Hooper v Efe
[2010] VCC 880
•19 July 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION LIST
MEDICAL DIVISION
Case No. CI-07-01550
| BRONWYN HOOPER | Plaintiff |
| v | |
| NARINE EFE | Defendant |
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| JUDGE: | HIS HONOUR JUDGE SACCARDO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 3, 15, 16, 17, 18, 21, 22, 23 and 24 June 2010 |
| DATE OF JUDGMENT: | 19 July 2010 |
| CASE MAY BE CITED AS: | Hooper v Efe |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 0880 |
REASONS FOR JUDGMENT
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Catchwords: MEDICAL NEGLIGENCE – Informed consent – suitability of mode of surgery
– adequacy of post-operative care – defence pursuant to Section 59 of the Wrongs Act.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P A Jewell SC and | Nowicki Carbone & Co. |
| Mr A D Ingram | ||
| For the Defendant | Mr J Constable | Tresscox Lawyers |
INDEX
page
Introduction 1 The Standard of Care 4 The Adequacy of the Pre-Operative Advice Given by Dr Efe to Mrs Hooper 5 In choosing to manage Mrs Hooper’s Breast Reduction by the Performance of a Supero- lateral Pedicle Procedure, did Dr Efe Breach the Duty of Care owed by her to Mrs Hooper? 6 The Evidence Relied upon by Mrs Hooper in Support of her Case that Dr Efe’s Choice of Surgery in the form of a Superolateral Pedicle Procedure was Inappropriate 9 The Evidence Relied upon by Dr Efe in Support of her Choice of Surgery in the form of a Superolateral Pedicle Procedure 12 Findings as to whether, in employing a Superolateral Pedicle Procedure, Dr Efe was in Breach of the Duty of Care which she owed to Mrs Hooper 21 The Consequences of the Choice by Dr Efe to Employ a Superolateral Pedicle Procedure 28 (a) Was there a failure to maintain an adequate vascular supply to the nipple
areola area which resulted in tissue necrosis? 28 (b) If an inferior pedicle or a free nipple graft had been undertaken, would the
failure to maintain an adequate vascular supply have been avoided? 30 The Defence Pursuant to Section 59 of the Wrongs Act 32 The Adequacy of Dr Efe’s Post-operative Wound Management 34 Findings as to the Adequacy of Dr Efe’s Post-Operative Management 39 The Consequences of the Delay in Performing the Surgical Debridement 40 Damages 42
HIS HONOUR:
Introduction
1 In March 2004, Bronwyn Hooper consulted Dr Narine Efe as to the possibility of undergoing breast reduction surgery. Mrs Hooper, who was then fifty years of age, presented to Dr Efe with a medical history of considerable complexity, which included:
• having undergone a hysterectomy by reason of the presence of cervical endometriosis at the age of twenty-three; • that she was receiving treatment for a condition of severe ankylosing spondylitis in the form of immunosuppressive therapy and was taking an immunosuppressive drug, Arava; • that she had previously undergone three surgical procedures to her cervical spine, two of which involved fusion procedures and surgery to her low-back following a motor vehicle accident in 1985. In addition, she had undergone a total right knee replacement at the age of thirty-two. • a history of poor wound healing. 2 Further, by reason of the fact that she had recently sustained a fracture to her right ankle, Mrs Hooper presented to Dr Efe wearing a splint on her right ankle and walking with the aid of crutches.
3 Mrs Hooper told Dr Efe that she had always had large breasts and that she was currently either a “38I” or a “36J” bra size. She said that the size and weight of her breasts exacerbated the condition in her back, neck and shoulders and that she wished to reduce her breast size for that reason.
4 Dr Efe was satisfied that Mrs Hooper qualified for breast reduction surgery, even in the absence of any consideration of her chronic joint problems. Whilst the size of Mrs Hooper’s breasts and in particular, the distance between the current nipple position and the ultimate desired nipple position raised “technical factors”,[1] and the performance of surgery was likely to be complicated by Mrs Hooper’s history of poor wound healing and her use of Arava, it was agreed between Mrs Hooper and Dr Efe that the surgery should proceed.
[1] See the letter from Dr Efe to Dr Rosner dated 31 March 2004 at Joint Court Book (“JCB”) 151. Mrs Hooper was identified by Dr Efe as being at a high risk of developing nipple loss as a consequence of the possible impairment of her vascular supply in association with such surgery.
5 Pursuant to Dr Efe’s direction, Mrs Hooper discontinued her use of Arava approximately one week prior to the proposed surgery and, on 28 April 2004, Dr Efe undertook a procedure in the form of a superolateral nipple pedicle breast reduction upon Mrs Hooper at the Mercy Private Hospital, in the course of which 1.445 grams of tissue was removed from her right breast and 1.554 grams of tissue was removed from her left breast.
6 Whilst Mrs Hooper made what appeared to be a relatively uneventful recovery from the surgery undertaken upon her right breast, her recovery from the surgery undertaken to her left breast was more complicated.
7 Between May and September 2004, Mrs Hooper regularly attended Dr Efe for management of the delayed healing of her left breast, in the course of which minor debridements were undertaken and the wound was regularly re-dressed.
8 Mrs Hooper last saw Dr Efe on 15 September 2004, at which time Dr Efe described the wound to Mrs Hooper’s left nipple as being two-thirds healed and continuing to granulate slowly.[2]
[2] See the letter from Dr Efe to Dr Rosner dated 15 September 2004 at JCB 173
9 On 16 September 2004, Mrs Hooper went to Tasmania to visit her mother and sister. Whilst there, she consulted Dr Annette Douglas, a general practitioner, for the purpose of managing the wound dressing for her left breast.
10 On 20 September 2004, in the course of replacing the dressing to the left breast wound, Dr Douglas formed the opinion that there was no scab around the wound, that no epithelial tissue was present around the wound but rather, that there was a communication between the wound and a layer of fat underneath it.[3] Having made this finding, Dr Douglas immediately referred Mrs Hooper to Mr Steven Wilkinson, a surgeon, who subsequently admitted her to the Hobart Private Hospital where she underwent three debridements to her left and right breasts, the procedures being undertaken on 28 September 2004, 30 September 2004 and 5 October 2004 respectively.
[3] Transcript (“T”) 164
11 Following the performance of these procedures, Mrs Hooper was required to undergo bilateral breast reconstructions which were undertaken in Tasmania by Associate Professor Frank Kimble in the course of three surgical procedures undertaken on 6 July 2005, 17 August 2005 and 11 October 2006. Mrs Hooper was finally discharged from Associate Professor Kimble’s care on 1 February 2007.
