Health Health

Health

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Do you need a team of lawyers who understand the legal issues that impact the health sector?

At Barry.Nilsson., we have the legal knowledge, and the medical and technical expertise, to handle any health-related matter.

Some of our lawyers have qualifications in science and other health-related disciplines, which gives them a deep understanding of these kinds of cases. Others have held in-house legal roles in major hospitals, which means they have experience assisting with a wide range of matters involving medical practitioners and allied health professionals.

Robert Samut, who leads our Health team, is highly regarded by clients for his creative and practical solutions to legal problems, and for his talents as a speaker and an educator.

Our areas of specialisation

We specialise in:

  • Advising health service providers on a wide range of medico-legal matters, including providing one client with a 24/7 helpline advice service
  • Resolving medical negligence matters
  • Assisting with the resolution of complaints (including those made to the Queensland Office of the Health Ombudsman)
  • Representing clients (including doctors, nurses, occupational therapists, midwives, dentists, psychologists, podiatrists) facing disciplinary hearings, investigations and reviews being undertaken by the various registration boards
  • Appearing in a wide range of coronial inquests, including those involving neonatal, paediatric and maternal deaths, as well as those that have occurred in aged-care and assisted-living facilities
  • Conducting internal investigations, including root cause analyses and clinical reviews
  • Undertaking general reviews of hospital policy, procedures and by-laws.

Why talk to us?

We listen carefully to what you have to say

Our approach is slightly different from that of other firms.

We want to really get to know how your organisation operates, and to appreciate the problems and challenges you are facing. That depth of understanding helps us to achieve the best outcomes for you.

We put ourselves in your shoes

There can be few more stressful experiences for a medical or an allied health professional than to face a disciplinary proceeding or claim of negligence.

If you find yourself in this position, you can be confident that we, as the lawyers for your insurer, will spend the time needed to understand the facts and to identify an optimum solution.

We’re not the kind of lawyers who sit behind their computers and send you the occasional email. Instead, we believe that, particularly in medical negligence cases, regular, clear communication is vital.

We will work collaboratively with you to respond to any complaint you are facing, support you through the entire process and, most importantly, keep you informed at every stage of your matter.

We work quickly and efficiently to achieve an in-depth understanding of the evidence

In health and medical cases, the evidence is often not only complex, but also crucial in understanding and resolving a matter.

This is why we provide you with a team of legal experts who have expertise in working in the health law area and who understand how to process, collate and analyse medical evidence.

We’re strategic in our approach to medical and health matters

We are strategic and tactical problem-solvers who look for fast, innovative solutions to whatever situation you are facing. Rather than fall back on a formulaic approach, we focus on managing risks and resolving complaints before they become claims.

This means we look at every situation not just from a legal perspective, but also from a practical one. Our clients tell us that they appreciate our fresh perspective, which is focused on delivering the best possible outcome in the circumstances.

Finally, if your matter becomes litigious, you can be confident that you are in the hands of a team of experienced litigators.

We provide advice that is clear, practical and extremely user-friendly

Ultimately, we see our job as making your life as easy as possible.

We know that, because you’re busy, you need advices that enable you to extract the information you need quickly and easily. No one wants to have to decipher pages of legalese or wads of case law. Instead, you want to be able to determine what we believe are the key issues in your matter, and what our recommendations are for moving forward.

In addition to being concise and to the point, our advices:

  • Use a format for key facts and comments that assists with understanding the medical narrative
  • Provide the explanatory detail you require to understand the key issues
  • Refrain from quoting pages of case law and background information
  • Provide clear recommendations
  • Explain what you need to do and when you need to do it
  • Use diagrams (if appropriate).

We provide regular updates for clients operating in the health sector

We know that if you work in the health sector, it’s difficult to keep up to date because the relevant law changes so quickly.

As a result, we provide regular updates through HealthFiles to keep you informed of the latest developments in health and medical law.

We can design bespoke courses to meet your training needs

We run seminars for our clients on the latest developments in health and medical law, or we can address issues of specific relevance to your particular organisation. The feedback we’ve had from clients is that these sessions are practical but also engaging. During the session, you will have the chance to discuss with the facilitator and other participants any challenges and issues not otherwise covered.

Our Breakfast Club briefings and industry lunches are also very popular.

Our clients

We act for:

  • Insurers
  • Hospitals
  • Medical centres
  • Medical device manufacturers
  • Complementary medicine manufacturers
  • General practitioners
  • Medical specialists
  • Dentists
  • Nurses and midwives
  • Allied health professionals.

