The Facts

The plaintiff was admitted to Canberra Hospital (the hospital) on 23 September1998 for a vaginal hysterectomy. She was admitted as a public patient and had been put down for elective surgery by her treating specialist, Dr Heaton. She was a long term patient of Dr Heaton. The plaintiff had previously held private health cover, however, by the time she was admitted for the hysterectomy it had lapsed.

After the hysterectomy was performed there were post-operative complications. It subsequently emerged that the plaintiff's right fallopian tube had prolapsed into her vagina. The plaintiff was required to undergo a number of invasive and painful procedures until it was eventually corrected in October 2000. The plaintiff was required to undergo further surgery in February 2001, which resulted in the removal of a tubo-ovarian mass.

The plaintiff alleged that all of the complications arose due to the negligence of the ACT as the operator of the hospital and Dr Heaton as the surgeon. However, the hospital records showed that the procedure was actually performed by a registrar, Dr Cree, with Dr Heaton assisting. Dr Cree was only a level 2 registrar. Dr Heaton was under the impression that Dr Cree was a level 3 registrar. It was accepted that it is not appropriate for a level 2 registrar to perform such a procedure.

The plaintiff alleged that after the substantial completion of the procedure the fallopian tube became entangled in the stitching. The stitches had dissolved over time so it was difficult to tell if that is in fact what occurred. The expert evidence was that entanglement could have been an option resulting from poor surgical technique.

The plaintiff's evidence was that, had she known the surgery would be performed by a registrar, she would have declined the procedure. The admission form signed by the plaintiff acknowledged that the hospital would make the decision as to which doctor would perform the procedure.

The Decision

The court was satisfied on the balance of probabilities that while performing the suturing of the wound, Dr Cree inadvertently caught the plaintiff's fallopian tube in the suture line.

The central issue revolved around Dr Cree's level of training and experience as at September 1998, and whether the hospital was in breach of its duty of care to a public patient in permitting Dr Cree to perform a complex procedure, or alternatively in holding out to Dr Heaton that Dr Cree was competent to perform a complex procedure.

Dr Heaton gave evidence that he was told by Dr Peak, the hospital's training supervisor, that Dr Cree was a level 3 registrar. This evidence was accepted. The court found that the documentation provided to the hospital clearly showed that Dr Cree was only a level 2 registrar.

Neither Dr Cree nor Dr Peak were available to give evidence. The court found that their absence as material witnesses was not satisfactorily explained and, as such, the court was entitled to draw the inference that their evidence would not have assisted the case of the defendants.

Ultimately, the court was not satisfied that there is a duty of care on a hospital to provide a public patient with an express choice as to who performs the surgery. However, there is a duty to ensure that it provides patients with suitably qualified staff.

The court found the hospital negligent for holding Dr Cree out to be a level 3 registrar.

The court was satisfied that based on the expert evidence required it was entirely appropriate for Dr Heaton to allow a level 3 registrar to perform this procedure under his close supervision, and that Dr Cree's negligent suturing occurred on the internal side of the would and therefore was unable to be seen by Dr Heaton.

The court awarded judgment for the plaintiff against the hospital only.

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