Phelps v Cossetto

[2002] NSWSC 903

CITATION:	PHELPS v COSSETTO & Anor [2002] NSWSC 903
CURRENT JURISDICTION:	Common Law
FILE NUMBER(S):	SC 20689/00
HEARING DATE(S):	26/03/02-28/03/02, 02/04/02-04/04/02, 02/05/02
JUDGMENT DATE:	1 October 2002
PARTIES :	Cheryl PHELPS (Plaintiff) v Dr David COSSETTO (First Defendant) & Dr Mark RYAN (Second Defendant)
JUDGMENT OF:	Barr J at 1

COUNSEL :	Plaintiff: P Menzies QC/D Graham First and Second Defendants: P Garling SC
SOLICITORS:	Plaintiff: Carroll & O'Dea First and Second Defendants: Tress Cocks & Maddox
CATCHWORDS:	Breach of professional duty - warning of risks of surgery - whether necessary - Breach of professional duty - warning of risks of surgery - whether warning given - Breach of professional duty - advice about alternative to surgery - whether duty to explain
DECISION:	See paragraph 137

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
PROFESSIONAL NEGLIGENCE LIST

GRAHAM BARR J

Tuesday, 1 October 2002

20689/00 – Cheryl PHELPS v David COSSETTO & Anor

JUDGMENT

1 HIS HONOUR: The plaintiff, Mrs Cheryl Phelps, sues the defendants, Dr David Cossetto and Dr Mark Ryan, for damages arising from a stroke she suffered after a surgical operation performed on 2 June 1998. Dr Cossetto is the orthopaedic surgeon who operated. Dr Ryan is the cardiologist who advised Mrs Phelps.

2 The parties have agreed about damages and the only question to be decided is whether the defendants or either of them were in breach of their duty to Mrs Phelps as her medical advisers.

3 Mrs Phelps was born on 11 July 1948. As a child she contracted poliomyelitis, which left her with a permanently weakened left side. Mrs Phelps’ polio so affected her left leg that it was permanently incapable of supporting the weight of her body. In such patients a calliper is used to transfer the body weight through a rigid frame to the heel of the boot or shoe and so to the ground. The frame has to be rigid because the patient cannot control flexion at the knee joint. The frame is made of some hard material such as steel, as it was in Mrs Phelps’ case. The top of the calliper comprises a ring, more or less circular, which fits around the thigh. The hard core of the ring is covered with a soft material to help spread the absorption of weight and make the calliper less uncomfortable to wear. In Mrs Phelps’ calliper that material was leather. The ring, or cuff as it is known, encircles the thigh and bears weight at all parts of its circumference. However, the greater part of the body’s weight is borne by a smallish part at the back of the cuff where it comes close to the ischial tuberosity, a projecting portion of the underside of the ischium, one of the bones of the pelvis. That part of the cuff is sometimes called the shelf or seat.

4 During 1993 or 1994 Mrs Phelps suffered chest pains and mitral valve disease was diagnosed. She came under the care of Dr Ryan in September 1994. In December 1994 she was admitted to Royal Prince Alfred Hospital, where an artificial mitral valve was fitted. Blood which comes into contact with such artificial devices is liable to clot and an anticoagulant has to be administered to control that tendency. Accordingly, Mrs Phelps was prescribed Warfarin. Warfarin is a long-acting drug which can be taken orally by tablet. Before Mrs Phelps could be discharged from hospital the Warfarin had to be stabilised, which is to say that her blood needed to be brought within an acceptable range of “thinness”, thin enough to remove the tendency to clot but not thin enough to give rise to the risk of uncontrollable bleeding in case, say, of accident. In due course the Warfarin was stabilised and she was discharged from hospital.

5 The condition of Mrs Phelps’ blood remained stable until November 1996, when she experienced a visual disturbance with severe right eye pain and what was described as “a blackness”. There was right-sided weakness, mainly in the arm and hand, with some associated numbness. There was labile hypertension. She was seen by Professor John Pollard, neurologist, who thought that Mrs Phelps had suffered a stroke caused by platelet emboli from her artificial mitral valve. Her symptoms soon resolved, though when she was reviewed in February 1997 there was some residual numbness in the hand.

6 As a result of that accident Mrs Phelps was prescribed Persantin (dipyridamole) in addition to Warfarin. Persantin is a shorter-acting drug than Warfarin whose effect is to counter the tendency of blood platelets to coagulate. Persantin, too, is taken by tablet.

7 Mrs Phelps suffered bruising and pleuritic chest pain after a fall in September 1997. She came under the care of Dr Ryan once again. Those symptoms resolved.

8 By 1997 Mrs Phelps was suffering from a number of conditions and disabilities. There were the effects on her left side of polio. There was the artificial valve and the need to take Warfarin and Persantin. She had hypertension, lupus erythematosus, osteoporosis and antiphospholipid syndrome.

9 Late in 1997 Mrs Phelps noticed a lump behind her left thigh. It became painful when she put weight on the calliper. Her general practitioner, Dr Parker, referred her to Dr Cossetto. She and Mr Phelps attended Dr Cossetto’s rooms on 28 May 1998.

10 The parties do not agree about everything that was said and done on that occasion and immediately afterwards and it is convenient to defer consideration of those events except to say that in the presence of Dr Cossetto and Mr Phelps Mrs Phelps signed a document entitled Request for Surgical Operation, Procedure and/or Medical Treatment and referred to by Dr Cossetto as an “informed consent”.

11 Mrs Phelps entered Nowra Community Hospital on Sunday 31 May 1998. Dr Cossetto excised the lump under general anaesthetic on Tuesday 2 June. A histopathology report confirmed that it was a subcutaneous lipoma. Mrs Phelps was recovering well from the operation. However, on the morning of Thursday 4 June she complained of dizziness and acute blindness. She was resuscitated and transferred to a high-dependency ward with monitoring. A local physician managed her there. When Dr Ryan saw her later in the day she was having some difficulty with her speech. On the following day Dr Ryan noted weakness of the right hand as well as speech difficulties. All symptoms were consistent with cerebrovascular accident.

12 A rehabilitation specialist was consulted on 11 June in view of the speech difficulties and right hand weakness, which were still present. Although Mrs Phelps’ condition has improved she still has difficulty remembering words and the motor function of her right side is partially impaired so that she now needs help to get into and out of a car. The loss of power in her right hand and weakness of extension at the right elbow have affected the fluency and quality of her writing. She was previously independent in getting into and out of chairs, dressing, putting her calliper on and getting it off and getting into and out of the bath, but now she needs help for these operations. Although the wound resulting from the excision of the lipoma reopened on a couple of occasions it eventually healed well.

13 The history I have so far related is uncontroversial. The dispute is as to the events which took place in Dr Cossetto’s rooms during Mr and Mrs Phelps’ consultation and thereafter until the operation was performed. No complaint is made about the manner in which surgery was performed or about the perioperative care given.

14 Mrs Phelps says that Dr Cossetto was negligent or in breach of his duty towards her in the following ways -

(i) failing to provide her with certain information before obtaining her consent to undergo the operation;

(ii) failing to refer her to a prosthetist to obtain a better fitting calliper;

(iii) performing an unnecessary operation; and

(iv) advising her to undergo an operation with major risks when he knew or ought to have known that the lump was benign.

