Hansen v Babich
[2006] WADC 189
•23 NOVEMBER 2006
HANSEN -v- BABICH [2006] WADC 189
| Link to Appeal : | [2008] WASCA 137 |
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WADC 189 | |
| Case No: | CIV:264/2003 | 26-28 APRIL & 26 MAY 2006 | |
| Coram: | HH JACKSON DCJ | 23/11/06 | |
| PERTH | |||
| 51 | Judgment Part: | 1 of 1 | |
| Result: | Claim dismissed | ||
| PDF Version |
| Parties: | VENUS HANSEN PAUL JEROME BABICH |
Catchwords: | Negligence Medical practitioner -Warning Treatment Other practitioners Scarring to back Causation Turns on own facts |
Legislation: | Nil |
Case References: | Nil Dunning v Scheibner, unreported; NSWSC; BC9402391; 15 February 1994 Fisher v Stapley [2005] WASCA 16 Rosenberg v Percival (2001) 205 CLR 434 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
PAUL JEROME BABICH
Defendant
Catchwords:
Negligence - Medical practitioner -Warning - Treatment - Other practitioners - Scarring to back - Causation - Turns on own facts
Legislation:
Nil
Result:
Claim dismissed
(Page 2)
Representation:
Counsel:
Plaintiff : Mr B L Nugawela
Defendant : Mr D Wallace
Solicitors:
Plaintiff : CLP Lawyers
Defendant : Jarman McKenna
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Dunning v Scheibner, unreported; NSWSC; BC9402391; 15 February 1994
Fisher v Stapley [2005] WASCA 16
Rosenberg v Percival (2001) 205 CLR 434
(Page 3)
- HH JACKSON DCJ:
Background
1 The plaintiff seeks damages against a medical practitioner in respect of scarring to her back. She was born in 1973. The medical practitioner was one of a number of general practitioners working in a suburban medical clinic which the plaintiff often attended. There is no doubt that she now has an unsightly large scar on her right upper back or shoulder. The issues of liability and damage came before me at trial. While for the reasons which appear below I do not need to assess damages I simply remark that if liability were established significant damages would follow the cosmetic injury but that it is not of the dramatic and overwhelming nature painted at trial by the plaintiff. The real issues before me are as to whether risk warnings were given, as to the causation of the scarring and the role, if any, of the defendant therein. The onus, of course, is on the plaintiff on the balance of probabilities.
Pleadings
2 The statement of claim recites the following chronology of events:
"3 On or about 6 February 1997 the Plaintiff attended at the Centre and:
3.1 during a consultation with the Plaintiff the Defendant noted a pigmented mole on the Plaintiff's right shoulder blade; and
3.2 on the Defendant's advice, the Plaintiff consented to and contracted with the Defendant for a punch biopsy to be performed.
4 On or about 13 February 1997 the Plaintiff attended at the Centre and the Defendant performed the punch biopsy ('the first procedure').
5 On or about 19 February 1997 the Plaintiff attended at the Centre and the Defendant excised the wound ('the second procedure').
6 On or about 22 April 1997 the Plaintiff attended at the Centre and sought treatment from the Defendant as the wound had become infected.
(Page 4)
- 7 On or about 26 June 1997 the Plaintiff attended at the Centre and sought treatment from another doctor who reviewed/re-excised the site of the wound as it had not properly healed.
8 The Plaintiff in due course recovered from the infection and the wound healed but the Plaintiff has been left with significant scarring and disfigurement.
9 The injury … was caused by the negligence of the Defendant."
Particulars of negligence are then provided:
"The Defendant was negligent in that he:
9.1.1 failed to give any or adequate warning to the Plaintiff as to the risks of infection, scarring and/or disfigurement involved in the first and second procedures;
9.1.2 failed to exercise due care and skill so as to avoid infection being caused by the first and/or second procedures;
9.1.3 failed to provide or take any or adequate prophylactic or preventative measures which could have reasonably minimised the risk of infection;
9.1.4 failed to give any or adequate warning or advice to the Plaintiff as to the risks of stretching the scar.
9.1.5 failed to refer the Plaintiff to a medical practitioner specialising in the first procedure.
9.1.6 failed to warn the Plaintiff of possible need for re-excision of the scar site and/or (consequential) enlargening of the scar.
9.2 Further, had the Defendant given the warnings as particularised in paragraphs 9.1.1, 9.1.4 and 9.1.6 above the Plaintiff would have had the opportunity to make an informed decision regarding the proposed treatment and
- may have not undergone the first and second procedures at all or at the relevant time and may have chosen to make further inquiries or seek advice and/or treatment from a more experienced, skilled and specialised medical practitioner."
3 At trial the particular set out in par 9.1.6 was expressly not pursued.
4 The chronology of events set out in these paragraphs of the statement of claim is not accepted by the defendant as an accurate or complete account of the relevant facts.
5 The plaintiff's claim is then formulated in terms of breach of fiduciary duty, negligence and breach of contract. Injury, loss and damage are formulated as follows:
"14 As a result of the Defendant's negligence and/or breach of fiduciary duty and/or breach of contract as pleaded above the Plaintiff has suffered injuries resulting in pain, discomfort, stress and anxiety, permanent disability, loss and damage. The Plaintiff has further undergone treatment and will in the future require treatment and various medical and other expenses.
14.1 Particulars of Injuries and/or Permanent Disability
14.1.1 Recurring wound infection;
14.1.2 Stretching of the scar tissue;
14.1.3 Acute sensitivity at scar site;
- 14.1.4 Permanent scarring and disfigurement.
15 Particulars of Treatment.
15.1 Review consultations with the medical practitioners;
15.2 Excision of the wound;
15.3 Administering of antibiotics;
15.4 Repeat excision of the wound;
15.5 Administering of alternative antibiotics."
(Page 6)
6 The defendant's essential position is pleaded as follows:
"1. …
1.3 … the Defendant says that the Plaintiff consulted with him and with other doctors at the centre and denies that she was at all material times his patient.
- …
3. …
3.1 Admits that the plaintiff consulted with him at the centre on 6 February 1997;
3.2 During the consultation the Plaintiff complained of itchy eyes, nasal congestion, sore throat and headaches;
3.3 The Defendant carried out a clinical examination which included an examination of the Plaintiff's chest;
3.4 Whilst carrying out the chest examination the Defendant noted the presence of 3 pigmented lesions on the Plaintiff's back;
3.5 The Defendant advised the Plaintiff to ask her partner whether any of the lesions were new or had changed;
3.6 The Defendant warned the Plaintiff of the possibility of malignant melanoma arising from one of the lesions and explained the need to monitor them for changes;
3.7 The defendant measured each of the lesions and recorded their size and offered to perform biopsy of the worst looking lesion in 1 weeks time to determine whether the lesions were malignant or benign;
…
- 4. …
4.1 Admits that the Plaintiff consulted with him at the centre on 13 February 1997;
4.2 The Plaintiff told the Defendant that she was unsure if the lesions on her back had changed or were new and she requested that all 3 be removed.
4.3 The Defendant told the Plaintiff that he did not recommend removal instead he recommended that the lesions be monitored and that a biopsy be taken to determine the nature of the worst looking lesion.
4.4 The Plaintiff rejected the Defendant's advice … and requested the lesions on her back all be removed.
4.5 The Defendant orally warned the Plaintiff of the risks of undergoing removal of the lesions. In particular the Defendant told the Plaintiff that:
4.5.1 infection could occur;
4.5.2 there was a risk of experiencing an allergy to the stitch material or to the local anaesthetic;
4.5.3 following removal of the lesion a scar could develop. The Defendant told the Plaintiff that the appearance of the scar could be unpredictable.
4.5.4 the scar could stretch and the plaintiff was instructed to take care not to stretch the wound and to avoid picking up her children for a period of 3 weeks.
4.6 The Plaintiff gave her verbal consent to proceed and at the consultation on 13 February 1997 the Defendant removed the smallest of the 3 lesions by performing a 4mm punch biopsy.
- 4.7 Prior to carrying out the punch biopsy the Defendant swabbed the plaintiff's skin with antiseptic before injecting a local anaesthetic. The nurse who assisted him opened up a sterile pack and set out the instruments. Wearing sterile surgical gloves the Defendant re-swabbed the Plaintiff's skin before applying a sterile drape. After ensuring that the anaesthetic was effective the Defendant then carried out punch biopsy.
4.8 Following punch biopsy the Defendant inserted a single stitch, swabbed the skin with antiseptic and covered the wound with a sterile dressing.
4.9 Following the punch biopsy the Defendant advised the Plaintiff to attend for review if she experienced any redness and swelling or pain;
- 5. …
5.1 Admits that the Plaintiff consulted with him at the centre on 19 February 1997;
5.2 At the consultation the Defendant removed 2 further pigmented lesions from the Plaintiff. One lesion was located on the Plaintiff's right shoulder, the other lesion was on her left shoulder.
5.3 Prior to removing the lesions the Defendant repeated the risks associated with removal. In particular the Defendant told the Plaintiff:
5.3.1 infection could occur,
5.3.2 there was a risk of experiencing an allergy to the stitch material or to the local anaesthetic;
5.3.3 following removal of the lesion a scar could develop. The Defendant told the Plaintiff that the appearance of the scar could be unpredictable;
- 5.3.4 the scar could stretch and the Plaintiff was instructed to take care not to stretch the wound and to avoid picking up her children for a period of 3 weeks.
