Reid v Lim - [2006] WADC 212

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: REID -v- LIM [2006] WADC 212

CORAM: GOETZE DCJ

HEARD: 711 AUGUST 2006

DELIVERED : 21 DECEMBER 2006

FILE NO/S: CIV 1070 of 2003

BETWEEN: DEREK JOHN LAMOND REID
Plaintiff
AND
SOO TEE LIM
Defendant

Catchwords:

Claim for damages for medical negligence - Turns on own facts

Legislation:

Nil

Result:

Action dismissed

Representation:

Counsel:

Plaintiff: Mr K J Bradford
Defendant: Mr A S Derrick

Solicitors:

Plaintiff: Bradford & Co
Defendant: Clayton Utz

Case(s) referred to in judgment(s):

Bennett v Minister for Community Welfare (1992) 176 CLR 408
Chappel v Hart (1998) 195 CLR 232
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Rogers v Whitaker (1992) 175 CLR 479
Rosenburg v Percival (2001) 205 CLR 434

Case(s) also cited:

Hoyts Pty Ltd v Burns [2003] HCA 61
Elbourne v Gibbs [2006] NSWCA 127
Johnson v Biggs [2000] NSWCA 338
Shead v Hooley [2000] NSWCA 362
Briginshaw v Briginshaw (1938) 60 CLR 336
Naxakis v West General Hospital (1999) 197 CLR 269
Commissioner of Main Roads v Jones (2005) 79 ALJR 1104
Dorsett v Janeska [2005] WASCA 215

GOETZE DCJ:
Introduction

The plaintiff was born on 26 September 1946. He was a boilermaker/welder working at Newman. From 1995, the plaintiff suffered bilateral knee pain which increased over time and resulted in him attending upon his general medical practitioner, Dr L Green, who in June 1997, referred the plaintiff to the defendant, an orthopaedic surgeon, who had rooms in Port Hedland.
The plaintiff had been concerned that he required a total right knee replacement, but the defendant was concerned that at the plaintiff's then age of 50 years, such a procedure would shorten his working life. The defendant suggested a procedure known as a high tibial osteotomy (HTO), which would "buy a bit more time" for the plaintiff so that he could continue his working life and reduce his pain before subsequently requiring a knee replacement.
The HTO was carried out to the right leg on 15 August 1997. The plaintiff complains that the defendant failed to provide him with pre‑surgical advice regarding the HTO, that he was negligent during the performance of it and in his post operative treatment. This results in a claim for damages.

The nature of the HTO operation

The plaintiff was bow‑legged ie he had a varus deformity. This put a lot of pressure on the medial side of each knee. In order to reduce that pressure, the HTO was proposed by which a horizontal incision is made from the lateral side of the tibia towards the medial side, but not completely through it. Then, an oblique cut is made into the tibia designed to meet up with the horizontal cut, thus forming a wedge of bone, which is removed. The angle of the oblique cut is important in determining the degree of alteration to the bow‑legged patient. It is calculated prior to surgery.
Once the wedge of bone has been removed, then, a further controlled fracture can be caused across the balance of the tibia to the medial cortex and the ends of the wedge on the lateral side of the tibia are brought together. This is effected and kept in place by a plate and screws.
The surgery straightens the leg by removing the bow‑legged effect of the patient with the result that the pressure line from the hip to the ankle through the knee joint is altered from the damaged medial side of the knee joint to the not so damaged lateral side. This then changes the position of the patient from varus (bow‑legged) to valgus (knock‑kneed).
It may be, that, a controlled fracture to the medial cortex is not affected prior to the wedge of the tibia being brought together by the tightening of the screws and in this event, the tibia may still fracture from the edge of the cut across to the medial cortex as the wedge is tightened. This is an accepted risk of the procedure and usually it is inconsequential whether this fracture occurs in a controlled or uncontrolled manner.

Pleadings

The relevant pleadings are as follows:
"AMENDED STATEMENT OF CLAIM
Dated 7 August 2006
3.On 16 June 1997, the Plaintiff consulted the Defendant in relation to bilateral knee pain ('the examination').
4.At the examination the Defendant advised the Plaintiff that:
a)he suffered from a varus deformity in both knees;
b)arthritis on each medial side of the knee joint;
c)recommended that a high tibia osteotomy ('HTO') procedure be carried out, firstly on the right leg and later on the left leg ('the surgery').
5.At the examination the Defendant knew or reasonably ought to have known that:
(a)there were identifiable risks associated with the surgery;
(b)those risks included:
(i)overcorrection causing knee deformity;
(ii)HTO would not relieve the Plaintiff's symptoms permanently;
(iii)there was a risk of injury or damage to the peroneal nerves supplying the lower limbs;
(iv)there was a risk of activation and/or acceleration of degenerative changes in the hip, knee and ankle joints;
(v)there was a risk of post‑operative increased pain arising in the hip, knee and ankle joints;
(vi)the development of muscle weakness in the whole of the limb;
(vii)a difficulty in converting to knee replacement surgery at a later time;
(viii)the osteotomy could progress into fractures of the remaining tibia.
6.In the circumstances the Defendant was at all material times under a duty to inform the Plaintiff of the matters pleaded in paragraph 5 above.
7.Between the examination and August 1997 and in breach of the duty pleaded in paragraph 6 above the Defendant failed to inform the Plaintiff of the matters pleaded in paragraph 5 above.
PARTICULARS OF BREACH
The Defendant failed to inform the Plaintiff that:
(a)there were identifiable risks associated with the surgery;
(b)Those risks included:
(i)overcorrection would cause knee deformity;
(ii)HTO would not relieve the Plaintiff's symptoms permanently;
(iii)there was a risk of injury or damage to the peroneal nerves supplying the lower limbs;
(iv)there was a risk of activation and/or acceleration of degenerative changes in the hip, knee and ankle joints;
(v)there was a risk of post-operative increased pain arising in the hip, knee and ankle joints;
(vi)there was a risk of the development of muscle weakness in the whole of the limb;
(vii)there would be a difficulty converting to knee replacement surgery at a later time;
(viii)the osteotomy could progress into fractures of the remaining tibia.
8.At the examination and in reliance on the advice given to the Plaintiff by the Defendant at the examination, the Plaintiff accepted the Defendant's advice and agreed to undergo the surgery.
9.If the Defendant had advised the Plaintiff of the matters pleaded in paragraph 7 above at the time of the examination and at any time up to June 1997, the Plaintiff would have attached significance to those matters in agreeing to undergo the surgery.
10.The Plaintiff underwent:
(a)HTO on the right leg during August 1997;
(b)HTO on the left leg during September 1998;
at the hands of the Defendant at Port Hedland Regional Hospital.
11.During the surgery in August 1997 the Defendant owed a duty of care to the Plaintiff to exercise all reasonable care, skill and diligence in the performance of that surgery.
PARTICULARS OF THE DEFENDANT'S DUTY
The Defendant was under a duty to:
(a)Ensure that the wedge caused by bone removal from the Plaintiff's upper tibia was correctly measured;
(b)Ensure the osteotomy did not progress through the Plaintiff's tibia thus creating a fracture.
(c)Ensure that the tibia did not rotate in a medial direction causing the Plaintiff's right foot to invert inwards;
(d)Ensure that the wedge of bone from the Plaintiff's tibia was not too large resulting in overcorrection;
(e)Ensure that the wedge caused by bone removal was not closed with excessive force;
(f)Treat the condition of the Plaintiff's right leg post operatively;
(g)Measure the alignment of the Plaintiff's right leg post operatively from time to time;
12.Following the surgery pleaded in paragraph 14 above the Plaintiff suffered pain and injury.
PARTICULARS OF PAIN AND INJURY
(a)A valgus or knock-kneed deformity in the right leg.
(b)Peroneal nerve damage.
(c)Activation and/or acceleration of degenerative changes in the hip, knee and ankle.
(d)Activation and/or acceleration of pain in the hip, knee and ankle.
(e)An inverted right foot.
(f)Muscle weakness.
(g)Fractures of the tibia and instability which caused or contributed to (a) to (f) above.
('the injuries')
13.The injuries were caused by the negligence of the Defendant.
PARTICULARS OF THE DEFENDANT'S NEGLIGENCE
The Defendant was negligent in that he:
(a)removed a wedge of bone from the Plaintiff's upper right tibia that was too large and resulted in overcorrection;
(b)caused, allowed or permitted the osteotomy to progress through the Plaintiff's tibia thus creating a fracture;
(c)caused, allowed or permitted rotation of the tibia in a medial direction causing the Plaintiff's right foot to invert inwards;
(d)closed the wedge caused by bone removal with too much force;
(e)failed to recognise and treat the fracture by immobilisation post surgically;
(f)failed to measure the alignment of the Plaintiff's right leg post operatively from time to time."

