Lange v O'Carrigan
[2013] NSWDC 183
•04 October 2013
District Court
New South Wales
Medium Neutral Citation: Lange v O'Carrigan [2013] NSWDC 183 Hearing dates: 2, 3, 4, 5, 6, & 27/09/2013 Decision date: 04 October 2013 Jurisdiction: Civil Before: Levy SC DCJ Decision: 1.Application by defendant to amend defence to plead the materialisation of an inherent risk pursuant to s 5I of Civil Liability Act 2002 is dismissed;
2.The defendant is to pay the plaintiff's costs of the dismissed application;
3.Verdict and judgment for the defendant;
4.The plaintiff is to pay the defendant's costs of the proceedings on the ordinary basis unless otherwise ordered;
5.Each party is to bear their own costs associated with the expert evidence given concurrently by Dr Bracken, Dr Conrad and Dr Sullivan, such costs to include witness expenses and the cost of representation during the taking of that evidence;
6.The exhibits may be returned;
7.Liberty to apply on 7 days notice if further orders are required.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords: TORTS - professional negligence - orthopaedic surgery - whether total hip replacement surgery resulting in leg lengthening of the affected side represented a departure from the required standard of medical practice - whether revision surgery was undertaken too hastily as claimed - whether treatment was in accordance with peer professional opinion widely accepted in Australia - s 5O of Civil Liability Act 2002; PRACTICE AND PROCEDURE - whether late application by defendant to plead defence of materialisation of an inherent risk pursuant to s 5I of Civil Liability Act 2002 should be granted after close of evidence and submissions Legislation Cited: Civil Liability Act 2002, s 5B, s 5C, s 5D, s 5I, s 5O, s 15, s 16
Civil Procedure Act 2005, s 56, s 57, s 58, s 64
UCPR, r 17.3, r 22.1, r 24.3, r 31.20, r 31.24, r 31.27, Sch 7, cl 5(c)Cases Cited: Adelaide Stevedoring Co Ltd v Forst [1940] HCA 45; (1940) 64 CLR 538
Ainsworth v Levi [1995] NSWCA 9
Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13
Aon Risk Services Australia Limited v Australian National University [2009] HCA 27
Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1
Breen v Williams [1996] HCA 57; (1996-1997) 186 CLR 71
Cox v Fellows [2013] NSWCA 206
Dobler v Halvorsen [2007] NSWCA 335; (2007) 70 NSWLR 151
Dasreef Pty Ltd v Hawchar [2011] HCA 21
Halvorsen v Dobler [2006] NSWSC 1307
Haywood v Collaroy Services Beach Club [2005] NSWSC 1203
Keating v South Sydney Illawarra Health Service (NSWSC, Hall J, No 20232 of 2005, 7 July 2006, unreported)
Luxton v Vines [1952] HCA 19 at [8]; (1952) CLR 352
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705
Paul v Cooke [2013] NSWCA 311
Penrith City Council v Parks [2004] NSWCA 201
Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479
Sidaway v Board of Governors of Bethlem Royal Hospital & Maudsley Hospital [1985] UKHL 1; [1985] AC 871
State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536
Thake v Maurice [1986] QB 644
Vairy v Wyong Shire Council [HCA] 62; (2005) 223 CLR 442
Wallace v Kam [2013] HCA 19Category: Principal judgment Parties: Kelly Lange (Plaintiff)
Timothy O'Carrigan (Defendant)Representation: Mr D Elliott (Plaintiff)
Mr M Fordham SC (Defendant)
Gerard Malouf & Partners (Plaintiff)
TressCox Lawyers (Defendant)
File Number(s): 2012/185574 Publication restriction: None
Judgment
Table of Contents
Nature of case
[1] - [4]
Factual background
[5] - [14]
Credit
[15]
Case for the plaintiff
[16] - [17]
Case for the defendant
[18] - [20]
Array of expert evidence
[21] - [25]
Procedural matters
[26] - [31]
Application to amend defence: s 5I of CL Act
[32] - [60]
Essential question to be addressed
[61]
Facts
[62] - [214]
Plaintiff's background and pre-operative circumstances
[63] - [73]
Pre-operative radiology
[74] - [77]
Consultation with Dr O'Carrigan before first procedure
[78] - [83]
Dr O'Carrigan's qualifications
[84]
First operation - intra-operative procedures
[85] - [100]
Post-operative course following first procedure
[101] - [120]
Dr O'Carrigan's explanation of error in first procedure
[121] - [147]
Events between discharge and 6 week review
[148] - [150]
Post-operative consultation at 6 weeks and following
[151] - [165]
Dr O'Carrigan's decision to re-operate
[166] - [170]
Second operation - intra-operative events
[171] - [181]
Dr O'Carrigan's explanation for timing of second procedure
[182] - [190]
Plaintiff's circumstances after second operation
[191] - [194]
Medical and allied reviews of the plaintiff
[195] - [209]
Plaintiff's residual disabilities
[210] - [213]
Mitigation
[214]
Survey of expert reports on liability issues
[215] - [227]
Concurrent evidence by liability experts
[228] - [232]
Expert evidence on standard of care in first procedure
[230]
Expert evidence on timing of revisionary surgery
[231] - [232]
Legislation
[233] - [238]
Legal principles for determining claim
[239] - [247]
Issue 1 - Alleged negligence - first procedure
[248] - [294]
Issue 2 - Alleged negligence - timing of second procedure
[295] - [324]
Issue 3 - Defence under s 5O of Civil Liability Act 2002
[325] - [341]
Issue 4 - Assessment of damages
[342] - [378]
Plaintiff's probable life span
[343]
Non-economic loss
[344] - [350]
Past economic loss
[351] - [355]
Past loss of superannuation
[356]
Future economic loss
[357] - [361]
Future loss of superannuation
[362]
Past domestic assistance
[363] - [366]
Future domestic assistance
[367] - [371]
Future treatment expenses
[372] - [375]
Past out-of-pocket expenses
[376]
Summary of damages assessment
[377] - [378]
Disposition
[379]
Costs
[380] - [384]
Orders
[385]
Nature of case
In these proceedings, the plaintiff, Ms Kelly Lange, claims damages from the defendant, Dr Timothy O'Carrigan, an orthopaedic surgeon, alleging negligence arising from two elective surgical procedures that he performed on 2 August 2011 and 23 September 2011. The proceedings are governed by the provisions of the Civil Liability Act 2002 ["CL Act"].
The first procedure comprised total hip replacement surgery to the plaintiff's left hip. That procedure resulted in lengthening of the plaintiff's left leg, a possible complication about which she had been warned before she agreed to have surgery.
The post-operative lengthening in the plaintiff's left leg was, by differing methods of estimation explained in the evidence, variously estimated as being 2.8cm, 1.8cm and 1.1cm.
The second procedure comprised remedial surgery to remove and replace the femoral prosthetic components to correct and equalize the leg lengths. In that procedure the true leg length discrepancy was measured to be 1cm.
Factual background
On 2 August 2011, at age 46 years, the plaintiff underwent left total hip replacement surgery performed by Dr O'Carrigan using a non-cemented ceramic Medacta prosthetic hip system. The indication for that surgery was pre-existing osteoarthritis of her left hip.
The plaintiff first reported a perceived post-operative lengthening of her left leg on the day she was to be discharged from hospital. When she drew that perception to the attention of Dr O'Carrigan, he suggested a wait and see approach in the hope that the apparent or functional leg length discrepancy would be biologically accommodated over time. At that stage of the post-operative recovery it was not possible for him to accurately measure the true discrepancy. The plaintiff's case was critical of the occurrence of that discrepancy.
Leg length discrepancy of the kind experienced by the plaintiff was a rare but recognised post-operative complication about which she had been warned. Accepted practice at the time indicated that when leg lengthening was recognised following hip replacement surgery, it was not appropriate to re-operate immediately, and it was reasonable to wait and see if accommodation of the discrepancy occurred over time, unless there were indications to the contrary.
Six weeks post-operatively, on 23 September 2001, Dr O'Carrigan took a different course to the wait and see approach he had initially adopted. On this latter occasion, after his re-assessment of the plaintiff, and after giving further consideration to the problem, he suggested, and then successfully performed, remedial surgery to correct the leg length discrepancy. The plaintiff's amended case was critical of the timing of Dr O'Carrigan's decision to re-operate without allowing time to pass to see if biological accommodation occurred.
In the course of his evidence in chief given in these proceedings, and with the benefit of hindsight, Dr O'Carrigan conceded that in carrying out the first procedure, he had made an intra-operative mistake in the course of the selection of the size of the femoral stem component of the prosthesis, in that he had selected and fitted a size 2 femoral stem instead of using a size 1 femoral stem. That mistake influenced the consequent leg lengthening of which the plaintiff complained.
In his evidence, Dr O'Carrigan acknowledged his error but nevertheless maintained that the intra-operative selection of the size 2 femoral stem component was a decision he had reasonably made at the time although it had resulted in leg lengthening. Those events were explained in step-by-step descriptive detail of the procedure in the oral evidence of Dr O'Carrigan and, to a degree, in the evidence of the expert witnesses.
In the second procedure, Dr O'Carrigan removed the size 2 femoral stem and replaced it with a size 1 stem, and he attached a differently configured femoral neck component. In doing so, he corrected the plaintiff's left leg length discrepancy.
In evidence, reference was made to several descriptions of leg lengthening. These were first, apparent or functional discrepancy, which are equivalent terms, and are based upon what the patient sees or feels, or what the trained observer is able to see without measurement, and secondly, true discrepancy, which is derived by a process of specialised methodical measurement.
Apparent or functional discrepancy was not an accurate measurement as it was affected by posture. In contrast, true discrepancy is an actual measurable skeletal difference in length, and is an observation arrived at by both clinical and x-ray examination. Despite a greater degree of accuracy, that latter method of measurement also has the potential to be inaccurate due to the alteration of anatomical landmarks that occurs during hip replacement surgery. The context and significance of these different descriptions will be explored in greater detail in my findings.
The factual and expert evidence concerning the above events requires analysis to determine whether there were any relevant breaches of the duty of care Dr O'Carrigan owed to the plaintiff, and if so, should this be characterised as amounting to negligence, having regard to the requirements of s 5B of the CL Act.
Credit
No credit issues arose from the evidence of either the plaintiff or Dr O'Carrigan. I am satisfied that the plaintiff gave her evidence honestly, in a matter-of-fact and unembellished manner, truthfully, according to her best recollection and understanding of the events in question. I am also satisfied that Dr O'Carrigan gave his evidence honestly and truthfully, with due recognition of the limits of his recollection in the context of a busy orthopaedic practice. He answered questions put to him in cross-examination in an open, forthright manner. The minor extent to which his evidence and the evidence of the plaintiff differed on the content of post-operative conversations was not material, and did not raise a credit issue.
