Dixon v Foote & Calvary Health Care Act Limited

SUSAN VIRGINIA DIXON v ANDREW FOOTE & CALVARY HEALTH CARE LIMITED
[2012] ACTSC 101 (27 June 2012)

NEGLIGENCE – duty of care – standard of care of medical practitioners performing gynaecological procedures – causation – credit – whether procedures necessary – damage to ureter – fistula – post-operative care

Civil Law (Wrongs) Act 2002
Civil Liability Act 2002 (NSW)

Rogers v Whittaker [1992] HCA 58
Strong v Woolworths Ltd [2012] HCA 5
Shoeys Pty Ltd v Allen (1991) ATR 81-104

No. SC 778 of 2007

Judge: Sidis AJ
Supreme Court of the ACT

Date: 27 June 2012

IN THE SUPREME COURT OF THE     )
  )          No. SC 778 of 2007
AUSTRALIAN CAPITAL TERRITORY           )

BETWEEN:SUSAN VIRGINIA DIXON

Plaintiff

AND:ANDREW FOOTE
First Defendant

AND:CALVARY HEALTH CARE LIMITED
Second Defendant

ORDER

Judge:  Sidis AJ
Date:  27 June 2012
Place:  Canberra

THE COURT ORDERS THAT:

Verdict for the plaintiff.

The proceedings are adjourned to a date to be fixed to deal with outstanding issues relating to out of pocket expenses, costs and interest and to make final orders.

My reasons are published.

On 24 September 2004, Mrs Virginia Dixon consulted Dr Andrew Foote, a urogynaecologist, for advice concerning the breakdown of a mesh sling that provided support following the prolapse of her uterus. The sling was placed in position by the defendant in 2002. A decision was made that the plaintiff would be admitted to Calvary Hospital for the purpose of trimming the sling.

On 22 October 2004, the plaintiff further consulted the defendant and a decision was made that, in addition to the treatment for the sling, surgery for abdominal hysterectomy and sacral colpopexy would be undertaken. The plaintiff was admitted to Calvary Private Hospital on 8 November 2004 and the planned surgery was performed on that date.

The plaintiff’s right ureter was damaged as a result of the surgery and urine leaked into the peritoneal cavity. The plaintiff’s condition deteriorated. On 12 November 2004, emergency surgery was undertaken by Dr Mulcahy, urologist, assisted by the defendant, in the course of which the plaintiff’s right ureter was found to be completely obstructed. It was reimplanted into her bladder. Her condition by this stage was such that she was treated in the intensive care unit of the Hospital for two days, before transfer to a general ward where she remained until discharged on 25 November 2004.

A fistula developed shortly after the plaintiff was discharged. Dr Mulcahy repaired the fistula on 2 February 2005 at the National Capital Hospital.

The plaintiff’s claims of loss and damage were made against Dr Foote as the first defendant and Calvary Health Care ACT Limited as the second defendant. The claims against the second defendant were not pursued in the proceedings before me with the result that Dr Foote was the sole defendant.

The plaintiff claimed that the defendant was negligent in undertaking an abdominal hysterectomy in circumstances where it was not necessary, in causing damage to the right ureter during the course of the surgery, in failing to detect the damage to the right ureter prior to the conclusion of the surgery, in causing full thickness damage to the wall of her bladder resulting in the development of the fistula and in his treatment of her post-operatively. She claimed that the result of the defendant’s negligence was that two further laparotomies were required as well as a number of other medical treatments that were necessary to deal with the complications of the surgery performed by the defendant on 8 November 2004. She claimed that she suffered from the immediate aftermath of the multiple surgical interventions, as well as from ongoing complications and side effects.

The defendant denied that he was negligent in any of the advice or treatment that he provided to the plaintiff and challenged her claims of loss and damage. The defence also raised a limitation issue in respect of advice provided on 22 October 2004. This aspect of the defence was not pursued at the hearing and I have therefore disregarded it.

The issues for determination were:

1.Whether the defendant was negligent pre-operatively in advising abdominal hysterectomy and sacral colpopexy when those procedures were medically unnecessary;
2.Whether the defendant was negligent in the performance of surgery on 8 November 2004;
3.Whether the defendant was negligent in the post-operative care provided to the plaintiff between 8 November and 12 November 2004;
4.Matters of credit arising from the evidence;
5.The extent to which any negligence of the defendant was causative of the plaintiff’s loss and damage;
6.The extent to which the plaintiff suffered loss and damage.

My reasons deal with the evidence concerning each of the issues relating to liability. I then deal with the issues of credit that were raised by this evidence. Following my determination of the issues of credit, I set out findings and decisions on liability, causation, loss and damage.

PRE-OPERATIVE ADVICE

The plaintiff suffered a post pregnancy anterior vaginal prolapse in 1994. This was treated in 1995 by a doctor other than the defendant by surgery for a Manchester sling. In 2002 the prolapse recurred and the plaintiff’s general practitioner referred her to the defendant. She first consulted the defendant in September 2002.

The defendant’s clinical notes recorded that on 9 September 2002 he diagnosed a prolapse. He recorded a finding of a bladder wall lesion of 25 mm, an asymptomatic rectocoele and urinary stress incontinence.

The plaintiff further consulted the defendant on 18 September 2002. His notes for that date (Exhibit 10) included a diagram by reference to which he explained the procedure he proposed to deal with the prolapse. Problems noted were mild incontinence, bladder lump and prolapse. The plaintiff signed this document on 18 September 2002.

A CT scan undertaken in 2002 at the request of the defendant reported:

Overlying the cervix but apparently related to the bladder mucosa there is a dome shaped solid mass measuring 2.2 by 1.4 by 2.5 centimetres.

The defendant reported this finding to the plaintiff’s general practitioner, Dr Barraclough, on 10 September 2002.

On 14 November 2002 the defendant performed infracoccygeal sacroplexy to provide support for the prolapsed uterus. Aside from post surgery infection, there were no complications. The defendant reported to the plaintiff’s general practitioner, Dr Barraclough, that there was a lump in the vicinity of the plaintiff’s bladder that he inspected in the course of surgery and it was normal.

The plaintiff consulted the defendant on 24 September 2004 because she noticed that the mesh sling was protruding from her vagina. The plaintiff said that at the time of prolapse in 1994 her symptoms included a bulge in her vagina and stress incontinence. She said she had no symptoms or sense of prolapse in 2004.

The defendant’s notes recorded that on examination he found vault mesh in the vagina. He proposed that it be trimmed at Calvary Hospital and arrangements were made to admit the plaintiff for that purpose. On 5 October 2004 the defendant reported the outcome of this consultation to Dr Barraclough.

On 11 October 2004 the defendant recorded that the plaintiff telephoned him. His note read: Also wants VH (vaginal hysterectomy) - I will review.

The defendant’s note of his next consultation with the plaintiff appeared to record that it occurred on 21 October 2004. He stated that this was the result of his poor handwriting and that the consultation took place on 22 October 2004. This date coincided with the date upon which the plaintiff signed a second document (Exhibit 6) on which the defendant again drew a diagram and set out the options and potential complications.

The clinical note of this consultation read:

o/e ut desc, options VH, TAH, sacral col ...

The defendant explained that these notes dealt with his finding of uterine descent and the options of vaginal hysterectomy, total abdominal hysterectomy and sacral colpopexy. His diagnosis was made after examination and palpation of the plaintiff’s vagina with a speculum in place. As in 2002, the defendant explained the options and complications to the plaintiff by reference to a diagram drawn on a document that she signed. The plaintiff decided to proceed with the option of total abdominal hysterectomy and sacral colpopexy. The defendant said he was satisfied that the plaintiff understood his explanations.

On 5 November 2004, the defendant reported to Dr Barraclough that the plaintiff was concerned about her worsening prolapse and informed him of the surgery scheduled to take place on 8 November 2004.

Dr Barraclough provided a written referral that was dated 28 September 2004 but was written some time later. Dr Barraclough’s letter of referral of 28 September 2004 requested that the defendant see the plaintiff concerning her current prolapse and: She would like to consider hysterectomy at this point. On its face, this supported the defendant’s version of events.

Dr Barraclough made it clear that this was not a diagnosis that he made independently. He was not consulted by the plaintiff before she returned to the defendant in September 2004 and he did not examine her. He said it was likely that the defendant’s staff telephoned him and asked him to issue the letter of referral. The terms of the referral were drafted having regard to the letter he received from the defendant dated 5 November 2004 and information provided by the defendant. They were not the result of any conversation with the plaintiff.

Dr Barraclough said that the plaintiff subsequently told him that her main concern when she consulted the defendant in September 2004 was the mesh sling.

On 18 November 2004, the defendant reported to Dr Barraclough that he performed a difficult hysterectomy due to an adherent bladder and to injury to the right ureter that became apparent on Day 4, requiring reimplantation by Dr Mulcahy.

The plaintiff said that on 22 September 2004 the defendant examined her using a speculum and told her that her body had rejected the mesh that was placed in position in the 2002 surgery. She said nothing was said about prolapse. She agreed that she telephoned the defendant and discussed prolapse. She said she asked him if the prolapse would recur if the mesh was removed. She claimed that he told her that she would probably prolapse again. She then raised the question of whether she would need further surgery on another occasion for anterior repair. He said she probably would and that he could proceed with the original proposal to treat the protruding mesh and undertake a hysterectomy in a further six weeks. She then suggested that it would be better to do everything in the one operation and the defendant agreed with her. She said their discussion was to similar effect at the consultation on 22 October 2004.

The plaintiff said she would not have proceeded with hysterectomy if the defendant had not her that she would probably prolapse again.

Dr Korda (Exhibit 7) reported to the Medical Board that it was not necessary to perform an abdominal hysterectomy to cure a vault prolapse. In his subsequent report Dr Korda described the symptoms of vault prolapse as including protrusion of the vagina through the introitus, pelvic discomfort on standing, hesitancy of micturtion, backache, constipation, dyspareunia and, when severe, ulceration of the vaginal vault. No symptoms of this nature were recorded in the defendant’s clinical notes and the plaintiff denied any symptoms of prolapse.

Dr Mulcahy, Dr Korda and Dr Davy all held the opinion that fibrosis and scarring resulting from the positioning of the mesh sling would probably have prevented the recurrence of prolapse.

Dr Korda said this would have been within the knowledge of a competent urogynaecologist practising in 2004. Dr Mulcahy said that it had been medically accepted since the 1990’s that the response to the plaintiff’s problem was to perform minimal surgery and to wait to see if anything further was required. He said a specialist who in 2004 expected that removal of a sling would lead to prolapse was ill‑informed (Transcript 69.12).

