Dean v Pope [2021] NSWDC 670 (on Caselaw).
In this matter the plaintiff Mr Dean claimed that in 2013 and 2014, Dr Pope inadequately assessed his presenting symptoms and asserted that this led to an unnecessary lumbar spine procedure.
The outcome of the claim turned on an analysis of the factual evidence and contemporaneous medical records and the expert evidence.
The defendant was also able to rely upon the peer opinion defence (section 5O) ([307]). Breach of duty was not proven as the evidence called on the plaintiff’s behalf did not go so far as to state that Dr Pope’s management fell short of acceptable standards of care ([340]). Although Dr Pope foresaw the possibility of a thoracic cause, he reasonably dismissed it as insignificant.
As for causation, in view of the clinical finding of impingement, and Dr Pope’s conclusion that the plaintiff’s symptoms were due to denervation, these being reasonable conclusions at the time, it was inappropriate to award the plaintiff damages for the effects of that back surgery, including the additional localised pain which flowed from that surgery as foreseeable potential adverse consequences about which he had been adequately informed prior to the surgery. ([348]).
The medical evidence did not permit a reasoned non-speculative differential analysis that identified a level of thoracic-related symptoms that existed in 2013, and a different level of such symptoms that existed in 2015, so as to enable a rational discernment of what might be considered to be a layer of symptoms that is compensable due to an argued delay ([357]).
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