Liability in negligence and the failure to disclose multiple risks in surgery : I would have been willing to run the risk

It has been 21 years since the decision in Rogers v Whitaker and the legal principles concerning informed consent and liability for negligence are still strongly grounded in this landmark High Court decision. This paper considers more recent developments in the law concerning the failure to disclose inherent risks in medical procedures, focusing on the decision in Wallace v Kam [2013] HCA 19. In this case, the appellant underwent a surgical procedure that carried a number of risks. The surgery itself was not performed in a sub-standard way, but the surgeon failed to disclose two risks to the patient, a failure that constituted a breach of the surgeon’s duty of care in negligence. One of the undisclosed risks was considered to be less serious than the other, and this lesser risk eventuated causing injury to the appellant. The more serious risk did not eventuate, but the appellant argued that if the more serious risk had been disclosed, he would have avoided his injuries completely because he would have refused to undergo the procedure. Liability was disputed by the surgeon, with particular reference to causation principles. The High Court of Australia held that the appellant should not be compensated for harm that resulted from a risk he would have been willing to run. We examine the policy reasons underpinning the law of negligence in this specific context and consider some of the issues raised by this unusual case. We question whether some of the judicial reasoning adopted in this case, represents a significant shift in traditional causation principles.

Civil litigation limitation periods : submission to the Royal Commission into institutional responses to child sexual abuse

This submission makes one simple yet powerful recommendation for law reform to promote justice for survivors of child sexual abuse. It is informed by extensive analyses of the phenomenon of child sexual abuse and its psychological sequelae, legislative time limits and case law across Australia and internationally, the policy reasons underpinning statutory time limits generally, and the need for fairness, certainty and practicability in the legal system. The recommendation is that legislative reform is required in all Australian States and Territories to remove time limitations for civil claims for injuries caused by child sexual abuse.

Securing medical devices Part B : what’s available for nasogastric tubes?

This article is the second part of a two-part series examining securement options for commonly used therapeutic devices in the adult intensive care unit. Part A focused on endotracheal device securement.1 This article addresses nasogastric tube (NGT) securement options and with the aim of identifying the available range of NGT securement devices in Australia as a resource for clinicians seeking to explore options for tube stabilisation. Nasogastric feeding or gastric decompression tubes are commonly inserted via the nostril/nares. The National Pressure Ulcer Advisory Panel (NPUAP) 2011 position statement on mucosal pressure injuries, highlighted that mucosal tissues are vulnerable to pressure from devices.2 Securing of these devices sometimes leads to pressure-related injury to the internal mucosa due to difficulty visualising the mucosa and failure to reposition the nasogastric tube to relieve the pressure in a particular area.3 The nasal orifice is much smaller than the oral cavity and regular tube position changes are vital to minimise the risk of mucosal damage and ulcer development.

An acute growth factor treatment that preserves function after spinal cord contusion injury

Inflammation of the spinal cord after traumatic spinal cord injury leads to destruction of healthy tissue. This “secondary degeneration” is more damaging than the initial physical damage and is the major contributor to permanent loss of functions. In our previous study we showed that combined delivery of two growth factors, vascular endothelial growth factor (VEGF) and platelet-derived growth factor (PDGF), significantly reduced secondary degeneration after hemi-section injury of the spinal cord in the rat. Growth factor treatment reduced the size of the lesion cavity at 30d compared to control animals and further reduced the cavity at 90d in treated animals while in control animals the lesion cavity continued to increase in size. Growth factor treatment also reduced astrogliosis and reduced macroglia/macrophage activation around the injury site. Treatment with individual growth factors alone had similar effects to control treatments. The present study investigated whether growth factor treatment would improve locomotor behaviour after spinal contusion injury, a more relevant preclinical model of spinal cord injury. The growth factors were delivered for the first 7d to the injury site via osmotic minipump. Locomotor behaviour was monitored at 1-28d after injury using the BBB score and at 30d using automated gait analysis. Treated animals had BBB scores of 18; Control animals scored 10. Treated animals had significantly reduced lesion cavities and reduced macroglia/macrophage activation around the injury site. We conclude that growth factor treatment preserved spinal cord tissues after contusion injury, thereby allowing functional recovery. This treatment has the potential to significantly reduce the severity of human spinal cord injuries.

