Burke v Humphrey
[2001] TASSC 133
•21 November 2001
[2001] TASSC 133
CITATION: Burke v Humphrey [2001] TASSC 133
PARTIES: BURKE, Suzanne Mary
v
HUMPHREY, Dennis Charles
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: 307/1988
DELIVERED ON: 21 November 2001
DELIVERED AT: Hobart
HEARING DATE: 8 - 10, 14 - 17 August, 10 - 12 September 2001
JUDGMENT OF: Cox CJ
CATCHWORDS:
Professions and Trades - Medical and related professions - Medical practitioners - Liability in tort - Duty to warn of risks - Failure to warn patient of risk of pregnancy after tubal ligation.
Aust Dig Profession and Trades [197]
Torts - Negligence - Essentials of action for negligence - Standard of care - Generally - Relevant principles - Element of what is reasonable in relation to duty of care - Whether in the circumstances there was a breach of a duty of care.
F v R (1983) 33 SASR 189; Rogers v Whitaker (1992) 175 CLR 479; Rosenberg v Percival (2001) 178 ALR 577, followed.
Aust Dig Torts [46]
REPRESENTATION:
Counsel:
Plaintiff: D J Gunson, K J Monaghan
Defendant: K B Procter SC, A J Denehey
Solicitors:
Plaintiff: Gunson Williams
Defendant: Murdoch Clarke
Judgment Number: [2001] TASSC 133
Number of paragraphs: 41
Serial No 133/2001
File No 307/1988
SUZANNE MARY BURKE v DENNIS CHARLES HUMPHREY
REASONS FOR JUDGMENT COX CJ
21 November 2001
This is an action for damages for medical negligence and breach of contract. The plaintiff, then a 31 year old married woman, on 31 May 1985, underwent a laparoscopy performed by her gynaecologist, the defendant, in the course of which her fallopian tubes were ligated by the application of Hulka Clips. Notwithstanding the operation, approximately 13 months later she was found to be pregnant and she gave birth to a child on 2 March 1987. In the course of labour, the defendant, who was attending her as her obstetrician, found it necessary to perform an emergency lower segment Caesarean section to deliver the child. In the course of suturing the incision after the delivery, a suture pierced her left ureter and within two days, the ureter being occluded by it, she sustained severe pain necessitating a remedial operation performed by a urologist, who was assisted by the defendant. She claims damages against the defendant for his failure to warn her prior to the ligation of tubes procedure that it could not be guaranteed one hundred per cent fail safe, but had a known failure rate; for negligently or incompetently performing that operation as a consequence of which the sterilization procedure was ineffective; and for negligently inserting the suture into her ureter. As the trial progressed, it became apparent that the tubal ligation method employed by the defendant had not been performed negligently, but that the tubes had recanalised by a natural process of healing and this part of the claim was abandoned, save for an allegation that the defendant was negligent in failing to use a more reliable method to achieve sterilization than the application of Hulka Clips.
The plaintiff was married to her present husband in 1980. Their first child was born on 13 January 1981 and on 7 April 1983, she gave birth to twin boys. She is a nursing sister by profession and after three years of general training and one year in the oncology unit of the Royal Hobart Hospital, she carried out an intensive care course in 1975, topping her class. The following year she went to England and did midwifery in Hertfordshire for 12 months, again topping her class. After travelling around for some time, she returned to Tasmania and in 1979 she was appointed charge nurse at the intensive care unit of the Royal Hobart Hospital. She worked until late in her first pregnancy and took off 12 months before returning on a part time basis, working night duty in the intensive care unit.
The plaintiff first consulted the defendant on 8 November 1977 complaining of lower abdominal pain and painful periods. She had a Dalcon Shield which he removed, believing it to be the cause of her pain. In May 1978, she sought his advice on contraception and he prescribed an oral contraceptive which she said, six months later, caused her to be depressed. It was decided to insert an inter-uterine device (IUD) and this was done in January 1979. In March 1980, she complained of deep dyspareunia or pain with intercourse which the defendant treated as a mild inflammatory disease around the IUD. In May 1980, she returned, pregnant with the first child and the IUD was removed. The defendant treated her during most of this pregnancy, but was away for the confinement, the delivery the following January being carried out by Dr Fullerton. On a post-natal visit, the defendant fitted a further IUD and a pap smear revealed some abnormalities which were treated satisfactorily. On 1 October 1982, she saw him again, stating that she had had her IUD out in the first week of August because she was getting pain from it and was using a diaphragm, but had become pregnant. An ultrasound in November confirmed the presence of twins. The plaintiff said in her evidence that the first pregnancy was unplanned, but the second was not; but the defendant's clinical notes suggest the reverse. Whichever is the true position, what is significant in my mind is the fact that by the time that the sterilization procedure was mentioned in May 1985, the defendant was aware that the plaintiff had already had one unplanned pregnancy, notwithstanding the use of a barrier method of contraception and had unexpectedly had twins, giving her a family of three boys with the eldest barely two years old at the birth of the twins, and under 4½ years old at the time of that consultation.
The defendant delivered the twins in April 1983 and at a post-natal consultation prescribed oral contraceptives. In April 1984, the plaintiff told him she had changed the oral contraceptive for another and had then used a diaphragm and condoms. At her request, he measured her for the diaphragm and inserted a Copper Seven IUD. In December 1984, she complained of uterine pain and he diagnosed a cyst in her left ovary. He arranged for her entry into hospital some days later, but in the meantime she complained of increased pain and he expedited her admission to the following day. He attempted to treat the cyst laparoscopically, but found it necessary to resort to an open procedure and during the laparotomy repaired the ovary.
On 30 May 1985, the plaintiff was again complaining of lower abdominal pains and pain on intercourse. She brought to the consultation an ultrasound which showed the IUD in place. She had another cyst on the left ovary. The defendant suggested she enter hospital the following day to enable him to check the uterus by a D & C and hysteroscopy and that he would perform a laparoscopy and puncture the cyst. In the course of the discussion, the topic of the IUD and contraception in general was raised and the possibility of the IUD being removed and replaced by a permanent method of contraception canvassed. What form the discussion took and whether the advice given by the defendant was adequate in the circumstances was hotly disputed by the parties and is the first issue to be resolved.
The plaintiff gave evidence that after a discussion concerning her symptoms and, the decision having been made for the defendant to undertake a laparoscopy the following day to deal with the ovarian cyst recurrence, he asked her had she thought of a permanent method of contraception. She responded by saying that her husband and she had thought of it and had actually discussed the possibility of her husband undergoing a vasectomy. According to the plaintiff, the defendant then said, "Well, if you like, in the course of this procedure tomorrow I can remove your IUD and ligate your tubes, if you so wish". He said he used Hulka Clips as the method of ligation and by this she understood that the tubes would be clamped. She said there was no further discussion about this method and at the end of the consultation he told her to go home, discuss it with her husband that night and tell the defendant in the hospital the next day what she had decided to do. He said nothing about the possibility of the Hulka Clip failing, made no mention of any failure rate and she did not ask because she understood his reference to "permanent" as meaning "forever". That evening, she and her husband discussed whether to ligate her tubes in this way the following day and made a final decision to do so. Asked whether, had she been aware that there was a known failure rate with Hulka Clips that would expose her to the risk of pregnancy she would have made that decision, she replied:
"No, I would have sought more information on other methods available, and what the failure rates were. I would have researched it at the time, before I undertook that procedure. And as well as that, I would have probably employed a dual method. My husband would have had the vasectomy, as well as me having had a tubal ligation, but using whatever method was available then that had the obvious - the highest success rate."
She denied that the defendant had explained that he would apply a plastic clip of gold plated stainless steel spring to each tube and that he had showed her such a clip.