"FURTHER RE-AMENDED DEFENCE

Dated 11 August 2006
2.The defendant admits paragraph 3 of the Statement of Claim and says further that the plaintiff also sought advice in relation to whether it was time for him to have some sort of surgery or even total knee replacement for his knees.
3.As to paragraph 4 of the Statement of Claim, the defendant says that:
3.1The plaintiff gave a history that inter alia:
(a)he was involved in a motor cycle accident at age 18 years and had injured both his knees;
(b)he underwent bilateral knee arthroscopic surgery 8 years ago by Mr Don Webb and he was informed at that time there was no more articular cartilage left;
(c)Both his knees had been symptomatic and constantly painful for the last few years but more progressive in the last six months, the right side worse than the left side;
(d)when walking he felt pain on immediate weight-bearing and he could walk for approximately 20-30 minutes; and
(e)he was coping overall at the present time and wished to continue working.

3.2On examination, it was noted that the plaintiff was slightly overweight and had:
(a)bilateral genu varus deformity in both knees, the right more severe than the left side;
(b)in the right knee obvious osteophytes along the medial joint compartment;
(c)in the right knee, a tender medial joint with no detectable effusion;
(d)full extension and flexion the right knee with no instability in the right knee joint;
(e)in the left knee obvious osteophytes along the medial joint compartment which were less symptomatic than those in the right knee;
(f)in the left knee a tender medial joint with no detectable effusion which was less symptomatic than the tender medial joint in the right knee; and
(g)full extension and flexion in the left knee with no instability in the knee joint;

3.3X rays taken on 10 June 1997 showed end stage loss of articular cartilage of the medial joint compartment of the right knee and patello‑femoral arthritis.
3.4At the examination he advised the plaintiff inter alia that:
(a)he suffered from a varus deformity in both knees;
(b)he had bilateral medial joint arthritis, with the right side more severe than the left;
(c)if in the future his right knee became more symptomatic and he was thereby rendered unfit to work, he would require initial arthroscopy and possible proximal tibial osteotomy;
(d)it was possible to get good mileage out of a proximal tibial osteotomy;
(e)given he was only 51 years of age, total knee joint replacement should be avoided for as long as possible.

3.5The defendant says further that at the examination he did not discuss the risks associated with proximal tibial osteotomy surgery because no immediate surgery was recommended.
3.6Otherwise, the defendant denies paragraph 4 of the Statement of Claim.

4.The defendant admits sub-paragraphs 5(a), 5(b)(ii) and 5(b)(iii) of the Statement of Claim and denies sub‑paragraphs 5(b)(i), 5(b)(iv), 5(b)(v), 5(b)(vi) and 5(b)(vii) of the Statement of Claim. The defendant says further that:
4.1he performed the surgery described in sub‑paragraph 5(h)(i) using the Sulzer High Tibial Osteotomy system.

5.Save to admit that he owed the plaintiff a duty of care to exercise that degree of reasonable care required of an orthopaedic surgeon in disclosing information about the nature, material risks and benefits of proximal tibial osteotomy surgery, and the viable and reasonable alternatives to proximal tibial osteotomy surgery, the defendant denies paragraph 6 of the Statement of Claim. The defendant says further that he properly advised the plaintiff about the nature, material risks and benefits of proximal tibial osteotomy surgery, and the viable and reasonable alternatives to proximal tibial osteotomy surgery at consultations at his rooms on 6 August 1997 and 13 August 1997.
PARTICULARS
The plaintiff was advised inter alia that:
5.1in his circumstances, and given that conservative measures had already been tried by the plaintiff's general practitioner, a proximal tibial osteotomy was the most appropriate treatment to try to return him back to work and provide relief to his right knee pain;
5.2proximal tibial osteotomy surgery would have the effect of transferring the mechanical loading of his knee to the good lateral joint compartment for pain relief;
5.3the degree of success of proximal tibial osteotomy surgery was variable and therefore difficult to predict;
5.4the degree and extent of the pain relief (if any) which a proximal tibial osteotomy would bring about could not be guaranteed;
5.5proximal tibial osteotomy surgery would not completely eliminate his medial joint arthritic pain;
5.6an alternative to proximal tibial osteotomy surgery was a total knee joint replacement which he would eventually require but that it was best to delay total knee joint replacement for as long as possible;
5.7there were risks involved in proximal tibial osteotomy surgery including:
(a)damage to blood vessels and nerves; and
(b)general risks of surgery including inter alia anaesthetic complications, infection, deep vein thrombosis or embolism, and death.

