Author: Ashleigh Clancy   
Judgment Date: 10 November 2017
Citation: Ogar Denkha by his tutor Georgees Denkha V South Western Sydney Local Health District 2015/371879
Jurisdiction: District Court of New South Wales at Sydney
Principles
  • The KD diagnostic criteria and treatment recommendations are set out in the American Heart Association paediatrics guideline Newburger JW, Takahashi M, Gerber MA et al, Diagnosis, treatment, and long-term management of Kawasaki Disease, 2004 (Newburger 2004).
  • The acceptable treatment for KD is to administer Immunoglobulin (IVIG) within 10 days of fever / illness. IVIG was administered at Day 9.
  • It was reasonable for the Hospital to take the precaution of not administering IVIG prior to 26 December 2012 (Day 9 of the plaintiff’s fever / illness). Up until that time, the plaintiff presented with a wide range of varied and compounding symptoms, some of which were consistent with KD but were also consistent with other ailments.
Background

KD is systemic vasculitis (inflammation of the blood vessels). It is an uncommon but not rare childhood illness, which usually affects children under five years of age. The cause is not known. It is difficult to diagnose as many features are shared by other more common illnesses.

The then aged 6½‑year‑old plaintiff was admitted to the Hospital on 21 December 2012 (Day 3 of fever / illness). A provisional diagnosis of viral infection was made. From at least the afternoon of 22 December 2012 (Day 4) however, a possible diagnosis of KD was being considered by Hospital staff. The plaintiff’s potential other diagnoses included pancreatitis, hepatitis, juvenile rheumatoid arthritis and post viral synovitis of the hips.

The plaintiff alleged that the Hospital negligently failed to diagnose KD between 22 December 2012 (Day 4) and 26 December 2012 (Day 8).

He was subsequently diagnosed with KD at The Children’s Hospital at Westmead (WCH), where he was administered IVIG on 27 December 2012 (Day 9).

On 3 January 2013, the plaintiff was diagnosed with giant coronary artery aneurysms.

Newburger 2004 states that the clinical criteria for diagnosing KD are the presence of high-spiking and remittent / fluctuating fever for greater than five days and the presence of four of the five clinical features which are conjunctivitis, changes in the extremities, rash, swollen lymph node in the neck and changes in the lips and oral cavity including dry cracked lips and strawberry tongue.

The plaintiff’s presentation of KD was highly unusual. He was older than usual for a child affected by KD, his fever was not a high‑swinging fever, his fever abated completely for approximately 40 hours without the effects of antipyretic medication (KD fever generally lasts for 11 days without IVIG treatment), he had a slightly red palm but no desquamation of his hands or feet or swelling, his rash was fleeting, he did not have cervical lymphadenopathy at any stage and his oral symptoms were not particularly obvious.

Duty of Care

The plaintiff contended that the defendant had a duty to diagnose the plaintiff with KD and treat him with IVIG on or shortly after 22 December 2012 (Day 4).

The defendant articulated the duty as one which required in the care of the plaintiff the exercise of the reasonable care and skill of an ordinarily skilled Paediatrician exercising his or her skill and judgment in the examination, diagnosis and treatment of the plaintiff.

Breach

Her Honour found that the Hospital discharged its duty to the plaintiff by taking reasonable, diligent and appropriate steps to diagnose the plaintiff’s condition. In this case, given the plaintiff’s unusual presentation, Hospital staff were required to repeatedly look for the signs of KD and consider its possibility (which they did as early as 22 December 2012 (Day 4)) and thereafter to continually consider KD together with the symptoms that pointed towards other diagnoses, and to use their best endeavours to diagnose the plaintiff.

The plaintiff did not establish that a reasonable person in the position of the medical practitioners at the Hospital would have taken the precaution of commencing IVIG by 22 December 2012 (Day 4) or at any point prior to 26 December 2012 (Day 8), when he was discharged.

Causation

The plaintiff contended that as a result of KD he developed coronary aneurysms for which he will need ongoing monitoring and treatment with Warfarin. He asserted that if he had been given IVIG earlier, the aneurysms would not have occurred.

Her Honour found that it is not possible to say in this case whether receiving the IVIG earlier would have made any difference at all.

There is no direct evidence that had the plaintiff been treated at any time earlier, the injury would either not have occurred or would have been lessened. The risk of any injury prior to 10 days was not foreseeable.

The plaintiff was in the group that received IVIG and nonetheless developed giant aneurysms. There is no way of knowing whether this is because he had already developed the aneurysms or because he was within the category of children who would not have responded even if the IVIG had been administered earlier.

The plaintiff failed to establish on the balance of probabilities that earlier IVIG would have avoided coronary artery damage.

Damages

Her Honour did not make any findings regarding damages given the verdict and judgment in favour of the defendant.

Decision

Her Honour made the following orders:

  1. Verdict and judgment in favour of the defendant.
  2. The plaintiff is to pay the defendant’s costs of the proceedings.
  3. Liberty to the parties to apply within seven days as to any further orders for costs.
Why this case is important

Her Honour found that the Hospital’s Section 5(O) defence was made out. The Hospital acted in a manner that accorded with an identified practice that was widely accepted by peer professional opinion and widely accepted as competent. The Hospital’s management of the plaintiff’s illness therefore accorded with widely accepted standard professional conduct.

 

 

Disclaimer

All materials on this site have been prepared by Curwoods Lawyers for informational purposes only and are not legal advice.

This information is not intended to create, and receipt of it does not constitute a lawyer-client relationship.

Internet subscribers and online readers should not act upon this information without seeking professional counsel.