Legal Information
What Causes Medical Misdiagnosis?
Each year patients suffer needlessly as a result of wrong diagnoses, which include misdiagnoses and delayed diagnoses. A wrong diagnosis is considered medical malpractice if the doctor’s actions “deviated from the medical standard of care” of similarly trained doctors.
Most of the time, wrongful diagnoses occur because of medical providers who:
*Fail to order appropriate screening for illnesses and diseases
*Misinterpret lab and test results
*Fail to refer patients to specialists
*Fail to spend adequate time with patients to address symptoms
*Fail to follow up with patients, their test results, and with the referred specialists
Sometimes a serious misdiagnosis is caused by the medical lab or radiology center incorrectly performing the test or interpreting the results. The incorrect test results are then given to the doctor who ordered the test.
This page provides simple explanation of different types of not-for-profit organisation, and what to consider when choosing a legal structure. Legal structures for community groups and not-for-profit organisations.
Bodily Distress Syndrome -
The attempt by the psychiatric fraternity (covering MUPS, MUS, FSS and Somatoform disorders)
to create a new condition. What is the motivation?
O’Leary sums it up nicely:
“Bodily distress syndrome comes highly recommended within the psychiatric subdiscipline of
psychosomatic medicine, based on its ability to resolve theoretical problems with current
diagnostic constructs, address conflict between patients and doctors in the examination room,
and REDUCE THE COST of MUS and CONTESTED CONDITIONS
for NATIONAL HEALTH SYSTEMS and INSURERS.”
ME, CFS, ME/CFS and FM of course, have been subsumed into these categories.
What. A. Surprise!
Bodily Distress Syndrome: Concerns About Scientific Credibility in Research and Implementation
Diane O'Leary
Journal of Biological Physics and Chemistry · September 18; (2018): 67-77
https://docs.wixstatic.com/…/23f4ba_ae3ffbf6ff614c669f1e6ad…
Canadian Woman with debilitating illness fights the taxman in court — and wins
A Nova Scotia woman who suffers from debilitating illnesses has won a court case against the Canada Revenue Agency, which has been ordered to reconsider its decision to deny her the disability tax credit. Barbara Cochrane had qualified for the tax credit for several years prior to being denied the benefit in 2016. She appealed the decision to the CRA, but was again denied and so turned to the Tax Court of Canada. Cochrane suffers from a variety of illnesses, including fibromyalgia, which causes interrupted sleep. She has pain and anxiety to the point where she is unable to function many days of the week.
https://www.cbc.ca/news/canada/nova-scotia/disability-tax-credit-nova-scotia-court-complaints-1.4922625?fbclid=IwAR3mStQJovI2BUJSzu2pUIkqcwc18XWO28KwfOKXAB0ymO350xIjmt3kt4s
INFORMED CONSENT AND GRADED EXERCISE
The issue of harms and informed consent is vexed one in the eyes of the law. In the context of CFS, ME and ME/CFS and graded exercise therapy, the provision of information about harms falls between minimal and none.
So what options exist for action when harm occurs:
1. Human Rights Violation - regrettably there are but two jurisdictions that actually enacted the UN’s Universal declaration of Human Rights:
(A) Victorian Charter of Human Rights and Responsibilities
“Your right to protection from torture and cruel, inhuman or degrading treatment (section 10)
People must not be tortured. People must also not be treated or punished in a cruel, inhuman or degrading way. This includes protection from treatment that humiliates a person. People must not be subjected to medical treatment or experiments without their full and informed consent.”
(B) The Human Rights Act 2004 (ACT)
Under Section 10 it states the following:
“Protection from torture and cruel, inhuman or degrading treatment etc
(1) No-one may be—
(a) tortured; or
(b) treated or punished in a cruel, inhuman or degrading way.
(2) No-one may be subjected to medical or scientific experimentation or treatment without his or her free consent.
There is a slight wording difference BUT in essence a medical or allied health practitioner MUST give you informed consent - which necessitates notice of potential harms.
