Baker v Hardcastle - [1999] WADC 56

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: BAKER -v- HARDCASTLE [1999] WADC 56

CORAM: O'SULLIVAN DCJ

HEARD: 16 AUGUST 1999

DELIVERED : 3 SEPTEMBER 1999

FILE NO/S: CIV 2390 of 1997

BETWEEN: GEORGE EDWARD BAKER
Plaintiff
AND
PHILIP HOBSON HARDCASTLE
Defendant

Catchwords:

Torts - Negligence - Claim against medical practitioner alleging failure to warn of material risks of surgery and to exercise skill and care in diagnosing plaintiff's condition and in operating - Negligence not found.

Legislation:

Nil

Result:

Claim dismissed.

Representation:

Counsel:

Plaintiff: Mr K J Bradford
Defendant: Mr J R B Ley

Solicitors:

Plaintiff: Bradford & Co
Defendant: Minter Ellison

Case(s) referred to in judgment(s):

Chappel v Hart (1998) 156 ALR 517
Ellis v Wallsend District Hospital (1989) 17 NSWLR 553
Hribar v Wells (1995) 64 SASR 129
Rogers v Whitaker (1992) 175 CLR 479

Case(s) also cited:

Birkholz v R J Gilbertson Pty Ltd (1985) 38 SASR 121
Bolam v Friern Hospital Management Committee (1957) 1 WLR 582
Chatterton v Gerson [1981] QB 432
F v R (1983) 33 SASR 189
March v E & M H Stramare Pty Ltd [1991] A Tort Rep ¶81-095
Purkess v Crittenden (1964) 114 CLR 164
Secretary, Department of Health and Community Services (NT) v JWB (Marion's case) (1992) 175 CLR 218
Teik Huat Tai v Saxon, unreported; FCt SCt of WA; Library No 960113; 8 February 1996
Watts v Rake (1960) 108 CLR 158

O'SULLIVAN DCJ: The defendant is a medical practitioner who specialises in surgery of the spine. On 26 February 1992 he operated upon the plaintiff who claims that as a result he has suffered increased pain and other injuries and disabilities which were caused by negligence.

The plaintiff's evidence

The plaintiff, who was born on 6 February 1928, occupied a managerial position in a motor sales company for many years until he resigned in 1988. In 1965 he commenced suffering from left groin pain which was constant and undiminished despite investigation by a number of medical practitioners. In 1979 he injured his back when lifting a spare part into the boot of a car. He was in great pain the next day and saw his general practitioner and then a chiropractor, Mr Martinovich. After two weeks off he returned to work although he continued to suffer from what he described as an "ache" in the lower back.
As time went on the plaintiff's back symptoms gradually increased but he said that it was the pain in his groin which mainly concerned him. In the late 1980's he saw his general practitioner, Dr Hobday, and was referred firstly to Mr Hollingworth and then to Mr Spence who diagnosed diverticulitis and operated but the groin pain remained.
In February 1991 Dr Hobday referred the plaintiff to Mr Wong, a neurosurgeon, to investigate and advise in relation to both the back and groin pains. Mr Wong was of the view that the two were unrelated and that back surgery was not warranted. In July 1991 he was referred to Drs Robinson and Finch who performed nerve blocks at the L3/4 level. This, the plaintiff said, provided excellent relief for two to three days in respect of both the groin pain and the lower back ache and made him think that the two were related, even though Mr Wong's advice had been to the contrary.
The plaintiff continued to seek relief and in November 1991 Dr Hobday referred him to Mr Griffiths, an orthopaedic surgeon who told him that he thought he needed surgery but that he no longer operated. Mr Griffiths suggested that he go and see the defendant whom he consulted in January 1992.
The plaintiff said when he saw the defendant he was suffering from left groin pain as well as lower back ache. However he said that it was the groin pain which was his predominant complaint at this time. He said that he told the defendant that he had seen many doctors and that some had expressed the view that there was a link between his groin pain and his back ache while others such as Mr Wong had expressed a contrary opinion. He said that the defendant examined him and then told him that he "definitely had a problem" with his back and that there was an operation which was available which would improve the quality of his life. He asked whether the surgery would cure his groin pain and said that the defendant replied: "Quite possibly". The plaintiff said that the defendant also told him that he was "very lucky" because there was a new surgical procedure available to him. He asked about its advantages and the defendant explained that there was less pain involved and patients were able to return to work more quickly but that it was a little more expensive than the old procedure. The plaintiff told the defendant that he was not in a financially strong position and asked him whether there was any problem with the old procedure. The defendant explained that there was not and that he had performed the old procedure over many years. The plaintiff then told the defendant that he would prefer to have the old procedure.
The plaintiff said that he had great confidence in the defendant and that he thought that if the back problem could be rectified there was a good chance the groin pain would disappear as well and that he trusted the defendant and was impressed when he said to him that the operation would improve the quality of his life. Accordingly he decided to have surgery.

