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Copyright Arnold Mann 2008

Member Australian Academy of Forensic Sciences Director The Surgical Unit, Canberra Hospitals, ACT Tutor in Clinical Surgery, University of Melbourne. International Visiting Professor of Surgery 1978
Copyright Arnold Mann 2008

HOW TO USE THIS BOOK
IF YOU ARE NOT A MEDICAL PRACTITIONER

When you meet an unfamiliar word, do not skip it, as
you will soon be lost. The link to the medical dictionary
is there for that reason. Use it! Spelling is English not
American. For example Hemoglobin [US] is given in its
original form as haemoglobin [UK and Australian].

Unlike texts on atomic physics, medical texts are largely
descriptive, and do not require from the reader much more
than a knowledge of terminology to be immediately
comprehensible even to the non medical reader. Thus:

“atrophy” means “wasting away”.
“cystoscopy” means looking inside the bladder.
“carcinoma” means a cancer growing on the lining of an
organ or the skin.
If the definition requires you look up a subsidiary word
look that up too. Then read on.

Copyright Arnold Mann 2008

CHAPTER 1
INTRODUCTION

On 13 December 1799, US President George Washington lay dying in his bed.
He faced the end with serenity, saying: "I die hard, but I am not afraid to go" and
subsequently: "I feel myself going." Then, doubtless addressing his physicians:
"I thank you for your attentions but I pray you to take no more trouble about me.
Let me go off quietly. I cannot last long."
On 12 December he had contracted laryngitis and quinsy after riding on
horseback in extremely cold weather. His physicians bled him heavily four times,
gave him gargles of molasses, vinegar and butter and blistered his neck with
cantharides. Not unexpectedly with what we now know, his strength faded and
he sank rapidly. After indicating how he wished to be buried, he died at 10 p.m.
on 14 December.
Today, such medical malpractice is inconceivable. If any person, whether
medically qualified or not, were to manage a patient in this way, a charge of
manslaughter or murder might very well follow. Only the gargles were not
directly and obviously harmful, although at best useless. Yet in the late 18th
century, with the limited and highly erroneous medical knowledge then available,
the deleterious treatment meted out to Washington was an adequate standard of
medical care.
The Hippocratic belief in an imbalance of the four humours (of which one was
blood) had led to this form of 'therapy'. In the view of the physicians, the patient
had an excess of 'sanguine humour'. Grotesque though this incident may seem
to us, it serves to highlight an important component of what constitutes an
inadequate standard of care, namely, that it must be what was considered
inadequate at the time. Hence, what was deemed satisfactory in 1920, is not
necessarily a guide to what is adequate in 1988.
But one does not need to go back even as far as this.
Case 1

Chapman versus Rix (1959)
In 1955 Mr Chapman, a butcher, nicked his abdomen when boning a rump of beef. A
doctor happened to be at Brendwood District Hospital (a cottage hospital with no resident
staff) when a telephone call was received there about the accident; at once he went to the
butcher's shop and saw a small wound which was not bleeding. Next he examined him
more thoroughly at the hospital and concluded that, though the deep fascia had been cut,
the wound had not penetrated the peritoneum; so the wound was stitched and dressed and

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the butcher sent home - with instructions to see his general practitioner that evening. His
GP did not appreciate that the doctor was not a casualty officer and accepted the patient's
statement that the wound was superficial - and diagnosed a digestive disorder.
The butcher died and post-mortem showed that the knife had penetrated the small
intestine. In an action by the widow, the judge found that the doctor had been negligent
in failing to communicate directly with the man's GP after he had dealt with him. This
judgment was, however, reversed by the Court of Appeal. The plaintiff's further appeal
to the House of Lords on whether the failure of the defendant to communicate was
negligent was also dismissed.
Comment It is unlikely today, almost 30 years on, that this would be regarded
in the same light by the courts. It is now a rule of surgery that all patients with
penetrating abdominal wounds, where there is the slightest risk that the inflicting
implement entered the peritoneal cavity, must at least be admitted to hospital for
observation. As an absolute minimum, the patient should have been warned to
return to hospital immediately if pain became generalised, or if he became very
ill.
One cannot know, without reading the evidence, what was put to the trial judge.
In my view, justice demanded a finding for the plaintiff even in 1959, because the
principle of treatment enunciated above was well known and ought to have been
applied.
Before considering the investigation of the more usual kinds of cases and how
they should be investigated, it is perhaps useful to consider two kinds which can
become the subject of legal contention: unnecessary investigation and
treatment; and cases without merit because they are frivolous, vexatious or
malicious.
UNNECESSARY INVESTIGATION AND TREATMENT

The human species reacts to illness by wanting to do something about it, even if
the disease is self-curing. A patient advised to have no treatment may feel that
the doctor is uncaring and seek the advice of another. Unnecessary and
inappropriate treatment of real or imagined illnesses has occurred in all cultures.
Moliere, Gustave Flaubert, Leo Tolstoy and Bernard Shaw have written novels
plays and short stories about this.
Where competition for patients exists, the treating doctor will most likely be more
successful than the one who is not as inclined to treat unnecessarily, since the
former seems to the patient, to be taking the symptoms complained of more
seriously and kindly – which may be the reverse of the truth.
Although largely equated in the popular press with inappropriate surgery,
unnecessary treatment is administered throughout the medical and paramedical

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spectrum. A great deal of the medicine practised in the pre-scientific era of
medical therapy falls into this category, and often caused a great deal of harm.
We consider here the causes of both unnecessary investigation and unnecessary
treatment.
Unnecessary Investigations

Whereas before the 19th century ended, special investigations (i.e. investigations
carried out with equipment other than the doctor's own clinical instruments) were
uncommon, today these investigations have added a new and important
dimension to diagnosis. In some specialties (e.g. urology) clinical examination of
the patient now plays a very small role, compared with special investigations
such as intravenous pyelography, cystoscopy, ultrasonography and
arteriography. As the degree of accuracy obtainable by means of special
investigations improves, medical practitioners rely on them increasingly.
The only part of diagnostic medicine which still rests almost exclusively in the
hands of attending physicians and surgeons is the taking of the clinical history,
the recording of what the patient complains of - his 'story'. Just as important is
how the patient tells that story, whether given to exaggerations or over-elaborate
descriptions, whether he is a patient who denies to himself the existence of
sinister symptoms and so on.
Cost of unnecessary investigations

Unnecessary investigations have featured prominently in cost analyses
undertaken by economists concerned with the burgeoning health bill. Allegations
have been made, at various times, that an unnecessary number of pathology
tests are ordered and the same thing applies particularly to ultrasonography and
radiology.
Risks of over-investigation

