DISCUSSION OF THE SITUATION UP TO THAT TIME
59As may be appreciated from the above Mrs Lane was, by February 2007, suffering from a number of uncomfortable and serious physical problems, considering her age, such as recurring UTIs , gynaecological problems, bowel problems as well as quite severe cognitive difficulties that, I am satisfied on balance of probabilities, were age related dementia, probably with Parkinsonian features.
60It is also quite clear that Deidre was reluctant to follow medical advice in regard to her mother and that both Deidre and Elizabeth were at times antagonistic toward each other over the care of Mrs Lane. From the GP notes it is also quite apparent that the family conflicts were not helping Mrs Lane in her degenerating cognitive state.
61Mr Sergi submitted that during their respective cross-examinations, each of the Plaintiffs attempted to paint Mrs. Lane's pre-morbid health as being far more robust than it was in reality. He said that each obfuscated when specific examples of Mrs. Lane's limitations was put to them and that it was plain that the Plaintiffs, having appreciated the importance of their mother's pre-morbid history to the prospects of their claim succeeding, attempted to re-invent their mother's history. He further submitted that what was of real importance was the overwhelming evidence as to the true position regarding Mrs. Lane's pre-morbid health. He pointed out that each of the Plaintiffs gave histories to Dr. Pearson, their psychiatrist, regarding their mother's pre-morbid condition that were quite different to what their evidence was at trial.
62He gave the example of Deirdre reporting to Dr. Pearson that caring for her mother was a demanding and difficult job and that she realised at the end of 2005 that she needed to care for her mother. In fact Deirdre had applied for a Carer's Pension in relation to the care she provided to her mother as long ago as August 2003. She completed a pro-forma application (ex12) in which it is recorded that Mrs. Lane needed assistance with a significant number of activities of daily living. Elizabeth, gave a history to Dr. Pearson that Mrs. Lane's cognition had been in decline for several years before her death.
63I agree with these submissions. It was quite apparent that often, when confronted with the findings as to Mrs Lane's pre-morbid health by a treating specialist, some excuse was made up as to why Mrs Lane was unable to function well on that particular day. These ranged from Mrs Lane's deafness, to her not having her glasses with her or having comprehension difficulties on the day in question. Whilst some of these reasons may have played a part in her presentation, I have no doubt that the relevant specialists were able to take into account such difficulties and adjust their opinion accordingly. These reports are un-contested and in some, it is quite apparent that the specialist was well aware of Mrs Lane's physical disabilities.
64There is no doubt in my mind that from a time prior to 2005, Mrs Lane's health had been deteriorating not just cognitively but also physically. Indeed Deidre had returned to live at home with her parents so as to be able to help look after her mother. It is easy in hindsight to forget past difficulties and only remember the good things that were occurring. That is fairly natural. But the overwhelming evidence is that by 2005, Mrs Lane's cognitive health was in serious decline.
65It is also quite apparent that from an early time, Deidre's view of how her mother should be treated in regard to many illnesses was at odds with the medical profession. That is particularly evidenced in the 22 Jan 2004 letter of Dr O'Sullivan to Mrs Lane's GP Dr Beek (p349 defendants bundle) wherein he noted that Mrs Lane was "now frail" and that she was "too much under the direction of her daughter, Deidre, who manipulates situations and management". The Doctor felt his recommended treatment would not be implemented "while Deidre is driving things".
66Indeed, by May 2005, Mrs Lane's health was of such concern to Deidre that she took her mother to another doctor, Dr Janet Knox, a GP in Byron Bay who referred her to a neurologist Dr Boyce, who in turn referred her to Dr Fairfull-Smith, a geriatrician.
67Dr Knox obtained a history from Deidre of her mothers presenting problems as being a "progressive history of decreasing mobility, rigidity and "anxiety attacks" triggered by stressful events in which her limbs become flexed and rigid, she has difficulty breathing, stares into space and has been incoherent in speech". Dr Knox found a woman with "shuffling gait, blank face, positive glabellar tap, cogwheel rigidity, hyperreflexia and with a distended and tender abdomen". She suspected Parkinson's disease. (DTB p308).
68Dr Boyce said it was clear that she had some degree of dementia as she was disoriented in time and place, couldn't add and didn't know where she was. In a letter to Dr Fairfull-Smith he said he couldn't get a mini mental state, she had Parkinsonian gait, was totally disoriented in time and place and that he felt she had a Parkinsonian dementia. (DTB p310). Dr Fairfull-Smith found nothing to contradict what was obviously by then a fact of Mrs Lane's day to day existence.
69Perhaps more important is the record kept by Mrs Lane's GP which is revelatory not only of her decreasing health but also the impact the family dynamic was having on Mrs Lane. I am satisfied as a certainty that Mrs Lane's quality of life just prior to the 10 March 2007 was not good and getting worse, with substantial risk of deterioration from both physical illnesses, such as UTIs, and her undoubted dementing process. It is also clear that on the balance of probabilities Mrs Lane had reached a stage of her illness that meant Mr Lane and/or Deidre could not manage her appropriately in the home on any sort of long term basis.
The event of 10 March 2007 and subsequent treatment
70I have set out below what, in my view, is the relevant objective documentation of these events from the ambulance record, to the CMDH and LBH clinical notes in chronological order. These are the only contemporaneous written records of what occurred.
71Both Deidre and Leo Lane gave evidence as to the circumstances of Mrs Lane's collapse on 10 March 2007. Mr Lane is now aged 82 and Deirdre is aged 56. More importantly, this event occurred over five years ago and was obviously traumatic for all concerned. Whilst attempts have been made to define with some precision what actually occurred, in my view that is both un-necessary and likely to be inaccurate. Not un-naturally, no one present made any notes of what had occurred. However the ambulance arrived quickly and the paramedics made comprehensive notes of their observations and what they were told by who was there. In my view the ambulance report is likely to provide the most accurate account of the situation that pertained on the day, as opposed to how it may now be remembered or re-constructed by the witnesses.
72The Ambulance Report notes as follows:- seizure → post ictal. Altered level of consciousness p/t 76 year old woman "choking not breathing" O/A PT. Supine with legs flexed. Obstructed airway, laboured respiration, trismus present. Small amount of bloody mucus nostrils and mouth GCS-5. family→ vague with rlx→ ? is/ is not epileptic?? Not on meds? Has had "seizure" before. Apparently had a drink of H2O and a pill→"choked" ? then "fitted" OBS as below both eyes rolled backwards en route to hospital→ pupils equal and reacting to light but sluggish. PT. Recent UTI [urinary tract infection]. PT. Recent fall out of bed (?within last week→ not seen by LMO) incontinent of large amount of urine xl.
73In the following records of what appears in the clinical notes of the CDMH and LBH, the reference to a page number refers to the relevant page in the tender bundle together with the date of the note and, where indicated, the time. I have chosen to move through the notes in this way as again, in my view, whilst not perfect or complete, they are likely to provide a more accurate record of Mrs Lane's treatment than the evidence of both plaintiffs who, for a number of reasons, would not be objectively regarded as being particularly reliable or accurate witnesses. I have also emboldened parts of the clinical notes that reflect instructions from the family as to Mrs Lane's treatment, because one of the complaints, by both plaintiffs, is to the effect that their wishes were neither respected nor acted upon by the hospitals.
74Additionally the plaintiffs have in their evidence and cross examination of the many witnesses, sought to give evidence of and obtain concessions as to negligent conduct on the part of the hospitals. Such concessions have not been forthcoming by any of the treating health professionals nor from the plaintiffs father who had nothing but praise for the way the health system looked after Mrs Lane at this difficult time.
75I have not attempted to transliterate every word in the clinical notes but those that I have regarded as relevant or to which I have been directed by the parties. The notes are handwritten by many different people, some obviously in haste and using various forms of medical shorthand. Some of the words used I cannot decipher and are acknowledged as such. I doubt they have any impact on the substance of the situation.
76The notes have been criticised for being inaccurate and incomplete and not a true record of what occurred to Mrs Lane. I would accept that a note has not been made of everything that occurred but I would not expect that to have been the case in practice. The purpose of clinical notes in a hospital setting is to provide a record of the treatment administered to a patient and other factors that are thought relevant for those professionals involved in the patient's care. They are not and never could be a complete transcript of events nor should that be a reasonable expectation. These notes are no different to the many hundreds of such records I have seen as a judge and as a practitioner. Indeed they are in my view more fulsome than most, which is perhaps a reflection of the problems faced by the medical staff caused by the poor family situation about the appropriate treatment for Mrs Lane.
77Mr Leo Lane, was at all times Mrs Lane's next of kin and the only person, apart from herself, who had the legal right to determine her treatment options. He was also her guardian. Whether or not Deidre was her mother's "prime carer" is not material to that situation. It might only become relevant if it could be established that Mr Lane was himself somehow incapacitated from making appropriate decisions and there is absolutely no evidence of that. Indeed Mr Lane impressed as a very intelligent and compassionate man, despite having to re-live what was undoubtedly a tragic end to the long and loving relationship he had with Helen prior to her death.
78On 11 May 2012 Mr Lane, in the midst of lengthy cross examination by his daughter Elizabeth, said rather emotionally at TP 78 :- I just don't think this is relevant really because we're here to talk about your mother's stay in the hospital, the Base, and then at Casino and whether - I take it that you're claiming that she didn't receive correct medical assistance, and I'm saying she did, and I'm also prepared to sit here and say that the treatment she received from the Base and Casino was over - well, it wouldn't - I would say normal, but over and above what we would have expected. (emphasised) If you remember, the first night she was in that four bed ward and it was a terrible night for everyone. She came into that room that was specially set up, cleared of whatever it was used for before. She had that room with the privacy. It was adjacent to the nurses' station. We had the little balcony out on the side where we could walk out, you know, and it was just so good, and you and Deirdre were able to stay in that room of a night with you mother. We came to Casino. One of the Good Sisters volunteered or asked could she travel in the ambulance with us, which she did and settled Helen in in Casino, and there again they had the private room and you had your section adjacent. I find this upsetting, as you can understand, and everyone in the room will understand that I accepted what was done gratefully, what was done, and I accepted the result, the passing - your mother's passing. You were with me that afternoon. Sorry, your Honour. You were with me that afternoon and your brothers, siblings, were there too
Q. Do you - when
A. and I just said to her, "Look, you can go now. We're right. We'll be okay," and she just slipped away. You know, what do you want, Elizabeth?
79At TP 91 Mr Lane said:- I think what we need - your Honour needs to establish is, and I thought we'd covered it quite comprehensively, that the care that Helen received from both the Casino Hospital, the Base Hospital thing and the Casino Hospital, was appropriate. That's a lame sort of word, but another one dedicated, caring, and which was just more than acceptable to me and, as I thought, Helen's immediate family.
80At TP 116-117 the following dialogue took place between Mr Lane and Deidre:-
Q. What was different about mum in the hospital and mum at home?
A. Well, the difference was the seizure, wasn't it, basically. She wasn't - Deirdre, this is, I think, perhaps a little difference we have in the hospital that you tended to think, and perhaps Elizabeth did, but you to a greater extent, was that if we could get her back under the red frangipani tree that, you know, she would be back to normal; normal meaning as she was on that Friday afternoon and I knew in my heart, and I knew realistically that that just wasn't going to occur, and I didn't want the trauma, that terrible word again, of putting her through all that to get her back home because it was my decision. Like his Honour has said, you know, maybe at times, you know, I sound like the defendant in the whole exercise here but the decisions I made, I will say, were 100% mine. You know, sometimes, you know, maybe I might think, "Well, I could have done something different," but I didn't, and I made that decision and I - you know, I live with it, not always
Q. I just
A. --happily, but I live with it.
Q. I'll just keep drawing you back
A. I wish you two would do the same.
81Questions as to professional culpability for negligent services are governed by the provisions of s5O of the Civil Liability Act 2002 (CLA) which provides as follows :-
(1) A person practising a profession ("a professional") does not incur a liability in negligence arising from the provision of a professional service if it is established that the professional acted in a manner that (at the time the service was provided) was widely accepted in Australia by peer professional opinion as competent professional practice.