UCPR r548 - requirement for report or proof of evidence intended to be relied on at trial

In Oates v Cootes Tanker Service Pty Ltd [2005] QSC 213, Fryberg J considered some interesting questions of construction in relation to the rule requiring the plaintiff to provide a statement of loss and damage in personal injuries proceedings (UCPR r 548) and the rule in relation to the giving of expert evidence (UCPR r427)

Disclosure of documents and limitation of actions

This article considers the decisions in Stephan v NRMA Insurance Limited [2001]QDC 002 and Bertha v Dragut [2001] QDC 003

Selective neuronal differentiation of neural stem cells induced by nanosecond microplasma agitation

An essential step for therapeutic and research applications of stem cells is their ability to differentiate into specific cell types. Neuronal cells are of great interest for medical treatment of neurodegenerative diseases and traumatic injuries of central nervous system (CNS), but efforts to produce these cells have been met with only modest success. In an attempt of finding new approaches, atmospheric-pressure room-temperature microplasma jets (MPJs) are shown to effectively direct in vitro differentiation of neural stem cells (NSCs) predominantly into neuronal lineage. Murine neural stem cells (C17.2-NSCs) treated with MPJs exhibit rapid proliferation and differentiation with longer neurites and cell bodies eventually forming neuronal networks. MPJs regulate ~. 75% of NSCs to differentiate into neurons, which is a higher efficiency compared to common protein- and growth factors-based differentiation. NSCs exposure to quantized and transient (~. 150. ns) micro-plasma bullets up-regulates expression of different cell lineage markers as β-Tubulin III (for neurons) and O4 (for oligodendrocytes), while the expression of GFAP (for astrocytes) remains unchanged, as evidenced by quantitative PCR, immunofluorescence microscopy and Western Blot assay. It is shown that the plasma-increased nitric oxide (NO) production is a factor in the fate choice and differentiation of NSCs followed by axonal growth. The differentiated NSC cells matured and produced mostly cholinergic and motor neuronal progeny. It is also demonstrated that exposure of primary rat NSCs to the microplasma leads to quite similar differentiation effects. This suggests that the observed effect may potentially be generic and applicable to other types of neural progenitor cells. The application of this new in vitro strategy to selectively differentiate NSCs into neurons represents a step towards reproducible and efficient production of the desired NSC derivatives. © 2013.

The effect of cryotherapy on the vascular regeneration following closed soft tissue trauma

INTRODUCTION Icing (cryotherapy) is being widely used for the treatment of closed soft tissue trauma (CSTT), such as those resulting from sport injuries. It is believed that cryotherapy induces vasoconstriction and through this mechanism reduces inflammation [1]. However, the impact of this technique on the healing of impaired vasculature and muscle injuries following trauma remains controversial. Recent evidence suggests that the muscle regeneration is delayed after cryotherapy [2]. Consequently, we aimed to investigate the effect of cryotherapy on the vascular morphology following CSTT using an experimental model in rats by contrast-enhanced micro-CT imaging. METHODS Fifty four rats were divided into three main groups: control (no injury, n=6), sham (CSTT but no icing treatment, n=24) and icing (CSTT, treated with one session of ice block massaged directly on the injured muscle for 20 minutes, n=24). The CSTT was induced to the left thigh (Biceps Femoris) of anaesthetised rats (Male, Wistar) to create a standardized and reproducible vascular and muscle injury using an impact device [3]. Following trauma, animals were euthanized after 1, 3, 7, and 28 days healing time (n=6 for each time point). For a three-dimensional vascular morphological assessment, the blood vessels of euthanised rats were flushed with heparinised saline and then perfused with a radio-opaque contrast agent (Microfil, MV 122, Flowtech, USA) using an infusion pump. Both hind-limbs were dissected, and then the injured and non-injured limbs were imaged using a micro-CT scanner (µCT 40, Scanco Medical, Switzerland) and total volume of the perfused blood vessels (TVV) was calculated. More detailed morphological parameters such as vessel volume (VV), diameter (VD), spacing (VSp), number (VN) and connectivity (VConn) were quantified through high resolution (6 µm), micro-CT-scanned biopsy samples (diameter: 8mm) taken directly from the region of the injured muscles. The biopsies were then analysed histologically to confirm the results derived from contrast-enhanced micro-CT imaging. RESULTS AND DISCUSSION The TVV was significantly higher in the injured legs compared to the non-injured legs at day 1 and 7 in the sham group and at day 28 in both sham and icing groups. The biopsies from the injured legs of the icing group showed a significant reduction in VV, VN, VD, VConn and an increase in VSp compared to those in the sham and control groups at days 1, 3 and 7, post injury. While the injured legs of the sham group exhibited a decrease in VN and VConn 28 days post trauma, indicating a return to the original values prior to trauma, these parameters had increased in the icing group (Figure 1). Also, at day 1 post injury, VV and VD of the injured legs were significantly higher in the sham group compared to the icing group, which may be attributed to the effect of vasoconstriction induced by icing. Further histomorphological evaluation of day 1 post injury, indicated that although cryotherapy significantly reduced the injury size and influx of inflammatory cells, including macrophages and neutrophils, a delay in vascular and muscle fiber regeneration was found at later time points confirming other reports from the literature [2]. CONCLUSIONS We have demonstrated using micro-CT imaging that the vascular morphology changes after CSTT, and that its recovery is affected by therapeutic modalities such as icing. This may be useful for the development of future clinical monitoring, diagnosis and treatment of CSTT. While icing reduces the swelling after trauma, our results suggest that it may delay the recovery of the vasculature in the injured tissue.