The taking of blood samples is rarely, if ever, attended by any serious
consequences for the patient. Similarly investigations such as
electrocardiography, electroencephalography, electromyography and
ultrasonography cause no physical harm to the patient at all. Simple radiological
investigations (e.g. chest X-rays), provided they are not repeated so often that a
significant dose of ionising radiation is delivered to the patient, similarly have not
been shown to be harmful. It is otherwise with what are described as 'invasive
investigations', and in particular, endoscopies which can cause serious harm.
They will be dealt with in later chapters.
Causes of over-investigation

1 Financial

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Where the referring doctor stands to gain financially by referring patients for
investigations, the reason for unnecessary investigations ordered may be
obvious.
It is frequently difficult for prosecuting authorities to establish their case as it is
difficult to prove in a particular instance that one or more investigations ordered
were truly unnecessary. Furthermore, the allegation of over-investigation can be
countered by the suggestion that other doctors are 'under investigating'.
The only way to abolish this cause of over-investigating in private practice is to
make sure that there is no financial connection between the doctor ordering the
investigation and the doctor or technician performing it. As private institutions
providing health care become progressively larger and more integrated (as in the
United States) this becomes unachievable.

2
Patient Pressure

Patients, particularly those who visit their doctor frequently, tend to gravitate
towards those who investigate 'thoroughly'. A patient who presents with a
common cold feels that his visit has been justified if the doctor orders a chest X-
ray and a blood test. He may feel that the doctor is 'fobbing him off' if, after
clinical examination, he has patted the patient on the back and told him to take
an aspirin or two if he has any pain associated with his dose of the 'flu. The
patient may feel that he could have done as much for himself and that, because
he felt it was serious enough to visit a doctor, the doctor should have responded
in similar vein. The patient may feel ignored if he does not get what he seeks -
sympathy and a bottle of medicine, so that he can play the sick role properly.
In medical systems where fee-for-service remuneration obtains, the doctor may
not wish to lose his patient to another and his tendency will be to play the
patient's game with him. This increases the costs of the medical service quite
dramatically, but only occasionally leads to serious consequences for the patient
(e.g. if the patient suffers perforation of an organ during an endoscopy - see later
chapters).
3.
Excessive Caution on the Part of Medical Practitioners
With increasing litigation for negligence undertaken by patients against medical practitioners, there is a natural tendency to practise 'defensive medicine'.
Copyright Arnold Mann 2008

Case 2

A middle aged patient was referred to a consultant with a complaint of vague abdominal
pain and constipation. A review of his history indicated that he was eating a diet almost
entirely deficient in fibre. He ate white bread, no cereals and very little in the way of
vegetables. The symptoms began after he spent a few days in bed with a very bad attack
of 'the flu'.
Two approaches can be adopted here. First, one can investigate this man with
blood tests, sigmoidoscopy, barium enema and even colonoscopy. But unless
there are other sinister symptoms, such as bleeding from the bowel or weight
loss, the consultant is justified in correcting the diet and reviewing the patient in
two weeks to see whether the symptoms have disappeared. It is, of course, not
impossible that the patient is harbouring a colonic polyp, or even a bowel cancer;
but it is doubtful whether, on the symptoms alone, and in the absence of any
findings on clinical examination, the investigations mentioned above need be
ordered as a routine in all such s. A reasonable course of action would be to see
the patient two weeks after correcting his diet and to investigate his colon if the
symptoms persisted. It could be different if there were a very strong family
history of bowel cancer.
Other doctors adopt the attitude that all patients should be colonoscoped every
two years once they reach the age of forty. The number of colonoscopists
required to undertake this precautionary program would be prodigious and would
have a major impact on the medical budget of any health service.
This example indicates how difficult it is to make a rational judgment concerning
what is necessary or unnecessary in the investigation of patients' symptoms. So
many factors, medical, social and financial, enter into the determination.
On the whole check-ups and many screening programs are over rated and not
cost effective. The same applies to some preventive medication such as
cholesterol lowering treatment 1.
Unnecessary Treatment

The factors leading to inappropriate and unnecessary treatment include those
mentioned above under unnecessary investigations.
Unnecessary treatment of course can arise from a number of additional factors.
Errors of Diagnosis
Obviously, if the diagnosis is wrong the treatment undertaken for the condition

1 Spence D British Medical Journal 12 Jan 2008 Volume 336 p 100.

Copyright Arnold Mann 2008

will, almost always be wrong. There are many examples however, where
treatment as a precautionary measure may still have been appropriate, even
though the diagnosis was wrong and treatment was, in retrospect, not required.
Case 3

A young lady aged eighteen presented to her medical practitioner with pain in the right
iliac fossa of 18 hours duration. The pain was sufficiently severe to 'double her up'. On
examination her temperature was normal but she was very tender in the right lower
quadrant of the abdomen and on rectal examination. As her periods were quite irregular
it was not possible to be sure whether she was suffering from ovarian bleeding and
operation was advised.
At operation a normal appendix was removed but some blood, emanating from a ruptured
ovarian follicle, was seen in the peritoneal cavity.
Mistaken diagnoses of right lower quadrant pain are common. Indeed, at the
time of writing, it may not be unacceptable practice for anything up to 15% of
appendices removed in any individual surgeon's practice to be normal. In these
cases, in retrospect, the operation has proved unnecessary, but was undertaken
to avoid missing the diagnosis of appendicitis.
An individual patient would rarely be able to prove that an appendicectomy,
technically well performed, was negligent by virtue of it having proved to be, in
retrospect, unnecessary (see also Chapter 11).
Case 4 MDU

A 17 year-old girl was admitted to hospital with symptoms and signs suggestive of acute
appendicitis. The senior house officer decided to observe her overnight. The following
morning she was examined by the surgical registrar who agreed with the diagnosis and
asked the senior house officer to operate. At operation the appendix was found to be
normal, but there was considerable enlargement of the mesenteric lymph nodes. The
appendix was removed and the wound closed.
One month later the patient's solicitors made a claim for damages for personal injury and
loss, alleging that the operation had been unnecessary. With assistance from the Union
(and from another defence organisation on behalf of the surgical registrar) the health
authority's solicitors countered with a firm denial of liability. Only a few weeks later the
patient's solicitors wrote to say that on the advice of their expert the claim was being
withdrawn as it had no basis and was without merit.