- 5.4 Prior to removing each lesion the Defendant swabbed the Plaintiff's skin with antiseptic before injecting a local anaesthetic. The nurse who assisted him opened up a sterile pack and set out the instruments. Wearing sterile surgical gloves the Defendant re-swabbed the Plaintiff's skin with antiseptic before applying a sterile drape. After ensuring that the anaesthetic was effective the Defendant removed the lesions;
5.5 The lesion on the left shoulder was removed using an 18x6mm excisions and 5 nylon sutures were inserted to close the skin;
5.6 The lesion on the right shoulder required 24x9mm excision. This wound was closed by inserting 3 dissolving catgut sutures subcutaneously and 6 nylon sutures to close the skin;
5.7 The Defendant then swabbed the plaintiff's shoulders with antiseptic and applied a sterile dressing;
5.8 Following the procedure the Defendant advised the Plaintiff to attend for review if she experienced any redness, swelling or pain.
- 6. The Plaintiff consulted with the Defendant on 22 February 1987. At the consultation the dressing that had been applied by the Defendant on 19 February 1997 was removed. On removal of the dressing the Defendant observed that the wounds appeared to be healing normally and there was no evidence of infection. The Defendant advised the Plaintiff to attend for review in 1 week for removal of some of the stitches.
7. On 25 February 1997 the Plaintiff consulted with another doctor at the centre complaining of itchiness in the area of the wound. The doctor who examined the Plaintiff on
- that day has recorded in the medical record that the wound was not infected.
- 8. The Plaintiff consulted with the Defendant on 28 February 1997. At the consultation the Defendant removed half of the stitches and asked the Plaintiff to re-attend in 7 days time for removal of the remaining stitches.
9. The Plaintiff consulted with the Defendant on 3 March 1997. At this consultation the remaining stitches were removed and the Defendant observed the wound was healing and there was no evidence of infection.
10. It is recorded in the Plaintiff's medical record that she attended the centre and consulted with other doctors on 1 April 1997, 4 April 1997 and on 8 April 1997. There is no record in the Plaintiff's medical record of the Plaintiff complaining of symptoms consistent with infection at any of these consultations.
11. As to paragraph 6 of the Amended Statement of Claim save to admit that it is recorded in the plaintiff's medical record that she attended the centre on 22 April 1997 the Defendant does not admit that the purpose of the consultation was to seek treatment for wound infection. The Defendant says that it is recorded in the Plaintiff's medical record that on 22 April 1997 the Plaintiff was given a prescription of antibiotics.
12. It is recorded in the plaintiff's medical record that the Plaintiff consulted with a number of doctors at the centre on 28 April 1997, 29 April 1997, 30 April 1997, 1 May 1997, 2 May 1997 and 8 May 1997. In relation to each of these consultations there is no record of any complaint by the Plaintiff of symptoms consistent with wound infection or problems due to delayed healing of the wound(s).
13. It is recorded in the Plaintiff's medical record that the Plaintiff consulted with a doctor at the centre on 21 June 1997 and complained about the scar on her back. The doctor who saw the Plaintiff on that day referred her to Dr McCann for advice and treatment in relation to the scar.
(Page 11)
- 14. It is recorded in the Plaintiff's medical record that the Plaintiff consulted with Dr McCann on 24 June 1997. It is further recorded in the Plaintiff's medical record that the Plaintiff requested that Dr McCann carry out scar revision of the scar on her right scapula.
15. Save to admit that the Plaintiff consulted with Dr McCann on 26 June 1997 and to say that it is recorded in the Plaintiff's medical record that on that day he excised a scar on the Plaintiff's right scapula the Defendant denies paragraph 7 of the Amended Statement of Claim.
16. It is recorded in the Plaintiff's medical record that she consulted with a doctor at the centre on 28 June 1997. The doctor who examined the Plaintiff on this day noted that the Plaintiff's wound from excision of the scar on 28 June 1997 appeared inflamed and he gave the Plaintiff a prescription for antibiotics.
17. It is recorded in the Plaintiff's medical record that she re-attended the centre and consulted with another doctor on 30 June 1997. The doctor who saw the Plaintiff that day has recorded in her medical record that the wound was infected and the Plaintiff was given a prescription for a different type of antibiotic.
18. The Plaintiff consulted with the Defendant on 31 August 1997 for advice and treatment in relation to a left ear infection. At this consultation the Defendant observed that the wound infection noted at the consultation on 30 June 1997 had settled. As the Plaintiff had completed the previous course of antibiotics the Defendant gave the Plaintiff a prescription for further antibiotics for treatment of an ear infection, in particular Augmentin Forte.
19. During the period 5 November 1998 to 14 July 1998 the Plaintiff attended the medical centre on numerous occasions and consulted with a variety of doctors for a variety of medical complaints. There is no evidence in the Plaintiff's medical record of ongoing problems with wound infection during this period.
(Page 12)
- 20. On 11 August 1997 the Plaintiff consulted with the Defendant complaining of scar irritation in the region of her right shoulder. The Defendant recommended that the Plaintiff apply a topical ointment. The Plaintiff told the Defendant that she wanted to consult with Dr McCann for advice in relation to re-exercising the scar. The Defendant told the plaintiff that if the scar was re-excised it could result in a worsening of the scar. Following a discussion between the Defendant and Dr McCann the Defendant advised the Plaintiff to apply the topical cream for a period of 6-12 weeks.
21. It is recorded in the Plaintiff's Medical record that she consulted with Dr McCann on 17 November 1998 and it is further recorded that on 19 November 1998 Dr McCann re-excised the scar on the Plaintiff's right shoulder. Prior to carrying out this procedure the Plaintiff was given a prescription for antibiotics, in particular Cephalexin.
22. On 21 November 1998 the Plaintiff consulted with the Defendant. At this consultation the Defendant noted that the wound following scar excision on 19 November 1998 was mildly inflamed and painful. The Defendant redressed the Plaintiff's wound with Friars balsam, Jelonet and gauze and he added Dicloxacin to the antibiotics that had been prescribed by Dr McCann on 19 November 1998.
23. During the period 23 November 1998 to about 25 January 1999 the Plaintiff attended the medical centre on a number of occasions and consulted with a number of different doctors seeking treatment and advice in relation to infection and the wound on her right shoulder."
7 The defendant denies that any scarring and disfigurement has been caused or contributed to by the procedures performed by him on 13 and 19 February 1997.
8 The defendant says the information provided by him to the plaintiff as to the risks of undergoing lesion treatment and the care to be provided in the period following mole removal was consistent with accepted and responsible practice at the time, and that the manner in which he carried
(Page 13)
- out the lesion removal was also consistent with accepted and responsible practice at the time.
9 He says that in removing the lesions from the plaintiff's back he adhered to sterile procedures and all reasonable steps were taken by him to reduce the risk of infection and in particular that he swabbed the plaintiff's skin with antiseptic before injecting local anaesthetic; that all equipment used during the course of the procedures on 13 and 19 February 1997 was sterile; that a sterile drape was applied to the plaintiff prior to removal of the lesions; that he wore sterile gloves throughout the course of the procedures; and that following the procedure he advised the plaintiff to attend for review if she experienced any redness, swelling or pain.
10 In addition to the chronologies recited in the pleadings each party filed with the court a chronology of relevant dates. As it transpired from evidence neither was complete.
11 The defendant accepts that if relevant warnings were found to have been not given negligence would be established.
The plaintiff's evidence
12 The plaintiff said she saw the defendant on 6 February 1997 in respect of headaches. In examining her neck in respect of that he had noticed a mole near her neck on the back of her right shoulder blade which he said "didn't look right". He then examined her further and "found more that didn't look right either". She explained that she thought it was one more but had been told it was two. The one was "in the middle of my back" lower than the first and to the right of the spine and the defendant said it was similar in appearance to the first. The defendant had said he needed to check as they did not look right. He "would have to do a scraping just to test it to see if it was cancerous". It was arranged she said that she return the following week for that to be done and sent to the laboratory. The defendant asked her to ask her partner if he had seen or noticed any change in the mole in the time they had been together.
13 She returned on 13 February. She had not by then asked her partner. She told the defendant however that no-one had noticed any change. The biopsy was then taken from the mole on the right shoulder.
(Page 14)
- "How long did that procedure take?---About 10, 15 minutes.
Did he discuss the procedure with you before he did it?---No, he just said it was just a normal scraping; he'd done lots of them before.
Did it hurt?---The needles did.
What needles?---The numbing needles that he had to put in there.
Did you receive some anaesthetic?---Yes.
What happened after he carried out the biopsy?---He just said to make another appointment and he'll do the other one a week later. I did that."
14 After the first biopsy had been taken the defendant had said "not to pick up anything heavy when I was leaving. That was all. Then we left".
15 She made a further appointment and returned on the 19 February when a second biopsy was taken, again without further discussion as to the procedure. In each case she was given local anaesthetic by needles. There was no discussion of pathology results on either occasion, and no discussion on any alternative course of action. The defendant simply said to return if the area became sore "or anything". She was asked:
"If he had given you an alternative, knowing what you know now, would you have undergone these procedures?---No.
Why is that?---Because if someone told me I was going to have a big scar on my back, there is no way I would have.
Do you have any particular attitude to medical procedures and the use of needles?---Yes, I'm usually afraid of needles, medical procedures.
Would you like to elaborate on that?---The only major surgery I have ever had was having my three children, but apart from that I haven't had anything really concerning needles or anything like that.
Why is that?---It was hard enough seeing my children get their immunisation needles and thing like that. It was bad."
(Page 15)
16 She said she returned to see the defendant on a later date.
"What happened then?---He had a look at it. He said it looked okay to him but it was sore to me. I was really worried so he took me and seen another doctor there; Dr McCann I think his name was. He said that he was involved in skin specialist and stuff so he could have a look at it; he might be able to help.
