Clothier v Dr Fenn and Greater Southern Area Health Service

[2010] NSWDC 96

CITATION:	Clothier v Dr Fenn & Greater Southern Area Health Service [2010] NSWDC 96
HEARING DATE(S):	9,10,11/11/09, 11/12/09
JUDGMENT DATE:	1 June 2010
JURISDICTION:	Civil
JUDGMENT OF:	Williams DCJ at 1
DECISION:	Verdict for each defendant against the plaintiff. Plaintiff to pay the defendants costs. Application for indemnity costs for first defendant refused.
CATCHWORDS:	Catchwords:- Negligence – professional negligence – causation – PTSD – hypernatremia – alleged failure to diagnose and treat – negligent treatment by hospital – relationship of any negligent act to damage sustained.
LEGISLATION CITED:	Civil Liability Act
CASES CITED:	Tabet v Gett [2010] HCA 12, Adeels Palace Pty Ltd v Moubarak & Bou Najem; [2009] HCA 48 Jovanovski v Billbergia Pty Ltd [2010] NSWSC 211 Gett v Tabet (2009) NSWCA 76
PARTIES:	Kimberley Clothier Dr Christopher Fenn The Greater Southern Area Health Service
FILE NUMBER(S):	Bega: 2/2008
COUNSEL:	For the plaintiff:- Mr G Little SC with Ms T Moisidis For the first defendant:- Mr M Windsor SC For the second defendant:- Ms J Sandford
SOLICITORS:	Beston, Macken McManis Avant Law Pty Ltd General Insurance Law Department

Preliminary facts:-

1 On 7/1/2006, Ms Clothier was participating in the final leg of the George Bass Classic, an ocean lifeboat race held bi-annually. She had participated in each of the five earlier stages of the race which began on 2/1/2006 although the women’s race had a rest day on 6/1/2006 when no women’s teams competed. On 7/1/2006, after completing the race and after their lifeboat had beached at Pambula, Ms Clothier began to feel unwell. She went to Merimbula where people were camping for the night, but her condition worsened. Dr Fenn, the race doctor, was called and he arrived and commenced treating her, eventually placing her on a drip. He contacted the ambulance when her condition worsened and she was taken to Pambula Hospital where further treatment was commenced.

2 Her condition deteriorated. At about 18:30 she was diagnosed as suffering from a condition called hyponatremia and was eventually airlifted to Canberra Hospital in an induced coma. She recovered with few physical consequences but developed Post Traumatic Stress Disorder and Depression that has significantly affected her life since. She sues Dr Fenn and the Greater Southern Area Health Service (GSAHS) being the Pambula Hospital for failing to properly diagnose her condition and for treating her in an inappropriate manner that worsened rather than alleviated her condition.

3 Hyponatremia is a condition that can occur in people engaged in endurance sporting events and comes about because of reduced blood sodium levels plus excessive water intake and endogenous production of water as a by-product of anaerobic metabolism of exercise at a high level. The usual indication of the condition is an increase in the individual’s weight following exercise and excessive fluid intake. The sodium balance in the body is effectively diluted. Hyponatremia can cause an excess of extra vascular water in the brain, leading to cerebral oedema and, if untreated, even death.

4 Over the course of the race period, crews would row for about 2 hours a day travelling a distance of about 20 kilometres. In each boat were 4 female rowers and a male sweep. The rowers did not row for the full 2 hours but worked, as it were in relays, changing crew about every 20 minutes although at times the same crew might row for up to 35 minutes if the exigencies of the race demanded it. There was a team of 10 rowers for Ms Clothier’s boat although two were substitutes and did not row. The procedure for a change over was that the sweep would signal a change and the rowers would secure their oars and jump overboard to be picked up by an inflatable boat and taken to a support vessel. The relieving crew would have been dropped in the water about 60 metres ahead and as the boat’s momentum carried it up to them, they would climb aboard. The support vessel had food, drink, towels, and jackets on board.

5 Ms Clothier had been training with her crew for this event for some time. I am satisfied that she was both qualified and fit to participate.

6 During the course of the race, she had suffered from seasickness on the support vessel and had seen Dr Fenn who prescribed Maxalon by injection to assist. Although she had a “dystonic” (see Dr Danta 7 Feb 06) physical reaction to the Maxalon there is no evidence to suggest that such treatment was inappropriate, nor is there any suggestion that Maxalon might cause hyponatremia.

7 There are a number of medical conditions that could confront participants in an event like this. Namely –

(1) HYPOTHERMIA – a condition where the body cannot maintain the correct temperature leading to a lower body temperature;
(2) DEHYDRATION – a failure to keep the body hydrated;
(3)HYPERTHERMIA, HYPERPYREXIA, HEAT EXHAUSTION – where the body becomes over heated; and
(4) HYPONATREMIA – The body develops an abnormally low blood sodium level.

8 However I accept that hyponatremia is a rare occurrence, especially in a staged event like the George Bass Classic. (see Dr Dalton TP 14)

9 Dr Fenn (who also has a diploma of sports medicine) was aware of hyponatremia but did not think it was a foreseeable problem likely to occur in this event. He agreed that his provisional diagnosis given to ambulance officers was hypothermia and dehydration. He diagnosed Ms Clothier’s actual condition at about 1800hrs after visiting the hospital later that day. That diagnosis then was based on changed physical signs, namely noticeable facial swelling, compared to when he had last seen Ms Clothier at 1400hrs.

10 The time frame of what occurred is important and some of that can be gleaned from the ambulance records and hospital notes.

11 It appears that Ms Clothier arrived at the oval about lunchtime. When her condition did not improve, Dr Fenn was contacted. He said this occurred while he was having lunch in Merimbula. He drove to the oval and began treating Ms Clothier. Mr Clothier was also present and has given evidence.

12 It appears Dr Fenn booked the ambulance at 13:48 on his mobile. He had to walk from where Ms Clothier was being treated to the entrance of the oval to identify the nearest cross street for the ambulance. He decided that he should ring for the ambulance because a Doctor’s call was more likely to get a quicker response.