Women and ADR

Alternative dispute resolution, or ‘ADR’, is defined by the National Alternative Dispute Resolution Advisory Council as: … an umbrella term for processes, other than judicial determination, in which an impartial person assists those in a dispute to resolve the issues between them. ADR is commonly used as an abbreviation for alternative dispute resolution, but can also be used to mean assisted or appropriate dispute resolution. Some also use the term ADR to include approaches that enable parties to prevent or manage their own disputes without outside assistance. A broad range of ADR processes are used in legal practice contexts, including, for example, arbitration, conciliation, mediation, negotiation, conferencing, case appraisal and neutral evaluation. Hybrid processes are also used, such as med-arb in which the practitioner starts by using mediation, and then shifts to using arbitration. ADR processes generally fall into one of three general categories: facilitative, advisory or determinative. In a facilitative process, the ADR practitioner has the role of assisting the parties to reach a mutually agreeable outcome to the dispute by helping them to identify the issues in dispute, and to develop a range of options for resolving the dispute. Mediation and facilitated negotiation are examples of facilitative processes. ADR processes that are advisory involve the practitioner appraising the dispute, providing advice as to the facts of the dispute, the law and then, in some cases, articulating possible or appropriate outcomes and how they might be achieved. Case appraisal and neutral evaluation are examples of advisory processes. In a determinative ADR process, the practitioner evaluates the dispute (which may include the hearing of formal evidence from the parties) and makes a determination. Arbitration is an example of a determinative ADR process. The use of ADR processes has increased significantly in recent years. Indeed, in a range of contemporary legal contexts the use of an ADR process is now required before a party is able to file a matter in court. For example, Juliet Behrens discusses in Chapter 11 of this book how the Family Law Act 1975 (Cth) now effectively mandates attendance at pre-filing family dispute resolution in parenting disputes. At the state level, in Queensland, for example, attendance at a conciliation conference can be required in anti-discrimination matters, and is encouraged in residential tenancy matters, and in personal injuries matters the parties must attend a preliminary compulsory conference. Certain ADR processes are used more commonly in the resolution of particular disputes. For example, in family law contexts, mediation and conciliation are generally used because they provide the parties with flexibility in terms of process and outcome while still ensuring that the negotiations occur in a positive, structured and facilitated framework. In commercial contexts, arbitration and neutral evaluation are often used because they can provide the parties with a determination of the dispute that is factually and legally principled, but which is also private and more timely than if the parties went to court. Women, as legal personalities and citizens of society, can find themselves involved in any sort of legal dispute, and therefore all forms of ADR are relevant to women. Perhaps most commonly, however, women come into contact with facilitative ADR processes. For example, through involvement in family law disputes women will encounter family dispute resolution processes, such as mediation. In this chapter, therefore, the focus is on facilitative ADR processes and, particularly, issues for women in terms of their participation in such processes. The aim of this chapter is to provide legal practitioners with an understanding of issues for women in ADR to inform your approach to representing women clients in such processes, and to guide you in preparing women clients for their participation in ADR. The chapter begins with a consideration of the ways in which facilitative ADR processes are positive for women participants. Next, some of the disadvantages for women in ADR are explored. Finally, the chapter offers ways in which legal practitioners can effectively prepare women clients for participation in ADR. Before embarking on a discussion of issues for women in ADR, it is important to acknowledge that women’s experiences in these dispute resolution environments, whilst often sharing commonalities, are diverse and informed by a range of factors specific to each individual woman; for example, her race or socio-economic background. This discussion, therefore, addresses some common issues for women in ADR that are fundamentally gender based. It must be noted, however, that providing advice to women clients about participating in ADR processes requires legal practitioners to have a very good understanding of the client as an individual, and her particular needs and interests. Some sources of diversity are discussed in Chapters 13, 14 and 15.

