DOCTOR SUED FOR MEDICAL NEGLIGENCE FOR FAILING TO VACCINATE INFANT
Choi v Dr Ong [2021] NSWSC 178 (4 March 2021)
This is a medical negligence case where the infant plaintiff allegedly contracted tuberculosis meningitis in Vietnam while traveling with her parents due to the failure of the doctor to vaccinate the infant. In this proceeding, the court determines whether the proposed settlement in the best interests of infant plaintiff.
Facts:
When Lillian was only 5 months old, her parents planned a trip to Vietnam to visit their family. In contemplation of doing so, they sought medical advice from their general practitioner, Dr Bar Ong. In particular, Lillian’s parents were concerned to know whether or not Lillian required vaccinations before leaving and generally regarding any health issues associated with traveling to Vietnam with an infant. It is alleged in these proceedings that Dr Ong advised Lillian’s parents that the BCG vaccination was not necessary.
In taking both trips, Lillian’s parents relied on Dr Ong’s advice that Lillian did not need the BCG vaccination before traveling. However, in the events that occurred, Lillian became severely ill and was admitted to hospital in Vietnam during their second visit. It is alleged in these proceedings that she contracted tuberculosis meningitis, presumably on the first trip, and that this would have been prevented if she had been vaccinated beforehand.
Lillian alleges that Dr Ong breached his duty of care in that he failed to provide any or any adequate advice or guidance concerning the risks of contracting tuberculosis in Vietnam and the benefits of, or the need for, appropriate vaccinations before traveling there. Dr Ong maintains that his treatment of Lillian was competent and accorded with widely accepted practice in Australia, supported by professional peer opinion, in accordance with S.5O of the Civil Liability Act 2002.
The court is asked in these circumstances to approve a settlement of the proceedings upon the basis of a judgment for Lillian for $210,000 plus costs.
Issue: Should the court approve the settlement of this proceeding?
Law:
Analysis:
In assessing the application for approval of the proposed settlement, the court must have regard to whether or not it is in Lillian’s best interests. The matters of present concern, as with all similar cases involving young plaintiffs whose conditions have arguably not yet settled, or about whose final prognosis there must necessarily remain some doubt, is that an unforeseen or unexpected change might occur so that the amount agreed upon turns out to be inadequate. The court’s ability to judge these possibilities must ultimately be guided by professional expert opinion. The relatively recent views of Professor Mattick suggest that Lillian’s condition has settled and that her long-term prognosis is equivalent to that of a child who has not suffered the infection sustained by her in this case. In other words, the adequacy of the settlement sum can be considered upon the basis that Lillian’s condition will not change and that predictions, such as those offered by Professor Mattick, are reliable.
The proposed settlement would appear also to make a modest allowance for the prospect that Lillian will fail to establish any entitlement to damages.
Finally, Lillian’s parents have expressed a strong view that they are in favour of the proposed settlement of the proceedings.
Conclusion: The Court approves the settlement pursuant to S.76(4) of the Civil Procedure Act 2005
