Ozkan v St Vincent's Hospital (Melbourne) Limited (t/a St Vincent's Health)
[2014] VCC 2263
•21 November 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
MEDICAL DIVISION
Case No. CI-07-03475
| HURIYE OZKAN | Plaintiff |
| v | |
| ST VINCENT’S HOSPITAL (MELBOURNE) LIMITED (trading as ST VINCENT’S HEALTH) | Defendant |
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JUDGE: | HIS HONOUR JUDGE JORDAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28, 29, 30 and 31 October 2014 and 3, 5, 6, 7 and | |
DATE OF JUDGMENT: | 21 November 2014 | |
CASE MAY BE CITED AS: | Ozkan v St Vincent’s Hospital (Melbourne) Limited (t/a St Vincent’s Health) | |
| MEDIUM NEUTRAL CITATION: [First Revision 30 January 2015] | [2014] VCC 2263 | |
REASONS FOR JUDGMENT
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Subject:MEDICAL NEGLIGENCE
Catchwords: Failure to warn of risks of psychiatric injury from surgical procedure
Legislation Cited: Wrongs Act 1958, s48, s50
Cases Cited:Rogers v Whitaker (1992) 175 CLR 479; Odisho v Bonazzi [2014] VSCA 11
Judgment: Claim dismissed. Judgment for the defendant.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | The plaintiff appeared in person | |
| For the Defendant | Mr P Halley | Minter Ellison |
HIS HONOUR:
1 The plaintiff came to Australia from Turkey in 1988. The plaintiff was experiencing breathing difficulties over a number of years. A doctor suggested a septoplasty and that a rhinoplasty to remove a lump or hump from her nose could be done at the same time. She agreed to the procedures by way of two signed Consent Forms. The surgery took place at St Vincent’s Hospital (‘St V’) on 7 February 2005 after some three years on the waiting list.
2 The plaintiff claims damages for breach of contract and medical negligence. In essence, both claims allege she was not advised of the risks of developing psychiatric injuries as a result of the procedures. In other words, she gave no informed consent. She also claims, in effect, language difficulties required explanations and advice should have been given through an interpreter. After the surgery and viewing herself in the mirror, she has gone on to develop a Body Dysmorphic Disorder and a Major Depressive Disorder. The plaintiff repeated several times in evidence she had no history of psychiatric or mental health problems before the 2005 surgery.
3 The plaintiff’s evidence is she had attended a number of general practitioners for her breathing difficulties. Sprays and antibiotics were prescribed. The last general practitioner then referred her to a specialist, Mr Basham, an ENT surgeon. She saw him in private practice. He was not called, nor was any report from him tendered.
4 The plaintiff attended Mr Basham and he said the bone in her nose needed to be fixed. It was causing the breathing difficulty and would require an operation. He also asked if she would like to have the lump or hump on her nose fixed at the same time, and she agreed. She then went onto the waiting list at St V. It emerged in evidence she had also attended the ENT section at the Royal Melbourne Hospital (‘RMH’) in 2001. She had also been placed on the waiting list there for nose operations.
5 The plaintiff saw a surgeon, Mr Gary Sherman, at St V on 31 January 2002. She said she then went with her ex-husband. He interpreted for her as she said her English was poor then.
6 It needs to be said at the outset that over nine days of hearing, her English in Court was extremely good. She had no difficulty understanding questions, articulating answers, cross-examining witnesses or indeed reading the voluminous documents she brought to Court, as well as finding further documents which I allowed her to refer to and keep tendering, even on the last day of the trial.
7 The plaintiff said she was with Mr Sherman for 10 to 15 minutes on 31 January 2002 and she was a bit worried, as a previous tonsil operation had caused bleeding. He assured her it was not a hard operation and there was nothing to worry about. His notes and diagrams of that date were tendered.[1] She signed the first of two St V Consent Forms on the day.[2] She said she “did not have any clue about the nature of the operation”.[3]
[1]Exhibit 8
[2]Exhibit G
[3]Transcript (“T”) T9
8 I do not accept this evidence. She had clearly seen a number of people in private practice and at hospitals about possible nose surgery. For reasons I will develop later, I found the plaintiff an unreliable and evasive witness. On the probabilities the referral from a general practitioner to Mr Basham and then seeing Mr Sherman would have led to some knowledge of the proposed surgery. She had also seen RMH ENT staff and obviously agreed to also go on their waiting list. I will say more about RMH later. To say she “did not have a clue” is highly improbable.
9 The plaintiff agreed that she then contacted St V in about July 2004 and asked for a review appointment.[4] She saw Mr Sherman a second time. That was on 9 September 2004. She recalled a number of matters discussed with him about the proposed procedure. She did not request an interpreter and did not have her husband with her. This is inconsistent with any concerns about language and comprehension, especially in view of her seeking this appointment after signing the first St V Consent Form on 31 January 2002.[5] 9 September 2004 was a pivotal day on which she signed the final paperwork, a second Consent Form, for the two operations to proceed.[6] Mr Sherman’s notes recorded the surgery was in fact to be expedited and she had “realistic expectations” about the surgery.[7]
[4]Exhibit 1
[5]Exhibit G
[6]Exhibit 7
[7]Exhibit 8
10 The plaintiff then was notified by letter of the operation date of 7 February 2005 and given instructions to follow pre-surgery. She said she was still unsure and requested an interpreter to be present. On 7 February 2005, she said her ex-husband took her to St V. A St V employee attended to some paperwork. She said she requested an interpreter and was told the interpreter was with someone else. I do not accept that she asked for an interpreter. After her ex-husband parked the car, she said he was not allowed to come in and see her. I do not accept this evidence. It is improbable a spouse or ex-spouse would be denied accompanying a patient who was waiting to go to surgery.
