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Phelan v Melbourne Health

Phelan v Melbourne Health

Case [2019] VSCA 205 2 October 2019

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2019 0054

SEAN PHELAN	Applicant
v
MELBOURNE HEALTH	Respondent

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JUDGES:	TATE AP, KAYE JA and ZAMMIT AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	19 September 2019
DATE OF JUDGMENT:	2 October 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 205
JUDGMENT APPEALED FROM:	[2019] VCC 241 (Judge Tsalamandris)

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NEGLIGENCE – Medical negligence – Duty of care – Damage – Hospital’s duty to exercise reasonable care and skill in provision of professional advice and treatment – Whether breach of duty – Whether trial judge erred in finding that patient received advice about surgical options – Whether trial judge erred in finding that hospital’s medical practitioners had requisite expertise to provide treatment advice – Whether trial judge erred in finding loss was no more than loss of a mere chance of better medical outcome – Finding of primary fact – Evidence as to usual practice – Whether trial judge erred in weight given to evidence as to usual practice – Application for leave to appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr M Gronow QC with Ms V Holt (pro bono)
For the Respondent	Mr J Noonan QC with Ms N Hodgson	Lander & Rogers

TATE AP

KAYE JA
ZAMMIT AJA:

On 21 January 2013, the applicant sustained serious fractures to the calcaneal bones in each of his ankles as a result of a fall. He was conveyed by ambulance to the Royal Melbourne Hospital (‘the hospital’), which is and was conducted by the respondent. The applicant remained as an inpatient in the hospital between 21 January and 25 January, during which time he was treated conservatively. After he was discharged as an inpatient, he attended the respondent’s orthopaedic outpatient clinic on 29 January and 5 February. Subsequently, the applicant consulted a different surgeon, and he underwent successful surgery to his left ankle. However, he has been left with ongoing pain and restriction to movement in his right ankle, such that he has not been able to return to his usual occupation as a plumber.

Surgical treatment of a calcaneal fracture ordinarily involves an open reduction and internal fixation of the injury. It was the unanimous opinion of the orthopaedic surgeons who gave evidence in the case that there is a limited timeframe within which such surgery can be successfully performed. In particular, the surgery should be performed within four weeks, but at the most within five to six weeks, of the fracture being sustained.

In the proceeding, the applicant claimed that at no time did the respondent inform him of the option of surgical treatment for his calcaneal fractures. He further claimed that if he had been given that advice, he would have elected to undergo an operation to his right ankle within the necessary time period, and that if he had done so, he would have had a better outcome in respect of his right ankle. In response, the medical practitioners, who had been responsible for the treatment of…

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 Phelan v Melbourne Health

Details

AGLC: Phelan v Melbourne Health [2019] VSCA 205
Case: [2019] VSCA 205
Decision Date: 2 October 2019

CaseChat Overview and Summary

In the case of Phelan v Melbourne Health, the dispute involved claims of medical negligence against Melbourne Health, a public hospital. The plaintiff, Mr. Phelan, alleged that he suffered harm due to the hospital's failure to exercise reasonable care and skill in providing medical advice and treatment. The matter was heard in the Supreme Court of Victoria, where the primary judge made findings that the hospital's medical practitioners had the requisite expertise and that Mr. Phelan had been advised of his surgical options. The plaintiff sought to appeal these findings.

The primary legal issues revolved around whether the trial judge was correct in finding that Mr. Phelan received advice about his surgical options, that the hospital's medical practitioners possessed the necessary expertise, and that any loss suffered was no more than the loss of a mere chance of a better medical outcome. Additionally, the appeal questioned the weight the trial judge gave to evidence regarding usual practice in the medical community.

The court found that the trial judge did not err in concluding that Mr. Phelan had received advice about his surgical options, and that the hospital’s medical practitioners had the requisite expertise to provide such advice. The court held that the loss of a mere chance of a better medical outcome did not constitute compensable damage. Furthermore, the court affirmed the trial judge's consideration of evidence regarding usual practice, finding no error in the weight given to such evidence. Consequently, the appeal was dismissed.

No further orders were made as the appeal was dismissed.

Orders