Booth v Di Francesco

[2003] NSWSC 378

CITATION:	Booth v Di Francesco [2003] NSWSC 378
HEARING DATE(S):	3 February 2003 - 21 February 2003
JUDGMENT DATE:	6 May 2003
JURISDICTION:	Common Law Division Professional Negligence List
JUDGMENT OF:	Dunford J
DECISION:	Judgment for the defendant.
CATCHWORDS:	NEGLIGENCE - medical practitioner - hysterectomy - whether medical practitioner sufficiently advised plaintiff of her condition and options available.
CASES CITED:	Abbas v Kenney [1996] 7 Med LR 47
PARTIES :	Margaret Booth (Plaintiff) Anthony Di Francesco (Defendant)
FILE NUMBER(S):	SC 20152/2000
COUNSEL:	M Williams SC / E Cox (Plaintiff) S Donaldson SC (Defendant)
SOLICITORS:	Charlton Shearman (Plaintiff) Blake Dawson Waldron (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
PROFESSIONAL NEGLIGENCE LIST

DUNFORD J

Tuesday, 6 MAY 2003

20152/00 Margaret BOOTH v Anthony DI FRANCESCO

JUDGMENT

1 HIS HONOUR: In these proceedings the plaintiff claims damages for the loss and damage she claims she suffered as a result of the alleged negligence of the defendant gynaecological surgeon in relation to a hysterectomy of the plaintiff carried out 21 July 1994.

2 The plaintiff was born on 24 November 1944 and was accordingly aged 49 at the time of the hysterectomy. She left school at age 15 after completing only one year of high school and from then until she was married at age 23 she worked in regular employment as a shop assistant. She was married in 1968, aged 23, but the marriage ceased in 1975. She has not worked in paid employment since her marriage.

3 She gave birth to a healthy daughter by caesarean section with no complications on 26 September 1968, but during her second pregnancy in 1971 she developed a Bartholin’s abscess and at 37 weeks she was admitted to Royal Prince Alfred Hospital for incision of the abscess. She haemorrhaged and gave birth to a stillborn child by caesarean section on 17 March 1971 and was discharged home on 31 March 1971. She was re-admitted to Royal Prince Alfred Hospital on 11 April 1971 for recurrent Bartholin’s abscess which was drained on 15 April 1971.

4 Following this she had a number of admissions to, and attendances at, hospital. She complained of hypogastric, epigastric and lower chest pain, and on 23 February 1972 underwent a coeliac arteriogram which noted, “slight narrowing of the coeliac artery” (pinched artery). On 25 March 1976 she underwent a bilateral submucosal nasal cautery at Sutherland Hospital, and from January 1972 to March 1975 she regularly attended the Psychiatric Outpatient’s Clinic at Royal Prince Alfred Hospital (she said she was very depressed after losing the baby) and the clinical notes record a number of personality and psychiatric symptoms.

5 In 1976 she was again complaining of epigastric pain when the provisional diagnosis (9 June 1976) was “probable recurrent coeliac artery compression, personality disorder”.

6 Between 1977-1982 she had IUDs replaced five times with the usual curettage (D&C) which went with them. On 8 January 1975 she had a pregnancy terminated during which the fundus of her uterus was perforated. There is then, apart from the IUDs, something of a gap until July 1985 when Dr Solomon, who had been her regular gynaecologist since the stillbirth pregnancy carried out a D&C and anterior vaginal repair with insertion of a cystocath. The symptoms which led to this procedure was stress incontinence of urine, and the laparotomy to repair resulted in a uterine perforation. Once again the clinical notes referred to a “personality disorder”.

7 She ceased seeing Dr Solomon in late 1985 when a friend took her to Dr Melov, a general practitioner, when she was complaining of lower abdominal pain, and Dr Melov referred her to the defendant whom she first consulted in early 1986.

8 In a letter to Dr Melov dated 7 March 1986, Dr Di Francesco expressed the view that she probably had pelvic inflammatory disease (PID) as well as multiple adhesions. He obtained a report from Royal Prince Alfred Hospital which noted her 21 previous admissions and a copy of the discharge summary of her 1975 admission which included a diagnosis of “personality disorder”.

9 She continued to see the defendant and other doctors, and had a number of admissions to hospital for a wide variety of complaints, not all of them gynaecological or urological, as summarised in Ex. B. She said that early in their relationship the defendant told her he would never operate on her, and when she was in Sutherland Hospital complaining of lower abdominal pain in March / April 1986, the defendant visited her in hospital along with Dr Yee (a general surgeon) and he discussed the possibility of a hysterectomy, but the two doctors agreed that it should not be done because it would cause too many medical problems. This is consistent, so far as it goes, with the clinical notes which on admission refer to “probable hysterectomy”, but after the ultrasound indicated an ovarian cyst or chronic abscess, she was commenced on Vibramycin, her symptoms gradually subsided and she was discharged (without hysterectomy).

10 In 1986/87 the plaintiff had further urinary problems, and a bladder cystoscopy and diathermy was carried out on 18 May 1987 at Kareena Private Hospital. After various tests, Dr Millard concluded in December 1987 that she had an unstable bladder, but not stress incontinence.

11 She said in evidence that she continued up to the hysterectomy to lose small amounts of urine, but only when she coughed or sneezed.

