The horrifying consequences of a laparoscopic error causing a puncture to a female patient’s colon have been recounted in detail to a court only to yield trivial general damages.
On referral to the hospital by a local GP, Cara Chapman – whose complex gynaecological history had involved multiple surgeries – consulted specialist Dirk Ludwig at Hervey Bay who recommended a hysterectomy.
Within hours of that procedure in mid-December 2015 the patient developed agonising abdominal pain.
An emergency laparotomy conducted by surgeon Neil Harding-Roberts revealed an 8 mm perforation to her rectosigmoid junction that likely occurred as a result of the gynaecologist mistakenly resecting a portion of the sigmoid colon leaving an opening in her bowel wall.
With the puncture repaired, what was left of her sigmoid colon was removed and part of the remaining colon brought to the surface of her abdomen to form a stoma to which a colostomy bag was fitted.
Ms Chapman went into shock and depression when she saw the outcome of the emergency procedure. She struggled to acknowledge that she had the stoma and endured a difficult two months thereafter with multiple re-presentations for abdominal, psychological and neurological treatment.
The stoma reversal by surgeon Polbert Diaz eleven weeks later left her relieved at being rid of the colostomy bag but with painful pulling and other abdominal sensations that hindered her range of movement.
Her anxiety and depression caused fatigue notwithstanding treatment with antidepressants.
Compensation proceedings filed in November 2018 came before Judge Jennifer Rosengren in Brisbane’s District Court in August 2022.
Liability was admitted for the laparoscopic error by the hospital in recognition that the surgeon had likely mistaken the sigmoid junction for a residual portion of the left fallopian tube that he was required to remove.
Despite the gravity of the injury, the two additional surgeries she was required to undergo, the “horrendous” stoma and colostomy bag; permanent abdominal scarring; resulting depression; fatigue; and anxiety, general damages topped out at just $22,000.
That figure was arrived at from an ISV of 10 for the bowel injury uplifted to 13 to reflect its “adverse impact”, the scarring and her adjustment disorder that of itself rated an ISV of 5.
Although an uplift from 10 by more than 25% is permissible with “detailed written reasons”, a higher number was not sought.
This is understandable given the ISV system is so one-sided that the additional sum achieved from a total ISV of 14 or 15 is in any event inconsequential and not deserving of the added effort and expense required to achieve it.
Past loss of income of $18,000 and a “global” award for future income losses at $43,000 combined with past and future care awards totalling $87,000 to bring the total damages awarded to $202,000.
But that was not before the defendant hospital launched an attack on the plaintiff’s credibility claiming that the majority of her post surgery symptoms were the result of severe Obstructive Sleep Apnoea with which she had been diagnosed in September 2020.
Her honour took the OSA into account when considering vicissitudes of life but concluded that the fatigue Ms Chapman experienced was depression related and that her OSA was being successfully treated with CPAP therapy.
“The discount [the OSA] would attract would not be significant,” she observed.
The hospital also contended that expenses paid through her private health insurance should not be included in her claim without evidence that she was required to reimburse the health fund from the proceeds of the judgement.
Her Honour rejected that submission noting that the compensation obligation was “not contingent upon the existence of an obligation to repay.”
“A tortfeasor should indemnify the injured person for the loss rather than enjoy a windfall gain by shifting the burden of compensation” to a health fund, she ruled.
Considering the paltry general damages in cases such as this – when in New South Wales for the same injury the sum would be well in excess of $100,000 – the time has come for Queensland’s ISV methodology to be reformed. It is clearly no longer fit for purpose.