Melchior and Ors v Sydney Adventist Hospital Ltd and Anor [2008] NSWSC 1282

Melchior and Ors v Sydney Adventist Hospital Ltd and Anor [2008] NSWSC 1282

The standard professional practice in Australia in 2004 for Achilles tendon repair surgery did not require routine prescription or administration of LMWH such as Clexane for more than the patient’s hospital stay, and in many cases not at all. There was no obligation, based on the medical literature or peer practice, to give Clexane prophylaxis in this context. Even if Dr Newman breached a duty by not ensuring a single dose was administered, there was no evidence on the balance of probabilities that such a failure caused or would have prevented the deceased's fatal pulmonary embolism 27 days post-surgery. Therefore, judgment must be for the defendants.

Jurisdiction
Australia
Judgment Date
09 December 2008
Procedural Posture
Medical Negligence Civil / Principal Judgment Liability Determined Separately
Outcome
Judgment for the defendants
Legal Topics
['duty of Care' 'breach of Duty' 'causation' 'professional Negligence' 'duty to Warn' 'application of Civil Liability Act 2002' 'clinical Guidelines' 'prophylaxis' 'standard of Care for Professionals']
['medical Negligence' 'tort Law'] ['duty of Care' 'breach of Duty' 'causation' 'professional Negligence' 'duty to Warn' 'application of Civil Liability Act 2002' 'clinical Guidelines' 'prophylaxis' 'standard of Care for Professionals']

Case Brief

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Procedural Posture

Medical Negligence Civil / Principal Judgment Liability Determined Separately

Legal Issues

  1. 1 ['Whether the surgeon and hospital owed a duty to administer anticoagulant prophylaxis after Achilles tendon repair' 'Whether there was a breach of duty in failing to prescribe/administer Clexane' 'Whether such breach, if any, caused the death of the deceased by pulmonary embolism' 'Appropriate standard of care under s 5O Civil Liability Act 2002']

Ratio Decidendi

The standard professional practice in Australia in 2004 for Achilles tendon repair surgery did not require routine prescription or administration of LMWH such as Clexane for more than the patient’s hospital stay, and in many cases not at all. There was no obligation, based on the medical literature or peer practice, to give Clexane prophylaxis in this context. Even if Dr Newman breached a duty by not ensuring a single dose was administered, there was no evidence on the balance of probabilities that such a failure caused or would have prevented the deceased's fatal pulmonary embolism 27 days post-surgery. Therefore, judgment must be for the defendants.

Court Disposition

Judgment for the defendants

Orders

  • ['Judgment in favour of the defendants.' "The plaintiffs are to pay the defendants' costs of these proceedings."]