Stroke and negligence: the difficulties facing plaintiffs

19 November 2013

By Sarah Vallance, Associate, and Margaret Brain, Special Counsel, Medical Law Department, Brisbane

Stroke is a leading cause of disability and death in Australia.

In medical litigation, there are two circumstances where a claim may be pursued against a medical practitioner. The first circumstance is where there has been a failure by the medical practitioner to implement a treatment regime to reduce a patient's risk factor for stroke and the patient subsequently suffers a stroke. To succeed, it will be necessary to show what treatment was in fact indicated and whether this would have prevented the stroke.

In Papa v Sullivan Nicolaides Pty Ltd [2010] QSC 364 (24 September 2010), the patient required lifelong anticoagulant therapy as a result of an artificial mitral valve. The pathology service had been monitoring the patient's warfarin levels and discharged her from their service, as her International Normalised Ratio (INR) levels were sub-therapeutic and the pathology service had wrongly formed the view that she had not been complying with their guidelines. The patient suffered a stroke two days later. The court found that the pathology service was negligent for failing to contact the patient and her general practitioner, alert them to the sub-therapeutic INR readings and recommend that additional steps be taken to remedy the sub-therapeutic INR levels. The court also found that if the pathology services had taken those steps, the patient would have been referred to her cardiologist and the treatment recommended by the cardiologist would most likely have prevented her from suffering a stroke. The trial judge's findings on liability were upheld on appeal.

However, many cases do not resolve in the patient's favour. In Beech v Timney & Anor [2013] EWHC 2345 (QB) (29 July 2013), a 35 year old patient suffered a stroke and tests subsequently revealed very high blood pressure. The patient was unable to show that the blood pressure readings taken by his general practitioner eight months earlier were inaccurately recorded as being on the low side of normal. The court also considered whether earlier treatment of the patient's blood pressure would have prevented his stroke and found that based on scientific literature, the chances of making any difference to the risk of a stroke after a treatment regime in place for no more than a few months are negligible.

The other circumstance in which a claim may be pursued against a medical practitioner is if there has been a failure to diagnose and treat a stroke. In these situations, it is necessary to determine:

  1. Whether an appropriate history was obtained by the medical practitioner and if not, what history should have been obtained?
  2. Whether an appropriate examination was performed and if not, what should have been examined and what would the results of the examination have been likely to show?
  3. Based on the history and examination findings, should a stroke have been suspected?
  4. If a stroke should have been suspected, what investigations would have been performed and would this have led to an earlier diagnosis?
  5. If a stroke had been diagnosed earlier, would any treatment have been indicated?
  6. If treatment had been initiated, would this have made a material difference to the plaintiff's outcome?

There are a number of hurdles for patients to overcome before they will succeed in a claim due to delay in diagnosis of stroke. This is because some of the symptoms of stroke may mimic other benign medical conditions. Therefore, it may be reasonable for the medical practitioner not to suspect a stroke. If a stroke is suspected, it is necessary to determine whether it is an ischaemic stroke or a haemorrhagic stroke before treatment is commenced, as treatments for an ischaemic stroke are contraindicated in a haemorrhagic stroke. If a patient has suffered an ischaemic stroke, they may be a candidate for thrombolytic therapy. However, this type of treatment can only be used up to 4.5 hours after onset of neurological symptoms. Recent studies have shown that the rate of improvement in outcomes following initiation of thrombolytic therapy is 60%. If a CT scan is performed and excludes a haemorrhagic stroke, any delay in commencing thrombolytic therapy can be the basis for a claim in negligence.

Other treatments, such as aspirin therapy can be commenced within 48 hours after the onset of stroke symptoms. However, a patient is unlikely to establish on the balance of probabilities that earlier commencement of aspirin therapy would have made a material difference to their outcome.

As the impact of stroke can be devastating to patients and their families, lawyers will almost always carefully investigate the circumstances to determine whether there was any deficiency in the treatment provided by their medical practitioners.

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