Belokozovski v Magarey [2014] NSWDC 5

District Court New South Wales

Medium Neutral Citation: Belokozovski v Magarey [2014] NSWDC 5 Hearing dates: 24/02/14 - 28/02/14; 03/03/14 - 04/03/14 Decision date: 07 March 2014 Jurisdiction: Civil Before: Elkaim SC DCJ Decision: Verdict for the plaintiff for $23,865 Catchwords: Medical negligence, causation, psychiatric condition Legislation Cited: Civil Liability Act 2002 Cases Cited: Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 Dobler v Halvorsen [2007] NSWCA 335 McKenna v Hunter & New England Local Health District; Simon v Hunter & New England Local Health District [2013] NSWCA 476 Mason v Demasi [2009] NSWCA 227 Young v Cesta-Incani & Anor [2007] NSWCA 229 Category: Principal judgment Parties: Mirce Belokozovski (Plaintiff) Christopher John Magarey (Defendant) Representation: J Anderson (Plaintiff) V Thomas (Defendant) Martin Bell & Co (Plaintiff) TressCox Lawyers (Defendant) File Number(s): 2011/00238962 Publication restriction: No

Judgment 1The plaintiff was born in Macedonia in 1973. He moved to Australia in 2004, having married an Australian citizen, Ms Gina Braga. He worked with Ms Braga in a business partnership. 2The defendant was a surgeon. He retired in 2007. His 'CV' is Exhibit 1. On 23 February 2006 the defendant operated on the plaintiff at St George Private Hospital. The procedure was called a laparoscopic cholecystectomy. This is surgery involving entry to the abdomen through an incision cut close to, and just above, the umbilicus. The purpose is to remove the patient's gall bladder. 3For some time after the surgery the plaintiff suffered from severe pain in his abdomen together with a frequent discharge from the operation wound. He required a number of subsequent operations until 2010 when his umbilicus was excised and his physical problems came to an end. He now suffers from psychological problems, which he attributes to the original surgery. 4The plaintiff blames the defendant for the pain and suffering he has endured since the operation in February 2006. He says that the defendant was negligent. He primarily identifies two broad areas of negligence: Firstly, the failure to perform a procedure called an intra-operative cholangiogram (an IOC) during the operation, and secondly, the use of non-absorbable sutures. 5The first area includes an allegation of proceeding to surgery without first obtaining liver function tests. The second area encompasses an allegation of failing to remove the sutures after surgery or, at least, taking steps to investigate if the sutures were the source of the discharge. 6It is important to note that the two areas of alleged negligence are discrete. Although difficult to separate, they have discrete consequences. Quite reasonably however the plaintiff views the whole of the consequences as being the product of the surgery. 7I was greatly assisted by the concurrent evidence of three medical experts, Dr Conrad, Dr Hugh and Prof Morris. Although their reports form a useful background the 'conclave' was most determinative of my conclusions on liability. 8The action is governed by the Civil Liability Act 2002 (the "CLA"). The defendant has denied negligence and also relied on Section 5O of the CLA. 9The onus is on the defendant to establish the defence provided by Section 5O (Dobler v Halvorsen [2007] NSWCA 335). More recently, Macfarlan JA, in McKenna v Hunter & New England Local Health District; Simon v Hunter & New England Local Health District [2013] NSWCA 476 at paragraph 160, said this: "160. To establish a defence under s 5O a medical practitioner needs to demonstrate, first, that what he or she did conformed with a practice that was in existence at the time the medical service was provided and, secondly, to establish that that practice was widely, although not necessarily universally, accepted by peer professional opinion as competent professional practice." 10The plaintiff has claimed damages under the following heads: non-economic loss, past and future economic loss and past and future medical expenses. A particularised claim for domestic care was not pressed. 11The defendant has said, as with liability, that there are significant causation issues in respect of damages. Although it was conceded that the plaintiff has suffered from an anxiety condition the defendant submitted that it was not caused by anything done by the defendant.