Plaintiff discharged from hospital whilst sedated and allowed to drive a motor vehicle: Naidoo v Brisbane Waters Administration Pty Ltd t/as Brisbane Waters Private Hospital

Background

This case concerns the plaintiff, Ms Naidoo, a 52-year-old registered nurse bringing action against Brisbane Waters Private Hospital (the hospital, first defendant) and Dr Larissa Grund (the psychiatrist, second defendant) in respect of injuries suffered as a consequence of a motor vehicle accident which occurred shortly after her discharge from the hospital on 17 January 2012.1 The essential allegation against the defendants is that, at the time of discharge, the plaintiff was suffering from tiredness, drowsiness and/or sedation and ought not to have been permitted to drive her motor vehicle home from the hospital at Woy Woy to her home at Wyong, some 50 km away.2

The plaintiff during her admission was suffering from insomnia and consequently extreme fatigue. According to the medical evidence, the plaintiff had a history of sleep disturbance. On the day before the plaintiff was discharged, she had spent the majority of her time in bed. On the morning of her discharge, having being woken by staff at breakfast, the plaintiff fell asleep over her breakfast. Nursing staff tried to wake her on several occasions throughout the morning of 17 January 2012 but the plaintiff fell back to sleep again.3 The plaintiff's bags were packed for her by staff and placed in her car, she had a cold shower to attempt to wake herself up and her car was brought around to the hospital and her keys handed to her on discharge.4

The plaintiff left the hospital, embarking on a 50-km drive home. At the time when she was discharged, the plaintiff was on a combination of several psychotropic drugs, including OxyContin, Diazepam and Zolpidem.5

The plaintiff told the court that she remembered turning into a street parallel to her street but could not recall what then happened as she "blacked out". She told the court:

I remember waking up to my head hitting the roof and the car was airborne and I black [sic] out again. The next thing was when the ambulance was there scooping up the teeth ... 6 The plaintiff later was told by emergency services that she had driven off the road and into a wall.7 The court found that the accident and the harm to the plaintiff was caused by her falling asleep whilst driving.8

Particulars of negligence

The particulars of negligence alleged jointly against both defendants were:9

failing to take an adequate history from the plaintiff; failing to consult the plaintiff's clinical record; failing to observe the effect on the plaintiff of the medication; failing to monitor the plaintiff while taking the medication; failing to observe the plaintiff's condition before discharging her from its care; failing to ascertain the means whereby the plaintiff was journeying home from the hospital; furnishing the plaintiff's car keys to her at the time of her discharge from its care; inviting the plaintiff to operate a motor vehicle immediately upon her discharge from its care; failing to warn the plaintiff that potential effects on her of taking the medication were cognitive impairment and sedation; failing to warn the plaintiff that a potential effect on her of taking duloxetine was a seizure; failing to caution the plaintiff not to attempt to operate a motor vehicle while under the effect of the medication; failing to caution the plaintiff not to attempt to drive a motor vehicle from the hospital to Wyong while under the effect of the medication. Ultimately, (a) through (c) were accepted by the court as a breach of duty by the psychiatrist. Particular (d) was not made out and was held not to be causally relevant.10

Particulars of negligence (f) through (l) were made against both defendants, with the exception of (i) where the court was unsure if the allegation was made out but nevertheless stated it was incumbent on both defendants to ensure the plaintiff was aware of the risk of driving the motor vehicle whilst taking sedative medication.11 Particular of negligence (j) was not made out as the evidence did not support the finding.12

Cross-claims

First defendant's cross-claim

Part of the hospital's case was a claim that, if found liable, then it looked to the psychiatrist for contribution and/or indemnity. In addition to the negligence pleaded against the psychiatrist in the Third Amended Statement of Claim, the cross-claim proceeded on the basis that the psychiatrist was responsible for the plaintiff's medical management and had approved the plaintiff to drive her car prior to discharge in circumstances where the psychiatrist was aware of the medications which had been prescribed to the plaintiff.13

Second defendant's cross-claim

By cross-claim against the hospital, the psychiatrist sought indemnity and/or contribution from the hospital on the grounds alleged against the hospital.14

Evidence

Briefly touching upon the evidence, the court accepted...