Caroline Shaw v Broadbent & Anor [2010] QSC 433
SUPREME COURT OF QUEENSLAND
CITATION: Caroline Shaw v Broadbent & Anor [2010] QSC 433
PARTIES: SHAW, Caroline
(applicant/plaintiff)
v
BROADBENT, Michael Russell Mark
(first respondent/first defendant)
AND
AUSTRALIAN HOSPITAL CARE (PINDARA) PTY
LTD trading as PINDARA PRIVATE HOSPITAL
ABN 5700 5289 095
(second respondent/second defendant)
FILE NO/S: BS 10380 of 2008
DIVISION: Trial Division
PROCEEDING: Application
ORIGINATING
COURT: Supreme Court at Brisbane
DELIVERED ON: 18 November 2010
DELIVERED AT: Brisbane
HEARING DATE: 6 - 9 April 2010
JUDGE: Atkinson J
ORDER: That the time limit for the commencement of proceedings
claiming damages for personal injuries by the plaintiff
against the first and second defendants be extended to 15
October 2008, pursuant to s 31(2) of the Limitation of
Actions Act 1974.
CATCHWORDS: LIMITATION OF ACTIONS – EXTENSION OR
POSTPONEMENT OF LIMITATION PERIODS –
EXTENSION OF PERIOD – EXTENSION OF TIME IN
PERSONAL INJURIES MATTERS – KNOWLEDGE OF
MATERIAL FACTS OF A DECISIVE CHARACTER –
GENERALLY – where applicant claims that she suffered
injuries following surgery performed on her by the first
respondent at the second respondent hospital – where
applicant commenced proceedings beyond the limitation
period – where applicant applies to extend the limitation
period for the commencement of proceedings – where
application is opposed by the first respondent on the basis
that the applicant’s material fact of a decisive character
relating to her right of action was within her knowledge or
means of knowledge more than one year prior to her
commencement of proceedings – where application is
opposed by the second respondent on the basis that the
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applicant is unable to establish a right of action – where
application is further opposed by the second respondent on
the basis of prejudice – whether the limitation period should
be extended
Limitations of Actions Act 1974 (Qld), s 11, s 30, s 31
Brisbane South Regional Health Authority v Taylor [1996]
HCA 25; 186 CLR 541, applied
Broken Hill Pty Co Ltd v Waugh (1988) 14 NSWLR 360,
cited
Carlowe v Frigmobile P/L [1999] QCA 527, cited
Carter v Corporation of the Sisters of Mercy of the Diocese
of Rockhampton & Ors [2001] QCA 335, cited
Dick v University of Queensland [1999] QCA 474; [2000] 2
Qd R 476, applied
HWC v The Corporation of the Synod of the Diocese of
Brisbane [2009] QCA 168, cited
NF v State of Queensland [2005] QCA 110, applied
Queensland v Stephenson [2006] HCA 20; 226 CLR 197,
applied
Raschke v Suncorp Metway Insurance Limited [2005] QCA
161; [2005] 2 Qd R 549, cited
Wood v Glaxo Australia Pty Ltd [1994] 2 Qd R 431, cited
COUNSEL: G R Mullins for the applicant
G W Diehm SC, with A Luchich, for the first respondent
J H Dalton SC, with J E FitzGerald, for the second
respondent
SOLICITORS: Maurice Blackburn Lawyers for the applicant
Flower & Hart Lawyers for the first respondent
Minter Ellison for the second respondent
[1] This is an application made pursuant to s 31(2) of the Limitations of Actions Act 1974
(Qld) (“the Act”) to extend the time within which to institute proceedings for
personal injuries to 15 October 2008.
[2] On 15 October 2008 Caroline Shaw filed a claim for damages alleging that injuries
that arose following her undergoing surgery were caused or contributed to by the
negligence and breach of contract of the first defendant, Dr Russell Broadbent, and
the second defendant, Australian Hospital Care (Pindara) Pty Limited trading as
Pindara Private Hospital (“the hospital”).
[3] However, s 11(1) of the Act precludes the bringing of an action for damages for
personal injury due to negligence after the expiration of three years from the date on
which the cause of action arose. The cause of action first arose when the applicant
underwent surgery on 7 September 2005 and so the period under s 11(1) of the Act
expired on 7 September 2008, slightly more than a month before she commenced
proceedings. Leave was given to commence proceedings on condition that the
applicant bring an application pursuant to s 31 of the Act. Some relaxation of the
statutory prohibition against commencing an action after the statutory limitation
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period is found in s 31 of the Act. Not all of her action is affected by s 11 of the Act;
however, it does affect that part of her action which relates to injury caused before 15
October 2005.
[4] Pursuant to s 31(2) of the Act, the plaintiff applied on 17 March 2009 to extend the
time limit for the commencement of proceedings against the first and second
respondents to 15 October 2008 (“the extension application”). The proceeding has
been stayed by a court order until the extension application is determined. The
applicant is one of nine applicants whose extension applications are opposed by the
first respondent or the second respondent and sometimes both. Each application will
be considered separately because each depends on its own facts but there is
considerable overlap between them and there is therefore unavoidably some
repetition in the separate judgments particularly in the exegesis of the relevant
statutory and case law.
[5] The Act restricts the rights and liabilities of potential litigants and imposes strict
obligations on those who seek remedies in court once the limitation period is past but
is, regrettably, less than clear in its expression. In their joint judgment on the
construction of this Act, Gummow, Hayne and Crennan JJ said in Queensland v
Stephenson [2006] HCA 20 at [1]:
“Of the British ancestor of Pt 3 [of the Act], Lord Reid observed that
it had a strong claim to the distinction of being the worst drafted Act
on the statute book.1 ”
[6] Kirby J observed, somewhat trenchantly, at [44]-[45]:
“In Ditchburn v Seltsam Ltd, I suggested that an encounter with
statutory provisions similar to those under consideration in this
appeal was liable to confuse judges and lawyers causing them to
emerge ‘on the other side dazed, bruised and not entirely certain of
their whereabouts’. The passage of 17 years, and many more cases
struggling with the meaning of the statutory language, has not
removed the sense of disorientation. In a competition involving
many worthy candidates, Lord Reid's prize remains in place. This is
so although, as Rehnquist J noted in Chardon v Fumoro Solo, ‘[f]ew
laws stand in greater need of firmly defined, easily applied rules than
does the subject of periods of limitation’. This desirable goal has not
been attained in Australia. This appeal affords the latest illustration
of that fact.
In 1986, a law reform commission report was delivered proposing
changes to the then template of Australian laws. It suggested a
simplified approach to applications for extension of time for
commencement of actions. However, amendments were not enacted
in Queensland applicable to these proceedings, despite judicial
endorsement elsewhere of the need for reform. The result is that, in
the present cases, the Queensland courts were obliged to struggle
with the complex and obscure statutory language borrowed originally
from a deficient English model.”(footnotes omitted).
1 Central Asbestos Co Ltd v Dodd [1973] AC 518 at 529.
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[7] A similar comment had been made by the Queensland Court of Appeal in Carlowe v
Frigmobile P/L [1999] QCA 527 at [9]:
“That the extension provisions are complex and extremely technical
and have been a fertile source of litigation has been adversely
commented upon by the Queensland Law Reform Commission in
their review of the Limitation of Actions Act 1974.”2
[8] In Carter v Corporation of the Sisters of Mercy of the Diocese of Rockhampton &
Ors [2001] QCA 335 at [62], I added:
“The need for law reform is manifest and it has already been the
subject of a Queensland Law Reform Commission Report.”
[9] Nevertheless, the statute has not been amended and continues to be a fertile source of
uncertainty and therefore litigation.
[10] Section 31 relevantly provides:
“31 Ordinary actions
(1) This section applies to actions for damages for negligence …
or breach of duty … where the damages claimed by the
plaintiff for the negligence … or breach of duty consist of or
include damages in respect of personal injury to any person
...
(2) Where on application to a court by a person claiming to have
a right of action to which this section applies, it appears to
the court –
(a) that a material fact of a decisive character relating to
the right of action was not within the means of
knowledge of the applicant until a date after the
commencement of the year last preceding the
expiration of the period of limitation for the action;
and
(b) that there is evidence to establish the right of action
apart from a defence founded on the expiration of a
period of limitation;
the court may order that the period of limitation for the
action be extended so that it expires at the end of 1 year after
that date and thereupon, for the purposes of the action
brought by the applicant in that court, the period of
limitation is extended accordingly.
(3) This section applies to an action whether or not the period of
limitation for the action has expired –
…
(b) before an application is made under this section in
respect of the right of action.”
[11] The interpretation of s 31 is governed by s 30 of the Act, which provides:
“30 Interpretation
(1) For the purposes of this section and sections 31 … –
(a) the material facts relating to a right of action
include the following-
2 Review of the Limitation of Actions Act 1974 (Qld), QLRC Report No 53, September 1998 at 37-39.
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(i) the fact of the occurrence of
negligence … or breach of duty on
which the right of action is founded;
(ii) the identity of the person against
whom the right of action lies;
(iii) the fact that the negligence … or
breach of duty causes personal injury;
(iv) the nature and extent of the personal
injury so caused;
(v) the extent to which the personal
injury is caused by the negligence …
or breach of duty;
(b) material facts relating to a right of action are
of a decisive character if but only if a
reasonable person knowing those facts and
having taken the appropriate advice on those
facts, would regard those facts as showing –
(i) that an action on the right of action
would (apart from the effect of the
expiration of a period of limitation)
have a reasonable prospect of success
and of resulting in an award of
damages sufficient to justify the
bringing of an action on the right of
action; and
(ii) that the person whose means of
knowledge is in question ought in the
person’s own interests and taking the
person’s circumstances into account
to bring an action on the right of
action;
(c) a fact is not within the means of knowledge of a
person at a particular time if, but only if –
(i) the person does not know the fact at the time;
and
(ii) as far as the fact is able to be found out by
the person – the person has taken all
reasonable steps to find out the fact before
that time.