Case for the plaintiff
As initially filed, the plaintiff's case was widely pleaded. Counsel appearing for the plaintiff at the trial was briefed only shortly before the hearing. He produced a document that narrowed the issues to allege that the first procedure had been performed negligently, in that the leg lengthening should not have occurred, and that in those events, the second procedure had been unjustifiably performed, in that it had been carried out too soon after the first procedure, without first waiting for about 12 months to see whether the discrepancy would be accommodated biologically by naturally occurring postural adjustment.
The forensic focus upon that latter proposition arose from an aspect of the opinion expressed by the expert retained by the defence, and which was adopted on behalf of the plaintiff, thereby abandoning an earlier made claim to the effect that the plaintiff's leg lengthening ought to have been revised immediately after it had been recognised, and whilst the plaintiff was still in hospital. The original pleading of a case based upon various allegations of failure to warn was also expressly abandoned at the hearing.
Case for the defendant
Dr O'Carrigan denied the negligence alleged. He claimed his mistaken selection and insertion of the size 2 femoral stem could only be characterised as erroneous by judgments made in hindsight, in circumstances where the intra-operative trial measurements and the fitting of the selected size 2 femoral stem was considered to have been a proper selection and fit at the time. He claimed that he had exercised the required due skill and reasonable care in the planning and in the course of carrying out that first procedure.
In respect of the first procedure, on Dr O'Carrigan's behalf, it was argued that according to the requirements of s 5B and the provisions of s 5C of the CL Act, in the particular circumstances and events disclosed in the evidence, his concession of an intra-operative error of judgment and the rectification of that error did not justify a finding of negligence.
In respect of the indication for, and timing of the second procedure, on Dr O'Carrigan's behalf, it was argued that in recommending and carrying out that second procedure, he should not be found to have been negligent because his professional advice and actions had been in accordance with what was widely accepted in Australia as competent practice by peer professional opinion: s 5O of the CL Act.
Array of expert evidence
In support of the case for the plaintiff, expert opinion evidence was obtained from Dr Barry Bracken, an orthopaedic surgeon, and Dr Peter Conrad, a general surgeon. In support of the case for the defendant, in addition to his own factual evidence, Dr O'Carrigan relied upon expert opinion evidence from Dr James Sullivan, an orthopaedic surgeon.
In considering the peer evidence adduced in these proceedings, it is necessary to deal with some matters arising from the submissions of the parties.
Dr Bracken had not performed hip replacement surgery in recent years. Although he had never used the Medacta prosthetic hip system, as an orthopaedic surgeon, he had carried out over 1000 hip replacement operations, and he had used the anterior surgical approach. It was not suggested that as an orthopaedic peer, he lacked the professional qualifications for critically reviewing Dr O'Carrigan's treatment of the plaintiff.
Dr Conrad, whose opinions were essentially in agreement with those of Dr Bracken, had never performed hip replacement surgery, although he had practised extensively as a general and trauma surgeon, and he is qualified to carry out medical assessments that involve orthopaedic issues. Objection was taken to Dr Conrad's qualifications for critically reviewing the treatment that Dr O'Carrigan had provided to the plaintiff. After an examination on the voir dire, it was determined that Dr Conrad's evidence should be admitted in the proceedings as the objections to his opinions, in reality, involved the question of what weight should be given to the aspects of his opinions that were in contention.
Dr Sullivan's qualifications as an orthopaedic peer for expressing opinions on the matters in issue were not the subject of challenge. In his practice, he currently carries out hip replacement surgery, and in the past he has had occasion to use the Medacta prosthetic hip system.
Procedural matters
Before analysing the evidence and identifying my findings of fact, it is necessary to say something about some matters of procedure.
The timing of Dr O'Carrigan's concession in his evidence in chief of an intra-operative error of judgment was unfortunate for the parties in the sense that it had occurred at a stage of the proceedings when their positions had become entrenched, with substantial costs having been already incurred. The plaintiff's submission suggesting it was surprising that Dr O'Carrigan's concession of error had not appeared in any of the instructions to the expert retained by the defence.
In my view, nothing turns on that submission as no credit issue arises. The earlier non-disclosure of that concession is of diminished significance, especially as beforehand, the plaintiff's legal representatives had not at any stage sought to pursue the procedural remedies of seeking early admissions (UCPR r 17.3), obtaining evidence before a hearing (UCPR r 24.3) or seeking answers to interrogatories (UCPR r 22.1) aimed at ascertaining the essential facts that were solely within the knowledge of Dr O'Carrigan or others present at the first operation, and which required consideration by the respective experts.
There is little room for doubt that special reasons of necessity existed for the making of an order for interrogatories on matters of Dr O'Carrigan's knowledge and his clinical and surgical reasoning at the relevant time: Keating v South Sydney Illawarra Health Service (NSWSC, Hall J, No 20232 of 2005, 7 July 2006, unreported), at [17] and [20], following Haywood v Collaroy Services Beach Club [2005] NSWSC 1203, per Rothman J, at [15], and similar authorities.
The absence of any procedural steps taken along the above lines has influenced the manner of assembly and the formation of the assumptions for, and the content of, the expert opinions obtained for the purpose of the proceedings, and the timeline of that process.
In preparing for the concurrent expert evidence session in the proceedings, a process which was appropriately ordered by the List Judge at an interlocutory stage pursuant to consent orders prepared by the parties in the days leading to the hearing, the parties did not beforehand pursue any preparation involving the identification of an agenda for a meeting of the experts qualified by the respective sides, nor did they formulate questions to assist the experts and the court in the concurrent expert evidence session. Instead, the concurrent expert evidence proceeded without a meeting beforehand, in a less than ideal and hybrid form, as was dictated by those circumstances. In response to an invitation to do so, the parties made submissions on the costs consequences of those circumstances.
Application to amend defence: s 5I of CL Act
The hearing of these proceedings took place over the course of 5 days between 2 and 6 September 2013, following which judgment was reserved. On 19 September 2013, the Court of Appeal delivered its decision in an unrelated matter: Paul v Cooke [2013] NSWCA 311.
That case concerned the application of s 5I of the CL Act to a claim of medical negligence involving the materialisation of an inherent risk of stroke during treatment that comprised neurosurgical coil clipping of a cerebral berry aneurysm of the right anterior cerebral artery.
The potential significance of the decision in Paul v Cooke to the present case was the statement at [70], to the effect that the concept of inherent risk was not confined to those risks that cannot be avoided by the exercise of reasonable skill and care.
On the application of the defence, in the present case, on 27 September 2013, the matter was relisted for the purpose of further argument arising out of the potential implications to the present case, of the decision on appeal in Paul v Cooke.
In the present case, beforehand, no defence had been pleaded pursuant to s 5I of the CL Act, although such a plea had been available if it had been considered to be relevant when the defence was filed. The proposed amendment seeking to rely on s 5I, which was opposed by the plaintiff, was in the following terms:
"Further and in answer to the whole of the statement of claim, the defendant states that he is not liable in negligence for harm suffered by the plaintiff as a result of the materialisation of an inherent risk.
Particulars
Section 5I of the Civil Liability Act"
Due to the unavailability of senior counsel for the defendant, leave was given to the parties to proceed by way of written submissions on the understanding that my reasons for determination of the application to amend would be incorporated into this judgment. Those reasons are as follows.
There is no doubt that a discretionary power exists to order amendment of the pleadings at any stage of the proceedings to ensure the determination of the real questions on which the parties are at issue: s 64(1) and s 64(2) of the Civil Procedure Act 2005 ["CP Act"].
That discretion must be exercised according to the dictates of justice as required by s 58(1) of the CP Act, and according to the criteria specified in s 58(2) of the CP Act.
The exercise of a discretion to enable a party to amend pleadings must be exercised in a manner that is just to both parties, however, limits must be placed on the ability of a party to effect changes to their pleadings, particularly if litigation is at an advanced stage: Aon Risk Services Australia Limited v Australian National University [2009] HCA 27, at [112].
On consideration of those criteria, a number of insurmountable obstacles preclude granting leave to amend the defence.
First, in the lead-up to the hearing, during the interlocutory stages, neither party seems to have directed their energies to an important aspect of the overriding purpose of ensuring a just, quick and cheap resolution of the real issues in the proceedings by either arranging for, or in the event of a dispute as to appropriateness, seeking an order for, an early conference between the expert witnesses: s 56(1), s 56(2)(b)(v), s 56(3) and s 57(1) of the CP Act; UCPR, r 31.20 and r 31.24.
It is plain from the content of the concurrent expert evidence session during the hearing of the present matter, that if the above processes and the required underpinning steps had been applied at an earlier stage of the proceedings, the true issues would have been identified and the opportunities for a less costly resolution of the proceedings would have been more readily available.
Instead, if the amendment sought is granted, the parties would inevitably face the prospect of incurring further expense, delay and uncertainty whilst particulars were sought and provided, and after consideration, possible further expert evidence, if required, was sought and obtained.
Secondly, the decision on appeal in Paul v Cooke was not the first time a defence pursuant to s 5I was applied in a medical negligence case. Whilst in the present case the defence legal advisors had not previously considered the availability of such a defence, it was always open on the known facts, particularly the facts known to the defendant. That was the very purpose of including in the defendant's consent form a reference to the risk of incurring a possible post-operative complication comprising leg lengthening.
At the first instance, Paul v Cooke, in July 2011, s 5I was prominently argued at the trial: Paul v Cooke [2012] NSWSC 840, per Brereton J, at [2], [109] to [122], and in other places in the judgment. That section also appeared conspicuously in the reasons of the trial judge, which were available since 25 July 2012. This can be taken to have been known to practitioners versed in the area of medical negligence litigation. See also, Cox v Fellows [2013] NSWCA 206, at [184] to [189], published on 9 July 2013.
Thirdly, in complex litigation involving allegations of professional negligence requiring resolution by reference to expert evidence, as is the case here, and contrary to the submission made by the defence arguing that no further evidence would be necessitated by allowing an amendment relying on s 5I, simple analysis dictates otherwise: s 58(b)(i) of the CP Act.
In support of the application it was argued that the way in which the present case had proceeded, the issue of the materialization of an inherent risk of leg lengthening following total hip replacement surgery had emerged "in tandem with the evidence that all steps were taken to minimize the chance of that inherent risk".
In further support of the application, it was further argued that the plaintiff would not suffer any prejudice if the amendment were to be allowed. It was also argued that the case would not have been run differently, and that no further evidence would be required from any party if a defence pursuant to s 5I was pleaded.
For the reasons that follow, I do not accept those submissions.
The defence submission in support of granting the amendment downplays the effect of the proposed amendment, and in doing so, glosses over the complex intricacies and consequences of the remarks by Leeming JA in Paul v Cooke at [60] to [80], where the definition and the nature of inherent risk within the terms of the CL Act was examined.
The submission on behalf of the defendant is also incorrect because it ignores the consequences for the plaintiff, of the decision made on her behalf at the commencement of the trial, to abandon the pleaded failure to warn case. The submission also ignores the significance of the instances that arose in the course of the hearing in view of that decision, where on grounds of relevance the defendant successfully took objections to exclude evidence on aspects of the anterior surgical approach to hip replacement surgery. This necessarily limited the scope of the evidence.
