What to do When Medical Treatment Doesn’t go to Plan

When medical treatment does not go to plan, it can have a life-changing effect. Choosing the appropriate forum to air concerns can be difficult and depends on the circumstances of the case. Turner Freeman has a long history of advising clients in relation to their healthcare rights and legal options.


The first, and perhaps most commonly discussed option is a claim in medical negligence. In order to succeed in such a claim, it must be established that the practitioner’s treatment fell so far below the accepted standard of care that it amounted to a breach of duty of care. You must then show that the breach caused you to suffer a personal injury by establishing that it is more likely than not that you would have avoided your outcome if you had received an alternate course of treatment. Finally, you must show that you have suffered some harm or damage. Obtaining supportive expert evidence from an experienced practitioner is the key to establishing negligence and succeeding in a claim.


One of the difficulties in establishing negligence is satisfying that the specific breach of duty caused the particular harm alleged. Sometimes an expert cannot provide supportive evidence linking the breach of duty to the damage. 


In other cases, it might be that the particular conduct, for example, poor bedside manner, was disappointing but cannot be said to be a breach of duty of care. 


The second option available is to make a complaint to the Health Care Complaints Commission (‘HCCC’). The HCCC is a NSW government body. Its role is to investigate complaints made about healthcare practitioners or facilities where issues in relation to public health or safety have been raised. The HCCC has powers to do what a medical negligence claim cannot do – it can and will make findings and orders which can have an impact on a practitioner’s ability to practice medicine. Such orders can include cancelling or imposing conditions on a practitioner’s registration.


Recently, the HCCC investigated a number of complaints made regarding Dr Richard Reid. Dr Reid was a gynaecologist who treated women for pelvic organ prolapse and resulting incontinence issues. He was found guilty of professional misconduct in relation to his recommendation and consent for surgery using a type of mesh device known as “Tissue Fixation System”. By the time the HCCC handed down its decision, Dr Reid had retired from practice. The HCCC noted that if Dr Reid had still been registered, it would have cancelled his registration to practice medicine. It ultimately made an order disqualifying Dr Reid from applying to practice for five years. 


The third option is only available when concerns are raised with someone’s treatment after they have died. If the death was suspicious or reportable, it may be the subject of a Coronial Inquest. The role of a Coroner is to investigate a person’s death and make findings as to the deceased's identity, date and place of death, cause of death and the manner or circumstances surrounding the death.


At the end of an Inquest, a Coroner may make recommendations if they are of the view that healthcare systems or procedures contributed to the manner or cause of the death. Those recommendations are made in the hope that they will bring about change and avoid future deaths. 


There was an inquest into the death of Ahlia Raftery, who died on 19 March 2015 while she was a patient at the Mater Mental Health Unit. Due to the circumstances of her death, the Coroner made a number of recommendations to the Hunter New England Health District in relation to amending local procedures and policies, ensuring staff are adequately trained in mental health units and developing policies relating to observations of patients in mental health units.


Health and medical law is complex. It is important to get advice about your legal rights after unexpected medical outcomes so that you can make an informed decision about the right forum to pursue any concerns.

Turner Freeman Lawyers has been recognised as a NSW Leading Law Firm in medical negligence for the last two years. Our recognition is based on our years of experience and expertise in this highly specialised and complex area of law. Phone 4925 2996 or visit www.turnerfreeman.com.au

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