LUCAS v HILLIER & CARNEY
[1998] SASC 38
Civil
Millhouse J. This action is brought pursuant to section 50 of the Safety Rehabilitation and Compensation Act 1988 (Cth). Comcare initially brought the action standing behind the plaintiff and conducting the litigation on his behalf. It was entitled to do this under section 50. Comcare has paid all the plaintiff’s medical bills and stands to recover from any damages awarded. During the plaintiff’s cross-examination he admitted having told lies on oath in examination in chief about his condition and capacity. He refused, after I had spoken to him, to answer a number of questions. I made an order that he should be represented in his personal capacity separately from the interests of Comcare. Thereafter Mr Martin Frayne appeared for the plaintiff in his personal capacity while Mr Robert Cameron with Mr Peter Allen continued to represent him in right of Comcare.
This action involves a claim for damages for negligence, by the plaintiff, Mr Anthony Lucas, in respect of an operation carried out by both defendants on the plaintiff’s lower lumbar spine in early May 1991.
The plaintiff was born in Manchester in 1947. He left school at 15 or 16. He married at about age twenty and had two sons. He emigrated to Australia in 1971. He always was engaged in heavy physical work. He has an extensive back injury history. The first injury to his back was whilst playing soccer in the early 1960’s, when he was kicked in the back. This did not produce any significant residual problems. After coming to Australia he continued to engage in ‘heavy work’. He worked in quarrying, the tyre industry and up until his retirement, the Australian National Railways.
In the mid 1970’s, Mr Lucas had a back operation at the Queen Elizabeth Hospital. This involved a simple discectomy. He was then able to return to heavy work as a driller. He joined the Australian National Railways in 1981 and suffered significant back injury on 28 September 1982 whilst lifting a 94lb insulation joint. The consequent operation, a L4/5 microdiscectomy, was undertaken by Mr Brian North on 2 March 1983. This left Mr Lucas unfit to engage in heavy work. On 4 January 1985 he was retired from the railways and since then has been receiving weekly payments of compensation from Comcare Australia. Comcare has paid his medical and associated expenses all this time. I heard no direct evidence of this but it appears that Comcare has paid any bill sent to it without many, if any, questions asked.
Since he last worked with ANR he has become a "professional invalid" (an expression used by several witnesses), smoking and drinking too much and spending a lot of his time going to doctors and having treatment in hospitals. For the last fifteen years he has lived in a caravan with Sandra Stevens at the Darlington Caravan Park. For extensive periods of time Lee Stevens, the daughter of Sandra Stevens, also lived with them. Mr Lucas said he spent his time yabbying down in the Sturt Creek nearby and watching the cricket on television. Since 1986 Dr Jana Kubichek of the Sturt Clinic has been his general practitioner. For a lot of the time he drank so much as to be an alcoholic. At times he went on binges, he said to kill the pain he had.
In the later 80s he saw several surgeons, among them Mr Eriksen and Mr Middleton. He was having severe pain in his back. Mr Middleton gave him an epidural injection but it did no good.
Mr Eriksen referred him to Mr Lipert, another surgeon in Adelaide. Mr Lipert arranged physiotherapy and hydrotherapy and gave him an epidural. He was in the Memorial Hospital for two days. There was no improvement. The pain was in his back and increasingly down his right leg. He had had operations before and they had pretty well fixed him up. The plaintiff became increasingly anxious to have an operation on his back to get rid of the back pain and the pain in his right leg. He went the rounds of doctors asking. He saw Mr North again on 26 July 1990 and was disappointed when he later had a letter from him:
"Dear Tony,
I am returning your x-rays which I hope you will keep.
I have had a good look at them and I am doubtful whether I could improve your work capabilities by further surgery.
Nevertheless, please do not hesitate to come back and see me if you would like to further consider the surgical option."
He really did want an operation. He spoke again to Mr Eriksen who sent him to Mr Lipert. Mr Lipert gave him another epidural block and told him there was nothing else he could do. Mr Lipert referred him to the second defendant, Mr Paul Graham Carney, neurosurgeon, whom he saw in his rooms at the Memorial Hospital on 21 January 1991. Mr Carney examined him and pulled his right leg back. This caused severe pain.
Mr Carney said he was prepared to operate - just what the plaintiff wanted to hear! The operation required a combined procedure involving Mr Carney and Mr Terence Mark Hillier, orthopaedic surgeon, the first defendant. The operation was called a "Luque fusion" (named after the originator of the procedure). The plaintiff said he asked Mr Carney what the success rate was. Mr Carney said 80% which the plaintiff thought good. Before the operation could be done the plaintiff would have to be examined, Mr Carney said, by Mr Hillier.
The plaintiff's back got worse after Mr Carney's examination. So bad that he was admitted to the Memorial Hospital on 2 February 1991 under Mr Hillier's care. Mr Hillier had a letter from Mr Carney saying that the surgery was necessary, when he saw the plaintiff. Mr Hillier did not examine him. However the plaintiff was put into traction for a couple of weeks. Mr Hillier called in nearly every day. Mr Hillier gave him a pamphlet at some stage explaining what a Luque fusion was but the pamphlet did not canvass the chances of an adverse outcome. The traction made the plaintiff a little better and he was discharged to the care of Dr Kubichek. He continued the traction at home. It didn't do much good. He was keen to have the operation as soon as possible. He saw Mr Hillier who said the operation would be in May and that it would eliminate the pain in his back and right leg. In the month before the operation the pain got worse and worse.
On 6 May 1991, Messrs Carney and Hillier, the two defendants, performed a combined nerve clearance and luque fusion on Mr Lucas. Mr Carney’s part of the operation was a right-sided procedure involving the L4/5 and L5/S1 disc areas. Mr Hillier’s part of the procedure involved inserting into the spine on either side, two plates and three screws through the pedicles of the spine. There was clearance and removal of part of the laminae at L5 and this part of the operation alleviated the problems in the right leg which had been ongoing up until that time.
Following the operation, the plaintiff said he woke with excruciating pain in the other leg, his left leg. He described it as "if someone had poured boiling water down the inside of his leg". He asked what was going on? He was told not to worry, "Everything will settle down." Two days later, on 8 May, the left leg still felt as though it were on fire and it began to discolour, turn purple and swell.
When he saw Mr Carney, the plaintiff asked him: "What the Hell's going on?" Mr Carney replied, "I'm not taking the blame for this stuff up. It was Hillier's fault." When he saw Mr Hillier the plaintiff told Mr Hillier what Mr Carney had said. Mr Hillier replied that it was all in his head. The plaintiff was very discontented. He thought he was being taken as a joke. Dr Kubichek came in to see him and he talked to her.
Miss Jo Richardson gave him physiotherapy. He found when he tried to walk that he could not control his left foot. He developed symptoms associated with a condition known as ‘footdrop’, where the toes keep dropping forward causing him to trip over. By 21 May 1991 he was very frustrated, upset and he burst into tears.
A second operation was undertaken on 22 May 1991 by Mr Hillier, mainly to explore and to see if there were any reasons why Mr Lucas was in such pain. This exploration did not identify any obvious explanation, nor did it relieve the symptoms of pain. He told Mr Hillier, "You didn't fix me up." Mr Hillier replied, "Well, I made an adjustment with the screws."
All this time the patient was being given pain killers.
On 29 May he transferred from the Memorial Hospital to the Griffith Hospital. He stayed there until 11 June. The left leg remained purply pink, swollen and burning.
On 11 June he went back to the Memorial Hospital. Some days later he had a third operation in which the plate on the left side of the spine and the three screws holding it in place were removed. It still made no difference. The pain in the back and left leg persisted.
After the third operation the plaintiff shared a room with others. While he was there Mr Carney came in. A morphine pump was mentioned for the first time. The plaintiff said to Mr Carney, "What are we going to do about the pain? Its driving me crazy. I just can't handle it any more." Mr Carney replied, "In my opinion the screw went through your nerve root, that's what's causing your chronic pain when operated on by Mr Hillier. That's where your chronic pain is coming from." Then Mr Carney suggested the morphine pump.
The plaintiff's account of this conversation was confirmed by the other patient who was sharing the room with him at the time, Mr Clive Mount. Mr Mount was in the Memorial Hospital under the care of Mr Carney who came to check him every day. On Mr Mount's last day in hospital he noticed the plaintiff was "uptight" about his condition. Mr Mount was asked to recount what he heard of the conversation between the plaintiff and Mr Carney:-
"Q.... he asked Mr Carney what was going on with his physical well-being or what was the problem he was encountering. Mr Carney had some x-rays and he indicated - I heard him say to Mr Lucas he said you had a plate put in at the fourth and fifth level of your back and the reason for your leg being inflamed and being in pain is the screw on the left side has touched or gone into the nerve route on the L4.
Q.Was there any discussion about the topic of possible treatment.
A...... Yes, Tony replied he didn't want Mr Hillier anywhere near him and he would like Mr Carney to take over care for him. Mr Carney talked about morphine pump being fitted..."
I accept Mr Mount as truthful and as having given an accurate account of what he had heard.
