Fuller v Australian Capital Territory
[2022] ACTSC 361
•22 December 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Fuller v Australian Capital Territory |
Citation: | [2022] ACTSC 361 |
Hearing Date: | 4-5 October, 28 October, 8 November 2022 |
DecisionDate: | 22 December 2022 |
Before: | Robinson AJ |
Decision: | See [95] |
Catchwords: | CIVIL LAW – NEGLIGENCE – Personal injury – where plaintiff claimed injury arising out of defendant’s negligence in failing to take precautions to guard against risk of needle breaking during hospital procedure – where duty of care conceded to be owed – where risk of harm foreseeable and not insignificant – consideration of what precautions anaesthetist should have taken in response to the risk in the prevailing circumstances |
Legislation Cited: | Civil Law (Wrongs) Act 2002 (ACT) ss 42, 43, 44 |
Cases Cited: | Bradshaw v McEwans (1951) 217 ALR 1 |
Texts Cited: | Caroline Martinello MD et al, ‘Broken spinal needle: case report and review of the literature’ (2014) 26 Journal of Clinical Anaesthesia 321-324 |
Parties: | Bronwyn Fuller ( Plaintiff) Australian Capital Territory (Defendant) |
Representation: | Counsel D Richards (Plaintiff) S McCarthy (Defendant) |
| Solicitors United Legal (Plaintiff) ACT Government Solicitor (Defendant) | |
File Number: | SC 299 of 2021 |
ROBINSON AJ
Proceedings
The plaintiff, Bronwyn Fuller (Mrs Fuller) brought proceedings against the defendant (Canberra Hospital) on the basis of vicarious liability for the alleged negligence of an anaesthetic registrar and a consultant anaesthetist.
During the administration of a spinal anaesthetic at the Canberra Hospital, the spinal needle being used broke in half with one half remaining lodged in Mrs Fuller’s spinal column.
The case went to trial upon the statutory regime set out in sections 42 to 44 of the Civil Law (Wrongs) Act 2002 (ACT), together with the common law of negligence.
The proceedings were heard over four days and refinements were made to the respective parties’ positions.
Application to amend
One matter of trial procedure should be mentioned at the outset. At the commencement of the first day of this trial, counsel for the plaintiff sought leave to amend the amended statement of claim to allege that the precise site of the administration of the spinal anaesthetic was in dispute and counsel wished to contend for an alternative site (the site is denoted by reference to numbered lumbar vertebrae). At the time of the application, there were no statements of evidence from the doctors who carried out the procedure nominating a precise site but there were hospital records/notes which could not easily be reconciled. I told the parties that the trial should continue with it being open to each side to allege the precise site for which they contended on the basis of the evidence to be given and documents to be tendered. The amended statement of claim was therefore not further amended but the trial was conducted on the above basis.
The general approach to the administration of spinal anaesthetic
Mrs Fuller sought medical services from the Canberra Hospital in relation to the imminent birth of her second child. On 12 February 2020, Mrs Fuller was assessed for the purposes of being admitted to the hospital to give birth by caesarean section.
Although there were matters for consideration, this assessment was unremarkable for present purposes. Arrangements were made for Mrs Fuller to attend the Canberra Hospital on 14 February 2020 to undergo a caesarean section with the administration of spinal anaesthetic. One matter recorded and which was relevant to any administration of spinal anaesthetic, was that Mrs Fuller had a body mass index of 40.
In the case of Mrs Fuller, there was no dispute as to the general approach to be taken to the administration of spinal anaesthetic. I have set out that approach so that the findings of fact as to the manner of that administration can be properly understood in context.
For a spinal anaesthetic, the operator attempts to pass a needle between the spinous processes of the vertebrae, before injecting local anaesthetic into the subarachnoid space. When the needle is located within this space, clear cerebrospinal fluid is seen to flow from the needle hub. Annexed to this judgement is a diagram setting out anatomical features of the spine. A second annexure shows the spine from behind and the opening between the spinous processes through which the operator attempts to pass the needle. In the second annexure it can also be seen that no nerves run through or across the midline until deep into all the ligamentous structures.
Two needles and related equipment which includes a stylet are required to accomplish the task. These are contained in a sterile plastic package available to the anaesthetist. A stylet is put into position so that the anaesthetist does not inadvertently collect skin that has been trapped in the needle.
After scrubbing up, an anaesthetist cleans and attaches a drape to the patient’s back. The anaesthetist then administers a local anaesthetic to the position chosen. This will be a midline on the spine but between the chosen vertebrae. A needle, called the introducer needle, is inserted in the patient’s back. This needle is inserted to a depth of about 20 mm. Then a thinner and longer needle, about 80mm in length, is inserted through the introducer needle and protrudes out from the introducer and pushes past tough membrane tissue until it reaches the subarachnoid space where anaesthetic solution is injected into the cerebrospinal fluid. The work is sensitive to subtle touch and feel. If the spinal needle is in the right place, spinal fluid will run back through the spinal needle so that it begins to drip from that needle. It is at that point of time that a syringe can be attached to the spinal needle and used to inject the anaesthetic to be applied to the patient.
The actual spinal needle is very thin and delicate. It protrudes out from the introducer about 50 mm in length. A duplicate needle was in evidence and was able to be examined by the parties and myself. Of course, the success of the procedure depends on the navigation of the anatomical features of the spine including bone. It was explained in evidence that spinal needles are deliberately fine in order to reduce the risk of post-dural puncture headaches. The “bigger the needle used the stiffer it is, but the larger risk of headache. The choice is the smallest needle that will do the job and with smaller needles, the introducer becomes necessary because the needle is so fine it will deform just going through the skin”.
I interpolate here to take note of the fact that anaesthetists record the position on the spinal column where they have sought to obtain access to the spinal column. This is recorded as being between two vertebrae, for example such as L4/5. It is recognised in the profession that such a description will be or could be merely an approximation. There are anatomical reasons for this and also, for most matters, an approximation will suffice. I have kept that matter in mind when assessing the reliability of hospital notes/records and descriptions and discrepancies in witness testimony.
The administration of spinal anaesthetic to Mrs Fuller
Mrs Fuller attended at Canberra Hospital with her husband in the morning of 14 February 2020. There were a number of operative procedures before hers and when her turn came, she was taken to the anaesthetic bay. There she met, for the first time the two anaesthetists who were to carry out the procedure. Dr Abeygunasekara was a registrar who had commenced his formal training at the Canberra Hospital at the end of January or start of February 2020. Dr Stephens was a consultant anaesthetist. Dr Stephens started her training as an anaesthetist in 2000 and in 2005, she became a Fellow of the Australian and New Zealand College of Anaesthetists. Dr Stephens gave evidence that she has a special interest in obstetrics. As was the practice at Canberra Hospital at that time, the patient’s husband was not permitted to follow her to the anaesthetic bay.
