SOUTH WESTERN SYDNEY AREA HEALTH SERVICE v RITCHIE

Court of Appeal (NSW)|1998-10-16|Before: By Meagher JA, Priestley JA, Meagher JA

SOUTH WESTERN SYDNEY AREA HEALTH SERVICE v RITCHIE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, MEAGHER and STEIN JJA 16 October 1998, 13 November 1998

[1998] NSWCA 213 Negligence - Pt28 r9 District Court Rules.

Despite the erroneous ruling of the trial judge on evidence and the effect of these rulings being that the Hospital was deprived of the opportunity of presenting its case to the Court, the evidence which would have been adduced could have made no difference. This is because the evidence so adduced would have been limited to events which took place after the damage was done and the negligence complete.

Meagher JA This is an appeal from a decision of Naughton ADCJ who found Liverpool Hospital negligent in its treatment of Mrs Donna Leigh Ritchie. She, unfortunate lady, was a severe asthma sufferer.

Although only born in 1965, by 19 January 1994 she had had 30 or 40 hospital admissions for severe episodes of asthma. On that day she suffered another severe attack. In the morning, her husband drove her to Liverpool Hospital where she was given some medication but not admitted. That afternoon, her condition deteriorated. Her husband drove back to hospital to the Emergency Department where she was admitted at 6.22pm. She was described by the hospital as being "very bad". She suffered respiratory arrest. She was unconscious from 19 January to 25 January.

In hospital her condition deteriorated rapidly. At 7.30pm Dr Lightfoot was so alarmed he called in an emergency team from the nearby Intensive Care Unit. Then a decision was made to administer adrenaline intravenously as an urgent measure. His Honour, summarizing the known medical facts about the use of adrenaline, said:

"Adrenaline is sometimes used, usually as a last resort, in the treatment of critically ill asthma patients. It has some dangerous side effects and its use must be monitored vigilantly. One of its side effects is that it is corrosive. If, arising out of an intravenous infusion, it leaks into nearby body tissue it can kill that tissue and consequentially lead to death of the skin above ("necrosis"). This is well known medical fact and has been for a long time.

Ideally, if adrenaline is to be administered intravenously it should be by a "central" line. In practice this means by a line connected to a cannula, inserted in either the jugular or femoral vein. These are large veins which can more easily accommodate the cannula, lessen the risk of leakage and allow relatively fast transmission of the drug to the heart. A central line is the recognised technique for intravenous drug infusion for a prolonged time. A central line can be inserted into the neck, subclavian (below shoulder bone) area, or groin. However, it must be done in extremely sterile conditions (Intensive Care Unit rather than Emergency Department). Preparation and procedure to get started takes about 10 to 15 minutes. An alternative technique is by a "peripheral line" into some other smaller accessible vein. This is much quicker and is medically acceptable in an extreme emergency. The independent expert medical witnesses for the plaintiff and for the defendant both agreed that where an intravenous infusion of adrenaline is commenced by peripheral line it should be replaced by a central line infusion at the earliest opportunity."

The administration of the adrenaline probably saved Mrs Ritchie's life. It was administered through a "peripheral line" into the cubital fossa area on her left arm. She was then taken into the Intensive Care Unit about 2 hours later, at 8.35pm. Thereafter Dr Lightfoot had nothing to do with her.

Unfortunately things went awry. Mrs Ritchie ended up with a severely swollen and scarred left arm. That was caused by a leakage of the adrenaline onto her arm. Mrs Ritchie alleged that this was due to the hospital's negligence. The acts of negligence alleged were (a) inserting the cannula without ensuring that it could not be dislodged; (b) not splinting or otherwise restraining the arm, (c) not replacing the "peripheral line" with a "central line" at the earliest possible moment, and (d) leaving the peripheral cannula in place for six days. She and her husband both gave evidence; given the state of her recollection, she could say very little about what happened between 19 January and 25 January. Her husband, however, was with her most of the time and swore that the "Peripheral line" was in place nearly all the time, a "central line" never.

The defendant's case seems to have been that the "peripheral line" was in fact replaced by a "central line" at some stage, but we don't know when. Of all the doctors and nurses who must have been capable of saying what happened, only one person was called (Nurse Talbott). She, as it happens, was disbelieved; and on a true credibility basis, not because of any subtle inference. The defendant did call an expert, a Dr Lee from St Vincent's Hospital, but he had no knowledge of what happened other than what could be gained form the Hospital's records.

