Old v Miniter

[2020] NSWDC 401

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Old v Miniter [2020] NSWDC 401

Hearing dates:

28, 29, 30, 31 October; 25, 28 November 2019; 6 February, 3 April, 7 July 2020

Date of orders:

31 July 2020

Decision date:

31 July 2020

Jurisdiction:

Civil

Before:

Judge Levy SC

Decision:

1. Verdict and judgment for the defendant;

2. I will hear the parties on the appropriate order for costs;

3. The exhibits may be returned;

4. Liberty to apply on 7 days’ notice if further or other orders are required.

Catchwords:

TORTS – negligence – medical treatment – orthopaedic surgery – intra-operative decision not to remove indwelling elements of redundant ankle fixation hardware due to presence of osteomyelitis infection – failure to arrange for removal at a later time after treatment for osteomyelitis – finding of breach of duty of care – plaintiff developed further osteomyelitis infection 7 years later – failure of plaintiff to establish a causal connection between that subsequent osteomyelitis and the earlier breach of duty of care owed; PRACTICE & PROCEDURE – lex loci delicti – application of the civil liability law of the ACT – Civil Liability Wrongs Act 2002 (ACT)

Legislation Cited:

Australian Consumer Law, s 60

Civil Law (Wrongs) Act 2002 (ACT), s 42, s 43, s 44, s 45, s 46

Civil Liability Act 2002 (NSW), Pt 1A, s 5B, s 5O, s 15, s 16,

Civil Procedure Act 2005 (NSW), s 98

Evidence Act 1995 (NSW), s 56

Evidence Act 2011 (ACT), s 56

Limitation Act 1969 (NSW), s 50C

Limitation Act 1985 (ACT), 16B

UCPR r 31.27(1)(c) and Sch 7 cl 3(e)

Cases Cited:

Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem (2009) 238 CLR 420; [2009] HCA 48

Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538; [1940] HCA 45

Amaca Pty Ltd v Ellis [2010] HCA 5

Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1

Browne v Dunn (1893) 6 R 67

Caltex Refineries (Qld) Pty Limited v Stavar (2009) 75 NSWLR 649; [2009] NSWCA 258

Chappel v Hart [1998] HCA 55; 195 CLR 232

Commissioner of Police v Rea [2008] NSWCA 199

Elayoubi v Zipser [2008] NSWCA 335

Glen v Sullivan [2015] NSWCA 191

Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187

Griffiths v Kerkemeyer [1977] HCA 45

Indigo Mist Pty Limited v Palmer [2012] NSWCA 239

John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36

Leotta v Public Transport Commission of NSW (1976) 50 ALJR 666

Luxton v Vines (1952) 85 CLR 352; [1952] HCA 19

Naxakis v Western General Hospital (1999) 197 CLR 162; [1999] HCA 22

Perisher Blue Pty Ltd v Nair-Smith (2015) NSWLR 1; [2015] NSWCA 90

Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110

Purkess v Crittenden (1965) 114 CLR 164; [1965] HCA 34

Roads and Traffic Authority (NSW) v Dederer (2007) 234 CLR 330; [2007] HCA 42

Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; [2007] HCA 42

Rogers v Whitaker (1992) 175 CLR 479; [1992] HCA 58

Rosenberg v Percival (2001) 205 CLR 434; [2001] HCA 18

Seltsam Pty Ltd v Guinness [2000] NSWCA 29; (2000) 49 NSWLR 262

Shaw v Thomas [2010] NSWCA 169

Strong v Woolworths Ltd (2012) 246 CLR 182; [2012] HCA 5

Tabet v Gett (2010) 240 CLR 537; [2010] HCA 12

The Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64; [1991] HCA 54

Uniting Church in Australia Property Trust (NSW) v Miller; Miller v Lithgow City Council [2015] NSWCA 320

Vaccaro v MLC Limited [2016] NSWDC 85

Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 442

Wallace v Kam (2013) 250 CLR 375; [2013] HCA 19

Water Board v Moustakas (1988) 180 CLR 491; [1988] HCA 12

Watts v Rake (1960) 108 CLR 158; [1960] HCA 58

Waverley Council v Ferreira [2005] NSWCA 418

Whisprun v Dixon [2003] HCA 48; 200 ALR 447

Wyong Shire Council v Shirt (1980) 146 CLR 40; [1980] HCA 12

Texts Cited:

Dorland Illustrated Medical Dictionary, 29th Ed, 2000, WB Saunders & Co

Stedman’s Medical Dictionary, 26th Ed, 1995, Williams and Wilkinson

Category:

Principal judgment

Parties:

Brian Old (Plaintiff)
Associate Professor Miniter (Defendant)

Representation:

Counsel:
Mr A Campbell with Ms K Kumar (Plaintiff)
Ms A Horvath (Defendant)

Solicitors:
Gerard Malouf & Partners (Plaintiff)
Makinson d’Apice Lawyers (Defendant)

File Number(s):

2018/273550

Publication restriction:

None

Judgment

Table of Contents

Nature of case	[1]
Factual background	[2] – [36]
Focal point of claim by the plaintiff	[37]
Pivotal determinative questions	[38] – [41]
Particularisation on behalf of the plaintiff	[42] – [48]
Applicable law	[49] – [53]
Procedural default by the parties	[54] – [57]
Issues	[58]
Evidence overview	[59] – [65]
References in oral evidence to relevant dates of treatment	[66]
Ankle stabilisation apparatus	[67] – [70]
Credibility and reliability of testimony	[71] – [77]
Consultation dates not in dispute	[78] – [80]
Review of factual evidence on liability and causation issues	[81] – [168]
Survey of clinical records of surgical treatment	[83] – [84]
Survey of plaintiff’s evidence	[85] – [124]
Survey of Dr Miniter’s evidence	[125] – [168]
Survey of expert evidence	[169] – [260]
Professor Robin Higgs – First report, 3 December 2018	[170] – [172]
Professor Michael Guinness – Report, undated	[173] – [177]
Professor Martin Sullivan – Report, 16 May 2019	[178]
Professor Phillip Braslins – Report, 29 April 2019	[179]
Joint report by Professor Higgs and Professor Sullivan	[180] – [187]
Oral evidence of Professor Higgs and Professor Sullivan	[188] – [222]
Joint report by Professor Guinness and Professor Braslins	[223] – [227]
Oral evidence of Professor Guinness and Professor Braslins	[228] – [260]
Issue 1 – Findings on relevant matters of fact	[261] – [317]
Issue 2 – The pleaded limitation defence	[318] – [322]
Issue 3 – The relevant risk of harm	[323] – [331]
Issue 4 – The duty of care owed and its scope and content	[332] – [349]
Issue 5 – Preferred expert evidence on breach of duty of care	[350] – [365]
Issue 6 – Alleged negligence	[366] – [427]
Particulars of negligence as pleaded	[368] – [370]
Defendant’s complaint concerning plaintiff’s alternative case	[371] – [386]
Legislation	[387] – [389]
General consideration of the claim of negligence	[390] – [392]
Consideration of s 43(1) of the CLWA	[393] – [414]
Consideration of s 43(2) of the CLWA	[415] – [422]
Consideration of s 44 of the CLWA	[423] – [426]
Conclusion on breach of duty of care	[427]
Issue 7 – Consideration of expert evidence on causation	[428] – [447]
Issue 8 – Causation of harm	[448] – [498]
Legislation	[450] – [451]
Background considerations to causation analysis	[452] – [462]
Requirement of precise identification of the harm incurred	[463] – [473]
Factual causation – s 45(1)(a) of CLWA	[474] – [496]
Scope of liability – s 45(1)(b) of CLWA	[497]
Conclusion on causation	[498]
Issue 9 – Alleged contributory negligence	[499] – [507]
Issue 10 – Assessment of damages	[508] – [542]
Non-economic loss	[509] – [521]
Past economic loss	[522] – [526]
Future economic loss	[527] – [531]
Past domestic assistance	[532] – [536]
Future domestic assistance	[537] – [539]
Future treatment expenses	[540] – [541]
Past out-of-pocket expenses	[542]
Disposition	[543]
Costs	[544]
Orders	[545]

