Dikschei v Epworth Foundation
[2010] VSC 435
•27 September 2010 (revised on 28 September 2010 and 19 October 2010)
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 9767 of 2009
| JEAN MAY DIKSCHEI | Plaintiff |
| - and - | |
| EPWORTH FOUNDATION | Defendant |
| - and - | |
| DRAKE AUSTRALIA PTY LTD | Third party |
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JUDGE: | MUKHTAR AsJ | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 September 2010 | |
DATE OF JUDGMENT: | 27 September 2010 (revised on 28 September 2010 and 19 October 2010) | |
CASE MAY BE CITED AS: | Dikschei v Epworth Foundation | |
MEDIUM NEUTRAL CITATION: | [2010] VSC 435 | |
PRACTICE AND PROCEDURE – Stay of proceedings – Medical negligence litigation – Action against hospital – Defendant’s request to plaintiff to submit to diagnostic medical procedure – Plaintiff unwilling – Whether refusal or neglect is without reasonable cause – Application for stay –Applicable considerations for discretion – Rule 33.04
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APPEARANCES: | Counsel | Solicitors |
| For the plaintiff | Mrs M. Hartley SC with Ms M. Milsom | Maurice Blackburn |
| For the first defendant | Mr N. Murdoch | DLA Phillips Fox |
| For the third party | Mr J. Uljans (solicitor) | Hall & Wilcox |
HIS HONOUR:
This is a medical negligence claim against a hospital. The plaintiff, now 76 years old, was an inpatient at the Epworth hospital recovering from surgery. She had a central venous catheter (a tube or line) inserted into her right shoulder or neck area. She alleges that a nurse who attended her to place antibiotic medication into the line squeezed and manipulated the line. As that happened, she lost control of her limbs and had extreme pain in the head. She could not speak. Her case, and the medical evidence adduced for this application, is that she suffered a stroke.
The cause of the stroke, it is alleged, was the nurse’s squeezing of the line, which created an air embolism (an air bubble or gap) in the line that entered the right atrium (side or chamber) of the heart. It is common knowledge that the heart is divided into a left and right side. The embolism then went or “shunted” from the right side across into the left side through the atrial septum (wall) by a patent foramen ovale (a “PFO”), and via the aorta (the body’s largest artery) into the brain. The effect of an embolus is to block off blood supply and deprive the brain of oxygen.
It was explained to me that a PFO is a defect in the septum between the two chambers of the heart. The defect is an incomplete closure of the septum wall, sometimes called a hole in the heart. The opening is present in everyone at birth. That is because the foramen ovale is a normal and quite important component of foetal circulation, allowing oxygenated blood to cross from the right atrium into the left atrium as blood through the foetal lungs is absent. For most people, the two components of the septum fuse after birth. But in some cases, a small communication may still persist, giving origin to a PFO.
Mrs Dikschei required intensive care and rehabilitation to deal with her physical and cognitive impairments. Her condition has improved. But even now she has not regained limb strength; her mobility is impaired; she has problems with balance; difficulties with speech; and has defective short term memory. Her husband tells the Court that at the time he thought he would lose his wife, and it was a terrible time of great worry. He says she is not the same person. He also says she has balance problems, cannot concentrate, does not go out independently, and has become more cautious.
The hospital as defendant now asks the plaintiff to undergo a procedure known as a transoesophageal echocardiogram (a “TOE”). It is an ultrasound of the heart. It involves at least intravenous sedation, placing a probe into the mouth, down the throat and into the oesophagus (the muscular tube that carries food from the throat to the stomach). That enables a visualisation of the atrium. The hospital wants to see if there is a PFO in her heart. It says the TOE is a definitive test for this sort of diagnosis. It says it is rare for complications to arise. The hospital also asked the plaintiff to submit to a “bubble study” as part of the TOE. That involves creating small bubbles in a saline solution, and injecting them into the intravenous line, and seeing if the bubbles appear on the left side of the heart. But in the course of argument Mr Murdoch, counsel for the hospital, disclaimed the intention to do that test.