12 Mrs Hooper alleges that in the advice and medical treatment provided to her by Dr Efe, Dr Efe failed to apply the standard of care which could reasonably be expected of her. Specifically, it is alleged by Mrs Hooper that:
(i)
in advising Mrs Hooper as to the surgical options which were available to manage her proposed breast reduction surgery, Dr Efe did not adequately describe those options so as to obtain Mrs Hooper’s informed consent to the surgery;
(ii)
in electing to perform the surgery by way of a superolateral pedicle procedure in favour of an inferior pedicle procedure or a free nipple graft, Dr Efe acted unreasonably, such as to breach the duty of care owed by her to Mrs Hooper;
(iii)
that the post-operative management by Dr Efe of the surgical wound to Mrs Hooper’s left breast was deficient.
The Standard of Care
13 It is accepted by the parties that the standard of care which was owed by Dr Efe to Mrs Hooper was that prescribed by the provisions of s.58 of the Wrongs Act 1958, as amended, which provides:
“Standard of care to be expected of persons holding out as
possessing a particular skill
In a case involving an allegation of negligence against a person (the defendant) who holds himself or herself out as possessing a particular skill, the standard to be applied by a court in determining whether the defendant acted with due care is, subject to this Division, to be determined by reference to—
(a) what could reasonably be expected of a person possessing that skill; and (b) the relevant circumstances as at the date of the alleged negligence and not a later date.”
14 There is no issue in the proceeding that the performance of breast reduction surgery is generally the province of specialist plastic surgeons. Dr Efe is a specialist breast surgeon who, in addition to the normal qualifying degrees which enable her to practise as a doctor, holds a Bachelor of Medicine, a Bachelor of Surgery, a Diploma from The Anatomical Society of Australia and New Zealand and a Fellowship of The Royal Australasian College of Surgeons. She described her area of practice as including:
“What’s being formalised as onco plastic work, which means a variety of plastic surgery techniques are used for both reconstruction and correction of breast abnormalities.”[4]
[4] T 337
15 The parties accept that in assessing the standard of care which could reasonably be expected of Dr Efe in the circumstances of the present case, it is appropriate to apply the standard of care and skill expected of a plastic surgeon.[5] Indeed, the only evidence adduced by the parties as to the adequacy or otherwise of the advice and treatment provided by Dr Efe to Mrs Hooper was adduced from specialist plastic surgeons, with the exception, of course, of the evidence given by Dr Efe.
[5] T 473
The Adequacy of the Pre-Operative Advice Given by Dr Efe to Mrs Hooper
16 Dr Efe gave evidence that in the course of her pre-operative consultation with Mrs Hooper she discussed the procedure which she recommended should be undertaken, namely a superolateral pedicle, and mentioned the option of surgery in the form of a free nipple graft –
“only to discount it in her case, in particular, because of her Arava use”.
Dr Efe further explained her thought process as follows:
“The free nipple graft is really a full thickness graft and it’s quite a thick full thickness graft, and it really has to re-establish a whole new blood supply, and with impaired wound healing the delay in time to establish a blood supply for that disc of skin means that it would just totally die, so my concern was that if I had removed the nipples and put them on as a free nipple graft, they would 100 per cent be lost.”[6]
[6] T 340
17 Whilst Mrs Hooper gave evidence that she could not recall the precise conversation which took place between herself and Dr Efe as to the type of operation which would be undertaken, she was adamant that only one procedure was discussed by Dr Efe.[7]
[7] T 145
18 It is submitted by Mr Constable, who appeared on behalf of Dr Efe, that any inconsistency between the evidence of Mrs Hooper and that of Dr Efe upon this issue should be determined in favour of Dr Efe. In making this submission, Mr Constable points to an amendment to the Statement of Claim in this proceeding made on 24 November 2009 in which an allegation was introduced in paragraph 7 of the Amended Statement of Claim in the following terms:
“7 By an agreement made in or about April, 2004 the plaintiff agreed that the defendant could perform a free nipple graft procedure on her left and right breasts referred to in paragraph 6 hereof (the agreement) in order to reduce the size of her left and right breasts.”
19 It is submitted by Mr Constable that, notwithstanding the evidence given by Mrs Hooper that there was no such agreement, and that she did not know why her Statement of Claim had been amended to plead the existence of such an agreement,[8] the inconsistency between Mrs Hooper’s evidence and the allegation made on her behalf in the amended pleadings should move me to prefer Dr Efe’s evidence upon this issue.
[8] T 140
20 When I consider both the allegation made by Mrs Hooper in her amended pleading to which I have referred, and the evidence of Mr Kalus that he obtained from Mrs Hooper a history that Dr Efe had planned to do an operation with a free nipple graft,[9] I am satisfied that Dr Efe did discuss the option of performing a free nipple graft in the manner described by her in her evidence, namely to exclude that procedure as an option given Mrs Hooper’s presentation.
[9] T 278
21 An issue potentially arises as to whether the advice given by Dr Efe to Mrs Hooper that a free nipple graft should not be considered because it was invariably doomed to fail was justified, and in these circumstances, whether the advice given by Dr Efe was appropriate. Having regard however to the absence of any evidence adduced from Mrs Hooper that she would have chosen a procedure in the form of a free nipple graft in preference to a superolateral pedicle had that option been made available to her, it is not necessary to further consider this aspect of the claim.[10]
[10] Even if I were to be satisfied that both surgical options should have been put to Mrs Hooper as alternatives by Dr Efe and that Dr Efe’s failure to do so constituted a failure to provide Mrs Hooper with appropriate pre-operative advice, there is no evidence which could satisfy me that any such failure resulted in loss or damage being occasioned to Mrs Hooper.
22 Accordingly, I find that Mrs Hooper has failed to establish that part of her case which is based upon the allegation that Dr Efe failed to obtain informed consent to the surgery undertaken by her.
In choosing to manage Mrs Hooper’s Breast Reduction by the Performance of a Superolateral Pedicle Procedure, did Dr Efe Breach the Duty of Care owed by her to Mrs Hooper?
23 It is not in issue that a number of different surgical procedures are available for the performance of breast reduction surgery. Relevantly, these include:
• a superolateral pedicle procedure • an inferior pedicle procedure • a free nipple graft. 24 It is not in issue that each of these procedures involves the surgical reduction of the size of the breast by the excision of tissue and the re-positioning of the nipple. Essentially, the difference between the pedicle procedures and a free nipple graft is that, whereas in the former procedures the vascularity of the nipple is sought to be maintained by a pedicle which retains the connection of the nipple with a section of the original breast tissue and accordingly, to some part of the blood supply which was available to the nipple from the breast prior to any surgical intervention; a free nipple graft involves the removal of the nipples from the breast, the surgical reduction of the breasts by the excision of tissue, and thereafter, the re-positioning of the nipples as skin grafts. In a pedicle procedure the nipples retain some of their pre-existing vascularity and accordingly sensation in the nipples is preserved. A free nipple graft however requires the nipple and areola to re-establish their vascularity from the blood supply which is available in the position in which they are placed and the nipple, when relocated, loses all sensation.