The surgery

The plaintiff underwent an operation at the hands of the defendant at St John of God Hospital, Subiaco on 26 February 1992. It is pleaded that the surgery consisted of:
(a)A postero/lateral fusion on the right side L2-5.
(b)An interfacet fusion on the left side L2-L5.
(c)A decompression laminectomy L2/3, L3/4 and L4/5 on the right side.
The fusion was stabilized by fitting what is known as a Hartshill rectangle. It is a method which was commonly in use in Australia in 1992 and is the "old procedure" to which the defendant was referring when he spoke with the plaintiff on 23 January 1992. A bone graft is performed and the Hartshill rectangle acts as a scaffold to hold the segments of the spine in place while the graft takes, thereby increasing the chances of a successful fusion. The "new procedure" which had first been used by the defendant in late 1991 was known as the Graf procedure, although the name "Graf" may not have been mentioned to the plaintiff. It involved the insertion of pedicle screws attached by dacron bands which stabilize the segments of the spine, but allow some mobility.

The plaintiff's claim

By the Further Amended Substituted Statement of Claim the plaintiff pleads as follows:
"4A.At all material times prior to being treated by the Defendant the Plaintiff's symptoms emanated from the L3/4 level of his spine, with the determination of symptoms from L2/3 yet to be made.
5.On 23 January 1992 the Defendant duly examined the Plaintiff at his rooms at Wembley and diagnosed spinal stenosis at L2/3 and L3/4 in combination with a lumbar scoliosis and segmental instability from L2 to L5.
6.On 23 January 1992 the Defendant recommended to the Plaintiff that he should undergo a spinal fusion from L2 to L5 and a decompression over 2 segments.
7.In reliance on the recommendation referred to in paragraph 6 above, the Plaintiff consented to undergo the operation.
8.The Plaintiff was subsequently admitted to St John of God Hospital in Subiaco where on 26 February 1992 he underwent surgery performed by the Defendant in the form of a postero‑lateral fusion from L2 to L5 and stabilisation with Hartsill rectangle and wires and he also decompressed the right L2/3, L3/4 and L4/5 levels of the spine ("the surgery").
9.As a result of the surgery carried out by the Defendant, the Plaintiff suffered pain and injuries.
PARTICULARS OF THE PLAINTIFF'S PAIN AND INJURIES
(a)Increase in low back pain.
(b)Acceleration of degenerative changes in the adjacent segments in the spine.
(c)Scarring and disfigurement caused by multiple subsequent surgeries.
10.The Plaintiff's pain and injuries were caused by the Defendant's failure to exercise reasonable care, skill and diligence in, firstly, incorrectly diagnosing the Plaintiff's condition, secondly, failing to perform all of the necessary pre‑operative investigations, thirdly, choosing to perform the surgery actually performed and fourthly, in obtaining the Plaintiff's informed consent to the surgery."
Particulars of the defendant's negligence are then set out in paras 10.1 to 10.4 of the Further Amended Substituted Statement of Claim:
"10.1PARTICULARS OF DEFENDANT'S NEGLIGENCE IN INCORRECTLY DIAGNOSING THE PLAINTIFF'S CONDITION
(a)The Defendant was negligent in that he diagnosed spinal stenosis when all of the Plaintiff's symptoms were not indicative of such a diagnosis.
(b)The Plaintiff's condition prior to the surgery indicated degenerative changes.
(c)The symptom of groin pain was unrelated to any spinal stenosis or segmental instability.
Particulars
(i)a disc block at the L3/4 level of the spine performed in August 1991 produced excellent relief of both the groin and low back pain.
(d)Diagnosed instability and stenosis at L4/5 at a time when the Plaintiff was not suffering symptoms of either stenosis or instability at that level.
10.2PARTICULARS OF DEFENDANT'S NEGLIGENCE IN FAILING TO UNDERTAKE ALL NECESSARY PRE‑OPERATIVE INVESTIGATIONS
The defendant was negligent in that he ought to have obtained a lumbar discography to determine which levels were symptomatic, including L5/S1. Such investigation would have determined either that L3/4 was the only symptomatic level, or that the L2/3 and L3/4 levels were producing the Plaintiff's symptoms.
10.3PARTICULARS OF DEFENDANT'S NEGLIGENCE IN PERFORMING THE SURGERY ACTUALLY PERFORMED
(a)Failed to confine the surgery to decompression and postero/lateral fusion of the symptomatic levels.
(b)Performing a fusion at L4/5 which was not established to be symptomatic.
10.4PARTICULARS OF DEFENDANT'S NEGLIGENCE IN OBTAINING THE PLAINTIFF'S INFORMED CONSENT FOR THE SURGERY
The Defendant was negligent in that he failed to obtain the Plaintiff's informed consent for the surgery.
(a)At all material times the surgery contained inherent risks
Particulars of Risks
(i)The Plaintiff's low back symptoms could worsen.
(ii)The fusion may not go onto union.
(iii)Pain may develop in the levels above or below the fusion.
(iv)Wire breakage.
(v)Metal loosening.
(vi)The surgery may not reduce or relieve the groin pain.
(vii)Further operations may be necessary ('the risks').
(b)The surgery involved the insertion of metal plates.
(c)The Defendant ought to have advised the Plaintiff of the alternative surgery as indicated in paragraph 10.3 above;
(d) The Plaintiff would have attached significance to the risks, the alternatives and also that metal was to be inserted had the Defendant informed him accordingly.
(e)The Defendant ought to have advised the Plaintiff that surgery within a multi‑level degenerative spine carried a poor prognosis.
(f)The Defendant ought to have advised the Plaintiff that 'the adult degenerative scoliosis group are a most difficult group' before the surgery."

