Hartfield v Calvary Healthcare Act Ltd (No 4)
[2025] ACTSC 488
•31 October 2025
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Hartfield v Calvary Healthcare ACT Ltd (No 4) |
Citation: | [2025] ACTSC 488 |
Hearing Date: | 11 September 2023 – 15 September 2023; 14 December 2023 – 15 December 2023; 13 May 2024 – 14 May 2024 |
Decision Date: | 31 October 2025 |
Before: | Baker J |
Decision: | Judgment is entered for the plaintiff in the sum of $118,306. |
Catchwords: | NEGLIGENCE – MEDICAL NEGLIGENCE – where plaintiff suffered ectopic pregnancy – where plaintiff had a history of ectopic pregnancy and miscarriage – where plaintiff discharged from hospital where ectopic pregnancy had not been excluded – where ectopic pregnancy ruptured while the plaintiff was at home – where urgent salpingectomy later performed – where plaintiff rendered unable to naturally conceive NEGLIGENCE – MEDICAL NEGLIGENCE – whether defendant breached its duty of care in failing to perform a diagnostic laparoscopy during the plaintiff’s first hospital admission – where expert evidence was that laparoscopy presents its own risks – where expert evidence suggests likelihood of laparoscopy leading to successful salpingostomy was low – breach of duty and causation on primary case not established NEGLIGENCE – MEDICAL NEGLIGENCE – whether hospital breached its duty of care in discharging the plaintiff while at risk of ectopic pregnancy without providing adequate advice concerning risk of ectopic pregnancy – where plaintiff suffered psychiatric injury – whether contributory negligence – claim established – damages awarded |
Legislation Cited: | Administrative Arrangements 2019 (No 1) (ACT) Civil Law (Wrongs) Act 2002 (ACT), ss 42, 43, 44, 45, 99, 102, 109, 110 Civil Liability Act 2002 (NSW), s 5O Court Procedure Rules 2006 (ACT), rr 1241, 1243 Health Infrastructure Enabling Act 2023 (ACT) Legislation Act 2001 (ACT), dictionary Public Sector Management Act 1994 (ACT), s 13 |
Cases Cited: | AB v Australian Capital Territory [2018] ACTSC 16 Alananzeh v Zgool Form Pty Ltd [2024] ACTSC 16 Alananzeh v Zgool Form Pty Ltd [2025] ACTCA 19 ASIC v Hellicar [2012] HCA 17; 247 CLR 345 Austen v Tran [2023] ACTCA 44 Brandi v Mingot (1976) 12 ALR 551 Dixon v Foote & Calvary Health Care ACT Limited [2012] ACTSC 101 Fuller v Australian Capital Territory [2024] ACTCA 19 Gestmin SGPS v Credit Suisse (UK) Ltd [2013] HWHC (Comm) 3560 Hartfield v Calvary Healthcare ACT Ltd [2023] ACTSC 401 Hartfield v Calvary Healthcare ACT Ltd (No 3) [2024] ACTSC 137 Heron v McGregor (1986) 6 NSWLR 246 Horne v J K Williams Contracting Pty Ltd [2023] NSWCA 58; 104 MVR 1 J and E Vella Pty Ltd v Hobson [2023] NSWCA 234 Jones v Dunkel [1959] HCA 8; 101 CLR 298 Kelly v The King [2024] VSCA 69 Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; 243 CLR 361 Ling v Pang [2023] NSWCA 112 McLennan v Meyer Vandenberg [2020] ACTCA 7 Nominal Defendant v Cordin [2017] NSWCA 6; 79 MVR 210 Onassis v Vergottis [1968] Lloyds LR 403 Read v Burns [2017] ACTSC 184 Rogers v Whitaker [1992] HCA 58; 175 CLR 479 Rosenberg v Percival [2001] HCA 18; 205 CLR 434 S and XT v Calvary Health Care ACT trading as Calvary Hospital and Dr Andrew Foote [2018] ACTSC 84 Smith v Samuels (1976) 12 SASR 574 SSABR Pty Ltd v AMA Group Ltd [2024] NSWCA 175 Strong v Woolworths Limited [2012] HCA 5; 246 CLR 182 Tabet v Gett [2010] HCA 12; 240 CLR 537 The Property Investors Alliance Pty Ltd v C88 Project Pty Ltd (in liq) [2023] NSWCA 291 Vairy v Wyong Shire Council[2005] HCA 62; 223 CLR 422 Wallace v Kam [2013] HCA 19; 250 CLR 375 Watson v Foxman (1995) 49 NSWLR 315 West v Government Insurance Office of New South Wales [1981] HCA 38; 148 CLR 62 Wilkins v Council of the City of Broken Hill [2005] NSWCA 468 |
Texts Cited: | Diagnostic and Statistical Manual of Psychiatric Disorders (American Psychiatric Association, 5th ed, 2013) Explanatory Statement, Health Infrastructure Enabling Bill 2023 |
Parties: | Emily Hartfield ( Plaintiff) Calvary Healthcare ACT Ltd ( Defendant) |
Representation: | Counsel D Toomey SC with D Richards ( Plaintiff) J Morris SC with E Elbourne ( Defendant) |
| Solicitors Maliganis Edwards Johnson ( Plaintiff) ACT Government Solicitor ( Defendant) | |
File Number: | SC 251 of 2022 |
BAKER J:
Table of Contents
Overview
The proceedings
The evidence
The plaintiff’s medical history
The plaintiff’s first admission (the events the subject of the present claim)
Emergency Department examination (10:19am)
MEWS Records
Nurse examination at 10:45am on 31 July 2019
Ultrasound results
2:30pm consultation with Dr Bodulkar
5:00pm – Fentanyl administered
6:00pm – Nursing note
8:10pm – Fentanyl administered
8:30pm consultation with Dr Bodulkar and Dr Menakaya
11:10pm – Fentanyl administered
Nurse examination at 1:45am on 1 August 2019
Nurse examination at 5:30am on 1 August 2019
Nurse examination at 7:15am on 1 August 2019
Nurse examination at 10:10am on 1 August 2019
11:30am consultation with Dr Bodulkar
12:00pm consultation between Dr Bodulkar and Dr Menakaya
12:25pm consultation
Discharge at 1:30pm
The plaintiff returns home
The plaintiff’s re-admission and surgery on 2 August 2019
Subsequent events
The medical evidence concerning the diagnosis and treatment of the plaintiff
The three experts
Associate Professor Izzo’s First Report
Associate Professor Izzo’s Second Report
Dr Lamaro’s First Report
Associate Professor Izzo’s Third Report
Dr Lamaro’s Second Report
Professor Hyett’s Report
The NICE guidelines
The RCOG guidelines
The conclave evidence
The psychiatrists
The admissibility of the oral evidence of Dr Allnutt and Dr Ventura
Relevant legislation and principles
Duty of care
Breach of duty
The relevance of peer professional opinion in determining whether there has been a breach of the duty of care
The application of s 110 of the Wrongs Act (principles about public authorities)
Causation
Contributory negligence
The pleadings
Scope of the duty of care
Breach of Duty
Damages
Findings of fact
Overview
The weight to be given to the evidence of the plaintiff, her sister, the medical personnel and the clinical notes
The plaintiff’s pain levels during the course of her first admission
What did the plaintiff tell medical staff about her pain levels during the course of her admission?
The plaintiff’s pain levels at the time of discharge
What did the plaintiff tell medical staff about her pain levels at the time of discharge?
Did the plaintiff tell medical staff that she believed that she was suffering from an ectopic pregnancy?
What was the plaintiff told about possible diagnoses during the course of her admission?
What was the plaintiff told about the possibility of an ectopic pregnancy at the time of discharge?
Does the plaintiff have a recognised psychiatric illness?
The absence of evidence from the plaintiff’s then husband
The plaintiff’s primary case
Overview
Breach of duty: Should a laparoscopy and/ or a salpingostomy have been performed at any time during the first admission?
Causation
Conclusion
The plaintiff’s alternative case
Outline of the plaintiff’s alternative claim
The defendant’s submissions concerning the plaintiff’s alternative claim
Determination as to liability on the plaintiff’s alternative claim
Damages
Overview
General damages
Future psychological treatment
Past economic loss
Future economic loss
Past out of pocket expenses
Total damages
Costs
Orders
Overview
1․Shortly before 10:30am on the morning of 31 July 2019, the plaintiff, Ms Emily Hartfield, attended what was then the Calvary Hospital in North Canberra (the Hospital). She was five weeks pregnant. The plaintiff had previously had two miscarriages and an ectopic pregnancy (where a fertilised egg implants and grows outside of the uterus, commonly in the fallopian tube), the latter of which had resulted in the loss of the plaintiff’s right fallopian tube. The plaintiff was suffering pain and bleeding, and feared that she may have been suffering from a second ectopic pregnancy. If untreated, an ectopic pregnancy can be dangerous, and can result in death.
2․The plaintiff was admitted into hospital and various investigations were undertaken. The plaintiff was discharged home at around 1:30pm the following day, 1 August 2019. At the time of the plaintiff’s discharge, her diagnosis was a pregnancy of unknown location: neither a miscarriage nor a tubal ectopic pregnancy had been ruled out.
3․The plaintiff’s pain increased whilst she was at home over the evening of 1 August 2019 and into the following morning. The plaintiff returned to the Emergency Department of the Hospital at approximately 6:00am on 2 August 2019. An ectopic pregnancy was diagnosed and the plaintiff was taken into emergency surgery, where she underwent a laparoscopic left salpingectomy (a procedure for the removal of her remaining fallopian tube).
4․The plaintiff seeks damages against the Hospital for negligence. The plaintiff’s primary case is that the Hospital should have performed a laparoscopy (keyhole surgery of the abdomen and pelvis) on her first admission. She contends that a laparoscopy would have revealed the ectopic pregnancy, enabling the performance of a salpingostomy (a procedure for the removal of an ectopic pregnancy from a fallopian tube which does not involve removal of the tube itself). The plaintiff further contends that, if a salpingostomy had been performed, she had a reasonable chance of retaining her natural fertility.
5․In the alternative, the plaintiff contends that the Hospital breached its duty of care to her by discharging her on 1 August 2019, in circumstances where an ectopic pregnancy had not been ruled out, she was still in pain, and where she had not been provided with adequate advice concerning the seriousness of her condition.
6․The plaintiff submits that if she had not been discharged from the Hospital at that time, she would have been in hospital when her pain noticeably increased later that evening. She contends that if she had been in hospital when her pain increased, a successful salpingostomy may have been performed; or, in the alternative, that she would not have sustained psychological injury (namely, Post Traumatic Stress Disorder), which, she contends was caused by the distress and fear which she suffered in the lead up to the emergency surgery that was performed on 2 August 2019.
