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Few rewards in Patel class action plan

By Kevin Barratt - posted Wednesday, 21 July 2010


The legacy of disgraced surgeon Dr Jayant Patel continues to loom over Queensland, with his conviction in June for manslaughter now triggering a call for more compensation for his hundreds of victims.

Within days of Patel’s conviction on multiple manslaughter and grievous bodily harm charges, and his sentence to seven years’ imprisonment, there was talk of a class action suit against Queensland Health, the Medical Board of Queensland and Dr Patel.

Patel operated on his victims when he was director of surgery at Bundaberg Base Hospital between 2003 and 2005. In the subsequent scandal when the scale and enormity of his botched surgery was revealed, the Queensland State Government launched a special compensation process “to provide fair and reasonable compensation” to his patients.

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Hundreds of patients received compensation, buoyed by a public inquiry that found Queensland Health and the Medical Board of Queensland had failed to scrutinise Patel's credentials before he took up work in the state and failed to detect he had been banned from performing some surgery in the United States because of negligence.

In June 2007 the then Attorney-General, Kerry Shine, acknowledged about 380 claims had been lodged under the special scheme. However, many claims were rejected, being considered to be not eligible for compensation, because they were regarded as being either not Patel’s patients or they didn’t suffer adverse outcomes from his treatment.

The Attorney-General also said he was committed “To accept claims from former Patel patients who develop medical problems in the future as a result of Patel procedures”.

While Patel’s lawyers have now launched an appeal against his convictions and sentence, Bundaberg MP, Rob Messenger, has been advocating a new look at the compensation issue. A meeting to gauge interest in a potential class action was held earlier this month with Mr Messenger reportedly claiming 89 people were denied compensation, while a legal source suggested some of Patel’s victims and their families had not been properly treated by the government.

Gregg Williams, a non-practising barrister who helps people with grievances about their treatment by the government, is among the lawyers who have reportedly offered to help the victims. Mr Williams, a former Queensland government employee, says several lawyers have volunteered to help victims of Dr Patel on an informal basis.

One sensitive aspect to the Patel compensation process has been the secrecy imposed upon the deals. Details about the total amount of compensation paid and the number of people who received it are confidential because two cases remain before the courts, a Queensland Health spokeswoman told a media inquirer.

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Against a volatile backdrop of emotions, politics, secrecy and money we need to take an urgent reality check.

The reality for those victims already compensated through the special State Government process is that they are unlikely to benefit from any planned class civil compensation action. Talk of suing Patel, Queensland Health or the state’s Medical Board seems to be more rooted in political campaigning than any realistic hope of extracting further compensation.

Beryl Crosby, a Bundaberg Hospital Patients Support Group spokesperson who was active in negotiating the original settlements, told media she believed new legal action was out of the question. She reportedly said Mr Messenger was giving patients "false hope" that they could pursue class action. Participants would then have to repay the government compensation, she warned, saying patients had been happy with their payments and were being led on by claims they were entitled to more.

Mr Messenger, who was a member of the Liberal National Party until he quit in May, said the state government compensation scheme had short-changed patients. "The special compensation process that the government set up was a complete rort and a failure," Mr Messenger said.

The government had refused to disclose how many patients were paid under the scheme and how much they received, he said. Recipients also were banned from publicly revealing dealings of their compensation, he added.

As an injury compensation lawyer I think it would be very difficult for claimants to recover further money, if they have already been paid under the state’s Patel compensation process.

Patients and families of victims who went through the compensation process earlier presumably all signed discharges. At the time the government agreed not to enforce the civil liability scale (which determines payout amounts for specific injuries).

There were some people who did not claim or whose claims were rejected but they will face limitation issues now. They may also be restricted in what they can seek by the application of the civil liability scale. This scale is a system whereby the values of specific body parts are accorded a dollar value, for compensation purposes.

Injury compensation is about determining a fair sum to compensate for loss of earnings and pain and suffering. The important thing is for former Patel patients and widows to not automatically assume that Patel’s convictions automatically translates to a new payday.

I'm not sure there's too much mileage in the debate. I'm not sure the claims will go anywhere. It would be like having two bites at the cherry. I am also very sceptical of Mr Messenger’s reported claim that a Patel victim’s family received $8,000 in compensation, but $7,000 had gone in solicitor's fees.

I doubt that claim. In Queensland, solicitor’s fees in matters like this are capped at 50 per cent of net recovery, which is damages less refunds and outlays. A solicitor charging $7,000 for an $8,000 settlement would find him or herself in professional “hot water” rather quickly.

In general, talk of more claims against Patel and Queensland Health was inevitable after the former surgeon was found guilty of manslaughter and grievous bodily harm charges following a 14-week trial in Brisbane.

There may be something in the issue of copycat claims but that was always the case. The legal principle of Patel really relates to the criminal conviction where people signed consents to undergo necessary surgery.

There are some political dimensions at play behind the Patel class action idea, but I do not think it is reasonable or fair for someone to falsely raise patients’ hopes that they may be able to secure further compensation.

People who were denied compensation might feel they could join a class action but they would have to prove Patel was to blame, and even then they would be subject to a strict scale of payments in the civil liability legislation.

Changes to Queensland’s compensation laws in 2003 meant even if some patients were eligible to take up a class action, the likely payout may not be worthwhile.

Most of the people injured by Dr Patel were old people or were very ill people and many of those people weren't working because of age or other reasons and were not going to return to work. Therefore, the damages which they could receive may be reasonably modest because they couldn't claim damages for loss of income both in the past and the future. I doubt they would be likely to receive any meaningful damages because they could not claim damages for loss of income both in the past and the future.

The reality of Queensland’s injury compensation laws does not encourage Patel patients and families to launch a renewed push for further compensation.

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About the Author

Kevin Barratt is an injury compensation lawyer with Brisbane law firm Bennett and Philp Lawyers.

Creative Commons LicenseThis work is licensed under a Creative Commons License.

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