Fischer v Brown
[2021] VCC 104
•22 January 2021
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Medical List
Case No. CI-19-01350
| VICKI FISCHER | Plaintiff |
| v | |
| TIMOTHY BROWN | Defendant |
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JUDGE: | HIS HONOUR JUDGE PILLAY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 November 2020 | |
DATE OF JUDGMENT: | 22 January 2021 | |
CASE MAY BE CITED AS: | Fischer v Brown | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 104 | |
REASONS FOR JUDGMENT
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Subject: MEDICAL NEGLIGENCE
Catchwords: Factual dispute – necrosis of nipple areola complex – venous congestion – causation – whether evidence reliable and consistent – bilateral breast reduction – Whether there was a reversable cause for venous congestion – Whether medical practitioner acted reasonably – Whether medical practitioner acted within standard of care – clinical judgment
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | P Lamb | Monaco Solicitors Pty Ltd |
| For the Defendant | B Jellis | Avant Law Pty Ltd |
HIS HONOUR:
1 Ms Vicki Fischer had a revision bilateral breast reduction performed by her treating plastic surgeon, Mr Timothy Brown, on 7 July 2016. She primarily alleges that he negligently failed to recognise and treat the venous congestion that arose in her right nipple after the surgery. As a result, she alleges her right nipple areola complex (“NAC”) died and she has had to endure numerous corrective surgeries as a result.
2 The central question in the case is what caused the NAC to die? There are several possible answers:
· that it was from venous congestion which was present from the time of surgery;
· that it was an accepted risk from the surgery;
· that it was caused by an event unrelated to the surgery, such as smoking or a hot bath.
3 Ms Fischer’s claim can only succeed if she proves that Mr Brown’s observations of her were incorrect on the first post-operative day, 8 July 2016, then on 9 July 2016,[1] 12 July 2016[2] and 19 July 2016[3] when he saw her again for review. Of particular importance is the last consultation on 19 July 2016. At this time Mr Brown found the NAC was alive and improving.[4] Eight days later Ms Fischer reported that after a “sparrow’s bath”[5] the NAC turned black, hard and leathery over the course of a few hours.[6] It was dead. If the NAC was as Mr Brown reported it in his notes on 19 July 2016, then the cause of the NAC death was, on balance, most likely due to an event unrelated to the surgery.
[1]Court Book (“CB”) 385
[2]CB 386
[3]CB 387
[4]CB 387
[5]Transcript (“T”)97, Line (“L”)1
[6]T98 – T99. See also T122, L19
4 The Plaintiff’s claim fails for 2 reasons. Firstly, the evidence of Mr Brown must be preferred to that of Ms Fischer given its consistency with the other lay and documentary evidence in the case. In coming to this conclusion, I find that the evidence of Ms Fischer is unreliable and inconsistent. Secondly, on the basis of the symptoms that I find Ms Fischer presented with post operatively, the majority of the expert medico legal opinions find that Mr Brown acted reasonably. This must be accepted.
5 In dealing with Ms Fischer’s claim I will first address why Mr Brown’s evidence must be accepted as to the true state of Ms Fischer’s clinical presentation. I will set out the inconsistencies of Ms Fisher’s evidence which demonstrate why her evidence cannot be relied upon. Having made findings about the clinical state of Ms Fischer’s right NAC in the post-operative period, I will then come to consider the expert medico legal opinion brought to bear in this case. The factual findings impact critically on that expert evidence such that it can only be dealt with after the first stage of the judgment.
Background
6 Ms Fischer was born on 30 September 1968. She worked various jobs as a swim instructor, interior decorator and in administrative roles with her husband’s business. She was married to her husband Edward in 1993. They have 2 children born in 1996 and 1998. Both Edward and her son Rourke gave evidence in this case. As at 2016 she was a fit person who had a range of athletic pursuits. She had had an initial breast-reduction surgery in 2008. This was surgery performed by Mr Mutimer in Melbourne as an elective procedure. The surgical technique used was known as a “B-Pattern short-scar”.[7] She was also a smoker of many years, averaging fifteen to twenty cigarettes per day.[8]
[7]T578, L11
[8]T79, L19
7 Mr Brown is a qualified plastic surgeon. He completed his qualifying medical degrees at the University of Cambridge[9] and then a Masters of Surgery in 1995 at the same institution.[10] He did six years of plastics specialist training.[11] He has had over twenty years in private practice and during the time from 1995 to 2016, had conducted about fifteen hundred breast-reduction surgeries, which included revision procedures.[12] During that time he gave evidence of having seen patients with dead nipples on about ten occasions.[13]
[9]T618, L22
[10]T619, L8
[11]T619, L11
[12]T705, L12
[13]T768, L18
The Initial Consultation on 16 June 2016
8 In 2016, Ms Fischer decided to explore the possibility of revision bilateral breast surgery. She then came under the care of Mr Brown, with an initial consultation on 16 June 2016.
9 The circumstances and the content of the consultation on this date are disputed, specifically the reasons discussed between Mr Brown and Ms Fischer for the surgery and the advice that Mr Brown gave about smoking. The dispute over the content of this initial consultation is important because it illuminates the consistency or otherwise of each of the witnesses evidence and hence its overall acceptance.
10 It is useful to set out the notes of the consultation on this date. They assume importance because not only do they detail the scope of the matters discussed they also inform why Mr Brown’s evidence is to be preferred to Ms Fischer’s evidence.
(i) Reasons for surgery
11 Ms Fischer alleges that she saw Mr Brown for what she described as a cosmetic procedure. However, he recalled that there was also a functional component to her problems: that of her bra straps cutting into her shoulders and pulling on her neck due to her breast size. He recalled that this was causing her a degree of neck and shoulder pain.[14] Ms Fischer denied this was the reason for her consultation,[15] however I find it was undoubtedly in part for these functional reasons. The Specialist Eligibility Form[16] clearly identifies neck and shoulder pain as a reason for the surgery. It is signed by Ms Fischer. This is one example of the inconsistency in Ms Fischer’s evidence. There are others which I will come to which have the compounding result of me being unable to rely on her evidence.
