Morocz v Marshman

[2015] NSWSC 149

Supreme Court

New South Wales

Medium Neutral Citation:	Morocz v Marshman [2015] NSWSC 149
Hearing dates:	10 February 2015
Decision date:	06 March 2015
Jurisdiction:	Common Law
Before:	Harrison J
Decision:	1. I dismiss the application for the taking of evidence by video link except in the case of Drs O’Reilly and Banks if required. 2. I decline to order that the issues of liability and damages be heard separately. 3. I order that the costs of this application be the costs in the proceedings.
Catchwords:	MEDICAL NEGLIGENCE – evidence – expert evidence – reports – admissibility of expert reports – evidence by video link – whether order should be made in respect of experts whose reports are inadmissible – whether separate trial of damages and liability
Cases Cited:	Makita (Aust) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705
Category:	Procedural and other rulings
Parties:	Maria Morocz (Plaintiff) Dr David Marshman (Defendant)
Representation:	Counsel: J Anderson (Plaintiff) K Burke (Defendant) Solicitors: Terence Stern (Plaintiff) TressCox Lawyers (Defendant)
File Number(s):	2010/32578
Publication restriction:	Nil

Judgment

1. HIS HONOUR: This application and these proceedings relevantly raise two principal liability issues:

1. Of what risks, if any, associated with the performance by the defendant of a surgical procedure upon the plaintiff known as a bilateral endoscopic thoracic sympathectomy was the plaintiff not properly or adequately warned by the defendant? That question necessarily involves the anterior determination of precisely what were the risks associated with the performance of that surgical procedure.

2. From what conditions, if any, does the plaintiff now suffer that were legally caused by the post-operative manifestation of those risks of undergoing a bilateral endoscopic thoracic sympathectomy of which the plaintiff was not properly or adequately warned by the defendant?

2. The first question requires an understanding of what risks a surgeon in the position of the defendant should have drawn to the plaintiff’s attention prior to the operation in order to enable her to make informed decisions about the surgery that was contemplated, including the decision about whether or not to undertake the procedure at all. The second question involves a comparison between the plaintiff’s preoperative condition and her current condition in order to assess or determine whether or not any injuries or disabilities from which she now allegedly suffers correspond to the manifestation of surgical risks about which she should have been warned but allegedly was not.

3. The plaintiff has sought an order that certain of the expert witnesses upon whose evidence she relies be permitted to give their evidence by video link. The witnesses in question are located either interstate or overseas and it is uncontroversial that a significant saving of costs would attend taking their evidence in that way.

4. The defendant has raised a preliminary objection to the order upon the basis that the witnesses concerned should not be permitted to give evidence at all for the reason that they are not qualified to give expert evidence, or have offered opinions outside their professed area of expertise, or that their evidence is irrelevant to any issue in the proceedings. There is a relationship in some cases between or among those complaints.

Background

5. The plaintiff suffered from a condition known as palmar hyperhidrosis or sweaty palms. The defendant performed a bilateral endoscopic thoracic sympathectomy on 6 February 2007. That procedure entailed the division of nerves through surgical incisions in the armpits and the sequential but temporary collapse of the lungs to facilitate operative access. Following the operation the plaintiff complained of a series of significant problems including bradycardia, severe thoracic pain, post-traumatic stress disorder, depression, anxiety and suppression of the autonomous nervous system causing impairment of various bodily systems including hormonal secretion, and suppressed libido.

6. The plaintiff alleges that the defendant negligently failed to warn her of the risks of such surgery, including both the conditions from which she now suffers and that the surgery may prove to be ineffective, or to advise her of available alternative conservative therapies. The plaintiff makes no complaint that the procedure itself was not performed properly.

7. In accordance with my directions, the plaintiff and the defendant have each filed statements of evidence. There is a contest between them with respect to the scope and content of the advice or warnings given to the plaintiff by the defendant. That factual contest does not arise for adjudication on this application but will be a significant matter for the trial. However, precisely what the plaintiff should have been told by the defendant is presently relevant because it is necessarily a question for appropriately qualified medical opinion. The plaintiff has served evidence in support of that aspect of her case but the defendant contests the admissibility of some of it.

8. The plaintiff has also served evidence in support of her contention that the conditions from which she now suffers correspond to or match the very conditions about which she says she should have been warned but was not. The defendant has contested the admissibility of some, but not all, of that evidence.

