McCarthy v Kidd

NEW SOUTH WALES COURT OF APPEAL

CITATION: McCarthy v Kidd [2001] NSWCA 304

FILE NUMBER(S):
40871/00

HEARING DATE(S): 21 August 2001

JUDGMENT DATE: 12/09/2001

PARTIES:
Barbara Ann McCarthy (Appellant)
Iain Harrison Kidd (First Respondent)
Hunter Area Health Service (Second Respondent)

JUDGMENT OF: Powell JA Heydon JA Studdert J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 4717/99

LOWER COURT JUDICIAL OFFICER: Rolfe DCJ

COUNSEL:
Mr S G Campbell (under pro bono scheme) (Appellant)
Mr J P Gormly (Respondents)

SOLICITORS:
Appellant litigant in person
Tress Cocks & Maddox (Respondents)

CATCHWORDS:
Torts - Negligence - Medical Negligence - Failure to warn - Role of medical evidence from specific practitioners in relation to Court's own assessment of necessity for warning and content of warning - Subjective and hypothetical nature of question as to whether patient would have heeded warning
Torts- Negligence - Medical Negligence - Causation - Appeal from trial judge's finding that no causation proved - Whether iron injections caused gluteal fibrosis - Where medical evidence was controversial - Where the trial judge observed the plaintiff give evidence and found her to be a poor historian - ND

LEGISLATION CITED:

DECISION:
Appeal dismissed with costs

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES
COURT OF APPEAL

CA 40871/00
  DC 4717/99
POWELL JA
  HEYDON JA
  STUDDERT J
12 September 2001
BARBARA ANN McCARTHY v IAIN KIDD & ANOR

Torts – Negligence – Medical Negligence – Failure to warn – Role of medical evidence from specific practitioners in relation to Court’s own assessment of necessity for warning and content of warning – Subjective and hypothetical nature of question as to whether patient would have heeded warning

Torts – Negligence – Medical Negligence – Causation – Appeal from trial judge’s finding that no causation proved –Whether iron injections caused gluteal fibrosis - Where medical evidence was controversial – Where the trial judge observed the plaintiff give evidence and found her to be a poor historian

The appellant (the plaintiff at trial) had suffered from a long term problem of anaemia and since 1970 had received numerous iron injections. In August 1984 the appellant was admitted to hospital under the care of a doctor (the “first respondent”), and the Hunter Area Health Service, (the “second respondent”). Whilst in hospital the appellant underwent a hysterectomy operation and was given six injections of an iron supplement. The appellant brought a claim for damages in the District Court against the first and second respondents, alleging that the first respondent was negligent in not warning her of the risks associated with the injections and that the second respondent was negligent in giving the injections. She contended that the injections had caused fibrosis in her gluteal area. The appellant was unsuccessful at trial and appealed.

Held by Studdert J (Powell JA and Heydon JA concurring), dismissing the appeal:

In relation to causation, the trial judge did not direct himself as to the factual question too narrowly.
a.The trial judge did not err by considering the issue of causation before the issue of the duty to warn.

b. The medical evidence was controversial. It was open to the trial judge to find that there was no objective or clinical evidence proving on the balance of probabilities the existence of fibrosis caused by the injections.
c. The reliability of the appellant’s evidence was relevant and the trial judge had the advantage of observing the appellant in the witness box.

Devries v Australian National Railways Commission (1993) 177 CLR 472, applied.

The trial judge did not err in relation to the content of the duty to warn.

a. While a court itself must determine the necessity for (and the requisite content of) the duty to warn, professional medical opinion is relevant and a trial judge can validly make reference to the opinions of specific doctors.

Rogers v Whitaker (1992) 175 CLR 479 and Rosenberg v Percival (2001) 178 ALR 577, applied.

b. It was unnecessary for the trial judge to detail the content of any

required warning, since he found that the appellant would not have heeded any such warning if given one.

The trial judge did not err in finding that the appellant would not have heeded a warning if given one.

a. The trial judge correctly applied a subjective test to the necessarily hypothetical question.

Chappel v Hart (1998) 195 CLR 232 and Rosenberg v Percival (2001) 178 ALR 577, applied.

b. An assessment of the appellant was relevant and the trial judge had the advantage of observing the appellant in the witness box.

Devries v Australian National Railways Commission (1993) 177 CLR 472, applied.

ORDERS

The appeal is dismissed.
The appellant is to pay the respondents’ costs of the appeal.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40871/00
DC 4717/99

