Combe v Katsaros

[2011] SADC 93

DISTRICT COURT OF SOUTH AUSTRALIA

(Civil)

COMBE v KATSAROS

[2011] SADC 93

Judgment of His Honour Judge Millsteed

30 June 2011

TORTS - NEGLIGENCE

Action in negligence - plaintiff suffered flexion contractures of little fingers due to Dupuytren's disease - for purpose of releasing contractures defendant performed separate operations on left and right hands - following operations plaintiff developed pain in his hands and flexion contractures of his ring and little fingers - little fingers later amputated by another surgeon - post operative contractures alleged to have been caused by Complex Regional Pain Syndrome (CPRS) - whether defendant negligent by reason of his failure to warn of the risks of CPRS - whether defendant was negligent in failing to warn the plaintiff of the risk of rapid contractures - whether defendant was negligent in failing to space the two operations further apart and in failing to advise the plaintiff to space the operations further apart - action dismissed.

Rogers v Whitaker (1992) 175 CLR 479; Sidaway v Governors of Bethlem Royal Hospital [1985] AC 871; F v R (1983) 33 SASR 189; Rosenberg v Percival (2001) 205 CLR 434; Naxakis v Western General Hospital (1999) 197 CLR 269; March v Stramare (E&MH) Pty Ltd 171 CLR 506; Chappel v Hart (1998) 195 CLR 232; Zaltron v Raptis [2001] SASC 209; Gover v State of South Australia (1985) 39 SASR 543; PQ v Australian Red Cross Society [1992] 1 VR 19; Anderson v The Queen (1992) 60 SASR 90; Thornley v Tilley (1925) 36 CLR 211; Maronis Holdings Ltd v Nippon Credit Australia (2001) 38 ACSR 404; ASIC v Adler (no1) (2002) 20 ACLC 222; Yildiz v The Queen 11 A CRIM R 115; R v Abadom [1983] 1 WLR 126; Clambake Pty Ltd v Tipperary Projects Pty Ltd (No2) (2007) 35 WAR 394; Borowski v Quayle [1966] VR 382; English Exporters (London) Ltd v Eldonwall Ltd [1973] CH 415; Fazio v The Queen (1997) 69 SASR 54; R v Deputy Industrial Injuries Commissioner, ex parte Moore [1965] 1 QB 456 ; Kite v Malycha (1998) 71 SASR 321, applied.

COMBE v KATSAROS
[2011] SADC 93

CIVIL:     Judge Millsteed

INTRODUCTION

1. The plaintiff, Norman Combe, has brought an action in medical negligence against the defendant, Dr James Katsaros, a plastic surgeon.

2. The plaintiff suffered flexion contractures of both of his little fingers as a result of Dupuytren’s disease. For the purpose of releasing the contractures, Dr Katsaros performed surgery on the plaintiff’s left hand on 4 July 2001 (the first operation) and his right hand on 27 July 2001 (the second operation).  Following the operations the plaintiff developed significant pain in his hands and flexion contractures of his ring fingers and little fingers. The latter were later amputated by another surgeon, Dr R. Wheen.

3. The plaintiff contends, primarily on the basis of opinions expressed by Dr Wheen, that the post operative pain and contractures were caused by Complex Regional Pain Syndrome (CRPS) and that the syndrome was triggered by the surgery performed by Dr Katsaros. The plaintiff does not dispute that the first and second operations were competently carried out but alleges that Dr Katsaros was negligent on the grounds set out below

   PLEADINGS/ISSUES

4. The plaintiff pleaded in paragraph 18 of the Amended Statement of Claim (ASOC)[1] twelve particulars of negligence. However, by the close of evidence the allegations relied upon were reduced to those contained in the following sub-paragraphs:

   (e)Failed to advise the Plaintiff as to the likelihood of the proposed surgery being unsuccessful or only partially successful and failed to advise the potential occurrence of chronic regional pain syndrome and of the possibility of persistent or recurrent Dupuytren’s contracture.

   (f)Failed to advise the Plaintiff of the need to sequence and failed to sequence the proposed surgery such that he would be able to recover from the surgery to one hand before undergoing surgery to the other hand.

   [1]    FDN 11

5. The plaintiff pleaded that as a result of the defendant’s negligence he suffered “residual curling of the fingers of his hands and developed a Chronic Regional Pain Syndrome”.[2]

   [2]    ASOC para. 20 (c)

6. The defendant in his Amended Defence to Amended Statement of Claim (ADASOC)[3] denied each allegation of negligence and, in relation to para.18 (e) of the ASOC, pleaded that the plaintiff was advised of the possibility of persistent or recurrent Dupuytren’s contractures.  In the plaintiff’s Reply[4] he admitted that he was aware of that possibility. However, at trial Mr Brohier counsel for the plaintiff submitted that while the plaintiff was aware of the possibility of persistent or recurrent contractures he was not aware that he might experience a rapid onset of contractures  (whether caused by CRPS or Dupuytren’s disease).[5]

   [3]    FDN 12

   [4]    FDN 21

   [5]    Plaintiff’s Outline of Submissions para 29.1. Closing address T 937

7. The plaintiff later filed a Further Amended Statement of Claim[6] containing minor amendments which did not alter the allegations of negligence relied upon by the plaintiff.

   [6]    Filed during trial

8. The plaintiff’s allegations of negligence may be summarised as follows:

   ·First that Dr Katsaros erred by failing to warn the plaintiff prior to each operation of the potential occurrence of CRPS and its symptoms including the possibility of digital contractures (“the CRPS warning issue”).  The plaintiff contends that if such a warning had been given he would not have had either operation.

   ·Second, that, if the contractures the plaintiff experienced were due to Dupuytren’s disease, then Dr Katsaros erred by failing to warn the plaintiff that he might experience a rapid onset of recurrent Dupuytren’s contractures (“rapid Dupuytren’s contracture warning issue”).  The plaintiff contends that if such a warning had been given that he would not have had either operation.

   ·Third, that, Dr Katsaros failed to advise the plaintiff that the second operation should be delayed until sufficient time had elapsed to ensure that the left hand had fully recovered from the first operation and to allow for the emergence of potential complications in his left hand after he had recovered from the first operation. (“the sequencing advice issue”). It is the plaintiff’s case that he would have accepted such advice and that due to the complications he later experienced in his left hand he would not have proceeded with the second operation.  In those circumstances he would not have suffered the complications he experience in his right hand.

   ·Fourth, that, Dr Katsaros failed to delay the second operation until after the plaintiff had recovered from the first operation (“the sequencing issue”).

9. The defendant’s case in relation to each allegation of negligence may be summarised as follows:

   ·Dr Katsaros agreed that he did not give a CRPS warning and conceded that following the operations the plaintiff suffered significant pain possibly within the spectrum of CRPS.  However, such a warning was not required because CRPS was not a material risk of surgery.  Furthermore, the plaintiff has failed to prove that the absence of a CRPS warning was causative of the plaintiff’s injury.  On the issue of causation the defendant contends that the plaintiff has failed to establish (a) that the contractures he suffered were due to CRPS and (b) that he would not have had the operations if he had been given a CRPS warning.

   ·Dr Katsaros did not dispute that he failed to give a warning specifically directed to the possibility of the plaintiff suffering a rapid of onset of recurrent Dupuytren contractures. However, there was no need for such a specific warning because the plaintiff was aware of the unpredictability of Dupuytren’s surgery and of possibility of recurrent Dupuytren’s contractures. Furthermore, on the issue of causation the plaintiff has failed to prove that he would not have had the operations if such a warning had been given.

   ·The two operations were scheduled close together to accommodate the plaintiff’s wishes and convenience. By the time of the second operation the plaintiff’s left hand had healed. In the circumstances, there were no sound medical reasons for advising the plaintiff to delay surgery on the right hand. Furthermore, on the issue of causation the plaintiff has failed to prove that he would not have had the second operation if such advice had been given.

   ·For the reasons expressed above there was no sound medical reasons for delaying the second operation.

   WITNESSES

10. The plaintiff gave evidence and called Dr Wheen, upon whose opinions the plaintiff’s case was substantially based. Dr Wheen is an Accredited Visiting Medical Officer Hand Surgeon at Sydney Hospital and St Luke’s Hospital Hand Units, Sydney. He has practiced full time hand surgery since 1992 and has conducted his own private practice, in association with Associate Professor W.B. Connolly, since 1994.[7]

    [7]    Dr Wheen’s curriculum vitae Ex P87 p38

11. The plaintiff also called Dr Helen Tingay, a psychiatrist, and Madeleine Frost, Marilyn Bernard, Karen Harris and Glenda Grice, former work colleagues, who testified as to the condition of the plaintiff’s hands before the operations performed by Dr Katsaros. In addition, the plaintiff tendered numerous documentary exhibits including various medical notes, hospital records and reports relating to the plaintiff.

12. Dr Katsaros gave evidence. He is currently the Director of the Department of Plastic and Reconstructive Surgery, Royal Adelaide Hospital and holds several other positions including Clinical Senior Lecturer in the Department of Surgery, University of Adelaide. He conducts his on private practice from rooms in North Adelaide and has been a specialist plastic surgeon since 1978.[8]

    [8]    Dr Katsaros’s curriculum vitae Ex D111

13. Dr Katsaros called Dr Phillip Allen, Associate Professor of Pathology, Department of Anatomical Pathology, Flinders Medical Centre; Dr Penny Briscoe, Deputy Director of Pain Management Unit, Royal Adelaide Hospital; and Dr Robert Morgan, plastic and reconstructive surgeon. Those witnesses gave evidence disputing the correctness of key opinions expressed by Dr Wheen. The defendant also called the following plastic surgeons: Dr Julie Lawrence, Dr Randal Sach and Dr Michelle Lodge, all of whom testified as to their clinical experience with CRPS. Dr Robert Goldney, a psychiatrist was also called. The defendant’s case was supplemented by various documentary exhibits including medical reports prepared by Drs Allen, Briscoe and Morgan.

    CREDIBILITY

14. The professional standing and competence of the various medical witnesses called by the plaintiff and the defendant were not in dispute. There were differences of opinion expressed by Dr Wheen, on the one hand, and by the medical witnesses called by Dr Katsaros, on the other. However, I am satisfied that all of the medical witnesses called by the plaintiff and the defendant gave their evidence honestly and with the intention of assisting the Court.

15. The defendant was an impressive witness. He has extensive surgical experience and high professional qualifications. Not surprisingly he was intelligent and articulate. Of course, he is being sued for negligence and his professional judgment and conduct have come under attack.  So it was necessary to bear in mind that he has an obvious interest in justifying things he did and did not do. Nevertheless, I considered him to be a truthful and credible witness.

16. The plaintiff’s circumstances excite sympathy. On any view of the matter he has suffered considerably following the operations performed by Dr Katsaros. I think that he probably harbours a degree of resentment for Dr Katsaros because he honestly believes that Dr Katsaros caused or contributed to the difficulties that he has experienced. Indeed, it emerged in the course of Dr Tingay’s evidence that the plaintiff had complained to her that he had been “butchered” by Dr Katsaros.[9] This has caused me to asses the plaintiff’s evidence with some care.

    [9]    T 369

17. There were several aspects of the plaintiff’s evidence concerning the sequence and detail of events which conflicted with Dr Katasros’s testimony. On those issues I have preferred the evidence of Dr Katsaros primarily because he had the assistance of his contemporaneous notes whilst in the witness box. In the main, I do not believe that Mr Combe was deliberately untruthful in relation to those matters. Rather I attribute his inaccuracies to faulty memory due to the effluxion of time.

18. A possible exception to that finding is the evidence that Mr Combe gave concerning the events of 8 August 2001. I suspect that the allegations he made against Dr Katsaros in relation to that incident may have been coloured, at least in part, by feelings of antagonism towards Dr Katsaros. I also believe that such feelings and the corruption of hindsight may have caused him, to understate the severity of the digital contractures that he had before the operations performed by Dr Katsaros and to overstate the severity and duration of the pain he experienced after those operations. 

