Taggert v Barwon Health (ACN 877 249 165)
[2019] VCC 848
•26 June 2019
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| IN THE COUNTY COURT OF VICTORIA AT GEELONG COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-18-00365
| PAIGE ANNIE TAGGERT | Plaintiff |
| v | |
| BARWON HEALTH (ACN 877 249 165) | Defendant |
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JUDGE: | HIS HONOUR JUDGE O’NEILL | |
WHERE HELD: | Geelong | |
DATE OF HEARING: | 30 April 2019 and 1, 2 and 6, 7, 8, 9, 10 and 13 May 2019 | |
DATE OF JUDGMENT: | 26 June 2019 | |
CASE MAY BE CITED AS: | Taggert v Barwon Health (ACN 877 249 165) | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 848 | |
REASONS FOR JUDGMENT
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Subject: INDUSTRIAL INJURY – CAUSE
Catchwords: Nurse suffered injury to her left shoulder and neck while escorting a patient to the bathroom in his room at the defendant’s hospital – patient, who was classified as “high falls risk”, fell while using a wheeler – whether defendant ought to have required the patient to walk with other mechanical aids – whether there ought to have been further supervision with another nurse – whether the defendant’s assessment of the patient’s falls risk was appropriate – whether the failure to have mechanical aids and supervision a breach of the duty of care – task at the time was “hazardous manual handling” in accordance with Occupational Health and Safety Regulations 2007 – whether defendant failed to undertake a risk assessment, and eliminate or reduce the risk of injury – whether it was “reasonably practicable” to take steps to eliminate or reduce the risk of patient falling – issue as to liability only, quantum agreed.
Legislation Cited: Occupational Health and Safety Regulations 2007
Judgment: Judgment for the plaintiff.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J B Richards SC with Ms S Lean | Ryan Carlisle Thomas |
| For the Defendant | Mr A Moulds QC with Ms K Manning | Wisewould Mahony |
HIS HONOUR:
Preliminary
1 The plaintiff was a nurse in the Palliative Rehabilitation Unit at the Grace McKellar Centre (“the Centre”). The Centre is, and was, part of a hospital, owned and operated by the defendant, Barwon Health.
2 On 14 August 2013, the plaintiff was assisting a large elderly patient (“patient M”) move from his bathroom to an armchair alongside his bed. Because of a range of physical issues, including that he had had a number of falls while at home, he was using a four-wheel walker[1] (“the walker”) with the plaintiff, Ms Paige Taggert, alongside, supervising.
[1]Of a type similar to that depicted in exhibit 1
3 As he got to the end of his bed, a protruding wheel from the bed became caught in one of the wheels of the walker. Ms Taggert knelt down to try to release the wheel. At that point, the patient fell onto Ms Taggert while she was on her knees. She suffered an injury to her left shoulder and neck.
4 It is not necessary to describe in detail the injury Ms Taggert suffered and the consequences, as the amount of pain and suffering damages to be awarded to the plaintiff, if successful, has sensibly been agreed between the parties. It is sufficient to say that at the outset, it was considered that Ms Taggert had suffered a capsular injury to the left shoulder joint and underwent arthroscopic surgery in February 2014. Subsequently, it was considered she had suffered a thoracic outlet syndrome to the upper spine, as a result of which she underwent surgery in December 2015. Despite considerable ongoing treatment and restriction, Ms Taggert returned to work in March 2016, first as a nurse and, subsequently, with the National Disability Insurance Scheme. She remains in full-time employment, to the present date.
5 I accept that as a result of the injury, the plaintiff suffered a significant restriction in her working, domestic, recreational and social pursuits, albeit with some improvement in her symptoms over time.
The claim by the Plaintiff
6 According to the plaintiff’s Amended Statement of Claim, she alleges the defendant was in breach of the duty of care it owed as employer, and in breach of the provisions of the Occupational Health and Safety Regulations 2007 (“the Regulations”), in particular, Regulations 3.1.1, 3.1.2 and 3.1.3.
7 In the course of his opening, Counsel for the plaintiff,[2] in support of his contention the defendant was in breach of the duty of the care owed, said:
[2]The matter was initially listed as a jury trial. Senior Counsel for the plaintiff became unwell several days into the trial, and was unable to continue to represent her. On 6 May 2019, new Counsel for the plaintiff and Counsel for the defendant agreed I ought to continue to hear the matter as a cause. I discharged the jury.
· The patient was a large elderly gentleman with significant medical conditions and previously had a number of falls at home.
· He was taking a number of medications which contributed to him suffering vagueness and confusion.
· He was assessed as being at high risk of falling when admitted on 26 July 2013.
· According to a record in the patient care notes, a day before the fall, the patient said he “has lost confidence walking, and feels that his L[eft] hip will give way on him”.[3]
[3]Plaintiff’s Court Book (“PCB”) 304
· There ought to have been two nurses supervising him at the time.
· Further, there were a range of mechanical devices available at the hospital which could have assisted to more safely transport the patient.[4]
[4]As per exhibits A, B, C and D
· The activity in which the plaintiff was engaged at the time came within the definition of “hazardous manual handling” as defined in the Regulations. No assessment was undertaken to identify the task in accordance with Regulation 3.1.1.
· No steps were taken to eliminate or reduce the risk as required by Regulation 3.1.2.
The fall
8 The plaintiff commenced working at the Centre in January 2013.
9 Patient M was admitted on 26 July 2013. He had a range of medical issues, including being restricted in the use of his right arm. The walker was designed to be used with only one arm. He was a tall, elderly man and weighed about 95 kilograms.
10 Before the fall, the plaintiff had nursed him over about five shifts, the last being on 9 August 2013.
11 The plaintiff commenced her shift at about 7.00am on the morning of 14 August 2013. Initially, there was a handover from the previous nursing shift. She was looking after about three patients during that shift. She went to the patient’s room[5] and, using a mechanical device, assisted him from his bed into a sitting position. She swung his legs around on the bed and put the walker in front of him so he could get out of bed. He complained to her that he was not feeling “right”.
[5]As set out in a plan of the room drawn by the plaintiff – exhibit E
12 Ms Taggert said she had not seen him for some days. She assisted him to the toilet and he buzzed when he was finished. He then proceeded from the bathroom back towards a chair to the side of his bed, using the walker. The plaintiff was supervising him by walking alongside. As they got to the bed, a wheel of the walker became stuck in a protruding wheel of the bed. She knelt down to try to unhook the wheel of the walker. While she was carrying out this task, he fell back onto her. She called out to her manager, Mr Mark Arnold, who came into the room. He pressed the button for help and another nurse came to assist and the patient was lifted off her. The plaintiff left the room to get a mechanical lifter to assist the patient into his chair. This device was nearby, outside his door. At that time, she noticed a pain in her left shoulder. This all happened around 8.45am. Before the end of the day, she completed an incident report.[6]
[6]Exhibit F
13 Ms Taggert said in evidence she was not sure how the patient came to fall. She thought the patient lost balance, but “anything could have happened”. She was not touching him immediately before he fell. A meeting took place between Mr Arnold, Ms Jacqueline Larkings, the plaintiff and Ms Lauren Allsion, to discuss the incident.[7]
[7]Minutes of the meeting - part of exhibit F
Patient M’s earlier admission
14 According to the Palliative Care Admission Assessment (“PCAA”), on admission on 26 July 2013, the patient’s mobility was said to be lowered. In respect of transfer, there was entered “small distances x 1”. As to walking – “small distances x 1”. As to bed mobility – “assist PRN”.[8]
[8]PCB 197
15 According to a note of 26 July 2013 (apparently retrospectively written):
“… Initial assessment after P/C from GP requesting urgent admission to PCU [Palliative Care Unit]. … [patient M] is a[n] 83 year old gentleman who has had functional decline over [the] last month and now is unable to mobilise, weight bare. … [Patient M] had recent fall and was admitted to ED [Emergency Department] 23/7 … Plan was for admission however due to no beds … [patient M] elected to go home rather than spend night in ED … Dr Rosalie Shaw assessed [M], we were able to stand x2 and … [patient M] able to left [scil lift] legs, not able to walk due to weakness, fatigue and leg oedema. … [Patient M] unable to stay at home … .”[9]
[9]PCB 217
16 According to the Patient Progress Notes (“PPN”) dated 26 July 2013:
“PT [Patient Transfer] 2 with assist to commode chair, R[ight] arm has no use, needs assistance to gain balance when transferring in and out of bed. … .”[10]
[10]PCB 226
17 According to an entry in the PPN dated 27 July 2013, Helen Farrell, medical staff, noted:
“83yo gentleman admitted afterhours due to increasing care needs in the context of recent falls at home, on a background of metastatic prostate cancer … Reviewed by Pall[iative] Care Consultant, Dr Shaw, yesterday pm. [M] reports that he had a mechanical fall in the bathroom on 23/7/13 with head strike. … Whilst at home, he had a further fall: no injury sustained, denies any pain. Occurs in context of overall functional deterioration since 3/2013. Has been effectively living in his recliner chair for past 3/12 due to mobility. Has been requiring CoGG for showering 3x /week: unable to continue to shower due to falls risk & being washed in chair … O/E: Frozen right shoulder … Issues: 1. Mobility; 2. DIC destination … “[11]
[11]PCB 231
18 A Falls Risk Assessment Tool (“FRAT”) was undertaken around the date of admission. This was an assessment to determine the patient’s risk of falling. It noted that the outcome was “high risk of falling”.[12] Under the heading “Patient Risk Transfer Assessment”, there was noted:
[12]PCB 200
“Outcome: PTR – the screen has been completed to indicate patient handling status on admission, the data will be used to form the initial nursing care plan …
Moving up the bed: Needs assistance
Rolling in Bed: Completely dependent
Sitting on side of bed: Completely dependent
Tasks: Able to comprehend and co-operate, able to move body on bed
Off Bed:
Bed to chair: Completely dependent
Chair to bed: Completely dependent
Chair to chair: Completely dependent
Bed to trolley to bed: Completely dependent
Tasks: able to comprehend and cooperate, able to stand unsupported, able to maintain balance
Other tasks:
Mobility: Completely dependent
Mobility Equipment: None
…”[13]
(my emphasis).
