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Supreme Court 22 June 2000

Bergman v Haertsch

[2000] NSWSC 528

Other
PROFESSIONAL NEGLIGENCE SPECIALIST MEDICAL PRACTITIONER GENDER REASSIGNMENT SURGERY MALE TO FEMALE TRANSSEXUAL WHETHER RES IPSA LOQUITUR APPLICABLE CONTRACTURAL TERM(S)

Citation: Bergman v Haertsch [2000] NSWSC 528
Court: Supreme Court of New South Wales
Date: 22 June 2000
Judge(s): Abadee J

Background

The plaintiff, a male-to-female transsexual, had experienced gender dysphoria from early childhood. After years of living as a woman and undertaking hormone therapy, she underwent gender reassignment surgery performed by the defendant, a specialist plastic and gender reassignment surgeon, in Sydney on 23 May 1994.

The plaintiff subsequently brought proceedings against the surgeon, alleging she had suffered harm as a result of the surgery. Her counsel noted in final submissions that the case was primarily concerned with how the surgery was performed, rather than any failure to warn.

The defendant denied all claims, and the matter was heard over seven hearing days in February and March 2000.

  • Whether the defendant breached his duty of care by failing to warn the plaintiff of material risks associated with the gender reassignment surgery
  • Whether the defendant was negligent in the performance of the surgery itself
  • Whether the doctrine of res ipsa loquitur (the principle that the facts of an incident may, of themselves, raise an inference of negligence) applied
  • Whether the defendant breached any contractual term arising from the surgeon-patient relationship
  • Whether a cause of action in assault (trespass to the person) was available to the plaintiff

Decision

Abadee J entered verdict and judgment for the defendant, dismissing all three causes of action: negligence, breach of contract, and assault. The court found that the plaintiff had not established any of the grounds advanced against the surgeon.

On the primary issue of surgical performance, the court was not satisfied that the defendant had fallen below the standard required of a competent specialist in gender reassignment surgery. The plaintiff's counsel had ultimately conceded that the performance of surgery was the heart of the case, and the court found it was not proved that the surgery was performed negligently.

On the failure-to-warn limb of the negligence claim, the court again found no breach of duty established on the evidence. The court also rejected the application of res ipsa loquitur, which would have allowed an inference of negligence to be drawn from the outcome of the procedure alone, finding the doctrine did not apply in the circumstances.

The claims in contract and assault were similarly dismissed. The court found no tenable basis for any award of aggravated or exemplary damages, observing that such claims were made on the eve of the hearing and were without merit even on the assumption that liability had been established. The court noted, by way of contingent assessment, that had the plaintiff succeeded, damages would have been assessed at $52,362.98.

Orders Made

  • Verdict and judgment for the defendant
  • The plaintiff to pay the defendant's costs
  • Liberty granted to the parties to bring in interest calculations within 14 days, if considered appropriate
  • Exhibits may be returned

Key Takeaways

  • Abadee J found that a plaintiff alleging negligent performance of specialist surgery must establish, on the evidence, that the practitioner fell below the standard of a competent specialist; an adverse outcome alone is insufficient to ground liability.
  • The doctrine of res ipsa loquitur did not automatically apply to an unsatisfactory surgical result in gender reassignment surgery; the plaintiff must still demonstrate the circumstances justify an inference of negligence.
  • A duty to warn of material risks and a duty to perform surgery competently are distinct bases of liability in medical negligence; the plaintiff advanced both, but neither was made out on the facts.
  • Claims in contract and assault arising from a consensual surgical procedure were rejected, consistent with the general principle that a patient's informed consent to surgery displaces a cause of action in trespass to the person.
  • The Supreme Court declined to award aggravated or exemplary damages, finding no warrant for such damages in a professional negligence context absent exceptional circumstances, and citing authority suggesting exemplary damages are generally unavailable for breach of contract.

Legislation and Cases Referenced

Legislation
- Births, Deaths and Marriages Act

Key Cases
- Rogers v Whitaker (1992) 175 CLR 479
- Chappel v Hart (1998) 195 CLR 232
- Naxakis v Western General Hospital (1999) 73 ALJR 782
- Wyong Shire Council v Shirt (1980) 146 CLR 40
- March v E & M H Stramare Pty Ltd (1991) 171 CLR 506
- Maynard v West Midlands Regional Health Authority [1984] 1 WLR 634
- Whitehouse v Jordan [1981] 1 WLR 246
- Schellenberg v Tunnel Holdings Pty Ltd (2000) 170 ALR 594
- Elliot v Bickerstaff (1999) NSWCA 453
- Malec v J C Hutton Pty Limited (1990) 169 CLR 638
- Lamb v Cotogno (1987) 164 CLR 1
- Gray v Motor Accident Commission (1998) 196 CLR 1
- Bennett v Minister for Community Welfare (1992) 176 CLR 408
- Astley v Austrust Ltd (1999) 73 ALJR 403
- Department of Health & Community Services (NT) v JWB & SMB (1992) 175 CLR 218
- Backwell v AAA (1997) 1 VR 182
- B v Marinovich (1999) NTSC 127