D Lane v Northern NSW Local Health District; E Lane v Northern NSW Local Health District

[2013] NSWDC 12

District Court

New South Wales

Medium Neutral Citation:	D Lane v Northern NSW Local Health District; E Lane v Northern NSW Local Health District [2013] NSWDC 12
Hearing dates:	11, 14, 15, 16, 17, 18 May, 19, 20, 21, 22 June 2012
Decision date:	15 February 2013
Jurisdiction:	Civil
Before:	Williams DCJ
Decision:	Verdict for the defendant. Plaintiffs to pay defendant's costs.
Catchwords:	Professional negligence - medical negligence - psychiatric injury caused by death of parent - peer professional conduct - Civil Liability Act - end of life considerations.
Legislation Cited:	Civil Liability Act ss5O, 30, 31, 32.
Cases Cited:	Aon Risk Services v.ANU [2009] HCA 27 Wyong Shire Council v Shirt [1980] HCA 12 Northbridge v Central Sydney Area Health Service [2000] NSWSC 1241 Messiha v South East Health [2004] NSWSC 1061 Airedale NHS Trust v Bland [1993] AC 789 Rogers v Whitaker [1992] 175 CLR 479
Texts Cited:	Gould Medical Dictionary 4th Ed
Category:	Principal judgment
Parties:	Deirdre Mary LANE Elizabeth Helen LANE
Representation:	Counsel: P:- Self represented D:- Mr Richard J A Sergi Solicitors: Self represented Curwoods Legal Services Pty Ltd
File Number(s):	66/10 & 67/10
Publication restriction:	Nil

Judgment

1. Where do family relationships go so wrong as to be the cause of so much damage and cost to themselves and to the wider community? This is a case study of such a problem and a problem that is becoming increasingly prevalent in our legal system, involving the commencement and continuation of litigation that should really not have been allowed to go on as long as it has. This judgment, in the matters of D Lane & E Lane v. The Northern NSW Local Health District, formerly known as the North Coast Area Health Service will, I have no doubt, not set at rest the various reasons that have led to the actions being instigated in the first place.

1. There are two separate actions in negligence before me. The first plaintiff is Deirdre Mary Lane and the second is Elizabeth Helen Lane. By consent the maters have been heard together. Both actions have been pleaded in exactly the same way. At the time of the hearing of this matter both plaintiff's were self-represented. Both gave evidence.

1. Without intending any disrespect, during the course of this judgment I will refer to the first plaintiff as Deirdre and to the second plaintiff as Elizabeth. These proceedings are proceedings in negligence against the defendant claiming psychiatric injury as a result of their mother's death which they allege was caused by her negligent treatment whilst a patient in the Casino District Memorial Hospital (CDMH) and the Lismore Base Hospital (LBH).

1. Other persons who either gave evidence or might be mentioned during the course of this judgment are:- Dr Laird who was a visiting medical officer at the Lismore Base Hospital gave evidence; Dr Burrell who was a treating doctor at the Lismore Base Hospital gave evidence; Dr Coupe who was the medical registrar at Lismore Base Hospital gave evidence; Dr Seneviratne, a treating doctor at the Lismore Base Hospital gave evidence; Ms Kostal a speech pathologist at Lismore Base Hospital gave evidence; Ms Wiebke Lucks a speech pathologist at Casino Hospital gave evidence; Ms Jill Rhodes a social worker at the Lismore Base Hospital gave evidence; Dr Jurian Beek, the family general practitioner from Casino gave evidence; Mr Leo Lane, the plaintiff's father, who I will refer to as Mr Lane gave evidence; Mrs Helen Lane, the plaintiff's deceased mother who I will refer to as Mrs Lane or Helen; Dr Knox, a general practitioner who treated Mrs Lane; Dr Boyce a specialist treating neurologist; Dr Fairfull-Smith, a specialist treating geriatrician; Robin Gordon, a neuropsychologist; the Aged Care Assessment Team (ACAT); Dr Pearson, the medico legal psychiatrist for the plaintiff's and Dr Petroff, a medico legal psychiatrist who saw both plaintiff's for the defendant gave evidence; Professor Ehrlich, a medico legal expert for the plaintiffs gave evidence; Dr Obeid a geriatrician medico legal expert for the defendant gave evidence; and Dr Raftos, an emergency medicine specialist for the defendant gave evidence. Additionally both Mrs Lane, Deirdre and Elizabeth consulted a number other medical practitioners and health care professionals at different times and they will be referred to as and when they appear.

1. This unfortunate case has its genesis in an event that occurred to Mrs Lane on the 10 March 2007 after which she was taken by ambulance to Casino Hospital and then transferred to Lismore Base Hospital for further treatment where she remained for some 12 days. She was then returned to Casino Hospital where she died on 24 March 2007.

1. The plaintiff's claim was filed 1 day before the limitation period expired. The statements of claim had been drafted by their then solicitors, who have since ceased to act. The matter has had a somewhat chequered history having been set down for trial on a number of occasions and then adjourned. The proceedings were commenced in the Newcastle registry of the District Court then transferred to Lismore. The proceedings were listed for trial at the sittings commencing on the 24 October 2011 but the plaintiffs were not ready to proceed and it was re-listed for trial at the next sittings on the 20 February 2012. The matters were again not ready to proceed at those sittings and were further adjourned to the sittings on 7 May 2012 before me.

1. Deirdre and Elizabeth made an application to further adjourn the matter on the 7 May, as they were still not ready. Having regard to the listing history to date, the High Courts decision in Aon Risk Services v. ANU and because I felt that no matter how much time the plaintiffs had to prepare the matter there would always be some reason to delay the proceedings, particularly having regard to the way in which the claim was framed, I refused the application and directed that the matter proceed. It was also in everybody's interest that their recollections of events not be delayed any further given the relevant events occurred five years before.

1. The proceedings commenced on Friday 11 May at the Lismore District Court by the calling of Deirdre and Elizabeth's father Mr Leo Lane. His evidence took all day. On Monday 14 May Deirdre gave evidence and was cross-examined over that day and the next. On Wednesday 16 May Dr Seneviratne was called and Dr Petroff gave evidence via a telephone link. On Thursday 17 May, Dr Laird gave evidence as did Ms Kostal. On Friday 18 May, Ms Lucks gave evidence as did Dr Burrell and Ms Rhodes. The matter was to proceed the following week in Lismore but for various reasons it could not and it was consequently adjourned to the 19 June in Sydney. On that day Elizabeth gave evidence and was cross-examined. On Wednesday 20, Dr Pearson gave evidence via a telephone link up and Professor Ehrlich gave oral evidence. On Thursday 21 June, Dr Beek gave evidence by telephone link up and Dr Coupe gave oral evidence and on Friday 22 June, Dr Obeid and Dr Raftos gave evidence. The matter was adjourned to allow the plaintiffs to submit for tender additional documents and for written submissions. Additional documents were received from both plaintiffs. Some were rejected and some admitted. The defendant was to provide written submissions first, then the plaintiffs, with the opportunity of a reply by the defendant. The time-table set on 22 June inevitably came undone and consequently it was not until 10 December 2012 that all submissions were completed.

1. In all, the plaintiffs submissions were 144 pages long, the defendants some 53 pages. A flavour of the plaintiffs submissions can be obtained from their "Introduction" par 10 where, amongst other things they suggest the medical staff "allowed, in reality forced,(Mrs Lane) to die". At par 32 it is alleged that the defendant was recklessly indifferent to Mrs Lane's life "having the intent to cause her death. Under the Crimes Act 1900 18(1)(a), this is murder." At TP 90 on 17 May, the accusation was made to Dr Laird while giving evidence that "He killed my mother."

1. I should say at the very outset that I totally and un-reservedly reject each and every one of those propositions. Whilst the outburst on 17 May is understandable given the obvious emotional state of the plaintiffs at the time of the cross examination of Dr Laird, the statements contained within their introduction are without any merit or any evidence and would not have been made had they been legally represented.

1. I propose to deal with this matter by examining Mrs Lane's medical history chronologically in order to give a proper understanding of her pre-morbid health leading up to the event that placed her firstly in Casino and then Lismore Hospital and finally back at Casino.

1. There is no doubt and its not disputed, that the hospitals had a duty of care towards Mrs Lane and toward any one who may have been affected by their treatment of Mrs Lane while she was in their care. Whilst the statement of claim does not link the alleged negligence of the hospitals to any damage sustained by the plaintiff's, there is no lack of understanding on the part of the defendant as to what the plaintiffs' claim is. They each say that they have sustained psychiatric injury occasioned by the hospitals negligent treatment of their mother causing, among other things, a loss of earning capacity and a diminution of their amenity and enjoyment of life.

1. I propose first to deal with the issue of liability and then move on to the question of damages. The question of damages is as complicated as is the background to the issue in regard to liability. Deirdre and Elizabeth are but two of seven children of Mr and Mrs Lane. It is quite clear on the material before me, that prior to and subsequent to Mrs Lane's death, there was substantial friction within the family in regard to Mrs Lane's pre-morbid care and in regard to her treatment in hospital before her death.

1. A large amount of material has been tendered by the plaintiffs in this case much of which, I regret to say, is quite irrelevant to the issue that confronts the court. The plaintiffs made submissions to the commission of enquiry conducted by Peter Garling SC (now Justice Garling of the Supreme Court of NSW). In the course of those submissions they expressed their concerns at the treatment that their mother had received whilst a patient at the two hospitals in question. They also approached the State Coroners office in regard to the death certificate that had been issued in regard to their mother and have tendered correspondence in regard to that application, which resulted in a somewhat different death certificate being issued by the relevant medical practitioner. In fact Deirdre's evidence in chief before me was given by way of reading the submission she made to the Commission of Enquiry and that document has been marked for identification in these proceedings as MFI 'A'. Substantial parts of that document were objected to and were ruled inadmissible.

1. Whilst its fair to say that Deirdre and Elizabeth have presented a united front during the course of this lengthy trial, such was not always the case in regard to Mrs Lane's care prior to her death.

1. The particulars of negligence as pleaded are set out below. I will address each particular specifically at the end of the judgement but will endeavour to cover these matters generally during the course of the examination of the medical and hospital records and the evidence in the trial.

1. Particulars of negligence:-

(1) Failing to consider or properly consider and implement treatment for Helen in accordance with New South Wales Health End of Life Care and Decision Making Guidelines as revised in June, 2006.

(2) Failing to investigate or investigate and treat Helen's condition of pneumonia or similar condition by the administration of antibiotics or other appropriate drug.

(3) Failing to ambulate Helen as a consequence of a decision to bedfast her such that this caused a deterioration in Helen's condition so as to contribute to her death.

(4) Failing to provide any or any proper nutrition to Helen so as to prevent the development of anorexia and starvation which contributed to her death.

(5) Failing to acknowledge Helen's request for nutrition and treatment so as to contribute to her death.

(6) Failing to investigate or properly investigate Helen's pre-hospital seizure.

(7) Failing to prepare or properly prepare a management plan for Helen.

(8) Incorrectly diagnosing Helen as having suffered hypoxic brain injury.