[13]PCB 200-201
19 Under “FRAT – Outcomes Summary”, there was noted:
“Falls Risk Status
Recent falls, one or more between 3 and 12 months ago
…
Automatic High Risk Status
Patient has had a recent change in functional status and / or medications affecting safe mobility (or anticipated)
Risk Factor Checklist
Vision – Reports/observed difficulty seeing – objects/signs/finding way around
Mobility – Mobility status appears unsafe/impulsive/forgets gait aid
Transfers – Transfer status appears unsafe; ie over-reaches, impulsive.”[14]
[14]PCB 202
20 As part of the Outcomes Summary, there was noted:
“Mobility
- Ensure the patient has an appropriate gait aid
…
- If deterioration of mobility status this admission/past 6 months, refer to physio as per referral criteria
Transfers
- If requiring active assistance x 2, transfer with appropriate equipment or
as documented by clinician… .”[15]
[15]PCB 203
The hospital’s clinical records
21 The clinical records appear to be divided into different parts. They were:
· the Palliative Care Admission Assessment (“PCAA”) – notes taken when the patient was admitted on 26 July 2013.[16]
[16]PCB 196-199
· the Falls Risk Assessment Tool (“FRAT”) – various assessments undertaken to assess the risk of the patient falling.[17]
[17]PCB 200-216
· the Sub-Acute Nursing Care Plan (“SANCP”) – a handwritten record kept in the patient’s room into which the nurses on each shift would enter details of the plan for the patient and in respect of observations, mobility, patient condition and the like.[18]
· the Patient Progress Notes (“PPN”) – some handwritten but mostly typed notes (the latter were entered in the Unit computer and not kept in the patient’s room) of a range of health professionals, including doctors, physiotherapists, occupational therapists, nurses and other medical staff.[19]
[18]PCB 218-224
[19]PCB 226-311
22 It is unnecessary to examine all the clinical records of patient M. Those which are of most relevance concern the patient’s mental and physical state in the days leading up to the fall on 14 August 2013. The PPN over the period from admission until 11 August 2013, aside from the entry of 29 July 2013, which referred to balance as one of the key issues, do not record any particular difficulties with mobilisation nor transfer, which I accept they would have done had they been observed. There were regular references to the prescription of opioid medication. Up until 13 or 14 August 2013, the plan was to improve the patient’s functional mobility with the prospect of him returning home. To that point, the patient was able to transfer to the bathroom, and walk various distances using his walker, supervised by one nursing staff, without incident.
23 A PPN entry, which appears to be of 7 August 2013,[20] noted:
“… is sitting up out of bed in his chair. Has been feeling good … .
…
Feels his thinking has become a bit more vague over the last few days. He describes a similar episode previously. Explained that pain meds might be contributing to this vague thinking he is having.”
[20]PCB 285
24 For a number of days after that, the patient was noted to be alert and orientated.
25 On 11 August 2013, the patient was complaining not only of right arm pain, but also left arm pain. He thought this might relate to overuse on that side.[21]
[21]PCB 295
26 A medical examination conducted by Dr Peter Eastman and others on 12 August 2013 noted left shoulder, as well as right shoulder, soreness.[22]
[22]PCB 298
27 An entry of 12 August 2013 by the occupational therapist stated:
“… [patient M] was very drowsy and began to fall asleep during conversation. He reported having difficulty concentrating and felt this was due to receiving a higher dose of pain medication this AM … [patient M] reports feeling fatigued in the afternoons and states he would appreciate being allowed to sleep, though he understands staff schedules. …[Patient M] states that he doubts any further rehabilitation will be achieved and feels he can manage at his current level of function at home … .”[23]
[23]PCB 301
28 On 12 August 2013:
“Pt [patient] feeling very tired this pm and sleeping on/off … .”[24]
[24]PCB 302
29 On 13 August 2013 at 12.27pm:
“[Patient M] … is feeling much more confused this morning, and having some word finding difficulties. Also feels he is going off on tangents, and is taking a while to focus at the moment.
Feels he has lost confidence walking, and feels that his L hip will give way on him.
… .”[25]
(my emphasis)
[25]PCB 304
30 On 13 August 2013 at 1.31pm:
“Occupational Therapy/PT: Review of [M] this am. [M] SOOB, had reported to SW that he couldn’t get out of chair by himself. With encouragement from Physio ... [patient M] demonstrated independently standing from electric lift chair (once raised approx 40 degrees). In conversation today it was observed that … [patient M] was having word finding difficulties and info processing was delayed. … [Patient M] was aware of his ‘confusion’. Medical team advised. In relation to yesterday’s discussion of home, [M] identified being able to walk to toilet and back and be independent with this task as goal for home … .” [26]
[26]PCB 305
31 On 13 August 2013 at 2.02pm, it was noted:
“… Family stated he was having trouble with his thought process today and were querying medications. Pt appeared to have a good day … .”[27]
[27]PCB 306
32 On 14 August 2013 at 2.52am:
“Pt toileted before settling, BO,PUIT. … [Patient M] s[e]ttled into bed and has slept for long periods overnight. Nil issues at TOR.”[28]
[28]PCB 307
33 On 14 August 2013 at 9.52am, presumably after the fall:
“… He himself would be keen for discharge to residential care with his wife but issues regarding his wife[’]s resistance to residential care. … [Patient M] may not be able to return home but will continue to work with Allied Health. Was due for a home visit tomorrow but today has increased weakness/unable to walk according to nursing staff.”[29]
[29]PCB 309
34 On 14 August 2013 at 11.51am:
“… [Patient M] feels that when he woke up this morning he wasn[’]t too good, and his legs gave way, causing him to fall. He had pain right across his lower back at that point.
… .”[30]
[30]PCB 310
35 On 14 August 2013 at 3.16pm:
“Pt [patient] alert and orientated this shift. Having trouble ambul[a]ting this shift with his legs giving way on him whilst walking. Use of the stand hoist for the rest of the shift. C/O [complained of] pain in shoulders and also back. … .”[31]
[31]PCB 311
36 On 14 August 2013 at 3.23pm:
“Occupational Therapy: …
Following … [patient M][‘]s fall this AM, OT, … [patient M] and family have decided to cancel tomorrow[’]s home Ax. … .”[32]
[32]PCB 312
37 On 14 August 2013 at 8.21pm:
“… Very apprehensive about transfer[r]ing due to fall this am. T[r]ansfer[r]ed x 2 to assist. … .”[33]
[33]PCB 313
The Plaintiff’s expert evidence
38 Evidence was given by Associate Professor David Fonda, an experienced geriatrician. His reports of 7 March and 26 April 2019 were tendered into evidence.[34] He examined the clinical records.
[34]Exhibit H
39 Professor Fonda noted patient M had a range of medical conditions, including Type 2 diabetes, hypertension, atrial fibrillation, a total left hip joint replacement, osteoarthritis and metastatic prostate cancer, including bony metastases to the right humerus.
40 He noted patient M had become frail at home and had limited movement in his right shoulder. In the fortnight after his admission, Professor Fonda said patient M’s medical condition did not significantly change and that he was able to ambulate with supervision using the walker.
41 Professor Fonda accepted that the notes recorded the pain-relieving medication, Oxycodone,[35] was increased from 10 milligrams, morning and night, to 15 milligrams, morning and night, on 7 August 2013. Then, on 12 August 2013, the dose was again increased to 20 milligrams, morning and night. On 13 August 2013, the dose was reduced again to 15 milligrams, morning and night.
[35]Referred to in Professor Fonda’s report as OxyContin
42 Professor Fonda noted observations in the PPN, including:
· 12 August 2013 – “Pt [patient] feeling very tired this pm and sleeping on/off … .”[36]
[36]PCB 302
· 13 August 2013 – “… [Patient M] is feeling much more confused this morning and having some word finding difficulties. Also feels he is going off on tangents, and is taking a while to focus at the moment. Feels he has lost confidence walking, and feels that his L[eft] hip will give way on him.”[37]
[37]PCB 304
· 13 August 2013 – occupational therapy note – “in conversation today it was observed that … [patient M] was having word finding difficulties and info processing was delayed. … [Patient M] was aware of his confusion.”[38]
[38]PCB 305
· 13 August 2013 – nursing note – “family stated he was having trouble with his thought process today and were querying medications. Pt [patient] appeared to have a good day.”[39]
[39]PCB 306
· 14 August 2013 – “… [Patient M] feels that when he woke up this morning he wasn’t too good, and his legs gave way, causing him to fall. He had pain right across his lower back at that point.”[40]
· There were notes of confusion in subsequent days.
