KL v Farnsworth - [2002] NSWSC 382

No judgment structure available for this case.

CITATION: KL v Farnsworth [2002] NSWSC 382

FILE NUMBER(S): SC 20441/98

HEARING DATE(S): 19/11/2001
20/11/2001
21/11/2001
22/11/2001
23/11/2001
26/11/2001
27/11/2001
28/11/2001
29/11/2001
7/12/2001

JUDGMENT DATE: 9 May 2002

PARTIES :

KL - Plaintiff
Dr Robert H Farnsworth - Defendant

JUDGMENT OF: Simpson J

COUNSEL : P Menzies QC - Plaintiff
P Brereton SC - Defendant

SOLICITORS: David Hirsch - Plaintiff
John Pavlakis - Defendant

CATCHWORDS: risks and possible consequences of medical procedures - adequate information - duty to warn of reasonably foreseeable consequences - breach of duty - competing advantages and disadvantages - alternative forms of surgery - causation

CASES CITED: Rosenberg v Percival [2001] HCA 18, 75 ALRJ 734
Rogers v Whitaker (1992) 175 CLR 479
S v R (1983) 33 SASR 189
Chappel v Hart [1998] HCA55; 195 CLR 232

DECISION: Verdict for the defendant.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
professional negligence list

SIMPSON J

9 May 2002

20441/98 KL v Dr Robert Farnsworth
JUDGMENT

1 HER HONOUR: The plaintiff, to whom I will refer as KL, brings these proceedings against the defendant, Dr Robert Farnsworth, claiming damages as a consequence of what she claims was negligent medical advice given to her by him in and about November 1995. KL does not claim that treatment subsequently afforded to her was negligently administered; her case is solely based upon the proposition that Dr Farnsworth failed adequately to disclose to her material matters concerning the treatment he offered her; that this led to her making a decision to accept a particular form of treatment that she would not, if fully informed, have made; and that this, in turn, caused compensable damage.

2 In brief terms the background facts are these. KL was born on 8 December 1963. At birth she suffered a rare abnormality, called “bladder exstrophy”, meaning that her bladder was partly outside her body. She had some immediate ameliorative treatment, the nature of which does not emerge clearly from the evidence; in 1968, when she was five years old, she underwent surgery identified (ex C tab16) as “uretero-ileostomy”. This involved the removal of a section of her right intestine (the ilea) to create an artificial urethra, called an ileal conduit. This did not create a normal urinary excretory system, which KL has never had. From the age of five KL excreted urine through the ileal conduit into a bag worn externally. Remarkably enough, and to her (and her medical practitioners’) considerable credit, KL lived thereafter an entirely normal and very active life. She engaged in all normal sports; in 1981 at the age of eighteen, and in 1987, at the age of twenty-three, she gave birth to, respectively, a son and a daughter. Later in 1987 she married (the father of the two children, with whom she had had a continuing relationship). Although she appears to have been an under-achiever at school and to have abandoned formal education in 1978, after completing year 10, she was successful in a variety of employment endeavours. Her formal educational achievements do not reflect her intelligence or capacity, which are obviously significant. The family initially lived in Sydney.

3 Between 1983 and 1985, there having been advances in the medical technologies available for dealing with KL’s condition, she was offered a new procedure that would possibly have obviated the need to use the bag. Because the procedure was in its early stages, there was uncertainty about its efficacy, and KL’s life was not unduly impeded by her condition, she declined the surgery at that stage.

4 However, shortly after this, KL began to contract recurring urinary tract infections, necessitating, on occasions, hospital admissions.

5 KL’s husband was a member of the NSW Police Service. In 1985 the family moved to Tamworth and KL took full-time employment in a local hotel as a restaurant manager/functions coordinator, and part time employment in a bowling club. Later she took work as a cosmetic consultant and was simultaneously teaching at the local TAFE college, and undertaking a teaching degree at the same college. Between 1984 and 1994 there were periods when she worked, in total, 70 or 80 hours per week.

6 In 1991 KL had further surgery, a “lithotripsy” for kidney stones. Nevertheless, she continued with her long working hours, her sporting activities and her family responsibilities. She accommodated the need to change her appliance into her daily routine. So successful was her adaptation to the ileal conduit and its consequences, that none of her friends, and none of her husband’s family, were aware of her condition. Photographs (ex A) tendered in evidence support the contention that KL lived a completely normal life with no outward signs of departure from the physical norms.

7 From 1992 KL began to experience more frequent kidney-related pain and urinary tract infections.

8 In 1995, for various reasons, KL and her husband decided to move to Cairns. Both intended to undertake tertiary studies, her husband for the purpose of professional advancement in the Queensland Police Service, which he proposed to join. KL intended to seek work in Queensland. Their living expenses were such that her financial contributions were essential. This was, in part, because their son had won a scholarship to a private boarding school in Sydney, but the scholarship did not pay all of the associated expenses.

9 In August 1995, just before the planned move, KL suffered a urinary tract infection so severe as to require hospitalisation. She was referred to Dr Farnsworth who is, undoubtedly, a leading and distinguished urologist. She first saw him on 4 October 1995. On 8 October 1995 Dr Farnsworth admitted her to the Prince Henry Hospital for tests. On 9 October, following her discharge, she had a discussion with Dr Farnsworth. Precisely what took place during these discussions is one of the major factual issues raised for determination. It will be necessary to consider in detail the competing accounts given by KL and Dr Farnsworth. In short, Dr Farnsworth advised KL that, having regard to her condition, three alternative courses of action were available. The first was to do nothing, which was, it was common ground, not really an option at all. It was plain that KL confronted major abdominal surgery. The two options realistically available were a repeat of the 1968 ileal conduit, or a more recently developed procedure called urinary undiversion. Urinary undiversion involved the creation of a “neo bladder”, again using part of KL’s intestine. A necessary feature of the urinary undiversion was that KL would be required thereafter to “self catheterise”. Two alternative methods of so doing were available, the differences between which were said to be no more than “cosmetic”; that is, there was no medical indication by which either method was to be preferred. However, the circumstances in which self catheterisation was to be performed and its overall ramifications are very relevant to the issues in contention.

10 Having considered the advice given to her by Dr Farnsworth, on 23 November 1995 KL underwent urinary undiversion. She remained an in-patient at Prince Henry Hospital until 22 December 1995, when she travelled by air to her new home in Cairns. The sequelae of the surgery has, for KL, been quite disastrous. Notwithstanding concerted efforts on the part of trained nursing staff, and on the part of Dr Farnsworth, she was unable to self catheterise. She suffered severe and constant pain. From a few days after the surgery, KL suffered from severe diarrhoea. She was incontinent of urine. There were certain complications not necessary to detail here. Many of those complications have, in varying degrees, continued. From her discharge from hospital on 22 December 1995, she remained at home in Cairns until 16 January 1996, when she was readmitted to Prince Henry Hospital. During this time she was largely confined to bed, reliant upon others, her husband in particular, for help in her daily routine and personal care.

11 On 22 January 1996 KL underwent further surgery under general anaesthetic; she remained in hospital until 13 February that year. The years since have been littered with repeated admissions to different hospitals. It will be necessary to say more about these in due course.

12 The primary question for determination is whether Dr Farnsworth gave KL adequate information about the risks and possible consequences of the urinary undiversion procedure such as to enable her to make an informed decision about her choice of surgery; if it is found that he did, that finding will conclude the proceedings in Dr Farnsworth’s favour. If, however, it is found that the information given by Dr Farnsworth was not adequate, then a secondary question, of causation, arises. That question involves an assessment of what KL would have done had she been given the requisite information. This is never an easy question to resolve, because a plaintiff’s evidence is, inevitably, that had he/she been fully informed of the risks of the procedure, then he/she would have opted for a different course; but that evidence (even in the case of a plaintiff whose credibility is otherwise unimpeachable) is to be approached with extreme caution, given the inevitability of the wisdom of hindsight: see, for example, Rosenberg v Percival [2001] HCA 18, 75 ALJR 734.

13 Further, it is to be borne firmly in mind that the assessment is not an assessment of what medical decision would have been in KL’s best interests, taking into account all relevant considerations; it is an assessment of what decision, given correct and adequate information, she would have made in the circumstances. That question involves an evaluation of KL’s character, personality and thinking.

14 It is KL’s case that the urinary undiversion surgery carried with it a variety of risks and consequences which, had she been aware of them, would have been material to her election, that Dr Farnsworth was under a duty to explain them to her, and that he failed to do so. The risks and consequences upon which KL relies are identified as:

(i) possible change in bowel habit, including the possibility of diarrhoea;

(ii) a risk of continuing incontinence;

(iii) a need for further and/or repeated follow up surgery;

(iv) the need to self catheterise following urinary undiversion itself involved a procedure which was inconvenient, embarrassing and difficult;

(v) possible recurrent urinary tract infections;

(vi) possible problems caused by mucus formation.

15 KL’s sole complaint is that, in a number of respects, Dr Farnsworth failed to advise her of these material risks and consequences inherent in the surgery he proposed; and she asserts that, if she had been fully and properly informed of those risks and consequences, she would have opted for a different form of treatment.

16 The law to be applied in the determination of these issues is that which was stated by the High Court in Rogers v Whitaker (1992) 175 CLR 479. The majority (Mason CJ, Brennan, Dawson,Toohey and McHugh JJ with whom Gaudron J agreed in a separate judgment), wrote:

“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. This duty is subject to the therapeutic privilege.”

17 No question of therapeutic privilege arises in the present case.

18 Their Honours endorsed an earlier decision of the Full Court of the Supreme Court of South Australia (S v R (1983) 33 SASR 189) in which King CJ identified factors relevant to the determination of the issue as including the nature of the matter to be disclosed, the nature of the treatment, the desire of the patient for information, the temperament and health of the patient and the general surrounding circumstances.

19 In Chappel v Hart [1998] HCA 55; 195 CLR 232, Gummow J wrote:

Rogers v Whitaker

20 In the same case Kirby J wrote:

post hoc ergo propter hoc

21 These are the principles to be applied in considering whether Dr Farnsworth failed adequately to advise KL of relevant risks and consequences of the procedure he recommended and performed.

22 I would add that it is important to bear in mind that these judgments are not to be made on the basis of outcome – that is, what in fact eventuated – unless it is shown that that outcome was a known potential result.

23 The case put against Dr Farnsworth on behalf of KL involved the assertion of a variety of separate instances of failure to draw to her attention, or adequately to draw to her attention, potential risks associated with urinary undiversion. In each case, evaluation of the claim involves:

(i) An assessment (objectively speaking) of whether such a risk exists and if so the degree of the risk involved;

(ii) findings of fact (where there is a conflict in the evidence) concerning precisely what Dr Farnsworth did tell KL;

(iii) a determination as to whether the information provided by Dr Farnsworth was adequate in the circumstances; and

(iv) if and where it is found that any particular warning is inadequate, the drawing of a conclusion (subjectively arrived at) as to what KL would, on the probabilities, have done if an adequate warning had been given.

