O'Donnell v Broadbent[2010] QSC 428

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 Brenda O'Donnell filed a claim for damages alleging that injuries that arose following her undergoing surgery were caused or contributed to by the negligence and breach of contract of the first defendant, Dr Russell Broadbent, and the second defendant, the Allamanda Private Hospital (“the hospital”).

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 she underwent surgery on 14 October 2002 and so the period under s 11(1) of the Act expired on 14 October 2005.  Leave was given to commence proceedings on condition that the applicant bring an application pursuant to s 31 of the Act.  Some relaxation of the statutory prohibition against commencing an action after the statutory limitation period is found in s 31 of the Act.

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

13. The application is opposed by the second defendant 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 defendant that it has suffered prejudice. If that question is answered in the affirmative, the applicant will succeed against the second defendant in this extension application. If the question is answered in the negative, then the extension application against the second defendant 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 prior to and post admission.

16. The applicant, who was born on 8 May 1947, underwent bilio-pancreatic diversion (BPD) surgery conducted by the first respondent, Dr Broadbent, at the second respondent hospital on 14 October 2002. She was 55 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’s previous medical history included depression/anxiety, hyperlipidemia, hypertension and type 2 diabetes. Prior to undergoing BPD surgery, the applicant had been overweight for some time. In an affidavit sworn 25 March 2009, the applicant said that she had been overweight as a child but her weight had increased following her need to take insulin for diabetes from about 1996. Following her involvement in a motor vehicle accident in 1995 she suffered post-traumatic stress disorder, musculoskeletal injuries and chronic pain which contributed to her gaining weight.

19. The applicant underwent a gastric lap band operation in October 2001 performed by Dr Peter Nottle at the Western Private Hospital in Melbourne and although it was successful, she panicked when she began to regain some weight following that operation.  This caused the applicant to research other weight loss surgery options on the internet and it was there that she found out about the first respondent.

20. The applicant flew to the Gold Coast from her home in Werribee, Victoria, to meet with the first respondent.  Her first consultation with him was on 6 September 2002 and at this time she weighed approximately 84 kilograms.  At the consultation the applicant explained to Dr Broadbent her history of being overweight and discussed how she found her gastric lap band to be very restrictive.  The applicant also told Dr Broadbent that she wanted to be healthy as her husband had been diagnosed with prostate cancer and she wanted to get herself as fit as possible in case she needed to care for him.

21. Dr Broadbent told the applicant that he no longer performed lap band surgery and recommended the removal of her lap band. He suggested that the applicant undergo the “Rolls Royce” of treatments, BPD surgery and described it as the most powerful operation available for obesity. Dr Broadbent diagnosed the applicant with a fat storage disease and said that she would not be able to lose weight without surgical intervention.

22. The applicant consulted Dr Broadbent several more times during September and early October 2002 about undergoing a possible conversion from her gastric lap band to a BPD. Following each consultation, described as an “indoctrination and education session” by Dr Broadbent, Dr Broadbent wrote to the applicant’s general practitioner, Dr Fusca, at the Princes Highway Medical Centre in Werribee, Victoria, to provide an update on the applicant’s progress.  In a letter to Dr Fusca following the applicant’s initial consultation on 6 September 2002, Dr Broadbent described the applicant as having a “genetically programmed” and “relentlessly progressive” fat storage disease and said that he introduced the applicant to necessary lifestyle changes to assist her in losing weight prior to undergoing BPD surgery.

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 that she had to complete six counselling sessions with Ms Quist and receive a certificate in respect of this before she would be able to undergo BPD surgery. Dr Broadbent also placed the applicant on a six week programme which required her to walk faster and further each day and eat a fat-free vegetarian diet.

24. In the lead up to the surgery the applicant was led to believe by both Dr Broadbent and Ms Quist that non-compliance with the aftercare regime was the primary reason why people encountered problems post- BPD surgery. She was also led to believe that to be considered for the surgery, she had to be compliant with Dr Broadbent’s rigorous diet and exercise regime.