(2) In this section –
appropriate advice, in relation to facts, means the advice of
competent persons qualified in their respective fields to
advise on the medical, legal and other aspects of the facts.”
[12] The first respondent has conceded for the purpose of this application that there is
evidence to establish that the plaintiff has a right of action apart from the effect of the
defence founded on the expiration of the limitation period. Further, the first
respondent does not oppose the application on the ground of prejudice.
[13] The application is opposed by the first respondent on the basis that there was no
material fact of a decisive character which was not within the plaintiff’s knowledge
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or means of knowledge until after the relevant date for the purposes of s 31 of the
Act, 15 October 2007, ie one year before the action was commenced.
[14] The second respondent does not oppose the application on that basis. The application
is opposed by the second respondent on two grounds: on the ground that the plaintiff
has not established that she has a right of action apart from the defence founded on
the expiration of the limitation period; and on the ground of prejudice.
[15] Section 31(2)(b) of the Act provides that where, on an extension application to a
court by a person claiming to have a right of action to which s 31 applies, it appears
to the court that there is evidence to establish the right of action apart from the effect
of a defence founded on the expiration of a period of limitation, then the discretion to
grant the extension application arises. Prejudice is relevant to the exercise of that
discretion. That discretion is found in the word “may” in the conferral of power to
the court in the phrase “the court may order that the period of limitation for the action
be extended so that it expires at the end of 1 year after that date”.
[16] The first question to be examined is whether the court is satisfied that there was a
material fact of a decisive character which was not within the applicant’s knowledge
or means of knowledge before 15 October 2007. If that question is answered in the
affirmative, she will succeed against the first respondent in this extension application.
If the question is answered in the negative, then the extension application against the
first respondent will be dismissed.
[17] The second question to be examined is whether the court is satisfied that there is
evidence to establish a right of action against the second respondent. If that question
is answered in the affirmative, then the occasion to exercise the discretion to grant the
extension application against the second respondent arises. If that question is
answered in the negative, then the extension application against the second
respondent will be dismissed.
[18] If the second question is answered in the affirmative, the third question to be
examined is whether the court is satisfied that its power to extend time should be
exercised in this case notwithstanding the allegation by the second respondent that it
has suffered prejudice. If that question is answered in the affirmative, the applicant
will succeed against the second respondent in this extension application. If the
question is answered in the negative, then the extension application against the
second respondent will be dismissed.
Extension application against the first defendant
[19] The question to be determined in the application against the first respondent, stripped
of its double negatives, is whether there was a material fact of a decisive character
relating to the right of action which was not known to or within the means of
knowledge of the plaintiff prior to 15 October 2007.
[20] As the High Court observed in Queensland v Stephenson3 the test is a composite test,
of which the practical result is that:
“an applicant always has at least one year to commence proceedings
from the time when his or her knowledge of material facts (as
defined in s 30(1)(a)) coincides with the circumstance that a
3 At [30].
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reasonable person with the applicant's knowledge would regard the
facts as justifying and mandating that an action be brought in the
applicant's own interests (as in s 30(1)(b)). If this conjunction of
circumstances first occurs before the commencement of the last year
of the limitation period, no application for an extension can be
brought; the applicant has the benefit of at least one year before the
limitation period expires and is required to act within that time. If
the conjunction occurs after the commencement of that last year, the
court is empowered, if the other criteria in s 31 are satisfied, to
extend time for one year from the date of that conjunction of
circumstances.”
[21] What is a “material fact” is governed by s 30(1)(a) of the Act. It includes objectively
ascertainable criteria such as the fact of the occurrence of negligence on which the
right of action is founded, the identity of the person against whom the right of action
lies, the fact that the negligence caused personal injury, the nature and extent of the
personal injury so caused and the extent to which the personal injury was caused by
the negligence. In an extension application the applicant must show that, in spite of
taking all reasonable steps to find out, he or she did not know a material fact before
the relevant date or that he or she did not know that a material fact was of a decisive
character.
[22] What gives material facts a “decisive character” is governed by s 30(1)(b) of the Act.
That subsection looks to the response of a reasonable person to the knowledge of
material facts. Material facts are taken to be of a decisive character if, but only if, a
reasonable person knowing those facts, and having taken the advice of competent
persons qualified in their respective fields to advise on the medical, legal and other
aspects of the facts, would regard those facts as showing:
• that an action on the right of action would (apart from the effect of the
expiration of a period of limitation) have a reasonable prospect of success and
of resulting in an award of damages sufficient to justify the bringing of an
action on the right of action; and
• that the person whose means of knowledge is in question ought in the person’s
own interests and taking the person’s circumstances into account to bring an
action on the right of action.
[23] Whether or not a material fact of a decisive character is “within the means of
knowledge of a person” is governed by s 30(1)(c) of the Act, which is cast in the
negative, so that a fact is said not to be within the means of knowledge of a person at
a particular time if, but only if, the person does not know the fact at the time, and as
far as the fact is able to be found out by the person, the person has taken all
reasonable steps to find out the fact before that time. It is not the reasonable person
which is the subject of the test but this applicant taking whatever reasonable steps
were appropriate for her to have taken in the circumstances.
[24] In Dick v University of Queensland,4 Thomas JA said:
“As to the third step, the question was whether the existence of an
alternative safe system of work was ‘within the means of knowledge’ of
the plaintiff during the relevant period. His Honour observed that it is not
4 [2000] 2 Qd R 476 at 486-487.
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enough that the plaintiff did not know; it is a question of his means of
knowledge. His Honour then emphasised that it is the means of knowledge
of the plaintiff which are relevant and not the means of knowledge of a
hypothetical reasonable man, citing the remarks of Lord Reid in Smith v
Central Asbestos Co. such as ‘the plaintiff must have taken all such action
as it was reasonable for him to take to find out’ and ‘… this test is
subjective. We are not concerned with ‘the reasonable man’. Dawson J.
observed that s. 58(2) [Qld s. 30(1)(c)] unlike s. 57(1)(c) [Qld s. 30(1)(b)]
‘makes no assumption that appropriate advice was received when it was
sought. What is important is the means of knowledge which were
reasonably available to the appellant. And that must mean available in a
practical and not a theoretical sense’.”(footnotes omitted).
[25] This factor was further explained by Keane JA in NF v State of Queensland [2005]
QCA 110 at [29]:
“It is to be emphasized that s 30(1)(c) does not contemplate a state of
knowledge of material facts attainable in the abstract, either by the
exercise of ‘all reasonable steps’, or by the efforts of a reasonable
person. It speaks of a state of knowledge attainable by an actual
person who has taken all reasonable steps. The actual person
postulated by s 30(1)(c) as the person who has taken all reasonable
steps, is the particular person who has suffered particular personal
injuries. Whether an applicant for an extension of time has taken all
reasonable steps to find out a fact can only be answered by reference
to what can reasonably be expected from the actual person in the
circumstances of the applicant. It seems to me that, if that person has
taken all the reasonable steps that she is able to take to find out the
fact, and has not found it out, that fact is not within her means of
knowledge for the purpose of s 30(1)(c) of the Act.”
Material fact of a decisive character not within her means of knowledge
[26] In order to ascertain whether the applicant has satisfied the court that there was a
material fact of a decisive character which was not known to her or within her means
of knowledge before 15 October 2007, it is necessary to examine the facts of the
matter both before and after that date.
Before 15 October 2007
[27] The applicant, Caroline Shaw, formerly known by her married name, Caroline
Ceccato, was born on 9 August 1971 and underwent bilio-pancreatic diversion (BPD)
surgery conducted by the first respondent, Dr Broadbent, at the second respondent
hospital on 7 September 2005. At the time of the surgery she was 34 years old, a
mother of four children under the age of thirteen and was studying a Bachelor of
Architecture at the University of Queensland. She deferred her studies so that she
could undergo the surgery.
[28] The applicant said that her pregnancies caused her to put on weight and that she was
unable to lose this weight despite trying a variety of diets. She found out about the
first respondent on the internet after being advised by her general practitioner to do
some research into weight loss options. She told her general practitioner, Dr Jey
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Kumar of Loganholme Medical Surgery, about the first respondent and obtained a
referral to consult him.
[29] Prior to undergoing the surgery the applicant had a medical history which included
sleep deprivation, asthma, gall and kidney stones and depression. She had been
prescribed anti-depressants from time to time.
[30] BPD surgery is described as a type of bariatric weight loss surgery involving the
removal of approximately three-quarters of a person’s stomach and the diversion of
parts of the small intestines. As a result of the surgery, a person absorbs less fat and
other nutrients and is unable to eat large quantities of food and consequently loses
weight.
[31] The applicant’s first consultation with Dr Broadbent was in April 2005. She weighed
approximately 180 kilograms at the time and, at the consultation, Dr Broadbent
diagnosed her as having a fat storage disease which prevented her from losing weight.
