Panagoulias (by his next friend Fiona Averil Panagoulias) v The East Metropolitan Health Service [No 4]
[2017] WADC 118
•31 AUGUST 2017
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: PANAGOULIAS (by his next friend FIONA AVERIL PANAGOULIAS) -v- THE EAST METROPOLITAN HEALTH SERVICE [No 4] [2017] WADC 118
CORAM: O'NEAL DCJ
HEARD: 7 - 31 MARCH 2017 & 1 MAY 2017 (FURTHER SUBMISSIONS RECEIVED 12 JUNE 2017)
DELIVERED : 31 AUGUST 2017
FILE NO/S: CIV 2791 of 2010
BETWEEN: PETER PANAGOULIAS (by his next friend FIONA AVERIL PANAGOULIAS)
Plaintiff
AND
THE EAST METROPOLITAN HEALTH SERVICE
First DefendantJANE ELIZABETH POPOVIC as Executrix of the Will of EMIL POPOVIC
Third Defendant
Catchwords:
Evidence - Implied assertions - Hearsay
Medical negligence - Delayed treatment of bacterial meningitis - Breach of duty - Causation - Damages - Turns on own facts
Legislation:
Civil Liability Act 2002 s 5B, s 5C, s 5PB
Result:
Judgment for plaintiff as against the first defendant
Action as against the third defendant dismissed
Damages assessed
Representation:
Counsel:
Plaintiff: Mr T Lampropoulos & Mr H Quail
First Defendant : Mr G Donaldson & Mr T C Russell
Third Defendant : Mr R Weinstein & Mr G P Bourhill
Solicitors:
Plaintiff: Shine Lawyers
First Defendant : State Solicitor for Western Australia
Third Defendant : Avant Law Pty Ltd
Case(s) referred to in judgment(s):
Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420
Bonnington Casting v Wardlaw [1956] AC 613
Brocx v Mounsey [2010] WASCA 196
Fairchild v Glenhaven Funeral Services Ltd [2002] 3 WLR 89
Kember v Thackrah [2000] WASCA 198
March v (E & MH) Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506
Pollitt v The Queen (1992) 174 CLR 558
Powney v Kerang and District Health [2014] VSCA 221, (2014) 43 VR 506
Ritz Hotel Ltd v Charles of The Ritz Ltd (1988) 15 NSWLR 158
Rogers v Whittaker [1992] HCA 58 [5] – [6]; (1992) 175 CLR 479
Sharman v Evans (1977) 138 CLR 563; (1977) 13 ALR 57
South Metropolitan Health Service v Westcott [2016] WASCA 225
Strong v Woolworths Ltd [2012] HCA 5; (2012) 246 CLR 182
Thatcher v Charles (1961) 104 CLR 57
Villasevil v Pickering [2001] WASCA 143; (2001) 24 WAR 167
Walton v The Queen (1989) 166 CLR 283
Wright v Minister for Health [2016] WADC 93
Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485
Table of Contents
Introduction
Background
The hospital records for 6 October 2007
Bacterial meningitis
Therapeutic Guidelines
Crisis and aftermath
Issues on the pleadings
Breach of duty of care - Issues
Mr Popovic
RPH
Breach of duty - Consideration
Breach - Mr Popovic
Breach – the first defendant
When should treatment have begun?
Causation
Causation - Mr Popovic
Causation - first defendant
The Aronin study
Section 5C(2) CLA
Damages
Loss of earning capacity
Contingencies
Future care
General damages - pain, suffering and loss of amenities of life
Conclusion
O'NEAL DCJ:
Introduction
In 2005 the plaintiff Peter Panagoulias was diagnosed with a brain tumour. Although it was benign, the tumour had to be removed. In 2006 and 2007 he underwent surgery for that purpose.
The first surgery was not entirely successful in removing the tumour. The second surgery in September 2007 had unfortunate complications. One of those complications is at the heart of this action. Three weeks after the second surgery Mr Panagoulias developed bacterial meningitis. He has been left with disabilities that are properly described as tragic.
In this action the plaintiff, by his next friend, alleges that his surgeon, Mr Popovic, failed to warn or advise him in a timely way to seek emergency attention for what turned out to be a symptom of meningitis. It is further alleged that the first defendant, representing Royal Perth Hospital (RPH) where the plaintiff ultimately sought help, failed to exercise proper care in diagnosing and treating the plaintiff's meningitis. It is alleged that, but for the delay in treatment, the plaintiff would not have suffered the irremediable consequences of that illness, a severe brain injury.
As will become apparent, the resolution of some issues at trial has been more difficult than is ordinarily the case because of the lack of testimony of those potential witnesses most closely involved in these events. In part that is because the severe acquired brain injury suffered by the plaintiff meant that he could not realistically be expected to give evidence on his own behalf. Next, it will be observed that the third‑named defendant here is the executor of the estate of the neurosurgeon Emil Popovic. Mr Popovic died in March 2011. Finally, of those several living and capable members of the RPH staff who were involved in the treatment of Mr Pangoulias, just one was called to give evidence, and she claimed a limited recollection of these events.
Background
Despite the lack of first‑hand testimony about matters going to liability issues, many facts were common ground or undisputed. The following background facts, except where otherwise noted, are either undisputed or established by evidence that I accept.
The plaintiff was born in 1967. He was 38 years old in 2005. He had by then achieved a significant qualification and experience in a specialised accounting field. In about 2003, in the course of his employment, he met the woman who would become his wife and the mother of his child. His wife Fiona Panagoulias is also qualified as an accountant.
They married in February 2005. Their daughter, Anna, was born later in 2005.
Prior to his injuries the plaintiff was a very social person. He enjoyed a range of leisure activities like gardening, fishing and cooking, home handy work including renovating and tinkering with cars, and enjoyed his work as well. Together with Fiona Panagoulias in 2005, and then in 2006 with her and their new child, he travelled for extended vacations and family visits.
In December 2005, the plaintiff was diagnosed with a brain tumour. He had been experiencing headaches for some time and, in the course of an investigation of the cause of those headaches, a CT scan organised by his ear, nose and throat specialist revealed the tumour.
The plaintiff was referred to a neurosurgeon, Mr Popovic.
The tumour was determined to be a craniopharyngioma, a benign tumour arising among the cells near the pituitary stalk. While the tumour needed to be removed, the plaintiff and his wife were advised that this kind of tumour was 'relatively easily' managed. The phrase 'relatively easily' must of course be understood in the particular context of brain surgery, with all its significant inherent risk.
On 23 January 2006 Mr Popovic performed a left supra orbital (above the eye socket) craniotomy and a subtotal resection of the pituitary craniopharyngioma. About 90% of the tumour mass was removed. Necessarily, but unfortunately, a significant part of the plaintiff's pituitary stock was removed at the same time.
The pituitary gland is a critical link in the transmission of the hormonal messages that control the function of organs in the body. One of the consequences of the plaintiff's loss of pituitary function was that he developed a condition called diabetes insipidus. His pituitary gland was no longer supplying the hormone vasopressin, needed to regulate the body's salt and water balance. While that particular condition has been described as 'mild', it had the consequence that the plaintiff had to be careful to ensure that his fluid intake was adequate so as to avoid an imbalance of sodium.
Among other things, he also lost the ability to produce cortisone. Cortisone plays an important role in the body's response to physical or emotional stress, in particular in acting as an anti-inflammatory.
The plaintiff was prescribed various oral replacement hormone therapies including Thyroxine and Cortisone.
Notwithstanding the issues arising from lost pituitary function, the plaintiff made a good recovery. He returned to work and the other activities that he had enjoyed prior to the operation. From March 2006 he was consulting an endocrinologist, Professor Bronwyn Stuckey, for replacement therapy for his hormonal problems, in particular a fertility problem. He and his wife hoped to have another child.
In September and October 2006 he and his family had a lengthy overseas trip.
