The plaintiff was admitted to Canberra Hospital (the hospital)
on 23 September1998 for a vaginal hysterectomy. She was admitted as
a public patient and had been put down for elective surgery by her
treating specialist, Dr Heaton. She was a long term patient of Dr
Heaton. The plaintiff had previously held private health cover,
however, by the time she was admitted for the hysterectomy it had
After the hysterectomy was performed there were post-operative
complications. It subsequently emerged that the plaintiff's
right fallopian tube had prolapsed into her vagina. The plaintiff
was required to undergo a number of invasive and painful procedures
until it was eventually corrected in October 2000. The plaintiff
was required to undergo further surgery in February 2001, which
resulted in the removal of a tubo-ovarian mass.
The plaintiff alleged that all of the complications arose due to
the negligence of the ACT as the operator of the hospital and Dr
Heaton as the surgeon. However, the hospital records showed that
the procedure was actually performed by a registrar, Dr Cree, with
Dr Heaton assisting. Dr Cree was only a level 2 registrar. Dr
Heaton was under the impression that Dr Cree was a level 3
registrar. It was accepted that it is not appropriate for a level 2
registrar to perform such a procedure.
The plaintiff alleged that after the substantial completion of
the procedure the fallopian tube became entangled in the stitching.
The stitches had dissolved over time so it was difficult to tell if
that is in fact what occurred. The expert evidence was that
entanglement could have been an option resulting from poor surgical
The plaintiff's evidence was that, had she known the surgery
would be performed by a registrar, she would have declined the
procedure. The admission form signed by the plaintiff acknowledged
that the hospital would make the decision as to which doctor would
perform the procedure.
The court was satisfied on the balance of probabilities that
while performing the suturing of the wound, Dr Cree inadvertently
caught the plaintiff's fallopian tube in the suture line.
The central issue revolved around Dr Cree's level of
training and experience as at September 1998, and whether the
hospital was in breach of its duty of care to a public patient in
permitting Dr Cree to perform a complex procedure, or alternatively
in holding out to Dr Heaton that Dr Cree was competent to perform a
Dr Heaton gave evidence that he was told by Dr Peak, the
hospital's training supervisor, that Dr Cree was a level 3
registrar. This evidence was accepted. The court found that the
documentation provided to the hospital clearly showed that Dr Cree
was only a level 2 registrar.
Neither Dr Cree nor Dr Peak were available to give evidence. The
court found that their absence as material witnesses was not
satisfactorily explained and, as such, the court was entitled to
draw the inference that their evidence would not have assisted the
case of the defendants.
Ultimately, the court was not satisfied that there is a duty of
care on a hospital to provide a public patient with an express
choice as to who performs the surgery. However, there is a duty to
ensure that it provides patients with suitably qualified staff.
The court found the hospital negligent for holding Dr Cree out
to be a level 3 registrar.
The court was satisfied that based on the expert evidence
required it was entirely appropriate for Dr Heaton to allow a level
3 registrar to perform this procedure under his close supervision,
and that Dr Cree's negligent suturing occurred on the internal
side of the would and therefore was unable to be seen by Dr
The court awarded judgment for the plaintiff against the
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