Cerutti v. Forbes-Johnson [2004] NSWCA 49

Cerutti v. Forbes-Johnson [2004] NSWCA 49

The appeal was allowed because the evidence did not establish that administering 1.8mls of heavy bupivacaine, after orthodox testing indicated an effective block and with an epidural top-up available if pre-operation testing showed insufficiency, was a departure from proper anaesthetic practice or an opinion no reasonable medical practitioner could hold. The primary judge's finding of breach was affected by failure to address that question and by misunderstanding evidence about the 1%-2% risk of anaesthetic failure. The respondent's notice of contention failed because the evidence did not show that, once unacceptable pain was appreciated, there was a sufficient opportunity to halt the...

Jurisdiction
Australia
Judgment Date
08 March 2004
Procedural Posture
Appeal in Negligence Proceedings for Damages Arising From Alleged Medical Negligence / Appeal by Leave From District Court Judgment on Liability Only
Outcome
Appeal allowed; verdict and judgment for the respondent against the appellant set aside and verdict and judgment entered for the appellant.
Legal Topics
['anaesthetic Failure During Caesarean Section' 'adequacy of Spinal Anaesthetic Dosage' 'breach of Duty by Specialist Anaesthetist' 'causation' 'notice of Contention']
['torts' 'negligence' 'medical Negligence'] ['anaesthetic Failure During Caesarean Section' 'adequacy of Spinal Anaesthetic Dosage' 'breach of Duty by Specialist Anaesthetist' 'causation' 'notice of Contention']

Case Brief

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Procedural Posture

Appeal in Negligence Proceedings for Damages Arising From Alleged Medical Negligence / Appeal by Leave From District Court Judgment on Liability Only

Legal Issues

  1. 1 ["Whether administration of 1.8mls of heavy bupivacaine constituted a breach of the appellant anaesthetist's duty of care." "Whether the primary judge erred by treating the preferred dosage opinion as determinative without deciding whether the appellant's opinion was one no reasonable anaesthetist should hold or otherwise a departure from proper practice." 'Whether the respondent established that the appellant should have halted the procedure or administered further anaesthetic when pain was first reported.' "Whether any increased risk from the dosage caused the respondent's pain."]

Ratio Decidendi

The appeal was allowed because the evidence did not establish that administering 1.8mls of heavy bupivacaine, after orthodox testing indicated an effective block and with an epidural top-up available if pre-operation testing showed insufficiency, was a departure from proper anaesthetic practice or an opinion no reasonable medical practitioner could hold. The primary judge's finding of breach was affected by failure to address that question and by misunderstanding evidence about the 1%-2% risk of anaesthetic failure. The respondent's notice of contention failed because the evidence did not show that, once unacceptable pain was appreciated, there was a sufficient opportunity to halt the...

Court Disposition

Appeal allowed; verdict and judgment for the respondent against the appellant set aside and verdict and judgment entered for the appellant.

Orders

  • ['Appeal allowed.' "Verdict and judgment of the primary judge set aside, and in lieu thereof verdict and judgment for the appellant, and the respondent to pay the appellant's costs of the proceedings." "Respondent to pay appellant's costs of the appeal, and have a certificate under the Suitors' Fund Act if otherwise...