[40]PCB 310
43 Professor Fonda said it was clear from these notes that from 12 August 2013 onwards, patient M had become drowsy, sleepy and had difficulty with concentration. He described this as a significant change in the patient’s condition. Despite this, there was nothing in the SANCP of any change in the Care Plan. Specifically, the “patient condition” remained as “S”, which he assumed meant stable.
44 Professor Fonda concluded that the change in the patient M’s health related to an increase in narcotic medication, which put the patient at even greater risk of falls, noting that he was already in a high risk falls category. In those circumstances, he said it would have been prudent for the patient to have increased assistance while mobilising. He said the reference in the PPN of 13 August 2013, which recorded the patient felt he had lost confidence walking and that his left hip would give way, was significant information that ought to have been part of a handover to the nurse at the start of a shift.
45 In cross-examination, it was put to Professor Fonda that there was no reference in the PPN to any difficulties patient M had with ambulation over 12 and 13 August 2013. It was his experience that problems with ambulation are usually recorded.
46 It was put to him that the entries in the PPN of 13 August 2013 suggested patient M was having a good day, which would indicate, once the pain-relieving medication was reduced to 15 milligrams, morning and night, there was no difficulty with ambulation. Professor Fonda said that the drug was long-acting, over eight hours, and the patient’s thought process would still be compromised.
47 It was pointed out that in the SANCP, the nurses on each shift circled “S”, meaning that patient M’s condition was stable. This related to the patient’s mobility, transfer and lifting. At no point had any nurse seen fit to change that category. It was suggested that that, and the fact that his medication had been reduced, showed there was no significant change in the patient’s condition. Professor Fonda agreed that, on the basis of that alone, there had been no change.
48 However, he said that on the basis of the other entries, there had been a change, although not until 12 August 2013. In particular, reference to being tired, sleepy and confused, and concern about his hip giving way. He said that was a significant change to the patient’s medical condition.
49 It was suggested that in a number of SANCP notes, over 12 and 13 August 2013, there was no reference to any difficulty with mobility or balance. He said that the increase in medication led to delirium, from which there can be a delayed recovery.
50 Professor Fonda conceded he was a geriatric specialist, and not a palliative care specialist, and experienced minds might differ as to the effect of the medication. He said that older people may be more affected by narcotics; some might tolerate it and others are less able to do so. Older people are more likely to become confused.
51 Evidence was given by Ms Louise O’Shea. She is an experienced nurse who has been involved over a number of years in the implementation of occupational health and safety protocols in hospitals to prevent nurses lifting patients. Ms O’Shea’s comprehensive report dated 18 February 2019 was tendered.[41] She was provided with all of the hospital notes, and a range of the Centre’s policies, protocols and procedures.
[41]Exhibit G
52 As to the admission history, Ms O’Shea noted that patient M had two falls at home and, in addition, was unable to get out of bed. She said these were important elements to consider.
53 Having reviewed the hospital notes, Ms O’Shea said there was no real risk assessment of the task that was being carried out at the time of the patient’s fall. She said this was a high risk and hazardous manual handling task. She said it was important that palliative care patients be moved safely and upright.
54 Ms O’Shea was taken to the various alternative equipment for patient transfer.[42] Of those, she said the most appropriate ones were as depicted in exhibit C, a standard shower chair, or exhibit D, a “stedy”. She thought the devices depicted in exhibits A and B were too cumbersome. She said the walker was inappropriate as it was difficult to manoeuvre in tight spaces. In steering around objects such as beds, the wheels could become caught, particularly if the patient only had only one good arm. Further, with the walker, there was nothing to stop the patient falling if his hip or leg gave way. She was critical of the walker and said it contributed to his fall. If he had used either of the devices in exhibits C or D, he would not have fallen.
[42]Exhibits A, B, C and D
55 Ms O’Shea said that had an appropriate falls risk assessment been carried out, it would have revealed there was an extreme risk of the patient falling and injuring either himself or a nurse. She said that not all high falls risk patients were going to fall. It was important to determine whether a patient was able to maintain his own balance. A previous falls history was important in that respect. If a patient was assessed as being able to maintain his own balance, and there were no recent falls, then the steps taken by the hospital in respect of patient M would have been reasonable. However, with patient M’s background of the falls at home and his more recent documented problems with balance, those steps were not sufficient.
56 Ms O’Shea said the mobilisation of the patient was in breach of the hospital’s own Smart Moves/Smart Lift protocol, given the falls history.[43] That protocol provided that if there was a falls history, then in relation to off bed tasks, the patient would be designated as “not able to assist”. In such circumstances, the patient should be regarded as requiring “maximum assistance”. This involved the active assistance of two carers, and the use of patient handling equipment.
[43]PCB 437-438
57 Further, the “Falls Risk Assessment Tool”[44] noted that the patient was “completely dependent” in respect of transfer from bed to chair, or chair to bed or chair to chair. In those circumstances, given that level of dependence, the walker under the supervision of one person was inadequate and unsafe.
[44]PCB 200-202
58 Ms O’Shea noted that about seven hours after the fall, it was recorded that the patient was provided with a device, being a “stand hoist”, to prevent him falling.[45]
[45]PCB 311
59 She said a proper risk assessment involved an assessment of the consequences which may flow from a particular task, and the likelihood of those consequences occurring. That helped to prioritise hazards. She assessed the hazard, in the case of the plaintiff, as extreme.
60 Ms O’Shea said the notes indicated that mobility plans were reviewed every Friday unless there was a deterioration in the patient’s condition. The incident occurred on a Wednesday, and there had been no re-assessment of the mobility plan from the previous Friday. This was inappropriate given the findings of drowsiness, loss of confidence in walking and problems with the left hip, as were noted on 13 August 2013. Further, Ms O’Shea said the plaintiff did not look after the patient over the previous four or five days. She was not then aware of those entries. She said it was just a matter of luck the patient had not fallen before. It was no defence to say that because the patient had not had a fall, that falls risk factors were not present.
61 Ms O’Shea noted that, according to the hospital’s “Falls Risk Guideline”, a patient should be re-assessed for a falls risk when there was a change in the patient’s condition. The matters to be taken into account included a previous history of falls, leg muscle weakness, poor balance or unsteadiness, and loss of confidence or fear of falling.[46] These factors were all present, and ought to have led to a risk assessment around 13 August 2013, which in turn ought to have resulted in more equipment being provided to ensure safe mobilisation.
[46]Exhibit G - 4.90
62 Ms O’Shea was taken to the Manual Handling Risk Assessment documents.[47] She said the manual handling assessment ought to have been carried out as these documents suggested. The four questions in the document should have been answered.
[47]Barwon Health Hazardous Manual Handling Risk Assessment & Control - PCB 410-415
63 In cross-examination, it was put to Ms O’Shea that one way to determine a risk of falling was to utilise the protocols, but another way was for those treating the patient, including nurses, physiotherapists and other health professionals, to make an assessment. Ms O’Shea said the written notes and history were important. Ms O’Shea said it was also important to follow the criteria set out in the Smart Moves/Smart Lift policy.[48] According to that criteria, she said that the patient was “completely dependent”, as was noted in the PCN. She said that with his difficulties with mobility, and the initial assessment, he ought to have more than a gait aid, or walker, to assist in his transfers.
[48]PCB 434
64 It was put to Ms O’Shea that there was no one better to assess his falls risk status than a physiotherapist, trained in the area, and familiar with the patient. Ms O’Shea said patient M ought to have been assessed in accordance with the Guidelines. She said a nurse was as capable as a physiotherapist of making an assessment.
65 It was put to Ms O’Shea that it was clear that patient M was able to walk significant distances, including 15, 20 and even 70 metres, and was observed to be able to do so without difficulty. Ms O’Shea said this was not a risk assessment. She said that the assessment performed by the physiotherapist did not accord with the Regulations. She said patient M’s falls history was very relevant.
66 Ms O’Shea said that the Physiotherapy Falls Risk Assessment, Appendix A,[49] included the requirement for the “Timed Up & Go” and the “Step Test”. These tests, she said, would have examined balance, mobilisation, lower body strength, and ought to have been carried out. It was put to her that she was unable to say what the results of these tests would have been. She said she was not there to see the tests but said that the assessment was inadequate. She said the two most important factors to take into account were the patient’s history of falls and his capacity to balance. She said patient M was not able to stand unsupported, was not able to maintain his own balance and had a history of unexpected falls.
[49]PCB 467-468
67 It was put to Ms O’Shea that every one of the nursing assessments between 30 July and 14 August 2013 recorded the patient using the walker with one supervising nurse. There was no reference anywhere to any difficulty with mobilisation with that support. She said that may have been the case, but that did not mean that he was not at risk of falling and or in need of further aids.
68 Ms O’Shea said there had been a change in patient M’s medical condition, and that required a re-assessment. She said it was a significant change and there were new factors, including cognitive impairment, postural hypotension and new environmental factors. These all warranted a new physiotherapy FRAT. It was put to her that even if there had been a re-assessment, nothing would have changed. She disagreed. She said that the patient was at a low point and deteriorating around the time of his fall and was at extremely high risk of falling.
