Insurance & Reinsurance
With the doors finally closed on 2020, Clyde & Co's health law liability team took a look at the most significant medical liability cases impacting Australian healthcare providers throughout 2020 and the likely future implications of their rulings.
Jennifer Masson suffered a severe asthma attack on 21 July 2002, leaving her in a vegetative state with severe and irreversible brain damage. She brought a claim in negligence against the Queensland Ambulance Service (QAS). At the time the QAS Clinical Practice Manual (CPM) stated that in the circumstances of a severe asthma attack, a paramedic should "consider" administering IV adrenaline. However, the CPM also cautioned that adrenaline could cause hypertension, stroke, heart attack or life-threatening arrhythmias in patients like Ms Masson, as she presented with elevated heart rate and blood pressure. The primary issue at trial was whether the decision to use salbutamol to treat Ms Masson breached the paramedic's standard of care.
The trial judge held that the paramedic acted with reasonable care. He "considered" the use of IV adrenaline but opted for salbutamol due to Ms Masson's high blood pressure and elevated heart rate. The Queensland Court of Appeal (QCA) overturned this finding. They determined that the paramedic had not "considered" the use of adrenaline and inappropriately departed from the guidance in the CPM. The QCA's decision sought to treat the CPM as determinative of the standard of care.
The High Court overturned the QCA decision. The Court rejected the QCA's finding that the CPM was determinative of the standard of care. The Court confirmed that the guidance in the CPM assumed that paramedics would exercise clinical judgment, and if it was in the best interest of the patient, a paramedic could depart from the CPM. The Court held that the decision to administer salbutamol over adrenaline was within the range of reasonable clinical judgements that an ordinary skilled intensive care paramedic might make.
The case confirms that standard of care expected of an intensive care paramedic is (rightly) lower than the standard expected of a medical practitioner experienced in emergency medicine. While the plaintiff could establish that a medical practitioner in an emergency department would have used adrenaline, it was inappropriate to hold an intensive care paramedic to that standard.
The case is also an excellent reminder to lawyers and claims professionals that while clinical manuals can be useful to help to understand the appropriate standard of care, they are not legal documents and do not proscribe decision making based on the patient's circumstances and the judgement of the clinician.
The defendant, Northern New South Wales Local Health District, applied for an order compelling the medical examination of the plaintiff, Luke Pederson, by way of taking saliva samples for genetic analysis.
The plaintiff was a 10-year-old boy who sued the hospital for injuries that he suffered during his birth on 14 December 2009. As a result of delays caused by the alleged negligence of the hospital, the plaintiff suffered Hypoxia Ischemia Encephalopathy (HIE), which resulted in serious disabilities. The most significant disability was the alleged development of Autistic Syndrome Disorder (ASD). The plaintiff was claiming substantial damages in respect of the ASD.
However, the issue of whether the defendant's alleged negligence caused the ASD was in dispute. The defendant admitted that it breached its duty of care in respect of failing to ensure an obstetrician was present at delivery and failing to manage complications during the delivery promptly. The defendant accepted that the plaintiff suffered ASD, but it denied the alleged connection of ASD to the delays in delivery.
Both parties had filed expert evidence on the issue of causation. The plaintiff's independent expert and his treating specialist expressed the opinion that the plaintiff's ASD was a direct result of the HIE. The defendant's expert, who was a geneticist, suggested that it was possible to do genetic testing to obtain a definitive diagnosis, however a negative test result did not exclude a genetic cause for ASD since the cause may be in one of the genes examined but not detected for technical reasons, or in a gene that was not examined, as that gene had not yet been discovered as a cause of genetic disorder.
The plaintiff's tutor objected to the genetic testing on several grounds including that it would cause distress and anxiety to the plaintiff, and it was uncertain as to whether the test would be able to demonstrate anything probative about the plaintiff's case. Justice Campbell noted that the aetiology of ASD was uncertain.
Justice Campbell noted that each case theory was based on epidemiology and referred to the judgment of Spiegelman CJ in Seltsam & McGuiness  49 NSWLR 262. In that case, the Chief Justice expounded the principles governing the proper use of epidemiological evidence as a means of discharging the civil onus of proof when the cause of the condition is uncertain in medical science.
