Wright v WA Country Health Service
[2009] WADC 46
•27 MARCH 2009
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: BROOME
PERTH
CITATION: WRIGHT -v- WA COUNTRY HEALTH SERVICE [2009] WADC 46
CORAM: FENBURY DCJ
HEARD: 5-7 NOVEMBER 2008, 4-5 DECEMBER 2008, 6 MARCH 2009
DELIVERED : 27 MARCH 2009
FILE NO/S: CIV 345 of 2006
BETWEEN: WILLIAM WRIGHT
Plaintiff
AND
WA COUNTRY HEALTH SERVICE
Defendant
Catchwords:
Damages for medical negligence - Premature discharge from hospital emergency department - Turns on own facts
Legislation:
Nil
Result:
Judgment for Plaintiff
Representation:
Counsel:
Plaintiff: Mr J R Johnson
Defendant: Mr D R Clyne
Solicitors:
Plaintiff: Julian Johnson Lawyers
Defendant: Minter Ellison
Case(s) referred to in judgment(s):
Nil
FENBURY DCJ: This is a claim for damages for personal injury caused by medical negligence alleged to arise out of the plaintiff being discharged too early and sent home from the Accident and Emergency Department of the Broome Regional Hospital. When the plaintiff represented at the hospital two days later he was gravely ill.
The quantum of damages has been agreed at $37,500. Causation and liability are in issue.
Non-contentious factual background and chronology
At 1038 hours on Saturday, 3 July 2004 the 56-year-old plaintiff attended the Emergency Department of Broome Regional Hospital complaining of left sided abdominal pain, which he had been suffering for about two hours. The abdominal pain was said to be of sudden onset. The plaintiff said he had not vomited and he did not have a fever. He was seen in triage by a nurse at 1040 and then by a doctor at 1055. He was observed by nursing staff to be dry‑retching.
The plaintiff's blood sugar level was assessed by a preliminary test to be 18.8 mmol/L.
The plaintiff was examined by the doctor and he indicated he had been previously well. He had nothing remarkable on examination of his skin. His blood pressure was elevated. His heart, lungs and heartbeat appeared normal. He complained of tenderness in the area of and above his left hip. The plaintiff was apparently able to cough and sit up. He had a normal gait.
It should be noted that these observations were continued in the Emergency Department notes, being p 1 of Exhibit 1, and the entries are not in any particular chronological order.
At 1110 the plaintiff was given an anti-vomiting injection.
At 1115 the plaintiff was given by injection 100 mg of Tramadol. It was given by injection because oral administration was contraindicated because of the nausea.
At 1150 the plaintiff was given an anti-nausea injection.
The Emergency Department doctor, Dr Russell, made a notation on the notes to the effect that he felt the level of pain was very much greater than was indicated by the clinical signs on examination.
Dr Russell noted his impression of the plaintiff as being:
1.Non-specific abdominal pain;
2.NIDDM (non-insulin dependant diabetes mellitus);
3.Hypertension.
Dr Russell's plan was that the plaintiff have access to further Tramadol and be followed up with the Broome Aboriginal Medical Service on the following Monday.
At 1220 the plaintiff was discharged home on foot.
Most of the above information is contained on p 1 of Exhibit 1 being the Emergency Department notes of the plaintiff's attendance. What is also significant about the notes is what they do not contain. There is no record on the notes of any observation made or opinion formed about the plaintiff's pain having been reduced or resolved.
Indeed, the location of the summary observations concerning Dr Russell's impression, and plan, being as they are at the foot of the section of the document set aside for the recording of history, examination and treatment, could suggest that the plaintiff was continuing to suffer the abdominal pain.
The consensus of the evidence from the medical witnesses was that the analgesic effect of the Tramadol administered by injection at 1115 would have been likely to have peaked at about two hours later and would have had effect for up to six hours.
It is undisputed the plaintiff was discharged just over an hour after receiving the Tramadol injection and the analgesic effect of the Tramadol would have been likely to have been still climbing to its maximum.
At 0253 on Monday, 5 July 2004, just over 38 hours later, the plaintiff re-presented at the Emergency Department at Broome Hospital suffering from severe respiratory distress. He was desperately ill and transferred to Royal Perth Hospital by Royal Flying Doctor Service later that morning.
At Royal Perth Hospital it was identified that the plaintiff was suffering from septic shock for which he underwent inpatient care in the Intensive Care Unit.
The plaintiff's evidence
The plaintiff was born on 2 April 1948. He said that his health had always been reasonably good. He had no major health problems. He became aware 3 July that he had diabetes but it was of the non-insulin dependent variety. He was not receiving any medical treatment and indeed believed that he had not visited a doctor "for quite awhile" before.
The plaintiff said that on 3 July, he got up out of bed and felt severe pain in his "tummy". He took some Panadol but it had no effect. He'd never experienced this pain before. On a scale of 1 to 10, he described it as being a 9 or a 10. He said he could not breathe properly, and he was breathing fast. A friend took him to the hospital. He saw a doctor and his temperature and a blood test was taken.
He said the doctor asked him if he had been drinking. He said that he was suffering from unbearable pain in his tummy. He said he had not had a drink for 30 years.
The plaintiff said that he received an injection to relieve the pain but "it didn't do any good". He said he was lying on his bed groaning with pain. He said the doctor was at the desk about seven metres away. He lay there on the bed and after a while he asked if he could go outside in the sun. He went outside for 5 or 10 minutes and then came back in. The plaintiff said that he was coughing and he asked for a tissue and he coughed up fresh blood on the tissue. He threw the tissue in the bin. A nurse picked it up, looked at it and then threw it back in the bin. The nurse said nothing. The plaintiff said nothing. He could not remember what the nurse looked like. His evidence was to the effect that he was in pain throughout the period he was in the hospital lying on the bed.
The plaintiff's evidence was that Dr Russell said to him that he was discharged after telling him that he had a diabetes problem and he should attend at the Aboriginal Medical Service the following Monday. The plaintiff said he got up from the bed, still in pain, and he felt confused. He walked outside, looked around and then set off home, nearly tripping over on a number of occasions. He said that he reached the bitumen, stood there for quite a long time, and then was about to cross the road when he saw people who were on their way to the football, one of whom he knew by the name of Leah Dolby. He said that he was very sick. He said that he felt a lot worse since leaving the hospital. He continued on foot but was unable to make it home and stopped at his brother's place.
When he got there he was put on the trampoline out the back and given four blankets because he was "freezing". The plaintiff said that although it was a hot day, he was shaking and had started feeling much more feverish when he arrived at his brother's place. He slept on the trampoline until he was woken up in the evening. He was then taken home. He went to bed when he got home. In due course, he said that his condition worsened and eventually he was taken back to the hospital by his sister. He could not recall much after that.
