Hartfield v Calvary Healthcare ACT Ltd (No 4) [2025] ACTSC 488 (Link to Jade)
The plaintiff succeeded in the secondary part of her claim, in that hospital breached its duty of care in discharging the plaintiff while she was at risk of ectopic pregnancy without providing adequate advice concerning risk of ectopic pregnancy. The plaintiff suffered psychiatric injury. At [426}:
Taking into account each of the s 43 matters, I find that the Hospital had a duty of care not to discharge the plaintiff without discussing whether she wished to remain for observation and pain management, and without providing her with appropriate information concerning the likelihood of an ectopic pregnancy, the significance of increased pain and bleeding in that connection, and the need to return to hospital immediately in the event of an increase in pain and/or bleeding.
The court accepted that that the plaintiff would not have agreed to be discharged if she had been offered the opportunity to remain in hospital for further observation and management of her pain, and if she had been provided with adequate information concerning her ongoing risk of an ectopic pregnancy.
It was the experience of uncontrolled pain which was foundational to the trauma response which the plaintiff suffered. If the plaintiff had been in hospital, her pain levels would have been monitored by hospital staff and alleviated by the administration of pain killers such as Fentanyl. On the balance of probabilities that the plaintiff would not have suffered from a trauma related psychiatric condition if this had occurred. ([446]).
A contributory negligence argument was rejected.
The plaintiff’s primary claim,, which did not succeed, was that the Hospital should have undertaken (or, at least, advised the plaintiff to undertake) a laparoscopy during the course of the plaintiff’s first admission. The plaintiff contended that if a laparoscopy had been undertaken, it was likely that a successful salpingostomy would have been performed, which would have saved her left fallopian tube, preserving her ability to conceive naturally and without the assistance of IVF. The court held that although the risk posed by the plaintiff’s ectopic pregnancy was foreseeable (s 43(1)(a) of the Wrongs Act), and that the risk was not insignificant (s 43(1)(b) of the Wrongs Act), a reasonable person in the defendant’s position would not have performed a laparoscopy (s 43(1)(c) of the Wrongs Act) ([377]). In the absence of a positive finding of an ectopic pregnancy on the ultrasound and the presence of a corpus luteus cyst in the plaintiff’s left ovary, ongoing miscarriage remained a possible cause of the plaintiff’s symptoms at the time of her discharge.
The court noted at [272] that there is no equivalent in this (ACT) jurisdiction to s 5O of the Civil Liability Act 2002 (NSW), which relevantly provides that a professional does not incur a liability in negligence arising from the provision of a professional service if it is established that the professional acted in a manner that was widely accepted in Australia by peer professional opinion as competent professional practice at the time the service was provided.
The judgment included some discussion of s 110 (public authority resources), however as the proper construction of s 110 was not the subject of submissions by either party, it was not necessary to express a concluded view concerning the application of s 110 to the defendant.
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