Carney v Newton: expert evidence about the standard of clinical notes

In Carney v Newton [2006] TASSC 4 the Tasmanian Supreme Court heard a claim that the defendant breached his duty of care by failing to properly diagnose and treat a node positive carcinoma in the plaintiff's breast tissue. At trial, argument turned on the actual dialogue that took place during the initial consultation, with significant reliance on the clinical notes of the defendant. The court gave considerable weight to "expert" witnesses in ascertaining the acceptability of the defendant's conduct concerning the maintenance and interpretation of his clinical notes. This raises important questions in relation to proof of quality of medical records as part of the current professional standard of care, as modified by recent legislation in most jurisdictions.     

The link between dyslexic traits, executive functioning, impulsivity and social self-esteem among an offender and non-offender sample

PURPOSE: The current study had two core aims; first to explore the link between dyslexic traits and other aspects of functioning among a sample of offenders and non-offenders (students); and, second, to explore if dyslexic traits were over-represented among offenders. A subsidiary aim was to explore if the results were influenced by an offender's current index offence (i.e. violent versus non-violent). METHOD: Ninety-two adult male participants took part: sixty offenders and thirty-two non-offenders. All completed a structured interview assessing dyslexic traits, namely the Dyslexia Adult Screening Test battery (DAST: Fawcett and Nicholson, 1998). Participants also completed a measure of executive functioning (Benton Word Fluency Test, Benton, A. (1968) Differential behavioural effects in frontal lobe disease. Neuropsychologica, 6, 53-60), impulsivity (Barratt Impulsiveness Scale: BIS-II, Barratt, E.S. (1994), Impulsiveness and Aggression. In J. Monahan and H.J. Steadman (Eds.), Violence and Mental Disorder: Developments in Risk Assessment (pp.61-79). Chicago: University of Chicago Press.) and social self-esteem (Texas Social Behavior Inventory: TSBI, Helmreich and Stapp, 1974). RESULTS: Offenders presented with more dyslexic traits than non-offenders, with those with violent index offences presenting with more traits than those with non-violent index offences. Offenders performed poorly on assessments of executive functioning when compared with non-offenders. Dyslexic traits were predicted most significantly by executive functioning difficulties followed by decreased social self-esteem. There was a trend for increased impulsivity to correlate with increased dyslexic traits. Dyslexic traits were also predictive of membership to the offender group whereas impulsivity, executive functioning or social self-esteem was not. CONCLUSION: Preliminary evidence is provided for increased dyslexic traits among offenders compared to non-offenders. The study highlights the correlates of dyslexic traits. The implications of these findings for future research are outlined.     

Abandoning the common law: medical negligence, genetic tests and wrongful life in the Australian High Court

The Australian High Court recently found that the common law could allow parents to claim tortious damages when medical negligence was proven to have led to the birth of an unplanned, but healthy, baby (Cattanach v Melchior (2003) 215 CLR 1). In Harriton v Stephens (2006) 80 ALJR 791; [2006] HCA 15 and Waller v James; Waller v Hoolahan (2006) 80 ALJR 846; [2006] HCA 16 the High Court in a six-to-one decision (Kirby J dissenting) decided that no such claim could be made by a child when medical negligence in failing to order an in utero genetic test caused the child severe disability. In an era when almost all pregnancies will soon require patented fetal genetic tests as part of the professional standard of care, the High Court, by barring so-called "wrongful life" (better termed "wrongful suffering") claims, may have created a partial immunity from suit for their corporate manufacturers and the doctors who administer them. What lessons can be learnt from this case about how the Australian High Court is, or should be, approaching medical negligence cases and its role as guardian of the Australian common law?