Justice Campbell noted that there were some cases in which medical science could not identify the biological or pathological mechanisms by which a disease or condition developed. There were also cases where medical science could not determine the existence of a causal relationship between a disease or condition and a particular act or omission. However, that was not necessarily determinative of the presence of a causal relationship for the purposes of attributing legal responsibility. In such cases, epidemiological evidence could fill the gap.
Justice Campbell held that whilst medical science might require something approaching certainty before making a scientific deduction; the civil courts did not operate that way. The courts could draw an inference as to probability from many pieces of evidence, each piece of which in itself did not rise above the level of possibility. Epidemiological studies and the expert opinions supported by those studies were able to form "strands in a cable" of a circumstantial case. The judge, therefore, ordered the genetic testing on the plaintiff even if the outcome of the testing was uncertain.
This interlocutory decision considers the exercise of the Court's discretion to compel medical examinations for the application of epidemiology studies to establish factual causation and when a plaintiff refuses to attend.
In determining causation in malpractice claims the opinions of medical experts based only on possibility may form evidence that the courts will take into account, in conjunction with other evidence, when making causation findings on the balance of probabilities. Epidemiology studies can be considered admissible evidence relevant to establishing causation.
Saba Nouri and her twin brother were born on 3 November 2011. Saba was born with severe disabilities including tracheoesophageal fistula (TOF), and requires 24 hour care.
Saba’s parents, Ms Nouri and Mr Shaor (appellants), commenced proceedings in the Supreme Court of the Australian Capital Territory against the Australian Capital Territory (respondent), alleging negligence by the Canberra Hospital for its failure to advise them of the possibility that Saba had TOF, which had been considered by the Canberra Hospital in September 2011.
The appellants contended that had the Canberra Hospital provided them with this information, the pregnancy associated with the disabled twin would have been terminated.
The matter was heard before Justice Elkaim. The two issues before Justice Elkaim included whether the hospital’s failure to provide information on Saba's condition was a breach of its duty of care, and on causation, whether or not appellants would have or could have secured a termination at the late stage in the pregnancy when information about Saba's condition should have been provided.
Justice Elkaim found that the respondent had breached its duty of care to the appellants as there was enough evidence as at September 2011 relating to Saba's condition, that would have necessitated a discussion with the appellants about the meaning of TOF and Saba's condition upon birth.
Justice Elkaim also found the appellants did not establish on the balance of probabilities that, they could have or would have obtained a selective termination of the pregnancy when the information was supplied at a late stage of the pregnancy. In coming to this conclusion, Justice Elkaim considered a number of factors including the gestational age of the twins (30 weeks and 4 days) and the appellants' inability to terminate the pregnancy in Australia which necessitated the need to travel to the USA to undergo the selective termination. The result was a complex series of events that needed to occur to effect the termination.
The appellants appealed this decision to the Australian Capital Territory Court of Appeal.
The Court of Appeal found that Justice Elkaim did not err in his determination that, notwithstanding the negligence of the respondent in failing to communicate the possible diagnoses of TOF, the appellants had not proved on the balance of probabilities that, had proper advice been given, they would have terminated the pregnancy. The appellants subsequently filed an appeal with the High Court in October 2020. This application was refused.
The significance of this decision is that whilst breach of duty may be easily proven having regard to the evidence available, the next hurdle to overcome is establishing causation, which can be a rigorous obstacle. Here, the Court has reminded us that causation could not be established by demonstrating each individual issue identified by the trial judge was 'more likely than not' to have been overcome. Rather, what needed to be shown was that taken collectively, it was 'more likely than not' they would all have been overcome. Therefore, whilst it was theoretically possible that a person in Ms Nouri’s position, with an extraordinary degree of determination, effort and organisation, could have achieved the outcome of a selective termination, the absence of a firm diagnosis, the lack of encouragement that she would have received from her treating medical specialists, the need to locate and decide to be treated by a suitable practitioner in the USA, the risks of travel to the USA to both herself and the healthy twin, the logistical hurdles in getting to and from the USA, the significant costs, and the shortness of the time available, meant that the balance of probabilities was not in favour of her achieving that outcome.
The respondent, Cooper Ellis, was born on 24 August 2009 at Bentley Hospital.
Dr Hamza Amira was the obstetrician responsible for the management of the respondent's birth. The appellant, East Metropolitan Health Service, was responsible for the care provided at Bentley Hospital and was vicariously liable to the respondent for Dr Amira's management of his birth.
The respondent suffered a number of serious injuries due to the alleged negligence of Dr Amira during the delivery.
