Justice Schmidt’s decision in Stefanyszyn v Brown; Brown v Newcastle Private Hospital Limited t/as Newcastle Private Hospital [2016] NSWSC 826 is an important reminder of the difference between the duty of care owed by a visiting medical officer who provides medical services to patients at a hospital, and the duty of care owed by the hospital.

It is also an important reminder that the duty of care owed by a hospital and a medical practitioner is independent of the duty owed by the other and cannot be delegated.

The facts

On 1 December 2008, Colleen Stefanyszyn underwent elective surgery at Newcastle Private Hospital. The surgery was performed by Dr Brown.

During the surgery, a loop of suture material was inadvertently looped around Mrs Stefanyszyn’s bowel. As a result, there was a blockage in the bowel, infection set in, Mrs Stefanyszyn repeatedly vomited faecal material, she inhaled some of that material with resulting pneumonia, her electrolytic balance became disordered, her oxygen levels deteriorated and she suffered a fatal cardiac arrest on 5 December 2008.

Despite Mrs Stefanyszyn not recovering from the surgery as was expected and her deteriorating condition, the cause of her symptoms was not investigated, the blockage was not identified and surgical steps necessary to remove it were not taken, with her death the result.

The plaintiff’s husband and her two daughters brought proceedings against Dr Brown under the Compensation to Relatives Act 1987 (NSW). They also made claims for nervous shock. Their claims were settled prior to hearing.

Dr Brown admitted that he had breached his duty of care to Mrs Stefanyszyn and admitted that the breach had resulted in her death. He also filed a cross-claim against the Hospital seeking contribution pursuant to s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW).

During the hearing, the Hospital admitted that it had breached its duty of care to Mrs Stefanyszyn because it failed to record certain observations at certain times. Whether they were the entirety of its breaches and whether they contributed to Mrs Stefanyszyn’s death remained in issue.

The Hospital also relied on a standard form “Ellis disclaimer” which Mrs Stefanyszyn had signed before surgery which provided:

I have engaged Dr Oliver Brown as my private treating doctor to undertake the medical management of my medical condition and to provide medical services to me. I acknowledge that my private treating doctor is not an employee, servant or agent of hospital and I will not hold the hospital responsible or liable for any injury to me caused by the negligence or breach by my private treating doctor, or any other health professional engaged by me or by my private treating doctor to provide me with medical, pathological, radiological or other medical type services.

I acknowledge that the hospital will provide hospital facilities for nursing services and paramedical services to assist with my medical management and services, and it is liable for any injury caused by any negligence or breach of duty in respect of these services provided to me.


In reaching her decision, Justice Schmidt was required to consider the difference between the duty of care owed by a hospital and the duty of care owed by a private medical practitioner who provides medical services at the hospital. Her Honour noted that the basis of a hospital’s duty arises out of the hospital/patient relationship and the scope of its duty arises out of the nature of the services which the hospital agrees to provide to the patient. Therefore, as discussed in Ellis v Wallsend District Hospital (1989) 17 NSWLR, there is a distinction between the duty owed by a hospital which functions as a place where medical care facilities are provided for the use of a physician and his patient, and that of a hospital which functions as a place where a person in need of treatment goes, in order to obtain treatment provided by the hospital.

The treatment provided in the emergency department of a hospital is an example of the latter, in which the hospital will be liable for the negligence of the physicians it employs. In the former, the patient’s use of the hospital is the result of the arrangement made between the hospital and physician, by which that physician is granted hospital privileges. In such cases, the hospital is not responsible for the negligence of the physician, but only those employed to provide the services the hospital provides to the patient. It is this type of arrangement which the Ellis disclaimer that Mrs Stefanyszyn signed was intended document.

The Hospital submitted that its nurses were under a duty to “assist” Dr Brown with the medical management of the plaintiff. Justice Schmidt rejected that. He held that the scope of duty that the Hospital owed to Mrs Stefanyszyn was broader than the Hospital contended. It extended not only to the nursing and paramedical services it provided to Mrs Stefanyszyn, but also to the services which it did, or ought to have provided, by all members of the clinical team it assigned to help Dr Brown provide Mrs Stefanyszyn with the care she required, in accordance with its policies, while she admitted to its facilities.

