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Appeal Court bid to clear obstetrician's name

Dr Andrew Foote.

Dr Andrew Foote. Photo: Graham Tidy

Lawyers for obstetrician and gynaecologist Andrew Foote will continue their battle to clear the doctor's name, with the matter expected to come before a full bench of the ACT Court of Appeal.

The Supreme Court found last year that Dr Foote failed in his duty of care to a woman who was injured during a 2004 operation.

Dr Foote performed surgery including an abdominal hysterectomy and treatment for the breakdown of a mesh sling, which was providing support for a prolapsed uterus. The court has heard the surgery caused damage to the patient's ureter and caused urine leakages, forcing her to undergo further emergency surgery, the Supreme Court found.

Dr Foote was also found to have failed to exercise reasonable care and skill in advising the patient to proceed with the hysterectomy and another procedure.

His lawyers appealed the decision, but the two parties signed an agreement out of court last month, on the same day the appeal was to be heard.

On Wednesday, the Court of Appeal heard that both parties believed there was an arguable, appealable error with the original judgment, and they are seeking to have it struck out.

The striking out of the judgment was ''fundamental'' to the agreement reached between the two parties last month, the court heard.

But Justice Hilary Penfold said the matter needed to be heard before the full bench of the Court of Appeal before it could be resolved.

Justice Penfold said the court was not a ''rubber stamp'' for the out-of-court agreement reached between the parties.

The lawyers for both parties believe an appealable error occurred in the original judgment, although they signalled they may differ on the exact nature of that error. The parties would only have to demonstrate that an error had arguably occurred, without the need to actually confirm the error, the court heard.

Justice Penfold said she was yet to see anything that would suggest an error might have been made, but the legal teams will present submissions to that effect at a later date.

The matter will come before the court again next month.

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