In all the plaintiff spent four and a half months in hospitals when he expected to be in about 10 days. Although the pain in his right leg was gone it had been replaced by even worse pain in his left. Nothing the doctors did made it any better. The plaintiff was having lots of pain killers to reduce the pain. He was quite incapacitated. No one seemed to be able to help him. The saga went on and on. Eventually a morphine pump was fitted, on 10 November 1992. In the meantime the pain had continued, so too visits to doctors to see if anything could be done and massive amounts of drugs, such as pethidine, to reduce the pain.
The first pump was in for about three years and was replaced. Apart from an unfortunate few months when it got a kink in it so that the morphine didn't get into the plaintiff's system, the pump has controlled the pain but not eliminated it: made it bearable anyway.
I shall stop the narrative at this point and resume it later when I assess damages. So far I have given the plaintiff's account of his life and what happened to him and how he felt. I have done so because I accept the account as accurate (apart perhaps from some of the actual wording of conversations, although I certainly accept the substance of them).
I have no doubt that something wrong happened at operation on 6 May 1991. The operation was a success to the extent of getting rid of the pain in the right leg and fusing three vertebrae of the plaintiff's back. Disastrously, though, the pain in the right leg was replaced with pain, at least as bad, if not worse, in the left leg. Up to the time of that operation I accept the plaintiff as giving a truthful, accurate account of what happened and of how he felt.
That's about as far as I can go in accepting him, though. My firm impression is that he has taken advantage of the genuine pain and incapacity which he suffered, to magnify, to exaggerate, both the pain and incapacity, in the hope of gain of one kind or another, be it financial or to be given drugs which he craves. He has had so many pain killing drugs over so long, well before May 1991, that he has an addiction. By magnifying his pain and disabilities he has manipulated others for his own benefit.
I shall have to return to that when I consider damages.
In the meantime I shall go back to the beginning of 1991, to canvass the various issues which came out during the four months or so of hearing. The plaintiff alleges the following grounds for negligence;
That (a) Mr Hillier did not examine the plaintiff prior to the operation on 6 May 1991 and failed to obtain a full and proper history.
(b) Neither Mr Hillier or Mr Carney informed the plaintiff of the
risks or adverse consequences of the operation which was
undertaken.
(c) It was inappropriate to have undertaken the operation at all.
(d) During the operation of 6 May 1991, Mr Hillier damaged the
lower lumbar nerve roots. It being alleged that a pedicle screw
protruded too far beyond the cortex and as a consequence
damaging a nerve root. That Mr Hillier ought to have
undertaken certain check procedures during the course of the
operation.
(e) Mr Carney failed to remain during the course of Mr Hillier’s
part of the operation.
(f) That both Mr Hillier and Mr Carney were dilatory in
responding to the complaints of the plaintiff immediately
following the operation. That the offending plate and screws
should have been removed much earlier than they eventually
were in June.
Broadly speaking, these grounds fall within three groups - pre-operation, operation and post-operation. The plaintiff alleges negligence against both defendants for the way in which they prepared for the operation, for the way in which it was performed and for the way in which he was looked after subsequently.
The operation was a combined procedure. Mr Carney, the neuro-surgeon, performed a decompression at the levels L4/L5/S1 on the right side of the spine. The aim was to relieve, indeed to get rid of, the patient's pain in his right leg. Because the operation involved the removal of a good deal of bone and tissue there was risk that the spine would become unstable. To avoid the risk Mr Hillier fused the vertebrae at those levels, L4/L5/S1. He did a Luque fusion. The Luque fusion involved fusing the spine at L4/L5/S1 with two metal plates, one on each side of the spine, the plates themselves being held in position by three screws, one each inserted into the pedicle of the respective vertebra. A pedicle is a horizontal shaft of bone which projects at about right angles from the vertebral body. The screw must be kept within the pedicle and this of itself requires skill and care, for the pedicle is quite narrow. To get a firm grip the screw (which has a dome on its tip) must penetrate the apex of the pedicle but not by too much. This is necessary to provide the extra support required to hold the plate in place.
The primary issue here is whether one of the pedicle screws protruded too far and either penetrated or more likely impinged on a nerve root causing the awful pain in the plaintiff’s left leg. The most likely screw to have caused this damage is that at the S1 level. The issue needs to be resolved on the balance of probabilities.
I should mention something which is obvious on reflection but which I realized only during the hearing. Just as each of us has the same facial features - eyes, nose, lips, mouth and so on - each of us is a little different so that each face is unique. So with the rest of the body: each of us has a spine, vertebrae, and pedicles, each of us has nerves and nerve roots. Yet the shape, length and so on of the spine and the pedicles, the configuration of the nerves and nerve roots, are a bit different in each of us. In short, each of us has a unique body. All the diagrams from Gray's Anatomy and the other books of anatomy with extracts from which I was bombarded, are just that. They are diagrams but do not represent exactly the anatomy of any individual.
The plaintiff was ‘keen to have the operation’, indeed one may say he was desperate to have it. He had had several quite successful back operations in the past and had convinced himself that the only relief he would get from his right leg and back pain was through another operation.
The medical profession was reluctant. The plaintiff shopped around until he found surgeons who were prepared to give it a go, Messrs Carney and Hillier. Eventually, because of his pain and incapacity even his general practitioner, Dr Jana Kubichek - I had the strong impression from her in the witness box that she does not have much faith in surgeons except as a very last resort - came to the conclusion that the operation was justified.
I think none of the medical men called either by the plaintiff or by the defendants, apart from the defendants themselves, said that he would have done the operation. The poor state of the plaintiff's back by 1990/1991 meant that this was ‘salvage surgery’. The chances of success with salvage surgery are much lower than surgery for the first time on a patient. Although none would have done the operation himself, none criticised the defendants for taking the opposite view. To be prepared to undertake it was not, in itself negligent. It was high risk but not negligent. On the other hand, the plaintiff was owed a full and detailed explanation of the risks and the chances of success and failure but I do not think he got it. He went into the theatre much more optimistic than he should have been.
The plaintiff saw Mr Carney on 21 January 1991. Mr Carney examined him for about half an hour and took a history. So far so good, but what Mr Carney did not elicit from his patient was his history of drinking and smoking. Mr Carney said that Mr Lucas did not volunteer it and it did not occur to him to enquire. I find this quite curious, to the point of serious carelessness: particularly whether the man smoked or not was a most relevant consideration.
The plaintiff asked Mr Carney what were the chances of success. He left the consultation with the firm impression - I accept that he was being truthful about this - that the chances of success were 80/20 in his favour. Mr Carney vigorously denied that he ever said such a thing and so did Mr Hillier deny ever having said it. In examination in chief Mr Carney was asked what he told the plaintiff:
“Q.... Did the topic of risks and benefits of such a procedure come up in the course of your first consult with him.
A.Yes
Q...... Are you able to tell us what you told him about that.
A. I told him in my view there was about an 80 percent chance of improving him, that the remaining 20 percent there was some risk he would be no worse, no better. But there was also a significant risk that he might be made worse by having a procedure of this sort.
Q...... Did you expand on what you meant by being worse.
A.I mentioned that in my understanding there was approximately a 7.5 percent risk of some damage to a nerve root in a procedure of this nature.
Q...... Were you specific as to whether that was in the course of the neuro-surgical component of surgery or the orthopaedic component or both.
A.Both
Q...... Did you mention any other risks.
A.I mentioned the risk of infection which run as somewhere around one percent for procedures of this nature and is quite a serious complication. I mentioned the general risks of having any kind of major surgical procedure which are remote risks, nevertheless include some risk to life.”
Maybe this is what Mr Carney did say, or something like it, but I am satisfied that the plaintiff came away with the idea firmly in mind that there was an 80% chance of success - by that he thought complete success.
The plaintiff contends that fully informed consent was not obtained. This I do not accept. While the plaintiff came away rightly or wrongly with the impression of an 80% chance of complete success, I do not believe that this was a determining factor for the plaintiff as to whether he would undergo the operation or not. Mr Hillier’s account of his conversation with the plaintiff is that he took a model of a spine to the plaintiff’s hospital bed and explained the operation to him. There is uncertainty surrounding what risks and percentages were mentioned by the defendants. However, it does not matter. I find that the plaintiff would have undertaken the operation even if he had known the risks were much greater.
Mr Carney did not see the patient again for some time and it was Mr Hillier who admitted him to the Memorial for traction at the beginning of February. It was summer after all and I think Mr Carney may have gone away.
The defendants had by this time carried out some eighteen or so of these combined operations. This was to be the last. Mr Hillier saw the plaintiff several times before 6 May 1991 but, he admitted, he never gave him a physical examination. Nor does he seem to have discussed what had to be done, with Mr Carney. Other of the medical men were asked about this lack of physical examination and each, without exception, said that a physical examination should always be undertaken before an operation. I am satisfied that the failure by Mr Hillier to undertake a thorough physical examination of the plaintiff at some time between the beginning of February and 6 May was very bad medical practice indeed. There should have been an examination and there was no excuse for not doing one. Nor did Mr Hillier himself take a history from the plaintiff.
My strong impression is that both defendants were quite cavalier in their attitude to the plaintiff at this stage and right through this sorry tale. While I have been critical of the defendants, I cannot find that the failure to take a full medical history, examine or adequately inform the patient of associated risks has amounted to negligence. None of these acts amount to negligence that has caused the plaintiff’s condition after the operation. I believe that the plaintiff was so desperate to undergo the operation that he would have done so even if he had realized the risks were higher and even though he had had less attention than he should have had from his medical practitioners. I accept that in different circumstances the failure to examine a patient, take a proper medical history and adequately inform of risks could each amount to negligence but not here.
