Patient sues doctor after post-surgical complications, claiming it could have been avoided had an alternative been properly explained

In the recent decision of Hamlyn v Stanton (No. 3) [2020] NSWDC 632, the plaintiff, Mr Hamlyn, was diagnosed with prostate cancer at the start of 2017. He was informed by his Urologist and the defendant in this matter, Dr Stanton, that active treatment was needed. Upon hearing Dr Stanton’s advice, the plaintiff elected to have surgery to remove the cancer.

Following this procedure the plaintiff suffered post-operative complications and claimed that if he had received a more thorough explanation of the alternative option of radiation therapy, and further a referral to a radiation oncologist, he would have chosen the alternative treatment opposed to surgery. The plaintiff proceeded to sue the defendant for damages for personal injury, in addition to non-compliance with the consumer guarantee of rendering services with due care and skill, under s 60 of the Australian Consumer Act

As Dr Stanton is regarded as a professional, the case largely turned on the application of s 5O of the Civil Liability Act 2002 (NSW), which deals with the standard of care for professionals. Upon hearing expert urology evidence, in addition to the application of s 5O of the CLA to the facts, the court held that Dr Stanton did not breach his duty to inform the patient of the potential risks of surgery. Further, it was found that the defendant was not negligent in failing to refer the patient to a radiation oncologist for assessment. 

A verdict was found in favour of the defendant and the plaintiff was ordered to pay the defendants costs. Additionally, obiter comments were made in regard to matters of causation and the assessment of damages.

The decision can be read in full here:

Scott Eveleigh

McAuley Hawach Lawyers

11 Fennell Street, Parramatta NSW 2124

Telephone: (02) 9633 1826

Facsimile: (02) 9687 8114 (02) 9687 8114



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