In cross-examination the plaintiff denied that he was upset when he was asked by the doctor if he had been drinking. He said that he was too sick to get angry. He could not remember how many nurses were on duty that day, nor what the nurse who was on duty looked like. He could not remember any names or anything about the nurses whatsoever. He said that the injection did not help him at all. He had some confusion about how many objections he received. He said that he asked a passing nurse for a tissue which was provided and he coughed up fresh blood. He said the blood was enough to fill the inside of a tissue. He said it was bright red and it came from his mouth. He said he put it in the bin which was beside the bed, his bed being the middle bed of three beds. He alleged the nurse bent down, took the tissue out of the bin, looked at it, looked at the doctor who was on duty and too busy to look at her, and then she threw it back into the bin and walked away.
The plaintiff said he was concerned as to why the nurse did not say anything to the doctor. He said that he did not tell the doctor about the blood on the tissue because he was too sick. He said he was too sick to talk for himself. He said he was too frightened, after having been told that he had diabetes.
The plaintiff said that he was not told that if he felt worse that he was to come back to the hospital. He said that he did not come back to the hospital because the doctor told him to go to the Aboriginal Medical Service on the Monday.
The plaintiff agreed that he had been given some tablets to take home. He did not take any on the Sunday. He said he did not know they were for pain. The plaintiff said that on the Sunday morning, he felt just the same as previously except that he was short-winded. He said he got much worse on early Monday. He said that he did have shortness of breath on the Saturday but he had no chest pain. He said he was coughing on the Saturday but it was ordinary phlegm.
The plaintiff said that it was only blood that was on the tissue, there was no phlegm. The plaintiff said that all he was concerned about at the time he was leaving the hospital was his severe pain.
The plaintiff's account of what happened when he left the hospital at 1220 on 3 July and that evening is supported by the evidence of Leigh Pindan and Leah Dolby.
Leah Dolby's evidence
Leah Dolby was approximately 41 years of age and employed by the Department of Child Protection. She knew the plaintiff but was not related to him. Prior to 2004 she would see him approximately once per week.
On Saturday, 3 July, Ms Dolby said she and her family were going to a football match which was starting at about 1300. They were going down a track roughly 800 metres from the hospital and she saw the plaintiff walking along.
Ms Dolby said that he did not look well, he was pale and weak, he was taking little steps and he had his hospital band on.
Ms Dolby said she asked the plaintiff if he was OK, and the plaintiff said he was. She did not believe him. She said the plaintiff said he had been discharged from the hospital and was heading home.
Ms Dolby stood awhile and watched the plaintiff walking along. She said he did not look very sick, but he was not himself. He was walking away slowly, taking small steps. She said she watched him for about 20 minutes. He walked down to the next corner and crossed the road. She did not feel happy about it.
Ms Dolby's evidence was not challenged.
Leigh Pindan's evidence
Ms Pindan was born in 1984 and she is the plaintiff's niece. On 3 July, she was at home when she saw her uncle, the plaintiff, walking through the garden. She saw him as he came in and he looked very weak. He was hunched over. He wanted to lie down.
Ms Pindan and others moved the trampoline from the back patio into the sun and the plaintiff laid down on it because he was cold. The plaintiff was provided with blankets. This was at about lunchtime and Ms Pindan said it was a hot day. She rang her sister, Tanya, who lives in Geraldton, and told her.
Ms Pindan left the plaintiff to sleep for a couple of hours. In the late afternoon they took him to his place. They drove him there. She said he seemed weak, he was in pain, holding his stomach and chest. She could not remember much else. She said she had seen him on frequent occasions previously. He was usually well, he was active. He used to spend time looking after his own wife who had kidney problems. She took him to his house and left him there. The house was not very far away, perhaps a one or two minute drive. On the Sunday, Ms Pindan said that the plaintiff was still the same. He was sleeping under blankets and felt cold.
In cross-examination Ms Pindan said that the plaintiff looked the same when she saw him on the Sunday as he was when she had first seen him on the Saturday. He was complaining of pain "all around his insides" indicating his stomach.
Its quite clear that these two witnesses, particularly Ms Pindan, speak of the complainant showing signs of abdominal pain, weakness and feverishness in a period shortly after he had left the hospital. That period would seem to be of the order of an hour or so. Symptoms suggest fever and significant abdominal pain, but there is no mention of a breathing irregularity or coughing.
Ms Pindan and Ms Dolby were credible witnesses and I have no reason to doubt the truthfulness and accuracy, so far as they go, of their evidence.
Blood on the tissue
The question of whether the plaintiff coughed up blood and, if he did, whether it was brought to the attention of a nurse in the Emergency Department is an issue of some significance in the case. As I mentioned earlier, the plaintiff said he asked the nurse for a tissue, he then coughed up fresh bright red blood without phlegm, enough to fill the tissue, which he then threw in the bin. He then described a nurse coming along, going to the bin, retrieving the bloodied tissue, looking at it and putting it back in the bin.
There is no reference to this at all in the hospital notes. Dr Russell remembered nothing about this matter. Neither did the triage nurse, Shelley Disney. Indeed, Nurse Disney recalled nothing about the plaintiff's attendance on 3 July 2004.
Shelley Disney had been a nurse since 1986 and a large amount of her time had been spent in the accident and emergency area. She had been at the Accident and Emergency Department at Broome Regional Hospital for 13 years.
She said that she was the triage nurse on the occasion of the plaintiff's first presentation on 3 July. She gave him the number 3 which required reasonably prompt medical attention which there is no doubt the plaintiff received.
Nurse Disney said there would have been a minimum of two and possibly three nurses on duty on that day. She said it was a very small department. It was clear from the contemporaneous records that Nurse Disney administered injections and personally provided care to the plaintiff. However, she did not remember him and had no particular reason to do so. She could not remember which bed the plaintiff was using. She was asked about the alleged blood on the tissue incident at T81 and in particular, having no personal recollection of the day, her attention was drawn to a meeting that occurred about Mr Wright's case in 2005. In examination-in-chief she was asked:
"And what was the version you heard from Mr Wright on that occasion? - - - My recollection was that he either showed or told a nurse that he had used a tissue and it had some blood in it and that he threw it in the bin and that when he told her that she thought about it again and looked at it and threw it back in the bin.
Do you believe that was you if it happened? - - - I don't believe it was me.
Would you do that sort of thing ordinarily? - - - No, not ordinarily.
Why? - - - The bins get quite full, and it would be hard to distinguish between what was in there.
Are there bins in the Emergency Department in that area? - - - Not directly near the beds no.
...
Are you saying that you wouldn't have gone and retrieved a tissue that had been thrown in the bin? - - - It's hard to say. I mean if it was sitting on top and it was obvious, I mean I don't know.
