Patient’s ‘dishonest’ $800,000 negligence claim dismissed by the court

Key messages from the case

When a patient brings a legal claim about their care, expert evidence is essential in assisting the court to determine whether the care met the standard expected at the time and whether their injuries are a result of the care they received.   

A judge recently dismissed a patient’s claim 27 years after the original surgery. After a hearing lasting 24 days and evidence from 12 medical experts, the court found the patient was a dishonest witness and the doctor had been a “cogent and careful witness” and the clinical care had been entirely appropriate. The litigation process can sometimes take years, and throughout the process, honesty and accuracy are essential when providing statements and giving evidence. 

Details of the decision

Mr A weighed 148kg with prediabetes and a family history of gross obesity when he consulted bariatric surgeon, Dr I. Mr A had severe lower back problems after a previous injury and pain in his ankles and knees. Mr A was taking medication for gastro-oesophageal reflux.

Based on Mr A’s presentation and history, Dr I recommended biliopancreatic diversion (BPD) surgery. Dr I performed the surgery and provided ongoing care for around eight years afterwards.

Nine years after the initial surgery, Mr A complained to the medical regulator about the BPD procedure and, Dr I’s follow-up care. After a conciliation meeting the conciliator found no further investigation was necessary.

Another 12 years later, 21 years after the initial surgery, Mr A brought a negligence claim against Dr I. He said he had experienced major neurological damage due to nutritional deficiencies following the surgery. He claimed he had been unable to work, had experienced major depressive disorder, impaired memory, behavioural disturbances and impaired ability to manage financial or daily living activities. He alleged Dr I had failed to:

• warn him of the risks and side-effects of the surgery
• provide appropriate post-operative treatment.

The court also needed to determine whether Mr A was out of time to bring the action.

Limitation periods

Australian jurisdictions have legal time limits on how long a person has to bring a claim of negligence. This is called the limitation period.

This time starts to run at the point the cause of action is first identifiable, or discoverable. This can be some time after an adverse event, for example if symptoms do not start to appear until later, and when expert evidence explains a connection between any alleged injuries and the treatment provided.

Patients may also be able to apply for an extension of time due to a disability that prevents or impedes them from managing their affairs.

In this case, Mr A asked the court to grant an extension because he claimed:

• he had been unable to instruct lawyers effectively, or, alternatively
• he was unaware of the connection between the surgery and his disability until he received the expert reports

The court found this was demonstrably false. Firstly, he had brought several other legal claims for compensation over the same period. The court found he was clearly able to instruct lawyers and did not have a relevant disability or impairment that prevented him from doing so. Secondly his previous complaint to the regulator about Dr I’s care was evidence he was aware of a possible connection between his claimed symptoms and the surgery. There was no explanation for why he had delayed a further 12 years before bringing this claim.

The court also found that even if the claim had been discoverable later, it would not have been just and reasonable to extend the limitation period. The court therefore did not grant an extension of time.

Informed consent and failure to warn of risk

Mr A claimed he had not understood the risks of surgery and that Dr I had failed to warn him of the risk that micronutrient deficiency could cause neurological damage or cognitive impairment.

By the time of the claim and hearing, Dr I had no independent recollection of his treatment of Mr A. His own records had been destroyed appropriately some years following his retirement. Dr I’s evidence was therefore based on his usual practice and what contemporaneous records were available.

The judge preferred Dr I’s evidence, and accepted Dr I had explained the procedure and provided supporting materials outlining:

• the procedure itself
• how it worked and what it involved
• how it compared with gastric banding
• expected benefits
• potential complications and side-effects including known complications and potential risks due to nutrient deficiencies
• ongoing risks and post-surgery management requirements, including the need to adhere to a strict diet, take supplements long-term and undergo regular blood tests.

Dr I also provided contact details of previous patients, with their permission, so potential patients like Mr A could contact them to discuss their experiences.

The judge rejected Mr A’s argument that Dr I was negligent in giving him written information when Mr A was known to have literacy challenges. The judge found Dr I had not simply relied on written documents, but had explained the procedure, inherent risks and side effects in a way that Mr A was able to understand.

The judge found Mr A had not established he had suffered neurological damage or cognitive impairment as a result of the surgery. In any event, his Honour also concluded these risks were so remote in the circumstances of Dr I’s care that no warning was required.

Negligence and standard of care

Dr I’s lawyers argued that Dr I had met the standard of care required under the relevant civil liability legislation. That is, a doctor will not be found negligent if the care they provided was widely accepted at the time by peer professional opinion as competent professional practice.

Experts agreed Dr I’s treatment met this standard. They agreed it was appropriate to recommend BPD rather than gastric banding based on Mr A’s presentation and history.

Experts also agreed Dr I had provided appropriate ongoing monitoring and investigations until Mr A stopped attending. The follow-up care also included six vouchers for consultations with a dietician and Mr A attended three appointments using these vouchers. Dr I also wrote to patients every six months with a reminder about follow-up care.

Mr A’s argued that these letters amounted to an admission that patients could not be relied on to adhere to the follow-up regime and that Dr I’s systems were unreliable. The judge rejected this, agreeing with the expert evidence that surgeons could not compel their patients to adhere to a follow-up regime and the steps Dr I took were ‘appropriate, comprehensive and showed a great deal of care’.

Causation

Mr A said he had gone from being capable and hardworking to a state of profound physical and cognitive dysfunction. The judge concluded Mr A was a dishonest witness whose claims of harm were contradicted by the available evidence.

His employment history contradicted his claims of being unable to work after the BPD surgery.

It was found that physical and mental injuries Mr A claimed were due to the surgery were in fact pre-existing. The evidence also indicated he was capable of managing his affairs and instructing lawyers.

The judge concluded that Mr A had not established he had suffered harm as a result of the surgery.

Outcome

The judge rejected all Mr A’s claims and found Dr I’s care had not been negligent.

Mr A was ordered to pay Dr I’s legal costs.

Key lessons

If your care is ever questioned, it will be judged against what was widely accepted by your peers as competent professional practice at the time of the treatment.

An effective consent discussion includes discussing material risks and benefits of the treatment, including potential adverse effects, common outcomes and side effects, likely recovery process and any contra-indications. Also discuss available alternative treatments.

You need to disclose risks a reasonable person in the patient’s position would be likely to consider significant, and risks that you know or ought reasonably to know would be significant to the patient. However, you are not expected to disclose risks that are so remote or insubstantial that a reasonable person in the patient’s position would not factor them into their decision-making.

It is appropriate to give patients copies of brochures or reading material from reputable sources. Do not rely on written materials alone, and ensure you also discuss the information with the patient and satisfy yourself they understand the contents.

If you provide any written information, keep a copy in the patient’s clinical record, so that you can establish what information they contained at the time.

There was no criticism that Dr I had appropriately destroyed medical records in this case but make sure you know the requirements for retaining and disposing of medical records in your state or territory.

References and further reading

Avant resources – Claims and complaints: what you need to know

Avant eLearning – When patients complain

Avant factsheet – Consent: the essentials

Avant factsheet – Storing, retaining and disposing of medical records