15 The information Mrs Phelps says Dr Cossetto failed to provide was defined in the statement of claim and refined during the hearing to mean -

item (i) The lump need not be removed;

item (ii) the discomfort in the lump could be alleviated by fitting new callipers;

item (iii) there was a risk that Mrs Phelps could suffer a stroke as a result of her Warfarin and dipyridamole being ceased before, during and after the operation; and

item (iv) the risk of a stroke was more serious than the risk of bleeding from the operative wound.

16 Dr Cossetto admits that he owed Mrs Phelps a duty of care but denies any breach of it.

17 These are the particulars of breach of duty alleged on the part of Dr Ryan -

(i) failing to provide Mrs Phelps with the information set out in para 15 prior to her undergoing the operation; and

(ii) concurring with the advice of Dr Cossetto that she should undergo an operation with major risks when he knew or ought to have known that the lump was benign.

18 Dr Ryan admits that he owed Mrs Phelps a duty of care but denies that it included any obligation to provide such information and that he was in breach of his duty.

19 A medical practitioner has a duty to exercise reasonable care and skill in the provision of medical advice and treatment. It is a single, comprehensive duty covering the examination, diagnosis and treatment of the patient and the provision of information in an appropriate case. The standard of reasonable care and skill required is that of the ordinary skilled person exercising and professing to have that special skill: Rogers v Whittaker (1992) 175 CLR 479.

20 What Mrs Phelps must therefore prove against Dr Cossetto is that -

– he failed before obtaining her consent to inform her of any of items (i), (ii), (iii) and (iv) in para 15 above;
- he failed to refer her to a prosthetist to obtain a better fitting calliper;
- he performed an unnecessary operation; or
- he advised her to undergo an operation with major risks when he knew or ought to have known that the lump was benign

and that in any case he thereby fell short of the standard of reasonable care and skill of the ordinary orthopaedic surgeon exercising and professing to have that skill.

21 What Mrs Phelps must prove against Dr Ryan is that -

- he failed before she had the operation to inform her of any of items (i), (ii), (iii) and (iv) in para 15 above; or
- he concurred with the advice of Dr Cossetto that she should undergo an operation with major risks when he, Dr Ryan, knew or ought to have known that the lump was benign

and that in any case he thereby fell short of the standard of reasonable care and skill of the ordinary cardiologist exercising and professing to have that skill.

22 It is for Mrs Phelps to prove not only that the defendants or either of them were in breach of their duty towards her as her advisers but that any such breach was a cause of the harm that resulted when she decided to undergo surgery. Her case is that the harm she suffered as a result of the stroke would have been avoided if the defendants or either of them had not been in breach of duty in any of the ways pleaded because she would not have submitted herself to the risks of surgery.

The case against Dr Cossetto

23 In May 1998 Mrs Phelps was working voluntarily for a charitable institution, organising rosters of voluntary workers, attending patients in respite care and performing services for them. During that month she went to her general practitioner, Dr Parker, complaining that her calliper was rubbing on her leg and giving her pain so that she was unable to stand up all day, as was apparently required by her voluntary work. Dr Parker referred her to a general surgeon, Dr Jones, but he was unable to offer an appointment for some time. It was then that Dr Parker referred Mrs Phelps to Dr Cossetto.

24 Mrs Phelps did not find it easy to get about and sometimes her husband, Mr Terrence Phelps, would drive her and accompany her to medical and other appointments. He was with her when she saw Dr Cossetto in his rooms on Thursday 28 May 1998.

25 Mrs Phelps’ evidence was that she did not remember taking with her any referral letter from Dr Parker. She said that Dr Cossetto asked her what she was there for and that she showed him a lump under the cuff of her calliper, which was cutting into her. In order to show him the lump she sat on a chair, leaned over and pulled up her dress. Dr Cossetto said that he could see it, that that was enough and that she could pull down her dress. He said that he would handle it and that it was only a minor operation. He did not say anything about what he was actually going to do. Mr Phelps told him that she had had a heart valve replaced and was taking anticoagulant drugs and suggested that he speak to Dr Ryan, who had treated her and knew her problems. Dr Cossetto tried to speak to Dr Ryan on the telephone but could not reach him.

26 Mrs Phelps also said that Dr Cossetto asked her about the effects upon her of polio and that she explained them. He told her that he did not have any experience of treating anyone who had had polio. He said nothing about the risks of having the proposed surgery. He said nothing about having the calliper modified rather than have her undergo surgery.

27 She said that if changing the calliper to relieve the friction had been suggested rather than having surgery she would have chosen it. If she had been told that there was no choice but surgery but that surgery would entail the risk of stroke she would not have gone ahead with the surgery.

28 Mrs Phelps said that at some time between the consultation with Dr Cossetto and the time when she entered hospital for the operation she received a telephone call from someone at the hospital who told her to stop taking Warfarin and Persantin. She stopped taking them as requested.

29 Mrs Phelps said that she did not see Dr Cossetto between the time of the consultation in his rooms and the time of surgery. In cross-examination she said that she did not deny seeing him but did not remember it. She said that before the operation was performed she spoke to the anaesthetist, who asked her whether she had thought clearly about having the operation.

30 This account was on any view incomplete and in some respects inaccurate. Mrs Phelps denied or failed to remember the occurrence of events that I am satisfied took place. She frankly conceded that since suffering the stroke in 1998 her memory and speech had not been good. Her expressive and receptive dysphasia following upon that occasion are demonstrated in the reports which have come into evidence.

31 Dr Faux, a rehabilitation physician, saw Mrs Phelps in January this year at the request of her solicitors. Mr Phelps was present. Dr Faux noted that Mrs Phelps deferred to Mr Phelps to assist her to answer most of his questions and that prompted him to undertake what he called a mini-mental state examination. That, he explained, was not a series of formal psychological tests but was sufficient to provide an objective indication about Mrs Phelps’ mental processing of information. He concluded that there were deficits in concentration, short-term memory and visuo-spatial skills. Testing showed poor information processing, poor abstract thought, poor attention, easy distractibility and poor ability to calculate.

32 Miss Melissa Staples, psychologist, saw Mrs Phelps on behalf of the defendants. After formally testing Mrs Phelps she concluded that her probable pre-morbid intellectual ability was in the average to low-average range but that she had suffered marked impairment of mental tracking, attention and speed and accuracy of information processing. She noted persistent impairment of expressive and receptive language skills and the presence of visuo-spatial deficits in the form of constructional apraxia and impairment of left-right orientation. She concluded that there had been a general decline in intellectual capacity.

33 I found Mrs Phelps unable from time to time to understand a question she was being asked or to find a word or a phrase with which to answer. I do not doubt that her difficulties arose from her stroke.

34 Her evidence that she did not see Dr Cossetto or Dr Ryan between the times of the consultation and the operation cannot be accepted. Both defendants swore to having spoken to her in hospital before surgery, when one would have expected them to speak to her, and their evidence is supported by hospital records. Realistically, counsel for Mrs Phelps did not suggest to either defendant that he had not spoken to her before the operation. But these and other frank errors to which I shall refer obviously result from the effects of her stroke and although it becomes necessary to approach her evidence cautiously to make sure that it is reliable in relevant respects none of these matters causes me to doubt her honesty.