Two of the Hospital’s experts had expressed views that the “burden or responsibility” for Mrs Stefanyszyn’s deteriorating condition had passed at certain points from the Hospital to Dr Brown. Justice Schmidt held that view was wrong in law and reflected a misunderstanding of the nature of the Hospital’s non-delegable duty of care to Mrs Stefanyszyn. The duties owed by Dr Brown and the Hospital were independent of the duties owed by the other. They were non-delegable duties and could not be “passed on”.

Interestingly, the Hospital did not call any of its staff to give evidence in the case and there was no explanation for the failure to call those staff as witnesses. Accordingly, the Court was required to infer that any evidence given by those witnesses would not have assisted the Hospital’s case.

The Hospital had also failed to produce a copy of the relevant Clinical Pathway Guidelines under subpoena. Absent any explanation for the failure to produce that document, the Court was also required to infer that it would not have assisted the Hospital’s case.

Referring to views expressed in the joint expert report, Justice Schmidt accepted that the role of the Hospital’s nursing staff was to:

…follow treating doctors’ orders, report changes in conditions, take accurate, regular readings of standard post-operative observations, as well as specific observations pertaining to surgery, or as requested by surgeons and anaesthetists; to observe for infections and that recovery is not following the expected path; to respond to verbal concerns from patient and treating doctor; to record all findings on appropriate charts and/or related care pathways, if used at the facility and in patient progress notes; to identify fluctuations which may be abnormal; to contact surgeons and/or anaesthetists if there are concerns about observations or the general recovery of the patient; to be accountable for professional practice in accordance with National Competency Standards; to work under direction and supervision of more senior nursing staff; and to report concerns about patient health status and response to interventions to senior nursing staff.

Justice Schmidt concluded that the Hospital had breached a duty of care to Mrs Stefanyszyn because its nursing staff had failed to record certain observations, failed to make required observations, and, as deteriorations in her condition were either detected or ought to have been detected, failed to take available steps to deal with those deteriorations in accordance with its own Clinical Pathways Guidelines, which required that Mrs Stefanyszyn be assessed by a clinical team.

Dr Schmidt noted that the fact that Dr Brown reviewed Mrs Stefanyszyn daily during her admission was not sufficient to satisfy the Hospital’s duty to Mrs Stefanyszyn. The Hospital’s failures were not in failing to advise Dr Brown of matters which he already knew, but in failing in its duty of care to provide Mrs Stefanyszyn with the services which she required.

Justice Schmidt was satisfied that the evidence established that, on the balance of probabilities, the Hospital’s breaches of duty created or increased the risk of injury which resulted in Mrs Stefanyszyn’s death. She held that the Hospital’s contribution to Mrs Stefanyszyn’s death must be assessed at 20% as that reflected the evidence as to degree of departure, both by Dr Brown and the Hospital, from the duty of care which they each independently owed to Mrs Stefanyszyn, bearing in mind their respective roles, the times at which and the circumstances at which they provided her and failed to provide her with their respective services.


Justice Schmidt’s decision is an important reminder that the duty of care owed by a Hospital to its patients is independent of the duty of care owed by a private medical practitioner engaged by the patient to provide them with services during their hospital admission. The Hospital’s duty of care is non-delegable and is not subsumed by any breach of the independent duty of care owed by the medical practitioner.

Before seeking to disclaim liability, a hospital should carefully consider what services it was required to provide to a patient and assess whether those services have been provided in accordance with the appropriate standard of care and in accordance with all relevant hospital guidelines, protocols and policies.

Importantly, the scope of a hospital’s duty is not limited to ensuring that nursing staff provide “assistance” to the medical practitioner in the medical management of the patient and a hospital will not escape a finding of liability merely be pointing to the fact that the medical practitioner responsible for the patient’s medical management reviewed the patient regularly during their admission.

To avoid being found in breach of the duty of care owed to patients, a hospital should ensure that nursing staff make required observations, appropriately document observations, identify fluctuations which are abnormal and notify surgeons or anaethetists if there are concerns about observations or the general recovery of the patient. The nursing staff should also be aware of the requirements of any relevant hospital guidelines, protocols and policies and take appropriate steps to ensure that such guidelines, protocols and policies are complied with. This may require the nursing staff to arrange for a patient to be assessed by a medical practitioner or clinical team.