I come now to the operation itself. It was as I have said, in two parts, or rather there were two operations consecutively performed. Mr Carney did his first. He then left the operating theatre. There had been an allegation that he was negligent for not staying for the whole thing but counsel for the plaintiff abandoned that, rightly, during the hearing. Before I leave Mr Carney's part I should say that the proof of the pudding is in the eating. Mr Carney operated on the right side of the plaintiff’s spine. The plaintiff's right leg pain had disappeared after the operation. Mr Carney's part was a success. The unanimous opinion of the experts - indeed the plaintiff said he sued Mr Carney only ex abundanti (although he certainly did not use that term!) - was that whatever happened on the left side could not have been caused by anything Mr Carney did. So far, I could not find that Mr Carney had been negligent in a way leading to the plaintiff's post operative condition.
Mr Hillier described in examination-in-chief the operation as one carried out with proper care and skill. He detailed how the screws went though the pedicles far enough to give a firm grip. He indicated that he was aware of and careful not to have the screws protrude too far. According to himself he did everything he should have done and did it correctly.
Yet something went wrong. The plaintiff woke up with no pain in the right leg but agonising pain in the left. The plaintiff had had a history of left leg pain. He described it as a mild throbbing and it was of a very different character and degree to the severe pain being experienced at this time.
Mr Cameron cited Forst's Case to me (Adelaide Stevedoring Company Limited v Forst [1940] 64 CLR 538. It is apposite. The widow of a workman who had suddenly collapsed and died after unusually strenuous exertion at work sued for compensation. The question was whether it could be inferred that the strenuous exertion caused the collapse. I cannot help quoting from the Reasons of Rich ACJ (at 562-563):-
" The special magistrate's award refused compensation to the now respondent, the widow of a deceased workman who collapsed while at work and died. A post-mortem examination disclosed evidence of a coronary thrombosis which would cause occlusion and consequent cardiac insufficiency. Having heard an abundance of medical evidence from witnesses whose attainments and eminence neither were nor could be challenged, but whose opinions exhibited no greater degree of unanimity than is commonly met with in other departments of abstruse knowledge and of scientific research, the learned magistrate arrived at a negative conclusion. ...
The learned judges of the Full Court considered the whole of the medical evidence, as, under the Act, they are entitled to do, and, having described the duty of the court to arrive at some conclusion on an issue of fact, however 'difficult or invidious' it might be made by the state of scientific knowledge and opinion, their Honours proceeded, by a course of reasoning which combined commonsense with the application of logic to physiological facts, to infer 'on the preponderance of probabilities' that the thrombus was precipitated as the result, in part, of some unusual exertion undertaken by the workman before his collapse.
In my opinion the conclusion of the Full Court is correct. I am greatly impressed by the sequence of events."
Much like the present case. The plaintiff went into the operation with no pain in the left leg. He came out of it with excruciating pain in it. Something must have gone wrong.
During the hearing constant reference was made to the Memorial Hospital notes. A note at 1415 hours on the day of operation was, "Uneventful recovery. Leg pain a problem ...". The next note of pain is at 2130 hours on the 7th, "...sleeping easily however says his pain is severe."
In all fairness to the defendants I accept that pain in the first two days was to be expected and was not cause for alarm.
On the other hand the plaintiff insists - and I accept him - that immediately after the operation the pain was in the left leg. I just do not think the plaintiff shrewd enough, or if you like, cunning enough, to have worked out so quickly and in the slightly dopey state he must have been in, the ruse of complaining about the other leg once the right one was fixed. His complaints of pain in the left leg were genuine.
A great deal of time was taken up trying to convince me of one cause or another for the problem. I am glad to say that I have come to a firm conclusion.
On 10 May 1991 Dr Geoffrey Parker who worked for the wellknown radiologists, Perrett & Partners, wrote a report on the post-operation x-rays he had done:
"LUMBAR-SACRAL SPINE
The appearances following luque spine fusion between the L4 and S1 levels noted. The vertebral alignment is satisfactory. The position of the fusion device is satisfactory. The right sided sacral screw has penetrated the anterior cortex of the sacrum for a distance of approximately 7mm."
Dr Parker gave evidence for the defendants. He said, straight out, that he had made an obvious mistake: the penetration could not possibly be as much as 7mm. I asked Dr Parker about this:
"Q.... I still don't understand how you could have made what seems to have been an elementary mistake.
A.As I explained to your Honour the other day, I looked at the film and talked myself out of what I believe to be the correct interpretation.
Q...... How did you talk yourself out of it.
A.I attempted to assess the film to see if it was a lateral film. To do that, I looked for the two white lines, which are the iliopectineal or iliopectinate lines, and I thought that they were superimposed or close to superimposed. In fact I chose the wrong lines and therefore may have come to the wrong conclusion.
Q...... I think we have been over this before, but it was an obvious mistake, wasn't it.
A.I think in retrospect and having regard to subsequent film, obvious mistake.
Q...... That anybody would pick up.
A.Yes your Honour.
Q...... When I say anyone would pick up, I mean any radiologist or surgeon.
A.I believe so."
And yet he did nothing to correct the error! Apparently he did not mention it to anyone else! Dr Parker said that his usual practice was to write an addendum if he picked up that he had made a mistake. He cannot remember whether or not he wrote an addendum this time. No addendum has been found. I do not believe that Dr Parker ever wrote one. His "mistake" (if it were one) remained uncorrected.
What would be the significance of a penetration of 7mm? To a layman this is a tiny distance but not to a medical practitioner. It would be far too great a penetration. The evidence of many experts supports the view that a penetration of 2mm might be acceptable but any more brought the risk of impinging on the nerve root.
But wait a minute! Dr Parker is talking of the "right sided sacral screw". Mr Lucas' problem was on the left side. The tragedy of this case is that at no time was any x-ray, MRI or CT scan done which shewed the position of the tip of the left sacral screw. If we knew definitely just how far that screw had penetrated the question of what happened probably would have been answered with confidence long ago.
The only thing the experts have been able to do has been to calculate from the position of the right screw, how far the left screw must have gone. Each screw is 45mm long. Given that the procedure is supposed to be symmetrical, the obvious answer is that it was the same as on the right - 7mm - far too far.
In cross-examination Mr Hillier agreed that the left and right screws would have penetrated the anterior cortex of the sacrum by a similar distance:
“Q.... You would agree that it is a fact that, for whatever distance it penetrated the anterior cortex of the sacrum, that the right sided sacral screw did penetrate the anterior cortex of the sacrum for a distance.
A.Yes.
Q...... Whatever that distance was, the left sided screw penetrated the anterior cortex of the sacrum, on your evidence, for a similar distance.
A.For close to a similar distance, less than most likely.
Q...... There can be no doubt in your mind now about that.
A.No doubt.”
In rebuttal the plaintiff called - we took his evidence by video link - Dr Asif Saifuddin, Consultant Radiologist, The Royal National Orthopaedic Hospital Trust, Brockley Hill, Stanmore, Middlesex. Dr Saifuddin has had this position for the last four years and sees 10 to 15 cases of spinal imaging and radiology per week. I found Dr Saifuddin to be a most impressive witness whose evidence and opinions I much preferred to that of Dr Parker who did not impress me.
With regard to the right-sided screw, Dr Saifuddin after examining two x-rays, an AP (anterior posterior) view and a lateral view taken on 10 May 1991, expressed the view that the dome and two turns of the screw had gone beyond the mid-line of the sacrum. He was critical of Dr Parker’s use of iliopectineal lines to determine rotation, finding it difficult to determine which of the various white lines on the x-ray had to be imposed. In his examination in chief, Dr Saifuddin was of the opinion that ‘the right-sided S1 screw must have penetrated the anterior cortex of the ala of the sacrum’.
As for the left-sided screw Dr Parker expressed the opinion that it did not penetrate the anterior cortex of the sacrum at all (in other words did not come through the front of the sacrum, the bony plate at the base of the spine) in front of which a nerve root passes. Dr Saifuddin on the other hand said that it was not possible to be definite one way or the other on the position of the screw based on the x-rays and scans he had before him. He felt that he could not be sure that the left-sided pedicle screw did not penetrate the anterior cortex of the sacrum. He disagreed with Dr Parker. I prefer the opinion of Dr Saifuddin.
Dr Saifuddin when examining an MRI scan made the observation that the ‘left pedicle screw is pointing directly at the L5 nerve root’. He explained that if the nerve continued in the direction it was taking that a screw would irritate the nerve even if it penetrated a millimetre of the sacrum. On the radiological material before the Court, it was impossible to track the direction of the nerve root as the MRI scan had only mapped half of the offending screw. Nevertheless, this combined with another observation of Dr Saifuddin seem to indicate that the screws were placed in at an angle which was most likely to injure a nerve. This observation came out in a conversation between myself and Dr Saifuddin:
"A..... My understanding of the situation, and I am now showing you again slide 23 of the CT scan, is that there are two safe, accepted techniques for S1 pedicle screw fixation. The first is with medial angulation in such a fashion and the second is with fairly exaggerated lateral angulation in this fashion here. I am personally not aware of the literature which suggests that to place a screw directly in this direction is acceptable.
