Hawes v Holley

[2008] NSWDC 147

CITATION:	Hawes v Holley [2008] NSWDC 147
HEARING DATE(S):	7-11 April 2008, 16 May 2008 and 7-8 July 2008
JUDGMENT DATE:	22 August 2008
JURISDICTION:	Civil
JUDGMENT OF:	Hungerford ADCJ
DECISION:	Verdict for the first defendant against the plaintiff; parties to be heard on costs before final orders made. To extent necessary, if liability in negligence of first defendant had been found, damages quantified in amount of $95,005.18. Action settled as between plaintiff and second defendant.
CATCHWORDS:	TORTS - Professional negligence - Medical practitioner - Failure to treat patient by pharmacological means to avoid need for abdominal surgery - Pseudo obstruction in bowel secondary to spinal surgery - Complications from abdominal surgery - Whether diagnosis wrong as leading to mismanagement of patient - Whether treatment in accordance with acceptable professional standards of competent medical practice - Defence of treatment given being widely accepted in Australia by peer professional opinion as competent professional practice - Whether differing peer professional opinions - Quantification of damages
LEGISLATION CITED:	Civil Liability Act 2002, ss 5O, 13 and 16 (2) Civil Liability Amendment (Personal Responsibility) Act 2002 Workers Compensation Act 1987, s 151Z
CASES CITED:	Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 Bruce v Kaye [2004] NSWSC 277 Connor v Blacktown District Hospital [1971] 1 NSWLR 713 Dobler v Kenneth Halverson [2007] NSWCA 335 Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 Rogers v Whitaker (1992) 175 CLR 479 Rooty Hill Medical Centre v Gunther [2002] NSWCA 60
TEXTS CITED:	"Acute Colonic Pseudo-Obstruction" - American Society for Gastrointestinal Endoscopy Journal Vol 56, No 6, 2002 "Neostigmine for the Treatment of Acute Colonic Pseudo-Obstruction" - The New England Journal of Medicine 15/7/99, Vol 341, No 3
PARTIES:	Debra Kim Hawes (Plaintiff) James Chalfont Holley (First Defendant) Geraldine Angela Linda Long (Second Defendant)
FILE NUMBER(S):	5063 of 2006
COUNSEL:	Mr B Hull (Plaintiff) Mr J Downing (First and Second Defendants)
SOLICITORS:	Emery Partners (Plaintiff) TressCox Lawyers (First and Second Defendants)

JUDGMENT

1 Complications following spinal surgery on 14 January 2003 involved disturbance of bowel function leading to the performance of surgery to the abdomen by way of laparotomy on 22 January 2003 to decompress the bowel. This further surgery itself had its own complications with alleged serious and long-lasting effects for the patient, but where it was claimed that those effects could have been avoided by the use of less invasive pharmacological treatment. This action for professional negligence against the bowel surgeon alleged a breach of the duty of care he owed the patient by depriving her of the chance of her condition being relieved without the need for surgery until it was too late.

Background facts

2 The plaintiff, Debra Kim Hawes, was a 45 years of age lady who lived with her husband at Toronto, near Newcastle; there were four adult children of the marriage. She had had continuing problems with her lumbar back since December 1992 when she suffered an injury at the workplace with Inghams Enterprises Pty Limited during employment as an egg collector/farm hand while bending over to lift a hen to retrieve eggs. She returned to work a few days later wearing a back brace. However, on 24 October 1993, again while retrieving eggs, she sustained an aggravation to the back injury and was unable to work for some considerable time; workers compensation benefits were received. Although initial treatment was conservative with physiotherapy and medication, a CT scan showed disc prolapses at the L4-5 and L5-S1 levels and on 15 February 1994 Professor YAE Ghabrial, an orthopaedic and spinal surgeon, operated on the plaintiff and excised the prolapsed discs. Thereafter, the plaintiff became depressed with suicidal ideation, was unable to work with the back pain and marital conflict ensued. Professor Ghabrial, in his report of 6 April 1994, said the prognosis was not clear at that stage but he believed she would never be able to go back to any work involving heavy lifting and excessive bending and it was “highly likely that she will continue with residual disabilities as a result of her injuries to her lower back” – later, in June 1994, Professor Ghabrial assessed the plaintiff’s permanent impairment of the back at 35 per cent and of the right lower limb at 15 per cent.

3 Professor Ghabrial continued to treat the plaintiff conservatively, including from a flare-up of her symptoms following a fall in April 1995. Her general practitioner, Dr Paul Mayers, referred her for medical assessment to a musculoskeletal occupational physician, Dr Claire Hollo, who, in a report of 9 September 1999, said a tear at the L4-5 level was the cause of the continuing symptoms of pain and recommended further investigation of the lumbar region. Dr Mayers saw the plaintiff on a regular basis thereafter and managed her condition with medication. She experienced problems with urination and had a cyst in the urethra with central abdominal pain; self-catheterisation was utilised for relief.

4 Unable to return to the pre-injury work, the plaintiff undertook a driving course and obtained a public passenger driving licence. She drove buses during the Olympic Games transporting spectators and also from time-to-time was a relief bus driver in her local area – those activities created for her an interest in bus driving and the desire to start her own business on a contract basis driving disabled children. However, the former back injury and its consequent symptoms of pain intervened to frustrate that intention and she again consulted Professor Ghabrial. He had her admitted to Lingard Private Hospital where, on 14 January 2003, he performed decompression laminectomy at the L4-5 and L5-S1 segments with re-excision of both discs and spinal fusion to the L4-5 and L5-S1 segments. Although not rare but uncommon, the surgery was complicated by post-operative colonic obstruction.

5 In the days following surgery, the plaintiff experienced pain in the lower abdomen, passed flatus but could not open her bowel – gradually, the abdomen became distended and she became very emotional and distressed to the point of becoming quite wet from perspiration. With the continuing abdominal pain and tenderness, particularly the inability to have bowel motions, Dr R Wilson of Lingard Private Hospital arranged for x-rays of the plaintiff’s abdomen which were forwarded on 21 January 2003 for interpretation to Dr Geraldine Long, a radiologist. In the meantime, Dr James Holley, a consultant surgeon, examined the plaintiff late on 21 January 2003 on referral by Professor Ghabrial and Dr Mayers and found an acute abdomen and dehydration with a high temperature and elevated pulse rate. Dr Holley proceeded to rehydrate the plaintiff with fluids overnight, together with antibiotics, and on review the next morning considered peritonitis was present and, so, took her to surgery about 12 noon that day to perform a laparotomy with a defunctioning caecostomy. A colostomy bag was fitted.

6 Post-surgery, the plaintiff again experienced emotional stress and became delusional about the treatment received in the hospital - she had thoughts the nursing staff were plotting drug deals and became fearful of their attitude towards her. On 25 January 2003 she was transferred to John Hunter Hospital where psychiatric assessment was arranged in a situation where the plaintiff was increasingly becoming overwhelmed by her situation. She was discharged from John Hunter Hospital on 30 January 2003 into the care of Dr Mayers. Dr Holley reviewed her on 6 February 2003 and by 27 March 2003 noted that the caecostomy had closed of its own accord but a hernia had developed. On 29 April 2003 a barium enema by Dr Albert Gutmann, a radiologist, showed there was no abnormality in any part of the bowel and no evidence of inflammatory bowel disease. Dr Holley on 20 May 2003 at Hunter Valley Private Hospital surgically closed the internal and external wounds; on 25 June 2003 he saw the plaintiff and found healing to be complete so that she was discharged from his care.

7 During the period of four months after discharge from John Hunter Hospital on 30 January 2003, the plaintiff found considerable difficulty in the management of her home care, particularly with the need to regularly clean herself and change the colostomy bag. She relied principally on her husband to do this two or three times a day but her daughter assisted from time-to-time; much of the time was spent in bed and her meals and personal hygiene were attended to by her husband or daughter – the problem concerned her need to learn to walk again due to the spinal surgery and even for help in getting out of bed because of abdominal pain from the laparotomy. Although instruction was given at John Hunter Hospital to the plaintiff and her husband as to changing the colostomy bag, the actual process proved difficult and messy; spillages occurred requiring frequent cleaning of bed linen and fitment of a fresh bag. A community nurse visited the plaintiff on a few occasions to check on progress and was reported to have commented that the plaintiff’s husband “was doing a mighty fine job”.

8 The most concern the plaintiff had, during the period before the stoma was closed by Dr Holley and the colostomy bag removed, related, as she said, to “my stomach, my back, and just the way I was feeling in general”. Another concern was that her weight reduced from 80 kilograms before the surgery by Professor Ghabrial to around 60 kilograms when Dr Holley closed the stoma; the lowest weight after the abdominal surgery was 56 or 57 kilograms but she now weighed 64 or 65 kilograms. Of importance too for the plaintiff was that before her latest surgery she enjoyed cooking and food preparation but since then she had lost all interest in food and did not enjoy eating. Now, the plaintiff said she ate only once daily and with the aversion to food could not prepare meals for the family or do the shopping. As to her capacity to return to employment, such as the bus driving she had done before, the plaintiff saw no impediment from her back condition but otherwise said problems were created by “the way my stomach carries on through the day … the reaction to the foods that I eat to stressful events”. Those problems were identified by her in evidence in these ways:

“It doesn’t matter what food I put in my mouth. I instantly have a reaction to my stomach where it swells and I have sensations of nausea and a bloating and a very discomfort feeling, and depending on stressful events, I’m driving I tend to be very jittery and I need to pull over and regather myself to the emotions that I occur when these stressful events happen.
…
It (stomach) swells noticeably to the point where I have to be careful in the clothing that I wear daily.
…
Revolting smells (from the passing of wind). I have the embarrassment of being around people with the belching and the breaking of wind.
…
I tend to get the diarrhoea … it will just happen and I need to use the toilet facilities on any number of occasions through the day, depending on events – stressful events that might occur.

…

Well, if I go out in society I would average them (panic attacks) once every time …
…
I thought I was a confident person, very approachable and very easy to get along with. I had a lot of trust in people … [Now] I don’t trust anybody … I second-guess everything which does affect my driving because I haven’t got that confidence any more.
…
Before I could control my emotions, now I can’t. I can go from feeling very angry or crying uncontrollably. I’ve lost the control.
…
It’s a lot worse at the moment … my stomach is like a volcano in there that’s ready to erupt with – every day, and it feels like I’ve got butterflies in there flapping inside my stomach.
…
It can go from one extreme to the other and I can be quite constipated and the onset of having to deal with something the diarrhoea just takes over.
…
I have experienced pain up my rectum when it’s in a spasm … I had the very tightness of my whole stomach, I have experienced pain on the right lower side of my abdomen, very sharp pain in that area. I have a burning sensation and a, it contracts and it feels like it just gets tighter and tighter and it starts to grow and in getting bigger – my stomach.
…
[It happens daily]. It interferes with the comfortability of my driving with the seatbelt and, just to know, well, unwell, and over, a feeling of unwell which I need to pull over and get out of the car and actually try and relieve some wind.”

9 Notwithstanding the nature of the abdominal and emotional problems as identified by the plaintiff, as well as the pre-existing back problems, she agreed to being the present holder of a driving licence. In answering questions on the licence renewal application form on 21 July 2001 and on 20 June 2006 she agreed she answered “No” to the question whether she had any “physical, medical or mental disabilities which may affect your driving”. Further, she admitted to being a heavy user of marijuana both before and after the surgery performed by Dr Ghabrial and, indeed, in the period up to 2006 she had used the drug to relieve her chronic back pain. However, and although accepting that the use of marijuana would make it very dangerous to drive a bus, the plaintiff acknowledged that in the 20 June 2006 licence renewal application she said she did not regularly use drugs of addiction which may affect her driving.

