Australia: Plaintiff discharged from hospital whilst sedated and allowed to drive a motor vehicle: Naidoo v Brisbane Waters Administration Pty Ltd t/as Brisbane Waters Private Hospital

Background

This case concerns the plaintiff, Ms Naidoo, a 52-year-old registered nurse bringing action against Brisbane Waters Private Hospital (the hospital, first defendant) and Dr Larissa Grund (the psychiatrist, second defendant) in respect of injuries suffered as a consequence of a motor vehicle accident which occurred shortly after her discharge from the hospital on 17 January 2012.1 The essential allegation against the defendants is that, at the time of discharge, the plaintiff was suffering from tiredness, drowsiness and/or sedation and ought not to have been permitted to drive her motor vehicle home from the hospital at Woy Woy to her home at Wyong, some 50 km away.2

The plaintiff during her admission was suffering from insomnia and consequently extreme fatigue. According to the medical evidence, the plaintiff had a history of sleep disturbance. On the day before the plaintiff was discharged, she had spent the majority of her time in bed. On the morning of her discharge, having being woken by staff at breakfast, the plaintiff fell asleep over her breakfast. Nursing staff tried to wake her on several occasions throughout the morning of 17 January 2012 but the plaintiff fell back to sleep again.3 The plaintiff's bags were packed for her by staff and placed in her car, she had a cold shower to attempt to wake herself up and her car was brought around to the hospital and her keys handed to her on discharge.4

The plaintiff left the hospital, embarking on a 50-km drive home. At the time when she was discharged, the plaintiff was on a combination of several psychotropic drugs, including OxyContin, Diazepam and Zolpidem.5

The plaintiff told the court that she remembered turning into a street parallel to her street but could not recall what then happened as she "blacked out". She told the court:

I remember waking up to my head hitting the roof and the car was airborne and I black [sic] out again. The next thing was when the ambulance was there scooping up the teeth ... 6

The plaintiff later was told by emergency services that she had driven off the road and into a wall.7 The court found that the accident and the harm to the plaintiff was caused by her falling asleep whilst driving.8

Particulars of negligence

The particulars of negligence alleged jointly against both defendants were:9

  1. failing to take an adequate history from the plaintiff;
  2. failing to consult the plaintiff's clinical record;
  3. failing to observe the effect on the plaintiff of the medication;
  4. failing to monitor the plaintiff while taking the medication;
  5. failing to observe the plaintiff's condition before discharging her from its care;
  6. failing to ascertain the means whereby the plaintiff was journeying home from the hospital;
  7. furnishing the plaintiff's car keys to her at the time of her discharge from its care;
  8. inviting the plaintiff to operate a motor vehicle immediately upon her discharge from its care;
  9. failing to warn the plaintiff that potential effects on her of taking the medication were cognitive impairment and sedation;
  10. failing to warn the plaintiff that a potential effect on her of taking duloxetine was a seizure;
  11. failing to caution the plaintiff not to attempt to operate a motor vehicle while under the effect of the medication;
  12. failing to caution the plaintiff not to attempt to drive a motor vehicle from the hospital to Wyong while under the effect of the medication.

Ultimately, (a) through (c) were accepted by the court as a breach of duty by the psychiatrist. Particular (d) was not made out and was held not to be causally relevant.10

Particulars of negligence (f) through (l) were made against both defendants, with the exception of (i) where the court was unsure if the allegation was made out but nevertheless stated it was incumbent on both defendants to ensure the plaintiff was aware of the risk of driving the motor vehicle whilst taking sedative medication.11 Particular of negligence (j) was not made out as the evidence did not support the finding.12

Cross-claims

First defendant's cross-claim

Part of the hospital's case was a claim that, if found liable, then it looked to the psychiatrist for contribution and/or indemnity. In addition to the negligence pleaded against the psychiatrist in the Third Amended Statement of Claim, the cross-claim proceeded on the basis that the psychiatrist was responsible for the plaintiff's medical management and had approved the plaintiff to drive her car prior to discharge in circumstances where the psychiatrist was aware of the medications which had been prescribed to the plaintiff.13

