Queensland v Masson

Case [2020] HCA 28

HIGH COURT OF AUSTRALIA

KIEFEL CJ,
BELL, KEANE, NETTLE AND GORDON JJ

STATE OF QUEENSLAND  APPELLANT

AND

THE ESTATE OF THE LATE JENNIFER
LEANNE MASSON  RESPONDENT

Queensland v Masson

[2020] HCA 28

Date of Hearing: 11 June 2020
Date of Judgment: 13 August 2020

B63/2019

ORDER

1.Appeal allowed.

2.Set aside the orders of the Court of Appeal of the Supreme Court of Queensland made on 10 May and 13 September 2019 and in their place order that the appeal to that Court be dismissed with costs.

3. The respondent to pay the appellant's costs of the appeal, including as applicant for special leave to appeal.

On appeal from the Supreme Court of Queensland

Representation

S L Doyle QC with R N Traves QC and C J Fitzpatrick for the appellant (instructed by Crown Solicitor (Qld))

B W Walker SC with D R Campbell SC and A S Katsikalis for the respondent (instructed by RMB Lawyers)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Queensland v Masson

Negligence – Standard of care – Breach – Where woman suffering severe asthma attack treated by ambulance officers including intensive care paramedic – Where intensive care paramedic elected to administer intravenous ("IV") salbutamol rather than IV adrenaline in initial phase of treatment due to woman's high heart rate and high blood pressure – Where Clinical Practice Manual ("CPM") required that ambulance officers "consider" IV adrenaline – Whether decision to administer IV salbutamol contrary to CPM – Whether treatment fell below standard of care expected of ordinary skilled intensive care paramedic – Whether trial judge's finding that intensive care paramedic made clinical judgment to administer adrenaline "contrary to compelling inferences" or "glaringly improbable" – Whether administration of IV salbutamol supported by responsible body of opinion within medical profession.

Words and phrases – "adrenaline", "ambulance officers", "appellate intervention", "breach of duty of care", "case management guidelines", "clinical judgment", "clinical pharmacology", "clinical practice manual", "contrary to compelling inferences", "emergency medicine", "flowchart", "glaringly improbable", "intensive care paramedic", "negligent omission", "operating in the field", "ordinary skilled intensive care paramedic", "range of reasonable responses", "responsible body of opinion within the medical profession", "salbutamol", "severe asthma", "standard of care", "trial judge's advantage".

  1. KIEFEL CJ, BELL AND KEANE JJ.   On 21 July 2002, Jennifer Masson, a 25-year-old chronic asthmatic, suffered a severe asthma attack while visiting friends in Cairns. Asthma is a disease that is characterised by constriction of the bronchial passages and which, in severe cases, may lead to life-threatening deprivation of oxygen. Ambulance officers treated Ms Masson at the scene before conveying her to Cairns Base Hospital. Unfortunately, Ms Masson sustained severe, irreversible brain damage as the result of deprivation of oxygen before she arrived at the hospital. She lived in a vegetative state for the next thirteen and a half years while being cared for at home by her parents.

    Background and procedural history

  2. Proceedings were commenced in the Supreme Court of…

Continue reading Queensland v Masson

Sign in free to access the full text

Details
AGLC
Queensland v Masson [2020] HCA 28
Case
[2020] HCA 28
Decision Date

CaseChat Overview and Summary

The High Court of Australia heard an appeal from the Queensland Court of Appeal concerning a claim in negligence against the State of Queensland for the treatment of Jennifer Masson, who suffered severe, irreversible brain damage during an asthma attack. The dispute centred on the decision by an intensive care paramedic, Clinton Peters, to administer intravenous salbutamol rather than intravenous adrenaline as the initial treatment, despite Ms Masson being categorised as "imminent arrest" under the Queensland Ambulance Service's Clinical Practice Manual (CPM). Ms Masson's estate alleged that this failure to administer adrenaline promptly constituted a negligent omission for which the State was vicariously liable.

The legal issues before the High Court included whether the paramedic's decision to administer salbutamol instead of adrenaline was contrary to the CPM, whether the treatment fell below the standard of care expected of an ordinary skilled intensive care paramedic, and whether the trial judge's finding that the paramedic exercised clinical judgment was demonstrably wrong. Specifically, the court had to consider whether the CPM's guidance to "consider adrenaline" for patients in the "imminent arrest" category was determinative, or if it allowed for the exercise of clinical judgment, and whether the paramedic's choice of salbutamol was supported by a responsible body of medical opinion.

