Munday v Australian Capital Territory Health and Community Care Service & Anor [2004] ACTSC 134 (20 December 2004)

Last Updated: 31 January 2005

LEONARD GEORGE MUNDAY v AUSTRALIAN CAPITAL TERRITORY

HEALTH AND COMMUNITY CARE SERVICE & ANOR [2004]

ACTSC 134 (20 December 2004)

NEGLIGENCE - medical negligence - failure to take swab - failure to properly explore and drain puncture wound - failure to detect Pseudomonas leading to bone damage - failure to institute early effective treatment regime - failure to adequately warn plaintiff of risks.

NEGLIGENCE - contributory negligence - diabetic - plaintiff's insistence on early discharge - plaintiff's refusal to return to hospital despite worsening symptoms.

DAMAGES - pain and suffering - ongoing treatment - unpaid assistance - out of pocket expenses.

Kalokerinos v Burnett (unreported, Supreme Court of NSW Court of Appeal, 1 November 1995, 30 January 1996)

Leonard George Munday v ACT [1998] SCACT 62 (8 July 1998); [1999] ACTSC 8 (23 February 1999); [1999] ACTSC 75 (13 July 1999)

No. SC 775 of 2000

Judge: Higgins CJ

Supreme Court of the ACT

Date: 20 December 2004

IN THE SUPREME COURT OF THE )

) No. SC 775 of 2000

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: LEONARD GEORGE MUNDAY

Plaintiff

AND: THE AUSTRALIAN CAPITAL TERRITORY HEALTH AND COMMUNITY CARE SERVICE

Defendant

AND: DIARMID MCKEOWN

Third Party

ORDER

Judge: Higgins CJ

Date: 20 December 2004

Place: Canberra

THE COURT ORDERS THAT:

1. there be judgment for the plaintiff in the sum of $146,000.

Background

1. The plaintiff is now 59 years of age (date of birth 4 August, 1945). He is and has been since 1981 an invalid pensioner. He suffered a variety of disabilities, lung disease, depression, hypertension, diabetes, and arthritis and relevantly for present purposes plantar fasciitis affecting the left foot.

2. As at 1997 the plaintiff nevertheless led a relatively active life. He was an enthusiastic scavenger (see Leonard George Munday v ACT [1998] SCACT 62

(8 July 1998); [1999] ACTSC 8 (23 February 1999); [1999] ACTSC 75 (13 July 1999) and angler. He had also taken an active interest in local politics.

3. The problems, which are the subject of the present proceedings, commenced on

11 October 1997. The plaintiff was helping a fellow scavenger, who was seriously ill, by tidying up his backyard. There was long grass concealing a detached fence paling. The plaintiff stepped on it impaling his right foot on a nail. The wound was about the level of the fourth toe and quite deep. The plaintiff carried on, shrugging the injury off as minor.

4. The next morning the foot was painful and swollen. The plaintiff attended his General Practitioner, Dr Dillon but was seen by a locum in his absence. Some treatment was prescribed. An X-ray was ordered.

5. The next day (13 October 1997) it was noted that there was "obvious cellulitis". Antibiotics, rest and elevation were prescribed.

6. On 14 October 1997 the foot was worse. The locum admitted the plaintiff to hospital for an intravenous antibiotic drip. His advice was that the plaintiff should remain in hospital but the plaintiff declined that advice. He had a friend's funeral to attend on the Saturday. On the Thursday (16 October 1997) the plaintiff was launching his campaign for membership of the ACT Legislative Assembly.

7. The plaintiff stayed 24 hours. Thereafter, at his insistence, the treating doctor agreed he could be released and attend his GP for antibiotic injections 6 hourly. If, after Saturday, the foot was no better, he was to return to the hospital.

8. The plaintiff did receive injections. On 15 October 1997 he rested in bed with the foot up. The cellulitis was painful. He attended his campaign launch on 16 October 1997, a sausage sizzle.

9. He deposed that he was not warned that it may be harmful to his health to discharge himself. In fact, there is no such warning recording on the plaintiff's discharge forms.