9. The defendant has raised a series of practical objections to the taking of evidence by video link as well. These are as follows:

• Likely stand by costs associated with out of hours use of overseas and interstate facilities and the likely stand by costs of witnesses waiting to give their evidence;

• No apparent identification of provision for out of hours offices/rooms to be used by the witnesses whilst they are awaiting to be connected to give evidence via video link (assuming some delay with evidence being adduced of another witness beforehand or technical difficulties) or the associated costs;

• Likely costs associated with the out of hours use of an attendant to assist with the technology itself and/or assist with the provision of documents the witnesses will need to be taken to, during the course of giving their evidence;

• No identification as to how, if at all, concurrent evidence or a conclave meeting amongst commonality experts (if any) could take place from multiple video link facilities operated simultaneously;

• The compatibility of video link facilities overseas and interstate with the Supreme Court facilities, including the compatibility of the “software” Professor Imrich intends to purchase for his home computer..

10. It is in my opinion unnecessary to consider these practical considerations with respect to the following experts, whose evidence I consider is inadmissible on a number of grounds. These are discussed below in the context of a consideration of the particular expert concerned.

Associate Professor Egilius Leonardus Spierings

11. Professor Spierings provided a report dated 13 November 2009. That report is on letterhead indicating Brigham and Women’s Hospital and Harvard Medical School. Professor Spierings’ voluminous curriculum vitae are appended to his report. It appears that Professor Spierings was at the date of his report an associate clinical professor in the Department of Neurology at the Harvard Medical School in Boston, Massachusetts.

12. Professor Spierings has not examined the plaintiff.

13. Professor Spierings was provided with a history of the professional relationship between the plaintiff and the defendant. He was also provided with a pre and post-operative description of the plaintiff’s medical conditions. Professor Spierings proffered the following opinion:

“…Ms Morocz has developed numerous symptoms, apparently in an intensity that they have rendered her fully disabled from being gainfully employed. Given the nature of the symptoms, the surgery performed, the complexity in structure and function of the sympathetic nervous system, and the importance of the autonomic nervous system, of which the sympathetic nervous system is an integral part, in physical, emotional, and mental functioning, there is a reasonable degree of medical certainty that these symptoms are causally related to the surgery as performed by Dr Marshman on 6 February 2007.”

14. Professor Spierings offers no identifiable reasoning to support his conclusions. He also offers opinions concerning the plaintiff’s neuropsychological assessment that appears clearly to have been outside his area of expertise. That conspicuously includes references to the plaintiff’s emotional and cognitive symptoms. Professor Spierings concludes his report in these terms:

“In summary, the surgery as performed by Dr Marshman caused a significant and widespread derangement in function of the autonomic nervous system, with the sympathetic nervous system being particularly affected. The derangement caused Ms Morocz to develop physical, emotional, and cognitive symptoms in an intensity that they have rendered her fully disabled from being gainfully employed. With the information he gave her prior to the surgery based on what he writes in his letter dated 4 August 2006, Dr Marshman may have understated the potential side effects of the procedure, as based on a limited review of the literature available in 2006.”

15. Professor Spierings is not apparently a surgeon. He certainly professes no expertise in the performance of a bilateral endoscopic thoracic sympathectomy. He neither offers nor would he appear to be in a position to offer a view about what a doctor in the defendant’s position in 2007 should have told a person in the position of the plaintiff about her contemplated surgery. He has never examined the plaintiff and offers what are therefore only secondhand comments upon the findings and observations of others. It seems to me that it is an essential precondition to the offering of a comprehensible and reliable opinion about the plaintiff’s current medical conditions that any expert medical practitioner doing so should have examined her at least once. Nor is Professor Spierings’ report capable of being salvaged as a relevantly qualified professional comment in answer to a series of yet to be established assumptions that he was asked to make.

16. This report fails at the threshold to conform to the essential requirements for the admissibility of an expert report: see Makita (Aust) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 at [85] as follows:

“[85] In short, if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of ‘specialised knowledge’; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be ‘wholly or substantially based on the witness’s expert knowledge’; so far as the opinion is based on facts ‘observed’ by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on ‘assumed’ or ‘accepted’ facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert’s evidence must explain how the field of ‘specialised knowledge’ in which the witness is expert by reason of ‘training, study or experience’, and on which the opinion is ‘wholly or substantially based’, applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert’s specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight. And an attempt to make the basis of the opinion explicit may reveal that it is not based on specialised expert knowledge, but, to use Gleeson CJ’s characterisation of the evidence in HG v R (1999) 197 CLR 414, on ‘a combination of speculation, inference, personal and second-hand views as to the credibility of the complainant, and a process of reasoning which went well beyond the field of expertise’ (at [41]).”