…
… I can't remember the date of that one but I seen a doctor and he had a look at it. He said that he would have to reopen it to try and fix it.
Before that happened did you take any medication for your pain that you were complaining of?---Yes, I had pain relief.
When did you start taking pain relief?---I think on about the second or third visit. I'm not exactly sure.
What pain relief was this? - - -It was Panadeine Forte.
Who prescribed it?---Dr Babich prescribed one lot of pain relief.
Was there another lot?---I think I had a couple lots of pain relief.
Do you remember any antibiotics?---No.
Do you remember going back to the practice in April 1997?
…
… I seen Dr McCann and he gave me some antibiotics but I'm not sure on what date it was."
17 She described the site at that time as "like a scar-type thing … it was itchy, it was burning."
18 Dr McCann made an appointment for her to return which she did and he "re-opened the wound" after giving her local anaesthetic and re-stitched it. After that she said she took antibiotics.
(Page 16)
- "What happened after that?--- … I think about round that time too I got a real infection where I had to go to the hospital.
Where was this 'real infection'?---In my right wound up on my right shoulder, the mole area.
Why do you say 'real infection'?---Because it was really, really sore by that stage.
This is which hospital?---Rockingham-Kwinana District Hospital.
What happened at the hospital?---They took a sample and said they'd send it away. They gave me pain relief and more antibiotics.
Do you remember when this was, a date?---24 March, I think.
I'm not sure. June – no, July.
…
You said that it was around that time that Dr McCann reopened the wound that you had this infection where you went to the Rockingham Hospital?---Yes, but I'm not exactly sure of the exact dates. …
What happened after you went to the Rockingham Hospital?---I'd gone to see Mr Macri at his surgeries.
Who's Dr Macri?---He's a doctor that was at Parmelia Medical Centre."
19 That is a different clinic from that at which the defendant practised.
"… What did you see Dr Macri for?---Because it was severely painful, the wound in my right shoulder.
What did he do for you?---He was giving me injections of – antibiotic injections and pain relief injections. He done that for several days – a couple of days and then he suggested that he reopen it and see if he can fix it, stop the infection, stop the stretching. He did that. I went back to the hospital a couple of days later because it was still really, really sore. His surgery was closed. They again gave me pain relief for the area in my
(Page 17)
- shoulder that was sore and I went back and seen him but then his practice has closed.
What happened then?---That's when it was starting to get better.
I see?---I went back to Chisham Ave Medical Centre and I seen Dr McCann, I think his name was, again and he said he could reopen it and fix it, seeing as the infection in it had gone by this stage. I agreed to that.
You agreed to that?---Yes, but it didn't work.
Why do you say it didn't work?---Because I've still been left with the ginormous scar on my back.
Do you know when that was done?---I'm not sure of the date.
The first time you saw Dr McCann, what were your immediate concerns?---The scarring. It was quite big when I very first seen him.
Can you describe the scarring then?---Yes, it was about – I'm not sure of the exact size, but to me it was like a big 'I' shape going up and down your back. It was huge, hideous. It was red – very red around the outside of it."
20 Photographs were then tendered (exhibits 1A-D). The plaintiff said that at the time of trial the scar was "probably a little bigger" and although it becomes a little itchy and aches a little in very cold weather it had stopped hurting soon after Dr Macri re-opened it. Prior to her seeing Dr Macri it had been so painful it prevented her from working, "doing things with my kids, going to the beach, horse-riding … from doing quite a lot in my life". She was then asked about employment and said that "not long" after the initial procedures she had worked at Golden West Egg Farm collecting, packing and grading eggs "for a few weeks". She said she had told the defendant she had this job on one of her visits to him. She had worked six or seven days per week from 9 am to 2 pm. "You had to push a trolley, use your arms to pick up the eggs from out of the trays that they fall into … . It got quite heavy when you were pushing it up and down hills and through the sheds". She compared it with a supermarket shopping trolley full of goods. She earned $300 per week net. She said she lost the position not long after because of the time she was taking off "because my arm was hurting; I had to take antibiotics; I couldn't use it."
(Page 18)
21 She was asked about the effects of the cosmetic appearance of the scar.
"I used to like going out a lot. I don't do that a lot any more. I can't wear a lot of the clothes I used to wear such as halter-neck tops; I can't wear dresses that show your shoulder or your neck. It is a big wound – a big scar, I should say. It has limited my clothes severely. Bathers I don't wear any more because you can see it. I usually have shirts that cover it now.
And in terms of your interaction with your family?---I don't have a partner. I'm a bit embarrassed to get undressed in front of my partners or any partner, as a matter of fact. I'm embarrassed to get undressed in front of other people including my kids, especially the kids. They ask questions. They usually want to touch the scar, want to look at it. It's quite embarrassing. So I don't have a life really now."
22 The plaintiff tendered a statutory Health Insurance Commission notice for recovery of $11,591 (exhibit 2), but the plaintiff was not sure of the exact extent to which it related to matters the subject of the current proceedings.
23 The plaintiff then reiterated that had she been made aware of the possibility of a large scar resulting from her treatment she would not have proceeded with the procedures.
24 Cross-examined the plaintiff agreed that although the events involving the defendant occurred in early 1997, she first saw solicitors and the writ was issued in early 2003. She said however, that she had always remembered what had happened. The proceedings originally were against three defendants, the present defendant, Dr Macri and a Dr Dewar, but the plaintiff said her concern had always been with the defendant. She agreed she had first made a detailed statement in October 2005.
25 She also agreed that between early 1997 and early 2003 she consulted "numerous doctors on numerous occasions for numerous complaints" and had "received treatment on and off for a significant number of symptoms" including depression and back pain, and received multiple prescriptions for severe pain and Pethidine injections. She agreed that she was "not totally sure" what she had originally consulted the defendant about on 6 February 1997.
(Page 19)
- "And it was during the course of this consultation that Dr Babich asked you about the moles on your back?---Yes.
And you said you didn't know they were there and Dr Babich discussed with you the importance of monitoring the moles for any change?---Asked me if I had.
No, he discussed with you the importance of monitoring the moles for any change?---He asked me to ask if anyone had seen or noticed it.
He explained to you that the size of the moles needed to be monitored due to the possibility of malignant melanoma?--- He said it could be melanoma. He asked me if I knew what melanoma meant and I said, yes, I did.
And he asked you to speak to your partner of nine years and ask whether any of the moles were new or if they had changed in any way?---Yes."
26 She agreed that the defendant had measured the size of each mole and that on 13 February she had told him that she was unsure whether the moles were new or had changed.
27 She denied that she had asked for all three of the moles to be excised; that the defendant had told her that he did not think the moles were cancerous and recommended that together they simply observed them for any change; that he recommended that he biopsy the worst looking mole and watch the others over a three month period; and that despite that advice, her preference was that all three moles be removed. She also denied that on 13 February 1997, the defendant explained the risks associated with the removal of the moles and the precautions that would need to be taken by her after the procedure, other than to say she was not to lift anything heavy; that he told her that there was a risk of infection as well as a risk of an allergic reaction to the stitch material, and the possibility of a reaction to the local anaesthetic that would be used. She denied that the defendant told her that the appearance of the scar could be unpredictable, that there was the possibility of abnormal scarring, and that even under perfect conditions some people will scar unexpectedly.
28 Nor had he told her that people who do not routinely scar will develop scars in certain areas of their body, or of the likely appearance of the scar, that he could not predict how it would look thin or thick, pale or dark, or that in some cases it could be raised.
(Page 20)
29 He had not told her of the care that needed to be taken after the removal of the mole, that a dressing would be applied and this should be kept dry for a period of two days. He had not said that as he knew that she had three children, she should not pick up her children for a period of three weeks after the mole was removed as that could stretch the scar.
30 None of these warnings were given before the biopsy was taken. It was the biopsy, she said, which led to the subsequent scarring. She agreed that the defendant, at the taking of the biopsy on 13 February 1997, put a stitch in her back then applied Betadine and a sterile bandage.
31 The plaintiff's evidence is that she returned a week later to have the stich removed and to be told the biopsy result at which time the defendant also removed another mole which he had found on her back near the spine.
32 She was not told, she said, that the biopsy had not revealed any cancer. Indeed, she thought the whole mole had been removed. She simply assumed the biopsy results were perhaps not then available but did not inquire.
33 She denied that the defendant had told her that the pathology result had shown that the lesion was not malignant, but that she insisted that he proceed with the removal of the two remaining lesions on her back.
34 She denied that he gave her any warnings about these procedures on this occasion either. She denied and did not remember that there had been a mole removed from her left shoulder. She was unsure about certain matters of chronology and detail but was clear that no warnings were given to her about he various procedures adopted. Although she could not recall the date she said that "the scar – the wound was red" or "very red" and says she was told "there was nothing wrong with it."
35 She was then asked:
"So the individual doctors that you saw, not necessarily Dr Babich, all inspected the wounds?---Yes.
And they all told you there was nothing wrong with it?---They thought there was nothing wrong with it. They thought it looked fine.
There was no indication of any infection?---Not at that time, I don't think.
(Page 21)
- And it was the case, wasn't it, that there was no ongoing problem with infection on the right side of the back at that time?---I'm not sure at that time.
I'm talking about the time between April and May 1997?---I think there was an infection there a little bit. I'm not sure when it was though.
On one occasion?---One or two occasions, yes. I'm not sure. I had antibiotics for an infection I had there.
Might that have been around 22 April 1997---It might have been.
And the problem at that stage was you had a slight infection in the right back?---I'm not sure how slight it was.
You received a prescription for antibiotics?---Yes.
And you had no further problem with the wound after that?---A little bit later I did."
