Medical Negligence – Case Law Update – Delayed diagnosis and treatment of Leukaemia 

In the matter of Mia-Angel Bridges-Cole by her litigation guardian Chantelle Sheree Bridges v Dr Zaffar Hussain [2023] NSWSC 18, the plaintiff, Mia-Angel Bridges-Cole by her litigation guardian Chantelle Sheree Bridges, commenced court proceedings against the defendant, Dr Zaffar Hussain, seeking damages for injuries and losses as a result of an alleged delay in diagnosis of Acute Lymphoblastic Leukaemia. In approximately May 2013, the plaintiff was diagnosed with Acute Lymphoblastic Leukaemia. Prior to this diagnosis, the plaintiff had attended upon the defendant doctor on two occasions, alongside her mother. In respect of each of these consultations with the defendant doctor, there were a number of factual issues as to: 

1. The signs and symptoms with which the plaintiff presented;
2. The history which was provided to the defendant doctor by the plaintiff’s mother;
3. The nature and extent of the examination conducted by the defendant doctor; and
4. The terms of conversations which took place between the plaintiff’s mother and the defendant doctor.  

The defendant doctor denied that he breached the duty of care that he accepted that he owed the plaintiff.  

During the hearing, the trial judge had concerns regarding the plaintiff’s mother credit. This was of importance because there were a series of factual issues regarding what took place during the two consultations with the defendant doctor.  

When assessing the factual and expert evidence in this case, the trial judge’s verdict was ultimately for the defendant doctor.  

Of note, at [127] the trial judge said: 

Once a defence under s 5O(1) of CLA is pleaded and placed in issue (as it has been in the current proceedings) the Court must determine a defendant’s liability in negligence by first addressing that provision. That approach comes about because if the matters in s 5O are made out, that supplants the analysis which might otherwise be required by s 5B of the CLA. [95] In other words, s 5O supplants the common law, and the general principles of negligence set out in other provisions of the CLA that would, but for the application of s 5O, apply to the determination of the defendant’s liability in negligence. A defendant who seeks to rely on the provisions of s 5O bears the onus of establishing the elements of that defence. 

The expert conclave report provided a consensus between the experts that the defendant doctor’s treatment of the plaintiff was as per and in accordance with the accepted practice and was otherwise entirely appropriate. 

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