ESPINOS -v- JANE ELIZABETH POPOVIC as Executor and Holder of a Grant of Probate of the Estate of the Late EMIL POPOVIC  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”.
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