Kennedy v Malhotra [2024] NSWSC 576

Kennedy v Malhotra [2024] NSWSC 576

The Court rejected the plaintiff's primary allegation that the defendant told her cervical screening was unnecessary because she was not sexually active, preferring the defendant's evidence and contemporaneous records. On the alternative case, the Court found only limited failures: the defendant should have raised cervical screening earlier in the first half of 2018 and followed up more quickly after September 2018. The s 5O defence was not established for the causally relevant period because the defendant had not proved a widely accepted professional practice with which she complied. However, causation was not proved: the plaintiff repeatedly did not act on advice to undergo screening,...

Jurisdiction
Australia
Judgment Date
15 May 2024
Procedural Posture
Professional Negligence Action by a Patient Against a General Practitioner / Principal Judgment After Hearing
Outcome
Judgment for the defendant.
Legal Topics
['general Practitioner and Patient' 'cervical Screening' 'duty of Care and Breach' 'peer Professional Opinion Defence Under S 5 O of the Civil Liability Act 2002 (nsw)' 'causation Under S 5 D of the Civil Liability Act 2002 (nsw)' 'non Economic Loss and Economic Loss']
['negligence' 'medical Negligence' 'civil Liability' 'damages'] ['general Practitioner and Patient' 'cervical Screening' 'duty of Care and Breach' 'peer Professional Opinion Defence Under S 5 O of the Civil Liability Act 2002 (nsw)' 'causation Under S 5 D of the Civil Liability Act 2002 (nsw)' 'non Economic Loss and Economic Loss']

Case Brief

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Procedural Posture

Professional Negligence Action by a Patient Against a General Practitioner / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the defendant wrongly advised the plaintiff that a Pap smear or cervical screening test was unnecessary because she was not currently sexually active.' 'Whether the defendant breached her duty of care by failing to advise, remind, arrange, refer, or follow up cervical screening between 2014 and 2019.' 'Whether s 5O of the Civil Liability Act 2002 (NSW) provided a defence based on peer professional opinion.' 'Whether any breach caused the plaintiff to lose the opportunity to have cervical cancer or precancerous changes detected and treated in time.' 'What damages would have been assessed if liability had been established.']

Ratio Decidendi

The Court rejected the plaintiff's primary allegation that the defendant told her cervical screening was unnecessary because she was not sexually active, preferring the defendant's evidence and contemporaneous records. On the alternative case, the Court found only limited failures: the defendant should have raised cervical screening earlier in the first half of 2018 and followed up more quickly after September 2018. The s 5O defence was not established for the causally relevant period because the defendant had not proved a widely accepted professional practice with which she complied. However, causation was not proved: the plaintiff repeatedly did not act on advice to undergo screening,...

Court Disposition

Judgment for the defendant.

Orders

  • ['Judgment for the defendant.' "The plaintiff is to pay the defendant's costs." 'Grant liberty to apply should either party seek a variation of the costs order.']