24 This is not, however, a case such as the court had to deal with in Rogers v Whitaker, where a single potential adverse consequence was relied upon, the plaintiff asserting that if she had been warned of that single adverse consequence, she would not have proceeded with the surgery. This case is different in two respects. Firstly, KL was not faced with a choice of whether or not to undergo surgery; it was common ground that, realistically, she had no choice other than to have one of the two operations offered to her; secondly, the case she now presents, relying on a number of asserted failures to warn, involves an assessment of each of those asserted failures, and what she was in fact told: more importantly, the outcome cannot be decided by reference only to individual failures to warn, if any is established. The outcome will depend upon conclusions concerning the overall picture: that is, the overall picture as described to KL by Dr Farnsworth; and the overall picture, as it was reasonably foreseeable and as Dr Farnsworth ought to have described it (if the two are different). What is not relevant to the determination of liability is the actual outcome, unless that outcome accorded with what is shown to have been reasonably foreseeable. Ultimately, the decision will depend upon:

(i) findings of fact about the risks, and the degree of any such risk, associated with each procedure;

(ii) findings of fact about what Dr Farnsworth did tell KL in relation to that particular risk, and whether that information was adequate in the circumstances;

(iii) if it is found that Dr Farnsworth failed adequately to draw to KL’s attention some particular risk associated with urinary undiversion, an assessment of what KL would have done, had she been adequately warned of that risk, but also having regard to any risks associated with the alternative surgery, whether or not that risk is shown to have been pointed out to her.

25 Two further observations need to be made. Firstly, while each assertion needs to be separately examined and evaluated, the final determination involves evaluation of the composite picture – that is, an evaluation of what KL would have done had she been fully informed of the risks and benefits associated with each method of surgery. The issues cannot be compartmentalised.

26 The second observation follows from the first. It is that, in the particular circumstances of this case, the question is not whether, if fully informed, KL would have opted to undergo surgery: that question was foreclosed. She had, in effect, no alternative to surgery. The decision she had to make was which of two alternative forms of surgery she was to undergo. This meant that Dr Farnsworth’s obligation, or duty, was to ensure that she had a comprehensive and complete picture of the competing advantages and disadvantages of each of the two operations, so as to enable her to perform a proper balancing exercise.

27 Both parties gave an account of the meetings between them (the first of which took place at Dr Farnsworth’s consulting rooms at Randwick on 4 October 1995 and the second on 8 October at the Prince Henry Hospital), of the conversations that ensued, and the advice given to KL by Dr Farnsworth. The two accounts bear little resemblance to one another.

what did Dr Farnsworth tell KL?

KL’s account:

28 KL’s first account of the conversation she had with Dr Farnsworth was given in a written statement made by her on 28 January 2000, which became exhibit D in the proceedings. In this statement KL recounted the consultation and discussions with Dr Farnsworth on 4 October 1995 in which, she said, preliminary subjects were discussed and Dr Farnsworth asked her questions about her home life, marriage, occupation, children and the circumstances of the births of the children. She said that Dr Farnsworth congratulated her on the successful way in which she had coped with her condition; that he then examined her, told her that she would need immediate surgery to rectify scar tissue caused by kidney stones and that she would need further tests in order to enable him to determine what future treatment she required. She was admitted to Prince Henry Hospital on 8 October 1995 where tests were performed and she was discharged the following day. She received a message that Dr Farnsworth wished to speak to her and she located him and had a further conversation with him. In this conversation, according to KL, Dr Farnsworth said words to the effect of:

“Your ureters need replacing as they are badly damaged by some scar tissue and have blockages in them. If left untreated you will keep getting recurring urinary infections and reflux into your kidneys and your ureters will collapse.”

29 She said that Dr Farnsworth then drew a picture of ureters coming from the kidneys in a normal bladder, and then illustrated how her own physiology diverged from the norm. Dr Farnsworth then said words to the effect of:

“I will fashion new ureters out of intestines as you have miles of this. You will not notice it missing and you will have no side effects from using intestine …

Your ileal conduit will need to be redone at the same time … [because] your ileal conduit is wearing out and most ileostomies have about a ten year life span and are usually redone every ten years. I am surprised that yours has lasted so long.”

30 Dr Farnsworth then told her that she had “a few options to choose from” but whatever she chose she would need major surgery “due to the state of your ureters”.

31 KL asserted that Dr Farnsworth did not at any time offer her a different way for her ureters to be repaired but said that it would be done by using intestine to make new ones. No other option was offered to her.

32 KL’s statement goes on to assert that Dr Farnsworth said words to the effect of:

“The first option is for you to have your ileal conduit redone at the same time as your ureters but if you choose this option you will have to have major surgery every ten years for the rest of your life. … Ileal conduits are rarely performed any more as the preferred method these days is self catheterising.”

33 KL asked what self catheterising was, to which Dr Farnsworth replied words to the effect of:

“That is the next option I am giving you. We form a neo bladder from the existing bladder and the new ureters will lead from the kidneys into the new neo bladder instead of the urine running straight into a bag. You are made continent and a small plastic catheter is inserted into the neo bladder two or three times a day to empty it. This is a painless and simple method which gets rid of the bag and no one can tell you are doing this as it is performed sitting on the toilet and only takes a few minutes. Also it has the advantage of not showing through any clothing or swimwear. …

If you choose the self catheterising method there are sisters at Prince Henry Hospital whose job it is just to teach people how to self catheterise and you will be taught by them after my surgery …

There are two methods of catheterising and you will have to decide which one you want if you choose this option. The first method is through the stomach. A small stoma is made and a couple of times during the day you insert a small catheter into the stoma while sitting on the toilet and empty your bladder. The second option is having no stoma and catheterising urethrally, which means you insert the catheter into the bladder by the urethra and you do not have a stoma on your stomach.”

34 In answer to a question from KL Dr Farnsworth said that the only difference between the two methods was “cosmetic”. According to KL Dr Farnsworth said words to the effect of:

“I have performed hundreds of undiversions where I have got rid of the bag and got people catheterising. Many people with spina bifida or paraplegia used to have ileostomies but most people with spina bifida have been converted successfully and paraplegics now are not given a bag but self catheterise.”

35 In answer to a question from KL about the need for an undiversion to be redone every ten years, Dr Farnsworth said words to the effect of:

“Occasionally you might not be fully continent after the first operation. You may leak a little but a small operation procedure will fix this and tighten you up and it is very low maintenance from then on.”

36 KL then asked Dr Farnsworth which procedure he recommended, to which he replied in words to the effect of:

“I will reconstruct your ileal conduit if you wish but I would prefer to do an undiversion and get you to self catheterise since you are quite young and will have no problems adapting to the change and looking at you body image is important to you so cosmetically this way is an advantage and you have to have major surgery anyway.”

37 She said that she asked Dr Farnsworth which catheterising method he recommended and he repeated that the only difference was cosmetic and that, whichever procedure she opted for, he would “tidy up” her stomach scar so her choice was open.

38 Dr Farnsworth repeated that whichever surgical option she chose she would have to undergo major surgery and then asked when she would like it done. KL indicated her tentative preference for catheterising urethrally, and in answer to Dr Farnsworth’s question about when she would like to have the surgery done, she said she would like to have it done as soon as possible. She explained that this was because she understood there was some urgency in any event, that she had given up both her jobs, was having continued infections, was about to move to Cairns and wanted to rejoin the workforce at the beginning of February 1996. There followed some discussion about scheduling the operation and what KL could expect by way of hospitalisation time and recuperation. KL repeated that it was important that she be able to return to work by February 1996, stressing her financial commitments, the private school fees she and her husband were facing, and their need to buy a house. She expressed her preference for the earliest possible date for the surgery and Dr Farnsworth agreed to fit her in during November. Dr Farnsworth then told her to consider the options he had outlined, told her that he would see her on her admission to the hospital and ascertain what choice she had made and said he would then “talk to you in more detail”.

39 On her admission Dr Farnsworth visited her one morning and asked what choice she had made. She told him she had decided to opt for catheterising urethrally. Dr Farnsworth told her she would be “in quite a bit of pain” following the surgery and she would receive assistance from suitably qualified professionals and that a physiotherapist would speak to her before the surgery. He told her that this was to enable her to get out of bed and become mobile as quickly as possible, and also to show her breathing exercises for after theatre. He told her that when she was up and about she would be taught to self catheterise “which will be easy”.

40 KL expressed some anxiety about the surgery and her uncertainty about whether she had made the right choice, to which Dr Farnsworth reiterated yet again that no matter which option she chose she would still have to undergo major surgery. He reassured her and left.

41 KL also gave oral evidence about the meetings with Dr Farnsworth. She said that Dr Farnsworth gave her no warning about any risk of infection associated with self catheterisation. Nor did Dr Farnsworth warn her that the undiversion surgery carried with it a risk of diarrhoea. Similarly, Dr Farnsworth did not say anything to her to indicate a potential problem with mucus following the undiversion surgery. He did not warn her that, following the surgery, further hospitalisation may be necessary.

42 KL was cross-examined at length by senior counsel for Dr Farnsworth. She agreed that he had warned her that the ileal conduit surgery would need to be renewed every ten years but denied that he had also told her that that surgery carried a risk of complications of infection, stone formation and kidney scarring. She agreed that Dr Farnsworth told her that the initial surgery might not entirely cure her incontinence, but that a further, more minor, operation would remedy that position.

43 Of some importance was her denial that Dr Farnsworth told her that surgery using bowel has the potential to impact on bowel function, but that the risk was small. She denied that he said there had been reports of malignancy if faeces and urine mixed. She denied that he had advised her that the surgery could cause strictures in the conduit at the site where it joined the ureters, or that blockages in the conduit could cause back pressure on her kidneys; she asserted that what Dr Farnsworth told her in this respect was that she might experience reflux from the kidneys. She maintained that Dr Farnsworth had spent a good deal of time on the first visit talking about her ureters. She denied that on the second visit Dr Farnsworth had repeated much of what he had previously told her.

Dr Farnsworth’s account:

44 Dr Farnsworth gave an extensive account of his recollection of the conversation with KL. He illustrated this, in the court, with reproductions of the drawings that he said he had done during the consultation to demonstrate to KL what her previous surgery had done, and what he proposed. On Dr Farnsworth’s account, he drew a number of diagrams for her; KL maintained that there had been only one.

45 Dr Farnsworth gave his account of what he had said to KL (perhaps unsurprisingly in the circumstances) in the form of reconstruction from his usual practice; that is, he commenced many of his answers by saying:

“I would have demonstrated … “

“I would have said … “.