11 The plaintiff was then taken to theatre where a Mr Semple performed the rhinoplasty and Mr Sherman the septoplasty. She recalled meningitis being mentioned by Mr Semple in conversation before surgery but not much else. A day or two after surgery, when she looked at herself in the mirror, she was in shock. Then, some ten days later, when plaster was removed from her face, she said:
“… that was an even bigger shock for me because the first thing I saw was, like, someone else. It didn’t look like myself.”[8]
[8]T13
12 Then:
“I looked at the mirror and I couldn’t believe my eyes and I thought, you know, I’m looking at someone else because it was changed altogether, it was altered altogether, the shape of my nose.”[9]
[9]T13
13 From there the evidence is she has suffered from body dysmorphia that has been accompanied by a Depressive Disorder. Her case is essentially, that she was not warned of the risks of these psychiatric disorders by St V before agreeing to the surgery and these were material risks.
14 Toward the end of the first day, the plaintiff indicated she wished to add a number of physical injuries to the two psychiatric conditions pleaded. She mentioned asymmetry, difficulty breathing and itchiness. I considered this overnight but ruled against any amendment in view of the numerous lengthy directions hearings when it was repeatedly made clear to her that the issues needed to be settled and the injuries pleaded were psychiatric only. I explained the unfairness to the hospital in preparing to meet her pleaded claim for the alleged material risks of psychiatric injuries and her wanting to change it at this stage to something else. On the second morning, I explained the position again to the plaintiff and her adult daughter. I gave her the opportunity to discuss the matter with her daughter, who I also addressed, and stood the case down.[10] The case then proceeded as pleaded.
[10]T56–74
15 The plaintiff was taken in cross-examination, question by question, through the topics Mr Sherman and Mr Semple would be saying in evidence were discussed on 9 September 2004 and on 7 February 2005 respectively.[11] Her memory of the conversations in my opinion was selective and inconsistent. For example, she agreed Mr Semple told her she was going to have the bones corrected.[12] She never told the doctor she did not understand him.[13] She never told him she needed an interpreter.[14] When it was put to her that he was a doctor who came to talk about the operation, she said she did not even know he was a doctor.[15] I do not accept that evidence. Later, she said “maybe” he introduced himself as a doctor.[16] She conceded some things the doctor said to her, but would not really agree to anything about what the operation involved.[17] Her recall of this conversation indicated positive answers to some suggestions, but not to those that could largely be said to involve what the procedure involved about risks.
[11]T146
[12]T146–147
[13]T147
[14]T148
[15]T148, 152
[16]T150
[17]T151
16 The whole body of evidence about her also being on another hospital waiting list (RMH) was curious. The reasons the plaintiff gave for not going ahead with the nasal surgery at RMH were not satisfactory. It was not clear why she was even on the waiting list there. She signed the Consent Form at RMH on 18 May 2004.[18] She then attended for a pre-admission screening and then pulled out of the proposed operations of septoplasty and turbinectomy. The reasons given for this were inconsistent. She said at one stage it was because of Mr Basham telling her back in 2001 that St V in effect was the better place to go, with better doctors there. An intention to go overseas was relayed by her to the RMH staff for her not proceeding with the surgery. No overseas trip ever took place. When I asked her why, she gave some reason about her husband not helping with her with tickets.[19] A statement from him was tendered and it said nothing about an overseas trip or the tickets.[20] In fact it said nothing at all about his wife ever going to RMH. Her evidence was vague, inconsistent and unsatisfactory on topics about which there would be expectedly straightforward answers, such as an overseas trip. Why she would ever get on the RMH waiting list, if it was true what Mr Basham had said about St V, is really just left unexplained. She volunteered that opinion of Mr Basham’s about the medical superiority of St V in the face of difficulties she encountered explaining why she suddenly cancelled out of the RMH nasal surgery.
[18]Exhibit 2
[19]T219–220
[20]Exhibit L
17 The plaintiff gave evidence over four days. Inconsistencies continued to emerge in her testimony that led to grave reservations about her reliability. She often had recourse to a poor memory of conversations at times when questioning on relevant topics caused some potential problem to her case and her state of knowledge about the proposed surgery. While language difficulties were pleaded in her Statement of Claim, as the trial proceeded, she moved increasingly to a position of relying on difficulties with the English language.
18 It became a growing part of her case that a lack of English-language skills was her response to a number of questions relating to her understanding of the surgery and to conversations with doctors. It became more and more of an allegation as the trial proceeded and she even asked for an interpreter at Court. I will say more about this later. She was quite inconsistent in this regard. Part of her case of there being no informed consent was that she said she requested an interpreter on 7 February 2005, the day of the surgery. Her request, she said, was not granted. She had never requested an interpreter at St V before that day. Added to her problem on the day was the evidence about her husband being prevented from joining her while waiting pre-surgery. Other people in the waiting room awaiting surgery had partners with them as she waited for treatment, but Mr Ozkan for some reason was refused in his attempts to join her. On all the evidence, I am not persuaded he was ever prevented from joining her.