The two doctors confirmed their patient’s details and explained what was going to happen. Beforehand, the doctors had agreed on the procedure, the needle gauge (24G Sprotte) and the drugs to be administered. Again, for present purposes, nothing remarkable emerged from the explanations and confirmations. Nor is there any criticism of the two doctors as to the way they set up for the procedure.
One matter can be noted at this time. Both Dr Abeygunasekara and Dr Stephens “scrubbed up” indicating that Dr Stephens had prepared herself to step into the conduct of the procedure should that become necessary.
Mrs Fuller walked or was wheeled into the theatre. She was asked to sit on the side of the bed with her legs protruding over one side and asked to bend so that her lumbar spine was extended outwards.
Dr Abeygunasekara prepared the patient conventionally for a spinal anaesthetic. Dr Stephens was present at this time and the two doctors were standing behind their patient. Dr Stephens stood in close proximity to Dr Abeygunasekara so that she could observe the actions of Dr Abeygunasekara very closely. Little was said between Dr Abeygunasekara and Dr Stephens because experience has shown that a patient might be frightened or concerned by a conversation on the subject of the procedure.
Dr Abeygunasekara
From this point in the narrative, it is instructive to paraphrase Dr Abeygunasekara’s evidence and, in so doing, follow a chronological pathway.
When asked about his experience in administering a spinal anaesthetic, Dr Abeygunasekara said that he had done so “more than 10 times”. The doctor gave the following evidence of how he started the procedure:
In terms of starting – what level – sorry?---In terms of starting I would feel the iliac crest, which would correspond to levels L1-L2, which is what we want to go below, which is where the spinal cord normally ends. And from memory I initially went in at L4-5, which what was my initial part and I was not successful and then I tried the level above after, which is level L3-L4.
And so in terms of each of those passes can you explain your first attempt? Can you walk his Honour through exactly what you did – what you recall that you did?---Yes. So I initially injected the – so after – following antiseptic procedure, the prep – we prep everyone's back with ChloraPrep. After that had dried I would have put the drape on, after which I injected some local anaesthetic. Then at L4-L5 I used a 24 gauge spinal needle. See, initially after injecting the local I take that local needle out, I put the initial introducer needle in, following which I put the spinal needle in. In this occasion I wasn't successful because I hit bone, I couldn't find the exact space. So what I did was I redirected, but I was still unsuccessful. I can't remember exactly how many times I would have redirected.
Can I ask you when you say 'redirect' what do you mean by that?---So I usually take the initial spinal needle out and – the spinal needle itself has two parts. The inner needle we normally do it once we think we're in the right space, so it's the actual needle itself that I took out. Then I repositioned the introducer and then put the spinal needle in again. Yes.
You have said that you hit bone. What happened? What did you do after ‑ ‑ ‑?‑‑‑So after redirecting I still hit bone. What I did was I proceeded to try the level above, so I put more local anaesthetic, tried at the level above. I experienced the exact same problems, after which I took the needle out and prompt – asked Dr Stephens to take over.
When you say at that point you took the needle out, what – you said - - -?---I took the whole needle out, I placed the needle on the anaesthetic trolley and then Dr Stephens took over from me.
Dr Abeygunasekara was asked about his observation of Dr Stephens when she took over the procedure. He said:
When the doctor took over from you where was the entry that she made?‑‑‑I am not 100 per cent sure as to what level, your Honour.
Right, yes. And you are sure of the sequence of events for your needles though: 4-5 and then 3-4?---Yes, from my memory.
That is your memory?---Yes, that is my memory.
And are you able to identify the note that you said you made?---I remember documenting the drugs, and I know Dr Stephens made a note after of everything that had happened on behalf of myself and her.
Right. So you didn't make an independent note, other than to deal with the drugs?---Yes.
In cross-examination, counsel for the plaintiff asked Dr Abeygunasekara about how many times he had “redirected” the spinal needle. He gave the following evidence and explained redirection:
I just want to go back to the start of the first procedure that you performed, and that was at L4-5, and can you tell his Honour how you – presume that was at L4-5. What did you do?---Yes, so we – I initially felt the iliac crests, which are the tips of your pelvic bones, which correspond to level L1-L2 and I proceeded to feel down from there to find what level L4-5 was.
And tell me if this is incorrect, but it is pretty basic anatomy. You find L1 and then you literally count down?---Yes.
And that is what you did?---Yes.
So you started at L4-5 and is that where you put the anaesthetic, at L4-5?‑‑‑So I didn't put the anaesthetic because I was not successful in – I mean, the local - - -
Sorry, the local?---The local - - -
HIS HONOUR: No, I think the question was about the local anaesthetic?‑‑‑Yes, yes. At that level, yes.
MR RICHARDS: So you find it and then you put the local where you are going to put the needle?---The spinal needle. Yes, that's right.
And then you – as I understand your evidence, you insert – pushed the introducer?---Sorry, say that again?
Pushed the introducer in?---After the local.
Yes?---So I initially put the local anaesthetic in, take the local anaesthetic needle out and then I put the introducer in initially, yes.
And then once you have got that in place you then get the needle and push the spinal needle through - - -?---That's right.
To try to find the space?‑‑‑That's right.
I just wanted to ask you this. You said you made a number of attempts but you didn't give a number and if you can't remember, you can't remember but was it three, four, five, six attempts? This is just at L4-5?‑‑‑You mean how many times I would have redirected the needle?
Yes?‑‑‑I can't remember how many times.
Are you able to say – this is an important issue for the court?‑‑‑Yes.
Are you able to say it was more than one?‑‑‑Yes.
Would it be more than five?‑‑‑No.
Somewhere between – would it be more than two?‑‑‑Usually two or three times would be my standard practice.
That's a redirection. So you haven't moved the introducer?‑‑‑So I move the – it's the introducer that I redirect. I take the spinal needle out, then I redirect the introducer.
So when you take it out, do you pull it right out?‑‑‑Completely out.
So you're literally holding it free?‑‑‑Yes, I'm holding it out – outside the patient's body, yes.
Are you doing that with your right hand?‑‑‑I take the spinal needle out with my right hand, redirect the introducer with my left hand.
So for each of these two or three times - - -?‑‑‑Yes.