46 Given that the conversations took place in 1995 and Dr Farnsworth had not been asked to turn his attention to the precise details of the conversations until early in 2000, it is hardly to be wondered at that he gave his evidence in this way. Giving his evidence, Dr Farnsworth said that he “would have further explained”:

“Mrs [L], you have been very fortunate because you have had this ileal conduit for 25 years. We have now learned, although it was accepted practice when you had it, we have now learned that ileal conduits, after ten years there is a significant increase in the rate of complications, exactly as you are having and they tend to start after ten years, sometimes earlier, occasionally later. Once they start you are at risk of progressive infections, progressive kidney damage and the situation, as I evaluated it from the x-rays, was that something would need to be done about it.”

47 He confirmed evidence given by KL that he had congratulated her on the manner in which she had coped and lived a normal life.

48 Dr Farnsworth denied KL’s evidence that he had said to her:

“Your ureters have a lot of scar tissue from kidney stones.”

“ ‘The second option is to revise and redo your ileal conduit which would be a major operation but it would take you back to where you were and, as I’ve explained to you about our recent knowledge of the, and knowledge over’ – by the time I saw her it was knowledge that was ten years or fifteen years old, that ileal conduits are no longer considered in centres of excellence to be an appropriate operation in reconstructive surgery and that she would be at significant risk of needing to have it done repeatedly over the years. It may not be ten years, it could be less, before she started to get problems.

‘Because you already have renal damage, you have already made stones, so the chances are that you certainly are most unlikely to go twenty years without a problem, it could well be earlier and likely less than ten years. So I, although it is a theoretical possibility, I would strongly advise against any consideration of going back to an ileal conduit.’ I said, ‘The alternative procedure and the type of procedures that are now more frequently performed in an attempt to restore the urinary tract in patients with, in your situation, are what I call urinary undiversion operations.’ …

‘Mrs [L] the principle of the urinary undiversion operation is to create a large storage reservoir for urine which would be in the form of a bladder using bowel, and the concept is you have a storage reservoir for urine that will store urine at a low pressure. And the type of operation that I consider, and I’ve been, and the experience I have gained working with Professor Mundy, has taught me that the right colon is the preferable type of bowel for your type of reconstructive surgery.’ ”

49 Dr Farnsworth said that he drew the colon, explaining it as he did so, and that he gave some further explanation of the surgery he proposed.

50 Dr Farnsworth acknowledged that his own strong preference was for the third option, the urinary undiversion, and it is plain from his account of his explanation to KL that he made no secret of this preference. He said that he outlined what he considered to be the benefits of this procedure, but added:

“…but it does have the disadvantage that you have to catheterise.”

51 His evidence was that he then said:

“But it is complicated surgery, it does carry risks and hazards. I’ve done a number of procedures, I had experience working with the surgeon who is considered a world expert in the area and my recommendation is that you proceed with the urinary undiversion and my advice is too, that the urethral catheterisation is my preference for the surgical treatment. It has the cosmetic advantage but it is also my preferred recommendation. I consider it the preferable one because you get better drainage of your bladder with urethral catheterisation and less problems with incomplete bladder emptying and the potential for infection inside, or mucus.

Mrs [L], this operation does carry potential risks and hazards. It is a major operation, it is a complex operation. It will take six hours at least and there are the usual complications of any major surgery; anaesthetic, wound healing, bleeding. The areas where you have undergone surgery before, like the native bladder, healing may be delayed or incomplete. The initial procedure will involve, the initial phase of the operation will involve removing your old ileal conduit and that will be complicated by the presence of adhesions from previous surgery. So even before I start reconstructing and creating a new bladder, difficult surgery has to occur to get rid of the ileal conduit.

The complications that can occur that are specific to this type of complex surgery are that when you use a segment of bowel there is a risk that it can upset bowel function. In my experience in the patients that I have operated on, I’ve had no patients with a bowel dysfunction afterwards and I have, I consider that the risk of getting a bowel problem afterwards is extremely small and if a problem does occur it is more likely to be diarrhoea, and in the few cases it does occur it is normally easily treated.

‘Mrs [L] one of the specific disadvantages of the type of reconstruction I am recommending is that the most difficult phase is constructing the new urethra. There is no sphincter and the join has to be such that there is no leakage. So the difficulty is to create it snug enough and tight enough so it doesn’t leak and still a channel so you can catheterise. So there is a possibility that you will need further surgery if incontinence occurs after this operation.’”

52 Dr Farnsworth said that he then advised KL to give consideration to what he had told her, and that if she opted for urinary undiversion she would have to make a decision about which method of catheterisation she chose. He added that KL said that she had used a bag all her life and had coped well with it but she welcomed the opportunity of getting rid of it and anticipated an improvement in her lifestyle without it. Dr Farnsworth again denied having said to KL:

“Your ureters need replacing as they are badly damaged by scar tissue and have blockages in them.”

53 He repeated that such a statement was factually incorrect and that he did not make it.

54 KL’s account of the conversations was put, in detail, to Dr Farnsworth who commented upon the accuracy of what she said. He denied saying that he would “fashion new ureters out of intestine”, saying it was not conceivable that he would have said so, in part because KL had healthy ureters which needed to be resited.

55 Dr Farnsworth was able to explain what, in some cases, appears to be a misunderstanding on the part of KL. The references to her ureters provide a good example of this. KL believed that Dr Farnsworth had told her that her ureters needed replacing; Dr Farnsworth made it plain that the ureters did not need replacing, they needed reimplanting into the neo bladder. It is hardly surprising that such misunderstandings occurred, and in these respects Dr Farnsworth’s evidence is to be preferred to that of KL.

56 Another example concerns the references to self catheterising. KL believed that Dr Farnsworth told her that the surgery would make her continent, that a small plastic catheter would be inserted into the new neo bladder two or three times a day to empty it, and that this was a painless and simple method which obviated the need to use the bag, which was apparent to nobody, and was performed in the privacy of a toilet. Of this, Dr Farnsworth said it was “a far too simplified version” to be accurate. However, in the explanation which followed in his evidence, there is not a great deal that seriously departs from KL’s version. He did explicitly deny having described the process of catheterisation as “painless”. He agreed that he had described the difference between the two methods of catheterisation as “cosmetic”, but said that he had, and expressed, a preference for urethral catheterisation.

57 Dr Farnsworth was cross-examined about his manner of giving evidence. He did not accept that it denoted a reconstruction of events by reference to his usual practice or what he expected he would have done and said and maintained that his repeated use of the words “I would have …” or words to similar effect, were more a manner of speech than indicative of absence of an actual recollection of the words used, and that he should be understood to have been recounting his actual recollection of conversations. I find this difficult to accept. In my opinion it is most unlikely that, without being asked to do so for several years, Dr Farnsworth was able to recall the actual terms of the conversation he had with KL. This is so notwithstanding that Dr Farnsworth was discussing quite rare surgery that he would not frequently be called upon to discuss or explain. It is, in my opinion, far more likely that the use of the words “I would have …” truly represent a reconstruction on Dr Farnsworth’s part, and that his evidence was drawn from his usual practices. This does not, in any significant way, diminish the value of his evidence.

58 It was also plain, from Dr Farnsworth’s evidence, that he held a very strong preference for urinary undiversion over reconstruction of the ileal conduit and that he communicated this in his discussions with KL.

59 A statement made by Dr Farnsworth for the purposes of instructing his legal representatives, and made shortly before the end of March 2000, became exhibit M. At the time he made the statement Dr Farnsworth was aware that KL alleged that he had failed adequately to advise her about the possible risks or complications of the surgery he recommended. In that statement Dr Farnsworth wrote:

“15. I discussed the risks associated with urinary undiversion. I said that the proposed surgery is probably the most complex surgery performed on the urinary tract. I indicated that the type of congenital anomaly Mrs [L] had was one of the most complex encountered in urology. I explained that very few doctors perform urinary undiversions. I explained that it was not a commonly performed operation, given that only three to four children are born in New South Wales each year with a congenital condition which may require the operation. I set out my experience. I explained that she suffered from the most complex anomaly. I informed Mrs [L] that hundreds of children in Victoria and South Australia with spina bifida had had urinary diversions and had subsequently required urinary undiversions. I noted that while this surgery was relatively complex it was usually successful. I said I had performed several urinary undiversions on spina bifida patients which were successful.

16. The risks included tissue scarring, reduced blood supply, delayed or improper healing, wound breakdown, fistula (incomplete) healing. I referred to the complications associated with the use of bowel in urology, that is the possibility of malignancy but I said that this was a small chance provided there was no mix of urine and faeces.

17. I referred to the small risk of altered bowel function due to the removal of bowel but that it was my experience in most cases where this does occur, the alteration (usually diarrhoea) is normally relatively easy to treat.

18. I explained that undertaking a urinary undiversion may result in the need for further procedures due to the nature of the tissues and the associated risk of incomplete healing and wound breakdown for which further surgery is required to repair. I indicated that it is incredibly rare to perform this type of operation without complication.

19. …

20. Mrs [L] was informed that self catheterisation takes time to learn but that she would eventually be able to self catheterise. I did not advise Mrs [L] that catheterisation would be painless. I expressed confidence in the ability of the specially trained catheterising staff to assist Mrs [L] to learn to self catheterise. I explained to Mrs [L] that the surgery would reduce the risk of kidney infections as her urine was draining into a low pressure system. I said that she may still get infections in her urinary tract but that these would not reach her kidneys and cause further kidney damage.

21. I did not discuss with Mrs [L] the possibility that she would not be able to self catheterise. Mrs [L] was not advised that the neo urethra could be obstructed preventing intermittent catheterising. I had not previously had a patient experience this problem nor been aware of it being reported in the literature.

22. …

23. I advised Mrs [L] that she may still be incontinent after the procedure and, if so, I would need to tighten up the urethra. I did not advise Mrs [L] that there was a risk that she would be permanently incontinent. In my opinion there was always a fallback position of recreating a stoma and wearing a bag to overcome incontinence.

24. I explained to Mrs [L] that if the surgery was unsuccessful she could revert back to wearing a bag, but that she would be in a better position as her urine would be draining into a low pressure system and therefore the risk of kidney damage was minimised. I explained that if this option was required the neo bladder would be attached to her abdominal wall and a bag attached.”

60 In his oral evidence in chief Dr Farnsworth recounted that aspect of the conversation as follows:

“Mrs [L], one of the specific disadvantages of the type of reconstruction I am recommending is that the most difficult phase is constructing the new urethra. There is no sphincter and the join has to be such that there is no leakage. So the difficulty is to create it snug enough and tight enough so it doesn’t leak and still a channel so you can catheterise. So there is a possibility that you will need further surgery if incontinence occurs after this operation.”

61 In her statement KL recounted that part of the conversation in which possible incontinence was mentioned in the following way:

“42 Dr Farnsworth said words to me to the effect of:

‘Occasionally you might not be fully continent after the first operation. You may leak a little, but a small operation procedure will fix this and tighten you up and it is very low maintenance from then on.’”

