Hawes v Holley [2008] NSWDC 147

Hawes v Holley [2008] NSWDC 147

The first defendant was not negligent because, on the accepted evidence, he found signs raising a reasonable suspicion of peritonitis when he examined the plaintiff on 21 January 2003, and neostigmine was contraindicated in that clinical setting due to the risk of bowel perforation. His conservative management followed by laparotomy when the plaintiff worsened was in accordance with acceptable professional standards of competent medical practice. To the extent necessary, the first defendant also established the s 5O defence because his treatment was widely accepted in Australia by peer professional opinion as competent professional practice.

Jurisdiction
Australia
Judgment Date
22 August 2008
Procedural Posture
Civil Professional Negligence Claim Against Medical Practitioners / Trial Judgment on Liability and Damages
Outcome
Verdict for the first defendant against the plaintiff; parties to be heard on costs before final orders. The action had settled as between the plaintiff and the second defendant, with a consent verdict entered for the second defendant against the plaintiff and each party to bear her own costs.
Legal Topics
['standard of Care for Medical Practitioners' 'civil Liability Act 2002 S 5 O Peer Professional Opinion Defence' 'acute Colonic Pseudo Obstruction' 'neostigmine Treatment' 'peritonitis as Contraindication to Pharmacological Treatment' 'quantification of Damages' 'loss of Chance']
['torts' 'professional Negligence' 'medical Negligence' 'civil Liability' 'damages'] ['standard of Care for Medical Practitioners' 'civil Liability Act 2002 S 5 O Peer Professional Opinion Defence' 'acute Colonic Pseudo Obstruction' 'neostigmine Treatment' 'peritonitis as Contraindication to Pharmacological Treatment' 'quantification of Damages' 'loss of Chance']

Case Brief

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Procedural Posture

Civil Professional Negligence Claim Against Medical Practitioners / Trial Judgment on Liability and Damages

Legal Issues

  1. 1 ['Whether the first defendant breached his duty of care by failing to diagnose acute colonic pseudo-obstruction rather than paralytic ileus.' 'Whether signs of peritonitis were present or reasonably suspected when the first defendant examined the plaintiff on 21 January 2003.' 'Whether the first defendant was negligent in not administering neostigmine before proceeding to laparotomy and defunctioning caecostomy.' 'Whether the first defendant acted in a manner widely accepted in Australia by peer professional opinion as competent professional practice under s 5O of the Civil Liability Act 2002.' 'If liability had been established, how damages should be quantified and reduced for loss of chance.']

Ratio Decidendi

The first defendant was not negligent because, on the accepted evidence, he found signs raising a reasonable suspicion of peritonitis when he examined the plaintiff on 21 January 2003, and neostigmine was contraindicated in that clinical setting due to the risk of bowel perforation. His conservative management followed by laparotomy when the plaintiff worsened was in accordance with acceptable professional standards of competent medical practice. To the extent necessary, the first defendant also established the s 5O defence because his treatment was widely accepted in Australia by peer professional opinion as competent professional practice.

Court Disposition

Verdict for the first defendant against the plaintiff; parties to be heard on costs before final orders. The action had settled as between the plaintiff and the second defendant, with a consent verdict entered for the second defendant against the plaintiff and each party to bear her own costs.

Orders

  • ['Verdict for the first defendant against the plaintiff.' 'Parties to be heard on costs before final orders are made.' 'To the extent necessary, if liability in negligence of the first defendant had been found, damages quantified in the amount of $95,005.18.']