6.The defendant says further that the plaintiff was keen to proceed with the proximal tibial osteotomy surgery on 15 August 1997 and elected to do so notwithstanding advice from the defendant that the timing of surgery was not ideal in light of the plaintiff's development of bronchitis at the time.
7.The defendant admits that he did not inform the plaintiff of the matters pleaded in paragraphs 5(b)(i), 5(b)(iii), 5(b)(iv), 5(b)(v), 5(b)(vi), 5(b)(vii), 5(b)(viii), but denies that by failing to do so he breached his duty of care owed to the plaintiff as alleged in paragraph 7 of the Statement of Claim or at all, and denies the allegations under the heading 'Particulars of Breach' in paragraph 7.
8.Save to admit that the plaintiff agreed to undergo the proximal tibial osteotomy surgery on his right leg, the defendant does not admit paragraph 8 of the Statement of Claim.
9.Save to say that the defendant did properly advise the plaintiff in relation to proximal tibial osteotomy surgery, the defendant does not admit paragraph 9 of the Statement of Claim.
10.The defendant denies paragraph 10 of the Statement of Claim and says further that:
10.1the plaintiff underwent an arthroscopy and proximal tibial osteotomy surgery on the right leg on 15 August 1997 ('the PTO Surgery') at the hands of the defendant at St John of God Hospital Subiaco;
10.2there was extensive complete degeneration of the medial joint compartment with a ragged and torn medial meniscus;
10.3in the lateral joint compartment the mid portion of the lateral meniscus was torn and this was trimmed;
10.4in view of the overall good status of the lateral joint compartment proximal tibial osteotomy, removing a 12 degree wedge and rigid fixation (HTO Sulzer) was effected;
10.5good correction was obtained and the plaintiff's knee which was previously in genu varus was in valgus alignment post operatively;
10.6the plaintiff underwent proximal tibial osteotomy surgery on the left leg on 4 September 1998 at the hands of the defendant at St John of God Hospital Subiaco.

11.Save to admit that the defendant owed to the plaintiff a duty of care to exercise that degree of reasonable care required of an orthopaedic surgeon in the performance of the PTO Surgery and that this duty required him to ensure that the wedge of bone removed from the plaintiff's upper tibia was correctly measured, to ensure that the wedge of bone removed from the plaintiff's tibia was not too large so as to result in an amount of overcorrection that was more than was reasonably required to transfer the mechanical loading of the plaintiff's right knee to the good lateral joint compartment, and to ensure that the tibia bone was not closed with excessive force after the removal of the wedge of bone, the defendant denies paragraph 11 of the Statement of Claim.
12.Save to admit that:
12.1following the PTO Surgery the plaintiff's right knee was in valgus alignment which had been surgically intended;
12.2as at April 2001 the valgus alignment of the plaintiff's right knee had increased since the PTO Surgery to 15 degrees when standing;
12.3after the PTO Surgery the plaintiff suffered degenerative changes in his right ankle and an inverted right foot, and
12.4during the PTO Surgery the plaintiff's tibia was fractured, the fracture extending from the end of the osteotomy cut to the medial cortex of the tibia,

the defendant denies paragraph 12 of the Statement of Claim.
13.The defendant denies that he was negligent as alleged in paragraph 13 of the Statement of Claim or at all, denies that the injuries pleaded in paragraph 12 of the Statement of Claim were caused by any negligence on his part as alleged in paragraph 13 of the Statement of Claim and denies the allegations under the heading 'Particulars of Defendant's Negligence' in paragraph 13 of the Statement of Claim.
13A.Further to paragraphs 12 and 13 above the defendant says that:
13A.1The amount of valgus alignment of the plaintiff's right knee as at April 2001 was caused by:
(a)the mechanical loading to the lateral joint compartment following the PTO surgery;
(b)the stretching or wearing of the ligaments surrounding the knee joint;
(c)avascular necrosis of the proximal lateral tibia;
(d)the progression of osteoarthritis in the right knee joint;
(e)an inversion injury to his right ankle suffered in or about August 1999;
(f)diabetic arthropathy;
(g)diabetic amyotrophy – weakness affecting the thigh muscles causing weakness and imbalance at the knee; and/or

(h)periodic, intermittent steroid treatment for his bronchitis.

13A.2If, which is denied, the plaintiff did suffer degenerative changes in the hip and right knee following the PTO Surgery such degenerative changes were caused by his:
(a)osteoarthritis; and/or
(b)type II diabetes condition.

13A.3If, which is denied, the plaintiff did suffer pain in the hip and right knee following the PTO Surgery such pain was caused by the plaintiff's osteoarthritis.
13A.4The degenerative changes in the plaintiff's right ankle were caused by:
(a)an inversion injury to his right ankle suffered in or about August 1999;
(b)his neuropathic ankle joint; and/or
(c)osteoarthritis.

13A.5The inversion of the plaintiff's right foot was caused by:
(a)the degenerative changes in the plaintiff's right ankle.

13A.6If, which is denied, the plaintiff did at any material time suffer from internal rotation of the tibia and a consequential intoed gait such internal rotation was the result of his bow leggedness."

"REPLY
Dated 7 August 2006

The Plaintiff replies to the Amended Defence.
1.In relation to paragraph 5 of the Amended Defence, the Plaintiff says that if, which is denied, the Defendant advised the Plaintiff of the matters contained therein, such advice was inadequate and insufficient in order to obtain the Plaintiff's informed consent.
PARTICULARS
(a)It was the duty of the Defendant to warn the Plaintiff that there was a risk of intra operative fracture of the tibia which, if not recognised, could lead to a failure of the PTO surgery;
(b)There was a risk that a fracture could occur in the immediate post operative term due to pressure on the joint in combination with the instrumentation, which, if left untreated could result in a failure of the PTO surgery.