Negligent diagnosis

The plaintiff pleads in para 4 of the Further Amended Substituted Statement of Claim that the defendant was under a duty towards him to:
"(d)Advise and treat the plaintiff with the care, skill and expertise expected of a specialist spinal surgeon …
(e)carry out all reasonable pre‑operative investigations to determine the cause of the plaintiff's symptoms;
(f)alternatively to (e) above, to make a reasonable diagnosis after the performance of all reasonable pre‑operative investigations."
As I have already noted, it is then pleaded in para 10 that the plaintiff's injuries were caused by the defendant's failure to exercise reasonable care "in firstly incorrectly diagnosing the plaintiff's condition".
The duty of a medical practitioner is to exercise reasonable care and skill in diagnosing a patient's medical condition. It is not to diagnose it correctly and it follows that a wrong diagnosis is not necessarily a negligent one. To the extent that the pleadings allege a duty to make a "reasonable diagnosis" and a breach of duty to exercise reasonable care, skill and diligence constituted by "incorrectly diagnosing the plaintiff's condition" the author of them appears to have misunderstood these principles.
Counsel for the plaintiff opened as follows:
"The plaintiff alleges in para 10.1 of the statement of claim that his condition indicated degenerative changes, rather than spinal stenosis.
The reason relied on is the disc block taken at L3/4 level of the spine performed approximately six months prior to the surgery which produced excellent relief of his low back symptoms.
The expert evidence in relation to this issue comes from Mr Barry Slinger, spinal surgeon."
Spinal stenosis is a term used to describe narrowing of the spinal canal. It can be detected radiologically and it may or may not be symptomatic. When it is, classic symptoms consist of pain radiating down one or both legs, made worse with walking, especially down a decline and improved by flexion and aggravated by extension.
Degenerative change and spinal stenosis are not mutually exclusive conditions and the fact that the disc block at the L3/4 level administered in about July 1991 appeared to relieve the plaintiff's symptoms did not in itself prove that the problem was confined to that level. As Professor Fraser said:
"A local anaesthetic block is fairly unreliable unless one can be quite certain as to the location of the anaesthetic. It has a habit of spreading and involving other structures and when injected around a disc unless it is confirmed with contrast material showing that the fluid is not extended it's not possible to be sure that the block is obliterating pain arising just from that particular disc structure."
The defendant reviewed a myelogram and a CT scan when he saw the plaintiff on 23 January 1992. Having done so and after a clinical examination he wrote in a letter to the plaintiff's general practitioner dated 23 January 1992:
"His investigations denote spinal stenosis particularly at L2/3 and L3/4 in combination with a lumbar scoliosis and segmental instability from L2-L5."
A scoliosis is a tilt of the spine to the side, coupled with a rotation of it.
Mr Slinger did not see the myelogram and CT scan which was available to the defendant on 23 January 1992. That evidence has been lost. I was told from the bar table that it was stolen from the plaintiff's car some time, it would seem, before Mr Slinger saw the plaintiff on 14 October 1998. He was nevertheless of the opinion that the plaintiff's symptoms prior to the first operation were not indicative of spinal stenosis. Those symptoms, he said, were low back pain and pain in the left groin, without pain in the legs. Mr Slinger was asked in cross‑examination and said:
"… Mr Baker has said that when he saw Dr Wong and Dr Robinson, which was during 1991, he was having symptoms of pain going down his leg, both down the back of the leg and down the front of his right thigh. He didn't tell you anything about those symptoms?---No, no. I specifically asked about pain in the legs."
When asked whether that would make any difference to whether Mr Baker could be diagnosed as suffering from spinal stenosis Mr Skinner replied that it started "to fit the picture" but that it would have to be claudican pain, ie pain which occurred when walking and which was relieved by rest.
The plaintiff was asked how he had described his symptoms to the defendant when he saw him on 23 January 1992 and he said in evidence:
"The way Dr Hardcastle has recorded, and as indeed other doctors have, is that your back pain radiated down into the legs that's what you told him?---Yes that's possible.
