A hospital which was ordered to pay damages of more than $11m to a man who suffered from bacterial meningitis following brain surgery, and with no contribution from the neurosurgeon, has been unsuccessful on appeal, with the Supreme Court of Western Australia Court of Appeal upholding the primary judge’s findings and dismissing the contribution proceedings.
Mr Peter Panagoulias was diagnosed as having a benign tumour near the pituitary stalk in his brain. Neurosurgeon Mr Popovic performed surgery, removing about 90% of the tumour mass. Eight months later, Mr Panagoulias had further brain surgery to remove the remaining 10% of the mass. However, the second surgery was abandoned due to bleeding after Mr Popovic nicked Mr Panagoulias’ carotid artery. The lacerated artery was treated and he was discharged from hospital 6 days later.
A month later, Mr Panagoulias presented to the emergency department at Royal Perth Hospital. He had developed bacterial meningitis from which he suffered severe and irreversible brain damage, requiring 24-hour monitoring and supervision for the rest of his life.
Mr Panagoulias commenced proceedings in the District Court of Western Australia against East Metropolitan Health Service, in negligence and claimed damages. East Metropolitan is legally responsible for the liabilities of Royal Perth Hospital. He also sued his neurosurgeon, Mr Popovic.
As against East Metropolitan, the primary judge found in favour of Mr Panagoulias, that RPH staff breached the duty owed to Mr Panagoulias by failing to act in a timely way to diagnose and treat the bacterial meningitis, and that the failure by RPH staff to treat Mr Panagoulias in a timely way was a necessary condition of the severe brain injury he acquired. However, the claim against the surgeon, Mr Popovic, was dismissed on the basis that neither breach nor causation had been established. Damages were awarded in the total sum of $11,634,527.
East Metropolitan appealed the primary judge’s findings as against Mr Popovic. It did not challenge the finding that it is liable in negligence. Rather, the appeal challenged the judge's dismissal of Mr Panagoulias’ claim against Mr Popovic.
The court found that East Metropolitan failed to prove that Mr Popovic did not provide the appropriate advice to Mr Panagoulias in the course of the telephone conversation. East Metropolitan failed to prove a breach by Mr Popovic. Further, East Metropolitan failed to prove that any breach by Mr Popovic caused the harm suffered by Mr Panagoulias. 
Accordingly, the court dismissed East Metropolitan’s appeal.
This article first appeared in the CCH Australian Tort, Personal Injury, Health and Medical Law Tracker and is reproduced in full with permission from CCH, a division of Wolters Kluwer Australia: www.wolterskluwer.cch.com.au
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