Australia: Damages awarded for unacceptable delay in diagnosis and treatment of medical condition

Last Updated: 2 February 2017
Article by Vidal Hockless

This paper is co-authored by Daniel Coster, Lawyer

MEDICAL NEGLIGENCE – CAUSATION – DELAY IN TREATMENT

In East Metropolitan Health Service v Martin [2017] WASCA 7 the WA Court of Appeal was required to consider whether limitations in the availability of services in the public hospital system was a justification for delayed diagnosis and treatment and in doing so, reiterated the standard of care to which all patients should be entitled.

Background

On 20 November 2012, the Respondent attended the Armadale Hospital ED, where he was diagnosed with septic arthritis of the L5/S1 facet joint (lower spine).

He was admitted for treatment and, on 23 November, was taken to theatre for the insertion of a catheter line via his arm. Attempts were made to insert the catheter (unsuccessfully) in each arm, and a subsequent attempt caused such pain that the attempts were abandoned.

On 25 November, the Respondent reported pain from the failed catheter attempt and advised he did not want to undergo it again. On 26 November he was convinced to allow another attempt, which was successful.

The Respondent continued to report pain in the right arm from the initial attempted catheterization. On 1 December he reported difficulty with fine motor skills, and on 2 and 3 December he complained of numbness in his right hand and fingers, with tingling.

The Respondent was discharged on 6 December, as his other complaints were largely under control. Between 7 and 23 December he attended the clinic at Fremantle Hospital on four occasions, and was seen at home by a nurse each day. He reported the pain to the nurse.

On 19 December, the Respondent attended Fremantle Hospital for the results of an EMG he obtained as a private patient. The EMG demonstrated a median nerve palsy and he was referred to the plastic surgery department. On 10 January 2013, the Respondent attended the plastic surgeon. An ultrasound carried out on 24 January demonstrated a large haematoma in the forearm immediately adjacent to the brachial artery and compressing the adjacent vein and median nerve.

The Respondent underwent surgery on 28 February for drainage of the haematoma and decompression of the right median nerve. Post-operatively, the Respondent's pain ceased. However, he was left with limited movement and some discomfort, requiring a period of hand therapy twice weekly.

The Respondent made a claim for damages against the East Metropolitan Health Service and, ultimately, commenced proceedings for damages on the grounds that the residual problems he was experiencing were due to unreasonable delay in his medical treatment.

Decision at first instance

The trial Judge found in favour of the Respondent, holding that the Appellant had been negligent in its failure to arrange earlier investigation of the Respondent's complaints.

Issues on appeal

Causation

The Appellant raised three appeal grounds in relation to causation, essentially taking issue with the finding that the delay in treatment caused the residual disability, that surgery could or should have been performed by 6 or 7 December, and stating that the evidence did not show the extent to which the disability would have been improved with earlier intervention.

In particular, the Appellant alleged that an EMG was not possible within two to three months in the public health system, even in an emergency.

Quantum

The Appellant also raised six appeal grounds regarding the assessment of quantum. The most relevant being that the trial Judge erred in allowing general damages in the amount of $50,000, by failing to apply s9(2) of the Civil Liability Act (and deducting 'Amount A', the statutory deduction).

The Appellant also submitted that the trial Judge erred in the award of economic loss, having regard to the Respondent's work history (which included substantial variation in earnings, and depression in 2003-2006).

Court of Appeal decision

Causation

The Court of Appeal observed the expert evidence was that earlier investigation, at least by ultrasound, ought to have been performed within 10 days of the failed catheter attempt, which would have demonstrated the need for timely surgery.

In relation to the argument that surgery could not have been performed by 6-7 December in the public health system (on the basis of the lack of EMG availability), the Court noted that whilst evidence had been led that an EMG could not have been performed within two to three months, even on an urgent basis, an ultrasound could have been carried out at any time, and it was uncontested this would have detected the haematoma. The limited availability of an EMG was therefore irrelevant.

The Court observed that the expert evidence led at trial was that surgery ought to have been performed within two weeks, and that surgery could in fact have occurred within days.

The Court further noted that the expert evidence supported the view that the likelihood was treatment without delay would have left the Respondent with no disability.

Quantum

The Court also dismissed the Appellant's appeal grounds in relation to quantum, save as to general damages.

The Court considered that the trial Judge's reasoning was not clear with regard to the assessment of non-pecuniary loss, with it being possible that his Honour had either awarded $50,000 and then failed to make the relevant statutory discount or had reached the figure of $50,000 by awarding a higher figure and then making the discount (though no mention of this was made in his Honour's reasons).

The Court held that the trial Judge erred in failing to apply the statutory discount to the award and upheld this appeal ground (deducting $20,000 for the amount awarded).

With respect to economic loss, the Court noted that the trial Judge did not overlook the Respondent's difficult work history, but considered there was no reason to suppose such difficulties would result in any long-term loss of earning capacity.

The information published in this paper is of a general nature and should not be construed as legal advice. Whilst we aim to provide timely, relevant and accurate information, the law may change and circumstances may differ. You should not therefore act in reliance on it without first obtaining specific legal advice.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Kott Gunning is a proud member of

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.