17. Professor Spierings has not performed this type of surgery. He is not in my opinion possessed of specialised knowledge in this field permitting him to express or offer an opinion as to the content of advice or warnings that the plaintiff should have been given about such surgery. I consider that Professor Spierings’ report is inadmissible and that it is therefore unnecessary to consider the question of whether or not his evidence ought to be taken via some appropriate video link.

Professor Paul Komesaroff

18. Professor Komesaroff is a physician, medical researcher and philosopher at Monash University in Melbourne, Victoria. He is the Professor of Medicine and Director of the Centre for Ethics in Medicine and Society. He is in addition a practising clinician specialising in endocrinology. He is not a surgeon and he did not examine the plaintiff.

19. Professor Komesaroff provided a report dated 30 May 2011. It is fair to say that the opinions expressed by him proceed from an ethical perspective, rather than from a surgical perspective.

20. Professor Komesaroff was given a list of things from which the plaintiff claims to suffer as the result of undergoing the bilateral endoscopic thoracic sympathectomy at the hands of the defendant. That list was as follows:

• Injury to the sympathetic chain leading to pain and other symptoms;

• Neuropathic pain and numbness in both hands;

• Intense prickling and itching sensations prior to the onset of sweating, stabbing pain in her armpits and shoulder areas, sometimes triggered by sudden noise;

• Cold sensitivity;

• Pain in the small joints of the hands and feet;

• Tingling sensations in her spine;

• Swelling of her legs;

• Redness and burning sensations in the toes and pain and extreme sensitivity to touch and heat and loss of sensation in the area;

• Blurry vision in the left eye;

• Anhidrosis in the upper body;

• Return of palmar sweating and sweating of the feet;

• Abnormal, severe sweating of the lower body triggered by emotional discomfort, stress and temperature;

• Gustatory sweating;

• Headaches, migraines, dizziness and nausea;

• Chronic fatigue

• A lowered heart rate;

• Irregular menstrual cycle and an inability to achieve orgasm;

• Personality change and impaired memory and concentration;

• Depression.

21. Professor Komesaroff then proceeds to discuss the plaintiff’s operation under the heading “Evidence regarding the effects of sympathectomy, including its risks and benefits” as follows:

“I will not attempt to summarise the scientific and medical literature regarding the role and function of the sympathetic nervous system and the effects of sympathectomy, including the specific effects of endoscopic thoracic sympathectomy. I would simply make the following points:

The sympathetic and parasympathetic nervous systems are involved in a wide range of bodily functions, including emotional and sexual arousal, responses to stress, and control of the functions of the gut, heart, urinary tract and skin, including heart rate and blood pressure, sweating and skin blood flow, gastrointestinal motility and digestion and kidney and bladder function.

There is limited scientific evidence to evaluate the safety and efficacy of ETS and what evidence exists is itself of limited scope and quality.

On the basis of physiological knowledge and clinical experience many of the symptoms described by Ms Morocz are consistent with sympathetic denervation in general or the specific lesion she sustained in particular.

Some of the symptoms could also be attributed to other causes, including depression and anxiety related to a pre-existing disposition or secondary to a perceived unsatisfactory result of surgery.”

22. Professor Komesaroff’s opinion is no more or less than a comment to the effect that “many” of the plaintiff’s stated symptoms coincide, or are consistent, with sympathetic denervation. He does not isolate or identify those symptoms in the body of his report and merely indicates that some others, also unidentified, could be attributable to other causes. To the extent that he refers to “scientific evidence” he neither identifies it nor critically evaluates it.

23. Professor Komesaroff also comments upon the “STS Patient Information Statement” on hyperhidrosis given to the plaintiff by the defendant, a copy of which is appended to the defendant’s evidentiary statement. He reviews that document in generally favourable terms, but then offers the following comments:

“Notwithstanding the above, the statement does not warn about the various other possible adverse effects of surgery, including effects on cardiovascular, sexual and other functioning. Furthermore, the claim that ‘ETS will cure approximately 95-98% of excessive palmar (hand) hyperhidrosis’ is not balanced by a discussion of the relative significance of the claim referred to above that ‘compensatory sweating…occurs in up to 50-60% of patients’. Accordingly, the document omits certain important information that patients may well need to enable them to make appropriately informed decisions regarding whether to proceed to surgery.

