Dr Ibrahim v Arkell

[1999] NSWCA 95

CITATION:	Dr Ibrahim v Arkell [1999] NSWCA 95 revised - 28/05/99
FILE NUMBER(S):	CA 40038/97
HEARING DATE(S):	09/04/99
JUDGMENT DATE:	27 May 1999
PARTIES :	Doctor N Ibrahim v Catherine Arkell
JUDGMENT OF:	Mason P at 1; Handley JA at 2; Fitzgerald JA at 3

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	3583/94
LOWER COURT JUDICIAL OFFICER:	Stewart ADCJ

COUNSEL:	A J Sullivan QC/L McCallum/ B Zipser (Appellant) J D Hislop QC/J Lonergan (Respondent)
SOLICITORS:	Corrs Chambers Westgarths (Appellant) Hunt & Hunt (Respondent)
CATCHWORDS:	Medical negligence; failure to warn; haemorrhoidectomy performed in possible presence of ulcerative colitis; failure to warn of risk or increased risk of anal stenosis; duty on medical practitioners very high to give effect to policy requirement entitling competent people to make their own decisions about their own lives.
DECISION:	Appeal dismissed

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40038/97
DC 3583/94

MASON P
HANDLEY JA
FITZGERALD JA

Thursday, 27 May 1999

Dr Nabeel IBRAHIM v Catherine ARKELL

JUDGMENT

1   MASON P: I agree with Fitzgerald JA.
2   HANDLEY JA: I agree with Fitzgerald JA.
3   FITZGERALD JA: The appellant, a colo-rectal surgeon, has appealed against a District Court damages verdict in favour of a former patient on whom he performed a radical haemorrhoidectomy on 19 October 1992. The respondent suffered from a post-operative secondary haemorrhage, which was repaired by a suture. Scar tissue which resulted caused anal stenosis. The trial judge held that the respondent was negligent in his performance of the operation at a time when the respondent had active ulcerative colitis which caused the post-operative secondary bleeding, and in his failure to warn the respondent of the risk of anal stenosis. Ulcerative colitis is an infection which causes an increased blood supply to and inflammation of the sigmoid colon and rectum. 4   The respondent first consulted the appellant on 5 August 1992 in relation to her prolapsed haemorrhoids, which were causing her considerable pain. The appellant performed a rectal examination and limited sigmoidoscopy to 15 centimetres on that day, and a colonoscopy on 18 August. A biopsy of tissue removed during the colonoscopy confirmed that the respondent had active ulcerative colitis. The appellant needed a haemorrhoidectomy, but it was at least preferable for the ulcerative colitis to be in remission when the haemorrhoidectomy was performed. 5   The appellant postponed the respondent’s haemorrhoidectomy in order to treat her ulcerative colitis. On 26 August, he prescribed Salazopyrin. The appellant was allergic to that drug, and a dermatologist, Dr Land, later stopped her use of it and prescribed Prednisone for both her dermatitis and her ulcerative colitis. The appellant agreed with that course as an appropriate treatment of the respondent’s conditions. 6   The appellant was aware that, because Prednisone is a corticosteroid, it would not be appropriate to operate on the respondent’s haemorrhoids until a sufficient period had elapsed after she had ceased to take Prednisone. He also knew that Prednisone is not as effective as Salazopyrin in the treatment of ulcerative colitis. 7   The appellant examined the respondent twice more prior to the date of the operation, on 9 and 16 September 1992. The trial judge accepted the respondent’s evidence that there was no internal examination on either of those dates. He preferred her evidence because of her “vivid recollection” of “painful, uncomfortable and undignified procedures”, while the appellant had no independent recollection of the nature of the examinations which he conducted on those occasions. However, having regard to letters which the appellant wrote to the respondent’s general practitioner on the respective dates of the examinations and the absence of any challenge to the appellant’s credibility, his Honour’s finding on this point is open to question. cf State Rail Authority of NSW v Earthline Constructions Pty Ltd (in liq) (1999) 73 ALJR 306. 8 The appellant’s letter to the respondent’s general practitioner on 9 September 1992 stated:

“I reviewed Mrs Arkell today. It would appear that she developed skin rash, almost certainly an allergic reaction to Salazopyrin. She has been seen by a Dermatologist. Salazopyrin has been ceased and she has been commenced on Prednisone. She has no bowel symptoms or rectal bleeding.

Limited sigmoidoscopy showed marked improvement in the rectal mucosa, with only some redness seen. There is no mucous or contact bleeding.

