McGarry v State of Queensland
[1998] QDC 341
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- McGarry v State of Queensland[1998] QDC 341
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McGarry v State of Queensland[1998] QDC 341
McGarry v State of Queensland[1998] QDC 341
IN THE DISTRICT COURT HELD AT BEISBANE QUEENSLAND | Plaint No 147 of 1993 |
[Before Boyce QC DCJ]
[SR McGarry v State of Qld & Anor]
BETWEEN:
SEAN RAYMOND McGARRY | Plaintiff |
AND:
STATE OF QUEENSLAND | First Defendant |
AND:
WAI-KI PUN | Second Defendant |
JUDGMENT
Judgment delivered: 10th December 1998
Catchwords: | Negligence – hospital authority and orthopaedic surgeon – failure to warn of risks of surgery – failure to give timely treatment of bacterial infection |
Counsel: | ˜ |
Solicitors: | ˜ |
Hearing Date(s): | ˜ |
IN THE DISTRICT COURT HELD AT BRISBANE QUEENSLAND | Plaint No 147 of 1993 |
BETWEEN:
SEAN RAYMOND McGARRY | Plaintiff |
AND:
STATE OF QUEENSLAND | First Defendant |
AND:
WAI-KI PUN | Second Defendant |
REASONS FOR JUDGMENT - BOYCE D.C.J.
Delivered the 10th day of December 1998
The plaintiff (hereinafter referred to as “Mr McGarry”) sues for damages for personal injury caused by the negligence of the defendants.
The second defendant (hereinafter referred to as “Dr Pun”) was an orthopaedic surgeon employed by the Toowoomba Base Hospital at all relevant times.
When this action was commenced, the first defendant was the Darling Downs Regional Health Authority. The parties are agreed that, pursuant to statutory amendments, the action must now continue against the State of Queensland and the appropriate amendment has been made. For convenience I shall refer to the first defendant as “the hospital”.
Mr McGarry was born on 23rd June 1970. He was an enthusiastic and promising rugby league player. He suffered an injury at football to his left knee in 1990. He was an apprentice plumber at the time of these events. He is now a qualified plumber.
After his left knee was injured at football in 1990 there were ongoing problems with the left knee. These were possibly aggravated by a netballing incident in 1991. Mr McGarry was most anxious to resume a promising career in rugby league. He may well have been successful in going on to representative level.
He was referred by his general practitioner to the hospital.
Mr McGarry was seen in the outpatient department by Dr Pun as orthopaedic surgeon on 4th March 1991.
I am satisfied that at that stage -
- (1)Mr McGarry would not have been able to resume playing football unless he underwent surgery to his left knee.
- (2)Mr McGarry was most anxious to resume playing football.
Dr Pun examined Mr McGarry and informed him that he would require arthroscopy. There is a dispute as to whether an appropriate warning as to the risks of surgery was given by Dr Pun. Mr McGarry denies that he was given an appropriate warning as to possible risks either then or at any later time.
The evidence of Dr Pun is that -
- (1)He told Mr McGarry that he would require arthroscopy and possibly arthrotomy.
- (2)He would have warned Mr McGarry of possible risks in the surgical procedure. This was his invariable practice.
As is common, the hospital notes made by Dr Pun at the time did not record any warning being given by Dr Pun. Further, Dr Pun is relying on his usual practice in this situation. He does not have a specific recollection of what was said.
Mr McGarry was admitted to the hospital on 29th July 1991.
Following the admission to the hospital on 29th July, Mr McGarry signed a consent form to the operation. The consent is dated 29th July 1991 and is witnessed by Dr Javorski, who was a resident medical officer employed by the hospital at the relevant time.
Dr Javorski gave evidence that he explained the surgical procedure to Mr McGarry before the consent form was signed, and explained to him possible risks with the surgery. Once again, Dr Javorski made no notes at the time. He is relying on his usual practice in this situation.
Mr McGarry says that he did not sign the consent form until the following day, that is the day of the operation on 30th July 1991. (I note the consent form is dated 29th July 1981). Mr McGarry says that Dr Javorski did not explain any risks to him, but merely sought his signature to the form.
The operation under general anaesthesia on 30th July 1991 revealed a complete tear of the interior cruciate ligament and a large tear involving the middle portion anterior horn of the lateral meniscus. The torn middle portion of the lateral meniscus was debrided arthroscopically. Arthrotomy was performed to remove the torn anterior horn of the lateral meniscus.
Mr McGarry was discharged the next day on the morning of 31st July 1991. His temperature at 6 a.m. was 36.8°C. He was advised to attend the outpatient physiotherapy and to use crutches.
On the evening of 31st July 1991 Mr McGarry returned to the hospital with his mother. During the day, Mr McGarry had noticed increasing pain in the left knee. This had become so severe that he returned to the casualty department.
He was seen in the casualty department at about 9.15 p.m. by a resident medical officer, Dr Allardyce. There was an elevated temperature of 38°C. I am satisfied the elevated temperature and severe pain were significant matters. Dr Allardyce does not recall the incident. He has to rely on the hospital notes which are therefore of critical importance.
The hospital notes made by Dr Allardyce record that Mr McGarry presented with throbbing pain of the left knee with no relief from simple oral analgesia. Mr McGarry had slight ooze from the puncture sites of his arthroscopy and his knee was erythematous.
Dr Allardyce cleaned and dressed the wound. Dr Allardyce made a telephone call to the orthopaedic registrar. Details of the conversation are not known. Dr Allardyce then advised Mr McGarry to return to the orthopaedic clinic the following morning.
The next morning Mr McGarry attended the outpatients clinic at about 9 a.m. About 100 mls of haematoma was drained from his knee joint. He was admitted to the orthopaedic ward for further follow-up. The clinical findings on the morning of 1st August 1991 included pain, significant effusion, significant ooze from the wound and a temperature of 38.1°C. No diagnosis of infection was made when he was seen by Dr Pun. I note that Dr Pun asked for the knee to be aspirated to confirm the diagnosis and to relieve the pressure from pain.
The blood removed from the knee was sent to the laboratory for analysis. The report from the hospital pathology clinic is in evidence. It shows that the blood sample was collected at 10 a.m. on 1st August. The test result at 11.17 a.m. showed the presence of “staph aureus”.
At 6 p.m. on 1st August, Mr McGarry was commenced on flucloxacillin intravenously 1 gram 6 hourly. Various doctors comment that a rather long time had elapsed between the pathology result and the commencement of flucloxacillin. The reason for the delay does not appear.
I am satisfied that the antibiotic administered was the appropriate antibiotic in the circumstances. It is possible that a somewhat stronger dose may have been more appropriate, but I am not satisfied that this is a matter of any great importance. It is most unfortunate that there was a rather long delay before an antibiotic was administered.
On 2nd August 1991, Mr McGarry underwent further surgery consisting of an arthroscopic lavage of the left knee. On 6th August 1991, he underwent a further operation, namely a synovectomy. On that date flucloxacillin intravenously was increased to 1 gram/4 hourly. The medication continued until 19th August when flucloxacillin 500 mg/4 times a day was substituted.
Mr McGarry was discharged home on 21st August 1991 to continue oral flucloxacillin at approximately the same dose for a further 4 weeks. Mr McGarry received intensive physiotherapy before he was discharged from hospital.
Mr McGarry was seen regularly in the outpatients department. Thereafter he was readmitted on 21st October. On 22nd October 1991 manipulation of the left knee under anaesthesia and arthroscopy of the left knee was performed. Intensive physiotherapy was started after the operation.
