With thanks to Ms Hayley Daniel for drawing attention to Fischer v Brown [2021] VCC 104 (on AUSTLII).
The plaintiff underwent a revision of a bilateral breast reduction under the care of the defendant. She alleged negligence in failure to recognise and treat postoperative right sided venous congestion, giving rise to necrosis and a need for numerous corrective procedures.
The plaintiff’s claimed failed for two main reasons. Firstly, the trial judge accepted the evidence of the defendant over that of the plaintiff, in respect of what occurred in the post operative period. Secondly, given the factual findings in respect of the post operative period, the majority of the expert opinions were that the defendant acted reasonably and these were accepted by the trial judge.
Arguments were also made in respect to advice to the plaintiff that she should stop smoking, which she delayed doing. The trial judge did not acccept the opinion of one expert witness that it was a breach of duty to have proceeded with the surgery in circumstances where the plaintiff had not ceased smoking 6 weeks before the surgery.