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.