Polsen v Harrison (No. 8)

[2023] NSWSC 764

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Polsen v Harrison (No. 8) [2023] NSWSC 764

Hearing dates:

15-19, 22-26 February 2021, 2 March 2021, 6-10 December 2021, 13-16 December 2021, 16-20 May 2022, 9 June 2022, 25-26 October 2022

Date of orders:

06 July 2023

Decision date:

06 July 2023

Jurisdiction:

Common Law

Before:

Lonergan J

Decision:

(1) Verdict and judgment for the defendant.

(2) The plaintiff to pay the defendant’s costs of the proceedings.

Catchwords:

PROFESSIONAL NEGLIGENCE – medical negligence – bariatric surgery – whether failure to warn of risks – s 5O Civil Liability Act standard of care for professionals – where s 5O defines the liability inquiry – s 5P Civil Liability Act – warnings are treated differently – warnings given were comprehensive – plaintiff unreliable – s 5I inherent risk – verdict for defendant

Legislation Cited:

Civil Liability Act 2002 (NSW)

Evidence Act 1995 (NSW)

Cases Cited:

Dean v Pope [2022] NSWCA 260

Paul v Cooke (2013) 85 NSWLR 1167; [2013] NSWCA 311

Polsen v Harrison [2020] NSWSC 1167

Polsen v Harrison (No. 4) [2021] NSWSC 251

South Western Sydney Local Health District v Gould (2019) 97 NSWLR 513; [2018] NSWCA 69

Sparks v Hobson; Gray v Hobson (2018) 361 ALR 115; [2018] NSWCA 29

Category:

Principal judgment

Parties:

Katrina Marie Polsen (Plaintiff)
Dr Harrison (Defendant)

Representation:

Counsel:
AJ Bartley SC / JA Hillier (15 February 2021 to 2 March 2021); M Cranitch SC / JA Hillier (6-16 December 2021; 16-20 May 2022, 9 June 2022 to 25-26 October 2022) (Plaintiff)
M Windsor SC / M Hutchings (Defendant)

Solicitors:
Commins Hendriks (Plaintiff)
HWL Ebsworth (Defendant)

File Number(s):

2016/204451

Publication restriction:

Nil

Judgment

1. On 22 July 2013 Katrina Polsen (“Katrina”) underwent a surgical procedure performed by the defendant, Dr Harrison, to manage her morbid obesity. She had a difficult and complex post-operative course involving many admissions to hospital and multiple surgical procedures over the following five years. Katrina alleges that she is unable to work and that her life and enjoyment of it have been significantly diminished because of the negligence on the part of Dr Harrison in his performance of that operation and his subsequent allegedly inadequate and delayed treatment.

2. Katrina’s primary case is not that Dr Harrison should never have selected her as an appropriate candidate for the procedure, but that given her comorbidities of long-term alcohol abuse and liver dysfunction, she should have been counselled and the elective non-urgent surgery delayed. Alternatively, it is alleged that Dr Harrison did not properly warn her of the risks and if he had, she would not have gone ahead with the procedure.

3. Katrina’s alternative case is that Dr Harrison’s technical performance of the operation and initial management was negligent, and that negligence caused or materially contributed to a gastric leak at the site of the surgery, causing ongoing illness and the need for the further surgeries. In addition to and as part of that alternative case, Katrina says that Dr Harrison failed to detect that she had a “gastric leak” (or, more correctly, a staple line leakage,) when he should have, and that for a prolonged period, he failed to properly treat the leak, that he should have referred her to a tertiary institution or an appropriately qualified surgical team, and that his failures to do so were negligent and caused her to continue to suffer serious illness and distress.

4. Dr Harrison says that his treatment was not negligent and that he took appropriate steps to address the risk of harm: s 5B Civil Liability Act (2002) NSW (“the Act”) and that he does not incur a liability in negligence arising from the provision of his professional services, because expert evidence that he has tendered and led at trial establishes that at the time the services were provided, he acted in a manner that was widely accepted in Australia by peer professional opinion as competent professional practice: s 5O of the Act.

5. Dr Harrison also pleads in his Defence that the complications and post-operative course that Katrina had was consistent with the inherent risks of the procedure and so s 5I of the Act provides an additional basis for why he is not liable. He pleads that all the risks were explained to her, and that the evidence does not establish that anything he did or failed to do was a necessary condition of the harm she suffered and so s 5D of the Act has not been satisfied, and her claim fails on that additional basis.

The pleaded case

6. The Statement of Claim initially filed in the District Court on 6 July 2016 underwent multiple revisions, one of which was the subject of a contested pre-trial application in May 2020 which was granted: Polsen v Harrison [2020] NSWSC 1167 at [87] to [125], (the amended version being filed on 1 September 2020), and another which was the subject of an application to further amend on day three of the trial 17 February 2021, which was refused: Polsen v Harrison (No. 4) [2021] NSWSC 251.

7. Leave was however given by me at trial to amend the December 2020 iteration of the Further Amended Statement of Claim to include the necessary pleadings of the risk of harm and to identify the alleged scope of the defendant’s duty of care, because neither of these essential matters had been included. These omissions were remedied in the Second Further Amended Statement of Claim filed on 19 September 2021, between days 11 and 12 of the trial.

8. The scope of the duty of care was identified at par 2AA:

“2AA   The scope of the First Defendant’s duty of care to the Plaintiff required the First Defendant to:

a)   provide advice and treatment to the standard of a reasonably competent medical practitioner practising as a General Surgeon; and

b)   take steps that a reasonably competent medical practitioner practising as a General Surgeon would take to reduce the risk of foreseeable injury to the Plaintiff.”

9. The risk of harm was pleaded as follows:

“14E.   The risk of harm comprised:

a.   The Plaintiff would undergo the surgery on 22 July 2013 when she should have been excluded from it;

b.   The risks of complications from the lap sleeve gastrectomy;

c.   The risk of gastric sleeve leak;

d.   The specific risks of complications from the lap sleeve gastrectomy associated with the Plaintiff’s alcohol consumption and methotrexate consumption;

e.   Complications arising from a gastric sleeve leak;

f.   Complications arising from an inadequate or inadequately treated gastric sleeve leak;

g.   Complications arising from the untreated or inadequately treated haematoma(s);

h.   Complications arising from untreated or inadequately treated fistula;

i.   Complications arising from the untreated or inadequately treated infection.

14EA.   It was reasonably foreseeable to the Defendant that if he did not provide advice, information, diagnosis and treatment in accordance with the standards of a medical practitioner practising as a General Surgeon then there was a risk the Plaintiff would suffer harm.”

10. The particulars of negligence were pleaded in par 17 as follows:

1. Particulars of Negligence of the First Defendant

a.   Failure to carry out gastric sleeve procedure on the Plaintiff on 22 July 2013 in a competent manner.

b.   Failure to diagnose and/or recognise the complications suffered by the Plaintiff.

c.   Failure to advise or adequately advise the Plaintiff regarding the treatment to be performed on 22 July 2013.

d.   Failure to advise or adequately advise the Plaintiff as to alternative treatments available other than the gastric sleeve procedure.

e.   Failure to treat the complications suffered by the Plaintiff in a competent manner.

f.    Failure to refer the Plaintiff for specialist medical attention at an appropriate time.

g.   Failure to diagnose and/or manage the Plaintiff’s condition whilst under the First Defendant’s care.

h.   Failure to leave an adequate amount of stomach at the areas of the incisura when performing the gastric sleeve procedure on the Plaintiff.

1. Failure to diagnose and/or manage distal stricture at the incisura when performing the gastric sleeve procedure on the Plaintiff on 22 July 2013.

j.    Creation of a distal stricture at the incisura when performing the gastric sleeve procedure on the Plaintiff on 22 July 2013.

k.   Failure to appreciate the distal stricture at the incisura of the Plaintiff on or about 31 July 2013 when performing gastroscopy.

l.    Failure to diagnose and/or recognise gastric sleeve leak of the Plaintiff.

m.  Failure to properly and/or adequately treat the Plaintiff’s gastric sleeve leak.

n.   Failure to diagnose and/or recognise development of fistula in the Plaintiff.

o.   Failure to properly and/or adequately treat the Plaintiff’s fistula.

p.   Failure to provide proper and/or adequate treatment to the Plaintiff’s fistula by insertion of a stent on or about 1 August 2013 and thereafter.

q.   Failure to transfer the Plaintiff to a specialised Bariatric Surgical Unit in a major teaching hospital when it was appropriate to do so.

r.    Failure to refer the Plaintiff to an expert gastroenterologist and experienced bariatric surgeon when it was appropriate to do so.

s.   Failure to perform gastric bypass on the Plaintiff on or about 12 November 2013 when it was appropriate to do so.

t.    Failure to properly consider the Plaintiff’s alcohol intake prior to the gastric sleeve surgery.

u.   Failure to consider the Plaintiff’s high GGT levels prior to the gastric sleeve surgery.

1. Failure to properly consider the Plaintiff’s high GGT levels prior to the gastric sleeve surgery.

w.  Failure to consider that the Plaintiff’s GGT levels on:

a.   15 January 2013;

b.   5 February 2013;

  c.   25 March 2013; and

  d.   27 May 2013.

  as being a contraindictor for the gastric sleeve surgery.

1. Failure to exclude the Plaintiff as a candidate for the gastric sleeve surgery procedure on the basis of her alcohol dependence and/or consumption and/or pre-surgery medication of methotrexate.

y.   Failure to refer the Plaintiff to an educational course prior to the gastric sleeve surgery.

z.   Failure to ensure the Plaintiff underwent appropriate psychiatric and psychological assessment and counselling prior to the gastric sleeve surgery.”

11. The sole defendant at trial was Dr Harrison, proceedings against Wagga Wagga Base Hospital (“WWBH”) having been discontinued before trial. References in the pleadings to the “first defendant” are references to Dr Harrison.

Relevant medical terms

12. The surgery undertaken is called a “gastric sleeve” or “sleeve gastrectomy”. It is a surgical weight loss procedure involving removal of a large part of the stomach, leaving a narrow “sleeve”. This has the dual effect of reducing both stomach size (by about 80%) and reducing hunger signals due to the reduction in a substance called ghrelin, which is a hormone that sends hunger signals to the brain.

13. Bariatric surgery is the medical term used for various surgical procedures that relate to weight loss, including gastric bypass and sleeve gastrectomy.

14. Gastric bypass surgery, also known as “Roux-en-Y”, is a type of weight loss surgery that involves creating a small pouch from the stomach and connecting the newly created pouch directly to the small intestine.

15. Gastric sleeve leak or staple line leakage is a known complication of both gastric sleeve and Roux-en-Y gastric bypass surgery. In both surgeries staples are used as a temporary “glue” to create a watertight connection of the surgical areas. Over time, the body’s healing power takes over for the staples to create a seal over the staples. If the body’s healing power does not form a complete seal, or if the staples come apart, then leakage of fluid from within the bowel or stomach occurs.

Factual background

16. Katrina’s evidence in chief was given by way of sworn statements dated 9 October 2020, 14 December 2020 and 21 December 2020. [1] The statements were supplemented by short oral evidence regarding current employment status. She was cross-examined over some 8 days with regular breaks. Given the width of the allegations and Katrina’s pre and post-surgery medical history and some reliability, credibility and recollection issues, a comprehensive cross-examination was necessary, and a detailed recount of the relevant facts is required.

    1. Exhibit A; Statement of Katrina Polsen, 9 October 2020; Exhibit B, Statement of Katrina Polsen, 14 December 2020; Exhibit C, Statement of Katrina Polsen, 21 December 2020

17. Where there is a contradiction in recollections or records between Katrina and other evidence I have incorporated my findings into this recount, and explained the basis of the conclusion reached on any relevant fact in issue.

18. Because Katrina’s case proceeds on the basis that Dr Harrison’s failures to treat her were ongoing and his consideration of her emerging clinical course inadequate, it is necessary to comprehensively refer to the whole of the course treatment and decision making over the years that Katrina was under Dr Harrison’s care.

19. Katrina was born in Wagga Wagga (“Wagga”) in 1972 and attended Wagga High School until the age of 14 when she left to care for her grandmother. She worked full-time as a waitress and cook at the Northside Centre in Wagga until 1991 when she became pregnant with her first child, Wade.

20. Following the birth of Wade in 1991 Katrina ceased work. In 1993, she married Richard Polsen and had two further children, Cody and Tahlea, born in 1993 and 1995 respectively. She said that during each pregnancy she gained weight. [2] Each child was born by caesarean section.