The Defendant’s witnesses
69 Evidence was given by Mr Christopher Lindner, the head physiotherapist for Barwon Health. He was taken to a range of Barwon Health’s documents and protocols and explained their use and meaning. He said the “Falls Risk Identification, Minimisation and Post Fall Management for Acute & Sub Acute Sites” document[50] was a clinical guideline designed to assist staff to identify patients at risk of falling and develop strategies to prevent such a risk. He said the “Smart Moves/Smart Lift” was a Barwon Health protocol document, which was used in mandatory training for all clinical staff. The document “Physiotherapy Falls Risk Assessment and Management”[51] was a document designed to assist physiotherapists make objective and consistent assessments by scientific measure, and to develop risk-mitigation strategies.
[50]PCB 382-383
[51]PCB 463
70 Mr Lindner said in palliative care units, such as the Centre, with persons over eighty years old, almost 100 per cent would be assessed as being of “high risk of falling”. To identify a patient’s risk of falling, there needed to be a history taken, in particular of previously unexpected falls, together with a functional and objective assessment of the patient. Part of the physiotherapist’s task was to assess balance, strength and mobility.
71 Exhibit One showed a walking aid designed specifically for people who had the use of one arm only.
72 When a patient was first assessed, it was necessary to assess the patient in accordance with the Smart Moves/Smart Lift policy. The Physiotherapy Falls Risk Assessment[52] required, as part of the objective assessment, a number of tests. An assessment required any two of the following tests:
[52]PCB 464
· Timed Up and Go
· Step Test
· Thirty Second Sit to Stand Test; and
· Falls Efficacy Scale.
73 The Timed Up and Go and Step Tests were related to balance. He said they were relevant tests and useful to assess falls risk.
74 Mr Lindner was taken to the Risk Assessment Flowchart contained in the Smart Moves/Smart Lift policy. He accepted that if a patient had a history of unexpected falls, he would be categorised in the “not able to assist” in the off-bed tasks. He did not necessarily agree that a patient who could not get out of bed would be assessed as unable to stand unsupported, or maintain balance once supported. He accepted that according to the policy, if a patient fulfilled one category, including a history of unexpected falls, he would be assessed as “not able to assist for transfers and will require maximum assistance”. Maximum assistance included the assistance of at least two carers and the use of patient-handling equipment.[53]
[53]PCB 438
75 Mr Lindner accepted that if there was a change in the patient’s medical condition, a new FRAT would have to be undertaken. Issues such as being unsteady on feet, more confused or lack of confidence when walking, may require a new assessment by the medical team and may be relevant to the risk of falling. If those issues were ongoing, then the nurses on the next shift should be informed. He said, of most importance was the clinical observations of those looking after the patient. If there was an observed deterioration, staff members should do something about it.
76 Evidence was given by Dr Eastman, a palliative care physician, and currently the clinical director of the Palliative Care Unit of Barwon Health. He was a consultant to the Centre in August 2013.
77 Dr Eastman could not recall patient M, but from the various clinical notes, was aware he had metastatic prostate cancer and a range of other medical conditions. The patient was struggling at home, with worsening pain in his right hip and shoulder. According to the notes, Dr Eastman had examined patient M on a number of occasions.
78 As to the medication, patient M had been commenced on OxyContin, 5 milligrams, twice per day. OxyContin is a powerful opioid pain-relieving drug. That medication was given usually at 8.00am and 8.00pm, and would last about twelve hours. In addition, from time to time, the patient was administered Endone or OxyNorm for “break-through” pain relief. This was a shorter acting opioid pain reliever.
79 Dr Eastman was taken through the administration of these drugs. At the outset, patient M received 5 milligrams of OxyContin twice per day. This was for right arm and shoulder pain. In addition to the morning and evening doses of OxyContin, patient M was given Endone on 11 August 2013,[54] OxyNorm on 11 August 2013,[55] Endone on 12 August 2013[56] and OxyNorm on 13 August 2013 in the early morning.[57] Up to 12 August 2013, in addition, patient M received 15 milligrams of OxyContin twice per day. On 12 August 2013, that was increased to 20 milligrams twice per day, although from the notes, that increased dose was administered at 8.00pm on 12 August 2013, and 8.00am on 13 August 2013, before being reduced back to 15 milligrams. That medication could potentially trigger or precipitate a delirium,[58] and an acute state of confusion, he said.
[54]PCB 295
[55]PCB 296
[56]PCB 297
[57]PCB 303
[58]T517, L14
80 Dr Eastman was also taken to various references to patient M’s mental state, including that he felt vague over a number of days up to 8 August 2013, probably relating to his pain medication.[59] On 12 August 2013, the patient reported that he was very drowsy, falling asleep during conversation, with difficulty concentrating, as a result of the high dose of medication. He reported feeling fatigued,[60] and was very drowsy and began to fall asleep during conversation on the afternoon of 12 August 2013.[61] He said he was feeling much more confused on the morning of 13 August 2013, with word‑finding difficulties. He was said to be going off on tangents and taking a while to focus. Significantly – “[he] feels he has lost confidence walking, and feels that his L hip will give way on him”.[62] That same afternoon, an occupational therapist noted patient M was having word‑finding difficulties, and information processing was delayed.[63] Dr Eastman said opioid medication could give rise to the sort of mental difficulties the patient complained of. He considered this patient’s mental difficulties were related to the opioid medication.[64]
[59]PCB 285
[60]PCB 301
[61]PCB 302
[62]PCB 304
[63]PCB 305
[64]T519, L20 – 520, L12
81 Dr Eastman noted that in the period leading up to 11 August 2013, generally, patient M’s condition was progressing satisfactorily, including that he was able, on occasions, to ambulate various distances. He noted some right arm pain.
82 Of significance is the following evidence of Dr Eastman in cross-examination:
Q:“Does that indicate this man is having some disturbance of his thought processes, quite probably as a result of the opiate medication that’s been prescribed to him to relieve his pain?---
A:There does seem to be a temporal relationship, yes.
Q:And once that’s happened, once he’s expressing these symptoms of – or being seen to have symptoms of confusion, with word finding difficulties, and being unable to focus, that indicates that he’s a greater falls risk than he would be had he still had his mental faculties intact; is that so?---
A:Potentially, yes.
Q:And that from that moment onwards he’s potentially posing a hazard for himself and for staff who may have to try and mobilise him because of the falls risk he now poses?---
A:Because of his change in – change in condition, yes.
Q:Because of the change in his condition yes. There’s been a significant change in his mental condition, hasn’t there?---
A:It does – on the documentation that would seem to be the case, yes.
Q:And coincidentally with that, or perhaps as a result of that, it’s also noted, isn’t it, that he’s – he feels he’s lost confidence walking?---
A:Yes.
Q:And he’s feeling his left hip will – may give way on him?---
A:Yes, yes.
Q:So again there’s been a change in his condition, and he’s lost confidence in his ability to walk and is now fearful that his left hip may give way?---
A:That’s what the documentation says, yes.
Q:And that, too, would indicate that he’s now an increased risk of falls compared to the – how he would have been if he still had the confidence in either his walking ability or his left hip, isn’t it?---
A:Potentially, yes.
Q:The step was taken to reduce his Oxycodone to 15 milligrams. We’ve had evidence in this case from a Professor Fonda. Do you know Professor Fonda?---
A:I don’t know Professor Fonda.
Q:Professor of medicine (indistinct) geriatrics is his speciality, perhaps similar to yours. But he has described that what happens with an – prescription of medication, that it can be that one has a threshold dose at which one functions reasonable or normally, and if that threshold is increased then it can trigger – it can tip them over the edge and make him vulnerable to delirium or confusion. Would you agree with that?---
A:Yes.
Q:And that, if that has happened, and he has developed symptoms of delirium, and one reduces the medication back, it can take hours, days, or weeks for the effect of this to wash out of him. Do you agree with that?---
A:Generally with OxyContin probably a steady state is reached in about a day for – for most - - -
Q:In about a day?---
A:For most people, yes.
Q:So, at least after, if the Oxycodone is reduced from 12.27 pm on 13 August, he’s going to be vulnerable – he’s going to be likely to show the effects of the confusion, the delirium, for another day beyond that, another 24 hours beyond that, in rough - - -?---
A:It’s individual. It’s difficult, but the reduction in the dose would have meant that the overall level would have been coming down as well.
Q:Coming down, but for the 24 hours after 12.27 pm on the 13th this man is posing a significantly increased risk of falling, isn’t he?---
A:The fact that he – he’s changing the clinical condition does indicate that he – he was at increased risk of falling, yes.”[65]
[65]T520, L12 – T522, L9
83 Evidence was given by Mr Christopher McCormick, who, in 2013, was a Grade 2 Nurse working on the ward at the Centre. He could not recall the patient. He said that if there was a problem with balance or ambulation in the course of a shift, normally a nurse would record that in the SANCP or the PPN. If there was no adverse recording in those notes, then he would presume that the patient was able to ambulate satisfactorily.
84 According to the SANCP, Mr McCormick looked after patient M on the afternoon shift of 13 August 2013. One of the other nurses on that day had recorded the patient as “S”, meaning his condition was stable. He was asked whether it was important for a nurse commencing a shift to be told that a patient had lost confidence in walking or that he felt his left hip would give way. He said it would, but many patients do not have confidence walking and that may lead to a re-assessment of the patient’s walking capacity, which he would do simply by observing the patient undertake his usual movements and routine. He said pretty much all of the patients in the ward had mobilisation issues.
