Which case won?

The case for the patient
  • The neurosurgeon did not have the training or experience to perform the surgery that he undertook to remove my brain tumour.
  • The surgeon did not disclose to me that this would be his first time performing a surgery of this nature.
  • The medical experts consulted in this case all agreed that surgery was not the preferable course of action and that the tumour should simply have been monitored via scans at regular intervals.
  • The surgeon failed to disclose to me that a subsequent scan before the surgery showed that the tumour was actually smaller than it had appeared in previous measurements, adding weight to the advisability of simply monitoring it.
  • The neurosurgeon failed to disclose the risk of catastrophic complications arising as a result of the surgery. Indeed, he assured me that everything would be okay and that I would be up in a few days.
  • Conversely, the surgeon said that if I didn’t have the surgery, I was at risk of suffering a stroke, ending up in a wheelchair or getting dementia.
  • I would not have had the surgery if the neurosurgeon had given me appropriate advice. He has been negligent in his care of me.
The case for the neurosurgeon
  • At a consultation with the patient, I outlined alternative courses of action – monitoring the tumour or performing surgery to remove it. The patient preferred surgery to monitoring the tumour.
  • I did not tell the patient that the operation was simple and risk-free.
  • On the contrary, I advised the patient of the risks inherent in the surgical procedure and gave him a document explaining craniotomy surgery and its risks.
  • It did not matter that I had not performed the surgery using this specific technique before, given that I had performed the same procedure numerous times in the past using a different technique.
  • I believe I was qualified to perform the surgery.
  • The complications that occurred fell into the five to ten per cent inherent risk of complication.
  • I deny negligence in performing the surgery on the patient.

So, which case won?

Cast your judgment below to find out
Case A Case B

Case A won. You were right!

How people voted
case a64%
case b36%

Expert commentary on the court's decision

Julie Mahony
Julie MahonyPractice Group Leader
“The question for the court was what the patient would have done if he had been properly advised of four matters – that his headaches might not be cured by surgery, what the relative risks were of the two available options, that the neurosurgeon was not qualified to perform the surgery he recommended and that conservative management of the tumour was the preferable course of action.”
Supreme Court finds in favour of patient

In October 2017, the Supreme Court delivered judgment in the case Jambrovic v Day; Jambrovic v Day [2017] NSWSC 1468.

After considering the case and evidence in support put forward by both parties, the court concluded that the case for the patient, Mr Jambrovic, must succeed on the balance of probabilities.

Neurosurgeon performing procedure endoscopically

When giving evidence, the surgeon maintained that he had no recollection as to whether he had advised Mr Jambrovic that he had never performed the procedure before.

Considering the expert opinion presented in the case, the judge held that the surgeon ought to have disclosed to Mr Jambrovic that he had not previously performed the proposed endoscopic procedure and discussed it with him, before the decision to have the surgery was made.

The court noted that the surgeon had not undertaken the available advanced fellowship training for endoscopic surgery on a skull-based tumour like Mr Jambrovic’s, nor had he ever observed this procedure being performed by another surgeon.

The judge stated: “While [the surgeon] undoubtedly genuinely held the belief that he was appropriately qualified to have undertaken this surgery, I am satisfied that he was not.”

Advice given to patient by neurosurgeon

While being cross-examined in relation to the advice he had given Mr Jambrovic during their consultation, the surgeon acknowledged that there were two possible avenues of treatment – one being the surgery to remove the tumour, and the other being the ongoing monitoring of the tumour at regular intervals.

The surgeon’s evidence was that in 2011, before the surgery, he gave Mr Jambrovic advice about the risks involved in both performing the surgery and in simply monitoring the tumour, but that Mr Jambrovic preferred he proceed to perform the surgery. The court found this evidence to be “quite implausible”.

The judge summarised:

On [the surgeon’s] own evidence, Mr Jambrovic’s tumour was a benign, slow growing tumour which might not have been causing his headaches at all and the proposed surgery might not have cured those headaches. In those circumstances, choosing surgery rather than the conservative option, which involved treating the oedema and headaches, while continuing to observe the tumour, would have been entirely irrational. On the evidence Mr Jambrovic was not an irrational man.

What would the patient have decided if he had been properly advised?

The question for the court was what Mr Jambrovic would have done if he had been properly advised of four matters – that his headaches might not be cured by surgery, what the relative risks were of the two available options, that the surgeon was not qualified to perform the surgery he recommended, and that conservative management of the tumour was the preferable course of action.

The court concluded that Mr Jambrovic would not have pursued surgery if he had been advised of these matters, and that if surgery had become necessary at a later date, he would have elected to have it performed by another surgeon who was suitably qualified.

The court found that negligence by the surgeon had been established and awarded damages in favour of Mr Jambrovic and his wife.

NOTICE: This article is accurate as at the time of publication and does not constitute legal advice. Please see our legal notices page for more information. Information related to coronavirus can be outdated very quickly.

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