    2. Tcpt, 24 February 2021, p 263(4)

21. Following the death of her mother in 2000, Katrina was prescribed an antidepressant for approximately six months. About that time she had a hysterectomy following which she gained approximately 20kgs. [3]

    3. Tcpt, 24 February 2021, p 262(25)-(32)

22. Between 2001 and 2012/2013, Katrina said that her weight continued to increase despite dieting, exercise and medication prescribed by her general practitioner. She was prescribed duromine which she took for about 12 months and during that period was able to lose about 20kg. [4]

    4. Exhibit A, Statement of Katrina Polsen, 9 October 2020, par 29; Tcpt, 24 February 2021 p 263(16)-(24)

23. In 2007 Katrina had surgery for adhesions. She also had difficulties with joint pain and stiffness in her hands in 2007 and in 2008 was referred to a rheumatologist, Dr Bleasel, given her symptoms and family history of rheumatoid arthritis.

24. By 2009 Katrina weighed approximately 120kgs (18 stone 12 pounds). [5] At a height of 154cms (five foot one inch), this meant that her body mass index (BMI) was 49.3, placing her in the morbidly obese category.

    5. Tcpt, 24 February 2021, p 268(10)

25. Since 2010 Katrina had been employed on a full-time basis as an assistant manager and loans officer at Cash Converters in Wagga and in 2013 was earning approximately $744.10 net per week. [6]

    6. Tcpt, 24 February 2021, p 257(44) and p 301(13) (not $800.00 per week as alleged in the Statements of Particulars)

26. In July 2011 at a review with Dr Bleasel, Rheumatologist, Katrina complained of hand pain, stiff joints and low back and neck pain. She also mentioned that she was “thinking about” weight loss surgery. She saw Dr Bleasel again in November 2012. A strong family history of rheumatoid arthritis was noted as was the fact that Katrina had not had any of the further investigations Dr Bleasel had recommended. [7]

    7. Exhibit 45, Report of Dr Bleasel, 19 November 2012

27. Katrina became concerned about the health risks associated with her weight including heart disease, increased blood pressure, stroke and early death. [8] In early 2013 she met a friend, Josie, who had undergone bariatric sleeve surgery by Dr Harrison and had lost a lot of weight. Katrina thought she “looked fantastic”. [9] In this context, Katrina decided to contact Dr Harrison’s rooms to make enquiries as to weight loss surgery. During the initial contact with Dr Harrison’s rooms she was told that she would need to have an assessment by a nurse and a dietician and attend one of Dr Harrison’s seminars before having a consultation with Dr Harrison. [10]

    8. Tcpt, 24 February 2021, p 263-266

    9. Tcpt, 24 February 2021, p 266(41) to p 269(21)

    10. Tcpt, 25 February 2021, p 310(18)-(42)

28. Katrina asserted in cross-examination that she had made no inquiries or investigations on the internet about weight loss surgery before consulting Dr Harrison’s rooms but notes made by Dr Harrison and Nurse Aicken at the time they each consulted with Katrina recorded that she told them she had done “internet research”. [11] I find that Katrina in fact said she had done internet research as part of her deliberate presentation to those people as knowledgeable about the surgery she was determined to have. Two other friends of Katrina’s who also lived in Wagga had undergone bariatric surgery, however Katrina said that she only became aware of this after her consultation with the nurse at Dr Harrison’s rooms in March 2013. [12] I do not accept that is true and that Katrina’s recollection as to this detail is mistaken and it was she who raised with the nurse that she knew that these other people had had the surgery.

    11. Tcpt, 25 February 2021, p 311(12)-(14)

    12. Tcpt, 25 February 2021, p 329(32) to p 331(17)

29. Katrina’s daughter Tahlea gave evidence that her mother told her about a conversation she had with her friend Josie and that her mother subsequently saw a nurse and attended a seminar conducted by Dr Harrison. Tahlea agreed in cross-examination that her mother wanted to have the surgery even before attending the seminar with Dr Harrison because Josie had had it, and looked good after. [13]

    13. Tcpt, 10 December 2021, p 809(9)

Alcohol consumption

30. Katrina alleged in her statements prepared for these proceedings and in her oral evidence that she was consuming a bottle of wine a night and drinking very heavily on the weekends in the period before her surgery. A key part of her case is that Dr Harrison did not have proper regard to that fact. However Katrina gave conflicting accounts about her alcohol consumption in 2013 to Dr Harrison and his staff and others, as well as conflicting evidence at trial in relation to her alcohol use in that period and what she recalls she told Dr Harrison and his staff about that.

31. Katrina said that she began drinking alcohol following the birth of Tahlea and that by 2007 she was drinking a glass of wine a couple of nights during the week and “more” on Fridays and Saturdays, [14] and that in 2011 she was drinking on average, one glass of wine per night. [15]

    14. Tcpt, 24 February 2021, p 271(5)-(7)

    15. Tcpt, 24 February 2021, p 277(10)

32. Katrina initially agreed in cross-examination that between July 2011 and November 2012 her alcohol intake had reduced:

“Q:   Certainly, do you recall whether the fact was that between July 2011 and November 2012, your daily alcohol intake had reduced?

A:   Yes.” [16]

16. Tcpt, 24 February 2021, p 285(14)-(16)

33. This would be consistent with what Katrina told Dr Bleasel was the position by November 2012. However, a little later in her cross-examination she stated that her alcohol intake increased during this period:

“Q:   You would agree would you not, Mrs Polsen, that between July of 2011 and November of 2012 you had reduced the amount of alcohol that you drank?

A:   No. I was actually drinking more.” [17]

17. Tcpt, 25 February 2021, p 307(47)-(49)

34. Later in her cross-examination Katrina conceded that she did not know how much she was drinking in 2011 and 2012, but that her alcohol intake increased in 2013 due to being stressed at work. [18]

    18. Tcpt, 26 February 2021, p 435(14)-(24)

35. Dr Bleasel, in her report dated 16 July 2011 recorded that Katrina told her in July 2011 that she was drinking 20g to 30g of alcohol a day (equivalent to 2 to 3 standard drinks a day). [19] In her 19 November 2012 report Dr Bleasel observed:

    19. Exhibit 45, Report of Dr Bleasel, 16 July 2011

“fortunately she has reduced the amount of alcohol she drinks”. [20]

20. Exhibit 45; Report of Dr Bleasel, 19 November 2012

36. Dr Rees, Psychiatrist, in February 2017 recorded the following about what Katrina told her about alcohol use:

“She denied any problems with drugs in the past or alcohol problems. This was re-checked related to the notes of Dr Chow considering whether she may have alcoholic liver cirrhosis and she denied that she has used alcohol excessively in the past.” [21]

21. Exhibit 60, Report of Anne-Marie Reese, 1 March 2017, p 6

37. Katrina’s husband Richard, daughter Tahlea and sons Cody and Wade gave remarkably similar evidence regarding Katrina’s alcohol consumption in their statements all of which were dated 9 October 2020. That evidence was to the effect that Katrina’s drinking involved a bottle of wine a night and heavy drinking on weekends involving wine and vodka Red Bull. I have doubts about the reliability of this evidence. There was no acceptable clarity or specificity as to the time period(s) or the days on which this consumption occurred. Richard was a truck driver who stated that he was often away for work during the week and so it was difficult to see how his evidence was based on first-hand observations.

38. Unfortunately I have concluded that Katrina’s evidence about what she said about her alcohol intake to Dr Harrison and Nurse Aicken and the dietician Ms Howard, what she alleged about that in her statements prepared for these proceedings, and her evidence before this Court, was and is wholly unreliable on the question of her alcohol intake and what she told people about her alcohol intake. If what Katrina’s family said about her alcohol consumption applied to March, April, May or June 2013, what Katrina told Dr Harrison and his staff about her alcohol consumption was untruthful. I accept that Dr Harrison, Nurse Aicken and Lisa Howard recorded what they were told by Katrina about her alcohol consumption in March, April and May 2013 when they each discussed this issue with her. I accept their notes were made contemporaneously and accurately record what she told them. It is not now possible to conclude what Katrina’s true alcohol consumption was. I suspect Katrina lied to herself about this and also lied to others, including her lawyers, and other doctors such as Dr Bleasel about the true position.

Consultation with Nurse Aicken – Bariatric Nurse – 13 March 2013

39. On 13 March 2013 Katrina consulted Dr Harrison’s bariatric nurse, Ms Aicken. Katrina alleged in her statement that in the years prior to consulting with Nurse Aicken she would drink a bottle of wine most weeknights and drink “very heavily” on weekends, including both wine and spirits and would become quite intoxicated. [22] (Emphasis added).

    22. Exhibit A, Statement of Katrina Polsen, 9 October 2020, pars 21-24

40. During cross-examination on this issue Katrina said that she told Nurse Aicken that she “was” drinking at least a bottle of wine a night, but that she did not tell her about her heavy drinking on the weekends. [23] This was despite the fact that Katrina knew that she had to tell the nurse the truth about what she was drinking. [24]

    23. Tcpt, 25 February 2021, p 316(37)

    24. Tcpt, 25 February 2021, p 316(39)

41. However, later in the cross-examination Katrina agreed that she had in fact told Nurse Aicken that she was only having one alcoholic drink a day, being a glass of wine. [25]

    25. Tcpt, 25 February 2021, p 327(21)

42. Nurse Aicken’s notes refer to a history being given by Katrina of one drink per day. [26] Nurse Aicken explained in her evidence that this was a reference to one standard drink per day. [27]

    26. Exhibit 8, Statement of Katrina Joy Aicken, 19 November 2020, Annexure A

    27. Tcpt, 16 December 2021, p 1104(6) to p 1105(5)

43. Katrina alleged in her statement that Nurse Aicken did not discuss the weight loss surgery nor provide any advice or education as to eating or diet or reducing her alcohol intake. [28] I do not accept this evidence is true given the notes made by Nurse Aicken at the consultation, her statement dated 19 November 2020 and Nurse Aicken’s evidence as to her usual practice, which I accept as truthful.

    28. Exhibit A, Statement of Katrina Polsen, 9 October 2020, par 35

44. Nurse Aicken carried out a physical examination and recorded Katrina’s weight as 115kg, waist measurement of 118cm and height of 154cm. This comprised a BMI of 48.5. [29] She recorded that Katrina told her that she was consuming “lots of diet coke and other soft drinks (at least 600mls) each day”. [30] To the extent Katrina claimed that she told Nurse Aicken that she “was drinking at least a 3 litre bottle a day, well, or I was drinking a lot of diet coke”, [31] I do not accept that Katrina told Nurse Aicken she was drinking 3 litres of diet coke a day. I am confident that if she had, the assertion of 3 litres of coke per day would have been recorded by Nurse Aicken, not, “at least 600mls”.

    29. Exhibit 8, Statement of Katrina Joy Aicken, 19 November 2020, par 6

    30. Exhibit 8, Statement of Katrina Joy Aicken, 19 November 2020, par 6

    31. Tcpt, 25 February 2021, p 327(1)

45. Nurse Aicken recorded that Katrina told her that she knew Josie Lowing, Mary Gist, Belinda Oakman and Bobby “someone” who had had bariatric surgery and that Katrina told her she had done “lots of research on the internet” about bariatric surgery. Katrina did not recall giving these names to Nurse Aicken. [32] Katrina recollected very little of this consultation and I consider that what she does recollect is so limited that it is an inaccurate reflection of what she told Nurse Aicken and what was in fact discussed with her.

    32. Tcpt, 25 February 2021, p 331(17)

46. Nurse Aicken stated that Katrina told her that she had already been to a seminar in Sydney about bariatric surgery and that she was going to attend the seminar conducted by Dr Harrison on 11 April 2013. [33] Katrina denied that she ever went to a seminar in Sydney. Given Katrina’s very poor recollection I could not assess whether this was true or not, but I consider it most unlikely Nurse Aicken would include such a specific detail in her records unless Katrina had told her that. However I find nothing turns on this.

    33. Exhibit 8, Statement of Katrina Joy Aicken, 19 November 2020, pars 10-11, Annexure A

47. Nurse Aicken’s usual practice was to discuss the differing results that may be expected following the surgery and the need to make lifestyle changes and follow good eating habits. [34] I accept she followed her usual practice with Katrina and to the extent Katrina asserts that there was “no discussion” about diet and the need to change her diet, I reject Katrina’s evidence.

    34. Exhibit 8, Statement of Katrina Joy Aicken, 19 November 2020, par 13

48. Nurse Aicken said in her statement that during the consultation she provided Katrina with the four-page information sheet published by the Royal Australasian College of Surgeons (“ACS”) titled “Weight Loss Surgery” and that it was her practice to encourage the patient to read it carefully and to contact her if they had any questions. [35] This information sheet covered the risks and benefits of bariatric surgery and set out examples of poor candidates for bariatric surgery, which included those with an addiction to alcohol or drugs. The sheet also set out the possible complications of bariatric surgery which included general surgical risks and specific risks of bariatric surgery. [36] It is, in my view, a clear and comprehensive document and a copy of it is appended to this judgment given the critical material it contains. I am satisfied that the document was in fact provided to Katrina and some of its key points referred to by Nurse Aicken in the consultation.

