Wells v Juengling - [2008] WADC 18

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: WELLS -v- JUENGLING [2008] WADC 18

CORAM: MAZZA DCJ

HEARD: 23-25 MAY & 10-12 OCTOBER 2007

DELIVERED : 8 FEBRUARY 2008

FILE NO/S: CIV 335 of 2006

BETWEEN: SONIA MAREE WELLS
Plaintiff
AND
DR NORMAN JUENGLING
Defendant

Catchwords:

Torts - Medical negligence - Plaintiff alleges negligence by specialist anaesthetist in intubating her prior to surgery - Whether defendant was negligent - Turns on own facts

Legislation:

Nil

Result:

Plaintiff's claim upheld

Representation:

Counsel:

Plaintiff: Mr G Droppert
Defendant: Mr D R Clyne

Solicitors:

Plaintiff: Hoffmans
Defendant: Dibbs Abbott Stillman

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

Amaca Pty Ltd v Hannell (2007) 34 WAR 109
Bennett v Minister of Community Welfare (1992) 176 CLR 408
F v R (1983) 33 SASR 189
Fitzpatrick v Robert Norman Job & Wendy Barbara Job t/a Jobs Engineering and Ors [2007] WASCA 63
Roads & Traffic Authority of New South Wales v Dederer [2007] HCA 42
Rogers v Whitaker (1998) 175 CLR 479
Rosenberg v Percival (2001) 205 CLR 434
Strempel v Wood [2005] WASCA 163
Wyong Shire Council v Shirt (1980) 146 CLR 40

MAZZA DCJ:

Introduction

In the afternoon of 21 January 2004, the plaintiff was admitted to Rockingham‑Kwinana Hospital with what was thought to be a small bowel obstruction. A decision was made by a surgeon, Dr Couch, to perform an urgent laparotomy to prevent the possibility of the bowel perforating. In the opinion of Dr Couch, the surgery had to be performed that evening rather than the next day. Dr Couch called in the defendant, a specialist anaesthetist, to administer a general anaesthetic to the plaintiff.
The administration of the anaesthetic required the defendant to insert a tube into the plaintiff's trachea, a process known as intubation. Instead of intubating the trachea, the defendant intubated the oesophagus and the plaintiff regurgitated her acidic stomach contents which flowed into her right lung causing it to collapse and for the lung to be damaged.
The plaintiff alleges that the injuries that she suffered were caused by the negligence of the defendant. The defendant denies that he was negligent.
The trial before me was only with respect to the issue of the defendant's liability. The issue of the quantum of damages in the event that I decide that the defendant is liable to the plaintiff, has been agreed.

Facts which are not in dispute

The following facts are not in dispute. On the morning of 20 January 2004 the plaintiff, who was at the time 27 years of age and undergoing IVF treatment began to feel sick. She experienced stomach pains, vomiting and diarrhoea. She went to see her general practitioner, Dr Partington, and was sent to the Rockingham‑Kwinana Hospital by ambulance arriving there at 1.24 pm.
At 1.42 pm she was seen by an emergency doctor, Dr Christophers, who, after examining her, made the preliminary diagnosis of a bowel obstruction. As a result Dr Christophers called in Dr Couch, because he saw the potential for a laparotomy. From the time of her admission into hospital the plaintiff ate nothing but she was given fluids, orally and intravenously, and she was given anti-nausea medication, Panadol and morphine.
At approximately 6.50 pm Dr Couch examined the plaintiff in the emergency department. He observed what was described as an acute abdomen, that is, a distended and generally tender abdomen and he diagnosed a possible closed loop small bowel obstruction. Such an obstruction can behave like a hose that has been twisted and blocked in that pressure builds up at the point of the blockage and the bowel can rupture with potentially very serious consequences to the plaintiff. Dr Couch decided that the plaintiff required a laparotomy. This surgery was not a dire emergency but needed to be performed before the following morning.
Whether Dr Couch performed the operation at Rockingham‑Kwinana Hospital or the plaintiff was sent to Fremantle Hospital for the surgery depended upon the availability of the defendant who was the on‑call anaesthetist for the Rockingham‑Kwinana Hospital that evening. Dr Couch telephoned the defendant who agreed to come to the hospital and anaesthetise the plaintiff. Consequently, Dr Couch decided that he would perform the surgery there.
At about 7.30 pm the defendant arrived at the hospital and started his pre‑anaesthetic consultation at approximately 7.35 pm. His consultation notes are in Exhibit 2 at p 137. The plaintiff was not well at this time. She was lying down and was drowsy. She was, however, conscious and able to answer questions put to her by the defendant.
The defendant decided to anaesthetise her by a technique called rapid sequence induction. I will explain what is involved in this technique shortly. The defendant's choice to anaesthetise the patient in this way is not criticised.
Ms Lyn Sleight, an experienced anaesthetic technician who had worked with the defendant before, prepared a trolley containing various anaesthetic instruments and checked the anaesthetic machine. She was present when the plaintiff was taken into the operating theatre and placed on to the operating table. This occurred at 7.50 pm. The process of anaesthetising the plaintiff then began. The defendant administered drugs to induce sleep and paralysis. He then attempted to place a tube into the plaintiff's trachea. This tube, once in place, is connected to the anaesthetic machine and it is via this tube that the patient is ventilated and receives anaesthetic gas during the operation. As it turned out, the plaintiff was difficult to intubate. The defendant, instead of inserting the tube into the trachea inserted the tube into the plaintiff's oesophagus below the level of the cricoid cartilage. The defendant hand pumped an amount of air into the tube which went into the stomach at which point the stomach contents were regurgitated up the oesophagus and then aspirated into the plaintiff's right lung via the trachea. As a result the lung collapsed, although this was not known until an x-ray was taken shortly after the operation was completed.
The regurgitation and aspiration of the stomach contents posed, as the defendant recognised, a life-threatening risk to the plaintiff because the plaintiff was not able to spontaneously breathe due to the anaesthetic and was not being ventilated. The defendant took swift and effective remedial action with the assistance of Ms Sleight and Dr Couch. The plaintiff was placed on to her right side and suction was applied to her mouth to remove any fluid there. The defendant again intubated her, this time successfully. A decision was then made to continue with the operation. No criticism is made of this decision. The first incision was made at about 8.19 pm and the operation concluded at approximately 9 pm. The x-ray that I have already referred to, was performed and at that point it became clear that the effects of the aspiration were very serious and that the plaintiff had to be transferred to the nearest intensive care unit at Fremantle Hospital. The plaintiff was transferred by ambulance to ICU at Fremantle Hospital in the company of the defendant and Ms Sleight. The plaintiff was admitted to ICU at 12.45 am on 22 January 2004 where she stayed for some weeks.
Shortly, I will set out the particulars of negligence alleged by the plaintiff against the defendant however, in order to understand the allegations of negligence it is necessary to describe in some detail the internal anatomy of the back of the mouth, the trachea and the oesophagus, and to explain rapid sequence induction and the process of intubation.

The anatomy of the back of the mouth, the trachea and the oesophagus

At the back of the mouth and nose is the pharynx. The pharynx is connected to the nasal cavities and the mouth. Food passes from the mouth and through the oesophagus to the stomach. Air passes through the trachea which is the tube that leads to the lungs. Above the trachea is the larynx. Stretching across the larynx are the vocal cords. At the back of the tongue is the epiglottis. This is a flap of cartilage which when a person swallows food prevents food from going into the trachea and directs it to the oesophagus. The trachea is positioned anteriorly to, and virtually on top of the oesophagus.