2.In relation to paragraph 6 of the Amended Defence the Plaintiff waited for his bronchitis to settle down before proceeding with the surgery.
3.In relation to paragraph 10 the Plaintiff admits the PTO surgery took place at St John of God Hospital Subiaco and that surgery on the left leg took place on 4 September 1998 at St John of God Hospital Subiaco, but the Plaintiff otherwise does not admit the allegations in this paragraph.
4.In relation to paragraph 11, the Plaintiff says that the Defendant cannot deny that the osteotomy proceeded through and fractured the Plaintiff's tibia causing instability which required treatment by immobilisation.
PARTICULARS
In a post operative x-ray taken 4 days post surgery on 19 August 1997, it ought to have been clear to the Defendant that the Plaintiff had high tibial fractures occurring either intra operatively or between the operation date and 19 August 1997. It was further evident from the said x-ray that so much force had been applied to close the wedge cut out during the PTO surgery that the screws holding the plate had bent under pressure.
5.In relation to paragraph 12 the Plaintiff pleads that:
(a)Following the PTO surgery, whatever was intended, would not have been more than 2 degrees of valgus;
(b)No Maquet views were undertaken or any other measurements;
(c)Post operatively on 19 August 1997 the right leg was in 10 degrees of valgus;
(d)This was excessive;
(e)The Plaintiff informed the Defendant in subsequent surgical consultations that the degree of valgus was excessive;
(f)The degree of valgus post surgically contributed and the unhealed fracture contributed to degeneration in the knee and ankle joints and to the function of the nerves in the right lower limb resulting in further increase in the degree of valgus;
(g)The Plaintiff pleads that any degenerative changes in his right ankle were pre-existing and were activated, aggravated or contributed to by the degree of valgus and the fracture of the tibia.

6.In relation to paragraph 13 the Plaintiff pleads that all the pleaded injuries were as a result of the fracture of the Plaintiff's right tibia evident on the x-rays of 19 August 1997, which remained untreated and ought to have been immobilised by the Defendant.
7.In relation to paragraph 13A the Plaintiff pleads:
(f)The combination of the untreated tibial fracture and the degree of valgus caused or contributed to excessive mechanical loading in the lateral joint compartment following the PTO surgery;
(g)The combination of the untreated tibial fracture and the degree of valgus caused or contributed to stretching or wearing of ligaments around the knee joint;
(h)The combination of the untreated tibial fracture and the degree of valgus caused or contributed to avascular necrosis of the proximal lateral tibia;
(i)The combination of the untreated tibial fracture and the degree of valgus caused or contributed to the progression of osteoarthritis in the knee joint."

Law to be applied

The defendant had a duty of care, the standard of which is that observed by the ordinary skilled orthopaedic surgeon; Rogers v Whitaker (1992) 175 CLR 479 at 483 and 487. The standard is not determined solely, or even primarily by, reference to the practice followed or supported by a responsible body of orthopaedic opinion. The principle, particularly in the field of non‑disclosure of risk and the provision of advice and information, is that it is for the Court to adjudicate upon what is the appropriate standard of care after giving weight to all relevant available evidence: Rogers v Whitaker (supra) at 483, 487 and 489‑490, Rosenburg v Percival (2001) 205 CLR 434 at 439, 453, 477‑478 and 499. A surgeon is under a duty of care to warn a patient of all material risks inherent in the proposed surgery. A risk is material if, in the circumstances of a particular case, a reasonable person in the patient's position, if warned of the risk would be likely to attach significance to it or if the medical practitioner is or should reasonably be aware that the particular patient, if warned of the risk, would be likely to attach significance to it: Rogers v Whitaker (supra) at 490. Further, the plaintiff must show that had he been informed of the relevant risk, then, he would not have proceeded to surgery: Chappel v Hart (supra) at 257. Again, it is not the medical profession which determines the materiality of a risk, but rather, the Court is to do so utilising subjective and objective tests and common sense notions. However, acceptable medical or surgical practice is a useful guide for the Court. A medical practitioner must warn a patient of material risks inherent in medical treatment.
As to surgical negligence, the plaintiff must show that the surgery in this case contributed to his symptoms, the progression thereof and the resulting condition. The defendant must establish with some reasonable measure of precision other matters which, of their own, would have or did contribute to the plaintiff's symptoms, the progression thereof and the ultimate result: Watts v Rake (1960) 108 CLR 158 and Purkess v Crittenden (1965) 114 CLR 164.
The plaintiff must, to the required standard, prove a material causal connection between the negligence complained of and the damage suffered. Causation is a question of fact to be determined after analysis of all available evidence as a matter of common sense. The "but for test" is not a comprehensive and exclusive test of causation, rather, a value judgment may be called for: March v E & MH Stramare Pty Ltd (1991) 171 CLR 506, Bennett v Minister for Community Welfare (1992) 176 CLR 408 and Medlin v State Government Insurance Commission (1995) 182 CLR 1 and Chappel v Hart (1998) 195 CLR 232. A causal connection will be material if it is shown on the evidence not to have been negligible. Once the plaintiff proves that a defendant has breached his or her duty of care, and that such breach has been followed by injury within the area of foreseeable risk, a prima facie causal connection will be established and the defendant will bear an evidential burden to show that such breach has not had any effect. However, once there is sufficient evidence to displace the plaintiff's prima facie case, it remains for the plaintiff upon the whole of the evidence to show that the injury was caused by the defendant's negligence (Bennett v Minister for Community Welfare, supra at 420‑421). .

