Ironmonger v Gunnedah Shire Council
[2021] NSWPIC 48
•26 March 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Ironmonger v Gunnedah Shire Council [2021] NSWPIC 48 |
| APPLICANT: | Robert Ironmonger |
| RESPONDENT: | Gunnedah Shire Council |
| MEMBER: | Ms Jane Peacock |
| DATE OF DECISION: | 26 March 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Death benefit compensation; accepted psychological injury resulted in attempted suicide; respondent disputed liability on the basis that the treatment provided to the deceased at hospital was so inexcusably bad as to break the chain of causation between the psychological injury and death, such as to amount to a novus actus interveniens; Mahony v J Kruschich (Demolitions) Pty Ltd [1985] HCA 37; (1985) 156 CLR 522 and City of Sydney v Estate of Belinda Jane Griffey and Anor (No. 1) [2008] NSWWCCPD 114 considered; Held- not satisfied on the evidence that the treatment at hospital was so inexcusably bad such as to break the chain of causation; award for the applicant. |
| DETERMINATIONS MADE: | 1. The Respondent pay the legal personal representative of the estate of the late Mr Bryan Ironmonger the sum of $765,500 on behalf of the estate for the benefit of the estate. 2. The Respondent pay the funeral costs at the applicable gazetted rate. |
STATEMENT OF REASONS
BACKGROUND
By Application to Resolve a Dispute (the application) Mr Robert Ironmonger (the applicant) seeks death benefit compensation under section 25 of the Workers Compensation Act 1987 (the 1987 Act) resulting from the death of his son the late Mr Bryan Ironmonger who died on 10 March 2017 and whose death is alleged to result from psychological injury deemed to have occurred on 28 February 2017.
The respondent is Gunnedah Shire Council (the respondent). The respondent was insured for the purposes of workers compensation by StateCover Mutual limited (the insurer).
The respondent disputed liability for the claim.
ISSUES FOR DETERMINATION
It is agreed that the deceased worker, Mr Brian Ironmonger (the deceased) died on 10 March 2017. It is agreed that the deceased suffered a psychological injury deemed to have occurred on 28 February 2017 as a result of work. The parties agree that what remains in dispute is whether death resulted from injury.
In the event liability is determined in favour of the applicant, the amount of the lump sum benefit is agreed to be $765,650 and the order would be for payment of this sum to the legal personal representative of the estate of the late Brian Ironmonger for the benefit of the estate. It is agreed that in this event that an order for payment of the funeral expenses would follow at the gazetted rate.
PROCEDURE BEFORE THE COMMISSION
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
EVIDENCE
Documentary Evidence
The following documents were in evidence before the Commission and were admitted by consent and considered in making this determination:
(a) The Application and attached documents;
(b) The Reply and attached documents.
Oral Evidence
There was no application to adduce oral application and no application in respect of cross-examination.
FINDINGS AND REASONS
It is not in dispute that the deceased suffered a psychological injury deemed to have occurred on 28 February 2017 as a result of work.
On that day he returned home and attempted to take his own life by way of overdose. The drugs he took were very strong and he took them in large amounts.
He was rendered unconscious and when found was conveyed by ambulance to Gunnedah Hospital later that night was transferred to Tamworth Base Hospital.
On 10 March 207 he died in Tamworth Hospital.
The Coroner on 16 January 2018 found the cause of death established as follows:
“1(a) Direct Cause: Pulmonary Embolism
1(b) Antecedent Causes:2. Other significant condition: Morbid Obesity”
The respondent submitted that death benefit compensation is not payable in this case because there was a novus actus interveniens, a break in the chain of causation, which arose from the medical treatment the deceased received at Tamworth Base Hospital. The respondent’s counsel submitted that the treatment the deceased received at the Tamworth Hospital was so inexcusably bad that it broke the chain of causation. The respondent counsel submitted “..in the respondent’s case the inexcusably bad treatment that the deceased received was with respect to the prophylaxis of and treatment of deep vein thrombosis, or thromboembolism.”
The applicant submitted that the evidence does not support a finding that the treatment at Tamworth Base Hospital was so inexcusably bad as to break the chain of causation and that death on 10 March 2017 resulted from the accepted psychological injury on 28 February 2017.
This case is a very sad one and condolences have been expressed to the applicant, the deceased’s father. However, it must be decided on the evidence and in accordance with the law.
The legislation in section 25 of the 1987 Act provides that a death benefit is payable when death results from injury.
The leading authority is the High Court case of Mahoney v J Kruschich (Demolition) Pty Ltd [1985] HCA 37; (1985) 156 CLR 522 (Mahoney) to which both parties referred.
