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[2025] ACTSC 488
General information, not legal advice.
Supreme Court of the ACT
2025-10-31
Baker J
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Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: Hartfield v Calvary Healthcare ACT Ltd (No 4) Citation: [2025] ACTSC 488 Hearing Date: 11 September 2023 – 15 September 2023; 14 December 2023 – 15 December 2023; 13 May 2024 – 14 May 2024 Decision Date: 31 October 2025 Before: Baker J Decision: Judgment is entered for the plaintiff in the sum of $118,306.
Catchwords: NEGLIGENCE – MEDICAL NEGLIGENCE – where plaintiff suffered ectopic pregnancy – where plaintiff had a history of ectopic pregnancy and miscarriage – where plaintiff discharged from hospital where ectopic pregnancy had not been excluded – where ectopic pregnancy ruptured while the plaintiff was at home – where urgent salpingectomy later performed – where plaintiff rendered unable to naturally conceive NEGLIGENCE – MEDICAL NEGLIGENCE – whether defendant breached its duty of care in failing to perform a diagnostic laparoscopy during the plaintiff’s first hospital admission – where expert evidence was that laparoscopy presents its own risks – where expert evidence suggests likelihood of laparoscopy leading to successful salpingostomy was low – breach of duty and causation on primary case not established NEGLIGENCE – MEDICAL NEGLIGENCE – whether hospital breached its duty of care in discharging the plaintiff while at risk of ectopic pregnancy without providing adequate advice concerning risk of ectopic pregnancy – where plaintiff suffered psychiatric injury – whether contributory negligence – claim established – damages awarded Legislation Cited: Administrative Arrangements 2019 (No 1) (ACT) Civil Law (Wrongs) Act 2002 (ACT), ss 42, 43, 44, 45, 99, 102, 109, 110 Civil Liability Act 2002 (NSW), s 5O Court Procedure Rules 2006 (ACT), rr 1241, 1243 Health Infrastructure Enabling Act 2023 (ACT) Legislation Act 2001 (ACT), dictionary Public Sector Management Act 1994 (ACT), s 13 Cases Cited: AB v Australian Capital Territory [2018] ACTSC 16 Alananzeh v Zgool Form Pty Ltd [2024] ACTSC 16 Alananzeh v Zgool Form Pty Ltd [2025] ACTCA 19 ASIC v Hellicar [2012] HCA 17; 247 CLR 345 Austen v Tran [2023] ACTCA 44 Brandi v Mingot (1976) 12 ALR 551 Dixon v Foote & Calvary Health Care ACT Limited [2012] ACTSC 101 Fuller v Australian Capital Territory [2024] ACTCA 19 Gestmin SGPS v Credit Suisse (UK) Ltd [2013] HWHC (Comm) 3560 Hartfield v Calvary Healthcare ACT Ltd [2023] ACTSC 401 Hartfield v Calvary Healthcare ACT Ltd (No 3) [2024] ACTSC 137 Heron v McGregor (1986) 6 NSWLR 246 Horne v J K Williams Contracting Pty Ltd [2023] NSWCA 58; 104 MVR 1 J and E Vella Pty Ltd v Hobson [2023] NSWCA 234 Jones v Dunkel [1959] HCA 8; 101 CLR 298 Kelly v The King [2024] VSCA 69 Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; 243 CLR 361 Ling v Pang [2023] NSWCA 112 McLennan v Meyer Vandenberg [2020] ACTCA 7 Nominal Defendant v Cordin [2017] NSWCA 6; 79 MVR 210 Onassis v Vergottis [1968] Lloyds LR 403 Read v Burns [2017] ACTSC 184 Rogers v Whitaker [1992] HCA 58; 175 CLR 479 Rosenberg v Percival [2001] HCA 18; 205 CLR 434 S and XT v Calvary Health Care ACT trading as Calvary Hospital and Dr Andrew Foote [2018] ACTSC 84 Smith v Samuels (1976) 12 SASR 574 SSABR Pty Ltd v AMA Group Ltd [2024] NSWCA 175 Strong v Woolworths Limited [2012] HCA 5; 246 CLR 182 Tabet v Gett [2010] HCA 12; 240 CLR 537 The Property Investors Alliance Pty Ltd v C88 Project Pty Ltd (in liq) [2023] NSWCA 291 Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422 Wallace v Kam [2013] HCA 19; 250 CLR 375 Watson v Foxman (1995) 49 NSWLR 315 West v Government Insurance Office of New South Wales [1981] HCA 38; 148 CLR 62 Wilkins v Council of the City of Broken Hill [2005] NSWCA 468 Texts Cited: Diagnostic and Statistical Manual of Psychiatric Disorders th (American Psychiatric Association, 5 ed, 2013) Explanatory Statement, Health Infrastructure Enabling Bill 2023 Parties: Emily Hartfield (Plaintiff) Calvary Healthcare ACT Ltd (Defendant) Representation: Counsel D Toomey SC with D Richards (Plaintiff) J Morris SC with E Elbourne (Defendant) Solicitors Maliganis Edwards Johnson (Plaintiff) ACT Government Solicitor (Defendant) File Number: SC 251 of 2022 BAKER J: Table of Contents Overview............................................................................................................................ 5 The proceedings ................................................................................................................ 6 The evidence ..................................................................................................................... 8 The plaintiff’s medical history ......................................................................................... 8 The plaintiff’s first admission (the events the subject of the present claim) ..................... 8 Emergency Department examination (10:19am) ............................................................ 9 MEWS Records .............................................................................................................. 9 Nurse examination at 10:45am on 31 July 2019 ............................................................10 Ultrasound results .........................................................................................................11 2:30pm consultation with Dr Bodulkar ...........................................................................11 5:00pm – Fentanyl administered ...................................................................................12 6:00pm – Nursing note ..................................................................................................12 8:10pm – Fentanyl administered ...................................................................................13 8:30pm consultation with Dr Bodulkar and Dr Menakaya...............................................13 11:10pm – Fentanyl administered .................................................................................15 Nurse examination at 1:45am on 1 August 2019 ...........................................................16 Nurse examination at 5:30am on 1 August 2019 ...........................................................16 Nurse examination at 7:15am on 1 August 2019 ...........................................................16 Nurse examination at 10:10am on 1 August 2019 .........................................................17 11:30am consultation with Dr Bodulkar .........................................................................17 12:00pm consultation between Dr Bodulkar and Dr Menakaya......................................19 12:25pm consultation ....................................................................................................20 Discharge at 1:30pm .....................................................................................................21 The plaintiff returns home ..............................................................................................22 The plaintiff’s re-admission and surgery on 2 August 2019............................................23 Subsequent events........................................................................................................23 The medical evidence concerning the diagnosis and treatment of the plaintiff ..................25 The three experts ..........................................................................................................25 Associate Professor Izzo’s First Report .........................................................................26 Associate Professor Izzo’s Second Report ....................................................................26 Dr Lamaro’s First Report ...............................................................................................27 Associate Professor Izzo’s Third Report ........................................................................28 Dr Lamaro’s Second Report ..........................................................................................29 Professor Hyett’s Report ...............................................................................................31 The NICE guidelines .....................................................................................................32 The RCOG guidelines ...................................................................................................33 The conclave evidence ..................................................................................................33 The psychiatrists ...........................................................................................................37 The admissibility of the oral evidence of Dr Allnutt and Dr Ventura ................................41 Relevant legislation and principles ....................................................................................50 Duty of care ...................................................................................................................50 Breach of duty ...............................................................................................................51 The relevance of peer professional opinion in determining whether there has been a breach of the duty of care ..............................................................................................52 The application of s 110 of the Wrongs Act (principles about public authorities) ............53 Causation .........................................................................................................................54 Contributory negligence.................................................................................................55 The pleadings ...................................................................................................................56 Scope of the duty of care...............................................................................................56 Breach of Duty ..............................................................................................................57 Damages.......................................................................................................................59 Findings of fact .................................................................................................................60 Overview .......................................................................................................................60 The weight to be given to the evidence of the plaintiff, her sister, the medical personnel and the clinical notes .....................................................................................................61 The plaintiff’s pain levels during the course of her first admission ..................................63 What did the plaintiff tell medical staff about her pain levels during the course of her admission? ....................................................................................................................64 The plaintiff’s pain levels at the time of discharge ..........................................................65 What did the plaintiff tell medical staff about her pain levels at the time of discharge? ..66 Did the plaintiff tell medical staff that she believed that she was suffering from an ectopic pregnancy? ...................................................................................................................67 What was the plaintiff told about possible diagnoses during the course of her admission? ......................................................................................................................................67 What was the plaintiff told about the possibility of an ectopic pregnancy at the time of discharge?.....................................................................................................................69 Does the plaintiff have a recognised psychiatric illness? ...............................................71 The absence of evidence from the plaintiff’s then husband ...........................................72 The plaintiff’s primary case ...............................................................................................73 Overview .......................................................................................................................73 Breach of duty: Should a laparoscopy and/ or a salpingostomy have been performed at any time during the first admission? ..............................................................................74 Causation ......................................................................................................................76 Conclusion ....................................................................................................................76 The plaintiff’s alternative case ...........................................................................................77 Outline of the plaintiff’s alternative claim ........................................................................77 The defendant’s submissions concerning the plaintiff’s alternative claim .......................78 Determination as to liability on the plaintiff’s alternative claim ........................................79 Damages ..........................................................................................................................94 Overview .......................................................................................................................94 General damages ..........................................................................................................94 Future psychological treatment......................................................................................97 Past economic loss .......................................................................................................98 Future economic loss ....................................................................................................98 Past out of pocket expenses .........................................................................................98 Total damages ..............................................................................................................99 Costs ................................................................................................................................99 Orders ..............................................................................................................................99
Overview
Shortly before 10:30am on the morning of 31 July 2019, the plaintiff, Ms Emily Hartfield, attended what was then the Calvary Hospital in North Canberra (the Hospital). She was five weeks pregnant. The plaintiff had previously had two miscarriages and an ectopic pregnancy (where a fertilised egg implants and grows outside of the uterus, commonly in the fallopian tube), the latter of which had resulted in the loss of the plaintiff’s right fallopian tube. The plaintiff was suffering pain and bleeding, and feared that she may have been suffering from a second ectopic pregnancy. If untreated, an ectopic pregnancy can be dangerous, and can result in death.
The plaintiff was admitted into hospital and various investigations were undertaken. The plaintiff was discharged home at around 1:30pm the following day, 1 August 2019. At the time of the plaintiff’s discharge, her diagnosis was a pregnancy of unknown location: neither a miscarriage nor a tubal ectopic pregnancy had been ruled out.
The plaintiff’s pain increased whilst she was at home over the evening of 1 August 2019 and into the following morning. The plaintiff returned to the Emergency Department of the Hospital at approximately 6:00am on 2 August 2019. An ectopic pregnancy was diagnosed and the plaintiff was taken into emergency surgery, where she underwent a laparoscopic left salpingectomy (a procedure for the removal of her remaining fallopian tube).
The plaintiff seeks damages against the Hospital for negligence. The plaintiff’s primary case is that the Hospital should have performed a laparoscopy (keyhole surgery of the abdomen and pelvis) on her first admission. She contends that a laparoscopy would have revealed the ectopic pregnancy, enabling the performance of a salpingostomy (a procedure for the removal of an ectopic pregnancy from a fallopian tube which does not involve removal of the tube itself). The plaintiff further contends that, if a salpingostomy had been performed, she had a reasonable chance of retaining her natural fertility.
In the alternative, the plaintiff contends that the Hospital breached its duty of care to her by discharging her on 1 August 2019, in circumstances where an ectopic pregnancy had not been ruled out, she was still in pain, and where she had not been provided with adequate advice concerning the seriousness of her condition.
The plaintiff submits that if she had not been discharged from the Hospital at that time, she would have been in hospital when her pain noticeably increased later that evening. She contends that if she had been in hospital when her pain increased, a successful salpingostomy may have been performed; or, in the alternative, that she would not have sustained psychological injury (namely, Post Traumatic Stress Disorder), which, she contends was caused by the distress and fear which she suffered in the lead up to the emergency surgery that was performed on 2 August 2019.
The proceedings
The proceedings were listed for hearing in September 2023 with a four day estimate. That hearing ultimately extended over five days, and encompassed oral evidence from the following witnesses: (a) The plaintiff; (b) The plaintiff’s sister, Madeleine Hartfield; (c) Wendy Dansby, a registered nurse who attended the plaintiff on 31 July 2019 and 1 August 2019; (d) Dr Yogesh Bodulkar, the attending obstetrics and gynaecological registrar who examined the plaintiff on 31 July 2019 and 1 August 2019; (e) Dr Uche Menakaya, the on-call obstetrics and gynaecological consultant who examined the plaintiff on 31 July 2019 and was involved in the decision to discharge her on 1 August 2019; (f) Associate Professor Louis Izzo, obstetrician and gynaecologist, Dr Vince Lamaro, obstetrician and gynaecologist, and Professor Jonathan Hyett, obstetrician and gynaecologist, each of whom gave medical evidence in an expert conclave; (g) Dr Stephen Allnutt, forensic psychiatrist, and Dr Antonella Ventura, psychiatrist, who gave evidence in an expert conclave; and (h) Dr Felicity Brims, the plaintiff’s treating gynaecologist and a fertility specialist.
At the conclusion of the first hearing, the parties sought an opportunity to provide written submissions to the Court, and for the proceedings to be adjourned to enable oral submissions to follow the exchange of those written submissions. I acceded to this application and made orders for the filing of written submissions by both parties, and for the hearing of oral submissions on 15 December 2023.
In its written submissions, the defendant objected to the plaintiff’s reliance on the alternative case referred to at [5] above. On 13 December 2023, the plaintiff made an application for the hearing of the oral submissions to be vacated. After hearing from the parties on this application, I vacated the hearing and made orders granting leave to the plaintiff to file and serve an Amended Statement of Claim, with an order that costs be costs in the cause: Hartfield v Calvary Healthcare ACT Ltd [2023] ACTSC 401 (Hartfield (No 1)). In brief, I held that whilst the plaintiff’s alternative case was within the scope of the original pleadings, it could have been more clearly articulated, and that the pleadings should be amended to make the alternative case abundantly clear. Senior Counsel for the plaintiff accepted that the defendant should be afforded an opportunity to plead a case of contributory negligence in reply. He also accepted that the plaintiff should be recalled to permit the defendant to cross-examine her about on issues relevant to the plaintiff’s alternative case.
The proceedings were listed for further hearing in May 2024 to enable this to occur. Prior to that hearing, I made further rulings concerning the pleadings and the evidence: Hartfield v Calvary Healthcare ACT Ltd (No 3) [2024] ACTSC 137. At the final hearing, the plaintiff was recalled and cross-examined. The defendant also adduced evidence from Dr Yvonne Skinner, forensic psychiatrist, in relation to the plaintiff’s claim for damages relating to her alleged psychological injury.
The evidence
The plaintiff’s medical history
The plaintiff, Ms Hartfield, was born on 18 June 1991 and is currently 34 years old.
The plaintiff has previously suffered two miscarriages, the first in 2013, and the second in 2015.
On 4 November 2015, the plaintiff presented to Calvary Hospital after 17 days of vaginal bleeding, cramping and abdominal pain. She was diagnosed as having an ectopic pregnancy in her right fallopian tube. The plaintiff underwent a laparoscopic (“keyhole”) right salpingectomy (removal of part or all of the fallopian tube). During the laparoscopy, two peritoneal windows and endometriosis were identified.
In early 2016, the plaintiff became pregnant with her daughter. The plaintiff subsequently gave birth to her daughter at Calvary Hospital on 9 October 2016.
On 24 April 2018, the plaintiff presented to the Calvary Hospital Emergency Department with increasing pain and nausea. The plaintiff underwent a laparoscopic left ovarian cystectomy and a hysteroscopy (examination of the inside of the uterus) on 26 April 2018 to remove a cyst on her left ovary. This surgery was performed without complications.
The plaintiff’s first admission (the events the subject of the present claim)
In July 2019, the plaintiff became pregnant, as confirmed by Human Chorionic Gonadotropin (hCG) levels from a blood test requested by her General Practitioner.
On the evening of 30 July 2019, the plaintiff began experiencing abdominal pain in her lower left-side abdomen, cramping and spotting. At that time, she had been experiencing vaginal bleeding for six days.
The following morning, the plaintiff called her sister, Madeleine Hartfield. Madeleine Hartfield went to the plaintiff’s house, where she found the plaintiff in pain, holding her stomach. The plaintiff immediately drove herself to hospital, leaving her daughter in the care of her sister.
At 10:19am, she presented to the Hospital, where she was triaged and examined by Emergency Department staff. Emergency Department examination (10:19am) The Emergency Department Records
The Emergency Department Records of the Hospital record that the plaintiff presented to the Emergency Department at 10:19am and was assessed as having a triage level of three. The presenting problem is described as “pain - abdo/ pelvis/ perineal”. The nurse assessment record states that the plaintiff was complaining of left sided abdominal pain, that the plaintiff was 5/40 weeks gestation and had vaginal spotting and cramping pain. The record further records that the plaintiff reported a history of a previous ectopic pregnancy and two miscarriages.
The first entry in the Patient Progress Notes (the Progress Notes) on 31 July 2019 does not appear to have a time recording. It states that the plaintiff had reported a previous ectopic pregnancy, on the right hand side, which had ruptured and required surgery. The note further states that (i) the plaintiff reported a 5/40-week gestation based on her last menstrual period; (ii) the plaintiff had been bleeding (spotting) for the past 6 days; (iii) the plaintiff had been suffering pain since the previous day, which was “getting worse”; and (iv) the plaintiff was allergic to penicillin and opioids. The note records that the “plan” was to obtain an ultrasound on an “urgent” basis as well as obtaining various blood tests.
The plaintiff’s evidence
MEWS Records
The hospital records contain a chart recording the plaintiff’s MEWS (Modified Early Warning Scores) records for the duration of her first admission. That chart indicates that the plaintiff’s respiratory rate, oxygen saturation levels, heart rate, blood pressure and temperature were within normal levels, giving MEWS scores of 0 at each observation throughout 31 July 2019 and 1 August 2019, other than at 10:40am on 30 July 2019 (at which time the plaintiff is recorded as having a temperature MEWS of 1, by reason of a lower than normal temperature). The row for “pain score” (between 0, indicating no pain and 10 indicating worst pain) is not filled out for any entry on 31 July 2019 or 1 August 2019. Nurse examination at 10:45am on 31 July 2019 The nursing notes
In a record entitled “Emergency Department Assessment”, the plaintiff’s presenting problem is described as “lower abdo pain L) hand side cramping spotting 4/40 weeks gestation”. The entry for “Relevant Patient Medical/Surgical History” records “ectopic pregnancy Nov 2015 – removal of R) [right fallopian rube]”. Under the heading “Medication taken prior to arrival”, it is recorded that the plaintiff had taken paracetamol at 7:30am. On a pain scale of six faces ranging progressively from a happy expression to distressed expression, the third face in the sequence is circled.
The first entry in the nursing notes was written by Nurse Dansby at 10:45am. That note states: Pt has self presented to ED with L) Lower abdo pain with onset last evening. Pt has Hx [history] of ectopic pregnancy in 2015 R) tubes removed. Pt has allergies to penicillin and most opioids. Pt is 4/40 weeks gestation. A patent and clear, B spontaneous, RR [respiratory rate] 19, SPO2 [oxygen levels] 100% on RA [room air]. C HR [heart rate] regular 90bpm cap refill C3 sec. D Pt alert and oriented. The plaintiff’s evidence
The plaintiff gave evidence that when she was first seen by a nurse, she told the nurse that she had “experienced two miscarriages before and an ectopic pregnancy, and that the pain that [she] was feeling … like [she] was having another ectopic pregnancy”, although she could not remember “word for word” what she had said.
The plaintiff gave evidence that she informed the nurse that she was in “severe pain”. She recalled that the nurse was writing at the time but was unsure whether she noted this down.
Nurse Dansby’s evidence
Nurse Dansby did not have any recollection of her interactions with the plaintiff. Nurse Dansby could not categorically state whether the plaintiff at any time told her she was in severe pain; or if she at any time observed the plaintiff in severe pain. However, Nurse Dansby gave evidence that she would have recorded that the plaintiff was in severe pain if the plaintiff had made this statement.
Nurse Dansby confirmed that she had filled in the diagram of cartoon faces. She gave evidence that the estimate depicted referred to her observations, rather than the plaintiff’s self-reported pain. She also gave evidence that the third face indicates the patient is “neutral” – that is, not in pain but not happy. Ultrasound results
An ultrasound report dated 11:43am on 31 July 2019 recorded a clinical history of “?ectopic pregnancy. hx of ectopic pregnancy on right + surgery. pain to left lower abdo. 5/40 gestation, no u/s for this pregnancy. ++ pain and PV bleeding.” Under the heading “Findings”, the report states: The uterus, endometrium and ovaries appear normal. No adnexal masses. A small amount of free fluid is seen in the pelvis. No ultrasound evidence of a [sic] an intra or extrauterine gestation. 2:30pm consultation with Dr Bodulkar
At approximately 2:30pm on 31 July 2019, Dr Bodulkar held a consultation with the plaintiff. Dr Bodulkar conducted a physical examination of the plaintiff at this consultation, which included an abdominal examination.
The Progress Notes
The Patient Progress Notes, which were written by Dr Bodulkar, record that the plaintiff was “conscious/comfortable” upon a physical examination, that she had “no guarding/rigidity”, “[minimal] tenderness in [left side] iliac fossa”, and that she was stable. The Progress Notes also record a “DD” [Differential Diagnosis] of “Risk/ Ectopic due to past history”; “Ongoing miscarriage” and “PUL” [Pregnancy of Unknown Location].
An apparently separate entry (without a time notation) states that “pt complains of [increasing] pain to RIF [right iliac fossa] from 1 hour ago” and that a phone call had been made to the O & G Registrar. The entry also records “[h]e will call anaesthetics for pain review”.
The plaintiff’s evidence
The plaintiff recalled Dr Bodulkar discussing the ultrasound, and her beta-hCG levels in this consultation. She also recalled that Dr Bodulkar advised her that it was likely that she was having a miscarriage and that the pain was “likely from an ovulation issue”.
The plaintiff initially did not recall any conversation about the risk of an ectopic pregnancy, or any conversations about the prospect of surgery in this consultation. However, in cross-examination, she accepted that she was told generally about the plan for her treatment, including that she should have “nil by mouth” in case surgery was required.
The plaintiff denied that she was “comfortable” during this examination. In her evidence in chief, the plaintiff said that during this consultation, she was experiencing severe pain, and she said that she told Dr Bodulkar that this was the case. However, in cross-examination, she stated that she had confused the times, and that she did not tell Dr Bodulkar that she was in pain severe during the first consultation, but just said words to the effect of that she was “coping”. She maintained that she was “curled up”, “in a ball” and that she was “putting pressure on the left side of [her] body”.
Dr Bodulkar’s evidence
Dr Bodulkar gave evidence that the notation in the Progress Notes reflected his own observations, rather than anything the plaintiff said. He considered that “signs of discomfort” would include a patient being visibly in pain, unable to provide a medical history, lying down or curling up, using a heat pack or pillow, holding on to a carer, or asking for pain relief. He stated that if these signs are not recorded in his notes, they were not present. He also gave evidence that if the plaintiff had reported that she was in severe pain at the time, he would have recorded this in his notes and would have offered her pain medication.
Dr Bodulkar also gave evidence that where a patient presents with abdominal pain and a history of ectopic pregnancy and abdominal pain, the first thing he will check for is the signs of an acute abdomen, such as guarding and rigidity, to determine whether urgent surgery is required.
Dr Bodulkar explained that where there is a risk of ectopic pregnancy, an attempt will be made to identify the ectopic pregnancy using an ultrasound. He accepted that the symptoms of an ectopic pregnancy and an ongoing miscarriage overlap, and that the plaintiff’s symptoms were consistent with both diagnoses.
Dr Bodulkar stated that he would have discussed the suspicion and risk to patient of an ectopic pregnancy with the plaintiff during this initial consultation. In particular, he believed that, when taking the plaintiff’s medical history, he would have explained that he was doing so due to her history of ectopic pregnancy. He accepted, however, that he did not make a note of this discussion, and that it would have been important to do so. Nonetheless, Dr Bodulkar maintained that he would have discussed the risk of an ectopic pregnancy with the plaintiff.
5:00pm – Fentanyl administered
6:00pm – Nursing note
8:10pm – Fentanyl administered
8:30pm consultation with Dr Bodulkar and Dr Menakaya
The Progress Notes
The Progress Notes for this examination, which were recorded by Dr Bodulkar, indicate that on a physical examination, the plaintiff did not have an “acute abdomen” (that is, she did not display guarding rigidity or tenderness). The plaintiff’s pulse rate was 87 and her blood pressure was 120/64. The notes describe the plaintiff as “stable”. The bedside ultrasound was “unremarkable”, but indicated the presence of a left corpus luteum (a physiological finding in pregnancy or menstruation which can cause pain).
The Progress Notes also record that there was a “D/W [discussion with] patient #DD: ongoing miscarriage / PUL [pregnancy of unknown location]”. Under the heading “Plan”, the notes state that the plaintiff’s hCG levels should be tested and that if hCG levels are decreasing, the patient may be discharged home.
The plaintiff’s evidence
The plaintiff recalled that Dr Menakaya performed a physical examination of her during this consultation.
The plaintiff gave evidence that during this consultation, Dr Bodulkar and Dr Menakaya explained to her that her pain was likely the result of an ovulation issue. She said that it was explained that the ultrasound had not identified where the pregnancy was. She recalled a discussion about her differential diagnoses, which she understood included a miscarriage or a pregnancy of unknown location. The plaintiff recalled the possibility of a pregnancy of unknown location being explained, but she did not recall being told that she might be having an ectopic pregnancy. She also did not believe that the plan for her treatment was discussed.
