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HEALTH & MEDICAL CASE LAW

1. Medical Negligence Compensation Cases (including Wrongful Life, Failure to Warn, Loss of a Chance etc).

Brown v Simpson [2008] NSWDC 57 (22.04.08)

Oral surgeon performed wisdom tooth extraction. Infection followed. Plaintiff alleged negligent subsequent treatment. Medical Negligence action lost by plaintiff. Judgment in favour of defendant doctor.  

Wells v Juengling [2008] WADC 18 (08.02.08)

Defendant anaesthetist was negligent in failing to decompress the plaintiff's stomach using a nasogastric tube.

Dobler v Kenneth Halverson and Ors; Dobler v Kurt Halverson (by his tutor) [2007] NSWCA 335 

NEGLIGENCE -  medical negligence  - loss of consciousness events - whether general practitioner in breach of duty in failing to refer patient for an ECG - whether if had referred the ECG would have revealed condition from which patient later suffered cardiac arrest - operation of s 50 of Civil Liability Act - appellate review of findings of fact including as to expert evidence - no error in judge's findings.
Held: Appeal dismissed with costs.

Schultz v Bailey [2007] NSWCA 110 

APPEAL – fact – appellant unsuccessfully sought damages for professional negligence from the respondent general practitioner who had diagnosed the appellant’s delusional beliefs as ‘psychotic’ in nature – medication prescribed by the respondent caused catastrophic, but rare, side-effects – whether, on the primary facts that were, or should have been, found by Hall J, it was reasonable for the respondent to diagnose the appellant as suffering from a psychosis, or depression complicated by psychotic symptoms – difference between psychosis and anxiety or a phobic state
DECISION:
(a) Appeal allowed
(b) the judgment of Hall J set aside
(c) in lieu thereof, a judgment for Mr Schultz in the sum of $255,561.95, together with interest from 20 July 2006
(d) Dr Bailey to pay Mr Schultz’s costs of the trial on a party and party basis for work done up until 29 September 2005 and on an indemnity basis in respect of work done thereafter
(e) Dr Bailey to pay Mr Schultz’s costs of the appeal
(f) Dr Bailey to have a certificate under the Suitors’ Fund Act 1951 (NSW), if otherwise qualified.
See lower court case:
Schultz v. Bailey [2006] NSWSC 727
Patient repeatedly expressed anxiety about family history of cancer and the possibility that he had symptoms indicative of bowel cancer – general practitioner made arrangements with specialists for tests in relation to the symptoms – patient’s anxiety escalated – general practitioner diagnosed patient’s delusion beliefs as “psychotic” – general practitioner prescribed an anti-psychotic drug – patient suffered catastrophic but rare side-effects from the anti-psychotic drug – patient was hospitalised and underwent significant treatment for the side effects – whether the general practitioner was negligent in diagnosing psychosis. Conclusion- Doctor was not negligent. The defendant doctor was not in breach of her duty of care to the plaintiff.

Elayoubi BHNF Kolled v Zipser & 2 Ors [2007] NSWSC 587 

The plaintiff is the fifth child born to Tamam Kolled (“TK”). He was born on 13 October 1984 at Bankstown Hospital (“the hospital”). He suffers from spastic quadriplegia and intellectual disability. It is common ground that his condition is the result of deprivation of oxygen during the birth process consequent upon a uterine rupture....
"The plaintiff has failed to establish liability on the part of the first or second defendants. Accordingly there will be a verdict and judgment for the first and second defendants."

 
McDonald v Ludwig & Anor [2007] QSC 028

Where plaintiff was first defendants patient. Where plaintiff underwent operation for sterilisation. Where first defendant performed operation by placing filshie clips on plaintiff's fallopian tubes. where first defendant removed adhesions. where plaintiff's bowel perforated.

Tabet v Mansour V Anor [2007] NSWSC 36
MEDICAL NEGLIGENCE- whether negligent in treatment in failing to detect medulloblastoma no CT scan to investigate cause of headaches. Lost chance of better outcome entitlement to damages assessment of value of lost chance. The loss of the chance of a better outcome and avoidance of the harm suffered on 14 January 1991 was quantified as a forty percent chance. Damages were assessed on the loss of a chance basis at $610,000.