10 It is noteworthy that on discharge from John Hunter Hospital on 30 January 2003 the hospital’s referral for community agency nursing stated the plaintiff was “self caring with light assistance” as to daily living activities - she denied that and maintained she could do “virtually nothing” at that time. Even so, the hospital psychiatry notes for 30 January 2003 stated the plaintiff had “some anxiety about managing at home … mood tearful [and] fragile”.

11 The plaintiff had been reviewed by a number of medical practitioners in connection with the present proceedings as to her condition and problems over the years. For instance, she was examined on 16 May 2006 by Dr Seamus Dalton, a consultant in rehabilitation medicine, who, in a report dated 1 August 2006 recorded the existence of carpal tunnel syndrome in both wrists and where surgery was performed on the right wrist some years previously and for the last two weeks had slept with resting night splints. Dr Dalton noted the two previous incidents concerning her back in 1992 and 1993 and consequent surgery by Professor Ghabrial and the bowel surgery by Dr Holley in 2003. Significantly, he recorded that the plaintiff “does no housework but has not done any significant housework since 1994/95. … gets help from her daughter” – the plaintiff agreed but then qualified her answer by saying her daughter assisted “on certain days”.

12 On 10 January 2003, about two weeks before the abdominal surgery by Dr Holley, the plaintiff was seen by Dr James Evans, an orthopaedic surgeon, in connection with her workers compensation case for the back injury. In his report of the same day, Dr Evans recorded the plaintiff’s history and current problems as involving her “doing some things at home, but was getting assistance from her children with the housework … she lives in a three bedroom house with three others. She tidies the house, but people do their own cooking … she does the washing. She does not do the vacuuming. … Scrubbing and cleaning is done by her daughter, who lives nearby”. Dr Evans opined that the plaintiff was unfit for her pre-injury duties and would for “practical purposes … probably be unemployable”. He noted present complaints of pain and aches in the lumbosacral region, buttocks and thighs, together with pain from time-to-time between the shoulder blades, upper thoracic region, arms, hands, fingers, thumbs and wrists; she currently took pain medication in the form of Oxycontin. At most, Dr Evans considered the plaintiff fit for half-time receptionist work.

13 Daryl James Hawes, the plaintiff’s husband, confirmed her lower back injury in the early 1990s and her driving buses during the Olympic Games in Sydney and afterwards as a relief bus driver, including her desire to buy a bus and do contract driving. Mr Hawes said the anticipated driving was for three hours a day and he was willing to relieve his wife at times she was unable to drive because of a problem. In the period of a few months following the surgery to the back and abdomen in January 2003, Mr Hawes related how he cared for the personal needs of the plaintiff, including changing the colostomy bag two or three times a day, and, with his daughter, cooking meals and transporting her to medical appointments. The loss of his wife’s love of cooking was emphasised by Mr Hawes who said the loss continued to this day to the point where she “couldn’t stand the sight of food”. Changes in the plaintiff’s social interaction were noted and her “hate” for shopping and of being embarrassed in the company of other people because of her condition. As to the plaintiff’s back, after the January 2003 operation by Professor Ghabrial, Mr Hawes said she experienced ongoing problems with pain on a daily basis; as he said, “her back is still a problem to her at different times”. With his wife becoming very difficult to live with and ongoing arguments about trivial matters, Mr Hawes and the plaintiff separated in March 2006 but with the hope of a reconciliation.

14 It is plain that before the abdominal surgery the plaintiff had a disabling condition from the carpal tunnel syndrome in her wrists and from the injury to her lower back as dealt with in the report of Dr Evans. It would be less than complete in reviewing the background to what occurred after the abdominal surgery not to consider her previous mental state. On 29 March 2005, she was seen by Dr Gregory Steele, a psychiatrist. In a report dated 4 April 2005 Dr Steele took a very detailed history from the plaintiff and examined the clinical notes covering the January 2003 period in Lingard Private Hospital and John Hunter Hospital for the purpose of reporting on her mental state as it related to medical problems from 14 January 2003. Dr Steele considered the plaintiff suffered a post-operative delirium during the stay in Lingard Private Hospital which was accompanied by cognitive impairment with confusion and auditory hallucinatory phenomena and delusional beliefs she was going to be harmed associated with intense terror and fear. He diagnosed post traumatic stress disorder with symptoms consistent with major depressive illness. Relevantly, Dr Steele said the plaintiff subjectively attributed her symptoms of depression “to constant lower back pain, constant abdominal pain” and he assessed her as being mildly impaired in social and recreational activities and in concentration, persistence and pace; he assessed moderate impairment in self-care and hygiene, travel, social functioning and adaptation to employment situations. As to the last-mentioned aspect, Dr Steele considered with her lack of trust in people and motivation that the plaintiff was “not … able to work at all in the same position that she has done previously or certainly drive the mini bus as she was doing in the year 2000”.

15 It was, it seems to me, significant in Dr Steele’s assessment of the plaintiff that he found the symptoms then being experienced (of doom, a bad omen, socially withdrawn, lack of motivation, life with no purpose, thoughts of suicide and loss in appetite and weight) were “very similar to what she had on and off throughout 1994 to 1997 during which time she said she had treatment with antidepressants”. In the result, Dr Steele concluded an assessment of the plaintiff’s whole person impairment from the psychiatric illness of post-traumatic stress disorder and depression of 17 per cent of which about one-third (5 to 6 per cent) would be attributable to her abdominal condition.

16 Dr Lisa Brown, a consultant forensic psychiatrist, examined the plaintiff on 16 May 2006 and in her report of 19 May 2006 reviewed extensively the plaintiff’s background information; past medical history; current medications; forensic history; drug and alcohol history; family history; developmental history; premorbid personality and past psychiatric history; history of back-related problems and surgery; alleged physical sequelae; alleged emotional sequelae; effect on occupational relationship and leisure functioning; psychological/psychiatric interventions; intercurrent psychosocial stressors; and mental state. Dr Brown had access to Dr Steele’s report of 4 April 2005 and to Dr Mayers’ clinical records back to January 1999. She expressed the following opinion:

“Based on the information provided by Ms Hawes and on the documentation available to date, it is my opinion that this plaintiff has possibly experienced a part contribution to the maintenance of a pre-existing Chronic Depressive Disorder, in the post-operative period since January 2003, related both to emotional distress regarding the operative complications and to persisting abdominal symptoms, whether these are related to post-operative complications or have occurred independently. However, the majority of Ms Hawes’ emotional complaints in the post-operative period have been considered as likely to reflect contributions from a pre-existing Depressive Disorder, a pre-existing Chronic Pain Disorder related to her lower back injuries and the intercurrent of problematic use of alcohol and marijuana.”

17 Dr Brown agreed with Dr Steele’s conclusions generally and, in particular, with his view that “multiple factors are likely to have been contributing to the plaintiff’s Mood Disorder, including her pre-existing lower back pain condition. … the majority of her ongoing depressive symptoms relate to independently occurring factors include the well established and chronic nature of her previous depression and Chronic Pain Disorder, the persistence of chronic lower back pain symptoms and the supporting medical records indicating recurrent attendances for this difficulty and intercurrent family problems also appearing during this period of time, including a rift having developed in the relationship with her eldest son”. Dr Brown further concurred with Dr Steele that “possibly only around one-third of her Mood Disorder in recent years might be attributable to her ongoing abdominal condition”. In that respect, Dr Brown reasoned by reference to the delirium as being unlikely to have contributed to ongoing depressive symptoms or a psychiatric condition of its own, the independently contributing factor of chronic carpal tunnel syndrome symptoms and with then current significant pain in one hand, experience of chronic urinary tract difficulties requiring catheterisation, back symptoms, depression, family difficulties and various other health problems that at least 70 per cent of the plaintiff’s mood disorder resulted from them and the remaining 30 per cent had arisen as a result of the abdominal complaints. Also, Dr Brown pointed to the excessive alcohol consumption and marijuana use as contributing to the development of the plaintiff’s depressed mood.

18 Given the elapse of time, Dr Brown considered the plaintiff’s emotional difficulties in response to the surgical complications had probably reached their maximum and that her ongoing emotional state was likely to represent a return to her baseline level of pain and depressive type complaints more related to her pre-existing underlying condition rather than to the surgical complications. The prognosis was seen as poor.

19 The picture which thus emerges, in my overall view of the background facts, is that before the abdominal surgery by Dr Holley in January 2003 the plaintiff had pre-existing multiple physical and emotional problems, as I have endeavoured to outline above. That provides the context in a consideration of what then occurred with the abdominal surgery on 22 January 2003 and its aftermath.

The claim and the defence

20 The plaintiff sued Dr Holley as the first defendant and Dr Long as the second defendant in negligence for damages for breach of the duty of care each owed to exercise due care and professional skill in providing their respective services to the plaintiff. However, on 16 May 2008, by consent, a verdict was entered for the second defendant against the plaintiff with each party to bear her own costs. The proceedings so continued against the first defendant, Dr Holley, as the sole defendant. The plaintiff pleaded that the first defendant was negligent in that he:

“(a) failed to diagnose that the Plaintiff was suffering from ACPO (acute colonic pseudo-obstruction);

(b) diagnosed the Plaintiff as suffering from PI (paralytic ileus) rather than ACPO;

(c) invasively treated the plaintiff for PI by laparotomy and the establishment of a defunctioning caecostomy in circumstances where both procedures were unnecessary;

(d) failed to treat the plaintiff for ACPO properly, or at all, by use of Neostigmine or colonic decompression by colonoscopy or percutaneous endoscopic colostomy; and

(e) failed to further investigate the Plaintiff’s condition by CT, or follow-up examination, to establish the correct diagnosis.”

21 Damages were sought by the plaintiff by reason of the first defendant’s alleged negligent breaches of duty in respect of non-economic loss, out-of-pocket expenses, domestic assistance, economic loss and loss of superannuation benefits. The total damages claimed amounted to $401,704.81. However, consistent with the approach in Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 at 645, it was accepted for the plaintiff, correctly in my view, that any damages assessed would need to be reduced to take account of the chance that her injury or damage would have occurred in any event and regardless of the first defendant’s negligence. Given on the evidence that the use of neostigmine had an 87 per cent chance of success, it was put that that represented the measure of the lost chance so that any reduction should be no more than 13 per cent – resulting in net damages claimed of $349,483.18.

22 For the first defendant, and although it was admitted he owed the plaintiff a duty of care, any negligent breach thereof was denied as was the injury, loss and damage said to be suffered by the plaintiff. If, however, the plaintiff were to succeed on liability then it was put for the first defendant that the award of damages should be limited to non-economic loss, past and future out-of-pocket expenses and past domestic care (thus excluding past and future economic loss and future domestic care) in the total sum of $69,442.53. Allowing a reduction to the order of 26 to 30 per cent for loss of chance, any resultant damages should be within the range of $48,609.77 to $55,554.03.

23 If, against the submission made for the first defendant, an amount were to be awarded for future economic loss, then it was said such award should be reduced by, say, $10,000 to recognise the payments received by the plaintiff on the settlement of her workers compensation proceedings relating to the injuries to her back at work in December 1992 and October 1993. On 18 November 2004 those proceedings were finalised by a deed of release under which the plaintiff was to receive from Inghams Enterprises an amount of $135,000 in respect of general and other damages. It was put by the first defendant’s counsel that the lump sum must have included a commutation in a significant amount, about $60,000, of the weekly workers compensation benefits originally awarded to the plaintiff by Johns CCJ on 9 March 1995 and continuing thereafter. On the authority of Rooty Hill Medical Centre v Gunther [2002] NSWCA 60 in para [15] and cases cited therein, for the proposition that a worker’s damages must be reduced to give effect to the overriding intention of Parliament that there should not be an entitlement to both compensation and damages, counsel put that a reduction should be made. However, counsel conceded that if the assessment here as to future economic loss related only to the bowel injury and nothing else, then no deduction should be made. It was common ground, as in Rooty Hill Medical Centre, that s 151Z of the Workers Compensation Act 1987 did not apply to the present case.