You said that that came on during walking. So in other words you had this backache all the time and when you did activities like walking it started radiating to your legs and the symptoms got worse and went elsewhere?---If I said that I said that but that wasn't …
That's all I'm interested in Mr Baker, whether you said. That was the position wasn't it?---I used to walk about half an hour every day.
That was the situation wasn't it?---Beg your pardon?
That was the situation. That what you told him was true at that time?---The walking?
No, that you had backache all the time and when you walked the ache radiated into your legs?---That's quite possible. Its quite possible.
Was it the case or not?---I can't specifically say that's right."
It is clear that the absence of any complaint of leg pain significantly influenced Mr Slinger in coming to his opinion that prior to 26 February 1992 the plaintiff was not suffering from symptoms indicative of spinal stenosis. But as the evidence of the plaintiff himself which I have set out above indicates it is by no means certain that that was how the plaintiff described his symptoms to Mr Hardcastle when he saw him.
When Dr Robinson saw the plaintiff in July 1991 he thought that spinal stenosis was a possibility. He wrote in a report of 9 July of that year:
"A clinical presentation today would suggest a mechanical component of referred spinal pain from the upper to mid‑lumbar levels on the left, together with a picture of lumbar canal spine stenosis in relation to his bilateral exercise related leg pains."
In my view the radiological and clinical evidence makes clear that the plaintiff did have spinal stenosis and to the extent that Mr Slinger was of the opinion that the plaintiff did not exhibit classical symptoms of it I am not satisfied that he was not misled by what the plaintiff told him.
Paragraph 10.1(d) of the statement of claim alleges that the defendant was negligent in diagnosing instability and stenosis at the L4/5 level. It is admitted by the defendant that he diagnosed stenosis at the L2/3 and L3/4 level but there is no evidence that he made a pre‑operative finding of stenosis at the L4/5 level. If stenosis does exist at a particular level and surgery is required, the appropriate procedure is decompression. The consent form (Exhibit 6) which the plaintiff signed only referred to a decompression at the L2/3 and L3/4 levels. The defendant said that when operating it was not unreasonable to explore the L4/5 canal by passing a probe through it. That is what he did and he said that on finding that it was blocked he carried out a decompression at the L4/5 level as well.
The defendant did diagnose instability at the L4/5 level as his letter to the general practitioner dated 23 January 1992 shows. He also wrote in his notes made at the time of his examination of the plaintiff: "CT unstable, L2/3, L3/4, L4/5". The defendant said in evidence:
"In many cases you can't assess instability on CT but in certain cases where you see a significant difference between the gap between the facet joints on one side compared to the other it is a strong indicator that there is abnormal movement in that segment."
Mr Slinger and Mr Vaughan disagreed with the defendant although Mr Slinger conceded that flexion extension CT films may show increased movement. Professor Fraser said that the defendant's approach was not one which he would use himself. He said that it was used principally by a group of surgeons who have adopted the Graf ligament system for stabilising the spine and it was a factor, (although in his view a minor one), to take into account in making a decision on whether to fuse the spine at a particular level.
The evidence in relation to this aspect of the matter does not go much further. The defendant was cross‑examined at some length but continued to maintain that CT scans are useful in assessing instability in certain cases, of which the plaintiff's was one. The films which he saw were not flexion/extension views but he said:
"In the low lumbar spine movement is mainly in the sagittal plane which is the flexion extension … but what the flexion extension views can't pick up or can't determine is the lateral movement that can occur and the CT scan can … in some situations indicate that there is – or the potential for abnormal movement at that particular segment and that is based on … observing the CT scan and comparing the distance, comparing the left side with the right side and whether there is any opening of the facet joint on one side compared to the other to signify that there will be potential for lateral movement, perhaps a little bit like a rudder on a ship."

