Medical Negligence

Eight Surgeries and Still in Pain 960 577 aelegal

Eight Surgeries and Still in Pain

ESPINOS -v- JANE ELIZABETH POPOVIC as Executor and Holder of a Grant of Probate of the Estate of the Late EMIL POPOVIC [2018] WADC 94

The plaintiff, Barry John Espinos (Mr Espinos), first saw the late Dr Popovic, a neurosurgeon, in October 2010. At that point, Mr Espinos was aged 55, and was engaged in running a sand supply business.

On 10 November 2010, the late Dr Popovic performed surgery on Mr Espinos to rectify the back and spinal issues he was suffering from.

On 17 December 2010, surgery on Mr Espinos’ spine was commenced, however, due to an infection the surgery did not continue and had to be aborted. Mr Espinos was treated for the infection until late January 2011.

After further surgery from the late Dr Popovic in February 2011, Mr Espinos continued to suffer further symptoms, including severe neurological pain down his right leg. On 4 February 2011, a CT scan was performed. This scan revealed the misplacement of two of the screws used in the surgery. In total, Mr Espinos had undergone eight spinal operations by that time. The consequences of all of this for Mr Espinos have been disastrous.

A short time after this, the late Dr Popovic died, and his widow become the executor and was substituted as defendant in proceedings commenced by Mr Espinos seeking damages for negligence and breach of contract.

The Court found that “…there was a clearly foreseeable and not insignificant risk of injury in the form of complications in Mr Espinos’ spine. Firstly, in failing to treat the L5/S1 problem at the first surgery and performing surgery at the ‘wrong’ level in the same surgery. Secondly, the insertion of a screw into the nerve canal where the S1 nerve root lies also carries a foreseeable risk of significant injury or detriment to health. In the insertion of screws into any part of the spine, any reasonable specialist neurosurgeon must be required to take precautions against the risks involved in performing that surgery…

The Court concluded “…that Dr Popovic was negligent at surgery on 2 February 2011, and subsequently in failing to identify the misplacement of the pedicle screw and that the pain was caused by the screw. Dr Popovic’s fourth surgery, on 11 February 2011, was to address and explore Mr Espinos’ symptoms after 2 February which were directly caused by his negligence on 2 February 2011…

The Court was satisfied to the required standard that Mr Espinos’ ongoing pain and spinal symptoms were due substantially to the breaches of duty by Dr Popovic, and that his ongoing further treatment in relation to his spine and pain are as a result of that damage.

The Court proceeded to find “…judgment for Mr Espinos in the sum of $4,817,311 and… costs”.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

‘Relatively Easily’ Brain Surgery Has Tragic Results 960 577 aelegal

‘Relatively Easily’ Brain Surgery Has Tragic Results


Prior to his injuries the plaintiff was a very social person. He enjoyed a range of leisure activities like, fishing and cooking, home handy work including renovating and tinkering with cars, and enjoyed his work as well.

In December 2005, the plaintiff was diagnosed with a brain tumour. He had been experiencing headaches for some time, he was referred to a neurosurgeon.

The tumour was determined to be benign but needed to be removed. The plaintiff and his wife were advised that this kind of tumour was ‘relatively easily’ managed. The phrase ‘relatively easily’ must of course be understood in the particular context of brain surgery, with all its significant inherent risk.

On 23 January 2006, the neurosurgeon performed the required surgery and about 90% of the tumour mass was removed.

The headaches began to return however, along with some vision problems. Once again, the neurosurgeon was consulted. He advised that it would be necessary to deal with the part of the tumour that remained.

The plaintiff was admitted to hospital for the surgery. The surgery was performed the next day. It was not a success. In the course of the surgery the neurosurgeon nicked the plaintiff’s carotid artery causing worrying bleeding. The attempt to remove the tumour was abandoned.

When the plaintiff left hospital, his condition was stable, except perhaps for a fairly constant and consistent mucous discharge from his nose. The plaintiff had been advised not to blow his nose, but this discharge meant that he was constantly wiping it.

Over the course of the next few weeks the plaintiff and his wife consulted with the neurosurgeon many times over the phone seeking medical advice, including for a severe sneeze suffered by the plaintiff.

In the early hours of one morning, the plaintiff’s wife woke up to find him complaining about having ‘quite a severe headache’.

The following morning, the plaintiff’s wife called the neurosurgeon and told him that her husband had a very uncomfortable night, that he was in a lot of pain, and that he had a really bad headache. She said that he responded by saying to her something to the effect of ‘well you need to take him into the emergency department. There could be something going on with his aneurysm thing and he just needs to be in the hospital over the weekend so that they can observe him’.

After presenting to the hospital, the plaintiff was admitted to a ward, an observation made suggested that the plaintiff was ‘OK‘. Just eight minutes later he was ‘found to be unresponsive’ and experiencing ‘hemiplegia‘ (That is, one side of his body was paralysed). Shortly after this he lost consciousness, an emergency team was called, and the plaintiff was intubated and ventilated. By this time a bacterial meningitis had caused the plaintiff severe and irreversible brain damage.

The plaintiff continued to have multiple medical episodes, being the result of neurological problems caused by the brain injury.