24 I do not doubt the correctness of the proposition as stated by counsel for the first defendant, but, as the plaintiff’s counsel explained, the claim for future economic loss was not for total incapacity but for three hours per day for three days a week being the residual loss of capacity as a result of the injury from the abdominal surgery and not anything to do with the pre-existing incapacity from the back injury. On that basis, and in light of the concession made for the first defendant, I would not propose to make any reduction on this ground from an award as to future economic loss – any such assessment, I think, is to be made referrable to the bowel condition which is, in my view, to be seen as separate and distinct from the back injury.

25 The claim falls to be determined pursuant to the provisions of the Civil Liability Act 2002 and, specifically, s 5O thereof as to the standard of care for professionals.

Issues for determination

26 The proceedings occupied eight hearing days and there was comprehensive and detailed expert medical evidence, both oral and documentary, going to the liability of the first defendant which was argued as the major issue. Notwithstanding the breadth of the material, in a very real sense liability reduces to the short, but perhaps deceptively simple, question: whether the first defendant was negligent on first examining the plaintiff on the evening of 21 January 2003 in not administering the drug neostigmine to decompress the distended caecum by unblocking the apparent obstruction and so avoid the surgical procedure of laparotomy with defunctioning caecostomy on 22 January 2003 with its consequent complications of injury to the plaintiff causing her loss and damage. In so stating the issue, it is critical, I think, to understand it was common ground that by the morning of 22 January 2003 the appropriate medical course was the surgical intervention because by then signs of the presence of peritonitis were seen; in such a situation of suspected peritonitis, the use of neostigmine was contraindicated due to the risk of it precipitating perforation of the bowel by causing contractions with a resultant significant mortality rate.

27 A resolution of this primary question on liability necessarily involves whether the first defendant’s evidence as to his claim that signs of peritonitis were seen on 21 January 2003 should be accepted. If so, then, as I understand the respective cases put, the first defendant must succeed with a verdict in his favour. However, if the first defendant’s evidence that he detected signs of peritonitis on 21 January 2003 not be accepted then a secondary issue arises as to whether it was, even in that circumstance, necessary to attempt neostigmine treatment before proceeding to laparotomy.

28 Intruding into the primary and secondary issues as above-stated, and about which there was much evidence, was whether the first defendant on 21 January 2003 should have diagnosed acute colonic pseudo-obstruction (ACPO) rather than paralytic ileus (PI) secondary to spinal surgery with a differential diagnosis of peritonitis secondary to an infective problem such as appendicitis or diverticulitis. The significance of such a misdiagnosis, which was said by the plaintiff to sound in negligence, was to lead to mismanagement by persisting with conservative treatment for PI, a general inflammation of the bowel after surgery, rather than relief of the ACPO by the use of neostigmine – in the result, as it was claimed, the conservative treatment overnight on 21 January 2003 allowed the fulminant development of peritonitis by the morning of 22 January 2003 by which time there was a surgical emergency requiring a laparotomy. Even so, this further issue also depends upon acceptance of the first defendant’s evidence that the plaintiff on 21 January 2003 had signs of peritonitis; if that be so, it was common ground on the evidence that even with ACPO the appropriate course where there were signs of peritonitis was a laparotomy without attempting the use of neostigmine thereby risking a fatal perforation of the bowel.

29 In essence, then, the primary issue of liability is dependent upon the pure question of fact whether there were signs of peritonitis on 21 January 2003 when the first defendant examined the plaintiff. If there were, the plaintiff’s present action must fail; but if there were not, it will be necessary to determine whether the appropriate treatment was the administration of neostigmine before proceeding to laparotomy. In that latter situation, the diagnosis of either ACPO of PI will be important in considering the course of treatment followed by the first defendant.

30 As to damages if liability in the first defendant be found, only past out-of-pocket expenses were agreed. The remaining claims were vigorously contested, particularly as to past and future economic loss (including loss of superannuation benefits) and future domestic care where any award at all was opposed.

31 Finally in identifying the issues, it is perhaps helpful to emphasise that this case was not concerned with any alleged failure on the first defendant’s part properly to warn or advise the plaintiff about the proposed laparotomy procedure she was offered or of the risks and complications involved. Although she had no present recollection, the plaintiff accepted she signed on 22 January 2003 the witnessed consent form for the laparotomy. The case concerned the diagnosis and treatment by the first defendant on 21 January 2003 in proceeding conservatively overnight rather than the administration of neostigmine until it was too late by the morning of 22 January 2003 when surgery was necessary.

Proper approach to the issues

32 Prior to the enactment of s 5O of the Civil Liability Act in Div 6 – Professional Negligence of Pt 1A thereof, the standard of care applicable to a medical practitioner in the treatment of patients not infrequently gave rise to issues whether deference should be afforded to opinions within the medical profession. A generally adopted approach was stated by McNair J sitting with a jury in England in Bolam v Friern Hospital Management Committee [1957] 1 WLR 582. His Lordship put it this way (at 587) in directing the jury:

“… that he (the doctor defendant) is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art. … a man is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion who would take a contrary view.”

33 In Australian terms, however, the High Court in Rogers v Whitaker (1992) 175 CLR 479 rejected the Bolam approach and referred (at 492) to the content of the duty being “to exercise reasonable professional skill and judgment”. In other words, it was for the court to determine the standard of care but where evidence of acceptable medical practice was “a useful guide” (at 487) and responsible professional opinion could “have an influential, often a decisive, role to play” (at 489). Section 5O was inserted into the Civil Liability Act by the Civil Liability Amendment (Personal Responsibility) Act 2002 with the apparent intention of establishing a modified Bolam rule. The section states:

“5O (1) A person practising a profession (a professional) does not incur a liability in negligence arising from the provision of a professional service if it is established that the professional acted in a manner that (at the time the service was provided) was widely accepted in Australia by peer professional opinion as competent professional practice.

(2) However, peer professional opinion cannot be relied on for the purposes of this section if the court considers that the opinion is irrational.

(3) The fact that there are differing peer professional opinions widely accepted in Australia concerning a matter does not prevent any one or more (or all) of those opinions being relied on for the purposes of this section.

(4) Peer professional opinion does not have to be universally accepted to be considered widely accepted.”

34 The operation of s 5O was considered by the Court of Appeal in Dobler v Kenneth Halverson [2007] NSWCA 335 in which Giles JA, with whom Ipp and Basten JJA agreed, said (in paras 59 – 61):

“59. Section 5O was amongst the tort law reforms consequent on the Review of Law of Negligence Final Report, September 2002 (‘the Review’) . It was intended to introduce a modified Bolam principle. Its importance does not lie so much in questions of onus of proof as in who determines the standard of care. Commonly … there will be expert evidence called by the plaintiff to the effect that the defendant’s conduct fell short of acceptable professional practice and expert evidence called by the defendant that it did not; the expert evidence may or may not recognise that the opposing professional practice is one which has some currency. Apart from s 5O the Court would determine the standard of care, guided by the evidence of acceptable professional practice. It would not be obliged to hold against the plaintiff if the defendant’s conduct accorded with professional practice regarded as acceptable by some although not by others. Section 5O has the effect that, if the defendant’s conduct accorded with professional practice regarded as acceptable by some (more fully, if he ‘acted in a manner that … was widely accepted … by peer professional opinion as competent professional practice’), then subject to rationality that professional practice sets the standard of care.

60. In this sense, s 5O provides a defence. The plaintiff will usually call his expert evidence to the effect that the defendant’s conduct fell short of acceptable professional practice, and will invite the court to determine the standard of care in accordance with that evidence. He will not be concerned to identify and negate a different professional practice favourable to the defendant, and s 5O does not require that he do so. The defendant has the interest in calling expert evidence to establish that he acted according to professional practice widely accepted by peer professional opinion, which if accepted will (subject to rationality) mean that he escapes liability.

61. … Section 5O may end up operating so as to determine the defendant’s standard of care, but the standard of care will be that determined by the court with guidance from evidence of acceptable professional practice unless it is established (in practice, by the defendant) that the defendant acted according to professional practice widely accepted by (rational) peer professional opinion. To require the plaintiff to establish the negative would significantly distort the language of s 5O(1), and would not be consistent with the reference in s 5O(2) to reliance on peer professional opinion for the purposes of the section – the plaintiff does not rely on it in order to negate a liability in negligence.”

35 Counsel for the first defendant submitted the essence of the defence was, pursuant to s 5O, that he acted in a manner which was widely accepted in Australia by peer professional opinion as competent professional practice in not administering neostigmine on the afternoon/evening of 21 January 2003 and in treating her surgically via a laparotomy with defunctioning caecostomy; that was because the plaintiff demonstrated signs of peritonitis. Counsel went to far as to submit, even on the plaintiff’s expert evidence, that it would not only be acceptable practice not to administer neostigmine where the attending doctor had detected signs of peritonitis but it would be a breach of the attending doctor’s duty of care to so administer neostigmine; neostigmine caused powerful bowel contractions and could precipitate bowel perforation in a patient who already had peritoneal signs with the consequent significant risk of death.

36 For the plaintiff, counsel accepted a suspicion of peritonitis on her expert evidence would be, as I have said earlier, a contraindication for the use of neostigmine and surgery would be the appropriate course. Further, the plaintiff’s expert evidence was that it would not have been in the circumstances a breach of standards of competent practice for a surgeon not to treat her by the alternatives of colonic decompression by coloscopy of percutaneous endoscopic colostomy. Also, given any misdiagnosis by the first defendant of PI rather than ACPO, the plaintiff’s expert evidence was that if peritonitis were suspected then even for ACPO the use of neostigmine was contraindicated and surgery by laparotomy was the appropriate course.

37 Thus, in applying the proper approach to determine whether the standard of care here had been breached by the first defendant, guided by the expert evidence, and, even if that be so, whether s 5O provided a sufficient defence, one returns to what I have described as the “pure question of fact”, namely, on the evening of 21 January 2003 did the first defendant as the attending practitioner suspect the presence of peritonitis – if he did, then, it seems to me, on the approach I should adopt, it is ineluctable he will avoid liability; if he did not, then it will be necessary to consider whether the conservative treatment then given without the use of neostigmine was a breach of the ordinary standard of reasonable professional care and, to the extent necessary, whether a s 5O defence had been established.

Attendance on plaintiff by first defendant – diagnosis and treatment

38 The first defendant was asked, by whom is not clear but probably by a doctor (intern or resident medical officer) of Lingard Private Hospital, to see the plaintiff as she had been experiencing abdominal pain since 19 January 2003 while recovering in the hospital following the spinal surgery by Dr Ghabrial on 14 January 2003. He first attended the plaintiff at about 4.00pm on 21 January 2003. Although he had no independent recollection of treating the plaintiff, the first defendant said that “after some time I got more and more recollections as I’ve gone along” from his own notes and hospital records so that he was able to describe what the position was and his actions by reference to his usual practice. He had visiting rights to practice at Lingard Private Hospital as a general surgeon and routinely was requested by one of the interns or resident doctors to see a patient where a problem arose.

39 After graduating in medicine from The University of Sydney in 1970, the first defendant obtained his Fellowship as a specialist surgeon in 1976 and thereafter practised as such at various hospitals in the Newcastle area, including Lingard Private Hospital, NIB Hospital and Hunter Valley Hospital and as a consultant surgeon at the Mater Hospital. Abdominal surgery was a major part of his practice and he saw about 1,000 such patients a year. He retired from continuous practice in October 2006.

40 The evidence of the first defendant as to his usual practice was that in relation to a patient he would speak to the resident medical officer and nursing staff and review the hospital notes being the clinical records, observation sheets and fluid balance charts; he said he would have done so in the plaintiff’s case. After seeing a patient on completion of the examination his practice was to walk out of the patient’s room, gather his thoughts and dictate a note for his records (he did not usually dictate a note from a telephone report of a patient but only if he had seen the patient); in the plaintiff’s case, he said he would have followed this procedure. Thus, the relevant records in this case as to the plaintiff’s treatment cover the hospital records, the first defendant’s own notes and the letters he sent to other doctors and to the plaintiff’s employer.

