Busa v South Eastern Sydney Local Health District Trading as Sydney Eye Hospital [2025] NSWSC 130 (Link to Caselaw).
Judgment was entered for the defendant in this matter, arising from a procedure carried out on the plaintiff’s left eye by a doctor at the Sydney Eye Hospital in 2015. The plaintiff claimed to have lost vision in his left eye and suffered ongoing pain and psychiatric damage.
The claim
This note does not attempt to summarise the detailed factual and expert evidence other than to mention that the trial judge accepted the evidence of Dr Andric that he did not attempt more than three injections to withdraw fluid from the plaintiff’s eye.
The vitreous haemorrhage that occurred four days later occurred because of the bad state of the plaintiff’s eye from the retinopathy. Dr Andric carried out the procedure to a standard that was widely accepted in Australia by peer professional opinion as competent professional practice. There was no breach of the defendant’s duty of care in the carrying out of the procedure. ([205])
The court found that when the plaintiff presented to the SEH on 1 April 2015 he was suffering from endophthalmitis. However the treatment he was given in the form of the tap and inject was the correct treatment regardless of whether he actually was suffering from endophthalmitis. ([237]).
As to causation of damage at [259]:
…from all of this evidence that by reason of the extent of the problems with the plaintiff’s eyes, and particularly the left eye, and the fact that he acquired endophthalmitis prior to 1 April 2015, the prognosis for his left eye was very poor. The likelihood is that those matters eventually led to the position where he lost the sight in the left eye even though there was no breach of duty …. The damage the plaintiff suffered in terms of vision in his left eye would have occurred in any event. Similarly, the pain is related to increased intraocular pressure which was not related to what occurred …. In that way, even if breach was established, the plaintiff would have failed on causation in relation to his physical injuries.
As to mental harm at [275]:
I must accept the evidence of the psychiatrists, because there is no evidence to the contrary, that the plaintiff suffers from PTSD and that it is related to his treatment, or at least his beliefs about that treatment, …. However, in the light of my earlier findings of no breach of duty, the psychiatric conditions from which the plaintiff suffers, whilst they may have been related to his treatment on 1 April 2015, cannot mean that the defendant is legally liable for those conditions.
Usual practice
A statement that someone never did a particular thing is a stronger statement of usual practice than a statement that the person always did something in a particular way. It has greater force when there is a plausible reason for never doing the thing. Dr Andric gave two plausible reasons for never having tapped more than three times; he had been taught not to, and there was little or no point in doing more than three because nothing is achieved and the patient is likely to be distressed. ([151]).
Failure to make notes
A significant issue in the case was whether Dr Andric inserted seven needles in order to aspirate the vitreous or whether he ceased the procedure after no more than three needles. In this regard, a very unfortunate aspect of the matter is that there were no notes of the procedure carried out by Dr Andric. There were two possible explanations. One is that Dr Andric failed to make any notes. The other possibility was that part of the file containing his notes had been lost. In relation to the notes, the court later said at [211]:
It is difficult to see how a doctor could owe a duty to a patient to make notes of what the doctor said or did. It may be a breach of the doctor’s professional responsibility although no evidence was led in that regard, and it may at some future time result in liability because the doctor did not treat or advise the patient appropriately as a result of not having a record of previous advice or treatment: see, for example, Elayoubi v Zipser. Similarly, a failure to make notes of advice or treatment may mean that, where there is a conflict of evidence, the patient’s account will be preferred over that of the doctor. Whilst that was a consideration in the present case, for the reasons I have given, I preferred Dr Andric’s evidence to that of the plaintiff and Ms Antonelli. Neither of the two situations posited above suggest that a failure to take notes in itself is a breach of the duty of care towards the patient.
Expert evidence
The plaintiff relied on an Italian ophthalmologist, Dr Pietro Morelli. Dr Morelli provided five reports. The first two reports were obtained by the plaintiff before his present solicitors commenced to act. For none of the five reports were letters of instructions sent, even after the solicitors commenced to act. Dr Morelli did not acknowledge the Expert Witness Code until his fourth report.
The reports of Dr Morelli, contrary to the requirements of the Expert Witness Code, did not set out the assumptions and material facts, including the documents he had, on which he provided his opinion. Even though no objection was taken to the three of his reports which were admitted into evidence, the absence of the assumptions on which he based his opinions and the absence of what he was asked to provide an opinion about mean that limited weight could be given to those opinions. ([177]).
Dr Morelli did not practise, and had never practised, as a doctor and, more specifically, as an ophthalmic surgeon in Australia, which meant that he was in no position to make a judgment on Dr Andric or Dr Fernandez in accordance with s 5O of the Civil Liability Act 2002 (NSW). ([174]).
[BillMaddensWordpress #2381]