An 18-year-old woman who was born with an undiagnosed congenital pars defect (a crack or fracture of the bones of the lower spine) sued her radiologist for failing to report on the existence of her condition in an x-ray report in mid-2012, and her orthopaedic surgeon for failing to offer her appropriate conservative, non-operative clinical management.
It was alleged that if non-operative management had been instituted, the plaintiff would, on the balance of probabilities, not have proceeded to surgery (a lumbo-sacral spinal fusion in 2013) and thereby would have avoided the risk of a severe, disabling, and intractable neuropathic pain condition from which she now suffers.
The radiologist admitted breach of duty for failing to report on the existence of the plaintiff’s condition. However, at [223] the Court found that this breach did not cause the plaintiff’s loss. That is, even if the radiologist had correctly diagnosed the plaintiff’s condition in 2012, she would still have developed her current pain syndrome and associated problems even if her condition had been conservatively managed. The Court held that conservative management of her pre-operative pain syndrome would not have been enough to prevent the natural progression of the serious congenital spinal condition that led to it.
The orthopaedic surgeon denied any breach of duty and the Court found that the plaintiff had not established that the surgeon had breached his duty of care to her. In reaching this finding, the Court did not accept the plaintiff’s evidence that she had complained of back pain to the surgeon at the relevant consultations and noted at [149] that in these circumstances, any conclusion that the orthopaedic surgeon either failed to act in accordance with widely accepted competent professional practice or any allegation that he breached the duty that he owed to conform to the standard of care required of a reasonably competent paediatric orthopaedic surgeon could not stand.
To read the decision in Williams v Fraser & Stening [2021] NSWSC 416 click here.
