What happened

The patient was admitted with a serious heart attack in November 2016 and received stenting, temporary pacing and medication. After he died at home, close family members argued that he should have received a wearable defibrillator, Eplerenone or a cardiac MRI before discharge. His measured left ventricular ejection fraction of 56% became central to testing the assumptions behind the proposed precautions.

The issues

The questions were whether the hospital should have taken the three additional precautions and whether they would probably have prevented death. The Court also considered recognised psychiatric illness and foreseeability of such illness in a person of normal fortitude. It distinguished the s 5O peer-professional-opinion defence from the ordinary s 5B breach inquiry.

The court's decision

The hospital did not establish its s 5O defence, but the proposed precautions were not shown to be suitable for this patient's actual circumstances. The uncertain mechanism of death and lack of proof that those measures would probably prevent it also defeated factual causation under s 5D. The alternative findings on duty and psychiatric illness did not change the orders: judgment went to the hospital in all four claims, with costs against the plaintiffs.

What this case shows

High risk and a possible better outcome did not by themselves establish breach and causation. Whether the populations in the cited studies matched this patient mattered greatly. For close family members, the absence of direct witnessing of the death was not an automatic bar to the mental-harm claim.

Why another case may differ

No damages were awarded to these plaintiffs: the severity percentages and expense figures were conditional assessments. The treatment findings depended on the evidence then available and this patient's condition. Dean v Pope [2022] NSWCA 260 later discussed the controversy over s 5O's specific-practice requirement, so this trial reasoning is not presented as a settled statement of current law.

Applying it to your claim

Different facts, evidence or procedures, an appeal, or a change in the law may affect how this decision applies. This is general information, not a report of a case handled by Park & Co Lawyers.

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