Recently, the District Court of New South Wales delivered its decision in Graham Cleary v Health Care Corporation Pty Ltd t/as Wollongong Private Hospital [2023] NSWDC 263.

On 17 July 2020, the plaintiff, Mr Graham Cleary, was admitted to Wollongong Private Hospital for an operation on his back. Prior to this operation, he underwent a number of earlier procedures to relieve back pain and right leg pain. This included an L4/5 posterior lumbar fusion which relieved his right leg symptoms but some weeks after the operation the Mr Cleary began to have left leg pain. Investigations revealed that a piece of bone, an osteophyte, had been dislodged during the disc fusion operation and was causing irritation to the nerve and pain in Mr Cleary’s left leg.

The operation on 17 July 2020 was to remove the osteophyte.

After the surgery, that evening, Mr Cleary said that he did not have any symptoms in either of his legs. The following day, Mr Cleary alleged that he was taken from the hospital’s Intensive Care Unit (ICU) to radiology for a CT scan. He alleged that he was wheeled in his bed by two staff members, one pushing the bed from the head, and the other guiding the bed at the foot. The back of Mr Cleary’s bed was raised to ease his discomfort. After the CT scan was performed, Mr Cleary alleged that he was wheeled back in his bed to the ICU. As the bed approached the doors to the ICU, and while the bed was moving at walking pace or slightly slower, he further alleged that the staff member at the foot of the bed let go of the bed in order to open the doors and, the end of bed not then being guided continued to move and struck the wall to the side of the doors.

Mr Cleary alleged the impact caused a shock through his body. He slid down the bed, his feet coming into contact with the footboard, allegedly causing him to feel immediate pain and numbness which worsened over the next hour or so.

Mr Cleary argued that the force of the impact of the bed and the wall on the return from the CT scan caused a graft fragment to be expelled from the vertebra and to come to rest on the outer vertebral surface under the L5 nerve. The hospital contended that the force of the collision between the bed and wall was minor and would not have caused the bone graft material to be expelled from the site of the disc fusion.

The Court found in favour of Mr Cleary, saying “I do not accept that it was ‘small’ or ‘minor’ in its effect and there is no evidence that the graft material was otherwise precariously placed.”

Mr Cleary was awarded damages of $583,711.

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