Jumping to an Unsuccessful Outcome

07 JUN 2019

 

A 40-year-old man who broke his ankles after jumping from a second storey balcony has unsuccessfully sued the hospital that treated him, with the County Court of Victoria finding no breach of duty of care.

Background

On 21 January 2013, 40-year-old Sean Phelan jumped from the balcony of a second storey building, intending to land in the swimming pool below. Unfortunately, he missed the pool, landing heavily on his feet, approximately four metres below. As a result of the fall, Mr Phelan suffered comminuted fractures to the calcaneal bones in each ankle.

Mr Phelan was taken by ambulance to the Royal Melbourne Hospital where he was treated conservatively and with no surgery. Following his final appointment at the orthopaedic clinic, Mr Phelan sought a second opinion from an orthopaedic surgeon. He underwent surgery to his left ankle, but not his right ankle.

Court proceedings

Mr Phelan commenced proceedings in the County Court of Victoria against Melbourne Health, in negligence and claimed damages. He claimed that Melbourne Health failed to inform him of the option of surgical treatment for his calcaneal fractures, and that had he been so informed, he would have elected to undergo such surgery to his right ankle within the relevant time period, with a better result. Further, that Melbourne Health was negligent in not arranging for Mr Phelan to be reviewed by an orthopaedic surgeon who specialised in ankle injuries.

Melbourne Health denied liability. It alleged that surgery was contraindicated throughout the period in which Mr Phelan was treated at the hospital, on the basis that Mr Phelan was a smoker and had extensive swelling in both his ankles.

Her Honour Tsalamandris J found that the scope of Melbourne Health’s duty did not extend so far as to require it to inform Mr Phelan that he could seek a second or more specialised opinion if he so desired. Further, as Melbourne Health’s doctors followed their usual practice and informed Mr Phelan of the surgical treatment option while he was an inpatient, Melbourne Health was not negligent in not repeating such information at each subsequent out-patient appointment.

Accordingly, her Honour dismissed Mr Phelan’s claim.

For more information on the above contact Joe Bonura on (02) 4626 5077 or jbonura@marsdens.net.au.

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

The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication

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