12 On 2 November 1988 she had a lipoma, which proved to be benign, removed from her left chest wall.

13 She continued to see a number of doctors including the defendant, and was diagnosed with bladder problems, thrush, urinary tract infections, vulvitis, abdominal pain, cervical arthritis and cystitis, and in mid 1991 she had a recurrence of a Bartholin’s abscess. On 15 May 1991 the defendant wrote to Dr Victor “I think she has her old problem of PID and multiple adhesions …”

14 Bartholin’s abscess re-occurred in September 1993 and was drained. A histopathological report dated 13 September 1993 of vaginal lesions showed benign vaginal polyps lined by squamous mucosa with no evidence of malignancy. On 12 January 1994, x-rays showed mild arthritic changes to a number of locations including shoulders, hips, ankles and wrists and she was seen by Dr J Ditton at Royal Prince Alfred Hospital Pain Clinic.

15 In March 1994, the plaintiff attended Dr Kumar, who had taken over the general practice of Dr Melov, complaining of inter-menstrual bleeding in a form she described as “spotting”. He referred her to the defendant who advised a hysteroscopy but he first required her to be seen by the rheumatologist, Dr Jeffrey Eisman, because of the possibility that she was suffering from lupus. On 8 April, Dr Eisman reported that the plaintiff did not have any symptoms suggesting of lupus and suspected that her symptoms were more related to the diffuse fibro myalgia syndrome and some osteo arthritis rather than lupus.

16 On 5 May 1994 she was admitted to President Private Hospital for her dilation and curette and hysteroscopy. The hysteroscopy report of the following day stated as follows (L 111):

“Sections of the uterine curettings show fragments of endometrium in which some of the endometrial glands appear proliferative and some show evidence of early secretion, together with areas of focal adenomatous hyperplasia with no significant atypia. There is no evidence of malignancy.

SUMMARY: ENDOMETRIUM – FOCAL ADENOMATOUS –HYPERPLASIA.”

17 Mrs Booth said that about a week or so after the curette she saw Dr Di Francesco again, but records indicate that this was probably about 17 May. She said that he told her that he had the results back from the curette and that she had abnormal cells “which were cancer”. She was shocked to be told she had cancer and the defendant told her that she had three options, namely that she could continually have curettes and she said she didn’t want to do that because she had previously had her uterus pierced, or she could have a hysterectomy, or “do nothing”. He told her to go home and think about it and see him in about a week’s time. She agreed in cross-examination that if she had cancer “doing nothing” was not an option (T 73).

18 She said she was very upset and stressed, she told him that she didn’t know what to do for the best, and she said he strongly recommended a hysterectomy. She told him she couldn’t have it because she was full of adhesions, (although she admitted that she did not at that stage know what “adhesions” meant).

19 Dr Di Francesco checked her file and told her not to worry that he would get another doctor to operate as surgeon. She told him that she was very worried about the procedure going wrong because she had had previous operations go wrong in the past and said she only agreed to the hysterectomy because he told her that she had cancer.

20 She saw Dr Kumar and told him that Dr Di Francesco was recommending a hysterectomy, but claims she did not discuss with him whether or not she should have the hysterectomy or get a second opinion (T 75). She said Dr Kumar did not actually use the words that she had cancer, but “he didn’t deny that I had cancer either” (T 86), and he told her she had to have the operation or she would be dead within 5 years (T 75).

21 The defendant saw her again on 3 June, and again discussed the alternatives of continued observations (which I understand to mean further curettes and hysteroscopies) or hysterectomy, and ultimately she had the hysterectomy, performed at President Private Hospital by Dr Di Francesco on 21 July 1994. The histopathology of the uterus showed disordered proliferative endometrium, extensive adenomyosis, focal left ovarian endometriosis, a right ovarian follicular cyst, both fallopian tubes appeared normal and there was no evidence of malignancy.

22 The surgery was however complicated by inadvertent bladder damage which resulted in a persistent vesico-vaginal fistula. This resulted in incontinence of urine which needed to be repaired, which was initially performed, unsuccessfully by the defendant on 27 October 1994, then by Dr Andrew Korda on 23 February 1995, but the vesico-vaginal fistula recurred in April of that year and on 24 April 1995 she underwent a further laparotomy which rectified the fistula. However, since that time she has complained of severe lower abdominal pain constantly present which is apparently due to the adhesions resulting primarily from the numerous surgical procedures which she has had in that area.

23 She said that after the hysterectomy she had no control over her bladder and had urine pouring away from her 24 hours a day, to the extent that she was unable to leave her flat except for medical appointments. Following the April surgery her bladder returned to how it had previously been, namely only slight loss when she coughed or sneezed and that condition remains today, that is the condition as it had been prior to the hysterectomy.

24 She said (T 28) that she would not have agreed to the surgery if she had understood that she did not have cancer, or if she had understood that she did not need the hysterectomy, but could have another curette in three to four months time to confirm that there was no sign that she was going to get cancer at a later stage, if she understood that there was an 80% chance that her problems might go away spontaneously, with or without hormones, and particularly if she knew there were only 3% chance of ever getting cancer. She also said she would not have agreed to have the hysterectomy if she understood that she faced the risks of haemorrhaging during surgery, risks of infection, risk of damage to her internal organs, especially her bowel and bladder, or face the risk of developing a fistula.

25 Since the hysterectomy she has adopted an invalid lifestyle due she says to the constant pain of the adhesions in her lower abdomen and she takes a vast number of medications as set out in Ex. C. She spends most of the day watching television, either sitting up or resting on her bed and, not surprisingly, has difficulty sleeping at night, that is more difficulty than previously. She feels very weak and cannot lift weights of 2kgs and is unable to carry out a number of household tasks such as making her bed, cleaning the floors, vacuum cleaning and is receiving help from NSW Home Care Services. She can do her shopping but cannot carry more than a few items and virtually always has it delivered.

