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The cost of ongoing domestic care for victims of hospital negligence is a major component of compensation awards when serious injury results.
Consider the case of Michael Stewart – a former New York ad agency art director who came to Australia in 2005 – who presented to the Redcliffe Hospital Emergency Department in March 2016 complaining of abdominal pain.
The 63 yr old – who suffered other serious medical conditions – underwent a laparotomy a few days later to treat bowel obstructions during which two bowel perforations occurred.They resulted in peritonitis and other serious complications that necessitated three further open abdominal surgeries the following week and left the patient with permanent bowel dysfunction, a stoma and a colostomy bag.
In the intervening period, Mr Stewart also suffered a major stroke which – unrecognised until it had progressed – left him with major neurological deficits.
He filed a lawsuit in April 2022 against the hospital which eventually admitted the severe brain and bowel deficits – including speech and motor impediments – were as a result of its negligence.
It contended though that Stewart’s life expectancy has been so much reduced by the consequences its errors that the resulting damages payable to him were a mere fraction of the $5.6 mil that the patient claimed he would need for care and treatment for the remaining years of his life.
Not in dispute was the statistical life expectancy for a 71-year-old male was a further 15.7 years.
What the Queensland Supreme Court had to decide was by how much did Stewart’s pre-existing medical conditions reduce the expected years of his life and how had the stroke done likewise.
Stewart relied on the testimony of rehabilitation physician Jan Rotinen Diaz who estimated his pre-existing cardiovascular conditions reduced the expected period by 30% and that the stroke had resulted in a further 5.5 year reduction.
Physician Jeff Karrasch provided an opinion that predicted Stewart to have died before the October 2023 trial and Professor David Straus put his remaining years – statistically – at 5.3 but said that figure “might be too high by a number of years”.
Justice Sean Cooper decided to adopt the net life expectancy estimated by Dr Diaz, namely 5 years from the date of the trial.
What then were the expenses that the hospital should be required to pay for over the patient’s remaining lifetime and should those expenses be based on the cost of institutional care of the type he was already receiving at the Ozanam Villa Aged Care Facility at Clontarf or the higher cost of having care provided to him at a rented place of his own?
In a video produced as evidence the patient appeared to give a negative response when asked: “Do you want to stay here” – referring to Mr Stewart’s room at Ozanam – where the video was recorded.
There was conflicting medical evidence as to whether a person with severe cognitive difficulties like Mr Stewart was capable of expressing consent or dissent by means of nodding his head.
Justice Cooper was ultimately of the view any assent by those means could not reflect a full understanding of what a move from institutional care to his own home might mean for his future care.
He agreed there were many benefits to the patient in having his care and treatment performed in-home. But those benefits had to be considered against the reasonableness of the far higher cost of doing so.
The cost of his care over 5 years if were he to remain at Ozanam was projected at $1,081,895.56 as compared to $4,910,342.52 for the same care provided to him in-home.
Justice Cooper was not satisfied that the additional expense of $3,828,446.96 would be likely to result in health benefits to the patient that were significantly better than those likely to be achieved at Ozanam.
“In those circumstances, I do not consider it reasonable to require that the [hospital] pay the significant additional cost that would be involved in Mr Stewart moving from Ozanam into his own home”.
The care costs, general damages (assessed at $285,000) and allowances for future therapy and medical treatment made up a total award of $2.191 mil. The hospital is also required to pay the additional cost to a trustee for management of the funds and the administration of payments to service providers.
Stewart v Metro North Hospital and Health Service [2024] QSC 41 Cooper J, 20 March 2024
Categories: Medical Negligence