Failure to abandon surgery results in damages of $3.8M

In a recent Supreme Court of NSW decision, the plaintiff was successful in his claim against an orthopaedic surgeon an anaesthetist in relation to paraplegia suffered during surgery to correct a spinal deformity. The plaintiff was awarded a sum in excess of $3.8M plus legal costs.

Key Points
  • A shared decision making responsibility exists between anaesthetists and surgeons during the intra-operative period in relation to making decisions concerning abandonment of surgery.
  • Both practitioners are exposed to an adverse liability finding where the surgery is inappropriately continued and this results in injury to the patient.


The plaintiff suffered from Noonan Syndrome and as a result of this Syndrome he suffered from lordoscoliosis causing a restriction of his chest cavity which caused difficulty with his breathing. The plaintiff was admitted to undergo two surgeries to address these issues as without surgical intervention his prognosis was grave. The first surgery proceeded uneventfully however, prior to the second scheduled surgery the plaintiff’s condition deteriorated alarmingly causing the treating team to bring forward the surgery due to concerns about being able to adequately ventilate him. During this second surgery the plaintiff sustained a hypotensive insult to his spinal cord which rendered him a paraplegic.

The plaintiff alleged that the second surgery should have been aborted earlier than it was when his intra-operative condition was deteriorating and critical and that had this occurred he would have avoided the hypotensive insult to his spinal cord and resultant paraplegia. There were also allegations in relation to the spinal monitoring which was performed during the surgery. Further, whilst there was expert evidence in relation to the appropriateness of the timing of the second surgery and whether it needed to be performed urgently, the Court concluded that the decision could not be criticised due to concerns about the plaintiff’s poor lung function and the need to correct that. Ultimately by the last day of the hearing the plaintiff no longer pressed this as an allegation of negligence.

In relation to the injury the orthopaedic experts agreed in a joint conference that the plaintiff became a paraplegic at some time after 20.30 hours, when he became hypotensive for the first time and that the surgery should have been abandoned when the anaesthetists could no longer maintain satisfactory cardio respiratory parameters. The anaesthetic experts agreed in a joint conference that the spinal injury most likely occurred as a result of inadequate oxygenated blood to the spinal cord at around 21.30 hours, at the time of the plaintiff’s cardiac and respiratory collapse.

The Court found that it was reasonable to continue the surgery beyond 20.30 hours as there were no surgical of anaesthetic indications that it should have been abandoned. Further, the Court concluded that the absence of spinal monitoring after 20.30 hours (which occurred due to the need to administer muscle relaxant to assist with ventilating the plaintiff) was of no significance as the expert evidence was that ultimately it would not have detected significant spinal cord electrophysiological abnormalities prior to 21.25 hours. It did however, mean that the doctors needed to act conservatively and expeditiously in relation to the surgery and whether to continue with it.

Based upon the evidence the Court concluded that the plaintiff most likely suffered a catastrophic event leading to spinal damage and paraplegia between 21.20 and 21.30 hours. Whilst the Court was sympathetic to the predicament the doctors found themselves in it concluded that had the doctors acted with reasonable care and skill and having regard to the plaintiff’s condition, the surgery would have been abandoned by 21.15 hours, at the latest, which would have avoided the injury suffered by the plaintiff and that a failure to do so was negligent. The anaesthetist was found to be negligent in not advising that the surgery be abandoned no later than 21.00 hours, noting he was alive to the plaintiff’s metabolic deterioration and his inability to reverse it. The orthopaedic surgeon was also found to be negligent for not ceasing the surgery at that time. The Court concluded that the orthopaedic surgeon was not dependent on the anaesthetist concerning the plaintiff’s condition or the decision to continue with the surgery. That is because the Court found that the orthopaedic surgeon had been advised by the anaesthetist of the problems being encountered and it was he who has the ultimate say in whether to continue or not. The Court was satisfied that the breach of duty by the doctors in failing to cease the surgery by 21.00 hours caused the paraplegia.

The Court found that the injury could have been avoided by the exercise of reasonable care and skill. The Court did not accept that there was an inherent risk that the plaintiff may suffer cardiovascular collapse causing a spinal cord injury. The damage he suffered was not the materialisation of an inherent risk in the Court’s view and therefore the defence in relation to there being no liability for the materialisation of an inherent risk failed. The Court also rejected that the defendants acted in accordance with what would be widely accepted by peer professional opinion to be in accordance with competent professional practice and therefore this defence also failed.

This decision highlights the nature of shared decision making between surgeons and anaesthetists during the intra-operative period in relation to making decisions as to whether to continue with the surgery or not. The anaesthetist’s liability in this matter arose from a failure to advise the surgeon that the surgery should be abandoned in the presence of the plaintiff’s deterioration and the surgeon’s liability arose from not ceasing the surgery at a time when he was alerted to the issues being encountered by the anaesthetist. In this matter the Court concluded that it was the surgeon and not the anaesthetist who had the ultimate say in whether to abandon the surgery or not.

Post by Karen Kumar

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