Piwonski v Knight No. Scciv-00-151

PIWONSKI v KNIGHT
[2002] SASC 310
Civil

PERRY J.
General Background
The Witnesses and Findings as to Credit
(a)          The Plaintiff
(b)          Ms Jermakow
(c)          Medical Experts
(d)          The Defendant
Questions of Law
The Aortic Valve and its Replacement
Preliminaries to the Operation
(a)          Developments in 1996
(b)          Pre-operative Consultations with Mr Knight
(i).... 4 December 1996
(ii)... 19 March 1997
(c)          The Final Phase
The Operation
Advice of Risk
The Remaining Allegations of Negligence
(a)          Use of transoesophageal echocardiogram(Statement of Claim paras 15.2 and 15.3)
(b)          Use of a CUSA(Statement of Claim, para 15.4)
(c)          Failure to use a transatrial ventricular ventingcannula and alleged failure to thoroughlyvent air and calcium debris from the heart(Statement of Claim, paras 15.5 and 15.9)
(d)          Failure to use continuous or intermittentcardioplegia infusion(Statement of Claim para 15.6)
(e)          Failure to use thermistor to monitor theheart muscle temperature(Statement of Claim, para 15.7)
(f)          Failure to place surgical gauze below the valveto catch any loose fragment of calcium(Statement of Claim, para 15.8)
(g)          Releasing the clamps when there was a likelihoodof calcium debris still being present(Statement of Claim, para 15.10)
(h)          Alleged failure to take adequate precautions toeliminatethe risk of the plaintiff suffering stroke inview of the heavy calcification of the valve(Statement of Claim, para 15.1)
Conclusions
On 17 April 1997 the defendant, a heart surgeon, carried out an aortic valve replacement operation on the plaintiff at Ashford Community Hospital. In the course of the operation the plaintiff suffered a stroke which has left him severely and permanently disabled. He claims damages against the defendant, alleging either that he failed properly to advise the plaintiff of the risks of the operation, or performed it negligently, or both.
The trial extended over 27 sitting days. A number of medical experts were called, both from Australia and abroad.
The case necessitated a close consideration of the surgical techniques involved in the operative procedure which the plaintiff underwent.
It will be seen that ultimately I conclude that the plaintiff has failed to make out his case. More particularly, I find that alleged shortcomings in the surgical techniques adopted by the defendant are no more than a manifestation of the fact that there are differences in the manner in which competent heart surgeons perform the operation. Furthermore, it will be seen that I find that the plaintiff was adequately warned of the risks associated with the procedure.
In the narration which follows I do not pause to deal with every conflict in the evidence, but it may be assumed that where there is conflict I have preferred the evidence which supports my findings.
GENERAL BACKGROUND
The plaintiff was born in Poland on 30 January 1929. After serving in the Polish Army he migrated to Australia in 1950, whereupon he commenced work with the South Australian Railways. His employment with the railways included work as a train dispatcher, guard and ticket collector. He retired from the railways at the age of 60 in 1989.
The plaintiff currently lives with Jane Jermakow, a friend he met in 1970. She moved into his house in Netley as a tenant in 1982. She is now his primary carer.
The plaintiff gave evidence that before the operation, he led an active life which, apart from his work, was mainly centred on activities around his home at Netley. He did much work in and around the house, including painting, concreting, tiling and gardening. He was something of a perfectionist, and took great pride in these activities, much of which he performed without assistance.
He believed that he was in good health until he became aware of a problem with his heart which came to his attention a little over a year before the operation. He denied that he had before then suffered any serious illnesses. The first time he had been in hospital was when he was admitted for the purposes of the heart surgery in question.
THE WITNESSES AND FINDINGS AS TO CREDIT
Apart from his own evidence, the plaintiff called Ms Jermakow, and four expert witnesses. He also called two neighbours whose evidence confirmed the extent of the plaintiff’s handiwork around the house before the operation.
The plaintiff’s experts were Professor George Green, formerly professor of clinical surgery at Columbia University, New York; Dr Thomas Berger, formerly associate consulting professor of surgery at Duke University Medical Centre, Durham, North Carolina, and currently a surgical consultant to Parkridge Hospital, Fletcher, North Carolina; Mr Joseph Leverment, currently consultant cardiothoracic surgeon at United University Hospital, Leicester, UK; and Dr Ronald Lehman, a cardiologist who practises in Adelaide.
The defendant gave evidence, and called a number of medical experts.
They were Professor James Tatoulis, associate professor of surgery at the University of Melbourne and director of cardiothoracic surgery at the Royal Melbourne Hospital; Professor Brian Buxton, director of cardiac surgery at the Austin and Repatriation Medical Centre of the University of Melbourne and director of cardiac surgery at Epworth Hospital; Professor John Horowitz, currently professor of cardiology at the University of Adelaide and director of cardiology of the North-Western Adelaide Health Service; Dr Bronte Ayres, a cardiologist who practises at Ashford Hospital; Mr John Stubberfield, director of cardiothoracic surgery at Royal Adelaide Hospital; Dr John Sheppard, a specialist cardiologist in private practice in Adelaide; Mr Iain Ross, a cardiothoracic surgeon practising in Adelaide; Dr Reece Jennings, a general practitioner; and Dr Yi-An Neoh who at the time of the operation in question was employed by Ashford Hospital as a surgical assistant. Dr Neoh assisted Mr Knight in the performance of the operation in question.
(a) The Plaintiff
So far as the plaintiff’s evidence is concerned, he demonstrated a good grasp of English, and appeared to have a good recall of dates. However, his presentation was florid, and there were times when he showed signs of paranoia. He said more than once words to the effect that the doctors (at a post-operative rehabilitation hospital) “would finish me off”;[1] “that the doctors [wanted] to load me up with unnecessary drugs”;[2] “they were drugs for keeping my mouth shut to prevent me calling for a doctor”;[3] and “I don’t want to be finished off in a few months time like some people are finished off”.[4]
[1]    T244.
[2]    T356.
[3]    T243.
[4]    T268.
There were times when he exaggerated. For example, he seemed overly concerned to create the impression that he was in perfect health before the operation, which, on the medical evidence, clearly was not so.
There were times when he showed some signs of confusion in his answers. I do not hold that against him, as this appeared to be related to a degree of fatigue which became more pronounced during the afternoons of the days upon which he gave evidence.
The plaintiff remains bitter at the treatment he has received and the outcome of it. While it is understandable that he should harbour a sense of grievance, I formed the distinct impression that this had played on his mind with the result that his answers to a number of questions in cross-examination were coloured by feelings of antagonism, directed particularly towards but not limited to the defendant.
On one or two occasions he described the medical profession as motivated by a desire to make money out of him,[5] and he was fiercely critical of some of the notes and letters put to him which embodied opinions or statements as to his pre-operative medical condition. If he disagreed with any of the comments which had been made in that respect, his responses to questioning tended to be irrational and at times abusive.
[5] T312-313, T397.
At the end of the day, I reached the view that I could not rely upon his evidence in critical areas where there were differences between his evidence and that of the defendant and other witnesses. On those issues, I have preferred the evidence of the defendant and the defendant’s witnesses where that evidence conflicts with that of the plaintiff. I do so, not on the basis that the plaintiff has necessarily been untruthful, but I believe that his emotional state resulting from the unfortunate complications which followed the surgery in question has rendered much of his evidence unreliable.
Naturally enough, the plaintiff was unable to comment on technical medical matters. But my unwillingness to accept his evidence as reliable, and my preference of the evidence of the defendant where it conflicts with that of the plaintiff, is of most significance with respect to one issue in particular. That is the conflicting evidence as to the nature of the warning given to the plaintiff by the defendant as to the risks associated with the operation, and the plaintiff’s evidence that he would not have gone ahead with the operation had he been adequately warned of the risk. The plaintiff’s evidence as to those matters was clearly coloured by the condition in which he now finds himself.
(b) Ms Jermakow
The evidence of the witness Ms Jermakow was, in the main, confined to matters bearing on the question of damages, and is therefore largely irrelevant to the issue of liability upon which I dispose of the case. She did, however, give evidence of some discussions with doctors at the hospital shortly before and after the operation. Evidence by her of a remark which she attributed to Dr Neoh shortly after the operation had been completed may have been relevant to the issue of liability, but as will be seen, I find that evidence to be inadmissible, if in fact it was Dr Neoh who spoke to her.
In those circumstances it is unnecessary for me to make any further observations as to her credit.
(c) Medical Experts
All of the medical practitioners who gave evidence, either as expert witnesses giving opinions as to the operative procedures or by reference to their treatment of the plaintiff from time to time, were highly qualified in their respective fields of expertise. With the exception of Dr Berger, I am satisfied that they gave their evidence impartially and were endeavouring to assist the Court as best they could. The differences between them which emerged, particularly as to the techniques and procedures adopted by the defendant in performing the surgery in question, were largely a product of the fact that the witnesses came from different training regimes and had, to a certain extent at least, developed individual preferences as to the choice to be made between different methods by which various aspects of the operation could properly be performed.
Heart surgery is an international rather than a local discipline. The essential nature of the operation is largely the same whoever the surgeon might be. However, it became obvious as the case progressed that different schools of thought have grown up as to the appropriateness of certain available techniques, and different views are held as to the desirability of performing some aspects of the operation in the manner undertaken by the defendant.
Some of the differences between the surgeons who gave evidence seemed to be a product of the fact that heart surgery is an evolving specialty. There was evidence that the first aortic valve replacement operation was carried out in the USA, in about 1960.[6] There have been a number of changes and improvements in the manner in which it is performed and in the equipment available to assist surgeons carrying out the procedures since then.
[6] T468.
Against that background, it is easy to understand how opinions genuinely held by competent surgeons as to how to go about the operation, differ. In part this is a reflection of the fact that the proponent of a particular approach to a given aspect of the surgery may well have performed the bulk of the surgery upon which his or her experience is based, at an earlier rather than a later stage in the evolution of the relevant techniques.
In that respect it is not possible to draw any sharp dividing line between the experience and expertise of the surgeons called on behalf of the plaintiff on the one hand and those called on behalf of the defendant on the other. But as was pointed out by Mr Trim QC, counsel for the defendant, of the plaintiff’s experts, Professor Green ceased active practice in 1994, and Mr Leverment, while still active as a surgeon, underwent his early training with the heart surgery pioneer, Professor Christiaan Barnard. While Dr Berger was still in practice until 1998, it will be seen that I do not accept his evidence for other reasons.
On the other hand, Professor Tatoulis, Professor Buxton, Mr Stubberfield, Mr Ross and Mr Knight himself, are not only currently in active practice as surgeons operating in this area, but they appeared to me to demonstrate in their evidence a greater awareness of current techniques generally regarded as best international practice. By “current”, I refer to 1997 when the operation in question was performed.
Further, I accept the defendant’s submission that what Professor Green, Dr Berger and Mr Leverment emphatically asserted to be certain surgical techniques and equipment which it was mandatory for a competent surgeon in the position of Mr Knight to use, were in fact:
·either an outdated technique not currently in use by a significant body of reputable surgeons; and/or
·simply one technique within a broad spectrum of techniques, any one of which is an acceptable means of achieving the desired result.