In relation to her pain levels at the consultation, the plaintiff gave evidence that she informed Dr Menakaya that she was experiencing pain on her left side, similar to the pain experienced during her ectopic pregnancy in 2016. In cross-examination, the plaintiff accepted that she had told Dr Menakaya and Dr Bodulkar that her pain had decreased after taking Fentanyl.
Dr Bodulkar’s evidence
Dr Bodulkar gave evidence that the 8:30pm consultation occurred because the plaintiff had complained of increased pain.
Dr Bodulkar gave evidence that the plaintiff’s observations were stable. He maintained that the absence of tenderness in the abdomen indicated that the plaintiff’s pain had subsided. He explained that the plan for the plaintiff was made on the basis that the pain had subsided. He acknowledged that it was possible that the plaintiff’s pain had been reduced by the Fentanyl, which had been administered 20 minutes before the consultation. He could not say whether he was aware at the time of the consultation that the plaintiff had recently been administered pain medication. However, he explained that the consultation had been arranged because the plaintiff was complaining of recent pain, and was requiring more painkillers.
Dr Bodulkar agreed that, because an ectopic pregnancy carried a greater risk to the plaintiff than miscarriage, he would have been anxious to rule out a diagnosis of an ectopic pregnancy. He acknowledged that in light of the plaintiff’s high risk of ectopic pregnancy, it would be important to make a note if the plaintiff was informed of this risk. He accepted that no such note was made, but could not say whether the absence of such a note from the medical records indicated that the plaintiff was not informed of this risk.
Dr Bodulkar explained that the plan for the plaintiff’s treatment should be read in light of the circumstances in which it was made – in particular, that the plaintiff had been admitted at high risk of ectopic pregnancy. He noted that the plan was also made on the basis that there had been no ultrasound findings, the plaintiff’s vital observations were stable, and she exhibited minimal tenderness upon physical examination. He also explained that the plan did not necessarily need to be followed if the plaintiff’s circumstances changed.
Dr Menakaya’s evidence
Dr Menakaya gave evidence that the plaintiff was admitted in order for her to be observed and for additional tests to be conducted, for the purpose of reaching a probable diagnosis. Noting an ectopic pregnancy had not been located on the previous ultrasound, he accepted that it was important that he check for other signs of that condition.
Dr Menakaya gave evidence that he had consulted the medication chart, and knew that the plaintiff had taken Fentanyl, but he was not aware that the administration of the drug had occurred just 20 minutes before the consultation. He acknowledged that the pain medication could have been a “confounding factor” in his examination of the plaintiff.
Dr Menakaya explained that the ultrasound revealed a corpeus luteum in the plaintiff’s left ovary, which he considered was the likely cause of the plaintiff’s pain. The ultrasound did not show any increasing blood in the plaintiff’s abdomen. Dr Menakaya noted that an ultrasound is the best available tool to identify an ectopic pregnancy, but acknowledged that the possibility of an ectopic pregnancy could not be excluded based only on ultrasound results. He said that this was the reason the plaintiff was kept overnight for continued monitoring of her symptoms and other parameters. He also acknowledged that left sided pain was also consistent with an ectopic pregnancy. Dr Menakaya accepted that a miscarriage or a corpus luteum each carried less risk than an ectopic pregnancy, and that if the pregnancy was ectopic, the plaintiff was in grave danger.
Dr Menakaya gave evidence that his normal practice would be to talk to and examine the plaintiff, discuss his findings and discuss her options, including advising her that an ectopic pregnancy was one of the potential differential diagnoses.
Dr Menakaya initially said that whilst he would have advised the plaintiff that she was potentially suffering from an ectopic pregnancy, he did not believe he would have advised the plaintiff that an ectopic pregnancy would result in her losing her remaining tube, as further assessment was needed at that time. He also later clarified that he would not have discussed the risks of ectopic pregnancy and death with the plaintiff before she had been diagnosed with that condition.
Dr Menakaya stated that, during this consultation, he was not able to exclude a tubal ectopic pregnancy, and that this possibility made it too risky to send the plaintiff home at that time. However, he said that while that possibility continued on 1 August 2019, the “parameters changed”. He was not asked to explain which parameters he was referring in this answer.
11:10pm – Fentanyl administered
The medication record states that the plaintiff was administered an additional 25mg of Fentanyl at 11:10pm. Nurse examination at 1:45am on 1 August 2019
In the entry for 1:45am on 1 August 2019, “Nurse Xu” recorded that the plaintiff was “alert and orientated”, and that the plaintiff was “given Fentanyl as charted” with good effect. Nurse Xu was not called to give evidence.
Nurse examination at 5:30am on 1 August 2019
The plaintiff’s evidence
Nurse examination at 7:15am on 1 August 2019 The nursing notes
The plaintiff’s evidence
Nurse Dansby’s evidence
In oral evidence, Nurse Dansby clarified that her assessment of the plaintiff’s MEWS score being 0 indicates that all of the plaintiff’s vital signs were “within range” at that time
Nurse Dansby could not recall whether or not the plaintiff told her she was in “severe pain” at this time, but gave evidence that if the plaintiff had so reported, she would have recorded it in her notes. Similarly, Nurse Dansby said that if the plaintiff was curled up in a ball, in the foetal position, or if the plaintiff had reported that she knew she had an ectopic pregnancy and required surgery, these observations likewise would have been noted. Nurse examination at 10:10am on 1 August 2019 The plaintiff’s evidence
The plaintiff gave evidence that on the morning of 1 August 2019, she had a discussion with nursing staff concerning her pain levels. She recalled telling the nurse that she was “still in pain”. The plaintiff said that the nurse asked her to rate her level of pain out of ten, with one being a low level pain and ten being an extreme level of pain. The plaintiff gave evidence that she rated her pain as being “6 out of 10”. The plaintiff recalled that she was given paracetamol, which she said had “some effect”. The plaintiff gave evidence that her pain was severe when she asked for paracetamol.
The nursing notes
The nursing note dated 10:10am on 1 August 2019 recorded as follows: Bloods requested in notes however no blood forms given. Blood taken and sent. Paracetamol given as [incomplete]. Pt states 6/10 pain. Nurse Dansby’s evidence
In oral evidence, Nurse Dansby said that paracetamol was given to the plaintiff at this time to manage the plaintiff’s pain. She accepted that the plaintiff “said she was in pain”. This was Nurse Dansby’s final interaction with the plaintiff.
11:30am consultation with Dr Bodulkar Progress Notes
The Progress Notes for the 11:30am consultation were completed by Dr Bodulkar. The notes record that the plaintiff was admitted for “DD” [differential diagnosis], and lists “spontaneous miscarriage ongoing, PUL [pregnancy of unknown location] and ectopic” as possible diagnoses. The notes record that the plaintiff is at “high risk of ectopic [pregnancy] in view of past history”.
The Progress Notes further record that “[per vaginum] bleeding settled down from 7pm till now. 3 pads changed with very minimal loss” and “abdo pain is less now and has taken only paracetamol”. The Progress Notes also record that the plaintiff’s hCG levels had fallen from 2738 on 31 July 2019 to 2071 on 1 August 2019.
The Progress Notes state that on examination, the plaintiff was “stable/comfortable” and her pulse, blood pressure and oxygen saturation levels were within normal range. The results of a physical examination are described as “soft” with “no guarding/ rigidity/ tenderness. Nil acute abdomen”.
The Progress Notes also contain a list of issues discussed with the plaintiff. This list includes, among other things, “unplanned pregnancy”, “improved symptomology”, a social work referral (which is recorded as “declined”), “good family support”, and “plan after d/w [discussion with] consultant”.
The plaintiff’s evidence
As noted above, at 10:10am on 1 August 2019, the plaintiff had told Nurse Dansby that her pain was a 6 out of 10, and was given paracetamol to treat the pain. The plaintiff said that at the time of her consultation with Dr Bodulkar, the pain had been reduced, “not [by] a huge amount, but enough that I could straighten up my legs in the bed”.
The plaintiff gave evidence that Dr Bodulkar told her that her pain levels were going down, and that she could go home. She said that Dr Bodulkar told her that if she was “in any more pain [she] would come back to hospital”. The plaintiff maintained that there were no discussions about the possibility of the pregnancy being ectopic, nor was there any discussion about other options for investigating the possibility of an ectopic pregnancy whilst in hospital.
The plaintiff gave evidence that she was upset about being told that she was being discharged because she had a small child at home, and was worried that she could not manage the pain with Panadol and Nurofen. She said that she was worried that she was going to be by herself if the ectopic pregnancy ruptured. She explained that she was still “convinced [she] was having an ectopic pregnancy”. She acknowledged that she did not raise these concerns with Dr Bodulkar.
Madeleine Hartfield’s evidence
The plaintiff’s sister, Madeleine Hartfield, went to the hospital on 1 August 2019. She recalled that she was with the plaintiff during a consultation at this time with a male doctor.
Madeleine Hartfield recalled that the male doctor asked the plaintiff if she needed home support, a counsellor or psychiatric care prior to discharge. She did not otherwise recall what had been said. She said that the plaintiff was not holding her stomach when she was examined, and did not recall whether the plaintiff was grimacing in pain at the time of the examination.
Dr Bodulkar’s evidence
Dr Bodulkar gave evidence that, at the time of this consultation, the plaintiff’s hCG levels had reduced by 24 – 25% since the previous day, constituting a “significant fall” in the hCG levels. The plaintiff also suffered no ongoing per vaginum bleeding at this time.
Dr Bodulkar said that he performed a physical examination. He reported that the plaintiff’s vital signs were stable, and that her abdomen was soft and no longer tender. Dr Bodulkar noted that “abdo pain is less now”, with that pain being managed with paracetamol. On this basis, Dr Bodulkar formed the view that the plaintiff’s pain had started to improve, and that she was “comfortable”
Dr Bodulkar gave evidence that, at this point, he diagnosed the plaintiff as suffering from an ongoing spontaneous miscarriage, although he could not rule out a pregnancy of unknown location or ectopic pregnancy due to the plaintiff’s medical history. Dr Bodulkar gave evidence that the standard treatment for a suspected miscarriage is to “wait and see how the natural process of miscarriage happens” and that hospital admission is generally not required.
When referred to his notation that reads “discuss with patient”, Dr Bodulkar gave evidence that this “probably” means that he informed the plaintiff of her falling hCG levels, and discussed the improvement of her symptomology. He further gave evidence that he referred the plaintiff to a social work service, which she declined.
Dr Bodulkar gave evidence that if the plaintiff had complained of severe pain during this consultation, he would have recorded that complaint in his notes. He similarly would have recorded if the plaintiff had been curled up in a foetal-like position. He did not recall the plaintiff looking pale or clenching her fists.
12:00pm consultation between Dr Bodulkar and Dr Menakaya Progress Notes
The entry in the Progress Notes for 12:00pm on 1 August 2019 records that Dr Bodulkar had a consultation with Dr Menakaya concerning the plaintiff’s treatment.
The Progress Notes record that the outcome of this consultation was a plan for the plaintiff to be discharged home, with “outreach follow up”, to have her hCG levels tested the following week, and to follow up with the Emergency Department if there were any concerns.
Dr Menakaya’s evidence
Dr Menakaya gave evidence that he had no recollection of discussing the plaintiff with Dr Bodulkar, though accepted that such a conversation must have taken place, given the reference to the conversation in Dr Bodulkar’s notes.
Dr Menakaya could not recall whether Dr Bodulkar informed him that the plaintiff had reported suffering 6 out of 10 pain. However, he also gave evidence that if he had been aware of the plaintiff’s pain score, he would “likely” have elected to examine the plaintiff himself. Further, had he known of this pain score, he said that he would not have advised that the plaintiff be discharged.
Dr Bodulkar’s evidence
12:25pm consultation
Progress Notes
The plaintiff’s evidence
Madeleine Hartfield’s evidence
Dr Bodulkar’s evidence
Dr Bodulkar gave evidence that during this consultation, he informed the plaintiff of Dr Menakaya’s “patient plan”. Dr Bodulkar said that he reminded the plaintiff to be alert to any new or worsening symptoms. Dr Bodulkar explained that whilst he had “red flags” in his notes, he would not have used that expression with the plaintiff. When asked what “red flags” referred to, Dr Bodulkar said: So it is for the patient's clinical condition. So in this case, if the patient has come with pregnancy, abdominal pain and vaginal bleeding then we will tell them those relevant red flags as maybe increase bleeding, increased pain, or if this person was probably high risk for ectopic, then we'll say that if you have dizziness or if you pass away then someone has to bring her. [T191.20]
Dr Bodulkar gave evidence that he did not recall the plaintiff looking pale or clutching her abdomen during this consultation. He also did not recall the plaintiff telling him that she was having an ectopic pregnancy. He gave evidence that if any of these things had occurred, he would have recorded that in the notes.
Discharge at 1:30pm The nursing notes
The nursing notes record that the plaintiff was transferred to the ward at around 12:25pm, and that her vital signs were stable at that time.
The nursing notes entry for 1:30pm records that the patient stayed in the ward for approximately one hour, and was discharged home. Those notes further record that the plaintiff “walking outside ward to wait for husband to pick up”. The author of that record was not called to give evidence.
The plaintiff’s evidence
As noted above, the plaintiff was discharged at around 1:30pm on 1 August 2019. She said that her pain levels at this time were about the same level as when she saw Dr Bodulkar at 12:25pm on 1 August 2019. The plaintiff said that when she left the hospital, her pain was still on the left side, and she was “hunched over” as she walked to the car.
In her further cross-examination in May 2024, the plaintiff confirmed that, shortly before her discharge from hospital, she informed Dr Bodulkar that she suspected she was experiencing an ectopic pregnancy, and that if she was to experience a rupture while at home, she was concerned that she would not know how to manage it. She said that Dr Bodulkar told her to return to the hospital should her pain increase. The plaintiff agreed that she was aware of the implications of a rupture, having experienced a previous rupture in 2015.
Madeleine Hartfield’s evidence
Madeleine Hartfield gave evidence that when they left hospital, the plaintiff remained in pain. She said that she could not recall if the plaintiff was grimacing, but she said that the plaintiff “had a look on her face that she was in pain” and was holding her abdomen. She did not recall having to assist the plaintiff in walking to, or getting into, the car.
Madeleine Hartfield said that she was concerned about the plaintiff being discharged, but she did not recall saying anything to the plaintiff or to medical staff about her concerns.
Discharge Summary
The plaintiff returns home
Madeleine Hartfield drove the plaintiff home. Madeleine Hartfield described the plaintiff as remaining in pain once they arrived home, with “a grimace on her face, holding her stomach, hunched over, pale in her skin”.
The plaintiff walked up the stairs to her house and went straight to her bedroom where she lay down with a heater pack and her electric blanket. She took some more pain relief (Panadol) and stayed in bed.
At some point during the afternoon, the plaintiff’s then husband (who had been deployed overseas at the time) returned home. The plaintiff’s sister then left the plaintiff with her husband.
At around 6:00pm – 7:00pm on the evening on 1 August 2023, while at home, the plaintiff’s pain increased. She began sweating, which the plaintiff explained, occurs when she is in significant pain.
In her further cross-examination, the plaintiff accepted that it was “likely” that she turned her mind to the prospect of returning to the hospital when her pain increased, but did not do so. She took some paracetamol and “just laid on [her] side to just try and deal with it”. She recalled that the pain she was experiencing at this time was not as severe as the pain she experienced during the 2015 rupture, and said that she decided to “stay at home and see what happens”. After 7:00pm, the plaintiff said that she was “on and off sleeping”, sleeping for five or ten minutes and then reshuffling to get comfortable, before then dozing in and out.
At approximately 2:00am on 2 August 2023, the plaintiff experienced a sharp, sudden onset of acute pain in her left tip shoulder as well as vaginal bleeding. She gave evidence that this pain was “the exact same pain” as the pain she experienced during her previous ectopic pregnancy, but on the opposite side. She went to her ensuite bathroom suffering a “vomiting dizzy spell”.
The plaintiff agreed that this was a very significant change in her symptoms. She did not wake up her husband. She said that she was terrified about going in and having further surgery, and potentially dying. She said that she knew that these symptoms were the symptoms of an ectopic pregnancy.
The plaintiff gave evidence that she then “tried to go back to bed with some more pain relief, but the pain was so excruciating that [she] ended up waking up [her] ex-husband to take [her] to the hospital”. She said that this was around 5:00am. The plaintiff said that they had to wait for her parents to wake up so that they could “tag team” with her daughter.
The plaintiff said that after waking at 2:00am until she woke her husband at 5am, she was “preparing [her]self”, “digesting what was happening” and “waiting for a reasonable time to call someone … to come and look after [her] child so [she] could go to the hospital”. She said she had “never felt so much fear”. She accepted that if she had been thinking rationally, she would have called an ambulance immediately upon the onset of this pain. However, she described experiencing an adrenaline rush and that it felt like an “out of body” experience. She was also concerned about disturbing her parents, sister and husband during the night.
The plaintiff’s re-admission and surgery on 2 August 2019
The plaintiff returned to the Hospital on 2 August 2019 at 6:38am, where she presented to the Emergency Department with abdominal pain, per vaginum bleeding, and left shoulder pain. At about 7:45am, she was reviewed by a nurse from the Emergency Department, who conducted a bedside ultrasound which identified free fluid in the plaintiff’s pelvis. She was again reviewed at 8:05am and then reviewed by the attending obstetrics and gynaecological registrar at 8:20am. The attending registrar diagnosed her with a ruptured ectopic pregnancy and referred her to surgery.
The plaintiff was re-admitted at 9:38am and a laparoscopic left salpingectomy was conducted to remove her left fallopian tube. As the plaintiff’s right fallopian tube had been removed at the time of her first ectopic pregnancy in 2015, this procedure left the plaintiff unable to have further children naturally.
The plaintiff was discharged from Hospital on 3 August 2019.
Subsequent events
The plaintiff took personal leave following the surgery from 31 July to 2 August 2019. She then took a further 11 days off work using recreational leave. She gave evidence that this occurred by way of a verbal agreement with her supervisor.
On 7 August 2019, the plaintiff attended her general practitioner (GP) at Ochre Health Casey. She reported being upset about the removal of her left fallopian tube and having difficulty sleeping since the events on 2 August 2019, and was prescribed melatonin. The plaintiff gave evidence that the melatonin provided some assistance.
The plaintiff returned to her GP two days later, reporting increased per vaginum bleeding and clots but reported that she was not experiencing pain, fevers or dizziness. She again expressed distress about her treatment at Calvary Hospital and particularly concerning the decision to discharge her on 31 August 2019 even though an ectopic pregnancy had not been ruled out.
In September 2019, the plaintiff was referred to Dr Felicity Brims and organised a fertility consultation for November that year. She subsequently cancelled the appointment.
The plaintiff gave evidence that, following her second ectopic pregnancy, her marriage started to break down. The plaintiff gave evidence that although the 2019 ectopic pregnancy and its consequences were not the only factors in the deterioration of her marriage, “it certainly was the tipping point”. In February 2020, the plaintiff began seeing a psychologist, Ms Izzard, regarding her intention to end her marriage. In her evidence, the plaintiff explained that she was seeking an expert opinion on how the separation would effect their daughter.
The plaintiff gave evidence that, in August 2020, around the time of the one year anniversary of the 2019 ectopic pregnancy, she experienced a sharp decline in her mental health. She described herself as being “highly emotional” and “sobbing inconsolably”. She recalled taking one week off work as a result.
In December 2020, the plaintiff began considering freezing her eggs, and was referred by her GP to Dr Brims. After consulting Dr Brims about the prospects of successful egg freezing and IVF, the plaintiff began this process in mid-late 2021 and was hoping to commence IVF in 2024.
Dr Brims provided a report dated 6 July 2021 and also gave evidence in the proceedings. In brief, her evidence was that as a result of the plaintiff’s bilateral salpingectomy, it is no longer possible for her to conceive naturally and IVF is now the only option available to the plaintiff that would allow her to conceive. Dr Brims expressed the view that the plaintiff “has a good chance of falling pregnant with IVF” in view of her age, egg count and past history of successful conceptions. The success rate per embryo transfer is 30%, with 80% of women under 40 falling pregnant after two rounds of IVF.
The medical evidence concerning the diagnosis and treatment of the plaintiff
The three experts
The plaintiff obtained three expert reports from Associate Professor Izzo, and a report from Professor Hyett. Although obtained at the request of the plaintiff, Professor Hyett’s report was tendered by the defendant, without objection from the plaintiff.
In response to the expert evidence obtained by the plaintiff, the defendant obtained two expert reports from Dr Vincent Lamaro, a gynaecologist and endoscopic surgeon.
Dr Lamaro is the Head of the Department of Gynaecology at St Vincent’s Hospital in Sydney, and has held this position for over a decade. He is also a senior lecturer at the University of New South Wales and the University of Notre Dame, each for over 15 years.
Professor Hyett is a Professor of Obstetrics and Gynaecology at Western Sydney University. He has published over 300 research papers on foetal medicine. He is also a clinical academic working in obstetrics and maternal foetal medicine at Liverpool Hospital, where he runs weekly clinical sessions on antenatal and intrapartum care, and ultrasound and foetal medicine including the diagnosis of foetal abnormalities.
A curriculum vitae for Associate Professor Izzo was not tendered. However, in cross-examination, Associate Professor Izzo indicated that has been in practice for 35 years, has been on the college examination boards and has taught registrars over that period. He said that he was still in clinical practice, and still performed laparoscopies, salpingotomies and salpingectomies as a part of this clinical practice. Associate Professor Izzo described himself as a “generalist” and acknowledged that he did not have the qualifications that Professor Hyett has in pregnancy and early pregnancy. Associate Professor Izzo’s First Report
In his first report, dated 1 October 2020, Associate Professor Izzo observed that the plaintiff had had three miscarriages between 2013 and 2015 followed by an ectopic 1 pregnancy in 2015. He further noted that the incidence of an ectopic pregnancy in a person who has had a previous ectopic pregnancy rises from 1–2% to 10%.
Associate Professor Izzo was of the opinion that this risk should have been factored into the plaintiff’s management, and that the plaintiff “should not have been allowed to leave hospital”. He continued: I accept that one may find issues with medical management which is usually methotrexate in that it could not be absolutely determined that this was not an intra uterine pregnancy though the other criteria were met in that she was haemodynamically stable and the hCG concentration was not high. The case for laparoscopy is much stronger. With a pregnancy of unknown origin, a pain in the left lower quadrant of the abdomen, a previous ectopic pregnancy on the other side and a stable patient with no evidence of peritonism which equals intra peritoneal bleeding, there should have been an urgency to carry out a laparoscopy in an effort to salvage the tube. The operation of choice should have been a salpingostomy.
Associate Professor Izzo’s Second Report
In his supplementary report dated 10 November 2021, Associate Professor Izzo confirmed his opinion that the plaintiff’s management by the Hospital fell below the standard of care expected of a public hospital operating in Canberra at that time.
In particular, he explained that in view of the plaintiff’s symptoms, namely, bleeding, pain in the lower abdomen, “more so on the left than on the right”, and with no evidence of an intrauterine pregnancy or gestational sac on an ultrasound at five weeks gestation, the pregnancy was one of unknown origin. Associate Professor Izzo stated that it should have been recognised that there was a “high index of suspicion” for an ectopic pregnancy, particularly given that the plaintiff had previously had an ectopic pregnancy and the plaintiff’s tenderness was localised on the side of her remaining tube.
Associate Professor Izzo expressed the view that the plaintiff should have been kept in hospital for an early diagnosis. He agreed that the administration of methotrexate would
1 The reference to three miscarriages appears to be an error. As described above, the plaintiff had previously suffered two miscarriages, followed by the first ectopic pregnancy. not have been appropriate (both because the pregnancy was wanted and because there was pain and bleeding), but stated that a diagnostic laparoscopy should have been performed “as a matter of urgency”. He explained that a diagnostic laparoscopy would have enabled a diagnosis to be made of an ectopic pregnancy in the left tube, and would also have enabled treatment, namely, a salpingostomy for the removal of the portion of the tube where the ectopic pregnancy was located (in contrast to a salpingectomy, where the whole of the tube is removed).
Associate Professor Izzo again reiterated his opinion that had this procedure occurred on the plaintiff’s first presentation, “it is more likely than not that the tube could have been salvaged”, adding “I believe very strongly that had the appropriate treatment been done on the first hospital admission, there would have been no need to remove the tube”.
Associate Professor Izzo acknowledged that a salpingostomy “does increase the risk of a further ectopic in a subsequent pregnancy”, from 10% to 20%. He commented that this leaves “80% that an ectopic will not reoccur”, whereas the removal of the plaintiff’s second fallopian tube now means that the plaintiff must have IVF to achieve another child. He concluded “the management that [the plaintiff] received is not management which would be considered appropriate by one’s peers, neither now nor in 2019”.
Dr Lamaro’s First Report
In his first report, dated 13 February 2022, Dr Lamaro expressed the opinion that there was “no indication or justification to perform anything other than expectant management (ie observation and surveillance with beta-hCG ultrasound and clinical reviews)” and that “expectant management was entirely appropriate” (emphasis in original).
Dr Lamaro explained that “while … in hindsight [the plaintiff] had a left ectopic pregnancy, the attention given to excluding this diagnosis and the features of her presentation … could easily fit with a miscarriage”. In this respect, he noted that the plaintiff had a history of miscarriage, as well as a history of ectopic pregnancy.