Nature of case

1. In these proceedings, the plaintiff, Mr Brian Old, claims he received negligent medical treatment from the defendant, Dr Paul Miniter, a specialist orthopaedic surgeon, in connection with the surgical management of an orthopaedic injury sustained on 1 May 2010.

Factual background

2. On 1 May 2010, the plaintiff, a resident of New South Wales who was then aged 44 years, fell whilst riding his motorcycle near his home in Jindabyne. Consequently, he sustained a severe right ankle injury. This was ultimately identified as consisting of a displaced fracture of the right fibula and a high ankle sprain involving tearing of the associated medial ligament of that ankle, with disruption and diastasis of the right inferior tibio-fibular syndesmosis, an anatomical structure that comprised the stabilising ligaments of that ankle.

3. On the day of the accident, the plaintiff attended at a local hospital where the seriousness of that injury was not initially appreciated. On 6 May 2010, the plaintiff saw his general practitioner who referred him to see Dr Miniter in Canberra for assessment and treatment of that injury.

4. On 7 May 2010, Dr Miniter saw the plaintiff as his private patient. He arranged for the plaintiff to be admitted to hospital. On 10 May 2010, the plaintiff’s injury was treated surgically in the Australian Capital Territory [“ACT”], by means of an open reduction and internal fixation of the fractured fibula. This was achieved by the insertion of a plate and screws. A syndesmosis tightrope stabilising system was also applied by Dr Miniter to reconstruct and hold the ankle joint together under tension.

5. The syndesmosis reconstruction component of that surgery involved a process of laterally drilling two tunnel tracks through the fibula and tibia and associated soft tissues in the right ankle. Two coated and braided high molecular polymer fibre tightropes were then threaded and passed through the ankle via each of those holes. Those tightropes were then anchored, secured and knotted, to maintain them under tension by the use of four anchoring metal discs, called EndoButtons, placed surgically at the medial and the lateral sides of the right ankle, on the tibia and fibula, beneath the skin.

6. The tightrope system used to treat the plaintiff was designed to keep the tibia and fibula in a position that would assist in creating an advantageous environment for the syndesmosis ligaments to heal.

7. A significant feature of relevance to this case concerning that system was that the polymer tightropes used to stabilise the plaintiff’s ankle provided what has been described in the expert evidence as a very good or suitable environment for the transmission of infection along the pathway provided by the tunnels that had been drilled through bone, and through which the tightropes had been threaded.

8. Since the plaintiff’s operation, an aspect of that system has been redesigned to eliminate the potential for the knots on the sides of the ankle to remain prominent under the skin at the anchor points. Those design changes, which eliminated the need for knots, which could become potential skin irritants, have no practical bearing on this case other than to explain why, on 30 June 2010, Dr Miniter elected to cut those knots on the lateral side, on that account.

9. Dr Miniter carried out all of his surgical procedures on the plaintiff at the National Capital Private Hospital in Canberra, in the ACT. There is no dispute that the initial surgery was appropriate for the injury and that it was properly performed. The plaintiff did not particularise or raise any claim or complaint about the initial surgery carried out by Dr Miniter on 10 May 2010 or in relation to a subsequent surgery he carried out on 30 June 2010. Those operations will be described in further detail in due course.

10. In May and June 2010, the plaintiff unfortunately developed a post-operative infection which led to a diagnosis of osteomyelitis. This was treated with antibiotics and by surgery on 30 June and 4 August 2010. Antibiotic treatment ceased on 3 November 2010, when the treating infectious diseases physician considered that the plaintiff’s osteomyelitis had been cured: Exhibit “1”, Vol 2, p 551.

11. In Mid-2017, almost seven years later, the plaintiff went on to develop osteomyelitis in his right ankle. He claims that condition ought to have been avoidable if reasonable care had been exercised in the treatment he received from Dr Miniter in the months that followed his initial surgery. That claim is in substantial dispute.

12. Specifically, the plaintiff claims he did not receive reasonable care on 4 August 2010, when Dr Miniter decided to remove only selected components of redundant indwelling fixation devices, following which, he claims he was not informed that remnant components continued to remain in situ.

13. The plaintiff claims that the alleged negligent nature of his treatment on 4 August 2010 only became apparent to and discoverable by him in early August 2017, after he was surgically treated for emergent osteomyelitis. This was shortly after an operation carried out by Dr Miniter on 25 July 2017, when the plaintiff was told that redundant elements of ankle fixation hardware had been removed from his right ankle at that operation.

14. That information perplexed the plaintiff. This was because, beforehand, he had understood, incorrectly as it transpired, that Dr Miniter had removed all redundant hardware components from his right ankle at the operation on 4 August 2010. That misunderstanding may have occurred because an infectious diseases physician who was treating the plaintiff appears to have understandably, but incorrectly, either misapprehended or misinterpreted the terms of Dr Miniter’s typed operation note, which was expressed ambiguously, in surgical shorthand. The plaintiff claims that he did not learn that the medial indwelling redundant hardware in his right ankle had previously been left in situ until shortly after the operation carried out by Dr Miniter on 25 July 2017.