Rapid sequence induction

Rapid sequence induction is used to anaesthetise patients undergoing urgent or emergency surgery when the patient has not been fasted or has, as in this case, an acute abdomen. The purpose behind a rapid sequence induction is to quickly anaesthetise a patient in a way which prevents the patient's airway being compromised by regurgitation and aspiration of stomach contents. The steps involved in a rapid sequence induction are as follows:
1.The patient is pre-oxygenated. A patient must be pre‑oxygenated because there is a period of time between the paralysing anaesthetic agent taking hold which stops the breathing reflex, and the commencement of artificial ventilation. The idea is that the patient is given, via a mask, oxygen‑rich air for a period of three to five minutes to build up the body's oxygen stores. Proper pre-oxygenation can enable a patient to remain sufficiently oxygenated without breathing or ventilation for a period of minutes. If a patient's oxygen levels drop to a point where the body has insufficient oxygen (a condition known as hypoxia), cardiac arrest can occur.
2.The anaesthetist must establish a reliable intravenous access to administer the anaesthetic drugs. In this case, that access was through a cannular in a vein in the plaintiff's arm.
3.The anaesthetic drugs are administered intravenously.
4.As the patient becomes drowsy cricoid pressure is applied.
Once a person is anaesthetised the person's normal defences against regurgitation of stomach contents are ineffective. Accordingly, where a person is lying down there is a real risk of stomach contents flowing via the oesophagus and into the pharynx and then into the trachea to the lungs. Aspiration of the stomach contents into the airway is to be avoided. This is because the contents of the stomach are acidic and if they get into the lung, can cause damage to the lung and even death. If the stomach contents get into the trachea and lung, effective therapy is limited. A universally used and, mostly, effective method to guard against regurgitation whilst a patient is in the process of being anaesthetised is the application of cricoid pressure. This technique requires the anaesthetist but usually, as in this case, an anaesthetic technician to apply pressure on the cricoid cartilage in such a way as to cause that cartilage to block the oesophagus.
5.Once cricoid pressure has been applied the anaesthetist then inserts a tube called an endotracheal tube (ETT) into the mouth to the pharynx and then past the larynx into the trachea. When the anaesthetist is confident that the ETT is in the right position a cuff near the end of the tube is inflated with the effect of sealing the airway from above and below. The ETT is then connected to the anaesthetic machine and air and anaesthetic gas is passed into the lungs of the patient. Cricoid pressure is then released. Although there are a number of ways to confirm that the ETT is in the correct place, the best method, according to the experts called in this case, is by observing a reading on an instrument called a capnograph for carbon dioxide being exhaled from the lungs.

Intubation

It takes some skill to insert a tube into the trachea. Intubation of a patient may or may not be difficult and a difficult intubation may be unexpected. Whether or not intubation is difficult will, to a large extent, depend upon the anatomy of an individual's airway. The structure of the mouth, tongue and pharynx vary from person to person and it may be difficult for an anaesthetist to see where he or she is inserting an ETT. Accordingly, it is necessary for an anaesthetist to assess a patient's airway for any potential problems before intubating the patient. This assessment is done at the pre‑anaesthetic consultation. At that consultation, amongst other things, the anaesthetist will observe the patient's mouth, chin and neck structures and make notes of any dental issues which may arise, for example, buck teeth, and will examine the airway of the patient sitting up by reference to the Mallampati Scale. The Mallampati Scale divides a person's airway into four classes: from class 1 where an anaesthetist can see down to the tracheal opening, to class 4 where there is no vision of the tracheal opening. For a Mallampati assessment to be of use the patient must be sitting up with his or her mouth wide open and tongue out. Although the Mallampati Scale is a useful guide in assessing a patient's airway, it is not definitive. Sometimes a person with a Mallampati class 1 airway turns out to be difficult to intubate whilst a person with a class 3 or 4 Mallampati airway may be easier to intubate than the scale may have suggested.
In this case, the defendant was unable to perform the Mallampati test because the plaintiff was unable to sit up. However, the defendant said that he was able to get her to open her mouth. He testified that he thought that she was a Mallampati Scale 2 or 3.
Intubation is effected once the patient is unconscious. With the assistance of an instrument called a laryngoscope, a tool which pushes away the tongue and lifts the epiglottis to hopefully reveal the vocal cords, the ETT is threaded past the vocal cords and into the trachea.
Very commonly, in order to facilitate intubation an anaesthetist will use an introducer. In this case two types of introducer were referred to, namely a stylet and a bougie. A stylet is a long bendable rod that is inserted into the ETT prior to laryngoscopy. The ETT with the stylet in it is then bent to resemble the shape of a hockey stick. Once the ETT is inserted into the trachea, the stylet is removed.
A bougie is a narrow gauge semi‑rigid length of plastic. During laryngoscopy, the bougie is carefully advanced into the larynx. While maintaining the laryngoscope and the bougie in position, the ETT is threaded over the bougie into the larynx and trachea. Once the ETT is in place, the bougie is removed.
As it turned out, the intubation of the plaintiff was difficult. The defendant said that after passing the laryngoscope he could not see the vocal cords. In a very real sense he was proceeding blind. This circumstance is one which occurs from time to time and it is not negligent to attempt to intubate a patient in this circumstance. Plainly, given the proximity of the oesophagus, there is a risk that the ETT will be inserted into the oesophagus rather than the trachea. Both parties agree, it was not negligent for an anaesthetist to fail to effect, on the first attempt, a tracheal intubation. Both parties agreed that "this could happen to anyone". However, if it happens it is important to recognise it as soon as possible because serious harm to the patient may result. If the ETT is inserted past cricoid pressure, cricoid pressure is rendered ineffective and the stomach contents may flow from the stomach and eventually into the lungs. This process can be worsened if there is inflation of the stomach because in that instance there is a risk that the gastric contents will in effect be pumped up the oesophagus.

The plaintiff's particulars of negligence

The plaintiff's pleaded case against the defendant is set out in par 9 of her amended statement of claim which is as follows:
"Particulars of defendant's negligence
The defendant was negligent in that he:-
9.1Failed to pass a nasogastric tube to empty the plaintiff's stomach in the process of intubation in the plaintiff who was suffering from an acute abdominal emergency in a very early pregnancy.
9.2Failed to prepare an endotracheal tube with introducer in anticipation of intubation problems.
9.3Pushed the initial endotracheal tube too far, breaching the protective cricoid pressure and causing further inflation of the stomach with anaesthetic gases and subsequent severe inhalation and/or aspiration of gastric contents.
9.3AAttempted an intubation without the application of protective cricoid pressure resulting in the endotracheal tube being pushed off the back of the larynx and straight down the oesophagus and causing a release of gastric contents into the upper airway.
9.3BIn the alternative to 9.3A, attempted an intubation with the application of cricoid pressure which was breached by pushing the endotracheal tube too far down the oesophagus and causing an inflation of the stomach with anaesthetic gases and causing a release of gastric contents into the upper airway.
9.3CFailed to initially use an endotracheal tube with an introducer/bougie in the process of intubation.
9.4Removed cricoid pressure, turning the plaintiff onto her side and attempted a masked ventilation without cricoid pressure with the consequent further aspiration to her now completely unprotected airway while a stilletted tube was prepared.
9.5Failed to adequately document plaintiff's medical history including a record of her anaesthetic history, particularly with reference to difficulties with endotracheal intubation which might have been encountered during IVF laparoscopies or even general anaesthetics in childhood or early childhood, the state of the plaintiff's hydration and poor oral fluid intake.
9.6Failed to complete to plaintiff's Mallampati Scale, to complete the boxes on her anaesthetic chart namely "AIRWAY ABNORMALITY" which was not filled out and "AIRWAY PROBLEM" which only contained a question mark.
9.7Failed to administer Isotonic Saline or Hartmann's Solution before embarking on the plaintiff's anaesthetic in light of the fact that a low potassium was highly suggestive of gastric or high intestinal fluid loss.
9.8Failed to pre-oxygenate the plaintiff or carried out pre‑oxygenation in a cursory manner.
9.9Failed to obtain help from a more experienced anaesthetist.
9.10Failed to communicate the grave degree of the plaintiff's aspiration when referring the plaintiff to Fremantle Intensive Care Unit."
The defendant denies each of these particulars of negligence.

