Stefanyszyn v Brown; Brown v Newcastle Private Hospital Pty Limited t/as Newcastle Private Hospital

Dr Brown

1. By his cross-claim, Dr Brown pleaded that the Hospital knew or ought to have known various matters including, in short, that: 1. A medical practitioner such as he may reasonably rely on its nurses to alert the practitioner to a deterioration on a patient's condition and to record the patient's vital signs (14); 2. The nursing staff had a duty to record vital signs (15) and to advise such a medical practitioner of a deterioration in the patient's health (16); 3. The nursing services provided by the Hospital included taking and recording post-operative observations (17) and if not taken and regularly recorded, there would be no records of vital signs (18) with the result that there was no method by which nursing staff and other clinicians could assess a deviation from a patient's expected path of recovery (19); 4. The Hospital promulgated charts for recording post-operative observations, including the four hourly graphic chart and clinical pathway documents and a fluid balance chart and knew that deviations from the expected recovery path could be potentially life threatening (21); and that completion of those records by nursing staff was mandatory (23 and 47), or a matter of standard practice (25 and 49); and 5. The Hospital also knew that blood oximetry levels should have been taken regularly to ensure that Mrs Stefanyszyn had adequate blood oxygenation and that without such levels being taken, that she might have an underlying deteriorating vascular condition which was not being treated, with the result that she was at risk of death (57 and 58)
2. Dr Brown alleged, amongst other things, that in breach of the duty which the Hospital owed Mrs Stefanyszyn and her family, it did not ensure that: 1. The post-operative observations, including the four hourly graphic chart and clinical pathway documents and fluid charts were completed; 2. Post-operative observations were recorded at specified times; and 3. There was no clinical pathway document on 6 December.
3. Dr Brown also claimed that the result was that nursing staff were unable to determine whether Mrs Stefanyszyn had deviated from the recovery pathway (33); that her condition had deteriorated, that she had become dehydrated and they could not determine whether she had an appropriate electrolytic balance (53). He was, as a result, also unable to properly assess her condition (56).
4. Steps which Dr Brown claimed ought to have been taken during Mrs Stefanyszyn's post-operative care were also identified. They included closer monitoring of Mrs Stefanyszyn's condition (79(a)); placing her on oxygen therapy (79(b)); notifications being given to medical staff (79(c)); commencement of cardiovascular workup (79(d)); taking, observing and analysing oxygen saturation levels and recording results (72 - 80); more immediate response when a level of 73 per cent blood oximetry level was detected, including immediate cardio vascular support (77).
5. Specific acts of negligence were also pleaded, which it is not necessary to detail. It was also pleaded that the Hospital's omissions in its care for Mrs Stefanyszyn caused or contributed to her death.

The Hospital

1. By its pleaded case the Hospital admitted providing its hospital facilities, nursing services and paramedical services to Mrs Stefanyszyn and that it owed her a duty to exercise reasonable care in providing those services.
2. It claimed, however, that it was Dr Brown and other medical practitioners "retained by or on behalf of" patients who undertake the medical management of their medical conditions and that it was Dr Brown who had provided Mrs Stefanyszyn with that management. It also relied on a disclaimer which Mrs Stefanyszyn had signed, which provided: "she acknowledged, amongst other things, that she would not hold the Hospital responsible or liable for any injury caused by the negligence or breach of her private treating doctor(s), including the cross claimant"
3. Curiously, amongst the matters which the Hospital did not admit were that medical practitioners might reasonably rely on its nurses to alert the practitioner to a deterioration in a patient's condition and to record the patient's vital signs; that it had a duty to record vital signs; or to advise a patient's medical practitioner of a deterioration in the patient's health. As to post-operative observations it pleaded however at para 17 that: "… the Hospital Services included the taking and recording of post-operative observations of a patient at appropriate times and in appropriate circumstances in the exercise of professional judgment by the nursing staff at the Hospital …"
4. The Hospital advanced similar pleadings in relation to taking and recording post-operative observations, post-operative charts, including four hourly graphic charts, its clinical pathway documents, fluid balance charts oxygen saturation levels. It also admitted failures to record various identified observations, but denied other alleged failures or their consequences.
5. In answer to the whole cross-claim the Hospital pleaded at para 76 that it: "a. denies that the cross claimant is entitled to the relief sought from the Hospital as alleged or at all; b. alternatively, says that the cross claimant caused and/or materially contributed to, the damage to the deceased and relies on the plaintiff's allegations of negligence against the cross claimant; c. says that its liability is to be determined in accordance with the provisions of Parts 1A of the Civil Liability Act (NSW) ("the Act"), including but not limited to sections 5D and 50 of the Act; and d. says that at all material times the Hospital acted in a manner that was at the time widely accepted as competent professional practice."
6. By its admissions the Hospital accepted that it has not acted "in a manner that was at the time widely accepted as competent professional practice". That it had not was well established by the expert evidence which the parties led. At the hearing it was also announced that a s 5O defence would not be pursued.

Admissions

1. The Hospital's admission that it had breached the duty which it owed Mrs Stefanyszyn was made in the following terms: "(a) Its nursing staff, for whom the Hospital is vicariously liable, failed to record observations in the clinical pathway document for Mrs Stefanyszyn for the night duty on 3 December 2008. (b) Its nursing staff, for whom the Hospital is vicariously liable, failed to record all of the observations in the 4 hourly graphic chart on 3, 4, 5 and 6 December 2008."
2. The extent of the Hospital's breaches of the duty which it owed Mrs Stefanyszyn thus remained in issue. What was common ground, however, was that contrary to the views which some of the experts seemed to hold, the duty which the Hospital owed Mrs Stefanyszyn was non-delegable, and any breach of its duty to her was not subsumed by any breach of the independent duty of care which Dr Brown owed her.

Issues

1. Dr Brown and the Hospital finally identified as remaining in issue between them to be: "(a) What is the role of each of a VMO, CMO, nursing staff member; (b) The necessity of observations on a post-operative ward, what observations are required and why they are required; (c) The risk of harm to a patient in a post-surgical ward after abdominal surgery if regular observations are not taken and/or recorded; (d) The point in time up until which the deceased's death was preventable and the means of its prevention; (e) What medical investigations and procedures should have been instituted to treat the deceased's condition; (f) The appropriateness or deficiencies of either of both of Dr Brown's and the Hospital staffs' reviews, assessments, observations and notations of the deceased; (g) If the Cross Claim is made out against the Hospital, what is the appropriate apportionment as between the Cross Claimant and Cross Defendant; (h) Did the Hospital owe a duty of care to the deceased and to the Plaintiffs; (i) What was the scope and content of that duty; (j) Did the Hospital breach that duty of care; (k) Did any breach by the Hospital materially contribute to the death of the deceased?"
2. There was also issues as to Jones v Dunkel (1959) 101 CLR 298 inferences which arose to be considered, given the parties' failures to give and call evidence and the Hospital's failure to produce a document in response to a subpoena.