62 She essentially confirmed this in her evidence in chief. In cross-examination it was put to KL that Dr Farnsworth had said:

“You might not be totally continent the first time and a further operation to tighten it up might be necessary.”

“I might have a mild incontinence and a small procedure would correct that six weeks after.”

63 She acknowledged that, whatever precise words had been used by Dr Farnsworth, she was well aware after the conversation with him that the principal surgery might not immediately result in complete continence but was told that subsidiary surgery could and would remedy that.

64 There was some dispute about whether Dr Farnsworth had told her that this subsequent surgery would be six weeks or six months later but this never became an issue of significance.

65 One discrepancy that may be of some significance between the evidence of KL and that of Dr Farnsworth concerns whether Dr Farnsworth described the possible subsequent surgery as “minor”. KL asserted that he did; Dr Farnsworth denied that, saying that his practice at the time was, if she proved to be incontinent, to investigate the causes of the incontinence. He would not have speculated in advance on what would become necessary as a result of the incontinence.

* * *

I have already set out the various specific respects in which it is contended on behalf of KL that Dr Farnsworth failed to give adequate information which would have been material to her decision.

the risk of diarrhoea

what was in fact said?

66 The competing versions of what Dr Farnsworth said to KL specifically about the risk of diarrhoea resulting from urinary undiversion surgery may be set side by side. Dr Farnsworth asserts, in his statement, that he said:

“I referred to the small risk of altered bowel function due to the removal of bowel but that it was my experience in most cases where this does occur, the alteration (usually diarrhoea) is normally relatively easy to treat.”

67 In cross-examination KL emphatically denied that Dr Farnsworth had spoken to her in these terms, as indeed she had done in chief. In evidence in chief she said:

“I was never told that there was a risk of diarrhoea …”

68 In oral evidence Dr Farnsworth asserted that he said:

“The complications that can occur that are specific to this type of complex surgery are that when you use a segment of bowel there is a risk that it can upset bowel functions. In my experience in the patients that I have operated on, I’ve had no patients with a bowel dysfunction afterwards and I have, I consider that the risk of getting a bowel problem afterwards is extremely small and if a problem does occur it is more likely to be diarrhoea, and in the few cases it does occur it is normally easily treated.”

69 This evidence having been given after KL’s evidence had concluded, the precise terms of what Dr Farnsworth said in oral evidence were not put to her, but those terms do not differ markedly from the contents of his written statement, which was expressly put to KL and emphatically denied by her.

70 It is of some interest that Dr Farnsworth gave no evidence that he compared the diarrhoea risk from urinary undiversion with any diarrhoea risk that would have arisen from a reconstruction of the ileal conduit. He does not suggest that he at any stage compared the risk of diarrhoea from that surgery with the risk of diarrhoea from urinary undiversion.

71 It is difficult to resolve this factual collision. Both parties had committed their recollections of the conversations to writing, but not until years after the events. Each was firmly committed to his or her version of events. While it must be recognised that each had an equal and personal interest in presenting an account of the conversations favourable to his/her case, and an obvious reason to manipulate the truth, I did not form the impression that either was doing other than giving an account of the conversations as they were recalled (on KL’s part) or partly recalled and partly reconstructed (Dr Farnsworth’s part). From observing the parties give oral evidence I was quite unable to come to a view about whose evidence is likely to be more accurate. That judgment must be made by factors other than demeanour.

72 In the end, and without a great deal of conviction, I conclude that Dr Farnsworth’s account is more likely to be accurate. But this finding advances his case little. Even on his own account, what he said about the risk of diarrhoea from urinary undiversion could hardly be described as highlighting a significant potential problem. It seems to have been mentioned by Dr Farnsworth almost in passing. In these circumstances, it is hardly surprising that it made little (or no) impact on KL and that she could not recall it. (The same reasoning would produce a conclusion that, the matter being of obviously little significance in Dr Farnsworth’s mind, he may not have made the reference he now believes he made. It is for this reason that I have reached the factual conclusion I have with little real conviction.)

73 If it be the case that the urinary undiversion procedure carried a greater risk of diarrhoea than reconstruction of the ileal conduit, then, on the principle laid down in Rogers v Whitaker, it was incumbent on Dr Farnsworth to draw that circumstance to KL’s attention (together with all other relevant factors) to enable her to make a fully informed decision. In my opinion, the almost cursory way in which Dr Farnsworth claims to have raised the matter may have been inadequate – but that depends upon whether it is indeed the fact that the one procedure involves a greater risk than the other. That in itself is not an uncontroversial question.

which surgery carried the greater risk of diarrhoea?

74 As a result of the need, in either procedure, to use section of the small bowel, either operation carried a risk of a change in bowel habit. So much was uncontroversial. It is KL’s case that the urinary undiversion which was performed carried a greater risk of diarrhoea than did a reconstruction of the ileal conduit, and that Dr Farnsworth should have warned her, in terms which would enable her to make a reasoned and informed decision, of the nature and degree of the risk involved. The first fact to be ascertained is whether it is correct to say that the urinary undiversion procedure carried a significant risk of diarrhoea, and a greater risk than reconstruction of the ileal conduit. The evidence of this was given by Dr Farnsworth himself; Dr Christopher Vickers, a gastroenterologist called in the defence case; and Dr David Winkle, a consultant urologist who is KL’s current treating urological specialist. Dr Farnsworth rejected the proposition put to him in cross-examination to the effect that the urinary undiversion process necessarily created a greater risk of diarrhoea than a repetition of the ileal conduit. He said that the recreation of the ileal conduit itself increased the risk of diarrhoea. In his opinion the processes involved in the reconstruction of the ileal conduit, and taking more of the terminal ileum, of themselves increased the risk of developing bile salt diarrhoea. He said that the use of the bowel did carry a risk of diarrhoea but that in his experience the risk was small. In re-examination he said that his understanding at the time of his conversation with KL, which remained his understanding at the time of giving evidence, was that surgical removal of the right colon as he performed on KL would offer an incidence of post-operative diarrhoea comparable with that offered by refashioning a new ileal conduit, and that the risk was very small. Subsequent reconstruction of the ileal conduit (which other evidence established to be a probability every decade or so) progressively increased the risk.

75 Dr Vickers was qualified on behalf of Dr Farnsworth to express an expert opinion. Prior to the trial he was asked a series of questions to which he responded in a report dated 18 May 2001 (exhibit 31). In question 3 Dr Vickers was asked:

“Do the two options of surgery (replacement of the ileal conduit versus the undiversion procedure) carry a risk of diarrhoea and whether those risks are different.” (sic)

76 His written response was as follows:

“Both options would carry a risk of diarrhoea as both forms of surgery require a resection of a piece of ileum of approximately 15 cm. [In oral evidence Dr Vickers explained that this was a reference to surgery of this kind on an infant.] With the additional nature of an undiversion procedure incorporating the right colon into a neo bladder construction it is likely, but by no means definite, that the risk of diarrhoea may be increased. I am personally not aware of any studies that have compared the diarrhoea or frequency of both forms of surgery or whether the problem persisted into the long term after colonic adaption (sic) was likely to have developed.”

77 In his evidence in chief Dr Vickers stated his opinion (which he had previously expressed) that the diarrhoea from which KL suffered was probably bile salts diarrhoea. He said it was very difficult to say with certainty whether this was caused by the resection of the colon (which was necessary only for the urinary undiversion) or the resection of ileum (which would have been necessary had the ileal conduit been replaced).

78 He said, however, that resection of the colon is a very common operation performed in cancer patients but that diarrhoea was not normally presented as a permanent chronic problem in these cases. His opinion was that the consequences of reconstruction of the ileal conduit in KL as an adult would have been more dramatic than the consequences as a child because to construct an adult’s ileal conduit it would be necessary to use about 60 to 80 cm of the ileum and this could seriously compromise her absorption of vitamin B12 (which can be corrected) and also seriously compromise the absorption of bile salts (which cannot be corrected). The impact would be increasingly severe diarrhoea which may require life long medication to control it. KL would always have had fat soluble malabsorption in the upper intestine. Dr Vickers was challenged about his assessment of the need to use 60 to 80 cm of ileum but maintained that, while the actual length to be used is a matter for the surgeon and to be made at the time the surgery is taking place, that text books consistently suggested that that length was necessary. When asked directly in cross-examination whether an undiversion procedure, compared with ileal conduit replacement, carried a greater risk of diarrhoea, he replied that the risk of diarrhoea is probably increased if two ileum sections are performed and then added:

“The risk of diarrhoea, I think, would be more increased if you had two ileum sections as opposed to one ileal and one colonic because you have lost more absorption of your bile acids. Not only does the effect of the bile acids give you bile acid diarrhoea, but you also mal-absorb your bile acids, not recirculate.”

79 Dr Winkle also expressed an opinion on this subject, initially in a report dated 28 January 1999. (exhibit C-56, p 3.) In this report Dr Winkle wrote:

“Mrs [L] certainly does have problems in relation to her gastro-intestinal tract. These problems may well relate to having a short gut and lacking some of the terminal ileum. Mrs [L]’s original ileal conduit would have used some of her small bowel and the further surgery in 1995 would have used more of that small bowel. In general terms however I would not have thought that the amount of small bowel used for this surgery would be enough to cause a mal-absorption problem. In many circumstances much more small bowel than this is used and those people do not seem to have problems associated with chronic diarrhoea. According to the operation notes, only six inches of terminal ileum was used and I don’t think that this would normally be expected to have much effect on bowel function, although reabsorption of bile salts may be affected by surgery in this area.”

80 In a later report, dated 21 March 2001, (exhibit C-59, p 3) he wrote:

“[K] has had two operations where a segment of ileum has been used as part of her urinary diversion. As you note the first operation was when [K] was five years of age and the second operation was in 1995. Fifteen cm of ileum was used in the latter procedure and one would presume that a similar amount was used in the original procedure when [K] was five. As you have noted in paragraph 6.4 the terminal ileum is a segment of bowel, which is required for enterohepatic circulation of bile salts and for vitamin B12 absorptions. The two gastroenterologists, namely Dr Shaughan Terry and Dr Peter Boyd have concluded that [K]’s diarrhoea is due to bile salt mal-absorption and Dr Boyd noted in a letter dated 18.02.99 that ‘this has been made worse by the fact that a substantial amount of her colon was removed for one of her bladder surgeries.’

Possible further evidence of a problem in terms of ileal function is the mild B12 mal-absorption noted in a Schillings test performed in 1997.

If [K] had opted for an ileal conduit as a replacement for her previous ileal conduit then ileum would certainly have been used, although one would tend to use ileum 15 to 20 cm away from the ileocecale valve in an effort to preserve that absorptive function of the terminal ileum. I cannot say with any certainty that if more proximal ileum had been used that [K] would have no gastro-intestinal upset but if a simple conduit had been performed then overall, a lot less bowel would have been used and the ileocecal valve would have been preserved. It would seem logical that a greater absorptive area and a slower transit time would then lessen the likelihood of diarrhoea.”