26 She said that although she had, for a long period prior to the hysterectomy, suffered lower abdominal pain it wasn’t continual pain all the time, but since the hysterectomy she suffers continuous lower abdominal pain, although it is worse at times and she can feel the adhesion pulling and pressing down on her bowel (T 34).

27 The defendant practised as a specialist obstetrician and gynaecologist until he retired at the beginning of this year, although he ceased doing confinements about 1990 and since then practised only as a gynaecologist. He has since 1980 been a fellow of the Royal Australian College of Obstetricians and Gynaecologists and has a particular interest in colposcopy and microsurgery for use in infertility cases.

28 The defendant’s evidence consisted of his oral evidence, his records relating to the plaintiff (Bundle L in Ex A, hereinafter referred to as L followed by the page number), which in turn included his handwritten notes relating to her attendances on him, a transcription of those handwritten notes (Ex 4) and answers to selected interrogatories (Ex N).

29 Mrs Booth first consulted him on 7 March 1986 when she complained of recurrent abdominal pain, more specifically related to the pelvis. She had been referred to him by Dr Melov, her general practitioner, whose letter of referral (L 106) dated 6 March noted that she had been complaining of recurring abdominal pains for six months. He thought there was a degree of pelvic inflammatory disease, she was under great stress with family troubles and he considered there was a large functional overlay.

30 He said the plaintiff gave him a detailed history of her past gynaecological history which appeared to be accurate having regard to the surgical scars which the defendant found on his examination of her. Nevertheless as a precaution, and in view of her extensive medical history as she related it, before further proceeding to treat her, he made an inquiry of Royal Prince Alfred Hospital, and by letter dated 14 March 1986 Dr Child, on behalf of Royal Prince Alfred Hospital furnished a brief summary of her history which included references to a uterine perforation in 1975 and an anterior vaginal repair in 1985. The letter also enclosed a discharge summary relating to her admission in 1976 which contained a diagnosis of possible recurrent coeliac artery compression and personality disorder, and noted that since her previous pain had had a considerable psychological overlay.

31 When she consulted him in 1986, Dr Di Francesco considered, “that she was an effective communicator. She gave a good history. She appeared to understand contraception. I had no difficulty communicating with her” and neither then, nor at any other time, did he perceive any difficulty on her part in understanding things that he said to her, or in her communicating to him information which was relevant or necessary (T 359). Following receipt of the information from Royal Prince Alfred Hospital, Dr Di Francesco had her admitted to Sutherland Hospital on 31 March 1986 with a diagnosis of pelvic infection. She was treated with antibiotics to which the infection responded.

32 He continued to see her the rest of 1986 and on 20 January 1987 the plaintiff told Dr Di Francesco that she wanted to discuss sterilisation with him. He told her that if she wanted to proceed with the procedure after due consideration it would not be via laparoscopy but by laparotomy, that is by open tubal ligation. He then discussed with her the matters that had previously been discussed, that she did suffer with adhesions, that she had also had pelvic infections and had multiple previous operations which would mean that she would certainly have adhesions present.

33 He asked her to reconsider and come back in approximately two to three weeks and discuss it once more. She returned on 2 February and she decided that it was better not to proceed with the sterilisation and that she would use a condom instead. The defendant perceived no difficulty in communicating with the plaintiff about the matters discussed in January 1987 and saw no difficulty in her coming to a decision in relation thereto (T 363-4).

34 Following that, his notes (L 7-19) show that she saw him a number of times with a number of different complaints including thrush, recurrent urinary tract infection, incontinence, contraception, lipoma on the left breast, cysts, bladder problems, abdominal pain, rash in the vulva, constipation, vaginitis, bladder control, etc.

35 In September 1992 she again complained of severe pain in her lower abdomen (L 19). She was prescribed antibiotics but the pain continued and ultimately she was admitted to hospital on 24 September under the defendant’s care where she was again treated with intravenous antibiotics and the problem resolved, all of which was consistent with his diagnosis of pelvic inflammatory disease.

36 On 5 March 1993 (L 23) she complained of arthritis in the cervical region for which she was hospitalised.

37 On 10 September 1993 she again saw the defendant with a Bartholin’s cyst. She was admitted to hospital the following day for treatment where she remained until 23 September when she was discharged home and prescribed Flagyln Keflex. Six days later on 29 September she was back complaining of irritation of the vulva and thrush.

38 The plaintiff again saw the defendant on 29 September, 5, 6, 27 October, 3 November (complaining of pain in the abdomen), 24 November (complaining of pain worse at the site of the cyst), 1 December 1993 and 14 January 1994. In the meantime, the osteoarthritis in her neck had been causing her trouble and she had been seeing Dr John Ditton at Royal Prince Alfred Hospital Pain Clinic (and had been prescribed Endone for the neck pain).

39 On 28 March 1994, Mrs Booth attended on the defendant, referred by her then general practitioner, Dr Kumar. She told him that she had been bleeding between her periods for about six weeks beforehand and had had some discharge. The defendant examined her and did not find any clinical reason for her bleeding but informed her that because it was abnormal bleeding, he would need to sample the tissue and this would require a curette. She also informed him that she was seeing a rheumatologist for what appeared to be DLE (lupus) and the defendant asked her to return in three weeks when he would have some details of what the condition was.

