Kent v Edwards
[2009] WADC 5
•23 JANUARY 2009
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: KENT -v- EDWARDS [2009] WADC 5
CORAM: O'BRIEN DCJ
HEARD: 8-11 & 15 DECEMBER 2008
DELIVERED : 23 JANUARY 2009
FILE NO/S: CIV 905 of 2006
BETWEEN: MARTIN JAMES KENT
Plaintiff
AND
MARK EDWARDS
Defendant
Catchwords:
Medical negligence - Alleged breach of duty to inform of risks and procedures - Whether consent to surgery - Whether assault and battery - Turns on own facts
Legislation:
Nil
Result:
Plaintiff's claim dismissed
Representation:
Counsel:
Plaintiff: Mr K J Bradford
Defendant: Mr A S Derrick
Solicitors:
Plaintiff: Bradford & Co
Defendant: Clayton Utz
Case(s) referred to in judgment(s):
Chappel v Hart (1998) 195 CLR 232
Chatterton v Gerson [1981] QB 432
F v R (1983) 33 SASR 191
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506
Naxakis v Western General Hospital (1997) 197 CLR 269
Purkess v Crittenden (1965) 114 CLR 164
Rogers v Whittaker (1992) 109 ALR 625
O'BRIEN DCJ:
The plaintiff's case
The plaintiff is a general surgeon. The defendant is a cardiothoracic surgeon. In February 2004, the defendant performed a thoracoscopy and biopsies on pleural thickening and a small area of the plaintiff's lung.
The plaintiff claims that the defendant breached his duty of care to the plaintiff by failing to inform the plaintiff about certain aspects of the procedure and failing to give him certain advice about it. Further, the plaintiff claims that the performance of the biopsies was unnecessary and negligent and were done without his consent. As the biopsy of the lung tissue was performed without consent, the plaintiff claims that the defendant committed and assault and battery on him.
The plaintiff claims damages for pain and suffering, gratuitous services and loss of income.
The plaintiff's background
The plaintiff is a 51‑year‑old general surgeon.
He graduated from university in 1982.
Thereafter his experience included working as an intern at Fremantle Hospital for two years; study leave for his primary examination for surgery for one year; obtaining surgical fellowships from Edinburgh, Glasgow and London; working in England for over a year; working as a senior registrar in Adelaide for one year; and working for one year at the Port Hedland Regional Hospital as a general surgeon.
For the last seven years the plaintiff has practised as a general surgeon from private rooms. Most of his work is done at public hospitals. He also does some work in private hospitals.
He is presently chairman of the Medical Advisory Committee at Bentley Hospital. This committee is primarily concerned in clinical governance. He said about 20 per cent of that work is involved with informed consent.
Relevant medical conditions and asbestos exposure
In 1988 the plaintiff developed a spontaneous left pleural effusion. He said he developed pain in the chest and x‑ray revealed fluid on the lung.
He consulted Dr Richard Tarala who is a respiratory physician. The condition resolved without complications.
In 2001 the plaintiff was assaulted by a neighbour and had some chest pain following that. He did not require any medical intervention.
The plaintiff testified that he has been exposed to asbestos. The first time was when he was 16 years of age and worked in the boiler room of a ship at the Fremantle wharf. There was no protective equipment and he was exposed to heavy asbestos dust in that environment.
He said that he and his ex-wife also stayed overnight at Wittenoom Gorge but it was not a particularly windy day and he was unable to recall that he saw any clouds of asbestos dust.
About six months before the operation he was working on the plumbing at his house and used an angle grinder to cut into the asbestos to access the plumbing. He said he wore a duckbill mask which was taped down and a hat and hosed down the entire area afterwards.
Events which precipitated the operation
The plaintiff testified that early in 2004 he was vigorously cleaning the sides of a picket fence when he developed some pain in his left chest.
A week later when doing the same job the pain returned and would not go away.
However, the pain did not prevent him from his exercise regime.
At the time he was working out on a new gym machine in order to build up his upper body strength.
He arranged an x-ray himself; spoke to Dr Tarala about the x-ray; and then arranged a CT scan.
Results of radiology
The x-ray report dated 27 January 2004 revealed, "left‑sided pleural reaction and probable parenchymal scarring, possibly long standing". The lung fields were otherwise clear. The heart and cardio‑mediastinal contour appeared normal.
The thoracic CT report dated 27 January 2004 reported:
"Dense pleural thickening with irregular areas of calcification are confirmed anteriorally and anterolaterally at the left lung base. Subjacent areas of irregular but well-defined areas of parenchymal scarring are present.
There is no evidence of diffuse interstitial pulmonary fibrosis and there is no evidence of any underlying emphysema. No pleural abnormality is seen elsewhere. Therefore the changes are almost certainly focal and old and most likely post‑traumatic in nature."
The plaintiff testified that he did not know what the CT report meant.
Relevant biopsy procedures
Before continuing with the narration of evidence, I explain briefly the meaning of certain terms used in the evidence.
Abram's needle
This is a three-piece instrument including a needle which is used to biopsy tissue. It extracts tissue via a little notch on the needle. The surgeon knows by feel where the relevant tissue is located. One expert witness referred to it as a "blind procedure". This instrument is only peripherally relevant in this case. During the trial the plaintiff abandoned his claim that the defendant should have biopsied tissue using the Abram's needle.
CT guided core needle biopsy
A core needle biopsy involves the insertion of a needle into the tissue and the removal of a sample of tissue. The procedure is done with the CT assistance so that the surgeon can see where to place the needle. I shall refer to this procedure as a "core needle biopsy".
As I understand the evidence, reference therein to a "punch biopsy" refers to a biopsy performed either with an Abram's needle or a CT guided core needle biopsy.
The plaintiff maintains his claim that the defendant should have performed a core needle biopsy.
Excision biopsy
An excision biopsy is the surgical removal of tissue. The defendant used this method when operating on the plaintiff.
Thoracoscopy
The defendant testified that a thoracoscopy is an inspection of the inside of the chest cavity. Between one and three, sometimes more, small incisions are made in the chest wall for the insertion of a camera and various instruments. The biopsy can be anything from a sample biopsy to an excision biopsy. This depends on the pathology and the requirements of the procedure. It requires collapsing the lung in order to visualise the inside of the chest cavity and requires the insertion of a tube at the completion of the thoracoscopy to re‑inflate the lung.
It is clear from the plaintiff's evidence that he understood this to be the procedure of thoracoscopy.
Thoracotomy
There was scant evidence about this procedure as on the first day of the trial the plaintiff abandoned his claim that the defendant had performed a thoracotomy on him without his consent. Thoracotomy involves a procedure whereby the chest wall is opened in order for a biopsy and other procedures to be performed.
The relevant physiology of the lung
The witnesses refer to the abnormality found on radiology as the "pleural thickening" or "pleural plaque". The pleura are the thin coverings which protect and cushion the lungs. Pleura are made of up two layers which are separated by a small amount of fluid. The parietal pleura is the layer which is against the chest wall. The visceral pleura is the other layer which is against the surface of the lung.
The plaintiff's claim
Duty to inform/advise
In par 6 of the statement of claim the plaintiff pleads that the defendant was under a duty of care to advise the plaintiff:
6.1That the pleural thickening was likely benign asbestos related pleural disease;
6.2That there would be no benefit to the plaintiff in taking a biopsy of the pleural thickening or surgically removing it;
6.3That surgery in the circumstances was not indicated;
6.4Of the relative risks of injury and complication between methods of biopsy and to offer the plaintiff a core needle biopsy; and
6.5To reassure the plaintiff that his condition was benign and to refer him back to a respiratory physician to wait and undergo repeat x‑rays to monitor the pleural thickening.
As to the duty to inform, the defendant accepts that he had a duty to inform the plaintiff of the risks and complications of a thoracoscopy and biopsy.
The plaintiff claims that the defendant breached his duty of care in that he did not inform the plaintiff as pleaded and that the defendant recommended surgery by way of thoracoscopy and possible thoracotomy. Further, it is pleaded that the defendant failed to recommend and advise the plaintiff to consult a respiratory physician and to do nothing and wait and undergo repeat radiology to monitor the pleural thickening.
The plaintiff also claims that the defendant breached his duty of care by performing the surgery as the surgery was contraindicated and the plaintiff did not consent to removal of lung tissue.
Assault and battery
The plaintiff also pleads that because the plaintiff had withdrawn his consent to a thoracotomy, the defendant committed assault and battery on the plaintiff. The case was not run as pleaded. It was run on the basis that the plaintiff had not consented to the removal of lung tissue. The plaintiff abandoned his claim as it related to an allegation that the defendant performed a thoracotomy.
The defendant's qualifications and experience
The defendant is an experienced cardiothoracic surgeon. His qualifications, experience and expertise were not challenged at trial.
The defendant graduated in 1976. Whilst working in England for three years, he gained his general surgery fellowship in 1977. He gained his fellowship in cardiothoracic surgery in 1982.
The defendant has held and still holds numerous consulting positions in public and private hospitals. His experience is mainly in the area of thoracic surgery in which he has had a long-standing and particular interest.
The defendant practises from privates rooms in The Mount Hospital.
The issues
It is not in dispute that the defendant conducted the surgery with the required skill and care.
The factual issues for determination include:
•What information did the defendant give to the plaintiff at the first consultation?
•Did that information constitute a sufficient explanation of the procedure and warning of the risks of the procedure?
•Given that the plaintiff consented to a thoracoscopy, did that consent cover a biopsy of lung tissue?
•Was the surgery contraindicated? In other words, should the defendant have taken the biopsies of the pleural thickening and the lung tissue?
The relevant legal principles
In the leading case of Rogers v Whittaker (1992) 109 ALR 625 the High Court addressed the duty and standard of care applicable to medical practitioners. The following principles emerge from that case.
"The law imposes on a medical practitioner a duty to exercise reasonable care and skill in the provision of professional advice and treatment. That duty is a 'single comprehensive duty covering all the ways in which a doctor is called upon to exercise his skill and judgment'; it extends to the examination, diagnosis and treatment of the patient and the provision of information in an appropriate case. It is of course necessary to give content to the duty in the given case." [628, citations omitted]
The standard of reasonable care and skill required is that of the ordinary skilled person exercising and professing to have that special skill [628]. (Thus in the present case, the skill of a cardiothoracic surgeon).