(9) Failing to provide appropriate treatment on the assumed basis that Helen had a poor quality of life pre-morbidly when this was not the case.

(10) Failing to obtain accurate pre-hospital admission medical treatment and pre-existing conditions from Helen's treating doctors by either contacting such doctors and by requesting their records and obtaining such information from Helen's primary care giver, Deirdre Lane.

(11) Administering or continuing to administer to Helen morphine when it was apparent that Helen was having an adverse reaction to the drug including the development of a chest infection with subsequent development of pneumonia.

(12) Administering and/or continuing to administer to Helen morphine when such drug impeded Helen's ability to communicate her wishes in respect to treatment.

(13) Administering and/or continuing to administer morphine to Helen when such drug was having an adverse effect upon Helen and her wellbeing.

(14) Failing to obtain or properly obtain specialist neurological or geriatric opinion as to Helen's condition so as to properly prepare an appropriate management plan for Helen.

(15) Failing to continue to administer to Helen antibiotics when she was in need of such medications as she was developing an infection.

MRS LANE'S PRE-MORBID HEALTH HISTORY

1. Amongst the documents tendered by the defendant are the clinical notes from Dr Beek's practice over many years, he being Mrs Lane's general practitioner and the family's general practitioner. Dr Beek gave evidence.

1. It is also perhaps apposite to note at this point the concession made by Deidre Lane on the last day of the hearing of this matter at TP 117. She said to Dr Raftos:- Now Doctor, Elizabeth and I agree that Mrs Lane may have had a form of dementia and that dementia tends to progress and is not curable. We accept that Mrs Lane had disabilities but that she still had reasonable mobility albeit with some support. We agree that a neurological event occurred on 10/03/07, a seizure, of whatever unknown cause, and we know there was no specific terminal diagnosis.

1. The earliest relevant medical record is a report of 31January 1994 from a Dr Prince, an ear nose and throat surgeon, in regard to Mrs Lane which indicates she presented with decreasing hearing in the last 3 to 4 years and although suffering from a sensorineural hearing loss did not at that stage want a hearing aid. I refer to this document because Mrs Lane's ability to hear has been a cause of concern to the plaintiffs, particularly in regard to the way she was treated whilst in hospital. It's probably a fair summation to say that Mrs Lane's hearing did not improve over the years. She had also been treated by way of operation for varicose veins in 1999.

1. In 2001 Mrs Lane had a hysterectomy that had ongoing problems.

1. On the 13 September 2002 she presented to her GP with what appeared to be a severe cold but the doctor has noted "has strong alternate medical views and came with daughter".

1. On 8 October 2002 the doctor noted amongst other things that Mrs Lane was "generally anxious".

1. On 12 August 2003, Deidre applied for a Carer's Pension in respect of her mother. This form (ex12) required the ticking of boxes to indicate the status of the person concerned who required care. That form indicates that, at least from Deidre's point of view, her mother was even then considerably in need of help.

1. On 18 August 2003 the doctor noted "multiple emotional home problems - presents with daughter who does most of the talking on behalf of mother - draining day at home - lots of disputes - ? sibling rivalry".

1. On 22 January 2004 (DTB2 P349) Dr Brendan O'Sullivan, a gynaecologist, reported to Dr Beek that:- Physically Helen is now frail with marked abdominal distension and faecal loading associated with obstipation and constipation. At the time of her visit she had a level of faecal impaction associated recurrence of the low recto seal. My feeling is that she is too much under the direction of her daughter Deirdre who manipulates situation and management. I recommended a combination of Epsom salts, lactulose and suppositories but doubt that she will be unable to implement any of this while Deirdre is driving things. I can only sympathise with the other family members at the hands of this overbearing woman.

1. I note that Dr O'Sullivan had been treating Mrs Lane at least since 1994 so that his observations, particularly as to Mrs Lane's frailty and the inter-action between Mrs lane and Deidre, are not those of a one off visit. It is also an observation supported in documents pertaining to the treatment of Elizabeth referred to later in this judgement.

1. It is clear from the general medical records that Mrs Lane was, by this stage of her life, not enjoying the best physical health, apparently a consequence of her earlier hysterectomy.

1. On 22 November 2004 there is a Casino Medical Centre note that there was a discussion with Leo Lane. Leo voices concerns Helens ongoing health concerns. Leo states he feels she is showing some early signs of dementia. He states that Dr Beek had attended a referral for Helen to be reviewed by Dr Fairfull-Smith but this did not go ahead as his daughter Deirdre felt it not necessary.

1. On 27 May 2005 there is a letter from Dr Janet Knox, a GP at Byron Bay, requesting Dr Boyce, a neurologist, to provide an expert opinion. In the letter Dr Knox says inter alia :- Helen recently presented to this practice with her daughter Deirdre, with a progressive history of decreasing mobility, rigidity, and 'anxiety attacks ' Deirdre describes the attacks as being triggered by a stressful event, her limbs become flexed and rigid, she has difficulty breathing, stares into space and has been incoherent in speech. ... She has no history or family history of neurological problems. Her past history includes hysterectomy 4 years ago for ? prolapse O/E shuffling gait, blank face, positive glabellar tap, cogwheel rigidity, hyperreflexia. Abdo - distended and tender. I am concerned that this lady has Parkinson's disease and would appreciate your opinion regarding diagnosis and ongoing management.

1. Dr Boyce wrote back to Dr Knox on 1 June 2005 as follows:- "Mrs Lane is 74 years of age. She has had a lot of trouble with her abdomen and trouble with a hysterectomy. Her major problem at the moment is mobility. She also has severe attacks of anxiety. Speaking to the lady it was clear that she has some degree of dementia. She was disorientated in time and place. She wasn't able to add 16 and 13. She couldn't tell me the name of the town she was in. She had a dyspraxia of right and left and finger agnosia. I agree with your findings ...I have had a longer talk with her daughter... I have suggested that she contact her lawyer about her mother's testamentory capacity".

1. On 15 June 2005 Dr Boyce referred Mrs Lane to Dr Fairfull-Smith in the following terms:- "The lady wasn't able to give a coherent history. Her major problem was mobility and attacks of anxiety. Clearly the lady has a Parkinsonian type gait and has rigidity to facilitation bilaterally. She has staring affect. She is totally disorientated in time and place. She wasn't able to calculate. I found a dyspraxia of right/left function and finger agnosia. I couldn't get what I felt was a coherent mini mental status. ...I felt that she had a Parkinsonian dementia i.e. a concurrent onset of a dementing process and Parkinsonism within about twelve months. Her CT brain shows widened subarachnoid spaces and increased size of the third and lateral ventricles particularly with decrease in size of the temporal lobes.

1. Dr Fairfull-Smith is the director of rehabilitation and geriatric services for St Vincent's Hospital, Lismore. He provided a report to Dr Boyce on 6 October 2005. Amongst other things in that report Dr Fairfull-Smith says:- "Thank you for referring Helen who was seen on 25 August 2005 accompanied by her husband and daughter Deirdre. The most likely diagnosis is corticoid basal degeneration in view of the severity of aphasia, the difficulties initiating actions. This is undoubtedly a dementing process".

1. Under the heading "examination" the doctor noted that:- "She needed hearing amplification above her hearing aids to get her to understand adequately. In spite of this it became apparent that she has a significant and severe aphasia being unable to name simple common objects. She could sometimes follow a single command but not a two stage one. She has apraxia being unable to demonstrate or even use a pair of scissors or sign her name. She had difficulty comprehending no matter how information was presented. In naming animals she could only name one and had great difficulty understanding the concept. Getting her to do drawings she was very concrete and literal with a 3D box, writing draw before being shown that she had to copy the box and then just drew a square. With the clock face she placed 12 several times. Also she wrote clock and mis-spelt it. She was very slow in doing all these tasks. A brief physical examination did not show any postural hypertension, primitive reflexes mildly increased tone bilaterally. I will refer her to the dementia outreach service to see if the family wish any further information on this unfortunate condition. I note that doctor was well aware of Mrs Lane's hearing difficulties.

1. On 19 October 2005 she was seen by a neuro-psychologist Robyn Gordon. In a report to Dr Knox and Dr Fairfull-Smith of 26 October 2005 she said:- "I attempted an assessment of Helen on 19 October 2005. She was accompanied by her daughter Deirdre who sat in on the assessment. I also had the opportunity to speak briefly with her husband".

1. Under a heading "results" she wrote:- " 1. Helen appears to have a severe aphasic disorder with both expressive and receptive difficulties. 2. Helen demonstrated apraxia both in her attempts at obeying instructions and her attempts at basic design. 3. She appeared to have difficulty initiating actions or responses, consistent with anecdotal evidence. 4. Helen's memory was impaired at a very basic level. 5. Attention abilities were grossly impaired. 6. She seemed to be readily confused. 7. Occasional preservative responses were noted in her speech".

1. Under the heading "impression" she records:- "Unfortunately it does appear that Helen is suffering from a quite severe dementia; diagnosis of corticoid basal degeneration would appear to be supported in this case. While it is likely that Helen's high anxiety would be a contributing factor, it is not felt to be the prime cause of her current presentation. Helen requires a high level of care and supervision in her daily living. Helen would be unable to make any informed, considered decisions. Helen is also unable to mange her finances. Helen is probably best managed by use of set routines and prompting".

1. Whilst there is some debate as to who requested the ACAT to become involved with Mrs Lane's care, Deidre acknowledged at TD3 p12 that both she and her father were anxious for the ACAT team to get involved in her mother's care because of the burden Helen's illness was placing on her and her father.

1. Mrs Lane was seen by the St Vincent's Hospital ACAT over different periods of time but more relevantly from the 25 August 2005. An ACAT clinical note of that date indicates that she is deaf and has been very deaf for 8-10 years. It was noted that she feeds herself and shuffles and has poor memory and a CT scan showed cerebral atrophy. It was also noted that she was easily distracted.

1. An ACAT clinical note of 7 October 2005 said:- Elizabeth Lane presented at the office with allegations of elder abuse by her sister Deirdre to her mother Helen. Elizabeth alleges that Helen is anxious and frightened at times when Deirdre is around - thinks she wasn't receiving ideal medical and nutritional care.

1. On 12 April 2006 her GP notes:- "Review. Long talk. Problems 1. long standing anxiety 2. challenging domestic situation -very assertive daughters-conflicting domestic aims between two daughters 3. critical son. P/h of medical trauma ...indecipherable. 5. belief in alternative therapies 6. denial of dementing process by the family siblings 7. will progress to need n/h care note p/h of chronic anxiety. domestic situation problems difficult to change. suggest use of alpraxalone. note no weight loss".

1. On the 28 April 2006 there is, what I presume to be, an ACAT file note in respect of Mrs Lane which says:- "Phone call from Elizabeth Lane. Elizabeth again outlined the differences of opinion with Deirdre about the care provided to her mother. I informed Elizabeth that her father Leo, who has no cognitive impairment, is involved with Helen's case is able to monitor Helen's case".

1. An ACAT note of the 9 May 2006 says:- the family conflict continues to rage.

1. In August 2006 there is a GP notation of "↑anxiety".

1. A further note on 13 July 2006 says there was a home visit to Leo and Deirdre. "Leo notes that improvement in his wife's condition coincided with service from SCCC. Reported family conflict has quietened down so that the household is less fraught".