Q.Does it follow from that that what was done here is not acceptable.
A.. That would be my opinion, yes.”
Before I mention the other expert medical evidence there are several other pointers to support that the screw went through too far and impinged on the nerve root.
Mr Carney certainly thought it did. By the time he gave evidence he had recanted but I must say that I found the recantation in the witness box unconvincing.
I have set out what the plaintiff and Mr Mount said Mr Carney told the plaintiff.
More than that, Mr Carney wrote to Dr Kubichek:-
"Dear Dr Kubicek
re: Anthony LUCAS
To cut what is a saga into a reasonable shape, I think the salient features are that Mr. Lucas, at the combined operation, was well relieved of his left (sic - should be right) - sided nerve root problems but almost certainly suffered some injury to the right (sic - should be left) L5 root from a pedicle screw during Terry Hillier's part of the operative procedure.
As you know, Terry has had several attempts at relieving this and eventually has (removed) right (sic - should be left) - sided fixation altogether.
I am not surprised that the pain continues and, indeed, it is likely that he will have severe pain problems for the next twelve months.
On top of all this he has, I think, profound psychological overlay which I suspect has been there from the beginning and is very much exacerbated by his chronic pain. I think he is habituated to narcotics as a consequence of the pain/personality combination and recent evaluation has indicated that the psychological factors certainly are of major importance.
At the moment I have arranged for the Pain Unit at the memorial Hospital to carry out a full assessment. After that he will have intrathecal morphine test dose and consideration of a Medtronic morphine pump for chronic intrathecal morphine administration.
Unfortunately the psychological factors seem to be so important and his habituation to narcotics so important that even very large epidural dosages of Pethidine have been failing to relieve his pain more than 50%. I think we are thus in for a very long and difficult time.
With kind regards.
Yours sincerely,
P.G. CARNEYDictated but not read or signed by Mr. Carney"
[I may say that I have always regarded it as grossly discourteous to dictate a letter in this way and neither read it nor sign it before despatch. Dr Carney seems to have done this quite regularly. That is beside the point. More to the point is that if he had taken the trouble to check the letter he would have picked up his errors of dictation, mixing up the right and left sides.]
Mr Hillier said that when he first found out about the letter he thought of suing Mr Carney for defamation! It was an unprofessional comment and he was rocked by it.
Yet, despite his denials in evidence, I find that it had at least occurred to Mr Hillier too, this might be the problem.
On 22 May Mr Hillier operated again to see if he could find anything wrong. He loosened the screws, lifted the plate, found nothing, replaced the screws and plate. It made no difference to the patient's pain: it continued on as bad as ever.
My reason for mentioning the second operation at this point is that on the "Medical Admission Form" Mr Hillier gave the "Admission Diagnosis" as "Re-exploration L4-S1 fusion." He gave the "Clinical Summary" as "L nerve root irritation following L5-S1 stabilisation and decompression." The only way for the L5 nerve root to have been irritated would have been by the screw.
Moreover I notice he had written to Dr McKenzie who was called in because it was feared the patient had a deep vein thrombosis (in fact he did not):
"Thank you for seeing this man with left leg pain due to perhaps to nerve root pressure but also probable DVT."
Yet later on he absolutely denied that such a thing as nerve root irritation had ever been considered. He made a note on 17 September 1991:
"The situation has been compounded by him seeking legal advice because of what he describes as dissatisfaction with the neurosurgical aspect of the operation. He states that PGC, in a letter to Dr. Kubicek, did say that there was damage to the nerve root produced by one of the transfixing screws. In fact, that had not been ever considered a possibility, particularly as all x-ray views had shown satisfactory alignment of all internal fixation."
I have to say that in relation to both defendants I have detected a significant degree of self justification. They have put the best possible interpretation in their own interests on everything which has happened. It may well be that over the years each has genuinely convinced himself of the accuracy of what he has told me but that is beside the point.
I mention this only to say that because I believe they have tried to protect their own interests, especially on technical, expert matters I prefer the views of other experts to theirs.
To sum up this part of my Reasons. After the operation the defendants thought the most obvious explanation, that the sacral screw had gone in too far, was at the least a possibility even though later both denied it.
But what of the other expert medical evidence? I heard from a number of gentlemen, called by both sides, expert witnesses who greatly impressed me - "witnesses whose attainments neither were nor could be challenged." Yet alas, as in Forsts Case, again to use the words of Rich ACJ "whose opinions exhibited no greater degree of unanimity than is commonly met with in other departments of abstruse knowledge and of scientific research."
I do not propose to canvass the evidence of each but I assure the reader that I have carefully considered the opinions of them all.
I shall not canvass the different opinions because I have come to the firm view that I prefer the evidence of Mr Timothy Roland Morley, MA, MB, Bch, FRCS to that of all the others. Mr Morley is a consultant orthopaedic and spinal surgeon at the Royal National Orthopaedic Hospital, Stanmore, Middlesex. He practises in Harley Street.
Even Mr Morley acknowledged that he had to talk in probabilities:
HIS HONOUR
"Q.... I would have thought from what you said before that the obvious explanation was that those long screws at the bottom, the sacrum.
A.That's the view I've taken, but I do have to stress that I give that view on the grounds of probability rather than absolute certainty, because there was never an investigation to prove it, and I'm trying to help as much as I can do, and that's the most likely place, but it's not like a jigsaw that fits together beautifully, and I can say this is exactly what happened and there you are. I wish I could, otherwise I would say so.
EXAMINATION
Q.Turning to the CT scan of 6 May.
A...... The one I'm looking at has the planning film on the side of it, which again is numbered 3. The planning film - two bread slices. Is it dated the same, because mine is yellow, dated 16 May? Yes, that's the one. In this situation what the radiologist and the radiographer do together first is to do what's called a planning film and this film is to show where the slices are going to be taken later by the CT machine. My only comment, and I think this is important, is to show that when the planning was done the planning did not include all the implant, so it stops at this level.
HIS HONOUR
Q...... Which level is that.
A.Which is where the screw enters the sacrum but is not carried down to the tip of the screw, which is the bit that I was interested in.
EXAMINATION
Q.Is that shown in that part of this film in the bottom right-hand corner.
A...... You actually can't even see the tip of the screw at all. It comes off the film completely. But those planning slices should have been moved down by about a centimetre and a half to show the tip. Because what you are not doing is seeing where all the metal is from top to bottom.
HIS HONOUR
Q...... Here, as I understand you, we are missing the vital bit.
A.Yes.
EXAMINATION
Q.And hence is that why you told His Honour that you cannot state with absolute certainty what you think is the explanation for these events.
A...... It's why I can't do more than just say 'I think this is the probable cause' rather than saying 'That's the cause'.
Q.Did you analyse in your report the process of reasoning whereby you arrived at that conclusion, that is, your first report dated March 1996, being in Exhibit P4 and in particular at pp.40 to 42 of that report.
A...... What I did was to try and do my best to interpret what had occurred and what the most likely cause of this man's symptoms was. I was unable to be dogmatic and I was certainly unable to say 'That, your Honour, is exactly where it went wrong.' I could only give a most likely view.
HIS HONOUR
Q...... What you can say, though, is that something went wrong.
A.What we can say is something went wrong and he undoubtedly had some neural irritation. What I can't say is exactly where it occurred, because the jigsaw doesn't fit.
Two other expert witnesses called by the plaintiff, Messrs John Brian North and Swaran Singh Khera, orthopaedic surgeons of Adelaide, are of the same view as Mr Morley.
Mr Morley saw the plaintiff, in Adelaide, in 1996. He came twice to Adelaide to give evidence in this case and before doing so the first time, examined the plaintiff again. He was a most impressive witness, explaining his opinions with clarity and precision.
I propose to give his opinions on a number of matters not just on the cause of the problem.
Mr Morley said that he would have, before surgery, advised the plaintiff that the chances of success to the level of significantly alleviating his pain were only 10%.
In his first report, in March 1996, Mr Morley wrote:
"The post-operative plain x-rays do not comment on any abnormality of placement, with the exception that the right sacral screw is placed directly anterior/posterior and is proud by 7 mm. The left pedicle screw is similarly placed, but unfortunately there is no way of telling whether this has penetrated the anterior cortex, although it does not look obviously too long on the plain films taken in the lateral projection. The subsequent scans, unfortunately, do not go down to the level of the tips of the pedicle screws, and therefore there is no evidence anywhere of the exact placement of the screws. There are inherent dangers, both neural and vascular in placing sacral screws through the front of the sacrum, this is particularly true in males where it is difficult to direct the screws towards the sacral promontory and they tend to come out further lateral where both neural and vascular injury can occur.
Immediately following the operative procedure Mr Lucas complained of pain in the left leg, i.e. the opposite leg from where he had previously had pain. This should have suggested that there was an element of mechanical impingement for the pain was on the opposite side to his decompression and was typically the pain of neural compression/irritation, and was described as burning. The notes seem to suggest that this was both L4 and L5 in distribution. ...
I believe therefore, that it was not negligent to consider operative treatment in 1991, at a time when Mr Lucas was dissatisfied with conservative management, and I think the procedure considered was reasonable. ...
I cannot see any reason to criticise the neurosurgical element of the operation in that the symptoms in fact were better down the right side following operation, it was symptoms down the left side which were the cause of Mr Lucas' continued problems. These could only have been related to the placement of the screws.