Our experience

Medical malpractice
  • We acted for a busy hospital that performed emergency surgery on a patient. The hospital became one of several respondents to a medical malpractice claim in the vicinity of $4 million. We obtained evidence in support of the hospital’s view that the treatment provided to the patient was appropriate. In addition, the hospital’s objective was to resist pressure from the medical defence insurers to contribute money to the settlement. We worked closely with the hospital to review the evidence and were able to establish that the evidence did not support any liability on the part of the hospital. The claim was resolved prior to litigation without any financial contribution from the hospital.
  • We acted for a hospital in a potentially media-sensitive claim where the claimant sought damages as a result of a terminal illness. Under the circumstances, the claim was fast tracked with an accelerated timetable, meaning that all the evidence was collected and the matter was resolved within a number of months. By investigating the matter promptly and thoroughly, we were able to advise the hospital regarding timely admissions of certain issues in the claim. This served two purposes: it removed the obligation on the hospital to disclose potentially sensitive internal documents; and it narrowed the issues, which helped ensure that the matter was resolved quickly. By focusing on the key issues of causation and apportionment, we were able to obtain a significant contribution from the medical defence insurer. This meant that the matter was resolved for an amount well below the reserve.
Privacy disputes

We are currently acting for a medical practice in a dispute with the Office of the Australian Information Commissioner. The medical practice is currently refusing to provide a former patent with unfettered access to her medical records, on the grounds that it reasonably believes that such access would pose a threat to the patient’s life, health or safety.

Privacy and disclosure advice

We are currently acting for a hospital in a civil claim by a patient who suffered harm as a result of the criminal conduct of another patient while both were inpatients at the hospital. In addition to the civil claim, we are advising the hospital on a number of associated issues.

One of these issues involves advising the hospital regarding the tension between its obligations under the Privacy Act 1988 (Cth) and its disclosure obligations in a civil claim for compensation. More specifically, we are advising on to what extent the hospital is required and permitted to disclose documents from the perpetrator’s records in a situation where the hospital is under significant privacy obligations regarding the handling of the perpetrator’s sensitive personal information.

Court applications on medico-legal matters

We have experience of handling court applications on issues relating to capacity, consent and end-of-life decisions.

During her time spent practising as a solicitor in the UK, Meredith Jacobs acted on behalf of a major acute teaching hospital in an application to the High Court for a declaration regarding a patient’s capacity and best interests.

In this case, the female patient was an eccentric 50-year-old socialite who had taken an overdose and was in liver and renal failure. She initially agreed to undergo dialysis. After a few weeks, however, she decided that her life had ‘lost its sparkle’ and that she did not want to grow ‘old and ugly’. She said that she wanted to die and consequently refused dialysis.

The psychiatrists involved in the patient’s case felt that she lacked the capacity to make the decision.

The liver and renal doctors were conflicted, as there was little doubt that keeping the patient on long-term dialysis against her will would cause her significant distress.

To further complicate the matter, the patient’s daughters felt that their mother had always lived a ‘sparkly’ lifestyle and that her decision to die was capacitous and in keeping with her personality.

The hospital approached the Court because it wanted it to determine whether the patient had capacity and, if not, to decide whether dialysis would be in the patient’s best interests.

The Court held that the patient had capacity and, as a result, she was allowed to die in accordance with her wishes.

In this matter, it was important to obtain the Court’s declaration because the capacity issue had not been clarified. On one hand, if the hospital had allowed the patient to die, there is no doubt that the coroner would have taken a dim view of its handling of the case. On the other hand, if the hospital had forced the patient to accept treatment, there may have been civil, disciplinary and even criminal repercussions for its staff.

Complaints to the Queensland Office of the Health Ombudsman (OHO)

We acted for a hospital in relation to a case where a patient had made a complaint to the OHO regarding significant complications and infections following knee surgery.

In this case, the hospital instructed us to respond to the OHO’s request for information.

From our examination of the records, it was clear that the patient had suffered persistent infection for a number of years following the surgery and, as a result, had to undergo further medical procedures.

We reviewed the medical records and focused on the clinical follow-up and investigations. In addition, we studied the antibiotic regime that was used by the hospital.

In our submissions to the OHO, we argued that the infection had been treated appropriately with antibiotics and numerous washouts and debridements. More specifically, we showed that the patient had been provided with a high-level multidisciplinary assessment of their treatment, which included input from the orthopaedics team, the infectious diseases team, Hospital in the Home, haematology, occupational therapy and physiotherapy.

Based on this evidence, our submissions to the OHO argued that the patient had suffered from an unfortunate but recognised complication of the surgery.

A short period of time after we made our submissions, the OHO informed our client (the hospital) that a decision had been made and no further action would be taken.

Coronial inquests

We acted for a community nursing service following the death of a patient at an assisted-living home.

In this case, the patient developed pressure area wounds following an extended stay in hospital and was then discharged to an assisted-living facility where our client provided nursing services.