41 The developments in the plaintiff’s condition leading to the first defendant being asked to see her may be found from the following extracts in the hospital notes -

DATE

OBSERVATIONS

18/1/03

At 2.30pm no bowel motion but flatus passed.

At 8.45pm observations stable, tolerating light diet and fluids.

19/1/03

At 6.00am abdomen appeared distended with complaint of tenderness in abdomen – suggested only take ice chips and small amount of water as bowel sounds very occasional and only slight.

At 11.40am passing flatus but abdominal pain settled.
At 10.00 pm passing flatus but bowel not opened; abdominal pain

20/1/03

At 4.40am abdominal discomfort; tolerating clear fluids and urine clear.

At 11.00am tolerating light diet, passed flatus but still complaining of abdominal discomfort.

21/1/03

At 1.00am complained of severe abdominal discomfort, abdomen distended and no bowel movements; no flatus passed – for review soon as possible.

At 1.30am Dr Lambert (an intern or a resident medical officer) reviewed as flatus not passed, burping and distended abdomen and complaint of abdominal pain. On examination found distended abdomen and right-sided tenderness but no rebound tenderness; occasional bowel sounds – plain intravenous fluids and nil by mouth until bowel clearly working again.

At 3.00am abdomen remains distended.

At 11.50am in severe abdominal discomfort, passing small amounts of flatus only.

Dr Wilson (probably a resident medical officer) contacted at 9.30am, 10.30am, 11.30am and 11.55am concerning deterioration and abdominal pain due to large distension; morphine for pain had little effect.

Dr Wilson examined and noted bowel not opened since before spinal surgery; found unwell with abdominal distension, generalised abdominal pain worse right lower quadrant and fever; noted no bowel sounds; rebound tenderness present; query appendix. Nasogastric tube feeding commenced at 2.00pm and x-rays requested.

At 2.10pm message left with Dr Ghabrial’s secretary to notify events.

At 4.00pm first defendant called and saw plaintiff. Noted abdominal pain since 19/1/03 and particularly in lower abdomen; on examination found distended abdomen and dehydration with a diagnosis of PI secondary to surgery – rehydration directed with review in 2 hours.

Nursing notes show at 4.00pm plaintiff seen by first defendant and present care to continue. At 6.00pm notes state “see previous entry from Dr Holley”.

At 7.30pm first defendant telephoned to enquire of plaintiff’s condition and directed “continue all care and half hourly observance, observe patient very closely and ring Dr Holley with any concerns”. Plaintiff moved at 10.30pm to single room near nurses’ station and husband stayed overnight.

22/1/03

At 5.15am noted intermittent sleep overnight. Abdomen remained tender to touch and distended with no bowel sounds.

At 6.00am seen by first defendant and surgery by way of laparotomy and caecostomy arranged for 12 noon.

42 After first seeing the plaintiff at 4.00pm on 21 January 2003, the first defendant’s records contain the following note:

“I was asked to see Deborah Hawes of 28 Yanco Crescent TORONTO, who was admitted under Jo Ghabrial and had an operation on the 16th (sic-14th) for a spinal fusion. She developed abdominal pain and distension on the 19th and has been seen by several doctors since that time. In taking her history that pain has been constant and her abdomen is distended. It started in the night iliac fossa and now it is over the left iliac fossa. She has got a past history of having two caesers. Examination shows that she has got a pulse rate of approximately 100, a temperature of 38°C. She looks dehydrated with a dry tongue and she has got very concentrated urine. On examination of her abdomen she has got a distended abdomen with rebound tenderness in the whole of the lower abdomen and the x-rays show that she has got a profound ileus with very distended small bowel. My working diagnosis, she has got an ileus, which I think is secondary to her spinal surgery. I am worried that it may be secondary to some infective problem, such as an appendicitis, or diverticulitis. I do not think that it is, despite her temperature and her pulse. I think that the x-ray is showing a very distended abdomen a diagnostic of that ileus would not expect to see them with appendicitis or diverticulitis. I have organised to review her in two hours time. They are going to get a lot of fluid into her and give her some Pethidine and we will see how she goes.”

43 A later note in his records, presumably I think after the second defendant reviewed the plaintiff around 6.00pm that day, stated:

“Mrs Hawes has still got that acute abdomen. I have got to see how she is in the morning. She is crook and I think that I should be operating on her fairly soon.”

44 On 22 January 2003, no doubt after the first defendant reviewed the plaintiff that day at 6.00am, his notes recorded:

“Mrs Hawes has got this peritonitis and she needs a laparotomy.” (my emphasis)

45 The surgery was then performed at 12 noon. For present purposes, then, the critical period in the first defendant’s conduct was from his diagnosis of the plaintiff at 4.00pm on 21 January 2003 to 6.00am on 22 January 2003 when surgery became necessary once peritonitis was firmly diagnosed. That, as suggested earlier, leads to the question whether neostigmine should have been administered on the evening of 21 January 2003 to relieve the abdominal problem so as to attempt an avoidance of surgical intervention.

46 The reference to an x-ray in the first defendant’s notes on 21 January 2003 after first seeing the plaintiff likely refers to the x-ray arranged by Dr Wilson that afternoon. Although the first defendant had no recollection of discussing the x-ray findings with Dr Long or of seeing her report, it is clear that at least he had access to the x-ray in making his assessment of the plaintiff’s condition and found it showed “a profound ileus with very distended small bowel”. Dr Long initially in her evidence had no recollection of reviewing and interpreting the x-ray of the plaintiff’s abdomen but, on reading her report dated 21 January 2003 to Dr Wilson of the films taken that day at the hospital, she did recall the process followed and her observations at the time. The report stated:

“There is significant dilatation of the large bowel extending from caecum to mid transverse colon. Air is also noted within non-distended descending colon and rectum. Mildly dilated loops of small bowel noted in the left upper quadrant. The bowel gas pattern would suggest an element of partial large bowel obstruction at the level of the mid transverse colon. Alternatively, given that the patient is currently passing air, this may represent an atypical pattern of paralytic ileus. Clinical correlation and/or repeat examination suggested.

Lower lumbar pedicular screws and skin staples noted from recent surgery.

Above findings have been discussed with Dr Holley.”

47 Dr Long said she rarely talked to doctors about films she reported on and only did so when she considered the patient “had a potentially life-threatening condition”. It was for that reason she contacted the first defendant as the attending surgeon for the plaintiff. She said the discussion with him was to the following effect:

“My findings would indicate, first of all, there is significant dilatation of the right colon, air still present in the left colon, though not distended, and there were some dilated loops of small bowel in the left upper quadrant. That’s what I would have described to Dr Holley over the phone and I would have asked him pertinent clinical questions to help me narrow my differential diagnoses. I would have said, ‘James, the alternatives are there is a partial obstruction at the level of the transverse colon or it is an unusual type of ileus that’s localised to the right colon. Can you give me any information that would assist’. I would have said, ‘Are there signs? What are the clinical findings? What are her symptoms?’ I would have asked for pertinent surgical and medical history for this patient and I would have asked him, if he did not know, to please reassess this patient on the ward as I was concerned for her.
…

… I would have stressed in this case that I was fairly concerned or very concerned about the caecum because its outline crossed the midline, to me which means it was significant, and there was a potential risk for perforation. That would have been the gist of my conversation; ‘Please assess. She’s at potential risk of perforation.’”

48 As to the significant factor of the extent of dilatation of the caecum, Dr Long said there was controversy in the medical literature of the cut-off mark to put a patient at risk of perforation but most doctors would consider 12 centimetres to be appropriate. In this case, Dr Long measured in the witness box from the x-rays the dilatation of the caecum at 14 to 14.5 centimetres and it was this aspect which she thought put the plaintiff at risk of perforation requiring her to so inform the first defendant. In the result, Dr Long, as her report suggested and as she told the first defendant, confirmed in evidence her interpretation of the x-ray as showing the plaintiff has “either got a partial bowel obstruction (a mechanical obstruction) … or … an unusual form of ileus (pseudo-obstruction).” She emphasised too that the x-ray showed a classic demonstration of ACPO but she did not use that term to describe the possible pseudo-obstruction because she believed it was a diagnosis of exclusion one made in retrospect; that is, as she said, “you have to exclude mechanical obstruction before you make a confident diagnosis of ACPO”.

49 Specifically as to the initial examination of the plaintiff from the records, the first defendant gave this evidence:

“Q. Can you tell us by reference to the hospital records, and your records, what the results of the examination were?
A. She had a pulse of approximately 100, temperature of 38. She was dehydrated, a dry tongue, and she had very concentrated urine. And then that distended abdomen with rebound tenderness in the whole of the lower abdomen.

Q. What do you understand ‘rebound tenderness’ to be?
A. That’s peritonitis.

…

Q. And if rebound tenderness is found, what does that indicate has occurred?
A. Peritonitis.
…
Q. And where you’ve indicated that you detected rebound tenderness in the whole of the lower abdomen, I think your evidence was that indicated percussion across the whole of the lower abdomen?
A. Yes.

Q. Can you explain what significance or importance a finding of rebound tenderness across the whole of the lower abdomen in a patient with the history that you’ve observed or taken in relation to Mrs Hawes has?
A. I would be becoming perplexed by that, sir, because it was presented to me as a case of paralytic ileus, and that -
…

A. Peritonitis is an inflammation of the lining of the abdominal cavity.

Q. Can you explain where peritonitis develops? Is it something that develops instantaneously or is there a process by which it develops?
A. It develops slowly, and sometimes frighteningly quickly.

Q. Where you have rebound tenderness to the lower part of the abdomen, can you indicate what your concern, if any, is regarding that patient?
A. In a hypothetical patient I’m worried that they’ve got that peritonitis and I need to work out what the cause of that is and to treat it accordingly.

Q. Moving from the hypothetical patient to this patient, are you able to say what your concern, if any, was when you saw Mrs Hawes for the first time on 21 January?
A. I had alarm bells ringing because it wasn’t the typical case of paralytic ileus; there was something going on different. So, I stuck with that original diagnosis because I only just saw her – the paralytic ileus. I had my doubts, as I’ve noted in my notes there, and thought there may be some other cause for her condition.”

50 As to the concern the first defendant had about the plaintiff’s condition when he examined her, including his review of the x-rays and the abnormal white cell blood count indicating inflammation and infection, this evidence emerged:

“Q. Can you tell us what that concern or view was?
A. In a normal case of paralytic ileus the patient would be sitting comfortably – not comfortably, but bloated, but would probably be reading a book, would probably be fairly – pretty miserable but wouldn’t be in any pain. When I came to see Mrs Hawes at that time I – you know, that was the logical thing that should have been there, and when I started examining her my examination was different to what it should have been; my findings were different to the normal case of an ileus. In a case like that you put down your principal diagnosis and then you put down your differential diagnosis.

Q. In this case, what was the principal diagnosis and what was the differential diagnosis you recorded?
A. My principal diagnosis was a paralytic ileus secondary to her spinal surgery. My worrying differential diagnosis was appendicitis or diverticulitis.
…
Q. What was your concern here in terms of your principal diagnosis and your alternative diagnosis?
A. That I was making a mistake and I wasn’t picking up on something which was causing the peritonitis.

Q. When you say causing the peritonitis, is that some condition in relation to appendicitis or diverticulitis, or is that something separate?
A. No, no, they cause peritonitis as well as many other things.
…
Q. What’s the end result of it (peritonitis) if it’s left untreated?
A. Death.”