I will leave the management of her steroids with the Dermatologist, which also has been effective in controlling the proctitis. She is keen to have definitive treatment for her haemorrhoids and I feel that the priority should be directed to the proctitis at this stage. However, should definitive treatment be required for her haemorrhoids, haemorrhoidectomy will be required, as she has very large skin component, which has troubled her considerably in the past.

I will be reviewing her in two weeks.”

9   The appellant’s letter to the respondent’s general practitioner on 16 September 1992 Although the appellant’s notes of the examination of 16 September 1992 made no express reference to a proctoscopy, the appellant’s evidence was that the reference to “mucosa” indicated that a proctoscopy had occurred. stated:

“Catherine requested review today. Her haemorrhoids are troubling her again. She has no bowel symptoms.

On examination, external haemorrhoids are considerably inflamed in the three positions. Proctoscopy showed second degree internal haemorrhoids. There is no apparent mucosal changes in the lower rectum. She is keen to have surgery. However I prefer to wait for a couple of weeks, to allow her rectum to settle down completely and to get the steroids off board.

I will make arrangements for haemorrhoidectomy in a few weeks.”

10   The appellant also gave evidence that he conducted another proctoscopy on the respondent on 19 October 1992, immediately prior to the haemorrhoidectomy which he performed that day. The appellant’s notes with respect to the operation record that “rectal mucosa was normal”, which he said indicated that he had carried out a proctoscopy. That was confirmed in his letter on that day to the respondent’s general practitioner, which stated:

“At operation, no mucosal abnormality was seen on proctoscopy.”

11   Once again, there was no obvious basis for the trial judge to reject the accuracy of the appellant’s letter, if he did so. It is not clear whether the trial judge considered a proctoscopy an internal examination, but his Honour held that the appellant did not examine the respondent “internally between 16 September and the date of the operation on 19 October …”. 12   The respondent’s post-operative secondary haemorrhage, which resulted in her anal stenosis, occurred approximately a week after her haemorrhoidectomy. 13   The respondent’s case involved the following propositions:

(a) she had active ulcerative colitis at the time when the appellant performed the haemorrhoidectomy ;
(b) the haemorrhoidectomy should not have been performed while she had active ulcerative colitis;
(c) the appellant failed to detect the respondent’s active ulcerative colitis because he did not carry out adequate examinations and tests;
(d) the appellant failed to warn the respondent of the risk, or increased risk, of anal stenosis because of her ulcerative colitis;
(e) the respondent’s secondary post-operative bleeding which necessitated a suture which resulted in anal stenosis was caused by her ulcerative colitis; and
(f) the respondent would not have had the haemorrhoidectomy on 19 October 1982 if she had been warned of the risk, or increased risk, of anal stenosis.

14   Even if the appellant carried out a sigmoidoscopy on 9 September and proctoscopies on 16 September and 19 October 1982, as stated in his letters of those dates to the respondent’s general practitioner, his Honour found that he was negligent “… in not ensuring microscopically or by biopsy examination that colitis was not present when [the appellant] operated on [the respondent]”. 15   That finding was based on the evidence of Dr Christopher Vickers, a gastroenterologist who assumed responsibility for the respondent’s treatment some time after her haemorrhoidectomy on 19 October 1992. Dr Vickers was the only expert whose evidence favoured the respondent. Despite the fact that Dr Vickers is not a surgeon and last performed a haemorrhoidectomy when he was a junior resident at a hospital about 20 years prior to the trial, the trial judge consistently preferred his evidence to that of two colo-rectal surgeons called by the appellant, Doctors David Glenn and Michael Jensen, whose evidence supported the appellant’s case. The trial judge was unimpressed by Dr Jensen, whom he considered “… lost his objectivity …” and “… almost became an advocate for the [appellant] …”. However, no substantial basis existed for criticism of Dr Glenn. 16   In a pre-trial report dated 25 June 1996, Dr Vickers said that, even if a proctoscopy was conducted prior to commencement of the haemorrhoidectomy, that was insufficient, and a sigmoidoscopy was needed. He confirmed at trial that a sigmoidoscopy was “essential” on the basis that the respondent was, at the time of her operation, using haemorrhoid creams, and “… when you use that cream part of it just slips inside the anal canal and can make the lowest part of the rectum look normal because in a sense you’re having very local treatment and a proctoscopy would see the normality but would miss the inflammation higher up where that local cream has not gone up to”. Later in his evidence, Dr Vickers said that the appellant should have been absolutely satisfied “both macroscopically and microscopically” that there was no sign of active ulcerative colitis prior to operating. His final position was that there should have been a biopsy “a few days before” the haemorrhoidectomy. According to Dr Vickers:

“Although the appearance of the rectum with the naked eye could appear normal, microscopically inflammatory processes could still be going on.”

