Making a Will? Get it sorted.

Making a Will? GET IT SORTED!!

A recent survey by a prominent Australian Law firm revealed that whilst almost all Australians acknowledge the importance of making a Will (97%), only a little more than half actually have one (52%).

Most younger respondents felt that a Will was something that older people should do and that they could address the issue later. Some just hadn’t gotten around to it yet. Others felt that the expense was not worth the hassle, that they really didn’t have enough assets to warrant making a Will or were intimidated by the process of making a Will and the thought of death.

Some older Australians had Wills but hadn’t updated to take into account their changed circumstances:

  • a named executor or beneficiary had passed away,
  • one of their beneficiaries circumstances had changed (eg bankruptcy, volatile relationship etc) such that a bequest to that beneficiary was wasted,
  • circumstances had changed through marriage or divorce, or
  • their financial circumstances had changed significantly through inheritance.

You’ve no doubt heard the old saying: “You never know what’s around the corner.” Life throws up all sorts of challenges. If you’re not serious about what happens to your estate when you’re gone, it may be distributed in a way you had not hoped, and you will most likely leave a substantial headache for those you leave behind who have to sort out the mess.

Get it sorted.

 

We’ll help you get it sorted

  • Out of office appointments or telephone conferences to discuss your needs and advise in relation to your Will and other Powers
  • One week turnaround in the preparation of your documents
  • After hours and out of office appointments
  • Significant discounts – $400 discount for Couples and $200 discount for Singles*

Valid until 15.12.18

 

Will discount offer
Overriding parents decision re medical treatment

A Hospital’s Claim to Override Parents Decision for Medical Treatment

What power does the Supreme Court have to override parent’s wishes in regard to medical treatment for their children?

The Supreme Court in its Equity Division, Protective List has the power to do many things which contradict the wishes of parents, particularly when it is determined that the parents do not have the interests of the child as their paramount concern.

Most often, the jurisdiction of the Court is exercised when the religious convictions of the parents militate against the proper medical treatment and care required to save the child’s life. We have seen many occasions where the religious beliefs of Jehovah’s Witnesses have prevented vital medical treatment involving the infusion of donor blood or blood products.

In The Application of Sydney Childrens’ Hospital Network [2018] NSWSC the Hospital brought an application before the Supreme Court for an order seeking approval to conduct a procedure (after birth) with respect to a baby who had been diagnosed in utero with a serious heart condition. The parents had refused to consent to the procedure where it was likely to involve the use of donor blood. Their decision would likely prevent surgeons being able to save the baby’s life.

The critical issue was the interests of the as yet unborn baby. The Court observed that medical treatment by way of surgery was necessary to save the baby’s life and authorised the procedure conditional upon the live birth of the baby, and the use of donor blood or blood products if necessary in the exercise of proper medical judgment.

Clinical Notes

Access to the clinical notes of our loved ones

Our paralegal Lauren Faulkner recently wrote about the entitlement we each have as consumers of health care services to access clinical notes from our doctor or hospital. Lauren also raised the real issues for family/next of kin in obtaining their departed loved one’s clinical notes after their death. This is often a critical problem when there is an allegation that a health care practitioner/provider caused or contributed to the death. Without the notes an aggrieved family member may never get past first base in an investigation into the circumstances of the death.

Unless the deceased estate has a personal legal representative appointed by the Supreme Court through Probate or Letters of Administration, a health care practitioner/provider is not obliged to release the deceased’s clinical notes, not even to senior next of kin. Sometimes a person’s estate is not sufficient to warrant an application to the Court for Probate, and whilst the estate vests in the NSW Trustee and Guardian until other order, there is a practical reluctance on the part of the trustee to become involved.

Fortunately, there are provisions under the Civil Procedure Act 2002 and the associated Uniform Civil Procedure Rules which allow the Court to order a health care practitioner/provider to provide the records by way of pre-litigation discovery. The Law Office of Conrad Curry recently obtained judgment in the District Court of NSW for a spouse of the deceased person for access to the GP’s notes through pre-litigation discovery.

Our client’s allegation is that the deceased died as the result of an overdose of prescription drugs. Her GP knew that she overused/abused opioid analgesics and had put in place a very careful system to ensure that she had access to only small amounts of the drugs. Unfortunately, she was very convincing and lied about a trip away for three weeks. The doctor foolishly gave her the prescription which ultimately gave her the ability to take her life.

The doctor resisted handing the documents over on the basis of doctor/patient confidentiality.

In Terence Forbes v Stanley Tang 2018/00248290 NSWDC 12 September 2018 Judge Gibson agreed to our application and ordered that the GP discover all documents in his possession relating to the deceased’s treatment. She relied on Rule 5.3 UCPR which permits access to documents even before proceedings are commenced where it can be shown that the applicant may be entitled to make a claim but having made reasonable enquiries is unable to obtain sufficient information to decide whether or whether not to bring proceedings, and where the prospective defendant (Dr Tang) has possession of documents which might assist in the enquiry and inspection.