(2) However, peer professional opinion cannot be relied on for the purposes of this section if the court considers that the opinion is irrational.
(3) The fact that there are differing peer professional opinions widely accepted in Australia concerning a matter does not prevent any one or more (or all) of those opinions being relied on for the purposes of this section.
(4) Peer professional opinion does not have to be universally accepted to be considered widely accepted.
THE CLINICAL NOTES
10 March 2007
82Casino Hospital (Page 100) 10/3/07 Breathing Rhythm irregular, Depth adequate, Quality laboured, Oxygen non-rebreather 15l , Mental State Assessment semi conscious (Page 101) 10/3/07 10.45. IVC inserted, bloods collected ECG attached. Nasoph airway insitu. IDC [in-dwelling catheter] inserted. 11.30 T/F + Lismore Base Hospital. Departure from A&E to LBH time : 11.45 hrs. (Page 102) Coma Scale total 10.45 9, 11.15 10.
83Lismore Base Hospital (Page 1), 10/3/07 Next of kin, Lane, Leo Thomas William, relationship husband, (Page 4), 10 March 2007,Referring letter from Dr Amey:- Thanks for seeing 76 yr Helen Lane, a lady who had an episode of going stiff then collapsing, family report frothing at the mouth and stopping breathing. She has dementia and is not verbally communicative, incontinent of urine and has very poor mobility and is quite deaf. She fell out of bed a few nights ago and hit the left side of her head. She's very difficult to assess .... Family advise recent UTI - has been on Abs and had a clear MSU since. Page 6, 10/3/07, 12.30 hr, Presentation History Ix & Tx of altered level of consciousness - on moving pt - she moans and groans? Pain - pt difficult to access *IDC insitu O/A . NB pt had a fall 2/7 ago - hit head (R eye swollen) Nil LOC Nil vomiting. Breathing Rhythm regular, Depth adequate, Quality easy, Oxygen non- rebreather IOL. Mental State Assessment semi - conscious.
84(Page 8), Sedation Score, Coma Scale 12.30 - total 11, 14.45 - total 11, 16.45 - total 11, 19.23 - total 11.
85(Page 9), Progress Notes 19.15 IV Flagyl commenced. 19.55 Flagyl ceased at relatives request, 2010 analgesics offered and refused at present.
86(Page 10), Emergency Department Clinical Record, TRIAGE date 10/3/07 time 12:29. Doctor C Imhoff:- History of Presenting Illness gradual generalised deterioration past 6/12. 2/52 ago lower UTI / augmentin / msl past week nad, 2° profound deafness, incomprehensible speech, increasing dementia. After breakfast this am, sudden onset became stiff in chair falling out of commode / LOC, became stiff / no auditory indecipherable . (Page 11), - Associated cessation of breathing/turned blue - Involuntary passing of urine / blood from mouth - Resps restarted after 2 breaths from daughter (started CPR) - frothing at mouth - LOC - ? S-10mm - remained ↓LOC - fall out of bed 4-5/7 ago with minor injury to head / no LOC - - Needs assistance with all ADL's - Eyes open to voice - Attempts to obey commands - Incomprehensible speech (normal for her) - pupils 7mm - (?) reactive - Recognising husband - hyperalgesic/allodynia generally - Stiff ++ - Neck in extension arms/legs in flexion.
87NB:- Pages 12,13 &14 appear to be out of order.
88(Page 15), All limbs held in flexion - forced extension seems to elicit pain , rigidity. Neck held stiffly on extension -? photophobia - seems to have pain with any interaction. Impression - generalised tonic seizure -?infection -? Subdural. (Page 16), Impression: vascular dementia→ ? undecipherable CVA/ seizure. Discussed further with husband / relatives / Not for CPR [Cardio Pulmonary Resuscitation]. Reviewed by Dr Coupe - admit MED - NBM [nil by mouth] till speech pathology R/V - S/c morphine for agitation - remove IDC.
89(Page 16), 10/3/07 21.45, Husband expressed wishes that the IDC stay in situ, the same patent and draining
90(Page 13), 10/3/07 Dr Coupe:- family spoke to at length by SD Staff , myself. Given poor quality of life premorbidly and progressive dementia comfort measures vs active measures discussed with family, family happy to provide all comfort measures possible, however to avoid any aggressive measures. (Page 14), Imp: advanced dementia, premorbid poor quality of life, comfort measures - IDC out pls (family wishes) - NBM until r/v (family happy with this) - analgesic as charted, single room if possible - I/V AntiBiotic's as charted - slow IVF - notify ASAP of any further pain or comfort issues arise - admit ↓ Dr Rankin (family will decide tomorrow the possibility of transfer to either St Vincent's or Casino).
91Discussion:-Before moving on to the next day, the plaintiffs made considerable criticism of the LBH for their failure to undertake a number of tests on 10 March to try and elicit exactly what had happened to Mrs Lane. In fact the hospital arranged a CT scan and commenced her on antibiotics in case of infection. This was stopped at the family's request and ceased when the patient's bloods came back from pathology and were clear of infection. The difficulty faced by LBH in dealing with Mrs Lane's family generally is illustrated by the instructions recorded on 10 March that on the one hand at 21.45 Mr Lane wanted the IDC to remain but at another time, the family's wishes were that it be removed. Then at 06.55 on 11 March a nursing note records that the family want the IDC left in!
92I do not accept that any of the admitting doctors failed to obtain an adequate pre-morbid history and I do not accept that pre-morbidly Mrs Lane was substantially any different to how she was observed on admission except, of course, for the fact that she was now not alert or able to communicate and thus unable to give a logical history. It is highly improbable that even if conscious, she would have been able to give such a history.
93The plaintiffs attempted, through Deidre, to retrospectively determine exactly what caused their mothers incident on 10 March at home. Questions were directed as to hypoxic brain damage being dependant on how long she may not have been breathing before CPR was commenced. Questions were directed to any brain trauma caused by hitting her head. It seems the purport of this line of cross examination was to argue that if the proper cause had been determined, she would have been treated differently and perhaps recovered. At page 4 and thereafter of their submissions the plaintiffs argue that the hospital staff made incorrect diagnoses of "vascular dementia" and "stroke" but then baldly assert, without any support (other than Dr Coupe agreeing that epileptic seizures were fairly common in the community), that "Mrs Lane had an epileptic seizure on 10 March" [PS par26].
94Whatever illness of the brain Mrs Lane was suffering from, the fact is that she did not voluntarily recover to any degree despite being oxygenated continuously and despite her not apparently suffering from any supervening infection or illness. Whilst at different times she showed signs of improvement, those signs were not sustained for any length of time. In particular, she showed none of the signs of recovery that would have been expected from a short hypoxic incident, a mild epileptic seizure or a minor concussive head injury. Despite the plaintiffs' best efforts to establish the contrary, Mrs Lane's pre March 2007 health was, whilst not at an end of life stage, very poor and that inevitably affected any ability she may have had to recover from the hospitalizing incident.
95It is stated in Plaintiffs Submissions 1 Paragraph 23 (PS1Par23) that Mrs Lane was incorrectly diagnosed with a history of vascular dementia on 10 March by the LBH. With respect that is reading more into the clinical notes than is warranted. All the note says is "Impression: vascular dementia→ ? undecipherable CVA/ seizure". That is not a diagnosis and, in the circumstances prevailing, is not an unreasonable impression to have formed according to the experts.
96Much attention was focussed on Ms Rhodes evidence as to what she said to Elizabeth in 2009 about her mother having a "dense stroke". Ms Rhodes is a Social Worker who apart from being involved with the family situation surrounding Mrs Lane's admission to LBH, was not directly involved in her treatment. Whatever her recollection was two years after the event is not really relevant to what was happening at the time given the fact that she was not a doctor or medically trained person nor was she treating Mrs Lane.
97Dr Coupe saw Mrs Lane more frequently than any other doctor at LBH from admission to discharge. Apart from the oral history obtained from members of the family, Dr Coupe noted that Mrs Lane's generally wasted appearance, muscle tone and muscle wasting were indicative of someone suffering from long standing dementia. Dr Raftos found nothing in the notes to suggest that the observations of Dr Coupe were incorrect and he agreed that such signs were indicative of long standing dementia. Even Prof. Ehrlich agreed in evidence that the more physically incapacitated Mrs Lane was before her CVA, the less positive was her outlook for recovery.
98Section 5O of the CLA requires a plaintiff to prove that the defendant has acted in a way that is both not in accordance with "peer professional opinion" and is also "negligent" as that expression has been determined in Wyong Shire Council v Shirt. In the present case the only independent expert evidence of peer professional opinion is in the evidence and reports of Prof Ehrlich, Dr Obeid and Dr Raftos and to some extent, Dr Mellick (Ex 47). All the other medical evidence given in the trial comes from those actually involved and therefore would not normally be regarded as independent.
99However it is not enough for the plaintiffs to simply establish that a particular aspect of Mrs Lane's treatment could have been handled differently. They need to establish that she should not have been treated as she was and that the treatment she in fact received was negligent. The more complex a treatment situation and the more varied the factors impinging on appropriate treatment, the more difficult it becomes to establish that a particular treatment or treatments was or were outside peer professional opinion and negligent as per s5O CLA.
100It is also the case that in a triage system that pertains to most urgent admissions, the hospital professionals have to make a number of choices some of which may not be in the patient's immediate best interests. By that I mean the resources available are necessarily limited and have to be applied effectively and efficiently as best can be done having regard to a wide ranging set of circumstances only some of which may relate directly to the patient. We have heard in the present case, for example, that the speech pathologist at LBH had to potentially respond to all the hospital patients requiring her services and she was not on duty seven days a week and 24 hours a day. The fact that a speech pathologist or radiologist or specialist doctor is not immediately available to look at a patient is not evidence of professional neglect.
101Where a patient is admitted unconscious, the hospital has an obligation to try and assess the reason for that fact, institute appropriate treatment and consult with the next of kin as to any treatment decision that needs to be consequentially made.
102The plaintiffs made much reference to a document (Ex 1) entitled End of Life Care and Decision Making Guidelines (ELCDMG), a document prepared by the NSW Health Department. The plaintiffs relied on this document as somehow providing a checklist of conduct which, if the defendant did not follow somehow established evidence of negligence on its part. There is a diagrammatic representation on page 7 of the document as to the processes involved. It was put to a number of persons that no such diagram appeared anywhere in the hospital records, as if that absence was indicative of a breach of the duty of care. Clearly such a belief is misguided, as is the belief that this document is a be all and end all of the defendant's responsibilities. At PS1 Par15 it is stated that Ms Deidre Lane believed if the ELCDMG had been adhered to her mother would not have died. However the plaintiffs have failed to establish any connection between their mother's treatment and anything relevant in the ELCDMG.
103The ELCDMG document is a guideline more geared to situations where persons enter hospital suffering from some life threatening injury or disease which results in considering the best way to help that person once it is recognised that medical treatment will not result in any recovery. Mrs Lane's situation was one that is common in the elderly, especially where there has been a pre-existing dementing process. That there may be a difference of opinion as to how such patients are treated as well as the fact that one course is taken rather than another, is not of itself evidence of negligence. The fact is that this is difficult point of time for any family. The medical process is clouded by religious and ethical issues which are usually not relevant to determining what is appropriate professional treatment in accordance with civil legal obligations.
104Having regard to these guidelines, I am not persuaded that any conduct of the hospital fell outside them. As Mr Sergi points out in his submissions from Par 113 to Par 128, the plaintiffs have not established that any relevant part of the ELCDMG has been offended against. Indeed the document makes reference to there being no right to treatments of no or negligible benefit or which are, in the circumstances, unreasonable (cf P2 Ex 1 & P9 @ Par 6.3).