The headaches began to return however, along with some vision problems. Once again Mr Popovic was consulted. He advised that it would be necessary to deal with the part of the tumour that remained.
The second surgery was scheduled for 14 September 2007. This time, as Mr Popovic explained, he intended to access the tumour through a different point, 'transphenoidally'. That involved an entry through the nose and sinuses, to gain access to the tumour within the brain cavity.
The plaintiff was admitted to the Mount Hospital for the surgery on 13 September. The surgery was performed the next day. It was not a success. In the course of the surgery Mr Popovic nicked the plaintiff's carotid artery causing worrying bleeding. The attempt to remove the tumour was abandoned.
The nicked or lacerated artery was treated by 'tamponade', that is, by compression on the wounded area. In this case a piece of muscle taken from the plaintiff's abdomen was used, along with surgical materials described as a Duragen patch, Duraseal glue, and a 'fat graft', a piece of fat also taken from the plaintiff's abdomen to then fill the entire sphenoid (the sinus located in the bone adjacent to the optic nerve and the pituitary gland). Another smaller perforation that had been inadvertently made in the cribriform plate in the anterior cranial fossa (one of three large depressions in the floor of the cranial cavity) was also packed with what was described as a 'small fat graft'.
The brain and spinal cord are protected by a tough membrane, the dura mater. Among other functions, the dura mater protects the brain and cerebral spinal fluid from infection. It is not possible to resection (that is, to remove) a craniopharyngioma without breaching and passing through the dura mater. It is however entirely possible to damage the carotid artery prior to breaching the dura mater.
The entry through the sphenoidal wall that resulted in the damage to the carotid artery may well have made an opening in the dura mater. That is, the operation may have reached that stage before it was abandoned, although Professor Bryant Stokes, an eminent neurosurgeon who reviewed the operation notes, was not able to say positively that it had. The breach or 'defect' in the anterior cranial fossa may also have pierced the dura mater, although this cannot be proved.
The plaintiff was moved from the Mount Hospital to RPH. At RPH he was placed in the intensive care unit where bleeding could more easily be monitored, if that occurred. Under anaesthetic he was given an angiogram. The bleeding was found to have stopped, but it was also determined that the plaintiff had suffered a pseudo-aneurysm as a result of the laceration of the carotid artery. A pseudo-aneurysm is what is described as a 'false' aneurysm. Although the blood vessel wall is damaged, bleeding is contained within the surrounding tissues of the vessel. It is nonetheless a matter of concern because of the risk of rupture and uncontrolled bleeding.
This problem was treated with a 'coil' while at RPH. That is, an effort was made to seal off the pseudo-aneurysm using a catheter. The procedure was only partly successful.
While in the ICU the packing was removed from the plaintiff's sinuses, although not, it would appear, the tamponade. He was discharged home on 20 September 2007.
Cerebrospinal fluid (CSF) is the colourless liquid secreted from the blood into the ventricles of the brain, that serves chiefly to maintain uniform pressure within the brain and spinal cord. A transphenoidal resection of a craniopharyngioma will frequently cause at least some leakage of CSF because of the need when carrying out the resection to breach the dura mater.
There is, however, no suggestion in any of the plaintiff's hospital records to which I was referred at trial, from the time of the operation, of any observation of CSF leakage, by any medical practitioner, at any stage. Rather, it has been assumed by most everyone associated with this litigation, including most of the expert witnesses, that there was a CSF leak as the avenue for the infection that ultimately developed.
The assumption may be correct, although there was little evidence at trial as to the ways in which bacterial meningitis may establish itself, and no evidence that eliminated or tended to eliminate other possible sources or causes of the infection here. In a sense, that is almost irrelevant. The fact is that there was always reason to assume that the plaintiff was at risk of infection, including bacterial meningitis, given the surgery he had undergone and the chance of an inadvertent perforation of the dura mater. It is common ground that he did ultimately develop bacterial meningitis, despite the fact that bacteria could not later be cultured. Like almost everyone else then, I will assume that there was a breach that allowed some kind of leak of CSF.
When the plaintiff left hospital on 20 September, he was still understandably uncomfortable as a result of the surgery. His condition however, was otherwise unremarkable, except perhaps for a fairly constant and consistent mucous discharge from his nose. The plaintiff had been advised not to blow his nose, but this discharge meant that he was constantly wiping it.
Further investigation and treatment of the pseudo-aneurysm and the tumour was still necessary. A follow-up appointment with Mr Popovic was arranged for 26 September 2007. The plaintiff attended with his wife. At this consultation, Mr Popovic explained the surgery that he had performed, and the problem that had arisen that made it necessary to abandon the procedure. Mr Popovic explained to them that, in order to stop the blood loss from the nicked artery, a piece of fat had been removed from the plaintiff's stomach and inserted through his nose.
When the plaintiff complained about the discharge from his nose, Mr Popovic prescribed antibiotics. Mr Popovic observed the discharge and in his notes he described it as 'green snot'. A course of Bactrim was prescribed and taken by the plaintiff over the course of the next five days. Bactrim was an appropriate antibiotic treatment if a bacterial sinus infection was reasonably suspected.
In the course of the consultation on 26 September, the plaintiff and his wife were advised of the concern that Mr Popovic had about the pseudo‑aneurysm. Mr Popovic told them that it was necessary to treat this condition before any further surgery was done for the tumour. A follow‑up angiogram was arranged for 5 October 2007 to further investigate the pseudo‑aneurysm.
On the morning of 5 October, Fiona Panagoulias took her husband to RPH and dropped him off there so that an angiogram could be performed. While the plaintiff was in hospital that day he made two calls to Mr Popovic, of a minute or less. Mr Popovic also saw the plaintiff while he was in RPH that day, although that does not appear to have been a formal review.
Mrs Panagoulias returned later that afternoon to pick her husband up at around 3.45 pm. Apart from a sore groin as a consequence of the procedure for the angiogram, and the discharge from his nose, there was nothing unusual about the plaintiff's condition. Later however, while the plaintiff was cooking dinner, he sneezed. When he sneezed, something that appeared to be a lump of 'tissue stuff' came out of his nose. Fiona Panagoulias observed this. She and the plaintiff were understandably concerned about it and they telephoned Mr Popovic.
It was not uncommon for the plaintiff or his wife to call Mr Popovic to discuss the plaintiff's condition or treatment. They had Mr Popovic's mobile phone number. The telephone records show that between 16 and 24 September the plaintiff or his wife contacted Mr Popovic by telephone 10 times, for calls ranging from around half a minute to seven and a half minutes. The calls were charged in blocks of 30 seconds, so the length of the calls recorded represents a maximum time.
Mrs Panagoulias was involved in her husband's care and treatment. She normally attended at consultations with Mr Popovic. The evidence of Fiona Panagoulias was that certainly she understood that they should call Mr Popovic if anything surprising or out of the ordinary occurred.
Telephone records show that the plaintiff called Mr Popovic at 4.07 pm on the afternoon of 5 October. The telephone call lasted between two and half and three minutes. The call was made by the plaintiff in the presence of Fiona Panagoulias. She remembered hearing her husband explain about the sneeze, and the piece of 'fatty tissue' (a description tacitly accepted by Mrs Panagoulias in cross‑examination) that came out of his nose, and she remembered her husband's enquiry, 'what shall I do'. She did not hear Mr Popovic's side of the conversation.
After the call the plaintiff told his wife that he had been advised to take the thing that had been expelled from his nose, and put it in a jar of water in the refrigerator, so that it could be observed by Mr Popovic at the next consultation. She said that her husband did not mention anything else that Mr Popovic had said. Otherwise, the plaintiff appeared 'quite normal' to his wife. He cooked dinner.
Shane Heaney, another witness who knew the plaintiff and had seen him earlier that week described him as being around that time, 'fine … in good spirits … the old Peter'.