7․For the reasons outlined below, I am not satisfied on the balance of probabilities that the plaintiff has established that the defendant should have performed a laparoscopy during her first admission. I am also not satisfied on the balance of probabilities that, if such a procedure had been performed, it would have been followed by a successful salpingostomy. Accordingly, the plaintiff has not established liability on her primary case.
8․However, I am satisfied on the balance of probabilities that the defendant breached its duty of care by discharging the plaintiff in the circumstances that occurred (that is, without offering the plaintiff an opportunity to remain in hospital for observation and pain management and without full information being provided to the plaintiff about her condition, and the risk posed by increasing pain). I am also satisfied on the balance of probabilities that this breach caused the plaintiff to suffer both physical and psychological harm. The defendant is liable for the damages caused by this negligence.
The proceedings
9․The proceedings were listed for hearing in September 2023 with a four day estimate. That hearing ultimately extended over five days, and encompassed oral evidence from the following witnesses:
(a)The plaintiff;
(b)The plaintiff’s sister, Madeleine Hartfield;
(c)Wendy Dansby, a registered nurse who attended the plaintiff on 31 July 2019 and 1 August 2019;
(d)Dr Yogesh Bodulkar, the attending obstetrics and gynaecological registrar who examined the plaintiff on 31 July 2019 and 1 August 2019;
(e)Dr Uche Menakaya, the on-call obstetrics and gynaecological consultant who examined the plaintiff on 31 July 2019 and was involved in the decision to discharge her on 1 August 2019;
(f)Associate Professor Louis Izzo, obstetrician and gynaecologist, Dr Vince Lamaro, obstetrician and gynaecologist, and Professor Jonathan Hyett, obstetrician and gynaecologist, each of whom gave medical evidence in an expert conclave;
(g)Dr Stephen Allnutt, forensic psychiatrist, and Dr Antonella Ventura, psychiatrist, who gave evidence in an expert conclave; and
(h)Dr Felicity Brims, the plaintiff’s treating gynaecologist and a fertility specialist.
10․At the conclusion of the first hearing, the parties sought an opportunity to provide written submissions to the Court, and for the proceedings to be adjourned to enable oral submissions to follow the exchange of those written submissions. I acceded to this application and made orders for the filing of written submissions by both parties, and for the hearing of oral submissions on 15 December 2023.
11․In its written submissions, the defendant objected to the plaintiff’s reliance on the alternative case referred to at [5] above. On 13 December 2023, the plaintiff made an application for the hearing of the oral submissions to be vacated. After hearing from the parties on this application, I vacated the hearing and made orders granting leave to the plaintiff to file and serve an Amended Statement of Claim, with an order that costs be costs in the cause: Hartfield v Calvary Healthcare ACT Ltd [2023] ACTSC 401 (Hartfield (No 1)). In brief, I held that whilst the plaintiff’s alternative case was within the scope of the original pleadings, it could have been more clearly articulated, and that the pleadings should be amended to make the alternative case abundantly clear. Senior Counsel for the plaintiff accepted that the defendant should be afforded an opportunity to plead a case of contributory negligence in reply. He also accepted that the plaintiff should be recalled to permit the defendant to cross-examine her about on issues relevant to the plaintiff’s alternative case.
12․The proceedings were listed for further hearing in May 2024 to enable this to occur. Prior to that hearing, I made further rulings concerning the pleadings and the evidence: Hartfield v Calvary Healthcare ACT Ltd (No 3) [2024] ACTSC 137. At the final hearing, the plaintiff was recalled and cross-examined. The defendant also adduced evidence from Dr Yvonne Skinner, forensic psychiatrist, in relation to the plaintiff’s claim for damages relating to her alleged psychological injury.
The evidence
The plaintiff’s medical history
13․The plaintiff, Ms Hartfield, was born on 18 June 1991 and is currently 34 years old.
14․The plaintiff has previously suffered two miscarriages, the first in 2013, and the second in 2015.
15․On 4 November 2015, the plaintiff presented to Calvary Hospital after 17 days of vaginal bleeding, cramping and abdominal pain. She was diagnosed as having an ectopic pregnancy in her right fallopian tube. The plaintiff underwent a laparoscopic (“keyhole”) right salpingectomy (removal of part or all of the fallopian tube). During the laparoscopy, two peritoneal windows and endometriosis were identified.
16․In early 2016, the plaintiff became pregnant with her daughter. The plaintiff subsequently gave birth to her daughter at Calvary Hospital on 9 October 2016.
17․On 24 April 2018, the plaintiff presented to the Calvary Hospital Emergency Department with increasing pain and nausea. The plaintiff underwent a laparoscopic left ovarian cystectomy and a hysteroscopy (examination of the inside of the uterus) on 26 April 2018 to remove a cyst on her left ovary. This surgery was performed without complications.
The plaintiff’s first admission (the events the subject of the present claim)
18․In July 2019, the plaintiff became pregnant, as confirmed by Human Chorionic Gonadotropin (hCG) levels from a blood test requested by her General Practitioner.
19․On the evening of 30 July 2019, the plaintiff began experiencing abdominal pain in her lower left-side abdomen, cramping and spotting. At that time, she had been experiencing vaginal bleeding for six days.
20․The following morning, the plaintiff called her sister, Madeleine Hartfield. Madeleine Hartfield went to the plaintiff’s house, where she found the plaintiff in pain, holding her stomach. The plaintiff immediately drove herself to hospital, leaving her daughter in the care of her sister.
21․At 10:19am, she presented to the Hospital, where she was triaged and examined by Emergency Department staff.
Emergency Department examination (10:19am)
The Emergency Department Records
22․The Emergency Department Records of the Hospital record that the plaintiff presented to the Emergency Department at 10:19am and was assessed as having a triage level of three. The presenting problem is described as “pain - abdo/ pelvis/ perineal”. The nurse assessment record states that the plaintiff was complaining of left sided abdominal pain, that the plaintiff was 5/40 weeks gestation and had vaginal spotting and cramping pain. The record further records that the plaintiff reported a history of a previous ectopic pregnancy and two miscarriages.
23․The first entry in the Patient Progress Notes (the Progress Notes) on 31 July 2019 does not appear to have a time recording. It states that the plaintiff had reported a previous ectopic pregnancy, on the right hand side, which had ruptured and required surgery. The note further states that (i) the plaintiff reported a 5/40-week gestation based on her last menstrual period; (ii) the plaintiff had been bleeding (spotting) for the past 6 days; (iii) the plaintiff had been suffering pain since the previous day, which was “getting worse”; and (iv) the plaintiff was allergic to penicillin and opioids. The note records that the “plan” was to obtain an ultrasound on an “urgent” basis as well as obtaining various blood tests.
The plaintiff’s evidence
24․The plaintiff said that at the time she went to hospital, the pain was “excruciating”, and felt like she was being “stabbed” on the left side of her body. She said that based on how she was feeling and the pain, she thought that she was having an ectopic pregnancy. She said that she told the nurse that she believed she was having an ectopic pregnancy.
MEWS Records
25․The hospital records contain a chart recording the plaintiff’s MEWS (Modified Early Warning Scores) records for the duration of her first admission. That chart indicates that the plaintiff’s respiratory rate, oxygen saturation levels, heart rate, blood pressure and temperature were within normal levels, giving MEWS scores of 0 at each observation throughout 31 July 2019 and 1 August 2019, other than at 10:40am on 30 July 2019 (at which time the plaintiff is recorded as having a temperature MEWS of 1, by reason of a lower than normal temperature). The row for “pain score” (between 0, indicating no pain and 10 indicating worst pain) is not filled out for any entry on 31 July 2019 or 1 August 2019.
Nurse examination at 10:45am on 31 July 2019
The nursing notes
26․In a record entitled “Emergency Department Assessment”, the plaintiff’s presenting problem is described as “lower abdo pain L) hand side cramping spotting 4/40 weeks gestation”. The entry for “Relevant Patient Medical/Surgical History” records “ectopic pregnancy Nov 2015 – removal of R) [right fallopian rube]”. Under the heading “Medication taken prior to arrival”, it is recorded that the plaintiff had taken paracetamol at 7:30am. On a pain scale of six faces ranging progressively from a happy expression to distressed expression, the third face in the sequence is circled.
27․The first entry in the nursing notes was written by Nurse Dansby at 10:45am. That note states:
Pt has self presented to ED with L) Lower abdo pain with onset last evening. Pt has Hx [history] of ectopic pregnancy in 2015 R) tubes removed. Pt has allergies to penicillin and most opioids. Pt is 4/40 weeks gestation. A patent and clear, B spontaneous, RR [respiratory rate] 19, SPO2 [oxygen levels] 100% on RA [room air]. C HR [heart rate] regular 90bpm cap refill C3 sec. D Pt alert and oriented.
The plaintiff’s evidence
28․The plaintiff gave evidence that when she was first seen by a nurse, she told the nurse that she had “experienced two miscarriages before and an ectopic pregnancy, and that the pain that [she] was feeling … like [she] was having another ectopic pregnancy”, although she could not remember “word for word” what she had said.
29․The plaintiff gave evidence that she informed the nurse that she was in “severe pain”. She recalled that the nurse was writing at the time but was unsure whether she noted this down.
Nurse Dansby’s evidence
30․Nurse Dansby did not have any recollection of her interactions with the plaintiff. Nurse Dansby could not categorically state whether the plaintiff at any time told her she was in severe pain; or if she at any time observed the plaintiff in severe pain. However, Nurse Dansby gave evidence that she would have recorded that the plaintiff was in severe pain if the plaintiff had made this statement.
31․Nurse Dansby confirmed that she had filled in the diagram of cartoon faces. She gave evidence that the estimate depicted referred to her observations, rather than the plaintiff’s self-reported pain. She also gave evidence that the third face indicates the patient is “neutral” – that is, not in pain but not happy.
Ultrasound results
32․An ultrasound report dated 11:43am on 31 July 2019 recorded a clinical history of “?ectopic pregnancy. hx of ectopic pregnancy on right + surgery. pain to left lower abdo. 5/40 gestation, no u/s for this pregnancy. ++ pain and PV bleeding.” Under the heading “Findings”, the report states:
The uterus, endometrium and ovaries appear normal. No adnexal masses. A small amount of free fluid is seen in the pelvis. No ultrasound evidence of a [sic] an intra or extrauterine gestation.
2:30pm consultation with Dr Bodulkar
33․At approximately 2:30pm on 31 July 2019, Dr Bodulkar held a consultation with the plaintiff. Dr Bodulkar conducted a physical examination of the plaintiff at this consultation, which included an abdominal examination.
The Progress Notes
34․The Patient Progress Notes, which were written by Dr Bodulkar, record that the plaintiff was “conscious/comfortable” upon a physical examination, that she had “no guarding/rigidity”, “[minimal] tenderness in [left side] iliac fossa”, and that she was stable. The Progress Notes also record a “DD” [Differential Diagnosis] of “Risk/ Ectopic due to past history”; “Ongoing miscarriage” and “PUL” [Pregnancy of Unknown Location].