The Respondent’s counsel referred to the case of Council of the City of Sydney v Estate of Belinda Jane Griffey and Anor (No. 1) [2008] NSWWCCPD 114 (Griffey).
In Griffey, Deputy President Byron helpfully summarised applicable case law as follows:
“Causation
The Law
It is necessarily true that Ms Griffey would not have required medical treatment in the Hospital, ‘but for’ the injuries sustained in the motor vehicle accident. The logical character of this connection is clear. However, the sine qua non essence of the proposition, does not of itself establish a causal connection between the separate incidents of the motor vehicle accident and what occurred in the Hospital, or establish a legal liability for payment of compensation. “… the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain.” (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 at 463 (‘Kooragang’)). See also March v Stramare (E & MH) Pty Ltd [1991] HCA12; (1991) 171 CLR 506 (‘March’), per Mason CJ at [23] where he stated, “… the ‘but for’ test does not provide a satisfactory answer in those causes in which a superseding cause, described as a novus actus interveniens, is said to break the chain of causation which would otherwise have resulted from an earlier wrongful act.”
In this matter the Council’s position is that the chain of causation of injury was broken by a novus actus interveniens, being the negligence of the Hospital in the medical treatment reasonably sought for injuries sustained in the motor vehicle accident. It submits that the separate and distinct injury that arose by reason of that regime of treatment is not compensable under the Workers Compensation legislation. On the other hand the Estate and the Hospital submit essentially, that the chain of causation was not broken and that injury occurred and developed in a factually causative way in circumstances that evolved throughout the treatment administered to her, in seeking to alleviate the injuries she sustained in the accident.
The question to be asked is twofold: if there is a chain of causation, was it broken to the extent that it was rendered inoperative, or “functus officio” as described in Davies v Swan Motor Co (Swansea) Ltd [1947] 2 KB 291 at 318 (Davies), or was the initiating ‘action’ still operative and the subsequent events part of the history or “circumstances in which the cause operates”, Minister of Pensions v Chennell [1947] KB 250 at 256 (Chennell)? These are questions of fact, having regard to the circumstances of the case.
The test of causation under the Workers Compensation legislation is whether the incapacity or medical treatment resulted from the work injury sustained. In Kooragang, Kirby P stated at 462, Sheller and Powell JJA agreeing, in considering the principles of causation in the jurisdiction, that since English authority in 1909:
“… it has been well recognized in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act.”
However, the Court of Appeal stated that the importation of notions of “proximate cause” [alone] by the use of the phrase “results from” are not now, accepted.
His Honour continued at 463-464:
“The result of the cases is that each case where causation is in issue in a workers compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. … What is required is a common sense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury … is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions. Applying the second principle, which Hart and Honore [H.L.A. Hart & Tony Honorĕ, Causation in the Law 2nd ed., (New York: Oxford University Press, 1985)] identify, a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus. Or it may be explained in terms of want of sufficient connection. But in each case, the judge deciding the matter will do well to return as McHugh JA advised, to the statutory formula and ask the question whether the disputed incapacity or death ‘resulted from’ the work injury which is impugned.”
The concept of the ‘chain of causation’ is demonstrated by the facts in Kooragang. The worker developed back pain in 1981 while he had been climbing frequently up and down from his truck. He was diagnosed with advanced discogenic disease that was aggravated by excessive movement, as described. He was off work for some nine months. After returning to work he appeared to cope well, but in May 1983, while lifting bags of cement, pain increased down his leg. He was certified fit for light duties. However, none were available and he ceased work and received payment of workers compensation. His own doctor considered that he was distressed because of the delay in resolving his claim. In May 1986, his doctor found him to be very severely depressed because of the chronicity of his condition. This continued for several years and in March 1992 his workers compensation payments ceased. On 8 June 1992 he died of a myocardial infarction. The trial judge found that the acceleration of his cardiovascular disease and myocardial infarction resulted, in a relevant sense, from his back injury sustained in 1981. On appeal, the Court of Appeal found that there was an unbroken chain of undisputed evidence and consequently, upheld the trial judge’s finding that the worker’s death had resulted from his back injuries at work in 1981 and 1983.
“Questions of causation are not answered in a legal vacuum. Rather, they are answered in the legal framework in which they arise.” (Chappel v Hart [1998] HCA 55; [1998] 195 CLR 232, per Gaudron J at [7] (Chappell). See also Kooragang per Kirby P at 464). In the instant matter, the legal framework is the workers compensation legislation. Most of the authorities in relation to the matter of novus actus interveniens are necessarily, of qualified practical relevance to a claim for workers compensation, which resides within a particular statutory framework. Many of such authorities are concerned with common law claims. The facts and circumstances of each case are invariably different. In Vairy v Wyong Shire Council (2005) 223 CLR 422, Gleeson CJ and Kirby J warned:
“It is understandable that in the search for consistency, comparisons with similar cases will be made. However, as Lord Steyn said in Jolley v Sutton London Borough Council [2000] 1 WLR 1082 at 1089, decided cases in this area are fact-sensitive, and it is a sterile exercise involving a misuse of precedent, to seek the solution to one case in discussions on the facts in other cases.”