The plaintiff's evidence

The plaintiff gave evidence that he consulted the defendant who recommended against the plaintiff having a total knee replacement and who discussed with him the HTO procedure as follows:
(a)it would buy the plaintiff a bit more time so that he could continue his working life;
(b)the defendant did not tell the plaintiff how much time he was buying him;
(c)the procedure would not relieve him entirely of pain, but, would remove at least half, or even more than half, of it; and
(d)the defendant did not mention any risk factors.
In consequence of this, the plaintiff underwent the surgery on 15 August 1997, following which he had a burning pain down the front of his leg into the bottom of his ankle. His foot and toes were tingling. Although the burning pain improved over three to four weeks, the tingling and numbness in the foot remains to the present day.
On 28 October 1997, the plaintiff attended the defendant for review and told him that his right leg felt 75 per cent better in terms of symptoms. The burning sensation had disappeared, but the plaintiff still had tingling and numbness in his toes and right foot. This was not raised with the defendant. The plaintiff returned to work on 7 November 1997 on light duties and thereafter, he returned on full duties in an unexceptional way.
When he returned to work, the knee felt better and the pain was much less. However, he began to experience pain in the right ankle and leg, together with cramping in the calf. He also noticed that there was a slight bone starting to show on the side of his right foot. At review at the end of October 1997, the plaintiff did not inform the defendant of tingling and numbness in his foot because he thought "it would eventually go away".
By the end of 1997 after a day at work, the plaintiff noted that his right foot began to turn inwards and that he could see a knobbly bone on the side of the foot. He thought that was part of the surgical procedure, although the only surgery was performed just below the knee.
In March 1998, the plaintiff returned to the defendant with respect to increasing left knee pain. He was satisfied with the result of the right knee surgery. He was walking better and told the defendant that the previous pain in the medial joint compartment had disappeared. He did not complain of tingling and numbness in the toes or foot.
On 25 June 1998, the left knee pain was getting worse. The right knee pain had however improved 50 to 60 per cent.
The plaintiff underwent an arthroscopy of the left knee on 26 June 1998 and shortly thereafter, he telephoned the defendant and told him that he had 50 to 60 per cent pain relief in the right knee.
The defendant recommended that the plaintiff undergo a left HTO and an operative procedure was booked for 4 September 1998. Prior to attending that surgery, the plaintiff consulted Mr E Trinajstic, an orthopaedic surgeon, who informed him that the only surgical alternatives were a total knee joint replacement or an HTO. The problem in having the knee replacement was that there was a real likelihood that such would fail early and another procedure would be required. The plaintiff could not recall whether Mr Trinajstic said that the HTO would wear out at between five and ten years, but, he did say, that, the HTO was the best option, was not a permanent cure, and that it was a time buying procedure in the same fashion as the defendant had told him with respect to the right knee.
On 2 September 1998, the plaintiff attended the defendant to confirm the left HTO on 4 September 1998 and at the same time, told him that the right knee had produced a 50 to 60 per cent improvement following the operation on that knee.
The plaintiff said in evidence that by September 1998, his right ankle was turning in a bit and there was still tingling in the toes and numbness. These matters were not reported to the defendant.
The plaintiff told the defendant that he was happy that he did not have any burning pain following the left HTO procedure. This absence of pain actually made him think that the operation had not been performed at all.
On 21 October 1998, the plaintiff told the defendant that his right knee had improved on its pre‑operative condition. He was still getting tingling and numbing in the toes and bottom of the foot, but this was still not reported to the defendant.
Following this left knee HTO, the plaintiff probably could have gone back to work, but, his employer was offering a redundancy package, which he took in December 1998, following advice from the defendant to seek lighter employment. He did this because he wanted to continue working and to have a longer working life, and so he looked for lighter work. If the redundancy had not been offered, then the plaintiff would have continued working at Newman. In October 1998, the plaintiff and his wife purchased the Kondinin Road House Motel for $140,000. They then operated that business.
In 1999, the plaintiff had less pain in the right knee. It was 50 to 60 per cent better than what it had been prior to the HTO, although he still had numbness and tingling in the sole of the right foot and in his toes and ankle. He noticed that his right ankle was starting to move in an inward direction, as if he were pigeon‑toed. His right leg was also weaker.
In about September 2000, the plaintiff's right ankle was "starting to pain", roll and give way. He had not previously had such ankle pain, even though he had tripped off a ledge in mid 1999. The plaintiff told another orthopaedic surgeon, Mr J M Hill, that, he had not had ankle trouble prior to the end of 1999. Also in September 2000, the plaintiff had an angina attack.
In October 2000, the plaintiff consulted the defendant with respect to his ankle complaint and told the defendant that he had suffered a right ankle roll about 14 months previously when he slipped off a kerb, but, he denied that this pain had followed since he slipped off the kerb. The plaintiff also said, that, the alignment of his right knee had not changed since September 1998 when he last saw the defendant. He also saw a rheumatologist, Dr J Edelman, who asked the defendant if anything surgical could be done for the plaintiff's right ankle. As the plaintiff was then due to receive a stent in his heart, the defendant did not think that the plaintiff would be fit for an anaesthetic for at least six months.
Around February 2001, the plaintiff began using crutches and subsequently, a calliper, which he still wears for his right leg. He decided against any operative procedure in respect of the right ankle because he is diabetic. The calliper costs $1,000 and lasts 18‑24 months.
On 5 April 2001, the plaintiff attended Mr Michael Alexeef, orthopaedic surgeon, regarding his right ankle.
In May 2001, the plaintiff and his wife sold the Kondinin Road House Motel for $100,000 plus stock of $26,000.
By May 2001, the plaintiff was walking on the outside of his right foot. In July 2001, he underwent corrective surgery to the right tibia with Mr Alexeef, after having been reviewed by six other orthopaedic surgeons. This surgery resulted in significant improvement to the right ankle, but the tingling and numbness in the right foot "lessened, but it was still there".
The plaintiff also revealed in evidence-in-chief that he has high blood pressure and cholesterol problems.
In cross‑examination, the plaintiff indicated that his further medical complaints related to asthma, oesophageal reflux, angina, osteoarthritis of the left shoulder requiring total joint replacement, and osteoarthritic changes in the lumbar spine. He has type 2 diabetes.
In January 1997, the plaintiff suffered a soft tissue injury in the lower back. He suffered a left shoulder injury in 1996, and also back strains, which he also suffered in October 1995.
In 1988, the plaintiff fell off a motor cycle resulting in both knees "blowing up". In about 1998, he underwent bilateral knee arthroscopies which indicated that no more cartilage was left in the knees and thereafter, he had constant knee pain with arthritis in each knee.
Also in cross examination, the plaintiff recalled, that, the defendant told him he should avoid having a total knee joint replacement for as long as possible. He recalled that there was discussion about the general nature of the HTO, as a result of which, he would be knocked‑kneed, as opposed to bow‑legged. He could not recall if the defendant had said to him, that, the aim of the HTO was to improve his symptoms for six to seven years, but the defendant did say to him that the procedure would not cure his pain relief permanently. He was aware, that the HTO would provide temporary relief to delay him having a total knee joint replacement. In other words, "he was buying me time". The procedure would "cut the pain barrier down. It wouldn't get rid of all the pain, but some". He could not recall if the defendant told him there was a risk to the blood vessels and nerves. He could not recall whether the defendant advised him of deep vein thrombosis or embolism. He did not mention to him the danger of death. He said that he had not been told of risk or damage to the peroneal nerve, but if he had, then, he would have sought more advice, but probably would have proceeded with the surgery had he been given that advice. He was scared of having a total knee joint replacement. If it were more appropriate than any other form of surgery, then, the plaintiff would none‑the-less have proceeded to have the HTO rather than alternative surgery.
Further in cross‑examination, the plaintiff said that he was off pethidine within three days after the operation and on the fourth day, he began ambulating on crutches, but he had tingling and numbness in his toes with a burning sensation.

