A hospital's duty of care to a patient is independent of
the duty a visiting medical officer (VMO) owes to a patient, and so
attendances by the VMO does not discharge the hospital's duty
Nurses need to ensure that all necessary observations are
properly recorded to ensure that medical intervention occurs
Nurses are also required to act upon "red flags" in a
patient's clinical course, which includes call on the
hospital's medical emergency team (MET).
Any post-operative clinical pathway must be adhered to, and a
new pathway created if the original pathway expires.
If a party does not call its own witnesses to give evidence as
to the events giving rise to a claim, then the Court will infer
that those witnesses' evidence would have been unhelpful to
that party's case.
Liability was apportioned between the VMO and the hospital on
an 80/20 basis in favour of the hospital.
Mrs Colleen Stefanyszyn underwent an elective vaginal
hysterectomy on 1 December 2008. The surgery was performed by Dr
Brown as a VMO at the Newcastle Private Hospital.
During the operation, a loop of suture material was
inadvertently looped around Mrs Stefanyszyn's bowel.
By 3 December, Mrs Stefanyszyn was vomiting faecal matter. Dr
Brown diagnosed a post-operative ileus.
By 5 December, Mrs Stefanyszyn continued to vomit faecal matter.
Dr Brown prescribed intravenous fluids and nil by mouth.
According to the clinical pathway of Mrs Stefanyszyn, she should
have been discharged on 5 December. Despite this significant
negative variance in Mrs Stefanyszyn's anticipated clinical
course, no further clinical pathway was implemented as the original
clinical pathway required.
No investigations were ordered by Dr Brown, who by that time had
apparently become fixated on the diagnosis of post-operative
By 9.20 pm on 5 December, Mrs Stefanyszyn's oxygen
saturation levels were abnormally low at 92%, and she was markedly
depleted of fluids and electrolytes.
At 4.00 am on 6 December, Mrs Stefanyszyn had another large
vomit. At 5.00 am, she again vomited with significant aspiration of
vomit which resulted in her death.
Mrs Stefanyszyn's husband and two daughters sued Dr Brown.
Dr Brown admitted liability and those claims were settled. Dr Brown
then cross claimed against the hospital claiming contribution from
the hospital for on the basis it was negligent to the extent of one
The hospital denied liability on a number of grounds:
It relied on an "Ellis disclaimer" i.e. that Dr Brown
was not an employee of the hospital, and that Mrs Stefanyszyn could
not pursue the hospital for any negligence on Dr Brown's
Dr Brown was actively involved in Mrs Stefanyszyn's care,
and so the hospital's "burden of responsibility"
passed to Dr Brown.
Although there was a failure to properly take and record
observations in Mrs Stefanyszyn's chart, those failures were
not causative of Mrs Stefanyszyn's death.
Justice Schmidt dealt with the first two issues swiftly by
pointing out that the hospital owed Mrs Stefanyszyn a non-delegable
duty i.e. it was always required to exercise due care and skill for
the safety of Mrs Stefanyszyn, with that obligation of being
independent of the duties Dr Brown owed to Mrs Stefanyszyn.
In relation to the hospital's argument that the failures of
the nursing staff to follow the clinical pathway and to properly
record observations of Mrs Stefanyszyn's condition, the Court
rejected that argument because:
Nursing staff are not only required to properly take and record
post-operative observations, but they are required to report
concerns about a patient's health.
The vomiting at 4.00 am on 5 December was a red flag which
should have resulted in the medical emergency team being
If the MET had been called at that time, the majority of
experts agreed that Mrs Stefanyszyn would not have died.
In reaching these conclusions, Justice Schmidt found that the
hospital's failure to call its own staff to give evidence, as
well as the failure to provide a policies manual that Dr Brown had
subpoenaed, gave rise to the inference that the evidence of the
hospital's witnesses and the policies manual would have been
unhelpful to the hospital's case.
Justice Schmidt ultimately awarded contribution of 20% from the
Justice Schmidt rejected the hospital's argument that its
contribution should be as low as 5% given the hospital's
failures to call evidence from its own witnesses and to produce its
The assessment of 20% reflected the departure both by Dr Brown
and the hospital, from the duty of care they each independently
owed Mrs Stefanyszyn, particularly at the crucial times on 5 and 6
Justice Schmidt indicated that costs would be awarded in favour
of Dr Brown.
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