What needs to be established to give rise to a novus actus interveniens is, upon a common sense evaluation of the causal chain in the instant case, a “new cause” which has disturbed the sequence of events, and which can “be described as either unreasonable or extraneous or extrinsic” (per McHugh JA in Bennett v Minister of Community Welfare (1992) 176 CLR 408 at 428 (Bennett) quoting Lord Wright in Lord v Pacific Steam Navigation Co Ltd (The Oropesa) [1943] 1 All ER 211 (The Oropesa)). Before the novus actus can be regarded as the sole cause of the ultimate incapacity, it must be demonstrated that the incapacity that would have resulted from the injury sustained in the motor vehicle accident has been replaced by a different and intervening cause that produced the ensuing incapacity.
In The Oropesa, Lord Wright stated, as referred to in Migge v Wormald Bros. Industries Ltd [1972] 2 NSWLR 29 at 36:
“To break the chain of causation it must be shown that there is something which I will call ultroneous, something unwarrantable, a new cause coming in disturbing the sequence of events, something that can be described as either unreasonable or extraneous or extrinsic.”
Hart and Honorĕ describe “the problem” thus, at page 134:
“The type of problem we consider, stated in the traditional causal language, involves three terms. In its simplest form the question is whether certain harm is the consequence of a certain wrongful act given the presence of a third factor, e.g. whether the death in hospital of a person negligently run down by defendant is the consequence of defendant’s negligent act, given some third factors such as that [the] deceased was an alcoholic and delirium tremens flared up after the accident; that he contracted scarlet fever from the attending physician; that a surgeon was negligent in performing an operation on him or, mistaking him for another patient, operated on the wrong side; or, taking pity on his sufferings, deliberately killed him, or that on the way to hospital he was struck by a falling tile. In all these instances we assume [sine non qua] that the [initial] wrongful act and the third factor were each a necessary condition of the harm, but in each instance a causal problem is raised by the presence of the third factor: the law must decide whether or not the third factor negatives causal connection.”
In Bailey amp [1999] NSWSC 1391; 1 Ors v Redebi Pty Limited 1 Ors [1999] NSWSC 918 (13 September 1999) (Bailey), in determining a claim for common law damages, Santow J said at [99];
“It will generally speaking, not be possible to establish a novus actus interveniens unless:
(a) the breach is shown to have had no causative effect, even of the ‘but for’ kind, because the injury would have occurred, or the same risk of it, even if the duty had been performed; compare Chappel v Hart [1998] HCA 55; (1998) 156 ALR 517; 72 ALJR 1344 (where the minority would have concluded that a surgeon’s failure to warn did not materially contribute to the plaintiff’s injury),
(b) the intervening act or decision was not a reasonably foreseeable consequence of the negligent act in the sense of being ‘in the ordinary course of things the very kind of thing likely to happen as a result of the defendant’s negligence’ (per Mason CJ in March v E & M H Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 at 517-8).
(c) there was no positive duty to take precautions against the happening of the intervening act or that class of act; contrast the finding of the House of Lords in Reeves v Commissioner of Police of the Metropolis [1999] UKHL 3 WLR 363 that there was a positive duty of care to guard against that very act – suicide by a prisoner – so precluding any defence based on novus actus interveniens (or volenti) despite the autonomous nature of the prisoner’s decision.”
In Alexander v Cambridge Credit Corporation Ltd (1987) 9 NSWLR 310 at 361, McHugh JA (as he then was), citing Mahony v J Kruschich (Demolitions) Pty Ltd [1985] HCA 37; (1985) 156 CLR 522 (Mahony), said:
“Mahony makes it clear (at 529-530) that the exacerbation of an injury by a negligent medical treatment though reasonably foreseeable, may constitute a novus actus interveniens if the treatment is inexcusably bad or improper.”