Not all allegations of negligence pursued by the plaintiff

The allegations of negligence originate from the various expert reports provided to the plaintiff's solicitors by Dr John Donnelly. I will refer to those reports in due course. At trial it became evident that a number of the allegations of negligence could not be sustained on the evidence. Accordingly, not all of the plaintiff's particulars of negligence were, at the end of the day, pursued by the plaintiff's counsel, Mr Droppert. I am somewhat confused about which allegations are being pursued by the plaintiff.
In Mr Droppert's written submissions dated 12 October 2007, at par 123 he refined the plaintiff's case and submitted that the defendant was negligent in that:
"(a)there was an inadequate pre-anaesthetic assessment;
(b)there was a failure to discharge an appropriate level of duty of care by failing to decompress the stomach;
(c)the first attempt at intubation did not involve a stylet or any other form of introducer and should have;
(d)even if a stylet was used on the first occasion, pushing the endotracheal tube past the point of cricoid pressure meant either or both:
(i)the defendant did not take appropriate care in passing the tube in that he failed to recognise that he had (pushed) past the point of cricoid pressure; and/or
(ii)by ordering the backwards and upwards manoeuvre, of itself this then must have released cricoid pressure so that the plaintiff was then no longer protected by that means from regurgitation, a position which was then compounded by the actual passing of the ETT into the oesophagus and the subsequent ventilations."

In Mr Droppert's supplementary submissions on the issue of causation filed 13 December 2007 at par 6 and par 7 Mr Droppert said:
"6.The plaintiff submits that the negligence alleged against the defendant in:
(a)the failure to conduct a proper pre‑anaesthetic assessment;
(b)the failure to decompress the plaintiff's (stomach) by use of a nasogastric tube; and
(c)the passing of the endotracheal tube into the oesophagus:
individually or in combination caused injury to the plaintiff.
7.There is a subsidiary issue of lack of pre‑oxygenation."
The submissions dated 13 December 2007 do not refer to the defendant's alleged failure to use an introducer in the first attempted intubation. Further, I am uncertain as to whether the alleged lack of pre-oxygenation is a matter the plaintiff wishes to pursue as a particular of negligence.
In the end, and out of an abundance of caution, I am going to treat the allegations that the defendant did not use an introducer during the first attempted intubation and that he failed to properly pre-oxygenate the plaintiff as particulars of negligence which the plaintiff wishes me to decide.
Mr Clyne, on behalf of the defendant, submitted that:
(a)the defendant conducted an adequate pre-anaesthetic assessment;
(b)the defendant properly pre-oxygenated the plaintiff;
(c)while the defendant failed to decompress the plaintiff's stomach, the defendant turned his mind to the possible use of a nasogastric tube for this purpose but made a reasonable clinical judgment not to employ this procedure;
(d)the defendant used an introducer in his first attempted intubation of the plaintiff; and
(e)while the defendant pushed the ETT past the point of cricoid pressure during the first attempted intubation, he did not recognise that he had breached that point and that his failure to do so was not negligent. Further, he recognised that he had effected an oesophageal intubation in a timely way and although there was a release of the plaintiff's gastric contents into her upper airway, that was not as a result of any negligence on the part of the defendant. Finally, at no point during the entire process of intubating the patient did Ms Sleight release cricoid pressure until the plaintiff was successfully intubated.
In his written submissions dated 7 December 2007, the defendant disputes, even if the plaintiff makes out any of her allegations of negligence, that any breach of the defendant's duty of care to the plaintiff caused the plaintiff's injuries.

The issues

Having considered the pleadings and the parties' closing submissions the issues I must decide are:
1.Did the defendant conduct an adequate pre-anaesthetic consultation?
2.Did the defendant properly pre-oxygenate the plaintiff?
3.Should the defendant have decompressed the plaintiff's stomach using a nasogastric tube prior to any attempt to anaesthetise her?
4.Did the defendant use a stylet during the first attempted intubation of the plaintiff?
5.Did the defendant push the ETT past cricoid pressure with too much force and fail to recognise that he had done so?
6.Did the defendant take too long, inflate the plaintiff's stomach too long without recognising that he had effected an oesophageal intubation?
7.Was cricoid pressure released at any stage in the process of intubating the plaintiff?
8.If any plea of negligence succeeds, did that act or omission cause the plaintiff's injury?
Issue 1 is raised in subparagraphs 9.5 and 9.6 of the statement of claim. Issue 2 is raised in subparagraph 9.8 of the statement of claim. Issue 3 is raised in subparagraph 9.1 of the statement of claim. Issue 4 is raised in subparagraph 9.3 of the statement of claim. Issues 5, 6 and 7 are raised in subparagraphs 9.3, 9.3A and 9.3B. Issue 8 is raised in the defendant's general denial of negligence.
I now turn to the evidence.

The evidence

The plaintiff

The plaintiff was born on 18 May 1976. In early January 2004 she was on an IVF program and had an embryo implanted. She and her husband were waiting to see if the implantation had been successful.
On the morning of 20 January 2004 the plaintiff began to feel ill with stomach pains, vomiting and diarrhoea. She was not able to eat anything from this time. On 21 January 2004 after consulting her general practitioner she went to hospital. She recalled being examined by Dr Couch but had no recollection of any pre-anaesthetic consultation. She recalled being wheeled into theatre, but her next memories were waking up at Fremantle Hospital.
The plaintiff in cross-examination said she had a few anaesthetics in the past and she did not recall having any problems with them. She recalled being asked questions about previous anaesthetics, allergies, heart and respiratory diseases by a doctor or a nurse: T 37.
I have no doubt that Ms Wells was a truthful witness and I accept her testimony. No‑one suggested I should do otherwise.

Dr John Donnelly

Dr Donnelly is a currently practising, specialist anaesthetist. He obtained his primary medical degree from Sydney University in 1970 and in 1977 became a Fellow of the College of Surgeons and in 1992, when the Australian and New Zealand College of Anaesthetists was formed, he became a member of that College. His curriculum vitae reveals extensive anaesthetic experience. He was frank in describing himself not as an academic anaesthetist but as someone who worked predominantly in clinical practice. He said that he had some background in managing difficult airways, particularly in paediatric cases but also in adults.
Dr Donnelly was requested by the plaintiff's solicitors to provide an expert opinion of the plaintiff's treatment based upon the Rockingham-Kwinana Hospital file and most, but not all, of the Fremantle Hospital file. Dr Donnelly provided an initial report dated 5 October 2005 which appears in Vol 1 at pp 1-15 and then three other supplementary reports, the first of which is undated but appears between pp 21 and 25 of Exhibit 1, and the other two reports, one dated 11 September 2006 at pp 31-40 of Exhibit 1 and 25 October 2006 at pp 47-51 of Exhibit 1.