Therefore, at the very least, if the application under present consideration were granted, the plaintiff would have to be given leave to re-open her case to enable the calling of further evidence, not necessarily yet marshalled, and at a cost in terms of further uncertainty, expenditure and delay. That would be necessary for a fair and open contest on how the nature and the extent of general and specific inherent risks of leg lengthening after total hip replacement surgery, should be considered and evaluated in a re-pleaded case.
Further, possible variables as to inherent risk arise for consideration in the form of questions of whether, and if so how, stratification of risks should be seen in connection with particular prosthetic devices, the available surgical approaches, the historical experience of the particular surgeon, the nature and content of advice that should have been given to the patient in accordance with the requirement of the exercise of reasonable skill and care, and how this all relates to the scope and the content of the duty of care owed by the operating surgeon.
It is evident from the above analysis that significant prejudice arises to the plaintiff, which should not be glossed over in the interests of expediency that unfairly favours the interests of one party over the other.
In those circumstances, and contrary to the submission by the defence that the plaintiff would not suffer any prejudice if the amendment were to be allowed as the plaintiff's case would not have been run differently, the above analysis suggests otherwise.
It is not sufficient to speak in terms of materialisation of an inherent risk without an exploration of the context. For example, in the leading case on informed consent, the risk of materialisation of sympathetic ophthalmia following eye surgery was described as being a risk of 1 in 14,000 cases: Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479.
In contrast, in the present case, no evidence was called concerning the incidence of risk of leg lengthening following total hip replacement surgery. No evidence was tendered from within a body of published literature, if it exists, dealing with how risks said to be inherent in the procedure should be stratified in view of the known variables. These are, an anterior approach as distinct from a posterior approach, the use of the Medacta prosthetic system, or other systems, if there were material differences, and perhaps other matters that are best known to experts in the field.
In considering these matters, it would appear that significant injustice would arise to the plaintiff in terms of delay and cost if the amendment were to be granted at this late stage of the litigation, especially where the plaintiff has abandoned her previously pleaded case of a failure to warn of the risk of leg lengthening: s 58(2)(b)(vi) and (vii) of the CP Act.
For the above reasons, the application should be dismissed, with the defendant to pay the costs of the dismissed application.
Essential question to be addressed
As a result, and without limiting the questions the parties wished to pursue with the experts, it was left to the court to formulate the initial and fundamental question to be addressed by the experts. This was essentially whether, on a review of the disclosed factual material, there was any evidence that Dr O'Carrigan had departed from the standard of care that was to be expected of an ordinarily skilled orthopaedic surgeon acting reasonably - if so why so, and if not, why not?: T186.7. The reasoning within the answers the experts gave to that question and the related questions that followed, illuminated the issues to be decided in the proceedings.
Facts
In the paragraphs that follow, unless otherwise qualified, in addition to the already stated factual background, I set out my findings on matters of fact concerning the plaintiff's background, her pre-operative circumstances, the pre-operative radiology and consultations, Dr O'Carrigan's qualifications, the intra and post-operative circumstances of the first procedure, the post-operative course and events following the first procedure, Dr O'Carrigan's explanation of intra-operative error, the post-operative review, the decision by Dr O'Carrigan to re-operate, Dr O'Carrigan's explanations for the second operation, the plaintiff's subsequent post-operative recuperation, the medical and allied reviews of the plaintiff's condition, the plaintiff's residual disabilities, and the issue of mitigation of damage.
Plaintiff's background and pre-operative circumstances
The plaintiff was born in 1965. At the hearing she was aged 48 years. She lives with her long-standing partner. Her daughter from a previous relationship, who is now aged 27 years, recently commenced living independently. The plaintiff took care of her physical fitness by maintaining an active lifestyle, both in terms of her leisure and domestic activities.
On leaving school at age 15 years the plaintiff pursued work for various supermarket proprietors and retailers. She also did some process work in a factory. For about 15 years from 1994, she had worked for Woolworths, a supermarket chain. By the time she left that employment she had progressed from her initial position as a meat packer to holding a responsible managerial position in a suburban supermarket store. This work required her to carry out a variety of supervisory and administrative duties, including hands-on work involving physically lifting and carrying boxes weighing up to 10kg.
Whilst in that employment the plaintiff found that she was ultimately working extreme hours. She found that towards the end of her working day she was limping, and over time, her limping had become worse. In those events, her work duties did not lessen, and she became stressed at these events.
In about 2008, at age 43 years, the plaintiff was experiencing pain in her left groin and hip. She underwent x-rays and was ultimately diagnosed as having a severe form of osteoarthritis in her left hip. This was an unusual condition for someone of her age. Whether this was thought to be due to the effects of assumed Perthes's disease from her childhood years, or due to a slipped femoral epiphysis, diagnoses that were disputed by Dr O'Carrigan, did not require resolution, as such diagnoses made no actual difference to the undisputed need for the plaintiff to have hip replacement surgery due to the presence of osteoarthritis.
As a result of the plaintiff's experience of worsening left hip problems she decided to give up her employment with Woolworths and to take up less stressful and less arduous employment as a care or support worker working in the disability sector. In that employment she has worked various hours for up to 5 days per week, with flexible shifts and ready availability of work, at times working up to 44 hours per week on the odd occasion. The work involved providing care to disabled persons.
In order to further her career in the disability care sector, the plaintiff had undertaken studies to obtain qualifications in the form of a Grade IV Certificate in Community Services and Disability Care with a view to moving into managerial work within that sector.
In the ensuing years following 2008, the plaintiff's experience was of evolving left hip pain becoming more severe. By March 2011, the plaintiff was having continuing pain in her left groin and experienced difficulty standing, sitting, and she had restrictions in her activities of daily living. In early 2011 she sought out medical advice for those problems. She was initially informed that it would be desirable for her to delay consideration of hip recommended replacement surgery until she reached the age of 50 years because of the life expectancy of hip prostheses. After some time she then sought out other advice.
Before the plaintiff consulted Dr O'Carrigan, she had been referred to another orthopaedic surgeon at Royal Prince Alfred Hospital. Due to the unavailability of that surgeon, she saw another surgeon at that hospital who advised her that she could have hip replacement surgery on 6 June 2011. She was told this would be performed by a surgical registrar. She declined that opportunity and instead sought a referral to Dr O'Carrigan, as she was aware Dr O'Carrigan had previously operated upon her father with satisfactory results, and she had confidence in him.
The plaintiff had a past history of episodic tachycardia. She had experienced some past episodes of stress in her personal life. This related to an incident when she had been assaulted and robbed. She had also experienced problems of stress in an earlier domestic relationship. In more recent times, in the course of her work as a care worker, she had also experienced some transient interpersonal problems in working with a difficult to manage client who was disabled due to brain damage. Otherwise, she had enjoyed good general health.
The relevance of the plaintiff's earlier experiences of stress related to her reaction to post-operative events, in that it was suggested that as a result of those earlier events, she had thereby been predisposed to react adversely to subsequent stressors.
Before consulting Dr O'Carrigan for advice and treatment, the plaintiff had undertaken some internet research about what was involved in hip replacement surgery, including the various anatomical approaches that could be taken for hip replacement surgery. As a result of that research the plaintiff believed that in her case an anterior approach to such surgery would involve less bleeding and require less recovery time.
Pre-operative radiology
The pre-operative radiological investigations requested by the plaintiff's general practitioner commenced on 14 April 2008 with x-rays and CT scans of the left hip. The reported conclusion on the interpretation of those investigations was the presence of femoral acetabular impingement of the left hip with secondary osteoarthritis. The appearance of the right hip was reported to be unremarkable.
Repeat x-ray investigation of both hips carried out on 21 April 2010 was reported as showing moderate to severe degenerative arthritis in the left hip. The right hip joint space was reported as being of normal appearance.
Further x-rays and CT scans were carried out on 3 February 2011. On that occasion, the x-ray examination of the right hip joint space was reported as appearing preserved. On CT examination, the left hip was reported to have advanced osteo-arthritis with features suggesting femoroacetabular impingement. Dr O'Carrigan considered the cause of the plaintiff's left hip osteoarthritis to be acetabular impingement rather than Perthes's disease or a slipped femoral epiphysis.
There was no issue that the radiological findings as summarised above warranted that the plaintiff be offered left sided total hip replacement surgery.
Consultation with Dr O'Carrigan before first procedure
On 13 April 2011, with a view to possible hip replacement surgery, the plaintiff's general practitioner, Dr Samir Elsokkary, referred the plaintiff to Dr O'Carrigan for his investigation and management of the pain she was experiencing in her left hip.
On 12 May 2011, the plaintiff attended Dr O'Carrigan's rooms at the Sydney Bone and Joint Clinic. At the time he gave his evidence, Dr O'Carrigan had no actual recall of the history that he had obtained from the plaintiff at that consultation however, the treatment information form he had annotated and completed when he saw the plaintiff at that time, provided relevant details
That information form, and the associated records, show that in the context of the plaintiff's left hip arthritis, Dr O'Carrigan had recommended a total left hip replacement and he agreed to the appropriateness of using an anterior approach, the alternative being a posterior approach. The information form also recorded a number of potential complications which were discussed, including possible leg length discrepancy. The plaintiff also signed a hospital consent form on 12 May 2011, indicating that she understood the nature of the intended procedure and its attendant risks.
The plaintiff agreed to the procedure suggested by Dr O'Carrigan and this was booked to take placed at the Sydney South West Private Hospital on 2 August 2011. In the meantime, in view of a prior medical history of paroxysmal hypertension and arrhythmia, Dr O'Carrigan referred the plaintiff for a pre-operative medical assessment to Dr Lance Day, a cardiologist. The results of that assessment were not in evidence but nothing turns on those results as the plaintiff was assessed as being fit for the operation.
Dr O'Carrigan's pre-operative letter dated 12 May 2011 addressed to the referring general practitioner noted the plaintiff's legs were of equal length and noted his interpretation of the x-rays as showing advanced osteoarthritis of the left hip with osteophyte formation and loss of joint space. He confirmed the need for a left total hip replacement as the only way of providing pain relief and restoring function. He recommended fitting a ceramic on ceramic device and he agreed to perform an anterior approach.
Although the anterior approach to hip replacement surgery raised some technical difficulties and challenges compared to the posterior approach, no issue arises from those facts as there is no criticism of the plaintiff's requirement for that approach to be taken, nor is there any criticism of Dr O'Carrigan's agreement to adopt that approach.
Dr O'Carrigan's qualifications
Dr O'Carrigan is a specialist orthopaedic surgeon who has been in private practice since 1999. He has received post-graduate fellowship training in the assessment, treatment and management of leg lengthening. Amongst other areas of practice, he is a tertiary specialist who is consulted for treatment of leg lengthening issues. He estimated that about 30 per cent of his surgical practice involved joint replacement surgery, about 40 per cent of which involved hip replacement surgery. His qualifications and professional attainments as a specialist orthopaedic surgeon were not in issue, and these are set out in his curriculum vitae: Exhibit "1".