The High Court allowed the appeal, setting aside the orders of the Queensland Court of Appeal. The Court reasoned that intensive care paramedics are expected to exercise clinical judgment in applying the guidance in the CPM, and that the manual's terms were not determinative of the range of reasonable responses. The trial judge had found that the paramedic made a clinical judgment to administer salbutamol due to Ms Masson's high heart rate and blood pressure, and that this judgment was supported by a responsible body of medical opinion at the time. The High Court found that the Court of Appeal erred in overturning this finding, particularly by relying on a witness statement prepared seven years after the event and by giving undue weight to the timing of drug effects without sufficient consideration of the evidence presented at trial. The Court concluded that the paramedic's actions did not fall below the required standard of care.

Orders

Orders of the court

1. Appeal allowed.

2. Set aside the orders of the Court of Appeal of the Supreme Court of Queensland made on 10 May and 13 September 2019 and in their place order that the appeal to that Court be dismissed with costs.

3. The respondent to pay the appellant's costs of the appeal, including as applicant for special leave to appeal.

Background

Background to the litigation

KIEFEL On 21 July 2002, Jennifer Masson, a 25-year-old chronic asthmatic, suffered a severe asthma attack while visiting friends in Cairns. Asthma is a disease that is characterised by constriction of the bronchial passages and which, in severe cases, may lead to life-threatening deprivation of oxygen. Ambulance officers treated Ms Masson at the scene before conveying her to Cairns Base Hospital. Unfortunately, Ms Masson sustained severe, irreversible brain damage as the result of deprivation of oxygen before she arrived at the hospital. She lived in a vegetative state for the next thirteen and a half years while being cared for at home by her parents.Background and procedural history Proceedings were commenced in the Supreme Court of Queensland (Henry J) on Ms Masson's behalf by her litigation guardian claiming damages in negligence against the State of Queensland ("the State") as the provider of ambulance services under the name Queensland Ambulance Service ("QAS"). It was alleged that the ambulance officers' failure to promptly administer adrenaline to Ms Masson was a negligent omission for which the State was vicariously liable. The failure was said to be contrary to the instructions in the QAS Clinical Practice Manual ("the CPM"). Alternatively, it was alleged that, if the officers were not themselves negligent, the training and instruction given to them by the QAS was inadequate such that the State bore direct liability for the failure to administer adrenaline to Ms Masson earlier. Following Ms Masson's death, the claim survived in the hands of her estate[1]. The trial was confined to the question of liability, the parties having agreed on damages in the sum of $3,000,000[2].[1]Succession Act 1981 (Qld), s 66.[2]Masson v Queensland (2018) Aust Torts Reports ¶82-399 at 66,689 [3]. At the time ambulance officers arrived at the scene, Ms Masson was in respiratory arrest. Clinton Peters, an intensive care paramedic, was the officer who was responsible for making the treatment decisions. Mr Peters elected to administer intravenous ("IV") salbutamol in the initial phase of Ms Masson's treatment. Salbutamol, like adrenaline, acts as a bronchodilator. The CPM's asthma flowchart ("the flowchart") listed pre‑hospital treatment options for asthmatic patients in three categories, which, in descending order of severity, were labelled "Imminent Arrest", "Severe Asthma" and "Moderate Asthma". Ms Masson was within the "imminent arrest" category. The guidance that the flowchart provided in relation to patients in this category was to "[c]onsider adrenaline". The guidance for patients in the "severe asthma" category was to "[c]onsider [s]albutamol". A critical factual issue at the trial was whether Mr Peters had considered administering adrenaline to Ms Masson at the outset. The trial judge found that he had and that he had decided against doing so because Ms Masson had a high heart rate (tachycardia) and high blood pressure (hypertension)[3]. His Honour found that in 2002 there was a responsible body of opinion within the medical profession which supported the view that Ms Masson's high heart rate and high blood pressure, in the context of her overall condition, provided a medically sound basis to prefer the administration of salbutamol to adrenaline at the time of initial treatment[4]. The treatment of Ms Masson was held not to have fallen below the standard of care to be observed by ambulance officers. The claim was dismissed.[3]Masson v Queensland (2018) Aust Torts Reports ¶82-399 at 66,712 [148].[4]Masson v Queensland (2018) Aust Torts Reports ¶82-399 at 66,703 [93].