However, it is instructive to consider the context in Mahony from which the statement made by McHugh JA was derived. In that case, the High Court said at 529-530:
“In particular circumstances, minds may differ as to whether a subsequent injury was foreseeable or whether it is too remote to be regarded as a consequence for which an earlier tortfeasor may be held liable. When an injury is exacerbated by medical treatment, however, the exacerbation may easily be regarded as a foreseeable consequence for which the first tortfeasor is liable. Provided the plaintiff acts reasonably in seeking or accepting the treatment, negligence in the administration of the treatment need not be regarded as a novus actus interveniens, which relieves the first tortfeasor of liability for the plaintiff’s subsequent condition. The original injury can be regarded as carrying some risk that medical treatment might be negligently given: see Beavis v Apthorpe (24); Moore v A.G.C. (Insurance) Ltd (25); Lawrie v Meggitt (26); Price v Milawski (27); Katzman v Yaeck (28). It may be the very kind of thing which is likely to happen as a result of the first tortfeasor’s negligence: cf. per Lord Reid in Dorset Yacht Co. v Home Office (29). That approach is consistent with the view taken in workers’ compensation cases that the total condition of a worker whose compensable injury is exacerbated by medical treatment, reasonably undertaken to alleviate that injury, is to be attributed to the accident (see Lindeman Ltd v Colvin (30), per Dixon J; Migge v Wormald Bros. Industries Ltd. (31), per Mason J.A.; on appeal (32)), although medical negligence or inefficiency [whether by commission or omission] can be held to amount to a new cause of incapacity in some circumstances: Rothwell v Caverswall Stone Co. (33); Hogan v Bentinck Colleries (34). In the last-mentioned case Lord Reid, in dissent, expressed the opinion that there is a break in the chain of causation when a doctor is guilty of such negligence as would make him liable in damages. We think, with respect, that that test is too rigid. Some degree of medical negligence in the treatment of an injury may well be a reasonably foreseeable result of the act or omission by which that injury was inflicted, and then no clear line can be drawn to limit the original tortfeasor’s liability to exclude the consequences of the medical negligence.
However, in the ordinary case where efficient medical services are available to an injured plaintiff, the original injury does not carry the risk of medical treatment or advice that is ‘inexcusably bad’ (Martin v. Isbard (35)), or ‘completely outside the bounds of what any reputable medical practitioner might prescribe’ (Lawrie v Meggitt (36)), or ‘so obviously unnecessary or improper that it is in the nature of a gratuitous aggravation of the injury (South Australian Stevedoring Co. Ltd. V Holbertson [[1939] SASR] (37)) [‘Holbertson’] or ‘extravagant from the point of view of medical practice or hospital routine’: Hart and Honore, Causation in the Law (1959), p. 169. In such a case, it is proper to regard the exacerbation of a plaintiff’s condition as resulting solely from the grossly negligent medical treatment or advice, and the fact that the plaintiff acted reasonably in seeking and accepting the treatment or in following the advice will not make the original tortfeasor liable for that exacerbation.”
The High Court in Mahony had earlier stated (at 528) that for a novus actus interveniens to break the chain of causation, it must be possible to draw a line clearly before a liability, “that would not have occurred but for the wrongful act or omission of a tortfeasor and that is reasonably foreseeable by him, is treated as the result of a second tortfeasor’s negligence alone: See Chapman v Hearse (18).” The Court went on to say that whether such a line can and should be drawn is very much a matter of fact and degree. The Court said that where it is not possible to draw a clear line, the first tortfeasor may be liable in negligence for a subsequent injury and its consequences although the act or omission of another tortfeasor is the more immediate cause of that injury (528-529).
In its reference to Holbertson, the High Court in Mahony quoted the following statement made by the Full Supreme Court of South Australia, at 264, in which that Court attempted to illustrate how the distinction might be made:
“As a matter of commonsense we think that a mistake of this kind is a sequela of the injury. When a man gets his arm broken all that he can do is to get it set by a competent practitioner, and he has to take the risk of the doctor making a mistake. If the treatment is so obviously unnecessary or improper that it is in the nature of a gratuitous aggravation of the injury, it may be possible to find the cause of the incapacity without relating it back to the original injury, but in the case of slight negligence (the kind of mistake that anyone is likely to make, although it may have to be paid for), we think that it is impossible to say that the chain of causation is broken, or that the new act has given a fresh origin to the after consequences.”
In Griffey the Deputy president overturned the arbitrator’s finding that there was no break in causation caused by treatment at hospital between the injuries the worker received in a motor vehicle accident and subsequent death.
Each case will turn on its own facts.
The question for determination in this case therefore becomes: was the treatment that the deceased worker received at the Tamworth Base Hospital so inexcusably bad or improper as to constitute a novus actus interveniens which broke the chain of causation between the attempted suicide as a result of the accepted psychological injury on 28 February 2017 and death on 10 March 2017?
Turning to an examination of the evidence in this case.
There is little dispute about the factual sequence of events.
The dispute lies in the competing expert opinions.