POWELL JA
HEYDON JA
STUDDERT J
12 September 2001

BARBARA ANN McCARTHY v IAIN KIDD & ANOR

JUDGMENT

POWELL JA: I agree with Studdert J
HEYDON JA: I agree with Studdert J.
STUDDERT J: The appellant, Barbara Anne McCarthy, brought proceedings in the District Court against the first respondent, Iain Kidd, and the second respondent, the Hunter Area Health Service. Each respondent was sued in negligence and the appellant claimed damages for injuries allegedly sustained in the course of her treatment whilst a patient at Newcastle Western Suburbs Hospital.
It is common ground that the appellant was admitted to hospital in August 1984 under the care of the first respondent and that the appellant underwent a hysterectomy. The operation was performed on 9 August 1984 and the appellant remained in hospital until 17 August 1984. Whilst in hospital, the appellant had six injections of an iron supplement, Inferon. Whilst her claim was pleaded more broadly, it was the appellant’s case at trial that the first defendant was negligent in not warning her of risks associated with the injections and that the second respondent was negligent in the giving of the injections. The site of the injections in each case was one or other of the appellant’s buttocks and it was her contention that direct injury had been caused to her gluteal nerves by reason of the injections. Alternatively, it was contended that the injections caused fibrosis with or without compromise of the gluteal nerves. The appellant presented at trial and to many doctors before trial complaining of severe symptoms.
The appellant’s case was heard by his Honour Judge Rolfe in October 2000 and judgment in favour of the respondents was delivered on 3 November 2000.
When this appeal was commenced, the appellant did not have the benefit of legal representation and the original notice of appeal and the first amended notice of appeal were prepared by her. The first notice expressed no grounds. Grounds were first stated in the first amended notice. However, ultimately, the appellant was represented by Mr Campbell of counsel and leave was given to the appellant to rely upon a further amended notice of appeal presented by counsel. Mr Campbell did not argue any of the grounds of appeal set out in the first of the amended notices of appeal. The grounds there expressed were bound to fail, although what was ground two originally was taken up in the amended grounds of appeal, and in particular in paras 3 and 4.
Before considering the various grounds of appeal upon which reliance was placed, it is desirable to record short details of the appellant’s medical history. Judge Rolfe dealt with this extensively in the course of his judgment and no challenge was made to the accuracy of his Honour’s judgment in this regard. I therefore propose to be somewhat briefer in this review of the appellant’s history than I might otherwise have been.
The appellant was born on 23 February 1943 and is a married woman who has given birth to eight children, seven of whom survive. The appellant has also had two miscarriages.
Evidence disclosed, and his Honour found, that the appellant had a long term problem of anaemia diagnosed at least by January 1984 as being caused by menorrhagia. In the 1960s the anaemia was treated by the ingestion of iron tablets, but as long ago as January 1970 the appellant was given an injection of iron. The appellant had many injections of iron thereafter, although his Honour was unable on the evidence to determine how many injections of iron the appellant had had prior to her admission to hospital in August 1984. For a period of some years from 1973 onwards, the appellant lived in Queensland, returning to New South Wales towards the end of 1978. There is a gap in the medical history for those years in Queensland.
Having returned to New South Wales, the appellant came under the care of general practitioners at Nelson Bay and was given iron injections in the course of consulting Dr Pidcock and Dr Pacey of Nelson Bay.
Late in 1983 the appellant consulted a general practitioner at Warners Bay, Dr Wijesena. Dr Wijesena gave the appellant iron injections on several occasions in January 1984. He referred the appellant to Dr McMahon, a specialist gynaecologist. Dr McMahon advised the appellant on 11 January 1984 to have a hysterectomy but apparently the appellant was reluctant to have the procedure at that time. Following his consultation, Dr McMahon wrote to Dr Wijesena’s locum, Dr Thine, reporting:
“I discussed the position of hysterectomy with her and she wasn’t sure about this initially but said she wanted a D. and C. I told her that she already had six curettes and this hadn’t done any good so I couldn’t see the point in doing another one. The other option of course was to put her on the Pill but she wasn’t too fussed about that.
Since then I have had several phone calls from her because she said the iron pills make her ill and she said would do much better on iron injections.
She is coming back to you for her iron injections.
In the mean time she has now decided that she wants a hysterectomy.
I have organised her for a haemoglobin in two weeks time and if this is satisfactory I can then organise her for hysterectomy.”
In 1984 the plaintiff passed from the care of Dr Wijesena to Dr Marsh. Dr Marsh said that the appellant presented to him with a history of having iron injections and he was told by her that iron was “either poorly tolerated or ineffective in maintaining her haemoglobin levels”. Dr Marsh gave the appellant at least one iron injection, although the appellant herself said that he gave her more than one injection.
Dr Marsh referred the appellant to Dr Kidd on 6 May 1984 to arrange for a hysterectomy procedure and this referral led to the appellant’s admission to hospital the following August.
In summary then, it was apparent from the history that emerged on the hearing and which was reviewed by the judge in his judgment that the appellant had had many iron injections over many years prior to her admission to hospital in August 1984. Precisely how many injections the judge was unable to determine because there were what he described as “substantial gaps in the medical records” and the appellant “is not a good historian”.
After the hysterectomy was carried out the appellant had six injections. The first respondent had proposed that the iron be administered intravenously but the appellant was unwilling for this to happen. According to Sister Kaczor, one of the hospital staff, she spoke to the resident doctor, Dr Cooke, who changed the medication, prescribing Inferon to be administered by way of injection. In referring to Sister Kaczor’s evidence, I do so mindful that his Honour accepted her evidence and there can be no challenge to that finding. Intramuscular injections were given by nursing staff of the second respondent on 12 August, 13 August, 14 August, 15 August, 16 August and 17 August 1984.
The judge rejected the case presented by the appellant that direct injury to her gluteal or sciatic nerve had been occasioned as a result of one or more of the injections administered in August 1984. Evidence was given by Dr Hinde, a specialist obstetrician and gynaecologist, to the effect that had one of the injections caused nerve damage a complaint of pain would have been instantaneous, and his Honour accepted the evidence by the nurses who administered the six injections to the effect that there was no complaint at the time Dr Hinde would have anticipated.