The defendant's account of the discussion was based on an imperfect recollection. He recalled the discussion about her symptoms and the decision to undertake a laparoscopy the following day. He said that the topic of the IUD came up in the context of her dyspareunia and tenderness and that contraception in general was discussed. He suggested to her that it might be sensible to have the IUD removed and that in that case she would have to think about some other method of contraception. He recalled the plaintiff telling him that she and her husband had discussed the possibility of a vasectomy and said that "it was basically because of that that we got on to the subject of a permanent method for her rather than for him". He said that as she was coming into hospital for a laparoscopy, he thought it would have been less than good care not to have at least raised the subject with her. As the Hulka Clips were inserted laparoscopically and their application would add very little to time or to the operation, he suggested this course as an alternative to her husband having a separate operation. He had no recollection of specifically discussing the possibility that despite the procedure, she could still become pregnant. As by May 1985 he had performed some thousand sterilizations using Hulka Clips and had, during that time, developed a routine for advising his patients what was involved, he claimed that he had adopted the same procedure in her case and "would have" told her the procedure was permanent, was difficult to reverse, that the use of Hulka Clips was the easiest and best method because it caused so little damage to the tube, and there was no danger to other structures around the tube. His practice was to show his patients a pair of the clips and to explain how they worked. He also said he would tell them that it was not one hundred per cent fail safe, that some patients did fall pregnant and that if pregnancy occurred, it could be an ectopic pregnancy, that is, in the tube, and as such could give rise to danger. At that time it was not his practice to hand any written pamphlet containing advice as outlined above, and he did not believe he gave any such pamphlet to the plaintiff. His understanding and his own experience at that time was a failure rate in the order of 1 in 500, but it was not his practice to quote rates of failure and he confined himself to generalised advice that the failure rate was small.
Although the plaintiff gave her evidence quite categorically and would not admit the possibility of the discussion having any other form or content than that testified to by her, there are some features about her evidence which have caused me hesitation in preferring it to that of the defendant which was somewhat tentative having regard to the difficulties he had in recalling the details of their discussion, especially in relation to advice on the possibility of failure. My first reason for hesitation is her insistence that his reference to a permanent method of contraception was understood by her as meaning one hundred per cent fail safe and that she had been taught during her midwifery course in the United Kingdom that tubal ligation offered one hundred per cent protection against any further pregnancies. I do not accept that she was taught that as a fact and the defence called the Professor of Obstetrics and Gynaecology at the University of Adelaide, Professor McLennan, who, among his accomplishments, had been an examiner for the British Board of Midwives between 1975 and 1977 when the plaintiff undertook her course. It was his evidence that the benefits and risks, including failure rates of temporary and permanent contraceptive methods, were taught to students in midwifery. If, as she claimed, she had topped her class at the midwifery examinations in 1976 or 1977, she would have been well aware that at least some methods of contraception by way of sterilization were known not to be 100 per cent effective. In those circumstances, seizing on the use of the defendant's expression "permanent" and claiming that she understood it to be fail safe does not ring true.
My second reason for hesitation is her claimed lack of curiosity as to the Hulka Clip method. According to her evidence, she was merely told that this was the defendant's method of sterilization and she claimed to have made no enquiry about what was involved, how it worked or whether there were any likely side effects. Having regard to her claim quoted above as to what she would have done in the way of research had she been given any reason to suspect this method might fail to prevent pregnancy, it seems very strange that she should make no such enquiry. The plaintiff claimed that prior to the tubal ligation performed by the defendant in May 1985, she did not know what a Hulka Clip was and had never heard of one before. She said that when the defendant mentioned that he used Hulka Clips as his method of ligation, she understood that ligation was achieved by a clamping of the tubes, although she had not previously heard of any method of clamping of the tubes being used as a means of contraception, but had only heard of ligation being achieved by a method of cutting and tying. Asked in cross-examination what she understood was to be done with the Hulka Clips, she said:
"… That they'd be placed on my tubes.
… As a permanent method of contraception.
… That they would occlude the tube, therefore preventing the egg travelling down the tube".
She said she did not ask the defendant about that, but that it was just her assumption and that notwithstanding her understanding that ligation involved cutting and tying, she did not ask him what the difference was between the latter method and what he was offering. She denied that the defendant had shown her a pair of the clips and had given an explanation of how they worked, but said in examination-in-chief that after she became pregnant and asked him how this could have happened, she had a vague memory of his having shown her something, but that was about as much as she could remember. In cross-examination, after having again denied being shown a pair of clips in May 1985, she said of this memory:
"I believe at one stage when I went back to see Mr Humphrey after I was pregnant I asked him ¾ I was so distressed and I asked him how this could possibly happen and I can recall he showed me something at that time."
Asked what it was, she said:
"Well, I am not sure. I can't recall whether it was a clip. It was something to do with the application of Hulka Clips when I asked him and that was when I was pregnant."
I find it most improbable that the discussion in May 1985 concerning the method of sterilization to be used was as brief as the plaintiff claims. At the very least I find on the probabilities that the plaintiff's understanding that Hulka Clips were applied to the tubes, that they clamped them and hence occluded them to prevent the egg travelling down the tube was not an assumption on her part, but was conveyed to her by the defendant at the consultation before the procedure was applied. Likewise I think it improbable that he showed her Hulka Clips after she became pregnant. On the probabilities, I find that, in accordance with his usual practice, he showed her samples of them before they were applied.
The third reason for hesitation is that upon finding herself pregnant, despite what she regarded as his guarantee that this would not occur, she returned to him for treatment and supervision throughout her pregnancy and confinement without protesting to him that he was at fault in not having told her of the possibility that the sterilization method used might fail. Her return to his care is understandable. In the early stages of this pregnancy, quite unsuspecting of it, she had sought treatment from her general practitioner and had been given medication called Tagamet, which was known to be dangerous to a foetus at that stage of development. Furthermore, as a gastric ulcer was suspected as the cause of her discomfort, she had been given a barium meal and subjected to x-rays, another known source of danger to a child. The defendant recorded in a letter to the plaintiff's general practitioner shortly after she saw him in July 1986:
"I think I was able to allay her fears regarding the barium meal that she had early in pregnancy and the taking of Tagamet. … We'll have a further discussion during the pregnancy as to exactly what should be done afterwards to ensure that this unlikely event does not repeat itself."
On the other hand, although she was clearly unhappy at finding herself pregnant and was very concerned about the x-rays and Tagamet, she did not claim in her evidence that she had blamed him for her predicament and in answer to my question, "Did she blame you?", the defendant replied, "I can't recall her blaming me specifically". It was not suggested to him in cross-examination that she had done so despite the fact that counsel had ample opportunity, including an overnight adjournment, to do so if so instructed. She gave evidence that she asked him "How could this possibly happen?" and that she was shown something, which she suggested could have been the specimen Hulka Clips. The defendant said of this hypothesis that he would have been more likely to have drawn a diagram to explain how the pregnancy could have occurred, notwithstanding the proper application of Hulka Clips. I think it highly probable that she did ask for an explanation, which he gave, and which she accepted as exonerating him from any lack of competence in applying the clips. Subsequent pathological reports confirmed the spontaneous recanalising of the tubes. Her failure in these circumstances to protest at not having been warned that there was a small risk of the clips not being effective to prevent pregnancy is consistent with the defendant's claim that she had been made aware of this fact by him. It was only after the suturing of the ureter in March 1987 that she lost faith in him and ceased to contact him after her last post-natal consultation.
With respect to the defendant's account, a reason can be advanced why his usual practice of informing his patients of the risks and limitations of this form of sterilization may not have been followed in the case of the plaintiff. The consultation had not been primarily directed to the question of sterilization but to laparoscopic treatment for an ovarian cyst. The topic of an alternative form of contraception to the use of an IUD which appeared to be causing pain or discomfort arose incidentally and the option of a tubal ligation during the laparoscopy had been suggested as something which could save possible later surgery upon her or her husband specifically directed to that end. The plaintiff was, to the defendant's knowledge, a trained nurse and might well be thought likely to be aware that tubal ligations could not be guaranteed to provide one hundred per cent protection against the possibility of a future pregnancy. It is not without some significance that in a response to questions concerning his admitted failure to explain what he meant by a "permanent" method of sterilization, he said, "I was talking to a trained nurse". However, it was put to him in cross-examination that because of his knowledge of the plaintiff's nursing qualifications he had concluded that there was no need to go into any detail about the risk of the procedure failing and he denied this possibility saying that he always tried to treat all his patients "whether medically qualified or nursing in the same way".