    35. Exhibit 8, Statement of Katrina Joy Aicken, 19 November 2020, par 17

    36. Exhibit 8, Statement of Katrina Joy Aicken, 19 November 2020, Annexure B

49. The “specific risks of bariatric surgery” listed in the ACS document were:

·  Poor healing, gastric pouch blockage, or damage to the pouch if the patient ignores postoperative diet instructions

·  Vomiting; severe and intractable vomiting is uncommon

·  Poor weight loss if the gastric pouch is too large

·  Persistent abdominal pain

·  Intolerance to dairy foods

·  Incisional hernia or internal hernia, which require prompt surgical treatment.

·  Seroma, a collection of serum (the clear fluid of blood), which tends to fill any open space in a wound; a seroma may need to be drained

·  Heart arrhythmia

·  Inflammatory hepatitis, a liver problem caused by rapid weight loss

·  Malnutrition, which can cause nutritional deficiency diseases such as scurvy, osteoporosis, anaemia, beri beri, pellagra or kwashiorkor or, some patients will need to take life-long vitamin supplements

·  Loss of muscle mass

·  Depression

·  About one or two in every 10 patients will need some type of corrective procedure or surgery to treat complications

·  About three in every 10 patients develop gallstones during the first few months after bariatric surgery. While substantial weight loss does increase the risk of gallstones, obesity poses a greater risk

50. Also relevantly listed is the risks specified of Roux-en-Y gastric bypass:

·  As the stomach can no longer regulate the amount of food entering the small intestine, a large meal will flood the intestine and can cause dizziness, abdominal cramping, pain, nausea and diarrhoea. This is called “dumping syndrome”. Lying down slows the passage of food and should ease symptoms in 30 to 60 minutes

·  See page of gastrointestinal fluids through the sites of surgery to the stomach or small bowel (anastomotic leaks); this may require further surgery and a longer hospital stay

·  Pneumonia (lung infection), which requires emergency hospital treatment

·  Acute distention of the lower part of the stomach

·  Stomal stenosis, an abnormal narrowing of the intestine where it is stapled to the gastric pouch

·  Bowel obstruction

·  Gallstones

·  Marginal ulcer, a breakdown of tissue at the junction of the gastric pouch and intestine, caused by stomach acid

·  Persistent constipation or diarrhoea

·  Further surgery to treat a complication

·  Risk of death varies from about one in 1,000 to one in 200 (depending on the health of the patient). It may rise to one in 100 for some patients who smoke or have chronic medical conditions

51. Katrina conceded in cross-examination that she signed her second statement without reading Nurse Aicken’s statement. [37] This is significant because Katrina’s second statement comprises a series of responses to Nurse Aicken’s statement. This leads me to hold a concern that either the statement does not truthfully reflect Katrina’s recollection as at November 2020 of the consultation with Nurse Aicken, or Katrina did not fully engage her mind in the statement preparation exercise, or her recollection is so poor that she did not recall that two months before she gave evidence and was cross-examined in February 2021 that she had in fact read Nurse Aicken’s statement and prepared and signed her statement in response. Whatever reason applies adds to my concerns about Katrina’s overall reliability in her account.

    37. Tcpt, 25 February 2021, p 323(8)

The “Information Session” on 11 April 2013 presented by Dr Harrison and attended by Katrina

52. On 11 April 2013 Katrina attended a seminar presented by Dr Harrison at a club in Wagga. The education seminars were regularly conducted by Dr Harrison with other members of the multi-disciplinary team. Dr Harrison stated that the purpose of the seminar was to ensure anyone contemplating surgery is well-informed. [38]

    38. Exhibit 3, Statement of Dr Richard Harrison, 20 November 2020, par 16

53. I am of the view that such a seminar has a limited role on the question of patient education and warning of risks because the setting - a hall with no direct one-on-one contact between the presenters and the patient unless sought out at the end - means that there can be no clarity as to what parts of the seminar the potential patient was present, or could or did see or hear, and no way of checking their understanding of the content. I view it as an adjunct only to the other very comprehensive information discussed with Katrina and provided to her in written form by Nurse Aicken, Ms Morrow the dietician, and Dr Harrison in their consultations with her in March and May 2013.

54. In her statement Katrina alleged that she did not recall any PowerPoint presentation at the session and asserted that Dr Harrison did not speak about patients who were not suitable candidates for surgery or the circumstances in which a person would not be considered a suitable candidate for the surgery. [39] In cross-examination however Katrina acknowledged that she “must have” seen the slides and alleged that she did tell her legal representatives that she had seen the PowerPoint slides, [40] but that she did not remember much from the seminar and had no memory of the information set out in the PowerPoint presentation by the time of her cross-examination in February 2021. [41]

    39. Exhibit A, Statement of Katrina Polsen, 9 October 2020, par 41

    40. Tcpt, 25 February 2021, p 350(7)-(23)

    41. Tcpt, 25 February 2021, p 352(25)

55. I accept Dr Harrison’s evidence set out in his statement and further outlined in cross-examination as to what he did present at the seminar, but this does not remove or modify his duty to warn Katrina of relevant risks in person in the consultation setting and ensure she has received the necessary information. I will return to this subject when I deal with the evidence of the liability experts.

Consultation with Lisa Howard (nee Morrow), a dietician attached to Dr Harrison’s practice – 10 May 2013 Consultation

56. On 10 May 2013 Katrina attended a consultation with Lisa Howard, an accredited dietitian associated with Dr Harrison’s Practice. Ms Howard was part of the multi-disciplinary team assisting with the pre and post-operative management of Dr Harrisons’ bariatric surgery patients. [42] “Shaping Solutions” where she worked was located in the same building as Dr Harrison’s rooms.

    42. Exhibit 2, Statement of Lisa Howard, 1 December 2020, par 2

57. Ms Howard had no recollection of the consultation with Katrina in 2013 and prepared her 2020 statement based on her usual practice. She stated that her consultations with patients contemplating bariatric surgery usually occupied about an hour. [43] This differed from Katrina’s assertion that this consultation was “ten to fifteen minutes” or that she “thought it was only about that long”. [44] It was evident from Katrina’s answers in cross-examination that she recalled very little of that consultation. I do not accept that Katrina has any reliable recollection of the length of the consultation.

    43. Exhibit 2, Statement of Lisa Howard, 1 December 2020, par 3

    44. Tcpt, 26 February 2021, p 443(15)-(29); p 484(20)

58. Ms Howard stated that in accordance with her usual practice, the first part of the consultation involved obtaining detailed information from Katrina about her medical history, her dieting and social history, her height and weight and current eating patterns. [45] During the consultation Ms Howard completed the “Bariatric Surgery Nutritional Assessment Form” (“the Form”) which is a very comprehensive document, thoroughly completed, addressing personal details, medical history, weight assessment, goal weight, dieting and weight, social history, physical activity and physical activity plan and smoking and alcohol.

    45. Exhibit 2, Statement of Lisa Howard, 1 December 2020, par 5

59. Katrina alleged in her statement that she told Ms Howard that she was drinking “a fair bit” [46] and that she told Ms Howard that she was drinking at least a bottle of wine a night and drinking on the weekends. [47]

    46. Tcpt, 26 February 2021, p 459(49)

    47. Tcpt, 26 February 2021, p 460(6)

60. Ms Howard’s notes record the following: “alcohol: every night, 2 cans spirits or 1 to 2 glasses of wine”. [48] I have no reason to doubt that Ms Howard accurately recorded what Katrina told her. I do not accept that Katrina told Ms Howard that she was drinking a bottle of wine a night and drinking “more” on the weekends.

    48. Exhibit 2, Statement of Lisa Howard, 1 December 2020, par 2

61. In cross-examination on 6 December 2021 Katrina admitted that she could not then recall her alcohol intake in March, April and May 2013, [49] but that she knew that by June 2013 she was in fact only drinking one glass of wine a night. [50]

    49. Tcpt, 6 December 2021, p 589(28)-(35)

    50. Tcpt, 6 December 2021, p 589(43)

62. The Form continues with a very detailed analysis of what Katrina told Ms Howard she was eating and drinking. Under the heading “Assessment” the following appears:

“Liquids: Inadequate H20. Excessive alcohol, juice, softdrink”; and

“Softdrink: 600mls bottle (diet) used to be 3 x 2L coke”. (Emphasis added).

63. The second part of the consultation involved Ms Howard educating the patient about the diet that she would need to adopt before and after the surgery and the changes that would need to be made to eating behaviours and lifestyle. Her practice was to tell the patient that the surgery was “just a tool” to help them lose weight, and that they would need to make the dietary and lifestyle changes to have a successful outcome.

64. Ms Howard stated that her usual practice was to provide the patient with handouts setting out information concerning what to expect with sleeve gastrectomy surgery, long term weight loss and maintenance and the diet to be adopted in the pre-operative period which included reference to Optifast products as well as the post-operative diet. [51] Her notes recorded the following:

    51. Exhibit 2, Statement of Lisa Howard, 1 December 2020, Annexure B

“Education Provided:

✓ 1. Booklet re Nutrition and the: Sleeve

✓ 2. Long term food and nutritional guidelines for sleeve gastrectomy/band

✓ 3. Metabolism and weight loss in relation to energy intake verses output.

Used examples based on diet history

✓ 4. Liquids which will impair weight loss

✓ 5. Importance of exercise after surgery

✓ 6. Alcohol & kilojoules & the effect on weight loss

✓ 7. Non-hungry eating and psychological aspects associated with weight

gain and dieting.

✓ 8. Two weeks pre-op Optifast stage

✓ 9. Post-op nutrition up to wk 4.

Other Assessment comments: Katrina’s metabolism would most likely be very slow 2* skipping BF [breakfast] + no exercise. Katrina also appears to consume excess kj via fluid form and appears to be comfort/emotional eater w/ nibbling ++ I D/W Katrina the importance of regular meals + planning and to make dietary + lifestyle changes post op to be successful long term. Also D/W Katrina that she may need to deal w/ reason she is comfort eating post op as they may not “go away” w/ wt loss. Will most likely require support post op.”

65. Katrina asserted in her statement that Ms Howard did not discuss the weight loss surgery, nor provide any advice or education as to eating or dieting or reducing her alcohol intake and that she was only advised to try walking and swimming. [52] I reject Katrina’s evidence to that effect as unreliable. The comprehensive assessment notes, combined with Ms Howard’s evidence about her usual practice, satisfy me that not only were those matters discussed, they were discussed in detail, and the consultation likely took one hour or very close to that length of time.

    52. Exhibit A, Statement of Katrina Polsen, 9 October 2020, par 39

66. Katrina also claimed that she did not receive any handouts from Ms Howard, [53] although she recalled being informed about the Optifast diet and recalled being aware of the post-operative diet including the fluid diet and puree diet but she could not recall if she was informed about these by Ms Howard. [54] I reject as unreliable Katrina’s evidence that she was not provided with the specified handouts, and conclude that the handouts identified and ticked in the records as given by Ms Howard were in fact given to Katrina.

    53. Exhibit C, Statement of Katrina Polsen, 21 December 2020, par 6

    54. Tcpt, 26 February 2021, p 476(32) to p 478(5)

65. One handout was titled “What to Expect Sleeve Gastrectomy - an Overview”. The first part of the document stated:

“The Sleeve Gastrectomy is a restrictive weight loss operation, which if used correctly will assist you in achieving your goal for weight loss.

The outside part of the stomach is removed and the shape of the stomach is changed from a sac to a long narrow tube.

The gastric volume is reduced by 80%. Therefore you will feel full with ¼ of your current food intake.

How will Sleeve Gastrecomy help me to lose weight?

Sleeve gastrectomy will help you in 2 ways:

By helping you feel satisfied with a smaller amount of food as your new stomach is much smaller – its volume is about 20% of your original stomach.

The outside part of the stomach which produces the hunger hormone Grehlin is removed resulting in a initial profound loss of appetite.

The restrictions in total food volume results in reduction in total energy intake, hence your body is forced to use its own stored energy and therefore weight loss occurs.

Your Sleeve will help you to eat less food, and still be satisfied.

                                Less food = weight loss

This operation is not a quick fix or a magic wand.

You should think of it as a tool to help you with your weight loss journey. For best results you will still need to make changes to your lifestyle and eating patterns. But having a sleeve gastrectomy can help to make these changes.” (Emphasis in the original).