2. Action in Negligence - As a patient, you should be given appropriate and sufficient information about the potential risks of a procedure or treatment to allow you to make an informed decision on whether to undergo the procedure or treatment.
A doctor is not expected to warn a patient about every possible risk associated with the medical procedure or treatment. But that doctor does have a duty to warn patients of all material risks associated with a medical procedure or treatment.
The duty to warn was considered in the High Court case of Rogers v Whitaker (1992) 175 CLR 479 where it was said a risk was material if:
‘in the circumstances of the particular case, a reasonable person in the patient’s position, if warned of the risk, would be likely to attach significance to it, or if the medical practitioner is or should reasonably be aware that the particular patient, if warned of the risk, would be likely to attach significance to it.’
What information and advice is given to a patient depends on the individual circumstances of each case. However, in ME/CFS, it is arguable that a decline in function and health is one of those issues that one would find appropriate and sufficient information on.
https://www.facebook.com/MECFSLegalResources/posts/938174499716017?hc_location=ufi
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Even more news from the ME debate in Parliament as Ed Davey says its possible to suspend the NICE guidelines and in particular, giving patients the opportunity to take legal action over being harmed by GET.
Millions Missing Scotland June 23 at 1:12 PM ·
MP Sir Edward Davey makes too many excellent points in his compelling speech to quote them all, but here is one of the best:
“It is great that the NICE guidelines are to be reviewed, but…I find it quite scary that the current guidelines will be in place until October 2020…Far from helping [people], it makes them deteriorate. Indeed, I have a constituent who feels that the programme she was put through set her back two or three years. Real harm is being caused by some of the therapies recommended in the guidelines. If that is the evidence from ME sufferers…it is up to the Minister, working with the chief medical officer and others, to question whether the NICE guidelines should be suspended, at least with respect to GET…If that treatment is harming people, and if that continues until October 2020 there will, as I said in my intervention, be a case for those who are harmed to go to court and seek compensation"
https://www.facebook.com/meactionscot/videos/2083264828661267/
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Myalgic encephalomyelitis/chronic fatigue syndrome and the biopsychosocial model: a review of patient harm and distress in the medical encounter
https://www.tandfonline.com/doi/abs/10.1080/09638288.2018.1481149?journalCode=idre20
ME/CFS SPECIFIC DSP GUIDE NOW AVAILABLE June 2018
Whilst this has been a long time coming, ME/CFS Legal - Australia hopes that this first draft of an ME/CFS Specific Disability Support Pension Guide is of assistance to current and future DSP applications.
https://mecfslegalresources.weebly.com/uploads/1/3/2/3/13236676/dsp_guide_-_mecfs_v.2018.1.0.pdf​
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Law360 (June 1, 2018, 5:33 PM EDT) --
A New Jersey federal judge sided with a former Washington Post science reporter with chronic fatigue syndrome Thursday in his Employee Retirement Income Security Act suit against Prudential Insurance Company of America, which had dropped his short-term disability benefits and denied his bid for long-term ones. U.S. District Judge Katharine S. Hayden granted summary judgment to Brian Vastag, saying he was improperly denied short-term and long-term disability benefits that were payable under his employer’s health insurance plan. The judge said there was objective medical evidence in the...
https://www.law360.com/articles/1049513
DISABILITY INSURANCE and ME/CFS – Stacking the Odds for Success by Brent L. Handel J.D., Q.C.
“Stacking the odds in your favor in applying for disability insurance requires attention to detail and stamina to complete the application thoroughly. Unfortunately, people with ME/CFS do not have stamina so often applications are incomplete and thus unconvincing. It requires a great deal of work to assemble all the required documentation, and this is even more difficult, if not impossible, when you suffer from ME/CFS. It would not be good management of your medical condition to push through the application and further impair your health. Thus, it may be beneficial to enlist a family member or hire a disability agent or lawyer to assemble the required documents properly and completely for you to avoid an initial denial and to avoid having to go to court.”