51 In the circumstances as he saw them, the first defendant formed a plan to review the plaintiff in two hours as “the best thing you can do there is to keep repeating visits to the patient until you start resolving it and getting or seeing what progress has been made”. He added that the elevated temperature and white cell count added up to peritonitis but that it was important to administer antibiotics and rehydrate the plaintiff to bring her to as normal a state as possible. Although at that stage he did not have Dr Long’s report, the first defendant was concerned his view of the x-rays showed a very distended bowel which, if it developed, would perforate and cause death. He then thought at 6.00pm on 21 January 2003 that the plaintiff with the acute abdomen and peritonitis needed surgery and considered doing that on that evening but as some improvement had been shown since 4.00pm – pulse rate and temperature had reduced somewhat – he decided to review her in the morning to see if surgery could be avoided. On review, he formed the opinion conservative treatment was not working so that there was no alternative to surgery. As he said – “She’s got this peritonitis … with a lack of progress despite all my resuscitation measures”.

52 The first defendant explained that a laparotomy involved examining the abdomen to find the cause of the peritonitis, as he said “a search – and – correct operation, basically”. At surgery he found “a very distended caecum … no sign of any volvulus or any other predisposing cause … hugely distended caecum which was losing its blood supply … v.v.v. (very, very, very) large caecum … in danger of rupture”.

53 As to the use of neostigmine to relieve the plaintiff’s condition on 21 January 2003, the first defendant said “it would’ve been totally inappropriate” because “she had rebound tenderness, signs of peritonitis” and the risk of administering neostigmine was “rupture of the bowel”.

54 Significantly, the first defendant was asked whether a diagnosis of ACPO either by him or Dr Long would have made any difference to his treatment of the plaintiff. He said it would not and added:

“Because she had signs of peritonitis. I was worried about the cause of that peritonitis. It’s extremely rare to get this subdivision of paralytic ileus called acute colonic pseudo-obstruction. That’s a very rare disease, a very rare condition, and it’s very – extremely rare for it to progress onto what has happened with Mrs Hawes.

…

…

She had symptoms and some signs – I’ve said there in my differential diagnosis that I had accepted that she had a paralytic ileus for a working diagnosis. But I was seriously concerned that there was something else going on there, such as appendicitis, diverticulitis. I just mentioned two of the things that can cause peritonitis, as well as lots of other things that can cause peritonitis.”

55 Under cross-examination, the first defendant was rigorously tested on his initial diagnosis of the plaintiff of paralytic ileus secondary to surgery and with the proposition that his entry in the hospital notes at 4.00pm on 21 January 2003 made no mention of peritonitis or rebound tenderness and that the x-rays showed a classic case of ACPO. Given, as he accepted, that his hospital notes were not perfect, he was challenged why he did not take the plaintiff to surgery at 4.00pm on 21 January 2003 if peritonitis was truly suspected. He said it was “because … I didn’t have an exact diagnosis. I had an unresuscitated patient. I was wanting to do conservative treatment and then review her. That’s why I came back in 2 hours”.

56 The first defendant agreed that the x-rays of the plaintiff showed a classic textbook case of ACPO and that it was a condition known to him as part of paralytic ileus; however, he emphasised that “the generalised form is paralytic ileus, a very small and rare sub-classification is this acute colonic pseudo-obstruction, but they all come under the same term … There’s grey areas there”. Even so, he reaffirmed his view at the time that his working diagnosis was an ileus secondary to surgery but with a differential diagnosis of peritonitis. Faced with the pre-operative diagnosis on the operation record of “? peritonitis”, the first defendant explained “that’s a preoperative diagnosis before I go in there and make the definitive diagnosis. In my mind I had a definitive diagnosis, but not until you do your laparotomy – I didn’t know what I was going to find. All I knew was I had a very sick patient”. Also, he maintained that at 4.00pm on 21 January 2003 there were signs surgery was required, being signs of peritonitis, but that did not mean “you rush to theatre straight away”.

57 Neostigmine was a drug with which the first defendant was familiar in the successful treatment of ACPO, even though he had not used it in his practice. As to its use in this case on the plaintiff, if he had diagnosed ACPO, he gave this evidence:

“Q. …If you had made the diagnosis in this case (of ACPO) --
A. No, in this case there were too many signs of peritonitis for me to even think about using Neostigmine. It would, in this case, have been totally contraindicated.

Q. The findings that you made at 4 o’clock on 21 January were not such that you considered that it was in fact peritonitis, correct?
A. I’ve already stated there were two types of peritonitis that I’ve mentioned in my notes there, which made me think it could have been peritonitis.

Q. But you immediately hastened to add in your notes, “I do not think that it is”?
A. I didn’t think that it was but I was not absolutely sure of that, sir. I was in a state of flux with a very sick patient. Things are not as straightforward as you would like them to be.
…
Q. And the treatment for paralytic ileus is conservative because it normally resolve itself. That’s right isn’t it?
A. Correct.

Q. And that’s what you did, you treated it conservatively in the hope that it would resolve itself? That’s right, isn’t it?
A. I wasn’t absolutely sure of that diagnosis. I was going down that track of treating it conservatively with the … (not transcribable) … because I thought she had either one of these other inflammatory conditions that get called peritonitis – I still had a reserved judgment on that. That’s why I came back in 2 hours time, to see her again after 2 hours. I was frightened for her. She was a very sick girl. You don’t get that in just paralytic ileus. There was something else going on that I wasn’t understanding.
…
Q. When you saw her at 6 o’clock, you reported that she’s still got that acute abdomen, namely, the one that you saw at 4 o’clock, correct?
A. Yes.

Q. And you decided at 6 o’clock that you are going to see how she is in the morning?
A. Yes.

Q. So thereby, you were treating her conservatively overnight?
A. Yes.

Q. And that is the treatment for paralytic ileus in its usual common form, isn’t it?
A. Yes, sir.

Q. If you had diagnosed peritonitis at 6 o’clock in the evening, you would’ve taken it to the theatre, wouldn’t you?
A. No, sir.

Q. Because if you were right in your diagnosis of peritonitis, and there was a ruptured organ, she could die?
A. Yes, sir.

Q. If that was so at 4 o’clock or 6 o’clock, you would’ve taken her to the theatre to save her life, wouldn’t you?
A. If it was so that she had a ruptured organ, of course I would, but it wasn’t so.
…
Q. And can I suggest to you, sir, that the simple administration of Neostigmine at 4 o’clock or 6 o’clock could have led to exactly that result; namely, no invasive surgery.
A. No, sir. Neostigmine, in the physical findings I found, was totally contraindicated.”

58 It will be apparent from the way the case was argued from the questions asked in evidence, as I have foreshadowed, that much turns on the examination and findings made by the first defendant of the plaintiff’s condition on the evening of 21 January 2003. Essentially, the thrust of the cross-examination of the first defendant was that he embellished what he found at 4.00pm on 21 January 2003 to create a situation where the administration of neostigmine was contraindicated. He denied that. However, the point is assisted in its determination by the distinction made between what the first defendant recorded in the hospital records and what he recorded in his own records dictated after examining the plaintiff – in the former there was no mention of peritonitis but simply a diagnosis of PI secondary to surgery with a distended abdomen and dehydration; in the latter, the working diagnosis was of an ileus (which includes ACPO) secondary to surgery with a concern of some infective problem (from appendicitis or diverticulitis – peritonitis) from observations of a distended abdomen and rebound tenderness in the whole of the lower abdomen.

Expert medical evidence

59 Three medical practitioners gave expert evidence in the case – for the plaintiff there was Dr Grant Wyvern Bigg-Wither, a senior staff specialist in radiology at St Vincent’s Hospital, Sydney and a visiting medical officer at St Vincent’s Private Hospital and Clinic, and Dr Brian Collopy, a specialist surgeon and presently the Director of CQM Consultants which is an organisation formed to assist health care bodies in developing programmes to assess the quality of care they provide; and, for the first defendant there was Dr Thomas Benedict Hugh, a general surgeon and Emeritus Consultant Surgeon at St Vincent’s Hospital, Sydney. Each provided reports and gave oral evidence. Relevantly, there was some agreement between these witnesses and some sharp disagreement. As to the surgical aspects of the case, Dr Collopy and Dr Hugh held a conclave on 21 November 2007 and produced a joint report on 30 November 2007 which crystallised their respective views and identified the areas of agreement and disagreement.

60 Dr Bigg-Wither completed a pre-medical Bachelor of Human Biology in 1979 from the University of Auckland and in 1982 graduated in medicine and surgery from that university with the completion of radiology qualifications in 1990; he then commenced private practice in radiology with special interests in teaching diagnostic radiology and abdominal imaging. In his report, undated, he reviewed the two radiographs of the plaintiff taken on 21 January 2003 and commented on the report prepared by Dr Long. Although no figure was mentioned in Dr Long’s report, Dr Bigg-Wither found the dilated caecum measured 12 centimetres and said it was at risk of perforation when the diameter exceeded 10 centimetres. Although the term “atypical paralytic ileus” as used by Dr Long was not a term he had encountered before, Dr Bigg-Wither said colonic pseudo-obstruction could also be used to describe a caecal ileus; he said paralytic ileus refers to general dilatation of the bowel loops but that that was not the pattern in this case which was typical of ACPO, albeit ACPO was a subcategory of ileus. In this case, Dr Bigg-Wither considered the plaintiff was in urgent need of decompressive treatment to the bowel due to the risk of perforation as shown by the large dilated caecum and the interruption to the blood supply.

61 Significantly, Dr Bigg-Wither noted that the radiographs or x-rays showed a distended ascending and transverse colon but with a non-distended descending colon filled with gas – that meant there was an obstruction in the bowel which could be either mechanical (an actual blockage) or pseudo (failure of normal muscular activity of the bowel with no true mechanical cause); he thought in the clinical setting here that the blockage was pseudo because the event occurred after orthopaedic surgery and with a painful distended abdomen.

62 Interestingly, Dr Bigg-Wither said he was familiar with the condition of ACPO and of the literature proposing the use of neostigmine as a treatment option and of the contraindications for its use. Without commenting on such treatment options, which was outside his sphere as a radiologist, he nevertheless said “as you’d expect, medical literature presents a variety of experiences and opinions”.

63 Dr Collopy prepared two reports dated 16 March 2005 and 22 May 2007 and during the hearing on 25 June 2008 he prepared a supplementary report commenting on certain aspects of the earlier oral evidence of Dr Hugh. In addition, of course, he participated with Dr Hugh in the joint report of 30 November 2007. Dr Collopy was the principal expert witness relied upon by the plaintiff.

64 After graduating in medicine and surgery from the University of Melbourne in 1957, Dr Collopy obtained Fellowships from the Royal Australasian College of Surgeons in 1962 and the Royal College of Surgeons, London in 1963 and later was made a Fellow of the Royal Australasian College of Medical Administrators. He was appointed in 1989 as the Director of the Department of Colon and Rectal Surgery at St Vincent’s Hospital, Melbourne and had a tenure of 10 years as such to 1999; he was an inaugural member of the Council of the Colorectal Surgical Society of Australia. Since graduation, Dr Collopy’s career has involved considerable experience with bowel surgery – in the public hospital system up to 1999 and later to 2005 in private practice and then assisting colleagues with complex cases – specialising in diseases of the colon and rectum for over 30 years. He has had a long-term interest in the formal assessment of the quality of patient care in both medicine and surgery as a past Chairman of the Board of Directors of the Australian Council on Healthcare Standards. He established the programme of clinical performance measures currently used in Australian hospitals and has published extensively on matters relating to the quality of medical care overall and in colorectal surgery. In the last three years, after ceasing operating as a surgeon, he established a consultancy, CQM Consultants, to evaluate the quality of health care.

