Gould v South Western Sydney Local Health District [2017] NSWDC 67
Key Points
- An eight-year-old boy suffered a severe complex crushing injury to his thumb and was transferred to Liverpool Hospital for treatment.
- Due to other higher priority emergency patients arriving, treatment was delayed by 16 hours.
- Upon discharge, the thumb wound worsened. Gangrene was eventually identified and the thumb was amputated.
- The plaintiff alleged that the hospital failed to uphold its duty of care by delaying treatment, prescribing an inadequate antibiotic regime and failing to sufficiently treat the gangrene on the first two visits to the Hand Clinic.
- The defendant hospital sought to rely on a 'peer professional opinion defence' under s5O, and a 'novus actus interveniens' or 'new intervening act' defence under ss5D and 5E of the Civil Liability Act 2002 (NSW).
- It was held that the overriding consideration for a "peer professional opinion defence" is rationality. An expert opinion cannot be relied upon if it is held to be irrational.
- The question of rationality is whether the opinion conforms to accepted standards of competent professional practice and is a question of fact to be determined in relation to each opinion.
Background
An eight-year old boy (the plaintiff) sustained a severe complex crushing injury to his left thumb while playing outdoors on 22 August 2011. He was taken to the Emergency Department of Campbelltown Hospital, where he underwent x-ray examination. This revealed an extensive comminuted and acute fracture of the distal portion of his left thumb. The wound was temporarily dressed and the plaintiff was given pain relief and antibiotic treatment before being transferred to Liverpool Hospital for further treatment. On arrival, the plaintiff was scheduled to undergo surgery as the next patient in line for the emergency operating theatre. However, as events unfolded, the surgery was postponed as other higher priority emergency patients arrived.
Approximately 16 hours later, an exploration of the left thumb wound, a washout, insertion of wires for fracture management and surgical repair of the extensor tendon and nail bed was carried out. The plaintiff received antibiotic therapy and was discharged the next day with antibiotics.
Four days post-discharge, the plaintiff's grandmother took him to Campbelltown Hospital as the bandage on the thumb was "wet" and "funny smelling". The wound was cleaned and re-bandaged and he was sent home, while still under the care of the Liverpool Hospital Plastics and Hand Clinic. One week later, the plaintiff and his grandmother presented at the Liverpool Hospital Plastics and Hand Clinic earlier than was scheduled for a check-up due to growing concern about the condition of the thumb. On this occasion, the registrar noted that the plaintiff's left thumb had 'dry gangrene' (as distinct from 'wet gangrene', which later became an issue of contention).
On 15 September 2011, the plaintiff and his grandmother attended the Liverpool Hospital Plastics and Hand Clinic again as the wound had worsened. Ultimately, due to the presence of gangrene, it was determined that the tip of the thumb should be amputated. This was subsequently followed by a shortening of the amputation stump on 10 July 2012.
The plaintiff commenced proceedings against Liverpool Hospital in which he claimed that the unreasonable delay in treatment by the hospital on his first presentation and inadequate antibiotic therapy led to the needless surgical amputation of the phalanx of his left thumb and its subsequent shortening.
The Law
A finding of liability against the hospital was upheld and damages were assessed in the plaintiff's favour at $240,930. The main factors in Judge Levy SC's consideration were that of expert opinion (within the context of the 'peer opinion defence' in s5O(1) Civil Liability Act), the issue of causation and the 'novus actus interveniens' defence alleged by the defendant.
- Breach of Duty
Contemplation of the breach of duty of care centred on the factual issues of delay in surgery, an inadequate antibiotic regime and inadequate post-wound care at the Liverpool Hospital Plastics and Hand Clinic. It was found that the antibiotic regime prescribed was adequate and did not constitute a breach of duty. However, the delay of 16 hours in providing a surgical washout and lavage of the wound was found to be unacceptable and constituting a breach of the duty of care owed, which had an impact on the plaintiff's prognosis. Further, the hospital was also found to have failed to properly identify and treat the gangrene on the first two presentations to the Emergency Department.
- Expert Evidence and Rationality for Acceptance of Peer Opinions
The hospital attempted to rely upon s5O of the Civil Liability Act as a defence to the plaintiff's claims by submitting that the timeframe for the treatment provided was widely accepted in Australia by peer professional opinion as competent professional practice.
The parties presented conflicting expert evidence in relation to treatment of open fractures. Ultimately, the trial judge discounted expert evidence submitted by the defendant on the basis that it relied on a reading of therapeutic guidelines that was too narrow. The trial judge found that the hospital ought to have reallocated resources or referred the plaintiff to another health service when it became apparent that treatment could not be provided urgently. The court rejected the peer professional defence based on s 5O of the Civil Liability Act on the basis that the relevant peer professional opinion sought to be relied upon was considered by the court to be irrational.
The two experts called on by the hospital, Dr Gautus and Dr Raftos relied heavily on journal articles to justify the actions of the hospital in delaying treatment. In the context of this evaluation, the facts that the experts were asked to assume for the purpose of their opinions must be sufficiently similar to the facts
that have been proven in evidence to give the s5O defence any substance. This was not accepted by the Court and accordingly, the s5O defence was not made out.
It was noted in Judge Levy SC's reasons that the overriding consideration for a s5O defence is rationality. The opinion in question cannot be relied upon by the defendant if, in the opinion of the court, the opinion is determined to be irrational.
- Novus Actus Interveniens
Four days after the plaintiff's discharge from Liverpool Hospital, he fell from a swing and injured his left thumb. The defendant submitted that an intervening act had occurred so as to relevantly influence the assessment of the extent of damages in the case, and further, that no damages should be awarded as a result. This defence was founded on two elements, the first being that there was non-compliance with the treatment recommendations given following discharge from hospital, and second, that the swing incident represented a further injury to the left thumb. The Court rejected that the 'swing incident' would have caused injury in a way that would have materially led to the ultimate amputation. As such, it was held a novus actus interveniens defence could not be made out under ss5D and 5E of the Civil Liability Act.
Lessons Learnt
The decision is particularly interesting in its consideration of 'expert peer opinion' within s5O of the Civil Liability Act. The basis for application of s5O(2), is that peer professional opinion cannot be relied on for the purposes of the section if the Court considers that the opinion is irrational. This question of rationality is whether the opinions conform to accepted standards of competent professional practice and is a question of fact to be determined in relation to each opinion. This case highlights the difficulty in relying on such a defence, especially where both parties present conflicting expert evidence for the contemplation of the Court.
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