$100,000 fine for nitrous oxide mix-up fatality and serious injury

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Monday, 18 May, 2020 - 13:45
Incidents & prosecutions
New South Wales

A hospital employee was recently convicted and fined $100,000 after pleading guilty to a breach of the Work Health and Safety Act 2011 after the death of one baby and serious injury of another at Bankstown-Lidcombe Hospital in 2016.

Christopher Turner was charged with a failure to comply with his obligations as a worker under section 28(b) of the Act.

He was one of several parties SafeWork NSW began action against after it was discovered that nitrous oxide and oxygen lines had been cross-connected and the testing that could have prevented the tragedies was not properly carried out.

One of the babies suffered serious injuries when she was given the nitrous oxide during resuscitation.

The other baby died following the administration of nitrous oxide instead of oxygen from the neonatal gas system.

In 2018 SafeWork began prosecution proceedings against five parties for alleged breaches of the Act, said Valerie Griswold, executive director of investigation and enforcement for SafeWork NSW.

“Two of these matters proceeded to a hearing at court, being the cases against installation company BOC Limited and its contractor Christopher Turner,” Griswold said.

The cases against two other defendants were discontinued for legal reasons.

The case against another party, South Western Sydney Local Health District, was discontinued when it entered an enforceable undertaking with SafeWork as an alternative to prosecution.

“The enforceable undertaking has a value of $536,500 and will include the rollout of an electronic contractor registration kiosk in acute facilities across South Western Sydney Local Health District as well as a new department-wide risk information system which will enable learnings and experience to be shared with all NSW Health entities.”

On 30 April 2020, the District Court found the case against BOC had not been proved to the required criminal standard and final orders were stood over until 1 June.

“SafeWork is now considering the judgment in that matter and whether it will lodge an appeal.”

The case against the defendant Christopher Turner, a contractor for BOC, asserted that in 2015 during the installation of oxygen and nitrous oxide gas pipes into a neonatal theatre, the defendant completed the testing forms without conducting the cross-connection and gas purity identification test.

During the year, between the work being done in 2015 and the incidents in 2016, the gas outlet was operational.

“There were 438 emergency caesarean deliveries at the hospital that year and 36 babies were born in the operating theatre affected by the cross-connection,” Ms Griswold said.

“Because that particular theatre was the furthest from the birthing suites it was not used as often and only two babies required resuscitation, both within one month of each other.

“It was not until the death of the second baby that the issue with the resuscitation gas outlets was discovered and use of the theatre promptly suspended.”

Christopher Turner has the right to appeal his sentence.