Background
Vesna Zvicer was admitted to John Hunter Hospital on 11 November 2020 with severe sepsis, multiple-organ dysfunction and acute compartment syndrome affecting both legs and thighs. Treating orthopaedic surgeons concluded that the muscles and nerves in her left lower leg had already died. They urgently performed fasciotomies on her right lower leg and both thighs, but not on the left lower leg, which was later amputated below the knee.
Ms Zvicer alleged that hospital staff had wrongly concluded that the left leg was unsalvageable and that a fasciotomy would have prevented the below-knee amputation. Her four children also sought damages for psychiatric injuries said to arise from their mother’s condition and disabilities. The Hunter New England Local Health District denied breach and causation and relied upon the professional-practice and inherent-risk provisions of the Civil Liability Act 2002 (NSW).
The Court’s Holding
Muston J dismissed every claim. The Court accepted the treating surgeons’ evidence that Ms Zvicer’s left lower leg showed no pain response, sensation or active toe movement and appeared non-viable. Their decision against fasciotomy reflected the negligible prospect of salvaging the leg and the potentially grave risks to a critically ill patient, including reperfusion injury, infection and death. The plaintiffs did not establish actionable negligence in that treatment decision.
The plaintiffs also failed to prove that performing a left-leg fasciotomy would, on the balance of probabilities, have prevented the below-knee amputation. The children’s claims failed independently because, except for Jai, they did not establish a recognised psychiatric illness, and none proved that any psychiatric condition would have been avoided or less severe had the fasciotomy occurred. The Court ordered the plaintiffs to pay the District’s costs, subject to any timely application for a different order.
Key Takeaways
- A poor medical outcome does not establish negligence where the treatment decision was reasonably based on the patient’s presentation and the competing risks of intervention.
- A plaintiff must prove that the alleged breach probably caused the claimed injury; proof of a mere chance of a better outcome is insufficient under ss 5D and 5E of the Civil Liability Act.
- Secondary psychiatric-injury claimants must establish both a recognised psychiatric illness and a causal connection between that illness and the particular negligence alleged.
Why It Matters
The decision illustrates how courts assess urgent clinical judgments made in a “life before limb” setting. Evidence that an additional procedure was technically possible did not establish that competent practice required it where clinicians reasonably believed the limb was dead and intervention could produce catastrophic consequences.
It also underscores the distinct causation burden in claims by family members. Trauma arising from a prolonged medical crisis cannot be attributed to one disputed treatment decision without evidence that a different decision probably would have prevented or reduced the psychiatric harm.