Mr Campbell did not seek to challenge on this appeal his Honour’s finding that none of the six injections administered in hospital had caused nerve damage. Mr Campbell accepted that the trial judge relied upon what he saw and heard from the witnesses called and that the judge preferred the evidence of the second respondent’s witnesses to that of the appellant. Mr Campbell further accepted that this Court could not properly disturb this finding.
The judge made a finding against the first respondent (which the appellant also relies upon against the second respondent) that the doctor did not warn the appellant of any risks involved in intramuscular iron injections, but his Honour found that the appellant would not have heeded any warning had one been given by the first respondent.
Finally, his Honour was not satisfied that the appellant was suffering from fibrosis as a consequence of the injections administered in August 1984. It was for these reasons that the appellant’s action failed.
I now turn to a consideration of the various grounds of appeal argued by Mr Campbell. They are as follows:
“1.In determining that the Appellant had not discharged the onus of proof (Red 38) on the causation issue his Honour erred in directing himself as to the factual question too narrowly.
2.At (Red [56/57]) his Honour found, in favour of the Appellant, that no warning had been given to the Plaintiff in respect of the risk of injury arising from the repeated administration of injections in the upper outer quadrant of her buttocks. His Honour erred in determining the content of the warning legally required by reference to the opinions of individual medical practitioners contrary to Rogers v Whitaker (1992) 175 CLR 479.
3.The Learned Trial Judge misdirected himself in posing the hypothetical question of whether the Plaintiff would have heeded any warning by taking into account his own view of the Appellant’s ‘direct involvement in the choice of treatment available to her’ (Red 18 and 58).
4.His Honour erred in fact in determining the hypothetical question of whether the Appellant would have heeded a warning given in that he misinterpreted the evidence, and the significance of it, as to the Plaintiff’s previous history of compliance with medical advice given.”
Ground 1
The trial judge was not satisfied that the appellant was suffering from a condition of fibrosis caused by the injections. His Honour’s finding was expressed as follows (Red Book 49):
“It goes without saying that the plaintiff bears the onus of establishing that she has fibrosis in her buttocks caused by too many injections into the fibrositic area. As will be apparent from the medical evidence to which I have referred in detail a large number of doctors have expressed differing opinions as to the cause of the plaintiff’s pain and suffering. I do not propose to embrace any one diagnosis in view of the variation in diagnoses proffered. I am therefore not satisfied that the plaintiff has discharged the onus.”
In addressing ground 1, Mr Campbell submitted that the judge ought not to have considered this causation issue before dealing with the issue of the duty to warn. It was argued that by addressing the issues in the order in which he did, the trial judge deprived himself of the advantage of the process of reasoning identified in Chappel v Hart (1998) 195 CLR 232 and in particular in the judgment of Gaudron J at 238-239.
I am unable to accept this submission made by Mr Campbell. The risk against which there was a failure to warn materialised in Chappel. However, the trial judge was not satisfied that it did in the present case.
His Honour had before him a very considerable volume of medical evidence and was required to make a careful evaluation of it in order to determine whether the appellant had proved that she was suffering from fibrosis and that it was this condition which was causative of any symptoms and disability found to exist.
Dr Benson, Dr Hinde and Dr Kidd gave evidence and the judge adverted specifically in his judgment to their evidence when considering the fibrosis issue. Addressing the evidence of Dr Hinde and Dr Kidd, his Honour said (Red Book 42-43):
“Dr Hinde conceded in cross examination that one of the risks associated with the giving of intramuscular injections of iron was fibrosis. His evidence was as follows:
‘Q.And with repeated injections in the one area, one of the risks is it will cause fibrosis and consequential nerve damage?
A. Fibrosis in the muscle, yes.’
Dr Kidd also conceded that fibrosis can be a side effect of an injection of iron. His evidence was as follows:
‘Q.One of the side effects of a number of intramuscular injections, you would be well aware of, is fibrosis, isn’t that right?
A. Yes.’
However, Dr Kidd in cross examination gave further evidence, as follows, about fibrosis:
‘Q.And that comes from receiving a number of injections in the same place over an extended period of time?
A.Yes.
Q.And you knew that she had received intramuscular injections in the upper quadrant of her left and right buttocks over an extended period of time?
A.Not exactly because I wasn’t informed about all the previous administrations.
Q.But you knew that at that stage she had substantial staining such that you chose to use what has been described as a more risk prone procedure of intravenous (sic) in order to avoid the problems she already was showing in the buttock?
A.Not exactly, I was more concerned with it from the point of view that I did not wish to make more cosmetic damage to her buttocks.’”
His Honour went to consider the significance of the evidence of Dr Benson (Red Book 43-44):
“In terms of establishing that the plaintiff has fibrosis in her buttocks the plaintiff relies on the evidence of Dr Benson who, in his report of 5 April 1995 expressed the opinion that the administration of intramuscular iron injections by Dr Kidd had probably contributed to a degree of fibrosis and there may well have been some local nerve damage. However the nerve damage had not been objectively demonstrated on either nerve conduction or EMG studies. I did not understand Dr Benson to suggest that the injections which the plaintiff received in the Hospital in August 1984 per se caused fibrosis.”
The judge also expressly considered the evidence of Dr Freedman, which evidence was in report form only (Red Book 44):
“The plaintiff also relied on the opinion of Dr Freedman whose report of 13 July 1998 was in evidence. First of all, Dr Freedman could not be cross examined due to illness. Secondly, Dr Freedman relied on the history given to him by the plaintiff which I consider was unreliable. Next Dr Freedman said in his report:
‘In summary, it is my view that Mrs McCarthy had an excessive and unnecessary number of IMI injections into both buttocks causing local irritation. The muscles were irritated and lost strength. The stain was very sensitive and some degree of healing with fibrosis took place over the years. Also that the swelling and irritation of the tissues were caused by the intramuscular iron injections.’
None of the other medical practitioners whose reports are before the Court (and there is a deal of them) mention swelling. Dr Freedman is out of step with his colleagues in this regard. Moreover, Dr Freedman does not suggest that the swelling and irritation of the tissues were caused by the August 1984 injections alone; he attributes the swelling and irritation of tissues to the excessive and unnecessary number of intramuscular injections of iron. However, there is no evidence to support Dr Freedman’s assertion that the plaintiff had an excessive number of iron injections, or more to the point, how many constituted an ‘excessive number’. Also, there is no satisfactory evidence as to the number of injections which the plaintiff received.”