On 29th October 1991, manipulation of the left knee was again performed at the hospital. He continued with physio. He was finally discharged home on 13th November 1991.
Thereafter he was seen regularly in outpatients and the physiotherapy department.
Mr McGarry has been left with a permanent partial disability of his left knee which I find to be about 20%.
Liability
On the question of liability, the issues are as follows:
- 1.The failure to warn Mr McGarry of possible risks.
- 2.The allegedly negligent performance of the arthroscopy.
- 3.The dosage of flucloxacillin.
- 4.The failure to diagnose the infection earlier and the failure to commence treating the infection earlier.
- 5.The causation of Mr McGarry's injury, i.e. had remedial issues been instituted earlier, would Mr McGarry have had a more favourable outcome?
I now deal with these issues.
The Failure to Warn
The defendants accept that in order to discharge the duty of care owed to Mr McGarry, it was necessary for the defendants to warn Mr McGarry prior to submitting to surgery about the risk of infection developing in the knee joint.
The defendants also concede it was necessary to inform Mr McGarry of the prospect that the arthroscopy procedure might be converted into a more substantial procedure, an arthrotomy. However, the defendants submit that Mr McGarry has not pleaded this matter and that, in the circumstances, it is irrelevant.
The law in relation to medical negligence is set out in the decision of the High Court in Rogers v Whitaker (1992) 175 C.L.R. 479. The major judgment is the joint judgment of Mason C.J. and Brennan, Dawson, Toohey & McHugh J.J.
The law imposed upon Dr Pun as a medical practitioner a duty to exercise reasonable care and skill in the provision of professional advice and treatment.
That duty is a “single comprehensive duty covering all ways in which (the defendant) ... (was) called upon to exercise his skill and judgment” extending to examination, diagnosis and treatment of Mr McGarry: see Rogers at 483.
The standard of reasonable care and skill required of Dr Pun was that “of the ordinary skilled person exercising and professing to have that special skill”: see Rogers at 483 and at 487.
In Rogers' case the relevant skill was that of “the skill of an ophthalmic surgeon specialising in corneal and anterior segment surgery”: see Rogers at 483.
Here, the relevant skill is that of a surgeon practising in orthopaedic surgery.
In Rogers at 489-490 the Court said:—
“Whether a medical practitioner carries out a particular form of treatment in accordance with the appropriate standard of care is a question in the resolution of which responsible professional opinion will have an influential, often a decisive, role to play; whether the patient has been given all the relevant information to choose between undergoing and not undergoing the treatment is a question of a different order. Generally speaking, it is not a question the answer to which depends upon medical standards or practices. Except in those cases where there is a particular danger that the provision of all relevant information will harm an unusually nervous, disturbed or volatile patient, no special medical skill is involved in disclosing the information, including the risks attending the proposed treatment. Rather the skill is in communicating the relevant information to the patient in terms which are reasonably adequate for that purpose having regard to the patient's apprehended capacity to understand that information ... The law should recognise that a doctor has a duty to warn a patient of the material risk inherent in the proposed treatment; a risk is material if, in the circumstances of the particular case, a reasonable person in the patient's position, if warned of the risk, would be likely to attach significance to it or if the medical practitioner is or should be reasonably aware that the particular patient, if warned of the risk, would be likely to attach significance to it. This duty is subject to the therapeutic privilege.”
It must be shown that there is a causal link between any negligence made out in respect of such failure to warn and the undergoing of the surgery in question. Causation is determined on a “commonsense” basis: see March v E & H Stramere (1990) 171 C.L.R. 506.
I am satisfied, on the balance of probabilities, that Mr McGarry was warned that there were risks associated with submitting to surgery of this sort and, moreover, was informed of the prospect that the arthroscopy might have to be converted to an arthrotomy. I am satisfied that he was told of these matters firstly by Dr Pun when he attended at orthopaedics outpatients on 4th March 1991, and secondly, when he was told this by Dr Javorski following his admission to the Toowoomba Base Hospital on 29th July 1991.
It is true that each of the doctors does not have a specific recollection of what was said to Mr McGarry. Each of them was deposing as to his usual practice. It is improbable that both the doctors failed to give an appropriate warning to Mr McGarry.
As is often the case, the facts as to the giving of an appropriate warning cause difficulties. A consultation will usually be a unique event for a patient but merely a routine matter to the surgeon.
If the patient is a credible witness and says that in a consultation before the surgery no warning as to risks was given, and the surgeon has made no contemporaneous notes of any warnings, then the surgeon may well be at some risk if there is litigation after the surgery on the failure to warn of risks. The surgeon has consultations with many patients. The patient usually has only one illness.
Surgeons may find it very irritating to spend time writing notes or handing out printed warnings as to risks when these are not required for medical reasons. Nevertheless, one suspects that negligence actions against surgeons are increasing in Australia.
The approach of the courts does not indicate any bias against surgeons. A similar approach has long been taken by the courts towards the evidence of other professional men, particularly solicitors. The approach of the courts is based on common sense and everyday experience of human affairs.
One suspects that time may well not permit surgeons to make extensive notes as to warnings given as to risks. Ultimately, the remedy may lie in surgeons giving printed warnings to patients setting out the various risks. Even then, a carefully drawn printed list may omit some possible risks.
Mr McGarry gave evidence that he was not warned as to the risks. He claimed that had he been warned as to the risks by either Dr Pun or Dr Javorski, he would have taken time to discuss the matter with his parents and to consider his position.
This type of allegation will often be made by any person who has had a bad result after surgery. It does not follow that a patient in this situation is deliberately giving false evidence. One might think that many patients would find it impossible to dismiss from their mind the problems which they consider to have resulted from the surgery. There is a very powerful temptation for a patient to reconstruct events after a bad result. Further, self interest and knowledge gained by hindsight may affect the patient's evidence.
I am satisfied that Mr McGarry was given an appropriate warning as to risks by both Dr Pun and Dr Javorski.
Even if Mr McGarry were not warned about the possibility of infection or the prospect that the arthroscopy might have to be converted to an arthrotomy, it must nevertheless be proved on the balance of probabilities that had he been warned, he would have declined to submit to surgery - Green v Chenoweth, (unreported, Court of Appeal, No 10998/1996 - 11th November 1997 following Hotson v East Barkshire Area Health Authority (1987) AC 750.)
I find that even with the appropriate warnings of the risks of surgery associated with the arthroscopy/arthrotomy procedure, Mr McGarry would nevertheless have gone ahead with the surgery.
He was a young man who greatly enjoyed his participation in rugby league football. He had had four attendances at hospital as a result of injuries suffered at football. He was most anxious to resume playing football.
I am satisfied that, at the time he went to Dr Pun, he would never have been able to resume playing football again unless he submitted to surgery. This would mean also that unless he submitted to surgery, he would never have the chance to reap the rewards of playing professional football at an advanced level.
It is interesting to note that an experienced orthopaedic surgeon, Dr Meibusch, could not recall a single instance of a patient declining surgery when informed of the risk of a possible infection.
Under cross-examination, Mr McGarry conceded that had he been told that the risk of infection was less than 1% he would have gone ahead with the operation. I note that Mr McGarry is not a sophisticated person. His response to this part of the cross-examination made him a “cross-examiner's delight”. In re-examination on this matter, Mr McGarry indicated he had been confused. One suspects that at that time he appreciated that his earlier answer posed some difficulties for the case.
I am satisfied that the risk of infection, is somewhere between 1 in 4000 (the risk associated with arthroscopy) and 1 in 128; (the risk associated with arthrotomy).