The respondent qualified on their behalf an independent medical expert (IME) Associate Professor (A/Prof) Colquhoun, Consultant Cardiologist and Associate Professor of Medicine who provided four reports dated 12 October 2018, 12 March 2020, 3 May 2020 and 2 November 2020 respectively.
The applicant qualified on his behalf two IMEs, namely A/Prof Haber, a consultant cardiologist and physician. A/Prof Haber has provided three reports in this matter, dated 3 October 2019, 11 August 2020, and 15 October 2020.
The applicant also qualified A/Prof Raftos, an expert in Emergency Medicine, who provided three reports dated 26 November 2019, 24 March 2020 and 20 July 2020 respectively.
All the above expert’s reports were admitted by consent. Essentially each expert over the course of their reporting has been given access to the full clinical records of Gunnedah and Tamworth Hospitals and has had the opportunity to comment on each other’s opinion.
Starting with the opinion of A/Prof Colqhoun, the IME qualified on behalf of the respondent who was the first IME to provide an opinion.
In his first report dated 12 October 2018 A/Prof Colquhoun opines as follows:
“specifically, the overdose was a necessary condition for the chain of events which led to the massive pulmonary embolus and death. The overdose was a necessary, but not a sufficient condition, to cause death by massive pulmonary embolus(due to saddle embolus which is a large clot in the main pulmonary artery obstructing blood flow to the lungs)….
Had there not been a drug overdose then there would not have been prolonged bed rest, intubation and ventilation, there would not have been pneumonia due to lying flat in the intensive care unit. There would not have been the development of a very large deep vein thrombosis which led to the massive pulmonary embolism and death. It takes a number of days for clot to occur in the deep veins and following a surgical event or a medical event, such as pneumonia, a DVT usually takes 7 days or more to present as a pulmonary embolism.”
The above was in answer to questions posed by the respondent’s lawyers.
A/Prof Coloquhoun considered that a third question needed to be asked which he framed himself as “Was there adequate medical care and di this play a role in the in-hospital death for a massive pulmonary embolism in Mr Bryan Ironmongerr?” and he answered his own question as follows:“If an adequate dose of Enoxparin had been given, there would have been greater than 90% chance DVT and pulmonary emboli would not have happened. Had there been the usual care of following up on the provisional diagnosis of pulmonary emobolism with appropriate testing; then with modern treatment, again, there would have been probably a 90% plus prevention of massive pulmonary emboli and the death of
Mr Bryan Ironmonger.In short, there was unacceptable sub-therapeutic prophylaxis and unacceptable lack of appropriate testing and treatment when pulmonary embolism considered by medical staff.”
In a report dated 12 March 2020 A/Prof Colquhoun has the opportunity to comment on the opinions of A/Prof Haber and A/Prof Raftos.
In that report he writes:
“40mg per day of Enoxaparin is underdosing and is not according to the NPS nor the Queensland Government Guidelines for appropriate management. It is important to reiterate that the patient was grossly obese at 173 kilograms with a BMI of 60 and the prophylactic does of Enoxaparin given to him was for standard person.”
This report does greatly not assist determination of the issue in this case because it refers to Queensland government guidelines which do not apply in New South Wales (NSW). There is no evidence that there are equivalent guidelines for doctors practising in NSW hospitals.
A/Prof Colquhoun provided a further report dated at the request of the respondent’s lawyers. He was sked to comment on a report of A/Prof Raftos dated 24 March 2020 and the VTE Risk Assessment tool issued by NSW Health.
In this report A/Prof Colquhoun makes the following point:
“Clearly the patient had inadequate dose of prophylactic heparin and the dose was started probably 5 days into admission. It was suspected that the patient had a pulmonary embolus at least 5 days prior to Mr Ironmonger’s death and certainly it was written in the notes “consider PE” 2 days prior to his death.”
A/Prof Colquhoun makes the point that the VTE assessment tool says that specialist advice should be sought when BMI greater than 35. He states:
“Clearly in the case of Mr Ironmonger the NSW VTE tool was not adhered to, specialist opinion was not obtained, and it is unclear if the consultant who was looking after Mr Ironmonger was aware of his management during his clinical course prior to his death from massive pulmonary embolism.”
A/Prof Colquhoun goes onto say:
“Importantly, when pulmonary embolism was suspected, good practice management from a Junior Medical officer would have led to scanning of legs with ultrasound and of lungs with a CTPA or VQ scan. With adequate assessment this would have led to adequate treatment with high dose heparin and consideration would have been given to thrombolytic therapy. Again, in terms of dosage specialist advice should have bee sought and sought with a matter of urgency because of the high risk of death in this situation.”
A/Prof Colquhoun provided a further report dated 2 November 2020.
