Lawrence v NT of Australia - [2001] NTSC 37

Lawrence v NT of Australia & Others [2001] NTSC 37
PARTIES:PAULINE LAWRENCE
Plaintiff

v

NORTHERN TERRITORY OF AUSTRALIA, KARL RICHARDSON and DARYL CATT
Defendants

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:54 of 1995 (9520875)
DELIVERED:  23 May 2001
HEARING DATES:  12, 13, 14, 15, 16, 19 and 20 March 2001
JUDGMENT OF:  MILDREN J
REPRESENTATION:
Counsel:
Plaintiff:D Stratford
Defendant:J Kelly
Solicitors:
Plaintiff:Caroline Scicluna
Defendant:Povey Stirk
Judgment category classification:    C
Judgment ID Number:  Mil01242
Number of pages:  31

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Lawrence v NT of Australia & Others [2001] NTSC 37

No. 54 of 1995 (9520875)
BETWEEN:

PAULINE LAWRENCE

Plaintiff

AND:

NORTHERN TERRITORY OF AUSTRALIA, KARL RICHARDSON and DARYL CATT

Defendants

CORAM: MILDREN J
REASONS FOR JUDGMENT
(Delivered 23 May 2001)
MILDREN J:

This is an action for damages for professional negligence. The defendants Karl Richardson and Daryl Catt were, at the relevant times, both anesthetists employed at the Alice Springs Hospital, a public hospital under the care, management and control of the Northern Territory of Australia. It is alleged that, following a diagnosis of a diseased gall bladder, arrangements were made for the plaintiff to undergo a cholecystectomy, (or removal of the gall bladder) by another specialist employed at the Alice Springs Hospital, Dr. Parameswaran, on 27 January 1994. The plaintiff saw the defendant Dr. Catt on 24 January 1994 for pre-operative anaesthetic assessment. Certain discussions took place concerning the anaesthetic procedures to be adopted at the time of the operation. Shortly prior to the operation the plaintiff briefly met Dr. Karl Richardson, the anaesthetist who administered the anaesthetic at the time of the operation. It is alleged that the plaintiff was told that the procedure to be adopted involved inter alia the administration of an anaesthetic by means of an epidural catheter in the region of the lower spine in order to minimise pain post-operatively. It is alleged that the plaintiff was not told of the risks involved, nor consulted about any alternative options for her pain management, by either Dr. Catt or Dr. Richardson, which might have been available and that accordingly, the defendants breached their duty of care towards the plaintiff. It is common ground that when the catheter was inserted by Dr. Richardson, he inadvertently punctured the dura causing a leak of cerebrospinal fluid. This is a known risk of the procedure. The plaintiff contends that as a result she suffered severe headaches and sixth cranial nerve palsy which resulted in disturbed and impaired vision, a post-traumatic disorder and an anxiety state. She claims that had she been properly advised of the risks and the alternatives, she would not have consented to an epidural, but would have chosen some other alternative. It is not alleged that the puncture of the dura was the result of any negligence by Dr. Richardson. The plaintiff claims general damages for pain and suffering and loss of amenities of life and special damages. There is no claim for lost earning capacity. The defendants deny that they inadequately advised the plaintiff, and further deny that the plaintiff, if advised properly, would not have chosen the epidural. The plaintiff further claims that the treatment she received by the Alice Springs Hospital post-operatively was negligent and exacerbated her symptoms. This aspect of her claim is also denied.
The plaintiff, at the time of these events, was a 46 year old married woman who worked at the Alice Springs Hospital as a domestic. Prior to December 1993 she had enjoyed good health. In that month, she began to experience pain on her right side and nausea. She saw her general practitioner on 21 December, who referred her to Dr. Parameswaran at the hospital. On 4 January she had a particularly acute episode of pain and was taken by ambulance to the hospital where she was administered a painkiller, pethidine, by injection. This reduced the pain sufficiently to enable the plaintiff to go home. Subsequently, she saw Dr. Parameswaran who advised her that her gall bladder needed to be removed. He arranged for her to see Dr. Catt on 24 January 1994 and for her to be admitted to hospital on 26 January, for the cholecystectomy on 27 January.
The plaintiff saw Dr. Catt on 24 January at the specialists’ offices at the hospital. I interpose here that Dr. Catt was not the anaesthetist for the plaintiff’s operation, but the arrangement at the hospital was that the pre-operative examination would, as a matter of convenience, be done by one of the anaesthetists depending on availability as part of a team effort. The plaintiff was weighed by a nurse, who also took her blood pressure and filled in some basic information on an anaesthetic pre-operation examination record which was then given to Dr. Catt. During the consultation, according to the plaintiff, she was told that she was having a general anaesthetic and an epidural for pain relief. She further claimed that she was not given any advice about the risks associated with a general anaesthetic and was given no information about the epidural. She claimed she was not told about any other options for pain relief, although she was told that she would be given pethidine injections post-operatively and that she probably would not experience nausea because of the epidural. She also agreed in cross- examination that she was advised that, because she was a smoker, she was at a higher risk of chest infections, but she denied that she was told that this was the reason for giving her the epidural. She also agreed that she was asked if she had any questions and that she asked no questions even though she had never had an epidural previously. She said that when Dr. Catt told her she needed the epidural, she believed that to be so as Dr. Catt was the expert and she trusted him.
Dr. Catt had no independent recollection of his consultation with the plaintiff, but was able to refresh his memory by reference to the anaesthetic pre-operation examination record. On the subject of general anaesthetic and epidurals, Dr. Catt was able to say that the plaintiff had told him that she had had general anaesthetics previously, that there had been no complications, but that she had suffered from severe nausea and vomiting. In evidence-in-chief he was asked what he said to the plaintiff on the subject of the epidural:
MS. KELLY: Okay, so what did you do next after you performed the examination?---Then I suggested to Mrs. Lawrence that she was going to have this operation on the 27^th and that there were several things we needed to discuss about the anaesthetic, but most particularly the type of pain relief she would have after the operation. Being a cholecystectomy, it’s a very painful operation, it’s usually a sub-chostal(?) or that is to say, an incision that is done under the rib cage on the right-hand side, above the gall bladder so the operation can be performed…
Could you tell his Honour what---?---Yes, so---