81 In examination in chief Dr Winkle was asked about what he would advise a patient in KL’s position about the risk of diarrhoea. He replied:

“I think the fact that this person had had one segment of small bowel removed and another one was being removed would increase her risk of diarrhoea and other problems associated with B12 deficiencies. So I would think I would mention that, yes.”

82 He explained that vitamin B12 is absorbed from the distal part of the ileum and the less distal ileum there is the less absorption of vitamin B12 occurs. Thus, the more of that intestine is used, the less the absorption of vitamin B12, and the more likely that supplementation at a later stage would be necessary. Later again, in answer to another question, Dr Winkle said:

“I think the problems associated with using such a large piece of bowel for reconstruction in terms of a gut anastomose have to be discussed and the issue of problems associated with having a neo bladder, a new bladder, are one set of problems, and then the problems associated with how to drain that neo bladder and achieve continence are another set of issues.”

83 When asked directly about the comparable risks of the two procedures (concerning diarrhoea) Dr Winkle said that it was his view that:

“Where the greater bowel is used there is more likely to be problems even though it is a slightly different section of bowel that is used.”

84 He said this was because the right colon is used for the reconstruction and the purpose of the right colon (or the caecum) is to absorb water and without it the ability to absorb fluids is reduced. One consequence of this is an increased risk of diarrhoea although such an outcome is by no means certain. It follows from what Dr Winkle said that the procedure that uses the greatest amount of intestine is the procedure that exposes the patient to the greater risk of diarrhoea. In cross-examination a series of propositions were put to Dr Winkle. These were propositions that emerged from the evidence and, to a large extent, have already been set out. It may, however, be helpful to restate them. Dr Winkle agreed that the ileum is the last portion of the small intestine, that the terminal ileum is the last 40 or 50 cms of the ileum, that the terminal ileum is important for the absorption of bile salts, that loss of terminal ileum can be associated with diarrhoea of the form known as bile salt diarrhoea, that bile salt diarrhoea is attributable to an inadequate absorption of bile salts, that part of KL’s terminal ileum had been used in her original surgery at the age of five, that had a reconstruction of the ileal conduit been performed in 1995 it would have required the use of more of the terminal ileum, that the urinary undiversion which Dr Farnsworth performed required the use of only about 15 cm of the terminal ileum, that the diarrhoea from which KL now suffers is attributable to a combination of the loss of ileum and the loss of ascending colon, and that it was possible that,had she had a reconstructed ileal conduit, it would have been necessary to remove more of the terminal ileum than the 15 cm that was used for the undiversion (although he added that large amounts of the terminal ileum were not necessary for an ileal conduit). Dr Winkle, however, would not agree that the use of the terminal ileum would have significantly altered the diarrhoea KL suffers. He maintained that this was the result of the combination of the use of bowel and ileum. He did agree that ileal conduit surgery itself created an increased risk of diarrhoea, and that the need to repeat the operation every decade or so would have involved an increased risk of diarrhoea over time.

* * *

conclusions: risk of diarrhoea

It seems to me that the medical opinion on this issue can be encapsulated as follows:

Dr Farnsworth believed that the greater risk of diarrhoea was associated with a repetition of the ileal conduit surgery.

Dr Vickers believed that a greater risk existed in relation to urinary undiversion; but, where ileal conduit surgery is performed on an adult, because of the increased quantity of bowel used, there is a greater risk than when the surgery is performed on a child; and that a greater risk is associated with a second or later ileal conduit.

Dr Winkle believed that ileal conduit surgery carried less risk of diarrhoea than urinary undiversion.

It is therefore necessary to choose between three experts, each of whom is, in respect of his expertise, unimpeachable.

85 In considering this question I have concluded that Dr Farnsworth’s opinion is to be accorded less weight than the opinions of the other two medical practitioners. This is not intended to reflect upon his general credibility, but is a view I have formed because Dr Farnsworth was, as he acknowledged, so firmly committed to his preferred option, the urinary undiversion, as to colour his view of the strengths and weaknesses of the two forms of surgery. Dr Vickers’ opinion, as I have interpreted and summarised it, does not come to grips with the real point at issue and is not easy to understand. It is Dr Winkle’s evidence that is here to be accorded the greatest weight. He clearly addressed the question; and as KL’s present treating urologist he could be expected to have a greater familiarity with the particular circumstances of her case than had Dr Vickers. I therefore accept that the greater risk of diarrhoea associated with urinary undiversion surgery was a matter that should have been fully explained to KL. I adhere to the view earlier expressed that the caution that was given was given in a cursory way; most probably, in my view, because of Dr Farnsworth’s unswerving commitment to what he saw as the better course.

86 My conclusion therefore is that Dr Farnsworth failed adequately to explain to KL the prospect that undergoing urinary undiversion surgery carried with it a risk of diarrhoea, that risk being greater than the similar risk associated with reconstruction of the ileal conduit.

* * *

incontinence

87 The next matter which KL contends that Dr Farnsworth failed adequately to explain to her concerned the likelihood of incontinence following the surgery that she underwent. Again, it is necessary first to make a finding of fact about what was in fact said to KL by Dr Farnsworth, and, secondly, to determine whether the risk of incontinence following urinary undiversion surgery was significantly greater than a similar risk in ileal conduit surgery; and, thirdly, to determine whether Dr Farnsworth’s advice to KL was adequate in the circumstances.

88 In his statement (exhibit M) Dr Farnsworth wrote:

“23 I advised Mrs [L] that she may still be incontinent after the procedure and, if so, I would need to tighten up the urethra. I did not advise Mrs [L] that there was a risk that she would be permanently incontinent. In my opinion there was always a fallback condition of recreating a stoma and wearing a bag to overcome incontinence.

24 I explained to Mrs [L] that if the surgery was unsuccessful she could revert to wearing a bag, but that she would be in a better position than her current position as her urine would be draining into a low pressure system and therefore the risk of kidney damage was minimised. I explained that if this option was required the neo bladder would be attached to her abdominal wall and a bag attached.”

89 Dr Farnsworth was asked about this in detail in re-examination. Referring to urinary undiversion, Dr Farnsworth said:

“Well, my assessment of achieving continence first time around in Mrs [L] would be significantly higher than achieving continence in a male. I thought that she would have had a less than 10% chance of being incontinent afterwards, and my assessment was that in that eventuality there would be an extremely high success rate of correcting that with the next procedure.

When I am offering a patient a success rate chance on a particular operation it is easier to offer that when you have all the information available in terms of how tight it needs to be made, etc, but in general terms I would have thought that there would be a 95% success rate with the second procedure.”

90 That urinary incontinence was a recognised potential complication of urinary undiversion was never in doubt. Dr Winkle was unable to say whether KL’s incontinence following the surgery was related to a congenital abnormality or to the treatment. That is not, in any event, the principal issue here: that is concerned with the extent of the risk and whether Dr Farnsworth’s caution to KL was adequate. In oral evidence he reiterated that achieving continence is a difficult aspect of surgery. In the same context, he estimated the risk of further surgery (following urinary undiversion, in general) as “30% perhaps”. Reliance was placed on behalf of KL on this figure as representing the percentage chance of further surgery attributable to incontinence, but, in my opinion, the explanation Dr Farnsworth gave immediately after (referring to gastro-intestinal problems, adhesion problems) suggests that the figure represented a broader area of possible complications.

91 Dr Farnsworth, in re-examination, said that in his assessment KL was exposed to a less than 10% chance of being incontinent after the surgery, and that, even if that eventuated, the prospects of correction with further surgery were extremely good – as good as 95%. He contrasted this with the 100% chance that she would need further surgery following ileal conduit surgery, but this was, in my view, a little disingenuous. Dr Farnsworth had never advanced the proposition that further surgery following ileal conduit would be a likelihood, or even a possibility, in less than ten years. It was always part of his case that ileal conduit revision surgery would, in all probability, be required every decade or so. The present issue concerns the likelihood of the need for immediate or, at least, short term, post-operative surgery.

92 On the evidence it is not possible, in my view, with any accuracy, to quantify the risk of temporary, remedial incontinence following the surgery. It is plain enough that that risk existed, and that it was not trivial or insubstantial. Of this much KL clearly was warned, and aware. However, it was not in issue that the known potential complication of incontinence was also relatively easily remedied. What is not established on the evidence is that there was a known risk (that is, one of which Dr Farnsworth must or ought to have known, and therefore to have drawn to KL’s attention) of an ongoing incontinence problem. Yet it is of the failure to warn of just such an ongoing incontinence problem that KL now complains. The fundamental premise – that a risk of ongoing incontinence existed, and was known prior to the surgery to exist – is not established. It follows that the evidence also does not establish that Dr Farnsworth should have warned KL of such a risk – or at least should have given a more comprehensive warning than the one he did. No complaint is made of the terms in which he warned her of the risk that is established on the evidence – that the initial operation might not achieve continence, but that a subsequent repair operation could be expected to do so.

further surgery

93 On behalf of KL it was also put that Dr Farnsworth failed to warn her that urinary undiversion carried a risk of the need for further and/or repeated surgery, separate from the potential failure of continence mechanisms. Certainly, in the event, KL has had to undergo repeated follow up surgery.

94 What is absent, however, is evidence that the failure of the surgery was a known risk of which KL ought to have been advised by Dr Farnsworth. There is simply no evidence that complications (other than a small risk of diarrhoea and a possible temporary and easily remediable incontinence) that might interfere with the efficacy of the surgery and give rise to problems of the sort in fact experienced by KL should have been anticipated by Dr Farnsworth.

95 What is suggested on behalf of KL is that Dr Farnsworth ought, in some unspecified way, to have warned her that the surgery might not be successful, and might expose her to the prospect of remedial or ameliorative surgery, that being to remedy or ameliorate some complication or complications not foreseen or foreseeable.

96 Further, in the particular circumstances of this case, for KL to succeed on this argument it would be necessary that she establish that a comparable risk did not exist in relation to the option of revision of the ileal conduit. That is because, in reality, the decision KL had to make was not whether or not to undergo surgery (as is generally the case where a plaintiff alleges failure to warn) but which of two forms of surgery to elect. What she had to do, on the basis of information provided to her, was to choose between the two. In order to make the necessary evaluation she needed to have available to her a comprehensive picture of the advantages and disadvantages of each.

97 The claim that KL was not adequately warned of the risk that, following urinary undiversion surgery, she might have to undergo “further and/or repeated surgery” must be rejected.

self catheterisation

98 A necessary consequence of urinary undiversion surgery was that KL would have to self catheterise. Dr Farnsworth told her that there were two alternative modes of performing this, and that “the differences are only cosmetic”: that is, that neither had any particular medical advantage over the other. The complaint made on behalf of KL in this respect is two-fold. Firstly, she complains that Dr Farnsworth failed to warn her that there was a risk (which in fact eventuated) that she would be unable to self catheterise; and that, had she been warned of this risk, she would have opted for an ileal conduit instead. Further, by amendment to the statement of claim which KL was given leave to make on the second day of the trial, she also asserted that Dr Farnsworth had:

“failed to convey to [her] the ramifications of the use of the catheter and how this would affect [her] day to day activity.”

