The gall(bladder) of claiming $86 million in damages – Wei Fan v South Eastern Sydney Local Health District (No.2) [2015] NSWSC 1235

Originally Published by Simon Grey on Sunday, September 20, 2015 12:00:00 AM

Author: Simon Grey

Judgment Date: 31st August, 2015

Citation: Wei Fan v South Eastern Sydney Local Health District (No.2) [2015] NSWSC 1235

Jurisdiction: Supreme Court of New South Wales [1]

In brief

• It is appropriate for a hospital to discharge a patient if there is no urgency for surgery and/or the patient's condition is improving.
  
  

• Surgical and diagnostic decisions made by clinicians are assessed in consideration of the clinical evidence available at the time.
  
  

• Witnesses who deliberately tailor their evidence to present their case at its highest value are at risk of the court not accepting their contentious evidence.

Background

An overseas Medicare ineligible patient (the plaintiff) presented to St George Hospital on 20 January 2007 with obstructive jaundice. An investigative endoscopic retrograde cholangiopancreatography (ERCP) procedure was arranged; however the plaintiff requested an operation to remove his gallbladder (a cholecystectomy) instead, which was refused. The plaintiff discharged himself against medical advice on 22 January 2007.

The following day the plaintiff presented to the Prince of Wales Hospital (POWH) and subsequently underwent the ERCP procedure, following which he was discharged on 31 January 2007 with arrangements for a follow up appointment at the outpatient clinic.
On 15 February 2007, the plaintiff attended the surgical outpatient clinic at POWH and was advised to undergo the gallbladder removal surgery however on 22 February 2007 his surgery was deferred for a short period. The surgery took place on 15 March 2007 at Sutherland Hospital.

In the interim, the plaintiff presented to Sutherland Hospital on 8 March 2007 complaining of abdominal pain and bilious vomiting. He discharged himself against medical advice on 9 March 2007 and suffered a fall on his way home.

15 separate allegations of breach of duty were alleged, summarised as follows:

1. A failure to investigate, diagnose and manage type 2 diabetes with no follow up after initial tests were undertaken in January 2007
   
   

2. A failure to properly diagnose and manage the gallbladder condition, including diagnosing the condition as cholecystitis
   
   

3. Delaying a cholecystectomy at various points in time
   
   

4. Wrongly allowing the plaintiff to fall from his hospital bed on 11 March 2007
   
   

5. Discharging the plaintiff from St George Hospital when he was not fit to be discharged
   
   

6. Failing to give the plaintiff information about treatment and costs involved considering his Medicare ineligible status.

The plaintiff claimed $86 million in damages for injuries including exacerbation of type 2 diabetes with complications, progression of cholecystitis, a fractured skull and traumatic brain injury.

Decision

Her Honour Associate Justice Joanne Harrison found that the plaintiff's claims failed on breach and causation and entered judgment in favour of the defendant.

The plaintiff has filed a Notice of Appeal.

Performance of ERCP prior to Cholecystectomy

Her Honour found that it was appropriate for St George Hospital to decline to perform a cholecystectomy without the plaintiff first undergoing an ERCP.

Diagnoses

In finding that the ERCP was appropriate, her Honour considered that the diagnosis of cholangitis (bile duct infection) rather than cholecystitis (inflammation of the gallbladder) made on 22 January 2007 was appropriate. Her Honour specifically did not make a finding that the plaintiff should have been diagnosed and treated for diabetes.

Her Honour also considered that as at 15 March 2007 the plaintiff was appropriately diagnosed with chronic (as opposed to acute) cholecystitis.

Discharge from St George Hospital

Her Honour accepted that the plaintiff was suitable to be discharged after the ERCP on the basis of improving jaundice and improving liver function tests.

Her Honour accepted that as at 15 February 2007, it was appropriate practice for the cholecystectomy to be deemed non urgent and it remained safe to put off surgery for a short period.

Discharge from Sutherland Hospital and fall

Her Honour found that on 9 March 2007, the plaintiff discharged himself as he did not want to pay for the hospital admission. Accordingly, her Honour found that the hospital was not liable for the fall that the plaintiff had when getting out of a taxi on his trip home following this discharge.

Credit

Her Honour found that the plaintiff and his wife, who both gave evidence at the hearing, were deliberately tailoring their evidence to present the plaintiff's case at its highest value, and therefore chose not to accept any evidence from them that was contentious and inconsistent with contemporaneous medical records.

Implications

This case serves as a reminder that deferring medical intervention in circumstances where further investigations are warranted or where there is no clinical urgency may be appropriate practice.

It also serves as a reminder that a determination as to the appropriateness of surgical and diagnostic decisions must be made in consideration of the medical evidence available at the time. This was most apparent in her Honour's findings that performing an initial ERCP was appropriate with reference to available ultrasound findings, and that the plaintiff should not have been diagnosed with diabetes with reference to available blood sugar levels as at January 2007.

1. Associate Justice Joanne Harrison.