---what you said or did next?---So, I explained to Mrs Lawrence there were several options available for her after the operation, and I listed them as intramuscular injections of pain killers, intravenous infusions of pain killers, and these are narcotic pain killers, or the other option that I described was of epidural analgesia. And I suggested to Mrs Lawrence that because intramuscular injections – there may be time lags between the intramuscular injections so that, you know, they, they will – she often will get break-through pain because of that lapse, or time intervals between the injections. And the disadvantage of an intravenous infusion is that although it gives good pain relief, she suffers from severe nausea and vomiting from a previous exposure – previous examples that she had in previous anaesthetic – that the problem with intramuscular and intravenous infusions was that, you know, that nausea and vomiting would quite often be quite severe. So that there was a third option to which I suggested might be better, that is an epidural, because the quality of pain relief is better, and the – less likely to get nausea and vomiting because the dosing of the pain killers is significantly less. And I also suggested at the time that there’s a – that the disadvantages of the intramuscular injections was there there’s gaps in the administration and the disadvantages also of both the intravenous and intramuscular injections was of nausea and vomiting. And the disadvantages of the – potential disadvantages of the epidural was headache and bruising of the nerves in the back where the catheter gets placed, and my usual practice is to tell patients that epidurals are like the – well they are the injections that ladies in labour have when they’re having their babies.
Now, Doctor Catt (inaudible), are you absolutely certain that you said to Mrs Lawrence that some of the downside or disadvantages of an epidural are the possibility that you might get a headache, or some bruising of the nerves?---Well, my usual practice is to do that, because I mean you can’t have a discussion about the options that are available unless you talk about the ups-the ups and downs or the advantages and disadvantages.
But I just – the question, Doctor Catt, I put was---?----I’m sorry.
---can you be absolutely certain that you said that to Mrs. Lawrence?---Well, I can’t be absolutely certain, no.
But I just want – so that his Honour understands this?---Yeah
That you’ve –how is it that you say that – that you can say that you believe that you did say that?---Well, you know, because I have made the note here, ‘suggest epidural for post operative analgesia’ and that’s – I’ve written that down on the comments with – it’s about two-thirds of the way down. That’s a suggestion that I’ve put to doctor – I knew Doctor Richardson was going to be the anaesthetist for the operation and that was a note that I suggested to Mrs Lawrence that an epidural was suggested to her and in my mind, that indicates to me that I will have – that I would have discussed the options with her.
In cross-examination, Dr. Catt agreed that on this topic he had no recollection of what he told the plaintiff and that his evidence was based upon the notes (which did not revive any actual memory) and his usual practice. The notes do not in fact contain any mention of any discussion on this subject.
Dr. Catt was also interrogated on this subject. In his answer to interrogatory 3.2 concerning the discussions he had with the plaintiff, there is no mention of his having mentioned anything about the risks inherent in having an epidural. In examination-in-chief, he was asked why this was not mentioned in his answer to interrogatory 3.2 and he said:
---It’s part of the discussion, your Honour. I mean, it’s part of the discussion, your Honour, about the – about the alternatives. I didn’t also mention here about the risk of overdosing with intramuscular or intra-or continuous intravenous narcotic analgesia either, they are – in the interrogatories – in this submission. So, you know, that’s just simply, I believe, part of the discussion that you have about the different options; it’s – it just comes on with the other. It’s part of the whole game (?).
Sorry, Doctor Catt, you’ve just said you didn’t mention the possibility of accidental overdosing with intravenous infusions?---Yeah,
Was that something that you discussed with Mrs Lawrence?---No.
No?---No.
Now, sorry, I’d just like to get this straight: when you say bruising of the nerves is one of the things you said?---Mm mm.
Is that the same thing as this sixth nerve palsy that Mrs Lawrence in fact developed?---No, I - that was referring to the direct risk of trauma where the needle is inserted in the back.
Right?---At the site where it – where it – where the needle is – and the catheter is inserted.
Did you tell her that a possible – did you tell her anything about the possibility of sixth nerve – lateral nerve palsy and/or diplopia?---No, no., (inaudible).
I do not consider this to be a convincing explanation.
In interrogatory 4, Dr. Catt was asked “what advice, if any, did you provide to the plaintiff regarding the risks inherent in anaesthetic procedures?” His answer was: “I do not recall discussing this, however, as standard practice I did ask the plaintiff twice if there were any questions or queries she had or would like to ask.”. This answer does not sit well with his evidence to the effect that, in accordance with his usual practice, he told the plaintiff about the risk of headaches, or of bruising to the back.
It was not put to the plaintiff in cross-examination that Dr. Catt had told her that there might be headaches and bruising of the nerves in the back from the insertion of the catheter if she had an epidural.
I am satisfied that both the plaintiff and Dr. Catt were honest witnesses and tried their best to give honest and truthful evidence to the Court. The plaintiff’s recollection of what she was told by Dr. Catt is patchy, but it is better than Dr. Catt’s. It is to be expected that the plaintiff's and Dr. Catt’s memories of what actually was said some seven years ago would be largely forgotten. I think it is likely that Dr. Catt did discuss the alternatives to having an epidural with the plaintiff, who recalls being told something about chest infections, and that there would probably not be any nausea post-operatively. The plaintiff conceded also that it was possible that she may have been told that the epidural would give more effective pain relief than pethidine injections. This suggests that the alternatives were discussed in accordance with Dr. Catt’s usual practice. Further, it is common ground that Dr. Catt explained the actual operation to be formed by Dr. Parameswaran. This suggests that he explained in some detail why he was recommending to her that she have the epidural. The actual operation involves cutting the muscles attached to the rib cage, which are then diathermied (or burnt). Consequently, it is quite painful to breathe and cough post-operatively. As the plaintiff was a smoker, she had a significant risk of getting pneumonia and a chest infection and needed to be able to cough and receive physiotherapy, as well as mobilisation. I find that this was explained to the plaintiff. This being so, I consider that it is more likely than not that Dr. Catt also discussed the alternatives with the plaintiff and in the course of that I expect he probably pointed out the disadvantages of those alternatives, but it does not necessarily follow that he also explained the risks involved in having the epidural. It is not suggested that he advised the plaintiff of the risks of a general anaesthetic. I am satisfied that the plaintiff was not told anything by Dr. Catt of the risks associated with an epidural. The plaintiff was very positive about this and despite her patchy memory, I prefer her evidence to that of Dr. Catt’s. I consider that Dr. Catt probably did not then usually advise his patients of these risks. There is no mention of this in his answers to interrogatories and I find his explanations for this unconvincing.
