Hodgson v Broadbent[2010] QSC 427

SUPREME COURT OF QUEENSLAND

1. This is an application made pursuant to s 31(2) of the Limitations of Actions Act 1974 (Qld) (“the Act”) to extend the time within which to institute proceedings for personal injuries to 19 September 2008.

2. On 19 September 2008 Stephen John Hodgson filed a claim for damages alleging that injuries that arose following his undergoing surgery were caused or contributed to by the negligence and breach of contract of the first defendant, Dr Russell Broadbent, and the second defendant, the Allamanda Private Hospital (“the hospital”).

3. However, s 11(1) of the Act precludes the bringing of an action for damages for personal injury due to negligence after the expiration of three years from the date on which the cause of action arose.  The cause of action arose when he underwent surgery on 3 March 2003 and so the period under s 11(1) of the Act expired on 3 March 2006.  Leave was given to commence proceedings on condition that the applicant bring an application pursuant to s 31 of the Act.  Some relaxation of the statutory prohibition against commencing an action after the statutory limitation period is found in s 31 of the Act.

4. Pursuant to s 31(2) of the Act, the plaintiff applied on 17 March 2009 to extend the time limit for the commencement of proceedings against the first and second respondents to 19 September 2008 (“the extension application”).  The proceeding has been stayed by a court order until the extension application is determined.  The applicant is one of nine applicants whose extension applications are opposed by the first respondent or the second respondent and sometimes both.  Each application will be considered separately because each depends on its own facts but there is considerable overlap between them and there is therefore unavoidably some repetition in the separate judgments particularly in the exegesis of the relevant statutory and case law.

5. The Act restricts the rights and liabilities of potential litigants and imposes strict obligations on those who seek remedies in court once the limitation period is past but is, regrettably, less than clear in its expression. In their joint judgment on the construction of this Act, Gummow, Hayne and Crennan JJ said in Queensland v Stephenson [2006] HCA 20 at [1]:

“Of the British ancestor of Pt 3 [of the Act], Lord Reid observed that it had a strong claim to the distinction of being the worst drafted Act on the statute book.^[1]”

6. Kirby J observed, somewhat trenchantly, at [44]-[45]:

“In Ditchburn v Seltsam Ltd, I suggested that an encounter with statutory provisions similar to those under consideration in this appeal was liable to confuse judges and lawyers causing them to emerge ‘on the other side dazed, bruised and not entirely certain of their whereabouts’.  The passage of 17 years, and many more cases struggling with the meaning of the statutory language, has not removed the sense of disorientation. In a competition involving many worthy candidates, Lord Reid's prize remains in place.  This is so although, as Rehnquist J noted in Chardon v Fumoro Solo, ‘[f]ew laws stand in greater need of firmly defined, easily applied rules than does the subject of periods of limitation’. This desirable goal has not been attained in Australia.  This appeal affords the latest illustration of that fact.

In 1986, a law reform commission report was delivered proposing changes to the then template of Australian laws.  It suggested a simplified approach to applications for extension of time for commencement of actions.  However, amendments were not enacted in Queensland applicable to these proceedings, despite judicial endorsement elsewhere of the need for reform.  The result is that, in the present cases, the Queensland courts were obliged to struggle with the complex and obscure statutory language borrowed originally from a deficient English model.”(footnotes omitted).

7. A similar comment had been made by the Queensland Court of Appeal in Carlowe v Frigmobile P/L [1999] QCA 527 at [9]:

“That the extension provisions are complex and extremely technical and have been a fertile source of litigation has been adversely commented upon by the Queensland Law Reform Commission in their review of the Limitation of Actions Act 1974.^[2]”

8. In Carter v Corporation of the Sisters of Mercy of the Diocese of Rockhampton & Ors [2001] QCA 335 at [62], I added:

“The need for law reform is manifest and it has already been the subject of a Queensland Law Reform Commission Report.”

9. Nevertheless, the statute has not been amended and continues to be a fertile source of uncertainty and therefore litigation.

10. Section 31 relevantly provides:

“31Ordinary actions

(1)This section applies to actions for damages for negligence … or breach of duty … where the damages claimed by the plaintiff for the negligence … or breach of duty consist of or include damages in respect of personal injury to any person ...

(2)Where on application to a court by a person claiming to have a right of action to which this section applies, it appears to the court –

(a)that a material fact of a decisive character relating to the right of action was not within the means of knowledge of the applicant until a date after the commencement of the year last preceding the expiration of the period of limitation for the action; and

(b)that there is evidence to establish the right of action apart from a defence founded on the expiration of a period of limitation;

the court may order that the period of limitation for the action be extended so that it expires at the end of 1 year after that date and thereupon, for the purposes of the action brought by the applicant in that court, the period of limitation is extended accordingly.

(3)This section applies to an action whether or not the period of limitation for the action has expired –

…

(b)before an application is made under this section in respect of the right of action.”

11. The interpretation of s 31 is governed by s 30 of the Act, which provides:

“30Interpretation

(1)For the purposes of this section and sections 31 …

(a)the material facts relating to a right of action include the following –

(i)the fact of the occurrence of negligence … or breach of duty on which the right of action is founded;

(ii)the identity of the person against whom the right of action lies;

(iii)the fact that the negligence … or breach of duty causes personal injury;

(iv)the nature and extent of the personal injury so caused;

(v)the extent to which the personal injury is caused by the negligence … or breach of duty;

(b)material facts relating to a right of action are of a decisive character if but only if a reasonable person knowing those facts and having taken the appropriate advice on those facts, would regard those facts as showing –

(i)that an action on the right of action would (apart from the effect of the expiration of a period of limitation) have a reasonable prospect of success and of resulting in an award of damages sufficient to justify the bringing of an action on the right of action; and

(ii)that the person whose means of knowledge is in question ought in the person’s own interests and taking the person’s circumstances into account to bring an action on the right of action;

(c)a fact is not within the means of knowledge of a person at a particular time if, but only if –

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

(ii)as far as the fact is able to be found out by the person – the person has taken all reasonable steps to find out the fact before that time.