105What is particularly apposite to this case is at 7.4 on P 13 where it is said that "use of artificial hydration and nutrition is an intervention with its own possible burdens and discomforts, for example, those related to having tubes in situ or regularly replaced. Withdrawal of artificial hydration and nutrition, like the withdrawal of other medical intervention, can be seen as a treatment limitation decision that may be made in accordance with these guidelines".
106The plaintiffs were asked on many occasions to point out a particular part of the guideline they say had not been followed. Apart from the example referred to above, they were unable to do so.
107In their submissions PS1 par 161 the plaintiffs say that it wasn't until 19 March that it was first noted "no intervention". Whilst that may have been the first time those particular words were used, it was clear from admission that a family directive was "Not for CPR". In other words if Mrs Lane stopped breathing or she went into cardiac arrest, the hospital was not to undertake active measures to get her breathing or her heart operating - she was to be allowed to die. That situation did not, in effect, change at any stage during her admission to LBH or CDMH.
11 March 2007
108(Page 17), 11/3/07 06.55, 2.5ml morphine, family want IDC left in.
10911/3/07 Dr Seneviratne: poor quality of life (Daughters are looking after feeding and washing Respiratory arrest yesterday according to daughter - no breathing <5 mts. Daughter did mouth to mouth respiration. (Page 18), Response not rational. Same management as instructed (ie. by the registrar).
110(Page 19), 11/3/07 Dr Coupe (MD), minimal improvement clinically - will notify Dr Boyce and Dr Fairfull-Smith that pt is in hospital.
111Discussion:- The plaintiffs were critical that Mrs Lanes previous treating doctors had not been called in by the hospital. The above note is a clear indication that these doctors were to be notified by Dr Coupe. However the situation was that neither of the nominated doctors had seen Mrs Lane for well over a year - since mid 2005. It is doubtful that their intervention would have made any difference nor has it been established that whatever was done or not done in that regard, somehow constituted improper professional treatment of Mrs Lane leading to her death. There is nothing to suggest to me that the LBH did not make themselves aware of all that was necessary of her prior history in order for the proper treatment of Mrs Lane.
112(Page 20), 11/3/07, 15.00, IDC bag changed, adequate amount dark urine drained. Analgesia given as charted to ↓ respiratory rate and effort and for pain on movement. O2 via Hudson mask,
11311/3/07, 22.00, O2 therapy continues. Family in attendance and attentive to Helen's needs. Care carried out in consultation with family S/C morphine given with effect. Required suctioning x2.
114Discussion:- At PS1 par 166 it is stated that "Indeed if she did have pneumonia, the effect of the morphine contributing to Mrs Lane remaining bedbound, and on the Sunday 11th March 2007 having difficulty swallowing saliva in the evening, would have contributed to it." This is a statement made without any foundation either medical or factual and is in effect a lay opinion of the plaintiffs that is not supported by any acceptable medical evidence.
12 March 2007
11512/3/07, 03.10, IDC in situ. Morphine given for agitation. O2 in situ via Hudson mask. Family in attendance.
11612/3/07, 10.20, S/B Burrell/Coupe/Biscoe. Poor functional state. Deterioration esp last 3/12. sat - went stiff when swallowing tablets , stopped breathing a few mins. Imo: no change. Plan: cease ceftriaxone. Morphine and O2 as per family requests.
117(Page 21), 12/3/07, 12.30 Social Work:- pt's daughter Deirdre has been pt's primary carer @ home with support from pt's husband Leo & another daughter Elizabeth. Past history conflict within family re pt's dementia. Family now in agreement re comfort care. Both Deirdre & Elizabeth will continue to assist in care for pt and wish to alternate sleep over in pt's room.
11812/3/07, 14.50, IDC patent & draining, O2 via nasal, pt comfortable & largely unresponsive, cries out when being turned & position changes, settles quickly.
11921.15, reasonably settled, paracetamol given for pain, IV therapy continues. O2 via nasal prongs continues. Pt remains at lowered level of consciousness. Pt crying out when moved or touched.
13 March 2007
120(Page 22), 13/3/07, 07.00 Nursing: Pt very unsettled at beginning of the night. Seemed to have spasms+pain. Daughters would not let me give any morphine. Could talk her into giving her mother Valium I.V. for the spasms. Pt also very constipated → gave indecipherable lax with no success. Very hard stool. Gave pt, morphine S.C. early in the morning. Settled after that.
121Discussion:- The issue of the administration of morphine to Mrs Lane at different times whilst at LBH occupies a number of places in the clinical notes. The plaintiffs had the view that morphine should not be given to Mrs Lane because of their understanding that it tended to reduce respiration and was likely to have a deleterious effect on their mother's situation. The medical records as to the administration of morphine were examined in detail with attempts to reconcile other observations of Mrs Lane with the cessation or introduction of Morphine at different times.
122At PS par 97 it is submitted that:- "It is clear that any adverse or unwanted side effects Mrs Lane exhibited were going to be ignored. Her treating physician was prepared to continue to administer a drug which would cause her death (emphasised), rather than investigate the source of pain or agitation which could possibly have been caused by the very actions of medical staff inserting a urinary catheter and continuing for it to remain "insitu".". The evidence, however, fails to establish that the small dosages of morphine given subcutaneously would have led to Mrs Lanes death. Further the argument made is illogical. I would expect the hospital to continue to treat pain until the cause is known and alleviated.
123Dr Obeid had much to say in his reports about the use of morphine in Mrs Lane's case. In his first report commencing at 3.10 he says amongst other things:-
124"I am not aware of any adverse reactions to morphine experienced by Mrs Lane. There is no evidence in the medical records that morphine was in any way causally linked with the development of pneumonia. In common careful usage, morphine does not cause pneumonia. The only way in which it could do so would be if it were to be used in excessive or large doses and in a careless manner. Even then, in order to cause pneumonia, it would need to either cause significant respiratory depression first (which then may or may not lead to the development of hypostatic pneumonia) or cause reduced consciousness (which then may or may not lead to aspiration pneumonia).
125The medication charts you have provided to me document what I would describe as minimal use of morphine. The doses given were as follows:
10/03/2007: one dose of 2.5 mg subcutaneously
11/3/2007: five doses of 2.5 mg subcutaneously
12/3/2007: two doses of 2.5 mg subcutaneously
13/3/2007: one dose of 2.0 mg and one dose of 1 mg subcutaneously
14/3/2007: one dose of 1 mg subcutaneously
15/3/2007: one dose of 2.5 mg subcutaneously
126These doses are all in keeping with standard practice and in no way represent excessive doses likely to produce respiratory depression in most patients. The observation charts recorded at Lismore Base Hospital show no evidence of respiratory depression. Mrs Lane's respiratory rate was at all times greater than 20 per minute and with supplemental oxygen, hypoxia (Sa02 of less than 90%) was avoided. There is absolutely no evidence that morphine caused Mrs Lane any harm at all, let alone pneumonia. It is also relevant to note that Mrs Lane appeared to be in pain and was requiring such analgesia. The use of morphine was thus clinically indicated. Morphine, in the standard low doses used in the management of Mrs Lane, does not impair communication ability. There is no evidence morphine had any adverse impact on Mrs Lane's well-being. Rather, it is more likely that the family's requests to withhold morphine may have impaired Mrs Lane's well-being in terms of pain control."
127In his second report he was asked to comment on Prof Ehrlich's assertions in regard to the hospitals morphine use as being "very odd indeed". Dr Obeid said:-
128"As I pointed out in my original report, Mrs Lane received very small doses of morphine. A total of only 26.5 mg was given over 6 days. This is a very small dose by any standard. Professor Ehrlich appears to have arrived at his conclusion that the use of morphine was "odd" on the basis that "there is no evidence she had pain and morphine is essentially an analgesic. Furthermore, morphine is a ... respiratory depressant and this is the opposite of what is required in a person who has bronchopneumonia". I disagree that there was "no evidence she had pain". On a number of occasions the medical records point to pain suffered by Mrs Lane. For example:
"continued to moan and groan" (RN report 10/03/2007 2210 hours)
Had "pain on movement" (RN report 11/03/2007, 1500 hours)
Was "crying out when touched" (RN report 12/03/2007, 2115 hours)
"Seemed to be in pain" (RN report 14/03/2007, 0645 hours)
129I note that on one occasion, Mrs Lane's family requested that morphine be given for pain relief prior to the administration of an enema (see entry 13/03/2007 1525 hours). Hence, even Mrs Lane's family members noted that pain was present, at least on one occasion.
130Whilst I agree with Professor Ehrlich that "morphine is essentially an analgesic", it is also important to note that morphine is used for the control of many other symptoms in the palliative care setting. Such symptoms include cough, dyspnoea, agitation, diarrhoea and pulmonary oedema. It is true that morphine has a "respiratory depressant" effect, but this is at much larger doses than administered to Mrs Lane. At no stage was Mrs Lane's respiratory rate below 20 breaths per minute. There is therefore little evidence to support the claim that she suffered respiratory depression as a result of the very small doses of morphine she received.
131It is important to understand the principle of double effect when discussing the use of morphine and its potential side-effects. It is common in the palliative stages of an illness for patients to suffer from a distressing symptom that is amenable to therapy with morphine (or other drugs). If use of such medications is in keeping with appropriate clinical care in standard therapeutic doses and an adverse outcome occurs, the principle of double effect is observed. There is no intention to cause an adverse outcome and the appropriate dose of medication is used. Relief of the symptom is expected and usually occurs. Any adverse outcome is unintended and does not constitute an act of harm on the part of the prescribes."
132I am satisfied that any morphine given to Mrs Lane was at such a low dosage as to have been highly unlikely to have had any deleterious effect on her overall situation. The maximum dosage ever prescribed was 5mg subcutaneously over a number of hours which is a very low dose and was, according to the medical evidence, unlikely to have caused any deterioration in her condition despite Mrs Lane's size and weight. The purpose of giving morphine is both for pain relief and patient comfort. This was not the situation one sees in terminally ill persons in great pain who are prescribed increasingly larger doses of morphine to a stage that the morphine begins to affect the ability of other organs of the body to function appropriately. In fact there is no expert evidence to suggest that the prescription and amount given of morphine to Mrs Lane was either inappropriate, incorrect, negligent or hastened her ultimate demise
13313/3/07, 10.20, S/B Coupe/ Biscoe:- , family present, pt looks comfortable, cries out sometimes, constipation. Plan, subcut fluids, enema, analgesia, if family decide to remove IDC, then it can be removed, then monitor UO [urinary output].
13413/3/07, 15.25, settled when quiet, but does respond to painful stimuli & position change. Enema given as charted, minimal result, continues O2 via , family members requested some pain relief prior to enema & 2mg decided by family. Result to enema minimal at this time. Daughters have requested RMO to attend & R/V pt's condition. RMO paged & he will attend ASAP.
13513/3/07, 16.20, paged Dr Coupe - re family wishes pt to have Valium before examination - but it is only recorded for nocte use.
13613/3/07, 17.20, Dr Coupe administered a fleet enema. Pt's relatives have refused to have their mother receive S/C morphine. Doctor agreed that it is available PRN if required. So pt repositioned without analgesia.
13713/3/07, 21.30, have given pt IV 0.5mg Valium as relatives have still refused any offer analgesia. Pt has opened her bowels well,. Pt's daughters wished to do her mouth care. Pt is very sensitive to touch, especially her lower limbs. Pt has now started to pull on IDC tubing - tubing secured against leg. There were some social - AVO issues with one of the relatives. Is it possible to have a s/worker review?