17   Dr Glenn’s opinion was that a sigmoidoscopy was not required prior to the haemorrhoidectomy which the appellant performed on the respondent, a pre-operative proctoscopy was satisfactory, and it was “highly unlikely” that the respondent’s use of haemorrhoid creams would have affected a proctoscopic examination. Dr Glenn also pointed out that ulcerative colitis is a “chronic disease in most cases” and might never heal, and that a “normal microscopic appearance of the rectum” might never occur in a person who suffered from ulcerative colitis. 18   The appellant criticised the trial judge’s preference for Dr Vickers’ opinions rather than those of the appellant and Doctors Glenn and Jensen on what were said to be essentially surgical issues, especially since Dr Vickers had no relevant experience and his opinions were not supported by material literature. While it was accepted that it is for the Court to decide what would have been done by an ordinary skilled colo-rectal surgeon Rogers v Whitaker (1992) 175 CLR 479., it was submitted that the trial judge should not have accepted the opinion of Dr Vickers on surgical issues when it was contrary to the opinions of reputable colo-rectal surgeons Lowns v Woods (1996) Aust Torts Rep 81-376.. 19 There is force in that argument; for example, in relation to the examinations and tests which the appellant should have conducted prior to performing an haemorrhoidectomy on the respondent and whether it was negligent of him to carry out such an operation on 19 October 1982. However, Dr Vickers’ evidence that the respondent’s ulcerative colitis, which was known to be active on 18 August 1992, would probably have been still active, not in remission, on 19 October 1992 after the treatment which the respondent had received, involving Salzopyrin for a brief period followed by Prednisone, was within his area of special expertise. In Dr Vicker’s opinion, “[i]t takes three months of healing, with such a chronic condition”. Notwithstanding the opinions of the colo-rectal surgeons, the trial judge was entitled to, and did, accept Dr Vicker’s opinion that the respondent’s ulcerative colitis would probably have still been active on 19 October 1982. 20 The trial judge found that it was negligent of the appellant to perform the haemorrhoidectomy while the respondent had active ulcerative colitis. His Honour said:

“In the light of the evidence I am satisfied that [the appellant] was aware of the risk of operating while ulcerative colitis which in other places has been described as inflammatory bowel disease was present. If there were little or no risk, I ask rhetorically why he was resisting the idea of getting involved with invasive treatment. I find this evidence curious in the light of Dr Jensen’s evidence that it is acceptable to operate when this condition is present. If there is little or no risk, why worry about it? Why prescribe Salazopyrin and later Prednisone?

It is clear on the evidence that to proceed under these circumstances in my view presents an unacceptable material risk.”

21   It is unnecessary to discuss that finding, which was again based upon his Honour’s preference for the opinion of Dr Vickers over those of the appellant and the other colo-rectal surgeons. The trial judge was also “… satisfied that the post-operative bleeding occurred because of the inflamed state of the operation site due to the continued presence of ulcerative colitis …”. That was again in accordance with the opinion of Dr Vickers, who said that the respondent was “disposed to an increased risk” of post-operative secondary bleeding because the haemorrhoidectomy was performed when she had active ulcerative colitis, and “… was on steroids which impaired wound healing”. In his report of 25 June 1996, Dr Vickers stated:

“In the presence of [ulcerative colitis] there is increased blood supply and congestion in the rectum area. This can predispose to an increased risk of secondary haemorrhage, particularly at about seven days post-operation when the sutures dissolve and also in the presence of pre-treatment with steroids which can impair wound healing for up to three months.”

22   Once again, the evidence of the surgeons was rejected. According to the appellant, any haemorrhoidectomy carries the risk of heavy post-operative secondary bleeding. The appellant submitted that the procedure used to stop the bleeding - a single suture at the point on the operative site which was bleeding - indicated that it was “a classic bleeding … which occurs … as a result of the ligature applied in the [haemorrhoidectomy] having fallen off, which is just a normal sequence of events”. 23   Dr Glenn and Dr Jensen agreed with the appellant. In his report dated 30 May 1995, Dr Glenn said:

“There is no evidence whatsoever that the performance of a haemorrhoidectomy in the presence of continuing inflammation in the rectum has any increased incidence of bleeding, fibrous tissue scarring or anal stenosis.”

24   In another report dated 23 September 1996, Dr Glenn said:

“A continuing inflammatory process in the rectum would predispose to increased risk of secondary haemorrhage. However in this instance the haemorrhage appears to have come from one area described by Dr Ibrahim as the right posterior haemorrhoidal bed, and this appears to me to have been a straight forward case of secondary surgical haemorrhage, which can occur in the absence of any intercurrent inflammatory process.”

