The Supreme Court allowed Julia Schuit’s appeal against the dismissal of her negligence claims against her GP, John Winters, and the Western Health Board. The Court held that the evidence was sufficient to require those defendants to answer the claims at trial. It did not decide whether either was liable or what loss their alleged negligence caused.
Schuit had undergone a radical hysterectomy in 1996, performed by surgeon Michael Mylotte after tests and symptoms raised concern about cervical cancer. A biopsy after the operation showed she did not have cancer. Her separate claim against Mylotte was dismissed after trial, and she did not appeal that decision. She also did not appeal the dismissal of her claim against radiographer David O’Keefe.
Her claims against Winters and the Health Board concerned abnormal smear test results from 1986, 1987, 1991 and 1993. The 1986 and 1987 laboratory reports recommended further examination, but the judgment records evidence that Schuit was not told of the results and that follow-up did not occur. Later reports were addressed to Winters; the 1993 test was unsatisfactory and requested a repeat, for which the judgment records no evidence. The Supreme Court said it was accepted for the appeal that there was evidence the GP and Health Board had failed to act appropriately.
The dispute on appeal was whether there was evidence that those failures caused loss or damage. Schuit’s medical witnesses had said that earlier investigation and conservative treatment would probably have resolved her condition and could have avoided a hysterectomy. The Court said the trial judge had placed too much weight on the argument that Mylotte should have chosen conservative treatment in 1996. That argument did not resolve what would follow if his later decision to operate was found reasonable, or whether earlier failures had contributed to the circumstances leading to surgery.
The Supreme Court rejected the view that a brief answer in cross-examination by one expert erased the wider body of evidence. It concluded that the case against Winters and the Health Board was not so weak that it could properly be dismissed before they gave evidence. It also held that the dismissal was reviewable on appeal because it turned on whether evidence could support liability, rather than on a trial judge’s assessment of witness credibility.
The appeal was allowed. The judgment did not determine liability, causation or damages, and it did not itself make a final order for a retrial. It said the errors in dismissing the claims meant there may have to be a retrial, where the issues between the GP and the Health Board could be determined.