Court rules against hospital inquiry into Lima Thatcher's death

Elderly dementia sufferer Lima Ray Thatcher was admitted to the hospital in February 2011 after falling and fracturing her hip and neck at an aged care home in Yass.

But, in a catastrophic mistake, doctors carried out replacement surgery on the wrong hip, only realising their mistake halfway through the operation. They kept the woman under the same anaesthetic and proceeded to replace the correct hip.

But the 86-year-old never recovered from the 3½-hour procedure, which would have taken less than half the time if no mistake had been made. Mrs Thatcher died nine days later and an autopsy found she died of heart disease.

It later emerged that the blunder had occurred because a form had not been filled out correctly, wrongly stating the fracture was to the left femur, instead of the right.

The family first became aware of the surgery when Mrs Thatcher's daughter was contacted midway through the operation to be told that a mistake had been made.

Medical staff at Canberra Hospital then met with the family, telling them the surgery was successful and that there had been no complications. But they said that Mrs Thatcher was experiencing a loss of consciousness, which was common for older patients after surgery.

She also suffered from hypertension, diabetes, dementia and cardiac problems, and doctors warned that, even without those conditions and the mistake that was made, there was only a 50 per cent chance she would live another 12 months.

The death was later referred to the ACT Coroner who, in this case, was Magistrate Peter Dingwall.

Mr Dingwall ruled that the manner and cause of death was sufficiently explained, including by the autopsy, and decided against holding a hearing. But the family applied to the ACT Supreme Court to have the coroner hold a hearing.

They also sought to have the court force the ACT government to set up an independent board of inquiry to look into the death. Mrs Thatcher's granddaughters applied to the court to declare that their grandmother's rights had been breached and that she was subjected to medical treatment without her consent.

But Supreme Court Master David Harper, in a judgment published this week, found against the family on all of their applications. He said there was no evidence before him that the medical mistake actually caused Mrs Thatcher's death. ''Certainly there was no such evidence before the coroner, who, it seems to me, did what he was required by the [Coroner's] Act to do,'' Master Harper wrote. ''The fact that a mistake had been made during the surgery nine days earlier was deeply regrettable and understandably shocking for the family, but on the material before Mr Dingwall, it was not connected with the death of the deceased.''

That led Master Harper to reject the family's application for the Supreme Court to order a coronial hearing be held. Master Harper also found that he could not compel the ACT government to set up a board of inquiry to look into the circumstances surrounding the death. The court similarly found against the family on the human rights issues.

Master Harper said that, despite the family taking the ACT government to court, the doctor and anaesthetist were private practitioners. He said it had not been alleged the government was vicariously liable for the actions of the surgeon or that the doctor was caught by the Human Rights Act.

He also found the granddaughters, who were plaintiffs, could not be considered victims of a contravention of the grandmother's human rights.

''The deceased, if she were alive, would be a victim,'' he wrote. Master Harper said that meant the granddaughters ''cannot succeed'' in their bid for relief for a breach of their grandmother's human rights.