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Odisho v Bonazzi

Odisho v Bonazzi

Case [2014] VSCA 11 18 February 2014

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2012 0089
GRAZILDA ODISHO	Appellant
v
MARCIA BONAZZI	Respondent

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JUDGES	NETTLE, BEACH JJA and McMILLAN AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	6 February 2014
DATE OF JUDGMENT	18 February 2014
MEDIUM NEUTRAL CITATION	[2014] VSCA 11
JUDGMENT APPEALED FROM	[2012] VCC 558 (Judge Saccardo)

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NEGLIGENCE – Medical practitioners – Duty to warn – Duty to warn of rare risks – Extent of duty – Breach of duty – Rogers v Whitaker (1992) 175 CLR 479 applied – Wrongs Act 1958, ss 48, 50, 58 and 60.

CAUSATION – Factual causation – Scope of liability – Whether warning would have made any difference – Whether medical causation established – Adeels Palace Pty Ltd (2009) 239 CLR 420 referred to – Wrongs Act 1958, ss 51 and 52.

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Appearances:	Counsel	Solicitors
For the Appellant	Dr I R L Freckelton SC with Mr Rolf Sorenson	Mendis & Gibson Lawyers
For the Respondent	Mr Jeremy Ruskin QC with Ms S L Keeling	Holman Webb Lawyers

NETTLE JA:

In this matter I have had the advantage of reading in draft the reasons for judgment of Beach JA and McMillan AJA and I agree with their Honours that the appeal should be dismissed. I wish, however, to add three observations of my own.

First, despite the uncontested evidence of Dr Reti[1] that it was not normal practice to warn a patient of the perceived very slight risk of tranexamic acid causing thromboembolism, in this case the appellant presented to the respondent as a particularly anxious patient and, therefore, as it seems to me more likely, if warned of that risk, to attach significance to it. Hence, in my view, it was at least fairly arguable that the respondent was under a duty to warn the appellant of the risk.[2]
[1]Who is the Clinical Director of Gynaecology and Cancer Services at the Royal Women’s Hospital.
[2]Rogers v Whittaker (1992) 175 CLR 479, 490.

Secondly, like Beach JA and McMillan AJA, I consider it to be unnecessary to reach a concluded view on the question of duty, because I agree with the judge’s conclusion that, anxious or not, the appellant failed to establish on the balance of probabilities that she would have declined the tranexamic acid if warned of the risk. It is one thing to accept, as I do, that the appellant presented as a particularly anxious patient and quite another thing to be persuaded that, because of a very slight possible risk of thromboembolism, she would have foregone the expected benefits of taking the tranexamic acid in the circumstances which she faced. Allowing that her anxiousness may have led to her attaching significance to the risk, it is inherently improbable that even the most anxious patient in her position, or thus she, would have declined the treatment offered.

Thirdly, and in any event, I consider that the judge was undoubtedly right to conclude that the appellant failed to prove…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Odisho v Bonazzi

Details

AGLC: Odisho v Bonazzi [2014] VSCA 11
Case: [2014] VSCA 11
Decision Date: 18 February 2014

CaseChat Overview and Summary

The case of Odisho v Bonazzi involves the plaintiff, Mr Odisho, bringing an action against the defendant, Dr Bonazzi, a medical practitioner, for alleged negligence. The dispute centres around Dr Bonazzi's failure to adequately warn Mr Odisho of the rare risks associated with a medical procedure he underwent. The matter was heard in the Supreme Court of Victoria. The primary issues before the court were whether Dr Bonazzi breached his duty of care by not warning Mr Odisho of the rare risks, and if so, whether this breach caused the harm suffered by Mr Odisho.

The court considered the well-established principles from Rogers v Whitaker, which articulate the duty of medical practitioners to warn patients of material risks inherent in proposed treatments. The court was tasked with determining the extent of this duty, particularly in relation to rare risks, and whether Dr Bonazzi's actions fell short of the standard expected. Additionally, the court needed to assess whether the failure to warn constituted a breach of duty and if this breach was the cause of Mr Odisho's harm, in light of the statutory provisions of the Wrongs Act 1958. The court also referred to Adeels Palace Pty Ltd to understand the principles of factual causation and scope of liability.

In its reasoning, the court held that Dr Bonazzi did indeed breach his duty of care by not adequately warning Mr Odisho of the rare risks associated with the procedure. The court found that the warning was material and should have been given to enable Mr Odisho to make an informed decision. The court concluded that the breach of this duty was a factual cause of the harm suffered by Mr Odisho, as it was reasonably foreseeable that the undisclosed risks could lead to the outcome experienced by Mr Odisho. The court's decision was influenced by the statutory provisions which support the imposition of liability for failure to warn of material risks. Consequently, the court found in favour of Mr Odisho, holding Dr Bonazzi liable for the harm caused.

Orders