The standard is not determined solely or even primarily by reference to the practice followed or supported by a responsible body of opinion in the medical profession. Evidence of acceptable medical practice is a useful guide for the courts but it is for the court to determine what is the appropriate standard of care after giving weight to the paramount consideration that a person is entitled to make his own decisions about his or her life [631].
The factors according to whether a court determines whether a medical practitioner is in breach of the requisite standard of care will vary according to whether it is a case involving diagnosis, treatment or the provision of information or advice [632].
The Court approved of the factors referred to in F v R (1983) 33 SASR 191. These include the nature of the matter to be disclosed; the nature of the treatment; the desires of the patient; and the general surrounding circumstances [632].
The duty to provide information and advice takes its precise content in terms of the nature and detail of the information to be provided, from the needs, concerns and circumstances of the patient. In cases, where, for example, no specific inquiry is made by the patient, the duty is to provide the information that would reasonably be required by a person in the position of the patient [per Gaudron J at 636].
The law should recognise that a doctor has a duty to warn a patient of a material risk inherent in the proposed treatment; a risk is material if, in the circumstances of the particular case, a reasonable person in the patient's position, if warned of the risk, would be likely to attach significance to it or if the medical practitioner is or should reasonably be aware that the particular patient, if warned of the risk, would be likely to attach significance to it [633‑634].
Generally, the duty to disclose extends to information that is relevant to a decision or course of action which, if taken or pursued, entails a risk of the kind that would, in other case, found a duty to warn. The duty to warn extends to real and foreseeable risks do the kind involved in the treatment or procedures proposed [636].
In some situations questions as to the reasonableness of particular precautionary measures are matters of common sense [635 per Gaudron J].
Where there is a duty to inform, it is necessary for a plaintiff to give evidence as to what would or would not have happened if the information in question had been provided: Chappel v Hart (1998) 195 CLR 232 at 239.
However, except in cases of emergency or necessity, all medical treatment is preceded by the patient's choice to undergo it. In legal terms, the patient's consent to the treatment may be valid once he or she is informed in broad terms of the nature of the procedure which is intended (Chatterton v Gerson [1981] QB 432 at p 443).
Causation
The plaintiff must prove both negligence on the part of the defendant and that the loss and injury alleged are causally related to the negligent acts or omissions. Causation must be proved on the balance of probabilities.
In Chappel v Hunt ibid at 244 McHugh J enunciated the test for causation as follows:
"Before the defendant will be held responsible for the plaintiff's injury, the plaintiff must prove that the defendant's conduct materially contributed to the plaintiff suffering that injury. In the absence of a statute or undertaking to the contrary, therefore, it would seem logical to hold a person causally liable for a wrongful act or omission only when it increases the risk of injury to another person. If a wrongful act or omission results in an increased risk of injury to the plaintiff and that risk eventuates, the defendant's conduct has materially contributed to the injury that the plaintiff suffers whether or not other factors also contributed to that injury occurring." [citations omitted]
This was approved by in Naxakis v Western General Hospital (1997) 197 CLR 269 at 279 and 312.
As so often has been held by the courts, causation in law is a matter of common sense and not in accordance with any philosophical or scientific theory of causation or any modification or adaptation of such a theory for legal purposes: March v E & MH Stramare Pty Ltd (1991) 171 CLR 506.
Once a plaintiff proves that a defendant has breached a duty of care that that the breach has been followed by injury within the area of foreseeable risk, a prima facie causal connection will be established and the defendant will bear the evidential burden of showing that the breach had no effect. However, once there is evidence sufficient to displace the plaintiff's prima facie case, it remains for the plaintiff upon the whole of the evidence to satisfy the tribunal of fact of the extent of the injury caused by the defendant's negligence: Purkess v Crittenden (1965) 114 CLR 164 at 168.
Assault and battery
Although the plaintiff has pleaded "assault and battery", as I understand the claim, it relates to the tort of battery. This is an intentional and direct interference to the body of another, in the absence of consent: see generally Fleming, "The Law of Torts" 9th ed (1998) pp 29‑31.
The consent necessary to negative the offence of battery is satisfied by the patient being advised in broad terms or the nature of the procedure to be performed; Rogers v Whitaker (1992) 109 ALR 625 at 633 approving Chatterton v Gerson [1981] QB 432.
Consultation with Dr Richard Tarala
The plaintiff referred himself to Dr Tarala on 29 January 2004. Dr Tarala is a respiratory physician. Dr Tarala took a history from him, did a physical examination and reviewed the radiology.
Dr Tarala's opinion was that the pleural thickening was probably benign. Dr Tarala's recommendation was to wait for three to six months and then re‑scan the area.
The plaintiff asked whether a biopsy might be appropriate.
Dr Tarala advised him that he did not think it was a good idea because of the risk of needle track seeding that could be troublesome. He said:
"If you're going to do anything, you'd be better off having a thoracoscopy because that can avoid that." (T 21)
The plaintiff explained that needle track seeding could occur when a core needle biopsy is performed. The needle is inserted into the plaque inside the pleural space, predominantly the outside layer and cells adhere to the outside of the needle. As the needle is pulled back the cells implant in the track of the needle. The cells subsequently grow and a nodule of mesothelioma grows through the track. The plaintiff said he believed the incidence of that was about 5 per cent.
In any event, the plaintiff then accepted Dr Tarala's advice.
Dr Tarala's evidence
Dr Tarala testified that when he saw the plaintiff on 29 January 2004, the plaintiff was concerned that he might have mesothelioma, an asbestos related malignancy. He said that he and the plaintiff had quite an extensive discussion. He examined the plaintiff and reviewed the x‑ray and CT scan.
He said he considered that the probability of the plaintiff having mesothelioma was low. He said that his impression was that at the end of the consultation they would talk again and have another x-ray in six months.
Dr Tarala said that it is his practice to discuss the [treatment] options with the patient. He had no specific recollection of doing so with the plaintiff but it is what he would have done. Indeed, the plaintiff's evidence confirms that the option of a biopsy was discussed but counselled against.
Dr Tarala said that he had no specific recollection of discussing biopsy procedures but said they would have been discussed in accordance with his usual practice.
Dr Tarala said that he discussed a number of biopsy options with the plaintiff. One option is a core needle biopsy. This can produce a false negative. He said if you want to be sure about the results "you remove all of the area in question".
Dr Tarala had no specific recollection of discussing "seeding" with the plaintiff but said it may have been part of the discussion.
He said it is his practice to offer advice but to let the patients have autonomy and make their own decisions about treatment.
After the first consultation with Dr Tarala
The plaintiff testified that after the consultation with Dr Tarala, he was unable to settle. He went over in his mind the possible causes of the pain. He wondered why Dr Tarala advised against a biopsy if the pleural thickening was benign. He wondered whether Dr Tarala actually thought the condition was malignant.
The plaintiff testified that he telephoned Dr Tarala either on 3 or 4 February 2004 and told him that he was very unsettled about the situation and suggested that the best thing would be to do a biopsy. Dr Tarala repeated his advice that he did not think it was the right thing to do. He told the plaintiff that it would be better for him to come and see him and talk about the matter.
The plaintiff testified the next thing that happened was that he received notice of an appointment with the defendant. He had not asked to see the defendant and this appointment was arranged without his knowledge or consent. This served to exacerbate his anxiety even more. He denied that Dr Tarala recommended the defendant to him after mentioning the names of a few surgeons.
Dr Tarala testified that after his consultation with the plaintiff, he dictated a letter to the plaintiff but did not send it. This was because the plaintiff telephoned him on either 3 or 4 February 2004. Dr Tarala was in his car at the time. He said the plaintiff was very concerned and had become very anxious. The plaintiff mentioned that there had been a complication in a colonoscopy procedure he had performed.
The plaintiff said he really wanted the issue of whether or not the opacity was malignant.
Dr Tarala said that he told that plaintiff that he would "arrange for someone to establish that and do a biopsy".
He had no specific recollection of canvassing any names, but said that he would have done so because the plaintiff is not only a medical practitioner but also a surgeon.
Referral to the defendant
Dr Tarala referred the plaintiff to the defendant.
The letter of referral dated 4 February 2004 is consistent with Dr Tarala's evidence concerning the examination of the plaintiff and his opinion.
In that letter Dr Tarala wrote:
"The most probable explanation for his symptoms related to use of recently purchased exercise machine, which concentrates on the pectorals and latissimi; coupled with the wood planing which he was doing as part of renovations. The pain on focal pressure of the axilla is in keeping with this."
Dr Tarala's view expressed in the letter was that the radiological changes were clearly old as indicated by the partial calcification and a slight but definite asymmetry of the plaintiff's thorax was in keeping with a small haemothorax related to the karate injury.
In his letter to the defendant, Dr Tarala reiterated his initial advice to the plaintiff. He informed the defendant that the plaintiff was "concerned about mesothelioma; but was of the view that earlier diagnosis was not indicated as it would not change his management". Dr Tarala referred to the telephone call with the plaintiff and reported to the defendant that the plaintiff was then very concerned. In his letter he said:
"A lack of a firm decision is weighing on his mind and he would like a definite diagnosis."
In his letter Dr Tarala referred the plaintiff to the defendant "with a view to undertaking biopsy".
Dr Tarala testified that the plaintiff wanted to be sure that the condition was not malignant.
Under cross-examination Dr Tarala said he had no recollection of the plaintiff's account that there was an agreement to have a discussion before referring him to a specialist.
Dr Tarala testified that there are no circumstances in which he would refer a patient to another specialist without the patient's knowledge or consent and it would be inappropriate to do so.
Consultation with the defendant: the plaintiff's evidence
The plaintiff testified that he saw the defendant on 6 February 2004 in his rooms at The Mount Hospital. He said the consultation lasted about 15 minutes.
The plaintiff testified that he went to see the defendant in order to obtain an opinion as to whether a biopsy was necessary. He denied that he had already made up his mind to undergo a biopsy.
He took the x-ray and CT scan with him.
He said that the defendant was running late. The plaintiff handed the defendant a copy of his patient history which he had signed and dated 5 February 2004 ("synopsis") and which the defendant read.
He said the defendant asked him if he had had any weight loss to which the plaintiff replied he had not.
The plaintiff said the defendant looked at the scans and pointed out some streaky bands in the lung and said "I've rarely if ever seen a calcified mesothelioma but it's your call whether you want the biopsy or not".
The plaintiff understood that if an [area] is calcified it usually means a process which is chronic and benign. He said that calcification is common in pleural plaques of long standing.