Why would you retrieve a tissue? - - - That wouldn't be the normal process that I'd do. I mean, normally I would give them a sputum jar and ask for a fresh sample because a tissue, one can't send to the lab.
Tell me about that. In what circumstances would you give someone a sputum jar? - - - Even if they say they have coughed up sputum or even if they have coughed up green phlegm, you give them a sputum jar to provide a sample so that you can have a look at it, and, if we need, send it to the lab. "
And then at T85 in cross-examination:
"Other than yourself and Dr Russell, who was working at the hospital emergency ward on 3 July 2004? - - - Nobody has been able to find out.
But in the ordinary course, there would be two nurses on duty? - - - at least, this was on a morning shift.
…
This Saturday morning? - - - There would have at least been two nurses and very likely we had a middle shift, a 9 o'clock through 6 o'clock but in those days it was a 10 o'clock to 6.30 and then there is a nurse manager who floats around.
Alright, but on the floor in the accident and emergency department there would be? - - - A minimum of two.
A minimum of two? - - - Possibly three.
And sometimes student nurses? - - - Correct. And there's sometimes other RN's who are supernumerary.
Explain to me how it works in terms of observation. This man was seen by you, then by Dr Russell. He is given some medication and effectively kept for observation for a period. Who was responsible for keeping an eye on him? - - - Because we're only a small staff we -
Do it together? - - - we do it together, as team work.
So the fact you had triaged him didn't mean that he was your patient and therefore you were responsible for being the one that kept an eye on him. It was a team? - - - Not for the entire time no. I may have been triaging the whole day.
Explain that to me. How does the triage role work? You have a nurse who is allocated? - - - You have to be qualified to be a triage, so if you've got a virgin nurse on who hasn't their qualifications in triage, then they're not allowed to triage. So if I was on with a junior nurse, I would have had to triage every single patient that day.
So it depends who else was the nurse that was working with you? - - - That's correct."
Nurse Disney in cross-examination then agreed that it was of great importance to keep good records and notes.
Then at T89 I asked:
"If you had been shown a tissue with blood (indistinct) had blood on the tissue, having wiped his mouth, what (indistinct) that have been significant (indistinct)? - - - Sorry, did you say what would I have done with it?
Yes - - - Even if he had told me that he had coughed up blood say in the toilet and I hadn't seen it I still would have told the doctor about it and documented it and asked him to supply a sample.
So you don't even have to see it. You believe the patient, if they say they've coughed it up. But if you had seen a tissue that had come from the patient's mouth with fresh blood on it what would you (indistinct)? - - - I definitely would have told the doctor about it. I would definitely have told the doctor about it and documented it."
As I have said, Nurse Disney could not recall the matter at all. She presented as a caring, pleasant woman in the witness box, although she was not at all at ease in the courtroom setting. She was not able to say whether or not she saw and discarded any blood stained tissue as alleged, but she says that she would not have done so. She was an extremely experienced emergency and casualty department triage nurse. Both from her presentation and inferentially from the nature of her occupation, of her calling, I think it most unlikely she would deal with an alleged freshly bloodied tissue in the way the plaintiff asserts. Further, if she did see such a thing, I think it is inconceivable she would fail to record it or fail to bring it to the doctor's attention.
On the other hand, there was another nurse, an apparently younger and less experienced nurse than Nurse Disney, who was on duty that day in the Emergency Department. Indeed, there may have been two other nurses. No other nurse was called to give evidence. The question of whether or not some less experienced, perhaps junior nurse could conceivably have dealt with the tissue as the plaintiff alleges remains.
The plaintiff was emphatic and clear in his evidence that he asked "the nurse" for a tissue, wiped his mouth, and saw fresh blood on it. There was no phlegm. He said nothing about it and he threw it in the bin. He said a nurse retrieved it, looked at it, looked at the doctor who was not watching and said nothing, throwing it back into the bin.
The plaintiff's clear recollection on this is to be contrasted with his poor recollection of anything else specific about the nurse. It is notable that there was apparently some complaint about a blood stained tissue raised by the plaintiff during a mediation-like meeting that occurred in 2005, which would seem to me to be before the potential significance of such a matter would have been raised in medical expert opinion, obtained for this litigation.
I have no reason to reject the plaintiff's evidence that he did produce some blood in one way or another from his mouth. Whether it was from coughing or had something to do with dentition problems he developed very soon later is moot. I am inclined to believe him that he did produce some blood in one way or another from his mouth, wipe it on a tissue and perhaps even throw it in a bin.
But as to a nurse, whoever it may have been but not Nurse Disney, retrieving it, looking at it, tossing it back and making no comment about it, I find very difficult to accept. It is odd I think, that if it occurred, neither the plaintiff nor the alleged nurse would say anything whatsoever about it to anybody else nor make any record of it.
I do not accept that the defendant through a nurse or the doctor, knew the plaintiff produced blood on a tissue after coughing during his presentation on 3 July 2004.
Abdominal pain
It is common ground the plaintiff originally presented at the Emergency Department complaining of severe abdominal pain. It is common ground he was given an injection of Tramadol which is a strong analgesic although opinion as to the strength of it varied.
Dr Russell felt that the plaintiff's complaints of pain exceeded his clinical presentation, in other words, that he was exaggerating his pain or there was nothing seriously wrong.
There is no record of the plaintiff's pain abating at all on the hospital notes, and particularly following the administration of the Tramadol injection at 11.15.
As I have said, the plaintiff was discharged at 12.20. The effect of the Tramadol injection would be expected still to be present and probably increasing.
The plaintiff's evidence was that his abdominal pain continued unabated and that he complained of this and that he was in significant or severe abdominal pain on discharge.
From the observations of Leigh Pindan and Leah Dolby the plaintiff was showing symptoms consistent with abdominal pain within an hour of discharge from the hospital.
Dr Russell's recollection was that the plaintiff's pain had significantly reduced, although he made no note of this.
Given the absence of contemporaneous reference to the issue of the plaintiff's abdominal pain being reduced and given the evidence of the observations of civilian witnesses immediately post-discharge, and given my favourable impression of the plaintiffs honesty I am satisfied on the balance of probabilities that at the time the plaintiff was discharged, he was continuing to suffer abdominal pain. A more vexed question is whether he complained of it. There is no doubt that he had complained of it. There was an event in the course of the plaintiff's presence in the Emergency Department which seems to me to have upset the plaintiff. He was asked if he had been drinking and he felt offended by the question, being a reformed alcoholic of nearly 30 years.
At T16, in cross-examination, the plaintiff was asked about questions the doctor had raised with him as follows:
"And after the nurse had seen you, the doctor came to see you? ‑ - - Yes.