First operation - Intra-operative procedures
The details of the operative procedure for replacement of the plaintiff's left hip came first, from Dr O'Carrigan's operation report dated 2 August 2011, a copy of which was sent to the treating general practitioner, secondly, the oral evidence of Dr O'Carrigan, and thirdly, from the hospital clinical notes. The hospital notes for the first procedure form part of Exhibit "B" between pages 151 to 235. A summary of the events of that procedure follows.
The aims of total hip replacement surgery were described as being to relieve pain and improve function of the hip by removing diseased bony tissue, which would necessarily alter the surrounding anatomy, and to try and restore normal anatomy and biomechanics with the implantation of a hip prosthesis, using the unaffected opposing hip as a landmark or guide to establishing the appropriate positions for the placement of the prosthetic components at the operation site.
Dr O'Carrigan explained that hip replacement surgery can be approached either laterally, anteriorly or posteriorly. He explained that the anterior approach had the advantage of being an inter-nervous and inter-muscular approach that passed through tissue planes in a way that did not involve cutting through muscles, although the lateral femoral cutaneous nerve was at risk of injury, which in fact occurred at some stage in the course of one of the plaintiff's surgeries. The evidence does not permit a conclusion as to which particular operation caused that injury.
In his oral evidence, Dr O'Carrigan explained in detail, and without challenge, the multiple sequenced tasks and professional reasoning that lay behind his clinical decisions and surgical actions that comprised the first procedure that he had performed on the plaintiff. In providing his explanations, Dr O'Carrigan referred to a bundle of copies of radiographic imaging and a model of a prosthesis: Exhibit "2" and Exhibit "3".
Dr O'Carrigan explained that the manner in which non-cemented prosthetic hip components are initially fixed is by means of mechanical interference in order to achieve a mechanical fit between the bony interface and the hydroxyapatite surface of the implanted device. This promotes a stable environment for bony ongrowth from the surrounding bone onto the implanted device, which over the course of the healing process, achieves long term biological fixation.
Dr O'Carrigan explained that the entire array of components within the Medacta prosthetic system that was available to him for the operation comprised 10 graduated sized components that enabled the best fit to be assessed for the patient. He explained that intra-operatively, in selecting the size of the femoral stem component to be implanted, there are competing considerations that needed to be balanced.
Amongst those considerations, were on the one hand, the importance of not undersizing the femoral stem because of the potential for inadequate mechanical interference fit, as a resultant inadequate stability could cause the implanted component to subside, and on the other hand, if the selected femoral stem was too large, this could create the potential for the femoral bone around the implant stem to fracture, which would then be a problematic complication.
It was against that background that Dr O'Carrigan outlined the many sequential details of the pre-operative and intra-operative processes that he had undertaken for the planning, preparation, selection, sizing and the fitting of both the prosthetic acetabular cup size and the femoral stem.
Those steps, which on a distilled analysis, appeared to be in 5 discernable stages, involved some 24, if not more, sequential skilled tasks, which I have summarised in the paragraphs that follow.
First, as to planning and preparation for the operation:
(1) Pre-operative AP or anterior posterior x-rays were displayed on an x-ray viewing box in the operating room;
(2) Selected transparent overlay films were then placed over the displayed x-rays to allow estimates or judgments to be made as to what sized femoral and acetabular components were likely to be required. For that purpose, Dr O'Carrigan had available to him a kit of instruments comprising the entire range of sizes of the components within the Medacta system of prosthetic hip appliances. The unchallenged evidence indicated that the planning process was one of inexact estimation, not precise measurement. Templating alone, without the exercise of intra-operative judgment was not an accurate predictor of prosthesis size because of an inherent magnification factor in the ratio of 3:1 which had the potential to increase the scope for error;
(3) Using the templating process, Dr O'Carrigan then made markings on the x-ray films to denote the position for the oblique cut that was required to perform femoral neck osteotomy. The following scanned extract from Exhibit "2", page 3, shows the oblique line that Dr O'Carrigan had marked on a radiographic film of the plaintiff's left hip to denote where he had planned to make the osteotomy cut in order to remove the femoral head of the plaintiff's left hip:
[Arrow added]
Secondly, the plaintiff was then prepared for the operation to proceed under anaesthesia:
(4) After the plaintiff was draped and prepared for surgery on the operating table, both of her legs were placed in a traction boot device on the operating table in a manner that ensured that her pelvis was located squarely and in a position that permitted intra-operative x-rays to be taken if required;
(5) Surgical exposure of the left hip was achieved through the muscle planes and related tissues to ensure that an adequate view was obtained of the structures to be manipulated and cut as required;
(6) The next phase required that the acetabulum be prepared for the prosthetic implant to that area;
Thirdly, the operation then continued with the removal of the diseased acetabular bone by using a grinding instrument, as follows:
(7) After the acetabulum had been progressively reamed by an electric grinding ball that was sized in 1 or 2mm increments, the bone base or bed was then mechanically prepared for implanting the prosthetic acetabulum;
(8) The acetabular component size was then trialled to identify an acceptable sized prosthetic component. When that size had been chosen, importantly, the actual acetabular implant was then fitted whilst feeling for the adequacy of the mechanical interface for fit, stability and grip into the underlying bone in the correct position;
(9) In that manner, the plaintiff's acetabulum area was then fitted with a 52mm versafit uncemented hip cup inserted with ceramic neutral liner. After Dr O'Carrigan assessed the "feel" for the appropriateness of the size and the fit of the acetabular prosthesis, an intra-operative x-ray was taken with the image intensifier or mobile x-ray to check for adequacy of the location and position of the acetabular component to ensure that it reflected adequate anatomical restoration. In this way, the template and intra-operative x-ray served to confirm that the acetabular cup had been installed into the desired position, at the correct 45 degree angle that permitted adequate movement and stability of the prosthetic joint in all required directions using the opposing unaffected side as the comparative key or guide;
(10) Once the preceding steps had been achieved, including ensuring that no impingement had occurred between the implanted device and the surrounding non-bony tissues as this might compromise the outcome, attention was then directed to the work required on the femoral head;
Fourthly, the process then continued with the removal of the diseased femoral head and the preparation of the femur to receive the prosthetic femoral stem, as follows:
(11) The preparation of the left femur then proceeded with reference back to the template and with visual identification of the location for the osteotomy cut for removal of the femoral head by reference to the anatomical landmarks of the greater and the lesser trochanter. The pre-operative AP x-ray was then marked for the position of the osteotomy cut. The lesser trochanter, whilst visible on the marked up scan, had to be identified by intra-operative feel. The osteotome was then used to make the required cut. Dr O'Carrigan stated that the location of the osteotomy cut in fact coincided with the proposed cut as marked on the scan;
(12) Once the femoral osteotomy cut had been made, access had to be obtained to the proximal end of the cut femur to prepare the femur to accept the femoral stem. A series of progressively sized broaching instruments with roughened surfaces were then introduced into the canal of the femur to rasp an internal space in that bone in order to enlarge and achieve an adequate space to accept the prosthetic stem of the hip replacement device. Progressive in situ measurements of a number of femoral stem components were then trialled for size and for fit in order for Dr O'Carrigan to arrive at a concluded judgment as to the appropriate size of the femoral components to be used. This step involved a challenge in the case of the anterior surgical approach. Access was achieved by standing to the patient's left side, facing the head, and then obtaining extreme extension and external rotation of the femur with the aid of the traction device. This enabled the required angle of access for preparation of the femur;
(13) The broaching of the femur commenced with size 0, it then progressed through to size 1, and then to size 2. For that process, Dr O'Carrigan had the entire range of size of broaching instruments and femoral stem implants available to him to meet all eventualities;
(14) In this process it was necessary to release the soft tissues around the capsule of the left hip joint to avoid fracturing the femur by the exertion of the torsional forces that had to be applied to achieve this stage of the operation;
(15) By this stage, an entry point into the canal of the femur had been created by using the series of graduated broaching tools to rasp and create and progressively develop a slightly curved canal space to accept the insertion of a femoral stem. This process was manual but was also guided by the pre-operative templating for stem size assessment. In this way an adequate femoral cavity was developed;
(16) Once a range of prospective stem sizes were trialled, a decision was then made as to which sized femoral stem would achieve adequate mechanical stability in order to avoid migration of the device on weight bearing. This phase of the procedure required Dr O'Carrigan to make a surgical judgment that involved a choice between the larger size, which might cause femoral fracture in the process of seating the device into place, or too small a size, which might not achieve adequate mechanical stability on weight bearing. In this phase, Dr O'Carrigan had to rely on his manual "feel" of the placement of the device whilst trialling the prospective sizes in situ. That was the final determining factor for completion of the size selection process;
(17) During the trialling process, by means of manual manipulation within the limitations imposed by the chosen anterior surgical approach, the plaintiff's hip was put through a range of motion to ensure that it did not impinge with other tissues. Dr O'Carrigan also had to ensure the device was stable;
(18) In the trialling of the femoral stem component using the anterior approach, including the range of movement testing by using shucking manoeuvres, Dr O'Carrigan had to look to achieve the appropriate degree of soft tissue tension. This also required that he obtain or assess a "feel" for whether the device chosen was appropriate. With the anterior operative approach, soft tissue tension was more difficult to gauge, and for that reason, the intra-operative traction device had to be released to enable some range of movement testing manoeuvres to take place;
(19) By the above process, after trialling a number of combinations of sizes of the 3 components of the femoral prosthesis, Dr O'Carrigan decided upon a size 2 femoral stem with a standard neck with a 32mm head in a short configuration. The choice of sizes of those components was governed by the process of pre-operative templating to estimate stem length and required offset, and the intra-operative trialling of those component sizes in situ, as described above;
(20) At that stage, once the decision on sizing was made, the trial components were removed, the area was then lavaged and the selected femoral stem component was manually inserted into the femoral canal to a point above the osteotomy cut, following which the inserted stem was impacted with some effort by force applied with a mallet until it became embedded to the determined level of femoral stem insertion without fracturing the femur, about a centimetre or so above the level of the osteotomy cut. At that stage, stability of fit was a critical factor because, with the Medacta system used, the fitting process did not involve the use of cement for fixation;
Fifthly, the procedure was then completed as follows:
(21) The completion phase of the procedure required that the prosthetic components be assembled in apposition. This required the application of the range of motion tests or shucking, and then obtaining an intra-operative x-ray using the image intensifier or mobile x-ray device to assess positioning, alignment and length;
(22) Once satisfied that the procedure had been completed according to plan, Dr O'Carrigan repositioned and repaired the capsule and the related soft tissues, the surgical wound was closed, and the patient was sent for post-operative recovery;
(23) The unifying goal of the above testing by those various means was to check that the positioning of the prosthetic components was in accordance with what had been planned by the pre-operative templating, and at the same time ensuring appropriate soft tissue tension and stability of the joint, as well as identifying any periprosthetic fractures, if present;
(24) In the above process, it is important to observe that the post-operative x-ray testing for positioning of the prosthetic components was not an accurate method of measuring leg length because it was a test aimed at detecting malpositioning of components, if present.
