Mediation order in medical negligence case by plaintiff’s tutor

Date: Jan 30, 2019

The NSW Supreme Court has referred the case of Rusan v St Vincent's Private Hospital for mediation and expedited any further hearings. What are the details and why has a mediator been appointed?

Important case information

The plaintiff, represented in this case by a tutor, was admitted to St Vincent's Private Hospital in Sydney for a medical procedure. The patient needed a tracheal intubation – placing a flexible plastic tube down the windpipe – to maintain an open airway while staff administered medication. This process was mishandled, leading the patient to deteriorate rapidly. All medical efforts to recover the victim's health have so far been in vain, and his weight has dropped to a dangerously low 50 kilograms.

This factor, coupled with the victim's course of painkillers and other medication, means he is legally incapacitated from entering as a plaintiff in this case. As such, a tutor (any person acting as a plaintiff on behalf of a victim under the Uniform Civil Procedure Rules 2005) initiated legal proceedings for him.

Who are the defendants?

St Vincent's Private Hospital are the trading entity of The Congregation of Religious Sisters of Charity of Australia. As the hospital is under their management, this religious organisation is the primary defendant in the case. The otolaryngologist (specialist dealing with conditions of the ear, nose, and throat) charged with the victim's medical care is the second defendant. However, the case was complicated by the entry of another doctor later on in proceedings. This addition of a third defendant led the judge to expedite proceedings.

Why has the Court ordered the plaintiff and defendants to try mediation?

The third defendant's late entry to proceedings has complicated the case. This is because any new hearing date is unlikely to give the new appellant sufficient time to gather materials for their defence. The defendant's legal representation echoed this point. Further, medicolegal experts need to examine the victim before any hearing can go ahead – delays to this means proceedings will also be delayed.

As such, the Court decided, referring to Section 26 of the NSW Civil Procedure Act 2005, that mediation was an appropriate step in the interim. All parties must agree on which mediator to use. The judge mandated that the session be conducted before mid-April 2019.

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