Juengling v Wells - [2009] WASCA 125

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: JUENGLING -v- WELLS [2009] WASCA 125

CORAM: McLURE JA
MILLER JA
NEWNES JA

HEARD: 5 FEBRUARY 2009

DELIVERED : 17 JULY 2009

FILE NO/S: CACV 19 of 2008

BETWEEN: NORMAN JUENGLING
Appellant
AND
SONIA MAREE WELLS
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :MAZZA DCJ
Citation  :WELLS -v- JUENGLING [2008] WADC 18
File No  :CIV 335 of 2006

Catchwords:

Negligence - Whether anaesthetist negligent in failing to use nasogastric tube to decompress respondent's stomach before intubation - Whether finding of breach of duty of care by primary judge based on erroneous findings of fact - Whether there should be a new trial - Turns on own facts

Legislation:

Nil

Result:

Appeal allowed

Category: B

Representation:

Counsel:

Appellant: Mr D R Clyne
Respondent: Mr G Droppert

Solicitors:

Appellant: Minter Ellison
Respondent: Hoffmans

Case(s) referred to in judgment(s):

Bennett v Minister of Community Welfare (1992) 176 CLR 408
Bolam v Friern Hospital Management Committee [1957] 1 WLR 582
CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 80 ALJR 458
Pateman v Higgin (1957) 97 CLR 521
Rogers v Whitaker (1992) 175 CLR 479
Roman Catholic Church Trustees for the Diocese of Canberra and Goulburn v Hadba (2005) 221 CLR 161
Tame v New South Wales (2002) 211 CLR 317
Warren v Coombes (1979) 142 CLR 531
Wells v Juengling [2008] WADC 18

McLURE JA: I agree with Newnes JA that the appeal should be allowed. However, I would not order a retrial. Instead, I would dismiss the respondent's action against the appellant. These are my reasons for that course.
The facts are set out in the reasons for judgment of Newnes JA. There are two limbs to the appellant's ground of appeal which is in the following terms:
The learned trial judge erred in fact and in law in finding the … appellant was negligent in failing to decompress the … respondent's stomach using a nasogastric tube … such finding being based on erroneous conclusions in respect of:
(a)the expert evidence as to the utility and effectiveness of nasogastric tubes in decompressing a patient's stomach;
(b)a perception that there was a greater risk of aspiration in respect of this respondent arising from the volume of fluid in her stomach.
Neither limb clearly identifies the issues. Having regard to the written submissions, the first limb is to the effect that, based on the expert evidence, it was not open to the trial judge to make a finding of breach. Alternatively, if the finding was open, Dr Donnelly's evidence should have been rejected.
The second limb is to the effect that the trial judge erred in taking into account the volume of intravenous fluid administered to the respondent in determining the volume of fluid in her stomach, a matter on which there was no evidence.
In summary, the relevant facts are as follows. The respondent was…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Juengling v Wells

Details

AGLC: Juengling v Wells [2009] WASCA 125
Case: [2009] WASCA 125
Decision Date: 17 JULY 2009

CaseChat Overview and Summary

In the matter of Juengling v Wells, the court examined whether an anaesthetist had acted negligently in not using a nasogastric tube to decompress the stomach of the respondent before intubating her. The case was heard in the Supreme Court of Victoria, where the primary judge ruled that the anaesthetist had indeed breached his duty of care by failing to decompress the respondent's stomach. The appeal by the anaesthetist, Dr Juengling, raised questions about the correctness of the primary judge's findings of fact and whether a new trial was warranted. The court's decision hinged on the interpretation of medical evidence and the specific circumstances of the case.

The legal issues before the court were whether the anaesthetist's failure to use a nasogastric tube constituted a breach of duty and if the primary judge's conclusions were based on accurate findings of fact. Dr Juengling argued that the primary judge had erred in his interpretation of the medical literature and expert opinions. The court needed to assess whether the anaesthetist's decision not to decompress the stomach was reasonable in the context of the available evidence and the particular circumstances of the case.