10. The funeral was on the morning of 18 October 1997. The antibiotic injections seemed not to have improved the state of the plaintiff's foot. He returned to the GP after the funeral and was re-admitted to hospital as an in-patient.

11. Treatment was immediately commenced with tablets and further injections. Intravenous antibiotics recommenced.

12. The plaintiff was seen by the second defendant on Monday 20 October 1997. The next day an ultrasound was performed.

13. The ultrasound reports indicated, as Dr McKeown, the third party, later told the plaintiff, an abscess in the foot. It overlay the head of the fourth metatarsal. The radiologist pointed to a collection of matter between the bone and extensor tendon and raised the possibility of underlying bony involvement (i.e. osteomyelitis) and recommended a bone scan. On the corresponding plantar aspect (i.e. the sole) of the foot there was evidence of a phlegmon (i.e. an acute suppurative inflammation affecting the subcutaneous connective tissue). That indicated a further site for an abscess to develop. There is no record of a bone scan being then conducted.

14. On 22 October 1997 (Wednesday), Dr McKeown lanced and cleared the foot under general anaesthetic. It was noted that serous fluid was drained through an open wound on the dorsum (i.e. the upper outer aspect) of the plaintiff's right foot overlaying the head of the fourth metatarsal.

15. It appears that no fluid was taken for culture and testing on this occasion. There had been a sample taken on 18 October 1997 but it displayed no growth after two days incubation. It was noted that the plaintiff was diabetic and that this required additional care in relation to infection control.

16. On 23 October 1997, it was noted that the wound was clear. It was packed with gauze and "nil ooze" was recorded. The plaintiff was still in considerable pain.

17. He commenced mobilisation on crutches on 24 October 1997. He was discharged on 27 October 1997. He was offered, it is noted, the services of a community nurse but "refused...adamant his wife [would] attend".

18. The plaintiff was advised to follow up with his G.P. He did so. Indeed, the foot remained swollen and very painful. It was so painful, the plaintiff says, that he protested that he was too sick to be discharged.

19. He was told, he said, "You'll have to go home. We want the bed". The notes do not record any protest by the plaintiff at his discharge but do not suggest it was at his request. It is indicated that Dr McKeown advised the discharge. There was a curious note - "Diabetic foot injection inadequately treated as patient was not prepared to remain in hospital last week"

20. It appears that Dr Dillon made an enquiry as to "biopsy" results. There were of course, none. It is noted by Dr Dillon that he saw the plaintiff on 29 October 1997 (Wednesday). A CAT scan done that day revealed bony destruction at the head of the fourth metatarsal, consistent with osteomyelitis and abscess. He was re-admitted to hospital on 30 October 1997.

21. On 1 November 1997, Dr McNicol (not Dr McKeown as Dr Long notes) operated to remove damaged bone. On 4 November 1997, Professor Collignon (Microbiology and Infections Diseases) noted that a culture taken then had revealed the organism pseudomonas aeruginosa and prescribed appropriate antibiotics.

22. At discharge on 15 November 1997, the plaintiff's foot remained painful. He could not walk unaided. Antibiotic treatment continued until 15 December 1997 but needed to be resumed because of swelling.

23. X-rays of the foot indicated widespread arthritis, though no abscess formation or osteomyelitis was present. The continuing pain and change of gait has been disabling, requiring use of walking aids.

24. There was a further operation performed by Dr McNicol on 17 December 1998 to cut further bone away. A few months later, pain not having abated, a further operation was recommended including the insertion of screws. By this time, the plaintiff had had enough. He declined the operation.

25. The pain continued unrelentingly, eased by analgesics.

26. In December 2001 there was a further complication. The plaintiff's right knee locked up. Dr Stubbs (orthopaedic surgeon) was engaged. He advised a knee replacement. That was finally done on 25 July 2002. The operation was very painful and the plaintiff could not stand or walk for many months.

27. In January 2003 Dr Leicester, who referred him for pain management, assessed the plaintiff. On 4 March 2003 the plaintiff was assessed at Canberra Hospital. He later saw Dr Salmon at Bowral.