13 The ambulance arrived at the scene at 14:04, i.e. 16 minutes after the call. It left with Mrs Clothier at 14:14 and arrived at Pambula hospital at 14:30. She was admitted into the emergency department at 14:40.

14 Mr Clothier gave evidence that he arrived at the oval at about 14:00 and was told that Dr Fenn was on the way. This clearly can’t be correct and he must have arrived much earlier than that.

15 No criticism is made of Dr Fenn’s treatment of Ms Clothier during the course of the race. The only critical behaviour in question is that of both he and the hospital on 7/1/06.

16 Dr Fenn graduated in 1973 and had practiced initially in the United Kingdom and since 1977 in Moruya. He has been the race Doctor for the George Bass Surfboat Marathon since 1988 and is a member of the Moruya Surf Life Saving Club. His services were in an honorary and unpaid capacity. Over the years he has treated a variety of conditions that have occurred during the race such as minor abrasions, blisters, sunburns, chicken pox, colds, tonsillitis, infections, traumatic injuries and injuries caused by heat, cold, and exhaustion.

17 He said that after he was called it took him about 10 minutes to get to Berrambool Oval. He saw Ms Clothier who did not look well. She appeared to be shaky and was wrapped in a blanket. He took her pulse, which was normal, but her skin was cool to the touch and she wasn’t as coherent as he would have expected. She was in a breezeway and it was quite cool. Her temperature was 35 Degrees Celsius. He asked those with her what had happened and was told she was getting worse, had a headache and was weak. He asked if she had anything to eat and drink and was told she had and had managed to keep that down. He said she should be taken out of the breeze and laid down somewhere more comfortable. She should be given warm fluids and sugary foods and that someone should set her tent up and hopefully with a lie down she would get better.

18 She was moved around the corner and put on a massage table that someone unknown had produced. Dr Fenn said she was placed sitting up on the table with her back supported by a chair, although Mr Clothier could not remember the latter. Dr Fenn supported her from behind for stability and warmth. She was given a warm drink which he thought was Milo or something similar, because she needed some calories after the race. Apparently she also ate a salad roll, although Dr Fenn can’t recall that. It is unlikely that she drank more than 300 millilitres of Milo.

19 About 15 minutes after he arrived, Ms Clothier vomited about 300-400 millilitres and emptied her bladder. He felt she was not absorbing what was being given to her and she should not be given anything else. He then felt that she was suffering from a more significant problem than previously thought and should be hospitalised. She was also much less coherent.

20 Dr Fenn then rang for an ambulance. When he returned to Mrs Clothier he inserted a cannula and began an intravenous (I/V) normal saline solution (0.91%). The ambulance arrived about 25 minutes after he called.

21 When he later found out that her condition was worse, he went to the hospital and saw her and noted that she was deeply unconscious and had significant facial swelling. He then thought she was suffering from hyponatremia.

22 Hyponatremia is not a condition that can be properly diagnosed from observation. It requires a blood test to establish the patient’s sodium levels. Pambula Hospital did not have the capacity to carry out such pathology so Ms Clothier’s blood was sent to Bega Base Hospital some 45 minutes away. Tests were completed and the results made available to Pambula Hospital, which seems to have been shortly prior to 18:30pm because at 18:30pm intravenous dextrose and saline were stopped, with Ms Clothier’s Glasgow Coma Scale (GCS) at 8/15.

23 In the absence of eyewitness evidence the documentation becomes important. The ambulance report indicates that a call was made at 1348hrs and it arrived at the scene at 14.04. The patient’s chief complaint recorded is “hypothermia, dehydration, vomiting”. At 14.10 the paramedics assessed her Glasgow Coma Scale (GCS) as being 15/15 and the same again at 14:25pm. When triaged at the hospital at 14.40 the GCS was 14/15. The hospital notes state “hypothermia, contestant in George Bass Marathon. Vomit on arrival 250mls. Incontinent urine.” Under provisional diagnosis is written:- “Very sleepy, rouses to voice. N/Saline 1 litre commenced pre-hospital”.

24 This tends to confirm the state of Ms Clothier’s degree of awareness by the time she reached the hospital and her own evidence that she was substantially unaware of what was happening after the ambulance had arrived at the oval.

25 At 15.30 Ms Clothier had used most of the litre of I/V saline and the vomiting was under control but at 16.00 her GCS had dropped to 11/15. At 16.30 she was still GCS 11/15, “not under control, not responding to verbal stimuli”. At 16.38, an electrocardiogram was performed and was normal. At 16.45 1 litre I/V dextrose 4% + N/5 Saline was commenced. This solution was NOT a normal saline solution as had been administered by Dr Fenn. At 17:20 a 2nd litre of dextrose saline was commenced. At 17.45 blood was collected and sent to Bega Hospital pathology for analysis as Pambula Hospital did not have a pathology department. The GCS was still 11/15. At 18:15 an indwelling catheter was inserted draining 1400 millilitres and a further 2 litres by 21:00pm.

26 At 18:20 her GCS had dropped to 8/15. At 18:30 with a diagnosis of hyponatremia, the I/V was stopped. At 18:50 her GCS was still 8/15. At 19:30 she was intubated and at 20:05 was administered an I/V Diuretic called Lasix. At 22:00 she was airlifted to the Canberra Hospital and triaged at 23:37. She was admitted to ICU at 01.01 on 8 January. She was extubated the following morning.

27 In the early stages of her condition whilst still at the oval, Ms Clothier indicated that she became so frightened as to her condition that she did not want her children to see what was happening to her and asked for someone to look after them away from where she was. She remembers little about events once placed in the ambulance. I have no doubt that her deteriorating physical condition, caused by the hypernatremia, would have been an extremely frightening experience for her and that she genuinely and realistically thought that she was going to die. Her final memory before waking in Canberra Hospital is someone taking off her costume and shirt and replacing it with another T-Shirt, wrapping her in a doona and something being said about calling an ambulance (TP25/26).

