Lead Article – May 2022

Repetition

It is both fascinating and infuriating that little seems to change in the medicolegal sphere. There have been some major advances over the last decade or two with PIPA and the CLA but in general terms, claims are claims are claims.

The same old injuries, the same old symptom complexes, the same old functional impairments all seem to return with little modification and identical stories.

Our system of compensation becomes ever-more expensive and the furnaces of all the professionals involved are fueled regularly.

So repetitive are these claims, it occurs to me that a relatively simple system of classification could be created and a “no fault” insurance system inducted.  There will be variations from the mean and some claimants may do better, whereas others may miss out. In general terms however, it could make the system far less clumsy, much more cost-effective and less draining on resources.

The Kiwis seem to cope!

Case Vignette – May 2022

Do X-rays Lie?

With traumatic lesions, there is an old saying that the situation can “never be better than the worst x-ray”. There is much truth in this axiom. It means that if you can see a displaced fracture, then a displaced fracture exists.

What might be hidden however is an additional fracture (or even multiple fractures with comminution) and even more displacement. It cannot be better than what you are witnessing, but it could possibly be worse. That is the reason we engage in more sophisticated scans or multiple views of an afflicted region.

At a degenerative level, x-ray or radiographic changes take place over an extended period. Spurs, disc space narrowing, end plate sclerosis and facet joint narrowing in the lumbar spine take many years, possibly decades, to develop. Some patients will categorically deny any form of symptoms despite quite remarkably severe changes on their films. Whilst the correlation between these degenerative features and recognised symptomatology is not necessarily a direct line, or watertight, a relationship still does exist.

I don’t that think I have ever seen a patient with a severely diseased spine who does not have some discomfort, some stiffness and some disability.

General Advice – May 2022

How to Succeed with a Negligence Claim

Don’t expect to read about any tricks. There are none.

Instead, careful scrutiny of all of the records and radiographs, separation of complications from under-performance, a careful analysis of the current state and the garnering of at least one objective expert report should form the mainstay of the process.

Contemporary literature reviews are useful although in reality, not many Orthopaedic Surgeons regularly review the modern literature. Trainees or those about to sit their Fellowship exam will be the most avid visitors to published literature. The interest is often maintained for a year or two, or maybe a decade. Thereafter, many Orthopaedic Surgeons “fly by the seat of their pants” and add only incrementally to their current literature knowledge. Many do attend Journal Clubs and so-called “Grand Rounds” but often, nothing more than the surface is scratched.

Experts producing a report often cite the literature. In those instances, it is important that the published literature does not postdate the sentinel event and that the publication is freely available to all and sundry. Review articles are also preferred to those that delve into minutiae or matters that are esoteric.

As a requesting Solicitor, I would advise you to seek copies of the papers that are being referred to and attempt to make your own judgement.

Lead Article – April 2022

No Wonder Plaintiffs Are Confused

I recently examined a patient with a sore back. He had a congenital (from birth) pars defect at L5 and a spondylolisthesis of L5 on the sacrum.

In simple language, this means that there is a gap between the joints behind L5 which would normally give rise to some stability as it articulates with the subjacent sacrum. As a result of this gap, L5 slips forward on the sacrum and the spinal cord (along with the exiting nerve roots) can be compromised. Patients who are symptomatic have not only back pain, but also sciatica or leg pain typically in the distribution of the L5 or the S1 nerve root.

He had been injured in a work accident. He is in his early forties. WorkCover arranged for one of my colleagues to examine him.

The resultant report that emanated suggested that the workplace accident had caused the spondylolisthesis and the pars defect but had not played any role in causing the sciatica.

In fact, it is likely that the converse is true.

The report was given to the plaintiff and understandably, he is confused. This will require retaining a solicitor, securing a further report (at some considerable cost), a delay in time and a heightening of his anguish. I am sympathetic.

Case Vignette – April 2022

How Much Is An Injury Really Worth?

I recall a youngish woman (33 years of age) who was bumped by a horse and fell gracefully onto soft lawn. The entire event was witnessed by many people.

No doubt, it was a little frightening. She also had an anxious disposition, was embarrassed and began crying inconsolably.

Everybody reasonably expected that that would be the end of the matter; but oh no, it was not! She sued the horse owner and over the ensuing three years, sought advice and treatment from almost every medical practitioner imaginable.

She was eventually awarded $630,000 by the trial Judge in her civil action undertaken here in Brisbane.

I suppose I can’t be certain that this was nothing more than a “try on” but I am genuinely suspicious.

General Advice – April 2022

Why Do Orthopaedic Surgeons Do It?

Orthopaedic Surgeons who proffer advice through medicolegal reports are usually motivated by at least two stimuli.

The first is a genuine interest in matters of both medical and legal consequence. They have sometimes been litigants themselves, have sometimes been the subject of severe accidents and have a real, abiding interest in the milieu. Almost without exception, these reporters are excellent.

The second stimulus in in pursuit of filthy lucre. Some colleagues see this as a lucrative route to financial success. Fees are usually set unilaterally, there is no guarantee of quality and “after sales service” is often non-existent. Unfortunately, some Orthopaedic Surgeons resist the provision of medicolegal reports until they are in their last year or two of practice. Not all of them possess the necessary skills, some are well and truly out of date and others treat it with mirth.

