Medical Negligence in Allied Health Care

12 August 2013

In 2010, BPC was instructed to act for a plaintiff who had a claim against her chiropractor. She alleged that the treatment that she was given in 2008 was performed negligently and claimed compensation from the chiropractor.

Facts
Our client had a breast augmentation procedure in 2005 during which implants were inserted. She was very happy with the results and had no problems until she met the defendant.

Our client worked in a job that required her to have her head bent down and her neck extended – therefore she suffered occasionally from a sore neck and back. In 2008 she attended a chiropractor. The chiropractor took no medical history and asked no questions about prior surgery. He asked where her pain was, noted that in a chart, performed a couple of manipulations and sent her home.

Later that evening, our client noticed that one of her implants appeared to have been pushed out of place. When she consulted the surgeon who had performed the procedure, he confirmed that the implant was displaced, and that she would need surgery to correct the displacement.

Our client could not afford the surgery, but very much wanted to have her implant corrected. She then decided to seek legal advice about whether the chiropractor was negligent in his treatment of her.

The legal process
Our client got an expert opinion from a chiropractor who stated that her treating chiropractor was negligent in failing to take any sort of medical history from her, and in performing the manipulation he did. Our client filed proceedings in the District Court of New South Wales in 2011, and despite various attempts, was not able to settle the case, and so it proceeded to trial in 2012.

The hearing
This case turned on both expert and lay witness evidence. There was a dispute over which manipulations were performed, and whether they were negligent – this became a case as much about the facts as about the experts.

The plaintiff gave evidence herself and her then husband also gave evidence. This was directly contradicted by evidence the defendant himself gave.

Expert witnesses included a chiropractor for both the plaintiff and the defendant, a plastic surgeon for the defendant, and the plaintiff’s treating plastic surgeon.

The decision
Ultimately, the Court was persuaded that the defendant did not take a proper history, and that he should have. The Court was further persuaded that if he had taken a proper history, he should not have performed the manipulations that he did. The Court found that the defendant performed the manipulations as described by the plaintiff, that the defendant breached his duty of care to the plaintiff and caused her injury, and that compensation should be awarded.

The plaintiff was awarded the full cost of the corrective surgery as recommended by her treating surgeon, and pain and suffering. For pain and suffering, she was deemed to be worth 25% of a most extreme case. Overall she was awarded $51,137.50 in compensation. Additionally, the defendant was ordered to pay all of the plaintiff’s costs from approximately one year before the trial, because the plaintiff had offered to settle her case for an amount less than she was awarded by the Court.

Lasting effects
This case received a lot of publicity at the time of judgment, and it was reported in newspapers around the world.

This case has become a landmark decision in personal injury circles, and is particularly important because of what the plaintiff was given for her pain and suffering.

This article was written by Caryn Ger, a senior solicitor at the firm, who ran this matter to its conclusion. For more information or to speak with Caryn, please contact us on 8280 6900.

About BPC Lawyers: BPC offers legal services such as workers compensation, motor accident compensation and claims for public liability. Beilby Poulden Costello has its origins in a legal practice started by Barry Beilby in 1975.