- Unreported Judgment
SUPREME COURT OF QUEENSLAND
Gail Shaw v Broadbent & Anor  QSC 425
SHAW, Gail Lynette
BS 9311 of 2008
Supreme Court at Brisbane
18 November 2010
6 - 9 April 2010
That the time limit for the commencement of proceedings claiming damages for personal injuries by the plaintiff against the first and second defendants be extended to 19 September 2008, pursuant to s 31(2) of the Limitation of Actions Act 1974.
LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – EXTENSION OF PERIOD – EXTENSION OF TIME IN PERSONAL INJURIES MATTERS – KNOWLEDGE OF MATERIAL FACTS OF A DECISIVE CHARACTER – GENERALLY – where applicant claims that she suffered injuries following surgery performed on her by the first respondent at the second respondent hospital – where applicant commenced proceedings beyond the limitation period – where applicant applies to extend the limitation period for the commencement of proceedings – where application is not opposed by the first respondent – where application is opposed by the second respondent on the basis of prejudice – whether the limitation period should be extended
Limitations of Actions Act 1974 (Qld), s 11, s 30, s 31
Brisbane South Regional Health Authority v Taylor  HCA 25; 186 CLR 541, applied
Broken Hill Pty Co Ltd v Waugh (1988) 14 NSWLR 360, cited
Carlowe v Frigmobile P/L  QCA 527, cited
Carter v Corporation of the Sisters of Mercy of the Diocese of Rockhampton & Ors  QCA 335, cited
HWC v The Corporation of the Synod of the Diocese of Brisbane  QCA 168, cited
Queensland v Stephenson  HCA 20; 226 CLR 197, cited
Raschke v Suncorp Metway Insurance Limited  QCA 161;  2 Qd R 549, cited
G R Mullins for the applicant
G W Diehm SC, with A Luchich, for the first respondent
J H Dalton SC, with J E Fitzgerald, for the second respondent
Maurice Blackburn Lawyers for the applicant
Flower & Hart Lawyers for the first respondent
Minter Ellison for the second respondent
- This is an application made pursuant to s 31(2) of the Limitations of Actions Act 1974 (Qld) (“the Act”) to extend the time within which to institute proceedings for personal injuries to 19 September 2008.
- On 19 September 2008 Gail Shaw filed a claim for damages alleging that injuries that arose following her undergoing surgery were caused or contributed to by the negligence and breach of contract of the first defendant, Dr Russell Broadbent, and the second defendant, the Allamanda Private Hospital (“the hospital”).
- However, s 11(1) of the Act precludes the bringing of an action for damages for personal injury due to negligence after the expiration of three years from the date on which the cause of action arose. The cause of action arose when she underwent surgery on 28 November 2002 and so the period under s 11(1) of the Act expired on 28 November 2005. Leave was given to commence proceedings on condition that the applicant bring an application pursuant to s 31 of the Act. Some relaxation of the statutory prohibition against commencing an action after the statutory limitation period is found in s 31 of the Act.
- Pursuant to s 31(2) of the Act, the plaintiff applied on 17 March 2009 to extend the time limit for the commencement of proceedings against the first and second respondents to 19 September 2008 (“the extension application”). The proceeding has been stayed by a court order until the extension application is determined. The applicant is one of nine applicants whose extension applications are opposed by the first respondent or the second respondent and sometimes both. Each application will be considered separately because each depends on its own facts but there is considerable overlap between them and there is therefore unavoidably some repetition in the separate judgments particularly in the exegesis of the relevant statutory and case law.
- The Act restricts the rights and liabilities of potential litigants and imposes strict obligations on those who seek remedies in court once the limitation period is past but is, regrettably, less than clear in its expression. In their joint judgment on the construction of this Act, Gummow, Hayne and Crennan JJ said in Queensland v Stephenson  HCA 20 at :
“Of the British ancestor of Pt 3 [of the Act], Lord Reid observed that it had a strong claim to the distinction of being the worst drafted Act on the statute book.”
- Kirby J observed, somewhat trenchantly, at -:
“In Ditchburn v Seltsam Ltd, I suggested that an encounter with statutory provisions similar to those under consideration in this appeal was liable to confuse judges and lawyers causing them to emerge ‘on the other side dazed, bruised and not entirely certain of their whereabouts’. The passage of 17 years, and many more cases struggling with the meaning of the statutory language, has not removed the sense of disorientation. In a competition involving many worthy candidates, Lord Reid's prize remains in place. This is so although, as Rehnquist J noted in Chardon v Fumoro Solo, ‘[f]ew laws stand in greater need of firmly defined, easily applied rules than does the subject of periods of limitation’. This desirable goal has not been attained in Australia. This appeal affords the latest illustration of that fact.
