Reid v Rackemann[2003] QDC 397

DISTRICT COURT OF QUEENSLAND

1. [1]
   The plaintiffs in this action apply for leave to amend the statement of claim and an order extending the limitation period pursuant to s 31 of the Limitation Acts 1974. The action is one for damages for negligence in the provision of medical treatment. The defendant is an orthopaedic surgeon. The first plaintiff swears that he underwent an operation in January 1998 at Pindara Private Hospital. A Dr David Zavattaro performed bilateral high tibial osteotomies both of which procedures subsequently failed. Mr Reid then consulted the defendant and in November 1998 Dr Rackemann removed metal work in his knees that had been inserted by Dr Zavattaro. Following that surgery the first plaintiff suffered serious infections in both knees. The defendant prescribed treatment for the infection which included seven days of intravenous antibiotics and two days of oral antibiotic. The antibiotic treatment ceased after the first plaintiff experienced an allergic reaction to that treatment. Between November 1998 and July 1999 the defendant monitored the condition of the plaintiff’s infections through the taking of blood tests and scans. In July 1999 the defendant conducted a revision right knee osteotomy after which the first plaintiff developed a serious infection and was readmitted to hospital on 3^rd August 1999.

2. [2]
   On 12^th October 2000, as a result of ongoing infection in the right knee, an above-knee amputation of the right leg was conducted by a surgeon other than the defendant. Subsequently on 1^st August 2002 a Dr Myers performed a left total knee replacement at the Holy Spirit Hospital in Brisbane following which the first plaintiff suffered a serious infection in the left knee joint. At about that time the second plaintiff showed to Dr Myers pathology reports which had been obtained by the defendant in November 1998 and Dr Myers told the plaintiffs that those reports indicated serious joint infection rather than a wound infection as had previously been thought. Indeed, in his response to the Queensland Health Rights Commission the defendant had stated that the infections he was treating in November 1998 were wound infections as opposed to joint infections and it was not until the plaintiffs spoke to Dr Myers on or after 19^th August 2002 that they became aware of the significant difference between a wound infection and a joint infection.

3. [3]
   The solicitor for the plaintiffs obtained specialist medical reports from Dr John Allman dated 17^th July 2001 and 28^th August 2001. Nothing in those two reports would have justified the commencement of this action.  His conclusions in the report dated 17^th July 2001 referred to the existence of “co-morbidities” that rendered decisions for treatment options complicated. Included in those co-morbidities were the presence of long-standing ulcerative colitis and renal calculi and the plaintiff’s long-term ingestion of a steroid medication, Prednisolone which “masks inflammatory response and the host’s reaction to infection”.       Dr Allman went on to say:

“Overall I can see that there were reasonable grounds for the steps which were taken by Dr Rackemann in his management of the case according to the evidence available to me. Intraoperative infection is always a risk of surgery. It can be due to a breakdown in theatre asepsis but is extremely difficult to track down in regard to its cause.

In my opinion it is also unlikely that the exact timing and use of antibiotics in this case significantly affected the end result.”

4. [4]
   Moreover, in both his reports Dr Allman obviously considered that the infection which occurred was located in the wounds in each knee and not in the bone. His only reference to a bone infection was to the osteomyelitis which developed in the right knee joint, leading to the amputation.

5. [5]
   A further report was sought from the organisation to which Dr Allman belonged and was provided by Dr Georgina Hale on 1^st November 2001. She was asked specific questions including the following:

“3. Dr Rackemann – Should  Dr Rackemann have ensured that our client was treated with appropriate medication following the infection on 18 November 1998 for a considerably longer period of time than that which was undertaken.

She responded:

“Giving one week only of intravenous therapy for a S.aureus wound infection in this situation and in an immunocompromised person such as Mr Reid, was probably not an ideal treatment plan. To be sure of no recurrence of infection, particularly as there had been considerable disturbance in bone after the removal of the osteotomy plates and screws, a four-week course of oral anti-staphylococcal antibiotics or treatment until healing of the wound was complete would have been more ideal. This would considerably decrease the risk of recurrent infection. As in           Mr Reid’s case, there was however, no evidence for recurrence of infection in the right knee at the subsequent 27 July 1999 surgery and the left knee has remained quiescent.”

