August 30, 2012

A hernia repair patient who claims to have been persuaded at the eleventh hour – “after she had been prepped for theatre” – to undergo a facelift instead, has failed in her bid for compensation for a “sadly damaged face” that followed the surgery.
Helen Stanley – who naturally expected to gain an improved appearance as a result of the operation – self-filed a lawsuit against surgeon Richard Boyle for the disfigurement she claimed included scarring, a weeping eye and a lop-sided mouth as well as occipital pain and obscured vision.

She alleged such outcome was caused by the doctor misrepresenting his abilities and “attempting a procedure which could not be completed in the time for which the operating theatre had been booked”.
Her claim, formulated without any legal advice included $500,000 for punitive damages and another half-million for “general damages”. She vaguely claimed deceit by the doctor and that he “knowingly violated the Hippocratic Oath”.

The procedure occurred at Redcliffe in August 2008 and – like any personal injury claim – she was required to have completed Personal Injuries Proceedings Act (“PIPA”) pre-court procedures and filed suit, all within 3 years.

If her complaints proved true – and the court made no ruling one way or the other – she may well have had a viable claim, but for nowhere near the damages sums asked.

What the Supreme Court was required to decide last month, was whether the lawsuit should proceed at all. Boyle’s medical indemnity insurer argued that given the plaintiff’s procedural failures concerning the 3-year time limit – the court filing did not occur until more than 9 months after it had expired – and deficiencies in personal service and PIPA compliance, the claim should be struck out and brought to an end.

Making matters worse for herself, the plaintiff’s claim was “poorly pleaded, replete with irrelevant allegations and deficient in several respects”. No explanation for her missteps was offered, “save perhaps ignorance”.

While the court was prepared to grant latitude towards service irregularities, not so on the other issues.
The only discernible issue remotely relevant to qualifying for a limitation date extension order, was her assertion that surgeon had, until recently, concealed the theatre booking timesheets.

But Stanley did not attempt to identify any material fact that she claimed not to have known earlier, that could explain the delay in prosecuting her action and justify the time limit relaxation.

The expiration of the limitation period was “an insurmountable obstacle” and the court ruled it would be “an abuse of the process to allow [the proceedings] to stand”.

Her claim was summarily dismissed and Stanley ordered to pay Dr Boyle’s costs. Limitation extensions are an unforgiving summit for the most accomplished litigators to scale and never a feat to be stabbed at by even the most earnest of amateurs.

Stanley-Clarke v Boyle [2012] QSC 196 (12/0243) Brisbane McMeekin J published 31/07/2012

Categories: Personal Injury , Litigation & Law Practice

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