King v Western Sydney Local Health Network [2011] NSWSC 1025

Supreme Court New South Wales

Medium Neutral Citation: King v Western Sydney Local Health Network [2011] NSWSC 1025 Hearing dates: 11/04/2011; 13/04/2011; 14/04/2011 Decision date: 07 September 2011 Jurisdiction: Common Law Before: Garling J Decision: 1. Judgment for the defendant. 2. Plaintiff to pay the defendant's costs. Catchwords: CIVIL - Medical negligence - Duty of Care - Foetal plaintiff when breach of duty occurred - Hospital owed duty of care to plaintiff which became enlivened upon her birth

CIVIL - Medical negligence - Breach of Duty - Civil Liability Act s 5B - Risk of Harm - Risk of plaintiff being born with congenital varicella syndrome (CVS) - Foreseeable - Requisite state of knowledge - Treating doctor consulted specialist to determine if mother should be treated with immunoglobulin - Widely known risk of plaintiff being born with CVS between one and two per cent - Not Insignificant risk of harm - Reasonable person would have taken precautions - Expert evidence - Plaintiff's mother should have been advised about availability, benefits and been administered with immunoglobulin - No evidence of possible serious adverse effects - Defendant breached duty of care

CIVIL - Medical negligence - Breach of Duty - Whether defence under s 5O Civil Liability Act - Onus on defendant - Whether deferral of immunoglobulin injection pending serology results widely accepted by peer professional opinion as competent professional practice - Relevant exposure to chickenpox within 96 hour window for immunoglobulin treatment - Expert evidence that deferral of treatment only acceptable when serology results available within six hours - Defence not made out