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Hospital Appeal Reduces Damages in Medical Negligence Case

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Health Care Corporation Pty Ltd t/as Wollongong Private Hospital v Cleary [2024] NSWCA 57 (NSW)

Introduction

On 15 March 2024, the New South Wales Court of Appeal (COA) determined an appeal brought by the Health Care Corporation Pty Ltd as Wollongong Private Hospital (HCC).

The COA dismissed several of HCC’s contentions, however HCC were successful in challenging several heads of damages, which resulted in a reduction in the total damages awarded from $583,711 to $350,187.60.

Facts

In 2023 the District Court of New South Wales awarded damages to a patient (Mr Cleary) after finding that HCC had negligently caused him serious injury during his post operative stay at Wollongong Private Hospital.

Mr Cleary sustained a spinal injury to L4/L5 during his employment in 2015. After several unsuccessful operations in the proceeding years, further surgery was recommended and then undertaken on 17 July 2020.

The day after surgery, Mr Cleary was taken from ICU to Radiology for a CT scan in his bed by two nurses. When he was being returned to the ICU one of the doors that opened inwardly into the ICU was required to be held manually open, as the magnet designed to hold the door open was malfunctioning.

The bed in which Mr Cleary was being wheeled collided with a wall, this impact injured his back with immediate resulting pain. He gave evidence that “within an hour” of his return to the ICU he started experiencing significant pain down his left leg, and his foot started going red.

Resulting injury

The primary judge accepted (on the evidence) that the injury was a result of damage to the L5 nerve.

Mr Cleary underwent further surgery on 23 July 2023, however this did not improve Mr Cleary’s symptoms. Following several other non-surgical interventions, Mr Cleary’s injury did not improve, and the injury was deemed permanent, resulting in continued left leg and back pain, numbness, and an altered sensation in his left leg.

Issues
Reliance on Mr Cleary’s accounts

The first issue primarily pertains to HCC’s contentions that the primary judge erred by predominately relying on Mr Cleary’s account of the event in which he was injured.

The COA reviewed the material presented in the primary trial and ultimately dismissed HCC’s contentions with the following reasoning:

  • HCC had drawn attention to inconsistencies in Mr Cleary’s recollection of events; however, the COA found that regardless of Mr Cleary’s imprecise recollection of certain matters leading up to when the bed hit the wall, such as corridor parameters and exact route, it was acceptable that the primary judge accepted his evidence in regard to the bed hitting the wall, and that there was consistent evidence that there was direct contact between the end of the bed and the wall. And the ambiguity about the precise angle of impact, in which “relevantly impact on the evidence Mr Cleary gave about what happened when the bed impacted with the wall and, more importantly, what happened to him on impact.”
  • HCC had challenged the primary judge’s finding that the impact of the bed was not minor or small; and that this was a result of a undue rejection of evidence; however, the COA identified that the primary judge had correctly relied on evidence that “the bed was moving at a walking pace or perhaps slowing a little when it hit the wall” in her reasoning and therefore had not rejected relevant evidence.
  • HCC had also contended that the primary judge’s consideration of certain evidence provided by a nurse was unfairly characterised; rather, the COA identified that the primary judge had (acceptably) put more weight on contemporaneous medical records, which are considered the more reliable source of evidence.
Negligence

HCC’s submitted that negligence under section 5B of the Civil Liability Act 2002 (NSW) had not been made out, contending that (among other contentions), the risk was not foreseeable.

The COA provided that the foreseeability of risk test had been met by the primary judge, who had concluded that it was reasonably foreseeable that a patient having recently had back surgery could be seriously injured if their bed collided with the wall. And stopping the bed before letting it go to open the door was a precaution that could have been easily achieved, making it a precaution that a reasonable person should have taken.

Causation

HCC submitted that the overwhelming weight of the evidence did not support the primary judge’s findings on HCC being liable, rather that the evidence overwhelmingly pointed to Mr Cleary having suffered the injury before the incident.
The COA considered the expert evidence at the primary trial which provided that it was possible the incident, as alleged by Mr Cleary, displaced the bone fragment, which ultimately caused the injury.

Moreover, the primary judge had relied on contemporaneous medical records, among other evidence presented at the primary trial, that Mr Clearly did not have L5 pain in any substantial way before the collision with the wall.

The COA determined that the primary judge’s findings was supported by the evidence and therefore, the judge was open to being satisfied on the balance of probabilities that HCC’s negligence caused or materially contributed to Mr Cleary’s injuries.

Damages

Mr Cleary’s award for damages was reduced from $583,711 to $350,187.60 based on a series of challenges made by HCC, in addition to concessions made by Mr Cleary.

The most substantial concession being that of future economic loss which was reduced from $214,174 – 30% to $Nil.

Future medical expenses were also reduced based on HCC’s submission that a $30,000 buffer amount awarded referred to ongoing psychiatric or psychological support expenses; yet there was no suggestion in the evidence that the Mr Cleary’s workers compensation insurer would not meet those expenses.

In similar reasoning, future equipment damages awarded were reduced from $15,000 – 30% to $Nil based on the likelihood that Mr Cleary’s worker compensation insurer could bear the costs.

Compliance Impact

This matter highlights that if a level of ambiguity surrounding the circumstances of an injury exists, the court can make reasonable inferences based on the evidence, including reliance on notes completed by workers around the time of the injury, to arrive at a conclusion on liability. In consideration of this, medical workers should be mindful that all incidents, regardless of if they are perceived as minor at the time, should be documented where possible.

In addition, as a malfunctioning magnet precipitated events that resulted in an injured patient, it is important that organisations regularly maintain their premises to reduce the chance of incidents occurring.

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For further information please contact the Health Legal and Law Compliance team via our contact page here.