The submissions:-

28 At the close of the evidence on liability I provided the following document to counsel for the parties:-

In their submissions I would like counsel to address the following in particular:-
Given that the Plaintiff has sustained a psychiatric injury as opposed to a physical injury, I would like counsel to specifically address the issue of what evidence there is of negligent acts on the part of the defendants, and in particular the hospital, that can be causally related to that injury suffered by the plaintiff?
Dr McClure says that she is suffering an ongoing major depressive episode with some elements, but not the full syndrome, of PTSD. It is unclear from his report how the plaintiff’s experiences relate to those specific diagnoses as opposed to those experiences being capable of producing a generalised psychiatric disorder .
He also relates her psychiatric disorder to Mrs Clothier’s conscious awareness of the things that were happening to her. However this relates to a period before she was at the hospital when she was still relatively aware of things because in evidence she says that her last memory is of being put in the ambulance and her next of waking up in Canberra Hospital. She also spoke of thinking she might die and sending the children away as she didn’t want them to see her in that condition.
I am uncertain on the evidence exactly what Dr McClure is saying about the relationship between her conscious fears and a psychiatric injury she may have suffered, if any, while unconscious.
Even if the hospital was found to be negligent in its treatment of Mrs Clothier by the administration of an I/V fluid containing Dextrose, what psychiatric injury has she suffered thereby given that there was no actual brain damage or other physical injury and she has no memory of her treatment in hospital?

29 Subsequent to this document being made available, Mr Little SC filed a notice of motion to re-open the case and to call further evidence from Dr McClure. That was opposed by Mr Windsor SC for Dr Fenn and Ms Sandford for the hospital. The application was refused and is the subject of a separate judgement.

30 Ms Clothier’s counsel argues that in the present case, the plaintiff does not rely on pure psychiatric injury, but relies on psychiatric injury resulting from physical injury caused by the negligence of Dr Fenn and the hospital.

31 Reference is made to section 27 of the Civil Liability Act, which defines “consequential mental harm” as mental harm that is a consequence of a personal injury of any other kind. Section s 32 (1) provides that a person (the defendant) does not owe a duty of care to another person (the plaintiff) to take care not to cause the plaintiff mental harm, unless the defendant ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken. For the purposes of “consequential mental harm”, the circumstances of the case include the personal injury suffered by the plaintiff are to be taken into account in the application of the section.

32 However the fact is that neither Dr Fenn nor Pambula Hospital by any action caused Ms Clothier’s hyponatremia. That seems to have been the result of a constitutional problem in association with participation in the event in question. It was the hyponatremia that began to cause the symptoms that Ms Clothier was experiencing not anything done or not done by Dr Fenn or the hospital. Those symptoms worsened over time until Dr Fenn felt it was obligatory that she be hospitalised. Whilst at that stage it was a remote possibility that Ms Clothier could have been suffering hyponatremia, her symptoms were initially consistent with more probable causes, namely hypothermia or dehydration. It was when she became incontinent of urine that Dr Fenn suspected a more serious underlying cause. He then rang an ambulance and commenced her on a normal I/V saline solution which was, according to Dr Raftos, the most appropriate treatment to commence.

33 The only possible “personal injury” that looms as of any consequence in this case is the fact that the hospital treated Ms Clothier with the incorrect intravenous solution which may have caused her physical injury but about which there is no evidence that it was likely to cause PTSD or depression at that stage of her treatment.

Dr Fenn

34 I cannot see that Dr Fenn either did or failed to do anything up to and including her admission to hospital that any reasonable practitioner in his position would have done or failed to do. This is not really a case where section 32 applies because the plaintiff’s fear was caused by a non-negligent shock, namely the hyponatremia and there has been no evidence adduced that would establish on balance that Dr Fenn should have immediately recognised her illness or, more importantly, that anything he did thereafter would have, in any event, had any measurable effect on the how she was feeling while conscious.

35 On the issue of diagnosis of hyponatremia Dr Dalton and Dr Raftos said at TP8:- “Dr Dalton …You go through a rapid quick fire clinical assessment and what are the likely diagnosis and what’s foreseeable and as the condition changes you may have to revise your views but I think in this case I don’t believe that clinically he could have diagnosed hyponatremia with any confidence at that time and I don’t know that it is manageable any different to be quite honest to make the diagnosis of hyponatremia you have to get the results of investigations and you certainly wouldn’t be introducing hypotonic saline or other emergency measures on the basis of a clinical presentation at the site of a race.

36 “Dr Raftos: I agree with Dr Dalton. In a situation like this a person coming from an endurance event you would be thinking about several things, hyperthermia, hypothermia and hyponatremia would be in there but certainly you can’t make the clinical diagnosis without the sodium. So really the diagnosis often when I’ve made the diagnosis it’s been when I’ve seen the sodium. It’s a very difficult diagnosis to make without it. So it’s not reasonable to say that someone has said, “Look, she’s got hyponatremia” just based on looking at her or her symptoms or whatever. It really is dependent on seeing the sodium. Having said that, you know, if you were treating her with intravenous fluids for dehydration or whatever those fluids should have been saline and it was inappropriate to treat her with dextrose containing fluids whether you had made a diagnosis of hyponatremia or not.”

37 This evidence is relevant to the issue both of Dr Fenn’s actions as well as the hospital’s actions. It is relevant to the practical ability of Dr Fenn to diagnose Ms Clothier and what he could have done if he had diagnosed Ms Clothier’s illness Accurately. It is relevant to the hospital’s incorrect I/V treatment, the consequences of which are discussed elsewhere.

38 Further there is no evidence that any treatment that Ms Clothier could have been offered by Dr Fenn at the oval would have made any appreciable difference to how she was feeling in herself from the effects of her hyponatremia given that her undoubtedly frightening illness was not the result of any negligent act of either Dr Fenn or the hospital.

39 Indeed the only evidence as to the likelihood of the progress of Ms Clothier’s illness comes in evidence from Dr Raftos. At TP 20 he was asked “do you agree that the plaintiff’s condition prior to her presentation at the hospital was such that she was always going to require intensive hospital treatment in any event?” to which he responded, “Yes I agree with that”.