Dr Donnelly's evidence concerning pre-anaesthetic consultation

In his report dated 5 October 2005, Dr Donnelly said that he had reviewed the anaesthetic notes in the Rockingham‑Kwinana Hospital records. He said:
"There is no record of any detailed anaesthetic history, particularly with reference to difficulties with endotracheal intubation which might have been encountered during IV laparoscopies or even general anaesthetics in childhood or early adulthood. The absence of this information is serious and denotes an incomplete examination or inexperience."
He then went on to say:
"There is no note as to the patient's state of hydration, given that abdominal distension is noted and Ms Wells herself gave a history of poor oral fluid intake, only tolerating ice chips, for some days beforehand. The general practitioner had showing considerable clinical acumen noted this and had commenced her on a normal saline infusion."
Later in the report Dr Donnelly says:
"Even less impressive documentation follows.
The Mallampati Scale is not completed – 'unable to sit up'. Ms Wells is nevertheless noted to have prominent incisors and a small jaw. These latter facts denote the real possibility of potentially major difficulty with intubation and possible dental trauma – even reading these incomplete cursory notes I can deduce that Ms Wells presented at the bedside as a likely grade 3 intubation, at risk and required special care (and skill).
The boxes on the anaesthetic charge annotated, in capitals, AIRWAY ABNORMALITY are not filled out and AIRWAY PROBLEM contains only a question mark."
In evidence Dr Donnelly was presented with the Australian and New Zealand College of Anaesthetists recommendation on pre‑anaesthesia consultation, Exhibit 12. In discussing that document Dr Donnelly was asked by the plaintiff's counsel how important the consultation was. Dr Donnelly replied at T 61:
"I believe it is extremely important and I place a considerable amount of importance on it. Apart from the simple politeness of introducing yourself to a patient who is about to place their life in your hands, you can establish various things like do they have a history of family members who die under anaesthesia: do they have any significant major medical illnesses: do they have any significant other allergies: are they taking drugs which will affect the conduct and affect the anaesthetic agents: what is their general medical condition like: what is their state of hydration: are they conversant with what is going to happen to them: have they signed a consent: do they understand what is involved with a general anaesthetic, and do they have any preferences about anaesthetics and do they have any history of anaesthetic problems in the past."
At T 62 Mr Droppert asked what an airway assessment involved. Dr Donnelly replied:
"The airway assessment … involves listening to the chest, and looking at the patient for signs of potential difficulty of intubation."
With respect to the Mallampati Scale, Dr Donnelly described the grading system but said at T 62:
"If you're short of time you don't even have to actually do a formal Mallampati grading. You can look at the patient from the end of the bed. If they've got a small chin, or they have a short distance between the chin and their hyoid bone, which is the first bone that you come to above the larynx, you know that you're going to have a difficult intubation no matter what grade Mallampati it is. It probably would be – you would be looking at Mallampati grade 3 at least, between 2 and 3."
Dr Donnelly said that there is not a perfect correlation between the Mallampati grade and a patient's anatomy.
At T 68 Dr Donnelly was asked about what assumption should an anaesthetist make if he or she was unable to conduct a Mallampati assessment. He replied:
"I think you can still maintain a required index of suspicion that this lady may be difficult to intubate."
In cross-examination Dr Donnelly was asked about that part of the report that I have already mentioned where Dr Donnelly was critical of the defendant because there was no record of any difficulties with intubation during IVF procedures. Dr Donnelly said at T 107:
"The fact that he (sic – she) may not have had undue difficulty with laparoscopic procedures could be explained by the fact that she was intubated using a laryngeal mask airway which is possible. Many anaesthetists who do laparoscopic work use a laryngeal mask airway so the difficult intubation scenario may not have come up. On the other hand, she may have been anaesthetised by an anaesthetist who appreciated that she had a potentially difficult airway, was fully prepared for it and did a perfectly smooth intubation. We do not know."
Dr Donnelly commented in his undated Substance of Expert Evidence at Vol 1 p 25 that the defendant's use of bag and mask ventilation to prevent hypoxia after the first attempted intubation but before the subsequent intubation implied inadequate pre-oxygenation. In cross-examination, Dr Donnelly explained that the rapidity and extent to which the plaintiff's oxygen saturation levels fell following the commencement of the anaesthetic procedure was inconsistent with adequate pre-oxygenation. Dr Donnelly noted that the plaintiff's oxygen levels fell to 87 per cent during the process of re‑intubating her. As to this, he was in error. In fact the situation was considerably worse than that. According to the defendant himself, the plaintiff's oxygen saturation levels fell to 50 per cent and she was blue in colour and at risk of cardiac arrest. Dr Donnelly's evidence was to the effect that proper pre‑oxygenation should have given the plaintiff at least three minutes of full oxygenation which should have been sufficient time for the defendant to perform the first failed intubation, deal with the regurgitation and then re‑intubate the plaintiff without the need for further ventilation.
In cross-examination, Dr Donnelly maintained that had the plaintiff been properly oxygenated the plaintiff would not have desaturated to the point where further ventilation was required.

Dr Donnelly's evidence about failure to pass a nasogastric tube prior to the first attempt at intubation