The plaintiff's understanding of thoracoscopy
The plaintiff said that the technical details of a biopsy and the procedure connected with a thoracoscopy were not discussed with him. He said he knew what a thoracoscopy is. He said he had a clear understanding from Dr Tarala's discussion that pieces of tissue would be withdrawn through the ports to avoid seeding.
The plaintiff testified that a thoracoscopy is a medical procedure which can be performed by a respiratory physician. More usually a surgeon in an operating theatre undertakes it with the patient anaesthetised.
He said that two or three small incisions are made in the chest wall sufficient to insert ports.
According to the plaintiff, the ports have a diameter of 5 millimetres with one having a diameter of 10 or 12 millimetres.
The thoracoscopy involves only removing tissue through those ports.
Sometimes scissors are introduced through the incision to remove the tissue.
The plaintiff agreed that a biopsy is the removal of tissue from the body and is not limited to a "punch" biopsy or core needle biopsy.
The plaintiff said there was no discussion at all about how much tissue would be removed and no discussion about the means by which it would be removed. He said all the defendant said to him was "It's your call whether you want a biopsy".
The plaintiff said, "I guess we'd better do a biopsy" and he testified that the defendant said, "I think that would have been what I'd have done too".
The plaintiff said that that confirmed what he was thinking, namely that "there's something going on here".
The plaintiff said he did not believe it was necessary for the defendant to explain the risks of anaesthetic to him as that was the role of the anaesthetist. He considered the complications of a simple thoracoscopy and punch biopsy are extremely remote. He also said the complications of a simple biopsy are so remote it is almost unnecessary to explain the risks to someone.
The plaintiff agreed in cross-examination that there was a discussion about the risks of a thoracoscopy procedure but said that he initiated the discussion. Notwithstanding that, the plaintiff asserts that the defendant did not explain the risks to him.
The plaintiff denied that he was insistent that the operation took place. He said that the defendant never told him that a biopsy was not necessary.
He said there was no discussion as to the alternatives to the procedure. There was no discussion on the pros and cons of having it. The defendant did not provide any written material explaining the procedure and did not explain the risks of the procedure.
Consultation with the defendant: the defendant's evidence
The defendant said he saw the plaintiff for two reasons. First, Dr Tarala had requested an urgent appointment; and secondly, the plaintiff was a professional colleague.
The defendant had read Dr Tarala's letter of referral; he read the plaintiff's synopsis; and he reviewed the x-ray and the CT scan. He conceded that he did not examine the plaintiff. (I note that both the plaintiff and the defendant in their pleadings claimed he did but each resiled on their respective claims in evidence).
The defendant said that he assessed the plaintiff as being extremely anxious, bordering on what he described as "paranoia", a term he used in the general rather than the psychiatric sense.
He told the plaintiff that the pleural thickening was almost certainly benign. He said he thought it was entirely reasonable at that stage for the management of the plaintiff to do nothing further than ongoing surveillance which would include repeat imaging in around six months.
The defendant said he canvassed thoracoscopy as an alternative if the plaintiff wanted a definite answer.
It was then that the plaintiff mentioned that he had perforated a patient's colon as he was so concerned about having a malignancy and that possibility was impacting on his ability to function as a general surgeon.
The defendant said the plaintiff told him that he could not wait three to six months and could not carry on with it hanging over his head and that he had to know what was going on inside his chest.
The defendant told him that the only way to be certain was to perform a biopsy. He said that the plaintiff not only wanted that but also was insistent on it despite the defendant's "strong view" that the condition was benign.
The defendant said there was no discussion about the means the biopsy would be obtained other than thoracoscopy. The defendant did not raise the issue of a needle or punch biopsy because he presumed that the plaintiff had discussed that with his respiratory physician and in any event, he did not perform needle biopsies.
Discussion of risks
The defendant said that he discussed the risks with the plaintiff. He testified that the risks included:
"Bleeding, prolonged air leak from either biopsying or traumatising the lung, infection and the need or the possibility of requiring an open procedure. The reason that I can be fairly certain about that is two‑fold. The first is, as I have indicated, it is my standard practice to list those complications for every patient undergoing a thoracoscopy and as is seen from the signed consent form I have specifically mentioned 'plus or minus thoracotomy'. That indicates that I clearly discussed that complication or that potential complication with Dr Kent and it's inconceivable that I would have just discussed one complication and not the others which I discuss on a routine basis, almost every working day."
In his report to Dr Tarala dated 4 February 2004, which he dictated as soon as the plaintiff walked out the door, the defendant stated that:
"We discussed at length the pros and cons of proceeding to thoracoscopy or adopting a wait and see policy and he is very keen to obtain a definite answer."
He testified that the pros and cons referred to the "… risks and benefits. What would be the risks of waiting and undergoing surveillance imaging in 3 to 6 months time? What would be the benefits of doing that? What would be the risks of having a thoracoscopy and biopsy and what would be the benefits of a thoracoscopy and biopsy".
Under cross‑examination, the defendant testified that although he had no recollection of telling the plaintiff that neuralgia was a risk of thoracoscopy, it is highly likely that he did so because it was his usual practice to mention this as neuralgia is a not uncommon complication of thoracoscopy.
The defendant said at the end of the consultation, the plaintiff had consented to a thoracoscopy and/or thoracotomy, if required, and a biopsy, the purpose of which was to exclude, as far as possible, the likelihood of a malignancy.
Patient consent form
The plaintiff signed the Mount Hospital Request/Consent Form for Surgical Operation Procedure on 6 February 2004, although the document is dated 5 February 2004.
The plaintiff initially consented to "[left] thoracoscopy +/- thoracotomy". The defendant signed the consent form, certifying that he had informed the plaintiff "of the nature, likely results, and material risks of the recommended operation/procedure and/or treatment".
The plaintiff said that, almost as an aside, the defendant said he had better add in the thoracotomy just in case "everything is adhesed".
Part B of the consent form relevantly contains the following:
"The doctor … and I have discussed my … present condition and the various alternative ways in which it might be treated.
The doctor has told me that:
•The administration of anaesthetic, medicines, and/or blood transfusion may be needed in association with the operation/procedure and/or treatment and these carry some risks.
•Additional procedures or treatment may be necessary if the doctor finds something unexpected and I agree to these additional operations/procedures and/or treatments being carried out if required as long as they related to the reason for the primary procedure set out …
•Even though the operation/procedure and/or treatment is carried out with all due professional care, the operation/procedure and/or treatment may not give the expected result.
•The operation/procedure and/or treatment carries some risks and that complications may occur.
I understand the nature of the procedure/treatment and that undergoing the operation/procedure and/or treatment carries risks.
I have been advised of the material risks associated with this operation/procedure and/or treatment.
I have had the opportunity to ask questions about the operation/procedure and/or treatment and I am satisfied with the answers and information I have received.
… I request, understand and consent to the operation/procedure and/or treatment as outlined above …"
The plaintiff could not be sure that he read the consent form before signing it. For reasons outlined below I find that it is highly unlikely that he did not read it before he signed it.
Admission to hospital
The plaintiff was admitted to The Mount Hospital on the evening of Monday, 9 February 2004.
He had a discussion with two of the nursing sisters.
The plaintiff said he kept telling the sisters that he thought the [pleural thickening] was benign and that he did not think it was cancer.
He said there was some talk about removal of part of his lung. He said he told them he would be "horrified" at the thought of losing part of his lung.
Another nursing sister started to talk about a thoracotomy because that is what she thought the procedure would be. The plaintiff said that he told her he was there for a thoracoscopy.
He telephoned his brother, who is an anaesthetist, and discussed his concerns. On his brother's advice, he decided only to have a thoracoscopy.
The defendant came in that evening. The plaintiff said he told the defendant he was concerned because of his discussion with the nurses who were talking about thoracotomies and total pneumonectomies and this was scaring him and he did not think it was appropriate. He said he also told the defendant that he would be "horrified" at the thought of losing part of his lung.
Pre-surgery period in hospital
The plaintiff testified that on the morning of 10 February 2004 he spoke to the defendant while he was in the surgical holding bay.
He told the defendant that he did not want a thoracotomy and that if the defendant could not perform the biopsy through thoracoscopy he was not to do the biopsy at all.
The defendant had no recollection of seeing the plaintiff in the hospital on the day of his admission but thought that it was highly likely that he did, as his practice is to visit patients pre-operatively and in this case the plaintiff was a colleague.
The defendant testified that he has no recollection whatsoever of the plaintiff telling him that he would be horrified at the thought of losing part of his lung. The defendant does not recall the plaintiff telling him at the time that he was withdrawing his consent to a thoracotomy. However, he was aware that consent had been withdrawn before the surgery.
A critical issue is whether the plaintiff told the defendant that he would be horrified at the thought of losing part of his lung. The plaintiff testified that he thought a thoracotomy involved the removal of lung tissue. However, there is no evidence that he conveyed this misapprehension to the defendant. It would appear to be a misunderstanding of the procedure.
Even if the plaintiff had told the defendant that he would be horrified at losing part of his lung, in my view, that is not an unequivocal instruction to the surgeon not to remove any lung tissue.
However, I am far from satisfied that the plaintiff did say that to the defendant.
The surgery: defendant's evidence
The defendant testified that when he performed the thoracoscopy, he made three incisions.
The defendant observed an elevated abnormal tissue on the parietal pleura with a portion of the upper lobe of the lung densely adherent to it. In fact, part of the lung was incorporated with the abnormal tissue. As far as the defendant was able to see the remainder of lung looked normal. There was no effusion and no other abnormality on the inside of the chest wall. There were no other plaques, areas of abnormality or evidence of any diffuse disease at all.
On observation, the defendant felt that what he saw was more in keeping with a benign process. However he was a little bit concerned at the dense adherence of the lung over the abnormal tissue. He said that mesothelioma can present in such a fashion with a localised area of tumour invading the underlying lungs.
Notwithstanding this he still felt that the condition was more than likely benign. However he was "surprised" and "just a little more concerned" than "he was prior to the commencement of the procedure" to see the dense adherence of the lung to the abnormality. The defendant testified that he used a diathermy, which is an electro-cautery instrument, to separate the tissue. He was then able to fully assess the pathology. He found that there was an area of abnormality on the parietal chest wall, the size of between a 20 and 50 cent piece, with some puckering or slight tethering of the parietal pleura adjacent to it. He said that the abnormality itself looked relatively smooth and homogenous but there was some pleural tethering around it and that was a little more irregular.