35 In cross-examination Mrs Phelps said that she saw Dr Ryan regularly after the mitral valve replacement and had to have blood tests done regularly to monitor the level of anticoagulants in the blood. She knew that the Warfarin was prescribed so that her blood would not clot. She nodded when asked whether she knew that if her blood did clot she might have a stroke. She doubted whether Dr Ryan had told her that she might possibly have a stroke even though taking Warfarin. She knew that she had had a stroke in 1996, though she associated it with pills that Dr Parker had prescribed for menopause and which led, she said, to high blood pressure. She knew that she had to continue to take Warfarin as well as the newly prescribed Persantin. She knew that if she did not take them or enough of them she was at risk of having a stroke.

36 Dr Cossetto said that he recalled most of the consultation of 28 May. After an exchange of greetings, during which he asked Mr and Mrs Phelps about the health of their daughter, about whom he had previously seen Mrs Phelps (and at whose surgical operation he later assisted), Dr Cossetto read Dr Parker’s letter of referral. He asked Mrs Phelps what the problem was and she told him that she was being troubled significantly by a lump which was being pressed on by the upper part of her calliper and which was causing her a great problem walking and considerable pain by the end of the day. He asked her about the calliper. He already knew from their previous meetings that she had had polio. She was not the first polio sufferer he had treated. In order to examine her he had her stand, using her crutches. Mr Phelps stood in front of her and Dr Cossetto stood behind her. Her skirt was lifted and the upper end of the calliper exposed. Dr Cossetto removed a handkerchief which had been placed where the lesion had been rubbing against the upper parts of the calliper. So the lump was exposed and he looked at it. It was round, about one and a half centimetres in diameter. It seemed to be adhering to the skin overlying it. It was reddish-purple and looked inflamed. Dr Cossetto palpated it and it was very tender. The lump was above the gluteal fold between the ischial tuberosity and the weight-bearing portion of the calliper.

37 Dr Cossetto told Mrs Phelps that if the lesion were particularly troublesome there were non-operative and operative options available, its being a soft tissue lump, and that in his opinion, because of the position it was in, the excision of the lump would be the most appropriate course of action. Mrs Phelps said that she would like to have the lump removed. He proposed the following Tuesday, 2 June, for the operation.

38 Dr Cossetto knew nothing about Mrs Phelps’ medical history at that stage other than that she had suffered polio.

39 Mr Phelps told him that Mrs Phelps had undergone a mitral valve replacement, that a couple of years afterwards she had suffered a stroke and that she suffered from systemic lupus erythematosus. He said that she was taking regular Warfarin and that her cardiologist was Dr Ryan. Dr Cossetto knew from having been told these things that it was necessary to discuss with Dr Ryan the appropriate perioperative treatment to be administered and to ascertain whether or not the risk of surgery was worthwhile in Mrs Phelps’ case.

40 With Mr and Mrs Phelps in the room he telephoned Dr Ryan and spoke to him. He told Dr Ryan that Mrs Phelps was present with her husband and that she had presented with a painful lump in the upper portion of her left lower limb which would be best managed with an excision. He told him that it had been brought to his attention that she had various medical conditions and was on Warfarin and asked for his advice about appropriate perioperative management and whether Dr Ryan would take over that management on Mrs Phelps’ admission to hospital. Dr Ryan said that he would be happy to assist in Mrs Phelps’ management and that she should cease taking Warfarin after her dose that evening, Thursday. He would prefer her to be admitted to hospital on the following Sunday, there to be commenced on intravenous Heparin. Dr Ryan would see her in hospital as soon as possible after her admission.

41 After the telephone call Dr Cossetto told Mr and Mrs Phelps that Dr Ryan would be very happy to assist in managing Mrs Phelps before and after surgery. He told Mrs Phelps that she needed to be admitted on the Sunday prior to surgery, when she would be given intravenous Heparin, and that she should stop taking Warfarin after the Thursday night dose. He said that the Warfarin needed to be stopped for the procedure and that that in itself had a risk of stroke attached to it. That was why Mrs Phelps needed to be brought in to hospital earlier than usual in order to have intravenous Heparin. He also said that the other risks of surgery were those attendant with having an anaesthetic, a risk of infection and a risk of wound breakdown.

42 Neither Mrs nor Mr Phelps asked him any questions about these matters. He produced the form to which I have referred, filled in parts of it and asked Mrs Phelps to sign it. She did so.

43 Mr Phelps gave evidence. He said that after greeting him and Mrs Phelps Dr Cossetto read, or at least looked at, Dr Parker’s letter of referral. Counsel showed him the letter, a handwritten document, but he said that he thought that the letter had been typed and contained “more information regarding some complication”. He said that Dr Cossetto was interested in the effects on Mrs Phelps of polio. Mr Phelps did not believe that there was a lot more conversation about her complicated medical history. Dr Cossetto examined Mrs Phelps by kneeling beside and slightly behind her and looking down inside the calliper cuff. He did not believe that Dr Cossetto placed his hand inside the cuff. The lump was about twenty-five millimetres below the gluteal fold and about the same distance below the top of the calliper cuff. Dr Cossetto said that the lump could be cut off. Mr Phelps asked about the complicated diseases Mrs Phelps suffered from and about Warfarin and suggested that Dr Cossetto speak to Dr Ryan about those matters. He asked Dr Cossetto whether there were a bleeding problem with Warfarin. Dr Cossetto telephoned for Dr Ryan but was unable to speak to him. Nothing specific was discussed about Warfarin. Nothing was said about the advantages or disadvantages of surgery. There was no discussion about going to a prosthetist to see whether the calliper could be changed. There was a detailed discussion, however, about the need to mobilise Mrs Phelps more quickly after surgery than any ordinary patient so as to avoid deterioration of the muscles in a condition Mr Phelps called post-polio. Dr Cossetto said that Mrs Phelps had to sign the form of consent. She looked at it and signed it. Neither she nor he asked any questions about it. They left Dr Cossetto’s rooms and went to the nearby hospital to book in. They took with them a piece of paper that said that Mrs Phelps was to enter hospital.

44 If the risk of stroke had been raised Mr Phelps would have asked Mrs Phelps to reconsider having surgery. He would not have encouraged it.

45 Before Mrs Phelps went into hospital, he said, she told him that she had received a telephone call from someone at the hospital who told her that she had to enter hospital a day early to stop taking her Warfarin. He thought that it was on a Thursday that she told him about the telephone call.

46 Dr Ryan gave evidence. He first saw Mrs Phelps on 2 September 1994. He saw her frequently in hospital over the December 1994-January 1995 period when she was convalescing after the replacement of the mitral valve. He has seen her regularly ever since. After her first stroke he sat down with her and explained to her about the stroke and why it had occurred. He discussed with her the visit of the neurosurgeon who had seen her and what therapy was then recommended to try and prevent a recurrence of stroke. When he saw Mrs Phelps in hospital on or about 1 June 1998 he felt no need to warn her about the risk of stroke and did not warn her. He said that there were two reasons for that, namely that he believed that Mrs Phelps was well aware of the risk, following the explanation he had given her in 1996, and that he had expected that Dr Cossetto would have warned her of the risk before inviting her to sign the form of consent.

47 He said that on the Thursday before Mrs Phelps entered hospital he received a telephone call from Dr Cossetto. He did not remember the time of the call and had no note of it. Dr Cossetto told him that Mrs Phelps required surgery to remove a lump from her leg. He did not remember whether Dr Cossetto said that Mr and Mrs Phelps were with him. His impression was that they were present but he could not say why he had that impression. He and Dr Cossetto discussed anticoagulant therapy. He did not say so, but I infer that Dr Cossetto told him that he was thinking of operating on 2 June. Dr Ryan said that Mrs Phelps should cease taking her Warfarin after her dose that night, Thursday, and should enter hospital on Sunday so that intravenous Heparin therapy could be started. He and Dr Cossetto discussed the need for antibiotic prophylaxis and Dr Ryan said that he would arrange it during Mrs Phelps’ admission. This evidence implied that they discussed the reason why antibiotic prophylaxis was needed, namely the risk of subacute bacterial endocarditis.