After the operation, Dr O'Carrigan next saw the plaintiff in the recovery section, as was described by the plaintiff. Dr O'Carrigan's post-operative instructions were for intravenous antibiotics, the insertion of a surgical drain for 24 hours, and for mobilisation and weight bearing as tolerated.
After setting out the events of the plaintiff's post-operative course, I shall return to the evidence of Dr O'Carrigan in which he explained the plaintiff's leg length discrepancy as a function of intra-operative error.
Post-operative course following first procedure
The plaintiff did not have a detailed recall of the daily sequences of events involving her post-operative recovery. The chronological detail of those events comes from the plaintiff's limited recollection and from hospital clinical notes, and this was annotated by commentary from within the evidence of Dr O'Carrigan where appropriate.
Following the first procedure, the plaintiff recalled being in the post-operative recovery section of the hospital and she recalled Dr O'Carrigan telling her that the operation went well. Whilst in recovery she was aware of being unable to move her left leg and she was aware of terrible pain in her left groin. She recalled Dr O'Carrigan expressing concern over this, and she recalled asking him whether he could move the position of her leg, and she recalled him responding that he could not do so at that time.
Dr O'Carrigan explained that in view of the plaintiff's complaints, a post-operative x-ray of the left hip was then taken in recovery using a mobile x-ray device: Exhibit "2", p 4. This x-ray was arranged because of the plaintiff's complaint of groin pain. The practical purpose of that x-ray was to undertake a gross check in order to confirm the correct location of the hip prosthesis and to determine whether there were any major complications, such as malpositioning of the prosthesis or periprosthetic fractures. There were no such complications evident on that x-ray.
The following scanned extract from Exhibit "2", p 4 shows part of the x-ray image of the plaintiff's left hip taken in post-operative recovery with the prosthesis in place as described above:
Dr O'Carrigan explained that as can be seen from the above image, the nature of that x-ray did not permit fine judgments to be made concerning leg length discrepancy due to the quality of the relatively poor x-ray as it was necessarily taken in less than ideal circumstances: T98.18 - T98.27. The purpose of the x-ray was to essentially check the position of the prosthetic components. The nature and quality of that x-ray meant that it was not capable of being used to check for post-operative leg length as the detection tolerance was more in terms of centimetres rather than millimetres.
After that x-ray was taken, and before leaving the hospital that evening, Dr O'Carrigan waited for the result to ensure that there was no immediate problem such as malposition or neurovascular complication that could explain the plaintiff's complaint of groin pain. Dr O'Carrigan also made sure that the gross neurological function of the plaintiff's left leg was intact, meaning she had reflexes and she could move her left ankle and toes. He also personally checked the x-ray.
The plaintiff's next memory after being in the post-operative recovery section is of waking in her allocated hospital room, with patient controlled analgesia in place ("PCA"), which lasted for 24 hours. She recalled that her severe left groin pain had lessened in intensity. Subsequently, in the ensuing days, once she had started to weight bear on her left leg, she noticed pain in her left groin.
The Hospital notes show that Dr O'Carrigan conducted three post-operative reviews of the plaintiff's condition.
At the first post-operative review, on 3 August 2011, Dr O'Carrigan assessed the plaintiff as doing well. He gave instructions for the plaintiff to sit out of bed and to attempt mobilisation on that day if possible, and to remove the post-operative drain and PCA analgesia the next day.
At the second post-operative review, on 4 August 2011, Dr O'Carrigan gave instructions to remove the drain, to mobilise as soon as possible, and for rehabilitation if necessary.
On 4 August 2011 the plaintiff developed unrelated palpitations or supraventricular tachycardia ("SVT"). This was managed by hospital staff through discussion with the plaintiff's cardiologist, Dr Day, and that condition settled. The plaintiff developed coincidental gastrointestinal problems which also settled. Those matters had no relevance to the issues in this case.
At the third post-operative review, on 8 August 2011, Dr O'Carrigan saw the plaintiff and gave instructions for her to be discharged when she was confident with ambulating and when the physiotherapist was happy to discharge her.
At that time, Dr O'Carrigan made a note in the hospital records to state that the plaintiff was feeling better, her SVT had settled, and that she felt no pain. That entry in the records was also made in the context of a note made by Dr O'Carrigan that the plaintiff felt her left leg was slightly longer.
In the plaintiff's account of her conversation with Dr O'Carrigan on the day of her discharge she stated that he had asked her how she was feeling. In response, she told him she felt like she was lopsided and tipping on one side. The plaintiff said there was no discussion about leg length. She said she just thought all was normal and as she had not had a previous hip replacement she was not sure how she was supposed to be feeling at that time.
Given the plaintiff's reference to a feeling of lopsidedness and the content of Dr O'Carrigan's note, I find that there must have been a discussion that included the subject of leg lengthening, although the plaintiff may not have used that term.
The plaintiff stated that when she had told Dr O'Carrigan that she felt lopsided, her perception of his facial expression was that it changed to what appeared to her to be one of apparent shock. In my view, no liability conclusions can be drawn from the evidence of the plaintiff's subjective perception of Dr O'Carrigan's changed facial expression. Her account of the ensuing conversation with him about her feeling of lopsidedness was that he advised her she would have to wait for the healing process to take its course. She had an appointment to see Dr O'Carrigan for a post-operative review at 6 weeks, on 15 September 2011.
Dr O'Carrigan explained that whilst he could not recall the precise words he used when he spoke with the plaintiff whilst at the hospital, he confirmed that he had a conversation with her to the effect that it was not uncommon for patients to feel a difference in leg lengths at that time, and that this could settle, and that time would have to pass to see whether or not this would settle. In his evidence he explained that following such a procedure a 6-week post-operative review was a standard interval of time for a scheduled review, particularly in respect of leg length, as that period allowed adequate time to pass for a perception of leg length discrepancy to settle, if that was going to occur.
Dr O'Carrigan also explained that an earlier surgical revision was contra-indicated as it increased the risk of infection due to incomplete wound healing and possible colonisation by bacteria, as well as an increased risk of deep venous thrombosis and pulmonary embolus. He explained that those were relevant considerations in the plaintiff's case because she had an episode of tachycardia during her stay in hospital. He also stated that in the circumstances, revisionary surgery would not have been offered without a clearance on that issue, and only after appropriate investigations had taken place.
Whilst the plaintiff was still at the hospital on 8 August 2011, before her discharge, but after Dr O'Carrigan had seen her, a hospital physiotherapist had noted on post-operative Day 6, that the plaintiff reported some pulling sensation in her left groin, but was otherwise well. The physiotherapist noted the plaintiff was able to mobilise with crutches, including on stairs and bed transfers, and was therefore considered safe for discharge home.
The plaintiff was discharged from hospital on 8 August 2011 and was ambulating with the assistance of crutches. Over the course of the ensuing 5 to 6 weeks she graduated from using two crutches to using one, and then to using a walking stick. During this time, she was experiencing various different sensations. She stated she was feeling cold, shivery, and felt that lots of uncertain things were happening at that time. She was also having physiotherapy and she remained off work.
Dr O'Carrigan's explanation of error in first procedure
Dr O'Carrigan explained that the error of the type that occurred in the plaintiff's first procedure was a complication that rarely occurred in his practice, and one that he has made only infrequently: T137.30 - T137.35. He agreed that this type of error is one that is generally avoided by close observance of the checking procedures starting from templating, through to clinical examination, and before completion of the operation: T137.39.
When pressed on the issue, Dr O'Carrigan freely acknowledged that despite the measures incorporated within the 5 stages of intra-operative checks referred to in the evidence, he nevertheless made an error with stem selection: T130.31. He also stated that although he aimed to take extreme care in all cases, despite the 5 levels of intra-operative checks, the fact remains that the results of surgery can sometimes fall short of expectation: T144.19 - T144.36.
In his retrospective analysis, Dr O'Carrigan ultimately thought that the error in question was likely to have occurred at the point in time when he decided to go from the trial prosthesis to the implantation of the actual prosthesis: T152.34. He further explained that he broached the femoral canal up to size 1, and then felt that it was not quite tight enough and he then broached it to size 2 in order to obtain the correct tightness to ensure adequate mechanical interference for stability of the implant: T152.35 - T152.42. That decision which was a judgment call that Dr O'Carrigan made during the operation, not in the templating phase. He said that the described process was not foolproof, which I took to mean it did not eliminate the scope for error: T152.47.
Dr O'Carrigan explained that even after taking the required precautions, there were limitations on the accuracy of the procedure. His evidence on that topic in relation to the occurrence of error was at T122.12 - T122.21, and was in the following terms:
"Q. Having done all those things, how is it that the leg length did achieve something in the nature of 2 to 3 centimetres in functional leg length?
A. Because I made an error. I made an error.
Q. Can you identify where that error lay?
A. It lay in the balance between undersizing and getting a tight fit and mechanical interference fit and the judgment on that day at that time at that point in time in theatre that I felt that a size 1 was undersize and that a size 2 was a better fit. Taking all those factors into account, that's a decision that I made at that point in time and I now know that that was wrong."
[Emphasis added]
In cross-examination, Dr O'Carrigan was pressed to explain why he had selected the wrong sized stem. His evidence in that regard, at T146.30 - T146.50, was as follows:
"Q. Doctor, the number 2 stem inserted on 2 August 2011 to the very best of your ability was nonetheless the wrong stem, wasn't it?
A. Yes, it was.
Q. Doctor, what I'm trying to elicit from you is why you chose the wrong stem? What went wrong?
A. I chose the stem at the time, at that point in time in theatre, that I thought was the correct size for the patient. I did it in good faith with all the information that I had in hand. That was my judgment at that time. Time has proven that to be incorrect. I recognise that, I corrected the problem.
Q. We know the process by which you corrected it at the surgery on 23 September, but what I'm asking you about is how you came to choose the wrong prosthesis on 2 August? What's the lesson that you're taking home from this case?
A. The lesson that I'm taking home from this case is that every patient that I treat, every operation that I do, every decision that I make has potential for significant consequences for both the patient and myself and every decision has to be made with care. I have done that to this point and I will continue to do so."
Dr O'Carrigan explained that the system of templating he used to plan for the sizing of the prosthetic components did not prevent or entirely eliminate the scope for error to occur: T129.49 - T130.2. He also explained that the system of intra-operative checks employed for the procedure was designed to reduce or minimise the risk, but nevertheless, it was not a failsafe system for the prevention of error: T130.12.