The failure to inform

Paragraph 7 of the statement of claim alleges that the defendant failed to inform the plaintiff of identifiable risks associated with surgery. There are seven particular risks identified.

Over-correction causing knee deformity

It is conceded by the defendant, that, in the pre-operative planning, it is possible to make a mistake in measuring the size of the wedge to be removed. If it had been planned, by mistake, to remove too large a wedge, then, that would be negligent. The over-correction is pleaded as a risk "associated with the surgery".
The defendant did not tell the plaintiff that a risk of HTO was that over‑correction would cause knee deformity. Given my finding below that the defendant did not remove too large a wedge at surgery and thereby over‑correct, nothing then turns on this particular.
I will further comment on this particular below.

HTO would not relieve the plaintiff's symptoms permanently

It is not so much that this is a risk associated with surgery, but, the fact is that from the outset, the plaintiff approached his surgery on the basis that it was of a temporary nature in the sense that it would "buy me time". The plaintiff well knew that the purpose of the surgery was to provide pain "relief", whilst at the same time deferring the need for a total knee reconstruction which would have the benefit of enabling the plaintiff to remain at work and which he would not be able to do if he had the knee replacement at too early an age. The plaintiff knew that his symptoms would not be relieved either totally or permanently.
This allegation is not made out.

There was a risk of injury or damage to the peroneal nerve

It is accepted by the defendant that he did not warn the plaintiff of this risk. Damage to the peroneal nerve has been alleged. The risk is however low when the HTO surgery is performed using the HTO system.
The defendant had performed this kind of surgery on many occasions in the past. He has a device which he demonstrated during the trial to ensure that damage was not caused to the peroneal nerve.
The defendant needed to make the plaintiff aware of the risk in order to ascertain the plaintiff's attitude and to provide such further explanation as the plaintiff might have requested.
The plaintiff said that he would have sought out more advice had the defendant explained to him the risk of damage to the peroneal nerve prior to surgery (less than 5 per cent). Had the nature of the risk been explained to the plaintiff, then he said that he "would have probably gone ahead with the surgery in comparison to having the whole knee replaced". It should be noted that peroneal nerve damage is also a risk of surgery involving a total knee replacement. There was no other surgery of choice available to the plaintiff.
It is not disputed that the HTO was the most suitable surgery for the plaintiff. Conservative treatment was no longer an option, such that, although pleaded, the plaintiff did not pursue such allegation at trial. The HTO procedure was therefore an inevitable occurrence in that it was the preferred treatment of choice such that if properly advised, my finding is that the plaintiff would have proceeded with that surgery in any event. The risk to the peroneal nerve would have remained. No steps could have been taken to remove it, other than that the defendant used his surgical device referred to above.
However, in the event, I find that the peroneal nerve was not damaged in surgery and so, nothing turns on this particular.
I will further comment on this particular below.

There was a risk of activation and/or acceleration of degenerative changes in the hip, knee and ankle joints and post operative increased pain

There is no evidence that HTO carries with it the risk of activation and/or acceleration of degenerative changes or post operative increased pain in the hip or ankle joints.
Insofar as the knee joint is concerned, the HTO results in the transfer of the mechanical loading of the knee from the damaged medial joint compartment to the good lateral joint compartment. The increased loading on the lateral joint compartment is therefore likely to result in activation and/or acceleration of degenerative changes therein. That could also produce increased pain therein. However, it must be remembered that the purpose of the HTO was to defer the need for a total knee reconstruction. The plaintiff was aware that the HTO was neither a permanent nor total solution to his problems. It is therefore a misconception to allege that one of the risks of the procedure is in fact the outcome of the procedure.
This allegation is not made out.

There was a risk of development of muscle weakness in the whole of the limb

Temporary muscle wastage and weakness during the recovery period following surgery is a given and is not a risk of surgery.
The plaintiff's expert witnesses do not suggest that this is a risk of the surgery and the defendant's expert witnesses say that it is not a risk of surgery, such that this particular is not made out.

Difficulty converting to knee replacement surgery

The defendant concedes that he did not inform the plaintiff of this, but he denies that there was any duty to do so because it is an incorrect proposition. There may be some scarring, but trained surgeons should be able to cope with that. This allegation is not made out.

The osteotomy could progress into fractures of the remaining tibia

Apart from Dr J Crockett, orthopaedic specialist, who has not been involved in surgery of this kind for over 30 years and who had no experience of the natural knee HTO as performed by the defendant, all other experts gave evidence that HTO surgery may result in a stress fracture to the medial cortex of the tibia which does not compromise the result of the procedure. On the evidence however, there is a risk of HTO surgery that there may be an intra articular fracture.
Mr Alexeef said that he tells his patients that if there is a fracture problem, then, it will be fixed "there and then". Mr C Thrum, orthopaedic surgeon, also indicated that he warns patients of this. However, given that it is a small risk and that it can be readily cured, as indicated by Mr Alexeef, a patient would not attach such significance to that risk that they would not undergo such surgery if they were told of it and the availability of a ready cure, and hence, if there be a duty to warn in respect thereof in the sense required by Rogers v Whitaker, my finding is that in the circumstances in which he found himself, the plaintiff would have proceeded to surgery in any event upon such information being given to him.
Given my comments regarding failure to warn the plaintiff of damage to the peroneal nerve, which I repeat here, I find that this particular has not been made out. I also refer to my reasons below regarding the fractures.