25 When breast reduction surgery is undertaken in the form of a pedicle procedure on a large breast and the nipple is sought to be relocated a significant distance from its original location, an issue arises as to whether the vascularity provided to the nipple and areola, via the pedicle, will be sufficient to maintain their viability. The longer the pedicle, the greater the risk that the blood supply provided by the pedicle to the nipple will be inadequate. Further, in establishing any pedicle, it is important that it is established from an area which will provide an adequate supply of blood to the nipple and areola.
26 It is not in issue that the pre-operative size of Mrs Hooper’s breasts, the pre- operative position of her nipples and areolae and the position to which they were to be relocated, were all matters which would cause a competent surgeon to consider the length and width of the pedicle which would be required to maintain vascularity and whether, having regard to the length and width of the pedicle which was so required, the best management option for the surgery was the performance of a free nipple graft. Indeed Dr Efe expressed the opinion that a free nipple graft would have been her preferred choice in managing Mrs Hooper’s surgery, but that she discounted that procedure on the basis that it would be doomed to failure having regard to Mrs Hooper’s presentation with issues of poor healing and a history of ingestion of Arava which was likely to further impair her wound healing.[11]
[11] T 339 and T 361
27 Whilst issue is taken by Mrs Hooper as to the opinion formed by Dr Efe that a nipple graft was doomed to fail, the primary allegation levelled against Dr Efe is that in choosing to operate by performing a superolateral pedicle procedure and not an inferior pedicle procedure, Dr Efe unreasonably exposed Mrs Hooper to the risk which eventuated in her left breast, namely a partial failure in the vascularity of the left nipple and areola.
28 There is no issue in the proceeding that the performance of a breast reduction by establishing a superolateral pedicle is a recognised and acceptable method of management when undertaking a reduction of moderate-sized breasts.[12] It is Mrs Hooper’s case however, that having regard to the pre- operative size of her breasts and the length over which her areola and nipple were to be re-positioned, the management of her surgery by the performance of an inferior pedicle procedure was the “gold standard”[13] approach to the surgery. It is further asserted that the chance of failure of a free nipple graft was minimal, and that in these circumstances, it was inappropriate for Dr Efe to employ a superolateral pedicle procedure in preference to those procedures.
[12] See the evidence of Associate Professor Kimble at T 232 and that of Mr Kalus at T 357
[13] T 290
The Evidence Relied upon by Mrs Hooper in Support of her Case that Dr Efe’s Choice of Surgery in the form of a Superolateral Pedicle Procedure was Inappropriate
29 In support of her case, evidence was led on behalf of Mrs Hooper from four plastic surgeons: Mr Felix Behan, Mr Alan Kalus, Associate Professor Donald Marshall and Associate Professor Frank Kimble.
30 Whilst Mr Behan had no experience in the performance of a superolateral pedicle procedure, and in those circumstances did not comment upon the prospects of success associated with an inferior pedicle procedure when compared with a superolateral pedicle procedure, he accepted that the superolateral technique was employed in largish reductions of the order undertaken in the present case, that this position was a view held by other surgeons and that the procedure was accepted as proper medical practice in Australia.[14]
[14] T 186
31 In contrast, Mr Alan Kalus, in a report dated 23 July 2009, expressed the opinion that for an extremely large reduction, as was involved in the present case, the performance of a superomedial pedicle[15] –
“… was not a safe option in this case and would not (in 2004) be an
accepted procedure for this particular patient.”[16]
[15] Mr Kalus expressed the opinion that a superomedial pedicle possessed a superior blood supply to that of a superolateral pedicle but that both were only appropriate for small breast reductions – T 256
[16] JCB 77
32 In his evidence, Mr Kalus expounded upon the position which he had expressed in his report, commenting –
•
that both the superomedial and superolateral pedicles were appropriate only for small breast reductions;[17]
•
that the blood supply coming from the breast inferiorly was much better than that supplied superiorly;[18]
•
that the re-positioning of the nipple with an inferior pedicle rather than a superolateral pedicle was attendant with less risk of “kinking” the pedicle and thus interfering with the blood supply,[19] and he commented:
[17] T 257
[18] T 257
[19] T 257
“I don’t think any plastic surgeon acting in 2004, or any surgeon experienced in breast surgery, would have done anything other than an inferior pedicle or a free nipple graft for this case.”[20]
[20] T 258
33 In expressing that opinion, Mr Kalus commented that he could not think of any advantages associated with the employment of a superolateral pedicle.[21]
[21] T 260
34 Mr Kalus expressed these opinions from the position of a plastic surgeon, having practised for thirty years, and having undertaken some 500 superior pedicle procedures and some 1500 inferior pedicle procedures.[22]
[22] T 283
35 In a medical report dated 26 May 2010, Associate Professor Donald Marshall expressed the opinion that an inferior pedicle procedure had a much more reliable blood supply than a superolateral pedicle procedure and that it was the preferred method of managing the large breast reduction involved in the present case. He opined that, having regard to the less reliable blood supply of a superolateral pedicle when compared to an inferiorly based pedicle, the former was not an appropriate method for a very large breast reduction[23] and that the employment by Dr Efe of a superolateral pedicle procedure was inappropriate having regard to the associated unacceptable risk of vascular impairment.[24]
[23] JCB 83
[24] JCB 84
36 In the course of his evidence, Associate Professor Marshall opined that the vascularity of the superolateral pedicle “would have been relatively poor in relation to other procedures”[25] and that it was an uncommon procedure which was “not accepted as being part of the armamentarium of the average plastic surgeon”.[26] He said that the difference in vascularity between the two pedicles under discussion involved a very major difference and that the superolateral approach had been fundamentally abandoned after it was found to have a very high complication rate. He said that for various reasons associated with complications, a horizontal pedicle technique had –
“… fundamentally gone out of fashion for various reasons of complications and now the vertically disposed flaps, basically the inferiorly or superiorly, have become the gold standard of that type of breast reduction”.[27]
[25] T 290
[26] T 291
[27] T 290
37 In expressing his evidence, Associate Professor Marshall did so from the position in which he had performed both superomedial pedicle procedures and inferior pedicle procedures, having abandoned the superomedial approach –
“many, many years ago. But as I say, abandoned because of a high
rate of complications”.[28][28] T 305
38 In the course of his evidence, Associate Professor Kimble said that, having regard to the size of Mrs Hooper’s breasts and her potential healing problems, he would have employed a free nipple graft if he had been asked to manage her surgery. He recognised however that some plastic surgeons would have attempted a pedicle procedure, but said that an inferior pedicle was a much safer pedicle than the superolateral pedicle employed in the management of Mrs Hooper’s surgery.[29]
[29] T 219
39 Associate Professor Kimble described the inferior pedicle procedure as being a much more reliable pedicle procedure than the superolateral pedicle procedure by reason of its vascularity. He said that the employment of a superolateral pedicle procedure by reason of the method involved in positioning the nipple which involved “twisting or concertinaing the pedicle as it was re-positioned” was a further reason why an inferior pedicle procedure was preferable.[30] He opined:
[30] Whilst it was the opinion of Associate Professor Kimble that the twisting of the pedicle involved in the performance of a superolateral procedure was a potential source of compromise of the blood supply provided by the pedicle, there was evidence that the performance of an inferior procedure may require folding of the pedicle and that this was a potential source of compromise of the blood supply provided by the pedicle: (see the evidence of Dr Efe at T 376 and the evidence of Mr Carlisle at T 435). The evidence upon this issue does not persuade me that, in the circumstances of the present case, either pedicle should have been preferred or avoided by reason of this issue.
