Denise Ives v Australian Capital Territory and Dr John Desmond Hehir [1995] ACTSC 140 (8 December 1995)

SUPREME COURT OF THE ACT

DENISE IVES v. AUSTRALIAN CAPITAL TERRITORY and DR JOHN DESMOND HEHIR
No. SC 451 of 1995
Number of pages - 9
Limitation of Action

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
HIGGINS J

CATCHWORDS

Limitation of Action - X-ray uncovered embedded needle in heart - hospital procedure - carrying out needle counts - whether just and reasonable to extend time bar - whether just and reasonable to extend time in respect of one only of a number of joint or several tort feasors - consideration given to the apparent strength of claim - prejudice created by lack of available insurance cover.

Limitation Act 1985 (ACT), s36
S and B Pty Ltd v Podobnik [1994] FCA 1433; (1994) 53 FCR 380

HEARING

CANBERRA, 20 October 1995
8:12:1995

Counsel for the applicant : Mr R Thomas

Instructing solicitors : Pappas, J - Attorney

Counsel for the first respondent : Mr G Lunney

Instructing solicitors : ACT Government Solicitor

Counsel for the second respondent : Mr W Arthur

Instructing solicitors : Blake Dawson Waldron

ORDER

THE COURT ORDERS THAT:
1. Time for proceeding against the first respondent for
damages for personal injury sustained in or about March 1974
be extended until the expiry of seven days from the date
hereof.
2. The application otherwise be refused.

DECISION

HIGGINS J On 14 July 1995, the applicant filed a Notice of Motion seeking "leave" pursuant to section 36 of the Limitation Act 1985 (ACT) (the Limitation Act) to commence proceedings for damages for personal injury against the Commonwealth of Australia and the second respondent. The injury was alleged to have been sustained on 11 March 1974.

2. On 26 July 1995, the applicant sought to substitute the present first respondent for the Commonwealth. The need for that is a consequence of the Self-Government legislation. That order was made by the Master on 4 August 1995.

3. The applicant deposed that on 11 March 1974 she was admitted to Royal Canberra Hospital. An emergency hysterectomy operation was conducted by the second respondent. The operation was apparently successful. She was not aware of any possible untoward event until 11 October 1994.

4. On that day she underwent a chest and spinal X-ray. The chest X-ray revealed (per Dr E A Carter, FRACR),

A linear almost metallic density is seen in relation to the
cardiac silhouette on both the PA and lateral views,
approximately at the level of the intraventricular septum ?right
ventricle. No sternal sutures are noted and the appearance is
unlike any known surgical implant or suture material. Certainly
on the lateral view it almost has the appearance of a broken
needle. Is there any clinical history which correlates?
She indicates no history of cardiac or chest surgery or
intervention and no history of trauma particularly with needles.
The appearances are suspicious for migration of a needle via
venous access to the right heart.
The lungs and pleural recesses appear clear.
Further assessment of the position of this metallic material
could be performed with either echocardiography or CT. A chest
CT has been arranged following discussion with Dr Bishop.

5. Shortly thereafter, a CT scan was conducted by Dr Carter. He reported on 17 October 1994 as follows,

A metallic radio-opaque foreign body is confirmed within the
heart and is localised to the interventricular septum extending
vertically from the region of the membranous septum inferiorly
into the muscular septum. It is difficult to ascertain whether
it is closer to the left or right ventricular chamber, secondary
to much star artefact, caused by the density of the foreign body
but it lies at the junction of the anterior one third and
posterior two thirds of the interventricular septum.

6. Further investigation by way of echocardiography was conducted on 14 October 1994. Dr McGill, consultant cardiologist, obtained a history that in 1974 the applicant had an emergency hysterectomy. Shortly before 1974 she had an adrenalin administration by injection into the chest, and in 1984, an ovarian cyst was removed.

7. Dr McGill reported that it would not be appropriate to remove the foreign body. It appeared likely to have been in the same place for 20 years. Nevertheless, the presence of that foreign body was an understandable source of anxiety for the applicant.

