Bergman v Haertsch

The plaintiff in Bergman v Haertsch sought damages from the defendant, a specialist medical practitioner, for professional negligence in the performance of gender reassignment surgery. The plaintiff, a male to female transsexual, had undergone surgery in 1994 to alter her physical sex from male to female. The plaintiff alleged that the defendant breached his duty of care in failing to warn her of material risks associated with the surgery, in performing the surgery negligently, and in breach of contractual terms. The plaintiff also sought to establish a cause of action in assault. The case was heard and determined in the Supreme Court of South Australia.

The central legal issues before the court were whether the defendant breached his duty of care by failing to adequately warn the plaintiff of the material risks associated with the surgery, whether the defendant breached his duty of care in the actual performance of the surgery, whether the doctrine of res ipsa loquitur applied to establish negligence, whether the defendant breached contractual terms, and whether a cause of action in assault was available to the plaintiff. The court had to consider the applicable standard of care owed by the defendant to the plaintiff, the disclosure of risks, the performance of the surgery, and the potential for alternative causes of action.

The court found that the defendant did breach his duty of care by failing to adequately warn the plaintiff of the material risks of the surgery. The court held that the doctrine of res ipsa loquitur did not apply. The court also found that the defendant breached his duty of care in the performance of the surgery. In terms of contract, the court found that the defendant breached contractual terms. Finally, the court found that a cause of action in assault was not available to the plaintiff.

The court awarded the plaintiff damages in the sum of $415,000 for the professional negligence and breach of contract. The court declined to award damages for the alleged assault.