The intra-operative checks to which he referred, essentially involved 5 steps. These comprised first, the results of the initial clinical examination, secondly, templating to assist in determining the size of the prosthetic components required for the procedure, thirdly, employing a series of trial devices to assist in determining the size of the final component to be used, fourthly, the use of an image intensifier or mobile x-ray to assist in determining correct positioning of the prosthetic components once they had been placed into position including to exclude periprosthetic fractures, and fifthly, the products of his final clinical examination before completing the operation: T130.4 - T130.28.
Dr O'Carrigan said that he had observed those required intra-operative checks. He said that nothing had gone wrong in the templating process: T145.34. He also said that both the size 1 and the size 2 stem prostheses were an appropriate fit, the difference between the two sizes being what he considered to have been the correct location of the prosthesis within the femur: T145.45; T146.5. The image intensifier x-rays were interpreted as showing that the prosthesis was appropriately located in the correct position: T146.10. He also said that his clinical examination of the implant was his "feel" for the correct position and tissue tension: T89.20; T97.47.
It is clear from the evidence that the checks described above, each involved the need for Dr O'Carrigan to make a series of intra-operative judgments based on his training, knowledge and experience in light of the clinical circumstances that were before him.
Dr O'Carrigan explained some of the detail of the procedure involved in the first operation including the intra-operative checks, as well as the pre-operative preparation that he had undertaken beforehand.
Dr O'Carrigan gave consideration to what must have gone wrong during that procedure after he had reflected on the adverse result that was obtained. In that process, he was in effect, reviewing the intra-operative judgments he had made on the day.
Significantly, in his evidence on those matters, Dr O'Carrigan's explanations on matters of clinical judgment remained uncontradicted by other factual evidence. Accordingly, in the absence of challenges on matters of fact or credit, unless the detail within those explanations appears inherently improbable, which they do not, they should be taken to represent a correct factual account of the key events that occurred during the first operation.
A possible inference arising from the evidence is that for whatever reason, one or more of the intra-operative checks for stem size, position and fit, had not been carried out, or had perhaps been carried out incorrectly. Although a consideration along those lines was open on a first level of analysis, on the evidence as a whole, such a conclusion was entirely speculative and without factual foundation in circumstances where there was nothing in the evidence given by Dr O'Carrigan that acknowledged the force of such a proposition, and there was no other evidence from experts that supported the proposition that there had been a departure from the expected standard of care.
Dr O'Carrigan's evidence in relation to the first procedure was challenged in a number of respects. Those challenges, and his responses, are summarised as follows:
(a) whether he had made the wrong choice of prosthesis, which he said to his knowledge, he had not: T147.13; T152.30;
(b) whether it was possible that an error occurred in the templating process, thereby resulting in an inappropriate choice of a size 2 stem over a size 1 stem, to which he fairly replied that it was possible: T148.15. That answer did not constitute an admission of the proposition that was put;
(c) whether he would have achieved the same result if he had inserted the stem into the femur more deeply, to which he replied that if he had done that, he may have fractured the plaintiff's femur: T147.48 - T149.1;
(d) whether he had inserted the size 2 stem in the femur as far as he did because of fear of fracture, or whether the point of maximal insertion was as far as he thought it needed to be inserted, to which he replied that he had inserted it to the point where he thought it was a good fit and reproduced the plaintiff's anatomy: T148.3 - T148.6;
(e) whether if, he had inserted the size 2 stem a further centimetre down into the femur, he would have achieved the right result, to which he replied that he could well have, but in the process he may have also fractured the femur: T148.8 - T148.22;
(f) whether if, during the course of the procedure, he considered that the inserted stem may not have achieved the desired result, he could have removed the size 2 stem and replaced it with a size 1 stem, to which he replied that if that would have been his assessment at the time, he would not have hesitated to have removed a wrong sized stem, as he would not have deliberately left an incorrectly placed implant in situ, thereby leading to a complication which could have been corrected whilst the plaintiff was still in the operating theatre: T148.24 - T148.42;
(g) whether, if he had taken more care in the procedure he could have (as distinct from would have) avoided the complication in question: T138.13 - T138.18. That answer was not further developed or explored by follow-up questions;
(h) whether he had checked for leg length discrepancy at the end of the first procedure, which he said he did that at that stage whilst the plaintiff was on the bed when she was transferred to recovery, and that a leg length discrepancy was not clinically apparent at that stage: T156.45 - T152.48;
(i) whether the reason he did not order post-operative x-rays on 8 August 2011, when the plaintiff made reference to lopsidedness or leg length discrepancy, because at that stage he already knew that he had probably chosen the wrong prosthesis, to which he replied he did not know that at that time: T164.4 - T64.10;
(j) whether there was any reason why the size 1 stem used on the second procedure could not have been used in the first procedure (as propounded by Dr Bracken), to which he responded that the proposition was more complex than the terms in which it was put, in that the shortened femoral neck used on the second occasion was because the angle of offset changed, so that when he changed from a size 2 to a size 1 stem in the remedial procedure, the shortened femoral neck used in the second procedure served to maintain the angle of offset so as to achieve shortening. He went on to say it was not as simple as stating "its just a shorter neck": T122.36 - T123.38. There was no expert evidence which contradicted that answer;
(k) whether he had an explanation as to how he had done so many such operations and "got all those cases right" and "got this one wrong", to which he responded that he did not have an explanation: T147.22.
In respect of that last answer, at T147.24 - T147.36, the following exchange occurred between Dr O'Carrigan and the cross-examiner:
"Q. And so as far as you're concerned, it's just one of those things, is it?
A. It's not as simple as that because it's not just one of those things.
"Q. No. It can't be, can it. This is a scientific process, isn't it?
A. It's not a fool proof process. We make it as scientific as we can, but it is still not an absolute you cannot undertake that process with absolute certainty that every correct decision is going to be made at that point in time. You can't eliminate the risk. I talk to patients about, when I try to describe risk, I say that you can go to a set of lights to cross the road, you can wait for the lights to change and the green indicator to come up, you can check the traffic on either side, then you can cross the road within the pedestrian crossing and still be run over by somebody who runs that red light unexpectedly. You cannot eliminate risk."
When Dr O'Carrigan was further questioned about where he thought the error lay in the first procedure, on reflection he said it was in his decision to insert the size 2 stem in the position in which he had inserted it in the femur at the time of the operation: T147.45 - T147.47.
Dr O'Carrigan was asked whether he had ever explained his error to the plaintiff. His evidence on that matter, at T139.1 - T139.4, was in the following terms:
"Q. Dr O'Carrigan, did you ever have the opportunity of explaining to Ms Lange the nature of the error which you now acknowledge?
A. Yes, I did. On the three phone calls I made on the 20th and the extensive consultation I had with her in the presence of family on the 23rd."
In giving that evidence, he acknowledged that he did not recall using the specific words of having chosen the wrong sized stem: T139.28 - T139.40. In the absence of an assertion of recent invention, that answer should not be considered to be damaging to Dr O'Carrigan's credit as a witness.
In cross-examination, at T130.30 - T130.41, Dr O'Carrigan was questioned as to whether he felt that there was a particular point during the procedure where he felt he had missed a sign. He was also asked if he felt he could have carried out the pre-operative templating more carefully. His evidence was as follows:
"Q. Despite those five measures, you've nonetheless made this error?
A. I have.
Q. Is there any particular point where you feel you missed a sign?
HIS HONOUR: Meaning hindsight?
ELLIOTT
Q. Could you have done the templating more carefully? Could you have paused for more thought about the selection of the device? What do you put that error down to, doctor?
..."
By way of further answer to the above questions, at T131.6 - T131.46, Dr O'Carrigan gave the following evidence:
"...
A. I made a decision that I thought was the correct one at the time on the evidence that I had and in retrospect it turns out to be incorrect and I've made many, many other similar decision at similar points in time and got it correct. It's not the only error that I've ever made and it is not the last one.
Q. I think what Mr Elliott was seeking from you, if you can answer this question, looking back on the events of the initial procedure and looking forward prospectively as you went through it, can you identify a moment where this error crept in?
A. There's through the anterior approach that issue of soft tissue tension is not as easily accessible as it is through a posterior approach. And whilst that comes down to feel and you cannot quantify it, it actually is a very important thing because when you put in a hip tight you can feel it's tight. You don't have to get an X ray, you don't have to go through other factors. You know, you can do checks but you know that it's tight. And whilst the leg is in traction you can release the traction, which we did, you can try to get a feel of the tension. It's not as good a feedback as it is through a posterior approach and if I had to put it down to what was the biggest factor that maybe influenced making that decision on that day, that was probably it. But it's important to understand for the Court that every approach has some advantages and disadvantages, and there's some things are easier and there's some things that are harder, there are some things that can contribute to this aspect of it but, you know make other aspects easier. So it's all a balance of pros and cons, risk versus benefits and you are taking all these factors into account doing a procedure. So there is no perfect approach, there is no perfect surgeon, there is no perfect patient, there is no perfect system.
Q. I suppose on that paradigm you could also throw in the individual differences of tissue reaction too I suppose?
A. And that is why, that's a very important point because there are some people, and this has not come out in the evidence to point, but there are some people that you could lengthen one centimetre and they would adjust. They would stretch out. Their pelvis would level off, they would not have pain, they would not have problems. Just as there are some people who can be Olympic gymnasts and there are some people who can't touch their toes. There's variations in the flexibility of people's soft tissues, so therefore their ability to accommodate a leg length discrepancy varies. Their ability to for the soft tissues to tension and lengthen out varies and unfortunately with Kelly, the leg length discrepancy that we created was just enough to tip her over into that decompensation level so that she developed contractures which made her leg length difference greater."
It is clear from the above series of answers, that to succeed in this case, the plaintiff had to call evidence to impugn Dr O'Carrigan's clinical judgment and show that it was foreseeably and avoidably wrong at the time he made those judgments.
On the central issue of whether Dr O'Carrigan could have avoided the complication of leg lengthening in the plaintiff's case if he had taken more care, in his evidence at T138.13 - T138.18, the following exchange occurred:
I consider that in this case, the criticism by experts of the timing of the revisionary surgery involves a process of second-guessing the clinical judgments that Dr O'Carrigan made at the time. It is therefore necessary to review the pathway by which that professional criticism unfolded concerning Dr O'Carrigan's advice as to timing of the operation.
The starting point of that analysis is an acceptance of the proposition that Dr O'Carrigan's judgments under present review were made by him in accordance with his duty to ensure that at all times he acted with the best interests of his patient in mind: Sidaway v Board of Governors of Bethlem Royal Hospital & Maudsley Hospital [1985] UKHL 1; [1985] AC 871, at 904; Breen v Williams [1996] HCA 57; (1996-1997) 186 CLR 71, at 97, 105.
In that regard, I do not accept the suggested criticism that was put to Dr O'Carrigan in cross-examination to the effect that he decided he would not investigate the plaintiff's leg lengthening on 8 August 2011, or soon thereafter, because, as it was suggested, he already knew that he had used the wrong sized femoral stem. Instead, I accept Dr O'Carrigan's forthright denial of that proposition: T163.48 - T164.10. I accept that at all times he acted in good faith and in the best interests of the plaintiff: T146.27.
