By Callum Ludwig
A request to reopen a coronial investigation into the death of a Maroondah Hospital patient nearly 20 years ago has been denied by the Supreme Court of Victoria.
General surgeon Doh Ong Hii sought to reopen the investigation into the death of Richard Keys on 18 December 2006, whom he had operated on back on 22 December 2005.
Mr Hii had previously tried to reopen the decision through the State Coroner in 2023 before appealing the decision to the Supreme Court. To be successful in reopening the investigation, Justice Forbes had to be convinced there were exceptional circumstances or that it was in the interests of justice to allow the case to be reopened.
Mr Hii performed an elective subtotal colectomy, where a large part of the colon is removed, on Mr Keys, after which he developed symptoms and was administered a resonium enema by a medical registrar. Mr Keys returned for a second surgery due to a anastomotic leak where his colon failed to heal, requiring an ileostomy (an alternative exit through the abdominal wall for faeces).
Mr Keys remained hospitalised at Maroondah Hospital continuously for almost the next year, with Mr Hii no longer involved in his care by November 2006. Mr Keys eventually suffered bleeding from the ileostomy site in early December and was transported to Box Hill Hospital for further investigation and a third surgery before he later deteriorated and died.
In February 2008, Coroner Hendtlass found consistent with an autopsy that Mr Keys had died due to ‘extensive complications of wound breakdown following subtotal colectomy’. Mr Hii was not involved in the original investigation and applied for the investigation to be reopened in 2019, believing the surgery went well and the enema, which was not authorised by him, was to blame.
Deputy State Coroner English found in 2021 that the anastomotic leak occurred sometime between 23 and 27 December 2005 and was not satisfied that the enema was the cause, despite it likely being an ‘inappropriate procedure’. The Deputy State Coroner also found there was no evidence that the complication was due to ‘substandard surgical practice’ from Mr Hii, but was simply an accepted possible complication of the procedure.
Mr Hii’s first dismissed appeal in 2022 was denied by Justice Gorton who wasn’t convinced that the leak was caused by the enema being administered or that the cause of death wasn’t a result of treatment Mr Keys received once at Box Hill Hospital.
In his most recent appeal, Mr Hii tried to argue that the matter should be reopened due to four factors:
The Box Hill Hospital records should be considered new evidence as they were not fully examined previously;
The description of the surgery performed at Box Hill Hospital was factually incorrect because there were two small bowel resections, not one;
Those who provided medical care in the six weeks up to the death of Mr Keys failed in their duty of care to medically manage him
Mr Hii’s colectomy was unrelated to Mr Key’s death, which was rather caused by excessive bleeding from concurrent surgeries at Box Hill Hospital.
Mr Hii also claimed he had suffered reputational damage from his surgery being attributed to the cause of death, not helped by an alleged ‘finding of guilt’ in the coroner’s report.
Considering the substance of the appeal despite Mr Hii filing late and not producing satisfactory conditions for an extension of time, Justice Forbes said there is nothing further that demonstrates it would be in the interests of justice to revisit the DSC English finding.
“Mr Hii’s contentions about the events at Box Hill Hospital are submissions. They were not accompanied by any new evidence that supported his submission as to the alternate cause of death. His opinions, as a surgeon involved in Mr Keys care in 2005, may be informed by his own surgical knowledge. However, his opinions themselves do not compel a conclusion that the State Coroner’s refusal to re-open the investigation is erroneous as a matter of law,” the decision reads.
“The length of time since the death, the opposition by the family to the matter being further investigated, the lack of identification of a systemic health issue that would be relevant today, and the prior history of two coronial investigations all point away from a conclusion that it is desirable to re-open the investigation again in the interests of justice. It follows that I have not accepted that the past investigations have been inadequate or misguided in the ways alleged by Mr Hii,”
“No coroner has made a finding adverse to Mr Hii. Nor was there a statement of ‘guilt’ in the Hendtlass finding. The submission that the cause of death as found is ‘wrong’ misunderstands, or does not accept, Gorton J’s comments on causation. As his Honour’s reasons have set out, there may be a number of factors in a medical chain of events that lead to death. That chain of events, and the Coroner’s identification of the factor or factors that deviate from the expected course, is not an exercise in identifying legal fault for a death.”