15. It is common ground between the parties that redundant indwelling hardware, if not removed, may become a potential nidus for infection that could become difficult to treat, and which could lead to osteomyelitis. Despite the plaintiff having received appropriate post-operative antibiotic treatment in 2010, he went on to develop a recalcitrant osteomyelitis infection which emerged in 2017. The development of that complication was at the time recognised to be a known risk associated with the operative treatment that he had earlier received.

16. The expert evidence discloses that an infection of that kind could occur post-operatively, including much later in time, and if it did, this was not necessarily as a result of negligent treatment. Other known potential causes of such infection included wound contamination by various means, including a failure of aseptic technique or practice in the operating theatre, post-operative blood borne infection, lack of appropriate post-operative rest and limb elevation, and possibly, premature post-operative weight bearing on the affected part causing tissue swelling, delayed healing, and possible wound breakdown.

17. Between June 2010 and August 2010, the plaintiff’s post-operative infection was aggressively treated with antibiotic therapy. This included a series of hospital admissions, on 11 June 2010, 30 June 2010, and 4 August 2010. The two latter dates involved surgical management.

18. On 30 June 2010, Dr Miniter wrote-up the plaintiff’s medical records to the effect that, on that day he had cut the securing knots on the laterally attached tightropes and removed two adjacent tightrope anchors from the lateral side of the plaintiff’s right ankle. He said he did so because the knots and anchors on that side were thought to be the cause of skin irritation. Dr Miniter said he limited the procedure to the removal of only those items and not the fixation plate and screws at that time because intra-operatively, he saw evidence of incomplete fracture healing at that time.

19. This meant that the indwelling fixation plate and screws, which at that time were known to have become infected, and the medial anchoring EndoButtons, which he considered to have not been infected, were thereafter and for the time being, left in place along with some degree of residual tightrope material that appears to have remained attached to the residual redundant medial EndoButtons.

20. Dr Miniter’s 30 June 2010 operation was criticised by an orthopaedic expert retained by the plaintiff as having incompletely addressed the need for removal of all redundant hardware. However, insofar as that expert’s criticism related to the procedure carried out by Dr Miniter on 30 June 2010, that particular criticism was outside the scope of the plaintiff’s particularised case. Furthermore, as will become apparent from the course of analysis, that particular criticism has no causative significance.

21. On 4 August 2010, at an operation carried out on that date, Dr Miniter removed all of the hardware that was located on the lateral side of the plaintiff’s right ankle. This related only to the plate and screws. However, in his typed operation note, he wrote up the plaintiff’s medical records to include the following statement about the removal operation he had performed:

“…

TECHNIQUE

Lateral approach right ankle

Removal of all remaining hardware laterally.

Closure after swabs taken and plate and screws sent for MCS

closure skin only

dressing

…”

[Exhibit “1”, Vol 1, pp 363 – 407.23]

22. Dr Miniter’s 4 August 2010 operation note did not record any observations about the appearance of the medial side of the plaintiff’s right ankle, and it did not include any descriptive reference to the residual elements of hardware that he had left in situ on that date. A subsequent x-ray of the plaintiff’s right ankle taken on 5 August 2010 showed two residual medical EndoButtons remaining in situ on the medial side of the plaintiff’s right ankle, but at the time, that finding was not made known to the plaintiff.

23. There was an element of ambiguity within Dr Miniter’s 4 August 2010 operation note, which he dismissed as semantics: T125.22. However, Dr Sanajaya Senanayake, a hospital infectious diseases physician who had taken over management of the plaintiff’s antibiotic treatment, had apparently and understandably misinterpreted the operation note to mean that all of the indwelling hardware had been removed via a lateral surgical approach, whereas only the elements comprising the fixation plate and screws had been removed in that approach, but not the two residual redundant medial EndoButtons. That misapprehension was apparent in Dr Senanayake’s subsequent correspondence to Dr Miniter. Dr Senanayake was not called to give evidence. It was therefore unclear as to whether or not he had ever seen the x-ray taken on 5 August 2010, or a report of that x-ray, which might have redressed his apparent misunderstanding.

24. Dr Miniter explained that at the operation on 4 August 2010, he had made the intra-operative decision that the residual redundant hardware elements remaining on the medial side of the plaintiff’s right ankle should be left in situ as that area did not appear to be infected on his external examination of it, and also because he did not want to create a cross-infection of an uninfected area, which could be the result if he opened the skin on the medial side.

25. Neither the tendered clinical records nor Dr Miniter’s evidence indicate whether he had made any follow-up arrangement to see the plaintiff again. During the ensuing three months, until 3 November 2010, Dr Senanayake wrote to Dr Miniter on at least three occasions to keep him informed of the progress of treatment of the plaintiff’s infection. That correspondence was plainly founded upon Dr Senanayake’s belief, apparently based on the content of Dr Miniter’s operation note dated 4 August 2010, and his interpretation of that note to the effect that all indwelling hardware had been removed, when that was not so.

26. The plaintiff did not see Dr Miniter again until almost seven years later, on 25 July 2017, at which time he presented for urgent assessment and treatment on referral from his general practitioner, due to an osteomyelitis infection of the right ankle.

27. The plaintiff’s liability criticisms of Dr Miniter are in this case necessarily restricted to a focus on the adequacy of Dr Miniter’s actions relating to the surgery on 4 August 2010, and thereafter.

28. In the subsequent post-operative period, between August 2010 and 3 November 2010, the care and treatment of the plaintiff’s post-operative infection was variously managed by Dr Miniter and the plaintiff’s treating general practitioner, in conjunction with hospital infectious diseases specialists.

22. On 18 August 2010, in a letter to Dr Miniter, the hospital infectious diseases specialist, Dr Senanayake, who at the time managed the plaintiff’s post-operative antibiotic treatment, indicated to Dr Miniter that he had understood (incorrectly as it transpired), that all of the plaintiff’s ankle hardware had been removed on 4 August 2010: Exhibit ‘1”, Vol 2, pp 548 – 549. It appears that Dr Senanayake had not seen either the film or a report of the 5 August 2010 post-operative x-ray which would have revealed the presence of the remaining two medial EndoButtons. Those events, as described, are not intended to be taken to be a criticism of Dr Senanayake as the circumstances and physical location of his consultations with the plaintiff are unknown, particularly as to whether he would have had access to that x-ray or a report on that x-ray.

23. The evidence tendered in these proceedings did not disclose whether or not Dr Miniter had taken any steps, either verbally or in writing, to rectify that incorrect understanding on the part of Dr Senanayake. For whatever reason, Dr Miniter’s private practice notes were not tendered in evidence in the proceedings so that question was not illuminated in the evidence.

24. When the plaintiff’s antibiotic treatment ceased on 3 November 2010, his infection was thought by Dr Senanayake to have been cured. However, the possibility of a future relapse of that infection remained as a possible risk. This was made clear to Dr Miniter by Dr Senanayake, in his 3 November 2010 letter to Dr Miniter: Exhibit ‘1”, Vol 2, p 551.

