How medical negligence can result from what is not done

Medical negligence matters are not always about proving that the actions taken by medical staff are the cause of an injury — just as often it involves showing that it was an inaction or failure to act that was the cause.

DBH is representing a 22 year old man and his family who are claiming damages against a hospital and two GPs for their repeated failures to investigate what was an apparent serious medical condition.

Our client was born with the congenital condition biliary atresia, which occurs when one or more of the bile ducts in the liver is blocked. His mother noticed that he had a jaundiced appearance (i.e., yellowish skin, which is a sign of biliary atresia), while our client was still in hospital immediately after the birth. The condition persisted for several months afterwards.

The mother raised her concerns repeatedly, but was essentially fobbed off by both hospital staff and the two GPs that reviewed him, telling the mother that her son simply had breast milk jaundice, a benign form of jaundice that would soon pass. Both doctors refused to investigate further and conduct a total serum bilirubin blood test, which would have detected jaundice.

The result was that the boy suffered irreparable damage to his liver. He underwent a delayed and unsuccessful Kasai procedure in an attempt to restore the flow of the bile ducts, and then had to undergo two liver transplants. During the second of these, he suffered a hypoxic brain injury and permanent brain damage.

Our case is that both the hospital and the treating GPs failed in their duty of care, and that had his biliary atresia been treated through timely Kasai surgery, he would not have had to undergo the liver transplants, and therefore not have suffered his catastrophic brain injury.

The defendants’ claim is that they advised the boy’s mother appropriately, and that the jaundice presented as mild and so there was no need to undertake further investigation.

In order to make the case for our client, we investigated the hospital’s and clinicians’ records in detail to show that they did not take the family’s concerns seriously, that the appropriate tests were not administered, and surgery was not undertaken quickly enough.

In this case, the defendants’ actions started a tragic chain of events which, had they acted as required and in timely manner, would have been avoided, and our client would not now have a severe intellectual disability, cognitive impairment, a spastic diplegic form of cerebral palsy and autism spectrum disorder.

As a result of his catastrophic injuries, our client’s mobility is restricted, he cannot read or write, he will never work, never live, drive or travel independently, and is very unlikely to ever find a partner, have children, or develop close friendships. He will require intense care and support for the rest of his life.

The substantial damages that DBH is seeking will go some way to making sure that our client is able to receive the care to which he is entitled. This will require significant expenditure for the rest of his life, and so while the amount we are claiming on his behalf is very large, it is necessary in order to give him some sort of quality of life.

It cannot, however, make up for the injuries he has suffered through the negligence of medical professionals who did not show him the requisite duty of care.