Neural damage is, unfortunately, not uncommon in the placement of pedicle screws because there is very little space down the pedicle of the lumbar spine, and any malposition will inevitably cause neural impingement.
In summary, I think this was a particularly difficult case to manage and unfortunately, I think that on the balance of probability the cause of Mr Lucas' pain was mechanical injury to nerve root/roots caused at the time of the operation by the use of pedicle screws and plates used for mechanical fixation of the spine."
That was Mr Morley's first opinion and he maintained it even under intense, detailed, lengthy cross examination by Mr Richard Halliday, with Mr Geoffrey Black, for the defendants.
Admittedly Mr Morley accepted Dr Parker's opinion in the report of 10 May that the right side screw had penetrated the anterior cortex of the sacrum for a distance of approximately 7 mm but that does not disturb my views.
Mr Halliday taxed Mr Morley about magnification on the x-ray. Mr Morley worked on 12% but Mr Halliday put to him that it could be as much as 30%. Mr Morley replied:
"A..... The normal recognised magnification is 12%. If he can show to me the mathematics on which he made that conclusion I of course would defer, it depends on what focal length you are using.
Q.Yes of course, but if it was a 30% magnification, the protrusion of the screw would be less than half of the 7 mm wouldn't it.
A...... If it was 30% it would be more than half, presumably if it was 30% that is less than 50%, so it would be more than half or my mathematics are leaving me, it would be two-thirds of 7.
HIS HONOUR
Q...... Now I'm lost.
A.I said that the standard textbooks say there is a 12% - now the radiologist may be correct that in these films he moved the x-rays so close to the body that there was more of a spread and it might be 30%, I wouldn't disagree with that, but I was asked wouldn't that make the screw less than half and I said no it would make it more than half.
Q...... More than half of what.
A.Of the protrusion. So 7 mm would -
Q...... Would become 10 mm or something -
A.No, it would become two-thirds of 7, it would become 5.
Q...... About 4 or 5.
A.4 to 5.
Q...... What difference would that make in your opinion.
A.Very little, because as we saw in the section room this morning [we had been that day to the Anatomy School] that the nerve root is absolutely adherent to the side of the pelvis, it doesn't have a chance to move away, so it wouldn't make a great deal of difference really.
XXN
Q.Would you be critical of it.
A. ... No - that it was 30%?
Q.Yes, that it was 5 through.
A...... I would be critical of 5, 2 is what we try and aim for, I just get that tip through.
Q.If you can.
A...... If you can. I think being critical is a word - listen, when we are doing this we are running risks all the time, and what we as surgeons have got to do is minimise risk, and if there is a nerve root right where the screw is going to come through, don't let us put it through 7, 5, 4 or 3, let's put it through - ideally not through at all, unfortunately, I think quite rightly, the surgeon wanted to take a grip on the front of the ala -
Q.He has to do that.
A...... He doesn't have to but it weakens your construct if you don't, so what you aim to do is to make absolutely sure that you don't put it through more than absolutely necessary, one bite."
Mr Morley said the problem is that the screw went in too far. The fact that the screw impinged on the nerve root means it was too far. It does not matter whether it was 7 mm or less.
I can see no reason why I should, in searching for the cause of the plaintiff's left leg problem go beyond the obvious explanation - the one which Messrs Morley, North and Khera give and the one which occurred to Mr Carney and, I think, to Mr Hillier as well - that the left sacral screw protruded too far and impinged on the nerve root.
The next question, though, is whether allowing the screw to impinge on the nerve root amounted to negligence? I think, on balance, it did. Mr Morley said that if he had had a patient who ended up as Mr Lucas did, he would not be very proud of himself. That was pretty mild criticism, not enough to rely on to find negligence. However I asked Mr Hillier himself about it:-
"Q.... There is one other matter which I will raise now rather than later. I know that you absolutely denied that this happened and I ask the question against the background of your denial, but if you had pushed in the screws too far and had interfered in some way with a nerve root, that would have been a very careless thing.
A.It would have been incorrect to have left that operation without ascertaining the correct situation and then correcting it at that time. That would be careless to ignore that, or more particularly, if I found that there was indication that that screw was causing a particular nerve root problem, to not correct it."
Throughout the proceedings, counsel for the defendants bombarded the expert witnesses with the phrase ‘does this accord with a responsible body of medical opinion as of 1991’. This is reminiscent of the Bolam test which was previously used to gauge a medical practitioner's standard of care. In Sidaway v Board of Governors of Bethlem Royal Hospital [1985] AC 871, the Bolam test was summarised as:
“The Bolam principle may be formulated as a rule that a doctor is not negligent if he acts in accordance with a practice accepted at the time as proper by a responsible body of medical opinion even though other doctors adopt a different practice. In short, the law imposes the duty of care: but the standard of care is a matter of medical judgment.”
In Australia the Bolam test was replaced by that to be found in Rogers v Whitaker [1992] 175 CLR 479 at 487:
“ In Australia, it has been accepted that the standard of care to be observed by a person with some special skill or competence is that of the ordinary skilled person exercising and professing to have that special skill. But, that standard is not determined solely or even primarily by reference to the practice followed or supported by a responsible body of opinion in the relevant profession or trade. ... while evidence of acceptable medical practice is a useful guide for the courts, it is for the courts to adjudicate on what is the appropriate standard of care after giving weight to ‘the paramount consideration that a person is entitled to make his own decisions about his life’.”
The operation occurred in 1991 and at this time the Bolam principle was accepted law in Australia. It is worth noting that while the Bolam test was the law at the time, it was not always followed; see Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542, F v R (1983) 33 SASR 189, Battersby v Tottman (1985) 37 SASR 524 and E v Australian Red Cross (1991) 27 FCR 310. This may not have much relevance, as, in my view under either test, Mr Hillier’s conduct does not attain the standard of a responsible body of medical opinion. I did not hear from any expert witness, that it was appropriate to place the screws through the anterior cortex of the sacrum so far as to injure nerve structures.
For the above reasons I conclude that Mr Hillier was negligent in the performance of the operation by putting the left sacral screw in so far as to impinge on the nerve root.
The next matter is whether the defendants acted fast enough and effectively enough in response to the plaintiff’s condition and complaints after the first operation.
The plaintiff said he woke up from the operation with this terrible pain in his left leg, pain which had not been there before the operation. He complained about it. Pain for 48 hours or so after such an operation is to be expected and that's what he was told. The Hospital note, post-operation is, "Leg pain a problem".
Yet, looking through the Hospital notes, every day with the exception of Saturday 25 May, the patient is recorded as complaining of pain in the left leg. This continued after transfer on 29 May to Griffith Hospital. He stayed there until 11 June when he came back to the Memorial.
On 15 June Dr Sydney John Aidinis gave the patient epidural pain tests. They shewed a bizarre pattern. The patient reported less pain in the leg when administered placebos than with even high doses of pain killers! This led Dr Aidinis to express the opinion that the complaints of pain were consciously exaggerated. Perhaps exaggerated but genuine nonetheless. Having heard the plaintiff and having read the notes I believe that, up to this time, the complaints of pain were genuine. Certainly there were bizarre features but I find that the plaintiff was having very great discomfort. Both defendants knew or should have known this!
One of the unfortunate aspects of the case is that neither gentleman kept proper notes. What's more, neither read, he said, the hospital notes. Each said he carried it all in his head. It was common practice in 1991 I was told, only for unusual things to be noted by a surgeon in the hospital notes. To me as a layman, this seems very unsatisfactory. It also has made my job of working through what happened and why, much more difficult. Nor am I alone in feeling that way. One of the expert witnesses said that reading the hospital notes is like reading a newspaper: notes written by nurses who do not have nor are expected to have, the capacity to note detailed technical observations, are not sufficient.
Mr Morley was trenchant in his criticism and several of the other expert witnesses said much the same as Mr Morley did. In cross examination Mr Morley shewed signs of a little irritation:-
"Really, clearly, how can we make a neurological diagnosis, from what Mr Lucas says, and then is written down by a nurse? That is not how we practice medicine."
The failure of the defendants to make proper notes may just be another manifestation of their off-hand attitude to the plaintiff's treatment or it may have been simply slackness. I had the impression from them that they are more careful these days.
I do not find that the defendant’s failure to make proper notes was, of itself, negligent and I doubt if it could have contributed to the plaintiff's condition. However, in different circumstances lack of proper notes could be negligent.
Far more relevant is the complaint of delay in taking any action in the face of the plaintiff's complaints and what the medical men saw of him. I acknowledge that I heard the views of two schools of thought. Mr Kingsley Mills, called by the defendants, orthopaedic surgeon of Melbourne, whom I greatly respect but whose views by and large I cannot accept, would not have removed the plate and screws at all for fear of prejudicing the fusion of the vertebrae. Mr Morley regarded not removing the plates and screws as "irresponsible". His view, which I accept, is that the plate and screws should have come out much, much earlier. This is an exchange, during cross examination, between him and me:-
"Q.... The problem we have is that we deal in probabilities, and that's why it's pretty important if we can pin you down to this whether you think this was probably the cause or even though it was the most probable cause, not that it only may be the cause.
A.I think it was the most probable cause. What I am certain of is that somewhere within that construct, that metalwork down the left side, there was an irritation of nerve roots.
