Background

On 19 March 2018, Mr Cowie (‘the patient’) underwent a cryotherapy procedure, being the use of liquid nitrogen, to remove some keratosis on his bottom lip (‘the procedure’). The procedure was performed by Dr Quinn.

On 6 April 2018, more than 17 days after the procedure, the patient and his wife went on a holiday interstate when he claimed that his lips became very sore, swollen, ulcerated and extremely painful. The patient claimed that he spent much of the holiday in his hotel room, struggling to eat due to the lips being sore, cracked bleeding and swollen. The patient claimed that, upon returning from his holiday, he was unable to work for two weeks due to the ongoing pain, ulceration and cracking of his lips.

Magistrates Court Proceedings

The patient sued Dr Quinn in the Magistrates Court for negligence, alleging that he suffered a severe reaction to the procedure, and that if he had been fully informed by Dr Quinn of the possibility of such a reaction, he would not have proceeded with the procedure on that day. The patient further alleged that Dr Quinn failed to seek or obtain consent to perform the procedure, did not explain the nature of the procedure, and did not explain the after effects of the procedure.

The patient claimed damages of $4,850 plus costs in relation to personal injury he alleges was caused by Dr Quinn in performing the procedure. This amount comprised travelling costs and expenses, the loss of enjoyment of his holiday and loss of wages for two weeks’ work.

In his defence, Dr Quinn’s case was that:

  • The patient’s reaction to the procedure was severe, and one he had never seen before in thousands of procedures he ad performed generally, and in over 100 that he had performed on the lips. He had also never heard of such a severe reaction occurring.
  • The reaction was delayed and did not occur until 17 days after the procedure, and therefore could not have been caused by the procedure but was more likely caused by an unrelated illness such as a virus.
  • As he had never previously seen or heard of such a late reaction he was not able to warn of it occurring, although he could not recall what exact warning was provided to the patient.
  • His normal practice in over thousands of procedures was to advise of some pain, burning and blistering to the treated area that would resolve within 7 days

The Magistrate found that the patient failed to prove on the balance of probabilities that the injury he sustained to his lips and any damages that flowed from that was caused by the procedure performed by Dr Quinn. The Magistrate dismissed the patient’s claim and awarded $800 in costs to be paid to Dr Quinn, being for 2 hours of his professional time whilst in court.

District Court Proceedings

Both parties were dissatisfied with the outcome in the Magistrates Court proceedings and appealed to the District Court for a review of the Magistrate’s decision.

Dr Quinn’s application sought orders that he receive an increased amount of costs to compensate him for his time spent away from his medical practice to defend the patient’s case. The total amount claimed by Dr Quinn was $10,185. The patient brought a cross-application and sought a review of the dismissal of his claim in the Magistrates Court, raising concerns about the fairness of the trial.

The Judge dismissed Dr Quinn’s application for an increased amount of costs because these were not legal costs but loss of income from his medical practice which he was not entitled to be compensated for. Dr Quinn was also ordered to repay the sum of $800 to the patient.

The Judge found that the patient failed to establish that the cause of his injury that led to the alleged loss of enjoyment of his holiday and his loss of income was the procedure performed by Dr Quinn. As such, the patient could not prove that Dr Quinn was negligent in not informing him of the likelihood of a severe reaction within the time frame of his holiday, if that severe reaction was not related to or caused by the procedure. The Judge noted that, as Dr Quinn had not seen or heard of such a severe reaction to cryotherapy procedure occurring, it was not something he could warn the patient about, as he was not aware that it could occur.

Ultimately, the Judge found that the patient had not suffered loss and damage that was compensable and dismissed the patient’s application.

To read the decision in Cowie v Quinn [2019] SADC 71, click here.