The defendant was asked why he did not use a procedure which he himself had pioneered in Western Australia known as a twist CT scan which takes views of the spine in a rotated position. He said:
"My assessment as recorded in my notes was that the presently available CT scan which I reviewed showed the facet asymmetry which is equivalent to facet gapping, which you see in the twist CT scan and that was already present so I didn't see the indication to proceed with the twist CT scan …"
As I mention later in these reasons, the decision to carry out a fusion at three levels was taken by the defendant on the basis of a number of considerations and he said that the finding that he made that the CT scan indicated instability at the L4/5 level was but one of them.
This being the state of the evidence I am by no means satisfied that the defendant's approach was a negligent one. While other practitioners deny that instability can be detected on a simple CT scan that of course is insufficient to make good the claim that the defendant was negligent. Before I could come to that conclusion I would have to be satisfied by appropriate evidence that the defendant had failed to exercise the care expected of him as a surgeon practising in his chosen field. In my opinion there is no justification for that view.

Failure to undertake all necessary pre‑operative investigations

As the particulars pleaded in para 10.2 of the statement of claim indicate the issue between the parties in relation to this aspect of the case was whether or not the defendant was negligent in failing to obtain a lumbar discogram as an aid to the diagnosis of the plaintiff's condition.
Lumbar discography can be used to establish whether a degenerative disc is symptomatic. A dye is injected into the disc so that it distends or irritates nerve fibres. If the injection reproduces the patient's pain then that will support the conclusion that the disc at that level is symptomatic.
Discography is controversial. Some medical practitioners believe that the results gained from discograms can be misleading because the patient's response may not accurately indicate the source of the pain. It is also an invasive procedure and there are risks attendant upon it. Professor Fraser, an expert called by the plaintiff, expressly agreed with the following passage which appears in an article entitled "Contemporary Concepts in Spine Care: Lumbar Discography" which appears in Vol 20 of the journal "Spine" at p2056:
"Discography should be performed only if the patient has failed adequate attempts at conservative therapy, and non‑invasive diagnostic tests such as MRI have not provided sufficient diagnostic information. Discography should be viewed as an invasive test to be used to seek abnormality when results from other tests are equivocal or inconsistent in a patient with symptoms severe enough to require surgery."
Mr Skinner, the other expert called by the plaintiff did not agree with the above passage but he did say about discography:
"I think some people are for and some are against and these authors have come up with a current recommendation which in their hands they feel is correct. Its not absolutely wrong but in my practice I prefer to include a discogram with the MRI."
Both Mr Slinger and Professor Fraser would have used discography in this case to investigate which levels of the spine were symptomatic. Counsel for the plaintiff submitted that because there was evidence of degenerative changes at the L5/S1 level and because that level was known to have a disc bulge and disc space narrowing with facet joint degeneration a multi-level fusion above that joint was likely to cause pain. That was a submission based upon the opinion of Professor Fraser who said:
"… I would be concerned to do a fusion from L2-L5 without there being evidence that doing such a procedure would not produce symptoms at L5/S1."
Given the degeneration seen at L5/S1 the professor said that his own approach would have involved assessing the L5/S1 level by discography to ensure that it was not a basis for symptoms.
It seems that Professor Fraser based his view that the L5/S1 level was known to have a disc bulge and disc space narrowing with facet joint degeneration upon plain x‑rays which he said he saw in 1989. The x‑rays were not tendered and except for the evidence of Professor Fraser there is no expert testimony concerning them. It may be, but it is not clear, that they were among the documents which were stolen from the plaintiff's car. Be that as it may the defendant said that when he saw the plaintiff in January 1992 he had the benefit of a CT scan and a myelogram which was not available to Professor Fraser. He made notes at that time indicating that as a result of his investigations there was a bulge at the L4/5 level but he made no note of a bulge at the L5/S1 level. It may be that the CT scan which he saw is a scan the subject of a report dated 17 December 1990 but the defendant cannot be sure of that. That report is Exhibit 20 and was apparently prepared by a Dr Foster who was not called to give evidence. The note refers to generalised disc bulging at L4/5 and L5/S1 levels as well as to degenerative changes involving L3/4, L4/5 and L5/S1 facet joints bilaterally. The defendant said that he did not know Dr Foster and that in any event it was his practice to examine CT scans himself. He said that the absence of any note by him on Exhibit 5 to the effect that he had seen a bulge at L4/5 would indicate to him that there was no bulge of significance at the L5/S1 level and he explained that in 1992 there were occasions when radiologists were mistaken in reporting bulges visible on CT scans and he explained the reasons for why such a mistake might have occurred on this occasion. If there had been degeneration visible on plain x-ray in 1989 it must have been of such a nature that he had regarded it as minor.
The defendant was cross‑examined on the extent to which he investigated the stability of the L5/S1 level. He said:
"My interpretation of the lumbosacral joint was that it was a stable alignment and that it was not involved in the scoliosis. There is a report which mentions some degeneration on the CT scan. I don't know the author of the report but I haven't recorded anything that I was concerned about at the L5/S1 level on the CT scan."
Mr Ruff and Mr Vaughan support the view that discography was not called for here. Mr Ruff said that those in favour of using discography do so in two circumstances:
"they will use it to predict a level of fusion where they are dealing with back pain and they will use it to investigate a disc … that by other imaging techniques looks normal but above the level of fusion, if they are going to do a fusion with a decompression to determine whether or not they should include that in the fusion."
Mr Ruff said that when it is necessary to decompress a disc to deal with stenosis and there are grounds for fearing that the decompression will render the spine unstable at that level and a fusion is therefore to be carried out there is no need for a discogram. As he put it:
"Now it may be fortuitous if you are fusing the level that you hope the arthritis may be producing the back pain but you are fusing the level because you are doing a decompression as well and therefore you don't need to try and use discography as an adjunct to highlight the need for the fusion because you are already doing it."
In the circumstances of this case, Mr Ruff saw no need for discography and Mr Richard Vaughan, neurosurgeon, was of a similar view. He stated in a report dated 29 July 1999:
"I am not of the view that lumbar discography would have been any more helpful here and I do not believe that it would have changed the surgical decision. Discography has a role which I believe is limited, though others may not be of that view. However I do believe that discography would not have altered the course of events. I believe every lumbar disc for Mr Baker would likely have shown gross abnormality and some or all may have produced pain."
The defendant gave evidence that he based his decision to carry out a fusion of the plaintiff's lumbar spine at three levels on a number of factors and that discography was unnecessary in the light of them because the result of it would not have affected his decision. He mentioned his findings of degeneration in the lumbar spine at the L2/3, L3/4 and L4/5 level, the scoliosis, the radiological evidence on myelogram and CT scan showing evidence of disc bulging and what he considered to be instability, the results of a disc block performed at L3/4 by Dr Finch and the findings upon clinical examination including local tenderness over the L4/5 level. He said:
"… I had evidence, in my opinion (of) a significant degenerative change and deformity and that in combination with local tenderness, in my opinion, means that it is certainly possible that the L4/5 segment or probable that the L4/5 segment is a contributing factor, particularly as its at the lower end of the scoliosis in his overall pain situation and its absolutely mandatory that if one is treating this condition, the scoliosis and the spinal stenosis, the multi-level degeneration with the instability - its absolutely mandatory that that level is included within the fusion."
In my view it has not been demonstrated on the evidence that the defendant was negligent in failing to use discography to investigate the plaintiff's condition in this case.