Evidence

Evidence Before The Court

The Court of Appeal was wrong to say that had there been a body of opinion that adrenaline should not be given to a patient in Ms Masson's condition with a high heart rate and high blood pressure, and had Mr Peters been aware of that opinion and acted upon it, where adrenaline was the drug indicated in the CPM, then by reason of that guidance he would have failed to take reasonable care[12]. The CPM was not expressed to be, and was not, determinative of the range of reasonable responses for an intensive care paramedic treating an asthmatic patient in imminent arrest who presented with Ms Masson's symptoms.[12]Masson v Queensland [2019] QCA 80 at [163].The evidence of the treatment On the night of 21 July 2002, Ms Masson drove to the home of her friend, Jonathon Turner, in Brinsmead, Cairns. She was wheezing badly as she walked into the house. She announced that she was returning to her car, apparently to look for her Ventolin puffer. When she returned to the house, she asked Mr Turner to take her to the hospital. As they walked outside, she collapsed on the front lawn. Another friend who was present, David Denman, contacted emergency services while Mr Turner performed mouth-to-mouth resuscitation. Mr Denman's call was received at 22:52. Ambulance officers arrived at the scene six minutes later at 22:58. Two ambulance crews attended. Mr Peters was assisted by third-year paramedic Tanya Stirling. The second crew comprised an advance care paramedic and a first-year paramedic. At the time of Mr Peters' arrival, Ms Masson was lying supine on the grass while a male was performing external compressions on her. The lighting was poor, and bystanders were enlisted to assist by holding torches to enable Mr Peters and his colleagues to carry out their work. Mr Peters was told that Ms Masson was an asthmatic and that she had suffered an attack after using her Ventolin puffer to no effect. Mr Peters observed that Ms Masson's eyes were open, and her pupils were responsive to light. She had lockjaw (trismus), her face was blue (central cyanosis) and she was flaccid and unresponsive. Her respiratory rate at the time the ambulance officers arrived was only two retracted or laboured breaths per minute. Mr Peters described her respiratory rate as being almost non-existent. The entry recorded on the Ambulance Report Form ("ARF") described Ms Masson as being in respiratory arrest at the time of the officers' arrival at the scene. She had a score of six on the Glasgow Coma Scale ("GCS"). Her blood pressure was high, 155/100 (systolic/diastolic readings). Mr Peters checked her carotid pulse and detected a very high heartbeat of 150 beats per minute. At Mr Peters' direction, Ms Masson was connected to a heart monitor, which revealed that her sinus tachycardia was the same rate. Tachycardia is a rapid heartbeat of greater than 100 beats per minute. It is a condition that is the opposite of bradycardia, which describes a heart rate of less than 60 beats per minute. Mr Peters concluded that Ms Masson was "hypoxic and deprived of oxygen and required oxygen immediately"[13]. He arranged to ventilate and oxygenate her by the application of a bag valve mask. At the same time, Mr Peters applied an intravenous cannula into Ms Masson's elbow pit, and at 22:59 he commenced administering salbutamol by this means. Between 22:59 and 23:20, Mr Peters administered eight doses of salbutamol – amounting to a total dose of two milligrams. This was twice the maximum dose recommended by the CPM. [13]Masson v Queensland (2018) Aust Torts Reports ¶82-399 at 66,690 [12].

Decision

Reasons for decision

KIEFEL CJ, BELL AND KEANE JJ NETTLE AND GORDON JJ
Intensive care paramedics are expected to exercise clinical judgment in applying the guidance contained in the CPM. If, as the trial judge found, Mr Peters' decision to administer IV salbutamol to Ms Masson reflected his judgment that her high heart rate and high blood pressure were contra‑indications for adrenaline, the fact that that judgment was supported by a responsible body of opinion within the medical profession would be inconsistent with finding that Mr Peters failed to apply reasonable care. It remains to consider whether the Court of Appeal was right to overturn the finding that Mr Peters' decision not to administer adrenaline in his initial treatment of Ms Masson was a clinical judgment.Did Mr Peters exercise clinical judgment in not administering adrenaline? Mr Peters' evidence was taken over three days. The trial judge's finding, that Mr Peters' decision not to administer adrenaline to Ms Masson was a clinical judgment and did not proceed from a mistaken understanding of the CPM, was expressed to take into account the manner in which the evidence was given. The Court of Appeal's conclusion, that notwithstanding the trial judge's advantage[65] the finding could not stand, was based substantially on the 2009 statement, although it also took into account Mr Peters' use of the language of prohibition in some parts of his oral evidence.[65]Fox v Percy (2003) 214 CLR 118 at 128-129 [29]-[30] per Gleeson CJ, Gummow and Kirby JJ; Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679 at 686-687 [43], 688-689 [54]; 331 ALR 550 at 558-559, 561. The 2009 statement was not a contemporary account. It was a witness statement prepared seven years after the event, which bore the hallmarks of professional drafting. The reasoning upon which the trial judge based his finding acknowledged that the 2009 statement may have reflected Mr Peters' interpretation of the flowchart at the date the statement was made. Importantly, his Honour assessed that this was not an interpretation that accorded with Mr Peters' actions at the time of treating Ms Masson[66].[66]Masson v Queensland (2018) Aust Torts Reports ¶82-399 at 66,711 [143]-[144]. The logic of the respondent's case was that Mr Peters wrongly understood that he could not give adrenaline to an asthmatic patient unless all three conditions nominated in the "imminent arrest" diamond icon were present, namely GCS < 12, bradycardia, and absent pulses. As the trial judge observed, the initial treatments applied to Ms Masson were those that the CPM identified for an asthmatic in imminent arrest[67]. Notwithstanding that she was not bradycardic and that she had discernible pulses, at Mr Peters' direction Ms Masson was given 100% oxygen and assisted ventilation. The clear inference was that Mr Peters did not, at the time, consider that the absence of bradycardia or the presence of discernible pulses precluded treating Ms Masson as an asthmatic in imminent arrest. It was open to his Honour to prefer Mr Peters' oral evidence to the 2009 statement.[67]Masson v Queensland (2018) Aust Torts Reports ¶82-399 at 66,710 [141].