Given my view that, with the possible exception of Dr Berger, all of the expert witnesses were adequately qualified to express the opinions which they proffered, and were genuinely endeavouring to assist the Court as independent witnesses, it is unnecessary to go into detail as to the particular impressions created by each of them in giving their evidence. That I regarded some as more impressive than others was largely a matter of the impression gained by me from the manner in which they set out their reports and from the nature of their examination and cross-examination while they were in the witness box, which in the case of the principal expert witnesses, was for lengthy periods of time.
It is sufficient to add that, generally speaking, I have resolved conflicts in the expert evidence by preferring the evidence of Professor Tatoulis, Professor Buxton, Mr Stubberfield, Mr Ross and of the defendant himself where their evidence is in conflict with evidence given by Professor Green, Dr Berger and Mr Leverment.
The only expert witness whose impartiality and expertise I had reason to doubt was Dr Berger.
Mr Trim QC launched a sustained attack upon Dr Berger’s credit, largely based on evidence of the circumstances in which he had resigned from his last employment in the United States, and doubts as to whether or not he had been re-certified as a surgeon under the appropriate regulatory regime while practising as such.[7]
[7] See D52.
Since ceasing practice as a surgeon in 1998, Dr Berger has developed a business as a professional expert witness. He advertises his availability on the internet. He charges a substantial fee of $US5,000 per day for giving evidence in court in addition to his fee for preparing a report. As part of his business he offers to secure the services of other expert witnesses, and on occasions takes a percentage of their fees.[8]
[8] T893.
After hearing his evidence, I formed the view that I would not be prepared to accept his evidence on the critical issues unless it was supported by other credible evidence. However, that conclusion is, in the circumstances, of no great moment, given that, generally speaking, I have in any event preferred the expert evidence adduced on behalf of the defendant.
(d) The Defendant
It remains only to make some comments about the evidence of the defendant himself.
The defendant is a highly qualified and very experienced heart surgeon. His present positions are associate professor of surgery at Flinders University; director of cardiac services at Flinders Medical Centre; and senior visiting cardiothoracic surgeon at Flinders Medical Centre, Repatriation General Hospital, the Queen Elizabeth Hospital, Flinders Private Hospital and Ashford Community Hospital.
He is vice-president of the Australasian Society of Cardiac and Thoracic Surgeons and a member of the boards and governing committees of a number of professional bodies associated with cardiac and thoracic surgery.
The defendant has had a good deal of overseas experience, and has previously held appointments as a clinical fellow in surgery at the Harvard Medical School (1985-1987), and assistant professor of surgery at Queens University, Kingston, Ontario, Canada (1987-1992). At the same time as his appointment at Queens University, he held the position of surgeon in charge of cardiac surgery at Kingston General Hospital and Hotel Dieu Hospital at Kingston, Ontario.
He is registered as a cardiac surgeon in Australia, Britain, Canada and the USA.
The defendant is either a fellow or a member of a number of learned societies in his discipline. He has published widely in the field of cardiac surgery in refereed international journals.
Cardiac surgery is a highly specialised area of practice. There are only five cardiac surgeons, including the defendant, actively in practice in Adelaide. There are of the order of eighty throughout Australia.
It is an international discipline, and the techniques and procedures associated with it are publicised and debated by cardiac surgeons throughout the developed countries of the world. Generally speaking, the performance of cardiac surgery throughout Australia is in accordance with international standards.
Notwithstanding that, as I have said, different surgeons, both in Australia and abroad, may hold different views as to how various aspects of the operation are carried out.
The defendant explained that while in training as a cardiac surgeon, it was mandatory to follow the precise techniques of the instructor.[9] Eventually, the defendant took up teaching positions in his own right and developed his own refinements as to the operative procedures.
[9] T1537.
Although during the course of giving his evidence the defendant appeared at times tense and somewhat dogmatic, I was of the view that this was a reaction to the circumstances of the litigation and the fact that his expertise and competence as a surgeon were under challenge. In those circumstances it is understandable that he was somewhat defensive in his responses, particularly to questions in cross-examination.
The plaintiff launched a serious attack upon the defendant’s credit, in part by reference to three documents in which the defendant explained the operative procedures which he carried out on the plaintiff.
These documents were the operation report,[10] which was dictated by the defendant immediately on completion of the surgery, and two documents prepared subsequently by the defendant or on his instructions for the use of his legal advisers.[11]
[10] P3/287.
[11] P7.
The first of those latter two documents was prepared in December 2000 and gives a more detailed explanation of the procedures followed in the surgery.
The second of those documents is dated 15 February 2002. It was dictated on that date by the defendant’s solicitor, Mr Geoffrey Black. It is headed “Suture Placement in Piwonski Case”. I will refer to it from time to time as the “suture placement” document.
There is force in the submission put by Mr Clayton QC for the plaintiff that there are significant differences between these documents, particularly in the suture placement document as opposed to the two earlier documents.
In particular it was the suture placement document which appears for the first time to have advanced expressly the possibility that the stroke was caused by the dislodgment of calcium associated with the placement of the sutures by which the prothesis which replaced the aortic valve was tied into place. I give a more detailed explanation of that thesis later in these reasons.

I accept that the amount of detail to be included in the operation report prepared by a surgeon is likely to differ between surgeons. It will to a certain extent depend upon the judgment of the operating surgeon as to what it is necessary to include. However, in my view, the criticism of some of the expert witnesses to the effect that the operation report is lacking in some detail which should ideally have been included, is well founded.
But after giving this aspect of the matter the most anxious consideration, I have reached the view that the discrepancies between the three documents are not to be taken as detracting from the defendant’s credit.
At the time he dictated the operation report, the defendant had no idea that litigation would ensue. Although, as I have said, it was lacking in detail, I accept that this is an expression of the defendant’s habit at that time, and does not reflect upon its veracity.
The operation report simply did not descend into relevant detail.
The other two documents were prepared at the instigation of the defendant’s solicitors, and their terms largely reflect the defendant’s understanding of the extent of the information which he believed he was being asked to supply.
In the result, I accept the defendant’s evidence, both as to the course of the operation performed on the plaintiff and as to the appropriateness of the surgical procedures which were carried out.
QUESTIONS OF LAW
There is now much authority defining the approach of the courts to cases involving allegations of medical negligence.
A convenient starting point is the observation of King CJ in F v R:[12]
“The law imposes on a medical practitioner a duty to exercise reasonable care and skill in the provision of professional advice and treatment. The standard of care is that to be expected of an ordinarily careful and competent practitioner of the class to which the practitioner belongs.”
[12] (1983) 33 SASR 189 at 190-191.
Insofar as the duty comprehends both diagnosis and treatment and the provision of professional advice, expressed in general terms, the duty is a “single comprehensive duty”: see Rogers v Whitaker per Mason CJ, Brennan, Dawson, Toohey, Gaudron and McHugh JJ:[13]
“The law imposes on a medical practitioner a duty to exercise reasonable care and skill in the provision of professional advice and treatment. That duty is a ‘single comprehensive duty covering all the ways in which a doctor is called upon to exercise his skill and judgment’;[14] it extends to the examination, diagnosis and treatment of the patient and the provision of information in an appropriate case.[15] It is of course necessary to give content to the duty in the given case.
The standard of reasonable care and skill required is that of the ordinary skilled person exercising and professing to have that special skill.[16] .......”
[13] (1992) 175 CLR 479 at 483.
[14]    Citing Sidaway v Governors of Bethlem Royal Hospital [1985] AC 871 per Lord Diplock at 893.
[15]    Citing Gover v South Australia (1985) 39 SASR 543 per Cox J at 551.
[16]    Citing Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 at 586; [1957] 2 All ER 118 at 121: see also Whitehouse v Jordan [1981] 1 WLR 246; [1981] 1 All ER 267 at 277, at 258 per Lord Edmund-Davies and Maynard v West Midlands Regional Health Authority [1984] 1 WLR 634 at 638; [1985] 1 All ER 635 at 648 per Lord Scarman.
This case involves the application of that general principle, both as to the allegation that the plaintiff was not adequately advised of the risk of the operation by the defendant and as to the manner in which the defendant carried out the surgery.
The difficulty in defining the scope of the duty of care of medical practitioners on the basis of a “single comprehensive duty” is that it says very little about the content of the duty in a particular case, and does not allow for what has been recognised as the differences of approach called for when dealing with matters of diagnosis and treatment on the one hand and the provision of information and advice on the other.
In that respect I refer to the dictum of Gaudron J in Rogers v Whitaker:[17]
“There is no difficulty in analysing the duty of care of medical practitioners on the basis of a ‘single comprehensive duty’[18] covering diagnosis, treatment and the provision of information and advice, provided that it is stated in terms of sufficient generality. Thus, the general duty may be stated as a duty to exercise reasonable professional skill and judgment. But the difficulty with that approach is that a statement of that kind says practically nothing - certainly, nothing worthwhile - as to the content of the duty. And it fails to take account of the considerable conceptual and practical differences between diagnosis and treatment, on the one hand, and the provision of information and advice, on the other.” (emphasis added)
[17] Ibid at 492.
[18] Sidaway v Governors of Bethlem Royal Hospital [1985] AC 871 at 893 per Lord Diplock.
Gaudron J went on to point out that[19] “.... the evidence of medical practitioners is of very considerable significance in cases where negligence is alleged in diagnosis or treatment”, but is much less significant in cases which turn on the adequacy of the information provided by the medical practitioner as to the risks inherent in the treatment.
[19] Ibid 493.
In neither situation, but a fortiori in the context of adequacy of advice as to risks, is it determinative of the question whether there is a breach of the duty of care for the defendant to prove that he or she acted in accordance with a responsible body of professional opinion.
As it was put by King CJ in F v R:[20]
“In many cases an approved professional practice as to disclosure will be decisive. But professions may adopt unreasonable practices. Practices may develop in professions, particularly as to disclosure, not because they serve the interests of the clients, but because they protect the interests or convenience of members of the profession. The court has an obligation to scrutinize professional practices to ensure that they accord with the standard of reasonableness imposed by the law. A practice as to disclosure approved and adopted by a profession or a section of it may be in many cases the determining consideration as to what is reasonable. On the facts of a particular case the answer to the question whether the defendant’s conduct conformed to approved professional practice may decide the issue of negligence, and the test has been posed in such terms in a number of cases. The ultimate question, however, is not whether the defendant’s conduct accords with the practices of his profession or some part of it, but whether it confirms to the standard of reasonable care demanded by the law. That is a question for the court and the duty of deciding it cannot be delegated to any profession or group in the community.”
[20] (1983) 33 SASR 189 at 194.
In taking that stand, the courts in Australia have declined to follow the English decisions of Bolam v Friern Hospital Management Committee[21] and Sidaway v Governors of Bethlem Royal Hospital.[22]
[21] [1957] 2 All ER 118.
[22] [1985] AC 871.
But it does not follow that the evidence of the practice followed by competent medical practitioners is irrelevant. On the contrary, it is always a relevant item of evidence, and at times will be highly relevant.
As was pointed out by Gleeson CJ in Rosenberg v Percival,[23] what legal authority in Australia lays down is that evidence of professional practice and opinion is relevant but not conclusive. At the same time he observed:
“In many cases, professional practice and opinion will be the primary, and in some cases it may be the only, basis upon which a court may reasonably act.” (emphasis added)
[23] (2000) 178 ALR 577 at 579.