Under rule 33.04(1), a defendant may request the plaintiff to submit to appropriate examinations by a medical expert at specified times and places. Under sub-rule (2), where a plaintiff refuses or neglects, without reasonable cause, to comply with that request, the Court may, if the request was on reasonable terms, stay the proceeding.
The plaintiff is unwilling to subject herself to the procedure. There is a medical side to the application which I shall expose later. But for Mrs Dikschei, she and her husband say that the procedure is invasive and, at her age, she has suffered enough injury and trauma and does not want to take any risks of any medical procedure however small they may be said to be. The question is whether Mrs Dikschei’s unwillingness (which I think is tantamount to a refusal) is “without reasonable cause”.
Applications such as this are difficult to decide, more so as there was much evidence, and it was admirably argued on both sides. I have come to the conclusion that Mrs Dikschei’s refusal is not without reasonable cause. My reasons follow. But first, a greater exposure of the facts, and some of the medicine, is required.
There is no dispute that the plaintiff was admitted as an inpatient to the Epworth Hospital on 10 July 2005. She presented with complaints of a bowel obstruction and abdominal pain. She was then 71 years old. After several investigations, she was diagnosed with sclerosing peritonitis with an ovarian tumour. On 18 July, Professor Holme, gynaecological oncologist, performed surgery. The hospital records are in evidence. They record that on the morning of 27 July, the plaintiff suffered a major neurological event. The defendant accepts that on 22 July 2005, a central venous catheter was inserted into the plaintiff’s body for the purpose of delivering parenteral nutrition and other substances to her. It was inserted into her right shoulder or neck area. She says that during the night she recalls a nurse dealing with the line because the pump to which she was connected had been beeping. She alleges that at about 3am that morning, a male nurse was attending to place antibiotic medication into the line and whilst attempting to instil the medication into the line, the nurse squeezed the line and manipulated it. The hospital accepts that at about 4am, a male nurse employed or engaged by the hospital was attending to place antibiotic medication into the line.
The plaintiff alleges that immediately and during the manipulation of the line, she lost control of her limbs, felt extreme pain in her head and told the nurse she had a terrible pain in her head. After this, she was unable to communicate for some time.
Later that morning, her husband, Ronald Dikschei, says he arrived at the hospital at approximately 11.30 am. He describes her as lying in bed, limp and unable to move. She did not speak to him, although she acknowledged his presence.
I will not go into the details of the notations in the hospital record. They record tetreparesis (weakness to limbs) and air embolism via a CVC (line). A neurological view was called for and later conducted that day by Professor Russell who immediately identified the problem (albeit with a “?” notation) as an air embolus and a PFO. A CAT scan of the brain performed on 28 July 2005 showed no acute haemorrhage or infarction (death of tissue). A neurologist, Dr R. Gerraty thought the problem might relate to spinal cord infarction or damage of some other sort. He arranged for an MRI scan, but that showed normality. He records that air embolism might be a satisfactory explanation.
Mrs Dikschei then commenced having hyperbaric oxygen treatment. A magnetic resonance imaging (MRI) scan of Mrs Dikschei’s brain was conducted on 3 August 2005. Avoiding too much technical description, the conclusion was multi-focal sub-acute infarcts consistent with recent embolic shower.
The plaintiff also underwent a transthoracic echocardiogram on 4 August 2005. A transthorasic echo is a non-invasive procedure done using an echo probe placed on the surface of the chest which takes about 30 to 45 minutes. It is regarded as a technically limited study because of the “poor acoustic windows”. Nevertheless, the notes record that there was normal biventricular size and systolic function.
An affidavit from the plaintiff’s husband says that the neurologist spoke to him about the plaintiff having a TOE to show whether there was a hole in the heart. He understood this to be a more invasive and distressing procedure than the transthorasic echocardiogram. On his account, the neurologist told him that it was another test that could be done but that it was not necessary. Mr Dikschei, who it may be accepted was helping his wife and making decisions for her at a time of distress, decided that she should not be put through a TOE if it was not necessary. It is important to understand that the TOE is diagnostic and not in any way therapeutic.