He asked you about your pain? - - - Yes.
And you say you can't remember if he examined you? - - - I can't remember.
You remember though that he asked you whether you had been drinking? - - - Yes, because….that's what they always ask, if you've been drinking.
That's what they always ask? - - - They always ask if you've been drinking when you're sick.
Who are 'they'? - - - Anybody. I mean, in our community, that's the normal thing. If anybody goes in there, the first thing is 'have you been drinking'.
Did that upset you? - - - I was concerned. As I said, I was concerned about my tummy. That's all I was concerned. And my breathing.
Did you get angry when he asked you about whether you had been drinking? - - - No.
You didn't get angry? - - - No, I couldn't get angry, I was too sick to get angry whatsoever.
…"
And later at T20 on being questioned about what he didn't tell the doctor about the blood on the tissue and other matters:
"Did you tell the doctor? - - - I was too sick to speak up for myself…
And later? Fresh blood? When the doctor said you were discharged, why didn't you tell him? - - - I was too sick to talk for myself and too frightened.
What were you frightened of? - - - Because the doctor said 'you're a diabetic and you've got to go to the area nurse of the Aboriginal Medical Service on Monday, and you're discharged.'
…."
And later at T21:
"Why didn't you go back to the hospital? - - - Because, as I said before, the doctor told me to go on Monday to the AMS and I took his word for it, because when I came to the hospital I was still the same when I left the hospital. Surely they must have seen the situation I was in.
Isn't it the case that you were very upset with the doctor? - - - I wasn't upset with the doctor then. I was confused why he was discharging me in this condition.
…."
At T22:
"Didn't you tell people – haven't you said to doctors – that you were very stressed by this doctor and were having bad dreams, in which you would see his face? - - - Your Honour, I haven't said that. All I said was I didn't trust that doctor.
Why didn't you trust the doctor? - - - And I wouldn't want to go back and see him again.
Is that how you felt on the Saturday, why didn't you trust him on the Saturday? - - - I didn't say that on the Saturday whatsoever. I might have said that after the incident but not on the Saturday, I was too sick to say anything".
And the plaintiff goes on to emphasis that he was continuing to suffer severe pain when he was discharged from the hospital.
The plaintiff seems to agree he may not have complained of this. There was no clear evidence that he was asked about it. Dr Russell said he "would have" asked. He made no reference to it in his notes. I am not convinced Dr Russell did ask about it. The plaintiff says he was not asked. For the plaintiff, in all the circumstances to be sent home without being asked about his pain fell short of reasonable care.
Medical evidence
Two experts were called on behalf of the plaintiff, the first of whom was Dr Raftos. His reports were contained in a book which was Exhibit 2. Dr Raftos was a director of emergency medicine and services of a hospital in country New South Wales, a senior specialist in emergency medicine at St Vincents Hospital in Darlinghurst and also Sydney Hospital. He has a number of academic appointments. He is clearly an expert in his field.
Dr Raftos was provided with detailed documentation about the history of this matter, including medical records and also the plaintiff's allegations about what occurred in the Emergency Department of Broome Hospital on 3 July 2004.
Particularly, Dr Raftos was informed and accepted that the plaintiff produced blood from his mouth after coughing, that this was brought to the attention of a nurse, and that she failed to bring it to the attention of medical staff.
Dr Raftos was also informed that the plaintiff:
•had a very high blood sugar level of 20;
•was discharged whilst continuing to suffer severe abdominal pain;
•was unsteady on his feet.
Dr Raftos mistakenly believed that the plaintiff was a known diabetic. It was common ground that the plaintiff had not ever been treated previously for diabetes.
It is clear that Dr Raftos placed some reliance on his belief that the plaintiff had a cough and was coughing significantly on 3 July and had coughed up blood. His view was that the plaintiff's symptoms were consistent with pneumonia. For the reasons I have set out above, I am not convinced the plaintiff coughed up blood. And there is no evidence that he had a cough on 3 July 2004. I put that matter aside.
Dr Raftos was of the view that the plaintiff's blood sugar levels were so high as to warrant urgent investigation. His view was that it did not matter whether the plaintiff was a known diabetic or not. It seems to me given the plaintiff was not a known diabetic, that Dr Raftos' view about the implications of the blood sugar level may have more weight. He started that a common cause of an elevated blood sugar level is infection, and this is an opinion shared by other witnesses in the case. At T66, Dr Raftos explained that given the elevated blood sugar level and the indication of infection, he would have carried out a septic screen which would have included a blood count (which was done), blood culture, chest x-ray and urine culture.
At T70 Dr Raftos explained that based upon the blood sugar level alone he would have admitted the plaintiff and tried to find out the cause of that elevated reading.
Preliminary observations
Obviously the implications of this opinion, if accepted, would have been that the plaintiff should have been kept longer in the hospital and subjected to further investigation. Given the course of his symptoms immediately upon release, it is likely if he had been kept a little longer that the deterioration in his condition would have been noted and appropriate treatment administered. If he had been kept longer it is probable, in my view, that the plaintiff's very poor outcome in this matter would have been avoided.
As to Dr Raftos' views about undiagnosed ongoing severe abdominal pain, and the plaintiff being discharged in spite of it, he had a similar opinion that the plaintiff, having been given a powerful analgesic in the form of Tramadol, which has an active effect of several hours, should have been kept at the hospital for a sufficiently lengthy period of time to determine whether his pain returned (if it had gone) as the Tramadol wore off.
Again, the effect of this would have been the plaintiff would have remained in the Emergency Department for a sufficiently lengthy time, in my view, such that the symptoms he developed would have been identified and beneficial treatment administered.
Based upon the elevated blood sugar level and the plaintiff suffering ongoing severe abdominal pain post discharge, Dr Raftos' opinion is that the plaintiff should not have been discharged and if he had not been discharged, in essence, he would have avoided significant harm.
A second expert witness called on behalf of the plaintiff was Dr John Vinen.
Dr Vinen was also an extremely experienced and well qualified specialist in emergency medicine. His curriculum vitae was very lengthy. He now is active in medico-legal aspects and provides expert testimony on a professional basis.
As I have mentioned, Dr Raftos assumed the plaintiff had a cough (which he did not), and that he had produced blood from a cough (which I have found not to be the case), and that the plaintiff was a known diabetic (which he was not).
Dr Vinen mistakenly assumed that one of the plaintiff's symptoms on presentation was shortness of breath.
As I have indicated above, these symptoms are all relevant to a disputed diagnosis of pneumonia and I put them aside.
Dr Vinen's opinion was that the plaintiff should not have been discharged because he was still in pain and that more attention should have been paid to the investigation of his pain. In essence, this would have taken time and, again, in my view it is probable that the illness from which he later suffered would have been diagnosed and treated.