36 She then explained that this was, she thought, after another procedure. She had seen Dr McCann in June on referral from, she thought, the defendant. At that time, she said, the scar was "quite stretched" or "quite wide". Its size was "a bit smaller" than that in exhibit 1. Exhibit 1 it seems, consists of photographs taken a good deal later, it seems in 2003 when she had consulted solicitors. She described the scar as being in June 1997 as "very similar in appearance, it was just a little bit small than that." She said she could not recall Dr McCann on 24 June 1997, telling her that he could not guarantee any improvement in appearance and that it could end up looking worse. She also said she did not recall that Dr McCann had told her that she might have pain after the local anaesthetic wore off, warned her of problems of wound infection, that there might be scabbing and crusting, poor appearance or stretching of the scar, or that after revision the scar could be worse.
"I don't think he did. I would remember if he did.
Well, if he had told you, what would you have done?---I probably wouldn't have gone ahead; I would have found a different way; I would have seen if there was more ways to do it; to get it back to where it should have been, a normal back; skin graft or something like that.
(Page 22)
- Nevertheless, you decided to proceed with the scar effusion by Dr McCann and that occurred on 26 June 1997?---Yeah.
37 After the revision by Dr McCann there were, she said, problems with infection and she attended Rockingham Hospital on 20 July. She thought she had been unable to obtain an appointment to see Dr McCann and had consulted a Dr Macri, then a medical practitioner at another clinic.
38 She agreed that she consulted Dr Macri on a number of occasions. She said that she was in a good deal of pain and was given injections. The wound was re-opened by him she said, because of the infection. She thought this was on the day prior to her attending Rockingham Hospital or perhaps on the day of that attendance. She agreed that this had not previously been mentioned by her in the litigation. The hospital notes of 24 July, (exhibit 7), simply read "Today wound re-excised and re-sutured".
39 The plaintiff agreed she had not informed Dr McCann of the infection or of Dr Macri's involvement. She attended Rockingham Hospital on 24 July, she said, because "the pain was really bad."
40 On 31 August the medical notes, exhibit 3, refer to "recurrent wound problem".
41 The plaintiff was also cross-examined about further consulting the defendant and Dr McCann in late 1998 but again could not recall any warnings. In November 1998, Dr McCann re-excised the scar. This was followed by a substantial period of infection.
42 She agreed that in mid 1997 she had been employed at Golden Egg Farm for "a couple of months" or "a few months".
43 In re-examination the plaintiff described by marking a photograph, exhibit 1A, how she thought the wound appeared prior to her seeing Dr McCann in June 1997. I subsequently viewed the state of the wound and scarring at the time of trial and made a written note thereof. I confirmed that during that examination Mr Nugawela measured the scarring or wound on the plaintiff's right shoulder as being 8 to 8.5 centimetres in length and 4 centimetres in width.
44 The plaintiff's tax returns were admitted by consent as (exhibit 6).
(Page 23)
45 The plaintiff called Associate Professor A J McBride with 25 years experience in general practice and who specialises in general medical practitioner education. She gave evidence by video link from Sydney. She had prepared a report dated 31 March 2006, (exhibit 11), and in examination in chief also orally explained the difference between a punch biopsy and an excisional biopsy. As would be expected, she had been provided with a summary of the plaintiff's version of events and gave expert opinion as to the matters therein recited including advice as to appropriate warnings to have been given to a patient in the circumstances. No issue is taken with those advices by the defendant. In cross-examination, Associate Professor McBride was told of the defendant's medical training and experience and his version of the relevant events. She agreed that if the events were as the questions proposed, there was no evidence of negligence by the defendant (her only comments being that perhaps in taking the plaintiff's history questions might have been asked as to her family history and sun exposure. Nothing is made in the present case of those two issues however).
46 The plaintiff also called evidence from Dr D Huntley-Mitchell. He is both a qualified Micro-Biologist and a physician specialising in infectious diseases. He gave evidence by video-link and had been previously provided with the defendant's and other medical notes relating to the plaintiff and a typed transcript thereof. These are (exhibit 3) and the aide-memoire thereto. His report thereon is (exhibit 17). He assumed that the medical note of 22 April related to the site of the earlier biopsy.
47 He said he had found the various notes difficult to follow. In cross-examination he was asked:
"… in the knowledge that the wound was clearly infected on 20 July and the knowledge as we now know that Dr Macri re-excised and re-sutured the infected wound on or about 23 or 24 July prior to her attending Rockingham District Hospital on 24 July what is your professional opinion in relation to a general practitioner performing such a procedure as appears to have occurred at that time?---Okay. The assumption is that there was active infection present at the time that procedure was performed and if the procedure was such that infected material was removed and puss was drained, if puss was present, then that may well have benefited the situation. However the doctor also appears to have re-sutured the wound and in general you would not want to suture an actively infected wound so it's hard to be definite about what the net effect may be because there
(Page 24)
- may been some beneficial effects of the procedure such as drainage and debridement but re-suturing the wound would not usually be beneficial in that circumstance. For example, after draining and debriding the wound it may have been better to pack the wound rather than re-suture it, that would have been the standard practice for surgery on an actively infected wound. So it's hard to know what the net effect of that action would be but certainly debriding and draining the wound would be beneficial but suturing it afterwards would probably be detrimental but it's hard to balance between the two to know exactly what the net effect would have been.
Yes. …
Were you aware when you provided your opinion that Dr McCann has revised the wound on 26 June 1997 ---No, I wasn't."
48 It is clear from this evidence and his report that the medical history given to him was incomplete and that his report's history and conclusion are therefore not a reliable basis for findings in the present matter.
49 The plaintiff tendered a report of Mr M Hanikeri, plastic and reconstructive surgeon, dated 13 December 2004 by consent (exhibit 10). It reads:
"She is a 31 yr. old woman who, from her history had a biopsy performed back in 1997 of a lesion on her right back which was complicated by persistent infection in the region lasting, she reports, for several years.
She says she had several courses of antibiotics both oral and intravenous. In addition she had a lesion excised from her back at the same time which has left her with an acceptable and completely normal scar.
She presents to me today unhappy about the appearance of the scar on the right scapula. This she says was due to the punch biopsy.
On examination there is a 4cm x 8cm stretched scar overlying the right scapula. The skin in the region is markedly thinned and this is in keeping with a stretched scar. The appearances are consistent with an 8cm long incision rather than a punch
(Page 25)
- biopsy as it is extremely unusual to have such a large defect from what would normally be a 3mm-4mm wound. Nevertheless it may be that this has resulted from recurrent debridement and/or dressing of a largely infected wound.
Venus does not complain of pain in the scar, although she does say that at times of cold weather it feels 'strange'. Her main concerns are the appearance of the scar as it limits the clothes that she is able to wear as she is very self conscious.
In terms of whether your client would benefit from scar revision surgery. As I have explained to Miss Hansen, scar revision surgery is possible however virtually all scars on the back tend to stretch with time and this is particularly so in regions that are subjected to constant motion and/or tension such as overlying the scapula. Scar revision would certainly make an improvement to the wound in the short term, however it is very likely that in the longer term the scar would again stretch.
Surgery would involve excising the existing scar and closing the area with deep sutures to take the tension off the dermis and then separate sutures to close the dermis and allow primary wound healing. This could be performed under a local anaesthetic, however due to the size of the area it would be more comfortable to do this under a general anaesthetic.
It is difficult to ascertain the cost as this would depend on a number of things such as where the surgery was undertaken, whether it was performed under a local or general anaesthetic and whether the patient required an inpatient stay post operatively. Assuming this was performed under local anaesthetic in a Day Surgery centre, the cost would be in the order of $600.00.
If scar revision were to be undertaken the period of incapacity would be 2 – 3 weeks. This would be partial incapacity as it would only be due to the pain from the surgery and the fact that the patient should avoid any stretching or bending for a period of 2 – 3 weeks.
The patient would be able to do some household duties, however, any duties that require repetitive bending, lifting or stretching of the back would have to be avoided.
(Page 26)
- Social, recreational and sporting activities should be avoided for a period of up to 4 weeks following scar revision surgery in this region.
The wounds would need to be kept clean and dry for a period of 48 hrs following which they could be allowed to get wet, however I would advise that the patient not swim for a period of 2 – 3 weeks after surgery."
The defendant's evidence
50 The defendant tendered by consent a copy bundle of the medical records pertaining to the plaintiff held by the medical clinic at which the defendant practised between 9 July 1996 and October 2003 (exhibit 3); a pathology report relating to the plaintiff dated 13 February 1997 (exhibit 4); and pathology reports of 19 February 2997 relating to two other lesions (exhibit 5).
51 The clinical notes for the period from 9 February to 3 March read as follows:
"9/02/97 Venus – B4T eyes itch – nasal congestion, sore throat, no cough, headaches. On examination – temperature 37, pulse 80, throat – mild inflammation. Diagnosis viral – advise. 8 x 7, 3 x 4, 3 x 3 pigmented lesions noticed on back during examination ? dysplastic naevus. Will discuss with partner of 9 years and return for biopsy one week.
13/02/97 Miss (B4T) – Skin review – Biopsy of pigmented lesion right shoulder/back. Review one week removal of sutures. Excision of lesion back.
19/02/97 Miss (B4B) – Biopsy lesions:
(1) – right shoulder 3 x 3 gut, 6 x 3 nylon.
- (2) – left shoulder 5 x 3 nylon. Dressing – review 3 days
19/02/97 Miss (home) – Complaining of pain from wound site. On examination – not infected. Clear – no swelling. Panadeine forte. Temazepam
22/02/97 Venus – Wound good. Return one week for removal of half sutures.