Dr Mulcahy and Dr Davy described the procedure to deal with the protrusion of the sling as relatively simple. Dr Mulcahy said he would perform that procedure in ten minutes under general anaesthetic. Dr Davy said a general anaesthetic was unnecessary and she would perform the procedure in her rooms.

Dr Mulcahy expressed the opinion, as a non-gynaecologist but as someone who worked in close association with gynaecologists and in the urinary tract area of the female pelvis, that the better approach would have been to excise the sling and allow the plaintiff’s vagina to heal. His opinion was that a staged procedure should have been undertaken to ensure that minimal surgical intervention occurred with the maximum benefit.

Dr Cooper reported that at the very least the sling would need to be removed and, if there had been any degree of further prolapse, hysterectomy would have been appropriate.

Dr Cooper said that he was unaware of data to support the opinion that fibrosis around the sling might have been sufficient to prevent further prolapse. He said there might be some basis for the comment but noted that pelvic organ prolapse was often a progressive disorder that worsened with the passage of time.

In response, Dr Mulcahy said his opinion was based on information acquired through attendance at international conferences where the body of opinion was that there was usually sufficient fibrosis along the length of the sling to provide adequate support and that most patients did not subsequently suffer a prolapse.

Dr Mulcahy considered that the information contained in the report of the 2002 CT scan, if taken into account, might have lead to reconsideration of whether to perform the hysterectomy at all, whether it should be partial hysterectomy, or whether to arrange for assistance to be available in the event that it was required.

All of the medical experts agreed that hysterectomy would be reasonable if a prolapse was found on examination, the procedure was discussed with the plaintiff, she wished to proceed and she signed a consent form for the procedure.

THE SURGERY

The plaintiff pleaded that in the course of the surgery performed by the defendant on 8 November 2004 her right ureter was severed. This claim was based on the report of a CT scan performed on 12 November 2004 that the ureter was transected. Dr Mulcahy, who undertook the remedial surgery, described the ureter as having been completely obstructed.

The plaintiff claimed that, with appropriate care, the defendant ought to have protected the right ureter from damage. She provided evidence from a number of medical experts as to the methods by which this protection could have been provided. The issue was the extent to which standard medical practice required that these protective measures should have been implemented in the circumstances of the surgery undertaken by the defendant and whether any of them were implemented.

The parties accepted that the defendant encountered a complication in the course of the surgery. The defendant described this complication in the following terms:

So the visceral, or the second layer of peritoneum was divided at the level of the bladder with the aim of pushing the bladder out of the surgical field. Difficulty was encountered at this stage with a 1 cm cervical – I described it as a fibroid. This was on visualisation, it’s not a histological diagnosis that the lab would perform later on.
…
The adherent area was – in a usual situation the bladder can actually be – the sector which is pushed away, which is passively with the hand or some Raytec gauze. In this instance that was not possible. The fibroid was binding the – firmly the lower segment of the uterus to the bladder. So, I then used a combination of a sharp scalpel and diathermy dissection to create a plane in this sort of area of adherence. (Transcript 244.35)

The defendant described the manner in which he removed the one centimetre section of fibroid with an incision that was slightly larger than one centimetre. He followed this by inspecting the outside of the bladder to assess if there was any hole in it. There was no escape of urine and he could see no hole. He saw a raw area on the outside of the bladder that, because of the thickness of the bladder wall, he was satisfied could be left as it was.

Removal of the fibroid freed the bladder so that it could be moved away from the surgical field.

The defendant then performed his standard practice of palpating both the right and left ureters between his fingers to ensure that they were not in the surgical field. He explained that it was not his standard practice to dissect out the length of the ureter or place a protective stent in the absence of particular reason to do so. He was satisfied that it was not necessary in the case of surgery on the plaintiff. He compared the ureter to a piece of nylon cord and said it had a whip-like feel to it.

When satisfied that the ureters were clear, the defendant applied a clamp to the tissues of the lower pedicle of the uterus before proceeding with the incision that was necessary to remove the lower part of the uterus. He was then able to complete the removal of the uterus without difficulty, close the vault between the uterus and the vagina and complete that part of the surgery with sacral colpopexy. He said the sacral colpopexy procedure and closure of the incision involved the use of sutures and staples in areas that were not in close proximity to the right ureter. A drain was placed within the peritoneal cavity and a small catheter, known as a pain buster, was inserted to drip anaesthetic into the wound.

The next process was to check the inside of the bladder by means of cystoscopy. In this case, the defendant was particularly concerned to check that the bladder was intact in the area from which the fibroid had been dissected. He noted that the bladder reacted to the dissection in the midline. He described the reaction as an abrasion which he said was a loose term, and it can also denote reddening. (Transcript 250.42) The area of the abrasion corresponded to the size of the fibroid. On visualisation by cystoscope the defendant was satisfied that the bladder was water tight and there was no hole.

The defendant said he also looked through the cystoscope and noted that urine was pulsing from both ureters. This indicated to the defendant that the ureters were functioning normally.

The next step was to remove the mesh sling that had protruded into the plaintiff’s vagina. This procedure was performed without incident.

An in-dwelling catheter was put in place with the intention that it remain in the plaintiff’s bladder for four days. This precaution was directed at leaving the bladder empty for four days to allow it to recover from the abrasions that the defendant observed.

Dr Mulcahy performed the emergency surgery on 12 November 2004. He found that the plaintiff was suffering from peritonitis that was the result of the leak of urine into the peritoneal cavity.

Two reports from Dr Mulcahy were in evidence. The first, dated 6 April 2006, was directed to the Chairperson of the ACT Medical Board. The second, dated 24 September 2007, was written at the request of the plaintiff’s solicitors. They were similar in their descriptions of the events of 12 November 2004.

Dr Mulcahy reported that he initially performed cystoscopy and bilateral retrograde pyelograms. The upper urinary tract on the left hand side was relatively normal. On the right side the ureter was obstructed at the level of the vesico uteric junction (VUJ). Dr Mulcahy observed oedema and bruising in the bladder base extending to the right. The bladder appeared to be intact. He carried out a laparotomy, observed bruising and dilation of various parts of the bowel and released some adhesions.

Dr Mulcahy then described the following:

I opened the ureter up just above the vesico ureteric junction (VUJ) where it was completely obstructed and passed up an 8 french gauge tube. It went up easily indicating no obstruction more proximal to the level of the VUJ. I was unable to pass anything down into the bladder through the obstruction. I divided the ureter and reimplanted it in to the bladder in a position which was significantly removed from the base or trigone of the bladder because of the oedema and trauma which was evident at cystoscopy.

Dr Mulcahey described his observations of significant haematoma within the area of the intra-abdomen and pelvis of which he evacuated as much as possible. He placed a suction drain, a ureteric catheter to drain the right kidney and protect the repair and an in-dwelling urethral catheter. The latter was to be left in place for ten days to deal with his concern that the plaintiff was at significant risk of developing a vesico vaginal fistula because of the trauma to the base of the bladder.

On the question of the quality of the surgery performed by the defendant, Dr Mulcahy pointed to:

1.The extent to which the defendant was aware of the potential complications within the plaintiff’s pelvis prior to surgery by way of imaging through ultrasound or CT scan;
2.Dissection of the fibroid in a plane that was too close to the bladder causing bruising and distortion to the bladder;
3.The defendant’s failure, when he became aware of the complication presented by the fibroid and when unsure of the position of the ureter in relation to the dissection of the uterus or its attachments, to perform cystoscopy and retrograde uretero-pyelogram and to insert a ureteric catheter or stent to allow easier anatomical identification of the ureter during a difficult dissection;
4.The defendant’s failure to call for the assistance of a urologist, there being a urologist on call 24 hours a day for Calvary Hospital.

Dr Mulcahy said a competent surgeon dealing with a fibroid ought to be able to carry out the dissection without undue harm or injury to adjacent organs. He concluded that the injury to the plaintiff’s ureter could have been avoided if proper care were taken in pre-operative evaluation, intra-operative evaluation and intra-operative surgical technique, particularly by a person who was claiming to have extra skills in this area as a result of marketing himself as a urogynaecologist.

Dr Mulcahy was called to give evidence at the hearing of the plaintiff’s claim, in the course of which he expanded his explanation of the surgical process and confirmed the opinions expressed in his reports.

He explained that the dilation of the bowel, in particular the caecum, was the result of the absence of peristalsis caused by urine leaking into and remaining in the retroperitoneum from 8 November 2004 until the emergency surgery four days later. He described the condition of the right ureter as distended and tortuous, having expanded both in diameter and length as a result of the pressure caused by the obstruction. He said the tortuous nature of the ureter was apparent on the CT scan that was taken prior to surgery.

Dr Mulcahy said the damage to the bladder base was such that the fistula subsequently developed and the nearby ureter was significantly injured. The result was that two urological organs were injured as a result of the dissection.

On the question of whether the defendant carried out the procedure to an acceptable standard of care, Dr Cooper limited his answer to that part of the procedure that related to the hysterectomy. He said that there were clear difficulties at the cervical region as a result of previous surgery, the adenomyosis and the fibroid, that the defendant appeared to perform the hysterectomy appropriately and to note the bladder abrasions and that the bladder was intact.

He said it was within the capacity of a gynaecologist to remove a lesion adjacent to the bladder and to repair any minor hole in the bladder that might result. He also considered that where there was concern as to the integrity of a structure then it would be reasonable to call for assistance from a specialist urologist.

Dr Cooper said he respected the opinions of Dr Korda and that it would be reasonable to defer to his opinion as a urogynaecologist concerning the reasonable practice of another urogynaecologist.

Dr Davy said that as a gynaecologist qualified in the sub-specialty of oncology it was her practice to consult widely when necessary concerning surgery involving the bowel and bladder. This was particularly so when upper urinary tract work or reimplantation of a ureter was involved. She denied that she would be less likely to consult if she had urogynaecological qualifications.

Dr Davy was asked to comment on that part of the report of Dr Cooper, gynaecologist, to the Medical Board dated 12 October 2005 in which he said:

With the benefit of hindsight it would appear that measures to assess the ureteric patency at the time of cycstoscopy would have led to an earlier diagnosis with subsequent decreased morbidity.
…
It is possible with close attention to detail that Dr Foote may have been able to detect the injury earlier.

Dr Davy’s response was that the defendant was a sub-specialist whose role was to pay close attention. She thought that Dr Cooper’s comments condoned sloppy behaviour. She said measures to assess ureteric patency at the time of cystoscopy should be the sub-specialist’s bread and butter (Transcript 171.22). She questioned the capacity of Dr Cooper as a gynaecologist to comment on the role of a specialist urogynaecologist.

