Australia: Expert evidence, expert advocacy and normal fortitude claims for mental harm – Frangie v South Western Sydney Local Health District t/as Liverpool Hospital

Last Updated: 4 September 2019
Article by Justine Anderson and Jennifer Rooke

Abstract

This case concerned whether Liverpool Hospital (the Hospital) failed in its duty of care when failing to take precautions and initiate medical treatment upon the discharge of Mr Norman Frangie. Mental harm claims were made by the family members and the court was asked whether the psychological harm caused to the four plaintiffs in this case was reasonably foreseeable for a person with normal fortitude in the event of Mr Frangie's death.

Introduction

Following the death of Mr Frangie on 21 November 2016, proceedings were bought by four members of the deceased's family.1 The claims were bought for pure mental harm and Pt 3 of the Civil Liability Act 2002 (NSW) (the Act) applied.

The plaintiffs submitted Mr Frangie's death was caused by the defendant's negligence, and claimed non-economic loss and past and future medical expenses. The defendant disputed liability to any of the plaintiffs on the basis that the indicia under s 32(1) of the Act were not made out. The defendant submitted a s 5O defence and argued that the treatment and management of Mr Frangie was consistent with "what was widely accepted in Australia by the professional opinion as competent professional practice."2An "inherent risk" defence under s 5I of the Act was argued but later abandoned. The defendant submitted that if, in the event that the s 5O defence was not made out, then the plaintiffs had not proved breach of duty under s 5B of the Act.3 Lastly, the defendant submitted the alleged breaches of duty did not cause Mr Frangie's death.

Although Mr Frangie's death was not subject to an autopsy, it was thought on the balance of probabilities that Mr Frangie's death was a consequence of a ventricular fibrillation (VF) and ventricular tachycardia (VT).4

Background

On 13 November 2016, 70-year-old Mr Frangie was at home in the company of his son, Michael. In the evening he complained to Michael that he was hot and sweaty. As he was preparing to go to bed, he stumbled, hit his head on the door and fell on the floor. An ambulance arrived not long afterwards. The ambulance officers detected that he was having a heart attack and was in cardiogenic shock.5

Mr Frangie had a range of comorbidities namely, diabetes, nerve damage, high cholesterol, high blood pressure, poor kidney function, high potassium and a previous stroke.6 He had recently undergone an amputation of one of his toes.7 On arrival at the Hospital, he was subject to a coronary angiogram; this revealed:

... diseased anterior descending artery (up to 70% narrowing); diseased circumflex artery (up to 50% narrowing); and totally occluded right coronary artery (100% narrowing).8

Mr Frangie had suffered a ST elevation9 myocardial infarction (STEMI). This occurs where the blood flow decreases or stops to part of the heart, thereby damaging the heart muscle. One of the heart's major arteries was blocked. This is a profoundly life-threatening medical emergency.

On 14 November 2016, Mr Frangie was first seen by Dr Leung, a cardiology staff specialist within the Hospital.10 By this time Mr Frangie's heart rate and blood pressure had improved significantly, but he was dehydrated. Dr Leung discussed with him a management plan. Dr Leung also discussed with him the findings of the angiogram, mentioning that the Hospital had fixed the blocked artery by insertion of two non-overlapping drug stents but that there was another artery that would need to be fixed after he had recovered from his current heart attack. On the same day, his pacing wire was set at a rate of 50.11

On 15 November, Dr Leung made an assessment of Mr Frangie's heart function by measuring his left ventricular ejection fraction (LVEF); Dr Leung per- formed two measurements of an "EF Biplane", being 51% and 63%, which produced an average of 56%.12 On 16 November, the pacing wire was removed and an echocardiography was performed.13

Dr Leung did not see Mr Frangie on 16 or 17 November. Instead, Professor Leung, a more senior colleague and cardiologist consulted Mr Frangie. Professor Leung reported to Dr Leung that Mr Frangie was doing well; he was stable and no longer needed the pacing wire.14

On 17 November, Professor Leung spoke to Dr Leung again; he reported that Mr Frangie was stable and said that he could re-commence his prior antihypertensive medications. Mr Frangie was expected to be soon fit to go home.15 On 18 November, Dr Leung reviewed Mr Frangie again; tests performed did not show anything unexpected and so Dr Leung formulated a dis- charge plan for Mr Frangie.16

With the removal of the pacing wire, Mr Frangie was placed on dual anti-platelet agents (aspirin and ticagrelor) to stop the stent blocking up. He was to receive Stiolto for his atrial fibrillation, Atacand to help his heart function improve and medicines for his diabetes. There were other recommended drugs for post-STEMI treatment.