Liability under s 5(1)(c) of the Law Reform Miscellaneous Provisions Act is established

1. It was not in issue that each of the plaintiffs suffered damage as the result of Mrs Stefanyszyn's death.
2. Section 5(1) of the Law Reform (Miscellaneous Provisions) Act relevantly provides: "5 Proceedings against and contribution between joint and several tort-feasors (1) Where damage is suffered by any person as a result of a tort (whether a crime or not): … (c) any tort-feasor liable in respect of that damage may recover contribution from any other tort-feasor who is, or would if sued have been, liable in respect of the same damage, whether as a joint tort-feasor or otherwise, so, however, that no person shall be entitled to recover contribution under this section from any person entitled to be indemnified by that person in respect of the liability in respect of which the contribution is sought. (2) In any proceedings for contribution under this section the amount of the contribution recoverable from any person shall be such as may be found by the court to be just and equitable having regard to the extent of that person's responsibility for the damage; and the court shall have power to exempt any person from liability to make contribution, or to direct that the contribution to be recovered from any person shall amount to a complete indemnity.
3. As discussed in Elayoubi v Zipser [2008] NSWCA 335 at [57]: "… If the negligence of two tortfeasors each contributes to the indivisible harm suffered by the victim, each is liable for the harm suffered. If neither were negligent, no harm would have been caused. If either one were negligent and the other not, in each case the negligence would have caused the harm. But a conclusion that if both were negligent and the harm eventuated, neither was responsible for that harm, invites a question as to whether the reasoning process has gone awry…."
4. Dr Brown accepted that he bore the major responsibility for the cause of Mrs Stefanyszyn's death, which he initially quantified to be at least 60% and later two thirds. He contended, nevertheless, that negligence for which the Hospital was responsible had also contributed to Mrs Stefanyszyn dying from a preventable cause. This the Hospital denied. If it was wrong in that denial, it contended that its contribution would be assessed at no more than 5%.
5. For reasons which follow, I am satisfied that Dr Brown has established that Mrs Stefanyszyn suffered damage as the result of the Hospital's negligence, as well as from his own and that its contribution should be assessed to be 20%.

The Civil Liability Act 2002 (NSW)

1. The question of whether negligence on the Hospital's part contributed to Mrs Stefanyszyn's death requires consideration to be given to provisions of the Civil Liability Act 2002 (NSW), including s 5D which provides: "5D General principles (1) A determination that negligence caused particular harm comprises the following elements: (a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability). (2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. (3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent: (a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and (b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest. (4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party."

The nature of the Hospital's duty

1. Before surgery, Mrs Stefanyszyn signed a standard form "Ellis disclaimer" which provided: "I have engaged Dr Oliver Brown as my private treating doctor to undertake the medical management of my medical condition and to provide medical services to me. I acknowledge that my private treating doctor is not an employee, servant or agent of the hospital and I will not hold the hospital responsible or liable for any injury to me caused by the negligence or breach of duty by my private treating doctor, or any other doctor or health professional engaged by me or by my private treating doctor to provide me with medical, pathological, radiological or other medical type services. I acknowledge that the hospital will provide hospital facilities for nursing services and paramedical services to assist with my medical management and services, and is liable for any injury to me caused by any negligence or breach of duty by it in respect of these services provided to me."
2. It was common ground that this agreement was relevant to a determination of the duties which Dr Brown and the Hospital each owed Mrs Stefanyszyn.
3. In Kondis v State Transport Authority [1984] HCA 61; (1984) 154 CLR 672 Mason J discussed the general nature of the duty which a hospital owes to a patient observing at 686:- ""The liability of a hospital arises out of its undertaking an obligation to treat its patient, an obligation which carries with it a duty to use reasonable care in treatment, so that the hospital is liable, if a person engaged to perform the obligation on its behalf acts without due care: Gold [1942] 2 KB 293 at 304. Accordingly, the duty is one the performance of which cannot be delegated, not even to a properly qualified doctor or surgeon under a contract for services: Cassidy [1951] 2 KB 343 at 364."
4. Such a duty is more stringent than the basic common law duty to take reasonable care. As Mason J explained at 687: "… when we look to the classes of case in which the existence of a non-delegable duty has been recognised, it appears that there is some element in the relationship between the parties that makes it appropriate to impose on the defendant a duty to ensure that reasonable care and skill is taken for the safety of the persons to whom the duty is owed. … The element in the relationship between the parties which generates a special responsibility or duty to see that care is taken may be found in one or more of several circumstances. The hospital undertakes the care, supervision or control of patients who are in special need of care. … In these situations the special duty arises because the person on whom it is imposed has undertaken the care, supervision and control of the person or property of another or is so placed in relation to that person or his property as to assume a particular responsibility for his or its safety, in circumstances where the person affected might reasonably expect that due care will be exercised."
5. As discussed in Elliott v Bickerstaff [1999] NSWCA 453; (1999) 48 NSWLR 214, the basis of a hospital's duty arises out of the hospital/patient relationship and the scope of its duty out of the nature of the services which the hospital agrees to provide the patient. Thus, as discussed in Ellis v Wallsend District Hospital (1989) 17 NSWLR 553, there is a distinction between the duty owed by a hospital which functions as a place where medical care facilities are provided for the use of a physician and his patient, and that of a hospital which functions as a place where a person in need of treatment goes, in order to obtain treatment provided by the hospital.
6. The treatment provided in the emergency department of a hospital provides a commonplace example of the latter, in which case the Hospital will be responsible for the negligence of the physicians it employs. In the former, the patient's use of the hospital is the result of the arrangement made between the hospital and the physician, by which that physician is granted hospital privileges. In such cases the hospital is not responsible for the negligence of the physician, but only that of those employed to provide the services the hospital provides to the patient.
7. It is this type of arrangement which the Ellis disclaimer which Mrs Stefanyszyn signed was intended to document. The services which the Hospital actually provided to her, while she remained in its care, cannot be overlooked in understanding the nature of the services the subject of the disclaimer and the scope of the stringent duty of care which it owed her. That is, to ensure that reasonable care was used in the provision of the services which the Hospital actually provided her.
8. In the result, it must be concluded that the scope of the duty which the Hospital owed Mrs Stefanyszyn extended not only to the nursing and paramedical services it provided her, but also to the services which it did, or ought to have provided her, by all members of the clinical team it assigned to help Dr Brown provide her with the care she required, in accordance with its policies, while she was admitted to its facilities.
9. Views were expressed by Dr Lubowski and Professor Korda, experts called by the Hospital, as to its "burden or responsibility" for Mrs Stefanyszyn's deteriorating condition "passing" at points which they identified, from the Hospital to Dr Brown. Theirs was a view which the other experts did not share, correctly in my view.
10. That view is wrong in law and may not be accepted, reflecting as it does a misunderstanding of the nature of the Hospital's non-delegable duty to Mrs Stefanyszyn. Both Dr Brown and the Hospital each independently owed her a duty of care. While those duties no doubt overlapped, given how both Dr Brown and the Hospital's staff were involved in her care, their respective duties to her never passed from one to the other. Whilever Mrs Stefanyszyn remained as an admitted patient at the Hospital, the duty which it owed her could not be delegated to anyone else.
11. Submissions such as that the Hospital was "assisting" Dr Brown in Mrs Stefanyszyn's" "management" and that "nurses were duty bound to "assist" him with that medical management", directed as they and other submissions were to the nature of his interactions with the Hospital's nursing staff, also cannot detract from the stringent duty of care which, at law, the Hospital owed Mrs Stefanyszyn, irrespective of any acts or omissions on Dr Brown's part.
12. The Hospital's duty to Mrs Stefanyszyn was broader than it contended. But there was, in fact, no suggestion that any member of the nursing staff, or Dr Judd, who attended on Mrs Stefanyszyn on day 3 post her admission, after a request by a nurse, or the doctors who responded when Mrs Stefanyszyn went into cardiac arrest on day 5, were not persons for whom the Hospital had vicarious liability in the event of negligence in the treatment they provided, or failed to provide her.
13. The duty which the Hospital owed Mrs Stefanyszyn extended to the provision of all such services, when she required them, during her post-operative care at the Hospital.