Later in the evening, after their daughter had been put to bed, the plaintiff and his wife went to sleep at around 9.00 pm. At that time Mrs Pangoulias said she noticed 'nothing out of the ordinary' about her husband. He was however still wiping his nose, as he had from at least the time of his discharge from RPH on 20 September.
Between 2.00 am and 3.00 am Mrs Panagoulias woke up and found the plaintiff complaining, she said, about having 'quite a severe headache'. He had taken some Panadeine Forte (a strong analgesic) for it. She observed that he was uncomfortable and struggling to settle back to sleep.
Mrs Panagoulias was not particularly alarmed by what she saw and learned about her husband's headache. As she said in evidence, and as the medical records show, severe headaches had been a regular part of the plaintiff's life for years. Panadeine Forte was his usual medication for them. At times he had taken up to eight Panadeine Forte tablets per day.
At between 5.00 am and 6.00 am, when their daughter woke up, Fiona Panagoulias left her husband in the bed with the thought that he might be able to 'sleep better' on his own. When she came back to check him she could see that there was no improvement and he continued to complain that his headache was very bad. He told her that his headache was getting worse and that Panadeine Forte was not helping. It appears from subsequent hospital notes that, although he did manage to have some sleep after taking Panadeine Forte in the early morning hours, he took more Panadeine Forte at about 8.30 am. Not long after that time he asked his wife to call Mr Popovic.
At 9.07 am Fiona Panagoulias called Mr Popovic and told him that her husband had had a very uncomfortable night, that he was in a lot of pain, and that he had a really bad headache. She said that Mr Popovic responded by saying to her something to the effect of 'well you need to take him into the emergency department. There could be something going on with his aneurysm thing and he just needs to be in the hospital over the weekend so that they can observe him'. She said that Mr Popovic told her to go to the Emergency Department (ED) at RPH and that he would telephone ahead and let the hospital know that they would be coming. He did not refer to any advice offered to her husband the previous afternoon. This call lasted for between a minute and a minute and a half according to the phone record.
While this was occurring the plaintiff's friend Jason Heaney had arrived with his daughter for a planned joint family outing. Fiona Panagoulias explained about her husband's problem, apologised, and sent Mr Heaney away. She then packed her husband and daughter into the car and drove to RPH ED. She took with her the jar containing the material that had been sneezed out of the plaintiff's nose the night before.
RPH is now and was in 2007 a large modern metropolitan hospital. It had and has a large well-equipped and seemingly well-staffed ED that is open 24 hours per day. Night shifts, at least for the registrars (qualified doctors training in the specialty of emergency medicine), ran from 10.00 pm until 8.30 am.
The only member of the RPH staff who gave evidence said that, while she 'couldn't remember very clearly', the usual staffing 'would have' included two to three emergency medicine registrars. There 'would have been' four to five junior doctors, either residents or interns. In addition, there would have been doctors, normally residents, available on call for every specialty including neurosurgery and infectious diseases.
The staff complement on night shifts was normally greater than day shifts because of the greater number of presentations. Friday and Saturday night shifts were normally particularly busy, because of the large number of people presenting with problems as a consequence of drug and alcohol abuse. While there is no reason to doubt any of this general evidence, there was no evidence presented of the actual staffing levels or patient load at the times relevant to this action. I accept however that the same facilities and the same kinds of treatment should have been available to someone presenting to the ED day or night.
Mrs Panagoulias recalled that when they got to emergency and presented themselves at the triage window, she had a sense that, contrary to what they expected, the hospital staff did not anticipate their arrival. Despite that, her evidence does not suggest they had any extended wait before being seen. Mrs Panagoulias said however that she recalled that at this stage the plaintiff then called Mr Popovic. The telephone records do not appear to support that. Then, she recalled, her husband was taken through the door into the triage section of emergency while she and her daughter waited outside. The jar with the sample in it went along with the plaintiff, never to be seen or heard of again. No record made that day suggests that any doctor at RPH was aware of the jar and its contents. Mrs Panagoulias said she was later told by a nurse that it had been thrown out, because 'the jar was not sterile' and testing could not therefore be done on the contents.
In fact, as telephone records show, Mr Popovic had called RPH at 9.28 am. Immediately after that he also directly called the RPH neurosurgical registrar Dr Kern who was on duty at the time. Telephone records record a two minute call to Dr Kern's mobile telephone. Dr Kern did not give evidence about this telephone call, but the telephone records and the note of the triage nurse at RPH show that Mr Popovic did what he told Mrs Panagoulias he would do.
The hospital records for 6 October 2007
The records of RPH for the plaintiff's admission on 6 October 2006 were tendered into evidence. Where I refer to them below I have in many cases used translations of abbreviations when available, or I have added in parentheses an explanation of a reference that was provided by a witness, Dr Carolyn Wilson. The bare facts revealed by those records are not controversial. These records were effectively the only evidence as to the care and treatment the plaintiff received that day at RPH, and when he received it. The records cannot provide any sensible answer about why things were not done at critical times throughout this day. Instead, they raise many questions of that kind.
A triage nursing assessment was prepared when the plaintiff first presented in triage at 9.53 am. That note records that the plaintiff's breathing, colour and skin condition were unremarkable, that he was alert but had a rapid pulse. He told the triage nurse of a history of a headache that is recorded as 'pain – headache ‑ occipital'. The occipital region is at the back of the skull.
A note refers to the plaintiff's previous diagnosis of an aneurysm following the brain tumour surgery three weeks prior. The plaintiff described a 'now severe headache' to the triage nurse that was '10' on a scale of 10 and told the nurse that Panadeine Forte taken at 8.30 that morning had had little effect. A handwritten note records a Glasgow Coma Scale score of 15, the highest degree of consciousness measured by eye, verbal and motor response.
The assessment also records the plaintiff's presentation with a 'stiff neck and head pounding', as well as the fact that the neurological register is 'aware'.
The triage assessment resulted in the plaintiff being given a categorisation of 'level 2' on a scale of 1 ‑ 5. This scaled assessment is used in EDs throughout Australia and New Zealand. Category '2' signifies a potentially life‑threatening illness, requiring the patient to be seen by a doctor within 10 minutes of arrival.
The next nursing notes were made at 10.20 am. They record that the plaintiff was complaining of a 'severe throbbing headache – neck stiffness – photophobia'. The note also says 'went to bed with headache – woke with worse headache this A.M. No relief from Panadeine Forte'. Again the Glasgow Coma Scale score noted is 15. Notwithstanding that state of complete consciousness, the plaintiff's recent history of brain surgery and the symptoms then observed, pointed to alarming conclusions that warranted urgent medical intervention.
At 10.30 am the fact that the plaintiff was being reviewed by the resident medical officer (later shown to be Dr Wardman) is noted, together with the fact that the plaintiff was commenced on an intravenous saline drip. These nursing notes then follow:
10.45
Patient given 10 milligrams intravenous Maxolon (a nausea drug)
10.48
Patient given 2.5 milligrams intravenous morphine
11.00
Patient's post narcotic observations done, patient's wife brought in to sit with patient
11.38
Patient given 2.5 milligrams intravenous morphine
11.48
Post narcotic observations done, patient much more comfortable – patient for V/A and MSV
12.15
Patient having consultant and resident medical officer review…
13.30
PO (by mouth) Panadeine Forte given – 1,000 ml intravenous saline 2/24 (that is, infused over two hours)
14.00
Patient complaining of head pain 7/10 – drifting back to sleep
14.08
UIA V NAD, MSU, urine
14.10
5 milligrams PO Oxycodone given
14.15
SIB (seen in bed) Dr Wilson for head CT V/B (visit by) wife
15.00
Lumbar puncture performed by neurosurgical registrar Dr Kern
15.47
Returned from head CT
16.25
Pain 7/10. 2.5 milligrams intravenous morphine given
16.30
Pain 4/10. 2.5 milligrams intravenous morphine given
16.40
Pain 7/10 but is asleep. Woken easily
17.30
2 g Intravenous Meropenem given
This last note at 5.30 pm in the afternoon, more than seven and a half hours after the plaintiff presented at the ED, records the first treatment that the plaintiff received for a bacterial infection. A treatment dose of hydrocortisone was not given until 8.50 pm.