- - - if that's what happened - - -?‑‑‑Yes.
- - - you then – you've got the needle out with your right hand and you're holding the introducer and you're moving it up, down, left, right to try to find the space?‑‑‑Not to find the space but to redirect essentially, yes.
HIS HONOUR: Doctor, it may be a very important bit of this case and I just want to see whether we can get any more clarity from you?‑‑‑Yes, your Honour.
I think you said two or three was your practice. Can you do any better than that in terms of memory? I don't want to - - -?‑‑‑Yes.
I'm not suggesting you can or can't. I'm just - - -?‑‑‑I wouldn't be comfortable connecting to an exact number, your Honour. I have – my standard practice in terms of what I do is every redirection is done with the feedback we receive from the initial attempt. So we redirect thinking that we're either hitting bone because we're hitting a spinous process, in which case I'd redirect up or down, or if I'm hitting what you call a transverse section, which is the bones on either side, I'd redirect either what we call medial - - -
But that's why you do it?‑‑‑Yes.
But can you be any more precise on this occasion - - -?‑‑‑Yes.
- - - whether you did two or three redirects when you were dealing with L4‑L5?‑‑‑I'm not 100 per cent sure, your Honour.
MR RICHARDS: Can I ask this question? Is it possible that you would have - because you weren't successful. Is it possible you could have done five?‑‑‑No. I would not redirect that many times.
Good. Thank you. Is it possible you may have done four?‑‑‑It is possible, yes.
So your evidence then as I understand it, it would be, your usual practice, two or three, up to a maximum of four times?‑‑‑Based on the feedback I received, yes. Yes.
HIS HONOUR: The feedback which you are there talking about is the feedback from what the feel of the patient is?‑‑‑Yes, your Honour.
Right. Not feedback from any other person?‑‑‑Sometimes – in this case, I can't comment. Sometimes a patient will tell you that they feel the needle on the right side, which is something I ask, and that will – that's valuable feedback in terms of how I redirect.
Yes. So that's feedback from the patient?‑‑‑Plus – yes, yes.
Yes. And you don't remember any feedback from the patient?‑‑‑I don't remember, your Honour, no.
With regard to the L 3/4 space, Dr Abeygunasekara then gave the following evidence:
When you moved levels, when you moved up to L3-4, similar questions to the last occasion, how many times did you redirect or attempt to redirect before Dr Stephens took over?‑‑‑I can't remember exactly how many times.
Would it be similar to your last evidence, your usual practice is up to two to three times but it could have been up to a maximum of four times?‑‑‑It's hard for me to say but I would not redirect – usually not redirect more than a couple of times.
I just want to be clear on that because your evidence with the other level ‑ ‑ ‑?‑‑‑Like I said, I'm not sure exactly how many times I redirected.
And again I'm not trying to be difficult but up to a maximum of four times?‑‑‑Yes.
You'd accept that. You would only redirect up to a maximum of four times?‑‑‑Yes, usually.
You're redirecting because you're trying to find the gap?‑‑‑The space, yes.
The space to get through so you can use the anaesthetic?‑‑‑Yes.
So would you accept that with the both levels together, you may have redirected up to a maximum of eight times but possibly – I mean - - -?‑‑‑Yes.
- - - we're trying to do the best we can with something that happened a couple of years ago?‑‑‑I understand, yes.
But your usual practice would be somewhere between four and six times, both of them together?‑‑‑Usual practice would be, if I do fail at one level, I'd try at another level and redirect.
I don't think I made myself clear. The total number of redirections at both levels based on your earlier evidence would be a total number of between four, so between two and three on each, and six, three on each, and up to a maximum of eight times, maximum four at L4-5 and a maximum of four at L3-4, is that - - -?‑‑‑That is my usual practice. I've never had to redirect more than that, yes.
Dr Abeygunasekara was not asked about the extraction of the broken needle nor the shape of the needle upon its extraction.
Dr Stephens
Dr Stephens gave an account of the transaction which differed in material respects to that of Dr Abeygunasekara.
Dr Stephen’s evidence was to the effect that her colleague Dr Abeygunasekara had commenced at the L 3-4 level and had been unsuccessful and then tried the lower level at L4-5 and was again unsuccessful. Dr Stephens explained:
So I had also scrubbed so that I would be ready to help. Dr Abeygunasekara. was, at that time, a junior trainee so we had looked at Ms Fuller and noted that the BMI is a little bit higher and that can be a marker for difficulty with spinal’s so I was also scrubbed just in case I needed to help. So at that point, I went up to Ms Fuller and I said “Is it okay if I try ?”
Dr Stephens could and did observe the difficulties that Dr Abeygunasekara had. It was clear to her that he was meeting resistance. When the spinal needle was withdrawn by Dr Abeygunasekara it was put down on a sterile tray. No abnormality in the spinal needle was apparent at that point. Dr Stephens gave evidence as follows:
So, what happened next?---So, I had the introducer in the back and I started introducing the spinal needle and you – with practice you know how far you’re protruding at the end and I went slowly, slowly, slowly in and I felt like things were going well and I was getting deeper than Dr Abeygunaseara had gone. I expected her space, her spinal space to be 7 or 8cm but I’m always prepared for it to be earlier so we always go slowly. So slowly, slowly, slowly and I got to the full depth of the needle and thought, maybe. So, I took out the stylet to see if there was any fluid coming back. Because I thought maybe I was in the right spot, but I really wasn’t sure. And sometimes you’re in the right spot. So, I took out the stylet and went, ‘Mm-mm.’ And I waited to see if any spinal fluid came back and it didn’t. So, I pulled out the whole introducer and spinal needle and when I pulled it out I immediately realised that half wasn’t there and I was surprised.
Dr Stephens then gave the following evidence:
What did you do next?---I immediately took my hands and put them on Mrs Fuller’s shoulder and said, ‘I need you to hold really still’. I also – I was very fortunate in that everybody in the theatre was very experienced with spinal anaesthetics. I had held up the needle with half of it missing and everybody’s eyes got very big. And I said to Bronwyn, ‘Look, I’m really sorry but half of the needles has broken off and it’s still in your back. We are going to fix this. We’re going to make it better. I need you to hold really still. Are you in pain?’ and she said, ‘No’. And I said, ‘We will get somebody to fix this for you as soon as we can. I need you to hold still but if you feel really dizzy I want you to lie down on your left side so that in that particular theatre the anaesthetic machine is toward the patient’s left. So, I said, ‘If you feel faint, let’s lie you down on your left side so that your head is toward the anaesthetic machine if we were to need that.’ But she said she was okay. And then I – it was amazing, people were so helpful. The midwife came over, the scrub nurses came over. The obstetrician came over. Everybody was doing absolutely everything they could to help. I went out of the theatre to see if I could find a neurosurgeon.