By reference to relevant guidelines, including those produced by the National Institute for Health and Clinical Excellence (NICE) and the Royal College of Obstetricians and Gynaecologists (RCOG), Dr Lamaro maintained that surgery by way of a laparoscopic salpingostomy should not have been performed at the plaintiff’s first admission, and that discharge was appropriate. He stated: Within the guidelines, as long as a patient is without pain, only experiencing light bleeding, and no location for pregnancy identified on ultrasound, in association with declining beta-hCG levels, [and noting a previous miscarriage history] it would be entirely appropriate to discharge such a patient.
Dr Lamaro further stated that provided the patient was assessed as having capacity to understand the potential diagnoses and risks, the patient has sufficient home support structures and the hospital were in close proximity, it is “very reasonable” to discharge the patient, and it is the current practice at St Vincent’s Hospital to do likewise.
Dr Lamaro explained that if the plaintiff had remained in hospital, without any change in symptoms, there would be no further occasion for hCG testing or ultrasounds; “only a symptom of pain – which would have to be identified by the patient – would activate the next decision process” (emphasis added).
Bearing in mind the potential risks and complications of a laparoscopic surgery and a general anaesthetic, Dr Lamaro was adamant that it would not have been appropriate to perform a surgical procedure by way of a laparoscopic salpingostomy at the plaintiff’s first admission. He stated: As discussed above, based on [the plaintiff’s] specific clinical presentation, the resolution of symptoms during observation period, the decline in beta-hCG by 26.2% from 2738 to 2021 [sic] within 24 hours and a completely negative ultrasound, it would not be appropriate to perform surgery on a patient within that setting. Associate Professor Izzo’s Third Report
On 19 May 2022, Associate Professor Izzo provided a further report in response to the report of Dr Lamaro.
In that report, Associate Professor Izzo stated that he did not agree with Dr Lamaro’s opinion that expectant management was appropriate.
The RCOG guidelines
As noted above, Associate Professor Izzo and Dr Lamaro also cited RCOG guidelines in their respective reports; namely, Green-top Guideline 21 on the Diagnosis and Management of Ectopic Pregnancy.
Under this guideline, expectant management is recommended only for clinically stable patients with an ultrasound diagnosis of ectopic pregnancy and a decreasing hCG level of less than 1500. The guideline further states that systemic methotrexate should not be offered unless an ectopic pregnancy diagnosis is “absolutely clear” and a viable intrauterine pregnancy has been excluded. In all other circumstances, laparoscopic salpingectomy is the preferred treatment option under the guideline. However, the guideline provides that salpingostomy should also be considered if the patient has a history of fertility-reducing factors, including a previous ectopic pregnancy.
The conclave evidence
At the hearing on 13 September 2023, all three experts gave concurrent evidence via Audio-Visual Link.
In that evidence, the experts agreed that: (a) A previous ectopic pregnancy significantly increases the risk of a further ectopic pregnancy; (b) A rupture of a fallopian tube can be very dangerous to the pregnant woman, potentially resulting in death; (c) An ectopic pregnancy can result from an already damaged fallopian tube. Other potential causes include chromosomal abnormalities and contralateral ovulation; (d) The significantly increasing pain which the plaintiff described as having experienced at 7:00pm on 1 August 2019 would have been a matter of concern to those managing the plaintiff, if she had been under medical supervision at that time; (e) By the time of the plaintiff’s ultimate admission to hospital at 6:38am on 2 August 2019, there was little prospect of successfully performing a salpingostomy; (f) The plaintiff’s ectopic pregnancy did not result in a rupture of the fallopian tube in the sense of the tube becoming “open along its length”. Rather, there was bleeding within the fallopian tube which ultimately bled into the uterine cavity and abdominally. In other words, there was haemmoraghing within the layer of the tube, but not external to the tube.
Beyond these matters, there was no agreement between the three experts, although there was considerable consensus between Professor Hyett and Dr Lamaro.
In his oral testimony, Dr Lamaro maintained his view that neither a salpingostomy, nor a laparoscopy should have been performed at the first admission, and that expectant management was appropriate. He confirmed that this opinion was based on an assumption that the plaintiff was “pain free” at the time of discharge. In this respect, he clarified that there is a different between “residual discomfort” and pain, noting that “if someone say had a complete miscarriage they’re always going to have residual discomfort”.
Dr Lamaro was asked whether he was aware that 20 minutes before the 11:30am consultation, the plaintiff had been complaining of 6 out of 10 pain. He said that he had been informed of that fact after preparing his reports. When asked whether he agreed with the evidence of Dr Menakaya, who had said that he would not have discharged the plaintiff if he was aware that the plaintiff had complained of 6 out of 10 pain at 10:10am on 1 August 2019, Dr Lamaro responded: I think what I would be doing if a patient had 6 out of 10 pain I would reassess them and I’d examine them. Now, if I found them to have a soft non-tender abdomen, and they only had paracetamol for that day I’d talk to them about what they wanted to do. And we do this all the time. And some patients will say ‘Look, I’d like to go home, I know where to come back to and I’ll come back immediately. I’ve got support’, and others would say ‘Can I stay here another day?’ And I think either are appropriate.
Dr Lamaro confirmed that the patient should be given a choice about whether to remain in hospital: …. We would talk to her about the three possible – possible diagnoses which she’d had discussed with her – and determined – and I think they made comment that she had good home support and they – everything was in place for review as we would do with an ectopic, but if the patient wanted to stay or if I felt she needed to, I would – I would keep her.
The psychiatrists
Psychiatric expert evidence was adduced from three expert witnesses; Dr Antonella Ventura, Dr Stephen Allnutt and Dr Yvonne Skinner. Dr Allnutt was called by the plaintiff. Dr Ventura and Dr Skinner were called by the defendant.
Dr Allnutt is a forensic psychiatrist with over 25 years’ experience. He maintains both a public and private practice in New South Wales, having previously practised in Canada and New Zealand. He has published several academic publications and presented at various conferences in forensic psychiatry.
Dr Ventura is a psychiatrist with a Masters degree in forensic mental health. She has a special interest in post-traumatic stress disorder. Dr Ventura practices within both public and private settings in New South Wales. She is also an adjunct senior lecturer at the University of New South Wales.
Dr Skinner has practised as a forensic psychiatrist since 1985. She has maintained a clinical practice since 1987 and is the President of the Australian Academy of Forensic Sciences.
Dr Allnutt’s report
Dr Allnutt examined the plaintiff over audiovisual link on 10 February 2021, and subsequently prepared a report dated 16 February 2021 at the plaintiff’s request.
In this report, Dr Allnutt comprehensively summarised the plaintiff’s medical and life history. Dr Allnutt noted that the plaintiff had a happy childhood and stable employment. At the time of Dr Allnutt’s examination, the plaintiff was consuming alcohol infrequently and was not using illicit drugs. Prior to 31 July 2019, the plaintiff had never sought assistance from any mental health professionals, and denied suffering from any mental health conditions prior to that time. She has never been prescribed any psychiatric medications.
As at 31 July 2019, the plaintiff’s husband had recently been deployed to Papua New Guinea. She described her marriage, up until this point, as “happy”. Besides her husband’s absence, she reported suffering from no other significant stresses at this time. The plaintiff told Dr Allnutt that she had experienced three miscarriages and one ectopic pregnancy prior to 31 July 2019, but overall thought she was “emotionally and psychologically well” and reported no difficulties in attending to her daily activities.
The plaintiff reported taking two weeks off work following the surgery, before returning to her work. The plaintiff said that her attendance at work had been erratic due to episodic pain and vomiting associated with her menstrual cycle, which she has suffered since the surgery. The plaintiff told Dr Allnutt that her marriage had broken down. The plaintiff reported no other significant stresses in her life.
Dr Allnutt reported that: [The plaintiff] said, “It hit me twelve months after, in fact, in August last year”. She said there was a significant downturn in her mood at that stage, when she had to take two and a half weeks off work because she could not get out of bed. She said “I could have lost my life over this it dawned on me that I had put my faith in the medical profession”.
Dr Allnutt noted that there was “probably a downturn in [the plaintiff’s] mood at that time because it was the anniversary of the ectopic”, although he clarified that later in the interview, the plaintiff said that there had been a downturn in her mood, and her feelings of depression had started “almost immediately after the operation”.
Dr Allnutt noted that the plaintiff had reported feeling anxious, “going over the fact that she could have missed out on her child’s life and could have passed away herself”, and that she has since become more overprotective of her daughter.
The plaintiff also told Dr Allnutt that she had an angry and negative mood. She reported difficulty sleeping, fluctuating self-esteem, poor focus, diminished self-confidence and general irritability. These symptoms also worsened around the one-year anniversary of the surgery.
Dr Ventura’s report
Dr Ventura carried out an assessment of the plaintiff over audiovisual link on 13 December 2022, at the request of the defendant.
The plaintiff told Dr Ventura that her mental health declined following her second ectopic pregnancy as feelings of loss from her previous pregnancies “came flooding back”. The plaintiff told Dr Ventura that she became irritable, and blamed her husband blamed her husband for “what had happened, [for] being away and [for] not being able to advocate for her”. She reported experiencing nightmares in the months following the ectopic pregnancy, and said that ruminations over how she may have died and left her daughter without a mother made sleep difficult. She told Dr Ventura that she became emotionally distant from her daughter, but was still mindful of her daughter’s safety and how much time she spent with her.
Dr Ventura noted that the plaintiff returned to work two weeks after the ectopic pregnancy, but could not function at her normal levels for approximately six months. The plaintiff informed Dr Ventura that her mental health symptoms deteriorated around the one year anniversary of the surgery, and that this deterioration lasted for approximately two months.
The plaintiff told Dr Ventura that her mental health has since improved, but her fear of loss had recently been reignited as she had entered a relationship with a man wanting children. She continues to feel emotionally fragile when children and pregnancies are raised, and sometimes becomes tearful and distressed. Dr Ventura observed the plaintiff become tearful when discussing her pregnancies in her examination.
In Dr Ventura’s view, the plaintiff’s post-traumatic stress disorder “was caused by the trauma of suffering from an ectopic pregnancy, the possible lethality of the condition and [the plaintiff’s] marked reduction in fertility”. Although the post-traumatic stress disorder was a “new condition” following the 2019 ectopic pregnancy, the plaintiff’s earlier miscarriages and ectopic pregnancy contributed to the condition. Accordingly, Dr Ventura considered the likely date of onset of the condition to be 31 July 2019.
On the basis of her examination, Dr Ventura expressed the view that the plaintiff is “in remission” and no longer meets the diagnostic criteria for the diagnosis of post-traumatic stress disorder.
Dr Ventura considered the prognosis of the plaintiff’s post-traumatic stress disorder to be “good”, nothing that the plaintiff had “achieved a reduction in symptomology”. However, she also considered that the plaintiff’s symptoms may be reignited and there is a possibility of relapse if the plaintiff suffered from further obstetrics or gynaecological complications in the future.
Although Dr Ventura considered the plaintiff to be in remission for her post-traumatic stress disorder, she also expressed the view that the plaintiff continues to struggle with a “complex grief reaction” and says that the plaintiff would benefit from grief counselling. She recommended approximately 10 sessions of psychological therapy.
The admissibility of the oral evidence of Dr Allnutt and Dr Ventura
Dr Allnutt and Dr Ventura were scheduled to give evidence by way of AVL on the afternoon of the fourth day of the hearing.
Fifteen minutes before the experts were due to give evidence, counsel for the defendant advised the Court that the defendant no longer relied on the report of Dr Ventura, and indicated that Dr Allnutt was no longer required for cross-examination. In response, Senior Counsel for the plaintiff indicated that he still wished to call oral evidence from Dr Allnutt. Counsel for the defendant then objected to the plaintiff calling any further evidence from Dr Allnutt or from Dr Ventura.
The timing of the defendant’s objection was regrettable. I was informed that the defendant had first notified the plaintiff of this intention less than half an hour before the matter was first raised in Court. Both experts were on the line and ready to give evidence at the time that the Court was required to rule on the objection.
The basis of the defendant’s objection was said to be a failure to comply with r 1243 of the Court Procedure Rules 2006 (ACT), which provides that the oral evidence in chief of an expert is not admissible unless an expert report has been served in accordance with r 1241 of the Rules, which also requires that the report contain the substance of the matters sought to be adduced in evidence. The defendant contended that the plaintiff should not be permitted to supplement the expert evidence in the report with further oral evidence from the expert in contravention of this rule. Further, counsel for the defendant noted that Dr Allnutt had only diagnosed the plaintiff as suffering from an adjustment disorder. She noted that the plaintiff had also claimed damages for post-traumatic stress disorder in her Amended Statement of Claim. Counsel for the defendant submitted that the calling of any further oral evidence would deny procedural fairness to the defendant.
Senior Counsel for the plaintiff clarified that he did not seek to adduce evidence from Dr Allnutt that was inconsistent with his previous report. The plaintiff’s Senior Counsel further indicated that Dr Allnutt had had a further audio-visual meeting with the plaintiff the previous week, and that Dr Allnutt’s evidence would be that the plaintiff’s condition had improved. Finally, Senior Counsel foreshadowed that he proposed to ask Dr Allnutt about the plaintiff’s alternative case; namely, “whether the plaintiff’s fear of dying and leaving her child without a mother … has been a major contributor to the condition which he has diagnosed”.
The defendant’s counsel indicated that she was particularly concerned that the plaintiff had had the benefit of a further examination, which the defendant had not been put on notice of. There was merit in this complaint. The plaintiff’s legal representatives should not have had their expert examine the plaintiff without then providing a supplementary report notifying the defendant of the expert’s findings.
The conclave evidence
In her oral evidence, Dr Ventura confirmed that she had made a diagnosis of post-traumatic stress disorder which she considered had resolved by 13 December 2022. By reference to the Diagnostic and Statistical Manual of Psychiatric Disorders (American th Psychiatric Association, 5 ed, 2013) (DSM-V) , she explained that she was of the view that the plaintiff met criteria (a) of that diagnosis “because at the time she feared for her life and she also suffered a number of other symptoms [as set out in her report]”.
Dr Allnutt similarly confirmed that he had expressed the opinion that the plaintiff “manifested a constellation of symptoms consistent with a persistent depressive disorder with associated post-traumatic symptoms”. When asked to explain the difference between his diagnosis and that of Dr Ventura, Dr Allnutt responded: … the symptoms of post-traumatic stress disorder, what we call the trauma and stressor related conditions which include post-traumatic stress disorder and chronic adjustment disorder and depressive conditions as well as anxiety disorders, can all overlap. It can make distinguishing one condition from another difficult diagnostically and as clinicians we can often disagree. So, you know, I think that from our perspective, I think we would agree that she suffered a diagnosis or psychiatric condition with symptoms of depression, anxiety and post-traumatic stress. Some of us would diagnose post-traumatic stress disorder, some would diagnose persistent depressive disorder with associated post-traumatic stress symptoms. A diagnosis of chronic adjustment disorder is also applicable which is another trauma and stressor related disorder.
Dr Ventura agreed. She explained that she was “making a retrospective diagnosis of post-traumatic stress disorder and I thought that was in remission”. She continued: I agree with my colleague in saying that we both identified symptoms of depression and trauma and I sort of put an emphasis on the trauma and I conceptualised the depressive symptoms as part of the PTSD and the prolonged grief and Dr Allnutt had a slightly different interpretation, but I don’t think we’re drastically different in opinion.
The two experts also agreed that the aetiology of the plaintiff’s psychiatric condition was the experience of fearing for her life during the 2019 ectopic pregnancy, although Dr Allnutt identified two further causes: namely, the experience of losing her fallopian tube and having a traumatic pregnancy generally. Both experts agreed that a materially contributing factor to the plaintiff’s condition was her being fearful for her life. Both experts agreed that a common symptom of post-traumatic stress disorder is “incident-specific nightmares”, or “nightmares symbolic of the incident”.
Both experts also agreed that, had the plaintiff been in hospital at 7:00pm on 31 July 2019 when her pain initially increased, and assuming that an urgent laparoscopy would have been carried out in controlled circumstances, the plaintiff would not have feared for her life, and likely would not have sustained a trauma related condition.
Dr Skinner’s reports
Dr Skinner provided two reports; one dated 22 March 2024, and a supplementary report dated 29 April 2024. Both reports were tendered by the defendant.
In preparing the reports, Dr Skinner did not examine the plaintiff. However, she did have access to the transcript of the evidence of the plaintiff, Dr Allnutt and Dr Ventura’s evidence, and to the plaintiff’s clinical notes from Calvary Hospital.
Dr Skinner’s first report
In her first report, Dr Skinner described the distinction between grief and post-traumatic stress disorder; namely, that while the pre-dominating symptoms of a normal grief reaction are depression and intense sadness, the pre-dominating symptoms of post-traumatic stress disorder are intrusive re-experiencing of the traumatic event, avoidance of reminders, alterations in cognition, and anxiety. She explained that post-traumatic stress disorder is considered resolved once the patient no longer meets the diagnostic criteria for the condition, and may be considered in remission when symptoms are still present but have decreased in severity. Dr Skinner also clarified that a person may exhibit symptoms of a psychiatric condition without meeting the diagnostic criteria for that condition.
Dr Skinner was then asked to consider the following hypothetical circumstances: The plaintiff’s physical condition developed and progressed in the hospital rather than at home following her discharge on 1 August 2019; While at the hospital, the plaintiff recognised she might be experiencing a rupture which was potentially fatal; While at the hospital, the plaintiff would have suffered increased pain and come to the realisation her medical condition was not going to resolve spontaneously and if she did not have surgery, she could die; The plaintiff was told at the hospital that she could die and she was going to lose the pregnancy and likely lose her fiertillity [sic]; The plaintiff was processed for and underwent surgery on an urgent basis.
Dr Skinner found that, even in the above hypothetical, the plaintiff still would have suffered psychological sequelae. In forming this view, Dr Skinner concluded that, if the plaintiff had remained in hospital, she “might have missed her family … and general comforts of home”. Further, Dr Skinner also concluded that the plaintiff would still have been aware of her risk of death, even in a hospital setting, although she may have been given stronger pain relief which may have reduced this anxiety. Dr Skinner found that the plaintiff would have experienced grief at the loss of her pregnancy, her fallopian tube and subsequently, her relative fertility.
Dr Skinner did not believe it was possible to conclude that the plaintiff would not have sustained a psychiatric injury had she not been discharged from hospital on 1 August 2019. She provided two reasons for this conclusion. First, the plaintiff said in evidence that she was terrified of having surgery and dying, and that prospect would have remained in hospital. Second, she would have suffered “emotional trauma” from the loss of her pregnancy and loss of her fallopian tube even if she was in hospital at the time her pain increased.
Dr Skinner’s supplementary report
For the preparation of her supplementary report, Dr Skinner had access to the reports of Dr Allnutt, Dr Ventura and Dr Lamaro (dated 3 April 2024), as well as the Amended Statement of Claim and the Further Amended Defence.
In the supplementary report, Dr Skinner said that the plaintiff’s decision to wait several hours before returning to hospital after the onset of the severe pain may have been a “psychological avoidance mechanism” in relation to her fear of surgery. Dr Skinner stated that this mechanism might have still operated even if the plaintiff remained in hospital. Specifically, Dr Skinner observed that the plaintiff may have not called for night staff in the hope that the pain would settle. Dr Skinner concluded that the plaintiff would have suffered similar psychological responses whether she was at home or at hospital when her pain increased.
Dr Skinner then turned to consider the reports of Dr Allnutt and Dr Ventura. Dr Skinner agreed that the plaintiff’s symptoms are “in keeping with” Dr Allnutt’s diagnosis of persistent depressive disorder with associated post-traumatic stress symptoms. However, Dr Skinner did not agree that the plaintiff was suffering a psychiatric disorder, noting that the plaintiff was “functioning well”. Dr Skinner also disagreed with Dr Ventura’s diagnosis of post-traumatic stress disorder as the plaintiff “did not describe the re-experiencing phenomena characteristic of that condition”. 2
Dr Skinner then considered a further report of Dr Lamaro, dated 3 April 2024. She agreed with his opinion that miscarriages and ectopic pregnancies requiring surgery are stressful for any patient. Dr Skinner accordingly found that the plaintiff has suffered “significant emotional trauma”, characterised by grief and loss, as a result of her four unsuccessful pregnancies. Dr Skinner considered that this trauma would not have been avoided even if the plaintiff had not been discharged from hospital on 1 August 2019.
Dr Skinner’s evidence
Dr Skinner was called to give oral evidence in these proceedings on 13 May 2024.
In her evidence, Dr Skinner expressed the opinion that the most significant factors concerning the plaintiff’s psychological response were the fact that she lost her pregnancy, and the fact that she had to undergo surgery which resulted in the loss of her remaining fallopian tube. Dr Skinner considered that the level of pain experienced by the plaintiff at the time of the surgery was of little consequence to the psychological sequalae incurred.
Dr Skinner explained that the plaintiff’s pregnancy and fertility were very important to her and that the loss of those two things would result in “major psychological implications”.
2 Parts of Dr Lamaro’s report were not pressed by the defendant. I excluded the remainder of the report, in which Dr Lamaro expressed opinions concerning the distress and stress that is experienced by women presenting to emergency departments with obstetric issues concerning pregnancy, and the likelihood that the plaintiff would have been distressed regardless of her location when her fallopian tube ruptured: Hartfield v Calvary Healthcare CT Ltd (No 3) [2024] ACTSC 137. The plaintiff did not press an objection to Dr Skinner’s opinions as made in response to Dr Lamaro’s report. This view was based on Dr Skinner’s clinical experience, rather than any assessment of the plaintiff directly.
Relevant legislation and principles
Duty of care
The present proceedings are governed by the Civil Law (Wrongs) Act 2002 (ACT) (Wrongs Act).
Section 42 of the Wrongs Act provides as follows concerning the standard of care to be applied in negligence proceedings: 42 Standard of care For deciding whether a person (the defendant) was negligent, the standard of care required of the defendant is that of a reasonable person in the defendant’s position who was in possession of all the information that the defendant either had, or ought reasonably to have had, at the time of the incident out of which the harm arose.
As can be seen from the terms of s 42, the inquiry requires consideration of what a reasonable person would have done, looking forward from a point of time before the injury, rather than retrospectively at what could have been done to avoid the injury: see Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422 at [126]–[129]; Rosenberg v Percival [2001] HCA 18; 205 CLR 434 at [16]. The burden of proof lies on the injured party: Horne v J K Williams Contracting Pty Ltd [2023] NSWCA 58; 104 MVR 1 at [23].
In the present case, the relevant standard is that of a medical practitioner, as outlined by the High Court in Rogers v Whitaker [1992] HCA 58; 175 CLR 479 at 483: The law imposes on a medical practitioner a duty to exercise reasonable care and skill in the provision of professional advice and treatment. That duty is a "single comprehensive duty covering all the ways in which a doctor is called upon to exercise his skill and judgment"; it extends to the examination, diagnosis and treatment of the patient and the provision of information in an appropriate case. It is of course necessary to give content to the duty in the given case. The standard of reasonable care and skill required is that of the ordinary skilled person exercising and professing to have that special skill … Breach of duty
Section 43 provides as follows concerning the precautions to be taken against risk of harm: 43 Precautions against risk—general principles (1) A person is not negligent in failing to take precautions against a risk of harm unless— (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and (b) the risk was not insignificant; and (c) in the circumstances, a reasonable person in the person’s position would have taken those precautions. (2) In deciding whether a reasonable person would have taken precautions against a risk of harm, the court must consider the following (among other relevant things): (a) the probability that the harm would happen if precautions were not taken; (b) the likely seriousness of the harm; (c) the burden of taking precautions to avoid the risk of harm; (d) the social utility of the activity creating the risk of harm.
Section 44 of the Wrongs Act provides the following additional requirements when assessing the precautions to be taken against risk of harm: 44 Precautions against risk—other principles In a proceeding in relation to liability for negligence— (a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible; and (b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which it was done; and (c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in relation to the risk and is not of itself an admission of liability in relation to the risk.
The relevance of peer professional opinion in determining whether there has been a breach of the duty of care
There is no equivalent in this jurisdiction to s 5O of the Civil Liability Act 2002 (NSW), which relevantly provides that 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 was widely accepted in Australia by peer professional opinion as competent professional practice at the time the service was provided: KS and XT v Calvary Health Care ACT trading as Calvary Hospital and Dr Andrew Foote [2018] ACTSC 84 at [265]. Accordingly, in this jurisdiction, whether there has been a breach of the duty of care is a question for the Court rather than for the experts, although the state of competent professional opinion and practice at the time will be a relevant (and sometimes decisive) consideration in determining whether a breach has occurred: Rosenberg v Percival at [6]; Rogers v Whitaker at 483; and Fuller at [90] – [91]. The application of s 110 of the Wrongs Act (principles about public authorities)
The defendant submitted that in considering whether it breached its duty of care, consideration must also be given to s 110 of the Wrongs Act. Section 110 provides as follows: 110 Principles about resources, responsibilities etc of public or other authorities The following principles apply in deciding in a proceeding whether a public or other authority has a duty of care or has breached a duty of care: (a) the functions required to be exercised by the authority are limited by the financial and other resources reasonably available to the authority for exercising the functions; (b) the general allocation of the resources by the authority is not open to challenge; (c) the functions required to be exercised by the authority are to be decided by reference to the broad range of its activities (and not only by reference to the matter to which the proceeding relates); (d) the authority may rely on evidence of its compliance with the general procedures and applicable standards for the exercise of its functions as evidence of the proper exercise of its functions in the matter to which the proceeding relates.
There is an issue as to whether Calvary Healthcare ACT Ltd was, at the relevant time, a “public or other authority” within the meaning of s 110 of the Wrongs Act.
Section 109 of the Wrongs Act defines “public or other authority” as follows: 109 Definitions—ch 8 In this chapter: public or other authority means any of the following: (a) the Territory; (b) an administrative unit; (c) a territory authority; (d) an entity prescribed by regulation for this paragraph; (e) any entity so far as the entity exercises a function prescribed by regulation for this paragraph.
