By Stuart Eustice, Partner and Gregor Campbell, Lawyer

Facts

Preparatory to her trial, the Plaintiff served Monash Health with a required certificate of assessment pursuant to s 28LN of the Wrongs Act 1958 (“the Act”) and prescribed information in accordance with s 28LT of the Act.

In the prescribed information the Plaintiff’s injuries are described as bilateral inguinal hernias, scarring and disfigurement and psychiatric sequelae. The certificate of assessment served with the prescribed information on 1 March 2022 was from Dr James Rowe, an occupational physician and certified that the plaintiff’s physical injuries reached the prescribed threshold.

Monash Health referred the Plaintiff to a Medical Panel for her physical injury. This Medical Panel determined that the Plaintiff did not have a degree of whole person impairment resulting from her physical injury which satisfied the threshold level.

In response in January 2023 the Plaintiff served Monash Health with a certificate of assessment from Dr Justin Lewis, a psychiatrist, dated 13 December 2022. This second certificate stated that Dr Lewis was satisfied that the degree of impairment from the Plaintiff’s psychiatric conditions satisfied the threshold level.

As before Monash Health on 3 February 2023 referred the Plaintiff to a Medical Panel this time with respect to her phycological condition. On 28 June 2023 the Panel determined that the degree of psychiatric impairment resulting from the injury to the claimant did satisfy the threshold level. The Plaintiff was therefore successful in obtaining certification for her psychiatric condition despite failing to obtain the same certification for her physical injuries and was able to claim general damages.

Monash Health’s Submissions

Monash Health appealed the Medical Panel’s findings on the following grounds:

1. the Panel impermissibly assessed an injury beyond the scope of the claim?
2. the Panel had impermissibly taken into account secondary conditions?
3. there was no evidence before the Panel of any primary psychiatric condition.
4. the Panel’s decision unreasonable or illogical?

Held

The Court dismissed Monash Health appeal working through the Medical Panels decision and finding;

1. There was clearly a primary psychiatric or psychological condition alleged in the claim being an “aggravation of anxiety and depressive disorder with traumatisation features” and the Panel made its assessment in relation to that injury which was within the scope of the claim.
2. The Panel was aware of the difference between primary and secondary conditions exhibited by the Plaintiff and had evidence which was capable of being characterised as symptoms of a primary condition as the Plaintiff report she had:
   1. lost trust in the medical profession and was ‘really scared’;
   2. developed ‘nightmares about the surgery’; and
   3. became very angry about being ‘mocked, lied to and laughed at’.

They had then explicitly ignored secondary conditions. There was therefore evidence of a primary condition and the Panel had not taken into account any secondary conditions.

1. Despite Monash Health’s contention that the Plaintiff’s medical records showed pre-existing psychological conditions and problems which had not abated at the time of the operation, this contention rested upon the assumption (amongst others) that the plaintiff’s psychological conditions and problems could not have abated prior to the surgery and then returned afterward. Further, Court commented that the Medical Panel had the expertise to determine whether the Plaintiff’s pre-existing condition had abated – which they had clearly done.

Discussion

There are two key lessons from this decision for practitioners. The first is reminder that plaintiffs are able to obtain certification for their pleaded psychiatric conditions even if at first, they fail to obtain the same certification with respect to their physical conditions.

The second is the high bar the court imposes on parties attempting to review Medical Panel opinions. When determining whether a pre-existing condition is causative of a Plaintiff’s impairment the Court will be swayed by the expertise of the Medical Panel to determine whether this had abated by the time of the incident.