Within a very short time, 15 minutes or so, Dr McDowell, senior neurosurgeon, attended on Mrs Fuller and after further local anaesthetic was administered, proceeded to “make a little cut” where Dr Stephens had indicated “that hole” to Dr McDowell when he asked “exactly where is it?”. The process followed was that slightly bigger cuts were made as Dr McDowell went deeper and deeper to locate the broken spinal needle. Dr McDowell found the broken spinal needle and was able to carefully pull it out. The wound was then sutured at a deep depth and then at the skin level.
Dr Stephens took note of the broken spinal needle and described it as having broken roughly in the middle of its 80mm. It was more or less in a straight line but if you looked at it very closely you could see it was just a little bit frayed where the spinal needle was bent. Dr Stephens was not cross-examined on this factual observation.
The spinal needle was not in evidence and Dr Stephens did not know what became of it except that its manufacturers unique number was recorded in the hospital records.
Dr Stephens was firm in her evidence that the spinal needle had been extracted from level L4-5.
Dr Stephens wrote in the hospitals records later that day at 16:35 hours in manuscript of which the following is a typed version:
L Stephens Anesthesia
Attempted spinal: MA→L5
Sitting midline aseptic
Choloraprep & D/C
Lig to skin ~ L3/4
24g Sprottle ~ L3/4 => Bone
L4/5 MA then LS => Bone
Attempted to remove spinal needle and withdrew introducer & needle
Immediately noted ~ 4cm of needle left in back
No paresthesia w/ any of this
Immediately informed px & partner of events & need for immobility
Contacted Dr David McDowell, neurosurgical consultant on call
He attended quickly
More Local to back 2% lignocaine w/ adrenaline ~ 10 + 3 ml
He removed remainder of needle and sutured wound.
Events discussed & plan for GA w/ px agreement
Under cross-examination, Dr Stephen’s evidence was that she saw Dr Abeygunasekara commence the procedure at L3/4 and make one redirection at that level and then move to L4/5 where he again attempted the spinal anaesthetic. He did not make any redirection at L4/5 and at this point withdrew the spinal needle laying it on a sterile surface for Dr Stephens to take over the procedure. Dr Stephens did not observe Dr Abeygunasekara improperly withdraw the needles from Mrs Fuller’s back in such a way as to let the spinal needle slide within the introducer.
In further cross examination, Dr Stephens denied the suggestion that she had taken over from Dr Abeygunasekara in different circumstances. The suggestion made to her was that she could not recall the details of the particular procedure and that, in fact, Dr Abeygunasekara had the introducer and needle in place when he was struggling at the L4/5 and that he stepped back at that point and she [Dr Stephens] then walked up and attempted the procedure when the needles were already in place.
When Dr Stephens was asked why, after Dr Abeygunasekara’s unsuccessful attempts which could have weakened the spinal needle, she did not change the spinal needle for her own attempt, Dr Stephens informed the cross-examiner that she had never seen or heard of a spinal needle breaking.
Findings in respect of the administration of spinal anaesthetic
The parties were not agreed as to which narrative of events should be accepted. Where the evidence of Dr Stephens and Dr Abeygunasekara is in conflict, I prefer the evidence of Dr Stephens. I do so for a number of reasons. First, Dr Abeygunasekara acknowledged he did not have a complete recollection of his involvement with Mrs Fuller. He expressed this using different phrases. His evidence extracted at paragraphs [20]-[24] above is instructive as to his memory and contains some of these phrases. Second, he was relatively inexperienced in anaesthetics at that point in his career and I did not have full confidence that he was not simply trying to advance the narrative by some reconstruction as to what would have happened in what must have been a confronting occurrence. Third, he made no relevant notes on the day or afterwards upon which he could draw concerning the procedure undertaken. Fourth, it is unlikely that he tried to “redirect” the spinal needle many times at the two locations whilst under the direct supervision of Dr Stephens. Fifth, on the other hand, I derived confidence from the way in which Dr Stephens gave her evidence as to the narrative of the events. I have taken into account a suggested internal conflict in her account at trial between her written hospital note at 16:35 hours and her evidence at trial where that evidence omits a reference to “bone”. Sixth, I also take notice of the hospital note which she made on that day and the fact that Dr Stephens was able to point out accurately to Dr McDowell the place where the needle was to be found.
As a general matter, I have no doubt that Dr Stephens would have been alert to apparent errors of judgement made by Dr Abeygunasekara and corrected them, if at all possible, and otherwise commented upon them. I also have no doubt that Dr Stephens would also have been alert to Dr Abeygunasekara using excessive pressure to force the needle towards the spinal column if the needle encountered resistance. I fully appreciate that an observer, even a metre from the actor, cannot tell, with precision, what force and pressure the actor is using but I find that Dr Stephens did not, at least, detect excessive pressure being used.
I make the following findings:
(a)Dr Stephens and Dr Abeygunasekara agreed on the method of administration, the drugs to be used and the equipment to be used.
(b)Dr Abeygunasekara prepared Mrs Fuller for the administration by cleaning the administration site and administering local anaesthetic.
(c)Dr Abeygunasekara first attempted the procedure on Mrs Fuller at L3/4 using an introducer of approximately 20mm in length and a spinal needle of approximately 80mm in length. There was resistance encountered, probably from a bony structure. Dr Abeygunasekara then withdrew the spinal needle so that it did not protrude past the introducer and then “redirected” the introducer and made a further attempt at the procedure at this level.
(d)Dr Abeygunasekara withdrew the introducer and the spinal needle.
(e)Dr Abeygunasekara, after applying further local anaesthetic to the skin, attempted the procedure on Mrs Fuller at L4/5. Dr Abeygunasekara encountered resistance probably of a bony structure.
(f)Dr Abeygunasekara withdrew the introducer and spinal needle.
(g)Dr Abeygunasekara placed the introducer and spinal needle on a sterile surface.
(h)At this time, upon inspection, there was no apparent damage to the spinal needle.
(i)Dr Stephens then made an attempt at the L 4/5 level. During the course of this attempt the spinal needle “hit bone”. Dr Stephens was uncertain as to whether the spinal needle ended up in the correct position but the lack of fluid draining back through the spinal needle caused her to withdraw both the introducer and the spinal needle.
