In 2005 the plaintiff was diagnosed with a benign brain tumour. Surgery to remove the tumour in 2006 led to 90% of the tumour being removed. Further surgery undertaken in September 2007, which all experts described as complex, was unable to be completed due to damage to the carotid artery occurring. This damage was repaired and the Plaintiff was transferred to Royal Perth Hospital (RPH) for ongoing care. Three weeks after the second surgery the Plaintiff developed bacterial meningitis.

The Plaintiff, by his next friend, alleged that his surgeon, who was deceased at the time of trial, failed to warn or advise him in a timely way to seek emergency attention for symptoms of meningitis. It was also alleged that RPH, being the hospital where the plaintiff ultimately sought help, failed to exercise proper care in diagnosing and treating the plaintiff's meningitis. It was alleged that, but for the delay in treatment, the plaintiff would not have suffered the irreversible consequences of that illness, being severe brain injury. 

The Plaintiff’s case against the surgeon rested primarily on the content of a telephone conversation between the Plaintiff and the surgeon on the evening prior to his presentation to the emergency department. However as neither the Plaintiff nor the surgeon could give evidence about what was said, the Plaintiff was unsuccessful in establishing breach of duty on the part of the surgeon.

In relation to the Plaintiff’s presentation to RPH, the Court found that there was delay by the hospital staff in diagnosing and treating the bacterial meningitis. The Plaintiff presented the ED Department of the hospital a little before 10am and was appropriately triaged. Following initial assessment, it was thought that he may have a sub-arachnoid haemorrhage or bacterial meningitis. Following review by the ED Consultant at around 12 MD it was thought that bacterial meningitis was more likely. However, a lumbar puncture, which ultimately revealed turbid CSF, was not performed until 3pm and antibiotics were not commenced until 5.30pm.

The trial judge was critical of the hospital for not putting forward any explanation for the delays which occurred whilst still asserting that such delay was within competent professional practice widely accepted by health professional peers for the purposes of s.5PB of the Civil Liability Act. The Court found that that based on the Therapeutic Guidelines for the treatment of bacterial meningitis, the failure to commence intravenous antibiotics and corticosteroids by no later than 12.30 pm breached the duty of care owed by the hospital to the Plaintiff.

In addressing causation, expert evidence was to the effect that the plaintiff would probably not have suffered any serious harm if he had received appropriate treatment for bacterial meningitis prior to 1.00 pm. One expert was prepared to extend this time to say that harm would probably have been avoided with appropriate treatment prior to 3.30 pm. However, antibiotics had not been commenced until 5.30pm and corticosteroids at 8.50pm.

Damages in excess of $8M were awarded.

To read the full decision in PANAGOULIAS (by his next friend FIONA AVERIL PANAGOULIAS) -v- THE EAST METROPOLITAN HEALTH SERVICE [No 4] [2017] WADC 118, click here.