Australia: Was the hospital to blame for the infection to the patient after surgery? Which case won?

The Facts

Patient undergoes hernia repair following caesarean section

On 7 June 2010, a woman attended a hospital for the repair of an incisional hernia that had developed at the site of her caesarean section wound, following the birth of her third child at the end of 2009.

The patient was admitted for surgery by a senior surgeon, but underwent the hernia repair at the hands of a junior surgeon, with the senior surgeon present to assist in the surgery. The hernia was repaired and surgical mesh was placed over the hernia site.

Subsequent surgeries following initial procedure

Further surgery was undertaken on 15 June 2010 to drain a seroma (pocket of clear fluid) which had developed at the site of the surgery, wash the wound out and apply a VAC (vacuum assisted closure) dressing. Shortly afterwards, on 18 June 2010, the patient was discharged from the hospital.

On 27 June 2010, based on concerns of the community nurse, the patient returned to the hospital for further review. As a result, the patient underwent another wash out procedure and had a VAC dressing re-applied.

Patient returns to hospital on further occasions

The patient returned to the hospital again on 3 July 2010, complaining of abdominal pain, nausea and fevers, as well as swelling and bleeding around the wound site. She was admitted for review and given intravenous antibiotics before being discharged from the hospital on 5 July 2010.

On 15 July 2010, the patient presented as an outpatient to the hospital. It was noted that she had a leaking abdominal seroma, as well as a 6×6 centimetre area of necrotic flesh.

Immediate surgery after different hospital diagnoses surgical mesh infection

Not satisfied with the care provided by the hospital, the patient attended another hospital on 16 July 2010. She was diagnosed with overt surgical mesh infection and immediately underwent surgery to remove the infected mesh.

The patient continued to struggle with the infection for most of 2010.

The patient had follow-up surgeries in August 2010 to have necrotic tissue removed and in July 2011 to have plastic surgery to the surgical wound. The infection persisted until September 2011.

Consequences of infection for patient lead to legal action

The patient claimed that as a result of the infection, she continued to suffer from pain, mechanical back pain, discomfort and restriction of movement at the surgical site, as well as psychological injuries. Consequently, she was restricted in her ability to engage in her chosen profession and look after her three children.

The patient sued the hospital where the hernia repair operation had taken place in the Supreme Court of NSW, in both battery and medical negligence.

case a - The case for the patient

case b - The case for hospital

  • I only consented to the senior surgeon completing the initial operation, not the junior surgeon whom I had not met. This was tantamount to assault and battery.
  • If unsuccessful in the claim for assault and battery, I claim in the alterative that the hospital was negligent in my care on a number of grounds.
  • My treating surgeon should have known I was more prone to infections, given my additional risk factors of obesity and smoking, as well as location of the caesarean section incision very low on the abdomen. A reasonable surgeon would have taken steps to prevent the development of an infection by applying surgical drains.
  • Following the second and third operations, my treating surgeon should have diagnosed the presence of the infection and its source, being the surgical mesh. Failure to do so amounted to misdiagnosis.
  • When I returned to the hospital for subsequent procedures, the mesh should have been removed and I should have been given intravenous antibiotics for a longer period, perhaps one month.
  • Because of the shortcomings in my initial treatment and care, I was forced to endure an additional five operations which could have been avoided. The court should find that the hospital is liable in negligence.
  • The patient consented to the procedure by signing a consent form which stated that the surgery could be performed by a junior surgeon under a senior surgeon's supervision.
  • There are no fixed rules governing the use of post-surgical drains, which are only required where there is bleeding or infection. These were not present when the patient's hernia repair operation was performed.
  • The use of surgical drains is dependent upon each individual patient's circumstances and also depends on the particular treating surgeon's individual professional judgment at the time.
  • Surgical drains can in fact act as a conduit for infection, so their use is not without risk.
  • The development of infection is an inherent risk of any surgery. It is not evidence that surgery was not performed to a competent professional standard.
  • The patient's treatment and care fell within the parameters of competent professional practice and the court should find that the hospital is not liable in negligence.

So, which case won?

Cast your judgment below to find out

Alexander Hairs
Medical negligence
Stacks Goudkamp

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