In 1986, a law reform commission report was delivered proposing changes to the then template of Australian laws. It suggested a simplified approach to applications for extension of time for commencement of actions. However, amendments were not enacted in Queensland applicable to these proceedings, despite judicial endorsement elsewhere of the need for reform. The result is that, in the present cases, the Queensland courts were obliged to struggle with the complex and obscure statutory language borrowed originally from a deficient English model.”(footnotes omitted).
- A similar comment had been made by the Queensland Court of Appeal in Carlowe v Frigmobile P/L  QCA 527 at :
“That the extension provisions are complex and extremely technical and have been a fertile source of litigation has been adversely commented upon by the Queensland Law Reform Commission in their review of the Limitation of Actions Act 1974.”
- In Carter v Corporation of the Sisters of Mercy of the Diocese of Rockhampton & Ors  QCA 335 at , I added:
“The need for law reform is manifest and it has already been the subject of a Queensland Law Reform Commission Report.”
- Nevertheless, the statute has not been amended and continues to be a fertile source of uncertainty and therefore litigation.
- Section 31 relevantly provides:
(1)This section applies to actions for damages for negligence … or breach of duty … where the damages claimed by the plaintiff for the negligence … or breach of duty consist of or include damages in respect of personal injury to any person ...
(2)Where on application to a court by a person claiming to have a right of action to which this section applies, it appears to the court –
(a)that a material fact of a decisive character relating to the right of action was not within the means of knowledge of the applicant until a date after the commencement of the year last preceding the expiration of the period of limitation for the action; and
(b)that there is evidence to establish the right of action apart from a defence founded on the expiration of a period of limitation;
the court may order that the period of limitation for the action be extended so that it expires at the end of 1 year after that date and thereupon, for the purposes of the action brought by the applicant in that court, the period of limitation is extended accordingly.
(3)This section applies to an action whether or not the period of limitation for the action has expired –
(b)before an application is made under this section in respect of the right of action.”
- The interpretation of s 31 is governed by s 30 of the Act, which provides:
(1)For the purposes of this section and sections 31 … –
(a)the material facts relating to a right of action include the following –
(i)the fact of the occurrence of negligence … or breach of duty on which the right of action is founded;
(ii)the identity of the person against whom the right of action lies;
(iii)the fact that the negligence … or breach of duty causes personal injury;
(iv)the nature and extent of the personal injury so caused;
(v)the extent to which the personal injury is caused by the negligence … or breach of duty;
(b)material facts relating to a right of action are of a decisive character if but only if a reasonable person knowing those facts and having taken the appropriate advice on those facts, would regard those facts as showing –
(i)that an action on the right of action would (apart from the effect of the expiration of a period of limitation) have a reasonable prospect of success and of resulting in an award of damages sufficient to justify the bringing of an action on the right of action; and
(ii)that the person whose means of knowledge is in question ought in the person’s own interests and taking the person’s circumstances into account to bring an action on the right of action;
(c)a fact is not within the means of knowledge of a person at a particular time if, but only if –
(i)the person does not know the fact at the time; and
(ii)as far as the fact is able to be found out by the person – the person has taken all reasonable steps to find out the fact before that time.
(2)In this section –
appropriate advice, in relation to facts, means the advice of competent persons qualified in their respective fields to advise on the medical, legal and other aspects of the facts.”
- The first defendant does not oppose the application. The second defendant has conceded for the purpose of this application that there is evidence to establish that the plaintiff has a right of action apart from the effect of the defence founded on the expiration of the limitation period and that there was a material fact of a decisive character which was not within the plaintiff’s knowledge or means of knowledge until after the relevant date for the purposes of s 31 of the Act, 19 September 2007, ie one year before the action was commenced.
- The application is opposed by the second respondent on the ground of prejudice only. Prejudice is relevant to the discretion that the court must exercise once an applicant has satisfied subsections 31(2)(a) and (b). That discretion is found in the word “may” in the conferral of power to the court in the phrase “the court may order that the period of limitation for the action be extended so that it expires at the end of 1 year after that date”.
- The only question to be examined is whether the court is satisfied that its power to extend time should be exercised in this case notwithstanding the allegation by the second respondent that it has suffered prejudice. If that question is answered in the affirmative, the applicant will succeed against the second respondent in this extension application. If the question is answered in the negative, then the extension application against the second respondent will be dismissed.
- To determine that question, it is useful to set out the treatment that the applicant received from the first respondent in the second respondent hospital as well as prior to and post admission.
- The applicant, who was born on 3 June 1952, underwent bilio-pancreatic diversion (BPD) surgery conducted by the first respondent, Dr Broadbent, at the second respondent hospital on 28 November 2002. At the time of the surgery the applicant was 50 years old. She had been employed by Queensland Transport as a crossing supervisor (“lollipop lady”) since 1992.