Dr Vinen, as was Dr Raftos, was very critical of the quality of the medical records kept by the Emergency Department at Broome Hospital, and, particularly, Dr Russell. He said his view was they were very brief and inadequate. He felt the history that was taken from the plaintiff was inadequate. Dr Vinen also proceeded upon the basis that blood was produced by the plaintiff from a cough and that it was brought to the attention of the nurse and he felt that the failure to act upon it and report it and record it was "deserving of strong criticism". Again, I put that matter aside.
On the issue of pain, in his report (Exhibit 2, p 39)Dr Vinen put it like this:
"Tramadol, a narcotic analgesic, is used for moderate to severe pain.
The doctor who prescribed Tramadol must have considered Mr Wright's pain to have been in the moderate to severe range.
Why he did not adequately assess Mr Wright's pain therefore is difficult to understand."
He then lists what in his view should have been ascertained from the plaintiff about his pain involving 10 factors and he then continues:
"As none of this was done at the time of Mr Wright's assessment...the assessment of his pain was clearly inadequate.
As pain was the main symptom this failure was very significant."
...
"Patients with moderate to severe pain should have the cause of their pain identified and should only be discharged on analgesia when serious causes of pain have been excluded and whether prescribed analgesia is effective in alleviating the pain.
To discharge Mr Wright with ongoing pain only partially responsive to analgesia was inappropriate and poor medical practice."
Dr Vinen believed that the plaintiff, when he re-presented on 5 July, was suffering from pneumonia. His conclusion was, therefore, that he must have been suffering from symptoms of pneumonia on 3 July.
In cross-examination, it was pointed out that Dr Vinen had not been given an accurate history. He had mistakenly assumed the plaintiff complained of shortness of breath.
Dr Vinen's assumptions concerning the plaintiff's recorded symptoms having been clarified, it was then put to him that he would not have admitted the plaintiff into hospital and at T38 he said this:
"Well, I would feel very uncomfortable sending this patient home, not having taken a good history, done a good physical examination, explained the fact that he had blood in his urine, explained the fact that he had hypoglycaemia, and on the basis that he didn't have pain at the time of discharge because the Tramadol was still working. What was happening there was you were treating a symptom which may still well have been present when the Tramadol wore off after the patient was discharged. Now that's not good medical practice. ... What you need to do is wait until the pain relief wears off, and hope that the pain doesn't come back, but if it does, then you basically need to do further work up because this patient is still in pain. I mean you can't send a patient home whose responded to analgesia without being comfortable and knowing full well that they have a major pathology underlying it.
And a bit later:
"I mean, you don't give patients analgesia and treat the pain and send them, let them go home because as I said once the analgesia wears off the pain returns, well, you there's the problem.
...
Well, you'd observe him over an hour and a half wouldn't you? That would be a fair time? - - - No, an hour and a half, the half .... the half life of Tramadol is sort of 6 to 8 hours. I mean you'd need to keep him there for at least that long. One and a half hours is a very brief period in the Emergency Department, in my experience.
But in the major hospitals in Sydney, one and a half hours is not long. Is that waiting or after you've been seen? ‑ ‑ ‑ I'd suggest, perhaps, both. But in any hospital – I currently work in a small hospital and the approach is exactly the same."
Much of Dr Vinen's evidence concerned a debate about whether the plaintiff had symptoms of pneumonia. For reasons that I think I have explained, I do not think that this issue needs to be explored.
At T44 Dr Vinen was asked:
"...looking at this history, what is there that indicates what's wrong with him, other than the pain? - - - Well, the problem is that from the documentation that I received the medical record, you can't make a rational and informed decision about this gentleman because the history and the physical examination are in my opinion inadequate. There's a whole swag of things that really weren't addressed, which I covered in my report, and you can't with any degree of comfort say 'look this gentleman has a major problem going on' because, first of all, there is no reference to whether he has taken an antipyretic agent. Secondly, the questioning in relation to his pain, severity, location, radiation etc hasn't been addressed, so really you can't dismiss the fact that this gentleman may not have had a serious illness. His elevated blood sugar level went unexplained, as did his decreased respiratory rate as did his haematuria. You simply can't ignore those facts."
At T46, Dr Vinen made the observation that, in his opinion, when the plaintiff presented on 3 July he was in the early stages of infection, and when he re-presented he was in an advanced stage of his infection. Whether he spoke of pneumonia or sepsis did not seem to be significant.
At T48 the following question was put:
"In a clinical setting, if this man's pain stopped and he appeared well, it's appropriate, as a matter of judgment, to send him home? - - - Well, not for the long acting analgesia like Tramadol, because you don't know that the pain is not going to return after the Tramadol wears off. I mean, that's why you keep people for a duration of time that allows the analgesia you've used to wear off to see whether or not the pain returns, and if it does, well, then you give them more analgesia then you need to explain, well, what's the cause of the pain? Because otherwise you're just simply treating the symptoms and not the illness."
Dr Vinen appeared on occasions to lose confidence about some of his views during the cross‑examination. He was, however, unshaken in his opinion that the plaintiff's symptoms of pain were inadequately dealt with and the issue is greatly exacerbated by poor note taking and records. As I have mentioned, much of his evidence involved discussion about pneumonia, whether the plaintiff was diagnosed with pneumonia on his re-presentation, and whether he had symptoms of pneumonia on 3 July. In my view, as I have stated, if it is accepted that, for whatever reason, the plaintiff should have been kept at the Emergency Department, or perhaps admitted, for longer then he was, and if it is accepted that the sepsis from which he later suffered was treatable then the plaintiff's case when pared down is simplified. He was discharged prematurely. If he had not been discharged prematurely, given the history, his deteriorating symptoms would have been identified. If they had been identified they could have been treated, and he would not have suffered damage.
Dr Russell gave evidence on behalf of the defendant, not as an expert, but as the doctor in charge of the Emergency Department at the relevant time. He had been in practice for six years and had arrived at Broome Hospital shortly prior to July 2004.
Dr Russell explained the significance of his notations on the Emergency Department notes appearing at p 1 of Exhibit 1. At T39, Dr Russell was asked how it was that he remembered the plaintiff's original attendance on 3 July and he said:
"It wasn't a very busy day in the Emergency Department, and it was two days later obviously when he re-presented, and being told at that time, that reinforces once you go back and read the notes soon after you've seen someone. It reinforces and sort of, I suppose, keeps the memory there. If it wasn't for that, I'm sure I would probably not have any recollection of the events, but this sort of recent review of the notes."
Dr Russell described the layout of the Emergency Department and emphasised the proximity of the beds to the workstation saying that this enables staff to observe patients regularly and constantly. He said that the plaintiff was on a bed about 10 metres away.