25. On 3 November 2010, when Dr Senanayake wrote his letter to Dr Miniter about the plaintiff’s treatment to that point, it appears from his letter that he was not aware that redundant surgical hardware had been intentionally left in situ on the medial side of the plaintiff’s right ankle. That is a matter which has some bearing on the identification of relevant risk of harm in this case.

26. Unfortunately for the plaintiff, in mid-2017, the known and ever-present risk of emergence or recrudescence of infection in his right ankle appears to have materialised, almost seven years after he had been discharged from previous antibiotic treatment and related medical care. In mid-2017, the plaintiff saw Dr Miniter again for treatment of that newly emergent problem. On 25 July 2017, at an exploratory operation, Dr Miniter found that the plaintiff had developed a fulminating and purulent osteomyelitis infection in his right ankle. On that occasion, the remnant medial hardware was removed by Dr Miniter.

27. In his oral evidence, in cross-examination, Dr Miniter referred to a CT scan report dated 19 July 2017 concerning imaging of the plaintiff’s right ankle: T136.25 – T137.48. The conclusion of that CT scan report was as follows:

“Fibular periosteal reaction, together with widening of the more inferior tibiofibular drill tract are features suspicious of osteomyelitis”

[Exhibit “1”, Vol 2, pp 565 – 566]

35. In his oral evidence on that matter, Dr Miniter stated that the plaintiff’s final presentation was “… let’s face it … [it] was basically what I would regard as poor management is (sic) [of his] osteomyelitis”: T137.42. In a context where the hospital clinical records relating to the plaintiff were tendered, and where these records had apparently been available to Dr Miniter’s solicitors for some considerable time, it is significant to observe that no expert who was called to give evidence in this case gave any evidence to support that criticism as stated by Dr Miniter in his oral evidence.

36. To decide the issues in these proceedings, it is necessary to identify some determinative matters of fact in more detail after surveying the array of factual material. Those facts will be identified in a sequentially structured way when setting out my reasons regarding what will in due course be described as Issue 1 commencing at paragraph [261] below. This can only be achieved after a meticulous review of the evidence of all the factual and expert witnesses, and a similar review of all relevant documents that touch upon those facts. The extent and length of these reasons is necessarily commensurate with that approach.

Focal point of claim by the plaintiff

37. In essence, the plaintiff claims that his osteomyelitis was caused, or materially contributed to, by the alleged negligent failure of Dr Miniter to remove what had become redundant residual indwelling fixation components at the operation performed by him on 4 August 2010, when at that time, those components no longer continued to serve any therapeutic purpose. Dr Miniter disputes the plaintiff’s claims and denies that he had been negligent in any way.

Pivotal determinative questions

38. On a broad overview of the evidence and arguments in support of the case as particularised by the plaintiff, and having regard to the evidence and arguments against that case, I consider that the outcome of these proceedings stands to be determined by the answer to two pivotal questions.

39. The first question is whether or not Dr Miniter’s decision not to remove residual redundant hardware components at an operation on 4 August 2010 was consistent with the provision of reasonable medical care by him at that time.

40. The second question is whether the plaintiff is able to satisfactorily prove the causation question of whether or not the osteomyelitis that was found at his last operation on 25 July 2017, could have been guarded against, if not avoided, if the residual redundant elements of hardware had been removed earlier, on 4 August 2010, in the exercise of reasonable and due skill and care.

41. That said, there is a more extensive and complex range of underpinning issues that call for determination in this case. Those issues are identified at paragraph [58] below after identifying some procedural matters arising out of the particulars and the applicable law by which the proceedings are governed.

Particularisation on behalf of the plaintiff

42. The particulars of negligence that the solicitor for the plaintiff has pleaded in this case were narrowly confined to an alleged failure on the part of Dr Miniter, on 4 August 2010, or thereafter, to remove all infected hardware including sutures and EndoButtons, and an alleged related failure to adequately describe the surgery performed on that date so as to record the fact that residual sutures and anchor buttons had been left to remain in situ.

43. Those particulars necessarily constrained the approach taken by counsel appearing for the plaintiff. It transpired that he was briefed by the plaintiff’s solicitor only three days before the trial date in this complex case.

44. On the third day of the trial, counsel for the defendant objected to an expansive expert commentary that was thought to have emerged on a particular point concerning the descriptive adequacy of operative findings recorded in Dr Miniter’s operation notes. The concern was that counsel for the plaintiff was attempting to anchor alleged operative failures on Dr Miniter’s part to an earlier and hitherto unparticularised date, namely 30 June 2010: T165.24 – T171.18.

45. Whilst it was noted, at T167.36, that the origin of that problem was not the fault of counsel for the plaintiff, the state of the particularisation of the plaintiff’s case, both in the pleadings and in the answers to requested particulars, was nevertheless disquieting: T169.26.

46. In those circumstances, counsel for the plaintiff was afforded a short adjournment to take an opportunity to consider the position so instructions could be obtained on the preferred course to be taken, following which, no application was made to amend the particulars: T169.46 – T171.17. The case therefore proceeded as was originally pleaded.

47. On the fourth day of the trial, uncontested evidence was given by both infectious diseases experts to the effect that the four infective organisms grown from ankle swabs taken at the plaintiff’s final operation on 25 July 2017, were probably introduced at the same time, that is, at the operation on 10 May 2010. This was thought by those experts to be due to a breakdown of aseptic technique at that operation, which the experts said could occur for multi-factorial reasons, not necessarily the fault of the surgeon. That evidence was given in the context of a hindsight analysis that was permissible in a causation analysis: Vairy v Wyong Shire Council (2005) 223 CLR 442; [2005] HCA 62, at [124].

48. That evidence poses but one of a number of potential causation difficulties that the plaintiff must overcome in order to succeed in this case. The plaintiff did not seek to make a case against the hospital at which the 10 May 2010 operation took place.

Applicable law

49. During the course of the hearing it became apparent that, in formulating their respective positions in the litigation, the legal advisors for both the plaintiff and Dr Miniter had incorrectly structured their expert evidence in the mistaken belief that the provisions of the Civil Liability Act 2002 (NSW) (“CL Act”) governed the proceedings, when as a matter of law, that was plainly not so.

50. After that error was drawn to the attention of the parties (T173.50 – T174.1), they acknowledged that they were required to restructure their approach to the issues in dispute. This was because the proceedings are governed by the lex loci delicti, which in this case, is the substantive law comprising the Civil Law (Wrongs) Act 2002 (ACT) [“CLWA”]; John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36, at [100]. Given the stage the evidence had reached at that point, a practical course was taken in the further running of the case in that neither party sought to introduce fresh or amended expert reports to refocus on the newly confined issues.