The evidence - Jones v Dunkel inferences

1. A curious aspect of this case was that neither Dr Brown nor any of those who worked at the Hospital in providing care for Mrs Stefanyszyn were called to give evidence. That gave rise to the need to consider the operation of the Jones v Dunkel principle.
2. As I explained in Sanchez-Sidiropoulos v Canavan [2015] NSWSC 1139 as to that principle, at [38] - [39], it is: "38 ... concerned with a party's unexplained failure to call a witness, where it would be natural for that party to call that witness, or where the party might reasonably be expected to call that witness. Its operation was recently considered again in RHG Mortgage Limited v Rosario Ianni [2015] NSWCA 56 at [75] - [96]. The three relevant considerations are: first, that the missing witness would be expected to be called by one party, rather than the other; second, that this evidence would elucidate a particular matter and thirdly, that the absence is unexplained. 39 If those conditions are satisfied, then as discussed at [79] of RHG Mortgage, the inference may be drawn that the witness' evidence would not have helped the party's case. That inference may then be used in two ways. Firstly, in deciding whether to accept any particular evidence given, either for or against that party, which relates to a matter about which the person not called as a witness could have spoken. Secondly, in deciding whether or not to draw inferences of fact, which are open in relation to matters about which that person could have spoken."
3. Another curious part of the case was that while Dr Brown admitted his negligence, and the Hospital submitted that Jones v Dunkel inferences should be drawn against him, in its written submissions it was argued that it should be concluded that he was "careful and diligent in his post-operative treatment of Mrs Stefanyszyn." In the face of what the evidence established, including that given by the experts whom the Hospital itself called and Dr Brown's properly admitted negligence, that finding is not open.

Dr Brown

1. The onus falls on Dr Brown to make out his case. Undoubtedly he could have given evidence on certain factual issues. There was no real explanation as to why he did not give evidence in support of his own case. That he relied on the Hospital's own records to establish the breaches of its duties, does not adequately explain his decision not to give evidence in his own case.
2. The nature and extent of the Hospital's duties and their breach remained in issue, as did the question of whether Mrs Stefanyszyn's life could have been saved, had identified steps been taken at particular times. Dr Brown's assessment of her condition at various times was clearly relevant to what was in issue, as the evidence given during the experts' concurrent evidence confirmed. His evidence as to matters such as what information he saw when he examined Mrs Stefanyszyn at various times; what nursing staff then told him; and what he then said to nursing staff, were all relevant to a determination not only of the nature and extent of any breaches of the Hospital's duty to Mrs Stefanyszyn, but also to the question of whether they contributed to her death.
3. In the result the inference which must be drawn is that Dr Brown's evidence would not have assisted the case which he advanced.

The Hospital

1. Two matters need to be considered in relation to the Hospital. The first, its failure to call evidence from any of those involved in Mrs Stefanyszyn's care and the second, its failure to produce a relevant document which had been subpoenaed.
2. Given the Hospital's pleaded case as to the professional judgments which were open to its nursing staff to make, as to the care which Mrs Stefanyszyn required at various times, it cannot be doubted that it was natural for it to call the relevant staff to give evidence in its case. There was no explanation for the absence of evidence from any of the Hospital's obvious witnesses. In the result it must also be inferred that their evidence would not have assisted the Hospital's case.
3. It was Dr Brown who issued a subpoena to the Hospital requiring the production of certain documents, including the Hospital's policies manual, which is referred to in the Clinical Pathways Guidelines document for "Vaginal Hysterectomy", the document which the nursing staff followed during the first four days of Mrs Stefanyszyn's post-surgical care.
4. On the evidence the manual was an important document, because it could have shed light on various of the matters in issue. That inference flows from the Guidelines document, as well as from the evidence which the experts gave.
5. The manual was not produced. When the production of the manual first arose at the hearing, it was suggested that some explanation had earlier been given for the Hospital's failure to produce it. Later it emerged that no explanation could be pointed to. The correspondence tendered did not, in fact, deal with that document at all.
6. The result was that absent any explanation for the Hospital's failure to produce its own manual, it must be inferred that the document would not have assisted its case.
7. Contrary to the submissions advanced for the Hospital, production of the manual did not depend on Dr Brown's pursuit of its production, including by way of allegation of contempt, in order that he be able to rely on its non-production to support his case.
8. A subpoena is an order of the Court. Such orders impose continuing obligations, until the subpoena is either complied with, or set aside. Failure to comply with any order of the Court, including a subpoena, involves contempt, absent explanation which is accepted. A party is certainly not entitled to seek to obtain a forensic advantage, simply by refusing or failing to give such production.
9. I will, accordingly, deal separately with the question of the Hospital's apparent contempt, after judgment has been given.

The roles of the Hospital's staff

1. Dr Brown called expert evidence from Associate Professor Raftos, Dr Lee and Ms Eunice Gribbin and the Hospital from Dr Lubowski, Professor Korda and Dr Duflou.
2. Their evidence supports the conclusion that the Hospital's negligence was more extensive than it was prepared to admit. Their views do have to be considered in light of the respective duties which Dr Brown and the Hospital each owed Mrs Stefanyszyn, which I have discussed. They also have to be considered in light of the Jones v Dunkel inferences which have to be drawn, as earlier discussed.

