Tabet v Mansour & Anor [2007] NSWSC 36

New South Wales Supreme Court

CITATION : Tabet v Mansour & Anor [2007] NSWSC 36

HEARING DATE(S) : 19-31 July, 1-3 August, 7-17 August, 24-31 August, 4-6 September, 18-21 September, 27 September, 9 November 2006

JUDGMENT DATE : 9 February 2007

JURISDICTION : Common Law Division Professional Negligence List

JUDGMENT OF : Studdert J

DECISION : 1. On the plaintiff's claim against the first defendant, verdict and judgment for the first defendant. 2. On the plaintiff's claim against the second defendant, verdict and judgment for the plaintiff in the sum of $610,000. 3. I order that the plaintiff pay the first defendant's costs of the proceedings against the first defendant. 4. I order that the second defendant pay the plaintiff's costs of the plaintiff's proceedings against him.

CATCHWORDS : MEDICAL NEGLIGENCE CLAIM - six year old patient referred to first defendant paediatrician on 28 December 1990 with a history of headaches - hospital admission 29-31 December 1990 - varicella rash by time of discharge - whether first defendant negligent in treatment in failing to detect medulloblastoma - no CT scan to investigate cause of headaches. MEDICAL NEGLIGENCE CLAIM against second defendant - consulted as paediatrician on 11 January 1991 - resolving varicella rash - continuing headaches - provisional diagnosis of meningitis - hospital admission 11 January 1991 - lumbar puncture 13 January 1991 - deterioration 14 January 1991 - CT scan then reveals medulloblastoma - whether second defendant negligent in treatment - whether failure to arrange CT on 13 January 1991 causative of harm. MEDICAL NEGLIGENCE - lost chance of better outcome - entitlement to damages - assessment of value of lost chance. The plaintiff was a six year old child who was referred to the first defendant in his capacity as a specialist paediatrician on 28 December 1990 with complaints of headaches. The plaintiff was admitted to hospital on 29 December and remained there until 31 December 1990, by which time a varicella rash had appeared. The plaintiff was examined by the first defendant before her discharge from hospital on 31 December 1990, the last occasion on which the first defendant saw the plaintiff. The plaintiff consulted the second defendant, who was a specialist paediatrician on 11 January 1991, with resolving varicella rash and with complaint of continuing headaches. The plaintiff was admitted to hospital again on that date for investigation, the second defendant making a provisional diagnosis of meningitis. A lumbar puncture was performed on 13 January 1991 and on 14 January 1991 a CT was performed after the plaintiff's condition deteriorated. This procedure disclosed that the plaintiff had a medulloblastoma. The plaintiff was subsequently operated on for a subtotal removal of the medulloblastoma. The plaintiff later had extensive chemotherapy and radiotherapy. The treatment was successful but the plaintiff has been left severely disabled. The plaintiff claimed damages against each defendant, alleging negligence by each defendant in treatment and the failure to detect the medulloblastoma before it was detected. HELD - As to liability: (1) The claim against the first defendant failed - (2) The claim against the second defendant succeeded in that there was found to be a breach of duty of care in not arranging for an urgent CT on 13 January 1991 following an episode occurring on that day - (3) The failure to arrange for that procedure was not proved on the probabilities to be causative of harm, having regard to the plaintiff's pre-existing condition at that time, and to the treatment likely to have been provided if there had been a CT on 13 January 1991 - (4) The plaintiff, however, proved an entitlement to damages for loss of a chance of a better outcome and the avoidance of the damage done on 14 January. Damages: (5) There were four contributors to the totality of the brain damage from which the plaintiff suffers: (i) the medulloblastoma with its seeding and hydrocephalus - (ii) the damage that occurred on 14 January 1991 - (iii) the surgery on 16 January 1991 - (iv) the subsequent radiotherapy treatment - (6) Except for (i), each of the remaining contributors added to the brain damage preceding its contribution - (7) The contribution of the damage that occurred on 14 January to the total damage and resulting disabilities was not greater than twenty-five percent - (8) The loss of the chance of a better outcome and avoidance of the harm suffered on 14 January 1991 was quantified as a forty percent chance - (9) Damages were assessed on the loss of a chance basis at $610,000.