It was hoped by Dr Pun that an arthroscopy would do all that was necessary to repair the damage to Mr McGarry's knee, and an arthrotomy would not be required.
About this time in 1991, Dr Pun was performing at least 5 or 6 arthroscopies per week as opposed to 2 or 3 arthrotomies per month.
The Allegedly Negligent Performance of the Arthroscopy
The late Dr Donald Watson and Dr Meibusch have both commented on the extraordinary growth of bone at the distal end of the shaft of Mr McGarry's left femur. This appears on x-rays. A theory advanced by both doctors is that this may have resulted from infection which in turn was a consequence of damage to the periosteum from the penetration of the arthroscope on 30th July 1991. Both Dr Pun and another orthopaedic surgeon, Dr Gillett, reject this theory.
I am satisfied that there is no evidence from which I could conclude that the fact that the periosteum was damaged was indicative of Dr Pun's having fallen below the standard to be expected of a reasonably competent orthopaedic surgeon. The evidence is equally consistent with such a phenomenon simply being one of the risks associated with orthopaedic surgery. This event might eventuate even with the greatest of care being taken.
In any event there is no evidence that Mr McGarry is now any worse off than he would have been had he suffered the incidence of infection in his knee in the absence of the damage to the periosteum. Mr McGarry cannot point to any additional damage which the stripping of the periosteum has been responsible over and above that caused by the infection. Once the bacteria had penetrated the surgical wound, damage was inevitable.
The Dosage of Flucloxacillin
I am not satisfied that had a more potent dosage of flucloxacillin been administered, the outcome for Mr McGarry would have been different. Even if the dosage of the antibiotic administered to Mr McGarry was less than that which Dr Whitby would have regarded was optimal, the dosage appears to have been effective.
The Failure to Diagnose the Infection Earlier and The Failure to Commence Treating the Infection Earlier
It is under this heading that the most difficult issues in this case arise.
In Rogers v Whitaker (supra) the High Court at p.487 observed:
“In Australia it has been accepted that the standard of care to be observed with by a person with some special skill or competence is that of the ordinary skilled person exercising and professing to have that special skill. But that standard is not determined solely or primarily by reference to the practice followed or supported by a responsible body of opinion in the relevant profession or trade. Even in the sphere of diagnosis and treatment, the heartland of the skilled medical practitioner, the Bolam principle has not always been applied. Further and more importantly, particularly in the field of non-disclosure of risk and the provision of advice and information, the Bolam principle has been discarded and instead, the courts have adopted the principle that, while evidence of acceptable medical practice is a useful guide for the courts, it is for the court to adjudicate on what is the appropriate standard of care after giving due weight to ‘the paramount consideration that a person is entitled to make his own decisions about his life’.”
So far as the hospital is concerned, there was a direct non-delegable duty of care owed to the patient: Albrighton v R.P.A. Hospital (1980) 2 N.S.W.L.R. 542 (C.A.); Ellis v Wallsend District Hospital (1989) 17 N.S.W.L.R. 553 (C.A.); Kondis v State Transport Authority (1984) 154 C.L.R. 672 at 685-686; Burnie Port Authority v General Jones (1994) 179 C.L.R. 520 at 550.
The most favourable evidence for Mr McGarry's case comes from Dr Michael Whitby, a consultant physician in infection. He is the director of infectious diseases and infection control at Princess Alexandra Hospital, Brisbane.
As happened with a number of other medical witnesses, Dr Whitby reviewed the hospital records and some other medical reports. There is in evidence as Exhibit 6 a lengthy report by Dr Whitby dated 11th October 1994. This report is a most lucid analysis of the complex problems in this case.
Dr Whitby then prepared a supplementary report dated 30th January 1998 (Exhibit 8). Dr Whitby gave evidence at the trial. I found his evidence to be of the greatest assistance in determining the issues in this matter.
Some of the salient points that emerge from Dr Whitby's evidence can be stated as follows. Mr McGarry was a young man who was discharged from the hospital on the morning of 31st July. The hospital records show that when his temperature was taken at 6 a.m., it was 36.8°C.
When he returned just after 9 p.m. that evening, his temperature was 38°. He was complaining of throbbing pain which was not being eased by painkillers. There was some discharge from the wound and there was erythema.
At p.6 of his initial report (Exhibit 6) Dr Whitby comments as follows:
“4. When would Staphylococcus aereus septic arthritis such as acquired by this patient become obvious?
The early signs of inflammation caused by this organism may have become obvious within 24 hours of the operation. The period will vary with both Mr McGarry, the organism involved, and the concentration of organism involved.
This patient, on discharge from the hospital on the morning of the 30th July, was afebrile, i.e. without an abnormal temperature, at 6.00 am in the morning. He returned at 9.00 pm that night, some 15 hours later with a temperature of 38°C, some reddening around the lateral incision site and some discharge from the lateral incision wound (Emergency Department record 30.7.91).
In my opinion, it could then be said that early signs of infection were recognisable when Mr McGarry presented at that time (9.00 pm, 31st July, 1991) with pain in his knee. This must be qualified by pointing out that the signs of infection at this early stage are sometimes difficult to differentiate from the signs of tissue trauma caused by the operation itself, which may also cause pain and a low grade temperature. Nevertheless, discharge from the wound, erythema and a temperature of 38°C would be more consistent within an infection than with post operative inflammation due to the operation.
5. What treatment was appropriate to monitor any development of post operative infection while Mr McGarry was in hospital?
In the 24 hours after the operation while Mr McGarry was in hospital, he was initially closely monitored in the early post-operative phase with blood pressure, pulse rate and temperature recordings. These showed no abnormalities. As mentioned in the above question, on discharge day, Mr McGarry's temperature was normal. It would not be unexpected for Mr McGarry to have some pain in his knee, and I do not believe that it would have been possible to determine that this wound was infected prior to his discharge on the 31st July. There is nothing in the clinical record that would suggest Mr McGarry should not have been discharged at that time.”
Dr Whitby then comments that he believed that signs of infection were present and recognisable on the evening of 31st July 1994. This should have prompted further investigation at that time means the next morning.
A most important matter noted by Dr Whitby in his supplementary report (Exhibit 8) is that organisms such as staphylococcus increase in number tenfold every 40 minutes. A delay of 18 hours would therefore represent significant organism multiplication with subsequent tissue destruction.
In this case there was a grave risk to Mr McGarry if staphylococcus were allowed to continue to multiply.
Dr Whitby stressed the point that treatment of Mr McGarry should be carried out on the “worse case scenario”, given the grave risk to the patient. The worst case was infection.
Dr Whitby was of the opinion that the following steps should have been Carried out:
- 1.Mr McGarry should have been admitted to hospital on the evening of 31st July.
- 2.The wound should have been aspirated.
- 3.The sample should have been sent to the pathology department for urgent analysis. This should have been available within two hours.
- 4.The patient should then have been commenced on a dosage of flucloxacillin.
The medical evidence is that the appropriate procedure must always be to take the blood sample first before antibiotic is administered. If the antibiotic were administered before a blood sample is taken, then it may be impossible to know what bacteria has to be treated.
Dr Whitby summarises his views in Exhibit 6 at pp. 12-15. Given the complexity of these matters, I set out this summary in full:
- “1.Mr McGarry had a confirmed Staphylococcus aureus infection following an arthroscopy and arthrotomy of his left knee. The sensitivity pattern of the organism suggests that it is not a multi-resistant variety which occurs most commonly in hospitals; it has the common sensitivity pattern of those Staphylococcus aureus strains found in the community, and the more likely source of the organism was from Mr McGarry's own skin.