Mills v Lee & ors [2006] NSWSC 1031

Joshua Adam Mills by his tutor Leslie Mills v Effie Marjorie Lee and Philip George Lee Executors of the estate of the late Eric Bruce Lee, Dr PT Frost and Hospital Corporation Australia Pty Limited t/as The Hills Private Hospital. Judgment of: Hislop J.
Catchwords: Tort law, Medical negligence, Birth injury, No breach of duty, Causative link not established.
Panagiotopoulos v Rajendram [2006] NSWDC 34
Catchwords: MEDICAL NEGLIGENCE, claim in respect of psychiatric disorder arising out of death of plaintiff's wife due to cancer and her treatment prior to diagnosis of cancer, alleged failure of general practitioner to appreciate significance of results of tests undertaken by another general practitioner, alleged failure to give appropriate advice, failure to pass on test results to specialist to whom general practitioner referred plaintiff's wife, negligence, causation and "loss of chance" of prospect of cure in third party context, whether psychiatric disorder established. Conclusion: No breach in duty of care; causation not established; not satisfied plaintiff suffers recognisable psychiatric illness as a result of his wife’s death and/or the circumstances surrounding her death, including the medical treatment afforded to her.

Judgment of: Rein SC DCJ
[Lawlink]

Hills v. State of Queensland [2006] QCA 244
Catchwords: Damages - Measure and Remoteness of Damages in Actions for Tort - Measure Of Damages - Personal Injuries - where the plaintiff's birth involved an emergency caesarean in the circumstance of a foetal cardiac arrest - where the plaintiff suffered brain damage resulting in a type of cerebral palsy known as choreoathetoid - where the plaintiff claims damages for negligence against the State of Queensland - where the State of Queensland has admitted negligence - where the plaintiff was later diagnosed with Type 1 diabetes mellitus - where differing expert evidence on probable lifespan of plaintiff - where assessment of probable lifespan of plaintiff relevant to measure of damages. Plaintiff awarded $5,390,397.00 plus legal costs.
[Qld Supreme Court (PDF)]

Khan v Polyzois [2006] NSWCA 59
Delay in diagnosis; testicle had become necrotic and had to be removed. Loss of a testicle equates to 20% of most extreme case under Civil Liability Act NSW. The Court of Appeal decided that cases assessed below 15% of a most extreme case typically were soft tissue injuries which healed rapidly. General damages - (equating to $14,500). Past out of pocket expenses (agreed): $ 418.70.  Past wage loss- $ 2,704.00. TOTAL- $ 17,622.70.

Rufo v Hosking [2004] NSWCA 391 
Medical negligence - recoverability for loss of a less than 50% chance of avoiding spinal microfractures suffered in course of heavy-dosage treatment with corticosteroids against Lupus - breaches of duty of care by specialist paediatrician in substituting one corticosteroid for another so causing a heavier than the appropriate dosage and in failing to introduce a steroid sparer at the appropriate stage - more probable than not that even without these breaches microfractures would have occurred but appellant still lost a material chance that but for the negligence the fractures would not have occurred, or would not have occurred at the time or with their severity - comparison of all or nothing approach in causation and damages - causation issues - inapplicability to this situation of UK Fairchild approach to causation - relevance of expert evidence - difficulty of quantifying the lost chance - chance must be material and not speculative - relevance of possible pre-existing celiac condition in contributing to susceptibility to fractures and questions of evidentiary onus - observations on permissibility of loss of chance approach in medical negligence cases.

Finch v Rogers [2004] NSWSC 39 (13 February 2004)
CATCHWORDS: Professional negligence, breach of duty by doctor, causation of damage David Kirby J, Supreme Court of NSW

Bloodworth v The South Coast Regional Health Authority t/a Gold Coast Hospital and Anor [2004] NSWSC 234 revised - 23/04/2004
Negligently performed laparoscopic cholecystectomy resulting in brain damage.

PD v Dr Nicholas Harvey & 1 Ors [2003] NSWSC 487
Reported at: Not reported Appeal Proceedings: Harvey v PD [2004] NSWCA 97 Catchwords: Negligence medical practitioner scope and content of duty of care after joint consultation for sexually transmissable diseases.

