SG         Hi Rod.

C1         Yeah Sally I’ve got a 5 year old now but he was 2 when it happened. My son, I took him to a medical centre cause he fell off a bike and his arm was sore, they took x-rays said that there was nothing wrong and go home and massage it and this and that. The next day we went to soccer for my son and there was a nurse involved with the team and she had one look at it and said to take him straight to the hospital it’s broken. When we went to the hospital the hospital didn’t even take x-rays, they looked at the x-rays the medical centre took and said he needs emergency surgery straight away.

CS         So someone misread the x-rays in the first instance.

C1          So he told us to take my son home and pull his arm out and massage the area to get the bruising out because it said it was deeply bruised. 

SG         So what ended up being the injury to your son Rod?

C1       Yeah it was to my son and the little part of his elbow had snapped off and they had to give him emergency surgery which he had to have two rods inserted and have the little piece infused back on but I was just wondering, we put it through to the medical board and they said that the doctor had nothing to answer to.

SG      Ok so the findings of the medical board do not have an impact on whether there is a medical negligence case for your son. How long was the delay between the misdiagnosis and when it was properly diagnosed?

C1       We took him to the medical centre on the Friday and on the next day the Saturday afternoon we took him to the hospital because the nurse said it was broken. 

SG      Ok that’s a hard one because we are talking about a day or two of delay. Even if they were negligent at the GP centre, even if they didn’t diagnose, by law you can’t sue unless you prove that the delay caused further injury over and above what he would have suffered. You there Rod?  So unfortunately I wish that the law allowed just for a pure breach of duty of care any compensation for someone, but we have to prove that there is a link between the delay and your son’s additional injury. He broke his arm or he had an injury to his elbow in any event, we need to prove that the delay caused your son an additional injury that he would have otherwise avoided. So that’s a really hard one. Unless the manipulation, the moving around caused an additional injury that couldn’t have been avoided, so really it’s a matter for doctor opinion as to whether that caused an additional injury.  

C1       Ah ok, I just wanted to see what grounds we had. I don’t really want to sue him but I just want the doctor to be answerable to his mistake.

SG      How’s your son’s elbow now three years later?

C1       Yeah he seems to be fine. They said it could have a problem where it could grow inwards but it hasn’t started to grow inwards and he seems to be using it fine, he’s just got a horrific scar at the top of his forearm there in the join of the elbow.

SG      Ok so just be aware that there is limitation periods as to when proceedings can commence so you just have to be aware.

CS       Listen Rod, just for my curiosity, what sort of approach did you take to the medical board, did you do that solely or did you have legal advice?

C1       No my partner did it and she put a letter into the medical board with all the diagnosis that the doctor gave that it was badly sprained and not broken and they just came back and said that he hasn’t got anything to answer to.

CS       Alright Rod, thank you very much. Stay there Rod, I’m going to give you the $100 Westfield voucher.

C1       Thank you very much Chris.

CS       Your question has raised some really interesting issues associated with medical negligence. $100 Westfield voucher to you. It’s interesting what you had to say there. Two things, one that if you are turned down by the medical board that wasn’t found to be negligent you can still take legal action, that’s the first interesting point I’ve discovered with what you’ve said to Rod, and the second thing is, you’ve got to have an additional injury to the original injury to prove the negligence.

SG      Absolutely so the law of medical negligence is three fold. Number one someone made a mistake, number two there is a link between the mistake and what someone has suffered.

CS       So damage?

SG      Damage and number three damage that is permanent so there’s got to be a three tier test to be established.

CS       And the medical board is separate to any kind of legal action in a court of law.

SG      So what Rod’s partner would have done is complain to the Health Care Complaints Commission and they would have taken the matter to the medical board and the medical board would have made its own findings. Now what they take to be their test for their own purposes differs greatly to the test at law. So one doesn’t equate to the other.

CS       Got a couple of minutes additionally with Sally Gleeson of Turner Freeman and by the way if you want to contact Turner Freeman directly 134363 or the website Brian go for your life.

C2       G’day. I went to hospital with a bad knee, they said it was gout anyway I got it drained twice before, now when I went to that hospital they normally deaden it, they put those needles it and kill it and come back 10 minutes later or 15 minutes later anyway this doctor didn’t even do that, he just put the big syringe in and I was screaming, I was screaming, the pain and yeah so yeah I was screaming, it was terrible.

SG      Sorry to hear that Brian. Did you tell the doctor about the pain?

C2       Well I had to tell him to get away from me.

SG      Oh good.

CS       Did you ask him about some kind of pain relief?

C2       Well I thought he would have known that.

CS       Yes

SG      Did they end up doing the procedure Brian and relieving you in that knee?

C2       Well he couldn’t get it all out because I was screaming and the pain, you know that.

SG      Absolutely.

CS       It’s painful enough Gout.

C2       When I, when normally you get it done they deaden it then they put a bigger syringe and they are real big syringes and suck it all out.

CS       Brian I’ve got to go, just on that Sally, is that a small item that you wouldn’t ever take to Court for negligence?

SG      Absolutely not.

CS       But it’s worth a complaint.

SG      Absolutely worth a complaint. I always encourage those that are unsatisfied with any services to make a complaint. You’ve got to make these hospitals or doctors or practitioners aware, the legal relief is a separate issue.

CS       Exactly. Sally Gleeson thank you very much.

SG      Thank you Chris.

CS       A partner in Turner Freeman Sydney office and we will have another segment for legal matters this time next Tuesday.