Furthermore, Dr. Catt did not say that he gave any explanation to the plaintiff of what an epidural was, even in the simplest of terms, yet the plaintiff had had no experience of this procedure. If the procedure itself was not discussed, it would seem unlikely that any of the risks were mentioned. The overall impression I have is that Dr. Catt was anxious, for good reason, to persuade the plaintiff that she ought to have the epidural and in the process forgot to mention any of the risks. It is common ground that Dr. Richardson gave no explanation of the risks.
However, in order to establish a breach of duty, it is necessary to consider what, if anything, Dr. Catt or Dr. Richardson ought to have told the plaintiff about the risks of the procedure. Firstly, this involves a consideration of what were the risks in question. It was submitted by Counsel for the plaintiff that the relevant risk in this case was the risk of dural puncture. The evidence is that dural punctures occur in between .5% and 2.5% of all cases in Australia, the rate of incidence depending upon the experience of the anaesthetist. Dr Brownridge gave evidence, which I accept, that he personally had not punctured the dura for the last twenty-three years. The most common side effect is post-dural puncture headache which occurs in about 70% of such cases, especially where, as in this case, an 18 gauge Tuohy needle is used to insert the catheter. The headaches can range from mild to quite incapacitating and are very postural in nature in that they are worse when sitting or standing and relieved when lying down. In almost all cases, the headaches resolve themselves within a matter of several days without the need for any specific treatment, but they might last as long as fourteen days. In severe cases, the headaches can be treated using a blood patch which is usually very effective. This type of headache does not respond particularly well to opiates or other painkillers. Another common consequence associated with the headaches is nausea, but this may also be caused by pethidine which is usually also given post-operatively to control pain, or it may be a consequence of the general anaesthetic used. It is not possible to know the precise cause of the nausea in any given case. Other symptoms associated with dural puncture are visual disturbances and auditory symptoms, but these are so trivial that patients do not complain of them. Some pain may also be felt in the back of the neck and shoulders, but the most severe symptom is likely to be the headaches. It is relevant in considering the degree of risk to bear in mind that Dr. Richardson, who inserted the catheter, had been in practice as a specialist anaesthetist since 1977, having obtained his primary qualifications in 1969; so by 1994 he was an experienced anaesthetist, although I note that he spent 1993 in England training in obstetrics and gynecology. He gave evidence, which was not challenged, that he had given many epidurals. He could not say how many, but it was in the hundreds and perhaps in the thousands. He was not asked if he had punctured the dura previously.
The risk of diplopia and associated sixth nerve palsy is very rare. According to the evidence of Dr. Gillies, the incidence of this complication is reported in the literature as one in over 78,000 cases. None of the specialist anaesthetists who gave evidence in this case had ever personally experienced this condition, although it was a known risk reported in the literature. Again, this is not a terribly serious condition as it will resolve itself totally, without further treatment, over a period of several months. The effects of the diplopia can be improved by using an eye patch.
In Rogers v Whitaker(1992) 175 CLR 479 at 488-9, Mason CJ, Brennan, Dawson, Toohey and McHugh JJ (with whom Gaundron J agreed) expressly approved of the approach taken by King CJ in F. v R. (1983) 33 SASR 189 at 192-3:
King CJ considered that the amount of information or advice which a careful and responsible doctor would disclose depended upon a complex of factors: the nature of the matter to be disclosed; the nature of the treatment; the desire of the patient for information; the temperament and health of the patient; and the general surrounding circumstances...
The approach adopted by King CJ is similar to that subsequently taken by Lord Scarman in Sidaway [Sidaway v Governors of Bethlem Royal Hospital [1985] A.C. 871] and has been followed in subsequent cases. In our view, it is correct.
The question of whether or not the defendant anaesthetists have breached their duty of care towards the plaintiff depends not on the standards of the medical profession (so far as the failure to warn of the relevant risks is concerned) but is a matter for the Court to determine, having regard to the factors mentioned above by King CJ in F. v R. (supra). Nevertheless, expert evidence as to acceptable medical practices is admissible as a "useful guide". By this I understand that the High Court in Rogers v Whitaker, supra, at 488, by its approval of a passage from Reibs v Hughes [1980] 2 S.C.R. 880 at 894-5, expected that expert evidence would be relevant to findings as to the relevant risks involved and will have a bearing on the question of materiality: see Rogers v Whitaker, supra, at 488. As to what is a material risk, their Honours said, at p490:
We agree that the factors referred to in F. v R. by King C.J. must all be considered by a medical practitioner in deciding whether to disclose or advise of some risk in a proposed procedure. The law should recognize that a doctor has a duty to warn a patient of a material risk inherent in the proposed treatment; a risk is material if, in the circumstances of the particular case, a reasonable person in the patient's position, if warned of the risk, would be likely to attach significance to it or if the medical practitioner is or should reasonably be aware that the particular patient, if warned of the risk, would be likely to attach significance to it. This duty is subject to the therapeutic privilege.