(2)In this section –

appropriate advice, in relation to facts, means the advice of competent persons qualified in their respective fields to advise on the medical, legal and other aspects of the facts.”

12. The first respondent does not oppose the application. The second respondent has conceded for the purpose of this application that there is evidence to establish that the plaintiff has a right of action apart from the effect of the defence founded on the expiration of the limitation period and that there was a material fact of a decisive character which was not within the plaintiff’s knowledge or means of knowledge until after the relevant date for the purposes of s 31 of the Act, 19 September 2007, ie one year before the action was commenced. 

13. The application is opposed by the second respondent on the ground of prejudice only. Prejudice is relevant to the discretion that the court must exercise once an applicant has satisfied subsections 31(2)(a) and (b). That discretion is found in the word “may” in the conferral of power to the court in the phrase “the court may order that the period of limitation for the action be extended so that it expires at the end of 1 year after that date”.

14. The only question to be examined is whether the court is satisfied that its power to extend time should be exercised in this case notwithstanding the allegation by the second respondent that it has suffered prejudice. If that question is answered in the affirmative, the applicant will succeed against the second respondent in this extension application. If the question is answered in the negative, then the extension application against the second respondent will be dismissed.

15. To determine that question, it is useful to set out the treatment that the applicant received from the first respondent in the second respondent hospital as well as before and after those admissions.

16. The applicant, who was born 18 September 1952, underwent bilio-pancreatic diversion (BPD) surgery conducted by the first respondent, Dr Broadbent, at the second respondent hospital on 3 March 2003. He was 51 years old at the time of the surgery.

17. BPD surgery is described as a type of bariatric weight loss surgery involving the removal of approximately three-quarters of a person’s stomach and the diversion of parts of the small intestines. As a result of the surgery, a person absorbs less fat and other nutrients and is unable to eat large quantities of food and consequently loses weight.

18. The applicant had a history of atrial fibrillation, hypertension and gastro-oesophageal reflux prior to undergoing the BPD operation. He had a problem with his weight since leaving the military in 1987 and so considered surgical weight loss options. He first consulted with a gastric band specialist, Dr George Fielding, in January 2003 but was put off the procedure when he heard about its problems from other patients. He then read about the first respondent on the internet where the first respondent advertised BPD surgery as the “miracle cure” for obesity. He obtained a referral to Dr Broadbent from his general practitioner, Dr Lalitha Gunasena, at the Middle Park Medical Centre.

19. The applicant’s first consultation with Dr Broadbent was on 21 January 2003. He weighed 155 kilograms at the time. The main reason the applicant went to see Dr Broadbent was for an opinion on obesity management however during his consultation Dr Broadbent explained the benefits and process of BPD surgery. The applicant could not recall the details of the conversation but said that at some point during the consultation he was diagnosed with a fat storage disease. He was advised by Dr Broadbent that if the disease was left untreated he would end up with chronic illness and a short life expectancy. Upon hearing this, the applicant said that he believed that his undergoing BPD surgery made sense.

20. In a letter to the applicant’s general practitioner, Dr Gunasena, dated 21 January 2003 following the applicant’s first consultation, Dr Broadbent described the applicant as suffering from a “genetically inherited” and “relentlessly progressive” fat storage disease which if untreated led to “chronic illness, poverty, depression and a shorter and sad life with an early death.” In the letter Dr Broadbent also presented BPD surgery as a more successful weight loss surgery than gastric lap banding because it required a less severe lifestyle change and had a 95 per cent chance of success.

21. The applicant consulted with Dr Broadbent again on 29 January to discuss BPD surgery. At this consultation the applicant was told that his body stored fat differently to other people.

22. At a further consultation on 5 February 2003 the applicant was told to follow a rigorous fat-free diet and exercise programme in preparation for the surgery. As the applicant was already following the “Lite ‘n’ Easy” diet with some success he continued on this diet and commenced walking approximately 15 kilometres a day.

23. As a condition of undergoing the surgery the applicant was referred by Dr Broadbent to Lee Quist, a former patient of Dr Broadbent and obesity counsellor. The applicant was told by Ms Quist that he needed to follow the first respondent’s instructions at all times in order for his surgery to run smoothly. The applicant also attended sessions of OSSIE (Obesity Surgery Support Information and Education), a support group for BPD surgery patients created by Dr Broadbent which met regularly at the hospital.

24. On 19 February 2003 the applicant had a final pre-operative consultation with Dr Broadbent and was advised that he was ready to undergo BPD surgery. At this consultation Dr Broadbent emphasised to the applicant the importance of following all of his instructions as the most common cause of post-operative complications was said to be patient non-compliance.

25. On 28 February 2003, just prior to the surgery, the applicant signed a consent form acknowledging that the operation depended on “patient compliance”. By signing the consent form, the applicant agreed that post-operatively he would eat a restricted diet consisting of 3 x 50ml fat-free meals per day until ideal weight was reached, after which 3 x 100ml reduced-fat meals were allowed. He also agreed to carry out the exercise programme exactly as requested by Dr Broadbent and recognised that the likelihood of success of the surgery was good provided he complied and continued to comply with all of Dr Broadbent’s instructions.

