Genetic Testing - A moral dilemma or an insurance nightmare?

Norton Rose Fulbright - Medical Law Seminar - 2013

I attended the above seminar this week and found the talk by Sandra Sithole (a director at Norton Rose Fulbright) food for thought.

The issue we are faced with is the possibility that should we undergo genetic testing for our own peace of mind then do we also have a responsibility to inform our insurer that we are at a greater risk for one or another medical ailment?

The issue of non-disclosure clearly becomes problematic especially in light of life insurance policies and income continuation benefits as it could be said that the client is no longer bona fide (as was the scenario with non disclosure in income tax returns) and clients could insure for what will now possibly become a bigger reality.

The question is, should one be entitled to keep this information to oneself in terms of Privacy Laws or can the insurance industry argue that this will be to the detriment of the healthy members? And as many such conditions are hereditary would the impact not spread far and wide for generations to come?

Maybe this would be a hurdle that we can overcome like we did for the HIV/Aids pandemic. If clients are forced by their insurer (and paid for by them) to undergo genetic testing, can one then not argue that you would be in a much better position to plan your insurance cover and in many instances a good case can then be made out for any elective surgery that a client may want to undergo to minimize the impact of genetics (as was recently seen with the much publicized Angelina Jolie surgery)

I see this as an opportunity for insurance companies to assist individuals to make their lives healthier and to provide a platform for argument that elective surgery which is still considered cosmetic, should be allowed into the fold of covered expenses.

Some basic form of genetic profiling is already allowed by taking a family history from a client as it relates to heart disease etc. Why can both client and insurer not benefit from such phenomenal strides in the medical fraternity?

The exclusion of elective surgery as it relates to corrective eye surgery by insurers has always baffled me. Why pay on a continued basis for glasses and contact lenses when your client can have corrective eye surgery and save in the long run? Many more examples of this wide interpretation of "cosmetic surgery" can be given.

A further possibility could be a reduction in the premiums of healthy individuals as they would no longer be judged statistically but rather on actual chances. The opportunity for a contingency reduction (or increase) may change the scales of balance where 99% percent of the healthy insured pay for 1% of the less healthy.

Would this make insurance unaffordable for the sickly or genetically predisposed? Yes maybe, but it could also save their lives and open the doors for prevention.

Prevention is still better than cure.

Poor prognosis of whiplash injuries

As personal injury practitioners we often scoff at the thought of a whiplash injury being a serious injury that warrants our attention any more than as a mere nominal payment for General Damages if at all (MVA’s come to mind)

  

 A Canadian study[1] found that socio-demographic factors associated with a longer recovery from whiplash include older age, female sex, having dependents and not being employed full time and that each factor decreases the rate of recovery by 14 to 16 per cent.

Factors related to the crash conditions indicate that being in a truck or bus, with a decrease of 52% in the rate of recovery, being a passenger in the vehicle (15%), colliding with a moving vehicle (16%), and a side or frontal collision (15%) all decrease the rate of recovery. One can assume that a falling lift, a tumble down the stairs or any other relevant injury may have the same consequences.

The study introduced a combined risk score that predicts longer recovery. In the subjects with these signs and symptoms, the median recovery time was 32 days and 12% of subjects had still not recovered after 6 months. The signs and symptoms that were found to be independently associated with a slower recovery from whiplash, besides female gender and older age, were neck pain on palpation; muscle pain; pain or numbness radiating from neck to arms , hands or shoulders; and headache. I would suggest that a predisposition to osteoporosis should also be taken into consideration.

Together, the presence of all these factors in females aged 60 predicted a median recovery time of 262 days, compared with 17 days for younger males aged 20 who do not have any of these factors.

In a different 15 year study of forty patients[2] with a whiplash injury, who had been reviewed previously 2 and 10 years after injury, were assessed again after a mean of 15.5 years by physical examination, pain and psychometric testing. Twenty-eight (70%) continued to complain of symptoms referable to the original accident. Neck pain was the commonest, but low-back pain was present in half. Women and older patients had a worse outcome. Radiating pain was more common in those with severe symptoms. Evidence of psychological disturbance was seen in 52% of patients with symptoms. Between 10 and 15 years after the accident 18% of the patients had improved whereas 28% had deteriorated.