(ii) Advice as to smoking
[14]T628, L2. See also CB 384
[15]T145, L27
[16]CB 380
12 Further, although Ms Fischer had little recollection of the information that passed between her and Mr Brown, she was adamant that Mr Brown said to her that:
(i) smoking increased the risks of the surgery,
(ii) he had been a smoker and knew how hard it was to give up;
(iii) that she should try to give up but at least get her smoking down to four to five cigarettes a day;[17]
(iv) she should not smoke after surgery for six weeks.
[17]T79, L24
13 Mr Brown admitted to part (i) and (iv) above. As to (ii), he admitted, while he could not specifically recall, that he most probably told Ms Fischer he had been a smoker in the past and knew how hard it was to give up. However he gave evidence that this fact was made known to Ms Fischer to allow him to build rapport with her so as to drive home the message that she needed to stop smoking at least two to three weeks before surgery and four to six weeks post-surgery.[18] He categorically denied (iii); that he told Ms Fischer to reduce her smoking to four to five cigarettes per day prior to surgery. I accept Mr Brown’s evidence, as after having exhausted his memory he refreshed it from his notes.[19] The notes are consistent with the evidence he gave in Court before his memory was refreshed. He gave evidence that he completed these notes while sitting next to the patient on a couch.[20] He explained he did this so the patient could see and better understand the concepts he was explaining. Ms Fischer said she had no memory of this or being shown the page of notes.[21] Mr Brown’s version seems likely given the notes are taken and drawn contemporaneously.[22] They are detailed and extensive.
[18]T776, L30
[19]CB 381
[20]T624, L16
[21]T142, L25
[22]CB 381
14 There is no reason for an experienced surgeon to draw the arrow from smoking to the nipple for example, save as Mr Brown explained, that it was to show the patient the impact of smoking. Similarly, the timelines on the notes are of no use to a surgeon. But they are of great use to a patient trying to understand the process about to be embarked upon. This reinforces the proposition that Mr Brown went through each component of the page with Ms Fischer in a thorough and careful way. The fact she has no memory of this component of such a vital consultation to her case adds to my finding that her evidence is largely unreliable.
15 Ms Fischer’s evidence was that Mr Brown told her to reduce her cigarette consumption to four to five per day.[23] This is unlikely and I do not accept it. This is because Mr Brown denied it, first.[24] Secondly, it was contradicted by the pamphlet Mr Brown gave her.[25] No expert in this case gave evidence that a reduction to four to five cigarettes per day was appropriate advice, which lends support to Mr Brown’s own evidence. Further the fact that Mr Brown’s notes had stars around “smoking” and he had noted this risk by drawing an arrow directly to the nipple suggests he was acutely aware of the risks. Given this, he is unlikely to have given advice that four to five cigarettes per day was permissible, rather than that in the literature he handed out. This is unlikely I find. It is even more unlikely because in the consent form he gave Ms Fischer to take away, the specific risk of smoking “before and after surgery” as increasing the risk of symptoms is noted.[26] It is implausible that Mr Brown would have this specific advice in his consent form and then orally give the advice alleged which runs directly contrary to it. This is also an area where Ms Fischer’s evidence was contradictory. Having given evidence that this is the advice she had been given by her surgeon, she then stated that she actually ceased smoking days prior to the surgery.[27] She made it clear that she had simply skimmed the papers she had been given by Mr Brown, being the consent forms and the Australian Society of Plastic Surgeons Breast Lift and Breast Reduction pamphlet.[28] In that setting, why she took it upon herself to cease smoking completely is entirely unclear and inconsistent with advice that she says she had been given. It is a further inconsistency in her evidence that leads me to not accept it. Such inconsistency is also shown when regard is had to her subsequent treating surgeon Mr Ashton’s records. He saw Ms Fischer in 2017 and wrote a letter to her treating doctor, Dr Yue.[29] In that letter he noted:
“Vicky is a high risk patient who was smoking at the time of her surgery with Mr Brown, only stopping in the immediate post operative period.” [emphasis added]
[23]T79, L24
[24]T777, L10
[25]CB 419 – 426. See also T623, L5
[26]CB 363
[27]CB 413. See also T158, L25, at T156, L1, Ms Fischer implies she stopped smoking days prior to surgery. See also T149, L18, where Ms Fischer gave evidence that it was about 4 days prior to surgery that she ceased smoking. Mr Fischer’s evidence was consistent with this at T242, L21.
[28]T151, L8
[29]CB 414
16 This is important, because at that time Mr Ashton had had no communication with Mr Brown and so the history just set out must have come from Ms Fischer. In cross-examination Ms Fischer denied this history[30] but it is a significant inconsistency from, at that stage, the independent treating specialist Mr Ashton.
[30]T157, L12
17 To summarise those findings, I find Ms Fischer went to Mr Brown for both cosmetic and functional reasons to do with her breasts, neck and shoulders. His clinical view was that she needed a revision bilateral breast reduction. He warned her appropriately of the risks posed by smoking, specifically that it may impact on the viability of the NAC. He told her to stop smoking at least two to three weeks prior to surgery and for 6 weeks afterward He otherwise appropriately obtained her consent to undergo the procedure, with material which she took away, signed and consequently returned to his rooms. I further find that after the consultation on 16 June 2016, Ms Fischer continued to smoke in contradiction to the instructions she had been given by Mr Brown. She did so until shortly before surgery.
18 Part of Ms Fischer’s case is that she should have been instructed not to smoke for 6 weeks prior to surgery and further that the surgery should not have been performed if this instruction was not complied with. This is based on Professor Ashton’s opinion.[31] Mr Archer did not share this view,[32] opining that the consenting process was adequate, as was the decision to proceed to surgery. Neither did Mr Farrow or Mr Carlisle. Most importantly the Australian Society of Plastic Surgeons pamphlet notes specifically that a patient ought “….stop smoking at least 2 weeks before surgery”.[33] I find that Professor Ashton’s opinion on the point an outlier as to what constitutes reasonable medical practice prior to proceeding to surgery on Ms Fischer. I do not accept it and prefer the opinion of Mr Carlisle and Mr Farrow. It follows that there was no breach by Mr Brown occasioned by the advice he gave to Ms Fischer or the timing of the surgery.