40 He was then asked “What would the effect be of having a further two litres of fluid containing only one-fifth of normal saline solution be on that existing condition?” He replied at TP 21 “It would have worsened the extent and the severity of her cerebral oedema and - dextrose containing fluids don’t hold the water within the blood vessels, you give fluid - dextrose containing fluid, the dextrose gets metabolised, and that’s what’s holding it in the intravascular space. It then moves quickly into the tissues and in Ms Clothier’s case the fluid moved into her brain, or it would have moved into her brain and that would have worsened the cerebral oedema, which was already present. It would have made it worse.”

41 He was also asked “And the amount, for instance, 2 litres, say, is that of any significance?” to which he responded, “It’s a significant amount of intravenous fluid, two litres of water, when you take away the dextrose which is what the body does, it’s two litres of water and that water goes somewhere. And in this case at least a proportion of it, I would guess, went to the brain. So that would have made her cerebral oedema worse and it would have worsened, as I said before, the extent and the severity of her illness notwithstanding that, she would have needed to be in hospital for a period of time in any case.”(emphasis added)

42 One criticism made of Dr Fenn is that “once he realised her situation was more serious than expected, his communication of the incorrect and known to be incorrect diagnosis to the hospital with the consequences that it was likely to mislead the hospital in its treatment of the plaintiff was irrational and would not be regarded as accepted in Australia by peer professional opinion as competent professional practice. It is submitted that it is for the doctor to establish that proposition in any event and he made no attempt to do so”. (par16 p/s).

43 I think this submission is misconceived. True it is that at a later stage everyone knew that Ms Clothier was suffering from hyponatremia, but that was something that could only be definitively established by a blood test that wasn’t available to Dr Fenn and not available to the hospital until about 18.30 that evening. The criticism of Dr Fenn is that he told the ambulance personnel that he thought she was suffering dehydration or hypothermia. The plaintiff submits in this regard that “It is clear from the evidence in this case that the communication by Dr Fenn of an incorrect diagnosis had substantial causative potency by misleading the hospital into the acceptance of the incorrect diagnosis leading to the delay in the taking of proper steps to obtain specialist advice, which would have led to a totally different treatment regime to that undertaken by the hospital.”

44 The trouble is that the evidence to support such a submission is sadly lacking. In any event, once a patient has reached a hospital in an emergency situation, it is for the hospital to re-assess the patient and not to necessarily rely on either another doctor’s opinion, who is not connected with the hospital, or to rely on any opinion of the ambulance officers. It cannot be that the hospital is entitled to operate on a “chinese whispers” scenario because that would be totally unacceptable from the point of view of a duty of care both medically and at law. What if the ambulance officers misheard the doctor? What if the triage nurse misheard the ambulance officers? In any event Dr Fenn commenced the most appropriate treatment for any possible conditions affecting Ms Clothier by commencing her on a normal I/V saline solution.

45 The plaintiff further argues that as “at the time he called the ambulance, Dr Fenn, at the very least, knew that the plaintiff was not suffering from dehydration and was most likely suffering from a condition more serious than hypothermia. Taking this into account and reconciling it with the … evidence of Drs Dalton and Raftos, Dr Fenn acted negligently in his treatment of the plaintiff and, therefore, it could not be widely accepted in Australia by peer professional opinion as competent professional practice. The plaintiff submits that an alternative construction of the evidence of Drs Dalton and Raftos would be irrational and to that extent should be disregarded.”

46 I disagree. I am not satisfied that Dr Fenn at any stage treated Ms Clothier in a way that would not be widely accepted in Australia by peer professional opinion as competent professional practice. To conclude otherwise would not be a reasonable inference to draw from the evidence of Drs Raftos or Dalton. But even if it was, it does not answer the causative problem that, even if Dr Fenn was negligent, how was that negligence causative of Ms Clothiers current problems. In that regard I am not satisfied that there is any evidence capable of bridging that divide.

47 The only substantial evidence on causation is that contained in the report of Dr McClure, a psychiatrist who saw Ms Clothier on 14/06/07. He says at P7 “that following a potentially life-threatening medical emergency she has developed a psychiatric disorder…of an ongoing Major Depressive Episode with some elements of Post Traumatic Stress Disorder” (PTSD)

48 At page 8 he says “the incident in question was terrifying for Ms Clothier. She strongly believed that her death was imminent and that she was hopeless to prevent this. Her level of consciousness was waxing and waning. She was aware of disturbances of gait, speech and consciousness and recalls being “incoherent.” She feared she would not see her children again. Such an incident is capable of producing a psychiatric disorder in a person of normal fortitude.”

49 There being no evidence to the contrary, there is no reason for me not to accept what Dr McClure says. However, the true quandary in this matter is whether any negligence of either Dr Fenn or the hospital was causative of the matters that Dr McClure relates as to why Ms Clothier suffered PTSD and depression because on Dr McClure’s analysis, the cause of the effect were things Ms Clothier was feeling that were un-related to anyone’s negligence.

50 There is no suggestion that Ms Clothier’s suffering from hyponatremia was caused by anyone’s negligence. The allegations of negligence relate to the way in which she was treated after she became ill.

51 Joint evidence was given by Dr Raftos, a specialist in emergency medicine and Dr Dalton, a specialist in rehabilitation and sports medicine. In addition to their oral evidence both have also provided written reports. They had both also read the transcript of the evidence of Ms Clothier, Mr Clothier and Dr Fenn and had access to the records of the Pambula Hospital.

52 What is clear from their evidence is that there is nothing Dr Fenn did or failed to do that was not in accordance with recognised medical practice. By the time Ms Clothier had reached the oval, she was experiencing symptoms relevant to an abnormally low blood sodium level. Both specialists agreed that it was inevitable thereafter that Ms Clothier would require treatment in an intensive care facility. It was also agreed that what exactly was causing Ms Clothier’s symptoms could not be properly determined until a blood test had been carried out. The symptoms experienced by Ms Clothier were symptoms that could have been caused by a number of things, some related to her involvement in the race she had just finished as well as possible medical conditions entirely unrelated to the race.