Cattanach v Melchior [2003] HCA 38
Reported at: (2003) 215 CLR 1; (2003) 199 ALR 131; (2003) 77 ALJR 1312; (2003) Aust Torts Reports 81-704 Catchwords: Negligence - Medical negligence - Negligent advice following sterilisation procedure - Birth of child - Damages - Whether damages recoverable for past and ...

 Hancock v State of Queensland [2002] QSC 027
Plaintiff medical patient pregnant after sterilisation procedure — whether procedure was performed with reasonable skill and care.

Gavalas v Singh [2001] VSCA 23 (22 March 2001)
Failure to diagnose brain tumour - Lost chance or opportunity of better outcome - Issues not raised at trial - Compensation for lost chance unreasonably low.

Brown v Willington Ors [2001] ACTSC 100 (24 October 2001)
Fine needle biopsy performed after subsequent ultrasound examination - whether pathologist negligent in examining slides of aspirate taken from nodule on plaintiff's breast Pplaintiff terminally ill - evidence that life may have been extended by prompt treatment - damages for loss of the chance of extended life span - suggested financial losses considered - principle that damages for loss of expectation of life should be modest distinguished.

HILLIER & CARNEY v LUCAS No. SCGRG-94-694 [2000] SASC 331 (24 October 2000)
Negligent orthopaedic surgery; sacral screw too deep.

Simpson v Diamond & Anor [2001] NSWSC 925
Negligent management of labour resulting in baby suffering brain damage/cerebral palsy.

Reid v Basson [2000] QSC 310 (8 September 2000)
Plaintiff underwent medical procedure to remove lymph node from neck. Plaintiff's occipital nerves severed during procedure.

MARINKO v MASRI [1999] NSWCA 364
The plaintiff's wife suffered irreversible brain damage following termination of pregnancy carried out by the defendant doctor.

Naxakis v Western General Hospital [1999] HCA 22
Reported at: (1999) 197 CLR 269; (1999) 162 ALR 540; (1999) 73 ALJR 782; (1999) 9 Leg Rep 2 Catchwords: Negligence - Professional negligence - Medical practitioners - Standard of care.

McInnes v Ahluwalia [1999] NSWSC 81
Failure to diagnose bilateral hip dysplasia.

Wilson v State of Tasmania (1999) TASSC 145.
Administration of drug overdose (Anginine).

Loveday v Austin Hospital & Ors (VIC). [1999] VSC 180
Unnecessary removal of a uterus

MANN & ORS v FLINDERS MEDICAL CENTRE No. SCGRG-96-2351 Judgment No. S236 [1999] SASC 236 (4 June 1999)
 Failure to diagnose bacterial endocarditis.

Southern Regional Health Board v Grimsey; FCA 89/1998 (TAS).
Baby suffered brain damage caused by wrong drug being administered to her mother shortly before birth. The drug caused a long contraction of her mothers' uterus which cut off the blood supply (and hence the oxygen supply) to the baby's brain.

Tucker v Hospital Corporation Australia Pty Ltd & Ors Matter No 12575/92 [1998] NSWSC 37 (18 February 1998
Inadequate pain relief during caesarian section.

Lunn v Giblin [1998] NTSC 56 (NT).
Negligent attempted manual removal of placenta.

Wolf v Punitham 29.05.98; Supreme Court NT.
Attendance at clinic for Pap Smear. Test results indicated carcinoma cells. Failure to communicate information to patient. 14 month delay in receipt of results. Consequent need to undergo full hysterectomy.

Kite v Malycha 10.06.1998 (SA).
 Misdiagnosis; failure by surgeon to inform patient of malignant breast tumour.

LAMPHUD MARCHLEWSKI, ROMAN MARCHLEWSKI and DELORES MARCHLEWSKI (by her next friend LAMPHUD MARCHLEWSKI) v HUNTER AREA HEALTH SERVICE (NSW)
Death of 4 week old baby. Death conceded to have been caused by negligence.

Tweedale v Herron & Ors (NSW) 23.04.1997. See also Crawford v Bailey 17289/80 NSW.
Brain damage and depression sustained during sleep therapy and electroconvulsive therapy at Chelmsford Private Hospital.

TOMISLAV LIPOVAC bhnf MARIA LIPOVAC v. HAMILTON HOLDINGS PTY LTD, PETER BLACK, TOM GAVRANIC AND THE AUSTRALIAN CAPITAL TERRITORY No. SC501 of 1993 Number of pages - 87 Negligence - Expert Evidence - Damages [1996] ACTSC 98 (13 September 1996)
Negligent administration of aminophylline and/or phenobarbitone leading to the respiratory compromise of the plaintiff which in combination resulted in hypoxic severe permanent brain damage.