35․An apparently separate entry (without a time notation) states that “pt complains of [increasing] pain to RIF [right iliac fossa] from 1 hour ago” and that a phone call had been made to the O & G Registrar. The entry also records “[h]e will call anaesthetics for pain review”.
The plaintiff’s evidence
36․The plaintiff recalled Dr Bodulkar discussing the ultrasound, and her beta-hCG levels in this consultation. She also recalled that Dr Bodulkar advised her that it was likely that she was having a miscarriage and that the pain was “likely from an ovulation issue”.
37․The plaintiff initially did not recall any conversation about the risk of an ectopic pregnancy, or any conversations about the prospect of surgery in this consultation. However, in cross-examination, she accepted that she was told generally about the plan for her treatment, including that she should have “nil by mouth” in case surgery was required.
38․The plaintiff denied that she was “comfortable” during this examination. In her evidence in chief, the plaintiff said that during this consultation, she was experiencing severe pain, and she said that she told Dr Bodulkar that this was the case. However, in cross-examination, she stated that she had confused the times, and that she did not tell Dr Bodulkar that she was in pain severe during the first consultation, but just said words to the effect of that she was “coping”. She maintained that she was “curled up”, “in a ball” and that she was “putting pressure on the left side of [her] body”.
Dr Bodulkar’s evidence
39․Dr Bodulkar gave evidence that the notation in the Progress Notes reflected his own observations, rather than anything the plaintiff said. He considered that “signs of discomfort” would include a patient being visibly in pain, unable to provide a medical history, lying down or curling up, using a heat pack or pillow, holding on to a carer, or asking for pain relief. He stated that if these signs are not recorded in his notes, they were not present. He also gave evidence that if the plaintiff had reported that she was in severe pain at the time, he would have recorded this in his notes and would have offered her pain medication.
40․Dr Bodulkar also gave evidence that where a patient presents with abdominal pain and a history of ectopic pregnancy and abdominal pain, the first thing he will check for is the signs of an acute abdomen, such as guarding and rigidity, to determine whether urgent surgery is required.
41․Dr Bodulkar explained that where there is a risk of ectopic pregnancy, an attempt will be made to identify the ectopic pregnancy using an ultrasound. He accepted that the symptoms of an ectopic pregnancy and an ongoing miscarriage overlap, and that the plaintiff’s symptoms were consistent with both diagnoses.
42․Dr Bodulkar stated that he would have discussed the suspicion and risk to patient of an ectopic pregnancy with the plaintiff during this initial consultation. In particular, he believed that, when taking the plaintiff’s medical history, he would have explained that he was doing so due to her history of ectopic pregnancy. He accepted, however, that he did not make a note of this discussion, and that it would have been important to do so. Nonetheless, Dr Bodulkar maintained that he would have discussed the risk of an ectopic pregnancy with the plaintiff.
5:00pm – Fentanyl administered
43․Medical notes record that the plaintiff was given 50 mg Fentanyl at 5:00pm.
6:00pm – Nursing note
44․In the entry for 6:03pm on 31 July 2019, “Nurse Anita” recorded in the nursing notes that the plaintiff had a “MEWS level of 1” (although the MEWs chart records a MEWS level of 0 at this time), and notes that the plaintiff had been given 50mg of Fentanyl at 5:00pm. The note further records that the plaintiff had been “received by O & G” and later, “admitted”. A further sentence is illegible. Nurse Anita was not called to give evidence.
8:10pm – Fentanyl administered
45․Medical notes record that the plaintiff was given a further 25 mg of Fentanyl at 8:10pm.
8:30pm consultation with Dr Bodulkar and Dr Menakaya
46․At 8:30pm, the plaintiff was examined by Dr Bodulkar and Dr Menakaya. At this time, Dr Menakaya conducted a physical examination and a bedside ultrasound. This was about 20 minutes after the plaintiff had been administered Fentanyl.
The Progress Notes
47․The Progress Notes for this examination, which were recorded by Dr Bodulkar, indicate that on a physical examination, the plaintiff did not have an “acute abdomen” (that is, she did not display guarding rigidity or tenderness). The plaintiff’s pulse rate was 87 and her blood pressure was 120/64. The notes describe the plaintiff as “stable”. The bedside ultrasound was “unremarkable”, but indicated the presence of a left corpus luteum (a physiological finding in pregnancy or menstruation which can cause pain).
48․The Progress Notes also record that there was a “D/W [discussion with] patient #DD: ongoing miscarriage / PUL [pregnancy of unknown location]”. Under the heading “Plan”, the notes state that the plaintiff’s hCG levels should be tested and that if hCG levels are decreasing, the patient may be discharged home.
The plaintiff’s evidence
49․The plaintiff recalled that Dr Menakaya performed a physical examination of her during this consultation.
50․The plaintiff gave evidence that during this consultation, Dr Bodulkar and Dr Menakaya explained to her that her pain was likely the result of an ovulation issue. She said that it was explained that the ultrasound had not identified where the pregnancy was. She recalled a discussion about her differential diagnoses, which she understood included a miscarriage or a pregnancy of unknown location. The plaintiff recalled the possibility of a pregnancy of unknown location being explained, but she did not recall being told that she might be having an ectopic pregnancy. She also did not believe that the plan for her treatment was discussed.
51․In relation to her pain levels at the consultation, the plaintiff gave evidence that she informed Dr Menakaya that she was experiencing pain on her left side, similar to the pain experienced during her ectopic pregnancy in 2016. In cross-examination, the plaintiff accepted that she had told Dr Menakaya and Dr Bodulkar that her pain had decreased after taking Fentanyl.
Dr Bodulkar’s evidence
52․Dr Bodulkar gave evidence that the 8:30pm consultation occurred because the plaintiff had complained of increased pain.
53․Dr Bodulkar gave evidence that the plaintiff’s observations were stable. He maintained that the absence of tenderness in the abdomen indicated that the plaintiff’s pain had subsided. He explained that the plan for the plaintiff was made on the basis that the pain had subsided. He acknowledged that it was possible that the plaintiff’s pain had been reduced by the Fentanyl, which had been administered 20 minutes before the consultation. He could not say whether he was aware at the time of the consultation that the plaintiff had recently been administered pain medication. However, he explained that the consultation had been arranged because the plaintiff was complaining of recent pain, and was requiring more painkillers.
54․Dr Bodulkar agreed that, because an ectopic pregnancy carried a greater risk to the plaintiff than miscarriage, he would have been anxious to rule out a diagnosis of an ectopic pregnancy. He acknowledged that in light of the plaintiff’s high risk of ectopic pregnancy, it would be important to make a note if the plaintiff was informed of this risk. He accepted that no such note was made, but could not say whether the absence of such a note from the medical records indicated that the plaintiff was not informed of this risk.
55․Dr Bodulkar explained that the plan for the plaintiff’s treatment should be read in light of the circumstances in which it was made – in particular, that the plaintiff had been admitted at high risk of ectopic pregnancy. He noted that the plan was also made on the basis that there had been no ultrasound findings, the plaintiff’s vital observations were stable, and she exhibited minimal tenderness upon physical examination. He also explained that the plan did not necessarily need to be followed if the plaintiff’s circumstances changed.
Dr Menakaya’s evidence
56․Dr Menakaya gave evidence that the plaintiff was admitted in order for her to be observed and for additional tests to be conducted, for the purpose of reaching a probable diagnosis. Noting an ectopic pregnancy had not been located on the previous ultrasound, he accepted that it was important that he check for other signs of that condition.
57․Dr Menakaya gave evidence that he had consulted the medication chart, and knew that the plaintiff had taken Fentanyl, but he was not aware that the administration of the drug had occurred just 20 minutes before the consultation. He acknowledged that the pain medication could have been a “confounding factor” in his examination of the plaintiff.
58․Dr Menakaya explained that the ultrasound revealed a corpeus luteum in the plaintiff’s left ovary, which he considered was the likely cause of the plaintiff’s pain. The ultrasound did not show any increasing blood in the plaintiff’s abdomen. Dr Menakaya noted that an ultrasound is the best available tool to identify an ectopic pregnancy, but acknowledged that the possibility of an ectopic pregnancy could not be excluded based only on ultrasound results. He said that this was the reason the plaintiff was kept overnight for continued monitoring of her symptoms and other parameters. He also acknowledged that left sided pain was also consistent with an ectopic pregnancy. Dr Menakaya accepted that a miscarriage or a corpus luteum each carried less risk than an ectopic pregnancy, and that if the pregnancy was ectopic, the plaintiff was in grave danger.
59․Dr Menakaya gave evidence that his normal practice would be to talk to and examine the plaintiff, discuss his findings and discuss her options, including advising her that an ectopic pregnancy was one of the potential differential diagnoses.
60․Dr Menakaya initially said that whilst he would have advised the plaintiff that she was potentially suffering from an ectopic pregnancy, he did not believe he would have advised the plaintiff that an ectopic pregnancy would result in her losing her remaining tube, as further assessment was needed at that time. He also later clarified that he would not have discussed the risks of ectopic pregnancy and death with the plaintiff before she had been diagnosed with that condition.
61․Dr Menakaya stated that, during this consultation, he was not able to exclude a tubal ectopic pregnancy, and that this possibility made it too risky to send the plaintiff home at that time. However, he said that while that possibility continued on 1 August 2019, the “parameters changed”. He was not asked to explain which parameters he was referring in this answer.
11:10pm – Fentanyl administered
62․The medication record states that the plaintiff was administered an additional 25mg of Fentanyl at 11:10pm.
Nurse examination at 1:45am on 1 August 2019
63․In the entry for 1:45am on 1 August 2019, “Nurse Xu” recorded that the plaintiff was “alert and orientated”, and that the plaintiff was “given Fentanyl as charted” with good effect. Nurse Xu was not called to give evidence.
Nurse examination at 5:30am on 1 August 2019
64․At 5:30am on 1 August 2019, it was recorded by Nurse Xu that the plaintiff “slept most of the time during the night”, and that her observations were stable. The notes also recorded that the plaintiff’s pad had been half bloodied, and that her pad was changed.
The plaintiff’s evidence
65․The plaintiff accepted that she had slept for “most” of the night, although her sleep was intermittent. The plaintiff also agreed that her pad being half bloodied was a decrease from the previous day.
Nurse examination at 7:15am on 1 August 2019
The nursing notes
66․The nursing note entry for 7:15am on 1 August 2019 (which was completed by Nurse Dansby) recorded that the plaintiff was handed over at 7:05am. The note records that the plaintiff states “mild pain”. A MEWS score of zero was also recorded.