As was pointed out by Gummow J in Rosenberg v Percival [2001] HCA 18 at para 69, the first step is to define the relevant risk. As his Honour observed:
It is appropriate in this context to define the risk by reference to the circumstances in which the injury can occur, the likelihood of the injury occurring, and the extent or severity of the potential injury if it does occur. These factors are to be considered from the point of view of what a reasonable medical practitioner in the position of the defendant ought to have foreseen at the time. This approach directs attention to the content of any warning that could have been given at the time.
In this case, the relevant risk was, as counsel for the plaintiff contended, the risk of dural puncture rather than the side effects. On the evidence in this case, that was a well-known risk of an epidural. The likelihood of that occurring was not so small as to be disregarded; nor were all of the side effects so minor or so unlikely that they could all be disregarded.
The next question is whether the risk, in the above sense, was "material". This involves a consideration of whether:
(1) the defendant anaesthetists were, or should have been, aware that the plaintiff was likely to attach significance to it ("the subjective limb"); or
(2) whether a reasonable person in the plaintiff's position would be likely to attach significance to it ("the subjective limb").
There is no evidence that the defendant anaesthetists were or should have been aware that the plaintiff was likely to attach significance to the relevant risk. The plaintiff, who knew very little about epidurals and had never previously experienced an epidural, asked no questions about potential risks or side effects although twice given the opportunity to ask questions by Dr. Catt. She herself agreed that when told she needed an epidural she believed that to be so and trusted the advice given to her. There are no other factors in the evidence to suggest that the defendant anaesthestists knew, or ought to have known, that the plaintiff was likely to attach significance to the risk. That being so, the risk was not material so far as the subjective limb is concerned.
I turn now to consider the objective limb. First, I note that the evidence is that the risk of dural puncture is reasonably high, it being between .5% to 2.5% in all cases. Secondly, the anaesthetist who would perform the epidural was very experienced, albeit he had had a year off during the preceding year which may have affected his skill levels. Of the consequences, the most significant is clearly post-dural headaches which occur in 70% of all such cases. Notwithstanding that the headaches usually resolve themselves within several days and may be mild to severe, but if severe can be treated using a blood patch, I consider that a reasonable person in the plaintiff's position is likely to attach some significance to that risk.
As to the other consequences, nausea is not likely to be thought significant, particularly as this is likely to occur anyway for different reasons. The visual disturbances and auditory symptoms are trivial and no one would be likely to think them significant. The pain in the back of the neck and shoulders also appears, on the evidence, to be of a very mild kind, although the evidence as to how long it may last is not clear. I do not consider that a reasonable person in the plaintiff's position would attach significance to it. The diplopia and associated sixth nerve palsy is very rare and is not usually of much significance. I do not consider that a reasonable person in the plaintiff's position would attach any significance to this possibility. There is no evidence that the plaintiff had a history of neck or shoulder pain, or of visual or auditory disturbances, or was a person who was likely to be more affected than anyone else by these complications. As to those consequences, I do not consider that the defendant anaesthetists were required "to spend an inordinate amount of time conjuring up fanciful fears in the mind of the patient by stressing risks which are not sufficiently substantial to be a factor in the decision-making of a reasonable person", to use the language of King CJ in F. v R., supra, at p192.
In arriving at these conclusions, I have taken into account that there was no immediate emergency and that there was sufficient time for a fuller explanation if that had been required or was desirable. I have noted also that there is nothing to suggest that the plaintiff was, at the relevant time, possessed of an excitable temperament or in an emotional state such as to be unable to make rational decisions. The plaintiff has had only a basic education (to year 10 high school). Her work experience has been in office work as a receptionist or telephonist and as a domestic at the defendant's hospital. There is nothing to suggest to me that she would have a knowledge of medicine or of anatomy sufficient to appreciate what is a dural puncture and how this may cause headaches, but the explanation of this is not so complex that she would not have understood it if it had been presented to her in a simple form. I have borne in mind the opinion of Dr. Brownridge on this subject to the effect that most patients would not know what the dura was and that the main point is the consequences of the puncture (see TR p.355), but it seems to me that without an explanation of both cause and effect, the plaintiff would not have been given sufficient information to ask further questions. As King CJ observed in F. v R., supra, at 193:
What is required is reasonable care on the part of the doctor in exercising a judgment as to the real risks of his patient in relation to receiving information relating to risks. If a reasonable exercise of that judgment is against volunteering information he will not be negligent. In this context, however, it is necessary to keep in mind the paramount consideration that a person is entitled to make his own decision about his life and a doctor should not lightly make the judgment that the plaintiff does not wish to be fully informed.
I have also borne in mind that there were important medical reasons why the plaintiff ought to have had an epidural. I have already referred to the evidence of Dr. Catt on this subject, but I base my findings on the evidence of the independent medical experts, Drs. Brownridge and Gillies (Tr. pps 123, 317 and Ext D9) which was to the same effect. Although there were alternatives, they were not likely to be as effective in treating post-operative pain management and subjected the plaintiff to the risks of chest complications. (The main benefits are discussed in Ext D9; it is not necessary to repeat them all here.)
To summarize my conclusions so far, I consider that the defendant anaesthetists should have advised the plaintiff about the risk of dural puncture leading to moderate to severe headaches for a period of seven to fourteen days and that they should have explained to her what a dural puncture is and how that can cause headaches. It would have been appropriate also to advise her that if the headaches are severe they might be resolved by the use of a blood patch. They did not do so and therefore breached their duty of care towards her.