At T40, Dr Russell was asked what he observed and recalled and he said:
"When he came into the Emergency Department I was treating another patient. I saw him come through, and it appeared that he was in pain, particularly his abdomen so at that stage I had finished up with the previous patient and then came to review him, and also asked the nursing staff to organise some antiemetics and the pain relief, and then I went through the usual practice of performing (indistinct) him, discussing why he had turned up today, what his symptoms were, what his past medical problems were, and then went on to examine him. At that stage the nursing staff administered the medications and during the course of that hour and a half we would go and frequently see people. We wouldn't write in the notes every time we reviewed a patient, but we would go back multiple times in between our other patients that were attending the Emergency Department, just to see if things had worked, not worked, how things were progressing, and then a final review before discharge."
When asked what his opinion of the plaintiff was on discharge Dr Russell said:
"At that stage he had been there for some time. Like I said, he was given some analgesic medication at the start that didn't require repeating. He was still feeling nauseous, but his pain was much reduced, and we had observed him walking to the toilet, which was approximately 20 metres away, and walking back, without any discomfort or complaints of pain and he was also observed I think briefly to walk outside, but only briefly. His pain had certainly settled. He looked well, as I had explained. His gait was normal. He was discharged from the Emergency Department with follow up plans."
As to the allegation the plaintiff was discharged in severe pain, Dr Russell at T41 said:
"I find it a little hard to I suppose believe because he initially came in that way and, like I said, we had observed him for probably longer then we normally would. He was reviewed multiple times in the emergency attendance and, like I said, when he was reviewed at 10 to 12, his pain was essentially nil and he was given an antiemetic rather then more pain relief. If he was in pain then, we would have given him more pain killers, but that wasn't required, and that we had seen him walk around the Department, we had seen him walk out of the Department ... he didn't offer that he was in extreme pain or anything at the time of his discharge or after his presentation."
Dr Russell said that the use of the analgesic Tramadol should not be taken as evidence of an acceptance that the plaintiff was in extreme pain. Dr Russell explained that the use of Tramadol intravenously was a decision made because of the circumstances of availability of other analgesic medicine rather than an appreciation of severe pain being suffered by the plaintiff.
Dr Russell was asked about what advice he gave to the plaintiff and whether he had given him any advice about return if his symptoms deteriorated. There is no reference in Dr Russell's notes about the giving of advice. Dr Russell stated at T 42:
"Our usual advice we give to most people who attend the Emergency Department, we explained what we felt the problem was, so I explained to him his abdominal pain, there was no clear cause for why it was there, that we had excluded significant pathology, that further tests at that stage were not required, such as an x-ray or ultrasound, which are very low yield in picking up or making a specific diagnosis, and our treatment or management would include an observation period where, if his pain returned, he was to re-present to the Emergency Department, and that he was also to follow up at BRAMS on Monday, which was two days time...He was asked to re-present to BRAMS on Monday for a review of that, and also of his pain, to see if the pain had returned, and also if he developed new symptoms.
....
Did you say anything about re-presenting to the Emergency Department? - - - What I did say, as usually we always say to people, if the pain gets worse or if new symptoms develop, he was to re-present to the Emergency Department."
Later, Dr Russell explained that the plaintiff had got upset when he was asked if he had been drinking alcohol.
In cross-examination the inadequacy of Dr Russell's notes was discussed. His view was that:
"Notes are simply a representation or a summary of the events that relay the pertinent points that help to reach the conclusions, but don't include every question and response asked" (T 45)
Dr Russell agreed that it was important to record important details of a consultation. He was cross-examined about his notation to the effect that the plaintiff's level of pain was greater then his clinical presentation. He stated that:
"That's just documentation for future doctors...It just gives an indication that his pain levels may have fluctuated or that his abdomen examination was less then expected I suppose".
I pause there to say that it seems to me that notation is suggestive of a conclusion reached by Dr Russell at some time during the period the plaintiff was at the Emergency Department.
Dr Russell admitted what seems to me to have been the obvious, which was that to some extent he was reconstructing what happened based upon the medication that had been given to the plaintiff rather then specific recall of the content of any particular conversation. The difficulty of course is the lack of note taking. In relation to the moment of discharge, Dr Russell was asked at T 51:
"What did you ask him and what did he say at that time about his pain? - - - He was reviewed at the time and the same questions would be logically asked.
Dr Russell, just wait. Just answer the question. What do you remember? - - - I obviously do not remember the exact words spoken by each of us. That's clearly not possible, but I would have asked him and, would ask anyone that comes with a problem to the Emergency Department 'has the problem resolved', before we leave the Emergency Department. That's done with the thousands of patients I've treated. Clearly if it has been rectified, the problem, there was no point in attending. So he was asked, an explanation was given, and follow up was arranged.
I again put it to you that this is what you have done; you have reconstructed what you say happened from the fact that you discharged him. You don't remember what was said about his pain, but you don't think you would have discharged him if he had complained of continuing pain, is that right? - - - He certainly did not complain of continuing pain. The exact words spoken either way is not possible, but on discharge he complained that a taxi was not provided. He did not say 'I'm in agony, I can't walk' etc etc. They were not 'I'm in pain'. They weren't words that were spoken. The complaints were of a taxi not being provided."
Dr Russell was asked whether he considered that the elevated blood sugar level of 18.8 (on finger stick test, it was later found to be 20 on blood analysis) was significant and whether it indicated that there should have been an investigation and Dr Russell said at T 53:
"No, I just said that I made an assessment, with the knowledge that a blood sugar of 18, looking for infection etc, possible causes of it. In the Kimberley a blood sugar of 18 is extremely common and we would probably see that three or four times a day. You would obviously assess it, see if there was another reason for it, but unfortunately the most common cause is untreated diabetes, but it wasn't made as an assumption, no."
Dr Russell agreed that a cause of an elevated blood sugar level can be the presence of an infection. He agreed he was aware of this at the time.
Dr Russell initially said that he thought he had arranged a CRP, which is a "marker of infection" (to use Dr Russell's words) but it appeared that he was mistaken about his recollection and one was not performed.
In essence Dr Russell rejected any suggestion that he should have investigated further, based upon the plaintiff's high blood sugar level.
Later in his cross-examination, Dr Russell was asked whether he agreed that a most important factor was whether the plaintiff's pain improved after the Tramadol injection. He agreed that he had not written down any observation on that point. He agreed that the only observation he made about the extent of the plaintiff's pain was that the level of pain appeared to be greater than clinical signs.