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Carelessness in Diagnosis
Where there has been carelessness in clinical or special investigation required before an operation is undertaken, there may be justification for an action for negligence. This of course depends on the circumstances of each case. Thus, a surgeon who performed a non-urgent removal of an appendix, without first determining, by appropriate investigation if necessary, that other diagnoses were not responsible, might find that an action for negligence would succeed. Obviously, operations on the brain, lungs and heart not preceded by appropriate special investigations would be clear cut negligence. However, I know of no instance of this kind. It is extremely unlikely that specialists working in these fields would undertake such major surgery without preliminary investigations. Operations for Financial Gain
Where fee-for-service remuneration for medical services exists, there will always be found a very small fraction of medical practitioners who unscrupulously exploit the system for financial reward. I knew of two general practitioners, each in solo practice, one of whom performed at least five knee meniscectomy operations per week and another who removed ten appendices a month. No solo general practice could possibly generate the need for this volume of that type of surgical operation if the indications were even reasonably strict. Persistent Medical Mythologies
Ancient man practised trepanning of the skull in the belief that a hole in the cranium might encourage evil spirits to quit the sufferer and allow him to recover. Among the general public and to a lesser extent among members of the medical profession, medical mythologies have a habit of remaining alive, long after their true nature has been exposed. A fictional version of this problem is contained in Bernard Shaw's The Doctor's Dilemma a play centering on an operation for the removal of a 'nuciform sac' - a non-existent organ. Shaw's play was written at a time when the toxic focus theory enjoyed great popularity in the medical profession. It persisted until well into the 1950s for I can recall discussions about this theory when I a medical student. Perhaps the most notorious example of surgery based on a mythical disease in the 20th century was the operation of colectomy popularised by the eminent London surgeon Sir Arbuthnot Lane, in the early part of the century. Operations were performed on constipated persons in the belief that their inability to evacuate faeces led to a debilitating toxicity which could be relieved by a partial colectomy, an operation not without morbidity and mortality. Strangely enough,
Copyright Arnold Mann 2008

partial colectomy for very severe constipation has in recent years re-emerged as
an operation, but only one of last resort.
The wholesale removal of teeth in the belief that hidden infection caused arthritis
was widely practised well into the second half of the 20th century. Wholesale
tonsillectomy in children was also rampant; the latter mythology is not yet quite
dead.
The answer to unnecessary or inappropriate investigation and treatment is
continuing medical education, peer review and audits.
PEER REVIEW AND CLINICAL AUDIT

Review of the results of treatment should be undertaken in all hospitals and
clinics. This enables obsolete and undesirable practices to be weeded out; to be
successful it needs a highly motivated staff. It is also time consuming.
Peer review has suffered a decline in recent years as it has become apparent
that proceedings of peer review committees are not privileged in a legal sense.
Hence Dr A critical of Dr B may find himself at the receiving end of a writ for
slander. Or alternatively, Dr B may find that statements made by him during
Peer Review meetings can be used as evidence against him. There is therefore
an understandable lack of enthusiasm among, in particular, procedural
specialists.
The lack of protective legislation facilitating the practice of Peer Review, despite
repeated representations made by both medical and legal bodies, is lamentable.
Even when well conducted, the results of such reviews are often inconclusive,
and, unfortunately, only rarely does action follow even when they are not. Again,
the absence of legal protection for administrations conducting investigations
inhibits them.
For example, a hospital that finds one of its surgeons consistently exceeding the
norm for uninflamed appendices removed at operation or having an excessive
mortality rate, may feel justified in withdrawing operating room privileges from
such a surgeon; yet this rarely happens. When it does, there is a flurry of
litigation almost immediately. That prospect discourages administrators.
Where pathology tests can confirm the need or otherwise for an operation,
clinical reviews can lead to action of the kind outlined above. However, in many
instances pathological confirmation of the necessity of an operation is not
available. Histological examination of removed uteri or gall bladders does not
always determine whether or not an operation was required. If the operation was
undertaken for cancer of the uterus, for example, (and no radiotherapy had been
given pre-operatively) there will be histological evidence of that cancer.

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However, where the indication for removal of the uterus was excessive bleeding, justification for the procedure rests on clinical grounds. Similarly, a gall bladder which may have contained stones at the time of its removal may show little or no evidence of inflammation in its walls. Unless the gallstones go to the pathologist with the specimen, the necessity for the operation may not be immediately confirmed by the pathologist. Hence it may also be difficult to prove that a cholecystectomy was not necessary. Finally, there are cases of acalculous cholecystitis (inflammation of the gall bladder without stones). If such a gall bladder is removed during a quiescent phase, again there may be very little pathological evidence available justifying the operation. All in all, peer reviews of this kind tend to lead to little action. Only removal of an incentive to over-treat can cure the problem of over-treatment. This can be achieved by restricting the numbers of doctors practising in each specialty in each location; or by abolishing fee-for-service medicine altogether. However, fee-for-service medicine is not the only cause of over-treatment. The desire for fame and glory can lead private and salaried practitioners down the same path. And removing clinical privileges from the incompetent requires a strongly hierarchical and administrative system supervised by excellent and wise clinicians. INFORMED CONSENT

This topic is a legal matter. The views expressed here are those of the author. It
is discussed because of the difficulties this concept presents in clinical practice.
Before embarking on the main problem it is perhaps pertinent to mention that
some surgeons are dissatisfied with the use of the words 'consent to operation'
and prefer 'request for operation' as this more closely describes what occurs and,
indeed, may have legal implications.
Explanation of the Procedure to the Patient

Needless to say, some explanation must be afforded to patients about the likely
result of their treatment. When major surgery is undertaken, it is always
preferable (most would say essential) to have written consent (or request) from
the patient, parent or guardian. This is not always possible in emergency
situations.
Failure to obtain informed consent can lead to problems.

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Case 5 MDU
A 36 year-old woman alleged that she had consented only to a biopsy and not to the
performance of a mastectomy. The surgeon reported to the Union that he had explained
both the nature and purpose of the operation, as the patient was worried about a lump in
her breast. He had told her that a mastectomy would be performed only if the lesion was
malignant. The patient had signed a consent form which read: 'biopsy of right breast
possibly proceeding to right radical mastectomy'. After operation the patient became
upset when she learnt that the breast had been removed. The surgeon explained the
reason for carrying out this operation. The consent form was not shown to the woman at
this time and when she was shown it later she asserted that the wording had been altered
after she had signed it. The member denied altering the form. The husband alleged that
the consultant had told him that the growth was non-malignant. Although histological
reports confirmed an intra-duct carcinoma, the patient issued a writ. The claimant's
solicitors requested the release of the original consent form so that it could be examined
by a handwriting expert. A copy of the expert's report was sent to the Union which stated
that the signature of the patient was genuine; there was no evidence of alteration or
addition to the details of the proposed operation; the handwriting was in all probability
that of the doctor who had signed the form confirming that he had explained to the patient
the nature and purpose of the proposed operation. Liability was denied and the claim was
not pursued.
The MDU report concluded:
The signing of a consent form should not in itself be regarded as an indication that the
patient is aware of the type of operation proposed. The most important aspect of any
consent procedure must be the explanation to the patient or relative of the nature and
purpose of the proposed operation.
Comment One would not dispute the above clear statement from the MDU.
But that is not the whole story. The first problem is one of communication. The
doctor must be able to speak to a patient in language and terms he can
understand. If the patient comes from another country, the problem may not be
overcome even with an interpreter.
Not all medical practitioners have good communication skills; some of the very
best surgeons lack this facility almost completely.
Next we have the problem as to how much should be told and how much
withheld.
Case 6

A 55-year-old man wanted to know the truth about his incurable lung tumour. When told
what he had requested, he wept for a prolonged period and became depressed. The
family accused the doctor of cruelty.