(j)There is no evidence that either Dr Abeygunasekara or Dr Stephens withdrew the introducer and the spinal needle in an improper manner.
(k)The spinal needle had broken at about its midpoint of the 80mm. It was recovered by Dr McDowell at the point where Dr Stephens had indicated “a hole” to Dr McDowell.
(l)There is no suggestion that Dr McDowell’s contribution was other than both timely and appropriate.
(m)The part of the needle extracted by Dr McDowell was straight and not deformed in the manner of a hook. (I have set out my reasons for this finding below.)
(n)Mrs Fuller went on to have a general anaesthetic and then gave birth to a healthy daughter later that day. Dr Stephens and Dr Abeygunasekara administered the general anaesthetic and care for Mrs Fuller during the caesarean section procedure. Dr Stephen’s note, set out above at [33], was written whilst Mrs Fuller was still under general anaesthetic.
Shape of needle upon extraction
The finding made in paragraph [39(m)] above requires the resolution of additional facts and an explanation of how I have dealt with a lack of cross-examination on issues of fact.
The parties have competing theories as to the mechanism whereby the spinal needle broke into two pieces in the course of the procedure. The shape of the broken spinal needle upon its removal is integral to those theories.
When it was found that the spinal needle had broken off and part of it remained in Mrs Fuller’s spine, Dr Stephens informed Mrs Fuller of that event and emphasised the need for her to remain immobile. Mr Fuller was promptly brought into the theatre and “asked to sit in front of Mrs Fuller to give her some moral support while we were waiting for the neurosurgeon to come”. Understandably, Mrs Fuller was in a very high state of anxiety if not terror. She said to her husband at that time “I don’t want to be in a wheelchair”. Mrs Fuller said in evidence that “it felt like I was there a lifetime” before her husband came in and joined her. Mr Fuller comforted his wife at this time.
Mr Fuller in his evidence said “so I go around to Bronwyn, she’s absolutely petrified. There is no sort of movement from her. She’s like, how you would put it, like frozen”.
Mr Fuller gave the following account of his observation as to the broken portion of the spinal needle as follows:
And so, did you witness the surgery to cut the needle out?---Yes, if Bronwyn was on one side – I was on the side Bronwyn’s legs were on, you know, comforting her, as you do. And then the gentleman was there - - -
Around her back though?---The gentleman was there on the other side of the bed. So, Bronwyn was sitting here, while I’m standing, and he was just there doing what he had to do.
So you couldn’t see the wound or the incision?---Oh, you know, from time to time you just poke around and just see but it just looked like a cut, so.
And it didn’t take long?---For him to cut it out and that, oh, maybe 15 minutes from start to finish. The only thing I noticed was when he had his instruments, they had like a little bowl – a green bowl I think it might have been from memory – and you could see the little bit of broken needle there, so.
So you saw the broken needle?---Yes, after it was removed.
Tell his Honour what it looked like?---I always – it was like a banana but, you know, I think I may have said it looked like a fish hook. So it was just like a curved - - -
HIS HONOUR: And will that be in evidence?
MR RICHARDS: We don’t know where it is. No, it won’t be in evidence – not that I’m aware of.
THE WITNESS: So the easiest way I could explain it is if you get some soft gauge wire and push it at a wall, like at a flat surface, and it starts to bend up, and then you take the pressure off, that’s what it looked like.
MS McCARTHY: Sorry, objection, your Honour.
HIS HONOUR: I think the witness was giving his explanation for what he saw in terms of wire on a farm, but I think it’s of value and I think it’s admissible.
So, just complete your answer. You said if you had soft gauge wire and you press it against and it stands to bend - - -?---Yes, take the pressure off.
You were up to that part?---Yes, so you take the pressure off and that was the sort of radius of the curve is what it looked like, so.
Mr Fuller was not cross-examined on this evidence.
There was a call for the broken spinal needle by the Plaintiff. The spinal needle was not produced. I am satisfied, on the evidence, that the broken spinal needle was disposed of in the ordinary course of the hospital’s business under its policies as to medical waste.
As recorded above, Dr Stephens gave evidence that the extracted broken section of the spinal needle was straight. However, she was not cross-examined on this evidence either.
The defendant did not call Dr McDowell as to the fact of the condition of the spinal needle upon his removal of it from Mrs Fuller.
The rule in Browne v Dunn has its origins in the late nineteenth century and it is well known. It has a number of dimensions which are generally magnified in a proceeding tried without the parties exchanging affidavits or written statements of witnesses ahead of the hearing.
Generally, a witness is entitled to deny the challenge to his or her evidence on oath and give such explanations as he or she can to justify his or her impugned statements or otherwise explain or qualify those statements. Ordinarily, when a witness’ evidence as to a fact is challenged, it is open to the party calling the witness to seek out and put before the court corroborative evidence as to that fact in dispute. Without a challenge being made to the witness’ statements, much is lost to the trial process.
This trial process is intended to give both parties a reasonable opportunity to contest a dispute as to fact. Potentially, the tribunal of fact will be better placed to make a finding as to that fact when all the relevant evidence is available to it and the quality of that evidence has been tested.
As to the current fact in issue, there are two persons who gave evidence as having seen the extracted spinal needle. Neither was cross-examined. Dr Abeygunasekara was not asked about it but I have no evidence that he did or was able to make any observation of the extracted spinal needle. Dr McDowell was not called. Counsel submitted that “squarely to the principle in Jones v Dunkel and that is that the unexplained failure of a party to call a witness or adduce evidence can …can support an inference that the evidence would not have assisted”.
I am not prepared to draw such an inference. I accept that the failure to call Dr McDowell (as to this fact in issue) was an oversight by the defendant in the preparation for the trial and in the running of the trial. In the circumstances of this trial, I am unable to conclude that his evidence would not assist the defendant.
I am left with two accounts of the shape of the spinal needle. Neither witness was cross examined. I prefer the evidence of Dr Stephens to that of Mr Fuller on this issue. First, I regard the two witnesses as not having the same nature and extent of the opportunity to observe the fact. Second, although I regard Dr Stephens and Mr Fuller to be both under stress at that moment when the broken spinal needle was extracted, I regard Dr Stephens’ observation made at that time to be less influenced by that stress. As a doctor she was in her own familiar environment and watched closely while another doctor extracted the broken spinal needle. Mr Fuller was engaged in caring for his wife who was, as I have said above, in a very high state of anxiety if not terror.