19 The need for an interpreter was curiously inconsistent. While her language skills are probably better now than they were in 2004 and 2005, I do not accept this articulate woman of obvious intelligence did not understand what medical people told her back in those years. In fact evidence leads to the conclusion that even back as early as 2000, she had no difficulties with English in a medical setting.[21]
[21]Exhibit 3
20 The plaintiff did not seek an interpreter when she saw Mr Basham in 2001 and he referred her off for nose surgery. She did not seek an interpreter when she first saw Mr Sherman at St V in January 2002.
21 The plaintiff signed her first Consent Form at St V when she saw Mr Sherman on 31 January 2002.[22] While risks were not specifically referred to, it contained the following statement:
“The nature and effect of the operation(s)/procedure(s) have been explained to me by Dr Sherman.”
[22]Exhibit G
22 Several further consents are recorded in the document and then the plaintiff’s signature appears. Dr Sherman then signed below his acknowledgement of explaining the nature and effect of the operations. The probabilities are that what was involved in the operations was fully explained to her. It was the second major public hospital ENT section she had been to.
23 The plaintiff then had photographs of her nose and face taken at St V on 31 January 2002.[23] The probabilities are that the plaintiff well understood these were being taken to record how she looked in view of risks discussed that included altered appearance after rhinoplasty. The plaintiff would not concede she wanted a “smaller nose” as Mr Sherman had recorded on 31 January 2002. If the tissue was a hump or bump that was to be removed, as she agreed to, it must inevitably involve reduction in the size of the nose. Her denial that she wanted the nose to be smaller is hard to reconcile with her agreement to have part of the nose removed.
[23]Exhibit 12
24 At the review appointment she herself asked for in September 2004, which on the probabilities was to expedite the surgery, she did not seek an interpreter. She did not attend with her husband on that date when she signed her second St V Consent Form.[24]
[24]Exhibit 7
25 She had earlier signed a Consent Form for two nasal procedures at RMH on 18 May 2004. She did so without an interpreter.[25] Risks were set out in that document which she signed as understanding. She went into a pre-admission screening procedure on that day at RMH without an interpreter. She then cancelled out of the surgery, with the reason given that she was going overseas after the operation, which had been scheduled for only six days later, on 24 May 2004. The plaintiff was reluctant in the witness box to concede the overseas trip was the reason given and said it was because she was also concerned about the procedures. She then suggested she cancelled because of what Mr Basham had said in 2001 about St V being in effect better than RMH. Her evidence was very unsatisfactory on the topic. I questioned her about why she changed her mind about going ahead at RMH on 24 May 2004 but her answers were not clear. They varied as to the reasons. I cannot make any positive finding as to what the real reasons were, as her evidence was very unreliable.
[25]Exhibit 2
26 Within two months of cancelling at RMH, she telephoned St V in July 2004 and requested an appointment. She had remained on the St V waiting list while the RMH attendances had taken place. She was then given the appointment on 9 September 2004. She attended without her husband or an interpreter, and a second discussion about the operations took place with Mr Sherman and she signed the second St V Consent Form.[26]
[26]Exhibit 2
27 When pressed about her saying she wanted an interpreter on the day of the operation, her evidence changed. From an account she gave on day one of the trial that she was told it was not a “hard” operation and there was nothing to worry about, she said it was now a “major operation”, a “big” operation and a “hard operation”.[27] Hence she needed an interpreter. I reject her evidence that she needed assistance with language in order to understand what she was consenting to or discussing with doctors. She had seen a number by this stage. I reject her evidence about requesting an interpreter on the day of the surgery and her husband being refused access to her. Her evidence on these matters and in regard to language difficulties in my view was evasive, selective and inconsistent. It was designed to overcome her obvious written consents to nasal operations at both St V and RMH following a number of conversations at both places that involved risks implicit in nasal operations. These consents had also followed medical consultations in private practice with general practitioners and the specialist, Mr Basham.
[27]T128, 133
28 At other times, she said her mind was “all over the place”. She was “confused” she stated on other occasions when questions went awkwardly to issues about her state of knowledge and understanding. I do not accept she was confused. Her presentation in Court and questioning were quite to the contrary.
29 Before her surgery, she said she heard that a family friend’s son had died following a nose operation. Yet the plaintiff did not question any surgeon or hospital staff about such a risk. Her evidence seemed to amount to her being largely silent on the topic of risks and her not asking very much, if anything, of any doctor. Her case was really that this was due, at least in part, to not understanding what was being said to her. She certainly understood from the family friend that their son had died.[28] The plaintiff said she did not even really enquire as to the details about this friend’s son, such as the hospital involved.[29] She did not know where it took place. When pressed as to why this topic of the death was not pursued with Mr Sherman in September 2004, basically she said she did not have a chance to organise an interpreter and her husband was very busy.[30] It is improbable she would not have raised the question of such a possible dire risk. I do not accept her explanations of why she did not raise the topic of the death. Her husband’s statement is silent on this topic of the death of the family friend’s son.
[28]T47
[29]T48
[30]T49
30 It emerged that her husband only worked part-time. She suggested her “son was sick or something” and that was why her husband did not come with her on 9 September 2004 when she signed the final Consent Form.[31] Again, the husband’s statement says nothing about such a reason why he was not there. She still did not tell Mr Sherman she needed an interpreter, even though she had the knowledge then of someone actually dying after such surgery. Her answer then was:
“I’ve never asked for an interpreter in my life before.”[32]
[31]T49
[32]T50
31 On the second day of the hearing, her evidence changed when, in cross-examination, the question of language difficulties was canvassed. She told the Court she had gone to medical consultations in earlier years at the Royal Women’s Hospital (‘RWH’) with an interpreter. She was very hesitant at times in the witness box when confronted with potentially difficult questions. This was an example of observable aspects of testimony in the witness box the transcript does not record.