Dr Mulcahy rejected the criticism of Dr Cooper that he was overly analytic in his reports. He said he prepared his initial report at the request of the Medical Board. He asserted that he took a scientific and meaningful approach to each of his reports, that he was not over critical and that he was considerably concerned that the plaintiff developed two extensive injuries.

Other medical experts provided considerable support for Dr Mulcahy’s opinions.

The fistula

In Dr Mulcahy’s opinion the fistula that subsequently developed was the result of the surgery performed by the defendant. He said it was the result of dissection that was in the wrong plane and too deep into the base of the bladder. This impeded the blood supply that was further compromised by haematoma in the area, leading to necrosis and an opening in the bladder or a fistula.

Dr Mulcahy did not accept that the defendant’s description of damage to the internal wall of the bladder as abrasions was correct. He described the damage as a full thickness injury to the thick wall of the bladder.

Dr Mulcahy was shown a hand drawn diagram (Exhibit 4) on which an area, said to be the area of damage to the bladder, was marked. He said this was only part of the area of damage that he observed on cystoscopy. A professionally prepared diagram was subsequently produced (Exhibit 5) on which Dr Mulcahy marked the area of the damage to the internal wall of the bladder that he observed on cystoscopy. He also marked on this diagram areas that indicated the full thickness damage to the bladder that he observed through cystoscopy and subsequently laparotomy. The defendant agreed with Dr Mulcahy’s description of the area of damage.

Dr Korda noted that the fistula that was diagnosed in December 2004 was midway between the ureteric orifices involving the trigone (the triangular region of the wall of the bladder lying between the openings of the ureters and the urethra). This was in the area of damage to the internal wall of the bladder identified by Dr Mulcahey.

The injury to the right ureter

In respect of ureteric injuries generally, Dr Korda reported:

1.The terminal part of the ureter is 0.9 cm from the surgeon’s needle during a hysterectomy.
2.75% of ureteric injuries occur from gynaecological operations, with 75% of these occurring during abdominal hysterectomies and 25% during vaginal hysterectomies.
3.Almost any gynaecological procedure can result in ureteric injury.
4.The proximity of the ureter to the pelvic organs means that it is at risk of injury during gynaecological surgery.
5.The risk of injury is increased where the normal course of the ureter is altered, for instance, in the case of an enlarged uterus, pelvic adhesions or massive haemorrhage.
6.The ureter may be ligated, cut or avulsed during surgery.
7.The ureter is at risk during bleeding when an injudiciously placed haemostatic stitch may occlude or kink it.
8.Ureteric injuries have dire consequences.
9.Pre-operative IVP or placement of ureteric stents do not prevent ureteric injuries.
10.The only real way to prevent injuries is to recognise their potential occurrence.
11.Palpation of the ureter cannot be relied upon for identification.
12.In the case of the abnormal pathology the ureter must be dissected out.
13.Only direct visualisation of the ureter and demonstration of peristalsis ensures correct identification.
14.To minimise risk of injury in the presence of abnormal pathology:
(a)consideration should be given to the type of incision to be used, the Pfannenstiel incision being unsatisfactory in such circumstances;
(b)the incision should be such that it permits identification of the ureter so that it can be avoided when clamping the infundibulo-pelvic ligament that carries blood supply to the ovaries;
(c)clear identification is required when attempting to control bleeding during dissection of the uterine artery and during the placement of clamps at various stages of the surgical procedure and on placement of sutures during closure of the peritoneum.

15.The presence of peristalsis does not prove full viability.
16.If injury is recognised or suspected inter-operatively, intravenous methylene blue should be injected to identify the site and a urologist should be consulted if damage is confirmed.

Dr Davy endorsed Dr Korda’s extensive summary of the medical literature.

Dr Korda said:
Therefore the most important way to prevent ureteric injury is to make an incision that allows for good exposure to ensure that the ureter is never removed from the consciousness of the surgeon and it is dissected, exposed and visualised during surgery. This is even more important when the anatomy is distorted by the presence of large fibroids, adhesions, endometriosis or previous surgery.

The experts raised a number of issues directed at the question of whether the defendant adopted adequate techniques for the prevention or detection of injury to the ureter.

Palpation

All of the experts, including Dr Cooper, agreed that the technique of palpation of the ureters was not adequate, in particular when, as in this case, surgery was complicated by the presence of a fibroid.

Dr Mulcahy, Dr Korda and Dr Davy all said that it was not possible to palpate the ureter at the site of the VUJ or where it was near the bladder.

Dr Korda said palpation at the pelvic brim was insufficient to protect the ureter at the point of entry to the bladder. He said it was necessary to see it clearly before placing a suture in that area. In respect of palpation generally, he said that most authorities and every textbook or article informed that palpating the ureter was a very unreliable method of identifying it.

Dr Mulcahy said the course of the ureter was of significant length, part of which extended into the pelvis.

Dr Cooper agreed that palpation of the ureters was insufficient. He said that it provided some assistance but that the ureter was most at risk at the point where it was adjacent to the cervix. At that point it was difficult, if not impossible, to palpate the ureter and it was therefore necessary to take steps to open and visualise it.

Visualisation

Dr Korda was critical of the failure by the defendant to identify or dissect the ureters prior to removal of the plaintiff’s uterus because of the likelihood of marked distortion of the ureters in a patient with a fibroid in the region of the cervix that was adherent to the bladder. He reported:

Dissection of the ureter and documentation that this had taken place is the appropriate standard of care. The routine identification of the ureters and bladder base in a situation like that encountered in Ms Dixon’s surgery on 8 November 2004 is essential to prevent unrecognised injuries and fistula formation.

Dr Davy reported that careful inspection of the whole length of the ureter in difficult surgical dissections was a standard of care that should be undertaken while the abdomen remained open. She said that surgeons undertaking pelvic surgery should be adequately trained and have the expertise to perform this inspection.

Dr Cooper disagreed that it was essential for the performance of abdominal hysterectomy to identify the ureter for the whole of its length. He said this was done as a matter of course only in cases of cancer or endometriosis. He identified two risks involved in identification of the ureter for the whole of its length, being nerve damage and increased risk of damage to the ureter itself in the dissection process.

He accepted that in this case, where the defendant was aware that the plaintiff had undergone pelvic surgery on two prior occasions and that there was a lesion near the cervix that was adherent to the bladder, a decision might be made to dissect out more of the course of the ureter to avoid inadvertent placement of a ligature or clamp. He did not accept that in such circumstances the ureter should be isolated in its entirety.

Check Mechanisms

All of the experts agreed that, where surgery was complex or difficult, all potential sites of complication should be checked.

Dr Mulcahy said that confirmation that the ureter was not damaged could be obtained by means of retrograde pyelogram. He accepted that the positioning of a stent did not always assist in identifying the ureter.

Dr Korda agreed that the insertion of a stent was not absolutely necessary, although he said it was a very good way of preventing injury. The role of the stent was to identify the ureter. Dr Korda said some surgeons felt more secure when the stent was in place. Others argued that it provided a false sense of security and preferred to dissect and visualise the ureter. He did not consider the failure to use a stent to be negligent.

Dr Davy said that if the whole length of the ureter could not be visualised, it should be radiologically checked or dye inserted to ensure that it remained patent.

In respect of Dr Mulcahy’s proposition that cystoscopy should have been employed with measures such as stents, retrograde urethral pyelogram with contrast or intravenous use of indigo carmine to confirm the integrity of the ureter, Dr Cooper said that these was not routine procedures for a specialist gynaecologist. He declined to comment on the general technique of a specialist urogynaecologist in this regard.

Dr Cooper did agree that in complex or difficult surgical circumstances, if the ureter had not been visualised and if there was concern that the ureter or bladder were at risk, it would be reasonable to undertake inspection with cystoscopy and the injection of dye. The reason for this was that if damage was identified and repaired at that stage, it was likely that there would be no further sequelae.

Cystoscopy

Dr Korda was also critical of the cystoscopy performed by the defendant because the lack of urine excretion from the right ureter was not detected. He said:

Examination of both ureters with the cystoscope would have revealed that the ureter had been transected or obstructed and immediate action to rectify the problem could have taken place. Performing a cystoscopy and not recognising non-excretion of urine from the ureteric orifices is below an appropriate standard of care.

He said that, if transected or obstructed, the ureter could not have excreted urine into the bladder, a feature that should have been noted on cystoscopy.

Dr Mulcahy suspected that the obstruction of the ureter was caused by the positioning of a suture around it. He said this was not supposed to happen during surgery and was preventable by identifying the ureter and following it to the bladder. This step of identification, he said, was mandatory in the case of a difficult dissection to ensure that the ureter could be protected. He agreed that he did not see any suture around the ureter at the time of surgery. He said that this was because he did not undertake further dissection to identify a suture at a time when his focus was on the care of the plaintiff.

As to the means by which the obstruction caused the urine to leak and the resulting peritonitis, Dr Mulcahy said this was the result of the continued production of urine by the kidney, the pressure from which after the ureter became dilated, caused the leak to come from the kidney area.

Dr Davy was asked to consider potential causes for the obstruction to the ureter noted by Dr Mulcahy in the absence of any finding that the ureter was transected. She suggested that the obstruction located by Dr Mulcahy could be the result of a kink from a clamp. She explained that clamps were used to gain time while the surgeon considered how to stop bleeding. If they were left for only a few minutes, they were unlikely to cause injury. Obstruction could occur when the clamp was left in place for some considerable time. She said a clamp should definitely not be placed on the ureter and left for any length of time.

Dr Davy also said that a ligature should not be placed on the ureter. She accepted that in difficult surgery where there was bleeding a ligature might be placed inadvertently around the ureter. She said this emphasised the importance of actual visualisation of the ureter in avoiding inadvertence of this nature.

The defendant’s response to the criticisms of the medical experts was that he did not dissect the ureter or use a stent because the difficulty with dissection of the fibroid was in the midline and not lateral. He palpated the position of the ureters and was satisfied they were clear of where he proposed to apply the clamp. He disagreed with Dr Davy that the standard of care required careful inspection of the whole length of the ureter where difficult surgical dissection was encountered. He maintained that he palpated the ureter for its 10 cm course within the pelvis, his usual practice in non-cancerous surgery where there was no difficulty in the lateral areas. He denied that he placed a suture around the ureter.

The defendant’s position was the occlusion of the right ureter demonstrated in the course of emergency surgery on 12 November 2004 was not present on 8 November 2004. He said that he detected no obstruction of the ureter on palpation. He said he saw urine jetting from both ureters. This indicated to him that there was no obstruction. He agreed that he did not check the area of the obstruction visually. He said this was because he checked internally with cystoscopy.