14 March 2007
138Page 24, 14/3/07, 06.45, pt seemed to be in pain. Made daughters aware of but they would not let me give more than 1mg of morphine SC. It didn't seem to be settled after that, but daughters told me she'd always be like that and they're sure that she's not in pain. Explained them that she looks very uncomfortable to me and that I'd like to give her morphine before PAC (Pressure Area Care), daughters decided rather not to have PAC. Explained them, how important it is and made them aware of pressure areas and how quick they occur. Daughters still preferred to leave her in the same position to keep her comfortable and not give any morphine. They also asked if IDC could come out because this might be the reason for her pain. I told then I'd like to leave this decision up to morning staff. And I highly recommended meeting with relatives medical team + nursing staff to talk about these issues.
13914/3/07, 1000hrs, daughters refused observatory interventions therefore no obs taken.
14014/3/07, 1005, S/B Burrell/Biscoe/Coupe, family present nil improvement in overall condition, pt looks in pain. 1mg morphine inadequate. Low grade fever. Sat 93% 3L. stable. Daughters discussed desire for home palliative care. Husband (next of kin) does not want this - would prefer pt to stay in hospital. Son agrees. Adequate analgesia discussed/family. Page 25, (cont) plan 1. remove IDC 2. reduce IV fluids to 30 ml/h 3. chart regular morphine 5mg q4h. For no other analgesia.
14114/3/07, 13.05 Social Worker:- met pt's husband, 2 sons & one daughter. D/c concerns re care & conflict issues re daughters overriding father's wishes re mother's care. Daughter (Elizabeth) advised concern morphine was affecting mother's respirations & both daughters wanting to take pt home - feel she has not been adequately assessed and that the morphine was interfering with assessment - Elizabeth advised she & her sister believe their mother has woken up since ceasing morphine. The older sister Deirdre wants the IDC removed - advised her mother has thrush and the IDC is irritating mother - she needs to be cleaned up and needs a douche. Pt's husband & brothers have agreed to no morphine but feel the daughters are preventing their mother from having a comfortable and peaceful death. They do not wish pt to be taken home by the daughters (SW cont page 26), in addition Elizabeth has an AVO against her sister Deirdre and SW has spoken to Elizabeth about same. Nursing staff are aware possible security issue. Daughters have requested a speech path R/V as think pt may be able to swallow as she is yawning. SW has made referral via phone to speech - not available today. SW did discuss pall care R/V this is to look @ alternative pain relief & to hopefully assist daughters perception of situation SW will continue to support. SW has concerns re pt's daughter Deirdre - who very involved in mother's care, talk fast, and appears tired - teary @ times SW PLAN, to continue support to family. Have spoken to day nursing supervision. Have made referral to speech. Liaison with med team. Have spoken to pt's husband re guardianship & his role as decision maker.
142Discussion:- The social workers note is revelatory of the conflict that was escalating among the family as to Mrs Lane's treatment. The situation regarding the IDC and its removal or otherwise is, to say the least, subject to confusing changes of mind by the family or individual members of it. However there is no expert evidence to suggest that the catheter situation caused any deterioration in Mrs Lane's condition or was an inappropriate form of treatment. I have no doubt that having an IDC may be uncomfortable and even more so if there is the presence of thrush, but that has to be counterbalanced against the serious problems associated with urinary retention and the wearing of uncomfortable wet sanitary pads and the like. Mrs Lane was not able to indicate what she felt and attempts to guess at her feelings are somewhat meaningless in determining whether or not appropriate professional practice was followed.
143Page 27, 14/3/07, 13.30 Medical Burrell:- the plan at present for Mrs Lane is to continue with the catheter remaining in. No regular morphine to be given but if Mr Lane requests that she be given morphine then this is to happen. If either Deirdre or Elizabeth interfere with this the medical team need to be notified immediately. It is clear to me that Deirdre is not behaving in a rational manner with regard to her mother's impending death.
14414/3/07, 15.30, Nursing: family in attendance. Assisted family to bed sponge and change. Noticed that pt has a lumpy discharge around vaginal/groin area. One of pt's daughters insists on doing most of pts personal care - canesten cream applied to pts area of discharge by daughter at her insistence. Family generally challenge to deal with and difficult to establish and maintain pt care whilst daughters in attendance. Daughters refusing morphine for pain management.
14514.3/07, 16.00, Medical Burrell:- patient comfortable & does not appear to be in pain. The plan for this evening/overnight is that Mr Lane (continued on Page 28) will make clear to the staff before he leaves what he wishes in regard to his wife's care. This is to be documented & followed even if his daughters try to countermand his wishes.
146Page 28, 14/3/07, 15.00, Social Worker:- R/V of pt & family this afternoon. Daughter Elizabeth v upset re pt being administered morphine. Will R/V in am.
14714/3/07, 16.50, Nursing: repositioning of pt is necessary for PAC, spoken to pt's husband (Leo) and he wishes to comply with Dr Burrell's recommendation but the daughter wished no morphine prior to repositioning. Leo has therefore agreed to allow 2.5mg of morphine s/c. Observations registered before administration and then again an hour later to indicate to his daughter that there are very small obs changes.
14814/3/07, 20.00, ADD: asked to reposition pt, and wished to administer Valium before hand. Daughter said she wished to ask her father first, who is due back shortly. Also was going to agree IV Panadol but again was asked not to unless she has a temperature, seems comfortable at (continued page 29) this time. Daughter wishes to do the mouth care and replace low dentures. Have appeased to their wishes, waiting for Leo to arrive.
149Page 29, 14/3/07/ 22.10, Nursing: Husband has recommended morphine as to Dr Burrell's script. The daughters have still large issues about giving any medication and the conversations in the room because very loud - the nurse in charge took all the family out for further discussion. Pt repositioned in half the time with the wards man and in my opinion, the pt did not 'cry out' as much as previous repositioning / also explained this to the husband and asked him to discuss the repositioning with his daughter. Family wish to discuss care with team in the morning.
15 March 2007
150Page 30, 15/3/07 05.25, Elizabeth, Deirdre and son present. Quizzed by Deirdre as to whether I would be giving Helen morphine overnight. I explained that if Helen looked in any distress that I would indeed administer morphine. Mr Lane consulted by phone by son and requested that only 1mg of morphine be given if absolutely necessary @ my discretion. 2/24 PAC and repositioning attended. Helen cries out initially when repositioned but settled within 2 minutes to a sound sleep no morphine given yet. Son and Elizabeth stayed in room overnight, both managing to get some sleep.
15115/3/07, 09.10, family wish further discussion with team.
15209.40, Pt given sponge bath in bed - repositioned to be on her back + according to daughters request. Mouth and hair care given by daughter. Family wished not to administer analgesia, but to do so if pt in distress. IDC in situ. Family would like to have the pain /palliative team to R/V.
15315/3/07, 12.00, S/B Coupe/Biscoe, patient seems comfortable (continued on page 31) fleet enema charted. IDC out. Speech path will r/v today. Morphine 2.5-5mg PRN q4h.
154Page 31, 15/3/07, 12.30, Speech Pathologist assessment:- pt referred by SW to assess swallow per family request. Noted complex family situation. Pt with Hx of Parkinsons Dx, dementia and seizure. Swallowing, pt LIB & difficult to assess alertness, pt making nil attempts at eye contact, groaning observed only, pt unable to perform any movements for an oral musculature assessment despite tactile stimulation, nil spontaneous swallows observed. PT IS NOT SUITABLE FOR A SWALLOWING ASSESSMENT TODAY DUE TO *POOR FOLLOWING DIRECTIONS *POOR ALERTNESS AND * NIL SWALLOWING SKILLS OBSERVED. Above explained to pts family. Risk of feeding pt is very high for aspiration (continued page 32) of any consistency. Recommend: (1) Keep NBM, (2) Maintain regular oral care. Strict instructions given to family to ensure nil aspiration. (3) Monitor temps & chest. (4) Will monitor. (Kostal) SP PATH 2157.
155Discussion:- The issue of a speech pathology review is of substantial concern to the plaintiffs who maintain that both reviews at LBH and CDMH were inadequate and did not take full account of Mrs Lane's inability to hear and her difficulties without glasses. Both speech pathologists gave evidence over the 17th and 18th of May. The hospitals had directed Nil By Mouth (NBM) until a speech pathologist assessment. Ms Kostal saw Mrs Lane on 15 March ie four to five days after admission. I do not accept that Ms Kostal was negligent in her assessment of Mrs Lane or that she did not take into account her known medical history. Until it is known that a patient has the capacity to swallow spontaneously, it would be negligent for the hospital give any oral intake because of the severe risk of the patient choking or aspirating and ending up with pneumonia.
156The plaintiffs argue (PS par 119) that they waited and waited for the recognition that their mother was able to eat but this was never forthcoming. However there is no evidence that Mrs Lane was in fact able to obtain enough nutrition orally to keep her alive. Occasional spoons of yoghurt or other liquid food do not indicate a capacity to be able to eat. At best it indicates a capacity to swallow something at that particular time. The plaintiffs had the opportunity, although contrary to medical and nursing advice, to provide to Mrs Lane with whatever she was able to intake by mouth if they wished to do that. There is no evidence from them that Mrs Lane ever had a meaningful capacity to be able to accept any such nourishment, even with the assistance of her daughters.
157It is argued that Mrs Lane was subjected to treatment or lack thereof that discriminated against her rights as a patient. The plaintiffs submissions, although fulsome, are at times difficult to comprehend and respond to. They rely on many isolated events that they say in effect if put together paint a different picture of Mrs Lane than was the case suggested in the clinical notes. For example a Sister Moran made an affidavit dated 9 May 2012 (Ex 5) that was tendered to help establish Mrs Lane's level of consciousness. In it Sr. Moran says that on 17 March 2007 (St Patrick's Day), over a half hour period, Irish songs were sung and Mrs Lane "responded with her beautiful smile. She was very happy that we were there and even though she tried to communicate she was unable to speak. She gazed directly into our eyes smiling. She certainly understood what we were singing, because she tried to join in with us... she certainly wasn't unconscious or semi conscious."
158Of course much of what is stated above is not admissible and Sister Moran didn't give evidence. I don't know how Mrs Lane tried to "communicate" or what made Sister Moran think she understood what was being sung. But even if this was a verifiable event, in what way does it change anything? A smile does not translate into cogent thought processes. It can simply be a spontaneous jolt of memory of some happy event. I do note though that despite these favourable conditions at that time, Mrs Lane could not communicate in any meaningful way. She was not "awake and alert".
159At TP 68 of 11 May, Mr Lane, in cross examination by Elizabeth, said this about St Patrick's Day:- "But, you know, with a little faith we did believe, maybe, just maybe, but the medical prognosis at that stage was that it wasn't going to happen and that we would do what we could; "we" meaning family and the medical staff, to make her life at least as comfortable as possible, and you'll recall that that occurred and you will recall, you and Deirdre, St Patrick's Day, you know, which summed up her whole being. She was almost the person we knew on St Patrick's Day." At this point Mr Lane broke down in the witness box.
160It is suggested that Mr Lane was saying in that evidence that Mrs Lane had recovered to the point of being then almost the person they had known from before. (PS Par 122). I do not accept that such is a proper or fair representation of what Mr Lane meant. The fact is that whatever occurred on that day was not sustained thereafter.
161I am not satisfied that the plaintiffs have established that anything done or not done by Ms Kostal or Ms Lucks as Speech Pathologists was otherwise than in accordance with accepted medical practice. Ms Lucks was the Speech Pathologist at CDMH and her examination of Mrs Lane appears later in these records. However expert opinion favours the conduct of the staff. This point in time ie 15 March, is important having regard to a number of assertions by the plaintiffs as to the lack of appropriate nutrition of their mother by anyone on the staff.