"The knee has been somewhat, though temporarily, relieved by manipulation but it and the right foot remain significantly disabled and painful. The plaintiff's mobility is greatly reduced. He uses walking sticks (Canadian crutches) to get about. He takes heavy doses of analgesics during the day. He feels very depressed."

28. It did emerge from medical notes, highlighted in cross-examination by Ms Walker for the defendants, that the plaintiff, amongst his multiple disabilities, had, at least from January 1989, arthritis in the ankle and knees, involving the right foot. In March 1994 he had complained of bilateral pain and in 1995 pain in both feet.

29. In is clear that the plaintiff's feet and legs were not in good shape before he trod on the nail, though there is little doubt he is much worse since.

30. It was suggested to Mr Munday, the plaintiff, that he had compounded his difficulties by refusing an attempt by Ms Jill Dexter, of the nursing staff, to persuade him to stay beyond 24 hours after his admission to hospital on 14 October 1997.

31. The plaintiff did not agree that he was urged to stay, though he agreed that Ms Dexter had suggested "Hospital in the Home", a program whereby hospital staff visit the patient at home. The plaintiff agreed he refused that offer, as he did not want them in his home. He asserted that he was given and used the antibiotic injections, which were supplied to him.

32. It is, however, apparent that the plaintiff's commitments after 15 October 1997 up to 19 October 1997 resulted in less than ideal rest and foot elevation.

33. The plaintiff's wife, Frances Helen Munday, gave evidence. I have no doubt that she was a truthful witness, as indeed I found the plaintiff to be. That does not, of course, eliminate the possibility of error due to incomplete recollection or otherwise.

34. It was her recollection that, although, between 15 October 1997, and 18 October 1997 the plaintiff did attend his campaign launch and the funeral, he sat most of the time.

35. Since his hospitalisation in 1997 she reports that the plaintiff has lost interest in plants, cooking, training dogs and looking after chickens. He has required extra care and attention with his feet and medication. He can walk around the yard and tidy up. He can cook at a barbeque if he sits down for it.

Dr Robert William Baird, Revised Clinical notes

36. Dr Baird, in his revised clinical notes, agreed that Keflex and Fasigen as prescribed would not be effective against Pseudomonas.

37. When re-admitted the plaintiff was put on three medications: flucloxacillin, metronidazole and gentamicin - that was, Dr Baird opined, "a good antibiotic choice".

38. On 22 October, Dr McKeown operated. Dr Baird was asked:

"...if a swab had been taken at that drainage operation, on the balance of probabilities what would you have expected to be the result of culturing that material?"

He replied:

"From what I've read of the notes, and given there was a fair collection there and some pus was released, normally you would have expected [to] grow the Pseudomonas that was subsequently grown".

39. He considered it likely that Pseudomonas could have been detected on 22 October even though Gentamicin would have killed any Pseudomonas it could reach. It was, after all, still present later on 4 November 1997.

40. Professor Collignon's treatment, he stated, was, on and from 4 November 1997, entirely appropriate and effective.

41. As to the effect on the plaintiff's treatment of earlier detection of the Pseudomonas on the development of the osteomyelitis leading to bone damage, Dr Baird said:

"That's ... impossible to say accurately. One thing you can say is that he is a diabetic, so he certainly had a lower resistance to infection. And one rule in treating diabetics is their infections need to be treated as serious and treated vigorously. That's the principle that's always been handed down in the antibiotic guidelines. And often the infection is needed to be debrided. So early aggressive treatment would have given a much better chance of avoiding osteomyelitis, but I would be - it would be hard to say a percentage figure. Certainly, the earlier the appropriate antibiotics were started, the less likely osteomyelitis would have been to be present".

42. Asked "what if" the treatment had started 24 to 48 hours after the drainage procedure, Dr Baird replied:

"I think that could probably be helped by the person who did the debridement giving an impression of the tissues and the bone. If they were seen to be clean and non-infected, then such treatment, you could assume, would probably have stopped osteomyelitis occurring. If at the time of that debridement the bone or tissues looked to be infected and possibly already early osteomyelitis enclosed (sic) that infection, the treatment suggested by Professor Collignon, if started earlier, would have certainly controlled the osteomyelitis and made it less - made it far less extensive".