[31]CB 69
[32]CB 87
[33]CB 424
The surgery on 7 July 2016 and nursing care that day
19 Ms Fischer was admitted to Beleura Private Hospital (“Beleura”) on 7 July 2016. She had surgery performed by Mr Brown being a bilateral breast reduction using the central mound technique. The parties were divided on a series of events which occurred thereafter relating to post-operative care. The factual resolution of these matters largely determines the case in favour of Mr Brown. Remaining with the first reason to prefer Mr Brown’s evidence, that of its consistency, I turn to the date of the surgery. Mr Brown had been operating one to two times per fortnight for some eight to ten years prior to 2016 at Beleura.[34] He was for the immediate years prior to 2016 accompanied by his assistant nurse, Tracy Murphy. She worked not only at this rooms, but accompanied him to his theatre lists and immediate post-surgical rounds.[35] She gave evidence that she also assisted with one to two training sessions per year that she and Mr Brown gave to staff at Beleura as to their surgical and post-surgical expectations.[36] Relevantly the post-surgical instructions were for review every thirty minutes for the first four hours, then one-hourly review for the next four hours and then four-hourly review. At each of these times, in bilateral breast reduction, the nurse should chart basic observations and examine the breast and nipple areola complex. To this end Nurse Murphy gave evidence of the type of dressing used, which was a gauze pad held down by micropore tape that could be lifted as a flap.[37] This evidence was largely consistent with Mr Brown’s evidence.[38] It was also largely consistent with the evidence given by the Beleura Nurse Unit Manager (“NUM”) on duty at the time, NUM Mulholland.[39] The hospital records show routine recovery checks from the end of surgery performed on Ms Fischer at about 11.20am to 12.55pm on 7 July 2016.[40] Then on the ward,[41] there are basic observations for blood pressure, heart rate, temperature and pain. However, there are no notes whatsoever for the breast examination occurring. On one view, as NUM Mulholland opined, that is because there was nothing significant to find.[42] On the other hand this was reflective of no appropriate breast examination being conducted. That matter need not be considered further because causally it has no significance if proper breast examinations were done overnight on 7 July 2016 and into the morning of 8 July 2016. This is because the uncontroverted evidence of Mr Brown and Nurse Murphy was that they conducted an examination of Ms Fischer at about 1.00pm to 2.00pm on 7 July 2016. At that time Mr Brown gave evidence he examined the right breast and NAC and found nothing that required attention. The next morning on 8 July 2016 at sometime around 8.00am to 8.30am, Mr Brown attended Ms Fischer in her room. What happened on this occasion is subject to much dispute, but it means that any failures in nursing care overnight in noting observations and findings regarding the right breast and NAC have no causative effect on the ultimate outcome.
[34]T800, L20
[35]T800, L11
[36]T802, L16-20
[37]T800, L1-7
[38]T633, L7-31
[39]T355, L1-11 and T357, L3-9
[40]CB 455
[41]CB 459
[42]T347, L12
The first post-operative day: 8 July 2016
20 The first post-operative day was 8 July 2016. At that time Mr Brown gave evidence that he attended Ms Fischer on the ward, checked her observation chart and then physically examined each breast.[43] He gave evidence that he had no other patients to review in the hospital that day,[44] and attended specifically to review Ms Fischer’s surgery. He uses this to bolster his argument that he attended with no pressure on his time and specifically with the intention to examine the surgical sites. There is no note of this examination occurring. Mr Brown stated he conducted the examination with a nurse (not Nurse Mulholland, the NUM, and not Nurse Murphy).[45] He gave evidence that he lifted the dressings on each of Ms Fischer’s breasts, touched each breast and visually observed each breast.[46] He found no untoward or asymmetrical swelling. He found adequate capillary return and a degree of bruising of the right NAC.[47] His evidence was that there was a degree of venous congestion that was not normal but was not so severe that anything other than watching and waiting needed to occur.[48]
[43]T639, L1 – T641, L10
[44]T638, L1
[45]T639, L2 - 6
[46]T641, L2 - 10
[47]T641, L12
[48]T702, L24
21 Ms Fischer’s evidence was to the effect that Mr Brown came to the room and stood about 1.5 metres away at all times.[49] While he checked her observations chart, he did not lift the dressing nor see her breasts.[50] He did not palpate the breasts or examine up close the NAC. She gave evidence that she was in significant pain at this time and that she told both Mr Brown and the attending nurse this.[51] Thereafter Mr Brown left with instructions to the nurse to take the dressings down, clean the area, and to apply Steri-Strips.[52] Ms Fischer was then to be discharged.
[49]T85, L7
[50]T85, L13 - 17
[51]T84, L21
[52]CB 458
22 After Mr Brown left, Ms Fischer gave evidence that the nurse attending her took the dressings down and noticed the right nipple was “dark ? bruising”.[53] The nursing chart records this concern.
[53]CB 458
23 As a result, that attending nurse went to speak to NUM Mulholland, who examined the right NAC and then called Mr Brown. Mr Brown’s evidence was that this call occurred a very short time after he had left the consultation with Ms Fischer and he was in a nearby Bunnings carpark.[54] NUM Mulholland gave evidence that she could not recall Ms Fischer, nor could she recall her phone call with Mr Brown. She did make a note in the hospital records however. That note reads:
“8.7.16 0945:- Mr Brown notified of R) nipple reduced capillary return and bruising ++. NFO Happy for pt to discharge as planned.”[55] (NFO: No Further Orders)
[54]T642, L5
[55]CB 457
24 Mr Brown had an imperfect recall of the telephone conversation but gave evidence broadly that NUM Mulholland wanted to ensure he knew of the degree of bruising. As to capillary return being an issue, he was uncertain. This is partly because, and all the specialists agreed on this point, that in a situation of venous congestion, the capillary return would be overly brisk not “reduced”. Pathologically this is because in venous congestion there is a poor outflow of venous blood: it tends to pool due to insufficient drainage. This means the site of the congestion seems to be more engorged with oxygen depleted, darker blood. Thus, the area appears darker or bruised. As a result when pressure is applied to the area that is congested the blood very quickly responds or returns. Thus, here at the NAC site, which Mr Brown considered venously congested, the capillary return would be expected to have been brisker than usual rather than reduced. In contrast in a situation of arterial insufficiency, or slow inflow of oxygenated blood, there would be a slow or reduced capillary return.