Negligence in performing the surgery actually performed

The title of this sub-heading is taken from the words actually used by the plaintiff in para 10.3 of his statement of claim. Counsel for the defendant called it a curious allegation and in some ways he was right to do so. It is no part of the plaintiff's case that the defendant was negligent in the actual performance of the surgery. In essence it is said that the negligence was constituted by operating upon the L4/5 level when there was no reason to do so. This is reflected in the particulars which allege that the defendant:
"(a)Failed to confine the surgery to decompression and postero/lateral fusion of the symptomatic levels.
(b)(Performed) a fusion at L4/5 which was not established to be symptomatic."
Counsel for the plaintiff said in opening:
"Essentially the plaintiff's case on the negligence issue - this is quite apart from the matter of consent - is that shortly prior to visiting the defendant for the first time Mr Griffiths had diagnosed the problem. He is also an orthopaedic surgeon. Your Honour would be aware of that. He had indicated a problem at two levels of the spine and had said that he was not keen on putting instrumentation in and had referred to the defendant to make a decision with the plaintiff in relation to surgery.
The defendant had one examination of the plaintiff, relied on other documents and operated on an extra level in respect of which there were no appreciable investigations done on the level. Of course we are referring to the L4/5 level. So he had gone to the defendant with an opinion from Mr Griffiths that he has got a problem at L3/4 and the level above which is L2/3. The defendant without any appreciable investigation has included the L4/5 in the operation."
The first point to make about this allegation is that the evidence does not establish that the existence of symptoms at a particular level is determinative of whether a fusion should be carried out at that level. That is particularly so in a scoliotic spine where, as Mr Vaughan pointed out, it may be appropriate to stabilise the spine at a level which was not symptomatic. Professor Fraser also agreed that fusion at a level which was not degenerative might be appropriate in a scoliotic spine although he did not agree that that was so in this case. I have already set out the factors mentioned by the defendant as influencing him in the decision which he took.
In any event the evidence does not in my view establish that the plaintiff was not symptomatic at the L4/5 level. As Mr Ruff said at p261:
"In the setting of degenerative disease most circumstances involve L4/5 and Mr Baker's symptoms were more proximal than distal. It was unlikely that his symptoms were coming from his lumbar-sacral junction. Given that we accept the thesis that his symptoms were coming from his back and that you were trying to help him by fusing it and decompressing it you could argue that the greatest likelihood was that his symptoms were coming from the middle of his lumbar spine and on a probability basis the maximum probability would be 3/4 with lesser probabilities at the adjacent levels and lesser probabilities of the levels adjacent to that. I would have thought that 4/5 was included on that probability basis."
In my view the defendant was not negligent in operating to perform a decompression and fusion of the plaintiff's spine at the L4/5 level.