• that most plastic surgeons would not do a superolateral pedicle;[31] •
that whilst the superomedial pedicle was a recognised operation, it was an inappropriate operation in this patient because of the size of the breast reduction which was involved;[32]
•
that it constituted a poor choice in this patient and “I think the body of my colleagues would tend to agree with that”;[33]
• that when choosing the mode of operation – [31] T 228
[32] T 244. In expressing this opinion, I understood Associate Professor Kimble to be referring to surgery employing either a superomedial or superolateral pedicle.
[33] T 244
“you need to have an operation that works reliably, and in my hands that would not[34] – that operation would not work. And I can say in most of my colleagues’ hands, that operation would not work”.[35]
[34] Here, Associate Professor Kimble was making reference to a superolateral pedicle.
[35] T 233
The Evidence Relied upon by Dr Efe in Support of her Choice of Surgery in the form of a Superolateral Pedicle Procedure
40 In support of her decision to employ a superolateral pedicle procedure, Dr Efe expressed the opinion that such a pedicle procedure would provide the most reliable blood supply for Mrs Hooper.[36] In support of this position, Dr Efe relied upon her own expertise in anatomy which was supported by a published study entitled ‘Vascular Reliability of Nipple-Areola Complex - Bearing Pedicles: An Anatomical Microdissection Study’.[37]
[36] T 341
[37] Exhibit 4 on behalf of Dr Efe
41 Dr Efe said that she was concerned about the reliability of the blood supply associated with the performance of an inferior pedicle.[38] She said that, having regard to the distance involved in the re-positioning of the nipple and areola, the performance of an inferior pedicle would have required some folding of the pedicle and that she thought it more likely that the pedicle might be kinked in this process, thus causing a compromise in its vascular supply.[39]
[38] T 357
[39] T 377
42 Dr Efe opined that the blood supply coming to the breast inferiorly was not the most reliable blood supply to the breast even though it was generally adequate to support a pedicle.[40] She said that, whilst in Australia an inferior pedicle was typically employed in moderate-sized beast reductions, it was considered inadequate for larger reductions.[41]
[40] T 374
[41] T 375
43 In expressing her opinion as to the superior vascularity of the superolateral pedicle, Dr Efe was relying on her considerable knowledge of anatomy.[42]
[42] Dr Efe holds a Diploma of the Anatomical Society of Australia. She was a senior tutor in anatomy at the University of Melbourne and for two years worked overseas as a visiting professor in anatomy and embryology – T 343.
44 In this regard, it was put to Dr Efe that:
“Q: Anatomy might suggest one consequence but the clinical experience finds that there’s another?---
A: In medicine there are always exceptions to every rule; there’s always a deviation from the expected.”[43][43] T 384
45 This question and answer arose by reason of previous opinions expressed by both Associate Professor Marshall, who had opined when his attention was drawn to the cadaver study entitled: Vascular Reliability of Nipple-Areola Complex-Bearing Pedicles: an Anatomical Microdissection Study:[44]
“The fact that the anatomical dissections showed particular vascular
patterns is not necessarily transposed to the clinical situation.”[45]
and Associate Professor Kimble, who had opined:
“What happens in a Cadaver study doesn’t necessarily translate into
what happens in clinical practice.”[46]
[44] Dr Efe’s Exhibit 4
[45] T 300
[46] T 247. These opinions expressed by Associate Professor Marshall and Associate Professor Kimble were expressed in response to the findings of a cadaver study of the blood pathways available to a superolateral pedicle entitled ‘Vascular Reliability of Nipple-Areola Complex-Bearing Pedicles: an Anatomical Microdissection Study’ which is Dr Efe’s Exhibit 4. Having regard to their evidence and Dr Efe’s concession in the terms I have quoted, I accept the critical importance of clinical experience upon the issue as to the adequacy of the blood supply provided by a superolateral pedicle.
46 Mr Ian Carlisle, a plastic surgeon, gave evidence on behalf of Dr Efe in the proceeding.
47 In a report dated 30 April 2009, Mr Carlisle had commented, when asked whether it was reasonable for Dr Efe to undertake a bilateral breast reduction with superolateral nipple pedicles:
“The use of a superolateral pedicle in the technique of breast reduction, whilst a recognised procedure, is not commonly used in the plastic and reconstructive surgery fraternity.
Please note the results of a breast reduction trend amongst plastic surgeons in a national survey published in the Plastic and Reconstructive Journal in November 2008. Ref: 1.
You will note in this paper that a superolateral pedicle did not attract a mention.
There would have been a number of alternatives to use in a superolateral pedicle in the case of Ms Bronwyn Hooper.
In cases of suspect wound healing, some surgeons would consider performing a procedure using a free nipple graft.
Most I believe would have chosen an inferior pedicle technique.”
48 In a further report dated 7 June 2010, Mr Carlisle stated:
“I believe that the superolateral pedicle is a recognised technique.”
49 Mr Carlisle provided a reference supporting this statement, namely an article published in the Journal of Plastic and Reconstructive Surgery entitled ‘Superolateral Pedicle for Breast Surgery: An Operation for All Reasons’[47] (“the Strauch paper”).
[47] Dr Efe’s Exhibit 2.
50 In the course of viva voce evidence, Mr Carlisle said that a superolateral pedicle procedure was a recognised surgical procedure to be employed in breast reductions of the size involved in the surgery undertaken upon Mrs Hooper.[48] In expressing this opinion, it was clear that Mr Carlisle relied upon the Strauch paper.[49] Mr Carlisle said that whilst most plastic surgeons trained in Australia would probably make use of an inferior pedicle, this choice was probably dictated by the fact that this procedure was designed in Australia and that its choice for use in Australia was associated with the fact that Australian practitioners had been “educated into it”.[50] Mr Carlisle said that he had no particular experience in the superolateral pedicle procedure other than employing that technique on two occasions in training. He said that he had not needed to employ a superolateral pedicle because:
“I was taught and brought up with the inferior pedicle in Australia. As I said, that because I have been comfortable with the results from that procedure, I have had no reason to change. In terms of if I was brought up in Berish Strauch’s unit, then I would probably be saying the same thing with regard to a superolateral pedicle.”
