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Damages awarded for fistula caused by surgical error | Our Client’s Story

Posted on 2nd May 2020
Catherine Henry Lawyers
Catherine Henry Lawyers

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fistula caused by a surgical error

Catherine Henry Lawyers’ health law team secured sizeable damages for a fistula, caused by a surgical error which robbed our client of his quality of life.

11 follow up surgeries to correct a bowel cancer surgery error

Our client had surgery for bowel cancer at a regional hospital in NSW.  No complications were recorded but after leaving hospital he began having trouble passing urine.

It was discovered that our client had a fistula (opening) in his left, and only functioning ureter – the tube that passes urine from the kidney to the bladder.

Our client endured 11 surgical procedures during multiple hospital admissions over a long time to treat the fistula. In hospital he experienced a host of complications including a blocked ureteric stent, various infections and unpleasant pressure sores.

Infections of the urinary tract and kidneys plagued our client. He required considerable personal and domestic care. As a result of the tubes and bags attached to his body, he is unable to sleep in the same room as his wife. His embarrassment and discomfort left him housebound during a lengthy recovery period.

Our case for justice and compensation

The matter was heard in the NSW District Court.

We made the case for our client who claimed the injury to his left ureter was due to the negligence of the defendants – the surgeon and the local area health service who was responsible for managing the hospital in which our client had the surgery.

The issues before the Court were:

  1. the cause of the injury
  2. whether that injury was the result of the failure to use reasonable care and skill in the performance of our client’s surgery
  3. if so, whether the provisions of ss 51 and 50 of the Civil Liability Act 2002 (NSW) provided a defence to the claim.

The defendants presented a number of possible causes of the injury. We produced several independent medical experts to give evidence against those propositions. The court rejected the defendants’ propositions and accepted that the injury was caused by the use of a diathermy probe which resulted in a low level full thickness burn to the ureter

The second issue was whether the burn occurred as a result of inadvertence or failure to exercise care and skill in performing the operation. The court preferred the evidence of our doctor and found the defendants in breach of their duty of care to the plaintiff.

The third issue before the court was whether the defendants were afforded the protection of the defences contained in the Civil Liability Act 2002 (NSW).  It rejected defences put forward by the hospital that the risk was inherent, and that hospital staff acted in a manner that is widely accepted by peer professional opinion as a competent standard of medical practice in Australia.

We argued that following the surgery our client’s quality of life drastically diminished. He could no longer care for his home and garden or enjoy the host of activities he previously enjoyed including fishing, swimming, ball games, tennis, dancing and attending the local club. The extent of the physical injuries caused him to become depressed and withdrawn from his former happy life, including not playing with his grand-children and missing major family events.  We showed the extent of gratuitous care his wife had to spend caring for him.

The Court awarded substantial damages and the defendants had to pay our client’s legal costs.

Let us fight for you or your loved one

If you or a loved one have experienced the negative impacts of surgical error or poor medical treatment at the hands of a medical practitioner, please get in touch with one of our caring, expert, health lawyers about the options available to you.

Taking legal action can also help change health care practices and hold health care professionals to account so other people do not to have experience what you went through.


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