- 2.That organisms from Mr McGarry's skin are the common cause of infection in arthroscopy and arthrotomy is well recognised. For this reason, such procedures on the knee are carried out in the full sterility of operating theatres with Mr McGarry having had pre-operative washes with antiseptic, and with an antiseptic solution applied to the skin immediately prior to surgery. The clinical notes of the hospital either imply or specifically state that such procedures were carried out in this Plaintiff's case.
- 3.The risk of infection with arthroscopy is < 1:4000, and with arthrotomy is < 1:100. These are very low risks of infection and for this reason, peri-operative antibiotic prophylaxis is not conventionally utilised in these operations, as the risks from the antibiotics outweigh their benefits.
- 4.From the recordings in the clinical notes, I do not believe that there was any reason to suspect that Mr McGarry had an infection in his knee when he was discharged on the 31st July, 1991. However, on re-presentation to Casualty at 9.00 pm, the Medical Officer states that there was erythema about the wound, ooze from the wound, and Mr McGarry had a temperature of 38°C. I believe these signs should have been interpreted as infection, and could not be regarded as entirely consistent with post-operative tissue trauma following arthroscopy and arthrotomy. There would have been, at that time, some indication to admit Mr McGarry, aspirate the knee and commence antibiotic therapy; however, whether this was carried on the night of the 31st July or the following morning could well be a matter of debate, depending on exactly how prominent those clinical signs mentioned above were.
- 5.On the morning of the 1st August, the definitive tests for diagnosing infection, i.e. aspiration of the joint with subsequent microscopy, were carried out. This is appropriate management and did confirm infection with Staphylococcus auerus. I would argue that, if this test had been carried out the night before, then antimicrobial therapy could have been started some 12 hours earlier and may have helped settle the infection faster. Nevertheless, even when the aspiration was carried out, it appears there then was a further 8 hour delay in instituting antibiotic therapy, presumably while awaiting results from the laboratory.
- 6.Subsequent therapy with intravenous Flucloxacillin for 3 weeks and a more prolonged oral Flucloxacillin course is again appropriate management. My only criticism of this aspect of the management would be that the dosage of flucloxacillin, certainly for the first 5 days until it was increased from 1 gm 6th hourly to 1 gm 4th hourly, is at the lower end of the therapeutic range for a patient whose weight was at least 82 kgs, if not 92 kgs.
Overall, the risk of infection with arthroscopy and arthrotomy is relatively low. I do not believe that there could have been any other reasonable intervention, that was not undertaken, that would have prevented this Plaintiff's infection. Management during his arthroscopy and arthrotomy from an infection control point of view appears exemplorary. (sic)
However, subsequent management of the infection can be criticised on the following rounds:
- 1.There appears to have been significant signs of inflammation on the evening of the 31st July 1991, which in the context of a patient 24 hours post-arthroscopy and arthrotomy, could have been interpreted as infection. While the subsequent investigative procedures were appropriate, these could have been carried out on that evening, rather than being left to the next day, thus allowing institution of appropriate antimicrobial therapy some 12 hours earlier.
- 2.After the aspiration investigation was undertaken on the 1st August, there was then a further delay of 8 hours before appropriate antibiotic therapy was introduced.
- 3.The antibiotic therapy as utilised with flucloxacillin was appropriate as choice of drug and in route of administration, but was at the low end of the dosing range for a patient with a post-operatic spetic arthritis and a weight of 80-90 kgs.
In summary, I do not believe there is anything in the peri-operative management of this patient's arthroscopy and arthrotomy that can be criticised in terms of preventing the infection. In spite of improvements in knowledge of control and prevention of infection, and in medical techniques, infections will still invariably occur. The delay in appropriate investigation and in the introduction of antibiotic therapy may have caused the infection to be more prolonged than necessary, and this may have increased the degree of joint destruction suffered by Mr McGarry; however, even if the infection had been diagnosed on the evening of the 31st July, and appropriate therapy instituted then, the 36 hours elapsing between the time of operation when the organism entered the joint and the introduction of antibiotics, during which time infection could not be diagnosed, may well have been sufficient to produce enough joint destruction to prevent a 100% recovery of function.”
Dr Whitby noted that if antibiotics were administered, these would have attacked the bacteria within a few hours.
The evidence of Dr Greg Gillett, an orthopaedic surgeon, called for the defence indicates that an orthopaedic surgeon may be concerned that a good surgical result could subsequently be adversely affected by the careless handling of the wound by a resident medical officer.
Dr Whitby commented that there would have been no difficulty in Mr McGarry being admitted to the hospital shortly after 9 p.m. on the evening of 31st July and an urgent pathology report being obtained on a sample taken from the wound. Dr Whitby notes that this procedure is well recognised and there should not have been any difficulty in having it carried out on that evening at the hospital.
Given the grave risk to the patient if Staphylococcus were present and the administration of flucloxacillin was deferred, I think there was a strong argument for Mr McGarry being admitted to hospital and the matter being taken in hand forthwith.
I set out in full Dr Whitby's supplementary report (Exhibit 8) after considering an opinion obtained for the defence from Dr Greg Gillett.
- “1.My initial report on this matter, dated 11 October 1994.
- 2.The opinion of Dr Greg Gillett, Consultant Orthopaedic Surgeon, dated 2 May 1995.
My interpretation of Dr Gillett's report is that there are substantial areas of complete agreement with my own opinion and essentially only three areas of significant disagreement. One of these areas of disagreement is the dosage of antibiotics used in this plaintiff's case. You will note in my original report that while I believe that the initial dosage of flucloxacillin was too low for a man of Mr McGarry's weight, I also accept that this is not a significant point as the outcome of the infection was one of cure, thus suggesting that the antibiotic dose was sufficient to eradicate the infecting organism.
The remaining two points of difference between myself and Dr Gillett relate to the following facets of the matter:—
- 1.Whether there was sufficient indication of infection in Mr McGarry's knee on the night of 31 July 1991 to have instituted appropriate investigations for infection, made the diagnosis and supplied appropriate therapy.
- 2.Whether initiation of this therapy at that time would have made a significant difference to the outcome.
In preface to my comments on these above matters, I think that it is important to place in context the clinical signs of inflammation and their meaning in medicine. Inflammation is classically a pathological process which is identified by the clinical signs of heat, swelling, redness and pain about a particular locality of the body, in this case a surgical wound. It is not synonymous with infection, although infection is the major cause of inflammation. However, there are other causes of inflammation. These, as alluded to in my report, can include tissue trauma at the operation itself; and they can include bleeding into a joint, i.e. haematoma, as suggested by Dr Gillett. However, of the causes of inflammation in the post-operative setting, infection is by far the most important because of the devastating sequelae that may occur, if it is not recognised and not treated as early and as appropriately as possible.
Frequently in clinical practice, it is initially difficult to determine the cause of inflammation with any precision. In these circumstances, the worse case is treated and as the worse case is usually infection, investigations for causative organisms and institution of appropriate antimicrobial therapy are undertaken. This is because, in general, antibiotics are relatively non-toxic and the benefits of placing a patient with signs of inflammation post-operatively on antibiotics until the diagnosis is clear, far outweigh the risks. In fact, one of the roles of Infectious Diseases Physicians is frequently to decide whether the signs of inflammation do represent infection and whether the antibiotics started empirically by a particular clinician require to be continued or not.
In context of this background, I make the following comments:—
- 1.Was management on the night of 31 July appropriate?
I agree with Dr Gillett that the signs with which Mr McGarry presented on the evening of 31 July 1991 represent inflammation. This may have a number of causes including, as he suggests, post-operative haematoma formation, or alternatively infection with the operative site.