After three weeks of rehabilitation at Epworth Hospital, Mrs Dikschei went to the Royal Talbot Rehabilitation Centre. She says that she still has physiotherapy because she remains impaired and has not regained her limb strength. She needs her walking stick or other aid and has problems with balance. She still has problems with her speech and short-term memory.
In this case, the defendant wishes to conduct a transesophageal echocardiogram relying on the evidence of Mr Neil Strathmore, a cardiologist. He has been a consultant cardiologist at the Royal Melbourne Hospital, and an associate professor of the University of Melbourne. The plaintiff’s lawyers have done internet searches of medical directories which also show that Mr Strathmore currently practises or recently practised at the Victorian Heart Centre at Epworth Health Care in Richmond. That is part of the Epworth Health Care Group. One of his practice addresses is given as the Victorian Heart Centre at 89 Bridge Road, Richmond. He is listed as a cardiologist at Epworth Hospital. None of this was revealed by Mr Strathmore in his affidavit. Mrs Hartley, senior counsel for the plaintiff, was careful not to impugn his integrity but I was asked to approach his evidence with caution.
He accepts that an explanation for what occurred was an embolus from the right side of the heart which would require a connection or shunt between the right and left sides of the heart. The most likely connection would be an atrial septal defect or a PFO as a smaller or more limited version. Without such a defect, he says, it is impossible for air injected in a catheter to enter the arterial system and cause multiple strokes. A shunt at some other place in the cardiovascular system could be excluded.
What does a TOE involve? The probe is passed down the throat in the same way as a gastroscopy. It is not explained whether it involves a forced or deliberate swallowing action or some other physical or muscular action (which might be naturally resisted by an apprehensive patient) to get the instrument “down”. The transducer on the probe is placed in the oesophagus immediately behind the atria giving a visualisation of the interatrial septum. It is performed by a cardiologist in a hospital with a cardiac unit such as Epworth or Melbourne Private Hospital.
Mr Strathmore says the risk of complication is extremely low. He accepts there is potential for damage to teeth, mouth, gums and oesophagus while the probe is passed down the throat. But he says with an experienced operator, that risk is extremely small. He accepts that the light sedation that is administered intravenously may cause temporary disorientation and, or, discomfort but says the risk of that is extremely small. The insertion of the intravenous line, he says, carries minor risks of mild transient pain, temporary bruising and infection.
Mr Strathmore refers to and adopts a journal article by Marco R. Di Tullio of New York in the State of the Art Review Article. It says the TOE is the “gold standard” for the detection of a PFO. I can accept that generally speaking “the literature” in various professional disciplines plays a part in the formation of an opinion particularly in a developing or advancing area. But it is not compelling to say that a medical procedure is risk-minimal and simply point to an author in New York who also says so.
The contents of this article are medico-technical, and not explained or critiqued by Mr Strathmore. But doing the best I can, the article reveals that there are conditions that affect the accuracy of the test. There are references in the article to the use of several contrast injections to enhance diagnosis or sensitivity or the PFO detection rate, and the necessity to obtain from the patient a “Valsalva” manoeuvre (unexplained but said to be difficult to perform when there is excessive medication) and other manoeuvres such as coughing as compared to the resting condition. The article does say that major complications are infrequent and describes the test as semi invasive. It says the procedure is more appropriate in cases that are diagnostically equivocal.
According to Mr Strathmore’s affidavit, “A transesophageal echocardiogram will definitively demonstrate to the Court whether the plaintiff does or does not have a shunt in her heart and will hence demonstrate to the Court whether the mechanism of injury alleged by her is possible.”
For the plaintiff, there were three sources of expert evidence. The first was Mr David Richards, a cardiologist and associate professor from Sydney University. He says that the TOE permits excellent visualisation of the interatrial septum. He accepts that with a bubble study, the probability of demonstrating the presence of a PFO or septal defect is 90%. But he says, even with meticulous technique, a TOE may fail to demonstrate the presence of a PFO or an atrial septal defect in a small proportion of cases. In other words, the absence of a visualised PFO or a defect does not exclude the presence of a defect in the heart.
