Background

Mrs Tinnock claimed damages from the Murumbidgee Local Health District for a severe infection allegedly suffered as a result of complications from a repair of an incisional hernia performed on 7 June 2010 (surgery).

Mrs Tinnock’s primary claim was that she did not consent to Dr Gundara, the surgical registrar, performing the surgery, and only consented to Dr Payne, the specialist general surgeon, performing the surgery. She alleged trespass to person, in particular battery pursuant to section 3B of the Civil Liability Act 2002 (NSW) (Act).

Her secondary claim was in negligence, which included the failure by the surgeons to insert negative pressure surgical drains during the surgery, which she claimed would have substantially reduced or eliminated the risk of post-surgical infection.

Decision

The Court concluded that Mrs Tinnock’s consent extended to the involvement of Dr Gundara as the primary surgeon under the supervision of Dr Payne. The consent form, signed by Mrs Tinnock clearly stated that the surgery may be performed by another doctor, and it was likely that, during the consent process, Dr Payne would have explained that registrars often perform procedures in the public hospital system.

As such, the Court rejected the plaintiff’s claim in battery, and held that it was clear that the surgery was not done with intent to cause injury, and the surgery was reasonably necessary treatment for the plaintiff’s incisional hernia.

The Court, however, upheld the plaintiff’s claim in negligence. Based on the expert evidence, the Court found in a case as complex as Mrs Tinnick’s, including that she was a past smoker, obese, and had a previous caesarean section low in the abdomen, competent professional practice required the closure of the patient’s abdominal wound with negative pressure surgical drains. The Court also held that Dr Payne’s failure to identify a mesh infection and treat it more aggressively after the surgery fell short of the standard of care. 

Pursuant to section 5B of the Act, the Court found that the risk of harm which materialised was both foreseeable and not insignificant. The Court held that it was satisfied that had the negative pressure drains been employed, Mrs Tinnock’s outcome would have been very different to that which ensued.

The Murumbidgee Local Health District was vicariously liable for the actions of Dr Payne and was ordered to compensate Mrs Tinnick in the amount of $1,005,509.00 in damages plus costs.

Comment

Importantly, the Court recognised that the consent form clearly stated that the surgery could be performed by another practitioner, as is often the case in the public health system. This removed Mrs Tinnick’s ability to argue that she had not consented to the surgery as performed. As battery, if proven, may be excluded under a medical indemnity insurance policy, it is important that health services and practitioners have adequate consent forms and processes in place.