Furthermore, it should be stressed that the provision of a written information sheet in itself is not sufficient to ensure that adequate communication and understanding has been achieved. Such documents are at best aids to communication, which must be pursued and tested in face to face settings. Even an assurance from a patient that he or she has read and understood a written statement does not abrogate the responsibility of a clinician to engage in a careful process of dialogue about the various issues referred to elsewhere in this report.”

24. These paragraphs should be considered separately. The first paragraph is concerned only with the STS Patient Information Statement. Professor Komesaroff does not offer an opinion about what a surgeon in the defendant’s position should have said to the plaintiff so much as a commentary on some of the deficiencies in a document that he gave her. That may represent an accurate philosophical and ethical view about doctor and patient relationships but is for present purposes irrelevant to a consideration of whether or not the defendant negligently failed to warn or advise the plaintiff about the risks of the operation in question. It is also patent that Professor Komesaroff is not a surgeon with practical or clinical expertise in the performance of a bilateral endoscopic thoracic sympathectomy.

25. The second paragraph is definitively limited to comment upon the adequacies or deficiencies of written patient information sheets such as the one provided to the plaintiff. Its adequacy or otherwise is not coextensive with either the exercise of due care by the defendant or its absence. Professor Komesaroff’s generic ruminations about such documents is beside any point calling for adjudication in these proceedings.

26. The balance of Professor Komesaroff’s report consisted of a response to a series of questions. Those questions were as follows:

• What are the ethical considerations to which a surgeon should give consideration before proceeding to advise the patient to undertake such surgery?

• What information and risk warnings did those ethical considerations require the surgeon to give to the prospective patient before recommending that she proceed with such surgery?

27. He answered as follows:

“I will answer these questions in relation to the broad issues that need to be taken into account in relation to any surgical procedure. The main issues a surgeon needs to consider are:

• The appropriateness of the surgery in relation to the clinical condition, possible alternative treatments and the patient’s circumstances; in this setting, relevant considerations include the severity of the distress, disability or inconvenience the patient’s symptoms are causing her, the likely risks and benefits of the proposed treatment, and financial or social costs.

• Explanation of the nature of the proposed treatment, what is known about its consequences, including risks and benefits and the nature and quality of the evidence on which such advice is based;

• Where appropriate, an account of the surgeon’s personal experience with the procedure and his or her success and complication rates;

• Identification of any special issues that might be relevant for the patient, including particular anxieties or concerns, and whether these have been adequately addressed in discussion with her;

• Assessment of the patient’s degree of understanding of the information provided and her ability to make a free decision about whether to proceed with the proposed treatment;

• Whether such a free decision has in fact been made and whether additional steps need to be taken, including the provision of further information, opportunities for additional discussion, consultation with third parties, or the observance of a ‘cooling off’ period during which a patient is given an opportunity to reconsider her options.

I would stress that achievement of ‘consent’ requires provision of adequate information, including all information that is of material relevance to the particular patient. This must be expressed in a form that is intelligible at a level that can be understood by the patient and cover the nature of the procedure, the reasons for any recommendations that have been made, and potential benefits and harms associated with it. The disclosure of potential risks or harms must itself include significant and severe adverse events and any other considerations of relevance to the particular patient.”

28. At one level it is unlikely that these opinions are controversial. However, the general nature of the responses means that they are not particularly useful in this case. The second question is entirely directed to one of the issues in this case. However, Professor Komesaroff does not answer it. There may be more than one reason for that. One reason may be that except in a general ethical and philosophical sense, he is not qualified to do so. It is certainly not apparent to me how his study, experience, training or specialised knowledge as a physician specialising in endocrinology and as an ethicist permits or qualifies him to offer expert opinions about the standards of care owed by a surgeon providing specific advice or warnings about the risks associated with a bilateral endoscopic thoracic sympathectomy to a prospective surgical candidate. None of the opinions offered by Professor Komesaroff appears to me to be relevant to failure to warn allegations pleaded by the plaintiff.

29. Professor Komesaroff was next asked these questions:

• In particular, what are the ethical considerations of the introduction of ETS to the uneducated public when such procedure was described in the promotional literature positively and with enthusiasm?

