In our previous article, we explained a failure to diagnose and delayed diagnosis in medical negligence cases.

Overview:

• A failure to diagnose is when a condition or injury that is apparent is not recognised by the medical practitioner/health care provider;
• A delayed diagnosis is when the medical practitioner/health care provider does not diagnose the condition or injury within an appropriate time frame; and,
• The failure to diagnose / delayed diagnosis has caused the injured person to suffer further injury loss and damage.
  

 So, what happens next?

Damages in failure to diagnose and delayed diagnosis

If the injured person is successful in establishing breach and causation, then they will be entitled to compensation for their injury, loss and damage.

Compensation is assessed under heads of damage, with the four most common heads of damage being:

1. General damages / non-economic loss
2. Economic loss
3. Medical treatment and out of pocket expenses
4. Care and assistance

Damages are calculated differently in each state and territory in Australia. You can read more about how damages are calculated here.

Interestingly, there is not a significant amount of case law identifying the damages awarded in medical negligence matters. This is because many medical negligence matters settle outside of Court by way of alternative dispute resolution, which simply means by way of negotiation, with or without the assistance of a mediator.

There are significant benefits to settling outside of Court for both a Plaintiff and Defendant, making this the most common way for medical negligence matters to resolve.

That being said, we have summarised some of the available case law setting out damages in failure to diagnose and delayed diagnosis matters.

Jacqueline Lee Freestone -v- Murrumbidgee Local Health District [2016] NSWDC 53

The matter of Freestone involved a delayed diagnosis of a kidney lesion on an abdominal CT scan.

As a result of this failure, the diagnosis was not made until some four years later, at which point the Plaintiff required extensive treatment.

It was accepted that the delay in diagnosis affected the prospects of recovery. However, the Plaintiff failed on a number of other points of causation.

Nevertheless, the Plaintiff was awarded $609,939.50 in damages.

Panagoulias -v- The East Metropolitan Health Service [2017] WADC 118

The matter of Panagoulias involved a delayed diagnosis of bacterial meningitis, which caused severe neurological and physical injury.

As a consequence of the injuries and disabilities sustained, the Plaintiff required ongoing accommodation and care for the remainder of their life.

The Court awarded $4,987,188.00 in damages.

Elysee -v- Hassan [2018] NSWDC 137

The matter of Elysee involved a failure to monitor the Plaintiff’s renal function in circumstances where he had a history of hypertension and diabetes. As such, the condition was undiagnosed and the Plaintiff was not referred for the required treatment.

As a consequence, the Plaintiff’s renal function deteriorated significantly to the point that he would likely require dialysis.

Interestingly a 10% reduction of the award of damages was made to account for contributory negligence. * 

The Court awarded $209,700.00 in damages after a reduction of 10% for contributory negligence.

*Contributory negligence occurs when the Plaintiff fails to take reasonable care of their own safety, which contributes to the harm. If a Plaintiff is found to be contributory negligent, this will result in a reduction of the award reflective of the extent that person is found to have contributed to their injury, loss, and damage. 

Nouri -v- Australian Capital Territory [2020] ACTCA1

The matter of Nouri involved the birth of a child with severe disabilities and the lost opportunity to terminate the pregnancy.

The Plaintiff’s in this matter argued that the hospital withheld information about their child’s condition. Had such information been disclosed to the Plaintiff’s they would have terminated the pregnancy.

Unfortunately, this case was unsuccessful as the Plaintiffs were unable to prove causation, that being that they would have been able to obtain a termination in the late stages of pregnancy.

However, the Court notionally assessed damages at $1,813,807.00 in relation to the costs of raising a child with disabilities.

Conclusion

As can be seen from the above cases, damages in failure to diagnose and delayed diagnosis matters range significant on the basis of the injury, loss, and damage sustained, the jurisdiction the claim is in, and whether there is a reduction for contributory negligence.

If you have suffered injury, loss and damage due to a medical negligence incident, you should consult a medical negligence solicitor to discuss your rights and entitlements to compensation.