Which case won?

The case for the patient
  • I only consented to the senior surgeon completing the initial operation, not the junior surgeon whom I had not met. This was tantamount to assault and battery.
  • If unsuccessful in the claim for assault and battery, I claim in the alterative that the hospital was negligent in my care on a number of grounds.
  • My treating surgeon should have known I was more prone to infections, given my additional risk factors of obesity and smoking, as well as location of the caesarean section incision very low on the abdomen. A reasonable surgeon would have taken steps to prevent the development of an infection by applying surgical drains.
  • Following the second and third operations, my treating surgeon should have diagnosed the presence of the infection and its source, being the surgical mesh. Failure to do so amounted to misdiagnosis.
  • When I returned to the hospital for subsequent procedures, the mesh should have been removed and I should have been given intravenous antibiotics for a longer period, perhaps one month.
  • Because of the shortcomings in my initial treatment and care, I was forced to endure an additional five operations which could have been avoided. The court should find that the hospital is liable in negligence.
The case for hospital
  • The patient consented to the procedure by signing a consent form which stated that the surgery could be performed by a junior surgeon under a senior surgeon’s supervision.
  • There are no fixed rules governing the use of post-surgical drains, which are only required where there is bleeding or infection. These were not present when the patient’s hernia repair operation was performed.
  • The use of surgical drains is dependent upon each individual patient’s circumstances and also depends on the particular treating surgeon’s individual professional judgment at the time.
  • Surgical drains can in fact act as a conduit for infection, so their use is not without risk.
  • The development of infection is an inherent risk of any surgery. It is not evidence that surgery was not performed to a competent professional standard.
  • The patient’s treatment and care fell within the parameters of competent professional practice and the court should find that the hospital is not liable in negligence.

So, which case won?

Cast your judgment below to find out
Case A Case B

Case A won. You were right!

How people voted
case a56%
case b44%

Expert commentary on the court's decision

Alexander Hairs
Alexander HairsLawyer
“The court found that surgical drains would have been instrumental in avoiding the patient’s infection, given that the patient’s risk factors meant she was at a higher risk of developing an infection. Further, the hospital was also negligent in failing to diagnose the patient’s infection when she returned to the hospital on subsequent occasions.”
Supreme Court finds in favour of patient

In July 2017, the Supreme Court of NSW delivered judgment in the case Tinnock v Murrumbidgee Local Health District (No 6) [2017] NSWSC 1003.

After considering the case put before it, the court found that the patient, Mrs Tinnock, had consented to the procedure, and therefore the assault or battery argument failed.

However, with the alterative arguments of negligence, the court held that first, considering the patient’s specific risk factors, not applying the surgical drains in the initial surgery equated to negligence, as this was a missed opportunity to reduce, or avoid, the infection.

Secondly, the court found that on 3 July 2010, when the patient returned to the Wagga Wagga Base Hospital where the surgery had been performed, there were sufficient symptoms for the hospital to diagnose her infection and treat it more aggressively.

Did the patient’s risk factors warrant the use of surgical drains?

The court had the benefit of six expert witnesses on the issues of negligence, five general surgeons and one infectious diseases specialist.

For the most part, the experts were in agreement that the initial hernia repair operation was completed to a professional standard, and that the onset of the infection was a foreseeable, and not insignificant risk.

Therefore the court was faced with two questions. Would a reasonable surgeon have taken the precaution of inserting a surgical drain at the time of the initial surgery? And when the patient returned to the hospital on several occasions following the initial hernia repair operation, were there sufficient symptoms for the hospital to diagnose and treat the patient’s infection?

Surgeon’s decision not to use surgical drains in initial hernia repair operation

Even the hospital’s own expert was critical of the care that was provided to the patient, commenting in oral evidence: “…this case is a nightmare, if I may say, for a surgeon… it is not an easy case. This patient was waiting for an infection. This was on the cards right at the outset.”

The hospital expert was referring to the patient’s added risk factors of obesity and smoking, combined with the fact that the site of the caesarean section incision was very low on the patient’s abdomen. These factors introduced additional elements of risk to the known propensity of surgical mesh for resulting in infection and the fact that seroma fluid also creates a breeding ground for infection.

However, the hospital expert’s position was that the development of post-surgical infections was not indicative of actions that fell short of professional standards and that in any case, infections following surgery have a high incidence rate.

Was the use of surgical drains a mandatory step?

The discussion of the six experts centred on whether the use of surgical drains was a mandatory step to be taken by the surgeon. The expert views ranged from no, to yes, to maybe in certain circumstances. The experts each had their own view as to the correct method.

Ultimately the judge fell back on expert consensus, which was that the patient was a high risk patient and based on the expert evidence, a surgical drain should have been applied at the wound site as part of the original surgery.

The judge found that surgical drains would have been instrumental in avoiding the patient’s infection, given that due to her risk factors she was at a high risk of developing an infection. Thus the hospital had breached its duty of care and was negligent not to apply a surgical drain.

Hospital’s diagnosis and treatment of infection

In reviewing the rest of Mr Tinnock’s claim against the hospital, the court found that between 7 June 2010 and 27 June 2010, the patient did not have symptoms severe enough to warrant the diagnosis of an infection and therefore the hospital was not negligent in its care of her when she underwent the second and third medical procedure.

However, when Mrs Tinnock came to the hospital on 3 July 2010, her symptoms were sufficiently worrying for the hospital to take action and investigate her symptoms. By not doing so, the hospital allowed the infection to worsen and failed in its duty of care to the patient.

After a protracted legal process, Mrs Tinnock was awarded $1 million for her pain and suffering, past and future loss of income, past and future treatment expenses and past care requirements.

The court also ordered the hospital to pay Mrs Tinnock’s legal costs.

NOTICE: This article is accurate as at the time of publication and does not constitute legal advice. Please see our legal notices page for more information. Information related to coronavirus can be outdated very quickly.

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