Bellifemini v Depuy Aust P/L, Spriggins & St Andrew's Hospital Inc. No. DCCIV-00-1195

BELLIFEMINI & ANOR v DePUY AUST P/L, SPRIGGINS &
ST ANDREW'S HOSPITAL INC.
[2004] SADC 69
Judge Kelly
Civil
BACKGROUND & ISSUES

The Plaintiff sued the first, second and third Defendants for damages, for personal injury loss and damage as a result of the negligence of each of the first, second and third Defendants.
The claim arose out of an operative procedure performed by Dr Spriggins, (hereinafter referred to as ‘the second Defendant’) at St Andrew’s Hospital, (hereinafter referred to as ‘the third Defendant’) on 26 September 1997, specifically, a hip replacement procedure using componentry supplied by DePuy Australia Pty Ltd,. (hereinafter referred to as ‘the first Defendant’).
Although the Plaintiff’s claim was originally couched in much wider terms the issues before me were simplified to a great extent after the second Defendant admitted liability to the Plaintiff and an agreement was reached between the Plaintiff and the second Defendant as to the quantum of damages.
Both the first and third Defendants formally agreed that the second Defendant was liable to the Plaintiff and agreed that the quantum of the claim as agreed by the Plaintiff and the second Defendant was reasonable. Ultimately the trial in this Court proceeded on the contribution notices served as between the Defendants. The sole issue for the determination of this Court is whether either or both of, the first and third Defendants are liable to contribute.
The claim for contribution by the second Defendant was based on the claim that both the first and third Defendants had contributed to the error which was made whereby mismatched componentry was inserted into the Plaintiff’s body during the operation on 26 September 1997.
Before the first Defendant and the third Defendant can be found liable to contribute to the Plaintiff’s damages for which the second Defendant is liable it must be proved that the first Defendant and the third Defendant:-
1.Owed a duty of care to the Plaintiff which duty included a role in the selection of appropriately sympathetic componentry.
2.There was a breach by the Defendants of that duty.
3.That breach caused or contributed to the Plaintiff’s injuries.
Before dealing with the legal issues which arise for consideration it is necessary to traverse in some detail the facts.
FACTUAL BACKGROUND
Norman Bellifemini was a patient of Mr Anthony Spriggins, Orthopaedic Surgeon.
The Plaintiff had a painful hip caused by osteo-arthritis The second Defendant made a decision that he needed to undergo a hip replacement. The second Defendant determined that the operation should take place at the premises of the third Defendant. One of the reasons for that choice was because the Plaintiff also had a heart abnormality and it was recommended that he have the surgery where there is in close proximity a high dependency unit and appropriate medical staff in the event of any problems with his cardiac state.
Although the second Defendant had a regular list with the third Defendant at that time, the hospital at which he most regularly carried out orthopaedic procedures was another hospital.
The Plaintiff was admitted to St Andrew’s Hospital on 25 September 1997 and the second Defendant carried out the hip replacement operation the next day being 26 September 1997. Present in the operating theatre was the anaesthetist, an anaesthetist’s nurse, the second Defendant, an assistant surgeon, a scout nurse, a scrub nurse and a representative from the first Defendant.
One of the difficulties which faced the Court was that none of the witnesses who gave evidence about the operation had any independent recollection of the events of that day. It was somewhat surprising that notwithstanding the fact that within a day or so of the operation each of the Defendants were made aware of the mistake and in fact, corrective surgery was carried out two days later, only one witness made a note of relevant events that day. The result was that there was not one witness to give evidence in this Court who had any independent recollection of the actual procedures carried out on that day. This in turn has made it very difficult for the Court to make any detailed findings of fact about that operation.
The most helpful evidence in determining the facts came from the witness Brenda Joy. Ms Joy was called on behalf of the third Defendant and at the time when this operation was carried out Ms Joy was the scout nurse.