The plaintiff’s evidence
67․In her evidence, the plaintiff recalled that during this examination, she rated her pain as 6 out of 10, and that she was given paracetamol. This does not accord with the nursing notes, which only record the plaintiff complaining of 6 out of 10 pain later at 10:10am that morning. There was no dispute that the plaintiff did complain of 6 out of 10 pain at 10:10am.
Nurse Dansby’s evidence
68․In oral evidence, Nurse Dansby clarified that her assessment of the plaintiff’s MEWS score being 0 indicates that all of the plaintiff’s vital signs were “within range” at that time
69․Nurse Dansby could not recall whether or not the plaintiff told her she was in “severe pain” at this time, but gave evidence that if the plaintiff had so reported, she would have recorded it in her notes. Similarly, Nurse Dansby said that if the plaintiff was curled up in a ball, in the foetal position, or if the plaintiff had reported that she knew she had an ectopic pregnancy and required surgery, these observations likewise would have been noted.
Nurse examination at 10:10am on 1 August 2019
The plaintiff’s evidence
70․The plaintiff gave evidence that on the morning of 1 August 2019, she had a discussion with nursing staff concerning her pain levels. She recalled telling the nurse that she was “still in pain”. The plaintiff said that the nurse asked her to rate her level of pain out of ten, with one being a low level pain and ten being an extreme level of pain. The plaintiff gave evidence that she rated her pain as being “6 out of 10”. The plaintiff recalled that she was given paracetamol, which she said had “some effect”. The plaintiff gave evidence that her pain was severe when she asked for paracetamol.
The nursing notes
71․The nursing note dated 10:10am on 1 August 2019 recorded as follows:
Bloods requested in notes however no blood forms given. Blood taken and sent. Paracetamol given as [incomplete]. Pt states 6/10 pain.
Nurse Dansby’s evidence
72․In oral evidence, Nurse Dansby said that paracetamol was given to the plaintiff at this time to manage the plaintiff’s pain. She accepted that the plaintiff “said she was in pain”. This was Nurse Dansby’s final interaction with the plaintiff.
11:30am consultation with Dr Bodulkar
Progress Notes
73․The Progress Notes for the 11:30am consultation were completed by Dr Bodulkar. The notes record that the plaintiff was admitted for “DD” [differential diagnosis], and lists “spontaneous miscarriage ongoing, PUL [pregnancy of unknown location] and ectopic” as possible diagnoses. The notes record that the plaintiff is at “high risk of ectopic [pregnancy] in view of past history”.
74․The Progress Notes further record that “[per vaginum] bleeding settled down from 7pm till now. 3 pads changed with very minimal loss” and “abdo pain is less now and has taken only paracetamol”. The Progress Notes also record that the plaintiff’s hCG levels had fallen from 2738 on 31 July 2019 to 2071 on 1 August 2019.
75․The Progress Notes state that on examination, the plaintiff was “stable/comfortable” and her pulse, blood pressure and oxygen saturation levels were within normal range. The results of a physical examination are described as “soft” with “no guarding/ rigidity/ tenderness. Nil acute abdomen”.
76․The Progress Notes also contain a list of issues discussed with the plaintiff. This list includes, among other things, “unplanned pregnancy”, “improved symptomology”, a social work referral (which is recorded as “declined”), “good family support”, and “plan after d/w [discussion with] consultant”.
The plaintiff’s evidence
77․As noted above, at 10:10am on 1 August 2019, the plaintiff had told Nurse Dansby that her pain was a 6 out of 10, and was given paracetamol to treat the pain. The plaintiff said that at the time of her consultation with Dr Bodulkar, the pain had been reduced, “not [by] a huge amount, but enough that I could straighten up my legs in the bed”.
78․The plaintiff gave evidence that Dr Bodulkar told her that her pain levels were going down, and that she could go home. She said that Dr Bodulkar told her that if she was “in any more pain [she] would come back to hospital”. The plaintiff maintained that there were no discussions about the possibility of the pregnancy being ectopic, nor was there any discussion about other options for investigating the possibility of an ectopic pregnancy whilst in hospital.
79․The plaintiff gave evidence that she was upset about being told that she was being discharged because she had a small child at home, and was worried that she could not manage the pain with Panadol and Nurofen. She said that she was worried that she was going to be by herself if the ectopic pregnancy ruptured. She explained that she was still “convinced [she] was having an ectopic pregnancy”. She acknowledged that she did not raise these concerns with Dr Bodulkar.
Madeleine Hartfield’s evidence
80․The plaintiff’s sister, Madeleine Hartfield, went to the hospital on 1 August 2019. She recalled that she was with the plaintiff during a consultation at this time with a male doctor.
81․Madeleine Hartfield recalled that the male doctor asked the plaintiff if she needed home support, a counsellor or psychiatric care prior to discharge. She did not otherwise recall what had been said. She said that the plaintiff was not holding her stomach when she was examined, and did not recall whether the plaintiff was grimacing in pain at the time of the examination.
Dr Bodulkar’s evidence
82․Dr Bodulkar gave evidence that, at the time of this consultation, the plaintiff’s hCG levels had reduced by 24 – 25% since the previous day, constituting a “significant fall” in the hCG levels. The plaintiff also suffered no ongoing per vaginum bleeding at this time.
83․Dr Bodulkar said that he performed a physical examination. He reported that the plaintiff’s vital signs were stable, and that her abdomen was soft and no longer tender. Dr Bodulkar noted that “abdo pain is less now”, with that pain being managed with paracetamol. On this basis, Dr Bodulkar formed the view that the plaintiff’s pain had started to improve, and that she was “comfortable”
84․Dr Bodulkar gave evidence that, at this point, he diagnosed the plaintiff as suffering from an ongoing spontaneous miscarriage, although he could not rule out a pregnancy of unknown location or ectopic pregnancy due to the plaintiff’s medical history. Dr Bodulkar gave evidence that the standard treatment for a suspected miscarriage is to “wait and see how the natural process of miscarriage happens” and that hospital admission is generally not required.
85․When referred to his notation that reads “discuss with patient”, Dr Bodulkar gave evidence that this “probably” means that he informed the plaintiff of her falling hCG levels, and discussed the improvement of her symptomology. He further gave evidence that he referred the plaintiff to a social work service, which she declined.
86․Dr Bodulkar gave evidence that if the plaintiff had complained of severe pain during this consultation, he would have recorded that complaint in his notes. He similarly would have recorded if the plaintiff had been curled up in a foetal-like position. He did not recall the plaintiff looking pale or clenching her fists.
12:00pm consultation between Dr Bodulkar and Dr Menakaya
Progress Notes
87․The entry in the Progress Notes for 12:00pm on 1 August 2019 records that Dr Bodulkar had a consultation with Dr Menakaya concerning the plaintiff’s treatment.
88․The Progress Notes record that the outcome of this consultation was a plan for the plaintiff to be discharged home, with “outreach follow up”, to have her hCG levels tested the following week, and to follow up with the Emergency Department if there were any concerns.
Dr Menakaya’s evidence
89․Dr Menakaya gave evidence that he had no recollection of discussing the plaintiff with Dr Bodulkar, though accepted that such a conversation must have taken place, given the reference to the conversation in Dr Bodulkar’s notes.
90․Dr Menakaya could not recall whether Dr Bodulkar informed him that the plaintiff had reported suffering 6 out of 10 pain. However, he also gave evidence that if he had been aware of the plaintiff’s pain score, he would “likely” have elected to examine the plaintiff himself. Further, had he known of this pain score, he said that he would not have advised that the plaintiff be discharged.
Dr Bodulkar’s evidence
91․In oral evidence, Dr Bodulkar confirmed that the plan referred to in the notes was “[Dr Menakaya’s] plan as per [his] review”. Dr Bodulkar was unable to recall whether he informed Dr Menakaya of the plaintiff’s complaint that she was suffering from 6 out of 10 pain.
12:25pm consultation
92․The plaintiff saw Dr Bodulkar again at around 12:25pm on 1 August 2019. The plaintiff’s sister, Madeleine Hartfield, was also present at this consultation.
Progress Notes
93․The Progress Notes of this consultation record that “red flags” had been “explained”, pathology forms had been given to the plaintiff and that the “patient plan” had been explained.
The plaintiff’s evidence
94․In her evidence, the plaintiff said that she recalled Dr Bodulkar told her that he was discharging her, that she needed to present to her GP later in the week for further blood tests, and that if she experienced “any more pain”, she should present back to Emergency. She could not recall any conversation with Dr Bodulkar in which the term “red flags” was used. The plaintiff gave evidence that her pain levels remained “about the same” as they were during the 11:30am consultation.
Madeleine Hartfield’s evidence
95․Madeleine Hartfield, the plaintiff’s sister, gave evidence that while she recalled being present at this consultation, she could not recall any of the substance of what was said during this consultation.
Dr Bodulkar’s evidence
96․Dr Bodulkar gave evidence that during this consultation, he informed the plaintiff of Dr Menakaya’s “patient plan”. Dr Bodulkar said that he reminded the plaintiff to be alert to any new or worsening symptoms. Dr Bodulkar explained that whilst he had “red flags” in his notes, he would not have used that expression with the plaintiff. When asked what “red flags” referred to, Dr Bodulkar said:
So it is for the patient's clinical condition. So in this case, if the patient has come with pregnancy, abdominal pain and vaginal bleeding then we will tell them those relevant red flags as maybe increase bleeding, increased pain, or if this person was probably high risk for ectopic, then we'll say that if you have dizziness or if you pass away then someone has to bring her. [T191.20]
97․Dr Bodulkar gave evidence that he did not recall the plaintiff looking pale or clutching her abdomen during this consultation. He also did not recall the plaintiff telling him that she was having an ectopic pregnancy. He gave evidence that if any of these things had occurred, he would have recorded that in the notes.
Discharge at 1:30pm
The nursing notes
98․The nursing notes record that the plaintiff was transferred to the ward at around 12:25pm, and that her vital signs were stable at that time.
99․The nursing notes entry for 1:30pm records that the patient stayed in the ward for approximately one hour, and was discharged home. Those notes further record that the plaintiff “walking outside ward to wait for husband to pick up”. The author of that record was not called to give evidence.
The plaintiff’s evidence
100․As noted above, the plaintiff was discharged at around 1:30pm on 1 August 2019. She said that her pain levels at this time were about the same level as when she saw Dr Bodulkar at 12:25pm on 1 August 2019. The plaintiff said that when she left the hospital, her pain was still on the left side, and she was “hunched over” as she walked to the car.
101․In her further cross-examination in May 2024, the plaintiff confirmed that, shortly before her discharge from hospital, she informed Dr Bodulkar that she suspected she was experiencing an ectopic pregnancy, and that if she was to experience a rupture while at home, she was concerned that she would not know how to manage it. She said that Dr Bodulkar told her to return to the hospital should her pain increase. The plaintiff agreed that she was aware of the implications of a rupture, having experienced a previous rupture in 2015.
