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HEALTH & MEDICAL CASE LAW

CASE LAW INDEX

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Index

1. Medical Negligence Compensation Cases (including Wrongful Life, Failure to Warn, Loss of a Chance etc).
2. Extension of Time Applications, Interim Damages,  Costs Orders and other Procedural matters (Medical Negligence).
3. Disciplinary Cases.
4. Other Health Law (Guardianship, parens patriae, privacy, medical records etc).

NEWS FLASH Latest Court Cases:

Papa v Sullivan Nicolaides Pty Ltd [2010] QSC 364

The plaintiff patient had a mechanical heart valve – where as a consequence of this the plaintiff had to take anti-coagulant medication, Warfarin. The defendant did not tell the plaintiff, her general practitioner or her cardiologist that her Warfarin levels were below the target range – the plaintiff suffered a stroke – the defendant breached its duty of care to the plaintiff.

Held: Judgment for the plaintiff in the sum of $2,201,982.00.

Tabet v Gett [2010] HCA 12

Negligence – Medical negligence – Damage – Loss of chance – Appellant suffered irreversible brain damage – Respondent's delay in providing proper treatment breached duty of care owed to appellant – Where not established on balance of probabilities that breach caused any part of brain damage – Where breach at most caused loss of less than 50% chance of better outcome – Whether law of tort recognises or should recognise loss of chance of better outcome as damage giving rise to liability in negligence – Relevance of policy considerations concerning extension of liability in medical negligence cases.

The High Court of Australia upheld the NSW Court of Appeal decision affirming that the common law in Australia should not be altered to allow an award for damages for loss of a chance of a better medical outcome where the defendant's act or omission has deprived the injured party of the possibility (but not the probability) of the better medical outcome.

Hardwick v McSwiney (No 3) [2010] NSWSC 3 (12 January 2010)

Application for interim damages- order refused.

PRACTICE AND PROCEDURE – Civil Procedure Act 2005 – application for interim payment – medical negligence – failure to follow up after surgery for excision of suspicious tongue lesion – competing expert medical evidence on the acceptability or otherwise of the treatment provided - whether a comparison of the plaintiff's claim and the defence permitted a conclusion (i.e. satisfaction) that if the proceedings went to trial the plaintiff would obtain judgment for substantial damages against the defendant – where not possible to be satisfied – order refused.

George v Survery [2009] NSWSC 1348 (11 December 2009)

DAMAGES - medical negligence - failure to diagnose heart condition leading to heart transplant .

Outcome: Plaintiff awarded $776,095.79 plus legal costs.

Lentzner -v- Baumwol [2009] WADC 168 (6 November 2009)

Alleged medical negligence - Hernia surgery.

Result: Plaintiff's action dismissed.

Spring v Sydney South West Area Health Service [2009] NSWSC 420 (14 May 2009)

This is an application under the Uniform Civil Procedure Rules 2005 20.26, seeking an order that an offer made by the defendant in the principal proceedings be permitted to be withdrawn. As it happens, it was accepted during its currency but this is no impediment to make the order if it is otherwise appropriate.

DECISION:
The defendant is granted leave to withdraw the offer of compromise served on the plaintiff on 9 April 2009.
The withdrawal of the offer of compromise takes effect from 1 May 2009.

WRIGHT -v- WA COUNTRY HEALTH SERVICE [2009] WADC 46 (27 March 2009)

This is a claim for damages for personal injury caused by  medical negligence alleged to arise out of the plaintiff being discharged too early and sent home from the Accident and Emergency Department of the Broome Regional Hospital. When the plaintiff represented at the hospital two days later he was gravely ill.

Held: Judgment for the plaintiff. Damages agreed at $37,500.

Edwards v Kennedy & Ors [2009] VSC 74 (12 March 2009)

LIMITATIONS OF ACTIONS – Application for extension of time within which to bring action – Personal injury claim – Alleged  medical negligence by practitioners endorsing gender reassignment operation – Long period of delay – Failure of plaintiff to call witnesses to support explanation – Prejudice to defendants – Seriousness of injury and of alleged negligence – Exercise of discretion – Limitation of Actions Act 1958 (Vic) s 27K, L.

Decision: Plaintiff’s summons dated 19 August 2008, applying for an extension of time of the period of limitation applicable to his cause of action, be dismissed.

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