Insofar as the plaintiff’s case is based upon alleged negligence on the part of the defendant in carrying out the surgical procedures involved in the operation, I have of necessity been obliged to rely largely upon evidence of the expert medical witnesses as to the manner in which competent surgeons undertake the relevant procedures. In doing so, I have been well aware of the fact that it is not for the court to delegate to the medical profession responsibility for determining the content of the duty of care.
But it would be a bold step for the court when confronted with conflicting evidence as to the manner in which highly competent surgeons carry out a particular procedure, to take the step of finding that a practitioner who adopted one well accepted modality rather than another, was negligent.
The plaintiff contended that given the disastrous consequences which could follow from the release of a fragment of calcium into the bloodstream in the course of the surgery which he underwent, every reasonable precaution should be taken to minimise the risk of that occurrence. I accept the validity of that contention.
But it does not follow that it is incumbent upon a surgeon to adopt every procedure which some but not all competent surgeons recommend. In any event, some are alternative procedures, and it would be impossible to adopt them all.
It is for an individual surgeon to determine what is best in the interests of the patient and the interests of the safe execution of the procedure. If a surgeon carries out a procedure many times, perhaps on hundreds of occasions, and maintains a very low incidence of complications, well within international standards, he or she may well feel justified in continuing to utilise techniques which have consistently resulted in good outcomes, even if their adoption involves a choice between different modalities adopted by competent surgeons practising in that speciality. In such circumstances, it would be a rare case where the court would be justified in holding that the surgeon was negligent.
As for the duty to warn, in Rogers v Whitaker (supra) the High Court adopted the dictum of King CJ in F v R (supra) in the following passage:[24]
“King CJ considered[25] that the amount of information or advice which a careful and responsible doctor would disclose depended upon a complex of factors: the nature of the matter to be disclosed; the nature of the treatment; the desire of the patient for information; the temperament and health of the patient; and the general surrounding circumstances. His Honour agreed with[26] the following passage from the judgment of the Supreme Court of Canada in Reibl v Hughes:[27]
‘To allow expert medical evidence to determine what risks are material and, hence, should be disclosed and, correlatively, what risks are not material is to hand over to the medical profession the entire question of the scope of the duty of disclosure, including the question whether there has been a breach of that duty. Expert medical evidence is, of course, relevant to findings as to the risks that reside in or are a result of recommended surgery or other treatment. It will also have a bearing on their materiality but this is not a question that is to be concluded on the basis of the expert medical evidence alone. The issue under consideration is a different issue from that involved where the question is whether the doctor carried out his professional activities by applicable professional standards. What is under consideration here is the patient’s right to know what risks are involved in undergoing or foregoing certain surgery or other treatment.’
The approach adopted by King CJ is similar to that subsequently taken by Lord Scarman in Sidaway and has been followed in subsequent cases.[28] In our view, it is correct.”
[24] (1992) 175 CLR 479 at 488.
[25] Ibid at 192-193.
[26] Ibid at 193-194.
[27] (1980) 89 DLR (3d) 112.
[28] Battersby v Tottman [1985] 37 SASR 524; Gover v South Australia (1985) 39 SASR at 551-552; Ellis v Wallsend District Hospital (Unreported; Supreme Court of New South Wales; 16 September 1988); E v Australian Red Cross (1991) 27 FCR at 359-360.
In this case, relevant factors include, amongst other considerations, the plaintiff’s obvious anxiety about his condition and the operation (although he did not expressly ask for advice as to the risks); and the risk of not having the operation; the seriousness of his condition; (as will be seen) the fact that he had received a separate warning from Dr Sheppard; and (so far as the content of the warning is concerned) the comparatively low incidence of this complication occurring.
THE AORTIC VALVE AND ITS REPLACEMENT
The aorta is that part of the structure of the heart which is the main trunk through which blood feeds into the arteries servicing the entire body. The aorta rises from the left ventricle or cavity of the heart.
The aortic valve controls the flow of blood from the aorta. In an adult, the diameter of the valve is about 2.3 centimetres. The valve function is controlled by three flaps, known as “leaflets” which, in a healthy valve, open and close. When closed, they overlap slightly and support each other against the downward pressure. They are no more than 1 to 2 millimetres in thickness.[29]
[29] T458.
The function of the aortic valve can be adversely affected by the progressive formation or deposit of calcium on the valve. Commonly, the calcification extends to the annulus, which is the circumferential base or ring from which the leaflets arise. Such a deposit sometimes extends into surrounding areas such as the ventricular septum, or wall of the ventricle.
If the valve becomes calcified, this impedes the movement of the leaflets. If heavy calcification occurs, not only is the movement of the leaflets affected, but the aperture through which the blood may flow becomes increasingly restricted, sometimes to no more than a pin-hole.
The abnormal narrowing of the aperture of the aortic valve, which results in an impeded ability for it to deliver blood to the arteries, is known as stenosis. In the case of severe aortic stenosis, the patient is likely to suffer from shortness of breath particularly on exertion, palpitations, angina, dizziness and even fainting.
When aortic stenosis is diagnosed, it is commonly treated by surgical removal of the diseased valve and its replacement by a prosthesis.
A mechanical prosthesis may be used, as was the case here, but it is also possible to use an aorta removed from a pig.
Fitting of the prosthesis involves removal of the calcified leaflets of the valve, followed by removal of the calcium in the surrounding areas by a process known as debridement. The debridement focuses particularly in the area of the annulus or ring, so as to enable the suturing of the prosthesis into place by a series of sutures placed through the prosthesis into the tissue of the annulus.
The process of debridement carries with it a risk that a fragment of the calcium which is removed in that process may enter the blood stream, and, when the heart commences pumping again after the operation is completed, may be carried to the brain. This may cause a stroke resulting in hemiplegia.
In fact, the likely cause of the plaintiff’s disability is the dislodgment of a small fragment of calcium which occurred either during the course of the operation performed by the defendant, or after the heart recommenced pumping, and which subsequently embolised and travelled to the brain, causing a stroke resulting in dense left-sided hemiplaegia.[30]
[30] This was the case put by the plaintiff. See the plaintiff’s written submissions, page 11, para 46 et seq.
The central issue in the case is whether this resulted from a failure on the part of the defendant to exercise due care and skill in his performance of the surgery.
PRELIMINARIES TO THE OPERATION
(a) Developments in 1996
The plaintiff was in the habit of feeling his own pulse rate.
On 4 January 1996, when he checked his pulse, he thought that the rate was low.
On the same day he consulted his general practitioner, Dr Reece Jennings. He referred the plaintiff for a chest x-ray, a blood analysis and a test of cardiac enzymes.
Dr Jennings saw the plaintiff the next day, that is, on 5 January 1996, when the result of the tests was to hand.
The chest x-ray suggested calcification of the aortic valve and the possibility of aortic stenosis. In view of this finding, Dr Jennings referred the plaintiff to Dr Mark Sheppard, a cardiologist.
Dr Sheppard arranged for further tests. One of them was an echocardiogram which confirmed that the plaintiff was suffering severe aortic stenosis.
By letter of 12 January 1996[31] Dr Sheppard wrote to Dr Jennings expressing his concern at the plaintiff’s condition. His letter includes the following passage:
“Although he was not convinced immediately I pursued him (sic) that the risk of going on like this was very considerable in that he should have an aortic valve replacement. I would estimate the mortality rate at about 50% over two years if he does not have aortic valve replacement. ..... I have told him that the risk is very considerable without an aortic valve replacement.”
[31] P3/146.
In the course of his evidence, Dr Sheppard explained that when he recommended aortic valve replacement, it was his invariable practice to explain to the patient what risks were involved in the operation. I find that, more likely than not, he gave an explanation to the plaintiff along the lines of the following passage in his evidence:[32]
“Well, in terms of stroke I give them an idea - I might say that it’s the brain that might be affected rather than actual stroke. But if I think they are going to understand it I say ‘stroke’. If I’m not so sure I say the brain might be affected. In terms of death I say there is a low risk. I say there is a low risk of those two things and I then go through some of the other features of the operation, saying it’s a big operation and it takes a while to recover and then I give the pros. So I give the pros and cons and then let them make up their mind.”
[32] T1935.
He went on to say that the plaintiff asked him “lots and lots of questions”.
The plaintiff saw Dr Jennings again on 31 January 1996.[33] Dr Jennings reported to Dr Sheppard on the outcome of that consultation by letter to Dr Sheppard of 1 February 1996, the text of which is as follows:
“He [Mr Piwonski] saw me on the 31^st January to discuss his cardiac problems and he is quite adamant that he will not have an aortic valve replacement. He personally considers that his health is good and that he does not want to be ‘cut up’ and fitted with a ‘plastic valve that clicks all the time’. He pointed out to me that he will have to die sooner or later and he is quite happy to take his chances on that!
I have told him that I thought that it was definitely in his interest to have the operation but, of course, he cannot be made to have it.
He has promised to ring and make an appointment when he gets worse.”
[33] See case note P4.09, letter to Dr Sheppard P3/145 and evidence T2006.
The plaintiff consulted Dr Jennings again in May, August and early September for unrelated conditions.
On 23 September 1996 the plaintiff saw Dr Jennings again. He complained that for several weeks he had suffered from aches and pains, which Dr Jennings thought at first was a low-grade fever. Dr Jennings arranged for various tests and other specialist examinations to be performed, with the result that the condition was eventually diagnosed by a consultant rheumatologist and general physician, Dr Marek Litwin, as polymyalgia rheumatica.
While that condition is not relevant for present purposes, the plaintiff’s appearance and general poor health caused Dr Jennings to refer him back to Dr Sheppard, who saw the plaintiff again on several occasions in October 1996.
On the third of those occasions, namely on 30 October 1996, the plaintiff complained to Dr Sheppard of shortness of breath. On examination, Dr Sheppard found an elevated pressure in the veins in the neck.[34] Dr Sheppard said in evidence that this was a clear indication of heart failure.[35]
[34] The technical description is that the jugular venous pressure or JVP was up 3 centimetres.
[35] T1941.

On the occasion of a further consultation with Dr Sheppard on 13 November 1996, the plaintiff told Dr Sheppard that he had a persistent cough and shortness of breath with exertion.
By letter of the same date to Dr Jennings, Dr Sheppard reported:
“Since I last saw him he has had a persistent cough and although a recent chest x-ray has evidently shown no failure. I repeated the test yet again today and found definite signs of failure with plural fusion. It therefore was clear that he has gone into failure and that he now requires an aortic valve replacement.”[36]
[36] P3/132.
In his oral evidence, Dr Sheppard stated that he discussed the plaintiff’s condition with him on 13 November 1996, and that he told the plaintiff:
“This is now becoming very serious ... you need to come straight into hospital to have the surgery done immediately.”
At that stage he estimated that the plaintiff’s life expectancy had deteriorated to a 70% probability of death in two years.[37]
[37] T1945.
When Dr Sheppard saw the plaintiff again on 18 November 1996, although the plaintiff’s jugular venous pressure had improved as a result of treatment with drugs, it was still raised, and Dr Sheppard continued to be concerned about the plaintiff’s condition. He arranged for the plaintiff to undergo an angiogram as a preliminary to aortic valve replacement.
Eventually Dr Lehman, a cardiologist, performed an angiogram on 27 November 1996. I find that Dr Lehman warned the plaintiff of the risks in the angiogram procedure, and that the plaintiff expressly consented to run those risks. He did so in a consent form which he signed in the following terms:
“I have had the details and implications of the treatment or surgical procedure explained by the medical practitioner and have given consent for the same to be performed.”[38]
[38] P1/32.