51. At this point it is relevant to observe that the CLWA contains some materially different provisions when compared to the provisions within Pt 1A of the CL Act (NSW). Foremost amongst those differences, first, is that the CLWA has no equivalent provision of a sheltering defence to professional negligence proceedings as may be afforded by s 5O of the CL Act (NSW) where that latter Act might apply, and secondly, damages for non-economic loss must be assessed on common law principles rather than on the basis of a sliding table of percentage impairment in comparison to a most extreme case, as provided by s 16 of the CL Act (NSW).

52. Therefore, because of the first of those differences concerning the determination of the liability issues, aspects of the expert evidence that formerly influenced the approach taken by the legal representatives of both parties on the issue of what might have constituted competent peer professional practice in Australia, within the meaning of s 5O of the CL Act, were no longer of determinative relevance to the proceedings, contrary to what had been initially assumed by the legal representatives of the parties.

53. The parties then proceeded to reformulate their respective approaches and arguments in accordance with the identified practical course. The cost consequences of those circumstances are a matter to be considered by a Costs Assessor in due course.

Procedural default by the parties

54. On 4 June 2019, a pre-trial interlocutory order was made by the Judicial Registrar requiring that the parties participate in an informal settlement conference, or a mediation, to be held by 30 September 2019.

55. Astonishingly, for a case of this kind, not only was there a failure of compliance with that order, but the parties failed to bring the fact of such non-compliance to the attention of either the List Judge or the Judicial Registrar in accordance with the Court’s Standard Orders and prevailing practice, so that appropriate remedial orders could have been considered.

56. After that default was critically examined in the course of the hearing, the parties took up the suggestion that an intra-trial mediation should take place, following which, the proceedings remained unresolved.

57. No adverse inferences arise from the fact that mediation did not result in a resolution of the proceedings. Affidavit evidence was required to explain the circumstances in which that procedural default occurred. The costs consequences of those circumstances were reserved to be revisited after the substantive issues have been determined, if that course became necessary.

Issues

58. The pivotal issues have already been identified at paragraphs [38] to [41] above. Apart from the related matters of credibility and reliability of testimony, on my consideration of the pleadings, the evidence, the submissions of the parties, the substantive issues that underpin and which will determine those pivotal issues, are identified as follows:

1. Findings on relevant factual matters are required as such findings will be influential on the assessment of the expert evidence. My findings on those matters appear in paragraphs [261] to [317] of these reasons;

2. The determination of the limitation question of whether the plaintiff is entitled to maintain these proceedings in light of the defendant’s filed defence to the effect that, in answer to the whole of the plaintiff’s statement of claim, the claimed cause of action is statute barred pursuant to s 50C of the Limitation Act 1969 (NSW). My findings on this issue appear in paragraphs [318] to [322] of these reasons;

3. Identification of the relevant risk of harm within the meaning of s 43 of the CLWA. My findings on this issue appear in paragraphs [323] to [331] of these reasons;

4. The scope and content of the duty of care owed by the defendant. My findings on this issue appear in paragraphs [332] to [349] of these reasons;

5. Resolution of critical aspects of difference in the array of expert orthopaedic opinions on the question of whether or not the defendant has breached the duty of care he owed to the plaintiff. My findings on this issue appear in paragraphs [350] to [365] of these reasons;

6. Whether, according to the analysis required by s 43 and s 44 of the CLWA, the defendant should be found to have relevantly breached the duty of care that he owed to the plaintiff. My findings on this issue appear in paragraphs [366] to [427] of these reasons;

7. Identification of the key conclusions to be drawn from within the array of the expert opinions of the infectious diseases physicians on the question of whether any established breach of the duty of care owed by the defendant was a relevant cause of the harm claimed to have been suffered by the plaintiff. My findings on this issue appear in paragraphs [428] to [447] of these reasons;

8. Whether, in terms of s 45 of the CLWA, any established breach of the duty of care owed by the defendant was the relevant cause of the plaintiff’s claimed harm. My findings on this issue appear in paragraphs [448] to [498] of these reasons;

9. Whether, as claimed by the defendant, any damages awardable to the plaintiff should be reduced on account of his own alleged contributory negligence. My findings on this issue appear in paragraphs [499] to [507] of these reasons;

10. The assessment of the plaintiff's damages in respect of non-economic loss; past economic loss; future loss of earning capacity; future treatment expenses; and past out-of-pocket expenses. My findings on those matters appear in paragraphs [508] to [542] of these reasons.

Evidence overview

59. The plaintiff was the only witness called to give oral evidence on factual matters in his case. Dr Miniter was the only witness called to give oral evidence of a factual nature in the case for the defendant.

60. The parties relied upon the opinions of medical experts from within the specialist medical disciplines of orthopaedic surgery and infectious diseases.

61. Prior to the hearing, those separate sets of experts met their respective counterparts and joint reports were then prepared concerning the results of those meetings. In those joint reports the experts set out the matters upon which they agreed, and they also set out their reasons for disagreement on the matters on which they remained in disagreement. At the hearing, the opinions of those two sets of experts were explored in the course of their oral evidence, in which experts of like qualification gave their evidence at the same time. That evidence has assisted the task of determining disputed medical issues.

62. The respective orthopaedic experts were Professor Robin Higgs, qualified by the plaintiff, and Professor Martin Sullivan, qualified by the defendant. The respective infectious diseases experts were Professor Michael Guinness, qualified by the plaintiff, and Professor Phillip Braslins, qualified by the defendant. The evidence of those experts will be examined and evaluated in detail in the course of these reasons.

63. The plaintiff also relied upon documentary evidence, including the voluminous clinical records that were created following the series of his hospital admissions. Aspects of the detail of those records will be referred to where it becomes relevant to do so.

64. In this case, unlike cases where the law of NSW must be applied, where the sheltering provision of s 5O of the CL Act (NSW) may provide an available defence to a claim of professional negligence, the opinions of experts based on what constituted accepted peer professional practice in Australia, whilst relevant to the provision of some general guidance to assist the task of making appropriate findings, are not statutorily determinative of the issues concerning the content and scope of the duty of care owed, and whether or not there was a relevant breach of that duty.

65. The acceptability of expert opinions in this case must be dependent upon the facts and the logical reasoning upon which those opinions are based. Such expert opinions provide guidance to the process of making findings, and they are not necessarily determinative of the question of whether or not reasonable care had been provided by Dr Miniter in the circumstances: s 42 of the CLWA.