Generally speaking I was most impressed with the evidence of Ms Joy who is a highly experienced scrub and orthopaedic nurse. She made a note within a week or two (she couldn’t be sure of the exact date) and provided a written report to the Director of Nursing dated 7 October 1997. That report was tendered in evidence before me Exhibit 3D 21. I note that although none of the other witnesses had any independent recall of the events in the operating theatre that afternoon, nevertheless there was no evidence from any other witness or from any other source which is inconsistent with the events recounted by Ms Joy in that report marked Exhibit 3D 21. Ms Joy specifically recalled in that report opening the acetabular shell, the acetabular liner and the femoral component which had been checked by the representative of the first Defendant (hereinafter referred to as ‘Mr Painter’} and the second Defendant. Specifically Ms Joy stated that “the femoral head was chosen by the representative and verified by the second Defendant;” It was then given to her, as the scout nurse, to open onto the surgical field. Ms Joy added that she was certain that the components were checked by the second Defendant as she did not want to be responsible for such expensive hardware. She also stated “she had had the same kind of situation occur in other hospitals where the implanted hardware turned out not to be optimum and the surgeon claimed that he was not permitted to verify the components before they were implanted”.
Ms Joy trained as a Registered Nurse in the United States and in 1997 she had been qualified as a registered nurse for 20 years. Ms Joy had over 13 years experience in operating theatres and qualified as a theatre nurse in 1988. Ms Joy had been involved in over 100 hip replacement procedures both in the United States and in Australia prior to the operation on 26^tSeptember 1997.
This witness recalled the mood and demeanour of the second Defendant throughout the operation on 26^h September 1997 to be somewhat irritable and agitated. Her recollection was that on more than one occasion when he asked for components Mr Painter corrected him because he was asking for a component that was not compatible with what the femur had already been reamed to. Ms Joy said that she noticed the doctor’s demeanour on that day as she had not seen him in that state on earlier occasions when dealing with him.
Neither the second Defendant nor the two nurses involved in the operation at that time, were familiar with the range and extent of the first defendant’s componentry. It was for this reason that the second Defendant asked Mr Painter to attend the operation. In fact, the second Defendant stated “that if the representative had not been available to assist in that operation he would have rescheduled the operation for another occasion when a representative was available”.
Both Ms Joy and Ms Schantl (scrub nurse) agreed that whilst they were both familiar with the basic equipment used for a hip replacement operation they were not familiar with the more complex componentry, and instrumentation, of the first Defendant. For example, Ms Schantl explained, that there were seven trays of instruments available from the first defendant. She was familiar with only one standard tray. Nevertheless, all of the witnesses agreed with the proposition that it is fundamental that a 26 millimetre liner goes with a 26 millimetre head, a 28 millimetre liner with a 28 millimetre head and so on.
One of the particular features of the first Defendant’s componentry was that, at that stage, the first Defendant’s 26 millimetre femoral head had only three neck lengths namely a +4, a +7 and a +10.
The 28 millimetre femoral head had five variants at that time namely a +1.5, a +5, a +8.5, a +12 and a +15.5. That was specifically one of the matters about which Mr Painter was able to advise the surgeon about during the operation. It is a possibility that this lack of familiarity with the various neck ranges for each of the femoral head sizes may have contributed to the error which was made on that day.
It is, however, only one of the possibilities as to how the error was made as the second Defendant conceded in evidence before me. When asked by Mr Trim Q.C. about the possibilities, the second Defendant conceded that he could have asked for a 28 millimetre diameter. However, he thought that unlikely. He could have misread the label which was shown to him by Mr Painter. There could have been a problem at the trial reduction stage and in fact, he could have been passed a 28 millimetre head at that stage. That error was simply compounded later. That could occur, because at the time of the trial reduction, he might be trialling several different sizes of heads and liners.
All of these are equally competing possibilities and it is simply not possible for anyone involved in that operation at this stage to say precisely how the error did occur.
On the basis of the evidence I find the following facts are established on the balance of probabilities:-
·A size 26 millimetre liner was inserted into the body of the Plaintiff.
·A size 28 millimetre + 12 femoral head was inserted into the body of the Plaintiff.
