Galloway v Hasn

[2009] NSWDC 349

CITATION:	Galloway v Hasn [2009] NSWDC 349
HEARING DATE(S):	24-27 August 2009
EX TEMPORE JUDGMENT DATE:	28 August 2009
JURISDICTION:	District Court - Civil
JUDGMENT OF:	Sidis DCJ
DECISION:	1) Verdict for the defendant 2) The plaintiff is to pay the defendant’s costs on an Ordinary basis up to and including the 15 October 2007 and on an Indemnity basis thereafter. 3) The Exhibits are Returned
CATCHWORDS:	MEDICAL NEGLIGENCE - Hip replacement surgery resulting in increased leg length discrepancy - Whether the result of the defendant's negligence - Appropriateness of pre and intra-operative procedures - Causation
LEGISLATION CITED:	Civil Liability Act 2002
PARTIES:	Helen Galloway (Plaintiff) Dr B James Hasn (Defendant)
FILE NUMBER(S):	638/06
COUNSEL:	J Sandford (For the Defendant)
SOLICITORS:	Plaintiff Self Represented Tresscox Lawyers (For the Defendant)

JUDGMENT

1 Ms Helen Galloway was diagnosed in adolescence to be suffering from a condition known as protrusio acetabulae or Otto pelvis. This condition was described by Dr Fox, an expert in the proceedings, in the following terms:

Protrusio acetabulae is a condition of the hip in which the femoral head and the acetabulum bulge in or project into the pelvis. The condition is commonly bilateral. Idiopathic protrusio acetabulae is usually present in adolescence and they manifest clinically at any age, at which time degenerative arthritis of the hip develops.

2 He stated that this extract was taken from Steinberg, “The Hip and its Disorders”.

3 The plaintiff was treated by Dr Ostinga and Dr Ghabrial for her left leg deformity and discomfort by sub trochanteric osteotomy and manipulation under anaesthetic. The result of the condition was that the plaintiff underwent a right total hip replacement at the hands of the defendant in October 2004. She claimed an unsatisfactory outcome as a result of negligence by the defendant, causing her unacceptable leg length discrepancy, pain and discomfort. The plaintiff was self represented.

4 By way of background, as early as 1989 when she was 23, the plaintiff was diagnosed by Dr Ostinga with osteoarthritis in the left hip and with degenerative back problems. By 1994 the condition of the plaintiff’s left hip had deteriorated to the point where, notwithstanding her relative youth, a total left hip replacement was considered. At the time the left leg was 1.5 centimetres shorter than the right. The surgery was undertaken on 9 May 1995 by the defendant. Both the defendant and the plaintiff agreed that the outcome of this surgery was highly successful. The plaintiff’s pain and discomfort were relieved and her mobility restored. Extra length was added to the left leg as a result of the surgery. Dr Fox, after examining the X-rays, indicated that one centimetre was added to the left leg.

5 The plaintiff described her life after this surgery as full; she had two children after the surgery and she was able to care for them. She engaged in activity with them and enjoyed happy relationships. Because of her underlying medical condition she was reviewed regularly by the defendant and it was anticipated that a right total hip replacement would ultimately be required. As anticipated, the plaintiff’s pain free life did not continue. In 2001 the defendant recorded complaints of right hip discomfort and the clinical notes of the plaintiff’s general practitioner indicated that she started to complain of pain in the right hip in 2002.

6 In April 2003 the plaintiff was examined by Dr Gray, a locum for the defendant in respect of her complaints of right hip pain. She was treated on that occasion with a steroid injection. Her general practitioner continued to provide injections thereafter. In September 2003 the plaintiff was examined by the defendant and he noted significant complaint of pain and discomfort. By then, the left leg was 1.5 centimetres shorter than the right. It was agreed by the plaintiff and the defendant that the time had come for the right total hip replacement. Surgery was undertaken on 7 October 2004. The plaintiff’s recovery was complicated by cellulitis and on mobilisation with a physiotherapist the plaintiff suffered pain in her hip. She said it did not feel right from that point. She complained that since the time of the surgery she has had ongoing pain in her right leg and hip, her low back and her pelvis that has affected her mobility and restricted her activity and relationships with her children and their father. She claimed the need for domestic assistance as a result of her pain and discomfort. In addition the leg length discrepancy was increased so that the plaintiff was required to wear a built up shoe. This is a requirement that distresses her.

