This is a medical negligence case where Metro North Hospital and Health Service’s hospital, the Royal Brisbane and Women’s hospital (the hospital), appealed to challenge the initial judgment of the NSW Supreme Court which found that it was negligent in its treatment of Ms Emily Pierce (Ms Pierce).

This claim is relevant to the legal standard required to prove causation. That is, proving that a health provider’s breach of duty of care (wrong doing) has caused or worsened injury to the patient.


Ms Pierce suffered from epilepsy since she was six years of age. In 2010, at the age of 20, Ms Pierce underwent electroencephalographic (EEG) monitoring at the hospital, with sleep deprivation and medication withdrawal to determine if surgery would be appropriate to address her epileptic episodes (the telemetry testing).

The hospital admitted that it breached its duty of care in the way it conducted the telemetry testing as it failed to treat Ms Pierce’s seizure and terminate the seizure in a timely manner. The hospital denied that it caused, or worsened Ms Pierce’s pre-existing epilepsy.

The NSW Supreme Court accepted that Ms Pierce had a condition that would progressively worsen over time but found that the hospital’s breach of duty of care caused a further worsening of her condition. The Supreme Court reduced damages (like the cost of future care) by the extent that it considered it was caused by the pre-existing epilepsy and awarded Ms Pierce $1,672,790.75 for damages caused by the hospital’s negligence. 

Court of Appeal Decision

The NSW Court of Appeal upheld the initial finding that Ms Pierce’s epilepsy was a progressively deteriorating condition.

The hospital appealed on the basis that the primary Judge in the NSW Supreme Court made an error in determining that Ms Pierce’s condition worsened after and because of the hospital’s negligence. The NSW Court of Appeal considered the evidence, including from medical experts and a diary which was kept of Ms Pierce’s seizures before and after the negligence and found that the primary Judge’s decision was correct.

The NSW Court of appeal upheld the initial judgment of the NSW Supreme Court.

Get in touch with us

At Turner Freeman we have lawyers who specialise in medical negligence claims. Our Sydney partner, Sally Gleeson, along with her team of lawyers, have a dedicated practice in medical law.

If you or someone you know has suffered as a result of medical negligence, including a situation in which you have suffered injury, or worsening of a pre-existing condition as a result of treatment by a health provider, we encourage you to call us on 13 43 63 to speak with one of our medical law experts.