68. This is followed by a very comprehensive nutrition program with explanations, guides about what and when to eat and the need to exercise, together with meal plans and recipes for weeks 1 to 2 and 2 to 4 weeks post-surgery.

Attendance at Wagga Wagga Base Hospital on 17 May 2013

69. On 17 May 2013 Katrina attended Wagga Base Hospital Emergency Department (“ED”) complaining of shortness of breath. As part of the history taken there as set out in the Discharge Summary, she told the ED staff that she was drinking three to four alcoholic drinks per night, [55] however there is no evidence that Dr Harrison or any of his staff saw that entry prior to the surgery which was performed at Calvary Riverina Private Hospital two months later.

    55. Exhibit 72, Defendant’s Supplementary Tender Bundle, p 3608

70. One possible explanation for this discrepancy is that Katrina was deliberately understating her alcohol consumption to Dr Harrison and his nurse and dietician so that Dr Harrison did not say that she could not have the surgery. On my assessment Katrina had decided the surgery was the solution to her weight issues and she did not want to be denied it, and was prepared to say whatever she thought she should say to Dr Harrison and his support staff to ensure she was given the surgery.

The consultation on 28 May 2013 between Ms Polsen and Dr Harrison

71. Katrina had one consultation with Dr Harrison before the surgery and this was on 28 May 2013. Dr Harrison’s evidence in chief was set out in his detailed statement of 20 November 2020. Dr Harrison said it was his usual practice prior to the consultation to review the referral letter (from Dr Bartusek), the notes made by Lisa Howard and Katrina Aicken, and any available pathology results. [56] I accept he did so in this case. The following chronology is taken from Dr Harrison’s records [57] unless otherwise indicated.

    56. Exhibit 3, Statement of Dr Richard Harrison, 20 November 2020, par 21

    57. Exhibit 3, Statement of Dr Richard Harrison, 20 November 2020

72. The referral letter from Dr Bartusek stated:

“Thank you for seeing Mrs Katrina Polsen, for an opinion and management. Wish to discuss further management for overweight and discuss option of bariatric surgery - gastric sleeve

Allergy History

Nil Known Severity: Not Established

Current Medication

Advantan Cream 1 mg/g 15 g [1]

Betaloc (Tablets) 50 mg [100] - 1 tab mane. - Rpt:3

Coveram 5 mg/10 mg Tablets [30] -1 daily po - Rpt:5

OxyContin Tablets (Controlled release tablets) 15 mg [28] - 1 tbl bd po

Panadeine Forte (Tablets) [50] - 2 tabs 6th hourly prn.

Valium (Tablets) 5 mg [50] -1/2 tbl bd po PRN

1-2 tbl nocte po PRN

Medical History

Rheumatoid Arthritis - awaiting review by Dr Jane Bleasel (2012)

Previous Helicobacter pylori - treated in 2012

HTN

Hysterectomy (preserved ovaries and cervix)

3x LSCS

4 x laparoscopies - found multiple adhesions

FHx of CRC - last scope 2012.”

73. Dr Harrison obtained a medical history from Katrina. She told him that she wanted gastric sleeve surgery. This is consistent with Katrina’s repeated acknowledgment in cross-examination that she wanted to have the gastric sleeve procedure because “that is what Josie had”. In accordance with his standard practice, Dr Harrison discussed the different types of bariatric surgeries available. [58] Katrina recalls little of the discussion about other procedures. It is very clear that she was determined to have the gastric sleeve procedure.

    58. Exhibit 3, Statement of Dr Richard Harrison, 20 November 2020, par 28

74. Also the other procedures were illustrated and explained in the Royal Australian College of Surgeons four-page “Weight Loss Surgery” document that I have found Katrina was given by Nurse Aicken in March 2013. In cross-examination Katrina acknowledged that she was “not interested” in having lap-band surgery and was aware of the complications that procedure had caused to her aunt. Katrina also confirmed that she knew about the Roux-en-Y at that time. [59]

    59. Tcpt, 25 February 2021, p 340(4)

75. Dr Harrison’s note of the consultation is as follows:

“All: Nil                

Meds: Atacand                                  115 kg

MTX [methotrexate]

Smoke: No

ETOH: 750 ml wine /n day (↓) H20 / diet coke

40 Cash converters

Husband - truck driver

- 3 kids 21, 20, 18

Seminar✓ Friends✓ Internet✓ KA✓ LM✓

Past hx: hysterectomy, Caesar No DM, OSA, HT

- AS BIG NOW AS EVER

↑ since hysterectomy

↑ 10 years

tried everything

- lost up 20 kg (diet, ↓ softdrink, walking)

- Duromine

no breakfast, "picker"

chicken, chocolate

Husband not present - initially resisted now supportive

considering OT for years + read widely

Catalyst friend Josie Lowing (+ others) esp watching her progress, counselling etc

Wants SLEEVE: read / several

aware bands, aware RYGB (routines)

Technique✓ TO / RTW ✓ Peri op routine / diet etc

Results - early results

Lack of LT WL data

- quoted ~ 60% / EBW ~ 1 yr NO GUARANTEES LIQUID CALORIES discussed esp above / ETOH

LT f/u ū results

R + C 1 - 2% leak / bleed outcomes

Re OT / Lap open / prolonged hospital stay

TPN / ICU / drains

DVT / pain / failure surg

OPTIFAST ✓Questions✓”

76. Dr Harrison stated that he followed his usual practice and informed Katrina that every surgery has risks and complications. This information included the following. There are two particular complications which he says he emphasised could result in hospitalisation, sometimes for extended periods of time. These complications were bleeding or a staple line leak. The risk of these occurring is 1 to 2%. There are plenty of other complications, but these are the two he would really worry about. The most feared complication is that of a leak and in his practice that risk is 1 in 100. If you get a leak, it does not occur at the time of surgery, but is a healing issue. [60]

    60. Exhibit 3, Statement of Dr Richard Harrison, 20 November 2020, pars 33-34

77. Katrina asserted in her statement that Dr Harrison did not discuss with her the risk of a leak following the surgery. [61] I consider that evidence to be unreliable and incorrect, rather than deliberately untruthful. I am satisfied that Dr Harrison discussed the risk of gastric leak in the detailed manner and terms set out in his statement:

“33. In accordance with my usual practice I advised Ms Polsen with words to the following effect: every surgery has risks and complications and this is no different. There are two particular complications which I emphasise which could result in hospitalisation, sometimes for extended periods of time. These complications are bleeding or a staple line leak. The risk of these occurring is 1 to 2%. There are plenty of other complications but these are the two we really worry about. The risk of bleeding is less than 1% but it usually happens while you are still in hospital. It occurs on the first night or the second day rather than in the operation. If we have to take you back to theatre we would perform keyhole surgery using the existing incisions. We try to identify the site of bleeding but it is not uncommon to have trouble identifying the exact site of bleeding. In some circumstances you may require an open procedure. You may need a blood transfusion if the bleed is significant.

34. I also advised with words to the following effect: the most feared complication is that of a leak and in our practice the risk is 1 in 100. If you get a leak it does not occur at the time of surgery, it is a healing issue. The classic timeframe for a leak is between day 10 and day 25. The hole is always small and invariably in the top part of your stomach. It is very rare for us to see a leak beyond that area. If you have a leak, you may have vague symptoms. You won't feel right. You should ring us as we lake any concerns seriously. We may run a series of tests and might scan you. If we find a leak, you will be admitted to hospital to deal with the leak. Rarely a leak requires re-operation but ii will require antibiotics, drips and tubes. You may need to be tube fed through your nose. You may need long term feeding through a tube or drip. A leak can lead to a prolonged hospital stay. You may need to go to intensive care. Readmission is not uncommon.

35. I further advised with words to the following effect - there are other complications as well such as DVT and pulmonary embolism but we have techniques to reduce the risk including with injections and stockings. You may also experience pain and the surgery may fail, meaning that you may not get the result you are looking for.”

61. Exhibit A, Statement of Katrina Polsen, 9 October 2020, par 48

78. Dr Harrison stated that he said on more than one occasion in the consultation that Katrina would need to reduce her liquid calories including from soft drink and alcohol as they were a significant contributor to weight gain. [62] Katrina claims that Dr Harrison did not tell her this, but it is clear from Katrina’s oral evidence that she had very little recollection of her consultation with Dr Harrison. I accept Dr Harrison’s evidence on this issue.

    62. Exhibit 3, Statement of Dr Richard Harrison, 20 November 2020, par 31

79. Dr Harrison advised Katrina that she could access her superannuation to fund the surgery. [63] Contrary to the implied criticism embedded in the references to this by senior counsel for the plaintiff, I see nothing sinister or of concern in this information being provided to a potential patient seeking surgery directed to improving the longevity and quality of life for a morbidly obese woman.

    63. Exhibit A, Statement of Katrina Polsen, 9 October 2020, par 47

80. At the conclusion of the consultation, Katrina signed a consent form for laparoscopic sleeve gastrectomy and laparotomy surgery dated 28 May 2013. Although she does not recall signing it, she acknowledged in cross-examination that it is her signature. [64]

    64. Exhibit 72, Defendant’s Supplementary Tender Bundle, p 1265; Tcpt, 6 December 2021, p 561(5) to p 562(20)

81. Dr Harrison wrote a letter to Katrina’s GP, Dr Bartusek on the day of the consultation which stated:

“I was pleased to see Katrina today. She looks well. She is 40, married, with three children, and weighs 115 kilos. She is of short stature and this gives her body-mass index of nearly 50. She does have hypertension but no other major comorbidities at this lime. She has been considering weight loss surgery for a number of years. She has considerable number of friends who have gone ahead with the surgery and she has been watching their progress carefully. She is presently as large as she has ever been. She has tried many conventional diets over the years with variable success but with no long-term durable weight maintenance. She has had problems with drinking up to 750ml of wine per day as well as soft drink. Both of these have been decreased, but I have reiterated the Importance of liquid calories with her today. After discussion of all the options, she wishes to undergo a sleeve gastrectomy. This is reasonable. She has a clear understanding of not only its technique but its perioperative returns and outcomes. We have talked about its results, both short and long term. She is aware of a lack of long-term weight loss data with this type of surgery. We have talked about the risk profile and the consequences if she would have a perioperative complication. I was impressed with her level of knowledge and I am happy to go ahead in the near future. I will let you know how we get on.” [65] (Emphasis added).

65. Exhibit 3, Statement of Dr Richard Harrison, 20 November 2020, Annexure I

Conclusion regarding pre-surgery advice

82. Katrina remembered almost nothing about her interface with Nurse Aicken, Ms Morrow the dietician or Dr Harrison, despite what I have concluded were lengthy and thorough discussions and provision to her of detailed, clear and helpful documents and instructions. Both Ms Morrow and Dr Harrison counselled her about the role of liquid calories in weight management in the context of her past history of excessive alcohol and soft drink consumption. I do not accept that she was not told of the need to modify those habits. However Katrina was most unwell for large parts of late 2013, 2014 and 2015 and beyond and in my view it is unsurprising that she remembers little. She volunteered in cross-examination that her “memory is really bad”. [66] I accept that is so. This has the consequence however that she cannot be relied upon at all as to what was said or not said to her or what she did or did not tell Dr Harrison and his staff.

    66. Tcpt, 25 February 2021, p 350

83. I have concluded that Katrina had a single-minded determination to have the gastric sleeve procedure and it is likely that she “switched off” to anything regarding warnings or complications. She had convinced herself, given Josie’s great results, that it was a “quick fix”, despite being informed to the contrary a number of times by Nurse Aicken, Ms Morrow and Dr Harrison. She unfortunately did not comply with the post-operation dietary advice as her clinical deterioration, non-attendances on the dietician and failure to implement appropriate and adequate nutrition demonstrated.

The gastric sleeve surgery performed by Dr Harrison on 22 July 2013

84. On 22 July 2013 Katrina completed or gave answers to permit the completion of the pre-admission form at Calvary Hospital in which she indicated that she was drinking “a glass of wine a night”. [67]

    67. Exhibit 72, Defendant’s Supplementary Tender Bundle, p 1267

85. At about 7:20am on 22 July 2013 Katrina was admitted to Calvary Hospital and Dr Harrison performed the laparoscopic sleeve surgery. The operation course was outlined in a letter to Dr Bartusek dated 25 July 2013:

“I was pleased to operate on Katrina at Calvary Hospital today and perform laparoscopic sleeve gastrectomy. Katrina has done well with Optifast.

This went smoothly. Katrina had a favourable liver and no sign of hiatal hernia despite careful dissection. Using a ligasure, we mobilised the stomach down to within 2 cm of the pyloric channel through to the left crus. Over a 36 French bougie, sequential firings of Endo GIA amputated the dependent stomach. This was then oversewn with V-Lock sutures. Seamguard was used for the proximal staple line.