Mr Richards says the major risks, which he says are rare, are the failure to properly pass the probe into the oesophagus, and mucosal damage with bleeding. He says in rare cases, the probe may require the administration of general anaesthesia. He identifies additional risks as being regurgitation of material from the stomach and aspiration to the lungs. He says those risks are minimal if the patient is fasted.
On the causation question, Mr Richards says on the available evidence it was likely there was embolisation of air across the atrial septum when the catheter was manipulated. He reaches that opinion because of the timing between the manipulation of the catheter and the onset of symptoms experienced by the plaintiff, and the changes shown on the MRI. All other causes for stroke, he says, are less likely. The TOE assessment would, at best, increase that likelihood.
A report was also given by Professor Cade from the Intensive Care Unit of the Royal Melbourne Hospital. He says that air embolism is a well-recognised but uncommon complication of catheterisation. It should not occur unless there has been a breach of proper technique of catheter management. He says the description of events that occurred in this case is consistent with air embolism. He pays regard to Professor Russell’s astuteness in suspecting the correct diagnosis at the time and initiating the appropriate investigations and treatment.
The third piece of evidence came from Robyn Fairhall, an intensive care nurse. It may be accepted that she does not fall into the same category as a cardiologist. But she concludes that the sequence of events and the symptom development is consistent with an air or clot embolism.
“Without reasonable cause”
The question is whether the plaintiff’s refusal is “without reasonable cause”. And it must be kept in mind that the effect of the rule is to stay a case unless a plaintiff does the test that a Court might order.
The rule was considered by Kaye J in Downing v Wein.[1] That case involved an MRI procedure. His Honour posed the issue as being whether the MRI scan “would involve risks to the health and welfare of the plaintiff which would justify the plaintiff properly refusing to undergo the scan.” In an ex tempore judgment, his Honour viewed the exercise as requiring a balancing of a plaintiff’s interests which are of great importance as health is a matter of great concern, against a defendant’s interests in being better informed on an issue in the case (usually, as here, causation). It is well known, I think, that an MRI is not invasive and does not involve a technical assault. His Honour ordered that the MRI should take place but it could not involve the administration of general anaesthetic or a contrast dye.
[1](2005) VSC 134.
The plaintiff referred to Stace v Commonwealth,[2] a decision of the Full Court of the Supreme Court of South Australia. The judgment of Matheson J in that case adopted a passage of Webster J in an English decision of Aspinall v Sterling Mansell Ltd [3], which approaches the question by correlating a plaintiff’s objection to the degree of the risk and discomfort involved in the procedure. The passage said this [4]:
“For my part, I would only distinguish between the following examinations: first, an examination of which does not involve any serious technical assault, but involving only an invasion of privacy; second, an examination involving some technical assault, such as a palpation; third, an examination involving a substantial assault but without involving discomfort and risk; fourth, the same, that is to say a substantial assault, but involving discomfort and risk; and fifth, an examination involving risk of injury or to health.
It seems to me that the weight of the reasonableness of the plaintiff’s objections . . . must bear a very close correlation to the order in which I have listed those distinctions.”
[2](1989) 51 SASR 391.
[3]See Aspinall v Sterling Mansell Limited [1981] 3 All ER 866.
[4]At 398
There is also the question of balancing the interests at stake. Causation is usually a major issue, the onus of which is on a plaintiff. There is a natural tendency in adversarial litigation to think that a litigant should not be deprived of an opportunity to put the plaintiff’s case to a pre trial investigative test if it means getting to the truth of the causation question.
But this is not a test on some inanimate object. Neither is it a procedure that is experimental; indeed a cardiologist might regard it as routine. But there is a question of a plaintiff’s personal freedom despite having activated litigation. The question according to the language of rule 33.04 is whether Mrs Dikschei has reasonable grounds to refuse the TOE. The test is subjective, but not wholly so because her grounds must be reasonable by some objective or normative reference.