65 Relevantly for present purposes, Dr Collopy said in the 1970s he worked with Professor Bernard Catchpole who developed the concept of using neostigmine to overcome paralysis of the bowel. During his career he had dealt with more than 20 cases of ACPO (massive dilatation of the colon without mechanical obstruction), one case every 18 months, sometimes two in a month, and of those he had successfully treated seven or eight cases with neostigmine. It seems that neostigmine is used in major hospitals as a regular part of anaesthetics towards the end of an operation to reverse the relaxant effects of the anaesthetic so that the muscles can be reactivated again – it was with that in mind Professor Catchpole thought it appropriate to use to relieve bowel paralysis.

66 Dr Collopy helpfully described the process leading to a pseudo-obstruction of the bowel. Food is passed through the alimentary canal, through the small bowel, into the caecum, up the ascending colon, across the transverse colon, down the descending colon into the rectum for discharge from the body. However, if the descending colon is not working, such as by an interference with the nerve supply from the spinal nerve secondary to spinal surgery, there is no muscle action and the descending colon becomes paralysed forming a functional or pseudo blockage (not a mechanical obstruction, such as a cancer). Neostigmine pharmacologically reactivates the muscle, “unblocking” it as it were, so that it thereby removes the obstruction and the normal bowel action may proceed. The condition, known as ACPO, has the classic feature of moderately or grossly dilated ascending and transverse colons with a normal sized descending colon due to the pseudo-obstruction blocking the passage of matter. On the other hand, PI, a physiological state of temporary paralysis of the bowel, features moderate dilatation of the small bowel and the whole colon. Dr Collopy considered a correct diagnosis of what condition existed was important because for PI conservative treatment was given as it usually subsided spontaneously whereas for ACPO the “blockage” had to be removed by appropriate treatment to decompress the bowel such as, initially and appropriately, neostigmine.

67 In the present case, Dr Collopy said the x-rays taken of the plaintiff on 21 January 2003 showed classic features of ACPO and as being not consistent with an ileus or an organic obstruction as there was plenty of air evident further on in the colon; also, flatus had been passed and some bowel sounds were heard, unlike with PI. He said disturbance of bowel function following spinal surgery, according to the published literature, occurred in between 5 and 12 per cent of patients and may take the form of ACPO so that it was not rare but an uncommon condition.

68 The proper diagnosis here of ACPO led Dr Collopy to state in his first report the available treatments as: first, neostigmine; second, colonic decompression; and, third, laparotomy. As to those he added, by reference to the published medical papers:

“(a) Neostigmine – This drug stimulates the para-sympathetic nerve supply to the intestine and overcomes its suppressed state, which is thought to be the cause of the condition. It is administered intravenously, in a dose of 2-2.5mg. Success rates of 60-90% have been reported, and borne out in a randomised trial. It is regarded as a safe form of treatment but slow administration of the drug is recommended as it can induce bradycardia (slowing of the heart).

(b) Colonic decompression – Deflation of the colon by colonoscopy is the next recognised step in management, if the above fails. A success rate of over 80% has been reported with this method, but colonoscopy does have an associated risk of perforation of the bowel, albeit a low one of 0.1-0.2%.

(c) Laparotomy – Laparotomy is required if the above two methods are unsuccessful. The experience of the Oschner Clinic in the US was that surgery was necessary in 11% of their cases. Surgery is of course associated with known complications, such as wound infection etc. Also in the case of Ms Hawes there would have been the skin, social and practical problems associated with having a stoma.

A procedure, less invasive than laparotomy, called a percutaneous endoscopic colostomy has recently been reported and stated to be safe and effective in the management of colonic pseudo-obstruction. With a colonoscope to guide the placement of a tube or tubes are passed through the abdominal wall into the bowel and left in (temporarily) to decompress it. The procedure seems an appropriate one, at least to consider, before proceeding to a laparotomy as an open operation may be avoided. However, I have no personal experience of it and there was probably little knowledge of its use at the time of this patient’s surgery.”

69 Dr Collopy believed that the above treatments (a) and (b) could have been tried before proceeding to (c) as it would be moving from the least invasive (ie. least harmful) to the most invasive and there was a good chance of success with (a) and then with (b) if (a) had failed. Dr Collopy considered, on the x-ray results and the hospital notes made by the first defendant, that the afternoon/evening of 21 January 2003 would have been the time to consider the administration of neostigmine.

70 Dr Collopy agreed that if there were signs of peritonitis, such as rebound tenderness, being present then the use of neostigmine was contraindicated because of the risk of perforation with a high risk or mortality and the patient should be taken directly to theatre for a laparotomy. However, as in this case, he thought that if it was reasonable to watch the plaintiff overnight on 21 January 2003 then neostigmine was not contraindicated – he emphasised that the first defendant’s hospital notes disclosed no signs of peritoneal irritation and, in any event, rebound tenderness as an indication of peritonitis was very subjective as, indeed, was the assessment of an acute abdomen. It was instructive that when asked what were the signs of peritoneal infection, Dr Collopy said “with all professions … there is a learning curve with a lot of parts of our practice”. Nevertheless, and given the risks involved with any procedure, even the use of neostigmine, Dr Collopy said there was a protocol to follow when using it, as follows:

“ …If you’ve made the diagnosis and you wish to use Neostigmine, (1) you notify the operating room to see if there’s a theatre available and when it will be available and is there an anaesthetist; (2) you give the patient intravenous antibiotics in case a perforation did occur and they already have antibiotic on board; (3) you monitor the patient and you have atropine on hand; (4) you then give the Neostigmine intravenously, usually 2 milligrams over about 10 minutes – could be longer, up to 30 minutes. If it is not effective you call theatre and say, ‘We’re now on our way up and I’ll do a colonoscopy.’ Now, if that is not successful, if I can’t get through this area – I only have to go up to the splenic flexure but I can’t get through I will tell the anaesthetist we’ve got to do a laparotomy. So we have a protocol for it.”

71 In that respect of the protocol, Dr Collopy said it was supported by a paper of the Standards of Practice Committee of the American Society for Gastrointestinal Endoscopy (ASGE) entitled “Acute colonic pseudo-obstruction” published in its journal Gastrointestinal Endoscopy Vol 56, No 6, 2002. I am far from sure Dr Collopy was correct in so adopting the paper as complete support for his protocol. In its summary, the paper stated:

“ . Conservative therapy is the preferred initial management for ACPO.

. Active intervention is indicated for patients at risk for perforation, failing conservative therapy.

. Neostigmine is effective in the majority of patients with ACPO as compared in a randomized clinical trial to placebo.

. In patients failing or having contraindications to neostigmine, colonoscopic, surgical, or radiologic intervention should be considered.”

72 In the body of the paper itself, the evaluation of a patient with signs or symptoms of ACPO was diagrammatically illustrated starting with conservative management (nothing by mouth, intravenous fluids, nasogastric suction) and then with only partial or no response the use of neostigmine but if still only partial or no response then colonoscopic decompression and then as a last resort surgery. Dr Collopy said what the paper was saying if conservative treatment failed was that “if the patient is at risk of perforation you begin the protocol I mentioned”. I have to say I do not understand the paper in that way. Conservative treatment as described in the paper and consistent with its regime was initiated by the first defendant overnight on 21 January 2003 but by the morning of 22 January 2003 the plaintiff’s condition had worsened and with the signs of peritonitis she was taken to surgery. As the paper remarked, “those with overt perforation or signs of peritonitis should generally be managed surgically”. Also, as the paper says and as support for the first defendant’s approach in first adopting conservative management, “spontaneous perforation has been reported in 3% to 15% of patients with a mortality rate of 50% or higher. The rate of perforation and/or ischemia rapidly increases with cecal diameters > 10 to 12 cm and when the duration of distension exceeds 6 days”. Here, Dr Bigg-Wither found the caecal diameter to be 12 cm and Dr Long measured it at 14 to 14.5 cm; the plaintiff had had abdominal distress since 19 January 2003 – the first defendant’s approach two days later of the conservative treatment and then with a worsened condition of signs of peritonitis and a risk of perforation the course of surgery was, I think, entirely consistent with the ASGE paper. Indeed, Dr Collopy agreed that there was a considerable body of literature to the effect that where there are signs of peritonitis one does not go through the neostigmine protocol but one goes, as he agreed, “straight to surgery”.

Liability – evaluation of the first defendant’s diagnosis and treatment of the plaintiff

88 The first defendant conceded a lack of independent recollection of the circumstances of this case and relied upon, not unusually in cases of this nature, his usual clinical practice. Of course, as time went on he was assisted very much by the hospital and his own records in recalling what occurred and why he probably did certain things. I do not devalue his evidence because of that. Evidence of a relevant practice may properly be given by a witness so as to make it probable that on a particular occasion the usual practice was followed: Connor v Blacktown District Hospital [1971] 1 NSWLR 713 at 715.

89 Criticism was levelled also at the first defendant in suggesting he embellished his oral evidence as to what condition he found the plaintiff at the time of his first examination of her at 4.00pm on 21 January 2003 to create a situation where the use of neostigmine was contraindicated by signs of peritonitis. It was criticised further for the plaintiff that the first defendant’s notation in the hospital records was less than complete and did not support a finding of peritonitis. I have to say my view of the first defendant’s evidence and of his presentation of it did not support that criticism. After all, as Grove J commented in Bruce v Kaye [2004] NSWSC 277 in para [17], “notes are kept for the purpose of enabling the doctor to manage the patient” and they are “not created as a log of every incident and exchange between them … but I am unconvinced that they are always useful in the hands of others, such as lawyers, seeking to make hindsight deductions”. Here, of course, the first defendant made the 4.00pm entry in the hospital notes but after seeing the plaintiff he dictated the more complete note for inclusion in his own records of her; again, and given the criticism of that record, I repeat that a doctor makes notes to enable the patient to be managed. I find no embellishment by the first defendant in his evidence.

90 Indeed, I found the first defendant to be an impressive witness who displayed a professional approach to the care of patients over a long career and, in present respects, with a dedicated and concerned approach for the plaintiff’s welfare. His evidence was given in an open and forthright manner and his reasoning was entirely credible. Specifically, I am satisfied his decision-making process as to the diagnosis and treatment of the plaintiff involved a clinical judgment from his observations of her condition and assisted by the hospital notes and the x-rays. The result in initially treating her conservatively and then by laparotomy with defunctioning colostomy was, in my view, in accordance with a sincere and genuinely held conclusion about her condition as it developed. I accept that he acted in a manner reasonable and consistent with what he thought necessary from his professional training and experience. Whether, of course, that was in accordance with the exercise of reasonable professional skill and judgment of acceptable medical practice is quite another matter; but, at least it seems to me, it represents some evidence favourable to the first defendant of what medical practice was in these circumstances. This requires consideration of the expert medical evidence.

91 The evidence of both Dr Collopy and Dr Hugh was criticised by the respective opposing counsel – Dr Collopy for being an “enthusiast” for the use of neostigmine and Dr Hugh for being an advocate for the first defendant. I did not so view their evidence. Whatever else may be said about the conflicting medical opinions in this case, which as will appear was eventually within a relatively narrow compass, I think the respective views stated by Dr Collopy and Dr Hugh were genuinely held by them as to their understanding of relevant competent clinical practice. In any event, there was much agreement between them as to the technical aspects involved in terms of bowel function, complications secondary to spinal surgery, diagnosis of PI and ACPO, available and appropriate treatments for ACPO (including the use of neostigmine) and the contraindications for the administration of neostigmine. At most, where Dr Collopy and Dr Hugh differed was on the interpretations to be drawn from the x-rays taken on 21 January 2003, the conservative treatment given to the plaintiff overnight on that date and the failure for neostigmine to have been administered on 21 January 2003.

92 Dr Bigg-Wither’s evidence, although led for the plaintiff, I think ultimately had aspects favourable to the first defendant in that he considered the x-rays were consistent with there being either a mechanical or a pseudo-obstruction in a distended bowel and where the medical literature in such cases of the use of neostigmine presented a variety of experiences and opinions. I have no reason to doubt Dr Bigg-Wither’s evidence and I propose to rely on it.