6. [6]
   Dr Hale ended her report with a section headed “Opinion” in these terms:

“I believe that great care was taken by Dr Rackemann leading up to the decision to do a revision of the right osteotomy on 27 July 1999. In my opinion, given that Mr Reid was immunosuppressed, and had severe antibiotic allergies, expert advice regarding antibiotic cover was needed to plan an adequate prophylactic antibiotic regimen prior to the surgery. Unfortunately, I presume because of the difficulties with Mr Reid’s allergies, Mr Reid was only given intravenous Gentamicin prior to and for 24 hours after the procedure. A revision osteotomy is a lengthy and invasive procedure and should normally be covered with antistaphylococcal antibiotics such as Keflin or Flucloxacillin. Given     Mr Reid’s immunosuppression and past history of staphylococcal wound infection, this precaution should have been of up-most importance. Intravenous Vancomycin or Clindamycin were two possible options that should have been included in the pre-surgery prophylaxis regimen. Had Mr Reid received adequate antibiotic prophylaxis his risk of contracting a post-operative wound infection would have been greatly reduced. Rather than preventing wound infections, prophylactic antibiotics reduce the risk of wound infections.

Prevention of complicated infections immunocompromised patients is a priority since infections are always more difficult to diagnose and treat that in immunocompetent patients. The difficulty in diagnosing a wound infection in an immunocompromised patient was illustrated in this case where there was a lack of localizing signs in the infected right knee during the August 3 1999 admission. The drainage procedure was delayed for at least 5 days because it was not clear clinically, that the right knee was the source of sepsis. Localising signs of infection are always delayed when the immune system function is compromised.”

7. [7]
   A second report of Dr Hale dated 22^nd January 2002 addressed specific questions related to the treatment of infection and she supplied these opinions:

“If antistaphylococcal antibiotics had been administered prior to the revision right osteotomy on 27 July 1999, although less likely, the difficult post-operative infection may still have occurred.

If an infections diseases consultation had been sought prior to surgery, there is a possibility that Mr Reid would have received not only prophylactic antistaphylococcal antibiotics but also a precautionary treatment course until the wound was completely healed. Had this taken place, on the balance of probabilities, the infection would not have occurred.”

8. [8]
   Further, Dr Hale was asked about the difference in outcome for the plaintiff if the infection was prevented as at 27^th July 1999 and responded:

“Had the infection on 27 July 1999 been prevented, Mr Reid would not have been admitted to hospital with sepsis on 3 August 1999. He would not have been critically ill with undiagnosed sepsis during this admission and he would not have had to have intravenous antibiotics or an open drainage procedure. I am not able to comment specifically on whether any outcomes would have been different after this admission, however an infection does adversely affect the function of any join t if there is a serious post-operative wound infection.”

9. [9]
   The above extracts from the four reports obtained from Susan Welling & Associates were all predicated on the belief that the plaintiff had suffered wound infections following the surgery performed by Dr Rackemann in November 1998. That perception continued until the solicitors for the plaintiff received a report from Dr Peter Myers, an orthopaedic surgeon, dated 7^th July 2003. That report related principally to the left total knee replacement Dr Myers had performed on the first plaintiff on 1^st August 2002. In the course of subsequent treatment for what Dr Myers suspected was infection, although there were no clinical signs supporting that opinion, he was shown a pathology report relating to the left knee surgery conducted by the defendant in November 1998. That report contained information so significant that Dr Myers then proceeded to treat a bone infection in the first plaintiff’s left knee.

10. [10]
    A further report was sought from Dr Hale and was provided on 30^th June 2003. She was asked specifically: “Does the pathology report of 28 November 1998 confirm a joint infection of the left knee (septic arthritis)?”  She opined:

“These results confirm a left knee septic arthritis with 7,000 white cells/μL and a positive culture of S.aureus and a Vorynebacterium species. A wound swab from the right knee at operation on the same day also grew S.aureus. Depending at what depth this intraoperative swab was taken it is either suggestive or highly suggestive of a s.aureus or aureus septic arthritis involving the right knee.”

11. [11]
    She was also asked: “Was the antibiotic treatment prescribed by Dr Rackemann post 28 November 1998 appropriate and if not, did it fall below the standard required of a confident orthopaedic surgeon?”  She replied:

“Appropriate antibiotic therapy would have been an outline in the 1998/99 antibiotic guideline (which suggested a two to four week course of intravenous antibiotics). Dr Rackemann stopped all antibiotic therapy after eight to 10 days. I am not aware of any specific ‘standards required of competent orthopaedic surgeons’ however, any medical practitioner is advised to follow the antibiotic guidelines in order to remain ‘in accordance with good practice’. Given Mr Reid was mildly immunocompromised by long-term oral steroid therapy, it was especially important to be conservative in the management of this infection.”