(Page 27)
- 25/02/97 Venus – Itchy wound. On examination – clear, mild redness. Not infected. Calamine, Avomine one at night.
28/02/97 Venus – Benign. Removal of half sutures. Review 3 days.
(Then follows a sketch of the plaintiff's back, and notes on other matters).
03/03/97 Venus – Removal of sutures – wound good – removal of sutures. Right side wound – 1 x 2mm lentigo with halo 3mm."
52 Then follow notes of very frequent attendances by the plaintiff concerned with a range of other and unrelated matters. No mention is made of any back scar matter until 21 June save for a note on 22 April "Slight infection right back." This was noted by another doctor, a Dr Brogan.
53 The pathology reports read as follows:
"Exhibit 4:
CLINICAL HISTORY;
Pigmented lesion ?changed. 4mm punch biopsy.
MACROSCOPIC:
Punch biopsy 4mm x 1mm (1x1, AE, HO).
MICROSCOPIC:
Sections show a benign lentigo with elongated squamous rete pegs, melanin pigmentation of squamous cells, dermal melanophages and a few lymphocytes. One or two small junctional naevus cell nests are present. No evidence of atypia or malignancy.
CONCLUSION:
Punch biopsy: Benign lentigo.
Exhibit 5:
CLINICAL HISTORY:
Pigmented lesions on back. Change in shape and colour. 1. Right shoulder. 2. Left shoulder.
- MACROSCOPIC:
1. An ellipse of skin 24mm x 9mm. On the surface is a slightly raised variably pigmented lesion with slightly irregular edges. It measures 6mm in extent (1x2, tg).
2. An ellipse of skin 18mm x 6mm. On the surface is a darkly pigment area 3.5mm in diameter (1x2).
MICROSCOPIC:
- 1. The sections show skin with an area in which there is some elongation of the rete ridges with increased melanin pigment in base keratinocytes. Increased numbers of single melanocytes are seen at the dermoepidermal junction. There are also scattered small nests of melanocytes at the dermoepidermal junction. In the subjacent dermis there are nests and cords of naevus cells which show deep maturation. No melanocytic atypia or malignancy is observed. The lesion is clear of the margins of excision.
CONCLUSION
1. Right shoulder: Benign, predominantly intradermal compound pigmented naevus. Completely excised.
2. Left shoulder: Pigmented lentiginous compound naevus. No evidence of malignancy. Completely excised.
54 A further report was requested by Dr McCann and is dated 28 June 1997. It is exhibit 6.
55 Exhibit 6 reads:
CLINICAL HISTORY:
Scar revision right scapula and adjacent naevus.
- MACROSCOPIC:
Ellipse of skin 32mm x 14mm x 10mm. Running longitudinally there is a wrinkled old scar 25mm x 7mm. Adjacent to this there is a 3mm pale macule (1x2, ho).
MICROSCOPIC & CONCLUSION:
Skin, right scapular region: DERMAL SCARRING CONSISTENT WITH PREVIOUS SURGERY. BENIGN PIGMENTED JUNCTIONAL NAEVOCELLULAR NAEVUS. The lesion appears completely excised.
56 On 10 July Dr Bradley of the same clinic recorded "wound looks okay".
57 Between 14 July 1998 and 11 August 1998, the plaintiff attended the practice on 28 occasions.
58 The defendant also tendered by consent the notes made at Rockingham Hospital Emergency Department on 20 July (exhibit 7).
59 The defendant practices as a general medical practitioner. After university and hospital training and short periods of general practice and anaesthetic training, he joined the practice at which the defendant attended in January 1997. His evidence is that aided by his contemporaneous notes he remembered the consultation with the plaintiff on 6 February 1997.
60 His evidence is that he made notes at each consultation. The notes were of the whole family's consultations kept in chronological order by the consulting doctor, with notation as to which member of the medical practice made the consultation and its date added by reception staff.
61 The plaintiff's evidence is that the defendant:
"presented with symptoms consistent with a viral upper respiratory infection during the course of which, … wearing a garment which exposed the upper part of her back, I was able to notice a number of darkened, potentially dangerous skin lesions which caught my eye and opened the discussion on skin lesions and the importance of monitoring of these lesions.
… I asked if she was aware that she had some dark skin lesions on her back, and she said no, that she was not aware. I asked was there anybody who would be aware; for instance, you
(Page 30)
- know, 'Do you have a husband or a partner who would be aware of what was on your back?' She said yes, she had a partner of nine years. I thought that a partner of nine years would have some knowledge of the contours of her back, so … I said, 'The options that I'd like to present to you are that – there's three in particular that I'm concerned with. I would like you to talk to your partner about these,' and if they had been unchanged through time I would be more comfortable with reviewing her in three months' time, but if there was no recollection of them being present, if they were new in the time leading up to when I consulted her, that I would recommend that a punch biopsy of the worst one, which happened to be the smaller one, which I would be able to completely remove that lesion, would give a level of clinical comfort that these lesions were not dysplastic naevi, which are the type of pigmented lesions which are precursors to malignant melanoma, so if … I could rule out dysplastic naevus syndrome, where people have a family history of these abnormal naevi, then that would make me more comfortable about the other two skin lesions.
What happened after that?---She returned, as I had asked her, in a week's time, to give me the information that he had as to whether they were new or unknown, and if they were unknown, what I proposed … just the week before that we consider a punch biopsy, which is like a hole punch of the skin lesion, and that associated with that would be a small risk of infection and scarring but nonetheless … a small risk, and that was what I had hoped would be undertaken.
Now, when she returned on the week after the 6th, what did she tell you in relation to any changes?---I just want to clarify that there would be no changes expected in a week, so that's not what we were looking at; we were looking at previous change, whether these were new, and she said to me that, 'We didn't know that they were present and I would like to have them all removed anyway.'
What did you say in response to that?---I said that I didn't think that that was necessary. I said that the most I had hoped to do was to do a punch biopsy of the worst one if that was needed, but there was certainly no need to excise the other two lesions. From my own suspicion I only needed to monitor those ones prospectively over a period of time.
(Page 31)
- What did she say in relation to that?---She insisted that I remove all three lesions.
… No, that's something that I recall.
Do you recall whether there was any discussion as to why … I was taken aback and I did ask again, you know, why, and she indicated that she just wanted them removed, she didn't want there to be any risk of cancer.
So it wasn't a suggestion that it was for cosmetic purposes?---No, but I … wondered why, given that I had said that I didn't think that there was a need to do this from malignant – for risk. She had indicated that she still wanted to go through with the procedure so I wondered and she said she just wanted them all out, so - - -
So … what did you say to her?---I said that I wouldn't be able to do that today because there wasn't sufficient time to do that. All that there was time to do was to remove one of the lesions by a punch biopsy. That's the smallest of the lesions, which is three millimetres and totally removable by a four-millimetre punch biopsy which … I explained again – well, then she would have to come back in a week's time and when she came back to have the stitch removed, then we could perform excision of the other two lesions at that time, but I did make it clear to her at the time she did indicate she wanted the others removed that there was a risk of scarring and - - -
Just stopping with scarring, what did you say to her in relation to the risk of scarring?---I pointed out that the scarring from removal of lesions, particularly in these areas of the back, was unpredictable and could occur abnormally; people who even previously had scarred well could unpredictably scar badly with a thickened scar or a stretched scar; that the colour could be out of character with the rest of the skin; and there was also a risk of infection from doing the procedure which would increase the risk of scarring; and there's also a risk of allergy to the agents used in the procedure.
Having told her this, what did she say?---She said she still wanted to proceed and have all three lesions removed.
(Page 32)
- So what happened then?---Well, I accepted her consent to proceed with the procedures and began with the punch biopsy of the smaller lesion on that particular day, which I performed."
62 He then described the procedure used. No issue is taken therewith.
63 The punch biopsy was taken from the region of the right shoulder:
"Did you say anything … in relation to precautions that she needed to take as a result of the procedure?---Well, with a punch biopsy there wouldn't be any expectation of stretching of that scar. I did make it aware to her that with any scars there is a risk of stretching, that she should avoid lifting, and I asked her in what particular activities she would be doing that and she said, you know, with her children and I said in that case she should avoid lifting her children.
Was there any indication from Ms Hansen at that time that she was employed in any way?---No.
Did you make any inquiries of her as to the sort of tasks that she would be undertaking that might lead to a stretching of the scar?---Well, I did ask that in relation to your previous question and I was made aware that she was undertaking home duties with the children."
64 He told the plaintiff to return in a week's time which she did.
"What happened then?--- …
When she came back for removal of the suture I told her that the pathology indicated that the lesion was benign and, … I wondered whether she'd changed her mind on excision of the other two lesions which … I had presumed was out of … a concern for malignancy, but she indicated that with thought about what I had told her about the risk of scarring and infection and stretching of the scar, she indicated she still wanted to proceed.
… No it's something I recall.
What happened then?---She said no, she still wanted to have the other two lesions removed. This was – she was already in the examination area at this stage – the treatment area, rather, and so with the aid of the nurse we positioned her on the table and
(Page 33)
- we prepared to do the procedure in a similar way but in a more involved way because it's more of an undertaking to do an excision of a skin lesion as opposed to a punch biopsy.
Can I just ask whether there was any discussion with her on this occasion in relation to any risks associated with the procedure?---The discussion was while the results were given to her, but when that was done and she indicated that she still wanted to proceed in the light of a week's time to think about the risks which I explained, … therefore I explained those risks again, of scarring, infection, allergy to the components, and in particular in this area – particularly the right lesion, which was more associated with the movement of the arm – I indicated that this is an area which is prone to stretching and that's why I … recall asking about what she did that would put her at risk of stretching of the scar, which was the question I put to her the week before.