At the time of the relevant events, Calvary Health Care ACT Ltd was a publicly listed company. On 31 May 2023, the ACT Legislative Assembly passed the Health Infrastructure Enabling Act 2023 (ACT) (the Health Infrastructure Act), which had the effect of enabling the Territory to acquire from Calvary Health Care ACT Ltd part of the land that the Calvary Hospital in Bruce stood on. The Explanatory Statement to the Health Infrastructure Enabling Bill 2023 lists a number of its policy objectives, one of which relevantly provides: “to transition to a government operated, insourced, healthcare system on the northside of Canberra” (emphasis added). In other words, as at 31 July 2019, the Territory merely provided the Hospital with public funding. It was not owned, nor administered by the Territory.
Causation
The principles to be applied when considering questions of causation are set out in s 45 of the Wrongs Act, which relevantly provides as follows: 45 General principles (1) A decision that negligence caused particular harm comprises the following elements: (a) that the negligence was a necessary condition of the happening of the harm (‘factual causation’); (b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (the scope of liability). …
The distinction between “factual causation” and “scope of liability” in s 45 “should not be obscured by judicial glosses”: Wallace v Kam [2013] HCA 19; 250 CLR 375 at [14].
“Factual causation” as provided for in s 45(1)(a) of the Wrongs Act is an “entirely factual” question: Wallace v Kam at [14]. Factual causation will be satisfied where a defendant’s negligence is a necessary condition of the occurrence of the particular harm. It is not necessary that the negligence be the sole cause of the harm; all that is required is that the negligence make a “material contribution” to the harm sustained: Strong v Woolworths Limited [2012] HCA 5; 246 CLR 182 at [20] – [30].
In contrast, the “scope of liability” limitation in s 45(1)(b) of the Wrongs Act is a “normative question”. As the Court of Appeal held in McLennan v Meyer Vandenberg [2020] ACTCA 7 at [44]: Unlike s 45(1)(a), s 45(1)(b) is a normative question: Wallace v Kam [2013] HCA 19; 250 CLR 375 at [14]. It is in this limb of the test for causation that matters such as novus actus interviens must be considered, as they incorporate unexpressed value judgments: see Nguyen v Cosmopolitan Homes (NSW) Pty Ltd [2008] NSWCA 246 at [69]; Thomson v Young [2013] NSWCA 300 at [12]; Paul v Cooke [2013] NSWCA 311; 85 NSWLR 167 at [86]; Commonwealth of Australia, Review of the Law of Negligence: Final Report (2002) (Ipp Report) at [7.43]. In determining the scope of liability the court is obliged to consider whether or not, and why, responsibility for harm should be imposed upon the negligent party. Contributory negligence
Section 102 of the Wrongs Act concerns contributory negligence. It provides as follows: 102 Apportionment of liability—contributory negligence (1) If a person (the claimant) suffers damage partly because of the claimant’s failure to take reasonable care (contributory negligence) and partly because of someone else’s wrong— (a) a claim for the damage is not defeated because of the claimant’s contributory negligence; and (b) the damages recoverable for the wrong are to be reduced to the extent the court deciding the claim considers just and equitable having regard to the claimant’s share in the responsibility for the damage. (2) However, if the claimant suffered personal injury and the wrong was a breach of statutory duty, the damages recoverable by the claimant for the personal injury must not be reduced because of the claimant’s contributory negligence. (3) If an Act or contract providing for the limitation of liability applies to the claim, the amount of damages awarded to the claimant because of subsection (1) must not exceed the maximum limit applying to the claim. (4) This section does not defeat any defence arising under a contract. (5) This section has effect subject to part 7.1 (Damages for personal injuries— exclusions and limitations). 3
3 An appeal against the damages awarded by McWilliam J in this decision was allowed: Alananzeh v Zgool Form Pty Ltd [2025] ACTCA 19. The appeal against her Honour’s decision as to liability was dismissed, and the correctness of the principles to be applied in connection with s 102 of the Wrongs Act was not questioned. (a) Having regard to the words of s 102 of the Act set out above, and in particular the phrase ‘partly because of the claimant’s failure to take reasonable care’ it is necessary to establish that the plaintiffs’ failure to take reasonable care is causally linked to the suffering of damage. (b) The defendants bear the onus of establishing the causal connection. (c) The test is objective. It is in substance the same test that existed at common law, and involves both the culpability (in the sense of the degree of departure from the standard of care of a reasonable person) and the relative importance of the act of the parties in causing damage. The pleadings
Scope of the duty of care
In her Amended Statement of Claim, the plaintiff alleged that the defendant owed her a non-delegable duty of care to provide the medical services to the standard expected of a reasonably competent hospital. The Amended Statement of Claim asserts that the scope of the duty required the defendant to: (a) Appropriately assess, diagnose and treat the Plaintiff; (b) Secure or arrange for appropriate investigations and/or referrals to be effected with respect to the Plaintiff; (c) Appropriately assess the Plaintiff upon her presentation or representation and thereafter provide appropriate treatment and/or undertake appropriate investigations and/or thereafter to properly advise the plaintiff in relation to her symptoms and/or her ongoing clinical management and/or any steps that ought to be undertaken with respect to her symptoms; (d) Take reasonable steps to reduce the risk of foreseeable injury to the Plaintiff arising from her symptoms or from the medical services provided or required; (e) Provide advice to the Plaintiff as to diagnosis; (f) Provide advice to the Plaintiff as to a differential diagnosis; (g) Provide advice to the Plaintiff on whether the Plaintiff required surgery; (h) Warn the Plaintiff in relation to risks of having surgery and risks of not having surgery; (i) Advise the plaintiff to remain in hospital where she was, and had been, experiencing significant pain during her admission on 31 July and 1 August and remained at significant risk of experiencing a ruptured ectopic pregnancy.
In its Further Amended Defence, the defendant admits that at the relevant time, the Hospital owed the plaintiff a non-delegable duty of care to exercise reasonable care and skill in the provision of medical care, treatment and advice during her presentations and admissions to the Hospital on 31 July 2019 and 2 August 2019. However, the defendant does not admit the particulars as outlined above, and simply asserts that the scope and content of the duty owed to the plaintiff by the defendant was to be determined by ss 42 – 44 inclusive of the Wrong Act.
In response to the plaintiff’s allegations concerning the duty of care, the defendant also alleges that: The Plaintiff denied the Defendant the opportunity to treat her sooner by failing to report her alleged pain or increased pain at or shortly after discharge, and failure to promptly re-present to the hospital as advised and in accordance with its clinical management plan, and accordingly, the scope of the Defendant’s duty should not extend to any damage suffered by her following her discharge. Breach of Duty
In her Amended Statement of Claim, the plaintiff alleges that the risk of harm to her was evident from her medical history, including her prior ectopic pregnancy, miscarriage, endometriosis and peritoneal windows; and from her symptoms upon presentation on 31 July 2019, including abdominal pain, bleeding, vomiting, shoulder pain, and the lack of evidence of an intra-uterine pregnancy.
The plaintiff contends that her condition was such that a failure to meet the standard of care set out above would be likely to occasion serious and ongoing harm, including a risk of total removal of the plaintiff’s remaining fallopian tube; the ensuing risk that she would be unable to fall pregnant naturally in future; and the risk that she would “suffer a ruptured ectopic pregnancy at home if inappropriately discharged, thereby causing significant fear of harm or death in someone who had previously experienced a similar medical condition contralaterally, and resulting in psychiatric injury”.
Damages
The plaintiff claims that she sustained the following injury, loss and damage as a result of the defendant’s negligence: (a) Rupture of left fallopian tube; (b) Laparoscopic left salpingectomy to remove left fallopian tube; (c) Inability to conceive naturally; (d) Episodic pain and vomiting during menstruation; (e) Marriage breakdown due to inability to conceive; (f) Psychological trauma; (g) Loss of self-esteem and confidence; (h) Reduced quality and quantity of sleep; (i) Persistent depressive disorder; (j) Associated post-traumatic stress symptoms; and (k) Post-traumatic stress disorder.
The plaintiff also seeks damages for consequent economic loss, including out of pocket expenses, past and future loss of income and past and future domestic assistance.
In its Amended Defence, the defendant denies causation. The defendant also denies that the plaintiff suffered any injury, loss or damage due to any negligence on the part of the defendant.
The defendant also alleges that any injury, loss or damage was contributed to by the plaintiff’s own negligence, including by failing to provide the obstetric and gynaecological registrar of various matters during his consultation with her; (a) Failing to advise Hospital personnel of various specified matters concerning her pain levels and her concerns on discharge; (b) Disregarding medical advice to re-present to the Hospital Emergency Department if there was any increase in pain or if she had any concerns, because she wanted to “try and manage it at home” on 1 August 2019; (c) Failing to contact the Hospital, call an ambulance or re-present to the Hospital after 7:00pm on 1 August 2019 when she alleges she experienced an increase in pain; (d) Failing to contact the Hospital for advice/ support, to call an ambulance, to ask her husband or family members to transport her or to re-present to the hospital after 2:00am on 2 August 2019 when she says she started experiencing severe pain including sharp shooting pains up her arm and into her shoulder tip, or thereafter; (e) Failing to contact the Hospital for advice/ support, call an ambulance, ask her husband or family members to transport her or re-present to the hospital at any time prior to 6:38am on 2 August 2019.
The defendant alleges in answer to the whole of the plaintiff’s claim that it is just and equitable for the plaintiff’s claim to be reduced pursuant to s 47 of the Wrongs Act by up to 100% by reason of the plaintiff’s contributory negligence, in circumstances in which the plaintiff “was given advice upon discharge and the Plaintiff, knowing of her risk of a possible rupture of a possible tubal ectopic pregnancy at discharge … did not return to hospital as directed by the doctors, upon experiencing a change or increase in symptoms”.
The defendant also relies upon s 110 of the Wrongs Act, and contends that: (a) A hospital cannot, as a practical matter, retain every patient as an inpatient until their medical condition has favourably or fully resolved without any risk of harm; and (b) A hospital is entitled to discharge a patient with a medical condition which has not favourably or fully resolved, following clinical review, with advice to seek medical review or return in the event of any concern or deterioration. Findings of fact
Overview
As noted above, the plaintiff advanced a primary case and an alternative case on liability. The following factual issues are relevant to both claims: (a) The weight to be given to the oral evidence of the witnesses and the clinical notes; (b) The plaintiff’s pain levels during the course of her first admission; (c) What the plaintiff told medical staff about her pain levels during the course of her first admission; (d) The plaintiff’s pain levels at the time of discharge; (e) What the plaintiff told medical staff about her pain levels at the time of discharge; (f) Whether the plaintiff told medical staff that she believed she was suffering from an ectopic pregnancy; (g) What the plaintiff was told about possible diagnoses during the course of her first admission; (h) What the plaintiff was told about her possible diagnosis at the time of discharge; (i) Whether the plaintiff currently suffers from a recognised psychiatric illness, and, if so, what is that diagnosis? and, (j) What, if any, inferences should be drawn from the plaintiff’s failure to call her former husband to give evidence in her case.
It is convenient to make findings on each of these issues before turning to the substance of the plaintiff’s claims.
The weight to be given to the evidence of the plaintiff, her sister, the medical personnel and the clinical notes
As outlined above, differing accounts were given by the plaintiff, her sister and the medical staff as to the levels of pain reported, and suffered, by the plaintiff during the course of her first admission.
The difference between the accounts given by the plaintiff, her sister, and the medical personnel is not attributable to any lack of candour on the part of the witnesses. I find that each of the witnesses, including the plaintiff, her sister and each of the medical personnel, were honest witnesses, who were doing their best to recall events that occurred a number of years ago. As Senior Counsel for the defendant acknowledged in his oral submissions, the real issue is one of the witness’ reliability rather than their credibility.
The difficulties in ascertaining the reliability of a witness’ evidence in a case such as the present has been the subject of comment in many decisions: see, for example, Nominal Defendant v Cordin [2017] NSWCA 6; 79 MVR 210 at [164]–[165]; J and E Vella Pty Ltd v Hobson [2023] NSWCA 234 at [26], quoting Onassis v Vergottis [1968] Lloyds LR 403 at 431; Heron v McGregor (1986) 6 NSWLR 246 at 254E; Gestmin SGPS v Credit Suisse (UK) Ltd [2013] HWHC (Comm) 3560 at [22]. As McLelland CJ in Eq observed in Watson v Foxman (1995) 49 NSWLR 315 at 319: …human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience.
These observations have particular resonance for the evidence of the witnesses in the present case.
For example, the plaintiff’s recollection of her first admission (both what she experienced, and what she said) is necessarily coloured by her later experiences, in particular, of becoming critically ill within 12 hours of her discharge from the hospital; and of later coming to understand the jeopardy which she was in fact in at the time of her discharge. It is understandable that the severe pain which the plaintiff undoubtedly experienced immediately prior to, and after, her second admission would affect her recollection of the pain she was experiencing at the time of her first admission.
The evidence of the medical practitioners and nursing staff must be approached with similar caution. Dr Bodulkar, Dr Menakaya and Nurse Dansby each frankly, and understandably, acknowledged that they did not have a clear recollection of the plaintiff.
None of this is to say that the evidence of any of the witnesses should be rejected outright as unreliable. Rather, it is simply to say that the evidence of the witnesses concerning their recollections of the period from 31 July 2019 to 1 August 2019 must be approached with caution. In contrast, the clinical notes were filled in contemporaneously, at a time when litigation was not contemplated, and where the perceptions of the authors of the notes were not coloured by later events.
The plaintiff’s pain levels during the course of her first admission
I do not find that the plaintiff’s pain levels could be described as “severe” at any time during her first admission. Despite being administered relatively small quantities of Fentanyl, the latest at 11:10pm on 31 July 2019, the plaintiff acknowledged (consistently with what is recorded in the nursing notes) that she was able to sleep during the night of 31 July 2019 to 1 August 2019. Her abdomen was not found to be rigid or guarded at the time of any examination. On the plaintiff’s own account, the pain that she experienced at 7:00pm on 1 August 2019 and particularly at 2:00am the following morning was qualitatively different from the pain that she suffered during her first admission. In particular, it was not until 7:00pm that the plaintiff began sweating, a symptom which she said occurs when she is in “significant” pain.
However, it does not follow that the plaintiff was not suffering from any pain during the course of her first admission. It is clear from the medical notes that the plaintiff was in pain during the course of her first admission, and that at times, that pain was considerably more than ‘discomfort’. Specifically, those notes record that the plaintiff self-presented to the Emergency Department on 31 July 2019 complaining of lower left abdominal pain which had been “getting worse” for the past 12 hours. The plaintiff complained of “mild pain” at 7:15am on 1 August, and later “6 out of 10” pain at 10:10am, only an hour and a half before a decision was made to discharge her. She was administered pain relief at various time during the evening of 31 July 2019 and on 1 August 2019.
Dr Bodulkar’s record that the plaintiff was “comfortable” when Dr Bodlukar examined the plaintiff at 2:30pm on 31 July 2019 and “stable/comfortable” when he examined the plaintiff at 11:30am on 1 August 2019 does not detract from this finding. Dr Bodulkar explained that this note was based upon his own observations, rather than the plaintiff’s own description of her pain levels. Dr Bodulkar explained that signs of discomfort would include that the pain was so severe that the patient was unable to give a history, was lying down or curled up in bed, was using a heat pack or pillow to hold on to, or was holding their carer’s hand. The absence of these kinds of observations is not inconsistent with the plaintiff experiencing continued pain which was more than “discomfort”.
What did the plaintiff tell medical staff about her pain levels during the course of her admission?
The plaintiff gave evidence that she told Nurse Dansby at 10:45am on 31 July 2019 that she was in “severe pain”, and that she told each nurse who did her observations on 31 July 2019 and 1 August 2019 that she was in “significant” pain.
However, whilst the plaintiff gave general evidence that she had told the doctors and nurses that she was suffering from “severe” pain, when asked about what she told the doctors and nurses at specific times, the plaintiff clarified that she had in fact reported that her pain levels were “less” (such as what she told Dr Bodulkar on 1 August 2019) or that she was “coping” (such as what she told Dr Bodulkar on 31 July 2019).
The notes do not record the plaintiff ever describing herself as being in “severe” pain during the course of her first admission. As noted above, the notes record the plaintiff reported: (a) That her pain had been “getting worse” over the past 12 hours on her admission at 10:19am on 31 July 2019; (b) That she had increasing pain during the evening of 31 July 2019 (leading to the administration of Fentanyl); (c) That she had “mild pain” at 7:15am on 1 August 2019; and (d) That she had 6 out of 10 pain at 10:10am on 1 August 2019.
There was no allegation in the plaintiff’s pleadings or submissions that any nursing or medical practitioner had made a false entry in the notes. Nor would there be any basis for such a serious adverse finding to be made. As noted above, I have accepted that each of the witnesses who gave evidence before me were honest witnesses who were doing their best to recount the truth in accordance with their recollections. Accordingly, where the plaintiff’s recollection of what she told nursing and medical staff concerning her pain level differs from what is recorded in the notes, I have preferred the latter.
I also accept the evidence of Nurse Dansby and Dr Bodulkar that if the plaintiff had complained of “severe” pain, they would have made a note of this and administered pain relief. It may be noted that the plaintiff was administered pain relief (Fentanyl and Panadol) on 31 July 2019 and on 1 August 2019 in response to complaints of increasing pain.
Accordingly, I find that whilst the plaintiff complained of pain at various times during her first admission, she did not complain of “severe” pain to any nurse or doctor during the course of that admission.
The plaintiff’s pain levels at the time of discharge
An issue of particular importance is the degree of pain which the plaintiff was experiencing at the time of her discharge.
The plaintiff gave evidence that her pain had been severe when she asked for paracetamol, but that the pain had “reduced” after she had taken paracetamol. She said that she was still in pain at the time of her discharge.
The defendant noted that Dr Bodulkar gave evidence that, if the plaintiff had reported pain at discharge or if the plaintiff had appeared to be in pain, he would not have discharged her, but would have kept her in hospital. The defendant submitted that an inference should be drawn from the fact that Dr Bodulkar discharged the plaintiff that she made no report of pain to him.
I accept that if the plaintiff had complained of severe pain to Dr Bodulkar at the time of discharge, he would have made a note of that complaint, and would not have discharged her. I also accept that if the plaintiff been obviously in severe pain at this time, he would have documented this fact. There is no indication in the medical notes of the plaintiff having complained of “severe” pain after the 10:10am entry. The last medical note which contains any positive recording of the plaintiff’s pain level was made by Dr Bodulkar at 11:30am, which, consistently with the plaintiff’s evidence, records that the plaintiff’s “abdo pain is less now and has taken only paracetamol”.
As both the plaintiff and her sister acknowledged, the plaintiff was able to walk unaided out of the hospital, and up the stairs to her house unaided. Even after the plaintiff’s pain increased at 7:00pm, she was able to go to sleep with the aid of paracetamol.
Taking into account each of these matters, I do not find that the plaintiff was in severe pain at the time of her examination by Dr Bodulkar, or at the time of discharge.
However, again it does not follow that the plaintiff was in no pain at the time of discharge. The 11:30am notes record that the plaintiff’s pain had was “less” after taking paracetamol. The report was not of “no pain”. There is no record of Dr Bodulkar having asked the plaintiff what her pain level was at that time, other than obtaining the information that her pain was “less”. The plaintiff’s report can only be assessed against her previous description of her pain levels as 6 out of 10. A reduction in pain from 6 out of 10 still left room for a not insignificant experience of pain.
There is no indication in the notes of Dr Bodulkar having asked the plaintiff what her pain level was when he saw the plaintiff at the time of her discharge at 12:30pm on 1 August 2019. Given the importance of this information, I infer from the absence of any notation concerning the plaintiff’s pain levels at this time that Dr Bodulkar did not ask the plaintiff what her pain levels were when he spoke to her at 12:30pm.
What did the plaintiff tell medical staff about her pain levels at the time of discharge?
As outlined at [331] above, consistently with the notes, I find that at 11:30am, the plaintiff reported to Dr Bodulkar that her pain was “less” after taking Panadol. I find that the plaintiff was not asked about her pain levels at the time of discharge. On the basis of the clinical notes and the evidence of Madeleine Hartfield, I accept that the plaintiff was not displaying any overt signs of significant pain when she was seen by Dr Bodulkar at 12:30pm on 1 August 2019. Did the plaintiff tell medical staff that she believed that she was suffering from an ectopic pregnancy?
The plaintiff gave evidence that she told various medical staff that she believed that she was suffering from an ectopic pregnancy. She explained that she had that belief because the pain was sharp and because it was located on the side of the left hand side of her abdomen. However, the plaintiff gave evidence that one of the reasons why she did not re-present to hospital when her pain increased at 7:00pm on 1 August 2019 was because the pain was different to the pain which she experienced in her earlier ectopic pregnancy. In answer to the question “you knew at the time that this [7:00pm] onset of pain could’ve been the progression of your ectopic pregnancy?” The plaintiff responded: Yes, but can I caveat with the fact that having previously experienced an ectopic pregnancy, it wasn't as sharp as - as - as - as that was and I fully appreciate that it was a number of years since it had happened, and the pain that I was experiencing in 2015 compared to 2019, one was a rupture and one possibly was not at a rupture at 7.00. So I was comparing the two or I would have been comparing the two.
It must be borne in mind that the pain level that the plaintiff was describing at 7:00pm on 1 August 2019 was higher than the pain levels that she had experienced prior to, or during her first admission. Most importantly, the plaintiff said that she commenced sweating at 7:00pm, which was not a symptom that she described at any time during the course of her first admission.
I accept that, on presentation, the plaintiff believed that she may have been suffering from an ectopic pregnancy, and this remained a concern that she had throughout her admission. However, in circumstances where the plaintiff’s symptoms were, on her own account, different to those she had suffered in her previous ectopic pregnancy (and were different to the symptoms which she suffered later that night), I do not accept that she told the nurses or the doctors that she positively believed that she was suffering from an ectopic pregnancy, as opposed to expressing a concern that she may have been suffering from an ectopic pregnancy.
What was the plaintiff told about possible diagnoses during the course of her admission?
As outlined above, the plaintiff said that during the 2:30pm consultation on 31 July 2019, Dr Bodulkar told her that she had a pregnancy of unknown location and that it was “likely” that she was having a miscarriage. She said that this advice was repeated to her at the 8:30pm consultation on 31 July 2019. In her evidence in chief, the plaintiff said that she was never told that there was a possibility of an ectopic pregnancy, but in cross-examination, she acknowledged that she was told that she could not eat or drink in case she needed surgery.
As noted above, Dr Bodulkar stated that he would have discussed his suspicions of an ectopic pregnancy with the plaintiff during his 2:30pm consultation. In particular, he said that he believed that he would have explained the risk of an ectopic pregnancy when taking the plaintiff’s medical history. He accepted, however, that he did not make a note of this discussion, and also agreed that it would have been important to do so.
As noted above, the notes for the 8:30pm consultation with Dr Bodulkar and Dr Menakaya state “discussed with patient differential diagnosis”. However, Dr Bodulkar was not able to say whether or not Dr Menakaya specifically mentioned the possibility of a tubal ectopic pregnancy at that time. When it was put to Dr Bodulkar in cross-examination that this was a matter that should have been discussed with the plaintiff, he responded: …there was no tubal ectopic pregnancy diagnosed by that time when this patient has been seen, so why should we write about tubal ectopic pregnancy in the notes?
Dr Bodulkar ultimately agreed that it would have been important to make a note if Dr Menakaya had discussed the specific risk of ectopic pregnancy, and also agreed that no note to that effect had been written. However, he remained unable to definitively state whether that matter had been discussed.
As outlined above, in his evidence concerning the 8:30pm consultation, Dr Menakaya said that when he “did the scan”, he “noticed straight away that [the plaintiff] had a corpus luteum”. He explained that a corpus luteum cyst is a cyst that helps to maintain pregnancy in the first eight to ten weeks of pregnancy. Dr Menakaya said that the cyst looks like a “balloon filled with blood” and said that this can also cause pain. Dr Menakaya noted that the corpus luteum cyst was located in the left ovary. He said that when he was scanning the plaintiff he saw the cyst and told the plaintiff that “it looks to me that your discomfort is because of the corpus luteum cyst”.
In examination-in-chief, Dr Menakaya stated that he “would have advised” the plaintiff that if an ectopic pregnancy ruptured, she would be placed at considerable risk. He maintained that he would have told the plaintiff that one of the potential differential diagnoses that remained open was an ectopic pregnancy. (“Absolutely I would have. That’s my normal practice.”)
What was the plaintiff told about the possibility of an ectopic pregnancy at the time of discharge?
The plaintiff maintained that she was not told at the time of discharge that she may have been suffering from an ectopic pregnancy. She said that she was told that the pregnancy was of an “unknown location”, but maintained that it was not explained that the pregnancy “would be in the tube”.
However, the plaintiff also gave evidence that she told Dr Bodulkar that she was concerned that, if she was having an ectopic pregnancy and the pregnancy ruptured, she was not sure how to “manage that at home with pain relief”. The plaintiff also accepted that she was told that she needed to return to hospital if there was any increase in her pain.
The plaintiff’s sister, Madeleine Hartfield, gave evidence that she was present for the 11:30am and 12:25pm consultations between the plaintiff and Dr Bodulkar. However, all that Madeleine Hartfield recalled from the earlier consultation was that the doctor asked the plaintiff if she needed home support and if she needed to seek a counsellor or psychiatric care prior to discharge. Madeleine Hartfield did not recall anything that was said in the later consultation.