In another study, Frequency, Timing, and Course of Depressive Symptomatology after Whiplash, the assessment of[3] 5,211 subjects reported no pre-injury mental health problems, 42.3% (95% confidence interval, 40.9–43.6) developed depressive symptoms within 6 weeks of the injury, with subsequent onset in 17.8% (95% confidence interval, 16.5–19.2). Depressive symptoms were recurrent or persistent in 37.6% of those with early post-injury onset. Pre-injury mental health problems increased the risk of later onset depressive symptoms and of a recurrent or persistent course of early onset depressive symptoms.

It was concluded from this study that depressive symptomatology after whiplash is common, occurs early after the injury, and is often persistent or recurrent. This suggests that, like neck pain and headache, depressed symptomatology is part of the cluster of acute whiplash symptoms and that clinicians should be aware of both physical and psychological injuries after traffic collisions.

What these studies prove is that we need to ask our experts to be clearer in their reports on patients future prospects, especially in cases where an addendum is prepared and where the only prospect of financial reward would be the application of the narrative test (MVA’s). It is clear from these studies that a whiplash injury cannot simply be ignored when taking into consideration if a client qualifies for general damages or for what amount such general damages should be awarded.

Careful consideration and adequate instructions to our experts will insure that matters are properly considered as they should be.

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[1] McGill University, Montreal, Canada. samy.suissa@clinepi.mcgill.ca

[2] © 1996 British Editorial Society of Bone and Joint Surgery

[3] © 2006 Lippincott Williams & Wilkins, Inc.

Post Traumatic Stress Disorder (PTSD)

A large number of South African suffers from Post Traumatic Stress Syndrome for some reason or another. It is common for Personal Injury victims to have recurring nightmares or unreasonable fear when again placed in the particular event or situation that afflicted them in the first place. Research indicates that 7 to 12 percent of people develop post-traumatic stress disorder (PTSD) at some point in their lives, with women more likely than men to develop it.

PTSD is an anxiety disorder that can occur after a person experiences a traumatic event such as combat or military experience, sexual or physical abuse or assault, a serious accident, or a natural disaster such as a fire, tornado, flood, or earthquake. Some people develop PTSD after seeing someone else experience a traumatic event. The more severe and the greater the number of traumatic events experienced, the more likely someone is to develop the disorder. PTSD often leaves one feeling vulnerable, out of control, and as if one is in constant danger. These feelings are persistent, are strong, and do not disappear over time on their own. Everyday life, work, and relationships can be negatively affected.

In some instances the effects of such PTSD can have a debilitating effect on the work and home environment of the sufferer and can go undiagnosed in such personal injury cases preventing provision being made for proper care and treatment after the fact.

To be diagnosed with PTSD, the person must have persistent trauma-related problems for at least a month after the event. The person must also have specific

symptoms, which are described below.

What Are the Symptoms of PTSD?

PTSD is defined as experiencing three types of persistent symptoms following a traumatic event:

• re-experiencing the event through intrusive memories, dreams, or flashbacks, or feeling distress upon exposure to trauma-related stimuli

• avoidance of people, places, or things that remind the person of the traumatic event; numbing of feelings or detachment from others

• increased arousal, including increased heart rate and muscular tension, restlessness, sleeping, irritability, poor concentration, feeling on guard or hyper vigilant, or having an exaggerated startle response[1]

I find that attorneys for both parties too easily dismiss these diagnoses with a wave of the hand and open themselves up to litigation for under settling. Once again, ensure that you investigate your client’s complaints completely and in totality.

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[1] Co-occurring disorders program: Family program 2008 – Hazelden Foundation

The Correct Expert

My most frustrating moments in settlement negotiations, regularly, is when your opponent does not know the difference between a neurosurgeon and a neuropsychologist and the impact this can have on your ability to settle a matter.