I hope to discharge Katrina later in the week and follow-up will be in my rooms in about four weeks time.”

The post-operative course

86. The clinical notes indicate that Katrina was stable overnight with oxygen saturations of 100% on 3L via nasal prongs, and moderate amounts of PCA. Katrina complained of shoulder tip pain. At around 5:00am nursing staff noted that Katrina reported feeling faint when she got up to use the toilet but her observations were stable.

87. Katrina was medicated with Panadol, Maxolon and Atropine and had a physiotherapy consultation early that morning. Dr Harrison reviewed her at 8:00am.

88. At 3:00pm nursing notes stated that Katrina’s wound stab sites were clean and dry however she had a "small haematoma to lower R stab site to abdomen". She was otherwise tolerating sips of water. She continued to complain of shoulder tip pain and was encouraged to mobilise, and was given Panadol lg IV at 5:00pm.

89. At 5:45pm nursing notes state that haematoma to the right abdomen stab site had increased in size since the morning and that her abdomen was soft and dry.

90. Dr Harrison reviewed Katrina that afternoon, examined her abdomen and consulted the observation charts. After a discussion with Katrina and the nursing staff, Dr Harrison made the decision to observe but no intervention was needed at that time. The nursing entry in the notes recorded: “Dr Harrison R/V and nil further orders”. She was given Panadol 1g IV at 11:00pm.

91. Katrina was haemodynamically stable overnight. A nursing note timed at 5:00am recorded that the right stab site haematoma and bruising had not increased in size. During a physiotherapy consultation Katrina reported some upper central abdominal pain but that her shoulder tip pain was settling.

92. Dr Harrison reviewed Katrina at 8:00am and considered that she was stable and needed no intervention.

93. During the afternoon, the nurse caring for Katrina requested a review by the ICU doctor at the hospital. The ICU doctor did not make any entry in the records or contact Dr Harrison following his or her review but did order pathology.

94. At or about 6:30pm, Dr Harrison received a call from the nursing staff. He was advised about the blood tests results, including that Katrina’s haemoglobin was 83g/L and CRP was 59.4.

95. On the basis of the haemoglobin result, Dr Harrison concluded that she had experienced a post-operative bleed. Her abdominal wall haematoma did not appear to account for the drop in haemoglobin. He diagnosed an intra-abdominal bleed (which could have been from the port sites, the staple line, the greater omentum, the liver or around the spleen) and which was reflected in bruising on the abdominal wall. [68]

    68. Exhibit 3, Statement of Dr Richard Harrison, 20 November 2020, par 58

96. Katrina remained haemodynamically stable and hospital nursing staff reported to Dr Harrison Katrina’s temperature, pulse and respiratory rate. Dr Harrison took the view that no intervention was required and that nursing staff should continue observations, repeat the pathology and he would review her in the morning.

97. Nursing notes at 6:30pm record:

“Pt care taken over @ 07.15hrs. Observations stable. Pt tolerating free fluid diet. Haematoma present to R side of abdomen has increased in size. Pt febrile 38. BP and HR stable. ICU Dr asked to see pt abdomen. Soft and dry. Pt for pathology only for blood cultures when temp ↑ 38.5. Pt HB 83. Dr Harrison phoned and pt for repeat pathology in mane.? to W clexane in morning. Pt otherwise ambulant and S/C. Nil complaints nausea. Pt tolerating po medications. Teds ✓. Nil complaints voiced.”

98. The nursing notes recorded overnight were as follows:

At 10:00pm on 23 July:

“Care taken over at 19.15. patient checked. Obs checked. T37.8. Pulse 90. Haematoma marked, remains soft. Analgesia given as charted. Patient settled early, tolerating free fluids.”

At 2:50am on 24 July:

“Patient settled when checked. Obs taken overnight. Temp 37.2 at 24.00. Haematoma checked S + D sml area of extension on lower margin. Stated she was comfortable.”

At 5:15am on 24 July:

“Settled between cares, analgesia given as required, haematoma as marked last evening slightest extension in some areas. Temp settling 37. Pulse 80.”

99. Dr Harrison reviewed Katrina between 7:30am and 8:00am on 24 July and noted that she was stable and potentially suitable for discharge. Her pathology results were not yet available when he saw her. Dr Harrison says that he intended to decide whether to discharge her or to perform further investigations once he had reviewed the pathology results from that morning.

99. The nursing notes at 8.00am recorded:

“Took over the care from night shift staff. Pt haemodynamically stable and afebrile. Ambulant and self-caring. Withholding clexane until further clarification from Dr Harrison regarding the haematoma. Nil other concerns at the moment.”

101. At 9:19am Katrina had a physiotherapy consultation and at some point after 8:47am, nursing staff contacted Dr Harrison and reported the blood tests results. Her haemoglobin had increased to 88 mg/L. The rise in haemoglobin, together with her clinical condition satisfied Dr Harrison that Katrina could be safely discharged to her home in Wagga, mindful that post-discharge review could be easily arranged. When challenged in cross-examination about the wisdom of her discharge at that point, Dr Harrison explained that her pulse and blood pressure were normal, she was haemodynamically stable, her pain had improved and her respiratory function was satisfactory. [69] Dr Harrison had discussed his post-operative discharge information with Katrina in anticipation of her discharge. The sheet provided telephone numbers to contact if concerns arose. Dr Harrison also reminded Katrina that she could contact Calvary Hospital 24 hours a day, and that he could be contacted through the hospital if necessary.

     69. Tcpt, 15 December 2021, p 1089(4)-(9)

102. Dr Harrison explained in cross-examination [70] that the bruising on the abdominal wall was not surprising given Katrina’s BMI of almost 50 and this did not mean she was bleeding. She had had a “bleed” and the recovering haemoglobin was reassuring, noting that the haemoglobin would not “suddenly return to normal the next day”. [71] It would not be appropriate to reoperate in circumstances where Katrina was clinically stable, and there would be a high risk of disrupting the staple lines of the surgery if surgery was undertaken at that point, 48 hours after the initial surgery.

     70. Tcpt, 15 December 2021, p 1089(38)-(43)

     71. Tcpt, 15 December 2021, p 1889(20)-(29)

103. The nursing notes at 10:00am on 24 July 2013 recorded:

“Dr Harrison rang and advised pt to have injection clexane and discharge home. Discharge medications handed over w patient. Follow up appointment has been made and given w patient. Haemodynamically stable. IVC removed from right hand. Pt left HDU in care of her son at 10.00 hrs. Nil other concerns.”

104. On 31 July 2013, Katrina presented to the ED of WWBH complaining of acute abdominal pain.

105. A CT scan was ordered which demonstrated a gas-containing collection at the cardio­oesophageal junction which required a washout and drainage, with nasogastric feeding. She was transferred to Calvary Hospital on 1 August and Dr Harrison performed an urgent laparoscopy for peritonitis. Dr Nicholas Williams (Dr Harrison’s colleague) assisted. Dr Williams was and is a specialist upper gastrointestinal and bariatric surgeon in Wagga, who from time to time assisted in Katrina’s care.

106. Dr Harrison reported that he reintroduced all ports through the scars from the previous surgery and found offensive fluid in the upper quadrant and infected haematoma on both sides of the cardio-oesophageal junction and the proximal fundus. The staple line was intact. Following evacuation of the haematoma, Dr Williams performed a gastroscopy in conjunction with a laparoscopy. Dr Harrison concluded that Katrina had a viable looking stomach. There was no leak from under water seal, and no bubbles. The scope was passed to the antrum and a nasogastric tube was placed. Dr Harrison noted that the morphology of the sleeve was appropriate and specifically no stricture was encountered. [72] He made these observations by viewing the stomach on the video screen while performing the laparoscopy.

     72. Exhibit 3, Statement of Dr Richard Harrison, 20 November 2020, par 72

107. Dr Harrison recorded the following in Katrina’s patient notes about this surgery:

“Readmitted @ WWBH A+E gas containing collection @ COJ

OT with NW

Laparoscopic washout / drainage / NGT / endoscopy

→ ICU @ C

→ Percut. drainage @ C/XR 5/8/13 (I Duncan).”

108. In his statement Dr Harrison said this about his approach:

“76. I decided to treat the leak by inserting a drain and resting the stomach. The key issue during that admission was to control her sepsis by appropriate drains at multiple sites that had fluid collections as well as IV antibiotics and ensuring comprehensive nutrition with TPN feeding.

77. I held a family conference on 5 August 2013 to discuss her current condition and the treatment plan. We discussed the various options of treating leaks. This discussion covered the use of stents, the possibility of further surgery (gastric bypass) as well as the existing plan (drains, antibiotics and TPN). We also discussed the possibility that she might need a gastric bypass in the future.

78. Over the course of the admission, Ms Polsen began to respond to the treatment plan. She had regular assessment with chest x-rays, Doppler studies, Barium swallow testing, PICC insertion, CT studies and contrast dye studies. By 23 September 2013 she was eating and drinking. She was clinically well with no signs of sepsis. She was discharged on 23 September 2013.

79. I have read paragraph 75 of Ms Polsen’s statement in which she records that I said to her daughter Tahlea “sometimes if after removing the portion of the stomach we do not staple it together properly, a leak can develop”. I did not say that to Tahlea or Ms Polsen while she was a patient at Calvary Riverina Hospital in the admission commencing 1 August 2013.”

109. Whilst not referred to in his evidentiary statement of November 2020, on 6 August 2013 Dr Harrison telephoned Dr Michael Talbot at St George Hospital (see note in the Calvary Hospital records on 7 August 2013). The purpose of the telephone call was to discuss Katrina’s management, including the potential use of a stent. As a result of that discussion, Dr Harrison did not change his management plan. Dr Harrison explained in cross-examination that Dr Talbot was the foremost authority on stent use, and that is why he discussed the matter with him. [73] Dr Harrison further explained that stents were a “complex discussion” being experimented with at the time and neither in August 2013 nor in February 2014, did the St George Hospital specialists he consulted with advise that a stent procedure should be done at those times. [74]

     73. Tcpt, 16 December 2021, p 1116(23)-(31)

     74. Tcpt, 16 December 2021, p 1132(45)-(50)

110. Katrina had further investigations before her discharge on 23 September 2013 including chest X-rays on 2, 5 and 8 August 2013, a CT of her abdomen and pelvis on 9 August 2013, a chest X-ray on 12 and 15 August 2013, a further CT of the abdomen and pelvis and drain insertion on 16 August 2013 (during which it is agreed, the previously noted gastric leak was still present), [75] a barium swallow on 21 August 2013, a further CT of the abdomen and pelvis with IV contrast on 26 August 2013 and a barium swallow on 12 September 2013. The barium swallow showed persistence of extra luminal leak lateral to the gastric sleeve. [76]

     75. Agreed Chronology, 5 February 2021

     76. Agreed Chronology, 5 February 2021

111. On 24 September 2013, Dr Williams and Ms Willis (a nurse) reviewed Katrina in Dr Harrison’s rooms. Ms Willis recorded:

“104.8 kg

D/C from hospital yesterday.

Coping well with pureed custards.

Still draining 30ml overnight.

Drain feeling uncomfortable.

Some constipation, taking Benefibre.

S/B NW. To see him again Friday.

Drinking @ least 600ml - encouraged at least 1L / day

No temperatures

Taking Endone prn.

Given B/S form and FBC, CRP for this Friday.”

112. Dr Williams wrote to Dr Harrison and outlined the situation on 24 September 2013:

“I discharged Ms Polsen from Calvary on the 23rd September. She is tolerating a fluid diet orally and continues to put out approximately 30ml per day of greenish milk from her abdominal drain. There has been no increase in the amount of drain output since increasing her oral intake, which is very reassuring. She is clinically well with no signs of sepsis. I saw her in the office today with Tracey and we are arranging for her to now progress her diet with the help of the dietician. I will review Katrina again at the end of the week with a repeat swallow and inflammatory markers.”

113. On 26 September 2013, Katrina underwent a barium swallow reported as follows:

“CLINICAL DATA: Leak - check.

GASTROGRAFIN SWALLOW

Standard gastrografin swallow/meal.

Correlation is made with the previous study of 12/09/2013.

There is costal cartilage calcification and surgical sutures in the region of interest.

Allowing for this, there is a very small amount of contrast passing beyond the gastric lumen to lie in the region of the upper medial aspect of the pigtail of the surgical drain.

This is much less than on the previous study.

Comment: Very small residual leak, significantly reduced from the most recent comparison study.”