The joint report

1. All experts participated in a conference which produced a joint report of 3 May 2016. They there addressed questions posed to them by the parties. All were answered, although the Hospital initially reserved the right to object to some questions. That reservation was not exercised, following the Hospital's admissions. Nor were any objections to the experts' reports finally pressed. The experts gave concurrent evidence, although Associate Professor Raftos did not participate during the entirety of that evidence.
2. In the joint report it was agreed that: 1. (By the doctors apart from Dr Duflou, who expressed no opinion) the role of a treating VMO in the post-operative management of a patient is to supervise the management of the patient, including wound care, thrombo prophylaxis, medications, fluids and to consult and work with nurses and junior medical officers to predict, pre-empt and treat anticipated complications, which is usually done by daily review 2. As to the role of a career medical officer at the Hospital: 1. Associate Professor Raftos considered such an officer's role to be to respond to nurses' requests to see a patient, perform appropriate assessments and in that context, discuss issues and concerns about patient management with the supervising surgeon. 2. Professor Korda considered the role not to be autonomous, but to see a patient in an emergency, or on demand, and to respond to nurses requests 3. Dr Lee considered that it involved performance of simple procedures and to order blood tests and medications 4. Dr Lubowski agreed with all of these observations and also considered that the role differed, at different hospitals. 1. As to the role of nursing staff: 1. Ms Gribbin described their role to be to follow treating doctors' orders; report changes in conditions; take accurate, regular readings of standard post-operative observations, as well as specific observations pertaining to the surgery, or as requested by surgeons and anaesthetists; to observe for infections and that recovery is not following the expected path; to respond to verbal concerns from patient and treating doctor; to record all findings on appropriate charts and/or related care pathways, if used at the facility and in patient progress notes; to identify fluctuations which may be abnormal; to contact surgeons and/or anaesthetists if there are concerns about observations or the general recovery of the patient; to be accountable for professional practice in accordance with National Competency Standards; to work under direction and supervision of more senior nursing staff; and to report concerns about patient health status and response to interventions to senior nursing staff. 2. Dr Lubowski considered nurses to have an important role in management of the patient. 3. Professor Korda considered it necessary for nurses to make appropriate and routine observations. 4. Associate Professor Raftos and Dr Lee agreed with Ms Gribbin, Dr Lubowski and Professor Korda. 5. Dr Lee also considered that nurses had a role in qualitative assessment and clinical impression of patient conditions, noting the four tiers of nursing management which provide overarching clinical care and administrative roles.
3. The documentary evidence established that nurses at the Hospital were called on to perform duties of the kind described by Ms Gribbin and that the Hospital employed medical staff to perform the work described by Associate Professor Raftos.

The experts' view as to deficiencies in Mrs Stefanyszyn's post-operative care

1. It was common ground between all experts that there is a risk of harm to a patient in a post-surgical ward after abdominal surgery, if regular observations are not taken. Changes in observations may reflect changes leading to increased morbidity and mortality and abnormal observations may be indicative of a long list of potential complications.
2. All the doctors agreed that there were deficiencies in Dr Brown's post-operative care. All experts also agreed that there were deficiencies on the Hospital's part, but whether that contributed to Mrs Stefanyszyn's death was not agreed.
3. All experts, apart from Dr Duflou who did not express an opinion, agreed that the nursing staff did not undertake safe and appropriate observations and notations in respect of Mrs Stefanyszyn's condition, during her admission.
4. Dr Lubowski considered, however, that this had to be considered in a context where nurses took observations and that they could not be blamed for Mrs Stefanyszyn's death, given Dr Brown's actions. He considered that Dr Brown was aware of the seriousness of her condition when he saw her on the afternoon of 5 December and "with that awareness the burden or responsibility passed to him". Professor Korda agreed. He considered that then apparent "red flag" signs were known to Dr Brown and that any additional information known to the nurses would not have had an impact on her outcome.
5. Dr Lee disagreed. He considered the failing of the nursing staff to have been in allowing Dr Brown to persist in his diagnosis. They were not passive observers, but integral to the management team and that they had also failed to provide the level of care expected of them.
6. Associate Professor Raftos considered that Mrs Stefanyszyn's oxygen saturation levels were then outside the range and should have promoted a review which, if undertaken, would have revealed the pneumonitis then present and she would have survived.
7. Ms Gribbin agreed with Dr Lee and Associate Professor Raftos. She considered that nurses had to make their own assessments of patients. If they did not agree with Dr Brown, they needed to question his actions and they also had to assist him by making observations.
8. The experts agreed that on a post-surgical ward of a private hospital, observations should regularly be taken as to patient temperature, heart rate, blood pressure, oxygen saturation, fluid balance and mental state. After the first day post-operatively, they should be taken four hourly and then adjusted, depending on a patient's condition.
9. The experts also agreed that post-operative complications are common and need to be detected early, as they may lead to increased morbidity and mortality. Required observations are taken to assist in identifying such complications and to assess changes in the patient's condition; to help plan further patient management; and to maintain a progressive record which shows trends in recovery.
10. The Hospital admitted that its staff failed to record relevant observations on 3, 4 and 5 December. The evidence establishes that its failures were more extensive than it admitted.
11. For reasons which I will explain below, it must be concluded that the evidence established that the Hospital's deficiencies included that required observations were not taken, or recorded by the Hospital's staff, as its duty to Mrs Stefanyszyn required. Nor did they take other steps required by the Hospital's own policies.

The Hospital's systems were not adhered to

1. The "Vaginal Hysterectomy guidelines" the clinical pathways guidelines under which Mrs Stefanyszyn was being cared for, began with "THIS IS A LEGAL DOCUMENT AND ALL CARERS ARE ACCOUNTABLE FOR DOCUMENTING ALL CARE ADMINISTERED". The Guidelines also provided: "The complete Clinical Pathway document consists of a flow chart booklet: The booklet is a legal component of medical records. Please read the documentation policy in the hospital policies manual. The Clinical Pathway is a guide only and carers must consider the appropriateness of a particular intervention for each patient based on the individual's need. The Clinical Pathway depicts optimal care and interventions, as designed by the multidisciplinary clinical team. … Deviations from the Pathway: In the case of extended stay, following development of complications, co-morbidities or in the event of other discharge delaying issues, a decision must be made regarding utilisation of pathway. The Clinical Pathway may be discontinued only after discussion with relevant members of the clinical team, i.e. NUM, CNS, VMO, who will confirm a decision to either utilise "extra stay" pathway days not to commence a standard care plan."
2. On the expert evidence, "Pathway" documents such as this have been developed for use in hospitals, as part of a system by which the recovery and management of the health of admitted patients is managed in hospital by a team of professionals, of whom the treating surgeon is one, albeit an important one. That is because of the nature of the surgeon's role and responsibilities, both during surgery and post-operatively.
3. The Hospital staff, who form part of the clinical team responsible for patient care, perform important functions post-operatively, when the majority of such care is delivered by nursing staff. Such systems are designed to help avoid human error and patient injury and death.
4. The Guidelines contemplated that Mrs Stefanyszyn would be discharged on Day 4, post-operatively. That did not occur. Either an "extra stay pathway" or a "standard care plan" should then have been implemented and followed by Hospital staff, after discussion by the clinical team. That did also not occur, despite her repeated variances from the Guidelines and obvious ill health.
5. The Procedures manual was not produced, nor was evidence called from any relevant Hospital staff member, either from those responsible for the creation and implementation of the manual and the pathway guidelines and care plans, or from those responsible for their actual implementation in Mrs Stefanyszyn's case. On the evidence at Day 4 post-operatively, when the Vaginal Hysterectomy guidelines contemplated that she should be discharged, or moved to care under a different guideline or plan, after discussion by the clinical team assigned to her care, the Hospital did not follow the procedures it had devised to ensure that she recovered from what ought not to have been a life threatening procedure.
6. The Hospital had established a system which sought to ensure that it met its duty to its patients, by development, implementation and adherence to its policies. That system was not adhered to in Mrs Stefanyszyn's case by the Hospital or its staff.
7. The failure to produce the manual and to call evidence from relevant staff leads to the inference that neither the manual nor their evidence, could have assisted its case.