7 The issues can be gleaned from the particulars of negligence. In determining the matter, I am required to apply the law set out in s 5O of the Civil Liability Act 2002 which reads as follows:

(1) a person practising a profession does not incur a liability and negligence arising from the provision of a professional service if it is established that the professional acted in a manner that at the time the service was provided was widely accepted in Australia by peer professional opinion as competent, professional practice.

8 The first of the particulars relied upon by the plaintiff was that the defendant performed a right total hip replacement when the procedure was not clinically indicated.

9 Dr Bornstein, who provided expert evidence on behalf of the plaintiff, took the view that the procedure was not clinically indicated. His opinion was based on information supplied to him by the plaintiff concerning her pre-operative condition, namely that she was unrestricted in her activities of daily life, caring for her two sons, playing sport including rugby and relying on the occasional use of analgesia. This information was contrary to the records of the complaints made by the plaintiff to her general practitioner, to Dr Gray and to the defendant. The complaints recorded in the clinical notes of those doctors were confirmed by the plaintiff in her evidence to the court. It was clear from those notes that the procedure therefore was clinically indicated.

10 The experts called for the defendant, Doctors Fox, Bruce and Drummond also supported the appropriateness of the defendant’s decision to proceed. I find therefore that there was no negligence on the part of the defendant in proceeding with the right total hip replacement in October 2004.

11 The second of the particulars claimed that the defendant failed to investigate whether an alternative method of treatment was more appropriate, given the plaintiff’s young age and activities of daily living prior to surgery. By September 2003, when the decision to proceed with the right hip replacement was made, the plaintiff had been treated conservatively with analgesia, Vioxx, an anti inflammatory medication and steroid injections. She obtained only temporary relief from these conservative treatments. There was no evidence of any additional means by which the plaintiff’s pain could be addressed so as to avoid surgery. The plaintiff agreed in her evidence that she accepted, by September 2003, that her pain levels were such at the point had arrived where surgery was the sole remaining option. This conclusion was also supported by the experts called for the defendant.

12 I find therefore that there was no negligence on the part of the defendant, after the failure of the alternative methods of treatment to relieve the plaintiff’s pain, in proceeding with the total right hip replacement notwithstanding the plaintiff’s relatively young age.

13 The remaining particulars of negligence all addressed the question of the leg length discrepancy that was measured after the surgery for the right hip replacement. Dr Bornstein’s opinion was that the plaintiff was left with unacceptable leg length discrepancy. He assessed the plaintiff’s right leg as 27 millimetres longer than the left.

14 A number of issues were raised in relation to this point. The first was the extent of the leg length discrepancy itself and the manner in which that discrepancy was to be measured. The second was whether it was unacceptable and the third related to whether the defendant took appropriate pre-operative and intra operative precautions to prevent an increase in the leg length discrepancy.

15 As far as the extent of the discrepancy was concerned, Dr Bornstein, as I noted, assessed it at 27 millimetres. His assessment was based upon a scanogram that was undertaken in February 2006. This scanogram was originally reported upon by Dr Long by measuring from the top of the femoral implant to the intercondylar notch on each leg. She measured the distance at 492 millimetres on the right side and 472 millimetres on the left side, leaving a femoral leg length discrepancy of 19.3 millimetres. In addition, and entirely unrelated to any surgery, the right tibia was measured to be four millimetres longer than the left, so that the overall leg length discrepancy was 23.3 millimetres.

16 Dr Bornstein directed Dr Gutman, another radiographer, to take measurements from other positions on the scanogram. Dr Gutman took an average of three of those measurements to arrive at a femoral leg length discrepancy of 27 millimetres and an overall discrepancy of 31 millimetres.

17 Evidence given by Dr Fox cast doubt upon the validity of these measurements. He pointed out that it was not possible to measure from the top of the iliac crest because this point was not shown on the scanogram. He also pointed out that the position of the other points from which measurements were taken vary, depending upon the position of the patient at the time of the scanogram so that they were meaningless. He said it was not standard to measure from the points to which Dr Gutman was directed.