99 What KL asserts in this respect is that Dr Farnsworth failed to explain adequately to her what was, in practical terms, involved in self catheterisation; and, again, she asserts that had she been fully informed she would have elected the alternative procedure.

100 The evidence concerning potential inability to self catheterise is, to say the least, scanty. Dr Farnsworth’s evidence in this regard was really given principally as part of his account of what he had told KL in the pre-surgery discussions. He was asked in his evidence in chief:

“Do you have a recollection as to whether or not you referred to any experience you had had with patients being unable to self catheterise?”

101 To this he replied:

“I certainly had had experience with patients having difficulty with intermittent catheterisation after complex reconstructive surgery when new urethras were made. One patient specifically had difficulties, but he was a male and the male urethra, when reconstructed in a patient with exstrophy, is extremely tortuous. It is reconstructed from three different segments of tissue. The capacity and size of the channel varies, so intermittent – any form of catheterisation in a male with exstrophy of that vintage, not the type of surgery we do now but of that vintage, can be difficult due to the tortuosity, and we certainly had a male patient who prior to Mrs [L] had the identical operation, conceptually the same operation, who went through a phase of difficulty learning how to get the catheter in.”

102 Dr Farnsworth said that that patient was ultimately able to learn to self catheterise and was still doing so several years later.

103 In cross-examination, but in answer to questions also directed to what he had, and what he should have, told KL, Dr Farnsworth said:

“Well, that is where the difficulty lies, in that there is no simple technique of showing her what is involved, in terms of a trial of catheterisation, to see how you can cope with it, to see if it is a technique you can master, because the anatomy is not there for her to have a trial of it first. …

My attempts to explain it were more along the lines that, although difficulty can occur with catheterisation, it is principally with the males. As I acknowledged, I had not reconstructed a female urethra before. But my advice, from the world’s expert in this area, was that it was a significantly simpler procedure for both the surgeon to achieve it and the patient to be able to catheterise in a female, in this situation, than a male…

I told her that it is a technique, catheterisation, that some women, as I judged her to be, who was motivated, intelligent, and committed to that, she would achieve self catheterisation with the back up situation that our department had to offer her.”

104 A little later it was put to Dr Farnsworth that it was a relatively common occurrence for women to abandon attempts at self catheterisation, but his answer was that in his experience, while it did occur on occasions, it was uncommon. He was not convinced that it was more common for women to give up attempts at self catheterisation than for men to do so. His experience, he said, was that the number of women who abandon the attempt “are relatively few”.

105 Dr Winkle was asked about this subject in correspondence from KL’s solicitors. In his report dated 10 April 2000 he set out a question he had been asked by those solicitors. It was in these terms:

“7. Do you agree with the authors’ description of general complications on p 456? I gather than [K] had some problems with accessing the catheterisable stoma. Are these complications that she could have expected in any event if she had urinary diversion (sic) to a catheterisable soma (sic)?”

106 The reference to “the authors’ description of general complications on p 456” appears to be a reference to a publication by “Carroll and Barbour” earlier referred to in the correspondence. It may be inferred that this was some form of journal publication by medical practitioners, a copy of which the solicitors sent to Dr Winkle. However, although Dr Winkle, in his reply, enclosed a different article by different authors (Mitchell C Benson, MD and Carl A Olsson MD, entitled “Continent Urinary Diversion”) the publication by “Carroll and Barbour” is not in evidence. Their “description of general complications” is similarly not in evidence. In any event, Dr Winkle replied in the following way:

“Some complications in relation to this surgery are mentioned in the paragraphs that you nominate but there are many complications both general and specific that can occur following such major surgery. [K]’s difficulty in accessing her neo bladder via her urethra related to tortuosity of the neo urethra. [K] also had problems in relation to continence of that neo urethra. Both these difficulties are potential difficulties, which may have occurred if a catheterisable stoma had been used in the first instance.”

107 I have concluded that the evidence, particularly that given by Dr Farnsworth himself, does establish that an inability to self catheterise was a potential outcome of the surgery and that it should, therefore, have been drawn to KL’s attention. It is therefore necessary to consider what Dr Farnsworth did tell KL about this. In his statement (exhibit M) Dr Farnsworth wrote:

“20. Mrs [L] was informed that self catheterisation takes time to learn but that she would eventually be able to self catheterise. I did not advise Mrs [L] that catheterisation would be painless. I expressed confidence in the ability of the specially trained catheterising staff to assist Mrs [L] to learn to self catheterise. I explained to Mrs [L] that the surgery would reduce the risk of kidney infection as her urine was draining into a low pressure system. I said that she may still get infections in her urinary tract but that these would not reach her kidneys and cause further kidney damage.

21. I did not discuss with Mrs [L] the possibility that she would not be able to self catheterise. Mrs [L] was not advised that the neo urethra could be obstructed presenting (sic – ? preventing) intermittent catheterisation. I had not previously had a patient experience this problem nor been aware of it being reported in the literature.

22. Another patient of mine took two months to learn to self catheterise and this patient also experienced pain initially. He continues to self catheterise years later.”

108 In his evidence in chief Dr Farnsworth recounted the conversation with KL on this aspect. He said that KL told him she had not heard of catheterisation for this type of situation to which he replied:

“‘Mrs [L], there’s been, since 1975, for many years at least, for many years at least, there has been a trend towards intermittent catheterisation as a method of, preferable method of protecting the urinary tract and emptying the bladder, be it the native bladder or our own one or a new one, and it won’t empty spontaneously.’ … ‘This type of bladder we will create will not empty spontaneously, it has to be emptied by catheter.

have the disadvantage that you will have to catheterise

109 A little later, still in his evidence in chief, Dr Farnsworth was asked whether he had any recollection as to whether he had referred to previous experience with patients being unable to self catheterise. He replied in the terms previously extracted. He went on to say, again referring to what he had said to KL:

“‘Mrs [L], I don’t anticipate you having a significant problem with self catheterising, as with the female the urethra is much shorter and it should be a straighter channel, and although there may be difficulties initially I have confidence in both your ability to do it and our specialised staff being able to train you how to do it.’”

110 He confirmed that he had been enormously impressed by KL’s ability to cope with her difficult medical situation and with the adverse circumstances of her condition; by her positive attitude, her enthusiasm, and the procedure offered her to improve her quality of life. He considered her to be intelligent and capable and had confidence in her ability to learn to catheterise.

111 Dr Farnsworth’s evidence in this respect was largely consistent with that of KL. In her statement (exhibit D) KL said that she had asked what self catheterising was to which Dr Farnsworth replied in words to the effect of:

“That is the next option I am giving you. We form a neo bladder from the existing bladder and the new ureters will lead from the kidneys into the new neo bladder instead of the urine running straight into a bag. You are made continent and a small plastic catheter is inserted into the neo bladder two or three times a day to empty it. This is a painless and simple method which gets rid of the bag and no one can tell you are doing this as it is performed sitting on a toilet and only takes a few minutes. Also it has the advantage of not showing through any clothing or swimwear. If you choose the self catheterising method there are sisters at Prince Henry Hospital whose job it is just to teach people how to catheterise and you will be taught by them after my surgery. There are two methods of catheterising and you will have to decide which one you want if you choose this option. The first method is through the stomach. A small stoma is made and a couple of times during the day you insert a small catheter into the stoma while sitting on the toilet and empty your bladder. The second option is having no stoma and catheterising urethrally which means you insert the catheter into the bladder by the urethra and you do not have a stoma on your stomach…

I have performed hundreds of undiversions where I have got rid of the bag and converted people to catheterising. Many people with spina bifida and paraplegia used to have ileostomies but most people with spina bifida have been converted successfully and paraplegics now are not given a bag but self catheterise.”

112 KL confirmed this account in oral evidence. She was not cross-examined to suggest that her recollection of this part of the conversation was in any significant way faulty.

113 As with the references to the possibility that KL would suffer from diarrhoea following urinary undiversion surgery, I have come to the view that Dr Farnsworth did not make adequate disclosure to KL about the possibility that she would be unable to self catheterise. Again, I am satisfied that Dr Farnsworth glossed over the disadvantages of urinary undiversion because of his conviction that this was the preferable course. It will be necessary later to consider the consequences of this conclusion.

114 That leads to the second limb of KL’s complaint about what Dr Farnsworth told her about self catheterisation. I have already referred to the evidence of what Dr Farnsworth in fact said. The second part of the complaint is that Dr Farnsworth failed to give KL a clear picture of what would be required of her, and what her life would be, if she were to opt for the procedure that involved self catheterisation. This was on the assumption that she was able to self catheterise. The starting point of what is in fact involved is exhibit E on which heavy reliance was placed on behalf of KL. Exhibit E is a handout, a four page document provided to patients of Prince Henry Hospital who undergo catheterisation training. It is headed “Clean Intermittent Catheterisation – A Guide for Female Patients”. On the first page are some introductory remarks, pointing out, inter alia, the importance of regularly emptying the bladder, that the technique of “clean, intermittent self catheterisation” is easy to learn and has certain identified benefits. That section concluded with the words:

“Most people find that catheterisation four times a day is ideal.”

115 Four necessary items of equipment were then identified. These are special glass catheters, “wet ones” or baby wipes, a receptacle for urine collection, and a bag for rubbish.

116 On the second page there is a diagram of the relevant anatomical portion, followed by nine points of procedure. On the next page six items under the heading “Care of Equipment” are listed followed by five “Points to Watch”. On the last page is a section headed “Care of a Urethral Catheter with Leg Bag”.

117 KL said, and it was not contested, that she was not given a copy of this document until after the surgery had been performed.

118 In relation to this evidence KL was subjected to a most searching cross-examination. She said that if she had known “what was involved in self catheterisation” she would have elected to have a revision of the ileal conduit rather than urinary undiversion. She was asked to explain what she meant by “everything that was involved” in self catheterisation and said that even the contents of exhibit E would have been enough to deter her from the course she took. She said the self catheterisation procedure did not suit her life style because she worked 70 – 80 hours a week, played sport and had outings with her family, but that her need to self catheterise meant that she “lived in” public toilets. She said that because it was necessary for the procedure to be clean she had to wash her hands thoroughly and carry additional equipment with her and that if she forgot it she was “in trouble”. She said she did not like the thought of performing the procedure in a public toilet. She said that the procedure in a public toilet was inconvenient because of the lack of facilities for placing the equipment, and that the main problem was the lack of hygiene and facilities in public toilets. As well as this, when she was visiting friends, it was always necessary for her to take a handbag to the bathroom with her and that this was not something about which she could be as discreet as she had been with the ileal conduit.