In the first instance, it was held that:
None of the above findings were in issue on appeal.
The primary matters in issue on appeal were the trial judge's findings concerning causation. The judge had found that the respondent had suffered the following developmental and cognitive impairments:
The appellant argued 22 grounds of appeal, relating to the causal link of Dr Amira's negligence to the respondent's impairments, categorised into two categories:
The only ground of appeal which was upheld by the Court was Ground 17 relating to the primary judge's application of s 5C(2) of the Civil Liability Act 2001 (WA) (CLA). The primary judge erred by concluding that the application of a 'material contribution' to the harm in question was to be considered an 'established principle' pursuant to that section and thereby satisfying the 'appropriate case' criteria necessary for the section to apply.
This conclusion did not impact the Court of Appeal's final determination to uphold the primary decision in light of the rejection of the remaining 21 grounds of appeal. Notably, the Court stated that:
The Court of Appeal interpreted the words of 'quite possible' to mean 'reasonable and legitimate.' The Court said the primary decision was structured in such a way that it easy identified 'primary factual findings' (which were in isolation from other evidence) and showed on what basis the primary judge made findings on the issue of causation.
The decision is a reminder that a Court does not have to decide issues of causation merely because expert evidence has been adduced. Causation can be inferred and, as long as the inference reaches the required standard of proof and is not contrary to the majority of the expert evidence, it will satisfy the test required to establish a causal link between the negligence and the loss and damage.
A judge is empowered to give 'weight to the united force of all the evidence together' and a singular 'weak link' in a chain will not necessarily cause that chain of causation to be broken. A court may only be precluded from making an inference of causation where the collective expert opinion regards that inference as unjustified.
The plaintiff, who resided in the UK, was rendered infertile as a result of several failures to diagnose pre-cancerous cervical changes, resulting in cervical cancer, the treatment for which rendered the Plaintiff unable to conceive or bear a pregnancy. The plaintiff wanted to have her own biological children through surrogacy. The issue for the Court was whether the costs of commercial surrogacy in the USA are recoverable under English law. Commercial surrogacy is banned in the UK.
The Supreme Court overturned a 2001 Court of Appeal ruling that commercial surrogacy costs were not recoverable for public policy reasons. The Supreme Court allowed the claim, holding that the legal definition of family, and the public perception of surrogacy, had changed considerably since 2001.
To date, Australian courts have not considered a claim for commercial surrogacy costs. However, given the rise in the use of US surrogacy arrangements by Australians, it is conceivable such a claim could be made in the future. If the proposed commercial surrogacy arrangement is lawful under Australian law, it will likely be recognised as a legitimate head of damages. The complexity arises in the lawfulness of the arrangement.
Presently in all Australian states (except the NT) commercial surrogacy is unlawful, and in some states (ACT, NSW and QLD) it is also unlawful to enter into an arrangement for same, even overseas. Therefore, if the State jurisdiction prohibits overseas commercial surrogacy, a difficult public policy question might arise, and damages might not be permitted on that basis. However, such a claim could be allowed in Victoria, WA, NT and TAS.
The plaintiff, Casey Vlaming, alleged he suffered an injury as a result of surgery negligently performed by a surgeon, Dr von Marburg.
In 2005, the plaintiff had suffered from a right ear ache and other ear complications and had been under the care of various doctors until he was diagnosed with cholesteatoma in or about July 2005. Cholesteatoma is a benign tumour that typically requires surgical removal. He had surgery performed by Dr von Marburg on 22 July 2005.
His cholesteatoma reoccurred following his first surgery. He had two further surgeries, all performed by Dr von Marburg. Following the final surgery known as a revision mastoidectomy, the plaintiff suffered from facial nerve paralysis and deafness in the right ear amongst other complications.
Two expert reports provided by the plaintiff considered that Dr von Marburg had failed to exercise reasonable care in the performance of the surgery and the surgery was not performed to a standard widely accepted in Australia by peer professional opinion, as competent professional practice.
Before the surgery the plaintiff had worked in the construction industry in a variety of different positions, and most recently as a site foreman. After the surgery, he returned to work gradually. He had some 8 weeks off work and returned part-time for another 10 weeks and then returned to full-time employment.
The plaintiff alleged his injuries had a profound effect on his personal life, his recreational pursuits and his long-term employment prospects.
