A court has granted a patient permission to file new information against a surgeon who allegedly damaged her lymphatic system while inserting a tube for chemotherapy treatment.
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Usha Naidu went to Dr James Fergusson to have a “port-a-cath” inserted so she could receive cancer treatment. He did this via an open procedure in 2008.
She suffered lymphoedema – swelling in parts of the body – afterwards and said this was because her lymphatic system was damaged during the operation.
She filed a claim against the surgeon in 2011, alleging negligence and breach of duty of care.
Ms Naidu amended the claim the following year, after expert medical evidence said the type of open procedure she had was out-dated and had an excess risk of causing lymphoedema.
The expert said a less risky approach would have been an ultrasound-guided puncture or incision.
‘‘The approach adopted by the defendant, which involved a long incision across the front of the chest wall together with a dissection of tissues, produced lymphatic insufficiency in the right arm and that this was avoidable through the use of ... alternative techniques,’’ a judgment published this week said of the expert report.
The revised claim alleged Dr Fergusson had failed to advise the patient of alternative options.
Ms Naidu then applied to further modify the document, seeking to file more evidence in support of her claim that the surgeon had failed to advise her of other procedures.
But the move was opposed by Dr Fergusson’s legal team, who argued the failure-to-advise allegation was a new cause of action and should not be added to the existing case.
Master David Mossop granted Ms Naidu leave to file the amended claim.
Master Mossop found the fresh information was a new cause of action but it arose out of the same facts, which meant the court could grant leave.
“Whether or not there is a new cause of action, in my view it is appropriate to grant leave to make the amendment,” Master Mossop said.
“It is not unusual for expert opinion to change the complexion of a case and where that occurs at a reasonable point in the litigation process it is appropriate to accommodate such a change.
“This expert evidence provides a proper basis for the making of the claim of negligent advice. Such advice was not previously available to the plaintiff.”
Master Mossop ordered Ms Naidu pay the defendant’s costs.