Other observations recorded through the day included, understandably, the plaintiff's temperature. On first presenting he was recorded as having a temperature of 37.6°degrees Centigrade (°C). A 'normal' temperature is 37°C, equivalent to what may be remembered by some as 98.6 degrees Fahrenheit. Based on the evidence of various medical experts, the temperature of 37.6°C, while not severe, is recognised as demonstrating a fever. By 11.38 am the temperature had jumped to 38.3°C. From the copy records tendered into evidence it is not clear whether by 2.15 pm the plaintiff's temperature was 38.1°C or 38.7°C, and no evidence was given about this. At 2.40 pm it is clearly recorded as 38.7°C, where it remained until the observation at 4.40 pm.
The observations of the resident medical officer, Dr Wardman, are also recorded at 11.00 am, for the review that occurred earlier.
Dr Wardman records a complaint of an 'occipital headache increasing overnight (unable to sleep)'. It will be seen that this reference to sleep, if taken literally, is or may at least arguably be contrary to another doctor's history taken later. Dr Wardman records 'neck stiffness' but, contrary to what appears in the nursing notes, notes an absence of photophobia - the abnormal intolerance of light. The note refers to the recent neurosurgery and the coiling of the pseudo‑aneurysm. There is a reference to rhinorrhoea and the yellow-green mucus flowing from the plaintiff's nose since his operation and 'had cough now resolved'.
Dr Wardman records the plaintiff's presenting complaints as,
headache increasing greater than usual over the last 8 hours and now 6/10.
-associated neck stiffness, flexion normal
-nil photophobia.
In this section Dr Wardman also notes, 'patient was reviewed yesterday by Dr Popovic'.
The examination Dr Wardman conducted revealed the elevated temperature of 37.6°C, but also records that the plaintiff's chest is clear, with no wheezing.
Later in the notes he records his clinical impression. He puts forward alternative diagnoses: subarachnoid haemorrhage and meningitis. The later hypothesis was based on the plaintiff's temperature and the yellow‑green mucus discharge.
Dr Wardman records five points of a plan for the plaintiff's treatment, including a discussion with both the neurosurgical registrar and the neurosurgeon, the administration of analgesics, fluids, and regular medications.
Given the history of recent surgery and its complications, as well as the concern about subarachnoid haemorrhage, it was obviously prudent to consult with the neurosurgeon. For reasons that remain unknown, Dr Wardman was not able to speak with Dr Kern, the neurosurgical registrar, until about an hour later.
And, despite the differential diagnosis of meningitis, Dr Wardman did not propose to consult an infectious diseases specialist. Nor did his plan include a CT scan or lumbar puncture.
At 12.00 pm Dr Wardman records the results of his discussion about the plaintiff with Dr Kern. Dr Wardman notes that Dr Kern has had a discussion with Mr Popovic. Without evidence from Dr Kern it is of course not possible to know with complete certainty when Dr Kern had that discussion with Mr Popovic, but it probably occurred in the telephone call at about 9.30 am.
The result of the discussion shows that what was then proposed was recorded as:
1.to admit [the plaintiff] under Dr Popovic as a private patient;
2.to plan for the endovascular treatment for the pseudoaneurysm on Monday;
3.advised by Dr Popovic not for CT of the head as unlikely bleed/subarachnoid haemorrhage; and
4.need to exclude meningitis or make a clinical decision.
The precise meaning of this last point, or half of it, is not immediately apparent from the words alone. Dr Wardman was not called to explain it. Later in these reasons I will refer to the expert evidence about the diagnosis and treatment of both subarachnoid haemorrhage and bacterial meningitis in greater detail and the conclusion I draw from that evidence as to the meaning of these words.
At the end of his notes Dr Wardman records the fact that he has discussed the patient with Dr Wilson, and 'concern re Temp? Meningitis ‑ will review patient'. Dr Wilson did subsequently carry out a review of the plaintiff. Nursing notes record the fact that at 12:15 the plaintiff was being reviewed by the consultant and the RMO.
Dr Wilson was the consultant specialist physician in emergency medicine on duty that day in the ED. She was the only doctor called to give evidence who actually saw the plaintiff on 6 October 2007.
Her evidence assisted in translating the notes made in the records of the RPH for the plaintiff on that day. Her evidence was however that, apart from the notes she made that day, she had 'no independent recollection' of treating the plaintiff on 6 October 2007. In any event, most of her evidence consisted of an interpretation of the notes made on the day.
Despite that, she said that the notes she had made assisted her to recall that she was 'very concerned (for the plaintiff) from the moment she saw him'. When she first heard how the plaintiff presented, her concern she said was that 'the patient may have meningitis', and so she went to review him herself.
There are some troubling differences between what Dr Wilson says she observed and recorded, as against the records made by others. Her claimed lack of any 'independent recollection' of these events does not sit well with a number of assertions she made in her evidence. I place little weight on Dr Wilson's observations and her explanations of her own conduct, to the extent that there are any.
Her notes begin at 12.30 pm. Her evidence was that she 'probably' saw the plaintiff about 12.00 pm and made her notes at the later time.
While she saw Mr Panagoulias after speaking with Dr Wardman and, she 'thought' while Dr Wardman was present, she did not think she had read Dr Wardman's notes.
The history that Dr Wilson recorded was different from that obtained by Dr Wardman and the triage nurse. Indeed, Dr Wilson said that the purpose of her note making was to 'confirm the differences in the history, between my history and the history that had been obtained before'. That explanation was not challenged. She was not cross‑examined as to the purpose in 'confirming differences in the history', or even as to how she could now recall doing so. It is not readily apparent that there was any utility in 'confirming differences'. Nor is it in fact apparent from her notes that she was consciously recording inconsistencies in the patient's account. The difference only becomes apparent when her notes are compared to the notes of others.
In referring to the plaintiff's surgical history, Dr Wilson wrote:
40 year old chap- (with) headache
2006 – pituitary surgery (transphenoidal)
Cx (complicated) by carotid artery rupture +
pseudo aneurysm
9/2007 - 1x coil to pseudo aneurysm
Due for repeat coil 2/7 (two days)
The 2006 surgery was not transphenoidal. In that operation the tumour was accessed by an entry into the skull through the area near the eyebrow. On the face of this note at least it does not appear that Dr Wilson appreciated that the surgery that resulted in the carotid artery and pseudo-aneurysm complications had taken place just three weeks before, in September 2007, and not the earlier surgery in 2006.
Dr Wilson said the plaintiff had provided her with the information she included in her note. No doubt she spoke to him. The note made by the triage nurse however referred to the 'previous diagnosis of aneurysm following brain tumour surgery 3/52' (that is, three weeks ago). Dr Wardman's notes referred to 'recent cranio pharyngioma surgery and coiling aneurysm …'.
Despite its careful preservation and the presentation of the jar to ED staff, Dr Wilson was unaware of the sneezing out of the fatty 'plug' the previous afternoon. She seemed genuinely surprised when that was raised with her in cross-examination.
Counsel for the plaintiff and the first defendant rightly pointed to the recentness of the plaintiff's surgery on 14 September, the complications of that surgery and the plaintiff's medical history to the evening of 5 October 2007 as matters that signalled the nature and degree of risk he might face. An inference that could arise from Dr Wilson's notes is that she was unaware of that history of recent surgery. If the ED consultant physician did not appreciate that the plaintiff had undergone transphenoidal surgery just three weeks earlier, and had seemingly sneezed out some of the packing used in the surgery less than 24 hours earlier, that might explain a certain lack of urgency with respect to the plaintiff's condition suggested by the conduct of the hospital staff. Dr Wilson was not asked about this however, and accordingly it would be unfair to make any finding in this regard.
