Trials + technology: some thoughts.. a recent medical trial experience

I recently sat in to watch several key portions of a well-publicised medical negligence trial, held in Perth in late 2011.

As with most such cases, each party called and relied upon leading expert medical witnesses, to comment on the quality of medical care and advice the patient received.  In this case, because of the type of case, such experts were neurosurgeons + neurologists.

One section of the trial involved questioning of a formidable expert called by the Defendant, a neurosurgical specialist who's evidence was conducted via video-link from overseas.  

Such expert, by my assessment, was generally a very knowledgeable and thoughtful witness, who's evidence was given in decisive terms + without hesitation.

An exception to this was a short segment of such expert's evidence, when asked a particularly curly question by the barrister representing the patient.  In contrast to the balance of the expert's evidence, the expert's answer to this question was given in, to my eye, a far less convincing manner.  There was a long pause before he answered, his body language when asked the question changed noticeably (he sat back from the table in front of him, folded his arms and generally adopted a defensive posture) and the tone of his answer when given was uncertain and hesitant...

Yet the transcript of such evidence, which is all that is kept, will demonstrate none of the above subtle, yet potentially key features of the evidence.  The literal words of the answer, which is all the trial judge will now have (other than his direct memory of the evidence + any notes he took), or which any appeal court may have access to, in the event of an appeal, will convey none of the subtle aspects to his evidence described above..

In this day and age, this seems to me to be unnecessary, both for the trial judge, but also any appellate court.  As stated, the expert's evidence was given by video link and software to record such video - or any 'live' evidence at trial is available at negligible cost (with navigation controls to allow speedy location of any given point etc)...  Why the entire course of evidence is not recorded both in terms of video + actual audio and accessible, as well as being transcribed is hard to understand.

Section 47A catches its last victims..

If I had to pick one legislative provision which has resulted in more gross unfairness than any other, over the period of my career, its a 'no-brainer:' section 47A of the Limitation Act 1935.

Section 47A in the context I have seen it most regularly, set a time limit for claims to be made against public hospitals, to a fixed period of 6 years (at most: it actually provides a 12 month limit, which can be extended up to this 6 limit).  When I say 'fixed' I mean fixed!  No matter how unfair such a time limit was, it could not be extended...

The most unfair application of this time limit I have seen arises in relation to obstetric negligence claims.  Section 47A means that any claim relating to negligence surrounding a child's birth, must be brought before the child's 6th birthday (if against a public hospital: entirely different, more generous limits apply re private hospitals/obstetricians).  If not, the child's potential right to claim is lost forever..  This is particularly unfair as it is commonly only around 6 years of age that parents will be told the likely long term outlook for their child.  They may have been reassured prior to this point, on the promise of hoped for improvement.  Further, if the child's family situation is unstable and no-one brings claim on their part, their claim is still lost, even though it is absurd to hold them responsible for a lack of action on the part of such parents etc..

Section 47A was repealed by the Limitation Act 2005 and so does not apply to any child born from November 2005 onwards.

In 2 test cases (Burns v Min for Health and Harrall v Min for Health: I argued the latter) heard by the Court in Nov/Dec 11, it was argued that when the 6 year time limit set by section 47A had not expired at the time the "new' Act came into force in Nov 05, such 'new' Act's provisions allowing extensions of time, when justice required it, should be permitted to apply, in scenarios such as I have described above.

Sadly, in such cases the Court has made clear that the 2005 legislation does only remove section 47A's application for children born after November 2005... both children in the Burns and Harrall cases cannot pursue claim against the hospital, no matter how negligent their care + [most importantly], no matter how good the reasons for their not taking action earlier.....

New Year: Exciting Times

With the new year, 2012 shapes up as a year of change and growth (modest) at JJLaw.

Our lease is up on our office space in April, so we face the prospect of possible new premises.. on the hunt!

More importantly, our team is to grow with the addition of Paul McBride, who starts with us at the end of the month. Once he starts I will post a bio for Paul, who comes to us with a background in nursing, professional golf and almost 2 years experience as a lawyer after his mature age degree..

This moves our legal professional staff total to 5, with Tanya, Pia and part-time superstar Sue and I being the others. Hopefully this means even better capacity to service our existing and prospective clients in 2012...