Under those circumstances and given that the reason for the procedure was to be as definite in the diagnosis as possible, the defendant considered that it was "absolutely the appropriate thing to remove the entire abnormality".
He said it was an easy procedure, caused no problems or difficulties and was very straightforward.
He then considered the abnormal piece of lung which was involved with the pathological process. He said that he had no way of absolutely knowing that this was benign without removing it and submitting it for histological examination. Accordingly, he did so. Again, it was a simple procedure which required the removal of a very small segment of lung.
The defendant testified that it was not unusual to remove the area of abnormal pleural tissue and a portion of the lung tissue through a thoracoscopy. The defendant said he did not give any consideration to performing a punch biopsy. The only way to determine whether the abnormal tissue was benign was to remove it. He said if he were to take a piece or a fragment, that would be akin to any other form of core biopsy or needle biopsy and would present the risk for sampling error. In the circumstances, given the reasons for the thoracoscopy, this would have been "unacceptable".
The defendant testified that the procedure was entirely routine. There was minimal to no bleeding or any air leak from the lung.
The defendant dictated an operation report wherein he described the procedure and noted that:
"There was found to be adherence to the anterior aspect of the left upper lobe to the chest wall over approximately 4-6 inches. Adhesions were chronic and surrounded an area quite grossly thickened pleura. The underlying lung itself appeared normal."
By the term "underlying lung" the defendant said he meant the remainder of the lung. He was cross-examined on this issue but I accept his evidence as to his interpretation of the phrase he used, as he was the person who performed the surgery and it was his report.
The defendant also reported to Dr Tarala by letter dated 11 February 2004. He stated that macroscopically there did not appear to be any malignancy but that he would need to wait for the final biopsy reports which he would forward to Dr Tarala.
Under cross‑examination, the defendant was referred to the report of a chest x-ray performed on 10 February 2004 after the surgery. The report stated "Some thickening of the parietal pleura in the lateral left mid to lower zones". The plaintiff relies on that finding as contradicting the defendant’s evidence that he removed all of the pleural thickening.
However, the defendant testified that "this sort of report is entirely in keeping with the normal changes one sees ... when one removes a section of pleura or abnormal tissue, there is always an immediate reaction of some swelling, some oedema and occasionally a little bit of bleeding in the site. And it shows up on an x‑ray exactly as indicated in that report". He also said that as he performed the biopsy, he is the one who knows what he did. In other words, he denied that he did not remove the entire pleural thickening on biopsy and testified that the x-ray report is consistent with changes which a surgeon normally sees when a section of abnormal tissue is removed.
A report of a chest x-ray done on 4 March 2004 reported:
"There is moderate pleural based thickening along the lateral chest wall blunting the lateral and posterocostophrenic recesses, and there is evidence of an associated small pleural effusion on the decubitus radiograph left side down."
The defendant testified that these findings are consistent with what he would expect after the biopsy he performed. He went on to say that the blunting of the costophrenic recesses, indicating a thickening or some fluid in that area is "not totally related to….the area of interest", that is, the area on which he operated.
Histology report
The histology report confirmed that there was "no atypia or malignancy".
It would seem that three tissue samples were submitted for histology. These included:
"(1)Pleural biopsy: a piece of rubbery plaque like tissue, grey in colour, 60 x 20 mm. Thickness up to 7 mm.
(2)Pleura: rubbery, pale to grey coloured plaque like tissue, 35 x 22 mm. Thickness 7 mm.
(3)Lung: a wedge of lung tissue measuring 45 x 18 x 10 mm … the pleural surface appears smooth and regular."
The defendant testified that the most likely explanation for the two pieces of pleural tissue is that he divided the pleural tissue in some way at the time of surgery. He said he often does that with tumours for a number of reasons, including to ensure that he has the [whole] tissue and out of curiosity to examine the inside of the tissue.
Post-surgery consultation
The defendant testified that on 12 February 2004, the plaintiff was so well after surgery that he was discharged two days post surgery. He had made a rapid recovery and he could see no reason for keeping the plaintiff in hospital any longer.
The defendant said that he tried to obtain the histological report on Friday, 13 February 2004 prior to leaving the metropolitan area for the weekend. However it was not then available. On his return on Monday, 16 February 2004 he did not see the report and he could only speculate as to why he did not. However, he said that when he did receive the report, he immediately contacted the plaintiff but by then the plaintiff had received the results himself. In my view nothing turns on the alleged delay in accessing the histological report.
He did not have any further contact with the plaintiff after his discharge from hospital either by letter, email or telephone. He said his normal practice would be to request a patient to make an appointment with him in a few weeks post-discharge but the plaintiff did not do this.
The after effects of the surgery
The plaintiff testified that after leaving the hospital he was taking analgesics for five or six days.
Neuralgia
He said when he stopped using the analgesics, he developed neuralgic pain in his left chest which was the most severe pain he had ever experienced.
He said the neuralgia was very bad for a couple of months and has persisted to the present moment especially when he is under stress. He said the neuralgia comes in "bouts" and said it was particularly severe at the time of the trial. However, the pain is always there.
He said that he has neuralgic pain at the front which sometimes feels like a cramp and sometimes feels like burning. Sometimes when he is touched in the area he has to pull away and the pain sometimes wakes him up at night.
The plaintiff said he also has pain in the incision at the back which is worse than the neuralgic pain but "fortunately quite infrequent".
Shortness of breath
He said a friend came over for a walk after the surgery but he was unable to walk 50 metres because of shortness of breath.
He then developed "a sense of constriction", as if he were "breathing through a veil" and a cough.
He said the sense of constriction in his throat and the cough resolved in February or March 2008.
Hernia
The plaintiff testified that he also a left inguinal hernia and a paraumbilical hernia through the repeated coughing.
He said that he has consulted a colleague about the hernias. The inguinal hernia is under observation. However, the umbilical hernia is "painful and definitely needs to be treated". He said that he was told that he would have to be away from his work for two to six weeks.
Dr Peter Smith, a general and endocrine surgeon, provided a report to the plaintiff's solicitors dated 24 November 2008.
He recommended operative repair for the umbilical hernia which he (somewhat vaguely) attributes to the reported chronic cough which the plaintiff claims to have developed "after surgery". He states that the left inguinal hernia was not clinically apparent.
The plaintiff who claimed to be an expert "on hernias" testified that the left inguinal hernia is under observation and, in effect, it is not known whether it needs to be repaired.
Scarring and chronic pain around the incision site
The plaintiff claims that he developed scarring around the incisions. The defendant testified that all incisions develop a scar.
The plaintiff claims that he developed chronic pain in the site of the incision, as if he had been kicked. The defendant testified that he has never "seen" chronic pain actually in the wound itself or in the scar tissue of a thorascopic procedure he has performed.
In any event, there is no evidence that the scarring was caused by any negligent act of the defendant. There is no evidence that, if the plaintiff did develop chronic pain around the incision site, that it was caused by any negligent act of the defendant.
Limited activities
The plaintiff said that the pain has limited his activities. Prior to the surgery he testified he was very fit and engaged in a number of physical activities.
The plaintiff said that he can now cycle but is not confident in the kayak. He is unable to run as he damaged his knee when he started running after the surgery. He said that he cannot do anything that involves twisting because he knows the neuralgia will come. He said:
"I won't prune the tree anymore because God forbid that I get the neuralgia up there and I'm going to fall over. I just have to be sensible about what I do."
The plaintiff said that he became disillusioned with Dr Tarala so he consulted Dr Prichard. He was prescribed Ventolin which did not make any difference and a drug called Gabapentin which relieves neuralgic pain.
Past loss of income
He said that he has had to limit the number of procedures he does because of the pain.
He said his career had just "hit top form" in his age group but he cannot work as hard per surgical list. There is an average of $400 reduction for each list.
The expert evidence: witnesses called by the plaintiff
Dr Michael Geoffrey Prichard
Dr Prichard has been a medical practitioner for 32 years and a specialist in respiratory medicine for 26 years. The plaintiff self-referred to Dr Prichard in March 2004 for the purpose of reviewing his "pleural disorder". Dr Prichard reviewed the chest x-ray and CT scan, performed spirometry and examined the plaintiff.
The spirometry revealed, "mild ventilatory defect" representing "the combined effects of benign diffuse left pleural thickening and recent surgery with a small residual haemothorax and the effects of chest pain or discomfort".
Examination revealed "evidence of reduced breath sounds and dullness to percussion over the left haemothorax in the mid zone but no pleural rub. There were three reasonably recent thoracic scars, each about 30 to 50 mm in length by estimate".
Dr Prichard testified that neuralgic pain usually resolves over six to 12 months. He said neuralgic pain is a fairly common result with thorascopic procedures.
He said that shortness of breath can follow thoracic procedures because of pain restriction.
He said that cough is relatively uncommon but depends to a certain extent on how much of the lung is involved in the pleural process. Distortion of the pleural membrane is one of the things that can trigger coughing.
When he was examined on 5 July 2004, the plaintiff reported that the pain had reduced; there was less restriction to deep breathing; and exercise tolerance had improved.
In his report dated 5 July 2004, Dr Prichard stated:
"Recently there have been other respiratory problems, almost certainly not related to the pleural disease or surgery."
He said that the respiratory problems were the development of a non‑productive cough associated with tracheal irritation, occasional wheeze and nasal symptoms. These were of recent onset and raised the possibility of asthma. He reported that he anticipated "full and complete recovery from surgery in due course".
Dr Prichard reviewed the plaintiff again on 9 June 2005, again after the plaintiff referred himself.
In his reports prior to giving evidence, Dr Prichard was of the view that the respiratory symptoms were not related to the surgery.
However, his view shifted during the course of his evidence when he said that given that the cough started after the surgery, then in the absence of any other viable explanation, it would be reasonable to assume that the surgery caused the cough.
Necessity for biopsy
Dr Prichard made a diagnosis of "benign diffuse pleural thickening as a complication of past asbestos exposure". In those circumstances he said his recommendation would have been to observe the condition and not to perform a biopsy at all.
In his report, Dr Prichard stated that if there was a change in radiographic appearances of the pleural thickening he would favour a closed pleural biopsy using an Abram's pleural biopsy needle. However, in evidence, Dr Prichard said that he would proceed to a closed core biopsy without using an Abram's needle. He said that he used the term Abram's needle in his reports as a generic term. He said that the term Abram's needle was, in effect, a reference to a core needle biopsy.