40 The same day he wrote to Dr Kumar (L 72) noting the referral and stating that he had advised hysteroscopy after the rheumatologist had seen the plaintiff. He apparently then referred her to Dr Jeffrey R Eisman who saw her on 8 April after which he wrote to Dr Kumar with a copy to Dr Di Francesco (L 70/71) where he described her as, “this very personable 49-year old lady”. The letter went on to state that she did not have symptoms suggestive of lupus but had incontinence, restriction of neck movements in all directions, etc, that a CT scan of her cervical spine revealed spondylolosthesis of C4 on C5 and narrowing of C5/6 and C6/7. He considered that her symptoms were more related to the diffuse fibromyalgia syndrome and some osteoarthritis rather than lupus, and noted that Dr Di Francesco would like to perform a D&C (curettage) and “there is certainly no contraindication to this”.

41 Following receipt of this letter from Dr Eisman, the defendant saw the plaintiff again on 18 April 1994, and he told her that they could go ahead with the D&C. She then informed the defendant that she had a family history of cancer of the breast, being an aunty and a cousin on both sides of the family, and she also told him that she had had some hot flushes. He ordered some hormonal levels because of the hot flushes and her age and gave her the form to take to the hospital to organise an admission for the curette.

42 The D&C and hysteroscopy was carried out on 5 May 1994 at President Private Hospital and the histopathology report is noted at para [16] above.

43 The plaintiff returned and saw the defendant again on 17 May 1994. He said he told her that he had received the pathology report and that the histology on the curettage revealed focal adenomatous hyperplasia. He informed her that was a condition of the lining of the uterus which may progress to a more serious form called atypical hyperplasia and that this occurs in approximately 20% of cases, or in one person out of five who has the condition. He also told her that there was a small risk that it could turn into a malignancy and he nominated the number of 3% or three in one hundred people who had the condition. He also told her there was an 80% chance that if the condition was left alone, it would reverse to normal, in other words, in 80 patients out of 100 who had the condition it would reverse to normal without any treatment.

44 As to the possible treatments available, he told her there was hormonal treatment available to treat the condition which would diminish the chance of it progressing, and in some cases if it did progress, as he had said to her previously, the treatment would be hysterectomy. He also told her that in order to assess whether there was any progress it would need to be sampled by curettage, as it had been done before, in three or four months time. He said he also indicated to her (as had been discussed previously) that if she ever needed to have a hysterectomy, because she had adhesions, had had pelvic infection in the past, and as she was approaching menopause, that it would be better to have her ovaries out too.

45 He told her that there was treatment available and she could take a tablet known as Primolut, cyclical every 14 days of the month, for three to four months and when she came back they would have to sample the endometrium by curettage to see that there was no progression. In reply, Mrs Booth said that she understood, that she would take the prescription that he offered her for the Primolut, that she would take it and return in three to four months, and he in fact gave her the prescription (T 372-3).

46 He could not recall telling her that she had “abnormal cells”, but could not be sure that he did not (T 454), and did not recall telling her the cells were precancerous (T 455).

47 He denied telling her she could have continuous curettes (T 457) and did not recall her saying that she did not want any further curettes because she had previously had her uterus pierced (T 457).

48 This evidence of the defendant is consistent with the relevant answers to interrogatories (Ex N) and also consistent with his notes of the consultation (L 31), although the notes contain no reference to the details of the conversation and merely note: “discussed therapy, progestongenic and repeat D&C, hysteroscopy or TAHBSO” and note the prescription for Primolut N.

49 When it was specifically put to him in cross-examination, he claimed to have told her that there was no sign of cancer yet (T 438), that if all the hyperplasia had disappeared after the review D&C, the risk of cancer subsequently developing was small (T 451) and that a total abdominal hysterectomy should be the very last resort (T 449), but none of these statements had been included in his considered answers to interrogatories, and I am not satisfied that these propositions were put to her in those or similar terms.

50 Following this consultation he wrote a letter to Dr Kumar dated 23 May 1994 (L 73) as follows:

“Mrs Margaret Booth D& C, hysteroscopy on 5.3.94 revealed adenomatous hyperplasia. As you know this may progress to endometrial carcinoma.

I have discussed her options, hysterectomy, or progesterone therapy with follow-up hysteroscopy. She has chosen the latter and I have commenced her on Primolut N.”

51 Six days later (23 May 1994) she returned and told Dr Di Francesco that she was unable to tolerate the hormone (Primolut N) because it was causing her nausea, and she had ceased taking it. She also said that she wished to go ahead and have a hysterectomy, to which the defendant replied that, if she was considering that he wished to discuss with her the possible complications that might occur, that she did suffer with pelvic infection, that she did suffer with adhesions which were caused by the infection and that there would be a high risk of complications.

52 He told her that she did not have to go ahead with the hysterectomy, that if she could not tolerate the hormones, they could just simply wait for three or four months because there was an 80% chance there would be no progression and she would not need any further surgery. She said that she was concerned about the 3% risk of developing cancer and that she wished to proceed with the hysterectomy.

53 The defendant told her that she should think about this further before she came to a final decision because, as he had stated before, in 80% of cases the condition reversed normally without any treatment. He indicated to her that there were other complications which could happen in any operation such as blood loss, infection developing, and clots in the vessels; and he referred to possible things that they could do to try and diminish the occurrence of such complications, namely antibiotics, anticoagulants and autologous collection (meaning having her own blood collected weeks before the operation so that it could be used if required, rather than using donated blood).

54 He did not prescribe any other hormones because he felt that if she was unable to tolerate the low dose of Primolut N which he had previously prescribed, it was unlikely that she would be able to tolerate the only other real alternative which was then available, of which he was aware, namely medroxyprogesterone or its trade name Proviron. She was to think about it for one to two weeks. (T 374-6).

