A woman who had a piece of surgical equipment get stuck in her femur and break during hip surgery at Bega hospital is suing for negligence.
A Supreme Court judge last week gave leave for the woman to amend her claim ahead of an official hearing over the incident that occurred in 2010.
In August of that year, Jennifer McGarry was undergoing a hip replacement at the now defunct Bega District Hospital, performed by orthopaedic surgeon Matthew Nott.
One of the instruments Dr Nott employed was a rasp used for scraping the surface of a bone.
In her claim, Ms McGarry alleged during the surgery the rasp became lodged in her femur and its handle broke off.
Further surgical intervention was required, allegedly to the detriment of Ms McGarry’s health.
She is suing the Southern NSW Local Health District, Dr Nott, and also Stryker Australia – the manufacturer of the rasp.
The hospital has cross-claimed against Stryker, as has Dr Nott.
Ms McGarry’s claim for negligence is that the hospital “failed to have in place an appropriate system for the care and maintenance of surgical instruments” and an allegation that Dr Nott “used excessive force when manipulating the rasp”.
Ms McGarry first filed a claim in March 2011 in the District Court of NSW.
However, the matter was heard in the Supreme Court last week, March 27, with Ms McGarry seeking to expand her claim to incorporate the above allegations.
Despite arguments from Dr Nott and the LHD against granting leave for Ms McGarry to amend her claim, her application was granted.
Included in the arguments put forward by Dr Nott was that the rasp in question had been in the possession of Ms McGarry’s solicitor, but has been lost.
In response, Justice Button said the loss of the rasp “is undoubtedly concerning”.
“But the forensic disadvantage suffered by the second defendant [Dr Nott] will surely be reflected upon by the trial judge.
“And as the High Court of Australia made clear...except in most unusual circumstances, a trial that suffers from the unavailability of evidence should nevertheless proceed.”
The full judgement can be read on the NSW Caselaw website.
The hearing date is set for August 7, 2017.