However, in such circumstances, where the clinical features focus the likely site of inflammation on the operative site, then investigations which separate out the infective causes from the non-infective causes should be instituted as soon as the possibility of infection is recognised. In this matter, whether the signs were consistent with superficial or deep infection is irrelevant, as both require investigation and treatment as soon as such a circumstance is recognised.
Dr Gillett agrees aspiration of the knee is appropriate and in fact states if this had occurred on 31 July, then the diagnosis may have been made. Aspiration of a knee is widely carried out by non-orthopaedic surgeons and under sterile conditions is regarded as a procedure of low morbidity. As over 100ml of blood stained fluid was aspirated the next morning, this should not have been a difficult procedure.
The differentiation between bleeding into or over the joint and infection in or over the joint following the operation in this case is not made, as Dr Gillett suggests, solely on the positivity of the Gram stain. It will be made on three criteria:—
- a)The absolute number of white cells and ratio of white cells to red cells within the fluid aspirated.
- b)The positivity of the Gram stain.
- c)The results of culture of this fluid.
In this post-operative setting, the first two criteria mentioned above are very insensitive. The definitive test, of course, is the culture result, but this may take some 48-72 hours to return and therefore initial diagnosis and antibiotic therapy needs to be based on the microscopy results i.e. criteria 1 and 2.
For this reason, it is common practice to commence patients with suspected joint infection on antibiotics immediately the laboratory specimen has been taken. If this is not done, then the results of microscopy which should only take 90-120 minutes to return from the laboratory can be awaited, but if this does not give clear and definitive elimination of the possibility of infection (and in many cases post-arthroscopy it is not going to do so), then the worse case is treated with the institution of antibiotic therapy, while awaiting the culture results. If the culture results are positive, the antibiotic therapy is justified and can be continued; if they are not positive, further clinical assessment as to their need can be made.
Therefore, in relation to Mr McGarry's presentation on the evening of 31 July 1991, I believe, that this patient had signs of inflammation about the operative site in the presence of a raised temperature. If a peripheral white cell count had been performed at that time, the white cell numbers would probably have been increased, and they may have shown toxic granulation, both of which would be signs favouring infection. If the knee had been aspirated on that evening, the white cell numbers in the aspirated fluid would have been high, and the Gram stain may have been positive. These features would have provided definitive evidence to commence antibiotics. Even if these tests were negative, if infection was clinically suspected, antibiotic therapy would have been instituted.
Therefore, I hold with my opinion that the diagnosis could have been made if these investigations had been undertaken on the night of presentation. However, I also concur with Dr Gillett, as is detailed in my original report, that the need for these investigations at that time must be based on the clinical assessment of the signs of inflammation. While, from reading the notes, I believe that there sufficient features to suggest infection, I have already conceded in my original report that this must be the decision of the attending clinician at the time, who may have felt that the signs of inflammation were not sufficient to warrant these investigations at that time, and that reassessment of the knee the next morning was the appropriate management.
- 2.Would appropriate treatment on July 31st have altered the outcome?
In terms of the likelihood of antibiotic therapy instituted on the night of the 31st July having more effect than that instituted on the morning of 1st August, or alternatively at 6pm on the evening of 1st August, I reiterate my original statement that this is a relatively short time period and is difficult to know with confidence what effect early institution would have had in terms of Mr McGarry's eventual outcome. However, it is an established fact that the earlier infection is treated, the less tissue damage occurs and the better the outcome. Therefore the logical extension of this principle is that therapy instituted on the evening of the 31st would have challenged of a much smaller organism load and much less tissue reaction, and that therefore, the likelihood of subsequent tissue damage would be much less than did occur after therapy was instituted at 6pm on the 1st August when organism proliferation would be much greater and tissue reaction and damage much more marked. It should be remembered that organisms such as Staphylococci increase their numbers ten fold every 40 minutes, and therefore a delay of 18 hours represents significant organism multiplication with subsequent tissue destruction.
- 3.Was management carried out on 1st August appropriate?
I concur with Dr Gillett's remarks in relation to the correctness of the procedures eventually carried out on 1st August. However, as detailed above, I think that it is imperative that if an aspirate is taken for the diagnosis of a potentially infected joint, the investigation is urgent and the result must be acted upon as soon as is possible. Results of microscopic examination of that aspirate should have been available within 90-120 minutes of the aspirate being sent to the laboratory, and on this basis if the Gram stain was positive, a definitive diagnosis would have been made and therapy could have been instituted. Therefore, I reiterate my opinion that even if one accepts, on the basis of the clinician's judgment on the evening of 31st July that it was safe to withhold investigations until the following morning, within two hours of those investigations on the following morning, antibiotic therapy should have been instituted.
However, the time difference between therapy instituted early in the morning of 1st August and therapy instituted at 6pm of that is relatively small viz 6-8 hours. Whether therapy earlier in the morning would have made a difference to outcome is questionable.
SUMMARY
In summary therefore, in general I concur with Dr Gillett's opinion which does not substantially differ from my own. The salient points of difference are as follows:—
- 1.On my reading of the clinical notes, I believe that there was sufficient evidence to institute investigations for infection on the evening of 31 July and these investigations may well have lead to a definitive diagnosis and the institution of appropriate antibiotic therapy at that stage. However, I concur with Dr Gillett and repeat what is stated in my original report that this a contentious issue. The clinician at the time is best able to judge the severity of those signs of inflammation and if, in that clinician's opinion, they did not point to significant inflammation, then it is difficult to dispute this on the basis both retrospectivity and written records.
However, I believe that if a diagnosis of infection had been made on that evening and appropriate therapy, in terms of intravenous antibiotics and subsequent arthroscopic washout was performed, then it is very possible that the outcome in Mr McGarry would have been much better.
- 2.I concur with Dr Gillett's opinion that following aspiration on the morning of 1st August, therapy should have been instituted either immediately the aspirate was taken or alternatively, within 120 minutes once the microscopic results were available. However, that this was not done, and that therapy was delay unit 6pm that evening, may not have significantly altered Mr McGarry's outcome.” (my underlining)
I turn at this stage to the evidence given by Dr Greg Gillett. His report dated 2nd May 1995 is in evidence as Exhibit 9.
Dr Gillett's opinions will be easier to follow if I set out extracts from Exhibit 9 as follows:
“In relation to Point 4 which relates to “when would Staphylococcus aureus septic arthritis as acquired by this patient become obvious”, I would state as follows:
This is a very difficult condition to diagnose in the post operative period. Usually the diagnosis is made after the septic arthritis is well established. The symptoms include severe pain, a general feeling of being unwell, anorexia and a history of fevers and rigours. The physical findings are usually those of a high temperature greater than 38°C, usually a tachycardia and inability to move the knee in any fashion. The knee would be hot and swollen but the main feature is that there is no active or passive range of motion of the knee.
In the progression of the septic arthritic process to the point where these classic signs are found, the changes may be subtle and require judgement by the clinician as to whether they warrant further investigation or monitoring at that point. When Mr McGarry returned to the Hospital at 9.00 p.m. on the evening of 31.7.91 he had a temperature of 38°C. His pulse rate is recorded as 80 and his respiratory rate at 20. Dr Allardyce's notes indicate a slight ooze from both sites including a slight erythema of the knee wound (lateral incision). These are not the recorded signs of established septic arthritis.
