Le Brun v Joseph - another Appeal lost...

Posted on April 29, 2010 by Julian Johnson

For the 3rd time in so many months, the Court of Appeal has dismissed a Plaintiff's appeal in relation to a medical negligence claim.  This time in the matter of Le Brun v Joseph + Or [2010]. WASCA 52, delivered on 24 March 2010.

This decision follows on the heels of the Court of Appeal's decision in McLennan v McCallum [2010] WASCA 45, in which I acted for the Appellant on Appeal [but not at it's initial trial]. 

In Le Brun, Mr Le Brun, by his mother (because of his disability, he could not bring the claim in his own right), appealed against the decision of District Court Judge McCann, who at the case's initial trial had found negligence on the part of GP Dr Joseph and Kalgoorlie Hospital, but was not satisfied that such negligence had caused any loss and consequently dismissed the claim.

The case arose from alleged failure on the part of the Defendants, who were a hospital and general practitioners, to further investigate headaches experienced and reported by Mr Le Brun. 

Mr Le Brun's case was if further investigations had occurred (either CT or consultant specialist review) his undiagnosed brain abnormality, an Arteriovenous Malformation [AVM] would have been identified prior to its rupture, and treatment therefore would/may have avoided the catastrophic disability he suffered following such AVM's rupture. 

Interestingly, the trial judge (and on appeal this was supported) found that it was likely there was not actually any connection between the AVM and Mr Le Brun's headaches.  This raised an interesting legal issue which was not decided on the appeal (McLure P averted to it, but confirmed it did not need to be decided). As indicated below, it was accepted that if a CT scan had been performed to investigate Mr Le Brun's headaches, this would, regardless of whether they were connected or not, have probably lead to identification of the AVM.

As stated above, Judge McCann was with Mr Le Brun in finding that both the hospital and Dr Joseph ought to have arranged a CT scan and so were negligent in not doing so.

The "problem" with Mr Le Brun's case was that Judge McCann was not satisfied that Mr Le Brun, had he undergone such investigation and therefore probably had his AVM diagnosed, would have undergone any treatment prior to such AVM's rupture, which would have avoided such rupture and its catastrophic consequences.  In other words, Judge McCann was satisfied there had been a lack of care, but not that this had made any difference to the outcome.

Judge McCann found, based on the (it seems to me compelling) evidence of Dr McAuliffe and others, that had Mr Le Brun undergone a CT scan and his AVM been diagnosed, he would have been recommended to undergo radiosurgery of the same.  It was common ground that if this recommendation had been followed, it would not, by the time of the rupture, have taken place and so the rupture would not have been avoided.  

In order for there to have been any likelihood of treatment altering Mr Le Brun's outcome, he had to, for some reason have elected to undergo urgent microsurgery, rather than radiotherapy [confirmed on appeal - see paragraph 138].  The evidentiary problem was that Mr Le Brun could put forward no convincing expert evidence to counter Dr McAuliffe and others evidence that this would not have been at all likely to have been the path recommended. Dr McAuliffe and the other witnesses relied upon by the defendants were particularly compelling, because they were likely to have been the very specialists who would have been involved in Mr Le Brun's care and the providers of advice to him as to his options etc, had his AVM been diagnosed prior to rupture.

The Court of Appeal lead by Newnes JA concluded that McCann J's analysis and findings referred to above were correct. On my reading of the decision, no point of significant principle was relied upon in this respect.  The appeal court's decision involves a careful examination of the evidence and explanation of their reasons for agreement with the trial judge.  The only intriguing comment is at paragraph 183 raising the question of whether the High Court's decision in Imbree, should now alter the trial judge's finding that a lower standard of care should be expected of a junior doctor, than had she been more experienced.

Comment

This remains a decision which logically I am uneasy about.

The health professionals were negligent and because of this, the AVM was not diagnosed before it's rupture.

Although compelling as to what was the most likely path, had such diagnosis occurred, the evidence of Dr McAuliffe et al could not exclude the possibility (not probability) that the CT scan may have shown something that would have lead to advice to undergo microsurgery, rather than radiosurgery and so avoided the outcome.  

One expert witness confirmed that he felt there may be signs on the post-rupture imaging that may have suggested narrowing that may, if present pre-rupture have lead to different recommendations being made.   Therefore, although it was most likely that no evidence of the impending rupture would have shown up on CT/MRI etc, there was still a chance something may have been evident.  After all, we do know that within a month of when this CT should have been performed, in July 1999, it did rupture.

