All At Sea – Medical Negligence by a Doctor During a Cruise

While outcomes in medical negligence compensation claims can be uncertain and difficult to predict, a recent case demonstrates that well established principles of medical negligence apply even in novel or unusual circumstances.

They also act as a reminder that how and where an injury occurs can be as important in assessing the loss and damage caused by the negligence of a medical practitioner.

In the case of Waine v Carnival (P&O Cruises), the Plaintiff sued for damages for medical negligence as a result of the advice and treatment provided by the medical officers on a cruise ship.

Finding in her favour, the Court awarded her $326,122 in compensation.

In April 2018 Ms Waine was a passenger on a P&O Cruise with her husband and 1 year old son, travelling from Sydney to Noumea. She was pregnant.

Prior to boarding the ship, Ms Waine had obtained all relevant clearances for her travel with her doctors in Australia, and had disclosed and obtained approval for travel from P&O.

On the afternoon of 3 April 2018, Ms Waine boarded the ship in Sydney. Later that evening she noticed concerning symptoms.

She presented to the ship’s doctor, Dr Pretorious, on 4 April 2018 and again on 6 April 2018.

She asked for an ultrasound but there was no ultrasound on board the ship.

She received medical advice in Noumea but was not offered medical treatment.

On her way home, she suffered a sudden and public miscarriage in the Auckland Airport.

Ms Waine claimed that as a result of the inaction and advice provided by the ship’s doctor – Dr Pretorious – she suffered substantial psychological injury.

Interestingly, Ms Waine’s claim did not rely on her proving that she would have avoided the miscarriage altogether, but that if she had received reasonable medical care, she would have avoided suffering the miscarriage in the circumstances in which she did: with heavy bleeding and a medical emergency in Auckland Airport.

She made a claim in negligence, breach of contract and for breaches of Australian Consumer Law.

The Defendant denied that the treatment provided to Ms Waine was below a reasonable standard or that it was in breach of its duties under the contract or Australian Consumer Law. It also claimed that Ms Waine contributed to the injury by failing to accept and act on the medical advice of the ship’s doctor.

At the heart of the case was a factual dispute about what Ms Waine and the ship’s doctor knew, said and did at 2 medical attendances on board the ship prior to Ms Waine’s medical emergency.

Critically, the medical notes and the evidence provided by Dr Pretorious were not preferred by the Court – instead largely accepting the account of events provided by Ms Waine.

The Court was critical of the evidence provided by Dr Pretorious, noting that his evidence:

“often lapsed into giving advice rather than testifying of what was said between himself and Ms Waine”, and that the evidence he gave in Court was not consistent with his notes.

The Court found that Dr Pretorious had breached his duty of care to Ms Waine by failing to discuss with her:

• the risks of miscarriage;
• the options for treatment in Noumea;
• the option to fly back to Australia for treatment; or
• the need for an urgent ultrasound.

The Court found that the consequence of that negligence was that Ms Wayne suffered a medical emergency in an “uncontrolled environment” (i.e. Auckland Airport) rather than as part of medical treatment in a hospital.

The Court awarded compensation for medical negligence in the amount of $326,122. The Defendant was also required to pay the costs of the Plaintiff in bringing the claim.

The Court refused to reduce the damages for any contributory negligence by Ms Waine, rejecting the Defendant’s argument that she had failed to reasonably follow medical advice. Rather, the Court concluded that Ms Wayne was not properly advised by Dr Pretorious, and if properly advised would have followed that advice.

Although the circumstances in this case are novel, the basic elements of a successful medical negligence claim remain the same. The key test in this case was whether the advice and treatment provided by Dr Pretorious fell below a reasonable standard of care. Dr Pretorious was not required to provide perfect care, but only treatment and advice to a reasonable standard, without the benefit of hindsight.

The decision reinforces that a medical facility will rarely be criticised or held liable for a failure to carry expensive or specialist equipment. In this case, an ultrasound machine onboard the ship would have been a highly valuable piece of equipment, however, the Court was not critical of the Defendant’s decision not to purchase and maintain such a piece of equipment. Criticism of Dr Pretorious’s treatment and advice was based on the information and resources available to him, not based on the facilities that would have been available in a perfect world.

Of critical importance for both injured patients and health providers is that a claim for medical negligence compensation, win or lose, is based on the way that a Court values the evidence. The assumptions made by a party or an expert witness can radically affect the outcome of the case. Each party should be very careful to ensure that the assumptions that they ask an expert witness and the Court to make, are well founded in primary evidence such as the medical records or notes made close to the time of treatment.

In a factual dispute, medical practitioners will generally need to rely heavily on records and notes made at or shortly after the medical treatment. Dr Pretorious was criticised for attempting to “fill in the gaps” between his notes and his evidence in Court.

The old adage among insurers is “good medical notes = good defence, no notes = no defence”. To add to this: poor or incomplete medical notes will result in a defence which rests on a very shaky foundation.

Lastly, the case is a useful reminder that it is not necessary for a Plaintiff to prove that all of their loss or damage would have been avoided with reasonable treatment. No amount of reasonable treatment could have prevented Ms Waine from having a miscarriage.

However, the negligence of the Defendant caused that miscarriage to occur in circumstances which were deeply traumatic for Ms Waine, causing her to suffer psychological injury and losses that would have been likely avoided if she had received reasonable care and advice.

Claims for compensation for medical negligence can be difficult, and as a result, you need the best medical negligence lawyer to carefully prepare and pursue your claim for compensation. Whether the circumstances are novel or not, there are fundamental principles that apply to any case, but the way that the facts and evidence are assembled can be the difference between winning and losing your claim for compensation.