The procedure for an angiogram is to introduce into the patient’s groin a catheter which is fed through the patient’s artery to the intended site, in this case the heart. Once in position, dye is injected and the flow of the dye enables a diagnosis to be made, amongst other things as to whether or not calcium is present.[39]
[39] For detail of the procedure as administered on the plaintiff, see Dr Lehman at T1491 et seq.
By reference to this angiogram, Dr Lehman found that the aortic valve was “heavily calcified”. Part of Dr Lehman’s evidence was:[40]
“Q.You used the words ‘heavily calcified’, if there was a scale of calcification of say, 0, no calcification, to ten, the most that you have ever seen, where would you place the calcification in Mr Piwonski’s case on that scale.
A.Eight or nine.
Q.From the angiogram are you able to make any determination as to whether the calcification has extended beyond the leaflets of the valve to other parts of the aorta or the heart.
A.Yes.
Q.In the case of Mr Piwonski, what were you able to determine.
A.That it was largely confined to the valve.”
[40] T1493.
Dr Lehman advised the plaintiff that the only option by way of treatment was aortic valve replacement.
The results of the angiogram were reported to Dr Sheppard. In view of those results and his diagnosis of the plaintiff, by letter of 29 November 1996 Dr Sheppard referred the plaintiff to the defendant to perform the aortic valve replacement.
(b) Pre-operative Consultations with Mr Knight
The plaintiff consulted Mr Knight on two occasions before the operation: on 4 December 1996 and on 19 March 1997. There are major differences in the evidence of the plaintiff on the one hand and the defendant on the other as to what passed between them on each of the consultations.
Having regard to my findings on credit, I resolve those differences in favour of the account given by the defendant.
I will deal with each consultation in turn.
(i) 4 December 1996
For present purposes, the important topic upon which to focus is the question of what, if any, warning was given by the defendant as to the risks involved in the operation.
Although he had no specific recollection of his discussion with the plaintiff on this topic, the defendant’s evidence, which I accept, was that he had an invariable practice as to the content of his discussion with prospective aortic valve replacement patients. His evidence was:
“Q.Would you take us through what was the substance of that standard discussion.
A.I would, and still do, always commence with a brief description of how the operation has to be done. That is, that we have to cut the sternum. We have to put the patient on the heart-lung machine, and I call it that at the time. We have to open the aorta, cut the valve out and put an artificial valve in and, when I have an artificial valve with me, which I often do, but sometimes it is borrowed for teaching reasons, I show the patient a model of that valve. I then talk about the recovery phase of this operation and am very specific that within two to three days the patient will be up and about, home in seven to ten days and be independent within two weeks. I point out that a problem like aortic stenosis is a mechanical problem and requires a mechanical solution, and that pills will not solve the problem. I also point out that there are risks to the operation, there are patients who die and have a stroke, but these risks are very small, and that’s usually the long and short of what I say.”
I accept that evidence. As will be seen, I accept also that the warning which the defendant gave to the plaintiff, which I am satisfied was in those terms, was sufficient in the circumstances of this case to satisfy the legal requirements as to the content of the warning of the risks of the operation.
I reject the plaintiff’s evidence that Mr Knight gave no advice whatever as to the risk. I reject also the plaintiff’s evidence that the defendant told him that there was “no rush” to have the operation, and that the plaintiff could see him any time after 14 January 1997.
I likewise reject the plaintiff’s evidence that the defendant said that he would not do the operation before Christmas because he was going on holidays and that he would be back on 14 January 1997, after which the plaintiff could see him at any time.[41]
[41] Defendant’s written submissions, para 58, page 22.
On the contrary, I accept the defendant’s evidence that he offered the operation to the plaintiff, that the plaintiff was told by the defendant that it was important that he have the operation and told him to get on with it.
I find that it was the plaintiff who expressed the desire to wait until the New Year.[42] The defendant went along with the plaintiff’s wishes in that respect, and wrote the date, 14 January 1997, on a blank form of admission to Ashford. I find that he did so because he was keen for the plaintiff to ring him as soon as the defendant returned from holidays on that date for the purpose of making a time for the surgery.[43] He gave the blank admission form to the plaintiff and wrote on it “Call after January 14”.[44]
[42]    T1690.
[43]    T1827.
[44]    P17.
I accept the evidence that the defendant could and would have performed the operation before Christmas if the plaintiff had been willing. The defendant worked until 24 December 1996.
My preference of the defendant’s evidence as to what transpired on the occasion of this consultation is to a degree confirmed by the terms of the defendant’s letter to Dr Sheppard dated on the same date, that is, 4 December 1996. That letter reads:
“I reviewed this delightful patient today to discuss aortic valve replacement with him. He is a patient who has had palpitations and shortness of breath with one bout of pulmonary oedema secondary to severe aortic stenosis. He has a gradient of over 100 mm of mercury and the valve is heavily calcified.
I agree that aortic valve replacement is clearly indicated and I have discussed the pros and cons of surgery with him today. He is keen to proceed but wishes to wait until the New Year at which time he will give me a call. He is otherwise in good health and his coronary arterial anatomy is normal. I would not envisage any major problems with his surgery.
Many thanks for referring this patient.”
(ii) 19 March 1997
After the consultation on 4 December 1996, the plaintiff did nothing further about seeing Mr Knight again or arranging the operation until late February 1997, when he made an appointment to see the defendant on 19 March 1997.
It was unusual for the defendant to consult with a prospective aortic valve replacement patient twice.[45]
[45] T1827.
I accept the defendant’s evidence that for the first ten minutes or so the plaintiff unburdened himself as to concerns as to whether or not the operation would affect his various ailments, which he described in great depth. I reject the plaintiff’s evidence to the contrary.
Furthermore, I reject the plaintiff’s evidence that the defendant said, “The operation will be 99.9% successful”.[46] Not only did the defendant deny in evidence that he had said anything like that, but the suggestion that he had made such a comment was not put to the defendant in cross-examination.
[46] T222, 228, 397-398.
I am satisfied, however, that the defendant told the plaintiff, “Mr Piwonski, you will die if you don’t have this operation”.[47] Indeed, the plaintiff did not dispute that the defendant gave him a warning in those terms.
[47] T223, 229, 397-398, 1600.
Despite that warning, the plaintiff continued to prevaricate. The defendant offered to make an appointment then and there for the plaintiff’s surgery, but the plaintiff would not give a commitment.[48]
[48] T1603, 1694.
The defendant wrote a letter to Dr Sheppard on the same day, that is, 19 March 1997 reporting on his consultation with the plaintiff. The letter is as follows:
“I reviewed this patient again today to discuss his further anxieties about upcoming aortic valve replacement. He has unfortunately been procrastinating now for over three months with regards to whether he can face up to having the aortic valve replacement. He actually has a gradient of over 100 and I was most strong with him today about the urgency to get on with the operation. He had a thousand trivial questions and concerns about seborrheica dermatitis, cholecystitis and many other trivial medical conditions which seem to be worrying him more than his aortic valve itself.
I spent considerable time explaining the critical nature of his stenosis and importance of getting on with his surgery in the near future. Whether he will respond to this, only time will tell. I have asked him to call me as soon as he can regarding arranging a date for his surgery.”
Later on the same day, that is, 19 March 1997, the plaintiff consulted Dr Jennings again. Surprisingly, it does not appear that he discussed with Dr Jennings what he had just been told by the defendant. Rather, it appears that he pursued with Dr Jennings concerns as to a condition of dermatitis from which he was suffering.
(c) The Final Phase
The plaintiff’s evidence was that immediately after he had seen the defendant on 19 March 1997 he attempted unsuccessfully to make an appointment with the Ashford Specialist Centre for the surgery to be performed, but was told to come back later. In fact, it was on 2 April 1997 that the plaintiff made the appointment for the surgery.[49]
[49] T229.
The plaintiff’s condition was, by this stage, beginning to catch up with him. He saw Dr Jennings again on 10 April 1997 with symptoms which clearly indicated heart failure, principally shortness of breath.
Dr Jennings note of the consultation on 10 April 1997 was:
“Very frightened - went into LVF [left ventricular failure] swallowed a lot of Frusemide OE. He is de-compensating. I told him that as he was having the operation next week, he should not delay it. I hoped he lasted the distance. I also wished him well and hoped that he did not drop dead beforehand.”
The next day, that is, 11 April 1997, the plaintiff saw Dr Sheppard complaining of further breathlessness. Dr Sheppard increased his medication and noted that he was due to have the operation the next week.[50]
[50] See P3/119.
Soon afterwards, on 13 April 1997, the plaintiff had a dizzy spell, as a result of which Ms Jermakow took him to Ashford Hospital. He was admitted for observation, but when it was realised that he was due for an operation on 17 April, he was not discharged and was kept in bed in preparation for the operation.
THE OPERATION
Present at the operation apart from nursing staff were the defendant, his assistant Dr Neoh, the anaesthetist Mr Lillie and the perfusionist Ms Ottens.
The function of the perfusionist is to operate the heart-lung machine, monitor the blood flow, and to take over from the anaesthetist control of anaesthetic and pain relieving drugs. Effectively, the perfusionist is in charge of the patient’s life support from the time that the heart is by-passed at the commencement of the operative procedures until normal heart function is restored on completion of the surgery.
In this case, once the aortic valve was exposed, it was obvious to the defendant that it was very heavily calcified. In his operation report,[51] he said:
“The heart was in sinus rhythm and there was gross cardiomegaly. Pulmonary pressures were extremely elevated. Overall left ventricular function appears significantly depressed. The aortic valve itself is exceedingly calcified and the most calcified this surgeon has ever seen. The calcium extended well into the septum and was up to 2 centimetres depth in places. The valve itself had only a pin-point orifice .... Descending aorta was somewhat dilated and extremely thin.”
[51] P3/287.
After various preliminaries were undertaken, the defendant commenced the process of debridement of the calcium so as to enable fitting of the prosthesis. Removal was effected largely by the use of rongeurs.
A rongeur is a forceps-like instrument with an action similar to a pair of pliers. Its use in this context involves effectively fragmenting the calcium by a crushing action and removing it piece from the surrounding structures. The object is to leave a clean non-calcified area in which to place the prosthesis and through which to insert the sutures by which the prosthesis is held in place.
Particularly in view of the depth to which the calcium had penetrated, this part of the operation required considerable care and skill.
The process resulted in a complication, namely, a dehiscence or separation of the anterior leaflet of the mitral valve, which is an adjoining structure, from the aortic annulus associated with some separation of the ascending aorta from the heart in the vicinity of the left coronary cusp.
Repair of the dehiscence was effected by using what are described as buttress mattress sutures. These are sutures the anchorage of which is reinforced by small pieces of Teflon.
Having effected that repair, it was nonetheless obvious that a good deal of calcium still remained. To use the description contained in the suture placement document:[52]
“However, beneath the right coronary cusp, the lateral extension of the calcium was extreme. It was over 2 cm in depth and extremely friable. More and more calcium was removed, until serious concerns over aorto-ventricular integrity were felt. With no true annular tissue, ascending aortic tissue, or muscular septal tissue left, it was felt that further debridements of the seemingly endless calcium in this area would result in an unsalvageable aorto-ventricular dehiscence. Thus the judgment of this surgeon was to halt further removal of this calcified tissue and place sutures to secure the valve in place, through this area. It was this surgeon’s clear belief that had further debridements continued, an irreparable outcome would have ensued.”
