Medical Negligence and Vicarious Liability: Holding the State of Queensland Accountable

Masson v State of Queensland [2019] QCA 80

Losing a loved family member or friend or seeing them in a seriously disabled condition is devastating and can have long term psychological and financial repercussions.

In cases where a person has died or suffered unnecessarily as a result of another person’s negligence, there is a possibility that significant compensation may flow from that event.

Of course, money cannot take away the pain but it can help ease the financial and other burdens which can ruin the lives of surviving family members and friends. In some cases, there might be a perceived need to ensure that the same events do not reoccur and cause suffering to others.

In some circumstances, the executor of an estate of the deceased may be able to continue or make a claim.

In the matter of Masson v State of Queensland [2019] QCA 80 the appellant was the estate of the late Ms Masson. Ms Masson’s claim survived in the hands of her estate in accordance with the Succession Act 1981 (Qld). The claim in negligence was against the State of Queensland as the provider for the Queensland Ambulance Services (‘QAS’).

This case demonstrates that the QAS can be held vicariously negligent for the actions or inactions of an ambulance officer who is negligent in their duties.

 

Background Facts

Ms Masson was a 25 year old female, suffering from chronic asthma with a life-long history of severe asthma. In 2002, she suffered a severe asthma attack while at a friend’s house and required urgent medical attention. Within a short period of time, ambulance officers arrived at the scene and treated her immediately.

The principal attending ambulance officer observed that her face was blue, she had a low respiratory rate of two breathes per minute, high blood pressure of 155/100, high pulse rate of 150 beats per minute and that she was effectively unconscious.

As part of her treatment, the attending ambulance officer intravenously administered the drug salbutamol. The amount administered was twice the maximum dose recommended by the Queensland Ambulance Services’ Clinical Practice Manual (the ‘Manual’). All ambulance officers are issued and provided with a copy of the Manual for use in the field.

Approximately, 20 minutes later it appeared that her condition did not improve and, while on route to the hospital, she was administered the drug adrenaline and given further doses of adrenaline when she arrived at the hospital.

It was later determined that, when the ambulance officers arrived at the scene, she had already stopped breathing and by the time she had arrived at the hospital she had suffered irreversible brain damage due to being deprived of oxygen.

She died in late 2016 after surviving from 2002 onwards in a vegetative state, receiving around the clock care.

 

Allegations of Negligence by the Appellant

The trial judge rejected the numerous allegations of negligence put forward by the appellant. Interestingly, the trial judge conceded that an earlier administration of adrenaline would have prevented Ms Masson from suffering irreversible brain damage.

However the trial judge held that, in the circumstances, the officers were not negligent in delaying the administration of adrenaline as they did.

On appeal, the appellant continued to press two allegations previously submitted:

1.That the ambulance officers ought to have administered adrenaline immediately ,or at least within a couple of minutes, rather than doing so only 20 minutes later; and

2.Although the ambulance officers were not themselves negligent, they were inadequately trained and instructed by the QAS to deal with an emergency such as this one, with the consequence they did not administer adrenaline earlier.

The second allegation was rejected by the trial judge and the appellant judge on the similar basis that in a case of this kind, it was a reasonable response to administer salbutamol as the officers did, and therefore there was no negligence in not instructing the officers to do otherwise.

 

The Issue before the Court of Appeal

The appellant judge agreed with the trial judge’s findings that if Ms Masson had not reached the point of a respiratory arrest, it was certainly imminent and that if a person stops breathing, cardiac arrest will soon follow (and then death).

Importantly, under the Manual, the ambulance officers were instructed to ‘consider’ the administration of drugs by using sound clinical judgements, based on the potential benefits and adverse effects of the drug. The term ‘consider’ does not imply that a treatment is automatically appropriate for the patent.

The appellant judge took issue with the fact that the trial judge’s attention was not drawn to the parts of the Manual that referred to the timing of the effect of salbutamol and adrenaline.

The Manual included a ‘Drug Data Sheet’ (“the Drug Sheet”) which contained particular facts about adrenaline and salbutamol and described the circumstances in which these drugs should be administered.

For adrenaline, the Drug Sheet indicated that Bronchospasm (i.e. airways of the lungs are constricted) unresponsive to Salbutamol and cardiac arrest were conditions in which the ambulance officer should consider administering the drug.

The impact of adrenaline was described by reference to the time at which it would start to take effect, the time at which the drug would have its peak effect and the duration of its effect. For adrenaline administered intravenously, the “Onset” was said to be 30 seconds, the “Peak” was said to be two minutes and the “Duration” was said to be five to 10 minutes.