·The first Defendant selected from the trolley packages containing the acetabular shell, the acetabular liner and the femoral head inserted into the Plaintiff’s body.
·The first Defendant in each case showed the second Defendant the package selected from the trolley.
·The second Defendant confirmed as the items he required the selection of the acetabular shell, the acetabular liner and the femoral head shown to him by the first Defendant as the item he required.
·The scout nurse Ms Joy in each instance received those items and either handed each of these items to the scrub nurse or placed it directly onto the surgical sterile field.
THE ROLE OF THE FIRST DEFENDANT
I deal first with the issue of whether the first Defendant is liable to contribute to the Plaintiff’s damages.
To answer that question it is necessary to examine the role of the first Defendant’s representative Mr Painter who attended in the operating theatre on the day the operation was performed. Did his role extend to ensuring that components matched? Even though it may not have been Mr Painter’s role to select actual sizes for the surgeon, was it nevertheless his role to note and remember that a 26 millimetre liner had been inserted when it came to the selection and request by the surgeon for the matching head?
At the outset I find that the first Defendant did owe a duty of care to the Plaintiff in all of the circumstances. In any event, I find that there was sufficient proximity between the first Defendant and the Plaintiff to give rise to such a duty of care. The real issue in relation to the claim for contribution is the extent of that duty and whether it was breached.
The high point of the claim by the second Defendant for contribution from the first Defendant is, that the second Defendant having been shown a package containing the femoral head size 28 millimetre + 12, Mr Painter did not then query the second Defendant’s choice of that size femoral head component in light of the fact that a 26 millimetre liner had already been inserted. At the very least, the second Defendant submitted, Mr Painter should have pointed that out to the surgeon and queried the choice.
The first Defendant is the company which supplied the componentry used by the second Defendant in the hip replacement operation carried out on 26 September 1997. Mr Painter who is now the Manager of that company (at that time he was an employee) gave evidence about his relationship with the second Defendant and the company’s relationship generally with its clients. The procedure at that time was that once a surgeon had agreed to use the first Defendant’s implant Mr Painter would meet with that surgeon and explain what options were available. Staff from the first Defendant’s company would then prepare a master list (an example of which has been tendered as Exhibit D2) of the different components and instrumentation along with any request or preferences of the surgeon. That master list would then be used to prepare the components and instrumentation, package and label it and send it off to the third Defendant a few days prior to the operation. The third Defendant would then be responsible for the sterilisation of that instrumentation.
Mr Painter agreed that he had conducted a number of training sessions with nursing staff prior to operations and would make himself available for this work to ensure that staff were familiar with the first Defendant’s componentry.
If Mr Painter had been requested to be present at an operation it was his general practice to introduce himself to the scrub nurse and offer to show her anything on the trolley before the operation commenced. He would then check the trolley of components. An example of the range and scope of componentry and equipment used was tendered in evidence in a photograph marked Exhibit D1.
During the operation itself Mr Painter would be standing outside the sterile field approximately one metre away from the surgeon. He was not able to see into the wound or view the components once implanted into the patient. He was nevertheless required to wear appropriate theatre attire but he would not be scrubbed. He also from time to time might need to leave the operating theatre during an operation to take phone calls and the like.
The kind of advice that Mr Painter would give during a particular operation might be as to the range of diameters and stem lengths available, and what the next size up might be for the component the surgeon was preparing for. Mr Painter agreed that a surgeon could not be expected to remember every possible option within a range of implants and he gave as an example of that relevant to the present case that for example a 26 millimetre femoral head does not come with a + 12 femoral shaft. If, for example, a surgeon wanted a femoral head with a +12 shaft length he would have to go to a 28 millimetre femoral head size.
Both the second Defendant and Mr. Painter agreed with the proposition that the surgeon would have a general idea of the size of the acetabular shell and femoral stem that might be required prior to the operation, However, the actual components and the neck length of the femoral stem could not be determined prior to the operation. This was the reason there are so many options and various size componentry present and available at the actual operation..