References in oral evidence to relevant dates of treatment

66. The transcript of the questioning of the witnesses on factual matters reveals many instances that involved imprecise date references, which variously omitted the day of the month or the year of occurrence in which a relevant event was being discussed. That level of imprecision and the concomitant minimalist attention to detail has added an unhelpful and needless burden to the required analysis. At places of important reference in the citation of evidence on factual matters, I have endeavoured to interpolate complete date references so that the dates on which various events occurred can be more clearly followed.

Ankle stabilisation apparatus

67. A short video demonstration was played in opening addresses showing an animated sequence of the method of deployment of a similar but not identical tightrope device to the two such devices that were used to treat the plaintiff on 10 May 2010: MFI “1”: T6.15 – T7.35.

68. Absent a useful demonstrative diagram being tendered in evidence it is appropriate to set out some further descriptive detail of the syndesmotic stabilisation system used.

69. The syndesmosis fixation hardware equipment used in the plaintiff’s treatment was variously described in the evidence as including metal discs, anchors, or EndoButtons, connected by fibrous braided polymer tightrope sutures, at times mis-described as wires, and also variously referred to in the evidence as cable, thread, and rope.

70. Two sutures or tightropes were separately inserted through two tunnels or tracts drilled through the bones of the plaintiff’s right ankle to allow passage of those sutures. Two anchor discs or EndoButtons were then located on bone, on each of the lateral and medial sides of the right ankle, to secure and tension those sutures on either side of the ankle to hold the ankle ligaments in place whilst healing took place.

Credibility and reliability of testimony

71. I consider that all the witnesses who gave evidence on historical matters of fact did so to the best of their respective recollections. No direct credit challenges were made to either the evidence of the plaintiff, Dr Miniter, or to their respective expert witnesses.

71. In final submissions made on behalf of Dr Miniter, it was suggested that some cited comments made by Professor Higgs in his oral evidence cast some doubt upon his independence: Defendant’s written submissions, par 52. In my view, that submission was overstated as to its basis, and I considered that it was unfounded, particularly as that criticism was not specifically put to him for comment: Browne v Dunn (1893) 6 R 67. I consider that the reasons advanced for that submission should not be accepted because the matters upon which that submission was dependant were peripheral, and Professor Higgs’ process of reasoning for his opinions was adequately exposed for analysis, and such views were reasonably open on the evidence.

72. In his oral evidence, the plaintiff fairly acknowledged that he could not precisely recall every detail of his multiple hospital admissions. He deferred to the content of the clinical records regarding such matters: T46.21 – T46.27. Similarly, he acknowledged that he could not recall, with accuracy, the details of what had been said to him in clinical consultations that had taken place with Dr Miniter at hospital, almost nine years before the hearing: T47.2 – T47.13. In that regard, he also mis-recalled the date of his accident as being 7 May 2010, instead of it being 1 May 2010.

73. Dr Miniter said he had a reasonable recollection of his treatment of the plaintiff but he also relied upon the content of his clinical records. He had referred to those records on the morning he gave his evidence. It is reasonable to assume that process served to refresh his memory on some of the detailed content of his evidence. Those records were not tendered in evidence. Understandably, he could not recall the verbatim content of the key discussions he had with the infectious diseases team about the plaintiff’s care, in the period between 2010 and 2017 and in the subsequent period leading up to the hearing in 2019.

74. The material elements of difference that emerged within the respective testimonies of the expert witnesses must be assessed according to the underlying facts and the reasoning that underpinned their respective opinions: UCPR r 31.27(1)(c) and Sch 7 cl 3(e). That determination must proceed by evaluative reasons for conclusions arrived at on the balance of probabilities.

75. The parties declined to approach the analysis of the expert evidence on the basis that the respective joint reports of the two sets of experts, which followed their conclave meetings, represented the essential opinions requiring analysis.

76. Instead, those reports were required to be read in conjunction with the earlier reports of the respective experts. That approach has necessarily led to a lengthier analysis of the detail of the expert evidence, and a similar analysis of the underlying factual evidence than otherwise might have been required before reaching a distillation of the material facts for the purpose of deciding the issues that call for decision. Those material facts are identified in the consideration of Issue 1, which commences at paragraph [261] below.

Consultation dates not in dispute

78. In light of the plaintiff’s acknowledgment that he has an imprecise recall of some events, for convenient reference, at this point it is appropriate to identify the undisputed dates of clinical contact between the plaintiff and Dr Miniter in 2010, that is, before the plaintiff was discharged from his care in that year.

79. Dr Miniter acknowledged that in 2010 the plaintiff was his patient on a total of seven occasions, on 7 May 2010, 10 May 2010, 20 May 2010, 12 June 2010, 17 June 2010, 30 June 2010 and 4 August 2010: Defence, paragraph 4(a). In 2017, Dr Miniter had one consultation with the plaintiff, namely on 25 July 2017, when he operated on the plaintiff for the last time: Defence, paragraphs 4(e) and 5(c)(iii).

80. The factual chronology that emerged from within the plaintiff’s evidence-in-chief concerning his treatment by Dr Miniter was understandably led from him without objection given that it was substantially based on the chronology prepared on his behalf: Exhibit “A”. In these reasons, for accuracy, I propose to refer to the relevant dates and events that are anchored in the contemporaneous historical clinical records.

Review of factual evidence on liability and causation issues

81. Before referring to the factual evidence as was given by the respective parties, and before referring to the evidence of the respective experts concerning the liability and causation issues that arise for determination in this case, it is necessary to review the framework of that evidence in the form of the relevant clinical records, as supplemented by the content of the oral evidence of both the plaintiff and Dr Miniter.

82. That framework, and the subsequent review of the expert evidence commences from paragraph [83] below. It continues until the commencement of my reasons for decision that starts with the consideration of Issue 1 at paragraph [261] below. The extensive detail of that evidence required marshalling for consideration in a logical factual sequence before the distillation of relevant findings of fact could be achieved.

