Knight v Stocken

[2002] NSWSC 1161

CITATION:	Knight v Stocken [2002] NSWSC 1161
FILE NUMBER(S):	SC 20738/94
HEARING DATE(S):	11 - 15, 18 - 20 November 2002
JUDGMENT DATE:	6 December 2002
PARTIES :	Catherine Knight - Plaintiff Dr Robert Stocken - Defendant
JUDGMENT OF:	Simpson J

COUNSEL :	I Ryan - Plaintiff SR Donaldson SC - Defendant
SOLICITORS:	James Papas & Associates - Plaintiff Blake Dawson Waldron - Defendant
CATCHWORDS:	professional negligence - discharge of duty of care - information about potential risks - laparoscopic sterilisation - personal injury - classification of risk as "material" - nature and cause of present condition - expert medical opinions - failure to warn
CASES CITED:	Rogers v Whitaker (1992) 175 CLR 479 Chappel v Hart [1998] HCA 55; 195 CLR 232 Rosenberg v Percival [2001] HCA 18; 205 CLR 434
DECISION:	Verdict for the defendant.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
PROFESSIONAL NEGLIGENCE LIST

SIMPSON J

6 December 2002

20738/94 Catherine Jody KNIGHT v Robert STOCKEN

JUDGMENT

1 HER HONOUR: In these proceedings the plaintiff, Catherine Jody Knight, claims damages against the defendant, Dr Robert Stocken (a specialist obstetrician and gynaecologist), arising out of medical treatment that she alleges was negligently administered by him in October 1991. The plaintiff also sues in contract, but no additional issues arise thereby.

2 The factual issues are relatively complex. The plaintiff was born on 2 August 1966. She married in 1989 and had two children, born, respectively, in 1989 and 1991. After the birth of their second child, the plaintiff and her husband decided that they required permanent contraception. After consultation with their general practitioner, Dr Robert Florida, they were referred to the defendant. On 10 October 1991 the defendant performed a laparoscopic tubal ligation at the Hornsby and Ku-Ring-Gai Hospital.

3 The plaintiff alleges that the defendant failed to administer the treatment with the requisite care and skill, and, accordingly, failed to discharge the duty of care which he undoubtedly owed to her. She does not allege that the surgery itself was carried out negligently. Although the breaches of duty alleged are particularised in a variety of ways, the allegations essentially break down into two principal categories. First, the plaintiff alleges that the defendant failed to give her adequate information about the potential risks of the procedure, thus precluding her from being in a position to make an informed decision as to whether to undergo the surgery; that recognised risks of that procedure eventuated causing personal injury; and that, if she had been given full and accurate information, she would not have submitted to the procedure. Symptoms which she now suffers, which, on her case, are a consequence of the treatment, are thus causally connected to the alleged failure to give adequate information.

4 Second, the plaintiff alleges that a complication (a recognised risk of the procedure) occurred during or immediately after the surgery; that this was mismanaged by the defendant; and that, as a result of the mismanagement, she suffered personal injury.

5 A number of factual matters arise for resolution, requiring expansion of the short outline of facts given above.

6 The plaintiff was twenty-five years of age at the time of the surgery. Until then, she had been generally in good health. Relevantly, however, she had suffered right-sided abdominal pain in January 1990. For this she was referred to the defendant, who performed a diagnostic laparoscopy, which revealed no abnormality. In December 1990 and in February and March 1991 she suffered some pain in the right pelvis and hip.

7 The plaintiff attended the defendant in respect of the proposed tubal ligation initially in September 1991. It is well recognised that the surgery is of a kind that can, without fault on the part of the surgeon, cause damage to certain arteries, and that this can cause bleeding, including the development of a haematoma in the abdominal wall. At its worst, such an outcome may necessitate additional surgery. Although the risk, so far as the evidence discloses, is relatively small, and its consequences relatively easily remediable, the fact that further surgery is a possible consequence is sufficient, in my view, to warrant the classification of the risk as “material”: see Rogers v Whitaker (1992) 175 CLR 479; Chappel v Hart [1998] HCA 55; 195 CLR 232; and Rosenberg v Percival [2001] HCA 18; 205 CLR 434.

8 It is, accordingly, incumbent upon a surgeon advising a patient considering undergoing such surgery to inform her of that risk, the extent of the risk, and the possible consequences if the risk eventuates.

9 The plaintiff was admitted to the Hornsby and Ku-Ring-Gai Hospital early on the morning of 10 October 1991. She signed a printed proforma of consent to the surgery, which included the following:

“I have received all information sought by me concerning care and all questions asked by me concerning the proposed operation and other procedures and all questions asked have been satisfactorily answered.”

10 The form also contained an acknowledgment of consent to the procedure, which was identified as:

“dilation and curettage of uterus, laparoscopic tubal occlusion with clips”,

followed by the words:

“the effect and nature of which have been explained to me by Dr Skarbek …”

11 The name “Skarbek” was handwritten into a blank in this sentence, which was otherwise part of the printed document, and the plaintiff’s signature was shown to have been witnessed by “Skarbek”, which was also handwritten onto the form. “Skarbek” was said to have the designation “intern”. The description of the procedure was also handwritten into the pro-forma.

12 The procedure of laparoscopic sterilisation involves the making of two incisions into or around the abdomen. A sharply pointed surgical instrument (a “trocar”) is inserted into one of the incisions, for the purpose of removing fluids from the cavity.

