I admit that I am partisan, when it comes to comment upon cases that I have been involved in. Read the following bearing this in mind. As you will gather, they are not 'rose-coloured' glasses I see this through..
I have previously posted in relation to the case of Wright v WA Country Health Services (effectively Broome Hospital), in which I have acted for Billy Wright.
The final (now sad) chapter in this case came with the Court of Appeal's decision yesterday, upholding the hospital's appeal and dismissing Billy's claim.
The Court's conclusion was that the evidence at trial did not justify the conclusion that Billy would have been better off, had his infection which lead to his initial attendance at the hospital, been treated at such hospital, rather than his being at home.
The result left by this decision is as follows, in terms of the facts of the case:
1) Billy was negligently treated by hospital staff when he attended Broome Hospital's A+E department, following the onset of severe abdominal pain. He should not (as he was) have been discharged after being kept for observation for an hour or so, when he continued to experience significant pain, the cause for which had not been identified.
The hospital did not appeal against this conclusion by the trial judge (it could not).
2) Had Billy been kept at the hospital (as he should), within an hour or so, it would have been identified that his condition was deteriorating. He developed rigors and probably at such point had a temperature, indicative of infection. Presumably, had this been identified, tests would have been done to identify the cause for this infection and (initially broad spectrum) antibiotics would have been commenced.
Again the hospital did not (and could) appeal against this conclusion.
3) Billy's condition deteriorated over the following 30+ hours, such that when his family took him back to Broome Hospital, he was in critical condition and at risk of dying.
The hospital did not appeal this, because Billy's condition when he re-attended the hospital is self-evident from the records.
All of the above seems reasonable. The 'catch' comes at the next step....
4) The bug responsible for Billy's illness was never identified. Blood cultures and x-rays taken after he returned to the hospital confirmed his critical illness but not its cause. This is not remarkable. Evidence at trial was that this can commonly occur. Further, perfectly understandably given they were trying to save his life, staff at Broome Hospital had given Billy large doses of IV antibiotics when he returned to Broome Hospital, which it was accepted could explain why the bugs responsible for his infection were not identifiable.
Here is the killer step....
5) Because such bug could not be identified, the hospital's insurer argued (and this was accepted by the Court of Appeal) that it could not be proven that Billy would necessarily have been better off had he been kept at the hospital under observation, rather than being discharged, at his initial visit. In other words, despite the fact they ought to have seen his progressing symptoms, if they had done the right thing and kept him at hospital, the view taken is that it could not be proven that any treatment at the hospital would have been effective and would have made any difference to his condition, compared with its development while he lay in bed at home.
Quite apart from the difficulty of this outcome as a matter of common sense (in my humble opinion) such conclusion also ignores the fact that uncertainty as to the identity of the responsible bug was at least contributed to by the hospital's negligence in the first place. Had they done what they should have, kept Billy for observation and identified his deterioration within an hour or so, it seems to me that the relevant bug must have been a good chance of being identified by blood test etc at that time or at least, the further information as to Billy's progressive symptoms that would have been available would have assisted in identifying the most likely cause. The problem of proving the type of bug present was directly a consequence of the hospital's negligence.
Despite my putting this last point to the Court of Appeal during argument - that this link between the hospital's negligence and any uncertainty as the bug's identity should tend towards a conclusion in BIlly's favour, the reasons for the Court's decision are silent on the point.
All in all a bitter outcome for my client and I. My client, understandably in my view, has difficulty accepting the Law's reasoning as achieving a just result....