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Even patients not faced with such grim news often cannot come to grips with their condition, either because they cannot grasp simple biological concepts or because they prefer to 'leave it all to the doctor', or they just want to 'switch off'. Totally Informed Consent

What does totally informed consent involve?
Let us study the hypothetical example of a middle-aged woman, otherwise
healthy who suffers from mild obesity and severe episodes of pain due to
gallstones. She is advised to have an operation. It is explained to her that she
will be in hospital for something like 7 to 10 days during which time she will have
pre-operative tests (if not already done). She will be given an anaesthetic and
have the gall bladder removed, and possibly have the main bile duct explored.
Serious complications, she is told, are uncommon.
Is that enough? Or should she be given a detailed list of the possible
complications and how they may be treated. Here is an incomplete list of
possible major complications.
Wound Complications

1
Wound haematoma. This can lead on to (2). Wound infection with or without complication (1). This may require removal of stitches with outpouring of pus. Burst abdomen. In this complication the bowels (guts) may burst through the incision and lie in the patient's bed. It is rare today. Incisional hernia. This becomes noticeable some months after surgery. It requires further surgery to correct it.
Should patients be warned that scars will follow surgery, or are they expected to
know this? How far should warnings go?
Medical Complications

Any of the major medical disorders such as heart attacks, strokes, kidney failure
may occur after any operation, but when they do occur they tend to be more
commonly lethal in the post-operative period than when they are unattended by
an operation. But, the patient is informed, any of these are unlikely to occur in
her case.

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Chest infections are common after gall bladder surgery because it hurts to
cough. However, coughing is essential to keep the lungs from becoming
'plugged up'.
Major Surgical Complications

1 Subphrenic
abscess Infected fluids may accumulate around the liver and underneath the diaphragm. If this does not drain out of the drain tube which may be inserted, the patient will need an additional operation to drain the abscess. If this is not done, or the diagnosis is missed, there is a high risk of death. peritonitis If left undrained, bile leaks from bile ducts are lethal. Bile peritonitis is difficult to diagnose at times. Injury to the main bile ducts This is uncommon but when it happens it leads to years of incapacity and often multiple attempts to repair the stricture of the bile duct or to bypass it. 4 Pancreatitis Inflammation of the pancreas can occur after any abdominal operation, but a lethal form of it can follow exploration of the common bile duct, particularly if the bile duct sphincter is (deliberately) divided. and so on. The above list is by no means exhaustive. Is it reasonable to inflict this sort of grim scenario on a patient? I think not. It is a matter of striking a balance, and that is a matter of judgment. I do not see that the patient should be told of every remote possible complication. Most could not assimilate the information in any case. In the United States the doctrine of informed consent has gone a long way, and written details of every gory complication known are often therefore foisted into patients' hands. In my view, this is not good for the patient or his doctor. The reader is also referred to Sidaway versus The Board of Governors of Bethlehem Royal Hospital and the Maudsley Hospital and others (1984) and the comments of Mr Justice Skinner appended thereto at the end of Chapter 14. Loane Skene, professor of law writes on this topic as follows:
The similarity of this test to the test stated by the High Court of Australia in 1992 in the well publicised case of Rogers v Whitaker makes recent Australian experience relevant to the English scene, together with the efforts of professional bodies in each country to explain the law to doctors. In Rogers v Whitaker an ophthalmologist failed to mention the possibility of sympathetic ophthalmia, a rare but serious complication of eye surgery, despite the patient asking about possible harm to the non-operated "good" eye. This complication occurred and the patient became, in effect, blind. The high court, in finding 6-0 against the ophthalmologist, said it is part of the doctor's
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duty of care to disclose "material" risks. A risk is material, if: "in the circumstances of the particular case, a reasonable person in the patient's position, if warned of the risk, would be likely to attach significance to it or if the medical practitioner is, or should reasonably be aware that the particular patient, if warned of the risk, would be likely to attach significance to it. 2
Unfortunately this test has been interpreted in such a way as to make life very
difficult for medical practitioners.
INVESTIGATION OF THE PATIENT'S COMPLAINTS

Nothing can be worse for a plaintiff than to be dissatisfied with the result of
treatment, to engage in litigation and then to find that he has lost some tens of
thousands of dollars in legal costs into the bargain. The last straw is being
obliged to pay the costs of the defendant.
Hence it behooves lawyers and the doctors they engage to be as careful as
possible to avoid this scenario wherever possible and never to allow the thought
of the legal fees which can be secured to cloud the issue. This can be achieved
by meticulous attention to the preliminary investigation of all the case records;
the suggested steps below are one way of doing this.
The Complaint

It is vital to learn what the patient's complaints against the treating doctor or
hospital are. Very often this is little more than actual or perceived rudeness or
humiliating remarks -- hardly the stuff of litigation, but frequently the spark that
lights it!
Often the patient is unable to put his complaints into words; or he chooses as his
main complaint some aspect of his treatment which was satisfactory and does
not see another aspect which was poorly performed. Alternatively, his ire will be
directed at a doctor or other attendant who perhaps made a careless remark but
was quite guiltless of neglect. 'He spent his time chatting up the nurses' was a
complaint of a patient about a doctor who had looked after him well. The doctor's
alleged philandering (if it did occur) was hardly the patient's concern. At the
same time he had a genuine cause for complaint about the other doctors who he
thought 'were very nice'.
Then again, in a prolonged series of operations the patient may feel all his woes
began because the first operation was badly performed, when it was, let us say,
only the third operation about which he could claim negligence. Needless to say,
this tangle cannot be sorted out by the solicitor. That is the job of the medical or
surgical specialist. But it is just as important for the legal adviser to keep an

2 BMJ 2002; 324:39-41 ( 5 January Edition)

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open mind about which aspect of the treatment could be faulted, and then
perhaps deemed lacking in an adequate standard of care.
The Collection of Data

