Perceval v Newcastle Mater Misericordiae Hospital

[2000] NSWCA 47

CITATION:	PERCEVAL v NEWCASTLE MATER MISERICORDIAE HOSPITAL [2000] NSWCA 47 revised - 15/03/2000
FILE NUMBER(S):	CA 40404/98
HEARING DATE(S):	7 March 2000
JUDGMENT DATE:	7 March 2000
PARTIES :	MAUREEN ANN PERCEVAL v NEWCASTLE MATER MISERICORDIAE HOSPITAL & ANOR
JUDGMENT OF:	Meagher JA at 1; Handley JA at 2; Stein JA at 26

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	DC 5636/97
LOWER COURT JUDICIAL OFFICER :	Williams AJ

COUNSEL:	K M Connor/W Walsh (Appellant) D L Williams (Respondent)
SOLICITORS:	Emery Partners Cessnock (Appellant) Lynn Boyd Solicitors (Respondent 1) Yeldham and Associates (Respondent 2)
CATCHWORDS:	MEDICAL NEGLIGENCE - CAUSATION - ADEQUACY OF REASONS - NO QUESTION OF PRINCIPLE
CASES CITED:	Lownes v Woods (1996) ATR 81 Soulemezis v Dudley Holdings (1987) 10 NSWLR 247
DECISION:	Appeal dismissed with costs

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

40404/98
DC 5636/97

MEAGHER JA
HANDLEY JA
STEIN JA

7 March 2000

MAUREEN ANN PERCEVAL v NEWCASTLE MATER MISERICORDIAE HOSPITAL & ANOR

JUDGMENT

1    MEAGHER JA: The Court is now in a position to give judgment and I will ask Handley JA to give the first judgment.
2    HANDLEY JA: This is an appeal by the plaintiff from the judgment of the then Williams ADCJ in a medical negligence case. The plaintiff was admitted to the Mater Misericordiae Hospital in Newcastle on or before 17 April 1991 for a biopsy of both breasts where lumps had been detected on examination. The biopsy occurred on 17 April and the plaintiff was discharged from Hospital in the early evening the following day. She complained of pain and discomfort in her right armpit, arm and shoulder in the period immediately after discharge and gave evidence that on the following Tuesday 23 April the site of the surgical incision near her right arm ruptured and a black fluid was discharged while she was having a shower. The discharge relieved her symptoms and the wound healed rapidly. She was seen by her surgeon in the first outpatient consultation on 24 April. 3    The plaintiff developed the symptoms of frozen shoulder in her right shoulder and brought proceedings against the surgeon, Professor John Forbes, and the Hospital for negligence in the surgery and in her pre and post-operative treatment. 4    The amended statement of claim pleaded a number of particulars of negligence but all these were negatived by the trial Judge who found either that there had been no negligence or that any negligence had not been causative of the symptoms in her right shoulder. 5    The trial occupied a number of days in April and May 1998 and the Judge reserved his judgment and delivered a 24 page judgment a week later. A notice of appeal, which was amended by leave at the hearing, raises only three grounds of appeal and I set these out:

“GROUNDS
1. His Honour misdirected himself as to the relevant legal principles to be applied in determining whether the respondents had breached their duties of care to the appellant by applying statements made by Mahoney P in Lowns v Woods [1996] ATR 81-376, at 63,160 to 63,161 to this case.
2. His Honour failed to determine the appellant’s claim based on the drain not being in the wound.
3. Alternatively to 2, his Honour erred in law by failing to provide sufficient and adequate reasons for rejecting the appellant’s claim based on the drain not being in the wound”.

6    The first ground of appeal alleges that the trial Judge misapplied the statements of Mahoney P in Lowns v Woods when dealing with the claim that the respondents failed to exercise reasonable care in the treatment of the plaintiff in the period immediately after the surgical procedure. 7    In my judgment the submissions in support of this ground of appeal are based on a misunderstanding of the reasons of the trial Judge. The passage from Lowns v Woods deals with the approach which the Court should take when invited to find that a clinical decision of a medical practitioner was not only wrong but negligent. His Honour in my view directed himself in accordance with that principle when considering the submission made by senior counsel for the plaintiff at the trial that the defendants, and in particular Professor Forbes, had been negligent in failing to institute any pre-operative or post-operative physiotherapy. The Judge rejected this part of the plaintiff’s case and his decision in that respect has not been challenged on appeal. 8    The decisions of Professor Forbes, explicit or implicit, that pre-operative and post-operative physiotherapy was not required for the plaintiff were, of course, clinical decisions and it was entirely appropriate for the trial Judge to direct himself in accordance with Lowns v Woods in the passage cited when considering whether the plaintiff had been established to his satisfaction that those decisions were negligent. 9    Mr Connor, who argued this case well for the appellant, submitted that the trial Judge erred in directing himself in accordance with Lowns v Woods when considering whether the defendants failed to exercise reasonable care in the post-operative treatment of the plaintiff. 10 His Honour dealt with this part of the plaintiff’s case in the long paragraph at p 34 of his reasons but he does not suggest that any of the events involved a clinical decision by Professor Forbes, and it is not self-evident that any such decision was involved in the post-operative treatment of the plaintiff. 11 The trial Judge dealt firstly with the submissions on behalf of the plaintiff. He found that a drainage tube, which had been fixed to the site of the surgical wound on the right hand side of the plaintiff’s body, had become dislodged at some stage. The plaintiff, through her senior counsel, submitted that this drainage tube either had not been inserted properly by Professor Forbes, or had subsequently become dislodged, inferentially, as the result of some negligence on the part of Hospital staff. The Judge found that in all probability the tube was dislodged rather than not inserted properly. 12 His Honour then found that there was nothing to suggest that the fact that the drain was not operating was something that should have been taken particular account of during the post-operative treatment of the plaintiff because, as he said, such a drainage tube may not operate, that is to discharge fluid, even when it remains properly in situ. He continued:

“The fact that there was an accumulation in the plaintiff’s wound was something that could have occurred whether or not a drain was in situ. Even accepting that the accumulation became infected, the course of the infection was short, the wound showing signs of healing one day after the discharge of the fluid and was completely healed one week later. As I have stated, it is doubtful that such an infection could have compromised the capsule, that is the axilla capsule, by either direct infection or scarring of subcutaneous tissue”.