The court considered the evidence provided by Dr Gibbs and Dr Donnelly, both experts in anaesthesia. While Dr Gibbs testified that there was no consensus on the necessity of using a nasogastric tube and that it was not mandatory, Dr Donnelly opined that such decompression was almost obligatory in certain cases. The primary judge found that decompression was not obligatory in all cases but often employed, particularly when the stomach contents were liquid. The judge concluded that in the respondent's case, given the amount of fluid in her stomach, decompression by a nasogastric tube would have been both safe and effective. The court upheld the primary judge's findings, stating that the decision to decompress the stomach depended on the specific circumstances and that the anaesthetist had indeed been negligent in this instance.

The appeal was ultimately dismissed, and the original decision of the primary judge was affirmed. This means that Dr Juengling was found to be liable for the respondent's injuries resulting from the failure to decompress her stomach before intubation. The court's decision emphasized the importance of considering the specific medical context and circumstances when determining the standard of care in medical negligence cases.

Orders

Orders of the court

Appeal allowed

Background

Background to the litigation

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Evidence

Evidence Before The Court

At [249] his Honour referred to the evidence of Dr Gibbs to the effect that the relevant medical literature did not state that use of decompression by means of an NGT was mandatory before an RSI and that there was no consensus amongst anaesthetists as to whether it should be used or not. His Honour also referred to what he described as Dr Donnelly's contrary opinion. His Honour noted [250] that Dr Gibbs did not say the procedure was totally ineffective and nor did Dr Gibbs say that it was accepted medical practice not to decompress the stomach using an NGT before an RSI. His Honour concluded:Upon a consideration of all of the evidence it seems to me that while decompression is not obligatory in all cases of a patient who has an acute abdomen and must undertake a rapid sequence induction, it is often employed, with good effect, more likely in cases where the stomach contents are liquid. In the end, it depends upon the circumstances of each case whether the procedure should be used. …In my opinion, the passing of a nasogastric tube would have safely and effectively decompressed the plaintiff's stomach.To sum up on this issue, in my opinion the defendant breached his duty to take reasonable care of the plaintiff by failing to decompress her stomach by a nasogastric tube. I find that a reasonable anaesthetist in the defendant's position would have seen that in the circumstances of the plaintiff there was a risk of serious injury, if cricoid pressure failed, which although unlikely, was by no means far-fetched or fanciful. Further, the alleviating action of decompressing the plaintiff's stomach by use of a nasogastric tube was, in my view, practical and likely to be effective and not pose any undue risk to the plaintiff. Subject to what I will say shortly about causation, I am satisfied on the balance of probabilities that the defendant was negligent in failing to pass a nasogastric tube to empty the plaintiff's stomach [251] ‑ [254]. (emphasis added) While the trial judge did not expressly reject the evidence of Dr Donnelly on the point, it appears clear that his Honour did not accept Dr Donnelly's view that decompression by means of an NGT is a 'necessary' step in an RSI ([235], (ts 134)) and that it was 'almost obligatory' as a matter of professional practice amongst anaesthetists ([239], (ts 95)). Rather, his Honour came to a finding which fell somewhat short of Dr Donnelly's view; namely, that whether such decompression should be undertaken depends upon the particular circumstances of the case. It is clear that his Honour did not consider such decompression was mandatory in every case of acute abdomen where the stomach contents were liquid. But having found that it was 'the circumstances of [Ms Wells]' which required Dr Juengling, in the exercise of reasonable care, to decompress Ms Wells's stomach using an NGT, his Honour did not state what those particular circumstances were. However, when regard is had to his reasons as a whole it is, I think, clear that his Honour considered that the relevant circumstance was that, as a result of the intravenous fluid she had received, Ms Wells's stomach contained a substantial amount of fluid, giving rise to an increased risk of serious injury, and that that was, or should have been, known to Dr Juengling before he commenced the intubation.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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