32 Later evidence from a general practitioner of other health referrals to RWH in 2005 does not support any language problems. During her final submission on the last day of the trial, I allowed her to tender some 1988 health records she had found that indicated language difficulty in her very early years in Australia.[33] I will refer to them later.
[33]Exhibit N
33 This case illustrated the real benefits of hearing and observing a witness. Her evidence was unacceptable when she said that she and the surgeon, Mr Sherman, never discussed anything about what rhinoplasty involved. It is also improbable that he never told her he would be touching the sides of the nose or that he would be shaping the sides.[34] I accept she wanted a “smaller nose”. It is improbable there was no discussion about shape.[35]
[34]T50
[35]Exhibit 8
34 When she first saw Mr Sherman at St V on 31 January 2002, she indicated she did not need an interpreter. She repeated this again on 9 September 2004. On discharge on 9 February 2005, the plaintiff also said she told the hospital staff that she did not require an interpreter. This was after her being shocked at the result of this surgery. If she did not fully follow English, the probabilities are she would have sought help from an interpreter with post-operative procedures and what could be done about her altered appearance, which she said shocked her. Her appearance was then a cause of great concern to her.
35 The plaintiff was taken through a whole series of documents from her past general medical records which do not support any language difficulties.[36] These are from different hospitals and practices. For example, RMH documents regarding an attendance as early as 28 April 1998 recorded that an interpreter was not required and she was not with her husband. An RMH Emergency Department attendance on 4 January 2000 noted the relevant language was “English”.
[36]Exhibit 3
36 The plaintiff said she could remember her husband was with her on that date when this was pointed out to her. However, it was recorded on the second page of that Emergency Department record that, again, an interpreter was not required and there was no one accompanying her. The probability is she was on her own and that she did not require an interpreter even as far back as 1998, or certainly 2000, to understand medical people.
37 Some Broadmeadows Health Service records on 24 January 2001 were filled out by the plaintiff in writing she identified as her own. It supports the view that the plaintiff understood English quite well as early as 2001.
38 A Mercy Hospital record of September 2002 of an enquiry about whether an interpreter was required was again ticked as “No”. “English” was also recorded and I infer that is the language communications took place in. Again, the plaintiff’s answer was that her husband was there. I do not accept the answer as reliable. These records from various medical authorities consistently relate no need for an interpreter. The plaintiff repeatedly stated her husband was with her on those occasions but I do not accept from her presentation, hesitation and demeanour that she even remembered each of these visits years ago, let alone if he was there or not.
39 Again, an Emergency Department attendance for other health matters at RMH on 21 January 2005 with “really bad sharp pain” saw the same notation appear of “No” as to whether an interpreter was required. No accompanying person was recorded as being with her.
40 Time after time, at different places, English is recorded as the plaintiff’s language on these documents with no need for an interpreter. These records relate to general health issues of varying types.
41 The plaintiff repeatedly attempted to get over the awkwardness of those records by saying her husband was with her. If he was there on 18 May 2004 at RMH when she signed the Consent Form and she later cancelled because of an overseas trip, it is hard to reconcile this with her evidence he did not then provide the money for the tickets for the suggested overseas trip.
42 I find she did not need her husband or an interpreter when her potential operations were being discussed in 2001, 2002, 2004 and 2005 by her local doctor, Mr Basham, or at the two hospitals.
43 Not only do the series of records pre-surgery record English as the preferred language, but 2005 records after the surgery do likewise.[37] A RMH record of an attendance on 3 August 2005 for other medical problems in the Gastro Unit records English as the “preferred language”. Again, as to an interpreter being required, the answer is in the negative. The plaintiff was taken to an RWH referral for gynaecological reasons, on 4 August 2005, from a general practitioner, Dr Nadira Sidrak. This doctor is Egyptian and did not speak to the plaintiff in Turkish. The same doctor stated “No” to whether an interpreter was required in three referrals in 2005 to the RWH. Similar hospital records on 21 September 2005 continue the stream of notations about English being the relevant language and there being no need for an interpreter.
[37]Exhibit 3
44 A Dr Peter Greenberg, on 28 November 2005, saw the plaintiff at the referral of Dr Tran, a Chinese doctor who speaks to the plaintiff in English. This referral was for thyroid problems. The plaintiff agreed her husband was not with her and in fact Dr Greenberg noted “she separated eight years ago” from her husband. There was a conversation with a Dr Greenberg about her problems. It was in English and a detailed history was recorded. The plaintiff was alone. Dr Greenberg gave her web addresses to access further information. All this is consistent with the plaintiff not having any communication difficulties in 2005 or problems understanding English when on her own.
45 The medical documents she had discovered and tendered on the last day of the trial were extracts which ran from 1988 to 2003.[38] The plaintiff came to Australia from Turkey in 1988. Early documents showed a need for an interpreter in 1988 and up to 1992, which is understandable. There is no reference to language problems after that, although several documents in 1998 record her husband did accompany her to RMH when she had gastric problems.
[38]Exhibit N
46 However, importantly, there is no record of any language problems after 1992 in these further records. I accept her language skills have improved since 1992. Certainly by 2000 onwards, the probabilities are she understood English enough to follow medical advice about all sorts of different health issues.