43. He also emphasised, in cross-examination, that there was a two week lag, usually, between injury and bone infection, if it should occur. And, further, that visualisation of the affected structure by the surgeon would give the best guide to the presence of infection.

Ms Jill Elizabeth Dexter, Registered Nurse

44. She had recorded that Mr Munday had wanted to go home. He was advised to keep his foot rested and elevated. He was offered the assistance of a community nurse or hospital in the home, however, there was nothing in the documentation to indicate that the plaintiff was being discharged contrary to medical advice.

Dr Diarmid McKeown

45. He was a specialist surgeon, employed as a visiting medical officer to treat public patients. He attended the plaintiff on 18 October 1997.

46. An ultrasound was done on 21 October. He was started on antibiotics including Gentamicin. On 21 October it was up to therapeutic levels.

47. An ultrasound was done on 21 October to prepare for an operation on 22 October 1997. He carried out an incision over the fourth metatarso-phalangeal joint and drained some serous type fluid. That he described as:

"...just a clear watery type fluid, not particularly abscess fluid. So there was no frank abscess found. There was just a small amount of clear fluid which was in actual fact mixed up with a fair bit of blood from making the incision"

48. He did collect blood for culture on 18 October 1997, but no organism was able to be grown.

49. A report was made to Dr McKeown of the location of the abscess:

"...between the bone and the external tendon and in the view of this location underlying osteomyelitis may need to be further excluded with a bone scan.

50. Dr McKeown did not act on that advice because:

"...a bone scan would have taken at least 24 to 48 hours to both complete and be reported on and secondly the patient was developing [an] increase in pain, temperature and signs of an abscess formation, confirmed partly by the ultrasound, saying that he was developing signs which required immediate drainage rather than waiting for an ultrasound which - and a bone scan which they (sic-may) have given some help in diagnosing but may not confirm the diagnosis."

51. Whilst entering by a small incision from the top of the foot, Dr McKeown said:

"...I was able then to probe into the joint and through the previous penetrating wound on the plantar aspect, the bottom of the foot. So I actually explored from the top of the foot right through to the bottom and irrigated that area."

52. He could not, however, see into the joint of the foot;

"... to get a really adequate view of that you would need a fairly extensive incision which is not really indicated unless you have a definite diagnosis..."

53. He agreed he had not attempted to take a swab albeit that there were "quite marked" signs of infection present. No signs of osteomyelitis were observed but, of course, there had been no exposure of the joint sufficient to ascertain whether there were or not.

54. He decided to stop Gentamicin on 24 or 25 October. There had been a drop in temperature and pain levels. He felt it was sufficient for the plaintiff to continue with oral antibiotics.

55. In cross-examination, Dr McKeown agreed that he was aware of the risk of "sneaker osteomyelitis" as a complication, involving pseudomonas, of the type of injury the plaintiff sustained, though his symptoms at the time were not typical of the presence of that infection, albeit that on 22 October 1997 there was an increase in temperature indicative of infection. It was conceded by Dr McKeown that, by that date, it was apparent that the previous treatments had not been working. It was, he agreed, "the most important thing...to identify the infecting agent - if possible". Further, it was "standard procedure", for that reason, to obtain a swab. However, he explained, he could not find sufficient material for "a suitable swab result".

56. It was not suggested by Dr McKeown that he attempted to obtain such material.

57. Mr Crowe SC, for the plaintiff, made the point that, if a swab was important to Dr McKeown at the time, he would have noted that it had not been possible to obtain a swab but there was no post-operative note to that effect.

58. Dr McKeown further asserted that the entry wound of the nail was still open and that he explored it with a probe and that the wound was irrigated from top to bottom. Again, there was no note recording that he had performed that action.

59. It was, Dr McKeown said, more likely that the osteomyelitis would have been avoided and surgery unnecessary had the plaintiff remained in hospital and been given early treatment with Gentamicin. However, by the time the procedure of 22 October was carried out, it was Dr McKeown's opinion that surgery was "almost certain" even had a swab then been taken and revealed pseudomonas after culture.