As noted above, the Progress Notes record that Dr Bodulkar discussed “red flags” with the plaintiff. Dr Bodulkar explained that whilst he written “red flags” in his notes, he would not have used that expression with the plaintiff. He gave evidence that: … if the patient has come with pregnancy, abdominal pain and vaginal bleeding then we will tell them those relevant red flags as maybe increase bleeding, increased pain, or if this person was probably high risk for ectopic, then we'll say that if you have dizziness or if you pass away [sic, presumably ‘pass out’] then someone has to bring her.
In cross-examination, Dr Bodulkar stated that an increase in pain “is one of the red flags that I have told her. Yes. That’s right. So one of the red flags”.
Later in cross-examination, Dr Bodulkar volunteered: … when we say red flags explain so this is where I want to tell you when in spite of not writing the exact words of ectopic pregnancy, when we have explained the red flags we would have explained the red flags of all the differential diagnosis which also include PUL and ectopic so to say that we haven't told her about ectopic is wrong.
Dr Bodulkar’s evidence that he told the plaintiff that she should return to hospital if she experienced any increased bleeding, pain, dizziness or loss of consciousness is supported by the clinical notes, and is consistent with the plaintiff’s evidence. Dr Bodulkar and the plaintiff each gave evidence that there was a conversation about the plaintiff’s concern of the ongoing possibility of an ectopic pregnancy, and that Dr Bodulkar’s response to this concern was to remind the plaintiff to return to hospital if she experienced an increase in pain, bleeding, dizziness or loss of consciousness.
Does the plaintiff have a recognised psychiatric illness?
As described above, Dr Allnutt and Dr Ventura each concluded that the plaintiff has sustained a trauma-related psychiatric illness. In his report, Dr Allnutt preferred a diagnosis of a persistent depressive disorder with associated post-traumatic stress symptoms, whereas Dr Ventura preferred a diagnosis of Post-Traumatic Stress Disorder, in remission. However, in oral evidence, Dr Allnutt and Dr Ventura agreed that these diagnoses overlapped and were not “drastically different”, as both conditions are psychiatric illnesses, characterised by symptoms of depression, anxiety and post-traumatic stress.
On the other hand, Dr Skinner did not consider that the plaintiff was suffering from a psychiatric disorder, on the basis that the plaintiff was “functioning well”. Nonetheless, she agreed with that the plaintiff’s symptoms were “in keeping with” Dr Allnutt’s diagnosis. Dr Skinner did not explain whether her assessment of the plaintiff as “functioning well” referred to the plaintiff’s presentation at the time of the court proceedings, or referred to her presentation at the time of either or both of Dr Allnutt or Dr Ventura’s examinations.
In contrast to Dr Allnutt and Dr Ventura, Dr Skinner did not personally examine the plaintiff. The areas of disagreement between Dr Skinner, on the one hand, and Dr Allnutt and Dr Ventura on the other, concern nuanced questions such as whether the plaintiff was more affected by her loss of fertility, or by the traumatic situation she had experienced. These are each matters where a personal examination of a patient, with all of the subtleties in tone of voice, body language, and affect that such an examination entails, will necessarily be more reliable than the making of inferences based on reports and transcripts of evidence. Further, as noted at [262․] above, it is significant that, at the conclusion of Dr Skinner’s cross-examination, she acknowledged that she had previously been unaware that the plaintiff was haemorrhaging whilst she was in pain at 2am. She accepted that this was a matter which was relevant to the anxiety that the plaintiff was facing, and the likelihood of her experience having resulted in a trauma-related psychiatric illness.
For these reasons, I accept the evidence of Dr Allnutt and Dr Ventura and find that the plaintiff has sustained a recognised psychiatric illness which is characterised by symptoms of depression, anxiety and post-traumatic stress. It is unnecessary to determine whether the better label for this illness is post-traumatic stress disorder or persistent depressive disorder with associated post-traumatic stress symptoms.
The absence of evidence from the plaintiff’s then husband
The defendant submitted that the Court should draw an adverse inference against the plaintiff pursuant to the rule in Jones v Dunkel because she did not call her former husband in support of her claim.
The ‘rule’ in Jones v Dunkel is a “principle of judicial reasoning which addresses the drawing of inferences of fact”: Ling v Pang [2023] NSWCA 112 at [24]. It holds that “the unexplained failure by a party to call a witness may in appropriate circumstances support an inference that the uncalled evidence would not have assisted the party’s case”: Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; 243 CLR 361 at [63], citing Jones v Dunkel [1959] HCA 8; 101 CLR 298. Further, “the failure to call a witness may also permit the court to draw, with greater confidence, any inference unfavourable to the party that failed to call the witness, if that uncalled witness appears to be in a position to cast light on whether the inference should be drawn”: Ling at [21].
The rationale underlying the principle is that “the failure to call the witness ‘serves to indicate, as the most natural inference, that the party fears to do so, and this fear is some evidence that the circumstance or document or witness, if brought, would have exposed facts unfavourable to the party’”: Ling at [27], citing Jones v Dunkel at 320 – 321.
Where it applies, the rule does not entitle the trier of fact to draw an inference that the uncalled evidence would have been positively damaging to the party not tendering it: SSABR Pty Ltd v AMA Group Ltd [2024] NSWCA 175 at [161]; Read v Burns [2017] ACTSC 184 at [205], citing Brandi v Mingot (1976) 12 ALR 551 at 559 – 60. Nor can the rule be used to fill in gaps in evidence, or convert conjecture or suspicion into inference: Jones v Dunkel at 308, 312, 320 – 1.For these reasons, generally speaking, a Jones v Dunkel inference will “only become material where the balance of the evidentiary record is equivocal”: The Property Investors Alliance Pty Ltd v C88 Project Pty Ltd (in liq) [2023] NSWCA 291 at [147].
In order for the inference to be drawn, the Court must be satisfied of three matters: “first, it is expected or natural for the party in question to have called the person; second, the person’s evidence would have elucidated a particular matter; third, the absence of the person is unexplained”: Ling at [23]. The rule has no application where there is a reasonable explanation for failing to adduce the evidence, such as where the witness is suffering an illness, or is hostile: Kelly v The King [2024] VSCA 69 at [55], quoting Smith v Samuels (1976) 12 SASR 574 at 581. Any “reasonable explanation” for not calling a witness to whom the principle applies must be established on the evidence: West v Government Insurance Office of New South Wales [1981] HCA 38; 148 CLR 62 at 70.
I accept that the plaintiff’s former husband could have shed light on the plaintiff’s condition when he returned home from deployment; her condition from after she woke him up at around 5:00am on the morning of 2 August 2019 until she was admitted into hospital; and his perspective for the reasons for the breakdown in their marriage.
The plaintiff’s primary case
Overview
As outlined above, the plaintiff’s primary case was that the Hospital should have undertaken (or, at least, advised the plaintiff to undertake) a laparoscopy during the course of the plaintiff’s first admission on 31 July 2019 to 1 August 2019. The plaintiff contended that if a laparoscopy had been undertaken, it was likely that a successful salpingostomy would have been performed, which would have saved her left fallopian tube, preserving her ability to conceive naturally and without the assistance of IVF.
The defendant appropriately accepted it owed the plaintiff a non-delegable duty of care to exercise reasonable care and skill in the provision of medical care, treatment and advice during the period from 31 July 2019 to 2 August 2019. The real issues in dispute in respect of the plaintiff’s primary case were breach and causation.
Breach of duty: Should a laparoscopy and/ or a salpingostomy have been performed at any time during the first admission?
Of the three experts, only Associate Professor Izzo was of the opinion that a salpingostomy should have been performed during the plaintiff’s first presentation at the Hospital. As described above, both Dr Lamaro and Professor Hyett were of the opinion that a salpingostomy was clinically contraindicated at all times during the plaintiff’s first presentation.
The expertise of the experts was not challenged. However, the underlying assumptions of both Dr Lamaro and Associate Professor Izzo were challenged. The defendant pointed out that Associate Professor Izzo’s opinion was predicated, at least in part, on an understanding that the plaintiff was suffering from “severe” pain during her first presentation. Similarly, Dr Lamaro’s evidence was challenged by the plaintiff on the basis that he had assumed that the plaintiff was in “no pain” at the time of discharge.
For the reasons outlined above, whilst I have accepted that the plaintiff was in pain, I have not accepted that the plaintiff’s pain was ‘severe’ at any time during the plaintiff’s first admission. Considering the whole of the expert evidence together with this finding of fact, I am not satisfied that the plaintiff has demonstrated that a salpingostomy should have been performed at any time during the plaintiff’s first admission.
Specifically, given the plaintiff’s history of a previous ectopic pregnancy, and her description of pain in the left lower quadrant (that is, on the opposite side to her previous ectopic pregnancy), it may also be accepted that an ectopic pregnancy remained a possible diagnosis at all times during her first admission (as was recognised in the medical notes). However, other diagnoses could not be properly excluded at that time. In the absence of a positive finding of an ectopic pregnancy on the ultrasound and the presence of a corpus luteus cyst in the plaintiff’s left ovary, ongoing miscarriage remained a possible cause of the plaintiff’s symptoms at the time of her discharge at 1:30pm on 1 August 2019. Despite the absence of any visible finding in the uterus on the ultrasound, there also remained a small possibility of a viable pregnancy. There were no further non-invasive tests that could be performed to definitively confirm, or exclude, an ectopic pregnancy.
As Dr Lamaro and Professor Hyett explained, the plaintiff was haemodynamically stable. There was a “small risk” of the surgery adversely affecting a viable pregnancy and a “significant chance” that if the pregnancy was ectopic, the pregnancy would abort spontaneously, without further complication.
More importantly, any surgical intervention carries risk, and in the case of the surgery proposed in the plaintiff’s primary case, these risks were substantial. As Associate Professor Izzo acknowledged, a salpingostomy could not be performed unless the ectopic pregnancy was visible on a laparoscopy. Professor Hyett and Dr Lamaro each gave evidence that there was a significant risk that any ectopic pregnancy would not be visible on a laparoscopy if it had been performed during the course of the plaintiff’s first admission. A laparoscopy that did not result in a salpingostomy or salpingectomy would have seriously jeopardised the ongoing management of the plaintiff’s condition. Specifically, any further escalation in pain that may have been experienced by the plaintiff following the laparoscopy may have been masked by the effects of the surgery itself. In addition, there was a real risk that a salpingostomy could itself have damaged or scarred the plaintiff’s left fallopian tube, adversely affecting her future fertility (including via IVF), and significantly increasing her risk of having a further ectopic pregnancy in the future. For these reasons, Dr Lamaro was of the view that the performance of a laparoscopy on the plaintiff would have itself constituted a deviation from the appropriate standard of care.
Causation
My conclusions as to breach are sufficient to determine the plaintiff’s primary case. However, for completeness, I also record that I am also not satisfied on the balance of probabilities that if a laparoscopy had been performed during the time of the plaintiff’s first admission, a successful salpingostomy would have followed.
As already observed, a salpingostomy could not have been performed if the ectopic pregnancy was not visible on a laparoscopy. For the reasons outlined above, I have not accepted that the plaintiff was in severe pain during the first admission. It was not until 7:00pm on 1 August 2019 that the plaintiff’s pain was such as to suggest that it is likely that there was sufficient bleeding within the fallopian tube to cause swelling that would have been visible on a laparoscopy. In these circumstances, I am not satisfied on the balance of probabilities that the plaintiff’s ectopic pregnancy would have been visible if a laparoscopy had been performed at any time during the first admission.
Further, even if an ectopic pregnancy had been visible on a laparoscopy, the prospects of a successful salpingostomy were uncertain at best. As Professor Hyett explained, even if a tubal ectopic pregnancy was identified and a salpingostomy attempted, there was a “significant risk” that the procedure would not have been technically possible, requiring a salpingectomy to be performed. Dr Lamaro agreed. I accept this evidence.
Accordingly, it also follows that I am not satisfied on the balance of probabilities that any failure to perform a laparoscopy was “a necessary condition of the happening of the harm” (s 45(1)(a) of the Wrongs Act).
Conclusion
Outline of the plaintiff’s alternative claim
As has been referred to above, in her alternative case, the plaintiff contended that the defendant breached its duty of care to her by discharging her at 1:30pm on 1 August 2019.
Central to this claim was Dr Menakaya’s evidence that he was not aware that the plaintiff had reported that she had 6 out of 10 pain at 10:10am on 1 August 2019.
The relevant exchange was as follows: If you had been told that an hour and 20 minutes before Dr Bodulkar saw [the plaintiff] at 11:30 on 1 August 2019, she had reported 6 out of 10 pain, that would have been quite significant to your determination whether to discharge her, would it not? --- 6 out of 10 pain is significant pain. Yes. Yes, and if you had been told that she had reported 6 out of 10 pain at 10 past 10.00 that morning, that would have been very significant to your decision to discharge? --- It is a significant consideration. Yes. Yes, and taking a properly cautious approach in the clinical circumstances of this case, may we assume that if you had been told of that, that you would have determined to keep her in hospital for further observation? --- That would not be the only consideration though. No, but if you had been told that and all other things being equal, that would have tipped you in the direction of keeping her in hospital, would it not? – What I would likely do is, you know, maybe go and examine her myself. Yes. That is, you would not have said to Dr Bodulkar, ‘that’s ok, she’s right to be discharged?’ --- Well, that – not a pain score of 6 out of 10. No. At ten past 10.00 that morning? --- I wasn’t aware of that. (emphasis added)
Later in the cross-examination, Dr Menakaya reiterated that he was not aware that the plaintiff had complained of 6 out of 10 pain. He also confirmed that this report would remain significant, even if it were not accompanied by physical symptoms of pain, such as increased pulse rate or blood pressure. He was then asked: Having kept her in overnight for the reasons you have told us you did, if you had known those things [ie, that the patient had reported 6 out of 10 pain], that would have been a strong indicator to you, would it not, even in the presence of the drop in her hCG levels, that she should be kept in hospital and kept under observation?
Dr Menakaya responded: If I had known those, what I would have done was to investigate her more, perhaps request another ultrasound scan.
Dr Menakaya ultimately agreed that it was “unlikely” that he would have discharged the plaintiff.
The plaintiff’s counsel noted that all of the experts agreed that if the plaintiff had been in hospital at the time that she experienced an increase in pain at 7:00pm, further action would have been taken by the Hospital, the only difference being that Dr Lamaro would have requested a further ultrasound, whereas Associate Professor Izzo and Professor Hyett would each have proceeded immediately to a laparoscopy.
The defendant’s submissions concerning the plaintiff’s alternative claim
As noted at [287․] above, the defendant appropriately accepted that the Hospital owed a non-delegable duty of care to the plaintiff to exercise reasonable care and skill in the provision of medical care, treatment and advice during the period from 31 July 2019 to 2 August 2019.
In oral submissions, Senior Counsel who appeared for the defendant accepted that the risk of injury, including psychiatric injury was foreseeable. This concession was correctly made. As Senior Counsel acknowledged, the doctors had made a differential diagnosis of ectopic pregnancy with respect to the plaintiff. There was no dispute that the rupture of an ectopic pregnancy can be dangerous, and potentially fatal to the pregnant woman. It is clearly foreseeable that a patient may suffer both physical and emotional harm if the patient is not provided with appropriate care in connection with that condition.
The dispute between the parties on the alternative case was again focussed on issues of breach and causation. In his oral submissions, Senior Counsel for the defendant contended that the Hospital did not breach its duty of care by discharging the plaintiff. He observed: [H]ospitals routinely discharge somebody from hospital whose clinical condition has not resolved. And whether it’s a broken leg, whether it’s a laceration, whether it’s an excised melanoma, whether it’s an amputation, people are commonly discharged with pain relief without the clinical condition actually resolving. It hasn’t concluded. There is still the opportunity to – the hope is that the condition will improve. There’s the opportunity that it will not. And to that extent, the hospital – a relevant consideration as set out in the defence is that we say, looking at the broad scope of the operation of the hospital, the hospital cannot retain everybody in hospital whose condition hasn’t resolved.
Senior Counsel acknowledged that it would not have been appropriate to discharge the plaintiff if she was in “really significant pain” at the time of discharge. He contended that the Court would not be satisfied that the plaintiff was in “significant pain” at any time during her first admission.
As to causation, the defendant submitted that because the plaintiff was suffering from a life-threatening condition, she would have suffered psychological injury even if she had not been discharged on 1 August 2019. The defendant also submitted that the plaintiff was given clear advice to return to hospital if her pain worsened. The defendant submitted that the plaintiff’s failure to do so was the cause of any damage that she sustained, rather than the Hospital’s decision to discharge her. In the alternative, the defendant submitted that any award of damages should be reduced by up to 100% by reason of the plaintiff’s contributory negligence.
Determination as to liability on the plaintiff’s alternative claim Breach of duty
As alluded to above, the question of breach depends in part on the Court’s findings as to the level of pain that the plaintiff was in at the time of discharge. Senior Counsel for the defendant properly acknowledged that a decision to discharge the plaintiff would have constituted a breach of duty if the plaintiff was in “really significant pain” at the time of discharge. Dr Lamaro and Professor Hyett (if not Associate Professor Izzo) each expressed the opinion that there would be no breach of the Hospital’s duty of care if the plaintiff was in “no pain” at the time of discharge.
For the reasons outlined above, I have concluded that the true position was somewhere between these two extremes. Whilst the plaintiff was not in “really significant pain”, it is also incorrect to describe her as being in “no pain” (or as only suffering discomfort) during the course of her first admission. The clinical notes demonstrate that the plaintiff had described herself as having 6 out of 10 pain at 10:10am on 1 August 2019 (that is less than an hour and a half prior to Dr Menakaya’s decision to discharge the plaintiff). In cross-examination, Dr Menakaya acknowledged that a report of 6 out of 10 pain was “significant pain”.
As noted above, Dr Menakaya gave evidence that if he had known that the plaintiff had complained of 6 out of 10 pain earlier that morning, it is “unlikely” that he would have discharged her. Care must be taken with this kind of ex post facto evidence about what a person would have done in a hypothetical situation: Rosenberg v Percival at [158]. However, here the evidence was that of a medical professional, who is able to draw upon his usual practice, education and experience in answering this hypothetical inquiry.
In all of these circumstances, I accept Dr Menakaya’s evidence that, if he had been aware of the plaintiff’s recent complaint of 6 out of 10 pain at 10:10am on 1 August 2019, it is unlikely that he would have discharged her. Rather, at the very least, Dr Menakaya would have personally examined the plaintiff before making any decisions concerning her discharge.
Dr Bodulkar likewise gave evidence that if he had known that the plaintiff was continuing to suffer pain, he would not have discharged her. When asked what action he would have taken if the plaintiff had complained of any pain at 12:25pm on 1 August 2019, Dr Bodulkar responded: Then we would have given her pain relief for that particular period, we wouldn’t have discharged her pending how her pain resolved, and if her pain resolves, then again, we have to revisit everything.
As outlined above, the plaintiff did not complain of pain at 12:25pm on 1 August 2019; but nor was she asked whether she remained in pain at that time. For the reasons provided above, I have found that whilst the plaintiff’s pain had reduced from the 6 out of 10 pain which she had reported at 10:10am that morning, the plaintiff remained in a level of pain which was more than discomfort at the time of discharge. I find that if the plaintiff had been asked her pain levels by either Dr Menakaya, or Dr Bodulkar at that time, she would have so reported.
Causation
As noted above, the plaintiff raised two separate claims in respect of her alternative case.
First, the plaintiff submitted that, had she not been discharged at 1:30pm and instead remained in hospital until 7:00pm on 1 August 2019, medical staff at the Hospital would have become aware of the plaintiff’s increased pain levels, and a laparoscopy would have been performed shortly after that time. The plaintiff further submitted that, after receiving appropriate advice, she would have expressed a preference that a salpingostomy be performed so as to save her remaining fallopian tube, and that the Court would conclude, on the balance of probabilities, that her fallopian tube would have been so saved.
The consensus of the experts was that the increase in pain at 7:00pm was likely to have been caused by bleeding within the fallopian tube. In these circumstances, I accept that it was more likely than not that the ectopic pregnancy would have been visible on a laparoscopy had a laparoscopy occurred at that time.
However, as Dr Lamaro and Professor Hyett explained, once there was bleeding in the fallopian tube, the prospects of a successful salpingostomy were minimal. As noted above, Dr Lamaro said that, in his experience, it has “never” been possible to do an elective salpingostomy with a bleeding ectopic pregnancy. Whilst Professor Hyett said that he would have offered a salpingostomy to a patient in the position of the plaintiff, he expressed a preference for a salpingectomy and considered that there was a “less than 50 percent chance” that a salpingostomy would be successful.
I am not satisfied on the balance of probabilities that a salpingostomy would have been successfully carried out if the plaintiff had not been discharged at 1:30pm. It follows that the plaintiff has not established that the defendant’s negligence caused the loss of her left fallopian tube. Accordingly, the plaintiff’s claims for damages for the loss of her left fallopian tube and for the loss of her fertility must be dismissed.
This leaves the plaintiff’s alternative claim, which was that even if a salpingostomy could not have been successfully performed when her pain increased at 7pm, as the plaintiff would have been in hospital at the time that her fallopian tube began to rupture, her pain levels would have been managed, she would have proceeded to surgery calmly, and would not have suffered psychiatric harm, or psychiatric harm to the same extent as in fact occurred.
When considering the question of causation on this counterfactual, I have kept in mind that the breach that I have found is not the decision to discharge simpliciter. I accept the evidence of Dr Lamaro and Professor Hyett that it would have been open to the Hospital to discharge the plaintiff if, after full advice had been given, she had agreed to be discharged. As outlined above, the breach that I have found is of discharging the plaintiff without discussing with her the option of remaining in hospital for ongoing observation until her pain had resolved or stabilised, and without adequately advising her that an ectopic pregnancy remained a likely cause of her symptoms, and the need to return to hospital immediately in the event of any increase in pain and/or bleeding.
Damages
Overview
The assessment of damages must proceed on the basis of the particular breach that I have found.
As outlined above, the plaintiff has not established that the defendant should have performed a laparoscopy, or a salpingostomy, at any time during her first admission. Further, the plaintiff has not demonstrated on the balance of probabilities that any salpingostomy, whether performed during the first admission, or performed on or shortly after 7:00pm on 1 August 2019 would have been successful. In other words, there is nothing that the Hospital could, or should, have done which would, on balance, have successfully saved the plaintiff’s left fallopian tube. In these circumstances, the plaintiff’s claim for the loss of an organ (her left fallopian tube), loss of fertility and ongoing pain and vomiting during menstruation must be dismissed.
The remaining damages that are sought relate to the physical pain which the plaintiff suffered from 7:00pm on 1 August 2019, psychological disorders, namely post-traumatic stress disorder and depression, and her marriage breakdown. As the defendant submitted, any psychological injury which the plaintiff would have suffered in any event, due to the loss of her pregnancy, the loss of her fallopian tube, and the stress of surgery, must be disentangled from the damage that was sustained as a result of the defendant’s negligence.
General damages
On the alternative case, the plaintiff claimed that her compensable injuries were as follows: (a) Significant actual physical hurt after discharge on 1 August 2019 until Emergency Surgery on 2 August 2023, including actual physical hurt from: (i) Increasing pain from around 6:00pm or 7:00pm on 1 August 2019; (ii) Extreme pain at 2:00am when the plaintiff started getting shooting pains into the left side of her arm into her shoulder; (iii) Pain from vomiting at 2:00am; (iv) After trying to go back to bed after taking pain relief waking up in excruciating pain; (v) Excruciating pain between waking up and waiting for her parents to arrive and arriving at Calvary Hospital at 6:38am on 2 August 2019; (vi) Excruciating pain between arrival at Calvary Hospital at 6:38am and being booked for emergency surgery at 9:35am on 2 August 2019; (vii) Excruciating pain while undergoing the ultrasound at 8:40am on 2 August 2019 which confirmed the rupture; (viii) Excruciating pain while waiting to be put under a general anaesthetic which commenced sometime after 10:00am on 2 August 2019. (A total of about 8 hours between excruciating pain commencing at 2:00am and surgery at 10:00am). (b) Actual physical hurt from the emergency life saving surgery on 2 August 2023, as opposed to what would have been an orderly informed surgery about having either a salpingostomy or salpingectomy; (c) Emotional harm from the fear of the possibility of death from about 2:00am on 2 August 2019, knowing that her symptoms were similar to the 2015 life threatening ectopic rupture, while at home in an uncontrolled environment until general anaesthetic commenced at about 10:00am on 2 August 2019, a period of about 8 hours. (d) Emotional harm from being aware that her remaining fallopian tube was rupturing meaning she may never be able to have a natural birth again; (e) Emotional harm for a psychiatric injury of either a post traumatic stress disorder or a chronic adjustment disorder and depressive condition; (f) Emotional harm for ongoing psychiatric symptoms, including regular nightmares for more than 4 years since 2 August 2019; (g) Emotional harm for a material contribution to the breakdown of the plaintiff’s marriage from the plaintiff’s lack of support during her discharge from hospital on 1 August 2019; (h) Loss of amenities of life for the past 4 years from the DSM-V psychiatric injury and the emotional harm suffered above; (i) Loss of amenities of life for the past 4 years from the actual physical harm arising out of the lack of sleep from the regular nightmares which can be disabling and effect [sic] energy levels and motivation; (j) Future emotional harm for permanent ongoing psychiatric residual symptoms (residual symptoms accepted by Dr Allnutt and Dr Ventura); (k) Future emotional harm for relapses of unknown duration for future triggering events; (l) Future loss of amenities of life from the PSM-V [sic] from a psychiatric injury or symptoms of a psychiatric injury, or relapses after a triggering event; (m) Future loss of amenities of life from actual physical harm arising out of the lack of sleep from regular nightmares effecting [sic] energy levels and motivation; and (n) Future loss of amenities of life from actual physical harm arising out of psychiatric symptoms suffered following a relapse from a triggering event.