26. The applicant was admitted to the hospital on 2 March 2003 and underwent the BPD surgery together with a sleeve gastrectomy, duodenal switch, cholecystectomy and the repair of an incarcerated umbilical hernia on 3 March 2003. He weighed 154.7 kilograms at the date of surgery. Post-operatively, the applicant had a naso-gastric tube inserted and was given intravenous fluids and small quantities of ice to suck. He said he felt sore and unwell but was told to get up and walk around. The applicant recalled being made to get out of bed the evening of his operation.

27. Three days after the surgery the applicant noticed that his stomach was swollen. The first respondent placed the applicant on a strict fat-free diet of 50mls of pureed fruit and vegetables on 7 March 2003, approximately 5 days after the surgery. The applicant remembered having a high temperature and being in extreme pain at different times.

28. The applicant was ultimately referred for testing on 13 March 2003 and was found to have a gastric leak owing to a loose stomach suture. As a consequence of this, the applicant said that food was leaking out of his stomach cavity and rotting. The applicant was told by the first respondent that nothing could be done about this as he would have less than a 15 per cent chance of surviving a rectification operation. As an alternative the first respondent inserted a pigtail drain between the applicant’s ribs to drain accumulated fluid and pus from the upper abdomen area.

29. The applicant was discharged from the hospital on 21 March 2003 with the pigtail drain in situ and a temperature of 37 degrees.  He was advised to manage and care for the pigtail drain himself. At home, he continued feeling unwell and weak.  He was unable to eat and required the care of his wife.

30. The applicant returned to the hospital several times following the BPD surgery. On 27 March 2003 he was readmitted to the hospital after collapsing and presenting at the emergency department. He said he had lost approximately 30 kilograms by this stage and was diagnosed with dehydration. He was treated by the first respondent with intravenous fluids and advised to continue with the fat-free diet and eat one banana and an orange per day. He was discharged on 30 March 2003.

31. The applicant returned to the hospital on 14 April 2003 for a day-long pleural effusion drainage procedure. He was then admitted for 5 days on 12 May 2003 suffering from abdominal pain and was diagnosed with anaemia requiring a blood transfusion.

32. On 1 June 2003 the applicant was admitted for treatment of subphrenic collection and underwent surgery for the removal and replacement of the pigtail drain. He was discharged on 28 June 2003. The applicant then went back to the hospital on 30 June 2003 again suffering from abdominal pain. He was diagnosed with a stone in his left ureter and a cystoscopy was performed on him on 4 July 2003. The applicant had two further blood transfusions at the hospital on 14 and 15 April 2004.

33. The applicant also attended at the Ipswich General Hospital in July 2003, August 2003, September 2003 and January 2004 owing to ongoing infections of the pigtail drainage site.  On 11 August 2003 he was admitted to the Ipswich General Hospital because of anorexia.  A gastrografin x-ray was performed on him at the Ipswich General Hospital on 2 September 2003 which showed a fistula had developed from the gastric remnant to the pigtail drain.

34. The applicant did not work for most of 2003 and 2004. He returned to work as a real estate agent in his wife’s business in early 2005 but continued to suffer from fatigue and pain at the fistula site caused by an internal accumulation of fluid.

35. In March 2006 the applicant was admitted to St Andrew’s Hospital at Ipswich for 8 days and was diagnosed with pneumonia requiring intensive intravenous antibiotics. 

36. Mr Hodgson’s claim and statement of claim against Dr Broadbent and the hospital was filed on 19 September 2008. In his statement of claim, as amended on 17 November 2009, the applicant claims that it was a term of the contract between the applicant and the first respondent and/or the second respondent and/or it was the duty of the respondents that the respondents would exercise reasonable care and skill in the provision of treatment and advice and that the relevant treatment, advice and surgery provided would be commensurate with that of a competent and skilled surgeon and/or medical facility. The applicant alleges that the duty owed by the second respondent was non-delegable. He alleges that his injuries were caused or contributed to by the negligence and/or breach of contract of the first and/or second respondent.

37. The particulars of the breach of contract and negligence are:

• He was discharged from the hospital despite being unstable and at risk of developing serious complications following the BPD surgery;

• The first and/or second respondent failed to monitor him after surgery or provide him with an appropriate nutrition plan so as to prevent him from developing malnutrition and other complications following BPD surgery;

• The first and/or second respondent failed to provide him with appropriate nutritional advice both before and after the BPD surgery, failed to advise him of the likely complications and failed to exercise reasonable care and skill in the provision of advice, patient selection, surgery and treatment;

• The first and/or second respondent failed to give him adequate and correct warnings as to the risks associated with BPD surgery particularly in regard to explaining accurately the risk of morbidity and the importance of nutritional advice;

• The first and/or second respondent failed to consult with or refer him to other medical practitioners for treatment following BPD surgery;

• The first and/or second respondent failed to prevent him developing surgical site infection by failing to undertake adequate preparation for surgery and failing to undertake adequate post-surgical treatment;

• The first and/or second respondent failed to prepare him adequately for surgery by clipping body hair and/or providing two antiseptic showers; and

• The first and/or second respondent failed to take steps to reduce infection in circumstances where the pigtail drain was draining a large and abnormal amount of fluid and pus.