13 Because the insertion is “blind”, there is always a risk of damage to blood vessels, most specifically the inferior and superficial epigastric arteries. This, in turn, can cause bleeding and give rise to a haematoma. This was the recognised risk of which the plaintiff claims the defendant should have warned her but did not.

14 The surgery was performed at about 8.30 a.m. The plaintiff awoke in the recovery room at about 9.30 a.m. She was experiencing pain concentrated in the right side of the groin at about the site of the lower incision. Nursing staff examined her, and told her that she had developed a haematoma and, according to the plaintiff, that she may have to return to theatre for drainage. The nurses contacted the defendant, who examined the plaintiff at about 10.00 a.m. Before his arrival the plaintiff made her own observations. In her evidence she said:

“I felt that I looked like I was about five months pregnant.”

15 A Dr Jefferis discussed pain relief with the nursing staff, presumably having spoken to the plaintiff. (This information is derived only from the nursing notes.)

16 When he examined the swelling the defendant directed that an ice pack be placed upon the plaintiff’s abdomen and this was done. Thereafter the plaintiff was from time to time reviewed by nurses (who recorded their observations in nursing notes) and was removed from the recovery ward to the outpatients’ section. She was again reviewed by the defendant at about 10.55 a.m. At that time he determined that further surgery was not required. The plaintiff was discharged at about 4.00 p.m. when her husband, by arrangement, came to collect her. She said that she was unable to walk and was taken to the car in a wheelchair and assisted by her husband. This appears to be in conflict with the nursing notes which state that, at 4.00 p.m. her condition was “satisfactory” and she was “ambulant”.

17 On arrival at home, the plaintiff went straight to bed. Again, she needed the assistance of her husband. For some days she continued to require the physical assistance of her husband or other family members for such basic things as showering, using the toilet, and so on. She was feverish and suffered dizzy spells when she stood upright. On one occasion when she was showering, her right leg appeared to be blue, and became very cold. This recurred from time to time over the next three years.

18 On 14 October Dr Florida attended her at home. He recorded “an acute febrile illness following her tubal ligation” and observed the haematoma. Dr Florida’s next record is of a consultation on 20 October, in respect of a urinary tract infection. There is no record of any continuing problems with the haematoma. Thereafter there is no record of any consultation until 19 July.

19 The plaintiff’s evidence was that over the next six months, she experienced difficulty in coping, for example in looking after her children, doing laundry, and shopping. She was experiencing pain, although at this point in her evidence she was never very specific about the location or the nature of the pain. Over a two year period she had intermittent pain on strenuous activity, and during sexual intercourse.

20 In early January 1993 the plaintiff returned to the workforce, as a part-time kitchen hand at a fish markets restaurant. She found the work fairly exhausting. She remained in this employment until May 1993, when it came to an end, and took up the same kind of work in another restaurant. She found this work exacerbated her pain and she ceased work. She has not held paid employment since. She has sought the assistance of the Commonwealth Rehabilitation Service but without positive result.

21 Eventually, in November 1993, the plaintiff consulted Dr Florida about the pain she was experiencing. She said in evidence that she had not done so sooner because the defendant had told her that she could expect pain following the tubal ligation for “quite some time” afterwards. Dr Florida gave her an injection for pain relief which was effective for some hours, after which the pain returned. The plaintiff was then referred by Dr Florida to Dr Penelope Savvas, a rheumatologist, and subsequently to Dr Elizabeth McCusker, a consultant neurologist.

22 The plaintiff continued to experience pain; her right leg intermittently became “cold and tingly, as in pins and needles type sensation”, and she had shooting pains in the leg until Tegretol was prescribed. She said that the scar site – that is, the site of one of the incisions – had always been the most prominent point of pain. The pain has increased to such an extent that she cannot tolerate even wearing underclothing.

23 In April 1995 the plaintiff and her husband separated. In June the plaintiff moved to Queensland, as did her husband. After a time the children, who had been in the care of the plaintiff, went to live with their father, where they remained until recently. At the time of hearing the children had returned to live with the plaintiff. She had become depressed about her condition and there was one incident, in January 1998, when her frustration so overcame her that she began hitting the walls and window of the caravan in which she was living. She broke the window and severely lacerated her right wrist.

24 She began seeing Dr Charles Elliot, a general practitioner at the Pomona Medical Centre. In early 2000 Dr Elliot referred her to Dr George Fielding, a general surgeon. Dr Fielding diagnosed:

“a localised neuroma probably involving a little nerve in the inguinal canal underneath the port scar. …”

“the port scar” being the site of one of the incisions made during the tubal ligation.

25 Dr Fielding injected her with Depo Medrol and Marcaine, with excellent short term pain relief. However, the pain returned, and in June Dr Fielding performed an operation during which he divided the ilio-inguinal nerve. This, again, produced excellent results which were somewhat longer lasting. However, despite the significant improvement, the plaintiff continues to suffer a considerable disability and recurrent pain. This was apparent when she gave evidence. She is on regular medication and uses a TENS machine.