The evidence of other medical practitioners was placed before the court in report form. This evidence included reports from the following doctors:
Dr Hicks (Blue Book 23):
On 29 October 1985 Dr Hicks reported that the appellant provided him with a history of developing pain in her right hip “three to four weeks ago”. The doctor saw x-rays that showed calcification in the right hip and degenerative changes in the lumbo sacral spine. He commented that “the calcification adjacent to her hip may reflect repeated iron injections rather than being true bursitis.” The doctor felt that the recurrent hip and leg pain came from her back.
Dr Best (Blue Book 24):
On 1 July 1986 Dr Best, orthopaedic surgeon, reported following a consultation on 25 June 1986. The history which the appellant gave Dr Best was that she had had pain in the right buttock radiating into the right thigh for about a year (it is to be observed that on this history the pain began in mid 1985). Dr Best saw some x-rays but considered there was very little evidence that the symptoms were of spinal origin. He felt they may be related to nerve irritation but he expressed no opinion as to what may have caused that irritation.
Prof Ghabrial (Blue Book 25):
Prof Ghabrial saw the appellant for the purposes of his report on 19 June 1986. The professor noted that the appellant was complaining of pain in the right buttock but he could find nothing wrong with her. He opined:
“I think the whole problem is just the bruising in her right buttock to a vitamin injection and I could not find any clinical signs at all to point to anything organically wrong…”
The report does not reveal what particular injection the doctor was referring to but it is not possible on that report to link the opinion to any one of the six injections administered in hospital in 1984.
Dr Tinning (Blue Book 28):
Dr Tinning assessed the appellant in July 1986 and observed that he found it difficult to obtain a coherent statement from her. He did observe discolouration in the buttock region which he thought was probably due to injections of iron but he remarked that the discolouration was well away from any area that would involve the sciatic nerves. Dr Tinning felt that the appellant’s problem was “psychosomatic”.
Dr Ostinga (Blue Book 30):
Dr Ostinga assessed the appellant in August 1986. He obtained a history from the appellant attributing her symptoms to the iron injections following her hysterectomy. Dr Ostinga found staining of the buttocks. He said there was nothing to suggest that the appellant had suffered an iron injection into her sciatic nerve but he did not rule out the possibility of deep scarring in the buttocks in some way affecting the sciatic nerve. Indeed, he went so far as to say: “This is the most likely cause of her problem.” He thought that the calcification in the greater trochanter region upon which Dr Hicks had commented was an incidental finding.
Dr Michael Walker (Blue Blook 32):
Dr Walker saw the appellant on 12 September 1986 and attributed buttock pain to the effects of the iron injections but gave no explanation for this.
Dr Grant Walker (Blue Book 33):
Dr Walker saw the appellant on 15 March 1990. The appellant gave him a history of repeated iron injections for over fourteen years and the development of severe buttock pain during the course of the injections in 1984 but went on to say she had always been tender in the buttocks even before 1984. Dr Walker said that he would presume that the pain was due to the iron injections.
Dr Morgan (Blue Book 35):
Dr Morgan first saw the appellant in September 1986 and obtained a history of frequent iron injections up to twice weekly prior to the hysterectomy. The appellant also gave a history that she had been given ten injections of iron in the post operative period. On examination Dr Morgan found nothing to indicate involvement of the right sciatic nerve but noted that the pain corresponded with the distribution of the superior gluteal nerve and in a later report of 10 October 1986 Dr Morgan expressed the belief that the appellant had some neuralgic injury occasioned by the injections. Then in May 1988 he said that the pain was “probably of iatrogenic origin.”
Dr Stening (Blue Book 43):
Dr Stening saw the appellant on 3 November 1986. The appellant produced a CAT scan which showed a mild L5-S1 intervertebral disc protrusion. He tended to agree with Dr Morgan that the symptoms were coming from the superior gluteal nerves but suggested an EMG to exclude sciatic nerve pathology.
Dr Etheredge (Blue Book 44):
Dr Etheredge reported on 20 March 1987 that intramuscular iron injections “have been well described to cause intramuscular fibrosis.” However, he noted the inconsistency in the numerous medical reports he had reviewed concerning the relationship between the injections and the complaints, and said that
“before one can confirm a diagnosis of nerve fibrosis due to the injections, other medical conditions which could cause similar symptoms independent of previous injections need to be excluded. These conditions include neurologic problems, disc disease and psychological conditions.”
Dr Holland (Blue Book 47):
Dr Holland saw the appellant in March 1987, presenting with a complaint of buttock pain. He felt that a lot of the appellant’s pain problem was related to probably local tissue damage in the distribution of the superior gluteal nerve but that there was also some L5 nerve root compression.
Dr Crimmins (Blue Book 50):
Dr Crimmins obtained a history of right buttock pain present for three years prior to July 1987. He concluded his report with this “impression”:
“It is very unclear what is going on with this patient, whether it is actually a musculo skeletal pain due to the sight (sic) of injection but in view of the weakness and the sequelae of buttocks injections we have organised nerve conduction studies to exclude sciatic nerve involvement.”
Dr Cho (Blue Book 55):
Dr Cho first saw the appellant on 24 August 1987. He found himself unable to express an opinion as to whether the appellant’s symptoms were attributable to the numerous injections of iron.
Dr Fale (Blue Book 63):
Dr Fale saw the appellant in November 1987 and was given a history of iron injections over a period of seventeen years with symptoms of pain in the right buttock and weakness in the right leg following the post hysterectomy injections. On the history Dr Fale considered that the appellant’s problem came from possible damage to the sciatic nerve or gluteal muscles at the time of the iron injections “some years ago”. However, Dr Fale considered that the appellant’s main problem was a marked functional overlay.
Dr Gudex (Blue Book 82):
Dr Gudex, radiologist, reported on CT scanning conducted on 24 October 1989:
“Scans from the iliac crest to below the gluteal muscles were performed… The gluteal muscles and soft tissues of the buttocks are unremarkable by CT scan. There are no calcifications. No mass or asymmetry is seen. There are neurovascular structures at each sciatic notch but no focal lesion is recognised…”
Dr Gale (Blue Book 90):
Dr Gale first saw the appellant on 27 March 1990 when she presented giving a history which the doctor described as “quite convoluted”. Dr Gale considered that the appellant probably had a gluteal nerve lesion but he did not attribute it to any particular injection or injections. Later, in December 1999, he reported again, having seen the appellant for the third time on 15 November 1999. He said it was
“possible for repeated injections of iron in the buttock to lead to scarring and this scarring in turn could theoretically lead to damage to the superior gluteal nerve.”
He considered that a very helpful test would be EMG studies of the gluteal muscles.
Dr Hession (Blue Book 94):
Dr Hession saw the appellant on 21 May 1991. The appellant gave him a history of six courses of intramuscular iron injections since 1970 which courses were administered five times a week for two or three weeks. The history given by the appellant on this occasion was an awareness of tenderness in the buttocks soon after the first injection and much soreness following the post hysterectomy injections. The doctor opined that the pain in both buttocks and wasting on the left side were symptoms “attributable to the effects of multiple intramuscular injections.”
The evidence reviewed did not disclose a consensus of medical opinion. Some of the doctors supported a possible diagnosis of fibrosis and afforded support for the proposition that it was possible that the appellant had persisting symptoms referable to the many iron injections that had been administered from 1970 onwards. However, the appellant had to prove on the balance of probabilities that the injections administered in hospital in August 1984 had either caused or aggravated such a condition.
His Honour accepted the respondent’s submission that there was no objective or clinical evidence that the appellant had fibrosis in her buttocks. That was a finding open to his Honour, and it is to be noted that there were no definitive EMG studies in evidence.
His Honour adverted to other possible explanations for the symptoms with which the appellant presented over the years and in this connection referred to the reports of Dr Hicks, Dr Best, Dr Ostinga, Dr Walker, Dr Stening, Dr Etheredge, Dr Holland, Dr Abrahams, Dr Crimmins, Dr Cho, Dr Fale and Dr Morgan. His Honour proceeded then to express the finding which I have earlier recorded that he was not satisfied on the balance of probabilities that the appellant had fibrosis in the buttocks caused by too many injections.
It seems to me that the finding expressed was a finding properly open to his Honour. Even if the appellant had been shown to have fibrosis in her buttocks, with or without nerve involvement, I do not consider that the evidence would have permitted a finding that the post hysterectomy injections administered in hospital contributed to that condition, given the lengthy and incomplete history of iron injections.
The reliability of the appellant as a historian was of very real importance, not only bearing upon the opinions as to diagnosis and causation expressed by the doctors, but also bearing upon the findings ultimately made by his Honour and challenged in this ground of appeal. Consideration of the judgment makes it clear that his Honour did not regard the appellant as a reliable historian. Indeed, he said as much (Red Book 44-45):
“At best the plaintiff was a poor historian; at worst she exaggerated the number of injections she received. The position is clouded by the period of time involved and the significant gaps between injections.”
There are many other observations in the judgment reflecting his Honour’s adverse assessment of the appellant’s reliability:
(i)the judge rejected the appellant’s evidence that she was given an injection by a male nurse and the rest of the injections by Sister Kaczor (Red Book 24);
(ii)His Honour expressly found that the injections were given correctly by Sisters Kaczor, McCallum and Kurthi, that nothing untoward occurred at the time of the giving of the injections and that the appellant did not cry out or complain in any way at the time those injections were given.