8. Dr Phillip Spratt, cardiothoracic surgeon, identified the object as a "needle". It appeared, he said, to be "extremely long and obviously being (sic) fractured in two places".

9. He concurred with Dr McGill's opinion that the safest course was not to attempt removal of the needle but to check that the needle remained immobile by means of annual scans.

10. The applicant has, since learning of the needle in her heart, become depressed and anxious. If the needle starts to move, notwithstanding medical opinion that such movement is not likely to occur, serious and life-threatening open heart surgery will be required.

11. The second respondent is an obstetrician and gynaecologist. He has practised as such in the Australian Capital Territory since 1960. After consulting such records as were available to him, he concluded that he had conducted an hysterectomy on the applicant between 11.15am and 12.30pm on 12 March 1974.

12. As the operation was performed the day following the applicant's admission, it was, in the second respondent's view, not such a dire emergency as to require immediate intervention. Although described as an 'emergency', it would not have been a 'rushed' procedure.

13. The records did not reveal any complication or unusual event occurring during the surgery. The skin incision was closed with staples, not a straight needle. Suture needles were used in the course of the operation but they were curved not straight. It was standard practice for all needles to be counted at the conclusion of the operation and to check them off against the record of those used. This was done on a whiteboard by a nurse. There was no record of a needle having gone missing or having broken. If there had been, it would have been regarded as a serious event. There was, however, no record of the needle check kept. It was not, in 1974, the practice to keep such a record in permanent form.

14. Following the operation, a redivac drain was inserted. It was removed on 16 March 1974. The usual practice for the second respondent would have been to have used a curved suture needle but, as he deposed,

... a suture on a straight needle could have been used to secure
the drain, but any breakages of the needle would have been
obvious at that time ...

15. It was possible that a straight needle could have been inserted into a vein for blood collection purposes. The records indicated to the second respondent that a blood transfusion was carried out on the applicant on 16 March 1974.

16. The second respondent also carried out the ovarian cyst removal in 1984. Again, only curved suture needles were used. The needle count was expressly recorded as correct. That record remained on the hospital file. There was, he said, in any event, no way a curved needle could migrate via a vein to the heart. It would jam or protrude.

17. Having seen the curved suture needle adduced in evidence in these proceedings, it seems to me that opinion is soundly based.

18. The second respondent has looked at the X-ray of the foreign body. In his opinion,

... it appears to have a linear shape and therefore could not be
a curved suture needle of the kind used by me during abdominal
surgery. The needle appears to be a thin needle, possibly of
the kind used to give an injection.

19. It was the second respondent's opinion that a likely source of the needle was the intracardiac adrenalin injection noted by Dr Bishop, the applicant's general practitioner, to have been administered about 1971. That injection was not given by the second respondent. It does not seem to have been given in any of the Territory's hospitals. There is no evidence, therefore, that, if the adrenalin injection was the source of the broken needle, either respondent was responsible for it.

20. The second respondent also deposes that his insurance broker has no current record of insurance cover between 1960 and 1985, although he has cheque butt records of payments of premiums.

21. Ms Mary Hall, a nurse who routinely assisted the second respondent, confirmed the second respondent's account of the usual practice in 1974 concerning the use of and accounting for suture needles.

22. A further examination of the foreign body was undertaken in September 1995 by Dr Robert J Scott, an occupational physician. He described the object as,

... a radio-opaque object (some 3.5cm long and 1mm thick), lying
at an angle of approximately 45 degrees ... the foreign body has the
characteristics of being consistent with a needle - ie at the
superior end it has an eyelet, and at the inferior end it is
pointed. It is entirely in keeping with being a straight
surgical suture needle.
I also note that in its lower half it has 2 fractures, each held
together (possibly by chemical or biological action).

23. It will be apparent that, if Dr Scott's observations are correct, none of the cannular needles used to give injections to or collect bodily samples from the applicant could be the source of the foreign body in the applicant's heart.

24. It is also apparent that, if in any operation a needle had been left in the applicant's body, a conclusion that the usual processes had not been followed would be inevitable. It would be powerful evidence of negligence on the part of some person or persons involved in the operative procedure in question.

