Facts
On 22 July 2013, the Plaintiff underwent a surgical procedure performed by the Defendant to manage her morbid obesity.
Following the operation, the Plaintiff suffered from a gastric leak, necessitating her return to the operating room for a laparoscopic washout and the placement of a peritoneal drain. Over the ensuing 5 years, the Plaintiff faced a challenging and intricate post-operative journey, marked by recurring sepsis and malnutrition, which resulted in multiple hospital admissions and various surgical interventions.
The Plaintiff’s primary case was that given her comorbidities of long-term alcohol abuse and liver dysfunction, she should have been counselled and the elective non-urgent surgery delayed. The Plaintiff alleged that the Defendant did not properly warn her of the risks and if he had, she would not have gone ahead with the procedure.
The Plaintiff’s alternative case was that the Defendant’s technical performance of the operation and initial management was negligent, and that negligence caused or materially contributed to a gastric leak at the site of the surgery, causing ongoing illness and the need for further surgeries.
The Defendant claimed that his treatment was not negligent and that he took appropriate steps to address the risk of harm in accordance with section 5B of the Civil Liability Act (2002) NSW (“CLA”). He also claimed that he did not incur a liability in negligence arising from his professional services as he acted in a manner that was widely accepted in Australia by peer professional opinion as competent practice in accordance with section 5O of the CLA and established by expert-evidence led at trial.
Additionally, the Defendant claimed that the Plaintiff’s complications were consistent with the inherent risks of the procedure and that section 5I of the CLA provided additional protection from liability. He claimed that the risks were explained to her and that causation had not been established.
Issues
- Was the pre-surgery advice adequate in warning the Plaintiff of the risks associated with the surgery?
- Did the Defendant act in a manner that at the time the services were provided, was widely accepted in Australia by peer professional opinion as competent professional practice?
Findings
The Plaintiff’s allegations that the Defendant did not have appropriate regard for her alcohol intake prior to her surgery were not accepted by the court and her evidence on this point was considered unreliable. The court noted that the Plaintiff gave differing accounts of her alcohol intake to her healthcare providers, including to the Defendant, the Bariatric nurse and dietician, and in her evidence at trial.
It was found the Defendant had discussed the risk of gastric leak following the surgery and that the Plaintiff’s determination to undergo the surgery made her unreceptive to any information regarding warnings or complications.
In respect to whether section 5I, which operates to exclude liability for the inherent risk of surgery, it was established that the anticipated complications which arose were inherent risks of the surgery and were not created by the Defendant. It was also found that the Plaintiff was adequately warned of the risks of surgery.
It was concluded that the Defendant acted in a manner that was widely accepted in Australia by peer professional opinion as competent professional practice, and thus the section 5O defence was successful. This conclusion was supported by evidence of two bariatric surgeons and by the experience and expertise of two gastroenterologists.
The court ruled that the Defendant acted in accordance with accepted professional standards, had provided appropriate warnings, and that the Plaintiff’s case failed on multiple grounds, including the lack of reliable evidence and failure to prove causation.
Comment
The Defendant in this case was successful in defending the matter not only because of the expert evidence presented, but also because he was able to produce detailed records of the various discussions with the Plaintiff which recorded the information provided by her and also the information given to her about the surgery. The court accepted that the Defendant’s records where made contemporaneously and accurately recorded the information provided. As a result, the Plaintiff’s evidence was found to be unreliable.
Whilst running a busy practice can often mean that clinical notes or records of consultations are often not as detailed as one may like, taking the extra time to accurately record discussions with patients in as much detail as possible can save practitioners significant time and stress if legal proceedings are subsequently commenced.