26 The plaintiff relates all of her current problems to the surgery performed by the defendant in October 1991. Two distinct questions of causation arise. One is whether, assuming that the plaintiff is able to show that the defendant failed to give her adequate information about possible complications of the surgery, that failure is causally related to her present condition. The answer to that question depends upon a further question of fact: if properly advised, would the plaintiff have declined to undergo the surgery? If not, there can be no causal connection between the failure properly to advise and the symptoms the plaintiff now experiences. The other question of causation is whether the plaintiff has shown that the symptoms she now suffers and has for some time suffered are a result of the surgery. It is convenient to deal with the latter question first. In order to do so, it is of some importance to ascertain, to the extent that it is possible, the precise nature and aetiology of the plaintiff’s present symptoms.

27 Unfortunately there is no unanimity amongst the medical practitioners as to the nature or cause of the plaintiff’s condition.

28 Dr Penelope Savvas is the consulting rheumatologist to whom the plaintiff was referred by Dr Florida on 17 November 1993. In a report dated 14 December 1993 Dr Savvas, having seen the plaintiff on 1 and 14 December, came to the view:

“that she may well have an entrapment neuropathy of the obturator nerve possibly related to the previous surgery that she has had.”

29 In her first report to Dr Florida, dated 19 November 1993, Dr Savvas referred to the history of the tubal ligation, also noting that the plaintiff had:

“had a marked retroperitoneal bleed with a large abdominal haematoma and increased abdominal girth for some time.”

30 Dr Savvas was not called to give oral evidence and was not cross-examined on her diagnosis. What is of some significance is that, in her first report, Dr Savvas wrote:

“This [the haematoma] caused significant venous engorgement in the right leg. She has since had intermittent pain in the right thigh and right groin.”

However, this was immediately followed by:

“Three weeks ago she developed sudden increasing tenderness and pain in the right groin which she could not attribute to any injury.”

Dr Savvas then thought that the plaintiff probably:

“had a severe groin strain”.

31 It may reasonably be inferred that Dr Savvas was dependent, essentially, upon the history given to her by the plaintiff, and possibly, information provided to her by Dr Florida. No letter of referral by Dr Florida was in evidence.

32 The plaintiff was then referred to Dr Elizabeth McCusker, a consultant neurologist, in February 1994. In a report apparently written at the request of the plaintiff’s solicitors, on 28 February 2000, Dr McCusker described the plaintiff’s condition as “consistent with injury to the right ilio-inguinal nerve”.

33 It seems reasonably plain that Dr McCusker also related the plaintiff’s symptoms to the 1991 surgery. She referred to that surgery, and the plaintiff’s description of its sequelae, in the history she recounted earlier in the report. Dr McCusker’s earlier reports were written in her capacity as a treating specialist and were directed to the referring general practitioner, Dr Danielle Florida who practises in partnership with her father, Dr Robert Florida. In the first report, dated 17 February 1994, the date of her first consultation with the plaintiff, Dr McCusker also referred to the October 1991 tubal ligation which, she noted:

“was complicated by a ? retroperitoneal bleed and septicaemia.”

She also noted that the plaintiff had been worse since 4 November 1993 when she attempted to return to work.

34 By April 1994 Dr McCusker was considering the possibility that the plaintiff had a neuroma. In September of that year she appears to have come to the view that the cause of the symptoms was “nerve [unidentified] entrapment” and that this was a sequelae of “resolution of retroperitoneal haemorrhage”.

35 Dr McCusker did give oral evidence. In cross-examination she agreed that she no longer believed that a retroperitoneal haemorrhage was the genesis of the plaintiff’s problems. She maintained the view, which she had not formed before March 2000, that the plaintiff’s pain was associated with damage to the ilio-inguinal nerve. She had long believed that the plaintiff’s problems stemmed from nerve entrapment pain.

36 It is difficult to know what the plaintiff seeks to make of Dr McCusker’s evidence. As I indicated above, the case was not presented on the basis that the defendant had performed the surgery negligently and so there is no basis for concluding, even if the ilio-inguinal nerve had been damaged during surgery, that this occurred by reason of any breach of duty on the defendant’s part. However, Dr McCusker’s evidence is a relevant part of the plaintiff’s general history, and certainly relevant to the question of damages should the plaintiff succeed in her claim.

37 Dr Fielding, the general surgeon whose surgery ultimately afforded the plaintiff such relief as she has had, also took a history that included reference to the tubal ligation and the haematoma as the temporal commencement of the plaintiff’s problems. He thought the plaintiff:

“had a localised neuroma probably involving a little nerve in the inguinal canal underneath the port scar”.

His opinion that the ilio-inguinal nerve was involved appears to have strengthened as a result of the success of his operation. He did not express a view as to how or when the damage to the ilio-inguinal nerve occurred.

38 Dr Diana Jakubowicz, an obstetrician and gynaecologist who examined the plaintiff only for medico-legal purposes, thought that scarring following resolution of the haematoma resulted in nerve entrapment, causing the symptoms. In oral evidence she said that, almost certainly, the haematoma had been caused by injury to the inferior endogastric artery. She was unable to identify which nerve was involved.

39 It is necessary now to review the opinions expressed by medical practitioners qualified on behalf of the defendant. Dr Rushworth, a neurosurgeon, thought the plaintiff’s present symptoms were probably caused by entrapment of the obturator nerve (consistently with the opinion of Dr Savvas) and that the most common cause of this is an obturator hernia. He said this is not caused by retroperitoneal haemorrhage and that neither an obturator hernia, nor entrapment of the obturator nerve, could have been caused by laparoscopic sterilisation.