1. However on 18 July 2006 there was phone call from Elizabeth Lane who was again concerned that her mother had been denied a hearing aid by her father despite Elizabeth's opinion she would benefit from it. She was advised to discuss the situation with her mothers GP.

1. On 14 September 2006 there was a home visit to Leo and Deirdre and Helen was seen but only briefly. It was explained to them the levels of residential community and respite care and it was reiterated that Helen was a high care patient.

1. On 25 October 2006 there was a phone call from Dr Beek in Casino who was receiving pressure from both Elizabeth and Deirdre to contact ACAT. The ACAT already had a referral and they had been in touch with Leo to confirm the referral. It was noted that Elizabeth is now alleging that Deirdre is an alcoholic and that she would like to make a guardianship application.

1. On 13 November 2006 there was a home visit by registered nurse who met with Leo, Deirdre and Helen. She noted that Helen required considerable care now, was quite frail and had difficulty mobilising and appeared to be in considerable pain.

1. On 15 November 2006 there was an ACAT home visit at Leo's request and a psychologist, Mr Bradley Ward, met with Leo and Elizabeth. The note says:- "Elizabeth had lots of questions re the best way to care for Helen. I named out loud that I would not be drawn into taking sides re hers or Deirdre's views on Helen's care. My answers were only in generalities, as I hardly knew Helen. I concluded with reinforcing ultimate decisions re Helen's care sit with Leo, not with the daughters. Leo is aware of this.

1. The ACAT assessment conducted on the 23 November 2006 indicated that:- Mrs Lane required full assistance for showering dressing and grooming. She was mobile but very unsteady. She needed assistance on standing. She was a high falls risk. There were no continence problems but required assistance with toilet and assistance with post toileting hygiene. She had expressive and receptive aphasia which combined with poor hearing and slow mentation made communication difficult at times. Patience and understanding needed. Helen responds well to reassurance. She is an anxious lady and this is an important consideration in her care. At Plaintiffs submissions par 157, (PS par 157) the plaintiffs suggest that this document in effect should have been part of anyone obtaining an accurate history of Mrs Lane's premorbid condition.

1. "Aphasia" is the "loss or impairment of the reception or use of language caused by a lesion of the cerebrum." (Gould Medical Dictionary 4th Ed). I cannot see that this document would have made any difference or would have been relevant to Mrs Lane's treatment after the incident of 10 March 2007. All the relevant practitioners well knew of Mrs Lane's communication problems. I cannot see any evidence of her being treated other than with patience and where possible, given her condition, reassurance. All these issues were noted on her admission in one form or another.

1. On 29 November 2006 there is report from the Richmond Valley ACAT which says:- I met with Helen, her husband Leo and daughter Deirdre. As you are aware, Deirdre is providing considerable care for her mother. There is minimal help currently, with St Michaels providing some personal care one day per week. Helen also has infrequent social outings with St Michaels. I have approved Helen for an extended aged care at home package as well as high level respite and permanent care.

1. On 31 Jan 2007 Mrs Lane was prescribed Amoxycillin and anti-biotic, apparently because of concerns for her recurring UTI. On 23 Feb 2007 Deidre noted that her mother was more unsteady and seemed more frail and had deteriorated very quickly.

1. On 8 February 2007 there was a home visit to Leo Lane from the Dementia Outreach Service of St Vincent's Hospital because the "SCCC" had pulled service out apparently due to occupational health and safety issues. The note says "Eldest son John visited and drew up family care plan that Deidre and Elizabeth have agreed to - they are currently working together much better. ... Leo is much more relaxed when family tension is lowered". The note concludes "Saw Helen - severely demented".

1. On 27 Feb 2007 Deidre told the surgery that her mother had been deemed "High risk" by the ACAT.

1. On 1 March 2007 Mrs Lane was prescribed Augmentin Duo Forte and on 9 March 2007 further pathology tests were ordered by Dr Beek. The results came back after Mrs Lane had collapsed on 10 March 2007 but were negative, confirming later testing at Lismore Hospital.

1. On 10 March 2007 Mrs Lane experienced some type of cerebral incident and was taken by ambulance to Casino Hospital.

DISCUSSION OF THE SITUATION UP TO THAT TIME

1. As may be appreciated from the above Mrs Lane was, by February 2007, suffering from a number of uncomfortable and serious physical problems, considering her age, such as recurring UTIs , gynaecological problems, bowel problems as well as quite severe cognitive difficulties that, I am satisfied on balance of probabilities, were age related dementia, probably with Parkinsonian features.

1. It is also quite clear that Deidre was reluctant to follow medical advice in regard to her mother and that both Deidre and Elizabeth were at times antagonistic toward each other over the care of Mrs Lane. From the GP notes it is also quite apparent that the family conflicts were not helping Mrs Lane in her degenerating cognitive state.

1. Mr Sergi submitted that during their respective cross-examinations, each of the Plaintiffs attempted to paint Mrs. Lane's pre-morbid health as being far more robust than it was in reality. He said that each obfuscated when specific examples of Mrs. Lane's limitations was put to them and that it was plain that the Plaintiffs, having appreciated the importance of their mother's pre-morbid history to the prospects of their claim succeeding, attempted to re-invent their mother's history. He further submitted that what was of real importance was the overwhelming evidence as to the true position regarding Mrs. Lane's pre-morbid health. He pointed out that each of the Plaintiffs gave histories to Dr. Pearson, their psychiatrist, regarding their mother's pre-morbid condition that were quite different to what their evidence was at trial.

1. He gave the example of Deirdre reporting to Dr. Pearson that caring for her mother was a demanding and difficult job and that she realised at the end of 2005 that she needed to care for her mother. In fact Deirdre had applied for a Carer's Pension in relation to the care she provided to her mother as long ago as August 2003. She completed a pro-forma application (ex12) in which it is recorded that Mrs. Lane needed assistance with a significant number of activities of daily living. Elizabeth, gave a history to Dr. Pearson that Mrs. Lane's cognition had been in decline for several years before her death.

1. I agree with these submissions. It was quite apparent that often, when confronted with the findings as to Mrs Lane's pre-morbid health by a treating specialist, some excuse was made up as to why Mrs Lane was unable to function well on that particular day. These ranged from Mrs Lane's deafness, to her not having her glasses with her or having comprehension difficulties on the day in question. Whilst some of these reasons may have played a part in her presentation, I have no doubt that the relevant specialists were able to take into account such difficulties and adjust their opinion accordingly. These reports are un-contested and in some, it is quite apparent that the specialist was well aware of Mrs Lane's physical disabilities.

1. There is no doubt in my mind that from a time prior to 2005, Mrs Lane's health had been deteriorating not just cognitively but also physically. Indeed Deidre had returned to live at home with her parents so as to be able to help look after her mother. It is easy in hindsight to forget past difficulties and only remember the good things that were occurring. That is fairly natural. But the overwhelming evidence is that by 2005, Mrs Lane's cognitive health was in serious decline.

1. It is also quite apparent that from an early time, Deidre's view of how her mother should be treated in regard to many illnesses was at odds with the medical profession. That is particularly evidenced in the 22 Jan 2004 letter of Dr O'Sullivan to Mrs Lane's GP Dr Beek (p349 defendants bundle) wherein he noted that Mrs Lane was "now frail" and that she was "too much under the direction of her daughter, Deidre, who manipulates situations and management". The Doctor felt his recommended treatment would not be implemented "while Deidre is driving things".

1. Indeed, by May 2005, Mrs Lane's health was of such concern to Deidre that she took her mother to another doctor, Dr Janet Knox, a GP in Byron Bay who referred her to a neurologist Dr Boyce, who in turn referred her to Dr Fairfull-Smith, a geriatrician.

1. Dr Knox obtained a history from Deidre of her mothers presenting problems as being a "progressive history of decreasing mobility, rigidity and "anxiety attacks" triggered by stressful events in which her limbs become flexed and rigid, she has difficulty breathing, stares into space and has been incoherent in speech". Dr Knox found a woman with "shuffling gait, blank face, positive glabellar tap, cogwheel rigidity, hyperreflexia and with a distended and tender abdomen". She suspected Parkinson's disease. (DTB p308).

1. Dr Boyce said it was clear that she had some degree of dementia as she was disoriented in time and place, couldn't add and didn't know where she was. In a letter to Dr Fairfull-Smith he said he couldn't get a mini mental state, she had Parkinsonian gait, was totally disoriented in time and place and that he felt she had a Parkinsonian dementia. (DTB p310). Dr Fairfull-Smith found nothing to contradict what was obviously by then a fact of Mrs Lane's day to day existence.

1. Perhaps more important is the record kept by Mrs Lane's GP which is revelatory not only of her decreasing health but also the impact the family dynamic was having on Mrs Lane. I am satisfied as a certainty that Mrs Lane's quality of life just prior to the 10 March 2007 was not good and getting worse, with substantial risk of deterioration from both physical illnesses, such as UTIs, and her undoubted dementing process. It is also clear that on the balance of probabilities Mrs Lane had reached a stage of her illness that meant Mr Lane and/or Deidre could not manage her appropriately in the home on any sort of long term basis.

The event of 10 March 2007 and subsequent treatment

1. I have set out below what, in my view, is the relevant objective documentation of these events from the ambulance record, to the CMDH and LBH clinical notes in chronological order. These are the only contemporaneous written records of what occurred.

1. Both Deidre and Leo Lane gave evidence as to the circumstances of Mrs Lane's collapse on 10 March 2007. Mr Lane is now aged 82 and Deirdre is aged 56. More importantly, this event occurred over five years ago and was obviously traumatic for all concerned. Whilst attempts have been made to define with some precision what actually occurred, in my view that is both un-necessary and likely to be inaccurate. Not un-naturally, no one present made any notes of what had occurred. However the ambulance arrived quickly and the paramedics made comprehensive notes of their observations and what they were told by who was there. In my view the ambulance report is likely to provide the most accurate account of the situation that pertained on the day, as opposed to how it may now be remembered or re-constructed by the witnesses.

1. The Ambulance Report notes as follows:- seizure → post ictal. Altered level of consciousness p/t 76 year old woman "choking not breathing" O/A PT. Supine with legs flexed. Obstructed airway, laboured respiration, trismus present. Small amount of bloody mucus nostrils and mouth GCS-5. family→ vague with rlx→ ? is/ is not epileptic?? Not on meds? Has had "seizure" before. Apparently had a drink of H2O and a pill→"choked" ? then "fitted" OBS as below both eyes rolled backwards en route to hospital→ pupils equal and reacting to light but sluggish. PT. Recent UTI [urinary tract infection]. PT. Recent fall out of bed (?within last week→ not seen by LMO) incontinent of large amount of urine xl.