25 In any event there need be no definitive finding on this point of whether NUM Mulholland raised the capillary return issue, because the conversation raised the issue of “bruising ++”[56] which necessarily implied blood-flow issues because the area was bruised-looking, implying venous problems. This was, on Mr Brown’s evidence, something he had very recently seen and diagnosed after examination of Ms Fischer’s breasts . This meant the call, even on NUM Mulholland’s version, imparted no information that changed his diagnosis and treatment plan, which was that there was an element of venous congestion that did not warrant intervention.
[56]CB 457
26 Turning back to an assessment of what had occurred during the consultation of the morning of 8 July 2016. There are several other pieces of evidence which are consistent with Mr Brown’s version of events that make his version much more acceptable than that proffered by Ms Fischer. First Ms Fischer gave evidence that she was in “significant pain” at the time of this consultation of the morning of 8 July 2016. This is directly contradicted by the fact that her pain score had peaked at 4/10 (with 10 being the worst and 0 being the least) at 19:45 hours on 7 July 2016.[57] Professor Ashton’s view was that normal pain post-revision bilateral breast reduction was about 2/10.[58] Here, the observation chart shows that at 23:00 on 7 July 2016 the pain score was in fact 2/10. On 8 July 2016 at 06:20 hours no pain score seems recorded and then the last pain score recorded for some time between 06:20 and the time of discharge at 10:00 hours is 0/10.[59] The patient plan completed at about the time of Mr Brown’s consultation also records that Ms Fischer was “comfortable” when noting pain management, stating that she was taking Panadol & Brufen, not Endone.[60] This seems substantial supportive evidence that the pain was well in the normal range proffered by Professor Ashton at the time Mr Brown saw Ms Fischer. However, Ms Fischer pointed to the fact that at about 06:30 hours she had been given 5 milligrams of Endone[61] and this may have suppressed the pain so that she did not record it when speaking to the nurse who then subsequently wrote 0/10. Against this however is that she said at the time of discharge her son, Rourke, who had come to pick her up saw her hunched over from this significant pain. He gave evidence consistent with this.[62] On Ms Fischer’s case then, she was in significant pain after 06:20 hours, she took Endone which resulted in an abatement of pain such that while she complained of pain to Mr Brown at around 08:30 hours, it still resulted in her advising staff of pain levels of 0/10 just prior to discharge. Then, after Mr Brown had finished his consultation with her the pain increased very significantly, so that at about 10:00 hours, her son could observe her hunched over in pain. NUM Mulholland made no recording of pain being a concern at 09:45 hours when she called Mr Brown. The absence of a recording of pain here is significant. NUM Mulholland was a nurse of over twenty years’ experience. She gave evidence in a clear and direct manner. She was an impressive witness. She gave evidence that she included matters in her notes which were of clinical significance. A report of significant pain by a patient would be a sign of clinical significance.[63] She did not write down non clinically significant findings. Here, that is very important because having been alerted of a concern by a ward nurse, she had physically come to see Ms Fischer. She had done a physical examination to test capillary return and visual observation to determine bruising which she noted as “bruising ++”. Yet her note contains nothing about pain, either that it was abnormal, fluctuating or asymmetrical. Neither does it say anything about swelling. Given that NUM Mulholland was going to call the surgeon and inform him of nursing concerns about his patient, it could be expected she would tell him about all clinically significant factors to drive home her concern so the surgeon could appreciate the true picture and understand that it was not a spurious call. It is to be expected an experienced NUM would relay all that relevant information so a surgeon would be properly informed. The fact that her note does not record anything to do with pain or swelling suggests she did not find these clinical signs. It tells strongly against Ms Fischer’s version of events. It correlates however with Mr Brown’s evidence and the nursing record. I consider this evidence in combination with Mr Brown’s evidence strongly supports my finding that the events of the morning of 8 July 2016 were as Mr Brown gave evidence.
[57]CB 459
[58]T 480, L24. See also T525, L15
[59]CB 459
[60]CB 458
[61]CB 446
[62]T272, L17
[63]T345, L27
27 To summarise my findings as to the consultation on 8 July 2016 I find that Mr Brown attended Ms Fischer at around 08:30 hours with a nurse. He physically examined both breasts by lifting the flap dressing. He palpated the breasts and the NAC and made visual inspection. He found there was no clinically significant alteration in sensation, pain or swelling. He considered the right NAC had a degree of venous congestion evident by bruising. He considered as part of his clinical judgement that this was best managed by a “wait and see” approach. He had considered the issue of venous outflow. He considered the issues raised by NUM Mulholland, but as he had recently seen Ms Fischer, he did not consider the information sufficiently different to that which he had so as to return to see Ms Fischer or change his orders for discharge.
The Consultations on 9 July, 12 July, 19 July and 28 July 2016
28 Ms Fischer gave evidence that following discharge she became so concerned by the state of the right breast she took some photographs of it that night. She felt ongoing pain and swelling such that the first thing the next morning she telephoned Mr Brown’s rooms and was called in. Both Mr Brown and Nurse Murphy saw her. For ease I have set out the notes of consultation for the 9th, 12th and 19th of July 2016:
CONSULTATION RECORD: Vicki Fischer
Date: Saturday, 09/07/2016 7:17 PM
Presenting Problem: Consultation
Provider: Staff
History: Vicki Fisher came in to see me today following Breast reduction surgery. The nipple areola complex is very bruised and the epithelium has shed. Underneath it is bleeding, and a midline blister. She has a blister over her sternum which op site was painful [Originally hand written]. I have cleaned up the nipple areola complex and cleaned up the dead epithelium. Its bleeding well underneath and chlorsig and bactigras applied [Originally hand written]. I have told Vicki that she must not smoke under any circumstances or she will loose [sic] the nipple. I have arranged to see her on Tuesday or earlier if necessary.[64]
CONSULTATION RECORD: Vicki Fischer
Date: Tuesday, 12/07/2016 10:31 AM
Presenting Problem: Consultation
Provider: Staff
History: Vicki is looking a lot better, the nipple is pink and sensate. We have given her some chlorsig and arranged to see her next week.[65]
[64]CB 385 – The time recorded of 7:17 PM refers to the time the note was typed. Mr Browns evidence was that he dictated clinical notes, they were typed and printed and he corrected them by hand, and signed them, before they went onto the patient file.