Although Mr Painter had no specific recollection of anything to do with the operation on 26 September 1997 he confirmed that it was not uncommon during operations performed by the second Defendant at which he was present, for the second Defendant to ask Mr. Painter directly for components. Mr. Painter also agreed that in his experience with the second Defendant no matter who selected the component or who actually showed the second Defendant the component it was always presented to the second Defendant for his approval. This process was to ensure that it was the surgeon who had the final approval of all componentry.
Sometimes with regard to the items which were packaged in sterile containers on the trolley he would pick up items outside the sterile field and hand them to the scrub nurse or scout nurse.
As a general procedure Mr Painter confirmed that the surgeon would usually indicate orally what size component was required. Either he or the scout nurse would then select the box from the trolley.
Although Mr Painter had no recollection of what actually transpired on 26 September 1997 he did not disagree that on occasions he would select an item from the trolley and show it directly to the surgeon for approval. He said this process can occur when the nursing staff are unfamiliar with the componentry.
In relation to the operation on 26 September 1997 Mr Painter confirmed that he attended upon the request of the second Defendant. He had not previously attended an operation of the second Defendant performed at the third Defendant’s hospital. However, he had attended other operations performed by the second Defendant at other hospitals. His recollection was that the third Defendant hospital was not the usual hospital where the second Defendant carried out these operations. Indeed, the second Defendant himself confirmed in evidence that his usual hospital for this type of hip replacement was the Kiandra Private Hospital.
Mr Painter gave evidence that it was not his decision nor did he have any input into the decision of what size components would be implanted into the patient during the hip replacement operation but, that his role was simply to advise on the range of componentry available.
It was Mr Painter, some time after the operation whether on the same day or a couple of days later, who realised that there had been a mismatch of components and subsequently phoned the second Defendant to inform him of the mismatch. Mr Painter recalled the second Defendant’s response at that time on the telephone was words to the effect:- “Oh Fuck…”.
It was not in dispute that the second Defendant carried out a second operation two days later to remove the incorrect implant and reinsert matching componentry into the hip of the Plaintiff.
The second Defendant gave evidence of his relationship with the first Defendant. It was not in dispute that the first Defendant as part of the total package offered to surgeons, provided an advisory service whereby upon request, a representative from the company who had familiarity in training in the use of the first Defendant’s componentry and instrumentation would attend at operations performed by individual surgeons to provide technical support. That support extends to advice to the surgeon as to the range and configurations of componentry available on the trolley during the operation.
The second Defendant gave some examples of the kind of questions that a surgeon might ask a representative during the course of an operation. Questions such as “What size neck length would be used with a particular sized femoral head? What sized neck could be put onto a particular shaft? What size diameter head matched a particular liner?” .
The second Defendant acknowledged that on this particular occasion one of the reasons he had requested the presence of Mr Painter was also because the nurses at the hospital of the third Defendant were not familiar with the first Defendant’s range of componentry. Reference has already been made to the second Defendant’s acknowledgement that he would not have carried out the operation on that particular day if Mr Painter had not been available to attend and assist.
The second Defendant agreed that as a matter of general practice when this particular representative Mr Painter was present, that he, Mr Painter would select components off the trolley and sometimes having made selection from the trolley he would show the second Defendant the box without speaking with either of the nurses. In this particular case, the second Defendant was not able to recall what actual procedure was employed by Mr Painter, nor did he have any specific recollection of how the femoral head had been introduced into the surgical field.
It is significant, that although the second Defendant did not recall how the femoral head was introduced into the surgical field, he did recall that he was shown the box containing the femoral head, although he could not say by whom. He acknowledged that when the box was shown to him it was close enough to read the writing on the side of the box. The writing on the box clearly indicated the size of the femoral head which was 28 millimetres + 12.

The second Defendant did not dispute that it was his duty to look at the box that had been presented to him and to give confirmation that it was the component that he required.
In answer to questions from Mr Trim Q.C. on behalf of the third Defendant the second Defendant also accepted the following proposition that was put to him:-
"QAnswer my question: do you not accept that the final call is yours, that you have the final approval; that is, it is your role to finally say yes that is the right component.