Dr Donnelly said in his report of 5 October 2005 that this was the matter that caused him the most concern. In his opinion, the defendant should have passed a nasogastric tube into the plaintiff's stomach prior to surgery in order to decompress the plaintiff's stomach, that is, empty it of fluid and gas. As to this Dr Donnelly said in examination-in-chief at T 52-53:
"If the patient has a stomach full of liquid which can be presumed to be acid, it's a good idea to get it out. The best way of doing that is to pass a large nasogastric tube and apply suction turning the patient from side to side so that each part of the stomach empties independently. The nasogastric tube is then removed."
Dr Donnelly said that in his opinion in circumstances where a patient has an acute abdomen it was "almost obligatory" to pass a nasogastric tube prior to surgery. Dr Donnelly said a patient with an acute abdomen is at a greater risk of regurgitation and aspiration. Accordingly, passing a nasogastric tube and evacuating the stomach of its contents prevents or at least reduces the hazards to the patient in the event of regurgitation and aspiration.
In re-examination at T 157 Dr Donnelly said:
"The nasogastric tube decompresses the stomach so that the real force driving liquids and gas up towards the upper airway is much diminished and it removes potentially harmful substances, predominantly gastric acid …."
Dr Donnelly said that even though there had been episodes of vomiting and retching during 21 January 2004 the plaintiff had been given fluids, ice chips and icy poles as well as drugs that prevent vomiting and morphine which slows down the gastric processes. In these circumstances, he said it was reasonable to assume that the plaintiff had a full stomach. I pause to note that the expression "full stomach" does not in the language of an anaesthetist refer to a literally full stomach but refers to an acute abdomen. Nevertheless, Dr Donnelly thought that it was likely that the plaintiff's stomach had a quantity of fluid and gas in it. Dr Donnelly said that the operation on the plaintiff was not so urgent as to mean that there was no time to pass a nasogastric tube, it could have been readily done by the defendant prior to the first attempted intubation.
Another reason why Dr Donnelly thought that the defendant should have inserted a nasogastric tube was that the plaintiff he thought was pregnant. Dr Donnelly explained that the laxity of sphincters and the general softening of smooth muscle that occurs during pregnancy placed the plaintiff at a higher risk of regurgitation. Dr Donnelly based his opinion that the plaintiff was pregnant upon his recollection of a note from Fremantle Hospital ICU that the plaintiff had passed the products of conception. However, in cross-examination, having been given the opportunity of perusing the Fremantle Hospital ICU notes he was unable to find such a reference. Dr Donnelly said that even if the plaintiff was not pregnant the defendant should have treated her as if she was because of her participation in an IVF program.
Dr Donnelly was cross-examined and re-examined with respect to the opinions of Dr Gibbs, the defendant's expert anaesthetist. Dr Gibbs, as I will outline in greater detail later in these reasons, said that the defendant's failure to insert a nasogastric tube was a clinically justified decision because (a) there is no guarantee that the nasogastric tube will empty the stomach as it can be easily blocked by particulate matter in the stomach or by the stomach itself; (b) the tube may hinder the normal function of the gastro-oesophageal sphincter thereby increasing the likelihood of regurgitation; (c) insertion may cause bleeding, making airway management more difficult; (d) that the insertion of the tube may be difficult and distressing for the patient.
As to these points, Dr Donnelly responded that:
(a)while the nasogastric tube can become occluded by particulate matter, in this case, the plaintiff's stomach was likely to contain fluid rather than particulate matter. In any event, Dr Donnelly said that if the tube became blocked another tube could be passed.
(b)Dr Donnelly agreed that a nasogastric tube may hinder the normal function of the gastro-oesophageal sphincter but that possibility was reduced by removing the ETT prior to intubation.
(c)The insertion of a nasogastric tube may cause bleeding but that can be dealt with effectively by the application of topical nasal drops.
(d)Dr Donnelly recognised that most patients very much dislike having a nasogastric tube passed but nevertheless, its benefits outweigh the discomfort.
Dr Donnelly was taken to a number of textbook references in both cross‑examination and re-examination. In cross-examination Dr Donnelly agreed that in "Miller's Anaesthesia", a major textbook in the area of anaesthesia there is no mention of insertion of a nasogastric tube in relation to a full stomach. Dr Donnelly was not aware of a work referred to by Dr Gibbs by Barash, Cullen and Stoelting called "Clinical Anaesthesia" which asserted that it was not universal practice to insert a nasogastric tube prior to the induction of anaesthesia in patients with a suspected full stomach. In re‑examination Dr Donnelly said that the reference to Barash and others did not present a very coherent case against the use of the nasogastric tube.
It was put to Dr Donnelly that there was no evidence that the plaintiff in fact had a full stomach. At T 95 and 96 the following exchange took place between Mr Clyne and Dr Donnelly:
"Why do you say there is a full stomach in this case? She had been vomiting. She had had diarrhoea?---That was before she came into hospital. She had had two or three small vomits, according to that nursing note, and there is no guarantee that she emptied her stomach every time she vomited.
But she had been vomiting for a couple of days. That's why she went to the GP. If you go to page 131, 'Diarrhoea and vomiting for two days'?---That indicates that the stomach is upset and probably distended and that her vomiting reflex is active because something is irritating her stomach and it is hard for the stomach – the stomach can't drain through the duodenum as it normally would so she vomits probably small amounts of fluids upwards when she's trying to take fluids. This is the point about sucking on ice blocks and icy poles. It's easier than swallowing fluid because it tends to be a lot more soothing because it's cold and the vomiting reflex is less likely to happen. Furthermore, she was given drugs in the – after admission to Rockingham Hospital she was given two different anti-emetics and I would have to say that my reading of the use of anti-emetics – if you use two potent anti-emetics like Dolasetron and Maxolon, you have a very good chance of preventing vomiting. So she may very well have had a full stomach, in addition to which she was given incremental doses of 2.5 milligrams of morphine, I think, four times. This is itself – opiates cause gastric slowing and gastric stasis. She was at risk from having a full stomach, probably liquid on the basis of what she had consumed over the previous – in the preceding 36 hours and this could be readily treated by the passage of a nasogastric tube. I think Professor Gibbs raises the issue, 'It will block if there's solid material in it. Well, you take it out, solid material, tube and all and put another back down and then you keep going'. The earlier this is done, the better."

Dr Donnelly's evidence about the failure by the defendant to prepare an ETT with an introducer

In Dr Donnelly's report dated 5 October 2005 and in his undated report there are several references to the defendant attempting the first intubation using an ETT without an introducer. The evidential basis for these statements was not clearly apparent from the two reports. However, in his evidence Dr Donnelly said that there was no reference to the use of an introducer in the anaesthetic record of the operation at Vol 2, pp 138‑140 and so, he thought, no introducer was used in that procedure.
I will, later in this summary of the evidence, refer to the anaesthetic records made by the defendant on 21 January 2004. There is no reference to the use of an introducer in the initial intubation, however the form produced by the Rockingham‑Kwinana District Hospital does not specifically provide a place for one to be mentioned.

Dr Donnelly's evidence about pushing initial ETT too far and breaching cricoid pressure

Although Dr Donnelly agreed that an initial failure to intubate was not of itself negligent, he was very critical of the defendant for effecting an oesophageal intubation below cricoid pressure. Along with the failure to pass a nasogastric tube, this was the most serious concern expressed by Dr Donnelly.
Dr Donnelly said that there was no reason why an ETT should be pushed as far as cricoid pressure and that to breach cricoid pressure would require "a fair amount of force" (T 81) and should have been felt by the defendant. In other words, the defendant, according to Dr Donnelly, should have realised that he had mistakenly effected an oesophageal intubation by feeling the tube breach cricoid pressure. Dr Donnelly did not think it was feasible that the ETT would slip past properly applied cricoid pressure without the defendant knowing it. In Dr Donnelly's opinion, the defendant should have felt the tube reach cricoid pressure and that he should not have forced the tube past that point. In Dr Donnelly's view the defendant forced the tube to breach cricoid pressure, conduct which was in his opinion, negligent. Once cricoid pressure was breached the protective effects of cricoid pressure were nullified and gastric contents were able to flow into the plaintiff's unprotected airway, a situation made worse by the defendant's inflation of the stomach with anaesthetic gases via the ETT.
Dr Donnelly felt very strongly about the amount of force that he thought that the defendant had used in order to breach cricoid pressure. In his report dated 5 October 2005 at Vol 1 p 8 he said this:
"This means that some force, enough to breach (say, 40 centimetres water pressure usually associated with well applied cricoid pressure) was used passing the tube. This is shocking to read: there could've been damage to the seriousness of rupture of the oesophagus (sic) with soiling of the mediastinum."
Dr Donnelly in his report dated 11 September 2006 described the imputed push beyond cricoid pressure as "a tragic, nay inexplicable manoeuvre that … was not only negligent but at extreme variance to my knowledge and experience of accepted clinical practice in this country".
Unlike Dr Gibbs, Dr Donnelly did not regard it as easy for an anaesthetist to insert an ETT beyond the point of cricoid pressure. In Dr Donnelly's opinion the degree of force required to do so would have been felt by the anaesthetist. At T 141 in cross-examination he said:
"… I can't understand unless the tube was pushed very hard past the cricoid, the occluding cricoid pressure, how he could have missed that."
Dr Donnelly made the point that although an oesophageal intubation can occur without negligence, that event needs to be recognised "very quickly": T 81. Dr Donnelly agreed that the only way it can be ascertained that the ETT is in the correct position is by doing some inflations and waiting for a capnograph reading. As to the length of time it would take to provide such a reading Dr Donnelly said at T 93:
"I think it would take less than 10 seconds, even allowing for a three second delay with the capnography. One or two quick inflations and if you haven't seen the CO², you have to have a high index of suspicion that you may not be in the right place."

