Medical negligence battle rages on

Date: Sep 07, 2018

Undergoing major surgery is a stressful ordeal in itself, let alone considering incurring additional risks once under the knife.

This was the case for a plaintiff in a recent application bought in front of the District Court NSW.

Listening to the plaintiff

On 16 December 2014 the plaintiff underwent a gallbladder removal at Bankstown Lidcombe Hospital. Three days later, after the detection of a bile leak, the patient was taken back into theatre where it was confirmed the bile duct had been cut during the previous operation. The correct operation was performed to rectify the unintentional mistake.

Following the incident, the plaintiff filed proceedings against the hospital on 14 March 2017. He believed the hospital was negligent on advising the plaintiff of the possible risks, failing to diagnose the problems after the procedure and not having a hepatobiliary surgeon present when the open procedure was performed, among other particulars of negligence.

A first report was curated by a professor who made comments on the inadequacies of the hospital notes, followed by a second report from the hospital that also made similar remarks. Whilst the defendant admits that the bile duct was transected, how it occurred was not included in the notes, demonstrating the vagueness of the entire affair.

What did the judge decide

Such ambiguity led the Registrar to grant leave to the plaintiff to administer interrogatories on 15 January 2018. The hospital replied late February with a list of questions they objected to answer as well as the ones they were happy to provide answers to. However, these answers weren't included. Instead, the judge only received the amended form during the hearing, although changes were only minor. As a result of the continuing dispute between both parties, the plaintiff filed a notice seeking that the defendant answer questions originally served in the year.

However, after reviewing the interrogatories submitted by the plaintiff and the objections taken by the defendant, the judge concluded that both parties had a duty to amend their arguments. A number of questions the plaintiff administered were disallowed and deemed unnecessary, while the defendant was ordered to remove certain objections.

Therefore, the plaintiff is to serve an amended notice to answer interrogatories in accordance with the judge's orders, and the defendant to answer such notice no later than a month after.

Cases like the above demonstrate how tricky legal battles can be without the correct procedures in place and the right knowledge behind them. If you're dealing with a medical negligence claim, get in touch with the team at Gerard Malouf & Partners Compensation, Medical Negligence & Will Dispute Lawyers to find out how we can help. 

Call us now on 1800 004 878 to book a free appointment with one of my compensation experts, or email your enquiry.