• Further, what are the ethical considerations of a medical professional including Dr Marshman influencing the potential patient’s, including Ms Morocz, perception of the process?

• What advice and/or recommendation did those ethical considerations indicate as being appropriate in this fact situation?

30. Professor Komesaroff’s answer was relevantly as follows:

“In the case of Ms Morocz and the proposal to perform ETS on her, the matters discussed with her should have included the following:

• A clear description of the nature of the procedure and how it is performed;

• A description in terms comprehensible to a layperson of the basic neurobiology and physiology relating to the sympathetic nervous system and its role in the regulation of the cardiovascular and other systems and with respect to emotional, cognitive and sexual functioning;

• The risks of the procedure itself (including possibly the risk of persistent pneumothorax) and of the anaesthetic;

• The effects the patient would be likely to experience in the immediate aftermath of the operation and subsequently, the likely outcomes, in terms of intended and expected benefits and possible short and long term adverse effects, with specific mention of the probability of compensatory sweating and other effects of sectioning the sympathetic chain;

• The surgeon’s own experience with the procedure and his personal success and complication rates;

• If Ms Morocz appeared to be particularly anxious special attention should have been given to any particular concerns she might have had and what she specifically sought to gain from the surgery.”

31. With respect to Professor Komesaroff, these answers are once again unhelpful, to the extent that they amount, with some minor exceptions, to a statement in purely general terms of what the defendant should have said. They are almost entirely devoid of specific detail or assessable content. That appears once again to me to be a function of Professor Komesaroff’s specific lack of familiarity with or expertise concerning the performance of this surgery and the risks associated with it. To that extent once again the opinions expressed are neither relevant to these proceedings nor based upon an identified area of relevant expertise, training, study or experience.

32. The next question asked was this:

• In the light of the symptoms alleged to have been suffered by Ms Morocz the scientific evidence in the literature and the expert opinion provided would you consider that the effects and consequences of the ETS were fairly and appropriately represented to Ms Morocz?

33. There are a number of difficulties with this question. As the professor himself specifically acknowledged, some of the factual details necessary to answer it were outside his personal knowledge. Quite apart from that reasonable and accurate concession, it is clear that the question seeks an answer to one of the ultimate questions in these proceedings. It is inappropriate to ask any expert to do so. More fundamentally, as already indicated, Professor Komesaroff is not suitably qualified to answer the question even if the missing factual matters had been provided to him.

34. Professor Komesaroff was then asked this:

• In your view is it reasonable that disruption and thermal injury to the sympathetic nervous system can explain the wide ranging symptoms of Ms Morocz? If so, what causal relationships can you attribute to the ETS?

35. If I understand this question at all, it seems to require Professor Komesaroff to provide a medical opinion about the performance of the operation and its role in the presentation the symptoms of which the plaintiff thereafter complained. Professor Komesaroff never examined the plaintiff and is accordingly not in a position to answer the question. In my opinion he is not qualified in any appropriate way to comment, as he does, that in his opinion “on the balance of probabilities it is most likely that Ms Morocz’ current medical and psychological complaints are a consequence of the surgical procedure she underwent.”

36. I am not prepared to admit Professor Komesaroff’s report. The question of a video link for his evidence therefore also becomes irrelevant.

Professor Richard Imrich

37. Professor Imrich provided a report dated 18 June 2011. He is an endocrinologist. His curriculum vitae do not indicate any study, experience, and training or specialised knowledge in the surgical field of performing a bilateral endoscopic thoracic sympathectomy. To that extent I consider that he is not qualified to offer opinions upon the particular scope or content of any warning or advice that the defendant should have offered the plaintiff prior to such surgery.

38. Moreover, there is no indication of any basis upon which Professor Imrich is able to express an appropriately supported medical opinion about cardiac function, such as partial cardiac sympathetic denervation. It may well be that the plaintiff suffers from such a condition, and that it is one of the matters of which a prospective surgical candidate in her position in 2007 should have been warned or advised. However, Professor Imrich is not obviously qualified in my view to express an appropriately supported expert medical opinion on either matter.

39. I am not prepared to admit Professor Imrich’s report. The question of a video link for his evidence therefore also becomes irrelevant.