POST-OPERATIVE CARE

The plaintiff’s evidence concerning the post-operative period between 8 November 2004 and 12 November 2004 was provided in various statements (Exhibits F, H and G) and was as follows.

On 9 and 10 November 2004 the plaintiff inquired about the extent to which her abdomen was distended. The defendant told her that she had undergone a number of procedures as a result of which swelling was to be expected. She had lower back pain that she thought was in the region of her kidney. The defendant examined her in this area and said that her kidneys were not tender.

The plaintiff noticed that liquid coming from the abdominal drain looked the same as that draining through the IDC. She told the defendant this. He agreed and said that he might have nicked her bladder because of the difficulty in removing the fibroid. He told her not worry because it would most likely self-seal. He told her that the urine was leaking from her bladder and would drain out.

On 11 November 2004 the plaintiff’s abdomen was further distended and her pain increased. She was upset that her condition was not improving. Blood was taken in the morning. The defendant and the nursing staff encouraged her to walk to try to dislodge the wind that they thought was causing the distension in her abdomen. She was provided with various preparations to help in this regard. She walked laps of the ward at intervals of 1.5 to 2 hours. Nursing staff did not respond to her requests that they advise her of the results of the blood tests. She required increasing amounts of analgesia for pain.

On 12 November 2004 the plaintiff was feeling very unwell. While walking around the ward at about lunch time she met the registered medical officer, Dr Sangster, and asked him about the results of her blood tests. He told her to return to her bed and he would examine her. On learning that her white cell count exceeded 26, Dr Sangster consulted with the defendant and instigated the actions that resulted in an urgent CT scan and other investigations and the emergency surgery undertaken by Dr Mulcahy.

In the course of his evidence to the court, the defendant was taken through each of the days from 9 to 12 November. He attended the plaintiff daily on 9, 10 and 11 November 2004. He said the drainage of 60 mls at midday and 100 mls at midnight on 9 November 2004 was within normal limits. He said that the other entries in the clinical notes, although recording nausea and distension of the abdomen, indicated that the plaintiff was progressing normally. He said it was usual for the bowel not to function normally for 48 hours post-operatively and that this lead to abdominal distension. There was no record in the notes that the defendant examined the plaintiff in response to complaint of back pain and he did not recall whether or not such an examination took place.

The defendant denied that the plaintiff told him that there was urine in the fluid draining from the abdomen. He denied that he told her that he nicked the bladder. He said it was more likely that he said there was a defect where the fibroid had been removed and that the weakened area might have split. He agreed he thought it would self correct. He said this conversation took place on 10 November or Day 2.

The defendant saw the plaintiff at 6 pm on 10 November 2004. By this time drainage of 600 ml and 300 ml were recorded at midday. A further 200 ml was recorded at midnight. There had been no flatus and the bowels had not opened. Bowel sounds were present, indicating to the defendant that there was some progress. The defendant accepted that the quantity drained was significant. He said the situation was confusing because the amount of drainage was decreasing. He was concerned that there might be a small defect in the weakened area of the bladder wall. In his experience, conservative management of small holes often resolved the situation. He therefore planned to wait a further 24 hours to see if keeping the bladder collapsed would allow things the settle.

The defendant saw the plaintiff at 12 midday on 11 November 2004. There was no record in the clinical notes of the level of fluid that drained from the abdomen up to midday. There was no indication that the defendant inquired about drainage levels at this consultation. The defendant said that the note of 30 mls of drainage at midnight on 11 November 2004 was pleasing, although he could not have known of this record since he did not deal with the plaintiff again until he assisted at emergency surgery with Dr Mulcahy on12 November 2004. He noted that flatus had passed and that the plaintiff was encouraged to mobilise to encourage further flatus to deal with the distension of her abdomen. He ordered a full blood count and testing for electrolytes, urea and creatinine. He said he was mainly targeting electrolytes because the plaintiff had had no food for three days. At this time he thought the plaintiff was making progress.

Blood was taken from the plaintiff on 11 November. There was no record of when the results of the tests were received. The defendant said that the tests were not requested as a matter of urgency and their return might therefore have been expected within one to 12 hours. They were initially distributed to a computer at the nursing station at the ward, requiring that nursing staff log on to access them. The defendant said that the practice at that time was to mail a hard copy of the result to him and to the hospital. The hard copy would be placed with the plaintiff’s charts. The defendant did not know when this was done.

The defendant said he asked Dr Sangster to contact him on receipt of the blood count but he did not do so until the following day.

The defendant did not see the plaintiff in the morning of 12 November. Dr Sangster’s notes at 14.22 on that date dealt with his examination of the plaintiff to determine the severity of her peritonitis. He noted that she was afrebrile and that there was 80 mls of drainage, although it was not clear if that was for the period from midnight or midday. The defendant agreed that the white cell count of 26.4 was markedly raised and that it indicated infection or irritation that required urgent attention. When Dr Sangster telephoned him with the results of the CT scan, including a reported transection of the right ureter, dilation of the ureter, hypo-perfusion of the right kidney, pelvic compression of the rectum and rectum paralytic ileus, it was obvious that assistance was required from a specialist urologist and he directed Dr Sangster to contact Dr Mulcahy.

The defendant said that although he was satisfied through cystoscopy on 8 November 2004 that the bladder was watertight, he did not consider that he should investigate some other source of the leak, although he did not visualise the whole of the ureters at the time of surgery. He said that even with the benefit of hindsight he would make the decision to wait for a further 24 hours from midday on 11 November 2004.

The defendant said he did not expect the bladder wall to break down. When urine drained from the abdomen after surgery he was concerned that the bruised area of the wall might have split. At no stage did it occur to him that the urine came from some other source.

The defendant maintained that he continued to be surprised by the decrease in drainage that followed the surgery on 10 November. He said no expert explained it and he was unable to explain it.

Dr Mulcahy reported to the Medical Board on 6 April 2006 that he was contacted by Dr Sangster who told him that the plaintiff had been very unwell throughout the week, that her abdomen was distended and that the CT scan demonstrated evidence of an upper urinary tract injury.

Dr Mulcahy spoke to the plaintiff prior to surgery. Her abdomen was very distended and she was in significant discomfort as a result. Bowels sounds were virtually absent.

In response to a question dealing with the plaintiff’s post-operative care, Dr Mulcahy made it clear that he relied on information supplied by the plaintiff concerning the deterioration of her medical condition. He said he had no reason to suspect that she lied in her complaints to him. He said the plaintiff complained of immobility, distension of her abdomen, pain, inability to pass flatus, and inability to eat or drink. She told him that prior to surgery she was very fit and active. He was concerned at the extent to which her condition was allowed to deteriorate before assistance was sought. The defendant visited the plaintiff daily but did not consider that she had any serious problem. This alarmed Dr Mulcahy because the defendant admitted that the surgery was complex. Dr Mulcahy was concerned that the defendant was unable to note the plaintiff’s general deterioration and that he attributed her complaints to a small nick in her bladder and a urine leak.

Dr Mulcahy said that any urine leak should be investigated with contrast imaging of the urinary tract. He said this should have been done on 9 November or at the latest on 10 November 2004.

Dr Mulcahy agreed that significant distension could occur within 24 hours of abdominal surgery and that the presence of bowel sounds and flatus was important post-operatively. He said that neither excluded a problem and that the main concern was the distension of the plaintiff’s abdomen. He said it was a matter of day to day clinical practice in a case where surgery was difficult to order blood counts and investigate kidney function. A CT scan should also have been undertaken. Had this been done the plaintiff would have had a better outcome.

As to the appropriateness of the defendant’s decision to continue with conservative treatment for a further 24 hours, Dr Mulcahy said that the plaintiff told him that she was deteriorating on 11 November and her abdomen was more distended and:

... I can’t see how anybody could decide that they would continue with conservative and no manage – no intervention to manage the patient in such a situation. (Transcript 100.22)

By 7 pm on 12 November 2004, the plaintiff was very sick and her abdomen was grossly distended.

Dr Davy said that the difficulty of the surgery should have alerted the defendant to the requirement for extra monitoring of the plaintiff’s vital signs, drains and biochemistry and to the need to react to the first deviation from the normal pattern of recovery. She said the abdominal distension and large volumes of drainage and the content of the drainage were deviations. The drainage could have been subjected to biochemical analysis that would have disclosed values similar to urine, not peritoneal fluid. The suspicion of a fistula should have initiated urgent radiology to investigate all sites of drainage.

She agreed that after hysterectomy the insertion of an abdominal drain was an excellent way of monitoring what was happening within the abdomen. She would expect only a few millimetres of drainage, between 10 to 50 mls or 100 mls at the most. She would not expect that the drainage would continue for three to four days.

Dr Davy said that she would have been very concerned by the recording of 900 ml of drainage and would have investigated the situation at that stage.

She said it was not possible to take the plaintiff’s symptoms in isolation. Taken together they were bloating, high drainage, becoming unwell, and inadequate bowel function. She said bloating was a sign that the plaintiff’s bowels were not moving and that the records of bowel sounds and of opening of the bowels were not determinative. She said it was usual post-operatively to check blood test results for infection and other physiological parameters. It was the responsibility of the surgeon and hospital staff to follow up the blood test results. She described the results of the plaintiff’s blood tests as very abnormal to the point where they should have generated an immediate response.

Dr Korda agreed with Dr Davy that significant drainage from the peritoneal cavity would not be expected after surgery of the nature undertaken by the defendant. Quantities of 900 ml and 200 ml should have been of concern to a urogynaecologist.

Dr Korda said that post-operative management required that when urine drained from the intra-abdominal drain consideration should have been given to either ureteric injury or bladder damage with investigation by IVP or CT scan. He noted particularly that there was no record in the notes of any concern on the part of the defendant at the extent of the drainage.

CREDIT

A number of aspects of the defendant’s evidence caused me to consider the extent to which I should accept him as a witness of credit. This was of particular importance because of the conflicts in the evidence between the defendant and the plaintiff and Dr Mulcahy.

The pre-operative consultations

The first area of concern arose out of the defendant’s claim that he found a prolapse on examination of the plaintiff on 22 October 2004.

The plaintiff agreed that she was worried about prolapse in the context of whether it would recur if the mesh sling was removed. She could not remember if she asked the defendant to examine her when she telephoned him about this concern on 11 October 2004.

