On 11 August 2014, the Plaintiff underwent an abdominoplasty (tummy tuck) and subsequently required subcutaneous injections of heparin twice daily. The first heparin injection was administered by a female nurse who “pinched” the Plaintiff’s left thigh and administered the injection beneath the skin with no pain and no complications.

The second heparin injection was administered by a male nurse later that same day. The Plaintiff’s evidence, and her husband’s evidence, was that the male nurse came into the room and administered the injection straight into her thigh without pinching her skin. She reported instant pain and her husband commented in front to the nurse “that it was a bit vigorous”. The Plaintiff developed a haematoma and paraesthesia in the femoral cutaneous nerve in her lateral left thigh.

The nurse had no actual recollection of the injection but gave evidence of his significant experience with various injections, including subcutaneous injections, and had therefore adopted an invariable practice. He described that for a subcutaneous injection, he invariably gathered as much subcutaneous tissue as possible and inserted the needle at a 45 degree angle and injected slowly for about 30 seconds.

The Court accepted the Plaintiff’s evidence, noting that the male nurse could only assert what he believed would have been done by reference to his invariable practice. Crowe AJ noted that “ordinary human experience suggests there can always be momentary lapses or careless errors in the performance of mundane or routine tasks” and that although the male nurse presented as an earnest and hardworking nurse “he had a busy workload and I infer that he was probably under time pressure to complete his tasks before the end of his shift at 22:00”.

Crowe AJ accepted medical evidence that the Plaintiff’s nerve damage was consistent with a traumatic injury of her left lateral cutaneous nerve of the thigh related either directly to the subcutaneous heparin injection (into the deeper rather than superficial subcutaneous fat) or to the associated subcutaneous haematoma induced by the heparin injection. Due to her permanent impairment, the Plaintiff was awarded $249,706.66 in damages.

Kempster v Healthscope Operations Pty Ltd [2019] ACTSC 248