47 The documents also showed the original referral to the RMH ENT Clinic was in October 2001. In a document describing nasal obstruction in 2000 and in all the documents relating to nasal problems, there is no language difficulty recorded. Also, in some 2000, 2001 and 2003 documents from three different sources, there is also no mention of the plaintiff being accompanied by her husband or anyone else.[39]
[39]Exhibit N
48 The plaintiff’s suggestion of language difficulties took on a new dimension during the trial. On the morning of the third day, the plaintiff, for the first time, indicated she needed an interpreter at Court to properly follow proceedings. She requested one to be provided by the Court. She was vague as to who told her of such a service. Some man at the Court had told her.[40] Clearly, her treating psychiatrist, Dr Veda Chang, who had tried to venture into the arena of language problems on day two, had spoken to the plaintiff about this matter.[41] I will refer to Dr Chang’s evidence later. This was in spite of Dr Chang never using an interpreter at her twelve consultations with the plaintiff.[42] I indicated that there had been no such problem with understanding in Court communicated earlier. The transcript of the five or six occasions she had appeared in the Directions Court before his Honour Judge Saccardo[43] indicated no such language problem or not understanding clearly had ever been mentioned. No request for an interpreter in Court had been made before him.
[40]T171–172
[41]T170–171
[42]Exhibit B
[43]T167–168
49 In any event, I arranged for the County Court Acting Self-Represented Litigants Coordinator to come to the Court and give evidence about the matter.[44] She explained no interpreters paid by the Court could be provided, but assistance with the name of firms could be given. The plaintiff was then given 30 minutes or so to consider her position and then let me know if she wished to get a private interpreter.[45] The trial proceeded without an interpreter.
[44]T172
[45]T177
50 As to language skills, it is worth noting that the plaintiff’s evidence-in-chief comprised some 14 pages of transcript. She did not read over this evidence but spoke to it with some occasional reference to notes. The language used and the uninterrupted presentation, save when she dropped her voice several times, illustrated a clear command of English. Cross-examination of the plaintiff then continued over four days in all and she only occasionally needed anything to be repeated or questions put another way. She even objected to evidence at times that indicated her comprehension of what was being said.[46] Her English skills were very good in my view. There was no need for an interpreter.
[46]T192
51 I rejected her suggestion she was having trouble understanding or needed an interpreter at Court to fairly represent her case.[47] At the end of the evidence, I was trying to explain to her in lay terms that “final speeches” or “summing up” or final “comments” would follow. She then volunteered it was Mr Halley’s “submission”, without me even using the word.[48] Her final address even included references to High Court authorities and again, demonstrated there was no need for any interpreter at Court.
[47]T167
[48]T512-513
52 When the plaintiff came to cross-examine the defendant’s witnesses, her clear ability to understand English and speak it was clearly demonstrated over several days. She asked technical questions of doctors. It reflected poorly on her credit when she had complained on day three about the unfairness in not having an interpreter at Court when on day five her understanding was such that she was able to direct me to page 258 of the transcript and some questions she wanted to refer to. Not only did she direct me to page 258, but from her voluminous medical records embracing over twenty years, she extracted a three-line handwritten note that was barely legible. It was a note back twenty years of 3 November 1994 when her husband was apparently abusive in St V’s Emergency Department and was escorted out by security.[49]
[49]Exhibit D
53 In relation to her current English skills, even a Turkish general practitioner, Dr Sabam in Meadow Heights, described, in a January 2007 referral, that the language spoken at home was Turkish but the plaintiff spoke English well. In January 2011, the same doctor ticked “No” when asked whether an interpreter was required in a referral to the Northern Hospital. Emergency Department attendance at the Northern Hospital in July 2011, apparently after the plaintiff was assaulted, recorded “preferred language English”.
54 Another general practitioner, in December 2011, who the plaintiff saw for bowel and bleeding problems, was Dr Catherine Audish in Roxburgh Park. They conversed in English. That doctor also recorded the plaintiff did not need an interpreter. A faxed referral from another doctor, Dr O Seedat in Epping, of 26 November 2008, also recorded an interpreter was not required. The plaintiff said he was not her normal practitioner and she spoke to him in English. A letter written to the plaintiff from RMH on 17 May 2012 in reference to other health concerns followed consultations there in English in the Familial Cancer Centre. I reject her suggestion she needed any assistance from an interpreter at Court. It was not a genuine complaint. The fact that it was made reflected adversely on her credit.
55 A Dr S Shyam, another general practitioner who is Indian and speaks to the plaintiff in English, referred the plaintiff to the Austin Hospital for another medical concern. This was back in 2001 and “preferred language” recorded by that general practitioner was English. A Vietnamese doctor, Dr Linh Tran in Coolaroo, also recorded no interpreter required. That document is undated.
56 Thus Exhibit 3 comprised a very wide variety over some ten or so years of the plaintiff’s medical records and other documents that invariably indicated a capacity to communicate and understand English. Time and again she used the presence of her husband at appointments years ago at various practices and hospitals to get over the clear medical records that no interpreter was required. Even after their separation and marital problems, she said he would attend with her as effectively her interpreter. I do not accept her evidence about his attending at virtually all or any of the relevant appointments. His statement was not tested by cross-examination and it is deficient on a number of topics, some of which I have alluded to. He does not even mention his wife being down on the RMH ENT waiting list. I give little weight to his statement.