AYes”.
I accept the submission which was made on behalf of the first Defendant that the role of Mr Painter from the first Defendant’s company during an operation is to provide assistance to the surgeon, and if necessary, the nursing staff with the range of componentry available, (including instrumentation) necessary for the carrying out of the operation. However, I find that it was also his role from time to time to select components off the trolley upon request from the surgeon. Although it was not Mr Painter’s role at any stage of the proceedings to select actual sizes of componentry for insertion into a patient, nevertheless, I find that it was his role to provide assistance in relation to the range of sizes available within that componentry. That role necessarily extended to ensuring that mismatched items of componentry were not inserted into the body of a patient.
In reaching this conclusion, I have taken into account in particular, the evidence of all witnesses that it is fundamental that the same sized liner matches the same size head, even though of course there may be variations of shaft lengths within each size head.
I am not able to find precisely where and when the error occurred which resulted in the mismatched femoral head component being placed into the 26 millimetre size liner. I do find however, that irrespective of when that error occurred, Mr Painter must have been aware that a 26 millimetre liner had been inserted. He had handed that item to the second Defendant either minutes or even twenty minutes earlier. In those circumstances, I find it was the first Defendant’s role to ensure that the femoral head component was compatible in the sense that it matched the liner which had been placed. At the very least, I find, again irrespective of when the error occurred that Mr Painter ought at the very least to have queried the size component which he was handing to the surgeon.
I therefore find, that the first Defendant was in breach of the duty of care owed to the Plaintiff in respect of the damages suffered by the Plaintiff. I must determine an equitable basis for contribution. In light of my findings I consider that the second Defendant must bear a greater proportion of responsibility than the first Defendant. In particular, I note that it was never in dispute that the second Defendant made the final choice as to the componentry to be inserted into the Plaintiff and on this occasion he had the opportunity to read and check the componentry which was handed to him. He acknowledged that he was handed the component to read and was able to read it. In short, he failed to see what was there to be seen.
I find the first Defendant liable to contribute to the extent of thirty percent of the Plaintiff’s damages.
I turn now to the claim for contribution from the third Defendant in relation to the Plaintiff’s damages.
THE ROLE OF THE THIRD DEFENDANT
The basis of the second Defendant’s claim for contribution from the third Defendant was the failure by the theatre nursing staff present during the operation to follow the procedures set out in an instruction policy issued by the third Defendant. That document was tendered in evidence and became Exhibit 2D 19.
One of the stated purposes of those instructions was to ensure that a patient receives correct, undamaged sterile implants at the time of surgery. The procedures set out at point seven of that document under the heading “Method” are, for convenience, set out below.
“7. Method
·At Scrub RGN’s direction, the scout nurse will select the appropriate item according to type and size as indicated by the surgeon.
·The scout nurse shows the selected item to the scrub nurse, with all details of packaging label easily visible (eg style, size, make, correct side etc).
·When the registered general nurse is satisfied that the correct item has been selected, the scout nurse will then show the item to the surgeon, ensuring packaging label showing appropriate details is easily visible.
·On receiving a verbal confirmation from the surgeon that the item is correct and should be opened, the scrub RGN will direct the scout nurse to open outer packaging layer of item (eg remove from box and plastic wrap).
·Prior to opening item onto sterile field, the registered general nurse should re-check the details on this packaging label to ensure an error with the packaging has not occurred.
·When the scrub RGN is fully satisfied that the item is correct as requested by the surgeon, he/she may direct the scout nurse to carefully open item and ensuring sterility has been maintained, may receive item from the scout on the sterile trolley.
·For items sterilised in SATS, the biological indicator is to then be incubated as per normal procedure and results recorded in the book provided. A failed Biological Indicator must be reported as per procedure.”.
The second Defendant claimed that the method prescribed in that document was applicable during all implant surgery and that that method had not been followed during this operation. It was argued that in allowing Mr Painter to, in effect, subvert that method by which the nursing staff ordinarily would check that the componentry was the correct componentry required by the surgeon, that the third Defendant was negligent.