1. In the following records of what appears in the clinical notes of the CDMH and LBH, the reference to a page number refers to the relevant page in the tender bundle together with the date of the note and, where indicated, the time. I have chosen to move through the notes in this way as again, in my view, whilst not perfect or complete, they are likely to provide a more accurate record of Mrs Lane's treatment than the evidence of both plaintiffs who, for a number of reasons, would not be objectively regarded as being particularly reliable or accurate witnesses. I have also emboldened parts of the clinical notes that reflect instructions from the family as to Mrs Lane's treatment, because one of the complaints, by both plaintiffs, is to the effect that their wishes were neither respected nor acted upon by the hospitals.

1. Additionally the plaintiffs have in their evidence and cross examination of the many witnesses, sought to give evidence of and obtain concessions as to negligent conduct on the part of the hospitals. Such concessions have not been forthcoming by any of the treating health professionals nor from the plaintiffs father who had nothing but praise for the way the health system looked after Mrs Lane at this difficult time.

1. I have not attempted to transliterate every word in the clinical notes but those that I have regarded as relevant or to which I have been directed by the parties. The notes are handwritten by many different people, some obviously in haste and using various forms of medical shorthand. Some of the words used I cannot decipher and are acknowledged as such. I doubt they have any impact on the substance of the situation.

1. The notes have been criticised for being inaccurate and incomplete and not a true record of what occurred to Mrs Lane. I would accept that a note has not been made of everything that occurred but I would not expect that to have been the case in practice. The purpose of clinical notes in a hospital setting is to provide a record of the treatment administered to a patient and other factors that are thought relevant for those professionals involved in the patient's care. They are not and never could be a complete transcript of events nor should that be a reasonable expectation. These notes are no different to the many hundreds of such records I have seen as a judge and as a practitioner. Indeed they are in my view more fulsome than most, which is perhaps a reflection of the problems faced by the medical staff caused by the poor family situation about the appropriate treatment for Mrs Lane.

1. Mr Leo Lane, was at all times Mrs Lane's next of kin and the only person, apart from herself, who had the legal right to determine her treatment options. He was also her guardian. Whether or not Deidre was her mother's "prime carer" is not material to that situation. It might only become relevant if it could be established that Mr Lane was himself somehow incapacitated from making appropriate decisions and there is absolutely no evidence of that. Indeed Mr Lane impressed as a very intelligent and compassionate man, despite having to re-live what was undoubtedly a tragic end to the long and loving relationship he had with Helen prior to her death.

1. On 11 May 2012 Mr Lane, in the midst of lengthy cross examination by his daughter Elizabeth, said rather emotionally at TP 78 :- I just don't think this is relevant really because we're here to talk about your mother's stay in the hospital, the Base, and then at Casino and whether - I take it that you're claiming that she didn't receive correct medical assistance, and I'm saying she did, and I'm also prepared to sit here and say that the treatment she received from the Base and Casino was over - well, it wouldn't - I would say normal, but over and above what we would have expected. (emphasised) If you remember, the first night she was in that four bed ward and it was a terrible night for everyone. She came into that room that was specially set up, cleared of whatever it was used for before. She had that room with the privacy. It was adjacent to the nurses' station. We had the little balcony out on the side where we could walk out, you know, and it was just so good, and you and Deirdre were able to stay in that room of a night with you mother. We came to Casino. One of the Good Sisters volunteered or asked could she travel in the ambulance with us, which she did and settled Helen in in Casino, and there again they had the private room and you had your section adjacent. I find this upsetting, as you can understand, and everyone in the room will understand that I accepted what was done gratefully, what was done, and I accepted the result, the passing - your mother's passing. You were with me that afternoon. Sorry, your Honour. You were with me that afternoon and your brothers, siblings, were there too

Q. Do you - when

A. and I just said to her, "Look, you can go now. We're right. We'll be okay," and she just slipped away. You know, what do you want, Elizabeth?

1. At TP 91 Mr Lane said:- I think what we need - your Honour needs to establish is, and I thought we'd covered it quite comprehensively, that the care that Helen received from both the Casino Hospital, the Base Hospital thing and the Casino Hospital, was appropriate. That's a lame sort of word, but another one dedicated, caring, and which was just more than acceptable to me and, as I thought, Helen's immediate family.

1. At TP 116-117 the following dialogue took place between Mr Lane and Deidre:-

Q. What was different about mum in the hospital and mum at home?

A. Well, the difference was the seizure, wasn't it, basically. She wasn't - Deirdre, this is, I think, perhaps a little difference we have in the hospital that you tended to think, and perhaps Elizabeth did, but you to a greater extent, was that if we could get her back under the red frangipani tree that, you know, she would be back to normal; normal meaning as she was on that Friday afternoon and I knew in my heart, and I knew realistically that that just wasn't going to occur, and I didn't want the trauma, that terrible word again, of putting her through all that to get her back home because it was my decision. Like his Honour has said, you know, maybe at times, you know, I sound like the defendant in the whole exercise here but the decisions I made, I will say, were 100% mine. You know, sometimes, you know, maybe I might think, "Well, I could have done something different," but I didn't, and I made that decision and I - you know, I live with it, not always

Q. I just

A. --happily, but I live with it.

Q. I'll just keep drawing you back

A. I wish you two would do the same.

1. Questions as to professional culpability for negligent services are governed by the provisions of s5O of the Civil Liability Act 2002 (CLA) which provides as follows :-

(1) A person practising a profession ("a professional") does not incur a liability in negligence arising from the provision of a professional service if it is established that the professional acted in a manner that (at the time the service was provided) was widely accepted in Australia by peer professional opinion as competent professional practice.

(2) However, peer professional opinion cannot be relied on for the purposes of this section if the court considers that the opinion is irrational.

(3) The fact that there are differing peer professional opinions widely accepted in Australia concerning a matter does not prevent any one or more (or all) of those opinions being relied on for the purposes of this section.

(4) Peer professional opinion does not have to be universally accepted to be considered widely accepted.

THE CLINICAL NOTES

10 March 2007

1. Casino Hospital (Page 100) 10/3/07 Breathing Rhythm irregular, Depth adequate, Quality laboured, Oxygen non-rebreather 15l , Mental State Assessment semi conscious (Page 101) 10/3/07 10.45. IVC inserted, bloods collected ECG attached. Nasoph airway insitu. IDC [in-dwelling catheter] inserted. 11.30 T/F + Lismore Base Hospital. Departure from A&E to LBH time : 11.45 hrs. (Page 102) Coma Scale total 10.45 9, 11.15 10.

1. Lismore Base Hospital (Page 1), 10/3/07 Next of kin, Lane, Leo Thomas William, relationship husband, (Page 4), 10 March 2007,Referring letter from Dr Amey:- Thanks for seeing 76 yr Helen Lane, a lady who had an episode of going stiff then collapsing, family report frothing at the mouth and stopping breathing. She has dementia and is not verbally communicative, incontinent of urine and has very poor mobility and is quite deaf. She fell out of bed a few nights ago and hit the left side of her head. She's very difficult to assess .... Family advise recent UTI - has been on Abs and had a clear MSU since. Page 6, 10/3/07, 12.30 hr, Presentation History Ix & Tx of altered level of consciousness - on moving pt - she moans and groans? Pain - pt difficult to access *IDC insitu O/A . NB pt had a fall 2/7 ago - hit head (R eye swollen) Nil LOC Nil vomiting. Breathing Rhythm regular, Depth adequate, Quality easy, Oxygen non- rebreather IOL. Mental State Assessment semi - conscious.

1. (Page 8), Sedation Score, Coma Scale 12.30 - total 11, 14.45 - total 11, 16.45 - total 11, 19.23 - total 11.

1. (Page 9), Progress Notes 19.15 IV Flagyl commenced. 19.55 Flagyl ceased at relatives request, 2010 analgesics offered and refused at present.

1. (Page 10), Emergency Department Clinical Record, TRIAGE date 10/3/07 time 12:29. Doctor C Imhoff:- History of Presenting Illness gradual generalised deterioration past 6/12. 2/52 ago lower UTI / augmentin / msl past week nad, 2° profound deafness, incomprehensible speech, increasing dementia. After breakfast this am, sudden onset became stiff in chair falling out of commode / LOC, became stiff / no auditory indecipherable . (Page 11), - Associated cessation of breathing/turned blue - Involuntary passing of urine / blood from mouth - Resps restarted after 2 breaths from daughter (started CPR) - frothing at mouth - LOC - ? S-10mm - remained ↓LOC - fall out of bed 4-5/7 ago with minor injury to head / no LOC - - Needs assistance with all ADL's - Eyes open to voice - Attempts to obey commands - Incomprehensible speech (normal for her) - pupils 7mm - (?) reactive - Recognising husband - hyperalgesic/allodynia generally - Stiff ++ - Neck in extension arms/legs in flexion.

1. NB:- Pages 12,13 &14 appear to be out of order.

1. (Page 15), All limbs held in flexion - forced extension seems to elicit pain , rigidity. Neck held stiffly on extension -? photophobia - seems to have pain with any interaction. Impression - generalised tonic seizure -?infection -? Subdural. (Page 16), Impression: vascular dementia→ ? undecipherable CVA/ seizure. Discussed further with husband / relatives / Not for CPR [Cardio Pulmonary Resuscitation]. Reviewed by Dr Coupe - admit MED - NBM [nil by mouth] till speech pathology R/V - S/c morphine for agitation - remove IDC.

1. (Page 16), 10/3/07 21.45, Husband expressed wishes that the IDC stay in situ, the same patent and draining

1. (Page 13), 10/3/07 Dr Coupe:- family spoke to at length by SD Staff , myself. Given poor quality of life premorbidly and progressive dementia comfort measures vs active measures discussed with family, family happy to provide all comfort measures possible, however to avoid any aggressive measures. (Page 14), Imp: advanced dementia, premorbid poor quality of life, comfort measures - IDC out pls (family wishes) - NBM until r/v (family happy with this) - analgesic as charted, single room if possible - I/V AntiBiotic's as charted - slow IVF - notify ASAP of any further pain or comfort issues arise - admit ↓ Dr Rankin (family will decide tomorrow the possibility of transfer to either St Vincent's or Casino).

1. Discussion:-Before moving on to the next day, the plaintiffs made considerable criticism of the LBH for their failure to undertake a number of tests on 10 March to try and elicit exactly what had happened to Mrs Lane. In fact the hospital arranged a CT scan and commenced her on antibiotics in case of infection. This was stopped at the family's request and ceased when the patient's bloods came back from pathology and were clear of infection. The difficulty faced by LBH in dealing with Mrs Lane's family generally is illustrated by the instructions recorded on 10 March that on the one hand at 21.45 Mr Lane wanted the IDC to remain but at another time, the family's wishes were that it be removed. Then at 06.55 on 11 March a nursing note records that the family want the IDC left in!

1. I do not accept that any of the admitting doctors failed to obtain an adequate pre-morbid history and I do not accept that pre-morbidly Mrs Lane was substantially any different to how she was observed on admission except, of course, for the fact that she was now not alert or able to communicate and thus unable to give a logical history. It is highly improbable that even if conscious, she would have been able to give such a history.

