Written by Peter CarterJune 29, 2016
A bowel cancer patient on the public list at Rockhampton hospital has battled objections to the delay in start of injury compensation proceedings caused by the 3 ½ years it took to obtain a medical report supportive of her case against a surgeon who provided unconventional explanations for her unsatisfactory outcome.
Rebecca Quinn underwent surgery in November 2011 under the hands of Dr Wisam Alkidady that caused debilitating complications.
The surgeon explained “a staple gun misfired striking a vein in her sacral plexus” and the complications only occurred because she was “susceptible to bleeding” by reason of a “very unusual vein structure.”
The planned colon resection was in fact completed two days later leaving her in significant pain in her lower back and tingling in her legs.
Surgeon Alkidady explained three months later that “a membrane had grown across the lumen of the colon” which required further surgery. By May 2012 he had diagnosed a “collapsed bowel” and threw his hands up in the air in reference to any further attempt to resolve the complications.
On referral to the RBWH in June 2012, Dr David Taylor diagnosed an anastomosis stricture – a common complication after colorectal surgery – that required a further resection to remove damaged tissue. He doubted any staple gun could have misfired and told her there was no such thing as a “collapsed bowel”.
She engaged Sydney solicitors in July 2013 and in September 2014 Dr Peter Greenburg reported to them he thought “negligence would be difficult to prove”.
Quinn insisted on seeking an alternative medico-legal view which was not obtained from Professor David Morris until May 2015 after a decision to do so was made in October 2014 – “about a month before the limitation period expired” – in conference with her legal advisers.With new local lawyers on board, she then brought an application before the District Court for an extension of the limitation period and – under the Personal Injuries Proceedings Act – to commence proceedings.
Judge David Reid had to decide whether – notwithstanding her suspicions well prior to the onset of the limitation period that the surgeon had been negligent – the report received six months after its expiration was a “material fact of a decisive nature” not within her means of knowledge any earlier.
In his view, her Sydney solicitors should have filed proceedings earlier “because there was a distinct possibility that the applicant would eventually proceed.”
But given Dr Greenberg’s unfavourable view, she was notin a position of knowing she would be able to prove negligence until the arrival of Professor Morris’s report.
The effect of Dr Greenberg’s earlier report would in the judge’s view, have “caused any legal adviser to have told her she case did not have reasonable prospects of success”.
If there were any fault for the delay in commencing proceedings prior to the expiration of the limitation period, it “lay entirely with the applicant’s solicitors” and such delay “should not be imputed to the client.”
An extension was granted and the trial will proceed to hearing in 2017 if not resolved sooner.