It would be my opinion a prudent Casualty Officer would have considered the possibility of infection either being in the wound or in the knee itself. From the notes this has obviously been considered as he contacted the on-call Orthopaedic Registrar. Based on this discussion it was elected to review appropriate management for a condition which was obviously diagnosed clinically at that time as not being a septic arthritis of the knee. This was prudent and appropriate management. That is Mr McGarry was reviewed at a later time to re-assess the condition.
At this point (31.7.91 9.00 pm) Mr McGarry had a post operative fever and a sore knee. The causes of this could have been a haemarthrosis in the knee which may produce a fever as well as pain in the knee. He may have had a haemarthrosis in the knee as well as other pathology such as post operative atelectasis in his lung producing a post operative fever. He may have had an early cellulitis process involving the knee tissues producing a fever and he may have had just a general reaction of the surgery in the tissues to produce his fever. At this point in my opinion, based on the signs recorded, the diagnosis was not of a septic arthritis of the knee and I think a prudent Practitioner would have considered the diagnosis and if excluded on clinical grounds provided appropriate management which was to review Mr McGarry the following morning. This is what was done. Aspiration of the knee at this point, that is 31.7.91 at 9.00 pm, may have made the diagnosis which was subsequently made or it may have contributed to the long term morbidity of Mr McGarry's knee. That is a placing a needle into the knee is not without morbidity and infection may have been introduced at that time. In considering aspiration of the knee a clinical judgement is paramount as infection can be introduced by improper use of aspiration of the knee.
At the Orthopaedic Clinic appropriate measures were taken by the doctor in attendance. This doctor aspirated the knee to find signs of a haemarthrosis. This would be consistent with a person having a post operative fever as well as irritability of the knee and pain ie the diagnosis of infection was not made at that point, appropriate management was then undertaken. This was to have a gram stain performed of the material and on that gram stain, bacteria was seen in the form of gram positive coccus. Once this diagnosis was made then appropriate antibiotic therapy was undertaken and appropriate management of his condition continued after that point.
In response to Dr Whitby's comment Point 5, appropriate monitoring of his infection was undertaken and I would agree with these comments.
Comment Point 6, I would agree with this point that there was nothing that could have been done in this situation to avoid post operative infection. I would disagree that signs of infection were present and recognisable on the evening of the 31.7.94. Further investigation at that time could have been undertaken or the clinical course which was undertaken, could have undertaken. I believe both courses of action would be regarded as reasonable by a practicing Orthopaedic Surgeon.
Dr Whitby comments that there is a delay in relation to aspiration and commencement of intravenous flucloxacillin. The Clinician aspirated blood from the knee which was a low likelihood of being infection but did appropriate investigations which were a gram stain and the results, I would imagine, should have been known earlier than the 6 pm when the intravenous flucloxacillin was administered. This is the only point that I would criticise in the management. It would seem that in an average laboratory the results should have been known before that and intravenous antibiotics started before that time. I don't believe however the delay of 1.8.91 caused difference to the outcome.
Consideration of whether early diagnosis would have caused a lesser degree of joint damage is unknown. I believe the degree of bacteria in the joint would have been significant at the time of presentation on 31.7.91 and the inoculation most likely occurred intra-operatively and bacterial numbers would have been increasing during that period of time and the difference between institution of antibiotic therapy from the 37.7.91 to 1.8.91, in my opinion, would not materially alter the outcome.
........
I would disagree with the statement according to the note that it was very clear that infection had occurred. My reading of the note is that there is no mention of a diagnosis made and appropriate management of a person with a painful knee has been undertaken. The Registrar's notes in the Clinic and then the Resident's notes on admission to the Ward to not make a diagnosis that the man was thought to have infection at that point. His temperature was 38.1°C in the Clinic and his temperature was 37.6°C with a pulse rate of 86 on admission to the Ward. This is not classic signs of someone with a definite infection. Management was then instituted at an appropriate time when organisms were diagnosed. An appropriate antibiotic was then undertaken. The dose chosen was low but one would expect high levels of antibiotics would have been delivered to the inflamed tissue. In my practice the dose would have been 1 gram 4th hourly of flucloxacillin. A higher dose of up to 2 grams could be considered depending on his progress. The duration of therapy and oral antibiotics were appropriate.
In relation to Dr Whitby's overview and summary, I agree with Point 1, 2, 3, I disagree with Point 4 on the grounds as above. I believe that infection should have been suspected and it obviously was according to the notes of Dr Allardyce and the knee was not regarded as infected. As stated above, appropriate management was undertaken, the man was reviewed the following morning. In the Clinic appropriate investigations were undertaken and my only criticism in relation to his management is that I would have imagined that the gram stains should have been made available at an earlier time and antibiotics stared at earlier time. However in the overall picture, do not believe this delay materially altered the problems with this man's knee in the longer term.
In relation to his criticism on page 17, I would disagree that there were significant signs of inflammation on the evening of the 31.7.91. There were signs of inflammation and I would agree that they could have been interpreted as infection but a clinical judgement was undertaken and he was reviewed the following day. Aspiration revealed haemarthrosis and then subsequent investigation of a gram stain was performed. Point 2, the aspiration was undertaken and then the only delay I think occurred was the time frame from when the gram stain was available and when the antibiotics were undertaken. This is not from the time of aspiration. Point 3, I would that the antibiotics were in the lower end of the dose range.
Point 5 I would agree with. Point 6 I agree that the dose was a lower range for this infection.
Dr Whitby's final paragraph in relation to the result of delay in diagnosis as he portrays it is that it portrays it is that it may have increased the degree of joint destruction suffered by Mr McGarry but I do not believe that delay between the evening of 31.7.91 and the commencement of antibiotic therapy the following evening would have altered the outcome. The time of administration of antibiotics would be in the period after surgery when the bacterial count was rising. This is the critical time in my opinion. As stated by Dr Whitby and confirmed by me, it is impossible to make the diagnosis at that time.” (my underlining)
Dr Gillett elaborated on a number of these matters in his evidence.
I bear in mind that Dr Gillett is speaking as an orthopaedic surgeon and Dr Whitby is speaking as a specialist in infectious diseases.
Where there is a difference between Dr Gillett and Dr Whitby on the course of treatment that should have been followed at the hospital on the evening of 31st July, I prefer the opinions expressed by Dr Gillett.
Dr Meibusch, an orthopaedic surgeon, gave evidence. He examined Mr McGarry in May of 1992 and gave a report which is in evidence as Exhibit 4.
Dr Meibusch corrirnented on the likely consequences once infection had commenced in the knee:
“Your chances of getting out with a 10% after that sort of infection is zilch virtually. 10% - an unstable knee footballer type knee that stops his playing. You know anti cruciate damage, meniscus damage, medial ligament damage, Donoghue triad type knee that's unstable that's 10-15%.” (I note that there seems to be an error on p.31 line 17 of the transcript where the word used is “anti acrutiate”.)
“Once he's got blank pus in his knee he's in real trouble”
I infer from the evidence of Dr Meibusch that once the Staphylococcus infection commenced, it was highly unlikely that Mr McGarry would have anything less than a 10-15% disability in the leg and the probabilities were that the percentage disability would be greater. Without the administration of antibiotics, the final result in the leg would probably be a permanent disability in excess of 50%.
With the administration of antibiotics, the final percentage disability is 20%.
I found the evidence of Dr Meibusch helpful. Where there is a conflict between Dr Meibusch and Dr Whitby as to the course of treatment that should have been undertaken at the hospital, I prefer the evidence of Dr Meibusch.
The defence criticise, in particular, one aspect of Dr Whitby's evidence. This arises from Dr Whitby's reading of the clinical notes. As I have said earlier, Dr Allardyce does not recall this matter and has to rely only on the clinical notes.