The resulting risk of harm which arose

1. The experts agreed that there is a risk of harm to a patient if required observations are not taken, but they could not say that a risk arose from each individual failure to take a particular observation. It was the changes which recorded observations disclosed, which might point to potential complications and increased morbidity/mortality, which were important.
2. Mrs Stefanyszyn had previously undergone bowel surgery. There was, in her case, a real risk that she might suffer post-operative complications, which had to be looked for and dealt with if they eventuated.
3. All those who cared for her post operatively thus had cause to pay particular attention to taking and recording observations which might suggest that she was suffering such complications and attending to her condition, if she did not recover in accordance with the Pathway guideline.
4. Given Mrs Stefanyszyn's failure to recover as the Pathway envisaged, with the red flags which repeated faecal vomiting presented, oxygen saturation and fluid balance observations were particularly important to be kept and recorded and it was particularly important for identified variances to be investigated.
5. The Hospital's failures to ensure that necessary observations were kept and the Pathway guidelines was adhered to by its staff, contributed to the results, namely that Dr Brown's surgical error was not identified, nor corrected, as it could have been and Mrs Stefanyszyn died.

How did the Hospital breach its duty?

1. A breach of the Hospital's non-delegable duty to Mrs Stefanyszyn could not result from any act or omission on Dr Brown's part. It could, however, result from acts and omissions on the part of the employees who actually provided her with the services it had agreed to provide her, for which the Hospital was vicariously liable. Its staff's adherence to its own guidelines was not Dr Brown's responsibility, it was the Hospital's.
2. As well as the Hospital's negligence in its staff not recording observations which its systems required be kept of Mrs Stefanyszyn, there was also negligence in their failure to make required observations and, as deteriorations in her condition were either detected, or ought to have been detected, in not taking available steps to deal with those deteriorations, as the Guidelines envisaged. The steps available included notifying Dr Brown and/or doctors on staff, who could have pursued the investigations and treatments which would have saved Mrs Stefanyszyn's life. When she was not discharged on Day 4, assessment by the clinical team was also required.
3. During the first four days of her post-operative care, the Clinical Pathways document provided that what was required was that action be taken in accordance with the following: "PROCEDURE WHEN USING PATHWAY • On admission, patient risk assessment is confirmed, interventions planned and documented, and pathway is commenced. • Place patient label or write name on each page of the Clinical Pathway where indicated. • Use black/blue pen only and complete all details on all pages, including date and length of stay. • The allocated nurse co-ordinates interventions but may not necessarily undertake all tasks. • As an outcome is achieved, the carer should initial the corresponding section. • Removal of drains, catheters and cannulas must be noted on the pathway, with date and time of removal recorded as soon as possible. • If an expected outcome is not achieved, a variance must be noted in the corresponding section of the pathway. • You must enter an arrow if the intervention or outcome is to be completed on the next shift, but must be addressed within the stage or a variance recorded. • If a planned event is not relevant to an individual patient, the carer should write "N/A". • A pathway day covers a 24 hours period, and teamwork across the 24 hour continuum will be required to ensure effective and accurate evaluation of patient progress. Definition of a Variance: "Any event or outcome that Is not anticipated on the pre printed Clinical Pathway" Outcomes are the end result of process, treatment or intervention. Failure to meet these outcomes is termed a "Variance", and analysis of the Variance in Clinical Pathways provides a means of improving performance. Variances may be positive or negative. Process for recording of a Variance: • To document a variance record "V" in the corresponding column. • Details of variance including description of event, actions taken by carer, including date and time, intervention implemented, outcome, are to be recorded in the progress notes. • The allocated nurse is responsible for ensuring all variances are addressed and documented. • Complete all details, as soon as possible after the variance has occurred. • Final outcome may not be apparent until some time after the variance has been noted and initial entry on variance has been made." (my emphasis)"
4. It was nursing staff who were by this guideline given responsibility for ensuring that all variances from the course of a patient's recovery outlined in the Clinical Pathways document were not only documented, but addressed. How they were addressed required the exercise of clinical judgment, as the experts agreed, given the nature of the particular variance. Outcomes were identified in the document to be the end result of process, treatment or intervention, not all of which could be provided by a nurse, but which nurses had to document.
5. A patient's failure to meet a specified outcome could be either positive or negative. If identified to be negative, a decision had to be made by nursing staff as to how the variance was to be addressed. That could be by treatment or intervention which a nurse had authority to implement; by referral to the treating VMO, Dr Brown in this case; or, particularly in the case of urgency, by referral to Hospital medical staff, as occurred on 3 and 6 December. The final outcome might take some time to become apparent, but it, too, had to be recorded in the document by nursing staff.
6. The evidence established that in Mrs Stefanyszyn's case the Pathways guideline was not implemented as intended, even though Dr Brown saw her every day. Such attendances, by themselves, could not satisfy the Hospital's duty to Mrs Stefanyszyn.
7. I have already discussed the deficiencies in the nurses' attention even to the keeping and recording of her ordinarily required observations. The experts agreed that when Mrs Stefanyszyn was not meeting the pathway, observations of her progress should have increased. While there was a disagreement between the experts about this, I am also satisfied that as her faecal vomiting continued, fluid balance charts should have been kept. That also did not occur.
8. Given what had happened during the surgery, it is not surprising that variances of various kinds were noted by nurses from Day 1 post-operatively, that day in relation to vomiting and bowels. There is no suggestion, however, that at this point, that could have suggested either to Dr Brown or nursing staff, that there was anything seriously amiss with Mrs Stefanyszyn.
9. On Day 2, 3 December, Mrs Stefanyszyn was again nauseous and other variances were identified, including at 9.10 pm vomiting of coffee coloured fluid. That was a serious variance, which was attended to by Hospital staff as the Pathways guidelines envisaged. Dr Judd was called to attend and identified a possible problem of post-operative ileus. That opinion was recorded and presumably seen by Dr Brown, who agreed and never departed from that diagnosis, notwithstanding further serious variances recorded in the days which followed, given Mrs Stefanyszyn's deteriorating condition. Again, however, there is no suggestion that at this point, Day 2, there was any error on the part of Dr Brown, or the Hospital's approach to Mrs Stefanyszyn's care. Ileus was a plausible diagnosis at that point.
10. This evidence thus demonstrated that under the system that the Hospital operated, nurses could and did call on doctors other than a surgeon such as Dr Brown, to attend to a patient, if they had a concern about a variance identified, which they considered required medical attention.
11. It is what happened from this point that the Hospital's admitted and otherwise established breaches of its duty to Mrs Stefanyszyn occurred.
12. In the expert's oral evidence it was common ground that Dr Brown's approach to her care subsequent was not only wrong, but inexplicable, given Mrs Stefanyszyn's deteriorating condition; continued faecal vomiting; and falling oxygen saturation level to 93% (and later 92%, which could, however, have been the same reading) on Day 4. That was also abnormal and a serious variance at this stage of recovery, when she should have recovered sufficiently to be going home.
13. Dr Lubowski described Mrs Stefanyszyn's situation then to be that "on every level she was sick". Given the faecal vomiting, this patient "had unequivocal evidence of either a bowel obstruction or an ileus, and if you leave a patient like that for three or four days, and have a high risk of aspirating and vomiting and dying", unless identified treatment was given. Dr Lubowski described this faecal vomiting to be an obvious red flag to any nurse or surgeon, in fact "the worst red flag that a surgeon would see". Still he considered that the nurses having raised Mrs Stefanyszyn's continuing vomiting with Dr Brown, neither they nor the Hospital were obliged to do more than was done to deal with Mrs Stefanyszyn's ill health. Professor Korda agreed.
14. Dr Lee and Ms Gribbin disagreed. In Dr Lee's view Mrs Stefanyszyn's continued vomiting should have been raised again with Dr Brown; but if he did not respond to that red flag, which to his mind suggested diagnosis fixation, then it had to be raised at least with other nurses in the Hospital's nursing hierarchy. Ms Gribbin agreed. Dr Lubowski considered, however, that this was something which did not occur "in the real world" and that nurses could not so force a surgeon's hand.
15. The experts did agree, however, that there was a spectrum, along which there would come a point where, despite a nurse having raised concerns about a patient with a treating surgeon, who did not respond by ordering the investigation of the cause of that deterioration, when the patient's condition did not improve, the nurse would have to raise the patient's condition with someone else.
