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Tabet v Mansour

Tabet v Mansour

Case [2007] NSWSC 36 9 February 2007

Medical Negligence

Causation

Breach of Duty of Care

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CITATION: Tabet v Mansour & Anor [2007] NSWSC 36

HEARING DATE(S): 19-31 July, 1-3 August, 7-17 August, 24-31 August, 4-6 September, 18-21 September, 27 September, 9 November 2006

JUDGMENT DATE :
9 February 2007

JURISDICTION: Common Law Division
Professional Negligence List

JUDGMENT OF: Studdert J

DECISION: 1. On the plaintiff's claim against the first defendant, verdict and judgment for the first defendant. 2. On the plaintiff's claim against the second defendant, verdict and judgment for the plaintiff in the sum of $610,000. 3. I order that the plaintiff pay the first defendant's costs of the proceedings against the first defendant. 4. I order that the second defendant pay the plaintiff's costs of the plaintiff's proceedings against him.

CATCHWORDS: MEDICAL NEGLIGENCE CLAIM - six year old patient referred to first defendant paediatrician on 28 December 1990 with a history of headaches - hospital admission 29-31 December 1990 - varicella rash by time of discharge - whether first defendant negligent in treatment in failing to detect medulloblastoma - no CT scan to investigate cause of headaches. MEDICAL NEGLIGENCE CLAIM against second defendant - consulted as paediatrician on 11 January 1991 - resolving varicella rash - continuing headaches - provisional diagnosis of meningitis - hospital admission 11 January 1991 - lumbar puncture 13 January 1991 - deterioration 14 January 1991 - CT scan then reveals medulloblastoma - whether second defendant negligent in treatment - whether failure to arrange CT on 13 January 1991 causative of harm. MEDICAL NEGLIGENCE - lost chance of better outcome - entitlement to damages - assessment of value of lost chance. The plaintiff was a six year old child who was referred to the first defendant in his capacity as a specialist paediatrician on 28 December 1990 with complaints of headaches. The plaintiff was admitted to hospital on 29 December and remained there until 31 December 1990, by which time a varicella rash had appeared. The plaintiff was examined by the first defendant before her discharge from hospital on 31 December 1990, the last occasion on which the first defendant saw the plaintiff. The plaintiff consulted the second defendant, who was a specialist paediatrician on 11 January 1991, with resolving varicella rash and with complaint of continuing headaches. The plaintiff was admitted to hospital again on that date for investigation, the second defendant making a provisional diagnosis of meningitis. A lumbar puncture was performed on 13 January 1991 and on 14 January 1991 a CT was performed after the plaintiff's condition deteriorated. This procedure disclosed that the plaintiff had a medulloblastoma. The plaintiff was subsequently operated on for a subtotal removal of the medulloblastoma. The plaintiff later had extensive chemotherapy and radiotherapy. The treatment was successful but the plaintiff has been left severely disabled. The plaintiff claimed damages against each defendant, alleging negligence by each defendant in treatment and the failure to detect the medulloblastoma before it was detected. HELD - As to liability: (1) The claim against the first defendant failed - (2) The claim against the second…

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 Tabet v Mansour

Details

AGLC: Tabet v Mansour [2007] NSWSC 36
Case: [2007] NSWSC 36
Decision Date: 9 February 2007

CaseChat Overview and Summary

The plaintiff, a six-year-old child, brought a medical negligence claim against two defendants, both specialist paediatricians, following treatment for a medulloblastoma. The first defendant saw the plaintiff on 28 December 1990 after being referred with complaints of headaches. The plaintiff was admitted to hospital on 29 December and remained there until 31 December 1990, by which time a varicella rash had appeared. The plaintiff was examined by the first defendant before discharge. The plaintiff then consulted the second defendant on 11 January 1991, with a resolving varicella rash and continuing headaches. The plaintiff was admitted to hospital again on that date for investigation, with the second defendant making a provisional diagnosis of meningitis. A lumbar puncture was performed on 13 January 1991, and on 14 January 1991 a CT was performed after the plaintiff's condition deteriorated, revealing a medulloblastoma. The plaintiff subsequently underwent a subtotal removal of the medulloblastoma, followed by extensive chemotherapy and radiotherapy. The plaintiff was left severely disabled and claimed damages against the defendants, alleging negligence in their treatment and failure to detect the medulloblastoma.

The central issues before the court were whether each defendant was negligent in their treatment of the plaintiff, and if so, whether that negligence caused the plaintiff's harm. Specifically, the court had to determine whether the first defendant was negligent in failing to detect the medulloblastoma and whether the second defendant was negligent in not arranging for an urgent CT scan on 13 January 1991, and if either of these failures caused the plaintiff's harm. The court also had to determine whether the plaintiff was entitled to damages for the lost chance of a better outcome and avoidance of harm.

The court found that the claim against the first defendant failed as there was no negligence in failing to detect the medulloblastoma. However, the claim against the second defendant succeeded because there was a breach of duty of care in not arranging for an urgent CT scan on 13 January 1991. Despite this breach, it was not proven on the probabilities that the failure to arrange the CT scan was causative of the harm suffered by the plaintiff. The court determined that the plaintiff was entitled to damages for the lost chance of a better outcome and avoidance of the harm suffered on 14 January 1991. The court assessed the damages on the basis of the lost chance at $610,000. The court also considered the contributions to the plaintiff's brain damage and concluded that the damage caused on 14 January 1991 was not greater than twenty-five percent of the total damage, and that the loss of the chance of a better outcome was quantified as a forty percent chance.

The court ordered that the second defendant pay the plaintiff $610,000 in damages for the lost chance of a better outcome and avoidance of the harm suffered on 14 January 1991. The claim against the first defendant was dismissed.

Orders