The key issues
- Whether the respondent had breached his duty of care in failing to remove all hardware from the appellant’s ankle in or around 2010.
- Whether the alleged breach of duty was causative of the appellant’s subsequent ankle infection in 2017.
The background
On 1 May 2010, the appellant sustained a displaced fracture of his right fibula following a motorcycle accident. On 10 May 2010, the respondent performed an open reduction and internal fixation of the fractured fibula, using a plate, screws and other hardware. The surgery was performed on the lateral side of the appellant’s ankle, with only a small needle puncture being made on the medial side in order to ‘capsize’ the anchoring metal disc.
On 30 June 2010, the respondent reviewed the appellant and it was clear that the wound was infected. The respondent performed a surgical washout and took swabs (which later cultured staphylococcus aureus and pseudomonas aeruginosa) and referred the appellant to infectious diseases.
On 4 August 2010, the appellant was re-admitted and the respondent determined that the bone had healed, and a third operation was undertaken to remove the screws and plate from the lateral side of the ankle (which later cultured Corynebacterium jeikeium and staphylococcus capitis). Importantly, the respondent did not make a further incision on the medial side to remove the hardware situated on the medial side of the tibia. The appellant was treated with antibiotics and by November 2010 was free of infection.
In May 2017, the appellant developed an ankle infection (Staphylococcus aureus) and later commenced proceedings in the District Court against the respondent, alleging that his infection was caused by the failure to remove all surgical hardware from his ankle in 2010.
In July 2020 judgment was delivered dismissing the proceedings, with the trial judge finding that whilst the respondent had breached his duty of care, it was not causative of the subsequent infection. On 30 October 2020, the appellant filed an appeal.
The Outcome
The Court of Appeal found that no breach of duty was established on the evidence and the claim should have been dismissed on that basis, noting that:
- the trial judge did not reject the respondent’s evidence and therefore his claim turned on acceptance of expert evidence that the decision not to remove the medial hardware did not reflect competent orthopaedic practice;
- the respondent’s orthopaedic expert considered that by opening the medial side there was a risk of creating a new infection or spreading the existing infection, and the decision to remove only the infected hardware and not any uninfected hardware was consistent with widely accepted practice at the time;
- the respondent’s orthopaedic expert provided more precise and comprehensive reasoning to support his responses to questions than the appellant’s expert whereas the appellant’s orthopaedic expert was dogmatic as to the removal of all hardware and left little room for judgment in the specific circumstances of the case;
- the respondent’s infectious diseases expert fully understood why the hardware was left in place, after a long course of oral antibiotic therapy and when there was no clinical or laboratory evidence of infection from December 2010 until May 2017;
- the appellant’s infectious diseases expert considered that the remaining hardware should have been removed sometime after 4 August 2010 after it was believed the infection had either been eradicated or suppressed by antibiotics (but this was not the pleaded case)
- the evidence of both infectious diseases experts provided no basis for concluding the respondent had, on the pleaded case, breached his duty of care to the appellant in not removing the medial hardware on 4 August 2010.
With respect to causation, the Court of Appeal held that the trial judge’s reasoning was flawed. Whether the foreign material harboured dormant bacteria or attracted a fresh infusion was not the issue. In other words, had there been a breach of duty (by leaving foreign material in the ankle because of the risk of infection), the risk which in fact materialised would probably not have materialised in the absence of the foreign material.
The implications
Whilst the decision to remove only infected hardware (and not any uninfected hardware) was not outside the range of competent professional practice, in this case, it is clear that the decision will involve professional judgment on a spectrum with a risk/benefit analysis on a case-by-case basis.
Additionally, although not pleaded here, it would be prudent for surgeons to consider whether steps should be taken at an appropriate time, when the infection has been successfully treated, to remove any residual hardware.
To read the full case of Old v Miniter [2021] NSWCA 92, click here.
