Surgeon and health institution successfully defend claim for damages relating to allegedly negligent eye surgery despite the absence of clinical notes regarding the procedure.
In issue
The two key issues in Busa v South Eastern Sydney Local Health District Trading as Sydney Eye Hospital were:
- whether the ophthalmic registrar made an excessive number of attempts to tap vitreous fluid from the plaintiff’s eye, and
- whether there was a failure to adequately document the subject procedure performed on the plaintiff’s eye.
The background
The plaintiff, Mr Giovanni Busa, presented to the Sydney Eye Hospital on 1 April 2015 reporting pain in his left eye. He was suspected of suffering from endophthalmitis, a potentially blinding condition, and underwent a 'tap and inject' procedure. In this procedure, a small amount of fluid is taken from the eye through a needle under local anaesthetic, and the removed fluid is replaced with antibiotics.
A significant issue at trial was whether the ophthalmic registrar inserted seven needles into the plaintiff's left eye during the 'tap and inject' procedure or stopped after no more than three attempts. This question was complicated due to the fact that there were no clinical notes of the ‘tap and inject’ procedure.
The decision at trial
The Supreme Court of New South Wales found that Sydney Eye Hospital did not breach its duty of care owed to the plaintiff and ordered the plaintiff to pay the defendant's costs.
Number of attempts
His Honour Justice David Davies found the plaintiff’s evidence unreliable, noting that there were inconsistencies and contradictions in his account of the ‘tap and inject’ procedure on 1 April 2015, and concluded that the ophthalmic registrar did not attempt more than three taps.
Davies J preferred Sydney Eye Hospital’s expert evidence from a vitreoretinal specialist and ophthalmic surgeon and general ophthalmic surgeon and found that the ophthalmic registrar carried out the procedure to a standard that was widely accepted in Australia by peer professional opinion as competent professional practice1 and the procedure did not cause or contribute to the plaintiff’s loss of vision.
Clinical notes
There were two possible explanations for the lack of the clinical notes:
- the ophthalmic registrar failed to make any notes, or
- the part of the file containing the ophthalmic registrar’s notes had been lost.
Davies J found that there was insufficient evidence to decide on the balance of probabilities that the ophthalmic registrar failed to make clinical notes of the ‘tap and inject’ procedure and that a failure to take notes does not amount to a breach of duty of care.
The plaintiff failed on causation regarding his physical and psychological injuries and Davies J found the absence of the plaintiff’s clinical notes was not a necessary condition of the occurrence of harm regarding the plaintiff’s psychological condition.
Implications for you
This case reinforces that for a health practitioner to establish they have not breached their duty of care, their actions (or inactions) must align with a standard widely accepted by peer professional opinion as competent professional practice. This is often established through evidence of experts appropriately qualified and experienced in the relevant medical specialty.
A lack of clinical records did not amount to a breach of duty of care in this case, but health practitioners must consider both their professional responsibilities under the National Health Law and their obligations to patients to facilitate continuity of care and the preservation and communication of key information. Maintaining an accurate and contemporaneous record of the treatment and advice provided to patients remains a key aspect of competent medical practice.
Busa v South Eastern Sydney Local Health District Trading as Sydney Eye Hospital [2025] NSWSC 130
1 Section 5O of the Civil Liability Act 2002 (NSW)
2 Busa v South Eastern Sydney Local Health District Trading as Sydney Eye Hospital [2025] NSWSC 130, paragraph 211