[52] P7, dated 15 February 2002.
That description highlights the problem which the defendant faced, namely that complete removal of the calcium from the circumferential base or ring, that is the annulus, so as to provide an uncalcified base of tissue onto which the prothesis could be sutured, proved impossible without threatening the integrity of the structures. More particularly, in simple language, to have gone further would have caused a hole in the heart between the left and right ventricles which more than likely would have been an irreparable, fatal condition.
In the result, what must be accepted as a less than ideal process was then followed to secure the prosthesis, namely its placement upon an area from which all the calcium had not been completely removed, again using mattress sutures in an endeavour to buttress the sutures.
To return to the description in the suture placement document:
“Thus for suture purchase and security of valve placement, everting mattress sutures encompassing the area of this residual calcification were placed. This unavoidable situation necessarily involved the compression and distortion of the calcified tissue during suture tying, and gave rise to a fear of dislodgment of calcium. An inspection was carried out through the valve at the completion of tying down, but exposure was typically less than ideal, although no sign of calcium particles could be observed. The ventricle, now full of blood, was up-ended and emptied across the valve to try and flush out any residual particles prior to closing the aortotomy. In the circumstances, the suture placement and tying down of the valve had the potential to create compression and distortion of the calcified tissue in and around the area of the sutures creating the potential for calcific embolization once the heart became active again.”
Despite these difficulties, the valve was placed correctly and properly seated, with the result that no para-valvular leak has since occurred. By all accounts the plaintiff’s valve function by the medium of the prosthesis has been excellent.
However, soon after the operation it was apparent that the plaintiff had suffered a stroke resulting in left sided hemiplaegia.
The stroke was consistent with a blockage in an artery in the right side of the brain. I find that the most likely cause of the blockage in the artery in the brain was the accidental release into the blood stream of a fragment of calcium dislodged from the operation site, which embolised when heart function was restored.
There are three possible means by which a fragment of calcium might have been dislodged from the operation site in circumstances which could have resulted in that consequence:
(a)calcium may have been dislodged and fallen into the left ventricle during the process of removal of the leaflets;
(b)calcium may have been dislodged and fallen into the left ventricle during the process of debridement which followed removal of the leaflets;
(c)calcium may have been dislodged by the process of “compression and distortion of the calcified tissue in and around the area of the sutures”[53] after the operation site had been closed and the heart re-started.
[53] See the Suture Placement document, P7.
On the evidence, it is simply not possible to say which of those three possible causes accounts for the calcific embolization which resulted in the damage to the brain.
In addressing the question of the knowledge of the defendant during the operation as to the possibility that calcium had been accidentally dislodged and not retrieved, Mr Clayton QC placed much stress on the evidence of an alleged discussion between Ms Jermakow and the surgical assistant, namely Dr Neoh, shortly after the operation.
On the evidence, I am not satisfied that the conversation was with Dr Neoh as opposed to the defendant.
Be that as it may, she said at one stage during the course of her evidence in chief that she asked Dr Neoh:[54]
“How did it go with the operation with Mr Piwonski?”
Dr Neoh said:
“Well, the operation is successful but we didn’t take all the calcium out. I hope everything will be all right.”
[54] T69.
Elsewhere[55] she deposed to a further conversation with Dr Neoh, her account of which was along the following lines:
“‘Dr Neoh, why am I protecting something (sic) to not get the calcium, how to make the operation to protecting the calcium not get to the blood stream’ and he said to me, ‘How we clean up the calcium when we open up the clamp, somehow the calcium get to the blood stream’.”
[55] T72.

In the first place, I am not satisfied that Dr Neoh was authorised to make statements binding upon the defendant. Dr Neoh was an employee of the hospital, not of Mr Knight. It is true that a fee referable to Dr Neoh was charged by Mr Knight in his account, but this was for administrative reasons to enable him to recoup Dr Neoh’s fee which he had paid as part of an arrangement with the hospital pursuant to which he met the cost of the facilities and services offered by the hospital, including Dr Neoh’s services.
In his evidence, Dr Neoh said that he had no recollection of any conversation with any family member or friend of the plaintiff.
On the other hand, Mr Knight gave evidence of a conversation with Ms Jermakow very shortly after the operation. It may be that she is confused as to whom it was she spoke.
I accept the evidence of Mr Knight that he spoke to Ms Jermakow and as to the context of the conversation. When the defendant was asked to state the substance of his conversation with Ms Jermakow, his answer was:[56]
“A.In essence, I reported that the operation had been completed but I had substantial concerns about whether Mr Piwonski would wake up normally or suffer a stroke because I had been unable to remove calcium from an important area in the operation. I would have gone on to say that only time will tell and we just have to wait and see.
Q.Do you remember any response from her.
A.No, I cannot remember the response.
Q.Do you remember whether the word ‘stroke’ was used.
A.I’m convinced I used the word ‘stroke’ otherwise the interaction would not have been useful.”
[56] T1665.
The conversation between Mr Knight and Ms Jermakow in the terms in which I find that it took place supports the view that Mr Knight was aware that he had been unable to remove all of the calcium which it would have been desirable to remove, and that he honestly conveyed the fears which he held in that respect to Ms Jermakow immediately after the operation. It does not support the view that he was aware that calcium had been dislodged during the course of the operation and that he had failed to locate and retrieve it.
It follows that opinions expressed, more particularly by Mr Leverment and by Dr Berger based on the view that Mr Knight had made statements in which he acknowledged that at the time of the operation he was aware that a piece of calcium had fallen into the left ventricle or otherwise had become dislodged and had not been recovered or retrieved by him, have no foundation in the evidence.[57]
[57] See the defendant’s written submissions, section G, Post Operative Discussions, para 7.
It remains to deal with the specific allegations of negligence levelled against the defendant as they appear in the pleadings and as they were pursued at the trial.
ADVICE OF RISK
The allegations in the statement of claim bearing upon this aspect of the matter appear in paragraph 12, which is as follows:
“12.The operation carried out by the defendant on the 17^th day of April 1997 was carried out without a properly informed consent being obtained by the defendant from the plaintiff.
Particulars of Defendant’s failure to obtain

a truly informed consent
The defendant:
12.1Failed to advise the plaintiff that he had a much higher than average potential risk of stroke in view of the striking extent of dense calcification noted in the aortic valve on the chest x-ray of 29 October 1996.
12.2Incorrectly advised the plaintiff on 19 March 1997 to the effect that the operation would be 99.9% successful and that he would be able to walk after eight days and in six months time he would be doing the jobs that he used to do.
12.3Failed to advise the plaintiff clearly and properly as to the risks involved in the operation and in particular as to the risk of stroke in light of the extent of calcification in the aortic valve given the plaintiff’s expressed concern as to risks and the operating technique and equipment to be used by the defendant.
12.4Failed to advise the plaintiff that the risk of stroke was of the order of twenty precent (20%) to thirty percent (30%) unless appropriate measures as detailed in paragraphs 13 and 15 herein were taken at operation to reduce that risk.
12.5Failed to advise the plaintiff of the risk of performing the operation without the use of a cusa, having regard to the heavy calcification of the valve.
12AHad the defendant advised the plaintiff adequately or at all of the risks associated with the operation, including each of the matters referred to in paragraphs 12.1 to 12.5 herein, the plaintiff would not have had the surgery undertaken by the defendant on 17 April 1997.”
It was the plaintiff’s case that the risk of a stroke resulting from the operation in question is increased according to the extent of the calcification of the aortic valve.
Given that it is clear that the plaintiff’s aortic valve was severely calcified and that it was known to be so by the defendant before 4 December 1996 when he first saw the plaintiff, it was suggested that a warning should have been given highlighting what was said to be the increased risk associated with the apparent degree of calcification, and that either no warning or an inadequate warning was in fact given by the defendant.
I have already explained that I reject the plaintiff’s evidence that Mr Knight did not give him any warning. I have already found that a warning was given in the context of what was involved in the operation, and that relevantly the content of the warning was:
“.... there are risks to the operation, there are patients who die and have a stroke, but these risks are very small ....”
I have also found that earlier, in January 1996, when the plaintiff consulted Dr Sheppard, the latter explained that:
“.... I say the brain might be affected. In terms of death I say there is a low risk. I say there is a low risk of those two things.”
There are many articles and published statistics setting out stroke rates from particular institutions or particular surgeons. The published stroke rates vary. I accept the evidence of Professor Tatoulis[58] that in most published studies the risk of stroke in aortic valve replacement is between 0.5% and 5%. Further, I accept the evidence of a number of the expert witnesses, including Professor Tatoulis, that the generally accepted stroke rate in 1997 for reasonably competent surgeons was of the order of 3%.[59]
[58] Report 17 October 2000, D8.
[59] See the defendant’s written submissions “D. Advice of Risk” at page 3, para 13.
The largest pool of cases for which statistics are available appears to be contained in a database published by the Society of the Thoracic Surgeons, a learned body based in the USA. That database records that out of 7,874 patients having isolated AVR operations for the first time in 1997, the stroke rate was 2.75%.[60]
[60] D35 and Professor Green at T660 and T662.
Professor Tatoulis’ evidence was that at the Royal Melbourne Hospital, where he practises, the stroke rate was 1% over the period from 1995 to 1999.[61] Professor Buxton’s personal stroke rate between 1992 to 2000 was 2.4%.[62]
[61] Professor Tatoulis T1194 and D63.
[62] T1367.
The defendant’s stroke rate during the period 1992 to March 2002 for all AVR operations performed by him was at Ashford Hospital 3.3% and at Flinders Medical Centre 2.87%.[63]
[63] D79 and D15.
If overall stroke rates are of the order to which I have referred, unless there was some particular factor in the case of the plaintiff, because of his condition, which should have led the defendant to put the plaintiff in a higher risk category, to warn that the risk of dying or having a stroke was “very small” was, in my view, an adequate warning.
Was the plaintiff in a higher than average risk category?
The specific allegation in which an assertion by the plaintiff to that effect is made appears in paragraph 12.1 of the statement of claim. In that paragraph, the plaintiff alleges that the defendant was negligent in failing to advise the plaintiff that he had a “much higher than average potential risk of stroke in view of the striking extent of dense calcification noted in the aortic valve on the chest x-ray of 29 October 1996”.
Insofar as this allegation is tied to the chest x-ray referred to, it is not made out.
The defendant admitted that he did not see a chest x-ray of that date, but no such x-ray was proved in evidence.
It is true, however, that an angiogram was performed on 27 November 1996.
I have already referred to the evidence of Dr Lehman, who administered the angiogram. He interpreted it as indicating that the valve was “heavily calcified”, but that the calcification was “largely confined to the valve”.
Mr Knight had seen the angiogram before his first consultation with the plaintiff.
Insofar as the plaintiff suggested that the extent of calcification ultimately found by the defendant at the operation was apparent from the angiogram, in my opinion, this is pitching the inferences to be drawn from the angiogram too high.
More importantly, I reject the evidence of Professor Green and Dr Berger that in a case involving a heavy degree of calcification, and if certain precautions were not taken, the risk of a stroke is very much higher. It will be seen that it was alleged in paragraph 12.4 of the statement of claim that the risk of stroke was of the order of 20% to 30% if certain precautions, which the defendant admitted he did not take, were not taken.