25. Just prior to the surgery on 7 October 2002 the applicant signed a consent form, acknowledging that the operation depended on “patient compliance”. By signing the consent form, the applicant agreed that post-operatively she would eat a restricted diet consisting of 3 x 50ml fat-free meals per day until ideal weight was reached, after which 3 x 100ml reduced-fat meals were allowed. She also agreed to carry out the exercise programme exactly as requested by Dr Broadbent and recognised that the likelihood of success of the surgery was good provided that she complied and continued to comply with all of Dr Broadbent’s instructions.

26. The applicant was admitted to the hospital on 13 October 2002 and underwent a gastric band reversal and the BPD surgery together with a gastrectomy, duodenal switch, cholecystectomy and appendectomy on 14 October 2002. She weighed 82 kilograms at the time of the surgery.

27. Post-operatively, the applicant started vomiting. She became very worried by this as she had been told by Dr Broadbent and Ms Quist that it was essential that she did not vomit after the operation. The applicant was concerned as her vomit looked like blood. She felt like she was dying. The applicant was given an injection to stop the vomiting and intravenous fluids, small quantities of ice to suck as well as some pureed fruits and vegetables. She was discharged on 20 October 2002.

28. In the period immediately after the surgery, the applicant stayed on the Gold Coast for ten days. She continued to adhere to the fat-free diet and recommenced exercise. She also attended two follow-up consultations with the first respondent. In a letter to Dr Fusca dated 25 October 2002 Dr Broadbent described the applicant as having no complications post-surgery and “progressing well.” A further letter to Dr Fusca dated 7 November 2002 following the second consultation was in a similar vein and noted that the applicant was “very please [sic] with the status at the moment.” The applicant returned home to Victoria in early November 2002.

29. In December 2002 the plaintiff experienced severe chest pain and presented to the Mercy Hospital Emergency Department before being admitted to the Epworth Hospital in Victoria.  She was diagnosed with myocarditis.  The applicant consulted with the first respondent on 15 January 2003 and advised him of her condition.  Dr Broadbent told her that because her condition had rendered her unable to exercise, her BPD surgery was not as successful as it should have been and that she was now in a form of starvation.  Dr Broadbent advised the applicant that she needed to eat carbohydrates and exercise as much as possible in order to get better.

30. Because of the myocarditis, the applicant became almost bedridden and was unable to keep food down. She also lost weight very rapidly. She was told by Ms Quist to follow the first respondent’s advice and consequently the applicant attempted to exercise at home after being told by a personal trainer at a gym that she was not fit to do any exercise at all.

31. Some time in early 2003 the applicant sought treatment from two specialists in Melbourne, Dr Moore and Dr Jamieson, who advised her to eat protein and prescribed a pancreatic enzyme known as Pancrease. She informed Dr Broadbent of her treatment and was told by him that she needed to consult with him, stop taking Pancrease and remain focussed on her real problem of morbid obesity.

32. Later in March 2003 Dr Broadbent advised the applicant that she had an irrational fear of losing too much weight. The applicant said that during this time she was starving, ill and worried about her rapid weight loss. Ultimately she did not follow Dr Broadbent’s advice against taking Pancrease.

33. By late March 2003 the applicant weighed only 50kg despite being 165cm tall. Her nails and hair were falling out, her teeth were decaying and she was suffering from diarrhoea and severe anxiety. The applicant also admitted to considering suicide on more than one occasion.

34. The applicant consulted with Dr Broadbent on 14 August 2003 and a gastroscopy was performed which showed she had reflux and reflux oesophagitis. In a telephone conversation with Dr Broadbent on 23 August 2003, he advised her to eat smaller meals.

35. The applicant continued being treated by Dr Jamieson and following Dr Jamieson’s retirement, was treated by Dr Moore from about August 2005 onwards. By August 2005 she was bedridden and often blacked out. She was also prone to falls and vomiting and was desperate to gain weight.

