Medical negligence law over the past year

10th Sep 2015

The last 12 months have produced some thought-provoking decisions in the courts as well as clarifying the law in areas where there was uncertainty. Looking back over the year, there are some obvious cases that spring to mind within medical negligence arena as being pivotal, such as the High Court Decision of Hunter & New England Local Health District v McKenna [2014] HCA 44, Waller v James [2015] NSWCA 232, and Mules v Ferguson [2015] QCA 5. Others of no less importance include Smythe v Burgman (No 2) [2015] NSWSC 298 and Morocz v Marshman [2015] NSWSC 325. This is by no means an exhaustive list. In my analysis I will seek to highlight what makes these cases stand out from the rest and elicit any apparent trends.

Hunter & New England Local Health District v McKenna

This case confirmed that health authorities’ duty of care does not extend to third parties. The main area of dispute, among others, was the allegation raised by the third parties that the hospital and doctor did not exercise reasonable professional care and skill in deciding to discharge the patient into the care of his friend for the journey to Victoria.

On 12 November 2014 the High Court unanimously allowed the appeal from a decision of the Court of Appeal. It held that Hunter and New England Local Health District and the treating doctor did not owe a duty of care to the relatives of a man killed by a mentally ill patient who had been discharged from the hospital into the man’s care.

Waller v James

The difficulty in demonstrating causation proved to be the undoing of this case. The focus was on normative and factual causation. The plaintiff child, Keeden Waller, was born on 10 August 2000. He was conceived through IVF and suffered a stroke four days following birth which left him permanently and profoundly disabled. The parents had consulted Dr James, a gynaecologist with an IVF speciality, to assist in conception. Keeden’s father suffered from anti- thrombin deficiency (ATD), a condition affecting a person’s normal clotting pattern, which can give rise to an increased risk of thrombosis. The parents alleged that the baby’s stroke was caused by the father’s thrombosis, which would have been revealed by genetic testing.

It was accepted that there was a breach on the part of Dr James in failing to explain the reason for the referral for genetic counselling. This case was, however, lost on causation. The Court of Appeal held that the stroke suffered by the child was coincidental, a normal risk of pregnancy and therefore not within the scope of risk created by the doctor’s breach of duty.

Mules v Ferguson

The link between breach and causation was established in this case and Peer Professional Defence as set out in s22 of the Civil Liability Act 2003 (Qld) (CLA) was also explored. The Appellant was diagnosed on 26 September 2008 with cryptococcal meningitis, resulting in loss of sight and hearing.

The case brought against the General Practitioner was, in essence, failure to undertake proper examination and make proper enquiries as to the appellant’s symptoms and that, had these been undertaken, the disease would have been diagnosed and correctly treated to avoid the personal injuries that ensued.

The patient lost the case in the first instance as it was concluded by the judge that the breach did not cause the patients injuries.

Considering the s22 CLA defence, the court held that the evidence did not establish that the defendant acted in a way that, at the time, was widely accepted by a significant number of respected practitioners. 

On 6 February 2015 the Qld Court of Appeal determined that the doctor’s breach of duty was causative of the appellant’s injuries. The doctor is currently seeking Special Leave to Appeal to the High Court, which will be heard on 16 October 2015.

Smythe v Burgman

This case touched on aspects of usual practice adopted amongst practitioners. The case involved a General Practitioner and his handling of a patient in failing to diagnose arterial ischaemia, notwithstanding atypical presentation, resulting in the amputation of the patient’s leg.

In determining the matter consideration was placed on evidence of usual practice, specifically inferences to be drawn from clinical notes, and the importance of the plaintiff’s compared with contemporaneous business records.

In this respect of this issue it was determined that many doctors take the approach of recording only those clinical findings which are abnormal and as this approach is commonly used by practitioners, it amounts to accepted practice. 

Morocz v Marshman

The threshold necessary to successfully establish failure to warn were explored. The patient suffered from 'sweaty palms' which she found to be embarrassing although not painful. In her initial attendance with Dr Marshman, he went through the risks and complications of the procedure and provided her with an “Information Brochure” which also set out the risk and warnings of the procedure. The patient subsequently alleged that Dr Marshman failed to warn her of the risk/complications and advise of non-surgical therapies.

The court held that the doctor:

  • Was entitled to take into account the patient’s presentation and ability to understand the information;
  • Had no obligation to refer in scientific terms to possible medical or psychological changes to the patient following a particular procedure;
  • Was not required to engage with claimant on current medical literature; and
  • Was not required to provide to the patient his or her own experience with procedures i.e. rates of complication.

The court therefore ruled that the patient had been adequately warned of the risks and that he doctor was not liable.


Although we tend to fixate as practitioners on causation as the mountain to overcome, the cases over the last 12 months highlight that cases can still fail on breach. These cases further illuminate the height of the bar which must be overcome for patient’s to succeed. The application to the High Court for special leave in respect of the Mules v Ferguson is certainly one to watch out for in the coming weeks.

Olamide Kowalik 
is a Senior Associate in the Medical Negligence department at Slater and Gordon Lawyers. She was admitted in 2003 and have practised in the areas of medical negligence, motor vehicle accidents, WorkCover and public liability. She is a member of the ALA and Qld Medico-Legal Society. She also has 3 boys, which include a set of twins, who keep her sharp! 


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Tags: Health, medicine and law Medical negligence Olamide Kowalik