The Facts

The plaintiff underwent surgery for bowel cancer on 14 March 2003 at Gosford District Hospital. The surgery was performed by the first defendant, Dr Simpson. The second defendant, Northern Sydney Central Coast Area Health Servicewas responsible forthe management of Gosford District Hospital. No complications were recorded during the surgery and the plaintiff was discharged from hospital. After leaving hospital the plaintiff experienced difficulty passing urine. It was discovered that there was a defect on the plaintiff?s left ureter, described as a fistula. This was the plaintiff?s only functioning ureter. The treatment and repair of the fistula involved a reasonably long period of time. The plaintiff claimed the injury to his left ureter was due to the negligence of the defendants.

The Decision

The court was presented with a number of possible causes of the injury. It was accepted that the injury was caused by the use of a diathermy probe which resulted in a low level full thickness burn to the ureter. A diathermy probe is an important surgical tool that has 2 functions. The first is for dissecting or cutting tissue, the second is to provide heat to blood vessels to stem bleeding.

The first issue for the court to decide was whether the burn occurred as a result of inadvertence or failure to exercise care and skill in performing the operation. The court heard expert evidence from several doctors all with competing views. Dr Morris was of the view that all injuries inflicted by a diathermy probe were the result of surgical error. Dr Meagher on the other hand was of the view that the injury could have occurred even when the appropriate standard of skill and care was used. Dr Meagher qualified his view by saying that in the course of surgery it was necessary for a surgeon to embark on guesswork about what was or was not safe. The court preferred the evidence of Dr Morris and found the defendants in breach of their duty of care to the plaintiff.

The second issue before the court was whether the defendants were afforded the protection of the defences contained in the Civil Liability Act 2002 (NSW) namely:

  1. Whether the risk was inherent, or
  2. Whether Dr Simpson acted in a manner that is widely accepted in Australia by peer professional opinion as competent/professional practice.

The court did not accept that the injury that occurred was an inherent risk of the surgery. In support of the second defence, the defendants relied on the evidence of Dr Meagher that the injury could happen even in the most experienced of hands. Dr Meagher did not, however, address the question of whether peer professional opinion would accept as competent the inadvertent injury to the ureter by the use of the probe in close proximity to the Plaintiff?s one functioning and identified ureter. On this basis, the court found that the second defence was not made out. Judgment was awarded in favour of the plaintiff in the sum of 268,784.79.

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