Second defendant's cross-claim

By cross-claim against the hospital, the psychiatrist sought indemnity and/or contribution from the hospital on the grounds alleged against the hospital.14

Evidence

Briefly touching upon the evidence, the court accepted the oral evidence of the plaintiff over that of the hospital staff and the psychiatrist. The plaintiff proved herself to be a reliable and honest witness.15 Unfortunately for the psychiatrist and hospital staff, the same could not be said.

During the judgment, Wilson SC DCJ made a number of findings that assisted him in drawing his ultimate conclusion.

Some of the cornerstone intermediate factual findings made were:16

  1. that the plaintiff was suffering from sedation and/or extreme fatigue on the day of discharge;
  2. that the plaintiff had been suffering from that condition for several days prior to discharge, including when she consulted the Psychiatrist on 16 January 2012 [the day before she was to be discharged];
  3. that the plaintiff's condition was the result of medication and/or insomnia;
  4. the plaintiff was unit by reason of sedation and/or fatigue to drive home at the time of discharge;
  5. that whilst driving, the plaintiff fell asleep causing the loss of control of her vehicle, resulting in the accident;
  6. that her condition ought to have been obvious to Hospital staff (on the day of discharge) and the Psychiatrist (on 16 January 2012 — the day prior to discharge);
  7. that the Psychiatrist ought to have either examined the plaintiff on the day of discharge or enquired as to her condition when taking [sic] with [one of the nursing staff];
  8. that, had such an examination taken place or enquiries made, it ought to have confirmed the Psychiatrist ... that the plaintiff was unit to drive a motor vehicle home on 17 January 2012;
  9. the plaintiff ought not to have been discharged home alone that day;
  10. alternative arrangements ought to have been made for her transfer home; and
  11. enquiries ought to have been made as to the availability of some other person to drive the plaintiff home, such as a family member or friend.

On the basis of these findings, Wilson SC DCJ, then ruled that both the psychiatrist and the hospital breached her/its duty of care to the plaintiff.17

Breach of duty and application of Civil Liability Act 2002 (NSW) (CLA)

Section 5B — general principles on duty of care

Section 5B is a contextual and balanced assessment of the reasonable response to foreseeable risk.18

Section 5B(1)(a) — foreseeable risk: a risk of which the person knew or ought to have known

The relevant risk in this case was that, by reason of tiredness, drowsiness, fatigue and/or sedation, the plain-tiff might fall asleep or suddenly black out whilst driving the 50-km journey from the hospital to her home causing a loss of control of the vehicle and harm to the plaintiff (the risk).19

A lengthy list of facts that applied to the knowledge of the risk is specified at [293] of the judgment. Some of the reasons found by Wilson SC DCJ were:20

  • when seen by the psychiatrist on 16 January it was noted that the plaintiff had spent most of that day in bed
  • on the morning of discharge, the plaintiff fell asleep repeatedly and had to be woken on several occasions by the hospital staff
  • the hospital staff carried her bags from the hospital to her car
  • a fellow patient was concerned about the plaintiff leaving the hospital given her condition and communicated her concerns to a staff member

Wilson SC DCJ found the risk was one which the defendants knew or ought to have known so as to make it reasonably foreseeable.21

Section 5B(1)(b) — risk not insignificant

Over the plaintiff's lengthy admission, given what the hospital staff and the psychiatrist had observed, it was found that the knowledge of the parties as to the plaintiff's tendency to sleep spontaneously (particularly in the afternoons) and the obvious consequences of the risk's occurrence made the risk highly significant.22

Section 5B(1)(c) — reasonable person test

Wilson SC DCJ listed the many precautions that the defendants could have taken to safeguard the plaintiff against damage:23

  • keeping the plaintiff in hospital until she was it to drive home
  • withholding her keys
  • making arrangements for the plaintiff to be driven home by family and friends
  • organising a taxi to take the plaintiff home
  • having a member of the hospital staff drive her home

On this basis the court concluded that a reasonable person in the defendants' position would have taken one or more of these precautions.