- BPD surgery is described as a type of bariatric weight loss surgery involving the removal of approximately three-quarters of a person’s stomach and the diversion of parts of the small intestines. As a result of the surgery, a person absorbs less fat and other nutrients and is unable to eat large quantities of food and consequently loses weight.
- The applicant’s previous medical history included Deep Vein Thrombosis with pulmonary embolism dating back to 1992 and haemachromatosis diagnosed in 2000.
- The applicant had problems with being overweight for most of her life. She made enquiries with her general practitioner about weight loss reduction surgery after trying a number of different diets which proved unsuccessful. Her general practitioner, Dr Reynolds, said that the only person she knew who performed weight loss reduction surgery was the first respondent and the applicant obtained a referral to him.
- The applicant’s first consultation with Dr Broadbent was on 23 April 2002. At that consultation she made enquiries about another form of weight loss surgery which she had seen on television, gastric banding, but was advised by the first respondent that he no longer performed it and instead offered the “Rolls Royce” of weight reduction surgery, BPD. The first respondent told her that her body processed food differently to other people and diagnosed her with a fat storage disease. In preparation for the surgery the applicant was advised to commence a low-fat vegetarian diet and exercise regime, which she did. She was also was referred to an obesity counsellor, Lee Quist, a former patient of Dr Broadbent who had undergone BPD surgery.
- Ms Quist emphasised to the applicant the need for compliance with the first respondent’s instructions, especially with respect to diet and exercise. In the lead-up to the surgery the applicant also attended meetings of a BPD patient support group set up by Dr Broadbent which met at the hospital. At these meetings attendees sang the praises of Dr Broadbent and discussed the benefits of BPD surgery.
- On 13 November 2002 the applicant signed a consent form, acknowledging that the operation depended on “patient compliance”. By signing the consent form, the applicant agreed that post-operatively she would eat a restricted diet consisting of 3 x 50ml fat-free meals per day until ideal weight was reached, after which 3 x 100ml reduced-fat meals were allowed. She also agreed to carry out the exercise programme exactly as requested by Dr Broadbent and recognised that the likelihood of success of the surgery was good provided that she complied and continued to comply with all of Dr Broadbent’s instructions.
- The applicant was admitted to the hospital on 27 November 2002 and underwent a cholecystectomy, an appendicectomy and BPD surgery on 28 November 2002. Post-operatively the applicant was given intravenous fluids, water, ice and small amounts of pureed fruit. She suffered from ongoing vomiting and headaches. The applicant was discharged from hospital on 4 December 2002 and advised by the first respondent to drink water, eat small amounts of pureed fruit and vegetables and to exercise.
- Once she was at home the applicant started vomiting again and found it difficult to get out of bed. She consulted the first respondent who advised her to continue with exercise. The applicant’s husband also contacted the first respondent on a number of occasions expressing concern and was told that his wife should keep her fluids up.
- The applicant contacted the first respondent again on 4 January 2003 as she was ill and had continual vomiting. She was advised by the first respondent to go to the hospital where she was admitted. She stayed in hospital for three days and during this time she was told by the first respondent that her problem was mostly due to a failure to adhere to his post-operative instructions particularly in relation to measuring food and fluids consumed. A letter from the first respondent to the applicant’s general practitioner, Dr Reynolds, dated 6 January 2003 attributed the applicant’s problems to “a failure to adhere to post operative instructions, strictly measure the food and fluids and allow time for the stomach to handle the new way of eating and drinking.” The applicant was discharged on 7 January 2003 although at this time she still could not eat anything orally and continued to vomit.
- The applicant was admitted to Gosford Hospital on 26 January 2003 as she felt weak, disoriented and hallucinatory while staying with her sister in Woy Woy, New South Wales. She stayed at Gosford Hospital for approximately three weeks and was discharged on 13 February 2003 as she had made arrangements with the first respondent to be transferred to the second respondent hospital. She was admitted to the second respondent hospital on 14 February 2003 and treated for dehydration.
- Whilst at the hospital a number of tests were performed on the applicant revealing symptoms of a stroke. The applicant was diagnosed with ataxia and found to be suffering from nystagmus and double vision. She was also diagnosed with vitamin deficiencies. The first respondent organised for her to be placed in the rehabilitation unit of the hospital on or about 18 February 2003. In a letter to the applicant’s general practitioner, dated 17 February 2003, the first respondent described the applicant’s health problems as “really a case of the patient being unable to or refusing to follow the instructions which she has been given”. The applicant was eventually discharged from the hospital in March 2003.
- The applicant was admitted to Belmont Private Hospital on 20 August 2003 for depression. Whilst there she was also diagnosed with malnutrition and given nutritional and dietary advice and treatment. She was discharged in late September 2003.