12. [12]
    The next question asked if proper treatment would have led to a different outcome with regard to further surgery on the left knee. Dr Hale wrote:

“It appears that Mr Reid’s bilateral septic arthritis settled despite being ‘inadequately’ treated with only eight to 10 days of antibiotic therapy. In addition, when Dr Rackemann reviewed Mr Reid on several occasions after this treatment course to monitor his progress there were little signs of ongoing infection. On 5.3.99 the investigations included a gallium and bone scan. These tests suggested that the infection was continuing to settle. …  Over the following six months the CRP result decreased and remained low at less than 15. … At this point in time it certainly appeared for all intents and purposes that the bilateral septic arthritis had been cured.

Mr Reid then had an episode of right knee septic arthritis, s. aureus septic arthritis that occurred nearly nine months later after a revision of the right knee osteotomy. Further information provided suggested this episode of septic arthritis did not heal and went on to develop into chronic osteomyelitis. This chronic infection then unfortunately led to a right below-knee amputation. …

Although Mr Reid had a previous episode of s. aureus septic arthritis this was not a contraindication to future surgery provided a thorough inspection of the joint was performed prior to the surgery. Dr Reid [sic] did this with the use of gallium and bone scans and also systemic inflammatory markers (ESR and CRPs). It is also recommended that surgery not be performed within six to 12 months of a?/un treated infection.

The abbreviated treatment course that Mr Reid received in November 1998 probably increased the likelihood of Mr Reid’s post-osteotomy revision infection. However, this infection occurred despite the absence of all signs of infection on gallium and bone scans and also blood tests. In addition, a bone biopsy prior to osteotomy procedure was clear of any signs of infection on both histopathological and microbiological examination.     Dr Rackemann had obviously been meticulous in his search for signs of a residual infection in Mr Reid’s knees before proceeding with the surgery.

A previous episode of joint infection itself increases the risk of subsequently post-operative infections, but is not a contraindication to surgery. In these cases extra caution must be taken to exclude infection prior to surgery. As far as I can glean from the notes, caution was taken to exclude an infection prior to surgery on 27 July 1999. Mr Reid was also at increased risk for post-operative wound infection because of his chronic corticosteroid therapy. These agents decrease the immune system’s ability to fight infection.”

13. [13]
    Although Dr Hale has expressed opinions suggestive of a causative link between difficulties and final condition, those opinions are subject to qualifications to a significant degree. Furthermore, it was not until her report of 30^th June 2003 that the infection suffered by the first plaintiff was located in the bony surface of the knee and not in the surgery wounds. Consequently she would be subject to cross-examination directed to highlighting the change in her opinions which might reflect adversely upon her expertise. The portions of her reports highlighted above, in my view, seriously detract from the weight and value of the evidence she could provide and, I believe justified further enquiry before committing the plaintiffs to an action that could possibly fail.

14. [14]
    The solicitors for the plaintiff next turned to Dr James Hurley, a consultant physician who practises in the area of general medicine and infectious diseases. He was provided with what seems an enormous quantity of material and provided a draft opinion (unsigned) on 8 August 2003. On the fourth page of that report the following appears:

“In addition to the surgical aspects of Mr Reid’s case, there are aspects related to his medical history which was complicated by his underlying ulcerative colitis and long-term treatment with Prednisolone and other medication on occasions.

In addition he has an extensive list of allergic reactions to medications with over 20 medications including seven antibiotic allergies listed.

These medication allergies and also the underlying medical condition (ulcerative colitis requiring Prednisolone therapy) would have modified both the response to antibiotic therapy for a serious infection, modified the signs of such an infection and increased the risk of potential recurrence after treatment of such an infection.

In summary and in hindsight, it is clear (in my opinion) that bilateral (in my opinion) septic arthritis developed at the time of removal of the plates and screws on November 18 1998. At the time and over the subsequent 12 months, the usual clinical signs and results of testing of blood parameters (ESP and CRP) and isotope scanning indicating the presence of the infection were suppressed by Mr Reid’s underlying treatment and his immunosuppressive treatment. However, the microbiological test clearly (in my opinion) indicate a septic arthritis in at least the left knee and likely (in my opinion) also the right knee. This infection eluded detection despite what appears to be an active surveillance for this complication by Dr Rackemann. Both joints were complicated by prior surgery and non-union. In my opinion, the duration of therapy was too short and the subsequently viability of the knee joint for further joint replacements were in jeopardy from November 1998 as a consequence.”