Identification of the law to be applied
The parties were agreed that the Civil Law (Wrongs) Act 2002 (ACT) applied to the proceedings and that sections 42 to 44 were engaged in a determination of negligence. These sections are as follows:
42 Standard of care
For deciding whether a person (the defendant) was negligent, the standard of care required of the defendant is that of a reasonable person in the defendant’s position who was in possession of all the information that the defendant either had, or ought reasonably to have had, at the time of the incident out of which the harm arose.
43 Precautions against risk—general principles
(1) A person is not negligent in failing to take precautions against a risk of harm unless—
(a)the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and
(b)the risk was not insignificant; and
(c)in the circumstances, a reasonable person in the person’s position would have taken those precautions.
(2) In deciding whether a reasonable person would have taken precautions against a risk of harm, the court must consider the following (among other relevant things):
(a)the probability that the harm would happen if precautions were not taken;
(b)the likely seriousness of the harm;
(c)the burden of taking precautions to avoid the risk of harm;
(d)the social utility of the activity creating the risk of harm.
44 Precautions against risk—other principles
In a proceeding in relation to liability for negligence—
(a)the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible; and
(b)the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which it was done; and
(c)the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in relation to the risk and is not of itself an admission of liability in relation to the risk.
Counsel for the plaintiff, in written submissions, identified the risk of harm for the purposes of s 43(1) as “The risk is the risk of injury. The risk of injury is caused by a broken needle”. Counsel continued: “The question is therefore was there a risk that the spinal needle may break and cause an injury foreseeable.”
As to whether this risk was foreseeable, counsel relied on the well-known passage from the High Court’s decision in Wyong Shire Council v Shirt (1980) 146 CLR 40, 47.
A risk of injury which is quite unlikely to occur, such as that which happened in Bolton v Stone may nevertheless be plainly foreseeable. Consequently, when we speak of a risk of injury as being “foreseeable” we are not making any statement as to the probability or improbability of its occurrence, save that we are implicitly asserting that the risk is not one that is far-fetched or fanciful. Although it is true to say that in many cases the greater the degree of probability of the occurrence of the risk, the more readily it will be perceived to be a risk, it certainly does not follow that a risk which is unlikely to occur is not foreseeable.
Counsel drew attention to the fact that the ACT Court of Appeal had recently endorsed that passage in Cornwell v Jenkins as Trustee for the iSpin Family Trust [2020] ACTCA; 215 ACTLR 233 at [26] as applicable in the Civil Law (Wrongs) Act 2002 (ACT) setting.
I find that the risk of the spinal needle breaking during the administration of a spinal anaesthetic and causing harm was foreseeable. Although a very rare event, the available medical literature directed to this occurrence documents it. Dr MacPherson and Dr Liyanagama, who gave opinion evidence at trial on the proper practices of anaesthetists, both knew of the fact that spinal needles have broken in the past. Dr Abeygunasekara gave evidence that he was aware that spinal needles have broken in the past.
Counsel next submitted that the precautions to be taken, as referred to in s 43 of the Act, will be precautions directed to minimising the risk of breakage of the spinal needle during a spinal anaesthesia. By final address, there was only one precaution to be taken. That precaution was to discard the spinal needle after unsuccessful attempts to administer the anaesthetic and recommence the procedure using a fresh spinal needle. It was common ground that the use of a fresh spinal needle would not amount to a material financial cost and that fresh spinal needles were conveniently available.
The plaintiff’s submission was based on apparent science. A very thin needle pushed against bone or tough ligamentous tissue would bend the needle and, even if it did not break at that point, it would make it less resilient to further force such that, at some point, it could be liable to break when sufficient additional force was applied.
Dr MacPherson and Dr Liyanagama agreed with this process of reasoning although saying they based their opinion simply on what they understood to be the physics of the situation.
The precise mechanism of how the spinal needle broke cannot be known. There are hypotheses which the evidence does not positively exclude.
On the facts as I have found above, I have concluded that the most likely explanation for the broken spinal needle was that Dr Stephens hit bone or hard ligamentous material in seeking to insert the spinal needle. Alternatively, the now bent or deformed spinal needle broke when it was pulled back through the introducer by Dr Stephens. Doctors MacPherson and Liyanagama both agree that the spinal needle was at least bent in the process of its insertion. Prior to its insertion, it will be remembered, the spinal needle did not have any obvious damage to it as a result of Dr Abeygunasekara’s three attempts.
The above analysis focuses attention on three aspects. Whether Dr Stephens should have changed the needle prior to her attempt to administer the anaesthetic. Whether Dr Stephens used excessive force herself in attempting to administer the anaesthetic. What are the other explanations for the occurrence and their probabilities. To this third matter, the analysis undertaken in Bradshaw v McEwans (1951) 217 ALR 1 at 5 is apposite but does not arise on the facts of this case.
I reject the submission made: that there are a finite number of causes of a broken spinal needle and that each cause is attributable to negligence for the reason that if standard anaesthetic guidelines are followed, the fracture of spinal needles should not occur.
In my opinion the most likely cause of the breaking of the spinal needle, is set out at paragraph [64] above.
Although there are several other possible causes, one of which is a metallurgical defect in the manufacturing process of the spinal needle which is given a manufacturer’s needle reference number for its identification, the probability of each of these possible causes is low and when accumulated, the probability is still low.
What I have found as the most likely cause accounts for the overwhelming percentage of the probability for the occurrence of the broken spinal needle. I have already found that there is no evidence that either doctor withdrew the spinal needle and introducer in other than a proper manner.
I have found that in the circumstances, the evidence gives rise to a reasonable and definite inference of the cause of the breaking of the spinal needle. I also believe that there is sufficient material available to make a reasonable decision. See Ho v Powell [2001] NSWCA 168; 51 NSWLR 572 at [14].
The plaintiff makes a case that the precaution which should have been given in accordance with s 43 of the Civil Law (Wrongs) Act 2002 (ACT) was to change the spinal needle after its use by Dr Abeygunasekara. This matter has to be assessed in the context of the requirements of that section.
The risk of harm was foreseeable and that risk was not insignificant. The issue for determination is whether an anaesthetist (with the attributed characteristics) would have taken the precaution of changing the needle in the circumstances which existed.
In Dr Stephens’ case, she was unaware of the possibility that a spinal needle may break during the procedure. I find that Dr Stephens ought to have been aware, from the literature available to her profession and from her learning and training in her profession, of the possibility that a spinal needle may break or deform when subjected to resistance. I also have regard to the physical characteristics of the spinal needle itself and the fact that an introducer is deployed as part of the spinal needle administration.