Section 5B(2) — determining whether a reasonable person would have taken precautions against a risk of harm

Wilson SC DCJ held that, based on the plaintiff's presentation as recorded and observed prior to dis-charge, it ought to have been apparent to the defendants that the harm would, on the balance of probabilities, occur if precautions against it were not taken such that the probability that the harm would occur was high.24 The seriousness of the harm was found to be extremely high, predicated on the seriousness of the accident and the damage caused to the plaintiff.25 His Honour noted that the precautions advanced were not burdensome to the defendants.26 Whilst there was social utility in reintegrating the plaintiff back into society it ought to not have been attempted by way of putting an impaired and sedated plaintiff on a public road, in a motor vehicle to drive 50 km home.27

Section 5D — general principles on causation

Section 5D(1)(a) — the negligence was a necessary condition of the occurrence of the harm (factual causation)

It was found that the negligence of the defendants in failing to take any one or more of the precautions referred to above was a necessary condition of the occurrence of the harm. That is, but for the defendants' failure to implement any of the precautions referred to above, the harm to the plaintiff would not have been suffered.28

Section 5D(1)(b) — scope of liability and s 5D(4)[29]

The court found the responsibility for the harm suffered by the plaintiff ought to be imposed on both defendants.[30] As the plaintiff was vulnerable and in an impaired condition when an inpatient at the hospital and in the care of the psychiatrist, as such, the duty of care owed and the liability for breach of that duty extends to ensuring that a patient discharged from hospital arrives home safely.

Section 5D(3)

It was accepted by the court that had either of the defendants insisted that the precautions be taken then the plaintiff would have complied.31 It was put to the plaintiff in re-examination, what she would have done had she not been permitted to drive and her answer was that she would not have driven.32 The plaintiff maintained throughout her evidence that she was reliant on the professional opinion of her carers and would have obeyed their instructions.

Section 5O— standard of care for professionals

The breach of duty in this case was held to be so clear that a layperson could point to it. Conclave expert evidence was put to the court with Wilson SC DCJ preferring the expert evidence of psychiatrist Professor Jonathan Phillips. Phillips opined that the psychiatrist did not act in a manner that was widely accepted by peer professional opinion as competent professional practice, qualified with his opinion of "I would not have allowed her to go home driving herself on that day."33Professor Phillips expressed the opinion that both defendants were incorrect in allowing the plaintiff to attempt to drive her car immediately following discharge from hospital. Dr Teoh, psychiatrist, echoed Professor Phillips's opinion stating that the defendants' behaviour departed from the peer professional practice widely accepted in Australia.34

The dissenting opinion was that of Professor Large, whose opinion was not accepted by the court.35

Apportionment of liability

Based on the evidence, the court reached the opinion that the liability ought to be apportioned between the defendants as follows:36

  • as against the hospital — one-third
  • as against the psychiatrist — two-thirds

Due to the factual findings above, Wilson SC DCJ found as against the Hospital:37

  • On the day of discharge the plaintiff's condition was such that the nursing staff at the hospital ought to have, but did not, raise that matter with the psychiatrist prior to discharging the plaintiff to drive home.
  • The hospital had the last opportunity to prevent the plaintiff from driving her vehicle or make other arrangements for her which they failed to do.

As against the psychiatrist, the court stated its reasons for its two-thirds apportionment as being inter alia:

  • The psychiatrist was the expert in charge of the treatment and management (including the dis-charge) of the plaintiff.
  • It was found the psychiatrist's degree of departure from the conduct of a reasonable person in her position was greater than that of the hospital.