Contrary to that allegation and the evidence of Professor Green and Dr Berger, I find that there is no proven relationship between the extent of calcification and the risk of stroke, or between the taking of the measures detailed in paragraphs 13 and 15 of the statement of claim and the risk of stroke. The overwhelming weight of evidence given by the expert witnesses on this topic is that no published data supports any such co-relation.
It is not insignificant that the published data, which, as I say, supports a stroke rate of the order of 3%, is based on a pool of patients undergoing aortic valve replacement, of which some 85% have severely calcified valves.
Having regard to the observations which I so far made on this aspect of the matter, the allegations in paragraphs 12.1 and 12.4 have not been made out. Paragraph 12.5 is irrelevant, in view of the finding which I make later in these reasons that it was not incumbent upon the defendant to use a cusa.
As for the allegation in paragraph 12.2, the factual basis for that allegation was not sustained on the evidence. The defendant at no time told the plaintiff that the operation “would be 99.9% successful and that he would be able to walk after eight days and in six months time he would be doing the jobs that he used to do”.
As for the allegations in paragraph 12.3, I have already dealt with and rejected the suggestion that the degree of calcification as known before the operation should have caused the defendant to warn of a higher than average risk.[64]
[64] In putting the matter in that way, I do not mean to suggest that had the precise extent of the calcification as found during the operation been known before the operation, the onus on the defendant to give a warning of the risk, and the context of any warning, would have been any different.
As for the allegation in paragraph 12A, namely that had the defendant advised the plaintiff adequately of the risks, he would not have undertaken the surgery, not only does this allegation fail in view of my finding that in fact the plaintiff was advised adequately of the risks, but even if that was not so, I am unable to find on the balance of probabilities that the plaintiff would have refused the operation if it had been suggested to him that the risk in his case of a stroke was much higher than average due to the extent of calcification.
As to that aspect of the matter, I have been at pains to refer to the lengthy preliminaries to the operation, more particularly with respect to his various attendances during the preceding year on Dr Jennings and on Dr Sheppard. The plaintiff was told again and again by both of them that his condition was such that the operation was indicated as a matter of urgency. During the period over which the plaintiff consulted these two doctors in particular, the plaintiff was aware of increasing symptoms attributable to the condition of his heart, the function of which was deteriorating rapidly.
Although the plaintiff prevaricated and failed over a lengthy period to face up to the operation, I am satisfied that he would eventually have succumbed to the increasing crescendo of advice which he was given to undergo the operation, and that he would have had the operation at about the time when he did, even if a stronger warning of the risk of a stroke had been given.[65]
[65] I do not overlook that the plaintiff’s evidence was not consistent on this topic, and he said on one or two occasions that if a warning of the risk had been given, he would have looked for another surgeon to perform the operation (T228). But that was never pleaded, and the plaintiff’s case as finally put by Mr Clayton QC was that he would not have had the operation at all.
THE REMAINING ALLEGATIONS OF NEGLIGENCE
The remaining allegations of negligence levelled against the defendant have to do with the techniques which he brought to bear in performing the surgery, more particularly that the defendant failed to take a number of precautions which it is said would have minimised the risk of calcific embolization. The particulars of negligence which detail the alleged shortcomings of the defendant in this respect are as follows:[66]
[66] Statement of claim, para 15. See also statement of claim, para 13.
“Particulars of Negligence of the Defendant
“The defendant:
15.1Failed to take adequate precautions to obviate the risk of the plaintiff suffering stroke in view of the heavy calcification of the valve.
15.2Failed to have transoesophageal echocardiography undertaken at the time of surgery to ensure that there was no calcium debris left in or in the region of the heart and the aortic valve prior to the release of the clamps.
15.3Failed to use a transoesophageal echocardiogram which has a pivotal role in the perioperative management of patients undergoing open heart surgery and permits thorough visualisation of the heart chambers and will detect air or calcium debris within the heart.
15.4Failed to use a cusa (which pulverizes calcium by miniature hammer operated at ultrasonic speed and aspirates the pulverized calcium by coordinated irrigation and suction).
15.5Failed to use a transatrial ventricular venting cannula, (which permits copious irrigation and aspiration of any calcium fragments from the ventricular chamber and also permits filling the heart with blood prior to the removal of the aortic occlusion clamp, so that the heart will then pump all blood containing any calcium fragments through the vent to a filtering system in the heart lung machine).
15.6Failed to use continuous or intermittent cardioplegia infusion rather than the application of cold topical saline.
15.7Failed to use thermistor monitoring of the heart muscle temperature.
15.8Failed to place surgical gauze below the valve to catch any loose fragment of calcium.
15.9Failed to thoroughly vent air and any calcium debris from the heart before the aortic clamp was removed and the heart allowed to circulate blood in the plaintiff.
15.10Released the clamps when he knew or ought to have known of the likelihood of calcium debris still being present so as to constitute a danger to the plaintiff.”
A considerable body of evidence was given with respect to each of the procedures referred to in the particulars, in part highly technical. I will deal as succinctly as I can with the evidence and my conclusions as to each of the allegations in turn, in some instances grouping related allegations together.
(a) Use of transoesophageal echocardiogram (Statement of Claim paras 15.2 and 15.3)
Transoesophageal echocardiography is a process by which a graphic record is obtained from within the internal structures of the heart and neighbouring tissue by means of an echo obtained from beams of ultrasonic waves directed through the chest wall. By this means, a picture is transmitted from within the body of the patient to a screen on the machine by which it is administered, which may depict objects, particles or bubbles of air upon which the beams may be focused.
The machine has been used in the context of various heart surgery procedures.
I will describe the machine by the description commonly applied to it, namely as a TOE.
A TOE was available in the cardiology unit of the Ashford Hospital at the time of the plaintiff’s operation. If the defendant had deemed it necessary or appropriate to use it, he could have requested that it be made available.[67] The TOE could have been operated by Dr Ayres.
[67] T1698.
The question comes down to whether or not the defendant was negligent in failing to utilise the machine in the course of the plaintiff’s operation.
The description given in evidence by Professor Green of the manner in which a TOE machine is utilised is as follows:[68]
“A tube about as big as the tip of your thumb is threaded into the patient’s oesophagus, the section that lies just behind the heart, and that directs a beam of ultrasound to the heart and at the other end it’s connected to a detector that detects echoes or reflections of the sound waves off reflective things such as particles of calcium or even air will cause reflections.”
[68] T493.
He went on to explain that it is commonly the anaesthesiologist who operates the machine, but the echocardiographer may be a cardiologist. Professor Green suggested that if calcium fragments were present, the use of the echocardiograph would identify the fragments.
In that event, if calcium fragments were detected, the appropriate procedure would be that before the cross-clamps, which prevent the circulation of blood through the coronary arteries, were removed, the ventricular vents should be filled with blood, and then to allow the heart to start beating[69] so that it expressed its blood through the ventricular vent and on through the heart-lung machine. Professor Green said that “in so doing [the process] will probably express the calcium fragments”.[70]
[69] T495.
[70] T495.
He made clear, however, that the use of the machine was not confined to identifying calcium so that it might be flushed out of the ventricle, but that the machine could also detect air. Any residual air bubbles at the end of the operation, if not removed before the cross-clamp is removed, may embolize and cause the same consequences as calcific embolization.
The plaintiff’s case at the trial, supported by evidence of Professor Green, was that it was standard or routine medical practice in 1997 to use a TOE to detect calcium fragments towards the end of the AVR operation in the manner which I have just described.
Alternatively, the plaintiff suggested that the TOE was in standard use in 1997 not specifically to locate calcium fragments but more particularly to assist with de-airing, that is, the removal of air bubbles which could embolize, and also to check the efficient operation of the prosthesis. The argument was that if one accepts that it was proper to have the TOE in use for those purposes, it should also have been used at the end of the plaintiff’s operation for the purpose of detecting calcium fragments in the ventricle, given the high level of calcification encountered during the course of the operation.
I have carefully considered the evidence on this topic, but in my opinion, the overwhelming weight of expert evidence, being evidence which I accept, is that it was not routine practice either in South Australia or elsewhere in the world for a TOE to be used inter-operatively in an aortic valve replacement operation in 1997.[71]
[71] See Dr Berger’s evidence at 846.26; Professor Tatoulis in D8, pages 5-7 and T1237-1239; the defendant’s own evidence at T1655-1658; Dr Ayres’ evidence at T1882-1884; Professor Horowitz’s evidence at T1754-1758 and 1755.13; and Mr Ross at T1990.10.

But the suggestion that the cardioplegia should be topped up at 20 minute intervals when the cold technique administered by the defendant was utilised, was disputed both by the defendant and by Professor Tatoulis and Professor Buxton.
All of them explained that, historically, at an earlier stage in the development of heart surgery, when warmer cardioplegia techniques were used, it became standard practice to top up the cardioplegia at no longer than 20 minute intervals. It appears from the evidence that otherwise, when using those techniques, there was the possibility of some damage to the heart.
But in the case of the cold technique adopted by the defendant, there was no requirement to administer the cardioplegia intermittently, whether at 20 minute intervals or otherwise, at least for the period of up to an hour or so within which the operation is commonly completed.[90] This is subject to the qualification that if in the meantime the perfusionist detects any sign of movement in the heart, a top-up of cardioplegia should be administered.
[90] As I explain below, the mesne period is of the order of 40 minutes.
The defendant said in evidence that he was alert to the possibility that if, unusually, the perfusionist indicated that there was movement in the heart, further cardioplegia could be administered. If that situation arose, it could be administered quickly, with no risk to the patient.
The defendant’s approach to cardioplegia was expressly endorsed as appropriate practice by Professor Tatoulis[91] and Professor Buxton.[92] Both professors and the defendant explained the so-called “20 minute rule” as being rooted in habit rather than science, a habit borne from experience with warm heart surgery techniques before the use of cold cardioplegia.
[91] T1218.
[92] T1385.
In his report[93] Professor Tatoulis stated:
“The [cardioplegia] technique used by the Defendant is one of the standard techniques of myocardial protection used in Australia, the UK and Europe, and in the USA.”
[93] Report dated 27 October 2000, exhibit D8, page 10.
Professor Buxton referred to experience which he had with Professor Carpentier, a world-renowned heart surgeon[94] in the following passage of evidence:[95]
“Q.We know in this case that the cross-clamp time was some 56 minutes and that Dr Knight continued with his operating technique rather than top up. Have you seen any other surgeons utilise that technique and in particular not top up for that sort of timeframe.
A.Yes, I attended a course of valve surgery in France with Dr Carpentier, whom we mentioned before, and his technique was similar; he had a single dose of intra aortic cardioplegia followed by the use of a cold solution around the heart for a long duration, that is in the order of an hour or more. That was his standard technique as far as I could gather.”
[94] Professor Tatoulis, who had seen Professor Carpentier perform surgery, described him as enjoying a “prestigious reputation, one of the foremost valve surgeons, similar to Dr Starr and Dr David. His great expertise was the involvement of the valve repair techniques and also an inventor of a number of heart valves which have been in use from about 1970 to the present day”.
[95] T1385.
Mr Stubberfield and Mr Ross also regarded the so-called 20 minute rule as little more than habit based on training.
