Storr v Hobart Public Hospitals Board
[1988] TASSC 86
•19 May 1988
Serial No B18/1988
List "B"
COURT: SUPREME COURT OF TASMANIA
CITATION: Storr v Hobart Public Hospitals Board [1988] TASSC 86; B18/1988
PARTIES: STORR, Ann Hartley
v
HOBART PUBLIC HOSPITALS BOARD
MULLIGAN, J B (Dr)
BATT, Jan (Dr)
FILE NO/S: 1970/1985
DELIVERED ON: 19 May 1988
JUDGMENT OF: Underwood J
Judgment Number: B18/1988
Number of paragraphs: 15
Serial No B18/1988
List "B"
File No 1970/1988
ANN HARTLEY STORR v HOBART PUBLIC HOSPITALS BOARD,
DR J B MULLIGAN and DR JAN BATT
REASONS FOR JUDGMENT UNDERWOOD J
19 May 1988
The plaintiff's claim is for damages for negligence. It is brought against The Hobart Public Hospitals Board as a statutory corporation vicariously liable for the torts of its servants, Dr J Mulligan, the Superintendent at the relevant time and Dr Jan Batt, a servant of the Board. There was no evidence of any negligence on the part of Dr Mulligan and the claim against him must be dismissed.
On the 26 December 1984, the plaintiff was admitted to the Royal Hobart Hospital. A laparoscopy was performed under a general anaesthetic administered by Dr Batt. The anaesthetic agents, admitted through a vein in the back of the right hand, were thiopentone 300mgms., alloferin 20mgms., and phenergan 50mgms. After being returned to the ward, the plaintiff complained of pain and swelling at the site of the anaesthetic injection. The event was noted at 1430 hours in the nurse's daily report as "right hand swollen and sore and some lasonil applied". The medical witnesses agreed that the anaesthetic agents caused a superficial thrombophlebitis at the injection site. A thrombophlebitis is the formation of a clot in the lumen of the blood vessel followed by inflammation of the vein wall. Although alleged by the plaintiff, the evidence contained no suggestion of negligence in the selection and administration of the anaesthetic agents. A post–anaesthetic thrombophlebitis is an acceptable risk when weighed against the advantages of the agents used and is not an uncommon event. The condition is not generally serious and usually resolves without difficulty.
The plaintiff also alleged that the servants of the hospital were negligent in the treatment and management of the condition between its appearance on the afternoon of the 27 December 1984 and her re–admission to the hospital on the 13 January 1985. The plaintiff is a married woman and carries on a hobby/business as a potter from her home in Cygnet making small pots of hand lotions and similar items. She claimed that, if the thrombophlebitis had been managed and treated without negligence at an early stage, the six month period it took for the condition to resolve would have been shortened and her lost income and pain would have been lessened.
There was little difference between the opinions expressed by the four medical specialists who gave evidence. The plaintiff called Dr Michael Jackson, an anaesthetist from Hobart, and Mr Milne, a specialist in vascular surgery from Melbourne. Mr Milne neither examined nor treated the plaintiff and based his opinions upon the hospital records and notes made by other treating doctors. The defendant called Dr Lamont, the Director of Anaesthetics at the Royal Hobart Hospital who also had not seen the plaintiff, and Dr Vial, a specialist physician at the University of Tasmania, who treated the plaintiff following her re–admission to the hospital on the 13 January 1985. Where there is any difference between the opinions I prefer those expressed by Mr Milne and Dr Vial. Dr Jackson said that venous thrombophlebitis was outside his area of expertise and Dr Lamont had reservations about expressing views upon vascular matters. Medical consensus was that appropriate initial standard treatment for the plaintiff's condition was elevation of the affected limb, topical application of lasonil (a cream containing agents similar in effect to heparin) and ingestion of aspirin or other ordinary analgesic to act as an anti–inflammatory agent. Although the plaintiff said she was given no treatment on discharge from hospital I do not accept this assertion as it is in conflict with the hospital record which notes the application of lasonil. Whether or not, on the plaintiff's discharge, use of analgesics and elevation of the arm was advised I am unable to say but, as subsequent events demonstrate, such treatment probably would not have alleviated the condition and accordingly, if such advice was not given I am not satisfied the plaintiff's level of pain and discomfort was thereby increased.
