The low point for the Australian medical insurance industry was in 1999 and 2000, with exponential increases in medical insurance premiums and the collapse of the HIH Insurance Group in March 2001. Since then, Australia has introduced a series of reforms, including the capping of compensation awards and dispute-resolution procedures that stipulate mediation or arbitration as the first step.
Damages from pain and suffering are, therefore, subjective. There is no formula and certainly no standardized calculation for pain and suffering. It is the job of the jury (or the judge if there is no jury) to determine what is fair and reasonable, which they will often do based on their own life experiences. The jury will consider whether the plaintiff is credible and sympathetic. This subjectivity means that damages from pain and suffering can vary tremendously from case to case -- even if the underlying injury is the same.
The civil tort of assault is premised on the fact that a person says something or otherwise implies that he or she will have some type of harmful or offensive contact with the victim and the victim has reasonable apprehension of this contact occurring. This tort does not require that the contact actually occur, but merely requires that the victim has the apprehension that it will. In the medical context, this may occur if a doctor threatens to take medical action against the patient’s will.
A patient trying to prove misdiagnosis must show that a doctor in the same or similar specialty would not have misdiagnosed the illness or injury. The plaintiff will have to show that the doctor did not include the correct diagnosis on the list and that a competent doctor would have included it. Alternatively, the plaintiff must show that the doctor listed the correct diagnosis but did not perform the right tests to arrive at the correct diagnosis by the end of the differential diagnosis method.
How can you tell the difference between appropriate, but unsuccessful care and medical malpractice? Ask. Ask your doctor. Get second opinions if possible. Talk to lawyers, who may have medically trained staff that can give an informed opinion, or who may have dealt with the exact same issue (or doctor) you are dealing with. Do whatever you can to attempt to allay any misgivings you have about your care. But take any opinions with a grain of salt. Some doctors simply won’t accuse a “brother physician” of making a mistake. Some malpractice attorneys will exaggerate the potential of your claim in an attempt to make money. Use your best discretion when seeking opinions on your treatment, but be diligent in the pursuit of information. Until you file a lawsuit, you are your own best advocate and investigator.
Despite that fact that the Constitution promises you the right to health care, no one has successfully sued the State for the non-delivery or lack of health care. Several test cases have concluded that, despite the Constitution and the Patients’ Rights Charter, the government has no absolute obligation to provide access to health care. Instead, the government is required to “progressively realise its obligations” to its citizens. In practical terms, this means, for example, that a patient who needs dialysis and cannot be treated because of a lack of facilities cannot sue the State.
About three-quarters of mediations result in a satisfactory outcome, often within a day, but mediation is not legally binding until a written agreement is signed and the case can proceed to court. The NHS Litigation Authority launched a mediation service in 2014 for cases that have reached the compensation stage (contact the trust involved directly for more information). The Tutu Foundation also offers a mediation service (tutufoundationuk.org, tel 01865 514830).
I have a hard time reconciling this particular doctor’s ‘niceness’ with his clinical practice/beliefs. For example, when I objected to his opinion that the best standard of care for my daughter was electroconvulsive therapy, (at the height of her intellectual development) even though she was in a extreme state and unable to sign a consent form and make a fully informed medical decision, he strongly hinted as a part of his argument, that the anti-psychotic drugs that she had been given were ‘toxic.’ (Doctors are increasingly aware of the limitations and adverse properties treatment built around drug maintenance, especially neuroleptics but it is rare for doctors to share even a hint of doubt about medications) I could tell he was becoming uncomfortable with my objections, and my emotions around ECT. I hinted that I was willing to obtain an emergency injunction against ECT if necessary. Fortunately, this was not needed, as the hospital had a Director of Medical Ethics who was able to conduct a private interview with my daughter and my request, and as a result, confirm that my daughter did not want to be shocked. Dr. Sampley did not pursue ECT. Thankfully, he did not pursue it and I cite the excellent relationships and education/outreach that David Oaks established in our locality because, by happy coincidence, MindFreedom is headquartered here.
Your attorney should also disclose “bad facts” in the opening statement. A bad fact is anything the defense would want to bring to the jury’s attention because it makes the defense case much stronger. For example, your failure to follow your doctor’s prescribed treatment is a bad fact. By disclosing bad facts first, your attorney can take the sting out of them.
If you or a loved one have suffered from the negligent infliction of emotional distress, it is important to speak with a skilled personal injury attorney. Contact Arnold & Smith, PLLC today for a free consultation with one of our experienced personal injury attorneys about the merits of your case. Personal injury claims must be made within certain time periods of the injury or you lose the right to bring your claim, so time is of the essence in this area of law.
Complaints that hospitals can’t resolve—each health authority has a Patient Care Quality Office to deal with complaints that hospitals cannot resolve. Each health authority also has a Patient Care Quality Review Board. They review complaints that the Patient Care Quality Offices have not resolved. For more information, call 1.866.952.2448 or see the Boards’ website.
Do you have skeletons in your closet? Were you less than truthful about your health and/or physical condition? Are you prepared to subject yourself to hours of questioning from attorneys, both yours and likely several others? Are you prepared to make financial disclosures that will become public? When you file a lawsuit, particularly a medical malpractice lawsuit, your life becomes a very open book -- nearly everything is fair game.