I am satisfied that both witnesses are genuine in believing that their evidence is a true representation of what occurred. Unfortunately the passage of time, individual perceptions of the justice of their cause or defence, and an unconscious tendency towards reconstruction of events to accord with those perceptions can colour recollections and make them unreliable. Neither party was shown to have been deliberately mendacious about any of the evidence each gave. The plaintiff maintained her version throughout lengthy testimony frequently interrupted to accommodate expert witnesses. She constantly justified her failure to make further enquiry of the defendant by adherence to the claim that he had offered her a method of contraception which was permanent, by which she had understood that it was "forever". She flatly denied being given the warnings and details it was his practice to give. However, despite her adherence to the claim that the only matter of substance imparted to her by the defendant was that he was offering a permanent method of contraception, she did not, on her evidence, mention this fact to her husband that evening when, at the defendant's suggestion, she discussed the question of submitting to a tubal ligation during the laparoscopy scheduled for the following day, and her husband likewise, in his evidence, said that he did not think she made any assertion to him at that discussion that the procedure was "fool proof" and that he merely "took it to be 100%". Thus the alleged fail safe nature of the procedure does not appear to have assumed any significance in the discussion leading to their decision that the plaintiff should forthwith undergo ligation rather than that her husband have a vasectomy at some future time. Such a discussion is consistent with the plaintiff having been told by the defendant that there was a small risk of the clip procedure failing and with her being already aware from her midwifery course that both temporary and permanent forms of contraception had their limitations in terms of effectiveness, as Professor McLennan's evidence suggests she had been taught. It is also consistent with the focus of the discussion invited by the defendant being upon the making of a final decision to adopt a course intended to prevent the possibility of the plaintiff and her husband ever having any further children and to implement it during a laparoscopic procedure the following day, rather than its focus being upon the merits of the particular methods for achieving that result. The defendant, on the other hand, made no pretence to an actual memory of all that he had said to the plaintiff, a position quite understandable in the circumstances of his being an experienced gynaecologist, who had by then performed sterilization procedures by the same method on approximately 1,000 patients. It would have been easy for him, were he dishonest, to have claimed to remember having told her the failure rate was small and having showed her the specimen clips.
Counsel for the plaintiff criticised the defendant for amending some of his evidence. On one occasion he said that it was his practice to advise patients that the Hulka Clip method was the easiest and the best because it caused so little damage to the tube and there was no danger of damage to other structures around the tube. Asked by his own counsel if he explained how such damage could occur with other methods, he replied "The other method that could be used of using electricity, which I had used in the past, raised the possibility of burns to other structures particularly of the bowel". When told by me that the answer was not responsive to the question which had been "was it your practice to tell the patient this as part of the general discussion", he acknowledged that "at that particular time because so few sterilizations were being done by the electrical method I may well not have mentioned this to Mrs Burke". It would appear from this exchange that his initial claim of telling patients that the clip method was the best method, because there was no danger to other structures, may not have been true in the plaintiff's case, because by that stage diathermic methods were less frequently used. Nevertheless, it was a fair qualification of his earlier evidence concerning his general practice when his attention was drawn to the fact that his practice respecting advice in 1985 was the relevant issue. I see nothing sinister in it. A further example was his evidence in relation to a pamphlet produced by Rocket of London, who were retailers of surgical equipment, who had originally sold the defendant the Hulka Clip applicator in 1974, and who regularly supplied him with clips. The pamphlet gave information in respect of failure rates for the procedure and was clearly a discoverable document, but it had not been the subject of an affidavit of discovery by the defendant when he filed one in 1989. I am not prepared to make adverse findings against him because of that default. It is often difficult for a person not trained in the law to determine whether a particular document is relevant and ought to be discovered. His evidence about the receipt of the document was at first that he had obtained it when he originally bought the applicator in London in 1974. That evidence was given in the context of an enquiry in cross-examination as to the discussions about reliability he had had prior to purchasing the Hulka equipment, and he was asked to produce the pamphlet after the luncheon adjournment which was then imminent. After the adjournment he volunteered the information that he was mistaken and amended his evidence by saying that he now believed he had received the pamphlet in 1987 after he had written to Rocket concerning (inter alia) the failure of the Hulka Clips in the plaintiff's case. Once again I am not prepared to draw any adverse inference against him. I accept that the initial statement was a genuine mistake on his part which he corrected at the first opportunity. It was not the case of further questioning having demonstrated the improbability of the earlier statement being true and giving rise to the desirability of extricating himself from an untenable position by a deliberate change in testimony. I find him to be an honest and, on the whole, reliable witness.
On balance I am satisfied that the defendant did explain the Hulka Clip method and demonstrated it by showing the plaintiff the specimen clips as he claimed. He readily admitted (and this was the consensus of the other medical experts called) that he was under an obligation to warn her that there was a possibility of failure and he had no reason to dispense with doing so on this particular occasion, save his knowledge that she was a trained nurse, a factor which I have already addressed. I find on the probabilities that the defendant did warn the plaintiff that there was a risk of the Hulka Clip method failing but that it was a small risk. There was no discussion of the relative advantages and disadvantages of this method over continuance of barrier methods of contraception of a temporary nature or over a vasectomy which might be performed on her husband. The defendant did not volunteer such observations, nor did the plaintiff seek his advice in this regard.
Before dealing with the legal consequences of the advice the defendant gave the plaintiff prior to the tubal ligation on 31 May 1985, it is necessary to make some findings as to the appropriateness of the method in fact used in comparison with other possible methods. This also involves a consideration of the plaintiff's complaint in respect of the carrying out of the ligation that the defendant was negligent and in breach of contract in failing to use a more reliable method of sterilization than the application of Hulka Clips. It is to be remembered that the defendant was consulted and carried out the sterilization in May 1985 and it is by the known standards and practices of that time that his conduct is to be judged. There were at that time several methods of female sterilization ranging from very intrusive surgery, involving the total removal of the uterus (hysterectomy) or of the fallopian tubes (salpingectomy) or ovaries (oophorectomy) to tubal ligation by way of cutting and tying the tubes (Pomeroy's method), crushing or occluding them by Falope rings, Filshie and Hulka Clips, and destruction of a segment of them by electrocoagulation, there being two forms of diathermy namely monopolar and bipolar. No case has been shown in the circumstances of this litigation for the more drastic forms of surgery such as hysterectomy, salpingectomy or oophorectomy at the time of the plaintiff's consultation with the defendant in May 1985. Indeed, as Mr Procter SC for the defendant pointed out in his final address, the plaintiff's complaint as set out in the pleadings is of a failure to advise of the existence of other methods of tubal ligation and to employ a more reliable means of tubal ligation and does not relate to forms of sterilization other than tubal ligation. However, in any event, of the plaintiff's own two expert gynaecological witnesses, Dr Reid agreed that such a strategy "would have seemed inappropriate for" her, while Mr Korda did not advocate that any of these surgical operations should have been conducted. Asked to comment on the best method of contraception to ensure that no further child would be conceived by the plaintiff, he recommended a fimbriectomy which in 1985 was an open procedure and which involved the removal of the finger-like structures called fimbriae at the very end of the fallopian tube which pick up the egg or, alternatively, electrocoagulation of the tube. Given that the plaintiff had been subjected in December 1984 to a laparotomy because of complications in the treatment of her cysts, and the fact that what was proposed the following day was a laparoscopy during which a method of tubal ligation could be performed without recourse to open surgery, there is little to be said in my view in favour of a fimbriectomy. Although the plaintiff expressed a firm intention of not having further children, the evidence clearly establishes that a significant number of patients, notwithstanding adamant expression of such an intention, do change their minds and seek reversal of sterilization. The potential for reversibility is therefore a factor in the choice of the method to be employed. Fimbriectomy is virtually irreversible. Diathermy likewise is very difficult to reverse and has the added disadvantage of the risk of damage by heat to adjacent organs, particularly the bowel. Monopolar diathermy although effective in Dr Grice's view to the extent of having a failure rate of 1 in 500 was very destructive of the tube and made reversibility much more difficult, whereas bipolar diathermy was less effective against further pregnancy but gave a better prospect of being satisfactorily reversed. Furthermore, in 1985 the College of Obstetricians was warning its members that in 50 per cent of cases where pregnancy eventuated after tubal diathermy, ectopic pregnancies were likely to occur.