Future psychological treatment
The plaintiff claims future psychological treatment as follows: (i) 52 x Psychological counselling sessions: - $11,700; (ii) 3 Consultations with a Psychiatrist per year for three years: - $3,150; (iii) Anti-depressants for 3 years @ $60 per month: - $2,160; (iv) 4 x GP Consultations per year @ $90 each for 3 years: - $1,080. Total: $19,090
In view of my finding that the plaintiff’s psychiatric illness is in remission, and my acceptance that her prognosis is good, I will not allow this claim in full. However, noting that there is a real prospect of a short-term re-triggering of her symptoms in the event of future obstetric and/or gynaecological complications in the future, I will allow a buffer of $5,000 for future psychological treatment.
Past economic loss
The plaintiff claimed past economic loss of income for two weeks being five days of recreation leave which she used after the salpingectomy surgery and a further five days off work on the anniversary of the surgery. I do not accept the claim for the plaintiff’s time off work immediately following the surgery. The defendant’s negligence did not cause the plaintiff to require a salpingostomy. Her condition was such that the performance of a salpingostomy was inevitable. The plaintiff has not established that she would have required less time off work if the salpingostomy had been performed on 1 August 2019, rather than as occurred on 2 August 2019. Accordingly, I will not allow this claim.
The plaintiff also claimed for her time off work on the anniversary of these events. The plaintiff said that she was crying “inconsolably at work”. She said “I took a couple of – I think it was a week after that”. The plaintiff did not have this response to her previous ectopic pregnancy, or to previous miscarriages. I am satisfied that the time that the plaintiff required off work was caused by her trauma related mental illness, rather than because of the grief of losing the pregnancy and/ or her fertility.
Examination of the plaintiff’s work records demonstrates the plaintiff only required three days off work on the anniversary of the events (Thursday 30 July 2020, Monday 3 August 2020 and Tuesday 4 August 2020). Her wage (inclusive of superannuation) was $352 per day. I will allow damages in the sum of $1,056 for the loss of those three days’ work. The plaintiff did not claim interest on past economic loss.
Future economic loss
Past out of pocket expenses
The plaintiff claimed the following past out of pocket expenses: (a) Fees for two consultations with Dr Felicity Brims ($295 and $100 respectively); (b) One fee from Ultrasound Care ($460); (c) Fees for three consultations at Ochre Medical Centre Casey ($90, $73.95 and $90 respectively); and (d) One fee from Dr Ahuja ($150).
Dr Brims is an IVF specialist and was seen by the plaintiff to discuss her fertility options post salpingectomy. The plaintiff acknowledged that this claim should not be allowed if her primary claim failed.
Each of the other past out of pocket expenses likewise relate to the plaintiff’s post-operative physical symptoms and her fertility (including the referral for IVF). These claims must be likewise disallowed as they do not arise on the basis of the liability which I have found.
Total damages
Costs
Orders
I certify that the preceding four hundred and eighty-seven [487] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Baker Associate: Date: 31 October 2025
Hartfield
Calvary Healthcare ACT Ltd
(1976) 12 ALR 551
(1986) 6 NSWLR 246
(1976) 12 SASR 574
(1995) 49 NSWLR 315
(1980) 146 CLR 40
For the reasons outlined below, I am not satisfied on the balance of probabilities that the plaintiff has established that the defendant should have performed a laparoscopy during her first admission. I am also not satisfied on the balance of probabilities that, if such a procedure had been performed, it would have been followed by a successful salpingostomy. Accordingly, the plaintiff has not established liability on her primary case.
However, I am satisfied on the balance of probabilities that the defendant breached its duty of care by discharging the plaintiff in the circumstances that occurred (that is, without offering the plaintiff an opportunity to remain in hospital for observation and pain management and without full information being provided to the plaintiff about her condition, and the risk posed by increasing pain). I am also satisfied on the balance of probabilities that this breach caused the plaintiff to suffer both physical and psychological harm. The defendant is liable for the damages caused by this negligence.
The plaintiff gave evidence that she continues to experience “broken sleep”. She also reported suffering from reoccurring nightmares, the subject of which has been dying in a hospital room. The plaintiff has not sought any medical assistance in relation to her psychological state, besides from her GP and her two consultations with Ms Izzard. She said that she has not done this because she did not “have a lot of faith in the medical profession at this point in [her] life”.
The plaintiff now has a new partner, with whom she intends to have two children. They intend to undergo IVF to facilitate this. The plaintiff explained that she is “sad and anxious” about the prospect of undergoing IVF.
Associate Professor Izzo expressed the opinion that if a salpingostomy had been performed, on the balance of probabilities, the plaintiff’s fallopian tube could have been salvaged, avoiding the “significant deleterious effects on [the plaintiff’s] fertility and health [including mental health]”.
In explaining this opinion, Associate Professor Izzo commenced by disputing Dr Lamaro’s description of the plaintiff at her initial presentation as having “stable observations, left side pelvic and abdominal discomfort”, adding “[t]his is a strange way of defining extremely severe pain which require[s] Fentanyl the most powerful opioid that we have at our disposal”. Associate Professor Izzo also again reiterated that it was important that the plaintiff had pain on her left side, having had a previous ectopic pregnancy on her right side. He described the risk of a repeat ectopic pregnancy as 15% (in contrast to his previous statements that the risk of a repeat ectopic pregnancy was 10%).
Associate Professor Izzo noted that the plaintiff’s beta-hCG level on 31 July 2019 was 2738, down to 2021 whilst still in hospital the following day. (It is noted that the reference to 2021 appears to be an error, as the plaintiff’s recorded hCG level at this time was 2071). He continued: The Royal College of Obstetricians and Gynaecologists Guideline 21 reviewed 2010 (Appendix A) states that expectant management is an option for clinically stable, asymptomatic women with a decreasing serum hCG initially <1000 iu. It also states in the same guideline that using initial upper level of serum hCG of 1000–1500 to diagnose pregnancy of unknown origin, women with minimal or no symptoms at risk of ectopic pregnancy should be managed expectantly for 48–72 hours or follow up could be considered for active intervention is [sic] the symptoms of ectopic pregnancy occur or serum hCG levels rise above the discriminatory level of 1000. So in fact, again the levels of 2000 are above what the college recommends for expectant management and even in those women it states where there was no risk of ectopic pregnancy. [The plaintiff], in fact had had a previous ectopic and I have said before that increased her risk quite dramatically to 15%. There was no place for expectant management in such a patient.
Associate Professor Izzo considered that it was “irrelevant” that the plaintiff’s BhCG levels had reduced by 22.2%, because they were still above the margin of 2000, “again not an indication for expectant management”. He reiterated his view that the plaintiff “should have been kept in hospital and operated on”.
As to the choice between a salpingostomy and a salpingectomy, Associate Professor Izzo expressed the view that “salpingostomy is preferred for patients who desire future child bearing and in whom the contralateral tube is absent or damaged”. Whilst acknowledging that the availability of IVF has “to a certain extent decreased the need to preserve a damaged fallopian tube”, he noted that many patients “do not have access to IVF for financial, geographical or religious reasons” and that many women would prefer to fall pregnant naturally.
Associate Professor Izzo concluded: In summary then, I have not changed my opinion and I disagree with Dr Lamaro. Expectant management as took place here was unacceptable, does not follow the guidelines, unlike what Dr Lamaro wants us to believe and with the parameters discussed, is dangerous as we found here with a ruptured ectopic. From the clinical picture of the acute pain and then settling, it certainly appears that the ectopic did not rupture till the second presentation this is supported by the fact that the first ultrasound did not see any free blood as occurs with a ruptured ectopic. Had she thus had a salpingostomy at the initial presentation, the tube would have been preserved rather than left in the state that she is now in with the only option remaining to her is IVF. Dr Lamaro’s Second Report
In a report dated 19 February 2022, Dr Lamaro addressed further questions asked by the defendant in response to the third report of Associate Professor Izzo.
Dr Lamaro was asked to consider whether he agreed with Associate Professor Izzo that the plaintiff was in “severe pain” on her first admission. Dr Lamaro did not agree.
In expressing this opinion, Dr Lamaro noted that the plaintiff had inhaled methoxyflurane, which he explained, is a drug that lasts for around 25 minutes and is given for acute pain relief. He noted that the plaintiff did not require any further pain relief until 7 hours later (5pm that night), and that she had small doses of Fentanyl at 5:00pm, 8:30pm and 11:00pm, and a dose of Paracetamol at 2:30am. Dr Lamaro also noted that the Progress Notes recorded that the plaintiff spent most of the night sleeping, and only required one dose of Paracetamol the following morning at 10:00am.
Dr Lamaro summarised his opinion on the issue of pain as follows: [The plaintiff] underwent multiple reviews through the day and was eventually examined with consultant and registrar, found to be pain free and discharged with outpatient management. Pain is a very subjective symptom. This patient indeed presents with pain, which eventually completely settles by time of discharge. While it must be taken into account for management purposes, it is one of multiple clinical elements that help us differentiate between things such as threatened or complete miscarriage, an ectopic pregnancy or a corpus luteal event or other. Typically in a patient unable to tolerate any other pain agents, small doses of fentanyl are often used in all emergency departments as first line rapid analgesia, along with other opioids such as morphine. The use of such agents does not necessarily reflect the severity of pathology, but rather acts as an option for a very rapid onset agent to deal with a patient in pain.
Dr Lamaro disagreed with Associate Professor Izzo concerning the significance of “free fluid” in the plaintiff’s abdomen, noting that small amounts of free fluid are not infrequently seen in healthy females of reproductive age.
Dr Lamaro confirmed his view that it was appropriate to rely on the RCOG and NICE guidelines when considering appropriate medical practice, and noted that these guidelines are reviewed every few years based on new data and Committee recommendations.
Dr Lamaro maintained that the standard of care given to the plaintiff on her first admission was appropriate, as she had a negative ultrasound, declining beta-hCG levels and was “pain free” at the time of discharge. He also reiterated that none of the criteria for surgery were met, and indeed considered that a surgical intervention would have itself constituted a “deviation from standard of care”.
Dr Lamaro concluded: In summary, the first admission was managed well within standard of care accepted in any public hospital in Australia. The thorough assessment, while of course not initially diagnosing an ectopic, had been carried out with all appropriate steps for that specific clinical presentation. We all feel for the plaintiff’s experience, and wish we could have prevented this outcome when looking in retrospect. However, at the plaintiff’s first presentation, the appropriate standard of care was provided by all clinicians, utilising the evidence at hand and combinations of the above guidelines. Professor Hyett’s Report
In his report, dated 22 June 2023, Professor Hyett noted that the plaintiff’s presentation on her first admission was compatible with a complication of early pregnancy, and that the plaintiff’s previous history of an ectopic pregnancy increased the risk of her having another ectopic pregnancy.
Professor Hyett expressed the opinion that the nature of the plaintiff’s symptoms (light vaginal bleeding, spotting, localised abdominal pain and diarrhoea) were “more likely compatible with ectopic pregnancy rather than miscarriage”.
Professor Hyett considered that as the plaintiff was not acutely unwell on 31 July, was haemodynamically stable and as the investigation had concluded that she had a “pregnancy of unknown location”, it was “appropriate to manage the situation conservatively and expectantly, awaiting further developments – either in clinical presentation or with further test results”.
Professor Hyett explained that if a laparoscopy had been performed at the time of the plaintiff’s first admission: (a) There would have been a “small risk” of the surgery adversely affecting a viable pregnancy; (b) There would have been a “small risk” that the ectopic pregnancy would not be visible; (c) There would have been a significant chance that the ectopic pregnancy would “abort spontaneously without further complication”, such that any intervention (which would inflict more tubal damage) would have been unnecessary; (d) There would be a significant risk, if a tubal ectopic pregnancy was identified and a salpingostomy (repair of the fallopian tube) attempted, that the procedure would not be technically possible, requiring a salpingectomy (removal of the fallopian tube); (e) If a salpingostomy had been successfully performed, there would be an ongoing risk of persistent viable tubal trophoblast – requiring ongoing serial evaluation to track hCGs; and (f) If a salpingostomy had been performed – damage to the tube would have been compounded and there would be a further increase in risk of ectopic pregnancy.
Professor Hyett concluded: Given these risks, expectant management was, in my opinion, the more appropriate course of action. It would be normal practice to monitor hCG changes over a 48 hour cycle and to plan a second scan for a woman with a ‘pregnancy of unknown location’ seven days after the first scan. Expectant management could involve either inpatient or outpatient management. As it may take another seven days to reach a diagnosis, the majority of women are managed in an outpatient setting. There is a risk associated with this in so far as if there is an ectopic pregnancy and this ruptures then a woman could bleed significantly – and this is a potentially life-threatening situation. The decision as to whether a woman should be admitted or can be managed as an outpatient will therefore depend on medical assessment of degree of risk (likelihood of this being an ectopic, clinical symptoms/ stability and an individual’s personal circumstances with respect to being alone or accompanied at home and being able to return to hospital easily and quickly) and should, in my opinion, be a shared decision made with the patient. In circumstances where a patient has been admitted overnight for observation, symptoms have settled, and there is no evidence of an acute complication – with investigations that have led to the description of a ‘pregnancy of unknown location’, then one reasonable option for ongoing care would be to discharge the patient home whilst awaiting further tests. This is with the caveat that when women are discharged home in this situation, they are assessed to ensure that they understand the potential for a future diagnosis of ectopic pregnancy and the small risk of rupture which will need to be managed promptly. They need to be able to recognise any change in symptoms and return to the hospital in a timely fashion.
Professor Hyett was also asked whether this opinion would alter if the plaintiff had continuing pain at the time of discharge, that was being managed by pain medication. With reference to current NICE guidelines, he responded that “significant ongoing pain” would need to be factored into the risk assessment concerning the relative merits and disadvantages of admission or outpatient treatment and continued: A significant level of pain would make it less likely that the clinical situation was completely stable, increasing the potential for risk of rupture in an outpatient environment. The balance of risk may therefore favour admission… The NICE guidelines
As noted above, Professor Hyett and Dr Lamaro made express reference to the NICE guidelines in their respective reports. These guidelines concern the diagnosis and management of ectopic pregnancy and miscarriage in women with complications in early pregnancy.
The NICE guidelines relevantly provide that expectant management is only an option for women who are clinically stable and pain free, have a tubal ectopic pregnancy measuring less than 35 mm with no visible heartbeat on transvaginal ultrasound, have hCG levels of between 1000 and 1500, and are able to return for follow-up. The guidelines also recommend that where tubal ectopic pregnancy is being managed expectantly, hCG pathology is to be repeated 2, 4 and 7 days after the original test.
The guidelines further recommend that patients who are able to return for follow-up be offered a choice of methotrexate or surgical management where hCG levels remain between 1500 and 5000, and only if they are experiencing no significant pain, have an unruptured ectopic pregnancy smaller than 35mm with no visible heartbeat, and no intrauterine pregnancy as confirmed on an ultrasound scan.
Surgical management is specified as “a first-line treatment” if the patient has an ectopic pregnancy and is suffering from significant pain.
Dr Lamaro was unequivocal in his view that it would not be appropriate to perform a laparoscopy simply because a patient asked for one. He explained that such an approach: … very much confuses the picture for the next 48 hours at least. So you’ve got a post-operative patient. You may not have seen anything at that time where when there is an ectopic there. She’s then on the ward. She’s on narcotics for post-operative pain. She’s got shoulder tip pain because of post-operative blood escopic [sic] gas distension, which is there for several days, and then picking her – picking on an early event is near impossible because it’s confused with that early inappropriate, in my view, diagnostic laparoscopy.
Dr Lamaro gave evidence that if the plaintiff had stayed in hospital, and then her pain had increased (as occurred), “the intervention would have been the same”, that is, a laparoscopy which resulted in the performance of a salpingectomy (rather than a salpingostomy).
In contrast, Associate Professor Izzo maintained his opinion that a laparoscopy should have been performed at the plaintiff’s first admission. He explained: … the thing is she – she should have had a laparoscopy. If a tubal ectopic pregnancy was seen, then – and then that should have been treated by salpingostomy because she had lost the other tube. If, however, you couldn’t see anything – there’s a possibility that you don’t see much at that stage – then she could have been conservatively treated with methotrexate, because I believe that with a level of 2,000 and if there was an assumption that it was intrauterine, you should have seen something inside the uterus and there was nothing seen inside the uterus. So I think that the risk of an intrauterine pregnancy is virtually nil.
Each of the experts were also asked their views concerning the significance of the pain which the plaintiff had experienced at 7:00pm on 1 August 2019, and at 2:00am on 2 August 2019. Dr Lamaro considered that: … the fact that she started to have pain at 7:00pm and it escalated, and she re-presented with severe pain at 2:00am tells us that she bled out of that and out of that ectopic. And so sometime between leaving the hospital and re-presenting, she has expanded that tube with an ectopic pregnancy that has created then acute bleeding and its, you know, shoulder tip pain is obviously free blood in the peritoneal cavity which has stimulated that response. So she has bled probably even before 7. It could have been 4 or it could have been 6. It may have trickled and not been seen by scan, you know, on first presentation. I mean all that’s possible.
Dr Lamaro later expanded upon this answer, indicating that the plaintiff would not have had bleeding prior to discharge, but that “somewhere between her leaving the hospital and likely somewhere around that evening, and overnight, that’s when a major bleeding event has occurred”. Dr Lamaro explained that if there had been bleeding whilst the plaintiff had been in hospital: … it would have been very obvious. She would have had an acute abdomen. When she was examined, everyone reports soft, non-tender abdomen, no peritonism. That’s not consistent with a volume of free blood in the pelvic and abdominal cavity, and she – you know, she would have shown some signs – blood pressure, pulse, severe pain, and she wouldn’t have – I think it described – the nurses commented that she walked out to the car park. Those patients won’t be walking anywhere. They will not be able to move with that sort of pain – with that sort of rupture and free blood…
Associate Professor Izzo agreed that once the plaintiff had shoulder tip pain “that basically means – that’s consistent with intraperitoneal bleed, so, certainly, that was the end point”. He said that “something happened before” but that it was “difficult to pinpoint exactly the time that the bleeding out of the tube or the rupture occurred, [for a] significant amount of blood to irritate the diaphragm and then to get referred pain”. However, he considered that the bleeding would have occurred “soon after” the plaintiff was released from hospital.
Professor Hyett considered that the 7:00pm pain was “more likely to be related to the fact that there’s bleeding into the abdominal cavity rather than purely within the tube”. In those circumstances, he considered that there was: … little difference from an anatomical perspective and from an operative perspective in the nature of what’s happening in the tube, whether you had a mild level of pain at 7:00 o’clock or a more severe level of pain at 2:00am.
Professor Hyett continued: … you can book-end the timing of intra-abdominal bleeding by the two scans. So the first scan, there’s no significant intra-abdominal bleeding, and the second scan, there appears to be more significant intra-abdominal, and then between those two time points, trying to localise that on the basis of pain seems reasonable. So I think by the time you’re becoming symptomatic, it’s likely that you have intra-abdominal bleeding at that point.
As noted above, all three experts accepted that the plaintiff’s increasing pain at 7:00pm would have been a matter of concern to those managing the plaintiff, if she had been in hospital at that time. Dr Lamaro considered that it would have been appropriate for a further ultrasound to have been taken, and that if free blood had been seen in that scan, the plaintiff “definitely” would have been operated on that night. He maintained that in these circumstances, a salpingectomy would have followed.
Associate Professor Izzo gave evidence that an immediate laparoscopy would have been appropriate, and maintained that it is likely that a successful salpingotomy would have then been performed, resulting in the saving of the plaintiff’s fallopian tube.
Professor Hyett described his opinion as lying “between the other two experts”. He explained: [M]y rationale for that would be first a successful salpingostomy would be associated with further degree of tubal damage on a tube that’s already damaged and that would have an even higher chance of having an ectopic in a further pregnancy. But, also, there would also be quite a high chance that that tube was so significantly damaged that, in fact, essentially you would have a tubal cause of infertility at that point. And, thirdly, in the event that you then ended up going down an IVF process, in my view, the continued presence of an inflamed and scarred tube potentially reduces the risk of successful conception in an IVF cycle. So, I think, if you’re hard-headed and not emotive about this, and if you consider that there’s no cost associated with IVF I think that you could make an argument that the most definitive treatment at this stage is a salpingectomy… Having said that, I recognise the comments of Associate Professor Izzo that many women – their circumstance would be quite desperate to save that tube and therefore I don’t think it’s unreasonable to talk about the process of salpingostomy. But I think that would be with the caveat that you could only perform – you couldn’t promise to perform that procedure. And you would have to describe what the process of salpingostomy is, which is essentially like shelling a pea out of a pod but it’s a pea that’s often quite strongly adhesive to the pod, and when you open the pod, the pod typically bleeds. So you have to use diathermy to cauterise the bleeding as you were going along, which causes more tubal damage, and there is a risk that you won’t remove all of the trophoblast, so there is a risk of what’s called a persistent trophoblast disease which will need further follow-up, and there’s a significant risk, particularly if you are bleeding, that you will not be able to do that in a controlled manner and that, in the process of attempting to do a salpingostomy, you will end up doing a salpingectomy, and I think the patient has to be aware of that and understand that before you start a procedure.
He said that, in his experience, there was a less than 50% chance of success that a salpingostomy would be successful, and that his preferred treatment would have been a salpingectomy. He said that this advice would also form part of the consent process.
Dr Lamaro agreed with the opinion of Professor Hyett as set out above. Adopting Professor Hyett’s ‘pea analogy’, he explained that: … the peas vary, you know, through the whole pod. So you’ve got to shell it out and then we – in that shelling process, there’s a lot of bleeding and then you’ve got to destroy some of that internal pod and you’re relying on the internal features of that pod to move the – you know – the next pea down the pod and that… affects its ability to do that.
Dr Lamaro said that, in his experience, it has “never” been possible to do an elective salpingostomy with a bleeding ectopic pregnancy.
The plaintiff told Dr Allnutt that she was unlikely to enter an intimate relationship again, which she attributed to her self-consciousness over her body image and relative infertility. The plaintiff also told Dr Allnutt that for the first six months following the surgery, she would have nightmares about dying in an operating theatre approximately two or three times a week. At the time of Dr Allnutt’s examination, the frequency of these nightmares had fallen to approximately once a month. The plaintiff also reported that seeing other mothers with children would trigger “ruminative thoughts”. She denied experiencing suicidal ideation.
Dr Allnutt concluded that the plaintiff exhibited “a constellation of symptoms consistent with a persistent depressive disorder, with associated post-traumatic stress symptoms”. Dr Allnutt observed that the plaintiff’s depressive symptoms had fluctuated in intensity over time, noting her significant downturn in mood around the one-year anniversary of the 2019 ectopic pregnancy.
Dr Allnutt described the plaintiff’s intermittent nightmares and increased irritability as “post-traumatic stress symptoms”, but stopped short of diagnosing the plaintiff with “a full blown post-traumatic stress disorder”. Rather, Dr Allnutt concluded that “a diagnosis of a chronic adjustment disorder with a depressed and anxious mood could be raised”. In Dr Allnutt’s view, the events of 31 July and 1 August 2019 had “substantially contributed to” the plaintiff’s mental state”.
Dr Allnutt was of the view that the plaintiff’s mental condition had not stabilised, and that both improvement and deterioration were possible. Nonetheless, he considered the plaintiff’s prognosis to be “relatively poor for the medium to long term”, given the persistence of her relative infertility and ongoing scarring. He recommended treatment of weekly to two-weekly consultations over six to 12 months, depending on the plaintiff’s clinical response.
When asked to respond to Dr Allnutt’s report dated 16 February 2021, Dr Ventura noted that Dr Allnutt had assessed the plaintiff almost two years before her examination. Dr Ventura said that it was “likely that [the plaintiff’s] symptomatology was more severe at that time”, and suggested that this may explain the difference in the diagnostic opinions between her and Dr Allnutt. She said that whilst antidepressant medication may have been appropriate in February 2021, this was no longer reasonable in view of the plaintiff’s then condition.
At this point, Senior Counsel for the defendant informed the Court that he would tender Dr Ventura’s report.
I considered that it was necessary and in the interests of justice for both psychiatrists to explain their opinions, particularly in respect of their differing diagnoses concerning adjustment disorder and post-traumatic stress disorder, and in respect of the plaintiff’s alternative case. As to the former, central to the defendant’s opposition was the proposition that an adjustment disorder is different to post-traumatic stress disorder. That issue could only be determined by hearing oral evidence from the experts. As to the second issue, in circumstances where Dr Allnutt had provided a report which expressed the view that adjustment disorder was caused by a combination of the plaintiff’s knowledge of her loss of her fertility, as well as the trauma of the events of 1 August 2019, determination of the plaintiff’s alternative case required him to explain whether he was of the opinion that the plaintiff have suffered psychiatric injury whether she was discharged or not.
Whilst it was unsatisfactory that the plaintiff had not notified the defendant of the results of Dr Allnutt’s further examination, I considered that it remained in the interests of justice for the Court to receive the most up to date information concerning the plaintiff’s condition. I considered that it would be artificial to restrict Dr Allnutt’s opinions concerning his prognosis to what his opinion had been when he first prepared his report in 2021, particularly when he had formed the view that the plaintiff’s prognosis was improved in comparison to his initial consideration.
I then made the following ruling: I permit the experts, Dr Stephen Allnutt and Dr Antonella Ventura, to be called. To the extent necessary, I grant leave to the plaintiff to adduce evidence from Dr Allnutt of his opinions based on his examination of the Plaintiff last week.
The experts then gave evidence by AVL by conclave. Their evidence did not conclude that afternoon. However, they were able to make other arrangements for their evidence to continue the following morning.
At the conclusion of the evidence that day, I informed the parties that I would be available from shortly after 9:00am the following morning, and I requested that the parties contact the Court if anything arose overnight which could delay the conclusion of the concurrent evidence.