114. On 29 September 2013, Dr Williams wrote to Dr Harrison:

“Katrina's repeat swallow showed a dramatic reduction in the size of the leak. Her CRP is stable at 48 and her white cell count is normal. I rang Katrina tonight to see how she is going as we are about to go away for a week. Katrina tells me that she feels well, is eating normally, and her drain continues to put out approximately 40 mis per day. She saw her general practitioner today who was concerned about some exudate around the drain exit site and took a swap. I have counselled Katrina against taking antibiotics on the basis of this swab unless she feels systemically unwell. She will come back and see us on Tuesday, the 8th of October. If she becomes unwell in the interim, she will present to the Emergency Department.”

115. On 10 October 2013 Dr Harrison reviewed Katrina with Dr Williams and Nurse Willis. Her weight was 99.5kg, a loss of about 15kgs. She reported that she had returned to work the week before and had been struggling as she needed to be on her feet all day. I accept that is true and Katrina would have had difficulty at work given her recent surgery and illness. She said that she had called in to work sick on the day of the consultation and the following day. Her drain was still draining about 30ml per day. She said that she was struggling to eat and drink and was having yoghurt, custard and ice cream and 600ml water per day. She also described pain in her mid-sternum and back and that she had been feeling "hot and cold" and was very tired.

116. Dr Williams and Dr Harrison recommended readmission to Calvary Hospital for a CT scan, rehydration and to check her drain. On 11 October 2013, Dr Harrison wrote to Dr Bartusek about this admission:

“I have seen Katrina today at Calvary (11^th October). We saw her in the rooms yesterday and readmitted her last night as she looked dehydrated. As you know, she has had a small gastric fistula and been able to cope with work over the last couple of weeks. Overnight she had no temperature and her blood count was normal. CT scan this afternoon (11^th October) shows no sign of residual collection nor evidence of leak. As a result we pulled her drain out. Nick Williams will observe her over the next 24 hours or so and I will be following her up in the rooms next week. She has had a complex problem but I think she is now making on roads to nice recovery.”

117. On 18 October 2013 Dr Harrison telephoned Katrina who told him that she was feeling a lot better and had not experienced any fever, sweats or a temperature and was happy to have the drain removed. Dr Harrison wrote in Katrina’s records:

“PHONE: D/W Katrina

Feeling a lot better

Happy to have tube out

No fever/ sweats / temp

Due to see us next week.”

118. On 20 October 2013, Dr Harrison wrote to Dr Bartusek:

“It was a very pleasing outcome last week and had tube is now removed. She is relatively comfortable and has no symptoms such to suggest a loculated collection. She is seeing us again next week and I am pleased that she is making a smooth recovery at this time.”

119. On 25 October 2013 Katrina was reviewed by Nurse Willis who wrote:

“97.8 kg

Taken week off work

1200ml water / day. Eating soft foods but trying other things - chicken

Was constipated this week. Took laxative.

Needs to take Benefibre. Given constipation sheet

Energy still low, taking Nutrichew 2 / day

Some heartburn - given script Nexium 40mg

Given blood test.”

120. On 28 October 2013, Katrina was admitted to WWBH. A CT scan showed no evidence of a drainable collection and she was discharged the next morning.

121. On 7 November 2013 Nurse Willis wrote in Katrina’s records:

“Ph - in WWBH under Dr Hicks whilst RH away with pancreatitis ? having u/s for gallstones this am

Pain when eating and drinking. RH to see tonight.”

122. Dr Harrison outlined the circumstances of this admission in his statement at pars [92] to [93]:

“92. On 6 November 2013 Ms Polsen was admitted to Wagga Wagga Base Hospital under the acute surgery unit with a provisional diagnosis of pancreatitis. I was consulted by the on-call surgeon. I saw Ms Polsen at the Hospital on 7 November 2013. An ultrasound was arranged to investigate the presence of gallstones. I reviewed Ms Polsen during her admission and she told me that the pain she was experiencing was different from the pain she had experienced previously. I reviewed the results of a CT, an ultrasound and pathology tests which had been undertaken. I observed that the CT showed no change in what at that stage was a resolved gastric fistula. The CT confirmed “no leak”. She did have a thick-walled gallbladder with sludge and gallstones. The pathology results indicated that her lipase and liver function were abnormal. On my clinical examination there was no discharge from the drain site. She was transferred to Calvary Hospital on the evening of 8 November 2013.

93. I performed a semi-elective laparoscopic cholecystectomy on the afternoon of 11 November 2013. During the procedure, I found four quadrants of inflammatory adhesions particularly around the liver area. Most of these were filmy. The gallbladder was oedematous and mildly thick walled. When opened, it was packed full of sludge. I took a photo of this to show Ms Polsen. An intraoperative cholangiogram showed a 6-millimetre bile duct and fortunately no filling defects and smooth flow of duodenum. The liver bile duct appeared normal. I placed clips over the cystic duct and artery and removed the gallbladder. No lavage was required but I placed a drain.”

123. On 11 November 2013 Dr Harrison sent the following letter to Dr Bartusek:

“Katrina has been readmitted this last week through the accident and emergency department initially and across to the Calvary with what was likely to be in mild gallstone pancreatitis. Her pain was quite different to her previous times and indeed her recent CT's have shown no change in what is now a resolved gastric fistula. She does however have a thick walled gallbladder. Her lipase peaked at overall 1200 and liver function tests had shot up. The ultrasound confirmed these findings. After discussion of the issues, we went ahead as a semi-elective laparoscopic cholecystectomy on the afternoon of 11 November. I am not surprised to find four quadrants of inflammatory adhesions particularly around the liver area. Most of these were filmy. The gallbladder was oedematous and mild thick walled. When opened, it was packed full of sludge. Cholangiogram showed 6-millimetre bile duct and fortunately no filling defects and smooth flow of duodenum. The liver bile duct appeared normal. Clips were placed over the cystic duct and artery and the gallbladder removed. No lavage was required but a drain was placed. She will be in hospital for a couple of more days until she settles into some form of diet and I hope it is the beginning of her recovery.”

124. Dr Harrison was of the view that her gallbladder histopathology confirmed cholelithiasis with no evidence of acute inflammation. I interpolate that gallstones developing in the first few months after bariatric surgery was listed on page 4 of the RACS Weight Loss Surgery document (annexure A to this judgment) given to Katrina as a specific risk of bariatric surgery for about 3 in every 10 patients.

125. Dr Harrison next reviewed Katrina on 21 November 2013. By now she had lost about 25kg from her pre-surgery weight and reported feeling “good”. She did not report having any pain, and her liver function had improved. She told Dr Harrison that she had taken a redundancy at work. Dr Harrison scheduled her for review in four weeks. He wrote to Dr Bartusek to advise of developments.

126. Nurse Willis wrote in Katrina’s record on 12 December 2013 as follows:

“DNA. Mobile disconnected.

Ph - still low in energy. Still c/o some discomfort in middle back, pain slowly getting better

starting to eat better

Rebooked 19.12.13.”

127. On 19 December 2013 Dr Harrison received a call from Nurse Willis. She told him that she was reviewing Katrina who had reported feeling very unwell, with difficulty eating and drinking and no energy. Ms Willis reported that Katrina looked dehydrated and was complaining of pain in her back. Dr Harrison attended the rooms to review Katrina and arranged for her to be admitted to WWBH for fluids and pathology. Her weight at the consultation was noted to be 88.7kgs.

128. Katrina remained at WWBH between 19 and 21 December 2013 and presenting with abdominal pain. The 22 December Discharge Summary stated:

“Thank you for reviewing Katrina Polsen a 40 year old female discharged on 22/12/2013 from Ambulatory care Unit at Wagga Wagga Base Hospital. Katrina Polsen presented to this facility with Abdominal pain.

Summary of Care

Mrs Polsen presented with abdominal pain, on a background of a gastric sleeve in July 2013, with post op leak requiring ICU admission, and ongoing issues with abdominal pain.

She was referred to WWBH by Dr Harrison, after F/U in his rooms, with impression of dehydration.

She complained on going issues with abdominal pain, and had a USS abdomen which a fatty liver, nil duct diltation.

She was deemed fit for discharge on 21/12/2013

Discharge plan - D/C Home.”

129. Katrina was again admitted to WWBH on 16 to 25 January 2014 presenting with abdominal pain and jaundice. The Discharge Summary stated:

“Thank you for reviewing Katrina Polsen a 41-year-old female discharged on 25/01/2014 from Surgical Ward 2 at Wagga Wagga Base Hospital. Katrina Polsen presented to this facility with abdominal pain and jaundice.

Summary of Care

Katrina presented on 16/01/2014 with a 4 day history of lethargy, abdominal pain, nausea, vomiting, diarrhoea and worsening jaundice (dark urine, pale stools, pruritus) on the background of a gastric sleeve in July 2013. An abdominal US performed 2 days prior to admission showed no evidence of biliary obstruction. She was admitted under Dr Harrison for aggressive rehydration and antibiotics. Both CT and MRCP were normal, with no evidence of duel dilation or filling defects. Katrina was seen by Dr Chow for review of her chronic liver dysfunction, who felt she may have cirrhosis secondary to morbid obesity, alcoholism, methotrexate use and chronic unintentional paracetamol overdose. Katrina subsequently underwent an US guided liver biopsy before being discharged on 25/01/2014. The hospital noted Ms Polsen appeared malnourished with oedema.

Plan:

1. F/U Dr Chow 2-4/52 for liver biopsy results.”

130. This admission included a review by Dr Chow timed in the hospital notes at 5:00pm on 22 January 2014 which reported relevantly:

“… 2. Alcoholism – regular drinker for 10 years and was drinking one bottle of wine daily for 1 year prior to surgery…”

131. On 29 January 2014, Katrina was admitted to WWBH presenting with jaundice, lethargy and de-conditioning, where she remained until 26 February 2014. The Discharge Summary stated:

“Thank you for reviewing Katrina Polsen a 41 year old female to be discharged on 26/02/2014 from Surgical Ward 2 at Wagga Wagga Base Hospital. Katrina Polsen presented to this facility with jaundice, lethargy, deconditioning with a complicated surgical and medical hx.

416. Such an approach is consistent with the textual analysis conducted by Leeming JA (with whom Ward P and Basten JA relevantly agreed) in Paul v Cooke (2013) 85 NSWLR 167; [2013] NSWCA 311 at [41]:

“[41] Thus the effect of s 5A is that Part 1A of the Act applies uniformly to a class of claims for damage, irrespective of how the cause of action has been formulated, so long as the damage results from a failure to exercise reasonable care and skill. The effect of sections like ss 5I, 5L and 5O is to provide a complete answer to any claim falling within Part 1A. In short, Part 1A elides the traditional categorisation of causes of action and instead imposes uniform rules and principles wherever there is a claim for harm resulting from a failure to exercise reasonable care and skill. That policy of unification was anticipated by Justice Ipp, writing extrajudicially of the divergent tests of remoteness, in "Problems and Progress in Remoteness of Damage" in Paul Finn (ed), Essays on Damages (1992) Law Book Company Ltd, 14 at 29-41. It would seem to follow that no longer is there a different test for, say, remoteness of damage caused by a failure to exercise reasonable care and skill, irrespective of whether the cause of action is in tort or contract (cf Astley v Austrust Ltd at [47] and [76]-[80]), and the same may be true for statutory causes of action (there may also be questions of construction and further analysis will be required in the case of federal statutes). That in turn demonstrates that care must be taken in evaluating statements in the extrinsic materials that the Act was not intended to change the law. In large measure, such statements at best reflect an opinion that it was not intended to change the substantive law of the tort of negligence. There is no doubt that the Act changed the law insofar as principles primarily developed in the area of negligence have been imposed upon other causes of action which involve a failure to exercise reasonable care and skill. Further, although little turns on it for present purposes, to the extent that it is directed to admissibility (s 5D(3)(b)), or onus (s 5E), or the ways in which courts are to determine issues (notably, s 5D(2) and s 5D(4)), plainly enough the Act effects a substantive change, aspects of which have been described by Professor Barbara McDonald: "The impact of the Civil Liability legislation on fundamental policies and principles of the common law of negligence" (2006) 14 Torts Law Journal 268. In relation to s 5D, twice now it has been said that whether or not s 5D will produce a different result from common law has not been decided: Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420 at [44]; Strong v Woolworths Ltd [2012] HCA 5; (2012) 246 CLR 182 at [19] and [28].”

417. In South Western Sydney Local Health District v Gould (2019) 97 NSWLR 513; [2018] NSWCA 69, Leeming JA (with whom Basten and Meagher JJA agreed) further articulated the rationale behind why the proper approach is that s 5O provides the standard and that analysis under s 5B is consequently otiose, and diverting analysis to s 5B, instead of ending the inquiry with s 5O, can lead to error:

“[126] To similar effect, Simpson JA said at [329]:

“[Section] 5O, like s 5I, provides a complete answer to a claim under Pt 1 A of the CLA. It is in that sense that the section operates as a defence. For that reason, when it is pleaded, it is convenient to deal with it first.”

