AMA VICDOC Summer 2024 - Magazine - Page 75
The expert opinion did not provide any basis for
considering that the haematoma should have been
identified as infected prior to discharge. The first
ground of appeal was rejected in its entirety.
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REJECTION OF EVIDENCE
FAILURE TO INFORM
The appeal judgment confirmed that the
adequacy of the instructions given to the
appellant on discharge was not part of her
pleaded case and the court was not open
to make such comments. As such, the trial
judge did not err in rejecting evidence that
the appellant attempted to tender from
the experts.
The court considered the only material
criticism put forward by an expert to
be the respondent’s treatment of the
haematoma and not her discharge.
However, it was emphasised that, as
indicated by the experts, the respondent
was required to only consider the risk of
infection, which it was established he did.
The expert opinion did not provide any
basis for considering that the haematoma
should have been identified as infected
prior to discharge. The first ground of
appeal was rejected in its entirety.
In the appeal submissions made by the
appellant, it was stated that the respondent
bore the onus of proof under section 5O, to
show that his practice was widely accepted.
The appeal judgment provided that the
nature of the statute was misunderstood.
The section provides a standard against
which a claim for breach of duty of
care must be assessed. As such, it was
the appellant who was responsible for
identifying the conduct that she alleged
breached the duty of care.
This ground of appeal raised issues of
relevance with expert evidence at trial
raising whether the appellant was informed
that she had lost a large volume of blood
when she was discharged. The trial judge
rejected this evidence as it did not form
part of the pleaded case, nor did it focus on
the allegations of negligence at hand. On
appeal, counsel for the appellant attempted
to reframe the evidence by stating that
it was “a failure to provide information
about what [the appellant] should be on
the lookout for, and to discuss how serious
the situation was.” The appeal judgment
found that based on the expert evidence,
the respondent adequately informed the
appellant of risks prior to her discharge.
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VI CD O C SU M M ER 2024
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