I turn now to the question of causation. The plaintiff must prove that had she been so advised of the risks associated with epidural analgesia, she would have chosen not to have it. The plaintiff's evidence-in-chief was that if she had been told that it was possible that the catheter might cause a puncture of the dura and that she would suffer from headaches, pain in the neck and back, nausea and vomiting, she would not have had the epidural and would have chosen some other form of pain relief. In cross-examination, it was put:
Now what it boils down to is this, isn't it, Mrs. Lawrence, that what you are saying now is that if you had known what you were going to be in for over the first few weeks and even for the next 7 months with all of that double vision, you wouldn't have accepted an epidural. That's what you are saying, isn't it?---Yes, that's what I'm saying...
Now I am going to – I'm going to tell you – I'm going to read something out to you. You're sitting in Dr Catt's office. Now I am going to say something to you and I want you to assume that I am Dr Catt and I am giving you this information. And I am going to give you some information, a recommendation and then I'm going to ask you a question. Right?---Right.
So I want you to listen as though I am Dr Catt and Dr Catt is giving you this information, and then I will ask you a question. Dr Catt says to you something like this, and it's quite lengthy. Mrs. Lawrence, a gallbladder operation is very painful. You will have to have – you'll have a general anaesthetic for the operation itself, but there's usually a great deal of pain after the operation as well. So we'll need to consider post-operative pain relief. It's also very common to suffer nausea and vomiting after a gallbladder operation so we need to consider that too. In addition there's a risk of developing a chest infection after a general anaesthetic which can lead to pneumonia. Now smokers are especially at risk of developing post-operative lung or chest infections so we'll have to consider that. Now there are a number of options available to you for post-operative pain relief. We can give you intramuscular injections of pethidine or an IV infusion of pethidine, that's into the vein, or a patient controlled infusion of pethidine or we can give you an epidural with a local anaesthetic and pethidine. Okay?---Yes.
Now there are risks of unwanted side effects with all of these procedures, with all of these methods. A known side effect of epidurals is that there can be an accidental puncture of the dura which can give you a headache a couple of days afterwards or immediately afterwards at times, which can last for a couple of days or up to a week, but then goes away by itself. Now the risk of developing a headache is somewhere between 5 and 2.5% and the headache can range from mild to extremely severe. Now a very common side effect of pethidine, whether it's intramuscular or IV or however it's administered, is nausea and vomiting, but in your case I recommend that you have an epidural for post-operative pain relief. That's for a number of reasons. The main reason is that it gives you much more effective pain relief than the others. And that's important for a painful operation like a gallbladder operation. You need effective post-operative pain relief. Now the second reason is that it gives that effective pain relief with a lower dosage of pethidine or opiates and that will reduce the risk of nausea and vomiting, post-operatively. You may still get nausea and vomiting post-operatively, but that will reduce the risk. Now I note that you told me that you've suffered from nausea after a previous anaesthetic so it's probably a good idea for you to have something that may reduce that risk, especially since the operation itself is likely to cause nausea and vomiting. Now thirdly, and I'd say this is the most important reason I'd recommend an epidural, is that you'll need to be able to cough after the operation to get up phlegm from your lungs or you are at risk of developing a chest infection. Now it's very hard to do that after painful abdominal surgery. And an epidural will help to give you that effective pain relief, which will enable you to cough and reduce that risk of lung infection that you have as a heavy smoker. So for those reasons, Mrs. Lawrence, I will recommend that you have an epidural. Okay, that's what – in my hypothetical situation Dr Catt has said that to you. My question is this, Mrs. Lawrence. You would not have rejected Dr Catt's recommendation, would you?---But he didn't say all that.
Mrs. Lawrence, I understand. I'm not saying that that's what he said. The question is this. If Mr. Dr Catt had said that to you, you would not have rejected his recommendation, would you?---No.
In re-examination, the plaintiff's evidence was:
Now, I want to ask you to maintain those assumptions as best as you can in your mind. I want you to assume that what Ms Kelly said to you yesterday was in fact a hypothetical proposition put to you by Doctor Catt. But he also said this: 'Some people who have a gall bladder removed don't require any pain relief, because they have no pain.' Would that have changed your answer?---Yes, I wouldn't have had an epidural.
If he stressed that without any negligence on the part of the anaesthetist, that is without the anaesthetist making any mistake at all, the needle or the catheter that was used in the epidural might puncture the sheath or, that is the covering of the spine, would that make a difference to your answer?
MR STRATFORD: So would that change your answer?---Yes, it would have changed my answer. I wouldn't have want (sic) it puncturing my spine.
If you were also told by Doctor Catt, in this hypothetical question, that the puncture could lead to headaches, nausea; loss of appetite; photophobia – that's difficulty with your vision; changes in hearing, for example buzzing in the ears and of depression, would that have changed your answer?---Definitely, I wouldn't have had an epidural if I'd known of that.
If in addition, you were told by Doctor Catt in the hypothetical question that you might feel miserable; often tearful; bedridden and a dependent if the headaches continue for any length of time; would that have changed your answer?---Yes, I wouldn't have had an epidural. I wouldn't have wanted all those things to happen to me.
If you were told by Doctor Catt that in severe cases – in rare cases, double vision may occur, would that have affected your decision?---I wouldn't have had an epidural.
If you were told that what might occur is in fact what you say occurred; that is 1, you had three days of severe headaches. Three days of moderate headaches and a further period of mild headaches, and you were told that you might have nausea and vomiting for a week or so. And that you might feel pain in the neck and back for a week or two and that you might get double vision and blurriness of vision lasting for months. And that you might get depression; would that have changed your answer?---Yes, it would have changed my answer. I would not have had an epidural.