The applicant said that Dr Broadbent described BPD surgery as the “Rolls Royce” of
weight loss surgery and told her that the only way her fat storage disease would be
cured would be if she underwent the operation.
[32] Following her first consultation, the applicant regularly attended meetings of a
support group created by Dr Broadbent for BPD patients, known as OSSIE (Obesity
Surgery Support Information and Education), which met at the hospital. As a
condition of undergoing the surgery the applicant was also referred to Lee Quist, a
former patient of Dr Broadbent and obesity counsellor.
[33] In mid-May 2005 the applicant commenced a low-fat vegan diet and exercise regime
as recommended by the first respondent. She continued to attend consultations with
the first respondent and was repeatedly reminded of the importance of following his
instructions with respect to diet and exercise. In addition, she was made aware by the
first respondent that he was both a barrister and surgeon and said that she was very
impressed by this. The applicant was led to believe that any problems experienced
following the surgery would be the result of what the first respondent termed “patient
error”.
[34] Prior to the surgery on 4 July 2005 the applicant signed a consent form,
acknowledging that the operation depended on “patient compliance”. By signing the
consent form, the applicant agreed that post-operatively she would eat a restricted
diet consisting of 3 x 50ml fat-free meals per day until ideal weight was reached, after
which 3 x 100ml reduced-fat meals were allowed. She also agreed to carry out the
exercise programme exactly as requested by Dr Broadbent and recognised that the
likelihood of success of the surgery was good provided that she complied and
continued to comply with all of Dr Broadbent’s instructions. The applicant
specifically recalls that when she was given the form, Dr Broadbent reminded her that
he was a barrister and said that he had covered every necessary item in the consent
form. He also emphasised to her that the main risk of the surgery was non-
compliance with instructions.
[35] The applicant was admitted to the hospital on 6 September 2005 and underwent the
BPD surgery together with a sleeve gastrectomy, duodenal switch and appendectomy
performed by the first respondent on 7 September 2005. She weighed 148 kilograms
at the time of the surgery, a loss of 32 kilograms from when she first consulted Dr
Broadbent.
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[36] During the period immediately after the surgery, the applicant recalls experiencing
some lung pain but feeling “quite good”. She was able to move around. Around 13
September, however, she recalls feeling weak and being unable to keep food down.
She was discharged on 14 September.
[37] The applicant was cared for by her mother at home. She felt ill and could hardly eat
anything at all. She consulted with the first respondent on 19 September 2005
complaining of deep pain and tiredness. He told her that she should continue with the
diet and exercise program.
[38] The applicant consulted the first respondent again on 25 September 2005 as she had
developed a high temperature and was unable to eat because of nausea. She also had
trouble walking and holding her head up. She was admitted to the hospital a second
time and diagnosed with streptococcus (“the second admission”). A chest x-ray
showed she had a moderate left pleural effusion with overlying basal
collapse/consolidation as well as mild consolidation in the right middle lobe. She
was transferred to the Intensive Care Unit of the hospital where her chest was
drained. The applicant was discharged from the hospital on 7 October 2005 and
instructed to continue with exercise. That advice was repeated at two further
consultations on 24 October 2005 and 31 October 2005.
[39] The applicant was subsequently admitted to the hospital on 1 November 2005 after
her husband telephoned the first respondent concerned about her condition (“the third
admission”). The applicant was diagnosed on 5 November 2005 with a fistula
between her lower bronchus and upper stomach. She was placed on naso-gastric
feeding and antibiotics and underwent blood transfusions. The applicant was advised
by the first respondent against surgery to repair the fistula and was told that it would
close spontaneously.
[40] Around 10 November 2005 the applicant’s husband became so concerned about her
condition that he requested another doctor, Dr Rutherford, take over her care. Dr
Rutherford arranged for a dietician, Julie Albrecht, to review the applicant regularly
and care for the applicant until her discharge on 7 December 2005.
[41] After her discharge the applicant sought the assistance of Dr Carmody for ongoing
care and management.
[42] In April 2006 when she attended an OSSIE meeting, the applicant learned of the
death of Roseanne Mafi, a patient of Dr Broadbent who had also undergone BPD
surgery. The applicant had met Ms Mafi previously during her first admission to the
hospital. From what she was told at the meeting, the applicant formed the view that
Ms Mafi had died of an infection following her failure to comply with the first
respondent’s instructions about nutrition and exercise.
[43] The applicant was undergoing great turmoil in her personal life. There was a history
of domestic violence in her marriage. Her evidence was that she endured many years
of emotional and sexual abuse and in August 2006, she and her children left the
family home and moved in to her parents’ garage. She subsequently took out a
Domestic Violence Order against her husband.
[44] The applicant has had ongoing problems since she underwent the BPD surgery
including bowel obstructions, chronic wind pain, cramping and incontinence. She
also suffers from debilitating fatigue, lack of concentration and constant muscle aches
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and pains. In 2007 the applicant attended twice at the emergency department at
Logan Hospital because of bowel obstruction.
[45] The applicant initially believed that most of her problems were attributable to what
the first respondent described as “patient error”, such as the failure to comply with
the first respondent’s diet and exercise program. She did not believe, however, that
the pain in her lungs was caused by any error on her part. She nevertheless had
“every faith” that she would recover completely.
[46] Significantly, on 19 October 2006 the applicant consulted a solicitor, Clare Creevey
of Clewett Corser & Drummond Lawyers, about potentially making a negligence
claim against the first respondent. The applicant said that she attended Ms Creevey’s
office with her mother. She was told that the process for making a claim was long,
difficult and potentially expensive as she could be liable for the first respondent’s
costs if she lost.
[47] Clewett Corser & Drummond Lawyers wrote to the applicant on 19 October 2006
referring to discussing a “potential claim for damages for personal injuries arising out
of medical treatment provided to you by Dr Broadbent and in particular the surgery
performed by him on 7 September 2005 and his treatment of you following that
surgery”. In that letter, Ms Creevey said that she understood the applicant’s concerns
to be that –
• She was misled with respect to the risks involved in BPD surgery;
• She was not provided with appropriate information about alternative weight
loss procedures;
• The surgery was performed negligently;
• If investigations had been performed in a reasonably competent manner the
defect that was the cause of her symptoms would have been identified with
the result that her experience of symptoms would have been for a lesser
period of time and would have less severe and permanent repercussions;
and
• Dr Broadbent’s supervision post-surgery was inadequate giving rise to
malnourishment and an inability to recover from complications.
Ms Creevey told the applicant the cost of obtaining an independent medical report to
support her claim.
[48] The applicant did not recall reading this letter and said she was not living at the
address it was sent to at the time. She did, however, recall receiving a letter from
Clewett Corser & Drummond in October 2006 and “throwing it on the floor” as she
was unable to read it owing to her poor mental state.
[49] In an email to Ms Creevey dated 29 October 2006 the applicant explained that she
was unwilling to proceed with the action against Dr Broadbent as the “stress of
worrying about the money would kill me”. The applicant also said that she could not
go ahead with the action as the three concerns about her case, as outlined to her by
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Ms Creevey, were legitimate and would be hard to overcome. This email suggests
that the applicant did read Ms Creevey’s letter of advice dated 19 October 2006. In
that letter, Ms Creevey warned the applicant that she would have to commence action
within three years of the cause of action arising or lose her right to sue Dr Broadbent.
She did not give her any advice about suing the hospital.
[50] Ms Shaw’s evidence as to why she did not take proceedings against Dr Broadbent at
that time was that she doubted she had a case as it had been reinforced to her on many
occasions that if things went wrong it was because of patient error. She did not have
the emotional or physical energy to focus on anything apart from regaining her health
and returning to work. The applicant also said that at the time she was in a very poor
financial situation and was concerned about looking after her children as a single
parent. She also knew that Dr Broadbent was a barrister and was “truly terrified” that
he would make things very difficult for her. She did not think it was worth putting
herself and her family through more suffering if she did not have a very good chance
of being successful.
[51] She accepted the solicitor’s advice that “there were a few big risks I had which could
prevent me from establishing a case.” Those risks were identified by her solicitor as
issues she would need to overcome in order to succeed. They included that the
surgery might have been appropriate in her circumstances, that she signed a consent
form which clearly identified a multitude of risks including those which ultimately
did arise as complications for her, and she was well aware of the risks of the surgery
from research she undertook on the internet yet still chose to proceed.
[52] This advice came to Ms Shaw when she was in a position of great stress because of
her matrimonial problems, she was living in her parents’ garage and had
responsibility for her four young children. But more significantly she was suffering
physically and psychologically because of the surgery carried out by Dr Broadbent
and his treatment of the complications that arose from that surgery. When she gave
evidence in court on this application she was pale, quiet and not assertive, consistent
with being a person who was overawed by Dr Broadbent and fearful of suing him
when she thought she was at real risk of losing. The first respondent urged the court
to draw an adverse inference from the applicant’s not calling Ms Creevey and the
applicant’s mother to give evidence. However, I have relied substantially on the
written records and the objective facts and my assessment of the applicant. In those
circumstances the evidence of Ms Creevey and the applicant’s mother would have
added little.
[53] Ms Shaw consulted with a general practitioner, Dr Plint, in June 2007 and told her of
all of the problems caused to her by the surgery performed by Dr Broadbent. She
told Dr Plint that she had decided not to sue because she did not want to tie herself up
with legal action and wanted to get on with her life.