In this report A/Prof Colquhoun refers, among other things, to a Clinical Cardiology review as follows:
“A Clinical Cardiology review by Belohlavek et al in 2013 discussed the mortality rate of acute pulmonary embolism according to European Guidelines and found that Massive Pulmonary Embolism has an overall mortality rate as high as 65%. In addition, with treatment mortality drops to approximately 20%.”
This is important when considering whether the causal chain was broken by treatment at the hospital which could be considered so inexcusably bad. The deceased was treated at the standard dosage rate on a daily basis. There is no consensus in the expert opinion as to the efficacy or safety of increasing the dosage rate for patients at the extremes of BMI. Moreover the mortality rate on treatment does not drop to zero, that is, while pulmonary embolism necessarily results in death, treatment does not necessarily guarantee survival.
A/Prof Colquhoun goes onto reiterate:
“Specialist practitioners who are looking after patients with potentially life threatening illnesses in hospital ought to be aware of Guidelines from professional bodies and also be aware of much of the original research and review articles.
To reaffirm this, the NSW heath tool to help junior doctors manage VTE prophylaxis states for total body weight less than 50 kilograms or greater than 120 kilograms or a BMI greater than 35 to seek specialist advice. In the case of Mr Ironmonger this was not done! All doctors are well aware or at least should be aware that in extremes of body weight volume distribution of drugs is different and there can be over or under prescribing as was the case here. Under prescribing is likely to have played a major role contributing to his death.”
The applicant relies on the opinions of two Independent Medical Experts (IME), A/Prof Haber and A/Prof Raftos.
A/Prof Haber is a consultant cardiologist and physician, A/Prof Haber has provided three reports in this matter, dated 3 October 2019, 11 August 2020, and 15 October 2020.
It is noted that the parties agree that the deceased was treated with 40mg of Enoxparin “Clexane” once a day.
A/Prof Haber notes in his first report that he did not have the medication sheets but:
“the standard does for prohylaxis which is well known by doctors is 40mg of Enoxparin “clexane” once a day”. The dosage is independent of weight.”
A/Prof Haber is asked “was the cause of death causally related to overdose of medication taken by Mr Ironmonger on 28 February 2017?” and he answered as follows:
“Yes. As a result of over dosage he was unconscious requiring intubation and ventilation and he was lying in hospital. He developed massive pulmonary embolism which occurred ten days after his overdosage. It is a well know fact that in spite of prophylaxis with Enoxaparin people may still develop venous thrombosis and pulmonary emboli. An obese man is even more likely candidate to develop pulmonary embolism especially if he is immobilised in hospital which occurred in this case. I did not see the actual medication sheet in which the dose of Enoxaparin was listed. I note that more Enoxaparin was given as well as thrombolysis when he collapsed due to pulmonary embolism but again I did not see the actual details of this medication in his notes.”
A/Prof Haber is asked: “Moreover, can it fairly be said that the treatment of Mr Ironmonger was “inexcusably bad”, “completely outside the bounds of what any medical practitioner might prescribe” and “grossly negligent”? He answered as follows:
“Looking at the hospital notes I did not find anything to consider it to be “grossly negligent”, but see my earlier comments.
Professor Coluquhoun complains about the hospital management and refers to the dose of Enoxaparin being inadequate purely because it did not prevent the development of pulmonary embolism. This is well known to occur anyway in spite of prophylactic treatment.
He also commented Enoxaparin was given subcutaneously when he had acute massive pulmonary embolism, but he was also given Thrombolysis which is the correct treatment in this situation.
He also commented on 5 March 2017 D-Dimer was ordered but the result was not followed up. In that respect at that time, he developed atrial fibrillation which was also certainly due to a pulmonary embolism causing it, but one can be “very smart” in retrospect.
Once again on 7 March he had right shoulder pain which may have been due to pulmonary embolism especially as at that time he developed atrial fibrillation again. In retrospect one can assume that this was due to minor pulmonary embolism, but he was treated for infection which was also likely to develop and also could be presenting with a pain in the right shoulder.
In retrospect one can be more certain about what was happening, but treating a patient at that time it was not so clear and he certainly was a very difficult patient to manage in all respects, and the hospital in my opinion did as much as was reasonable at the time.”
A/Prof Haber summarised his opinion as follows:
“….he attempted suicide as a result of which he was unconscious requiring intubation and ventilation. He was initially admitted to Gunnedah hospital and then that night he was transferred to Tamworth Base hospital where he was improving but had almost certainly prolonged immobilisation which predisposes to development of pulmonary embolism/thrombosis (clot) in the lung. The standard dose of Enoxaparin is 40 mgs daily which he had. It provided, as it is sometimes the case unsuccessful to prevent clotting. He developed a massive pulmonary embolism and died in spite of satisfactory resistive measures, from a condition known to have 100% mortality.