Psychological predictors of injury in elite athletes

The Queensland Academy of Sport (QAS) supports over 600 high-level athletes across 20 sports. Given the high cost of injuries (e.g., time out of sport and consequent detraining, expense of rehabilitation, adverse social and economic effects), comprehensive injury management and prevention has become a priority for the QAS. Considering the potential for developing cost-effective, preventative programs, knowledge gained by examination of psychological screening predictors of injury may also prove beneficial for the broader sports medicine community. Aims were to: Objectively summarise existing injury characteristics, including the creation of population-specific norms for scholarship holders at the QAS. Assess relationships between injuries, specific medical factors (e.g., asthma, back pain) and psychological risk factors including life stress, mood, previous psychological diagnoses and disordered eating behaviour over a three-year period. Evaluate the effectiveness of the psychological component of the QAS Health Screening Questionnaire.

A time series analysis of presentations to Queensland health facilities for alcohol-related conditions, following the increase in 'alcopops' tax

Objective: In response to concerns about the health consequences of high-risk drinking by young people, the Australian Government increased the tax on pre-mixed alcoholic beverages ('alcopops') favoured by this demographic. We measured changes in admissions for alcohol-related harm to health throughout Queensland, before and after the tax increase in April 2008. Methods: We used data from the Queensland Trauma Register, Hospitals Admitted Patients Data Collection, and the Emergency Department Information System to calculate alcohol-related admission rates per 100,000 people, for 15 - 29 year-olds. We analysed data over 3 years (April 2006 - April 2009), using interrupted time-series analyses. This covered 2 years before, and 1 year after, the tax increase. We investigated both mental and behavioural consequences (via F10 codes), and intentional/unintentional injuries (S and T codes). Results: We fitted an auto-regressive integrated moving average (ARIMA) model, to test for any changes following the increased tax. There was no decrease in alcohol-related admissions in 15 - 29 year-olds. We found similar results for males and females, as well as definitions of alcohol-related harms that were narrow (F10 codes only) and broad (F10, S and T codes). Conclusions: The increased tax on 'alcopops' was not associated with any reduction in hospital admissions for alcohol-related harms in Queensland 15 - 29 year-olds.

“Privilege to Kill” phenomenon on developing countries’ roads : a preliminary case study of China

This study aims to examine the severe consequences of traffic crashes related to a special group of drivers in China, which is called the “Second Rich & Powerful Generation” (SRPG). The unique driving behaviors and attitudes of this special group are intertwined with the general cultural and social environment in China. To investigate the difference of traffic crash consequences between drivers who belong to SRPG and general driver population, injuries and fatalities in 2009, 2010, 2011 and 2012 were compared. Results consistently showed that while no significant difference was detected between these two groups in terms of injuries, fatalities per crash caused by SRPG were significantly larger than that caused by general driver population. Findings from our study clearly demonstrate the complexity of road safety issues in developing countries, and can also be used to develop road safety improvement strategies tailored to SRPG.

Profiling contextual factors which influence safety in heavy vehicle industries

A significant proportion of worker fatalities within Australia result from truck-related incidents. Truck drivers face a number of health and safety concerns. Safety culture, viewed here as the beliefs, attitudes and values shared by an organisation’s workers, which interact with their surrounding context to influence behaviour, may provide a valuable lens for exploring safety-related behaviours in heavy vehicle operations. To date no major research has examined safety culture within heavy vehicle industries. As safety culture provides a means to interpret experiences and generate behaviour, safety culture research should be conducted with an awareness of the context surrounding safety. The current research sought to examine previous health and safety research regarding heavy vehicle operations to profile contextual factors which influence health and safety. A review of 104 peer-reviewed papers was conducted. Findings of these papers were then thematically analysed. A number of behaviours and scenarios linked with crashes and non-crash injuries were identified, along with a selection of health outcomes. Contextual factors which were found to influence these outcomes were explored. These factors were found to originate from government departments, transport organisations, customers and the road and work environment. The identified factors may provide points of interaction, whereby culture may influence health and safety outcomes.