119 Later in the cross-examination KL was further pressed on this evidence. She was asked if there were any matters other than those mentioned in exhibit E which, if she had known of them, would have influenced her against urinary undiversion and in favour of ileal conduit surgery. She again referred to the inconvenience of having to take her equipment with her everywhere she went, and having to take a handbag, and the embarrassment of having to take it into the toilet even when visiting friends. She did agree, when it was put to her, that, by a process of inference, she must have known that it would be necessary for her always to carry her catheter with her.

120 Ultimately, it seemed to me, that KL’s complaint was encapsulated in this answer:

“Dr Farnsworth conveyed it to me in a very casual manner. You go into the bathroom, you pop a catheter into your urethra, you drain your bladder and that’s it.”

121 She then added that the constant urine infections were also a factor.

122 The subject was raised yet again when KL was asked what it was that she found so shocking about the procedure. She gave an answer which included an account of the attempts made at catheterisation by the nursing staff in early 1996 but progressed to this:

“When I went to the sisters and they explained the procedure to me, how it doesn’t have to be sterile but it has to be a very clean procedure and I read exactly what it entailed [in exhibit E] and the cleanliness and the amount of times I would actually have to go per day that was – I was angry and upset at that stage I just thought, you know, what have I got ahead of me.”

123 In answer to a further question she said it was the need for cleanliness that worried and concerned her because she was unsure how she would keep her hands germ free “in modern day society”, given that she spent most of her day away from home. She then expanded, describing the procedure thus:

“Go and wash your hands, get out the baby wipes. You’ve got to try and juggle them on your legs. You’ve got the baby wipes here. You’ve got the catheter here in some sort of container. You’ve got the lubricant. So, you’ve got to try and juggle the lubricant in one hand, catheter in the other then you’ve got to try and balance. You don’t want to put your handbag on the ground. It was just the whole procedure. I know thousands of people have it and I know it suits thousands of people but it was just, ‘how am I going to manage with this?’”

124 She also said that the frequency with which she would have to self catheterise troubled her; that Dr Farnsworth had told her that she would need to catheterise two to three times a day but that exhibit E suggested that she would have to do so “every three or four hours”. She said that came as quite a surprise to her. Of course, exhibit E did not state that it would be necessary to catheterise with the frequency stated by KL. Exhibit E was shown to KL and she accepted that there was not a great difference between a frequency of two or three times a day, as she said had been suggested to her by Dr Farnsworth, and “ideal” frequency of four times a day as suggested in exhibit E.

125 KL then referred to the equipment it was necessary for her to use, and her distaste for the procedure as it had been taught to her in the hospital. She contrasted catheterisation as described in exhibit E and in terms of her own experience, which was very different, more difficult and more painful. She again described the embarrassment and inconvenience of using the equipment in public toilets and the difficulty of handling the glass catheters and washing them in public toilets, and finally, a matter she acknowledged was “just laziness”, the inconvenience of having to boil the catheters twice a week.

126 What seemed to be a disproportionate amount of time was devoted to the question of self catheterisation, but I do not think it is fair to characterise KL’s objections to the procedure as trivial or unrealistic, as, it seemed to me, the tone of the cross-examination suggested. The fact is that, over her lifetime she had accustomed herself to the procedures associated with the bag and the ileal conduit, and had managed these without undue inconvenience, frustration or embarrassment. I do not think it is unrealistic for KL to have been surprised and unhappy at the very different and more demanding procedures associated with self catheterisation. I think she is justified in complaining that she was given inadequate information about what self catheterisation would mean in terms of her daily routine.

127 This was not a “risk” in the sense in which that word is used in Chappel v Hart and Rogers v Whitaker. But it is a circumstance that is material to the very important decision KL had to make and one which may well have affected her decision had she been fully informed.

recurrent urinary tract infections

128 The risk of recurrent urinary tract infections also was a consequence, not directly of the surgery, but of self catheterisation. It was, however, acknowledged by Dr Farnsworth, and by his counsel, as a potential consequence of the procedure he recommended. Indeed, in his statement (exhibit M), in recounting the explanation he gave KL, Dr Farnsworth adverted to possible urinary tract infections, but this in the context of kidney damage, which was less likely in the case of urinary undiversion than in the case of ileal conduit.

129 No case in relation to the possibility of recurrent urinary tract infections was advanced on behalf of KL with any force. In written submissions it was referred to as a separate matter, but it is, in my view, properly to be seen as one of the consequences of the need for self catheterisation. Moreover, counsel for KL acknowledged that the possibility of such infections was balanced by a recognised decrease in the risk of kidney infections following urinary undiversion compared with ileal conduit. In any event, it is reasonably clear that Dr Farnsworth did mention the possibility of urinary tract infections. I do not think there was any deficiency in what he told KL about this.

mucus formation

130 A similar approach was taken to what seemed to me to be something of a peripheral issue identified as mucus formation. Again, this was put on the basis that mucus formation could be expected as part of the construction of KL’s new bladder from bowel but that this was less likely to constitute a practical problem if (as occurred) KL opted for urethral catheterisation. Mucus formation in the event became a problem because of KL’s inability to self catheterise urethrally.

131 As it happened, and as a result of the difficulties KL experienced with self catheterisation, mucus formation did become a significant problem. KL said that she first became aware of it about five days after surgery. The mucus formation prevented proper drainage of the catheter. Since her discharge from hospital it has meant that she has needed to return home for self catheterising purposes, rather than using public or other toilets. She has had to take medication to deal with the problem.

132 I did not understand counsel for KL to be putting a proposition that there was any relevant failure by Dr Farnsworth to warn KL that mucus formation might be an adverse consequence of the surgery he recommended or that this constituted a separate particular of breach of duty. Rather, it was one of a number of matters associated with self catheterisation which, if she had been aware of it, would have been a material factor in her decision making process. It was, nevertheless, a significant disadvantage of the procedure of which KL was unaware at the time she made her decision to opt for urinary undiversion. I am satisfied that the possibility (and consequences) of mucus formation was part of the overall picture of which KL should have been, but was not, informed.

* * *

133 What follows from the conclusions I have stated above? I am satisfied that, in a number of material respects, KL was not given complete information such as to enable her to make an informed choice. I am satisfied that Dr Farnsworth was so convinced himself that the optimum procedure for KL was urinary undiversion that he glossed over the disadvantages of that procedure and any benefits associated with ileal conduit.

134 I have not the slightest doubt that Dr Farnsworth acted with the best intentions, and in what he perceived as KL’s best interests. But the overriding theme of cases such as Chappel v Hart and Rogers v Whitaker is patient autonomy: patients are in control of their own lives, and even if they are not best placed, objectively, to decide on whether or not to undergo a particular form of surgery or other medical treatment, they nevertheless have the right to be placed in a position which enables them to make an informed decision. Such a decision is based only in part on the medical issues on which, plainly, the medical practitioner has a significant advantage: another important aspect of the decision is the impact the particular surgery or treatment will have upon the particular patient’s life: this, in turn, depends upon an intimate knowledge of the patient’s lifestyle, what is important to him or her, the strengths and weaknesses of the patient in coping with particular kinds of adversity. This the patient is best placed to know. He or she is to be put, so far as possible, in possession of sufficient information about the proposed procedure to make an informed decision having regard to the likely impact on his or her life.

135 In many, if not most, cases that decision will be simply a choice of undergoing, or not undergoing, surgery, or accepting or not accepting a particular form of treatment. That is not the present case, but the principles are no different. I accept that the task the law imposed on Dr Farnsworth was not an easy one: it was to give KL fair and accurate objective information about the relative merits and demerits of the two forms of surgery.

136 As I have indicated above, I have concluded that Dr Farnsworth allowed his own very strong preference for urinary undiversion to stand in the way of his giving a fair assessment of the two procedures to KL.

137 I am conscious that Dr Farnsworth was at some pains to explain to KL technically what he proposed to do. What he did not do was stand the two operations side by side and give KL a clear picture of the two procedures and, more importantly, what each might in practical and real terms mean for KL. Some further support for this conclusion is to be gained for this view by a reference to evidence given by KL. On two occasions she said that Dr Farnsworth had asked her what decision she had made to which she replied that she had opted for urethral catheterisation. This evidence was certainly not given in a manner that bespoke artifice, or an intention or attempt to strengthen her case; but it did suggest that the focus of her attention, so far as matters on which she had to make a choice were concerned, was on the manner in which she would self catheterise. This, in turn, suggests that what was, in reality, the real and substantial matter of election (the nature of the surgery) was presented to her as a matter of no real choice at all. As I have indicated above, I think that Dr Farnsworth was so committed to his preferred option that he omitted to give a full and clear picture of the competing merits of the two to KL. I find strong support for this in an answer given by Dr Farnsworth in cross-examination. Dr Farnsworth said:

“I certainly had no intention of recommending or supporting any wish that Mrs [L] may have expressed, which she didn’t express, to go back to an ileal conduit with an awareness of the current medical knowledge then and now that there is an incredibly high risk of progressive renal damage if you express (sic – ? expose) the patient to that operation. So I didn’t consider the medical option to go back to uretero ileostomy. I raised that in terms to her, but in terms of my doing that operation it wouldn’t have been a procedure I would have been happy to perform.”

138 Breach of duty is therefore established.

* * *

139 That, of course, does not conclude the matter. The next task is to determine, so far as it can be done, what course KL would have taken had she been given a comprehensive picture. This involves not only a consideration of the risks and disadvantages associated with urinary undiversion (whether drawn to KL’s attention or not) but also an evaluation of the risks and disadvantages associated with ileal conduit (again, whether or not these were drawn to KL’s attention). The final step in considering this question is to determine what should have been drawn to KL’s attention in full discharge of the duty.

140 Not a great deal of attention was focussed on what disadvantages were associated with ileal conduit. However, two very significant matters are apparent. The first has been referred to a number of times already – that, if she opted for ileal conduit surgery, KL would have been faced with repeat surgery at ten year intervals; and, further, that as the years progressed there would be increasing difficulty in obtaining the necessary tissue to enable this to be done.

141 The second significant disadvantage was the possibility of kidney damage. It was common ground that the option of ileal conduit carried with it a greater risk of progressive kidney damage than did urinary undiversion. The dispute concerned the extent of that risk. The principal evidence in this respect was given by Dr Farnsworth when recounting the conversations he claimed to have had with KL. He said that he told her that, if ileal conduit surgery was performed, complications increased significantly after ten years or thereabouts and they carried with them the risk of progressive infection and progressive kidney damage.