53 As to the criticism made of Dr Fenn in providing a provisional diagnosis of hypothermia rather than just saying nothing, the specialists agree that whether a doctor provides a preliminary diagnosis or remains silent depends upon factors unrelated to any question of negligence. It thus may be better to indicate what the doctor is thinking rather than for him or her to say, “I don’t know”. However, the specialists did not criticise Dr Fenn’s actions in his initial treatment in calling an ambulance, and then in providing Ms Clothier with an emergency saline drip.

54 The particulars of negligence against Dr Fenn ran from (a) to (v) in the statement of claim although most of those have now fallen by the wayside in the way the case was conducted and the evidence that has been given. Ms Clothier’s counsel no longer presses any allegation of negligence on the part of Dr Fenn for any period other than the period in which he treated her at Berrambool Oval. Whilst Ms Clothier’s condition turned out to be different to what Dr Fenn initially suspected, I am not satisfied that he was negligent in failing to diagnose hyponatremia, especially without having the results of a blood test. Nor am I satisfied having regard to the expert evidence, that Dr Fenn was negligent in any way in his treatment of Ms Clothier at any stage up until she was taken out of his care by ambulance officers.

55 Mr Windsor SC for Dr Fenn made the following submissions with which I agree for reasons already stated:-

56 Dr Fenn's conduct did not cause hyponatremia. The plaintiff was probably suffering from the symptoms of hyponatremia by the time Dr Fenn saw her at Berrambool. (see Raftos, TP17 & 19-26)

57 There is no evidence that any communication by Dr Fenn to an ambulance officer had any substantial causative potency as is contended. Similarly, there is no evidence that Pambula Hospital was misled by Dr Fenn nor is there any evidence that the attending personnel at Pambula Hospital made an incorrect diagnosis on the basis of anything said or done by Dr Fenn. Moreover Dr Fenn's conduct did not delay the taking of proper steps to obtain specialist advice. It also cannot be said that if Dr Fenn had taken another course, a totally different treatment regime would have been undertaken at Pambula Hospital.

58 The plaintiff is not in a position to say that by offering the possible diagnoses he did, Dr Fenn engaged in un-acceptable conduct. None of the passages relied upon by the plaintiff are consistent with Dr Fenn being unreasonable in passing on information about the possible diagnoses to the ambulance officers. It is wrong of the plaintiff to say that Dr Fenn thought that the plaintiff was "most likely" suffering from a condition "more serious" than hypothermia because he did not know what condition the plaintiff was suffering from at that time.

59 The plaintiff asks the court to reject the evidence of Dr Raftos but Dr Raftos was the medico­-legal specialist qualified by the plaintiff.. Finally the plaintiff never pleaded a case based on an alleged failure of Dr Fenn to properly advise the hospital of doubts concerning diagnosis.

60 In those circumstances, I am not satisfied that the plaintiff has established a breach of any relevant duty of care owed by Dr Fenn to Ms Clothier and there should therefore be a verdict for Dr Fenn against the plaintiff.

The Hospital

61 The case against the hospital is somewhat different to that alleged against Dr Fenn. The evidence of Dr Dalton did not deal in any way with the hospital’s responsibilities but Dr Raftos’ evidence did. No evidence was called on behalf of the hospital or the GSAHS.

62 The only substantial criticism of the hospital’s treatment relates to the hospital changing the I/V solution from a normal saline one to a dextrose/saline one about which Dr Raftos said in his report that “the use of 4% dextrose and N/5 saline was clearly inappropriate treatment in the circumstances. N/5 saline has one fifth of the sodium concentration of serum. When it is infused, it lowers the serum sodium concentration and causes movement of water from the intravascular space into the extravascular and interstitial spaces where the extra water causes oedema. N/5 saline is an inappropriate fluid for resuscitation or rehydration for any condition and places the patient at an unnecessarily high risk of developing cerebral oedema as a consequence of movement of fluid into the interstitial space. The use of N/5 saline for rehydration in Mrs Clothier's case represents a significant departure from what is widely accepted by peer professional opinion in Australia in 2008 to be competent professional practice. The use of N/5 saline caused, on the balance of probabilities, a substantial increase in Mrs Clothier's cerebral oedema and increased the severity and duration of her critical illness caused by hyponatremia.”

63 At the oval, Dr Fenn infused Ms Clothier with a normal saline solution being 0.91% saline. That drip continued at the hospital until after 16:00 when Clothier’s GCS had dropped from 14/15 to 11/15. At 16:45 she was started on an infusion of Dextrose 4% and a 1/5 concentration of normal saline, a different solution to the solution administered by Dr Fenn. However her GCS remained at 11/15 until 17.45 and did not decrease further until 18.20 where it apparently remained at 8/15 until she was intubated. Dr Raftos says that this latter I/V treatment was inappropriate because it lowers the serum (blood) sodium concentration and causes movement of water from the intravascular face into the extra vascular and interstitial spaces (of the brain) where the extra water causes oedema (swelling).

64 The plaintiff argues that “it is clear that the infusion undertaken at the hospital was at a vastly increased rate than that undertaken by Dr Fenn and, if indeed, 3 litres of fluid was introduced into the plaintiff system in the comparatively short time frame being considered, it is not surprising that her GCS dropped from 14 to 8 and, ultimately, to 3 on admission to the Intensive Care Unit at 0055 hours at Canberra Hospital”. Whilst the underlying facts of this submission are correct, I do not accept the conclusion reached. It was not the volume of the I/V solution that was the problem, because much of it was subsequently excreted as urine. Rather it was the fact that it contained dextrose and a reduced saline solution from the normal saline solution as started by Dr Fenn which exacerbated the reduction of the blood sodium levels and increased the transference of fluid into the tissues, in this case the brain.