Whereas Dr Wardman recorded an occipital headache of 'gradual onset' Dr Wilson recorded 'sudden onset of severe headache'. Dr Wilson said that the difference between those two positions was significant. A headache of sudden onset is more likely to be connected with some kind of neurological trauma incident, as opposed to a headache that arises gradually.
Dr Wilson observed the plaintiff's neurological condition to be effectively normal. She recorded a Glasgow Coma Scale of 14/15 for the plaintiff. This she said was because 'his eyes were closed, but I was able to rouse him easily, so he was sleeping'. She was not asked how she could remember that detail. It is not apparent where that matter is to be found in Dr Wilson's notes. It is the case however that she saw the plaintiff after he had had two doses of intravenous morphine.
That is not consistent with the evidence of Mrs Panagoulias who said that after her husband was given morphine he was difficult to rouse. The difference may be explained by the particular timing of the observation by each witness.
Dr Wilson records the presenting complaint as 'sudden onset severe headache (top of the head)' at 3 o'clock in the morning and 'associated neck stiffness'. This description of the nature of the headache is not consistent with that obtained by the triage nurse and by Dr Wardman. Asked about this, Dr Wilson sought to explain that the nature of the onset of a headache was of particular clinical interest, and different in significance to the progress of a headache thereafter. Her evidence suggested that she would have had a better understanding and appreciation of that issue than the triage nurse and Dr Wardman. The notes made by them, she suggested, recorded 'progression', not 'onset'. According to Dr Wilson, Dr Wardman was a relatively junior doctor. This evidence was, it appeared, intended to suggest the likely superiority of Dr Wilson's history. Dr Wardman was however a qualified doctor, and a trainee in the specialist field of emergency medicine.
Later in her notes Dr Wilson returns to the matter of the headache, 'took 2 panadeine forte with some relief (able to go back to sleep) but headache persisted'.
Dr Wilson also records 'mild photophobia and no nausea or vomiting'. By the time that Dr Wilson saw the plaintiff, over two hours since he had first presented at RPH, he had received intravenous Maxolon - an anti-nausea drug ‑ and two courses of intravenous morphine.
Dr Wilson observed that the plaintiff was lying in a darkened room and looked unwell. The fact that the plaintiff was lying in a darkened room when Dr Wilson saw him is at odds with the note of Dr Wardman that there was 'nil photophobia'.
The plaintiff was by this time 'clammy' with a temperature of 38.3°C. The description is of a man who is visibly and obviously very unwell. When compared to the triage notes, it is a description of a man who has fairly rapidly grown more unwell.
Dr Wilson observed and recorded 'meningism on lifting head'. Meningism is an involuntary spasm of some of the neck muscles. It is an involuntary response by the body to avoid pain by trying to keep the neck still, if someone tries to for example lift their head off a pillow. As Dr Wilson said in her evidence, it is caused by an irritation of the meninges, the membranes that envelop the brain and spinal cord including the dura mater and the arachnoid. Meningism Dr Wilson said was most commonly caused by subarachnoid haemorrhage and meningitis.
Dr Wilson's 'impression' was that the 'suddenness' of the headache onset was a concern and that the issue of subarachnoid haemorrhage needed to be excluded. Her evidence, which I accept in this respect at least, was that a headache caused by bacterial meningitis will increase over time whereas a 'sudden' and severe headache may be indicative of some traumatic event, like haemorrhage. She recorded, alternatively, that the fever suggested a differential diagnosis of chest infection or meningitis.
Dr Wilson's impressions for a differential diagnosis were recorded in this way: 'Suddenness of headache onset is a concern. Subarachnoid haemorrhage needs excluding'. The differential diagnosis was 'fever – chest infection or meningitis'.
Dr Wilson's plan for the plaintiff was for a chest X‑ray, and a discussion with the neurosurgical registrar. She did not seek to involve an infectious disease consultant. Her plan did not include either a CT scan or a lumbar puncture which, as will become apparent, could have assisted in the investigation of subarachnoid haemorrhage and meningitis. The only investigation that Dr Wilson herself thought needed undertaking at that stage was a chest X‑ray, for chest infection. She said that was to assess issues related to the fever.
No other doctor then or since has suggested that a diagnosis of a chest infection was warranted. Dr John Raftos, a senior specialist in emergency medicine who gave evidence at trial, was critical of both the assumptions made by Dr Wilson and her management of the plaintiff's care. In particular he said, there was 'no evidence' of chest infection.The earlier notes in fact report a history of a cough that had resolved, and examination results describe a 'clear chest' and no 'wheeze'.
As to her planned discussion with the neurosurgical registrar, Dr Wilson records that she has paged Dr Kern and is awaiting his call back.
Despite Dr Wilson's evidence that she had no memory of this event beyond what is contained in the notes, she gave evidence that, when she realised she had not been called back by the 'neurosurgical team' she re‑paged them. Then, 'sometime before 1415 hours they must have called back and I had a discussion with them'.
On her evidence it was then between an hour and a half and two hours before she was able to speak with Dr Kern. For reasons that are again unknown, no discussion took place between the neurosurgical registrar and Dr Wilson until around 2.15 pm. When she spoke with him, Dr Wilson recorded that Dr Kern will 'review shortly' for 'CT head'. The nursing notes record, however, that at 1415 the patient was being seen in bed by Dr Wilson, 'For head CT'. Dr Wilson said that this was the time when, after she spoke with Dr Kern, the head CT was 'booked'. Subsequent notes show that the CT was not performed until sometime after 3.00 pm, and Mr Panagoulias is recorded as 'Returned from head CT' at 1547 (3.47 pm).
Dr Kern eventually saw the plaintiff. It is not clear exactly when, but nursing notes show that Dr Kern performed a lumbar puncture at 1500 hours. There is no evidence as to what caused this delay. Dr Wilson thought that, having seen the nursing note about the lumbar puncture (at 3.00 pm), she 'would guess from that time that he probably reviewed the patient about 2.30-ish because it would take a little while to set up for the lumbar puncture and perform that'.
The notes of Dr Kern are rather odd, not least because they do not record any times. Some of the events recorded do not appear to be in chronological order, in the order that is, in which events must have occurred.
Dr Kern records a complaint of a 'sudden severe headache at 2.00 am'. Under the heading 'exam' among other things Dr Kern records 'severe meningism'. Dr Kern's plan was to:
-Discuss with E Popovic
-Admit patient
-for LP and CT head
The next note records the result of an examination of the CSF obtained by the lumbar puncture,
-LP slightly turbid
-Leukocytes < 3000
Leukocytes are the white blood cells that respond to infection. A count of white blood cells could only occur in the laboratory. There was no explanation at trial of the particular significance of this result, but at least one of the expert reports suggests that this is an elevated count consistent with infection.
As will become apparent when the expert evidence comes to be considered, an observation of 'turbid' CSF, that is, CSF that is not crystal clear, is of considerable clinical significance, warranting the immediate administration of intravenous antibiotics and corticosteroids in a case like this.
An observation of the turbidity of CSF is something that could have and that should have been made on the spot when the lumbar puncture was performed. It does not appear that it was. Rather, Dr Kern seems to be reporting what he has been told by the laboratory. Had he made the observation then, the administration of antibiotics should have been commenced immediately. Instead, after this entry, a further note appears,
-Discussion with Dr Christianson infectious disease consultant
-Meropenem 2 g
And then,
-CT head - mild HC
-mild generalised oedema.
There was no evidence at trial as to why it was, given the differential diagnoses that had been made earlier, that no advice was sought from an infectious diseases consultant until this time.
At 5:30 pm the plaintiff was finally treated with 2 g of intravenous Meropenem antibiotic. Intravenous or 'shock' corticosteroids were not given at the same time, as other evidence in the trial suggests they should be. There is no explanation for the failure to give shock corticosteroids, particularly in circumstances where the RPH medical staff was aware that Mr Panagoulias lacked the capacity to produce cortisone naturally.