The coroner confirmed the presence of a massive pulmonary embolism.”
A/Prof Haber provided a further report dated 11 August 2020 where he answered a further series of questions posed by the Applicant’s lawyers.
He notes that the therapeutic dose of Clexane for patients in extremes of weight which the deceased was is subject to different opinions. That is, there is no consensus by experts on this issue.
He is asked to respond to A/Prof Coloquon opinion expressed in his report dated 12 March 2020:
“in his report dated 12 March 2020, A/P Colquhoun stated ;”Had the prophylactic Enoxaparin been given appropriately on day 1 of admission and at the higher dose the fatal pulmonary embolism may not have occurred.” Please explain whether you disagree with A/p Colquhoun’s conclusion, and whether you agree with A/P Raftos opinion’. A/P Haber answered;
“In the case of Mr Ironmonger with the prolonged immobilisation and intubation as well as his gross obesity, whatever the dose of Clexane would be administered, he still would be at very high risk of getting fatal embolism his prognosis was extremely poor.”
A/Prof Haber makes the point that there is significant difference of expert opinion as to whether the dosage of the drug should be adjusted for patient whose BMI exceeds 35. A/Prof Haber said:
“There is no record in the notes to say whether or not a specialist opinion was sought to assess the dose of Claxane to be given. It seems to me that no specific dosage is agreed upon in patients whose BMI is greater than 35.”
This is an important point when weighing up the evidence as to whether the treatment at Tamworth Base Hospital should be considered so “inexcusably bad” as to break the chain of causation.
A/Prof Haber considered that:
“From what I see the hospital has made great efforts to save this man who had probably ideation, excessive drug overdosage, extreme of obesity and probable chest infection. It is not surprising that he died from pulmonary embolism in spite of whatever anti-coagulant dosage would have been administered.”
In his final report dated 15 October 2020 A/Prof Haber comments on his review of the hospital notes and the review of three publications on the prevention of VTE disease. He comments:
“I could not see in any of the above publications specific advice as to the dosage of Enoxaparin (Clexane) to be given for morbidly obese patients.
I note in Tamworth hospital medication sheets that Heparin 5000 units were injected twice daily from 1 March 2017 to 7 March 2017 and from 7 March to 9 March Enoxaparin 40mg was given at night and a larger dose was given on 10 March when he had terminal pulmonary embolism.
I have studied again all the above documents and I have no reason to change my reports.”
The applicant also relies on the opinion of A/Prof Raftos, an expert in Emergency Medicine. He provided three reports dated 26 November 2019, 24 March 2020 and 20 July 2020.
In his first report dated 26 November 2019 A/Prof Raftos notes that “Mr Ironmonger was morbidly obese and sedated and bed-bound in the Intensive Care Unit. These factors meant that he was at high risk for VTE (Venous thromboembolic disease). This meant he required prophylactic treatment with daily subcutaneous clexane and a mechanical device.
A/Prof Raftos notes:“the records indicate that this treatment was provided. A sequential compression device was applied to his legs and he was given clexane 40mg daily.”
A/Prof Raftos refers to MIMS, which he says is the standard prescribing text in Australia, in respect of the dosing of Clexane. He quotes from MIMs as follows:
“Prohylaxis of venous thrombosis. Prophylaxis against thromboembolism should be tailored according to the patient’s risk. Risk factors include age over 40 years, history of deep vein thrombosis or pulmonary embolism, surgery, and other trauma, prolonged immobilisation, cardiac disease, obesity, malignancy, varicose veins, hypercoagulable states, pregnancy and the puerperium, oral contraceptives, severe infection, inflammatory bowel disease.
a) High risk patients. In patients with high risk of thromboembolism, a clexane dosage of 40mg ...should be administered subcutaneously once daily. In high risk patients undergoing surgery, the initial dose should be given approximately 12 hours preoperatively. …
Obese patients. Obese patients are at a higher risk for thromboembolism, the safety and efficacy of prophylactic doses in obese patients (BMI> 30kg/m2) has not been fully determined and there is no consensus for dose adjustment. These patients should be observed carefully for signs and symptoms of thromboembolism.”
On this basis A/P Raftos opines: “the appropriate prophylactic dose of clexane in Mr Ironmonger’s case was therefore 40mg daily”. The parties agree that this was given. A/Prof Raftos notes the dosage is independent of weight.
A/Prof Raftos notes that prophylactic treatments for VTE do not abolish the risk of death. He says:
“All of the prophylactic treatments for VTE in hospital patients reduce, but do not abolish, the incidence of deep vein thrombosis and pulmonary embolism. A small proportion of patients receiving appropriate prophylaxis will develop VTE despite the appropriate treatment.