Mr Frangie was discharged from the Hospital on 18 November but died at home 3 days later on 21 November 2016.

Court's consideration of legal principles

The plaintiffs' particulars of negligence were as follows:17

  • failure to recommend the use of a wearable defibrillator after discharge
  • failure to prescribe the drug Eplerenone
  • failure to receive further assessment by cardiac MRI study before discharge

The court rejected the defendant's submissions that the s 5O defence applied to the above. By following the Court of Appeal's approach in McKenna v Hunter & New England Local Health District18 it was determined that the treatment plan given to Mr Frangie consisted of "miscellaneous components" rather than a practice that is conformed to. The court confirmed the plaintiffs' submissions that such a treatment plan must involve an individualised inquiry.19

In light of the court's decision regarding s 5O, the standard of care was not modified, but was to be assessed by reference to the typical considerations of s 5B, requiring the plaintiffs to establish the content of the duty of care and whether it had been breached.20 Accordingly, the plaintiffs accepted the defendant's position that the risk of harm was that the deceased's cause of death was most likely due to VF and VT. The court noted these risks were manageable by the defendant and, as such, adopted the risk of harm as "foreseeable" and "not insignificant".21

The court emphasised the issues relating to what precautions the Hospital should have reasonably taken with the identified "risk" of Mr Frangie suffering a fatal arrhythmia.22 Associate Professor Adams, whose evidence was preferred to that of Dr Helprin, said the things that could have been done to deal with the risk were:23

  • providing beta-blocker medication
  • LVEF assessment
  • if LVEF was less than 30%, consider placement of an implantable defibrillator in 6 weeks

Expert evidence and findings of expert advocacy

Dr Helprin, consultant cardiologist, was the expert witness for the plaintiffs and Associate Professor Adams was the defendant's expert. Dr Helprin contended that the plaintiffs' three particulars of negligence meant that if these steps were implemented, that on the balance of probabilities, Mr Frangie's death could have been prevented. This was disputed by the evidence of Associate Professor Adams.24

In relation to the Eplerenone, the court found Dr Helprin's evidence constituted advocacy and was of little use, as he relied on medical evidence in endorsing the drug which only observed patients with an LVEF of less than 40%, which would exclude Mr Frangie. However, Dr Helprin said it couldn't be ruled out that Mr Frangie may have benefitted from its use.25 Associate Professor Adams disagreed with the use of this drug in the circumstances.26 Dr Helprin's evidence was not deemed as helpful and Dr Leung and Professor Adams's evidence was preferred.

Concerning the defibrillator, Dr Helprin was cross- examined on two annexed articles to his report which discussed the categories and clinical indicators that warrant the treatment by use of a defibrillator. The court found that Mr Frangie did not fall within any of the categories. Another annexed article to Dr Helprin's report refuted Dr Helprin's contentions about the appropriateness of treatment as the LVEF was higher than what was considered as the threshold for defibrillator use. Further, in his own professional experience, Dr Helprin had never recommended use of the defibrillator to a patient post-STEMI and with a LVEF greater than 50%. Dr Helprin also accepted that it was not a usual practice nor did he have knowledge whether it was a recommended form of treatment in Liverpool Hospital. Associate Professor Adams was asked whether this treatment would be utilised at Royal Prince Alfred Hospital to which he answered "no".27

In relation to the cardiac MRI, Dr Helprin's evidence was not found to be persuasive as he contended that it was contingent upon which hospital the patient attended as to whether an MRI would be conducted despite it not being a usual occurrence.28 Dr Leung accepted that such assessment was available, and conceded that it was not considered by her at the time, but said that it was not required for all STEMI patients. She referred to the 2013 ACCF/AHA Guidelines (updated in 2017) and said it was not standard treatment for patients.29 Associate Professor Adams said a cardiac MRI was totally unnecessary in the circumstances. This was because there was good evidence from the ECG that the LVEF was normal; the basis of both measurement and visual assessment.30