Madeleine Hartfield’s evidence
102․Madeleine Hartfield gave evidence that when they left hospital, the plaintiff remained in pain. She said that she could not recall if the plaintiff was grimacing, but she said that the plaintiff “had a look on her face that she was in pain” and was holding her abdomen. She did not recall having to assist the plaintiff in walking to, or getting into, the car.
103․Madeleine Hartfield said that she was concerned about the plaintiff being discharged, but she did not recall saying anything to the plaintiff or to medical staff about her concerns.
Discharge Summary
104․A record entitled “Medical Nursing Discharge Summary” records that the plaintiff’s discharge time was 1:30pm on 1 August 2019. The record states that the plaintiff’s diagnosis was “abdo pain”. Under the entry “Discharge Advice and Special Instructions” is written: “To present to Emergency Department in case of any Concern/ Deterioration.”
The plaintiff returns home
105․Madeleine Hartfield drove the plaintiff home. Madeleine Hartfield described the plaintiff as remaining in pain once they arrived home, with “a grimace on her face, holding her stomach, hunched over, pale in her skin”.
106․The plaintiff walked up the stairs to her house and went straight to her bedroom where she lay down with a heater pack and her electric blanket. She took some more pain relief (Panadol) and stayed in bed.
107․At some point during the afternoon, the plaintiff’s then husband (who had been deployed overseas at the time) returned home. The plaintiff’s sister then left the plaintiff with her husband.
108․At around 6:00pm – 7:00pm on the evening on 1 August 2023, while at home, the plaintiff’s pain increased. She began sweating, which the plaintiff explained, occurs when she is in significant pain.
109․In her further cross-examination, the plaintiff accepted that it was “likely” that she turned her mind to the prospect of returning to the hospital when her pain increased, but did not do so. She took some paracetamol and “just laid on [her] side to just try and deal with it”. She recalled that the pain she was experiencing at this time was not as severe as the pain she experienced during the 2015 rupture, and said that she decided to “stay at home and see what happens”. After 7:00pm, the plaintiff said that she was “on and off sleeping”, sleeping for five or ten minutes and then reshuffling to get comfortable, before then dozing in and out.
110․At approximately 2:00am on 2 August 2023, the plaintiff experienced a sharp, sudden onset of acute pain in her left tip shoulder as well as vaginal bleeding. She gave evidence that this pain was “the exact same pain” as the pain she experienced during her previous ectopic pregnancy, but on the opposite side. She went to her ensuite bathroom suffering a “vomiting dizzy spell”.
111․The plaintiff agreed that this was a very significant change in her symptoms. She did not wake up her husband. She said that she was terrified about going in and having further surgery, and potentially dying. She said that she knew that these symptoms were the symptoms of an ectopic pregnancy.
112․The plaintiff gave evidence that she then “tried to go back to bed with some more pain relief, but the pain was so excruciating that [she] ended up waking up [her] ex-husband to take [her] to the hospital”. She said that this was around 5:00am. The plaintiff said that they had to wait for her parents to wake up so that they could “tag team” with her daughter.
113․The plaintiff said that after waking at 2:00am until she woke her husband at 5am, she was “preparing [her]self”, “digesting what was happening” and “waiting for a reasonable time to call someone … to come and look after [her] child so [she] could go to the hospital”. She said she had “never felt so much fear”. She accepted that if she had been thinking rationally, she would have called an ambulance immediately upon the onset of this pain. However, she described experiencing an adrenaline rush and that it felt like an “out of body” experience. She was also concerned about disturbing her parents, sister and husband during the night.
The plaintiff’s re-admission and surgery on 2 August 2019
114․The plaintiff returned to the Hospital on 2 August 2019 at 6:38am, where she presented to the Emergency Department with abdominal pain, per vaginum bleeding, and left shoulder pain. At about 7:45am, she was reviewed by a nurse from the Emergency Department, who conducted a bedside ultrasound which identified free fluid in the plaintiff’s pelvis. She was again reviewed at 8:05am and then reviewed by the attending obstetrics and gynaecological registrar at 8:20am. The attending registrar diagnosed her with a ruptured ectopic pregnancy and referred her to surgery.
115․The plaintiff was re-admitted at 9:38am and a laparoscopic left salpingectomy was conducted to remove her left fallopian tube. As the plaintiff’s right fallopian tube had been removed at the time of her first ectopic pregnancy in 2015, this procedure left the plaintiff unable to have further children naturally.
116․The plaintiff was discharged from Hospital on 3 August 2019.
Subsequent events
117․The plaintiff took personal leave following the surgery from 31 July to 2 August 2019. She then took a further 11 days off work using recreational leave. She gave evidence that this occurred by way of a verbal agreement with her supervisor.
118․On 7 August 2019, the plaintiff attended her general practitioner (GP) at Ochre Health Casey. She reported being upset about the removal of her left fallopian tube and having difficulty sleeping since the events on 2 August 2019, and was prescribed melatonin. The plaintiff gave evidence that the melatonin provided some assistance.
119․The plaintiff returned to her GP two days later, reporting increased per vaginum bleeding and clots but reported that she was not experiencing pain, fevers or dizziness. She again expressed distress about her treatment at Calvary Hospital and particularly concerning the decision to discharge her on 31 August 2019 even though an ectopic pregnancy had not been ruled out.
120․In September 2019, the plaintiff was referred to Dr Felicity Brims and organised a fertility consultation for November that year. She subsequently cancelled the appointment.
121․The plaintiff gave evidence that, following her second ectopic pregnancy, her marriage started to break down. The plaintiff gave evidence that although the 2019 ectopic pregnancy and its consequences were not the only factors in the deterioration of her marriage, “it certainly was the tipping point”. In February 2020, the plaintiff began seeing a psychologist, Ms Izzard, regarding her intention to end her marriage. In her evidence, the plaintiff explained that she was seeking an expert opinion on how the separation would effect their daughter.
122․The plaintiff gave evidence that, in August 2020, around the time of the one year anniversary of the 2019 ectopic pregnancy, she experienced a sharp decline in her mental health. She described herself as being “highly emotional” and “sobbing inconsolably”. She recalled taking one week off work as a result.
123․In December 2020, the plaintiff began considering freezing her eggs, and was referred by her GP to Dr Brims. After consulting Dr Brims about the prospects of successful egg freezing and IVF, the plaintiff began this process in mid-late 2021 and was hoping to commence IVF in 2024.
124․Dr Brims provided a report dated 6 July 2021 and also gave evidence in the proceedings. In brief, her evidence was that as a result of the plaintiff’s bilateral salpingectomy, it is no longer possible for her to conceive naturally and IVF is now the only option available to the plaintiff that would allow her to conceive. Dr Brims expressed the view that the plaintiff “has a good chance of falling pregnant with IVF” in view of her age, egg count and past history of successful conceptions. The success rate per embryo transfer is 30%, with 80% of women under 40 falling pregnant after two rounds of IVF.
125․The plaintiff gave evidence that she continues to experience “broken sleep”. She also reported suffering from reoccurring nightmares, the subject of which has been dying in a hospital room. The plaintiff has not sought any medical assistance in relation to her psychological state, besides from her GP and her two consultations with Ms Izzard. She said that she has not done this because she did not “have a lot of faith in the medical profession at this point in [her] life”.
126․The plaintiff now has a new partner, with whom she intends to have two children. They intend to undergo IVF to facilitate this. The plaintiff explained that she is “sad and anxious” about the prospect of undergoing IVF.
The medical evidence concerning the diagnosis and treatment of the plaintiff
The three experts
127․The plaintiff obtained three expert reports from Associate Professor Izzo, and a report from Professor Hyett. Although obtained at the request of the plaintiff, Professor Hyett’s report was tendered by the defendant, without objection from the plaintiff.
128․In response to the expert evidence obtained by the plaintiff, the defendant obtained two expert reports from Dr Vincent Lamaro, a gynaecologist and endoscopic surgeon.
129․Dr Lamaro is the Head of the Department of Gynaecology at St Vincent’s Hospital in Sydney, and has held this position for over a decade. He is also a senior lecturer at the University of New South Wales and the University of Notre Dame, each for over 15 years.
130․Professor Hyett is a Professor of Obstetrics and Gynaecology at Western Sydney University. He has published over 300 research papers on foetal medicine. He is also a clinical academic working in obstetrics and maternal foetal medicine at Liverpool Hospital, where he runs weekly clinical sessions on antenatal and intrapartum care, and ultrasound and foetal medicine including the diagnosis of foetal abnormalities.
131․A curriculum vitae for Associate Professor Izzo was not tendered. However, in cross-examination, Associate Professor Izzo indicated that has been in practice for 35 years, has been on the college examination boards and has taught registrars over that period. He said that he was still in clinical practice, and still performed laparoscopies, salpingotomies and salpingectomies as a part of this clinical practice. Associate Professor Izzo described himself as a “generalist” and acknowledged that he did not have the qualifications that Professor Hyett has in pregnancy and early pregnancy.
Associate Professor Izzo’s First Report
132․In his first report, dated 1 October 2020, Associate Professor Izzo observed that the plaintiff had had three miscarriages between 2013 and 2015 followed by an ectopic pregnancy in 2015.[1] He further noted that the incidence of an ectopic pregnancy in a person who has had a previous ectopic pregnancy rises from 1–2% to 10%.
[1] The reference to three miscarriages appears to be an error. As described above, the plaintiff had previously suffered two miscarriages, followed by the first ectopic pregnancy.
133․Associate Professor Izzo was of the opinion that this risk should have been factored into the plaintiff’s management, and that the plaintiff “should not have been allowed to leave hospital”. He continued:
I accept that one may find issues with medical management which is usually methotrexate in that it could not be absolutely determined that this was not an intra uterine pregnancy though the other criteria were met in that she was haemodynamically stable and the hCG concentration was not high. The case for laparoscopy is much stronger. With a pregnancy of unknown origin, a pain in the left lower quadrant of the abdomen, a previous ectopic pregnancy on the other side and a stable patient with no evidence of peritonism which equals intra peritoneal bleeding, there should have been an urgency to carry out a laparoscopy in an effort to salvage the tube. The operation of choice should have been a salpingostomy.
134․Associate Professor Izzo expressed the opinion that if a salpingostomy had been performed, on the balance of probabilities, the plaintiff’s fallopian tube could have been salvaged, avoiding the “significant deleterious effects on [the plaintiff’s] fertility and health [including mental health]”.
Associate Professor Izzo’s Second Report
135․In his supplementary report dated 10 November 2021, Associate Professor Izzo confirmed his opinion that the plaintiff’s management by the Hospital fell below the standard of care expected of a public hospital operating in Canberra at that time.