36. The applicant was concerned that she would die of malnutrition and, despite being told by Dr Moore that she was not fit for surgery, elected to undergo a partial reversal of the BPD operation. This was performed at the Freemasons Hospital on 13 September 2005.  The applicant developed severe complications following the reversal surgery and was admitted to the Intensive Care Unit where she was placed on life support.  She also developed pneumonia during this time and a blood clot requiring surgical care.  She was discharged from the Freemasons Hospital on 22 December 2005.

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

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

• She 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 her post-surgery or provide her with an appropriate nutrition plan so as to prevent her from developing malnutrition and other complications following the BPD surgery;

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

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

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

39. 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.

40. 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. 

41. 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.

42. 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 she was likely to be protein and vitamin deficient. The applicant’s lack of protein and vitamins considerably lessened her capacity to recover from a major surgical procedure and exposed her to a greater risk of infection. Dr Woods also noted that although myocarditis can occur in fit patients it is known that malnutrition increases a person’s susceptibility to the condition.

43. According to Dr Woods, “it is unlikely that she [Ms O'Donnell] would have suffered complications from the reversal of the BPD procedure had she not been suffering from severe malnourishment after the BPD. She is lucky to have survived.” Dr Woods also emphasised that in relation to BPD surgery, it is incumbent on the treating surgeon to be aware of possible complications. In particular, if a patient is not improving it is vital that timely and thorough investigations are undertaken to establish the cause and rectify it where possible.

Extension application against the second defendant

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

45. 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.”

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

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

48. 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.”

49. 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.

50. 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 - this was said to increase 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.

Post-Operative Care

• By failing to advise the surgeon and/or senior nursing staff that the applicant was febrile from post-operative day 3 until and including the day of discharge;

• By failing to advise senior nursing management of the surgeon’s plan to release the applicant despite her high temperature and low haemoglobin levels;

• By failing to advise the surgeon that the applicant was not fit enough for discharge;

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

51. 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.

52. 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.

53. The second respondent has obtained affidavits from Christine Carter and Gayle Fuller with regard to the applicant.

54. Ms Carter has been a level 2 registered nurse since 1998. She recognised her signature on some of the entries on the applicant’s chart including at the time of her discharge so believed that she must have had some involvement in her care. She had no independent recollection of the plaintiff. She did not remember whether she, or anyone else, had any concerns about her care. She said that if she had been concerned about the applicant, she would have raised her concerns with Dr Broadbent initially and if not satisfied with his response, would have spoken to the Nurse Unit Manager or the hospital co-ordinator if the Nurse Unit Manager was not available. She would have recorded that in the applicant’s chart. She said that the usual practice on discharge was for Dr Broadbent to discharge the patient with relevant advice about wound management and diet. Her evidence on cross-examination was that her notes on the applicant reflected a thorough summary of the treatment provided, the medications dispensed and the nursing care given during the course of her shift. Anything of significance to the treatment and care of the applicant would have been recorded in the notes. However, she agreed in re-examination that if something was omitted from the notes she would not be able to recollect that at this distance.

55. Ms Fuller was the Nurse Unit Manager during the applicant’s first admission to the hospital. She did not remember anything about the applicant or her care whilst in the hospital and did not recall whether nursing staff raised any concerns or queries about the applicant’s care. Ms Fuller’s evidence was that generally if nursing staff raised concerns with her about a patient’s condition, for example the patient’s haemoglobin levels, temperature or other aspects of the patient’s care, this would have been recorded in the patient’s chart. If the results were abnormal, Dr Broadbent would have been notified. Her usual practice was to have a conversation with the Director of Nursing about any adverse outcomes. She said that in some cases incident reports were kept.