The case of Schnoor v. Walgreen Income Protection Plan, 2013 U.S.Dist.LEXIS 114435 (W.D.Mich. Aug. 14, 2013) from the US provides a quality example of how important a treating doctor’s report is to the success of a claim.
In Schnoor the plaintiff’s matter was reviewed and rejected by four insurer doctor’s. The insurer, therefore gave greater weight to their own doctors. Schnoor’s Doctor was Dr Charles Lapp and she was also reviewed by two neuropsychologists. The Court was critical of the insurer, stating:
"Where, as here, the plan administrator does not offer a reasoned explanation for giving greater weight to the consulting physician, that the consulting physician does not examine the claimant and rejects as incredible the claimant's self-reported symptoms weighs heavily in favor of a finding that the administrator acted arbitrarily."
The Plaintiff also had a successful social security claim. The insurer could not demonstrate that this claim was unwarranted hence this “weighs in favor of a finding that the benefits determination was arbitrary and capricious."
The court rejected the argument of the insurer that the file reviews by four doctors was adequate justification for the claim denial. Instead, the court exposed the poor quality of the reviewing doctors' opinions, a stark contrast to the detailed narrative and rationale provided by the treating doctors, as well as the objective neuropsychological test findings supporting the claim and corroborating contemporaneous work records. The Social Security disability decision was also of major importance.
What are the lessons for an Australian case?
1. Doctor’s need to provide a quality history and narrative of the condition, it’s impact upon occupational duties, not only after, but during. In this case the specific role required accuracy and mistakes could cost lives;
2. Objective neuropsychological testing is of value;
3. The acceptance of the disability payments under social security can enhance a claims’ validity.
https://cases.justia.com/federal/district-courts/michigan/miwdce/1:2012cv00675/71019/23/0.pdf?ts=1411550676
The Importance of Credibility!!
In the article by Handle (below) the author emphasises the importance of credibility of symptom reporting and of activity reporting.
In Australia, the case of Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 200 ALR 447; (2003) 77 ALJR 1598 (3 September 2003) is the most significant in the area of CFS, ME/CFS and ME. This case specifically involves Q-Fever mediated CFS.
In the case of McIver v the National Mutual Life Association of Australasia Ltd [2006] VSC 437, the issue of credibility was ventilated further.
So how important is it? The attached is a briefing to Independent Medical Examiners from IMO. IMO makes it very clear that cases can rise and fall in inaccurate history.
But this is all about subjective evidence isn’t, I hear you say. I have objective evidence (eg SPECT, Tilt Table, MRI, CPET, mRNA gene expression) so surely video of me won’t damage my case? NOT TRUE! If you say you words like “never” and “impossible” and “cant do” - expect trouble. You need to be open and honest and identify what you can do and then qualify it with how it impacts you after, how often you do it, good versus bad, etc.
But I have brain fog and can’t remember!! As Whisprun demonstrates - the court didn’t take that into account. Yes, that’s wrong. It argued that the appellant had good history on other aspects - hence that there existed an inconsistency. So how is this overcome? Diaries of activities and impacts are a contemporaneous record. Provide it to your Doctors.
http://www.imo.net.au/images/ChronicFatigueSyndromeCaseNotes.pdf
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ME CFS Legal Resource - Australia
https://www.facebook.com/MECFSLegalResources/posts/829590430574425?hc_location=ufi
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Do I Have a Case?
On June 16, 2017, Dr. Eleanor Stein, Psychiatrist, and a Medical Advisor to the National ME/FM Action Network hosted a webinar, sponsored by the Network with the focus on disability.
One of the speakers, speaking on disability was James Ludwar, a Calgary Lawyers, licensed to practice in both Alberta and Saskatchewan. Mr. Ludwar is also on the Network's Lawyers' Referral List.
Mr. Ludwig's video is on the Network’s website under NEWS but we are bringing it again to your attention for those who did not see it. The information is important to be aware of, no matter which province or territory you live in.
