Busa v South Eastern Sydney Local Health District Trading as Sydney Eye Hospital [2025] NSWSC 130
Key takeaways
- Failure to take clinical notes is not, by itself, negligence. The Court confirmed that inadequate record-keeping may reflect poor professional practice, but does not automatically amount to a breach of a doctor’s legal duty of care.
- Good notes do matter. While not determinative of negligence, clear and contemporaneous records remain critical in substantiating what care was given and defending treatment decisions.
- Causation remains critical. Even if a breach were proven, the plaintiff’s underlying condition likely meant that the outcome (loss of vision) would still have occurred.
- Plead with precision. This decision serves as a reminder to exercise care when framing allegations of negligence in pleadings. Alleging negligence based solely on documentation gaps is risky and may not withstand scrutiny of the Court.
Background
The plaintiff, Mr Busa, brought proceedings after undergoing a procedure on his left eye at Sydney Eye Hospital in April 2015. He claimed that the treatment caused him to lose vision in that eye and suffer ongoing pain and psychiatric injury, namely a post-traumatic stress disorder (PTSD). By the time of final submissions, the plaintiff narrowed his allegations to only two particulars of negligence:
- That the treating doctor, Dr Andric, performed an excessive number of attempts (allegedly up to seven) to tap vitreous fluid from the plaintiff’s eye and in doing so caused injury, and
- That Dr Andric failed to adequately document the procedure.
Central to the dispute was whether Dr Andric attempted the tap more than three times – as the plaintiff alleged – or whether, as Dr Andric asserted, he never exceeded three attempts. No more than three attempts was consistent with his training and usual practice.
Unfortunately, no notes of the procedure performed by Dr Andric existed, and the file containing any such notes may have been lost. The plaintiff argued that the absence of records should weigh against Dr Andric’s credibility. The defendant submitted that the procedure was properly performed, even if not contemporaneously documented.
The plaintiff relied on Dr Pietro Morelli, an Italian ophthalmologist, for expert evidence. Dr Morelli had never practised as a doctor in Australia. He provided five reports at various times, but did not acknowledge the Expert Witness Code until his fourth report. None of his reports set out the assumptions, material facts and documents on which he had based his opinion.
Decision
The Court rejected both allegations of negligence and entered judgment in favour of the defendant.
On the procedure itself, the Court accepted Dr Andric’s account that no more than three attempts were made. This finding was based on his consistent evidence and plausible reasoning, and because Dr Andric’s evidence that he would never attempt more than three taps accorded with what was widely accepted in Australia by peer professional opinion as proper professional practice. The vitreous haemorrhage that followed was attributed to the plaintiff’s pre-existing severe retinopathy, not to any breach on the part of Dr Andric or the manner in which the procedure was performed.
On the alleged failure to document the procedure, the Court held that while the absence of notes was regrettable and potentially a breach of professional responsibility, it did not constitute a breach of the legal duty of care. The Court reaffirmed that a doctor’s legal duty is to treat with reasonable care – not necessarily to document that treatment.
On causation, the Court found that even if breach had been established, the outcome – loss of vision and pain – would likely have occurred regardless, due to the advanced deterioration of the plaintiff’s eye.
On psychiatric harm, the Court accepted the diagnosis of PTSD but held that, without a breach, the hospital could not be held legally responsible, even if the condition related to the plaintiff’s perception of the treatment.
On expert evidence, the Court emphasised the importance of experts acknowledging the Expert Code of Conduct, the need for objectivity, and for experts to be impartial witnesses, whose paramount duty is to assist the Court. Experts should also have the requisite expertise and knowledge of practice standards in Australia if being asked to comment on the relevant standard of care.
Why the decision is important
This decision serves as a valuable reminder of the distinction between professional standards and legal liability. While the absence of clinical documentation may reflect poorly on a clinician’s adherence to professional expectations, the Court made it clear that such a failure does not, in itself, amount to a breach of the legal duty of care. The duty remains focused on the standard of treatment actually provided to the patient.
The case reinforces the importance of good medical records in evidentiary terms. In circumstances where there is a clear factual dispute between practitioner and patient, contemporaneous notes often provide a reliable foundation for determining what occurred. This is particularly so when the Court is being asked to make findings of fact on events that occurred many years ago. Although the Court ultimately preferred the practitioner’s account in this matter, the absence of records created a vulnerability that could have tipped the balance the other way.
The decision also highlights the limited utility of expert evidence that does not comply with the Expert Witness Code or is not grounded in accepted Australian standards of practice.
For insurers and defence teams, this judgment provides reassurance that poor documentation, while a professional issue, does not automatically expose a provider to legal liability. Additionally, negligence must be specified in detail and supported by compelling, jurisdictionally appropriate expert opinion.
Further information
This article was written by Principal Chandrika Darroch and Associate Alexandra Seath. For further information or advice on any related matters please contact Chandrika.
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