Surgery resulting in battery and negligence – Who is at fault?


On 7 June 2010, the plaintiff underwent surgery at Wagga Wagga Base Hospital for the repair of an incisional hernia with placement of a surgical mesh. A seroma developed, which resulted in another surgery with application of a VAC dressing on 15 June 2010. A third surgery was carried out on 27 June 2010 to close the abdominal cavity which accommodated the VAC dressing.

By 16 July 2010, when the plaintiff was admitted to Calvary Hospital, she had developed a severe infection associated with the surgical mesh that had been placed over the hernia dissection.

The plaintiff commenced proceedings against the defendant for personal injuries suffered as a result of complications of surgery, claiming battery and negligence.

Battery claim

The plaintiff alleged that she did not consent to surgical registrar Dr Gundara performing the first operation and that this amounted to battery.

The court considered whether the plaintiff was mistaken in believing the operation would only be performed by Dr Payne, specialist general surgeon. The plaintiff had signed a consent form which stated that the procedure may be performed by another doctor, and this satisfied the judge that the plaintiff’s consent extended to the involvement of Dr Gundara. The court noted that the relevant consent is to the nature and character of the act (surgery) and that the identity of the surgeon may be relevant to the question but not in absolute terms. Rather, the real question concerned the requisite professional qualifications, which Dr Gundara held. Therefore, the performance of the surgery by Dr Gundara did not alter the nature and character of the surgery so that the plaintiff’s consent was confirmed and there was no battery.

Negligence claim

The plaintiff alleged that an ordinary specialist general surgeon would have taken the precaution of inserting negative pressure surgical drains to reduce the risk of developing a post-surgical infection. Further, she alleged that the surgeons should have diagnosed the presence of the infection and either removed the mesh or given her intravenous antibiotics for a prolonged period. The defendant argued that there was no established practice on the use of surgical drains.

The risk of infection was enhanced by the fact that the plaintiff was a smoker, obese, and because mesh repairs involve placing a foreign body deep in the patient’s abdomen. The peer medical experts agreed that the development of a post-surgical infection was not of itself evidence that the surgery was performed in a manner falling short of competent professional practice. Further, Dr Gundara took precautions to reduce the risk of infection, such as prescribing antibiotics. However, there were mixed opinions among the medical experts as to whether a surgical drain was in this instance required for competent professional practice to be established. The judge held that although there was no universal practice that surgical drains should be employed, there was wide acceptance that a drain should be used, and therefore a reasonable surgeon in Dr Payne’s position would have taken the precaution of employing negative pressure surgical drains. Therefore, the judge was satisfied that the risk of harm to the plaintiff which materialised was both foreseeable and not insignificant, and the defendant had breached its duty of care to the plaintiff.

The plaintiff also pressed claims in negligence regarding the second and third surgeries. The issue was whether Dr Payne should have diagnosed an infection and removed the mesh at the later surgeries, and if he had, would the plaintiff’s injuries have been less severe. The court reviewed medical notes, particularly of Dr Gamble who on examination found that the plaintiff had a mild wound infection six days post-operatively. The judge held on the balance of probabilities that a low grade infection was present and detectable on her first re-presentation, but as the modern day meshes are resistant to low grade infections, no breach of duty was established in the second surgery.

The plaintiff was then readmitted to the hospital for the closure of her abdominal wound. Dr Payne’s examination notes assessed her wound to be clean with no evidence of infection, however, she presented with swelling and pain around the wound, bleeding, nausea and fever. The judge held that on 3 July 2010 the plaintiff was suffering from obvious signs of wound infection, and in failing to identify the mesh infection and treat it more aggressively Dr Payne fell short of the standard of a surgeon of ordinary skill and competence, thereby breaching his duty to the plaintiff.

In terms of causation, the judge held that the relevant acts were causative of the plaintiff’s injuries.


The plaintiff claimed for the additional five surgeries she subsequently underwent, ongoing pain, discomfort and limitations due to her scar tissue, mechanical back pain and ongoing consequential psychological injury. She sought damages for non-economic loss, past and future out of pocket expenses, past and future domestic assistance and past and future economic loss.

Judgment was entered for the plaintiff in the sum of $1,005,509 plus costs.


The case reinforces the importance of surgeons assessing factors personal to the patient, such as smoking and obesity, in determining the precautions that should be taken to minimise the risk of post-surgical infection. This has important implications for medical specialists’ regarding their duty of care.

The case also highlights the importance of patients thoroughly reading and understanding consent forms before signing them. The plaintiff had signed a consent form which acknowledged that another surgeon may perform the surgery, and despite claiming that she did not actually read it in detail, she was bound by its terms.

Further, the case clarifies authorities on battery. The court held that any mistake as to the identity of the surgeon did not alter the nature and character of the act (surgery) so as to vitiate the patient’s consent. This has significant implications in situations where, for example, a patient consents to Dr A, a surgeon of ordinary skill and competence, performing an operation, who at the last minute and after the patient is under a general anaesthetic becomes unavailable, so that Dr B, also a surgeon of ordinary skill and competence, steps in. In this scenario, it could not be said that the plaintiff’s consent has been vitiated, as the relevant consent given is to the nature and character of the act, not the identity of the surgeon. Therefore, if a patient only wants a specific person performing the surgery, they need to ensure this is specifically documented.

Tinnock v Murrumbidgee Local Health District (No 6) [2017] NSWSC 1003 (28 July 2017)


Rachael Arnold

Rachael is a well-rounded and experienced insurance lawyer with a focus on general insurance and product liability.

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