85 Evidence was given by Ms Leanne Wilson, an occupational therapist, who worked for Barwon Health in 2013. She could not particularly remember patient M, although could remember his room. If a patient was identified as needing occupational therapy, an assessment by an occupational therapist was made. Patient M was admitted for restorative care, with the plan that he would eventually return home.
86 Ms Wilson obtained a history from patient M, according to the PPN of 29 July 2013 of:
“… Stated (R)UL oedema and pain is a key issue, as is decreased balance; had been using his wife[’]s 4wf w x1 hand which he feels contributed to one of his recent falls (wheel got caught on corner as he backed into toilet and he pulled it vigourously and fell back). Also has (L) pelvic pain after has been moving; aware that he has metastatic bone disease: … [patient M]s wife also has a WCH secondary to chronic LBP and he has used this a bit also. They both have electric recliner chairs. [patient M] did slide off his after it had elevated and he didn[’]t quite manage a full stand; … .”[66]
(sic)
[66]PCB 238
87 In relation to the second fall, Ms Wilson thought that patient M may not have been using the device properly, or his feet were not properly placed. Part of the occupational therapy assessment was a 30-metre walk. He appeared to do this without a problem. It was decided to provide him with a one-handed walker.
88 The room in which patient M stayed was typical of those at the Centre. There was no particular environmental danger. Ms Wilson continued to see the patient with a student, Deonie, whom she supervised.
89 On 13 August 2013, Ms Wilson made a note that patient M reported that he was unable to get out of the chair himself, but was able to do so eventually with encouragement from the physiotherapist.[67] That may indicate confusion and, potentially, a change in the patient’s cognitive capacity. That was why the doctors were advised of that change. An earlier entry by the doctors[68] was in fact likely to reflect an examination after that undertaken by the occupational therapist.
[67]PCB 305
[68]PCB 304
90 Evidence was given by Ms Samantha Humphries (formerly Boddy), the registered nurse working at the Centre who undertook the initial admission of patient M. She completed the admission assessment[69] and noted the patient had reduced mobility. She assessed “transfer” and “walking” as “small distances x 1”. This meant to transfer a small distance with the assistance of one person. She undertook a FRAT at the time,[70] and under the heading “Patient Transfer Risk Assessment”, noted:
[69]PCB 196-7
[70]PCB 200-202
“Off Bed
Bed to chair: Completely dependent
Chair to bed: Completely dependent
...
Tasks: Able to comprehend and co-operate, Able to stand unsupported, Able to maintain balance
… .”
91 In the “Outcomes Summary”, recent falls were noted. Under “Risk Factor Checklist”, there is recorded:
“Mobility - Mobility status appears unsafe / impulsive / forgets gait aid
Transfers - Transfer status appears unsafe ie over-reaches, impulsive
… .”[71]
[71]PCB 202
92 As a result of this input, Ms Humphries determined patient M’s status as “high risk of falling”.
93 As a result, the computer program automatically determined the following:
“Mobility
- Ensure the patient has an appropriate gait aid
…
- If deterioration of mobility status this admission/past 6 months, refer to physio as per referral criteria
Transfers
- If requiring active assistance x 2, transfer with appropriate equipment or as documented by clinician
… .”
94 Ms Humphries said that about 99 per cent of patients in PCU would be classified as high falls risk.
95 Ms Humphries was taken to the SANCP. It was her entry on 26 July 2013 which assessed mobility and transfer as “small distances x 1”.[72] She accepted that if there was a change in the patient’s condition, there should be a change in the Care Plan. If the patient complained of, or was observed to be confused, she would expect a change in the Care Plan and for this to be conveyed at handover.[73] If a patient complained of loss of confidence in walking or that their hip would give way, she would expect to see something in the SANCP.
[72]PCB 219
[73]T591
96 It was suggested to her that the FRAT she carried out on admission was inconsistent with the criteria in the Smart Moves/Smart Lift policy.[74] She was asked:
[74]PCB 437-438
Q:“Okay. So would you therefore agree by looking at this criteria that he doesn’t fulfil the last criteria?---
A:Well, at the time I thought obviously that he was completely dependent (indistinct) full assistance.
Q:Yes. Okay. So would you agree, based on this criteria in this document that the patient should have been assessed as not able to assist for transfers and should have required maximum assistance based on this smart moves, smart lift criteria?---
A:Well, probably based on this piece of paper, yes, but I was just going on by what he was telling me and what I could see.
Q:Yes. Okay. But in terms of this document, he’s classified as not able to assist?---
A:Well, going by this document it looks like it, yes.”[75]
[75] T593, L8-21
97 That document suggested that if a patient was assessed as “not able to assist for transfers”, that patient would “require maximum assistance”. Maximum assistance was said to be:
“Involves active assistance of at least 2 carers:
The use of patient handling equipment is essential such as a hoist, slide sheets, hover mattress, Jordan frame, pat slide and other equipment.”[76]
[76]PCB 438
98 She said, however, that it would depend upon the nature of the falls the patient had, whether from environmental factors, or from decreasing mobility.
99 Ms Humphries was taken to a nursing note taken on 26 July 2013.[77] She accepted that did not reflect a different assessment from that made by her. She had not seen that assessment. She could not say whether, had she read the note, it would have changed her assessment, as she was relying upon the history provided to her.[78]
[77]PCB 217
[78]T600
100 Evidence was given by Ms Donna Chapman, an experienced physiotherapist, who worked in the Centre in 2013. She recalled the patient and assessed and treated him on a number of occasions.
101 Ms Chapman said she would have read the admission assessment documents, including that patient M was to be transferred small distances, with supervision by one person. Small distances meant less than 10 metres. She assessed the patient and made various notes in the PPN.[79] She obtained a history of the falls the patient had previously had at home.
[79]PCB 238-239
102 In respect of the history of the second fall, she accepted balance could have been a factor in that fall. On 29 July 2013, according to her note, patient M was able to walk 20 metres. She observed him in this process. She said 95 per cent of patients in the PCU were assessed as being a high falls risk. In this assessment, she did not recommend slings, hoists or other falls equipment as the patient was able to do a range of tasks on her assessment. It was hoped that he would return home and it would be difficult to use that equipment in his home. The walker was better to increase his functional strength.
103 Ms Chapman was aware of the guidelines for the assessment of falls risks.
104 She was aware of the “Physiotherapy Falls Risk Assessment and Management” document.[80] She conducted the Physiotherapy Falls Risk Assessment. She obtained a falls history, as the document required, a functional assessment and an objective assessment. She determined the patient should have a one-handed walker, which was obtained. She said the document was a guideline for physiotherapists working with patients in the PCU. She said it was not clinically important to undertake a measured objective test as she was able to obtain a good clinical picture from the patient and her assessment of him over about sixty minutes.
[80]PCB 463-66
105 Ms Chapman said patient M was managing pretty well. He was able to get to the bathroom. His biggest issue was pain in the right arm. She said he was never a patient who needed the sorts of aids as depicted in exhibits A, B, C or D. She said he was able to walk significant distances without being unstable, using the walker, and with one person supervising. At one point, the patient was able to walk to a distance of 70 metres or so. If the patient was to be discharged home with the chairs and slings referred to, it would be very difficult for his wife to assist him.
106 The occupational therapy assessment of 12 August 2013 referred to patient M as being very drowsy, with difficulty concentrating and feeling fatigued. Ms Chapman said she would have been made aware of these entries. On one occasion on 13 August 2013, the occupational therapy note reported he had difficulty getting out of his chair. She was the physiotherapist who was noted to have encouraged him and demonstrated correct use of the chair.
107 Ms Chapman was taken to her note of 29 July 2013, which said that the key issues were pain in his right arm and balance. In relation to the Smart Moves/Smart Lift policy and the reference “patient does not have a history of unexpected falls?”,[81] Ms Chapman said the second fall at home may have been about patient M’s balance, but also related to cognition and technique. She said it was possible the fall was unexpected.
[81]PCB 437
108 When taken to the various entries where patient M was said to have mental difficulties, it was put to Ms Chapman that with his already high falls risk and then being unsteady on his feet, he ought to have been re-assessed as an extreme high falls risk. She did not agree. It was put to her that given the patient had become unsteady on his feet, a safer option would have been to place him in one of the more secure chairs. She agreed it would be safer, but it would not increase his functional practise.[82]
[82]T646, L26-30
109 In relation to him becoming unsteady on his feet, Ms Chapman was asked:
Q:“But at the very least, you would want him reassessed, to see whether it’s still safe for one staff member to be trying to mobilise him using a four-wheel frame?---
A:Correct.”[83]
[83]T647, L7-9
110 Ms Chapman accepted, around 13 August 2013, there was a significant deterioration in patient M’s cognitive functioning, such that the medical staff should have looked at it.[84] She agreed that a diagnosis had been made that patient M had symptoms of a delirium.[85] She accepted that if a patient had symptoms of a delirium, it was not going to be safe to try and mobilise them. She said:
[84]T649, L25-30
[85]T650, L18-20
Q:“And so can I suggest to you that it would’ve been appropriate, once the medical staff had looked at him and found that there was a delirium, for, at that point, that there be a reassessment on his means of being mobilised?---
A:Yes. Do you mean a physiotherapy assessment or a nursing assessment?
Q:One or the other?---
A:Yes.
Q:One or the other should have been taken, should it?---
A:Yes.