- During 2004 to 2006 the applicant was able to eat but had constant diarrhoea. She saw her general practitioner, Dr Reynolds, regularly and was referred to a number of practitioners to investigate her poor balance and speaking difficulties. In May 2004 she was referred to a neurologist, Dr John O’Sullivan, who suspected that her ongoing difficulties were attributed to poor nutrition associated with gastric banding but was unable to provide a clear diagnosis.
- She was diagnosed by a gastroenterologist, Dr John Gibbons, with malabsorption secondary to BPD in May 2007. In September 2007 she came under the care of a neurosurgeon, Dr Leigh Atkinson, who ordered that she undergo an MRI. This was performed on 23 September 2007 and showed that she had a mild degree of generalised cerebral atrophy, along with more extensive cerebral atrophy in places, possibly due to malabsorption as a result of BPD surgery.
- The applicant has suffered ongoing health complications since the BPD surgery. She has difficulties with balance, walking and weakness. She is only able to walk short distances and relies on a wheelchair when out in public. Her husband has been her full time carer since September 2005. The applicant further complains of reduced vision, memory loss, diarrhoea, impaired speech and depression. There is also evidence that the applicant has low bone mineral density and is suffering from osteopenia and osteoporosis.
- Ms Shaw’s claim and statement of claim against Dr Broadbent and the hospital was filed on 19 September 2008. In her statement of claim, as amended on 17 November 2009, the applicant claims that it was a term of the contract between the applicant and the first respondent and/or the second respondent and/or it was the duty of the respondents that the respondents would exercise reasonable care and skill in the provision of treatment and advice and that the relevant treatment, advice and surgery provided would be commensurate with that of a competent and skilled surgeon and/or medical facility. The applicant alleges that the duty owed by the second respondent was non-delegable. She alleges that her injuries were caused or contributed to by the negligence and/or breach of contract of the first and/or second respondent.
- The particulars of the breach of contract and negligence are:
- She was discharged from the second respondent hospital despite being unstable and at risk of developing serious complications following the BPD surgery;
- The first and/or second respondent failed to monitor her post-surgery or provide her with an appropriate nutrition plan so as to prevent her from developing malnutrition and other complications following the BPD surgery;
- The first and/or second respondent failed to provide her with appropriate nutritional advice both before and after the BPD surgery, failed to advise of the likely complications and failed to exercise reasonable care and skill in the provision of advice, patient selection, surgery and treatment;
- The first and/or second respondent failed to give her adequate and correct warnings as to the risks associated with BPD surgery particularly in regard to accurately explaining the risk of morbidity and the importance of nutritional advice; and
- The first and/or second respondent failed to consult with or refer her to other medical practitioners for treatment following BPD surgery.
- The applicant’s solicitors met with Associate Professor Simon Woods, a general surgeon specialising in surgical treatment of obesity, in Melbourne on 4 March 2009 to seek an expert opinion on the BPD surgery performed by Dr Broadbent on the applicant and others. A memorandum in respect of this meeting was prepared by the applicant’s solicitors and reviewed and signed by Dr Woods. That memorandum said that although Dr Woods had not seen the surgical technique performed by Dr Broadbent and therefore thought that it was difficult to critique, he could identify four salient points in relation to Dr Broadbent’s performance of the surgery:
- Dr Broadbent made the patients vulnerable pre-operatively by his nutrition, dietary and exercise regimen. The patients came to major surgery compromised, in a weakened state and with a reduced ability to heal;
- He exacerbated that vulnerability post-operatively by giving them inappropriate nutritional advice and failing to maintain standard nutritional parameters;
- He generally refused to request or accept advice from other practitioners. Even when he did acknowledge that the patient had nutritional deficiencies he did not provide adequate care;
- He turned a blind eye to obvious symptoms such as fevers and repeatedly blamed the patient for not complying when he should have been investigating the cause of the symptoms.
- The memorandum also said that Dr Woods was of the opinion that:
- Dr Broadbent failed to increase the protein intake of his patients pre-operatively and post-operatively despite high protein being a fundamental requirement for a healthy immune system and post-operative wellbeing;
- It was inappropriate for Dr Broadbent to feed some patients temporarily via a naso-gastric tube where there are problems with the stomach (the tube should be placed into the small bowel);
- Dr Broadbent’s pre-operative regimen was fundamentally flawed as patients would come into the operation protein and vitamin deficient;
- Dr Broadbent promoted a vegan diet which is just possible to maintain post-operatively if the patient eats enough vegetable proteins. Dr Broadbent, however, discouraged patients from eating those vegetable proteins;
- Dr Broadbent exhorted his patients to exercise but insisted on a protein deficient diet. A person cannot exercise and maintain muscle mass unless the patient maintains protein;
- Dr Broadbent provided “seriously misleading” information to his patients on food composition;
- A short-term problem with Dr Broadbent’s conduct was that patients deficient in protein and vitamins would have their recovery hampered and a reduced ability to cope with complications and infection. The most common short-term risk of the operation is staple line leakage;
- There are several long-term problems that may arise following BPD surgery – BPD surgery deliberately gives the patient malabsorption and as a result, adequate protein is needed otherwise the patient will become malnourished; a serious vitamin A and vitamin D deficiency may lead to reduced bone mass and possible osteoporosis, dysfunction of the immune system, depressive symptoms and increased risk of a variety of cancers.
