Case Vignette – February 2022

The Features Some Plaintiffs Suffer

I saw a fellow recently who had been working in western Queensland as a helicopter musterer for about 11 years. He had obviously started early because he was only 30 years of age when the accident occurred. He had been executing hair-raising manoeuvres through a heavily wooded forest in search of the final beast or two. He thought he would sleep better at night if the herd was complete.

The inevitable happened and the helicopter did crash. Fortunately, there was no fire although had there been, the smoke may have brought his helpers to his side more rapidly.

Instead, he sustained a severe thoracic spinal injury and was rendered immediately and completely paraplegic. He was able to use his upper limbs to drag himself from the wreckage and shelter beneath a large ironbark tree. The accident occurred on dusk and the night brought heavy rains and freezing cold, since it was July.

He realised the severity of his injury and genuinely thought that he was going to die in that remote location. He nearly did. Two full days elapsed before the rescue team found him.

By then, his lower half was covered in excrement, he had almost been eaten alive by ants and he was delirious with hunger and thirst.

I met him for his medicolegal examination four years later. His face was suntanned, his upper limbs were strong and equally brown and his wife of seven years accompanied him. Although he was confined to his wheelchair, it did seem that most other facets of his life were back on track.

So harrowing was his experience, I encouraged him to write a book. I genuinely hope he does.

General Advice – February 2022

The Plight of the WorkCover Patient

I rarely perform IME’s for WorkCover, but regularly see plaintiffs being sent along for a second opinion after having received an unpleasant WorkCover settlement offer.

Whilst the principal problem is the perceived inadequacy of the offer, there is a list of accompanying complaints which has become disturbingly familiar.

These include difficulties contacting their counsellor by ‘phone, ‘phone messages left unattended for days, a lack of sympathy for their circumstance (especially when finances are considered), being sent to Orthopaedic Surgeons who are excessively gruff and rude and a whole process that tends to grind them down.

I understand that there are many perspectives and some injured workers can be extremely demanding. In an effort to generate a level of compassion for them all, I recognise that had it not been for the accident (which was invariably not their fault), none of this would have happened to them. They feel anger, frustration and a sense of helplessness.

I don’t have any suggestions as to how the system could be improved, but a bit of compassion from the orthopaedic assessor could go a long way towards smoothing the turbulent waters.

Lead Article – December 2021

Beware the Recidivist Claimant

Very few of us will ever lodge a civil claim for personal injury in our lifetime.

A small proportion of us will have one claim and possibly two, although that would be unusual.

Unsurprisingly though, there is a very tiny subset of our population that lodges claims quite frequently. This latter subgroup appears to be extremely unlucky! Some of them have been involved in six or seven rear-end collisions, many have twisted an ankle or two on repeated occasions and most of them seem very skilled at relaying the types of symptoms that purportedly add credence to their claim.

Dr Google obviously has some part in it. Patients seem to have read the details concerning related symptomatology, have a fairly good grasp on the natural history, and are even aware of the types of investigations that are more believable than those that are not.

Bias is an undesirable characteristic in an independent medical expert. However, it is unavoidable. When I see these plaintiffs with a myriad of antecedent civil claims for personal injury, I am immediately suspicious.

I know, I should feel ashamed. Oh well, I’ll mull it over.

Case Vignette – December 2021

It’s All a Matter of Scale

I recently saw a young man who sustained an injury in the region of his cervical spine whilst playing touch football at an Army base in 2015. It appears as though it was a genuine injury giving rise to a discal protrusion and he was subjected to an operative discectomy.

As is sometimes the case, some of the disc material was not removed per-operatively and a further disc protrusion resulted eight or nine months later. It was confirmed with a second MRI scan. As a result, a second operation was performed.

Now, this chap was unlucky. A further recurrence occurred after a trivial incident at a restaurant and yet a third operation was required.

He was then involved in a relatively minor rear end collision. I say relatively minor because he did not lose consciousness, the rear of his seat was not broken, the damage to the vehicle was less than $1,000 and he was able to drive it from the scene of the accident for a further seven hours to a north Queensland location.

His cervical spinal symptoms however were apparently increased and six or seven months later, he was subjected to a fourth operation in the form of a cervical fusion.

His legal advisor suggested that he pursue not only the Australian Defence Force Army, but also the insurer covering the driver of the offending vehicle. It is always difficult to apportion blame accurately. In general terms however, it appeared to me that he was always destined to require that fourth operation and the rear end collision was of little or no significance.

What do you think?

General Advice – December 2021

Fair Enough

I understand that lawyers often take sides in matters. In fact, firms declare themselves as being either pro-claimant or pro-defendant. They wear it as a badge of honour.

I sometimes try to put myself in one or other camp and imagine how I would behave. In reality, if I was acting for plaintiffs, it would be my duty and desire to serve them as best I could. One simple service may be to procure a report from a plaintiff-sympathetic expert. Defendants would probably do the converse.

The problem from an orthopaedic perspective is that we do have outlying experts who are either exceedingly pro-plaintiff or equally pro-defendant. Securing a report from one of these outliers simply muddies the water. It confuses the accuracy of the middle ground, prolongs the matter and adds to the cost. Whilst that may assist the bottom line for the legal firm, the no-win/no-fee groups may be dissuaded early in the programme. That in itself may disadvantage the plaintiff’s position.

I recognise that this is a complex matter and the only salvation I see is that we all act morally and keep a fair end point firmly in the frame.

Lead Article – November 2021

Personality Does Matter

Over the last two months, I have seen two plaintiffs alleging medical negligence against a so-called “first surgeon”.

Both patients had undergone total hip replacements by different surgeons. Let’s call them surgeon A1 and surgeon A2. They had both performed the primary hip replacement in each case.