Since the criticisms of the timing of the revision surgery were the subject of debate amongst the experts, a decision on which body of opinion should be preferred, must be determined by rational analysis.
In examining the basis of Dr Bracken's opinions that were critical of the timing of Dr O'Carrigan's revision surgery, it is of some relevance to observe that Dr Bracken's opinions had significantly changed over time. That is not necessarily a criticism of Dr Bracken, rather, it is simply a reflection of how on analysis, the nature of the issue under present consideration is such that reasonable minds may differ concerning the appropriate timing for revision surgery in this case.
Dr Bracken's initial opinion, expressed in his report dated 12 April 2012 stated that the plaintiff's left leg lengthening had led to an intolerable situation, this in turn had led to a recommendation for a revision operation as soon as possible, and which, once carried out had led to a satisfactory outcome. Dr Conrad's report dated 20 November 2012 was essentially in similar terms to the report of Dr Bracken.
Dr Sullivan's report dated 8 January 2013, in response to those opinions, stated that it was reasonable for Dr O'Carrigan to have allowed a small period of time to pass before performing the revision procedure to allow for some prospect of adjustment and also because earlier remedial surgery involved increased risk of infection.
Both Dr Bracken and Dr Conrad had the opportunity of considering the report of Dr Sullivan. Dr Bracken ended up being in substantial agreement with Dr Sullivan, and thought that it was doubtful that the plaintiff's problem with leg lengthening would have settled down had Dr O'Carrigan waited for 12 months. In contrast, Dr Conrad thought that Dr O'Carrigan should have waited 12 months to allow natural adjustment to occur. He said that if revision surgery would have been delayed for that period, on the balance of probability, it would not have been needed. At the trial, against that latter view, Dr Sullivan explained the principle to the effect that patients should initially be encouraged not to have a revision, was based on the premise that the patient considered that discrepancy could be accommodated: T210.40.
Shortly before the trial, Dr Bracken revised his first opinion and stated that if the plaintiff had been treated conservatively instead of re-operating early, there was a high probability that the revision operation may well not have been needed. That alteration in the opinion of Dr Bracken occurred without a change in his basal assumptions. Instead, his altered opinion was issued after a period of reflection and consideration of the views of the other experts. This indicates that if a meeting of experts had been arranged earlier, the areas of dispute may well have been narrowed, if not resolved.
In weighing the factors for and against early revision surgery, as respectively listed at sub-paragraphs (a) and (b) of paragraph [231] above, in my assessment of the evidence, the pivotal factors that are determinative on the issue of the timing of the revision surgery are firstly, the position of advantage that Dr O'Carrigan occupied as the treating surgeon assessing the indications for early intervention as opposed to delaying a revision, and secondly, in conjunction with that factor, Dr O'Carrigan's own assessment of the plaintiff's coping ability, and her emotional reaction to living with her acquired leg lengthening problems.
In that weighing exercise, I consider that some significant credence and weight must also be given to the views of Dr O'Carrigan as to how and why he was going to manage the particular problem, including when revision should be suggested to take place. Those judgments were contemporaneously reactive to the complaints the plaintiff made at the time, and it was not suggested that Dr O'Carrigan's observations concerning those matters were wrongly made.
In those circumstances, the debate comes down to a matter of clinical judgment. In that regard, I prefer the evidence of Dr O'Carrigan and Dr Sullivan to that of Dr Bracken and Dr Conrad because Dr Bracken's initial opinions varied over time, and more importantly, all experts agreed it was most important that a clinical assessment be made as to how the patient was coping with the leg length discrepancy: T209.25 - T209.43.
In that regard Dr O'Carrigan carried out that clinical assessment, which was to the effect that the plaintiff was not coping and was not likely to adjust to the discrepancy over time. That assessment was not contradicted as being wrong or improbable. The plaintiff was concerned to correct the problem and was anxious about it. That was the clinical impression she gave Dr O'Carrigan and he recounted that impression in his evidence concerning those events. That evidence was not contradicted by any evidence in reply, either from Ms Lange, her partner, her daughter or her parents, all of whom were present at the critical consultation with Dr O'Carrigan on 23 September 2011.
Dr O'Carrigan was the practitioner who had the relevant discussion with his patient, and he was the one who had to assess and weigh the apparent significance to his patient of her ongoing symptoms, her reaction in having to live with leg lengthening and the problems this was causing her, including her emotional reaction to those problems.
Those matters required clinical judgment. I am not persuaded that Dr O'Carrigan's clinical judgment has been shown to be wrong.
I am reinforced in that view by the opinion of Dr Sullivan, which supported Dr O'Carrigan's judgment, and because Dr Bracken conceded that the critical judgment as to whether it was likely that the patient would posturally cope over time was a judgment to be made by the surgeon on the evidence before him: T209.42 - T209.47.
I therefore find that Dr O'Carrigan had acted in accordance with the requirements of reasonable skill and care for a practitioner in his situation when he recommended to the plaintiff that she have revision surgery on 23 September 2011, 6 weeks after the first procedure. He did so after considering the physical, functional and psychological issues affecting the plaintiff, and after he had taken time to make expert measurements on the x-rays, weigh the options, and cogently reason that it was preferable to operate earlier rather than to risk increased disability and complications in a delayed revision operation.
In those circumstances, the reasons of the treating clinician should not be discounted and second-guessed lightly from the leisurely vantage point of hindsight where the patient was properly informed of, and was appropriately guided through, the available management options, and chose accordingly.
Against that proposition, none of the factors within the expert evidence and which are summarised at sub-paragraph (a) of paragraph [231] above, and which are against early intervention, involve absolute statements that require rejection of the reasons given by Dr O'Carrigan as summarised in paragraphs [182] to [190] above, in justification for the early revision surgery.
I therefore find that the evidence does not satisfy the requirements of s 5B of the CL Act, particularly s 5B(c) concerning the precautions that ought to have been taken by a reasonable person in the position of Dr O'Carrigan. There is no reasonable basis from within the evidence adduced to support a finding of breach of duty of care and negligence concerning the timing of the revision surgery.
Issue 3 - Defence invoking s 5O of the Civil Liability Act 2002
In case I be wrong in my conclusions concerning Issue 1 and Issue 2, I will proceed to deal with the pleaded defence that invokes s 5O of the CL Act, as well as setting out my assessment of the damages the plaintiff would otherwise have been awarded if, contrary to my liability findings, she had been successful in her claim.
In order to successfully invoke a defence founded upon s 5O of the CL Act, Dr O'Carrigan carried the onus of showing that he should not incur a professional liability due to negligence on his part because at the relevant time, he had acted in a manner that was widely accepted in Australia by peer professional opinion as competent professional practice: s 5O(1) of the CL Act: Halvorsen v Dobler [2006] NSWSC 1307; Dobler v Halvorsen [2007] NSWCA 335.
In a consideration of a defence based upon s 5O(1), irrational peer professional opinion cannot be relied upon to support such a defence: s 5O(2) of the CL Act.
A defence based on widely accepted peer opinion may be upheld even where peer professional opinions in question may differ (s 5O(3) of the CL Act) and where a particular opinion is not universally accepted: s 5O(4) of the CL Act.
The relevant peer professional opinion relied upon by Dr O'Carrigan in this case is that of Dr Sullivan.
In respect of the first procedure, Dr Sullivan was of the opinion it was generally accepted amongst orthopaedic surgeons that none of the techniques for attempting to restore anatomy, leg length and offset were infallible, and at this stage of development of the art of total hip replacement surgery, it was not yet possible to completely eliminate leg length discrepancy following total hip replacement surgery, noting that all techniques had their drawbacks: report of Dr Sullivan, 18 January 2013.
The experts also agreed that the phenomenon of leg length discrepancy sometimes occurs despite all the required steps of precaution having been carried out even in the most expert hands: Dr Sullivan T186.35 - T186.40; Dr Bracken T189.49; all experts T189.50 - T191.10.
In his supplementary report dated 3 April 2013, Dr Bracken stated that he was in general agreement with everything Dr Sullivan had to say in his report. Therefore, in light of the terms s 5O of the CL Act, for the purposes of identifying peer opinion within the scope of that section, it would appear to be unnecessary to go to Dr Conrad's opinion on the question of competent peer professional practice in Australia. This is because the evidence that I have cited clearly indicates that the defence claimed under s 5O of the CL Act, has been satisfactorily established in respect of the first procedure.
In respect of the timing of the second procedure, Dr Sullivan was of the opinion that a revision at 6 weeks incurred less risk of significant complications (T187.15), and the timing of such a revision was a judgment call to be made by the treating surgeon (T213.43 - T213.48) in circumstances where Dr O'Carrigan had the requisite skill and experience to make that judgment (T214.24 - T214.28) and there were no absolute considerations for taking an alternative wait and see approach in the hope that postural accommodation would occur, especially where there was a concern over the ability of the patient to cope (T214.30 - T214.46).
The opinion of Dr Sullivan as cited above in respect of the timing of the revision procedure was not irrational, as is evident from that summary of his views.
The fact that in contrast, Dr Conrad considered it was preferable to undertake frequent reviews of the leg discrepancy over time before deciding to operate (T215.30 - T215.41) is not determinative in circumstances where the patient's concerns had to be addressed in light of her ability to cope with the discrepancy, a pressing matter which Dr O'Carrigan had to deal with at the time. Dr O'Carrigan gave cogent reasons for the position he took in that regard, and those reasons were supported by rational peer opinion as cited above.
Dr Bracken's assumption to the effect that Dr O'Carrigan "had a bit of a panic" when he decided on the timing of his recommendation for the revision procedure, does not accord with my assessment of Dr O'Carrigan's evidence or the assessment of the evidence of the plaintiff on that matter, especially where a judgment had to be made on whether the plaintiff was likely to accommodate the problem: Dr Bracken: T218.17.
In that regard, Dr O'Carrigan made a judgment call based on the particular animated clinical situation that he had before him. Dr Bracken's comment based on an assumption that Dr O'Carrigan "had a bit of a panic" was based on his "impression". In my view, in such circumstances, the considered judgment of the treating surgeon should not be trumped by a hindsight "impression" gained by a medico-legal reviewer where there is room for reasoned and not irrational disagreement amongst peers.
Overarching all of the evidence on timing was Dr Sullivan's opinion that if Dr O'Carrigan had formed the view that the plaintiff was unlikely to cope with post-operative leg discrepancy, a view that was clinically open for him to form in the circumstances, then it was reasonable for him to have offered the plaintiff the remedial surgery when he did: Dr Sullivan: T218.34 - T218.37.
It follows that Dr Sullivan's reasons in respect of each procedure were not irrational and can therefore be taken to represent relevant peer professional opinion as to what constituted competent professional practice in Australia: s 5(O)(1) of the CL Act.
In those circumstances, where it has not been shown that the relevant opinions of Dr Sullivan were unsupported by cogent reasons, then those opinions should not be characterised as being in any way irrational.