18 Professor Bruce, in his report, offered the same criticism.

19 I was persuaded by this evidence that I should prefer the dimensions originally provided on the scanogram and accept that the leg length discrepancy after the right hip surgery, as demonstrated by those measurements, was 23.3 millimetres, of which four millimetres related to the tibial length discrepancy which was unrelated to the surgery. The total discrepancy therefore to which the surgery could have contributed was 19.3 millimetres.

20 That, however, was not the end of the problem. As already noted, the plaintiff had pre-existing leg length discrepancy at the time of the right hip surgery. This was not referred to by Dr Bornstein in his report. He said that this was irrelevant because it was the overall leg length discrepancy that was significant. Thus, according to Dr Bornstein, to the extent that the defendant was aware of the existing discrepancy, he ought to have taken steps to place the prosthesis so as to eliminate or reduce the discrepancy rather than increase it. Dr Bornstein stated that an acceptable discrepancy, post hip surgery, was up to 12 millimetres.

21 In response, the defendant offered the following. He said that equalising the leg length was not an objective of the surgery that he undertook. He said his objective was to attempt not to increase the leg length discrepancy. The defendant and the experts he called argued that the primary objective of the surgery was to provide pain relief and to obtain a stable hip joint by means of selection and placement of the prosthesis.

22 Dr Bornstein referred to the recognised procedure of templating by a surgeon, in advance of surgery, in order that these aspects could be adequately addressed. Dr Bornstein understood that this had not been undertaken by the defendant prior to the plaintiff’s surgery. He suggested that, had it been done, it would have indicated a need for alternative positioning of the prosthesis so as to avoid the continued leg length discrepancy. The defendant’s evidence, supported by X-ray material to which Dr Fox referred, demonstrated that he did in fact undertake this templating task.

23 Dr Bornstein also stated that intra operative radiology would have assisted the defendant in positioning the prosthesis so as to minimise leg length discrepancy. This proposition was rejected by the defendant, Dr Fox and Professor Bruce. Professor Bruce stated that he had never used intra operative radiology because it would be inaccurate and possibly dangerous in positioning the prosthesis.

24 It was apparent from the expert evidence that placement of the prosthesis was a matter of judgment and a trade off, with the objective of stability taking precedence over that of leg length discrepancy, so that it was not uncommon that hip replacement surgery results in some measure of leg lengthening.

25 A problem with Dr Bornstein’s approach was that it would require, not only that the pre-existing discrepancy not be increased, but that it be reduced. According to the defendant and his experts, correction of the discrepancy of a magnitude of 1.5 centimetres could not be achieved by means of hip replacement surgery, because it would involve the placement of the prosthesis in a fashion that would compromise the stability of the hip joint by loosening the ligaments and tendons and present a threat of damage to the sciatic nerve. The evidence was that to achieve a shortening of the right leg it would have been necessary to undertake a separate surgical procedure in the nature of osteotomy. The defendant said that this was not a routine part of hip surgery but involved cutting the bone below the intra trochanteric line of the femur and excising a fragment of the bone.

26 It was pointed out by the defendant that he never proposed to undertake an osteotomy on the plaintiff’s leg. It was not provided for in the admission form that he signed or in the form of consent to surgery signed by the plaintiff.

27 Both Dr Fox and Professor Bruce expressed opinions that supported the defendant’s assertion that attempting to shorten the right hip to compensate for the leg length discrepancy would have resulted in insignificant instability and unacceptable wear on the prosthesis.

28 In the result, the discrepancy between the plaintiff’s right and left legs was that the right leg was 23.3 millimetres longer than the left. Of this, four millimetres related to the tibial length discrepancy. The result overall, however, was an increase in leg length discrepancy of 8.3 millimetres. This was regarded by Dr Fox and Professor Bruce to be within an acceptable range. Although he did not agree that there was generally a standard of 12 millimetres as suggested by Dr Bornstein, Dr Fox noted that the post surgical increase in leg length discrepancy met that standard.

29 My findings in respect of this aspect of the claim are as follows:

(1) I preferred the measurements of the post surgical leg length discrepancy of Dr Long to those of Dr Gutman.

(2) The evidence did not support the claim that the defendant failed to ensure that the right hip replacement would not result in any unacceptable leg length discrepancy. Although it was not conceded by him, it was apparent that Dr Bornstein’s criticism was made when he was unaware of or overlooked the pre-existing leg length discrepancy.

