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A spinal surgeon who was reprimanded in 2011 for unsatisfactory professional conduct is facing lawsuits from two patients for spinal surgery gone wrong.
The 2011 proceedings saw Dr Terrence Hillier disciplined after he operated on the wrong side of a patient’s spine.
Now, patient Peter Vonhoff is claiming damages from Dr Hillier arising from the negligent replacement of a damaged L5/S1 intervertebral disc with a Maverick brand artificial device in March 2006 at Albury Wodonga Hospital in NSW.
Given that the statement of claim was not filed until October 2020, the surgeon – whose medical defence insurer has not yet filed a formal defence – argues it is statute barred and is not maintainable because it was filed well outside the 3-year personal injury time limit.
Vonhoff recently sought to amend his claim to include allegations concerning the May 2010 procedure to fuse the spine at that level.
That claim is – on the face of it – also well out of time and would also have been likewise time barred even at the time of the original claim was filed.
Because of these issues, Vonhoff needed the leave of the court to amend the 2020 claim to include the allegation in respect of the second surgery, an idea that was only proposed when Dr Hillier’s clinical notes had been obtained by subpoena after the original claim was started.
The doctor had previously told the patient’s solicitors that the notes had been “unavailable”.
The patient submitted to Associate Justice Joanne Harrison in the NSW Supreme Court that the events of the second surgery give rise to a real questions to be considered in the context of the dispute and that leave to amend was in the overriding interest of justice.
He presented to the court reports from orthopaedist Alan Hopcroft and neurosurgeons Armin Drnda and Leigh Atkinson to verify the relevance of the 2010 surgery to his overall outcome and to the original claim.
Dr Hillier on the other hand relied on the report of neurosurgeon Andrew Kam whose view is that “Dr Hillier’s treatment of the plaintiff is an accepted by his peers as an example practice of a competent professional practice from 2006-2010”.
The court needed to consider whether it could exercise its discretion by allowing the amendment while the limitation issues were yet to be resolved.
It concluded that it was entitled to do exactly that and could leave those issues and in particular the “discoverability” element of the limitation question, until the trial.
Leave to amend the SoC was granted with the limitation issue still to be decided by the trial court.
In the second case – one that is heading to a trial in the NSW Supreme Court as we speak – Natasha Sandland has failed in a bid to file a late report from Dr Atkinson to bolster her case.
She was granted leave in August to file reports in reply to those against her from Orthopaedic Surgeons Noel Dan and Dr Turner.
Atkinson’s report was held though not to be in reply because he didn’t comment on their views.
Justice Ian Harrison was not prepared to allow preparation for the trial including the convening of conclaves and the preparation of joint reports to be disrupted by the inclusion of a further expert in the witness list.
Specialists Hopcroft and Drnda are in any event already scheduled to give evidence in support of Ms Sandland’s case against Dr Hillier which is scheduled to start on 16 October in Sydney before Justice Richard Weinstein.
Vonhoff v Hillier [2023] NSWSC 1178 Harrison AsJ, 29 September 2023 Read case
Sandland v Hillier [2023] NSWSC 1208 Harrison J, 11 October 2023 Read case
Categories: Medical Negligence