[65]CB 386
CONSULTATION RECORD: Vicki Fischer
Date: Tuesday, 19/07/2016 12:45 PM
Presenting Problem: Consultation
Provider: Staff
History: Vicki’s nipple continues to improve and she has developed new epithelium over it this week. We tested her sensation and it is the same as the other breast. I have reassured her. She will come back and see us in another week.[66]
[66]CB 387
29 At each of these attendances Ms Fischer alleges she complained of significant pain and swelling. She alleges that she had reduced sensation and that the colouration of the NAC remained the same as that shown in the photographs. In contrast Mr Brown gave evidence that his notes accurately recorded the clinical course of the right NAC, which was improving, such that at the consultation of 19 July 2016 it was live and sensate. His case was that if the condition of the right NAC was found to be as stated then the cause of the NAC necrosis found on 28 July most likely has to be a supervening event.
(i) Was Ms Fischer in ongoing pain from 8 July 2016?.
30 Mr Brown gave evidence that there was no report of clinically significant pain between 9 July 2016 and 28 July 2016. His notes are consistent with this evidence.
31 Similarly, Nurse Murphy gave evidence of there being no clinically significant pain.[67] Her notes are consistent with this. She is a nurse, who as of 2016, was of 20 years’ experience. She gave evidence that it was her invariable practice to ask about a patient’s pain at the start of each consultation. She gave evidence that her notes record matters of clinical significance. She considered that a patient report of significant pain would have been a matter of clinical significance.[68] The absence of any note of pain is strong evidence in favour of Mr Brown’s version and tells against a finding that Ms Fischer was in significant pain at any time after 7 July 2016.
[67]T805, L16
[68]T805, L20
32 Ms Fischer gave evidence that she was in pain on the morning of 8 July 2016, which had been alleviated by the administration of Endone (Oxycodone).[69] She then gave evidence about the use of Oxycodone to the effect that thereafter she remained on this strong painkilling medication regularly until after completion of her surgeries under the care of Professor Ashton – well into 2018.[70] However, the hospital records show that Ms Fischer was given one box of twenty tablets of Endone in a routine pack of discharge medications.[71] Up to four could be taken per day; this would have been exhausted within 5-6 days. The way Ms Fischer gave her evidence in chief was such as to leave the Court with the impression that she had been in such significant pain she had needed very strong ongoing analgesia since the time of the surgery on 7 July 2016. However in cross-examination it became apparent that Ms Fischer, outside of the routine discharge box of Endone, had never been prescribed Endone by her treating doctor, or Mr Brown in the period of 7 July 2016 to 28 July 2016.[72] It was a fundamental inconsistency and supports my finding that her evidence as to being in significant pain from 8 July 2016 onwards cannot be accepted.
[69]T131, L18
[70]T115, L10
[71]CB 446
[72]T198, L24
33 Ms Fischer called her husband and son who gave evidence that she remained in consistent pain after the surgery. Rourke Fischer saw his mother immediately upon discharge and gave evidence of her being hunched over and in pain. Edward Fischer saw her that night and gave similar evidence, although in addition, he gave evidence that he could see his wife’s right breast through her top and said that it looked more swollen.[73] I do not accept that evidence and prefer the evidence of Mr Brown, NUM Mulholland and Nurse Murphy. Each of them had the very specific role of attending to Ms Fischer’s concerns. They were acutely interested in the state of the right breast and clinically significant signs to do with her progress. In that setting they were much more attuned to the reporting of pain or the presence of swelling. This attention to Ms Fischer’s medical condition means I prefer their evidence as to the presence of pain or swelling over that of Mr Fischer or Rourke Fischer who were simply making passing lay observations of the condition of Ms Fischer.
[73]T243, L17 - 31
34 In addition Ms Fischer’s two sisters also gave evidence of visiting Ms Fischer over subsequent weeks and noticing the visual signs of pain and of Ms Fischer being in a hunched over position.[74] Given my findings as to Ms Fischer’s pain above, I do not accept that evidence.
(ii) Was Ms Fischer’s right breast swollen from 8 July 2016 onwards?
[74]Donna Barnard at T287, L9. See also Leanne Ingram at T299, L26
35 Coming then to deal with the evidence of Ms Fischer that she had swelling in her right breast after surgery and present from 8 July 2016 onward. This was supported by Edward Fischer, who gave evidence that he noticed the right breast was swollen as set out above. Mr Brown accepted there was some post-surgical swelling but considered it was within the normal range and particularly in comparison to the left breast such swelling was not clinically significant. It is to be noted that Ms Fischer kept her breast covered throughout this period. Her breasts were only ever examined by nursing staff and Mr Brown. The notion that Edward Fischer could see the swelling of the right breast through Ms Fischer’s clothes is unlikely to be correct given the fact that its true outline was surely obscured from view or at least distorted by the clothing. Similarly, NUM Mulholland makes no mention of it as a clinically significant factor and I place great weight on that evidence.
36 This is also supported by Nurse Murphy, who physically palpated the breasts and visually inspected them during this period. She is also a very experienced nurse.. She could not recall any swelling and her contemporaneous notes do not record any swelling. She made the point in evidence that she would have considered it clinically significant if swelling had been present.[75] The absence of any recording tells against a suggestion of swelling. This is similarly supported by Mr Brown’s notes and his evidence. I prefer the evidence of those who physically examined Ms Fischer’s breasts and visually inspected them to those who did not. As such I find there was no abnormal swelling of the right breast at 8 July 2016 or thereafter.