16. The real question over which the experts disagreed was whether or not in Mrs Stefanyszyn's case, that point had been reached.
17. I consider that it had, even though that question may not be approached with the benefit of hindsight.
18. I have already discussed the problem with the views expressed by Dr Lubowski and Professor Korda about a transfer of responsibility for Mrs Stefanyszyn's deteriorating health from the nursing staff to Dr Brown, when he attended her on Day 4 post-operatively, on 5 December.
19. Concern about the course of her recovery first arose on Day 2, when on the evening of 3 December Dr Judd was called to attend her. He had written in her notes "Call me if any worries". By 4 December Mrs Stefanyszyn's declining health was apparent, even from what was recorded in the records. She had a history by the morning of 5 December of repeated faecal vomiting. The experts agreed that was a very serious variance from the Clinical Pathways document, which envisaged recovery to the point of discharge that day, being Day 4.
20. Despite this, Dr Brown did not investigate what was causing this vomiting. The experts agreed that an investigation would have resulted in treatment which would have prevented her death.
21. On the morning of 5 December, Dr Brown saw Mrs Stefanyszyn before 10.45am, directing that she be nil by mouth for 24 hours and that she be given intravenous fluids. No tests were ordered. At 12.45pm Mrs Stefanyszyn was recorded as having vomited approximately four times that morning, with "large faecal smelling vomit noted", but others in bathroom unwitnessed. It was also noted that she was feeling worn out.
22. Dr Brown saw Mrs Stefanyszyn again later that day. The time of his visit was not established, nor whether that was the result of his concern, or advice from nurses. That attendance must have been before 9.20pm, when it was recorded by nursing staff that there had been nil nausea, but Mrs Stefanyszyn's bowels were still not open and that her observations were stable. In fact, her oxygen saturation levels were abnormally low, having been recorded at 93% earlier in the day and 92% later, but there was no reading taken then, or any increased monitoring of these levels, or any other of her vital signs, implemented. Not even the normal observations were recorded by nursing staff. Nor was she assessed by the Clinical team that day, as she should have been.
23. The Hospital argued, nevertheless, that it was relevant to consider that Dr Truskett, a surgeon, having reviewed Dr Brown's treatment at the Coroner's request, had concluded that Dr Brown's approach to Mrs Stefanyszyn's care had been attentive and involved decisions, which on information available to him, appeared appropriate. It submitted that the nursing staff also had no reason to question Dr Brown's treatment and that: "It is surprising that Dr Brown advances a case that the nurses were required to form a view that they should take action which departed from the treatment of the treating surgeon responsible for the medical management of the patient, in circumstances where an independent surgeon considered that Dr Brown's post-operative treatment appeared to be reasonable."
24. The Hospital also relied on the views of Professor Korda and Dr Lubowski that the nurses were not required to do any more than they did, in response to Mr Stefanyszyn's observed oxygen levels. It was also submitted that Mrs Stefanyszyn's post-operative management "was apparently regular".
25. These submissions cannot be accepted.
26. The evidence well establishes that Mrs Stefanyszyn's post-operative management was not regular, as the Hospital's admissions accept. As the Hospital itself submitted, the charts which were maintained by the Hospital, incomplete as they were, showed that Mrs Stefanyszyn was "markedly depleted of fluid and electrolytes". Dr Truskett's views have to be considered in light of the Hospital's later admission that required observations were not being kept and the other deficiencies I have identified, as well as the views of the experts.
27. The Hospital's failures were not in failing to advise Dr Brown of matters which he already knew, but in failing in its duty of care to provide Mrs Stefanyszyn with the services she required, including by its nurses making and recording observations as to her deteriorating condition on 5 and 6 December; having her condition considered on 5 December by the clinical team, as the Guidelines required; and when she required medical assistance, identifying that she did and taking steps to ensure that she received it, as Dr Judd had invited in the note written on her chart on 3 December, if there were further worries, which clearly there should have been.
28. At 4 am on 6 December, it was recorded that Mrs Stefanyszyn had had another large vomit, after a coughing episode, but was not nauseous. Despite this further serious variance, her oxygen saturation levels and other vital signs were not checked and neither Dr Brown, nor a doctor on staff was called to check on her deteriorating condition. That involved further serious negligence for which the Hospital was responsible.
29. There was more.
30. The various records kept by the Hospital after this time raise unanswered questions as to what then happened to Mrs Stefanyszyn and what, in fact, those on duty did to provide her with the treatment she so desperately required.
31. The autopsy report found a large amount of inhaled gastric contents in Mrs Stefanyszyn's oropharynx, larynx and upper tranches, with evidence of aspiration and a large amount of lung affected by acute bronchopneumonia with aspiration, which may have been caused by recurrent episodes of vomiting and aspiration causing acute pneumonia, in a process which appeared to be several days old. It was also concluded that Mrs Stefanyszyn was probably septic as the result of overwhelming bacterial infection causing low blood pressure, abnormal organ function and organ failure.
32. The report noted the failure to investigate Mrs Stefanyszyn's post-operative nausea and vomiting, which had persisted for several days and suggested surgical review of her post-operative management.
33. It was then that the report was commissioned from Dr Truskett, who considered various documents and spoke to Dr Brown. From him Dr Truskett understood that Mrs Stefanyszyn was recognised to be a high risk patient, with a history of bowel resection and high blood pressure, noted in the clinical history and as a variance in the Clinical Pathway document.
34. Dr Truskett understood the sequence of events to be that on 5 December, Mrs Stefanyszyn appeared to be improving and that "there followed a catastrophic vomit which led to probable significant aspiration, airway obstruction and death". This is an incomplete understanding of all that occurred.
35. Contrary to the records, the Hospital's admissions and the views of the experts, including those the Hospital itself called, Dr Truskett considered that "Mrs Stefanyszyn was observed in an appropriate fashion". She was not. His view that on the day before her death Mrs Stefanyszyn's situation was resolving, failed to pay necessary attention to her repeated vomiting that day and overnight, particularly the further faecal vomiting at 4 am on 6 December. This unarguably required nurses to act to ensure that Mrs Stefanyszyn received urgent medical attention. What happened from 5 am onwards, was also deficient. Dr Truskett's conclusion that the Hospital and its agents "acted appropriately to the clinical context", simply cannot be accepted.
36. Dr Duflou's evidence was that it was unusual to see a report of a death to a coroner filled in by two people. There were, in fact, quite a number of differing accounts.
37. The entry in Mrs Stefanyszyn's chart for 5.30 hours said "Colleague alerted me to pt. not feeling well. Went into see pt. Same. Unresponsive. Pressed emergency button and prepared for Met team to arrive, commenced life saving intervention."
38. Dr Reilly and Dr Stanley were involved in the response, but their accounts depart markedly from this record.
39. Dr Stanley's note refers to the patient calling for assistance at 5 am with a tickle in her throat, with no other symptoms, and being given mouth wash to gargle and another patient calling for assistance for Mrs Stefanyszyn 15 minutes later, when her oxygen saturation was found to be 73%. Oxygen was given, she was having difficulty breathing, her heart rate was 130bpm and her blood pressure could not be recorded. The MET team was called and on arrival copious amounts of faecal fluid was found in her airway, there was nil response, or palpable pulse and she could not be resuscitated, despite CPR.
40. Dr Reilly's note recorded a cardiac arrest/emergency call being received at 5.10 am. On arrival Mrs Stefanyszyn was found in a supine position with copious faecal matter spread over her and the bed, from the head of the bed to waist level. CPR was in progress but being impeded by continuous faecal matter arising from her mouth. It is not necessary to record the steps pursued to save her life, but this note records that: "History given by ward staff was that the pt had been ? sitting up in bed, talking to one of the staff, then instantly lost consciousness and vomited faecal matter. During resuscitation efforts I asked for the admitting consultant and the ICU consultant Dr Stanley to be telephoned. When Dr Stanley arrived we discussed events that had taken place, checked the rhythm (asystole with agonal rhythm) and ceased resuscitation efforts. The admitting consultant arrived at that time."
41. The report given by the Hospital to the Coroner by Dr Reilly was also different. It said: "3/7 day post op had vomiting 4/7 post ope paralytic ileus diagnosed and made nil by mouth. Just before 5am Saturday 6/12 pt buzzed for assistance, complained of tickle in throat, asked for water. Pt reviewed by RN 15 mins later, clammy, YO SOB, recorded 5a02 73% O2 applied. HR 130. Pt was sponged + continued to talk to RN. BP unrecordable. Pt subsequently collapsed rapidly with LOC and vomiting of faecal matter ++.
42. On the expert evidence, what was presented by Mrs Stefanyszyn's oxygen level, heart rate and unreadable blood pressure was a medical emergency. A cardiac arrest was imminent and Mrs Stefanyszyn required the immediate help of the emergency team, not sponging.
43. In the result there can be no question that the Hospital's negligence was more extensive than it was prepared to admit.