I am satisfied that it has no proper scientific basis.
I find that there was no want of due care or skill on the part of the defendant in pursuing the cardioplegia regime which he utilised in this case.
I should add that it is not the plaintiff’s case that the cardioplegia regime was the cause of the plaintiff’s stroke. Rather, the plaintiff’s case is that not only was the cardioplegia regime adopted by the defendant unsatisfactory, but that it resulted in the defendant placing himself under such pressure of time that he was unable to spend the time necessary to complete the debridement of calcium in an appropriately careful fashion. The plaintiff points to the dehiscence of the mitral valve and the separation of the ventricle from the aorta as indications that the initial part of the operation was conducted in haste.[96]
[96] Plaintiff’s written submissions paras 146-160.
For example, Dr Berger’s evidence was in part:
“The real significance [of not giving cardioplegia for almost an hour] is he had to rush through the operation because if it went longer than an hour without giving cardioplegia there would be a significant risk of severe damage to the heart.”
I reject that evidence and evidence in similar vein from Professor Green and Mr Leverment. These witnesses spoke of a time of at least 90 minutes being necessary, given the heavily calcified state of the plaintiff’s aortic valve to effect careful, meticulous removal of the calcium and to minimise the risk of a fragment of calcium embolising.
The defendant was adamant in his evidence that he did not feel rushed, and that he took as much time as was necessary to effect the debridement and suturing as carefully as he could. I accept that evidence.
Furthermore, I am satisfied that the mean cross-clamp time, both up to and including April 1997 and for the period thereafter until March 2002 in South Australia for the performance of this operation was of the order of 40 minutes, and that the mean cross-clamp time for the operations performed by the defendant during those periods is much the same.[97] Given the complications which occurred during the surgery in question, extra time, which Professor Tatoulis thought might have been of the order of ten minutes[98] and which Professor Buxton thought might take an extra five or seven minutes,[99] confirms that the actual cross-clamp time taken for the plaintiff’s operation, namely 56 minutes, lends no support to the view that the defendant was rushing.
[97]   See exhibit D81, being a statement of data extracted from records held by the Cardiac Surgery Research Centre, a division of Flinders Medical Centre.
[98]    T1222 and 1357.
[99]    T1397.
In my opinion, the suggestion that the defendant rushed the operation, or was placed under any pressure of time is not made out.
(e) Failure to use thermistor to monitor the heart muscle temperature (Statement of Claim, para 15.7)
This allegation may be disposed of shortly.
In his report,[100] Professor Green offered the opinion that where cold saline techniques were being used as part of the cardioplegia regime, a thermistor probe, being an instrument used to take temperature readings, should be utilised to monitor heart muscle temperature.
[100] P5/35.
The plaintiff’s case as to this allegation has not been made clear. Surprisingly, Professor Green was not examined in chief on the topic. I note also that no submissions were made, either in writing or orally by the plaintiff’s counsel at the close of the case, dealing specifically with this allegation.
The allegation as it is expressed in paragraph 15.7 of the statement of claim is presumably to be read with the second sentence in paragraph 16.1 of the statement of claim which details particulars of personal injury, namely:
“Furthermore, by not cooling the heart properly during the operation the plaintiff suffered various additional complications.”
I accept evidence adduced by the defendant that provided the heart was asystolic, it’s oxygen requirements were reduced by 90%, and that when in addition the heart is cooled by a topical saline, there is a further reduction in oxygen requirements of the order of an additional 5%.[101] That is on the assumption that the cooling achieves a heart temperature of less than 20 degrees Celsius.
[101] D53.
The defendant submitted that if one knows that the temperature of the heart will be less than 20 degrees Celsius one does not need to use a thermistor. His evidence was that by using cold saline at 4 degrees, given the cooling effects of the heart by-pass machine, the temperature of the heart would definitely be below 20 degrees Celsius.[102]
[102] T1715.
I accept the defendant’s submission that the important issue is the intermittent replenishment of cold saline bathing of the heart to keep it cold.[103] That submission is fully borne out by a passage in the report of Professor Tatoulis which I accept, which is as follows:[104]
“The Plaintiff states that the Defendant ‘failed to use thermistor monitoring of the heart muscle temperature’. The Defendant admits that there [was] no thermistor monitoring of the temperature, but says such monitoring was of no benefit in aortic valve replacement surgery generally, and in particular that performed by the Defendant upon the Plaintiff.
The issue of thermistor temperature monitoring of the heart muscle does not have a major place in cardiac surgery. Some surgeons use this facility routinely, others do not. Standard practice in cardiac surgery would be not to use such as [sic] probe. In my opinion this is because its usefulness has not been scientifically proven.
Specifically with regard to this case, as the heart was bathed in topical cold saline the thermistor probe would have reflected a combination of the myocardial temperature, and also the temperature of the cold saline, and the readings would not have been of any particular scientific value. The important issue here would be that the surgeon intermittently replenished the cold saline bathing the heart, as over the period of time, the cold saline would have been warmed by heat conduction from the other surrounding body tissues.”
[103] Defendant’s written submissions, section H 5, para 7.
[104] Report dated 27 October 2000, exhibit D8, page 10, para 15.7.
None of Professor Tatoulis, Professor Buxton, Mr Stubberfield[105], Mr Ross[106] or the defendant used a thermistor in 1997. Not only has the defendant never used a thermistor, but he has never seen one used in Australia.[107] Dr Berger did not use a thermistor.[108]
[105]    T1901.
[106]    T1991.
[107]    T1642.
[108]    T814.
In any event, there is simply no evidence that the heart was not cooled adequately, and neither is there evidence that the failure to use the thermistor caused any of the damage alleged in paragraph 16 of the statement of claim.
The allegations as to this aspect of the claim were neither clearly presented, nor, to the extent that they were understandable, made out.
(f) Failure to place surgical gauze below the valve to catch any loose fragment of calcium (Statement of Claim, para 15.8)
There was much evidence and a considerable body of submissions on this topic.
Put shortly, the plaintiff’s case was that the exercise of reasonable care and skill expected of a competent surgeon performing this operation necessarily required the surgeon to insert a piece of surgical gauze below the aortic valve, either before its removal, or, if the aperture was not large enough to permit its insertion at that stage, as soon as a sufficient aperture had been opened up to allow placement of the gauze. The plaintiff’s case was that insertion of a piece of gauze in that manner would mean that if any fragment of calcium which was dislodged during the process of removal of the (remainder of the) valve or in the process of debridement in such circumstances that it would otherwise fall into the ventricle, the gauze would catch it, and the calcium would then be removed with the gauze at the end of the operation.
The defendant’s case was that a considerable body of reputable and competent cardiac surgeons choose not to use gauze in aortic valve removal procedures, and that there are recognisable drawbacks in the use of the procedure. According to the defendant, competent surgeons might choose either to use gauze or not, this being an area in which the choice between different modalities of carrying out the operation was a matter of judgment for the individual surgeon to make.
I accept that it is not sufficient for the defendant to avoid liability by simply pointing to the fact that he followed a procedure adopted by other competent surgeons. It must always remain a matter for the court rather than for the medical profession ultimately to determine whether to proceed by a particular method, or to omit to adopt a precaution or technique which it is suggested should have been adopted, is to be regarded as evidence of negligence.
Professor Green described the use of gauze as mandatory.[109] He said it was “standard practice” and “practice recommended in most texts and especially used by most surgeons”.[110] He went so far as to suggest that any competent cardiothoracic surgeon should use gauze in the course of an aortic valve replacement operation, particularly where the valve is heavily calcified. He put it that if the gauze was not used, the surgeon would not be carrying out the procedure with all due care and skill.[111]
[109]    T492.
[110]    T699.
[111]    T548.
Dr Berger’s evidence was in part “doing this operation without the gauze below the valve is like doing a highwire act without a net”.
The plaintiff also called in aid various references in a number of text books in which the use of gauze is recommended. But the references in reputable textbooks do not all support the plaintiff’s case. For example, whereas two editions of an eminent textbook, Surgery of the Chest (Sabiston and Spencer), recommend use of gauze, another edition (written by an eminent Harvard surgeon) refers to the matter in these terms:
“Some surgeons prefer to insert a gauze sponge in the left ventricular cavity ..., although that is generally not the author’s practice.”[112]
[112] Ibid 5^th edition 1990, exhibit D40, and see D32.
The defendant’s evidence on this topic was in part as follows:[113]
[113] T1658-1659.
“Q.We have heard much evidence in these proceedings about the use of a gauze to collect any calcium that might be dropped into the ventricle during the operative procedure. You did not use a gauze in this procedure on Mr Piwonski.
A.I did not.
Q.Was there a time in your operating career where you did use a gauze.
A.When I first went to Canada and started my first independent consultant level cardiac practice I used a gauze for probably less than a dozen aortic valve replacements.
Q.Was it a modality taught to you at Harvard.
A.It was not.
Q.Why did you start to use it.
A.I felt that I was at a bit like the grass root levels. When I trained at the Royal Adelaide one of the surgeons had used it, I thought there was some credence in it and given that I was junior and operating for the first time on nominally my own patients, instead of under someone’s else name, I would observe what I deemed all possible procedures that I could think of.
Q.Why did you give it away.
A.I found it very quickly to be a very unsatisfactory and useless modality in that certainly in the vast majority of those cases that I attempted to use it I could not get it in until I had the majority of the valve already resected. It did not once positioned occlude the drop zone into the ventricle, it didn’t spring open like an umbrella once you dropped it in. It was a compressed wet small piece of cloth which stayed wet and small and quite often did not occlude the orifice that you were trying to protect. On several attempts of removing it calcium was dislodged on the wall of the ventricle. It struck me this added no advantage whatever and yet when it was there it made me feel I was a little bit protected, which I think leaves a false sense of security. I abandoned it in my first year of practice in Canada and have not used it since.”
Professor Tatoulis has never used gauze in this operation, and indeed, has never seen anyone use gauze in his entire career and in all of his travels. This is to be considered in the context of the fact that Professor Tatoulis had extensive training and experience in various institutions in America, including teaching hospitals. This included training under Professor Albert Starr, who was the co-inventor of one of the first heart valves, considered at the time to be one of the foremost valve and cardiac surgeons in the world. According to the evidence of Professor Tatoulis, Professor Starr never utilised gauze in the course of an AVR procedure. Professor Tatoulis stated that in his experience most surgeons did not use the procedure. Indeed, none of the six surgeons in the unit in which he practised in Melbourne used gauze.
Professor Buxton was trained in the use of gauze, but gave it up early in his career. He was also of the view that the majority of surgeons do not use gauze.[114] During the course of his evidence he stated:[115]
“.... over the last 10 or 15 years I have omitted that step [using gauze] because I don’t think it’s necessary. Furthermore, I had trouble with the technique of catching bits of jagged calcium on the way when putting the gauze in. There is a risk of removing cellulose particles from the gauze and furthermore there is a potential risk of coming off the bypass having left the gauze inside if you didn’t take that care. Weighing that up, I’ve omitted it and used other techniques to remove calcium.”
[114] T1437.
[115] T1386.
The evidence establishes that some of the most foremost cardiac surgeons in the world do not use gauze.[116] Mr Stubberfield abandoned the use of gauze years ago. Part of his evidence was:[117]
“Q.Did you abandon it [the use of gauze] for any reason.