Professor Lilianne Mujica-Parodi

40. Professor Mujica-Parodi is a research neuroscientist and professor of Biomedical Engineering, Psychiatry, and the Program in Neuroscience at the Stony Brook University School of Medicine. She was formerly a professor of Clinical Neuroscience at the Columbia University College of Physicians and Surgeons. Her primary area of expertise is limbic regulation and its interaction with the autonomic nervous system as well as quantitative assessment of control systems regulation in neurobiology and physiology. Professor Mujica-Parodi expressed the opinion in her report dated 29 June 2010 that she believed she was “qualified to speak to the balance between the sympathetic and parasympathetic nervous system, which was disrupted by [the] plaintiff’s cervical sympathectomy, and the likely effects of that disruption upon [the] plaintiff’s neural circuitry responsible for emotion regulation.”

41. The professor is not medically trained. She is neither a physician nor a surgeon. She has not examined the plaintiff. She has obviously not performed a bilateral endoscopic thoracic sympathectomy. Notwithstanding these matters, Professor Mujica-Parodi was asked a series of well framed and pertinent questions, which ought for present purposes to be recorded as follows:

“1. In what circumstances, if any, is elective bilateral sympathectomy indicated for palmar hyperhidrosis? Was it indicated in the circumstances of Maria Morocz?

2. What are the risks of such surgery and what is the magnitude of such risks?

3. What risk warnings ought to be given in respect of such surgery?

4. Dr Marshman provided a hand out “STS Patient Information” to Ms Morocz, following the consultation. Was this sufficient description of the potential side effects of the surgery? If not, why not? Are the consequences of sympathectomy clearly conveyed in this text, so those not familiar with the ANS will understand the consequences of cutting the sympathetic chain at T2?

5. Is there, on the balance of probabilities, a causal connection between the conditions (eg chronic fatigue, cardiac effects, psychological/emotional consequences, neuropathy) which she has since the surgery?

6. Generally, what is the impact of this procedure on the autonomic nervous system and its relationship to the limbic system in the brain (which controls emotion regulation and stress response) and, in particular, on the balance of probabilities, what has the impact of this procedure had on Ms Morocz in the circumstances?

7. Is the outcome of this procedure influenced by the ‘sympathetic tone’ of the patient? Is it possible to gauge the sympathetic tone to assess and predict likely response to the surgery? If the answer to the preceding two questions is ‘YES’, what steps should Dr Marshman have taken to investigate the sympathetic tone of Ms Morocz?

8. Is peripheral autonomic denervation associated with grey matter loss in the area functionally involved in the generation and representation of bodily states of autonomic arousal? If so, what are implications?

9. Does cervical sympathectomy result in reduced vascular tone? Would this affect: cerebral perfusion, cerebral capillary bed, vascular permeability, auto-regulation and metabolism? What are the implications?

10. What are the implications of denervations supersensitivity, especially in the context of cerebral circulation?

11. Can the changes see on MRI 1 and MRI 2 be attributed to the effects of cervical sympathectomy?

12. Are there reports available in the literature that documented the chemical changes that might have contributed and can account for the symptoms and the changes in cognitive function of Ms Morocz?

13. Could sympathectomy impact on and affect SNS activation, cognitive function, mood, arousal, attention, encoding, memory, decision making, fear responses, motivation, drive, spontaneity, creativity, executive function, long-term planning, and the general emotional ‘landscape’ and sense of ‘self’? What are the implications in this case?”

42. It will be apparent that some, although not necessarily all, of these questions are directed to matters that are relevant to these proceedings. Some are not relevant at all. Some are questions calling for expert answers and some are questions that I will be required to answer in accordance with well-known authority. The significance for present purposes of the questions is that, in my opinion, they are not questions that Professor Mujica-Parodi is qualified to answer in the particular context of this case. That is not to say that she is not eminently qualified in her field and perfectly able to furnish responses based upon her particular area of expertise. Unfortunately, that area of expertise is not relevant to the particular inquiries called forth in this case.

43. I do not consider that Professor Mujica-Parodi’s report should be admitted. There is no need therefore to arrange for her evidence to be taken by video link.

Associate Professor Peter Crack

44. Professor Crack provided a report dated 31 March 2011. He is an Associate Professor in the Department of Pharmacology and Therapeutics at the University of Melbourne. He has a BSc (Hons) and a PhD Monash University. He is not medically qualified. He is neither a physician nor a surgeon. He has not examined the plaintiff. He has never performed a bilateral endoscopic thoracic sympathectomy. Clearly he has no history of study, experience, training or specialised knowledge regarding management of patients with hyperhidrosis or those who have undergone a bilateral endoscopic thoracic sympathectomy.