Q:After that medical review?---
A:Yes.
Q:And if that assessment revealed that, for the time being, until the delirium passed, he should be mobilised only by use of a shower chair or a steady (sic), that would be entirely in keeping with what one might expect?---
A:It’s an option, yep.”[86]
[86]T650, L26 – T651, L7
111 Ms Chapman said, further:
Q:“Yes. Would you agree with me, the doctors then reviewed him after you saw him and came to the view they did about his status as a high falls risk patient. Would you agree with me that these matters should’ve been put into the nursing care plan at that time, that is on the 13th?---
A:Ah, yes, that his cognition – that it changed, yes.
Q:And that way, anyone taking over the 14th would at least be alerted to that fact?---
A:Yes, and – and that it would be discussed in the, um, 9 o’clock meetings or the MDT.”[87]
[87]T652, L4-12
112 Ms Chapman said that in the days after the entry of 13 August 2013,[88] patient M continued to be assessed by medical staff.
[88]PCB 304
113 Evidence was given by Dr Helen Farrell, a palliative medicine physician with Barwon Health. She worked at the Centre in 2013. She recalled patient M. She was part of the medical team looking after him. She undertook an initial assessment close to the day of his admission.[89] She noted a number of falls at home, and an increasing functional decline. Patient M was admitted with the goal of increasing his level of function through restorative care, and to better manage his pain relief. She recorded that for him to remain at home was challenging for his wife, who also had physical difficulties.
[89]PCB 231
114 Dr Farrell said she would have read the notes of other health practitioners, as recorded in the PPN. Subsequently, after physiotherapy and occupational therapy assessment, patient M was provided with a walker. She was content that was appropriate.
115 Dr Farrell was taken through patient M’s medicine charts, and noted the prescription of OxyContin, which commenced at 5 milligrams twice per day, increasing to 20 milligrams twice per day and then back to 15 milligrams twice per day, together with “breakthrough” doses of Oxycodone or Endone to treat acute pain.
116 It was noted at a number of multidisciplinary team meetings that the ultimate aim was to return patient M home, initially, it was thought, around 14 August 2013. This turned out not to be the case. Patient M’s condition deteriorated and he passed away in a nursing home, sometime later.
117 Around 1 August 2013,[90] it was noted that patient M was not feeling good, and sleepy. Dr Farrell said this may have indicated an evolving delirium. This could be caused either by the opioid medication or possibly constipation.
[90]PCB 255
118 Notwithstanding, until early August 2013, patient M continued to make gains. She saw no reason to change his mobility status. On 6 August 2013, it was noted that he was unsteady on his feet the day before.[91] She said that if she had been concerned that this affected his risk-of-falling status, she would have documented it and spoken to medical colleagues, including the physiotherapist. A note by the medical team of 7 August 2013[92] was that patient M said the walker was better and he felt safer. Around 8 August 2013, there was a note that he was vague.[93]
[91]PCB 274
[92]PCB 280
[93]PCB 285
119 On 12 August 2013, the OxyContin was increased to 20 milligrams twice per day. This was to provide more stable pain relief. This, together with the breakthrough pain medication, represented a moderate opioid dose for a patient of his size. Dr Farrell said that had she considered it appropriate, she would have changed his mobility status, but saw no reason to do so.
120 On 13 August 2013, the Oxycodone was reduced back to 15 milligrams twice per day. The purpose of this was to exclude the increased medication as being the reason for his change in mentation. She said this represented a clinical change and the patient’s mobility had been impaired.
121 Dr Farrell thought that the delirium was resolved once the OxyContin was reduced to 15 milligrams twice per day. That meant the medication was a reason for his change in status. The medical notes indicated the delirium had resolved.[94]
[94]PCB 306-311
122 Dr Farrell said it was likely the opioid medication was playing a role in his change of mentation as, potentially, was his constipation.[95]
[95]T681, L20-31
123 Dr Farrell said that confusion and word-finding difficulties indicated delirium, and that could potentially impact patient M’s capacity to mobilise. She agreed there had been a significant change in his cognitive abilities, at least around 13 August 2013. She agreed that the note of 13 August 2013, which said “feels he has lost confidence walking and feels that his left hip will give way on him” was a significant finding and required a reassessment of his falls risk. She agreed with Dr Fonda[96] that there ought to have been a re-assessment to determine whether the manner in which he was being handled should be changed or modified.
[96]T222-223
124 Dr Farrell agreed that if there was a significant deterioration in patient M’s capacity to walk, whether an actual incapacity, or the patient’s perception of it, that would lead to an increased falls risk.[97] Without an actual assessment, she said she could not assess that falls risk.
[97]T692, L22-28
125 Dr Farrell said that it would take about twenty hours to wash the extra dose of OxyContin out of the patient’s system, but symptoms of confusion could persist, even after that washout period.[98] She agreed the fact that the medication had stopped did not mean that the delirium was not ongoing.[99]
[98]T694
[99]T694
126 Dr Farrell agreed that the reference to patient M’s loss of confidence in walking and feeling that his left hip would give way ought to have been part of the handover. She said it was the responsibility of the nursing staff to read the PPN to obtain an update of the situation. She said there was no indication from the experts, the physiotherapists, that the patient required two people to assist when being transferred.
Submissions on behalf of the Defendant
127 Mr Moulds said the case in negligence against the defendant was based upon the proposition that it ought to have arranged and conducted a risk assessment at around 12 or 13 August 2013, which would have led to a change in the aids, supervision or assistance to the patient and thus avoided the fall.
128 Mr Moulds submitted Barwon Health had undertaken an array of appropriate falls risk assessments, from the time of the patient’s admission, and on a number of occasions thereafter. He said the assessment that the patient was “completely dependent” in respect of movement from chair to chair, or bed to chair, meant simply that he needed assistance and was not able to stand unsupported. This was identified in the nursing notes and confirmed by the evidence of the physiotherapist, Ms Chapman, and the admitting nurse, Ms Humphries.
129 Of most significance, said Mr Moulds, was the evidence of Ms Chapman. She was an experienced physiotherapist whose evidence was largely unchallenged. She undertook a physiotherapy FRAT of the patient, and then assessed him on a number of occasions. She was in the best position to make an assessment of the patient’s risk of falling. Her evidence was clear that upon her assessment, particularly taking into account the capacity of the patient to walk significant distances with one supervisor and a walker, that there was no need for additional aids nor supervision. Mr Moulds said there was scant evidence that the original assessment by Ms Chapman was inadequate or inappropriate. A clinical assessment was a necessary part of any FRAT.
130 On admission, mobility and transfer issues were assessed. The patient was assessed as “high risk of falling” and that, appropriately, meant that he ought to have one supervising person, and a one-handed walker as appropriate. No further aid was needed. Mr Moulds criticised Ms O’Shea’s evidence as being too general, in particular because she did not have the opportunity to assess the patient in the way the nursing staff, physiotherapists and occupational therapists had.
131 In relation to the “Smart Moves/Smart Lift” document, Mr Moulds said the category of “no history of unexpected falls” was not satisfied, as the documentation would indicate that the falls the patient had experienced at home were not “unexpected”.
132 He said that the criteria for assessment of falls risks were convoluted and difficult to understand. He said the various protocols were no substitute for the clinical assessment undertaken by the various nursing staff, and in particular, Ms Chapman. He said the assessment documents were, in parts, nonsensical and impractical. More reliance should be placed on the clinicians present.
133 Mr Moulds said it had to be borne in mind that at the initial assessment, and then in the days leading up to 13 August 2013, the patient was progressing, with the hope that he would return home. What was the point, Mr Moulds asked rhetorically, for the provision of aids or supervision which were not likely to assist the patient in this rehabilitation to home plan, and which would be difficult for the patient and his wife to utilise?
134 There was nothing in the clinical notes to indicate there was any problem with mobilising the patient up until 13 August 2013. There was no reference to the nurses recording that the patient had any difficulty with walking, balance or unsteadiness. The opposite was the case, the patient being able to walk up to 70 metres with the walker and one supervising nurse.
135 On 13 August 2013, the opioid medication was increased to 20 milligrams twice per day; however, this dosage returned to 15 milligrams before the fall on 14 August 2013. Both the physiotherapist and the occupational therapist took the view, upon clinical assessment and observation that the patient’s mobility and function plan was to continue. At this point, there was a clinical reassessment by Ms Chapman of the patient’s mobility needs.
136 Mr Moulds said the circumstances of the fall were relevant. There was no evidence as to precisely how the fall occurred. The plaintiff herself said she did not know what had caused the fall. It may have been the unhooking of the wheel manoeuvre that contributed. Thus, without knowing the reason for the fall, an allegation of breach of duty for failed supervision or lack of an additional walking aid, could not be made out. He said there was no inference to be drawn that the fall occurred because of any weakness, confusion or loss of balance on the part of the patient.
137 It was not put to Ms Chapman, said Mr Moulds, that had she undertaken a risk assessment for falls at or around 13 August 2013, that would have led to any change in the patient’s capacity to safely mobilise. It was not put to Ms Chapman that had an assessment been done, it would have led to the provision of further aids such as shown in exhibits C and D. The nursing notes, over three shifts on and after 13 August 2013, did not show any difficulty with mobility, despite the fall.
138 Mr Moulds said that the defendant’s system for assessment was comprehensive and appropriate. He said that hindsight should not be used to determine the steps that should or should not have been taken. It was a matter for assessment at the time, which was in the hands of experienced clinicians.