…
Did you say to her anything specific in relation to the children?---I did say to her that she should not be lifting the children with that side of her body – that arm for a period of at least three weeks.
…
I recall that the punch biopsy site was above the right shoulder lesion. The six by eight-millimetre lesion on the right shoulder was therefore below the punch biopsy site on that shoulder, and then the smaller 3.5-millimetre diameter lesion was … between the spine and the left shoulder blade, so not so associated with the arm but on the left side. I labelled that one as the left shoulder."
65 He then described the procedure used, starting with the larger wound, that on the right shoulder which he measured at 24 millimetres in length and seven to nine millimetres in width.
"After you had dealt with the removal of these two lesions, what happened then?---Then I applied Betadine, as I do, and a sterile dressing and then I say that … this dressing must be kept on for a minimum of two days to avoid the risk of bacteria coming into the wound before it develops a protective crust, and I at that
(Page 34)
- point advised her to return in three days so that I could inspect the wound to make sure that there were no signs of infection developing, and if pain or redness did develop then she should return at any stage for examination of the wound for the possibility of infection … but in leaving, I did just reiterate to her the need for avoiding lifting with that particular arm as much as possible."
66 The plaintiff did return as requested on 22 February.
"The wound appeared absolutely fine. There was no sign of infection, no redness, no discharge. There was the expected crust, which was as I expected it to look, so I gave reassurance that the wound was good and I asked her to return in a week's time for removal of half the sutures, which I do in these cases where there is a risk of stretching … .
She returned one week later, at which time I informed her that the pathology results for the two lesions were benign, as I had done previously when she first returned. I had told her the pathology results of the biopsy were benign. I reassured her that these were benign also, and in that consultation I undertook with her, after discussion of the importance of monitoring of these skin lesions, that I would do an examination of all of her skin to … make sure that there were no outstanding lesions that could be pre-malignant or at risk of malignancy, and that we mark them in the notes, we record them, their site and their size and their nature, to be returned to in a year's time so that we can see whether there had been any new lesions or whether there had been any change to the lesions that were there.
And this is what you did?---This is what I did, yes."
67 The plaintiff then returned as requested some days later to have the rest of the sutures removed.
"At that stage, once again the wounds looked absolutely fine, no signs of infection, no redness, no discharge, and I was happy that no stretching had occurred at an early stage and felt that that was appropriate to remove the sutures at that stage, which I proceeded to do."
(Page 35)
68 The defendant next saw the plaintiff some two months later when she was being seen for a neck problem. She informed him that she had started work at the egg farm.
"She didn't say that there was any problem with the wound. I didn't expect any and I didn't ask if there was any problem.
Now, Ms Hansen has given evidence that in June of 1997 she saw you and complained about the scar and you then referred her to Dr McCann. Was that your recollection of events?---No, that's not my recollection of events.
Did you see her at that time?---No, I didn't see her before she saw Dr McCann. I didn't know that she had a problem with the wound. It wasn't until afterwards that … she returned to the practice for a dressing of the wound which was infected and that's when I was able to review the notes and see what had happened."
69 This was in about early July and after Dr McCann had revised the wound. In late August he had seen the plaintiff about an ear infection.
"I'd asked her how that wound infection had been and she informed me that she had finished the antibiotics treating that wound infection 10 days earlier and that it had healed and there was no further examination of that wound required by me."
70 He had by then learned from the notes of Dr Bradley having referred the plaintiff to Dr McCann who had operated on the shoulder wound in late June and the plaintiff being seen at Rockingham Hospital. He was not then aware of Dr Macri also being involved. He next saw the plaintiff in March or April 1998 in relation to headaches, neck pain and depression. In August 1998 she reported that the wound was irritating and it was itchy.
"At that time I examined the wound and I was quite taken aback by the size … because it resembled nothing which I expected it would look like. I hadn't at that stage been made aware that anything other than what myself and Dr McCann had done had been actioned in relation to that wound …
The wound … the incision which I made was 24 by seven to nine millimetres, bringing a closure of a wound of that length."
(Page 36)
71 He illustrated this by a diagram, (exhibit 12(a)). He added a diagram showing, by reference to the pathology report, (exhibit 6), the extent of the excision made by Dr McCann (exhibit 12(b)).
"The piece of tissue removed is 32 millimetres in length by 14 millimetres in width at a depth of 10 millimetres. Contained within the tissue is an old scar 25 millimetres in length by seven millimetres in width. Adjacent to this there's a three-millimetre pale macule, which is another pigmented lesion which Dr McCann included in that excision because it was close to the wound.
So the wrinkled old scar of 25 millimetres by seven millimetres is consistent with the excision that you performed in February of 97?---Yes, that's the excision of the larger lesion of the right shoulder blade."
72 He told the defendant that the irritation might be the result of inflammation associated with the scar and recommended use of cortisone. However, the plaintiff said she wanted the scar again revised by Dr McCann.
"… and seeing the wound as it was and the problems that she had had, I indicated that I didn't think that that was necessarily going to improve the wound … I explained that the same risks apply, … the scarring could be unpredictable and it could be worse … . I didn't want to say to her that she should not have it done but I was not very comfortable with her having another procedure on that shoulder and I said that … I would like to explore any other options, non-surgical options, in dealing with the problems that she was having … the irritation in particular, and that perhaps it could improve the appearance of it and so I asked her to come back and see me …".
73 He recommended an agent, Rejuvene, on the advice of Dr McCann.
"But she returned to me again, saying that the cost of the Rejuvene was too prohibitive … she still wanted to have the revision by Dr McCann."
74 He later became aware of a further re-excision being performed in November 1998 by Dr McCann but the wound became reinfected within two days notwithstanding antibiotics. The defendant saw that plaintiff later, increasing the use of antibiotics. By mid-December the position was
(Page 37)
- improved. However, in late December it worsened requiring almost daily antibiotics, again improving in January 1999.
75 During the course of examination-in-chief, the defendant then explained the contents of the relevant contemporaneous notes he had made during the consultations by the plaintiff with him. It is not necessary to repeat that evidence here. Suffice it to say that the defendant's evidence thereof clearly showed an independent recollection of the events concerned which allowed him to expand upon the literal text of the notes. He was adamant that he had given the plaintiff warnings in relation to the procedures undertaken in February 1997.
"As I said, it's something I recall doing, it certainly is my normal practice to do it and to do it clearly for obvious reasons so that, … the patients are forewarned if there were to be any of these possible problems afterwards that they're aware beforehand – before they make the decision."
76 As to why he had not initially referred the plaintiff to a specialist plastic surgeon he said:
"I'm fully comfortable with dealing with skin. I've been experienced in it and trained in it specifically, and I am fully comfortable with lesions less than one centimetre. If there is any doubt in my mind about the ability to handle a skin procedure I immediately without hesitation would refer it to either a dermatologist or a plastic surgeon."
77 He described Dr McCann as:
"a specialist cutaneous surgeon … who has an interest in general medicine and by that interest … he works … as both general practitioner and cutaneous surgeon utilising the operating theatre facilities at the practice".
78 As to his own technique concerning sterile surgery he said:
"I am absolutely meticulous with my sterile technique. I very, very rarely have anybody return to me with a wound infection. I'd say that … I practised at a high level to prevent infection."
(Page 38)
79 Under cross-examination he drew the original appearance of the lesions and the scapula and said he felt comfortable dealing with a lesion of the size he biopsied. His concern that it could be dysplastic was allayed by the biopsy results.
"I told her to speak with her partner and … if there had been a change in the appearance of her back, if these lesions were new or not noticed previously, then an option that we could take would be to do a punch biopsy of the worst one, which happened to also be the smallest one. When I say 'the worst,' it was the darkest and one that I guess concerned me slightly more than the other two. It fitted that I could biopsy this one and remove it completely at the same time with a very simple low-risk procedure, which was my preferred option."
80 He agreed that he had first had to recall these matters in early 2003 and that he had made a statement utilising the medical notes to refresh his memory. He recalled that on 6 February 1997 he had warned the plaintiff of the possibility of malignant melanoma and that the punch biopsy is associated with a small risk of infection and scarring. He agreed that this latter warning is not mentioned in the statement then made or in the contemporaneous notes. He said that on 13 February he:
"explained it once again, that there's a risk associated with punch biopsy but, moreover, the risk is greater with excision of a skin lesion which is more involved and more prone to scarring."
81 He was cross-examined in detail about the warnings he said he had given, their timing and associated matters, especially given that no notes had been made thereof at the time. He said that initially he had asked the defendant:
"To speak with her partner and if these lesions were not previously noted or if there was a change, then we could proceed by doing a punch biopsy on the three-millimetre lesion, which would give some reassurance."
82 His initial thought had been that:
"I would let her go and come back to me if they became worse but then - - -
Over what period of time?---Over a period of three months.
(Page 39)
- Yes?---But then I was concerned that she may have an underlying malignancy which I may miss, so I made the advice more specific, that she return in a week, having the discussion, so I could be sure that follow-up did occur.
The nature of the discussion with the partner was whether there's a history of new moles developing over, what, an indeterminate period of time?---Either whether they had been noted in the past at all and, if so, when. I certainly was not referring to a period of a week's time within which we wouldn't see any change.
…
I said that I would see her in a week's time, at which time if there was an indication by virtue of the fact that she had no prior knowledge, therefore we don't know if there was any change, or if there had been definite change, then we would proceed to the biopsy, and … she certainly had no knowledge of them on that day I first saw her, and on the following week she told me that her partner had no knowledge of them as well, … there's no recorded observation of these moles being static in their appearance in the previous period of time."