40 Professor Robert Jansen is a specialist obstetrician and gynaecologist. He did not examine the plaintiff, but was provided by the defendant’s solicitors with documentation in order to qualify him to express an opinion and to respond to certain specific questions put to him. He expressly disclaimed the capacity to judge the accuracy of the neuropathic diagnosis made by Dr Fielding, partly, he said, because the management of pain for neuromas was not his medical specialty, and partly because he had not examined the plaintiff.

41 Professor Jansen provided two reports, the first on 27 September 1996 and the second on 4 February 2002. The latter is of some significance because it postdates Dr Fielding’s surgery. He answered in the negative a question asked of him by the defendant’s solicitors which he reproduced as follows:

“Do I consider that the plaintiff suffers from entrapment of the right genito-femoral and right lateral cutaneous nerve of the thigh … as a result of haematoma formation following the laparoscopy as alleged?”

42 The question is not felicitously framed. The negative answer might be taken to be given to the first part of the question, concerning the diagnosis, or the second part, concerning causation. The rather lengthy explanation that follows the negative answer shows that Professor Jansen was focussing upon that part of the question that concerned the cause of the plaintiff’s problems, and not the diagnosis. He appeared to accept (as he expressly did, relying on the opinions of the plaintiff’s treating specialists, in his subsequent report) that the plaintiff’s problems were neurological.

43 It could not, on this material, be said that Professor Jansen formed or expressed an independent view of the proper diagnosis of the plaintiff’s condition. What he did, assuming the diagnoses of others, was to comment on the asserted causal connection between the condition (however it was characterised) and the surgery carried out by the defendant. I will return to this separate question.

44 The consensus of opinion, as I perceive it, is now that some kind of nerve entrapment is the most likely explanation for the plaintiff’s symptoms. Having regard to the partial success of Dr Fielding’s surgery, and the preponderance of the evidence, I consider, on the balance of probabilities, that the problem lies with the ilio-inguinal nerve. (The evidence did not provide any enlightenment about the location of the obdurator nerve, or its possible relationship to the ilio-inguinal nerve, except that both were illustrated in a diagram which became exhibit E. Some restraint must be exercised in private research and I did not think it appropriate, in the absence of express evidence, to attempt to decipher the illustration, or to examine the degree of difference between the varying opinions.)

45 Acceptance that the nerve that is the cause of the plaintiff’s symptoms is the ilio-inguinal nerve, however, is merely preliminary to the more significant question, which is the cause of the nerve entrapment. (Identification of the nerve is important, of course, if the cause of the entrapment is properly to be understood.) This appears to be the assumption of Dr Robert Lyneham, also an obstetrician and gynaecologist, who reported and gave evidence on behalf of the defendant, and who, unlike Professor Jansen, did examine the plaintiff and also commented upon the reports of other medical practitioners. Like Professor Jansen, Dr Lyneham appears to have been prepared to assume that some form of nerve involvement is the cause of the plaintiff’s symptoms. He, too, focussed upon the probable cause of that nerve involvement, and in particular on whether it could be related to the October 1991 surgery. Except for stating that, after consideration of all of the medical opinions, he favours Dr Fielding’s theory, Dr Lyneham did not direct his attention to identifying the nerve involved.

46 A number of expert witnesses were asked to consider the question of a possible causal relationship to the 1991 surgery. Dr Jakubowicz wrote a report dated 16 May 1995, after examining the plaintiff on 16 February 1995 and subsequently the Hornsby and Kur-Ring-Gai Hospital notes referable to the plaintiff’s admission. Dr Jakubowicz wrote:

“1. The swelling that Mrs Knight had was due to a haematoma formation almost certainly in the retroperitoneal space.”

47 She went on to express the view, referred to above, that the haematoma ultimately caused scarring which in turn resulted in nerve entrapment, and that these were the causes of the symptoms. Dr Lyneham disagreed. He took the view that the haematoma was more likely a consequence of damage to the superficial epigastric artery, and that it resolved, without causing nerve damage of the type postulated by Dr Jakubowicz. He was of the view that the plaintiff’s subsequent and present symptoms were independent of the haematoma, and that there was no causal connection between the surgery, including the haematoma, and the plaintiff’s subsequent painful condition.

48 It is always difficult to assess the opinions of competing expert witnesses. In this case the task was made more than usually difficult. I am bound to disclose that Dr Jakubowicz was as aggressive a witness as I have ever observed, particularly when that consideration is limited to professional witnesses. She was combative, and, it seemed to me, perceived herself to be sparring with counsel who cross-examined her. She sought to score points. On two occasions she told counsel, quite gratuitously, that she thought he was being silly. Her answers were frequently unresponsive. I did not gain the impression that she saw her role as attempting to assist the court to come to the correct result, or to inform the court on matters within her expertise. Rather, she appeared to see herself as advancing or defending a proposition. The extent to which her evidence can be relied upon suffered as a result. That is not solely because of her aggressive manner, but because I concluded that her aggressive manner bespoke an absence of the requisite objectivity which the court relies upon expert witnesses to display. Without that objectivity an expert witness’ credibility is diminished. I have striven to make a fair evaluation of Dr Jakubowicz’s evidence, disregarding the manner in which it was given. I am conscious of her expertise, and that it would be unfair to the plaintiff unduly to discount the evidence of an expert witness called in her case by reason only of a combative manner. This is particularly important because Dr Jakubowicz was the only medical practitioner called in the plaintiff’s case who gave expert opinion evidence that could be said directly to inculpate the defendant in any breach of duty.