162Dr Obeid commented on the issue of feeding Mrs Lane in his reports. In the first report he said:- "Intravenous fluids were administered to Mrs Lane. In addition, a mutual decision (health care staff and family members) was reached to allow oral feeding as tolerated. It is incorrect therefore to say that the defendant "failed to provide any or proper nutrition". In situations where a patient has advanced dementia and is unable to take adequate food and fluids by mouth, the question of enteral tube feeding often arises. It is important to note that the scientific literature suggests that in this clinical situation, the use of enteral feeding tubes for nutrition has not been shown to prolong life, improve nutrition or improve the quality of life of patients with advanced dementia". (emphasised).
163In his second report, Dr Obeid went into the issue in more detail.
164"The complications of oral feeding when unsafe to do so are the development of aspiration pneumonia, acute hypoxia and choking. It appears that the continued feeding of Mrs Lane may have contributed to fever and hypoxia, but my opinion is that this would have occurred at some stage even if Mrs Lane's daughters had not fed her against advice.
165Use of a nasogastric tube has complications of tube misplacement (causing pneumothorax), nasal septal necrosis, ala nasi ulceration and aspiration pneumonia (due to reflux of feeds and continued aspiration on saliva). As outlined in my original report, studies have not revealed any benefit of nasogastric feeding in terms of survival, aspiration risk, nutritional status or quality of life for patients with advanced dementia.
166Use of PEG tube feeding has complications of anaesthetic risk, infection, peritonitis, haemorrhage and aspiration pneumonia (due to reflux of feeds and continued aspiration on saliva). As outlined in my original report, studies have not revealed any benefit of PEG tube feeding in terms of survival, aspiration risk, nutritional status or quality of life for patients with advanced dementia.
167The only other nutrition option I am aware of is total parenteral nutrition (TPN). This has numerous complications, particularly related to infection, haemorrhage, electrolyte disturbance and fluid overload. It is a highly specialised treatment, usually provided in the intensive care setting. It is indicated in patients whose gastrointestinal tract is unsuitable for enteral feeding, usually due to gastrointestinal disease. It was neither indicated nor appropriate in the care of Mrs Lane".
168"Parenteral" is defined in the Gould Medical Dictionary (4th Ed) as "Outside the intestine; not via the alimentary tract, as a subcutaneous, intravenous, intramuscular or intra-sternal injection.
169Although subjected to lengthy cross-examination, neither Dr Obeid or A/Professor Raftos moved away from the opinions expressed in their respective reports.
170In "Disputes & Dilemmas In Health Law" edited by Freckelton & Petersen (Federation Press 2006) a chapter is devoted to end of life decisions. This chapter was written By Prof Mendelson of Monash University Law faculty and Prof Ashby medical Director of the Centre for Palliative Care. Dealing with Medically Assisted Nutrition & Hydration they say:- Popular notions of death without MAN&H as being a cruel form of suffering in which the dying person "starves" to death, need to be dispelled through explanation of the normal process of dying, and the capacity of palliative care to adequately prevent any potential discomfort that may result from decreasing oral intake.
171A gradual reduction, and eventual cessation, of oral intake is a normal part of the dying process. Clinical experience shows no basis for supposing that patients receiving palliative care are experiencing symptoms of starvation and dehydration, which would be lessened or eliminated by the routine provision of MAN&H through a nasogastric or percutaneous gastrostomy tube, or by intravenous feeding. Poor appetite and lack of energy are intrinsic effects of the underlying condition, and cannot be overcome by treatment. Inevitably as the disease progresses and death approaches, patients show biochemical and clinical evidence of dehydration, and profound loss of weight, anorexia and lassitude. There is no evidence, however, that correction of dehydration in the terminal phase is beneficial. For example, although assisted nutrition earlier in the cancer journey may improve outcomes and life quality; this is not the case in the later stages.
172Consequently in palliative care units, all treatments which are not required for comfort are stopped when a person is dying. Food and drink as well as assistance with eating and drinking is always available to satisfy a patient's thirst and hunger, but MAN&H is not routinely used when oral intake ceases. MAN&H through subcutaneous fluid infusion, is only used for symptomatic thirst or hunger which cannot be adequately treated by other means.
173Clinical decisions to abate MAN&H for patients who have reached the final stages of life and have no hope of recovery are made every day in palliative care units, intensive care wards, in general wards of public and private hospitals, private residences and nursing homes. Clearly, however, abatement of artificial sustenance involves sensitive issues, with ethical, cultural, social and religious dimensions that have generated public and health professional concern in many countries over recent years.
174This article clearly supports the views of Dr Obeid stated above and is evidence of peer professional opinion about which I can see nothing controversial.
17515/3/07, 12.45, Biscoe/Coupe, have discussed with Elizabeth, Deirdre and husband Leo that morphine will be offered 4th hourly & given if felt appropriate, speech path input noted with thanks. Explanation given to daughters & husband about risk of aspiration. Family in agreement that IDC can come out. Daughters are happy to change pads & have explained that may go into urinary retention & need another IDC if that occurs.
17615/3/07, 12.50 Social Work 2329, SW R/V - have liaised /c Dr Laird re palliative care & called pall care. They will R/V pt @ 11 am tomorrow.
177Page 33, 15/3/07, 13.00, Coupe/Biscoe, discussion with husband Leo & sons John & Ralph. IDC will be removed if no UO by 8 hours, or pain, insert new IDC. This has been agreed to by husband.
17815/3/07, 13.15, contacted Dr Laird who is the primary physician in the absence of Dr Burrell . Concerns exist regarding pain management. As noted above, morphine will be offered regularly to patient if she is deemed to be showing signs of discomfort /pain. Difficulties arising with certain members of the family refusing administration of morphine & other members, including husband consenting to administration. Dr laird has agreed for me to notify the Director of Medical Services. Addit: D/W NM importance of providing continuity of nursing staff to assist in developing professional relationships with the family.
179Page 34, 15/3/07, 13.30, Nursing: have asked if I may reposition pt, but Elizabeth (daughter) asked if I could leave her for a while, due to her restful state. Seems comfortable I wish to remove IDC and give Fleet enema.
18015.00, ATD: the fleet enema has been given. IDC removed. Pt repositioned onto left side with the assistance of the daughters. Pt only seemed to be moving on leg movement.
18115/3/07, 16.40, Daughter reported to nursing staff that she had fed her mother 4 teaspoons of yoghurts and a 'few sips' of water. Explained to daughter that by doing this there is a high risk of aspiration as per speech pathologist review earlier today. Daughter said this is a 'risk we are willing to take because we have nothing to lose'. Daughters were told that if they are to (continued Page 35) given their mother anything more orally (although against medical advice) to inform nursing staff.
182Page 35, 15/3/07, SB Dr Laird, progress noted, Mrs Lane appears comfortable , relatives (daughter) happy = progress.
18315/3/07, 18.10, Nursing - daughters, they stated that they has repositioned pt, after being incontinent of faeces. Daughters were asked if pt has passed urine but they were unsure. Asked daughters to get nursing staff next time they changes pt's pad.
18415/3/07, 20.40 Pt's family attended. Pt incontinent of urine & faeces. Family refusing any pain relief for pt. Pt sitting up in (continued Page 36) bed, is alert & mumbling - unable to understand what pt is saying. Comfortable.
185Page 36, 15/307, 22.15 Nursing - called into pts room as family said pt was in pain. Pt groaning & grimacing - suggested to family that she has s/c morphine, family refused (including husband Leo). Suggested that IV paracetamol be given, same agreed to by family & currently in progress. Pt incontinent of urine.
18615/3/07, 22.30 Nursing: pt's husband Leo who is the "spokesman" of the family gives the following instructions: if pt is in pain longer than 5 mins and a massage of daughter doesn't help within these 5 mins, pt has to have 1mg of morphine S.C. if pain occurs before 04am. If pain occurs after 04am she is to have Panadol 1g i.v. consider Buscopan or Valium first please.
16 March 2007
18716/3/07, 07.45 Nursing; pt had a very settled night. Didn't require any pain relief. Has not voided overnight.
18816/3/07, 10.20 Nursing - pt sponged in bed with daughter in attendance. Patient was then turned on side - other daughter then came into room stated she wanted patient on back. I stated that as pt is now on side (continued page 37) perhaps we could leave her as is for a while - she stated "no" as Father was coming to give mass she wanted her on her back same attended. Incontinence pad was changed - same was not wet but daughter picked up pad a scratched it and sniffed it and said it was wet - explained to daughter the writing on the back of pad is normally smudged when the pt is wet so to nursing staff's knowledge pt has not passed urine overnight - s/c fluids remain in situ.
189Page 37, 16/3/07, 11.30 S/B Coupe/Biscoe, patient looks good, comfortable, has had a small amount of yoghurt & is tolerating so far, pall care in attendance,
19016/3/07, 12.30, Palliative Care - consult only, spoke with Elizabeth, Leo & Ralph. Deirdre stayed with her mother & has requested to speak with me next week. I explained the Palliative Care Services & asked her where he would like Helen cared for- Helen has had an ACAT (continued page 38) assessment for St Michaels & Leo would like her to be transferred if it is appropriate and a bed is available - he has said that he does not want her to come home.
191Discussion:- At TP108 of 11 May Mr Lane was asked by Deidre:- So why was not mum, if she was in the final stages of life and needed palliative care, not sent to the specialised palliative care unit? He replied:- She wasn't in final stages of life in that regard where she would have been, say, admitted to St Vincent's. It was considered, and this - the experts - shall we say the lady from St Vincent's, the St Joseph's I think we call it, made the assessment that she would be much better in a situation in Casino, and if you recall there again the staff at Casino made considerable effort, whatever, care to provide that palliative care in terms of providing accommodation, if that's the word, for you and Elizabeth to stay with your mother". This exchange is used by the plaintiffs to support an assertion that it was clear the palliative care nurse did not consider Mrs Lane to be dying. (PS par 147). Even if that was a supportable proposition, which it is not, it is an isolated incident in a situation where the whole of what was occurring needs to be looked at not each individual event, as if each event proved what the patient's overall position was.
19216/3/07, 14.30, Discharge Planning - in contact with St Michaels N/H they take respite cases but there are no available beds today. Helen is on their books for placement.
19316/3/07, 15.40 Nursing- pt has not voided - contacted Amber Biscoe, stated should have catheter. Explained that family would only have this as a last option and would she come and explain this to family. Attempted to reposition patient today - family requested we wait for Deirdre to come so waited for her and then pt repositioned - Deirdre also stated they have been giving pt small amounts of food by (indecipherable) her mouth. Offered pt pain relief via Leo her husband who refused same.
194Page 39,16/3/07, 16.30, Biscoe/Coupe, discussed Urinary Output with family. Unclear, but seems very poor today. Explained inadequate. Explained retention → distress. Patient appeared comfortable. ? Mild abdo tenderness - Advised only option is re insert catheter. Family agreed they will ask for this if patient becomes distressed.
19516/3/07, 22.10, Family in attendance and attending to cares turned x1 by nursing staff as requested. Sat on side off bed. Very small amount of very concentrated urine. IDC left out at this stage. Pt resting comfortably. Not required any analgesia. Family giving pt small amount of yoghurt + ice.
17 March 2007 (St Patrick's Day)
19617/3/07, 06.40 Nursing: settled night. Daughters were quite happy to leave her, if she's comfortable. Passed large amount of urine.
197Page 40, 17/3/07, 09.30, Nursing: repositioned pt into sitting undecipherable position - daughter wishes to give her some Sustagen - so I gave them thickened fluids from rehab. Explained about correct feeding and making sure pt has swallowed and not to give any oral fluids if pt not fairly alert. Analgesia was withheld by daughters request. Bed sponge given - pt voided well.
19817/3/07, 14.00, Add-tt: analgesia offered, but pt seems quiet settled after re positioning onto left side. IU S/C still in situ - have reduced to 30 mls as the abdomen seemed a little distended. Leo - husband has indicated that he only wishes pt to move to Casino - not home. NFR order needs to be updated.
