On 21 June 1997 the plaintiff, a paediatrician, was bitten by 2 dogs during a home visit to a patient. The plaintiff was treated by the defendant surgeon, who recommended that the plaintiff have emergency surgery to clean and repair a wound on the right leg. The plaintiff consented to the procedure involving a skin graft and the procedure was performed later that same day. The treatment involved inspection and cleansing of the wound and inserting a skin graft with staples. The wound was sutured and the leg immobilised. A narrow spectrum antibiotic was prescribed.
On 23 June 1997 the plaintiff was discharged. A further consultation with the defendant was scheduled for 7 July 1997.
On or about 30 June 1997, the plaintiff began to experience severe pain in the wound. He attempted to contact the defendant but was unable to do so. The plaintiff was eventually treated by a general practitioner and investigations revealed that the plaintiff was suffering from a pseudomonas infection of the wound. The wound was further cleansed and debrided and the plaintiff was further treated with bed rest, dressings and the administration of broad spectrum antibiotics. A second skin graft was later performed by a different surgeon and the plaintiff was later diagnosed with complex regional pain syndrome (CRPS).
The plaintiff brought proceedings against the defendant for damages for negligence.
The Decision at Trial
The trial judge found that the plaintiff had not established negligence and made provisional findings that the defendant's actions did not cause or materially contribute to complications with the wound. Quantum was agreed between the parties, apart from general damages. The trial judge provisionally assessed at $450,000.
The plaintiff appealed against the trial judge's findings on negligence and causation and the defendant cross appealed on certain findings and the trial judge's assessment of general damages.
The Decision on Appeal
The Court of Appeal noted that the competing expert evidence led at trial proceeded on varying factual assumptions and the experts were, in some instances, not directly engaged to respond to a contrary view expressed by other experts. The Court of Appeal expressed the view that it may have been beneficial for the expert witnesses who held contrary views to have given evidence concurrently.
The plaintiff's grounds of appeal were essentially that the trial judge erred in:
- finding that the defendant's decision to prescribe Flucloxacillin (a narrow spectrum antibiotic) was reasonable in the circumstances;
- her conclusions regarding the defendant's closure of the wound on the day it occurred and in deferring any review of the wound for 2 weeks; and
- finding that even if there was negligence with respect to the closure of the wound and the delayed review, the prescription of Flucloxacillin did
The plaintiff's case, including the expert evidence, related to the steps the defendant should have taken to guard against infection from pathogens likely to be contained in the mouth of a dog. The Court of Appeal concluded, however, that the trial judge was correct in finding that the pseudomonas infection did not arise from the presence of pseudomonas in the dog's mouth, but rather was more likely to have begun 3 or 4 days after the dog bite occurred, possibly from bacteria present on the plaintiff's own skin. Pseudomonas infection is a well known possibility with respect to all wounds. The expert evidence of the parties was directed to whether the defendant should have prescribed a broad spectrum antibiotic for treatment of possible infection from the dog bite, rather than from other sources.
The Court of Appeal noted that the only evidence as to whether it was reasonable to prescribe Flucloxacillin or a broad spectrum antibiotic came from the defendant himself. His evidence was that broad spectrum antibiotics were not available without a positive wound swab that demonstrated the presence of pseudomonas or that it was not permissible to prescribe appropriate broad spectrum antibiotics as a preventative measure. While one aspect of the defendant's evidence in this regard was demonstrated to be incorrect, in the circumstances, it was not surprising that the trial judge had found on this point for the defendant and the Court of Appeal considered that the trial judge was entitled to do so on the basis of the evidence.
The Court of Appeal noted that there was no expert evidence at all regarding appropriate surgical treatment to avoid the infection that occurred. All the evidence was directed towards infection from the dog bite. The trial judge found that it was not negligent on the part of the defendant to have closed the dog bite immediately, rather than leaving it open for some time. There was expert evidence that this was long standing practice in Australia, provided the wound was adequately cleaned. In any event, the dog bite was not the source of the infection.
As for the delayed review, the only expert evidence on that issue was that there was some risk of disturbing the skin graft if the dressing was taken off the wound earlier than one week and that it was appropriate to have left a review for the time that occurred. In the circumstances, it was open to the trial judge to find the defendant's decision to review the wound in 2 weeks was reasonable.
On the causation issue, the Court of Appeal concluded that the trial judge was correct in assessing the expert evidence as being of the view that in the case of the plaintiff, it was likely that the prescription of a broad spectrum antibiotic, instead of Flucloxacillin, would have made no difference to the development of pseudomonas infection. Pseudomonas is an aggressive, opportunistic organism which can often be resistant to even appropriate broad spectrum drugs. There was evidence that a pseudomonas infection was found in the wound even after aggressive anti-pseudomonas treatment.
The Court of Appeal considered that the award of general damages, although high, was not so disproportionate as to require appellate intervention.
The appeal and cross appeal were dismissed.
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