| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : AMEDURI -v- JOONDALUP HOSPITAL PTY LTD [2011] WADC 214 CORAM : FENBURY DCJ HEARD : 20-23 JUNE 2011 DELIVERED : 30 NOVEMBER 2011 FILE NO/S : CIV 3289 of 2009 BETWEEN : MARIO AMEDURI Plaintiff
AND
JOONDALUP HOSPITAL PTY LTD
Defendant
Catchwords: Damages for personal injury through medical negligence - Liability - Turns on own facts Legislation: Nil Result: Claim dismissed
(Page 2)
Representation: Counsel:
Plaintiff : In person
Defendant : Mr P D Quinlan SC
Solicitors:
Plaintiff : Not applicable
Defendant : DLA Piper Australia
Case(s) referred to in judgment(s):
Nil
(Page 3)
The claim 1 Mr Mario Ameduri has brought a claim for damages against Joondalup Hospital Pty Ltd alleging that on 6 November 2006 its doctors were negligent in treating his injured left shoulder. 2 Mr Ameduri, 54 years of age at the time and 59 at trial, has worked hard all his life. He qualified and worked as a plumber for many years including in his own business. He suffered various experiences of misfortune including business failure and insolvency. He has also suffered loss through credit union collapse, marital breakdown and divorce. 3 Some years previously, Mr Ameduri sustained an injury to his right arm that left him with some loss of function. He believed that his disability was exacerbated by botched medical treatment. 4 On 6 November 2006, Mr Ameduri was working as a labourer for a business named Sunny Sides Malaga. He injured his left shoulder attempting to lift some heavy metal rods. His claim against his employer for compensation has been resolved. 5 Following the injury Mr Ameduri ended up at Joondalup Hospital and his shoulder was manipulated under sedation as if it had been dislocated. 6 It is Mr Ameduri's case that the manipulation was not necessary. He asserts that his injury was a tear to one of his shoulder tendons and that the unnecessary manipulation caused extensive further tearing. The damage to Mr Ameduri's shoulder tendons was later found to be irreparable. Mr Ameduri has a significant loss of function in the left shoulder. He has endured pain and suffering and loss of earning capacity and seeks damages.
Mr Ameduri's evidence 7 Mr Ameduri related that he broke his right arm when he was a child, suffering injury to his elbow. This occurred in Yarloop in Western Australia. He said that the doctor who treated him did not set it properly and he was in due course sent to Perth at Princess Margaret Hospital where the arm was rebroken. Apparently it again did not set properly and in the result Mr Ameduri's elbow showed obvious deformity. This was rectified, years later, by a medical practitioner Mr Ameduri named as (Page 4)
Pop O'Connor. Mr Ameduri described these events with obvious emotion. 8 Years later, apparently in about 1990, Mr Ameduri dislocated his right shoulder in a horse accident. He said this was why he was familiar with the sensation of a dislocated shoulder. He said he had never previously injured his left arm or left shoulder. He was right hand dominant. 9 Mr Ameduri described working for many years as a plumber and engaging in heavy physical work. He kept and raced horses. He described himself as being a very strong and powerful man when he was younger and I have no reason to doubt it. 10 Mr Ameduri commenced working with Sunny Signs in 2004. He described the work accident. He was lifting rods and he heard a crack and his left arm got 'a bit stiff' in seconds. He saw that there 'was blood under the skin'. 11 Mr Ameduri said that his nephew Jamie took him to Centrepoint Malaga where he saw a Dr Stanley. He said that he told Dr Stanley, and obviously the plaintiff himself believed, that he had torn something in his shoulder. 12 He was adamant that he had not dislocated his shoulder and he said that he repeatedly told the doctor. He said that he knew what a dislocated shoulder felt like and that his injury did not feel like that and that his shoulder was not dislocated. 13 Dr Stanley, and later at Joondalup Hospital Dr Hocking, were dubious about Mr Ameduri's opinion but felt that an x-ray should be obtained. Mr Ameduri was convinced he had torn his shoulder however in the face of medical opinion, he accepted that he may have dislocated it. He later agreed to a manipulation of the shoulder under general anaesthetic. 14 Mr Ameduri woke up in great pain after the procedure and was given further analgesia. He had another x-ray and was told that the shoulder was not dislocated. He was sent home and asked to return in seven days. 15 Mr Ameduri suffered a great deal of pain during that period and had extensive bruising down the entire length of his arm. He had throbbing pain throughout the week. There is no doubt that he had a most miserable time of it. (Page 5)