    THE EVIDENCE

19. It is convenient to begin by saying something about Dupuytren’s disease and CRPS.

    Complex Regional Pain Syndrome

20. CRPS is a descriptive term that encompasses an array of painful conditions that can be triggered by injury or surgery to the extremities and limbs.[10] It is common ground that the pathophysiology of the syndrome is not well understood. Indeed, there is an absence of defined pathophysiology.[11] There are no pathognomic, physiological or metabolic markers to determine the presence of the syndrome in a patient.[12] The syndrome is diagnosed clinically and not in the laboratory.[13]

    [10]   Dr Briscoe's report Ex D102 attachment no 8 - Wilson P: Complex Regional Pain Syndrome: 2008: Actute Pain Syndromes

    [11]   Dr Briscoe's report Ex D102 p6 (attachment ? - Harden R et al: Proposed new diagnostic criteria for CRPS: Pain Medicine: 2007: 8:4 326 - 330

    [12]   Dr Briscoe's Report Ex D102 p6 attachment ? - Harden R et al: Proposed new diagnostic criteria for CRPS: Pain Medicine: 2007: 8: 4 326 - 330; Korman: CRPS: Greens Operative Hand Surgery (fifth addition): 2017 - attachment 13 Dr Briscoe's report Ex D102

    [13]   Dr Briscoe's report Ex D102 p6, Dr Wheen T520

21. In the past CRPS was diagnosed using a variety of nonstandardized and idiosynchratic diagnostic systems based on the clinical experience of individual practitioners[14] and was known by many names including reflex sympathetic dystrophy (RSD), causalgia, Sudeck’s atrophy and algodystrophy. The name was ultimately changed to CRPS following a consensus workshop of experts held in 1994 in Orlando, Florida, USA. From the workshop, the International Association for the Study of Pain (ISAP) accepted, and published, the following definition and diagnostic criteria for CRPS:[15]

    Definition

    CRPS…is a syndrome that usually develops after an initiating noxious event, is not limited to the distribution of a single peripheral nerve, and is apparently disproportionate to the inciting event. It is associated at some point with evidence of edema, changes in skin blood flow, abnormal sudomotor activity in the region of the pain, or allodynia or hyperalgesia.

    Diagnostic Criteria

    1.     The presence of an initiating event, or a cause of immobilization.

    2.Continuing pain, allodynia, or hyperalgesia with which the pain is disproportionate to any known inciting event.

    3.Evidence at some time of edema, changes in skin blood flow, or abnormal sudomotor activity in the region of pain.

    4.This diagnosis is excluded by the existence of other conditions that would otherwise account for the degree of pain and dysfunction.

    [14]   Dr Briscoe's report Ex D102 - attachment 7 Harden N et al Proposed New Diagnostic Criteria for Complex Regional Pain Syndrome: Pain Medicine 207;8:4:327

    [15]   Dr Briscoe's report Ex D102 p5 attachment 5 Merskey H; Bogduk N: Classification of  Chronic Pain, 2nd ed, ISAP Press 1994 at 42

22. In the present case Dr Wheen testified that it was his practice to diagnose CRPS in accordance with the ISAP criteria set out above.[16] Dr Briscoe’s evidence disclosed that the ISAP criteria has been criticised for being too liberal and resulting in over diagnosis.[17] It has been suggested that the diagnosis has been correct in only 40 per cent of cases.[18]

    [16]   T 470-472

    [17]   Report of Dr Briscoe Ex D102 p5 

    [18]   Report of Dr Briscoe Ex D102 attachment 7 - Harden N et al Proposed New Diagnostic Criteria for Complex Regional Pain Syndrome: Pain Medicine 207;8:4:at 327

23. In 2003 a consensus workshop was held in Budapest, Hungary, to approve and codify what were said to be empirically validated revisions of the ISAP criteria for CRPS. The workshop, which was attended by 35 professionals from seven countries, made recommendations that were submitted to the ISAP’s task force on taxonomy for consideration by the ISAP. The recommendations, which have not been formally accepted by the ISAP, included a new definition of CRPS and modified diagnostic criteria.[19]

    [19]   Report of Dr Briscoe Ex D102 attachment 7 - Harden N et al Proposed New Diagnostic Criteria for Complex Regional Pain Syndrome: Pain Medicine 207;8:4:at 330 Table 3

24. In the present case, the debate about the correctness of the ISAP criteria assumes no significance because, even on the proposed revised criteria, the defendant does not dispute that following the relevant operations the plaintiff experienced significant pain within the spectrum of CRPS.[20] The contentious point is whether the pain caused the plaintiff’s post operative contractures, as Dr Wheen opined, or whether they were caused by Dupuytren’s disease, as the defendant contends. This is an issue to which I will return later.

    [20]   Consolidated Notice to Admit and Response to Notice to Admit Ex P78 [5]

    Dupuytren’s disease

25. Dupuytren’s disease (also known as Dupuytren’s contracture or palmar fibromatosis[21]) is a condition which affects the palmar and digital fascia and results in flexion deformity of the fingers. The fascia extends across the palm of the hand into the fingers and surrounds the joints.[22] The tissue comprises a complex network of collagen and is situated beneath the skin and subcutaneous fat and above the tendons and ligaments of the hand. The disease sometimes affects the fascia in the soles of the feet (plantar fibromatosis).

    [21]   Dr Allen's report Ex D101

    [22]   Dr Wheen T 272-274, 275 Dr Briscoe's report Ex D102  the bones and joints in the hand comprise the following: (i) the metacarpal extends from the wrist to the metacarpophalangeal joint (MP joint). (ii) the proximal phalanx extends from the MP joint to the proximal interphalangeal joint (PIP joint) (iii) the middle phalanx  extends from the PIP joint to the distal interphalangeal joint (DIP joint) and (iv) the distal phalanx extends to the tip of the finger: Dr Wheen T 273 

26. The disease causes changes (proliferation of fibrous tissues) in the normal fascial structures. The changes produce nodules and cords that thicken and contract causing clawing of fingers into the palm of the hand.  The ring finger is the most commonly involved, followed by the small, middle and index fingers. The thumb is least often affected. The disease remains with a sufferer for life and its progression over time is variable.

27. The broad clinical characteristics of the disease were explained by Riolo as follows:[23]

    The pathognomonic sign of Dupuytren’s disease is a nodule in the palm.  It is usually located at the base of the ring or the small finger in the distal palmar crease … The clinical course is usually slow, but in young patients progression may be rapid.  Contracture most often begins in the metacarpophalangeal (MP) joint.  The proximal interphalangeal (PIP) joint becomes involved later, and the distal interphalangeal (DIP) joint is seldom involved. The first symptom is usually the pathognomonic nodule located at the distal palmar crease.  This nodule may be painful or pruritic.  With progression, a palpable cord develops … As significant band formation develops, flexion contracture progresses until the fingertips eventually touch the palm.

    [23]   Riolo J et al, Dupuytren’s Contracture: Current Concepts in Therapy, Southern Medical Journal Vol 84 No 8 1991 at p 986 (attachment No 1 to Book of Medical Reports-Dr P Briscoe Exhibit D 102)

1. The exact cause of Dupuytren’s disease is not known. However, it occurs more frequently in males and people who possess certain lines of ancestry, smoke tobacco, abuse alcohol, suffer diabetes or cardiac and pulmonary diseases.[24]

   [24]   Dr Briscoe’s report Ex D102 at p 2, Riolo J et al, Dupuytren’s Contracture: Current Concepts in Therapy, Southern Medical Journal Vol 84 No 8 1991 at p 986 (attachment No 1 to Ex D102)

2. A severe form of Dupuytren’s disease has been termed Dupuytren’s diathesis. It is found in patients with a strongly positive family history and the onset is usually before the age of 40. There is extensive disease in both hands, with rapid progression and poor prognosis. These patients are likely to have recurrence and complications regardless of the treatment given. The indications for treatment in these patients are the same as for others with a less aggressive form of Dupuytren’s disease.[25]

   [25]   Dr Briscoe’s report Ex D102 at p 2; Riolo J et al, Dupuytren’s Contracture: Current Concepts in Therapy, Southern Medical Journal Vol 84 No 8 1991 at p 986 (attachment No 1 to Ex D102)

3. In the present case there is no dispute that the plaintiff suffers from Dupuytren’s disease and the evidence indicates that he has the diathesis.[26]

   [26]   Dr Wheen T 550-551Dr Katsaros T 593  Dr Allen's report D101 p8   Dr Morgan T 798

4. After Dupuytren’s surgery a patient may experience a flare of pain (“Dupuytren’s flare”).  This is a separate and distinct condition from CRPS.[27] However, it may be difficult to determine from which of the two conditions a patient suffers[28] due to the spectrum of pain associated with CRPS. This spectrum of pain and the difficulty that can occur in differentiating CRPS from Dupuytren’s flare was touched upon by Dr Sach. He said:[29]

   I think there is a spectrum of the condition that we call sympathetic dystrophy (CRPS) which runs from people who get a mild florid pain reaction, some swelling and things can settle down quite quickly-they are sometimes called a dystrophy and treated aggressively at a very early stage, right through to someone who has a florid pain syndrome which is very debilitating and can be a major problem. It is sometimes difficult to know where they fit. Some people talk about the “flare syndrome” particularly in women from Dupuytren’s disease, where they get swelling and redness, and some people say that’s an early dystrophy and it would be classified as such. It is something which is short term, reversible and maybe is not true dystrophy that we talk about…

   [27]   Dr Wheen’s Operative Hand Surgery, fifth edition ( Ex P91 p 627)

   [28]   Dr Briscoe T 822 Dr Katsaros T 591

   [29]   T 759

   Plaintiff’s background

5. The plaintiff was born on 15 February 1952. He was 49 years of age when Dr Katsaros performed the first and second operations in July 2001. Over the years he has been a heavy consumer of alcohol and cigarettes.

6. Between 1974 and 1986 the plaintiff worked at various establishments in the hospitality industry and became skilled in hotel and restaurant management and food and beverage service. In 1987 he embarked upon a career teaching such skills with the Department of Technical and Further Education (TAFE). He taught at the following institutions: Northern Sydney Institute of TAFE, Ryde College (1987-1988), Adelaide College of TAFE (1988-1992), Western Sydney Institute of TAFE, Werrington College (1994-1996), Western Sydney Institute of TAFE, Mount Druitt College (1998).

7. In 1999 the plaintiff transferred to the Blue Mountains College of TAFE, Katoomba, where he was employed as a full-time Hospitality teacher. His duties at the college, at the time of the operations performed by Dr Katsaros, are conveniently summarised in a workplace assessment report:[30]

   [30]   CRS Australia Workplace Assessment Report b y D. Crosbie (Dr Wheen’s notes Ex P20 pp342-343)

   Job Description

   Mr Combe teaches both practical and theoretical aspects of Hospitality to TAFE students.

   This includes instruction regarding Food and Beverage Supervision and Accommodation Services Supervision.

   Duties performed by Mr Combe as a teacher of hospitality include:

   ·Prepares lesson materials for classes.

   ·Teaches theoretical aspects of the hospitality course through the presentation of lesson materials, discussions, and the use of audio-visual aids and other resources.

   ·Demonstrates practical hospitality skills to students eg: preparation of alcoholic drinks, food service, bed making and general housekeeping tasks.

   ·Provides feedback and maintains records of students progress

   ·Attends staff meetings

   Tools and Equipment utilised includes

   ·Administration equipment: computer, printer, photocopier, and telephone.

   ·Theory teaching equipment: overhead projector, whiteboard and video machine.