- Dr Woods recognised that despite its inherent risks, the long term results of BPD surgery for obesity are very satisfactory and that there was no reason why patients should not be back at work and living normal lives following appropriate monitoring.
- Specifically in relation to the applicant, Dr Woods thought that it was more probable than not that the incorrect nutrition and dietary advice of Dr Broadbent had contributed to the applicant’s post-operative complications. The applicant’s lack of protein and vitamins considerably lessened her capacity to recover from a major surgical procedure and exposed her to a greater risk of infection.
- According to Dr Woods, it is significant that after the BPD surgery the applicant presented to Dr Broadbent with obvious symptoms for months and ongoing problems of diarrhoea and vomiting and yet he failed to investigate adequately the cause of the symptoms nor to make any attempt to provide her with nutrition. Ultimately, in Dr Woods’ opinion, Dr Broadbent failed to look into the source of her symptoms after the operation leading to very significant complications which could have been prevented. Further, Dr Woods was of the view that the applicant was at a significant disadvantage in coping with the complications owing to her malnourishment.
- Dr Woods also said that her cerebellar atrophy was probably caused by her malnourished state as a recognised cause of cerebellar atrophy is thiamine deficiency and Dr Broadbent’s dietary regimen was thiamine deficient. Thiamine deficiency is exacerbated by vomiting and the administration of carbohydrates as occurred in her case and is irreversible.
- According to Dr Woods, if the applicant had been given appropriate advice “she would probably not suffer from the ongoing problems that she has including the cerebellar atrophy and would probably have been physically fit to return to normal daily activities such as work.”
- The applicant also sought the advice of Professor Morris, a professor of surgery at the University of New South Wales experienced in the management of serious intra-abdominal conditions and complications, in relation to the performance of the BPD surgery by Dr Broadbent, advice given and post-operative complications. Professor Morris provided a report in respect of the applicant on 14 March 2009 and a further brief report on 2 June 2009.
- In the opinion of Professor Morris, “the nutritional advice that the applicant has received would not be regarded as adequate.” Although Professor Morris was unable to say whether the post-operative sequelae that the applicant developed were due to the nutritional advice of Dr Broadbent, he took the view that “the pre-operative regimen of extremely strict diet is likely to have rendered the applicant malnourished and in particular the lack of protein in her diet may well have adversely affected her chances of good healing.”
- In his report dated 2 June 2009 following further research, Professor Morris expressed the opinion that the applicant’s cerebellar atrophy was, on balance, caused by her post-operative malnutrition and/or malnourishment. He enclosed a review and copies of the more important papers about nutritional deficiency following obesity surgery and its known association with Wernicke’s encephalopathy.
Extension application against the second defendant
- Because of the concessions made by him, the applicant will be able to litigate her claim against the first respondent. This has some relevance to her claim against the second respondent.
- In Broken Hill Pty Co Ltd v Waugh (1988) 14 NSWLR 360 at 372, Clarke JA, with whom Kirby P and Hope JA agreed, held, in respect of a case involving the limitation period where there was more than one possible defendant:
“According to well recognised principles where a plaintiff, who has sued multiple defendants one or more of whom may be liable, shows prima facie that at least one defendant may be responsible, the court is bound to hear the whole of the evidence before entertaining submissions by any other defendant that no case has been established against him. This is so even if the plaintiff has not called any evidence demonstrating the fault of the particular defendant.
The rationale of the rule, as explained in Menzies v Australian Iron & Steel (1952) 52 SR (NSW) 6269 WN (NSW) 68, is that if the rule were otherwise the defendant against whom a prima facie case was shown might escape liability by addressing evidence to the effect that the defendant against whom the case had been dismissed was the party who was actually at fault. Indeed that is what occurred in Hummerstone v Leary  2 KB 664, the case cited in Menzies. Obviously that result would be inimical to the interests of justice.”
- This passage was cited with approval by Keane JA in Raschke v Suncorp Metway Insurance Limited  2 Qd R 549 at .
- An applicant who satisfies the elements of s 31(2) of the Act, as the second respondent has conceded the applicant has, is not entitled as of right to an order. The applicant must still justify the exercise of the court’s discretion in his or her favour. The principal discretionary ground which might prevent an order being made to allow such an applicant to commence proceedings outside the limitation period is prejudice that will be suffered by a defendant if such an order is made. The onus remains on the applicant to establish that the discretion should be exercised in her favour. As Keane JA held in HWC v The Corporation of the Synod of the Diocese of Brisbane  QCA 168 at :
“Even where the requirements of s 31(2) have been satisfied, the burden remains on the applicant for relief to show good reason for the favourable exercise of the discretion. An applicant who is unable to show that a fair trial can take place notwithstanding the delay which has occurred will not discharge that burden.”