It was put to the plaintiff that paragraph 10 of her statement (Exhibit D) made in June 2005 was consistent with the proposition that she requested the defendant to conduct an examination of her. Paragraph 10 read:

10.Over the next couple of weeks, I began to think about what would happen if the sling was removed. I wondered if I would have a prolapse again. I spoke to Doctor Foote on the phone about my concerns. He agreed to see me again and to conduct a proper examination. This took place on 22 October 2004. I postponed the planned surgery at that stage in case another repair/hysterectomy was required.

I did not think that this paragraph could be read in isolation from this extract from paragraph 11 of the same statement:

11.During my consultation with Doctor Foote on 22 October, he examined me and told me he felt that an abdominal hysterectomy and sacral colpolpexy was warranted in view of my age and high level of physical activity.

The plaintiff said she did not remember that the defendant told her that she had a vaginal prolapse. Nor did she recall that she in fact had a vaginal prolapse. She said her recollection of events was acute at the time she made the statement containing the information set out above. She said she probably would have remembered if the defendant told her following his vaginal examination that abdominal hysterectomy and sacral colpopexy was warranted because he detected uterine descent. As already noted, the plaintiff said she had no symptoms of prolapse at this time.

The defendant remembered things differently. He said he examined the plaintiff on 24 September 2004 when he visually identified prolene mesh. On this occasion he used a speculum and viewed the back of the vagina. He made no note of symptoms or diagnosis of prolapse.

The defendant said he had no independent memory of the telephone conversation that occurred on 11 October 2004. He said, however, that it was unlikely that the plaintiff told him in that conversation that she was concerned that if the protruding mesh was removed the prolapse would recur. He denied that at the consultation on 22 October 2004, in response to the plaintiff’s concerns about the consequences of removing the mesh, he told her that removing the mesh would probably result in prolapse. He said that, after examination, he told the plaintiff there was uterine descent.

He totally disagreed that after examination he told the plaintiff that in view of her age and high level of physical activity he recommended total abdominal hysterectomy.

The defendant refused to acknowledge that his clinical notes of 22 October 2004 made no reference to any symptom of prolapse. He said they inferred that there were symptoms although they were not noted. He maintained that the letter sent to Dr Barraclough was dictated at the time of this consultation and also formed part of his notes. This letter was dated 5 October 2004. It stated:

Virginia returned for review as she is concerned about her worsening prolapse. On examination there was a vaginal erosion of the mesh. I have recommended resection of this to be performed in the near future at Calvary Public.

The defendant strongly and totally disagreed that the plaintiff told him that she was concerned about the possibility of prolapse occurring.

The defendant was taken to affidavits verifying answers to interrogatories sworn on 21 December 2010 and 4 December 2011 (Exhibit J). The answer to question 3 in the first affidavit was:

On 24 September 2004 the plaintiff presented with posterior vaginal discharge. Examination found vaginal protrusion of prolene tape from an earlier posterior vaginal repair. On 22 October 2004 I reviewed the plaintiff for the same symptoms.

This answer was changed 4 December 2011 to:

On 24 September 2004 the plaintiff presented with posterior vaginal discharge. Examination found vaginal protrusion of prolene tape from an earlier posterior vaginal repair. On 22 October 2004 I reviewed the plaintiff for new symptoms of prolapse, which was confirmed with physical examination finding uterine descent.

The defendant said that this amendment was made to correct an error in the first affidavit. The content of the answer to question 3 in the first affidavit was consistent with the content of his letter to the Medical Board dated 16 August 2005 (Exhibit 11) in which he wrote:

… Ms Dixon subsequently phoned on 11 October 2004 and requested a hysterectomy. I reviewed her on 21/10/04 (sic), and offered her either a vaginal hysterectomy or an abdominal hysterectomy with sacral colpopexy. Ms Dixon was concerned about the possibility of repeat prolapse recurrence, and elected for the latter.

The defendant said that the content of this letter was true. He regarded it to be compatible with his earlier evidence that the plaintiff was not concerned about the possibility of repeat prolapse. He said the compatibility arose from the fact that there was a prolapse and there was a concern that it not recur in the future. He agreed that the amendment to his answer to question 3, if true, would meet the complaint that he negligently recommended an unnecessary operation.

He said he absolutely would not have discussed the option of total abdominal hysterectomy with the plaintiff if there was no evidence of prolapse.

This material pointed to three aspects on which the defendant’s evidence was not credible. The first was the absence of explanation for the failure to note the prolapse or any symptoms of prolapse when he examined the plaintiff on 24 September 2004 in precisely the same manner as he examined her on 22 October 2004. The second was his insistence that his notes, coupled with his letter to Dr Barraclough, contained reference to the symptoms of prolapse from which the plaintiff was suffering when clearly they did not. The third was the inconsistency between his evidence and his letter to the Medical Board on 16 August 2005 when the content of that letter was substantially consistent with the plaintiff’s evidence.

As a consequence I preferred the plaintiff’s evidence concerning the pre-operative consultations to that of the defendant.

Post-operative treatment

The defendant’s letter to the Medical Board of 16 August 2005 also read:

Postoperatively there was moderate haematuria and serous (sic) abdominal drainage which initially I thought was seepage from the contused bladder, and would resolve with the IDC on free drainage for 7 days. In fact on Day 2 the drainage was diminishing.
I reviewed Ms Dixon daily, as did my ward resident Dr Sangster. When her condition worsened on 11/11/04 he was asked to review her, and he subsequently rang me. A CT was arranged. CT found ureteric transection, and on 12/11/04 ureteric reimplantation was performed with Dr Mulcahey (sic).

This material was inconsistent with the defendant’s evidence in which he disagreed that the plaintiff’s condition was deteriorating by 11 November 2004 to any extent that caused him concern. He said that after examination on that date he believed that her condition was improving. There was no suggestion in his evidence that he thought the plaintiff’s condition deteriorated to the point where he directed Dr Sangster to pay her extra attention.

It was inconsistent with the record that drainage was diminishing by Day 2. According to the record, it was most certainly not diminishing. This was 10 November 2004, the date on which in total 1100 mls of drainage was recorded.

I found these aspects of the defendant’s evidence to be unreliable and I accepted the evidence of Dr Mulcahy and the other medical experts that there were indications that ought to have alerted the defendant to the need to take action to investigate the plaintiff’s condition.

Bladder injury

The defendant rejected the proposition that he caused full thickness damage to the wall of the bladder. He said he saw a reddened area on the inner wall at the time of cystoscopy that he described as abrasions in his operation report. He said the redness was the result of bruising, not damage. He defined damage as an actual break of the surface (Transcript 303.15). He said reddening of the bladder because of bruising commonly occurred after hysterectomy. He said that at the time of surgery he did not regard this as damage. He agreed that, with the knowledge that a fistula developed, there was damage and that it was of a degree that was more significant than he appreciated. Nevertheless he continued to maintain that the degree of damage was not excessive or that, as described by Dr Mulcahy, it extended to the full thickness of the bladder wall. Ultimately, he said:

Okay, it was true the bladder looked quite bad at the second operation in that area. But at the first area I was satisfied that it was bruised only. (Transcript 305.34)

This part of the defendant’s evidence was clearly directed at resisting Dr Mulcahy’s observation of full thickness damage to the bladder wall.

Dr Mulcahy

I considered that the defendant’s attempts to undermine the evidence of Dr Mulcahy did not reflect well on his credit.

The defendant denied that he had a conversation with Dr Mulcahy at the time of the emergency surgery described in paragraph 12 of Dr Mulcahy’s report of 24 September 2007 as follows:

On discussion of this Dr Foote discussed his surgery with me at this time and told me that it was extremely difficult due to adhesions and a uterine fibroid in the area of the base of the bladder. I questioned Dr Foote, as a specialist urogynaecologist, rather than an ordinary gynaecologist. I was concerned that somebody would not have performed a cystoscopy and put in a stent or ureteric catheter to prevent injury to the ureter either before he did extensive dissection, or at least afterwards. Then the injury would have been identified at the time of his surgery and the after care would have been very different. He did not really have any reasonable answer for this. I reminded to him that there is a urologist on call at all times for Calvary Hospital.

The defendant said he told Dr Mulcahy:

… the procedure was difficult at the level of – with the fibroid being adherent to the bladder in the midline with one centimetre defect – lesion (Transcript 289.38)

The defendant denied that any part of the balance of the conversation took place during or after the operation on 12 November 2004. The defendant repeated this denial in the course of cross-examination. The defendant was taken to his affidavit verifying answers to interrogatories sworn on 21 December 2010, in particular to the following:

Q17.During the period from 8 to 12 December 2004, did you ever consult with any urological surgeon concerning any aspect of the evaluation, diagnosis, prognosis and/or management of the plaintiff’s conditions(s)?
Answer:Yes
Q18.If your answer to interrogatory 17 is “yes”, with regard to each consultation indicate:
(a)The date of the consultation:

Answer:12 November 2004.

…
(i)The substance of any advice or recommendation which you received from the consultant;
Answer:Prior to the plaintiff’s surgery on 12 November 2004 Dr Mulcahy and I spoke to the probability that the ureter was injured and that the plaintiff would need a reimplantation.
Following the plaintiff’s surgery on 12 November 2004 Dr Mulchay (sic) suggested to me that in the surgery of 8 November 2004, I could have performed a cystoscopy and put in a stent or ureteric catheter to prevent injury to the ureter.

Cross-examination of the defendant proceeded as follows:

You have told her Honour under oath that no such conversation had taken place. Isn’t that right?---That’s correct.
You swore in your answers to interrogatories that such a conversation did take place, isn’t that correct?---It’s printed here.

Which of these accounts is true?---I misunderstood the interrogatory. I thought I was being asked could I have inserted a cystoscopy and stent as a technical exercise to prevent injury. And my view still is that I wasn’t expecting an injury and so I didn’t insert the stent. (Transcript 308.33)

I did not accept that a person of the defendant’s obvious intellectual capacity could have been misled by these straightforward questions. I concluded that the defendant’s evidence that no conversation took place in the terms described by Dr Mulcahy was false and that it was designed to support his argument that Dr Mulcahy was biased against him.

I was similarly unimpressed by the defendant’s attempts to transfer responsibility for the development of the fistula to Dr Mulcahy.

The primary basis for this proposition was that the condition of the internal wall of the bladder by the time of the surgery on 12 November 2004 had deteriorated to the point where Dr Mulcahy ought to have anticipated the development of a fistula. The defendant said that he would have repaired the bladder wall at that point avoiding the requirement for further surgery and relieving the plaintiff of the discomfort and distress of total incontinence from late November until 2 February 2005 when the fistula was repaired.