The second Defendant claimed that if the method had been followed that the mistake would not have occurred.
The relevant legal principles are well established. A hospital has a duty of care, which is non-delegable, to ensure that the treatment it undertakes to provide is performed with reasonable care. The question in every case is the nature of that undertaking. The evidence in a particular case may establish that the third Defendant’s undertaking was of a more limited kind. The non-delegable duty of the hospital may only extend to nursing care and perhaps the question of other medical care. Ellis v Wallsend District Hospital (1989) 17 NSWLR 605.
The question which arises in this case is whether the third defendant has breached its duty of care to the Plaintiff and to answer that question it is necessary to look more closely at the facts and at the role of the theatre staff in that operation to determine the extent and the scope of the third Defendant’s duty to the Plaintiff.
It is also necessary to look closely at the instructions contained in Exhibit 2D 19 and to determine whether in truth those instructions were applicable universally as alleged by the second Defendant or whether, as alleged by the third Defendant, they were instructions applicable only in certain circumstances.
Was there an obligation on the nursing staff during the operation of 26 September 1997 to recheck with the second Defendant the choice of componentry which he had made and already confirmed with the first Defendant?
Two nurses, namely a scout nurse and a scrub nurse were employed to assist the second Defendant during that operation.
The responsibilities of a scout nurse broadly speaking are to assist the scrub nurse, at times to leave the operating theatre to retrieve drapes, swabs or other instruments that are not in the operating field that might be called for throughout the operation, to get out the sterile gowns, sterile draping, to help set up the sterile trolleys with the scrub nurse and generally to provide assistance to the scrub nurse.
The scrub nurse has the responsibility of ensuring that the operating theatre is set up, the table is in the right place, the sterile trolley is set up, the instruments that are going to be brought into the field are sterile, to check that all of the componentry is available on the trolley before the operation starts, to count all of the swabs, packs, needles in and out and to hand the sterile instrumentation and componentry to the surgeon.
On 26 September 1997 two very experienced nurses performed the roles of scout nurse and scrub nurse respectively. I have already commented on the evidence of Ms Joy.
Both Ms Joy and Ms Schantl gave evidence about the document marked Exhibit 2D 19 and the circumstances in which the instructions in that document apply..
It is necessary to say something about Exhibit 2D19. The document itself is headed “Implant/Prosthesis Checking & Monitoring of Sterilisation Process”.
The second Defendant contended that paragraph 7 of that document prescribed a method by which the scout and scrub nurse were to proceed in relation to each and every implant operation irrespective of whether a representative was present or not. It was not in dispute that the nurses present for the operation on 26 September 1997 did not follow the procedure set out in paragraph 7. The second Defendant contended that the failure by the nurses to follow the method prescribed in that document was negligent and has causally contributed to the mistake which was made by the second Defendant. Indeed, it was argued that if the procedure had been followed by the nurses that the mistake may not have occurred.
That submission is quite at odds with the evidence of each of the three nurses who were called to give evidence about their general practice and in particular the applicability of the method prescribed in paragraph 7 during operations when a representative was present.
I accept the evidence of the nurses that the method prescribed in paragraph 7 of Exhibit 2D 19 is there to have a check and balance in the event that inexperienced junior staff are assisting a surgeon. It is not uncommon in the case of scout nurses to have a scout nurse who is in fact, a very junior and inexperienced nurse and in that event what they might select as the appropriate item needs to be checked and put in front of the surgeon for approval prior to the opening of that box. That is the method which is followed when representatives from the manufacturer are not present during an operation.
Even without the benefit of the nurses’ evidence it seems plain from the first four points in paragraph 7 of the document that that method is prescribed on the assumption that the scout nurse is the person selecting items from the trolley.
It is accepted that in the case of this operation that Mr Painter selected the items from the trolley. It is not in dispute that Mr Painter showed the second Defendant the box containing the femoral head and it is not in dispute that the surgeon confirmed the correctness of that choice.