As to the timing of the effect of salbutamol, if administered intravenously, it said that the drug had an “Onset” of one to three minutes, a “Peak” of five to 10 minutes, and “Duration” of 10 to 20 minutes.

The primary issue before the court was whether, in the circumstances, the administration of adrenaline was a superior and more effective drug of choice than salbutamol, given that the Manual is a representation of the opinion of the QAS.

 

The Appellant’s Primary Submission

The appellant argued that there was a critical difference between the timing of the effects of the two drugs, which demonstrated the reason for preferring adrenaline in the present case because Ms Masson was at imminent risk of death.

Both the appellant and respondent produced experts who were gave expert evidence. The expert evidence produced by the appellant confirmed that Ms Masson was “really, really close to death” at the time the ambulance officer’s attended the scene.

The appellant judge reviewed the Manual and the Drug Sheet which indicated clear instructions of the quantity of adrenaline to administer to a patient who was suffering from severe bronchospasm with imminent cardiac arrest. Whereas, there was no such reference in the Drug Sheet for salbutamol.

This would mean that for a patient who was at the point of imminent arrest, only adrenaline should be considered, rather than salbutamol, and that only in a less severe case than one of imminent arrest, should salbutamol be considered.

 

The Findings of the Court of Appeal

“The Court of Appeal consider the standard of care owed which should or ought to be owed by an ambulance officer.

In relation to the standard of care, the Court of Appeal found that:

“The difference between the care and skill to be expected of an ambulance officer and that to be expected from a specialist in emergency medicine is significant in a number of ways. The first is that, notwithstanding their training, ambulance officers cannot be expected to make the fine professional judgments which would require the education, training and experience of a medical specialist.

That limitation is recognised by the fact that ambulance officers are provided with the instructions and guidance of something such as the [the Manual]. [The Manual] was significant evidence of a relevant standard of conduct.”

 “Further, again because of the more limited education, training and experience of ambulance officers compared with medical specialists, it would not be consistent with the exercise of reasonable care and skill for an ambulance officer to depart from the guidance of the [Manual]. A substantial issue in this appeal is the scope of the discretion, provided by the flowchart, to “consider adrenaline”.

The exercise of reasonable care required that such consideration actually occur, but consistently with the guidance provided by the [Manual]. A departure from that guidance, with the grave risk that the patient would not avoid serious injury or death, could not be easily justified upon the basis that the officer believed that there was a responsible body of medical opinion which supported that course.

Unlike the medical specialist, the ambulance officer does not have the requisite competence to make their own professional judgment about the merits of competing views within a field of specialised medical practice”

The appellant judge found that the treatment of the attending ambulance officer departed from the prescribed dosages of salbutamol according to the Manual.

The flowchart in the Manual required the officer to ‘consider adrenaline’, not to ‘consider adrenaline or salbutamol’, which means that the flowchart did not suggest salbutamol as an alternative to adrenaline.

The principal attending ambulance officer gave evidence which indicated that the Manual was ambiguous and that there was a mistaken interpretation of the Manual.

The appellant judge noted that if the Manual was ambiguous then it may be suggested that the principal attending ambulance officer was not negligent. However, the appellant judge rejected that the Manual was relevantly ambiguous and that the conduct of the principal attending ambulance officer could not be excused on the basis of a reasonable but mistaken interpretation of the Manual.

Ultimately, it was held that there was not consistent with the standard of care owed to Ms Masson for the principal attending ambulance officer to use a less effective drug for a patient in Ms Masson’s critical condition.

The appellant judge confirmed that the trial judge had erred in not finding the attending ambulance officer negligent in not administering adrenaline at the outset.

The QAS did not challenge that if adrenaline was administered at the outset, the injury to Ms Masson would have been avoided.

Therefore, the appellant judge held the QAS vicariously liable for the attending ambulance officer’s negligence.

In summary, the appellant judge found that:

1.Ms Masson was not treated in accordance with the CPM;

2.The use of adrenaline was not considered by the attending ambulance officer as required by the flowchart

3.If adrenaline was considered at all, it was inconsistent with the Manual to administer twice the permitted dosage of salbutamol in the hope that this would be as effective as the administration of adrenaline;

4.The principal attending ambulance officer was negligent as there was no basis that was consistent with the standard of care owed to Ms Masson, and the attending ambulance officer should have known that salbutamol was a less effective drug for a patient in Ms Masson’s condition; and

5.The amount of damages was agreed at $3 million dollars to be paid to the deceased’s estate.

 

Conclusion

While nothing can really compensate for the loss of a person or their quality of life, this matter should serve as hope that someone might be held accountable for that loss, which may provide some much needed financial support or closure to those affected.

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