A.Well, the major reason was that you actually have to cut most of the valve out in order to get the gauze into the left ventricle and I found it not useful under those circumstances.
Q.In what way did you find it not useful.
A.I thought - most of the risk I felt was embolization from the valve occurred in the early period of removing the valve rather than once you had the thing well exposed.”
[116] Those who are mentioned in evidence in this connection were Dr Tyrone David, Dr Westerby, Dr O’Brien, Professor Carpentier and Professor Starr.
[117] T1899.
At one stage the defendant trained under Dr Craddock at the Royal Adelaide Hospital and observed that Dr Craddock did not use gauze. Neither does Mr Ross.[118] Mr Ross used gauze early in his career, but abandoned the practice about fifteen years ago, well before 1997.
[118] T1989.
A number of reasons for not using gauze were tabulated by Professor Tatoulis in his report:[119]
“ù The aortic valve must be removed or manipulated to a great extent before a gauze can be placed in the left ventricular cavity. A typical stenosed aortic valve coming to valve replacement surgery is somewhere between 0.5 and 1.0 cm² in orifice area. It is generally not possible to place a gauze through such a small opening first, and arrange it appropriately in the left ventricle, before commencing the aortic valve removal and decalcification. Hence the majority of the valve excision and decalcification has to be performed in the first instance.
ùIf a gauze is introduced when the valve has been partly excised and the annulus is calcified, there is danger of the strands of the gauze ‘dragging in’ calcium from the aortic annulus into the left ventricle.
ùAs the gauze is white and most calcium deposits are white or off-white, it is difficult to see if calcium deposits have actually fallen in to the gauze.
ùAt the end of the valve excision and decalcification, the gauze must then be dragged back up through the aortic valve orifice with the danger of any calcium fragments being dragged off the gauze and left in the left ventricular cavity.
ùThe danger of forgetting the gauze and inadvertently leaving it in the left ventricle.”
[119] Report of 27 October 2000, exhibit D8, page 11.
I have reached the view that the question whether or not to use gauze in the manner suggested by the plaintiff’s witnesses is a matter for the discretionary judgment of individual surgeons, and it cannot be said that the making of a decision not to use gauze is evidence of a failure to exercise an appropriate level of care and skill.

In this case, the surgical technique adopted by the defendant involved meticulous debridement so as to ensure as best he could that no fragments of calcium fell into the ventricle, and that if they did do so, he would remove them. Furthermore, at the end of the operation, it was incumbent upon him to rinse the left ventricle thoroughly with saline to wash out any debris which might have fallen into it and which might have gone unnoticed. This the defendant did in the case of the plaintiff’s operation, even more thoroughly than usual.[120]
(g) Releasing the clamps when there was a likelihood of calcium debris still being present (Statement of Claim, para 15.10)
[120] See the evidence of the defendant at T1798:
“We flushed a little more than we would have normally done at the end because of our concern about debris.”
And see the defendant’s written submissions, section H 4, para 6.
I have already dealt with this allegation. The defendant did not release the clamps on the aorta until he was as sure as he could be that there was no calcium debris in the left ventricle.
(h) Alleged failure to take adequate precautions to eliminate the risk of the plaintiff suffering stroke in view of the heavy calcification of the valve (Statement of Claim, para 15.1)
I deal with this allegation, which is the first particular alleged, last. I do so because it will now be apparent that, having regard to the findings which I have made as to the other particulars of negligence, far from being satisfied that the defendant failed to take adequate precautions, I am of the view that he used all precautions which it was advisable to take, having regard to best surgical practice prevailing at the time.
Furthermore, although the defendant was aware before the operation that the valve was heavily calcified, so are most aortic valves in patients presenting for this surgery. There is no recognised or proven correlation between the degree of calcification and the risk of stroke. The fact that the plaintiff’s aortic valve was, before the operation, known to be heavily calcified did not oblige the defendant to adopt any techniques or procedures other than those which he brought to bear.
Insofar as there was an (unpleaded) suggestion that the defendant did not effect the process of debridement of calcium from the operation field as carefully as should have been the case, that suggestion is not made out.
CONCLUSIONS
For the above reasons none of the particular allegations of negligence asserted against the defendant have been made out.
I am satisfied that the defendant gave to the plaintiff an adequate warning of the risks associated with the operation, and that he carried out the operation with an appropriate level of skill and competence.
The plaintiff’s stroke, which was most likely caused by calcific embolization, which could have arisen in one of the three ways referred to above, was not caused by any failure on the part of the defendant to exercise the level of due care and skill required of a competent surgeon.
In these circumstances, it is unnecessary to address the question of assessment of damages.
The plaintiff’s claim must be dismissed.
JUDGMENT CITATIONS
LISTED IN ORDER OF APPEARANCE IN JUDGMENT
1.    T244.
2.    T356.
3.    T243.
4.    T268.
5.    T312-313, T397.
6.    T468.
7.    See D52.
8.    T893.
9.    T1537.
10.    P3/287.
11.    P7.
12. (1983) 33 SASR 189 at 190-191.
13. (1992) 175 CLR 479 at 483.
14.    Citing Sidaway v Governors of Bethlem Royal Hospital [1985] AC 871 per Lord Diplock at 893.
15.    Citing Gover v South Australia (1985) 39 SASR 543 per Cox J at 551.
16.    Citing Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 at 586; [1957] 2 All ER 118 at 121: see also Whitehouse v Jordan [1981] 1 WLR 246; [1981] 1 All ER 267 at 277, at 258 per Lord Edmund-Davies and Maynard v West Midlands Regional Health Authority [1984] 1 WLR 634 at 638; [1985] 1 All ER 635 at 648 per Lord Scarman.
17.    Ibid at 492.
18.    Sidaway v Governors of Bethlem Royal Hospital [1985] AC 871 at 893 per Lord Diplock.
19.    Ibid 493.
20. (1983) 33 SASR 189 at 194.
21. [1957] 2 All ER 118.
22. [1985] AC 871.
23. (2000) 178 ALR 577 at 579.
24. (1992) 175 CLR 479 at 488.
25.    Ibid at 192-193.
26.    Ibid at 193-194.
27. (1980) 89 DLR (3d) 112.
28.   Battersby v Tottman [1985] 37 SASR 524; Gover v South Australia (1985) 39 SASR at 551-552; Ellis v Wallsend District Hospital (Unreported; Supreme Court of New South Wales; 16 September 1988); E v Australian Red Cross (1991) 27 FCR at 359-360.
29.    T458.
30.    This was the case put by the plaintiff. See the plaintiff’s written submissions, page 11, para 46 et seq.
31.   P3/146.
32.    T1935.
33.    See case note P4.09, letter to Dr Sheppard P3/145 and evidence T2006.
34.    The technical description is that the jugular venous pressure or JVP was up 3 centimetres.
35.    T1941.
36.    P3/132.
37.    T1945.
38.    P1/32.
39.    For detail of the procedure as administered on the plaintiff, see Dr Lehman at T1491 et seq.
40.    T1493.
41.     Defendant’s written submissions, para 58, page 22.
42.    T1690.
43.    T1827.
44.    P17.
45.    T1827.
46.    T222, 228, 397-398.
47.    T223, 229, 397-398, 1600.
48.     T1603, 1694.
49.    T229.
50.     See P3/119.
51.    P3/287.
52.    P7, dated 15 February 2002.
53.    See the Suture Placement document, P7.
54.     T69.
55.    T72.
56.     T1665.
57.    See the defendant’s written submissions, section G, Post Operative Discussions, para 7.
58.    Report 17 October 2000, D8.
59.    See the defendant’s written submissions “D. Advice of Risk” at page 3, para 13.
60.     D35 and Professor Green at T660 and T662.
61.    Professor Tatoulis T1194 and D63.
62.    T1367.
63.     D79 and D15.
64.   In putting the matter in that way, I do not mean to suggest that had the precise extent of the calcification as found during the operation been known before the operation, the onus on the defendant to give a warning of the risk, and the context of any warning, would have been any different.
65.    I do not overlook that the plaintiff’s evidence was not consistent on this topic, and he said on one or two occasions that if a warning of the risk had been given, he would have looked for another surgeon to perform the operation (T228). But that was never pleaded, and the plaintiff’s case as finally put by Mr Clayton QC was that he would not have had the operation at all.
66.    Statement of claim, para 15. See also statement of claim, para 13.
67.    T1698.
68.    T493.
69.    T495.
70.    T495.
71.   See Dr Berger’s evidence at 846.26; Professor Tatoulis in D8, pages 5-7 and T1237-1239; the defendant’s own evidence at T1655-1658; Dr Ayres’ evidence at T1882-1884; Professor Horowitz’s evidence at T1754-1758 and 1755.13; and Mr Ross at T1990.10.
72.    D66.
73.    See, for example, Professor Tatoulis at T1237.32.
74.    T1310.
75.    T1316.
76.    T1314.
77.    T466.
78.    T667.
79.    T877.28.
80.    See the evidence of Professor Tatoulis T1347-1348, Mr Knight T1660, 1697, Mr Stubberfield T1899, and Mr Ross T1988.
81.    T646.
82.    Report dated 9 April 2001, exhibit D8, page 3.
83.    T1379.
84.   Report dated 27 October 2000, exhibit D8, page 9.
85.    T1649-1650.
86.   This account follows the description in the report of Professor Tatoulis dated 27 October 2000, exhibit D8, page 9.
87.    Report dated 27 October 2000, exhibit D8, page 10.
88.    Mr Knight, T1640.
89.    It was suggested that the words “solution” and “slush” in this context meant something different, and the use by the defendant of both descriptions rendered this part of the defendant’s evidence unreliable. I am not satisfied that as a description of the material used for this purpose, there is any difference in meaning.
90.    As I explain below, the mesne period is of the order of 40 minutes.
91.    T1218.
92.    T1385.
93.    Report dated 27 October 2000, exhibit D8, page 10.
94.    Professor Tatoulis, who had seen Professor Carpentier perform surgery, described him as enjoying a “prestigious reputation, one of the foremost valve surgeons, similar to Dr Starr and Dr David. His great expertise was the involvement of the valve repair techniques and also an inventor of a number of heart valves which have been in use from about 1970 to the present day”.
95.    T1385.
96.    Plaintiff’s written submissions paras 146-160.
97.   See exhibit D81, being a statement of data extracted from records held by the Cardiac Surgery Research Centre, a division of Flinders Medical Centre.
98.    T1222 and 1357.
99.    T1397.
100.    P5/35.
101.    D53.
102.    T1715.
103.    Defendant’s written submissions, section H 5, para 7.
104.    Report dated 27 October 2000, exhibit D8, page 10, para 15.7.
105.    T1901.
106.    T1991.
107    T1642.
108.    T814.
109.    T492.
110.    T699.
111.    T548.
112.    Ibid 5^th edition 1990, exhibit D40, and see D32.
113.    T1658-1659.
114.    T1437.
115.    T1386.
116.    Those who are mentioned in evidence in this connection were Dr Tyrone David, Dr Westerby, Dr O’Brien, Professor Carpentier and Professor Starr.
117.    T1899.
118.    T1989.
119.    Report of 27 October 2000, exhibit D8, page 11.
120.    See the evidence of the defendant at T1798:
“We flushed a little more than we would have normally done at the end because of our concern about debris.”
And see the defendant’s written submissions, section H 4, para 6.

[2002] SASC 310

20 September 2002