By Peter Rout, barrister/doctor, Sydney

In 1987 graphic designer Sha Cheng Wang aged 29 came to Australia from Shanghai. He did not speak English, bu quickly obtained employment as a graphic artist with a Chinese-language newspaper in Sydney. Around 8 pm on 18 April 1988 he was assaulted and robbed whilst walking home from the railway station. He suffered an extensive bleeding head wound and reported to his flatmates he had been struck with a heavy object, possibly an iron bar. They took him to the nearby University of Sydney teaching hospital. There at 2125 he was seen by a triage nurse hours who noted there had been ?LOC (loss of consciousness). By 2300 hours Wang and his friends, frustrated at still being unassessed and unseen, left the hospital and attended at a local private 24-hour clinic. There Dr Andrew Katelaris diagnosed concussion, sutured his head wound and administered a tetanus toxoid injection. On returning home his flatmates fed him and put him to bed. Around 3 am after observing him to be unrousable and apparently having a seizure they called an ambulance. On arrival back at the hospital at 4 am, a fractured skull and bilateral epidural haemorrhage were diagnosed. The outcome was poor with Wang living in a nursing home with spastic quadriplegia, unable to walk, speak, or care for himself. His life is now spent sitting on a couch watching television or listening to Chinese-language radio.

Wang through his father sued the hospital, Dr Katelaris and the owners of the Clinic. The hearing before Justice Peter Hidden in 1999 took 20 hearing days on liability only.

On 9 June 2000 Hidden J. handed down his 32 page judgment. His Honour found the hospital negligent stating:-

"The Central Sydney Area Health Service, which administers the Royal Prince Alfred Hospital, is a statutory authority whose duty was to take reasonable care for the plaintiff’s well-being in the circumstances, with the limits of its resources….(T)he primary duty which the hospital owed to the plaintiff was to assign him his appropriate priority through the triage system and to observe him in the waiting area in case his condition deteriorated.… In my view, that duty extended to furnishing the plaintiff with appropriate advice when it was intimated that the might leave the hospital. The hospital failed to discharge that duty, and the plaintiff’s present condition is attributable to that failure." - Sha Cheng Wang by his tutor Professor Ru Bo Wang v. Central Sydney Area Health Service, Dr Andrew Katelaris & Super Clinics Australia Pty Ltd [2000] NSWSC 515 CLD 017083/90.

His Honour refused to find Dr Katelaris or the Clinic negligent for failing to keep Wang under observation for 4 hours, finding the Clinic was not equipped for such procedure, with only a doctor and receptionist on duty. In those circumstances it was appropriate to discharge him under his friends’ supervision with appropriate advice which he found was given.

Dr Katelaris, who at an earlier stage of his medical career had had "dealings with his medical indemnity insurer" represented himself. In his judgment Hidden J. described Dr Katelaris as

"…a robust advocate in his own cause….there were some episodes of irascible or confrontational behaviour on his part, including some memorable exchanges with senior counsel for the plaintiff….allowance must be made for the fact that he was involved, without the benefit of legal representation, in lengthy and complex litigation which could have dire consequences for him, both personally and professionally."

Seconds after His Honour had handed down judgment and left the courtroom, Dr Katelaris struck senior counsel for the plaintiff, Ken Horler QC, with a rolled up copy of the judgment causing Mr Horler to double over, strike his head on the bar table and lose his glasses and wig. Amid yelling the judge’s associate pressed the distress button, and His Honour rushed back in to check on Mr Horler. The barrister reported he felt a "bit fizzy". "Doing murder trials is easier than appearing against doctors" he said. His Honour later excused Mr Horler from another trial after being told he had a headache and a swollen nose.

As Dr Katelaris waited for the lift to leave the building, he yelled insults at Mr Horler. Outside the court Dr Katelaris called for greater use of mediation in medical negligence cases to help reduce the emotional and financial cost on doctors. Dr Katelaris said he had made a "theatrical gesture" by "flicking" the barrister with a piece of paper. He said he was upset at the costs and time he had been required to put into his defence. "How do you quantify cost that have gone over 10 years of anxiety, the sort of thing that tears families apart," he said.

Mr Bruce Kelly, head sherriff of the NSW Sherriff’s Office sent a report of the incident to the Crown Solicitor’s office and to Supreme Court chief executive Ms Nerida Johnston. After representations from NSW Bar Association President Ms Ruth McColl SC, it is anticipated NSW Chief Justice Jim Spigelman will commence contempt of court proceedings against Dr Katelaris in the near future.