ACT Court of Appeal overturns finding that anaesthetist is not negligent for injuries caused by broken syringe during caesarean procedure.
In issue
The ACT Supreme Court, Court of Appeal considered a number of issues on appeal of a judgment of the Supreme Court of ACT. The Court of Appeal considered whether the primary judge erred in relying on a witness’ evidence to make certain factual findings, and whether section 5O of the Civil Liability Act 2002 (NSW) was appropriately applied.
The background
On 14 February 2020, the appellant attended Canberra Hospital for a planned caesarean section. Prior to the procedure, a spinal needle inserted by Dr Abeygunasekara (anaesthetic registrar) for general anaesthesia broke in her spine. Following a number of unsuccessful attempts (the specific number being disputed), consultant anaesthetist, Dr Stephens took over, but the needle broke in the appellant’s back. The needle was surgically removed, and the appellant went on to successfully deliver a healthy baby the same day. The appellant claimed that she suffered nerve damage following the incident which caused a number of symptoms.
At the original trial, the judge relevantly accepted Dr Stephens’ version of events, namely, that Dr Abeygunasekara had attempted to insert the needle three times (twice at L3/L4 and once at L4/L5) before returning the needle to the tray which she then attempted to insert. However, the claim was dismissed because negligence had not been established.
The issues on appeal
There were four main issues to be considered on appeal which we discuss below:
- Whether the primary judge erred in accepting the evidence of Dr Stephens to find that Dr Abeygunasekara had used the spinal needle on three occasions when she took over the procedure?
- Should Dr Stephens have replaced the spinal needle before her own attempt to administer the spinal anaesthetic?
- Did the trial judge erroneously apply s 5O of the Civil Liability Act 2002 (NSW)?
- Whether the failed administration of the spinal anaesthetic by Dr Stephens cause the appellant to suffer a neurological injury, namely radiculopathy?
The decision on appeal
On appeal, the Court agreed with the primary judge’s view that there was a sufficient foundation for Dr Stephens’ evidence to be preferred over that of Dr Abeygunasekara. This was for a number of reasons, including that Dr Stephens had made contemporaneous notes of the incident. Further, the Court agreed with the primary judge that no Jones v Dunkle inference should be made from the hospital’s election not to call the doctor who removed the broken needle to give evidence.
The Court of Appeal dealt with issues b) and c) together. The primary judge found that Dr Stephens (and by extension, the defendant) had discharged the duty of care to the appellant by exercising reasonable care. However, the Court of Appeal was critical of the primary judge’s failure to closely analyse the expert evidence or apply all factors in sections 43(2)(b)-(c) of the Civil Law (Wrongs) Act 2002 (NSW) particularly considering whether Dr Stephens took appropriate precautions against the risk considering the likely seriousness of the harm and the burden of taking precautions to avoid the risk.
In particular, the Court of Appeal commented that the primary judge failed to engage in his own assessment of whether when re-attempting the general anaesthetic, it was reasonable for Dr Stephens not to use a fresh needle. Rather, the primary judge summarized the expert evidence and relied on this alone to determine whether Dr Stephens acted in accordance with accepted competent professional practice, despite there being a number of ‘grey areas’ within the expert evidence. The Court of Appeal commented that the primary judge was required to make their own decision as to what a reasonable anaesthetist in Dr Stephens’ position was required to do.
In considering this, the Court of Appeal noted that further regard should have been paid to the factors set out in sections 43(2)(b)-(c) of the Civil Law (Wrongs) Act. In particular, the Court of Appeal noted that a broken needle could cause a serious harm, including significant disability. Further, the use of a fresh spinal needle was a low cost and convenient precaution. Finally, there was no urgency and no time constraints on Dr Stephens in performing the general anaesthetic. Accordingly, the Court of Appeal found that given the seriousness of harm if it occurred, the low burden to take precautions to avoid harm, and the social utility of properly administering anaesthetic, a reasonable anesthetist in position of Dr Stephens would have taken the precaution of using a fresh spinal needle. The Court of Appeal therefore found that Dr Stephens had breached her duty of care by failing to use a fresh needle.
Finally, the Court of Appeal preferred Dr Patrick’s evidence in relation to causation, and disagreed that he was acting as an advocate, and therefore found that the appellant’s radiculopathy was caused by the broken spinal needle and the negligence of the defendant. The matter was remitted to the Supreme Court for the assessment of damages.
Implications for you
This case demonstrates that a court will strictly consider the factors set out in ss 42-43 of the Civil Law (Wrongs) Act when deciding whether a practitioner has breached their duty of care. This is even so if the expert evidence supports that the practitioner complied with competent professional practice pursuant to the Civil Liability Act. Accordingly, it is crucial for health practitioners and medical professionals in practice to consider if any viable precautions against risk exist, particularly where there is a serious risk of harm.