This is by far the most important aspect of a solicitor's duty to his client. The
collection of every scrap of information about the patient is vital. Conversations
as recalled, often years later, are of limited value, as memory plays tricks.
Moreover, what was allegedly said can be easily denied.
Hospital notes and doctors' notes are the greatest source of information in these
cases. The copies obtained must be of adequate quality -- that is, they must be
readable. Unfortunately, hospitals do not insist on the avoidance of blue ink pens
even though blue ink photocopies badly. Sometimes inspection of the original
must be arranged. At other times the material is incomplete as parts are
deliberately omitted as solicitors do not know what ought to be in them. Careful
scrutiny is needed.
Many hospitals are reluctant to divulge information, and the costly process of
issuing writs, which could often be avoided, must then be undertaken. Freedom
of Information Acts facilitate the collection of data from government hospitals, but
are of no use in obtaining information from private hospitals or from the private
notes of medical practitioners. The law should be reformed to enable patients to
gain access to their own records.
Next the solicitor must write to the treating doctor and hospital to determine what
occurred. The preliminary letter need not be too specific but should request
details of what happened; it may be appropriate to mention in this letter the
reason for the inquiry. The following questions would be appropriate:-
1
On which dates from . to . did Mr/Mrs X consult you? Is any further treatment required for the conditions treated?
Once a reply is received, a further letter can be sent if necessary.
The letter of request to an independent specialist

This must detail the patient's complaints concerning treatment. It should leave
open all aspects of care and allow the specialist to consider them all. All

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available data should be attached, and the letter should be accompanied by
written permission from the patient to examine his clinical records in any hospital
where he may have been treated and to report on his condition to the referring
solicitor. However, use of this permission is often denied by the hospital.
Moreover, doctors are (wisely) often reluctant to put themselves in such a
potentially adversarial position vis-a-vis the hospitals.
In my view, the solicitor ought not to ask the specialist whether there was
negligence; that is a matter for the determination of the Courts. The doctor
should be asked whether or not he believes the standard of care was adequate.
My practice is to read the material forwarded. If on the face of it I can see no
cause for questioning the patient's care, I inform the solicitor of this fact and a
modest account is forwarded. If there seems to be a prima facie case, the author
proceeds with the matter in the detail required. Proper investigation in some
cases can take many hours of work and can be a very expensive exercise; it is
not uncommon for the report to run to 20 or more pages. Specialists should
therefore forward an estimate of costs which it is anticipated the report will take
to prepare. In some instances, the patient does not need to be interviewed; but
in most cases this is necessary if the matter proceeds to Court.
All aspects of the patient's history must be searched out thoroughly and details of
the hospital record carefully scanned. It is clinical detective work requiring
constant referral back and forth for confirming evidence. Often the patient must
be called back for further information several times.
Once that is done, the specialist must carefully sum up his views on whether the
standard of care was adequate, and if inadequate, in which respects.
At all costs the specialist must avoid being judge and jury. He must be
scrupulous in being detached and fair. Where there are arguments which could
be advanced by the party to the dispute which has not sought his opinion, he
should state them. It is the lack of such independent assessments which often
leads to tragic failure in court proceedings.
The Independent Specialist's Medical Report

This is the vital link in litigation in most instances. Some cases speak for
themselves and medical testimony is not required, but these are a small minority.
The specialist should detail the ways in which the standard of care was
inadequate; what should have been done (or not done), what flowed from the
inadequacy, what the patient suffered and mention any permanent residual loss.

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UNJUSTIFIED AND TRIVIAL COMPLAINTS

Something like 80 to 90% of complaints made by patients against doctors are
without significant substance, or they lapse. Most never reach the offices of
solicitors.
From data made available through the Report of the Pearson Royal Commission
on Civil Liability and Compensation for Personal Injury (1978 UK), the medical
defence bodies have calculated the outcome of medico-legal cases involving
complaints against doctors and dentists in the United Kingdom.
From an analysis of 500 cases (1974-75), the following features emerged:
Claims abandoned

These figures give an indication of what occurs.
Many unmeritorious claims waste an enormous amount of time and money for all
concerned, as well as being a great strain on the medical practitioner against
whom allegations are made. They should be avoided if at all possible.
Throughout the book examples of unjustified or unwise litigation and complaints
will be given. Most of these arise from a lack of understanding on the part of the
solicitor or his client; other case result from poor medical advice to solicitors.
This chapter ends with examples of two special classes of cases. First, those in
which bereaved relatives lodge understandable but unjustified complaints; and
second, those which are frivolous, vexatious, malicious, scandalous, or a
combination of these.
Bereavement

It is only in recent years that the psychopathology of bereavement has received
much attention. An enormous number of factors affect grieving persons; these
include guilt feelings even when they were not in the least responsible for the
death of their relative. Sometimes feelings of aggression, pronounced when the
bereaved person feels partly responsible for the death (e.g. 'I should not have
left the child unattended') are re-directed towards the treating doctor. At other
times, the loss of a young breadwinner in circumstances where no compensation

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is payable may trigger litigation, a sympathetic solicitor endeavouring to 'get
something' for a young widow is a typical example.
Case 7 MDU

Bereaved relatives frequently blame the doctor for the loss of a loved one, but such
reactions are often misplaced. A general practitioner was assisted with his reply to a
complaint that he had inadequately cared for a woman who had died of a coronary
thrombosis within a day of the onset of symptoms. The relatives accused him of delay, of
giving insufficient analgesia, of being rude, and of refusing to obtain a second opinion
(when in fact he had discussed the case and two ECGs with a specialist colleague). The
family had first sent their version of events to the Medical Council 'purely for
information' but subsequently sought an investigation of the doctor's conduct. His
explanation was supported by the notes which showed that his actions had been perfectly
correct. It was accepted by the Medical Council and there was no disciplinary hearing.
Case 8 MDU

