Sanders v Dr Hillier - [2013] NSWDC 192

District Court

New South Wales

Medium Neutral Citation: Sanders v Dr Hillier [2013] NSWDC 192
Hearing dates: 27 - 30 May 2013; 11 June 2013; 25 - 26 July 2013
Decision date: 20 September 2013
Before: Gibson DCJ
Decision:
(1) Judgment for the defendant.
(2) Costs reserved.
(3) Liberty to apply in relation to costs.
(4) Exhibits retained for 28 days.

Catchwords: TORT - medical negligence - plaintiff suffers rare complication following orthopaedic surgery - defendant refers plaintiff to a physician rather than to a surgeon for diagnosis - whether the referral of the plaintiff to a physician and not to a surgeon was negligent - breach of duty of care - s 5O Civil Liability Act 2002 (NSW) - causation
Legislation Cited: Civil Liability Act 2002 (NSW), ss 5B, 5D, 5E and 5O
Cases Cited: Cox v Fellows [2013] NSWCA 206
Joseph Street Pty Ltd v Khay Tek Tan [2010] VSC 586
Lowns v Woods (1996) Aust Torts Reports 81-376
Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Mobbs v Kain (2009) 54 MVR 179
New South Wales v Fahy (2007) 232 CLR 486
Ramsay v Watson (1961) 108 CLR 642
Ren v Mukerjee [1996] ACTSC 119
Sarian v Elton [2011] NSWCA 123
Strong v Woolworths Ltd t/as Big W (2012) 246 CLR 182
Tabet v Gett (2010) 240 CLR 537
Vairy v Wyong Shire Council (2005) 223 CLR 422
Texts Cited: -
Category: Principal judgment
Parties: Plaintiff: Patricia Sanders
Defendant: Dr Terrence Hillier
Representation: Plaintiff: Mr A D Campbell
Defendant: Mr G B Evans
Plaintiff: Gerard Malouf & Partners
Defendant: DibbsBarker

File Number(s): 2011/404450
Publication restriction: None

Judgment

Introduction

The plaintiff by statement of claim filed on 15 December 2011 brings proceedings for damages for professional negligence against the defendant, an orthopaedic surgeon. The negligence was identified by counsel for the plaintiff, Mr Campbell, in his closing submissions, namely that the defendant had "failed to diagnose that she had a developing small bowel obstruction in a timely fashion" (T 416, plaintiff's submissions, paragraph 1). Before setting out the factual background to the claim, it is necessary to identify how the claim was initially framed, as the expert reports were prepared, and evidence given during the trial, on a different basis.

The case was opened to me on the basis that the defendant had caused a breach of the plaintiff's peritoneum to occur, either during or after spinal surgery he performed (T 7) and that, despite "significant" and "unusual" (T 5) symptoms, he failed to diagnose the plaintiff's medical condition while she was in hospital (T 7). When the plaintiff consulted the defendant after discharge, "again, Dr Hillier failed to diagnose what the problem actually was"; instead, he referred her to another doctor who "missed it as well" (T 6). A third doctor diagnosed a blockage and proposed performing a gastroscopy, but a fourth doctor said, "don't do that" (T 7) and performed emergency surgery to remove the blockage.

The 11 particulars of negligence in the statement…

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 Sanders v Dr Hillier

Details

AGLC: Sanders v Dr Hillier [2013] NSWDC 192
Case: [2013] NSWDC 192
Decision Date: 20 September 2013

CaseChat Overview and Summary

Sanders commenced proceedings against Dr Hillier, an orthopaedic surgeon, in the District Court of New South Wales, alleging that the defendant was negligent in the provision of medical services. The plaintiff suffered a rare complication following orthopaedic surgery, and the case centred on whether the defendant breached a duty of care by referring the plaintiff to a physician instead of a surgeon for diagnosis. The plaintiff contended that the referral was negligent and that this negligence led to the complication.

The court needed to decide whether Dr Hillier's decision to refer the plaintiff to a physician rather than a surgeon was negligent, and if so, whether that negligence caused the plaintiff's complication. The court considered the standard of care expected of an orthopaedic surgeon in similar circumstances and whether Dr Hillier's actions fell below that standard. It also examined whether the referral to a physician instead of a surgeon was a reasonable course of action and if the complication could have been avoided with a different referral.

The court found that Dr Hillier did not breach the duty of care owed to the plaintiff. The decision to refer the plaintiff to a physician was deemed reasonable under the circumstances, and there was no evidence that a referral to a surgeon would have led to a different outcome. The court concluded that the plaintiff's complication was not caused by any negligence on the part of Dr Hillier. The plaintiff's claim was dismissed, and judgment was entered in favour of the defendant.

The court ordered judgment for the defendant, with costs reserved and liberty to apply in relation to costs. The exhibits were retained for 28 days.

Orders

Orders of the court

(1) Judgment for the defendant.

(2) Costs reserved.

(3) Liberty to apply in relation to costs.

(4) Exhibits retained for 28 days.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Sanders v Dr Hillier [2013] NSWDC 192
Hearing dates:	27 - 30 May 2013; 11 June 2013; 25 - 26 July 2013
Decision date:	20 September 2013
Before:	Gibson DCJ
Decision:	(1) Judgment for the defendant. (2) Costs reserved. (3) Liberty to apply in relation to costs. (4) Exhibits retained for 28 days.
Catchwords:	TORT - medical negligence - plaintiff suffers rare complication following orthopaedic surgery - defendant refers plaintiff to a physician rather than to a surgeon for diagnosis - whether the referral of the plaintiff to a physician and not to a surgeon was negligent - breach of duty of care - s 5O Civil Liability Act 2002 (NSW) - causation
Legislation Cited:	Civil Liability Act 2002 (NSW), ss 5B, 5D, 5E and 5O
Cases Cited:	Cox v Fellows [2013] NSWCA 206 Joseph Street Pty Ltd v Khay Tek Tan [2010] VSC 586 Lowns v Woods (1996) Aust Torts Reports 81-376 Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705 Mobbs v Kain (2009) 54 MVR 179 New South Wales v Fahy (2007) 232 CLR 486 Ramsay v Watson (1961) 108 CLR 642 Ren v Mukerjee [1996] ACTSC 119 Sarian v Elton [2011] NSWCA 123 Strong v Woolworths Ltd t/as Big W (2012) 246 CLR 182 Tabet v Gett (2010) 240 CLR 537 Vairy v Wyong Shire Council (2005) 223 CLR 422
Texts Cited:	-
Category:	Principal judgment
Parties:	Plaintiff: Patricia Sanders Defendant: Dr Terrence Hillier
Representation:	Plaintiff: Mr A D Campbell Defendant: Mr G B Evans Plaintiff: Gerard Malouf & Partners Defendant: DibbsBarker
File Number(s):	2011/404450
Publication restriction:	None