Thecourt's findings on the medical evidence
Eplerenone

The court determined that the Hospital's failure to prescribe Eplerenone did not represent an unreasonable failure to take this precaution against the identified risk. It was noted that the omission to prescribe this medication was in line with the guidelines for STEMI management, and the weight to be attached to the consideration of the unsuitability of this potential prescription given the deceased's high potassium levels, LVEF reading and possible renal impairment. As such this particular aspect of alleged negligence was rejected.31

Defibrillator

The court considered the evidence regarding the utility of a defibrillator vest. The court found no basis in relation to the studies relied upon by the plaintiff's expert to support the utilisation of this device in patients analogous to Mr Frangie. Dr Leung's evidence (which was supported by Associate Professor Adams's evidence) was accepted regarding the finding that the deceased's left ventricular function was only "mildly reduced" and that together with the proposed use of Eplerenone, there was a degree of "experimentation" with these treatments in the position of the deceased. Accordingly, this particular of negligence was also rejected.32

Cardiac MRI study

The final particular of negligence concerned the failure to conduct a cardiac MRI. The evidence of the two expert witnesses were considered, and again, the evidence of Associate Professor Adams's evidence was accepted, based upon experience and the absence of clinical studies to the contrary. The deceased's LVEF reading fell outside the clinical indication for such treatment, which was found to be more appropriate to "borderline" cases not applicable to Mr Frangie. Consequently, this particular of negligence was also rejected.33

Whilst the court accepted the plaintiffs' submission that Mr Frangie was at a high risk of mortality upon discharge, this did not affect the assessment of what a reasonable response to the identified "foreseeable" and "not insignificant" risk of Mr Frangie's cause of death to be by a VT or VF. The plaintiffs' submissions that the above precautions should have been implemented by the Hospital to manage the relevant risks were not established as they were not suitable for the deceased's condition nor acknowledged as accepted peer practice. Therefore, there was no breach of duty by the Hospital in its care to Mr Frangie.34

Causation

Although the breach of the Hospital's duty of care was not established, the court addressed the necessity for the plaintiffs to establish that the omission to take the three precautions (the use of eplerenone, defibrillator and cardiac MRI) resulted in the deceased's death. The lack of a clear determination of cause of death was problematic for the plaintiffs to establish causation together with the lack of evidence to support that any or all precautions would have prevented his death by VT or VF.35

Pure mental harm claims

The plaintiffs, identifying themselves as close family members of Mr Frangie, submitted they had all suffered pure mental harm. The plaintiffs were respectively:

  • Jane — the wife of Mr Frangie and despite their separation referred to her relationship with Mr Frangie as "best friends".36 Jane attended on Mr Frangie's home and witnessed him dead in the bathroom.37 Jane established that she had suffered a recognised psychiatric injury.
  • Michael — a son of the deceased; he had a history of post-traumatic stress disorder (PTSD) after a serious motor vehicle accident which killed his girlfriend at the time.38 Michael had been living with his father up to the time of his death. Michael received a telephone call from his brother Peter whom informed him of his father's death; Michael then returned home to see his father dead in the bathroom.39
  • Linda — a daughter of the deceased who had a long history of mental health problems but never obtained any psychological or psychiatric treatment until 2017.40 Linda was 39 years of age and was single-handedly responsible for the care of three children. Nevertheless, she lived near her father and went to his house every day.41 She came to the deceased's home after hearing that he had passed away. She went to the bathroom to see the deceased. She said she touched his cheek and found it cold. She says that she was shocked and she froze; and was "heartbroken".42
  • Yasmin — resided in Perth, living with her husband and four children. Despite living in Perth, she had a close relationship with her father.43 She learnt that her father had suffered a heart attack by a telephone call from her sister. She promptly flew to Sydney and visited her father for the first couple of days before returning to Perth due to family commitments.44 She had learned of her father's death by receiving a telephone call at 4 am (Perth time) on 18 November 2018 from her brother, Peter. She says she felt devastated when she heard of the news and flew back to Sydney that night. She saw the deceased after he had been placed in an open casket. She said that she had been sent a photograph of her dead father being found in the bathroom.45

The court considered whether the Hospital owed each plaintiff a duty of care, notwithstanding that their claims failed. The plaintiffs had to establish the indicia in ss 31 and 32(1) of the Act to recover damages relating to mental harm.