The day after discharge from hospital, the plaintiff consulted Dr Wilkins, her general practitioner at Cygnet. She complained of pain in the right hand and he noted that it was swollen and cold to a point one inch proximal to the wrist joint. He did not treat the plaintiff but advised her to return to the hospital. This, the plaintiff said she did the following day. The defendant hospital denies that there was any such visit and adduced detailed evidence of the procedures routinely followed on every visit to casualty. The relevant records were admitted into evidence but none of them disclose a visit by the plaintiff on the 29 December 1984. All the other attendances by the plaintiff are recorded in accordance with the prescribed procedure. If the plaintiff did attend on the 29 December the total absence of any hospital record of that event is extraordinary. It embraces the proposition that the plaintiff was seen by a junior doctor and treated in casualty without the records clerk noting the event, without the casualty sister making a note in a separate book, treatment being given without any medical records at hand and without being recorded in the casualty record book, all contrary to the procedure ordinarily followed in the hospital.
The plaintiff and her husband gave a detailed account of visiting casualty on the 29 December. The plaintiff said that she was seen by a young doctor who, after leaving her for a short period to consult another practitioner, advised her to put her arm in a sling and take two aspirin every four hours.
It is unnecessary for me to resolve the question of whether the plaintiff visited the hospital on the 29 December 1984 because it was Mr Milne's opinion that the treatment and advice the plaintiff said she was given was appropriate provided there was then no evidence of nerve involvement. I find from the evidence of Dr Wilkins, who examined her the preceding day, that there was no evidence of nerve involvement at that stage. Accordingly, if the plaintiff did visit the hospital on the 29 December 1984 there is no evidence to suggest that the management of her condition, as described by her, was negligent.
Unfortunately, the condition of the plaintiff's hand and arm worsened. The swelling went down somewhat but there appeared several obvious thromboses in the large superficial veins of the back of the hand and forearm as well as the underside of the forearm. The plaintiff complained of pain in the hand and arm and some numbness and tingling in the region of the thumb. She also complained of associated weakness in the right hand. The plaintiff saw Dr Wilkins on the 2 January 1985 and he urged her to return to the hospital but the plaintiff was reluctant to do so because she and her husband considered, erroneously as it turned out, that the hospital was not treating her condition properly.
On the 4 January 1985, in Dr Wilkins' absence, the plaintiff consulted another general practitioner who advised her to elevate her hand and "keep it moving". During the next seven days the condition of the affected limb deteriorated and on the 11 January the plaintiff returned to the general practitioner who noted that swelling was present right up the arm and he advised her to return to the hospital. This she did the same day and was seen by a Dr Crantock in casualty.
Dr Crantock made a thorough examination of the plaintiff and conferred with the Surgical Registrar. The possibility of deep venous involvement was raised but apparently excluded. Superficial thrombophlebitis was diagnosed and the plaintiff's arm elevated in a sling. She was given an antibiotic (in case infected tissues were part of the problem), an analgesic and some lasonil ointment. She was told to see her own doctor or return to the hospital if the problem did not resolve within the next three days.
The duty of care owed by Dr Crantock was to exercise reasonable care and skill in the provision of professional advice and treatment. The standard of his care should have been the same as is expected from a reasonably competent medical practitioner of the class to which he belonged. See for example, Bolam v Friern Hospital Management Committee [1957] 1 WLR 582; Chin Keow v Government of Malaysia [1967] 1 WLR 813.
Mr Milne said that on the 11 January the plaintiff should have been admitted, principally for diagnostic purposes, having regard to the possibility of thromboses in the deep veins. The plaintiff returned to the hospital on the 13 January and, because her condition had not improved, she was then admitted. Investigation revealed no deep vein involvement and established that Dr Crantock's diagnosis on the 11 January had been correct. Nonetheless was the failure to admit her on the 11 January negligent? I infer from Mr Milne's evidence that he thought that Dr Crantock made an error of judgment by not admitting the plaintiff on the 11 January notwithstanding that his diagnosis was subsequently proved correct. If it was an error of judgment, neither Mr Milne nor any other witness said that such error was one which would not have been made by an ordinary medical practitioner of the class or classes to which Dr Crantock and the Surgical Registrar, whom he consulted, belonged when exercising reasonable skill and judgment. See Whitehouse v Jordan [1981] 1 WLR 246 at p257. Accordingly, there is no evidence of negligence by the servants of the Board on the 11 January 1985.
Mr Milne said that even if the plaintiff had been admitted on the 11 January, proper treatment would have been the same as she was given in casualty except that the arm would have been completely elevated instead of partially elevated in a sling.
As the conservative treatment had failed, heparin was given systemically after admission to the ward on the 13 January. Caution must attend systemic administration of heparin post–operatively because there is a risk it will cause a post–operative haemorrhage. All the evidence clearly showed that the admission on the 13 January was appropriate and all subsequent treatment and management beyond reproach.
In result therefore, I find that none of the allegations of negligence have been made out and there will be judgment for the defendants.
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