Stefanyszyn v Brown; Brown v Newcastle Private Hospital Pty Limited t/as Newcastle Private Hospital [2016] NSWSC 826

29 September 2016

This case concerns the death of Colleen Stefanyszyn on 5 December 2008 after elective surgery performed by Dr Oliver Brown at Newcastle Private Hospital on 1 December 2008.

Proceedings were brought by Mrs Stefanyszyn’s husband and two daughters under the Compensation to Relatives Act 1897 (NSW), and they also brought claims for nervous shock. The defendant to the claim was Dr Brown.

Their claims were settled prior to the hearing on terms which the Hospital accepted were appropriate.

This Supreme Court judgment concerns a cross-claim brought by Dr Brown against the Hospital for contribution and deals with the nature and the scope of duties owed to a patient.


On 1 December 2008, Colleen Stefanyszyn underwent surgery performed by Dr Brown (her treating doctor) at Newcastle Private Hospital (‘the Hospital‘). During the operation, a loop of suture material was inadvertently looped around Mrs Stefanyszyn’s bowel and was not discovered until after her death. Post-operatively, the blockage was not identified or addressed, infection set in, she repeatedly vomited faecal material, inhaled some of that material with resulting pneumonia, her electrolytic balance became disordered, her oxygen levels deteriorated and on 5 December 2009, she suffered a fatal cardiac arrest.

The cross-claim

Dr Brown accepted that he bore the major responsibility for the cause of Mrs Stefanyszyn’s death but claimed that the Hospital also contributed to her death. Dr Brown alleged that the Hospital, in breach of its duty of care, failed to ensure that (i) the post-operative observations, including the four hourly graphic chart and clinical pathway documents and fluid charts were completed, (ii) post-operative observations were recorded at specific times and (iii) there was no clinical pathway document on 6 December.

Dr Brown also claimed that the result was that nursing staff were unable to determine (i) whether Mrs Stefanyszyn had deviated from recovery pathway, (ii) that her condition had deteriorated, (iii) that she had become dehydrated and (iv) whether she had an appropriate electrolytic balance. He claimed, as a result, he was also unable to properly assess her condition.

Non-delegable duty of care

The Hospital admitted certain non-delegable breaches of the post operative care provided to Mrs Stefanyszyn, however not all. The Hospital assessed its contribution at no more than 5%.

The Hospital sought to rely on the “Ellis disclaimer” signed by the patient by which she acknowledged, amongst other things, that she would not hold the hospital responsible or liable for any injury caused by the negligence or breach of her private treating doctor.  The Ellis disclaimer was noted by Justice Schmidt to be relevant to a determination of the duties which the doctor and the Hospital each owed to Mrs Stefanyszyn.  However, Justice Schmidt  ultimately found that the Hospital’s duty was broader than it contended in the disclaimer.

The Hospital submitted that it was “assisting” Dr Brown in Mrs Stefanyszyn’s management, and the Hospital relied on views expressed by two of its experts, that the Hospital’s burden or responsibility passed at certain points to Dr Brown.

Justice Schmidt noted that while the Hospital’s and Dr Brown’s duties overlapped, both Dr Brown and the Hospital each independently owed Mrs Stefanyszyn a duty of care, and their duties never passed from one to the other. The duty of care owed by the Hospital to Mrs Stefanyszyn was stringent, irrespective of acts or omissions on Dr Brown’s part.

Justice Schmidt concluded that the scope of the Hospital’s duty was to provide Mrs Stefanyszyn with all services during her post-operative care at the Hospital including by nursing and paramedical staff, and members of the clinical team it assigned. Such services should have been provided in accordance with the Hospital’s policies, including clinical pathways guidelines, while Mrs Stefanyszyn was admitted to its facilities.

Justice Schmidt held that evidence established that the Hospital failed in its duty to provide the services which Mrs Stefanyszyn required, and its negligence was more extensive than it was prepared to admit. Deficiencies included that required observations were not taken, or recorded by the Hospital’s staff, as its duty to Mrs Stefanyszyn required. Nor did they take other steps required by the Hospital’s own policies, including the clinical pathways guidelines.

Justice Schmidt was satisfied that all of the evidence established, on the balance of probabilities that the Hospital’s failures did create, or at least increase, the risk of injury which resulted in Mrs Stefanyszyn’s death, and materially contributed to the death which resulted from both its failures and those of Dr Brown. Apportionment of liability to the hospital was assessed to be 20%.

The rule in Jones v Dunkel (1959) 101 CLR 298

Justice Schmidt also dealt with issues as to Jones v Dunkel (1959) 101 CLR 298 inferences. Dr Brown was not called to give evidence and Justice Schmidt found that the inference which must be drawn is that Dr Brown’s evidence would not have assisted the case which he advanced.

The Hospital also failed to call evidence from those involved in Mrs Stefanyszyn’s care, and the Hospital failed to produce a relevant document, the Hospital’s policies manual, which had been subpoenaed. Justice Schmidt found that the inference which must be drawn is that their evidence and the document would not have assisted its case.


This decision highlights that a Hospital has an independent, stringent, non-delegable duty of care to provide a patient, admitted to its facilities, with services in accordance with its policies and the appropriate standard of care. This duty is separate from a private medical practitioner’s duty, and never passes from a Hospital to a private medical practitioner.

In providing the services required by such a duty of care, a Hospital should ensure that a patient receives treatment that is required. This includes making required observations and recording such observations, notifying the treating doctor or a doctor on staff if a patient deviates from the expected pathway, or is identified as deteriorating, so as to ensure the patient is attended to, assessed and investigations are pursued.

This article was written by Brit Mainhoff, Partner and Katie McCarty, solicitor.

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