Dr Donnelly's evidence concerning the release of cricoid pressure

The defendant also attracted criticism from Dr Donnelly over what Dr Donnelly believed was a release of cricoid pressure in the process of the first attempted intubation and prior to the second successful intubation. Dr Donnelly reached those opinions based on the defendant's anaesthetic note at Vol 2 p 140. That note reads in part;
"Difficult intubation with cricoid pressure, posterior cricoid seen, improved view with upward pressure. First intubation – oesophagus, during time taken 15-20 seconds to establish position of tube – patient regurgitated via ETT.
Positioned on side ETT removed, cricoid applied – bagged ventilation, difficult intubation with bougie – problems (1) oesophageal intubation impaired cricoid pressure; (2) initial inflation inflated stomach; (3) ETT may have conducted most of the contents past the larynx. …"
His interpretation of this note was explained in examination‑in‑chief at T 72 as follows;
"The … message which comes to me clearly through this is that cricoid pressure – may have been breached. If you go to the fourth and fifth line it says 'Posterior cricoid seen'. Now, you don't see the cricoid. You can see the arytenoids … but you don't necessarily see the cricoid if proper cricoid pressure is seen (sic). If you see the cricoid, that means that cricoid pressure has been removed. And it says 'Improve view with upwards pressure', now there's another form of pressure which you can use on the neck which goes by the acronym BURP, backwards, rightwards and upwards pressure to bring the larynx, the access of the larynx into the view of the intubator. Now, that is not cricoid pressure. That will not stop reflux. Backwards, rightwards and upwards pressure is a manoeuvre to get the larynx into view. So it's difficult to know – I found it difficult in my original assessment to know what was going on, because he … he talks about cricoid pressure and then contradicts it here. Then he positions the patient on the side and reapplies cricoid pressure, which infers that the cricoid pressure was taken off …"
Dr Donnelly went on to say that in his opinion once the plaintiff was placed onto her right-hand side it would have been very difficult for a right‑handed assistant (Ms Sleight is right-handed) to maintain cricoid pressure.
In cross-examination Dr Donnelly was alerted to the fact that the note only refers in the initial intubation to upward pressure and not BURP. Dr Donnelly responded by saying that he interpreted the reference to upward pressure as being a reference to BURP. (T 142).

Norman Andreas Juengling

In examination-in-chief, the defendant said he was a specialist anaesthetist who as at 2004, including his initial anaesthetic training, had been practising for 22 years.
From 1990, the defendant was in private practice in the Mandurah and Rockingham areas as a specialist anaesthetist. The major hospitals that he worked at in 2004 were the Peel Health Campus, the Rockingham‑Kwinana Hospital and occasionally at St John of God's Hospital, Murdoch.
He said that on 21 January 2004 he was at home and was rung by Dr Couch. Dr Couch informed him that he had a young woman in the emergency department with a bowel obstruction that needed a laparotomy. The defendant said that he drove up to the Rockingham‑Kwinana Hospital and found the patient in the emergency department where staff were preparing to take her to theatre.
The defendant said that he assessed the plaintiff by taking a history, observing her and reading through the notes. At T 167-9 he described what he did as follows:
"This lady was 27 years old. She was fairly small in stature. From the history she had previous IVF treatment for which she had laparoscopies. There was no history of anaesthetic problems. There was no significant other medical history. She had no allergies. I think she may have been on some IVF medication at the time. The last IVF treatment had been about 10 days previously and I seem to recall that there was a query whether that had been successful. I think she might have been bleeding at that point but I can't be sure. So I had a lady there that they couldn't quite test just yet for pregnancy because she was just too early on. Looking at the patient and looking at the notes, what you worry about in these sort of cases with a bowel obstruction – there is, first of all, the actual physiological problem with bowel obstruction where she had been – had vomiting and diarrhoea for two days, I believe, so she was likely to be dehydrated and have electrolyte abnormalities. So I was looking through the notes and looking at the patient. First of all, in terms of the patient she was febrile. Her temperature was up to about 39 with a tachycardia. Looking at the cardiovascular system, her blood pressure was normal. It had actually been near enough normal since admission. That, I gather … is an indicator of inflammation and infection. Looking at her electrolytes, she had a low potassium of 2.9, but the staff in the emergency department had already given her several litres of fluid and in the last litre they had given her 40 millimoles of potassium. So on that I thought she was probably near enough rehydrated given her size of only 50 kilograms and that the potassium was probably in the low normal but she was otherwise healthy so I didn't think it would be a major issue. Dealing with a bowel obstruction, you really have to get on with it because it's now six hours since she's been there and there's a risk that if you continue to wait it will deteriorate. In terms of the actual procedure, you're looking at the sort of anaesthetic you give. What you worry about is the control of the airway in this case. So you assess the patient for ability to be able to intubate her. That is a fairly complex sort of assessment. It's based on history and on actually looking at the patient themself. History – there was no problems with anaesthetic from the past, but she had only had laparoscopies so there was no actual operation which I could really say that she had a tube for … You then assess the actual patient and what you're trying to do is really consider the ease of intubation. With intubation what you're really wanting to do is look into the cords.
… You have various axes. You have the axis of the larynx, the pharynx and the mouth. They're all at different angles so you have to line everything up. So you have to open the mouth, then you have to place a laryngoscope and pull the tongue out of the way. So what you want to be able to do is to look down straight down on the cords so that's in your mind when you're actually assessing the patient. So you look at the patient and see if there's any obvious abnormalities …You look at the mouth, the teeth, whether they have got dentures, whether there are missing teeth, because will make your laryngoscopy – the laryngoscopy will tend to fall into the holes, that sort of thing. You look inside the mouth. You look at the pharyngeal structures, the palate, that sort of thing. Then you look at sort of the head and neck in general … This lady – she had a somewhat smallish jaw and certainly prominent teeth but nothing that would be outside the normal range and I have intubated ladies like that before and since without too much trouble. So overall I thought that I had a reasonable certainty of being able to intubate this lady."
The defendant recorded his observations on a form provided by the Rockingham-Kwinana Hospital headed "Anaesthetic/Recovery Record", a copy of which is in Vol 2 between pp 137 and 140. The document begins with a subheading of "Pre-Anaesthetic Consultation". Underneath that heading are spaces which record, amongst other things, the patient's history, any observations made by the anaesthetist on examination including a tick the box style section headed "Airway Abnormality" where the anaesthetist is asked to classify the patient's airway according to the four diagrams which reflect the Mallampati Scale. There are also a number of tick the box style yes/no inquiries including an inquiry with respect to previous problems with anaesthetic.
Dr Juengling noted under the heading of "History" that the plaintiff was on an IVF program and had previous laparoscopies and that she had an acute distended abdomen. Under the heading of "Examination", the defendant noted that the plaintiff had prominent teeth and a small jaw. He did not mark the area of "Airway Abnormality" except to write the words between the diagram of a class 2 and class 3 Mallampati patient "(unable to sit up)". Under a subheading of "Airway Problems" the defendant wrote a question mark.
The defendant said that he was unable to make a Mallampati Scale classification because the plaintiff was too ill and unable sit up. Nevertheless, he said that he could see some of her palate and that he judged her to be 2 or 3 on the Mallampati Scale.
At T 172 the defendant explained why he put a question mark next to the heading in the form "Airway Problems":
"I was dealing with a patient who had an acute abdomen, who was at risk of aspiration. I was reasonably certain that I could intubate her. I couldn't say absolutely certain (sic) because there is no history that she had been intubated before. So I always had doubts. I mean, you always have that feeling in the back of your mind that it may be a difficult one but you feel certain – I felt certain that I could intubate her so there was that query in my mind."
The defendant said that after the pre-anaesthetic consultation, the plaintiff was taken to theatre. There, amongst others, was his anaesthetic assistant, Ms Sleight. The defendant said that he had worked with Ms Sleight since 1990. Originally, he had done a fortnightly list at the Rockingham‑Kwinana Hospital but in the six years prior to the night in question he had done fewer lists there.
The defendant said that he planned to use a rapid sequence induction with cricoid pressure. After checking his equipment, he pre-oxygenated the patient. He said that there was no rushing in the case and that there was plenty of time to oxygenate her and that he "guessed" he would have done so for between three and five minutes. He said after pre‑oxygenating the plaintiff the induction agent and muscle relaxant were administered and that cricoid pressure was applied just before the plaintiff went off to sleep. At Vol 2 p 139 the boxes in the Anaesthetic/Recovery Record form for pre-oxygenation and cricoid pressure have been ticked by the defendant.
The defendant said that his standard practice was to prepare an ETT with a stylet in it. He said that he then fashioned the shape of the tube with the stylet in it into a hockey stick shape. He did this, he said, because he wanted the tube pointing in the direction of the vocal cords. He described the hockey stick shape as having a gentle curve. He said that his practice was to then bend the end outside the mouth at about 90 degrees.
The defendant said that in the present case, after the induction agent and muscle relaxant had been administered, cricoid pressure was applied and then he passed the laryngoscope. While the defendant said he could see the posterior part of the cricoid, he could not see the vocal cords. At T 179 he said:
"My first thought was 'Gee, she's a lot more difficult than I' – I can still remember that 'she's a lot more difficult than I thought she'd be'. At that stage what I tried to do is see what I could do to improve the view so I tried readjusting the head, readjusting the blade a little bit and I got my assistant to push further back on the throat and push upwards."
At this time, the defendant said, Ms Sleight was applying cricoid pressure. The defendant explained that he asked her to perform an upwards push to see if she could push more of the larynx into view but that met with limited success. The defendant said he still could not see the vocal cords themselves, although he could see the cricoid ring.
Notwithstanding this, the defendant said he made the decision to use the ETT. He said what he was trying to do was to pass the tube behind the epiglottis and straight through to the vocal cords. He said that he felt confident that he had put the ETT in the right spot.
By reference to his usual practice he said that what he did next was then have his assistant inflate the cuff of the ETT to seal the tube and then connect the ETT to the anaesthetic machine.
The defendant said that he looked for evidence of a reading for CO² on the capnograph. At T 181 he said:
"I don't think I even managed to focus on that properly when I heard my assistant cry out and then I turned around and then I saw the gastric contents coming up the tube and there was also gastric contents in the mouth."
The defendant described what followed at T 181-182:
"So what did you do?---Well, it was obvious that this tube was in the oesophagus and that the patient had aspirated. What I did then was grab hold of the sucker. I mean, I had actually disconnected – sorry, I disconnected the circuit first so that there wouldn't be any sort of pressured air in the circuit so you could drain it straight out. Fluid actually did come out of the tube. I then placed a sucker straight in the mouth and started sucking. At the same time my assistant – I think the surgeon and the – not the actual anaesthetic assistant. My nursing staff and the surgeon helped me turn the patient on the side.
Which side was she turned to?---Onto the right side. Now, I chose the right side because if you do aspirate, you're more likely to go into the right lung. The fluid tracks down into the right lung. It's just the way the bronchi are positioned. The right lung is lower than the left so fluid would track into the right lung preferentially rather than to the left. So if aspiration had occurred, it's most likely to be on the right so I didn't want to sort of then cause problems on the left as well. So we turned her on the right side. I did notice at the time that my assistant continued with the cricoid pressure. I mean, I actually paid attention to that. We then had her on her side with the tube in. I left the tube in purposely at that stage so that any fluid that was coming up could vent through a lower resistance of the actual tube to the outside. Fluid was actually coming out of the tube at the time. We then sort of removed the tube. What I did then was try to suck out the (indistinct) under direct vision. So if we're looking down at that laryngoscope, it's designed to go down the right side of the mouth. The patient was on the right side. It was quite awkward to do, to try to push the laryngoscope in and pull the tongue out of the way and then suck out. Also my assistant's hand with the cricoid pressure (indistinct) so it was not an easy thing. I then sucked out the (indistinct) sucked out all the material. I did not notice anything (sic) significant amounts actually pouring out of the mouth and there was nothing coming out of the patient's nose at that stage. So I sucked out all the fluid that was in the face. My view at this time was probably a lot worse than my original view. I was unsure how long we'd actually spent for the whole up until then. The thought going through my mind at that time was that the laryngoscopy was difficult. It was likely to be far more prolonged and we were reaching the three minute mark where that hypoxia was going to start becoming a problem and I was worried that with the distortion of the anatomy, patient on her right side, that ventilation might be a problem on the right-hand side as well. Now I wanted to know that before I sort of really got stuck into the laryngoscopy that if things got difficult and the patient got hypoxic I could just ventilate her and gain some time. I thought I needed to know that there and then. The patient had cricoid pressure in place. There was no fluid in the mouth so there was very little risk that I was pumping fluid down into the larynx. Cricoid pressure is actually supposed to protect you against inflating the stomach as well. So all these sorts of thoughts were going through my mind. I tried to hand ventilate the patient. It was very difficult. It was impossible basically. So I only tried about two or three breaths. At this stage I could see the saturation was starting to drop.
MAZZA DCJ: When you say "hand ventilate", is that with ---?---With the hand bag.
Yes?---With the mask – sorry, with the mask on the face and tried to see if we could get the lungs to move. In this case it didn't. Also I noticed the capnograph – sorry, the saturation was starting to drop. It was going (indistinct) continued to decline so I had a decision there and then. I had to try to intubate this patient. So I put the laryngoscope in again, jiggled around, got the best view I could and then - I used a bougie this time. The bougie I put basically down the back of the epiglottis into that point (indistinct) down. What you then do is you railroad a tube. So I would've used a tube about this size. I usually go a size down again from what I use for the actual intubation. You then sort of feed this down the bougie and then you get to the cords."