60. There was an inquiry into the plaintiff's treatment by the Health Services Complaints Commissioner and on 1 March 1999, Dr McKeown had noted:

"The foot was thoroughly explored via the dorsal and plantar approach, but no pus was found. It was not possible to obtain an adequate specimen for culture, as the tiny amount of sterile-looking clear fluid was mixed with fresh blood. No biopsy was indicated".

Dr Thomas Michael McKenzie Long, Surgeon (Reports for Plaintiff)

61. Dr Long opined that, given the plaintiff's diabetic status, the best surgical approach would have been through the puncture wound. The ultrasound would have heightened suspicion of collected infection. As to Dr McKeown's stated approach, he said:

"Well, it's not what I would do. I don't think that it could be called accepted practice. Also the serous fluid discharged usually indicates that there is some other collection nearby."

62. He also dismissed Dr MeKeown's alleged probing through the plantar aspect of the foot as "a fairly ineffective manoeuvre if you're looking for pus". He was critical of Dr McKeown's failure to attempt a swab, even given the procedure the latter had followed.

63. Dr Long agreed with Ms Walker, for the defendants, that the plaintiff had "compounded his problems" by insisting on discharge on 15 October 1997. However, he adhered to his view that the dorsal approach was not appropriate. Further, he had difficulty accepting that the puncture would have remained open. His reply to Ms Walker on that issue was:

"...if it was a puncture wound I don't understand how it can remain open effectively. You know, they seal very quickly, puncture wounds. If it was a bigger wound than a puncture wound, well, perhaps I could understand it but I understand it was a puncture wound."

64. He thought Dr McKeown's account of being able to irrigate from the incision on the dorsum of the foot through to the puncture wound "sounds strange" and in any event not adequate and "a little illogical". However, he could understand that a swab of apparently sterile serous fluid and fresh blood would be perceived as futile.

65. Nevertheless, he adhered to his view that adequate drainage from the site of the wound upwards towards the top of the foot, might well have avoided the osteomyelitis becoming permanent.

66. The ongoing pain, Dr Long considered was a result of:

"... little neuromas, interdigital nerves that can become involved and cause pain. I think it's probably more likely to be coming from his pre-existing osteoarthritis and the alteration of the balance of his foot as that's the most likely thing in the absence of ongoing infection."

67. Dr Baird, in his report of 25 May 2000 whilst noting that up to 18 October 1997, treatment had been appropriate, criticised the procedure up to 22 October on the basis that no swab was taken, nor the bone scan recommended on 21 October 1997 and the absence of plantar drainage. He did agree with Dr McKeown and Dr Long that the patient's insistence on early discharge on 15 October 1999 had adversely affected the outcome.

68. There was, additionally, a report from Dr Peter Morris, an orthopaedic surgeon, that establishes a link between the outcome of the operative treatment and the plaintiff's current disabilities, including his left knee replacement, albeit there was pre-existing arthritic disease in the affected foot.

69. There was a medical report from Dr Thomas Hugh, a specialist surgeon and a report, supplemented by oral evidence from Dr Alistair Brown, a consultant surgeon.

70. Dr Hugh noted that the plaintiff, being, inter alia, diabetic, presented "an extremely difficult clinical problem".

71. The decision to explore the foot, as Dr McKeown did on 22 October 1997, he considered appropriate. The decision not to conduct a bone scan he considered defensible. That there was a failure to take a swab was, of course, obvious, but Dr Hugh doubted it would have been effective to reveal the source of the infection.

72. Interestingly, Dr Hugh considered it unlikely that the osteomyelitis commenced ab initio. It developed from the cellulitis, in his opinion. It may well not have been present on 18 October 1997. It was "probably established" by 27 October 1997.

73. It follows from this, of course, that had the pseudomonas organism been identified shortly after 22 October 1997 then, it follows from Dr Hugh's opinion, the osteomyelitis could have been avoided. Dr Hugh did not address the question raised by Dr Long, namely, the plantar approach to access sites of infection below the affected bone rather than merely from above.