In our case the applicant husband has suffered psychiatric injury as the result of the circumstances of his wife’s premature death. The doctor had been the treating GP for many years and had prescribed Endone and other opioid analgesics. He was well aware of the deceased’s overuse/abuse issues, including prior overdose resulting in Hospital admission. In a Police statement Dr Tang had admitted to prescribing more than the recommended dosage of the drugs. Reports obtained from the Coroner revealed that a drug overdose was the cause of death.

The Judge analysed the provisions of the Health Records and Information Privacy Act and determined that we had exhausted all reasonable enquiries and ordered that the documents be made available for our inspection. As the result of access to the documents we will shortly issue proceedings against the doctor for his breach of the duty of care.

 

Related articles:

Access to my hospital or doctor’s medical records

Screening rare genetic disorders

Screening for rare genetic disorders

It seems to me a wonderful imperative in a modern socially responsible economy such as Australia to give all would-be parents the opportunity of screening for the numerous rare genetic disorders when planning their families.

My fear however is that short sighted governments won’t see the long term economic benefits when assessing whether to make screening universally available as suggested in this article in the Sydney Morning Herald.

Like cancer screening, will governments take the view that it is too expensive an upfront cost, and ignore the huge economic benefits in avoiding future treatment costs for the people afflicted with the genetic disorder? I sincerely hope I’m wrong.

 

Related articles

Fertility and pre-natal genetic testing

 

Genetic testing – how can it go wrong?

Can recorded conversations be used in evidence

Recorded conversations – can they be used in evidence?

One of the most common questions I’m asked about, particularly in criminal matters and medical negligence cases where clients have recorded conversations with physicians, is whether recordings taken during private conversations without the consent of the other party can be used in evidence against them or in their client’s defence. Simply, the answer is ‘no’ but with exceptions.

Section 7 of the Surveillance Devices Act 2007 (NSW) prohibits the installation and use of listening devices to overhear, record, or monitor private conversations to which a person is a party. The exceptions are probably fairly obvious and include a situation where a person impliedly or expressly consents, the use is in the context of authorised police operations and in the protection of rights in relation to refusals to participate in police interviews.

In the recent Court of Appeal cases of Bandao v R, Bruce v R [2018] NSWCCA 181 however, the Court stepped out the means by which a party could introduce evidence of recorded conversations where the evidence they gave under cross-examination relied on it. The two men had been convicted of various sex charges on two women. On the evening of the alleged offences the girlfriend of one of the men (Ms T) took a recording of her discussions with one of the complainants.

During the trial the barrister for the men began asking a series of questions of the complainant in cross-examination about the conversation. It soon became apparent that he had access to a recording. The recording was disclosed to the Crown who then gave a copy to the complainant (whilst still in cross-examination – a serious ‘no no’). All hell broke loose. The Judge was not happy and an application followed to permanently stay the prosecutions. The men were however ultimately convicted.

On appeal it was apparent that the recording was illegal, among other things, because Ms T took the recording to protect her own interests and those of her boyfriend. However, had the defendant made application under the Evidence Act s138 prior to Ms T giving evidence, then the Court would have had the discretion to allow it into evidence and for a copy to have been provided to the complainant prior to her giving evidence.

 

Using social media as a platform for business promotion – be careful

Genetic testing gone wrong

Genetic testing – how can it go wrong?

Australia claims to be a world leader in genetic testing and in the diagnosis of genetic abnormalities in the pre-implantation phase of IVF and the early pre-natal stage. With such touted expertise, we are entitled to expect accuracy in diagnosis, aren’t we? After all, the decision to proceed with the pregnancy will have profound consequences for parents, families and the affected child concerned if the results of the tests were wrong. In most cases the choice to have genetic testing arises because one of the parents suffers the genetic disorder themselves or is a carrier and does not want to burden a child with the genetic disorder. Unfortunately, genetic testing errors keep occurring despite the rhetoric from genetics laboratories as to their status as world leaders.

Despite butt-covering claims that the results were skewed because of ‘biological’ circumstances beyond laboratory detection, most of the mistakes in diagnosis arise because either the incorrect test was carried out (believe it or not), or the test was not carried out in accordance with accepted and adopted professional standards and protocols sufficient to exclude errant results.

The Law Office of Conrad Curry now has a number of cases where parents who have sought genetic testing, either as part of the IVF process at the embryo stage prior to transfer and implantation or through pre-natal diagnosis, have been let down by genetics laboratories with incorrect negative results. Now they are left with the responsibility of a life-long commitment to the care of profoundly disabled children. The personal, emotional and financial commitment is enormous and literally life changing. Whilst these parents are loving and devoted to their children (this cannot be denied), they are entitled to hold laboratories and genetic services to account, if no more than to provide for the health and allied health services required by their children to live the semblance of a normal life.