142 Dr Winkle was cross-examined on the same subject matter. His evidence was not altogether easy to follow but he appears to have thought that, relative to an ileal conduit, urinary undiversion offered greater kidney protection. He agreed that progressive kidney damage is a consequence of repeated kidney infections and that progressive kidney damage in turn has an (adverse) impact on life expectancy. Finally, he said that ileal conduits carry a slightly greater, not huge, risk of progressive kidney damage than urinary undiversion.

143 It would not be correct, nor fair, to consider which of the two alternative operations KL would have chosen by reference only to the disadvantages or potential risks of one. In considering this question it is necessary to hypothesise that, in giving KL a full and fair picture of the risks and potential consequences of urinary undiversion, Dr Farnsworth also gave the same kind of information in relation to ileal conduit surgery. This necessarily entails that, while drawing to her attention possible diarrhoea, possible short term incontinence, and a need for further surgery, and all that was involved in catheterisation, (as a possible result of urinary undiversion) he also pointed out that ileal conduit surgery would have necessitated revision every ten years, and a slightly greater risk of progressive kidney damage.

144 On the hypothesis that Dr Farnsworth had given that information to KL, what course would she have taken? Since the parties did not approach the matter in precisely this manner, she was not asked that hypothetical question and there is no direct evidence of what she would have done. As I have already observed, direct evidence on such a matter is, in any event, fraught with danger and is to be treated with some caution. There was evidence of what KL would have done if she had known of some of the possible consequences of urinary undiversion, and, in some cases, of the actual outcome.

145 For example, she was asked, in evidence in chief:

“If you had been told that even if there was a risk of permanent incontinence the problem could subsequently be solved by the recreation of a stoma and wearing a bag to overcome that incontinence, would you have gone ahead with the procedure in those circumstances?”

146 KL answered that she would not have done so.

147 The question and answer are, of course, founded on a premise (that there was a foreseeable risk of permanent incontinence) that I have found is not established on the evidence. Indeed, when analysed, the question contains an internal inconsistency – that is, that “permanent incontinence” could be rectified. However, the subsequent answer, given in response to a question asking why she would not have undergone urinary undiversion, is of some value. KL said:

“It’s more surgery and it gives doubts. If I was offered a choice to be catheterised but you might be incontinent so then we will give you back a bag it meant it is obvious then that there could be complications, and it is also – why would you choose more surgery? It sounds experimental – OK, we will do this but you could be incontinent, but if you are we will give you a bag again. I would have just opted for a bag. I coped with it, managed with it, I was married with children. I didn’t really have to get rid of the bag. Like there was no reason for it, except I did think it would be nice not to have one for a change. But I certainly wouldn’t choose that way when the outcome was going to be incontinence or several surgeries.”

148 KL was then asked to direct her attention, not to what “the outcome was going to be …”, but to what her decision would have been if she had known that there was a risk of incontinence. She answered:

“I wanted – risks, I am not prepared to take risks with medical things and with my body. I don’t like being in hospital and I don’t like being sick.”

149 Similarly, KL was asked whether she would have considered the possibility of mucus formation as a factor relevant to the decision she had to make. She answered:

“It would have made a big impact on my decision, because it affects your whole lifestyle … it is not something I would elect to put myself through, or even risk, having happen to my body.”

150 On the question of self catheterisation, when asked a question of a similar kind, KL replied:

“… had I have known what self catheterisation involved, it definitely would have made me consider my answer, a big difference in my answer. A large difference in my answer. I would have considered it deeply.”

151 She was then asked what decision she would have made in those circumstances and replied:

“No, I would not have elected for self catheterisation, if I had known the procedure involved.”

152 While I do not doubt KL’s sincerity in giving these answers, there are a number of problems with them. Firstly, they all have the wisdom of hindsight. Secondly, they are based upon a knowledge of the actual sequelae of the surgery, as distinct from a knowledge of the reasonably foreseeable risks and consequences of the surgery; as far as the evidence goes there is considerable divergence between the two. Thirdly, neither the questions nor the answers take into account the reasonably foreseeable risks and consequences of ileal conduit surgery. There is no doubt that, assuming KL was put in possession of a complete picture of both forms of surgery, she would have been faced with a very difficult decision indeed. Two of the answers already extracted (in which KL stated her aversion to further surgery and her dislike of illness) would suggest that, even knowing of the reasonably foreseeable risks and consequences of urinary undiversion surgery, KL would nevertheless have opted for that course rather than revision of the ileal conduit, having in mind the undisputed likelihood that it would require repeat surgery at approximately ten year intervals, and the risk of kidney damage and reduced life expectancy.

153 It may also be safely assumed that Dr Farnsworth would have strongly urged her to elect urinary undiversion. Provided he had given her a clear and comprehensive account of the potential consequences of the two procedures, there is no reason why he should not have done so. I consider it likely that KL would have paid careful attention to Dr Farnsworth’s advice, particularly as it would have been supported by concrete reasoning concerning the disadvantages of ileal conduit revision.

154 I accept without question that, if KL had been put into possession of a crystal ball that foretold her actual post surgery experiences, she would not have opted for urinary undiversion. But that is not the correct question. The question is what she would have done had the reasonably foreseeable risks and consequences been explained to her – the reasonably foreseeable risks and consequences of both forms of surgery.

155 In my opinion the case advanced on behalf of KL merges two concepts. It seizes on the duty Dr Farnsworth undoubtedly had, (and, in my view, failed adequately to discharge) to ensure that KL had a clear understanding of the relative risks, those that were reasonably foreseeable, of the two procedures; and the actual outcome for KL which was significantly worse than, on the evidence, could reasonably have been anticipated. KL’s case assumes that, because certain risks and consequences of urinary undiversion were not properly explained to KL, that a proper discharge of the duty to give information would have depicted the graphic and almost tragic outcome of the surgery. This is false reasoning.

156 I have come to the conclusion that, if Dr Farnsworth had told KL, dispassionately and clearly, that there was some risk of bowel dysfunction (which really meant diarrhoea), but that it would not be expected to be permanent or long lived, that there was some risk of short term incontinence, and had given her an accurate picture of what self-catheterisation would mean to her, together with a reminder that ileal conduit surgery had two significant disadvantages – the need for ten year repeats, and the risk of kidney damage – KL would have accepted his advice to opt for the former.

157 In reaching these conclusions, I have had in mind, inter alia, that one of KL’s major post surgery problems has been the drastic interference with her bowel habits. I have already held that this one of the matters on which Dr Farnsworth should have, but did not adequately, advise KL. However, in considering what response KL might have made to that advice, it is necessary to bear in mind that Dr Farnsworth’s duty was to warn her, not of wholly unexpected and extreme consequences, but of consequences of a kind and to the extent that were reasonably foreseeable. In this respect Dr Winkle’s evidence does not assist KL. In his report of 10 April 2000 (ex E – 57) he wrote:

“I think that any discussion involving bladder reconstruction using part of the gastro-intestinal tract would include mention of the possibility of the disturbance of the function of the gastro-intestinal tract. In an adult with a normal gastro-intestinal tract one would have to say that this possibility is a fairly low risk.”

158 If Dr Farnsworth had warned KL in terms such as these, I do not think that that would have deterred her from the course she chose. It was not Dr Farnsworth’s duty to anticipate a complication of the magnitude of that which, regrettably, befell KL. There was no evidence that would support a conclusion that what in fact KL experienced was reasonably foreseeable. What was reasonably foreseeable was significantly less (on the evidence) than that which in fact occurred. This is, as I have indicated, relevant to the assessment of what KL would have done if put in a position of complete information.

159 Reasoning of the same kind applies to what gave rise to the other significant complication. This was KL’s inability to self catheterise. While there is, as I have held, evidence that encountering difficulties with self catheterisation was a potential complication, and that Dr Farnsworth did not bring this clearly enough to her attention, again, it seems to me, the difficulties KL experienced were much greater than those that were reasonably foreseeable. In other words, if Dr Farnsworth had explained to KL that she may encounter some such difficulty, in terms that properly reflected what was reasonably foreseeable (as distinct from what in fact eventuated) she would not have regarded that as outweighing the significant disadvantages associated with ileal conduit surgery.

160 In this respect also it is worth noting that Dr Winkle, in answering a question put to him in writing concerning catheterisation, volunteered:

161 This obviously also applies to ileal conduit surgery which, it was common ground, is also major surgery.

162 This leads to a further difficulty in KL’s path. Her case is, in reality, predicated upon a premise that, had she opted for ileal conduit surgery, her path would have been free of complications. That is plainly not an assumption that is warranted. As Dr Winkle noted, major surgery carries with it potential for complications and it would not be right to assume that that potential would be realised in relation to the course chosen, but would not have been realised had the alternative course been chosen. No attention was directed to establishing what complications (other than ten year revisions and kidney damage) could have resulted from ileal conduit surgery, but the remark by Dr Winkle establishes what would, in any event, be a matter of common sense.

163 The conclusion I have reached is really a conclusion that KL has failed to establish any causal connection between the breach of duty I have found established and the damage suffered by her.

164 The result is that there must be a verdict for the defendant.

165 I have considered whether I should, notwithstanding that conclusion, move to an assessment of damages against the prospect of a successful appeal by KL. I have concluded that, to do so at this stage, would be an uneconomic use of the scarce judicial time. Should there be a successful appeal, resulting in a verdict for KL, it would be possible for the matter to be returned to me for an assessment of damages.

166 There will be a verdict for the defendant. Subject to any additional matter that may be raised, I order KL to pay Dr Farnsworth’s costs. For that purpose, I grant liberty to apply on seven days’ notice.

**********

Last Modified: 05/09/2002

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Citations

KL v Farnsworth [2002] NSWSC 382

Most Recent Citation

Richards v Rahilly [2005] NSWSC 352

Cases Citing This Decision

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Richards v Rahilly [2005] NSWSC 352

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Rosenberg v Percival [2001] HCA 18

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CITATION:	KL v Farnsworth [2002] NSWSC 382
FILE NUMBER(S):	SC 20441/98
HEARING DATE(S):	19/11/2001 20/11/2001 21/11/2001 22/11/2001 23/11/2001 26/11/2001 27/11/2001 28/11/2001 29/11/2001 7/12/2001
JUDGMENT DATE:	9 May 2002
PARTIES :	KL - Plaintiff Dr Robert H Farnsworth - Defendant
JUDGMENT OF:	Simpson J

COUNSEL :	P Menzies QC - Plaintiff P Brereton SC - Defendant
SOLICITORS:	David Hirsch - Plaintiff John Pavlakis - Defendant
CATCHWORDS:	risks and possible consequences of medical procedures - adequate information - duty to warn of reasonably foreseeable consequences - breach of duty - competing advantages and disadvantages - alternative forms of surgery - causation
CASES CITED:	Rosenberg v Percival [2001] HCA 18, 75 ALRJ 734 Rogers v Whitaker (1992) 175 CLR 479 S v R (1983) 33 SASR 189 Chappel v Hart [1998] HCA55; 195 CLR 232
DECISION:	Verdict for the defendant.