Kaplan v Alfred Health [2026] VSC 30 (Link to JADE).
Ms Kaplan’s underlying claim was a medical negligence claim against Alfred Health for failing to undertake appropriate investigations, leading to delay in the diagnosis of a cervical spine abscess, which in turn led to osteomyelitis and neurological injury. Ms Kaplan alleged that, as a result of the neurological injury, she developed impaired balance and gait and suffered consequential falls.
The Medical Panel determined that the degree of whole person impairment resulting from the physical injury alleged in Ms Kaplan’s claim did not satisfy the threshold level.
Ms Kaplan sought that this determination be quashed on the basis that the Panel failed to consider and determine whether she had sustained a lumbar spine injury resulting from a fall on 8 April 2024, and whether such injury constituted a potentially compensable injury. Ms Kaplan alleged that, in failing to consider and assess the lumbar spine injury, the Panel fell into jurisdictional error and denied Ms Kaplan procedural fairness.
The Court ruled that the panel failed to consider this mandatory relevant consideration and that there was a realistic possibility that consideration of the mandatory relevant consideration could have resulted in a different decision. The determination of the Panel was quashed and the medical question remitted.
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