Q...... And therefore it ought to have been taken out.
A.And therefore it ought to have been taken out, so wherever the site was, even if I was wrong, and I have been known to be wrong very frequently, even if I was wrong about where the site was, it doesn't change the fact that the metalwork should have been taken out immediately because it wasn't just probable, it was almost certain that it was the cause of the problem somewhere."
Yet the defendants did not take the screws out immediately. They waited. Whether they simply did not think the plaintiff's complaints genuine or whether they were puzzled and could not decide what to do, the fact is that nothing was done until 26 May when Mr Hillier had the exploration and put everything back as it had been before. Nothing changed. It was not until 17 June that Mr Hillier operated on the plaintiff for the third time and removed that left plate and the screws.
Was the delay significant? Mr Morley thought it was. This is in cross examination immediately after the passage I have quoted:-
"Q. .. ... there's an area of debate about if there was irritation, as you expressed it to be, of some area, the duration of that irritation or the duration of the effect of that irritation in an organic sense, isn't there.
A.Yes. The difficulty we are again going to run into is that nerves, once they have been damaged, by whatever cause, do not recover fully, and therefore the irritation, even if you remove it, can persist long term, and all one can say is the earlier you remove the irritation, the better. That's all I can say."
The plates should have been removed much earlier. Mr Morley thought there would have been no immediate cause for concern in the first 24 to 48 hours on account of the pain:-
"A..... ... I don't think that there was any immediate cause for concern in the post-operative period within the first perhaps 24, 48 hours. But, clearly the pain persisted, and the pain became worse, and the pain became more troublesome and, therefore, this should have alerted people to have done a full and proper inspection and then we would have been in a better position to say what was going on."
In Giurelli v Girgis [1980] 24 SASR 264, White J was faced with a similar situation. The plaintiff had undergone an operation on his leg involving some metal work, a 10 inch steel plate and ten one-inch screws, carried out by an orthopaedic surgeon. The plaintiff had a reputation for being difficult in that he complained all the time, be it about the hospital food or about his condition. After the operation the patient was left in the care of the surgeon’s physiotherapist. The plaintiff continually complained of pain in his leg and an inability to perform the exercises instructed by the physiotherapist. The surgeon had formed the opinion that the complaints were attributable to a low pain threshold and were exaggerated. When the steel plate was finally removed, the leg gave way and another operation was required. The learned judge found that the surgeon was negligent in his failure to listen to and properly investigate the plaintiff’s complaints.
With reference to the patient's treatment White J said (at 267):-
“I find that the plaintiff was genuinely suffering considerable pain upon even the slightest weight bearing during the months of October, November and early December 1971, and that he did tell those about him (who were prepared to listen) quite clearly when he was suffering such pain. The trouble was that medical and para-medical persons were not prepared to listen. ... there was a physical cause for his complaints of pain and inability to bear weight on his leg, a physical cause which could have been discovered, given greater inclination to spend time with the patient and listen to what he had to say without too much scepticism.”
On the patient's proneness to exaggeration and complaint, His Honour said (at 270):
“To some extent, the plaintiff has himself to blame for finally (in March 1972) being in the position of the boy who cried 'wolf'. Nevertheless, I do not think it was reasonable for Dr Girgis to discount so much his complaints of pain. The difficulty created by the plaintiff’s personality simply called for the exercise of a little greater care and time to sort out real pain from 'imaginary' pain."
These words are pretty true in the present case too. The plaintiff complained incessantly about his pain to anybody who would listen, this included nurses, Jo Richardson - the physiotherapist, other patients and even the defendants themselves. If the defendants had felt that he was exaggerating his pain, then why didn’t they organise earlier for him to visit a pain clinic or have a pain study test done? The pain test performed by Dr Aidinis on 9 July 1991, was two months after the operation and after all three operations associated with the plate and screws. As well, there were symptoms other than pain which should have alerted the defendants to the fact that there was some major problem with the plaintiff: his leg was swollen, discoloured at times and prone to unusual spasms.
I cannot help thinking that if either Mr Hillier or Mr Carney had spent more time with the patient and listened to the complaints they would have investigated them more promptly and possibly taken action much earlier.
I agree with White J:
“Failure to listen to a potential patient who comes to a hospital for medical treatment, but who is turned away by the casualty officer, amounts to negligence if harm results: Barnett v Chelsea and Kensington Hospital Management Committee [1969] 1 QB 428, per Nield J at p. 437. A fortiori, failure by a specialist to listen to an actual patient who is describing symptoms which would affect diagnosis and treatment must amount to negligence, where harm results.”
I find that Mr Hillier is negligent for waiting so long before removing the plate and screws. I think it has unnecessarily prolonged the plaintiff's pain and discomfort.
I have mentioned Mr Hillier only. I have the distinct impression that Mr Carney thought Mr Hillier was responsible for the unhappy condition of their patient and therefore Mr Hillier should do something about it. Although the Hospital notes shew that Mr Carney saw the patient from time to time I think Mr Carney had the attitude of not wanting to know about him and leaving it all to Mr Hillier. For example he wrote to Dr Kubicek on 4 June:-
"At operation on 6.5.91 I performed a right exposure of the spines and right laminae at L5 and S1. Hemi laminectomy of L5 was carried out with foraminotomy and removal of facets. L4-5 discectomy and wide clearance of the L5 root was performed. A similar procedure was carried out at the lumbosacral level. Discectomy was performed at both levels.
Mr. Hillier then took over and performed a pedicle screw fusion with bilateral exposure.
I have had only limited contact with Mr. Lucas since that time. I understand that one or two further procedures have been carried out by Mr. Hillier and that the major problem has been left leg pain. This, I understood, was thought to be related to pressure from bone grafts or other implant material.
I suggest perhaps you obtain further information from Mr. Hillier"
I do not think Mr Carney should have avoided responsibility. I regard him as well as Mr Hillier negligent in not taking action promptly either himself to try to find out what went wrong or at least by pushing Mr Hillier to try to find out.
I accordingly find each defendant negligent in not taking action earlier - the first defendant at least to the extent of urging on the second defendant - after the operation on 6 May 1991, each being aware of the plaintiff's complaints of pain, especially in the left leg and the nature of the complaints. I find the defendant Mr Hillier alone negligent in the performance of the operation of 6 May for allowing the left sided screw or screws to penetrate so far as to impinge on a nerve root, the probable cause of the pain.
So much for liability. I find that the plaintiff has succeeded, on the balance of probabilities, in establishing liability against each defendant.
What of damages?
Before I give my impression of the plaintiff, I refer to what White J had to say in Donjerkovic v Adelaide Steamship Industries Pty Ltd (1980) 24 SASR 347 (at 354-355). He there was speaking of a plaintiff prone to exaggeration. With respect I adopt the same approach in this case and make allowance for his personal idiosyncrasies.
Near the beginning of these Reasons I mentioned that the plaintiff had admitted telling lies on oath and had been retired from the Railways in January 1985. I must say that I formed, on his appearance, on his words, and on his past actions a poor opinion of him. Immediately I set eyes on him I was reminded of Onslow in the BBC comedy, "Keeping Up Appearances". My first impression of the plaintiff remained, indeed was confirmed. He is a man whose word is not to be trusted, a manipulator, a professional invalid who has lived on the tax-payer since 1983, the last time he ever did any work with the Railways.
He admitted to lying under oath after he was shewn film of himself. I give an example. Before seeing the film he said this (in cross-examination):-
"Q.... When you get around now, either your wife drives you, you drive yourself a short distance or you go on the gopher, is that right.
A.Yes.
Q...... How far do you reckon you can tolerate if you drive yourself in terms of distance. Just roughly speaking.
A.15,10 kilometres.
HIS HONOUR
Q.I thought you said you only went to the service station and back.
A...... I do, but I did drive into the city one time. But it's mostly just to go to the service station."
After seeing film of himself, on or about a house-boat at Waikerie in January last year (and, I may say, moving about and acting quite naturally, without apparent difficulty), he admitted driving up there, with his wife as a passenger. It was about a three hour trip. He later drove back to Adelaide, too.
There were other examples of exaggeration and deception to create the impression that he was more incapacitated than he was. He admitted faking a footdrop which required him to have a calliper. This gave him a high stepping gait which he admitted to exaggerating. He complained of an inability to climb stairs and had difficulty walking on uneven terrain. Yet he was seen comfortably walking up the banks of the River Murray. He bought a "pick-up" stick to draw attention to his lack of flexibility: he rarely used it. And so on.
Eventually he admitted to lying:-
"Q.... You told us about fishing. Do you still say you can't go fishing.
A.I don't go fishing.
Q...... Do you still say that you're unable to go fishing.
A.I reckon I could pull a line in.
Q...... You reckon you could pull a line in. You know full well whether you can pull a line in, don't you.
A.No.
Q...... You deny pulling a fishing line in.
A.Handline, I can pull a handline in.
Q...... Do you remember being asked this question at p.161 by Mr Cameron: 'Have you tried fishing at all,' answer, 'No.' Remember that.
A.Yes.
Q...... 'You mean you haven't had a go at it.' Answer, 'Haven't had a go at it.' Remember that answer.
A.Yes.
Q...... Why not. Too frightened to go down a bank. Do you agree that by telling his Honour that you hadn't had a go at it because you were too frightened, you were trying to create the impression that you were a good deal more disabled than you really are.