136․In particular, he explained that in view of the plaintiff’s symptoms, namely, bleeding, pain in the lower abdomen, “more so on the left than on the right”, and with no evidence of an intrauterine pregnancy or gestational sac on an ultrasound at five weeks gestation, the pregnancy was one of unknown origin. Associate Professor Izzo stated that it should have been recognised that there was a “high index of suspicion” for an ectopic pregnancy, particularly given that the plaintiff had previously had an ectopic pregnancy and the plaintiff’s tenderness was localised on the side of her remaining tube.
137․Associate Professor Izzo expressed the view that the plaintiff should have been kept in hospital for an early diagnosis. He agreed that the administration of methotrexate would not have been appropriate (both because the pregnancy was wanted and because there was pain and bleeding), but stated that a diagnostic laparoscopy should have been performed “as a matter of urgency”. He explained that a diagnostic laparoscopy would have enabled a diagnosis to be made of an ectopic pregnancy in the left tube, and would also have enabled treatment, namely, a salpingostomy for the removal of the portion of the tube where the ectopic pregnancy was located (in contrast to a salpingectomy, where the whole of the tube is removed).
138․Associate Professor Izzo again reiterated his opinion that had this procedure occurred on the plaintiff’s first presentation, “it is more likely than not that the tube could have been salvaged”, adding “I believe very strongly that had the appropriate treatment been done on the first hospital admission, there would have been no need to remove the tube”.
139․Associate Professor Izzo acknowledged that a salpingostomy “does increase the risk of a further ectopic in a subsequent pregnancy”, from 10% to 20%. He commented that this leaves “80% that an ectopic will not reoccur”, whereas the removal of the plaintiff’s second fallopian tube now means that the plaintiff must have IVF to achieve another child. He concluded “the management that [the plaintiff] received is not management which would be considered appropriate by one’s peers, neither now nor in 2019”.
Dr Lamaro’s First Report
140․In his first report, dated 13 February 2022, Dr Lamaro expressed the opinion that there was “no indication or justification to perform anything other than expectant management (ie observation and surveillance with beta-hCG ultrasound and clinical reviews)” and that “expectant management was entirely appropriate” (emphasis in original).
141․Dr Lamaro explained that “while … in hindsight [the plaintiff] had a left ectopic pregnancy, the attention given to excluding this diagnosis and the features of her presentation … could easily fit with a miscarriage”. In this respect, he noted that the plaintiff had a history of miscarriage, as well as a history of ectopic pregnancy.
142․By reference to relevant guidelines, including those produced by the National Institute for Health and Clinical Excellence (NICE) and the Royal College of Obstetricians and Gynaecologists (RCOG), Dr Lamaro maintained that surgery by way of a laparoscopic salpingostomy should not have been performed at the plaintiff’s first admission, and that discharge was appropriate. He stated:
Within the guidelines, as long as a patient is without pain, only experiencing light bleeding, and no location for pregnancy identified on ultrasound, in association with declining beta-hCG levels, [and noting a previous miscarriage history] it would be entirely appropriate to discharge such a patient.
143․Dr Lamaro further stated that provided the patient was assessed as having capacity to understand the potential diagnoses and risks, the patient has sufficient home support structures and the hospital were in close proximity, it is “very reasonable” to discharge the patient, and it is the current practice at St Vincent’s Hospital to do likewise.
144․Dr Lamaro explained that if the plaintiff had remained in hospital, without any change in symptoms, there would be no further occasion for hCG testing or ultrasounds; “only a symptom of pain – which would have to be identified by the patient – would activate the next decision process” (emphasis added).
145․Bearing in mind the potential risks and complications of a laparoscopic surgery and a general anaesthetic, Dr Lamaro was adamant that it would not have been appropriate to perform a surgical procedure by way of a laparoscopic salpingostomy at the plaintiff’s first admission. He stated:
As discussed above, based on [the plaintiff’s] specific clinical presentation, the resolution of symptoms during observation period, the decline in beta-hCG by 26.2% from 2738 to 2021 [sic] within 24 hours and a completely negative ultrasound, it would not be appropriate to perform surgery on a patient within that setting.
Associate Professor Izzo’s Third Report
146․On 19 May 2022, Associate Professor Izzo provided a further report in response to the report of Dr Lamaro.
147․In that report, Associate Professor Izzo stated that he did not agree with Dr Lamaro’s opinion that expectant management was appropriate.
148․In explaining this opinion, Associate Professor Izzo commenced by disputing Dr Lamaro’s description of the plaintiff at her initial presentation as having “stable observations, left side pelvic and abdominal discomfort”, adding “[t]his is a strange way of defining extremely severe pain which require[s] Fentanyl the most powerful opioid that we have at our disposal”. Associate Professor Izzo also again reiterated that it was important that the plaintiff had pain on her left side, having had a previous ectopic pregnancy on her right side. He described the risk of a repeat ectopic pregnancy as 15% (in contrast to his previous statements that the risk of a repeat ectopic pregnancy was 10%).
149․Associate Professor Izzo noted that the plaintiff’s beta-hCG level on 31 July 2019 was 2738, down to 2021 whilst still in hospital the following day. (It is noted that the reference to 2021 appears to be an error, as the plaintiff’s recorded hCG level at this time was 2071). He continued:
The Royal College of Obstetricians and Gynaecologists Guideline 21 reviewed 2010 (Appendix A) states that expectant management is an option for clinically stable, asymptomatic women with a decreasing serum hCG initially <1000 iu. It also states in the same guideline that using initial upper level of serum hCG of 1000–1500 to diagnose pregnancy of unknown origin, women with minimal or no symptoms at risk of ectopic pregnancy should be managed expectantly for 48–72 hours or follow up could be considered for active intervention is [sic] the symptoms of ectopic pregnancy occur or serum hCG levels rise above the discriminatory level of 1000.
So in fact, again the levels of 2000 are above what the college recommends for expectant management and even in those women it states where there was no risk of ectopic pregnancy. [The plaintiff], in fact had had a previous ectopic and I have said before that increased her risk quite dramatically to 15%. There was no place for expectant management in such a patient.
150․Associate Professor Izzo considered that it was “irrelevant” that the plaintiff’s BhCG levels had reduced by 22.2%, because they were still above the margin of 2000, “again not an indication for expectant management”. He reiterated his view that the plaintiff “should have been kept in hospital and operated on”.
151․As to the choice between a salpingostomy and a salpingectomy, Associate Professor Izzo expressed the view that “salpingostomy is preferred for patients who desire future child bearing and in whom the contralateral tube is absent or damaged”. Whilst acknowledging that the availability of IVF has “to a certain extent decreased the need to preserve a damaged fallopian tube”, he noted that many patients “do not have access to IVF for financial, geographical or religious reasons” and that many women would prefer to fall pregnant naturally.
152․Associate Professor Izzo concluded:
In summary then, I have not changed my opinion and I disagree with Dr Lamaro. Expectant management as took place here was unacceptable, does not follow the guidelines, unlike what Dr Lamaro wants us to believe and with the parameters discussed, is dangerous as we found here with a ruptured ectopic.
From the clinical picture of the acute pain and then settling, it certainly appears that the ectopic did not rupture till the second presentation this is supported by the fact that the first ultrasound did not see any free blood as occurs with a ruptured ectopic. Had she thus had a salpingostomy at the initial presentation, the tube would have been preserved rather than left in the state that she is now in with the only option remaining to her is IVF.
Dr Lamaro’s Second Report
153․In a report dated 19 February 2022, Dr Lamaro addressed further questions asked by the defendant in response to the third report of Associate Professor Izzo.
154․Dr Lamaro was asked to consider whether he agreed with Associate Professor Izzo that the plaintiff was in “severe pain” on her first admission. Dr Lamaro did not agree.
155․In expressing this opinion, Dr Lamaro noted that the plaintiff had inhaled methoxyflurane, which he explained, is a drug that lasts for around 25 minutes and is given for acute pain relief. He noted that the plaintiff did not require any further pain relief until 7 hours later (5pm that night), and that she had small doses of Fentanyl at 5:00pm, 8:30pm and 11:00pm, and a dose of Paracetamol at 2:30am. Dr Lamaro also noted that the Progress Notes recorded that the plaintiff spent most of the night sleeping, and only required one dose of Paracetamol the following morning at 10:00am.
156․Dr Lamaro summarised his opinion on the issue of pain as follows:
[The plaintiff] underwent multiple reviews through the day and was eventually examined with consultant and registrar, found to be pain free and discharged with outpatient management.
Pain is a very subjective symptom. This patient indeed presents with pain, which eventually completely settles by time of discharge. While it must be taken into account for management purposes, it is one of multiple clinical elements that help us differentiate between things such as threatened or complete miscarriage, an ectopic pregnancy or a corpus luteal event or other. Typically in a patient unable to tolerate any other pain agents, small doses of fentanyl are often used in all emergency departments as first line rapid analgesia, along with other opioids such as morphine. The use of such agents does not necessarily reflect the severity of pathology, but rather acts as an option for a very rapid onset agent to deal with a patient in pain.
157․Dr Lamaro disagreed with Associate Professor Izzo concerning the significance of “free fluid” in the plaintiff’s abdomen, noting that small amounts of free fluid are not infrequently seen in healthy females of reproductive age.
158․Dr Lamaro confirmed his view that it was appropriate to rely on the RCOG and NICE guidelines when considering appropriate medical practice, and noted that these guidelines are reviewed every few years based on new data and Committee recommendations.
159․Dr Lamaro maintained that the standard of care given to the plaintiff on her first admission was appropriate, as she had a negative ultrasound, declining beta-hCG levels and was “pain free” at the time of discharge. He also reiterated that none of the criteria for surgery were met, and indeed considered that a surgical intervention would have itself constituted a “deviation from standard of care”.
160․Dr Lamaro concluded:
In summary, the first admission was managed well within standard of care accepted in any public hospital in Australia. The thorough assessment, while of course not initially diagnosing an ectopic, had been carried out with all appropriate steps for that specific clinical presentation. We all feel for the plaintiff’s experience, and wish we could have prevented this outcome when looking in retrospect. However, at the plaintiff’s first presentation, the appropriate standard of care was provided by all clinicians, utilising the evidence at hand and combinations of the above guidelines.
Professor Hyett’s Report
161․In his report, dated 22 June 2023, Professor Hyett noted that the plaintiff’s presentation on her first admission was compatible with a complication of early pregnancy, and that the plaintiff’s previous history of an ectopic pregnancy increased the risk of her having another ectopic pregnancy.
162․Professor Hyett expressed the opinion that the nature of the plaintiff’s symptoms (light vaginal bleeding, spotting, localised abdominal pain and diarrhoea) were “more likely compatible with ectopic pregnancy rather than miscarriage”.