The Law Office of Conrad Curry is passionate in ensuring that individuals have a voice when affected by incorrect negative results or inaccuracy in genetic testing.

If you have been affected by negligence in genetic testing, please call us today to speak to our friendly team.

 

Fertility and pre-natal genetic testing

 

Medical negligence and reproductive negligence

Medical negligence and reproductive negligence

Medical negligence and reproductive negligence

Reproductive negligence

More and more people are turning to health care professionals to help plan their families, whether that is to conceive via reproductive technologies such as in vitro fertilisation, to allow prospective parents a greater level of control over the avoidance of genetic traits or disorders, or to obtain advice and treatment by way of surgical sterilisation to prevent the birth of further children.

Decisions about having children more than any other decision in our lives shapes who we are as individuals, what we do and what we will be remembered for. Most people find profound enjoyment, fulfillment and meaning in pregnancy and parenthood, and so, the interference with reproductive plans is a serious affront to us as human beings. With scientific advances and highly educated and skilled practitioners who are paid a high price for their skill and expertise, we are entitled to expect that their skills and knowledge will be applied in a way that avoids mistake or chance, and that our decisions are carried out to full effect.

Unfortunately, the level of clinical and pathology mistakes is alarmingly high in a field where there can be no higher objective for treatment and professional care. Few people in our community are aware of their legal rights and remedies for redress arising from the avoidable errors which plague the broad area of reproductive medicine. This is why I am so passionate about my work in seeking redress for victims of reproductive negligence in the field of reproductive medicine.

The topic is vast, and I am simply unable to do it justice to it in such a short piece. However, I will try to touch on just a few examples of issues I have encountered in my years of practice in reproductive negligence.

There are three broad categories of reproductive negligence in the field of reproductive medicine:

  1. Failed sterilisation – imposition of unwanted pregnancy
  2. Deprivation of pregnancy
  3. Birth of children with unwanted genetic traits

Tubal ligation and reproductive negligence: Erin’s story

Vasectomy and reproductive negligence: Tony’s story

Deprivation of pregnancy and reproductive negligence: Michael & Stacey’s story

 

 

 

 

 

Vasectomy and reproductive negligence Tony's story

Vasectomy and reproductive negligence: Tony’s story

Male sterilisation: Vasectomy

Vasectomy is a surgical procedure for male sterilisation or permanent contraception in which the vas deferens are cut and tied or sealed so as to prevent sperm entering into the urethra and thereby preventing fertilisation through sexual intercourse. The procedure is not fool proof. Whilst most failures happen in the first few months after the procedure when live sperm may still be in the man’s semen, vasectomy can fail for example if the doctor misses the vas deferens during the procedure or where the cutting and closure of the tubes is not effective and the vas grows back (re-canalization). It is extremely important that there are repeat sperm assays over an extended period to ensure that there is no sperm in the semen. Doctors should advise of the necessity of repeat sperm assays.

Reproductive Negligence Case Study: Failed Vasectomy – Tony’s Story

Tony was divorced after many years of marriage. He hadn’t need to worry about contraception because his wife had a hysterectomy after complications with their fourth child. Tony was still sexually active and planned to have casual relationships after his separation, not ever wanting more children. Tony saw his doctor who referred him to a urologist. A vasectomy was conducted in day surgery and Tony’s care was referred back to his G.P. Tony was not advised to have follow-up sperm assays.

Tony entered a casual sexual relationship with a woman and told her that he had had a vasectomy. The woman, who was in her late 30’s, fell pregnant and ultimately gave birth to a child with down syndrome. Later paternity tests showed that the baby was Tony’s and subsequent tests revealed that the vas had re-canalized soon after the procedure because of the procedural shortcomings. Tony sued the urologist and his G.P. in negligence for their failure to advise of the necessity to have repeat sperm assays and the risk of re-canalization.

The Law Office of Conrad Curry is passionate in ensuring that individuals receive appropriate treatment during all aspects of sterilisation treatment.

If you have been a victim or suffered loss as a result of medical negligence, call us today to speak to our friendly team.

 

Deprivation of Pregnancy – Fertility clinic: Michael & Stacey’s story

Tubal ligation and reproductive negligence: Erin’s story

Reproductive negligence - tubal ligation - Erin's story

Tubal ligation and reproductive negligence: Erin’s story

Female sterilisation: Tubal Ligation

Tubal Ligation is a permanent form of contraception and is intended to be non-reversible in which the fallopian tubes are blocked or occluded with the placement of clips. It can be conducted by laparoscopy (keyhole surgery) or laparotomy (in which there is a small incision in the lower abdomen to give access to the fallopian tubes) and usually under a general anaesthetic. Tubal ligation might also be conducted during a caesarean delivery. The clip, if effectively placed, prevents the eggs released from the ovaries travelling down the fallopian tubes and coming into contact with sperm. Instead the eggs are absorbed into the tissue. The procedure is very effective in preventing pregnancy. However care must be exercised to ensure that the clip is positioned correctly on the appropriate part of the tube to ensure the tube is occluded, otherwise an egg can travel past the clip and through the fallopian tube. If pregnancy does occur there is an increased chance of ectopic pregnancy.

