Hart v Di Palma

[2007] QDC 377

DISTRICT COURT OF QUEENSLAND

CITATION:

Hart v Di Palma [2007] QDC 377

PARTIES:

HART

Applicant

v

DI PALMA

Respondent

FILE NO/S:

711/04

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

28 November 2007

DELIVERED AT:

Brisbane

HEARING DATE:

13 November 2007

JUDGE:

Searles DCJ

ORDER:

Plaintiff’s action dismissed with costs to be assessed.

CATCHWORDS:

Medical Negligence

COUNSEL:

Mr D. Keane counsel for the plaintiff

Mr G. Diehm counsel for the defendant

1. On 17 February 2003 the plaintiff underwent a mastectomy of her left breast in the Cairns Base Hospital. The surgeon was Dr Elston. Ms Hart was referred to Dr Elston by the defendant her GP who extracted a lump from her left breast in his surgery rooms on 5 February 2003. She claims that the defendant was negligent and in breach of his contract with her in his treatment of her and that as a result she has suffered loss and damage including the loss of her left breast. The issues to be determined then are whether the defendant was negligent and/or in breach of contract and if so what damage resulted from any such negligence or breach of contract.

1. The alleged negligence and breach of contract are said to be constituted by the following acts or omissions:-

(a)         Failure by the defendant to earlier diagnose the nature and extent of the lump in the plaintiff’s breast;

(b)         Performing the excision biopsy on the plaintiff without informing her of the risks attendant upon such surgery, with the result that any consent of the plaintiff to the surgery was not informed consent;

(c)         Performing the surgery in the defendant’s consulting rooms rather than in a hospital;

(d)        Performing the excision biopsy in the above circumstances thereby diminishing the plaintiff’s opportunity of having breast-conserving therapy rather than a mastectomy, thereby saving her left breast;

(e)         Negligently advising the plaintiff that she had only three months to live from 6 February 2003 unless she had her left breast removed.

The plaintiff says that as a result of the defendant’s conduct she had a mastectomy when breast-conservation surgery may have been available to her. She says further that she has been left with scarring and she endured bleeding during the surgery.

Plaintiff’s case

1. The defendant was the plaintiff’s general practitioner (GP) from in or around 10 February 2001 to 21 February 2003.[1] The relevant period is from the commencement date to 5 February 2003 when the defendant removed the lump in her breast. That procedure has been variously called an excision biopsy and lumpectomy. Its categorisation is not important.

   [1] Exhibit 7 – transcription of defendant’s notes of consultations with plaintiff.

1. The plaintiff could not recall specific dates of consultations with the defendant which is understandable given the passage of time. What she did say was that she had developed a lump in her breast and had told the defendant about it. She could not detail the number of times she had told him but said that it was quite…