(iii) The circumstances of NAC necrosis
[75]T805, L22. See also T813, L 21
37 Mr Brown recorded the following in relation to Ms Fischer’s attendance on 28 July 2016:
CONSULTATION RECORD: Vicki Fischer
Date: Tuesday, 28/07/2016 10:39 AM
Presenting Problem: Consultation
Provider: Staff
History: Vicki contacted us yesterday afternoon saying that her nipple had gone very hard and leathery. When I saw her today it certainly looked like she had got nipple areola necrosis. I have debrided the top surface but there was something that looked like a nipple the midline. I am not sure if she has just had a bleed within to the tissues or whether it is true full thickness necrosis. It is unusual as she had normal sensation last week. Things were improving significantly. We dressed the wound and applied some dressings to Vicki. She will come back and see us next week. I have explained to her that even in the situation where she does have full nipple areola loss I can re-construct a nipple for her. She also has our contact if she runs into problems over the weekend.[76]
[76]CB 385
38 The circumstances leading to this attendance are in dispute. Ms Fischer alleged that sometime on 27 July 2016 she had a “sparrow’s bath”. This is a bath that comes only to the knees.[77] She said it was a warm bath.[78] She gave evidence that Nurse Murphy had told her that such a bath was acceptable.[79] She denied that warm water ever touched her breasts.
[77]T97 L1
[78]T202 L1
[79]T97 L4
39 Up to this point, she said she had been in constant significant pain since the surgery on 7 July 2016.[80] She gave evidence that the right nipple remained purple throughout her consultations with Mr Brown,[81] and sensation was the same in that it was reduced.[82]
[80]T98 L7
[81]T98 L4
[82]T98 L14
40 After the sparrow’s bath she then had a short nap,[83] but when she woke up she noticed the NAC was browny-black and very leather-like.[84] She then called Nurse Murphy and was booked to come in the next day on 28 July 2016.
[83]T122 L18
[84]T99 L11
41 It was put to Ms Fischer that the sparrow’s bath was an invention.[85]
[85]T203 L1
42 Nurse Murphy’s evidence was that she had never heard the term “sparrow’s bath” before.[86] She denied telling Ms Fischer about taking a sparrow’s bath. She recalled that when Ms Fischer called her on 27 July 2016 to report the change in the right NAC she had mentioned she had had a “hot steamy bath.”[87]
[86]T811 L15
[87]T812 L11
43 I cannot accept the evidence from Ms Fischer on this point and it adds to my finding that her evidence overall was unreliable and unsatisfactory. Her evidence cannot be accepted because it is so contradictory. For example, she gave evidence that on 27 July 2016 she was very cold and that her breasts in particular were cold. She gives this as the reason for having a sparrow’s bath. It is illogical then that in order to get her breasts warm she would have (1) a warm as opposed to hot bath as she gave evidence she did and (2) go into the bath up to her thighs when her concern was to inject warmth into her breasts. There is also the significant fact that Nurse Murphy, who I consider an honest and reliable witness, categorically denied knowing what a sparrow’s bath was in the first place. This is a further reason to prefer the evidence of Nurse Murphy.
(iv) Are the notes of Mr Brown accurate?
44 Overall, I accept the notes of Mr Brown are an accurate recounting of the clinically significant findings, and accurately reflect the state of the right NAC at all relevant times. This finding is made for a number of reasons. First, they are consistent with Mr Brown’s evidence in Court, before his memory was refreshed. Second, they are the contemporaneous recording of a specialist surgeon made with the aim of accurately charting the clinical progress of a patient. Third, they are largely consistent with the evidence of Nurse Murphy who attended each of the consultations. Fourth they are consistent with contemporaneous notes taken by Nurse Murphy. Fifth they correlate with the relevant medical instrument testing. Here on 19 July 2016 Mr Brown noted that sensation to each breast was tested and was normal and equal.[88] When regard is had to Nurse Murphy’s notes for that consultation,[89] she records testing with the Semmes-Weinstein Probe as “good sensation tested 0.4”. This is a more impartial way to test than a simple touch and response from the patient.[90] This overall consistency between Mr Brown, Nurse Murphy and the testing equipment strengthens my reason for accepting the fact that the notes accurately record Ms Fischer’s progress and clinical signs. Expert evidence was called by the Plaintiff to dispute the accuracy and sensitivity of the Semmes-Weinstein probe.[91] That debate does not need to be settled because here, Mr Brown and Nurse Murphy gave evidence they used both finger sensation tests in addition to the Semmes-Weinstein probe over this period. Both methods show consistent findings. This reflects the care and thoroughness of both Mr Brown and Nurse Murphy in assessing sensitivity. Further, it demonstrates that they were not relying only on the Semmes-Weinstein probe but used clinical judgment and sought to control the deficiencies of either method. Further, it is to be noted that Mr Brown has a specific interest in breast sensation technique.[92] No other expert expressed such an interest. Mr Brown used the Semmes-Weinstein method as part only of his testing regime, indicating that he was not solely reliant on it.
[88]CB 387
[89]CB 382
[90]T948, L18
[91]Exhibit P20 – The signed note of conference of Dr Archer dated 7 December 2020
[92]T656, L10 - 16
45 For completeness the notes do not describe pain, asymmetrical or otherwise, swelling or altered sensation as alleged by Ms Fischer. Given my acceptance of the notes as an accurate record of the condition of the right breast and NAC it necessarily follows that I reject Ms Fischer’s evidence that runs contrary to them.