49 As I shall subsequently note, Dr Jakubowicz, in important respects, relied heavily upon factual matters told her by the plaintiff and which are the subject of some doubt. This, independently, also casts doubt upon the extent to which I can accept her opinions and conclusions.

50 Although, in an answer only partially responsive to the question she was asked, Dr Jakubowicz said that the description of the pattern of the bruising and the description given by the patient (of what she observed of herself in the recovery ward) was classical of a retroperitoneal haematoma, she, on the whole, resisted cross-examination designed to elucidate her opinion. The following passage in cross-examination is illustrative:

“Q. When you drew the conclusion it was almost certain it was a retroperitoneal bleed, what information did you have available to you?
A. The hospital operating notes.

Q. What did they indicate to you?
A. Nothing, but they were scanty.

Q. The fact is they indicated nothing, indicated nothing untoward?
A. Not necessarily.

Q. Wouldn't you think it likely if the surgeon observed bleeding that would be in the hospital notes?
A. No.

Q. Would you think it more likely than not?
A. Observance of that depends on the experience and skill of the surgeon.

Q. In so far as you had information about that factor it tended to suggest that bleeding was not apparent when the trocar was withdrawn?
A. All I can deduce is that it was not recorded in the notes. It does not mean that the bleeding was or was not there.”

51 To say that the information available to her in the formation of her conclusion consisted of (not included) the hospital notes, and then immediately to say that they indicated nothing and were scanty, is scarcely helpful. The subsequent answers, I thought, demonstrated an obstructive attitude.

52 Dr Lyneham also disagreed with Dr Jakubowicz’s expressed opinion that the resolution of the haematoma resulted in nerve entrapment causing the plaintiff’s symptoms. He said that the natural physiological processes of thrombolysis results in a haematoma being gradually absorbed with all evidence of it disappearing; he was unaware of any described pathological process whereby a haematoma in the subcutaneous or even retroperitoneal tissues results in fibrosis sufficient to produce nerve entrapment and that, on his understanding, such a process “simply does not occur”. Moreover, he said that there was “a substantial anatomical impediment to such a proposed scenario”. On the assumption that the haematoma was due to damage to the superficial epigastric vessels, which, to him, seemed to be the overwhelming conclusion to be drawn from the evidence, he noted that the artery is superficial to the abdominal wall muscle. I take this to mean that Dr Lyneham considered it unlikely that damage to that vessel would have resulted in a retroperitoneal haematoma.

53 Professor Jansen did not believe that the ilio-inguinal nerve:

“was ever in the anatomical field when the operation was carried out”.

He expressed “substantial misgivings” about the ilio-inguinal nerve being damaged by the procedure.

54 On the totality of this evidence I am satisfied that the ilio-inguinal nerve was not severed or otherwise damaged in the surgery. Given my earlier conclusion that the ilio-inguinal nerve is the cause of the present problem, the consequence is, obviously, that the plaintiff has not established a causal connection between the surgery and her symptoms. There are additional circumstances that add weight to that conclusion, and, indeed, independently dictate the same result.

55 As indicated above, Dr Jakubowicz made it plain that, in large part, she based her opinion on information given to her by the plaintiff. In particular she relied upon the plaintiff’s description of the haematoma immediately post surgery as resembling a five month pregnancy. This is simply not borne out by the rather more objective evidence to be derived from the nursing notes. These show that a haematoma was noted at 10.00 a.m. on the right side of the flank and was reviewed by the defendant. There was a note that the plaintiff was to be returned to the operating theatre, to be arranged. However, the subsequent note, at 10.55 a.m., shows that the plaintiff had again been reviewed by the defendant and that further surgery was not required. A note, at 4.00 p.m., which is very difficult to decipher, appears to read:

“Satisfactory. Ambulant. Obsv [? Observed] Tolerating food and fluid … Abdo [?abdomen] wound settled. Haematoma dispersed completely [with] ice pack application.”

56 Objective signs, such as blood pressure and pulse rate, confirmed that the haematoma was not causing any problem.

57 I am satisfied that the plaintiff perceived the haematoma as significantly worse than it in fact was. Indeed, Dr Lyneham said that if there had been a swelling due to bleeding of the size described by the plaintiff “that would be emergency without precedent”.

58 It is inconceivable that a swelling of the kind and size described by the plaintiff would have passed without notice, either by the defendant, by other doctors who examined the plaintiff, or by the nursing staff.

59 These circumstances are of significance because her acceptance of the plaintiff’s description led Dr Jakubowicz to her next controversial conclusion. That was that the plaintiff was prematurely discharged from hospital. It seemed to me that there was some consensus on the evidence, particularly having regard to the answer given by Dr Lyneham to which I have referred above (an “emergency without precedent”), that if the plaintiff’s condition had been as described by her, then discharge on the day of surgery was indeed inappropriate. However, the conclusion depends upon the factual premise, and I have already stated my view that the factual premise has not been established.