An orthopaedic surgeon who looks at the ex rays and does not test the physical capabilities of a particular body part to perform its functions as an occupational therapist does, can similarly prevent a fair and reasonable settlement discussion taking place.

Whereas the neurosurgeon is just that, a surgeon, the neuropsychologist does a battery of test not limited to cognitive functioning, that will enable him to determine if a minor brain injury has had an impact on a person’s capabilities and have led to any incapacity. Ditto for the Orthopaedic v the OT.

The AMA guidelines as applied by the surgeons are often incorrectly applied as they are not trauma specialist. As such it would be in the client’s best interest to utilize a Trauma Physician to assess the client for completion of the RAF 4 form.

The assessment of General Damages in any personal injury matter can be better determined with a Trauma Specialist so as to more fully appreciate the extend of the pain and suffering the client will be exposed to in future and will further assist in preventing the determination of General Damages being a thumb such stuck in the old ages without taking the subjective pain and suffering of the individual into account.

A short period of unconsciousness can have serious future complications and any lack of oxygen during injury can lead to future cognitive difficulties. Make sure that you investigate all your injuries carefully and peruse the hospital and medical reports in detail. The ambulance records form a vital part of such an investigation as a patient that is found unconscious at the scene of the accident should raise alarm bells. Check the time of accident and the time of arrival of the ambulance and you will have an estimated period of unconsciousness. As such make sure that the specialist completing your RAF 4 form is in possession of these docs and have considered them when applying the AMA Guidelines and the narrative test.

Choosing the right expert in a medical negligence case

DE REBUS March 1st, 2012

‘How do you ensure that the opinion of your expert is favourably considered?’

By Maud Letzler

As the sun sets on personal injury law as we know it in South Africa due to the demise of road accident claims, counsel and attorneys will be confronted with an increase in medical malpractice matters.

Medical negligence claims have always been present in South Africa, but in the past insurers were happy to settle most matters quickly and quietly to avoid incurring unnecessary costs and to save the reputation of the doctor concerned. As renewed financial pressure will be placed on the resources of insurers, plaintiffs may find themselves having to fight harder to obtain a settlement or a favourable outcome in court, and herein lies the crux of the matter. No one can prove a medical negligence case, although some certainly try to, without expert medical opinion. However, with the variety of fields that may confront a legal practitioner, he may find himself swimming upstream.

Doctors in South Africa, as in other parts of the world, are notoriously reluctant to testify against each other, and medico-legal experts often find themselves on the outside of the fraternity being reviled for what is essentially a necessary service to mankind.

The medical profession, like any other, should be subject to checks and balances, and without doctors willing to give opinions in legal matters the rights of parties may be severely prejudiced.

The most dangerous scenario for any doctor would be to come up against a plaintiff who is litigating for the sake of it, that is, with his heart and not his head.

It is essential for practitioners who plan on moving from motor vehicle accident (MVA) work to medical malpractice to realise that the database of experts they have built up over the years to assist them in fighting for justice may now need to be revised. They will need an expert in almost every field of practice and, as will be illustrated below, will require working doctors and not academics in most cases.

Trying to find a suitable expert a couple of months before trial will be fruitless as it will require much persuasion to convince a practising specialist to give up his time to testify against a colleague, especially in a field that may only have a handful of specialists.

It may be prudent to obtain not just the services of an expert in the particular field, but also an opinion at the onset of the matter as it may save everyone a lot of money.

Courts and expert opinion

South African courts apply a test identical to that applied in most other common law jurisdictions to determine the weight to be attached to expert evidence in cases involving medical negligence.

The test was formulated by the Supreme Court of Appeal (SCA) in Michael and Another v Linksfield Park Clinic (Pty) Ltd and Another 2001 (3) SA 1188 (SCA) at para 34. The court held:

‘In the course of the evidence counsel often asked the experts whether they thought this or that conduct was reasonable or unreasonable, or even negligent. The learned judge was not misled by this into abdicating his decision-making duty. Nor, we are sure, did counsel intend that that should happen. However, it is perhaps as well to re-emphasise that the question of reasonableness and negligence is one for the court itself to determine on the basis of the various, and often conflicting, expert opinions presented. As a rule, that determination will not involve considerations of credibility but rather the examination of the opinions and the analysis of their essential reasoning, preparatory to the court’s reaching its own conclusion on the issues raised.’