Contributory negligence

Both defendants argued contributory negligence 38 on the part of the plaintiff, on the following grounds:39

  1. driving in circumstances where the plaintiff knew or ought to have known that she may be affected by medication;
  2. failing to inform the servants or agents of the first defendant that she was not it to drive;
  3. failing to request a taxi or other means of transport to return home; and
  4. failing to arrange for a friend or acquaintance to collect her from Hospital.

The court held both defendants failed on all allegations of contributory negligence and said the plaintiff was entitled to rely upon the assessment of her carers who were experienced in making decisions of this type. 40 The court, having regard to s 5B, found that a reasonable person in the position of the plaintiff would have done the same. Wilson SC DCJ was not satisfied the defendants had discharged their onus of establishing any evidentiary basis for a finding of contributory negligence and therefore they failed on all allegations.

Damages

Damages in this case were at times confused and often complex as the plaintiff had multiple pre-existing injuries prior to the subject accident. The plaintiff was receiving both gratuitous care from members of a church group and a male friend was also receiving some paid assistance through the plaintiff's workers compensation insurer. Unfortunately the occupational therapy report was of no assistance to the court in assessing past or future care.41

The court found that the subject accident caused aggravation to the plaintiff's pre-existing bilateral knee problems, pre-existing back problems and ruled she had sustained a soft tissue injury to her neck and right shoulder as a consequence of the motor vehicle accident.42

Quantum

The court awarded the plaintiff a non-economic loss allowance of 27% of the most extreme case pursuant to s 16 of the CLA, being the sum of $61,500.43 As for past treatment expenses, the plaintiff had failed to discharge the evidentiary onus and accordingly no allowance was given.[44]As for future treatment, $10,000 was awarded to cover future dental treatment expenses.45

Past economic loss

The court was not satisfied that the plaintiff's limited capacity for work was affected or, even if it had been, she did not suffer any loss as a result. It was deemed improbable that the plaintiff would have returned to any remunerative employment, irrespective of the accident's occurrence. Accordingly, the court made no allowance for past economic loss.46

Future economic loss

Wilson SC DCJ accepted the plaintiff would not return to gainful employment in the future.47 A buffer in the sum of $25,000 (inclusive of superannuation) was held to represent a reasonable allowance in the circum-stances.48

Past domestic assistance

Wilson SC DCJ was not satisfied that the plaintiff had made out sufficiently her claim for past domestic assistance. First, it was put on a gratuitous basis and, therefore, must meet the thresholds under s 15(3) of the CLA, being for at least 6 hours a week and for a period of at least 6 consecutive months.49 Wilson SC DCJ found that the plaintiff's needs, such as they existed, fell below the thresholds required under the CLA. Accordingly, no allowance is made for past domestic assistance.50

Future domestic assistance

The court was not satisfied that the plaintiff had discharged her onus of proof in relation to the matters necessary under s 15(2) and (3) of the CLA. In addition, it was found that the plaintiff had failed to discharge her onus in relation to causation in respect of any such need, given her pre-existing requirement for same. Accordingly, no allowance was made.51 Accordingly, the first and second defendants' liability to the plaintiff after apportionment was $32,167 and $64,333.52

Wider application for health practitioners in other areas of practice

Day-stay procedures are becoming increasingly commonplace, from cosmetic surgeries, dental procedures, endoscopy procedures, radiological investigations and other forms of minor surgery. These procedures sit in a category that require a form of sedation or anaesthetic. Patients are observed in the hospital for a few hours after the procedure then discharged that same day.

It is not novel to state each patient tolerates medications differently and can be subject to the adverse effects of an introduction to new medications. Extended release medications provide a slow release of the drug in to the patient's system, presenting a slow onset of potential side effects and potential extended sedation.

As a consequence of this decision, hospitals and practitioners alike will have to ensure thorough assessments are performed to garner an accurate assessment of a patient's suitability for discharge. This may mean patients having to stay at the facility until the effects of sedation wear off or alternate travel arrangements are made for the patient. One of the clear themes to come out of this decision is, where there is any question as to a patient's suitability for discharge, double-check with the patient's treating doctor and reassess the patient.