[48] T 419
[49] Exhibit D2
[50] See the evidence at T 420 and T 422
51 When it was put to Mr Carlisle that the superolateral technique was really appropriate for smaller reductions in the order of 400 to 600 grams, he commented:
“I have no personal experience; the only two – if you’d like me to comment on it, I can only comment on the literature which you have a copy of.”[51]
[51] T 440. Mr Carlisle was here referring to the Strauch paper
52 When the evidence of Mr Kalus that the superolateral pedicle was not suitable for the surgery undertaken on Mrs Hooper was put to Mr Carlisle, he replied:
“I don’t think that’s a fair comment.”[52]
and explained his answer in the following terms:
“That may very well be Mr Kalus’ comment on the 500 or so that he did on supposedly smaller breasts. I can only really refer you to the 2006 paper by Berish Strauch.”[53]
[52] T 442
[53] T 443
53 Mr Carlisle said that, having regard to Mrs Hooper’s presentation, he would have treated her by employing an inferior pedicle technique[54] and that whilst he would have considered a free nipple graft, the extent of the reduction which was required would have fallen into the range where he would have been comfortable performing an inferior pedicle.[55]
[54] T 443
[55] T 444
54 As I previously commented, there is no issue in the case that a superolateral pedicle is a recognised procedure to be employed in breast reduction procedures in the course of which a modest amount of tissue is to be removed. The issue which arises in this case however is whether a superolateral pedicle was an appropriate procedure for use in a large breast reduction in which the tissue quantity to be removed was to be in the vicinity of 1.5 kilograms. Mr Carlisle opined that a superolateral pedicle was a recognised procedure to be employed in surgery of precisely that type. In expressing that opinion, Mr Carlisle acknowledged that he did so, not relying upon his clinical experience, but in reliance upon the Strauch paper.
55 Generally, I found the evidence given by Mr Carlisle in support of the employment by Dr Efe of a superolateral pedicle procedure as being unconvincing. Mr Carlisle gave me the impression that he came to Court with an agenda, being to support Dr Efe, rather than for the purpose of providing an impartial expert opinion. My impression in this respect arises for the following reasons:
•
In the course of cross-examination, Mr Carlisle repeatedly provided non- responsive answers in which he gratuitously introduced the efficacy of the superolateral pedicle procedure.[56]
•
The evidence by Mr Carlisle that the Strauch paper was the result of a significant study and that it justified his unequivocal support for the use by Dr Efe of a superolateral pedicle in undertaking the breast reduction in question was, in my opinion, based on a shallow analysis of that paper and the authors’ conclusions. Mr Carlisle repeatedly drew attention to the fact that the study, the subject of the paper, represented an analysis of the results of 1500 cases, commenting;
[56] See, for example, the Questions and Answers at T 431, L8-13; T 436, L28 – T 437, L15; T 438, L17 – T 439, L10
“I think Berish Strauch has made a very strong case, almost equivalent to the case of using an inferior pedicle, for using the superolateral pedicle. And that's a contemporary paper from a very recognised institution by a very well recognised plastic surgeon.” [57]
The paper however provided no information as to the number of breast reduction procedures of the size involved in Mrs Hooper’s operation which were actually included in the study. In the absence of any knowledge of the number of procedures within the study group which involved breast reductions of the magnitude involved in the present case, I do not consider that the recommendations of the authors could be relied upon as making a definitive statement upon the efficacy of a superolateral pedicle in treating a very large breasted woman.
[57] T 432
56 Having regard to the reliance upon the Strauch paper in the course of the case presented on behalf of Dr Efe, it is appropriate that I consider the paper in detail to assess whether the conclusions by the authors can be appropriately relied upon in support of the surgery undertaken by Dr Efe.
57 In their paper, ‘Superolateral Pedicle for Breast Surgery: An Operation for All Reasons’, the authors refer to the results of more than 1500 breast procedures which had been performed during the years between 1999 and 2004 in which a superolateral pedicle had been employed. These procedures are described as including reduction mammoplasty and mastopexy procedures involving alternative resection techniques described by the authors in the following terms:
“For many years, the procedure was performed using a modified Wise pattern only, for skin excision. During the past five years … a vertical pattern of skin and breast excision has been offered to patients.”[58]
[58] JCB 130
58 The authors establish a simple classification system to describe the surgery the subject of the review paper which categorised the surgery in operation type as follows:
“Type I: Superolateral dermoparenchymal pedicle using the modified
Wise pattern.Type Ia: Reduction mammoplasty of 1200 grams per patient or more. Type Ib: Mastopexy for ptosis with minimal to no reduction of breast
parenchyma.Type Ic: Reduction mammoplasty with free nipple graft. Type II: Superolateral dermoparenchymal pedicle using the vertical
pattern.Type IIa: Reduction mammoplasty of 1200 grams per patient or less. Type IIb i: Mastopexy for ptosis. Type IIb ii: Mastopexy ptosis with mammary prosthetic implant.”
59 It can be seen merely by a consideration of this classification system that the procedures which formed part of the study population included seven procedures of little relevance to the surgery undertaken upon Mrs Hooper, which would fall within Category la.
60 In Type Ia procedures, the authors describe the performance of a superolateral pedicle via a breast resection with incisions being made perpendicular to the chest wall following the “Wise pattern” in which excess skin, breast and fat is excised to the level of the pectoralis major fascia.[59] Where the pre-operative distance between the nipple and the sternal notch exceeded 40 centimetres however, the authors recommended the employment of a superolateral pedicle with a free nipple graft.[60] The authors commented upon this issue as follows:
“The Wise-type pattern reduction is currently reserved for larger reductions with a nipple areola sternal notch distance of up to 40 centimetres. Wise-type pattern reductions with free nipple grafts are performed in larger breasted patients with nipple areola distances of 40 centimetres or more. The vertical reductions are currently performed more commonly in reductions of 1200 grams or less and nipple areola distances of 35 centimetres or less.”[61]
[59] JCB 131
[60] JCB 131-132
[61] JCB 136
61 Whilst the paper is silent as to the number of procedures within the study population which involved a breast reduction of the size of that in the present case, the authors make it clear that their endorsement of a superolateral pedicle, without relying upon a nipple graft, is confined to cases where the pre-operative distance between the nipple and the sternal notch does not exceed 40 centimetres and a Wise-type pattern resection is undertaken. Further, the paper recommends that if a superolateral pedicle without a free nipple graft is to be employed in the presence of a pre-operative distance of more that 40 centimetres between the nipple and the sternal notch, the new nipple areola area may be located further away from the sternal notch at a distance from the sternal notch of between 29 and 31 centimetres.[62]
[62] Whilst the distance between the relocated nipple and the sternal notch is generally recommended by the authors as being between 21 centimetres and 25 centimetres, the authors recommend that a site as far away as 31 centimetres may be employed in circumstances where the pre-operative distance exceeds 40 centimetres and a nipple graft is not employed (JCB 131).
