Phelan v Melbourne Health

[2019] VSCA 205

Victorian Court of Appeal

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Interrogate

Catchwords

1. Negligence
2. › Medical negligence
3. › Duty of care
4. › Duty to inform patient of treatment options including surgery
5. › Whether hospital breached duty by failing to advise of surgical options for calcaneal fractures
6. › Whether failure to discuss surgery at outpatient appointments constituted breach
1. Evidence
2. › Usual practice evidence
3. › Admissibility and weight
4. › Evidence of usual practice of medical practitioners where no specific recollection of patient
5. › Whether trial judge erred in preferring usual practice evidence over patient's specific evidence
1. Appeal
2. › Standard of appellate review
3. › Findings of primary fact
4. › Whether trial judge's findings glaringly improbable or contrary to compelling inferences
5. › Distinction between findings of primary fact and inferences
1. Negligence
2. › Medical negligence
3. › Causation
4. › Loss of chance
5. › Whether loss was no more than loss of a mere chance of better medical outcome
6. › Whether surgery would have been performed and achieved better result

Quick Take

Evidence of usual practice by medical practitioners is admissible and may be given equal or greater weight than a patient's specific recollection, depending on the nature and quality of the evidence in the particular case. There is nothing intrinsic to usual practice evidence that necessitates it being given less weight than direct evidence of specific recollection. The relationship between usual practice evidence and tendency evidence under the Uniform Evidence Act remains unresolved.