Stern Law is led by Principal Solicitor, Terry Stern, one of the most experienced medical negligence lawyers in NSW with over 35 years’ experience in the field and an Accredited Specialist in Personal injury Law.
Our Commitment: Stern Law is dedicated to a team approach, drawing on a variety of skills and backgrounds in medical negligence law to get our clients the best results.
For many people, the GP is the first point of contact when they experience symptoms of an illness or medical condition. In this lies a great responsibility for the GP to appropriately examine, investigate, diagnose, provide treatment or referral to the patient. This is fundamental to the fiduciary relationship, as a person will put their trust in the GP and expect them, as a medical professional, to act in their best interests. However, there are instances where a patient can suffer because of a failure to meet the standard of reasonable care of a medical practitioner, which can complicate or worsen the client’s health outcomes.
In O’Shea v Sullivan, Terry Stern represented the plaintiff in this widely publicised decision which found a GP to be negligent in the misdiagnosis of a young woman with cervical cancer. The patient had presented to the GP with post – coital bleeding, a speculum was attended, however the malignancy was missed, and the pap screen returned a false negative result. This case examined the legal liability of a GP who fails to carry out appropriate investigations on the authority of a false – negative screening test result. This decision prompted an investigation into cervical screening in Australia, further highlighting the community importance of holding medical professionals accountable.
Do I have grounds for a claim?
To be defined as medical negligence, the patient must have suffered physical, psychological, or financial harm as a direct consequence of the medical practitioner’s failure to meet the expected standard of care. [1]
• The GP owed you a duty of care.
• The treatment provided by the GP breached this duty.
• As a result of this breach, you suffered harm or injury.
The ‘standard of care’ is that of an ordinary general practioner, possessing the knowledge of the GP at the time of the consultation.
In Australia, the average payout for a medical negligence claim is $650, 000 AUS. [2] If you believe your GP failed to meet the standard of care required, a claim in medical negligence will provide you with the compensation you deserve.
Examples of GP Negligence can include:
Failure to diagnose/ delayed or misdiagnosis
Medication/ prescription mistake
Clinical mistake
Failure to gain informed consent (risks and benefit)
Failure to listen or validate a patient’s concerns or symptoms.
In Austen v Tran [2023], the defendant, a GP, faced a claim for negligence due to a delayed cancer diagnosis for multiple presentations of leg and back pain. In October 2016, the plaintiff reported suffering from 8/10 leg pain for 8 days - the GP ordered a blood test for suspected iron deficiency and provided a script for an anti-inflammatory and simple analgesia. Eight months later, the plaintiff visited the defendant for lower back and leg pain and was referred for an Xray and ultrasound, the plaintiff did not receive a follow up or treatment plan for possible abnormalities to the sacroiliac joints. In September 2017, the plaintiff was diagnosed with non – Hodgkin’s lymphoma - a terminal diagnosis. The court found the defendants practise was not a breach to the duty of care on the grounds that breach and causation could not be established.
However, ihe GP’s actions were a ‘necessary condition of harm’ due to; a failure to follow up and refer the patients’ blood tests and scan results and a failure to complete further investigations. This was not ‘best practice’ for a GP and the court provided damages accordingly for:
Pain and suffering
Gratuitous care and assistance
The cost of past and medical treatments
As demonstrated in Austen v Tran, medical negligence claims are complex and require solicitors well practiced in this area of law to establish strong grounds in breach and causation. Our team has the relevant expertise to be successful in these claims and provide you with the desired compensation.
Areas of Expertise: Failure to diagnose
Failure to diagnose a medical condition or illness is a common cause of medical negligence claims against GP’s. This is often a consequence to a failure to complete necessary tests, physical examinations, follow up care or poor communication.
Prostate Cancer
Prostate cancer affects one in six men by the age of 65.[3] Medical professionals including GP’s, owe a duty of care to investigate when a patient presents with potential symptoms. This can be complicated and made more difficult as men are often reluctant to conduct health checks, particularly more invasive or exposing procedures. This does not reduce the medical professional’s duty of care, and it is their responsibility to ensure they complete the required tests, with consent, to ensure an accurate diagnosis.
Symptoms of prostate cancer can include; frequent or painful urination, blood in the urine and back or pelvic pain.
To meet the required standard of care, there are several diagnostic tools available to medical practitioners to reach a prostate cancer diagnosis:
Digital rectal exam – Involves inserting a gloved finger into the rectum to check for an irregular surface or lump.
Blood test to determine PSA level – A protein produced by the prostate which can be higher than normal in people with prostate cancer.