In these circumstances not only is the method prescribed in paragraph 7 superfluous, even if it had been followed there was nothing left for the scout nurse to do in terms of confirmation from the surgeon, because confirmation had already been given.
It was suggested by the second Defendant that the nurses should have been alert to the fact that a 26 millimetre liner had been placed in the acetabular shell. There was evidence about the timing when the liner was placed in relation to when the femoral head was requested. Although the second Defendant had no memory of that particular operation it was generally his practice to call for the acetabular shell and lining and the femoral head within a few minutes of one another. Evidence from Mr Painter and the nurses tended to suggest that there might be a delay of up to 20 minutes between those stages of the operation. To complicate matters even further if, as the surgeon suggested, the error occurred at the trial reduction stage then there would also have been a further gap between that stage and the final insertion of the components.
The choice as to the size and diameter of all components used is the surgeon’s and his alone. For reasons which were explained by the second Defendant that choice cannot be made until the operation is actually in progress. Sometimes different size components are used during the trial reduction process. These are all matters peculiarly within the province and expertise of the surgeon.
In addition, on the occasions when a representative from the manufacturer is present, the procedure which occurred on 26 September 1997 often occurs. That is, Mr Painter selects items from the trolley as requested by the surgeon and shows them to the surgeon for verification. I was told that this procedure was not uncommon and no witness disagreed with that proposition.
I find that this procedure was adopted on 26 September 1997.
I find that the instructions to the nursing staff in Exhibit 2D 19 does not apply where, as in this case, a representative from the manufacturer is present.
I find that it was not part of the duty of the nursing staff to in effect assume a supervisory role in relation to the second Defendant’s choice of componentry in that operation. Furthermore, they were in no position to do so, given that the choice and selection of componentry from the trolley was made by the second Defendant and Mr Painter.
The instruction to nursing staff would obviously apply in a situation where a representative without the technical expertise and knowledge of Mr. Painter was not present.
The instructions to nursing staff are a simple and efficient method to ensure that the surgeon has an opportunity to verify the componentry to be opened where no representative is present performing that same role.
I accept the evidence of the nursing staff and the administrator that the instructions at point seven of Exhibit 2D 19 were never intended to apply where a representative was present in the operating theatre assisting the surgeon.
Apart from the suggestion that the nursing staff failed to follow those instructions there has been no suggestion that either of the nurses assisting in the operation that day made any other error or errors which could have contributed to the mismatched components being placed into the Plaintiff’s hip.
The second Defendant has not demonstrated that there was any negligence on the part of the nursing staff and in view of my findings in relation to the real purpose of the instructions to nursing staff in Exhibit 2D 19, I find that the failure to follow those instructions during the operation on 26 September 1997 did not amount to any delegation of the nursing staff’s duty.
Even if I am wrong in concluding that there has been no breach of duty on the part of the nursing staff by failing to follow that instruction, it has not been demonstrated that even if the instructions had been followed that the result would have been any different.
The second Defendant confirmed with Mr Painter the choice of the femoral head which he required. Mr. Painter handed that item of componentry to the scout nurse who handed it either to the scrub nurse or opened it directly onto the sterile field.
There is no suggestion that either of the nursing staff picked up a package which had not been verified by the surgeon and handed to the scout nurse by Mr. Painter. The evidence overwhelmingly points to the mistake having occurred at an earlier stage either at the trial reduction stage or at some stage during the selection of the final componentry to be used in a communication which passed between the second Defendant and Mr. Painter. It is not possible to say how or when precisely that error occurred.
However, whenever it occurred there was effectively nothing left for either of the nursing staff to check or confirm other than that the item of componentry was sterile when it was introduced onto the surgical field. There is no suggestion that it was not..
It follows that even if the nurses were under a duty to follow those instructions irrespective of whether a representative was present that the failure to do so on this occasion did not causally contribute to the mismatched componentry being placed into the body of the Plaintiff.
For these reasons the second Defendant’s claim against the third Defendant must fail.

[2004] SADC 69

3 May 2004