57 The first medical witness she called was Mr P Kornan, psychiatrist. He gave evidence in a medico-legal capacity. He diagnosed a Major Depressive Disorder and a Body Dysmorphic Disorder. His report of 27 February 2012 was tendered.[50] He was then shown a letter from Professor Lorraine Dennerstein dated 19 March 2009. He agreed with the contents of that letter and that these were primary injuries based on the plaintiff’s perception she has a physical injury rather than an actual physical injury. His testimony did not advance the plaintiff’s case on liability.
[50]Exhibit A
58 Dr Veda Chang, psychiatrist, has seen the plaintiff since June 2014 in a treating capacity. There have been twelve consultations now and she reported:
“All communication has been with detailed explanation, without an interpreter.”[51]
[51]Exhibit B, page 7
59 She diagnosed a Major Depressive Disorder and a Body Dysmorphic Disorder as a result of the surgery. Her reports were tendered and describe the diagnoses and impact of these conditions on the plaintiff’s life.[52] She stated treatment should continue into the future for these psychiatric conditions. The letter of Professor Dennerstein was shown to the witness and she agreed with the diagnosis of Body Dysmorphic Disorder and Major Depressive Disorder. Dr Chang thought there may be some minor physical disorder but it is one that is out of proportion in terms of what you would expect. The first criteria of the DSM-V diagnosis was read into evidence and it related to the perception of the disorder in light of a slight physical condition or one not observable to others.[53] The twin psychiatric diagnoses in this case are not really in dispute. Her evidence did not assist on the question of liability.
[52]Exhibit B
[53]T124
60 Dr Chang sought to advance an opinion about the plaintiff’s knowledge of English back in 2005 and even her ability to self-represent at this trial. Objection was taken and I upheld it.[54] It was outside the doctor’s expertise and indeed her knowledge, given she had first seen the plaintiff in June 2014, which was almost nine-and-a-half years after the February 2005 operation. I found her to be more of an advocate for the plaintiff than an expert medical witness in this sense.
[54]T116–117
61 Mr Donald Marshall, plastic and reconstruction surgeon, was called by the plaintiff. He saw the plaintiff in a medico-legal context in March 2009 and reported to her former solicitors. He thought there was asymmetry of the nose following the rhinoplasty but it was within the normal range. He explained the warnings about risks that a plastic surgeon would be expected to give. The plaintiff’s case did not involve a plastic surgeon. He said a good doctor should go through a full explanation of the procedure and relevant risks. He had some history of consultations that was not consistent with the evidence. He said, with respect to the request for an interpreter, that he had also been given a different history from the plaintiff than what was said by her in Court. He was informed there had been a consultation with Mr Basham in a private practice situation in 2001. Then followed two consultations with Mr Sherman at St V in January 2002 and then September 2004 prior to the 7 February 2005 operation attendance.
62 Mr Marshall was taken in cross-examination to the discussion and warnings it was anticipated Mr Sherman and Mr Semple would say they gave to the plaintiff. He thought they were appropriate.[55]
[55]T197–204
63 He thought the resultant asymmetry of the nose was minimal and within the normal range seen after rhinoplasty. It was a reasonable outcome for most patients.[56] The septoplasty resulted in a good outcome with no problems at all.[57] His evidence did not include any opinion that any warnings about psychiatric illness were required in the circumstances.
[56]T196
[57]T199
64 Ms Andrea Dore gave evidence that in 2004 and 2005, she was the waiting-list officer for the ENT waiting lists at St V. She pointed to her handwritten note of 29 July 2004. If the patient asked for an interpreter, one would be booked in. There were in-house and agency interpreters available.[58] She would contact the patient or write a letter then informing her of the operation date. A confirmation telephone call would follow that. It would be standard practice to book an interpreter if the patient required one.[59]
[58]T326
[59]T330
65 Ms Karella De Jongh has been manager of language services at St V since 2008. She produced a log of the Turkish interpreter usage in different St V units on 7 February 2005. Firstly, there was an in-house interpreter, Alev Tanyer, who was twice used for Turkish interpreting on that day at St V. Secondly, an outside Turkish interpreter was also used on that day.[60] Thirdly, there was also another back-up service the hospital used by way of a telephone interpreting service if the other two were not available.[61] The St V ENT Unit used the Turkish in-house interpreter on 27 January 2005 by way of example. No note of such ENT usage was seen in the records for 7 February 2005. Even the actual minutes the interpreter was engaged on a particular day and in what unit were recorded. The services were available if asked for by a patient or by a clinician. The probabilities are the plaintiff did not seek an interpreter.
[60]Exhibit 6
[61]T343–344
66 Mr Michael Wilson, ENT surgeon, was the first medical witness called by St V. He has practised in that field for 37 to 38 years. His evidence was that a warning about body dysmorphia is never given in his field. He had never heard of it in ENT. This was the first case he had encountered. On 13 December 2004, the Australasian College of Surgeons printed the first edition of a document headed ‘Surgery of the Nose concerning Rhinoplasty’.[62] The risks set out on page 4 of that document did not include psychiatric injury. The term “realistic expectations” is referred to in the document. Verbal warnings were the usual practice. A 15 to 20-minute consultation is enough in most cases to spend with the patient by way of informing a patient. If bleeding occurred after an earlier tonsillectomy, there would be no need to conduct any further tests. Mr Wilson said most people would not carry out any extra tests. His evidence in the end amounted to his saying it was standard practice not to give any warning about risks of psychiatric injury.