93 Dr Long, although not giving evidence as an expert because originally she was the second defendant until her case settled, also formed a view favourable to the first defendant: namely, that from the x-rays she considered on 21 January 2003 that the plaintiff had a condition which was potentially life-threatening with a risk for perforation of the bowel from a very distended caecum; Dr Long, like Dr Bigg-Wither, thought the plaintiff had a blockage of the bowel from a mechanical or a pseudo-obstruction. She said, in addition to her report, that she discussed her concerns with the first defendant. I accept Dr Long’s evidence.

94 Notwithstanding the considerable volume of evidence in this case, necessary to identify the essential issues and to properly understand the technical aspects in the light of medical practice, the ultimate issue on liability reduces to a narrow factual point – were signs of peritonitis present when the first defendant first examined the plaintiff at 4.00pm on 21 January 2003 so as to reasonably suspect peritonitis. I think there were.

95 At that time, the clinical picture of the plaintiff found by the first defendant was somewhat equivocal and about which he was uncertain but quite concerned. He thought she could have peritonitis with the grossly distended bowel, rebound tenderness in the lower part of the abdomen and fever with an elevated temperature and white blood cell count. Although making a primary diagnosis of PI secondary to surgery, a differential diagnosis of appendicitis or diverticulitis (ie peritonitis as an inflammation of the lining of the abdominal cavity) was made but he did not think it was that latter condition. Even so, and being concerned that there was something more than a typical ileus because of the peritoneal signs, such as from a cancer causing the bowel obstruction, the first defendant decided to review the plaintiff in two hours with conservative treatment in the meantime to rehydrate her. By that stage, of course, Dr Long’s view of the risk of perforation became known and in a context where the hospital notes of Dr Wilson at around 2.00pm on 21 January 2003 indicated there was rebound tenderness and generalised abdominal pain. The first defendant did not diagnose ACPO, rather PI but with the concerns leading to the differential diagnosis – even with ACPO, as a special category of PI, the initial treatment from the published literature is conservative (ie antibiotics, nil by mouth, intravenous drip and nasogastric suction). With some improvement in the plaintiff’s vital signs since 4.00pm, the first defendant on review of her at 6.00pm decided to further review her the next morning – he checked her condition by telephoning the hospital at 7.30pm. However, at 6.00am on 22 January 2003 the plaintiff’s symptoms had worsened and he found she had “this peritonitis” – surgery by laparotomy was then performed at 12 noon and a defunctioning caecostomy to decompress the bowel.

96 As the plaintiff’s case was argued, supported by Dr Collopy’s opinions and based on the hospital notes made by the first defendant, it was put that the first defendant did not find signs of peritonitis on 21 January 2003 because if he did he would, or should, have taken her to surgery to avoid a likely chance of death. The diagnosis of PI instead of ACPO had implications for mismanagement. By accepting the plaintiff was well enough to be treated conservatively and left overnight meant, as it was submitted, she was well enough to have had an attempt at decompression of the bowel through the administration of neostigmine. It was accepted that by the morning of 22 January 2003 there was a suspicion of peritonitis so that neostigmine was then contraindicated and laparotomy was appropriate.

97 The first defendant’s case was relatively straightforward, that is, because there were signs of peritonitis present on the afternoon/evening of 21 January 2003, and they were detected by him, not only was it not appropriate to treat the plaintiff with neostigmine but it would have been positively dangerous to do so. It was common ground that neostigmine was contraindicated where there was a suspicion of peritonitis. Even if no signs of peritonitis were present, it was submitted it was still appropriate as consistent with competent clinical practice to review overnight with the conservative treatment, particularly where there had been some improvement. Again, neostigmine was contraindicated with a bowel where the caecum was very distended, be it 12 cm or 14 cm or 18 cm, as there was a heightened risk of perforation by its use leading to possible death – excluding decompression by colonoscopy and percutaneous endoscopic colostomy as inappropriate to use here. Again, therefore, it was clinically appropriate not to administer neostigmine but to treat conservatively and review the following morning in the hope of improvement, thus avoiding surgery.

98 In accepting the first defendant’s evidence that on the afternoon of 21 January 2003 he found signs of peritonitis, it follows, in my view, from the expert medical evidence that it would have been contrary to accepted medical practice to administer neostigmine. Even if, against my finding, signs of peritonitis were not seen, neostigmine was still not proper to be used because on the medical evidence I have accepted there was a reasonable risk of perforation of the bowel from the contractions caused by neostigmine, having in mind the high degree of distension of the caecum.

99 I should add that I have seen the task in determining this case in not restricting consideration to the fine and narrow point of the first defendant’s entry in the hospital notes at 4.00pm on 21 January 2003, as the plaintiff urged to be done, but rather according to what the first defendant knew from the whole of the clinical picture, including the hospital notes, his own records, the x-rays and Dr Long’s interpretation of those x-rays.

100 Finally, a comment should be made about the alleged “two camps” as to the use of neostigmine, the enthusiasts and the non-users. In present respects, I do not think anything relevantly turns on this. Pursuant to s 5O(1) of the Civil Liability Act a professional is not negligent if it be established that the professional acted in a manner at the time which was widely accepted by peer professional opinion as competent professional practice. Sub-section (3) of the section acknowledges that there may be differing such opinions so that any one opinion may be relied upon as a defence to an action for negligence. Here, I am satisfied there are differing opinions about the use of neostigmine. However, the difference lies not so much in its inclusion in the regime of properly available treatments for ACPO but rather in its use, or non-use, in various clinical contexts where a medical judgment has to be made based on observable signs and symptoms. In any event, it was common ground according to the literature that neostigmine was contraindicated where there were signs of peritonitis and, perhaps, where there was a real and reasonable risk of perforation of the bowel. Those conditions existed in the present case so that, to the extent necessary to be found, the first defendant had a good defence under s 5O.

101 Accordingly, I conclude that the first defendant’s treatment of the plaintiff was in accordance with acceptable professional standards of competent medical practice. He was not negligent in failing to administer neostigmine to the plaintiff. A verdict should be entered in favour of the first defendant against the plaintiff.

Quantification of damages

102 It is appropriate to assess damages in the event my finding on liability in favour of the first defendant be erroneous. I will do so as shortly as I can.

103 Non-economic loss: The plaintiff had the laparotomy operation in the context that she had quite serious pre-existing problems and disabilities from the carpal tunnel syndrome in both wrists and the work injury to her lower back which required surgery; in addition, she had experienced depression, with suicidal ideation, in the years following the back injury in 1992 and was an excessive user of alcohol and marijuana. The reports of Dr Evans, Dr Dalton, Dr Steele and Dr Brown, as referred to earlier, are informative in those respects. The abdominal surgery itself revived the emotional problems for the plaintiff and during the period of four months after that surgery she found considerable difficulty in attending to the rehabilitative process, particularly with the colostomy bag. Her principal concern, as she said, was with “my stomach, my back … just the way I was feeling in general”; she had lost interest in food and eating and experienced continuing problems with the functioning of her bowel.

104 For the future, as Dr Brown opined after agreeing with Dr Steele as to the plaintiff’s mental state, the complications following the abdominal surgery had probably reached their maximum by May 2006 and in an ongoing sense there had been a return to her baseline level of pain and depression more related to the pre-existing underlying condition. As to continuing back problems, Dr Evans considered the plaintiff was unemployable for all practical purposes but, at most, only fit for half-time receptionist type work. Dr W T Straughan, a specialist in sports and occupational medicine and injury management, in a report dated 15 January 2003, said he examined the plaintiff on 7 January 2003 and found her to be suffering from predominantly degenerative lumbosacral disease which may have been aggravated by the 1992/93 work injuries at Inghams. Dr Straughan considered she was then permanently unfit to perform duties requiring repetitive bending, squatting, climbing, lifting, twisting, working in fixed state or awkward positions but fit for selected duties where she could work on an even surface allowing her to sit and stand and move around at her own pace as the symptoms might dictate. A consultant orthopaedic surgeon, Dr Lloyd Hughes, saw the plaintiff on 15 September 2004 and in a report the following day said he found mild to moderate disability in her lumbar back due to degenerative disc disease which would prevent heavy physical work but light physical work not involving any heavy lifting or prolonged bending could be done.

105 In his report of 4 April 2005, Dr Steele diagnosed the plaintiff as suffering from post-traumatic stress disorder with major depressive illness. He considered she had a 17 per cent whole person impairment from that condition which he attributed somewhere between 5 to 6 per cent to the abdominal condition, that is, about one-third; that view was consistent with Dr Brown’s assessment of 30 per cent being attributable to the abdominal condition.

106 Dr Collopy examined the plaintiff on 15 December 2005 and identified a number of complaints, namely, loss of appetite and nausea, abdominal pain, altered bowel habit and weight loss. He made this assessment of the plaintiff:

“1. The abdominal scars provide a moderate cosmetic disability but not a functional one.

2. The abdominal symptoms are suggestive of the irritable bowel syndrome (IBS). This syndrome is generally regarded as being stress related and its onset time wise suggests a causal link with her surgery. It is unfortunately difficult to control and there are few specific medications.

3. Her inability to perform work requiring concentration but minimal physical effort, such as driving vehicles of a limited size, can probably be ascribed to her stress condition to which the surgery can be considered a contributory factor. Whilst the symptoms of IBS persist she will probably remain unemployable.

She has other symptoms, such as panic attacks, which may have some relationship to the surgery …
…
Treatment (for IBS) is required from now. It is generally a combination of medication and dietary measures. She has already taken dietary advice. It is likely to be required for several years. Medication is usually daily.

…

She may require some assistance with house cleaning and shopping but should be able to cope with cooking and other minor household tasks.”

107 The plaintiff’s own evidence put her disabilities after the abdominal surgery at a high level and, as outlined earlier, she tended to focus on that surgery rather than her pre-existing problems as being the cause of her present and continuing condition. There may be no doubt, on the medical evidence, that the plaintiff’s emotional state following the abdominal surgery was heightened for a period of a couple of years but has now appeared to have settled to its pre-existing level. Nevertheless, the irritable bowel syndrome probably relates to the abdominal surgery as Dr Collopy suggested but, as he conceded, it is generally stress related so as to raise the influence on it of the pre-existing depressive condition from the back injury and other degenerative changes.

108 For the plaintiff, non-economic loss of 32 per cent of a most extreme case was claimed based on the irritable bowel syndrome, chronic moderate cosmetic disability from abdominal scarring, acute cognitive impairment with confusion, acute auditory hallucinatory phenomena and delusional beliefs, chronic post-traumatic stress disorder and major depressive illness. For the first defendant, it was submitted that 25 per cent of a most extreme case would be adequate compensation.

109 On the basis of the plaintiff’s experience with the abdominal surgery, its immediate and short-term aftermath, complications and continuing problems, but allowing for the pre-existing condition, I assess non-economic loss at 28 per cent of a most extreme case, that is, $62,000 being 14 per cent of the maximum amount of $442,000 pursuant to s 16 (2) of the Civil Liability Act.

110 Past out-of-pocket expenses: These were agreed in the sum of $8,354.60.

111 Future out-of-pocket expenses: For the future, these were claimed in the sum of $64,138.71 in respect of ongoing consultations with a general practitioner, travel to providers, medications for irritable bowel syndrome, dietary consultations, psychiatric consultations and anti-depressant medication. The first defendant conceded an amount for future out-of-pocket expenses of $13,203.09 limited to modest amounts related to the abdominal condition for general practitioner consultations of five per year, travel expenses, medication for the bowel condition, and two bi-annual dietary consultations; otherwise, as it was put, the medical evidence did not support the claim made as being related to the subject disabilities.

112 As to general practitioner consultations, the evidence does not support the claim of 12 visits per year. It seems that in the five-year period to date from February 2003 she has had 37 such consultations, that is, about seven per annum. On a continuing basis into the future, I would allow six such consultations at the agreed rate of $41.00 per visit being $4.73 per week for a life expectancy of 37.42 years (multiplier of 897.2 on 5% tables).

