*The contents in this blog relates to legislation in New South Wales.

An example of medical negligence and proving medical negligence involving surgical error:  Serious injury to right leg bones following motor cross riding accident

The following case indicates the technical and complex nature of medical negligence claims.

In Peterson v South Eastern Sydney Illawarra Area Health Service & Elliott [2010], Mr Peterson (the plaintiff) sustained very serious injuries to the tibia and fibular bones of his right lower leg when motor cross riding.  The various orthopaedic surgeons who gave evidence, all agreed that Mr Peterson’s injuries were of the most severe kind and that his leg almost required amputation.

The plaintiff was initially taken to Shellharbour Hospital.  He was in intense pain and was from there transferred to Wollongong Hospital.  He was operated upon by the Orthopaedic Registrar.  It was agreed that this initial surgery was of an excellent standard, reducing the many fragments involved in the complex ankle fracture, which was a very comminuted fracture that had resulted in many lose fragments of bone.

The issue in Mr Peterson’s case was the aftercare following the initial high quality orthopaedic surgery, and whether Mr Peterson should have been booked in to have a second surgery sooner, which might left him in a better overall condition.

Mr Peterson not only failed to convince the Court that his orthopaedic follow-up care and treatment was negligent, but he also failed to prove that his overall end post-accident result, was caused by any of the treatment he alleged was negligent.

Alleged breach of duty of care

The Court looked at whether there were any background events that could have adversely influenced the natural processes of healing of the fractures, as there were events on the time line that appeared to be relevant.

This included a fall that the plaintiff had suffered after his initial surgery, in which he further injured his right foot and ankle through no fault of his treating team.

Another such event was that Mr Peterson had developed an infection at the fixator pin insertion sites on his right calf after the fall, and that device needed to be removed. The Court found that there was no opportunity for the defendants to have reason to arrange a second surgery prior to that point. Such intervention was not justified as there was adjacent MRSA infection and it was still reasonable for the doctor to await the outcome of the expected natural healing processes.

The Court recognised and accepted as reasonable, the views of expert orthopaedic surgeons for the defendants, not only as to the management opted for by the treating surgeons, but also as to what constituted peer professional practice widely accepted in Australia.

The Court found that the defendants were trying to assist the plaintiff by managing his fractures in a conservative, or non-aggressive, manner. The fact that the decisions made by his doctors, in retrospect or hindsight, were either wrong or did not anticipate the slowness of the healing of the plaintiff’s fractures, did not necessitate a finding of negligence in the circumstances.

The fact that the expectant and non-invasive management was ultimately shown to have been unsuccessful in producing an early union of the fractured tibia, did not mean that the plan of management was below the standard that was expected in the circumstances.

The Court found that the defendants’ management of the plaintiff’s fractures was in accordance with peer professional practice accepted widely in Australia, as supported by expert opinion.


The Court also considered the issue of causation.  To succeed on the causation issue, Mr Peterson needed to show that the negligence alleged either caused or materially contributed to the injuries he was claiming compensation for. All relevant events must be taken into account in assessing causation.

The Court considered that the original injury sustained by the plaintiff involved a very severe set of multiple, complex and comminuted fractures.  The Court considered the prognosis for such traumatic and serious injury almost inevitably involved the plaintiff developing some lasting disability into the future, in the form of post-traumatic osteoarthritis. It was just a matter of time as to when this would occur.

The Court found that based on the medical evidence, the disabilities were most probably going to affect the plaintiff at some stage in his life, whether it was 2, 3, 5, 10 or so years after his injury, irrespective of any alleged negligence on the part of the defendants, on account of the severity of the underlying injury.

The court also placed weight on the report of the orthopaedic surgeon whom the plaintiff had sought a second opinion from in the course of his treatment.  That surgeon had stated that all of the plaintiff’s disabilities were a direct result of the motor cross riding accident, not any alleged delays on the part of either of the defendants. That view coming from a treating surgeon who had undertaken a thorough evaluation of the plaintiff’s problems before performing a second surgery upon him, was stated to be an insightful and insurmountable impediment to the success of the plaintiff’s case, on a causation  analysis.

There were also the concurrent and intervening events which complicated Mr Peterson’s post-surgical course and were considered by the Court in respect of causation and included:

  1. The plaintiff was a smoker, which is known to interfere with and slow down bone healing;
  2. That the plaintiff had suffered a fall at home after his initial surgery, and the fall had likely caused further impact to the fracture through not fault of Mr Peterson’s treating doctors;
  3. The court found that the fracture was progressing to a state of union without surgical intervention in any event, and as such, was not in a state of “non-union” in the sense that it was not going to heal without surgical intervention but rather “delayed union” in that he was still actively healing and recovering; and
  4. That the plaintiff was being actively considered and evaluated progressively throughout this time by his doctors, rather than being simply ignored.

This case demonstrates the complexity involved in establishing medical negligence in cases of complex traumatic injuries, and that the cause of the plaintiff’s harm was a surgical error or deficiency in follow-up care or treatment as opposed to the underlying significant complex injury itself.

Catch up on other articles you may have missed:
What is medical negligence? Failed surgeries or surgical error.

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Peterson v South Eastern Sydney Illawarra Area Health Service & Elliott [2010] NSWDC 114 (24 June 2010)
Civil Liability Act, 2002, NSW.