In this particular case the experts were not asked, nor purported, to express a collective or representative view of what was or was not accepted as reasonable in a South African specialist anesthetist practice in 1994. The court expressed its frustration that the experts called did not have a ‘collective or representative opinion’ to determine how a reasonable anesthetist would have reacted in the same circumstances. It also expressed concern that the primary function of the experts called was ‘to teach’.

It found that there was an ‘absence of evidence’ of what practice prevailed in the particular field and ‘[t]hat being so, what is required in the evaluation of such evidence is to determine whether and to what extent their opinions advanced are founded on logical reasoning’. The court also referred to the United Kingdom House of Lords decision in Bolitho v City and Hackney Health Authority [1998] AC 232, in which the court stated: ‘[T]he court is not bound to hold that a defendant doctor escapes liability for negligent treatment or diagnosis just because he leads evidence from a number of medical experts who are genuinely of opinion that the defendant’s treatment or diagnosis accorded with sound medical practice.’ The court further held that it must be satisfied that such opinion has a ‘logical basis’, in other words, that the expert has considered comparative risks and benefits and has reached ‘a defensible conclusion’ (at 241G-242B).

It further went on to state that even in cases where the professional opinion held that overlooking an obvious risk is not negligent, the defendant can still be held liable (at 242H). The court further stated that courts have to rely on expert opinion to make an assessment of medical risks and benefits and, as such, the court would not be capable of making clinical judgments without the assistance of medical experts. ‘It is only where a judge can be satisfied that the body of expert opinion cannot be logically supported at all that such opinion will not provide the benchmark by reference to which the defendant’s conduct falls to be assessed’ (at 243A – E).

This essential difference between the scientific and the judicial measure of proof was aptly highlighted by the House of Lords in the Scottish case of Dingley v The Chief Constable of Strathclyde Police 2000 SC (HL) 77, in which the following warning was given:

‘One cannot entirely discount the risk that by immersing himself in every detail and by looking deeply into the minds of the experts, a judge may be seduced into a position where he applies to the expert evidence the standards which the expert himself will apply to the question whether a particular thesis has been proved or disproved – instead of assessing, as a judge must do, where the balance of probabilities lies on a review of the whole of the evidence.’

The Western Cape High Court judgment in Kosana v MEC for Health (WCC) (unreported case no 9230/2005, 23-1-08) (Erasmus J) elaborated on this further. The court referred to a passage from the Appellate Division judgment in Van Wyk v Lewis 1924 AD 438 at 444 and stated at para 36:

‘In estimating the level of skill and diligence possessed and exercised at the time by members of the branch of the profession to which a specialist belongs (the responsible body of medical men skilled in the particular art), “the evidence of qualified surgeons or physicians is of the greatest assistance”.’

The court then quoted from the following passage in Maynard v West Midlands Regional Health Authority [1984] 1 WLR 634 at 639:

‘I have to say that a judge’s “preference” for one body of distinguished professional opinion to another also professionally distinguished is not sufficient to establish negligence in a practitioner whose actions have received the seal of approval of those whose opinions, truthfully expressed, honestly held, were not preferred. … For in the realm of diagnosis and treatment negligence is not established by preferring one respectable body of professional opinion to another. Failure to exercise the ordinary skill of a doctor (in the appropriate speciality, if he be a specialist) is necessary.’

The court went on to quote from the judgment in the Bolitho case, where it was held that:

‘The assessment of medical risks and benefits is a matter of clinical judgment which a judge would not normally be able to make without expert evidence. As the quotation from Lord Scarman makes clear, it would be wrong to allow such assessment to deteriorate into seeking to persuade the judge to prefer the one of two views, both of which is capable of being logically supported. It is only where a judge can be satisfied that the body of expert opinion cannot be logically supported at all that such opinion will not provide the benchmark by reference to which the defendant’s conduct falls to be assessed.’