38. The applicant’s solicitors met with Associate Professor Simon Woods, a general surgeon specialising in surgical treatment of obesity, in Melbourne on 4 March 2009 to seek an expert opinion on the BPD surgery performed by Dr Broadbent on the applicant and others.  A memorandum in respect of this meeting was prepared by the applicant’s solicitors and reviewed and signed by Dr Woods.  That memorandum said that although Dr Woods had not seen the surgical technique performed by Dr Broadbent and therefore thought that it was difficult to critique, he could identify four salient points in relation to Dr Broadbent’s performance of the surgery:

1. Dr Broadbent made the patients vulnerable pre-operatively by his nutrition, dietary and exercise regimen. The patients came to major surgery compromised, in a weakened state and with a reduced ability to heal;

2. He exacerbated that vulnerability post-operatively by giving them inappropriate nutritional advice and failing to maintain standard nutritional parameters;

3. He generally refused to request or accept advice from other practitioners.  Even when he did acknowledge that the patient had nutritional deficiencies he did not provide adequate care;

4. He turned a blind eye to obvious symptoms such as fevers and repeatedly blamed the patient for not complying when he should have been investigating the cause of the symptoms.

39. The memorandum also said that Dr Woods was of the opinion that:

• Dr Broadbent failed to increase the protein intake of his patients pre-operatively and post-operatively despite high protein being a fundamental requirement for a healthy immune system and post-operative wellbeing;

• It was inappropriate for Dr Broadbent to feed some patients temporarily via a naso-gastric tube where there are problems with the stomach (the tube should be placed into the small bowel);

• Dr Broadbent’s pre-operative regimen was fundamentally flawed as patients would come into the operation protein and vitamin deficient;

• Dr Broadbent promoted a vegan diet which is just possible to maintain post-operatively if the patient eats enough vegetable proteins.  Dr Broadbent, however, discouraged patients from eating those vegetable proteins;

• Dr Broadbent exhorted his patients to exercise but insisted on a protein deficient diet.  A person cannot exercise and maintain muscle mass unless the patient maintains protein;

• Dr Broadbent provided “seriously misleading” information to his patients on food composition;

• A short-term problem with Dr Broadbent’s conduct was that patients deficient in protein and vitamins would have their recovery hampered and a reduced ability to cope with complications and infection.  The most common short-term risk of the operation is staple line leakage;

• There are several long-term problems that may arise following BPD surgery – BPD surgery deliberately gives the patient malabsorption and as a result, adequate protein is needed otherwise the patient will become malnourished; a serious vitamin A and vitamin D deficiency may lead to reduced bone mass and possible osteoporosis, dysfunction of the immune system, depressive symptoms and increased risk of a variety of cancers. 

40. Dr Woods recognised that despite its inherent risks, the long term results of BPD surgery for obesity are very satisfactory and that there was no reason why patients should not be back at work and living normal lives following appropriate monitoring.

41. Specifically in relation to the applicant, Dr Woods thought that it was more probable than not that the incorrect nutrition and dietary advice of Dr Broadbent had contributed to the applicant’s post-operative complications as he was likely to have been protein and vitamin deficient. The applicant’s lack of protein and vitamins considerably lessened his capacity to recover from a major surgical procedure and exposed him to a greater risk of infection.

42. A further significant flaw in the applicant’s care, as identified by Dr Woods, was his discharge from the hospital with a gastric leak. Despite the applicant’s presenting to Dr Broadbent with obvious symptoms such as dehydration, excessive weight loss, pleural effusion and abdominal pain, Dr Broadbent failed to investigate the cause of his symptoms and took over two months to diagnose and treat the subphrenic collection which resulted from the gastric staple line leak. Dr Woods also opined that throughout this time the applicant was “provided with grossly inadequate nutrition which further compromised his condition” and that overall, he had “suffered long-term septic complications as a consequence of the delay in treatment of his original complication.”

43. According to Dr Woods, if the applicant had been given appropriate advice “he would probably not suffer from the ongoing problems that he has and would probably have been physically fit to return to the workforce not long after the operation.”

44. The memorandum from Dr Woods was supported by a report from a Professor of Surgery experienced in the management of serious intra-abdominal conditions, Professor David Morris, dated 10 March 2009. Professor Morris reviewed the applicant’s medical records and considered the treatment of his post-operative complications. In particular, Professor Morris was of the opinion that Dr Broadbent’s treatment of Mr Hodgson’s post-operative gastric leak and fistula was inadequate and below the standard expected of a surgeon in this country. He described the treatment normally given for such a fistula which was not given in this case. As a result the fistula persisted for a very long time. Dr Morris expressed the view that the applicant would have spent considerably less time in hospital if his gastric fistula had been treated adequately and he would not have had long-term problems from it.

45. With regard to dietary advice, Dr Morris said that it was of great concern that Dr Broadbent recommended protein starvation during the applicant’s pre-operative and post-operative period which was likely to affect healing. Protein levels are predictive of major post-operative complications and protein depletion would certainly be likely to increase the risk of intestinal anastomotic failure as occurred in this case. Dr Morris was also of the opinion that Dr Broadbent on his website seriously misrepresented the suitability of this procedure for all patients and the dietary changes required.

Extension application against the second defendant

46. Because of the concessions made by the first respondent, the applicant will be able to litigate his claim against the first respondent. This has some relevance to his claim against the second respondent.

47. In Broken Hill Pty Co Ltd v Waugh (1988) 14 NSWLR 360 at 372, Clarke JA, with whom Kirby P and Hope JA agreed, held in respect of a case involving the limitation period where there was more than one possible defendant:

“According to well recognised principles where a plaintiff, who has sued multiple defendants one or more of whom may be liable, shows prima facie that at least one defendant may be responsible, the court is bound to hear the whole of the evidence before entertaining submissions by any other defendant that no case has been established against him. This is so even if the plaintiff has not called any evidence demonstrating the fault of the particular defendant.