   ·Practical teaching equipment: coffee machine, ice maker, cutlery, crockery, ice bucket and stand ,glass washer, computers at front desk, cash register, kitchen utensils, vacuum cleaner and other cleaning equipment.

   Mr Combe uses a two shelved aluminium trolley to transports his teaching materials from class to class.…

8. In November 2003 the plaintiff resigned due to the condition of his hands and obtained a disability support pension. At about the time of his resignation the plaintiff left Katoomba and moved to Adelaide to live.

   Prior history of Dupuytren’s disease

9. The plaintiff was first diagnosed with the disease in about 1970 when he was 18 years of age.[31] A plantar nodule was located in his left foot and excised by a surgeon in Melbourne.[32]About 10 years later the plaintiff experienced a recurrence of the nodule in his foot. On this occasion it was surgically removed by a specialist in Sydney.[33]

   [31]   T 107

   [32]   T 107

   [33]   T 108

10. In January 1993 the plaintiff consulted Dr Katsaros in relation to thickening of his left index finger.[34] Dr Katsaros determined that the plaintiff had a nodule over his left index PIP joint and made a provisional diagnosis that the nodule was a giant cell tumour.[35]

    [34]   T 108-110, T 592-593

    [35]   T 593

11. On 22 January 1993 the nodule was excised by Dr Katsaros at the Hindmarsh hospital and sent to Gribbles Pathology (‘Gribbles”) for histological examination.[36] Gribbles reported that the nodule was not a giant cell tumour and was “consistent with fibromatosis, Dupuytren’s contracture”.[37]

    [36]   T 592-593 Dr Katsaros’s clinical notes Ex P9 p8

    [37]   Ex P115

12. After receiving the report from Gribbles, Dr Katsaros discussed with the plaintiff the fact that Dupuytren’s disease was a lifelong condition that could not be cured by surgery and that he was at risk of experiencing recurrent contractures.[38]

    [38]   T 221

13. There is no dispute that the operation performed by Dr Katsaros in 1993 was successful and that the plaintiff made a good recovery.[39]

    [39]   T 111

    Deterioration in plaintiff’s hands

14. The plaintiff testified that in 2000 he began to experience stiffening in each of his little fingers.[40]

    [40]   T 110

15. On 18 December 2000 the plaintiff consulted a friend Dr V. Webster, a general practitioner, who said to him “Look, Normie, just get it done again”[41] and provided a letter of referral for the plaintiff to see Dr Katsaros.[42] 

    [41]   T 111

    [42]   Ex P1

    Consultation: January 2001

16. On 19 January 2001 the plaintiff consulted Dr Katsaros while spending the summer vacation in Adelaide with Ms Frost and her family. Dr Katsaros examined the plaintiff at his rooms at North Adelaide and made contemporaneous notes of his examination and findings.[43] He found that the plaintiff was suffering from Dupuytren’s contractures of the little fingers warranting surgical intervention. The plaintiff also had a cyst on his right thigh which Dr Katsaros agreed to excise.  The cyst has no relevance to these proceedings.

    [43]   Ex P9 (Dr Katsaros’s handwritten notes) Ex P10 (typed copy of handwritten notes)

17. At the consultation it was agreed that the first operation would be performed on the plaintiff’s left hand because it was causing him the most problems. The date for the operation was to be fixed after the plaintiff had determined his work commitments. These arrangements were confirmed by Dr Katsaros in a letter to the plaintiff’s general practitioner Dr Webster, dated 22 January 2001.[44]

    [44]   Ex P8

    Advice and warnings

18. There is no dispute that Dr Katsaros did not warn the plaintiff that he might suffer CRPS as a result of surgery. In Dr Katsaros’s opinion such a warning was not necessary because CRPS was not a significant risk.[45] Whether he was negligent by reason of his failure to administer a CRPS warning is a matter that I will discuss later. Dr Katsaros said, however, that he did warn the plaintiff of the following possible surgical complications: nerve and arterial injury, haemorrhage and infection.[46] This was denied by the plaintiff.[47] I accept Dr Katsaros’s evidence on this discrete topic. His contemporaneous notes support his account that such advice was given.

    [45]   T 599

    [46]   T 597

    [47]   T 114

19. As Hope JA observed in Albrighton v Royal Prince Albert Hospital [48]

    …any significant organisation in our society must depend for its efficient carrying on upon proper records made by persons who have no interests other than to report as accurately as possible matters relating to the business with which they are concerned.  In the every-day carrying on of the activities of the business, people would look to, and depend upon, those records, and use them on the basis that they are most probably accurate.  This position applies to hospitals, as to any other form of business; indeed, hospital records provide an excellent example of the basis, and of the usefulness, of Pt IIc.  If a busy honorary such as the second respondent wished to remind himself of what the appellant’s precise problem or medical condition was, or to learn what had happened since he last saw her, he would undoubtedly refer to the records, and would act upon the basis that they were correct.  If, for some reason, a new honorary had to take over the case, it is to the records that he would go to find out what had happened or what he had to do.  No doubt mistakes may occur in the making of records, but I would think they occur no more, and probably less often, than in the recollection of persons trying to describe what happened at some time in the past.  When what is recorded is the activity of a business in relation to a particular person amongst thousands of persons, the records are likely to be a far more reliable source of truth and memory. They are often the only source of truth.

    [48] (1980) 2 NSWLR 542 at 548

20. There is a minor conflict between the plaintiff and Dr Katsaros about the nature and extent of other discussions that occurred during the consultation.

21. The plaintiff initially said, in examination in chief, that he was not told anything about the projected outcome of the operation other than perhaps that it would “relieve the stiffening”[49] but then agreed that Dr Katsaros probably informed him that the results of the proposed surgery were unpredictable,[50] that Dupuytren’s disease was incurable and there was a risk of recurrent contractures despite surgery.[51]

    [49]   T 114

    [50]   T 221

    [51]   T 115

22. Dr Katsaros could not recall the specific discussions that he had with the plaintiff on the likely success of the proposed operation but said:[52]

    …my usual practice is not to guarantee to the patient that full extension will be gained and I emphasise that the degree of extension gained is unpredictable and depends on a number of factors beyond the control of the surgeon and the patient themselves, including the degree of joint contracture, the established contracture of ligaments and flexor sheets.

    [52]   T 613

23. I accept that Dr Katsaros would have given that advice to the plaintiff in accordance with his usual practice.

24. Dr Katsaros’s evidence was silent on whether, in the course of the consultation, he informed the plaintiff of the risk of recurrent contractures. The plaintiff, however, acknowledged that he was already aware of the risk because it had been explained to him by Dr Katsaros in 1993.[53] However, he said that he was unaware that a patient could suffer a recurrence of contractures as rapidly as he did following the operations performed by Dr Katsaros in 2001.[54] Dr Katsaros did not dispute this. I accept that the plaintiff was not specifically advised of the risk of a rapid recurrence of contractures.

    [53]   T 115, 218, 221.  See also Dr Katsaros’s evidence T 597

    [54]   T 116-117

    Sequencing of operations

25. It is common ground that during the consultation the plaintiff enquired if he could have the operations on his hands scheduled close together.

26. The plaintiff said that he asked Dr Katsaros if both operations could be performed during the mid year semester break to limit the amount of time he took off work. He informed Dr Katsaros that if that was not possible he would have the second operation when he returned to Adelaide for the Christmas break.[55] However, Dr Katsaros indicated that he could perform both operations within a period of 2-3 weeks.[56]

    [55]   T 113

    [56]   T 113

27. Dr Katsaros did not dispute that he told the plaintiff that the operations could be performed so close together but said that he explained to the plaintiff that the timing of the second operation was dependent upon whether or not there were post-operative complications or delayed healing following the first operation.[57]I accept Dr Katsaros’s evidence.

    [57]   T 596-597

28. The question of whether Dr Katsaros was negligent on the sequencing issue is something that I will return to later.

    Severity of plaintiff’s condition

29. There is no dispute as to the correctness of Dr Katsaros’s diagnosis that the contractures of the plaintiff’s little fingers were due to Dupuytren’s disease. There is, however, a conflict in the evidence as to the severity of the plaintiff’s condition at the time of the consultation and during the months leading up to the first operation on 4 July 2001.

    Dr Katsaros’s evidence

30. Dr Katsaros testified that at the time of the consultation the plaintiff was suffering from “severe Dupuytren’s”. He recalled,[58] and his contemporaneous notes state,[59] that the plaintiff had “severe deterioration” in both hands. He further recorded that the plaintiff had a thick nodule on the palmar aspect of his left little finger, an 80 degree contracture of the left little finger and, without noting its precise extent, a severe contracture of the right little finger. For the purpose of explaining his evidence, Dr Katsaros drew a sketch of the plaintiff’s left hand illustrating the severity of the contracture of the left little finger.[60]

    [58]   T 596-598

    [59]   Ex P9 (Dr Katsaros’s handwritten notes) Ex P10 (typed copy of handwritten notes)

    [60]   Ex P99

    Plaintiff’s evidence

31. As earlier noted the plaintiff testified that he began to experience stiffening in each of his little fingers in 2000. In examination-in-chief, he said that by 19 January 2001 his little fingers had “stiffened” and “hardened” but had not “curled over or contracted”.[61]  He said the stiffening was annoying but not painful and did not impact on his work apart from reducing his speed on the computer keyboard.[62] He emphasised that during the period preceding the first operation (the first TAFE semester) 90 per cent of his teaching duties involved “hands on work” and that he was able to drive his manual car and carry out household chores. He also enjoyed an active social life including cooking dinner for friends and regularly went swimming.[63]  He described his mental state as “fairly good”.[64]

    [61]   T 112

    [62]   T 111

    [63]   T 120-122

    [64]   T 123

32. In cross-examination, the plaintiff conceded that his little fingers had not merely stiffened but had contracted (though not to the extent described by Dr Katsaros). According to the plaintiff, he had nothing like an 80 deg contracture of the left little finger and the contracture of his right little finger was “evident” but not severe.[65] Indeed, the plaintiff suggested in cross-examination that the contractures were “not that bad” and for that reason he would not have had the first and second operations if the risk of contracting CRPS had been explained to him.[66]

    [65]   T 218-219

    [66]   T 213

33. I will come back to the plaintiff’s alleged attitude to surgery when I canvas the issue of causation. But for the moment it is convenient to further examine the evidence relating to the severity of the plaintiff’s condition both at the time of the consultation and during the period leading up to the first operation and to then express my findings.

    Other evidence

34. As earlier mentioned the plaintiff called four witnesses who gave evidence as to the condition of the plaintiff’s hands.

35. Ms Bernard was employed at the Blue Mountains College during 1999-2000 as the Program Manager for Hospitality, Management, Sport and Recreation. She said that during that period she was the plaintiff’s supervisor and had regular contact for about 10 hours per week. She said that she did not observe any restrictions with his hands.[67] Her evidence was of no assistance in this matter.

    [67]   T 259

36. Ms Harris was Director of the Blue Mountains College for a period when the plaintiff was teaching there. Before she left the college in September 1999 she observed significant “curving” of the plaintiff’s little fingers.[68] According to Ms Harris, he expressed concern that if his hands got worse he would be unable to demonstrate to students serving and carrying skills.[69]

    [68]   T 312

    [69]   T 312

37. Ms Grice was employed as a teacher at the Blue Mountains College between 1997 -2001 and at the time of trial was the Acting Senior Teacher of Tourism and Hospitality at the college. Ms Grice said in examination-in-chief that in 2000 and 2001 (prior to the first operation) the plaintiff’s little fingers had started to “curl over” from the top joint. She added that his work at the college was fine.[70] In cross-examination Ms Grice said it was, in fact, only one of the plaintiff’s little fingers that she noticed curling over.[71]  She said that the plaintiff was distressed[72] and worried that it would interfere with his work. He indicated that he was very anxious to have something done about it.[73]

    [70]   T 317

    [71]   T 328

    [72]   T 328

    [73]   T 328

38. Ms Frost and the plaintiff have been friends for over 20 years. They initially met in 1988 when they were both teaching at the Adelaide College of TAFE. At the time of trial she was the general manager of TAFE, South Australia.