16 When Mr Ameduri returned to Joondalup Hospital after seven days, he saw a Dr Ricciardo. According to Mr Ameduri, Dr Ricciardo looked at x-rays and immediately referred Mr Ameduri to a 'shoulder specialist', Dr Trinajstic. 17 Mr Ameduri saw Dr Tinajstic a week later. Dr Trinajstic looked at the before and after x-rays and expressed the opinion that Mr Ameduri did not have a dislocated shoulder. Mr Ameduri underwent an MRI scan which revealed torn tendons in the shoulder. 18 Mr Ameduri underwent surgery to repair tendons but the procedure was unfortunately unsuccessful and he was left with significant permanent disability. 19 In emotional and torrential language Mr Ameduri gave vent to his feelings at what he believed to be botched medical treatment which he asserted was negligent. The nub of his complaint was that he was treated by a 'barely qualified' intern, an 'apprentice' for a non-existent shoulder dislocation and he suffered severe exacerbation and/or tears to the shoulder tendons as a result of an unnecessary manipulation. He alleges negligent misdiagnosis and negligent treatment. He complains of significant permanent loss of function in his shoulder. Although the extent of his disability has stabilised over recent years, he says that he has significant reduction in earning capacity. 20 In cross-examination Mr Ameduri rejected the suggestion that his shoulder 'looked' dislocated. During his evidence Mr Ameduri was upset and stressed and had memory problems for the detail. He felt that the extensive tendon damage was caused by the unnecessary manipulation under the general anaesthetic. 21 In re-examination Mr Ameduri repeatedly said that he knew that he had a tear and that he knew he did not have a shoulder dislocation. He was unshakeable in his belief that it was the manipulation that caused the shoulder damage to be made significantly worse and that his disability was primarily the result. 22 Mr Ameduri's nephew, Jamie Ameduri, gave evidence that he witnessed his uncle's shoulder being manipulated under the general anaesthetic. He concluded that, from his observations, the procedure caused his uncle so much pain that extra anaesthetic had to be administered to him. He also suggested that he saw very extensive discolouration and swelling shortly after the manipulation implying that, (Page 6)
according to his belief, this was when the tearing of his uncle's tendons occurred. 23 Mr Ameduri called evidence from Mr David Wright, a consultant orthopaedic surgeon, who wrote a number of reports which were tendered in evidence. Mr Wright was not Mr Ameduri's treating surgeon, but was engaged by the case service officer for workers' compensation claims for GIO Insurance. 24 Mr Wright first saw Mr Ameduri on 27 June 2007, seven and a half months after the incident. 25 In his first report of 29 June 2007 on page 4 par 9, Mr Wright in answer to the question 'in your opinion did the employment contribute significantly to the happening of the injuries? Please provide your reasons' answered: 26 In Mr Wright's third report being exhibit 3 dated 4 March 2011, he sought to clarify that comment, saying: I did not mean to imply that Mr Ameduri did not dislocate his shoulder. I believe that he did dislocate his shoulder on 6 November 2006 because: 1. It is a common condition which is visually obvious to an experienced medical practitioner. 2. A CT scan on 15 November 2006 showed a deformity of the humeral head consistent with a Hills-Sachs deformity which is diagnostic of a past dislocation of the shoulder. Mr Ameduri denied having had any trouble with his shoulder before 6 November 2006. The Hills-Sachs legion therefore was caused by the dislocation on that date. 3. At least 30% of people over 50 years of age who dislocate their shoulder sustain a rotator cuff tear at the same time. For those reasons I believe that Mr Ameduri dislocated his left shoulder and tore his rotator cuff on 6 November 2006. (Page 7)