Mr Panagoulias was admitted to a ward at 6.40 pm. His Glasgow Coma Scale score is recorded as 15. At that time he was still alert and had normal vital signs, although his temperature had for hours been noted as 38.7°C. An observation made at around 2000, or 8.00 pm suggests that the plaintiff was 'OK'. Just eight minutes later he was 'found to be unresponsive' and experiencing 'hemiplegia'. That is, one side of his body was paralysed. Shortly after this he lost consciousness, an emergency team was called, and the plaintiff was intubated and ventilated. By this time the bacterial meningitis had caused the plaintiff severe and irreversible brain damage.
Bacterial meningitis
I will explain some things about the nature and symptoms of bacterial meningitis, the aetiology of infection of the CSF, the course of the illness and its treatment, based on the available evidence that I accept. There was in fact little real controversy between any of the expert witnesses, on this or any other topic.
Three highly qualified infectious diseases physicians gave expert evidence at the trial.
Associate Professor Damon Eisen is a highly qualified, highly experienced consultant infectious diseases physician. He has practised in the speciality field of infectious diseases for 23 years. He was called by the plaintiff to give expert opinion evidence on the subject of the diagnosis and treatment of bacterial meningitis and the consequences of delay in treatment.
Professor David Paterson and Associate Professor Phillip Braslins were called by the third defendant.
Professor Paterson has had a specialty certification in infectious diseases in Australia since 1995. His experience includes five years as an Associate Professor at the University of Pittsburgh School of Medicine, where he was the Director of Antibiotic Management Program. He is currently Professor of Medicine at the University of Queensland, Chief Executive Officer and Director of Research at Wesley Medical Research, and a consultant infectious diseases physician at the Royal Brisbane and Women's Hospital. His evidence was primarily directed to an allegation that was ultimately abandoned: that Mr Popovic should have used antibiotics as a prophylactic against bacterial meningitis prior to 5 October. Professor Paterson's evidence however was of more general assistance.
Professor Braslins is an infectious diseases physician with more than 15 years' experience as a consultant specialist. Among his many qualifications, he holds a doctorate in epidemiology from the Boston University School of Public Health. He has a very lengthy list of publications on a number of topics related to infectious diseases. He has held a number of academic appointments. He is presently an Associate Professor and Clinical Dean at the School of Rural Medicine at the University of New England in New South Wales. He also practises as a physician in the Armidale Rural Referral Hospital in New South Wales.
His evidence primarily related to the consequences of delay in treatment of bacterial meningitis, in particular in the case of the plaintiff. His evidence was also however of more general use.
Michael Pullar was another expert witness called by the third defendant. Mr Pullar is a specialist neurosurgeon. Mr Pullar has been a consultant neurosurgeon for Monash Health since 1988. He was the head of that unit from 1993 to 1999 and is currently the supervisor of surgical education and training in neurosurgery at Monash Health for the Royal Australian College of Surgeons. He has a long list of publications on subjects relating to his specialty.
Earlier in these reasons I referred to the role played by the CSF that surrounds the brain and spinal cord. Ordinarily CSF is pristine. That is, it is normally completely sterile.
The bacteria that cause meningitis may find their way into the CSF by the leakage of CSF through the dura mater. The kind of penetration that can cause that may be the result of surgery, or I would assume as a result of traumatic head injury. The risk of infection posed by a slow intermittent CSF leakage is greater than that caused by a sudden profuse leakage. The latter does not allow infectious material to travel 'up stream'.
According to Mr Pullar, whose evidence I accept, infection can also move through the meninges by means other than a CSF leak. That was the means that Mr Pullar suspected in the plaintiff's case, although he did not have the opportunity to explain or develop this. It is sufficient to say that the evidence at trial did not exclude some means of infection other than a CSF leak.
If bacteria of a kind associated with meningitis find their way into the CSF around the brain or spinal cord, an infection will quickly take hold. According to Professor Braslins the doubling time of bacteria, the time it takes for the number of bacteria to reproduce and increase in number by 100%, is 20 minutes. Every hour it is left untreated the total amount of bacteria present would increase eight fold.
The disease that is caused is acute, with a sudden onset. Someone infected with bacterial meningitis becomes unwell 'very, very rapidly'. The metaphor used by Professor Paterson for teaching purposes is that a patient with bacterial meningitis is '… on the Niagara River and not too far away from the Niagara Falls'.
I have previously referred to the evidence of the nasal discharge that the plaintiff experienced after his surgery, described by Mr Popovic on 26 September 2007 as 'green snot'. Some effort was made in cross‑examination of the medical witnesses to suggest that this green snot at some stage or stages following the operation on 14 September was or could have included CSF leakage from the plaintiff's dura mater, and that the green snot was evidence of bacterial infection. Notwithstanding the fact that Mr Popovic prescribed a five day course of antibiotics to try to deal with the nasal discharge, there was in fact no real proof according to two of the expert witnesses that the 'green snot' was a bacterial infection, as opposed to something viral, or neither. The fact that Mr Popovic believed to some degree of probability that it could or might be treated by a course of antibiotics does not prove that it was in fact bacterial. I am not satisfied it was bacterial.
Whether it was a bacterial sinus infection or not, one thing is clear. There was no indolent bacterial meningitis infecting the plaintiff prior to 5 October. It is most improbable that there was any presence of meningitis bacteria in the plaintiff's CSF prior to late in the evening of 5 October, heralded by the headache in the early morning hours. The speed with which bacterial meningitis develops means it could not be otherwise.
The diagnosis and treatment of bacterial meningitis are not solely the concern of specialist infectious disease physicians. The nature and consequences of a bacterial meningitis infection were conveniently described in an opinion provided by Associate Professor John Raftos, called by the plaintiff.
Professor Raftos practises at St Vincent's Hospital, Darlinghurst, New South Wales. He has been a senior specialist in emergency medicine since 1997. He was a clinical teacher of that subject between 1981 and 1984 at the University of Newcastle.
In his report of August 2011 Professor Raftos said:
Acute bacterial meningitis is a potentially life‑threatening and disabling illness whose treatment is, among other things, time critical. Bacterial meningitis most commonly occurs without a pre‑disposing cause in previously well individuals of all ages. … The dura mater is the outer lining of the brain and provides protection from bacterial invasion. When the dura mater is breached, when there is a fracture of the base of the skull or when there has been a surgical breach of the dura mater at the skull base, the protection from bacterial invasion is lost and the patient is prone to developing meningitis by invasion of organisms mainly from the nasopharynx. In Mr Pangoulias' case, the dura mater in the vault of his nose had been breached during the operation on 14 September 2007 and plugged with tissue from his thigh, most probably tissue from the fascia lata. There was therefore a route by which bacteria could migrate from his nasopharynx to his subarachnoid space to cause meningitis and he was at risk of developing acute bacterial meningitis by this route until the breach in the dura healed.
The initial illness in bacterial meningitis is a bacterial infection of the cerebrospinal fluid in the subarachnoid space. This causes severe headache, fever, neck stiffness, and photophobia but it does not cause injury to the brain. Brain injury may occur as bacterial meningitis progresses by two mechanisms. Firstly, the arteries that serve the brain are made irritable by the meningitis infection and become prone to spasm. When a cerebral artery spasms, the blood supply to the area of brain that it serves is cut off and a stroke occurs. As bacterial meningitis progresses, patients may develop multiple small or large strokes as a result of vasospasm. Secondly, the inflammation caused by meningitis on the base of the brain may block the foramina of Luschka Magendi through which the cerebrospinal fluid (CSF) flows from within the brain to the outside. The fluid then builds up within the brain, causing hydrocephalus and increased intracranial pressure. The increasing intracranial pressure may then cause the brain to move downwards through the tentorium cerebelli. Once this 'coning' of the brain has occurred, there is a sudden decrease in the level of consciousness and the outcome is usually either death or survival with substantial neurological disability.