[127] The force of those observations is readily demonstrated.

(1) First, it is to be recalled that s 5B (like many other provisions in Part 1A of the statute) is a gateway provision, expressed in terms of a necessary but not sufficient condition for a finding of “negligence” (ie, a failure to exercise reasonable care and skill). Section 5O, in contrast, in the circumstances in which it applies, means that the defendant “is not liable”. That tends to support a construction that when the preconditions to s 5O have been made out, then it supplants the analysis otherwise required by s 5B.

(2) Secondly, there is no sound reason first to find whether a professional who has been alleged to have been negligent breached his or her duty of care by reference to what has been held in Rogers v Whitaker and Naxakis v Western General Hospital (1999) 197 CLR 269; [1999] HCA 22, only then to determine, in accordance with s 5O, that the erstwhile breach of duty does not incur any tortious liability. There is no reason to add to the complexity of trials, so as to require the evaluation of the professional’s conduct against not one but two separate standards.

(3) Thirdly, there is no good reason for the potential reputational damage which may be suffered by a finding of breach of the test at common law to be incurred when, if s 5O applies, statute has said that “the professional does not incur a liability in negligence”.

(4) Fourthly, that approach is wholly consistent with the terms of reference to which the Ipp Committee was subject. As noted above, those terms required that “in conducting this inquiry, the Panel must … (d) develop and evaluate options for a requirement that the standard of care in professional negligence matters (including medical negligence) accords with the generally accepted practice of the relevant profession at the time of the negligent act or omission”. Section 5O reflected that term of reference, and I see no reason why it should not be construed accordingly, in accordance with s 34 of the Interpretation Act 1987 (NSW). Its heading is, after all, “Standard of care for professionals”.

[128] It is true that on occasion there has been separate treatment of breach in accordance first with ss 5B and 5C and then with s 5O (see for example Howe v Fischer [2014] NSWCA 286 at [73]-[78] and Melchior v SydneyAdventist Hospital Ltd [2008] NSWSC 1282 at [139]-[145], both cases where breach was not found to have been established under s 5B). But the weight of authority proceeds on the basis as stated in the Ipp Report, assimilating the standard of care to that stated by s 5O once the preconditions of the section have been satisfied. That is the gravamen of the empirical research presented by C Mah, “A critical evaluation of the Professional Practice Defence in the Civil Liability Acts” (2014) 37(2) University of Western Australia Law Review 74.

[129] In the present case, the separate consideration under ss 5B and 5C, followed by s 5O, appears to have led to error. The primary judge rejected as irrational evidence which was contrary to the standard determined in accordance with s 5B. But the effect of s 5O, in a case where its preconditions are made out, is to replace the standard of care against which breach is assessed. There is no occasion to compare the s 5O standard with that which would be considered in the application of s 5B in a case when the preconditions of s 5O have been made out.”

418. The pre-requisites of an opinion addressing s 5O is set out with clarity by Basten JA in Sparks v Hobson at [88] to [89]:

“[88] In summary, the evidence relied upon by Dr Sparks fell short of establishing a standard, widely accepted in Australia, of competent professional practice. A bald statement by a practitioner, however well qualified, without reference to the specific factors giving rise to a claim of negligence may well not persuade the court that there is a relevant standard identified in the evidence. Further, a bald claim that the practice is “widely accepted” as falling within the scope of competent professional practice may not be accepted by the court as evidence of that fact. To persuade the court that the terms of the section have been satisfied one would generally expect evidence which stated the basis of the standard. Further, the evidence is more likely to be persuasive if it seeks to grapple with possible conflicting views in a reasoned manner.

[89] That is not to say that any of the evidence was “irrational”. Rather, the test of irrationality applies to the opinion as to competent professional practice. The Court must always be satisfied as to two antecedent questions, namely that the opinion addresses the conduct as found at the trial and that the evidence supports the view that the expressed opinion was, at the time of the conduct, “widely accepted in Australia”.” (Emphasis added).

419. The application of s 5O is qualified by s 5P which provides:

5P   Division does not apply to duty to warn of risk

This Division does not apply to liability arising in connection with the giving of (or the failure to give) a warning, advice or other information in respect of the risk of death of or injury to a person associated with the provision by a professional of a professional service.

420. Division 6 comprises ss 5O and 5P. Given the failure to warn allegations made in the Further Amended Statement of Claim at 17(c) and (d), a separate analysis of those allegations is required. Whilst expressed in terms of “failure to advise” the gravamen of the allegation is a failure to warn of the risks of the procedure and failure to advise regarding alternate procedures. I interpolate here that none of the expert opinions tendered in the case supports these allegations and I have concluded that Katrina was very thoroughly warned and advised and was absolutely determined to have the procedure.

421. The correct approach to 5P is set out by Leeming JA in Paul v Cooke at [42]:

“(b) Warnings are treated differently

[42] Secondly, claims involving breach of a duty to use reasonable care and skill to give a warning are given special treatment by the Act. The provisions may be summarised as follows. There is no duty to warn of an "obvious risk", absent a request from the plaintiff or a statutory obligation or the defendant being a professional and the risk being of death or personal injury: s 5H. There is no duty to a person who engages in a "recreational activity" if there had first been a "risk warning": s 5M. There is no liability at all for an "inherent risk", save that liability is not excluded in connection with a duty to warn of such a risk: s 5I. And although a professional will be held to have satisfied a duty if he or she acted in a manner which was widely accepted by peer professional opinion by reason of s 5O, that does not apply to liability arising in connection with the failure to give a warning, advice or other information in respect of the risk of death or personal injury: s 5P.”

422. For the sake of completeness I make reference to the other parts of the Act referred to in submissions. Section 5B provides:

5B   General principles

(1)  A person is not negligent in failing to take precautions against a risk of harm unless—

(a)  the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and

(b)  the risk was not insignificant, and

(c)  in the circumstances, a reasonable person in the person’s position would have taken those precautions.

(2)  In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things)—

(a)  the probability that the harm would occur if care were not taken,

(b)  the likely seriousness of the harm,

(c)  the burden of taking precautions to avoid the risk of harm,

(d)  the social utility of the activity that creates the risk of harm.

423. Section 5C provides:

5C Other principles

In proceedings relating to liability for negligence—

(a)  the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and

(b)  the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and

(c)  the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk.

424. Section 5D appears in Division 3 entitled “Causation” and provides:

5D General principles

(1)  A determination that negligence caused particular harm comprises the following elements—

(a)  that the negligence was a necessary condition of the occurrence of the harm (factual causation), and

(b)  that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability).

(2)  In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.

(3)  If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent—

(a)  the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and

(b)  any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.

(4)  For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.

425. Section 5E provided for the onus of proof:

5E   Onus of proof

In proceedings relating to liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.

426. Section 5I has been pleaded by Dr Harrison as a complete answer to the claim. The relevance was developed in submissions to refer to the fact that all of Katrina’s sequelae were in effect inherent risks of the procedure that unfolded over time:

5I   No liability for materialisation of inherent risk

A person is not liable in negligence for harm suffered by another person as a result of the materialisation of an inherent risk.

An inherent risk is a risk of something occurring that cannot be avoided by the exercise of reasonable care and skill.

This section does not operate to exclude liability in connection with a duty to warn of a risk.

427. In Paul v Cooke, Leeming JA with Ward JA (as her Honour then was) agreeing, said s 5I ought to be considered first as it operates to “exclude liability”:

“[53] If a case can conveniently be decided under s 5I, it should be. The language of s 5I reflects the elements of liability which the plaintiff needs to establish. That is why it is framed in terms of the broader causal language of "as a result of", reflecting the language of s 5A(1) rather than of s 5D(1), and why its opening words are "A person is not liable in negligence". That is reinforced by s 5I(3), which carves out from the operation of the section "to exclude liability" a class of liability connected with a duty to warn. Section 5I does not deny s 5D causation; rather it answers the implicit question posed by the "claim" contemplated by s 5A(1) negatively: the defendant is not liable for that claim for damages for harm resulting from negligence.

[54] The reasons for my view that s 5I should be applied if it is available are as follows. First, once s 5I is engaged, there is no liability for a failure to exercise reasonable care and skill. The entire inquiry under Part 1A comes to an end.”

428. Arguably s 5I does not need to be considered where the proceedings can be disposed of by the application of s 5O, but to the extent necessary, I will separately evaluate below the parties’ submissions and my conclusions regarding the role of s 5I in the circumstances of this case.

Submissions

(i) General comments

429. Neither the defendant’s nor the plaintiff’s written or oral submissions approached the case on the basis prescribed by the Court of Appeal in Sparkes v Hobson, Paul v Cooke, South Western Sydney Local Health District v Gould and Dean v Pope, that the standard of care in professional negligence matters has been assimilated into the test stated in s 5O of the Act.

430. They are thus of limited assistance for the primary task the Court has to complete. There are however some discrete matters, particularly in the plaintiff’s submissions, that I need to specifically address.

(ii) Plaintiff’s submissions

431. The plaintiff’s written submissions filed on 30 September 2022 did not address the role or requirements of s 5O at all on the basis that s 5O was insufficiently pleaded in the Defence filed. That submission is misplaced, and I reject it.

432. The plaintiff’s written submissions fail to engage at all with the inquiry the Court has to make because they do not adequately acknowledge and deal with the expert evidence relied upon by the defendant that is supportive of the defendant’s management, other than to manufacture a conspiracy theory that the defendant’s experts were all “misled” by the entry in Dr Harrison’s medical records regarding what he wrote to Dr Bartusek GP on 28 May 2013 (and what he told the Court), was his understanding as to what Katrina had told him regarding the reduction in her alcohol intake.

433. I reject the submission that the experts were misled. I have accepted as true Dr Harrison’s evidence on this issue. In any event, the joint liability conclave and the concurrent evidence and the synergy of those engagements between the experts ensured that the mixed assumptions were well and truly canvassed by the expert evidence.

434. The plaintiff’s written submissions stated that it has “never been the plaintiff’s case that she would never have been a proper candidate for the surgery” but that given the surgery was non-urgent and elective, “at all material times, and specifically as of 28 May 2013, when Katrina saw Dr Harrison, she was not a suitable candidate for the surgery”. This is presumably to address the accepted reality that the plaintiff both needed and wanted the surgery to address her morbid obesity.

435. A selective and partial analysis of the evidence regarding Katrina’s alcohol consumption and the reports she gave of that to health care professionals does little more than highlight the problems she created for her treatment course. The submission that because the history given was mixed, Dr Harrison should have “investigated further” does nothing but beg the question. The defendant’s experts made it clear that even if Katrina was drinking 750mls of wine a night, the literature is inconclusive as to whether that causes healing problems, and it did not make her an unsuitable candidate for the surgery she very clearly required.

436. The case pleaded in contract has no role because the Civil Liability Act provides that any liability for the plaintiff’s negligence claim must to be determined under Part 1A(1) of the Act:

5A Application of Part

(1) This Part applies to any claim for damages for harm resulting from negligence, regardless of whether the claim is brought in tort, in contract, under statute or otherwise.

….

437. Accordingly, the pleading of breach of contract does not divert the necessary inquiry away from s 5O of the Act, nor does it provide any alternative basis for liability.

438. The analysis in the plaintiff’s written submissions under ss 5B, 5C and 5D of the Act is otiose. Selective and limited quotes, reinterpreting some of the evidence of Dr Harrison and Dr Williams and some of the experts, does not assist in the necessary evaluation of the defendant’s decision-making and management of the emerging clinical course.

439. There was a submission made that the defendant had an obligation to call evidence from the staff at St George Hospital, specifically Dr Talbot, Dr Jorgenson and Professor Craig, and that the Court should draw an inference that evidence from those doctors would not have assisted the defendant.

437. I do not accept that submission. No evidence from those doctors was identified as essential to evaluation of the defendant’s treatment of Katrina, which is the subject matter of the negligence case. It could equally be argued that the plaintiff had an obligation to call evidence from those institutions to the effect that they were never asked by Dr Harrison to participate in discussions about the care of the plaintiff. No such submission has been made. I consider the absence of evidence from those individuals to be neutral.

438. The submission that the Court should assume that Dr Harrison was being untruthful in asserting that he had conversations with doctors at St George has no merit. I have accepted Dr Harrison’s evidence as truthful. If it were to be seriously disputed, it would have been available to the plaintiff’s legal representatives to call those doctors (who were after all the plaintiff’s treating doctors and therefore in her “camp”) to give evidence. That did not occur. Also, the clinical records of Dr Harrison indicate that there was discussion and exchange of information, including a detailed letter from Dr Jorgenson in September 2014 in which Dr Jorgenson outlined (reproduced at [153]) the complexities of Katrina’s presentation.