A/Prof Raftos opined as follows:
“Mr Ironmonger was administered the currently accepted standard does of clexane for prophylaxis of VTE. This was appropriate treatment and was neither inexcusably bad nor completely outside the bounds of what any medical practitioner might prescribe.”
A/Prof Raftos opinion is that “Mr Ironmonger developed fatal pulmonary embolism despite appropriate prophylactic treatment.”
When asked “Do the hospital records suggest any other “inexcusably bad” treatment of the late Mr Ironmonger, including failure to intervene earlier on suspicion of embolus?” he answered:
“No.
There were no symptoms or signs to suggest the possibility of deep venous thrombosis or pulmonary embolism before 10 March 2017. All of Mr Irnomonger’s other conditions, including the agitation associated with his overdose, the aspiration pneumonitis caused by vomiting with a reduced level of consciousness, and the atrial fibrillation caused by the physiological stress of his condition in association with his cardiomyopathy, were appropriately treated. None of the treatment provided to Mr Ironmonger at Gunnedah Hospital and Tamworth Hospital was inexcusably bad.”
In his report dated 24 March 2020 A/Prof Raftos is asked to comment on the opinion of A/Prof Colquhoun contained in his report dated March 2020. He notes that doctors in NSW do not use the Queensland Government Guidelines. He further notes that the Australia Prescriber article to which A/Prof Colquhoun referred was published in October 2017 and was therefore not relevant to the treatment in February 2017.
He says that when doctors in Australia prescribe medications they consult standard prescribing texts such as MIMS or AMH. He refers to the guidelines in both and notes that “the appropriate prophylactic dose of Clexane in Mr Ironmongers case was therefore 40mg daily.”
He considers:
“Mr Ironmongers medical treatment at Gunnedah Hospital and Tamworth Hospital in February and March 2017 was appropriate, adequate and in accordance with accepted competent medical practice. None of his medical care was inexcusably bad.”
In his final report dated 20 July 2020. In this report he reiterates that the guidelines which guide practice are MIMS and AMH. The recommended dose for VTE prophylaxis is 40mg daily of Clexane which Mr Ironmonger was given. A/Prof Raftos notes:
“There is no strong evidence that the dose should be increased for obese patients or that it is benefit to increase the dose.”
A/Prof Raftos disagrees that a PE was suffered before 10 March 2017. He says:
“Dr Colquhoun has suggested that an episode of hypoxia on 5 March 2017 was caused by pulmonary embolism. There is good evidence that the hypoxia was actually related to continued sedation and aspiration pneumonitis which was treated with intravenous antibiotic. There is no evidence to suggest that Mr Ironmonger suffered from pulmonary embolism prior to 10 March 2017.”
For a break in causation to be found, the treatment given at Tamworth Hospital must be found to be so “inexcusably bad” that the death results from the treatment and not the injury. Here there are competing expert opinions which must be weighed in the balance with the factual evidence. The experts disagree on whether the dosage for VTE was adequate to prevent the pulmonary embolism which was the direct cause of death. When all of the evidence is weighed in the balance I prefer the opinion of A/Prof Raftos and A/Prof Haber to that of A/Prof Collquhoun. It is clear that there is no consensus about whether the VTE prophylaxis dosage should be adjusted, and indeed to what levels, for obese patients. The deceased’s prognosis was poor. He was treated at the standard dose for VTE which did not prevent death by pulmonary embolism. Whilst massive pulmonary embolism is necessarily fatal it is not necessarily preventable at either the standard dose or at a higher dosage about which there are no clear guidelines in NSW for obese patients. The guideline is clear that the patient at risk of VTE must be treated with 40mg Clexane daily and with the use of a mechanical device. This was in fact the treatment that was undertaken by Tamworth Hospital. There is no consensus about the efficacy or safety of dosage adjustment for obese patients. Hence there was no guideline in NSW about dosage adjustment that could have better informed the practice of the Doctors at Tamworth Hospital in February and March 2017. When all of the evidence is weighed in the balance, I am not satisfied on the balance of probabilities that the treatment afforded by Tamworth Base Hospital was so inexcusably bad as to break the chain of causation between injury on 28 February 2017 and death on 10 March 2017. Accordingly the death benefit compensation is payable and I will make orders in accordance with the agreement of the parties in this regard. In the event liability is determined in favour of the applicant, the amount of the lump sum benefit is agreed to be $765,650 and the order would be for payment of this sum to the legal personal representative of the estate of the late Brian Ironmonger for the benefit of the estate. It is agreed that in this event that an order for payment of the funeral expenses would follow at the gazetted rate.
Jane Peacock
MEMBER
26 March 2021
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