15. [15]
    Dr Hurley was asked the specific question: “Was the antibiotic treatment prescribed by Mr Rackemann in November 1998 appropriate, and, if not, did it fall below the recommended treatment?”  He replied:

“The treatment given was one week of intravenous Flucloxacillin and one day of oral antibiotic therapy. The antibiotic treatment with a total duration of eight days was, in my opinion, inadequate and falls below the recommended treatment.

The generally suggested duration of therapy in both the 1998 edition of The Therapy Guidelines – Antibiotic (version 10 – March 1998), and the current version (version 12, 32003), is four to six weeks of antibiotic therapy of which the first two to four weeks being intravenous antibiotic therapy.” 

Dr Hurley also expressed the opinion that a period of antibiotic therapy towards the maximum recommended duration would have been more likely to have been curative in 1998 and would have led to a more satisfactory outcome in regard to the further surgery of July 1999.

16. [16]
    Dr Hurley’s report clearly identifies the nature of the infection in the plaintiff’s right knee which led ultimately to the above-knee amputation; identifies the source of that infection as the operation on 18^th November 1998 and it is evidence of negligence in Dr Rackemann in the inadequacy of his antibiotic treatment prescribed for that infection.

17. [17]
    S 31(2) of the Limitation of Actions Act reads as follows:

“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 the 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 one 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.”

18. [18]
    The limitation period in respect of a claim based upon the consequences of surgery carried out in November 1998 was 18^th November 2001 and the “material fact of a decisive character” was the fact that the infection in the first plaintiff’s right knee was a condition of septic arthritis and not a wound infection, which condition developed into osteomyelitis requiring the amputation of his leg above the knee. I am satisfied that the receipt of the report from Dr Hurley marks the earliest occasion that a causative link was capable of being established between the operation on 18^th November 1998 and the subsequent amputation.

19. [19]
    S 30 of the Limitation of Actions Act provides that for the purposes of s 31:

“(d)a fact is not within the means of knowledge of a person at a particular time if, but only if:-

(i)he does not at that time know the fact; and

(ii)so far as the fact is capable of being ascertained by him, he has before that time taken all reasonable steps to ascertain the fact.”

20. [20]
    In my view the plaintiff has satisfied the requirements of s 30. As at 30^th May 2002, the date upon which the present statement of claim was filed in this action, he believed that the staphylococcal infection he had suffered following the November 1998 operation was a wound infection which had healed prior to the July surgery. Up till that point and subsequently until he received advice from  Dr Peter Myers, not only the plaintiffs but also all medical experts who considered his case were of the mistaken belief that the first plaintiff’s staphylococcal infection was a wound infection. That misconception was not conclusively disproven until receipt of the report of Dr Georgina Hale dated 30^th June 2003. Even then the causal  link between the inadequate antibiotic treatment provided by Dr Rackemann and the subsequent amputation was not clearly established. That fact did not become known until the receipt of the unsigned draft of Dr Hurley’s report.

21. [21]
    There can be no doubt that knowledge that a causative link could be shown between the November 1998 operation and the subsequent amputation was a material fact, and a material fact of a decisive character. It is also clearly shown that the above material facts were not within the means of knowledge of the plaintiff prior to 8^th August 2003.

22. [22]
    Ss 30 and 31 of the Limitation of Actions Act are in terms which are relevantly identical to the New South Wales limitation statute which was considered by the High Court in Do Carmo v Ford Excavations Proprietary Limited (1983) 154 CLR 342. At p 244 Wilson J cited with approval the following passage from Lord Pearson’s speech in Smith v Central Asbestos Co (1973) AC 518 at 541-2:

“It seems to me that Parliament has drawn the line between ignorance of the facts (material and decisive facts) and failing to draw the conclusion which a reasonable man, with the aid of expert advice, would have drawn from those facts as to the prospects of success in an action. If the applicant did not know one or more of the material and decisive facts, his lateness in bringing the action is excused. If he knew all the material and decisive facts, but failed to appreciate his prospects of success in an action because he did not take expert advice or obtained a wrong expert advice, his lateness in bringing the action is not excused.”