65 This was considered by Dr Raftos as being inappropriate treatment in any emergency situation regardless of what Ms Clothier was suffering from. The hospital cannot be blamed for not diagnosing hyponatremia until they had the blood results, which wasn’t until about 18.30pm. However it seems that their treatment of her up till then was negligent in the nature of the I/V solution administered. As to what Ms Clothier’s situation might have been if the hopsital had continued to treat her with the normal I/V solution started by Dr Fenn, there is no evidence.

66 The plaintiff submits that “it is therefore the case that from admission to Pambula Hospital to arrival at the Canberra Hospital the plaintiff’s GCS had dropped from 14 to 3, at which stage, it must be inferred that she was critically ill. The treating neurologist, Dr Danta at Canberra Hospital in a report to Dr Chris Fenn dated 7 February 2006 noted “The hyponatremia was rather rapidly corrected”. The only inference available from this information is that with the incorrect diagnosis and treatment the plaintiff’s condition deteriorated to a critical stage whereas if it had been diagnosed when it should have it could have been rapidly treated with inferentially little physical consequences (including those she suffered for months later such as numbness and tingling in the limbs and also muscle and joint pains) and hence a significantly diminished potential for the development of the psychiatric sequelae which occurred.” [emphasis added]

67 In the absence of expert evidence I am not prepared to make the inferences emphasised in the above paragraph. It is my view that I am not appropriately qualified to draw what is essentially an inference as to a medical outcome that is beyond any general understanding of human physiology a judge might have. This was a matter for evidence not for inference. Indeed the only evidence on the issue is that Ms Clothier would have required hospitalisation in any event.

68 In that regard the Canberra Hospital notes also record that:- on 8 Jan at 09:30 - noted to be drowsy after sedation. 2110 - she was a little drowsy with a well draining indwelling catheter; 9 Jan 0450 - some confusion on waking; at 1205 - complaining of headache but no dizziness, alert and cooperative but when mobilised c/o dizziness , nil c/o headache: at 1215 - c/o mild headache, otherwise feeling well, alert, oriented tpp; at 1430 – patient mobilising and attending own care with minimal assist. Complains of headache and given Panadol and codein; At 1615 - with social worker – all is ok at the present time; at 2115 – ambulant and self caring, c/o headache, analgesics given with little effect; at 2210 - c/o occipital headache on an off all day today, no photophobia, no nausea or vomiting, good u/o, no focal neurological signs, imp(ression) – correction of hyponatremia quite rapid, ?headache; on 10 Jan at 0910 – c/o headache, analgesia given as charted with moderate effect, pt ambulant with standby assist, comfortable; at 0920 - feeling quite well, c/o occipital headache and dizziness, acc. to family – quite vague; at 0930 - pt reports feeling better, still a little unsteady on feet; at 1240 – ambulant a self caring. Headache seems to be much better; on 11 Jan at 0515 – c/o headache – given analgesia with good effect; at 1425 - very tired today c/o feeling dizzy; at 1450 - Pt c/o pain/stiffness L post. neck; at 16:45 - patient discharged with husband.

69 Ms Clothier was in hospital a full four days recovering from her illness. The suggestion that her hyponatremia was quickly treated and that she therefore had a rapid recovery is somewhat at odds with the actual record. It seems to be fairly clear from this record and other evidence that has been tendered and the oral evidence of the two experts, that Ms Clothier’s illness that began to manifest itself on the beach at Pambula, was never going to be something that would be quickly resolved without the fairly substantial involvement of a major hospital facility outside the local area. It may well be that her hypernatremia was brought under control quickly as stated, but that clearly did not result in immediate recovery.

70 Dr Danta saw Ms Clothier on 31 Jan 2006 following a request by Dr Brown of 23 January and by Dr Fenn of 24 January. In his report of 7 February 2006, Dr Danta said “there was low calcium and it was thought that all this was on the basis of water overload. The hyponatraemia was rather rapidly corrected. … When I saw her, her memory was poor and she complained of numbness and tingling in the limbs and also muscle and joint pains. I did nerve conduction studies which were normal and also an EMG of several of the muscles and all this was normal.” Dr Danta booked her in for a neuropsychological assessment with Dr Scarrabelotti and saw her again on 21 March. In his subsequent report he noted that the neuropsychological assessment provided no evidence of cerebral impairment of her higher mental functioning and the results were those of post-traumatic stress disorder. She was advised to get counselling as she was not getting better and she still had fluctuating physical and mental impairment.

71 The fact that Dr Scarrabelotti said that “she gets upset every couple of days when she thinks about what has happened” does not create a causative link between any negligent conduct on the part of the hospital and Ms Clothier’s subsequent psychiatric illness. For all I know, ruminating on what has happened may just be a symptom of her illness, rather than being causative of it. To then argue that “it is logical to infer that what the plaintiff meant by “what has happened” must include the medical treatment she received by Dr Fenn and Pambula Hospital” does not logically follow from what Dr Scarrabelotti says in his report.

72 The potential physical outcomes for the plaintiff from her illness were serious brain damage or death. Neither occurred and it has been conceded that any physical problems she may have would not get her to the threshold under the Act. There is no doubt though that since this incident she has been seriously affected by a psychiatric disorder and it is for her to prove that this disorder is causally related to some negligence on the part of either defendant.

73 That onus is not satisfied by simply submitting “there is no doubt that Pambula Hospital through its employees, servants and/or agents provided the plaintiff with negligent treatment” and that “it must, therefore, follow that the plaintiff’s feelings of helplessness and her fear that her death was imminent increased whilst she was in hospital”, because this overlooks her own evidence to the effect that she was unaware of what was happening to her after she was placed in the ambulance. Mr Clothier’s evidence as to his observations of her in hospital at different times is not in my view indicative of an awareness on her part of what was happening, rather the reverse, that she was somewhat incoherent and not fully aware of her situation. What concerns me is that a definitive diagnosis of her condition was not practically available until the blood test results were to hand. As soon as the hospital became aware of the results of those tests they stopped the I/V infusion and commenced appropriate treatment with a diuretic.

