Ms Archer was one of five women who successfully sued Mr Blackstock in related cases. As Mr Blackstock did not defend or otherwise participate in any of the litigation, default judgment was entered in favour of all five women, and damages were awarded in the total sum of $2,732,741.00. However, due to his MDO not being required to indemnify him for the claims, it is unlikely that Ms Archer (or the other four women) will receive any payment of damages.
In September 2020, Mr Blackstock’s registration was cancelled for 7 years following a prosecution by the Health Care Complaints Commission before the NSW Civil and Administrative Tribunal in which the Tribunal found that complaints by patients regarding breast augmentation surgery performed by Mr Blackstock were established, and he was guilty of unsatisfactory professional conduct and professional misconduct.
We provide a brief synopsis of Ms Archer’s claim below.
Events giving rise to Ms Archer’s claim
During the breast augmentation surgery, Ms Archer alleged that she was initially blindfolded; and despite sedation, she found the whole experience extremely traumatic and was screaming in excruciating pain. She recalled having been roused to sit up in a chair during the procedure in order to see herself in a nearby full-length mirror, and was shocked at the sight of the lacerated cuts to her breasts, as well as the tubes, blood, and protruding fatty tissues. She became aware of Mr Blackstock forcefully pushing in the breast implants at which point she blacked out and remained unconscious until she awoke in the recovery room.
Post-operatively, Ms Archer experienced painful complications including bilateral haematomas with breast swelling and enlargement for which she required several hospital admissions and antibiotic treatment.
She was left with disfiguring scars to her chest and required remedial surgery in three stages: firstly, surgery for implant removal, secondly, repair of her chest wall, and thirdly, a lift procedure with new implants. The estimated cost of the remedial surgery was about $60,000.00.
A plastic surgeon who subsequently examined Ms Archer concluded that her breast implants had been placed in a position that was too high on her chest. He considered that her described pain was probably due to nerve damage caused by the way in which the implants were inserted.
The plastic surgeon was critical of Dr Blackstock in that he had not undertaken the procedure on Ms Archer’s breasts in a properly certified operating theatre and that he failed to provide appropriate post-operative care (particularly in managing her post-operative breast haematomas which should have been kept under observation).
Ms Archer’s mental health had also been adversely impacted by the surgery. She was examined by a forensic psychiatrist who diagnosed her as suffering from consequential depression with a mixed prognosis, which would be very much dependent upon proposed remedial surgery. It was recommended that Ms Archer have 6 – 12 consultations with a psychologist to deal with her depression and body image problems.
Assessment of Damages
Ms Archer was awarded damages in the total sum of $371,000.00, plus costs. The Court assessed damages as follows:
- non-economic loss: 40% of a most extreme case, being $282,000.00.
- future out-of-pocket expenses: $80,000.00.
- past out-of-pocket expenses: $9,000.00.
Conclusion
Although Mr Blackstock was indemnified when he performed the surgeries, he subsequently had his cover cancelled by his medical defence organisation (MDO) in April 2018 for non-payment. The Run-Off Cover Scheme (ROCS) was meant to fund compensation payouts by practitioners who were no longer practising, and because Mr Blackstock notified his MDO of the claims in the 13-month period between his insurance being cancelled and his ROCS cover beginning, his MDO was under no legal obligation to indemnify Mr Blackstock.
Mr Blackstock commenced proceedings against his MDO in the NSW District Court with respect to the indemnity issue, but the Court found in favour of the MDO.
To read the decision in Archer v Blackstock [2023] NSWDC 50 (as well as related decisions regarding Mr Blackstock), click here:
Health Care Complaints Commission v Blackstock [2020] NSWCATOD 110.
Archer v Blackstock [2023] NSWDC 50
Kelly v Blackstock [2023] NSWDC 48
Stevens v Blackstock [2023] NSWDC 49
Hammond v Blackstock [2023] NSWDC 51
Clark v Blackstock [2023] NSWDC 60