A.Yes.
Q...... It was a lie, wasn't it.
A.Yes."
At this point Mr Richard Halliday with Mr Geoffrey Black for the defendants, suggested I might give the plaintiff a warning. I did so and subsequently made an order that he be represented separately in his personal capacity.
What is the significance of all this? In examination-in-chief I formed a picture of a man still quite severely handicapped. After cross-examination and seeing film it was obvious that the plaintiff had exaggerated his incapacity, indeed gone past the point of exaggeration to downright lying, to mislead those who examined him and the Court. The videos shewed a man who, by January 1998, was quite mobile and appeared to be leading a reasonable existence engaging in everyday activity such as shopping, driving, cleaning the car and hobbies such as fishing and yabbying. It means that I must greatly discount what the plaintiff has told me about his incapacity. I too discount the evidence of Sandra Stevens, his partner with whom he lives in the caravan on the Sturt Creek and of her daughter, Lee Stevens, who lived with them for some time, because of their obvious loyalty to him.
I really do not feel able to accept anything the plaintiff has told me of how he has felt since the operations unless it is confirmed independently in some way. It certainly makes the job of assessing damages difficult, particularly to work out when he had recovered from the effects of the operations (as I am sure he had well before the time of trial). What should be the cut-off point, as it were, for damages for pain and suffering and the loss of the amenities of life?
Yet I must make the attempt. I have already set out the several operations he had after the first operation on 6 May 1991, in an attempt to reduce the pain in his left leg. The plaintiff was in hospitals for about four and a half months and during that time must have been very uncomfortable indeed. I accept that after he went home to the caravan park the discomfort accompanied by incapacity continued. The medical people did what they could to help him but until November 1992, when he had a morphine pump fitted, about 18 months after the operation, nothing much helped. Given that he must have a pump in his body now for the rest of his life, it has been pretty successful in reducing his pain. Not entirely so. The pump itself has given some trouble. It got a kink in a line through which the morphine flows. That meant it did not work properly and his pain increased. It took them some time to find out what was wrong.
As well the pump has other risks. It is, of course, an invasion of the body and may allow in an infection. It has to be primed every month and this means going to the hospital. The pump itself must be replaced every three to five years.
Nevertheless, Mr Morley described it as, "the best decision that anybody took. It's revolutionised his life." Mr Morley also expressed the view that the plaintiff is probably better off now than he was before the operation.
I propose therefore to use November 1992, when the pump was first fitted, as the cut-off date. This was when the plaintiff had substantially recovered from the after effects of the operation. His condition was stable. I do not forget, though, that the maintenance and occasional replacement of the pump will continue for the rest of his life and I must make allowance for that.
I am fortified by Mr Morley's view (in cross-examination):-
"Q.... If he admits to faking a foot drop from 18 months after the surgery, would you expect that, in an average patient, if there is such a thing, after this type of surgery, that he would recover within 18 months without the complication.
A.If you have a neurological injury, and you take away the cause of it, you have 18 months in which to recover. So, if this was a recoverable lesion, which I think we all think it was, then, you would have expected him to recover over a period of 18 months."
There is another factor in the assessment most significant. The plaintiff has always smoked heavily and drunk far too much alcohol, to the point of being an alcoholic. This has had an effect on his health: he has significant liver and intestinal damage.
Both heavy smoking and too much beer have continued up to trial and are likely to go on for the rest of his life. There is no reason to think he will give up either smoking or drinking. He has also been a heavy user of narcotic drugs: he has manipulated the medical profession for years to get them. What then of his life expectancy? Actuarially it is about 25 years but it is likely he won't live as long. Dr Kubichek was asked about this:-
Q...... Based on those previous conditions he has had, whether you would expect his future life expectancy to be reduced, and I don’t want you to quantify it, as a consequence of all his prior medical history. Don’t unless you can.
A.Unless he is one of those alcoholics that is protected by some supernatural force and lives for a long time, and they do do that, on the basis of all the medical conditions that he has had for the last 20 years I would expect his life expectancy to be considerably reduced.
HIS HONOUR
Q.From what actuarial - a man of 54 would expect.
A...... I don’t have a crystal ball but I mean he could have his DVT, he could have his lung cancer, he could get a heart attack, he could get liver poisoning, he could die from any of that in the next 6 years I think. A man who smokes that much has something like a 1 in 50 risk of dying in the next six years anyway."
This is all I have to go on. I must use some period. I think I should err, if at all, on the side of generosity to the plaintiff. I shall assume a life expectancy of twelve years.
The plaintiff complained of (and Sandra Stevens confirmed) loss of sexual capacity. Before the operation they had sex a couple of times a week. Since then there has been none: they have become reconciled to that. I must say that I am a bit sceptical about it having been due to the operation - a man now in his fifties, even in his forties, who smokes and drinks too much can't expect to have everything.
Mr Cameron referred to two cases on sexual dysfunction, Electrolux Pty Ltd v Siniakis [1998] 1 VR 29 and Knight v Government Insurance Office of New South Wales (unreported, Supreme Court of NSW, 13 April 1995). In Electrolux the plaintiff fell off some crates and boxes while at work and injured his crutch. In particular he suffered permanent damage to the urethra. This had a debilitating effect on the plaintiff psychologically. In Knight the plaintiff experienced extreme pain while attempting to engage in sexual intercourse with his wife after having had a back operation. In the current case the plaintiff has not proved any physical symptoms to explain his impotence.
In both Electrolux and Knight the alleged impotence was tested through witnesses and cross-examination. In contrast the present plaintiff did not adduce any expert evidence. The plaintiff mentioned sex as something which he used to like but he did not exhibit a ‘severe emotional disturbance’ as was the case in Electrolux, or experience marital problems and low self-esteem as in Knight.
Perhaps the operations are a factor in his incapacity but I doubt if they are the only factor, if a factor at all. That being so I shall not allow a separate amount for loss of sexual capacity but keep it in mind in assessing damages for pain and suffering and loss of the amenities of life.
I shall base my assessment on his having recovered from the effects of the operation on 6 May 1991 after the insertion of the morphine pump in November 1992. I shall take into account that the pump needs to be filled once a month at the hospital, that he has had trouble with the pump, that there has been one replacement, that there will be others at intervals of three to five years during his life and that there is a risk of infection.
The plaintiff had three operations when he had expected to have one. He was in hospitals for four and a half months when he expected to have about ten days. He used a calliper on his left leg. He could not look after himself. Sandra Stevens and her daughter had to look after him. He was much less mobile than he had been: he could not get down to the Sturt to go yabbying. He used a gopher to move about. Above all he had continuous pain and discomfort - like someone pouring boiling water down the inside of his left leg, he said - until the morphine pump was fitted. In short, I accept that he had a very bad time for eighteen months. I allow $30,000 for his pain and suffering during that time. I allow another $10,000 for pain and suffering from November 1992 until judgment: finally for the future $10,000. In all $50,000 for pain and suffering.
Next, earning capacity. The plaintiff had not worked for years. Although he said he hoped the operation in May 1991 would allow him to look for light work, I doubt if he were genuine. I think he lost the will to work years ago. The will to work must be an element in capacity to work. If a person has no will to work, whatever his physical capacity, then he will not work. That is the position here. I do not think there was any change in his work capacity. I suppose, though, if the operation had been a success and he had had no pain in either leg, then there was some chance he might have wanted to do something.
In assessing loss of earning capacity it is important to ask the right question. In Malec v J. C. Hutton Pty Ltd (1990) 169 CLR 638, Brennan and Dawson JJ put the question as:
“... what would he have been able to earn if he had not been tortiously injured? To answer that question, the court must speculate to some extent. ... the ascertainment of earning capacity involves an evaluation of possibilities, not establishing a fact as a matter of history.”
In Medlin v SGIC (1995) 182 CLR 1, McHugh J said:
“The correct question was whether, as a result of the accident, the plaintiff had been rendered less capable of earning income. In answering that question, his Honour was required to look at the plaintiff’s capacity for work beyond the particular employment in which he was engaged at the time of the accident.”
To assess the plaintiff’s earning capacity, one should not use past employment as the measure of assessment. This does not mean that the plaintiff’s past employment is of no use. He had only ever been engaged in ‘heavy work’. The operation if it had been a success would have allowed him to undertake light duties. He has a limited educational background (having left school at age fifteen or sixteen) and has not been trained to do anything else. While working at the Railways the plaintiff had applied for light duties, but no light duties were available to him. He is now fifty-one years old and the prospect of further employment is very slight but it must be taken into account. In Malec the majority consisting of Deane, Gaudron and McHugh JJ referred to the importance of assessing the probability:
“If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of degree of probability of those events occurring. The probability may be very high - 99.9 per cent - or very low - 0.1 per cent. But unless the chance is so low as to be regarded as speculative - say less than 1 per cent - or so high as to be practically certain - say over 99 per cent - the court will take that chance into account in assessing damages. ... Thus, the court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability.”
Given the plaintiff’s age, lack of education and training and general demeanour, the plaintiff’s chances realistically of further employment, even after a successful operation, would have been a low probability. Almost so low as to be speculative and certainly low enough to be highly unlikely. I award the plaintiff $2,000 for loss of earning capacity.