74 The infusion of the dextrose/saline solution would have made any cerebral oedema she was suffering worse and increased the severity and extent of her illness (TP 21). By the time the blood results were known, Ms Clothier’s GCS was 8 having fallen from 14 on admission and from 11 after the administration of the incorrect I/V solution. However there is no evidence before me as to what was likely to have been the case if Ms Clothier had been treated appropriately by the hospital up to that point by, for example, continuing the normal saline solution as commenced by Dr Fenn given that during this correct treatment her GCS had gone from 14/15 to 11/15.

75 Dr Scarrabelotti provided in his report a definition of Post Traumatic Stress Disorder (PTSD) from the DSM IV TR Manual. Without setting out the definition in full, the plaintiff submits that the negligent treatment provided to the plaintiff by Dr Fenn and the Pambula Hospital and the consequent significant worsening of her symptoms amounted to a life threatening experience for the plaintiff whose response involved intense fear, helplessness or horror on an increasing scale. I disagree because, from Ms Clothier’s point of view, the life threatening experience she was having were the physical symptoms she was experiencing as a result of the hyponatremia. She was unaware of any negligent treatment by the hospital.

76 The submission continues “Scarrabelotti records that the plaintiff told him “…that on several occasions on Saturday 7 January 2006 she felt she was actually about to die and was terrified that this was about to occur. In addition, she felt totally helpless and was fearful that her death was imminent”. In her oral evidence, the only instance the plaintiff gave of her feeling that she “was going to die” was while she was on the massage table at the Oval while she was being treated by Dr Fenn. It is a logical inference that the “several occasions” the plaintiff was referring to when providing that history to Scarrabelotti included the time she was in Pambula Hospital”. I do not see the last sentence as a logical inference at all and it really only tends to re-enforce the fact that the frightening trauma that caused Ms Clothier her problems was the increasing symptoms of the hyponatremia. The “several occasions” referred to by Dr Scarrabelotti are a means of expression, not evidence of what Ms Clothier felt in the hospital and I agree with Ms Sanford’s submissions that Dr Scarrabelotti did not essentially misunderstand the factual situation regarding the hospital’s treatment of Ms Clothier as is suggested by Mr Little SC.

77 Even if the submission that “the plaintiff was almost fully conscious at the time of admission at 1440 hours. She remained conscious to varying degrees for a further 4 hours until 1620 hours. It follows therefore, that, as her condition worsened over this 4 hour period, she was experiencing increasing conscious feelings of intense fear, helplessness and horror” is correct, that still does not bridge the gap in evidence as to what the likely expectation would have been had she been treated appropriately. There is no evidentiary correlation between the fact that the wrong I/V solution may have “worsened (the) extent and severity of her cerebral oedema”, which may have been a physical consequence of the hospital’s negligence, and the actual detriment she suffered of PTSD and depression.

78 Mr Erskine, the plaintiff’s treating clinical psychologist was of the opinion that the plaintiff’s major depressive disorder was a reaction to the PTSD and her other losses. Mr Erskine also says that her PTSD resulted from her unfortunate experiences in the George Bass Marathon. If this is correct and if Ms Clothier’s PTSD was not caused by any negligent act of a defendant, then the depression likewise cannot possibly be a detriment caused by any such act.

79 Ms Clothier was also seen for medico-legal purposes by a Mr Cipriani, a clinical psychologist, for the second defendant. Submissions were made by Mr Little SC as to the effect of the evidence contained in his report. In particular it was submitted at pars 52 and 53 that “the plaintiff was in fear whilst she was in Canberra Hospital. It may be inferred that this fear had its genesis when she was a patient at Pambula Hospital when her health deteriorated due to the negligent treatment she received so that the severity and duration of her critical illness worsened to the point she lapsed into unconsciousness and it became necessary to intubate her and transfer her to Canberra Hospital. It is therefore submitted that on the evidence the probability is that proper treatment on the 7 January would have seen the condition rapidly resolve having no psychiatric consequences. [emphasis added] This is so notwithstanding her apprehension before her admission to hospital, as the Cipriani report reveals (that) the plaintiff told him that she was told “the medication she had received was excessive and could have caused brain damage”, (that) she had “nightmares about being on a bed in a white room and the bed tilting”. She also said (that) no one could say “what had happened to her”. This is reinforced by the report of Dr Brown to Dr Danta dated 23 January 2006 in which he records that the plaintiff was suffering “some residual symptoms of myalgia and arthralgia with some vagueness of thought and strange dreams” and was seeking help “with an explanation of what had happened to her”. Dr McClure had a similar record of the regular nightmare of the sterile white room and tilting bed with her sliding down the bed to some dire consequence. He notes that she “would wake from this nightmare strongly believing she was about to die, feeling anxious and experiencing perspiration, shortness of breath and sometimes some palpitations”. Peter Erskine obtained a history of nightmares particularly of “masks and nurses”. The plaintiff gave evidence in Bega on 9 and 10 November 2009. Her evidence in relation to her ongoing psychiatric symptoms, in particular, her recurring dreams/nightmares of being in a hospital setting is consistent with the history she provided Dr McClure, Mr Erskine and Mr Cipriani. The plaintiff denied having dreams about the sea.”

80 In fact this last sentence is not accurate. In cross examination by Mr Windsor SC she was asked “that when Mr Cipriani asked you to outline to him in detail what you considered to be your current complaints, … in fact you reported to him always having upsetting memories of your rowing experiences and of rowing in a big sea?” To which she responded “Yeah it frightens the crap out of me, excuse my French.” The following dialogue then occurred:-

Q. You told him that you had dreams of rowing in a big sea and that this was, and I’m putting it in my language, a matter which caused you to be upset?
A. I don’t disagree with that.
Q. May I suggest to you that you also reported to him that you would often have unpleasant dreams of your rowing experiences and that such dreams continued to occur?
A. I don’t disagree with that.
Q. Did you also mention to him that the rowing events were observed by you and you watched a surf boat race, that was something too that caused you to become upset?
A. Yeah it does.