Further comments - failure to warn

There is a common thread to the allegations of:
"1.Over‑correction would cause knee deformity;
3.There was a risk of injury or damage to the peroneal nerves supply the lower limbs; and
8.The osteotomy could progress into fractures of the remaining tibia".
I find that had the first and third these warnings been given, then, the plaintiff may have sought further explanation. He gave evidence that he would have done so for the peroneal nerve. Then, with respect to over‑correction, he would have been told of the mechanical device used to perform this surgery such that over‑correction could only be a problem caused in the planning stage. He would also have had the benefit of the defendant's explanation and a demonstration of his device to prevent damage to the peroneal nerve. He would also have been told of further fractures being part of the procedure and that indeed, the fracture to the medial cortex of the tibia was a usual occurrence and how any such fractures can be readily dealt with.
Having had the benefit of seeing and hearing from the plaintiff in his evidence, and knowing that he wished to remain in work whilst at the same time relieving pain, but not yet wanting to undergo a total knee replacement of which he was scared, my view is that with the risks of over‑correction, the injury to the peroneal nerve and the possibility of further fractures being explained to him, that, he would have elected to proceed with the surgery. He said as much with respect to the peroneal nerve. On this view, the failure to discuss these matters with the plaintiff has not caused the plaintiff to undergo surgery which he would not otherwise have done.
If I am wrong on this, then, nonetheless, the plaintiff has not given any evidence that had he been told of the risks of over-correction and further fractures from the HTO surgery, then, he might not have proceeded with the HTO surgery. Rather, he may have sought further advice, but my finding is that such advice would only have comforted the plaintiff to proceed with the HTO. Indeed, it is telling that in 1998, one year after the surgery, he discussed such surgery with Mr Trinajstic and then underwent HTO surgery on the left lower limb performed by the defendant.
In the circumstances, notwithstanding that the defendant failed to inform the plaintiff of three abovementioned identifiable risks associated with surgery, I find that the plaintiff would have proceeded to have the HTO in any event once these risks had been explained to him, what steps might have been taken to prevent them from occurring and in the event that they occurred what could be done to rectify them. He would also have been told of the degree of risk of them occurring, such that not only would it have been unreasonable for the defendant to say that he would not have proceeded with the HTO surgery, but, I find that he would have elected to undergo such surgery. There was really no other choice apart from the more serious total knee replacement, and the plaintiff did not want that surgery. The HTO bought him "time", at least partial pain relief and enabled him to keep working until the total knee replacement was required. His only choice of treatment was surgical. Apart from HTO, there was no other surgical option open to him and conservative treatment was no longer an available option.

Negligent surgery and post-operative negligence

There are six particulars of negligence arising out of the surgery as outlined above.

Removal of too large a wedge resulting in over‑correction

The purpose of the HTO surgery was to change the plaintiff's right leg from being varus to valgus. It was necessary to calculate the appropriate size of the wedge to be removed to achieve this purpose. The defendant accepts that he was not to remove too large a wedge because if he did so, then, that would over‑correct the problem.
The parties agree, that, the plaintiff's right knee was in 10 degrees of anatomical femoral tibial varus alignment prior to surgery and that the appropriate surgical procedure was to remove a 12 degree wedge of bone from the lateral side of the tibia in order to achieve 7 to 10 degrees of anatomical femoral tibial valgus alignment, which would then transfer the mechanical loading of the knee from the damaged medial joint compartment to the good lateral joint compartment.
The evidence establishes that the ideal amount of valgus alignment following HTO surgery measuring the tibial femoral anatomic alignment is 7 to 10 degrees, but that anything between 5 and 13 degrees of valgus alignment is acceptable. When performing this surgery, it is appropriate that not only should it achieve the required degree of valgus alignment, but also, it is necessary that the surgery at the clinical level achieve pain relief and improve function.
The defendant's evidence is that he removed a 12 degree wedge from the lateral side of the tibia, such that he did not excessively over‑correct the plaintiff's knee, and it was never put to him in cross‑examination that he had removed more than 12 degrees. Again, it is necessary to recall that the HTO procedure requires pre‑surgical planning to determine the size of the wedge to be removed, and that this is then translated at surgery by inserting a calibrated saw into a slot on the oblique osteotomy jig. The operation record records a 12 degree wedge being removed.
The evidence of the plaintiff's expert, Mr Alexeef, is that the surgery achieved the required change from the pre‑operative 10 degrees varus alignment to 10 degrees of valgus alignment and that he was unable to find any evidence of over‑correction during the surgery.
It is also the case, that, after surgery, the plaintiff reported significant pain relief in his right knee throughout the various consultations he had with the defendant, details of which I have outlined above. This does not support any claim for over-correction. Nor did the plaintiff complain about the angle or appearance of the right knee and leg with the defendant, which again does not suggest over-correction.
Mr Thrum and Professor A P Skirving, orthopaedic surgeon, could not find over‑correction in the post operative x-ray. Only Dr Crockett alleged over‑correction, but, I do not accept his evidence because he had not performed an HTO procedure since 1972 or 1973. He does not have any experience in using the osteotomy jig which is later technology to that ever used by Dr Crockett. The number of HTO procedures performed by him were "probably half a dozen" and those were in training and under supervision. Indeed, he suggested that the removal of a 12 degree wedge should have led to the plaintiff having 2 degrees of post operative anatomical femoral tibial valgus alignment, but he was mistaken in that respect, and when he was referred to the natural knee high tibial osteotomy system surgical technique booklet, he agreed that the removal of the 12 degree wedge was the correct size wedge to be removed. Then, he agreed that such should achieve 7 to 10 degrees of corrected valgus alignment. All other surgeons agreed likewise.
Dr Crockett also sought to show that there had been over‑correction by overlaying pre and post surgery x-rays. However, as Mr Thrum pointed out, the difficulty with that exercise is to know that the knee and leg had been in precisely the same plane in each of the pre and post operative x-rays. Also, these x‑rays were taken three and six years after the surgery, by which time the right ankle was grossly degenerate. That causes its own problems.
During his evidence-in-chief, Dr Crockett said that he thought that the post operative valgus alignment was "a lot". When cross‑examined about this, he said that he believed the result to be 14 degrees of valgus alignment, based on the Maquet view dated 29 January 2001. However, all doctors, including Dr Crockett, thought that anything between 5 and 13 degrees of valgus alignment was acceptable.
For these reasons, I do not accept Dr Crockett's evidence. The appropriate size wedge was removed. This particular is not made out.

