Medical Negligence Cases: Australia
If you have suffered an injury due to negligence, call our legal team to find out about your rights to compensation under the law.
Below you will find outlines of various cases covering aspects of medical negligence law.
DUTY OF CARE
Rogers v Whittaker (1992) 175 CLR 479
The duty of care covers examination, diagnosis, treatment and the provision of medical information and advice.
Thomsen v Davison  Qd R 93
Duty of care in examinations for third parties. This case involved a regimental medical officer who failed to ascertain the plaintiff’s pathology results and advise the plaintiff as to what they revealed.
Albrighton v Royal Prince Alfred Hospital  2 NSWLR 542
A neurosurgeon who had been called upon by an orthopaedic surgeon for a second opinion, owed the patient a duty of care even though the neurosurgeon was not directly responsible for treating the patient.
Lowns v Woods (1996) Aust Torts Reports 81-376
In certain circumstances, a doctor may owe a duty of care to attend an emergency and treat a person, even though there is no pre-existing relationship with the injured person. In this case, a doctor was asked to attend to a person who was suffering from an epileptic fit within 300 metres of the doctor’s house. The doctor refused to assist. The person suffered brain damage and became quadriplegic. It was held that a duty of care existed.
Doctor owed a duty to advise the patient that her sexual partner was HIV positive after joint medical consultation the purpose of which was to have blood tests for HIV and other STDs.
Harriton v Stephens (2006) 226 CLR 52
The High Court determined that an action for wrongful life cannot be maintained in Australia.
BREACH OF DUTY OF CARE
The ultimate determination of the standard of care is left to the court to decide.
See: Rogers v Whittaker; Naxakis v Western General Hospital (1999) 197 CLR 269; Rosenberg v Percival (2001) 205 CLR 434.
Dobler v Kenneth Halverson; Dobler v Kurt Halverson (by his tutor)  NSWCA 335
The common law has been modified by statute law. Operation of s 5O defence, Civil Liability Act.
INFORMATION ON MATERIAL RISKS
Rogers v Whittaker (1992) 175 CLR 479 ; F v R (1983) 33 SASR 189; Rosenberg v Percival (2001) 205 CLR 434.
Duty of care to warn of material risks, and obligation to provide information on risks to which the particular patient, if warned of the risk, would likely to attach significance to this. There is a subjective test as well as an objective test.
SURGEON’S EXPERIENCE AND PERSONAL PERFORMANCE STATISTICS
Chappel v Hart (1998) 195 CLR 232
G, PA and C v Down  SASC 217
The specialist failed to to make it clear that the risk which he quoted as being 1 in 2000 was his own personal failure rate, where as the literature reported a rate of 1 in 500.
BREACH OF STANDARD OF CARE
Wyong Shire Council v Shirt (1980) 146 CLR 40
Matters relevant to determining whether there has been a breach in the standard of care include: whether a reasonable person would have foreseen the risk of injury; whether they reasonably responded to this risk; the magnitude of the risk; the probability of the risk occuring; the expense and difficulty of taking alleviating action.
In this particular case, the court did not accept an argument of inherent risk immunity . The trial judge did not accept that the risk of ureteric injury was inherent to colorectal surgery.
(Note that Civil Liability legislation has in some States a provision related to inherent risk immunity, but these provisions cannot be argued in information cases).
Breach of Duty of Care (Treatment; Misdiagnosis; Surgical Error; Referral; Follow-up)
Boehm v Deleuil  WADC 55; McGroder v Maguire  NSWCA 261.
Failure to refer patient to specialists.
McKay v McPherson  VCC 585
Misdiagnosis involving a failure to recognise symptoms of heart failure.
Den Elzen v Harris  WADC 106
Negligent failure to refer for CT scan which would have showed hydrocephalus.
Curtis v Queen Elizabeth Hospital  SADC 48
Failure to diagnose and treat meningitis.
Negligent performance of hysterectomy resulting in damage to patient’s ureter.
Kite v Malycha (1998) 71 SASR 321
Failure to follow-up on cytology report following biopsy and act on it, which resulted in failure to diagnose breast cancer.
Breach of Duty of Care (Information cases)
Olbourne v Wolf  NSWCA 141
Cosmetic surgeon failed to warn of infection and scarring risks from breast reduction surgery.
Surgeon failed to warn of risk of gastroparesis with antrectomy and vagotomy procedure.
The plaintiff bears the onus of proving causation on the balance of probabilities. Causation does not require certainty or precision.
The High Court in this case also disallowed recovery of damages for loss of a chance.
Elbourne v Gibbs  NSWCA 127
The court considered factors relating to causation in information cases. These include remoteness of risk; the patient’s desire for treatment; previous and later procedures undertaken; degree of faith in the doctor; the patient’s knowledge; the need for treatment and alternatives available.
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