The defendants argued that none of the plaintiffs had witnessed the deceased "being killed" but only saw the aftermath of the alleged negligence. The defendant's submission was a direct reference to s 32(2)(b) of the Act and reliance was placed on King v Philcox46 which was directed to a section of a different state's Act, albeit analogous but slightly different to the Act in consideration here. The court noted that psychiatric illness resulting from being told about a close family member's death does not exclude liability per Gifford v Strang Patrick Stevedoring Pty Ltd.47 The plaintiffs must prove two things to enable recovery of damages pursuant to s 30 of the Act:48

  • they suffered a "recognised psychiatric illness" (s 31); and
  • the defendant should have foreseen that a person of normal fortitude might, in the circumstances, suffer a recognised psychiatric illness if reasonable care was not taken (s 32(1)).

"Normal fortitude"

The court considered previous authority in which the scope is of normal fortitude in the circumstances of a pre-existing susceptibility or vulnerability, which would make it unreasonable to require a defendant to contemplate that a plaintiff may suffer psychiatric injury. The defendant qualified this submission by stating that, in some instances, a person with a pre-existing psychiatric illness who witnessed a "truly shocking event involving the death or injury of a close family member"49 would fall within the scope of normal fortitude under s 32(1). Notably, it is not necessary that the defendant foresee any specific psychiatric illness be sustained; merely that any psychiatric illness be foreseen.50

Materially, s 32(2) sets out a non-exhaustive list of circumstances for consideration, without assigning any hierarchy to the list of circumstances; the presence or absence of any of these considerations is not decisive.51 The court held that it did not accept that a plaintiff be required to be present at the scene of the deceased's death nor that it is insufficient that the close family members only saw the aftermath of his death.52 As such, pursuant to Wicks v State Rail Authority of New South Wales; Sheehan v State Rail Authority of New South Wales,53 the concept of "shock"54 was found and the court emphasised that shock relating to all causes of death, injury or being put in peril doesn't mean it must begin and end in an instant or occupy a time measured in minutes.55 "Direct perception" was considered in King v Philcox, however the court found that s 32(2)(b) does not implicitly require the plaintiffs to have witnessed at the scene the death of Mr Frangie.56 The court considered the "nature of the relationships" the plaintiffs had with the deceased, as set out in s 32(2)(c) of the Act. The court noted that it is not about the relationship's "legal status" but the closeness and affection shared. Relationships between parent and child are presumed to be close.57 Finally, s 32(2) (d) assessed the existence or none of a pre-existing relationship between the plaintiff and the defendant. In this case, the court held that the subsection may be broad enough to embrace less formal dealings.58Tame v New South Wales; Annetts v Australian Stations Pty Ltd59 illustrated that the concept can import prior communications, including representations made and expectations engendered during the course of those communications. The court was considering the four factors60 of the normal fortitude test in light of s 32 and not in the context of s 30(2)(a).

Conclusion

The plaintiffs' claims which were heard concurrently ultimately failed, and a verdict and judgment for the defendant was entered, with each plaintiff being ordered to pay the defendant's costs.61

The case demonstrates a number of important points. Firstly, the s 5O defence will not be available in cases where a professional practice is not identified. The court found s 5O did not arise and "peculiar circumstances" or "individual inquiry" did not modify the ordinary standard of care.62

Secondly, in relation to breach of duty under s 5B, the particulars of negligence were considered through examination of the expert witnesses and inspection of the medical evidence and its relevance to the proceedings on foot.63

The court highlighted two points: the first being the importance of the court resisting an inevitable finding of negligence based on the fact that a not insignificant risk of harm was foreseeable and prevent- able; the other was that in reference to medical treatment options, due weight must be given to industry practice (even if that practice is not solely determinative of the standard of care).64

Thirdly, in terms of exposure to pure mental harm claims, a hospital can be found to owe a duty of care to relatives of its patients in the circumstances where it is reasonably foreseeable that a person with normal fortitude might suffer from or develop a recognised psycho- logical illness as a consequence of the defendant's negligence. In this case, one of the plaintiffs affected had no direct contact with the hospital, but contact via telephone was enough to find liability for a resulting psychological illness. Plaintiff solicitors should bear in mind that "shock" has been interpreted broadly to allow for wider means of communicating shock and receiving shock. When the court was discussing the fact that the plaintiffs weren't present at the time of the death, they were not discussing those facts and circumstances in light of s 30(2)(a), rather it was being discussed in the context of the normal fortitude test in s 32(2)(b) and considered the four factors of the test.