56. 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 said that Dr Broadbent required all patients to be clipped from the nipples to the pubic area prior to surgery. Her evidence was that at this time clippers were used to remove hair from the area. Her oral statement in evidence as to not remembering in what year the change from generally shaving to clipping happened is of little moment for two reasons: first, she has been a nurse since 1969 and there was no suggestion that the change in practice was recent; secondly, Dr Broadbent required all his patients to be clipped. It appears unlikely then that the second respondent would be disadvantaged in answering this allegation of negligence.

57. Ms Fuller said that the first respondent was autonomous in his care and did not want any other practitioners involved with his patients. She said any suggestion that another practitioner or allied health professional, such as a dietician, should become involved would be dismissed. She did not always regard this as appropriate.

58. The medical chart also showed that nurses who were involved in the care of the applicant around the time of her admission to the hospital were another nurse with the surname Carter and RN Roberts. The second respondent does not hold any contact details for them as it appears they were agency nurses. The solicitors for the second respondent requested the Queensland Nursing Council for their contact details or that they pass on the solicitors’ contact details to them and ask them to contact them. That request was made on 29 March 2010 and no response was received by 30 March 2010 The solicitors have not yet asked the second respondent for the name of the agency that they used nor contacted the agency for whom they worked.

59. Counsel for the hospital submitted that criticism by Ms Sharp of matters not noted in the chart were 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 high temperature and low haemoglobin. As a matter of course those observations were recorded in the patient’s chart. The chart also showed that nurses made particular note when they specifically drew the attention of Dr Broadbent to something that might not otherwise be obvious from the chart. For example, at 5pm on 15 October 2002 (the day after her surgery) when she was seen by Dr Broadbent, it was noted in her chart that “Doctor aware of nil aspiration from N/G tube.” It appears tolerably clear from the chart that Dr Broadbent was not notified unless the matter was considered significant. For example at 8pm on 15 October, the chart recorded “some nausea at times but not troublesome.” Unsurprisingly, there was no note to suggest the doctor was notified.

60. Dr Broadbent’s orders were recorded. For example on 16 October 2002, when the applicant was seen by Dr Broadbent at 7.20am, the chart recorded, inter alia, “nil insulin requested due to Dr’s oral orders.”  Later that day another note was made at 6.50pm that she was suffering from persistent intermittent bouts of nausea and treated as per “APS referral”.  That observation, noted in the chart, was not long before a visit by Dr Broadbent at 7.30pm.  Her unsettled state during the night was recorded and she was given medication to help her sleep, “much reassurance” and then seen again by Dr Broadbent at 7am the next morning.

61. On 17 October 2002, three days after surgery, when the applicant was seen by the first respondent at 8.30pm, the nursing staff noted in the chart. “Aware of Temp 37.8º.” No note appeared of any treatment for that slightly raised temperature. The next morning when Dr Broadbent saw the patient again the note made was “NFO”. A further note was made at 10pm on 18 October of her temperature being 37.6º. Her temperature continued to be monitored and recorded in the chart and further mention was made of the doctor being made aware of her temperature rising and her pulse increasing at 5.00am on 20 October 2002. The notes recorded that he would review her later that day. A further note was made of her temperature at 12 noon when it had come down to 37.6º. The chart recorded that Dr Broadbent saw her at 7.50pm and discharged her home.

62. A close examination of the patient chart tends to reveal that the nurses were meticulous in their note taking including recording if Dr Broadbent was specifically informed of some observation. These notes 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.

63. 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.

64. 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.

65. 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).

66. 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.

67. 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.

68. 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.

69. 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 13 December 2002.

70. 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.

71. 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.

72. 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.

73. 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.

74. 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.

75. 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.

76. 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.

77. 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.

78. 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.

79. 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.

80. 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”.

81. 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 on the two occasions when she was admitted including the hospital’s consent form, pre-admission nursing history, patient charts on her two admissions and discharge summary.  When the patient charts are examined they appear to show that all relevant matters are likely to be in the chart: this is particularly significant in this case where those nurses who have given evidence have no specific recall of the applicant;

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

• 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

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

Orders

83. 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.