Human skills in medicine have come a long way, becoming more and more sophisticated as time has gone on. Surgery can still be a scary thought, but it used to be that the thought of any surgery without any or little painkilling caused humans to prefer certain death over surgery. Surgery was horrifically painful, bloody, and gory.

Examples of Ancient Surgeries
  • Trepanation, for example, is a practice dating as far back as 12000BC. It involved a hole being drilled or scraped in the skull to expose some kind of trauma or pressure in the skull. Trepanning was thought to ‘cure’ epileptic seizures, migraines, and certain mental disorders. Unsurprisingly, it had a poor survival rate.
  • Cataract surgery in the middle ages is another example. It involved a process called needling where the patient’s cataracts would be pushed, or needled, to one side with a sharp implement. Ouch!
  • Bloodletting was a classic procedure used by surgeons from antiquity until the late 19th century, a span of almost 2,000 years! It was used to treat basically everything. A lancet, or similar, was used to slice open a vein to allow the blood to flow freely into a receptacle. Sometimes so much so that it resulted in heart failure due to the sheer amount of blood loss. You had a cold? Bloodletting. Headache? Bloodletting. Even heartache? Bloodletting. Some people would even have it done several times a year just to ‘stay healthy’. The procedure was so common that barbers offered it, along with a haircut and shave. I’ll pass thanks!
  • From the early 1900’s the lobotomy became a popular procedure. A neurologist by the name of Walter Freeman was a major proponent of the procedure. He almost had a production line going just to lobotomise people. Hundreds of people a day. Tens of thousands of people throughout the 1950’s and 1960’s. He used the ‘ice-pick’ lobotomy method on people who, nowadays, would be diagnosed with simple and common mental disorders.

Anyway, I think you get the point! We’ve come a long way. Compare all of that to today with beeping monitors, white rooms, scrubs, bright lights, virtually pain free surgery, sterilisation, state of the art technology, and world-class training.

A Surgeons’ Responsibility

I think it’s fair to say that it’s easy, or at least fascinating, to focus on the horror stories. Doctors and health care professionals are skilled people who study and train for years on end to master their trade. They are often associated with remarkable, life-saving stories for which they are, and rightfully so, respected and revered in our society.
We can sometimes put our very lives in their hands and trust that they will deal with us professionally, skillfully, and with care and more often than not, they do.

Sometimes, unfortunately, this is not the case. The concept of medical responsibility can be traced back to the Code of Hammurabi, which is an extensive legal document from ancient Mesopotamia, 2000BC. The Code of Hammurabi states that, “If the doctor has treated a gentlemen with a lancet of bronze and has caused the gentleman to die, or has opened an abscess of the eye for a gentleman with a bronze lancet, and has caused the loss of the gentleman’s eye, one shall cut off his hands”
Roman law recognised medical malpractice as a civil wrong and had systems in place to provide compensation for such occasions.

Now, obviously if a doctor does something wrong these days we’re not cutting off their hands! However, these doctrines can be traced to today’s concept of medical negligence and medical responsibility.

Medical negligence today in NSW (in particularly in Penrith, Parramatta and Hawkesbury)

What is ‘medical negligence’? Simply put, the term is generally used when alleging that a health professional or hospital has departed from acceptable standards of care which caused, or materially contributed to, a patient’s injury or condition.
There is no universal guide that can be followed to determine the existence of ‘medical negligence’. Each case is (very) unique and turns on its own facts. For example:

  • A radiologist failing to identify, or incorrectly identifying, certain pathology. For example, failing to identify an aneurysm.
  • A doctor’s failure to order an urgent CT scan which would have detected a brain tumour early.
  • An unsterilized needle being used on a patient resulting in septicaemia.
  • A doctor’s failure to disclose their lack of experience in performing a particular procedure.
  • Prescribing the incorrect medication which causes harm to a patient.

Those are some of the many examples of ‘medical negligence’. Legislation and the ‘common law’ (that is, decisions from courts which set a precedent) provide us with some guidance as to whether a medical negligence case can succeed or not.
The patient who brings the claim against the health professional or hospital is called the ‘plaintiff’ and the health professional or the hospital is called the ‘defendant’. In New South Wales, the plaintiff brings the claim under the Civil Liability Act 2002.  A claim will, broadly speaking, centre around three legal concepts known as breach of duty of care, causation, and damage.

Breach of Duty of Care

It is often not in dispute that a health professional owes a patient a duty of care. However, it can often be disputed whether the doctor breached that duty of care. The breach can be described as the ‘negligence’.
The question to be asked is, has a health professional or hospital departed from acceptable standards of care which caused, or materially contributed to, the patient’s injuries or condition?


Causation is often the most complex part of a medical negligence case. It requires a two-stage test. Without getting too technical, this requires the following to be established:

  1. The plaintiff must prove that, but for the breach, the harm would not have occurred. This is known as the ‘but for’ test.
  2. The plaintiff must then prove that it is appropriate to hold the defendant responsible for the harm caused. This is also known as the ‘scope of liability’ test. In other words, even though there was breach of a duty of care, and harm was caused as a result, is it still appropriate to hold the defendant responsible?

A good example of this is the High Court case of Wallace v Kam [2013] HCA 19. The case can be summarised as follows:

  • Mr Ian Wallace underwent a surgical procedure in relation to his lumbar spine performed by Dr Kam, a Neurosurgeon. The surgical procedure had two inherent risks of which Mr Wallace was not advised.
  • The first was bilateral femoral neurapraxia, which is temporary local damage to the nerves.
  • The second was a 1‑in‑20 chance of permanent and catastrophic paralysis resulting from damage to his spinal nerves.
  • The procedure did in fact result in bilateral femoral neurapraxia.
  • The High Court considered the ‘but for’ test and found that if Dr Kam warned Mr Wallace of both the risks, Mr Wallace would not have undergone the surgery and therefore would have avoided the harm.
  • However, the High Court then considered the ‘scope of liability’ test. In doing this, the High Court used the example of a mountaineer and said the following:
    “A useful example, often repeated, is that of a mountaineer who is negligently advised by a doctor that his knee is fit to make a difficult climb and who then makes the climb, which he would not have made if properly advised about his knee, only to be injured in an avalanche. His injury is a “foreseeable consequence of mountaineering but has nothing to do with his knee”.
  • So in this case, the court found that if Mr Wallace had been warned of only the bilateral femoral neurapraxia risk he would have gone ahead with the surgery anyway and therefore Dr Kam should not be liable for harm caused for a risk Mr Wallace was willing to hazard.

Damage simply refers to the extent of the harm caused as a result of the ‘medical negligence’ and the value that has in monetary terms.  Under the Civil Liability Act 2002, a Plaintiff may be able to claim compensation for some or all of the following:

  • Non-economic loss (sometimes referred to as ‘pain and suffering’);
  • Past & future economic loss (including superannuation);
  • Past & future out-of-pocket expenses (for example, treatment expenses);
  • Past & future domestic assistance and care provided to the plaintiff;
  • A loss of the plaintiff’s capacity to provide domestic services or care for someone.

If you have any questions about medical negligence, please feel free to contact Adams & Partners Lawyers.

Written by Bruce Coode

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