Compensation lawyers are sceptical about the assurances from Queensland Health Minister Steven Miles to compensate patients if an investigation finds a Redland Hospital surgeon failed to detect their cancers in a testing scandal.
Brisbane injury compensation lawyers say despite the assurance, the government’s lawyers are likely to push for enforcing the claims limitation period or argue that people whose cancer subsequently developed would have become ill anyway.
Queensland Health has banned a Redland Hospital doctor from performing endoscopies and colonoscopies. The ban arose from issues and examinations between 2012 and 2018
Media reports state the doctor performed scopes on about 1500 Redland Hospital patients between 2012 and 2018 but the Metro South Hospital and Health Service has so far only rescreened 450 people, identifying 14 with “a diagnosis of bowel cancer”.
Media reports state Queensland Health was only briefed by Metro South about the problems with the surgeon late last year and is in the process of contacting the other 1000 patients and offering rescreens by the end of March.
John Harvey, a Special Counsel with Bennett & Philp Lawyers and an expert in medical negligence matters, says questions should be asked on why it is only being reported some two years after problems with the examination came to Queensland Health’s notice.
He says anyone who has had the tests at the Redland Hospital during that period, and now fear they were misdiagnosed should insist on an urgent re-screening and also seek legal advice.
As a solicitor specialising in medical negligence law, I think patients need to know there is a strict time limitation of 3 years in which to commence a claim in Queensland. This may be extended in special circumstances but cannot be guaranteed,” he says.
John says even those patients whose examinations were undertaken in 2018 will have their limitation periods expire in 2021 which is not very far away as the procedures involved in medical negligence claims are complex and time-consuming.
“Those patients who had an earlier examination should still consult a solicitor urgently as there may be a valid basis to extend their limitation period.
“Potential claimants should not be too comforted by assertions that Queensland Health will behave as a model litigant as its lawyers are not likely to readily waive a defence of expiry of the limitation period,” John says.
His view is supported by injury compensation law Accredited Specialist and Bennett & Philp Director Mark O’Connor who says despite the Minister’s assurances, patients should expect a fight for redress.
“In a situation like this, if mistakes have been made, compensation should be offered without the usual lengthy adversarial claims process. However, with cancer, insurers will often argue that the end result would still be the same whether the cancer was detected in a test or not and earlier detection might not necessarily change the outcome.
“There should obviously be shock and outrage that a situation such as this could happen and go on undetected for so long. I would congratulate the Minister for his assurance of compensation, but from past experience, the fear is the insurers will want to fight any claim.
“What we need is an emphatic promise from the Minister that the government will make an early admission of liability in cases where there is fault and fast track a conciliatory, rather than adversarial, resolution process of victims’ claims stemming from this debacle,” Mark says.
Individual liability limited by a scheme approved under professional standards legislation (personal injury work exempted).