55 It would appear that Dr Di Francesco may have been behind in his correspondence because I have already noted that on 23 May he wrote to the referring doctor, Dr Kumar, concerning the consultation on 17 May and he then added a PS to that letter, apparently after seeing her on 23 May, as follows:

“P.S. She returned unable to tolerate the Primolut. Her options now are observation alone or TAHBSO.”

56 In cross-examination he agreed (T 418) that he could not specifically recollect telling her that the surgery might result in a vesicovaginal fistula but said it would have been his practice to have a diagram and show the patient what he proposed to do, and that the matters routinely shown to every patient prior to doing a hysterectomy would have included that there could be fistulas.

57 She returned on 3 June 1994 and said that she had thought about it and still wanted to go ahead with the hysterectomy because she was frightened that she would get cancer in the future. She also said that in any case she may need to have a hysterectomy if she did wait three to four months if there was a progression of her condition.

58 The defendant said that he emphasised to her that the operation of D&C was of less complications than a hysterectomy and she should consider waiting for the three to four months and having the D&C done. She again said she wished to go ahead and that she was quite sure about it and that was her decision.

59 The defendant discussed with her in more detail the complications that could happen because of the previous conditions of pelvic infection, operations that she had before and the expected adhesions. He told her that it was his assessment that she had adhesions along the previous abdominal scars, that he ought to get a bowel surgeon who had more expertise in dividing these adhesions in order to enter the abdomen, that as she had previously seen Dr Yee he suggested that they get Dr Yee, and that he had already spoken to Dr Yee who would assist to free the adhesions if she went ahead with the hysterectomy. He said he also told her again about other possible complications, and mentioned that when dealing with adhesions which are thick that there is a possibility of entry into some of the organs of the abdomen, and in particular he mentioned the bladder and the bowel. He said (T 380) that when telling her about the adhesions he told her in effect that the hysterectomy in itself would lead to more adhesions which might lead to increased pain in the future.

60 Meanwhile he had spoken to Dr Eisman, who had replied to Dr Kumar with a copy to Dr Di Francesco by letter dated 25 May 1994 (L 69), that is only two days after the consultation on 23 May and she had told Dr Eisman that she was to have a hysterectomy, suggesting that she at least had made up her mind by that time. I note in Dr Kumar’s papers, a letter from Dr S Raj Sundaray, dated 19 May 1994 (at D 126), the foot of which he notes an appointment was cancelled as she was to have a hysterectomy “cx cancer (?)”.

61 As usual, Dr Di Francesco’s notes of this consultation on 3 June are brief. He notes that she has had a urinary tract infection for which Noroxin was prescribed and she was to have a TAHBSO which was booked for the President Private Hospital on 21 July 1994 (23 June having previously been crossed out). Dr Di Francesco’s evidence about discussing the adhesions and the engagement of Dr Yee is corroborated by inclusion in the note of the words, “with F Yee”, but once again no details of what possible complications were discussed are noted.

62 In evidence (T 377) Dr Di Francesco said that he did not find it unusual or surprising when Mrs Booth indicated that she wished to proceed with a hysterectomy rather than a further D&C investigation in three months time because it was not an unusual request from patients in a similar condition to Mrs Booth, that is women about her age who are in the peri-menopausal stage, who are told that they have a risk of 3% of developing cancer in the future and it requires observation over a period of time. Such women sometimes choose to have a hysterectomy to cure their condition.

63 The hysterectomy was carried out on 21 July 1994 with the assistance of Dr Yee, but in the course of the surgery a swab slipped into the bladder wall and ruptured the wall in the nature of a bladder tear. He identified it in the course of the surgery and repaired it. He said the repair was successful because when Mrs Booth left hospital there was no leakage, she had not had significant pain with distension of the abdomen, and there were no symptoms of urine in the abdominal cavity, although she did complain of dysuria.

64 On investigation it was found to be a consequence of a vesicovaginal fistula, being a connection between the bladder and the vagina, which can arise from an infection. The defendant, in conjunction with Dr Korbel attempted the repair of the fistula but was unsuccessful, and after that time he ceased to have any further involvement in the plaintiff’s care and management.

65 In cross-examination, he agreed the plaintiff had a large psychological overlay (T 400) that the hysterectomy was major, high risk surgery (T 401-2) but also when asked about the psychological overlay and her limited education, he said she was within the range of patients that he had (T 446).

66 Dr Andrew Korda is a specialist gynaecologist with a particular interest and expertise in gynaecologic urology and it was under his care that the plaintiff was admitted to King George V Hospital on 2 February 1995 with a diagnosis of vesico-vaginal fistula. On 9 February she underwent a cystoscopy, an examination under anaesthetic, which confirmed the presence of vesico-vaginal fistula just above the right ureteric orifice. Due to inaccessibility it was not possible to repair the fistula via a vaginal shunt, so on 23 February he carried out a combined abdominal-vaginal closure of the vesico-vaginal fistula with an omental lap graft in between the vagina and the bladder. A supra cubic catheter was used for drainage post-operatively.

67 In April 1995 there was a recurrence of leakage and a cystogram confirmed that the vesico-vaginal fistula had reoccurred, so on 24 April 1995 he undertook a further laparotomy and again repaired the fistula and since that time there has been no recurrence of the fistula.

68 In his opinion, the hysterectomy performed on 21 July 1994 resulted in the development of the vesico-vaginal fistula, which was subsequently repaired on two separate occasions, and as a result of that hysterectomy, and the subsequent repair jobs, the plaintiff has developed adhesions and severe abdominal pain which has resulted in an incapacity to function as a normal human being.