The plaintiff's case that the "peripheral line" should have been replaced by a "central line" within hours of its being inserted seems to have remained unanswered. We know that the "peripheral line" was, hardly surprisingly, in place when she was removed into Intensive Care at 8.35pm on 19 January. It would seem it was still there on the morning of the 20", when Professor Hillman wrote, after his morning rounds, "Forearm, extravasation of adrenaline". Counsel for the hospital at one stage made a concession: "She had a tube going into her left arm on the 22" your Honour" adding "it just wasn't a tube through which adrenaline was being delivered". Moreover, later in the trial, when counsel for the hospital was seeking an adjournment, the purpose of the adjournment, was said to be to discover what "lines" were being employed "after" (italics mine) the 20" January, thereby admitting the plaintiff s case that no "central line" had been. inserted by the end of 20" January 1994. The plaintiff's expert, Dr Kendall, had

URJSOUTH WESTERN SYDNEY AREA HEALTH SERVICE v RITCHIE (Meagher JA) 3

opined that a "central line" should have been in place long before that, a proposition with which the defendant's expert, Dr Lee, agreed.

By the end of the plaintiff's case, therefore, the plaintiff was in a position where her case was convincingly proved: the free leakage of adrenaline indicated an unstable insertion of the "peripheral line", and the "peripheral line" had not been replaced by a "central line" long after it was possible to do so. On the latter proposition, it is true that there was some documentary evidence in the hospital's records to the contrary effect, but it was both slight and suspect.

It was in this context that the defendant sought to adduce oral evidence from Professor Hillman and Dr Marion Lee (not the expert Dr Robert Lee). In each case, counsel for the plaintiff objected to the evidence, on the grounds that it constituted an attempt to contravene the provisions of Pt28 r9 of the District Court Rules. That rule provides, in effect, that a party may not call oral evidence of an expert nature unless he first supplies a written summary of that evidence. His Honour upheld the objection. Counsel for the defendant then sought to have both doctors give evidence of purely "factual" matters, ie matters of what they saw and did (and, possibly, heard); but his Honour, perhaps somewhat tersely, ruled that this too would constitute a violation of r9. In this ruling his Honour was undoubtedly wrong. Doctors in the position of Professor Hillman and Dr Lee can give evidence of two types: a) their opinions as to what should or should not be done - this is true expert evidence, or (b) their reports of what they saw happening

this has nothing to do with expert evidence. Pt28 r9 of the District Court rules applied only to the former. This is made clear enough by the definition of "Expert's Report":

"Expert's Report" means a statement by an expert in writing which sets out the expert's opinion and the facts on which the opinion is formed and which contains the substance of the expert's evidence which the party serving the statement intends to produce in evidence in chief at the trial;"

Having taken this stance, his Honour was then requested to grant an adjournment. Why? So that "expert's reports" could be prepared for Professor Hillman and Dr Lee. One remarkable feature of the adjournment application was the disclosure that the Hospital's counsel really had no idea what the doctors would say if called. For example, in relation to Professor Hillman, he said:

"Your Honour in relation to Professor Hillman the significance of his absence in this case is not, in my submission, his inability now to give expert opinion evidence that he couldn't give without breaching the rule in Pt28 without the discretion being exercised, but his inability now to offer the court an explanation of why it was on the plaintiff's case that having seen the plaintiffs wound, as recorded in the notes on 20 January, he did not respond or alternatively if he did respond what he did or alternatively if at the time he saw no cannula in the cubital fossa. That evidence is simply not available now to the defendant to call. So that is not a matter, in my submission, which was at all relevant in these proceedings until yesterday morning. And in my submission if s also the only relevance that Professor Hillman could have had in that matter subsequently. As I say I don't cavil with your Honour's decision but in terms of the defendant's case that was where, in my submission, Professor Hillman's evidence fitted."

It would surely have been desirable to tender a written report of what he would say, have it rejected and then marked for identification. In that way an appellate court would not have been in a position of having to guess at the contents of uncalled evidence.

Even more mysterious was the same counsel's submission as to Dr Marion Lee. It was as follows:

"Similarly there is now not available to the defendant the possibility of calling Dr Lee, Dr Marion Lee, who was another treating doctor and the benefit of her observations in relation to whether or not there was a cannula after the 20" because of course Dr Lee is a doctor working in the ICU section of the hospital and simply has nothing to say about the events of the 19" because that occurs in a separate department of the hospital."

"More mysterious" because there is, in the Appeal Book, a statement by Dr Lee which says she was working in the Emergency Ward at the time, and did not see Mrs Ritchie after Mrs Ritchie had been moved to Intensive Care.

Despite the erroneous rulings of the trial judge on evidence and despite the effect of these rulings being that the Hospital was deprived of the opportunity of presenting its case to the Court (see Cameron v Baker Court of Appeal, 6 August 1980, unreported), in my view the appeal should not be upheld. That is, because the evidence (whatever it was)

could have made no difference. Counsel made it clear it was limited to events which took place after 20 January, and by that time the damage was done, and the negligence found by his Honour completed.

For these reasons, I would dismiss the appeal with costs.

Solicitors for the respondent: I & R Brydens Law Office

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