48 He saw Mrs Phelps in hospital on 1 June and told her that the Warfarin had ceased and that the Heparin would be stopped four hours before the operation was due to commence. The timing of that procedure would be arranged by the anaesthetist. Warfarin and Persantin would be recommenced as soon after the operation as Dr Cossetto thought it safe to do so. Dr Ryan also discussed with her the antibiotic he considered appropriate in view of a history she had of allergic reaction to penicillin. She would be given a dose while there were doctors present so that if any problem emerged it would be monitored and attended to rapidly.

49 The clinical notes of Nowra Community Hospital bear out that Dr Ryan saw Mrs Phelps as he says and that an antibiotic was tried as he told her it would be.

50 Dr Cossetto was asked about the way in which documents were bought into existence and dealt with. He said that his staff prepared for him a manila folder and delivered it to him in time for each appointment. Within Mrs Phelps’ folder were Dr Parker’s letter of referral and two prepared pieces of paper. The referral letter was handwritten by Dr Parker on a printed form dated 20.5.1998 and addressed to Dr Cossetto. The relevant parts of the letter are as follows. The handwritten portions are reproduced in bold italics.

Thank you for seeing
Mr. /Mrs./ Ms. CHERYL PHELPS.
Date of Birth: 11.7.48
Address: 7 SUTTON ST
VINCENTIA 2540.
Presenting problem: Post polio – wears calliper
pressure granuloma ®
upper thigh - appears
to need excision
Current Medication: …
Reasons for referral: Review Appropriate management

51 The letter also asked Dr Cossetto to undertake consultation and ongoing treatment for twelve months. It was signed by Dr Parker.

52 The two prepared pieces of paper were of similar kind and size. In the top left-hand corner of the first page was a machined number, 02747, and a date stamp, 28 May 1998. On the top right-hand side was stuck a label of the kind produced on data processing equipment, bearing particulars relevant to Mrs Phelps as a patient generally and including the notation -

Treatment: LEFT LEG

53 All the information on the label was printed. The first sheet of paper was otherwise blank.

54 In the top left-hand corner of the second piece of paper the number 02747 was repeated in handwriting. In the top centre appeared the figure (2). Below it was a red ink impression made with a rubber stamp, headed “OPERATION” and containing panels for the insertion by Dr Cossetto of information.

55 Dr Cossetto used the first sheet of paper to make notes as he interviewed, observed and examined Mrs Phelps. He wrote this -

50yo. Polio (L) LL.
Long calliper
granuloma/painful skin lesion (L) thigh upper.
O/E
tender 1.5 cm soft tissue
lesion skin (?)
ptr upper (?) (L) thigh.
aggtd by calliper.
for E/O lump (L) ptr thigh.
informed consent

56 The evidence was that the abbreviation O/E meant observation and examination. I assume that aggtd means aggravated, that ptr means posterior and that E/O means excision of. The notation as to informed consent and the accompanying tick were written last and with a pen different from that used to make the preceding notes. I am unsure of the two words after which I have inserted bracketed question marks. They are not especially important, however, for counsel laid no stress upon them.

57 According to Dr Cossetto, he completed the notes in the course of the consultation immediately before the notation about informed consent. Having explained the risks of surgery, he took from a file in his room a printed but uncompleted form of request. He completed the relevant parts of it and Mrs Phelps signed it at his invitation. He added the date and witnessed Mrs Phelps’ signature. The original document was produced from the records of Nowra Community Hospital and was received into evidence. It is in the following form. The information written by Dr Cossetto is shown in bold italics.

NOWRA COMMUNITY HOSPITAL

REQUEST
FOR
SURGICAL OPERATION, PROCEDURE AND/OR MEDICAL TREATMENT

1, CHERYL PHELPS

of …

request that the following operation/procedure/treatment be performed

*upon me/upon E/O LUMP LEFT THIGH .

Following a discussion of *my/the patient’s present condition,
I accept the professional opinion of
Dr COSSETTO
that this is the appropriate operation/procedure/treatment for
* my/the patient’s condition.

I also request and consent to the administration of anaesthetics, medicines, blood transfusions or other forms of treatment normally associated with this operation/procedure
/treatment.

I understand that other unexpected operations/procedures/
treatments may be necessary and I request that these be carried out if required.

Although this operation/procedure/treatment is carried out with all due professional care and responsibility, I understand that in some circumstances the expected result may not be achieved.

I also understand that complications may occur with any operation/procedure/treatment, and I accept the possible risks associated with this operation/procedure/treatment.

58 The signature of Mrs Phelps follows, together with the date. It was agreed that the expression “E/O” meant “excision of”.

59 At the conclusion of the consultation Dr Cossetto handed the form of request to Mrs Phelps together with the hospital admission form to take to the hospital to book her admission.

60 On the same day Dr Cossetto wrote to Dr Parker. The body of his letter is as follows -

Thank you for referring Mrs Cheryl Ann PHELPS , whom I saw in my rooms today.
HISTORY : Cheryl is a 50 year old woman who as you know suffers from polio particularly on her left lower limb for which she uses a long leg double iron calliper with a locking knee hinge brace.
For quite sometime she has been troubled by a soft tissue lump on the posterior aspect of her thigh which is aggravated by the upper extremity of the calliper.
OPINION : I have made arrangements for Mrs Phelps to have this lump excised at the Nowra Community Hospital next week. I will keep you informed of her postoperative progress.

61 Dr Cossetto was cross-examined about his conversation with Dr Ryan. He said that they discussed only the need to manage anticoagulant therapy and how that should be managed. That was why he told Mrs Phelps that her Warfarin needed to be stopped that night and that she would have to enter hospital on Sunday so that she could be put on a Heparin drip and about the risk of stroke. He was acutely aware of the risk of stroke because only one month earlier he had experienced for the first time a patient’s having a post-operative stroke. He said he mentioned nothing to Mrs Phelps about infection other than explaining the ordinary risk of infection and wound breakdown following surgery. He said that if he had known that there was a risk of subacute bacterial endocarditis he would have said so, and he would have explained the need for intravenous prophylactic cover because those things would have been significant. However, he did not know because Dr Ryan had not mentioned such a risk of infection during their telephone conversation.

62 I was impressed with Dr Ryan’s evidence and accept that during the telephone call he and Dr Cossetto discussed anticoagulant management and the risk of subacute bacterial endocarditis. I accept that they were Dr Ryan’s major concerns. Both required a series of steps to be planned and put into effect which would not have been necessary for a patient not having Mrs Phelps’ disabilities. For a healthy patient, minor surgery of the kind contemplated would have been carried out in a single day without any need for any overnight stay. Because of Mrs Phelps’ disabilities, however, a change in her anticoagulant therapy needed to be made almost straight away and would take some time to achieve. She needed to be weaned off Warfarin and onto Heparin and that required an early admission to hospital. Because of her susceptibility under operation to subacute bacterial endocarditis the administration of antibiotic prophylaxis needed to be planned. That might not have been straightforward because of Mrs Phelps’ allergy to penicillin. It would have been surprising if Dr Ryan had not discussed both these topics with Dr Cossetto during their telephone conversation.

