The worst workcover claim we have ever heard of – a lawyer who lied, a doctor who made a mistake and an injured worker crippled for life

worst-workcover-claim

Having just read your article – One of the worst workcover claim handling we have heard of– I felt compelled to share my story…


I am [in my late thirties]. My injury occurred [just over five years ago], Lifting, nothing heavy, quite innocuous in fact.

I presented to my doctor with pain radiating from one hip, across my lower back, to my other hip. I was informed I had nothing more than a muscle strain in my back. I was prescribed bed rest and anti-inflammatories. When this provided no relief, I was then referred for an X-ray of my lumbar spine, which indicated one ‘slight’ disc bulge. I asked about my hips, and was informed that the bulge was the source of my pain, and my hip pain was referred (MY HIPS WERE NOT INVESTIGATED) from my spine. My doctor refused to investigate further, or alter my treatment (bed rest / NSAID’s), so I changed doctor.

My new doctor referred me for a CT scan, which subsequently found a second ‘slight’ disc bulge. I asked my doctor about my hips. He indicated my spine was the problem, and that my hip pain was referred from my spine (MY HIPS WERE NOT INVESTIGATED). My new doctor referred me for physio, without success. My new doctor prescribed me every narcotic available, at the strongest doses available, without success (My body does not appear to be able to metabolise narcotics the way ‘normal’ people do…I get no pain relief, only the side effects). My new doctor then referred me to a pain clinic for spinal injections so as to try to ascertain the true source of my pain. I underwent two series of injections, medial branch block, then sacroilliac block, without success. In hindsight, this should have been the moment my doctor realised there was nothing wrong with my spine, instead I was referred to a neurosurgeon. The neurosurgeon indicated i was the perfect candidate for surgery, and as such, my case was fast tracked. I asked about my hips, to which I was told, once again, that my hip pain was referred from my spine (MY HIPS WERE NOT INVESTIGATED) As soon as my surgery was authorised by my Workcover provider, my solicitor was able to fast track a lump sum settlement. I was stronlgy advised to accept the settlement offer. I asked my solicitor “what about my hips” to which I was told “at this moment there is no evidence to support a claim for your hips (CORRECT, AS MY HIPS HAD NEVER BEEN INVESTIGATED), but if at any time in the future, if my hips were investigated, and problems were identified, then a second claim could be drafted”. I accepted what my solicitor told me, and as such, accepted the settlement…BIG MISTAKE.

I underwent a double laminectomy with L4/L5 artificial disc replacement and L5/S1 anterior lumbar interbody fusion. At my post operative review I indicated to the neurosurgeon that my symptoms remained. He referred me for bi-lateral hip MRI, and also referred me to an orthopaedic surgeon.

The hip scans indicated various issues (torn labrum, significant cartilage degeneration, sub-cortical cysts, cam lesions). My ortho requested a hip arthroscopy, which my workcover provider denied. After a protracted battle with my Workcover provider, I ended up going to concilliation where I indicated my hips were part of my original claim (re: injury report on day of injury), they had accepted my claim, amd as such they should honour my claim. They indicated they wanted me to attend an independant review before they would accept my hips.

At the independant review, the surgeon indicated he was ‘HORRIFIED’ that I had undergone spinal surgery in the first place. He was ‘DEEPLY DISTURBED’ at the way my surgery had been performed. He asked me who my neurosurgeon was, and indicated that in his opinion my neurosurgeon was a ‘COWBOY’ who had ‘JUMPED THE GUN’. He indicated to me that in his opinion, he had grave concerns that I ever had a spinal condition at all, he was of the opinion that my hips had been the problem, not my back He recommended that I undergo bi-lateral hip arthroscopies straight away, and undergo bi-lateral hip replacement long term.. He reported as such to my Workcover provider, who then formally accepted my hips.

I proceeded to contact my doctor to inform him of what had happened, his response…’SORRY, I MADE A MISTAKE’. He also indicated to me that, in his opinion, I will probably never work again. I contacted my solicitor to inform him of the latest events to which I was told the claim was settled, there will be no claim for my hips, see you later. I tried to contact my neurosurgeon without success, it appears that it is OK for him to cut me open, but not for him to acknowledge my existence post operatively…especially when it appears he operated on me needlessly. I ended up emailing his office, outlining what had happened, but I received no response.