The typical presentation with acute bacterial meningitis is with progressively worsening headache, fever, neck stiffness, and photophobia. There may be associated nausea and vomiting. As the disease progresses there may be a reduction in the conscious level and seizures may occur. The aim of the Emergency Department assessment and management of patients with acute bacterial meningitis is to diagnose the illness and to start treatment with appropriate intravenous antibiotics as early in the illness as possible. The earlier in the illness that treatment with intravenous antibiotics is started, the greater the likelihood that the patient will recover without disability. Delay in diagnosing and treating acute bacterial meningitis is associated with worse outcomes including death and permanent neurological disability.
Professor Raftos' reference to a 'breach of the dura mater' aside, I accept this evidence.
Doctors speak of a 'triad' of symptoms that warn of bacterial meningitis ‑ headache growing in severity, fever, and stiffness of the neck. These are the early signs that point to 'meningism' for those who are alert to them. Those were the signs that were present and identified from the first moments the plaintiff arrived at the RPH ED.
Additional symptoms include photophobia and nausea. Both an RPH nurse and Dr Wilson observed photophobia in the plaintiff. An anti‑nausea medication was given to the plaintiff at 10.45 am. It is not known whether that was because of any complaint of nausea. No witness was called to explain why the anti-nausea drug was in fact administered. There was some suggestion by Dr Wilson that it may be given with narcotics like morphine. If so it was only given for the first administration of morphine, and it had in any event the potential to mask symptoms of nausea.
Therapeutic Guidelines
In describing what they regarded as the appropriate response to a suspected case of bacterial meningitis, Dr Eisen and Professor Braslins referred to the Therapeutic Guidelines, published to inform the practice of Australian medical practitioners in numerous specialities. These guidelines, Dr Eisen said, give doctors direction as to
appropriate, that is best practice in the treatment of infection, and they are both widely endorsed by specialist groups and very widely available and adhered to – well - it is the intention that they are adhered to, that is, they describe best practice.
The guidelines as they were published in 2006 included the following with respect to meningitis:
… The administration of antimicrobials should not be delayed once the clinical diagnosis has been made and blood cultures taken. Lumbar puncture and cerebrospinal fluid (CSF) examination should be performed whenever meningitis is suspected and there are no immediate contraindications, or after a computerised tomography (CT) scan has shown no evidence of raised intracranial pressure or focal lesions that could indicate that lumbar puncture may be hazardous. …This allows the diagnosis to be rapidly confirmed or ruled out.
…
Recent evidence shows that early treatment with dexamethasone (starting before or with the first dose of antibiotic) improves the outcome in adults and children with acute bacterial meningitis, so its use is now recommended.
...
If dexamethasone is not available, hydrocortisone 200 mg (may be used for the initial dose). …
Consultation with a clinical microbiologist, an infectious diseases physician or a paediatrician experienced in this field should be sought if there is any uncertainty in treating a patient with meningitis.
Immediate and early hospital management
If the patient has not received high‑dose penicillin and all tests including a lumbar puncture will be delayed beyond 20 minutes, give dexamethasone … and empirical antibiotics as below. Antibiotics should not be withheld while awaiting a computerised tomography (CT) scan or polymerase chain reaction (PCR) testing. A lumbar puncture should be performed as soon as possible, as CSF microscopy and culture are vital in directing antibiotic therapy, and the possible use of corticosteroids …
I accept Dr Eisen's and Professor Braslins' evidence in this regard.
Crisis and aftermath
Mrs Panagoulias spent most of the day of 6 October with her husband at RPH. Later in the afternoon she said the registrar from the neurosurgical ward (presumably Dr Kern) came down and told her that he had carried out a lumbar puncture and sent her husband for a CT scan. She said that she was told that 'the scan was fine' but the lumbar puncture had showed signs of infection and 'there was talk about giving him antibiotics'. She stayed until the antibiotics had been administered at 5.30 pm. When the RPH staff told her that her husband was going to be shifted to a ward she decided that she had better go home and get her daughter from the friends who had been looking after her that day. She picked up her child, returned home, and put her daughter to bed.
Plaintiff's counsel submits that I should consider the issue of the health benefits to the plaintiff 'against the background that his right to independent living is recognised by Australia. Australia signed and ratified the Convention on the Rights of Persons with Disabilities in 2008'. The submission refers to the fact that Articles of the Convention encourage and recognise, among other things, 'the equal right of all persons with disabilities to live in the community, with choices equal to others….'. With respect, that cannot overcome the legal reality that this court is bound by authorities such as Sharman v Evans.
A useful starting point for any comparison is that the evidence establishes that Mr Panagoulias' medical needs are well catered for at Brightwater. The most that private arrangements would achieve, on the evidence, is something 'equally effective'.
The issue of 'thermoregulation' sounds as if it might have something to do with a relevant medical issue. It does not.
The facilities at Brightwater have a central air conditioning and heating system. There is no independent temperature setting for the plaintiff's room. Private accommodation would of course allow the plaintiff to have the thermostat set at his desired temperature.
Because the plaintiff's hypothalamus is not functioning properly, his thermoregulatory system is affected. Just as he now lacks the ability to regulate his fluid intake, he is insensitive to cold. Between 2008 and 2014 the plaintiff had several hospital admissions where he was 'obtunded'. That is, he was in a state of confusion and reduced consciousness, with a very cold core temperature.
The evidence of Professor Stuckey was that it was not in fact clear whether hypernatremia from uncontrolled diabetes insipidus was leading to the mental confusion, or mental confusion from a low core temperature was resulting in hypernatremia. Whichever it was, as Professor Stuckey said in her report of 3 March 2017, the plaintiff 'requires careful monitoring of his core temperature because he is insensible to cold'.
Since the plaintiff is insensible to cold, it is difficult to understand how exactly the ability to independently regulate room temperature is in itself a solution to any problem of thermoregulation. There does not appear to have been any problem since 2014. Tellingly perhaps, there is no evidence of any effort to provide some supplementary heating for the plaintiff's room at Brightwater.
I am not satisfied that there is any advantage for 'thermoregulation' to be obtained by independent living.
With respect to diet, it is the case that the plaintiff dislikes the food at Brightwater. For some time that was a consequence of the fact that he was kept on a low sodium diet. While that has been relaxed, it appears that the Brightwater menu is not to the plaintiff's taste. Some indication of what he would like can be seen in the January 2013 and November 2016 reports of Jane Burns of the Lighthouse Health Group. On both occasions that Ms Burns reviewed the plaintiff he repeatedly asked to be taken out for pizza.
If the plaintiff lived independently it might well be possible to provide him with food of a better quality than he is able to receive at Brightwater. Much would depend of course on the skill of the carers that were engaged. It is not possible to say however that it would ultimately be any more to the current taste of the plaintiff. Nor can it be said that there is any medical benefit to be derived.
The other matters that plaintiff's counsel categorises as 'health benefits' are in fact an appeal to empathy as opposed to a reasoned argument applying the authorities to the evidence here. The nature of the injuries suffered by the plaintiff mean that empathy does not much assist here.
According to the evidence of Mrs Panagoulias, which I accept, it appears that the plaintiff would like to have greater social interaction with people, and he has been frustrated in the past by the lack of opportunity to talk to others. The nature of the Brightwater facility is such that many of the patients there lack the ability to speak and for some of those who are physically able to speak their cognitive problems make any kind of sensible conversation impossible. Another difficulty is that the personality changes that the plaintiff suffered makes him somewhat aggressive and prone to frustration. While the Brightwater staff are best suited to interacting with the plaintiff, the nature of his personality now makes that very difficult. Their time is also occupied by other patients.
Of recent times the plaintiff has been able to take part in programs operated by an organisation called Community Vision. By all accounts that has offered him greatly improved opportunities for social interaction. According to Ms Burns, the program has 'relieved boredom'. Mrs Panagoulias describes the program as 'fantastic'. According to Ms Jayne Cruttenden, the increased social interaction provided by Community Vision programs has assisted in improving the plaintiff's behaviour.