1. The plaintiffs attempted, through Deidre, to retrospectively determine exactly what caused their mothers incident on 10 March at home. Questions were directed as to hypoxic brain damage being dependant on how long she may not have been breathing before CPR was commenced. Questions were directed to any brain trauma caused by hitting her head. It seems the purport of this line of cross examination was to argue that if the proper cause had been determined, she would have been treated differently and perhaps recovered. At page 4 and thereafter of their submissions the plaintiffs argue that the hospital staff made incorrect diagnoses of "vascular dementia" and "stroke" but then baldly assert, without any support (other than Dr Coupe agreeing that epileptic seizures were fairly common in the community), that "Mrs Lane had an epileptic seizure on 10 March" [PS par26].

1. Whatever illness of the brain Mrs Lane was suffering from, the fact is that she did not voluntarily recover to any degree despite being oxygenated continuously and despite her not apparently suffering from any supervening infection or illness. Whilst at different times she showed signs of improvement, those signs were not sustained for any length of time. In particular, she showed none of the signs of recovery that would have been expected from a short hypoxic incident, a mild epileptic seizure or a minor concussive head injury. Despite the plaintiffs' best efforts to establish the contrary, Mrs Lane's pre March 2007 health was, whilst not at an end of life stage, very poor and that inevitably affected any ability she may have had to recover from the hospitalizing incident.

1. It is stated in Plaintiffs Submissions 1 Paragraph 23 (PS1Par23) that Mrs Lane was incorrectly diagnosed with a history of vascular dementia on 10 March by the LBH. With respect that is reading more into the clinical notes than is warranted. All the note says is "Impression: vascular dementia→ ? undecipherable CVA/ seizure". That is not a diagnosis and, in the circumstances prevailing, is not an unreasonable impression to have formed according to the experts.

1. Much attention was focussed on Ms Rhodes evidence as to what she said to Elizabeth in 2009 about her mother having a "dense stroke". Ms Rhodes is a Social Worker who apart from being involved with the family situation surrounding Mrs Lane's admission to LBH, was not directly involved in her treatment. Whatever her recollection was two years after the event is not really relevant to what was happening at the time given the fact that she was not a doctor or medically trained person nor was she treating Mrs Lane.

1. Dr Coupe saw Mrs Lane more frequently than any other doctor at LBH from admission to discharge. Apart from the oral history obtained from members of the family, Dr Coupe noted that Mrs Lane's generally wasted appearance, muscle tone and muscle wasting were indicative of someone suffering from long standing dementia. Dr Raftos found nothing in the notes to suggest that the observations of Dr Coupe were incorrect and he agreed that such signs were indicative of long standing dementia. Even Prof. Ehrlich agreed in evidence that the more physically incapacitated Mrs Lane was before her CVA, the less positive was her outlook for recovery.

1. Section 5O of the CLA requires a plaintiff to prove that the defendant has acted in a way that is both not in accordance with "peer professional opinion" and is also "negligent" as that expression has been determined in Wyong Shire Council v Shirt. In the present case the only independent expert evidence of peer professional opinion is in the evidence and reports of Prof Ehrlich, Dr Obeid and Dr Raftos and to some extent, Dr Mellick (Ex 47). All the other medical evidence given in the trial comes from those actually involved and therefore would not normally be regarded as independent.

1. However it is not enough for the plaintiffs to simply establish that a particular aspect of Mrs Lane's treatment could have been handled differently. They need to establish that she should not have been treated as she was and that the treatment she in fact received was negligent. The more complex a treatment situation and the more varied the factors impinging on appropriate treatment, the more difficult it becomes to establish that a particular treatment or treatments was or were outside peer professional opinion and negligent as per s5O CLA.

1. It is also the case that in a triage system that pertains to most urgent admissions, the hospital professionals have to make a number of choices some of which may not be in the patient's immediate best interests. By that I mean the resources available are necessarily limited and have to be applied effectively and efficiently as best can be done having regard to a wide ranging set of circumstances only some of which may relate directly to the patient. We have heard in the present case, for example, that the speech pathologist at LBH had to potentially respond to all the hospital patients requiring her services and she was not on duty seven days a week and 24 hours a day. The fact that a speech pathologist or radiologist or specialist doctor is not immediately available to look at a patient is not evidence of professional neglect.

1. Where a patient is admitted unconscious, the hospital has an obligation to try and assess the reason for that fact, institute appropriate treatment and consult with the next of kin as to any treatment decision that needs to be consequentially made.

1. The plaintiffs made much reference to a document (Ex 1) entitled End of Life Care and Decision Making Guidelines (ELCDMG), a document prepared by the NSW Health Department. The plaintiffs relied on this document as somehow providing a checklist of conduct which, if the defendant did not follow somehow established evidence of negligence on its part. There is a diagrammatic representation on page 7 of the document as to the processes involved. It was put to a number of persons that no such diagram appeared anywhere in the hospital records, as if that absence was indicative of a breach of the duty of care. Clearly such a belief is misguided, as is the belief that this document is a be all and end all of the defendant's responsibilities. At PS1 Par15 it is stated that Ms Deidre Lane believed if the ELCDMG had been adhered to her mother would not have died. However the plaintiffs have failed to establish any connection between their mother's treatment and anything relevant in the ELCDMG.

1. The ELCDMG document is a guideline more geared to situations where persons enter hospital suffering from some life threatening injury or disease which results in considering the best way to help that person once it is recognised that medical treatment will not result in any recovery. Mrs Lane's situation was one that is common in the elderly, especially where there has been a pre-existing dementing process. That there may be a difference of opinion as to how such patients are treated as well as the fact that one course is taken rather than another, is not of itself evidence of negligence. The fact is that this is difficult point of time for any family. The medical process is clouded by religious and ethical issues which are usually not relevant to determining what is appropriate professional treatment in accordance with civil legal obligations.

1. Having regard to these guidelines, I am not persuaded that any conduct of the hospital fell outside them. As Mr Sergi points out in his submissions from Par 113 to Par 128, the plaintiffs have not established that any relevant part of the ELCDMG has been offended against. Indeed the document makes reference to there being no right to treatments of no or negligible benefit or which are, in the circumstances, unreasonable (cf P2 Ex 1 & P9 @ Par 6.3).

1. What is particularly apposite to this case is at 7.4 on P 13 where it is said that "use of artificial hydration and nutrition is an intervention with its own possible burdens and discomforts, for example, those related to having tubes in situ or regularly replaced. Withdrawal of artificial hydration and nutrition, like the withdrawal of other medical intervention, can be seen as a treatment limitation decision that may be made in accordance with these guidelines".

1. The plaintiffs were asked on many occasions to point out a particular part of the guideline they say had not been followed. Apart from the example referred to above, they were unable to do so.

1. In their submissions PS1 par 161 the plaintiffs say that it wasn't until 19 March that it was first noted "no intervention". Whilst that may have been the first time those particular words were used, it was clear from admission that a family directive was "Not for CPR". In other words if Mrs Lane stopped breathing or she went into cardiac arrest, the hospital was not to undertake active measures to get her breathing or her heart operating - she was to be allowed to die. That situation did not, in effect, change at any stage during her admission to LBH or CDMH.

11 March 2007

1. (Page 17), 11/3/07 06.55, 2.5ml morphine, family want IDC left in.

1. 11/3/07 Dr Seneviratne: poor quality of life (Daughters are looking after feeding and washing Respiratory arrest yesterday according to daughter - no breathing <5 mts. Daughter did mouth to mouth respiration. (Page 18), Response not rational. Same management as instructed (ie. by the registrar).

1. (Page 19), 11/3/07 Dr Coupe (MD), minimal improvement clinically - will notify Dr Boyce and Dr Fairfull-Smith that pt is in hospital.

1. Discussion:- The plaintiffs were critical that Mrs Lanes previous treating doctors had not been called in by the hospital. The above note is a clear indication that these doctors were to be notified by Dr Coupe. However the situation was that neither of the nominated doctors had seen Mrs Lane for well over a year - since mid 2005. It is doubtful that their intervention would have made any difference nor has it been established that whatever was done or not done in that regard, somehow constituted improper professional treatment of Mrs Lane leading to her death. There is nothing to suggest to me that the LBH did not make themselves aware of all that was necessary of her prior history in order for the proper treatment of Mrs Lane.

1. (Page 20), 11/3/07, 15.00, IDC bag changed, adequate amount dark urine drained. Analgesia given as charted to ↓ respiratory rate and effort and for pain on movement. O2 via Hudson mask,

1. 11/3/07, 22.00, O2 therapy continues. Family in attendance and attentive to Helen's needs. Care carried out in consultation with family S/C morphine given with effect. Required suctioning x2.

1. Discussion:- At PS1 par 166 it is stated that "Indeed if she did have pneumonia, the effect of the morphine contributing to Mrs Lane remaining bedbound, and on the Sunday 11th March 2007 having difficulty swallowing saliva in the evening, would have contributed to it." This is a statement made without any foundation either medical or factual and is in effect a lay opinion of the plaintiffs that is not supported by any acceptable medical evidence.

12 March 2007

1. 12/3/07, 03.10, IDC in situ. Morphine given for agitation. O2 in situ via Hudson mask. Family in attendance.

1. 12/3/07, 10.20, S/B Burrell/Coupe/Biscoe. Poor functional state. Deterioration esp last 3/12. sat - went stiff when swallowing tablets , stopped breathing a few mins. Imo: no change. Plan: cease ceftriaxone. Morphine and O2 as per family requests.

1. (Page 21), 12/3/07, 12.30 Social Work:- pt's daughter Deirdre has been pt's primary carer @ home with support from pt's husband Leo & another daughter Elizabeth. Past history conflict within family re pt's dementia. Family now in agreement re comfort care. Both Deirdre & Elizabeth will continue to assist in care for pt and wish to alternate sleep over in pt's room.

1. 12/3/07, 14.50, IDC patent & draining, O2 via nasal, pt comfortable & largely unresponsive, cries out when being turned & position changes, settles quickly.

1. 21.15, reasonably settled, paracetamol given for pain, IV therapy continues. O2 via nasal prongs continues. Pt remains at lowered level of consciousness. Pt crying out when moved or touched.

13 March 2007

1. (Page 22), 13/3/07, 07.00 Nursing: Pt very unsettled at beginning of the night. Seemed to have spasms+pain. Daughters would not let me give any morphine. Could talk her into giving her mother Valium I.V. for the spasms. Pt also very constipated → gave indecipherable lax with no success. Very hard stool. Gave pt, morphine S.C. early in the morning. Settled after that.

1. Discussion:- The issue of the administration of morphine to Mrs Lane at different times whilst at LBH occupies a number of places in the clinical notes. The plaintiffs had the view that morphine should not be given to Mrs Lane because of their understanding that it tended to reduce respiration and was likely to have a deleterious effect on their mother's situation. The medical records as to the administration of morphine were examined in detail with attempts to reconcile other observations of Mrs Lane with the cessation or introduction of Morphine at different times.

1. At PS par 97 it is submitted that:- "It is clear that any adverse or unwanted side effects Mrs Lane exhibited were going to be ignored. Her treating physician was prepared to continue to administer a drug which would cause her death (emphasised), rather than investigate the source of pain or agitation which could possibly have been caused by the very actions of medical staff inserting a urinary catheter and continuing for it to remain "insitu".". The evidence, however, fails to establish that the small dosages of morphine given subcutaneously would have led to Mrs Lanes death. Further the argument made is illogical. I would expect the hospital to continue to treat pain until the cause is known and alleviated.