It does seem to me harsh that in such a catastrophic outcome, the negligent parties can 'exploit' or at least benefit from the unknown (which results from their lack of investigation) and 'avoid' liability through an exercise in probabilities, because the certain answer that better care would have given, is lost.  Should the culpability of the defendants not in some way feed into resolution of questions of this nature, when their breach causes the uncertainty in the first place? 
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When Special Circumstances are not "Special" (in my view)

Posted on October 18, 2009 by Julian Johnson

As is well known, I act for Billy Wright, the 61 year old aboriginal man, who is the Plaintiff in a medical negligence claim against Broome Hospital in relation to medical care he received at such hospital in July 2004.

Billy's case arose from his attending such hospital with an acute onset of severe abdominal pain, which he identified when he awoke on 3 July 2004.  After being kept for observation for an hour or so, Billy was sent home.  He was taken back to hospital about 40 hours later by family and by this time was acutely unwell and at danger of not surviving, due to septic shock/sepsis.

Billy's claim proceeded to trial before Judge Fenbury of our District Court, with days of hearing in Broome and Perth late last year and early this year.

Pleasingly, Judge Fenbury found in Billy's favour, concluding the hospital had been negligent in its care of him and awarded him damages when he delivered his decision in late March 2009.  Judge Fenbury found that the hospital ought to have kept Billy for observation and further investigation and not sent him home when they did (see Wright -v- WA Country Health Service [2009] WADC 46) .

The hospital have appealed, though not in relation to the finding it was negligent, only as to Judge Fenbury's finding that such negligence caused harm to Billy, through progression of his illness while he was at home (though this point does not seem, with respect, to have been properly appreciated by Justice Newnes, see his summary of the appeal at [5] of the decision referred to below).

On 9 October 2009, argument occurred as to whether the hospital should pay Billy some or all of his compensation, pending hearing and determination of his appeal.

Billy had explained that he wished to utilise a part of the damages he has been awarded in order to purchase a "new" vehicle (estimated at a cost of $25,000) to transport his ill wife, who requires regular 3 times per week dialysis treatment, from their remote community home, to Derby, which is where such treatment is provided.

The well accepted rule is that generally a successful party should be entitled to be paid damages they are awarded, even if an appeal is lodged.  It is accepted that 'special circumstances' are needed to be shown for the unsuccessful party to avoid such obligation to make payment.

After hearing argument on 9 Oct 09 Justice Newnes determined that the hospital should not be obliged to make payment, until (unless) the appeal is decided against it (WA Country Health Service -v- Wright [2009] WASCA 177).  Despite the 'special circumstances' test being accepted by the hospital and Justice Newnes, he concluded that it should not be obliged to make payment, because if it did, there was some danger that it may not ultimately receive back such funds from Mr Wright or if it did, this may be over a period or involve inconvenience.

Interestingly, contrary to the submissions put before him, that recognised that if a discretion to grant a stay arose, this involved a question of the 'balance of convenience,' Justice Newnes described the test as tougher from Mr Wright's perspective.  He put it at one point as being whether not requiring payment would "impose unreasonable hardship" on the party who had won at trial (in this case, Billy) (see at [11])..

Ultimately Justice Newnes concluded (though there was no evidence before him to this effect) that there was likely to be a significant loss on a resale of the vehicle Billy intended to purchase and his modest financial circumstances were such that repayment of any balance would take a long time (see at [17]).  For this reason he refused to require the hospital to make payment of any monies at this time.

This is a very tough decision in my view.  In no way is the fact Billy is poor, a 'special circumstance.'  Many, many clients I have and do represent come from a poor socio-economic background.  That no obligation to pay arises in this case, suggests that nothing special is in fact required.  It seems, if Justice Newnes is right, that if a poorly off plaintiff succeeds at trial, a wealthy defendant (or its insurer) can avoid making any payment, if it appeals, until after such appeal is completed.  It can do this if it can show any chance that repayment of the money to be paid may be other than absolutely straightforward.

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Juengling -v- Wells - anaesthetic intubation + aspiration

Posted on August 14, 2009 by Julian Johnson

 

The Court of Appeal delivered its decision in the Appeal concerning this matter on 17 July 2009. Unfortunately for the Plaintiff, the anaesthetist’s Appeal was upheld with a re-Trial being ordered.

Justice Newnes delivered the lead judgment. Justice Miller agreed with him. Justice McLure was in minority. She did not consider a re-Trial should be ordered and would simply have dismissed Ms Wells’ claim entirely.

