Battery and negligence – Incisional hernia repair

by | Jul 30, 2017 | Health Blog

The Supreme Court New South Wales has awarded damages of over $1 million to a plaintiff for personal injuries suffered by her as a result of complications of an incisional hernia repair.

The operation was performed by a surgical registrar under the supervision of a specialist general surgeon. Post-operatively, the plaintiff developed a severe infection associated with the placement of surgical mesh over the region of the hernia dissection. The plaintiff re-presented to the hospital on two further occasions after the operation.

The plaintiff’s primary case was in battery alleging that she did not consent to a surgical registrar performing the operation – that is, she was mistaken as to the identity of the person who would undertake the operation. After discussing the legal principles, the Court noted that the essential issue was about consent to the nature and quality of the act, not about the identity of the person performing the operation. It held [at 28] that “an omission to obtain [the plaintiff’s] express consent to the involvement of a doctor other than [the surgeon was not] a mistake on her part as to the nature and quality of the surgery to be performed”. In any event, on the evidence, the Court found that the surgeon had directed the registrar fairly closely as to what he was expected to do and took an active part in the procedures himself. It was satisfied that the operation was not done by the registrar rather than the surgeon. The reality was that the operation was performed by both doctors. Moreover, the consent form that the plaintiff signed had clearly stated that the operation may be performed by another doctor.

The plaintiff also argued an alternative case that the surgeon and registrar were negligent in failing to take precautions against the risk of infection, namely the use of negative pressure surgical drains.  The Court heard expert evidence from five consultant surgeons and one specialist in infectious diseases and microbiology. The Court found that there was wide acceptance that a drain should be used, particularly in light of factors personal to the plaintiff which enhanced the known risk of post-surgical infection, including her smoking and obesity. In the circumstances, a reasonable surgeon would have taken that precaution.

The plaintiff also proved a breach of duty that by her third presentation to hospital, infection should have been diagnosed and the surgical mesh removed.

The Court was also satisfied that that the relevant acts of breach were causative of the plaintiff’s alleged injuries.

To read the decision in Tinnock v Murrumbidgee Local Health District (No 6) [2017] NSWSC 1003, click here.

Enore Panetta

Enore Panetta