Case Name and Citation: Dean v Phung [2012] NSWCA 223
- Court: Supreme Court of New South Wales – Court of Appeal
- Judgment Date: 25 July 2012
- Judges: Beazley JA, Basten JA, Macfarlan JA
- Legal Areas: Medical negligence, trespass to person, consent in medical treatment, exemplary damages
What is the case about?
The case of Dean v Phung [2012] NSWCA 223 is an appeal judgment from the Supreme Court of New South Wales – Court of Appeal concerning medical negligence and trespass to the person. The case revolves around a dentist, Dr. Mark Phung, who provided excessive and unnecessary dental treatment to Todd Owen Dean, leading to a claim for damages.
Key facts of the case (Dean v Phung)
On 19 December 2001, Todd Dean was injured at work when a piece of timber struck his chin, causing minor injuries to his front teeth.
His employer arranged dental treatment with Dr. Phung, who performed root canal therapy and fitted crowns on all of Dean’s teeth over 53 consultations at a cost of $73,640.
Dean later sued Dr. Phung for negligence and trespass to the person, arguing that the treatment was unnecessary and that Dr. Phung had misrepresented the need for treatment. He acted fraudulently and with the intention of financial gain.
Dr. Phung admitted negligence but claimed Dean had consented to the procedures.
The trial court ruled in favour of Dean, awarding him $1,388,615.20, but denied exemplary damages based on the application of the Civil Liability Act 2002 (NSW).
Dean appealed.
Legal Issues
The primary legal questions in the appeal included:
• Whether the Civil Liability Act 2002 (NSW) applied to the claim?
• Whether the dentist could rely on the defense of consent?
• Whether exemplary damages should be awarded?
Court of Appeal’s Findings in Dean v Phung
The Civil Liability Act (CLA) limits “damages” and precludes exemplary damages unless an act was done with intent to cause injury. The Court found that Section 3B(1)(a) of the CLA applied, which excludes civil liability for intentional acts intended to cause harm. Dr. Phung knew the treatment was unnecessary, meaning the Act did not apply. Thus, higher compensation and exemplary damages became available.
Dean’s consent was deemed invalid because the treatment was misrepresented as necessary when it was not. This amounted to trespass to the person. A patient must be informed about the necessity and purpose of treatment; misleading the patient about medical necessity invalidates consent.
Further, the Court found Dr. Phung’s actions were not only negligent but also reckless. The dentist’s course of conduct was deliberate and for financial gain. Thus, exemplary damages were justified.
Final Orders
Appeal was allowed, setting aside the lower court’s decision.
The Court increased Dean’s damages from $1,388,615.20 to $1,743,000.
Dr. Phung was ordered to pay Dean’s legal costs.
Conclusion
Dean v Phung is a landmark case that holds that a doctor or a medical practitioner must provide accurate information before a patient gives consent to a medical procedure. If he lies about the necessity of a treatment for his personal financial gain, the patient’s consent is not valid, making the procedure an unlawful trespass. Such unnecessary and reckless treatments can lead to huge damages as punishment/severe penalties.
References:
https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWCA/2012/223.html
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