Events after 15 October 2007
[54] The applicant said that she was not aware that anyone else was pursuing a claim
against the first respondent until around September 2008 when her partner heard
through the media about a number of complaints made against the first respondent
and told her about them. The applicant claims that it was only then that she linked
her ongoing stomach problems with the BPD surgery. The applicant said that
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although she did not feel emotionally capable she was convinced by her partner that it
would be worthwhile to speak to a solicitor.
[55] The applicant alleged that prior to September 2008 she believed that her post-
operative complications were unique and mainly her own fault for doing the wrong
thing and not fully complying with the first respondent’s instructions. She also said
that she was terrified of the first respondent as he was both a barrister and surgeon
and this appears to have deterred her from instigating action against Dr Broadbent
prior to September 2008.
[56] The applicant consulted with a solicitor from Maurice Blackburn Lawyers in relation
to a medical negligence claim. On 9 October 2008 the applicant’s solicitors served
an Initial Notice on both the first respondent and second respondent pursuant to the
Personal Injuries Proceedings Act 2002.
[57] Ms Shaw’s claim and statement of claim against Dr Broadbent and the hospital was
filed on 15 October 2008. In her statement of claim, as amended 30 November 2009,
the applicant claims that it was a term of the contract between the applicant and the
first respondent and/or the second respondent and/or it was the duty of the
respondents that the respondents would exercise reasonable care and skill in the
provision of treatment and advice and that the relevant treatment, advice and surgery
provided would be commensurate with that of a competent and skilled surgeon and/or
medical facility. The applicant alleges that the duty owed by the second respondent
was non-delegable. She alleges that her injuries were caused or contributed to by the
negligence and/or breach of contract of the first and/or second respondent.
[58] The particulars of the breach of contract and negligence are:
• The first respondent failed to perform the BPD surgery to the standard of a
reasonably competent surgeon;
• The applicant was discharged from the hospital despite being unstable and at
risk of developing serious complications following the BPD surgery;
• The first and/or second respondent failed to monitor her post-surgery or
provide her with an appropriate nutrition plan so as to prevent her from
developing malnutrition and other complications following the BPD surgery;
• The first and/or second respondent failed to provide her with appropriate
nutritional advice both before and after the BPD surgery, failed to advise of the
likely complications and failed to exercise reasonable care and skill in the
provision of advice, patient selection, surgery and treatment;
• The first and/or second respondent failed to give her adequate and correct
warnings as to the risks associated with BPD surgery particularly in regard to
accurately explaining the risk of morbidity and the importance of nutritional
advice; and
• The first and/or second respondent failed to consult with or refer her to other
medical practitioners for treatment following BPD surgery;
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• The first and/or second respondent failed to prevent the applicant developing
streptococcus milleri infection by failing to undertake adequate preparation for
surgery and failing to undertake adequate post-surgical treatment.
• The first and/or the second respondent failed to prepare the applicant
adequately for surgery by clipping body hair and/or providing two antiseptic
showers so as to provide adequate protection against infection.
[59] The applicant’s solicitors met with Associate Professor Simon Woods, a general
surgeon specialising in surgical treatment of obesity, in Melbourne on 4 March 2009
to seek an expert opinion on the BPD surgery performed by Dr Broadbent on the
applicant and others. A memorandum in respect of this meeting was prepared by the
applicant’s solicitors and reviewed and signed by Dr Woods. That memorandum said
that although Dr Woods had not seen the surgical technique performed by Dr
Broadbent and therefore thought that it was difficult to critique, he could identify four
salient points in relation to Dr Broadbent’s performance of the surgery:
1. Dr Broadbent made the patients vulnerable pre-operatively by his nutrition,
dietary and exercise regimen. The patients came to major surgery compromised,
in a weakened state and with a reduced ability to heal;
2. He exacerbated that vulnerability post-operatively by giving them inappropriate
nutritional advice and failing to maintain standard nutritional parameters;
3. He generally refused to request or accept advice from other practitioners. Even
when he did acknowledge that the patient had nutritional deficiencies he did not
provide adequate care;
4. He turned a blind eye to obvious symptoms such as fevers and repeatedly
blamed the patient for not complying when he should have been investigating
the cause of the symptoms.
[60] The memorandum also said that Dr Woods was of the opinion that:
• Dr Broadbent failed to increase the protein intake of his patients pre-
operatively and post-operatively despite high protein being a fundamental
requirement for a healthy immune system and post-operative wellbeing;
• It was inappropriate for Dr Broadbent to feed some patients temporarily via a
naso-gastric tube where there are problems with the stomach (the tube should
be placed into the small bowel);
• Dr Broadbent’s pre-operative regimen was fundamentally flawed as patients
would come into the operation protein and vitamin deficient;
• Dr Broadbent promoted a vegan diet which is just possible to maintain post-
operatively if the patient eats enough vegetable proteins. Dr Broadbent,
however, discouraged patients from eating those vegetable proteins;
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• Dr Broadbent exhorted his patients to exercise but insisted on a protein
deficient diet. A person cannot exercise and maintain muscle mass unless the
patient maintains protein;
• Dr Broadbent provided “seriously misleading” information to his patients on
food composition;
• A short-term problem with Dr Broadbent’s conduct was that patients deficient
in protein and vitamins would have their recovery hampered and a reduced
ability to cope with complications and infection. The most common short-term
risk of the operation is staple line leakage;
• There are several long-term problems that may arise following BPD surgery –
BPD surgery deliberately gives the patient malabsorption and as a result,
adequate protein is needed otherwise the patient will become malnourished; a
serious vitamin A and vitamin D deficiency may lead to reduced bone mass
and possible osteoporosis, dysfunction of the immune system, depressive
symptoms and increased risk of a variety of cancers.
[61] Dr Woods recognised that despite its inherent risks, the long term results of BPD
surgery for obesity are very satisfactory and that there was no reason why patients
should not be back at work and living normal lives following appropriate monitoring.
[62] Specifically in relation to the applicant, Dr Woods thought that it was more probable
than not that the incorrect nutrition and dietary advice of Dr Broadbent had
contributed to the applicant’s post-operative complications. The applicant’s lack of
protein and vitamins considerably lessened her capacity to recover from a major
surgical procedure and exposed her to a greater risk of infection. According to Dr
Woods, an example of Dr Broadbent’s incorrect advice was that he informed Ms
Shaw that fat is converted to glucose. This was incorrect as only protein can be
turned into glucose. A further error was that Dr Broadbent advised the applicant to
adopt a vegan diet yet did not direct her towards appropriate protein-rich foods.
[63] In addition, Dr Woods was of the view that even more significantly, Dr Broadbent
failed to adequately treat and investigate the applicant despite her presenting post-
operatively with obvious symptoms of infection. Because of delayed treatment of the
applicant’s gastric leak and subphrenic collection, she developed a gastro-bronchial
fistula.
[64] Dr Woods was also of the opinion that the applicant was at a significant disadvantage
in coping with her post-operative complications as she was malnourished. At no time
was she provided with adequate nutrition whilst under the care of Dr Broadbent and it
was only until she came under the care of Dr Rutherford and a dietician that she
finally received nutritional support.
[65] The applicant must show that there was a material fact of a decisive character relating
to the right of action which was not known to or within her means of knowledge
before 15 October 2007.
[66] The applicant’s solicitors submitted that the expert evidence of Dr Woods suggesting
that the advice and treatment of the first respondent was below the standard expected
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of a competent and skilled surgeon is the material fact of a decisive character which
was discovered by the plaintiff after the expiration of the limitation period.
[67] The first respondent, Dr Broadbent, submitted that the court should dismiss the
application on the basis that the applicant’s material fact of a decisive character
relating to her right of action was within her knowledge or means of knowledge at a
time more than one year before the commencement of the proceedings.
[68] The first respondent submitted that well prior to September 2008 the applicant was
aware that she may have had a right of action because:
• After the BPD surgery she became seriously unwell with post-operative
complications;
• She elected not to return to the first respondent’s care after 10 November 2005
and allowed her husband to seek out Dr Rutherford to take over her management
and treatment at the second respondent hospital;
• In February 2006 she saw a counsellor at the University of Queensland and told
her that she had experienced severe complications as a result of botched surgery.
The applicant denied in cross-examination using the word “botched” but accepts
that she may have said something to give the counsellor that impression;
• She sought legal advice from a solicitor, Clare Creevey, in October 2006 in
respect of a potential negligence action and was aware of her ability to
commence a common law claim for personal injury or to complain to the Health
Rights Commission; and
• She consulted with her general practitioner, Dr Plint, on 18 June 2007 and
advised her that she made a decision not to sue over her abdominal problems as
she had chosen to undergo the operation in the first place and wanted to get on
with her life and not tie herself up in legal action.
[69] It is relevant here to note, as Keane JA held in HWC v The Corporation of the Synod
of the Diocese of Brisbane [2009] QCA 168 at [44]:
“… it is not the policy of the courts in the application of s 31 of the
Act to penalise an injured person who makes a reasonable decision to
try to get on with life rather than a decision to litigate upon a
questionable basis.”
[70] The material facts of a decisive character were found in the advice of Dr Woods: the
negligent, indeed apparently grossly negligent, treatment of her by Dr Broadbent had
been responsible for the complications she had suffered after surgery and that those
complications had been inadequately investigated and wrongly treated. She then
knew that an action on the right of action would (apart from the effect of the
expiration of a period of limitation) have a reasonable prospect of success and of
resulting in an award of damages sufficient to justify the bringing of an action on the
right of action.