63 I accept Dr Ryan’s impression that Mr and Mrs Phelps were with Dr Cossetto at the time of the telephone conversation as an honest one, but I think that it was mistaken. He could not say why that was his impression. As I shall explain, the evidence points to the opposite conclusion.

64 I accept Dr Cossetto’s evidence that he did not discuss with Mr and Mrs Phelps the risk of subacute bacterial endocarditis and the consequent need for antibiotic prophylaxis. I think that that risk was a significant one about which Mrs Phelps ought to have been warned, a conclusion with which Dr Cossetto appears to agree. The error Dr Cossetto has made, I think, is in thinking that he spoke to Dr Ryan during the consultation and in rationalising that because he, Dr Cossetto, did not mention the subject Dr Ryan could not have mentioned it either. In my opinion the preponderance of evidence points to the conclusion that Dr Cossetto did not know of the risk of subacute bacterial endocarditis because he had not spoken to Dr Ryan when Mrs Phelps signed the form of request.

65 If Dr Cossetto had spoken to Dr Ryan before Mr and Mrs Phelps left his rooms Mr and Mrs Phelps would have known that Mrs Phelps had to enter hospital early. They went directly from his rooms to the hospital, only a short distance away. They must have taken with them the form of request and the hospital admission form. The original form of request bears prominently at the top a notation handwritten in red ink thus -

Adm: Tue 2nd June
FAST From midnight
call to Hospital

66 The document was not handled by any member of Dr Cossetto’s staff. It did not contain that notation when Dr Cossetto handed it to Mrs Phelps. He could not say who had made the notation. There is no suggestion that Mr or Mrs Phelps wrote it. I conclude that someone at the hospital must have written on the form. I am comforted in this conclusion by a comparison of the writing of the notation and the handwriting on the hospital admission form. The two appear to be of the same person.

67 The notation in red ink is apt for a patient being admitted to day surgery on 2 June. It seems unlikely, if it had already been decided that Mrs Phelps should enter hospital on Sunday, that the hospital employee should have noted an intended admission on Tuesday, the contemplated day of surgery.

68 A number of criticisms were levelled at Mr Phelps, particularly about the almost argumentative attitude he sometimes assumed in responding to questions. In my opinion he was wrong in a number of respects because his memory failed him. For example, he thought that Dr Parker’s letter of referral was a more extensive typed document, whereas I do not think that such a document existed. Mr Phelps made a mistake about the day on which Mrs Phelps told him she had received the telephone call from the hospital. He thought that it was on the Thursday about a week before Mrs Phelps went into hospital. Obviously, that was incorrect. These errors were not likely to advance Mrs Phelps’ case, however. The evidence about the extensive typed letter of referral, for example, might have damaged it. None of these matters leads to any conclusion that Mr Phelps was dishonest in his approach to the matter. He was criticised for repeatedly saying that he wanted to explain exactly how things happened, as though by those expressions he were only affecting to tell the truth. I think that he was trying to tell the truth. One indicator of his truthfulness was his eschewing any attempt to say that Mrs Phelps was initially booked into the hospital as a day patient, to enter hospital on 2 June.

69 I am satisfied that Mrs Phelps did receive a telephone call in which the caller told her to stop taking Warfarin after her Thursday night dose. She was mistaken insofar as she said that she was also told to stop taking Persantin. Clearly she was not told such a thing, for she continued to take it, as the hospital admission form records.

70 I believe Mr Phelps’ evidence that Mrs Phelps told him that she had received the telephone call. He was cross-examined to the effect that he originally said that Mrs Phelps told him about the telephone call on his return home from work. It was pointed out, correctly I think, that he would not have returned to work after booking Mrs Phelps into the hospital and taking her home, given his need to collect their daughter from school. I think that he was mistaken in his recollection that he was told those things on his return home from work, but that is not a mistake of any consequence. As he observed, he could have been walking the dog. I do not doubt his honesty.

71 Several other factual differences were pointed to in the evidence of Mr and Mrs Phelps and Dr Cossetto, for example whether Dr Cossetto had treated a polio sufferer before, but any resolution of them would not assist me in deciding the principal issues arising.

72 I am satisfied that someone, probably at the request directly or indirectly of Dr Cossetto, telephoned Mrs Phelps on Thursday 28 May after she had been booked into hospital to tell her to stop taking Warfarin that night. That message would have been unnecessary if Dr Cossetto had told Mrs Phelps during their consultation of the need to adjust her anticoagulant therapy. The message had to be sent later on because Dr Cossetto was unsuccessful during the consultation in his attempt to speak to Dr Ryan.

73 The evidence does not enable me to decide when or how Mrs Phelps was told to enter hospital on 31 May instead of 2 June. It may have been by the same telephone call. Mrs Phelps might easily have forgotten being told that as well. I am satisfied that somebody told her after she and Mr Phelps left Dr Cossetto’s rooms.

74 I do not accept the submission made on behalf of Dr Cossetto that the admitted fact that neither Mrs nor Mr Phelps asked questions supports a conclusion that Dr Cossetto gave an appropriate warning. It seems to me to be equally consistent with the opposite conclusion.

75 Dr Cossetto did not record in his notes the need for anticoagulant therapy management and the risk of stroke. It was a feature that made Mrs Phelps an extraordinary patient, presenting more than the usual risks of surgery. I think that he would probably have made a note if he had discussed the topic. I would also have expected him to say something about the topic in his letter to Dr Parker.

76 I do not think that Dr Cossetto said anything to Mrs Phelps about the risk of stroke. He did not say anything about the risk of infection other than the risk that ordinarily attends surgery. I think that he was obliged, having been told that Mrs Phelps had an artificial mitral valve and was on anticoagulant therapy and that Dr Ryan had the care of her, to make enquiries of Dr Ryan and fully inform himself about her relevant medical history before advising her, or at least before finally advising her, and inviting her to sign the form of request. I think that in failing to do so he fell short of the standard of reasonable care and skill of the ordinary orthopaedic surgeon exercising and professing to have that skill. That failure resulted in his failure to inform her about the risk of stroke or about the risk of contracting subacute bacterial endocarditis.

77 It would be no answer to claim that Mrs Phelps’ experience of Warfarin and Persantin therapy and the stroke of 1996 effectively informed her of the risk of stroke. She did know from what Dr Ryan had told her and from what had happened to her that maintenance of her anticoagulant therapy could not eliminate the risk of stroke. She did not know, however, that the proposed surgery itself gave rise to a risk of stroke in addition to the risk involved in stopping the anticoagulant drip. Dr Ryan was asked about this in cross-examination. Having considered the various conditions from which Mrs Phelps was suffering at the time and having said that a person with hypertension was at a greater risk of having perioperative stroke than a person who was not, he gave this evidence -

Q. And you know, don’t you, that with her background, if she had surgery she had a greater risk of stroke than if she didn’t have surgery?
A. Yes, absolutely.
Q. And that greater risk of stroke arose, in part, because of the Warfarin therapy, that is manipulation, is that not so?
A. Yes.
Q. And also, in part, because she had all these other problems?
A. No, it is actually because she is having surgery. Surgery is a prothrombotic event. It is an event which makes you more likely to clot. It is the surgery itself and the manipulation of the Warfarin are the only things that were changed from what she is like every day.
…
Q. As I understand, what you are saying is this: That a person with those conditions – and I am leaving aside the mitral valve – was at greater risk of stroke than a person without them, regardless of surgery?
A. That’s correct.
Q. And again leaving the mitral valve issue aside, if she had surgery with those conditions, the risk of stroke was increased?
A. That’s correct.
Q. In other words, I think as you have already said, people who have hypertension, perioperatively, are at greater risk of stroke than people who don’t?
A. That’s correct.
Q. So if one was intending to provide a complete warning or indication of risk factors for somebody undergoing surgery with all of these conditions, including the mitral valve conditions, one would need to tell them, wouldn’t one, “Not only are you at risk of stroke because of the manipulation of the Warfarin therapy but you are also at an increased risk of stroke because of your other conditions”?
A. If one were warning them, yes.
Q. That is what one would need to do?
A. Yes.
Q. And anything less would not be an adequate warning in your opinion?
A. Yes.