Negligence in obtaining the plaintiff's informed consent

Again the title of this sub-heading is taken from the pleadings and it reflects, I think, some confusion about relevant principles. Counsel for the plaintiff submitted that there was an onus upon the defendant to establish that he received the plaintiff's informed consent to perform the surgery. I do not accept that submission. Paragraph 6 of the statement of claim makes it clear that the plaintiff did give his consent to the operation. This is a case pleaded in negligence, not trespass. The onus is on the plaintiff to establish his claim.
The plaintiff's case in reality is based upon the proposition that the defendant was under a duty to the plaintiff to warn of material risks inherent in the proposed treatment. There is no doubt that that duty existed here. What remains in issue is whether the defendant was in breach of it and whether damage resulted.
A risk is material if, in the circumstances of the case a reasonable person in the position of the plaintiff would be likely to attach significance to it or if the medical practitioner is or should reasonably be aware that the particular patient if warned of the risk would be likely to attach significance to it (Rogers v Whitaker (1992) 175 CLR 479).
The specific risks of which the plaintiff says he should have been warned were as follows:
(a)That his low back pain could worsen.
(b)That the fusion may not go into union.
(c)That pain may develop in the levels above and below the fusion.
(d)That there may be breaking of wire or loosening of metal in the implant.
(e)That the surgery may not reduce or relieve the groin pain.
(f)That further operations may be necessary.
(g)That surgery within a multi-level degenerative spine carried a poor prognosis.
(f)That the plaintiff was part of a group of adults suffering from degenerative scoliosis who were most difficult to treat.
The plaintiff denied that he was negligent in failing to advise of these risks and pleaded in para 9 of the defence:
"Prior to the operation on 26 February 1992, the consultation on 23 January 1992, the defendant orally warned the plaintiff of the risks of undergoing a surgical procedure such as the one the defendant performed on 26 February 1992. In particular, the defendant told the plaintiff inter alia that:
(a)there was no guarantee that the operation would relieve the plaintiff's back pain;
(b)there was a possibility that the operation might make the plaintiff's back pain worse;
(c)the operation involved a bone graft and it was possible the bone graft might not 'take';
(d)if the bone graft did not take, the operation would certainly not relieve the plaintiff's back pain; and
(e)if the bone grant did not take another operation might be necessary."
The defendant gave evidence in relation to these matters as follows:
"10.In accordance with my routine practice I told Mr Baker that if his pain had been present for a long time, was not getting better and was interfering with his life and if he had tried different treatments which had not assisted with the pain then he may be a candidate for spinal surgery. I showed Mr Baker two models of the spine, one had Graf implants in place, the other had a Hartshill rectangle in situ. In relation to the Hartshill procedure I informed Mr Baker that this was a conventional fusion technique aimed at joining a segment and eliminating movement at that segment. The operation is performed using bone graft or a bone graft substitute and the Hartshill Rectangle acts as scaffolding to hold the segment together while the bone takes. By using the Hartshill rectangle the chance of the fusion taking is increased. Provided the bone graft takes the chances of success of the operation are reasonably good but it can take three months or more for the graft to take. Grafts do not always take and if fusion does not occur a further operation may be required. Risks associated with the procedure include:
•death associated with anaesthetic complications.
•neurologic weakness in the legs;
•medical complications such as stroke;
•infection;
•there is no guarantee that the operation will relieve the pain and in some cases the pain may become worse;
•the wires used to hold the Hartshill rectangle can loosen or break and there is a 30% chance that the implant may need to be removed;
•there is the potential for levels above and below the fusion to become symptomatic particularly if there is an abnormal disc or instability at those levels.
11.Usually I tell patients, in percentage terms, the chance of success. I cannot remember if I gave Mr Baker a figure, if I did I would have told him there was a 60% chance of the operation relieving his pain. In discussing the likely outcome of surgery I made it clear to Mr Baker that, compared to most patients, he had a lesser chance than normal of having a good result.
The plaintiff's evidence in chief was that the proposed surgery was "never really discussed" at the meeting of 23 January 1992 or at any time before it was performed. In cross‑examination he was asked and said:
"What did he tell you about the operation?---Nothing.
He told you nothing about it at all?---No.
Even though he told you nothing about it at all you agreed to have it?---That's correct. I agreed to have it because I thought that his opinion was worth taking notice of and it was going to relieve my groin pain and my back pain ..."
Later the plaintiff said that the defendant did not tell him "anything technical about the operation". He denied that there was talk of the risks associated with the surgery but when asked whether the risk of death was mentioned he said:
"Yes, I think there's a risk with all operations which I have been told before and I think he may have said that you know unfortunately there's a risk with all operations."
Later he said:
"The term that was used, as I remember it, was 'with all operations there's an element of risk' which I think I understood anyhow; you know things can happen under anaesthetic and all."
The plaintiff said that he thought the risk was slight and was asked about it and said as follows:
"What did you think it was a slight risk of what?---Well not being successful or not working out, the anaesthetic or whatever you know. It didn't concern me that much."
The plaintiff did say that he told the defendant that he wanted to have the Hartshill procedure because it was less expensive. However he denied that he was told that the surgery which he was to undergo would involve decompression over two segments and spinal fusion using the Hartshill rectangle from L2-L5. He said that the word "decompression" "would not have meant anything to him and "spinal fusion" would not have meant a great deal either. Nevertheless on 6 February 1992 he signed a form entitled "Consent to Operative Treatment and Administration of Anaesthesia" which read:
"I George Baker of 19A Dean Road, Bateman hereby consent to the operation of decompression L2/3 L3/4. Spinal fusion L2-L5 being performed on self the nature and purpose of which have been explained to me by P Hardcastle…"

