In order to succeed in a medical negligence claim, a claimant must demonstrate:
- The medical treatment which is the subject of his or her medical negligence claim did not constitute reasonable medical care (the negligent treatment ); and
- The negligent treatment caused the claimant to suffer an injury or loss.
This means that the claimant must be able to prove that, had the treatment been performed appropriately, the claimant's injuries would have been avoided. This is what lawyers call causation and it is often a highly contentious issue in medical negligence claims. Two cases that highlight the difficulty of proving causation are King v Western Sydney Local Health Network  NSWSC 1025 and Waller v James  NSWCA 232.
King v Western Sydney Local Health Network  NSWSC 1025
In May 2002, Ms King attended Blacktown Hospital (the Hospital ) when she was 14 weeks pregnant. She advised the Hospital that her daughter had been diagnosed with chickenpox that morning.
Chickenpox is caused by Varicella-Zoster Virus (VZV ). If VZV is contracted by a pregnant woman, it can cause the foetus to contract Congenital Varicella Syndrome (CVS ), which can inhibit foetal development.
The Hospital considered whether Ms King should be given the VZV vaccine and ultimately advised her that the vaccine was not required because her pregnancy was in the second trimester. 10 days later, Ms King was diagnosed with chickenpox.
In November 2002, Ms King's daughter was born severely disabled and was subsequently diagnosed with CVS.
Ms King brought a claim against the Hospital on behalf of her daughter for not providing her with the vaccine, which she argued, would have prevented her from contracting chickenpox, thereby preventing her newborn daughter's injuries. The Judge agreed that the Hospital breached its duty of care to Ms King's daughter by failing to advise Ms King of the risks to her unborn child and failing to treat her with the vaccine. However, the Judge held that it could not be demonstrated that, had Ms King been administered the vaccine, it would have prevented her contracting chickenpox. It was necessary for this to be established on the balance of probabilities which means, more likely than not. The majority of medical evidence in this case only established that it was possible that the vaccine would have prevented Ms King's infection, which was not sufficient. As a result, the claim failed.
Waller v James  NSWSC 497
In 2000, wishing to conceive a child, Mr and Mrs Waller attended gynaecologist Dr James for IVF treatment. Mr Waller suffered from anti-thrombin deficiency (ATD ), a blood disorder characterised by a tendency to form blood clots (thrombosis ). Prior to the child's conception, Dr James was made aware of Mr Waller's ATD and referred Mr and Mrs Waller to a genetic counsellor. However, he did not explain that the referral was made because ATD is hereditary. Mr and Mrs Waller did not attend a session with the genetic counsellor and Dr James did not follow it up. Their son was born with ATD. Four days after their son was born, he suffered an extensive cerebral sinovenous thrombosis (CSVT ), which is a form of stroke, and as a result became severely disabled. Mr and Mrs Waller brought a claim against Dr James arguing that, if Dr James had informed them that ATD was hereditary, they would not have undergone IVF treatment until they could do so without risk of having a child with ATD, meaning that they would not have had a child who suffered a CSVT. The Judge agreed that Dr James had breached his duty of care to Mr and Mrs Waller when he failed to provide information to them about the inheritability of ATD. However, the Judge held that, even though it was possible that the son's ATD caused the CSVT, on the balance of probabilities, it was coincidental to the inheritance of ATD and was an inherent risk of pregnancy and IVF treatment. As a result, the claim failed. Both King v Western Sydney Local Health Network and Waller v James were later dismissed on appeal. These cases highlight the difficulty in establishing causation in medical negligence claims and the need to thoroughly investigate causation issues. If you or a family member has suffered an injury as a result of someone else's negligence, its important to get the right advice about compensation entitlements. To speak directly to one of our expert injury lawyers, call (03) 9321 9988. Your first appointment is free and we offer a'No Win, No Fee' service.