What should the Hospital have done?

1. The evidence establishes that Mrs Stefanyszyn was recognised to be an at risk patient. Her departure from the expected path of recovery on Day 3 post-operatively was identified by nursing staff and led to her receiving required medical attention. Her observed condition on Day 4, 5 December, when she ought to have been ready for discharge and the treatment Dr Brown then prescribed that she was to receive, nil by mouth and intravenous fluids, should all have been considered by the clinical team that day, under the Hospital guideline, given that Mrs Stefanyszyn was not discharged that day. After that consideration another documented pathway document or care plan, for the balance of Mrs Stefanyszyn's admission, should have been implemented.
2. Given Mrs Stefanyszyn's observed continuing abnormal condition on 5 December, the Hospital should also have kept her under increased observation when her oxygen saturation level was identified to have fallen to 93% and then 92%. Dr Brown instigated the treatment he prescribed, but hospital staff should then have made and recorded required observations, at more frequent intervals, including as to her oxygen saturation level and fluid levels. They should also have called either Dr Brown or a doctor on staff to assess her condition on nursing staff identifying any further deterioration, or deviation from the expected pathway, which ought to have been implemented after she was assessed by the clinical team that day.
3. Having failed to take those necessary steps on 5 December; at 4 am on 6 December on nursing staff becoming aware that Mrs Stefanyszyn had again vomited faecal matter, they ought to have taken and recorded observations, including as to Mrs Stefanyszyn's oxygen saturation levels, heart rate and blood pressure. They ought also then to have called either Dr Brown or a doctor on staff, to assess her ongoing, serious variance from the expected course of her recovery, to ensure that she received treatment which the evidence established she then desperately required.
4. Failing those steps having been taken, when she called for further assistance at 5am on 6 December, her observations should have been immediately taken and recorded, and emergency medical assistance should have been called for immediately upon nursing staff identifying that her oxygen saturation level had fallen to 73%.

