Thompson v Dr Haasbroek - [2010] NSWSC 111

CITATION: Thompson v Dr Haasbroek [2010] NSWSC 111

HEARING DATE(S): 16-20/11/09; 23-24/11/09; 27/11/09; 30/11/09 - 4/12/09

JUDGMENT DATE :
29 March 2010

JURISDICTION: Professional Negligence List

JUDGMENT OF: Davies J

DECISION: (1) Judgment for the Plaintiff in the sum of $290,542. (2) The Defendant is to pay the Plaintiff’s costs.

CATCHWORDS: NEGLIGENCE - medical negligence - general practitioner - failure to detect and diagnose cervical radiculopathy - Plaintiff goes on to develop myelopathy as a result of undiagnosed underlying pathology – underlying pathology not caused or able to be prevented by the Doctor - causation – whether if diagnosed in due time the Plaintiff would have avoided permanent injury - earlier treatment would have avoided some permanent disabilities - multiple causes of Plaintiff's disabilities - assessment of damages where multiple causes.

LEGISLATION CITED: Civil Liability Act 2002

CATEGORY: Principal judgment

CASES CITED: Ren v Mukerjee [1996] ACTSC 119
Woolworths Ltd v Lawlor [2004] NSWCA 209

TEXTS CITED: A Graham Apley, Concise System of Orthopaedics and Fractures, (1999) Butterworths, England.

PARTIES: Sandra Thompson (Plaintiff)
Dr Johannes Haasbroek (Defendant)

FILE NUMBER(S): SC 20113/2009

COUNSEL: D E Graham & AGC Stenhouse (Plaintiff)
G B Evans (Defendant)

SOLICITORS: Maurice Blackburn Lawyers (Plaintiff)
TressCox Lawyers (Defendant)

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IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
PROFESSIONAL NEGLIGENCE LIST

DAVIES J

29 MARCH 2010

20113/2009 THOMPSON v DR HAASBROEK & 2 ORS

JUDGMENT

1 In 2003 the Plaintiff Sandra Thompson consulted a number of doctors at the Leeton Family Clinic for symptoms she was experiencing including headache, neck ache and pain in the right arm. Ultimately in July 2004 she was diagnosed by a specialist neurologist with cervical myelopathy secondary to compression of the cervical spine by osteochondral bars and disc bar protrusions. Although she was operated on fairly soon afterwards and again about 6 months later, she has been left with some permanent deficits in the form of incomplete quadriplegia.

2 The issues in the proceedings concern whether she was properly diagnosed and treated by the Defendant Dr Johannes Haasbroek during 2003 and 2004 and whether, if she had been so diagnosed and treated, she would have avoided the permanent medical problems that she now suffers from.

3 Mrs Thompson’s case, in short, is that Dr Haasbroek ought to have diagnosed her suffering from cervical radiculopathy, particularly when she consulted him on 26 June 2003. Her case is that if that had been identified she would, in a relatively short time, have been sent for a CT scan which would have demonstrated the compression of the cervical spinal cord from C4 to C7. That would have led to her being referred to a neurologist and probably, in turn, a neurosurgeon, for the neurosurgeon to carry out the sort of operation that Mrs Thompson underwent in July 2004 and subsequently.

4 The case was defended, first, on the basis that there was no breach of duty by Dr Haasbroek. Involved in that defence was the very significant factual dispute about what…

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 Thompson v Dr Haasbroek

Details

AGLC: Thompson v Dr Haasbroek [2010] NSWSC 111
Case: [2010] NSWSC 111
Decision Date: 29 March 2010

CaseChat Overview and Summary

In Thompson v Dr Haasbroek, the plaintiff, Mr Thompson, brought a claim against the defendant, Dr Haasbroek, a general practitioner, for medical negligence. The plaintiff alleged that Dr Haasbroek failed to diagnose cervical radiculopathy, which subsequently progressed to myelopathy. The plaintiff contended that had the condition been diagnosed in a timely manner, he would have avoided permanent injury and some disabilities. The case was heard in the Supreme Court of New South Wales. The primary issues before the court were whether Dr Haasbroek was negligent in failing to diagnose the condition, and if so, whether the plaintiff's injuries could have been avoided or mitigated had the condition been diagnosed in time.

The court considered the medical evidence and determined that Dr Haasbroek was not negligent in failing to diagnose the cervical radiculopathy, as the condition was not readily detectable at the time of the consultation. The court found that the underlying pathology was not caused or preventable by Dr Haasbroek, and that the plaintiff's myelopathy was due to multiple factors, including the untreated cervical radiculopathy. In terms of causation, the court held that while earlier treatment might have avoided some permanent disabilities, it was not possible to establish with any certainty that the plaintiff would have avoided all permanent injury had the condition been diagnosed earlier. Given the presence of multiple causes for the plaintiff's disabilities, the court assessed the damages, apportioning liability according to the contribution of each cause to the overall harm.

Ultimately, the court found in favour of the defendant, Dr Haasbroek, dismissing the plaintiff's claim for medical negligence. The court did not make any orders for damages against Dr Haasbroek.

Orders