[71] Had she taken all reasonable steps to find out that fact? Although she suspected that
Dr Broadbent was negligent and it was this negligence that had caused her injuries,
she still believed that it was her failure to follow his instructions that caused her
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continuing post-operative symptoms and complications. She was a very vulnerable
person as could be seen when she gave evidence. She took advice from a solicitor
but that advice led her to believe that there was an unacceptable risk of losing if she
commenced litigation against Dr Broadbent who had emphasised to her that he was a
barrister as well as a surgeon. She had taken all the steps that it was reasonable for a
person in her position to take to discover the material fact of a decisive character
which was found in the advice of Dr Woods, and yet had not found that out. Only
after that did she know that an action against the first respondent had reasonable
prospect of success and of resulting in an award of damages sufficient to justify the
bringing of an action on the right of action; and that she ought in her own interests
and taking her circumstances into account to bring an action on that cause of action.
Conclusion
[72] The applicant has therefore shown that there were material facts of a decisive
character relating to the right of action which were not known to her or within her
means of knowledge before 15 October 2007. The first respondent did not suggest
that there were any discretionary reasons to refuse the application; it is appropriate to
grant the orders sought in the application against the first respondent. The period of
limitation for bringing proceedings against the first respondent should be extended to
15 October 2008.
Extension application against the second defendant
[73] The extension application against the second respondent requires an examination of
two questions: first whether there is evidence to establish a right of action; and
secondly, whether the court’s power to extend time should be exercised in the face of
the prejudice that the second respondent said it would suffer if the extension
application were granted.
Right of action against the second defendant
[74] In order to establish a right of action, the applicant must show that there is evidence
which can reasonably be expected to be available at trial which, if unopposed by
other evidence, would be sufficient to prove her case: see Wood v Glaxo Australia
Pty Ltd [1994] 2 Qd R 431 at 435; Raschke v Suncorp Metway Insurance Limited
[2005] 2 Qd R 549 at 559 [29].
[75] The applicant relies in part on the expert evidence of Catherine Sharp, an experienced
nurse, to endeavour to prove that the second respondent was in breach of its contract,
and failed in its non-delegable duty, to exercise reasonable care and skill in the
provision of treatment and advice and that the relevant treatment, advice and surgery
provided would be commensurate with that of a competent and skilled medical
facility.
[76] In a report dated 24 November 2009, Ms Sharp gave her overall opinion, set out in
detail the applicant’s history during her three admissions to the hospital, and gave her
opinion on the questions asked by the applicant’s solicitors:
(a) What is the role of a nurse in the context of caring for a
patient both pre- and post-operatively for abdominal
surgery?
(b) Whether the diet and nutrition advice as administered by
nursing staff at the hospital during Ms Shaw’s stay for the
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BPD surgery and during her subsequent post-operative
admissions fell below a reasonable standard of care taking
into account standard hospital policy and procedures
regarding the adequate care of a patient? What is the role of
a nurse in this regard?
(c) What aspect of the nursing care fell below a reasonable
standard to be expected of a private hospital in Australia
during the year Ms Shaw was admitted (2005)?
(d) Whether given Ms Shaw’s condition as stated in the hospital
notes following the BPD surgery she should have been
discharged from hospital on 14 September 2005 and 7
October 2005?
(e) If Ms Shaw should not have been discharged on 14
September 2005 and 7 October 2005 what treatment or
action should have been provided by the nursing staff?
(f) Did the failure by the nursing staff to provide adequate
treatment fall below a reasonable standard to be expected of
nursing staff at a Private Hospital in 2005? If so in what
way?
(g) Has the failure to provide reasonable treatment by the
nursing staff caused or materially contributed to Ms Shaw’s
injuries? If so in what ways?
What is the role of a nurse in the context of caring for a patient both pre- and post-
operatively for abdominal surgery?
[77] Ms Sharp’s report set out that the role of a nurse pre-operatively in caring for a
patient who was to undergo major abdominal surgery such as BPD surgery might
include giving a bowel preparation to clean out the intestines to reduce the possibility
of contamination of the surgical field if the bowel is nicked during surgery; removal
of body hair from the relevant area by clipping, as shaving is a risk factor for post-
operative infection; antiseptic showers prior to surgery, the hospital’s care track
recommends two such showers, one on the day of admission and one on the day of
surgery; giving an anti-coagulant injection and application of thrombo-anti-embolic
stockings to the lower limbs to prevent deep vein thrombosis; and ensuring that a
dietician is involved constantly during the admission, including a consultation with
the patient prior to surgery, and informing senior nursing staff if there is an objection
to this by a doctor, the family or the patient.
[78] The post-operative role of nursing care involves focusing on the patient’s intake and
output; managing pain; noting when the patient passes flatus; checking the surgical
site, naso-gastric aspirate and the wound drains; and observing temperature, blood
pressure and blood test results. Although nurses are not expected to interpret blood
test results, in Ms Sharp’s opinion they can be expected to question abnormal results
and notify the surgeon and nurse manager. The nursing staff should report to the
surgeon, wound care and infection control consultant and senior nurse abnormal
temperatures and raised white cell count as these are indications that a patient is
developing or has developed a surgical site infection. Consultations with a dietician
should continue post-operatively and should be arranged to occur following discharge
to make decisions regarding food and fluid intake. The nurse, Nurse Unit Manager or
discharge nurse should make arrangements for a community nurse to care for any
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patient being discharged with a drain in situ or with wound dressings that require
changing.
Whether the diet and nutrition advice as administered by nursing staff at the hospital
during Ms Shaw’s stay for the BPD surgery and during her subsequent post-operative
admissions fell below a reasonable standard of care taking into account standard
hospital policy and procedures regarding the adequate care of a patient? What is the
role of a nurse in this regard?
[79] Ms Sharp qualified her opinion by saying that she was not qualified to comment on
the diet and nutrition advice and that she had not seen the hospital policy. However,
she said that usual care for a patient undergoing such abdominal surgery would be to
request consultation with a dietician. The nurse’s role is to ensure that a dietician is
involved throughout the patient’s stay in hospital and if there is an objection to this
by a doctor or the patient or her family to inform senior nursing management.
What aspect of the nursing care fell below a reasonable standard to be expected of a
private hospital in Australia during the year Ms Shaw was admitted (2005)?
[80] Ms Sharp expressed the opinion that the care provided by the staff of the second
respondent hospital fell below a reasonable standard expected of a private hospital in
2005 in the following ways:
• By shaving rather than clipping the applicant’s body hair (which increased
the risk of post-operative infection) and failing to provide two antiseptic
showers prior to surgery contrary to the hospital’s care track;
• By failing to organise a consultation with a dietician;
• By failing to question the surgeon about input from a dietician;
• By failing to ask a senior nurse manager to intervene and obtain input from
a dietician contrary to ANMC 5 Elements 4.2 and 4.3;
• By failing to notify the surgeon that the applicant’s blood results were
available on the ward and were normal or abnormal;
• By failing to notify senior management and Dr Broadbent or another doctor
about all the abnormal results;
• By failing to notify a senior nurse or the surgeon of the low haemoglobin.
Whether given Ms Shaw’s condition as stated in the hospital notes following the BPD
surgery she should have been discharged from hospital on 14 September 2005 and 7
October 2005?
[81] Ms Sharp accepted that the applicant was fit enough for discharge post-operatively on
14 September 2005. Although there were no arrangements made for her to consult a
dietician, there was no need for her to remain in hospital. However, Ms Sharp took
5 Australian Nursing and Midwifery Council National Competency Standards for the Registered
Nurse.
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issue with the applicant’s discharge on 7 October 2005 following her second
admission to the hospital. Her stay in hospital had involved a period in the intensive
care unit with a streptococcus milleri sepsis and a pleural effusion which required
drainage and her condition on the day of discharge was only mediocre. She still had
a cough, was nauseated, required anti-emetics and was complaining of pain. There
was no further mention of the five sores which she had on her head prior to the BPD
surgery. In her overall opinion, Ms Sharp had expressed the view that a nurse acting
with reasonable care would have notified the surgeon of those sores prior to her
undergoing the BPD surgery as they might have increased the risk of a post-operative
surgical site infection. Although there were many abnormal blood results between 1
and 5 October, no blood results were recorded after that date in spite of the fact that
there is no reason to believe that they could have been normal on the day of
discharge. Dr Broadbent failed to mention any of the abnormal results in his progress
notes.
If Ms Shaw should not have been discharged on 14 September 2005 and 7 October 2005
what treatment or action should have been provided by the nursing staff?
[82] Ms Sharp said that the applicant seemed to be fit for discharge on 14 September
2005, but certainly not on 7 October 2005. Ms Sharp expressed the opinion that
nurses could have reported the abnormal blood results to Dr Broadbent and/or senior
nursing management and should have insisted that she not be discharged without
some assurance that she would improve at home under the care of her general
practitioner and that a dietician was involved post-discharge.
Did the failure by the nursing staff to provide adequate treatment fall below a
reasonable standard to be expected of nursing staff at a Private Hospital in 2005? If so
in what way?
[83] Ms Sharp said that her criticism was not so much about the treatment the nurses
provided but rather that they did not ask senior nursing management to intervene,
help or advise on what to do when the applicant’s blood results were so abnormal;
nor did they ask senior nursing management to insist on input from a dietician or on
what to do when she was being discharged home when still very ill.
Has the failure to provide reasonable treatment by the nursing staff caused or materially
contributed to Ms Shaw’s injuries? If so in what ways?