62 I am of the opinion that the Strauch paper provides, at best, qualified support for the employment by Dr Efe of a superolateral pedicle as the method for managing Mrs Hooper’s presentation for the following reasons:
(i)
In the present case, the evidence as to the pre-operative distance between Mrs Hooper’s sternal notch and the position of her nipple areola is unclear as Dr Efe did not employ that measurement as a method of assessing the suitability of the proposed procedure.
ƒ Dr Efe gave evidence that Mrs Hooper presented with: “Quite large ptotic breasts, meaning that the nipple was hanging quite significantly lower than the inframammary crease line, and I estimate that to be about 15 centimetres.”[63]
[63] T 339
ƒ
Dr Efe explained that her aim in undertaking the surgery was to relocate the nipples between 5 and 10 centimetres above the inframammary crease, such that they were positioned between 22 and 24 centimetres below the sternal notch.[64] She agreed that this involved moving the nipples through a distance of between 18 and 20 centimetres.[65]
ƒ
The measurements given by Dr Efe would suggest, on one view of her evidence, that the pre-operative distance between the position of Mrs Hooper’s nipple areola area and her sternal notch was somewhere between 42 and 49 centimetres, and on another view, between 40 and 44 centimetres.[66] It is only at the extreme minimum of the latter range that the Strauch paper supports the use of a superolateral pedicle in the absence of a nipple graft. In all other cases, a superolateral pedicle is contra indicated in the absence of a free nipple graft if it is intended to relocate the nipples in a position 22 centimetres below the sternal notch.
[64] T 371
[65] T 372
[66] At T 371, Dr Efe described the pre-operative distance between the inframammary crease and the existing nipple position as 15 centimetres. She estimated that she would be required to re-position the nipple between 5 and 10 centimetres above the level of the inframammary crease so as to achieve a relocated position for the nipple approximately 22 to 24 centimetres from the sternal notch. On the basis of this evidence, the pre-operative distance between the nipple and the sternal notch was between 42 and 49 centimetres. At T 372, Dr Efe agreed that in order to achieve a post- operative position of the nipple at approximately 22 centimetres from the sternal notch, she would be required to move the nipple through a distance of in excess of 18, 19 or 20 centimetres. On the basis of this evidence, the pre-operative position of the nipple was between 40 and 42 centimetres below the sternal notch. The Strauch paper supports the use of a superolateral pedicle in circumstances in which the pre-operative distance between the nipple areola area and the sternal notch was up to 40 centimetres. In patients with pre-operative sternal notch-nipple areola distances of 40 centimetres or more, it recommended that a nipple graft be employed so that the post-operative nipple areola area be located up to 31 centimetres below the sternal notch.
(ii) There is no evidence as to the method of resection employed by Dr Efe in undertaking the procedure. This issue was never raised with Dr Efe and the notes of her operation do not comment upon whether she employed a Wise-type pattern resection (which was recommended if the sternal notch-nipple distance did not exceed 40 centimetres) or a vertical resection (which is not recommended).
63 Given the evidence as to the pre-operative distance between the nipple areola area and the sternal notch, and the absence of any evidence as to the method of resection employed by Dr Efe, I am of the opinion that the support provided by the Strauch paper for the decision by Dr Efe to employ a superolateral pedicle procedure in the absence of a nipple graft is at best questionable. This finding further reinforces my concerns as to the evidence given by Mr Carlisle in support of the employment by Dr Efe of a superolateral pedicle, in that Mr Carlisle was completely reliant upon the findings of the Strauch paper in expressing that support.
Findings as to whether, in employing a Superolateral Pedicle Procedure, Dr
Efe was in Breach of the Duty of Care which she owed to Mrs Hooper64 Dr Efe presented as a competent breast surgeon. Her thoroughness in eliciting and documenting Mrs Hooper’s complicated medical history, insofar as it was relevant to her proposed surgery, was complimented by each of the expert witnesses who gave evidence in the proceeding. I am of the opinion that an allegation that an otherwise competent surgeon has employed a surgical procedure which was inappropriate, is one which I should apply careful scrutiny to and should be reluctant to uphold in circumstances in which the practice of medicine invariably involves value judgments about which reasonable minds may differ. I am cognisant of these matters when considering the appropriateness of the decision by Dr Efe to employ a superolateral pedicle procedure in treating Mrs Hooper.
65 There are however a number of factors which cause me to question Dr Efe’s experience, judgment and expertise in performing the surgery the subject of the present complaint, namely:
•
The failure by Dr Efe to undertake pre-operative measurements of the distance between the nipple and the sternal notch is difficult to understand and was never explained.[67] Whilst it may have arisen because Dr Efe regarded the employment of a superolateral pedicle as the only management option available to her, it suggests the presence of a flawed approach in assessing the suitability of the surgery given the fact that the distance involved was at the very limit of that recommended in the Strauch paper and perhaps considerably more. In my opinion this is particularly so, given the fact that the Strauch paper recommends that if a superolateral pedicle is to be employed in the presence of a pre- operative distance of 40 centimetres or more between the nipple and the sternal notch, the new nipple areola area should be located further away from the sternal notch (no doubt to reduce the length of the required pedicle).[68]
•
It is clear that Dr Efe was concerned as to the risk of complications associated with the performance of a superolateral pedicle. The presence of that concern is reflected in her evidence that a free nipple graft would have been the preferred choice by most surgeons and that her choice of a superolateral pedicle was a compromise which she made by reason of her opinion that a free nipple graft was “absolutely doomed to failure”.[69] Dr Efe was the only witness to express the view that the performance of a free nipple graft was contraindicated because that procedure had no chance of succeeding. Associate Professor Kimble opined that the chances of survival of a free nipple graft in a healthy patient was in the vicinity of 98 per cent, and in Mrs Hooper’s case, approximately 80 per cent. Mr Kalus described the risk of a free nipple graft failing as being less than 10 per cent. Associate Professor Marshall opined that the incidence of failure of a free nipple graft would have been very minimal in the hands of a plastic surgeon. Mr Carlisle opined that the risk of death of tissue and nipple loss associated with a free nipple graft would have been similar to that associated with an inferior pedicle and said that he did not subscribe to the view that a free nipple graft would inevitably have resulted in loss of the nipple. Mr Behan opined that the chance of the failure of that procedure might be 20 or 30 per cent.[70] Given these expressions of opinion, I am satisfied that not only was Dr Efe mistaken in her view that a free nipple graft would invariably fail, but that there was no sound basis upon which that view could be held. That Dr Efe excluded the performance of her preferred form of management of Mrs Hooper’s presentation in the form of a free nipple graft, because she wrongly assessed this procedure as being invariably doomed to fail, in my opinion, points to an error in the thought process employed by Dr Efe in assessing the surgical approach best suited to the management of Mrs Hooper’s surgery.
