In the recent matter of Busa v South Eastern Sydney Local Health District Trading as Sydney Eye Hospital [2025] NSWSC 130, the plaintiff (Mr Giovanni Busa) commenced a medical negligence compensation claim against the defendant, South Eastern Sydney Local Health District trading as Sydney Eye Hospital, as a result of a procedure carried out on his left eye by Dr Marko Andric on 1 April 2015. The plaintiff claims to have lost vision in his left eye and suffered ongoing pain and psychiatric damage from the carrying out of the procedure and its consequences.

There was significant dispute regarding the correct version of events. For the purposes of this review, we note that the trial judge accepted the evidence of Dr Marko Andric, being that he did not attempt more than three injections to withdraw fluid from the plaintiff’s eye.

At [205], the court provided that the vitreous haemorrhage that occurred four days later occurred because of the bad state of the plaintiff’s eye from the retinopathy, and that Dr Andric carried out the procedure to a standard that was widely accepted in Australia by peer professional opinion as competent professional practice. There was no breach of the defendant’s duty of care in the carrying out of the procedure.

The court found that when the plaintiff presented to the SEH on 1 April 2015 he was suffering from endophthalmitis. However the treatment he was given in the form of the tap and inject was the correct treatment regardless of whether he actually was suffering from endophthalmitis (at [237]).

As to causation of damage, the court provided at [259] as follows:

…from all of this evidence that by reason of the extent of the problems with the plaintiff’s eyes, and particularly the left eye, and the fact that he acquired endophthalmitis prior to 1 April 2015, the prognosis for his left eye was very poor. The likelihood is that those matters eventually led to the position where he lost the sight in the left eye even though there was no breach of duty …. The damage the plaintiff suffered in terms of vision in his left eye would have occurred in any event. Similarly, the pain is related to increased intraocular pressure which was not related to what occurred …. In that way, even if breach was established, the plaintiff would have failed on causation in relation to his physical injuries.

At the mental harm, the court provided at [275] as follows:

I must accept the evidence of the psychiatrists, because there is no evidence to the contrary, that the plaintiff suffers from PTSD and that it is related to his treatment, or at least his beliefs about that treatment, …. However, in the light of my earlier findings of no breach of duty, the psychiatric conditions from which the plaintiff suffers, whilst they may have been related to his treatment on 1 April 2015, cannot mean that the defendant is legally liable for those conditions.

Of note, when considering the ‘usual practice’ submission, the court provided at [151] as follows:

A statement that someone never did a particular thing is a stronger statement of usual practice than a statement that the person always did something in a particular way. It has greater force when there is a plausible reason for never doing the thing. Dr Andric gave two plausible reasons for never having tapped more than three times; he had been taught not to, and there was little or no point in doing more than three because nothing is achieved and the patient is likely to be distressed.

In relation to note taking, the court provided at [211] as follows:

It is difficult to see how a doctor could owe a duty to a patient to make notes of what the doctor said or did. It may be a breach of the doctor’s professional responsibility although no evidence was led in that regard, and it may at some future time result in liability because the doctor did not treat or advise the patient appropriately as a result of not having a record of previous advice or treatment: see, for example, Elayoubi v Zipser. Similarly, a failure to make notes of advice or treatment may mean that, where there is a conflict of evidence, the patient’s account will be preferred over that of the doctor. Whilst that was a consideration in the present case, for the reasons I have given, I preferred Dr Andric’s evidence to that of the plaintiff and Ms Antonelli. Neither of the two situations posited above suggest that a failure to take notes in itself is a breach of the duty of care towards the patient.

Ultimately, on 16 April 2025, the New South Wales Supreme Court ordered as follows:

(1) Judgment for the defendant.

(2) The plaintiff is to pay the defendant’s costs.

Our team are specialist personal injury lawyers who can assist you with your claim on a ‘No Win No Fee’ basis. If you would like advice in relation to a personal injury claim, including a medical negligence claim, please reach out to Littles Lawyers today.

Further blogs in relation to medical negligence and personal injury claims can be found on our website.

If you have any queries regarding the article, please contact via Free Claim Checker or email us.