No communications were received from either party. However, 10 minutes after the time that the experts were scheduled to give evidence the following morning, defence counsel raised a further objection to the evidence of Dr Allnutt and Dr Ventura. The defendant’s counsel submitted that the plaintiff should not be permitted to put the counterfactual upon which her alternative case was based to either expert. Again, the basis of the objection was that this was a matter which should have been put to the experts at an earlier point in time. The defendant’s counsel also reiterated her complaint concerning the failure to notify the defendant of Dr Allnutt’s most recent examination of the plaintiff.
Bearing in mind the delay which the experts had already borne as a result of the defendant’s late notifications of objections, I held that the expert evidence would be admitted provisionally, and that a decision would be made on the admissibility of the evidence as a part of the final judgment in this matter.
As noted above, in its written submissions, the defendant formally objected to the plaintiff’s reliance on her alternative case as not being within the scope of the pleadings. As a consequence, the plaintiff sought leave to amend her Statement of Claim. I granted the plaintiff leave in Hartfield (No 1). Following that leave, the defendant was permitted to obtain and tender further psychiatric evidence in response to the plaintiff’s claim (namely, the report of Dr Skinner, as outlined below). In oral submissions, Senior Counsel for the defendant advised that the objection to Dr Allnutt and Dr Ventura’s reports was no longer pressed.
Dr Ventura explained: Had she not feared for her life and I can only make that assumption as I don’t know what the outcome of her being in hospital and reporting that then earlier would be but had she not been in fear for her life because she was in a controlled environment with medical resuscitation immediately that about to her it is far less likely that she would have felt out of control and in fear for her life and therefore, although, she may have been stressed by the difficult pregnancy criteria (a) for post-traumatic stress disorder would not have been met. And it’s unlikely that she would have suffered from a trauma related condition. She may have suffered from a grief related condition.
Similarly, Dr Allnutt explained: … the context of being in the hospital, knowing that people know what’s going on. As Dr Ventura said in a controlled environment where anything went wrong that could be addressed immediately. The confidence that the clinicians knew what they were doing and that they were on board of what was happening at the time would have been far less stressful than being at home experiencing symptoms that suggest something life threatening and then having to get to the hospital in time to address those symptoms so as not to die. I think that those circumstances are dramatic. But I agree with Dr Ventura that the former does not – would not meet – would probably not meet criterion (a) but the latter would.
The experts further agreed that should the plaintiff elect to undergo IVF in the future, and should those efforts be unsuccessful in achieving a viable pregnancy, the plaintiff may experience an aggravation of her mental health condition. However, they differed in their reasons for so concluding. Dr Allnutt stated that one of the symptoms of post-traumatic stress is being vulnerable to triggers that symbolise, mimic or are consistent with the trauma, and as the plaintiff has already been exposed to fertility-related trauma, she is more vulnerable to being triggered by circumstances symbolising that original trauma than someone who does not carry that original trauma. Dr Ventura, on the other hand, was of the opinion that, should the plaintiff undergo unsuccessful IVF, her “accumulative grief” of multiple lost pregnancies may be reignited, but her trauma of fearing for her life will likely not be.
In cross-examination, both experts were asked whether the plaintiff’s choice to not attend hospital sooner was consistent, or inconsistent, with the plaintiff’s self-report that she was out of control and in fear of her life. Dr Allnutt responded: … a person in - being in hospital when you - when you're faced with a life threatening or any medical misadventure or problem is at - provides far greater security than being 17 kilometres away from the hospital even if you are with family members because you've still got to traverse 17 kilometres. So we talked - I think we both were referring to the environment rather than the person. Look, I would say that, you know, not going immediately and not waiting is there's a number of – number of factors. It's early in the morning, she's got responsibilities for her child, was the pain of a severity that she felt she needed to go, was the pain quite – that type of pain that – that – that made her think she may die, was it poor judgment on her part to delay and not go earlier. Because she was potentially putting her life at risk if she did have a ruptured ectopic. I think the most - the more important point is that, at some point, she believed that she might die. Whether that occurred five minutes before, or half an hour before, or three hours before, I think is less relevant to the - to the causation issue then that she believed that she might have died of a ruptured ectopic pregnancy. Now, that is a matter for the court to determine because that's a factual matter and based on reliability and - of what she said.
Similarly, Dr Ventura responded: It does not appear as if, when she's starting to experience the pain at 7:00pm, she was terribly frightened as she went to sleep. However, it's likely that she was very, very frightened after she's experienced the pain in her shoulder and started to vomit. Now, to expect a human being who was experiencing a lot of pain, turmoil and fear to act in a controlled and rational manner, it – it's not necessarily, you know, a rational expectation, and I think - - - … … I think we are using the word ‘out of control’ in different – in different ways. I – I am actually putting out there the fact that this woman was vomiting, was about to lose a pregnancy, was in a lot of pain. She may have not felt fully in control of her action in a normative manner, not in a psychotic manner, and therefore, the fact that she did not make all the immediate arrangements to travel to hospital when maybe she should have, is not indicative of the fact that she was not in fear of her life.
Dr Ventura continued: There's – she may have been very, very frightened. I don't know when she felt frightened for her life, but at some stage, she did feel quite frightened for her life, and I think the facts that she was – the facts were that she was experiencing what she had experienced before – an ectopic pregnancy – and she had been told in the past, that can be a life-threatening condition. So her fear is not just subjective but she had some objective reasons for believing that. I can't comment on how long it took her to act on that fear and organise herself to get to hospital.
Both psychiatrists agreed that other stressors in the plaintiff’s life (such as separating from her husband, and regularly caring for her teenage step-daughter) may have contributed to the plaintiff’s overall distress, but they considered that these had not contributed to the plaintiff’s “trauma response”.
Finally, the psychiatrists were asked about their views concerning the plaintiff’s prognosis.
In response, Dr Ventura reiterated her view that the plaintiff’s post-traumatic stress disorder was in remission at the time that she examined her. In this respect, Dr Ventura noted that in order to meet the criteria for post-traumatic stress disorder under DSM-5, it is necessary for the person’s symptoms to have a “significant impact on social, professional or other important areas of function or ‘marked distress which is out of proportion to the severity or intensity of the stressor taking into account the external context and the cultural factors that might influence symptoms”.
She continued: And my argument here is that at the time I saw the plaintiff she did not have evidence of post-traumatic stress disorder. She certainly had residual grief symptoms but not post-traumatic stress disorder. I did not have an opportunity to re-examine the plaintiff during the time she was probably being re-triggered by the current proceedings so it is possible that in the context of the current proceedings she may have developed symptoms which are marked distress which is out of proportion with the severity and intensity of the court proceedings or it may not. I will never know because I was never given the opportunity to examine her but I think we need to stress the fact that it needs to be marked distress which is out of proportion and I don't know that anybody's really demonstrated that from someone who I examined to have been in remission about a year ago, 18 months ago.
Dr Allnutt also agreed that under DSM-5, a diagnosis of post-traumatic stress disorder requires either “clinically significant distress or impairment in social occupational important areas of functioning”. Dr Allnutt explained that in his last assessment, he found that the plaintiff had “continued to manifest a number of symptoms” that he considered to be “of a post-traumatic nature”, which he believed “were [in] keeping with what one would expect, and residual symptoms”.
The purpose of s 43 was explained by the Court of Appeal in Austen v Tran [2023] ACTCA 44 at [64] as follows: Provisions such as s 43 of the Civil Law (Wrongs) Act were introduced in legislation by the States and Territories of Australia following the report of the panel chaired by the Hon Justice Ipp, Review of the Law of Negligence (Final Report, 30 September 2002). The types of considerations referred to in s 43 are familiar to common lawyers, because while the statutory provisions now prevail, s 43 recalls to a substantial degree the principles relating to breach of duty essayed in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47–8 (Mason J). The mischief that the Ipp Panel identified and sought to address was that it was thought that the decision in Shirt was widely perceived to have created a situation in which lower courts might be in danger of ignoring that the probability of a risk, however high or low it may be, was only one element in determining the factual question of what reasonable care required. The Ipp Panel referred this consideration at [7.14] of its final report – … a danger that Shirt may be used to justify a conclusion – on the basis that a foreseeable risk was not far-fetched or fanciful – that it was negligent not to take precautions to prevent the risk materialising, and to do this without giving due weight to the other elements of the negligence calculus.
The Court continued at [67]: At common law, what reasonable care requires directs attention to the type of factors identified by Mason J in Shirt, which include the magnitude of the risk. The inquiry is a prospective inquiry, and it is in error to reason backwards by asking what reasonable steps would have prevented the risk of injury materialising, and holding a person liable in negligence because those steps were not taken: see, Rosenberg v Percival [2001] HCA 18; 205 CLR 434 at [16] (Gleeson CJ); Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422 at [126], [128], [160] (Hayne J); Roads and Traffic Authority (NSW) v Dederer at [18] (Gummow J). The same observation applies to the inquiry required by s 43 of the Civil Law (Wrongs) Act. See also Fuller v Australian Capital Territory [2024] ACTCA 19 at [86] – [87].
When considering questions of breach, it must be borne in mind that a number of acts or omissions which do not constitute individual breaches may, when combined together, amount to a breach of duty, “as one failure augments the others to place a plaintiff at an unacceptable risk of injury”: Wilkins v Council of the City of Broken Hill [2005] NSWCA 468 at [44].
In these circumstances, it does not appear that Calvary Hospital would fall within the definition of “the Territory”. Nor is the Hospital an “administrative unit” or a “Territory Authority”: see Dictionary to the Legislation Act 2001 (ACT); s 13 of the Public Sector Management Act 1994 (ACT).
An administrative unit under s 109(b) means “an administrative unit for the time being established under the Public Sector Management Act 1994, section 13(1)”: Dictionary to the Legislation Act 2001 (ACT). Calvary Hospital would not appear to satisfy this definition: s 13(1) of the Public Sector Management Act 1994 (ACT) and the Administrative Arrangements 2019 (No 1) (ACT), in force as at 31 July 2019. It does not appear that any regulation has been made pursuant to ss 109(1)(d) and (e)).
Accordingly, it does not appear that s 110 applies to these proceedings. However, as outlined further below, nothing turns on this, as the particular contentions made by the defendant in reliance on s 110 should not be accepted, regardless of whether s 110 is capable of applying to the defendant. In these circumstances, and as the proper construction of s 110 was not the subject of submissions by either party, it is not necessary to express a concluded view concerning the application of s 110 to the defendant.
In Alananzeh v Zgool Form Pty Ltd [2024] ACTSC 16 at [137] (citations omitted), McWilliam J helpfully set out the following principles which apply to the Court’s consideration of contributory negligence under s 102 of the Wrongs Act:
Consequently, the plaintiff alleges that the risk of harm to be addressed was foreseeable and not insignificant, such that any reasonable hospital would have taken reasonable steps to address it. The plaintiff identifies the reasonable precautions the defendant was required to take as including the need to: (a) appropriately assess, examine and diagnose the Plaintiff’s condition as evidenced by the lack of intrauterine pregnancy; (b) exclude a diagnosis of an ectopic pregnancy; (c) advise the Plaintiff that she should undergo a diagnostic laparoscopy to determine whether she had an ectopic pregnancy; (d) arrange for appropriate investigations to be undertaken; (e) arrange for appropriate referrals and testing; (f) perform a diagnostic laparoscopy to diagnose or exclude an ectopic pregnancy; (g) implement an adequate treatment plan with respect to the Plaintiff’s condition; (h) appropriately advise the Plaintiff in relation to her condition and in particular any steps that ought to be taken due to the lack of intrauterine pregnancy; and (i) not discharge the plaintiff where she was, and had been, experiencing significant pain during her admission on 31 July and 1 August 2019 and remained at significant risk of experiencing a ruptured ectopic pregnancy.
The plaintiff alleges that the defendant breached this duty of care by: (a) failing to appropriately assess, examine, diagnose and treat the Plaintiff on 31 July 2019 and 1 August 2019; (b) given the Plaintiff’s history, symptoms and investigations, performing expectant management of the Plaintiff on 31 July 2019 and 1 August 2019; (c) failing to secure or arrange for appropriate investigations to be undertaken in respect of the Plaintiff or her condition on and from 31 July 2019; (d) failing to implement a proper or adequate treatment plan with respect to the Plaintiff's condition on and from 31 July 2019; (e) failing to diagnose the Plaintiff with an ectopic pregnancy on 31 January 2019 and 1 August 2019; (f) failing to treat the Plaintiff's ectopic pregnancy on 31 July 2019 and 1 August 2019; (g) failing to refer the Plaintiff to a surgeon for a diagnostic laparoscopy on 31 July 2019 and 1 August 2019; (h) failing to perform a diagnostic laparoscopy on 31 July 2019 and 1 August 2019; (i) failing to perform surgery on the Plaintiff for an ectopic pregnancy on 31 July 2019 and 1 August 2019; (j) failing to advise the Plaintiff on 31 July 2019 and on 1 August 2019 of the risks to her remaining fallopian tube should she have an ectopic pregnancy; (k) failing to advise the Plaintiff on 31 July 2019 and on 1 August 2019 of the risks to her being able to fall pregnant naturally in the future, should she have an ectopic pregnancy; (l) failing to ensure that any treatment recommended for the Plaintiff's condition was reasonable, appropriate, and necessary for her condition on and from 31 July 2019; (m) failing to appropriately advise the Plaintiff on and from 31 July 2019 in relation to her condition and in particular any steps that ought to be undertaken considering the lack of intrauterine pregnancy; and (n) failing to take reasonable steps to reduce the risk of foreseeable injury to the Plaintiff arising from her condition or from the medical services provided or required; and (o) discharging the plaintiff where she was, and had been, experiencing significant pain during her admission on 31 July and 1 August and remained at significant risk of experiencing a ruptured ectopic pregnancy.
The defendant does not admit that the risk of harm to the plaintiff was foreseeable and not insignificant and does not admit that any reasonable hospital would have taken the measures set out above. The defendant further denies that its scope of duty extends to the harm identified in the Amended Statement of Claim, relying, inter alia, on s 110 of the Wrongs Act.
The defendant further alleges that the performance of expectant management of the plaintiff was appropriate in the circumstances, and that exploratory or other surgery was clinically contraindicated and would have created additional risks to the plaintiff. The defendant further alleges that the decision to discharge her was reasonable at the time and was clinically warranted.
Nonetheless, some aspects of these notes must also be approached with caution.
First, care must be taken drawing inferences from the administration of Fentanyl. Contrary to Associate Professor Izzo’s apparent assumption, it does not follow from the fact that the plaintiff was administered Fentanyl that the plaintiff was in significant pain. The evidence is that the plaintiff was administered Fentanyl because she was allergic to opioid medications. When assessing the plaintiff’s pain levels, it must also be borne in mind that the half-life of Fentanyl is 90 minutes, and so that drug would not have been impacting upon the plaintiff’s pain levels at any time proximate to her discharge.
Second, it is clear from the medical notes that the plaintiff did not display any objective symptoms of pain during her first admission. Her heartrate, blood pressure and temperature are each positively recorded as being within normal ranges throughout her first admission. However, it does not follow from these recordings that the plaintiff was not in pain during the course of her first admission. The experience of pain is individual and subjective, and a patient may experience pain even without accompanying objective symptoms, such as increased heartrate or blood pressure. Although Dr Menakaya said that he would expect objective signs of pain to accompany a self-reported pain level of 6 out of 10, he also acknowledged that he would not disregard that subjective report simply because it was not accompanied by any objective sign, such as an increased heartrate, or blood pressure.
Third, it is clear that various aspects of the medical notes did not record all relevant observations that were made of the plaintiff, nor all conversations that were had with the plaintiff. For example, the MEWs records contain a space for recording a patient’s report of pain. None of these were filled in for the duration of the plaintiff’s first admission, although the clinical notes make reference to the plaintiff complaining of pain at various times during her first admission (in particular, at 10:10am on 1 August 2019, when she complained of 6 out of 10 pain). As these records demonstrate, whilst there is no basis to doubt the accuracy of positive statements in the clinical notes, care must be taken before drawing any inferences from the absence of matters in the clinical notes.
Accordingly, as will be discussed further below, where the plaintiff’s evidence is inconsistent with a positive recording in the medical notes, I have preferred the account that is contained in the notes. However, I have proceeded more cautiously where the defendant has invited me to draw an inference from the absence of a recording in the notes.
As described above, the plaintiff’s sister gave evidence that the plaintiff was pale and holding onto her stomach as though she was in pain when the plaintiff walked to her car following her discharge. The plaintiff’s sister did not embellish her evidence. For example, she candidly stated that the plaintiff was not holding her stomach when the plaintiff was examined by Dr Bodulkar.
Taking into account all of the evidence, I find that the plaintiff was in pain, but not severe pain, at the time of her discharge.
However, when asked whether he had told the plaintiff that rupture could result in death and the loss of the plaintiff’s fallopian tube, Dr Menakaya responded: No, no, no. I don’t – what I said to her is that we had to know the pregnancy was no location and that could be eventually an ectopic pregnancy. Right? Now, you’d – I note that they weren’t ectopic. That’s the point. I am not dealing with an ectopic right there. So why would I then going into the details of an ectopic pregnancy when the patient is not presenting to me. It’s like telling me to talk to your patient about cancer when he’s come in with a foot pain.
Taking into account all of the evidence outlined above, I find that Dr Menakaya told the plaintiff that an ectopic pregnancy was a possible diagnosis. This is consistent with the plaintiff’s evidence that she was told that she would not be able to eat or drink in case surgery was required. However, noting that Dr Menakaya acknowledged that he told the plaintiff that a “likely” explanation for her pain was the corpus luteus, and in view of the absence of any notations in the clinical notes, I also find that the discussion of ectopic pregnancy was not a focus of that consultation and that Dr Menakaya did not discuss the likelihood of an ectopic pregnancy or the risks of an ectopic pregnancy during his consultation with the plaintiff at 8:30pm on 31 July 2019.
I find that the information that was provided to the plaintiff on her discharge was limited to that which is set out in the above paragraph. I find that Dr Bodulkar did not provide the plaintiff with any advice about her heightened risk of an ectopic pregnancy, or why it was important for the plaintiff to return to hospital if she experienced an increase in pain or bleeding. Specifically, I find that Dr Bodulkar did not warn the plaintiff that, by reason of her history and her symptoms, she remained at a real risk of an ectopic pregnancy, or that the condition, if untreated, could be fatal. I also find that Dr Bodulkar did not warn the plaintiff that any increase in pain or bleeding could be an early indication that her ectopic pregnancy was rupturing, and that it was essential that she immediately return to hospital in the event of any increase in pain or bleeding.
In reaching the findings of fact contained in the above paragraph, I have taken into account the following matters: (a) The discussion recorded in the clinical notes is limited to a notation that “red flags” were discussed with the plaintiff; (b) Dr Bodulkar’s evidence was that a conversation occurred in the brief terms described above; (c) The plaintiff was adamant that it was not explained to her that there remained a real likelihood that she had an ectopic pregnancy; and (d) The plaintiff’s sister did not recall there being any discussion on discharge other than as to the availability of home support or counselling.
I have given particular weight to the evidence of the plaintiff’s sister in reaching this finding. Advice that the plaintiff had a real ongoing risk of an ectopic pregnancy; that that condition could be fatal; and that it was essential that the plaintiff return to hospital in the event of any increase in pain or bleeding, would have been a salient matter which would have been considerably more memorable than an offer of counselling and/or home support. In particular, information concerning an ongoing risk of an ectopic pregnancy, and the need to return to hospital in the event of increased pain and/or bleeding would have been important to the plaintiff’s sister, who had attended to assist the plaintiff and to bring her home from hospital, and who cared for the plaintiff until the plaintiff’s then husband returned. The plaintiff’s sister’s evidence that the only matters she recalled being discussed were the offer of home care and counselling is cogent evidence that the tenor of the advice provided by Dr Bodulkar was that the plaintiff’s loss of her pregnancy was emotionally distressing, but that the plaintiff did not have any real risk of a potentially fatal ectopic pregnancy.
I also accept that “merely because the people involved have fallen out”, it does not follow that “one would not be expected to call the other”: Ling at [32]. However, in the present case, the relationship between the plaintiff and her former husband deteriorated in the aftermath of the events in question, at least in part because the plaintiff resented her former husband for not being present and able to advocate on her behalf whilst she was in hospital to 31 July 2019 to 1 August 2019. In view the ongoing emotional dimension of these events for the plaintiff, I do not consider that it is “expected or natural” for the plaintiff to have called her now former partner to give evidence. Accordingly, I decline to draw the inference sought by the defendant.
Associate Professor Izzo did not squarely address these risks in his evidence, nor did he explain why it was appropriate to proceed with surgery despite these risks.
As outlined above, there is no equivalent of s 5O of the Civil Liability Act in this jurisdiction. Accordingly, the fact that peer professionals such as Dr Lamaro and Professor Hyett considered that expectant management of a patient in the plaintiff’s position accords with competent professional practice in Australia is not determinative of the defendant’s liability. However, their professional opinions remain relevant to the Court’s determination of whether there has been a breach of the duty of care.
The reasons provided by Dr Lamaro and Professor Hyett as to why a laparoscopy and salpingostomy should not have been performed at any time during the plaintiff’s first admission are cogent and compelling. Accordingly, although I accept that the risk posed by the plaintiff’s ectopic pregnancy was foreseeable (s 43(1)(a) of the Wrongs Act), and that the risk was not insignificant (s 43(1)(b) of the Wrongs Act), I do not accept that a reasonable person in the defendant’s position would have performed a laparoscopy (s 43(1)(c) of the Wrongs Act). It follows that I am not satisfied that the plaintiff has established that the defendant breached its duty of care by failing to perform a laparoscopy on her first admission.
The plaintiff’s alternative claim was in two further alternative parts: (a) First, that if the plaintiff had been in hospital when her pain increased at 7:00pm, she would have undergone a laparoscopy, which would likely have been followed by a successful salpingostomy, such that her left fallopian tube would have been saved; or (b) Second, that even if it has not been established that her fallopian tube would have been saved (either because it would not have been appropriate to undertake a salpingostomy at 7pm or if that procedure was unlikely to have been successful), she would not have sustained psychological harm if she had not been discharged because a salpingectomy would have been performed during the evening of 1 August 2019, rather than in the emergency situation that unfolded on 2 August 2019.
However, it does not automatically follow that negligence has been established. The question that must be addressed is whether a reasonable person in the position of Dr Menakaya and/or Dr Bodulkar would have discharged the plaintiff.
There was no dispute that an ectopic pregnancy may be dangerous to a pregnant woman. If the ectopic pregnancy ruptures, the condition may be fatal. The plaintiff had a 10% to 15% risk of ectopic pregnancy by reason of her previous history of an ectopic pregnancy. The risk of both physical and psychological harm if the plaintiff had an ectopic pregnancy which later ruptured whilst the plaintiff she was at home and not under medical care was both foreseeable and not insignificant (ss 43(1)(a) and (b) of the Wrongs Act). I did not understand the defendant to submit otherwise.
The question which is at the heart of the issue of breach in this case concerns whether a reasonable person in the defendant’s position would have declined to discharge the plaintiff in order to protect against these risks.
As noted above, s 42 of the Wrongs Act provides that when deciding whether a defendant was negligent, the standard of care required of the defendant is that of a “reasonable person in the defendant’s position who was in possession of all the information that the defendant either had, or ought reasonably to have had, at the time of the incident out of which the harm arose” (emphasis added).
The information that ought to have been known about the plaintiff at the time of discharge was as follows: (a) The plaintiff had a previous history of an ectopic pregnancy, which had resulted in the removal of her right fallopian tube; (b) The plaintiff had consistently complained of pain in the left quadrant of her abdomen (although there is one entry from an unidentified author describing pain in right iliac fossa, that entry is immediately preceded by a description of pain in the left quadrant); (c) There was no visible ectopic pregnancy on the ultrasound; (d) There was no visible pregnancy in the plaintiff’s uterus visible on the ultrasound; (e) There was a visible corpus luteum on the plaintiff’s left ovary seen on the ultrasound, which was a possible explanation for the pain which the plaintiff was experiencing; (f) The plaintiff’s hCG levels had reduced from 2738 on 31 July 2019 to 2071 on 1 August 2019; (g) The plaintiff had been admitted into hospital and observed overnight. Her clinical observations had remained stable, despite the plaintiff only having been administered with relatively low doses of painkillers (Fentanyl and Panadol) during that time, with the last administration of Fentanyl occurring at 11:10pm on 1 August 2019; (h) Other than “minimal tenderness” at 8:30pm on 31 July 2019, the plaintiff did not display pain in response to palpation of her abdomen at any time during the course of her admission; (i) The plaintiff complained of increasing pain leading to her presentation at hospital on the morning of 31 July 2019; increasing pain over the afternoon/ evening of 31 July 2019 (as demonstrated by the increased doses of painkillers), lessening pain overnight, and then increasing pain again, to 6 out of 10, followed by a reduction of pain in response to the administration of Panadol on 1 August 2019; (j) The plaintiff remained in pain at the time of discharge. This pain was not severe, but it was more than discomfort; and (k) The plaintiff lived less than 15 minutes’ drive from the hospital.
As noted above, the experts expressed differing views as to whether it was reasonable for the plaintiff to be discharged on the information that ought to have been known at the time of discharge.
Associate Professor Izzo maintained that discharge was not appropriate. However, this opinion was inextricably connected to his conclusion that a laparoscopy was the only appropriate course. I have rejected that opinion for the reasons outlined above.
In contrast, both Dr Lamaro and Professor Hyett expressed the opinion in their reports that it was “reasonable” to discharge the plaintiff home. However, Dr Lamaro’s opinion was predicated on an understanding that the plaintiff was in “no pain” at the time of discharge, and Professor Hyett’s opinion that discharge was reasonable was predicated on the understanding that her “symptoms [had] settled”. As outlined above, I have not accepted that the plaintiff was in no pain. Her symptoms had not settled.