46 It was submitted that a letter from Mr Brown’s lawyers (MFI 23) be admitted into evidence showing inconsistency in his oral evidence to the case that had been previously been put by him. [93] I will not admit the document as sought by the Plaintiff. First it was raised very late in the course of the proceedings. It was not produced and cross and examined on. While the Defendant admits that it is a letter from his solicitors his evidence was not sought on the key point the Plaintiff seeks to make on it, namely that it shows inconsistency in Mr Brown’s treatment plan after surgery. In this way there is a substantial unfairness worked upon the Defendant. I would exclude the document pursuant to s 135 of the Evidence Act. Second it appears to me, and I am hampered by the fact that the surrounding correspondence is not produced, that this letter is an attempt to resolve a dispute. Issues of repayment of surgical fees and compensation are raised. I would exclude the document pursuant to s 131 of the Evidence Act. Alternatively I note that even if I were to admit the document and find as the Plaintiff urges that there is an inconsistency in Mr Brown’s evidence as to the arrangement of the follow up appointment, it does not affect my acceptance of Mr Brown’s evidence overall in preference to Ms Fischer’s as to the state of the NAC from 7 July 2016 to 28 July 2016.
[93]T 1007.15 This is a letter from Moray and Agnew Lawyers to the Health Complaints Commissioner dated 25 July 2018 on behalf of the Defendant. It was sought to be tendered in closing by Plaintiff’s Counsel. Objection was taken to the admission of this letter into evidence as (i) it had not been produced during Mr Brown’s evidence and cross examined on and (ii) s. 131 of the Evidence Act 2008 (Vic) (“Evidence Act”). It was agreed given the late stage of the proceedings when the matter was raised that I would deal with the admissibility of the document during my ruling.
47 Turning then to the second reason to accept Mr Brown’s evidence.
48 The second reason for the Plaintiff’s case failing is the expert evidence. The Plaintiff advanced two cases as to why she should have been taken back to theatre on 8 July 2016:
(i) that she had such significant venous congestion demonstrated by:
(a)the very dark colouration of the nipple (as depicted in the photographs taken on 8 July 2016 after discharge);
(b) pain;
(c) swelling;
(ii)that because she was at increased risk due to her past surgery and smoking history the threshold for taking her back to surgery should be low so that even if she only had a modest degree of venous congestion, she should have been returned to theatre.
49 Dealing with the first argument, the Plaintiff called in aid both Professor Ashton and Dr Archer. To some extent the Plaintiff also relied on the expert opinion of Mr Farrow, who was a medico-legal expert commissioned by the Defendant. Critical to all medico-legal opinion in this case was the depiction of the right NAC as shown in photographs taken by Ms Fischer on 8 July 2016 at 18:20 hours. Mr Farrow made the point initially that the diagnosis of Ms Fischer’s condition was best done by the attending physician who could physically examine and visually observe the state of both breasts, a comparison of left and right sides being particularly important. Diagnosis from a photo alone, he opined, is a very difficult task.[94] I agree. Mr Farrow’s changing opinions during the case are instructive in understanding this point. When first briefed in the case he was not given any photographs. On the basis of Mr Brown’s notes, the hospital notes and the letter of instruction, he provided an opinion indicating that the approach taken by Mr Brown was entirely appropriate, that of some venous congestion which essentially resolved over the next twelve days and resulted in a live and sensate nipple by 19 July 2016. However, he was then given the photographs which the Plaintiff provided and showed to her experts. These are shown at exhibit D8.[95] On the basis of these photographs,[96] Mr Farrow formed the view that it showed the right NAC as “dead and dying” on 8 July 2016 such that surgery was mandated.[97] However just prior to the start of the trial Mr Farrow was shown different versions of the same photographs which had been shown to him earlier. It is to be noted that the photographs were the same as those before, but simply with what appears to be different resolutions and not zoomed in. These two photographs, taken at exactly the same time by the same camera, are remarkably different. The colouration is not anywhere near as dark or violent and the level of swelling seems perceptibly less between them. Faced with this, Mr Farrow hewed to his earlier opinion and opined that his view was that Mr Brown had adopted an entirely reasonable course. He made the point even more forcefully during cross-examination that a number of his patients photograph their surgical sites with their phones but this is of only limited use given the lack of appropriate lighting and consistency in angle and resolution.[98] When Mr Archer was similarly faced with the photographs at a different resolution,[99] he admitted in cross-examination that Ms Fischer’s situation on 8 July 2016 was one which called for decision making in the “greyer zone”, one in which there was a need for a clinician to make a judgement call.[100] While he opined that Ms Fischer should have been returned to theatre, he considered this only the “more reasonable option”.[101] He left room for the notion that the course adopted by Mr Brown, supported by Mr Carlisle and Mr Farrow, was a reasonable one. Overall then, the opinion of Prof. Ashton stands alone and I do not accept it. His opinion, that Ms Fischer should have been taken back to theatre, is based on the fact that there was a reversible cause for the venous congestion that Ms Fischer had that was amenable to immediate surgery. He postulated this reversible cause resulted from:
(i) a large haematoma;
(ii) a small haematoma;
(iii) a kinked pedicle or;
(iv) tight sutures.
[94]CB 145
[95]Exhibit D8, at CB 356 - 358
[96]CB 356
[97]CB 146 - And on this basis he supported the position advanced by Professor Ashton and Mr Archer that aggressive exploration was needed on 8 July 2016 to address the issue.
[98]T985, L18 - 23
[99]CB 356
[100]T440, L24 - 31
[101]T440, L25; T441, L27 and T442
50 He called in aid an article which he said set the standard for a reasonable plastic surgeon faced with the situation that Mr Brown was. This was the article tendered as Exhibit P17 by Rancati and Others.[102] Dealing with that article I note that it is not an article based on a meta-analysis or even the result of a particular broad-based study. It appears to be an article from a lead Argentinian author at one institution describing proposed courses of treatment by only 3 specialists. I am completely unclear as to why it would set the standard for reasonable medical practitioners operating in Australia. I do not have regard to it in informing me as to the relevant standard of care to be practised by a specialist plastic surgeon in Melbourne in 2016.