The defendant's anaesthetic note written shortly after the operation and in circumstances which I consider to be very stressful, said that it took 15 to 20 seconds to establish that the ETT was in the oesophagus. Dr Gibbs did not regard 15 to 20 seconds as an inordinate length of time for the defendant to recognise an oesophageal intubation bearing in mind the necessity to pump some air into the tube, wait for the capnograph to work and to check that it was working. However, Dr Gibbs recognised that in the particular situation facing the defendant it should not have taken longer than 15 or 20 seconds to recognise the oesophageal intubation. Dr Donnelly thought that 15 or 20 seconds was too long.
In his evidence the defendant said that it would have been an "outrageously long time" to be inflating the plaintiff's stomach without detecting an oesophageal intubation. He said that he wrote the note without thinking too much about it and that his estimate of between 15 and 20 seconds was a "wild overestimate". He said that having had time to think about it it took him "much less than that".
Having regard to the defendant's own evidence and that of Dr Donnelly, I think if it took the defendant 15 or 20 seconds to recognise an oesophageal intubation that was too long. However, I do not think that the defendant's note was accurate. The defendant wrote the note shortly after what was, even for an experienced anaesthetist, a very stressful event. Further, even at the time of writing the note, although the operation had been completed, it was clear that the plaintiff was seriously ill and would require intensive care. Estimates of time are often, especially in stressful situations, inaccurate and so must be accepted with due caution especially when, as in this case, there is no evidence that the defendant was looking at the clock.
The defendant's evidence was that once he had passed the tube he ventilated the plaintiff and was looking for the carbon dioxide trace on the capnograph when he heard Ms Sleight cry out. He said that he did not even have the opportunity to focus properly on the capnograph reading when Ms Sleight cried out to indicate that the plaintiff had regurgitated.
Ms Sleight was not precise in her evidence about the time it took between the ETT being inserted and when the plaintiff regurgitated. She described it as being after "some period". She did not give an estimate of time between the insertion of the ETT and the time she noted the regurgitation.
Dr Couch gave no evidence in relation to this issue and was not in the operating theatre at the time of the first attempted intubation.
In my opinion, the defendant, under stress, overestimated the time that he pumped air down the ETT in the first attempted intubation. I accept that she regurgitated before he had the opportunity to even focus properly on the capnograph. This conveys to me that the regurgitation happened very quickly after the defendant began ventilating the plaintiff. Notwithstanding the defendant's note, I have concluded that the defendant did not take an unreasonable amount of time to recognise the oesophageal intubation.
There remains for me to decide whether cricoid pressure was applied and maintained throughout the period of the plaintiff's intubation.
It was the responsibility of Ms Sleight, albeit under the direction and supervision of the defendant, to apply and maintain cricoid pressure during the plaintiff's initial intubation. In evidence, she said that she applied and then maintained cricoid pressure throughout the plaintiff's initial intubation and until the second successful intubation. The defendant confirmed this in his evidence.
I have referred to Dr Donnelly's evidence concerning his belief that the defendant's anaesthetic note at Vol 2 p 140 revealed a breach of cricoid pressure.
I do not agree with Dr Donnelly's interpretations of the defendant's notes. While the defendant noted that he obtained an improved view of the posterior cricoid with upward pressure that does not, necessarily imply a breach of cricoid pressure because backward pressure occluding the oesophagus could still have been applied. All that occurred was that the cricoid was being pushed upwards in an attempt to obtain a better view.
It was suggested that in respect of the second intubation the notation "cricoid applied" implied an earlier release of cricoid pressure. In my opinion it does not imply an earlier release of cricoid pressure. The note simply records that the intubation occurred while cricoid pressure was being applied and does not imply the release of cricoid pressure.
I acknowledge that it was also suggested by Dr Donnelly that it would have been very difficult for Ms Sleight to maintain cricoid pressure when the plaintiff was placed on her right side in an attempt to deal with the aspiration of the gastric contents. Ms Sleight acknowledged that it was difficult to maintain cricoid pressure but nevertheless she did. I am firmly of the view that Ms Sleight applied cricoid pressure during the initial intubation and that she maintained it at all times notwithstanding the difficulties that confronted her. However, if cricoid pressure was released when the plaintiff was placed on her right‑hand side, the plaintiff by then had regurgitated and aspirated gastric contents into her lung causing injury to that lung.
It is clear on the evidence, that what breached cricoid pressure was the defendant's initial intubation. Once the ETT had breached cricoid pressure it was a conduit for the plaintiff's gastric contents to regurgitate up the oesophagus. There was some debate during the trial about whether the gastric contents went up the tube or around the tube but, in my view, that was a point of little consequence. What is clear is that the gastric contents flowed up the oesophagus and then went down the trachea into the lung. The volume of material that went into the lung must have been considerable in order to cause the very serious injury to that organ and notwithstanding that some of the material was sucked out by the defendant and Ms Sleight.
In my opinion cricoid pressure was not released at any stage in the process of intubating the plaintiff.

