Ms Susan Roberts is a trained lawyer and a member of the NSW Civil and Administrative Tribunal. She brought a claim for compensation for medical negligence against her orthopaedic surgeon, Dr Shimmin, claiming that he was negligent in the way that he performed a total knee replacement in 2012, leaving her with acute pain and loss of function of the knee.
The case of Roberts v Shimmin [2024] NSWDC 171 is a reminder that claims for medical negligence often rest heavily on the expert medical evidence which each party introduces to the Court, and that the evidence of a treating expert is carefully considered by a Court when determining any factual findings.
Although this is a NSW case, the Court's decision is based on factors relevant to other jurisdictions, including Victoria. For a successful medical negligence claim in Victoria, you need to prove the following:
- Negligence: that the treatment provided to them fell below a reasonable standard;
- Causation: that the negligence was a cause of your injuries or loss;
- Injury: that you have suffered a permanent "significant" injury; and
- That your claim is brought within a strict time limit.
BACKGROUND TO THE KNEE INJURY
Ms Roberts suffered an injury to her knee as a child. During her youth she had multiple operations on her knee, which culminated in the removal of her right kneecap.
In early January 2012, she suffered an acute episode of knee pain when her knee locked when she was standing up before unlocking shortly after.
In March 2012, Ms Roberts went to see orthopaedic surgeon Dr Andrew Shimmin in Melbourne. She'd been experiencing worsening right knee pain over a period of several weeks. After considering and attempting other treatments, Dr Shimmin performed a total knee replacement on Ms Roberts on 18 June 2012.
After the knee replacement surgery, she suffered severe pain and loss of function in her knee, which she says was caused by the way that the operation was performed.
Eventually, following ongoing pain and a number of flare-ups, a revision procedure was performed by Associate Professor Paul Stalley on 4 September 2018, which stabilised her condition.
SURGEON SUED FOR MEDICAL NEGLIGENCE
Ms Roberts sued Dr Shimmin, alleging that the total knee replacement was performed negligently and that this failure has caused her pain, disability and loss. Specifically, she claimed that Dr Shimmin implanted the replacement at an incorrect angle, in circumstances Ms Roberts was especially vulnerable to because she did not have a kneecap.
Dr Shimmin denied any breach of duty (negligence) and argued that the placement of the prosthesis was intentional, and was placed so as to better align the knee.
While this was accepted, the Court referred to the notes of Dr Shimmin in concluding that he treated the operation as a "routine knee replacement", without particular reference to Ms Robert's particular condition and pre-existing injuries.
COURT'S CONSIDERATIONS IN THE MEDICAL NEGLIGENCE CLAIM
The key to determination of the case was the Court's analysis of the evidence of Ms Roberts' treating surgeon Dr Stalley (who performed the revision surgery), and independent experts called by both Ms Roberts and Dr Shimmin.
Dr Coolican, an orthopaedic surgeon called to give evidence for the Defendant (Dr Shimmin), contended that imaging taken during the operation performed by Dr Shimmin did not reveal a problem with the angle or alignment of Ms Roberts's knee.
Associate Professor Stalley gave evidence as a treating expert for the Plaintiff (Ms Roberts), and was of the opinion that he observed that the replacement had been incorrectly positioned when he performed corrective surgery in 2018.
Both Associate Professor Stalley and Dr Coolican agreed that Ms Roberts' pre-existing condition made her more vulnerable to any malalignment in the primary knee replacement.
In weighing the competing evidence, the Court preferred the opinion of Assistant Professor Stalley, who was said to have:
"the singular benefit of conducting an invasive assessment, which allowed him a 3D view of the tibial component and, on its removal, the proximal tibia itself. He did so in circumstances where he was conscious of the need accurately to record the extent of any malpositioning"
While Dr Coolican had seen imaging of the knee and the medical records, Assistant Professor Stalley had seen inside the knee when performing surgery in 2018.
COURT FINDS SURGEON NEGLIGENT
The Court found that the tibial part of the knee replacement was misaligned by a greater degree than Dr Shimmin had said would be acceptable.
The Court found that Dr Shimmin had been negligent in the performance of the total knee replacement procedure, and that the negligence caused Ms Roberts pain, suffering, disability and economic loss, entitling her to compensation due to medical negligence.
The Court awarded Ms Roberts $687,207 in compensation for her injuries, including $175,000 for general damages (or pain and suffering damages).
GET HELP FROM A MEDICAL NEGLIGENCE LAWYER
This decision is a reminder that evidence provided by any medical experts (both for the Defendant and Plaintiff) during a Court trial carries significant weight when considering the outcome of a case.
If you're considering a medical negligence claim, having an experienced personal injury lawyer early on can make a significant difference to the likely success of your claim. We offer a free initial consult and run cases on a "no win, no fee" basis. So, it costs you nothing to find out where you stand.
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