In his report, Professor Hyett went on to address whether his opinion would alter if the plaintiff had had continuing pain at the time of discharge, and where that pain was being managed by pain medication. As noted above, Professor Hyett considered that “significant ongoing pain” would need to be factored into the risk assessment concerning the relative merits and disadvantages of admission or outpatient treatment and continued: A significant level of pain would make it less likely that the clinical situation was completely stable, increasing the potential for risk of rupture in an outpatient environment. The balance of risk may therefore favour admission…
As also noted at [117․] above, Dr Lamaro was asked in oral examination what he would do if he had been told that the patient had 6 out of 10 pain prior to discharge. He responded: I think what I would be doing if a patient had 6 out of 10 pain I would reassess them and I’d examine them. Now, if I found them to have a soft non-tender abdomen, and they only had paracetamol for that day I’d talk to them about what they wanted to do. And we do this all the time. And some patients will say ‘Look, I’d like to go home, I know where to come back to and I’ll come back immediately. I’ve got support’, and others would say ‘Can I stay here another day?’ And I think either are appropriate.
Dr Lamaro confirmed that the patient should be given a choice about whether to remain in hospital: …. We would talk to her about the three possible – possible diagnoses which she’d had discussed with her and determined – and I think they made comment that she had good home support and they – everything was in place for review as we would do with an ectopic, but if the patient wanted to stay or if I felt she needed to, I would – I would keep her.
Professor Hyett likewise emphasised the need for shared decision making between the Hospital and the patient. In his report, he emphasised that when a patient in the plaintiff’s position is discharged home, “they are assessed to ensure that they understand the potential for a future diagnosis of ectopic pregnancy and the small risk of rupture which will need to be managed promptly. They need to be able to recognise any change in symptoms and return to the hospital in a timely fashion”.
In short, both Dr Lamaro and Professor Hyett agreed that the appropriate course upon being informed that the plaintiff had recently complained of an increase of pain to 6 out of 10 would have been for the consultant to examine the plaintiff for himself, and that if there was ongoing pain, the plaintiff should only be discharged if the plaintiff, after provision of full advice about the potential risk of an ectopic pregnancy, chose to go home, understanding the need to return to hospital immediately if her pain or bleeding increased.
The opinions of Dr Lamaro and Professor Hyett are consistent with the tenor of the NICE and RCOG guidelines. These protocols state that expectant management is not appropriate for a patient who has been diagnosed with an ectopic pregnancy unless the patient is “pain free” (NICE Guidelines) or “clinically stable” (RCOG Guidelines).
The NICE and RCOG guidelines did not strictly apply, because the plaintiff had not received a definitive diagnosis of an ectopic pregnancy (as noted above, ongoing miscarriage remained a possible diagnosis, which also explained the plaintiff’s symptoms). However, where the plaintiff remained in pain, and that pain had sharply increased during the morning, before then reducing somewhat with the administration of Panadol, the plaintiff’s then current hCG levels assumed more significance. The plaintiff’s blood tests had indicated that whilst the plaintiff’s hCG levels had reduced significantly, from 2738 on 31 July 2019 to 2071 on 1 August 2019, they still remained above the level which NICE and RCOG guidelines prescribed as acceptable for expectant management if an ectopic pregnancy were confirmed. A material increase in the plaintiff’s reported pain therefore warranted further investigation, and a cautious approach to the question of discharge.
In determining the question of the scope of the duty, and whether the duty has been breached, the defendant relies on s 110 of the Wrongs Act (extracted at [273․] above), which sets out principles which must be taken into account when deciding whether a “public or other authority” has, or has breached, a duty of care.
As discussed at [276․] – [279․] above, there is a strong argument that the Hospital was not a “public or other authority” to which s 110 applied at the relevant time. However, it is unnecessary to resolve that question in the present case, because the particular contentions made by the defendant in reliance on s 110 should not be accepted, regardless of whether s 110 applies.
The defendant made two submissions in reliance on s 110. The first was that “[a] hospital cannot, as a practical matter, retain every patient as an inpatient until their medical condition has favourably or fully resolved without any risk of harm”. The second was that “[a] hospital is entitled to discharge a patient with a medical condition which has not favourably or fully resolved, following clinical review, with advice to seek medical review or return in the event of any concern or deterioration”.
Both propositions are too widely stated and are, for that reason, apt to mislead. The question in the present case is not whether a hospital is required to retain every patient regardless of their medical condition where the patient’s medical condition has not favourably resolved. The question is whether it was reasonable for a hospital to discharge the particular patient (that is, the plaintiff) with her particular medical condition, and the particular risks that were attendant on that condition.
In the present case, there was no evidence adduced by the defendant that there was any resourcing, financial or other impediment to retaining the plaintiff at the time that she was discharged. There was no evidence that there was a shortage of beds available at the time in question. On the contrary, Dr Menakaya said that it is “unlikely” that he would have discharged the plaintiff if he had been aware that she was suffering 6 out of 10 pain at 10:10am that morning. Accordingly, even if the defendant was an entity to which s 110 applies, that provision does not support its submissions in the present case. See similarly AB v Australian Capital Territory [2018] ACTSC 16 at [4].
The assessment of whether there has been a breach of the hospital’s duty of care must, in these circumstances, be assessed by reference to s 43 of the Wrongs Act. Section 43(2) of the Wrongs Act relevantly provides that when deciding whether a reasonable person would have taken precautions against a risk of harm, the Court must consider: (a) The probability that the harm would happen if precautions were not taken; (b) The likely seriousness of the harm; (c) The burden of taking precautions to avoid the risk of harm; and (d) The social utility of the activity creating the risk of harm.
When considering the question of breach, it is necessary to bear in mind that the plaintiff’s alternative case was not limited to an allegation that she should not have been discharged. The plaintiff also alleged that the defendant breached its duty by not “appropriately advising [her] in relation to her condition and in particular any steps that ought to be undertaken due to the lack of an intrauterine pregnancy” (see above at [292]). That is, consistently with the evidence of Dr Lamaro and Professor Hyett, the plaintiff contended that, given her high risk of an ectopic pregnancy, she should not have been discharged without discussion of the option of remaining in hospital for ongoing observation until her pain resolved or stabilised, and without being adequately advised that an ectopic pregnancy remained a likely cause of her symptoms, and the need to return to hospital immediately in the event of any increase in pain and/or bleeding.
So framed, the first three of the s 43(2) considerations weigh in favour of a finding of breach: (a) The “probability that harm would happen” (s 43(2)(a)) if the plaintiff was discharged without adequate advice was significant. As noted above, the experts agreed that the plaintiff had a 10% to 15% chance of an ectopic pregnancy based on her history. Her symptom of contralateral pain, which had not resolved, was consistent with an ectopic pregnancy, and a diagnosis of an ectopic pregnancy had (properly) not been excluded at the time of discharge. (b) The “likely seriousness of the harm” (s 43(2)(b)) was, as noted above, also significant. A rupture of the ectopic pregnancy carried a risk of serious harm (both psychological and physical) or death. (c) Whilst it may be accepted that a hospital’s resources are not infinite, the burden of providing appropriate advice to a patient when being discharged despite the possibility of an ongoing serious condition is not heavy, and providing a patient such as the plaintiff with the option of remaining in hospital for an additional period of observation was not, in the circumstances of the present case, overly onerous (s 43(2)(c)).
As to s 43(2)(d), the provision of medical services to patients with serious health conditions is an activity of high social utility (s 43(2)(d)). This matter is neutral when assessed against the breach that is alleged in the present case.
Taking into account each of the s 43 matters, I find that the Hospital had a duty of care not to discharge the plaintiff without discussing whether she wished to remain for observation and pain management, and without providing her with appropriate information concerning the likelihood of an ectopic pregnancy, the significance of increased pain and bleeding in that connection, and the need to return to hospital immediately in the event of an increase in pain and/or bleeding.
This information was important. It must be accepted that the plaintiff was generally aware of the possibility that she was suffering from an ectopic pregnancy, and the possible risk to her life and her health in the event of rupture (indeed, the plaintiff’s alternative case is predicated on the plaintiff having that knowledge). However, the plaintiff’s previous ectopic pregnancy had occurred in November 2015, nearly four years before, on 1 August 2019.
By reason of her history and her symptoms (which included ongoing contralateral pain), the plaintiff had a relatively high risk of an ectopic pregnancy. An ectopic pregnancy had not been ruled out. The plaintiff had earlier been told by Dr Menakaya that her pain was most likely caused by the cyst in her left ovary. This would have desensitised her to the significance of pain as a warning sign of an ectopic pregnancy. In these circumstances, she needed to be told that an ectopic pregnancy remained very much ‘on the cards’, and that she it was critical that she was alert to any increase in pain or bleeding, as those symptoms would heighten the likelihood of an ectopic pregnancy, which would place her in grave danger if medical action was not promptly taken.
The plaintiff was not given an opportunity to remain in the hospital. She was informed that she was being discharged, and was simply told to return to the hospital if her pain or bleeding increased, or if she passed out. As outlined above, she was not provided with information of her ongoing risk of an ectopic pregnancy, or the significance of symptoms such as increased pain as indicating that she may be suffering from an ectopic pregnancy rather than an ongoing miscarriage.
Accordingly, I am satisfied on the balance of probabilities that the defendant breached the duty of care which it owed to the plaintiff by not discussing whether she wished to remain for observation and pain management, and without providing her with appropriate information concerning the likelihood of an ectopic pregnancy, the significance of increased pain and bleeding in that connection, and the need to return to hospital immediately in the event of an increase in pain and/or bleeding.
In these circumstances, causation can only be established if I am satisfied that the plaintiff would not have agreed to be discharged if she had been adequately informed of these matters, or that, having been so advised, the plaintiff would have immediately returned to hospital when her pain started to increase at 7:00pm on 1 August 2019.
I am satisfied that the plaintiff would not have agreed to be discharged if the option of staying in hospital for further observations had been offered. The plaintiff remained in significant, albeit not severe, pain at the time of her discharge. I accept the evidence of both the plaintiff and her sister that they were both concerned about the plaintiff’s ability to manage her pain at home. There was not a pressing need for the plaintiff to return home. The plaintiff’s daughter was being looked after by her parents, and her then husband had been recalled from his deployment. I accept that the plaintiff would not have agreed to be discharged if she had been offered the opportunity to remain in hospital for further observation and management of her pain, and if she had been provided with adequate information concerning her ongoing risk of an ectopic pregnancy.
In the alternative, I am satisfied that even if the plaintiff had agreed to be discharged, if she had been provided with adequate advice, she would have returned to Hospital when her pain increased at 7:00pm. The plaintiff explained that the reason she did not return to hospital when her pain increased at 7:00pm on 1 August 2019 was because she decided to “persevere” with the pain. This decision, which may seem irrational in hindsight, can only be understood in the context of the plaintiff’s experiences over the previous 24 hours and in the context of the advice that she had been given. The plaintiff’s reports of increased pain, including a reported increase to 6 out of 10 pain that morning, had been responded to by the administration of painkillers. As noted above, the plaintiff had been previously told that her pain was likely caused by the cyst in her left ovary. This, combined with the lack of proper advice about the likelihood that she was suffering from an ongoing ectopic pregnancy, had the result that the plaintiff did not appreciate the danger that she was in when her pain increased at 7:00pm on 1 August 2019.
In this respect, it is also important to note that the plaintiff had not engaged in any irrational conduct in connection with her condition prior to this time. She had appropriately presented to hospital the previous day with a concern that she may have been suffering from an ectopic pregnancy. As discussed further below, the plaintiff’s failure to return to hospital at 2:00am may be seen as irrational, but this irrational behaviour should be understood as occurring in the context of the extreme pain and fear that she was in at that time. It does not support an inference that the plaintiff would have behaved irrationally at 7:00pm if she had been provided with appropriate advice in connection with her condition.
The second causation issue, which is related to the above, concerns the connection between the plaintiff’s psychiatric injury and her discharge. The plaintiff submits that she would not have suffered a psychiatric injury if she had remained in hospital at the time that her pain levels increased. The defendant submitted that the plaintiff would have suffered psychiatric injury in any event, even if she had remained in hospital when her pain started to increase.
In her report, Dr Skinner suggested that the plaintiff’s decision to wait several hours before returning to hospital after the onset of severe pain may have been a “psychological avoidance mechanism” in relation to her fear of surgery and speculated that this mechanism might have functioned even if the plaintiff had remained in hospital, for example, by not calling for the night staff.
I disagree. Whilst the plaintiff was in hospital over 31 July 2019 to 1 August 2019, she regularly notified staff when her pain levels increased. There is no reason to infer that she would not have done likewise if she had remained in hospital on the evening of 1 August 2019. Further, from 7:00pm, the plaintiff had objective signs of pain, such as sweating. From 2:00am, she was vomiting. Those objective pain symptoms would have been observed by hospital staff (as Dr Lamaro testified “that’s what we’re there to watch”), and would have been medically addressed, both by the administration of pain relief and ultimately by the performance of an ultrasound and laparoscopy.
As described above, both Dr Allnutt and Dr Ventura agreed that the plaintiff suffered from a trauma related psychiatric condition arising from the events of 1 August 2019. Importantly, both agreed that, had the plaintiff remained in hospital at 7:00pm on 1 August 2019, and assuming an urgent laparoscopy was carried out in “controlled circumstances” where the plaintiff did not fear for her life, it is likely that she would not have sustained a trauma related condition. I accept their evidence.
In so finding, I have accepted that there may still have been delays in surgery being performed on the plaintiff if she had not been discharged, and had instead remained in hospital at 7:00pm on 1 August 2019. For example, there may have been delays in obtaining the ultrasound and/or in arranging for surgery to occur overnight. I accept that it is likely that the plaintiff would have suffered a degree of anxiety and distress during the time when she was awaiting surgery. However, as Dr Allnutt and Dr Ventura explained, it was the experience of uncontrolled pain which was foundational to the trauma response which the plaintiff suffered. If the plaintiff had been in hospital, her pain levels would have been monitored by hospital staff and alleviated by the administration of pain killers such as Fentanyl. I am satisfied on the balance of probabilities that the plaintiff would not have suffered from a trauma related psychiatric condition if this had occurred. This is not a case where the plaintiff has simply lost a chance of a better outcome; cf Tabet v Gett [2010] HCA 12; 240 CLR 537.
Finally, as the defendant submitted, any psychological injury which the plaintiff would have suffered in any event, due to the loss of her pregnancy, the loss of her fallopian tube, and the stress of surgery, must be disentangled from the damage that was sustained as a result of the defendant’s negligence. I accept that the plaintiff would have suffered some grief from the loss of the pregnancy, her fallopian tube and her natural fertility. However, I do not find that this grief would have amounted to a psychiatric illness. The plaintiff had previously suffered miscarriage and an ectopic pregnancy without that response.
It follows that the defendant’s negligence made a “material contribution” to the harm sustained by the plaintiff and the requirement for “factual causation” under s 45(1)(a) of the Wrongs Act has been demonstrated.
The remaining causation issue concerns the second limb under s 45(1)(b) of the Wrongs Act, namely, whether it is appropriate for the “scope of [the defendant’s] liability to extend to the harm so caused”. As outlined above, this is a “normative question”, which requires the making of an evaluative judgment as to whether liability should be imposed.
The defendant submitted that its scope of liability should not extent to the harm caused to the plaintiff for two reasons. The defendant’s first submission was an echo of its submissions in respect of the alleged breach of the defendant’s duty of care. Specifically, the defendant again noted that it is not possible for a hospital to keep everyone whose condition has not resolved, and pointed out that it will always be foreseeable that a person may suffer both physical and psychological harm if their condition deteriorates after discharge. For these reasons, the defendant submitted that causation should be limited under s 45(1)(b) of the Wrongs Act, so as to guard against the possibility of unlimited liability.
The defendant’s second submission concerned the failure of the plaintiff to return to hospital when her pain increased at 7:00pm, and then significantly increased again at 2:00am. The defendant noted that the plaintiff acknowledged that she had understood that she was to re-present to hospital if her pain increased. The defendant submitted that it should not be held liable for damages where the plaintiff could have avoided the injury sustained if she had followed Dr Bodulkar’s advice.
Again, when assessing these questions it is necessary to bear in mind that the breach that I have found was in the discharge of the plaintiff without giving her an opportunity to remain in hospital for observation and pain management, and without adequately informing the plaintiff of her heightened risk of an ectopic pregnancy, and the significance of an increase in pain in connection with that condition. This finding of breach does not have a consequence of imposing unlimited liability on hospitals and other health care providers.
Further, seen in this light, it is also clear that the plaintiff’s failure to return to hospital following the increase in her pain at 7:00pm does not break the chain of causation, either in a factual, or in a normative sense. The failure of the Hospital to involve the plaintiff in the discharge decision and to explain to the plaintiff her ongoing risk of an ectopic pregnancy and the significance of pain in that connection was operative at the time that the plaintiff determined not to return to hospital at 7:00pm. The plaintiff did not return to hospital at 7:00pm because she had not been provided with adequate advice about the severity of her condition. Further, as explained below, at 2:00am, the plaintiff’s pain levels were such that she was not able to engage in rational decision-making.
In these circumstances, I am satisfied on the balance of probabilities that the plaintiff has established causation under both s 45(1)(a) and 45(1)(b) of the Wrongs Act. Contributory negligence
As noted at [298․] above, in its Further Amended Defence, the defendant relied on contributory negligence, particularised as follows: (a) Failing to advise Hospital personnel of various specified matters concerning her pain levels and her concerns on discharge; (b) Disregarding medical advice to re-present to the Hospital Emergency Department if there was any increase in pain or if she had any concerns, because she wanted to “try and manage it at home” on 1 August 2019; (c) Failing to contact the Hospital, call an ambulance or re-present to the Hospital after 7:00pm on 1 August 2019 when she alleges she experienced an increase in pain; (d) Failing to contact the Hospital for advice/ support, to call an ambulance, to ask her husband or family members to transport her or to re-present to the hospital after 2:00am on 2 August 2019 when she says she started experiencing severe pain including sharp shooting pains up her arm and into her shoulder tip, or thereafter; (e) Failing to contact the Hospital for advice/ support, call an ambulance, ask her husband or family members to transport her or re-present to the hospital at any time prior to 6:38am on 2 August 2019.
Paragraph (a) was not referred to in the defendant’s closing submissions. I understand that the allegation contained in that paragraph was made in the event that the plaintiff was in severe pain at the time of discharge. I have not so found. The plaintiff answered all of the questions that were asked by her, which included advising medical staff that her pain had reduced (the clear implication being that she remained in pain). She also expressed her concern about being at home if an ectopic pregnancy ruptured. She was not required to do more.
As to paragraphs (b), (c) and (e), on first consideration, it may appear that the plaintiff should be found guilty of contributory negligence for failing to re-present to the Hospital. The plaintiff agreed that she was told that she should re-present to the Hospital if her pain increased. Whilst the plaintiff did not consider that she could have driven herself to hospital, the plaintiff accepted that she could have called her sister, her parents or an ambulance. The plaintiff accepted that it was “likely” that she turned her mind to the prospect of returning to the Hospital at this time. The plaintiff did not return to the Hospital, and instead took some paracetamol and “just laid on [her] side to just try and deal with it”.
However, the plaintiff’s acts must be viewed in the context of the whole of the advice that she was given. As outlined above, the plaintiff was discharged despite having complained of 6 out of 10 pain earlier that day, and where she remained in pain at the time of discharge. The defendant failed to adequately inform the plaintiff of her ongoing risk of an ectopic pregnancy, and the significance of an increase in pain in connection with that condition. The advice given to the plaintiff to return to hospital in the event of an increase in pain was undermined by the inadequate advice that was provided to the plaintiff, in particular, the failure to explain to her that she remained at high risk of an ectopic pregnancy, and the failure to explain to her why it was important that she return to hospital in the event of any increase in pain. In these circumstances, the defendant has not established that the plaintiff suffered damage “partly because of [her] failure to take reasonable care” (s 102(1) of the Wrongs Act).
This position is even clearer with respect to the plaintiff’s failure to return to hospital at 2:00am on 2 August 2019. In her further cross-examination, the plaintiff provided the following explanation of her thought processes at 2:00am: So I was preparing myself and I think I mentioned in the – in the last evidence that – and correct me if I'm wrong I'm just – I'm trying to think out loud here, that I think it was – I was digesting what was happening and I was, in essence, you know, waiting for a reasonable time to call someone to – to come and look after my child so I could go to the hospital.
The following exchange then followed Morris SC: So did you think of – you must have thought of waking your husband and asking him to take you to the hospital? Plaintiff: I did, but I – I like to caveat with the fact that there was a – I’ve never felt so much fear. And I can't tell you what was going on in my head, apart from not being a burden on whoever had to take me to the hospital. So in my view, what happened was I was worried about waking up my parents to come and look after my child, so then waking up my husband to then - my ex husband to then take me to the hospital. I just wasn't clearly and – and I – I have never felt so much adrenaline run – run through my body and I can’t tell you if this was a 10-minute period of where I was – what I was thinking or if this was over two hours. It was just – I had to – I just felt I was having an out of body experience. Morris SC: I understand you were fearful, all right? I understand you were fearful and I'm not challenging the suggestion that you were in pain and you were concerned, right? I accept that. But you made a decision not to wake your husband, correct? Plaintiff: I – yes. Morris SC: You made a decision not to ring the ambulance, right? Plaintiff: Yes. Morris SC: You made a decision – and I'm – I understand there were all sort of issue of whether your father – your mum and dad or your sister might have answered the phone had you called them. But these were all options that you thought about and decided not to take it because you didn't want to interrupt anybody; is that right? Plaintiff: Absolutely, and from rational thought, you know, sitting here today, if this was happening immediately, of course I would call an ambulance. That’s, you know, that’s – I'm a grown up. That's, you know – it's irresponsible to think otherwise, but in that moment, I don't know what was going through my brain.
In short, the plaintiff’s experience of pain at 2:00am was of such a severity as to interfere with her capacity to engage in rational decision-making. This inability to engage in rational decision-making was itself directly caused by the defendant’s negligence. In these circumstances, I do not accept that the plaintiff’s failure to return to hospital at 2:00am amounted to take a failure to take reasonable care.
Accordingly, I find that the defendant has not established that the plaintiff is guilty of contributory negligence.
I accept that the plaintiff should be compensated for her increasing pain from around 6:00pm or 7:00pm on 1 August 2019, although I note that the plaintiff was able to doze, albeit fitfully from this time until 2:00am. I also accept that the plaintiff should be compensated for the severe pain which she suffered from 2:00am until she was administered pain medication (Fentanyl) at approximately 8:00am in the Hospital on 2 August 2019. Noting that the plaintiff gave no evidence as to her pain levels after 8:00am, I do not accept that the plaintiff is entitled to be compensated for any pain after the administration of that medication.
I have found that the plaintiff suffered from a psychiatric illness, characterised by depression, anxiety and post-traumatic symptoms as a result of the defendant’s negligence. The plaintiff should be compensated for this injury and its consequences (in particular, loss of sleep and nightmares).
As outlined above, Dr Allnutt and Dr Ventura differed in their opinions as to the plaintiff’s prognosis: Dr Allnutt initially considered the plaintiff’s prognosis to be poor, but on a further examination, considered her prognosis to be much improved, albeit that some symptoms remained. In contrast, Dr Ventura considered that the plaintiff was in remission.
I find that this difference can be explained by the passing of time between Dr Allnutt’s first examination of the plaintiff, Dr Ventura’s examination of the plaintiff and then Dr Allnutt’s second examination. As Dr Ventura explained in her report, it is likely that the plaintiff’s symptoms were more severe at the time that she was first examined by Dr Allnutt, and the plaintiff’s symptoms had then largely resolved by the time she was examined by Dr Ventura. I accept Dr Allnutt’s evidence that, at the time of his last examination, the plaintiff had “continued to manifest a number of symptoms” that he considered to be “of a post-traumatic nature”, which he believed “were in keeping with what one would expect, and residual symptoms”. However, I agree with Dr Ventura that it is likely that this simply represented a re-triggering of symptoms as a result of the stress of the court hearing, and the consequent need to dwell on, and to some extent, re-live the original trauma that was suffered.
I find that the plaintiff’s prognosis is good, and that her primary risk of relapse is in the event of further obstetric or gynaecological complications in the future. As the plaintiff is planning on undergoing IVF, I accept that there is a real prospect of a relapse of the plaintiff’s psychiatric illness in the future. With treatment, I consider that the plaintiff has a positive prognosis in the event of any such relapse.
I do not accept that the plaintiff should be compensated for “emotional harm from being aware that her remaining fallopian tube was rupturing, meaning she may never be able to have a natural birth again” (particular (d) above). This is harm which could only be compensable if I had accepted that a salpingostomy could have been successfully performed (either on the plaintiff’s first admission, or at or after 7pm, when the plaintiff’s pain increased).
The Amended Statement of Claim particularised the plaintiff’s marriage breakdown as being “due to [the plaintiff’s] failure to conceive”. However, in the written submissions, the breakdown was described as being caused by the failure of the plaintiff’s former husband to support her. I am not satisfied that the plaintiff has demonstrated the defendant’s negligence caused her marriage breakdown. Accordingly, I do not accept that compensation should be awarded with respect to this matter.
Under s 99 of the Wrongs Act, I may consider earlier decisions of this Court, or other courts, for the purpose of establishing the appropriate award for general damages. However, the parties were not able to identify any cases that are comparable to the present, nor have I identified any comparable decisions.
I will award the plaintiff $100,000 for general damages, of which 90% is attributed to past 10% is attributable to the future.