[Initial consultation is FREE]. To view this video, please go to: ttps://www.youtube.com/watch?v=ykeEB7R1t88...
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May 2018
Dr Byron Hyde’s new book has a rather revealing chapter on insurance companies in which he reveals the use of retainers to corner all specialists within a specific Canadian city thereby ensuring they are all beholden to the insurer - and no patient can obtain a fair hearing. He additionally reveals the use of other incentives that escape scrutiny, yet reward the doctor for saving the insurer money. Corrupt to the core!!!
https://www.facebook.com/MECFSLegalResources/posts/823521134514688
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Former triathlete 'faked chronic fatigue to claim millions in insurance'
Charles Miley, from Rugby, told the High Court he cannot work and finds it hard to concentrate
From 2017
A high-flying financier who says he was poleaxed by chronic fatigue is battling accusations that he faked his symptoms to claim millions in insurance payouts.
Charles Miley says he cannot work and finds it hard to concentrate due to the “severe fatigue” which has plagued him since 2009. On bad days, the former triathlon competitor lacks the energy to get out of bed or quit his living room sofa, the High Court has heard. The former executive at investment bank Piper Jaffray Ltd says he can sometimes do little more than languish in his tracksuit, listening to the radio or watching TV. But Mr Miley has now been confronted with covertly-shot surveillance footage which insurers say shows him guzzling ale and propping up the bar at a beer festival. And Friends Life claim his account of his symptoms was “deliberately false” and that the footage confounds the sorry picture painted by Mr Miley.
The 51-year-old, from Rugby, said he hit an all-time low in 2010 when his illness became so debilitating he sometimes couldn’t even leave his home. “My wife, Rachel, would be out in the garden if it was a sunny day and call me outside, and I wouldn’t be able to do it,” he told the court in London. “There were times when I could barely speak,” he added. But Mr Miley is now locked in a bitter dispute with Friends Life, who claim he has faked his condition to cash in on a lucrative income protection policy.
The policy was taken out for Mr Miley by his employers and entitles him to 75 percent of his salary until retirement age if he is permanently unable to work. Mr Miley was Head of Institutional Equity Sales at Piper Jaffray - which has offices in the City of London - earning a £130,000 annual salary. Friends Life initially accepted his claim and paid out between 2009 and 2013 following a diagnosis of severe chronic fatigue syndrome.
https://www.coventrytelegraph.net/news/local-news/former-triathlete-faked-chronic-fatigue-12752212
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An MP is calling for a debate into one of the ‘biggest medical scandals’ of the 21st century
https://www.facebook.com/MECFSLegalResources/posts/818978391635629?hc_location=ufi
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In the UK May 15th, 2018
Legal aid being denied the majority of sickness benefit claimants, at same time as GPs are wrongly advised not to issue sick notes to those awaiting appeals.
"The result, as legal advice charity Zacchaeus 2000 Trust discovered, is claimants going hungry because they have no money for food. Claimants may also have to change to a new GP practice to try to find a doctor who will issue them with a sick note.
The DWP have offered no explanation whatsoever for the change in the wording of the letter, except that it was altered as a result of a ‘ministerial requirement’.
That it is a ministerial requirement that claimants be caused as much suffering as possible, regardless of the law, will probably come as no surprise to our readers."
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Via: Geoffrey Hallmann
If you have been ripped off by your bank or insurer due to your ME/CFS diagnosis, the time to act is NOW.
It may not impact your situation (it could) BUT it can help future victims !!!
Put your submission in now!! So that ME/CFS Legal Resources can do a top level submission - please forward a copy to mecfslegal@yahoo.com.au. Confidentiality is assured. Feel free to de-identify if you wish. With strength of numbers we can identify the key players and the excuses given. ME/CFS Legal will construct a submission and use strength of numbers to demonstrate a systemic problem across the banks and insurers. We know they don’t pay - let’s highlight the issue publicly in the biggest forum we will ever get.
https://financialservices.royalcommission.gov.au/Public-submissions/Pages/default.aspx
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