39. Ms Frost testified that the plaintiff stayed with her and her husband for about 2-3 weeks during the 2000/2001 summer vacation. During that time she observed that the top joints of the plaintiff’s little fingers were “slightly curved” and that [74] his ring finger (she did not say which) was more curved.[75] Ms Frost said that the plaintiff managed to prepare all of the evening meals[76] and cooked and served Christmas lunch for 25 people but expressed concern about the state of his fingers.[77] In cross-examination Ms Frost reiterated that the plaintiff expressed concern that his hands were deteriorating. She also said that while staying with the plaintiff in September 2000 she noticed that he was “having difficulty undertaking tasks such as using kitchen implements and cooking”. She said that he complained to her about those problems and also about difficulties he was having at work.[78]

    [74]   T 391,405

    [75]   T 392

    [76]   T 392

    [77]   T 390

    [78]   T  402-404

40. Ms Frost further testified that the plaintiff stayed with her when the first and second operations were performed by Dr Katsaros. In examination-in-chief, she said that by the time of the first operation the curvature in the plaintiff’s little fingers and ring fingers had progressed though not to the extent illustrated in Dr Katsaros’s drawing ( Ex D99).[79]  In cross-examination Ms Frost pointed out that she was mistaken as to having seen curling of the plaintiff’s ring fingers and said that the contractures were confined to the little fingers at that time. [80]

    [79]   T 409

    [80]   T 406

    Findings

1. I am prepared to accept that during 1999 –early 2001 the plaintiff may have appeared to be able to cope reasonably well at work and with cooking and other household chores. However, I unhesitatingly reject the plaintiff’s contention in cross-examination that he believed his hands were “not that bad”.  That assertion is inconsistent with the complaints that he made to Ms Grice, Ms Harris and Ms Frost. He made it plain to each of them that he was concerned that his hands were deteriorating and would have an adverse impact on his work. He expressed such concern to Ms Harris as early as September 1999.

2. Furthermore, the plaintiff’s assertion that he did not believe that his hands were “that bad” is difficult to reconcile with his evidence- in- chief that, in the course of the consultation on 19 January 2001, he remarked to Dr Katsaros:[81]

   You know it’s obviously bad, what do you reckon. Do they need operating on? He said yes, they do .I said alright, I need to work out when I can have it done. Obviously they both needed to be done…

   [81]   T 113

3. I accept Dr Katsaros’s evidence as to the severity of the plaintiff’s condition and the extent of the contractures prior to surgery. It was a matter of professional importance for him to accurately record those matters in his contemporaneous notes. The notes corroborate his evidence and contradict the plaintiff’s.

4. I am satisfied that there was a gradual deterioration in the plaintiff’s hands during 1999 and 2000 and that by the by time of the consultation in January 2001 the plaintiff had, as recorded by Dr Katsaros, a severe deterioration in both hands, a thick nodule on the palmar aspect of the left little finger, an 80 degree contracture of the left little finger and another severe contracture of the right little finger. I further find that the plaintiff feared that if his hands continued to deteriorate his teaching career would be placed in jeopardy. I am in no doubt that the plaintiff was keen to have surgery to remedy the problem.

   Arrangements for surgery

5. Following the consultation on 19 January 2001 the plaintiff arranged with Dr Katsaros for the first operation to take place at Abergeldie Hospital (‘Abergeldie’), Glen Osmond on 4 July 2001. The plaintiff obtained leave from TAFE for the period 2 July-17 August 2001 and, as earlier observed, stayed with Ms Frost during this time.

   First operation

6. On 4 July 2001 the plaintiff was admitted to Abergeldie and underwent surgery. A CRPS warning was not administered before the operation.

7. Dr Katsaros excised the cyst from the plaintiff’s right thigh and performed on the plaintiff’s left hand a radical fasciectomy[82] (extensive excision of diseased fascia)[83] involving Z-plasties (zigzag closure of the wound designed to prevent contracture).[84] Following surgery the plaintiff was returned to the ward and nursing staff recorded in his “progress notes” that his left little finger was purple and that “movement [was] present with good capillary return and some ooze to wound”. It was later recorded that the plaintiff had smoked though he had been advised not to.[85]

   [82] T 601, Defendant’s operation notes P9/P10, Abergeldie records Ex P11 p56

   [83] T 296

   [84] T 296, T 597

   [85] Abergeldie records Ex P11 p39

8. On 5 July nursing staff recorded in the plaintiff’s progress notes that his left little finger was “dusky with nil sensation but good blood supply” and that his other fingers were “neurovascularly intact”. He was given morphine for pain relief.[86]

   [86] Abergeldie records Ex P11 p39

9. On 6 July nursing staff recorded that the plaintiff’s left little finger had improved. The dressing on his left hand was changed and he was discharged.[87] According to Abergeldie’s discharge records, the plaintiff indicated that he was comfortable and that his pain was controlled.[88]

   [87] Abergeldie  records Ex P11 p40

   [88] Abergeldie  records Ex P11 p44

   Period between first and second admissions to Abergeldie

10. Following his discharge from Abergeldie the plaintiff returned to stay with Ms Frost and her family.

11. On 12 July 2001 the plaintiff attended Abergeldie Hospital and a nurse redressed his left hand. She noted that his left hand was very tender and that his fingers were pink.[89]

    [89] Defendant’s clinical Ex P9/P10 p11

12. On 19 July 2001 the plaintiff consulted Dr Katsaros at his rooms in North Adelaide. Prior to seeing Dr Katsaros a nurse attempted to take out the sutures from his left hand. He said that the procedure was incredibly painful and he probably swore a lot. The nurse then stopped and the plaintiff was seen by Dr Katsaros who indicated that he would remove the sutures during the second operation while the plaintiff was anaesthetised.[90] In cross-examination the plaintiff conceded that the nurse never removed any of the stitches before Dr Katsaros entered the room and that he in fact panicked at the thought of the nurse removing them.[91]

    [90] T 129

    [91] T 225

13. During the consultation the plaintiff again informed Dr Katsaros that he wanted to have the second operation during the same period of leave from work.  Dr Katsaros agreed to conduct the operation on 27 July 2001. As I earlier stated, it is the plaintiff’s case that he would not have had the second operation so soon if he had been advised that such a course of action was not prudent.

14. Dr Katsaros gave evidence that he was satisfied that the first operation had achieved the release of the contracture of the plaintiff’s left little finger[92] and that the plaintiff’s left hand had healed satisfactorily.[93] There were no signs of infection or wound breakdown.[94] He recalled saying to the plaintiff:[95]

    …‘Well, everything seems to have healed quite well and things have proceeded well. I can’t see any contra-indication to proceeding with the second hand’. I don’t strongly recollect whether I told him that it is not usual to do it so quickly, but I think yes, I did –the thought ran through my mind that this was a bit soon, but given his circumstances, it seemed to be a reasonable course of action…

    [92] T 602

    [93] T 602

    [94] T 602

    [95] T 602-603

15. The question of whether Dr Katsaros was negligent in failing to advise the plaintiff to delay the second operation ( the sequencing advice issue) and in failing to schedule the operations further apart (the sequencing issue) are matters that I will canvass later.

    Alleged contracture following first operation

16. Before returning to the chronology of events it should be observed that the plaintiff testified that following his discharge from hospital, on 6 July 2001, he experienced continuing pain in his left hand and noticed what he believed was the commencement of a contracture of the left little finger. He said he told Ms Frost and her family over dinner one night that his hand had been “stuffed up” and that he did not want to go ahead with the operation on his right hand.[96]According, to the plaintiff he was “shouted down” and told not to be a “drama queen”. [97] The plaintiff said that when he attended Dr Katsaros’s rooms on 19 July 2001 the contracture was minimal.[98]

    [96] T 128

    [97] T 128

    [98] T 130

17. The plaintiff’s evidence on this topic received a degree of support from Ms Frost. She said that between the first and second operations she noticed that the plaintiff’s left hand was “beginning to claw” and that “the fingers were starting to curl”. She said that the plaintiff indicated that he was in pain. However, she gave no evidence of the plaintiff expressing reluctance about having the second operation. [99]

    [99]   T 393-394

18. I do not accept that the plaintiff’s left little finger had commenced to contract between the first and second operations. Nor do I accept that the plaintiff was hesitant about having the second operation. Dr Katsaros made no note of seeing such a contracture when he saw the plaintiff on 19 July. Rather, he considered that the operation had successfully released the contracture. Furthermore, the plaintiff conceded that he did not complain to Dr Katsaros that his left little finger had commenced to contract. Nor did he indicate that he was reluctant to have the second operation because he believed the first to have been successful.[100] The plaintiff’s explanation for not having raised these alleged concerns was unconvincing:[101]

    Q     Was there some reason why you didn’t raise those matters with him.

    AI think probably because everyone at home had shouted me down and told me I was being stupid, and also, in fairness, I think like most people I’ve always had a total faith and a total trust in my medical practitioner and hold them in – probably in – it’s a bit like a godlike figure, I suppose.

    [100] T 129

    [101] T 129-130

19. I find it difficult to accept he would not have raised his concerns with Dr Katsaros before undertaking a similar operation. I am satisfied that the plaintiff did not suffer a contracture of the left little finger in the days following the first operation.  I am satisfied that Ms Frost was mistaken in that regard. In my view, what she may have observed was the plaintiff holding the fingers of his left hand in a flexed, “protected and guarded position”. This was something Dr Katsaros observed between the first and second operations.[102]

    [102] T 611-612

20. Even if the plaintiff did suffer a contracture of the left finger between the first and second operations such an occurrence is not consistent with the onset of CRPS. That was made plain by Dr Wheen.[103]

    QI want you to assume then that between these two operations, after the first and before the second, Mr Combe noticed some early clawing of his left hand.  If that was the case are you able to say whether that is any evidence of the possible onset of CRPS?

    ANo. The onset of CRPS is most frequently and almost invariably the onset of acute severe unremitting pain.

    [103] T 300

21. I then asked:

    Q     Any other symptomatology apart from that ?

    AThen swelling, redness, stiffness and all these things follow on, but the recurrence of clawing, as you asked me or what I presume to be flexion posture is not uncommon initially after Dupuytren’s surgery, because that was the initial condition for which the plaintiff had surgery and post-operative splintage to encourage extension as needed, if the patient tends to readopt the flexed position, so that alone does not indicate that CRPS is imminent or evolving.

    Second operation

22. On 27 July 2001 the plaintiff was readmitted to Abergeldie and underwent surgery.[104] Dr Katsaros removed the sutures from the plaintiff’s left hand and performed a fasciectomy on the plaintiff’s right hand (involving Z-plasties). Dr Katsaros noted in the plaintiff’s operation record that the surgery was “performed painstakingly”.[105] He explained that he probably wrote those words because he was surprised by the severity of the plaintiff’s Dupuytren’s condition.[106] He further explained that the successful extension of the right little finger resulted in a skin deficit that made it necessary to apply a “full thickness skin graft” to the finger.[107]

    [104] T 606-607, Abergeldie records Ex P11 p103, Dr Katsaros’s clinical notes Ex P9 P10

    [105] Abergeldie records Ex P11 p103

    [106] T 606

    [107] T 606, Dr Katsaros’s clinical notes Ex P9 P10 p24

23. Nursing staff made the following post-operative entries in the plaintiff’s progress notes: [108]

    ·1650 –…Awake, some discomfort but improved since analgesic given in recovery.  Arm elevated –finger tips pink with brisk return. Some ooze from left hand dressing.