A 16 year-old girl died while on holiday in an eastern European country. The cause of
death was unknown: a possible clinical diagnosis was the Waterhouse-Friderichsen
syndrome but the autopsy finding was said to be 'myocarditis fibroplastica chronica'.
When her father returned home he lodged a complaint with the executive council
claiming negligence on the part of the general practitioner who had failed:
'to watch and follow up the previously reported illnesses then one may conjecture that the heart defect could have been stopped before it arose by treating the illness which gradually caused the heart enlargement and development of fatal myocarditis.' To assist the father in the pursuit of his complaint the general practitioner against whom the complaint was made handed over his entire notes to the father. The complainant's member of Parliament proceeded through diplomatic channels to secure a copy of the autopsy report. The general practitioner agreed to the investigation of the complaint although it was outside the regulation time limit. The last occasion on which the doctor had seen the child was 5 March. She died on 1 August and the complaint was made on 21 October - more than seven months after the date of the last consultation. The history started with a chest infection when the patient was 12 years old and a systolic murmur was noted but investigation in hospital revealed no cardiac abnormality. Two years later she had an operation for appendicitis from which she made an uneventful recovery and no abnormal heart sounds were noted on that occasion. A year before her death the school medical officer informed the child's mother that there was a systolic murmur which was not considered to be of any significance. [Many such murmurs are innocent AM]. The general practitioner referred the patient to a cardiologist who felt that no action was necessary but that the position should be reviewed in a year's time. There was no suggestion of restriction of physical activity. The following March the
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patient came to the surgery complaining of vague aches and pains but no physical
abnormality was found on examination and she was not seen again.
An oral hearing was held by the medical service committee and the complaint was
dismissed. The father appealed to the Secretary of State who ordered a further oral
hearing. Shortly before the date of the hearing the appeal was withdrawn.
The parents' feelings were understandable but the intensity with which the father attacked
the general practitioner was vindictive. After the finding of the service committee the
general practitioner received a letter from the child's father which amounted to an
ultimatum; he held the doctor responsible for safeguarding the health of his family and
added that should his wife die he would report the matter to the coroner.
The member informed the complainant's wife that he could no longer continue as their
family doctor and was surprised to receive her reply in which she expressed disagreement
with her husband's attitude.
This complaint illustrates the dismay which doctors feel when wrongly accused of
negligence in their handling of a patient. In this, as in so many others investigated by
service committees, the doctor had given every care and attention to his young patient.
The vindictive attitude of the child's father played on the doctor's mind to such an extent
that his concentration on everyday affairs became distracted. Shortly after receiving
another of many letters from the executive council he was involved in a road accident in
which his car was extensively damaged and he narrowly escaped serious injury.

Case 9 MDU

It is understandable that people recently bereaved should recall incidents leading up to
the death of their relative and interpret them as warning signs which a doctor should have
detected and done something about. In a complaint to the Medical and Dental Council a
70 year-old widow, whose husband had died from coronary thrombosis, alleged that he
should have been admitted to hospital sooner and accused the member of 'flagrant
negligence'.
The patient had suffered from chronic bronchitis and emphysema for many years. Two
weeks before his death he attended the surgery and was treated for bronchitis by
antibiotics. He was told to stay away from work but he refused to do so. Before his next
visit a few days later his wife telephoned to express her anxiety about him. When he was
seen again there was no sign of respiratory or cardiac failure. This time he took advice to
stop work. Ten days later his bronchitis was better but for the first time his feet were
swollen. The member carried out a full examination, found no abnormality and
prescribed Lasix and Slow-K and told him to remain in bed. Next day his wife
telephoned to say that her husband was distressed and blue. The member arranged an
ambulance immediately and telephoned the hospital to alert the casualty officer, but the
patient was found to be dead on arrival. A detailed explanation of all that the member
had done for the patient was prepared for the Medical Council. This was accepted and
the complaint was dismissed.

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Comment I am unsure whether an ECG had been ordered. That patient might
have had a silent myocardial infarct at the time he developed heart failure.
Admission to a coronary care unit might have been indicated if this were the
case.

Frivolous, Vexatious, Malicious and Scandalous

A very few patients make complaints which are in this category but they can
cause an immense amount of trouble.
Case 10 MDU
In 1975 a biochemist attended a consultant radiotherapist complaining of a 'rodent ulcer'
situated near the right inner canthus [angle of the eye AM]. She had been treating it
herself with an anti-cancer cream that she had developed; nevertheless it had grown
larger. When a biopsy was performed the pathologist reported 'incompletely excised
solid type of basal cell carcinoma' [this is the usual report after a biopsy - which removes
only a small fragment of the tumour AM]. Treatment was started and during
radiotherapy the patient was protected by a specially made lead mask and by lead shields
under the eyelids. Three months later, after failing her second follow-up appointment,
she wrote to the member complaining of blurred vision in her right eye and weakness in
her legs. She was advised to attend for a check up but failed to do so. She then tried
unsuccessfully to pursue her grievance through the Health Service Commissioner and
wrote a long statement of complaint to the hospital.
A writ was served in 1978 naming the member as first defendant. The Union's expert
advised that there had been no negligence and said that the plaintiff's symptoms could not
be related to the treatment. The patient changed her lawyers several times during the next
three years and the ended in 1981 when the Union's solicitors succeeded in having the
action struck out.
Case 11 MDU
A consultant Ear Nose and Throat surgeon was asked to advise a young man who had
been discharged from the Army on medical grounds after only four months service. The
reason given for discharge was that the young soldier was suffering from 'severe bilateral
neural hearing loss', though this was not known to our member at the time of first
consultation.
The young man was seen four times over a period of one month and on each occasion an
audiogram was taken. These showed either normal or above normal hearing in both ears,
and our member was happy, at the family's request, to present his opinion to the Army
authorities. He was understandably cross when shown a letter from a government
minister to the young man's MP which said: 'Might I suggest that Mr X would have been
well advised to carry out an audiogram on the soldier prior to his comments in this .'

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The Union advised the member against an action for defamation but suggested the terms
of a reply, pointing out to the minister that he had been wrongly advised on the facts: that
copies of the audiograms taken prior to the letter to the Army authorities were enclosed;
and that it was important to relieve the young man of an inaccurate 'label' which would
affect his future employment and insurance prospects.
Several months later, and after the Prime Minister had called for a full report from the
Ministry of Defence, the young man was allowed to continue his military career: but the
minister did not see fit to apologise, merely putting the blame on the conflicting medical
opinion.
Case 12 MDU

A senior house officer in accident and emergency wrote to say that a patient's solicitors
had accused her of failing to diagnose a fracture of the base of the fifth metatarsal bone.
She had made the diagnosis, as the notes and X-rays clearly demonstrated, and had
arranged for a crepe bandage to be applied. She was sent a reassuring letter and was told
that the Union would contact the regional solicitor on her behalf.
Comment The slightest inquiry by this patient's legal advisers would have
determined that even if the diagnosis had not been made, there was no active
treatment other than that given. A sillier claim is hard to imagine.
Case 13 MDU

A frail 75 year-old lady was admitted to a private clinic for cataract extraction. She was seen pre-
operatively by a specialist anaesthetist, who found her fit for general anaesthesia. The operation
and anaesthetic were uneventful, and the patient made no complaints while in hospital.
The anaesthetist submitted his professional fee and was surprised to receive a letter alleging that
he had dislocated her jaw during the anaesthetic. The patient complained that her jaw was still
painful and that it was difficult for her to eat. She said that another doctor had manipulated her
jaw back into position. As the medical fund to which she contributed would pay only part of her
medical costs, she asked the anaesthetist to contribute the remaining sum. The doctor consulted
the Union's lawyers, who replied to the complainant on his behalf. He was quite prepared to
reduce his fee on an ex gratia basis and with no admission of liability. This proposal was put to
the patient, who replied that she had now received [a small sum AM] from the medical fund, and
did not wish to quibble about it. She later paid the specialist fees in full, and accepted, as was the
case, that no dislocation had occurred under the general anaesthetic.
Case 14 MDU