45. Professor Crack was asked the following questions:

“Question 4.1 What other structures and symptoms can be altered by this disruption of the nerve signals and injury? Can the symptoms described by my client be attributed to these changes?

Question 4.2 Can peripheral denervation up-regulate and result in denervation supersensitivity, and cause chemical, neurological, immune responses on the site of the injury/lesion and centrally as a systemic effect.

Question 4.3 Can nerve injury/nerve lesions activate the immune system and trigger inflammatory, endocrine response, autonomic neuropathy and pain conditions?

Question 4.4 Can peripheral denervation result in central nervous system activation?

Question 4.5 Can cervical sympathectomy and subsequent changes impact on the cerebral blood flow, cerebral vascular resistance, cerebral microvascular flow and capillary permeability?

Question 4.6 Can cervical sympathectomy lead to impairment of sympathetic regulation or organs and systems and lead to imbalance of the ANS and subsequent wide-ranging pathology?

Question 4.7 Is imbalance of the ANS involved in the aetiology of various forms of autoimmune disease?

Question 4.8 Is the result of the surgery by definition a surgically induced autonomic neuropathy. - I am not expert to comment on this question?

Question 4.9 Does sympathectomy affect bone and ligament homeostasis?

Question 4.10 Does sympathectomy affect muscle, and blood vessel structure?

Question 4.13 Does sympathectomy affect sensory and vasomotor fibres?

Question 4.14 Would you agree with the proposition that even amongst surgeons performing sympathectomies, the location and the role of the Nerve of Kuntz remains a controversial subject, with widely differing view on its role in the recurrence of sweating?

Question 4.15 In your view, has the anatomy, location, role and function of the Nerve of Kuntz in humans being satisfactorily established?

Question 4.16 What is the role and function and the exact anatomical location of this nerve?

46. Once again I have no doubt that Professor Crack is eminently qualified in his particular field. However, his qualifications are not relevant to the issues in these proceedings. He is not in my opinion qualified to offer medically supported answers to these questions. I am also of the opinion that the questions that Professor Crack has been asked to answer are themselves either completely or substantially irrelevant to the issues in this case.

47. For these reasons there is no need to arrange a video link to take evidence from Professor Crack.

Professor Peter Drummond

48. Professor Drummond is a Professor in the School of Psychology at Murdoch University, Western Australia. He has a BSc (Hons) and a PhD from the University of Queensland. He is not medically qualified. He is neither a physician nor a surgeon. He has not examined the plaintiff. He has never performed a bilateral endoscopic thoracic sympathectomy. Clearly he has no history of study, experience, training or specialised knowledge regarding management of patients with hyperhidrosis or those who have undergone a bilateral endoscopic thoracic sympathectomy.

49. Professor Drummond is not qualified to offer an expert opinion on the question of what warning should have been given to the plaintiff or about what conditions currently afflict her. Professor Drummond’s areas of study, experience, training and specialised knowledge, although extensive, do not touch upon the relevant matters called up for consideration and adjudication by me in this case. His report is therefore entirely irrelevant and should be rejected. For these reasons there is no need to arrange a video link to take evidence from Professor Drummond.

Dr Randy Beck

50. Dr Beck is a chiropractor. He has provided a report dated 25 August 2012. He has a PhD in psychology. He is not medically qualified. He is neither a physician nor a surgeon. He examined the plaintiff, although the precise date of his examination is not stated. He has never performed a bilateral endoscopic thoracic sympathectomy. Clearly he has no history of study, experience, training or specialised knowledge regarding management of patients with hyperhidrosis or those who have undergone a bilateral endoscopic thoracic sympathectomy.

51. Dr Beck was asked a series of questions as follows:

“1. What is your view of the causal connection on the balance of probabilities?

2. Can cervical sympathectomy (burning and disrupting) part of the sympathetic chain lead to impairment of sympathetic regulation of organs and systems and a subsequent shift in homeostasis and pathology?

3. Can cervical sympathectomy (burning and disrupting) part of the sympathetic chain result in injury including neuralgia, neuropathy and inflammatory pain responses?

4. Can cervical sympathectomy (burning and disrupting) part of the sympathetic chain result in arthralgia, joint inflammation and neuropathic pain?