The plaintiff's gynaecological experts contended that the Hulka Clip method had an unacceptably high failure rate compared with other forms of laparoscopic tubal ligation. Dr Reid, although conceding that in 1985 the use of Hulka Clips was an accepted and appropriate method to achieve sterilization, said that by then there was clear evidence in the published medical literature of a failure rate that had been seriously underestimated at 1 in 500. He claimed that in that year the consensus of opinion of gynaecologists in Australia would have placed the failure rate of Hulka Clip sterilization at 1 in 200 to 1 in 300. He conceded, however, that a number of gynaecologists in Australia would have put it at 1 in 500. I am satisfied that in 1985 it was the generally accepted view of Australian gynaecologists that the Hulka Clip method had no higher failure rate than any other form of laparoscopic tubal ligation. In about that year the Royal Australian College of Obstetricians and Gynaecologists, as part of its continuing education program for the accreditation of its members, circulated an article by Mr Peter J Paterson of the Department of Obstetrics and Gynaecology, Monash University and Queen Victoria Medical Centre, Melbourne, in which he claimed that all sterilization techniques have a significant failure rate and that:
"A further large study conducted on a multi-centre basis has not revealed significantly different failure rates amongst various sterilization techniques. This finding is compatible with the evidence from several recent reviews of the subject which have analysed various techniques including the modified Hulka Clip and the Filshie Clip and found no significant differences in failure rates".
The reference to the modified Hulka Clip is to a modification made in 1979 which significantly reduced the failure rate. This was the type of clip used by the defendant. Failure rates based on the prototype clip which were quoted in some publications in the early 1980s are consequently irrelevant for present purposes. Dr Reid was unable to cite figures for modified Hulka Clips prior to 1996. Mr Korda asserted that the Hulka Clip had a documented failure rate of 36.5 per 1000, but based this contention on a study published in 1996. He also cited an American text book Te Linde's Operative Gynaecology 1985 edition for the proposition that the failure rate of the method, 2 per cent, was somewhat higher than with other laparoscopic sterilization methods, but he conceded that in the 1992 edition of that work, the very sentence containing the reference to the failure rate had been deleted. In addition to the defendant himself, two other specialist gynaecologists/obstetricians gave evidence namely, Dr Grice and Professor McLennan. The defendant said that his understanding in 1985 was that the Hulka Clips' failure rate was about 1 in 500 and that there was very little difference between other comparable laparoscopic techniques. As to diathermy, he considered that the monopolar method involved a great deal of destruction of tissue and had the danger of bowel burns, while the bipolar method caused much less damage, but the failure rate was approximately the same as that of Hulka Clips. He did not regard fimbriectomy or bilateral salpingectomy as appropriate to the plaintiff. Dr Grice gave evidence that in 1985 he understood the failure rate of all laparoscopic methods, as well as the open method known as the Pomeroy method, was of the order of 1 in 500, although bipolar diathermy was recording higher instances of unexpected pregnancies initially. As at 1985 he regarded all the methods he had discussed, namely Hulka and Filshie Clips, diathermy, Falope rings, Yoon rings and Pomeroy as being of about the same degree of effectiveness. Professor McLennan expressed the view that a laparoscopic method was appropriate because:
"It is the least traumatic to the woman. It gives the shortest time in hospital, quickest recovery rate and was as effective as any other non-destructive method of the fallopian tube. So unless you want to take out the whole fallopian tube or the finger - it's called a fimbrae - of the fallopian tube or do a hysterectomy it would be as efficient as any other open method of tubal ligation where you do a laparotomy, which is a bigger cut and a bigger stay and more trauma and more morbidity. So as is then, and as is now, the laparoscopic tubal ligation method is the method most favoured around the world."
He said that the Hulka Clip method in 1985 was a well accepted, reasonable method of tubal ligation and that on the data available he could not say that it was worse or better than any other form of tubal ligation available at that time.
The plaintiff's plea of negligent advice on the day preceding her tubal ligation in May 1985 was that the defendant was negligent in that he:
(a)failed to advise the plaintiff that there were a number of methods of tubal ligation available to the plaintiff;
(b)failed to advise the plaintiff that she could avoid tubal ligation by her husband undergoing a vasectomy;
(c)failed to advise the plaintiff that he proposed to employ a tubal ligation method that involved the application of devices known as Hulka Clips;
(d)failed to advise the plaintiff that the application of Hulka Clips was an unreliable method of tubal ligation;
(e)failed to advise the plaintiff that notwithstanding the tubal ligation there was a risk of pregnancy;
(f)failed to advise the plaintiff that notwithstanding the tubal ligation she should also employ other methods of contraception; and
(g)advised the plaintiff that he would provide her with a permanent method of sterilization without explaining to her what he meant or intended by the use of the word "permanent".
The same particulars were pleaded by way of breach of contract.
In F v R (1983) 33 SASR 189, the South Australian Supreme Court sitting in banco upheld an appeal by a doctor whose patient conceived and bore a child notwithstanding sterilization undertaken to avoid further pregnancy. The appellant had told the patient that she would cut and tie the tubes as she considered this the best form of preventing further pregnancies. She made no reference to the possibility of the sterilization procedure not achieving its purpose of rendering the patient sterile. The patient's husband (also a plaintiff) had asked the appellant about the desirability of his having a vasectomy, but was told by the appellant that there was no sense in the husband being operated on when his wife was being sterilized. The trial judge held the doctor responsible in damages to both plaintiffs in consequence of the doctor's negligence. At 191 - 192, King CJ said:
"What is in question is the scope of the doctor's duty of care. He is required to act reasonably, not only in his actual treatment of the patient, but also in relation to the disclosure of information. In Chatterton v Gerson [1981] 1 All ER 257 Bristow J held that it is 'the duty of a doctor to explain what he intends to do, and its implications, in the way a careful and responsible doctor in similar circumstances would have done'. Ibid at 265. It is my opinion that that is a correct statement of the law, and that the duty extends, not only to the disclosure of real risks of misfortune inherent in the treatment (p 266), but also any real risk that the treatment, especially if it involves major surgery, may prove ineffective.
What a careful and responsible doctor would disclose depends upon the circumstances. The relevant circumstances include the nature of the matter to be disclosed, the nature of the treatment, the desire of the patient for information, the temperament and health of the patient, and the general surrounding circumstances."
At 192, dealing with the patient's desire for information as a factor in what a careful and responsible doctor would disclose, King CJ said:
"The extent of the duty to disclosure must depend greatly upon the patient's expressed or apparent desire for information: Smith v Auckland Hospital Board [1965] NZLR 191. An express and apparently seriously intended request for information necessary to make an informed decision will ordinarily place the doctor under an obligation to give a truthful and careful answer. I say 'ordinarily' because there may be circumstances in which reasonable care for the patient may justify or even require an evasive or less than fully candid answer even to a direct request; and a doctor may in the exercise of his skill and judgment reasonably judge that a request is made, not out of a desire for a frank answer, but out of a desire for reassurance. A doctor should hesitate long, however, before withholding the full truth as to real risks of harm or failure when asked to explain them. Volunteering information is another matter. This clearly involves the exercise of a careful professional judgment."
In Rogers v Whitaker (1992) 175 CLR 479, the High Court was concerned with the failure to warn of a possible, though remote, complication in ophthalmic surgery, the complication in fact occurring and depriving the plaintiff of sight in her good eye while the operation was unsuccessful in restoring sight to the eye intended to be repaired by the surgery. The plaintiff recovered damages for the loss of her good eye. In a joint judgment, Mason CJ, Brennan, Dawson, Toohey and McHugh JJ said at 483:
"The law imposes on a medical practitioner a duty to exercise reasonable care and skill in the provision of professional advice and treatment. That duty is a 'single comprehensive duty covering all the ways in which a doctor is called upon to exercise his skill and judgment' (Sidaway v Governors of Bethlem Royal Hospital, [1985] AC 871, at p 893, per Lord Diplock); it extends to the examination, diagnosis and treatment of the patient and the provision of information in an appropriate case (Gover v South Australia (1985), 39 SASR 543, at p 551)."
At 490, their Honours referred to the judgment of King CJ in F v R (supra) and said:
"We agree that the factors referred to in F v R by King CJ must all be considered by a medical practitioner in deciding whether to disclose or advise of some risk in a proposed procedure. The law should recognize that a doctor has a duty to warn a patient of a material risk inherent in the proposed treatment; a risk is material if, in the circumstances of the particular case, a reasonable person in the patient's position, if warned of the risk, 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. "
Dealing with the case in hand, their Honours observed at 491:
"According to the findings of the trial judge, the respondent 'incessantly' questioned the appellant as to, amongst other things, possible complications. She was, to the appellant's knowledge, keenly interested in the outcome of the suggested procedure, including the danger of unintended or accidental interference with her 'good', left eye. On the day before the operation, the respondent asked the appellant whether something could be put over her good eye to ensure that nothing happened to it.
