Goran Petrovic v Dr Anthony Johnson

[2017] NSWDC 205

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Goran Petrovic v Dr Anthony Johnson [2017] NSWDC 205
Hearing dates:	5 June 2017; 6 June 2017; 7 June 2017; 14 June 2017; 15 June 2017
Date of orders:	04 August 2017
Decision date:	04 August 2017
Jurisdiction:	Civil
Before:	Montgomery DCJ
Decision:	(1)   Judgment for the defendant against the plaintiff  (2)   Plaintiff to pay defendant’s costs
Catchwords:	medical negligence – ss 5B, 5D and 5O Civil Liability Act 2012 – referral for surgery – differential diagnosis lung cancer
Legislation Cited:	Civil Liability Act 2012
Cases Cited:	Jones v Dunkel (1959) 101 CLR 298; Badenach v Calvert [2016] HCA 18; Mahony v J Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522
Category:	Principal judgment
Parties:	Mr Goran Petrovic (Plaintiff) Dr Anthony Johnson (Defendant)
Representation:	Counsel: Mr Chris Micali (Plaintiff) Mr Mark Walsh SC (Defendant)   Solicitors: Premier Law (Plaintiff) Norton Rose Fulbright (Defendant)
File Number(s):	2015/00060269
Publication restriction:	None

Judgment

Introduction

1. Mr Goran Petrovic (the plaintiff) sues the defendant for compensation for his loss alleged to have resulted from Dr Anthony Johnson’s (the defendant’s) negligent referral of the plaintiff to a specialist cardiothoracic surgeon (Associate Professor French). On the plaintiff’s case he was referred by the defendant for surgery.

2. The defendant is a specialist respiratory thoracic physician the plaintiff consulted on 10, 17 and 19 July 2012 on referral from the plaintiff’s general practitioner Dr Genua. The defendant referred the plaintiff to Associate Professor French, cardiothoracic surgeon, for treatment of a lung mass following the defendant’s diagnosis of Stage II large cell lung cancer, based on clinical assessment and medical investigations performed up to 19 July 2012.

3. The plaintiff underwent left lower lobectomy and lymph node dissection surgery on 4 September 2012 performed by Associate Professor French. Post-surgery, analysis of the tissue dissected found that there was no cancer.

4. When commenced by Statement of Claim filed 26 February 2015, the proceedings named Associate Professor French as second defendant. The case was brought against both the defendant and Associate Professor French alleging, in general terms: negligently bringing the plaintiff to surgery removing part of his lung for treatment for cancer when in fact there was none. That central factual scenario was pleaded in part of the Statement of Claim as follows:

28. The Plaintiff did not, at any time prior to the Lobectomy, have a malignancy in his left lung.

29. At no time between 19 July 2012 and the Lobectomy did the First or Second Defendant inform the Plaintiff of a potential differential diagnosis.

30. At no time between 19 July 2012 and the Lobectomy did the First or Second Defendant inform the Plaintiff that the diagnosis of malignant lung tumour was uncertain.

31. At no time between 19 July 2012 and the Lobectomy did the First or Second Defendant inform the Plaintiff of the option to undergo further diagnostic tests before proceeding to the Lobectomy.

32. At no time between 19 July 2012 and…