60 The plaintiff’s case in respect of the asserted mismanagement is that the defendant should, in all the circumstances, have returned her to surgery (for what is not specified, but I assume for either examination, diagnosis or drainage or other treatment) and not discharged her from hospital, but retained her as an inpatient for observation and diagnosis. Failure to take these steps, on the plaintiff’s case, amounts to a failure in the discharge of the duty of care owed by the defendant to the plaintiff. It is apparent, from the factual conclusions stated above, that the plaintiff has failed to establish that the defendant should, in the proper discharge of his duty to her, have done more than he did. As particularised, the plaintiff’s claim is that the defendant’s duty required that he have her returned to surgery, for the purpose of dealing with the oversized haematoma. Rejection of the plaintiff’s account of the size and nature of the haematoma involves rejection of that proposition. In any event, there was no evidence that further treatment would have prevented nerve entrapment.

61 It follows from what I have written above that the plaintiff has failed to establish that the defendant in any way failed in his duty in treating her post operatively or that any deficiency caused her subsequent problems. Further support for this view is to be derived from the plaintiff’s medical history.

62 Those of the plaintiff’s medical practitioners who, by implication, attributed the plaintiff’s symptoms (however they were specifically diagnosed) to the laparoscopic surgery of October 1991, did so on the basis of histories they had been given that the plaintiff’s relevant symptoms coincided in time with the surgery. That assumption is not supported by the objective evidence. Dr Robert Florida and his daughter Dr Danielle Florida, were, for many years, the plaintiff’s treating general practitioners. The notes retained by the practice were in evidence, although Dr Robert Florida made clear in a report dated 8 August 1999, and in his oral evidence, that not all of the plaintiff’s notes were able to be located. He thought this was because some documents had been the subject of subpoena, and others the subject of requests by other medical practices in Queensland.

63 Even bearing that in mind, the records of the Florida practice illustrate the fallacy in the plaintiff’s presumed history in two respects. Firstly, they show that the plaintiff had a history of pain in and around the right hip and abdomen for some time prior to October 1991, and this is also confirmed by the plaintiff’s own evidence of certain incidents that predated the surgery. Secondly, the notes show that, while the plaintiff consulted, and was visited by, one or other of the doctors Florida in the days following the surgery, and they observed the haematoma, they also show no further complaint of pain in that part of the body until January 1993.

64 Dr Lyneham analysed this pattern and concluded that the plaintiff’s history suggested that the post surgery symptoms she suffered and of which she now complains had begun well before that event and were unrelated to it. I found his analysis persuasive. I am satisfied, therefore, that the plaintiff’s symptoms are unrelated to the surgery.

failure to warn

65 I have already noted the obligation that lies on a medical practitioner to warn a patient of any “material risks” in the procedure contemplated. The obligation is a reflection of current notions of patient autonomy, and the right of a patient to make informed decisions about his or her own future, life and treatment.

66 The plaintiff claims that haematoma is a recognised potential complication of laparoscopic tubal ligation, and that, therefore, the defendant was under a duty to inform her of the risk, and the consequences she could expect should the risk eventuate. I do not understand any part of this proposition to be disputed. What is in dispute in this respect is precisely what the defendant told the plaintiff, and whether that was an adequate discharge of his undoubted obligation. Resolution of the question involves not only a finding of fact about what the defendant actually said, but also a clear analysis of what the recognised “material risks” are, and what they may entail in terms of practical consequences to the patient. A medical practitioner is not obliged to advise a patient of bizarre or unforeseeable consequences. It is essential also to this limb of the plaintiff’s case that had the defendant given her proper and adequate information, she would not have undergone the surgery.

67 The evidence of the plaintiff and that of the defendant diverge somewhat on the issue of just what the defendant did say to the plaintiff.

68 The plaintiff’s evidence was that at the initial consultation the defendant questioned her about her decision not to have more children, and then explained to her the mechanics of the proposed operation. He illustrated this with a diagram. In response to a specific question from the plaintiff and her husband about possible risks, the defendant said:

“the only real risk is with the anaesthetic”,

but added that, as she had previously had an anaesthetic (for the purposes of the January 1990 laparoscopy), this should not cause any problems. He gave her some other information about the hormonal effects of the surgery, which was reassuring. Although she did not say so directly, it was clearly implied in the plaintiff’s evidence in chief that the defendant did not advise her that the operation carried a risk of severe haematoma, a risk of damage to some nerves such as the ilio-inguinal nerve, or that the plaintiff could end up as disabled as she currently is. (This last proposition may readily be accepted, but depends upon a causal connection between the surgery and the current condition, something I have found not to have been established.)

69 She went on to say that, had she been warned that there was even a one per cent risk of suffering a severe haematoma, or a one per cent risk of the severing of the ilio-inguinal nerve, she would not have gone through with the procedure. Nor would she have done so if she had had any idea that she might have become as disabled as she is.

70 The defendant did not have an independent recollection of the consultation. He said, however, that in the January 1990 consultation, when the plaintiff first saw him in relation to the diagnostic surgery, he had had an invariable practice in relation to the information he gave patients. He expressed it in these terms (as recorded in the transcript):

“… to warn that every operation has a slight risk factor, specifically with laparoscopy, a slight risk of fracture of (sic - ? or) haemorrhage or bleeding and infection and a very light slight (sic) risk of damage to internal organs such as the bladder or bowel and that if, in the unlikely event of damage, that – I would use the words ‘opening the tummy’ or ‘laparoscopy’ would have to be entertained to fix the problem. I also ask the patient at the end of the consultation do they have a question because I may not have covered something that is worrying them and I also ask the patient to feel free to phone me between the end of the consultation and admission to hospital if anything comes to mind.”

