In February 2011, the Plaintiff was found to have a benign brain tumour. He consulted with Dr Day, a neurosurgeon, who recommended that the tumour be removed by way of endoscopic surgery.

The surgery was performed without incident but shortly thereafter the Plaintiff suffered a haemorrhage which left him with significant impairment.

It was accepted that there were two available courses of treatment: surgical removal of the tumour and conservative treatment by way of monitoring the tumour at regular intervals.

There was also no issue that Dr Day recommended that the tumour be removed by endoscopic surgery which he had not previously performed, although he had performed other endoscopic procedures.

In the joint report of the experts in the case, it was agreed that Dr Day probably did not have the experience to perform the surgery, which involved an endoscopic nasal approach to the anterior skull base, given that he was not fellowship trained in endoscopic skull based surgery; he had not observed such surgery live; nor had he performed a number of cases of intermediate complexity, other than pituitary surgery. The experts also agreed that Dr Day ought to have disclosed his lack of experience to the Plaintiff and discussed it with him, before the decision to have the surgery was made.

In their concurrent evidence, while it was agreed that surgery was a reasonable option in the Plaintiff’s case, the experts considered it was unreasonable for Dr Day to have presented the alternative conservative option of observation and monitoring of the tumour to the Plaintiff, as a poor option.

The Court found that Dr Day did not disclose his lack of experience in the performance of the surgery to the Plaintiff and that if this information had been given, the Plaintiff would not have proceeded with surgery. It also found that Dr Day was negligent in recommending the surgical option, and that he should have advised an initial period of conservative management before a decision about surgery was made.

To read the full decision in Jambrovic v Day [2017] NSWSC 1468, click here.