Ms Tinnock was successful in this medical negligence claim against the Murrumbidgee Local Health District in relation to surgery performed on 7 June 2010 for repair of an incisional hernia repair and subsequent treatment while she was admitted as a public patient at Wagga Wagga Base hospital.

This claim is relevant to issues of patient consent and the duty of care owed to patients to ensure they are properly treated based on their particular circumstances.

Summary of the case

  • On 7 June 2010 Ms Tinnock underwent a repair of the incisional hernia with mesh. On 15 June 2010 she had further surgery to drain a seroma which developed and involved application of a VAC dressing. The Judgment clarifies that “a seroma is a collection of serous fluid produced as a reaction to inflammation to the trauma that has been done to the body by the surgery.” On 27 June 2010 Ms Tinnock underwent further surgery to close the abdominal cavity.
  • Justice Campbell considered the evidence from medical experts and found that the defendant breached its duty of care to Ms Tinnock by:
    • Failing use surgical drains after the surgery on 15 June 2010 to reduce the risk of infection. All experts agreed that negative pressure surgical drains are needed in certain circumstances to reduce the risk or development of post-surgical infection. The experts did not agree on whether, in Ms Tinnock’s case, reasonable practice required the use of surgical drains. Justice Campbell was left with a distinct impression that although two of the experts were naturally reluctant to criticize their colleague, each of the experts that gave evidence would have used a drain in Ms Tinnock’s case.
    • Failing to diagnose the mesh infection by 3 July 2010 and treat it more aggressively with further surgery to remove the mesh and wash it with topical antibiotics if it could still be saved, or by removing it all together. Justice Campbell considered the expert evidence and concluded that there were obvious signs of infection by 3 July 2010.
  • Justice Campbell found that the breaches of duty of care likely caused Ms Tinnock’s need for multiple surgeries, treatment for many months with a cumbersome VAC dressing and other injuries. Justice Campbell awarded Ms Tinnock $1,005,509 in damages of which around $541,956 was for past and future income and superannuation loss.

Battery claim

  • In addition to bringing a claim in negligence, Ms Tinnock brought a claim for “battery.” Ms Tinnock claimed that the hernia repair on 7 June 2010 was performed without her consent because it was performed by a Registrar under the supervision of Dr Payne. Ms Tinnock’s claim was that she only agreed to Dr Payne performing the surgery, not any other doctor.
  • Ms Tinnock was unsuccessful in her battery claim. Ms Tinnock signed a form which clearly stated that the procedure/ treatment may be performed by another doctor. Justice Campbell found that Ms Tinnock would have clearly understood what this meant at the time but likely forgot these details. Accordingly and since the procedure was performed by Dr Payne and a doctor with the necessary medical qualifications, Justice Campbell found that valid consent had been provided. Additionally, Justice Campbell found that the surgery was not done with an intent to cause Ms Tinnock injury, which is relevant to proving a battery claim.

Get in touch with us

This case demonstrates that medical negligence litigation can be complex and therefore it is vital to ensure that every matter is investigated with skill and expertise.

At Turner Freeman we have lawyers who specialize in medical negligence claims. Our Sydney Partner, Sally Gleeson, along with her team of lawyers, have a dedicated practice in medical law.

If you or someone you know has suffered as a result of medical negligence, including a situation in which you have suffered injury as a result of inadequate treatment, or a lack of treatment at a public hospital, we encourage you to call us on 13 43 63 to speak with one of our medical law experts.