Lorraine Brus v Australian Capital Territory

LORRAINE BRUS v AUSTRALIAN CAPITAL TERRITORY & ANOR [2007] ACTSC 83 (12 October 2007)

NEGLIGENCE – claim for medical negligence – plaintiff alleging prolapse of fallopian tube resulted from negligence during vaginal hysterectomy – post operative complications – whether surgeon in chief properly qualified – supervision of trainee surgeon – whether duty to provide public patient with choice of surgeon – issues of causation.
DAMAGES – pain and suffering – ongoing treatment – out of pocket expenses – economic loss.

Rosenberg v Percival (2001) 205 CLR 434

Jones v Dunkel (1959) 101 CLR 298

Chappel v Hart (1998) 195 CLR 232

Bonney’s Gynaecological Surgery (2004) Blackwell Publishing International, Monaghan, Naik and Lopes

No. SC 517 of 2003

Judge:     Connolly J
Supreme Court of the ACT

Date:      12 October 2007

IN THE SUPREME COURT OF THE       )
  )          No. SC 517 of 2003
AUSTRALIAN CAPITAL TERRITORY    )

BETWEEN:LORRAINE BRUS

Plaintiff

AND:AUSTRALIAN CAPITAL TERRITORY

First Defendant

AND:ROGER HEATON

Second Defendant

ORDER

Judge:  Connolly J
Date:  12 October 2007
Place:  Canberra

THE COURT ORDERS THAT:

1. There be judgment for the plaintiff against the first defendant in the sum of $82,019.77 with costs.

1. There be judgment for the second defendant.  I will hear the parties as to the costs of the second defendant.

1. This is a claim for damages for personal injuries said to arise from the negligent provision of medical services.  The plaintiff was admitted to the Canberra Hospital on 23 September 1998 for the purposes of surgical treatment for a vaginal hysterectomy. She was admitted as a public patient, and had been put down for elective surgery by her treating specialist, Dr Heaton.  She had been a long-term patient of Dr Heaton, who had delivered her children.  For the deliveries she had held private health insurance cover, and had received treatment by Dr Heaton as a private patient.  She did not hold private health insurance in 1998.

1. The procedure was performed.  There were post-operative complications resulting from the plaintiff extubating herself whilst recovering from the anaesthetic which delayed her stay in hospital, but she was discharged with an apparently successful procedure.  Unfortunately, she continued to complain of pain and discomfort, and had to return to various specialists for further investigation.  It subsequently emerged that her right fallopian tube had prolapsed into her vagina, and it is the plaintiff’s case that this occurred due to the incorporation of part of the fallopian tube during the suturing to close the vaginal vault at the conclusion of the operation.  There were a number of invasive and painful procedures that the plaintiff had to undergo before this was diagnosed and eventually surgically corrected in October 2000.  She still continued to suffer pain, and a further procedure was performed in February 2001 which resulted in the removal of a tubo-ovarian mass.

1. The plaintiff claims that all of these complications are attributable to the negligence of the defendants.  The defendants argue that, even if primary negligence be established in respect of the original surgery, the…