69 He said there were no obvious indications for the performance of the hysterectomy on 21 July 1994. Histopathological report of the curettings obtained at the time of the dilatation and curettage on 5 May 1994 revealed focal (i.e. local) adenomatous with hyperplasia but with no significant atypia, and the histopathological examination of the removed uterus on 21 July 1994, confirming the presence of disordered proliferative endometrium and other abnormalities, did not suggest the presence of malignancy. He considered that the performance of the hysterectomy was not indicated and was a departure from the standard of care expected of a reasonable gynaecologist. He also considered that the repair of the bladder damage at the time of the hysterectomy was appropriately performed, although unfortunately unsuccessful.

70 He said that in the light of the plaintiff’s psychiatric condition as described by Dr Phillips in his reports, he considered that Dr Di Francesco should have taken further steps to ensure that she understood the explanation and advice he was giving her, but later conceded that this material would not have been available to Dr Di Francesco at the time of the consultations in May 1994.

71 Dr Batchelor is a clinical neuro psychologist who examined and tested the plaintiff twice on 22 November 2001 and 7 June 2002. On tests performed she found that the plaintiff’s verbal IQ fell in the borderline range (73), her performance (non verbal) IQ in the retarded range (67) and her Full Scale IQ also in the retarded range (67) and is functioning in the first percentile (lowest 1 per cent) of the general population. Her highest score was on the verbal comprehension index (low average 9th percentile) in keeping with the witness’ impression that she was able to comprehend information on a simple conversational level.

72 However, having observed the plaintiff in the witness box where her answers, particularly in cross-examination, were responsive and generally clear, and bearing in mind that she lives independently and alone (although it might be described as a simple existence) and before her marriage worked as a shop assistant, whilst I accept the plaintiff is of low intelligence with only minimal education, I have difficulty in accepting that she generally functions in the retarded range or first percentile. Her communication skills (as displayed in the witness box) appear to me to be adequate provided the concepts are not too complicated and are expressed in simple terms and Drs Korda, Phillips and the occupational therapist (Deborah Hammond) all appear to have been able to communicate with her without undue difficulty – compare T 221-223.

73 Dr Robert Lyneham is a gynaecologist who furnished a number of reports and gave evidence without actually examining or interviewing the plaintiff.

74 He considered that, having regard to the focal nature of the endometrial hyperplasia, she had experienced just one episode of intermenstrual bleeding, the fact that the pathological description of the endometrial hyperplasia appeared to be of a less serious type, that there was no evidence of atypia, and her past history of three laparotomies including an operation to repair a perforated uterus, he was of opinion that the defendant should have treated the plaintiff conservatively for her adenomatous hyperplasia, and that the total abdominal hysterectomy was not properly required to treat Mrs Booth’s condition.

75 Dr David W Gronow is the medical director of the Sydney Pain Management Centre at Parramatta who interviewed and examined the plaintiff on 19 November 2000 at the request of the defendant. His report is interesting for a number of reasons not particularly related to pain management. She told him that when she first consulted the defendant in 1986 for abdominal and pelvic pain he was initially very supportive of her, but his attitude changed, she believed that the reason why he recommended the hysterectomy was for his financial gain, and this was indicated because he required her to join a private health fund so that he could continue treating her, although the evidence establishes that she was already a member of a private health fund when she first went to see Dr Di Francesco in 1986, and certainly he did not require her to join a private health fund shortly before she had the hysterectomy.

76 Dr Gronow said that Mrs Booth related all her current symptomatology and disabilities to the hysterectomy, but on questioning about her previous health care she was very evasive, focusing only on the hysterectomy and the subsequent events as relating to her present level and disability. She also told him that, while she had adhesions prior to the surgery, these did not bother her and that she had other medical history including lupus some years ago, occasional pains in the joint, osteoporosis which she believed was due to the hysterectomy, and she also referred to some osteoarthritis which was present prior to the surgery and she denied ever having any treatment for this, although other evidence in the case indicates that shortly prior to the hysterectomy she was under the care of Dr John Ditton for the osteoarthritis. It was due to a prolapsed bladder and some urinary incontinence that she was put on an invalid pension prior to the hysterectomy.

77 Dr Peter Grant is the director of the Gynaecological Oncology Department at the Mercy Hospital for Women, Melbourne with extensive qualifications in that field. In his report of 10 June 2001 he said that the diagnosis of adenomatous endometrial hyperplasia can have significant implications for a patient’s long-term health, that this diagnosis as it was understood in 1994 implied a small but definite premalignant potential, and he cited articles highlighting not only the increased risk of malignancy, but also the difficulty in interpreting the data at that time and recommending either progesterone or hysterectomy in older women.

78 He was of the view that, as the plaintiff was unable to tolerate progesterone therapy, the preferred therapy should have been removal of the uterus because the rate of progression of untreated adenomatous hyperplasia endometrial cancer in peri-menopausal women is unclear, but may be significant, and the risks of repeated hysteroscopy and curettage in a patient who has already had one uterine perforation and repeated episodes of repeated pelvic infection is of concern, carrying with it the risk of exacerbation of pelvic infection and/or a further perforation.

79 He considered that the defendant arranging the presence of a general surgeon to assist in dealing with the adhesions, suggested considerable attention to care and planning of the operation.

