A young boy, who developed gangrene following an open fracture to his left thumb and ultimately had his thumb amputated, has had his judgment against the hospital overturned on appeal, with the Supreme Court of New South Wales Court of Appeal finding that the claim be dismissed under s 5O of the Civil Liability Act 2002 (NSW).
Background
On 22 August 2011, then eight-year-old Robert Gould presented in the emergency department at Campbelltown Hospital with an open fracture to his left thumb after he fell on a wet floor.
Robert was transferred by ambulance to Liverpool Hospital, arriving shortly after 8 pm. A doctor examined him at around 10.30 pm. There were two more serious cases which required surgery that evening and as a result, Robert underwent surgery the following morning at around 8.30 am. He was discharged the following day. However, gangrene developed in Robert’s thumb leading to its amputation on 15 September 2011.
Court proceedings
Robert commenced proceedings in the District Court of New South Wales against the South Western Sydney Local Health District (“the hospital”), in negligence and claimed damages. The primary judge found in favour of Robert, that the hospital failed to use an appropriate antibiotic regime, which caused the infection which led to the loss of Robert’s thumb, and awarded damages in the total sum of $240,930.
On appeal
The hospital appealed the primary judge’s findings. The main issues raised on appeal, as to breach of duty and causation, was the choice of antibiotics administered to Robert; how he presented at the hospital, whether there was a widely accepted peer professional opinion about administering antibiotics in such a case, and whether the primary judge erred in finding that the amputation was caused by infection, as opposed to ischaemia (loss of blood to the digit).
The court found that there was evidence that the hospital acted in a manner that was widely accepted in Australia by peer professional opinion as competent professional practice, and the claim dismissed under s 5O of the Civil Liability Act.
Accordingly, the court upheld the hospital’s appeal: South Western Sydney Local Health District v Gould [2018] NSWCA 69.
For more information on the above contact Joe Bonura on (02) 4626 5077 or jbonura@marsdens.net.au.
This article first appeared in the CCH Australian Tort, Personal Injury, Health and Medical Law Tracker and is reproduced in full with permission from CCH, a division of Wolters Kluwer Australia: www.wolterskluwer.cch.com.au
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