139 In relation to the alleged breach of the Manual Handling Regulations, Mr Moulds said that manual handling assessments were done by the various medical staff. He said it was not “reasonably practicable” in the circumstances for the hospital to eliminate or reduce the risk of manual handling. It should be noted that 95 per cent of patients admitted to the centre were assessed as being of high falls risk. The phrase “reasonably practicable” meant consideration had to be given to the hospital’s plan to improve the condition of the patient so he could return home, and further to the fact that there were regular assessments carried out by the medical staff when they observed the patient. This had to be borne in mind throughout his stay, up until 14 August 2013. The welfare of the patient and that prospect for improvement had to be balanced against the risk of injury.
140 Further, he said it was not “reasonably practicable” to assess every minor change in status, or activity to be performed involving the patient. FRATs were performed every week with the input of physiotherapy and occupational therapy staff. There were regular meetings with the doctors. There was no requirement under the Regulations for a particular form of assessment to be undertaken or documented. The Regulations did not prescribe any specific methodology for such an assessment.
Analysis – breach of the duty of care
141 Generally, I accept the fall occurred in the circumstances as described by the plaintiff. She was assisting a patient to return from toileting when the wheel of his walker became caught in the wheel of the bed. As she bent down to release the walker, he fell on top of her. I further accept the plaintiff’s evidence that she was unable to say precisely how or why he fell, given her concentration was directed to the bottom of the bed.
142 Mr Moulds submits that the circumstances of the fall are relevant. If, for example the fall was related to some mechanical issue with the walker, or even an interaction with the wheels of the bed, the injury suffered by the plaintiff would not be causatively related to the negligence of the defendant as pleaded in the Statement of Claim. I accept this submission.
143 However, the circumstances of the fall and the reason it occurred can be gleaned from the PPN in the following hours and days. On 14 August 2013 at 9.52am, it was recorded that the patient had suffered increased weakness and was unable to walk.[100] The same day, at 11.51am, there was recorded that the patient was not feeling good and that his legs gave way, causing him to fall.[101] Again, on 14 August 2013 at 3.16pm, there was recorded the patient had trouble ambulating, with his legs giving way whilst walking. At that time, a stand hoist was used.[102]
[100]PCB 309
[101]PCB 310
[102]PCB 311
144 These entries make it clear that the cause of the patient’s fall, when being assisted by the plaintiff, was due to his legs giving way, because of increased weakness.
145 In part, the expert evidence was concerned with the adequacy or otherwise of the falls risk assessments undertaken by nurses and other healthcare professionals at the Centre around the time the patient was admitted, and in the days following. Ms O’Shea, the nurse retained by the plaintiff, with expertise in occupational health and safety issues, reviewed the:
· Palliative Care Unit Admission Assessment.[103]
[103]PCB 196-199
· Various FRATs, in particular that which was undertaken on admission on 26 July 2013.[104]
[104]PCB 202-216
· References in the SANCP notes relating to the mobility, transfer and lifting of the patient over the course of his admission.[105]
· Entries by the nurses, and other health professionals in the PPN which relate to the patient’s progress, his falls history, his mental state, medication and the general assessment of his condition.[106]
[105]PCB 218-224
[106]PCB 226-331
146 This information was then considered in the light of a plethora of policies and protocols of the defendant relating to falls risks, hazard identification, and lifting policies. These included the defendant’s:
· Falls Risk Identification, Minimisation and Post Fall Management for Acute & Sub Acute Sites protocol.[107]
[107]PCB 382-386
· Hazard Identification Assessment and Control procedure.[108]
[108]PCB 393-399
· Mobility, Dexterity and Rehabilitation protocol.[109]
[109]PCB 404-407
· Hazardous Manual Handling Risk Assessment & Control protocol.[110]
[110]PCB 410-414
· Smart Moves/Smart Lift protocol adopted by the defendant as part of nurse training,[111] in particular “Transfer Risk Assessment”.[112]
[111]PCB 420-459
[112]PCB 434-438
· Falls Prevention Policy.[113]
· Physiotherapy Falls Risk Assessment and Management.[114]
[113]PCB 460-462
[114]PCB 463-468
147 It is no easy matter to sort through all of these notes and assessments, and determine whether, in particular, the FRATs undertaken complied with the various protocols and procedures. Sometimes, the wording of these procedures was somewhat obscure and the directions hard to understand. For example the Smart Moves/Smart Lift policy suggests a patient who did not have “no history of unexpected falls” would be assessed as “not able to assist” and would require transfers utilising certain equipment,[115] yet in the same document,[116] the definition of “unable to assist” referred to a patient being unable to fulfil certain criteria, including “no relevant history of falls”. There was some debate in the course of the proceeding as to what “unexpected falls” meant, and whether it was different from “falls”.
[115]PCB 435
[116]PCB 438
148 For the purpose of my analysis, I do not find it necessary to scrutinise the patient’s admission and initial assessments. The focus, in my view, should be directed to the patient’s condition, in particular problems with mobility, balance or mentation, in the days leading up to the fall.
149 Before doing so, it is clear from the evidence of most of the expert witnesses called, be they nurses or consultant doctors, that in the days leading to the fall, there was a significant change in the patient’s medical condition. This was the opinion of Professor Fonda, Dr Eastman and the physiotherapist, Ms Chapman. That evidence was based upon the PPNs, in particular the following entries:
· The development of pain in his otherwise good left arm – 11 August 2013.[117]
[117]PCB 295
· Left and right shoulder pain – 12 August 2013.[118]
[118]PCB 298
· Very drowsy, falling asleep during conversation, difficulty with concentration due to higher dose of pain medication, feeling fatigued – 12 August 2013.[119]
[119]PCB 301
· Feeling confused with word finding difficulties, difficulty with focus – “feels he has lost confidence walking and feels that his L[eft] hip will give way on him” – 13 August 2013.[120]
[120]PCB 304
· Word finding difficulties, problems with information processing and confusion – medical team advised – 13 August 2013.[121]
· Family said problems with thought processing and querying medications – 13 August 2013.[122]
[121]PCB 305
[122]PCB 306
150 Dr Eastman’s evidence on this issue was clear. He said there was a disturbance of the patient’s thought processes, probably because of the opioid medication he was receiving. This, he said, would indicate a significant change in the patient’s medical condition and a consequent increase in falls risk.
151 Professor Fonda was of the view that, in particular around 12 August 2013, with reference to the patient being tired, sleepy and confused, there was a significant change to his medical condition. He also agreed that this was as a result of the narcotic medication.
152 Dr Farrell, the palliative care physician, analysed the patient’s medication. She thought that in early August 2013, the references to the patient not feeling good and being sleepy, indicated an evolving delirium, caused by either the opioid medication or constipation. By 13 August 2013, she accepted that there was a clinical change in the patient’s condition, affecting his mobility, which she said was impaired.
153 On the basis of this evidence, I am satisfied that the various references in the PPN to the patient’s change in mentation, with drowsiness, sleepiness, difficulty with concentration and, in particular, the loss of confidence on 13 August 2013, were related to the doses OxyContin, and Endone.
154 There was evidence that given OxyContin was reduced from 20 to 15 milligrams twice per day on 13 August 2013, then, by the morning of the next day, when the patient fell, his medication level would have been reduced; however, I prefer the evidence of Dr Eastman and Dr Farrell, that it may take some time for the effects of the increased dose to wash out of the patient’s system, perhaps a day or more.
155 Most witnesses, including Professor Fonda, Dr Eastman and Dr Farrell, were of the view that this change in the patient’s medical condition warranted a new assessment of his fall’s risk.
156 When considering the patient’s falls risk, there should be added:
· The evidence of the plaintiff was that when she went to care for the patient at the commencement of the shift on 14 August 2013, he was complaining of feeling “down and not quite himself”.[123]
[123]T103, L16
· In addition to the restriction in the use of the patient’s right arm and shoulder, there was some pain in the left arm and shoulder which would have affected his ability to securely use the walker.
· As was recorded on 13 August 2013 he felt he had lost confidence in walking and that his left hip would give way.
157 All this evidence, taken together, represents a significant change in the patient’s medical and psychological condition in the days leading up to 14 August 2013.
158 As was said by Ms O’Shea, a number of the defendant’s policy documents, including the Falls Risk Policy, the Falls Risk Identification and Post Fall Management for Acute & Sub Acute Sites clinical guideline and the Mobility, Dexterity and Rehabilitation guidelines for residential aged care documents all stipulated that there should be a new risk screen/assessment following a change in the patient’s condition. The last FRAT prior to the fall was conducted on 9 August 2013, prior to at least the more significant changes in the patient’s mobility and mentation.
159 I am not satisfied that, given the change in the patient’s medical condition, any new comprehensive or appropriate falls risk assessment was undertaken, in particular, one directed to the risk of the patient falling when moving from his bed.
160 Mr Moulds submitted that the patient was being regularly assessed by a range of health practitioners, including nurses, a physiotherapist and an occupational therapist on a constant basis. This was done by them watching and walking with patient M in his daily routines. He submitted in the days leading up to 14 August 2013, there was nothing recorded in the PPN to suggest the patient had walking or mobilisation difficulties. I accept Mr Moulds’ submission, that had there been such difficulties, it would likely have been recorded in those notes.