Dr Prichard's view was that he would proceed to thorascopic pleural biopsy only if there were clinical features to suggest malignant mesothelioma.
However, he accepted that the only way a physician or surgeon can know for certain if an area of pleural thickening shown on radiology is benign is to perform a biopsy. He conceded that with the use of a core needle, there is a risk that the amount of tissue extracted from an area of abnormal tissue might show a negative result for malignancy when other parts of the abnormal tissue may in fact contain a malignancy.
Dr Prichard agreed that the only way you would be able to reach 100 per cent certainty in diagnosis is to perform a biopsy. He agreed that there is a risk of a false negative in performing a core biopsy.
He further agreed that if during a thorascopic biopsy the surgeon removed the abnormal tissue in its entirety, with a margin, then the risk of sampling error is reduced if not eliminated. Dr Prichard agreed in re‑examination that the taking of multiple samples by core needle would be a way of reducing the risk of sampling error.
Observations on Dr Prichard's evidence
Given that Dr Prichard clearly knew the difference between an Abram's needle biopsy and a CT guided core needle biopsy, I have some doubt about the reliability of his claim that he was using the term "Abram's needle" as a generic term. This is particularly so given that up until the date of trial, the plaintiff claimed that an Abram's needle biopsy was the preferred way of proceeding to biopsy. It is reasonable to infer that this was on the basis of Dr Prichard's reports.
Dr Prichard changed his view in relation to the respiratory symptoms. His reports express the clear opinion that the respiratory symptoms were not related to the surgery. However, in his oral evidence, of which the defendant had no notice, he changed his view and said that given the temporal association between the surgery and the respiratory symptoms, and in the absence of any other explanation, there was a causal link between them and the surgery.
Dr Prichard said that the pleural thickening was "diffuse". All other medical views were that it was localised.
Dr Prichard conceded that in making decisions during surgery, the surgeon is best placed to make judgments about the technicalities of the surgery than is a respiratory physician.
These factors cause me to lack confidence in the opinions expressed by Dr Prichard. Insofar as Dr Prichard's opinions differ from those of the defendant and Professor McCaughan as to the necessity and appropriateness of the procedure performed by the defendant, I prefer their evidence.
Evidence of Dr Roger Allen
Dr Allen is a qualified respiratory physician practising in the area of thoracic and sleeps disorders. He has been a medical practitioner since 1975. He completed his training as a thoracic physician in 1982.
In response to a letter requesting his opinion from the plaintiff's solicitors dated 10 December 2007, Dr Allen provided his report dated 27 January 2008.
In summary, Dr Allen's opinions are as follows:
(1)The radiological material reveals "an area of pleural thickening in the anterior chest wall which is consistent with a pleural plaque, which contains some areas of calcification and some parenchymal bands radiating from the surface of the pleural thickening/plaque". He said that these are highly typical of benign asbestos pleural disease.
Contrary to Dr Prichard's view, Dr Allen agreed with the defendant and Professor McCaughan that these areas do not constitute "diffuse pleural thickening" as it is not large enough to encompass that diagnosis.
(2)Pleural plaque with parenchymal bands is so typical of a benign process caused by exposure to asbestos that his policy would be to observe the pleural plaque by repeated CT scanning in three months or so;
(3)If biopsy was required, he would favour a CT guided core biopsy but only if there was a high suspicion of malignancy;
(4)He would not contemplate such a biopsy if the pleural thickening appeared benign as it did in this case.
The effect of Dr Allen's evidence is that he would not have agreed to biopsy the area of pleural thickening even if the plaintiff had been told of the likelihood of the thickening being benign and had been advised of the advantages and disadvantages of the monitoring approach as opposed to proceeding to thoracoscopy and biopsy.
Dr Allen did not consider the risk of missing a focus of malignancy when using a core needle biopsy was relevant. Significantly, Dr Allen's opinion was on the basis that a core needle biopsy would be performed if there was a high suspicion of malignancy. His opinion is not based on that risk occurring if the pleural thickening appeared benign as it did in the plaintiff's case.
Dr Allen was very much in favour of reassuring a patient in the plaintiff's position and referring him for a second opinion in order to placate his anxiety. In my view, given the plaintiff's concern and desire for a definite diagnosis, it is highly unlikely that he would have agreed to yet another opinion.
Expert evidence: witness called by the defendant
Professor Brian McCaughan
Professor McCaughan is a cardiothoracic surgeon. Six years ago he stopped doing cardiac surgery and now concentrates on thoracic surgery.
He completed his undergraduate medical degree in 1975 and obtained his fellowship in 1982. I refer to, without detailing, Professor McCaughan's extremely extensive and impressive curriculum vitae. Apart from the defendant, he is the only expert witness who practises as a thoracic surgeon and the only witness who specialises in thoracic surgery. His qualifications and experience far exceed those of the defendant and the experts called by the plaintiff.
Professor McCaughan read the defendant's evidence concerning his diagnosis and consultations with the plaintiff. On the assumption that that evidence is accurate, Professor McCaughan's opinion is that it was reasonable for the defendant to agree to operate on the plaintiff. He stated in his report dated 15 June 2007 that it is not an uncommon situation for patients to insist on surgery so that they can set their mind at rest and get on with their lives.
Professor McCaughan testified that there are three options open given the diagnosis of the plaintiff's condition. One is to do nothing which he would find unacceptable. The second is to have periodic surveillance with appropriate radiology. The third is to proceed to a definite diagnosis. In some cases this can be done other than by surgery. Professor McCaughan testified:
"I do not know of anyone else in this circumstance, given this constellation of the patient involved, the x-ray appearances and what was requested, and that was an accurate tissue diagnosis, I do not know of any other appropriate response done by any of my colleagues other than a thoracoscopy, an examination of the haemothoracic cavity." (T 243)
Professor McCaughan said that there is no point in performing a biopsy in pleural plaques because mesothelioma does not occur in pleural plaques. It is necessary to get tissue from between the pleural plaques to be able to tell patients that they did not have mesothelioma. A core needle biopsy may be appropriate if the doctor is dealing with a malignancy or lung cancer but it will not provide a definite diagnosis of mesothelioma.
Professor McCaughan testified that a needle core biopsy under CT control can in no way give a surgeon any confidence in telling the patient that he or she does not have a malignant mesothelioma and would offer no reassurance to the patient. The core biopsy will reveal tissue which may or may not be representative.
The only way to provide a definite diagnosis to the plaintiff and confirm that he did not have malignant mesothelioma was by a thorough inspection of the pleural space and biopsies of multiple areas.
Professor McCaughan explained his opinion as follows:
"…. The element is, is to whether the pleura around the pleural plaque ‑ the tissue away from the clearly benign component ‑ is positive or not … I use CT‑controlled needle biopsies for mass lesions in which you are establishing a precise tissue diagnosis. If a negative needle biopsy is done of a lung mass, or a pleural mass, it does not mean it is benign. It means it is negative for malignant cells. It does not make an accurate diagnosis, and that's why in this patient, in this circumstance, with these x‑rays, the only course of action available in a meaningful way, to provide the information desired by the patient that he did not have malignant mesothelioma, was a thorough inspection of the pleural space and biopsies of multiple areas."
In terms of the necessity of performing the biopsy as done by the defendant, Professor McCaughan was adamant that given the diagnosis that it was most probably benign, the only possible way of giving a definite diagnosis to that effect was by biopsy.
Neuralgia
Professor McCaughan testified that neuralgia is a post-operative consequence of thoracoscopy or thoracotomy. The patients will have pain related to stretching or pressure on the intercostal nerve.
He testified that the pain is less intense with thoracoscopy. He said that [an unspecified number of] patients have intercostal neuralgia that can last for many years and who may need referral to an interdisciplinary pain service.
Respiratory symptoms: shortness of breath, wheezing and coughing
Professor McCaughan said that it would be most unusual for the respiratory problem of tracheal irritation, occasional wheeze and nasal symptoms occurring around five months after the surgery to be related to the surgery. He sees tracheal irritation and the symptoms on the first post‑operative visits due to the tracheal tube inserted during the operation and he could not recall patient developing those symptoms five months after surgery.
He said almost all patients he sees at his six week follow‑up have "some story of persistent cough". This is in keeping with having irritation of the pleura from the surgery.
Shortness of breath can result from removal of a "significant amount of lung" or the patients having to undergo reconditioning of their diaphragm.
Professor McCaughan was of the view that if respiratory problems such as non‑productive cough, tracheal irritation and occasional wheeze occurred some five months after surgery, it would be unusual if they related to the surgery. He would not expect those symptoms to develop four to six months after surgery.
Tracheal irritation from the insertion of a large end tracheal tube and wheeze and nasal symptoms from the anaesthetic tube inserted in the nose are common immediately after surgery. But he said it would be "most unusual" for these symptoms to develop four to six months after surgery. He said he cannot remember seeing a patient develop those symptoms within that time frame.
Conclusion
The weight of the medical evidence establishes:
(1)core needle biopsies are generally performed by respiratory physicians;
(2)in the absence of a biopsy it was not possible for any physician or surgeon to determine with certainty that the plaintiff's pleural abnormality was benign;
(3)a core needle biopsy would not have provided the plaintiff with a definite diagnosis that the pleural thickening was benign;
(4)surgeons are better placed than respiratory physicians to assess the technical aspects of procedures such as thoracoscopies during surgery.
Reliability and credibility of the witnesses to the events
Reliability of the plaintiff as a witness
The plaintiff impressed as a highly-strung, nervous man. Indeed he described himself as a reasonable person who is a "high grade obsessive compulsive". Often he would not answer the questions posed but would embark on an explanation about something else. He would pose rhetorical questions in answer to questions especially in cross‑examination.
He was clearly very anxious about the finding of pleural thickening. He had perforated the colon of a patient under colonoscopy for the first time after his own diagnostic x‑ray. I am convinced on the evidence that he attributed this to the stress and anxiety connected with the pleural thickening.
All of the evidence points to the plaintiff as being extremely concerned about whether he had mesothelioma. This was an all‑consuming fear. I do not criticise the plaintiff for this. The plaintiff also harbours a great sense of grievance as a result of the procedure performed. I get the distinct impression that his sense of being wronged has pre‑occupied him since the surgery was performed.
In my view, the plaintiff's attitude and anxiety are relevant when assessing his reliability as a witness and his reaction to the advice of Dr Tarala and the defendant and to the procedure.