74. Dr Brown agreed that the decision not to undertake a bone scan was reasonable, as was the decision to institute drainage and debridement. He noted that Gentamicin, an effective treatment for pseudomonas, had been administered for four days before the operation on 22 October 1997, as part of the general antibiotic response.

75. Dr Brown was asked to comment on Dr Long's opinion concerning the lack of plantar exploration. He addressed only the ultrasound finding of a collection of fluid under the extensor tendon, suggesting that if pus had been found there, there would have then been a need to enlarge the puncture wound to ensure dependant drainage.

76. Mr Crowe SC suggested to Dr Brown that the phlegmonous area over the puncture site should have been properly explored and drained. The response was:

"Well, I presume that having explored from the dorsal aspect and having opened up the puncture wound, that the tissue in between had been infected and the nature of the tissue damage determined, and presumably - I mean, one can only presume that there was no indication to extend the drainage on the plantar side of the foot".

77. In other words, it was presumed that the surgeon had entered from the plantar aspect to ensure proper debridement albeit that extensive incision should be avoided.

78. It was, plainly, a serious issue whether, despite the lack of any notation of having done so, Dr McKeown had explored the puncture wound from the plantar aspect of the foot.

79. The plaintiff, when recalled to give evidence, could recall no difference in the puncture wound before and after his hospitalisation though he did have pain on the top of it. He could not himself see the underside of his foot. The hole in it was, he said, still present.

80. Mrs Munday gave evidence that after about a week following the injury she had been asked by the plaintiff to look at the puncture wound. It seemed to be "just a little black scab sort of thing". There was no weeping or discharge from it. It was still the same after operation. There was no dressing on the underside of the foot.

81. That observation, if accurate, would contradict Dr McKeown's recollection that he had not only probed the puncture wound but also irrigated from the top to and through the sole of the foot.

82. In addresses, the failure to order a bone scan was expressly abandoned as a particular of negligence, as also was the decision to cease Gentamicin on 24 October 1997.

83. That left allegations that it had been negligent to have discharged the plaintiff on 15 October 1997 or, at least, without adequate warning. Further, the plaintiff was, on 16 October 1997, noted by Dr Dillon to have refused to return to hospital despite worsening symptoms.

84. That, Ms Walker submitted, was, at least, contributory negligence. It is consistent with Kalokerinos v Burnett (unreported, Supreme Court of NSW Court of Appeal, 1 November 1995, 30 January 1996).

85. The extent to which the plaintiff declined medical advice with knowledge of the likely consequences was, to say the least, uncertain. Nobody foresaw that he was likely to contract osteomyelitis as at 15 October 1997. Nor was it foreseen as a result of his reluctance to return as at 16 October 1997. This conclusion is reinforced by the lack of any corroborative evidence from hospital notes as to the discharge on 15 October or a note of any explanation of the consequences if the advice was not accepted. I am not satisfied that there was any sufficient warning of likely consequences, such as would have warranted a conclusion that the kind of consequences that transpired would follow. I do not think that the plaintiff could, for example, complain of the need for the operative procedure of 22 October 1997, though it was not occasioned by any culpable regime on his part. The chance, if any, of the plaintiff avoiding it was clearly lost by the plaintiff's own choices. However, once it was undertaken, it called for appropriate skill and judgment on the part of Dr McKeown.

86. The next, perhaps more contentious issue, related to the failure to take a swab of the materials drained from the dorsal incision to the plaintiff's foot. The explanation given for not doing so, in light of the previous negative result, seems to me to be reasonable.

87. However, that picture is complicated by the question as to whether merely to incise the dorsum was sufficient and then whether there should have been, or was a significant, or any, plantar exploration.

88. That is of some significance. If it was explored and no signs of infection seen, then it would be consistent with the pseudomonas infection occurring later. On the other hand, if it were not explored then the opportunity to find a collection of pus and to swab that collection would have been missed. In any event, it was apparent that the injection, if inserted by the nail, would be below the structures accessed by the dorsal approach. It may also be that irrigation of the foot, if passed right through it, may have flushed out infection.