161 However, as Ms O’Shea pointed out in evidence, the fact that no fall occurred did not mean there was no increased risk of falling. In my view, it was relatively clear, with the change in the patient’s medical condition and mentation, there was a significantly increased risk of falling, even accepting on a number of days prior to 14 August 2013, the patient was able to ambulate, using the walker to and from his bathroom, and even take longer walks. This fact did not obviate the need to carefully consider, with that increased risk, the need for a safer and more secure means of moving the patient about.
162 As Mr Richards submitted, no one turned their minds particularly to the risks of the transfer of the patient, using his walker, with one supervising staff member, given the change in his condition. In my view, when a large and elderly patient complained on the day before he fell, that he had lost confidence in walking and felt his left hip would give way, this clearly signalled that there needed to be a more secure means of mobilisation.
163 The situation was compounded because that information, in the PPN of 13 August 2013,[124] was not conveyed to the plaintiff. I accept her evidence that she was not aware generally of his changed condition, and of that comment in particular. She said that had she been made aware, she would have sought additional assistance.[125]
[124]PCB 304
[125]T113, L25
164 Dr Farrell, in the course of cross-examination, said it was the obligation of a duty nurse to read the PCN at or prior to their shift so that he or she would be kept abreast of any change to a patient’s condition. However, I accept the evidence of the plaintiff that at the start of her shift on 14 August 2013, she was very busy. There was a changeover and briefing from the nurses on the previous shift, where the condition of the various patients on the ward was reviewed.[126] That review did not include reference to the patient’s concerns about his hip and confidence in walking. The plaintiff said that she did not get a chance to review the PPN of the previous few days.[127] She said:
Q: “Will you explain to us why?---
A:Um, so you come on, at the morning you have handover, and then you rush out of handover because all of the buzzers are going. Um, and everyone's needing to get up to go to the toilet, um, pills are needed to be given, people are needing to go to the shower, get in the shower, people are wanting breakfast, people wanting cups of tea. Um, it's just a frantic time of the morning. People wanting their beds made, they're wanting to get dressed. Families are coming in, um, and there's a lot of patients that require two people to, um, you know, get in the showers, lifters, so sometimes you just don't – yeah. It's a busy, busy time of morning.”[128]
[126]T105
[127]T106
[128]T116, L5-17
165 I accept the plaintiff’s explanation that the system was such, with the pressure of duties at the start of the shift, that she did not have the opportunity to read the PPN notes. In my view, that was a breakdown of the system. There ought to have been some process whereby any significant change in a patient’s medical condition or mentation was made clearly known to the nurses at the start of each shift.
166 Mr Moulds’ next point was that even had a further falls risk assessment been undertaken, it would have made no difference to the manner in which the patient was ambulated. That is, given there were no perceived ambulation risks by Ms Chapman, the falls risk would have remained the same and the patient would have continued to be moved using the walker with the supervising nurse. In cross-examination, Ms Chapman denied that the change in his medical condition changed the falls risk from high to extreme.[129] Ms Chapman accepted that the use of a “stedy” would have made any transit safer, but would affect the patient’s functional capacity.[130] Ms Chapman further accepted that if there were problems with the patient’s good arm that would be an added issue in terms of balance, transfers and falls risk.[131]
[129]T646, L8
[130]T646, L26
[131]T648, L9
167 In my view, had a risk assessment been undertaken around 13 August 2013, and bearing in mind the change to the patient’s medical condition and mentation, such an assessment, if appropriately undertaken, would have revealed the need for a more secure means of mobilising and transferring the patient. As earlier stated, it is difficult to understand, given the patient himself said he might fall, why one of the more secure aids, such as those displayed in exhibits C or D were not utilised.
168 As to the Care Plan which was directed at returning the patient home, and with aids he and his wife would be able to manage, that plan could continue once the patient’s physical condition and mentation had improved. Thus, a more secure mobilisation would be used, and when the clinicians were satisfied the delirium had resolved, the problems with mentation caused by the medication had settled and patient M’s leg and hip weakness had improved, he could be returned to the walker and the supervision of one nurse.
169 In summary, the defendant breached its duty of care to the plaintiff in the following ways:
·There was a breakdown in the system of communication, such that the plaintiff, when she commenced her shift on 14 August 2013, was not aware of the patient’s recent, significantly changed medical condition.
·A specific falls risk assessment or review ought to have been undertaken around 13 August 2013.
·Such an assessment, if appropriately undertaken, would have revealed the need for a more secure means of transfer and mobilisation.
·It was not an adequate response to say that given the patient was not observed to fall, or having difficulties mobilising, that that meant he was not at increased falls risk.
·The most appropriate, safe alternative was to use one of the devices which reduced or eliminated the risk of falling, such as those shown in exhibits C and D.
Breach of the Regulations
170 Regulation 3.1.1 provides that an employer must, so far as is reasonably practicable, identify any task undertaken involving hazardous manual handling. There is no issue that the task of escorting the patient performed by the plaintiff involved hazardous manual handling. The phrase “so far as is reasonably practicable” means that something is reasonably feasible or reasonably capable of being done.
171 It is not reasonably practicable for every task which may be undertaken by a nurse in the position of the plaintiff to be the subject of a risk assessment. That would not be reasonably practicable; however, the transfer of a patient from bed to toilet and return, or of mobilising a patient generally, is a task which, in my assessment, is a task which ought to be identified as being one of hazardous manual handling.
172 Regulation 3.1.2 then requires an employer to ensure that such a task is eliminated or reduced, so far as is reasonably practicable. There is no issue the injury suffered by the plaintiff was in the nature of a musculoskeletal disorder.
173 Mr Moulds’ submissions focused on the phrase “so far as is reasonably practicable” in Regulation 3.1.2. He emphasised that the patient was admitted to the Centre for the purpose of restorative care. His Care Plan was to improve his function to the point where he would return home. That was, in fact, the intention of the medical staff up until about 13 or 14 August 2013. Mr Moulds said the welfare and advancement of patients needed to be balanced against the risk of any injury from a manual-handling task. He emphasised the fact that the patient was being regularly assessed on a daily basis by nursing and other medical staff, and given those assessments and the intended Care Plan, it was not reasonably practicable for the risk to be eliminated or reduced.
174 In considering whether something was “reasonably practicable” at a particular time, the following factors are relevant:
·The likelihood of the hazard or risk concerned eventuating.
·The degree of harm that would result if the hazard or risk eventuated.
·What the person concerned knows, or ought reasonably to know, about the hazard or risk, and the ways of eliminating or reducing that hazard or risk.
·The availability and suitability of ways to eliminate or reduce the hazard or risk.
·The cost of eliminating or reducing the hazard or risk.
175 Dealing first with the availability and cost of steps to reduce or eliminate the risk, it is clear from the evidence that the equipment referred to in exhibits C and D was available within the hospital and could have been brought to be used by the patient with little difficulty or expense.
176 I further bear in mind the evidence of the plaintiff that she did not know of the patient’s loss of confidence and the risk of his hip giving way from the PPN of 13 August 2013. Thus, any assessment under the Regulations ought consider that the system of work was such that it was possible a nurse assisting in the transfer would not have all the up-to-date medical information.
177 The degree of harm of the risk eventuating was significant, in these circumstances, either to the patient or to the supervising nurse. It was reasonably foreseeable, in my view, that a patient who was a falls risk could collapse onto a supervising nurse, as happened in this instance. Given the size of the patient, the risk of the plaintiff suffering a significant injury was clear. As to the likelihood of the risk occurring, again, bearing in mind the significant change in the patient’s medical condition and mentation, there was a clear and increased risk that he might fall and cause injury to himself or a nurse.
178 Regulation 3.1.3 requires an employer to review any measures taken to control risks if, relevantly, new or additional information about hazardous manual handling becomes available. In my view, there was clear and important new information, being the change in the patient’s condition.
179 Further, I am not satisfied that it was not reasonably practicable to reduce or eliminate the risk in the circumstances that prevailed. The fact that the patient was supervised by Ms Chapman, the physiotherapist, and others who observed his movements, including on 13 August 2013, was not sufficient to constitute a risk assessment in accordance with the Regulations. While no particular nor prescribed form needed to be completed, there was no evidence to suggest an assessment was undertaken. In fact, the defendant had an appropriate form with a flow chart.[132] That form set out the assessments which ought to have been undertaken. There was no evidence that such a form was utilised for the task at hand or completed. In fact, there was no evidence on behalf of any of the witnesses of the defendant that a manual-handling risk assessment in accordance with the Regulations was undertaken, and there was similarly no evidence of steps taken to eliminate or reduce that risk.
[132]Exhibit L
180 To simply observe a patient in the course of ordinary daily activities within the Centre, was not sufficient. A specific assessment of the risk of the patient falling and causing injury to himself or a nurse, and taking into account the patient’s recently changed condition, was required. That was not done.
181 In these circumstances, the defendant was in breach of the relevant Regulations.
Conclusion
182 I am satisfied, for the reasons given, the defendant was in breach of its duty to take reasonable care for the safety of the plaintiff. Further, the defendant was in breach of the Regulations. Each breach was causatively related to the plaintiff’s foreseeable risk of injury.
183 In those circumstances, the plaintiff’s claim succeeds.
184 I am not required to assess damages, which have been agreed between the parties.
185 I shall make appropriate orders after the handing down of these reasons.
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