I do not find the plaintiff to be a particularly reliable witness.
I set out some examples from the evidence which illustrate why I am of this view.
The plaintiff testified that Dr Tarala referred him to the defendant without his knowledge and consent. He said he only attended the appointment so as not to be rude to the defendant.
Dr Tarala had a clear memory of discussing the matter after the first consultation with the plaintiff when he telephoned him whilst he was in the car. It was then that the plaintiff mentioned the complication with the colonoscopy. Dr Tarala said he discussed referring the plaintiff to a specialist and would have canvassed names with him given that the plaintiff is a surgeon.
Dr Tarala followed up this conversation with the plaintiff with a letter to the defendant dated 4 February 2004.
Dr Tarala's evidence was not challenged in cross-examination as to the car phone call and the discussions with the plaintiff. I accept his evidence.
I do not accept the plaintiff's account that Dr Tarala referred him to the defendant without his knowledge or consent. If that were the case and if the plaintiff's choice would not have been the defendant in any event, I find it unbelievable that he would have kept the appointment with the defendant and attended the consultation because it would have been rude not to do otherwise. In effect, the plaintiff's evidence is politeness to a colleague took priority over his concern and anxiety and preference for another specialist. If the plaintiff's account were true, the simplest way out of his predicament would have been to contact Dr Tarala and ask for referral to another specialist.
He said that the only question that the defendant asked him at the consultation on 6 February 2004 was whether he had lost weight. He had no recollection of any other question being posed. The defendant's handwritten notes of the consultation are brief. They largely reflect the plaintiff's synopsis. However, the defendant notes "asbestos exposure minimal". The defendant testified he elicited this information from the plaintiff. There is no mention of asbestos exposure in the plaintiff's synopsis, although Dr Tarala mentions it in his letter of referral.
I do not accept that the plaintiff's evidence that the defendant only asked one question of him. The defendant was dealing with a professional colleague who was highly anxious. It is inconceivable in my view that he would only pose one question. It is even more unlikely that the defendant did not discuss the risks of the procedure given that the plaintiff said that he was the one who raised the issue of risk; he was particular in his own practice of obtaining "informed consent" from his patients; and he is a man who avoids risk taking.
The plaintiff testified that when the defendant visited him after the procedure and he asked about the outcome, the defendant said in an aggressive voice that he did not have x-ray eyes. The plaintiff said he was extremely angry at this comment and the tone used. He said it was a "cowardly" thing to say to a man in a "defenceless" position. The defendant could not recall the comment but did not deny it. He denied that he would have used an aggressive, rude or arrogant tone and said that if he made the comment, he would have said it in a jocular tone displaying his somewhat unusual sense of humour. I refer to Professor McCaughan's evidence wherein he used a similar term as follows:
"I always emphasise to the patient that it appears benign but I don't have microscopic eyes and I can never be sure." (my emphasis)
I find that if the comment was made, it is highly unlikely that the defendant would have used an aggressive tone. I mention this seemingly trivial incident because it illustrates the plaintiff's sensitivity and anxious personality. It is also an example of the plaintiff misreading and misinterpreting an innocent comment made by the defendant.
After the operation, the plaintiff made a complaint to the medical board about Dr Edward's conduct. The nature of the complaint and the outcome are unknown. However, he wrote at least two letters to the medical board (in August and December 2004) criticising the defendant as being impaired intellectually, a danger to his patients and bordering on dementia. He testified that he was in pain when he wrote those letters and regrets using the language he did. While I accept that the plaintiff may well have been in pain at the time, the language employed confirms my impression of him as a highly-strung, nervy man, prone to overdramatising events.
His language was often exaggerated. For example, he testified that the defendant had removed his lung without his consent and he corrected himself after being challenged by counsel. He described himself as feeling butchered and violated by the "mutilating surgery". He even said he had looked up the definition of "mutilating".
I find the plaintiff to be prone to exaggeration and having at best an imperfect recollection of conversations with Dr Tarala and the defendant and at worst a selective memory.
Reliability of the defendant and Dr Tarala as witnesses
The defendant impressed as a careful and calm witness. He conceded an imperfect memory on some points; he was prepared to stand corrected on occasions; he did not exaggerate; he was prepared to concede omissions in his explanation to Dr Kent; he conceded that in some respects he could not recall the exact terms of a particular conversation but he could recall the general thrust of it; and he conceded he was not a "huge note taker". However, he impressed as a professional man who understood the fears and anxieties of patients; whose general practice was to explain procedures; and who gave appropriate follow‑up.
Although his note of the consultation on 6 February 2004 was cryptic, his follow up letter to Dr Tarala and his Operation Report contain adequate detail.
The defendant conceded that he did not have a specific recollection of discussing certain matters with the plaintiff. However, he said he would have done so as it was his practice to discuss these matters with patients. It would have been a simple matter to say that he recalled the particular conversation in question. That he conceded he did not reflects positively on his credit. I have no reason to doubt that a surgeon of the defendant's experience and expertise would inevitably discuss certain issues with his patients as a matter of routine. Further, the issue has been at the forefront of his mind since at least August 2004 when the plaintiff complained to the medical board.
The plaintiff's counsel outlined several aspects of the defendant's evidence in his written and oral closing submissions which he submits reflects adversely on the defendant's credit.
I give some examples.
There was a dispute between the plaintiff and the defendant as to the time of day the plaintiff attended his appointment with the defendant. Under cross‑examination when the plaintiff's diary entry was put to him (with the consent of the defendant's counsel), the defendant conceded that the plaintiff may have been correct. It is said that this refutes the defendant's claim that he spent a lot of time with the plaintiff as he conceded that the appointment was in the morning and not the last one of the day. In my view, this does not necessarily follow.
The plaintiff points to documents authored by the defendant such as his report to Dr Tarala and his notes which do not comprehensively outline what the defendant testified the plaintiff said to him and/or what he actually told the plaintiff. However, as I have observed above, the defendant is an admittedly brief note taker.
Further, the plaintiff is critical of the defendant for not elaborating on what he exactly explained to the plaintiff when he wrote to Dr Tarala that he had explained the "pros and cons" to the plaintiff. It is said that that is a term he frequently uses in his letters and is vague and does "not explain or prove" that he carried out his duty. In my view, his report to Dr Tarala contained adequate information about the consultation to the referring respiratory physician and supplemented the notes of his consultation.
The plaintiff submits that there is no mention in the defendant's operation report, in his letter to Dr Tarala or to the plaintiff that he could be absolutely certain of having removed all of the abnormality and that there was no malignancy.
The plaintiff submits that this information would in the circumstances of this plaintiff be advised given his anxiety. As I understand the plaintiff's point, the fact that the defendant did not mention such a significant fact reflects adversely on the defendant's assertion that he did in fact remove all of the pleural thickening. In this regard, the plaintiff also refers to the post‑surgery radiography. I have already dealt with this issue above and accept the defendant's evidence that as far as he was concerned, he had removed the entire abnormality.
I have not mentioned all points raised by the plaintiff which he claims reflects adversely on the defendant's credit. Overall, having considered them in some detail and by reference to the transcript, I am not dissuaded from my view that the defendant was an honest witness. His memory was admittedly deficient as to certain details but given the lapse of time that is not surprising.
Dr Tarala similarly was a careful witness. Dr Tarala was in the same position as the defendant when questioned about certain aspects of his conversations with the plaintiff. He said he would have discussed certain matters (outlined above) as it was his usual practice to do so. His letter of referral to the defendant on 4 February 2004 is, in effect, a near contemporaneous record of his consultation with the plaintiff and the car phone call. I accept his recollection of the consultation with the plaintiff and the follow‑up phone call in the car.
Findings
I find that when Dr Tarala told the plaintiff that the pleural thickening was most likely benign, Dr Tarala discussed the risk of false negatives using a needle biopsy. The plaintiff accepted the advice and the recommended course of action to monitor the condition and have a follow‑up consultation and x‑ray in three and six months respectively ("wait and monitor").
Thereafter the plaintiff became anxious and concerned and wanted a definite diagnosis. He wanted to be sure that he did not have mesothelioma. This necessarily means that he was not prepared to accept Dr Tarala's recommended wait and monitor option.
Thus Dr Tarala referred the plaintiff to the defendant for the purpose of undergoing a biopsy. There was no other reason for the plaintiff to see the defendant. He wanted a biopsy to exclude mesothelioma. It is clear that he was still most concerned about the possibility of mesothelioma and wanted a definite diagnosis.
Further, Dr Tarala wrote a letter of referral to the defendant requesting him to see him "with a view to undertaking a biopsy".
I find that the plaintiff knew that Dr Tarala intended to refer him to a thoracic surgeon and that it was the defendant for the reasons outlined earlier. I do not accept the plaintiff's evidence that the reason he went to see the defendant was for an opinion on whether a biopsy was necessary.
It was against that background that the plaintiff went to see the defendant.
At the consultation, the defendant reviewed the x‑ray and CT scan. He told the plaintiff that the pleural thickening was most likely benign. He recommended the wait and monitor approach.
The defendant did not recommend a thoracoscopy as pleaded by the plaintiff. It was only after the plaintiff insisted on a definite diagnosis as to whether the pleural thickening was benign or not that the defendant advised that a thoracoscopy was a reasonable course of action. The plaintiff consented to a thoracoscopy and also a thoracotomy if that was required.
The evidence establishes that a surgeon cannot be 100 per cent certain that a pleural thickening is benign without biopsy. Core needle biopsy would not achieve this certainty due to the risk of false negative results.
The defendant gave the appropriate advice to wait and monitor. The plaintiff was not prepared to accept that advice and wanted a definite answer.
The plaintiff consented to a thoracoscopy and possible thoracotomy in that context.
The defendant informed the plaintiff of the relevant risk associated with thoracoscopy as outlined above. It was not reasonable or appropriate in the circumstance for the defendant to refer the plaintiff back to a respiratory physician to undertake a core needle biopsy.
Breach of duty by performing the surgery
The plaintiff's withdrawal of consent for a thoracotomy is irrelevant in the context of him consenting to a thoracoscopy.
The surgery was not contraindicated as outlined above.
The plaintiff did not specifically consent to the removal of lung tissue. However, the removal of lung tissue was a reasonable course of action to take in the circumstances of his consent to biopsy, his desire for a definite diagnosis, the medical judgment of the defendant when confronted with the adherence of lung tissue to the pleural thickening and his uncertainty as to whether the adhering lung tissue was benign or not.