I should observe at this stage that the clinical note made by Dr Allardyce at 9.15 p.m. on 1st July refers to slight ooze from the wound sites coupled with some “slight erythema of the knee wound”.
Evidence was given by Mrs McGarry, the mother of Mr McGarry, that she attended the hospital with Mr McGarry on this evening and spoke with Dr Allardyce. According to Mrs McGarry, Dr Allardyce agreed that the wound was “very red”. I do not accept this evidence by Mrs McGarry. There is no mention in the notes of any swelling in the knee.
The submission for the defence is that when the wound was examined by Dr Allardyce on the evening of 31st July, the signs were suggestive more of a haemarthrosis than a developing infection.
A difficulty with the defence submission is that it may be thought to fail to take account of the grave risk to Mr McGarry if a Staphylococcus infection were present and allowed to go untreated with flucloxacillin.
As I have said previously, the opinion of Dr Whitby was that one ought to treat on the “worst case scenario” in this type of situation.
In the evidence of Dr Meibusch, he observed:
“In this situation if I was presented with that in the fracture clinic if I thought there was an infection I would take my samples and I would start treatment immediately.”
Dr Meibusch further observed:
“If you're really certain that it is you know a full blown infection, well you don't wait for all the results. You just start your treatment.”
The evidence of Dr Pun was that in 1991 at the hospital, infections were uncommon after a surgical operation. If infection did occur, then in more than 50% of cases, the infections were due to “golden staph”.
Dr Pun observed that golden staph is very common in the normal population. One third of the normal population carry golden staph in their body, and that in two thirds of infection cases, the germ actually comes from Mr McGarry's own skin.
Whilst golden staph was uncommon in 1991 at the hospital, I conclude that if a doctor had reason to suspect the possibility of infection in a surgical wound, there was a more than 50% chance that the infection would be “golden staph”.
Dr Pun described his treatment of Mr McGarry on the morning of 1st August. He believed that he saw him together with his registrar. He believed he had a lot of pain and swelling at the knee. From his recollection, he believed at the time that Mr McGarry had a very common complication with arthroscopy, i.e. a collection of fluid inside the knee. It is usually a combination of blood and liquid and is very common. Dr Pun said that because of severe pain and the swelling in the knee, he admitted him to the ward and asked the orthopaedic registrar to put a needle into the knee to aspirate the knee. This was to confirm the diagnosis and to relieve the pressure from the pain. A significant matter is that the orthopaedic surgeon, Dr Pun, did not believe on his examination that infection was present. This may be thought to confirm the clinical judgment of Dr Allardyce on the previous evening.
Dr Pun said that a specimen was sent to the laboratory and he was informed later that there was bacteria in the specimen. A decision was made to start the patient on antibiotics.
I note that there was a most unfortunate delay in commencing the administration of the antibiotic. The laboratory test shows the result at 11.17 p.m. The administration of the antibiotic was not commenced until 6 p.m. Steps ought to be put in place in all hospitals to ensure immediate action once a laboratory test shows the presence of “golden staph” in a patient.
It will be observed that a considerable period of time was lost from 9.15 p.m. on the previous evening until 6 p.m. on the following day before antibiotic was administered. Had there been a further significant delay by the hospital in the administration of antibiotic, there may have been great difficulty in the hospital avoiding a finding of negligence.
Dr Pun indicates that when the specimen was taken it was handed to the pathology department to handle and he was not sure of the process thereafter. Dr Pun was asked why he did not institute antibiotics when he saw Mr McGarry on the morning of 1st August.
Dr Pun advised that the most common complication after arthroscopy was the collection of liquid inside the knee. He stated that when he saw the knee, he was convinced that that was the complication he was suffering from and he was not convinced there was any infection. He said he considered it was not appropriate to give antibiotics until he was convinced that Mr McGarry was suffering from infection.
Dr Pun observed that the signs of infection would be as follows. The most obvious sign would be pus coming up from the wound. Then there would be pain and swelling. He said that in the early stage of infection it is extremely difficult and almost impossible to differentiate these two and that one needed further investigation to clarify the position e.g. to aspirate the knee and send a specimen to the laboratory to look for any bacteria.
Dr Pun commented that when looking at a swelling after arthroscopy, the chance was that it was very common that it was due to bleeding or swelling. He regarded an infection as more than rare - less than 1 %. He was convinced on the morning that Mr McGarry was suffering from bleeding inside the joint. He commented that when you put the needle inside the joint you could sometimes get some idea whether the diagnosis was correct or not. If it was “frank blood” it was most unlikely to be infection. If it was pus, it was infection. He observed that by putting a needle inside the joint, one could have some early idea, but yet not reach a conclusion. One would usually have to rely on the laboratory to identify bacteria from specimens taken.
Dr Pun was asked whether mere would have been any difference in the outcome for this patient if the administration of antibiotic had been put in place at about 11 p.m. on 31st July rather than at 6 p.m. on 1st August.
Dr Pun observed:
“From my own opinion I won't believe there would be any major difference because in hindsight the infection must happen shortly or at a time of the operation. So it was there more than 24 hours so probably the outcome was set even we are - bring the treatment forward or earlier or a couple of hours so I don't believe there would be a major difference.” (my underlining)
Dr Pun repeated his opinion that the earlier administration of the antibiotic on the evening of 31st July would not make “much difference”.
Dr Pun observed that since 1991 doctors had learnt quite a deal more about antibiotics and that doctors were now concerned about complications with a high dosage of antibiotics. One possible complication of a high dosage is hepatitis.
At one stage in his testimony, Dr Pun commented that he had made a “mistake”. The reasons were not explained. I infer that he was simply speaking with the benefit of hindsight.
The defence submit that -
- (1)both Dr Meibusch and Dr Gillett were of the opinion that, on the balance of probabilities, Mr McGarry, regardless of when the infection was first diagnosed and treated, would have required the subsequent arthroscopic lavage (in fact carried out on 2.8.91).
- (2)Dr Gillett considered that, on the balance of probabilities, regardless of when the initial diagnosis was made and treatment commenced, the course for Mr McGarry would not have been any different.
- (3)Dr Whitby was obliged to defer to the view of the orthopaedic surgeons as to whether a synovectomy would have been necessary in any event and, hence, he was expressly obliged to concede that, against that background, it was impossible for him to offer a view as to what the eventual state of Mr McGarry's knee would have been.
- (4)That being the case, the view of the orthopaedic surgeons must prevail. Mr McGarry failed to demonstrate causation on the balance of probabilities.
- (5)Once the infection had set in in the wound (and that state of affairs cannot be blamed on the defendants), Mr McGarry was in serious difficulty. Anything that was going to be done for him after that really amounted to a salvage operation.
- (6)Quite independently of any breach of duty on the part of the defendants, Mr McGarry would inevitably have been left with a significantly disabled knee.
- (7)No difference has been demonstrated between the position which obtained in fact and the position which would have obtained absent the defendants' alleged breach of duty.
I am satisfied that -
- (1)the major cause of the permanent disability in Mr McGarry's knee is the onset of infection, and
- (2)no negligence on the part of the hospital or Dr Pun was responsible for that initial infection.
- (3)the final condition of Mr McGarry's knee is in no way due to negligence on the part of the hospital or Dr Pun.
- (4)There was no negligence on the part of Dr Allardyce or the hospital on the evening of 31 July.
- (5)There was no negligence on the part of Dr Pun or the hospital on 1st August.
- (6)Mr McGarry's knee is not worse off by reason of any conduct on the part of the hospital.