Unfortunately, from a reading of Judge Mazza, the original trial judge’s, reasons for his initial finding in favour of Ms Wells, it was clear this Appeal had substantial prospects of success. In particular, Judge Mazza for some reason appears to have mistakenly believed that because Ms Wells had been administered intravenous fluids, this increased the likely volume of fluid in her stomach. This seems a fairly straight forward "biology" error on the Trial Judge’s behalf.

The facts in the case were that Ms Wells was admitted to hospital in January 2004 with an acute distended abdomen. Dr Couch, a surgeon, diagnosed a possible loop small closed bowel obstruction for which he recommended an emergency laparotomy. No issue was taken with this assessment of the situation. 

Dr Juengling was the anaesthetist providing Ms Well’s care for her laparotomy. 

Because of drowsiness on Ms Wells’ behalf and her consequent inability to sit up, Dr Juengling was unable to undertake the standard test for assessing her airway (a Mallampati assessment) before administering the anaesthetic. 

Dr Juengling used an anaesthetic technique called rapid sequence intubation. Ms Wells was difficult to intubate and instead of inserting the endotracheal tube into her trachea, Dr Juengling inserted it into her oesophagus. This caused regurgitation of stomach contents which were then aspirated into Ms Wells’ airway.  All appropriate action was taken when this occurred, however the aspiration of acidic stomach contents into Ms Wells’ lung caused some damage. 

Dr Juengling conceded he was aware of the risk of aspiration of stomach contents in the circumstances. His evidence was that the two steps he took to reduce this risk were his use of rapid sequence induction and the application of cricoid cartilage pressure to seek to block the oesophagus.  

Unfortunately the endotracheal tube was inserted into the oesophagus past the cricoid pressure point which was why this precaution did not avoid regurgitation and aspiration in Ms Wells’ case. 

At Trial there was a conflict of evidence as to whether it was negligent for Dr Juengling to have inserted the tube past this point of pressure.  Judge Mazza accepted evidence that this in itself was not negligence (remarkably, the two expert anaesthetists disagreed vehemently as to how easily such a problem could occur and how much force was required to get past the point of cricoid pressure). 

Judge Mazza’s decision in favour of Ms Wells at Trial was based on his finding that, in the circumstances, Dr Juengling ought to have decompressed her stomach by the use of a nasogastric tube before intubation. 

Judge Mazza accepted that on the expert evidence, use of a nasal gastric tube was not universally required.  It was an issue of whether there was some factors increasing the risks of aspiration in Ms Wells’ case, that ought to have been appreciated and so ought to have lead to this further precautionary step. 

As stated above, unfortunately Judge Mazza’s conclusion that this precaution ought to have been taken in Ms Wells' case was flawed because of his erroneous reliance on IV Fluid intake as suggestive of an increased risk that Ms Wells’ had a full stomach. 

On appeal, Justice McLure at [R56] concluded that the Trial Judge’s finding of negligence on Dr Juengling’s behalf also depended upon a conclusion it was most unlikely there would be any solid content to Ms Wells’ stomach contents. Justice McLure concluded (though it seemed to me this was debatable) that the evidence was that use of a nasogastric tube would only work if “it was most unlikely there would be any solid matter in her stomach”.  On this basis Judge McLure felt the finding of negligence had to be set aside.

It seemed to me the evidence was less clear-cut and the suggestion was more that if stomach contents largely consisting of solids, the procedure would be likely to be ineffectual because the tube would block (and it appears there was evidence to suggest this would not necessarily be evident).  

Although Justice McLure did not deal with the topic extensively, from a legal principle perspective, her most important comments were at paragraphs [59 – 61] where she seemed to in effect, though perhaps inadvertently, reintroduce a Bolam approach (though correctly identifying that this not been applicable in Australia since the High Court's decision in Rogers v Whittaker). 

Her Honour did this by suggesting that apart from establishing foreseeability of the risk of aspiration and that measures to avoid the risk were practical and likely to be effective, for negligence to be established, the further question had to be answered “of whether the medical practitioner’s failure to eliminate or reduce the relevant risk showed a want of reasonable care and skill in the provision of anaesthetic services” [59]. As she explained at [60], this seemed to be involving a question of whether what had been done was in accordance with contemporary anaesthetic practice.  This suggests what is "reasonable" is considered with a view to what is done in practice, rather than 'why,' which I would have thought the most important issue.  

Because these comments were not critical to her conclusions, the point was not developed.  It will however be interesting to see whether this line of reasoning is developed by Justice McLure and other members of the Court, particularly given the statutory modification of the standard of care by the Civil Liability Act which has reintroduced a "modified Bolam" test. 

 
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