25   In his evidence, Dr Glenn said:

“The nature of the bleeding, which was described as coming from the right posterior haemorrhoidal area, and the fact that it was readily controlled by suture, suggest that the bleeding was coming from individual vessel, was a complication of the surgery and had no relationship to any interference of the blood coagulating mechanism which may have been associated with the ulcerative colitis.”

26   In his evidence Dr Jensen said:

“The post operative bleeding was controlled by suture ligature of a single site indicating post operative haemorrhage from a bleeding vessel which is a common complication of radical haemorrhoidectomy. If indeed the venous bleeding was due to active colitis, haemorrhage would not have been controlled by this suture technique.”

27   Dr Vickers’ opinion that the respondent’s post-operative secondary bleeding was caused by her ulcerative colitis appears to lack a solid foundation. Dr Vickers reasoned that, since the respondent’s ulcerative colitis increased the risk of secondary post-operative bleeding and such bleeding occurred, the ulcerative colitis was the cause of the bleeding. Such reasoning is impermissible unless ulcerative colitis was a more probable cause of the bleeding than another identified possible cause, e.g., a ligature which had fallen off. 28   While the trial judge’s finding that the respondent’s post-operative secondary bleeding was caused by her active ulcerative colitis is therefore open to doubt, his Honour was entitled to accept Dr Vickers’ evidence that active ulcerative colitis increases the risk of secondary post-operative haemorrhage after a haemorrhoidectomy. Indeed, as his Honour pointed out, the appellant was concerned to treat the respondent’s ulcerative colitis before undertaking the operation. 29   The appellant could not remember giving a warning to the respondent that a haemorrhoidectomy involves a risk of anal stenosis but gave evidence that it was his “normal practice” to do so. However, the trial judge accepted the respondent’s evidence was that she was given no warning of any risk associated with her haemorrhoidectomy. His Honour also accepted her evidence that “… if I was told what anal stenosis was and knew then what I know now …”, and had been warned that there was a risk of anal stenosis, she would not have had the haemorrhoidectomy even if her ulcerative colitis was in remission and her operation was carried out by a competent surgeon. Although the respondent’s pleaded allegations appear wide enough to encompass such a case, Statement of Claim, subpara 10(j). the appellant submitted that her argument at trial expressly limited her case to a failure by the appellant to warn her of a risk related to her ulcerative colitis. It is convenient to proceed on that basis. 30   The appellant argued that no warning of a risk of anal stenosis was called for. In his evidence, he said:

“The risk of anal stenosis would not have been any greater than the risk of the stenosis in any other patient, but if it comes to the question of bleeding, there could be, there could be an argument made for a slight increase in the risk.”

That opinion was connected with his view that the respondent did not have active ulcerative colitis when the appellant performed the haemorrhoidectomy. As earlier stated, the trial judge rejected that view, and was entitled to do so.

31   The appellant acknowledged that he did not give any warning to the respondent of any increased risk related to her ulcerative colitis. The trial judge found that, had he done so, she would not have had the haemorrhoidectomy which the appellant performed on 19 October 1982. The respondent’s bleeding obviously was a direct consequence of the haemorrhoidectomy, and there was no evidence to indicate that post-operative secondary haemorrhage was a probable consequence of any haemorrhoidectomy performed on the respondent, whenever the operation was performed. 32   According to the appellant, the following is the question to be asked and it must be answered in the negative:

“Where a doctor has satisfied himself that a particular condition is not present, has made a diagnosis that the ulcerative colitis was in remission, does he have a duty to warn, to say effectively look, I don’t believe you’ve got ulcerative colitis but I might be wrong about that, and if you have got ulcerative colitis, contrary to my own views, then these are the complications which could occur?”

33   However, that is plainly incorrect, at least where the doctor has misdiagnosed the patient’s condition, and the circumstances giving rise to the increased risk are present. Rogers v Whittaker (1992) 175 CLR 479; Chappel v Hart (1998) 72 ALJR 1344 This is an area of the law in which the duty on a medical practitioner is very high to give effect to the policy requirement entitling a competent person to make his or her own decisions about his or her life. Under circumstances such as those proved in this case medical practitioners must provide patients with all the information needed to make informed medical decisions about their treatment. Rogers v Whittaker (1992) 175 CLR 479; Chappel v Hart (1998) 72 ALJR 1344. The appellant did not do so and the respondent’s anal stenosis resulted. 34 That is sufficient to make the appellant liable to the respondent. Accordingly, the appeal should be dismissed, with costs.