The rationale of the rule, as explained in Menzies v Australian Iron & Steel (1952) 52 SR (NSW) 6269 WN (NSW) 68, is that if the rule were otherwise the defendant against whom a prima facie case was shown might escape liability by addressing evidence to the effect that the defendant against whom the case had been dismissed was the party who was actually at fault. Indeed that is what occurred in Hummerstone v Leary [1921] 2 KB 664, the case cited in Menzies. Obviously that result would be inimical to the interests of justice.”

48. This passage was cited with approval by Keane JA in Raschke v Suncorp Metway Insurance Limited [2005] 2 Qd R 549 at [28].

49. An applicant who satisfies the elements of s 31(2) of the Act, as the second respondent has conceded the applicant has, is not entitled as of right to an order.  The applicant must still justify the exercise of the court’s discretion in his or her favour.  The principal discretionary ground which might prevent an order being made to allow such an applicant to commence proceedings outside the limitation period is prejudice that will be suffered by a defendant if such an order is made.  The onus remains on the applicant to establish that the discretion should be exercised in his favour. As Keane JA held in HWC v The Corporation of the Synod of the Diocese of Brisbane [2009] QCA 168 at [57]:

“Even where the requirements of s 31(2) have been satisfied, the burden remains on the applicant for relief to show good reason for the favourable exercise of the discretion.  An applicant who is unable to show that a fair trial can take place notwithstanding the delay which has occurred will not discharge that burden.”

50. The leading case on the effect of prejudice on the court’s discretion is Brisbane South Regional Health Authority v Taylor [1996] HCA 25.  Toohey and Gummow JJ explained it at 548-549 as follows:

“A material consideration (the most important consideration in many cases) is whether, by reason of the time that has elapsed, a fair trial is possible. Whether prejudice to the prospective defendant is likely to thwart a fair trial is to be answered by reference to the situation at the time of the application. It is no sufficient answer to a claim of prejudice to say that, in any event, the defendant might have suffered some prejudice if the applicant had not begun proceedings until just before the limitation period had expired.”(footnotes omitted).

McHugh J held at 555:

“If the action had been brought within time, it would have been irrelevant that, by reason of the delay in commencing the action, [the medical practitioner] might have had little independent recollection of his conversation with the applicant and that the defendant might have had difficulty in fairly defending itself.  But once the potential liability of the defendant had ended, its capacity to obtain a fair trial, if an extension of time were granted, was relevant and important. To subject a defendant once again to a potential liability that has expired may often be a lesser evil than to deprive the plaintiff of the right to reinstate the lost action.  This will often be the case where the plaintiff is without fault and no actual prejudice to the defendant is readily apparent.  But the justice of a plaintiff's claim is seldom likely to be strong enough to warrant a court reinstating a right of action against a defendant who, by reason of delay in commencing the action, is unable to fairly defend itself or is otherwise prejudiced in fact and who is not guilty of fraud, deception or concealment in respect of the existence of the action.”

51. To understand the prejudice which the second respondent said it will suffer if an extension order is made against it, it is necessary to consider the evidence sought to be led against it. The applicant led expert evidence by Catherine Sharp, an experienced nurse, to endeavour to prove that the second respondent was in breach of its contract, and failed in its non-delegable duty, to exercise reasonable care and skill in the provision of treatment and advice and that the relevant treatment, advice and surgery provided would be commensurate with that of a competent and skilled medical facility.

52. In a report dated 16 October 2009, Ms Sharp opined that the care provided by the staff of the second respondent fell below a reasonable standard expected of a private hospital in the following ways:

Pre-Operative Care

• By shaving rather than clipping the applicant’s body hair prior to surgery which is said  to have increased the applicant’s risk of surgical site infection;

• By failing to provide the applicant with two antiseptic showers;

• By failing to organise a consultation with a dietician or question the surgeon about input from a dietician;

• By failing to advise the surgeon, anaesthetist or a senior nurse manager that the applicant was hypertensive.

Post-Operative Care

• By failing to notify the surgeon and/or senior nursing staff of the applicant’s being tachycardic, hypertensive and febrile;

• By failing to advise the surgeon and/or senior nursing staff of the applicant’s abnormal blood test results;

• By failing to advise Wound Care / Infection Control nurses of the abnormal level of fluid drained from the applicant’s pigtail drain;

• By failing to advise the surgeon that the applicant should not be discharged with the pigtail drain in situ and without monitoring from a community nurse;

• By failing to ensure that the applicant was being monitored by a dietician post-operatively.

53. The factual basis for Ms Sharp’s opinion is found in her examination of the comprehensive records kept by the hospital, including the applicant’s medical chart which includes detailed and extensive notes made by the nursing staff. She was not specifically cross-examined about her report about the applicant.

54. The solicitors for the second respondent have endeavoured to identify and contact the nursing staff responsible for the care of the applicant in order to obtain statements regarding their recollection of their involvement in the applicant’s care. Those enquiries have identified nurses who have been contacted and some who had not been contacted by the time of the hearing of the extension application.

55. Of the nursing staff involved in his care, the second respondent has been able to contact and interview Rosemary Unicomb, Janette Milton, Gayle Fuller and Judith Bryceson. They have each provided affidavits.

56. Ms Milton cared for the applicant at the hospital for two days during his first admission. She was at that time a registered nurse working as co-ordinator of the Acute Pain Service at the hospital. She was unable to specifically recall the applicant and the care provided to him. Ms Milton was, however, able to explain what the usual practice was with respect to patients at that time. She reported any unexpected pain or nausea to the anaesthetist who would then prescribe a change in medication if a change was necessary. Her evidence was that her notes on the applicant reflected a thorough summary of the treatment provided, the medications dispensed and the nursing care given during the course of her shift. She believed that anything of significance to the treatment and care of the applicant would have been recorded in the notes. When she reviewed the applicant’s chart she cross-referenced everything and did not think anything of significance had been left out.

