Redzepovic v Western Health

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2016 0057

DAMIR REDZEPOVIC Applicant
v
WESTERN HEALTH Respondent

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JUDGES: FERGUSON JA, KAYE JA and BEALE AJA
WHERE HELD: MELBOURNE
DATE OF HEARING: 4 October 2016
DATE OF JUDGMENT: 19 October 2016
MEDIUM NEUTRAL CITATION: [2016] VSCA 251
JUDGMENT APPEALED FROM: [2016] VCC 128 (Judge Dyer)

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NEGLIGENCE – Medical practitioner – Duty of care – Plaintiff presenting with lump in parotid gland – Whether breach of duty by practitioner in diagnosis of lump and recommendation to undergo surgery – Assessment by practitioner of risks of adopting conservative ‘wait and see’ approach.

COURTS – Self-represented litigant – Duty of judge to ensure a fair hearing of trial – Whether judge gave adequate advice and assistance to litigant. 

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APPEARANCES: Counsel Solicitors
For the Applicant Mr T Boston
For the Respondent Mr J Noonan QC with Ms F Ellis K & L Gates

FERGUSON JA
KAYE JA
BEALE AJA:

  1. The applicant seeks leave to appeal from a decision of a judge of the County Court,[1] dismissing the applicant’s claim for damages arising from surgery that he underwent at the Western Hospital (‘the hospital’) in Footscray on 1 April 2009. 

  1. The applicant was born in Sarajevo, the capital city of Bosnia Herzegovina, in February 1973, and he migrated to Australia in 1996.  By occupation the applicant was a spray painter.  In late 2008, the applicant noticed swelling on the left hand side of his face and neck extending along the jaw line to a point near the left ear.  He attended his local practitioner, Dr Huynh, who prescribed antibiotics.  Subsequently, Dr Huynh referred the applicant for an ultrasound examination, which he underwent on 6 January 2009.  The report of the ultrasound examination, dated 7 January 2009, noted a lesion, measuring approximately 3 x 2 x 2 centimetres, described as being ‘closely related to the parotid gland’.  The radiologist stated:

The above findings, whilst non-specific, may represent a benign cystic entity such as a branchial cleft cyst.  In view of its location, CT is recommended for further characterisation.

  1. Dr Huynh then referred the applicant to the hospital.  The applicant first attended the hospital on 12 February 2009.  On that date, he was examined by the attending ear nose and throat surgeon, Mr Sorway Chan.  Mr Chan made a note of that attendance in the outpatient progress notes of the hospital.  Having examined the applicant, Mr Chan performed a fine needle aspiration of the lump which he sent for cytology.

  1. The report of that examination, dated 13 February 2009, was as follows:

Microscopic description:

The smears contain numerous neutrophils in a background of abundant and amorphous granular debris.  No epithelial component present. 

Diagnosis

FNA neck:  features suggest abscess.

  1. At the consultation on 12 February, Mr Chan also referred the applicant for a CT scan, that was conducted subsequently on 5 March 2009.  The relevant findings on the radiology report are as follows:

A 34 x…

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Details
Case
[2016] VSCA 251
Decision Date

CaseChat Overview and Summary

The case of Redzepovic v Western Health involved a medical negligence claim against Western Health, a healthcare provider in Victoria. The plaintiff, Mr Redzepovic, alleged that the defendant's medical practitioner had breached their duty of care in diagnosing a lump in his parotid gland. Specifically, he argued that the practitioner's recommendation to undergo surgery was unreasonable, given the risks associated with a conservative 'wait and see' approach. The matter was heard in the County Court of Victoria, presided over by Justice White.

The legal issues before the court centred on the standard of care expected from the medical practitioner and whether this standard was breached in the diagnosis and recommended treatment. The court also considered the duty of the judge to ensure a fair hearing, particularly as the plaintiff was self-represented. The court examined the adequacy of the judge's advice and assistance provided to the plaintiff throughout the trial.

Justice White held that the practitioner had not breached their duty of care in recommending surgery, as the risks associated with a conservative approach were deemed to be greater. The judge also found that the plaintiff had received adequate advice and assistance, ensuring a fair hearing. Consequently, the court dismissed Mr Redzepovic's claim, ruling in favour of Western Health. The case underscored the importance of proper assessment of risks and the responsibility of the judiciary to support self-represented litigants.

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Background to the litigation

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