- The leading case on the effect of prejudice on the court’s discretion is Brisbane South Regional Health Authority v Taylor  HCA 25. Toohey and Gummow JJ explained it at 548-549 as follows:
“A material consideration (the most important consideration in many cases) is whether, by reason of the time that has elapsed, a fair trial is possible. Whether prejudice to the prospective defendant is likely to thwart a fair trial is to be answered by reference to the situation at the time of the application. It is no sufficient answer to a claim of prejudice to say that, in any event, the defendant might have suffered some prejudice if the applicant had not begun proceedings until just before the limitation period had expired.”(footnotes omitted).
McHugh J held at 555:
“If the action had been brought within time, it would have been irrelevant that, by reason of the delay in commencing the action, [the medical practitioner] might have had little independent recollection of his conversation with the applicant and that the defendant might have had difficulty in fairly defending itself. But once the potential liability of the defendant had ended, its capacity to obtain a fair trial, if an extension of time were granted, was relevant and important. To subject a defendant once again to a potential liability that has expired may often be a lesser evil than to deprive the plaintiff of the right to reinstate the lost action. This will often be the case where the plaintiff is without fault and no actual prejudice to the defendant is readily apparent. But the justice of a plaintiff's claim is seldom likely to be strong enough to warrant a court reinstating a right of action against a defendant who, by reason of delay in commencing the action, is unable to fairly defend itself or is otherwise prejudiced in fact and who is not guilty of fraud, deception or concealment in respect of the existence of the action.”
- To understand the prejudice which the second respondent said it will suffer if an extension order is made against it, it is necessary to consider the evidence sought to be led against it. The applicant led expert evidence by Catherine Sharp, an experienced nurse, to endeavour to prove that the second respondent was in breach of its contract, and failed in its non-delegable duty, to exercise reasonable care and skill in the provision of treatment and advice and that the relevant treatment, advice and surgery provided would be commensurate with that of a competent and skilled medical facility.
- In a report dated 16 October 2009, Ms Sharp opined that the care provided by the staff of the second respondent fell below a reasonable standard expected of a private hospital in the following ways:
- By failing to provide the applicant with two antiseptic showers;
- By putting the applicant at risk of post-operative surgical site infection by not providing antiseptic showers as close as possible to the time of surgery;
- By failing to organise a consultation with a dietician or question the surgeon about input from a dietician;
- By failing to ask senior nursing management to intervene in the patient’s care and obtain input from a dietician; and
- By failing to notify the surgeon or senior nurse manager of the applicant’s febrility on post-operative days three and four.
- Ms Sharp further contended that although the applicant’s post-operative course was “fairly unremarkable” she should not have been discharged from the second respondent hospital on 4 December 2002 as she had not passed flatus on that day and no arrangements had been made for input from a dietician following discharge.
- The factual basis for Ms Sharp’s opinion is found in her examination of the comprehensive records kept by the hospital, including the applicant’s medical chart which includes detailed and extensive notes made by the nursing staff. She was not specifically cross-examined about her report about the applicant.
- The second respondent contested Ms Shaw’s application on the ground of prejudice owing to the length of time that had passed since the operation and the unlikelihood that nurses or staff at the hospital would have a specific, helpful or complete recollection of their care of the applicant beyond the applicant’s patient notes.
- However, all of the relevant nurses who provided care to the applicant, Faye Davies, Nicola Stuart and Gayle Fuller, have been identified and have provided affidavits.
- Upon reviewing the applicant’s patient chart and seeing her signature, Ms Davies recognised that she was involved with the applicant’s pre-operative preparations but had no independent recollection of the applicant. She said that if she had concerns about a patient she would discuss them with the registered nurse with whom she was working. Her evidence was that her notes on the applicant reflected a thorough summary of the treatment provided, the medications dispensed and the nursing care given during the course of her shift. Anything of significance to the treatment and care of the applicant would have been recorded in the notes. The nurse in charge of the ward would review any of her concerns and if it was also of concern to her it would have been recorded in the chart. If the nurse in charge reassured her and was satisfied with the situation, it might or might not be recorded in the chart. So far as pre-operative procedures are concerned, she said all the preparations were ticked off on a form which was prepared as a checklist for pre-operative procedures.