Dr Mulcahy agreed that he thought the condition of the plaintiff’s bladder was such that a fistula was very likely to occur. He said he did not repair it on 12 November 2004 for a number of reasons. The most important of these was that the plaintiff at the time was extremely unwell. She was metabolically compromised and suffering from significant peritoneal infection. The surgery for reimplantation of the ureter extended over four hours at the conclusion of which the plaintiff was placed on a respirator in the intensive care unit because of breathing difficulties. He was seriously concerned to ensure her survival. In addition, he said, the area of damage to the bladder wall was extensive and at that stage repair would have involved the removal of a substantial part of the wall, reducing the prospects of a successful outcome. It might also have caused damage to the left ureter.

He therefore allowed for the contingency that a fistula would not develop. When it did, he allowed time for the bladder wall to recover so as to minimise the area affected by the repair.

Dr Korda agreed that this was an appropriate course in such circumstances. I accepted that, unfortunate though the delay might have been for the plaintiff, the course adopted by Dr Mulcahy was medically prudent.

The defendant sought to suggest that Dr Mulcahy’s evidence should not be relied upon because he held some form of animosity towards the defendant. This was said to result from the defendant’s rejection in 1999 of Dr Mulcahy’s proposition that he join him in a commercial venture involving the setting up of professional rooms. It was also said to result from professional competition between Dr Mulcahy as a specialist urologist and the defendant as a specialist urogynaecologist. Dr Mulcahy denied any animosity towards the defendant. He denied any issue of professional competition, stating that the patient base in Canberra was more than adequate for more than one specialist. I noted that in his reports, Dr Mulcahy referred to the defendant’s marketing himself as a urogynaecologist and not just a gynaecologist. It was clear that he considered that promotion of service in this fashion might mislead women generally into understanding that a urogynaecologist was fully trained as a urologist. Aside from this I considered that Dr Mulcahy’s reports were professionally prepared and that he conducted himself during the course of his evidence in a professional manner. I did not accept the contention that his evidence should be rejected on the basis of bias.

The alleged S-bend

The defendant did not remember but said that he could have had a conversation with the plaintiff on 17 November 2004 as recounted in her statement (Exhibit G) as follows:

Dr Foote came and asked if I had any questions. He said that in a way he had done me a favour (this was the second time he had said words to this effect). He said that I had the S bend but now my ureter is normal and all my gynae anatomy is perfect, leaving me in a much better position to do the things I like to do, such as trekking in Nepal. He said I would have been in a lot of trouble if I had got a kidney stone whilst doing this, and isn’t it good that now everything is perfect. He tried to reassure me that I would be fine, that he is an optimist and Dr Mulcahy is a pessimist. He requested that I do not tell Dr Mulcahy that.

The defendant said that he still believed that he was an optimist and that Dr Mulcahy was a pessimist. He did not recall if the comment to that effect made in the course of this conversation was serious or flippant.

Dr Mulcahy said there was no abnormality in the plaintiff’s right ureter except for that resulting from the obstruction of the ureter. This abnormality was not present prior to surgery and he noted in the course of radiological investigation at the time of the fistula repair that the ureter had returned to normal. Dr Mulcahy said that if an S‑bend had been congenital and longstanding it would have been evident on earlier CT scans.

I concluded that the defendant lied to the plaintiff in his contention that she suffered from some pre-existing condition with a view to averting any claim she might bring as a result of the unfortunate outcome of the surgery.

WAS THE DEFENDANT NEGLIGENT?

In Rogers v Whittaker [1992] HCA 58; 175 CLR 479 at 483 the High Court defined the duty of a medical practitioner in the following terms:

… to exercise reasonable care and skill in the provision of professional advice and treatment … [being] a ‘single comprehensive duty covering all the ways in which a doctor is called upon to exercise his skill and judgment’; it extends to the examination, diagnosis and treatment of the patient and the provision of information in the appropriate case. It is of course necessary to give content to the duty in the given case. (at 483)
…
The duty of a medical practitioner to exercise reasonable care and skill in the provision of advice and treatment is a single comprehensive duty. (at 489)

My findings on the issue of liability follow.

Pre-operative advice

With regard to pre-operative advice:

1.For the reasons already noted, I preferred plaintiff’s evidence of the consultations of 24 September and 22 October 2004 to that of the defendant.
2.If the defendant did detect a prolapse, it was asymptomatic and he did not tell the plaintiff of this diagnosis. It was more probable that there was no prolapse.
3.In response to her inquiry, the defendant told the plaintiff that removal of the protruding part of the mesh sling would possibly result in recurrence of the prolapse.
4.It was on this basis that the plaintiff agreed to proceed with abdominal hysterectomy.
5.All medical experts agreed that this advice was not medically sound. The opinion of Dr Cooper, called in the defendant’s case, was that abdominal hysterectomy was appropriate only if there was some degree of further prolapse.
6.The defendant appeared to agree with the opinions of the medical experts through his evidence that he would not have proposed abdominal hysterectomy in the absence of diagnosis of prolapse.
7.My conclusion therefore was that the defendant proposed and proceeded with abdominal hysterectomy when it was not medically indicated.
8.The plaintiff would not have proceeded with abdominal hysterectomy and sacral colpopexy had she been advised that a prolapse would probably not recur.

In the absence of explanation for why, in the plaintiff’s particular circumstances, the defendant considered that it was medically appropriate to undertake these procedures, I find the defendant failed to exercise reasonable care and skill in advising the plaintiff to proceed with abdominal hysterectomy and sacral colpopexy, and I find him in breach of his duty of care to the plaintiff.

The Surgery

The ureteric injury

With regard to the uteteric injury:

1.Injury to the ureter was a recognised risk of the surgical procedure of hysterectomy and was foreseeable. The risk of its occurrence was 1%.

2.In this case, the known risk of damage to the ureter was increased by the complication presented by the dissection of the fibroid from the wall of the bladder in the region of the VUJ.

3.The defendant claimed that the complication of the fibroid was not foreseeable. I rejected this claim. It was contrary to the evidence that the defendant was aware of the presence of the fibroid through investigations undertaken in 2002.

4.It was standard medical practice to take steps to guard against the occurrence of the risk by identifying the location of the ureter. In this case, the defendant relied on the method of palpation of the ureter. All of the expert witnesses agreed that this method was inadequate for the purpose of identification. They agreed the best method of identification was visualisation but that in the area of the VUJ it would be necessary to dissect out the ureter for the purpose of visualising it, a process that had its own significant risks. Other processes to guard against injury were available but not employed by the defendant.

5.It was standard medical practice to take steps at the completion of the procedure to check for and repair any injury to the ureter. This was particularly necessary when the ureter was not visualised in the course of surgery or where surgery was complex or difficult. Both of those circumstances existed in this case.

6The defendant relied on his observation of the excretion of urine from the ureter at the time of cystoscopy, a method described by Dr Cooper and Dr Korda as unreliable. Methods by which damage to the ureter could have been reliably detected were not employed by the defendant.

I find that the defendant failed to exercise reasonable care and skill in the performance of surgery on 8 November 2004 in failing to take steps described by the medical experts as standard medical practice to identify the ureter at the time of surgery and to check for injury after surgery, and I find him in breach of his duty of care to the plaintiff.

The fistula

With regard to the fistula:

1.Dr Cooper raised the issue of whether the mass excised by the defendant was a fibroid or an adenomyoma. He pointed out that adenomyoma had no surgical plane, could cause significant distortion at the cervix and difficulty with clear dissection of the bladder. Dr Cooper explained that a fibroid could be shelled out easily from a cavity. If it was adherent to the bladder and did not shell out easily, then it was likely to have been an adenomyoma.
Both the defendant and Dr Mulcahy were satisfied that the mass excised by the defendant was a fibroid and that this was confirmed on pathological examination.
2.It was not disputed that the fistula developed as a consequence of damage to the wall of the bladder resulting from the dissection of the adherent fibroid.
3.The defendant attempted to minimise the area and depth of damage to the bladder as well as the location of that damage. He denied that bruising to the internal wall of the bladder could be classified as damage.
4This evidence was not sustainable having regard to the subsequent breakdown of the bladder wall and the point at which the fistula developed.
5I therefore preferred the evidence of Dr Mulcahy of the deficiencies in the performance of the dissection of the fibroid by the defendant.

I find that the defendant failed to exercise reasonable care and skill in the performance of surgery on 8 November 2004 in causing undue and full thickness damage to the wall of the plaintiff’s bladder, and I find him in breach of his duty of care to the plaintiff.

Post-operative care

With regard to post-operative care:

1.The defendant was aware that the surgery was difficult and complex. He was aware that there was damage to the bladder wall. Although he said that damage was in an area distant from the VUJ, this was not the case according to Dr Mulcahy whose evidence, for reasons already given, I preferred.

2.Again, medical opinion was unanimous that the quantity of urine that drained from the plaintiff’s abdominal cavity on Day 2 was excessive to the point where some investigation was warranted. Options included CT scan or consultation with a specialist urologist, steps that should have been undertaken on Day 2 or at the latest on Day 3. There was no evidence to suggest that exercising either of these options would have involved undue expense or inconvenience or that they were otherwise unavailable in the circumstances facing the defendant.

3.The defendant failed to recognise the deterioration in the plaintiff’s condition notwithstanding her complaints of increasing abdominal distension and pain for which she required increasing quantities of analgesia.

4.The defendant said he was confused by the reduction in the volume of drainage, although those volumes, according to Dr Davy, remained excessive.

5.Although he was confused, the defendant elected to wait in a situation where, if his suspicion of a split in the bladder wall did not self repair, the consequences to the plaintiff were very serious.

6.Dr Mulcahy said that any urine leak, even if, as suspected by the defendant, it came from the bladder, should have been investigated by Day 2 or at the very latest by day 3, or 11 November 2004. This would have prevented the continued deterioration in the plaintiff’s general health, reduced the period for which the plaintiff remained in hospital and placed her at a lower risk of the development of bowel obstruction and adhesions.

I find the defendant failed to exercise reasonable care and skill post-operatively in failing to recognise that investigations were necessary to confirm or negative his diagnosis in circumstances where he was confused and where the plaintiff’s condition was deteriorating. I find the defendant in breach of his duty of care to the plaintiff.

CAUSATION

Section 45 of the Civil Law (Wrongs) Act 2002 provides:

(1)A decision that negligence caused particular harm comprises the following elements:
(a)that the negligence was a necessary condition of the happening of the harm (‘factual causation');
(b)that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (the scope of liability ).

…
(3)In deciding the scope of liability, the court must consider (among other relevant things) whether or not, and why, responsibility for the harm should be imposed on the negligent party.