Those findings involved rejection of evidence given by the appellant (Red Book 27-28).
(iii)His Honour rejected evidence given by the appellant that Dr Marsh, when examining her after she came out of hospital, said “My God, what have they done to you.” (Red Book 28);
(iv)His Honour found that he did not accept evidence given by the appellant that whilst she remained in hospital after the hysterectomy, she complained daily to Dr Kidd about the injections (Red Book 29).
The appellant, contrary to what was contained in the report of Dr McMahon dated 11 January 1984 (set out in para 11 above), denied telling that doctor that iron pills made her ill and that she would be better on iron injections. The judge did not accept the appellant’s evidence in this regard, preferring the contemporaneous report of the doctor of 11 January 1984.
Having observed the appellant in the witness box, the trial judge had an advantage not enjoyed by this Court and his assessment as to the appellant’s reliability is an assessment which this Court must in the circumstances accept: see Devries v Australian National Railways Commission (1992-93) 177 CLR 472, in particular at 479.
I consider that the finding challenged in the first ground of appeal argued by Mr Campbell was a finding properly open to the trial judge and properly made by him. Accordingly this ground of challenge has not been substantiated.
Ground 2
As the manner of expression of this ground recognises, the judge found that the first respondent had failed to give a warning to the appellant in respect of the risk of injury arising from repeated injections into her buttocks. The thrust of the submission however is that the judge did not determine the appropriate content of the warning which ought to have been given.
The judge did not define in the course of the expression of his reasons what ought to have been the content of an appropriate warning. However, Mr Campbell has submitted that it is to be inferred that the judge was in error in determining the content of the warning by reason of references made to the opinion of individual medical practitioners.
Assuming for the present the existence of a duty to warn in the terms for which the appellant contends, I am by no means persuaded that the judge misdirected himself as to the appropriate content of such warning. It is true that the judge referred to the evidence of a number of doctors in the context of considering whether there was a need for a warning:
(i)his Honour referred to the evidence of Dr Benson when specifically asked whether it was appropriate to advise of a risk that repeated injections might cause some sort of fibrosis in the buttocks. Dr Benson defined the accepted risk of repeated injections as iron staining of the tissues and he said further that there were problems of reaction in the muscles causing, over a period of time, fibrosis;
(ii)the judge referred to the report of Dr Freedman of 13 July 1998 and to that expert’s statement
“In this particular case of intramuscular iron injections I would expect that the patient be told that there may be pain and there would be some staining of the buttocks.”
His Honour noted, having recorded that expression of opinion, that Dr Freedman did not mention the need to warn as to the possibility of fibrosis;
(iii)the judge referred to the report of Prof Shearman in which that expert stated:
“the patient should be warned that with intramuscular injections skin staining, which will be permanent, occurs almost invariably…”
His Honour observed, having recorded the professor’s opinion, that that expert also made no reference of the need to warn of the risk of fibrosis.
I do not infer from the mere recording of those opinions and the observation that his Honour made concerning what was said by Dr Freedman and Prof Shearman that his Honour was failing to heed what was decided in Rogers v Whitaker (1992) 175 CLR 479. Whilst the High Court there declined to follow the earlier English decisions in Bolam v Friern Hospital Management Committee (1957) 1 WLR 582; (1957) 2 All ER 118 and Sidaway v Governors of Bethlem Royal Hospital (1985) AC 871, it did not decide that expert opinion on the need to warn or the content of the warning was irrelevant. This was given emphasis in the judgment of Gleeson CJ in Rosenberg v Percival (2001) 178 ALR 577. The Chief Justice, in referring to the decision of the High Court in Rogers v Whitaker not to follow the English decisions mentioned went on to say this:
“This Court preferred the approach of Lord Scarman, who dissented in Sidaway, and who said :
‘In my view the question whether or not the omission to warn constitutes a breach of the doctor's duty of care towards his patient is to be determined not exclusively by reference to the current state of responsible and competent professional opinion and practice at the time, though both are, of course, relevant considerations, but by the court's view as to whether the doctor in advising his patient gave the consideration which the law requires him to give to the right of the patient to make up her own mind in the light of the relevant information whether or not she will accept the treatment which he proposes.’ (emphasis added)