25. Dr Robert Allen, Director of Medical Imaging at the Woden Valley Hospital, viewed the relevant investigative reports on behalf of the second respondent. Dr Allen concluded,

there is a needle-like foreign body probably within the right
ventricle of the heart;
the foreign body is slightly angled at one point which suggests
that it is fractured;
the density of the object is not the same throughout its entire
length indicating partial electrolytic destruction;
there is a suggestion of one or two holes through its proximal
portion which could be the eye of a needle or the result of
partial electrolytic destruction.

26. Dr Allen also deposed that a straight suture needle would usually have been 50mm in length. He could not explain how the needle in question, whatever its source, could have got to where it was found.

27. It is clear that it is arguable that the broken needle found in the applicant's heart was a straight suture needle. There is no real support for the hypothesis that it was a hollow needle or a curved needle. The breaks in it are not inconsistent with its original length having been 50mm, again consistent with it having been a straight suture needle. The only possible source, amongst those so far advanced, is a procedure associated with the operative procedure in March 1974.

28. The provisions of s36 of the Limitation Act were recently considered by a Full Court of the Federal Court in S and B Pty Ltd v Podobnik [1994] FCA 1433; (1994) 53 FCR 380. The applicant must show that it is "just and reasonable" to extend the period within which an action of the kind contemplated by the applicant may be brought, see s36(2).

29. That is a discretionary judgment, but the court is directed to have regard to the matters enumerated in s36(3). Although the section does not expressly say so, it seems obvious to me that a circumstance might arise where it is "just and reasonable" to extend time in respect of one of a number of joint or several tort feasors but not another.

30. I turn to the specific matters enumerated in s36(3).

31. Length of and reason for delay on the part of the plaintiff
The length of delay is extremely long but the applicant was not aware of her injury until October 1994. Between that time and 14 July 1995, when this application was made, there was no unreasonable delay having regard to the need to identify the object in question and to endeavour to determine its origin.

Prejudice to the defendant
32. There is clear evidence of prejudice to the second respondent by virtue of doubt about his insurance cover. At the very least he would have difficulty in establishing a right to cover.

33. The first respondent suffers no such disadvantage.

34. Neither respondent is, to my mind, relevantly particularly prejudiced by the lapse of time since March 1974 otherwise.

35. In the nature of the case, no person has or would have had any clear recollection of leaving a needle in the applicant's body. Had it been discovered, even within a few months of the operation in March 1974, no nurse or doctor would have been better then able to account for the presence of the needle in the applicant's body. The only difference is that there would have been fewer possibilities for later insertion. That consideration benefits the respondents rather than the applicant.

36. Nevertheless, delay inevitably creates some degree of potential prejudice.

Conduct of the defendant(s) contributing to the delay
37. Whilst nothing either of the respondents did subsequent to the operation and the applicant's discharge from hospital was directed to concealing relevant facts from the applicant, the nature of the alleged tortious event is such that the applicant could not know of it until the needle either caused harm directly or was discovered fortuitously, as happened in October 1994.

Duration of disability
38. Usually the circumstances favourable to a plaintiff under this heading will involve an apparently temporary disability which later worsens. The present situation, though unusual, is favourable to a plaintiff seeking extension of time. The applicant could not reasonably have been aware of her disability until the presence of the needle was discovered.

Prompt action by the plaintiff
39. There can be no valid criticism of the applicant under this sub-paragraph. She and her advisers acted promptly and with due notice to the respondents. She sought all reasonable medical and legal advice in a timely fashion.

Step taken by the plaintiff to obtain prompt advice
40. I refer to (e) above.

41. It will be apparent from the above that if it was seriously open to conclude that a suture needle was introduced into the applicant's body in or in the aftermath of the operation in March 1974, then, subject to considerations of prejudice to a defendant, it would be strongly arguable that it was "just and reasonable" to extend time so as to enable the applicant to sue the party or parties responsible.

42. It was submitted by the respondents that the applicant had not demonstrated a prima facie or, at least, seriously arguable case on liability.