The member, an orthopaedic surgeon, admitted a child with a six week history of knee
pain following a softball injury. The general practitioner had prescribed antibiotics
initially, but then the parents had sought the help of a local chiropractor. The clinical
picture was consistent with septic arthritis, although culture of the aspirate revealed no
organism. Cloxacillin was commenced and the fever settled. A rash developed on the
eighth day, and the antibiotics were stopped two days later. After initial traction a plaster
was applied on the ninth day and removed after two weeks. The parents refused to settle

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the bill, and counterclaimed for presumed drug allergy and the skin damage from the
plaster being 'ripped off'. The patient was obliged to attend court where the magistrate
commented that there was no merit in his claim. The member recovered his account and
was awarded an unusually high contribution to his costs.
Comment This is a typical nonsense complaint.

Case 15 MDU

In 1972 a 50 year-old man with a long history of gastric ulcer underwent gastroscopy.
He was sedated and the surgeon carried out the examination using a flexible fibre-optic
instrument. The patient afterwards instituted an action for negligence alleging that his
neck and shoulder muscles had been damaged during the investigation. He claimed to be
in constant pain which was unrelieved by treatment. As a result he had been prematurely
retired from the police force. The surgeon could recall no difficulty during the
gastroscopy nor did the nursing and clinical notes record that the man had complained in
hospital. The Union advised the hospital authority to deny liability. The action was
discontinued, each party being responsible for its own costs.
Comment It is exceedingly unlikely that the wry neck was caused by the
examination. Again, simple telephone inquiry by the solicitor could have aborted
this claim before it began.

Case 16 MDU

A member of the Union's medical secretariat was summoned from a lecture to medical
students at a London teaching hospital to be interviewed by a chief inspector of police. A
patient had alleged in a letter to the Commissioner of Metropolitan Police that the doctor
was 'a man of extreme depravity' and was planning to murder her. The chief inspector
accepted the explanation that the doctor had merely assisted a member of the Union who
had treated the patient in the past and had written to the patient requesting her to desist
from writing to the member.
Case 17 MDU

A 79 year-old immigrant alleged that a practitioner had provided her with the wrong
prescription for spectacles. After she consulted another ophthalmologist she complained
to the Medical Council that her first prescription was wrong because she could now read,
drive and watch television without difficulty. In fact the two prescriptions were almost
identical. The member was assisted in putting forward this explanation which was
accepted by the Medical Council.
Case 18 MDU

A middle-aged patient needed a series of blood transfusions following a gynaecological
operation. Several days afterwards she was making satisfactory progress but complained

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of bruising of the left arm. Within a week the arm had improved with physiotherapy.
Four months later an orthopaedic surgeon examined her arm under anaesthesia and found
limited extension of the elbow; flexion and rotation of the forearm were normal. The
patient started legal proceedings alleging negligent treatment and six years later the case
came before the High Court. After such a long period the doctors had difficulty in
recalling details. The doctor most concerned as a defendant was accused of negligence in
introducing the intravenous catheter, but it was shown that not only was he competent but
also that he had special experience in blood transfusion and intravenous work. When the
question of costs was raised, counsel for the plaintiff informed the judge that his client
was not legally aided. Moreover, the patient stated than an administrator in the hospital
had expressed the opinion that she would be successful in her claim and advised her to
bring proceedings against the health authority. The judge found in favour of the
defendants and awarded costs.
Comment Once again simple inquiry by the solicitor would have averted this
absurd claim.
Case 19 MDU

An 11 month old girl who had crushed her right little finger in a door was brought by her
parents to casualty. The registrar in plastic surgery found a circumferential skin
laceration with the finger bent at the proximal interphalangeal joint. After discussion
with the senior registrar the child was admitted for surgery that night. The paediatric
house surgeon explained to the parents that exploration was necessary before the
appropriate surgery could be decided on and the father signed a consent form agreeing to
this. Amputation was not mentioned. The surgeon was experienced in digital
replantation using an operating microscope. He found that the bone and all the vessels
had been divided and that the tissue damage was too severe for microvascular
anastomosis. It was clear that amputation of the end of the devitalised finger was
indicated. The consent form was checked, but unfortunately the parents had gone home.
The surgeon had to decide whether to keep the child anaesthetised while an attempt was
made to contact the parents, to leave the finger attached with the risk of sepsis and an
operation later on, or to proceed with the amputation. He decided to amputate. Next day
the surgeon was told that the father and grandfather had created a disturbance in the
hospital. When he attempted to speak to them, they refused to listen and said that they
would be commencing legal proceedings for assault. He was able to speak to the mother
and made arrangements for follow-up treatment.
There have been no legal sequelae, possibly because the relatives were advised that there
was no case for the surgeon to answer in that he had acted in the child's best interests.
Comment The above is included under this heading for the sheer rancour
involved. One wonders whether the most vociferous party had reason to feel
guilty about the injury.

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Case 20 MDU

An octogenarian acting in person sued a health authority, its solicitors and a registrar,
alleging negligence in failing to treat a fracture following a road traffic accident seven
years previously. The injury consisted of an undisplaced fracture of the neck of the fibula
which required no active treatment, yet the plaintiff pursued his claim to trial in the
Queen's Bench Division of the High Court. When invited by the judge to begin the case
the plaintiff requested an adjournment of the trial. Fully aware of the protracted
proceedings which had already taken place, the judge refused an adjournment,
whereupon the plaintiff loudly declared that there was no justice in this country and that
he intended to appeal to the House of Lords. The judge dismissed the case and the
audience departed from the court a little disappointed that the entertainment had ended so
abruptly.
Entertainment there might have been, but the three defendants were put to considerable
expense and inconvenience to defend themselves against an unjustified claim.
Case 21 MDU

A patient complained to the South African Medical and Dental Council that he had not
been told the nature of an operation which he underwent two and a half years previously.
The operation was on his right testicle and he had been informed by the surgeon that
there was a risk of malignancy. He said it had not been successful and that further
surgery was required, but that his medical advisers had been unable to obtain a report
from the surgeon who, he claimed, had denied performing the operation. The surgeon's
answer was that he had performed an orchidectomy for an undescended testicle, and at
the same time had removed the appendix, writing to the patient's doctor accordingly. The
report recently requested by the patient's new doctor had been provided after initial delay
because the records had been mislaid. He had never denied that he had performed the
operation, and it was contrary to his practice to tell a patient that he was suffering from a
potentially malignant condition, though he would have explained the risks of malignancy
to the relatives. The member was assisted by the Union's legal representatives in Pretoria
and the complaint was dismissed. Subsequently the patient claimed damages for
negligence on the grounds that the member had carried out a different operation from that
to which he had consented. This was repudiated and the claim was dropped.
Case 22 MDU

Three years ago a retired surgeon was visited at his home by a patient on whom he had
operated for bilateral inguinal hernia 26 years previously. The patient complained that he
had suffered from sexual dysfunction ever since. The member suggested that he should
see his general practitioner. For a long time nothing further was heard, then the patient
visited the member and threatened legal action. None has been forthcoming but the
member has been assured of support in the event of proceedings. Comment The cuckoo
had obviously not yet flown over the nest.