78 Nobody explained these matters to Mrs Phelps before she entered hospital. Nobody explained how the circumstances giving rise to the risk of stroke perioperatively differed from those which obtained when Dr Ryan spoke to Mrs Phelps after her first stroke. It was Dr Cossetto’s responsibility to do so.

79 No explanation was given to Mrs Phelps about what was going to happen until she was in hospital with her anticoagulant regime already under change. The anaesthetist who attended her was Dr Hughes. He gave evidence. He saw her twice, once on the evening of 31 May and once on the following evening. He was able by reading hospital records to know that on the first occasion he inserted an cannula by which the Heparin drip was to be administered. He was able by the same means to say that on 1 June he took a history from Mrs Phelps, noting and recording the several disabilities or diseases from which she suffered and the drugs she had taken in recent times. He said, and I accept, that he would have been able to observe for himself that Mrs Phelps was suffering from the effects of polio and that she had had chest surgery. He gave directions that the administration of Heparin was to cease at 9 am on 2 June and that the cannula was to remain in place.

80 Dr Hughes had no recollection and no note of anything he said to Mrs Phelps on either occasion and I conclude that he did not remember her. That is not surprising in view of the large number of patients he is accustomed to seeing. He gave evidence of his practice in speaking to patients on occasions like that on which he saw Mrs Phelps. He would on 31 May, he said, have spoken to her about the change of medication and why he was inserting the cannula. He would not have spoken about the risks of surgery.

81 On 1 June, having observed Mrs Phelps, taken her history and learned about the mitral valve replacement, he would have examined her chest and heart. He would have attempted to explain anything which related to his involvement in the operation. He said that it would not have taken place until he was satisfied that the patient had been seen by the surgeon and that at the time she was fully aware of the operation which she was about to have carried out on her. He said that he had had cause to ask patients at different times whether they had thought clearly about having operations or whether they needed to have those operations. He said that with anyone having significant medical problems he made a definite point of indicating to them that they were more at risk because of those problems. He believed that he would have spoken to Mrs Phelps about the risk of stroke.

82 Assuming that something of the kind happened in Mrs Phelps’ case, Dr Hughes would have been able to satisfy himself that Mrs Phelps had been seen by the surgeon. He would also have been aware that Mrs Phelps had signed a request for the surgical operation which included an express acceptance of the risks associated with the operation. He would not have known that Dr Cossetto had never explained these risks. Whatever he said would have been said upon the false assumption that he had. I accept it as possible that Dr Hughes told Mrs Phelps about the risk of stroke, though it is not a matter he was likely to lay any emphasis on in view of what must have been his understanding of the explanation already given by Dr Cossetto.

83 Mrs Phelps’ evidence about her conversation with Dr Hughes was that he asked her whether she had thought clearly about having the operation. I bear in mind Mrs Phelps’ difficulty in recalling anything that was said, and obviously Dr Hughes said more than that, but the evidence is some indication of the impression that whatever Dr Hughes said had upon her. She understood him to be asking her whether she had seriously thought about having the operation. Obviously she had over the preceding days, particularly at the conclusion of her consultation with Dr Cossetto.

84 It is necessary for any warning relied on by Dr Cossetto to have been effective. That requires a consideration not only of what was said, about which there is some doubt, but about the circumstances in which it was said. A warning even in appropriate terms will be insufficient if given in circumstances in which the person warned is unlikely to be able to appreciate its significance or act upon it. Assuming that Dr Hughes said all the things he said, he did not say them until Mrs Phelps had been in hospital for twenty-four hours and more and subject to a detailed procedure preparing her for surgery. Mrs Phelps was hardly likely at that stage to be in a frame of mind which would enable her to consider advice significantly different from that which her surgeon had already given her and on the basis of which she had consented to surgery. If any such warning were to have any effect it would have had, I think, to be made clear to Mrs Phelps that what she was now being told was significantly different from what she had already been told by Dr Cossetto on 28 May and by Dr Ryan in 1996. No such thing happened. The only relevant thing that Mrs Phelps had been told was what Dr Ryan had said after the 1996 stroke. That related only to her general susceptibility to stroke under her anticoagulant medication and not to the risks resulting from cessation of that medication in conjunction with surgery. Since 1996 she had had no trouble with clotting and was likely to regard the problem as having been brought under control. She was not likely unless told to realise that cessation of her medication together with surgery produced a risk greater than that with which she had been living since her first stroke.

85 Whatever Dr Hughes said gave Mrs Phelps no realistic choice in my opinion, such were the circumstances in which she found herself on 1 June.

86 The remaining grounds in the case against Dr Cossetto, namely failing to inform Mrs Phelps that the lump need not be removed and that the discomfort could be alleviated by modification of the calliper cuff, failing to refer her to a prosthetist to obtain a better fitting calliper, performing an unnecessary operation and advising her to undergo an operation with major risks when he knew or ought to have known that the lump was benign, may be considered together because they all raise the question of the availability of a non-surgical solution to Mrs Phelps’ problem. Mrs Phelps must prove that Dr Cossetto’s failure to warn her caused the harm she suffered from the stroke. It is not enough for her to prove that she would if appropriately advised have seen an orthotist about making a new calliper or modifying her existing one unless she also proves that the problem of the lipoma would probably have been solved by that means.

87 This last question is also relevant to Mrs Phelps’ case on the failure to warn of the risk of stroke because her evidence that she would not have had surgery if given that advice has to be tested by considering all the circumstances in which she would probably have found herself if able to make a fully informed choice. A choice between surgery and having her calliper modified would be one thing but a choice between surgery and indefinite confinement to a wheelchair, which was the only other practical way of managing the problem, might be quite another.

88 In practice two questions which arise, namely whether Dr Cossetto was in breach of his duty in not advising Mrs Phelps of this non-surgical alternative and whether the lipoma could probably have been managed by modification of the calliper without surgery, can be considered and answered together.

89 Dr Cossetto was asked what he said to Mrs Phelps about non-operative alternatives. His answer was that he said -

… that there were non-operative treatment measures available. However, in my opinion the best course of action was to remove the lump.

and that that was all he said.

90 The reason why Dr Cossetto did not advise Mrs Phelps that as an alternative to surgery she could see an orthotist about modifying the calliper was that the position of the lipoma made surgery the only appropriate course.

91 The probable position of the lipoma is important. There was no evidence about its aetiology. To my mind neither its existence nor its soreness implies that it was in any particular part of the thigh other than one which brought it into contact with the cuff of the calliper during use.