1. Dr Obeid had much to say in his reports about the use of morphine in Mrs Lane's case. In his first report commencing at 3.10 he says amongst other things:-

1. "I am not aware of any adverse reactions to morphine experienced by Mrs Lane. There is no evidence in the medical records that morphine was in any way causally linked with the development of pneumonia. In common careful usage, morphine does not cause pneumonia. The only way in which it could do so would be if it were to be used in excessive or large doses and in a careless manner. Even then, in order to cause pneumonia, it would need to either cause significant respiratory depression first (which then may or may not lead to the development of hypostatic pneumonia) or cause reduced consciousness (which then may or may not lead to aspiration pneumonia).

1. The medication charts you have provided to me document what I would describe as minimal use of morphine. The doses given were as follows:

10/03/2007: one dose of 2.5 mg subcutaneously

11/3/2007: five doses of 2.5 mg subcutaneously

12/3/2007: two doses of 2.5 mg subcutaneously

13/3/2007: one dose of 2.0 mg and one dose of 1 mg subcutaneously

14/3/2007: one dose of 1 mg subcutaneously

15/3/2007: one dose of 2.5 mg subcutaneously

1. These doses are all in keeping with standard practice and in no way represent excessive doses likely to produce respiratory depression in most patients. The observation charts recorded at Lismore Base Hospital show no evidence of respiratory depression. Mrs Lane's respiratory rate was at all times greater than 20 per minute and with supplemental oxygen, hypoxia (Sa02 of less than 90%) was avoided. There is absolutely no evidence that morphine caused Mrs Lane any harm at all, let alone pneumonia. It is also relevant to note that Mrs Lane appeared to be in pain and was requiring such analgesia. The use of morphine was thus clinically indicated. Morphine, in the standard low doses used in the management of Mrs Lane, does not impair communication ability. There is no evidence morphine had any adverse impact on Mrs Lane's well-being. Rather, it is more likely that the family's requests to withhold morphine may have impaired Mrs Lane's well-being in terms of pain control."

1. In his second report he was asked to comment on Prof Ehrlich's assertions in regard to the hospitals morphine use as being "very odd indeed". Dr Obeid said:-

1. "As I pointed out in my original report, Mrs Lane received very small doses of morphine. A total of only 26.5 mg was given over 6 days. This is a very small dose by any standard. Professor Ehrlich appears to have arrived at his conclusion that the use of morphine was "odd" on the basis that "there is no evidence she had pain and morphine is essentially an analgesic. Furthermore, morphine is a ... respiratory depressant and this is the opposite of what is required in a person who has bronchopneumonia". I disagree that there was "no evidence she had pain". On a number of occasions the medical records point to pain suffered by Mrs Lane. For example:

"continued to moan and groan" (RN report 10/03/2007 2210 hours)

Had "pain on movement" (RN report 11/03/2007, 1500 hours)

Was "crying out when touched" (RN report 12/03/2007, 2115 hours)

"Seemed to be in pain" (RN report 14/03/2007, 0645 hours)

1. I note that on one occasion, Mrs Lane's family requested that morphine be given for pain relief prior to the administration of an enema (see entry 13/03/2007 1525 hours). Hence, even Mrs Lane's family members noted that pain was present, at least on one occasion.

1. Whilst I agree with Professor Ehrlich that "morphine is essentially an analgesic", it is also important to note that morphine is used for the control of many other symptoms in the palliative care setting. Such symptoms include cough, dyspnoea, agitation, diarrhoea and pulmonary oedema. It is true that morphine has a "respiratory depressant" effect, but this is at much larger doses than administered to Mrs Lane. At no stage was Mrs Lane's respiratory rate below 20 breaths per minute. There is therefore little evidence to support the claim that she suffered respiratory depression as a result of the very small doses of morphine she received.

1. It is important to understand the principle of double effect when discussing the use of morphine and its potential side-effects. It is common in the palliative stages of an illness for patients to suffer from a distressing symptom that is amenable to therapy with morphine (or other drugs). If use of such medications is in keeping with appropriate clinical care in standard therapeutic doses and an adverse outcome occurs, the principle of double effect is observed. There is no intention to cause an adverse outcome and the appropriate dose of medication is used. Relief of the symptom is expected and usually occurs. Any adverse outcome is unintended and does not constitute an act of harm on the part of the prescribes."

1. I am satisfied that any morphine given to Mrs Lane was at such a low dosage as to have been highly unlikely to have had any deleterious effect on her overall situation. The maximum dosage ever prescribed was 5mg subcutaneously over a number of hours which is a very low dose and was, according to the medical evidence, unlikely to have caused any deterioration in her condition despite Mrs Lane's size and weight. The purpose of giving morphine is both for pain relief and patient comfort. This was not the situation one sees in terminally ill persons in great pain who are prescribed increasingly larger doses of morphine to a stage that the morphine begins to affect the ability of other organs of the body to function appropriately. In fact there is no expert evidence to suggest that the prescription and amount given of morphine to Mrs Lane was either inappropriate, incorrect, negligent or hastened her ultimate demise

1. 13/3/07, 10.20, S/B Coupe/ Biscoe:- , family present, pt looks comfortable, cries out sometimes, constipation. Plan, subcut fluids, enema, analgesia, if family decide to remove IDC, then it can be removed, then monitor UO [urinary output].

1. 13/3/07, 15.25, settled when quiet, but does respond to painful stimuli & position change. Enema given as charted, minimal result, continues O2 via , family members requested some pain relief prior to enema & 2mg decided by family. Result to enema minimal at this time. Daughters have requested RMO to attend & R/V pt's condition. RMO paged & he will attend ASAP.

1. 13/3/07, 16.20, paged Dr Coupe - re family wishes pt to have Valium before examination - but it is only recorded for nocte use.

1. 13/3/07, 17.20, Dr Coupe administered a fleet enema. Pt's relatives have refused to have their mother receive S/C morphine. Doctor agreed that it is available PRN if required. So pt repositioned without analgesia.

1. 13/3/07, 21.30, have given pt IV 0.5mg Valium as relatives have still refused any offer analgesia. Pt has opened her bowels well,. Pt's daughters wished to do her mouth care. Pt is very sensitive to touch, especially her lower limbs. Pt has now started to pull on IDC tubing - tubing secured against leg. There were some social - AVO issues with one of the relatives. Is it possible to have a s/worker review?

14 March 2007

1. Page 24, 14/3/07, 06.45, pt seemed to be in pain. Made daughters aware of but they would not let me give more than 1mg of morphine SC. It didn't seem to be settled after that, but daughters told me she'd always be like that and they're sure that she's not in pain. Explained them that she looks very uncomfortable to me and that I'd like to give her morphine before PAC (Pressure Area Care), daughters decided rather not to have PAC. Explained them, how important it is and made them aware of pressure areas and how quick they occur. Daughters still preferred to leave her in the same position to keep her comfortable and not give any morphine. They also asked if IDC could come out because this might be the reason for her pain. I told then I'd like to leave this decision up to morning staff. And I highly recommended meeting with relatives medical team + nursing staff to talk about these issues.

1. 14/3/07, 1000hrs, daughters refused observatory interventions therefore no obs taken.

1. 14/3/07, 1005, S/B Burrell/Biscoe/Coupe, family present nil improvement in overall condition, pt looks in pain. 1mg morphine inadequate. Low grade fever. Sat 93% 3L. stable. Daughters discussed desire for home palliative care. Husband (next of kin) does not want this - would prefer pt to stay in hospital. Son agrees. Adequate analgesia discussed/family. Page 25, (cont) plan 1. remove IDC 2. reduce IV fluids to 30 ml/h 3. chart regular morphine 5mg q4h. For no other analgesia.

1. 14/3/07, 13.05 Social Worker:- met pt's husband, 2 sons & one daughter. D/c concerns re care & conflict issues re daughters overriding father's wishes re mother's care. Daughter (Elizabeth) advised concern morphine was affecting mother's respirations & both daughters wanting to take pt home - feel she has not been adequately assessed and that the morphine was interfering with assessment - Elizabeth advised she & her sister believe their mother has woken up since ceasing morphine. The older sister Deirdre wants the IDC removed - advised her mother has thrush and the IDC is irritating mother - she needs to be cleaned up and needs a douche. Pt's husband & brothers have agreed to no morphine but feel the daughters are preventing their mother from having a comfortable and peaceful death. They do not wish pt to be taken home by the daughters (SW cont page 26), in addition Elizabeth has an AVO against her sister Deirdre and SW has spoken to Elizabeth about same. Nursing staff are aware possible security issue. Daughters have requested a speech path R/V as think pt may be able to swallow as she is yawning. SW has made referral via phone to speech - not available today. SW did discuss pall care R/V this is to look @ alternative pain relief & to hopefully assist daughters perception of situation SW will continue to support. SW has concerns re pt's daughter Deirdre - who very involved in mother's care, talk fast, and appears tired - teary @ times SW PLAN, to continue support to family. Have spoken to day nursing supervision. Have made referral to speech. Liaison with med team. Have spoken to pt's husband re guardianship & his role as decision maker.

1. Discussion:- The social workers note is revelatory of the conflict that was escalating among the family as to Mrs Lane's treatment. The situation regarding the IDC and its removal or otherwise is, to say the least, subject to confusing changes of mind by the family or individual members of it. However there is no expert evidence to suggest that the catheter situation caused any deterioration in Mrs Lane's condition or was an inappropriate form of treatment. I have no doubt that having an IDC may be uncomfortable and even more so if there is the presence of thrush, but that has to be counterbalanced against the serious problems associated with urinary retention and the wearing of uncomfortable wet sanitary pads and the like. Mrs Lane was not able to indicate what she felt and attempts to guess at her feelings are somewhat meaningless in determining whether or not appropriate professional practice was followed.

1. Page 27, 14/3/07, 13.30 Medical Burrell:- the plan at present for Mrs Lane is to continue with the catheter remaining in. No regular morphine to be given but if Mr Lane requests that she be given morphine then this is to happen. If either Deirdre or Elizabeth interfere with this the medical team need to be notified immediately. It is clear to me that Deirdre is not behaving in a rational manner with regard to her mother's impending death.

1. 14/3/07, 15.30, Nursing: family in attendance. Assisted family to bed sponge and change. Noticed that pt has a lumpy discharge around vaginal/groin area. One of pt's daughters insists on doing most of pts personal care - canesten cream applied to pts area of discharge by daughter at her insistence. Family generally challenge to deal with and difficult to establish and maintain pt care whilst daughters in attendance. Daughters refusing morphine for pain management.

1. 14.3/07, 16.00, Medical Burrell:- patient comfortable & does not appear to be in pain. The plan for this evening/overnight is that Mr Lane (continued on Page 28) will make clear to the staff before he leaves what he wishes in regard to his wife's care. This is to be documented & followed even if his daughters try to countermand his wishes.

1. Page 28, 14/3/07, 15.00, Social Worker:- R/V of pt & family this afternoon. Daughter Elizabeth v upset re pt being administered morphine. Will R/V in am.