Ratio Decidendi

Legal Principle Established

Established by: KIEFEL CJ, BELL AND KEANE JJ, NETTLE AND GORDON JJ

The Court of Appeal reasoned that if, as the trial judge found, Mr Peters' decision not to administer adrenaline was a clinical judgment which took into account Ms Masson's high heart rate and high blood pressure, nonetheless his consideration of adrenaline was not as required by the CPM[45]. The flowchart directed the officer to "consider adrenaline" and not to "consider adrenaline or salbutamol". Nor did it suggest that salbutamol was as effective an agent in bronchodilation as adrenaline since the flowchart identified salbutamol as the drug to be considered in a less serious case[46]. The drug data sheet for adrenaline showed that it was indicated in the case of a bronchospasm "unresponsive to [s]albutamol" and it prescribed dosages for a patient with "[a]sthma or severe bronch[o]spasm with imminent arrest". The drug data sheet for salbutamol did not refer to a patient in the latter category[47]. [45]Masson v Queensland [2019] QCA 80 at [156].[46]Masson v Queensland [2019] QCA 80 at [153].[47]Masson v Queensland [2019] QCA 80 at [154].The basis on which "consideration" of adrenaline proceeded The Court of Appeal noted that the CPM's guidance with respect to drug treatments was premised on the exercise of an officer's clinical judgment, and that treatments recommended by the CPM were not automatically appropriate[48]. Indeed, their Honours agreed with the trial judge that, in general, reasonable care did not require the administration of adrenaline in every case of an asthmatic patient in the CPM's category of imminent arrest[49]. There is an evident tension between the analysis in these respects and their Honours' conclusion that reasonable care did not permit a departure from the administration of adrenaline in Ms Masson's case, regardless of the risks of its side effects[50]. [48]Masson v Queensland [2019] QCA 80 at [24], quoting the entry in the CPM's Glossary of Specific Terms in respect of the term "consider".[49]Masson v Queensland [2019] QCA 80 at [151].[50]Masson v Queensland [2019] QCA 80 at [163]. The latter conclusion was based on their Honours' view that, notwithstanding its non-prescriptive terms, the CPM made clear that adrenaline was the preferred drug to achieve a fast and effective dilation of the bronchial passages to avoid death or irreversible brain injury[51]. It followed that Mr Peters' "consideration" of adrenaline should have proceeded on this premise[52]. It was a conclusion that reflected their Honours' acceptance of a submission concerning the timing of the effects of adrenaline vis à vis salbutamol ("the timing submission")[53]. [51]Masson v Queensland [2019] QCA 80 at [162]. [52]Masson v Queensland [2019] QCA 80 at [162].[53]Masson v Queensland [2019] QCA 80 at [32]. In the Court of Appeal, the respondent (the appellant in that Court) submitted that a critical difference between the two drugs was the timing of the onset of the effects of each: the drug data sheets for adrenaline and salbutamol recorded the timing in this respect at 30 seconds and one to three minutes respectively. These entries were relied upon as demonstrating that adrenaline was the preferable drug to give in a case where the patient was at imminent risk of death[54]. Over objection, the Court of Appeal accepted the timing submission notwithstanding that the trial judge's attention had not been drawn to the parts of the CPM that referred to the timing of the effect of the drugs, nor had the expert witnesses been asked to address this issue[55]. [54]Masson v Queensland [2019] QCA 80 at [26], [30], [32].[55]Masson v Queensland [2019] QCA 80 at [26], [30], [32]-[33].