83 On 13 February the plaintiff decided to have all the lesions excised although he had made it clear to her that that was not necessary.
84 At that time, he said, he "couldn't be sure whether she wanted to have them removed because of a fear of malignancy or for cosmetic reasons, but … I don't think it's really cosmetic reasons. She just said she wanted to have them all out, so I … tried to tell her that that was not necessary, we would exclude malignancy without removing them all, but she wanted to have them all out."
85 He said he made it clear to the plaintiff that "there wouldn't necessarily be a better result as a result of removing them." He did not know if the plaintiff was motivated by cosmetic reasons or by fear of concern. Because the plaintiff wanted the three lesions removed he noted "Excision of back lesions" and made an appointment allowing for sufficient time for that to be done in the following week.
"There was the discussion about the skin lesions and then there was a discussion about her wanting to have all three removed and there was my further discussion of the risk of those
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- procedures, including punch biopsy, and the more significant risks associated with the excision of lesions, at which she indicated she still wanted to proceed with all three. As I talk, I recall that she was hoping that I could do it on that particular day and I recall indicating that there wouldn't be time. Even if that was the case, that I did have time, I would like to do the punch biopsy only and review her in a week's time in light of the information that I'd given her and to review the results of the punch biopsy, which was my intention in the first place, to be the most significant action that would be necessary on this patient, hoping that by giving her the benign results the week later …
I did the punch biopsy on the 13th and I got the results back between the 13th and the 19th, which told me that they were benign. … When that did occur, when the results were available on the 19th, when I saw her I made that known to her, that the punch biopsy revealed a benign lesion which was completely excised.
…
I'm trying to ascertain what activities took place on the 13th despite the brevity of your notes and how much time you estimate that would have taken to carry out all those activities reasonably competently?---As I said, 10 minutes – let me say the opening discussion would be between five and 10 minutes.
What would that cover?---That would cover the risks of – first of all, as I said, the discussion about the pigmented - - -
This would cover what?---She presented and she said – I said to her, 'Has there been any change?' and she indicated, 'No, we don't know if they have been there before or for how long they've been there. We don't know, but I would like to have them all removed anyway'. I said that this was not necessary and she said she just wanted them gone and I said that what we needed to do is rule out malignancy; that is the reason why we're doing this procedure, and we could do that by biopsying one of these lesions which had a similar appearance to them and that would give me reassurance for the other two lesions, and that's the punch biopsy, and that is associated with a limited risk of scarring and infection, whereas excision of the other two
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- lesions is much more involved and is associated with a higher risk of scarring, particularly if infection or allergy should ensue, and particularly in the areas that were concerned.
Because there is movement of the scapula?---Of the scapula.
And you went through all the 10 factors with her orally about the risks of excision as opposed to the punch biopsy during that consultation?---Yes, I did.
And you didn't note any of this in any document; you just recall that?---Well, I recall it, but on that matter I would like to say that at that time it was not standard practice to document all the warnings that were given. I think that since that time, in the climate that exists today, we document much more extensively than what we documented in this period of time. … But I know from the records what other doctors do and I know that at the time the current practice was that you would record the notes that were required of you at the time for managing the patient.
And not any in relation to warnings? There's nothing in any of your notes that relate to warnings, is there?---Well, it's something which is done automatically as part of discussing a procedure. It's implicit in that the warnings are given that there are complications with everything we do and - - -
Usual practice?---That is standard practice.
So you rely on usual practice for your recollection of many of the warnings that you have given?---No, not in this case.
In this particular case you have an actual recollection of the 10 matters, as at February 97?---I have a recollection of explaining the risks of scarring from these procedures and the other complications that could occur."
86 He was then taken to the various paragraphs of the defence.
"Now, in paragraph 4.5, firstly, do you recall telling your advisers that this is the oral warning you had given to the plaintiff, 4.5.1 through to 4.5.4?---I also described the types of scars that she might expect from an unpredictable scar and the fact that that scar could occur in people who previously had scarred well and that - - -
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- Just staying with not the additional matters, these four matters that appear in your defence; do you recall telling your advisers that you warned about those four things?---Yes, they were part of the warnings which I gave to the patient."
87 He was cross-examined as to warnings which at trial he said he had orally provided to the plaintiff but which had not been included in the particulars given in the statement of defence. He said:
"I give my warning to – and I gave my warning in this case in a manner which I recall and included the risk of scarring, infection, allergy, stretching of the scar and abnormal scar formation."
88 He said these were the more important ones and were dealt with in the defence and agreed that in the defence there is no reference to warning of
"the risk of abnormal scar formation in the form of – in medical terms keloid scarring, which is thickening of the scar, which could occur unpredictably."
89 Later he added:
The other warnings are abnormal scar formation, otherwise known as keloid scarring, but that's not the word that I have said to Ms Hansen or to any other of my patients. Normally I say that abnormal scarring can occur in ideal circumstances where people who previously have scarred well can for no reason at all scar abnormally, and the scar can be thick or thin, light or dark.
You told her that? --- I did.
What did she say in response? --- She asked me - she said that that is something that she understands and accepts, but she did want to know what the risks were of this occurring. I said I couldn't give her a figure but I had to let her know that these things could occur.
Is that the first time anyone has asked you what her response was to these warnings, today, my question, the first time? ---That may be. That may be. I don't recall being asked that previously.
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- What's also not in the defence is your evidence that you told her that even in perfect conditions a scar could develop. Is that an important warning to tell someone in Mrs Hansen's position?--- I certainly believe it is an important warning.
…
Is it important to warn the plaintiff that people who didn't routinely scar could scar in some areas, particularly the scapula?---Yes, that's something that I remember saying because of the area it was.
- - - particularly given the location of the mole? ---yes, that was more – there's two reasons to give special warning: one is because of stretching of the scar, and the other is because keloid or abnormal scar formation, if it does occur, it is more likely to occur in the upper trunk region."
90 It was put to the defendant that given the lack of any contemporaneous note of warnings and given the particulars set out in the defence which did not include a warning of pain or abnormal scar formation or keloid scarring, he had embellished his evidence, which he denied.
91 On 13 February 1997 he said he had the pathology results and gave those to the patient on arrival.
"I did say that I would see her in a week and we would have a discussion with the results and remove the suture and take what further action was necessary.
…
Ms Hansen had already indicated that she wanted to have all three lesions excised. I had hoped that she would be dissuaded by the benign result of the punch biopsy giving support to the other lesions being benign – or more likely to be benign."
92 On 19 February he had seen the plaintiff in the morning and another doctor in the practice had seen her, complaining of pain, in the afternoon. On 22 February he removed half the sutures on the right shoulder and on the 25th again she saw another doctor at the practice complaining the wound was itchy. Each time the wound was found not to be infected. He had measured his incision scar as 9 millimetres long. On 3 March the
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- scar was 24 or 25 millimetres long. Any stretching, for reasons he gave, would be in the width. The skin edges were then together. He pointed out in evidence that the clinical notes of 22 April referring to antibiotics being prescribed for a slight infection of the right back is not in terms expressly referring to the wound from the procedure he had undertaken. When he saw her on 30 April there, was no reason to suspect any problem with the wound. Normally any infection would be within 7 days of removal of sutures. He did not then examine her back. He next did so on 31 August.
93 Dr D J McCann is a general practitioner with a long experience in plastic surgery. At trial he said:
"most of my practice is almost exclusively the removal of skin lesions which includes moles, skin cancers and scars, and at a rough guess there may be two and half thousand cases a year of this – not necessarily of moles and scars but every lesion that I do involves the skin, so in some way or another you're focused on skin and sink results two and half thousand times a year."
94 In June 1997 he reviewed the plaintiff but at trial could not recall her or their conversation other than through his notes.
95 He saw the plaintiff on 24 June 1997. He explained his notes:
"I've written that Venus Hansen was concerned by the scar on her right shoulder blade or scapula, that it was stretched, presumably from the mole excision performed four months prior in February. I summarised the consultation that she wanted the scar revised or, in other words, redone and hopefully improved. As part of my investigation of why people want to do - have it done and their circumstances, I've made the notation that she works at the Golden Egg farm bending over and she needs Emla. Emla is an abbreviation for a local anaesthetic cream … why I've written that is firstly bending over is – the nature of her job is bending, twisting, I think stacking eggs, I think it was, so that is a repetitive activity which puts a lot of stretch on the shoulder bade region, so in my mind that would make it a difficult case.
…
You could almost say her type of manual labour involved a lot of shoulder work and her shoulder has been repetitively moved so that if you performed an excision and did a technically good
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- repair, the repair may be undone by her occupational circumstances, that a scar which otherwise - if there wasn't a lot of physical activity involved and had had a period of rest, for argument's sake, before she went back to work, that scar would mature better than one who perhaps went back to work and stretched the scar by virtue of her occupation.
96 He then explained that Emla is used when patients seem very apprehensive about the use of needle injections, to mitigate the pain. The note of her employment was something significant given that the work environment might be dirty and not ideal. He also explained at some length the use of warnings to patients in such cases and his history of repairing scarring resulting from previous surgery, and the use made of prior medical notes.
97 He was asked:
"So is it fair to say then that on 24 June 1997 if you had gone back through the notes and ascertained there had been a history of infection or (b) yourself seen on 24 June 1997 infection, would you have proceeded with the revision? ---Not at that time, no. The point was I was asked to see this girl and there's a note in the notes that says, 'Damien, can you look at this girl's scar? She's not happy.' So that's part of referring back to that referral and therefore you would keep thumbing the pages to see what had transpired in the proceeding three or four months, just to get a sense of it. If there was any sign of infection, it's an inappropriately early time to do it.