1. 14/3/07, 16.50, Nursing: repositioning of pt is necessary for PAC, spoken to pt's husband (Leo) and he wishes to comply with Dr Burrell's recommendation but the daughter wished no morphine prior to repositioning. Leo has therefore agreed to allow 2.5mg of morphine s/c. Observations registered before administration and then again an hour later to indicate to his daughter that there are very small obs changes.

1. 14/3/07, 20.00, ADD: asked to reposition pt, and wished to administer Valium before hand. Daughter said she wished to ask her father first, who is due back shortly. Also was going to agree IV Panadol but again was asked not to unless she has a temperature, seems comfortable at (continued page 29) this time. Daughter wishes to do the mouth care and replace low dentures. Have appeased to their wishes, waiting for Leo to arrive.

1. Page 29, 14/3/07/ 22.10, Nursing: Husband has recommended morphine as to Dr Burrell's script. The daughters have still large issues about giving any medication and the conversations in the room because very loud - the nurse in charge took all the family out for further discussion. Pt repositioned in half the time with the wards man and in my opinion, the pt did not 'cry out' as much as previous repositioning / also explained this to the husband and asked him to discuss the repositioning with his daughter. Family wish to discuss care with team in the morning.

15 March 2007

1. Page 30, 15/3/07 05.25, Elizabeth, Deirdre and son present. Quizzed by Deirdre as to whether I would be giving Helen morphine overnight. I explained that if Helen looked in any distress that I would indeed administer morphine. Mr Lane consulted by phone by son and requested that only 1mg of morphine be given if absolutely necessary @ my discretion. 2/24 PAC and repositioning attended. Helen cries out initially when repositioned but settled within 2 minutes to a sound sleep no morphine given yet. Son and Elizabeth stayed in room overnight, both managing to get some sleep.

1. 15/3/07, 09.10, family wish further discussion with team.

1. 09.40, Pt given sponge bath in bed - repositioned to be on her back + according to daughters request. Mouth and hair care given by daughter. Family wished not to administer analgesia, but to do so if pt in distress. IDC in situ. Family would like to have the pain /palliative team to R/V.

1. 15/3/07, 12.00, S/B Coupe/Biscoe, patient seems comfortable (continued on page 31) fleet enema charted. IDC out. Speech path will r/v today. Morphine 2.5-5mg PRN q4h.

1. Page 31, 15/3/07, 12.30, Speech Pathologist assessment:- pt referred by SW to assess swallow per family request. Noted complex family situation. Pt with Hx of Parkinsons Dx, dementia and seizure. Swallowing, pt LIB & difficult to assess alertness, pt making nil attempts at eye contact, groaning observed only, pt unable to perform any movements for an oral musculature assessment despite tactile stimulation, nil spontaneous swallows observed. PT IS NOT SUITABLE FOR A SWALLOWING ASSESSMENT TODAY DUE TO *POOR FOLLOWING DIRECTIONS *POOR ALERTNESS AND * NIL SWALLOWING SKILLS OBSERVED. Above explained to pts family. Risk of feeding pt is very high for aspiration (continued page 32) of any consistency. Recommend: (1) Keep NBM, (2) Maintain regular oral care. Strict instructions given to family to ensure nil aspiration. (3) Monitor temps & chest. (4) Will monitor. (Kostal) SP PATH 2157.

1. Discussion:- The issue of a speech pathology review is of substantial concern to the plaintiffs who maintain that both reviews at LBH and CDMH were inadequate and did not take full account of Mrs Lane's inability to hear and her difficulties without glasses. Both speech pathologists gave evidence over the 17th and 18th of May. The hospitals had directed Nil By Mouth (NBM) until a speech pathologist assessment. Ms Kostal saw Mrs Lane on 15 March ie four to five days after admission. I do not accept that Ms Kostal was negligent in her assessment of Mrs Lane or that she did not take into account her known medical history. Until it is known that a patient has the capacity to swallow spontaneously, it would be negligent for the hospital give any oral intake because of the severe risk of the patient choking or aspirating and ending up with pneumonia.

1. The tenth particular is Failing to obtain accurate pre-hospital admission medical treatment and pre existing conditions from Helen's treating doctors by either contacting such doctors and by requesting their records and obtaining such information from Helen's primary care giver, Deirdre Lane. I find that there was nothing about the way in which the hospital gained information about Mrs Lane's pre morbid situation that could be regarded as negligent. Bearing in mind these events happened over five years ago and the ability to recollect every detail must be limited, I note that Dr Coupe made a record as to contacting Drs Boyce and Fairfull-Smith on 11 March. Additionally, as is very apparent from the clinical notes, it became fairly obvious that there was a family conflict about what was going on. That places the hospital in a invidious situation. Whilst Dr Beek, the treating doctor was not apparently spoken to, there is little doubt from his evidence that he would not have contributed to a greater understanding as to Mrs Lane's pre-morbid condition or how she should be treated than was in fact the case. The background history obtained by the hospital was not in my view inaccurate having regard to other objective evidence referred to in the chronology above.

1. The eleventh, twelfth and thirteenth particulars are Administering or continuing to administer to Helen morphine when it was apparent that Helen was having an adverse reaction to the drug including the development of a chest infection with subsequent development of pneumonia. Administering and/or continuing to administer to Helen morphine when such drug impeded Helen's ability to communicate her wishes in respect to treatment and Administering and/or continuing to administer morphine to Helen when such drug was having an adverse effect upon Helen and her wellbeing and Administering and/or continuing to administer morphine to Helen when such drug was having an adverse effect upon Helen and her wellbeing. I totally reject these particulars as having any relevance. The expert evidence from Drs Raftos and Obeid clearly disagree with these propositions as being evident of any neglect. However their view is also the view of all the treating doctors, Dr Coupe, Dr Burrell and Dr Laird. All practitioners agree that the dosages received were the minimum therapeutic dose and highly unlikely to have adversely affected Mrs Lane in any way. There is no evidence to support that Mrs Lane had developed a chest infection leading to pneumonia at any time proximate to her receiving morphine.

1. The fourteenth particular is Failing to obtain or properly obtain specialist neurological or geriatric opinion as to Helen's condition so as to properly prepare an appropriate management plan for Helen. There is no evidence that this would have been advisable, warranted or effective. Indeed the evidence is to the contrary, that it would not have made any difference to Mrs Lane's outcome (see Dr Obeid in particular).

1. The fifteenth particular is Failing to continue to administer to Helen antibiotics when she was in need of such medications as she was developing an infection. I find that Mrs Lane was administered antibiotics as and when she needed them. I find no evidence of any relevant infection after antibiotics ceased. I am satisfied that she received all appropriate medication having regard to her condition and its management.

LIABILITY

1. Unless the court considers peer professional opinion irrational, provided a medical professional acts in a manner widely accepted in Australia as peer professional opinion as to competent professional practice at the time the service was provided, a person does not incur liability in negligence arising out of the provision of a professional service. (s5O CLA). The defendant argues that its professional services to Mrs Lane were conducted in accordance with peer professional opinion.

1. It would have to be acknowledged that end of life medical treatment is a fertile ground for the admixture of ethics, morals and the law, not to mention particular religious beliefs. The courts are not often involved in decisions as to such treatment, at least while the patient is still alive although some examples are Northbridge v Central Sydney Area Health Service [2000] NSWSC 1241 and Messiha v South East Health [2004] NSWSC 1061. In the former case the court held that what constitutes appropriate medical treatment in a given case is a medical matter in the first instance. However, where there is doubt or serious dispute in this regard, the court has the power to act to protect the life and welfare of the unconscious person having regard to the best interests of the person concerned.

1. In the latter case Howie J said at par 25 that the Court ... is concerned with the best interest of the health and welfare of the patient and it is not bound to give effect to the medical opinion, even where, as here, it is unanimous. However, it seems to me that it would be an unusual case where the Court would act against what is unanimously held by medical experts as an appropriate treatment regime for the patient in order to preserve the life of a terminally ill patient in a deep coma where there is no real prospect of recovery to any significant degree. This is not to make any value judgment of the life of the patient in his present situation or to disregard the wishes of the family and the beliefs that they genuinely hold for his recovery. But it is simply an acceptance of the fact that the treatment of the patient, where, as here, the Court is satisfied that decision as to the appropriate treatment is being made in the welfare and interest of the patient, is principally a matter for the expertise of professional medical practitioners.

1. The facts in that matter were that the patient, was admitted to the Intensive Care Unit of the hospital having suffered an asystolic cardiac arrest. As a result he was unconscious and apparently in a deep coma. The treating doctor determined that the current treatment regime of the patient should cease and that he should be removed from the Unit and placed under palliative care. She accepted that withdrawing treatment in the Unit would have the effect of reducing his life expectancy from possibly weeks to possibly days. An application was brought by members of the patient's family in order to restrain the medical staff at the hospital from altering the patient's treatment. The family believed that, contrary to medical opinion, there were some slight signs of improvement in the patient's condition and that, if the current treatment regime continued, thus prolonging his life by even a short period of time, the patient's condition might improve.

1. Even bearing in mind, as was stated by Lord Mustill in Airedale NHS Trust v Bland [1993] AC 789 (@897), that a decision on "best interests" is an ethical, not a medical decision and that medical opinion is not necessarily decisive, in the present case, I cannot see that any decision made by the medical staff at LBH or CDMH was otherwise than in the best interests of their patient.

1. As I stated previously, hospitals operate within increasingly limited budgetary restraints. In some respects those considerations force ethical guides such as the ELCDMG which have been previously referred to. Hospitals have to prioritise patient care in accordance with need and urgency. Hospitals have limited staff and, in many rural areas, hospitals may have less than the optimum number of health professionals in a particular speciality. The LBH which is a reasonably large hospital only had one Speech Pathologist who theoretically may be required to see many patients beyond her physical capacity. All those factors weigh upon the mind of staff and must affect the decisions made. Is an MRI necessary? Can I justify transferring the patient many kilometres to a hospital that has equipment not available here? Should I get the Speech Pathologist out of bed on her day off to see the patient if the condition is not urgent?

1. Whilst Mr Lane's view of how his wife was treated is valuable, the test must be an objective one in accordance with widely accepted professional practice. However I do not think that Mr Lane's view of how Helen was treated is misplaced in any way. The legal and undisputed fact is that he was Mrs Lane's next of kin and her legal guardian at all relevant times. That doesn't mean that if he accepted a course of conduct on the part of the hospital, that conduct escapes supervision. There are two bases to do so. The first is whether the conduct was necessary and appropriate. The second is whether it was properly explained to Mr Lane in terms he could understand. This is not a Rogers v Whitaker [1992] 175 CLR 479 situation where there was a failure to advise of a highly uncommon but catastrophic side effect of the proposed treatment such that the plaintiff in that case would not have taken the risk. The treatment risks or outcomes relevant to Mrs Lane were, I am satisfied, adequately explained to Mr Lane and others in the family and that he understood those explanations despite the no doubt emotional experience he was undergoing.

1. There is also no doubt that the plaintiffs understood what was happening in the objective sense, despite their wishes for other things to be done.