Requesting solicitors are advised to choose from the first group.

Lead Article – March 2022

Mandatory Reporting

I recently attended a dinner hosted by, and for, members of both the legal and medical professions in Queensland. There were three speakers dealing with the topic of mandatory reporting and all came from different backgrounds.

The lawyer was excellent. She was concise, erudite, focussed, objective and educational. Her performance was faultless. It occurred to me how fortunate I was to be a member of the medical defence organisation which employs her.

There are two central issues in mandatory reporting. The first relates to the mandate. If you (as a medical practitioner) have a “reasonable” belief that a fellow practitioner is under-performing, engaging in unprofessional conduct or is guilty of professional misconduct, you must report. It is as simple as that. I suppose the question could be how do you define “reasonable”? This is obviously a grey area but to the best of my knowledge, and to the knowledge of others who should know, nobody has ever been castigated for a frivolous or vexatious notification under the mandatory reporting system. If you can justify what you believe (in other words, it is not based upon jealousies or turf wars), I think you are safe.

The second issue relates to detecting the under-performance, the unprofessional conduct or the professional misconduct. This is theoretically more difficult, although it shouldn’t be.
There were a few “wise heads” in the audience who declared their superior knowledge in matters of medical competence and indicated that they found the process difficult. I have personal knowledge of the first “wise head” and have genuine reason to suspect his ability to filter the good from the bad. The second “wise head” was a specialist who was aware of members of his specialty who were less good than they should be. Nonetheless, he felt fearful of reporting because of the possibility of being called out for anti-competitive behaviour.

I did not find either “wise head” convincing.  The real essence is this. If you reasonably believe that somebody is under-performing, behaving unprofessionally or engaging in misconduct, you simply must report it. It is not for you to be judge or jury. The central accrediting authority will take the matter in hand, investigate and deal with your report fairly, justly and transparently (we hope). The matter is outside your hands.

I remember some years ago that two operating theatre nurses approached me, complaining about one of my colleagues. They were concerned about his performance. Both of these theatre nurses expressed their thoughts in written form and I simply passed it on to the Medical Board. I heard nothing more of the matter (which is probably not a good thing) but there were certainly no repercussions for me. Their consciences were requited and I also felt that I had done the right thing.

My advice is to forget the bush lawyers and if you have reason to believe that somebody is under-performing, you should report the matter. That is the law. After all, our principal focus is the patient along with the unsuspecting public. Just do it.

Case Vignette – March 2022

I Sometimes Change My Mind

Prior to seeing a patient for a personal injury claim, I read the available documentation. This includes hospital and medical notes, recordings from the general practitioner and importantly, specialty notes and reports. Understandably, I form an opinion about the matter before I actually see the plaintiff. I almost always do it. I can’t seem to help myself.

Frequently, after taking a full history, performing a thorough physical examination and reviewing the ancillary investigations, my mind is changed, sometimes through 180°.

There will be many reasons for this seismic shift and they include the failure of some experts to have had access to all of the relevant data, misinterpretation of data, the failure to glean a proper history and the basing of opinions on falsehoods.

Far from finding this circumstance distressing, I find it very refreshing. Whilst I am tempted to pre-judge, I genuinely endeavour to keep an open mind. This is one form of evidence that I might be successful.

General Advice – March 2022

Please Pay Your Bills

Medical negligence cases typically involve reams and reams (or megabytes and megabytes) of material to decipher, digest and analyse carefully. It takes many hours.

Some solicitors, typically those acting for plaintiffs, are keen to secure some form of verbal advice before a written report is solicited. I can understand the tactics.

Nonetheless, the expert is still required to expend all of those hours, distil the facts carefully and formulate a reliable opinion, even if it is expressed verbally.

The requesting solicitor therefore should not be surprised that there will be a bill for this service.

I recently had to chase a solicitor from an interstate firm for a bill that had remained unpaid for nine months. His initial excuse was that our telephone conversation lasted for only 11 minutes (completely discounting the hours that I had spent in preparation) and his ultimate excuse was that I must have known that my opinion was not going to support his client and therefore, why should I bill at all.

Medicolegal experts are there to assess the entire truth (if available) and give an honest, objective, transparent and most of all, defendable opinion. Whether it is helpful or not to your client, as the requesting solicitor, you should still pay the bill.

Lead Article – February 2022

What’s the Difference Between the Heart and the Brain?

From the medical perspective, there are very significant differences between these two important organs. I won’t bore you with them.

From the legal perspective, the terms are used a little more loosely. The heart is often looked upon in sympathetic terms. Conversely, the brain is looked upon as being the intellectual motor.

From a medicolegal perspective, I routinely endeavour to engage the brain to report without emotion. The goal is transparency, objectivity and correctness.

There are times though when my heart would have me report differently. The issue usually boils down to causation. Some patients have been exceedingly seriously injured and the course of their lives irreversibly altered for the worse. Unfortunately, the causative agent is not as they believe and, in all likelihood, is of a non-compensable nature.

Whilst it is tempting to adopt a more lenient view, such an approach would be both incorrect and potentially immoral.

It does occur to me though that there are times when the judicial overlord may decide differently. I can only hope.