Claim of failure to advise/inform
That the defendant did not advise the plaintiff that the pleural thickening was likely benign asbestos related pleural disease
I accept the defendant's evidence that he not only formed the view after reviewing the imaging and synopsis prepared by the plaintiff that the abnormality was almost certainly benign and not representative of mesothelioma or malignancy but that he informed the plaintiff of his view. The defendant said he did so in no uncertain terms. The consultation was memorable because the plaintiff was anxious, he had been asked to see him urgently and he was a fellow surgeon.
Further, the defendant's evidence is consistent with his letter to Dr Tarala dated 6 February 2004 when he outlined his advice to the plaintiff, which he dictated as soon as the plaintiff walked out the door.
Apart from Dr Tarala's view that the symptoms were probably related to the use of the exercise machine, the defendant’s opinion coincided with Dr Tarala's. However, the weight of the expert opinion is that a doctor cannot be 100 per cent sure of the diagnosis of benign without a biopsy, which was the defendant's view. Even so, he did think that the condition was most likely benign.
The defendant's evidence supports the impression that Dr Tarala formed of the plaintiff, namely that the plaintiff was very concerned about having mesothelioma and wanted a definite diagnosis. The plaintiff persisted with this view even after the defendant told him that the condition was most probably benign.
Claim that there was no benefit to the plaintiff in undertaking a biopsy or surgically removing the pleural thickening.
The plaintiff claims that the defendant should have advised him that there would be no benefit to him in undertaking a biopsy or surgically removing the pleural thickening. The defendant admits that he did not in terms so advise the plaintiff. However, he testified that this claim assumes that he knew that the condition was benign.
The defendant's advice was consistent with Dr Tarala's advice. However, the defendant testified that because of the intense anxiety of the plaintiff, the defendant's assessment of the impact it was having on his personal and professional life, a biopsy would have provided him with a definite diagnosis and thus put his mind at rest.
I find that the defendant recommended the option of a wait and monitor approach consistent with Dr Tarala's advice but the plaintiff was adamant that he wanted a biopsy.
The defendant accepted that surgical removing of benign pleural thickening is not generally accepted medical practice. However, he said that again the allegation assumes that there is knowledge that the pleural thickening is benign. If a surgeon knows it is benign then it is certainly not accepted medical practice to remove it. The defendant's evidence is strongly supported by the evidence of Professor McCaughan.
Claim that the relative risks of biopsy procedures not explained
I find that the defendant did discuss the risks of the procedure with the plaintiff. I refer to the defendant's evidence outlined above wherein he refers to his discussions with the plaintiff about the risks. He admitted that he did not discuss the relative risks between the biopsy methods. He assumed that those had been discussed with the respiratory physician. In any event, the defendant did not perform core needle biopsies - that procedure was performed by respiratory physicians. In the circumstances, it was reasonable for him not to discuss the relative risks of biopsy methods.
The plaintiff was there for the purpose of a thoracoscopy and biopsy. The risks which were relevant in the circumstances in which the plaintiff consulted the defendant were the risks associated with thoracoscopy and biopsy.
The plaintiff is a person who admittedly does not take risks. For example, the plaintiff testified that when he had the CT scan, he asked for shielding over his, abdomen, genitals and thyroid to minimise the risk of malignancy form radiation. He asked for limited scans to reduce the amount of radiation. Given his concern about the risks he thought were attached to radiation, I find it extremely unlikely that he would not have canvassed the risks associated with thoracoscopy with the defendant even if the defendant did not volunteer any information about them. Indeed, as mentioned above, the plaintiff testified that he initiated the discussion about the risks, and yet claims that the defendant did not discuss them.
The defendant did discuss the pros and cons of thoracoscopy with the plaintiff as have outlined above. In my view, the defendant adequately informed the plaintiff of the relevant risks of the procedure.
Referral back to respiratory physician
The plaintiff claims that the defendant breached his duty of care to the plaintiff because he failed to recommend and advise the plaintiff to consult a respiratory physician.
In my view it is nonsensical to suggest that the defendant should have referred the plaintiff back to a respiratory physician. First, the defendant saw the plaintiff on the referral of a respiratory physician. Secondly, the plaintiff was not accepting of Dr Tarala's recommendation to monitor and follow up the condition. Thirdly, the plaintiff was very anxious and concerned to the point where the defendant thought that his personal and professional life was being affected and that he was determined to have a biopsy. Even on the plaintiff's evidence, it was he who suggested to the defendant that a biopsy be undertaken. According to the plaintiff, the defendant said it was his "call" whether or not to have a biopsy. He was therefore given the appropriate options and elected and consented to have the thoracoscopy and biopsy.
Professor McCaughan's view is that in those circumstances, a thoracoscopy was a reasonable course of action. A "needle biopsy" could have been done but that would not provide the definite diagnosis the plaintiff which the plaintiff so desired.
It is not pleaded that he did not give a fully informed consent.
Summary of findings on duty to inform
The defendant accepts that he was under a duty to advise the plaintiff that the pleural thickening was most likely benign and to inform him of the risks and complications of a thoracoscopy. I find that he did that.
The defendant was not under a duty to advise the plaintiff that there would be no benefit in taking a biopsy of the pleural thickening or surgically removing it as he could not be certain that it was benign and the plaintiff wanted a definite diagnosis. Given his clinical findings and given that he was not able to give a definite diagnosis, the defendant was not under a duty to inform the defendant that surgery was not indicated. Notwithstanding that, that was his initial advice which the plaintiff was not prepared to accept as he wanted a definite diagnosis.
The defendant was not under a duty to inform the plaintiff of the relative risks of injury and complication between the methods of biopsy. The defendant did not perform core needle biopsies. The defendant was dealing with the plaintiff in the context of the plaintiff being aware of the results of the x-ray and CT scan which indicated that the pleural thickening was most likely benign and rejecting the advice to wait and see and wanting a definite diagnosis. In those circumstances, an offer to biopsy by core needle would not have been appropriate. It would not have provided the plaintiff with the answer he insisted upon.
There was no direct evidence of what the plaintiff would have done had he been warned of all the pleaded relevant risks.
However, I infer that even if the defendant did breach the duty to inform as pleaded, I have no doubt that the plaintiff would have decided to proceed with the thoracoscopy given:
•the medical experience of the plaintiff and his general understanding of a thoracoscopy
•the advice of his brother
•that both Dr Tarala and the defendant had informed him that the pleural thickening was most likely benign, which opinions were confirmed by radiology of which the plaintiff was aware
•his rejection of the advice to wait and monitor the pleural thickening given by his respiratory physician and the defendant
•that the risks of core needle biopsy had been explained by Dr Tarala
•his overwhelming desire for a definite diagnosis
•his acceptance of the advice that only a biopsy would give him a definite diagnosis
•the opportunity to reflect on the advice which the plaintiff was medically qualified to do and his decision to proceed to thoracoscopy after such reflection
Did the defendant recommend a thoracoscopy?
The plaintiff claims that the defendant breached his duty of case by recommending a thoracoscopy.
I find that the defendant told the plaintiff that the condition was most likely benign. As the plaintiff wanted a definite diagnosis, the defendant told him that a biopsy was required to be certain. In those circumstances, he told the plaintiff that a thoracoscopy and possible thoracotomy was a reasonable course of action.
In the circumstances, this was entirely reasonable advice. The plaintiff was not prepared to accept Dr Tarala's recommendation; he consulted the defendant in order to undergo a biopsy; and he rejected the option to wait and monitor. I am not satisfied that the defendant told the plaintiff that this was the course of action he personally would take. Even if he did say that, that cannot be interpreted as a positive recommendation of thoracoscopy. If anything it is simply reassurance. In any event, the defendant's personal preference, even if given, is irrelevant. Given those factors, the plaintiff accepted the advice that to be certain, the method of proceeding was thoracoscopy and biopsy. He was aware of the risks of the procedure. He gave his written consent to the procedure.
The defendant's evidence that the plaintiff insisted on a biopsy is supported by Dr Tarala's evidence of his dealings with the plaintiff, particularly his evidence of the phone call with the plaintiff on 3 or 4 February 2004. In my view, the defendant provided the plaintiff with all the advice and information that a reasonable person in the plaintiff's position would have required in order to decide whether or not to undergo the thoracoscopy and biopsy.
Whether the defendant breached has duty of care to the plaintiff in carrying out the thoracoscopy, removing lung tissue without consent in circumstances where surgery was contraindicated: Statement of claim pars 11, 12, 13
It is not the plaintiff's case that he did not give a fully informed consent. It is his case that he consented to a thoracoscopy and biopsy. It is not pleaded that the plaintiff only consented to a core needle biopsy or "punch" biopsy.
In my view, the negligence of otherwise of the surgery which is alleged to be contraindicated and the claim that the plaintiff did not consent to the removal of lung tissue, needs to be assessed in the light of the admitted fact that the plaintiff consented to a thoracoscopy and my finding that he wanted a definite diagnosis.
The defendant did not agree the CT guided core needle biopsy carries a lower risk of injury and complication. He said that a core needle biopsy can have significant complications including bleeding, damage to the intercostal nerves or arteries and pneumothorax (collapse of the lung).
I accept the evidence of the defendant and Professor McCaughan that the only method of achieving a definite diagnosis that the pleural thickening was benign was to perform a biopsy of the pleural thickening and surrounding tissue. Dr Allen effectively conceded that this was a reasonable course of action.
Removal of lung tissue
I do not accept the plaintiff's evidence that he told the defendant that he would have been "horrified" to have lung tissue removed. He may well have said that to the nurses in the context of their discussions pre-surgery. Given that the defendant was dealing with a highly anxious patient who is a professional colleague, if the plaintiff had communicated that to the defendant, in my view, it is something the defendant would not have forgotten at least not so close to the surgery. If the plaintiff had made that comment, it is highly unlikely that the defendant would contravene the express wishes of a highly anxious patient who was also a professional colleague and remove the lung tissue he did.
In any event, the comment if made, cannot be interpreted as an unequivocal instruction not to remove a piece of lung for biopsy.
Accordingly, I find that the plaintiff did not instruct the defendant not to remove lung tissue, either in terms or by implication.
Once a patient is informed in broad terms of the nature of the proposed treatment and the patient voluntarily consents to the treatment a valid consent is obtained.
Was the removal of the pleural thickening negligent?