 

Reproductive Negligence Case Study: Failed Tubal Ligation – Erin’s story

Erin and her husband had 3 children in fairly quick succession. It was always their plan to have 3 children and no more given the financial pressures of having a young family. To make matters worse all three babies were delivered by caesarean section given issues with her cervix. Erin planned to return to work to ensure that she and her husband could give their kids a good quality of life and a good education. During the third pregnancy, Erin consulted her obstetrician and asked about the options available to her for sterilisation. The doctor recommended tubal ligation after the caesarean.

Erin’s third child was delivered and tubal ligation was performed, with clips placed on her fallopian tubes to prevent further pregnancy. About 8 months later Erin found out that she was pregnant with her fourth child. Whilst they had no plans for another child, Erin and her husband could not morally terminate the pregnancy. The child was again delivered by caesarean and Erin elected for a salpingectomy where the fallopian tubes are removed altogether. The tubes were sent to pathology where it was discovered the one of the clips had been poorly placed very high on the fallopian tube and had failed to block the tube.

The baby was born perfectly healthy, but there was an intense emotional impact of Erin and her husband, who were forced to change their life plans. Erin was also left with serious gynaecological issues as the result of the numerous caesarean sections. Intimacy in her relationship with her husband suffered as well.

Erin was successful in proceedings against her obstetrician for the pain and suffering she endured during the pregnancy, the caesarean, the gynaecological symptoms and the emotional impact on her as the result of the pregnancy and the birth of the unplanned child.

Note: Since November 2002 in NSW damages cannot be awarded for the costs of raising a perfectly normal child or any income loss arising as the result of the time away from the workplace arising from the time to care and raise the child. However, damages are available for the costs of rearing a disabled child over and above the costs applicable to raising a normal child.

The Law Office of Conrad Curry is passionate in ensuring that individuals receive appropriate treatment during all aspects of sterilisation treatment.

If you have been a victim or suffered loss as a result of medical negligence, call us today to speak to our friendly team.

 

Vasectomy and reproductive negligence: Tony’s story

Deprivation of pregnancy and reproductive negligence: Michael & Stacey’s story

 

Reproductive negligence - fertility clinic - deprivation of pregnancy

Deprivation of pregnancy and reproductive negligence: Stacey & Michael’s story

Reproductive Negligence Case Study: Deprivation of pregnancy – Stacey & Michael’s story

When they married, Michael and Stacey planned to have two children and hoped very much that they would have one of each. Unfortunately, Stacey suffered from endometriosis which meant that she suffered a great deal of pain during sexual intercourse. It also made conception very difficult. To make matters worse Stacey had a diminishing number of eggs and was very concerned about the risk of ectopic pregnancy.

Michael and Stacey sought a referral to a fertility specialist and undertook in vitro fertilisation. During the first 11 cycles, where viable eggs were harvested they were fertilised with Michael’s sperm. A number of cycles had failed to produce fertilised embryos and where viable embryos had been obtained, implantation had failed. It was an exhausting and emotionally difficult journey for both of them, not to mention expensive. It had the largest psychological impact on Stacey particularly given the increased difficulty in obtaining eggs. The couple had all but given up.

On the twelfth cycle four eggs were harvested and fertilised with Michael’s sperm. All were stored by the IVF clinic and Stacey continued through the cycle in readiness for transfer. The fact that there were four fertilised eggs was very encouraging because it meant that there were further opportunities for transfer. Shortly prior to the planned transfer, the incubator containing the fertilised eggs was switched off accidentally when a pile of cases notes was placed on the bench against the incubator. This action triggered the on/off switch and the embryos were destroyed.

The destruction of the embryos was devastating and marked the end of the couples’ reproductive plans. Both Michael and Stacey suffered psychological disorders affecting every aspect of their lives, including the ability to work. Michael and Stacey threatened proceedings for damages. Fortunately, the fertility clinic admitted their contractual and tortious breaches and resolved the case out of court.

The Law Office of Conrad Curry is passionate in ensuring that couples receive appropriate treatment during all aspects of fertility treatment.

If you have been a victim or suffered loss as a result of medical negligence, call us today to speak to our friendly team.

 

Vasectomy and reproductive negligence: Tony’s story

 

Tubal ligation and reproductive negligence: Erin’s story