Of relevance, in the context of dental procedures

The Australian Dental Association's Policy for Conscious Sedation 53 provides that, as well as the administration of dental general anaesthesia, conscious sedation is not without its risks due to the following:54

  1. Potential for unintentional loss of consciousness
  2. Depression of protective refiexes
  3. Depression of respiration
  4. Depression of the cardiovascular system
  5. Wide variety and combinations of drugs which may be used, with the potential for drug interactions
  6. ...

These noted risks associated with conscious sedation provided with dental procedures are also applicable to a number of other minor surgical procedures as previously noted.

It is widely accepted in a clinical setting that a patient is to be accompanied by a responsible adult on discharge post-sedation and must not drive, operate heavy machinery or make any important decisions for up to 24 hours. Whilst it is the reality that not every patient has someone to accompany them home after a procedure, patients should ideally be accompanied by a responsible adult. Health practitioners, in particular nursing staff, need to be aware of postoperative day patients wishing to catch public transport or a taxi alone. Patients who remain under the effects of sedation are placed in a vulnerable position and the hospital and individual practitioner(s) could become liable if an incident was to occur.

Footnotes

1Naidoo v Brisbane Waters Administration Pty Ltd t/as Brisbane Waters Private Hospital [2017] NSWDC 372; BC201740733 at [1].
2Above, at [2].
3Above n 1, at [372].
4Above n 1, at [51].
5Above n 1, at [241] and [251].
6Above n 1, at [320].
7Above n 1, at [321].
8Above n 1, at [330].
9Above n 1, at [8].
10Above n 1, at [349].
11Above n 1, at [357].
12Above n 1, at [358].
13Above n 1, at [13].
14Above n 1, at [16].
15Above n 1, at [130].
16Above n 1, at [289].
17Above n 1, at [290].
18Roads and Traffic Authority of NSW v Dederer (2007) 238 ALR 761; 48 MVR 288; [2007] HCA 42; BC200707279 at [69].
19Above n 1, at [292].
20Above n 1, at [293].
21Above n 1, at [294].
22Above n 1, at [296].
23Above n 1, at [297].
24Above n 1, at [300] and as per CLA, s 5B(2)(a).
25Above n 1, at [301] and as per CLA, s 5B(2)(b).
26Above n 1, at [302] and as per CLA, s 5B(2)(c).
27Above n 1, at [303] and as per CLA, s 5B(2)(d).
28Above n 1, at [307]; Adeels Palace Pty Ltd v Moubarak; Adeels 29Palace Pty Ltd v Bou Najem (2009) 239 CLR 420; 260 ALR 628; [2009] HCA 48; BC200910035.
29 Section 5D(4) of the CLA states for the purposes of determin-ing the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
30Above n 1, at [311].
31Above n 1, at [310].
32Above n 1, at [127] and [381].
33Above n 1, at [274].
34Above n 1, at [315].
35Above n 1, at [316].
36Further details of reasoning of apportionment can be found in above n 1, at [397]–[398].
37Above n 1, at [397].
38CLA, s 5R.
39Above n 1, at [12].
40Above n 1, at [409].
41Above n 1, at [513].
42Above n 1, at [533], [535] and read against [557].
43Above n 1, at [569].
44Above n 1, at [574].
45Above n 1, at [579].
46Above n 1, at [590].
47Above n 1, at [539].
48Above n 1, at [597].
49Above n 1, at [600].
50Above n 1, at [606].
51Above n 1, at [609].
52Above n 1, at [611].
53Australian Dental Association, Policy Statement 6.17 —Conscious Sedation in Dentistry, 2017, www.ada.org .au/Dental-Professionals/Policies/Dental-Practice/6-17-Conscious-Sedation-in-Dentistry/ADAPolicies_6-17_Conscious SedationinDentistry_V1.
54Above, para 1.2.

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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