Having regard to the evidence of the plaintiff about his pain, and the observations of those who knew him very soon after he was discharged, and the lack of reference in the notes to the level of the plaintiff's pain other than what I have mentioned, I am left with some feeling of disquiet about whether much attention was paid, at the time of discharge, to the question of whether the plaintiff was still suffering pain.
On the balance of probabilities I accept that the plaintiff was suffering significant pain at the time of discharge. And I also accept that the plaintiff complained of it as he states but I think it is likely that, consistent with the notation, Dr Russell had formed a view that there was nothing significantly a miss with the plaintiff. Given what happened and how soon it started, Dr Russel was catastrophically mistaken
Dr Garth Herrington was called to give expert evidence on behalf of the defendant. He was a director of emergency medicine at Kalgoorlie Hospital and he had had significant experience in the field since his graduation in 1995.
Dr Herrington commented that there was "little notation of the features of this history" in the documentation relating to the plaintiff's original presentation namely the Emergency Department notes. In recounting what those notes revealed, he commented that there was "no notation in the clinical record as to whether the patient's pain and nausea had resolved".
He mentioned, in reference to the results of various tests ordered by Dr Russell that it was "unclear as to whether these results were reviewed prior to the patient's discharge".
Later he observes that:
"The history taken by the doctor may have been detailed, however the clinical record does not reflect this. There is little documentation of symptom atology nor were differential diagnoses documented. I am told a full history was taken and different diagnoses considered and excluded."
These observations are contained in Dr Herrington's substance of evidence which appears at p 28 of Exhibit 5.
On the issue of the plaintiff's abdominal pain, Dr Herrington states:
"It would be within standard emergency practice to discharge a person after an episode of abdominal pain. The conditions for discharge to be appropriate would be that the patient was either pain free or have pain that was controlled by simple oral analgesia...the patient must be informed that no clear diagnosis had been made and they agree to discharge and to return if symptoms progress or they deteriorate in any way."
Dr Herrington agreed with Dr Raftos that a patient without a firm diagnosis and acute ongoing pain should never be discharged. He agreed that admission and further investigation to make a diagnosis would be appropriate in those circumstances. Dr Herrington emphasised the importance in the circumstances of a patient suffering from non-specific abdominal pain who has been assessed that the patient following discharge would be informed he is to return if problems persist or progress.
Dr Herrington was of the view that the investigations that were performed on the plaintiff were appropriate to the investigation of a patient with abdominal pain. His view was "there is no clear evidence the plaintiff was very sick on 3 July and that this was missed".
On the issue of the significance of a blood sugar level of 18.8 or 20, in a person without a previous diagnosis of diabetes, Dr Herrington's view was that such a reading is common amongst Aboriginal people who present to an Emergency Department, as was his experience in practice in Kalgoorlie. Dr Herrington denied that such a reading would make him "immediately think of infection as a likely cause".
Dr Herrington emphasised the peculiar advantage that the "man on the spot" had in forming a view about a patient's presentation. Like other expert witnesses it is obvious that he made some factual assumptions which were not born out by contemporaneous hospital records. He spoke of there being an improvement in the plaintiff's mobilisation during his assessment in the Emergency Department which in his mind suggested an abatement of his abdominal pain but agreed in cross-examination that there was no mention about this in documents and that this was an impression that he had gained from his instructions. Dr Herrington believed the plaintiff was in the Emergency Department for two and a half hours, when in fact it was one hour and 40 minutes.
As to the administration of Tramadol and inferences to be drawn there from, Dr Herrington said at T 12:
"...but if you give Tramadol and the pain completely resolves and the patient is comfortable and has no pain, I don't think it would be the practice to wait until the drug had completely worn off before you sent someone home. It comes down to the overall impression about what you think is wrong with the person."
Again, it is notable that there is no reference in the contemporaneous notes to the effect that the plaintiff was comfortable and had no pain. Dr Herrington seems to infer this from the fact of discharge, just as Dr Russell tended to do.
Dr Herrington was clearly in agreement with the assertion that it was very important in the circumstances, if the plaintiff's abdominal pain had abated following Tramadol, that he be advised to come back to the hospital if his pain returned. Of course the plaintiff's evidence was that pain was present at all material times. Again, it is to be noted there was no mention in the contemporaneous notes of the plaintiff having been told to so return.
The gist of Dr Herrington's evidence was that he did not see anything amiss in the contemporaneous records or in Dr Russell discharging the plaintiff home when he did. The latter half of his evidence related to the diagnosis when the plaintiff returned on 5 July, in respect of which, in my view, it does not matter much whether it was pneumonia or sepsis. What is important is that it was a curable or treatable infection. Dr Herrington of course is a contractor employed by the defendant in another rural town. He could not be described as an independent witness although I do not suggest that he does not honestly believe what he gave in evidence was true and correct and that his opinions are honestly held.
The final paragraph in his report stated:
"The concern here is that Mr Wright clearly had a critical illness only one and a half days later. The question is what caused it. There is no clear evidence he was very sick on 3 July and that this was missed."
That may be so, it seems to me, however there was clear evidence that the plaintiff's condition commenced to deteriorate within a short time, may be an hour following discharge. And it is clear that the plaintiff's concerns that he was ill was well founded.
The final expert witness called on behalf of the defendant was Professor George Jelinek.
Professor Jelinek is a specialist in emergency medicine of extensive experience. He has published widely and his curriculum vitae is most impressive.
In his lengthy report reproduced at p 5 of Exhibit 5 Professor Jelinek reviews the information contained in Dr Russell's contemporary notes of the plaintiff's attendance. He does not make any criticism of inadequacy of record or note taking. Significantly, he erroneously believed that the plaintiff's elevated blood sugar level was "in keeping with the patient's known NIDDM" which is a reference to diabetes. It is to be noted, again, that the plaintiff had not been recently ill, was not on medications, and was not known to suffer from diabetes.
However, Professor Jelinek's general view as expressed in his reports was captured in the following:
"In my view, it is reasonable to make an assessment of non‑specific abdominal pain from this presentation, and treat the patient with analgesics and antiemetics to relieve symptoms. I can find no evidence from the medical record that there were any indications of serious underlying illness. It is common for doctors in EDs to work towards a goal of excluding serious or life-threatening illness, and in the absence of these, to treat the patient symptomatically without making a definite diagnosis. Given that most patients attend with undifferentiated illness, and that it takes some time for a clear diagnosis to emerge for many illnesses, lack of definitive diagnosis is to be expected for many patients. This is a common outcome for many ED presentations and does not reflect any deficiency in the standard of care."
Professor Jelinek then makes an observation which I think is pertinent that:
"It is important not to allow the outcome of the patient's presentation on 5 July to influence the assessment of the standard of care provided in the presentation on 3 July 2004. It is well known that hindsight bias and outcome bias affect assessment of the quality of decision making in retrospective review of medical management."