57. Ms Unicomb was involved in the applicant’s pre-operative preparations at the hospital. Like Ms Milton, she did not have an independent recollection of the applicant but was able to comment on what she was likely to have done in the event she was concerned about a patient. She was an enrolled nurse and so discussed any concerns with the registered nurse with whom she was working. If appropriate, she suggested that the registered nurse raise her concerns with the nurse supervisor on duty. It was not, however, part of her job as enrolled nurse to raise matters with anyone other than the registered nurse. It was not her job to raise matters with a doctor herself. Her evidence was that her notes on the applicant reflected a thorough summary of the treatment provided, the medications dispensed and the nursing care given during the course of her shift. She believed that anything of significance to the treatment and care of the applicant would have been recorded in the notes.

58. The second respondent’s solicitors have also taken affidavits two more senior nurses, Gayle Fuller and Judith Bryceson, each of whom acted as the Nurse Unit Manager at different times when the applicant was at the hospital. Both were able to recall the applicant.

59. Ms Fuller remembered nursing staff raising concerns about the applicant’s care with her and the fact that his condition was not improving. She did not remember specific details but recalled passing on these comments to the Director of Nursing, Christine Samin. She said that generally if nursing staff raised concerns with her about a patient’s condition, for example the patient’s haemoglobin levels, temperature or other aspects of the patient’s care, these matters were recorded in the patient’s chart and Dr Broadbent was notified if they were abnormal.

60. Ms Fuller was able to give evidence as to Dr Broadbent’s requirements for shaving or clipping patients prior to surgery, showering prior to surgery and pre-operative and post-operative care. While she did not specifically remember whether the applicant was shaved or clipped prior to undergoing surgery, she recalled that Dr Broadbent required all patients to be clipped from the nipples to the pubic area prior to surgery. Her evidence was that at this time clippers were used to remove hair from the area. Her oral statement in evidence as to not remembering in what year the change from generally shaving to clipping happened was of little moment for two reasons: first, she has been a nurse since 1969 and there was no suggestion that the change in practice was recent; secondly, Dr Broadbent required all his patients to be clipped. It was standard practice for wardsmen to attend to hair removal for male patients. It appears unlikely then that the second respondent would be disadvantaged in answering this allegation of negligence.

61. Ms Fuller recalled that the applicant was discharged with pigtail drains in place. Her evidence was that, before leaving the hospital, he would have been advised how to manage and care for the drain. She could not recall if this was done specifically in the case of the applicant but said that it “is usual for younger, more able patients to be given instructions on how to manage their drains after leaving hospital.”

62. Ms Bryceson was the Nurse Unit Manager on the ward during the applicant’s last two admissions to the hospital. She worked at the hospital from 1989 to 2007 and was a Nurse Unit Manager between 2003 and 2007. Ms Bryceson was able to give detailed evidence of the nursing regime required by the first respondent including pre-operative and post-operative care. For each patient a pre-operative checklist was completed as well as a comprehensive care-track document for BPD surgery which tracked the patient’s care before and after surgery.

63. Her evidence was that Dr Broadbent had a very strict regime for how he wanted his BPD surgery patients to be nursed, particularly in relation to diet and mobilisation. Dr Broadbent required patients to mobilise as soon as they were awake and stable after surgery. He also had a very strict regime with regard to fluids and diet involving initially ice to suck up to 30mls per hour, graduating to clear fluids at 30mls per hour, graduating to 50mls of fat free pureed diet 3 times a day plus clear fluids at 30mls per hour. He was very clear that his instructions in relation to the patient’s diet were to be followed exactly.

64. Ms Bryceson’s evidence was that prior to going to surgery Dr Broadbent’s patients were to be showered and the operative area shaved or clipped. She did not recall whether this was the case for the applicant but the general practice was that the night before surgery Dr Broadbent’s patients were showered with an antiseptic solution and this was repeated on the morning of their surgery.  Also generally the patient’s hair was removed from their nipples to their pubic area with a pair of clippers.

65. Ms Bryceson said that after surgery Dr Broadbent was very precise and strict about what care was to be provided to his patients. Any concerns that a nurse may have had about a patient’s condition for example vital signs, abnormal pathology results, food intake or low outputs had to be either raised with her and she would contact the doctor, or with the doctor directly. Neither she nor any other nurse was permitted to involve other practitioners in the patient’s care without the approval of Dr Broadbent.

66. Her evidence was that she could specifically recall the applicant on his last two admissions because he was a very sick man who was quite frustrated with his condition. She remembered what he looked like, that he required ongoing treatment, and that he was in the room behind the nursing desk. She did not recall any specific details about his day to day care other than what was recorded in his medical charts. Any concerns a nurse might have about a patient’s condition had to be raised with her to tell the treating doctor or with the doctor directly. She did not recall any conversations with nursing staff about the applicant or any queries or concerns regarding him being raised with her by nursing staff. She agreed in cross-examination that her notes on the applicant reflected a thorough summary of the treatment provided, the medications dispensed and the nursing care given during the course of her shift. Anything of significance to the treatment and care of the applicant would have been recorded in the notes. She would have documented any concerns that she had or that were raised by other staff. She would also have documented it if the nursing staff thought the patient needed some other care or had requested another opinion. She conceded in re-examination, however, that it was possible that something may have been missed.