163․Professor Hyett considered that as the plaintiff was not acutely unwell on 31 July, was haemodynamically stable and as the investigation had concluded that she had a “pregnancy of unknown location”, it was “appropriate to manage the situation conservatively and expectantly, awaiting further developments – either in clinical presentation or with further test results”.
164․Professor Hyett explained that if a laparoscopy had been performed at the time of the plaintiff’s first admission:
(a)There would have been a “small risk” of the surgery adversely affecting a viable pregnancy;
(b)There would have been a “small risk” that the ectopic pregnancy would not be visible;
(c)There would have been a significant chance that the ectopic pregnancy would “abort spontaneously without further complication”, such that any intervention (which would inflict more tubal damage) would have been unnecessary;
(d)There would be a significant risk, if a tubal ectopic pregnancy was identified and a salpingostomy (repair of the fallopian tube) attempted, that the procedure would not be technically possible, requiring a salpingectomy (removal of the fallopian tube);
(e)If a salpingostomy had been successfully performed, there would be an ongoing risk of persistent viable tubal trophoblast – requiring ongoing serial evaluation to track hCGs; and
(f)If a salpingostomy had been performed – damage to the tube would have been compounded and there would be a further increase in risk of ectopic pregnancy.
165․Professor Hyett concluded:
Given these risks, expectant management was, in my opinion, the more appropriate course of action. It would be normal practice to monitor hCG changes over a 48 hour cycle and to plan a second scan for a woman with a ‘pregnancy of unknown location’ seven days after the first scan.
Expectant management could involve either inpatient or outpatient management. As it may take another seven days to reach a diagnosis, the majority of women are managed in an outpatient setting. There is a risk associated with this in so far as if there is an ectopic pregnancy and this ruptures then a woman could bleed significantly – and this is a potentially life-threatening situation.
The decision as to whether a woman should be admitted or can be managed as an outpatient will therefore depend on medical assessment of degree of risk (likelihood of this being an ectopic, clinical symptoms/ stability and an individual’s personal circumstances with respect to being alone or accompanied at home and being able to return to hospital easily and quickly) and should, in my opinion, be a shared decision made with the patient.
In circumstances where a patient has been admitted overnight for observation, symptoms have settled, and there is no evidence of an acute complication – with investigations that have led to the description of a ‘pregnancy of unknown location’, then one reasonable option for ongoing care would be to discharge the patient home whilst awaiting further tests.
This is with the caveat that when women are discharged home in this situation, they are assessed to ensure that they understand the potential for a future diagnosis of ectopic pregnancy and the small risk of rupture which will need to be managed promptly. They need to be able to recognise any change in symptoms and return to the hospital in a timely fashion.
166․Professor Hyett was also asked whether this opinion would alter if the plaintiff had continuing pain at the time of discharge, that was being managed by pain medication. With reference to current NICE guidelines, he responded that “significant ongoing pain” would need to be factored into the risk assessment concerning the relative merits and disadvantages of admission or outpatient treatment and continued:
A significant level of pain would make it less likely that the clinical situation was completely stable, increasing the potential for risk of rupture in an outpatient environment. The balance of risk may therefore favour admission…
The NICE guidelines
167․As noted above, Professor Hyett and Dr Lamaro made express reference to the NICE guidelines in their respective reports. These guidelines concern the diagnosis and management of ectopic pregnancy and miscarriage in women with complications in early pregnancy.
168․The NICE guidelines relevantly provide that expectant management is only an option for women who are clinically stable and pain free, have a tubal ectopic pregnancy measuring less than 35 mm with no visible heartbeat on transvaginal ultrasound, have hCG levels of between 1000 and 1500, and are able to return for follow-up. The guidelines also recommend that where tubal ectopic pregnancy is being managed expectantly, hCG pathology is to be repeated 2, 4 and 7 days after the original test.
169․The guidelines further recommend that patients who are able to return for follow-up be offered a choice of methotrexate or surgical management where hCG levels remain between 1500 and 5000, and only if they are experiencing no significant pain, have an unruptured ectopic pregnancy smaller than 35mm with no visible heartbeat, and no intrauterine pregnancy as confirmed on an ultrasound scan.
170․Surgical management is specified as “a first-line treatment” if the patient has an ectopic pregnancy and is suffering from significant pain.
The RCOG guidelines
171․As noted above, Associate Professor Izzo and Dr Lamaro also cited RCOG guidelines in their respective reports; namely, Green-top Guideline 21 on the Diagnosis and Management of Ectopic Pregnancy.
172․Under this guideline, expectant management is recommended only for clinically stable patients with an ultrasound diagnosis of ectopic pregnancy and a decreasing hCG level of less than 1500. The guideline further states that systemic methotrexate should not be offered unless an ectopic pregnancy diagnosis is “absolutely clear” and a viable intrauterine pregnancy has been excluded. In all other circumstances, laparoscopic salpingectomy is the preferred treatment option under the guideline. However, the guideline provides that salpingostomy should also be considered if the patient has a history of fertility-reducing factors, including a previous ectopic pregnancy.
The conclave evidence
454․In these circumstances, I am satisfied on the balance of probabilities that the plaintiff has established causation under both s 45(1)(a) and 45(1)(b) of the Wrongs Act.
Contributory negligence
455․As noted at [298․] above, in its Further Amended Defence, the defendant relied on contributory negligence, particularised as follows:
(a)Failing to advise Hospital personnel of various specified matters concerning her pain levels and her concerns on discharge;
(b)Disregarding medical advice to re-present to the Hospital Emergency Department if there was any increase in pain or if she had any concerns, because she wanted to “try and manage it at home” on 1 August 2019;
(c)Failing to contact the Hospital, call an ambulance or re-present to the Hospital after 7:00pm on 1 August 2019 when she alleges she experienced an increase in pain;
(d)Failing to contact the Hospital for advice/ support, to call an ambulance, to ask her husband or family members to transport her or to re-present to the hospital after 2:00am on 2 August 2019 when she says she started experiencing severe pain including sharp shooting pains up her arm and into her shoulder tip, or thereafter;
(e)Failing to contact the Hospital for advice/ support, call an ambulance, ask her husband or family members to transport her or re-present to the hospital at any time prior to 6:38am on 2 August 2019.
456․Paragraph (a) was not referred to in the defendant’s closing submissions. I understand that the allegation contained in that paragraph was made in the event that the plaintiff was in severe pain at the time of discharge. I have not so found. The plaintiff answered all of the questions that were asked by her, which included advising medical staff that her pain had reduced (the clear implication being that she remained in pain). She also expressed her concern about being at home if an ectopic pregnancy ruptured. She was not required to do more.
457․As to paragraphs (b), (c) and (e), on first consideration, it may appear that the plaintiff should be found guilty of contributory negligence for failing to re-present to the Hospital. The plaintiff agreed that she was told that she should re-present to the Hospital if her pain increased. Whilst the plaintiff did not consider that she could have driven herself to hospital, the plaintiff accepted that she could have called her sister, her parents or an ambulance. The plaintiff accepted that it was “likely” that she turned her mind to the prospect of returning to the Hospital at this time. The plaintiff did not return to the Hospital, and instead took some paracetamol and “just laid on [her] side to just try and deal with it”.
458․However, the plaintiff’s acts must be viewed in the context of the whole of the advice that she was given. As outlined above, the plaintiff was discharged despite having complained of 6 out of 10 pain earlier that day, and where she remained in pain at the time of discharge. The defendant failed to adequately inform the plaintiff of her ongoing risk of an ectopic pregnancy, and the significance of an increase in pain in connection with that condition. The advice given to the plaintiff to return to hospital in the event of an increase in pain was undermined by the inadequate advice that was provided to the plaintiff, in particular, the failure to explain to her that she remained at high risk of an ectopic pregnancy, and the failure to explain to her why it was important that she return to hospital in the event of any increase in pain. In these circumstances, the defendant has not established that the plaintiff suffered damage “partly because of [her] failure to take reasonable care” (s 102(1) of the Wrongs Act).
459․This position is even clearer with respect to the plaintiff’s failure to return to hospital at 2:00am on 2 August 2019. In her further cross-examination, the plaintiff provided the following explanation of her thought processes at 2:00am:
So I was preparing myself and I think I mentioned in the – in the last evidence that – and correct me if I'm wrong I'm just – I'm trying to think out loud here, that I think it was – I was digesting what was happening and I was, in essence, you know, waiting for a reasonable time to call someone to – to come and look after my child so I could go to the hospital.
460․The following exchange then followed
Morris SC: So did you think of – you must have thought of waking your husband and asking him to take you to the hospital?
Plaintiff: I did, but I – I like to caveat with the fact that there was a – I’ve never felt so much fear. And I can't tell you what was going on in my head, apart from not being a burden on whoever had to take me to the hospital. So in my view, what happened was I was worried about waking up my parents to come and look after my child, so then waking up my husband to then - my ex husband to then take me to the hospital. I just wasn't clearly and – and I – I have never felt so much adrenaline run – run through my body and I can’t tell you if this was a 10-minute period of where I was – what I was thinking or if this was over two hours. It was just – I had to – I just felt I was having an out of body experience.
Morris SC: I understand you were fearful, all right? I understand you were fearful and I'm not challenging the suggestion that you were in pain and you were concerned, right? I accept that. But you made a decision not to wake your husband, correct?
Plaintiff: I – yes.
Morris SC: You made a decision not to ring the ambulance, right?
Plaintiff: Yes.
Morris SC: You made a decision – and I'm – I understand there were all sort of issue of whether your father – your mum and dad or your sister might have answered the phone had you called them. But these were all options that you thought about and decided not to take it because you didn't want to interrupt anybody; is that right?
Plaintiff: Absolutely, and from rational thought, you know, sitting here today, if this was happening immediately, of course I would call an ambulance. That’s, you know, that’s – I'm a grown up. That's, you know – it's irresponsible to think otherwise, but in that moment, I don't know what was going through my brain.
461․In short, the plaintiff’s experience of pain at 2:00am was of such a severity as to interfere with her capacity to engage in rational decision-making. This inability to engage in rational decision-making was itself directly caused by the defendant’s negligence. In these circumstances, I do not accept that the plaintiff’s failure to return to hospital at 2:00am amounted to take a failure to take reasonable care.
462․Accordingly, I find that the defendant has not established that the plaintiff is guilty of contributory negligence.
Damages
Overview
463․The assessment of damages must proceed on the basis of the particular breach that I have found.
464․As outlined above, the plaintiff has not established that the defendant should have performed a laparoscopy, or a salpingostomy, at any time during her first admission. Further, the plaintiff has not demonstrated on the balance of probabilities that any salpingostomy, whether performed during the first admission, or performed on or shortly after 7:00pm on 1 August 2019 would have been successful. In other words, there is nothing that the Hospital could, or should, have done which would, on balance, have successfully saved the plaintiff’s left fallopian tube. In these circumstances, the plaintiff’s claim for the loss of an organ (her left fallopian tube), loss of fertility and ongoing pain and vomiting during menstruation must be dismissed.