In Honisz v Lothian Health Board [2006] CSOH 24, at para 39, the Scottish court explained, relying on the judgment in the Bolitho case, that:

‘[As] a general rule, where there are two opposing schools of thought among the relevant group of responsible medical practitioners as to the appropriateness of a particular practice, it is not the function of the court to prefer one school over the other (Maynard v West Midlands Regional Health Authority, Lord Scarman, p 639F-G). Secondly, however, the court does not defer to the opinion of the relevant professionals to the extent that, if a defender led evidence that other responsible professionals among the relevant group of medical practitioners would have done what the impugned medical practitioner did, the judge must in all cases conclude that there has been no negligence. This is because, thirdly, in exceptional cases the court may conclude that a practice which responsible medical practitioners have perpetuated does not stand up to rational analysis (Bolitho v City and Hackney Health Authority, Lord Browne-Wilkinson, pp 241G-242F, 243A-E). Where the judge is satisfied that the body of professional opinion, on which a defender relies, is not reasonable or responsible he may find the medical practitioner guilty of negligence, despite that body of opinion sanctioning his conduct.’

Similarly, the Supreme Court of Singapore stated in JSI Shipping (S) Pte Ltd v Teofoongwonglcloong (a firm) [2007] SGCA 40 at paras 51-53 that:

‘The Bolitho addendum merely affirms the supervisory judicial responsibility to ensure, at a minimum, that the expert opinion is defensible and grounded in logic and plain common sense. This non-delegable adjudicatory mandate to assess the appropriate standard of care cannot be seriously denied. In this context, we also find the observations of Moffitt J in Pacific Acceptance Corporation Ltd v Forsyth (1970) 92 WN (NSW) 29 (Pacific Acceptance) at 75, cited by Ang J in Gaelic Inns ([34] supra ) at [11], particularly pertinent:

“When the conduct of an auditor is in question in legal proceedings it is not the province of the auditing profession itself to determine what is the legal duty of auditors or to determine what reasonable skill and care requires to be done in a particular case, although what others do or what is usually done is relevant to the question of whether there had been a breach of duty.

It follows, if the auditing profession or most of them fail to adopt some step, which despite their practice was reasonably required of them, such failure does not cease to be a breach of duty because all or most of them did the same.”

When assessing whether a professional has been negligent, courts will normally use as their benchmark the common practice within the relevant profession. However, notwithstanding that an expert witness may have considerable professional experience and knowledge about the reasonableness of prevailing standards, the court retains the supervisory responsibility to condemn an unjustifiably lax, albeit common, practice as negligent: See Edward Wong Finance Co Ltd v Johnson Stokes & Master [1984] AC 296.

In the light of the foregoing, even if the respondent’s expert’s evidence of the respondent’s expert about prevailing standards is accepted, a pertinent consideration is whether these standards fail the Bolitho addendum.’

In short, a faithful application of the Bolitho test, which has been endorsed by the SCA, as well as courts in other jurisdictions, would mean that a court must usually accept the views of a respected body of experts in cases involving medical negligence. The House of Lords, in the Bolitho decision, explained that there are only rare cases, that would be ‘very seldom’, where a judge should reach a conclusion that the views genuinely held by a competent expert are unreasonable and should be rejected.

Conclusion

The question for legal practitioners remains: How do you ensure that the opinion of your expert is favourably considered? If one looks at the cases above, it seems that legal practitioners may find themselves in an untenable situation if their expert’s opinion is not seen to carry much weight and the defendant, or the plaintiff for that matter, can be unsuccessful as a result.

It is thus imperative that medical experts are evaluated not just for their theoretical knowledge in a particular area of speciality but also for any hands-on experience they may have in practice.

It will be dangerous to use one expert for all matters. If a particular situation requires knowledge of practice rather than theory, then using an academic may prove fatal to the case.

Personal injury attorneys specialising in MVA matters have over the years become well acquainted with experts in their field of speciality and would be able to choose an expert in the particular area according to their needs.