    ·1930 -…Change dressings on left hand only. Saturday to a lighter dressing.

    ·2045 –… [increase in] pain controlled with…morphine. Nil ooze left hand. Right arm dressing ooze over entire wrist area – reinforced lightly – [patient] was nervous and jittery. Has had cigarette…

    [108] Abergeldie records Ex P11 p84

24. On 28 July 2001 nursing staff recorded in the plaintiff’s progress notes that, at 5 am hours, the plaintiff’s left hand was “dry and intact” and that his right hand exhibited “old dry ooze” and remained elevated.[109] Nursing staff later noted, at 12.30 pm, that the dressing on the plaintiff’s right hand was “compressing around wrist, due to old blood tightening on crepe -crepe snipped to loosen pressure, then new crepe placed inside to hold in place”. The dressing on the plaintiff’s left hand was also changed. In relation to the neurovascular status of his fingers it was noted: “fingers pink warm, little finger numb, normal feeling in other fingers”.

    [109] Abergeldie records Ex P11 p84

25. The plaintiff was seen by Dr Katsaros at 2.30 pm on 28 July. His right hand was redressed.  Dr Katsaros noted in the progress notes that he instructed the plaintiff to “extend fingers using his other hand”. He further noted that the plaintiff could be discharged on the following Monday without a further visit from him.[110]  Dr Katsaros explained in evidence that he instructed the plaintiff to extend the fingers of right hand “to avoid the development of post-operative stiffness”.[111] Such gentle exercises are designed to maintain digital mobility and extension gained at operation without jeopardising healing.[112]

    [110] Abergeldie records Ex P11 p85

    [111] T 608

    [112] T 608

26. Dr Katsaros could not recall whether he had given similar advice to the plaintiff in respect of the fingers of his left hand after the first operation and conceded that he made no contemporaneous note indicating that such advice had been given. However, he stressed that it was his usual practice to instruct and demonstrate to patients how they should gently move their fingers.[113]I accept Dr Katsaros’s evidence.  I find that it is probable that, in accordance with his usual practice, he advised the plaintiff after the first operation of exercises he should perform to advance the rehabilitation of his hand. In other words, he gave advice similar to that which he had given the plaintiff after the second operation. 

    [113] T 607

27. The plaintiff testified that when Dr Katsaros saw him on 28 July his right hand was cocked at the wrist (hand at right angle to forearm). He said that Dr Katsaros rebuked him for holding his right hand in the “worst possible position”.  When he explained that his hand was stuck in that position because of dried blood, Dr Katsaros replied: “bullshit”. The plaintiff claimed that Dr Katsaros “started ripping at his bandages” and was reminded by a nurse that he was not wearing gloves. The plaintiff said that Dr Katsaros then put gloves on and finished removing the bandages. He then observed that the plaintiff had a “huge haematoma’ (collection of blood). When the nurse remarked that the plaintiff should have physiotherapy on his right hand, Dr Katsaros replied that it was not necessary.[114]

    [114] T 136

28. Dr Katsaros gave conflicting evidence about his examination of the plaintiff.  He said that he could not recall rebuking the plaintiff for holding his right hand in the wrong position though he could recall scolding him on one occasion for smoking because it could compromise healing and blood supply to the skin.[115]  Dr Katsaros agreed that the bandages on the plaintiff’s right hand were blood soaked[116] but disputed ripping at the bandages and said that he would be most surprised if he had handled the bandages without wearing gloves. [117]

    [115] T 615

    [116] T 643

    [117] T 643

29. Dr Katsaros denied seeing a haematoma on that day. He said that he first discovered the haematoma on 8 August 2001 when the dressing on the plaintiff’s right hand was changed.  The haematoma was located under the skin graft which had been applied to the plaintiff’s right little finger. Dr Katsaros said that as at 28 July it would have been impossible to determine whether the plaintiff had a haematoma because the skin graft was concealed by a “bolus dressing”.[118]

    [118] T 643-644

30. I accept Dr Katsaros’s evidence as to the events and conversations that took place on 28 July 2001. I do not accept that the haematoma was discovered on that day. I find that the haematoma was discovered on 8 August 2001 for reasons which I will develop in a moment.  I further reject the plaintiff’s evidence that Dr Katsaros ripped at the blood soaked bandages and, did so, without wearing gloves.  I find it difficult to accept that a surgeon with Dr Katsaros’s considerable experience would have conducted himself in such a manner.

    Events following discharge from Abergeldie

31. The plaintiff was discharged from Abergeldie on 30 July 2001 and resumed staying with the Frost family. [119] The plaintiff testified that at that stage he was experiencing “fairly severe pain” in his right hand which he attributed to the haematoma.[120]  The plaintiff said that he was unable to comment on the condition of his left hand at that time because he was too distracted by the pain in his right hand.[121]  I note that, according to the Abergeldie records at the time of the plaintiff’s discharge from hospital he was “comfortable” and his pain was “controlled”.[122]

    [119] Abergeldie records Ex P11 p85,  T 136

    [120] T 137

    [121] T 137

    [122] Abergeldie records Ex P11 p90

32. Following the plaintiff’s discharge he received outpatient treatment. It is common ground that he received treatment from nurses on 2 August, 10 August, 15 August and 17 August 2001. In relation to those events the only dispute was whether all of the consultations occurred at the rooms of Dr Katsaros, as the plaintiff testified, or whether some occurred at Abergeldie, as Dr Katsaros testified. This is a minor issue. The more substantial conflict was whether the plaintiff was seen by Dr Katsaros on 8 August 2001.

33. Before I turn to the evidence relating to that conflict it is appropriate to summarise the outpatient treatment received by the plaintiff which is not in dispute:

    ·On 2 August 2001 the plaintiff was seen by a nurse who recorded that the plaintiff’s right hand was “very tender” and that the plaintiff was advised to continue to exercise his hands. The nurse further noted that the plaintiff’s left hand was satisfactory.[123]

    ·On 10 August 2001 the plaintiff was seen by a nurse who cleaned the haematoma and redressed his right hand.[124]

    ·On 15 August 2001 the plaintiff was seen by a nurse who redressed the wound and noted “debrided dry skin and necrotic area – very painful”.[125]

    ·On 17 August 2010 a nurse redressed the plaintiff’s right hand and made the following note: “Improved”.[126]

    [123] Dr Katsaros’s clinical notes P9 P10

    [124] Dr Katsaros’s clinical notes P9 P10

    [125] Dr Katsaros’s clinical notes P9 P10

    [126] Dr Katsaros’s clinical notes P9 P10

34. I turn to 8 August 2001.

35. The plaintiff testified that he never saw Dr Katsaros following his discharge from Abergeldie. In other words, the last occasion the plaintiff saw Dr Katsaros was on 28 July when, on his account, the haematoma was discovered.[127]

    [127] T 137-138 T 232

36. As earlier mentioned, Dr Katsaros deposed that he discovered the haematoma on 8 August 2001when the plaintiff visited his rooms. The haematoma was located below the skin graft on the right little finger. He informed the plaintiff that due to the haematoma he was at greater risk of experiencing recurrent contractures. He advised the plaintiff that he would need aggressive physiotherapy and splintage.[128] The plaintiff said that he wanted to be treated in Sydney and indicated that he would make the necessary arrangements with his general practitioner.[129]

    [128] T 609-610

    [129] T 610-611

37. I accept Dr Katsaros’s evidence.  I find that he saw the plaintiff at his rooms on 8 August 2001 and that it was on this day he discovered the haematoma. His evidence is corroborated by an entry made by his secretary in his clinical notes for 8 August 2001.  She noted: “has haematoma redress see in 1 week”.[130]Furthermore, Dr Katsaros’s practice diary contains an entry indicating that he saw the plaintiff at 10am on Wednesday 8 August 2001.[131] Dr Katsaros explained in evidence that on Wednesdays he consulted patients at his rooms and not at Abegeldie.[132]

    [130] Ex P9/P10

    [131] Ex D112

    [132] T 609

1. I further accept that Dr Katsaros explained to the plaintiff that by reason of the haematoma there was an increased risk of recurrent flexion deformity. I also accept Dr Katsaros’s evidence that following the second operation he noticed that the plaintiff held his right hand, “flexed in a protected and guarded position”, as he did with his left hand following the first operation.[133]  Dr Katsaros explained that the onset of a recurrence of Dupuytren’s contractures may be rapid if a patient holds his hand and does not extend his or her fingers several times each day following surgery.[134]

   [133] T 611-612

   [134] T 612

   Events following plaintiff’s return to New South Wales

2. On, or about, 18 August 2001 the plaintiff returned to Katoomba. He resumed work two days later.

3. The plaintiff asserted in his evidence-in-chief that following the 2001 operations the pain was continuous:[135]

   I think pain is terribly, terribly hard to describe, but it was 24/7, it never stopped, it was absolutely horrendous. They keep talking pain scales 1to 10, and there were many, many periods where it was 10 and I truly believe for over a two year period I was never under 5.

   [135] T 120

4. In cross-examination the plaintiff said that even at the time of trial he was still experiencing a continuous dull pain in his hands.[136]

   [136] T 246

5. On 23 August 2001 the plaintiff consulted his general practitioner, Dr A. Lee.  The plaintiff testified that at the time the pain in his hands was increasing and that his hands were “super-sensitive” to touch. The little fingers on both hands had started contracting quite severely.[137]Dr Lee recorded in his clinical notes that the plaintiff had “wound breakdown” in his left hand and that both hands had contracted fingers.[138] The notes did not specify which fingers were contracted and do not indicate a complaint of pain. The plaintiff was referred by Dr Lee to Wentworth Falls Physiotherapy (WFP) for treatment.

   [137] T 139-140

   [138] Medical notes of Dr Lee  Ex P12-p107

6. It should be observed that in contending that Dr Katsaros conducted the second operation too soon, counsel for the plaintiff placed emphasis on Dr Lee’s note that the plaintiff had a wound breakdown in his left hand. I am satisfied, however, that this particular entry in Dr Lee’s notes is an error. I am satisfied that the wound breakdown was, in fact, in the plaintiff’s right hand.

7. This finding accords with Dr Katsaros’s evidence that the wound in the left hand had healed by the time of the second operation. Furthermore, there are no entries by nursing staff in Dr Katsaros’s notes or Abergeldie’s records for the period 4 July -17 August 2001 that indicate any form of wound breakdown in the left hand. More, significantly, Dr Lee’s error is apparent from the following sequence of events:

   ·On 23 August 2001 Dr Lee wrote to WFP and stated that the plaintiff had been referred for “Physio Post op Dupuytren’s Contracture” in respect of his left and right hands and indicated that the right hand was infected. The plaintiff was prescribed antibiotics.[139]

   ·On 23 August 2001 the plaintiff attended WFP where he was seen by Brenda Elliot, a physiotherapist. She noted flexion contractures in the MCP, PIP and DIP joints of the left index finger and further recorded in her notes that the plaintiff’s right hand had an “infected/open wound”. She instructed the plaintiff to exercise his hands and noted that he was receiving antibiotics for the infection.[140] 

   ·On 27 August 2001 the plaintiff saw Dr Lee who recorded in his notes that he collected  a swab from the plaintiff’s right hand and grew from it a “staph aureus”( staphylococcal infection).  The infection subsequently cleared up.

   [139] WFP notes Ex P14 p 175

   [140] WFP notes Ex P 14 p 166-167

8. It should be further noted that the plaintiff at no stage in the course of his evidence suggested that he had a wound breakdown in his left hand. As I have said, I am satisfied that the wound in the plaintiff’s left hand had healed by the time of the second operation and that the wound break down observed by Dr Lee related to the right hand.