[102]Exhibit P17 - Report from Rancati & Ors, an article titled, ‘Management of the ischemic nipple areola complex after breast reduction’, 18 January 2016
51 Dealing specifically then with each of the causes of the venous congestion postulated by Professor Ashton. All practitioners agree that a large haematoma was unlikely in this case. This was because it would present around the suture line in a visibly obvious way. No practitioner here could see it on the photographs. Certainly, Mr Brown did not notice it. It would cause significant swelling and that would cause pain. Both would increase with time. As I have found against the notion of ongoing pain and swelling, the fact of a large haematoma can be dismissed. In addition, if it was so large as to cause such severe NAC compromise on 8 July then total death of the NAC within five to seven days was, on the expert opinion, likely.[103] That on any view was not the clinical course. It tells against the theory of a large haematoma. Also, and almost definitively at the first debridement procedure carried out by Mr Brown after 28 July 2016, no evidence was found to support the presence of a large haematoma in the tissues.
[103]Dr Archer at T431, L10. See also Mr Carlisle at T874, L12 - 14
52 Second, Professor Ashton postulated that there was a small haematoma. This seemed to rise in Professor Ashton’s theory as the most likely cause of the NAC death as it would not be readily seen or cause great pain and swelling.[104] It would also explain why the right NAC died over a longer period of time and at times led to findings similar to those made by Mr Brown and Nurse Murphy on 9, 12 and 19 July 2016. During the course of the trial and certainly by closing this had become known as the “blotting paper thesis”.[105] This thesis has at its starting point that there was a degree of venous congestion either from a small haematoma, kinked pedicle or tight sutures on 8 July 2016, and being progressive from there. This was said to explain why on 9 July 2016 Mr Brown had noted that the epithelium had shed. The plaintiff then called in aid evidence by Mr Brown[106] that there was a wet, moist look to the skin “like blotting paper’ indicative of damage to the dermis.[107] From there the plaintiff called in aid Mr Brown’s evidence that by the examination on 19 July the right NAC skin had a “white matte” effect,[108] which it was argued was indicative of the death of the dermis. On the Plaintiff’s case through these three consultations Mr Brown had been deluded: he had missed the signs of a progressive worsening of the right NAC, believing that things were improving. This case must be rejected. First it relies on the notion of ongoing worsening symptoms of pain, swelling, discolouration and a lack of sensation. I have found against those symptoms earlier so the factual basis for the blotting paper thesis falls away. Furthermore, when it is examined closely the formulation of the theory is itself misplaced while as Mr Brown did recall the shedding of the epithelium, what is in issue is whether the dermis was alive underneath. Mr Carlisle gave evidence that a red mushy appearance underneath the shed layer of epithelium is actually a sign of a living dermis.[109] The finding as to the features of the area under the shed epithelium was itself described by Mr Brown and he did not agree that it had a mushy consistency in any event.[110] Out of all the medical practitioners he was the only one who observed it. His evidence must be given considerable weight. I accept the dermis did not have this mushy consistency. A further point against this theory is that if by 19 July 2016 the description of a white matte effect was indicative of dead tissue then there are no other signs of NAC death as Mr Carlisle opined there would be – such as liquefaction of the fatty tissue and a smell.[111] Mr Farrow also opined that such death would occur at a much faster pace than Ms Fischer’s course, perhaps five to seven days. The other significant matter is that Mr Brown found there had been re-epithelisation on the NAC by 19 July 2016. In evidence he said this new skin is sometimes shinier than normal skin. While counsel put to him in cross-examination[112] that this new epithelium had a “white matte effect” he confined his answer to simply that he had seen a “more matte appearance, more consistent with, ah, normal skin”.[113] With this evidence set out, it can be seen that Mr Brown was very clear about the re-epithelisation of the right NAC on 19 July 2016. My acceptance of his evidence as to the findings on 19 July 2016 contradict the blotting paper thesis. Finally, I repeat that no evidence consistent with haematoma (large or small) was found at surgery, subsequent to 28 July 2016.
[104]T503, L5 - 9
[105]T516, L6 – T517, L17
[106]T793, L28
[107]T895, L14
[108]T747, L29
[109]T894, 21; T873, L13
[110]T766, L21
[111]T896, L17
[112]T747
[113]T748, L2
53 Third the plaintiff argued that a kinked pedicle could have been the cause of the venous congestion on 8 July 2016. However as both Mr Farrow, Mr Carlisle and Mr Brown pointed out, such a kinked pedicle was unlikely given the central mound technique was used which had no impact on the pedicle supply to the NAC. Further, if the clinical course resulted in the findings of Mr Brown I have accepted on 19 July 2016 then there could have been no clinically significant kinking of the pedicle.
54 Similarly, the notion of clinically tight or impacting sutures cannot be accepted. I note that the sutures were not entered into the parenchyma so disruption of pedicle flow is highly unlikely. If the sutures were so tight as to have a clinically significant effect then the findings on 19 July 2016 could not have been correctly made. As I have found they were, this argument must fail.
55 Given the above, I find that there was no reversible cause for the venous congestion found on 8 July 2016. Consequently I find there was no reason to take the steps alleged, namely taking Ms Fischer back to theatre or beginning chemical leeching at this time.
56 Finally, the actual clinical course that the right NAC went through on Ms Fischer’s version contradicts much of the medical evidence. Her case was that her NAC was in a constant state of pain, discolouration and swelling from 7 July 2016 to the afternoon of 27 July 2016 when she had a sparrow’s bath. Within 2 hours of that time the NAC had turned hard, black and leathery. The expert evidence points away from such a catastrophic change occurring because of any failure of care on 8 July 2016.[114]
[114]See Mr Archer at T466 L8, Mr Carlisle at T898 L1-5 and the evidence of Mr Brown himself at T671 L15
57 Given my findings above as to the state of the right NAC from the date of surgery on 7 July 2016 to 27 July 2016, it follows that the Plaintiff’s arguments that the surgery ought not be performed at all due to Ms Fischer not having ceased smoking 6 weeks prior to surgery fails. Causally this argument was not made out. In any event this was an argument pressed by Professor Ashton only and was not supported by the other medico legal experts. I would not adopt his opinion as to this constituting a breach of duty by Mr Brown.
58 For all the above reasons I will dismiss the Plaintiff’s claim and enter judgment for the Defendant. I will hear the parties on costs.
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