80 As to the development of the fistula, he noted that post-operatively there did not appear to be any urine damage to suggest an inadequate repair, the urine output from the catheter as recorded in the nursing notes appeared to be appropriate, and this supported the fact that the initial repair was not leaking, and was surgically sound. He noted that on the seventh post-operative day the nursing notes record that the patient stated that some urine had been passing around the catheter, an adequate volume of urine following the removal of the catheter, and that no further involuntary loss was recorded until after her discharge from hospital. He therefore concluded that the fistula started to leak on or subsequent to the seventh post-operative day, rather than leaking from the bladder repair at the time of the original operation.

81 In summary he said:

“I consider that the decision to proceed to a TAHBSO was indicated and was the best decision in this clinical situation.

The bladder tear was related to very difficult surgical conditions and appears to have been dealt with in an appropriate manner …

Many of the plaintiff’s injuries and disabilities were present to some degree prior to the TAHBSO. In particular the abdominal pain and adhesions were documented prior to the TAHBSO and this procedure did not cause the adhesions. I do not consider that the operation, which was unavoidable, is a significant contributory factor in the occurrence of these adhesions.”

(He qualified this in oral evidence by saying it was unavoidable when medical management, i.e. progesterone treatment, failed.)

82 I found Dr Grant a very good, fair, knowledgeable and frank witness.

83 Dr Watson, in his report, based on his extensive review of documents, the observations when he interviewed and examined Mrs Booth, and Dr Caine’s report, was of the opinion that she is of below average intelligence and has a psychological makeup that presents great difficulties when she interacts with doctors, undergoes treatments and experiences complications. However, he was of the opinion that she was capable of understanding what was put to her at the relevant times by Dr Di Francesco. He noted that she was clear in much of her history and apparently very clear in the details she gave about her interactions with the defendant, the unsuccessful and successful operations. Her information was given in an orderly fashion for parts of the interviews, seemingly when it suited her. In his opinion she displayed significant knowledge of the nature of her many conditions and what had been done at different times, by different doctors. He did however point to a number of inconsistencies in her histories compared to the records that were available to him.

84 Dr Skinner, psychiatrist, interviewed the plaintiff at her rooms in the city on 26 February 2002. She said that the plaintiff told her that the defendant told her that she had cancer when in fact she did not, and gave her three options, that she could have medication but she rejected that option because she could not tolerate the side effects, that she could have a repeat D&C but she did not want that because she had previous experience of a perforated uterus, and that the defendant recommended that she should have a hysterectomy. She had not considered seeing another doctor for a second opinion but the report goes on, “Mrs Booth said that her general practitioner, Dr Kumar “pushed” her into having a hysterectomy”.

85 She noted that the plaintiff had a long history of psychological problems and saw a psychiatrist at Royal Prince Alfred Hospital from 1970 to 1976 when her history of drug dependence, poor coping skills, anxiety and depression were referred to, as was her tendency to somatise. She considered that the plaintiff is of lower than average intelligence, but not in the intellectually handicapped range and certainly not in the lowest 1% of the population. This is evident by the manner in which she presents and is able to give a clear and coherent history with attention to details of her medical treatment, medical terminology, names of doctors, medications and dates.

86 Professor Hacker, a gynaecological oncologist and director of the Gynaecological Cancer Centre at the Royal Hospital for Women, reviewed all the documents, but had not spoken personally to the plaintiff. He considered that the hysterectomy was indicated and reasonable given the plaintiff’s particular circumstances, and gave as his reasons:

1. the patient was given the option of observation but elected to have surgery;
2. the patient was given a trial of progestogens but was unable to tolerate them;
3. a small proportion of patients with hyperplasia in the curettings will have carcinoma in the hysterectomy specimen;
4. the patient had a family history of breast cancer in two aunts and one cousin which would have increased her own risk of developing ovarian cancer and also her risk of developing serious carcinoma of the endometrium, although the risk of the latter would still be very low; and
5. she was 49 years of age and had a long history of pelvic pain thought to be due to pelvic inflammatory disease.
He said that as an oncologist he not infrequently sees patients whose curettings show some type of endometrial hyperplasia but when the hysterectomy is performed there is invasive cancer present in addition to the hyperplasia.

87 In oral evidence he said that relying on repeated curettings for the treatment of cancer is not a sufficient or appropriate treatment. He agreed that the hysterectomy was high-risk surgery for her and he was not aware of the plaintiff’s intellectual impairment.

88 Unfortunately there was no evidence from Dr Kumar, the plaintiff’s general practitioner at the time. Copies of his clinical records and correspondence were in evidence (Bundle D) but the former were virtually indecipherable. On the last day of the trial, evidence was led of attempts to locate him but, whilst I feel the efforts were only cursory and half-hearted, I do not feel justified in finding that his absence is unexplained or that I should infer that his evidence would not assist the plaintiff.

89 However, such a finding does not provide positive evidence supporting the plaintiff. She said that after the consultation with the defendant on 17 May, she saw Dr Kumar, who told her she had to have the operation or she would be dead in five years (T 75). If by the time she spoke to Dr Kumar the latter was aware of the hysterectomy results, I cannot imagine him making that last comment, but likewise I cannot imagine her not discussing with her general practitioner whether or not to have the operation and whether or not to get a second opinion.

90 I am satisfied the defendant did not tell the plaintiff that she had cancer and this I understand is now conceded (T 603). There was absolutely no reason for him to tell her so when the pathology results did not indicate it, and he was suggesting other appropriate forms of treatment (e.g. Primolut N followed by D&C in three to four months time).