27 Mr Wright made reference to earlier medical observations by Dr Strahn and Dr Hocking, who both felt that Mr Ameduri's shoulder presented, visually, with abnormalities. 28 In cross-examination Mr Wright repeated his comments that he had made in his reports above quoted. He said that an acute rotator cuff tear does not usually present with a deformed looking shoulder. He said that in many cases involving men of Mr Ameduri's age, the tear can be due to attrition and degenerative causes. He said that atrophy or wasting of muscle occurs over time and his opinion was that on the MRI there had been degeneration and muscle atrophy before 6 November 2006 and he suspects that pre-injury there was an asymptomatic rotator cuff tear. 29 Mr Wright also said that one cannot necessarily see a shoulder dislocation on an x-ray. He said that people with asymptomatic degenerative or heavy labour caused tears can more easily suffer dislocations and that sometimes x-rays do not show a dislocation. 30 On the issue of Mr Ameduri presenting with obvious deformity he said that enlocation would be the first medical procedure to be carried out by any medical operative, in his view, without any hesitation or question (refer ts 149 - 150). 31 With respect to the Milch manipulation that was carried out on Mr Ameduri's shoulder, under general anaesthetic, Mr Wright said that this was not a violent procedure and was in fact the gentlest procedure of its kind. He agreed that many non-medical people observing it being performed might feel ill. 32 Dr Ian Dey, a specialist in emergency medicine at Fremantle Hospital, gave evidence on behalf of the defendant. He had previously written a report dated 30 January 2011 which he prepared at the request of the defendant's solicitors. Dr Dey was not a treating medical practitioner but provided a medico-legal opinion. (Page 8)
33 I do not propose to refer at length to Dr Dey's report but I will set out what he said in the fourth paragraph on page 1 as follows: In summary I think it is highly likely that Mr Ameduri had pre-existing chronic rotator cuff degeneration which was further damaged on the day of the injury. Despite the initial x-rays not confirming dislocation, the shoulder asymmetry observed by several doctors immediately after the injury was suggestive of shoulder dislocation or subluxation and therefore the subsequent manipulation undertaken in the emergency department was reasonable. The Milch technique used to manipulate the shoulder is an accepted and preferred method as it is unlikely to cause additional damage to the joint or rotator cuff. I think it is quite unlikely that the actions taken by the emergency department at Joondalup Hospital contributed in any significant way to the rotator cuff damage subsequently found. 34 And later: The examination was suggestive of dislocation subluxation. Several doctors, including Dr Strahn, who initially referred Mr Ameduri to Joondalup Hospital after his injury, noted asymmetry of the shoulder joints. Asymmetry is a prominent feature of shoulder dislocation and not a typical feature of acute rotator cuff injury. Given the examination findings I believe overall it was reasonable to suspect dislocation or subluxation of the shoulder joint. 35 And further, in answer to the question 'whether Milch's method and gentle traction could cause a full thickness rotator cuff tear', Dr Dey said: Milch technique is acknowledged as having a very low complication rate hence it is one of the preferred methods of shoulder reduction (relocation). Gentle traction along the line of the humerus is part of the Milch technique. I therefore think it is very unlikely that manipulation of Mr Ameduri's shoulder using the Milch technique (with gentle traction) would cause a full thickness rotator cuff tear. 36 In his evidence, Dr Dey said that it is possible that half the population over 60 or older has tears in the rotator cuff of which they are completely unaware. His view was that x-rays can 'lie' in terms of what they reveal or fail to reveal. On the question of the possibility of tendons tearing during reductive procedure, Dr Dey said: It is possible, but it's rare. It's very rare when you use techniques like the external rotation Milch technique and I don't think, en masse, that that's what's happened. And the reason that I don't think that that's what's happened is because the - the - the imaging tests, the plain x-rays, the CT, the