Medical negligence is a whole new ball game as it deals with numerous specialities and attorneys may find themselves confronted with the great unknown when it comes to experts in a particular field.

If an attorney is serious about practising in this very challenging field then he must make sure that his database of experts gets attention early on. Attorneys should ensure that the nature of their relationships with their experts is such that they will be willing and able to assist them should the need arise.

Above all, attorneys should evaluate their claims early on to ensure that only the most meritorious matters proceed to trial.

 Maud Letzler LLB (Unisa) is an advocate in Johannesburg.

 This article was first published in De Rebus in 2012 (March) DR 34.

The Loss of a Chance to Recover

The application of the doctrine of a loss of a chance to recover in medical law 

A loss of a chance to recover is based on a plaintiff's right to institute action for the loss of a chance of avoiding a result rather than merely the result itself. Loss of chance in English law refers to a particular problem of causation, which arises in tort and contract. The law is invited to assess hypothetical outcomes, either affecting the claimant or a third party, where the defendant's breach of contract or of the duty of care for the purposes of negligence deprived the claimant of the opportunity to obtain a benefit and/or avoid a loss. For these purposes, the remedy of damages is normally intended to compensate for the claimant's loss of expectation (alternative rationales include restitution and reliance). 

The doctrine is discussed in some detail by Pat vd Heever (2007 Pulp University Press) in his book of the same name. Van den Heever (supra) states that a court will have the advantage when applying the doctrine to award damages if a plaintiff is unable to proof damages on a balance of probabilities. The quantum of damages is assessed according to the degree by which the defendant reduced or destroyed the plaintiff's chance of avoiding the injurious outcome.Van den Heever indicates that there are to date no reported cases of a loss of a chance having been argued successfully in South African law. The doctrine is however applied in England, Australia and the USA. 

In English Law, Lord Hoffmann in Kuwait Airways Corporation v Iraqi Airways Co (no's 4 & 5) states that one cannot separate questions of liability from questions of causation as one is not just liable but liable for something. In Australia the courts look at this issue as an injury within the scope of a foreseeable risk.The USA on the other hand looks at the doctrine from three different perspectives, the pure loss of a chance approach, the proportional approach and substantial possibility approach (Rufo v Hosking 2004 NSWCA 391)

Van den Heever states that an appropriate loss of a chance application in a medical negligence context should lift the burden of proof which confronts the plaintiff and simultaneously limit the defendant's liability. Van den Heever argues that in the South African context that such an action should be grounded on contract and tort in the alternative as causation in breach of contract is established when breach is proved on a balance of probabilities. A plaintiff will in such a case be entitled to non-patrimonial damages even if he is unable to prove causal damages. The question then arises what the standard of proof should be in such cases? 

Van Den Heever proceeds to deal with the roll of medical statistics in evaluating chance and in specific if a statistical chance or a personal chance should be used as a method of determination.  In the matter of De Klerk v ABSA Bank 2003 4 SA 315 (SCA) the court confirmed that determination of damages in a hypothetical future instance need not be established on a balance of probabilities but on the court's assessment of the chance of the risk coming to fruition. Van den Heever then begs the question if chance is real or substantial only at 51 % or if a 30% chance will also suffice.  

Hill (1991 54 Modern Law Review 521) argues that a statistical chance will not be unreasonable as a patient who had a 50/50 chance of recovery without the doctors negligence will be content with a settlement of 50% of the full damages proved and the patient whose chances were lower would recover at least something and doctors whose patients had a 51% loss will not pay out too much. As such, keeping it fair and reasonable and to that extent preventing a situation where a patient will get nothing or a doctor overpay (or for that matter the insurer of the doctor).

As it relates to the quantum, medical experts will have to evaluate the individual patient to estimate the percentage loss and the calculation should benefit both plaintiff and defendant in that if a plaintiff can show a 75% chance then the defendant should only pay 75% of damages proved.

The application of the doctrine of a loss of a chance to recover in medical law by Pat van den Heever is available from Pretoria University Law Press.