Biopsy
Ultrasound
In late 2022, Stern law settled a medical negligence case against a GP for a failure to diagnose prostate cancer. The GP was found to not have taken appropriate steps to follow up an elevated PSA result or conduct a rectal examination, which failed to meet the standard of reasonable care. The plaintiff had to undergo a radical prostatectomy, which involved the removal of the prostate gland and the section of the urethra that runs through it.[4] This has created several long-term consequences including urinary incontinence and the loss of sexual function. He was rewarded $200, 000 compensation at mediation.
Breast Cancer
In 2020, breast cancer was the fifth most common cause of cancer death in Australia. Early detection remains a life saving measure. The five-year survival rate for a woman with Stage 0 or 1 breast cancer is almost 100% but falls to only 22% when the cancer reaches Stage IV.[5] Occasionally breast cancer symptoms can be negligently missed or disregarded by GP’s which can delay diagnosis and treatment.
A study from the US [6] found that the most common reason for the delay in diagnosis of breast cancer is the failure for the doctor to be ‘impressed’ by the findings of the clinical examination as well as a failure to follow up in a timely fashion. Historically, women aged under 40 are overrepresented for claims involving failure to diagnose breast cancer.
Failure to diagnose breast cancer may not be the result of a single medical practitioner or GP, but a result of several missteps by different healthcare providers.
Examples include:
Failure to acknowledge a patient’s symptoms.
Failure to conduct a physical examination or order a mammogram
A radiologist misreading the results of a screening test
Failure to order a biopsy
Failure to communicate results or follow up with patient
Identifying breast cancer in dense breast tissue
Breast composition varies between all women. There are three key components which include; fatty, glandular and connective tissue. The composition of extremely dense breast tissue holds a lot of fibrous and glandular tissues, which ultimately makes it more difficult to see cancer on a mammogram. This is because dense tissue appears white on a mammogram, like tumours, making it very difficult for technicians to notice an abnormality.
Importantly, dense breast tissue cannot be felt by physical examination, only a mammogram can reveal it. This places a higher burden on the radiologist to recognise the risk this possesses and to meet the standard of care by completing relevant tests to prevent a false negative test result.
Women with dense breasts also have a higher risk of developing breast cancer, which makes this even more of a concern. This is combined with other risk factors including hormones, BMI and genetics. [7] Again, it is the responsibility of the radiologist, to complete additional investigations including MRI, Ultrasound or 3D Mammogram which can be more effective for diagnosis in dense tissue.
Professional expert, Mary Rickard, a radiologist from the Sydney Breast Clinic, stated that if women have breasts with density at 50 per cent or more, they should consider having a 3D mammogram along with an ultrasound, rather than relying on a standard mammogram. [8]
However, current standard practice in NSW is not to measure breast density in women due to concerns of varied and inaccurate results depending on how the image is analysed – and the anxiety and confusion this can cause women when passed on.
Many women therefore will not receive disclosure that they hold higher density breasts when they attend a routine mammogram. In result they are deprived the right to access of their own personal medical information and the autonomy to follow up and conduct their own cancer risk assessment.
If your breast cancer has become more serious due to a failure to diagnose or misdiagnosis, you’re likely entitled to compensation through a medical negligence claim. Although it will not erase what you’ve gone through, it will assist you in moving forward by receiving what you deserve.
How to Establish a Claim
To establish an action in negligence, with your consent, our firm will collect your personal medical records and any correspondence with the relevant GP. These will be reviewed by specialised medical negligence solicitors and expert medical advice to determine whether the care you received by the GP, failed to meet the standard of reasonable care which resulted in further harm to you.
Reach out to our team at Stern Law, offering a unique and individualised understanding of the sensitive nature of medical negligence claims. We will listen with empathy and provide guidance through the complex claims process.
Please call us on (02) 9387 1399 or email us at reception@sternlaw.com.au
We look forward to sharing this journey with you.
Disclaimer: The content of this article is intended only to provide a summary and general overview of matters of interest. It does not constitute medical or legal advice and should not be relied on as such.
[1] Cancer.org ‘Breast Cancer’
[2] Australian Family Physician ‘Failure to Diagnose Breast Cancer’
[1] Cancer council, ‘Prostate Cancer’
[2] Health direct ‘Radical Prostatectomy’
[3] Australia Patients Association (7 April 2022) Medical Negligence https://www.patients.org.au/medical-negligence/
[4] Ibid.
[5] Breast Screen NSW ‘Breast Density’
[6] ABC NEWS ‘Have you got dense breasts’
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