465․The remaining damages that are sought relate to the physical pain which the plaintiff suffered from 7:00pm on 1 August 2019, psychological disorders, namely post-traumatic stress disorder and depression, and her marriage breakdown. As the defendant submitted, any psychological injury which the plaintiff would have suffered in any event, due to the loss of her pregnancy, the loss of her fallopian tube, and the stress of surgery, must be disentangled from the damage that was sustained as a result of the defendant’s negligence.
General damages
466․On the alternative case, the plaintiff claimed that her compensable injuries were as follows:
(a) Significant actual physical hurt after discharge on 1 August 2019 until Emergency Surgery on 2 August 2023, including actual physical hurt from:
(i) Increasing pain from around 6:00pm or 7:00pm on 1 August 2019;
(ii) Extreme pain at 2:00am when the plaintiff started getting shooting pains into the left side of her arm into her shoulder;
(iii) Pain from vomiting at 2:00am;
(iv) After trying to go back to bed after taking pain relief waking up in excruciating pain;
(v) Excruciating pain between waking up and waiting for her parents to arrive and arriving at Calvary Hospital at 6:38am on 2 August 2019;
(vi) Excruciating pain between arrival at Calvary Hospital at 6:38am and being booked for emergency surgery at 9:35am on 2 August 2019;
(vii) Excruciating pain while undergoing the ultrasound at 8:40am on 2 August 2019 which confirmed the rupture;
(viii) Excruciating pain while waiting to be put under a general anaesthetic which commenced sometime after 10:00am on 2 August 2019. (A total of about 8 hours between excruciating pain commencing at 2:00am and surgery at 10:00am).
(b) Actual physical hurt from the emergency life saving surgery on 2 August 2023, as opposed to what would have been an orderly informed surgery about having either a salpingostomy or salpingectomy;
(c) Emotional harm from the fear of the possibility of death from about 2:00am on 2 August 2019, knowing that her symptoms were similar to the 2015 life threatening ectopic rupture, while at home in an uncontrolled environment until general anaesthetic commenced at about 10:00am on 2 August 2019, a period of about 8 hours.
(d) Emotional harm from being aware that her remaining fallopian tube was rupturing meaning she may never be able to have a natural birth again;
(e) Emotional harm for a psychiatric injury of either a post traumatic stress disorder or a chronic adjustment disorder and depressive condition;
(f) Emotional harm for ongoing psychiatric symptoms, including regular nightmares for more than 4 years since 2 August 2019;
(g) Emotional harm for a material contribution to the breakdown of the plaintiff’s marriage from the plaintiff’s lack of support during her discharge from hospital on 1 August 2019;
(h) Loss of amenities of life for the past 4 years from the DSM-V psychiatric injury and the emotional harm suffered above;
(i) Loss of amenities of life for the past 4 years from the actual physical harm arising out of the lack of sleep from the regular nightmares which can be disabling and effect [sic] energy levels and motivation;
(j) Future emotional harm for permanent ongoing psychiatric residual symptoms (residual symptoms accepted by Dr Allnutt and Dr Ventura);
(k) Future emotional harm for relapses of unknown duration for future triggering events;
(l) Future loss of amenities of life from the PSM-V [sic] from a psychiatric injury or symptoms of a psychiatric injury, or relapses after a triggering event;
(m) Future loss of amenities of life from actual physical harm arising out of the lack of sleep from regular nightmares effecting [sic] energy levels and motivation; and
(n) Future loss of amenities of life from actual physical harm arising out of psychiatric symptoms suffered following a relapse from a triggering event.
467․I accept that the plaintiff should be compensated for her increasing pain from around 6:00pm or 7:00pm on 1 August 2019, although I note that the plaintiff was able to doze, albeit fitfully from this time until 2:00am. I also accept that the plaintiff should be compensated for the severe pain which she suffered from 2:00am until she was administered pain medication (Fentanyl) at approximately 8:00am in the Hospital on 2 August 2019. Noting that the plaintiff gave no evidence as to her pain levels after 8:00am, I do not accept that the plaintiff is entitled to be compensated for any pain after the administration of that medication.
468․I have found that the plaintiff suffered from a psychiatric illness, characterised by depression, anxiety and post-traumatic symptoms as a result of the defendant’s negligence. The plaintiff should be compensated for this injury and its consequences (in particular, loss of sleep and nightmares).
469․As outlined above, Dr Allnutt and Dr Ventura differed in their opinions as to the plaintiff’s prognosis: Dr Allnutt initially considered the plaintiff’s prognosis to be poor, but on a further examination, considered her prognosis to be much improved, albeit that some symptoms remained. In contrast, Dr Ventura considered that the plaintiff was in remission.
470․I find that this difference can be explained by the passing of time between Dr Allnutt’s first examination of the plaintiff, Dr Ventura’s examination of the plaintiff and then Dr Allnutt’s second examination. As Dr Ventura explained in her report, it is likely that the plaintiff’s symptoms were more severe at the time that she was first examined by Dr Allnutt, and the plaintiff’s symptoms had then largely resolved by the time she was examined by Dr Ventura. I accept Dr Allnutt’s evidence that, at the time of his last examination, the plaintiff had “continued to manifest a number of symptoms” that he considered to be “of a post-traumatic nature”, which he believed “were in keeping with what one would expect, and residual symptoms”. However, I agree with Dr Ventura that it is likely that this simply represented a re-triggering of symptoms as a result of the stress of the court hearing, and the consequent need to dwell on, and to some extent, re-live the original trauma that was suffered.
471․I find that the plaintiff’s prognosis is good, and that her primary risk of relapse is in the event of further obstetric or gynaecological complications in the future. As the plaintiff is planning on undergoing IVF, I accept that there is a real prospect of a relapse of the plaintiff’s psychiatric illness in the future. With treatment, I consider that the plaintiff has a positive prognosis in the event of any such relapse.
472․I do not accept that the plaintiff should be compensated for “emotional harm from being aware that her remaining fallopian tube was rupturing, meaning she may never be able to have a natural birth again” (particular (d) above). This is harm which could only be compensable if I had accepted that a salpingostomy could have been successfully performed (either on the plaintiff’s first admission, or at or after 7pm, when the plaintiff’s pain increased).
473․The Amended Statement of Claim particularised the plaintiff’s marriage breakdown as being “due to [the plaintiff’s] failure to conceive”. However, in the written submissions, the breakdown was described as being caused by the failure of the plaintiff’s former husband to support her. I am not satisfied that the plaintiff has demonstrated the defendant’s negligence caused her marriage breakdown. Accordingly, I do not accept that compensation should be awarded with respect to this matter.
474․Under s 99 of the Wrongs Act, I may consider earlier decisions of this Court, or other courts, for the purpose of establishing the appropriate award for general damages. However, the parties were not able to identify any cases that are comparable to the present, nor have I identified any comparable decisions.
475․I will award the plaintiff $100,000 for general damages, of which 90% is attributed to past 10% is attributable to the future.
Future psychological treatment
476․The plaintiff claims future psychological treatment as follows:
(i) 52 x Psychological counselling sessions: - $11,700;
(ii) 3 Consultations with a Psychiatrist per year for three years: - $3,150;
(iii) Anti-depressants for 3 years @ $60 per month: - $2,160;
(iv) 4 x GP Consultations per year @ $90 each for 3 years: - $1,080.
Total: $19,090
477․In view of my finding that the plaintiff’s psychiatric illness is in remission, and my acceptance that her prognosis is good, I will not allow this claim in full. However, noting that there is a real prospect of a short-term re-triggering of her symptoms in the event of future obstetric and/or gynaecological complications in the future, I will allow a buffer of $5,000 for future psychological treatment.
Past economic loss
478․The plaintiff claimed past economic loss of income for two weeks being five days of recreation leave which she used after the salpingectomy surgery and a further five days off work on the anniversary of the surgery. I do not accept the claim for the plaintiff’s time off work immediately following the surgery. The defendant’s negligence did not cause the plaintiff to require a salpingostomy. Her condition was such that the performance of a salpingostomy was inevitable. The plaintiff has not established that she would have required less time off work if the salpingostomy had been performed on 1 August 2019, rather than as occurred on 2 August 2019. Accordingly, I will not allow this claim.
479․The plaintiff also claimed for her time off work on the anniversary of these events. The plaintiff said that she was crying “inconsolably at work”. She said “I took a couple of – I think it was a week after that”. The plaintiff did not have this response to her previous ectopic pregnancy, or to previous miscarriages. I am satisfied that the time that the plaintiff required off work was caused by her trauma related mental illness, rather than because of the grief of losing the pregnancy and/ or her fertility.
480․Examination of the plaintiff’s work records demonstrates the plaintiff only required three days off work on the anniversary of the events (Thursday 30 July 2020, Monday 3 August 2020 and Tuesday 4 August 2020). Her wage (inclusive of superannuation) was $352 per day. I will allow damages in the sum of $1,056 for the loss of those three days’ work. The plaintiff did not claim interest on past economic loss.
Future economic loss
481․The plaintiff claimed a buffer for future economic loss of $50,000 for future relapses. Even when the plaintiff was suffering from acute post traumatic stress disorder on the anniversary of the events, she required only three days of leave. I will award a more modest buffer of $1,000.
Past out of pocket expenses
482․The plaintiff claimed the following past out of pocket expenses:
(a)Fees for two consultations with Dr Felicity Brims ($295 and $100 respectively);
(b)One fee from Ultrasound Care ($460);
(c)Fees for three consultations at Ochre Medical Centre Casey ($90, $73.95 and $90 respectively); and
(d)One fee from Dr Ahuja ($150).
483․Dr Brims is an IVF specialist and was seen by the plaintiff to discuss her fertility options post salpingectomy. The plaintiff acknowledged that this claim should not be allowed if her primary claim failed.
484․Each of the other past out of pocket expenses likewise relate to the plaintiff’s post-operative physical symptoms and her fertility (including the referral for IVF). These claims must be likewise disallowed as they do not arise on the basis of the liability which I have found.
Total damages
485․The total sum of damages to be awarded will be:
General damages: $100,000
Interest on general damages: $11,250
Past economic loss: $1,056
Future economic loss: $1,000
Future psychological treatment: $5,000
Total: $118,306
Costs
486․I will hear the parties on costs.
Orders
487․For the above reasons, the following order is made:
(1)Judgment is entered for the plaintiff in the sum of $118,306.
| I certify that the preceding four hundred and eighty-seven [487] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Baker Associate: Date: 31 October 2025 |
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