91 Whether the plaintiff misunderstood the defendant and believed he was telling her she had cancer, when he was not, is a more difficult question. She was a person of modest education and of limited IQ, although I emphatically reject the proposition that she is in the lowest percentile of the population; having regard to the fact that she lives alone, manages her own life and her limited finances, can and does travel to medical appointments etc, and most particularly by reason of the manner and detail of her answering questions in the witness box. A number of other doctors have commented on her appropriate presentation and history- telling.

92 I have great difficulty in accepting that she believed she had cancer if she was told, as she claims, that one of her options was to “do nothing”. In addition, after the consultation on 17 May 1994 she could not have believed that she “had to have” the hysterectomy because she was at that stage on the alternative treatment, namely hormone therapy (Primolut N).

93 She was for many years before the hysterectomy focused (if not obsessed) on her physical symptoms and medical condition which it appears had become her main interest in life. She was at the time leading up to the hysterectomy particularly conscious of cancer; she had had a lipoma removed from her left breast, and on 18 April 1994 she told the defendant that her aunt and cousin had both suffered from cancer of the breast. In these circumstances it is possible that she assimilated the potential for future development of cancer with a current existing condition, or alternatively when told cancer might develop she was prepared to treat that as though the cancer was already present so as to be on the safe side. Although the defendants version of what he told her contains a lot of difficult technical terms, the plaintiff does not claim she did not understand those terms, and said that the defendant told her she had cancer, in those terms and I am satisfied that he did not and I note the evidence from Professor Hacker (T 592) that in the case of some persons (e.g. with personality disorders) once they hear a reference to “cancer” they block out everything else.

94 A difficulty about the plaintiff’s evidence is that on a number of issues her evidence appears to be inaccurate including:

(a) whether she was prescribed Endone before the hysterectomy,
(b) whether there was massive loss of urine immediately following the hysterectomy whereas the nursing notes suggest the discharge only became apparent about seven days after the surgery,
(c) whether her lifestyle and disabilities since the hysterectomy have been significantly different to beforehand,
(d) her claim that the defendant required her to join a private health fund, and
(e) the history she gave to Dr Gronow described above.

95 These matters raised serious issues as to the reliability of the plaintiff’s evidence, although I accept that she was endeavouring to tell the truth as she now believes it to be.

96 In all the circumstances, I am not satisfied that she believed she had cancer although she probably believed there was a real danger that she could get it.

97 Although it was initially pleaded that the defendant negligently damaged and/or inadvertently repaired the plaintiff’s bladder in the course of the surgery, such allegation was abandoned prior to the hearing, and the plaintiff’s case at trial was essentially twofold:

1. That the defendant should not have carried out the hysterectomy on 21 July 1994.
2. That the defendant failed to advise the plaintiff appropriately and/or failed to ensure that she properly understood the advice given, namely that she was not suffering from cancer and it was not necessary (or in the circumstances of the plaintiff’s medical history, advisable) to undergo such hysterectomy.

98 I have already summarised the opinions of Dr Korda and Dr Lyneham in the plaintiff’s case and Professor Hacker and Dr Grant in the defendant’s. They are all well qualified in their fields and their respective opinions carry considerable weight.

99 However, having regard to the opinions of Professor Hacker and Dr Grant, whose reasoning I found persuasive, and bearing in mind that it is a subject on which expert professional opinion may legitimately differ, I am not satisfied that it was inappropriate or negligent to carry out the surgery in the plaintiff’s circumstances where there was a risk of cancer developing, she was aged 49, was peri menopausal, did not want any more children, did not want repeated D&Cs at intervals and was unable to tolerate the hormonal treatment.

100 This was so notwithstanding her previous history of adhesions, perforated bowel, etc in circumstances where the defendant took the precaution of having a bowel surgeon (Dr Yee) on hand to assist, and the evidence is that a lot of women in the position and circumstances of the plaintiff choose to have the hysterectomy.

101 It may well be that if the defendant had persuaded the plaintiff not to have the hysterectomy and later tests showed the development of endometrial carcinoma, it would have been claimed that the defendant was negligent in exposing her to the risk of such development.

102 Even if the plaintiff did believe that she was suffering from cancer and underwent the hysterectomy because of that erroneous belief, that is insufficient to establish liability on the part of the defendant.

103 Whilst a medical practitioner has a duty to explain to the patient his or her condition, what he intends to do, and its implications, and must do so in such a way that the patient can understand: Abbas v Kenney [1996] 7 Med LR 47 at 51, there is not a duty to ensure that the plaintiff understands; the duty can only be to take reasonable care to explain the relevant matters in reasonable language.

104 I am satisfied on the whole of the evidence that the defendant did this and that he had no reason to believe that his explanation was not understood. The plaintiff had been the defendant’s patient for eight years and during that time he had not had difficulty in communicating with her and he said she was not unlike a lot of his other patients. A number of doctors referred to her facility in describing her symptoms and history. Dr Di Francesco did not have access to Dr Phillips’ or Dr Batchelor’s assessments of the plaintiff’s intellectual capacity, and none of the many medical practitioners whom she had previously consulted had seen the need to take specific precautions when giving her information.

105 It was however suggested that the defendant should have given her the information on the results of the hystoscopy in written form or had her bring a friend along to have them explained. With the plaintiff’s limited literary skills it is difficult to see how a written explanation would have helped, and as to bringing a friend, it would depend very much on the capacity of the friend. In some cases, it could easily render the situation much worse.

106 For these reasons the plaintiff has failed to establish that the defendant was negligent advising the plaintiff the results of the hystoscopy of 5 May 1994 or the treatment options available to her at that time, or in performing the hysterectomy on her and there will be judgment for the defendant.

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Last Modified: 05/07/2003