[84] Ms Sharp expressed the opinion that had the applicant not been discharged home with
very abnormal blood results on 7 October 2005 and had nursing staff advocated for
her by discussing the situation with senior nurse managers, asking for a second
opinion, then the outcome for the applicant could have been much better.
[85] However, there was evidence which was not to similar effect on some of the matters
raised by Ms Sharp. The second respondent’s solicitor spoke to Dr Woods on 27 and
30 March 2010. He said that the applicant’s post-operative infection “bore absolutely
no relationship to whether the plaintiff was given a pre-operative antiseptic shower,
whether the skin was clipped or shaved prior to surgery or whether or not the patient
may have had some sores on her head at the time of her admission to hospital for
surgery.” He also expressed the opinion that it was not within nursing expertise to
comment on the cause of the applicant’s intra-abdominal sepsis. He said that a
surgeon would not be troubled by a moderate drop in haemoglobin and albumin
levels such as happened to the applicant after her BPD surgery. He said he would not
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expect the surgeon to be specifically notified of these results or expect that they
should be brought to his attention as they fell within normal expectations after this
operation.
[86] When cross-examined Ms Sharp said her criticisms were restricted to the first two
admissions. She agreed that she was not qualified to interpret blood results nor what
the effect was of the sores on the applicant’s head. She maintained her view that Dr
Broadbent, or in his absence, the nurse supervisor should have been informed of the
applicant’s low haemoglobin. She said that the nurses should have informed the
surgeon of the applicant’s being febrile, tachycardic, having abnormal fluid balance,
shoulder tip pain and increased temperature all of which may be symptoms of
abdominal infection.
[87] Ms Sharp was cross-examined in detail about the nursing notes found in the chart on
Ms Shaw’s second admission from 25 September to 7 October 2005. She did not
criticise most of the nursing of the applicant on her second admission. For example,
on the morning of 26 September the nurse noted that the patient had rigors and was
shaking with pain in her legs and nausea. Her temperature was normal but her
oxygen saturation level was down, her pulse rate was raised and the nurse was unable
to obtain a blood pressure reading. On settling, the applicant’s oxygen saturation
returned to normal, her pulse rate reduced and her blood pressure was normal but her
temperature rose to 39.5°. The chart notes showed that Dr Broadbent was contacted
and he ordered blood cultures. The chart notes also showed that QML was contacted
immediately after that. The chart showed QML took blood cultures at 8.45am.
[88] At 9.30am, the applicant was complaining of increased pain and continuous nausea.
Dr Broadbent was contacted and made orders for analgesia and anti-emetics. QML
took more blood at 12.05pm. There is no specific note of that being ordered by a
doctor although Ms Sharp conceded that a blood test must be ordered by a doctor and
so such an order must have been given demonstrating that not everything that occurs
with regard to a patient will necessarily be recorded in the chart. At 6.45pm Dr
Broadbent was noted as having seen the applicant and ordered treatment to continue
and for blood tests to be repeated if her temperature rose above 38.5°.
[89] The chart showed that the applicant was noted as febrile with a temperature of 38° at
2.00am. There was a note to that effect at 5am by which time her temperature had
dropped to 37°. Dr Broadbent saw the applicant at 6.30am and noted her temperature
was down that morning. He ordered a repeat of the blood tests to be conducted that
day. That continued when the nursing staff recorded her temperature at 39° at
11.30am. The chart recorded that the nursing staff contacted QML for the blood
cultures and faxed the pathology results to Dr Broadbent. Further blood cultures
came in from QML at 12.20pm. The chart notes showed that QML was contacted at
12.30pm and that they were to fax results to Dr Broadbent.
[90] At 6.30pm Dr Broadbent saw the applicant and made a provisional diagnosis as to the
cause of the infection and prescribed antibiotics. At 8.30pm the chart recorded that
the applicant “looks and feels terrible. Tachycardic, hypotensive & febrile.” The
blood culture result was phoned to Dr Broadbent. Ms Sharp conceded she had no
criticism of the treatment by the nurses or their communications with the surgeon on
the second admission to that point.
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[91] At 6.00am on 27 September 2005, Dr Broadbent saw the applicant and recorded in
her chart a range of investigations and treatment for her condition including
consulting with other doctors and when he would review her next. At 6.30am the
nursing staff recorded in the chart that the applicant felt unwell. She had pain in the
left upper quadrant extending to her back and into her left shoulder, difficulty in
breathing with the pain, was nauseated, her temperature had risen from 38.5° at
1.00am to 38.8°, she was tachycardic and her blood pressure had dropped to 88/54,
her oxygen saturation level was poor and her urine output was low and dark brown
orange in colour. There was no note that a doctor was specifically notified of these
observations which were consistent with sepsis. Further pathology was taken by
QML which was consistent with Dr Broadbent’s instruction on 25 September and
with his notes at 6.00am that morning.
[92] The chart then showed that Dr Andrew Jones attended the applicant later that
morning in accordance with the note made by Dr Broadbent at 6am. Dr Jones
recorded the results of his physical examination, the pathology results and the
appropriate drug treatment. The applicant was then seen by Dr Lindsay at 12.30pm
who recorded that he noted Dr Jones’s notes and had sighted the CT and discussed it
with the radiologist. He also made further notes of his observations and a discussion
with Dr Jones and with Dr Broadbent who said he would ask Dr Harrington to review
and advise. At 7pm the applicant was seen again by Dr Broadbent. At 9.15pm
extensive nursing notes were made. The applicant had a high temperature, low blood
pressure and tachycardia persisted. She remained Nil By Mouth. She still had dark
concentrated urine in spite of the fact that Dr Broadbent had ordered 500 millilitres to
be given intravenously at 7.00pm. Her mother was in attendance and staying
overnight. These were serious abnormal signs.
[93] At 5.30 am on 29 September 2005, the chart recorded that her temperature remained
elevated and she was suffering from tachycardia, was breathless with reduced oxygen
saturation and still had dark concentrated urine. Although she was using pain relief
regularly she had a pain score of 4 to 5 at rest and up to 7 on movement.
[94] Counsel for the second respondent appeared to concede in the form of the question
she asked, that the nurses had not notified a doctor during the night which was of
concern to Ms Sharp who expressed the opinion that a patient should not have been
left like that overnight without a doctor’s being notified. Ms Sharp did not, however,
as she conceded, have the expertise to give an opinion as to what effect that failure to
notify a doctor might have had.
[95] The applicant was seen by Dr Broadbent at 6.00am. He recorded that she remained
unwell with a raised temperature and left chest pain and that she was weak. He
reviewed her fluid balance and ordered more blood tests. He noted that Dr Jones and
Dr Lindsay would review her and he would return in the afternoon.
[96] The applicant was seen by Dr Jones and the physiotherapist again on 29 September
2005. At 2.00pm, she had a temperature of 37.5° and a pulse rate of 100 to 120. Ms
Sharp noted that that respiration rate was far too high for a patient who was lying in
bed. Her oxygen saturation was very low which indicated that she was not breathing
properly. Her urine measure was far too low. There was no note that a doctor had
been notified of these signs. Dr Broadbent however then saw the applicant. His note
said that she looked a “bit better”, her temperature was down and her pulse was down
and that she felt better. He made no note of her oxygen saturation. The time was
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noted and the chart does not reveal whether he was phoned or not; but Ms Sharp said
that with such abnormal results she would have expected to see it noted that Dr
Broadbent had been notified if that is what happened. Ms Sharp conceded that the
fact that it was not recorded in the notes did not necessarily mean that it did not
happen.
[97] At 1.30 am on 30 September 2005, the chart recorded that Dr Broadbent was notified
of her huge fluid imbalance, urine output and vital signs. Ms Sharp was of the
opinion that notifying Dr Broadbent on this and other occasions was appropriate but
was critical of the failure to do so on other occasions. It must have become evident
between 2.00pm on 29 September when her urine levels were as low as 10ml an hour
and 1.30am on 30 September when she had a positive fluid balance of almost 8 litres
that her fluid imbalance was increasing. Ms Sharp was of the opinion that Dr
Broadbent should have been notified of this earlier than he was; and more should
have been done for the applicant during the night.
[98] The applicant was seen by Dr Broadbent at 6.00am on 30 September 2005. He noted
her temperature was down and her blood pressure up and that her urine output was
just satisfactory. She was noted by him to be very distressed with pain which
prevented her from moving. She was frustrated, depressed and anxious. Given the
problem with pain management he queried whether the Intensive Care Unit (ICU)
would be an option. She was seen later that morning by Dr Jones who noted her
temperature, her pain and her blood test results and further noted that he agreed that
she should be put into ICU. Ms Sharp had no criticism of the care received in ICU.
[99] Counsel for the second respondent cross-examined Ms Sharp as to the effect of
shaving Ms Shaw and failing to give antiseptic showers. Ms Sharp conceded that it is
difficult to say whether the organisms on the skin caused the infections Ms Shaw
suffered after her surgery. However, policies had been put in place based on research
which shows that if a patient is shaved or not given antiseptic showers, that patient is
more likely to develop post-surgical site infection. An example of such a policy was
the Infection Control Guidelines published in November 2001 by Queensland Health
which Ms Sharp annexed to her report.
[100] Ms Sharp was critical of the failure to organise or question the absence of a dietician.
Ms Sharp said that most nurses would know that people need a balanced diet of fat,
protein and carbohydrates so if a nurse sees that a person is not being given any of
these components in their post-operative diet, they should question it.