In all surgery there is a risk of infection. However, the patient's condition or his complaints may require the doctor to exercise considerable care.
In Rietze v Bruser (No 2) (1979) 1 WWR 31 (Man.QB) the patient underwent surgery on her arm. The patient complained for several days after surgery of pain and swelling of the fingers. The orthopaedic surgeon wrongly concluded that the symptoms were caused by the patient's anxiety. As a result of negligent failure to investigate the symptoms properly, the patient was left with Volkmann's ischemic contracture. In the event the patient was left with a hand that was described as “mis-shapen and grotesque”.
In finding the orthopaedic surgeon liable, Hewak J. observed at p.49:
“It is no excuse to say that the cause of the contracture was precipitated by infection and that infection is a hazard of surgery.
........
While one cannot guarantee that post-operative infection will not occur, it is not unreasonable to assume that medical specialists trained in their particular fields should be quick to recognise the development of complications following surgery such as infection at the earliest possible moment and to treat them accordingly. More than usual vigilance is expected of them when they are treating a condition that is unique or unusual. To answer by saying that if a doctor were to spend his time re-examining and re-exploring surgical wounds he would not have time for anything else is not an answer that satisfies the duty of care expected of those charged with the responsibility of looking after the health and wellbeing of the community. The fault lies not with the risk or development of infection but the failure to recognise that it is present as quickly as possible and to take steps to treat it.”
In the leading case of Palsgraf v Long Island Railway Co (1928) 248 NY 339, Cardozo J. observed at p. 100, in an oft quoted passage, that “The risk reasonably to be perceived defines the duty to be obeyed”.
I am not satisfied there was negligence on the morning of 1 August when Mr McGarry was examined by Dr Pun and the orthopaedic registrar. The result of the pathology test was available by 11.17 a.m. Antibiotics were administered at 6 p.m.
Given the comparatively short period of time that elapsed before the administration of the antibiotic at 6 p.m. I am not satisfied there was negligence in respect of the examination on the morning of 1 August. The delay is however unfortunate.
The evidence does not satisfy me that Mr McGarry is worse off as a result of his treatment in the hospital on 31st July and 1st August.
I consider that as a result of the infection Mr McGarry would have suffered a disability of at least 10-15% in his knee. The final percentage disability would have then been much greater but for the administration of antibiotics. I am not satisfied his knee is worse off by reason of the delay in administering an antibiotic.
I turn now to deal with the quantum of damages in any event.
Quantum
A - Failure to Warn
I assess damages first of all on the basis that Mr McGarry has succeeded on the failure to warn. In respect of past economic loss during the immediate post-surgery interval, I allow 47 weeks' loss of income. Mr McGarry resumed his employment as an apprentice plumber in July 1992.
Mr McGarry was always going to be off work in any event post-surgery for a period of two weeks.
I allow a loss of $275.00 nett per week. During the financial year 1990-91, Mr McGarry's average weekly wage was $252.83 whereas, during the period from 7.7.92 to 30.6.93, Mr McGarry's average weekly wage was one of $301.09. It is reasonable to assume that, had he been working during the 1991-92 financial year immediately post-surgery, Mr McGarry would have generated an average weekly wage of perhaps $275.00 nett.
For a period of seven days immediately post-discharge, Mr McGarry required gratuitous care for an average of three hours per day. Thereafter, for a period of some three months, he required gratuitous care for an average of 2.5 hours per day. I allow for past care as follows:
21.08.91 | Seven (7) days' services @ average three (3) hours' services per day @ $9.00 per hour | 189.00 |
28.08.91 to 25.11.91 | 90 days' services @ average 2.5 hours' services per day @ $9.00 per hour | 2,205.00 |
$2,214.00 |
I make an allowance for the possibility of expenditure in undergoing surgery in the future.
So far as future economic loss is concerned, Mr McGarry's ambition to play professional football would only have been realised in the event that he underwent surgery of the like of that performed by Dr Pun on 30.7.91. However, Mr McGarry's case is that, had he been appropriately warned of the risks of surgery, he would not have submitted to the very operation which would have given him a chance of playing football once more and perhaps graduating to the professional ranks.
Had Mr McGarry not undergone surgery on 31 July 1991 he would nonetheless have been left with a very troublesome and at least partially disabled left knee. This would inevitably have been productive of impairment to the left lower limb. Mr McGarry had already had four episodes of the knee clicking and giving way. He could no longer play football. In the absence of surgery, the knee would have slowly deteriorated. Degenerative changes would eventually have forced him to have surgery.
I assess damages as follows:
Pain, suffering, loss of amenities and scarring | 25,000.00 |
Interest @ 2% on $20,000 thereof for seven years | 2,800.00 |
Past economic loss during convalescent interval from 7.8.91 to 30.6.92: 47 weeks' loss of wages @ average $275 nett loss per week = $12,925.00 discounted to | 12,000.00 |
Interest @ 10% on $6,000 [after allowance for plaintiff's interim receipt of social security payments in an assumed sum of $6,000] over 7 years | 4,200.00 |
Agreed past economic loss attributable to postponement by one year of point in time at which plaintiff qualified as tradesman carpenter. | 5,662.11 |
Interest @ 10% on $5,662.11 over 6 years | 3,397.17 |
Future impairment of earning capacity | 20,000.00 |
Past care, calculated on the basis of three (3) hours services per day for first seven days of plaintiff's convalescence @ $9.00 per hour = $189.00 plus 2.5 hours services per day over the next 90 days @ $9.50 per hour = $2,137.50 | 2,326.50 |
Interest @ 4% on $2,326.50 over 6 years | 558.36 |
Future care | Nil |
Allowance for future surgery, calculated by allowing one-half of Dr Boys' $15,000 then discounting the result to allow for the surgery to take place in many years hence | $1,700.00 |
Special damages | $223.00 |
Interest @ 5% on $223.00 over 7 years | 78.05 |
TOTAL | $77,945.19 |
I allow Special Damages of $223.00 as follows:
Schedule of Special Damages
Hire of exercise bike | 30.00 |
Purchase of weights | 40.00 |
Purchase of heat lamp | 25.00 |
Bandages | 20.00 |
Pillows | 30.00 |
Cold packs | 30.00 |
Vitamin E cream | 12.00 |
Liniment | 16.00 |
Analgesics | 20.00 |
$223.00 |
B-Negligent Treatment
I assess damages now on the basis that Mr McGarry failed on the “failure to warn” limb, but succeeded on the basis of a negligent failure to diagnose and treat the condition of infection earlier. His damages will necessarily be assessed at far lower figures. At its best for Mr McGarry, the conclusion must be that, even had treatment to fight the infection been instituted during the evening of 31 July 1991, the probabilities are that the outcome for Mr McGarry would have been only slightly better than it was. The arthroscopic lavage would still have been necessary. The synovectomy would still probably have had to have been carried out. His scarring component would be much the same. It is unlikely that he would have been off work post-operatively for any lesser period of time. It is unlikely that there would have been any less a need for Mr McGarry to be rendered voluntary care and services during the convalescent interval. It is unlikely that the special damages which he incurred in fact would be any less. It is unlikely future surgery, either in the form of an arthrodesis or a total knee replacement procedure, would not still have occurred at some future time.
On this basis, I assess general damages in the sum of $ 10,000 coupled with an award of interest on general damages of $700 (calculated at 2% on $5,000 over 7 years).
I dismiss the plaintiff's action. I give judgment for the defendants.
I order the plaintiff to pay the defendants' costs of and incidental to the action to be taxed on the scale appropriate to an action where the amount sued for exceeds $50,000.