This much anticipated decision was delivered by Judge Goetze on 25 May 2012. As widely expected, Judge Goetze found in neurosurgeon Michael Lee (and paediatric oncologist Dr Baker’s favour) and dismissed Daniel Jordan’s claim.

The case is interesting as it raised the question of the obligations upon a surgeon (or other medical practitioners) to advise a patient of alternatives to their preferred approach to medical care.

It was not in issue that Michael Lee acted reasonably when, following diagnosis of Daniel’s brain tumour in 1996 (when Daniel was 11 years old), he advised that in his view the risks of surgery at that time outweighed the benefits to be gained from surgery (see [37]).

The crux of the case put on Daniel’s behalf was that Mr Lee (and Dr Baker) were negligent in failing to advise that other competent neurosurgeons would have performed such surgery and that it was the first choice for curative treatment of such tumour (see [8]).

Put another way, it was argued that the doctors had an obligation to advise Daniel + parents of the fact that although they would not recommend it, other surgeons would, even if such surgeons were ‘avant garde or radical’ ([38]). This was initially premised on a claim that the doctors had been specifically asked this question and had indicated there were not. This was not accepted by Judge Goetze.

The matter was left therefore to be a question of whether absent such a specific question, a surgeon had an obligation to advise that other neurosurgeons’ acting reasonably, contra their view, would recommend surgery.

Such obligation was not accepted as arising by Judge Goetze. Primarily, this was a factual conclusion by him that there were not such surgeon’s who would have reasonably recommended earlier surgery for Daniel. This involved his rejection of the evidence to the contrary given by Charles Teo, neurosurgeon.

2 general observations about the case are:

  • The importance that the case as put in opening is supported by the course of evidence. In this case there was a divergence between what was said would be put forward by Daniel’s team + what evidence actually then followed.
  • The onus upon an expert witness. Regardless of how well qualified, an expert will be of little use (or weight) if they are not prepared or able to put the time and effort into case preparation, in terms of review of the relevant scientific literature + preparedness to fully backup their opinion’s basis, both in terms of the science + a detailed understanding of the facts of the particular case..