Unfortunately, the deceased donor was infected with a parasitic roundworm referred to as strongyloides stercoralis, which is endemic in various parts of the world. As a result of the SPK transplant, Mr Meyer too became infected by this condition, becoming the first recorded case in Australia to contract the infection as a recipient of hard organs from an infected donor. The acquired infection was undetected notwithstanding Mr Meyer exhibiting symptoms which in hindsight, were from the infection. He ultimately developed a catastrophic brain injury as a result of septic shock as a consequence of the infection of his blood with the parasite, which breached the blood-fluid barrier in his brain. He now requires 24-hour care, seven days a week. He is significantly disabled, not only physically because of the brain injury but also in terms of his cognition. He suffered a psychosis, which affects him intermittently as a result of his brain damage. He is now under legal incapacity.
The First and Third Defendants were the health authorities responsible for co-ordinating the provision of donor organs for transplant, namely, the South Eastern Sydney Local Health District and the Western Sydney Local Health District responsible for the Westmead Hospital where the SPK transplantation was carried out.
Post operatively, Mr Meyer returned to South Australia for ongoing care with the Second Defendant. At the time of his transfer of care he was already exhibiting active symptoms of the infection. The case against the Second Defendant, the South Adelaide Local Health Network Incorporated, was that it failed to detect the presence of the infection and, had they done so, when a reasonable medical authority in its position ought to, there was sufficient time for medical intervention which in all likelihood would have successfully cured the infection before its catastrophic consequences emerged.
Although screening is carried out for potential infections (both in the donor and the recipient) prior to a transplantation, the guidelines applied by the medical profession in Australia, as at August 2018, did not require screening for strongyloides stercoralis in the donor. While the Australian guidelines did not provide for that type of screening in the donor, it was required in the United States of America and in Europe under their respective guidelines. Evidence was available that, over the period from about 2016 to 2019, a major literature review in relation to the risks incidental to SPK transplantation was being carried out in Australia, the lead researcher being Dr Susan White. The evidence also indicated that, notwithstanding the Australian guidelines, persons in positions of seniority in the First and Third Respondents’ therapeutic operations were made aware of the position in the USA and Europe and were aware of the outcome of Dr White’s research (at least in draft form), that proper therapeutic care required screening for strongyloides stercoralis in Australia. That requirement was adopted as part of the new guidelines issued in 2019.
The case gave rise to a number of liability issues, particularly having regard to the provisions of section 5O of the Civil Liability Act 2002 (NSW) and section 41 of the Civil Liability Act 1936 (SA), which provide that a Defendant will not be liable if it is established that they acted in a manner that (at the time the service was provided) was widely accepted in Australia by peer professional opinion as competent professional practice.
There were also significant issues around the assessment of damages related largely to the question of Mr Meyer’s likely life expectancy.
Ultimately, the parties reached a negotiated settlement which was proposed for the Court’s approval.
In considering whether to approve the negotiated settlement, Campbell J considered the contents of a confidential advice prepared by two experienced counsel and whether the proposal was in Mr Meyer’s best interests.
Campbell J noted the following at [13]:
“It is in the public interest that the parties to litigation reach an out of court settlement. The question for me is, is it in Mr Meyer’s interest that I approve this settlement? It seems to be that what is proposed is a proper compromise of the litigation, having regard to the nature of the issues…. It is also not insignificant for me to observe that there is an undoubted advantage in the accelerated receipt of the proceeds of a settlement which is in Mr Meyer’s interests. Litigation of this type is complex; it is attended by uncertainty of outcome; and assuming that Mr Meyer is successful at first instance, the prospect of an appeal cannot be gainsaid.
In light of the above reasons, Campbell J considered the compromise to be a fair one, approved the settlement, and appointed a Trustee to Mr Meyer’s estate.
To read the decision in Meyer by his Tutor Lara Meyer v Western Sydney Local Health District [2003] NSWSC 403, click here.