…The respondent may not have asked the right question, yet she made clear her great concern that no injury should befall her one good eye."
They accordingly treated the risk as material on the second or subjective limb of the test.
Clearly here, with the defendant's knowledge of the plaintiff's history, which included regular contraceptive measures, at least one unplanned pregnancy and one which had produced twins, leaving her with a family of three boys under the age of 2 years, there can be no doubt that it was incumbent upon the defendant to have alerted the plaintiff to the possibility of the procedure failing, for he had ample reason to suppose that if warned of the risk she would be likely to attach significance to it. However, I have found that he did so and I do not consider that he was under any obligation to specify the precise failure rate he believed applied to the Hulka Clip method. In my view, a general statement in the terms he gave that there was a small risk of failure adequately fulfilled his duty of care, especially in the absence of any request for further information or detail.
In respect of the particulars I have set out above, I do not consider the material contained in particular (a) amounts to negligence. The plaintiff did not seek advice on this point and no other method had any advantage over that employed by the defendant. As to particular (b), the plaintiff was well aware of this and she herself raised the subject of her husband undergoing a vasectomy. Particular (c) is not made out. On the plaintiff's own evidence the defendant did advise her that he would employ a method involving the application of Hulka Clips and she appreciated that they would clamp each tube. Particular (d) is not made out because, as compared with other forms of tubal ligation, the Hulka Clip method was not unreliable. As to particular (e), I have found that the plaintiff was advised of a small risk of pregnancy. In respect of particular (f), there was no evidence that would enable me to find that a person in the defendant's position would have been expected to advise the employment of other methods of contraception in addition to sterilization by Hulka Clips. Professor McLennan, when asked about advising a combination of vasectomy and sterilization to ensure guaranteed infertility, said that no patient of his, knowing that there was a small percentage failure rate in sterilization, had asked for that and that he honestly believed none of his colleagues had been offering such advice. Asked about a combination of the Hulka Clip and an IUD, he said that it was theoretically possible to achieve this but certainly not medical practice. Furthermore, in the plaintiff's case, her IUD had been causing complications. In my view particular (f) is not made out. As to particular (g), I have found that the defendant did warn the plaintiff of a small risk that pregnancy might yet occur. In the light of that finding, a failure by the defendant to define what he meant by the use of the word "permanent" was not reasonably required in order to dispel any misapprehension the plaintiff may have had as to what was meant by a "permanent method of sterilization". Even without that finding, I cannot see the particular made out. The use of the phrase came, according to her evidence, in the context of a discussion of the problems she was encountering due to the IUD which was the method then being used by the plaintiff to avoid conception. A reference to a permanent method of contraception in such a context would ordinarily, in my view, be taken to mean a method different from the temporary methods she had previously been using. The primary meaning of the word "permanent" given in the Shorter Oxford Dictionary is "Lasting or designed to last indefinitely without change". Clearly the method was designed to last indefinitely but like other methods, including, to her knowledge, the temporary methods she had used, it may not in fact have lasted indefinitely. To say the defendant was negligent for failing to explain his use of a common English expression is to cast too high a duty upon the defendant in the circumstances.
Any failure by the defendant to advise the plaintiff on the relative merits and/or failure rates of a vasectomy, compared with tubal ligation by means of Hulka Clips, was not the subject of a particular of negligence nor was it advanced as such in argument; but in any event, in my view, the defendant was not in breach of his duty of care in failing to embark upon such a comparison. He was not asked to do so and when he advised the plaintiff that there was a small risk of failure with the clips, as I have found he did, she did not ask advice as to the risk of failure with vasectomy. Mr Korda regarded it as a very reliable method of contraception and said it had a failure rate that was comparable to the best methods of tubal ligation, but that it takes time to be effective, usually three months. Professor McLennan said that given the fact that the plaintiff was about to undergo a laparoscopy, there would be minimal extra surgery required in conducting a tubal ligation at the same time and therefore on a balance of the risks and benefits of vasectomy against that procedure, it was a reasonable option. He pointed out that vasectomy is a smaller operation but can take from four to six months to work and there are other factors like the ages of the husband and wife and their potential reproductive careers to take into account. I think having regard to these factors that a mere comparison of theoretical failure rates, even assuming vasectomies have a better rate of success, would not have been very helpful to the plaintiff even if she had asked for such information. A fully informed and reasoned decision might well have involved detailed discussions with the plaintiff and her husband and consultation with his general practitioner and even a urologist. The defendant was faced with a situation where a patient, anxious not to have further children, was going to undergo laparoscopy the following day and he offered her the opportunity of undergoing a procedure designed to achieve permanent sterilization with the caveat that there was a small degree of risk of it failing to do so. In the absence of any request for advice on alternative procedures, including a vasectomy, it is asking too much, in my view, to expect a gynaecologist in the defendant's position to lay the foundations of some kind of feasibility study upon which the patient may or may not wish to embark.
However, even if there were an obligation to have given further information on comparative failure rates, I am not satisfied on the balance of probabilities that the defendant's omission to do so was causative of the plaintiff's alleged injury. I have found not only that the defendant told the plaintiff that the clip method was subject to a small failure rate, but also that the plaintiff was aware that at least some methods of sterilization were also subject to failure. Despite the latter fact, she did not, on her own evidence, seek to discover whether Hulka Clips were 100 per cent fail safe.
Causation in relation to claims that failure by medical practitioners to warn patients of a material risk that surgery could be attended by adverse complications such as total blindness (Rogers v Whitaker (supra)) or vocal damage (Chappel v Hart (1998) 195 CLR 232) was considered by the High Court in Rosenberg v Percival (2001) 178 ALR 577. The issue in that case was whether the respondent plaintiff had proved that had she been warned of a material risk, she would have decided not to undergo the surgery and thus have avoided the injury. The present case is different in the sense that a decision not to undergo the procedure would not have avoided her pregnancy. On the contrary, it would have enhanced her chances of becoming pregnant. However, her claim is that had she been warned of the risk of the procedure not being effective, she would have taken alternative steps either alone or in conjunction with that procedure to reduce the risk to a minimum. The steps claimed have been set out above, namely:
"… I would have sought more information on other methods available, and what the failure rates were. I would have researched it at the time, before I undertook that procedure. And as well as that, I would have probably employed a dual method. My husband would have had the vasectomy, as well as me having had a tubal ligation, but using whatever method was available then that had the obvious - the highest success rate."
Nevertheless, the dicta of the High Court in respect of an injury consequential upon the undergoing of surgery is equally applicable to an injury in the form of an unwanted pregnancy consequential upon a course of conduct which, in the absence of additional precautions, led to this result. At 580, Gleeson CJ said:
"Ordinary people live their lives surrounded by adverse contingencies that are foreseeable, in the sense that they are not far-fetched or fanciful. Transportation to a doctor's surgery may be accompanied by a foreseeable risk of serious injury in a motor vehicle accident, but such a risk is usually regarded as inconsequential. Even when surgical procedures are classified as elective, most people who undergo such procedures believe they have a serious reason for doing so; and doctors who recommend such procedures normally have the same belief. Thus, information about risk is being considered in the context of a communication between two people who have a common view that there is a serious reason in favour of the contemplated surgery. The more remote a contingency which a doctor is required to bring to the notice of a patient, the more difficult it may be for the patient to convince a court that the existence of the contingency would have caused the patient to decide against surgery."
In the present case, the comment in the last sentence could be made in respect of the patient's decision to abandon the barrier contraceptive measures previously adopted by her and recognised by her as not fail safe, together with the prospect of her husband having a vasectomy in favour of tubal ligation which she had been told had a small risk of failure. McHugh J, at 582, said:
"Under the Australian common law, in determining whether a patient would have undertaken surgery, if warned of a risk of harm involved in that surgery, a court asks whether this patient would have undertaken the surgery. The test is a subjective test. It is not decisive that a reasonable person would or would not have undertaken the surgery. What a reasonable person would or would not have done in the patient's circumstances will almost always be the most important factor in determining whether the court will accept or reject the patient's evidence as to the course that the patient would have taken. But what a reasonable person would have done is not conclusive. If the tribunal of fact, be it judge or jury, accepts the evidence of the patient as to what he or she would have done, then, subject to appellate review as to the correctness of that finding, that is the end of the matter. Unlike other common law jurisdictions, in this field Australia has rejected the objective test of causation in favour of a subjective test."