MRI, suggests that that damage in the rotator cuff had been there for at least months, but probably years and I also think that the consequences of leaving a shoulder joint, if it's sitting on the edge of the joint or dislocated - (Page 9) edge of the joint meaning subluxed, or out of the joint, dislocated – are much, much worse than the very, very small risks of damaging the rotator cuff. So I don't actually think they had a sensible option at the time. I think the risks of doing nothing to your shoulder were much greater than doing what they did. And although it is possible to tear the rotator cuff, I genuinely don't believe that's what happened, because of the way the shoulder joint looked on all of those other tests (ts 230). 37 Mr Ameduri was referred by Dr Brendon Ricciardo to orthopaedic surgeon Mr Emerik Trinajstic. Mr Trinajstic wrote three reports dated 8 December 2006, 16 February 2007 and 18 April 2007. 38 Mr Trinajstic referred Mr Ameduri to Dr Peter Honey for a second opinion. Mr Peter Honey, an orthopaedic surgeon, wrote a report dated 12 March 2007 in which, after looking at Mr Ameduri's MRI scan, he said: He has superior subluxation of the humeral head, atrophy of his rotator cuff muscles and also changes I think are consistent with chronic cuff dysfunction. Given the difficulty you had in repairing his rotator cuff, even at a relatively short time following the injury, there is a definite possibility that he had some rotator cuff dysfunction for a long time (although that may have been asymptomatic). 39 Mr Ameduri was also referred to Mr Peter Campbell, orthopaedic surgeon, and he also was reviewed by clinical Professor Turab Shakera who wrote a report on 23 March 2010 in which he observed: Narrowing of subacromial space and bony sclerosis of the greater tuberosity indicate chronic rotator cuff changes due to degeneration and/or tear of the rotator cuff. Review of the CT scan of 15 November 2006 confirms OA changes involving the left AC joint, narrowing of subacromial space and sclerosis of the greater tuberosity of the humeral head. The CT images also reveal atrophy of the supra and intra spinatis muscles. Atrophy of the rotator cuff muscles indicate the rotator cuff degeneration/tear is of longstanding. In my opinion such severe muscle atrophy is unlikely to occur within six days of the original x-rays taken on 6 November 2006. A follow up MRI was performed on 16 January 2007. I note the MRI report confirmed the full thickness rotator cuff tear and associated muscle atrophy. I conclude that the rotator cuff degeneration/tear pre-dates the injury sustained by Mr Ameduri on 6 November 2006. 40 Professor Shakera gave this report at the request of Dr Angelo Carbone, who was Mr Ameduri's treating general practitioner. (Page 10) Conclusion 41 It is obvious from my review of the medical evidence, that it is all to the same general effect. 42 It does not support Mr Ameduri's claim that it was the medical treatment he received that caused his extensive shoulder tendon tearing and resultant loss of function. Indeed, as was pointed out, Mr Ameduri agreed that no doctor had ever told him so. 43 As Mr Ameduri must succeed in proving negligence against Joondalup Hospital before he can be awarded damages, and as it is obvious he cannot succeed on the medical evidence, then unfortunately Mr Ameduri's claim cannot succeed and must be dismissed.
Damages 44 Mr Ameduri did not substantiate or support his claim for loss of earnings or earning capacity. He did not produce any copies of his tax returns. Indeed he indicated he had never filed a tax return. 45 During the years that he said he worked with horses Mr Ameduri asserted he did not generate income sufficient to require the submission of a tax return in any year. 46 Because of the view I have on the issue of liability and negligence, any assessment or provisional assessment of loss would be problematic if not academic. There seems little point in making an assessment of quantum. However, it was clear that Mr Ameduri has suffered an extensive degree of pain and suffering over a long period of time. He has had operations on his shoulder that have not been successful. He has permanent disability exacerbated to some extent by a pre-existing condition. His claim for general damages for non-economic loss, if he had been successful, in proving negligence, would have been about $45,000.
|