The Supreme Court of New South Wales considered the duty of care owed by an orthopaedic surgeon and anaesthetist to a patient during an operative procedure in Hobson v Northern Sydney Local Health District [2017] NSWSC 589.

Mr Hobson suffered from Noonan syndrome, a genetic disorder that prevents normal development of various body parts. The development of Mr Hobson’s chest was affected by the syndrome and he suffered from severe lordoscoliosis (backward and lateral curvature of the spine) resulting in breathing difficulties which required surgical intervention. It was determined that two separate surgical procedures would be required.

The first surgical procedure was successfully performed on 13 November 2009. However, Mr Hobson suffered what could be described as post-operative complications which ultimately resulted in the second surgery being brought forward to 17 November 2009. Mr Hobson’s suffered a catastrophic injury during the second surgery that rendered him a paraplegic.

Factual findings

During the second surgery, the anaesthetist was experiencing difficulties in keeping Mr Hobson properly ventilated. His Honour Justice Harrison made the following findings [commencing at 221]:

  1. The decision to bring forward the planned second surgery and to operate on 17 November 2009 cannot be criticised. The relevant medical team were taking steps they thought were necessary, at the time, to save Mr Hobson’s life.
  2. Similarly, the decision to operate beyond 8.30pm (after a number of earlier intraoperative episodes of hypoxia and hypotension) cannot be criticised. Mr Hobson’s condition improved after the administration of a muscle relaxant and continuing surgery was warranted.
  3. Ultimately, the absence of spinal cord monitoring after 8.30pm is of no direct significance.
  4. Mr Hobson’s condition shortly after 8.35pm , including further episodes of hypoxia and hypertension, is described in the evidence of Dr Westbrook (plaintiff’s expert) [extracted at 228]:

The PaCO2 is significantly elevated and suggests inadequate ventilation. Consideration to defer surgery could have been made at this time. As the patient was haemodynamically stable at this time decision was taken to proceed with surgery. Throughout surgery there were episodes of reduced oxygenation, decrease blood pressure and falls in end-tidal carbon dioxide. There was later an episode of profound cardiovascular collapse associated with hypoxia and severe hypocarbia. Mr Hobson was appropriately resuscitated and a rapid decision made to abandon surgery. Despite this there was a period of several minutes when the oxygen levels were very low and the blood pressure significantly below 100mmHg systolic. It is this episode which is the probable cause of his paraplegia.

  1. His Honour noted at [242] that it is important not to lose sight of the fact that the surgeon and anaesthetist were confronted with a distressing and difficult intraoperative emergency. However, with hindsight a postural adjustment from prone to supine would have immediately improved Mr Hobson’s condition. His Honour concluded that this is something the surgeon and anaesthetist should have foreseen and acted upon. Failure to do so amounted to a want of reasonable care. The lifesaving nature of the surgery no longer existed when Mr Hobson’s condition after 8.30pm had deteriorated below his pre-operative condition.
  2. The absence or ineffectiveness of spinal cord monitoring was a fact of life in the operating theatre. It was however, considered to be a critical factor to enliven and heighten the need to act conservatively and proceed with the surgery expeditiously.
  3. If the decision to halt the operation had been taken early enough for the surgeon to close the wound and turn Mr Hobson supine prior to 9.30pm, the episode of cardiac collapse and spinal cord stroke would have been avoided. If the surgery had been halted after the first severe episode of hypoxia at 8.30pm then the paraplegia would probably have been avoided. The most likely timeframe in which the catastrophic injury occurred was between 9.20pm and 9.30pm.

Liability considerations

In considering the inherent risk provision of the Civil Liability Act 2002 (NSW) (section 5I) His Honour found that whilst Mr Hobson had pre-surgical vulnerabilities, the second surgery did not include an inherent risk that he might suffer a cardiovascular collapse and vascular disturbance causing paraplegia arising from the circumstances as they occurred during the operation.

The anaesthetist was found to be negligent in not advising that surgery be abandoned no later than approximately 9.00pm to 9.15pm. The surgeon was also negligent for not ceasing surgery at that time. By this time, they were both aware of the metabolic deterioration of Mr Hobson which would have caused a reasonably competent anaesthetist and orthopaedic surgeon to call a stop to the surgery. Accordingly, each breached their duty of care to Mr Hobson by failing to terminate the surgery. This is particularly so in light of the earlier episodes of hypoxia and hypertension (6.50pm, 7.10pm and 8:35pm) and further supported by the telephone call made at 8.50pm by the anaesthetist to a colleague in the face of intraoperative abnormalities the anaesthetist was unable to correct whilst Mr Hobson remain in the prone position.

Civil Liability Act 2002 (NSW) – Section 5O Defence (“peer professional opinion”)

A section 5O defence was pleaded by both the surgeon and anaesthetist and was the subject of expert evidence. However, the concept of whether the surgeon and anaesthetist had acted in a manner that at the time of the second surgery was widely accepted in Australia by peer professional opinion as competent professional practice was not the subject of consideration at the expert conclave and was not a key issue at trial. His Honour noted that Mr Hobson’s evidence did not address the issue and there was only brief reference to section 5O in oral address. The written submissions by the surgeon and anaesthetist did expand on the issue.

The defendants’ expert evidence was to the effect that the intraoperative conduct was warranted in not halting the surgery before the time that they did and would be considered widely accepted Australian peer professional opinion to have conformed to competent medical practice.

The defence was ultimately rejected based on the findings of negligence in that the surgery should have been abandoned by 9.15pm at the latest.

Quantum

The quantum assessment included amounts for non economic loss, economic loss, past and future economic loss, superannuation, domestic assistance, past and future domestic care, treatment expenses, holiday care, motor vehicle expenses equipment and building expenses. The total award being $3,828,075 plus costs.

Considerations

This case highlights the difficulties medical practitioners face in emergency situations and intraoperative considerations. It also reminds parties that any genuine 5O defence should be a live issue during trial and considered by experts as part of any expert conclave.