Finally, this case should serve as a warning to solicitors to ensure that experts are properly instructed with all the relevant evidence required to form an independent and impartial opinion ensuring their opinions are underpinned by relevant medical evidence applicable to the circumstances of the patient. An expert witness is not an advocate for a party and has a paramount duty, overriding any duty to the proceedings or other person retaining the expert witness, to assist the court impartially on matters relevant to the area of expertise of the witness, as set out in Sch 7 — Expert witness code of conduct — of the Uniform Civil Procedure Rules 2005 (NSW).65

Footnotes

1 Frangie v South Western Sydney Local Health District t/as Liverpool Hospital [2019] NSWDC 42; BC201940075.

2 Above, at [4].

3 Above n 1, at [4].

4 Above n 1, at [35].

5 Above n 1, at [7].

6 Above n 1, at [9].

7 Above n 1, at [173].

8 Above n 1, at [8].

9 ST elevation refers to a specific part of an electrocardiogram between the J point of the graph ending with the T wave. The ST segment is the plateau phase which is isoelectric as there is no voltage passing across the cardiac muscle cell membranes during this state.

10 Above n 1, at [9].

11 Above n 1, at [12].

12 Above n 1, at [13].

13 Above n 1, at [14].

14 Above n 1, at [15].

15 Above n 1, at [16].

16 Above n 1, at [17].

17 Above n 1, at [31].

18 McKenna v Hunter & New England Local Health District [2013] NSWCA 476; BC201316604.

19 Above n 1, at [69].

20 Above n 1, at [70].

21 Above n 1, at [73].

22 Above n 1, at [77].

23 Above n 1, at [77].

24 Above n 1, at [33].

25 Above n 1, at [57].

26 Above n 1, at [54].

27 Above n 1, at [43]–[47].

28 Above n 1, at [62].

29 Above n 1, at [60].

30 Above n 1, at [63].

31 Above n 1, at [80].

32 Above n 1, at [82]–[84].

33 Above n 1, at [85]–[86].

34 Above n 1, at [87]–[89].

35 Above n 1, at [90]–[99].

36 Above n 1, at [127].

37 Above n 1, at [128].

38 Above n 1, at [147]–[148].

39 Above n 1, at [156].

40 Above n 1, at [167].

41 Above n 1, at [171].

42 Above n 1, at [172].

43 Above n 1, at [185].

44 Above n 1, at [187].

45 Above n 1, at [188].

46 King v Philcox (2015) 255 CLR 304; 147 ALD 59; [2015] HCA 19; BC201504903.

47 Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269; 198 ALR 100; [2003] HCA 33; BC200303072 (Gifford); above n 1, at [103].

48 Above n 1, at [104].

49 Above n 1, at [107].

50 Above n 1, at [109].

51 Referring to Wicks v State Rail Authority of New South Wales; Sheehan v State Rail Authority of New South Wales (2010) 241 CLR 60; 267 ALR 23; [2010] HCA 22; BC201004005 (Wicks); above n 1, at [111].

52 Above n 1, at [113]–[114].

53 Wicks, above n 51.

54 As found in the Act, s 32(2)(a)

55 Above n 1, at [112]–[113].

56 Above n 1, at [113]. It was also noted that in Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317; 191 ALR 449; [2002] HCA 35; BC200205111 (Annetts) that there was equally no implicit requirement of direct perception of the death, injury or being put in peril.

57 See Gifford, above n 47, at [48]–[49].

58 Above n 1, at [115].

59 See Annetts, above n 56.

60 Within s 32(2) of the Act.

61 Above n 1, at [193].

62 Above n 1, at [69].

63 Above n 1, at [36]–[65].

64 Above n 1, at [27].

65 Also see Uniform Civil Procedure Rules, r 31.32

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