67. Both Ms Fuller and Ms Bryceson emphasised that Dr Broadbent had strict rules regarding patient care and acted autonomously.

68. The medical chart also showed that a nurse who was involved in the care of the applicant around the time of his admission to the hospital was RN Gardiner. The Director of Nursing at the hospital told the second respondent’s solicitors that the only contact details that the hospital had for nurses with the surname Gardiner were for a Therese and a Rebecca Gardiner. The solicitor spoke to Therese Gardiner and ascertained that she had not nursed any of Dr Broadbent’s patients. She was not able to contact Rebecca Gardiner on the number given. The solicitors for the second respondent requested the Queensland Nursing Council to give them contact details for each nurse with the surname Gardiner or to pass on the solicitors’ contact details to each of them and ask her to contact them. That request was made on 29 March 2010 and no response was received by 30 March 2010. However, the second respondent’s solicitor gave evidence that Nurse Gardiner’s evidence might not be relevant because the evidence she might be able to give is dealt with by other witnesses on behalf of the second respondent.

69. Counsel for the hospital submitted that criticism by Ms Sharp of matters not noted in the chart was difficult to deal with. An example was Ms Sharp’s criticism that the nursing staff failed to notify senior nursing staff and the surgeon that the applicant had a history of high blood pressure before his surgery. This was noted in the patient’s chart at 8pm on 2 March 2003. The nurse making this note could, one would presume, assume that his attending medical practitioner was aware of his medical history and would therefore not regard it as necessary to specifically inform the doctor (or anyone else) other than by recording it in the chart. His blood pressure was noted as elevated the next morning at 6.30am prior to surgery. Ms Unicomb noted “self medicated normal antihypertensive.” He was transferred to the operating theatre 5 minutes later where one would presume the anaesthetist would review his condition including his respiration, pulse and blood pressure. It does not appear that the hospital would be disadvantaged in dealing with an allegation that this omission was negligent.

70. A close examination of the patient chart tends to reveal that the nurses were meticulous in their note taking including recording if Dr Broadbent wished to be contacted about some matter outside his normal rounds. An example of this is found on 6 March 2003 at 9am when Ms Fuller noted in the chart that the applicant had been seen by Dr Broadbent. The chart notes that he was aware of the applicant’s temperature and he was to be notified if it increased. On 8 March 2003, the chart notes at 7.00pm the applicant was seen by Dr Broadbent who was aware of his temperature being 38º. At 10.30pm, the chart notes that he was febrile with a temperature of 38º. It records “Dr aware.”

71. On 9 March 2003, Dr Broadbent saw the applicant at 7.30am. At 9.45am, Ms Sellars noted that Dr Broadbent was contacted with regard to “ecg showing AF & pt feeling poorly”. At 11.00am he was seen by Dr Broadbent who ordered IV fluids. The applicant was seen again by Dr Broadbent at 6.00pm and it was noted in the chart that he was aware of the pathology results. At 1.30am on 11 March 2003, the applicant reported “left sided abdo/chest/shoulder tip pain” and his temperature was recorded at 38.4º. The patient notes recorded that Dr Broadbent was notified of those matters and the advice that he gave. The chart also recorded that the hospital co-ordinator was aware of those matters. When the applicant reported sharp left sided chest pain on inspiration at 3.15pm on that day, the chart shows that Dr Broadbent was notified.

72. There are more notes to similar effect, which tend to show that the patient chart was detailed and comprehensive and reduces the prospect that the nursing staff would have to rely on their actual memory. There are good clinical reasons for this. Patients in hospital are nursed around the clock by different nurses on different shifts and so it is important that all relevant and significant details are recorded. Nurses cannot be expected to retain any detailed recall apart from what is recorded in the patient chart. This explains why it is important that comprehensive notes are kept in the patient chart and no doubt explains why the notes kept in this case appear to be so comprehensive.

73. The second respondent also called evidence, in each of the cases involving this hospital, of its relationship with Dr Broadbent and other records kept by the hospital.

74. Christine Samin was the Director of Nursing at the hospital from 1997 until 2007. She provided evidence on affidavit about the relationship between Dr Broadbent and the hospital and about Dr Broadbent’s medical orders. David Millen, the current Manager of Clinical Services at the hospital, also provided an affidavit in relation to Dr Broadbent’s medical orders.

75. As the Director of Nursing at the hospital, Ms Samin was required to attend meetings of the Medical Advisory Committee, the committee responsible for accrediting specialist medical practitioners, otherwise known as Visiting Medical Officers (VMOs).

76. The first respondent had been accredited as a VMO at the hospital for a number of years prior to Ms Samin’s appointment as Director of Nursing. The first respondent held clinical privileges for general surgery which entitled him to admit patients to the hospital for the purpose of undergoing elective and emergent surgical procedures. Dr Broadbent was not an employee of the hospital and there was no employment contract in existence between the hospital and the first respondent. The hospital did not remunerate him and he invoiced patients directly for his medical services.

77. VMOs at private hospitals operate their own medical practice independent of the hospital. They utilise the hospital facilities and nursing staff for patients who require admission and treatment at a private facility. In order for a patient to be admitted to the hospital, they must be referred for admission by a credentialed VMO.

78. In the case of the first respondent, he had allocated surgical operating time at the hospital and would book patients on his surgical list as required. He would determine the date of their surgery according to his set surgical list and he would then notify patients of the date and time of their admission to the hospital and obtain their consent to undergoing the nominated procedure.

79. The hospital required the first respondent’s patients to sign a generic hospital consent acknowledging that they had engaged the first respondent to undertake the nominated procedure, that they understood that he was “not an employee of the hospital …” and that the hospital had not given the patient “any advice as to the medical treatments/procedures to be undertaken …”. Ms Samin attached a copy of the consent form signed by the applicant on 2 March 2003.