Survey of clinical records of surgical treatment

83. The paragraphs that follow set out in chronological sequence the clinical events that became evident from a reading of the tendered clinical records, but also annotated in some places with additional matters of relevance that were explored in the oral evidence of both the plaintiff and Dr Miniter:

Pre-operative consultation with Dr Miniter – 7 May 2010

1. On 7 May 2010, Dr Miniter reviewed the plaintiff at his clinic in Canberra and advised him he needed surgery. At that time Dr Miniter explained to the plaintiff the significance of his injury, the risks and benefits of the surgical treatment he proposed, and he satisfied himself the plaintiff had a full understanding of those matters: Exhibit “1”, Vol 2, p 540;

First hospital admission – first operation by Dr Miniter – 10 May 2010

2. On 10 May 2010, Dr Miniter’s initial operation record shows that he treated the plaintiff for a displaced fracture of the right lateral malleolus, a complete disruption of the syndesmosis, with a loose detached osseous body in the ankle joint arising from a recent disruption of the distal talo-navicular eminence. Those findings also noted there was CT evidence of a fracture of the anterior calcaneal process. The operative technique was identified as a lateral approach to the right ankle, reduction and fixation with plate and screws, these comprising two AO screws and 3 locking screws, stabilisation with tightrope anchors and re-establishment of the medial space. An arthroscopy was performed which showed a 6mm diameter loose osseous fragment freshly detached from the anterior tibial plafond (ceiling). The surgical wound was closed in layers, with prolene to the skin, and dressings and plasters were applied. Post-operative orders were for hourly observations of the right foot, gentle elevation, non-weight bearing, and for discharge home the following day with the anticoagulant clexane: Exhibit “1”, Vol 1, p 262;

3. On 20 May 2010, Dr Miniter wrote to the plaintiff’s treating general practitioner advising of the operative findings on 10 May 2010, and the surgical technique he applied at the time. At that time, he also foreshadowed seeing the plaintiff again soon: Exhibit “1”, Vol 1, pp 237 – 238; Exhibit “1”, Vol 2, pp 541 – 542;

Second hospital admission – treatment of infection – 11 to 13 June 2010

4. Between 11 and 13 June 2010, the plaintiff was an in-patient at the National Capital Private Hospital under the care of Dr Miniter. He was there for treatment of his infected surgical wound to his right ankle, five weeks post-operatively, for daily dressing changes. On admission the plaintiff was mobilising on crutches and using a protective blackboot. The discharge instructions were for him to wear the blackboot at all times, to rest and elevate his right foot, and to present to Dr Miniter for follow-up on the following Thursday, 17 June 2010: Exhibit “1”, Vol 1, pp 284 – 304;

5. On 12 June 2010, the hospital clinical progress notes contain an entry to the effect that Dr Miniter saw the plaintiff and approved the plaintiff being discharged home on the following day: Exhibit “1”, Vol 1, p 295;

6. On 17 June 2010, in a letter to the plaintiff’s general practitioner, Dr Miniter observed that the small pressure area that had been evident on the interior and lateral portion of the plaintiff’s right foot, which was described as resolving well, was described as probably related to the swelling which occurred whilst the plaintiff was immobilising with the plaster on his right lower limb: Exhibit “1”, Vol 1, p 239;

7. Significantly, in his 17 June 2010 letter to the plaintiff’s general practitioner, Dr Miniter did not suggest that the plaintiff had been weight bearing on that foot, either inappropriately, or contrary to advice: Exhibit “1”, Vol 1, p 239; Exhibit “1”, Vol 2, p 543;

Third hospital admission – second operation by Dr Miniter – 30 June 2010

8. On 30 June 2010, in Dr Miniter’s operation record, reconstructing for spelling errors, he identified the operative technique used on this occasion as a re-opening of the plaintiff’s previous surgical wound. The operation note recorded a finding of sepsis or infection, which was queried as to whether it was deep. On visual inspection it was noted that there was no appearance of deep fluid or obvious involvement of infection around the hardware plate. In the subsequent expert evidence, the perceived technical difference between a severe infection and a deep infection took on some apparent significance. However, having regard to Dr Miniter’s evidence of having told the plaintiff that the infection should be assumed to have been deep (T102.30), the apparent difference in descriptions seems to have no significance. At that operation, both lateral tightrope knots were cut and the related lateral EndoButton anchors were removed. Tissue swabs and specimens were sent for pathology examination. The detail of how those swabs were taken and how the sampling occurred, was not described. The surgical wound was then lavaged, the skin was then closed after removal of all remnant sutures from the previous dressing. IV antibiotics were ordered to be commenced, hourly observations of the right foot were ordered, and a PICC line was scheduled to be inserted the following morning: Exhibit “1”, Vol 1, p 240;

9. It appears from the evidence (Exhibit “E”), that following the operation on 30 June 2010, Dr Miniter did not write to the plaintiff’s referring general practitioner to outline what had been done surgically in that operation;

10. Between 30 June and 7 July 2010, the plaintiff remained as an in-patient at the National Capital Private Hospital under the care of Dr Miniter and Dr Peter Collignon, an infectious diseases specialist, for treatment comprising open drainage of his right ankle wound on 30 June 2010 in view of the sepsis found in the right ankle at the operation on 30 June 2010. The plaintiff remained in hospital for observations, dressing changes and antibiotic therapy. In that time, on 2 July 2010, Dr Collignon was unclear if the infection involved bone and hardware or just soft tissues. He considered that a Pseudomonas organism was growing. On 4 July 2010 Pseudomonas and Staphylococcus Aureus growths were isolated and the antibiotic therapy then changed. On 7 July 2010, the plaintiff was discharged on crutches into the care of his general practitioner with a PICC line in place and instructions for antibiotic therapy and dressing changes every second day or earlier if needed. An infectious diseases consultation was scheduled for one month later: Exhibit “1”, Vol 1, pp 305 – 361;

11. On 2 July 2010, the hospital clinical progress notes record that at 11.30am on that day, Dr Miniter saw the plaintiff in hospital and indicated his approval for the plaintiff to go home with a community nurse, and the treating infectious diseases physician approved of that course: Exhibit “1”, Vol 1, p 335;

12. On 5 July 2010, the hospital clinical progress notes record that the plaintiff was seen in hospital by Dr Miniter, who ordered continuation of antibiotics and dressing changes: Exhibit “1”, Vol 1, p 314;

Fourth hospital admission – third operation by Dr Miniter – 4 August 2010

13. Between 4 August and 13 August 2010, the plaintiff was an in-patient for surgical treatment at the National Capital Private Hospital for removal of the indwelling AO plate and screws and wound debridement: Exhibit “1”, Vol 1, pp 363 – 407.23. In Dr Miniter’s operation record for 4 August 2010 he identified the operative technique on this occasion as being a lateral approach to the right ankle to remove all remaining hardware laterally on the right ankle. The operative findings were a united fracture of the right ankle, without intra-operative evidence of deep sepsis. Wound healing was noted to have been much improved since recommencement of the planned antibiotic treatment. Deep swabs were taken, and the removed screws were sent for MCS. The swabbing locations and the swabbing technique were not described in detail. At the conclusion of the procedure, only the skin of that wound was closed, dressings were applied, and post-operative orders were given for the plaintiff to be discharged home for bed rest, analgesia and antibiotic therapy. The discharge assessment stated “Staph infection R ankle” and “weeping”: Exhibit “1”, Vol 1, pp 370 – 371;

14. On 4 August 2010, the hospital clinical progress notes record that Dr Miniter saw the plaintiff in hospital and indicated he should remain in hospital but that he could be discharged after a review that was to take place on the following Saturday: Exhibit “1”, Vol 1, p 407.3;