71 The defendant gave similar evidence about his practice in September 1991, when the plaintiff sought his advice about the surgery the subject of these proceedings. He said this was an invariable practice, and the transcript records him as expressing his advice in the following way:

“ … ‘You do understand that the operation, for all practical purposes, is a permanent procedure.’ I do outline that reversal can be undertaken but not with a guarantee of success. I outline that there will be no changes in the patient’s hormonal content or femininity or sexuality and, with the aid of a diagram, show how an occlusion of the tubes stops the egg from getting through to the uterus to be possibly fertilised by the sperm.”

72 The defendant went on to say that he explained the possible risks of the operation, and when asked to elaborate on this, he said, (again as recorded in the transcript):

“It’s the same as for diagnostic laparoscopy but with additional mention that there is a second incision as opposed to the first laparoscopy that she had, that as with the first incision there is a slight risk of bleeding, of infection, of damage to other organs such as the bladder or bowel, and that if that did happen, there would need to be recourse to laparoscopy or opening the tummy, to use lay language, and that of course with tubal clips there is a slight risk of failure.”

73 Urging a conclusion that the plaintiff’s recollection should be accepted as a more accurate account of the consultation, counsel for the plaintiff relied upon two documents prepared on behalf of the defendant for the purpose of these proceedings. The first of these was a document dated 5 March 1995, headed “Defendant’s Narrative of Facts – Liability”. The only reference to any conversation between the parties appears in paragraph 3, which reads, in full, as follows:

“The defendant discussed permanent contraception with the plaintiff.”

74 The second document is a document containing the defendant’s verified statement in answer to interrogatories. In interrogatory 3A the defendant was asked:

“With respect to the plaintiff’s attendance with the defendant in about September 1991 prior to but in contemplation of the operation conducted on 10 October 1991, state the substance of what the defendant advised the plaintiff as to:
(a) the procedure and method employed to conduct the operation?
(b) the identity of any risks inherent in the operation?
(c) the assessment with respect to any risk identified as being inherent in the operation?”

75 The defendant gave the following sworn answer:

“3B(a) In accordance with usual practice the following was explained:

That, under general anaesthetic, a laparoscopy is performed which involves making a small incision just below the umbilicus through which a telescope is passed; that another small incision is made just below the hair line through which another instrument is passed and that under vision from the first instrument clips are applied to the tubes.
That a curette is also performed to check the cavity of the uterus.
(b) That every operation carries a risk including the risk of infection or bleeding.
(c ) Not applicable.”

76 There were, as was pointed out during cross-examination of the defendant, significant differences between what the defendant said in his answer to the interrogatory and what he said in his oral evidence. What he said in the answer to the interrogatory bears more than a passing resemblance to the account given by the plaintiff. That is, there was a concentration on the mechanics of the proposed surgery and substantially less focus on the description of possible complications and risks. What is notably missing, even from the defendant’s account in his oral evidence, is any real description of what the possible complications might mean, in practical terms, to the plaintiff in the event that they came to pass. To say that “there is a slight risk of bleeding, of infection, of damage to other organs …” is, in my opinion, not very informative, and is insufficient to discharge the obligation to ensure that a patient is in a position to make an informed decision about undertaking a particular form of surgery or other medical treatment.

77 The defendant set considerable store by his practice of asking patients if they wished for further information. This, it seems to me, misses the point of the obligation to provide information. It assumes that patients have sufficient information to know what questions to ask. Recent authorities (see [7] above) make it perfectly plain that the obligation lies, not upon a patient to seek out or obtain information, but on a medical practitioner to ensure that a patient is adequately informed so as to be in a position to make a rational decision (suitable to the patient’s own circumstances) as to whether or not to submit to the treatment. Casting the onus on the patient to request information is an avoidance of that obligation. In my opinion the practice of the defendant was an unsafe and unsatisfactory one.

78 He acknowledged that there were, at the time, in existence pamphlets available to be provided to patients contemplating sterilisation procedures and that these included information about laparoscopic sterilisation. These contained an account of possible adverse consequence from the surgery.

79 The defendant rejected the proposition that it would have been prudent to have handed the plaintiff such a pamphlet, relying on his practice of asking patients if they required further information. He did not believe there was a need to hand out a pamphlet if a patient expressed herself satisfied with his explanation.

80 Again, it seems to me that this is an unwise approach and one which does not meet the obligation the law places upon a medical practitioner. The obligation is not only to give relevant information, but to do so in language, and in a manner, that the patient can understand. A patient in a consultation may be under stress or pressure, and may frequently not be able to absorb all that she is told. Giving a patient information in written form gives her an opportunity to consider it at leisure, outside the tension, and sometimes pressure, of a medical consultation; and to discuss it with friends or relatives. Further, the use of such a pamphlet constitutes a protection, not only for the patient, but also for the doctor. I found the defendant’s explanation for what was obviously a considered decision not to make use of the pamphlet rather puzzling. I am satisfied that the information provided by the defendant to the plaintiff was deficient.

