The year has not got off to a good start for Plaintiffs in medical negligence claims in our Court of Appeal. In Hammond v Heath [2010] WASCA 6, the Court of Appeal on 19 January 2010 dismissed Mr Hammond’s appeal against the District Court Judge’s finding, rejecting his medical negligence claim against Dr Heath and Dr Heath’s employer, the Minister for Health (as operator of Joondalup Health Campus).

The case concerned hernia surgery.

The Appeal challenged the District Court’s Judge’s decisions rejecting Mr Heath’s claim, firstly, that Dr Heath ought to have warned Mr Hammond of risks associated with allowing mesh to remain in situ following surgery that had been performed in May 2001. 

The Court of Appeal led by Chief Justice Martin rejected this ground on the basis that as the Commissioner had found, there was no evidence that at the time, and in the circumstances, allowing the mesh to remain in place would reasonably have been thought to pose any appreciable adverse risk to Mr Hammond [17].

The next attack upon the District Court Judge’s decision was in relation to the finding that Dr Heath was not negligent in failing to remove the relevant mesh on 28 August 2001.

The difficulty (which proved insurmountable) for the Appellant on this ground was the fact that Dr Heath had given uncontradicted evidence as to his reasons for not doing so on this date and particularly that he wishes to minimise surgical intervention as much as possible given Mr Hammond’s general poor health. Dr Heath was not at Trial cross-examined about this decision or its rationale and no expert evidence was put forward by any other surgeon suggesting that his reasoning was unreasonable.

The appeal was therefore dismissed.