But I have to weigh up the strength of her refusal against an assessment of hospital’s reasonable requirements in the litigation. To that effect is this view from Webster J in Aspinall which was cited with approval in Stace [5]:
“The Court should examine objectively the weight of the reasonableness of the defendant’s request as seen by the defendant and the weight of the reasonableness of the plaintiff’s objections as seen by him, and balance the one against the other in order to ensure a just determination of the cause in the way most just to the parties, taking into account their reasonable requirements and objections at the time of the exercising of the discretion. This approach, it seems to me, is a logical conclusion, when the question is considered in the context of an adversarial rather than an inquisitorial procedure; in an inquisitorial context, it might well be that the Court would have to decide objectively whether an examination was necessary, as distinct from determining whether a defendant reasonably thought it to be necessary.”
[5]At 399
My first conclusion is that Mrs Dikschei’s unwillingness appears to me to be genuine. It is not a manufactured concern, nor do I assess it as irrational. There is no doubting that what occurred was a shocking event and that Mrs Dikschei has still not fully recovered. She is 76 years old and still having problems. She says she is very worried about undergoing any further medical procedure and has lost confidence in health professionals, given her experience. I think the procedure will be distressing to her. As the procedure will not assist her for any ongoing treatment or well being, she does not want to go through with it. She does not want to take any new risks even though they are small and does not want to suffer any more complications, given what she has been through. Her husband, whose views are relevant, has seen her go through a terrible time of great worry and he does not want his wife to go through the ordeal (as she would see it).
Secondly, as for the risk profile, I think it can be said that the risk of a major complication from a TOE is minimal. But following the scale in Aspinall, the procedure falls certainly into the fourth graduation of being a substantial assault involving discomfort and risk. I am not concerned with epithets as “mild” or “transient”. For a 76 year old woman still recovering from a stroke, the discomfort is real and she may not cope. I am concerned that the risk profile might well increase in the case of an anxious patient having to undergo a mandated procedure.
Thirdly, all of the doctors and specialists who attended Mrs Dikschei after this incident, and the three additional opinion givers for this application, have all reached the same conclusion about the likely cause of the stroke. All of them were able to form an opinion without the necessity for the TOE. None of them say they are not willing to give an opinion without a TOE.
It is accepted by all (i.e., including Mr Strathmore) that an embolism can cause a stroke. It is accepted that a failure to properly handle the catheter can cause an air bubble. It is the fact that Mrs Dikschei experienced the onset of her loss of strength in her limbs and extreme headache and loss of speech immediately after the handling of the line. The MRI showed infarction consistent with embolic shower. At the time the responsibility was on the hospital to do a proper diagnosis in order to give the proper treatment for Mrs Dikschei, yet the evidence does not show that a TOE was regarded as necessary. The recommended course was hyperbaric treatment. Neither the hospital nor Mr Strathmore have challenged that conclusion or suggest that the practitioners have failed to take into account other factors or point to some other shortcoming.
Fourthly, it may be appealing at least to a litigator’s mentality, to say that it would be in the plaintiff’s interests to agree to a TOE because the visualisation of POA or a septal defect would prove her case. The problem is that there is evidence here that a negative TOE test does not disprove the presence of a heart defect. It depends on the size of the shunt. And the failure of showing a shunt does not mean that there was not one present in 2005 when the incident occurred. This all demonstrates, I think, that even with a negative TOE test, for the plaintiff the facts will speak for themselves and she will still contend with the support of medical evidence that the stroke was caused by an embolism from the manipulation of the catheter. The onus of proof will remain on the plaintiff and any question about the utility or definitive value of a TOE can be a factor on which her witnesses may be tested, and for the jury to consider.
It is for those reasons that I have come to the view that the plaintiff’s refusal to consent to the TOE is not without reasonable cause under rule 33.04(1). I would refuse the defendant’s application.
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CERTIFICATE
I certify that the 10 preceding pages are a true copy of the judgment of the Honourable Associate Justice Mukhtar of the Supreme Court of Victoria delivered on 27 September 2010 (as revised on 28 September 2010 and 19 October 2010).
DATED: 19 October 2010.
Nigel Cooper
Associate
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