19917/3/07, 22.00, pt distressed when position changes, voided, scant amount, sat up on one occasion so family could feed her.
18 March 2007
20018/3/07, 04.20, Nursing: pt settled, pt very wet.
20118/3/07, 14.00, sponged in bed, voided x2 cared for by relatives.
202Page 41, 18/3/07, 16.00, pt repositioned, and found that pts legs seem to be the most troubling spoke with Leo - husband - and he agreed to allow Panadol per rectum, as her daughter was wanting another enema.
20322.10, daughters wished to try more thickened fluids - to no avail. Leo is most concerned about taking her to Casino Hospital.
19 March 2007
20419/3/07, 06.50, Nursing on 1st round patient appeared "alert" enough to be listening to conversations - eye contact was direct and purposeful. I explained to her daughter that at the present moment I did not feel she was in a critical condition .... That I would not be popping my head in the door to "check on her" family happy for the mum to get a descent sleep. Voiding in to nappy +++ and pressure care was attended.
205Page 42, 19/3/07, 11.00, S/B Coupe/Burgess, family present. Pt sleeping family states pt comfortable appears so. Urine output good. Pt's condition grossly unchanged. Limited examination. Abdo distended. Pt groans when palpated. Daughters requesting "blood tests" will discuss at meeting. Leo (husband) wishing pt to go to "Casino if anywhere" - i.e. not St Michaels. Leo (in presence of son) stated desire for "no intervention whatsoever" including no CPR.
20619/3/07, 14.45, pt washed in bed, family in attendance.
THE STAFF AND FAMILY CONFERENCE
207Page 43, 19/3/07, 15.15, Family conference, Dr Paul Laird, Dr Nicholas Coupe, Jill (social worker), Theo (brother in law), Mary (sister), Leo (husband), Ralph (son), Deirdre (daughter primary career), Elizabeth (daughter), Judy (discharge planner), Kirsten (nun), Luke Burgess (pre-intern-scribe). Next of kin: Leo Lane (husband), medical issues - long term care at LBH, or other hospital inappropriate. Nursing home or home care more appropriate. - feeding, - investigations and interventions.
208Family agrees long term care @ LBH is not appropriate. Deirdre requesting St Vincent's Hospital in preference to Casino states this as pts wish. Family made aware that pt would not be transferred while unstable.
209Family made aware of bed shortage in LBH and that if her single room is required on clinical grounds for another patient, she may be moved to a 4 bed room, and that overnight stay would then be inappropriate (continued page 44) Leo believes that a private room at Casino Hospital is appropriate.
210Pt has now been 9/7 without food intake Dr Laird made family aware long-term SC fluids is inappropriate. 4 options: oral only with risk of aspiration; NG tube; PEG tube: or nil oral intake, nil SC/IV fluids. Pros and cons of each option discussed. Family aware that no feeding and no fluids void result in death in a matter of weeks.
211Ralph states that family home is not set up to accommodate pt in her present condition if she were for care at home.
212Family made aware that intervention ion the event of acute deterioration is inappropriate and they agree as such.
213Pt's current medical condition discussed. Pt has cerebral atrophy on CT Scan suggesting dementia, with presumed hypoxic brain injury 2° to seizure prior to presentation.
214Ralph describes pts condition and severe decline in self care to the point of total dependence over the last 10 months to the day of events leading to presentation. Family aware that pt is unlikely to return even in this limited capacity.
215Analgesia discussed as appropriate for comfort. Conflict within family regarding pts premorbid (continued page 45) functioning and quality of life. Deirdre believes QOL and level of functioning as higher then previously described. Leo agreed with description given by Ralph (on previous page). Deirdre expresses desire for pt to return home for care. Leo does not agree with this view, and does not wish for pt to be cared for at home at the present time. He wishes for pt to be at Casino Hospital (if not LBH) for a period, with care at home during final stages if appropriate.
216Leo states pt would not want artificial feeding, and he does not want feeding for patient.
217Leo wishes for pts t/f to Casino with continued SC fluids. Conflict with Deirdre over this issue.
218Deirdre wants clinical psychologist r/v of pt and is told in clear terms that this is inappropriate, and is not an option in pt's care.
219Deirdre wants to know "what are mummy's rights in this situation" and is told that Leo as pt's next of kin makes decisions regarding medical care, because pt cannot communicate. (Continued on page 46) Outcomes -t/f to Casino Hospital - pt not for NG or PEG feeding SC fluids to continue - pt is not for intervention if her condition worsens. Above points as directed by Leo Lane, pt's next of kin. End conference 17.10hours.
220[page 46]. 19/3/07, 22.00, Nursing: daughters Deirdre & Elizabeth present most of shift & quite demanding. Washed pt, gave PAC & when cleaning moth pt had gag reflex. Deirdre then assumed she could feed her mother & I strongly advised against same suggested further speech path R/V. Referral made to Ann Moehead to R/V pt. Incontinent of urine. Pt does not appear to be in any pain, I believe her verbalisations are more a reaction to her daughters.
221Discussion:- As can be seen from the above, the meeting on the 19 March was a crucial one in regard to the continued care of Mrs Lane. In my view this meeting fully complied with any requirements of the ELCDMG. It is clear that more intrusive methods of nutrition such as naso-gastric tube and PEG tube were discussed and abandoned as being inappropriate. Dr Laird discussed the long term effects of S/C fluids and attempted oral intakes. The ultimate decision rested with Mr Lane who decided to continue S/C fluids with a transfer to Casino and eventual return home in the final stages if that was possible. I do not accept that he did not fully understand what was happening or that he was mislead in any way at that meeting, as has been suggested in the plaintiffs submissions a number of times (eg see PS1 under heading OPTIONS @ P38). He was Mrs Lanes next of kin and legal guardian and had medical consent from Helen as to any treatment since 2005. Whilst undoubtedly a terrible and emotional time for him and the family, I do not think his mental capacity to make an appropriate decision was in any way affected.
222The notes of this meeting indicate that "Family aware that no feeding and no fluids would result in death in a matter of weeks". At PS1 (par 165 et seq.) it is stated that Mr Lane was clearly "not advised that no food, regardless of fluids, would result in starvation in two weeks. Whether it was starvation or pneumonia is uncertain, as Professor Ehrlich stated there was no evidence of pneumonia in the medical records". These propositions are contradicted by their own submission at par 164 but in any event there is no evidence from anyone that Mrs Lane would starve to death in two weeks without food. Apart from that, the expert evidence suggests that parenteral, PEG or N/G feeding of a patient in Mrs Lane's condition was inappropriate.
223I have been provided with three reports from Dr Raftos dated 10 Oct 2008 - to the NSW Coroner, the 2 Sept 2011 and 7 March 2012 - to the defendant. For the first two reports Dr Raftos basically had the clinical notes from the two hospitals but by the last report he also had a significant amount of background material as to Mrs Lane's pre morbid medical condition. Dr Raftos is an acknowledged expert in emergency medicine. It was his opinion that "Mrs Lane had been disabled by a severe form of dementia, Parkinson's dementia, since at least 2005". Having read the reports of Dr Boyce, Dr Fairfull-Smith and Robyn Gordon, it was his opinion that "All of this documentation indicates that Mrs Lane had severe dementia along with Parkinson's disease in 2005. In 2005 she was unable to communicate verbally, had poor mobility, and had substantially impaired cognition. Mr Leo Lane and their sons told hospital staff that her condition had deteriorated significantly in the six months before March 2007, and particularly in the preceding one month, to the extent that she needed assistance with all of the activities of daily life. This relatively rapid decline indicated that Mrs Lane was close to death". He then continued "It is inappropriate and medically unethical to prolong life when there is no likelihood of a meaningful recovery. Mrs Lane's had had a recent rapid decline in a chronic dementing process. In this context, it would have been inappropriate and unethical to treat acute bacterial infection with antibiotics to prolong her life".
224He was asked to express an opinion about the viability of feeding Mrs Lane either orally, by naso-gastric tube, by Percutaneous Endoscopic Gastrostomy (PEG) or by any other means? He advised again that "It is inappropriate and medically unethical to prolong life when there is no likelihood of a meaningful recovery. Mrs Lane had had a recent rapid decline in a chronic dementing process. In this context, it would have been inappropriate and unethical to prolong her life by artificial nutrition".
225The defendant also called another expert Dr John Obeid whose speciality is geriatric medicine. He provided two reports dated 18 Sept 2010 and 12 March 2012. The second report was made with the advantage of a large amount of background material in regard to Mrs Lane's pre-morbid condition.
226Whilst I hesitate to personalise during the course of a judgement, I am aware, from my own experience with close relatives, that the course of treatment of Mrs Lane at the LBH was in use at St Vincent's and Royal Prince Alfred Hospitals in Sydney well prior to 1998 for patients who were in a similar age and state to that of Mrs Lane.
227It is submitted that the hospital was negligent in not calling in a number of specialists such as a psycho-geriatric nurse, a geriatrician and a psychologist. It is for the plaintiffs to establish that the hospitals should have done this and further, if they had, it would have made a difference to their mother's outcome. Neither proposition has been proved and it is difficult to see what difference it would have made in any event. Mrs Lane's situation was neither unusual nor uncommon amongst the elderly. Hers was not a situation that required or could justify intervention at any level higher than that which she received. The plaintiffs have to establish that, but for the actions or inactions of the defendants, Mrs Lane would not have died and that has just not happened.
228I note that in his reports Dr Obeid says inter alia that "A neurological opinion would not have been of any value in the management of the patient. A review by a geriatrician would have been worthwhile as patients such as Mrs Lane are best managed by geriatricians. Having said this, I do not have any objection to the general management approach adopted by the caring team, save the lack of physiotherapy and occupational therapy input. The involvement of a geriatrician and physiotherapy and occupational therapy staff may have been beneficial, but overall the management was appropriate.
229Without downplaying the worthwhile input an Occupational Therapist provides in the multidisciplinary care of geriatric medicine patients, in Mrs Lane's circumstance the absence of specific Occupational Therapy input did not cause any material difference to her care or outcome. Further, and again without downplaying the worthwhile input a Physiotherapist provides in the multidisciplinary care of geriatric medicine patients, in Mrs Lane's circumstance the absence of specific PT input did not cause any material difference to her care or outcome. This is because: (a) Her general level of ill-health made mobilisation an impossibility at any stage of her admission, (b) Nursing staff appear to have been using appropriate techniques to minimise respiratory congestion such as positioning and suctioning. It is unlikely physiotherapy input would have provided additional expertise.
230My opinion that no material difference would have been made had a geriatrician been involved in her case is based on the assumption that there was no other significant or easily-reversible pathology present and not identified and that the correct diagnoses were made".
231Under a heading "MEETING" (PS P30 et seq & P40 et seq) the plaintiffs raise a number of issues in regard to feeding Mrs Lane either orally or via an I/V drip. Some of the suggestions are confusing. What is clear is that the plaintiffs made attempts to feed Mrs Lane in the days before the meeting. However given their evidence and what is revealed in the notes, there is nothing before me to suggest that Mrs Lane had the capacity to sustain whatever was offered to her by them in any meaningful way. Earlier, on 19th March, the nursing notes indicate an initial good phase for Mrs Lane at 06.50 but at 11.00, when seen with Dr Coupe, she was "grossly unchanged" with distended abdomen and groaning on palpation.
232It is probably fair to say that doctors Burrell, Coupe and Laird had the essential day to day care of Mrs Lanes medical situation while at LBH. I found the three doctors to be impressive witnesses with considerable experience in treating patients like Mrs Lane. Dr Burrell was a staff specialist at LBH and Dr Coupe a Registrar at the time. He is now in oncology care at Liverpool Hospital. Dr Senerviratne is and was an RMO at LBH and saw Mrs Lane on only one occasion on 11 March. Dr Laird was at the time a a VMO but had been a staff specialist in general medicine and is now Director of Medicine at Rockhampton Hospital. His involvement with Mrs Lane's treatment became more involved when Dr Burrell went on leave on 14 March. I am quite satisfied that all medical and other staff have done their best, with the assistance of the clinical notes and other records, to recollect events which were over five years old when they gave evidence.