13    None of the findings made in this paragraph were directly challenged by counsel for the appellant. Indeed he relied on some of those findings. This analysis demonstrates that the trial Judge did not direct himself in accordance with the principle in Lowns v Woods when making findings about the events which occurred after the surgery, or their causative effect. In no sense was any clinical decision involved. 14    The plaintiff, in my judgment, has failed to establish that the Judge misdirected himself as alleged in the first ground of appeal. 15    The third ground of appeal alleges that the trial Judge failed to give adequate reasons for rejecting the plaintiff’s claim that the drain was not in the surgical wound on her right side. 16    The legal requirement that a trial Judge give adequate reasons to explain his or her decision is not in doubt, and the principles are to be found in the decision of this Court in Soulemezis v Dudley Holdings (1987) 10 NSWLR 247. 17 In my judgment the trial Judge’s reasons for rejecting this aspect of the plaintiff’s case are set out in the long paragraph on p 34. That paragraph must be read with his earlier finding on p 27 of his reasons for judgment, which I quote:

“At the outset it perhaps needs to be said there is no evidence that would satisfy me on the balance of probabilities that the surgery carried out by Professor Forbes was major surgery that breached the axillary floor or entered the axilla proper. Although the procedure was referred to as a left and right axillary node biopsy, there is really no evidence to suggest that the lymph nodes were involved in either of these procedures and certainly there is no evidence in the histopathology report of any biopsy of the lymph nodes themselves. I accept therefore on balance that both procedures were relatively superficial.
If the plaintiff suffered an infection consequent upon this operation, then I am also satisfied on the balance of probabilities that the infection was a minor one which had commenced to clear up by the 24 April, 1991 and had disappeared completely by 30 April, 1991”.

18    When these two groups of findings are taken together, it is clear that the Judge rejected this part of the plaintiff’s claim because he was not satisfied that the plaintiff had established a causal link between the surgery, the malfunction of the drain as a result of its dislodgment and the subsequent infection and the condition of her right shoulder. He had earlier referred to the fact that the aetiology or causation of capsulitis, that is frozen shoulder, is uncertain. In other words, people can acquire a frozen shoulder for no apparent reason. In these circumstances I have not been persuaded that the Judge’s reasons for judgment were inadequate as a matter of law, and the third ground of appeal also fails. 19    The remaining ground of appeal alleged that the trial Judge had failed to determine the appellant’s claim based on the drain not being in the wound. The findings referred to at pp 27 and 34 of the reasons for judgment were not challenged but the submission was that additional findings should have been made. The basis of this submission was that the findings of fact by themselves cannot explain the decision and do not adequately deal with this part of the plaintiff’s case. 20    The Judge’s findings that the procedure was superficial, the axillary floor had not been breached and the axilla proper had not been entered, the infection was a minor one, and that the aetiology of capsulitis is uncertain and can be suffered without any known or apparent cause, demonstrate that the Judge was simply not persuaded that the plaintiff had made out the causal nexus required on this part of the case. 21    There was evidence which the trial Judge referred to that a drainage tube is not used in this type of procedure by some doctors. It would indeed be strange if the failure to use an additional precaution in the post-operative care of a patient should turn out to be causative of some complication when, on the evidence, some surgeons do not use this additional precaution at all. 22    Dr Sonnabend, who was qualified on behalf of the defendants, said that infection is a rare but well recognised complication of surgery in any part of the plaintiff’s body and he suspected this was the cause of the plaintiff’s predicament. He added: “Its relationship to the dislodged suction drain cannot be determined”. There was other evidence to the same effect. It is apparent from the cross-examination by senior counsel for the plaintiff of Professor Nade that her case on this issue was that this was major surgery that had involved penetration of the axillary floor and the axilla proper. The rejection of these contentions on behalf of the plaintiff and the finding that the procedure on the plaintiff’s right breast was relatively superficial involved the rejection of this part of the plaintiff’s case. 23    In those circumstances, I have reached the conclusion that the second ground of appeal has not been made out. I find that the trial Judge did determine this part of the plaintiff’s case as presented to him at the trial by making the findings of fact that I have referred to. 24    In my opinion therefore the appeal fails and should be dismissed with costs. 25    MEAGHER JA: I agree. 26    STEIN JA: I also agree with Handley JA and would make some brief remarks. 27    There are three grounds in the amended notice of appeal. 28    Ground 1 must be rejected. There was no misdirection by his Honour on the relevant legal principles to be applied, nor any misapplication of Lowns v Woods (1996) ATR 81 at 376. 29 Ground 2 alleges a failure to determine what was described in submissions as the appellant’s primary claim on the basis of the drain not being in the wound. To the contrary his Honour did determine the issue and the claimant failed on the issue of causation. With respect to this ground, it may be noted, as Handley JA has, that there are no grounds of appeal challenging the relevant findings of fact. 30 As to ground 3, his Honour gave sufficient and adequate reasons for rejecting the claim in relation to the drain not being left in the wound. Notwithstanding the careful argument put by counsel for the appellant, and my natural sympathies to the appellant which I am sure is shared by the Court, the appeal must fail. 31 MEAGHER JA: The order of the Court is therefore the order suggested by Handley JA.
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