Relevant Facts
The relevant facts of the case were as follows.
- A then six year old girl was admitted to hospital on 28 December 1990 with a history of headaches and vomiting since about 18 December 1990. At this time, the girl was in the incubation and prodromal phases of chicken pox that she had contracted on or about 16 December 1990 from her sibling.
- The girl was diagnosed by Dr Mansour as having a streptococcal infection and was prescribed penicillin.
- The girl was discharged later that same day.
- The girl was again admitted to hospital under the care of Dr Mansour on 29 December 1990 since the headaches and vomiting persisted.
- The girl was discharged on 31 December 1990 with all neurological examinations done up to that date being normal.
- Between 31 December 1990 and 11 January 1991, the girl was visibly suffering from chickenpox.
- On 11 January 1991, the girl was seen by the Appellant doctor (who was caring for Dr Mansour’s patients whilst he was away) in his rooms and his neurological examination revealed no evidence of raised intracranial pressure. She was later admitted to hospital that day. The Appellant doctor diagnosed the girl as having post-chickenpox meningitis. The Appellant doctor ordered a lumbar puncture be performed that day to confirm/negative that diagnosis but this could not be done due to the girl’s distress concerning the procedure.
- On 13 January 1991, the girl had a neurological episode in that her pupils were observed to be unequal and her right pupil was not reactive. The Appellant doctor ordered a lumbar puncture be performed urgently and it was so.
- On 14 January 1991, the girl’s condition deteriorated. She suffered a seizure. A CT scan was performed urgently revealing a brain tumour, known as a medulloblastoma. A right front intraventricular drain was inserted by Dr Maixner to relieve intracranial pressure.
- On 16 January 1991, Mr Johnston and Dr Maixner removed the brain tumour. The removal was only partially successful.
- Between 26 February 1991 and 7 May 1991, the girl underwent chemotherapy.
- Between 20 May 1991 and 2 July 1991, the girl underwent radiotherapy.
- The girl now suffers some brain damage.
Comment
The unanimous decision by the Court in Gett v Tabet [2009] NSWCA 76 to not follow existing authority concerning the award of damages for the loss of a chance of a better medical outcome was not a decision that “turned on the facts of the case”. Rather, it was a decision based on a comprehensive and well-reasoned critique of the conceptual basis of such an award. Consequently, the decision’s conclusions as to damages for loss of chance have potential application to all future cases concerning an award for damages for loss of a chance of a better medical outcome (in circumstances where the physical injury suffered is not shown to have been caused or contributed to by a negligent party).
Although the Court’s decision in Gett v Tabet [2009] NSWCA 76 is not binding on Western Australian courts, it certainly represents persuasive authority. The criticisms made by the Court appear to be well researched and founded.
The result is that the capacity for a plaintiff to successfully seek damages for loss of a chance of a better medical outcome is now at best the subject of legal uncertainty in all jurisdictions (other than New South Wales where the Court’s decision in Gett v Tabet clearly refutes the existence of the entitlement). If the entitlement to such an award is to be clarified, a determination by the High Court will be required.