233Despite trenchant criticism of their conduct by the plaintiffs in cross examination, I was impressed with the care and compassion they demonstrated towards the plaintiffs, even though disagreeing with many of the plaintiffs' propositions regarding Helen's treatment.
234On the issue of liability, the plaintiffs called one expert, Prof Ehrlich who provided reports dated 16 April 2010 and 11 May 2010 (Ex 29). It was possibly his comment at the end of the first report that fuelled the current proceedings where he said "I developed the view that Mrs Lane was put on an euthanasia course, whereas prolonging her life would appear to have been perfectly reasonable by at least effective palliative measures, if not active treatment of her final illness". For a medical professional to say something like that without knowing all the circumstances is in my view reprehensible and irresponsible.
235He felt that Mrs Lane's treatment should have been something between either active medical treatment, intravenous antibiotic therapy, vigorous chest physiotherapy and a concerted effort to 'cure' existing illnesses or to merely provide palliative measures such as keeping the patient comfortable, maintaining nutrition and hydration, providing adequate skin care to prevent bed sores, and attending to bowel and bladder function. The report contains some inaccuracies such as his observation that I could find no record in her files of her receiving antibacterial or antibiotic therapy. In fact Mrs Lane did receive such therapy initially until it was discontinued as indicated above. He also said at page 2 that there can be a fine line between avoiding major invasive intervention in a frail old individual but it is widely accepted that simple treatments, and certainly maintenance of nutrition, should be offered to the end. This does not seem to have occurred in the case of Mrs Lane who neither received antibiotics for her major infections nor was she provided with nutrition finally. Again that is in fact not the case and is not reflective of what appears in the clinical notes. Prof Ehrlich formed a view that there was an ongoing diagnosis of broncho-pneumonia which was not treated and for which condition the administration of morphine was "very odd indeed" as morphine is a respiratory suppressant. In fact the notes clearly indicate that antibiotics were ceased when her pathology was negative and the use of morphine was never done in a situation of Mrs Lane suffering from any sort of respiratory disorder nor a UTI.
236In evidence he confirmed what he had put in his report that precise diagnoses were not possible at such distance that is the distance he found himself, looking at it and with the information largely limited to hospital records but that it appeared that 'the beginning of the end' was on 10 March when Mrs Lane had some convulsions. The beginning of the end he related to Mrs Lane's final illness. He agreed that the frailer Mrs Lane had been before 10 March, the more guarded her prognosis. He was unaware of the wealth of material now available as to that situation. He agreed that if the reports and observations put to him in cross-examination were true, Mrs Lane was indeed a very frail old lady with both cognitive and physical difficulties. TP 43).
237At TP 49/50 he conceded he was at a disadvantage because he didn't get the chance to observe Mrs Lane at hospital on at least a daily basis and that being able to do so placed a clinician at a significant advantage over one coming along later. At TP 67/68 in re-examination by Elizabeth, Prof Ehrlich was asked if he would you agree that there was a confused diagnosis, a confused management and a confused prognosis to which he responded No. I don't think I can agree with that. I don't know that ..(not transcribable).. was confused. What I know is that it wasn't recorded. Q. Recorded. Unclear perhaps, an unclear diagnosis? A. It wasn't recorded, there was no diagnosis and evidence of why the diagnosis was achieved and there's no treatment plan. It was not recorded. Obviously there was a treatment plan, the treatment plan was to do nothing. There was a treatment plan but that was actually written down.
238I found Prof Ehrlich's evidence to be less than satisfactory. In many instances he was proceeding on assumed hypotheses that were not in fact what was recorded in the clinical notes which he had access to. That is particularly obvious in regard to the issue of pneumonia and antibiotics, which seemed to originate from the death certificate he had access to which did record pneumonia as one of the causes of death. Interestingly he said at TP 54 that "people fill in death certificates very often without - just put in the most plausible word, it doesn't necessarily be related to truth. I certainly don't know what the lady died of. She may have had pneumonia, she may not have".
239Even if I was prepared to accept Prof Ehrlich's opinion as to the inadequacy of Mrs Lane's treatment, his is only one view of what is appropriate peer professional conduct and I have evidence of other peer professional conduct that is in contra-indication to that view. In other words, there is a widely accepted view that the conduct of the defendant was appropriate professional conduct even though some may disagree with it. In those circumstances, the requirements of s5O of the CLA have not been met.
240In fact two death certificates were issued for Mrs Lane (Ex 4). The first, on 24 March 2007 by Dr Beek recorded the causes of death as being bronchostatic pneumonia (days), bedfast (weeks), anorexia (weeks), alzheimer's disease (years) and dementia (years) with another significant condition of epileptic seizure (two weeks ago).
241After intervention by the plaintiffs through the NSW Coroner, a second certificate was issued by Dr Beek on 30 April 2009 which deleted the references to alzheimer's and dementia.
242In November 2007 a Ms J Grainger wrote a lengthy letter to the Coroner on behalf of the plaintiffs setting out her understanding of Mrs Lane's treatment and her opinion as to the inadequacy of that treatment. (PTB 1 Pp129-132) Needless to say this letter was critical of the defendant. By March 2008, the Coroner declined to intervene. There then followed lengthy correspondence, which included a report from Dr J Raftos, a specialist in emergency medicine, in October 2008. After more correspondence and an approach by Mr P West, an officer of the Coroners Court, to Dr Beek, the latter agreed to amend the original certificate as indicated above and wrote on 1 May 2009 (PTB 1 P172) that "I trust that this amended death certificate will assist Mr Leo Lane and his family, whom I have known for the past 29 years, with their grieving process."
243This amended certificate was still unsatisfactory to the plaintiffs who conducted further lengthy correspondence with the Coroner who declined to act further and closed the matter. In the circumstances, and having regard to what Prof Ehrlich said above, one would be concerned at the value of this second certificate which was clearly obtained with a view to removing references to dementia and alzheimer's and presumably to persuade the Coroner to initiate an investigation into Mrs Lane's death. The fact that these pre-existing illnesses were removed from the death certificate does not equate to proof that Mrs Lane did not in fact suffer from either or both as all the independent medical evidence seems to suggest. (PS1 Par 167 et seq).
244Except by way of noting the above correspondence, I have not had regard to the Coronial material as it is irrelevant to any matter I have had to decide. Likewise, for the same reason, I have not had regard to the plaintiffs' tendered material relevant to their involvement with the Garling Special Commission of Inquiry into Acute Hospital Care which includes correspondence, newspaper articles, submissions and transcript.
20 March 2007
24520/3/07, 05.20 settled night.
24620/3/07, 08.50, S/B Laird/ Coupe, family present. Pt sleeping, unresponsive, pt's condition stable, unchanged. P - t/f to Casino, under Dr Andrew Watts . - continue to sc fluids - family will continue attempting oral feeding. Page 47, Helen Lane No Cardio - Pulmonary Resuscitation Order Patient's diagnosis and prognosis:- - vascular dementia - new onset seizure. Person responsible for the patient:- Husband. Discussion with:- (Page 48), the patient's spouse, the patient's family. Reason(s) for the No Cardiopulmonary Resuscitation Order:_ poor quality of day to day life - increasing vascular dementia.
247Page 49, 20/307, 10.10, Bed sponge given and responded, no bed available at Casino today.
24820/3/07, 15.30, pt cleaned and repositioned. Daughters have requested to sit pt out of bed - I have disagreed due to pt's lack of response. Spoke to husband Leo - who is in total agreement with my decision.
24920/3/07, 16.30, Social Worker 2329, Brief r/v - Prior to referrals to Allied Health or Specialist staff pls note entry family conference dated 19/3/07. Should family be insistent re referral pls discuss with Dr Laird - noted daughter Deirdre putting vegemite into pt's mouth.
250Discussion:- At PS pars 151/152 the plaintiffs state:- On Monday 19th March 2007 at 22.00hrs a CNS, Clinical Nurse Specialist D9 T84 26-27, from the pain management team, Ms Stephanie Paggotto made a referral to Ms Anne Moehead to review Mrs Lane. Dr Laird acknowledged Ms Paggotto did not need to gain his approval if she thought the patient warranted an assessment. Even though this referral was made by a clinical nurse specialist following observation of Mrs Lane and discussions with Mrs Lane's daughter/carer, and another daughter, LBH 19th March 22.00hrs CNS Mrs Lane was denied assessment. The referral was not followed through with the reason being there were to be no allied health care referrals as per family conference and if family insisted to refer them to Dr Laird.
251This needs to be looked at in light of a passage of transcript (TP 84 21 Jun 2012) where Dr Coupe is being asked questions by Elizabeth. I set that out below:-
Q. At 2200 hours. Can I just get you to read that entry, please, doctor?
A. It's not - it's by a nurse, Elizabeth.
Q. Yes?
A. It's not by a pain specialist. It's CNS at the end which is clinical nurse specialist but it's not - it wouldn't - there was no pain service that would have been available at 10 o'clock on any night.
Q. So if this did happen to be somebody from a pain management team - I guess if I just get you to read it out, if that's all right, doctor?
HIS HONOUR: Well, no, we can read it, it's quite clear. What do you want to ask him about?
WITNESS: Yeah, which part in particular?
PLAINTIFF E LANE
Q. I guess it was in reference to the pain, the third-last line, "Patient does not--
A. "Does not appear to be in any pain."
Q. Yes.
A. "I believe her verbalisation is more of a reaction."
Q. Yes.
A. Mm-hmm.
Q. So if that was from a pain specialist person that would be a fairly--
A. Yeah, Elizabeth, that's relevant at 2200 on the 19th, it's not relevant to
2300 or 2400 or anytime during the next day. It's relevant for that point in time.
Q. So if I said to you that the person that wrote - and sorry, and if you read the entry underneath then--
A. "A settled night."
Q. No, sorry, keep going down to S/B Coupe?
A. That's me, yeah.
Q. And it's the third line under that, if you could just read that?
A. Yep, "Patient family mentioned visit by Stephanie, pain team."
Q. Yes, so this Stephanie is a woman called Stephanie Pergoto, she's CNS acute pain, she's part of the pain management team?
A. Mm-hmm.
Q. So her assessment of Mrs Lane on that particular evening it is quite possible that the verbalisations that we've been seeing from my mother prior to this could very well not have been pain?
A. It may be Elizabeth, but did your mother receive anymore morphine beyond that point because I'm just trying to see what you're getting--
Q. No, she hadn't received morphine since the 15th--
A. So then there--
Q. So this is as far as the 19th, she hadn't received morphine, she was still verbalising but this expert from the pain management team had recognised that the verbalisations weren't pain, they were more a reaction to her daughters--
A. And no further morphine was given beyond that time--
Q. No, or before that--
A. So - which would be appropriate.
Q. So - and before that as well too. But my point is that Stephanie Pergoto - the pain management expert was saying that her verbalisations are a reaction to her daughters, is it possible that some of those verbalisations prior to this, when it was thought to be pain, may have actually been just other ways of trying to express herself as well, is it possible?
A. May have, may not. If you're trying to say that do I think they're meaningful verbalisations, no.
Q. I guess my point is would a more accurate assessment of her pain perhaps sorted out what was really going on with Mrs Lane?
A. I don't think it would have changed anything.
Q. So if it had been discovered earlier on that it was actually pain, the need for morphine may have perhaps not happened?
A. Possibly. But stressing the point the dose - the amount of morphine that was given in your mum's situation is absolutely minimal, absolute minimal. Morphine lasts on average four hours once it's given. The morphine given five days ago or whatever is not going to be causing problems on the 19th.