• The conflict between: [67] The significance of this measurement was stressed in the Strauch paper by Mr Kalus in his
[68] Whilst the distance between the relocated nipple and the sternal notch is generally recommended by the authors as being between 21 centimetres and 25 centimetres, the authors recommend that a site as far away as 31 centimetres may be employed in circumstances where the pre-operative distance exceeds 40 centimetres and a nipple graft is not employed (JCB 131).
[69] T 373. See also Dr Efe’s evidence at T 383 in which she expressed the view that whilst normally a free nipple graft would be the better procedure, it was not the right procedure for the plaintiff given her poor wound healing and her use of Arava.
[70] See the evidence of Associate Professor Kimble at T 234 and T 247; Associate Professor Marshall at
(i) the evidence of Dr Efe, who called into question the adequacy of the vascularity of an inferior pedicle procedure, and that of each of the other expert witnesses who opined that the vascularity of an inferior pedicle procedure was certainly adequate;
(ii) Dr Efe’s assertion that an inferior pedicle procedure was appropriate for a moderate-sized breast reduction, but that its use was questionable in larger breast reductions, and the expert evidence which was generally to the opposite effect on this issue;
raises in my mind questions as to Dr Efe’s experience in this area of surgery generally, and the validity of the approach taken by her in deciding upon her choice of operative procedure.
•
The reliance by Dr Efe upon her knowledge of anatomy to support her opinion that a superolateral pedicle, if employed in treatment of Mrs Hooper, would provide better vascularity than an inferior pedicle; whilst ignoring clinical experience, in circumstances in which the translation between anatomical analysis and clinical experience may vary;[71] in my opinion suggests that Dr Efe may have been placing too much reliance upon her undoubted expertise in anatomy in deciding whether a superolateral approach was appropriate in the management of Mrs
Hooper’s presentation. . • That Dr Efe had, prior to Mrs Hooper’s surgery, performed only one similar breast reduction in terms of size and that this reduction had also encountered problems similar to those encountered by Mrs Hooper[72] also raises questions in my mind as to whether Dr Efe’s choice of surgery in the circumstances of the present case was appropriate. [71] The evidence of Dr Efe at T 384, Associate Professor Marshall at T 300 and Associate Professor Kimble at T 247 satisfies me that whilst an anatomical analysis is an appropriate starting point for the consideration of the potential vascular flow which may be associated with a particular procedure, in the final analysis, clinical experience must provide the ultimate answer.
[72] See Dr Efe’s evidence at T 371 and T 387
66 When these matters are considered in the light of the fact that Dr Efe had, during the ten years in which she was performing breast reduction surgery, undertaken only fifty or so breast reduction procedures, I am satisfied that the surgery to be undertaken upon Mrs Hooper was not an operative area which formed a major part of her practice and that I should be cautious before relying upon Dr Efe’s opinion that a superolateral pedicle was an appropriate operative choice when opinions to the contrary have been expressed by a number of plastic surgeons who possess vastly greater experience.
67 Generally I found the evidence given by Associate Professor Kimble, Associate Professor Marshall and Mr Kalus to be persuasive. The evidence of each of these witnesses was well-reasoned and given by plastic surgeons who possessed vastly superior clinical experience in the performance of breast reduction surgery to that of Dr Efe. Each of these witnesses regarded the employment of a superolateral procedure as being inappropriate, in that this procedure gave Mrs Hooper the least chance of avoiding complications in the form of impaired vascularity and the development of fat necrosis. I also prefer the evidence of these witnesses upon this issue to that of Mr Carlisle whose evidence on the issue I found not to be persuasive for the reasons I have previously indicated.
68 Further, not one of the expert medical witnesses called by either party would have performed a superolateral pedicle procedure in managing Mrs Hooper’s presentation. Whilst this in itself does not speak as to whether the choice of the procedure by Dr Efe was so inappropriate as to breach the duty of care which she owed to Mrs Hooper, it does speak upon the issue of the relative novelty of Dr Efe’s choice and, in doing so, again raises questions as to her experience in this area of surgery generally and as to the soundness of her judgment, which I consider to be factors which I should take into account in my decision-making process.
69 I accept that Dr Efe would have been in a superior position to assess the mode of surgery to be undertaken upon Mrs Hooper when compared with the position of the surgeons who have examined Mrs Hooper post-operatively, by reason of Dr Efe’s ability to assess the pre-operative condition of Mrs Hooper’s breasts. I am not persuaded however that this factor should cause me to prefer Dr Efe’s opinion upon this issue to the opinions expressed by Associate Professor Kimble, Associate Professor Marshall and Mr Kalus for the reasons I have earlier mentioned.
70 Finally, although Dr Efe points to the evidence given by Mr Behan[73] as providing support for her choice of surgery; at the time at which Mr Behan expressed this opinion the precise detail as to the distance between the pre- operative position of the nipple areola area and the sternal notch had not been made known to him. In these circumstances, I am of the opinion that the weight of this evidence is so devalued as to be unpersuasive.
[73] Mr Behan opined that the performance of a superolateral pedicle in a reduction of the type undertaken upon Mrs Hooper constituted proper medical practice in Australia - T 186.
71 When consideration is given to all the issues to which I have referred, including:
• the strong statements of condemnation expressed by Associate Professor Marshall, Associate Professor Kimble and Mr Kalus as to Dr
Efe’s choice of operation mode;
• the issues which arise as to the approach taken by Dr Efe in arriving at her decision as to the choice of surgery; and these factors are considered in the context of the total absence of what I consider to be any independent informed opinion in support of Dr Efe’s choice of a superolateral pedicle; I am satisfied that in choosing to employ that procedure in managing Mrs Hooper’s surgery, Dr Efe unnecessarily exposed Mrs Hooper to an increased risk of developing complications in association with her surgery which should have been avoided, and that in doing so Dr Efe failed to employ the care which could reasonably be expected of a surgeon practising in the area of breast reduction surgery.
72 Accordingly I find that in employing a superolateral pedicle in managing Mrs Hooper’s breast reduction surgery, Dr Efe was in breach of the duty of care which she owed to Mrs Hooper.