(3) Dr Bornstein was mistaken in suggesting that there was no pre-operative evaluation or templating. There was clear evidence that this was done and, according to Dr Fox, it was done with skill and care.

(4) The evidence did not support the use of suggested intra operative radiology.

(5) The evidence did not support the requirement for a pre-operative scanogram.

(6) The evidence of Dr Fox, Professor Bruce and Dr Drummond was that the acetabular cup was properly positioned with surgical expertise consistent with that of the defendant’s orthopaedic peers; that he selected a prosthesis appropriate to the plaintiff’s surgery, having regard to the deformity in her hip resulting from protrusio acetabulae and the pre-existing leg length discrepancy.

30 For these reasons I find that there was no negligence on the part of the defendant in performing the right total hip replacement in the fashion that increased the pre-existing leg length discrepancy.

31 Were I not to have reached that conclusion, the plaintiff would have faced the hurdle of causation. The plaintiff challenged the defendant’s statement that it was never his intention in the course of surgery to reduce the leg length discrepancy. She stated forcefully that she believed that the right hip replacement surgery would result in an equalisation of the lengths of her legs. She raised the question in submission of why, if the defendant was able to lengthen her left leg through hip replacement surgery, he was unable to reduce the length of the right leg in the course of the same procedure.

32 She also gave evidence and called evidence of Mr Ham of the defendant’s response in follow up consultations to her complaints of ongoing pain and findings on the X-ray in respect of the leg length discrepancy. She stated that the defendant said something had gone wrong and that he reacted angrily and manhandled his office furniture. She complained that he treated her in an offhand manner, laughing derisively and that he was reluctant to see her. This evidence was denied by the defendant, who acknowledged that he was disappointed that his efforts at avoiding an increase in leg length discrepancy had not been successful and he conceded that he might have exhibited some frustration at the outcome.

33 I concluded from this evidence that there was a miscommunication between the plaintiff and the defendant as to the outcome that could be expected from the right hip replacement surgery. I considered it likely that, had the right hip replacement in fact resulted in relief of the plaintiff’s pain and restoration of her previously active lifestyle, a slight increase in the leg length discrepancy would have been tolerated.

34 These considerations bring into focus the absence of evidence concerning the source of the plaintiff’s pain. The defendant’s records indicated that he commenced investigations as to the source of the pain in order that a diagnosis could be made and an appropriate plan for treatment devised. Doubt was expressed by experts that the leg length discrepancy, of itself, was the cause of her pain. Potential causes put forward were nerve impingement in the hip or osteitis pubis or inflammation of the symphysis pubis.

35 The defendant wished to investigate the possibility of osteitis pubis and he provided the plaintiff with a referral for an X-ray guided injection into the area of the pubis symphysis as a diagnostic step. The plaintiff did not proceed with this treatment. There was no evidence of what treatment or investigation the plaintiff has undertaken since she last consulted the defendant in 2005 as a means of identifying the source of her pain. There was no evidence of the treatment, if any, that might relieve it. In the absence of that evidence I could not conclude that any part of the surgical procedure undertaken by the defendant was responsible for the plaintiff’s ongoing pain.

36 It is normal in these matters, where a plaintiff fails in a claim, to assess damages in the event that a Court of Appeal takes a different approach. With regret, I was not able to undertake that task in these proceedings. The particulars of the claim alleged general damages, loss of income, out of pocket expenses and made claims for assistance with domestic care. The only evidence in respect of damage was that of occupational therapists in respect of the plaintiff’s needs for domestic assistance. There was no medical evidence to support the claims made by the occupational therapist. In the absence of that evidence, it was not possible to determine the medical basis for those claims and whether it was related to the right hip replacement surgery.

37 There was some evidence without objective support from the plaintiff concerning the cost of medication and the cost of the special shoes that she is now required to wear but there was no other evidence on the other aspects of her damages claim.

38 The result, therefore, is that the orders that I make are as follows:

(1) Verdict for the defendant.
(2) The plaintiff is to pay the defendant’s costs on an ordinary basis up to and including 15 October 2007 and on an indemnity basis thereafter.

(3) The exhibits are returned.

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