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Court finds in favour of deceased member

14 June 2019 | Morag Smith, Bjuris, LLB, Senior Solicitor, Avant Law

We successfully defended the reputation of a deceased neurosurgeon member after the court dismissed allegations his care led to a patient’s poor outcome from a post-operative infection.

The surgeon’s reputation needed to be defended, because we could not see how the patient’s outcomes could be linked to his care. However, defending the case was difficult due to the complexity of the medicine and the inability to speak to either our deceased member or the patient, who was now incapacitated.

Acting on behalf of the executor of the surgeon's estate, the court found in favour of the member (but against the hospital), 12 years after the incident and eight years after his death.

The deteriorating patient

The patient* was diagnosed with a benign brain tumour in 2005 (craniopharyngioma) and referred to the surgeon. The following year, he attempted to remove the tumour, performing the surgery transphenoidally to gain access, removing 90% of the mass.

In 2007, the patient developed headaches and visual disturbance, so arrangements were made for a second surgery to be performed. The operation had to be abandoned following bleeding caused by a nick to the carotid artery.

A week after the patient was discharged, he attended a follow-up appointment with the surgeon, who noted a complaint of ‘green snot’.

The patient underwent an angiogram the following month. Shortly after he returned home, he sneezed out what appeared to be a lump of fat, prompting him to call the surgeon. The presumed content of this discussion was pivotal in the case against the surgeon, recognising that neither party was able to give evidence about what was said.

About 2am the following morning, the patient had a headache and took Panadeine Forte. At 9.07am, the patient’s wife called the surgeon who advised her to take him to hospital.

He arrived at the hospital at 9.53am and was seen by a resident medical officer whose differential diagnosis was subarachnoid haemorrhage and meningitis. The surgeon was contacted and he indicated a subarachnoid haemorrhage was unlikely.

Seven and a half hours after the patient attended hospital, he was administered two grams of meropenem. A few hours later, he was found unconscious. He was intubated and ventilated but suffered severe and irreversible brain damage.

The complaint 

Through his guardian, in 2010 the patient commenced litigation against the hospital and the surgeon. He claimed the surgeon breached his duty of care by failing in the post-operative period to consider the risk of infection, to detect an alleged cerebrospinal fluid (CSF) leak, and to advise him during the pivotal discussion to immediately attend hospital after he sneezed out the fatty tissue.

The claim against the hospital alleged delayed treatment. It was claimed staff in the emergency department failed to heed the signs of meningitis and to start intravenous (IV) antibiotics and corticosteroids. As a result, it was alleged the meningitis progressed to the stage where it caused irreversible brain damage.

Expert evidence crucial

Evidence from expert witnesses, clinical records and the surgeon's telephone records proved central to defending the case. The telephone records established calls were made and when, showing the surgeon spent nearly three minutes on the phone with the patient discussing his case on the night before his admission.

Hospital and the surgeon’s records helped to establish the nature and history of the patient’s headaches, and also revealed the delay in providing treatment after his admission to the hospital.

All doctors owe a duty to act in accordance with the standard of care widely accepted as competent professional practice. Despite an early suspicion of meningitis when the patient presented to hospital, the judge found there was an unacceptable delay in commencing IV antibiotics and corticosteroids, concluding the delay "transcended mere negligence" and "is better characterised as gross".

Claim against surgeon dismissed

A finding of negligence was made against the hospital but the claim against the surgeon was dismissed.

The judge stated there was no evidence the patient was experiencing a CSF leak from the surgical access site following surgery. The judge also found the surgical defects would likely have healed by 21 days after surgery and the sneezing of the fatty tissue had no clinical significance.

In relation to the telephone call, with no firsthand evidence available, the judge ultimately concluded that proper advice "however exactly expressed" was given and the surgeon had not breached the duty he owed to the patient.

The hospital appealed the decision against the surgeon, claiming it should be inferred he failed to provide appropriate advice during the phone conversation. If the appeal court found there was a breach of duty, compensation would instead be divided between the hospital and member.

We successfully defended the appeal, with the appeal judges agreeing with the trial judge in concluding that “all the circumstances in combination” would not lead them to draw the inference.

Defending our member’s position

Claims Manager’s view – Chad Edwards-Smith, LLB, BNurs, Head of Practice Civil Claims, Avant

This case was difficult from the outset due to the inability to take instructions from our member. Nevertheless, we always believed that the surgeon had not breached his duty of care to the patient and the evidence did not suggest he failed to give adequate warnings during the discussion.

In cases involving complex medical procedures such as this one, a great deal depends on the legal team having a good understanding of the clinical issues.

Clinical records are also always important in these types of cases, particularly here as the patient and the surgeon were unable to give evidence. The hospital’s clinical records helped show the nature and history of the patient’s headaches in the lead up to his admission, and demonstrated the delay in providing treatment following his admission to hospital.

Being able to draw on the expertise of Avant Law and our medical advisers, was also an important factor in being able to defend this complex case.

Medical Adviser’s view – Ms Elizabeth Lewis, AM, FRCS(Eng), FRCS(Glas), FRACS, Former Senior Medical Adviser, Avant

I originally thought this could be a challenging case because the patient developed an infection after the patch was dislodged. We sought the opinion of an expert in trans-nasal surgery who had great experience in this procedure and stated in their comment to the court that the patch (or plug) being dislodged at the time had no effect on the patient and was not the reason for the infection.

This case demonstrates the importance of ensuring timely treatment in cases of suspected meningitis. If a life-threatening illness is suspected, you owe a duty to the patient to investigate and treat in a timely way.

The importance that medical records play in a hearing cannot be overstated. The main lesson is to make detailed notes of phone conversations with patients. Although in this case, we could deduce that our member had listened to the patient because of the time spent on the phone, a note written at the time would have been useful.

*All names and some details in this case have been changed.

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