Did the Hospital's breaches materially contribute to Mrs Stefanyszyn's death?

1. In accordance with s 5E of the Civil Liability Act, Dr Brown bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.
2. There is an issue between the parties as to whether the onus falling on Dr Brown to establish, on the balance of probabilities, that the Hospital's conduct materially contributed to Mrs Stefanyszyn's death has been met. Section 5D must be borne in mind.
3. There was also an issue to whether Dr Brown saw, at relevant times, the various records kept by nursing staff, inadequate as some of them were and what should have been done about that.
4. In resolving these questions it must be borne in mind that the proper inference from Dr Brown's failure to give evidence in support of his own case and the Hospital's failure to call evidence in its, is that such evidence would not have assisted their respective cases.
5. Bearing these somewhat conflicting considerations in mind, I have concluded that Dr Brown did see Mrs Stefanyszyn's records. That is supported by the evidence of the medical experts. Ordinarily surgeons such as he would look at such records, which are usually available to them, although on Ms Gribbin's evidence they do not invariably look at all of them. Dr Truskett spoke to Dr Brown. There is nothing in his report to suggest that he did not look at her records.
6. The Hospital had an obligation to Mrs Stefanyszyn to make and record required observations. On the expert evidence, if it failed to do so, that is something which Dr Brown should have pursued. The proper inference is that he did not, nor did the Hospital, which had its own duty to Mrs Stefanyszyn.
7. There is no issue that had Mrs Stefanyszyn received the medical attention she required on 5 December, she would not have died. The evidence establishes even if that assistance had been given at 4am on 6 December, she would have survived.
8. Ms Gribbin considered that the vomiting at 4am was a red flag which required assistance for her to be called from the MET team. She could give no opinion as to whether, if she had received such attention, her death could still have been prevented.
9. Dr Lubowski considered her death to have been preventable until the afternoon of 5 December and possibly on 6 December, but not when Mrs Stefanyszyn had the fatal vomit after 5am that day. Professor Korda considered that her death was preventable on 5 December, but not 6 December. He said that by 5am she was terminally ill and could not recover; that she had a major electrolytic imbalance; she was inhaling vomit, which was why her oxygen saturation was low; and that she would have died anyway, if the MET team had been called sooner than it was.
10. Dr Duflou and Dr Lee considered that Mrs Stefanyszyn's death may have been preventable even after 4am on 6 December, if assistance had been called before her cardiac arrest.
11. The Hospital's breaches included not adhering to the guideline document under which Mrs Stefanyszyn was being cared for during her admission; and not making and recording required observations; on 5 December, despite Dr Brown's views, not obtaining further medical attention for Mrs Stefanyszyn, after her continued, repeated faecal vomiting and abnormal oxygen saturation levels were detected; in not having the clinical team assess Mrs Stefanyszyn on 5 December as the guideline envisaged; and not implementing a new pathway document or care plan for her continued care; in not obtaining medical attention for her at 4 am on 6 December, when she vomited again; and that on her seeking further help at 5am, not providing her with immediate emergency assistance.
12. The proper inference from the evidence as to these failures is that if the nursing staff had adhered to the Hospital's own systems and had kept Mrs Stefanyszyn under increased observation, and dealt with detected variances, as they ought to have done, when she failed to recover as its guideline document envisaged, her death would have been prevented.
13. It is not necessary to outline the various investigations and treatments which could have been pursued. There was no real issue between the experts about the steps which were available to be taken, which would have saved Mrs Stefanyszyn's life.
14. I do consider that the proper inference is that if further contact had been made with Dr Brown on 5 December, he would not have lightly departed from the course he had to that point taken to Mrs Stefanyszyn's treatment, given the view of the experts that he had become fixated on his diagnosis.
15. On the evidence the step which the nursing staff should have taken, if the duty which the Hospital owed Mrs Stefanyszyn had been adhered to, was to call for assistance from the Hospital's medical staff, as they had done on the evening of 3 December when Dr Judd attended her. In that event, on the evidence, she would have received the medical assistance which she required, given the red flag which the ongoing faecal vomiting would have raised for the medical staff, in her circumstances, particularly when considered with her then abnormal oxygen saturation levels. Further, assistance from Hospital medical staff should unarguably have been sought at 4am on 6 December.
16. In the result, I am also satisfied that all of the evidence establishes, on the balance of probabilities that the Hospital's failures did create, or at least increase, the risk of injury which resulted in Mrs Stefanyszyn's death (see Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262 at [107]). Its failures did not give rise to a mere possibility of injury, but actually materially contributed to the death which resulted from both its failures and those of Dr Brown.

Assessment of the Hospital's contribution

1. As Dr Brown properly accepted, in all of the circumstances I have discussed, the more significant failures were his, particularly given the nature of the services he provided Mrs Stefanyszyn. The conclusion reached as to the contribution of the Hospital's failures to her death must also pay regard to the inferences which flow from Dr Brown's failure to give evidence in his case. The Hospital's case that its contribution to Mrs Stefanyszyn's death should be assessed to be as low as 5% cannot, however, be accepted. The inference which must be drawn from its failure to call evidence from relevant witnesses and to produce its own manual also cannot be overlooked in coming to a conclusion as to the extent of its contribution.
2. Bearing all I have earlier discussed in mind, I have concluded that the Hospital's contribution to Mrs Stefanyszyn's death must be assessed to have been 20%. That reflects the evidence as to the degree of departure, both by Dr Brown and the Hospital, from the duty of care which they each independently owed Mrs Stefanyszyn, bearing in mind not only their respective roles, but also the times at which and the circumstances in which they provided her and failed to provide her with their respective services.
3. That is a necessary consideration, given the nature and extent of the respective post-operative care which they provided her and their resulting ability to observe and understand the true nature of Mrs Stefanyszyn's deteriorating condition, particularly at the crucial times on 5 and 6 December. What both the Hospital and Dr Brown were then dealing with was not a mere possibility that Mrs Stefanyszyn would suffer harm, if the cause of her ongoing faecal vomiting and other symptoms were not investigated and treated, but a real risk that she would die if she was left untreated. The Hospital's failures were significantly more involved in causing Mrs Stefanyszyn's death than it was prepared to admit.
4. In the result, the Hospital's case as to its limited contribution to her death, cannot be accepted.

Costs

1. The usual order as to costs is that they follow the event, which in this case would be an order in favour of Dr Brown. If the parties seek a different costs order I will hear them.

Contempt

1. The matter will be listed at 2pm on Friday, 24 June 2016 for consideration to be given to the question of whether the Hospital should be referred to be dealt with for contempt.

Orders

1. For the reasons given, I find in favour for Dr Brown and direct the parties to file agreed orders or to approach to have the matter relisted by 24 June 2016.

Amendments 21 June 2016 - typographical errors in [38] and [98] 24 June 2016 - [145] - deleted words 'and that' in second sentence DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 June 2016