A M Strelec v D Nelson & 2 Ors (90012401) (NSW).
Baby suffered traction injury to spinal cord and died 5 weeks later.

Tran v Lam (NSW) No. 20359 of 1996.
 Failure to diagnose breast cancer.

Harwood v Gayler & Cleland [1996] QCA 461 (1 November 1996)
Appellant underwent spinal fusion. Anesthetist left arm up. Ulnar neuritis developed. Reflex sympathetic dystrophy developed as a result of corrective surgery.

Loo v Harbord Administration Pty LTD (Trading as North Harbour Private Hospital) 14605/86) NSW.
Plaintiff aged 1 yr, 10 months. Admitted to hospital for cauterisation of nose bleeds. Left in recovery unsupervised. Suffered cardiac arrest.

Sturch v Willmott [1995] QCA 521 (22 November 1995)
Negligent failure of doctor to diagnose bowel cancer.

‘Failure to Warn’ (Medical Negligence cases)

ELBOURNE v GIBBS [2006] NSWCA 127 (24 May 2006)
NEGLIGENCE – duty of care owed by doctor to patient – doctor failed to warn patient of material risks in operation – risks materialised – whether doctor had duty to warn patient of risks. NEGLIGENCE – causation – whether trial judge made finding in relation to causation – whether breach of duty by failure to warn caused injury – whether the plaintiff needed to only establish a prima facie case of causation in the absence of a more plausible contrary inference.

Rosenberg v Percival - [2001] HCA 18
 Reported at: (2001) 205 CLR 434; (2001) 178 ALR 577; (2001) 75 ALJR 734; (2001) 22(7) Leg Rep 11; (2001) Aust Torts Reports 81-605 Catchwords: Negligence - Breach of duty - Surgeon's duty to warn of material risk in proposed surgery - Identification of the material risk…

Chappel v Hart [1998] HCA 55
 Catchwords: Negligence - Causation - Failure to warn of inherent risk of operation about which patient had specifically inquired.

Rogers v Whitaker (1992) 175 CLR 479
Reported at: (1992) 175 CLR 479; (1992) 109 ALR 625; (1992) 67 ALJR 47; (1992) Aust Torts Reports 81-189 Catchwords: Negligence - Professional negligence - Medical practitioners - Duty to warn patient of risk of medical treatment
"Wrongful Life"

Harriton v Stephens [2006] HCA 15 Wrongful life - Birth of severely disabled child - Agreed for the purposes of separate questions at first instance that the respondent doctor failed to diagnose the mother's rubella infection during pregnancy - Doctor failed to warn the mother of the risk of serious disability as a consequence of the rubella infection - Whether the appellant child born with disabilities can recover from the doctor. Conclusion-the appellant (child) does not have a cause of action against the respondent on the agreed facts.

Waller v James; Waller v Hoolahan [2006] HCA 16 (9 May 2006) Wrongful life - Agreed for the purposes of separate questions at first instance that respondents negligently failed during in vitro fertilisation (IVF) program and antenatal care to investigate and advise or warn parents in relation to genetic condition of the father where the condition posed a risk to the appellant child - Child conceived with inherited genetic condition - Child suffered serious disabilities as a result of the inherited genetic condition - Whether child can recover damages from the respondents

Harriton v Stephens [2002] NSWSC 461
(Wrongful Life) Rubella during pregnancy whether duty of care owed by the medical practitioner attending on mother to child subsequently born if so, content of duty child born profoundly disabled due to rubella virus whether breach of ..

Waller v James [2002] NSWSC 462
(Wrongful Life) Parents undergo IVF procedure parent with AT3 deficiency failure by those conducting programme to investigate and to advise parents in relation to that AT3 deficiency whether duty of care owed by those conducting IVF ...

Edwards v Blomeley [2002] NSWSC 460
Reported at: Not yet reported Catchwords: NEGLIGENCE failed vasectomy whether duty of care owed by medical practitioner performing procedure to child subsequently conceived if so, content of duty child born disabled whether breach of duty to child causation of disabilities ...

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