9. I return to the sequence of events concerning the plaintiff’s treatment following his return to New South Wales.

10. On 27 August 2007 the plaintiff again saw Ms Elliot at WFP. She noted that the plaintiff had flexion contractures of the MCP, DIP and PIP joints of the left index and little fingers and desensitisation of the left little finger.[141] By letter of the same date Ms Elliott informed Dr Lee that the treatment the plaintiff had been receiving comprised “isolated and gross finger flexion and extension exercises … home exercises in warm water and also desensitisation programme for the left 5^th finger”.

    [141] WFP notes Ex P 14 p 168

11. She further reported that, at the treatment session on 27 August, the plaintiff demonstrated an improvement in flexion and extension of both the left index and little fingers. [142]

    [142] WFP notes Ex P14 p176

12. The plaintiff re-attended WFP on 30 August, 3 September, 6 September and 17 September 2001. In respect of each consultation, Ms Elliot recorded a degree of continuing improvement in the plaintiff’s condition.[143] Apparently, during the consultation on 17 September, she observed that the plaintiff had two stitches in his right hand that had not been removed during outpatient treatment in Adelaide. The sutures were removed by Dr Lee the following day.[144]

    [143] WFP notes Ex P14 p168

    [144] Medical notes of Dr Lee  Ex P12 p108; Letter from Dr Lee to plaintiff’s solicitors dated 17 March 2009 Ex P13 p156

13. On 4 September 2001 the plaintiff was referred to CRS Australia by his employer for rehabilitation assessment. This occurred as a result of Dr Lee certifying in a letter dated 27 August 2001 that the plaintiff was fit for lecturing but not for duties involving his hands or lifting.[145]

    [145] CRS Australia Workplace assessment report( Dr Wheen’s notes Ex P20 at p 342)

14. The assessment was conducted, on 7 September 2001, by Ms D. Crosbie who reported:[146]

    Due to his current decreased hand function, Mr Combe reports difficulties in the performance of practical tasks that he is required to demonstrate as a hospitality TAFE teacher.  Mr Combe also reports that he lives alone and is experiencing difficulties with performing tasks at home including shaving, cooking, cleaning and some aspects of dressing.

    During the workplace assessment, Mr Combe was observed to maintain both his MCP joint (knuckle) & PIP joints (1^st finger joint) of both hands in a flexed position.  When observed holding a 1 litre jug of coffee, Mr Combe had difficulty both in grasping the handle and controlling the pouring of the coffee into a cup.

    [146] CRS Australia Workplace assessment report( Dr Wheen’s notes Ex P20 at p 343)

15. The plaintiff was referred by CRS to the Sydney Hand Therapy and Rehabilitation Centre (“Sydney Hand Therapy”) where he was seen by Rosemary Prosser, a hand therapist, on 24 September 2001. Ms Prosser recorded in her consultation notes[147] that the plaintiff complained of “hypersensitivity and pain, stressing soft tissues and joints”. These notes constitute the first recording of a complaint of pain by the plaintiff following his return to New South Wales

    Upon examination Ms Prosser found that the plaintiff had:

    ·significant flexed posture of all MP and PIP joints and wrist;

    ·red and swollen hands;

    ·hypersensitive hands especially his “LFs” (presumably this was a reference to little fingers); and

    ·significant stiffness of “both joints and soft tissues”.

    She considered that he needed to be assessed by a hand surgeon.

    [147] Prosser notes Ex P15 pp 209-210 Ms Prosser recoded in her notes that the plaintiff was experiencing “pain”. However, in a letter to CRS Australia dated 12 November 2001 she stated that on 24 September 2001 the plaintiff “presented with severe significant pain and allodynia in both hands” and expressed the view that he had CRPS following surgery contrary to her view that his condition may have been due to a flare reaction: Exhibit p15 p249. 

16. By letter dated 27 September 2001 Ms Prosser reported her findings to Dr Lee:[148]

    Mr Combe is now 2 ½ months post bilateral Dupuytren’s release.  His hand function and use is very poor although this has improved since he started physiotherapy.

    I reviewed Mr Combe on 24.9.01 and fabricated some custom made serial splints to help improve his extension.  His hands generally are inflamed which may be a consequence of the early infection he had in one hand.  It may also be due to a “flare reaction” that is occasionally seen after Dupuytren’s release.  I have discussed this problem with Professor Bruce Conolly (Hand Surgeon).  In the past we have found that a course of corticosteroids to be beneficial for patients with this problem.  I would be grateful if you could review Mr Combe regarding this.

    [148] Dr Wheen’s notes Ex P20 at p 332

17. On 10 October 2010 the plaintiff was again seen by Dr Lee who recorded in his notes: “Hand still painful-small fingers throbbing”.[149]

    [149] Medical notes of Dr Lee  Ex P12 p108; Letter from Dr Lee to plaintiff’s solicitors dated 17 March 2009 Ex P13 p157

    Plaintiff consults Dr Wheen

18. On 19 October 2001 the plaintiff consulted Dr Wheen pursuant to a referral from Dr Lee.

19. Dr Wheen recorded in his clinical notes[150] that the plaintiff complained that both of his little fingers were “now completely numb and super sensitive” and the subject of “constant dull pain”.  He also recorded that the plaintiff presented with:

    ·severe bilateral MPJ contractures

    ·red, shiny, tight skin

    ·no excess sweating and excess hair growth

    ·poor extension and poor grip

    [150] Dr Wheen’s clinical notes P20  p330

20. In a letter to Dr Lee, of 19 October2001, Dr Wheen said:[151]

    [151] Ex P21

    Thank you for referring Mr Combe for further opinion regarding the difficulties he is undergoing in the post operative period following his recent Dupuytren’s surgery.

    This 49 year-old, right hand dominant male works as a TAFE teacher, and he is still working.  He has a 15-year history of Dupuytren’s disease.

    He had initial fasciectomy of the left index finger some 9 years ago by Dr Katsaros with a good result.

    More recently he underwent surgical correction of further Dupuytren’s affecting the left index and little fingers on the 04/07/01 and of the right little finger including possible skin graft on the 27/07/01.  He tells me there was some wound infection following the most recent surgery.  Progressively both hands have become painful and significantly more severely contracted and significantly worse compared to the preoperative condition.  Both little fingers are now completely numb, very hypersensitive and contracted into the palm.  There is constant dull pain in both hands.  I was unable to elicit any history suggestive of carpal tunnel syndrome either pre or post operatively.

    I note he is a smoker, has a moderate alcohol intake of 1 bottle of wine per day and there is some HIV risk.  He is currently taking nil analgesics.  A recent course of Voltaren resulted in GIT bleeding.

    On examination both hands are red, shiny and with tight sensitive skin.  There is no excess sweating or excess hair growth.  There are severe bilateral MP joint contractures with poor extension of all fingers and also poor flexion grip.  Both little fingers are severely contracted into the palm.

    OPINION

    Current situation is the result of severe early bilateral palmar fasciitis or post operative “Dupuytren’s flare”.  It may well be part of the spectrum of reflex sympathetic dystrophy/chronic regional pain syndrome.

    RECOMMENDATIONS

    1.     He should cease smoking

    2.     He should reduce his alcohol intake if possible

    3.I have suggested a HIV test (and Hepatitis B) to Mr Combe although he is somewhat reticent and did not wish this to be done today.

    4.Given recent research revealing an associative link between HIV and Dupuytren’s disease as per my written, he should have a short burst of high dose steroids as we have also discussed by phone.

    5.He should be seen by the Sydney Pain Management Centre and my office will liaise with Mr Combe directly regarding this.  They may wish to consider Guanethidine or stellate ganglion blocks or the medical treatment.

    Whatever, he should be reviewed by Dr Katsaros for his opinion of possible.

    I anticipate that once the acute situation is somewhat settled, then surgery may be indicated by way of amputation of one or both little fingers utilising some of the dorsal skin as a fillet flap in the palm.  I did not think the little fingers would be responsive to any type of salvage or other release surgery.

    …

21. Dr Wheen’s findings indicate that at that time he was of the view that the plaintiff had severe early palmar fasciitis or post operative Dupuytren’s flare which he considered might be part of the spectrum of CRPS.  In other words, at that stage, he had not formed the opinion that the plaintiff’s diagnosis was post-operative contractures induced by CRPS.  In cross-examination, Dr Wheen said the opinion expressed in his report was only a provisional diagnosis.

22. By letter dated 25 October 2001[152] Dr Wheen advised the plaintiff of his recommendations to Dr Lee and indicated that he wanted to review the plaintiff on 1 November 2001 at St Luke’s Hospital in consultation with his colleagues from the Hand Unit.  He further advised that both little fingers were, in his opinion, “unsalvageable” and that amputation of both little fingers might be appropriate following completion of the processes he had recommended.

    [152] Ex P22

23. On, or about, 22 October 2001 the plaintiff was placed on a course of steroid injections pursuant to Dr Wheen’s recommendations. The plaintiff also continued to receive physiotherapy from Ms Elliot who made the following entries in her notes:[153]

    ·22 October 2001-“C/O (complained of) still p(painful) swollen/red MCP joints-difficulty 5^th finger extension”-

    ·25 October 2001-“C/O swelling/ redness ↓ (decreasing) since commencing steroids…able to move a little easier…

    ·27 October 2001- “C/O swelling redness ↑ (increasing) again because of reduced steroid use”.

    ·29 October 2001-“overall improvement except [with] 5^th finger…

    [153] WFP notes Ex P14 p169

24. On 1 November 2001 the plaintiff was reviewed at St Luke’s Hospital by Dr Wheen and his colleagues from the Hand Unit.[154] The same day Dr Wheen wrote to Dr Lee and advised him of the outcome of the review.  He said: [155]

    As planned, we reviewed Mr Combe …today. He has had some benefit from the recent burst of high steroids with reduced swelling in the hand and some softening around the MP joints. The little fingers remain hypersensitive

    There was general agreement that the diagnosis is bilateral reflex sympathetic dystrophy and pain management advice and probable sympathetic blocks will be appropriate.

    …the little fingers are probably unsalvageable and ...eventually amputation may be required. He has already reached this conclusion himself. However, surgery should be delayed until the acute dystrophy situation is under control even then only in liaison with the Pain Management Centre.

    …we have also altered his hand therapy and splintage.

    [154] Dr Wheen’s notes Ex P20 p329

    [155] Dr Wheen’s notes Ex P20 p352

25. The report suggests that the persons who attended the meeting were all of the view that the plaintiff’s condition was the result of bilateral RSD or CRPS. I will use the document as evidence of Dr Wheen’s diagnostic opinion at the time i.e. that in his opinion the plaintiff had CRPS.  To the extent that the letter purports to express the views of other persons it constitutes inadmissible hearsay evidence.

26. The plaintiff was referred by Dr Wheen to the Sydney Pain Management Centre (PMC). As Dr Wheen indicated in the above letter, he believed that the plaintiff’s pain needed to be brought under control before further surgical intervention could be considered.

27. On 14 November the plaintiff was assessed at PMC. The same day Dr M. Carroll (PMC Registrar) advised Dr Wheen by letter of the results of the assessment. He stated:[156]

    Currently he complains of pain and hypersensitivity in the right 5^th finger and over the distal phalanx of the 4^th finger on the right.  He describes similar pain and sensitivity over the left 5^th finger as well as index finger.  He describes a continual dull throb with pain intensity 3-4/10 and continuous.  He experiences marked exacerbation of a burning quality of pain in cold weather.  The affected areas are puffy and swollen and he has noticed purple discolouration.

    From a functional viewpoint he has quite a range of functional limitations including difficulty with writing, using a computer, in personal care, as well as in domestic tasks around the home and in driving his car.  Because of his difficulty using cutlery he is embarrassed to go out and he has had a restricted range of social activity in recent times.

    Mr Combe’s previous medical history includes Bell’s palsy, migraine headache and hypertension.