No reason was advanced to suggest that there was some basis in principle or policy why responsibility for the harm should not be imposed on the defendant. The first principle therefore required that the plaintiff establish that the defendant’s negligence was a necessary condition of the happening of the harm that she suffered.

The High Court in Strong v Woolworths Ltd [2012] HCA 5 dealt with the equivalent provision in the Civil Liability Act 2002 (NSW). The majority said that s 5D(1)(a) of that Act was a statutory statement of the but for test of causation and confirmed that the process of probabilistic reasoning adopted in Shoeys Pty Ltd v Allen (1991) ATR 81-104 remained available as a process for the determination of liability.

Although in dissent as to the outcome of the appeal, Justice Heydon at [44] said that evidence to establish causation could include direct evidence, evidence from which circumstantial inferences could be drawn and teachings of common experience.

Liability

It followed therefore that the fact that there was no direct or precise evidence of the cause of the damage to the plaintiff’s right ureter did not automatically exempt the defendant from liability.

In addition to denying negligence of any kind the defendant challenged causation on the basis that the evidence did not support the claim that the ureter was severed in the course of the surgery undertaken by the defendant; that there was no evidence that established the cause of the obstruction was the result of the inadvertent placement of a suture or clamp; and that there was no evidence that the right ureter was obstructed in the course of surgery, it being equally open to find that the obstruction was the result of post-operative swelling.

I accepted that the pleaded claim that the ureter was transected or severed was not proved, although this was the finding reported following the CT scan of 12 November 2004. It was not until Dr Mulcahy told the court that the ureter was completely obstructed and not severed that this became apparent. The hearing continued on the basis that the damage caused during surgery was the obstruction of the ureter. No complaint was made by the defendant nor did I understand the defendant’s position to have been prejudiced by this change.

I also accepted that the precise cause of the total obstruction of ureter was not identified by the evidence. The potential causes were said to be occlusion by some form of ligature or the prolonged placement of a clamp or post-operative swelling resulting from the swelling of surrounding tissue.

The defendant relied on his assertion that he observed the excretion of urine from the ureters as evidence that the right ureter was patent after the hysterectomy. None of the plaintiff’s expert witnesses addressed this observation nor were they asked about its value in detecting damage to the ureters. This was unsurprising since the observation was not noted in the operation report or in any material before the court. The matter was not raised until the defendant himself gave evidence of it and questions about this observation were asked of Dr Cooper.

Until asked about this method of detecting whether the ureters were undamaged, Dr Cooper’s opinion was similar to that of the plaintiff’s witnesses, namely that protection of the ureters required dissection of the whole length of the ureter, the placing of a protective stent for the purpose of providing identification of that part of the ureter that could not be visualised, retrograde pyelogram or the injection of dye to confirm that the ureter remained patent.

Although Dr Cooper said the observation of urine excretion at the time of cystoscopy indicated that the ureters were most likely intact at that point, he also said this was not 100% reliable in confirming that the ureters were not damaged or that there would be no subsequent sequelae either from delayed damage through the use of diathermy (not an issue in this case) or as a result of the kinking of the ureter. Dr Korda also reported that the presence of peristalsis did not prove full viability.

I did not accept therefore that, if excretion of urine was in fact observed, this observation alone was sufficient in the circumstances of the complication encountered in dissection of the adherent fibroid and the substantial damage that this caused to the bladder in close proximity to the VUJ, to allow the conclusion to be drawn that the ureter was not damaged in the course of surgery.

Dr Mulcahy provided a limited measure of direct evidence through his description of his observations of the ureter. He described it as having been completed obstructed. In his opinion the obstruction was the result of the misplacement of a suture. The defendant was present and had the same opportunity to observe the ureter. He did not dispute the description provided by Dr Mulcahy.

Taking into account this evidence, together with evidence of the prevalence of ureteric injury in the course of hysterectomy, the complication of dissection of the fibroid, damage to the bladder wall in close proximity to the area of injury to the ureter, and the evidence that the continued excretion of urine did not exclude the presence of injury, I was persuaded that there was sufficient evidence upon which to arrive at a finding that the plaintiff’s right ureter was injured in the course of the surgery performed by the defendant.

Damage

The defendant also raised issues of causation in response to the plaintiff’s claims. Those claims could be classified into four areas:

1.The immediate consequences of the surgery being pain, abdominal distension, and peritonitis resulting from the injury to the ureter and the delay in diagnosis and treatment of the injury. The plaintiff claimed distress arising out of the defendant’s failure to respond to the deterioration in her condition.

2.The deterioration of her condition to the point where emergency surgery and treatment in intensive care were required.

3.The development of the fistula, stress and discomfort until it was repaired and the surgery required for its repair.

4.Scarring, poor body image and the ongoing sequelae related to the development of abdominal adhesions causing chronic constipation and episodes of partial small bowel obstruction with nausea, abdominal pain and distension.

The defendant questioned whether the evidence established that damage was suffered because the right ureter in fact leaked urine into the peritoneal cavity. This proposition arose out of the evidence of Dr Korda and Dr Davy that they could not explain how the urine leaked from the ureter if it was not severed or ruptured in some way. It was suggested that I should not accept the explanation of Dr Mulcahy, the only specialist urologist to give evidence, that the pressure of the urine, unable to escape from the blocked ureter, forced its expulsion from the right kidney. Dr Ham, general surgeon, endorsed Dr Mulcahy’s opinion. He said the urine in the drain came from the kidney or somewhere along the pathway between the kidney and the VUJ.

Further, the defendant said he was satisfied that at the time of cystoscopy the bladder was watertight. It remained intact at the time of the repair surgery on 12 November.

Any doubt on this topic was dispelled by the CT scan undertaken on 12 November 2004, set out in Dr Korda’s report to the Medical Board of 12 December 2005 in which he said:

Delayed scans showed free extravasation of contrast from the ureter into the peritoneal cavity.

I was satisfied therefore that the cause of the urine leak was the damage to the right ureter.

The defendant pointed out that any abdominal surgery had the propensity to result in adhesions and subsequent bowel dysfunction. This was not disputed by the plaintiff’s medical experts and I accepted that it was therefore possible that adhesions developed as a result of the surgery undertaken on 8 November 2004. In fact, Dr Mulcahy reported that he released adhesions in the course of the subsequent surgery on 12 November 2004.

The problem for the defendant was that having regard to that possibility, the plaintiff was then faced with two further significant causes of the development of adhesions. The first was the delay in attending to the urine leak that lead to peritonitis. The second was the abdominal surgery that was necessary to reimplant the right ureter.

The defendant relied on Dr Cooper’s opinion that the delay in attending to the urine leak into the peritoneal cavity was unlikely to have altered the outcome for the plaintiff. Dr Mulcahy and Dr Korda disagreed.

Dr Mulcahy said early attention to the urine leak would have given the plaintiff the chance of a better outcome. He said the delay contributed to the risk that the plaintiff might develop adhesions and complications in the future, leading to the requirement for hospitalisation and further surgery.

Dr Korda said the development of adhesions was a response to trauma to the peritoneum, the surface of which was very delicate. He said the trauma might be inflammatory or surgical. Dr Ham, general surgeon, agreed. He said that a person who had prior abdominal surgery, particularly when complicated by bleeding and infection, was at increased risk of adhesions. He said any blood or urine whatever in the peritoneal cavity could result in the formation of adhesions.

In the plaintiff’s case it was established that at least by 11 November 2004 the plaintiff was suffering from infection and peritonitis.

It was argued that the plaintiff suffered from pre-existing bowel dysfunction. This argument arose from the report of Dr Gavanagh, gastroenterologist and endoscopist, of 7 June 2010 in which he stated that at colonoscopy in 2004, before surgery, he noted that the plaintiff had a redundant colon and required frequent decompression of bowel loops. He said the colonoscopy showed no abnormality other than these variations. Dr Mulcahy explained that the term redundant colon could describe a greater length of colon than was normal or a larger than normal sigmoid or transverse colon.

The plaintiff denied that she was aware of these findings by Dr Gavanagh and said that they caused her no bowel dysfunction prior to the surgery on 8 November 2004.

Dr Barraclough was not concerned by Dr Gavanagh’s reporting of a redundant colon. He denied that this was the cause of the plaintiff’s episodes of bowel obstruction.

The defendant also claimed that a substantial element of the plaintiff’s damages could be related to the delay in attending to the repair of the fistula. I have already dealt with and accepted that in the circumstances this delay was justified.

Dr Mulcahy said it was absolutely incorrect to suggest that surgery to repair the fistula contributed to the formation adhesions. He said that this surgery was carried out extra-peritonally and he did not go into the peritoneal cavity.

I was satisfied therefore that the evidence supported the conclusion that the defendant’s negligence caused injury to the plaintiff’s right ureter, the development of the fistula and the development of adhesions and the bowel dysfunction which developed as a consequence.

THE CONSEQUENCES TO THE PLAINTIFF

The plaintiff was 42 years old at the time of these events. She was 50 at the time of hearing. She was the mother of two adult sons. She was a qualified nurse, practising until 2002 and resuming this work about two years ago.

She had a longstanding interest in Nepal. This interest developed from regular trekking holidays that resulted in an offer from a local Nepalese organisation to lead group treks once or twice a year. In addition she worked with a charity to provide education to Nepalese children and undertook volunteer nursing. She was currently working on a project to establish a medical clinic in a remote area, some two days’ travel from medical treatment.

The plaintiff described a period of pain, abdominal distension and deteriorating health between 8 and 12 November 2004. She also described significant distress at the failure by the defendant and hospital staff to react to her symptoms and worsening physical condition. She described her concern that she would not survive the repair surgery that was undertaken on 12 November 2004. She was concerned for her young sons and husband.

The plaintiff first suffered from the symptoms of bowel obstruction in September 2005. Since then she has suffered 11 such episodes of varying intensity. The symptoms experienced during these episodes included severe abdominal pain and distension and nausea at times leading to vomiting. The episodes lasted from four to 24 hours. She presented to the hospital Casualty Department twice for pain relief and she has had ongoing treatment from her general practitioner. In the 12 month period prior to the hearing the plaintiff suffered episodes of less severe pain lasting a few hours and returning the following day.

The episodes were unpredictable and there was no pattern to them. She suffered three major episodes in 2008 and the worst episode in November 2009. Some of those occurred episodes while the plaintiff was travelling in the United States of America, Nepal and Myanmar.

The plaintiff said that travel had always been a major part of her life and she was determined to continue to travel. She was unable to obtain travel insurance against the risk of a severe episode when out of Australia because her dysfunctional bowel was considered to be a pre-existing condition. She was prepared to continue to travel notwithstanding this risk.

