On 16 April 2025 the Supreme Court delivered judgment in Busa v South Eastern Sydney Local Health District trading as Sydney Eye Hospital [2025] NSWSC 130.
Three main issues arose, being:
- the parties’ recall of events nearly 10 years later;
- the treating doctor’s usual practice; and
- the role of the plaintiff’s expert.
Assessment of witnesses and medical records
One of the main factual issues involved a tap and inject procedure performed by a senior registrar on 1 April 2015. A ‘tap and inject procedure’ involves the aspiration of the small amount of fluid taken from the eye by a very fine needle after the eye is anaesthetised. The fluid is then sent to pathology and the removed fluid replaced with antibiotics.
A resident medical officer (RMO) consulted the plaintiff before he was seen by the registrar.
An extract of the RMO’s notes is reproduced in the judgment with the trial judge observing:
‘I am entirely satisfied that the notes were made as she went, as she said was the case. An examination of those notes make it quite clear that it is extremely unlikely that anyone could have retained as much detail as appears in those notes and to have written it up at a later time’.
Conversely, any notes made by the registrar could not be located. The trial judge found that one explanation was that the registrar failed to do so. Another possibility was that part of the file containing the plaintiff’s records had been lost, based on the evidence of a nursing unit manager who carried out a search of the records in response to a Notice to Produce. The missing records included entries by a triage nurse and the RMO.
In assessing the witnesses, the trial judge found the plaintiff’s evidence to be unreliable for a number of reasons including:
- his recollection of events on the day was poor as the contemporaneous records demonstrated;
- his evidence was contrary to that of his sister as to the room where the registrar saw him;
- he claimed that the registrar had shoulder length hair but a photograph posted online two weeks earlier showed the registrar had short dark hair;
- the VMO who saw him after the registrar abandoned the tap and inject procedure stitched his eye, which was denied by the VMO as borne out by his records; and
- the plaintiff admitted falsehoods in his application to Linfox for employment, which indicated that the plaintiff was prepared to be untruthful to obtain a financial advantage.
Conversely, the trial judge found that even if the registrar had failed to record what he had done and what had occurred it did not cause him to doubt his credibility. He considered him to be a careful and competent doctor who did not pretend to remember more than he actually did. He was clearly very empathetic towards the plaintiff and his very unpleasant experience on 1 April 2015.
The trial judge also observed that doctors and nurses having limited or no recollection of events nearly 10 years after the event was not a matter of surprise or great significance.
The trial judge referred to the danger of courts relying on human memory many years after the events noting three cases as summarised in his judgment in Fussell v Hanrahan t/as Dignan Hanrahan Solicitors [2024] NSWSC 1388 at [45] – [46].
Usual practice
The trial judge accepted the registrar’s evidence that he had been taught that he should not attempt more than three taps to withdraw fluid. That evidence was consistent with the evidence of the experts called by the defendant hospital. He accepted the registrar’s evidence that he had never attempted more than three taps.
At paragraph 151 the trial judge observed:
‘the significant point about usual practice was the number of taps. A statement that someone never did a particular thing is a stronger statement of usual practice than a statement that the person always did something in a particular way. It has greater force when there is a plausible reason for never doing the thing’.
Expert evidence
The plaintiff relied on an Italian ophthalmologist, Dr Morelli, who produced five reports. The first two were obtained by earlier solicitors retained by the plaintiff. No letters of instruction were sent for any report and the Expert Code of Conduct was not acknowledged until the fourth report.
The trial judge noted that the plaintiff’s expert had become the plaintiff’s doctor and apparently remained so. That meant he lacked the same objectivity of the two experts retained by the defendant hospital.
Furthermore, Dr Morelli had never practised as a doctor in Australia and was in no position to make a judgment on the treating doctors in accordance with s50 of the Civil Liability Act (NSW).
Finally, contrary to the Expert Code of Conduct, Dr Morelli did not set out the assumptions and material facts including the documents that were relied on, as such limited weight could be given to those opinions.
The trial judge found for the defendant and ordered the plaintiff to pay its costs.
Key take outs
The case again demonstrates the importance and value of maintaining good records by all health care professionals involved in the treatment of a patient, particularly in a hospital setting.
It also reinforces the importance of evidence of usual practice in carrying out specific medical procedures.
This article was written by Brit Mainhoff, Partner and Don Munro, Consultant.