80. Details of the patient bookings would then be faxed by the VMO’s private practice rooms to the hospital. Any emergency procedures that could not be added to the surgical list would be arranged by the first respondent in collaboration with the hospital coordinator and/or the theatre manager.

81. Following the patient’s admission to the hospital, a nursing history was undertaken which detailed the reason for the patient’s admission, his or her medical and surgical history and information relevant to discharge planning. A copy of the applicant’s pre-admission nursing history was exhibited to Ms Samin’s affidavit.

82. Apart from this discussion by nursing staff with the patient pre-operatively, there was no discussion with the patient regarding the medical details of the proposed surgery. That was the sole responsibility of the first respondent. The first respondent had responsibility for the medical decisions made regarding the patient’s management while admitted to the hospital. The hospital did not supervise any of its VMOs in the management of their patients or the performance of surgical procedures undertaken by them.

83. The patient was prepared for surgery in accordance with the orders given by the patient’s admitting VMO. The medical orders detailed the VMO’s instructions for the pre-operative preparation of patients, nurse initiated medications and post-operative instructions.

84. Exhibited to Ms Samin’s affidavit were Dr Broadbent’s medical orders for all procedures from January 2001. Under the heading “Specific Pre-op Preparation”, was the instruction to “shave all operation sites”. Beside the instruction to shave all operation sites was drawn the symbol <. The top line led to a note dealing with the shaving requirements for laparoscopic hernia and the bottom line to a note “See specific instructions for instructions for Bilary Pancreatic Diversion and major Colonic Surgery”. In context, this appears to be a reference to Dr Broadbent’s instructions for shaving for BPD and major colonic surgery. Ms Samin could not recall whether specific medical orders ever existed for BPD surgery and said she understood that the hospital had been unable to locate such orders. Ms Samin said she understood that the hospital had attempted to locate copies of the medical orders in place for the first respondent prior to this time, but had been unable to do so. She was not able to recall whether any medical orders existed prior to January 2001. Any such order would not, in any event, be relevant to the applicant’s surgery which occurred after that date.

85. Mr Millen said that he had caused a search to be undertaken of the archived files of medical orders held by the hospital for visiting medical officers and had been advised that the hospital had been unable to locate any written “specific instructions” from the first respondent in relation to BPD surgery.

86. Ms Samin’s evidence was that on admission to the hospital, the patient was considered to be the sole responsibility of the admitting VMO. If other medical or allied health care providers were required to be involved in the patient’s management, it was at the discretion of the VMO, who must make the appropriate referrals directly to such other doctors who were credentialed at the hospital.

87. The hospital did not employ dieticians whilst Ms Samin held the position of Director of Nursing. If a dietician was required to become involved in the patient’s management, a referral was made by the VMO to a dietician credentialed by the hospital. Dieticians who were credentialed by the hospital operated their own private practice independent of the hospital and were not employed or remunerated by the hospital.

88. The decision to discharge a patient must be made by the admitting VMO. Nursing staff did not have the authority to discharge patients from the hospital. Ms Samin’s evidence was that following discharge, the hospital had no ongoing role in the patient’s care. Her affidavit exhibited the Nursing Discharge Summary relevant to the applicant.

89. The applicant submitted that there is no prejudice to the second respondent: that the failure of nurses to remember the specific details of nursing care is not sufficient prejudice to conclude that a fair trial can no longer be conducted. The second respondent submitted that the court should not exercise its discretion to grant leave to extend the limitation period because of the prejudice occasioned to the hospital which prevented the matter being tried fairly.

90. There is no doubt that litigation provides difficulties if it is conducted after the limitation period is past and yet the legislation provides that the court may extend time. The question is whether the applicant has satisfied me that notwithstanding any prejudice caused by the delay it is possible to have a fair trial. To do so the applicant must displace what McHugh J referred to as the general rule in Brisbane South Regional Health Authority v Taylor at 555, that “actions must be commenced within the limitation period” which “should prevail once the defendant has proved the fact or the real possibility of significant prejudice”.

91. The factors that persuade me that any potential or actual prejudice is not significant, that it is possible to have a fair trial and so to exercise my discretion in favour of extending the limitation period against the second respondent in this case include:

• With the exception of the specific instructions with regard to shaving for BPD surgery, the hospital holds all the relevant general records relating to its relationship with the first respondent;

• More importantly, there are comprehensive records of this patient’s care including the hospital’s consent form, pre-admission nursing history, patient charts and discharge summary;

• The applicant had seven admissions to the hospital;

• Senior nurses remember him because he was so ill;

• The hospital had standard procedures and there is no reason to believe they were deviated from in this case;

• The second defendant has available to it all the nurses relevantly involved in his care;

• The only nurse whose evidence was thought to be relevant who had not been found by the time of the hearing of the extension application was, it was conceded in evidence by the second respondent’s solicitor, probably not necessary;

• As the matter will be proceeding against the first respondent, it is likely that many of the matters relevant to the applicant’s case against the first respondent will be litigated in any event.

Conclusion

92. The applicant has therefore satisfied the court to exercise the discretion to allow him to proceed against the second respondent. The period of limitation for bringing proceedings against the second respondent should be extended to 19 September 2008.

Orders

93. I will order that the time limit for the commencement of proceedings claiming damages for personal injuries by the plaintiff against the first and second defendants be extended to 19 September 2008, pursuant to s 31(2) of the Limitation of Actions Act 1974.  I will hear submissions as to costs.