What about if in the same consultation; the one in which Doctor Catt put this hypothetical question to you, what about if in that same consultation, he told you that there were risks associated with the general anaesthetic, risks associated with the general anaesthetic being in addition to the risks associated with the epidural; would that have changed your?---I would not have had an epidural.
What if Doctor Catt had told you that injections of Pethidine were the most common forms of pain control and that if the nursing procedures were properly followed, the risk of a miss-injection was practically eliminated. Would that have changed your view?---Sorry, could you repeat that?
Yes. What if you were also told by Doctor Catt that you could, as an alternative to an epidural, have an injection of Pethidine and that an injection of Pethidine was the most commonly used form of pain control and that if the nurse properly injected the Pethidine, there was little or no risk of a problem. Would that have affected your decision?---Yes. I, I wouldn't have had an epidural. I would have had the Pethidine and Pethidine alone.
What about if Doctor Catt, in this hypothetical question, had also said to you: 'Well you don't have to have an epidural. You mightn't even have to have an injection of Pethidine. You might get by on oral pain-killers. Would that have affected your decision?---Yes, I would have taken the oral pain-killers.
It appears from this that the plaintiff, if made aware that she may not suffer any pain after having her gall bladder removed, believed that she would not have had the epidural and would have preferred pethidine injections, or oral painkillers if she did experience pain. There is evidence from Dr Gillies that sometimes patients have had their gall bladders removed without experiencing any significant pain. However, this appears to be exceptional and commonly where, as in this case, there is an open form of removal (as opposed to laparoscopic) there is quite significant pain because of the involvement of the muscles of the abdominal wall which are important to many movements, particularly breathing. However, neither the plaintiff's expert Dr. Gillies, nor the defendant's expert, Dr. Brownridge, suggested that not providing any post-operative pain relief was a viable option. Dr. Brownridge's evidence, which I accept, was that such a suggestion was unreasonable and misleading:
It's important, I think, to distinguish between pain at rest and pain on movement. It's very common for people, even with painful conditions, to be at bed rest and yet have no pain, but as soon as the patient's asked to move, then that pain becomes very very evident. Now, with a gall bladder incision, it may be possible to lie in bed on pillows supported with reasonable comfort, but the problem comes when – when the patient wants to remove some sputum from the lungs or wants to turn over in bed or have a drink, a meal, then the pain is suddenly there and it's very excruciating. I would have thought to advise people 'you may have no pain at all' would be almost callous because it's so outside my experience at all anyone would have no pain after a cholecystectomy but on the other hand I guess there are certain individuals as very stoical people, but I'm not one and I suspect many of us here are not.
I do not consider that it was necessary for the defendant anaesthestists to have discussed this option with the plaintiff in the circumstances of this case, but if I am wrong about that, I do not accept the plaintiff's evidence that she would have chosen this course. As is evident from the plaintiff's evidence, what choices she would have made is very much coloured by her having experienced most of the possible complications from a dural puncture and particularly from the diplopia, which was very upsetting for her. The dangers of accepting evidence of this kind from the plaintiff uncritically have been recently addressed by the High Court in Rosenberg v Percival, supra. If this subject had been canvassed at all, there is nothing in the objective circumstances to indicate that the plaintiff would have preferred to take the slight chance that she may not experience any pain at all, against the compelling advantages of an epidural. She clearly is the sort of person who put her faith in her medical advisers and accepted their advice uncritically. She had had no experience with epidurals, yet asked no questions about the procedure. Her previous medical history, as recorded by Dr. Catt, is that she had had severe nausea and vomiting when administered general anaesthetics on previous occasions. This did not seem to have concerned the plaintiff at the time she saw Dr. Catt and that is a matter to be borne in mind when considering the options of pethidine or some other opiate for post-operative pain relief. There is nothing in the plaintiff's history to suggest that in 1994 she was not a person of normal fortitude. She drove a car, for example, notwithstanding the evident risks involved. There is nothing to indicate that she had a morbid fear of headaches. In her evidence, the plaintiff said that, if told that the risk was that of a dural puncture, this would have been important enough for her to have refused the epidural as "I wouldn't have wanted it puncturing my spine". This shows that the plaintiff, even at the time of trial, misunderstood the nature of the procedure. Of course, it is not the spine which was liable to be punctured, but the dural sheath. Possibly the plaintiff was indicating a fear that there was a risk of interfering with nerves in the spinal chord, but the evidence is that there is no such risk because the insertion of the catheter is in an area below the spinal cord. The procedure is also very commonly preformed and it is also common for the dura to be deliberately punctured as part of a normal medical procedure, for example, to sample cerebrospinal fluid for diagnostic purposes, or in the case of certain myelograms and in the treatment of cancer by chemotherapy. I do not accept that, if this fear had existed in 1994 and the plaintiff had expressed her fear to Dr Catt, that she would have refused the procedure; a simple assurance from Dr Catt would easily have dealt with that. I note also, that the plaintiff in her evidence apparently attached no importance to the possibility of mild to severe headaches. The plaintiff did cavil with Dr. Catt's evidence that she told him that she smoked 25 cigarettes a day, her evidence being that she smoked 15-20 cigarettes a day, but I have no doubt that she told Dr. Catt that she smoked 25 per day. That is the level of consumption recorded by Dr. Catt on the anaesthetic pre-operation sheet and I consider that that is more reliable than the plaintiff's memory. In any event, whether the plaintiff smoked 15-20 cigarettes or 25 cigarettes a day would not have mattered. The significance of her smoking habit has already been touched upon. It was clearly an important factor in advising the plaintiff to have the epidural and I consider that the plaintiff would have given more weight to the risks of chest infections than to the other alternatives.

