The Plaintiff presented to the Campbelltown Hospital ED on 21 August 2015 with a non-functioning colostomy and abdominal pain, having undergone a Hartmann’s procedure for perforated sigmoid diverticular abscess in October 2014. The Plaintiff was admitted, found to have a small bowel obstruction, initially managed conservatively and then proceeded to surgery. The Plaintiff was ultimately discharged on 7 September 2015.
The Plaintiff alleged three particulars of negligence against the Health District, namely:
- Serving, or allowing to be served to the Plaintiff, food that was incompatible to his food diet plan (by non-professional catering staff).
- Failure to refer, immediately upon complaint, the Plaintiff’s symptoms of nausea, vomiting and abdominal pain to a doctor for examination (by nursing staff);
- Unacceptable delay in diagnosis and treatment of a dehisced wound (by nursing staff).
He claimed that, as a result of the alleged negligence, he suffered loss and harm by way of a large incisional hernia, weakness of his abdominal muscles, and the loss of opportunity for reversal of the Hartmann’s procedure.
The Plaintiff failed to make out any of the particulars of negligence:
- the Court largely relied on uncontradicted evidence from the Director of Nutrition and Dietetics that there was a system in place for the Plaintiff to receive the correct diet and with a hospital record of him receiving that diet on that day;
- the Court accepted that the clinical notes accurately recorded the Plaintiff’s complaints during the relevant period and accepted he was well managed with pain relief and antiemetic medication, and calling the RMO at 5am on 30 October 2015 was consistent with a reasonable standard of care; and
- there was no evidence before the Court to suggest there was a reason for the nurses to call an RMO at any time before 5am, the RMO did not note any dehiscence, and the expert evidence did not suggest there was a material or any delay in diagnosis and treatment of his wound by the nursing team during the relevant period.
The Plaintiff also failed on causation, with the Court making some helpful observations with respect to our counterparts to sections 5PB and 5P pf the Civil Liability Act 2002 (WA). Throughout the course of the proceeding, the Health District conceded that its ‘defence’ pursuant to section 5O (similar to our section 5PB) could not be maintained with respect to Particular 1 as the person who provided the food was not a person practising a ‘profession’. The Court then considered it could not be maintained with respect to Particulars 2 and 3 as there was no evidence from a nursing peer establishing competent professional practice.
The Court held that, with respect to the materialisation of an inherent risk, “the defence or “safe harbour” pursuant to section 5I (our section 5P) is made out. In the present case, the inherent risks of infection and incisional hernia were likely to materialise given the multiple factors that made the Plaintiff more prone to infection and incisional hernia, such that in my view the identified risks of harm could not have been avoided by reasonable care and skill”.
In the event of any error with respect to liability, his Honour assessed damages at $361,597.00.
The full decision in Hawkins v South Western Sydney Local Health District [2020] NSWDC 308 can be read here.