There is a claim for loss of domestic capacity. The plaintiff claimed to be severely restricted in his yabbying abilities, not able to use a ladder or to carry out handyman duties around the home. This lasted, at most, until the morphine pump was fitted in November 1992. At the beginning of 1998, the film shewed that the plaintiff could yabby, was able to clean the inside of his car and had enough balance to walk a narrow gangplank on to a houseboat. I expect he had been able to do these things for some years before that. As well, the evidence was that, even if the operation had been a success, the plaintiff would have suffered some side-effects including reduced flexibility: this may well have restricted him in the manner of which he now complains. I allow $2,000 for loss of domestic capacity.
In assessing future medical expenses I make allowance for visits to the plaintiff's general practitioner, supervision by a pain clinic, one morphine injection per month to refill the morphine pump, the replacement of the morphine pump every three to five years and the operations and hospitalisation associated with the replacement of the morphine pump. I shall use as a rough guide the unproven claims submitted as special damages. I take into account that the plaintiff has a reduced life expectancy not a consequence of the operation. I shall use a life expectancy of twelve years, in the absence of any precise expert opinion. I allow $45,000 for future medical expenses.
The plaintiff’s defacto, Sandra Stephens, gave evidence that she ‘never missed a day’ of visiting the plaintiff when he was in hospital. She said that she often used public transport to do this and remained at the hospital for many hours each day. She said that her daughter, Lee Stephens, would also attend the hospital on most days. It is on this basis that the plaintiff claims damages in the line of Wilson v McLeay [1961] 106 CLR 523 and Beck v Farrelly (1975) 13 SASR 17. In Griffiths v Kerkemeyer (1977) 139 CLR 161, the nature of these damages were discussed by the High Court. In his judgment Mason J said, "It is now recognised that the true loss is the loss of capacity which occasions the need for the service". Thus, it was held in Wilson v McLeay that the plaintiff had a genuine need for her parents to tend her bedside while she was in hospital. While more recently in Burford v Allen Matheson J held:
“I agree with counsel for the plaintiff that when a very young person is in a tense and frightening hospital environment with grave injuries and in a condition where her life is at stake, it is entirely reasonable for her to have as much comfort and consolidation as her mother could provide.”
Despite Sandra Stephens admitting that at times the plaintiff was unaware of their presence and that at times when he was really depressed "he didn’t want any visitors at all", the plaintiff, I accept, would have derived benefit from Sandra Stephens’ and Lee Stephens’ visits. He said he hated hospitals: his time in hospital would have been even less pleasant but for their visits. I award $3,000 under this head of damages.
Damages are also sought for voluntary services performed by Sandra and Lee Stephens after the plaintiff left hospital. From the time after the plaintiff had left the hospital until the morphine pump was installed the plaintiff required and received a good deal of assistance from both. Lee Stephens, with a nursing background, tended to the plaintiff’s ulcers, bathing and changing the dressings as required. Sandra Stephens looked after his other needs at a time when he was mostly bedridden. She cooked, cleaned, washed him and his clothes, dressed him and helped him to use the lavatory. I make an allowance under this head until the installation of the morphine pump. From then on he could look after himself at least as well as he could before May 1991. I allow $5,000.
Finally I come to special damages. The total eventually claimed, made up of hundreds and hundreds of separate items, is $215,115.46. From time to time during the hearing, counsel told me that they were "working on" agreement and they were "confident" the damages would be agreed before the hearing finished. They never were. Special damages were agreed as to quantum but not as to liability. Not one item was ever proved: no attempt was made to prove even one item of special damage.
I do not remember being in such a situation before. I have always understood that special damages either must be strictly proved or agreed. Thankfully, nowadays they are nearly always agreed - but not so here.
I have already mentioned that there are hundreds and hundreds of items. For the plaintiff to have to prove each would be absurdly tedious, a great waste of time. Yet, technically, as I understand the law, that is what should happen. The job is usually avoided by the parties being reasonable, coming to agreement on quantum and liability.
There is evidence of the plaintiff's abuse of the Comcare "system". For example, he would take taxis all the time, when he could have used a bus or a motor car. When he took a taxi to a medical appointment he would make it wait until he had finished and then take him home. Comcare paid everything, apparently without question. Indeed I came across, in the proven documents, this Comcare memorandum:-
"4/3/93 - It is simply not possible to obtain a report on this man at this time. If he claims anything, it is more likely we will end up paying for it than not, ... unless clearly outrageous/ inappropriate, just pay."
Even though this was written after the cut-off date which I have fixed, of November 1992, looking at what is claimed, I believe it represents the attitude of Comcare from the beginning, probably from a time before the first operation in May 1991. It was easier for Comcare to pay rather than to query and seek justification for every item.
This really is an outrage! A waste of taxpayers' money. Even though the plaintiff was a difficult man it looks like slackness on the part of Comcare.
I am not prepared to allow the special damages as claimed. I shall certainly not follow Comcare and allow everything just because it is claimed. Mr Cameron relied on a reference in Luntz "Assessment of Damages" (3rd edition, at paragraph 1.6.12, pp59-60), setting out dicta of Dixon CJ and McTiernan J in Russell v J. Hargreaves & Sons Pty Ltd (1957) 30 ALJ 533 at 534 (the appellant was a taxi-driver injured in a motor accident):-
"His efficiency as a driver and his capacity to drive for any lengthy period have obviously been greatly impaired and even if an exact sum of special damages has not been proved the existence of this head of damage has been shown as a substantial element and ought to have been taken into account in assessing general damages."
I suppose that is sufficient authority for me to "wield the broad axe". Anyway that is all I can do. The plaintiff must be entitled to something for out-of-pocket expenses but I do not accept his claim and that of Comcare as to what they are.
I shall allow eighty per cent of the total claimed until the end of November 1992 (looking at the list of items claimed up to then, about 80% look arguably justifiable) and make an allowance to cover the costs of the morphine pump between December 1992 and judgment. Eighty per cent of specials claimed to November 1992 is $90,421.00. In addition I allow $24,573.00 from December 1992 to the end of hearing in December 1998, being the costs in that time relating to the morphine pump. That makes a total of $114,994.00.
I shall not allow anything for other specials claimed after the cut-off, November 1992, believing they are either unjustified or not referable to the after-effects of the operation.
Interest is awarded on past non economic loss, past voluntary services, past loss of domestic capacity and special damages. I should not allow interest on future non-economic loss, future loss of earning capacity or future medical expenses. I allow 4% interest over the entire period for both the past non economic loss, past voluntary services, and past loss of domestic capacity and then divide this by half, see Gogic v MBP (SA) Pty Ltd (1991) 171 CLR 657, Wheeler v Page & Harris (1982) 31 SASR 1 and Calvaresi v Lawson (1995) 184 LSJS 147. I allow $7,000.
With regard to special damages I accept the plaintiff’s submission that a commercial rate of 10% be used. Given that I have effectively set a cut-off date of November 1992 for the special damages, and consequently removed almost all special damages between 1993 and 1998, I shall allow interest at 10% on the whole amount for the entire time. I allow $85,000.00.
In summary the damages are as follows;
Past Non-Economic Loss $ 40,000
Future Non-Economic Loss $ 10,000
Loss of Earning Capacity $ 2,000
Loss of Domestic Capacity $ 2,000
Future Medical Expenses $ 45,000
Wilson v McLeay damages $ 3,000
Past Voluntary Services $ 5,000
Special Damages $114,994
Total Interest $ 92,000
TOTAL AWARD $313,994
Even though the plaintiff was represented separately by Mr Cameron and Mr Allen in right of Comcare and by Mr Frayne for the plaintiff, personally, none suggested splitting damages in any way and I shall not.
There will be judgment for the plaintiff for $313,994.
- AGLC
- Lucas v Hillier & Carney No. Scgrg-94-694 Judgment No. S38 [1999] SASC 38
- Case
- [1999] SASC 38
- Decision Date
CaseChat Overview and Summary
The court found that while the defendants were not negligent in the decision to perform the operation or in their pre-operative consultation with the plaintiff, they were negligent in failing to properly examine the plaintiff, obtain a full medical history, and adequately inform the plaintiff of the risks and potential adverse outcomes of the operation. Although the court found that the defendants' failure to take a full medical history, examine, or adequately inform the patient of associated risks did not amount to negligence, it did find that Mr Hillier was negligent in failing to undertake a thorough physical examination of the plaintiff prior to the operation. The court also found that the defendants were negligent in their response to the plaintiff's complaints of pain following the operation, as they delayed in removing the plate and screws that had been inserted during the operation. The court found that the delay in removing the plate and screws unnecessarily prolonged the plaintiff's pain and discomfort.
In terms of damages, the court awarded the plaintiff $30,000 for pain and suffering from the operation until the insertion of a morphine pump in November 1992, $10,000 for pain and suffering from November 1992 until the date of judgment, and $10,000 for future pain and suffering. The court awarded $2,000 for loss of earning capacity, $2,000 for loss of domestic capacity, and $45,000 for future medical expenses. The court also awarded $3,000 for Wilson v McLeay damages, $5,000 for past voluntary services, and $114,994 for special damages. Interest was awarded on various heads of damages, bringing the total damages awarded to the plaintiff to $313,994.
The court made an order for judgment for the plaintiff for the total amount of damages awarded.
Orders
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Background
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Evidence
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