At 587, he said:
"In terms of causation theory, the critical fact is whether the patient would have taken action - refusing to have the operation - that would have avoided the harm suffered. But that fact can only be determined by making an anterior finding as to what the patient would have decided to do, if given the relevant warning. It is not possible to find what the patient would have done without deciding, expressly or by necessary implication, what decision the patient would have made, if the proper warning had been given. If the court finds that the patient would have decided not to have the operation, it concludes that he or she would not have had the operation. What the patient would have decided and what the patient would have done are hypothetical questions. But one relates to a hypothetical mental state and the other to a hypothetical course of action. The answer concerning the hypothetical mental state provides the answer to the hypothetical course of action. The onus is on the patient to prove that he or she would have decided not to have the operation if given a warning of the risk of harm. That means that the patient must prove what he or she would have decided to do."
This, too, is applicable to the question whether or not the plaintiff's decision and consequent action would have been as she claimed, had the warning, which I have found she was given, been inadequate in that it did not specify a precise failure rate nor evaluate other methods of contraception or a combination of them.
At 597, Gummow J said:
"… causation, in the present kind of case, requires satisfaction of two criteria. The first criterion is a breach of the duty to warn of a material risk, that risk having eventuated and caused, in the physical sense, injury to the plaintiff. The second criterion is that, had the warning been given, the injury would have been averted, in the sense that the relevant 'patient' would not have had the treatment in question.
In Australia the relevant 'patient' for the purposes of the second criterion is the particular patient and, in that sense, the criterion is a subjective one. The question is whether the particular patient would not have had the treatment had a warning been given."
Kirby J agreed that the second criterion mentioned by Gummow J was a subjective one. He had accepted it in Chappel v Hart (supra) at 272 - 273 and it had been earlier adopted in Ellis v Wallsend District Hospital (1989) 17 NSWLR 553. At 616, he said:
"The practical problems presented by adopting a subjective criterion must, however, be recognised. They have been noted in many earlier decisions. When Chappel was before the New South Wales Court of Appeal, Mahoney P commented on the element of 'unreality' that was involved in considering an injured person's ex post assertion of what he or she would have done if given a warning judged later to have been necessary. Allowing that the patient concerned is sufficiently disappointed with the outcome of some healthcare procedure that he or she has ventured upon expensive, time-consuming and stressful litigation to obtain redress, it is scarcely conceivable that such a patient would destroy the case by equivocating in evidence over such a matter."
Speaking of criticisms of the subjective approach, he said at 617:
"… it would be unnecessary to stem any flood of meritless claims, so long as the courts observe the need for 'great care', as suggested by Samuels JA in Ellis (supra) at 582 … ."
At 629, Callinan J said:
"… there is, in my opinion, a real doubt, whether a negative answer to a question, 'Would you have had the operation?', artificially posed, years after the event, and answered, almost certainly, after the patient has suffered unexpected complications, and after repeated innocent rehearsal in making a statement and in conference with legal advisors, can ordinarily carry much conviction, or should provide the basis for an undiscounted award of damages, or indeed, damages at all. A disinterested bystander might well say of such an answer, 'Of course, naturally she (or he) would say that'."
At 632, he said:
"It is perfectly understandable that a person who has suffered what the respondent suffered here would say, and might also even have come to believe implicitly that she would not have had the operation had she known of the risk which has in fact materialised. That would usually be, and it probably was here an honest belief on the part of the respondent at the time that she gave her evidence. However, the true position is much more likely to be, no matter what a plaintiff may have honestly come to believe, that she cannot really say, in an absolute way, that she would have not had the operation. The much more likely position is that perhaps she might not have."
Guided by these dicta, including the need for caution in cases of this nature but recognising that any generalisations about people's reactions must give way to the fact-finder's own assessment of the individual plaintiff, I am far from persuaded on the balance of probabilities that were the defendant (contrary to my view) negligent in failing to advise the plaintiff of the precise failure rate of the Hulka Clip method experienced by him to that point, and to pass on the substance of the views expressed by Mr Korda and Professor McLennan concerning vasectomy which I have set out above, the plaintiff would have adopted any different course. I have come to the same conclusion should it have been negligent of the defendant not to discuss other specific methods of sterilization such as fimbriectomy, electrocoagulation or other forms of laparotomy or laparoscopy. I think it highly unlikely that she would have put off to a future occasion some other procedure, especially invasive surgery, when a potentially reversible but equally, if not more effective, method of tubal ligation was offered to her during a laparoscopy she was due to undergo the next day in any event. I think it highly unlikely in those circumstances that she or her husband would have contemplated his undergoing a vasectomy in lieu of or in addition to her undergoing this form of tubal ligation and I have formed the same view of the unlikelihood of their adopting barrier methods in the event of her undergoing the clip method of sterilization. Such additional precautions would not have been recommended as sound medical practice in the view of Professor McLennan and I accept his view.
The complaint that the operation itself was carried out upon the plaintiff by the defendant negligently was supported by only one particular, namely a failure to use a method of tubal ligation that was more reliable than the application of Hulka Clips. This was pleaded to support the allegation in tort and also in contract. But for the reasons which I have already detailed, I am satisfied that the application of Hulka Clips was a perfectly reliable method to have employed and that it was not negligent for the defendant to have used this method. The operation itself was carried out competently by the defendant and the recanalising of the tube was unrelated to the way in which he had applied the clips. In my view, the plaintiff has failed to establish a cause of action in tort or contract in respect of the advice (or lack of it) given on 30 May 1985 or the conduct of the surgical procedure carried out by him the following day.
I turn now to the third matter of complaint, namely the alleged negligence of the defendant in suturing the plaintiff's ureter in the course of the Caesarean delivery of the plaintiff's youngest child. On 2 March 1987 at 38 weeks of pregnancy, the plaintiff was admitted to hospital for the birth of the child. The defendant recommended this course, as there were some signs of toxaemia, some blood pressure and some abnormality in the plaintiff's urine. He induced labour at 7.45am and within an hour or so the plaintiff was in full labour and made good progress until the second stage of labour or full dilatation was achieved. Although she was pushing well, the baby's head had not passed through the brim of the pelvis because it was deflexed or bent in such a way that the wider diameters of the head were presenting. In the circumstances, the defendant decided to perform a Caesarean section. A transverse incision was made in the tissue between the uterus and the bladder and thereafter a further transverse incision made in the lower uterine segment of sufficient width to enable the baby's head to be delivered. The width of the incision is dependent upon the size of the child and in this case the child was 8 lbs 12 ozs. The baby's head, not having entered the lower birth canal, the child was totally within the abdomen so that all the tissues were being splayed laterally to the side. The defendant delivered the baby's head and body, cut the cord and passed the child to the nurse, thereafter delivering the placenta. He then used four clamps to put on the edges of the incision he had made in the lower uterine segment. He said in evidence that he noted that there was more blood than he would normally have expected. It is common ground that at pregnancy and birth, the uterus is significantly more vascular than otherwise, indeed up to 30 times more so, according to some experts. After clamping the incision, he sutured the uterus and then, by prior arrangement with the plaintiff, proceeded to a bilateral salpingectomy. The latter procedure does not involve the loss of blood and is in no way relevant to the occurrence of the misfortune suffered by the plaintiff in respect of her ureter.
Closing the incision requires speed so as to prevent further bleeding, and cat gut sutures, which dissolve over time, are used for this purpose. The presence of more blood than usual restricts the surgeon's vision and a sucker to draw out the blood and the insertion and removal of packs were used. At every Caesarean section, the surgeon is working in close proximity to the ureters and on this occasion, without being aware of it, the defendant inserted a suture in or around one of the ureters thereby occluding it and prevent the passage of urine from kidney to bladder. The following day, the plaintiff's abdomen was distended and she was suffering discomfort which progressed to intense pain. A number of x-ray procedures were performed and a diagnosis made, as a result of which, on 4 March 1987, Mr Holmes, a urologist, with the defendant in attendance, performed remedial surgery to cut the offending suture and insert a stent into the ureter down into the bladder to ensure proper drainage. No complaint is made of the defendant's conduct in diagnosing and treating the ureter damaged by the suture with remedial surgery. In describing that surgery as remedial, I in no way intend to minimise the pain and other consequences the unfortunate plaintiff suffered, but in view of the findings I make in respect of the defendant's alleged negligence in inserting the suture, detailed discussion of them is unnecessary.