I subsequently underwent bi-lateral hip arthroscopies, but my symptoms still remained. Whilst undergoing rehab for my last arthroscopy, my physio indicated that maybe i had a problem from my spinal surgery, and as such, she suggested I get some scans done. These indicated that the fusion component had failed. This meant that not only was my spine classified as being unstable, but that my doctor (the one who made ‘the mistake’), would not medically clear me to begin any retraining / return to work program without further spinal surgery. I contacted my ortho and begged him to reverse the failed fusion, and replace it with another artificial disc, this way there would be no risk of another fusion failing. He indicated to me that I would not find a surgeon willing to perform such a procedure (too dangerous), but instead he would be willing to perform a posterior fusion(s) / decompression in order to stabliise the spine.

[A few weeks] ago I underwent this procedure.

I now have two discs removed, artificial disc replacement, plates, rods, screws, three fusions…bi-lateral hip arthroscopies…constant pain…surgical nerve damage…loss of natural movement…high statistical probability I will never return to gainful employment…a doctor who has admitted he made a mistake…a neurosurgeon who won’t acknowledge my existence…a solicitor who lied to me.

I have contacted numerous other law firms who have all indicated that because my case falls under workcover, they will not touch me as I would have to repay my Workcover monies if successful for malpractice, so my doctor / neurosurgeon get to walk away, no questions asked, to continue to practice, to possibly make more mistakes and ruin people’s lives. I have spoken with my member of parliament, WorkSafe, state and federal AMA. I have contacted every media outlet I can think of (television / radio / print) without response…no-one cares.

I understand, and accept, that when you sign on to Workcover you sign away your right to sue your employer for common law damages…but I never would have thought that the Workcover system, the law, would shield doctors against accountability for gross negligence.

Their mistakes can’t be undone. Their mistakes destroy lives.

I would just like to say that I do not expect perfection, we are all people, we are all fallible, we all make mistakes. What angers me is not the fact that my doctor / neurosurgeon made a mistake, it is the fact that no-one appears to be willing to stand up and take responsibility, I would assume for fear of possible litigation.

Workcover is a disgrace, a truly broken system. When it comes down to dollars versus patient care, we all know who wins…a sad indictment on society. The crazy thing is, in my case, if this had occurred over in the U.S., not only would I get my day in court, and most likely be set up for life, but the doctor / surgeon concerned would very likely lose their licence to practice. Here, in Victoria, you are given a mere pittance, and fobbed off, discarded like a piece of human garbage.

The funny thing about this, I never even intended to go with Workcover, I just wanted to go back to work. I didn’t even know how the system operated. I got told by friends to go with Workcover, so as to cover my a#se…great advice.

I suppose it could be worse.

Thanks Workcover.

T

As we, workcovervictimsdiary.com wrote to T,

Thank you for sharing your story with us, we are totally horrified and gob-smacked, especially about the part that no lawyer is prepared to take on your malpractice claim and your extreme condition.
We are truly lost for words and don’t know what to say that could possibly bring you any comfort

Our hearts go out to you, and those close to you.

We are thinking of you and are here for you.

We also asked T if he was located in Victoria (which he is), and promised him we would personally talk to our own senior lawyers and see whether there is really nothing that can be done for him. We keep to this promise, it is the very least we can do.

Waiting for serious injury

We are totally appalled that T’s lawyer “fast-tracked” his “lumpsum”! Decent personal injury (workcover) lawyers know that it is EXTREMELY important to WAIT for serious injury and never to “rush” through lumpsums or settlements.

This is particularly true for injuries which are well known to deteriorate such as back injuries, and many orthopedic injuries, which just about all, inevitably lead to arthritis.

Unfortunately, nowadays quite a few “law firms” have set themselves up as injured workers claim FACTORIES, who, yes, make a quick buck out of the misery of injured workers. It has happened to many of us. These lawyers are known as sharks. They simply “advise” injured workers to “take and run” with extremely biased impairment assessments (no appeal) and “advise” their clients that they’re not entitled to common law. Why? Simple: do the maths. The more “cases” those sharks can turn over for miminum effort (no appeals) the more money they make.

Read more about “Sometimes it is worth waiting  or delaying for serious injury” >>

A blurb about medical negligence – malpractice

In order to succeed in a medical negligence case there are several set criteria that you would need to prove.

These criteria are:

  • that the person treating you owed a duty of care
  • that they failed to provide care of a reasonable standard
  • that this failure caused you to sustain an injury or loss that is a significant injury.