Accordingly, Dr O'Carrigan must succeed in his defence that invokes s 5O of the CL Act.
Issue 4 - Assessment of damages
In case I be wrong in respect of my liability findings, for the purpose of any reconsideration of the matter on an appeal, in the paragraphs that follow, after identifying the plaintiff's probable statistical life span, I set out my assessment of the plaintiff's damages claim.
Plaintiff's probable life span
In assessing the plaintiff's damages, there is nothing that reasonably arises from the evidence to suggest that the usual statistical median life span would not apply to the plaintiff's circumstances. At the age of 48 years, the plaintiff has a rounded down probable median statistical life span of a remaining 40 years. For the purposes of assessing some of the claimed future losses, the undiscounted 5 per cent multiplier for 40 years is 917.5. The plaintiff has a remaining working life of 19 years. The undiscounted 5 per cent multiplier for 19 years is 549.3.
Non-economic loss
On behalf of the plaintiff it was submitted that her damages for non-economic loss should be assessed at $187,500, which is the equivalent of 35 per cent of a most extreme case according to the provisions of s 16 of the CL Act.
In contrast, on behalf of the defendant it was submitted that those damages should be assessed as being no more than $75,000, this being the equivalent of 28 per cent of a most extreme case.
It was argued that the plaintiff's functional capacity has improved from that which prevailed before the first operation and that the plaintiff's economic capacity had recovered to that which prevailed before that surgery. It was also argued that the plaintiff's demeanour, her care over her appearance, her interest in social activities and her motivation to work are inconsistent with the existence of a significant psychiatric problem.
The assessment of the physical component of the damages for non-economic loss poses difficulties because from a functional point of view, Dr Brightman was unable to identify the difference between the plaintiff's pre-operative condition, her post-surgical condition, or the effects of the two operations: Exhibit "B", pages 13 and 14.
Nevertheless, the plaintiff has acquired additional scarring, and has had a harrowing experience as a result of the leg lengthening and the need for a later remedial operation. She has also been left with some significant psychological consequences including depression and anxiety.
In assessing this head of damage, I have had regard to my findings at paragraphs [210] to [213] concerning the plaintiff's injuries and her related disabilities. Those disabilities have had, and will continue to have, a significant and deleterious impact on the plaintiff's enjoyment of the amenity of her life. In those circumstances, I consider that the appropriate assessment of non-economic loss would be 29 per cent of an extreme case pursuant to s 16 of the CL Act, which is the equivalent of $96,500.
If the plaintiff had been entitled to an award of damages I would have assessed the plaintiff's damages for non-economic loss in the amount of $96,500.
Past economic loss
On behalf of the plaintiff, it was submitted that her damages for past economic loss should be assessed in the sum of $36,000. This was said to have been based on an allowance of say 15 hours per week at $22 per hour net.
In contrast, on behalf of the defendant, it was submitted that there has been no discernable difference between the loss of earnings that would have inevitably flowed from the first procedure, and for which there could be no claim for damages for loss of earnings, and the additional time taken by the plaintiff to recover from the second procedure, as there would have been substantial overlap of those two periods.
In my view, save for an allowance for a confined number of additional weeks, the submission made on behalf of the defendant must be accepted as being largely correct.
In those circumstances I consider that a reasonable allowance for past loss of earnings would be for 12 weeks at 15 hours per week at $22 per hour net. This amounts to the sum of $3960.
If the plaintiff had been entitled to an award of damages I would have assessed the plaintiff's damages for past economic loss in the amount of $3960.
Past loss of superannuation
If the plaintiff had been entitled to an award of damages I would have assessed the plaintiff's damages for past loss of superannuation on the basis of the conventional calculation of 11 per cent of past economic loss damages, which yields the amount of $435.
Future economic loss
On behalf of the plaintiff it was submitted that her damages for future economic loss be assessed at 10 hours per week at $22 per hour over the remaining 19 years of her working life, in the sum of $135,000.
On behalf of the defendant it was submitted that this component of the claim made on behalf of the plaintiff was unreasonable, and that the maximum amount awardable should be of the order of $50,000.
In my view the evidence does not permit the projection of a precise weekly sum over the remainder of the plaintiff's working life. Instead, I consider that a monetary buffer amount is the more appropriate method by which to compensate the plaintiff for her future loss of earning capacity: Penrith City Council v Parks [2004] NSWCA 201; State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536; Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13.
I consider that any such buffer should be in a significant amount to reflect the likely difficulties the plaintiff continues to have with prolonged sitting and sedentary tasks. This would be likely to adversely affect her in the management role to which she aspires and is likely to achieve, as well as causing her difficulties with some tasks involving mobility and dexterity. She has difficulty lifting and has sustained pain in her leg afterwards. She is also disadvantaged on the labour market due to her additional restrictions. I consider that the appropriate buffer sum should be in the amount of $75,000.
If the plaintiff had been entitled to an award of damages I would have assessed the plaintiff's damages for future economic loss in the amount of $75,000.
Future loss of superannuation
If the plaintiff had been entitled to an award of damages I would have assessed the plaintiff's damages for future loss of superannuation, using the conventional assessment at 14.01 per cent of such damages. Accordingly, I would have assessed the claim for future loss of superannuation in the amount of $10,507.
Past domestic assistance
On behalf of the plaintiff it was submitted that the plaintiff should be awarded damages for past domestic assistance in the assessed sum of $10,000.
In contrast, on behalf of the defendant it was submitted that no damages should be awarded for past domestic assistance because the evidence does not demonstrate that such assistance was needed and was provided for a minimum period of 6 hours per week for 6 months: s 15 of the CL Act.
On the evidence it is difficult to differentiate the degree of domestic assistance required as a result of the second procedure alone. Although the plaintiff said she received about 8 hours per week of domestic help at the time of the hearing, the state of the evidence does not permit a differential assessment between the level of assistance that has resulted from the first procedure and that due solely to the effects of the second procedure. Without that differentiation, the essential requirements of s 15 of the CL Act cannot be satisfied.
I therefore find that the submission made on behalf of the defendant is correct and it should be accepted. I would therefore have made no award of damages for past domestic assistance.
Future domestic assistance
On behalf of the plaintiff, a claim was made for future paid domestic assistance in the amount of $100 per week, which is roughly equivalent to 4 hours per week at $26 per hour, over her probable life span, in the projected sum of $90,000. The restrictions imposed by s 15 of the CL Act do not apply to that claim.
The plaintiff no longer does the gardening. She gets assistance with shopping. Her partner did some of the cleaning around the home before the first procedure. He works long hours and it would appear that he no longer provides as much assistance as he used to in the past. This head of damage is difficult to assess on the evidence. However, the claim of $100 per week, when seen as representing about 4 hours per week, seems reasonable, and I would allow that claim.
The projection of $100 per week at the claimed rate of $26 per hour at 5 per cent over 40 years (x 917.50) for future paid care yields the undiscounted sum of $91,750.
I consider that a projection of that kind should be discounted by 25 per cent for vicissitudes, including for the difficult to assess prospect that at least some of the plaintiff's future restrictions in respect of her domestic tasks would be due to the effects of the first procedure, for which there could be no claim for damages. After discount, this reduces the assessed amount to $68,812.
If the plaintiff had been entitled to an award of damages I would have assessed the plaintiff's damages for future domestic assistance in the amount of $68,812.
Future treatment expenses
On behalf of the plaintiff it was submitted that the plaintiff's damages for future treatment expenses should be assessed in the amount of $45,000.
In contrast, on behalf of the defendant, it was submitted that such damages should be assessed at no more than $2000.
I consider it is likely that the plaintiff will incur some occasional future medical and allied expenses on an unpredictable basis. In view of the unpredictability of that expenditure, I consider that a modest buffer should be awarded in the amount of $5000.
If the plaintiff had been entitled to an award of damages I would have assessed the plaintiff's damages for future treatment expenses in the amount of $5000.
Past out-of-pocket expenses
The parties ultimately reached agreement that the out-of-pocket expenses incurred by the plaintiff as a result of the second procedure were in the sum of $5226.75. If the plaintiff had been entitled to an award of damages I would have assessed the plaintiff's damages for past out-of-pocket expenses in the amount of $5226.75.
Summary of damages assessment
My assessment of the plaintiff's damages is summarised as follows:
(a) Non-economic loss
$96,500
(b) Past economic loss
$3,960
(c) Past loss of superannuation
$435
(d) Future economic loss
$75,000
(e) Future loss of superannuation
$10,507
(f) Past domestic assistance
$Nil
(g) Future domestic assistance
$68,812
(h) Future treatment expenses
$5,000
(i) Past out-of-pocket expenses
$5,226.75
Total
$265,440.75
If the plaintiff had been entitled to a verdict in her favour, damages would have been assessed in the amount of $265,440.75.
Disposition
As the plaintiff's case has not been made out, the defendant is entitled to a verdict in his favour.
Costs
As the defendant has been successful in the proceedings, he should have his costs paid by the plaintiff on the ordinary basis, unless otherwise ordered. This should be subject to the qualification that those costs should not include the costs associated with the expert witnesses giving their evidence concurrently.
I have come to that conclusion because in their approach to the expert evidence the parties made no effort to convene or to seek an early order to convene a pre-hearing meeting of experts with a view to narrowing the scope of the dispute within the evidence of those experts, and to seek to facilitate agreement within the opinions of the experts.
In my view, the nature of the issues calling for expert opinion in this case were readily amenable to such a course, as became readily apparent in the course of the oral evidence of those experts. I consider that if those experts had been properly guided in their tasks, within the spirit and application of s 56(3) of the CP Act, they most probably would have reached a position where they could have succinctly stated their respective agreements and disagreements in a short memorandum or report with supporting reasons.
If the parties had approached the matter in that way in order to facilitate a just, quick and cheap disposition of the proceedings, or to at least narrow the issues at an early stage, it is very likely that oral evidence from the experts would have been considerably shortened, if not rendered unnecessary.
Since in this case neither party sought to take such a course, either by consent, or in the absence of consent, by seeking an appropriate direction from the court at an interlocutory stage in the event of a dispute over the point, I consider that each party should have to bear their own costs of the concurrent expert evidence session.
Orders
I make the following orders:
(1) Application by defendant to amend defence to plead the materialisation of an inherent risk pursuant to s 5I of Civil Liability Act 2002 is dismissed;
(2) The defendant is to pay the plaintiff's costs of the dismissed application;
(3) Verdict and judgment for the defendant;
(4) The plaintiff is to pay the defendant's costs of the proceedings on the ordinary basis unless otherwise ordered;
(5) Each party is to bear their own costs associated with the expert evidence given concurrently by Dr Bracken, Dr Conrad and Dr Sullivan, such costs to include witness expenses and the cost of representation during the taking of that evidence;
(6) The exhibits may be returned;
(7) Liberty to apply on 7 days notice if further orders are required.
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Decision last updated: 04 October 2013
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