Dr Liyanagama explained the cause of the apparent fragility of a spinal needle:
WITNESS LIYANAGAMA: The spinal needles come - the spinal needles are deliberately fine in order to reduce the risk of post-dural-puncture headaches. So the - if I may, the bigger needle used the stiffer it is but the larger risk of headache. So we choose the smallest needle we think we can and the smaller needles, the introducer becomes necessary because the needle is so fine that to not use an introducer it will deform just going through the skin. So by their nature they are unfortunately prone to deformation even under routine use.
The circumstances in which a decision whether to replace the spinal needle were:
(a)Dr Abeygunasekara had made three attempts to insert the spinal needle and had probably encountered bone on each occasion.
(b)Dr Stephens had not detected excessive force being used by Dr Abeygunasekara in these attempts.
(c)Dr Stephens made one attempt. Her evidence, which I accept, was that she approached her task in a gentle manner although hitting bone.
(d)Further spinal needles were readily available for use at an immaterial cost.
(e)It was known to anaesthetists that spinal needles deform or break during the procedure.
(f)There are no statistics kept on how often a spinal needle breaks. In an article from the Journal of Clinical Anaesthesia: Caroline Martinello MD et al, ‘Broken spinal needle: case report and review of the literature’ (2014) 26 Journal of Clinical Anaesthesia 321-324, tendered in evidence, the authors restated one estimate of breakage being reported in another published (2006) article of 1:5,000. The authors then gave an approximate incidence at their own hospital at the University of Texas as being three cases of broken spinal needles in the past 20 years, giving an approximate incidence of 1: 11,000.
(g)The evidence before me is no clearer than the expressions “rare” or “very rare”. (I leave to one side here and do not include scientific reports where microscopic analysis of the tip of the spinal needle has been damaged to some extent.)
(h)There is more chance of hitting a bone, bony object or perhaps a tough ligamentous object in the case of an obese person but obesity itself does not increase the risk of breakage.
(i)Dr MacPherson and Dr Liyanagama both agreed that a first anaesthetist could run into bone and weaken the needle and then a second anaesthetist using the same spinal needle at perhaps a different spot could carry out his or her task perfectly according to professional standards and yet the spinal needle could still break.
(j)Dr MacPherson and Dr Liyanagama agreed that repeated use of a needle for multiple attempts where it hits a bone would mean, as a matter of simple engineering, that it may weaken.
Whether to replace spinal needle in the circumstances
This issue was addressed in the conclave directly:
HIS HONOUR: But doctor, the problem with that from a lay point of view is multiple attempts. Now, is there any standard in the anaesthetics industry in good practice what multiple attempts means and whether there should be or should not be more than one, two, three, four or five, and what does it depend upon? So if I could ask you, Dr MacPherson, first.
WITNESS MACPHERSON: Well, it's a very - - -
HIS HONOUR: You understand what I'm trying to get at? I'm happy to take the engineering and the physics of a needle weakening because it's been pressed into bone numerous times, for example.
WITNESS MACPHERSON: Yes.
HIS HONOUR: And that increases the chance of it breaking on the next occasion.
WITNESS MACPHERSON: Correct.
HIS HONOUR: But I need to get a handle on what is the proper practice in your field of the well-trained and expert anaesthesiologist in administering this anaesthetic to this lady's spine and I need to have some sort of understanding of what would be good practice and what would be bad practice.
WITNESS MACPHERSON: Your Honour, can I just clarify, are you asking me how many attempts with the one needle should be seen as a reasonable number?
HIS HONOUR: Yes. Well, firstly the one needle. I think we're going to focus on the one needle because that's what happened here.
WITNESS MACPHERSON: Yes.
HIS HONOUR: And then of course there's even a further complication to this because obviously the amount of pressure you put on the needle against any given bone would vary in intensity so that a person who was delicately trying to thread this needle through the spine may have a lesser pressure than a person who was pushing it through with harder pressure. Now, what I have to come to and I have to make some decision about this is: what is the proper practice of that position? Now, it may not be just the sheer number of attempts, it may be a combination of the number and the pressure. Because I'm just thinking from a lay point of view with a bit of engineering and a bit of physics that you learn at high school.
….
HIS HONOUR: Is there a standard that I can work from that is the standard that would be used by highly skilled professionals doing an anaesthetic in accordance with good and proper practice on those questions?
WITNESS MACPHERSON: Well, your Honour, I would say it's a difficult one to answer. To my understanding, there's nothing in the guidelines that specifically says you should only use the one needle for one attempt or two attempts or N attempts. I mean, they’re - I mean it sounds silly but let's say, you know, 10 attempts with the one needle would be beyond the pale. That would be, you know, excessive use but two or three attempts would not be; that's quite reasonable.
So somewhere in the middle is where a person would be thinking - especially if, you know, you have actually hit bone on a number of occasions and you pull - you know, you examine the needle and if there's no obvious cause of deformity then a lot of people would continue on for four or five attempts. Then there's - so there's a grey area in the middle. To do seven or eight or nine attempts with the one needle I don't think would be good practice but it's perfectly good practice to do one, two, three or four and then there's a grey area in the middle that's difficult to say.
HIS HONOUR: Let me ask your colleague.
Do you agree with that or do you have any - - -
WITNESS LIYANAGAMA: I think that's a very elegant answer, your Honour, I can't improve on. I can't add anything to that.
HIS HONOUR: You can't improve on it?
WITNESS LIYANAGAMA: No.
HIS HONOUR: That's very good. Now, of course the subjective factor of exactly how much pressure that any given attempt is going to have behind it is another factor which you obviously ought to have some concern about but it's very hard to measure, as it were. Have I accurately described it, Dr MacPherson, that it's hard to know?
WITNESS MACPHERSON: Yes.
HIS HONOUR: For instance, you know - - -
WITNESS MACPHERSON: Yes, certainly.
HIS HONOUR: The logic of six attempts would be different if it was a gentle or soft means versus a pretty significant attempt to press through the ‑ ‑ ‑
WITNESS MACPHERSON: Correct, correct.
Although there was no precise consensus on this between the two doctors in the conclave, it was clear enough that as the number of attempts rose to about seven or more and the degree of pressure exerted was not known with precision, both doctors would regard changing the spinal needle at that time as being consistent with good practice of a specialist anaesthetist. This factual scenario was relevant to the narrative given by Dr Abeygunasekara.