The patient subsequently died from respiratory arrest secondary to the sepsis following infection.

The coroner investigated the death.

Counsel assisting the coroner proposed recommendations regarding our client’s provision of care and treatment that had the potential to impose unreasonable burdens upon our client’s operations.

We obtained evidence that the treatment provided by our client to the patient was appropriate. In addition, we gathered and presented evidence that, following the patient’s death, the community nursing service undertook a review of its processes and improvements were made. In this context, we advocated against the recommendations that would have imposed significant burdens upon our client.

The coroner found that it was not necessary to make any recommendation directed towards our client, as it had been proactive in undertaking an internal review of its service and had implemented improvements following the patient’s death.

Finally, and most importantly, the coroner made no adverse findings in relation to our client.

Disciplinary complaints

We have assisted one practitioner in defending eight complaints by seven complainants over a number of years, including those referred to the relevant registration board. In only one of those matters has a finding against our client been made; in that case, our client was merely cautioned.

  • In 2007, a complaint was made in relation to our client’s role in Family Court of Australia proceedings involving a custody dispute. The complainant alleged that our client engaged in unprofessional behaviour involving breach of privacy, intimidating tactics, bias, and improper costing arrangements. Our client elected to have the matter referred to the tribunal. Prior to a referral notice being filed, and as a result of advice provided by the board’s solicitors (following consideration of our submissions), the board reversed its decision and decided to take no further action against our client.
  • In 2009, a complaint was made in relation to our client’s role in Family Court of Australia proceedings involving a custody dispute. The complainant alleged, among other things, that the family report our client produced was biased and contained factual inaccuracies, and that its findings lacked evidence. The board investigated the matter and commenced disciplinary proceedings. Our client elected to have the matter referred to the tribunal. Prior to a referral notice being filed, and as a result of advice provided by the board’s solicitors (following consideration of our submissions), the board reversed its decision and decided to take no further action against our client.
  • In 2010, our client provided evidence in the Family Court of Australia in relation to the family report described in Matter Example No. 2. The complainant made an additional complaint alleging that our client’s evidence was inappropriate and biased, and alleging that she had perjured herself. The board referred the complaint to the Australia Federal Police (AFP) without notifying our client. The AFP rejected the complaint. The board then investigated the matter and subsequently made a finding. Our client challenged the board’s finding and elected to refer the matter to the tribunal. Our client was successful in the tribunal when it held that none of the grounds the board had relied on for a finding of unsatisfactory professional conduct had been established. The tribunal made a costs order against the board in favour of our client.
  • In 2011, a complaint was made against our client in relation to her use of a title. The board investigated the matter and subsequently referred it to a hearing, alleging that the practitioner had engaged in professional misconduct. Following our further submission, the board cautioned the practitioner for use of the title.
  • In 2013, a complaint was made in relation to our client’s preparation of a family report. The complainant’s allegations related to our client’s conduct during the interview process, especially in relation to the interviews of the children. The independent children’s lawyer provided a letter of support for our client. The board investigated and retained an expert to review the family report. The board’s expert expressed the opinion that the report was not only adequate for its purpose but a good example of a comprehensive report for a court dealing with a complex legal issue. Following consideration of the matter, the board dismissed the complaint.
  • In 2014, a complaint was made in relation to our client’s preparation of a family report. The complainant’s allegations related to our client’s recommendations that the subject child be provided with the opportunity to learn of and develop a relationship with their biological father and paternal family members. Following review of the practitioner’s submission, together with the letter of support provided for our client by the independent children’s lawyer, the board resolved to take no further action on the basis that it believed that the complainant’s allegations were lacking in substance.
  • In 2015, a complaint was made in relation to our client’s social assessment report. Our client was commissioned to provide an opinion as to whether there was a parent willing and able to protect the children from significant harm, as well as whether there was a parent available to make decisions regarding the long-term care, welfare and development of the children. It is worth noting that this case involved a long and complex child protection history that required a number of intakes and a protection notification. The board resolved to conduct an investigation and to retain an expert to review our client’s social assessment report. The board refused to take into account our concerns about whether the person it retained to review our client’s social assessment report was a true expert in the field. When the board’s expert produced an adverse report, we obtained a report from another expert and submitted that our expert should be preferred given their extensive experience and expertise. Following consideration of our submissions and the expert opinion we obtained on behalf of our client, the board resolved to take no further action against our client.
  • In 2016, a complaint was made by Child Safety in relation to our client’s conduct during interviews for a social assessment report. The independent children’s lawyer who retained the practitioner has provided a number of letters of support. The Federal Circuit Court has made orders consistent with our client’s recommendations. The matter is ongoing and is being defended.