[101] Counsel for the second respondent questioned the applicant about her compliance
with Dr Broadbent’s dietary requirements. She described herself as a most compliant
patient. She accepted Dr Broadbent’s advice until Dr Rutherford took over her care.
Although she was a most compliant patient, her responses to questions about what
she would have done, had she been given advice, by a properly qualified dietician,
that Dr Broadbent’s dietary advice would damage her health showed that she would
have questioned his advice if she had been offered an alternative by a qualified
person and may not have followed Dr Broadbent’s advice. That is reinforced by the
fact that she no longer followed Dr Broadbent’s advice once she came under Dr
Rutherford’s care and he arranged for her to be seen by a qualified dietician. In any
event, she was not offered advice from a qualified dietician by Dr Broadbent or by
the hospital while she was his patient.
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[102] She described in her evidence how she came under Dr Rutherford’s care:
“One of the nurses, I don't even know which one, placed a card with
Dr Rutherford's details on my bedside table in the hospital for me to
find and there was talk about the ward that it was very unprofessional
to say things about a surgeon but the nurses would often go mutter
mutter mutter mutter under their breath about things that were
happening to me, and so one of them was bold enough and I'm sorry,
I was too sick to know which one, but one of them was bold enough
to say, ‘It doesn't hurt to get a second opinion, does it? Just give this
gentleman a ring and find out whether the care you're getting’ - I
think she was very worried for my health and so my husband rang Dr
Rutherford for some advice.”
[103] Ms Sharp expressed the opinion that as the applicant was in a mediocre condition on
7 October 2005 the nurses should have insisted that she not be discharged without
some assurance that she would improve at home under the care of her general
practitioner and that a dietician would be involved post-discharge.
[104] In support of the second respondent’s contention that there is no evidence to establish
a right of action, counsel submitted that Dr Broadbent was not an employee of the
hospital and was not remunerated by the hospital. In order to operate at the hospital,
a doctor must be a credentialed Visiting Medical Officer (VMO). Dr Broadbent was
a VMO at the hospital with clinical privileges for general surgery. There was no
written contract for services between the hospital and a VMO for the provision of
medical services. He invoiced his patients directly and whilst at the hospital, the
applicant was treated pursuant to his orders. The hospital provided him with the
necessary operating equipment and instrumentation, operating theatre nurses, a ward
bed for admission of his patients and post-operative nursing care.
[105] Janet Lloyd has been the Director of Clinical Services at the hospital since March
2003. According to Ms Lloyd’s affidavit, the VMO who admits a patient is
considered by the hospital to have sole responsibility for decisions about the patient’s
medical management. Prior to admission, a registered nurse from the hospital obtains
a nursing history from the patient. The patient is required to bring a signed hospital
consent form with her to the hospital on the day of admission. A patient is prepared
for surgery by the hospital nursing staff in accordance with the VMO’s medical
orders. Dr Broadbent’s medical orders included under the heading “Intravenous
Fluids/Diet”, the instruction “As ordered.”
[106] The nursing staff is required by the hospital to act under the instruction of the VMO
in relation to medical management but also to act in accordance with relevant hospital
policies. In the ordinary course of events, if other medical practitioners such as
anaesthetists or physicians are required to be involved in the care of a patient while
admitted, the patient is referred by the VMO to other doctors who are credentialed at
the hospital. Even when other health care providers are unexpectedly needed to
attend to a patient, this is ordinarily arranged by the VMO. The hospital does not
employ dieticians to attend patients independently of a VMO.
[107] In order for patients to be discharged from the hospital, they must first be medically
cleared by the responsible VMO. The nursing staff of the hospital then undertakes a
nursing discharge summary once directed to do so by the VMO. The applicant’s
discharge summary was completed by the nursing staff on 14 September 2005.
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[108] Counsel for the second respondent submitted that there was nothing to suggest that
the hospital breached its duty to take reasonable care in providing nursing services to
the applicant or to act reasonably in credentialing the first respondent. For example,
counsel submitted that Ms Sharp’s criticism that nurses elected to shave rather than
clip the applicant’s body hair is irrelevant as Ms Sharp is not able to point to what
adverse effect this had on the applicant. More significantly, the applicant’s expert Dr
Woods accepted that the applicant’s post-operative infection “bore absolutely no
relationship to whether the plaintiff was given a pre-operative antiseptic shower,
whether the skin was clipped or shaved prior to surgery or whether or not the patient
may have had some sores on her head at the time of her admission to hospital for
surgery.” However, despite this and concessions made by Ms Sharp in her evidence
there remained criticisms of the nursing care which cannot be determined on an
application of this kind. If accepted, they would prove a failure to exercise
reasonable care which caused increased suffering to the applicant. If her criticism of
the failure to organise or the failure to question the absence of a dietician in the care
of the applicant were accepted, then there is arguably a causal link between that
failure and the applicant’s consequential suffering.
[109] It is also the case that the hospital had the responsibility for deciding whether a
particular doctor could perform surgery at the hospital and, if so, what surgery he or
she was entitled to perform and on what conditions. This was the process of
credentialing and privileging surgeons. Ms Lloyd’s evidence was that this was to
ensure that all the safeguards were in place so that surgery was performed safely in
the hospital without risk to the patient. It is the hospital that takes on that
responsibility.
[110] Correspondence between the hospital’s clinical review committee and Dr Broadbent
demonstrated the role of the hospital in monitoring his BPD surgery. On 28 February
2005, Dr Andrew Cary, chair of the clinical review committee wrote to Dr Broadbent
saying that the committee was happy to proceed with the credentialing of this
“challenging surgical procedure” and had determined that they could see no problems
with the performance of the surgery. They requested, however, more detail of his
statistics with regard to his BPD surgery including the morbidity and mortality
associated with the surgery. His response of 14 March 2005 addressed individual
cases of problems that arose post-surgery blaming the problems on the patient or, in
one case, the anaesthetist. His letter said he included a brief audit of the BPD surgery
carried out by him, a couple of articles from recent editions of the Journal of Obesity
Surgery and a draft article for the Royal Australasian College of Surgeons. He also
expressed disappointment with the investigation by the hospital clinical review
committee saying its concerns “could only have been raised out of “gossip and
ignorance”. He asserted there had been breaches of “recognised administrative rules”
in the way the investigation had been carried out.
[111] In his reply of 20 April 2005 on behalf of the clinical review committee, Dr Cary
reiterated his request for an audit which had apparently not been enclosed with Dr
Broadbent’s letter and told Dr Broadbent that he had been allowed to perform BPD
surgery at the hospital but it was appropriate for the clinical review committee to
review the surgery “if a doctor was not permitted to perform a surgical procedure at
one private hospital for whatever reason”.
[112] On 5 May 2005, Dr Broadbent replied enclosing “further copy of the BPD audit” and
saying that he was not allowed to continue surgery at Allamanda Private Hospital
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because the hospital’s head office determined they could not afford indemnity
insurance for this type of operation.
[113] With regard to credentialing, on 2 May 2005, Dr Clive Wellington, the Chief Medical
Officer for Affinity Health wrote to Professor Paul O’Brien, at the Monash
Department of Surgery seeking his advice on the credentialing of practitioners to
perform BPD. He said there was a surgeon at the second respondent hospital keen to
start doing BPD surgery but Dr Wellington had advised against it until they obtained
advice from Dr O’Brien. This letter and its reply was copied to the chief operation
officer, the director of the second respondent hospital and the chairman “National
MAC”.
[114] On 12 May 2005, Professor O’Brien replied saying that BPD surgery was a legitimate
operation which was very effective but because it achieved its effects through
malabsorption leading to long term nutritional problems it needed very careful and
knowledgeable follow up of the patient. Affinity Health should not refuse to accredit
the operation but it was appropriate to impose certain requirements on its
performance: the need for special training, ongoing quality control with monitoring
for at least the first two years to see that there was not an inappropriate level of peri-
operative complications; and a multidisciplinary team in place.
[115] The third condition is significant to this case so I shall set it out in full:
“This is undoubtedly an area of bariatric surgical practice where a
multidisciplinary team is really needed. The patients need to have
more than just ongoing surgical care. There needs to be dietetics
advice, there needs to be monitoring of nutritional status and
monitoring of health status by a physician. There is a minimum,
therefore, for the need for at least those 3 professional groups to be
involved.”
[116] Correspondence ensued between the director of the second respondent hospital and
Dr Broadbent. She told him on 24 August 2005 that the requirement for a general
physician to be involved in post-operative care of the patients was non-negotiable.
She said:
“In the opinion of the Pindara Hospital Executive, the Credentialing
Committee, and Dr Clive Wellington – Chief Medical Officer of
Affinity Health, that the views of Professor Paul O’Brien were valid
and did not hint at any bias against BPD. The recommendations
made by Professor O’Brien were general in nature and have been
upheld by the Credentialing Committee of Pindara Private Hospital.”
[117] Dr Broadbent reluctantly agreed to nominate a physician credentialed to the hospital.
He was then credentialed by letter of 18 August 2005 to perform BPD surgery at the
second respondent hospital with no requirement for a dietician to attend his patients.
He conducted BPD surgery on Ms Shaw on 7 September 2005. He did not involve a
dietician in her care on any of the admissions for which he was responsible. It was
only when Dr Rutherford took over care of her she was seen by a dietician.
[118] It is apparent that the hospital, having taken advice on the conditions which should be
in place for BPD surgery to be conducted safely, failed to put all of those conditions
in place. This was at least arguably negligent and gives rise to a cause of action
against the second respondent.