Based on the expert evidence, Judicial Registrar Clayton found that the plaintiff's injuries arose out of damage to the semi-circular canal and the facial nerve, or avulsion of the stapes (a stirrup-shaped bone in the middle ear) and damage to the facial nerve during the relevant surgery. The plaintiff's underlying condition of cholesteatoma had not caused the injuries. She found that Dr von Marburg had breached the duty of care he owed to the plaintiff by not competently performing the surgery. Fundamentally, surgeons should avoid damaging essential structures to the ear, which is what occurred in this case.
Judicial Registrar Clayton undertook a review of recent awards for general damages made by the Court. She found that an award of $280,000 for general damages and pain and suffering was appropriate.
Regarding his claim for future economic loss, although the plaintiff returned to work in the construction industry for the same employer, the Court accepted that many of the roles commonly available in the construction industry, such as a crane operator, were now unavailable. The plaintiff argued that whilst he remained fully employed, it was highly likely he would lose income at substantial rates in the future due to his injuries. He claimed a "buffer" for that anticipated future loss of earnings based on the well-known principle enunciated in Victorian Stevedoring v Farlow  VR 594.
Judicial Registrar Clayton reviewed several recent decisions to guide her in arriving at an appropriate award of damages on a Farlow basis. Those awards ranged between $30,000 and $150,000. Judicial Registrar Clayton found that there was no evidence as to the likelihood that Vlaming would confront unemployment in the future. Nevertheless, she accepted that if his current employer terminated his employment, he would face additional hurdles because of his injuries.
Having weighed all these factors, the Court awarded Vlaming $100,000 for future economic loss.
The decision is relevant to the assessment of damages for future economic loss in circumstances where a plaintiff has returned to employment and cannot show a current loss of earning capacity.
The award for general damages is understandable, having regard to both the physical injuries the plaintiff suffered together with his psychiatric response. The award for future economic loss shows the courts are willing to be generous when applying the principles in Farlow, notwithstanding the absence of evidence that a plaintiff has suffered, or will suffer, an actual economic loss now or into the future.
The defendant, St Vincent's Hospital, provided a range of chemotherapy treatments and services to patients diagnosed with cancer. From 27 July 2009 onwards, the defendant adopted "eviQ Cancer Treatments Online" protocols (eviQ), which outlined recommended chemotherapy dosage levels for patients.
In February 2016 the media reported widespread use of "off-protocol" and "flat-dosing" chemotherapy by the defendant. Those reports stated that an inherent risk of "off-protocol" or "flat-dosing" chemotherapy was an enhanced risk of a patient's cancer relapsing and a reduced life expectancy.
In March 2016, the defendant sent a letter to each patient and the families of deceased patients confirming that the patient had received a different dosing protocol of a chemotherapy drug than the recommended eviQ guidelines.
Several patients and their family members (collectively 'the plaintiffs') commenced legal proceedings against the defendant. The plaintiffs claimed that the defendant had breached its duty of care to provide safe doses of chemotherapy and, as a result of this negligence, the Plaintiffs had developed pure mental harm.
The judgment concerned Motions filed in the 15 proceedings commenced against the defendant.
The defendant sought orders that each proceeding be dismissed on the basis that:
In respect to the Plaintiffs' causes of action, Judge Russell SC determined the reasonableness of each plaintiff's case based on their proximity to the patient. Judge Russell SC determined that the patients or their close family members had pleaded a reasonable cause of action in conformity with the statutory test, which requires that a plaintiff establish that they either:
Judge Russell SC found that the plaintiffs who were not "close family members" did not have reasonable causes of action. They were unaware of the patient being put in "peril" until much later on and therefore did not meet the statutory requirements.
This judgment provides valuable judicial guidance for analysis and defence of medical negligence claims concerning the application of the statutory test for pure mental harm. Specifically, the Court tested the limitation on "bystander" cases. The Court found that a "close family member" did not have to witness an event to bring a claim for pure mental harm. However, they must show that their mental and nervous shock had arisen in connection with a victim being put in peril.
On 1 May 2010, the plaintiff, Brian Old, fell whilst riding his motorcycle near his home in Jindabyne, New South Wales and suffered a severe right ankle injury. On 10 May 2010, the plaintiff underwent surgery performed by the defendant, Dr Miniter, an orthopaedic surgeon. A plate and screws were inserted into his ankle, and the ankle joint was held under tension using a syndesmosis tightrope stabilising system.