    On examination Mr Combe reported pervasive mood lowering, was teary, but did not describe any suicidality.  There was swelling and mottled discolouration involving the 5^th fingers bilaterally which were clawed with fixed flexion deformity.  There was also fixed flexion deformity to a lesser degree in fingers 2 and 3 on the right side.  Similar flextion deformity was seen in the 5^th finger of the left hand with lesser degrees of fixed flexion deformity in fingers 2 and 3 in the left hand.

    There was marked allodynia bilaterally involving all aspects of the 5^th finger, over the radial aspect of the left 2^nd finger as well as over the distal phalanx of the right ring finger.  Proximal joint range of motion was fairly well maintained.

    In order to optimally manage his CRPS, Mr Combe will require a pain management programme at this Centre.  I have commenced him on valproate which he will titrate to 200 mg bd.  He will be booked in for nerve block procedures in the near future and will also be reviewed by our physiotherapist and pain psychiatrist.

    [156] Dr Wheen’s notes Ex P20 p357-358

28. By letter dated 5 December 2001 Dr Carroll advised Dr Wheen of a further PMC review of the plaintiff conducted on that day. He said:[157]

    [157] Dr Wheen’s notes Ex P20 p359

    …

    Mr Combe has now commenced valproate and is taking it a dosage of 200 mg twice daily.  Although his spontaneous pain is essentially the same he has had quite marked reductions in evoked pain.  He now no longer complains of the very high levels of allodynia over the medial fingers, but more paraesthesiae only.  On review today there were no colour changes, sweating, or prominent swelling as on initial assessment.

    …

    …

    Mr Combe will now titrate his valproate to 400mg to see whether this affords him any improvement in his pain.  He has been booked in for review with Dr David Gronow on 18.12.2001 with a view to looking at the interventional management of his pain with possible neurolytic/Guanethidine blocks.

    …

29. On 14 December 2001 there was a further review of the plaintiff at PMC.  By letter written the same day Dr Carroll advised Dr Wheen of the plaintiff’s progress:[158]

    Interestingly, since the commencement of sodium valproate, Mr Combe has noted significant improvements in both evoked pain and, in more recent times his spontaneous pain.  With initial dosage titration, he experienced reduction in his marked allodynia over the region of his little fingers bilaterally, over the distal phalanx of the ring finger in the right hand, and over the radial side of his index finger in the left hand.  With further dosage titration, he reports that his spontaneous pain levels have improved and that he no longer experiences such severe dysaesthetic pain exacerbation during periods of cold weather. He has also noted some functional improvement along with this.

    …

    [158]  Dr Wheen's notes Ex P20 p361

1. In his report Dr Morgan stated that the photographs of the plaintiff’s right hand taken prior to surgery appeared “to show recurrent contracture of the little and ring fingers, the appearance being that seen in recurrent Dupuytren’s Contracture”. He added that one could not specifically say that the contractures were due to that and that it was possible they were due to some other condition. As I earlier indicated he agreed, in cross-examination, that the contractures shown in those photographs could have been caused by “longstanding CRPS”.[405]

   [405] T 804

2. I must say that on the latter point, I preferred the evidence given by Dr Allen and in particular Dr Briscoe by reason of her being a specialist in pain medicine. But even if one accepts Dr Morgan’s evidence that the photographs are not inconsistent with longstanding CRPS it does not follow that they are necessarily inconsistent with Dupuytren’s disease a point made plain by Dr Morgan.

3. Significantly, Dr Morgan also said the photographs taken during surgery (displaying the inside of the right hand following incision) reinforced his view that the contractures were in fact the product of Dupuytren’s disease. In his report dated 7 September 2009 he said:[406]

   [The photographs taken during the operation] show the typical appearance of recurrent Dupuytren’s tissue with sheets of dense like Dupuytren’s like material densely adherent to the skin as can be seen in the initial photograph. In the subsequent photographs this tissue has been removed by Dr Wheen from the skin flap and from the overlying deeper tissues…

   [406] Ex D 103 p40; see T 773-774

4. In cross-examination, Dr Morgan’s attention was drawn to Dr Wheen’s operative findings on 24 January 2002, namely, that “there was generalised woody indurated fibrosis of all tissues of the little finger and of the palm”. He dismissed, as “rubbish”, counsel’s suggestion that those findings were indicative of CRPS contracture and added that the findings were “typical of recurrent Dupuytren’s”.[407] I accept Dr Morgan’s evidence on this point. Indeed, as I earlier indicated, on balance, I do not accept that CRPS produces fascial changes macroscopically different to those generated by Dupuytren’s disease.

   [407] T 806

   Proposition (vi): CRPS is more aggressive and rapidly progressive than Dupuytren’s disease. 

5. A fundamental component of Dr Wheen’s diagnosis was his contention that the relatively rapid onset of the plaintiff’s post-operative contractures was best explained by the onset of CRPS rather than the progression of Dupuytren’s disease.

6. This contention was rejected by Dr Briscoe. She said that people who suffer from CRPS may develop digital contractures if they have suffered “severe pain over a prolonged period of time, not one or two or three months”, as happened to the plaintiff. [408] In her view, the rapid onset of contractures was inconsistent with CRPS induced contractures.[409] Similarly, Dr Morgan expressed the view, as earlier indicated, that if the external appearance of the plaintiff’s hands was due to CRPS it must have been a case of “longstanding” CRPS.

   [408] ee findings on history of pain [184]-[189]

   [409] T 828 see also Dr Briscoe’s report Ex D 102 P

7. In the present case there is no dispute that the plaintiff suffered an onset of significant pain at some stage after the operations performed y Dr Katsaros and before he was seen by DrWheen on 19 October 2001. However, I am not satisfied that the plaintiff had longstanding CRPS.  Consistent with Dr Briscoe’s evidence I believe that the evidence is consistent with plaintiff having had CRPS for no more than about three months before the first operation performed by Dr Wheen on 24 January 2002.

8. In my view, the plaintiff’s history of pain is not inconsistent with the following:

   ·That following the operations performed by Dr Katsaros the plaintiff experienced flares of pain caused by those operations which did not amount to CRPS.

   ·That the pain the plaintiff was experiencing in his right hand upon his return to New South Wales was contributed to by the haematoma and infection in his right hand.

   ·That the plaintiff subsequently suffered an onset of CRPS which was evident by the time he saw Dr Ween (and possibly existed when he saw Ms Prosser on 24 September 2001).

   ·That as a result of the treatment the plaintiff received at PMC between November 2001 and mid January 2002 his pain was brought under control by the time performed the first operation on 24 January 2002.

9. That between the first and second operations performed by Dr Wheen and thereafter, the plaintiff did not experience continuing CRPS. The flares of pain the plaintiff experiences in 2002 were isolated pockets of pain that were caused by and followed on from the surgical procedures performed by Dr Wheen.

10. Dr Allen also had something to say on Dr Wheen’s assertion that CRPS is more rapidly progressive than Dupuytren’s disease. In Dr Allen’s report, he directed attention to Heuston’s monograph wherein it is stated in the chapter “Recurrent Dupuytren’s Contracture” that in a study of 224 patients most occurrences of new Dupuytren’s tissue occurred within two years of operation.[410] The author goes on to state:[411]

    Time of recurrence

    It appears that, if recurrence is going to occur, it will do so early.  Figure 59 shows that, of 48 patients showing recurrence, 42 (87%) did so within 2 years and many of these were noted to be present within 6 to 9 months of surgery.  No recurrence has yet been noted as appearing more than three years after surgery, while the incidence of extension carries on at a steady low-level for many years.  The academic significance of this is early period for recurrence is obscure but may be related to a period of vasomotor adjustment in the dermal structures of the operated digit.

    [410] Ex D116 p115

    [411] Ex D116 p117

11. Heuston’s monograph further states:[412]

    Perhaps the most important factor determining the outcome of surgery in the hand and in Dupuytren’s contracture particularly is the state not so much of the hand as of the patient.  The degree of activity of the general diathesis to the production of Dupuytren’s tissue should be assessed with…particular investigation of the family history and a search for knuckle hands and planter lesions.  Two local features are important, the degree of primary digital involvement with interphalangeal bands and nodules and evidence of recurrence after previous fasciectomy.

    [412] D116 p 79

12. Dr Allen was of the view that the rapidity of the plaintiff’s contractures following the operations performed by Dr Katsaros was consistent with the plaintiff having Dupuytren’s diathesis:[413]

    Thus, Mr Combe, who was already prone to develop contractures because of his sex and alleged alcohol intake, also had early onset disease as well as the Dupuytren’s diathesis (involvement of the foot or feet as well as both palms), and a contracture that recurred after the initial excision in July 2001. This combination of features is associated with a high recurrence rate.  There is no need to invoke any other condition to explain the patient’s signs, symptoms, rapid evolvement of the contractures and the severe nature of the disease.

    [413] Dr Allen’s report Ex D101 p 8

13. Dr Wheen suggested that Dr Allen had misinterpreted Heuston’s reference to recurrence as a reference to recurrent contractures[414].  Dr Allen disagreed with that explanation[415] and upon my reading of Heuston, so do I.

    [414] T 512, 564

    [415] T 687-689

14. Dr Morgan was also of the view that the rapidity of the plaintiff’s contractures was not necessarily inconsistent with the cause having been Dupuytren’s disease.

15. As earlier set out, Dr Morgan testified that while trauma does not cause CRPS its occurrence can speed up the rate of contractures.[416] He accepted that a rapid onset of Dupuytren’s contractures following surgery was uncommon, indeed rare. Nevertheless, it is something that does happen.[417]

    [416] T 776

    [417] T 812

16. For the reasons expressed by the defendant’s expert witnesses I am not satisfied that the relatively quick onset of contractures suffered by the plaintiff following the operations performed by Dr Katsaros is necessarily inconsistent with the cause having been Dupuytren’s disease. A quick onset of contractures, as opposed to mere post operative stiffness, may be rare but so are contractures induced by CRPS. Furthermore, I accept Dr Briscoe’s evidence that contractures induced by CRPS occur after a prolonged period of CRPS extending beyond a few months.

    Summary of findings

17. I am satisfied, on the balance of probabilities, that the plaintiff suffered CRPS for a period following the operations performed by Dr Katsaros but I am not satisfied that the syndrome caused the contractures the plaintiff experienced. I am not prepared to accept on the balance of probabilities that Dr Wheen has correctly diagnosed the cause of the contractures. In particular, I am not satisfied of the following matters upon which the validity of Dr Wheen’s diagnosis depends:

    (i)That CRPS produces a proliferation of collagen that is macroscopically different, if it produces a fibrosis at all, macroscopically different to that produced by Dupuytren’s disease.

    On the contrary I find, on balance, that the tissue observed by Dr Wheen was not inconsistent with Dupuytren’s disease.

    (ii)That CRPS and Dupuytren’s disease produce fascial material that is necessarily microscopically indistinguishable.

    On the contrary I accept, on balance, the evidence given by Dr Allen and Briscoe that the presence of fibrovascular nodules in diseased tissue is diagnostic of Dupuytren’s contractures. I further accept that Dr Allen located in the specimens collected from the plaintiff on 24 January 2002 such nodules.

    (iii)That CRPS causes contractures similar to those caused by Dupuytren’s disease.

    On the contrary I find, on balance, that the two conditions produce differences of the type described by Dr Briscoe and that the photographs of the plaintiff’s right hand (Ex P48) display Dupuytren like contractures. Certainly, in my opinion, it cannot be said, on balance, that the photographs are inconsistent with contractures caused by Dupuytren’s disease.

    (iv)That CRPS is more aggressive and rapidly progressive than Dupytren’s disease.

    On the contrary I accept the evidence given by Dr Morgan that the rapid onset of the plaintiff’s contractures could have been caused by Dupuytren’s disease. I further accept, on balance, the evidence of Drs that only longstanding CRPS will produce digital contractures. I further accept, on balance, that the plaintiff’s history of pain is not inconsistent with a relatively short lived, transient experience of CRPS. 