Causation

When the case was opened by Mr Droppert, he indicated to me that in the event that the plaintiff succeeded on the question of negligence, no issue of causation arose. At T 5 Mr Droppert said that this was a consequence of damages having been agreed. However, during the course of oral closing submissions Mr Clyne did not expressly concede the issue. I raised the matter with counsel who undertook to have discussions about the matter. After I reserved judgment on 12 October 2007, the parties had those discussions and as a result, I was notified that the issue of causation was live. The parties prepared written submissions on the issue which were filed on 7 December 2007 by the defendant and 13 December 2007 by the plaintiff. I have read and considered those submissions. Of course, given my finding that the defendant was only negligent in failing to decompress the plaintiff's stomach, I need only consider the issue of causation in light of that finding.
In Fitzpatrick v Robert Norman Job & Wendy Barbara Job t/a Jobs Engineering and Ors [2007] WASCA 63 Buss JA sets out the relevant principles relating to causation between par 219 and par 226.
A defendant will be liable in negligence only if the damage which the plaintiff has suffered was caused by the defendant's negligent act or omission: par 219. It is not necessary that a defendant's negligent act or omission be the sole cause of the plaintiff's damage. Causation will be established if the relevant act or omission materially contributed to the damage: par 220. A court may infer causation by reference to the objective facts and probabilities. Direct evidence is not essential: par 221.
In par 222 his Honour referred to Gaudron J's statement in Bennett v Minister of Community Welfare (1992) 176 CLR 408 at pp 420-421. It is not necessary for me to repeat all that was said there, it is sufficient to note that in cases of negligence by omission the question of causation is to be answered by reference to what would or would not have happened had the act occurred.
At par 227 Buss JA encapsulated the principles as follows:
"In summary, the tribunal of fact is entitled, but not obliged, to find that causation has been established if:
(a)the defendant's breach of duty has created or increased the risk of an event which may result in the plaintiff … suffering reasonably foreseeable loss or damage;
(b)the event in question occurs; and
(c)the defendant has not satisfied the evidentiary onus of pointing to other evidence which suggests that no causal connection exists between the breach of duty and the occurrence of the event."
The propositions referred to in the above paragraph do not mean that once a plaintiff establishes a prima facie case of negligence then the burden of proof with respect to the question of causation switches to the defendant. The correct position was explained by Steytler P and Mc Lure JA in Amaca Pty Ltd v Hannell (2007) 34 WAR 109 at par 395 as follows:
"As we understand the law in Australia, once a plaintiff demonstrates that a breach of duty has occurred followed by injury within the area of foreseeable risk, a prima facie causal connection will be established and the defendant has an evidential burden to adduce evidence that the breach had no effect or that the injury would have occurred even if the duty had been performed. If there is evidence sufficient to displace the prima facie case, it remains for the plaintiff upon the whole of the evidence to satisfy the tribunal of fact that the injury was caused by the defendant's negligence: see Purkess v Crittenden (1995) 114 CLR 164 at 168."
The plaintiff's case as to causation is that had the defendant decompressed the plaintiff's stomach she would not have suffered the injury she sustained either because there would have been no gastric contents to come in contact with her lung or the volume of those contents would have been very much reduced.
The defendant submitted that based on the evidence of Dr Gibbs and the defendant, decompression of the plaintiff's stomach by nasogastric tube would not have guaranteed that the entire stomach contents would have been evacuated. Mr Clyne pointed to Dr Donnelly's evidence that nasogastric decompression is not foolproof and that it was possible that a patient might get more fluid in their stomach as the anaesthetic drugs take effect or that there might be a loculus of fluid which had not been sucked up.
Few things in life are absolutely certain and absolute guarantees can rarely be given. The plaintiff is not obliged to prove that decompression via a nasogastric tube is "foolproof" or is guaranteed to remove all gastric fluid. It is sufficient for the plaintiff to demonstrate that the defendant's omission materially contributed to the damage.
In my opinion, had the defendant passed a nasogastric tube and decompressed the plaintiff's stomach it is more likely than not that the plaintiff's gastric contents would have been totally removed or at the very least would have been substantially reduced to a point where the plaintiff would not have suffered the injuries she sustained after cricoid pressure was breached. This is particularly because the plaintiff's stomach contents were very likely to have been liquid and decompression is more likely to be effective in removing liquids as opposed to solid material. There is nothing in the evidence to show that the defendant's breach of duty had no effect or the injury would have occurred even if the duty had been performed. On all of the evidence before me the plaintiff has satisfied me that the defendant's omission to decompress her stomach by nasogastric tube materially contributed to the injury she sustained.
For these reasons, the defendant's negligence in failing to decompress the plaintiff's stomach caused her to suffer injury.

Conclusion

I find that the plaintiff has established on the balance of probabilities that the defendant was negligent in failing to decompress her stomach using a nasogastric tube and that the defendant's negligence caused the plaintiff to suffer the injuries she sustained. However, I am not satisfied that the plaintiff has made out any other allegation of negligence.

Orders

I propose to order judgment for the plaintiff against the defendant. The quantum of the judgment will no doubt be conveyed to me when these reasons are delivered. I will hear the parties further with respect to the question of costs.