81 Of course evidence such as this does not establish the contrary proposition that is contended namely, that because Ms Clothier has bad dreams about the surfboat race, then the surfboat race must be the cause of her PTSD. Whilst there is no evidence on the topic, I would not think it unreasonable for a person in the situation of Ms Clothier who suffered hyponatremia at the end of such a race, that the whole days events may become the source of frightening dreams and the like, although one of the criteria for PTSD is that “the traumatic event is re-experienced by recurrent and intrusive distressing recollections”. In her case, the traumatic event is the situation she was experiencing at the oval.

82 The inference sought to be drawn and the submission as to the probable consequence if the plaintiff had been properly treated, referred to in bold type in paragraph 79 above, cannot in my view be validly arrived at from the evidence. This submission conflates post event symptoms and experiences with what it is inferred would have been her experiences after her admission to Pambula Hospital. It is not logical to argue that because Ms Clothier had nightmares about “white rooms” or “masks and nurses” that therefore those dreams are evidence of or were caused by a negligent act of the defendant hospital when the fact is that she would have required intensive care treatment in circumstances where she was likely to experience white rooms, masks and nurses. This evidence cannot translate into evidence linking any negligent act of the hospital to the plaintiff’s damage and there is no suggestion that anything that she was told after she recovered was or was likely to be an occasion likely to cause PTSD.

83 In Tabet v Gett [2010] HCA 12, Hayne & Bell JJ said “For the purposes of the law of negligence, "damage" refers to some difference to the plaintiff. The difference must be detrimental. What must be demonstrated (in the sense that the tribunal of fact must be persuaded that it is more probable than not) is that a difference has been brought about and that the defendant's negligence was a cause of that difference. The comparison invoked by reference to "difference" is between the relevant state of affairs as they existed after the negligent act or omission, and the state of affairs that would have existed had the negligent act or omission not occurred … the language of loss of chance should not be permitted to obscure the need to identify whether a plaintiff has proved that the defendant's negligence was, more probably than not, a cause of damage (in the sense of detrimental difference). The language of possibilities (language that underlies the notion of loss of chance) should not be permitted to obscure the need to consider whether the possible adverse outcome has in fact come home, or will more probably than not do so.”

84 In Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48, the court said that s5D(1)of the Civil Liability Act divides the determination of whether negligence caused particular harm into two elements: factual causation and scope of liability…. Next it is necessary to observe that the first of the two elements identified in s5D(1) (factual causation) is determined by the "but for" test: but for the negligent act or omission, would the harm have occurred?”

85 Applying this test to the present case, I cannot see any evidence that but for the administration of the wrong I/V solution, Ms Clothier would have suffered from the mental harm she did. Had Ms Clothier suffered some form of permanent brain injury as a result of the oedema and it could be established that the oedema’s severity and extent was caused by the wrong I/V solution being administered there would be a clear causal relationship between a negligent act on the part of the hospital and the detriment suffered by Ms Clothier. In the present case Ms Clothier suffered from a psychiatric illness where the causal connexion between any negligence and the detriment suffered is not as clear cut as it may have been in the case of physical injury. The court has to be satisfied on the balance of probabilities that the plaintiff has proved such a causal connection.

An exceptional case

86 Is this an exceptional case? Section 5D(2) provides that “in an exceptional case, in determining in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.

87 Subsection 3 provides that if it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent: (a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and (b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.

88 Subsection 4 provides that for the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.

89 In the Adeel’s Palace Case, the court said at par 54 that the section “makes provision for what it describes as "an exceptional case". But the Act does not expressly give content to the phrase "an exceptional case". All that is plain is that it is a case where negligence cannot be established as a necessary condition of the harm; the "but for" test of causation is not met. In such a case the court is commanded "to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party". … Whether, or when s5D(2) is engaged must depend, then, upon whether and to what extent "established principles" countenance departure from the "but for" test of causation”.

90 Later at par 57 the court said that “It may be that s5D(2) was enacted to deal with cases exemplified by the House of Lords decision in Fairchild v Glenhaven Funeral Services Ltd where plaintiffs suffering from mesothelioma had been exposed to asbestos in successive employments … but that need not be decided now”.

91 Ms Sanford referred to a recent Supreme Court decision of Jovanovski v Billbergia Pty Ltd [2010] NSWSC 211 where Davies J said that such “exceptional” cases: "appear to concern cases where, because of the inadequacy of the state of scientific knowledge, a Plaintiff is unable to attribute the harm suffered to a Defendant's failure to exercise reasonable care but where it was nonetheless appropriate that the Defendant be held liable because the Defendant’s failure to exercise reasonable care increased the risk of that harm eventuating". I agree with her submission that Ms Clothier’s case is not one that seems to be contemplated by the section. In my view the circumstances that compel against a finding of factual causation in the present case are not attributable to any 'evidentiary gap' caused by a lack of such knowledge or the like, but rather an evidentiary gap caused by the appropriate evidence not being put before the court.

92 The case may have become an ‘exceptional case’, had there been more evidence to point to a reasonable connection between the harm suffered and the negligence in question, but that has not occurred. It has been held that in Australia, a material increase in risk is not to be equated with material contribution to the injury and that a plaintiff must establish that it is probable that the risk created by the defendant came home. (Gett v Tabet (2009) NSWCA 76 at par 254 on the question of the asserted shifting evidential onus when the tortfeasor had created a risk of the kind of harm that in fact occurred.)

93 I should emphasise this is not a case that depends on the credibility of any witness. The oral evidence of Ms Clothier, her husband Mr Clothier, Dr Fenn and Drs Raftos and Dalton were given in a manner that does not call for any comment. I accept that the lay witnesses were doing their best to tell the truth as they remember about what was clearly a frightening and life threatening experience but one that fortunately did not have such a result.

94 Even given the lesser standard of proof of the balance of probabilities and the flexibility of the “but for” test, in my view the causal connection between Ms Clothier’s detriment and the hospital’s negligent act has not been established either by direct evidence or by any evidence from which a reasonable inference could be drawn . It was the plaintiff’s task to prove that issue. The plaintiff has failed and there will therefore be a verdict for the second defendant.

95 I order the plaintiff to pay both defendant’s costs.

96 Application for indemnity costs by first defendant refused.

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