73 In making this finding, I am satisfied that Dr Efe was not justified in employing a superior pedicle when undertaking Mrs Hooper’s surgery by reason of her lack of experience in the performance of alternate procedures. Although in expressing his opinion as to the factors which may influence a surgeon to employ a particular surgical technique, Mr Carlisle commented:
“So I think that whilst we've been brought up in Australia using the inferior pedicle - so it's a procedure that we're actually comfortable with, equally there are people that are brought up on a superolateral pedicle, and have performed it many times, that are comfortable with that procedure. So they would choose that over an inferior pedicle which they may not have had any experience with. So the techniques involved that are going to be used are the techniques that that surgeon is going to feel comfortable using.”[74]
[74] T432
and this passage of evidence was adopted in a general fashion by other experts;[75] and whilst Dr Efe had no experience in performing a free nipple graft and extremely limited experience in performing an inferior pedicle;[76] I do not consider that this justified Dr Efe’s choice to employ a superolateral pedicle in managing Mrs Hooper’s surgery in circumstances in which I have found that this procedure;
(i) exposed to Mrs Hooper to an increased risk of developing complications in association with her surgery which should have been avoided;
(ii) constituted an inappropriate mode of managing Mrs Hooper’s presentation;
when the option existed of referring Mrs Hooper to another surgeon who
possessed the relevant experience.[75] Mr Behan described the practice of surgeons as employing: “… recipe surgery that gives you the best results with the less complications. It’s unlikely they would change their recipe for the surgical reduction, depending on the volume of the patient that presents that day” - T 183; Associate Professor Kimble accepted that surgeons had their preferences and their training and that this would influence the approach they took to a particular procedure if they were happy with the results obtained in using that procedure - T 226.
[76] In her fifty previous procedures Dr Efe had performed an inferior pedicle on only one occasion - T 359.
The Consequences of the Choice by Dr Efe to Employ a Superolateral Pedicle
Procedure74 It is not in issue that tissue necrosis associated with an impaired vascular supply is a recognized complication associated with breast reduction surgery. In the present case, the issues requiring determination are whether Mrs Hooper developed tissue necrosis in her left breast by reason of the presence of impaired blood supply in association with the superolateral pedicle procedure performed by Dr Efe and, if that consequence did arise, would it have been avoided by the employment by Dr Efe of an inferior pedicle procedure or a free nipple graft.
(a) Was there a failure to maintain an adequate vascular supply to the nipple areola area which resulted in tissue necrosis? 75 In the course of his evidence, Mr Carlisle opined that:
“… the nipple actually survived on the superolateral pedicle, there is no evidence to me that there’s been a gross loss of nipple from the use of the superolateral pedicle on those photographs that I have seen here today.”[77]
[77] T 432-433
and that, in these circumstances, the superolateral pedicle in this particular
case provided the nipple and areola with a good blood supply.[78][78] T 433
76 Mr Carlisle expressed this opinion having been shown photographs taken by Associate Professor Kimble when Mrs Hooper presented to him in December 2004.
77 Mr Carlisle however was alone in voicing that opinion.
153 I accept that Mrs Hooper’s loss of employment arose by reason of her absence from employment in association with the treatment she received at the hands of Mr Wilkinson. I am satisfied that this is likely to have had a very significant impact upon her emotional state at the time at which it occurred, having regard to the evidence given both by Mrs Hooper and her sister as to the importance to her of that job. In considering the impact of this factor upon her entitlement to damages however, I take into account the fact that shortly after she lost her job, Mrs Hooper’s pre-existing medical condition intervened so that she would not, in any event, have been able to maintain her employment.
154 I am satisfied that Mrs Hooper’s breasts are disfigured, in that they are asymmetrical, the left nipple has minimal projection, and that both breasts contain unsightly “dog ears”.[137] I am further satisfied that Mrs Hooper remains concerned about the appearance of her breasts and that this concern impacts adversely upon her day-to-day life to a significant degree in the manner described by both her husband and her sister.
[137] See the findings on examination of Mr Behan in his report dated 20 August 2007 and the photographs appended thereto - JCB 53-70; and the findings on examination of Associate Professor Marshall in his report dated 29 May 2010 - JCB 81.
155 I accept that the behaviour of Mr Hooper during his wife’s treatment and convalescence upon her return to Tasmania in September 2004 exposed her at that time to very significant stress and, further, that since that time:
[138] See in particular, the evidence of Mr Hooper at T 151-152.
• Mrs Hooper’s relationship with her husband has not returned to the relatively harmonious relationship which existed previously; • There has been a significant deterioration in the physical relationship between Mrs Hooper and her husband and that the cessation of their intimate relationship has been materially contributed to by the difficulties described by Mr Hooper in the course of his evidence.[138] 156 In the circumstances, I consider it appropriate to assess the general damages to which Mrs Hooper is entitled in the sum of $125,000.
157 The parties agree that Mrs Hooper has incurred medical and like expenses in the sum of $1,000 and that she is entitled to a verdict in that sum.
158 With respect to the claim made by Mrs Hooper for lost earnings, an issue arises as to whether the leave taken by Mrs Hooper in September 2004 was for a period of one or two weeks. I understand the issue which arises to involve whether or not, in those circumstances Mrs Hooper’s entitlement to damages for loss of income should be assessed over a twelve-week or thirteen-week period. Although Mrs Hooper gave evidence that she had taken only one week of leave in order to travel to Tasmania, whilst in Tasmania she made contemporaneous statements that she was to be there for two weeks.[139] In these circumstances, I am satisfied that the appropriate period which should be fixed for loss of earnings is the period between 1 October and 23 December 2004, being a period of twelve weeks.
[139] See the evidence of Dr Douglas at T 166.
159 Whilst issue was taken on behalf of Dr Efe as to Mrs Hooper’s net weekly wage rate as at 15 September 2004, I accept the evidence given by Mrs Hooper, that at that time she was earning a gross wage of $800 per week and a net wage of $600 per week. I am satisfied that any apparent discrepancy between this rate of earnings and the gross income declared in Mrs Hooper’s 2003-2004 taxation return arises by reason of the fact that she did not commence her employment with Dorevitch Pathology until January 2004, and that she was absent from work for some months during the second part of the 2004 financial year by reason of the injury to her ankle and her convalescence from the surgery undertaken by Dr Efe.[140]
[140] In particular, the evidence at T 122, L27 to T 123, L3 in combination with the evidence at T 125, L1, supports this finding.
160 Accordingly, I fix Mrs Hopper’s loss of earnings in this proceeding at $7,200.
161 The parties agree that I should allow a superannuation rate calculated at 9 per cent of Mrs Hooper’s gross weekly wage during the period of her incapacity. Accordingly, I fix her entitlement to past loss of superannuation benefits in the sum of $684.
162 In summary, I fix the damages in this proceeding as follows:
General damages $125,000.00 Loss of income $7,200.00 Loss of superannuation $684.00 Medical expenses $1,000.00 __________
Total: $133,884.00 ==========
163 I will hear submissions from the parties as to the judgment which is to be entered in favour of Mrs Hooper in this proceeding and upon the issue of costs.
- - -
evidence at T 255.
T 304; Mr Kalus at T 259; Mr Carlisle at T 445 and Mr Behan at T 71. I note, however, that in expressing his opinion, Mr Behan qualified his opinion by commenting that he had no experience in performing a free nipple graft.
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