In Berg v Kruger Enterprises (Divisional Besa Qld Ltd)Ltd (1990) 2 Qd R 301 at 302 Lord Pearson’s statement was approved unanimously by the Full Court of the Supreme Court of Queensland. The two authorities referred to immediately above were relied upon by Ms Rosengren, Counsel for the respondent, who also referred me to the decision of Helman J in Katene v George Weston Foods Limited (unreported) delivered 26^th March 1998 where his Honour said:

“In cases like the present, an applicant for extension discharges his onus not simply by showing that he has learnt some new fact which bears upon the nature or extent of his injury and would cause a new assessment in a quantitative of qualitative sense to be made of it. He must show that without the newly learnt fact or facts he would not, even with the benefit of appropriate advice, have previously appreciated that he had a worthwhile action to pursue and should in his own interests pursue it. That is what the application of the test of decisiveness under s 30(b) comes down to.”

23. [23]
    Ms Rosengren argued therefore that the issue to be determined in this application is whether prior to 1^st September 2002 a reasonable person, knowing what the plaintiff knew and having taken appropriate advice on those facts would regard those facts as showing that an action would have a reasonable prospect of success and would result in an award of damages sufficient to justify the bringing of the action. She argued by reference to the medical reports of Drs Allman and Hale that the plaintiff was aware of the relationship between the 1998 surgery and the infection in the plaintiff’s knee and the inadequacy of prophylactic or antibiotic treatment provided by Dr Rackemann. Her argument was based upon extracts taken from the various reports of the medical witnesses but it is clear that both those doctors considered only a wound infection so that the infection which developed into osteomyelitis, leading directly to the need for amputation, was an unrelated event. Moreover, Ms Rosengren’s argument is seriously flawed in that it is based upon selective quotations from the reports in particular of Dr Hale from which various and significant qualifications of her opinion were excised. The portions of Dr Hale’s opinions which I italicised earlier in these reasons were the parts excised from the extracts relied upon by Ms Rosengren. Because of those portions of her reports which had been excised, a competent solicitor would not be satisfied with the quality of the evidence capable of being given by          Dr Hale. In re Sihvala (1979) Qd R 458 Wanstall CJ said:  “In any event it is clear enough that the compound phrase ‘material facts relating to a right of action’ is capable of embracing factors beyond those which comprise the bare and essential ingredients of a given ‘cause of action’ as classically defined in Cook v Gill (1873) LR 8 CP 107 per Brett J at p 116.”

24. [24]
    His Honour also said:

“The issuing of a writ presupposes knowledge, or at least belief, by the plaintiff or his legal advisers, that he can establish the cause of action alleged in his writ by proving the facts that are then within his knowledge. The antithesis of this proposition becomes the basic assumption of the scheme, i.e. that he has not issued a writ because he lacked knowledge of some material fact, on proof of which his cause depended, either entirely or for a worthwhile result. The scheme is designed to relieve such a plaintiff from the consequences of a failure to issue a writ within time which is shown to be due to ignorance of this kind.”

25. [25]
    I am satisfied that it was not until early August 2003 that Mr Smith, the plaintiff’s solicitor, developed the knowledge, or at least the belief that he could establish a cause of action against the defendant arising from the operation performed by him on 18^th November 1998.

26. [26]
    Counsel for the respondent argued further that the plaintiffs had failed to provide any reasonable explanation for their failure to institute proceedings within the limitation period, relating to the November 1998 surgery. The plaintiff’s solicitor, Mr Smith, swore that he had acted for the plaintiffs in unrelated proceedings against Dr Zavattaro which had been commenced on 19^th January 2000. He had intended to resolve the proceeding against Dr Zavattaro before proceeding with the prosecution of the action against Dr Rackemann. His reason for that course was to give his clients the opportunity to decide whether to proceed against Dr Rackemann or not, following the resolution of that earlier claim. However, at the time of the expiration of the limitation period in respect of the operative procedures in July 1999 those earlier proceedings had not been resolved. Moreover, Mr Smith delayed obtaining any medical opinion in relation to the current claim until the Queensland Health Rights Commission had investigated the first plaintiff’s claim against Dr Rackemann. It was not until February 2002 that Mr Smith learnt that the Queensland Health Rights Commission had dismissed that complaint. I can see nothing improper or imprudent in either of those decisions by Mr Smith which resulted in a delay in the institution of the proceedings.

27. [27]
    Accordingly I order that the period of limitation for proceedings to be brought against the defendant relating to the treatment of the plaintiff following an operation performed on 18^th November 1998 by the defendant, be extended so that it expires at the end of one year after the 8^th day of August 2003.

28. [28]
    I further order that the costs of and incidental to this Application be the plaintiff’s costs in the cause.