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Home | Blog | Jambrovic v Day [2017] NSWSC 1468

Mr Jambrovic was successful in his medical negligence claim against Dr Day, neurosurgeon, who recommended surgery of a type which Dr Day performed for the first time on 31 March 2011 to remove a tumour endoscopically, through the nasal passage (“the surgery”). Mr Jambrovic suffered catastrophic complications during this surgery.

This claim is relevant to the extent of the duty of care owed in the provision of medical advice and highlights the importance of statements and evidence required to overcome factual disputes. This is notoriously difficult for plaintiffs in failure to inform cases as their version of events is not always believed and their evidence as to what they would have done, if properly informed, cannot be used to support their case due to hindsight bias.

Summary

  • The claim against Dr Pearson, ENT specialist and the allegation against Dr Day for negligent performance of the surgery was ultimately withdrawn. 
  • Prior to February 2011, Dr Day had recommended surgery for carpel tunnel syndrome resulting from nerve compression which Mr Jambrovic declined when his symptoms resolved. 
  • In February 2011, CT scans identified a tumour in Mr Jambrovic’s brain. He consulted Dr Day on 2 March 2011 with his wife. Dr Day advised him that he was suffering a meningioma, a tumour.
  • The experts on the issue of negligence agreed that the surgery was not the preferable course since there was neither appreciable risk of dementia or stroke if the tumour was not surgically removed. They also agreed that Dr Day did not have the training or experience required to perform the surgery; he should have advised Mr Jambrovic that this was the first time he would perform such a surgery and that there was a 5 to 10% risk of materialization of the catastrophic complications which Mr Jambrovic suffered. Mrs Jambrovic’s evidence that advice as to same was not given by Dr Day was accepted. The alternative to surgery was conservative treatment with regular monitoring of the tumour.
  • Under cross-examination, Dr Day claimed for the first time that he had told Mr Jambrovic that he had never performed the type of surgery which he had recommended. He finally said that he had no recollection of providing this advice but that it would have been in accord with his usual practice to do so. The Court found that this account should have been referred to in Dr Day’s statement and put to Mrs Jambrovic under cross-examination.
  • The document which Dr Day provided to Mr Jambrovic explained the risks relating to a craniotomy but not the endoscopic procedure which Dr Day performed which was quite different as it involved removal of a tumour via the nasal passage, rather than the skull.
  • Mr and Mrs Jambrovic had been married for 50 years. Mrs Jambrovic gave evidence in relation to the advice provided by Dr Day, that she and her husband often made decisions jointly, including the decision to undergo the surgery and that Mr Jambrovic required considerable care since the surgery and his hospital discharge in December 2011. Their two daughters gave corroborative evidence.
  • Justice Schmidt found that Dr Day had breached his duty of care by failing to disclose his lack of experience and training in the procedure he recommended and that he should not himself have undertaken this surgery.
  • To prove that the breaches of duty of care caused Mr Jambrovic’s injuries, he also needed to prove that if properly advised, he would not have undergone the surgery. Justice Schmidt was satisfied that: “if the decision to have the surgery was made after Dr Day gave advice of the kind it was put to Mrs Jambrovic he had given at the consultation on 2 March 2011, which she denied receiving, that decision would have been quite irrational and one which Dr Day should have counselled against, given the comparative risks of the two available courses.” Based on the medical expert evidence, the logical decision would have been not to undergo the surgery since the potential risks of same were outweighed by the benefits.
  • Justice Schmidt concluded that if properly informed, Mr Jambrovic would have been referred to a surgeon qualified to perform the surgery and not pursued same. Accordingly, Mr Jambrovic would have avoided his catastrophic injuries. That Mr Jambrovic would not have had the surgery if properly informed was supported by Mr Jambrovic’s decision in 2009 not to undergo surgery which Dr Day had then recommended.

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 as a result of neurosurgery, we encourage you to call us on 13 43 63 to speak with one of our medical law experts.

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