The breach alleged against the neurosurgeon by both the plaintiff and the hospital was that he neurosurgeon failed to provide the plaintiff with an appropriate warning or advice after the plaintiff had sneezed out a piece of what appeared to be fatty material. The neurosurgeon should have told him to immediately go to hospital if he developed ‘other symptoms including a more severe headache, stiff neck, high temperature or photophobia‘. That obligation is said to arise from a number of facts and circumstances, sometimes summarised by the notion that the plaintiff was a ‘complicated case’.

The plaintiff’s allegation of breach as against the hospital is that, given the plaintiff’s history and his symptoms on presentation at the ED and throughout the course of the day, the staff at RPH failed to act in a timely way to treat the plaintiff’s bacterial meningitis.


The judge stated that “the plaintiff’s former life has been taken from him. He is left not only with significant physical disabilities, but with the cognitive and emotional problems that have been described, there is no prospect whatever of recovery” and had no hesitation in finding that the failure to commence intravenous antibiotics and corticosteroids by a certain time breached the duty of care owed by the hospital to the plaintiff. In that regard, the evidence presented was that if the plaintiff had been treated with intravenous antibiotics and corticosteroids earlier, then, on the balance of probabilities, the plaintiff would not have suffered an adverse outcome from the bacterial meningitis infection.


The judge ordered that the plaintiff should have judgment against the hospital for a substantial amount but dismissed the action against the neurosurgeon.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Were you warned? Your Doctor’s Duty 1024 683 liz-birdbrain

Were you warned? Your Doctor’s Duty

Were you warned? Your Doctor’s Duty

In the unanimous High Court decision of Wallace v Kam [2013] HCA 19, the relevant principles of causation and the duty. To warn patients of potential complications prior to a medical procedure being performed were once again highlighted. It was particularly emphasized that all patients have a legal right to make their own medical decisions (as initially proposed in Rogers v Whitaker [1992] HCA 58) and that doctor’s have a similar duty to inform patients about any material risks inherent in any proposed treatment.
The Court also answered the question of causation and posed the further question as to whether a doctor who negligently does not inform a patient about two or more material risks of a procedure would  entitle the patient to compensation should a risk not mentioned materialse.

Find out more about medical negligence. 


Mr Wallace sought medical assistance in relation to a lumbar spine disease and Dr Kam (a Neurosurgeon) performed a surgical procedure on him which was riddled with inherent risks, namely:-

  1. whether temporary local damage to nerves within his thighs (bilateral femoral neurapraxia) could result from the patient lying face down on the operating table for the duration of the medical procedure; and
  2. that there was a chance of permanent and catastrophic paralysis resulting from damage to his spinal nerves.

Dr Kam did not warn Mr Wallace of any of the aforementioned risks.  The risk of bilateral femoral neurapraxia materialised and left Mr Wallace in severe pain for some time.  In this regard Mr Wallace claimed that Dr Kam had negligently failed to warn him of the risks and had he been warned of such risks, he would not have undergone the surgical procedures recommended by Dr Kam and would therefore not have suffered the relevant neurapraxia.

At the Court of first instance it was held that the evidence showed that only the second risk would have prevented Mr Wallace from proceeding with the relevant operation.

On Appeal by Mr Wallace he stated that the Court at first instance had erred in two respects, namely firstly by failing to consider whether a paralysis warning might have lead him not to have the operation at all; and secondly in finding that the only irrelevant breach was Dr Kam’s failure to warn of the risk that in fact materialized.

The majority of the Court dismissed the Appeal and held that the relevant New South Wales legislation, existed so as to protect a patient from unacceptable material risks and where those risks were capable of being separated, a successful recovery could only be made in respect of  risks that were both material and had in fact materialized.

On a further Appeal by Mr Wallace to the High Court of Australia, the findings of the New South Wales Court of Appeal were upheld.   In dismissing Mr Wallace’s Appeal the High Court held that in order to determine causation at common law, a party has to navigate through two very important questions, namely:

  1. as to how the actual harm occurred; and
  2. as to whether there is any legal responsibility which can be attributed to the particular surgeon.

In applying the above, the High Court came to the following conclusion:-

  1. Dr Kam had breached his comprehensive duty to exercise reasonable care and skill in the provision of professional advice and treatment to Mr Wallace by failing to warn him of the risk of neurapraxia and the risk of paralysis inherent in the surgical operation;
  2. Dr Kam’s breach of duty was a necessary condition of the neurapraxia that Mr Wallace had sustained and with regard to factual causation the Court was satisfied that because Mr Wallace would not have chosen to undergo this surgical procedure and would therefore not have sustained the neurapraxia if he had been warned of all the material risks; and
  3. It was not appropriate for Dr Kam’s liability to extend to the neurapraxia sustained by Mr Wallace in circumstances where he would not have chosen to undergo the surgical procedure had he been properly warned of all material risks, but where he would have chosen to undergo the surgical procedure even if he had been warned of the risk that in fact had materialised.


This decision reinforced the principles of Rogers v Whitaker that a medical practitioner has a duty to warn a patient of all material risks involved in a particular procedure and it continues to indicate that negligence can only be established if a causal relationship exits where the outcome warrants imposing the responsibility for the harm on the medical practitioner. This clearly demonstrates that a medical practitioner will not be liable for damages in negligence for failing to warn about a material risk that does not materialise.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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