113 Travel expenses to the general practitioner, pharmacist and counsellor were contentious. For instance, there was evidence from Mr Hawes that he had taken the plaintiff to a counsellor only once or twice. Also, the acceptable general practitioner visits have been halved and attendance at the local chemist may reasonably be done during the course of normal shopping. I think it reasonable to allow travel to the general practitioner of 26 km per visit, that is, an average of 3 km per week at 45 cents per km for the plaintiff’s life expectancy giving $1.35 per week.

114 Medication for the irritable bowel syndrome was claimed in the amount of $34,951.35 based on Dr Collopy’s report for its need and current prices; six such medications were included. The evidence of the plaintiff as to the medication she takes for this condition was very scant and the notes of her general practitioner, Dr Mayers, reveal most irregular and few prescriptions. Also, it seems, because of the plaintiff’s financial position she has a Pharmaceutical Benefit Scheme (PBS) concession card which means an individual prescription costs $5.00 until an annual safety net amount of $290 when they are free. Whether the PBS concession card will likely continue is unknown.

115 The evidence does not enable a precise assessment to be made of this element for medication. The first defendant suggested an amount of about $9.25 per week. I would allow $15.00 per week for the plaintiff’s life expectancy.

116 Dr Collopy suggested the need for the plaintiff to have dietary consultations for several years. The plaintiff claimed one consultation each two years at a cost of $55.00 per session to monitor and modify her dietary programme. This claim was not seriously resisted and, in my view, the plaintiff’s evidence as to her eating habits and weight, together with Dr Collopy’s views, make the claim reasonable. I would allow 53 cents per week for her life expectancy.

117 The claim for consultations with a psychiatrist of $2,000.00 (10 sessions at $200.00 per session) was supported by the report of Dr Steele who suggested ongoing counselling of ten sessions at $150.00 to $200.00 per session with the aim of maximising the anti-depressant medication and as relieving the pain experience, tolerance and behaviour. The claim, as well as the claim for anti-depressant medication, was resisted by the first defendant on the basis of Dr Brown’s view that in this respect the pre-existing baseline had been reached. In any event, it is to be borne in mind on the medical evidence that only about one-third of the plaintiff’s mental state was attributed to the abdominal surgery.

118 I think it reasonable to allow one-third of the claim for psychiatric consultations, that is, $666.67. As to the claim for anti-depressant medication, I think this should be allowed, as consistent with the counselling claim, to the extent of one-third being $2.30 per week for life expectancy.

119 Thus, the future out-of-pocket expenses I would allow are $666.67 for psychiatric consultations and $23.91 per week for general practitioner consultations, travel expenses, medication for irritable bowel syndrome, dietary consultations and anti-depressive medication in the sum of $21,452.05 (multiplier of 897.2 on 5% tables) – the total for this element is, therefore, $22,118.72.

120 Past and future economic loss: The plaintiff’s claim for this loss of earning capacity consequent upon the abdominal surgery was quantified in the sum of $32,164.00 for the past and $31,493.35 for the future based on her intention to return to casual driving of school buses after the spinal surgery, say two years thereafter from January 2005, until normal retirement at age 65 years in May 2022. For the past, it was put she would have been able but for the complications from the bowel surgery to have worked for three hours per day over three days each week earning $190.17 gross per week ($187.00 net per week) according to the Transport Industry – Motor Bus Drivers and Conductors (State) Award; for the future to retirement age, a cushion of $70.00 per week net was sought due to the anticipated significant absences from work owing to the irritable bowel condition. The views of Dr Collopy were relied upon in making out a causal connection between her condition and the bowel surgery.

121 The first defendant opposed any amount being allowed for past and future economic loss. As it was submitted by his counsel, the reality of the situation was that the plaintiff had not been in any paid employment for almost ten years since her work-related back injuries in 1992/93; to the extent she did some limited bus driving prior to January 2003, because of the back injuries, that gave her reimbursement for petrol expenses only and no payment for her labour was made as she offered it on a voluntary basis. It was emphasised from the medical evidence covering the period from 1994 to late 2003 that the back injury rendered the plaintiff unfit for manual work and made it unlikely she would ever return to paid employment. In the result, counsel submitted it as unlikely in the extreme that she would have been able to successfully return to any form of paid work irrespective of whether she underwent the laparotomy and defunctioning caecostomy on 22 January 2003; relying on the language of s 13 of the Civil Liability Act, counsel put that the plaintiff’s most likely future circumstances but for the subject injury were that she would remain unemployed.

122 The evidence of the plaintiff was clearly of a desire to return to the bus driving work on a regular basis and she had obtained the necessary driver’s licence for that purpose. Indeed, her motivation to do this work was an operative reason she had the spinal surgery in January 2003 but her continuing problems from the bowel surgery, on her evidence and supported by Dr Collopy, made her unemployable. As to the effect of her back condition following the spinal fusion in January 2003, Professor Ghabrial reviewed her on 9 May 2003 and reported to Dr Mayers that “she has almost no back pain … advised her to avoid heavy lifting, excessive bending and excessive twisting on a permanent basis”. On further review in September 2003, however, Professor Ghabrial informed Dr Mayers the plaintiff was “having residual symptoms in her back and both legs … she will never be back to normal … her condition has stabilised”. Dr Hughes in his report on the plaintiff of 16 September 2004 said she advised him of “constant aching in her lower back all day every day and also in her legs … also has some pain in her neck and shoulder”.

123 I am quite unable to be satisfied, as I must be having in mind s 13(1) of the Civil Liability Act, that the plaintiff most likely would have engaged in gainful employment were it not for the condition of her bowel. The continuing problems with her back and consequent limitations, on her own evidence and the views of Professor Ghabrial, Dr Hughes, Dr Dalton and Dr Evans, and the various other physical conditions she had, including to the wrists and hands and the urinary difficulties, all act against a return to the workforce. In addition, of course, the limiting effects of her mental and emotional state, as reviewed by Dr Steele and Dr Brown, reinforce this conclusion. Those conditions all pre-dated the bowel surgery in a situation where the plaintiff had not worked for nearly a decade since the initial work injury in 1992/93 at Inghams. Even then, the work she did as a bus driver during the Olympics and in her local area was on an irregular casual basis, much of it as a relief driver, for which no wages were earned.

124 The plaintiff’s expressed intention to drive buses was certainly made in her evidence but with a lack of detail, even in general terms, as to its availability and duration. I would not allow any damages for past and future economic loss. The plaintiff’s counsel pointed to the modest nature of the claim and emphasised for the future that a cushion only was sought. However, the assumptions on which to base such an award must be established – I do not think they have been.

125 Past domestic care: The first defendant conceded an amount for this element of $19,834.84 against a claim of $55,452.83. The plaintiff’s case rested on her evidence and that of her husband; it primarily related to changing of the colostomy bag for the period of 17 weeks until its removal on 20 May 2003, regular changing of bed linen during that period, showering and personal hygiene, washing of clothes, food preparation, shopping and transportation to medical appointments. As to duties related to the colostomy bag, the time claimed ranged from 40 to 52.25 hours per week for the first 17 weeks and thereafter the various other duties were said to amount to a total of 13.5 hours per week plus transportation time. For the first defendant, an amount of 10 hours per week was accepted as reasonable for the colostomy bag functions over the initial four-month period after the plaintiff’s discharge from hospital on 30 January 2003; eight weeks of assistance for showering, cleaning and laundering based on four hours a week was proposed; three hours per week for food preparation and shopping until mid-2007; and an amount of $1,500.00 to cover transportation time.

126 Although I accept that the plaintiff experienced difficulties of a most unpleasant nature associated with the colostomy bag, I think the time involved in such activities was significantly overstated. In that respect, I bear in mind the evidence from the discharge notes of John Hunter Hospital that she was able to change the bag with the assistance of Mr Hawes and the community nursing notes indicated that a couple of days after returning home she could change the bag and did not require any further services; even though embarrassment may have existed, I think it unlikely the plaintiff would not have mentioned the difficulties she was having for such a long time each day and on the reviews by Dr Holley there was no mention in his records of any problems with the colostomy bag. I would suspect the plaintiff’s then emotional state was active and so conditioning her to exaggerate the real position. Nevertheless, it may be accepted, which I do, that problems did exist. I would allow for the care in this respect given to the plaintiff by her husband 21 hours per week for the 17 weeks concerned at the agreed rate of $19.24 per hour – the resultant sum is $6,868.68.

127 As to the care given the plaintiff by her husband and daughter after removal of the colostomy bag for about eight weeks for showering, cleaning and laundering, I would allow seven hours per week at the agreed rate of $19.55 per hour – that results in an amount of $1,094.80.

128 Assistance for food preparation and shopping in the past by the plaintiff’s husband and daughter was claimed at 7.25 hours per week based on her developed aversion to food after the abdominal surgery. It seems that this assistance continued until March 2006 when the plaintiff and her husband separated and to March 2008 when her daughter ceased providing assistance. Since then, the plaintiff has done the food shopping for herself and relies upon pre-prepared food for the one daily meal she eats. Against the claim of 7.25 hours per week, the first defendant conceded three hours per week to mid-2007. I would allow three hours per week for this aspect for 268 weeks to March 2008 at the agreed rate of $20.92 per hour – that gives an amount of $16,819.68.

129 The determination of the transportation claim is difficult because, on the evidence, many of the trips had multiple purposes not being restricted to the plaintiff’s bowel condition. The plaintiff claimed $2,139.08 and the first defendant estimated an amount of $1,500.00. I think the first defendant’s estimate to be reasonable and would allow it.

130 The total amount for past domestic care, therefore, comes to $26,283.16.

131 Future domestic care: The first defendant resisted any allowance for future domestic care of the plaintiff against her claim, at commercial rates, of $71,824.00 to cover items of shopping, preparation of dinners and delivery charges. The claim was for $80.00 per week for her life expectancy.

132 It is plain on the plaintiff’s own evidence that she now, and has since early 2008, does her own shopping and food preparation, albeit she does not enjoy food and has a limited desire for it. There is nothing in the evidence, as I view it, which would support the need for home deliveries of meals. This claim must be disallowed.

133 Summary of damages as assessed: The damages I would allow are $62,000.00 for non-economic loss, $8,354.60 for past out-of-pocket expenses, $22,118.72 for future out-of-pocket expenses and $26,283.16 for past domestic care – the total damages, therefore, are quantified at $118,756.48.

134 Reduction for loss of chance: As indicated earlier based on Malec v J C Hutton, it is appropriate to reduce the assessed damages by the percentage chance the plaintiff’s injuries would have occurred in any event. The first defendant suggested the appropriate discount would be in the order of 20 to 30 per cent whereas the plaintiff conceded 13 per cent. The success rate of the use of neostigmine in the literature, as Dr Collopy reported, was from 60 to 90 per cent as shown from a randomised trial in America in 2001 with more recent literature showing a success rate of 87 per cent. In assessing the degree of success in any particular case, much depends upon the degree of caecal distension and the consequent risk of rupture; the literature, such as the ASGE Journal referred to above, indicated a 3 to 15 per cent perforation rate for patients with ACPO where the caecal diameter was greater than, as in the present case, 10 to 12 centimetres.

135 I would allow in the circumstances of this case a reduction of 20 per cent so that the net damages are quantified in the amount of $95,005.18.

Conclusion and orders

136 The first defendant’s treatment of the plaintiff was in accordance with acceptable standards of competent medical practice. He was not negligent and is, therefore, entitled to a verdict. In any event, I conclude further that the defence has been establilshed that the first defendant acted in a manner widely accepted by peer professional opinion in Australia as competent professional practice in his treatment of the plaintiff. If the first defendant had been found liable then, to the extent it may be necessary, I would quantify damages in the amount of $95,005.18.

137 I will hear the parties on costs before making final orders.

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