Woman requests $100,000 interim payment from medical negligence claim

Date: Mar 08, 2018

A woman in the process of pursuing a medical negligence claim has urged NSW Supreme Court to compel the defendant to stump up a $100,000 interim payment.

The plaintiff said the money would go towards kidney dialysis that she alleged is only necessary because of the defendant's negligence.

The claim relates to an operation the woman underwent at Port Macquarie Private Hospital in order to remove a mass on her left kidney.

According to court documents, the surgeon who performed the procedure – the defendant – used ligaclips during the operation. These are surgical instruments that clamp off blood vessels.

Why is the woman pursuing compensation?

The plaintiff filed a medical negligence claim because she believed:

  1. The surgeon failed to correctly identify the right renal artery, which was supplying blood to her healthy kidney;
  2. He mistakenly applied ligaclips to the wrong renal artery;
  3. He failed to remove the ligaclips on the renal artery before closing the surgical wound; and
  4. He did not perform an adequate check of the wound before closing her up.

The ligaclips were not removed until a later date, by which time the plaintiff's right kidney had stopped functioning. She said she now requires kidney dialysis for the rest of her life.

The renal surgeon has challenged the claim, although he admits negligence on particulars three and four.

Are interim payments for medical negligence allowed?

Section 82 of the Civil Procedures Act 2005 (NSW) enables the court to order a defendant to give plaintiffs interim payments in cases where damages may be awarded.

This is only permitted when the defendant has admitted liability or the court is satisfied the plaintiff would receive compensation if the matter went to trial. Because the surgeon conceded he made mistakes in the above claim, Justice David Davies was asked to provide an order forcing the defendant to pay $100,000 as an interim payment.

However, the surgeon's legal team asked for a stipulation to be placed in the order that required the woman to use the money only for her dialysis treatment. Justice Davies rejected this request, pointing to precedent cases that showed interim payments could be used for any purpose the individual deems necessary, including legal costs.

The woman will now receive $100,000 from the defendant while she awaits a final verdict on her medical negligence claim.

Are you worried about the financial elements involved when pursuing damages? Please contact a no-win, no-fee lawyer at Gerard Malouf & Partners Compensation, Medical Negligence & Will Dispute Lawyers to find out how we can help.

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