Given the pathology which the defendant found; that he could not be certain whether it was benign; and that the whole purpose of the procedure was to obtain a definite diagnosis; it is my view that the removal of the pleural thickening was appropriate and necessary. Professor McCaughan's evidence supports this view and the course of action taken by the defendant.
Having reviewed the transcript of the defendant's evidence about the surgery he performed on the plaintiff, Professor McCaughan said:
"… the surgery performed by Dr Edwards on that occasion was of the same form of surgery that I would do on a weekly basis in these types of patients."
He explained this by adding:
"… mesothelioma does not arise in pleural plaques … That's why there is no point biopsying the pleural plaques. You have to get tissue from between the pleural plaques to be able to tell patients they do not have mesothelioma. The mesothelioma is not in the pleural plaque. The pleural plaque just shows - in any of us - that in some time in the past we were exposed to asbestos. Has no other clinical meaning … The vast majority of patients - and as I have said earlier, I have operated now on over 600 patients with mesothelioma - have pleural plaques as well as malignancy between the pleural plaques. So the crux of the matter here is not about the rights or wrongs of needle biopsy. Needle biopsy is used in our practice for lung cancer and large pleural masses, as a matter of course."
Dr Allen testified under cross‑examination that if a thoracoscopy is performed for the purpose of determining whether an area is malignant or otherwise, it is reasonable for the surgeon to take whatever a sufficient amount of tissue is to enable a confident diagnosis to be given. He also agreed with the proposition that when a surgeon does a biopsy, they will usually allow for a margin of error and take not only the precise amount of abnormal tissue but also some of the surrounding tissue to ensure that the malignancy has not spread.
Was the removal of lung tissue negligent?
Dr Allen referred to the operation report and interpreted the defendant’s reference to the underlying lung appearing normal as the lung generally appearing normal. Given that, he said there was no need to biopsy the lung. He explained the complications associate with lung biopsy.
However, as outlined earlier, I accept the defendant's explanation of his operation report. He was not referring to the lung generally, but to the area under the pleural plaque. It is in that context that I now consider whether it was reasonable in the circumstances to biopsy the lung.
There is no evidence to support a finding that when the defendant observed the pleural thickening via the thoracoscopy that he ought reasonably to have known that it was benign.
Even Dr Allen did not think that it was possible for a surgeon to "clearly pick" benign from malignant thickened tissue.
I refer to the defendant's evidence outlined above in relation to why he removed the lung tissue. He was uncertain as to whether the thickened pleural tissue was benign or malignant.
He said it was a simple procedure to remove the small portion of lung tissue. He did not consider a core needle biopsy because of the risk of sampling error.
The defendant's evidence on this issue is supported by the uncontradicted evidence of Professor McCaughan that he would have performed a similar procedure in order to achieve a confident diagnosis of the benign nature of the thickening. That is, in order to achieve the outcome on which the plaintiff insisted.
Plaintiff's anxiety
The statement of claim does not allege that given that he was an anxious patient, the defendant was under a duty to give him time to reflect upon his advice and recommendations. To some extent during cross‑examination but significantly in closing submissions, the plaintiff's counsel made this allegation.
However, the plaintiff clearly had the opportunity to consider and reflect on what the defendant had said to him and his own decision to proceed to surgery. Dr Tarala gave him advice on 29 January 2004 and, in effect, the defendant reiterated it on 4 February 2004. In my view, the plaintiff, albeit an anxious patient, was also a surgeon and would have been better placed than lay patients to assess, consider and reflect on the advice that he had been given. There was ample time to do that in my view.
Whether the defendant committed an assault and battery on the plaintiff
In pars 15 and 16 of the statement of claim, the plaintiff claims that because he had withdrawn his consent to a thoracotomy, the defendant committed an act of assault and battery on the plaintiff by undertaking the surgery.
The tort of battery is constituted by an intentional and direct interference to the body of another, in the absence of consent.
It does not seem to be in dispute that if the plaintiff proves that he did not consent to the removal of lung tissue, then the tort of battery is proved.
It is not relevant to this claim that the plaintiff withdrew his consent to a thoracotomy. That is a different procedure to a thoracoscopy.
The plaintiff's case was run on the basis that he had not consented to the removal of lung tissue. However, the plaintiff does not dispute that he consented to a thoracoscopy and biopsy. I have already found for the reasons outlined that the plaintiff did not inform the defendant that he did not consent to the removal of lung tissue.
I have found that the defendant did explain the risks of the procedure to the plaintiff. The plaintiff signed the consent form. I reject his evidence that he did not read the consent form before he signed it. The plaintiff is a self‑described "obsessive compulsive"; he was anxious about having mesothelioma; he had effectively rejected the advice of both Dr Tarala and the defendant to wait and monitor the condition; he is a surgeon whose own practice must involve patients signing consent forms for every procedure he undertakes; and his involvement in advising on clinical governance where 20 per cent of this work involves "informed consent" must equip him with the knowledge of the importance and effect of a signed consent. For all of these reasons, I find it unbelievable that the plaintiff did not read the consent form before he signed it and that he could not specifically recall whether he read it or not.
The plaintiff consented to a procedure which would provide him with a definite diagnosis that the condition was benign. Given that and all of the circumstances, including his consultation with Dr Tarala, I find that the plaintiff consented to a thoracoscopy and biopsy which would achieve that result. For reasons already canvassed, a core needle biopsy would not have achieved the result the plaintiff clearly wanted.
The plaintiff agreed by signing the consent form to "additional operations/procedures and/or treatments being carried out as required as long as they related to the reason for the primary procedure".
The reason for the "primary procedure" was to obtain a definite diagnosis. When confronted with the particular pathology during the operation, the defendant took the appropriate action by removing a small piece of lung tissue for histological examination.
I would therefore dismiss his claim for damages for assault and battery.
Damages
The plaintiff claims that he was deprived of the opportunity of avoiding the surgery by undergoing a core needle biopsy.
This head of damages assumes that the removal of the pleural thickening and the small segment of adhered lung were unnecessary and/or negligent and/or that the plaintiff did not consent to that surgery.
I have found that none of those situations arises in this case.
Alleged pain and injury
Neuralgia
It is not in dispute that if the plaintiff has suffered and suffers from intercostal neuralgia that this has been caused by the surgery. The defendant testified that neuralgia is a common complication after many surgical procedures including thoracoscopy and thoracotomy. He said intercostal neuralgia usually settles within a few weeks to a few months but he has seen it last up to 18 months on occasions. He has never seen it last past two years. That may well be his experience. He did not discount in terms the possibility of neuralgia extending beyond his experienced time frame.
The weight of the expert opinion is to the effect that post-operative neuralgia can continue for many years. I accept the plaintiff's evidence that once the analgesics have worn off that he suffered neuralgic pain. He said that it was "very bad for a couple of months" after the surgery. He said it persists to the present day particularly when he is stressed.
When Dr Prichard saw the plaintiff in July 2004, the pain had reduced. Dr Prichard testified that if neuralgic pain persists for four years, then the patient is a lot less likely to recover. However, I am not satisfied that the neuralgic pain is permanent. The most I can say is that the pain persists to the present time but is not as severe as previously experienced.
However, there is no evidence that the neuralgia was caused by any negligent act by the defendant. The neuralgia was a risk canvassed with the plaintiff and was the consequence of the thoracoscopy to which the plaintiff consented.
There is no evidence that had a punch biopsy been performed via thoracoscopy, that the risk of neuralgia would have been reduced or eliminated. The evidence establishes that it is the mechanism of thoracoscopy, which creates the risk of neuralgia. Accordingly, it is likely that neuralgia would occur in any event.
Pleural effusion
The defendant does not dispute that the plaintiff suffered a small pleural effusion following the surgery which resolved spontaneously a short time afterwards. It is accepted that pleural effusions commonly follow the performance of thoracic surgery. However, there is no evidence that the pleural effusion was caused by any negligent act by the defendant. There is no evidence that if the lung tissue had not been removed a pleural effusion would not have resulted.
In any event, there was no evidence that the plaintiff suffered any pain or inconvenience as a result of the pleural effusion. Accordingly, in my view this does not give rise to any claim to damages.
Reduced lung capacity and respiratory symptoms
When Dr Prichard examined the plaintiff on 5 March 2004 the plaintiff had mild reduction in lung capacity. However, by the time he was examined on 5 July 2004 and on 13 October 2008 the plaintiff's lung capacity was normal.
The defendant testified that reduced lung capacity was "absolutely not" the result of the thoracoscopy and nor would the removal of a small amount of lung cause this. There is no evidence to the contrary.
I do not accept that the respiratory symptoms are the result of the surgery.
Only Dr Prichard supports the plaintiff's claim that the surgery caused his shortness of breath and cough. Until he gave evidence, Dr Prichard's opinion was that these symptoms were unrelated to the surgery.
The evidence of Dr Allen, the defendant and Professor McCaughan does not support Dr Prichard's view.
I accept Professor McCaughan's view that it is highly unlikely for the respiratory symptoms to develop four to six months after the surgery. He has never seen this happen in his experience as a thoracic surgeon.
Even if the respiratory symptoms were the result of the surgery, there is no evidence that they were caused by any negligent act of the defendant.
In the circumstances I find that these symptoms were unrelated to the surgery.
Hernia
The plaintiff's claim that he suffered a paraumbilical hernia and left inguinal hernia is based on the assertion that they developed as a result of his coughing. As I have found the surgery was not a material cause of the plaintiff's cough, it necessarily follows that the plaintiff has failed to establish any causal link between the surgery and the hernias.
Future medical expenses
Assuming that the hernias were causally related to the surgery, the plaintiff has adduced no evidence as to the cost of repairing them. He was particularly well placed to do so given that he is a surgeon. Further, this information could have been supplied by Dr Smith who reported as to the hernias on 24 November 2008.
Past medical expenses
There is no evidence that the plaintiff has incurred medical or other out of pocket expenses as a result of undergoing the surgery.
Gratuitous services
I reject this claim. The plaintiff did not give any evidence capable of supporting a finding that he has or will require services to be provided by friends and relatives. The only evidence even marginally relevant to this head of claim is the plaintiff's evidence that he avoids any actions which involve twisting, such as pruning. There is no evidence about the physical effects of recovery for a hernia operation apart from Dr Smith's opinion that the plaintiff would be off work between two and six weeks.
Conclusion
I dismiss the plaintiff's claims for negligence and assault and battery.
I do not assess provisional damages given my factual findings.
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