In many respects, Professor Jelinek disagreed with Dr Raftos and he deals with these in his report. I shall refer to a particular paragraph which seems to me to have significance in my view of this matter:
"Dr Raftos states that 'if Mr Wright had been kept in hospital on 3 July 2004 for observation it is likely that the observation would have detected changes in vital signs and clinical features that would have led to the diagnosis of left lower lobe pneumonia at some time later on 3 July 2004 or on 4 July 2004'. This statement appears to be the result of hindsight bias, that is associated with working backwards from knowledge of what later happened, resulting in criticism of what was done at the time by staff who did not have the benefit of that knowledge. It is not possible to know when Mr Wright's vital signs and clinical features changed after 3 July 2004, only that they were abnormal on presentation on 5 July. With serious sepsis, such changes can occur very rapidly."
Of course based upon the evidence of the civilian witnesses, I have already found that the plaintiff's symptoms deteriorated within about an hour of discharge. It accordingly, I think, is possible to know when Mr Wright's "vital signs and clinical features changed" after 3 July 2004. In his evidence‑in‑chief Professor Jelinek, at T 73, repeated his understanding that the plaintiff was known to have diabetes prior to his attendance on 3 July 2004.
The Professor was cross-examined about this from T 79 and at T 80 as follows:
"...would you agree with me that if Mr Wright in fact had no history of diabetes, it had never been suggested to him that he suffered from that condition, that he had no history of any issues with blood sugar levels that he was aware of, that he was not receiving any medication or other form of treatment for diabetes, that that would change the significance that should have been attached to his elevated blood sugar level? - - - If there was no history that he had diabetes and he presented with a blood sugar level of that height, then yes, it would change the significance of that, in that it would be likely that you would make an initial diagnosis of diabetes.
Right. But would you not also consider the probability that the reason for his blood sugar level being elevated may be the presence of an infection? - - - That's certainly one of the possibilities. Infection does tend to elevate blood sugar and there is certainly a stress response in blood sugar related to infection. "
And later at T 81:
"You wouldn't think there may be a link between the elevation in his blood sugar level and the cause for his pain? - - - Well, certainly, one of the things that would go through my mind in someone with abdominal pain is that there is an infective process going on. That's one of the differential possibilities for abdominal pain..."
....
"And you'd do a CRP wouldn't you, as part of your blood tests? ‑ ‑ ‑ In my own practice I would do a CRP. It's not universally done, by any means. But it's something I tend to do. It’s a very non-specific indicator of infection.
Yes, but that's the purpose for it isn't it, it’s a non-specific indicator of the possibility that an infection is present, or inflammation. Is that right? - - - That's right. It's actually infection or inflammation and its one of a number of things you add together to make a more complete clinical picture."
Professor Jelinek was then cross-examined about the administration of Tramadol, it's effective analgesic duration and the question of keeping patients under observation during the process and at T 82:
"Alright, but would you agree with the principle that the idea behind keeping somebody for a period of observation when they presented for significant abdominal pain is to ascertain the process of that pain and whether or not it resolves as a consequence of analgesia that may be given, and after that, analgesia starts to wear off? - - - Certainly that – the purpose of observation is to assess the response to analgesia and improvement in pain is obviously what we're looking for in deciding whether a patient is able to be discharged or has to stay in hospital for longer.
If we assume that, as you said, Tramadol is active for six hours or so, the situation here is that Mr Wright was discharged one hour and 5 minutes after that Tramadol was given to him. Would you agree with me that the period of observation didn't allow any assessment to be made as to how Mr Wright would be once the Tramadol wore off? - - - Well it certainly wouldn't allow an assessment of how he would be when it wore off because it was still working"
And then later:
"...but if you have got Tramadol which is affective for six hours or thereabouts, you'd need to keep him for a substantial part of that six hour period to see, as it started to wear off, how he went? - - - Just looking at the amount of time the patient was kept under observation I – in my practice – I would more commonly keep people for longer than that with a diagnosis of non-specific abdominal pain. The difficulty for me was deciding whether not that was outside the bounds of what is reasonable and those decisions would need to be made at the time judging by the patient's appearance and pain and so on. It's very difficult for me to make that judgment without actually seeing what the patient looked like."
Professor Jelinek was an impressive witness as I have stated and there was much of what he said that seemed to me to make sense. However, he did labour under the misapprehension that the plaintiff was a known diabetic and he did assume that the plaintiff was not in pain or suffering from pain when he was discharged.
Summary of findings
1.As I have indicated I am not convinced that the plaintiff coughed up blood which was shown to a nurse in the Emergency Department on 3 July 2004. Given the undisputed state of his dentition, it seems to me to be likely that blood, if there was ever any on a tissue, came from his teeth. But be that as it may, for the reasons I have attempted to explain, I am not satisfied on the balance of probabilities that the defendant was ever aware through any of its staff, of any production of blood by the plaintiff from his mouth.
2.As I have mentioned, I accept that the plaintiff developed signs of fever, and was suffering abdominal pain, within a short time of his discharge – perhaps an hour or so. In other words, as I have said I accept the evidence of the two civilian witnesses who had contact with the plaintiff during that period.
3.I am satisfied on the balance of probabilities that the plaintiff was in abdominal pain when he was discharged from the hospital. I am not convinced the plaintiff's pain had significantly abated following the Tramadol injection. There is no reference as to whether it did or did not. Dr Russell's recollection is that it did but he made no note of that and it was a critically important matter. In my view, it is likely that Dr Russell formed an opinion the plaintiff was exaggerating his pain level and having regard to the blood sugar level, he referred the plaintiff to BRAMS the following Monday. The plaintiff says he was never told to return if his condition worsened. He took the referral to BRAMS as his next medical step. There is no notation on the notes that the plaintiff was told to return if his condition deteriorated. I am not convinced that he was told to so return.
4.It is not possible to form a view about what was causing the plaintiff's pain when he first presented. The diagnosis for his serious illness 36 hours later is also disputed. As I have mentioned, it might have been pneumonia on both occasions or it could have been some infection that resulted in the sepsis. Be all that as it may, it seems to me to be clear that if the plaintiff had been kept in the hospital for a brief time longer, then he would have avoided serious harm. There seems no dispute that whatever he suffered from on 5 July was curable.
In short, in my opinion, the plaintiff was still suffering pain when he was discharged and he had a blood sugar level that required an investigation for the possibility of infection. The failure to keep him in the Emergency Department longer to deal with his pain and/or test further for infection, both of which would have required his admission for in excess of the period of time by which his symptoms deteriorated, amounts to a failure to take proper medical care. The plaintiff may well not have been particularly communicative, but he did not receive appropriate attention on the day in question. I find for the plaintiff.
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