As the above passage, which was quoted with approval in Rogers v Whitaker, makes clear, the relevance of professional practice and opinion was not denied; what was denied was its conclusiveness. In many cases, professional practice and opinion will be the primary, and in some cases it may be the only, basis upon which a court may reasonably act. But, in an action brought by a patient, the responsibility for deciding the content of the doctor's duty of care rests with the court, not with his or her professional colleagues.”
Returning to the present case, it does not follow because his Honour referred to the various expressions of opinion by the doctors, that his Honour misdirected himself as to the terms of any warning that ought to have been given. It was not indicative of error for his Honour to have referred to the opinions of the three experts. It became unnecessary for the judge to spell out the terms of the warning which he perceived should have been given because of the finding he proceeded to make that the appellant would not have heeded such warning. However, his Honour said (Red Book 57):
“In reality, however, I am of the view that the plaintiff would not have heeded any warning, if one had been given by Dr Kidd or members of the hospital nursing staff in August 1984.”
Then later (Red Book 58):
“I am not therefore satisfied in the light of all the evidence that had a specific warning been given to the plaintiff in August 1984 that intramuscular injections of iron could cause fibrosis, this warning would have been heeded by the plaintiff.”
The findings above expressed indicate that his Honour had in mind that the warning which the first respondent failed to give should have included a warning against the risk of fibrosis. In any event these findings deprive the absence of warning of any practical consequence.
In my opinion, ground 2 has not been established.
I should add that I have considerable reservations as to whether, on the evidence adduced in this case, the appellant did establish that the first respondent had a duty to warn the appellant in August 1984 of the risks of fibrosis, but it becomes unnecessary to explore this further because, making the assumption in the appellant’s favour that there was a duty to warn in the terms advanced on her behalf, it does not affect the outcome of this appeal.
Grounds 3 and 4
It is convenient to consider these grounds together.
The appellant gave the following evidence concerning the absence of warning by Dr Kidd and as to how she would have responded to an alternative of taking iron orally had such alternative been offered (Black Book 13-14):
“Q.Now before you were given, or commenced on that course of injections, first of all, did Dr Kidd advise you on any risks associated with it?
A.Never.
Q.Were you offered the option of taking the oral form of iron?
A.No I wasn’t.
Q.Had you been offered the option of taking the oral form of iron rather than the intramuscular one, would you have taken it?
A.Of course I would. They were painful needles.”
His Honour did not accept that evidence, as appears from a consideration of the relevant findings. Those findings and the reasons for them were expressed in the following passage in the judgment (Red Book 57-59):
“In reality, however, I am of the view that the plaintiff would not have heeded any warning, if one had been given by Dr Kidd or members of the Hospital nursing staff in August 1984. The plaintiff wished to have intramuscular injections of iron and persisted with injections even though warned. The following evidence is pertinent:
(a)In January 1984 Mrs McCarthy had already rejected iron tablets when Dr McMahon suggested them to her. This was because they had made her ill. In fact, Mrs McCarthy insisted that Dr McMahon give her iron injections.
(b)According to Dr Wijesena, the plaintiff had a good knowledge of iron injections. Clearly the plaintiff preferred iron injections and she had accepted those injections, even though they were painful, periodically over 14 years.
(c)The plaintiff persisted with iron injections. Dr Marsh in his report of 24 March 1988 recalls ‘trying to convince her of the pitfalls of iron therapy and the strong indications for an hysterectomy’.
(d)Whilst acknowledging the plaintiff’s entitlement to choose, nevertheless the plaintiff has a history, and it appears to be in her nature, to argue with doctors and act inconsistently with their advice. One example is the broken wrist scenario already mentioned. More pertinently, Dr McMahon, Dr Marsh and Dr Kidd all considered that an hysterectomy was the appropriate answer to her problems of anaemia (which are well documented in the medical evidence before the Court) but the plaintiff declined, opting in one instance for a tubal ligation, in another asking for a dilatation and curette. Similarly in August 1984 when iron was to be given intravenously the plaintiff rejected this, with the result that she received it intramuscularly.
(e)The plaintiff knew and realised she had benefited in the past from iron injections. The post operative records of the first defendant demonstrate that she quickly returned to good health following the operation after receiving the iron intramuscularly.
I am not therefore satisfied, in the light of all of the evidence that had a specific warning been given to the plaintiff in August 1984 that intramuscular injections of iron could cause fibrosis, this warning would have been heeded by the plaintiff. The plaintiff had already received an unknown number of iron injections over a period of 14 years, often at her own instigation. A warning would have made no difference. I therefore do not accept the plaintiff’s evidence that if she had been warned and offered oral iron in August 1994 she would have taken it in lieu of the injection.”

