A claim by a Gynaecologist and Obstetrician against a Private Hospital

This Supreme Court decision relates to a claim by a Gynaecologist and Obstetrician against a private hospital for contribution to damages arising out of the death of a patient following an elective hysterectomy.

The deceased had been vomiting faecal matter in the days before her death after a loop of suture material was left wrapped around her bowel during the surgery and not discovered until after her death.  She inhaled some of that faecal material with resulting pneumonia; her electrolytic balance became disordered; her oxygen level deteriorated; and finally, she suffered a fatal cardiac arrest.

The surgeon admitted he breached his duty of care to the deceased resulting in her death and resolved the claims brought by the family. However he sought contribution from the Hospital which could not be resolved and that aspect was heard before her Honour Schmidt J in May 2016.

The Hospital had initially denied that there had been any breach of duty for which it was liable. During the course of the hearing the Hospital admitted certain breaches of its duty, but whether they were the entirety of the Hospital’s breach, and whether the degree to which those breaches had contributed to the death, remained at issue.

Her Honour found that the Hospital staff failed to record observations of the deceased on the three days prior to her death and failed to take available steps to deal with her condition as it deteriorated. Those steps included notifying the surgeon or doctors on staff who could have pursued investigations and treatment which would have saved her life.  Whilst the more significant failures were those of the surgeon, the Court rejected the Hospital’s argument that its contribution should be as low as 5%.

The Court found that the Hospital’s contribution to the deceased’s death was 20%.  This assessment reflected the evidence as to the degree of departure of both the surgeon and Hospital, bearing in mind their respective roles and the circumstances in which they provided the services.

Post by Emma Ellis and Cameron Leaver 

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