43. In S and B Pty Ltd v Podobnik (supra), 386, Gallop J observed,

There is no provision in s36 expressly requiring the prospects
of success to be taken into account, but in the prefatory words
of s36(3), a court shall have regard to all the circumstances
including the enumerated criteria. In those circumstances I
would not be prepared to conclude that his Honour was wrong to
make some assessment of Mrs Podobnik's prospects of success.

44. He did not conclude that the applicant in that case had a strong case but made the point that, though not strong, it was not hopeless.

45. Neaves J, in the same case, considered that there was no material as to the "apparent strength" of the applicant's claim. However, his Honour did not conclude that the prima facie strength of an applicant's case was irrelevant. Of course, a view about the apparent strength of an applicant's case must be provisional. It assumes the apparently available evidence was forthcoming and interpreted most favourably to the applicant. It seems to me that it would be less just and reasonable to refuse a plaintiff the opportunity to prosecute an apparently strong case than an apparently weak case. A fortiori, if the plaintiff's case appeared hopeless, even after all due allowance for the provisional nature of the apparently available evidence, it would not be appropriate to extend time even if there would otherwise be a strong case for doing so.

46. So far as the present case is concerned, the applicant's case must rely on the hypothesis that it was reasonably open to conclude that the needle in question was left in her body following the operation on 12 March 1974.

47. It is most likely that the needle was, and is, straight. It could have been a straight suture needle. It could not have been a curved suture needle. It could not have been inserted in the course of the 12 March operation. The only possible use in that operation of a straight suture needle was in securing, resecuring or removing the redivac drainage tube.

48. It is not clear whether, if that needle was somehow left in the applicant's body, the second respondent would be responsible for that. It might have been a member of the nursing staff or of the resident medical staff. It, therefore, is less likely that there could be a finding of liability against the second respondent than against the first respondent. His statement at paragraph 8 of his affidavit of 30 August 1995 seems to support the view that if he personally secured the redivac tube and no-one else did then, or subsequently, it is more likely that a curved suture needle would have been used.

49. As the person assuming liability for the role of hospital staff, liability could be found against the second respondent without the need to identify the particular employee responsible for using a straight needle to secure the redivac tube or, at least, for not ensuring that it was not left in the applicant's body.

50. It is extremely unlikely that the needle was cannular. Only the second respondent fails to rule that possibility out.

51. The only other hypothesis suggested for the presence of the needle was that it was a sewing needle or the like. There was, however, no reasonable likelihood that, if the applicant had swallowed, stepped on or otherwise had an ordinary sewing needle enter her body, she would have failed to notice it. It is only feasible to assume that the needle was introduced in the course of some medical procedure. The only such procedure thus far identified is the insertion or refixing or removing of the redivac drain. The case for that hypothesis is not a strong one but it is not hopeless. It seems more credible, on the evidence so far available, than any other hypothesis so far suggested.

52. So far as the second respondent is concerned, however, there is an additional consideration. If not hopeless, the case against him has less strength than that against the first respondent. Further, the prejudice created by the lack of, or uncertainty concerning, insurance cover is such as to persuade me that the applicant has failed to show that it is just and reasonable to extend time so as to enable action now to be brought against him.

53. The first respondent is not prejudiced in the same way. It is inevitable, of course, that there would be some prejudice arising from lapse of time, but it is not sufficient as to cause me to conclude that a finding that it is just and reasonable to extend time to enable the applicant to commence the proposed proceedings should not be made.

54. The critical point, to my mind, is whether the case against the first respondent is sufficiently credible to warrant the extension of time sought. In this regard, the only possible hypotheses so far capable of formulation seem to have been suggested. All except that involving a straight suture needle are highly improbable without an assumption that new facts or evidence will emerge.

55. It follows that it is possible that a verdict could be found for the applicant against the first respondent. As otherwise the applicant has persuaded me that it would be just and reasonable to extend time for bringing proceedings against the first respondent, I grant the application accordingly.

56. I will hear the parties as to costs.