439. There was a submission made that Dr Sethi’s evidence should be ignored because it is hearsay and excluded by s 76 of the Evidence Act because his opinions were not based on specialised knowledge based on Dr Sethi’s training, study and experience. I reject that submission. First of all, no objection was taken prior to September 2022. Second, Dr Sethi is a gastroenterologist and hepatologist who on my assessment confined his evidence to matters relevant to his specialty.

440. A submission was made that Dr Harrison’s colleague Dr Williams denied in his evidence that Dr Harrison ever discussed with him sending Katrina elsewhere for definitive surgery. This is a misinterpretation of Dr Williams’s evidence. Dr Williams was addressing an allegation by Katrina that there was a conversation at a particular identified time in which Dr Williams insisted to Dr Harrison that Katrina should be sent for definitive surgery and that Dr Harrison disagreed with that proposal. The effect of Dr Williams’s evidence was that it was discussed as an option between them on a number of occasions, but the question was the timing.

441. The plaintiff’s written submissions in reply asserted that Katrina was sufficiently stable between March 2015 and May 2015 to have the Roux-en-Y. This was not the case pleaded, but in any event, this must be viewed against the fact that she reported that the wound had “closed over” and there was no discharge (16 April 2015) and that she was well, and that the month before, on 19 March 2015 in consultation with Dr Harrison, she had stated that she was happy for Dr Harrison to continue her care and did not want surgery.

442. The submission was made that Katrina was “left to find her own way to Dr Le Page” and that this was unsatisfactory, an opinion voiced by Mr Jenkinson, one of the plaintiff’s experts. However, there is more to the story of the unfolding clinical course. By February 2015 Katrina had retained solicitors to act for her and they had requested Dr Harrison’s records. He still continued to treat her, despite this. By July 2016, Dr Harrison had been named as a defendant in professional negligence proceedings. It could hardly be said that it was appropriate for him to exercise some kind of overarching care and referral process in those circumstances once he was sued. Katrina did not ask to consult him after the end of 2015 and other than apparently in February 2016 at WWBH, where Dr Harrison was on duty and attended to her, he did not see her after that date.

443. Katrina remained in the care of her GP Dr Mark who in July, August and October 2016 prepared referral letters to three separate surgeons for “opinion and management of the fistula post gastric sleeve”. What Katrina did about those referrals was not covered in her evidence. There is a gap in the evidence, but what the evidence tendered shows is that Katrina and her GP knew she needed ongoing management, yet she appears to have delayed acting on this need and the referrals provided by her GP for reasons which remain unexplained.

444. It was baldly submitted that there was “no evidence” called by the defendant that would support an inherent risk defence under s 5I of the Act. This is simply wrong, and is a submission that completely ignores the large tracts of evidence presented, and in particular the RACS document attached to this judgment, which sets out the many risks of the gastric sleeve procedure, many of which unfortunately befell Katrina. Given that all the sequelae flowed from the gastric leak and its complications, I do not accept the plaintiff’s submission on s 5I. Obviously the “inherent risk” includes the fact of her selection to undergo the procedure.

(iii) Defendant’s submissions

448. The defendant’s written submissions filed on 14 October 2022 described the plaintiff’s case as one which “attempts to render the manifestation of anticipated surgical complications as negligence”. This is an apt description.

449. It was submitted that the plaintiff’s case as to deficiencies in post-surgical care is an unfair retrospective construction. The way the Court should assess the matter is by analysing Dr Harrison’s care of the plaintiff in light of the changing circumstances, and when that is considered, the correct conclusion is that he acted reasonably, and that is all the law can require of him. The expert evidence establishes that under s 5O, he should not incur a liability in negligence.

450. Focusing on the Second Further Amended Statement of Claim, the allegation as to by when Dr Harrison should have performed, (or arranged performance of), gastric bypass surgery was pleaded to be 12 November 2013 (pars 15(s) and 17(s)). It was submitted that the Court should not countenance some shift in that period to an allegation that definitive surgery should have been undertaken in February 2015. This was not the case pleaded.

451. Whilst I understand and acknowledge the defendant’s frustration about the “shifting sands” of the plaintiff’s case, the expert conclave and concurrent evidence cannot be ignored and I have considered all of the evidence given by the experts as to when and why the “definitive surgery” should have been offered and completed.

452. The defendant submitted that Katrina was a particularly unimpressive witness who did not appear to be genuinely engaged in the task of giving truthful evidence, but tried to advance a narrative, feigning ignorance and professing absence of recall when trapped by questioning. Her evidence was contradictory. At one stage Katrina described the process of giving evidence as “bullshit.” She deliberately downplayed pre-existing difficulties with her rheumatoid arthritis and other pre-surgery health problems. She was untruthful and at best unreliable.

453. I accept the submission that Katrina was unimpressive and unreliable. As to whether she was deliberately untruthful, it was difficult to tell. I do accept that there were many inconsistencies in what she said both in Court and during her treatment course.

454. In terms of s 5I of the Act, the defendant submitted that the anticipated complications and inherent risks were not created by Dr Harrison. The complication of gastric leak and all of its sequelae comprise inherent risk for the purposes of s 5I and could not have been avoided by the exercise by Dr Harrison of reasonable care and skill.

455. This submission accurately reflects the evidence and is accepted. In respect of this argument, the evidence of Mr Jenkinson, Professor Brown and Dr Garett Smith provides essential background to this analysis. Once there was a gastric leak, management was predictably difficult and the remedies, complex and fraught.

456. I have concluded that an inherent risk in the procedure is a complicated post-surgical course where there is room for differences of opinion as to how and when to provide “definitive surgery”, and that the timing of it is very dependent on an analysis of risks versus benefits and the clinical condition of the patient at the time the procedure is being considered.

Did Dr Harrison act in a manner that (at the time his professional service was provided) was widely accepted in Australia by peer professional opinion as competent professional practice?

457. The short answer is yes. It cannot be suggested that the combined force of opinion of Professor Brown and Dr Garett Smith as bariatric surgeons practicing in 2013 in Australia, and the content and nature of their evidence is anything short of representing the standard applying to competent professional practice in 2013 that was widely accepted in Australia. Their opinions are entirely supportive of Dr Harrison’s management. That position was further supported by the analysis and evaluation of the clinical course undertaken by Dr Harrison, by the experience and expertise of Dr Byrnes and Dr Sethi from the point of view of a gastroenterologist.

Has Ms Polsen established that Dr Harrison was negligent under ss 5B and 5C of the Civil Liability Act?

458. Given the approach of the Court of Appeal in Paul v Cooke, Sparks v Hobson, Dean v Pope and South Western Sydney Local Health District v Gould there is no need to consider this question.

Has Ms Polsen proved causation as required by s 5D of the Civil Liability Act?

459. No - but there is no need to consider that question.

Has Dr Harrison established that s 5I – inherent risk – applies?

460. Yes - the RACS document annexed to this judgment demonstrates resoundingly that all of the complications that befell Katrina were well-known risks and sequelae of the gastric sleeve procedure, all of which she was comprehensively warned before undergoing the procedure.

461. The practicing bariatric surgeons Professor Brown, Dr Garett Smith, and to an extent Mr Jenkinson explained in their evidence why the complicated and stormy post-operative course Katrina unfortunately followed was within the risk(s) inherent in the procedure. In end result Mr Jenkinson’s criticism was limited to patient selection without psychological counselling for alcohol intake and delaying the surgery, rather than any identified failures in the treatment course which he acknowledged on multiple occasions were known risks that were difficult to manage, and would have benefited from referral to a “more specialised centre”, on the assumption it seems, that the centre would have performed particular surgery in a defined timeframe.

Conclusions and decision

462. It is ordinarily desirable to assess damages in case my liability findings are found to be wrong. However, in this case there are so many variables, dependent upon a multitude of potential findings, this task would require repeated assessments of damages on so many different hypotheses that such an exercise is not justified. If error is found in my findings regarding liability, and where that error lies, will dictate the timing and parameters of any damages assessment.

463. Significantly, there was a dearth of evidence that would allow adequate assessment of the probable recovery from and clinical course of any of the proposed interventions if they were undertaken at the times it is alleged they should have been done.

464. One of the proposed interventions, stent insertion to manage the gastric leak, was carried out by Dr Jorgenson on 25 September 2014 but the procedure caused gastric erosion, with Katrina presenting to hospital vomiting blood some nine weeks later. The stent had to be removed and was not reattempted. This clinical course demonstrates why, as Professor Brown and Dr Garett Smith made clear, stenting at that time was generally considered to be “controversial”, and treatment of gastric leak is complex.

465. The supposedly “definitive surgery”, gastric bypass, also known as Roux-en-Y, entailed very significant risks including death, abandonment and, somewhat ironically, staple line leak.

466. It is not reasonable nor appropriate to assume that because four years after the leak was first noted, when a surgical team determined Katrina to be sufficiently stable to withstand Roux-en-Y surgery - involving as it did eight hours of surgery and significant risks of mortality and morbidity - if that surgery had been attempted in November 2013, as is asserted by Katrina it should have been, (or even in 2014 or 2015), the outcome would have been resolution of some of her problems to the level that was accomplished in 2017. There simply is no evidence that would form any acceptable basis for that conclusion.

467. There is a terminal circularity inherent in the plaintiff’s case that she should not have had the surgery at the time she did because of her excessive alcohol consumption. First, I have concluded that Katrina gave inconsistent and unreliable accounts to everyone including her lawyers about her consumption. There is still no clarity as to what was in fact her consumption at times relevant to the surgery. I do not consider her family’s evidence either clear or reliable as to time frames or consumption levels.

468. In the concurrent expert evidence, (and in the joint liability report), it was apparent that the experts retained by Katrina offered their views based on the assumption that she had told Dr Harrison that she was in fact consuming a bottle of wine a night and had been doing so for a long time, or that he should have assumed that was the fact, and that was the least amount of alcohol she had in fact been consuming at all relevant times.

469. The evidence is so unsatisfactory on this issue that no such assumptions can be made, and so any expert opinions reliant on those assumptions fall away.

470. The assertion that the surgery should have been “delayed” for some months also begs the question. If what Katrina and her family asserted was true, Katrina misrepresented to all the medical professionals her level of alcohol consumption during 2013 as well as to Dr Bleasel in November 2012. There is no reason to assume that Katrina would stop inaccurately reporting or underestimating (or over-estimating) her alcohol consumption, or that she would in fact reduce her alcohol consumption. A delay of the procedure would have achieved nothing, even if Katrina was prepared to consult a psychologist about her possibly excessive, but denied, alcohol consumption.

471. I have concluded that it is most unlikely Katrina would have engaged with a psychologist. If she did, she would only be “going through the motions” in order to be permitted to have the procedure she wanted. Katrina never, on my understanding, consulted a psychologist and in fact refused referral to a psychologist to assist her with her psychological health surrounding her post-sleeve complications and illnesses. In my opinion nothing at all would have been achieved by delaying the surgery she clearly needed to manage her morbid obesity.

472. There was no failure to warn of the many risks of the gastric sleeve procedure. Katrina was comprehensively warned of the many risks.

473. Referral to a tertiary hospital is an allegation of negligence that is not established and goes nowhere. Katrina was actually physically transferred to the care of Dr Jorgenson and Professor Craig at St George Hospital in September/October 2014. The treatment provided did not help Katrina’s clinical condition. Time and recovery of nutrition was required before any further surgery could be considered. That was ultimately done at Concord Hospital in 2017 with a good outcome. There is no evidence upon which I could safely conclude that an attempt at Roux-en-Y in 2014 or 2015 or even 2016 would have had a good outcome, or what that outcome would have been.

474. It has been clearly established on the evidence of Professor Brown and Dr Garett Smith that Dr Harrison’s advice and treatment was consistent with what a responsible body of peer professionals have concluded was widely accepted in Australia at the relevant time, as competent professional practice. The plaintiff’s case fails.

Orders

475. I make the following orders:

1. Verdict and judgment for the defendant.

2. The plaintiff to pay the defendant’s costs of the proceedings.

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Annexure - Polsen v Harrison (No. 8) (3748151, pdf)

Endnotes

Amendments

24 July 2023 - Par 290: corrected "inadmissible" to "admissibility"

Par 292: inserted a full stop after the word judgment.

Par 293: corrected the word "standard" to "standards"

16 October 2023 - Par 402: corrected the word "remitted" to "readmitted".

Decision last updated: 16 October 2023