- Ms Stuart, another nurse involved with the applicant’s pre-operative preparations, has no independent recollection of the applicant but was able to refer to the standard instructions for pre-operative care. Her evidence in cross-examination was that her notes on the applicant reflected a thorough summary of the treatment provided, the medications dispensed and the nursing care given during the course of her shift. Anything of significance to the treatment and care of the applicant would have been recorded in the notes. In re-examination she asserted that that meant that if something was not recorded in the chart it definitely did not happen.
- There are good clinical reasons for the patient charts being detailed and comprehensive. Patients in hospital are nursed around the clock by different nurses on different shifts and so it is important that all relevant and significant details are recorded. Nurses cannot be expected to retain any detailed recall apart from what is recorded in the patient chart. This explains why it is important that comprehensive notes are kept in the patient chart and reduces the prospect that the nursing staff will have to rely on their actual memory.
- Ms Fuller was the Nurse Unit Manager during the applicant’s admissions to the hospital. She did not remember anything about the applicant or her care whilst in the hospital and did not recall whether nursing staff raised any concerns or queries about the applicant’s care. Ms Fuller’s evidence was that generally if nursing staff raised concerns with her about a patient’s condition, for example the patient’s haemoglobin levels, temperature or other aspects of the patient’s care, this would have been recorded in the patient’s chart. If the results were abnormal, Dr Broadbent would have been notified. Her usual practice was to have a conversation with the Director of Nursing about any adverse outcomes. She said that in some cases incident reports were kept.
- Ms Fuller was able to give evidence as to Dr Broadbent’s requirements for shaving or clipping patients prior to surgery, showering prior to surgery and pre-operative and post-operative care. While she did not specifically remember whether the applicant was shaved or clipped prior to undergoing surgery, she recalled that Dr Broadbent required all patients to be clipped from the nipples to the pubic area prior to surgery. Her evidence was that at this time clippers were used to remove hair from the area. Her oral statement in evidence as to not remembering in what year the change from generally shaving to clipping happened is of little moment for two reasons: first, she has been a nurse since 1969 and there was no suggestion that the change in practice was recent; secondly, Dr Broadbent required all his patients to be clipped. It appears unlikely then that the second respondent would be disadvantaged in answering this allegation of negligence.
- Ms Fuller said that the first respondent was autonomous in his care and did not want any other practitioners involved with his patients. She said any suggestion that another practitioner or allied health professional, such as a dietician, should become involved would be dismissed. She did not always regard this as appropriate.
- The second respondent also called evidence, in each of the cases involving this hospital, of its relationship with Dr Broadbent and other records kept by the hospital.
- Christine Samin was the Director of Nursing at the hospital from 1997 until 2007. She provided evidence on affidavit about the relationship between Dr Broadbent and the hospital and about Dr Broadbent’s medical orders. David Millen, the current Manager of Clinical Services at the hospital, also provided an affidavit in relation to Dr Broadbent’s medical orders.
- As the Director of Nursing at the hospital, Ms Samin was required to attend meetings of the Medical Advisory Committee, the committee responsible for accrediting specialist medical practitioners, otherwise known as Visiting Medical Officers (VMOs).
- The first respondent had been accredited as a VMO at the hospital for a number of years prior to Ms Samin’s appointment as Director of Nursing. The first respondent held clinical privileges for general surgery which entitled him to admit patients to the hospital for the purpose of undergoing elective and emergent surgical procedures. Dr Broadbent was not an employee of the hospital and there was no employment contract in existence between the hospital and the first respondent. The hospital did not remunerate him and he invoiced patients directly for his medical services.
- VMOs at private hospitals operate their own medical practice independent of the hospital. They utilise the hospital facilities and nursing staff for patients who require admission and treatment at a private facility. In order for a patient to be admitted to the hospital, they must be referred for admission by a credentialed VMO.
- In the case of the first respondent, he had allocated surgical operating time at the hospital and would book patients on his surgical list as required. He would determine the date of their surgery according to his set surgical list and he would then notify patients of the date and time of their admission to the hospital and obtain their consent to undergoing the nominated procedure.
- The hospital required the first respondent’s patients to sign a generic hospital consent acknowledging that they had engaged the first respondent to undertake the nominated procedure, that they understood that he was “not an employee of the hospital …” and that the hospital had not given the patient “any advice as to the medical treatments/procedures to be undertaken …”. Ms Samin attached a copy of the consent form signed by the applicant on 27 November 2002.
- Details of the patient bookings would then be faxed by the VMO’s private practice rooms to the hospital. Any emergency procedures that could not be added to the surgical list would be arranged by the first respondent in collaboration with the hospital coordinator and/or the theatre manager.
- Following the patient’s admission to the hospital, a nursing history was undertaken which detailed the reason for the patient’s admission, his or her medical and surgical history and information relevant to discharge planning. A copy of the applicant’s pre-admission nursing history was exhibited to Ms Samin’s affidavit.
