Civil Procedure – Case Law – Medical Negligence – Melissa Reis v Emil Gayed [2024] NSWDC 269

In the recent matter of Melissa Reis v Emil Gayed [2024] NSWDC 269, the plaintiff (Melissa Reis) commenced medical negligence proceedings against the defendant surgeon (Dr Emil Gayed).  

In 2014, the plaintiff, who was then 46 years old, underwent a routine Pap smear on the recommendation of her general practitioner (“GP”) which returned an abnormal result. The GP referred the plaintiff to a gynaecologist, the defendant doctor, whom she consulted. The defendant doctor, presumably after reviewing the report of the Pap smear, took a history from the plaintiff which included that she had experienced one bout of heavy menstrual bleeding. The defendant doctor organised an ultrasound scan of the plaintiff’s pelvis, from which he said he could identify a significantly thickened endometrium. On 17 July 2014, the defendant doctor recommended to the plaintiff that she undergo a hysteroscopy with dilation and curette (“D&C”), together with a cervical diathermy. This procedure was then performed by the defendant doctor on 18 July 2014 (“the First Procedure”). On 25 September 2014, the plaintiff saw the defendant doctor at his rooms, as had been arranged prior to the First Procedure. During that consultation, the defendant doctor told the plaintiff there was nothing to worry about as a result of the Pap smear and recommended to the plaintiff that she should undergo a further procedure, being an endometrial diathermy to remove what he said was a benign but abnormal endometrial pathology. On 10 October 2014, the plaintiff underwent an endometrial ablation with diathermy and ablation of fibroids with diathermy by the defendant doctor (“the Second Procedure”).  

Coincidently, the plaintiff’s mother had also been treated by the defendant doctor and had undergone either the same or very similar procedures, at his hand. In 2018, a Dr Nigel Roberts, the Director of Obstetrics and Gynaecology, made contact with various patients who had been treated by defendant doctor, including the plaintiff’s mother. Consequently, the plaintiff’s mother attended on Dr Roberts in 2018 and the plaintiff went along with her as a support person. During that discussion, which concerned the defendant doctor’s treatment of the plaintiff’s mother, the plaintiff told Dr Roberts that she had in 2014 been treated and undergone the two procedures by the defendant doctor. Dr Roberts then, with the plaintiff’s consent, undertook investigations into the plaintiff’s treatment by the defendant doctor.  

Dr Nigel Roberts reviewed the treatment provided to the plaintiff by the defendant doctor. Dr Roberts opined in his report dated in September 2018, which included conclusions and recommendations, as follows:  

1. Dr Gayed performed an ablation of the cervix on a woman on the basis of a possible low grade squamous intraepithelial lesion. The procedure was not a recommended procedure for a low grade lesion, and contraindicated if there was a suspicion of a higher grade lesion. In either case Dr Gayed’s behaviour represents a standard of care below that reasonably expected of a Fellow of the Royal Australian and New Zealand College of Obstetricians and Gynaecologists. 
2. Dr Gayed performed an endometrial ablation of a woman who had a single episode of postmenopausal bleeding. An endometrial ablation Is inappropriate in this circumstance. From the evidence before me, Dr Gayed’s behaviour represents a standard of care below that reasonably expected of a Fellow of the Royal Australian and New Zealand College of Obstetricians and Gynaecologists. 
3. On the balance of probability, I believe that Dr Gayed claimed to perform an ablation of fibroids on Melissa when she did not have fibroids. I believe it is likely that he made this claim for financial advantage. l believe this, in combination with other cases I have reviewed, represents a pattern of behaviour of Medicare fraud. Consideration should be given to reporting this and other cases giving rise to this belief to Medicare Australia. If there was a fibroid present, which Dr Gayed ablated, then he performed this non-standard treatment without Melissa’s consent. in either case I believe that Dr Gayed’s behaviour falls below the level reasonably expected of a Fellow of the Royal Australian and New Zealand College of Obstetricians and Gynaecologists. 
4. I believe that the Mayo Private Hospital needs to be advised to broaden their review of Dr Gayed’s patients. They need to investigate all women in whom Dr Gayed claimed to have ablated fibroids, and all women over the age of 50 who had endometrial ablations with Dr Gayed.    

In these proceedings, the defendant doctor made admissions of breach of duty (including that one of the procedures was unnecessary), but a number of matters remained in issue. 

On the question of an intentional act (section 3B(1)(a)), the trial judge noted that the plaintiff did not plead fraud. The defendant doctor was reckless as to whether the procedures could or would have any therapeutic benefit to the plaintiff. However, recklessness as to causing injury is insufficient for the purposes of s 3B(1)(a), as per Dickson v Northern Lakes Rugby League Sport & Recreation Club Inc [2020] NSWCA 294 at [181]-[183]. 

A limitation defence was addressed and in particular the s 50D(3) aspect of what the plaintiff ought to have known. The defence failed, with the trial judge finding at [140]: 

Significantly, I do not think it was unreasonable for someone in the circumstances of the Plaintiff to fail to appreciate that she might have a recognisable psychiatric condition and that it might be the consequence of Dr Gayed’s conduct any earlier than she did. Without that connection, notwithstanding her symptoms, her decision to not consult solicitors and/or doctors earlier was, to my mind, reasonable. To put that in the context of the legal test, I do not think it would have been reasonable to take those steps prior to when they were taken. 

The trial judge also found that the plaintiff suffered from a recognised psychiatric illness as a result of being told by Dr Nigel Roberts in 2018 (via his report) that the procedures that the plaintiff had undergone were not necessary. 

Ultimately, on 5 July 2024, the New South Wales District Court ordered judgement for the plaintiff in an amount to be agreed of assessed consistent with the judge’s reasons. The Court also ordered that the defendant pay the plaintiff’s costs.  

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