Another matter which requires evaluation is the likely consequence of a broken spinal needle. Dr MacPherson gave evidence that this will be determined by two factors. The first is how soon after the event was the problem noticed and when did remedial action occur, and second, where has the remaining spinal needle fragment lodged. He says that fortunately, in most cases the spinal needle fracture is noticed at once and action can be taken to remove it. If this were not the case, the presence of a retained foreign body could lead to infection and granuloma formation. Dr MacPherson continues, that with regard to the site of the retained spinal needle, if it is lodged in fat, subcutaneous tissue or ligaments, the immediate risk of serious consequence is rare. It is only if the spinal needle fragment were to lodge near a nerve or near or within the intrathecal space that more serious events could occur. However, it should be noted that even when the spinal needle has lodged in a part of the anatomy where less harm could be caused, needle migration can still occur, and the spinal needle could move to other more dangerous areas. This is the rationale behind the timely removal of the retained segment.
The expression “likely seriousness“ invites a comparative analysis of likely harm. There is social utility of the activity creating the risk of harm, ie that of administering a spinal anaesthetic appropriate to the proper medical requirements of the patient’s condition.
In my view the plaintiff has failed to prove that the duty owed to her in the circumstances of this case has been breached. I have approached the matter by looking prospectively to what a reasonable anaesthetist in Dr Stephen’s position, (possessing and exercising the ordinary skill required in that profession) and who was in possession of all the information that Dr Stephens either had or ought reasonably to have had, would have done at the time when the harm arose.
In my evaluation, I have placed emphasis on the fact that the risk to be avoided was rare or very rare and, that notwithstanding my finding that Dr Stephens ought to have been aware of the possibility that a spinal needle may break or deform when subjected to resistance, that Dr Stephens acted in the manner accepted as competent professional practice at the time. I have also taken into account those other matters referred to by me above and which are necessary to consider in the framework of sections 42 to 44 of the Civil Law (Wrongs) Act 2002 (ACT).
Additional findings
In case I am found to be wrong in the view that I have already expressed, I make the additional findings in summary form.
Mrs Fuller was 38 years of age at the time of trial. She lived with her husband and two daughters on a 40-acre farm in the Queanbeyan area. At the time of the procedure in 2020 the farm raised chickens in order to sell the eggs. It was a free-range business so far as the chickens were concerned as they lived in a caravan which was moved about the farm from time to time and required the electronic fencing to also be transported and repositioned with the caravan. The small business was run jointly by Mrs Fuller and her husband and required not insignificant work to be done to raise the chickens and also to market the eggs. The work included manual handling and physical movements of the caravan and the fences.
After finishing school and obtaining some employment, Mrs Fuller registered for a security guard course, completed the course and then commenced to work with Chubb Security. At the age of 21 she entered the public service and commenced at the National Library of Australia. Mrs Fuller has worked herself up through government agencies and now works for the Australian Maritime Safety Authority at level VI. Approximately nine months after the birth of her child in February 2020, Mrs Fuller returned to work from maternity leave.
Mrs Fuller has encountered various restrictions in her physical movements which she attributes to damage to her spine arising out of the administration of spinal anaesthetic in February 2020 by the doctors at Canberra Hospital. This has taken the form of an inability to perform her role in and about raising the chickens and marketing the eggs and also has caused her to have difficulty in carrying out her duties and functions as a security officer in the public service. There is also difficulty in carrying out normal household tasks and restriction in what she can and cannot do.
I accept Mrs Fuller’s testimony as to her physical difficulties and the fact that those physical difficulties were not present prior to February 2020. The incident was traumatic and Mrs Fuller suffered physical and psychological injuries as a result of it. Included in these injuries is the additional operative procedure to her spine to extract the needle and its sequela. Her quality of life has been diminished and her plans to have a child by caesarean section, which were important to her, were frustrated. On the basis of the medical evidence, which I accept, it is likely that Mrs Fuller will make a good recovery. However, that is not assured and some amount for future medical and employment contingencies could be made on any assessment. Mrs Fuller’s past medical and employment related matters were proved.
On the issue of Mrs Fuller’s physical complaints her counsel tended the report of Dr Patrick. Dr Patrick’s letterhead described him as a General, Vascular & Trauma Surgeon, Medico- Legal Specialist.
Dr Patrick examined Mrs Fuller at the request of her solicitors via a tele-health consultation on 13 August 2021. This was a consultation caused by the Covid lock down.
Dr Patrick concluded that Mrs Fuller was suffering the on-going problems which arise from a lower limb radiculopathy.
Radiculopathy describes the pain that radiates down the legs and is often described by patients as electric, burning, or sharp. The most common underlying cause of radiculopathy is irritation of a particular nerve, which can occur at any point along the nerve itself.
On 18 January 2022, Dr Gorman, consultant general physician and pain management physician, examined Mrs Fuller at the request of the Canberra Hospital. He concluded that Mrs Fuller does not have radiculopathy. His view was that the psychological effects of the alleged negligence have been responsible for the focus on and perpetuation of the symptoms rather than any physical injury. Dr Gorman believed that Mrs Fuller’s ongoing symptoms are relatively mild and are caused by somatic referral of pain to her buttocks and lower limbs from the surgical scarring with symptoms increased and perpetuated by her anxiety and depressed mood as well as her deconditioning, fear avoidance and hypervigilance to symptoms in the region.
I prefer the evidence of Dr Gorman to that of Dr Patrick. In summary, the conclusions of Dr Gorman based on his physical examination and examination of the medical records accord more consistently with other medical evidence which I have accepted including the likely signs of what would have been observed in the immediate aftermath of the spinal needle striking a nerve and damaging it on 14 February 2020. Dr Patrick was, of course, unable to examine the patient physically through unusual circumstances. However, Dr Patrick was cross-examined before me and I formed the view that he was an advocate for a cause and that, accordingly, his views were less persuasive than those of a dispassionate expert.
That, of course, does not mean that Mrs Fuller would not receive compensation for her physical injuries but that compensation would take into account the likely recovery under that diagnosis.
On the issue of Mrs Fuller’s psychiatric state, only one report was in evidence. Dr Parmegiani was of the opinion that the traumatic event of 14 February 2020 caused Mrs Fuller to suffer from post-traumatic stress disorder. I accept the diagnosis and the suggestions made by Dr Parmegiani for future treatment.
Order
I make the following orders:
(a)The amended statement of claim be dismissed.
(b)Subject to either party applying for a different form of order within 14 days, order that the plaintiff pay the defendant’s costs of and incidental to the proceedings.
(c)Any such application can be communicated to the Associate to the Chief Justice.
| I certify that the preceding ninety-five [95] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Robinson Associate: Date: 22 December 2022 |
Annexure 1
Annexure 2
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