- Apart from this discussion by nursing staff with the patient pre-operatively, there was no discussion with the patient regarding the medical details of the proposed surgery. That was the sole responsibility of the first respondent. The first respondent had responsibility for the medical decisions made regarding the patient’s management while admitted to the hospital. The hospital did not supervise any of its VMOs in the management of their patients or the performance of surgical procedures undertaken by them.
- The patient was prepared for surgery in accordance with the orders given by the patient’s admitting VMO. The medical orders detailed the VMO’s instructions for the pre-operative preparation of patients, nurse initiated medications and post-operative instructions.
- Exhibited to Ms Samin’s affidavit were Dr Broadbent’s medical orders for all procedures from January 2001. Under the heading “Specific Pre-op Preparation”, was the instruction to “shave all operation sites”. Beside the instruction to shave all operation sites was drawn the symbol <. The top line led to a note dealing with the shaving requirements for laparoscopic hernia and the bottom line to a note “See specific instructions for instructions for Bilary Pancreatic Diversion and major Colonic Surgery”. In context, this appears to be a reference to Dr Broadbent’s instructions for shaving for BPD and major colonic surgery. Ms Samin could not recall whether specific medical orders ever existed for BPD surgery and said she understood that the hospital had been unable to locate such orders. Ms Samin said she understood that the hospital had attempted to locate copies of the medical orders in place for the first respondent prior to this time, but had been unable to do so. She was not able to recall whether any medical orders existed prior to January 2001. Any such order would not, in any event, be relevant to the applicant’s surgery which occurred after that date.
- Mr Millen said that he had caused a search to be undertaken of the archived files of medical orders held by the hospital for visiting medical officers and had been advised that the hospital had been unable to locate any written “specific instructions” from the first respondent in relation to BPD surgery.
- Ms Samin’s evidence was that on admission to the hospital, the patient was considered to be the sole responsibility of the admitting VMO. If other medical or allied health care providers were required to be involved in the patient’s management, it was at the discretion of the VMO, who must make the appropriate referrals directly to such other doctors who were credentialed at the hospital.
- The hospital did not employ dieticians whilst Ms Samin held the position of Director of Nursing. If a dietician was required to become involved in the patient’s management, a referral was made by the VMO to a dietician credentialed by the hospital. Dieticians who were credentialed by the hospital operated their own private practice independent of the hospital and were not employed or remunerated by the hospital.
- The decision to discharge a patient must be made by the admitting VMO. Nursing staff did not have the authority to discharge patients from the hospital. Ms Samin’s evidence was that following discharge, the hospital had no ongoing role in the patient’s care. Her affidavit exhibited the Nursing Discharge Summary relevant to the applicant.
- The applicant submitted that there is no prejudice to the second respondent: that the failure of nurses to remember the specific details of nursing care is not sufficient prejudice to conclude that a fair trial can no longer be conducted. The second respondent submitted that the court should not exercise its discretion to grant leave to extend the limitation period because of the prejudice occasioned to the hospital which prevented the matter being tried fairly.
- There is no doubt that litigation provides difficulties if it is conducted after the limitation period is past and yet the legislation provides that the court may extend time. The question is whether the applicant has satisfied me that notwithstanding any prejudice caused by the delay it is possible to have a fair trial. To do so the applicant must displace what McHugh J referred to as the general rule in Brisbane South Regional Health Authority v Taylor at 555, that “actions must be commenced within the limitation period” which “should prevail once the defendant has proved the fact or the real possibility of significant prejudice”.
- The factors that persuade me that any potential or actual prejudice is not significant, that it is possible to have a fair trial and so to exercise my discretion in favour of extending the limitation period against the second respondent in this case include:
- With the exception of the specific instructions with regard to shaving for BPD surgery, the hospital holds all the relevant general records relating to its relationship with the first respondent;
- More importantly, there are comprehensive records of this patient’s care including the hospital’s consent form, pre-admission nursing history, patient charts and discharge summary;
- The applicant had three admissions to the hospital;
- The hospital had standard procedures and there is no reason to believe they were deviated from in this case;
- The second defendant has available to it all the nurses relevantly involved in her care;
- As the matter will be proceeding against the first respondent, it is likely that many of the matters relevant to the applicant’s case against the first respondent will be litigated in any event.
- The applicant has therefore satisfied the court to exercise the discretion to allow her to proceed against the second respondent. The period of limitation for bringing proceedings against the second respondent should be extended to 19 September 2008.
- I will order that the time limit for the commencement of proceedings claiming damages for personal injuries by the plaintiff against the first and second defendants be extended to 19 September 2008, pursuant to s 31(2) of the Limitation of Actions Act 1974. I will hear submissions as to costs.
- Published Case Name:
Gail Shaw v Broadbent & Anor
- Shortened Case Name:
Gail Shaw v Broadbent
 QSC 425
18 Nov 2010
No Litigation History