1. However the plaintiffs have been unable to establish that even if all the things they say should not have been done were done and if all the things they say should have been done were not done, it was more likely than not that Mrs Lane's outcome would have been meaningfully different in the short term, that is that Mrs Lane wouldn't have died at or about the time she did in fact die.

DAMAGES

1. Part 3 (PS3) of the plaintiffs submissions goes to the issue of damages. Part 4 (PS4) responds to the defendant's submissions.

1. Under the CL Act s16 a person is not entitled to damages for non -economic loss unless their injury is at least 15% of a most extreme case. Dr Pearson, psychiatrist is the plaintiffs' medico legal expert. He was initially briefed by solicitors but has nowhere made or been asked to make an estimation of their injuries as a percentage of a most serious case. If the plaintiffs do not make the threshold, they are only entitled to damages for economic loss, home care and out of pocket expenses.

1. I would accept that both plaintiffs suffer from a recognisable psychiatric illness. What they have to prove is that their illness can be related to the defendant's negligence. There is material before the court indicative of the many problems Deidre and Elizabeth had before their mother passed away. Neither could be regarded as having led a normal trouble free life. Prior to their mother's death there is evidence of significant conflict between each other over various things including their mother's care as well as conflict with other members of the family. The significance of the family conflict was such that it was having a deleterious effect on Mrs Lane's own health as can be seen from Dr Beek's clinical notes.

1. In Ex 57 at P129 there is a letter from a Ms Lynch that reveals some sort of mediation being attempted between Mr Lane and Deidre, unsuccessfully, on a number of occasions to resolve family conflict. When these sessions occurred is not stated. It is also quite clear from the same exhibit that Deidre has consulted many counsellors, psychologists and psychiatrists since 2007 although how much of this related to ongoing family disputes as opposed to Mrs Lane's death is difficult to determine. There was and still is significant family turmoil that has on one occasion ended up in the Local Court.

1. I am unable to attribute cause or blame for this family dysfunction but it was a situation that pre-existed Mrs Lane's hospitalisation. A counsellor, Mr Gillard at the Casino Medical Centre said on 14 Sept 2007 that Deidre's presentation on six occasions since 20 July had "features of anxiety and depression due largely to a dysfunctional family dynamic, itself exacerbated by her mother's recent death and associated grieving".

1. Whilst pre 2007 material is not abundant, there is a sufficiency of it to clearly indicate that both Elizabeth and Deidre had serious personal problems well prior to their mother's hospitalisation. A significant amount of this related to the family situation about which it is not my role or function to attribute blame, but it is clear that the over all family dynamics, as far as it affected the plaintiffs, was substantially more severe than what might be regarded as normal.

Elizabeth:-

1. Exhibit 44 are medical records in regard to Elizabeth dating back to 1987. Much of the handwriting is indecipherable but it appears that she was at that time suffering chronic anxiety as a result of involvement in a hold up. From March 2001 she had a number of disputes with her GP over obtaining medical certificates to be off work and was complaining of work related stress as making her ill. Despite advice, she refused to see a psychologist. In July that year her GP wanted to discuss the possible relationship between her physical symptoms and anxiety but she refused stating that her "illness was in her mind". In October she was complaining again of work related stress endeavouring to get a four day week. In July 2002 she requested a letter to not return to work related to a complex and involved family dispute with Deidre. She was looking after four foster children and cited family dramas, dynamics, dysfunctional problems, sybling problems and rivalries.

1. In August 2003 she spoke of her mother's pains, Deidre's problems, alternate therapies, Deidre living in a caravan with 14 dogs and the family dynamics. In August 2004 Her GP suggested she see Dr Arnoldus for counselling re family dynamics and in November she requested a referral to Dr Scurrah re family relationships.

1. In Sept 04 she saw a counsellor (DTB P397) concerned about the welfare of her mother. She said that Deidre lived with her parents because, according to their father, she couldn't live anywhere else. She said Deidre controls her mother to such a degree that it "constitutes abuse" and her mother's emotional and mental health was suffering.

1. Exhibit 51 is a note from Dr Scurrah (psychiatrist) dated 25 /11/04 who stated that she had a number of legitimate concerns regarding her mother, in particular her mother's psychological state and whether there were significant areas of exploitation within the family. Her history indicates her mother may have dementia or pseudo dementia.

1. DTB P399/400 is an extensive note on a consultation with a counsellor on 30 March 2005. This related to continuing difficulties with the family. She had not spoken to Deidre for some months and thought she was drinking and "on the edge". She discussed Deidre assaulting her and the possibility of an AVO. She felt her parents were powerless against Deidre and would not ask her to leave.

1. In September 2006 she discussed her sister moving in with her mother and being over controlling. In October 2006 she wanted to talk about her mother and Deidre and the family dynamics with Deidre being a controlling influence. She said her mother was anxious, depressed and dementia (?), Deidre had an overbearing effect plus an alcohol problem which caused her to behave in a bizarre manner. The rest of the family were not game to speak to Deidre who bullied her mother at times.

Deidre:-

1. Between July and November 2002, Deidre had nine counselling sessions with counsellors at ACON, four sessions between April 2003 and March 2006 and five sessions after June 2007. There are comprehensive notes of most of these sessions that appear as exhibits a number of times due to doubling up. I will refer to the defendant's tender bundle page numbers (DTB P) although, as numbered, a lot of the material is out of order. The notes themselves are not necessarily chronological within the same page and took some time to sort out.

1. Initially she was referred because of an over consumption of alcohol leading to her hospitalisation on 12 July 2002 (DTB P383). She expressed concerns as to an ex-boyfriend and a previous sexual assault but went on to discuss her sister moving her belongings. She stated she didn't care if she lived or died but would not commit suicide as that would be too hard having to put all her dogs in the car and seal up all the holes. She said she had always felt depressed but refused a referral to a psychiatrist (DTB P377).

1. She was subsequently seen on 17/7 and 24/7, the latter with Elizabeth also present. There were a further six sessions that year and then one in April 2003.

1. The next entry is in November 2005, a referral from Kyogle Hospital following a panic attack that occurred after being assaulted by Elizabeth. She was seen four further times up to March 2006 when she complained that Elizabeth had come at her with a bread knife and she had got an AVO against her (DTB P388).

1. Throughout the notes there are references to the family situation generally and her mother and sister in particular.

1. There are a number of post March 2007 consultations at which time she was dealing not only with her mother's death but also the deaths of two close personal friends.

Discussion:-

1. Leo and Helen Lane had seven children, four boys and three girls all of whom are I understand still alive. Mr and Mrs Lane were teachers who married in 1952 and moved to Casino where, as I understand it, they accumulated substantial agricultural property and cattle over the years. I am unaware of the occupations of the other family members but Mr Lane has now retired from farming. It is quite apparent that for whatever reasons, life for Deidre and Elizabeth did not run a regular course, especially from the late nineties into this century. There has clearly been a long standing and bitter dispute between them and the family and with each other that has resulted in significant disharmony prior to Mrs Lane's death and since. I do not know the nature and extent of the families holdings nor do I know what may have been provided in any will left by Helen or whether such factors are at play somehow in this matter.

1. I am satisfied that both plaintiffs had serious non-physical problems prior to March 2007. Those problems continue and have no doubt been affected by their mother's death. Regrettably, not many of the psychiatric or psychological profession who have provided reports were made aware of both sisters pre-existing situation in any detail. Some doctors have provided reports that clearly indicate that they have taken a side in the current situation without attempting to ascertain, at least as much as they could, what in fact was the true situation.

1. For example Dr Walkden-Brown, GP, (Ex 54) says The non-inclusive attitude displayed toward Ms Lane and her sister Elizabeth by their siblings (the Lane brothers) and several members from the medical fraternity raises my suspicion that "there is something rotten in the state of Denmark", especially in view of repeated attempts to administer parenteral morphine to an elderly patient who was apparently not in pain and who was not in the terminal phase of an established medical condition to warrant end stage palliative care. It appears somewhat uncharacteristic that the medicos did not keep adequate notes in relation to the planning and carrying out of their medical management. Equally it is hard to understand was why an elderly patient with willing and capable family carers was not permitted to be managed in the familiar surroundings and in the comfort of her own home and bed.) Dr Arnoldus-Lewis, psychologist, (Ex 57 pp 81-84) says In my opinion, Ms Lane is a woman of rare qualities, committed to high standards of integrity and honesty. She has been unfairly vilified by her father and brothers for her extraordinary non-conformist attitudes and behaviours which they have used to portray her as psychiatrically disturbed. However, according to Ms Lane she has never been previously diagnosed with a psychiatric disorder or incarcerated in a psychiatric institution. Ms Lane's chronic PTSD and Associated Disorders will more than likely need intensive long-term therapy to help her cope with what she terms as her father's and brothers' hostilities, threats, 'betrayal and defamation' of her extraordinary personality.)

1. Whilst the two medico-legal psychiatrists Drs Petroff and Pearson may disagree over the formers view expressed in evidence as to a folie a deux operating with the plaintiffs, their general opinions are basically consistent. Both feel that, without use of medication, the sisters will not recover although there may be some improvement at the conclusion of litigation. I do not find it necessary to resolve that particular issue one way or another despite my comments at hearing and which have been referred to by Mr Sergi in his submissions at pars 205-209 as it does not really add to or detract from the plaintiffs' conditions except, as he says, to perhaps explain the inexplicable.

1. According to Ex 7, Deidre has not been in any paid employment since 1995. Elizabeth did work at Centrelink but as I understand it that ceased before 2007. I do not know what her earnings were and there is no evidence of what they might have been.

1. Given Deidre's pre 2007 work history I could not be satisfied that she would be capable of obtaining any meaningful paid employment for reasons completely un-associated with her mother's death. Similarly Elizabeth's work history is substantially unknown and again I doubt that, due to factors existing at the time Mrs Lane was hospitalised, she had a capacity for gainful employment, although she was at least more recently employed than Deidre.

1. So where does that leave us at this point in time. I am satisfied that their current inability to work due to a psychiatric illness is substantially unrelated to factors relevant to their mothers death. In that regard I would not be satisfied that either plaintiff's injury arising from Mrs Lane's treatment would amount to 15% of a most serious case, as that expression is understood.

1. The injury each plaintiff suffered as a result of Mrs Lane's hospitalisation as far as each plaintiff is concerned, relates to the belief held by both sisters as to their mothers wrongful treatment whilst a patient within the two hospitals. That they have that belief I do not doubt nor do I doubt the ongoing effect it has had on them, in combination with other un-related but serious emotional and personal issues. However it is my opinion that their belief as to their mother's treatment at the hands of the defendants is a mistaken and misguided belief that has no basis in the facts established to my satisfaction during the trial. Thus while the effect continues, it is an effect that has not been caused by the defendant's negligence.

1. For the above reasons I am not satisfied that the plaintiffs have established any negligence on the part of the defendant nor have they established any quantifiable resulting damage.

ORDERS

1. There will be a verdict for the defendant in each case. Subject to any additional consideration, costs should follow the event. I order the plaintiffs to pay the defendants costs. The exhibits may be returned.

**********

Decision last updated: 26 February 2013