Australia: Apportionment of liability: The duty owed by a private hospital

Last Updated: 9 November 2016
Article by Jennifer Davis
"...any act or omission on behalf of the Hospital's employees in the services they agreed to provide to the Patient document exposed the Hospital to a finding of negligence and shared liability..."

The Supreme Court of New South Wales recently delivered judgment in a cross-claim for contribution made by a surgeon against a private hospital. The Court was asked to determine the nature and extent of duties owed to a patient where a surgical error and then failures in post operative medical and nursing care led to the death of a patient.

On 1 December 2008, Colleen Stefanyszyn (the Patient) underwent elective surgery by Dr Oliver Brown at Newcastle Private Hospital (the Hospital). It was not discovered until after her death on 6 December 2008 that during the procedure suture material was looped around the Patient's bowel, creating a blockage. In the five days it went undiscovered, this blockage caused infection; vomiting of faecal material; inhalation of faecal material; pneumonia; a significant deterioration in her condition; and then a fatal cardiac arrest.

Proceedings were initiated by the Patient's husband and daughters against Dr Brown where settlement was reached on terms that the Hospital agreed were appropriate. The subject proceeding of Stefanyszyn v Brown; Brown v Newcastle Private Hospital Pty Limited t/as Newcastle Private Hospital [2016] NSWSC 826 was to hear the cross-claim initiated by Dr Brown against the Hospital for contribution.

The Court was required to consider the duties of care owed to a patient in a private hospital where the hospital provides facilities, nursing, and paramedical services, but the patient's medical condition is managed by a doctor who is privately engaged with practicing rights at the hospital.

It was agreed by Dr Brown and the Hospital that the Patient's death could have been prevented had the cause of her deterioration been investigated and the blockage been identified and surgically corrected. Dr Brown admitted breach of duty but alleged that the Hospital failed in its delivery of post operative nursing care which contributed to the Patient's death.

The Hospital admitted owing a duty to exercise reasonable care in providing it's facilities, nursing services and paramedical services and admitted to breach of duty in the nursing staff failing to record certain observations. However the Hospital submitted that it was Dr Brown, having been retained by the Patient, who was responsible for her medical management and that it was his surgical error which was causative of the Patient's death. Further, they relied on an Ellis Disclaimer which the Patient signed prior to admission. This type of disclaimer is an acknowledgement by the patient that they are admitted under the care of their treating doctor, who is not an employee of the Hospital, and that the Hospital is not liable for the treating doctor's conduct. Further, it is an acknowledgement that the Hospital is providing facilities, nursing and paramedical services, for which the Hospital is liable.

The Court found that an act or omission of Dr Brown's part could not result in a breach of duty for the Hospital, however the Hospital staff's adherence to its own guidelines was not Dr Brown's responsibility. Therefore any act or omission on behalf of the Hospital's employees in the services they agreed to provide to the Patient document exposed the Hospital to a finding of negligence and shared liability. This was on the basis that the nursing staff's failure to complete the Clinical Pathways document meant that variances in the patient's condition that deviated from the clinical pathway could not be identified and communicated to Dr Brown.

The Court considered that the evidence inferred that "if the nursing staff had adhered to the Hospital's own systems and had kept [the Patient] under increased observation, and dealt with detected variances, as they ought to have done, when she failed to recover as its guideline document envisaged, her death would have been prevented."

As a result, the Court was satisfied that the failures of Dr Brown as well as those of the Hospital materially contributed to the Patient's death.

As the Court found that both parties had breached their respective duty of care to the Patient, the resulting question was the extent to which each party's breach contributed to her death and the apportionment of damages.

In assessing the apportionment between the parties, the Court considered that Dr Brown had properly accepted that the more significant failures were his. The Hospital submitted that its contribution should be assessed at 5%, however the Court considered that the degree of departure from its duty of care warranted apportionment of 20%.

This case clearly demonstrates that a private hospital will not be relieved of their duty of care to a patient where there has been a failure to deliver an appropriate standard of nursing services. It is a case which tests the extent of an Ellis disclaimer, which is widely used in private hospital practice. If the acts or omissions of nursing or other hospital staff materially contribute to injury to a patient, the hospital can expect to be exposed to some degree for a finding of negligence against them.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Jennifer Davis
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