June 97?---Mm. So you'd look back and the referral that I can see is 21 June and then certainly a wound or a stretched scar, which is the comment I made later on.
Yes?---And that was, you know, if you said a red, stretched car or an inflamed, stretched scar you would be inferring that it's potential infection and therefore it would be contraindicated, you would not do it.
Did you by any chance take any measurements of the scar at that time?---All I've got to rely on its just a diagram that I drew on the 26th which shows the orientation of the scar and the fact there was a mole nearby, and in fact I put that note on the 26th that there was a stretched scar and an adjacent mole because that mole near a scar could become quite apparent if the scar
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- went poorly; it's part of the working out what might go wrong, and so I made a note that there was a mole right near where you're going to put a scar, and if you want to highlight a mole you just put a scar nearby it, so there was something in my mind.
…
So it's fair to say that the size of the scar that you excised on 26 June 1997 was 25 millimetre long by seven millimetres wide?---With perhaps a – even though he's stretched it out on the board it may have been – on the person's body it may have been slightly longer."
98 By contrast he described the scar at the time of trial and as it was photographed: exhibit 9 as "huge".
"If she had presented with a scar for revision of that size, what would your response have been?---I would've been staggered that the scar – the surgery, of February 97 could ever have produced a scar like that."
99 He then explained the processes of change in the size and appearance of scar tissue, and the notes that he made of his surgery on 26 June 1997.
100 He next saw the plaintiff in November, after her attendances at Rockingham Hospital and Dr Macri and after being asked about her in August and October 1998. He then found "an abnormal scar". He did not believe that that scar was the result of his own pervious surgery.
101 He was asked:
"Can I ask you, Dr McCann, whether at any time, at this time prior to the further revision in November 98, Ms Hansen advised you of her attendances at Rockingham hospital or the re-excision and resuturing by Dr Macri?---Absolutely not. As I've mentioned further, if I'm doing someone else's work or revising someone else's work, it's my usual practice to find out something about what constituted that scar; the technique used, the materials used et cetera and, as I said, it even involves ringing the Eastern States sometimes because - - -
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- Did it concern you that the scar you were asked to revise and review in November 1998 was so markedly different to the scar that you had reviewed – revised in June of 97?---I was surprised because I've mentioned – I could say I would be surprised to some extent that we know the measurements were three, five centimetres as recorded by the pathologist. Now, a scar will stretch laterally but it doesn't often stretch longitudinally. So the movements of the shoulder of stretching the scar will stretch the width of the scar and make it wider, as we saw in the photo, but it often won't make it longer but – and also the-cross-hatching because the nylon stitches that you put on the outside, you try and get them out at seven, eight, nine, 10 days before they leave marked cross-hatching, but on this occasion it was a big scar and without – I'd accept that the cross-hatching was from my nylon stiches and the stretching was, you know, occupational bad luck, infection.
…
Just quickly, going back to the revision in November 1998, are you able to recall whether you gave any warnings to Ms Hansen at that stage in relation to the risks of further revision?---Absolutely. I think, as I said you have a modus operandi and I think it's implicit in drawing the diagrams that you went to some trouble to physically show her, you know, what you were going to do to try and improve the scar. I mean, that’s what she was there for. You outline the way were trying to improve her scar, but you would never promise that it was going to be better than – you know, that the scar would disappear or whatever. You would just say, 'I am going to try and improve it.'
So when you say 'you would just say' – do you have any specific recollection of telling her of the risks or is this your usual practise?---I can't say that I told her this or that but my usual practise is, but when I see diagrams like that I obviously went into some detail to explain to her what was going on and if I was drawing diagrams like that I could – and also mentioned anaesthetics and vicrylor layers and things like that, she would have been given a full understanding of what the procedure involved."
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102 He stressed that he did not warnings in percentage terms and that he adapted the warnings given to the patient concerned, the position of the scar etc.
103 In this case on 17 November 1998 there was no procedural work done and the notes indicated the consultation took a minimum of 25 minutes "so that time component was all in explaining to the patient what the problem was and how we were hoping to fix it which is far longer than the usual consultation."
104 Cross-examined Dr McCann explained surgical procedures and scan measurement and the diagram he had drawn on 26 June.
105 Dr J F G Bell, a general practitioner with a special interest in skin cancer and its surgical removal was called by the defendant. His report is exhibit 14. In his experience it is unusual for an infection to first appear in a wound site two months post-operatively where there had hitherto been no history of post-operative complication.
106 He considered "the measures taken by the defendant to minimise the possibility of infection to be of an adequate level for a practitioner performing a superficial procedure in an office setting" and the warnings outlined in the defence as having been given as adequate.
107 Cross-examined he agreed that the itchiness mentioned in February and April 1997 might possibly represent early signs of low-grade infection but there were no further complaints subcutaneous infection would be quite unlikely to remain symptomless for two months.
108 He was asked:
"And in your practice would you note the warnings that you give a patient?---I would summarise them. It wouldn't be practical to write them all down but I would summarise the main ones and - - -
Because it's pretty hard to recall years later whether warnings were given or weren't given, isn't it, unless you write them down?---I do concede that. I mean, I have a protocol which I go through and I do summarise that in the notes, yes."
109 The defendant tendered the microbiology report dated 23 July 1997 without objection: (exhibit 15).
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Conclusion
110 In this matter there is in my view no need to reiterate the law of negligence so far as relevant. It is not in contest that the defendant owed duties of care to the plaintiff as her medical adviser and treater. The content of those duties is not in question either. The questions raised in the matter are essentially matters of fact as to whether those duties were breached in any regard, and if so whether, and to what extent, such breach or breaches were causative of damage or loss.
111 The plaintiff was a poor historian of what had occurred. Her evidence clearly cannot be preferred to the contemporaneous notes made by her various medical advisers. Not only did she fail to mention significant events but for no reasons attributable to the defendant her understanding of events as they occurred was not satisfactory. Where her version of events differed from that of the defendant or of Dr McCann, I prefer the latter. Each was a careful accurate witness. Their evidence was not only supported by the contemporaneous notes but consistent and reasonable. The defendant's evidence made it clear that he recalled a good deal of what had transpired in addition to the matters set down in his notes.
112 On the other hand the plaintiff's evidence was often confused, in error, or exaggerated. There are specific matters which need to be dealt with. A major issue in question relates to the warnings given to her. As to that there are no contemporaneous notes. The onus is on the plaintiff. She says such warnings were not given by either the defendant or Dr McCann. Given the medical evidence that is not credibly likely on its face and given her poor recollection and understanding I reject it in favour of the evidence of the medical practitioners that each of them gave her various warnings. I am not prepared to find that the absence of such a note in 1997 points towards the absence of such warnings albeit that at least some medical practitioners might note them in 2006 or have done so even then. I accept that the notes were directed to treatment issues not medical self-protection. The contents of his notes in fact support the findings of the defendant being a careful accurate practitioner. However, the exact number and content of each warning given and of precautions against them does not, I think, need to be established by the defendant. In my view the essential nature of the issues was conveyed to the plaintiff, however those issues are divided up or categorised in a later statement or pleading. They were risks of infection, scarring and stretching.
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113 The evidence of other witnesses called by parties on the question of what warnings should be given is not really contested and is consistent. I am satisfied that appropriate warnings were given. Failure to have done so, I am quite satisfied, would have been a breach of a duty of care amounting to negligence. For this same reasons I reject the plaintiff's evidence that she was not told the biopsy results. The defendant's evidence indeed is that despite his attempts to defer any excision of the lesions pending biopsy results or pending visual observation of changes in appearance the plaintiff insisted on excision. I accept that evidence and given that history I also reject the plaintiff's evidence that had warnings been given she would have avoided surgery. It is not clear why she insisted on removal of the lesions but she did.
114 Even though the plaintiff's evidence on these matters is rejected there is still the issue of whether negligence by the defendant has been established. In my view this allegation also fails. I accept again the evidence of the defendant and of Dr McCann. The chronology established as expanded by the evidence I accept is far short of establishing any negligence. Rather the events as finally established suggest that the plaintiff ignored the advice she was given and by so doing contributed to bringing into existence the problems she had been warned against. Further, whilst Mr Nugawela argues that questions of "novus actusinterveniens" were not pleaded in the defence and evidence of those later medical interventions which occurred before the claim against the defendant was made were not the subject of evidence I am far from satisfied that the final state of the scar or wound on the plaintiff's right shoulder can be attributed solely or at all to the medical interventions of the defendant. Further even if negligence by the defendant had been established so that quantum was in issue, I am satisfied that other contributing factors were heavily involved in creation of the eventual scarring result. The evidence is clear that on 26 June 1997 Dr McCann removed a scar area 25 millimetres by seven, essentially the same as that excised by the defendant in February, but also included a mole area nearby. That wound later became infect. Later revisions occurred. The final result is scarring many times larger. I agree that that cannot be attributed to the defendant let alone be evidence of his negligence. As Mr Wallace pointed out the only evidence of any problem arising from the defendant's surgery is an ambiguous note by another doctor made on 22 April 1997 that the plaintiff had a "slight infection right back". Even if that refers to the same area, it does not establish negligence. The possibility of infection (and of stretching and of other complications) is clearly not unknown and none of the evidence suggests that of itself
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- infection establishes negligence. Indeed, it is a complication of which patients should be warned.
115 Given the evidence of the defendant and of his notes which I accept, none of the medical evidence points towards negligence on his part.
116 The onus of establishing some breach of the defendant's various duties of care lies on the plaintiff on the balance of probabilities. She has failed to do so and the claim is accordingly dismissed.
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