PHELPS v COSSETTO & Anor [2002] NSWSC 903

PHELPS v COSSETTO & Anor [2002] NSWSC 903

Dr Cossetto breached the standard of reasonable care and skill of an ordinary orthopaedic surgeon by failing, before obtaining consent, to inform himself adequately through Dr Ryan and to warn Mrs Phelps of the surgery-related risk of stroke, and by failing to advise that modification of the calliper was a realistic alternative to surgery. The Court accepted that, if properly warned and advised, Mrs Phelps would not have had the operation and would probably have pursued calliper modification successfully, so the breach caused her harm. Dr Ryan was not liable because, as cardiologist, he was entitled to expect the surgeon to advise on surgical risks and alternatives and was under no...

Jurisdiction
Australia
Judgment Date
01 October 2002
Procedural Posture
Professional Negligence Claim for Damages Arising From a Post Operative Stroke / Trial Judgment on Liability After Damages Were Agreed
Outcome
Verdict for Mrs Phelps against Dr Cossetto in the amount agreed; verdict for Dr Ryan.
Legal Topics
['breach of Professional Duty' 'warning of Risks of Surgery' 'informed Consent' 'advice About Alternatives to Surgery' 'causation' 'duties of Orthopaedic Surgeon and Cardiologist']
['torts' 'medical Negligence' 'professional Negligence'] ['breach of Professional Duty' 'warning of Risks of Surgery' 'informed Consent' 'advice About Alternatives to Surgery' 'causation' 'duties of Orthopaedic Surgeon and Cardiologist']

Case Brief

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Procedural Posture

Professional Negligence Claim for Damages Arising From a Post Operative Stroke / Trial Judgment on Liability After Damages Were Agreed

Legal Issues

  1. 1 ['Whether Dr Cossetto breached his duty by failing to inform Mrs Phelps that the lump need not be removed, that discomfort could be alleviated by fitting new callipers, that cessation of Warfarin and dipyridamole before, during and after surgery created a risk of stroke, and that the risk of stroke was more serious than the risk of bleeding from the operative wound.' 'Whether Dr Cossetto breached his duty by failing to refer Mrs Phelps to a prosthetist, performing an unnecessary operation, or advising surgery with major risks when he knew or ought to have known the lump was benign.' 'Whether any breach by Dr Cossetto caused the harm suffered, on the basis that Mrs Phelps would not have undergone surgery if properly advised.' 'Whether Dr Ryan breached his duty by failing to provide the pleaded information or by concurring in advice to undergo surgery with major risks when he knew or ought to have known the lump was benign.']

Ratio Decidendi

Dr Cossetto breached the standard of reasonable care and skill of an ordinary orthopaedic surgeon by failing, before obtaining consent, to inform himself adequately through Dr Ryan and to warn Mrs Phelps of the surgery-related risk of stroke, and by failing to advise that modification of the calliper was a realistic alternative to surgery. The Court accepted that, if properly warned and advised, Mrs Phelps would not have had the operation and would probably have pursued calliper modification successfully, so the breach caused her harm. Dr Ryan was not liable because, as cardiologist, he was entitled to expect the surgeon to advise on surgical risks and alternatives and was under no...

Court Disposition

Verdict for Mrs Phelps against Dr Cossetto in the amount agreed; verdict for Dr Ryan.

Orders

  • ['Verdict for Mrs Phelps against Dr Cossetto in the amount agreed.' 'Verdict for Dr Ryan.' 'Counsel may bring in short minutes giving effect to these orders and providing for costs.']