Following the operation, the plaintiff developed a post-operative osteomyelitis infection. He was treated with antibiotics until November 2010, at which point the infection was deemed to have been cured. The plaintiff subsequently developed osteomyelitis in his right ankle in mid-2017.
The plaintiff alleged that the defendant did not exercise reasonable care in his post-operative treatment, specifically by deciding to remove only select components of the indwelling fixation devices. He claimed the defendant caused the development of osteomyelitis in 2017 by not removing the devices earlier. He also claimed to have been unaware that remnant components remained in situ, only discovering this following a subsequent operation to his ankle.
The presence of these redundant components was of significance as, if not removed, they may become a potential site for infection.
Judge Levy SC found that the defendant's decision to allow redundant hardware to remain in situ, constituted a breach his duty of care as it failed to manage the risk of a subsequent infection developing in the future. Further, the defendant was obliged to communicate this risk to the plaintiff, and he failed to do so. Judge Levy SC also found that the defendant failed to maintain clear and accurate records of all treatment provided to the plaintiff during the two operations. This failure led to difficulties in the ability of the parties' experts to draw conclusions and provide sound opinion on the causation issues in the matter.
Despite making a finding of breach, Judge Levy SC found that the plaintiff failed to establish a causal relationship between the defendant's actions and the later development of his osteomyelitis. The experts concluded that the infectious organism likely entered the body during the first operation and not the subsequent operations. The organisms' introduction probably occurred due to multifactorial reasons, and not necessarily as a result of the surgeon's negligence. Judge Levy SC held that there was not a sufficient level of certainty in respect to the cause of infection to make a legal determination establishing causation, in doing so he made the following comments on causation:
On the evidence adduced, it is difficult to see how one could determine, by reasoned analysis that on the balance of probabilities, the plaintiff’s osteomyelitis in 2017 would have been an unlikely occurrence had Dr Miniter removed the redundant hardware in the plaintiff’s right ankle within a reasonable timeframe after 4 August 2010.
Whilst there is no doubt that the infectious diseases experts did their best to analyse the timing of the appearances of different infective organisms grown from swab cultures taken at different times, the factual uncertainties as to sampling methods, as identified in the evidence, means that the plaintiff’s causation arguments are necessarily based on a great deal of speculation that is impermissible in a legal analysis for affirmatively finding that causation has been established.
For the above reasons, on balancing the factors identified, I find that the plaintiff’s arguments in favour of the retained elements of hardware forming a possible nidus of infection does not compel a positive finding to that effect on the balance of probabilities to the rational exclusion of other competing possible causes for the infection. Factual causation therefore remains unproven.
Accordingly, the Court found in favour of the defendant.
This case highlights the difficulties that can occur in proving causation in medical negligence claims, especially with complex expert evidence. This decision acts as valuable judicial guidance with the interpretation of expert medical evidence.
The case is another reminder of the importance of record-keeping by health practitioners as the proper defence of claims can be significantly compromised if there are not clear contemporary records.
On 21 August 2015, the plaintiff, Brian Hawkins, was admitted to the defendant's hospital after presenting with abdominal pain. A small bowel obstruction was discovered. The same day he underwent a laparotomy and adhesiolysis to remove adhesions in the bowel.
During his admission he was placed on a nil by mouth (NBM) diet. The plaintiff's condition began to improve, and on 29 August he was subsequently placed on a free fluids diet, which allowed for consumption of creamed or smooth soups, jelly custard and yoghurt, as well as clear liquids.
The plaintiff claimed that his lunch on 29 August included a soup with solid pieces of chicken. He became severely ill experiencing abdominal pain, nausea and vomiting. Further, the plaintiff alleged that the vomiting resulted in a ruptured wound. The plaintiff asserted that his injury resulted from the hospital serving him food that was not compatible with his prescribed diet and the nursing staff not promptly informing the surgeon of the change in his condition. The plaintiff claimed that as a result of the negligence, it would be impossible to reverse the Hartmann's procedure and he would need to use a colostomy bag for the rest of his life.
The defendant denied it was negligent.
Judge Weinstein SC found that the defendant was not negligent and held that:
The plaintiff's case therefore failed.
The successful defence of the claim was entirely due to the hospital being able to lead specific evidence regarding guidelines and protocols in place at the time of the plaintiff's attendance and evidence that confirmed that these procedures were followed. The case highlights the importance of evidence gathering at an early stage of an investigation into a claim.