18. Another factor the defendant relied upon was what Mr Trim QC described as Dr Wheen’s change of opinion. In examination–in-chief, Dr Wheen said that all the surgical procedures that he carried out from January 2002 to December 2004 were required because the plaintiff had CRPS.[418] However, in his contemporaneous notes of surgical procedures conducted during 2003 and 2004 he often described the primary cause as Dupuytren’s.[419] In cross examination Dr Wheen agreed that that his contemporaneous notes were accurate and conceded that he was not sure whether the CRPS had burnt out by May 2003.[420] This inconsistency in Dr Wheen’s evidence was a further reason, though not a decisive one, for preferring the evidence given by the defendant’s experts.

    [418] T 280,282,285,286

    [419] T 285 Ex P20

    [420] T 285, 537-541

19. As I have said I am not satisfied that the CRPS suffered by the plaintiff caused his post-operative contractures.  I should make it plain that I accept the defendant’s submission that the CRPS experienced by the plaintiff (with its associated symptoms of pain swelling and allodynia) was not causatively significant in relation to the injuries for which the plaintiff seeks damages.

    RAPID DUPUYTREN’S CONTRACTURE WARNING ISSUE

20. The plaintiff contends that if the contractures he suffered following the operations performed by Dr Katsaros were probably the result of Dupuytren’s disease (as I have found) then Dr Katsaros was negligent in failing to warn him that he might experience a rapid onset of recurrent Dupuytren contractures following surgery.

21. This contention raises the following issues:

    1.Was the potential occurrence of a rapid onset of Dupuytren’s contractures a material risk?

    2.     If it was a material risk would the plaintiff had undergone the operation?

22. In my view there is no substance in the plaintiff’s argument.

    Material risk?

23. For the reasons I expressed earlier, it is the objective limb of the test of materiality that is relevant. The plaintiff did not say or do anything to indicate that he would attach significance to the earliest that contractures might occur following an operation.

24. The plaintiff has admitted that he was aware of the possibility of persistent and recurrent Dupuytren contractures. In my view that was a sufficient warning. I do not think it was necessary for him to specify that such contractures could reoccur within say 2-3 months of an operation. No evidence was presented by the plaintiff to indicate that a doctor should descend into such detail.

25. In any event, I am not satisfied that the risk of the plaintiff suffering a rapid onset of Dupuytren’s contractures was a material one? As Dr Morgan said a rapid onset of Dupuytren’s contractures is a rare phenomenon. Apart from his testimony there is no other evidence on the topic. There is no suggestion that the phenomenon is any more likely to occur than CRPS induced contractures which I have already found did not amount to a material risk. In my view, the plaintiff has failed to establish that the risk of a rapid onset of Dupuytren induced contractures was a material one.

26. Furthermore, I accept Dr Katsaros’s evidence that he informed the plaintiff that he could not guarantee that the proposed operations would be successful. Put another way, the plaintiff was aware that the proposed operations might not release the contractures from which he suffered. I do not accept that a reasonable person in the position of the plaintiff (a person who was prepared to have surgery armed with such knowledge and who was also aware that he might suffer persistent and recurrent contractures) would attach significance to the possibility that such contractures might occur within, say, 2-3 months of surgery.

    Causation

27. But even if I am wrong I am in no doubt that the plaintiff would have elected to have surgery if he had been given the specific warning contended for by the plaintiff. I am satisfied of that fact for the reasons that I expressed in the context of the CRPS warning issue. Moreover, as I commented in the above paragraph if the plaintiff was prepared to have the operations knowing they might not be successful it is difficult to accept that he would have refused to undergo the operations only because he had been informed that the contractures might rapidly return.

28. The plaintiff, in my view, fails on the issues of materiality and causation.

    SEQUENCING ADVICE ISSUE

29. The plaintiff contends that Dr Katsaros was negligent in failing to advise him to defer the second operation until sufficient time had elapsed to ensure that his left hand had fully recovered from the first operation and to allow for the emergence of possible complications in his left hand.  It is the plaintiff’s case that he would have accepted such advice and that following the emergence of complications with his left hand, would not have proceeded with the second operation. In those circumstances he would not have suffered the complications which he experienced in his right hand (haematoma, staph infection, CRPS and rapid contractures).

    The evidence

30. The plaintiff’s contention that such sequencing advice should have been given by Dr Katsaros is based on the evidence of Dr Wheen.

31. In his report of 4 March 2004 Dr Wheen pointed out that CRPS can be severe and not manifest for up to 3-4 weeks following surgery. He added:[421]

    Therefore, in my opinion, it is generally not advisable to undertake surgery for the contra-lateral and until the initial surgery has been shown to have completely recovered and full functional use of the operated hand has been regained.

    [421] Ex P87 p5

32. In evidence-in-chief Dr Wheen said that he was wedded to that view because:[422]

    I think -Dupuytren’s disease complicated by CRPS or not, usually has …quite a period of recovery, where the patient usually has quite a period of recovery, where the patient is not using the hand for normal function, and to operate on the other hand until good function is regained, the patient finds too disabling and I think its inadvisable even without the onset of any particular complication.

    [422] T 297

33. In cross-examination Dr Wheen disputed that his reason for sequencing operations more widely apart than occurred in the plaintiff’s case was merely to ensure functional convenience of the patient. He said:[423]

    [423] T 546

34. The reason for sequencing operations more widely than that, far more widely than that, is to ensure there are none of the serious complications ensuing that would result in a severe functional deficit, that one wouldn’t want to have both hands affected, as in this case.

    He added that it was not merely a case of being satisfied that no infection had affected the hand which was the subject of the first operation and that “one would want to ensure that the hand had absolutely gained full functional use and ability before sequencing surgery on the second side”[424]

    [424] T 546

35. The issue of functional convenience was further pursued in cross-examination:[425]

    Q…If the fact is the patient had one hand operated upon, there are no complications ensuing three weeks after, he has a good recovery, everything’s proceeding exactly as the surgeon anticipates and the patient specifically asked for the second operation to be carried out some three weeks later.  What would contra-indicate the second procedure being carried out some three weeks later.

    ARisk factors particularly in the patient and the manifestation of a disease such as presence Dupuytren’s diathesis, which we’ve discussed, and recurrent surgery and need for PIP joint release, vascular injury, all of these things would contra-indicate and for any routine case of Dupuytren’s surgery needing a second side done, I wait six months, that’s my routine.

    QIt might be your routine but in this man’s case you’re aware that there was not a single contra-indication of the surgery being carried out after some three weeks, isn’t that the case.

    A[If] a patient with Dupuytren’s diathesis … needed a PIP joint release at the first procedure, one can routinely predict – without any CRPS – one can routinely predict a significant time [for] functional recovery, splintage therapy for the soft tissues to settle and mature, and for the hand to resume function, minimum three months and usually six.

    QThat’s my point I took you to before, it is a question of functional recovery is it not, so the patient is least inconvenienced in that he has one, at best, could be functioning hand, during the time of recovery from the initial surgery; isn’t that the key to this issue.

    A     Yes.

    [425] T 550-551

36. As earlier canvassed, Dr Katsaros conceded that it was not his usual practice to perform such operations so close together to allow for the emergence of complications and for the healing of the hand.[426]. He initially told the plaintiff during the consultation on 19 January 2001 that whether he could conduct the two operations during the same period of leave was dependent upon the existence of delayed healing and other potential complications.[427] Following the first operation he agreed to proceed with the second operations because the left hand had healed and there was no contraindication to proceeding with the second. There was no infection or wound breakdown in the left hand.[428]

    [426] T 602,605,630

    [427] T 596-597

    [428] T 602-603

1. Dr Morgan was also questioned on this issue. In cross-examination he disputed that the risk of CRPS occurring was itself a contraindication to Dr Katsaros performing the two operations only 23 days apart. He also disputed that the plaintiff’s diathesis was a contraindication:[429]

   Q     Why’s that

   AIf they’re going to get a recurrence –this patient has the [diathesis] …that is no contraindication to doing the surgeries as I’ve already explained you have to take into account his social activities, his work commitments, maybe he needs t have both operations done at this time.

   QBut on the assumption that he doesn’t …then should not the prudent advice have been it’s better to wait.

   AYes, but again that is a hypothetical case. This patient obviously wanted to have both Hands operated on because he had time of from work and I think its reasonable in those cases to operate on both hands.

   [429] T 798

   Material risk?

2. Once gain, for the reasons earlier stated it is the objective limb of the test of materiality that is relevant.

3. Mr Brohier submitted that the sequencing advice should have been given. He stressed Dr Wheen’s evidence that it was his practice to space such operations further apart. He emphasised Dr Morgan’s testimony that if the patient was prepared to wait it would be prudent to advise the patient to wait. Mr Brohier argued that in the present case no allowance was made for delayed healing and the emergence of other complications. He stressed that it was not imperative for the second operation to take place only three weeks after the first and that Dr Katsaros was aware that the plaintiff was able to return to Adelaide in December 2001 for the second operation. He further stressed that the plaintiff’s occupation depended on his hands.

4. Mr Trim QC made the point that following the first operation the plaintiff had specifically asked Dr Katsaros if he could, as the plaintiff had earlier requested, carry out the second operation during the same period of his leave from work. Dr Katsaros concluded that the healing of the hand had progressed well.  There was no evidence of infection in the left hand or any other contraindicator to proceeding with second operation. He submitted that sequencing the operations a considerable time apart was only for patient function and convenience and therefore a matter of choice for the plaintiff.  He pointed the evidence given by Dr Morgan and Dr Wheen’s examination-in-chief and concession in cross examination, underlined above (see [395]).

5. I reject Mr Brohier’s argument. In the present case, what were the material risks that the postulated sequencing advice was meant to guard against?  By the time of the first operation the plaintiff’s left hand had healed. There were no signs of infection or of any other complication in that hand. As I understood Dr Wheen’s evidence, in those circumstances the only medical factors which would have contraindicated proceeding with the second operation were the possible emergence of CRPS and the onset of contractures (induced by either CRPS or Dupuytren’s disease). But as I have already found, neither of those possible occurrences constituted a material risk.

6. I reject the notion that Dr Katsaros should have advised the plaintiff to delay the second operation to allow for the possible emergence of complications that were not material risks. In the circumstances of this case there were no medical reasons that required the provision of the advice contended for by Mr Brohier. I accept the argument of Mr Trim QC that the sequencing of the plaintiff’s operations boiled down to a matter of patient function and convenience. 

   Causation

7. In any event I would have found against the plaintiff on causation. If Dr Katsaros was required to give the sequencing advice contended for by the plaintiff the content of the advice would have contained an explanation for why it as appropriate to delay the second operation. Bearing in mind that the plaintiff’s left hand had healed and that there were no other complications the only other reason, on the plaintiff’s case, for requiring the sequencing advice to be given was to allow for the emergence of CRPS and rapid contractures.  I have already found that the plaintiff would have elected to have surgery even if he had been warned of such risks.  In my view, if the plaintiff had been given advice to delay the second operation for such reasons he would have elected to proceed.

   SEQUENCING ISSUE

8. The plaintiff’s final argument is that proper medical practice required Dr Katsaros to defer the second operation until sufficient time had passed to ensure that the plaintiff’s left hand had fully recovered from the first operation and to allow for the emergence of possible complications in his left hand. The plaintiff contends that if that had happened the complications he experienced in his left hand would have emerged. In those circumstances he would not have had the second operation.

9. In my view that argument fails for the reasons expressed above.  It may be said that it would have been better if Dr Katsaros had adopted his usual practice and waited longer. But in my opinion there were no cogent medical reasons requiring such delay in the circumstances of this case.

   ORDERS

10. Judgment entered for the defendant. I will hear the parties as to costs.