The inquiry as to what would have been the response to a warning if given was necessarily hypothetical. It involved the application of a subjective test: see Chappel v Hart (supra) at 246(32) and 272(93) and Rosenberg (supra) at 582(24). The judge plainly recognised the subjective nature of the inquiry, as his reasons demonstrate.
In determining what the appellant’s response would have been, it was necessary for the judge to make his assessment of the appellant, and in making such assessment his Honour had the benefit of listening to and observing the appellant in the witness box. This Court has to recognise that advantage, which, of course, it does not share.
In Rosenberg (supra) McHugh J said at 583(27):
“When the tribunal of fact has rejected the patient's evidence that he or she would not have proceeded with the surgery, however, the ordinary restrictions on appellate review of fact finding apply. If the tribunal of fact is a judge, as in the present case, an appellate court must respect the advantage that the judge has had over the appellate court in seeing and hearing the patient give evidence. Ordinarily, the appellate court cannot reverse the finding of the judge unless it is satisfied ‘that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial judge's conclusion’ (Watt or Thomas v Thomas [1947] AC 484 at 488; see also Paterson v Paterson (1953) 89 CLR 212 at 224) . Unless that condition is satisfied or the judge has misdirected himself or herself or has misapprehended the evidence or has indicated that the demeanour of the patient played no part in the finding, the appellate court cannot reverse it.”
The principles above stated apply here. See also Devries v Australian National Railways Commission (supra).
The judge identified evidence in that passage in his judgment above extracted at para 65 which he regarded as being of significance and the sources identified reveal that the summary of evidence was accurate. In reviewing that summary, I do so in the order in which his Honour expressed it, using the same sub-paragraph lettering:
(a)The appellant’s preference for iron injections as expressed to Dr McMahon is evidenced by Dr McMahon’s report of 11 January 1984 (Blue Book 108) I set out the relevant content in para 11 of this judgment. The report clearly recorded the appellant’s rejection of iron tablets and her preference for iron injections.
(b)The report of Dr Wijesena dated 18 November 1987 was in evidence before his Honour (Blue Book 66) and it records that:
(i)the appellant attended upon the doctor for iron injections on 12 January 1984, 19 January 1984, and 23 January 1984;
(ii)the appellant expressed her wish to the doctor to continue with the iron treatment at Raymond Terrace;
(iii)the doctor was impressed that the appellant was “well informed about iron therapy”.
It was a matter of established history that the appellant had accepted injections of iron periodically over fourteen years, it having been recorded in the second respondent’s hospital records as long ago as 13 February 1972 that the appellant “could not tolerate the iron tablets” (Blue Book 259).
(c)The report of Dr Marsh of 24 March 1988 (Blue Book 73) plainly supported what his Honour drew from it. The doctor wrote:
“The indications for the iron injections were: she had menorrhagia resulting in chronic iron deficiency and anaemia. She declined to have a hysterectomy. Oral iron was either poorly tolerated or ineffective in maintaining her haemoglobin levels… The iron injections were prescribed because of Mrs Beagan’s refusal to have a hysterectomy…
I remember clearly trying to convince her of the pitfalls of iron therapy and the strong indications for a hysterectomy. I clearly remember that Mrs Beagan repeatedly declined to consent to the operation…
…prior to giving the injection of iron I recall warning Mrs Beagan of the potential problems of staining at the injection sight, pain, allergic reactions, etc.”
(d)His Honour identified evidentiary sources of the appellant’s history supporting the conclusions that she acted inconsistently with professional advice. The reference to the broken wrist episode is a reference to what occurred in the appellant’s treatment at Westmead Hospital in April 1988 (Blue Book 383-385). The appellant insisted upon a back slab plaster in the management of a suspected collies fracture and signed a note accepting full responsibility for changing to that form of restraint, acknowledging “This is not the correct management for a (?) collies fracture.”
The reference in (d) to Dr Marsh is clearly enough a reference to what is recorded in his letter of 24 March 1988 above set out. The reference to Dr McMahon is presumably a reference to the advice he gave the appellant on 11 January 1984 and what is recorded then in Dr McMahon’s letter to Dr Thine. I referred to this earlier in para 11 of this judgment. So far as Dr Kidd is concerned, the evidence at the trial disclosed that as long ago as 1980 Dr Kidd advised the appellant to have a hysterectomy and the appellant was admitted to hospital on 22 October 1980 for such an operation (Blue Book 265). The appellant signed a consent to undergo that procedure on the same date (Blue Book 269). However, the appellant later opted to have a tubal ligation instead. So far as the injections of iron in August 1984 are concerned, Dr Kidd prescribed intravenous administration but this was changed when the appellant protested.
(e)The evidence warranted the conclusion that prior to 1984 the appellant had benefited from iron injections.
It seems to me that the evidence sufficiently supported the conclusion which his Honour reached that had the appellant been given a specific warning in August 1984 that intramuscular injections of iron could cause fibrosis, this warning would not have been heeded by the appellant.
To my mind it has not been demonstrated that his Honour misdirected himself or that he misunderstood the evidence relevant to the determination of the hypothetical issue. Plainly his assessment of the appellant was an essential factor influencing his decision and this is a factor which this Court is not in a position to revisit.
Neither ground 3 nor ground 4 has been proved.
In the result, I propose that the appeal be dismissed with costs.
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LAST UPDATED: 12/09/2001

[2001] NSWCA 304

12 September 2001

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