5. Are the symptoms reported by Ms Morocz and supported by medical expert reports, copies of which will be briefed, on the balance of probabilities, consistent with the effects of surgical sympathectomy?

6. Would you agree with the proposition that the cervical sympathectomy triggered the changes which led to the chronic pain condition from which it is alleged Ms Morocz suffers?

52. Dr Beck is not relevantly qualified to answer these questions. He obviously cannot offer any acceptable opinion upon the scope or content of any warning or advice that the plaintiff should have received from the defendant. I accept that Dr Beck has recorded his observations and findings upon examination of the plaintiff. They would appear to be an acceptable contemporaneous recording of complaints and signs made to or observed by him. I propose to hear the parties with respect to the admissibility of that portion of Dr Beck’s report, having regard to the apparent consistency between Dr Beck’s recordings and the plaintiff’s complaints to other examining or treating specialists.

52. I am not, however, prepared to accept the remainder of Dr Beck’s report or the opinions that he expresses. They are either irrelevant to these proceedings, beyond his areas of expertise, or unsupported by scientific reasoning and method in the Makita v Sprowles sense.

53. For these reasons there is no need to arrange a video link to take evidence from Dr Beck.

Comment

55. It is important to understand that the proper inquiry in this case, having regard to the pleadings, is not whether the conditions from which the plaintiff now suffers could or might possibly have been caused, in a factual or medical sense, by her bilateral endoscopic thoracic sympathectomy. The defendant is in this case only alleged to be liable for a failure to advise or to warn about the risk of the adverse consequences of this operation to the extent that they were known or reasonably foreseen as a possibility by specialists qualified to perform and who performed the operation in question in 2007. The post-operative appearance or manifestation in the plaintiff of any conditions known to be one of the risks of the operation is capable, all other things being equal, of supporting an inference favourable to the plaintiff that the conditions that emerged are causally connected to the operation as a matter of fact.

56. In this case, a significant amount of the expert opinion marshalled by the plaintiff has been on one view inappropriately directed to the possible establishment of a causal connection between the operation and the plaintiff’s condition without regard to what was known or understood preoperatively to be the surgical risks of the procedure. For example, it would be irrelevant in the context of the present litigation to establish a direct factual connection between the performance of a bilateral endoscopic thoracic sympathectomy and renal failure if that connection or relationship had previously been unknown or that connection had not previously been made. A failure to advise or to warn of the risk of that complication would not sound in damages because it would not correspond to a breach of the relevant duty. It seems to me in the present case that the plaintiff has unfortunately and to a great extent unnecessarily sought in effect to back-fill her current complaints into a medical relationship with the operation without regard in all cases for what were the known risks and side effects of the procedure. The plaintiff has in that sense wandered into a search for endocrinilogical and cardiac explanations of her condition, among others, when she does not need to do so and when a reasonable temporal connection between the operation and the manifestation of its known risks or side effects is all that is required.

57. The reports that I have excluded fall in varying degrees into these categories. Their rejection does not affect the viability of the plaintiff’s claims upon the basis of the reports that remain.

Separate trial: liability v damages

58. The plaintiff has requested that the issues of liability and damages be tried separately.

59. In my opinion it is not appropriate in this case to separate these issues. The events that give rise to the proceedings are now over eight years old. The proceedings were commenced in 2010. The plaintiff’s damages case must by now be ready to proceed. There is no suggestion that her condition is not settled. It is time that all issues were heard and disposed of efficiently. The Court has allocated significant time to do so and it should be utilised.

Conclusions and orders

60. I am not satisfied that any of the experts to whom I have referred are either relevantly qualified to express opinions on relevant matters or have provided reports that are admissible. I am therefore not satisfied that there is any need to arrange a video link to receive their evidence. If any of the other experts retained by the plaintiff are required to give evidence by video link, I will expect the plaintiff to make the arrangements for that to occur at some convenient time during the hearing. I note that Dr Reilly and Dr Banks may well fall into that category. There may be others also.

61. I confirm that the hearing is scheduled to commence on 16 March 2015. I should indicate that I may refer the parties to mediation in the course of the hearing if the matters that emerge appear to me to warrant taking such a course. In that respect the parties should give some immediate consideration to the appointment of a suitable mediator, in default of which I will do so myself.

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Decision last updated: 10 March 2015