I conclude that if the plaintiff had been properly advised by the defendant anaesthetists, the plaintiff would have chosen to have had the epidural in any event. In reaching this conclusion, I do not consider that it is probable that the plaintiff would have had any fears about being told of the possibility of a dural puncture, but that, in any event, if she did have such fears, those fears would have easily been explained to her. In these circumstances it is not necessary to consider loss of a chance as a possible basis for liability. The plaintiff's action against Drs Catt and Richardson for failure to advise of the risks must therefore be dismissed.
I turn now to consider the action against the Northern Territory as the body responsible for the alleged negligence of the employees of the Alice Springs hospital (including Drs Catt and Richardson) in relation to her post-operative care. So far as Dr. Catt is concerned, he was not involved in the plaintiff's post-operative care and to the extent that there was a duty placed on an anaesthetist to care for the plaintiff post-operatively, that duty fell upon Dr. Richardson as the relevant anaesthetist. At the time of the operation, Dr. Richardson was not aware that he might have punctured the dural sheath. Usually, when a puncture occurs this is caused by the needle and results in CSF fluid spray which is quite noticeable. Dr . Richardson's evidence was that although he made two attempts to insert the catheter, this is not unusual in itself and he did not "get the big squirt back of the CSF". For this reason, when the plaintiff was later referred to him again, he concluded that it must have been the catheter and not the needle which caused the puncture. After the operation, Dr Richardson observed the plaintiff in the recovery ward and later the same day, after the plaintiff had regained consciousness, saw her in the surgical ward. At this time, he gave the plaintiff a test dose of local anaesthetic through the catheter and as she had good relief, he ordered an infusion using Fentanyl and Bupivacaine. He noted: "Good relief. For infusion at 1630. N.B. hypotension, nausea, itch possible side effects. Please notify anaesthetist if any problem occurs.". According to the notes, there was no complaint of significant pain at this time (which was 1340 hours). Ms Sarah Tozer, who was a registered nurse on duty that afternoon, recorded that at 2 p.m. on 27 January, the plaintiff was in pain and she administered intramuscular analgesic which provided some relief. The next note is recorded as being at 1800 hours when her pain score level was recorded at 2. (Patients are asked to score their pain levels between 1 and 10. A level 2 is "very little".) Later that night and into the following day, the pain charts vary between 7 and 3, with most recordings at the 4 level. There is no record of the plaintiff complaining on 27 January of extremely severe head, neck and back pain. If such a complaint had been made, Ms Tozer said that she would have noted it.
The plaintiff's evidence is that she had little recollection of how she felt on 27 January, but the next day she had a thudding pain at the back of her head, pain in her neck and back, nausea and vomiting. She described the pain as extremely bad and continuous. She said she also had pain at the site of the operation and was given a pethidine injection which assisted her, but did not relieve her head pain.
I have heard evidence also from two other registered nurses who were also responsible for the plaintiff's post-operative care, Ms Anne Fogarty and Ms Samantha Arbuthnot and who were involved between 27 and 28 January. None of the three nurses could recall complaints of severe headaches or of pain in the neck or back and all said they would have recorded it had it been made known to them.
According to the evidence of Dr. Richardson, he next saw the plaintiff late on the afternoon of 28 January; the notes record this as being at 1555 hours. He said he asked the plaintiff about her pain and she indicated to him that she had no complaints and she looked relaxed. He said that if there had been a complaint of headaches he would have enquired whether it was affected by posture or if there were symptoms associated with a fever. I am satisfied that up until then, the plaintiff's pain management was well controlled and that there were no signs of an epidural puncture and, in particular, no complaints of severe headache. Dr. Richardson ordered the epidural catheter to remain in place for another day before removing it. On the facts I have found, there was no reason for Dr. Richardson to see the plaintiff again unless complications arose. I should mention that the plaintiff was nauseous, but this is a common side effect of the general anaesthetic and did not imply a dural puncture. The evidence is that the plaintiff was given an appropriate drug regime to control her nausea.