92 Dr Cossetto gave this evidence -

Q. Did you observe where the lump was in relation to the gluteal fold?
A. It was above the gluteal fold.
Q. Where was it in relation to the ischial tuberosity?
A. It was between the ischial tuberosity and the weight-bearing portion of the calliper.

93 In cross-examination there were these questions and answers -

Q. And it was below, was it not, the rim of the calliper?
A. It was not below the rim of the calliper.
Q. Where, do you say?
A. It was at the weight-bearing portion of the top of the calliper.

94 Mrs Phelps described the position of the lump as “under my cuff of the calliper”.

95 Mr Phelps described it as being below the cuff of the calliper, about twenty-five millimetres below the gluteal fold and about twenty-five millimetres below the top of the cuff. He demonstrated its position by reference to a discoloured portion of the cuff of the calliper Mrs Phelps had been wearing at the time.

96 After her discharge from Nowra Community Hospital Mrs Phelps entered the Shoalhaven Memorial Hospital where she came under the care of Dr Jenssen, a rehabilitation physician. The clinical notes produced from the records of the Illawarra Area Health Service include notes and sketches made by Dr Jenssen. On 19 April 2000 he made a sketch denoting a scar resulting from the removal of the lipoma, the gluteal fold and a small ulcer. The scar is shown as vertical, which all the evidence shows to be correct, and wholly above the gluteal fold. The ulcer is shown to be below the gluteal fold and a little to the left of the axis of the scar.

97 A sketch made on 1 June 2000 shows the position of the ulcer but not of the scar.

98 A third sketch, drawn on 28 September 2000 shows the ulcer and the scar and the gluteal fold. The scar is shown as horizontal and wholly below the gluteal fold. The ulcer, described as a sinus, is shown in approximately the same position as in the other sketches.

99 The notes accompanying the sketches of 19 April and 28 September refer to ointment such as might be applied to such an ulcer or sinus. I think, because of those references and the imprecise manner in which the scar has been dealt with, where it has been dealt with, that when he did the sketches Dr Jenssen was more concerned with the ulcer than the scar. Although the evidence shows that the wound dehisced twice while Mrs Phelps was in hospital, it ultimately healed well and the condition of the scar itself does not seem to have been any particular concern to Dr Jenssen. The sketches, therefore, give no reliable indication of the position of the scar. Neither does the position of the ulcer, which was unconnected with the lipoma and which first appeared after the operation.

100 Dr Jenssen wrote a report on 6 March 2001 describing the position of the lipoma as “over her left ischial tuberosity region”. On 25 February 2002 he made a correction in the following terms -

In regards to my report dated the 6th March 2001 I wish to make a correction. I did not see her lipoma before it was excised and cannot comment on the exact site of her lipoma. Her lipoma was not as I understand actually over her left ischial tuberosity. When I saw she had (near a small scar) a very small superficial ulcer about 1 or 2 mm in diameter (with some mild surrounding erythema) distal to her left ischial tuberosity, being over her proximal posterio-lateral thigh about one or two centimetres distal to her left gluteal fold (otherwise known as gluteal sulcus).

101 Dr Jenssen gave evidence. During an adjournment he was given an opportunity to examine Mrs Phelps and to make a sketch of the position of the scar. It is shown as extending above and below the gluteal fold. The greater part of it, perhaps sixty percent, is below. The portion above the gluteal fold is described as “stretch of scar”. The axis of the scar is shown as 1.5 centimetres to the left of the ischial tuberosity. The top of the stretched part of the scar ends one centimetre below the level of the ischial tuberosity. The total length of scar, original and stretched, is shown as 3.5 centimetres.

102 Dr Jenssen explained that before making the sketch he had spoken to Mr Phelps, who had told him that his interpretation of the scar was that the scar above the gluteal fold was a stretch of the original scar. Asked about his own opinion, Dr Jenssen could not say how much of the scar represented stretch and how much original scar. He based his interpretation on Mr Phelps’ comments but the diagram he put forward, he said, was consistent with what he remembered. He noted that Mrs Phelps had put on weight since the time of these events and observed that the scar may have stretched further.

103 He was asked to comment on the relation between the probable position of the lipoma and the position where the rim of the calliper cuff would fit. Referring to the old calliper, the one Mrs Phelps was wearing at the time, he expressed the opinion that the rim would be above the scar site and the point where the lipoma had been excised.

104 I do not think that the fact that Dr Jenssen relied in part upon what he had been told by Mr Phelps affects the reliability of his evidence.

105 Dr Faux gave evidence. He examined Mrs Phelps on 22 January 2002. The scar was three centimetres below the ischial tuberosity.

106 According to the pathology report on the excised material, the ellipse of skin removed by Dr Cossetto was about 5.3 centimetres long. The evidence of Dr Cossetto was that that would produce a scar about six centimetres long.

107 It seems reasonable to suppose that the continual pressure imparted by the cuff of the calliper to the scar site might affect the appearance of the scar. Such pressure, applied every day for substantial periods of time, might make the scar stretch. Dr Jenssen accepts that this may have happened. There was no evidence whether it would make the position of the scar itself move relative to the underlying tissue, though Dr Faux observed that a surgical scar resulting from the excision of a lump does not always overlie the site of the lump. There was no evidence whether the exertion of pressure or any other cause might make the scar contract. There was no explanation how a scar originally six or almost six centimetres long might come after four years to be only 3.5 centimetres long.

108 The preponderance of the evidence shows that the scar is below the gluteal fold and below the ischial tuberosity. No precise finding can be made about its exact length but its position provides some indication of where the lipoma was.

109 In my opinion there is a general correspondence between the evidence of Mr Phelps, Mrs Phelps, Dr Jenssen and Dr Faux that leads me to the conclusion that the lipoma must have been below the gluteal fold and the ischial tuberosity. The sketch drawn by Dr Faux during his evidence shows another important feature as well, namely that the lateral position of the scar is 1.5 centimetres to the left of the ischial tuberosity.

110 The conclusive nature of Dr Cossetto’s evidence about the position of the lipoma and his imperfect recollection of events that happened during the consultation cause me to doubt the reliability of his evidence in this respect. He made no note of the position of the lipoma. I do not think that his evidence can stand in the face of that which I have summarised about the probable position of the lipoma.

111 I think that the person likely to have the best memory of the position of the lipoma is Mr Phelps. I conclude from his evidence and from that of Dr Faux that the lipoma was probably about 2.5 centimetres below the gluteal fold, and the ischial tuberosity, and about 1.5 centimetres to the left of the ischial tuberosity.

112 Dr Faux gave evidence about the likelihood of a successful modification of the calliper. It was his opinion that unless the lipoma lay over the ischial tuberosity the redesign of the calliper with a wider ischial seat would most likely have relieved the area of friction. He explained that the strategy would have been to refashion the entire cuff by widening and lengthening it and by widening the ischial seat. A cuff could be fashioned so as to stand proud of a pressured area. He explained that modifying the cuff would be a dynamic process carried out by collaboration between the patient, the orthotist and a rehabilitation physician.

113 He said that the general practice was to try but that success could not be guaranteed. Many attempts might be needed before success was achieved, involving pain and continuing difficulties with mobility. A degree of persistence on the part of the patient would be needed.

