Health Alert (Australia) - 24 June 2013


In This Issue: Judgments; Legislation; and, Reports.

Excerpt from Judgments:

New South Wales -

14 June 2013 - King v Western Sydney Local Health Network [2013] NSWCA 162 -

The appellant developed foetal varicella syndrome (FVS) after her mother contracted varicella in the second trimester of her pregnancy. The syndrome caused severe physical and intellectual disability. The mother had not suffered from chickenpox before so should have been offered a dose of varicella-zoster immunoglobulin (VZIG), in accordance with the standard medical practice in 2002, to boost her defences to the virus.

It was accepted that the respondent owed a duty of care to the appellant to advise her mother of the availability of VZIG for treatment following her exposure to chickenpox and that the respondent breached that duty in failing to prescribe VZIG. The issue on appeal was the trial judge's determination that, on the balance of probabilities, causation had not been established.

The Court stated that to establish causation, it was necessary for the appellant to establish that:

- Her mother had contracted chickenpox within 96 hours of visiting the hospital

- Her mother would have chosen to have VZIG administered had it been offered to her; and

- That administration of the drug to her mother would have prevented the appellant from contracting FVS as a result of her mother's chickenpox.

The Court found that not giving the mother VZIG at most prevented the very small statistical risk of the appellant contracting FVS from minutely decreasing; "[i]t did not cause the appellant's injury." The Court held that the failure to administer VZIG did not materially contribute to the appellant's risk of suffering FVS, and the appeal was dismissed.

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