A patient alleged that they suffered spinal injuries after their hospital bed collided with a wall while they were being wheeled to another department by hospital staff members. Can a plaintiff shortly out of spinal surgery overcome their evidential burden to establish that a 'minor' collision after the surgery caused a spinal injury?
In issue
- This case revolved around the resolution of a factual issue of whether a patient’s alleged collision with a wall, when in transit through a hospital in a wheeled bed, caused a spinal injury.
The background
In 2015 the plaintiff suffered a back injury which worsened over the following years. In May 2020 the plaintiff underwent a surgery for an L4/5 posterior lumbar fusion, during which an osteophyte was dislodged. On 17 July 2020 the plaintiff was admitted to the defendant hospital for an operation on his back to remove the osteophyte.
Following the operation, the plaintiff was wheeled in his bed between the radiology department and intensive care unit (ICU) of the hospital to have a CT scan. One member of staff pushed the bed from the head and the other guided the bed at the foot. They moved the bed at typical walking pace. The plaintiff alleged that, when returning to the ICU, the staff member at the foot of the bed let go of the bed in order to open a door and the end of the bed struck the wall to the side of the door. The plaintiff claimed the impact caused his legs to collide with the footboard and that he felt immediate pain and numbness which worsened over the next hour or so.
On 23 July 2020 a piece of bone graft material was found under the plaintiff’s left L5 nerve as it left the foramen.
The decision at trial
Resolution of fact – did the collision cause the plaintiff’s alleged injury?
The experts instructed by the parties agreed that damage to the L5 nerve was caused by the nerve being impinged upon by the bone graft fragment. There was conflicting evidence about the cause of the fragment’s dislodgement. The plaintiff claimed the collision occurred (and a member of the defendant’s staff agreed) and that he experienced immediate pain. The defendant submitted that the force of the collision was minor and did not cause the alleged injury. Noting their estimates of the forces involved and the likely resistance of the graft to pressure, the medical experts offered differing opinions as to whether the collision caused the dislodgement of the bone graft fragment. The judge ultimately resolved the issue in favour of the plaintiff (in finding the collision likely caused the graft to dislodge) in circumstances where the plaintiff complained of a new and different pain after the collision, the plaintiff had immediately elevated electromyography studies (tests measuring the electrical activity of nerves and muscles) indicating a new nerve problem, and the experts generally agreed that when the graft impinged upon the nerve it would have caused significant pain.
Application of law
Following the findings of fact, the court found that the risk of harm in moving patients in beds within a hospital requires care to be taken. The risks were not far-fetched nor fanciful and the kind of harm which may befall physically vulnerable patients was not insignificant. There was also a low burden of taking precautions against this harm.
Quantum
As a result of the incident, the plaintiff had significant back problems and a chronic severe adjustment disorder. The plaintiff, aged 50 at the time of the incident, was unlikely to return to work and he required 5 hours of gratuitous care every week. The judge made a 30% discount to damages because the plaintiff’s back was already ‘fragile’ at the time of the incident, and there was a chance he may have become disabled and unable to work notwithstanding the defendant’s negligence.
The court therefore found in favour of the plaintiff and awarded damages of $583,711 plus costs.
Implications for you
This decision is a reminder for all hospitals of the importance of adequate risk management protocols, and training of staff, in transporting and mobilising patients in and around their facilities.
Updated 26 March 2024: On 15 March 2024, the NSW Court of Appeal dismissed an appeal in relation to various liability findings, but allowed the appeal relating to the assessment of future economic loss and medical expenses, with the result that total damages were reduced to approximately $350,000.00
Graham Cleary v Health Care Corporation Pty Ltd t/as Wollongong Private Hospital [2023] NSWDC 263