114 Mr Wright, an orthotist, gave evidence about reshaping and repadding callipers to relieve pressure. He had seen Mrs Phelps only once in order to give an opinion for this case. He had not made or modified her calliper. He spoke generally of the ways in which the size and shape of callipers could be modified. He spoke of cutting out a portion of a cuff and padding with soft material in order to alleviate pressure. He thought that an attempt could have been made to adjust Mrs Phelps’ calliper so as to render surgery unnecessary. He was unable to say whether the attempt would have succeeded.

115 Dr Jenssen observed that Mrs Phelps had been provided with a new calliper since the events of June 1998 and commented that the rim was flanged or curved outwards rather than being vertical like the old one, sloping probably at forty-five degrees for a small section, allowing some distribution of force and weight through a greater area. He also observed that there was a greater area of leather around the thigh and around the ischial tuberosity area to distribute the weight better and provide more comfort and less localised pressure, particularly over the ischial tuberosity. That seemed to me to exemplify the things Dr Faux and Mr Wright were saying could be done.

116 The maker of the new calliper was Mr Reed. He was not called to give evidence and it was submitted that I should infer that his evidence would not have assisted Mrs Phelps. I reject the submission. It is well established through the evidence of Mrs Phelps and Dr Jenssen that Mr Reed made first a modified cuff, which gave Mrs Phelps some relief, and then the new calliper, which was successful. There was no need to call Mr Reed to give evidence.

117 There is an organisation in Sydney called The Northcott Society which provides callipers and other support and services for disabled people such as Mrs Phelps. She has been visiting the premises of The Northcott Society regularly for many years. Those visits continued through 1997 and 1998. She said that on such a visit the prosthetist would check to see that her calliper was working correctly.

118 An invoice produced from the records of The Northcott Society dated 31 October 1997 shows that on that day the Society accepted an order from Mrs Phelps for the repair of her calliper by fitting a new steel cuff. The cuff was sent to her by courier on 6 November 1997.

119 A further invoice, dated 18 May 1998, just a few days before the consultation with Dr Cossetto, records the receipt of an order to repair a calliper by making and fitting leather joint guards, replacing elastic and replacing Velcro on the cuff top.

120 Mrs Phelps was unable to recall what was discussed at any of her visits to The Northcott Society.

121 It was submitted on behalf of the defendants that the Court ought to infer from the invoice of 18 May 1998 that Mrs Phelps would have been examined on that day in order to ensure that her calliper was continuing to fit her. By that time the lipoma was becoming a real problem. The orthotist would have noticed it and would have suggested modification of the calliper if in the orthotist’s opinion there was a reasonable prospect that Mrs Phelps’ discomfort would be thereby alleviated. The fact that no such work was invoiced, combined with the reservations of Dr Faux and Mr Wright which I have summarised, tended to show that there was no reasonable prospect of a solution of the problem by non-surgical means.

122 I would not infer from The Northcott Society invoices that anyone had considered what could be done to relieve Mrs Phelps’ discomfort but had concluded that any attempt at modification was not worth making. It is not only that to draw such an inference would be to draw a long bow. It would be a conclusion quite against what I understand from the evidence of Dr Faux and Mr Wright is ordinarily done to try to assist patients whose callipers are producing discomfort. If such a matter had been raised some modification would have been proposed and tested. Mrs Phelps would have been vitally involved. Documents would have been created. Mrs Phelps would probably have remembered the part she played. In any case, Dr Parker’s notes show that he had referred Mrs Phelps to a surgeon, Dr Jones, on 8 May. Mrs Phelps would have given that information to the orthotist if the subject of the difficulty arising from the lipoma had been raised. The orthotist would not have presumed that Dr Jones would advise against surgery.

123 Mrs Phelps is a remarkable person. In spite of her serious medical history and substantial disabilities and following upon a considerable number of personal setbacks in her life she continues to try to lead a useful life which is as active as it can be in the circumstances. Mr Phelps describes her as a very determined person, without doubt the toughest person he knows. I think that she is extraordinarily courageous. If she had had the opportunity to collaborate with an orthotist and a rehabilitation physician to try to fashion a calliper cuff which might alleviate her discomfort I am confident that she would have done so. She would have brought the necessary persistence to bear. She would have put up with the pain and the interference with her mobility from time to time.

124 I think that the modification of the calliper cuff was a realistic alternative to surgery which ought to have been recommended and tried. I think that it would probably have succeeded, making surgery unnecessary.

125 I accept that if she had been told about the risks of stroke or subacute bacterial endocarditis Mrs Phelps would not have had the surgery done. She was a seriously disabled woman who had more reason than most to fear the effects of stroke. She had suffered a mild stroke in 1996. She was acutely aware because of her various afflictions, most particularly the effects upon her of polio, of the desirability of avoiding any risk of compromising her mobility. Even a small effect on her mobility, which might not grossly disable an ordinary healthy person, might be for her the last straw.

126 I accept that if he had been told about the risk of stroke Mr Phelps would not have encouraged Mrs Phelps to have surgery but would have asked her to consider alternatives.

127 I accept that if she had been told that modification of her calliper ought to be considered as an alternative to surgery Mrs Phelps would have chosen that alternative and that she would probably have obtained thereby such relief as would make surgery unnecessary.

128 Mrs Phelps is therefore entitled to succeed against Dr Cossetto for his failure to warn of the risk of stroke and to advise about modifying the calliper.

129 Mrs Phelps did not contract subacute bacterial endocarditis and has not grounded her action on the failure to inform her about the risk that she might so there is no need to consider that matter further.

130 There is no substance in Mrs Phelps’ claim on account of any failure to advise that the risk of stroke was more serious than the risk of bleeding from the operative wound. There never was any contemplation that surgery would be carried out whilst there was any anticoagulant agent in Mrs Phelps’ blood. In practice there was no risk of bleeding above the ordinary risks of surgery.

The case against Dr Ryan

131 Dr Ryan knew that Dr Cossetto had seen Mrs Phelps and was advising her about excising the lipoma. Dr Ryan advised Dr Cossetto about the need to control the risk of bleeding by manipulating the anticoagulant therapy and about the risk of subacute bacterial endocarditis with its consequent need for antibiotic prophylaxis. He was entitled to assume that Dr Cossetto would explain these risks as well as the ordinary risks of surgery.

132 Later on he learned that Mrs Phelps had elected to have surgery. He was entitled to assume that she had executed a form of request incorporating an acknowledgement and acceptance of risk. The form used was one generally used at Nowra Community Hospital and I think that he would have been familiar with it.

133 Because he was entitled to expect Dr Cossetto to give appropriate advice so as to permit Mrs Phelps to make an informed choice whether or not to have surgery Dr Ryan was not obliged in my view to explain the alternatives to surgery. He was not obligated to inform Mrs Phelps of the relative risks of stroke and bleeding, since there was never any contemplation that the operation would be carried out while there was any anticoagulant agent in her blood.

134 Dr Ryan was therefore under no obligation to provide Mrs Phelps with any of the information pleaded.

135 In my view Dr Ryan was under no obligation to inquire about the nature of the lipoma or to know whether or not it was benign. Those were matters with which Dr Cossetto was concerned and Dr Ryan was justified in leaving to him the duty of inquiring and appropriately informing and advising.

136 In my opinion none of the pleaded breaches of duty on the part of Dr Ryan has been established.

Conclusion

137 There will be a verdict for Mrs Phelps against Dr Cossetto in the amount agreed. There will be a verdict for Dr Ryan. Counsel may bring in short minutes giving effect to these orders and providing for costs.

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Last Modified: 10/03/2002