The plaintiff called two expert witnesses to support her claim that the defendant was negligent. The first, Dr Reid, in a report which was tendered in evidence, was asked the following question:
"Given that during the Caesarean procedure a suture was inserted in our client's right ureter that was not detected, do you have any comments to make as to the level of professionalism displayed by the medical practitioner in question? That is, is this a common mistake made in such a procedure or is it one that simply should not have occurred and in some way should have been prevented and if so, in what way should it have been prevented?"
His response was:
"Ureteric injury at uncomplicated Caesarean section is an unusual event. This Caesarean section was uncomplicated intraoperatively, but risk factors for this injury to occur were present. The most likely time for such injury to occur is in obstructed labor at full dilatation, where it is not always easy to identify where the lower uterine segment finishes and the upper anterior vaginal wall starts. If the uterine incision is placed too low, then the ureter is at risk of kinking or ligation during closure, following delivery of the baby.
There is nothing in the notes to indicate that any further risk factors were present, such as a lateral or inferior extension of the uterine incision. Furthermore there is nothing to indicate that excessive bleeding or difficulty in identifying tissue layers contributed to this problem. Therefore I would have to presume that the incision in the uterus was placed inadvertently low, leading to this accidental ureteric injury. It is my opinion that an experienced obstetrician should have recognised this risk factor and taken steps to avoid injury to this structure.
Post operatively the diagnosis of ureteric injury was made in an expeditious fashion. Appropriate investigations were ordered, the diagnosis confirmed and assistance from an appropriately qualified specialist sought. During reoperation the injury was confirmed and appropriate action taken to correct the injury."
In his evidence-in-chief, he said that ureteric injury was certainly a recognised risk during a Caesarean section and that the risk could be avoided by identifying the location of the ureters. This, he said, could be done by palpation. Before I deal with his cross-examination, I make the following observations. Dr Reid assumed the third possibility that the damage had been done by reason of the incision being placed inadvertently low because he excluded the other two possibilities, namely lateral or inferior extension of the uterine incision (tearing) and excessive bleeding. As to the latter, he assumed that there was no excessive bleeding because the hospital records show a blood loss of 500 mls, compared with what he regarded as normal, namely 800 mls. It is clear that the recorded loss is an estimate made by the nurse and not by the defendant. It is, furthermore, difficult to make any accurate assessment of actual blood loss for it is not a matter of measuring blood collected in liquid form in one or more receptacles, but of making allowance in addition for the blood absorbed by swabs and surgical gowns and for other spillages. Professor McLennan pointed out that the nurse's notes of the operation record what he called a high swab count. Normally, he said, one uses 10 or 20 Ratex swabs and 10 smaller sponges in a Caesarean section, but the nurse noted the use on this occasion of 35 Ratex swabs and 20 sponges. The salpingectomy being "a very small bloodless procedure" did not account for the use of almost double the number of swabs and sponges. In addition, he noted that two Zimmer drains had been inserted. Such a drain, he said, "can either be put in because there has been bleeding or it's prophylacticly been put in because they suspect more bleeding is likely to happen. It is unusual to put drains in an operation that has not been bloody." Furthermore, what is significant in Professor McLennan's view (and I see the logic of it) is not the volume of blood alone, but rather the suddenness of bleeding. In a proof of evidence exchanged prior to trial, the defendant had described the delivery of the plaintiff's child by Caesarean section as "an especially bloody affair, as such deliveries often are". This expression was adverted to frequently during the trial, but seems to have been interpreted by the plaintiff and her advisers as a claim by the defendant, contradicted by the recording of a 500 ml loss in the hospital records, that there had been much more than the usual blood loss, whereas the focus given it by the defence was that the site, being highly vascular, the surgeon was faced with the task of repairing the incision without delay after the delivery of the baby and placenta and coping with an especially large amount of blood at that time. In any event, the hospital records, other than the nurse's estimate of 500 mls, seem to bear out the fact that there was a greater than usual amount of blood loss as claimed by the defendant.
In cross-examination, Dr Reid agreed that the best indication of whether there was a lot of blood in the area being operated on must come from the surgeon, and that the presence of a lot of blood makes the task of stitching up more difficult and also more urgent. He also agreed that the ureter does not always follow the same course in each woman and that in a normal Caesarean section, the surgeon does not know where the ureter is. His final position was set out in this exchange:
"You disagree with the proposition that if bleeding is encountered during the Caesarean section the course of the ureter can sometimes be difficult to identify and trace? … No, I still believe that the appropriate place to uterine incision is not next to the ureter it is a significant distance away. Furthermore, if there were difficulties because of excessive bleeding then once the uterus had been closed it would be appropriate to identify at that point where the ureter coursed to ensure that it hadn't been damaged during the procedure.
And that would entail performing a second operation, wouldn't it? … No. No, I'm talking about closing the uterus, having the bleeding under control and then either dissecting or palpating the ureter to ensure that it was free.
Well palpating means touching, doesn't it? … Yes.
But dissecting involves a further operation, doesn't it? … It involves further surgery at the time as part of the operation being performed.
Yes, and it means that you cut through the peritoneum? … The posterior peritoneum, yes.
And that creates further risks, doesn't it? … My point is, that if there have been a number of difficulties encountered during the Caesarean, where you believe there may have been ureteric injury, then certainly, it's checking the ureter that it is not involved, or not damaged by the procedure, certainly involves far less risk than ignoring the possibility of ureteric damage.
But that presupposes that you suspect that there's a problem - doesn't it? … Only in the events of the incision being low or the incision extending into the area of the ureter.
So if you don't believe that the incision is low, then your evidence is, that you would have no reason to suspect damage to the ureter? … Correct."
Asked the same question as Dr Reid had been concerning the level of professionalism of the defendant given the undetected insertion of a suture in the ureter, Mr Korda's response, in his report which was tendered in evidence, was:
"The operation note of 2 March 1998, is remarkably scanty, so it is not possible to formulate an opinion regarding the difficulties encountered at the time of this operation. It is not common practice to leave drains in the utero‑vesical pouch or the rectus sheath following a Caesarean section. It appears that these drains were inserted at the time of the operative procedure, indicating that bleeding was encountered during the Caesarean section. The greatest risk to the ureters occurs from lateral extension of a lower segment transverse uterine incision when increased bleeding occurs. Ureteric injury at the time of lower segment Caesarean section is remarkably rare. It can occur during the control of bleeding when clamps are placed lateral to the cervix or at the angle near the ureter as it crosses under the uterine artery. If bleeding is encountered during the Caesarean section, the course of the ureter can sometimes be difficult to identify and trace. If, however, bleeding is encountered and multiple sutures are used to control the bleeding, it is good practice to dissect out the ureter to ensure that it has not been crushed or ligated after bleeding has been controlled. On the balance of probabilities, ligating the ureter during Caesarean section is below an appropriate standard of care. It should be prevented by knowing exactly where the ureter is at the time of the Caesarean section. If this cannot be done, and ureteric damage is suspected, the ureter ought to be dissected after the bleeding has been controlled to ensure that its integrity is intact."
In his view then, the defendant was negligent, not in being unable to identify where the ureters were at the time of incision and suturing, but in failing to dissect them out, after the bleeding had been controlled by the insertion of sutures, to ensure that they had not been crushed or ligated. This, however was conditional upon the defendant having some reason to suspect that such damage had been done.
Mr Korda agreed in cross-examination that the inadvertent insertion of a suture in a ureter is a known complication of all pelvic surgery and one which can occur in the best of hands. He, himself, had done so in the course of a pelvic operation other than a Caesarean section, notwithstanding the precautions he had taken. He agreed that the amount of blood in Caesarean sections can make it difficult to accurately identify where the ureter is. Ureters can vary in distance from the uterine cervix from .1 centimetre to 5.3 centimetres, and in 12 per cent of women, studies have found the distance was less than half a centimetre. He agreed that stopping the flow of blood once the baby is delivered is the surgeon's primary task and that the dissecting out of the ureters should not precede the control of bleeding and should only be undertaken if the surgeon thought there was "a pretty good chance" he had damaged the ureters as it involved another operation from which there was a risk of later adhesions and of damage to nerves and blood vessels behind the peritoneum. He disagreed with Dr Reid's assertion that the ureters can be detected by palpation, saying that one could not identify the ureter in a pregnant woman by feeling.
