Doctors appeal $3.8 million medical negligence decision

Date: Mar 21, 2018

Two medical practitioners have appealed a NSW Supreme Court decision that ruled they were negligent during an operation that left a man paraplegic.

The plaintiff suffered from Noonan Syndrome – a genetic disorder with various symptoms, such as facial disfigurement, heart problems and developmental delays.

He required two operations to resolve breathing problems, but while the first was completed smoothly, the plaintiff suffered a spinal stroke during the second procedure.

Justice Ian Harrison felt the chief surgeon performing the operation and the attending anaesthetist were both negligent in failing to halt the surgery when the plaintiff's vital signs began to plummet. He awarded the plaintiff $3.8 million to cover his lifetime care costs and other expenses.

Why did the surgeons appeal?

The surgeons claimed the original judge erred in his decision by not giving adequate consideration to Section 5 O of the Civil Liability Act. Incidentally, this was one of the defences they relied upon during the first trial.

Section 5 O states that medical practitioners should not be found negligent if their actions were widely accepted as standard practice among similarly qualified peers.

After reviewing the evidence, the appellate judges returned their decision. The result saw one of the medical practitioner's negligence verdict overturned, while the other surgeon's was upheld – but with one judge dissenting.

Negligence of chief surgeon reassessed

The plaintiff's operation aimed to straighten his curved spine in an effort to alleviate breathing problems and other symptoms.

The man's condition began to deteriorate rapidly during the surgery, but the medical practitioners decided to continue despite the procedure still having two to four hours left to complete.

However, all three appellate judges agreed the chief surgeon was not at fault for the injuries the patient suffered. They acknowledged that it was the anaesthetist's job to monitor vital signs and inform the surgeon if the plaintiff's condition was worsening.

The judges noted that the chief surgeon halted the procedure immediately after he was told.

Anaesthetist still negligent

The claim of negligence against the anaesthetist was upheld, although one appellate judge disagreed with his peers.

"The decision to allow [the surgery] to continue for 30 minutes after [the anaesthetist] had sought help from two experienced anaesthetists, without success, involved more than an erroneous clinical judgment; the trial judge was correct to find a breach of duty of care," the judges explained.

While the appeal was upheld in some areas, the patient will still receive the $3.8 million compensation he was awarded in the original trial. Nevertheless, the case is an important reminder of how the appeals process works in medical negligence claims.

Ensuring you have expert legal advice is not only crucial for the original claim but also for any challenges to the decision that may occur. Contact Gerard Malouf & Partners Compensation, Medical Negligence & Will Dispute Lawyers to learn more about pursuing personal injury cases in Australia.

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