DURANT v TAMWORTH BASE HOSPITAL & ANOR [2003] NSWSC 73

New South Wales Supreme Court

CITATION : DURANT v TAMWORTH BASE HOSPITAL & ANOR [2003] NSWSC 73 HEARING DATE(S) : 25-29 November 2002 JUDGMENT DATE : 24 February 2003 JURISDICTION: Common Law JUDGMENT OF : Newman AJ at 1 DECISION : Judgment for the defendants

CATCHWORDS : Professional negligence(medical) - Evidence - reliability of testimony 24 years after event - Opinion based upon unreliable history CASES CITED : Tamworth Base Hospital & Anor [2000] NSWCA 209 Plaintiff: Terence Paul Durant PARTIES : 1st Defendant: Tamworth Base Hospital 2nd Defendant: Bryant Lewis Bedville (the estate of the late) FILE NUMBER(S) : SC 11919/80 COUNSEL : Plaintiff: G.B. Hall QC / R. Stanton Defendants: S. Donaldson SC SOLICITORS : Plaintiff: Brock Partners Defendants: Blake Dawson Waldron

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

Newman AJ

Monday, 24 February 2003

11919/80 Durant v Tamworth Base Hospital & Anor

JUDGMENT 1 HIS HONOUR: These proceedings involve a claim for personal injuries involving allegations of medical negligence against a hospital and the estate of a medical practitioner. The case has had a chequered history. 2 This is the second trial in the proceedings. The first trial which was held before Murray AJ resulted in the plaintiff obtaining a judgment in the sum of $382,046 plus costs on 19 December 1997. On Tuesday, 8 August 2000 the Court of Appeal ordered that the judgment for the plaintiff against both defendants be set aside and that a new trial be held. The present trial was the product of those orders. 3 The court's task in assessing the evidence in the matter is bedevilled by a number of features. First is the length of time which has passed since the events which give rise to the claim. The plaintiff was injured on 16 April 1978. It was that injury (and I shall turn to this in greater detail later) which gave rise to the treatment which in turn gives rise to the matter now before the court. Second the second defendant, Dr Bedville, died on 28 February 1991. His place in the proceedings is taken by his estate. 4 What I propose to do is to first review facts in the matter which are not in dispute. I shall then turn to factual matters which are in dispute and deal with them accordingly. 5 I turn then to those matters of fact which are not the subject of dispute. As I have already said the plaintiff was injured on 16 April 1978. He suffered a fractured left tibia while playing in a football match. He was taken to the defendant, the Tamworth Base Hospital, where he came under the care of the second defendant, Dr Bedville. Dr Bedville was a general practitioner holding the basic degrees of MBBS. However, he was a member of a panel maintained by the hospital which constituted those who held honorary appointments at the hospital in orthopaedic surgery. 6 Dr Bedville decided to treat the plaintiff conservatively. To that end he on 16 April 1978 applied a long leg plaster to the plaintiff's fractured left leg. The plaintiff remained in hospital as an inpatient and was reviewed between 16 April 1978 and 26 April 1978 on five occasions by Dr Bedville. 7 On 26 April 1978 the original plaster was removed by Dr Bedville and a second plaster applied by him. This procedure was undergone under general anaesthetic. 8 While an X-ray taken on 17 April 1978 indicated slight lateral angulation at the fracture site subsequent X-rays taken prior to the application of the second plaster indicated that the position of the fracture was good. The second of those latter X-rays was taken on the day when the second plaster was applied, namely 26 April. 9 On 2 May 1978 the plaintiff was discharged from hospital. Between 26 April and that date the plaintiff was reviewed on four occasions by Dr Bedville. 10 Following his discharge the plaintiff was reviewed by Dr Bedville on 19 May 1978. Dr Bedville's notes referred to the plaster cast as being satisfactory. However, the doctor noted that the cast should be changed on 14 June. 11 On 14 June the plaintiff's plaster was in fact changed at the Tamworth Base Hospital. This procedure was carried out in the Physiotherapy Department and Dr Bedville was not in attendance. 12 On the next day, 15 June 1978, Dr Bedville saw the plaintiff again. On this occasion he recommended that the plaster be changed once more because he noted rotation of the plaintiff's left foot with inversion. Again on that day the plaintiff's plaster cast was changed at the Physiotherapy Department of the defendant hospital. Once more Dr Bedville was not in attendance when this procedure was carried out. 13 On 19 June 1978 again Dr Bedville saw the plaintiff. On this occasion Dr Bedville's note indicate that the plaintiff was complaining of pressure at the fracture site. The doctor noted his intention to replace the plaster cast if the pressure continued. He noted that he would review the plaintiff in three weeks time and to carry out a further X-ray to his leg. 14 Indeed, Dr Bedville again reviewed the plaintiff on 10 July 1978. He noted that there was at that time no evidence of good union and that formation of callus was but slight. He noted that he would review the plaintiff in eight weeks time to consider the necessity for surgical intervention. 15 Two days later on 12 July the plaster was removed and replaced at the hospital. The records do not reveal if Dr Bedville was present on that occasion. However, an X-ray report indicated very little evidence of any firm bony union. On the next day Dr Bedville saw the plaintiff again. On this occasion Dr Bedville noted that the plaster cast which had been replaced on the day before seemed to be satisfactory. 16 Then on 7 September 1978 Dr Bedville again saw the plaintiff. His notes reveal that the union was incomplete and there had been in fact no improvement noted by way of X-rays since 12 July 1978 in relation to union. This came from his reading of X-rays taken on 7 September 1978. 17 On the next day Dr Bedville discussed the question of surgery with a Dr Fisher whom I gather is an orthopaedic surgeon. Dr Fisher saw the plaintiff on that day and suggested that the plaintiff's leg be examined clinically after the plaster cast had been removed. On 14 September 1978 Dr Bedville again examined the plaintiff. He noted that the fracture was not clinically firm and he then decided to refer the plaintiff to a Dr Clery, orthopaedic surgeon, to consider open reduction. 18 The plaintiff was seen by Dr Clery on 20 September 1978. Dr Clery determined that surgery was required and on 3 October 1978 he carried out a procedure of open reduction and internal fixation upon the plaintiff. On 4 October an X-ray report noted some varus deformity in the plaintiff's leg. Consequently, on 13 October 1978 Dr Clery carried out a further procedure on the plaintiff's leg, namely a revision of the internal fixation. 19 Thereafter, X-rays noted first on 16 October 1978 that the fragments in the plaintiff's leg were in good position and subsequent X-rays noted that union was taking place. Finally on 14 July 1979 it was determined that the fracture of the plaintiff's tibia had united. 20 On 31 July 1979 Dr Clery removed the plate from the plaintiff's tibia which had been put in place during the surgical procedures carried out by Dr Clery. Dr Clery noted a discharge coming from the wound in the plaintiff's leg but hoped it would settle. 21 Unfortunately, it did not. Thereafter the wound in the plaintiff's leg deteriorated and despite various procedures being undertaken including skin grafting and regrafting the plaintiff's leg deteriorated to such an extent that amputation was considered the only feasible procedure. Finally on 2 March 1983 Dr Marsden, orthopaedic surgeon, amputated the plaintiff's left leg below the knee. 22 The plaintiff's case may be summarised as follows. 23 Dr Bedville neglected to properly supervise the plaintiff's treatment in that:-