The defendant denied making the insertion unusually low. It was made in the normal place where he made all his Caesarean incisions. He did not think at any time in the operation that he had approached the ureters with any instrument and at no time suspected that he may have damaged one of them. At the time he believed all his suturing was within the confines of the uterus and that he did not transgress outside it. He also denied that the incision he made had extended further than anticipated so that it extended to the edges of the uterus.
In cross-examination, the defendant frankly acknowledged a number of propositions which might superficially suggest breach of a duty of care. I instance the following:
"You have said in an answer to an interrogatory that is in evidence that what occurred was a mistake made by you ¾ is that correct? … Yes.
Yes. It was not a deliberate act on your part ¾ was it? … No.
It was unintentional ¾ wasn't it? … It was.
And you agree, that you should not have put the suture in the ureter ¾ don't you? … It is something that can happen.
No, you agree that it should not have happened ¾ don't you? … Yes.
Thank you. And would you agree, that if perhaps you had been more careful in carrying out the operative procedure, that it would not have happened? … Yes.
Yes. So therefore it was a lack of care on your part that resulted in the suture going into the ureter ¾ wasn't it? … No.
If you'd been more careful it would not have happened, that's correct, isn't it? … I used all reasonable ¾
No, if you had been more careful it would not have happened, would it? You just accepted that a moment ago? … Yes.
…
I think you have accepted that with that particular blood loss perhaps more care should be taken because of the amount of blood that is in the cavity? … The usual care should be taken.
Yes, but even more care should be taken when there is an excessive blood loss? … One always takes care.
No, you agree that when there is more blood than usual, such as you have described in this instance, that even more care should be taken because of the possibility that your vision will be obscured? … I accept that.
…In general terms it was simply an uncomplicated procedure wherein you made an error, that's right isn't it? … Yes.
And one of the reasons why perhaps the suture was put in to the ureter was that you failed to identify precisely where the ureter was. That can be the only explanation can't it? … At surgery ¾
No, would you answer my question. The only reason why the suture was placed in the ureter was because you failed to identify where it was, that's correct isn't it? … I knew where it was.
You failed to identify where it was, Mr Humphrey, didn't you? … Yes.
Thank you. And if you knew where it was, then the suture shouldn't have been there ¾ should it? … I will rephrase that ¾ I knew where it usually was.
Where it usually was. So we come back to the proposition, it simply comes down to this, you failed to identify where it was in respect to Mrs Burke ¾ correct? … Yes.
Thank you. And you would accept that it was your responsibility to identify where the ureter was? … One does not normally identify where the ureter is at standard Caesarean section.
But you should have known where it was ¾ shouldn't you? … I knew where it usually was.
That's the issue here, isn't it, you didn't identify it was on this occasion ¾ did you? … No.
HIS HONOUR: How could you have done so?
WITNESS: It has already been described by the other expert witnesses, of opening the peritoneum, and dissecting the ureter down. Which is only done when you suspect there is a problem with the ureter."
Nevertheless, I regard many of these propositions as self-evident and not indicative of a lack of care and skill in the difficult circumstances encountered by the defendant in the course of surgery. The acknowledgement that the insertion of the suture was a mistake made by the defendant is not an admission that the error was caused by negligence. The damage to the ureter occurred because the suture was placed in a position which the defendant mistakenly believed would not involve contact with a ureter. The acknowledgment that it would not have happened had he used more care was qualified by the proposition that he used all reasonable care and he was conceding only the possibility that some degree of care higher than was reasonable in the circumstances could have prevented the injury from occurring. His acceptance of the proposition that the presence of excessive blood in the cavity required more care did not amount to an acknowledgment that he had failed to take that degree of care and the failure to identify the precise position of the ureter was qualified by the medical imperative that identification by way of dissection out should only be undertaken if there is good reason to believe damage to the ureter has in fact occurred.
On the whole, I regard the evidence of the plaintiff's experts in respect of this issue as unconvincing. Dr Reid's basic premise that the incision was made too low is not supported by any independent evidence, but is an assumption based on the rejection of the other two possibilities of excessive bleeding and an extension of the incision. I do not consider that the former can be rejected and the latter, though its occurrence is denied by the defendant, is a possibility recognised by the two experts called by him and one which, if it did occur without his being conscious of it because of the presence of blood, has not been shown to have been occasioned by any fault on his part, nor has it been shown that his response to it was negligent. Mr Korda's contention of negligence in failing to dissect out the ureters is dependent upon there having been good reason to suspect that damage to the ureters, or one of them, had in fact been caused when there is no evidence of any reason to suspect that this complication had occurred. However, having regard to the evidence of Dr Grice and Professor McLennan, I am positively satisfied that the defendant cannot be blamed for the insertion of the suture in the plaintiff's ureter and that his omission to dissect out the ureters was in accordance with sound medical practice in the circumstances.
Dr Alan Grice, a specialist obstetrician and gynaecologist of many years' standing and one who had been an examiner and Member of the Board of Examiners at the Royal Australian College of Obstetrics and Gynaecology between 1992 and 1998 in addition to other College appointments, stressed the importance and urgency of controlling bleeding after a Caesarean section and the importance of suturing around any bleeding area rather than through it. It was his view that because of the position of the baby's head, the incision, in the course of the baby's delivery, may have extended without the surgeon noticing, thereby bringing the incision to be sutured closer to the ureters. This could occur, he said, without any fault on the part of a surgeon. Commenting on Mr Korda's contention that the ureters ought to have been dissected out, Dr Grice said he would prefer not to have to dissect out the ureter at Caesarean section unless it was absolutely necessary. He would only do so if he thought that he had been obliged to insert a stitch so close that he might have perforated the ureter and "it would have to be a long way down for me to think that". Although the dissecting out procedure was not invasive, there was a risk to other organs during such a procedure. He said:
"The other huge problem is the massive blood vessels, arteries and veins, and both are very dangerous if they rupture, especially a vein because you just cannot stop the bleeding, you can't easily sew it, which are just below the ureter even further down. So you are entering very dangerous country."
Professor McLennan, the Professor of Obstetrics and Gynaecology at the University of Adelaide, confirmed that ureters during Caesarean section at full dilatation could not be detected by feeling. As to dissecting out the ureters, he had this to say:
"No obstetrician I know, virtually, ever does that. And the only time I've done that in thirty two years of thousands of Caesarean sections, was when the bleeding was uncontrollable, and I had to dissect where we were, so I could do, what's called 'a Caesarean hysterectomy'. The only way I could control the bleeding was to actually remove the uterus. And the reason one doesn't go digging in amongst this nest of worms is the blood vessels are literally thirty times bigger around the ureter. You actually have more chance of creating bleeding by trying to dissect it out. And I know Dr Korda does that quite often in cancer surgery, or ureteric - gynaecological urology surgery, when we are talking about a non pregnant patient, with a thirty times smaller uterus and blood vessels. And that's not easy, but it's quite common place to do that. But, in my thirty two years, I have not seen other obstetricians going into this nest of worms trying to ¾ because you ¾ if you've got more bleeding, you would be bleeding from a site that would be very hard to control. And then you are talking about internal iliac ligation or aorta ligation. You are talking massive haemorrhage. So most of us would be ¾ that would be where angels would fear to tread."
Even if a ureter is damaged by a cat gut suture, it does not necessarily create complications because the suture dissolves within seven to ten days and provided the ureter is not wholly occluded, it will continue to drain. He said:
"It's only a problem if you've gone right around the circumference of the ureter, and tied it tight, and tied it off, then you will recognise that a few days later. I mean, if you had a choice of a woman bleeding to death, or hitting the ureter, you would be better to make sure you got haemostasis ¾ that's stopping of the bleeding ¾ and risk the need to go back a few days later when the blood vessels contract and become much smaller, with a trained urologist … ."
I accept the opinion evidence of Dr Grice and Professor McLennan. The mishap was a known but rare complication of this form of surgery. It was important to staunch the bleeding by the insertion of sutures in an incision in circumstances of poor visibility due to the presence of blood. The defendant did not depart from the standard of professional care demanded of him in inserting the sutures as he did and there were powerful reasons why, in the circumstances as he knew them, he should not have embarked upon the further operative procedure of dissecting out the ureters with its attendant risks. In my view, the plaintiff has failed to establish any case against the defendant and there must be judgment in his favour.
0
5
0