Will increasing a patient's underlying risk impose on a hospital/doctor an obligation to pay damages?
Consider the following:
1. A patient has an underlying risk of a heart attack of 10%. Due to negligent treatment, that risk increases to 15%. The patient has a heart attack. Is the patient entitled to damages?
2. Assume 100 similar patients are treated the same way as the patient in question 1 above. Statistically 15 of them will have a heart attack. Ten of them would have had a heart attack irrespective of the negligent treatment. Five of them will have had a heart attack because of the negligent treatment. Are all or any of the patients entitled to damages?
Before answering these questions it is necessary to consider the recent Supreme Court of Victoria decision in Freidin v St Laurent  VSCA 16.
Marija St Laurent (the plaintiff) sustained a large rightsided vulval haematoma during the course of giving birth. It was so large that 15% of her total blood supply was lost when it was evacuated.
The haematoma was said to have been caused by a shearing effect between the vaginal wall and paravaginal tissue.
The plaintiff alleged that Dr Freidin (the defendant) was negligent in using keilland forceps to deliver the baby without first cutting an episiotomy and that this was a cause of the injury.
The Issues At Trial
The only issues at trial were whether the defendant was negligent in not cutting an episiotomy and, if so, was that negligent omission a cause of the plaintiff's injury?
The defendant's evidence was that there was no need to perform an episiotomy because 'the perineum was stretching and the vagina was stretching nicely'. After the delivery, the defendant sutured two superficial tears in the wall of the plaintiff's vagina which he presumed were to have been caused by the passage of the baby's head but conceded that they could have been caused by the forceps. He could not say whether doing an episiotomy would have prevented the tears.
Expert evidence was led going both ways as to whether it was negligent or not to perform an episiotomy although importantly none of the experts said that performing an episiotomy would have, on the balance of probabilities, avoided the haematoma although there was some evidence to say that it increased the risk of haematoma.
The Judge's Charge To The Jury
Counsel for the defendant at trial argued that the Judge should direct the jury that they had to be satisfied that 'on the balance of probabilities an episiotomy would have obviated the risk of injury'. The Judge rejected that submission and charged the jury as follows:
'If you conclude that the wrongful omission to carry out an episiotomy resulted in an increased risk of injury to the plaintiff, and that risk eventuates, then you may come to the view that the defendant's conduct has materially contributed to the injuries that the plaintiff suffers, whether or not other factors also contributed to that injury occurring. If you reach that conclusion, then in that situation as members of the jury, you are entitled to conclude that the omission caused the injury in question, unless the defendant establishes that the failure had no effect at all, or that the risk would have eventuated and resulted in the injury in any event.'
The Jury's Verdict
The jury found for the plaintiff.
The defendant appealed to the Victorian Supreme Court of Appeal. The appeal was dismissed.
Chernov JA who wrote the leading judgment said the evidence at the trial was sufficient that the jury could have properly found, notwithstanding contrary evidence, that the defendant's failure to perform an episiotomy increased the risk of injury and that such a failure was a material cause of it. By way of illustration, one of the expert witnesses said that the risk of haematoma was increased by the failure of the defendant to perform an episiotomy.
If a defendant's conduct materially increases the risk of injury and that injury eventuates then the defendant will be liable.
Answers To The Questions
Before the decision in Freidin v St Laurent, the answers may have been different.
By virtue of the decision in Freidin v St Laurent, a court if asked to consider the questions set out at the commencement of this article is likely to find in respect of each of the questions:
1. Yes, the patient is entitled to damages.
2. Yes, all 15 patients are entitled to damages.
The answer to question 2 should send a shiver down the spine of health professionals and medical indemnity insurers.
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