[62]Exhibit 4
67 Mr Craig Semple, ENT surgeon, was an ENT registrar in accredited training at St V back on 7 February 2005. His senior was Mr Sherman. He described what his usual practice was then in terms of risks. It had never been his practice to warn a patient of the risk of psychiatric injury, and that is still the case. It was a remote risk. In effect he said no surgeons in his field would do so. There was nothing to suggest she had anything other than realistic expectations from the surgery. He did not know of any cases of psychiatric injury following rhinoplasty surgery. The plaintiff did not ask him for an interpreter. He would have used an interpreter if there were any concerns about her not understanding the consent process.
68 On the Consent Form the plaintiff signed on 9 September 2004, he deciphered his note about the risks he discussed with her on 7 February 2005.[63] Mr Semple was taken to St V’s clinical notes and recognised Mr Sherman’s handwriting on 31 January 2002 and the diagrams. Mr Semple had recourse to these notes before the surgery on 7 February 2005. The diagrams showed the proposed septoplasty and rhinoplasty by reference to illustrations of what was involved with various parts of the nose.
[63]Exhibit 7
69 He also recognised Mr Sherman’s writing in the 9 September 2004 notes. In particular, he referred to the note of that date which read “she has ‘realistic expectations’”.[64] Mr Semple knew his teacher’s handwriting and relied on that note. He said the operation would not have taken place if he was not satisfied that the patient had “realistic expectations”. In addition to the notes on the day of the surgery, he gave evidence of what his practice was in terms of explaining surgical procedures. He had a personal discussion with the patient that included risks.
[64]Exhibit 8
70 The second page of the second Consent Form was not signed by the plaintiff but Mr Semple said he wrote the note about re‑discussion of the risks in his own handwriting on the front sheet.[65] This was in accordance with what he had understood from the Geelong Hospital procedure. He did not consider the risk of psychiatric injury was a real risk that required any warning about it on 7 February 2005. He is still of that view after a number of years of specialist practice. He did not know of any ENT surgeon who would give such a warning. If he felt someone had a psychiatric problem pre-operation, then he would have taken other steps to satisfy himself that the patient had “realistic expectations”. There was nothing in the notes of Mr Sherman or in Mr Semple’s discussion with the plaintiff to indicate any psychiatric history pre-operation.
[65]Exhibit 7
71 Mr Semple had a clear recollection of this patient. A significant amount of bruising led him to be called in at 3.30am after the surgery due to concern that swelling might be masking some bleeding behind the eye. There was no difficulty with conversing in English when he put her through a number of movements to check on her eyes. Fortunately there was no problem with her vision.
72 He stated it was his practice when discussing pre-operative risks and the procedure to always ask if the patient had any questions or did not understand anything. He would have done so with the plaintiff on 7 February 2005. He repeated that if he encountered any language difficulties or a hospital sticker was on the file about an interpreter being needed, he would have used one.
73 I found Mr Semple a reliable witness. When he was called in at 3.30am on the night of the surgery, it was because of a potential medical problem relating to bleeding. That visit and discussion had no relevance to making sure legal obligations about informed consent were satisfied. He came in due to clinical concerns. The probabilities are if any language problems really did exist, he would have sought assistance from one of the three interpreting avenues the hospital had in place given the concern about eyesight being affected.
74 I accept Mr Semple’s evidence. In particular, I find his account of the conversations and circumstances on 7 February 2005 more probable than the plaintiff’s version. I reject her evidence about him really telling her “nothing”, that she “had no clue” and “the doctor didn’t explain me nothing at all” about the rhinoplasty or septoplasty.[66]
[66]T11, 18, 19
75 Mr Kevin Kane, ENT surgeon, had practised as a specialist since 1972 and ceased active surgery in 2010. He had seen the clinical notes. He considered the “reasonable expectations” noted by Mr Sherman on 9 September 2004 implied the relevant risks had been discussed. Also the notes of the risks Mr Semple recorded on the Consent Form on 7 February 2005 were considered.[67] The warnings given of the appropriate risks of septorhinoplasty were appropriate. He thought there was no need and it was not proper procedure to warn a patient of any risks of psychiatric injury unless there was a history of psychiatric problems given to the clinician, or during the consultation something was obvious to indicate psychiatric illness. The risk of psychiatric injury from septorhinoplasty was miniscule or negligible, Mr Kane said. He viewed before and after photographs of the plaintiff and the result of the surgery was satisfactory and within normal limits.[68] He had never even heard of body dysmorphia resulting from septorhinoplasty prior to the plaintiff’s claim.
[67]Exhibit 7
[68]Exhibits E, F, 10, 11 and 12
76 Dr Gary Sherman, ENT surgeon, has practised as a specialist since 1978. He saw the plaintiff on 31 January 2002 and 9 September 2004. He described the risks he explained to her. They did not include any risks of psychiatric injury. He has never warned a patient of those risks with respect to a septorhinoplasty. He did not know of any ENT surgeon who did. It is a remote risk. He was assisting in theatre with Mr Semple as the surgical team. The operation was uneventful. He saw her post-operatively on 14 April 2005 and 30 June 2005.
77 He was taken to Exhibit 8 and the drawings there of both operations and his notes of 31 January 2002. He also recognised his writing on 9 September 2004, as well as on the two St V Consent Forms.[69] He saw photographs after the surgery and he thought the result was fine and the nose was improved. Material risks involved in these procedures were explained by him on 31 January 2002 and 9 September 2004.