89. Having considered the evidence, I have to say that I think it more likely than not that there was no plantar approach. Mrs Munday, who I consider a truthful and accurate witness, gave evidence inconsistent with such an approach having been undertaken. Further there is no operation note of it, nor any indications of dressings to deal with the inevitable seepage from the plantar wound. I think that, in retrospect, Dr McKeown believed he would have explored the wound and, perhaps, that he should have. Regrettably, I think that he is mistaken. He did not do so. His belligerence when challenged seems to me confirmatory that some seeds of doubt exist in his mind as to whether he did or did not explore the plantar aspect of the wound on the foot. His recollection that it had remained open is inconsistent also with the evidence of Dr Baird and Dr Long who considered that result highly unlikely.

90. I accept that Dr McKeown did not discharge the plaintiff prematurely because a bed was needed for other patients. I accept that he believed that further hospitalisation was no longer necessary as at 27 October 1997. Of course, it may well have been the impression the plaintiff had, and I would not exclude the possibility of some light-hearted remark to the effect that the bed was needed for others, but I do not accept that there was a premature discharge. The hospital notes all indicate an improving situation as at that point.

91. As Ms Walker contended, the only basis for a finding of negligence lies in the failure to diagnose a pseudomonas infection earlier. There would, in any event, be an issue as to the causal link between that failure and the development of the osteomyelitis dealt with on 1 November 1997.

92. It could have been added, of course, that the effect of a failure to explore the wound from the plantar aspect as Dr Long preferred, would be causative of the result only if it could have either released a sufficient culturable fluid or, and I have no evidence of this, have killed off any pseudomonas present.

93. Indeed Mr Crowe SC did not seriously press any suggestion that the discharges of 15 and 27 October 1997 bespoke any failure in the appropriate standard of care. The primary criticisms relied on were, first, the failure to take a swab. Second, the failure, given the ultra sound report of the formation of a "1.5 centimetre diameter irregular phlegmonous area beneath the puncture site" where pus may be forming or have, by the time of operation, have formed, to adequately explore and/or drain the infection site.

94. It is significant that Dr Baird was of the opinion that, contrary to Dr McKeown's description of it in 1999 when responding to the complaint, the contemporaneous notes indicated there was a "fair collection" of fluid in the foot and that "some pus was released". That material, Dr Baird considered, should have been sufficient for a swab on which "its most likely pseudomonas would be present".

95. Had that been done, pseudomonas would have been identified within 12 to 24 hours thereafter, at the outside 48 hours. Thus the regime of drugs indicated as appropriate by Professor Collignon should, and probably would, have been in place by or on 24 October 1997.

96. The more difficult question is whether that regime, had it been implemented earlier, would have prevented or significantly limited the bone damage it ultimately caused.

97. Certainly, Professor Collignon, whose opinions I accept, went so far as to assert that if the tissues and bone explored on 22 October 1997 had seemed clean and non-infected, then treatment to eliminate the Pseudomonas, if in place within 12 to 48 hours thereafter, "would probably have stopped osteomyelitis occurring".

98. I consider this represents the truth of the matter. Dr McKeown noticed no signs of infectious attack. Even though he had not scrutinised above the puncture wound, there was, over the period up to discharge, an improvement in the plaintiff's symptoms. That indicates to me that the Pseudomonas, though present, had yet to perform its nefarious work.

99. Thus had Dr McKeown explored and swabbed properly on 22 October 1997, it is my view that the osteomyelitis would probably not have developed.

100. It follows that there must be a finding of liability against the defendants.

101. There was an allegation of contributory negligence. It relied upon the plaintiff's actions between 14 October and his re-admission to hospital as being causative of exacerbating the damage suffered.

102. As to that, whilst I do not doubt the plaintiff's pain and suffering was exacerbated by his early discharge of 15 October, I am not satisfied that this was directly contrary to medical advice. The plaintiff was certainly told it was preferable to remain, but the absence of a note of discharge contrary to advice clearly supports the view it was not stronger than that.