81 That demands examination of what his duty required the defendant to tell the plaintiff. His duty was to warn the plaintiff of any “material” risks inherent in the procedure under consideration. A “material” risk is one to which significance would be attached either by the particular patient, or by a reasonable person in the patient’s position; Rogers, p. 490; Rosenberg, p. 455 (inter alia). I have already concluded that the risk in question was a “material” one. But that does not specify what a reasonable practitioner would, or should, tell a patient. The pamphlet, (exhibit L) issued by the Royal Australian College of Obstetricians and Gynaecologists, is a useful starting point. It states:

“Complications such as bleeding within the abdomen or damage to the bowel or adjacent organs occur rarely, but should this happen, further surgery may be required.”

82 In Dr Lyneham’s first report, dated 7 July 2000, he wrote:

“Bleeding from a vessel in the abdominal wall with subsequent haematoma development is a recognised risk of laparoscopy and can be seen as a material risk. The literature indicates that the consequences of an abdominal wall haematoma is, over a week or two, absorption of the haematoma. If the haematoma is not self limiting but continues to grow despite ice and pressure, surgical drainage is indicated. I can find no evidence in the medical literature relating to complications of laparoscopy of any long-term consequences of abdominal wall haematoma.”

83 On the previous page he had written:

“I have searched the medical literature for any evidence of, or case report describing, an abdominal wall haematoma following a laparoscopic procedure that resulted in nerve damage. My searches have included a number of peer reviewed articles dedicated to complications over laparoscopic surgery, as well as the definitive text ‘Complications of Laparoscopy and Hysteroscopy’ edited by Corfman et al, Blackwell Scientific Publications (1993). I have found no reference to such a long-term complication. I believe the basis for this is that the physiological response to a haematoma developing is lysis of the clot and absorption of the blood in the clot. I am unaware of any physiological process whereby the absorption of a haematoma (unrelated to peritoneal injury, such as may be seen within the abdominal cavity) would result in a localised area of fibrosis and scarring around one portion of a particular nerve that happened to be in the area through which blood was infiltrating.”

84 Dr Jakubowicz wrote in her report:

“6. I do not believe that the development of a retro-peritoneal haematoma such has (sic) been described is a common complication of a sterilisation procedure. However the risks of inadvertent bleeding during a Laparoscopy are well known and these may occasionally require a formal Laparotomy to ligate the bleeding vessel. I feel that a practitioner embarking on a Laparoscopy procedure should always inform the patient that there is a risk of a complication which may require a formal Laparotomy to correct.”

85 One difficulty which confronts the plaintiff is that there is no evidence that the symptoms she currently experiences, which she attributes to the laparoscopic procedure, were in any way a recognised or foreseeable consequence either of the surgery, or of a haematoma arising during the course of, or as a result, of that surgery and, indeed, I have concluded above, as a matter of fact, that they were not caused by the surgery. In my opinion, the defendant’s obligation to inform the plaintiff in this respect is to the effect of that recommended by the Royal Australian College of Obstetricians and Gynaecologists (exhibit L) or, alternatively, as described by Dr Lyneham. This is consistent with the recommendation of Dr Jakubowicz. The evidence establishes only that, while haematoma is a potential complication, and, if it occurs, may result in the need for further surgery, the risk is no greater than that. In my opinion the defendant, in the discharge of his duty to the plaintiff, should have warned her that she may have suffered some bleeding, should have explained to her what that would mean in terms of her physical comfort and recovery, and should have told her that, at worst, it may require further surgery. There is no evidence to suggest that the defendant should have adverted to symptoms of the kind she now experiences. There was simply no evidence that such symptoms are a foreseeable consequence of laparoscopic tubal ligation. The evidence, in fact, is directly to the contrary of that proposition.

86 This raises the second causation question. In evidence to which I have already referred, the plaintiff said that if she had been warned of even a very small risk of severe haematoma she would not have undertaken the procedure. This is the sort of evidence which, by reason of being given in retrospect, and in the knowledge of subsequent events, must be treated with considerable caution: Rosenberg, p. 441. I am unable to accept the plaintiff’s evidence in this respect. This is not because I thought she was a dishonest witness, but because she was giving her evidence from the perspective of, and coloured by, the events of the eleven years since the surgery. I do not doubt for a moment that, had she been told that surgery would bring her to the condition she is presently in, and to the events of the past eleven years, she would have opted for some alternative form of contraception. But that, as I have already found, was not something that the defendant should have warned her about, and not, indeed, something he could have been expected to foresee even as a remote possibility. It assumes also that the plaintiff’s symptoms are causally related to the surgery, an issue I have resolved adversely to the plaintiff. In my opinion it is far fetched for the plaintiff to say that, if she had been warned of the possibility of a short-term haematoma, she would have opted for some other form of contraception. I am sustained in this conclusion by evidence she gave concerning the attitude of herself and her then husband to other forms of contraception. She was extremely resistant to the use of the oral contraceptive, or vasectomy.

87 Accordingly, while I consider the defendant’s approach to the provision of information to his patient unsatisfactory, I find no causal connection between that deficiency and the plaintiff’s subsequent problems. I reject the claim based upon failure adequately to warn the plaintiff of the possible consequences of the surgery.

88 The plaintiff has failed to establish:

(i) that the defendant’s treatment was deficient
(ii) that her current physical symptoms are causally related to the surgery, or
(iii) that failure to provide full information was in any way causative of injury to her.

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

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Last Modified: 12/09/2002