Several witnesses gave opinion evidence with respect to proposals for the future care of the plaintiff. All of them were well qualified to do so.
Jayne Cruttenden and Alicia Burns were called on behalf of the plaintiff. Ms Cruttenden is an occupational therapist with considerable work as a case manager and occupational therapist for people with severe disabilities. Ms Burns first trained as a registered nurse. Following a further seven years working in the rehabilitation department of the Children's Hospital of Los Angeles, she did a post-graduate course in intensive care nursing. She then completed the Masters in Rehabilitation Nursing program. She holds a qualification in 'life care planning' which she gained in the United States. In the United States and Canada life care planning is a recognised, specialised field, dealing in the assessment of people with catastrophic injuries and their needs.
Using their respective specialised skills, Ms Cruttenden and Ms Burns contributed to a joint report proposing accommodation and care for the plaintiff in a private residence. The plan entailed around the clock care by a combination of unlicensed care workers with support from a registered nurse.
That proposal involved leasing a private residence in reasonable proximity to the home where the plaintiff's wife and child now live, making modifications to that residence to make it more suitable for the accommodation of the plaintiff and a carer, and otherwise providing the ancillary services necessary to maintain the plaintiff's health.
I do not doubt that Ms Cruttenden and Ms Burns carefully considered the needs of the plaintiff and that their proposal represents what is, in their view, the optimal arrangement for someone in the plaintiff's circumstances.
Ms Ruth Jodrell was called on behalf of the first defendant. Ms Jodrell is a qualified occupational therapist. She has previously been employed as a superintendent occupational therapist at the Royal Perth Rehabilitation Hospital and has also been the director of the Independent Living Centre of Western Australia. She has considerable experience working with people suffering the disability of acquired brain injuries.
Ms Jodrell considered the circumstances of the plaintiff and the prospect that something might be gained by arranging private accommodation and care for him.
Ms Jodrell accepted that for people with severe disabilities, independent living was a goal of occupational therapy, so far as it is possible, and having regard to other considerations. That of course is particularly so where somebody has previously lived independently. Her evidence was that there are in fact advantages and disadvantages in both Mr Panagoulias' present circumstances and the proposal for private accommodation and care. Her evidence was that there was no 'right or wrong' in this outcome for Mr Panagoulias. Her concern was to weigh the advantages and disadvantages of both options to try to match them to Mr Panagoulias' needs. She was not in fact able to say that as between the status quo and private accommodation and care, that one option was better than the other.
Ms Burns' view, which it seems to me reflects a strong personal belief or preference on her part, was that it was 'desirable' for Mr Panagoulias to live independently. It was plainly her view that her professional responsibility was to ensure that to the fullest extent possible a person was restored to the kind of life that they enjoyed prior to injury. She said, that as a rehabilitation professional:
We don't look at people just from a medical point of view and say 'well, he has diabetes insipidus so let's just find somewhere that can manage with adequate care'. We're actually looking at the client as a whole in terms of how he is actually situated in the community and his family. We look at the client in terms of what their prior roles were in life … Peter was a worker, Peter was a husband, Peter was a father. We look at their pre‑injury lifestyle interests. So for example, Peter expressed to me that something that he would really love to do again would be to go fishing. So they're the sorts of things that we look at in terms of restoring a person's function to as close as possible as they had pre-injury and providing the resources that would enable them to do that, and to make sure that that's a safe way of doing it.
With respect to the plaintiff's current accommodation, Ms Jodrell described Brightwater as 'probably the state's leading facility' for those suffering from acquired brain injury. There is no reason to not accept that evidence. Professor Stokes' view was that the nursing care provided to the plaintiff at Brightwater was appropriate. With respect to the issue of monitoring and managing the plaintiff's sodium levels he said 'I think the nursing staff are doing a very good job with him'.
Brightwater provides an interdisciplinary care plan for the plaintiff, developed by many different health care disciplines represented on its staff. That includes not only unlicensed care workers but around the clock access to a registered nurse, an onsite dietician, onsite occupational therapy, social work, psychology and physiotherapy.
The views of Ms Burns and Ms Cruttenden were in my view strongly influenced by their particular philosophy of the proper approach to care for the disabled, as opposed to an objective clinical assessment. I mean no disrespect in saying this. Ms Jodrell in my assessment however was the more balanced witness. I accept Ms Jodrell's evidence.
In this case there is no cogent evidence that it would be to the medical benefit (physical or mental) of this plaintiff to shift him from his current accommodation and care.
The high water mark of any such evidence about the arguable benefits of independent living as opposed to Brightwater was the evidence of Mrs Panagoulias that her husband does not much care for the food at Brightwater and that he is often bored. That does not in my view provide a satisfactory answer to the question as to how the proposed change would offer some medical benefit.
One of the most distressing features of the plaintiff's current condition is that, based on what Mrs Panagoulias has said, what the plaintiff wants is not in fact to be provided for in private accommodation with private carers. What he wants is to go home to his wife and child, and even to return to his work. Notwithstanding what appears to me to be a particularly selfless devotion to her husband's care, Mrs Panagoulias recognises that this cannot occur.
The tragedy of the plaintiff's current circumstances is that he is self‑aware enough to recognise what he has lost, but not sufficiently self‑aware to understand why he cannot return to his former life. That cannot be resolved by providing private accommodation for him, even if it were in close proximity to the home of his wife and child. There is indeed a real prospect that if he were housed in close proximity to them, that could increase his distress at being unable to join them, if not permanently, then frequently. Based on the evidence that I have heard, that would place Mrs Panagoulias and her daughter in an extremely difficult position.
The evidence available to me does not lead to the conclusion that there is any tangible medical benefit to be derived by providing for the plaintiff's care in a private residence. I am in fact left with the distinct sense that such a change could carry with it a significant risk of negative unintended consequences.
In my view the plaintiff's needs will be properly met by his accommodation and care at the Brightwater facility. It would not be reasonable in my view to incur such a substantially greater cost for doubtful benefit. Given his needs for social interaction he should be able to have access to the Community Vision programs six days a week.
I assess damages for the plaintiff's future needs as follows:
1.
Accommodation and care, inclusive of Allied Health Services, nursing and case management
$3,983,441
2.
Provision for access to Community Vision programs, six days per week
$578,747
Given the conclusion I have reached with respect to appropriate future accommodation care I have not assessed matters such as future equipment expenses and amenities for carers, future aids and equipment expenses, home modification expenses, home maintenance and domestic assistance expenses. Nor have I made provision for occupational therapy, podiatry, and physiotherapy, or case management. All of those matters are encompassed within the amount provided for accommodation and care.
General damages - pain, suffering and loss of amenities of life
I will not repeat the description of the circumstances in which the plaintiff has been left as a result of his brain injury. The contrast between his life before and after the injury is stark. He knows what he has lost but cannot understand why. The worst of the physical suffering that he endured for months after the injury has largely passed, although he is of course left with significant physical disabilities.
The plaintiff's former life has been taken from him. He is left not only with significant physical disabilities, but with the cognitive and emotional problems that have been described. There is no prospect whatever of recovery.
It would be a sterile exercise in my view to try and make any rational comparison between the plaintiff's case and that of someone for example who has been rendered quadriplegic. 'Compensable loss depends not only on the severity of the physical injury but on the consequences for the individual': Thatcher v Charles (1961) 104 CLR 57, 71 (Windeyer J). The only real equivalence is that both kinds of injuries are properly described as catastrophic.
In my view a reasonable award for general damages for pain, suffering and the loss of amenities of life is $425,000.
Conclusion
The appropriate order here is that the plaintiff should have judgment against the first defendant. The action is dismissed as against the third defendant. I will hear from the parties with respect to the arithmetical calculation of damages, including interest, based on the findings I have made, as well as provision for trustee fees.
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