According to Mr Baker it was only just as he was leaving Mr Hardcastle's rooms that he asked whether the operation would cure his groin pain and he said that Mr Hardcastle "replied along the lines of quite possibly". Nevertheless the search for groin pain relief was a major reason why he made the decision to have the surgery. At one point in his cross‑examination he was asked about whether he knew that there was no guarantee that the surgery would fix his pain. He said:
"Well I don't suppose I believe any guarantees about anything but I put trust in people and you have faith in what they're doing. They know what they're doing. What else can you do?"
Nevertheless when asked whether if Mr Hardcastle had told him that there was no guarantee that it would cure his pain it would have made any difference he said:
"It would have done yes. I would have given it a lot more thought but I wasn't given any of the negatives on the operation. I had nothing to think about. I was quite confident".
I have already noted that by the statement of claim the plaintiff alleges that on 23 January 1992 the defendant recommended to him that he should undergo a spinal fusion from L2-L5 and a decompression over two segments and that it was in reliance upon that recommendation that the plaintiff consented to undergo the operation. Nevertheless he said in evidence that it was only after the operation that he learned for the first time that three levels of his back had been fused.
I am not persuaded on the balance of probabilities that the plaintiff was not warned of any risks attendant upon the proposed surgery. In my view it is quite clear on all the evidence that the manner in which the surgery was to be performed was discussed between himself and the defendant. I am also quite satisfied that the plaintiff was informed of the defendant's proposal to carry out a fusion at three levels. In these circumstances I think that it is most unlikely that the defendant did not give the plaintiff an explanation and warning of the risks in the terms set out in his evidence and I reject the evidence of the plaintiff to the extent that it conflicts with it.
It is next necessary to consider whether the advice which the defendant did give to the plaintiff was adequate to discharge the duty owed to him. Following the operation the defendant wrote to the plaintiff's general practitioner on 9 June 1992 stating:
"I reviewed Mr Baker today and as yet one has not seen any improvement in his pre‑operative symptoms though his x‑rays are perfectly satisfactory today. I must admit the adult degenerative scoliosis group are a most difficult group. However, I would like to give things more time as it is possible his bone grafts have not joined as yet. He is getting very little in the way of leg pain though his groin pain does persist. I am not sure whether the groin pain is coming from the back or not."
It was put to the defendant that he did not tell the plaintiff that he was part of a "most difficult group" and he said:
"I would have explained to Mr Baker that the adult scoliosis group required a longer fusion, therefore there is more chance of failure of fusion and the problems associated …"
He also said:
"I warned Mr Baker, as this is my routine practice, that in patients with his particular problem, the chances of success are not as good as someone who has got, say, a one‑level problem where you're doing a one‑level fusion…"
In my view it is clear that in referring to the adult degenerative scoliosis group as "a most difficult group" the defendant was commenting upon his finding that day that as yet there had been no improvement in Mr Baker's pre‑operative symptoms. The words used by the defendant to the general practitioner should, I think, be read as a comment made upon the difficulties of predicting the progress of patients falling within the group of which the plaintiff formed part. In my view the fact that the defendant wrote them does not provide a justification for the conclusion that the warnings which he in fact gave to the plaintiff were inadequate.
Counsel for the plaintiff made two specific admissions:
(a)That the evidence establishes that the plaintiff had more than a 5 per cent chance of being worse off after the surgery and the warnings given by the defendant did not make that clear.
(b)That the surgery only had a 60 per cent chance of success.
In my view the evidence does not establish that the plaintiff had a more than 5 per cent chance of getting worse after the surgery. Counsel was unable to point to any evidence which specifically went to prove that contention. No direct question was put to any of the expert witnesses with a view to establishing it. It is true that Professor Fraser spoke of an increased risk of multi‑level fusion and mentioned that the risk of non‑fusion in a three level fusion was 10 per cent greater than the risk of non‑fusion in a two level fusion but that is a different risk to the one counsel was contending the plaintiff should specifically have been warned of.
I have already set out the defendant's evidence which makes it clear that he says that he may not have mentioned that there was a 60 per cent chance of the operation relieving his pain. Counsel for the plaintiff submitted that that was a matter about which the plaintiff should have been specifically warned and that it was clear that he was not.
I am not prepared to find that the defendant did not mention the figure of 60 per cent to the plaintiff. It is true that he concedes that he might not have but it nevertheless remains the case that for the plaintiff to succeed I must be satisfied on the balance of probabilities that he did not and in my view the evidence does not warrant that conclusion. I have already rejected the plaintiff's evidence which was to the effect that there was no discussion of the chances of success of the operation and I have accepted that the defendant did tell the plaintiff that there was no guarantee that the operation would relieve pain. In my view it is more likely than not in those circumstances that the plaintiff would have responded to that advice by asking what the chances were and that the defendant would have mentioned a figure of 60 per cent.
In any event I am not satisfied on all the evidence that there is any failure by the defendant to warn the plaintiff of any material risk. While the defendant gave evidence that if he did mention a degree of risk he would have said there was a 60 per cent chance of success there was no other evidence, and in particular no evidence from experts, that it was material in the sense explained in Rogers v Whitaker (supra) to mention 60 per cent rather than to use the words which the defendant in fact used.
In my view the warnings which were given by the defendant were adequate to discharge the duty owed by him.
Finally and in any event I am not satisfied that the evidence establishes that the plaintiff would have done anything different even if his testimony as to what the defendant said to him were to be accepted. As Gaudron J pointed out in Chappel v Hart (1998) 156 ALR 517 at 520; where a claim is based upon a duty to inform and a breach of that duty it is of course necessary for a plaintiff to give evidence as to what would or would not have happened if the information in question had been provided. (And see Hribar v Wells (1995) 64 SASR 129 at 140 per Bollen J; Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 at 560 per Kirby J.) It is true that that is a matter to be determined objectively in the light of all the evidence but the plaintiff's own testimony in that regard will be significant.
In his closing address counsel for the plaintiff was only able to take me to one passage in the evidence where the plaintiff expressly asserted that he would have declined surgery. That passage occurs in cross‑examination when it was put to him that he was told that there was a 60 per cent chance of the operation relieving his pain and he said:
"I would remember that for sure. Maybe I can forget a few simple things but not something like that and I certainly wouldn't have gone ahead with an operation knowing that."
In examination-in-chief the plaintiff merely said:
"If Mr Hardcastle had suggested to me that the operation carried inherent risks including death from anaesthetic, nerve damage, the possibility I may need further operations or the possibility that my back pain may not be improved or may get worse then I would have given that some thought and would have attached some significance to that."
It is pleaded in para 10A of the statement of claim that but for the defendant's negligence the plaintiff would have either:
"(a)declined surgery; or
(b)undergone surgery to the L3/4 level only with reasonable prospects of success; or
(c)if the L2/3 level of the spine was established to be symptomatic, undergone surgery to both the L2/3 and L3/4 levels with reasonable prospects of success."
The plaintiff gave no evidence that he would have opted for surgery other than that performed by the plaintiff had he been informed of the risks particularised. In my view he was keen to have the operation and even if his evidence as to what the defendant had told him were to be accepted I consider it most unlikely that he would have elected for any course of action other than that which he pursued.

Conclusion

In my opinion the plaintiff's claim should be dismissed.