The duty of care owed by a hospital is independent and non-delegable: what this means in practice

As you know June was a busy month for the NSW Supreme Court with several decisions delivered that are of interest to those in the medical indemnity industry. Justice Schmidt decision in Mace v Justice Health; Geo Group v Vero was of particular interest for the manner in which the Court interpreted the insuring clause of the Medical Malpractice Civil Liability Policy. In Stefanyszyn v Brown; Brown and Newcastle Private Hospital her Honour outlined the fundamentally different legal nature of the duties of care owed by medical practitioner and hospitals. The impact of strategic decisions as to whether to lead certain evidence is also seen clearly with her Honour drawing certain Jones v Dunkel inferences when apportioning liability.

Mrs Stefanyszyn was admitted to Newcastle Private Hospital by Dr Brown for a hysterectomy. Due to a surgical error suture material was inadvertenly looped around Mrs Stefanyszyn’s bowel causing an obstruction. Tragically the error was not detected despite Mrs Stefanyszyn’s deteriorating postoperative condition. She developed an infection, inhaled faecal material which she was repeatedly vomitting, developed pneumonia and suffered a fatal cardiac arrest. A tragic outcome which the experts agreed could have been avoided if the cause of her symptoms had been investigated earlier.

Dr Brown settled the Compensation to Relatives and nervous shocks claims brought by Mrs Stefanszyn’s family. This judgment relates solely to Dr Brown’s cross claim seeking contribution from Newcastle Private Hospital. Dr Brown considered that the Hospital should be apportioned 33% liability, whereas the Hospital considered its contribution was limited to 5%.

Schmidt J apportioned 20% liability to the Hospital.

The Hospital argued that its duty was to assist Dr Brown in the management of Mrs Stefanszyn’s treatment and that at certain points the “burden or responsibility” for Mrs Stefanyszyn’s deteriorating condition “passed” from the Hospital to Dr Brown. The submission was rejected by her Honour as wrong in law.

Justice Schmidt reiterated that a duty owed by a Hospital was an independent non-delegable duty and could not “pass” to Dr Brown, nor could the duty be  subsumed by any breach of the independent duty of care which Dr Brown owed to Mrs Stefanszyn.

“While Dr Brown and the Hospital 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”

Justice Schmidt describes in detail the evidence which she relied upon when apportioning liability to the Hospital and, while obviously dependant upon the facts of this particular case, it is well worth reviewing when considering the types of matters that the Courts will take into account. Her Honour not only considered the failure of nursing staff to adequately take and record patient observations, but also the failure of the staff to follow its own systems contained in Clinical Pathways Guidelines and the failure of staff to raise concerns about the diagnosis of the treating doctor. The Hospital did not call any witnesses to give evidence and did not provide any explanation for why the Clinical Pathway Guidelines document was not produced under subpoena. As a result her Honour inferred that that evidence would not have assisted the Hospital. It should however be noted that Dr Brown similarly did not give evidence.

Of particular interest was the experts’ recognition, and her Honour’s agreement, that there comes a time when a hospital’s independent duty to a patient may require it to take steps to intervene in the care being provided by a doctor:

“…. 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”

A strong reminder indeed for organisations that the independent, non delegable duty of care owed to a patient requires vigilant compliance with internal guidelines and systems and being prepared to intervene if that are any concerns in relation to a patient’s care.

If you have any questions in relation to the duty of care owed by a health institution please contact Principal Julie Somerville.

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