Types of claims

As the treatment of medicine is extremely complex and varied, so too are the circumstances in which medical negligence is alleged. Some more common examples include:

  • inadequate surgical treatment
  • misdiagnosis
  • delay in diagnosis
  • failure to refer to appropriate specialists
  • failure to warn or informed consent – where a patient needs to prove that if he/she had been told of the risk of injury that ultimately eventuated, he/she would not have consented or agreed to have the medical treatment
  • wrongful birth – where a patient has lost the opportunity to have an abortion as a result of negligent treatment, or a patient has a baby and incurs costs associated with raising that child
  • lost chance – where a patient has lost the opportunity to avoid a particular medical condition/injury

Medical Negligence – what the Law says

Duty of Care

The doctor/patient relationship is well established as one where a duty of care is owed. Other than doctors, there are a number of heath care professionals and providers who owe patients a duty of care. These include:

  • hospitals
  • nurses
  • physiotherapists
  • chiropractors
  • dentists

Negligence

In order to prove negligence, a patient needs to show that the care provided to him/her was below the standard that would reasonably be expected by a medical practitioner. It is important to remember that just because a patient is not happy with the result of his/her treatment or he/she was not warned about every possible risk related to his/her treatment it doesn’t automatically mean the patient will succeed in a medical negligence claim.

The law places great weight on what is considered a reasonable standard of care by the medical profession. Recent changes to legislation provide that a doctor will be able to defend a case if the doctor can establish that a significant number of respected doctors would have practised medicine in a similar way, with a similar level of care.

Causation

The patient must also prove that he/she suffered an injury that was caused by the alleged negligent treatment.

Causation does not require that the negligence is the only cause of injury but a patient does need to show that the medical practitioner materially contributed to his/her injury.

While this may sound like a simple task, it is often the most difficult part of the case. For example, in cases where there is late diagnosis of cancer due to the negligent treatment of the medical practitioner, it can be difficult to unravel which role the delay in diagnosis had on the patient’s original condition and what effect it has had on the patient’s prognosis.

Assessment

The law in Victoria requires a patient to have suffered a significant injury before he/she will be able to claim for pain and suffering damages. A ‘significant injury’ is defined as:

  • for a physical injury arising out of medical negligence, a patient needs to show that he/she is more than 5% whole person impaired. Such an assessment is made in accordance with American Medical Association ‘Guides to the Evaluation of Permanent Impairment’, (4th Edition – same as the one currently use for Victorian workcover impairment assessments) that determines, medically, the patient’s level of impairment.
  • for a psychiatric injury arising out of medical negligence, a patient needs to show that he/she is more than 10% impaired
  • loss of a breast
  • loss of a foetus

Time Limits

An adult patient has 3 years in which to bring a claim for medical negligence. The limitation period starts from the date that he/she becomes aware of the negligence that caused his/her injury. This is known as the date of discoverability.

As it is often difficult to be precise as to what a patient’s date of discoverability will be, it is therefore important that the patient speaks to a lawyer as soon as the patient believes he/she may have a case

The process of such a claim

The following is an indication of the process that a patient will go through, in conjunction with a lawyer, to prepare a medical negligence claim.

  • the patient would have a preliminary interview with a lawyer who would obtain the patient’s personal and medical history, the information as to the alleged medical negligence, and the names and contact details of the patient’s medical practitioners.
  • if we recommend a patient proceed with investigating a claim, he/she would then sign medical authority documents allowing access to his/her medical records.
  • once the medical records are received, the patient’s lawyer would go through them with him/her and in most cases would then recommend that an independent expert medical report be obtained from someone who practices in the same field as the doctor complained of. The patient’s lawyer would prepare specific questions that need to be answered to determine the merits of his/her claim. This opinion is provided based on the patient’s medical records and would not usually involve a medical examination unless it was considered necessary.
  • the patient will then be assessed as to whether the injury he/she sustained amounts to a significant injury. This will require a medical examination to gauge his/her level of impairment according to the thresholds mentioned above. If there is any dispute as to the level of the assessment, the case could be referred to a Medical Panel for determination.
  • once the independent medical expert report has been received and the assessment of impairment is determined, the patient will have a further discussion with his/her lawyer and will decide whether to issue proceedings based on the investigations that have been conducted.

 



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