The first mention of headaches in the hospital notes is on 29 January where there are two notations by different nurses of a complaint of headache. There is nothing recorded to indicate how severe the headaches were. The notes indicate that during the period 29 January to 3 February, the plaintiff was able to shower, able to mobilize well, was ambulating in the ward and in the hallway and was cheerful. The plaintiff was seen by Dr. Parameswaran on 31 January. There is no complaint of headache or neck pain recorded. The plaintiff's evidence is that she had continuous and severe headaches throughout this period which did not resolve until just before she was discharged from hospital on 9 February. She also stated that she began to experience double vision on the third day after the operation, i.e. 30 January, and was referred to Dr. Win Law a couple of days later. The notes record that the plaintiff saw Dr. Parameswaran on 2 February and that she complained to him of neck pain. Dr. Parameswaran referred her to Dr. Richardson. The consultation request, which is dated 2 February 1994 and marked "Non Urgent", refers to "complaining of headache and neck pain post-epidural". There is nothing so far to indicate that the plaintiff's headaches and neck pain were severe, or for that matter, continuous. I note also that according to the hospital records, there is no complaint of blurred or double vision recorded until 6 February, when the nursing notes record that she complained of blurred vision and diplopia in her right eye upon walking, although she told Dr. Parameswaran that same day that she had first noticed it two days previously, i.e. 4 February. According to Dr. Win Law, he first saw the plaintiff on 7 February 1994. I conclude from this that the plaintiff (as perhaps is to be expected) is not a reliable historian and has collapsed the events in her mind over a much shorter period than in fact occurred and that her symptoms of headache and neck pain were not as severe as she now claims.
According to the evidence of Dr. Richardson, which I accept, he saw the plaintiff on 4 February. There was no complaint to him of diplopia or blurred vision and none is recorded in his notes. However, he did record two complaints. First, back pain in the upper lumber and lower thorasic region, which he considered to be an aggravation of a prior soft tissue strain and, secondly, neck pain which was relieved by panadol and rest. He considered that the pain was not severe and was probably related to the epidural catheter. In evidence, he said that because the neck pain (or occipital pain) was relieved by rest and aggravated by sitting up, he thought the most likely cause was dural puncture and he advised bed rest and panadol and told the plaintiff it would resolve itself within a few days.
The evidence does not satisfy me in this case that Dr. Richardson ought to have known of the existence of dural puncture headaches before he saw the plaintiff on 4 February. If he had been advised of the headaches earlier, it might be that a diagnosis of a dural puncture may have been made earlier. According to Dr. Gillies, dural puncture headaches usually appear within two days of the puncture, so this fits well with the record of a complaint of headache on 29 January. In 1994, the recommended treatment for dural puncture headache was rest in the recumbent position, increased fluid intake and simple analgesics such as aspirin or paracetamol. The plaintiff complains that after 29 January, she was encouraged to be out of bed and walking. However, Dr Gillies also said that more recent literature has challenged the value of recumbancy. I note that, according to Dr. Brownridge's report (Ext D1) at least five studies have concluded that bed rest does not reduce the incidence of headache after accidental dural puncture, but merely delays its onset and that current opinion (including the opinion of a world authority on the subject) does not support enforced recumbancy as an appropriate treatment. Also, the evidence does not satisfy me that lack of bed rest has anything to do with the onset of diplopia. That seems to be the view of Dr. Gillies (although his evidence is at times contradictory); but more importantly, I accept the opinion of Dr. Brownridge on this point where he says in his report (D1):
Since the symptoms of headache and cranial nerve palsy are precipitated by the same mechanism, however, it is unlikely that bed rest would have any more favourable influence on the increase of diplopia than it does upon headache.
I am, therefore, unable to conclude that there is evidence of any negligence in the treatment of the plaintiff by Dr. Richardson or by the nursing staff at the hospital.
The evidence is that Dr. Win Law, the senior specialist opthalmotogist at the hospital, first examined the plaintiff on 7 February 1994. She complained of double vision. After taking a history and performing some tests, Dr Win Law concluded that she had right lateral rectus palsy due to the dural puncture, which would resolve with time and without the need for further treatment. She was later seen by Dr. Win Law on a number of occasions in February, March and April 1994, during which her diplopia gradually improved until, by 15 April, Dr. Win Law concluded that her eyesight had returned to normal. The plaintiff also consulted an optometrist, Mr. Jackson, whose report (Ext D15) supports the findings of Dr. Win Law. She was also referred to a neurologist, Mr. Richard Burns, whom she consulted at the hospital on 23 June 1994. At that time, Mr. Burns was of the view that she had "full objective recovery but still has some subjective symptoms which will eventually clear". I am not satisfied that the plaintiff was not given adequate and proper treatment for her diplopia or blurred vision by the servants and agents of the Northern Territory.
There is evidence that the plaintiff developed psychological problems following the unfortunate side effects which she experienced following the operation. No case was developed that these problems should have been anticipated or identified by the defendant's servants and agents whilst she was being treated at the hospital and that the defendant was vicariously liable for any breach of duty in that respect. It was put by the plaintiff only that the psychological problems were part of the damage which resulted from the defendants' lack of care.
The result is that the action must be dismissed. I will hear the parties as to costs.
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