Rashidi v Holsman - [2020] VSC 413

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S ECI 2019 05827

NATALIE RASHIDI	Plaintiff
v
DRS MAX HOLSMAN and SUSANNE HOMOLKA constituting the Medical Panel pursuant to the Wrongs Act 1958 (Vic)	First Defendant
and
DR PREETI KHILLAN	Second Defendant
and
WESTERN HEALTH	Third Defendant

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JUDGE:	Keogh J
WHERE HELD:	Melbourne
DATE OF HEARING:	16 June 2020
DATE OF JUDGMENT:	8 July 2020
CASE MAY BE CITED AS:	Rashidi v Holsman & Ors
MEDIUM NEUTRAL CITATION:	[2020] VSC 413

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ADMINISTRATIVE LAW – Judicial review – Medical negligence – Assessment of impairment by Medical Panel – Threshold for recovery of damages for non-economic loss –Procedural fairness – Assessment of injury not reasonably anticipated on the referral materials – Panel’s opinion quashed – Medical question remitted to be determined in accordance with law – Wrongs Act 1958 (Vic), pt VBA.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	R Harper	Slater & Gordon Ltd Lawyers
For the First Defendant	No appearance
For the Second Defendant	B Petrie	Avant Law Pty Ltd
For the Third Defendant	A Clements QC and S Gold	Lander & Rogers Lawyers

HIS HONOUR:

The plaintiff issued proceedings in the County Court of Victoria claiming that labiaplasty surgery she underwent at a hospital operated by the third defendant (‘the surgery’) was negligently performed and resulted in her suffering injury, namely loss of the labia minora.

The second and third defendants, who are the defendants in the County Court proceeding, referred to a Medical Panel for determination the medical question as to whether the degree of impairment resulting from the alleged injury to the plaintiff satisfied the threshold level for recovery of non-economic loss damages under the Wrongs Act 1958 (Vic) (‘Wrongs Act’). In October 2019 the first defendant, which was the Medical Panel convened pursuant to the Wrongs Act (‘the Panel’), determined that the degree of whole person impairment resulting from the alleged injury did not satisfy the threshold level.

The plaintiff seeks to review the Panel determination on two grounds:

(a) there was a denial of procedural fairness, because the Panel made findings as to injury which were unexpected and could not fairly have been anticipated, without giving the plaintiff notice or a fair opportunity to be heard; and

(b) the Panel failed to assess impairment in accordance with pt VBA of the Wrongs Act by failing to attempt to resolve materially inconsistent findings as required by the American Medical Association’s Guides to the Evaluation of Permanent Impairment (4^th ed) (‘Guides’).

Background

The surgery was performed in February 2013.

Within weeks of the surgery the plaintiff complained that too much tissue was removed. She was reviewed at the hospital and by the second defendant, who assured her that the labia minora was trimmed to the extent needed.

Despite that assurance, the plaintiff remained concerned. In October 2016, she attended with GP Dr Moran, who noted:

History:
long discussion re labia.
went…

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 Rashidi v Holsman

Details

AGLC: Rashidi v Holsman [2020] VSC 413
Case: [2020] VSC 413
Decision Date: 8 July 2020

CaseChat Overview and Summary

In the case of Rashidi v Holsman, the applicant, Rashidi, sought judicial review of a decision made by the Medical Panel, which assessed the degree of impairment caused by the respondent, Holsman, a medical practitioner. The dispute arose from a medical negligence claim where the Panel had assessed the applicant's non-economic loss for permanent impairment. The matter was heard in the Supreme Court of Victoria.

The central legal issues before the court involved the procedural fairness of the Panel's assessment and whether the Panel had erred in its determination of the applicant's impairment degree. Specifically, the court had to consider whether the Panel's assessment was influenced by a medical question not reasonably anticipated on the referral materials, and whether the Panel's opinion should be quashed and the matter remitted for re-determination.

The court found that the Panel had failed to observe procedural fairness in its assessment of the applicant's impairment. The Panel had considered a medical question not reasonably anticipated on the referral materials, which led to an unfair assessment of the applicant's degree of impairment. Consequently, the Panel's opinion was quashed, and the matter was remitted for re-determination in accordance with the law. The court held that the Panel's assessment did not meet the required standards of procedural fairness under the Wrongs Act 1958 (Vic).

The final orders of the court included quashing the Panel's opinion and remitting the matter for re-determination by a properly constituted panel, ensuring adherence to the principles of procedural fairness and the relevant legislative framework. The court emphasised the importance of procedural fairness in medical assessments and the need for the Panel to strictly adhere to the referral materials when making its determinations.

Orders