Q. Yes, I understand that. And I'm not suggesting that the 19th had anything to do with the morphine?
A. Sure.
Q. What my suggestion here is is that it would have been in Mrs Lane's best interest to have had a more specialised pain management person considering that she had a communication disability, would you agree with that?
A. I think if we had this assessment - I suppose what you're alluding to, she may have had a couple of doses of morphine that she may not have needed. If we lived in an ideal world and we could have those assessments done at the drop of a hat, then that would make everybody's life much easier but unfortunately we don't. Elizabeth, in this situation it is better to err on the side of treating someone with comfort rather than making assumptions and not treating them.
252As can be seen from the above clinical note and that excerpt from the transcript, the plaintiffs submission is misguided to say the least. The Social Worker did not say there were to be no allied professional referrals and Dr Coupe in his evidence makes it quite clear why the medical team acted in the way it did. It is for the plaintiffs to establish that the failure to do something was not only negligent but that it would have resulted in a more favourable outcome for Mrs Lane.
253Page 50. 20/3/07, 21.40, pt groans when moved for PAC, but otherwise settled. Husband and son in attendance.
21 March 2007
25421/3/07, 04.00 settled night.
25521/3/07, 11.45, Biscoe - called, Dr Jurrian Beek at Casino , will accept care for Mrs Lane.
25621/3/07, 11.30, Pt T'port , pt. Assessed for t/fer to Casino will require nurse escort for comfort. Due to periods of apnoea of approx 30-45 secs we will re-assess again in 1.5 hrs. time, .. this apnoea is not uncommon over last few days, however I have concerns about developing pulmonary oedema en route. Pt will be given O2 to relieve distress but no further intervention as stated in doctors orders and outcome from family conference. Daughter would like to accompany pt. Request experienced RN for escort pls.
257Page 51 21/3/07, 12.55 S/B Biscoe/ Burgess, patient comfortable. Family happy with plans for t/f to Casino with RN, 21/307, 13.20 Nursing - comfortable morning. PAC and wash attended with assistance of daughters. Nil analgesia required. Subcut fluids stopped for transfer as per Dr Biscoe. Family in attendance throughout day.
25813.40 Nursing - pt left for Casino Hospital.
Casino Hospital - 22 March 2007
259Page 53, 22/3/07, 13.00, Social Worker, Mr Lane had agreed for Mrs Lane to be transferred to Casino Hospital - if after a week and Mrs Lane surviving - agreed plans for Mrs Lane to die at home and be cared for by daughters with supports in place.
260Page 110, North Coast Area Health Service - Admission Form:- Casino Memorial Hospital, Altzheimers D (?), bronchostatic pneumonia Beek, (24,3/07).
261Page 112, Patient Care Plan date: 21/3/07, unconscious, full assist, NBM, date: 22/3/07, semi-conscious, full assist, NBM, date: 23/3/07 semi-conscious, full assist NBM.
262Page 114, 21/3/07, 17.00, patient transferred from LBH for palliative care. Has been having sc fluids at 60mls/ hr. Dr King contacted for order for same however family not wishing to have it started for a couple of hours to allow pt to rest following move from Lismore Dr King will review pt this evening as Dr Beek unavailable.
26321/3/07, 20.45, s/c fluids commenced running at 60 mls/hr PAC attended , family remains in attendance during evening.
26421/3/07, palliative care patient transferred back from LBH. Writings for subcut fluids PRN morphine NFR. Husband understanding and co-operative but one of two daughters apparently a little difficult - appear unable to accept imminent decease of mother. Bruce King.
22 March 2007
265Page 115, 22/3/07, 05.10, awake but not really responsive to questions etc. daughters asking for pts gag to be reassessed today if possible.
26622/3/07, -asleep, -? poor feeding - confusing picture - had yoghurt 48 hrs ago- not catheterised - daughter NOT keen on the NH option - speech pathologist to advise - family conference might be of benefit.
267Page 116, 22/3/07, 09.35, family meeting with Dr Beek in ward at 18.00 hrs 23/3/07.
26822/3/07, 12.00 Speech Pathologist:- pt previously assessed by SP @ LBH and nil by mouth recommended due to limited levels of alertness and responsiveness. Family required review by SP at Casino Hospital. - pt was awake initially but did not make eye contact did not respond to verbal or tactile stimulation for OMA (Oro Motor Assessment) did not show any spontaneous swallows and fell asleep after 5 minutes - had long discussion with family members and N.U.M. present - lots of issues and disagreement over past weeks. Bottom-line what SP role is concerned patient is at high risk of aspiration in current condition - thus recommend Nil By Mouth . SP explained risk of aspiration to family as they seemed determined to feed her. If/when pt becomes more alert, family members may notify staff - if staff feel level of alertness is sufficient for speech path review staff to contact me on ext 604 for a review. nursing staff to continue with oral hygiene.
269Discussion:- This was the second time that Mrs Lane was assessed by a Speech Pathologist in a different hospital to the first assessment approximately a week earlier. Ms Lucks came to the same conclusion as to nil by mouth as did her compatriot Ms Kostal. There is no suggestion that they colluded with each other in any way and I accept that the two assessments were at arms length and independent. It is therefore difficult to accept that these two professionals got the situation so wrong and were so ignorant of what is required to be done in the circumstances of a patient like Mrs Lane that they failed to take that situation into account. After all, it wasn't as if they were presented with a novel or unusual situation and their evidence indicates that they are required to deal with a variety of patients in dramatically divergent medical situations.
270At PS par 141 the following statement was made:- But no help was forthcoming for the decision Mr Lane had made to continue with attempts to oral feed. I.e., no dextrose, vitamins or minerals, electrolytes in the intravenous drip to make her feel more like eating; no antibiotics to reduce fever/sepsis to make her feel like eating; no increase in hydration to make her feel more like eating; no further talk of s/p review to show staff or doctors best way to facilitate eating; no qualified staff provided to assist Mrs Lane to eat, instead her daughters without expertise to do this.
271Unfortunately there is no evidence to support any of these propositions as being either appropriate in the circumstances or likely to effect the outcome of Mrs Lane's condition. If Mrs Lane was able to spontaneously swallow food to any meaningful degree, I am sure the plaintiffs would have observed this and drawn it to the attention of staff but the clinical notes reveal rare and only apparently brief such attempts which obviously were unable to be sustained.
272I do not accept that there is any support for the proposition that either Speech Pathologist did not undertake their work in a professional manner. There has been no expert evidence tendered to suggest that their conduct was negligent or that their conclusions were inappropriate. One can only wonder at how the plaintiffs would have reacted if their mother had aspirated what she was being given by them and subsequently suffered fatal consequences.
273At TP p14 on 21 June 2007, Dr Beek who had been Mrs Lane's treating doctor for many, many years and who also oversaw Mrs Lane's management during her second admission to CDMH was asked by Elizabeth:- What were the signs that she was at the end of life stage? He replied:- Well, comatose, ventilator, no longer alert, sleeping, and it got worse. Restlessness at times, low oxygen levels. We did a POQ on her and it came back at 94%. We gave her oxygen.. (not transcribable).. bowels, rattly chest, poor respiratory sounds, at one stage, a fever. You would have to say, in common parlance, generally a poor outlook.
274Page 117, 22/3/07, 12.45, daughters called me to see patient who had become more alert. Mrs Lane certainly awake and slowly following nurses with her eyes had only one obvious response of recognition. One reflex swallow observed. Still awake after 5 mins. She is not alert enough for speech pathologist review at present.
27522/3/07, 15.00 h S/B Dr Beek, daughters in attendance. Sponged in bed after family discussed issue of showering patient may be too distressing and unsafe for patient. Daughters instructed on leg and arm gentle exercising in bed.
27622/3/07, 20.40, pt resting quietly during evening not alert enough during evening for oral intake however daughter using ice on lips. Family in attendance throughout evening.
23 March 2007
277Page 118, 23/3/07, 04.30 Nursing, slept most of night. Breathing laboured Serts (?) 93% Rt O2 applied at daughters request Febrile 88°.
27823/3/07, 8.30 am, long talk with daughters Elizabeth and Deirdre keen on nutrition - long talk with Ralph and father (Leo) not keen on intervention other than subcut fluids - risks and benefits outlined - general outlook explained - Helen - seems to be asleep - was febrile - not responding to spoken commands. (illegible) family discussed as to Rx - Deidre said that complaints to the HIC had been put in place about failure to Rx - Father the next of kin - advised that parenteral nutrition trial was a reasonable short term option - "Leo" not keen with this option.
279Discussion:- Note that "Parenteral" is defined in the Gould Medical Dictionary (4th Ed) as "Outside the intestine; not via the alimentary tract, as a subcutaneous, intravenous, intramuscular or intrasternal injection. I understand the clinical note to mean that the staff advised the family that parenteral nutrition was a reasonable short term option but that Mr Lane declined the option. Dr Obeid did not agree that parenteral feeding was appropriate because of possible complications. I note that Mrs Lane passed away the following afternoon.
280Page 119, 23/3/07, 11.12 long discussion with Deirdre, Elizabeth, Ralph and Leo as outlined by Dr Beek no social worker available today to assist the family to reach consensus. I've obtained the phone number for the public guardian in case Leo wishes to confirm his rights and responsibilities as next of kin.
28123/3/07, 12.48, when I went to give Leo the guardianship board number he was already aware of it. He and son Ralph had just been to see their solicitor, Frank Hannigan, again to ensure that the paperwork was in place. Ralph added that his father has enduring guardianship. I will ask that they bring the paperwork in for the meeting tonight.
28223/3/07, 14.00, sponged in bed this am and hair washed with daughters help. Daughter didn't want her dentures removed at this time (Page 120), 23/3/07, 14.00 because she said she would do it later. At one stage Helen said "where's Leo" to her daughter Elizabeth. 23/3/07, Addit, Helen has been awake at times but not alert enough to drink.
28323/3/07, 21.15, long discussion with Dr Beek, Ralph, Robert, myself, Andrew Adams, Leo Lane and Elizabeth commencing at 2000 hrs. At 2055hrs, Robert, Ralph and Leo left and Deidre joined us (see Dr Beek's notes). Mr Lane has enduring guardianship of Helen and has the final say in all medical matters. Outcome of meeting:- no assisted nutrition regime. keep patient comfortable. Deirdre will use alternative therapies massage etc in an endeavour to ease any pain or (continued page 121) distress. All members of the family are to have equal visiting rights in private if requested and to be respectful towards each other. this was requested by Ralph and John and endorsed by Leo., under no circumstances is morphine to be given at any time. The family members present all agreed to this.
284Page 121, 23/3/07, 21.25, condition remains unchanged 2/24 PAC attended. Daughter requested at one time that only to wash Helen around genital area, change incontinent pad and they would do rest of areas. Having family prayer session.
24 March 2007
28524/3/07, 0800, condition much the same.
286Page 122, 24/3/07, 10 am, - "asleep" - resp rate elevated - ?not responding to spoken commands - ? febrile - generally poor outlook - follow discussion with family, suggest that "IVI" line be discontinued. - seems to be not in distress.
28724/3/07, 12/05 Helens condition remains unchanged, sponged in bed, s/c infusion ceased and cannulae removed as per orders. Helen has quite moist respiratory sounds. Daughter concerned (continued page 123) Helen appears comfortable although non-responsive, incontinent urine.
288Page 123, 24/3/07, 13.40 hrs, daughters concerned re: "moist breath sounds rattly chest". Requested that pt be repositioned same attended. Daughters reassured. Reassured and explained that Helen appeared comfortable and in no distress. Discussed that on call MO could review and assess if they wanted. Preferred to wait and see.
28924/3/07, 15.30, Nursing, staff called by family advising that mum is about to go. Pt resps slow and shallow - ceased breathing at 15.20 hrs. All family in attendance. Requested time alone.