15. On 5 August 2010, the hospital clinical progress notes record that Dr Miniter saw the plaintiff in hospital at about 14:55 hours and reviewed an x-ray, following which he ordered continued bed rest for that day and the next day: Exhibit “1”, Vol 1, p 373 and p 407.3. The hospital notes do not contain any commentary or interpretation from Dr Miniter in relation to what was seen on that x-ray, which, indisputably, must have revealed the presence of the two retained medial EndoButtons;

16. On 7 August 2010, the hospital clinical progress notes record that at about 13:00 hours, the plaintiff was seen in hospital by Dr Miniter, who ordered daily wound dressings, along with a plan for discharge on the following Tuesday, with antibiotics to continue;

17. On 10 August 2010, at about 06:00 hours, the hospital clinical progress notes record that Dr Miniter ordered that the plaintiff be given Jellonet / Kaltostat to be applied to his wound despite the plaintiff stating he had a skin reaction to one of those products: Exhibit “1”, Vol 1, p 376 and p 405;

18. On 11 August 2010, at about 10.05 hours, the hospital clinical progress notes record that Dr Miniter saw the plaintiff in hospital and ordered intravenous antibiotic treatment with daily dressing changes, with Kaltostat, gauze and bandaging (but without Jellonet): Exhibit “1”, Vol 1, p 405;

19. The hospital records tendered do not make any reference to any follow-up arrangement made for the plaintiff to see Dr Miniter again. In the meantime, another of the hospital’s infectious diseases physician, Dr Senanayake, took over the management of the plaintiff’s antibiotic treatment. That treatment proceeded upon the apparently incorrect understanding that all redundant hardware had been removed from the plaintiff’s right ankle when that was not the case: Exhibit “1”, Vol 2, p 548. No correspondence was tendered to show that Dr Miniter had made any follow-up arrangements with the plaintiff’s treating general practitioner for the removal of the residual redundant hardware that had been left in situ on 4 August 2010;

20. There is no evidence from within the materials tendered to show that Dr Miniter sent a copy of his 4 August 2010 operation note to either the plaintiff or the plaintiff’s treating general practitioner. Similarly, there is no evidence to show that he wrote to the plaintiff’s general practitioner drawing attention to the fact that he had left the two residual elements of redundant hardware in situ on the medial side of the plaintiff’s right ankle;

Unrelated ENT consultation – 23 November 2011

21. On 23 November 2011, the plaintiff had an otolaryngeal consultation with Dr Marlene Soma, who recorded that he had a longstanding deviated nasal septum from sporting injuries some years earlier. She noted his nasal turbinates were mildly congested: Exhibit “1”, Vol 2, p 552. Nothing of significance turned on that evidence;

Fifth hospital admission – unrelated surgery – 11 April 2014

22. On 11 April 2014, the plaintiff underwent a right shoulder arthroscopy and rotator cuff repair and biceps tendinosis procedure at an unstated hospital in Southern NSW: Exhibit “1”, Vol 2, p 555. That surgery involved implanted hardware, as was observed in the expert evidence;

Sixth hospital admission – unrelated surgery – 26 May 2014

23. On 26 May 2014, the plaintiff underwent an arthroscopy procedure on his right knee at Cooma Hospital for treatment of a locked knee syndrome: Exhibit “1”, Vol 2, pp 799 – 845;

Seventh hospital admission – unrelated surgery – 18 February 2016

24. Between 18 and 20 February 2016 the plaintiff was an in-patient at The National Capital Private Hospital for the unrelated procedure of right orchidectomy and left vasectomy, this being treatment of a testicular tumour: Exhibit “1”, Vol 1, pp 407.24 – 407.71; Exhibit “1”, Vol 1, pp 407.57 – 407.58. That tumour appears to have had no lasting consequences in terms of the issues raised in this case. The discharge summary for that hospitalisation noted that post-operative steri-strips were to be left in situ until they naturally fell off and a note was made to monitor for infection pending follow-up with the operating surgeon in 4 weeks’ time: Exhibit “1”, Vol 1, p 407.26. Whilst the note on discharge referred to “dressing intact with old ooze”, no concerns about the existence of an infection were noted at that time: Exhibit “1”, Vol 1, p 407.39;

Eighth hospital admission – fourth operation by Dr Miniter – 25 July 2017

25. Between 25 July and 1 August 2017, the plaintiff was an in-patient at The National Capital Private Hospital, having been transferred there from Calvary Hospital by Dr Miniter: Exhibit “1”, Vol 1, pp 407.73 – 407.154. On 25 July 2017, in Dr Miniter’s operation record, he identified the operative procedure on that occasion as being debridement/removal of fixation/excision of sinus. The operative technique was identified as an excision of a sinus tract on the lateral aspect of the right ankle. Suture material in the base of the tract was also stated to have been removed after the excision of the EndoButton on the medial aspect of the tibia, after it was located under image intensification. The sinus tract, which is described elsewhere as traversing a distance, presumably some centimetres, through bones and soft tissues, was stated to have been cleaned, swabs and suture material was sent to pathology, wash-out then occurred, and the wound was closed “easy” with prolene. The surgical findings were stated as being osteomyelitis, plus retained foreign material in the right ankle, and EndoButton tightrope fixation. Post-operative orders were for the plaintiff to continue with IV antibiotics, to rest, to await swab results, and for the PICC line to continue in place: Exhibit “1”, Vol 1, p 242; p 407.132;

26. Following the operation performed on 25 July 2017, on 4 August 2017, Dr Miniter faxed a copy of his 25 July 2017 operation note to the plaintiff’s treating general practitioner, under cover of a fax cover sheet, without further explanation: Exhibit “1”, Vol 2, pp 587 – 588. That note was in the following terms:

“FINDINGS

osteomyelitis plus retained foreign material right ankle

Disposition

543. I find that the defendant was in breach of the duty of care that he owed to the plaintiff but the plaintiff has not established that such breach was the relevant cause of the claimed harm. The plaintiff has therefore failed to establish an entitlement to a damages award. There should be a verdict and judgment for the defendant.

Costs

544. The combination of pleadings deficiencies and non-compliance with case management orders by both parties suggests that a special order for costs is indicated in this case: s 98 of the Civil Procedure Act 2005 (NSW). I will therefore hear the parties on the question of the appropriate order for costs.

Orders

545. I make the following orders:

1. Verdict and judgment for the defendant;

2. I will hear the parties on the appropriate order for costs;

3. The exhibits may be returned;

4. Liberty to apply on 7 days notice if further or other orders are required.

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Amendments

31 July 2020 - Paragraph 58(8) enumeration error within paragraph

Decision last updated: 31 July 2020