Her major concern was that a severe episode might occur while she was trekking in an area remote from medical facilities. In such circumstances, it would be necessary for helicopter evacuation at a cost of US$3,000 per hour. She claimed that the average cost of helicopter evacuation was $6,000.

The plaintiff said she managed her symptoms by going to bed, taking medication and eating and drinking nothing. If the symptoms continued for longer than 24 hours, she sought medical assistance. She was a vegetarian before the surgery and maintained a good diet with some adjustments. She said that since surgery she had suffered from constipation so that her bowels did not work without the consumption of large quantities of laxatives. She had used a number of different preparations. At the time of hearing she was taking Normacol and Epsom salts.

The plaintiff was questioned about some of the medication for which she claimed to be incurring ongoing expense. She said she took Buscopan, an anti-spasmodic when she suffered an episode of bowel obstruction. She said, however, that it was ineffective as were analgesics in providing pain relief. Another preparation, VSL, was prescribed for bowel health. She said she discontinued the use of this preparation because it was too expensive, costing $125 for a box that lasted about 10 weeks. She agreed that she advised her solicitors that another reason for discontinuing its use was that it was ineffective in dealing with her constipation.

The plaintiff complained of the appearance of her abdomen in two respects. The scars from the laparotomies were of concern. She described them as puckered and wrinkled. I inspected the plaintiff’s scarring and was satisfied that this description was accurate. She was not proposing revisionary surgery because she did not want to have further operations. She also said that her abdomen protruded so that she no longer wore the close fitting garments that she wore with pride prior to the surgery.

The plaintiff said that since surgery sexual intercourse had become uncomfortable.

As a result of the adhesions and episodes of bowel obstruction, Dr Gavanagh advised the plaintiff that she should not have further colonoscopies. This was of particular significance to the plaintiff as her mother died of bowel cancer at the age of 57. Her options for bowel cancer screening were limited to barium enema or CT colonography. Dr Barraclough said colonoscopy was the gold standard for detection of bowel cancer. The alternatives of CT colonography and barium enema were very inaccurate and did not pick up pre-cancerous small polyps.

The plaintiff was concerned to maintain a high level of physical fitness prior to the surgery and agreed that post surgery she recovered this high level of fitness by about September 2005. She did this by swimming up to 3 kilometres and more recently by participating in RPM classes that involved pedalling the wheels of a bicycle at very high revolutions to maintain a targeted heart rate. She said that at the time of the emergency surgery she regretted that she had not achieved some milestones in her life and she resolved on a number of things that she would do if she survived. One of these was to climb a mountain of a height of more than 6,000 metres. She had since achieved this goal.

She continued to trek one to two times a year for three to five weeks at a time.

She worked as a nurse on a casual basis, mostly at Calvary Hospital and mostly on night shifts from 9 pm to 7.30 am. She also worked five times per fortnight at a private hospital on the South Coast. She agreed that, if she wished, she could work as a nurse full time, subject to those occasions on which she suffered from bowel obstructions.

Dr Barraclough confirmed the plaintiff suffered from a number of episodes of partial bowel obstructions and that she required huge amounts of laxatives. He said it was hard to predict the frequency and duration of the attacks of bowel obstruction. He thought she took significant risks when travelling in remote areas of Nepal that were isolated from medical facilities. The risk was that, without medical intervention, an attack could lead to perforation of the bowel, peritonitis and death. He disagreed that the prospect of total bowel obstruction was remote. He said it was eminently possible.

His concern about the plaintiff’s travel to Nepal, he said, had nothing to do with the fistula. His concern was that she was remote from medical assistance in the event of an episode of bowel obstruction and that she was required to travel with very large quantities of laxatives.

Dr Ham said that the episodes suffered by the plaintiff of central colicky abdominal pain, nausea, vomiting, distension and constipation were typical of small bowel obstruction. He said they were most likely the caused by adhesions from her two recent pelvic operations. He said the plaintiff was likely to suffer ongoing episodes and that she was at significant risk of the development of complete small bowel obstruction requiring surgical treatment with accompanying expense and provision for care during recovery periods.

Partial bowel obstructions could settle spontaneously but, if particularly severe, might require medical or even surgical intervention.

Dr Ham was uncertain of the connection between the surgery in November 2004 and the development of the plaintiff’s chronic constipation that occurred at times other than during an episode of bowel obstruction. He said there were other potential causes, such as irritable bowel syndrome and diverticulitis that might have developed independently of the surgery. He agreed that the timing of the development of this condition immediately after the surgery was of significance to the question of the causal connection. He agreed that the use of laxatives by the plaintiff could assist in managing the plaintiff’s condition by ensuring that material moved through the small bowel.

On the basis that the frequency of episodes of partial bowel obstruction appeared to be decreasing, Dr Ham said his estimate that the plaintiff faced a 20% risk of suffering a total bowel obstruction could be reduced. He said, however, that the episodes were random and unpredictable and that the risk remained notwithstanding that there might be lengthy periods between attacks. He said the condition was permanent and lifelong.

Dr Ham discounted the plaintiff’s high level fitness as a means of protecting against episodes of bowel obstruction. He said these episodes were the result of a mechanical problem within the abdomen.

Dr Evans, psychologist, examined and tested the plaintiff in 2008. He noted that she continued to suffer emotional distress arising out of her experiences following surgery in November 2004. These included her fear that she would die and the consequences to her family of such an event, the financial strain of ongoing medical expense, anxiety about trekking trips, the period of total incontinence and the effect on her pride in her appearance.

Dr Evans said his testing revealed no depression or other psychiatric disorder causing significant impairment in function or an abnormal level of distress. However, he said, the plaintiff suffered stress and anxiety as a result of the complications arising from the surgery conducted by the defendant in November 2004. Her sense of well being was seriously compromised. He said these emotions were likely to persist.

ASSESSMENT

General Damages

The plaintiff was to be commended for her ongoing commitment to the maintenance of her physical health. I had no doubt that this commitment assisted in both her physical and psychological recovery of the consequences of the surgery performed by the defendant.

Unfortunately, it did not assist in preventing the development of a permanent condition affecting the functioning of her bowel. This condition presented her with risks that could lead to very serious, even fatal, consequences. She has suffered from constipation from the time of the surgery. While Dr Ham said this condition could have arisen independently, I accepted that it added to the need for the plaintiff to consume large quantities of laxatives to minimise the risk of partial or complete small bowel obstructions.

In addition to this major disability the plaintiff has unsightly abdominal scarring and swelling. Colonoscopy is not available to her. She cannot obtain travel insurance and she faces significant medical risks when undertaking travel outside Australia. Sexual intercourse causes discomfort.

I assessed the plaintiff’s general damages at $140,000, allocating $70,000 to past pain and suffering and $70,000 to the future.

Loss of income earning capacity

The plaintiff made no claim for past income loss but claimed a buffer against future loss. She claimed that her income earning capacity was impaired by the contingency that she would not be able to work during periods of attacks of bowel obstruction.

At the time of the hearing the plaintiff was working by choice in a part time casual capacity. She agreed that she could, if she wished, work full time, subject to the occurrence of episodes of bowel obstruction.

There was no evidence to suggest that to date the plaintiff’s income earning capacity has been affected by this contingency. In the circumstances, I did not accept that this claim was made out and I made no allowance on this head of damage.

Domestic Care

The plaintiff claimed $1,040 for paid assistance with housework for two hours per week for six months. I considered this claim to be reasonable and allowed it.

The plaintiff claimed for the future a need for assistance for three months at five yearly intervals to deal with severe episodes of bowel obstruction. I considered this claim to be reasonable and allowed it in a rounded out sum of $3,500.

Out of pocket expenses

The plaintiff’s claim for past and future out of pocket expenses was extensive.

The defendant objected to the following:

1.The defendant argued that the fee paid to Dr Mulcahy for surgery for the repair of the fistula was excessive because it exceeded by a considerable amount the Medicare allowance for such surgery and the AMA standard fee. Questioned on the amount he charged, Dr Mulcahy said these rates had no bearing on the value of the operation. He said the plaintiff was fully informed financially and she consented to pay his fee.
There was no evidence that the fee charged was contrary to prevailing medical practice and I was not therefore persuaded to disallow it.
2.The defendant objected to the claim for the past and future cost of additional private health insurance taken out by the plaintiff to cover potential additional medical expenses in the event of bowel obstructions.
I considered that private health cover was a matter of personal choice for the plaintiff but also noted that she made no claim to deal with these additional medical expenses in the event of episodes of bowel obstruction that required medical intervention.
I was unsure if this was done on the basis that health insurance would meet these expenses and proposed to allow the parties to address me further on this issue.
3.The defendant challenged the claim for the cancellation of the plaintiff’s holiday on Lord Howe Island in December 2004 because it varied in amount from that initially claimed.
Clarification of the amount claimed therefore is also required.
I did not accept the second part of the defendant’s challenge to this claim, that is, that the plaintiff ought to have taken out travel insurance against the need to cancel the holiday on medical grounds. Insurance is a matter of personal choice. There is a well established principle that a tortfeasor cannot escape the financial consequences of negligence by relying upon the prudence of a plaintiff in entering into insurance arrangements.
4.The plaintiff claimed the cost of an airfare to bring a friend from Perth. There was a discrepancy in the documentation concerning the reason for this expenditure. In one document it was claimed that the friend cared for the plaintiff’s children. In another it was claimed that the friend cared for the plaintiff while her husband and children proceeded with their planned holiday on Lord Howe Island.
This item also required clarification.
5.The plaintiff claimed for the ongoing cost of a preparation referred to as VSL. She said it was recommended by Dr Gavanagh as a preparation to promote bowel health but she ceased using it for two reasons. One was that it was too expensive, the other that it was not particularly effective. Having regard to the evidence that it was not effective, I disallowed this part of the plaintiff’s claim for future medical expenses.

ORDERS

Verdict for the plaintiff.

The proceedings are adjourned to a date to be fixed to deal with outstanding issues relating to out of pocket expenses, costs and interest and to make final orders.

My reasons are published.

I certify that the preceding two hundred and forty-four (244) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Sidis.
Associate: Kayla Martin
Date:

Counsel for the Plaintiff:  D. Hirsch
Solicitor for the Plaintiff:  Bradley Allen Lawyers
Counsel for the Defendant:  F. J. Purnell SC
Solicitor for the Defendant:  Ken Cush and Associates
Date of hearing:  7 – 10 May 2012
Date of judgment:  27 June 2012

[2012] ACTSC 101

June 27, 2012