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[119] There is a further factor which suggests that the applicant should be allowed to
litigate against the second respondent. The first respondent has conceded that there is
evidence to establish that the plaintiff has a right of action against the first respondent
apart from the effect of the defence founded on the expiration of the limitation period.
In Broken Hill Pty Co Ltd v Waugh (1988) 14 NSWLR 360 at 372, Clarke JA, with
whom Kirby P and Hope JA agreed, held in a similar situation:
“According to well recognised principles where a plaintiff, who has
sued multiple defendants one or more of whom may be liable, shows
prima facie that at least one defendant may be responsible, the court
is bound to hear the whole of the evidence before entertaining
submissions by any other defendant that no case has been established
against him. This is so even if the plaintiff has not called any
evidence demonstrating the fault of the particular defendant.
The rationale of the rule, as explained in Menzies v Australian Iron
& Steel (1952) 52 SR (NSW) 6269 WN (NSW) 68, is that if the rule
were otherwise the defendant against whom a prima facie case was
shown might escape liability by addressing evidence to the effect that
the defendant against whom the case had been dismissed was the
party who was actually at fault. Indeed that is what occurred in
Hummerstone v Leary [1921] 2 KB 664, the case cited in Menzies.
Obviously that result would be inimical to the interests of justice.”
[120] This passage was cited with approval by Keane JA in Raschke v Suncorp Metway
Insurance Limited [2005] 2 Qd R 549 at [28] and also applies in the circumstances of
this case.
Prejudice
[121] The next question to be examined is whether the court is satisfied that its power to
extend time should be exercised in this case notwithstanding the allegation by the
second respondent that it has suffered prejudice.
[122] An applicant who satisfies the elements of s 31(2) of the Act is not entitled as of right
to an order. The applicant must still justify the exercise of the court’s discretion in
his or her favour. The principal discretionary ground which might prevent an order
being made to allow such an applicant to commence proceedings outside the
limitation period is prejudice that will be suffered by a respondent if such an order is
made. The onus remains on the applicant to establish that the discretion should be
exercised in her favour. As Keane JA held in HWC v The Corporation of the Synod
of the Diocese of Brisbane at [57]:
“Even where the requirements of s 31(2) have been satisfied, the
burden remains on the applicant for relief to show good reason for
the favourable exercise of the discretion. An applicant who is
unable to show that a fair trial can take place notwithstanding the
delay which has occurred will not discharge that burden.”
[123] The leading case on the effect of prejudice on the court’s discretion is Brisbane
South Regional Health Authority v Taylor [1996] HCA 25. Toohey and Gummow
JJ explained it at 548-549 as follows:
“A material consideration (the most important consideration in many
cases) is whether, by reason of the time that has elapsed, a fair trial is
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possible. Whether prejudice to the prospective defendant is likely to
thwart a fair trial is to be answered by reference to the situation at the
time of the application. It is no sufficient answer to a claim of
prejudice to say that, in any event, the defendant might have suffered
some prejudice if the applicant had not begun proceedings until just
before the limitation period had expired.”(footnotes omitted).
McHugh J held at 555:
“If the action had been brought within time, it would have been
irrelevant that, by reason of the delay in commencing the action, [the
medical practitioner] might have had little independent recollection
of his conversation with the applicant and that the defendant might
have had difficulty in fairly defending itself. But once the potential
liability of the defendant had ended, its capacity to obtain a fair trial,
if an extension of time were granted, was relevant and important. To
subject a defendant once again to a potential liability that has expired
may often be a lesser evil than to deprive the plaintiff of the right to
reinstate the lost action. This will often be the case where the
plaintiff is without fault and no actual prejudice to the defendant is
readily apparent. But the justice of a plaintiff's claim is seldom
likely to be strong enough to warrant a court reinstating a right of
action against a defendant who, by reason of delay in commencing
the action, is unable to fairly defend itself or is otherwise prejudiced
in fact and who is not guilty of fraud, deception or concealment in
respect of the existence of the action.”
[124] It is relevant in this case that the limitation period had only just expired for the BPD
surgery performed on the applicant and had not expired for any of her treatment after
15 October 2005.
[125] The factual basis for Ms Sharp’s opinion is found in her examination of the
comprehensive records kept by the hospital, including the applicant’s medical chart
which includes detailed and extensive notes made by the nursing staff.
[126] In respect of the second respondent’s contention that the application should be
dismissed on the ground of prejudice, the second respondent submitted that nurses
who cared for the applicant at the hospital have only a limited recollection of the
applicant beyond the nursing chart owing to the length of time that has passed since
her admission. All of the nurses relevantly involved in the applicant’s care have,
however, been identified and have provided affidavits to the second respondent.
[127] In particular, two nurses who cared for the applicant at the hospital have provided
affidavits. From reviewing the applicant’s nursing chart, Susan Jackson identified
her writing in the patient’s chart and confirmed that she was involved in the
applicant’s pre-operative preparations. She had some independent recollection of the
applicant and recalled that during her initial post-operative course when Ms Jackson
was involved in her care she appeared to progress well. She was not involved in the
later stages of the applicant’s care. She had no independent recollection of the
applicant’s preparation for surgery save that she was very tall so Ms Jackson can
remember helping her into her operating gown. Her evidence was that her notes on
the applicant reflected a thorough summary of the treatment provided, the
medications dispensed and the nursing care given during the course of her shift.
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Anything of significance to the treatment and care of the applicant would have been
recorded in the notes.
[128] The Nurse Unit Manager, Ms Shirley McKinnon, was also involved in the applicant’s
care during her first admission to the hospital and has a vague independent
recollection of her. In particular she remembers her size and her reaction to a specific
medication, Voltaren. Ms McKinnon did not recall whether she had any other
concerns about the applicant. Her evidence was if she had any concerns she would
have raised them with Dr Broadbent and noted that in her chart. If any of the nursing
staff had concerns about the applicant, she said that they would have raised them with
her and she would have contacted Dr Broadbent and recorded that in the chart
together with any orders made by him.
[129] Ms McKinnon said that any pathology results for his patients were received by fax to
the nursing station and would be reviewed by her as the Nurse Unit Manager. If any
of the results were outside the normal range, it was standard practice to telephone the
doctor to notify the doctor of the results and make a note of that in the records
together with any orders made by the doctor. She agreed in cross-examination that
her notes on the applicant reflected a thorough summary of the treatment provided,
the medications dispensed and the nursing care given during the course of her shift.
She said she would like to think that anything of significance to the treatment and
care of the applicant would have been recorded in the notes. She conceded that
things can be omitted but she was firmly of the view that nothing of significance had
been missed in this case.
[130] There are good clinical reasons for the patient charts being so detailed and
comprehensive. Patients in hospital are nursed around the clock by different nurses
on different shifts and so it is important that all relevant and significant details are
recorded. Nurses cannot be expected to retain any detailed recall apart from what is
recorded in the patient chart. This explains why it is important that comprehensive
notes are kept in the patient chart and no doubt explains why the notes kept in this
case appear to be so comprehensive. It reduces the prospect that the nursing staff will
have to rely on their actual memory.
[131] The applicant submitted that there is no prejudice to the second respondent: that the
failure of nurses to remember the specific details of nursing care is not sufficient
prejudice to conclude that a fair trial can no longer be conducted. In this case the
patient chart is comprehensive and the evidence was that nothing of significance was
missing. Further the material about the conditions on which Dr Broadbent was
allowed to operate is in writing.
[132] There is no doubt that litigation provides difficulties if it is conducted after the
limitation period is past and yet the legislation provides that the court may extend
time. The question is whether the applicant has satisfied me that notwithstanding any
prejudice caused by the delay it is possible to have a fair trial. To do so the applicant
must displace what McHugh J referred to as the general rule in Brisbane South
Regional Health Authority v Taylor at 555, that “actions must be commenced within
the limitation period” which “should prevail once the defendant has proved the fact or
the real possibility of significant prejudice”.
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[133] The factors that persuade me that any potential or actual prejudice is not significant,
that it is possible to have a fair trial and so to exercise my discretion in favour of
extending the limitation period against the second respondent in this case include:
• The limitation period had not expired for any of the treatment provided to
the applicant except for her first admission for BPD surgery and in that case
it had not long expired;
• There are comprehensive records of the applicant’s care including the
detailed patient chart (progress notes and general observations), consent
form, nursing history and surgical discharge summary;
• The applicant had three admissions to the hospital, on the last occasion for
over a month;
• The second defendant has available to it all the nurses relevantly involved in
her care and they have some independent recollection of the applicant;
• The Nurse Unit Manager was adamant that nothing of significance had been
left out of the applicant’s chart;
• The correspondence concerning the conditions on which the first respondent
should have been and was allowed to operate is set out in writing;
• As the matter will be proceeding against the first respondent, it is likely that
many of the matters relevant to the applicant’s case against the first
respondent will be litigated in any event.
Conclusion
[134] The applicant has therefore satisfied the court that she has a right of action against
the second respondent and to exercise the discretion to allow her to proceed against
the second respondent. The period of limitation for bringing proceedings against
the second respondent should be extended to 15 October 2008.
Orders
[135] I will order that the time limit for the commencement of proceedings claiming
damages for personal injuries by the plaintiff against the first and second defendants
be extended to 15 October 2008, pursuant to s 31(2) of the Limitation of Actions Act
1974. I will hear submissions as to costs.
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Official source: https://www.sclqld.org.au/caselaw/QSC/2010/433