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Case 23 MDU

A retired physician forwarded a writ which had been handed to him the previous day. He
was the sole defendant but suggested to the Union that there might be some old
information on the case because in 1968 the plaintiff's mother (acting in person) sued her
general practitioner. The patient had come of age and was now also acting in person. He
alleged ‘loss of use of 99.9% of my right arm, the shortening and permanent weakening
of my right leg and permanent weakening of my right foot. In addition, I claim damages
for needless suffering I endured through the course of my neglect by the defendant’. The
Union's solicitors lodged a summons with the district registry seeking an order that the
statement of claim in the action be set aside on the grounds that it disclosed no reasonable
cause of action, was scandalous, frivolous, vexatious and an abuse of the court. While
this was proceeding the member received a telephone call from a journalist working on a
national newspaper to which the plaintiff had written alleging that details of his past
medical history were being revealed in clues to the crossword! The plaintiff then
approached the Union's solicitors wanting to discontinue the action but since he was
going about it the wrong way this would have been ineffective. The solicitors were
authorised to advise him on procedure, and so to everyone's relief, the claim was properly
withdrawn.
Case 24 MDU

An ophthalmologist received a summons issued by a patient who had been kept waiting
for 39 minutes and the member sought advice from the local legal agent who had never
encountered such a frivolous and vexatious claim. Only a small sum was involved but an
expedient settlement was rejected, both on the facts of the case and the undesirability of
setting a precedent. The member did not recollect exactly what delayed him on the
morning in question but his diary showed a full day with hospital rounds prior to surgery
consultations. An attempt was made to have the case struck out on account of its
triviality but this failed and it came before a judge in the small claims court. It was
quickly established that the plaintiff was salaried and had suffered no loss due to his
delayed appointment. On this basis the judge had little alternative but to dismiss the
claim. He surprisingly, said that he would consider claims like this if actual loss or
damage could be proved because an appointment was in the nature of a contract. To
guard against further difficulties the member was advised to inform all his patients that
although every effort would be made to be punctual, appointment times could not be
guaranteed and were tentative in nature, being subject to the overall needs of patients.
Comment It is a little difficult to understand that the letter of the law can be read
in such an impractical way. Perhaps the judge had been kept waiting by a
medical practitioner!

Case 25 MDU

A female patient attended an ophthalmic department with bilateral pterygia [tissue that
grows over the eye from the inner angle AM]. The right pterygium was removed in 1973

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and the left in 1977, both under local anaesthesia. In 1978 the consultant wrote to her
general practitioner 'I saw her myself.and spent a long time examining her, but was
quite unable to find any organic abnormality to account for her symptoms which are
numerous and constantly changing.’ The patient consulted solicitors, who wrote to the
hospital '.during the said operation a very small hole was drilled in our client's left eye.
This hole is in the innermost corner of the eye and after the operation is performed the
hole should be left uncovered.this is to allow substance to escape from the eye.
However, when the eye was stitched after the said operation a piece of skin from the nose
was attached to the skin of the eye and the said hole was covered. As the substance
cannot escape from the eye it seeps underneath into the cheek and.is causing the
swelling on our client's face.’ After consultation the hospital solicitors replied firmly
denying liability and no more has been heard of the threatened claim.
Comment The statements made in the solicitor's letter are undiluted drivel. Peer
review among lawyers ought also to be considered.
Case 26 MDU

In 1977 a 31-year-old woman consulted an ophthalmologist for contact lenses.
Examination disclosed high myopia in both eyes with astigmatism but there was no
contra-indication to lenses. Hard lenses were recommended but the patient preferred soft
ones. At a check-up the woman said that she was having difficulty doing close work, and
the member advised her about this. At the final examination she said that she was
satisfied with the vision for both reading and distance, and paid her account.
Two months later she reported that the lenses were unsatisfactory and asked for them to
be altered. The member explained that to alter the lenses even slightly would reduce the
sharpness of distant vision; this was confirmed by the manufacturers.
The woman complained to the Medical and Dental Council that the lenses had caused
deterioration in her vision and had been prescribed incorrectly. She also claimed that the
purchase price should be refunded. The member was assisted by the Union's solicitors
and the Council dismissed the complaint.
Case 27 MDU

In 1982 a GP member furnished a report about one of his patients to a reputable firm of
solicitors who had requested details of the woman's medical history with a view to taking
proceedings for alleged unfair dismissal. The solicitors had provided a copy of the
patient's formal signed consent to disclose the information. Several months later the
patient wrote to the GP requesting details of the drugs he had prescribed for her on 34
different occasions. The member contacted the Union and was advised to ask his patient
why she required the information. The member heard no more until nearly 18 months
later when he received another letter from the lady which included the following
sentence: 'I hereby give you notice that unless you admit liability within 7 days or advise
me of your proposal how to settle my claim then I will issue proceedings for breach of

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confidence to recover damages.' Shortly afterwards he received a writ and statement of claim, issued by the patient and not by solicitors on her behalf, in which damages were claimed for 'having disclosed highly confidential information from my records to (her solicitors). I consider this to be a breach of confidence'. The Union's solicitors were instructed to accept service of the writ on behalf of the member. When the claim came to court it was dismissed on the grounds that it disclosed no reasonable cause of action, was frivolous, vexatious and an abuse of the court. The patient was not to be deterred and lodged a notice of appeal. This also was dismissed. Undaunted by this rebuff, the lady applied for leave to appeal to the Court of Appeal directly. The Court of Appeal dismissed the application and the patient wrote two letters to the Court of Appeal claiming that she did not need leave to appeal. She was told by the Registrar that leave was required and to date no more has been heard from this very determined litigant. ************************************************************************

Source: http://www.malpracticeadvice.com.au/site/DefaultSite/filesystem/documents/PDF's/Chapter01.pdf