Our Health and Medical Law team handles many medical negligence cases for our clients. We help them to gain compensation for their economic and non-economic losses resulting from failures by health practitioners and health organisations.
Those failures don’t just include misdiagnosing an illness, performing an unsuitable procedure or incorrectly performing a procedure. Another issue can be a medical practitioner performing an unnecessary procedure or over-servicing a patient.
Over-servicing not only occurs in medicine but also in dentistry.
I was recently reminded of a case which established a precedent for awarding extra compensation where the practitioner knows the treatment is unnecessary.
Extreme over-servicing – The case of Dean v Phung
In the case of Dean v Phung [2012] NSWCA 223, dental surgeon, Dr Phung, took over-servicing of his patient to its extreme.
Mr Dean suffered minor injuries to his chin and teeth when struck by a piece of falling timber. His employer arranged for him to attend Dr Phung for treatment. In just over one year, he was treated on 53 occasions, costing his Workers Compensation insurers $73,640. During that time, Dr Phung carried out root canal therapy and fitted crowns on each and every one of Mr Dean’s teeth.
The Civil Liability Act 2002 does not cover liability arising from the actions of an individual intended to cause injury. Any person who has suffered intentional harm is entitled to claim additional compensation for punitive or exemplary damages. When Mr Dean became aware that he had been unnecessarily treated, he sued Dr Phung, for both negligence and exemplary damages. Dr Phung admitted liability for his negligence and conceded that the treatment was unnecessary, but denied that he had intentionally caused any harm.
When the case came to trial, the judge found Dr Phung to be incompetent but was not satisfied that he had been fraudulent or dishonest. Mr Dean appealed this decision, arguing that he had been deceived into giving his consent to the treatment. Furthermore, since Dr Phung’s sole motivation for this treatment was financial, there was an intention to cause injury, and was liable for trespass, in treating him without proper consent.
Legal principles regarding consenting to medical treatment
The Court of Appeal took this opportunity to lay down some broad principles in respect of consenting to medical treatment.
- If the procedure is unrelated to the medical condition, there cannot be any informed consent.
- The practitioner’s motive for the treatment must be examined.
- Whenever there is a dispute in respect of informed consent, the burden of proof lies with the medical practitioner.
Extra compensation for Mr Dean
The Court concluded that the dentist probably did not believe the treatment to be necessary. Mr Dean could not consent to treatment that he did not need so Dr Phung had committed an act of trespass.
Mr Dean was awarded $1,743,000 including exemplary damages of $150,000.
This must have been a kick in the teeth for Dr Phung! More importantly, it established the principle that where treatment is known to be unnecessary, extra compensation can be awarded.
Let us fight for you or your loved one
Taking legal action can also help change health care practices and hold health care professionals to account so other people do not have to experience what you went through.
If you or a loved one have experienced injury or loss as a result of medical negligence or dental negligence, do not hesitate to talk to one of our caring, expert, health lawyers about the options available to you. Simply call 1800 874 949 or fill in the form below, and we will be in touch.