[69]Exhibit G and Exhibit 7
78 When he wrote “realistic expectations”, he had meant she understood what was said about the procedure and followed discussion about what the operations involved, the risks and likely outcomes. While he had no specific recollection now of the conversations on 31 January 2002 and 9 September 2004, he said he would use an interpreter if one was required to assist the patient to understand.
79 He agreed with the plaintiff that it was not his practice, in a busy outpatients’ situation, to write out all the risks discussed on the second Consent Form, and he followed that practice on 9 September 2004. The risks section was completed on that form by the Registrar, Mr Semple, on 7 February 2005. He repeated that the surgery had led to a “good result” and it was overall “very satisfactory”. I accept Mr Sherman’s evidence. He was an impressive witness who made a number of concessions throughout his evidence about his practice in a busy outpatients setting. In particular, I prefer his evidence to that of the plaintiff in regard to the discussions they had on 31 January 2002 and 9 September 2004.
80 The plaintiff tendered a Medical Panel Opinion regarding her injury but it does not take the issues in this trial any further.[70]
[70]Exhibit H
81 Two further medical reports were also tendered by the plaintiff. Ms Serpil Ozturk, a treating psychologist, reported on 7 July 2008.[71] She recorded counselling sessions taking place up to 2008 for a Major Depressive Disorder following the surgery. She recorded there had not been any psychological disorder in the past nor had the plaintiff ever consulted a psychologist or psychiatrist before.[72]
[71]Exhibit J
[72]Exhibit J at page 2
82 The reports of Professor Lorraine Dennerstein dated 30 September 2008 and 19 March 2009 were tendered.[73] It was in a medico-legal context the doctor recorded that the plaintiff said she had no problems with mental health before the nasal surgery in 2005.[74] The psychiatric illnesses post-surgery were diagnosed. The plaintiff on several occasions stated she had no history of psychiatric problems pre-surgery.[75]
[73]Exhibit K
[74]Exhibit K at page 4
[75]T222–223
83 The reports of Ms Ozturk and Professor Dennerstein do not take the matter any further in regard to the appropriate procedures and advice about material risks for a public hospital with regards to the nasal surgery in 2005.
84 The duty to warn a patient of material risks of a procedure has been spelt out on numerous occasions:
“The law should recognise that a doctor has a duty to warn a patient of a material risk inherent in the proposed treatment; a risk is material if, in the circumstances of a particular case, a reasonable person in the patient’s position, if warned of the risk, would be likely to attach significance to it or if the medical practitioner is or should reasonably be aware that the particular patient, if warned of the risk, would be likely to attach significance to it.”[76]
[76]Rogers v Whitaker (1992) 175 CLR 479 at 483; Odisho v Bonazzi [2014] VSCA 11 at paragraphs 10–13; s50 of the Wrongs Act 1958
85 A particular patient with special needs or concerns can require, in all the circumstances, an analysis of what is required of a medical practitioner with such a patient. The plaintiff gave evidence of some concerns and anxiety about aspects of the surgery she was facing. I accept everyone facing surgery has some concern and anxiety. However, she did not communicate anything that would inform the hospital’s employees there was some particular need to go further by way of warning or explanation of the risks involved. She had apparently suffered bleeding after a tonsillectomy at an earlier stage, but on the evidence, she really told the medical people she saw little else. There is no evidence I accept of her relaying any special concerns to any of her general practitioners, Mr Basham, the RMH staff, Mr Sherman, Mr Semple or anyone else.
86 The defendant’s employees certainly had no reason in all the circumstances to consider something “special” about this patient that required taking any extra steps. In fact in July 2004, she herself sought an appointment which she was then given in September 2004 in order to expedite or bring the operation forward. This was not consistent with a patient who needed some extra warnings or explanations. She did not tell any doctor of the knowledge she said she had gained from a friend about the death of a man following nasal surgery. In particular, there was no evidence of any pre-operative psychiatric illnesses or conditions. In fact her evidence was the opposite.[77]
[77]T222-224
87 There was no evidence in this case that psychiatric injury was a material risk of either the septoplasty or rhinoplasty. Five ENT specialist witnesses gave evidence to that effect. In fact the majority of them had never heard of it before.
88 Edition 1 of the Royal Australasian College of Surgeons document on the Surgery of the Nose published on 13 December 2004 listed nine general risks and twelve specific risks.[78] Psychiatric injury is not one of them. Even today, ten years later, the literature does not include it.[79]
[78]Exhibit 4
[79]T389
89 The defendant’s final submission was there is no basis for a claim in contract. As the plaintiff was a public patient at a public hospital, it was said no contract existed. This may be the case legally but the hospital agreed to treat her and I consider the duty to obtain informed consent involving appropriate advice about material risks is what must be dealt with here. It is relevant when a patient agrees to go into an operating theatre as well as in tort.
90 I was taken to the provisions of the Wrongs Act. The absence of any evidence that could discharge the plaintiff’s onus in regard to risks means little discussion of those provisions is required. Save to say the risk of psychiatric illnesses was not foreseeable. It could also be said to be so insignificant as to really have been negligible on the evidence.[80]
[80]Section 48 of the Wrongs Act 1958
91 For the reasons mentioned, the plaintiff has failed to discharge the onus of proof in this case in regard to any agreement to treat her and in negligence. The proceedings must be dismissed.
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