July 31, 2020
The Court of Appeal dismissed a claim where the Appellant, who was being treated following a stroke, suffered further strokes whilst at Cairns Base Hospital (the Hospital). The Appellant alleged that the further strokes were caused by the hospital administering thrombolysis (treatment to dissolve clots in blood vessels).
The Appellant was represented by her brother, Mr Molder who was also the holder of Power of Attorney of the Appellant. Mr Moder held no legal qualifications.
No expert medical evidence was led on behalf of the Appellant’s case at Trial, this led to the ultimate failure of the case at trial and on Appeal. This judgement reinforces the need to lead expert medical evidence in support of a case when attempting to establish a breach of duty of care on behalf of a medical practitioner.
It also emphasises the need for legal advice.
During the trial, Mr Moder, on behalf of the Appellant argued that:-
- It was negligent to administer the thrombolysis treatment.
- It was negligent to administer the prothrombinex (used as a prevention and treatment of bleeding in patients).
- Either the thrombolysis or the prothrombinex caused the further strokes.
- But for the treatment, the Appellant would not have suffered the strokes.
Mr Moder did not call any expert evidence to support the case on behalf of the Appellant during the trial.
He argued that because of recognised contraindications to the administration of thrombolysis to the Appellant, thrombolysis should not have been administered and caused the additional stroke. In his closing address Mr Moder submitted that it was the thrombolysis that caused the further strokes.
The Defendants called three doctors to give evidence during the trial, Dr Durairaj (the First Respondent to the Appeal), Dr Dermedgoglou and Dr Brown. Dr Durairaj and Dr Dermedgoglou gave evidence on factual issues regarding their involvement in treatment. Dr Brown was called as the expert witness providing evidence on treatment of stroke victims.
Both Dr Brown and Dr Durairaj (who His Honour at trial accepted was a reliable and honest witness) gave evidence to the effect that:-
- It was appropriate to administer thrombolysis.
- Thrombolysis did not cause the further strokes.
- The further strokes had occurred by the time the Appellant was infused with prothrombinex.
- The infusion of prothrombinex did not cause the damage to the Appellant.
The Appellant also ran a failure to warn case. That is, that there was a failure to warn the Appellant of the possible ramifications of the treatment.
Judgment at Trial
His Honour accepted the evidence of Dr Brown supported by the factual witnesses that the treatment was appropriate.
On appeal, the Appellant sought orders that:-
- The Appellant was caused a major ischemic stroke by post-thrombolysis infusion of prothrombinex blood clotting agent at the Cairns Base Hospital.
- The Respondents are liable for the injury caused to the Appellant by the infusion of prothrombinex.
- The Respondents pay all costs of the proceedings.
Of importance, was that the Appellant failed to make any submissions that there was an error of law. The Appeal was against factual findings which were based on uncontradicted expert evidence as the Appellant had not called any expert to give evidence at trial.
The Court of Appeal noted that an expert may give opinion evidence at trial where there is a field of specialised knowledge and the expert witness is an expert in that field and the opinion is based on that expertise. Additionally, if the evidence is within the common knowledge of persons, the evidence ought to be excluded as evidence which is not expert opinion.
The Court of Appeal thus determined that it necessarily follows that if there is evidence of an expert, which is by definition beyond the common knowledge of persons not trained in the relevant field, there must be some rational basis for a tribunal of fact to reject it.
The Court of Appeal accepted that in this case, Dr Brown and Dr Durairaj were well qualified. They had access to good primary evidence upon which to form their opinion. The learned primary judge had the opportunity to assess the doctors giving evidence and being cross-examined and accepted their evidence. A Court of Appeal conducting an appeal by way of re-hearing must consider the evidence itself and draw its own inferences but must also recognise the advantage enjoyed by the trial judge in seeing and hearing the witnesses.
On the issue of whether there were contraindications to administering the thrombolysis, the Court of Appeal determined that it was open to the learned primary Judge to accept the evidence of the two doctors. The evidence was cogent, not contraindicated by any other evidence and His Honour had not erred in accepted it.
The Court of Appeal also accepted the finding that there is no evidence that the thrombolyisis or the administration of prothrombinex caused the strokes. The Court determined that the findings were well supported by the evidence and there was no basis for appellate interference.
Further issues were discussed in relation to consent. However, the overall the issues focused on the fact that the treatment was appropriate, supported by expert opinion and therefore the appeal was dismissed.
The case highlights the important of expert evidence in medical negligence cases. A Court is more likely to accept a proposition about medical treatment, when adduced by an expert.
As such, it is important for those with legitimate claims to seek legal advice, so that relevant expert opinion can be sought at an early stage. Those seeking to advance a claim without this grounding are setting themselves up for ultimate failure.
 Sochorova v. Dr Durairaj & Anor  QCA 158 at 17
 Sochorova v. Dr Durairaj & Anor  QCA 158 at 21
 Sochorova v. Dr Durairaj & Anor  QCA 158 at 22
 Sochorova v. Dr Durairaj & Anor  QCA 158 at 24
 Sochorova v. Dr Durairaj & Anor  QCA 158 at 25
 Sochorova v. Dr Durairaj & Anor  QCA 158 at 26
 Sochorova v. Dr Durairaj & Anor  QCA 158 at 28
 Sochorova v. Dr Durairaj & Anor  QCA 158 at 34
 Sochorova v. Dr Durairaj & Anor  QCA 158 at 36
 Sochorova v. Dr Durairaj & Anor  QCA 158 at 37 – Clark v. Ryan (1960) 103 CLR 486
 Sochorova v. Dr Durairaj & Anor  QCA 158 at 38 – Honeysett v. The Queen (2014) 253 CLR 122 at 131
 Sochorova v. Dr Durairaj & Anor  QCA 158 at 39
 Sochorova v. Dr Durairaj & Anor  QCA 158 at 41
 Sochorova v. Dr Durairaj & Anor  QCA 158 at 46
 Sochorova v. Dr Durairaj & Anor  QCA 158 at 61