Both patients complained of ongoing discomfort following the original surgeries and amongst other things, there was the allegation that leg length discrepancies had been created. So great were the alleged leg length discrepancies that both patients sought second opinions and both patients underwent revision operations by surgeons B1 and B2.

It transpired that neither patient had a true leg length discrepancy. Instead, it was an apparent leg length discrepancy and this related to pelvic obliquity, osteoarthritis in the contralateral hip and contralateral knee, and altered gait patterns. Whilst the osteoarthritic degeneration in the contralateral limb could not be addressed easily, the gait patterns could have been quite easily resolved.

Even more unfortunate is that both the operations performed by surgeons B1 and B2 were faulty. Considerable damage was created during the courses of the revision procedures for both patients and from my perspective, both patients ended up being far worse than they might have been had they been left well alone.

This is the rub. Surgeon B1 and surgeon B2 both had marvellous bedside manners. Both had generated trust and affection with their patients and in essence, the patients thought that they “could do no wrong”.

Through misdirection and misunderstanding, both plaintiffs attempted to sue surgeons A1 and A2. Suffice to say, after tens of thousands of dollars, many reports and some clear-headed analysis, both suits failed.

It struck me at the time that maybe the patients should have been suing surgeons B1 andB2, but personalities got in the way.

Case Vignette – November 2021

Beware of Some Chiropodists

There have been recent reports in “The Australian” newspaper about a patient who had undergone some form of “body modification” procedure by an unqualified practitioner. As I understand, a silastic compound had been injected into a hand or a finger, had resulted in local sepsis and had not received appropriate therapy. The patient did go back to the unqualified practitioner for advice but rather than being referred to a proper medical practitioner, some form of hokey-pokey medicine was entertained for some weeks. Ultimately, that patient demised as a result of overwhelming sepsis.

The reason I refer to this recent report is that I recall a case wherein a chiropodist had treated an ingrowing great toenail. I am not certain about the appropriateness of the ministrations, but local sepsis ensued. The chiropodist attempted to treat the complication inadequately with saline baths and the like. Ultimately, that patient also became extremely ill with septic shock. The local sepsis gave rise to a gangrenous condition in the great toe and it required amputation.

This patient that I can recall did not die, but the outcome following what should have been quite straightforward management of this benign problem was vastly worse than it should have been.

General Advice – November 2021

Some Things Never Change

I have had an undying interest in medicolegal reporting for four decades. There have been some changes over that period and in particular, the Court processes do appear to have been streamlined. Conversely, and probably unsurprisingly, some things just never change.

There are some patients who disingenuously attempt to milk the system and gain as much traction as they can with their insurance claims.

Others are at the other end of the spectrum and it is necessary to drag even the most major complaints out of them, despite them having been very severely injured.

I had hoped that there would be a contraction from both ends of this spectrum as the years went by.  It seems not.  Almost every day, I am astonished by the performance of some plaintiffs.

I would suggest that when you are sending your plaintiff along for a medicolegal examination, you advise them to simply tell the truth.

Lead Article – October 2021

Who’s in Charge of Medicolegal Report Quality Control?

I really don’t know!

Medical graduates in Australia are subject to registration requirements imposed by the Medical Board of Australia and its administrative arm, the Australian Health Practitioner Regulation Agency, or AHPRA.  Practitioners have to register annually, it is not automatic, and there are hurdles to jump and hoops to pass through before registration is renewed.  Continuing Professional Development (CPD) is part of the regimen.

Similarly, those medical practitioners who undertake specialty programmes are also vetted carefully and are often subjected to annual examinations.  A final Fellowship examination is probably the toughest exam that they will ever do, and this also helps to ensure the quality of the service that they are providing.

Once a Member or a Fellow of a College, ongoing CPD requirements must be met.  Random audits are undertaken and my understanding is that an entire College complement would be audited every five years.

Subspecialty Associations also require Members to undergo CPD and this further ensures that practitioners are keeping up to date.

In the medicolegal arena however, entry is easy (and free), there is no guarantee that the medicolegal reporter is any good at the outset, training programmes do exist but attendance is not compulsory and finally, examinations are rarely set.

The American Board of Independent Medical Examiners (ABIME) does have a structured course programme with examination for membership, but enrolment is again entirely voluntary.  Many medicolegal reporters in Australia continue to practise without ever visiting a single training session.

Whilst the ultimate quality of reports is obvious to those of us who are in the trade, unsuspecting solicitors may not recognise a poor product when it is proffered.  This can lead to unnecessary, lengthy and costly litigation with a disappointing outcome.

Maybe it’s time we had a College in Australia that exercises some control over the quality of medicolegal reporting in our country.

Case Vignette – October 2021

Sexual Boundary Violations

I know, this is a very unusual topic for an Orthopaedic Surgeon to be exploring.

The Notifications Committees of the Medical Board of Australia not infrequently deal with complaints of inappropriate behaviour on the part of medical practitioners with patients.  It appears that female patients are the most vulnerable and male practitioners are the most likely to offend.  The severity and the frequency of the boundary violations vary, but all are totally unacceptable.

The Boards typically refer these cases to the Civil Administrative Tribunals in their respective States.  Respondents are dealt with according to the level of the breach and actions can include reprimands, suspensions or even cancellation of registrations, temporarily or indefinitely.

Not only do the types of boundary violation cover a relatively broad spectrum, there is an added element of the potential for recidivism.  There are some practitioners who have been dealt with on several occasions for the same violations and have been the subjects of suspensions and conditions.  One common condition is to never examine a female patient (if that is the appropriate sex) in the absence of a chaperone.

It may come as a surprise to you (as it did to me) that there are still some practitioners who, despite repeated warnings, fail to adhere to the conditions mandated by the Tribunal and set in place to protect our society.

I suppose every profession has them.