103. In any event, once the plaintiff was re-admitted, the effective cause of the ongoing disability was Dr McKeown's negligence. I cannot find any causal link between the discharge on 15 October 1997 and the development of the osteomyelitis. That remained preventable despite the delay.

104. I reject the submission that any verdict should be reduced by virtue of contributory negligence.

Damages

105. It must be accepted that, even had effective treatment eliminated the pseudomonas before osteomyelitis set in, the plaintiff would have had some considerable pain and suffering in the foot following the operation, at least for several weeks. He had arthritic changes in the foot. It was likely over time they would deteriorate. However, Dr Dillon expressed the view, which accords with common sense, that the arthritic changes, particularly in the left knee, have been exacerbated in the case of the foot by the operative interventions of November 1997 and December 1998.

106. There is, in my view, a causal link between the increased pain and disability in the right foot and the acceleration of the need for the left knee replacement. I note that Dr Peter Morris agrees with that assessment.

107. There has been ongoing chronic pain. The plaintiff requires a crutch to walk other than short distances.

108. There is no ongoing economic loss and I accept that the plaintiff already had multiple disabilities as Dr Morris has fairly depicted. Nevertheless, a considerable insult has resulted to the plaintiff's well being.

109. I would award $50,000 for the pain, suffering and disability attributable to the inadequate treatment of the plaintiff's injury on and up to 27 October 1997.

110. I attribute 50% to the past (plaintiff was then aged 52 years) generating interest of $3,500.

111. There is a claim for ongoing treatment. That is difficult to assess. The $9,000 incurred between 1997 and the present time would have been only partly attributable to the foot condition and its sequelae. Arthritic changes would, I believe, have worsened, even without the right foot disabilities. Nevertheless a substantial portion is so attributable; I consider that $7,000 of the expenses is so attributable.

112. The current portion of future expenses attributable to the negligence of Dr McKeown would diminish over time in its attribution to the foot disabilities but nevertheless I think an estimate of $6,500 is fairly attributable to the ongoing effects of the failure to avoid the osteomyelitis.

113. There was a claim for unpaid assistance. It was put as amounting to 9 hours per day. In truth, the evidence did not go so far. It is true that the plaintiff has been significantly disabled but though with difficulty, he has remained mobile. Apart from tending to his wound, there was, in my view, little domestic assistance required outside of the immediate post-operative periods. There was the withdrawal by the plaintiff from cooking for the family and gardening has certainly been more difficult for him, shifting the burden to other family members. There is, as Mr Crowe conceded, a substantial discount to be taken into account. I feel the calculation cannot be done other than on an initiative basis. For the past I would allow $30,000. That attracts interest at the usual commercial rate of 10% per annum, in round figures, $21,000. For the future I would allow $20,000.

114. Out of pocket expenses were agreed at $8,919.90 should liability be found. It is.

I award that figure.

115. Future expenses are more difficult to estimate. There is an increased usage of analgesic, consultations for and supply of orthotics with his general practitioner. The evidence was not precise as to that and it is subject to the same substantial discount factors as other future projections. I would allow $8,000 as a "buffer" for future expenses attributable to the failure properly to have treated the plaintiff's injury.

116. Those amounts may be summarised as follows:

General Damages:

Pain & suffering $50,000

Ongoing treatment (past) $7,000

Ongoing treatment (future) $6,500

Unpaid assistance (past) $30,000

Unpaid assistance (future) $20,000

Future expenses (buffer) $8,000

Interest for:

Pain & suffering (past) $3,500

Unpaid assistance (past) $21,000

Total sum of damages and interest: $146,000.

117. This sum seems appropriate. There will be judgment for the plaintiff against the defendant accordingly. I will hear the parties as to consequential orders and costs.

I certify that the preceding one hundred and seventeen (117) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Associate:

Date: 20 December 2004

Counsel for the plaintiff: Mr RL Crowe SC

Solicitor for the plaintiff: Pamela Coward & Associates

Counsel for the defendant and third party: Ms L Walker

Solicitor for the defendant and third party: ACT Government Solicitor

Dates of hearing: 28 April, 20-21 July 2004

Date of judgment: 20 December 2004