Progression of the osteotomy through the tibia creating a fracture

This particular seems to suggest that the defendant negligently created a fracture through to the medial side of the tibia, ie, completely through the tibia from the lateral side to the medial cortex as part of the cutting process. Properly understood, the fracture to the medial cortex is a usual consequence of the HTO procedure after the wedge has been removed.
Mr Alexeef, Mr Thrum and Professor Skirving all gave evidence that it is usual to extend the osteotomy cut to the medial cortex of the tibia, by cracking or fracturing the tibia. Indeed, Mr Alexeef described how he deliberately does this by drilling some holes to distribute stress. Another method involves using a chisel. It can also happen that the fracture occurs in an uncontrolled fashion when closing the wedge. To have such a fracture does not necessarily cause instability in the tibia because it is fixed with a plate and screws on the lateral side from where the wedge is taken.
Mr Alexeef referred to an alleged intra‑articular fracture which, according to him, had a vertical component to it meeting the horizontal fracture running from the edge of the osteotomy cut to the medial cortex. Only Mr Alexeef was able to see such an intra articular fracture on the x‑ray. Dr Crockett was unable to see it. Mr Thrum and Professor Skirving were unable to say that it existed. The radiologist who reported on the x‑ray did not report it. His comment was "no adverse fracture is seen".
According to Mr Alexeef, the intra‑articular fracture extended to the medial tibial condyle. This would have compromised the plaintiff's post‑operative mobilisation. He expected that this fracture, if it existed, would be "exquisitely painful" or to have at least "more pain than I would have expected". He went on to explain that when there was an unexpected fracture "You do these. You know what to expect".
Mr Alexeef gave evidence that an intra articular fracture would be likely to cause increased post operative swelling and bleeding.
The clinical evidence however does not support Mr Alexeef's view of such fracture existing because there was no increased post operative pain, swelling or bleeding, ie, bruising. Although the defendant agreed that there would be increased swelling and bleeding from such a fracture, he also said that there would be an inability on the part of the plaintiff to weight bear if there was such an intra articular fracture. However he did so in the usual way after surgery. Post‑surgery medication was unexceptional.
Further, Mr Alexeef in his oral evidence, thought that although it was a "minor (vertical) fracture", it had "the potential to be a big issue or a bigger issue longer term", but he then said that the intra‑articular fracture and "the whole segment", including the fracture to the cortex, had healed with 10 weeks by which time the plaintiff returned to work. Mr Alexeef accepted that the vertical intra‑articular fracture did not necessarily mean that there would be a poorer long term outcome.
Mr Thrum however, disputed that there was an intra‑articular fracture. His reasoning was that for this to have occurred, the screw heads would have necessarily been "pulled back" to allow the fracture. However, the screws had not moved. It was open to suggest that the supposed intra‑articular fracture seen on the x‑ray was in fact muscles at the back of the leg, which would give a similar appearance.
Accordingly, the immediate post‑operative clinical signs do not support Mr Alexeef's opinion that there was an intra‑articular fracture and nor do the x‑rays, in that they do not show the screw heads to have "pulled back", either four days post‑operatively or at any timer later. Equally, the x-rays could show muscles. To this must be added the other opinions of Dr Crockett, Mr Thrum, Professor Skirving and the radiologist that there is no such vertical fracture.
All surgeons said that a horizontal fracture to the medial cortex was neither uncommon nor unusual and did not result in any instability or otherwise compromise the effectiveness of the surgery. Mr Alexeef in fact was in favour of such a horizontal fracture.
In terms of the horizontal fracture, Dr Crockett referred to the osteotomy, being the main cut. He then referred to the osteoclasis, which is the deliberate breaking of bone to the medical cortex carried out by the surgeon. He described this in the present case as being a "crinkle" scar on the x‑ray.
Mr Alexeef described the osteoclasis as usually being a "greenstick" fracture, which, according to the Oxford Concise Medical Dictionary is "an incomplete break in a bone in which part of the outer shell (cortex) remains intact". Mr Alexeef said that the horizontal fracture he saw on the x-ray was not of the greenstick variety.
The defendant said that the horizontal fracture probably occurred when he joined the two sides of the wedge together. This is also consistent with the other orthopaedic witnesses, except for Dr Crockett, such that a fracture occurring during the compression process is not a concern in itself.
Indeed, as I have already mentioned, Mr Alexeef was of the opinion that "the whole segment" had healed within 10 weeks. In these circumstances, any vertical or horizontal fracture beyond the osteotomy cut, whether controlled or uncontrolled, had resolved within 10 weeks and the plaintiff had returned to work. Mr Alexeef reported on 1 August 2006 that the vertical intra‑articular fracture explained the subsequent progression of the plaintiff's injury into excessive valgus alignment. Contrary to this in his oral evidence, he said that such fracture would heal and that it was the horizontal fracture which may have led to "over‑correction into valgus with time", notwithstanding his oral evidence about "the whole segment" healing within 10 weeks. There was no explanation for these different viewpoints.
The notion of "over-correction into valgus with time", as Mr Alexeef put it, seems to be a misuse of words. Mr Alexeef readily accepted that there was no over-correction at surgery. He offered the evidence that the fractures had healed within 10 weeks. Whatever "subsequent progression into valgus" occurred, is something which is post-surgical. Mr Alexeef also referred to this "progression" as "drift" and that word probably better captures what occurred. I will return to this later.
This particular alleging surgical negligence is not made out.

Rotation of the tibia in a medial direction

The plaintiff says that when he returned to work on 7 November 1997, he noticed that there was a slight bone starting to show on the side of his right foot and that his right foot and toes were starting to turn inwards. By September/October 1998, he noticed that his right ankle was turning in a bit. However, he never raised this with the defendant because he thought it was a normal consequence of surgery. The plaintiff did not then see the defendant until 16 October 2000. The defendant did not notice any obvious intoeing.

Dr Crockett says that the plaintiff had medial rotation of the tibia in December 2002. He was able to observe this because of the plane in which the lateral and medial malleoli of the right ankle were shown on ankle x‑rays. It was his view, that, such was caused by the horizontal fracture of the wedge site through to the medial cortex, which caused the tibia to become unstable and therefore it rotated in a medial direction. Dr Crockett said this was "somewhat difficult to determine clinically … but has been confirmed radiologically". However, there is no evidence that the x‑rays were taken for the purpose of measuring medial rotation of the tibia by reference to the lateral and medial malleoli. Indeed, the evidence suggests that the radiologist did not know that x‑rays were required to measure rotation. The other surgeons are united in their views opposing Dr Crockett. The intoeing observed by Dr Crockett in December 2002 may have been caused by a neuropathy causing peroneal nerve dysfunction.
Mr Thrum said that it was "scientifically untenable" to suggest that medial rotation was demonstrated, as Dr Crockett said, from x‑rays of the ankle to be half way up the tibia, because it was not known whether the bone was rotating at the hip or at the tibia.
Further, all other surgeons gave evidence that it was highly unlikely or simply impossible for medial rotation of the tibia to have occurred during surgery. As Mr Alexeef said, it "just doesn't happen" using the HTO system because a plate is fixed to the tibia on either side of the wedge which has been cut into it. The plate is held in place by screws. Even allowing for the wedge which has been cut and the horizontal fracture to the medial cortex, both sides of the cut and fracture are held in position by the plate and screws. Therefore there cannot be any rotation. Indeed, Mr Alexeef said that the whole point of the HTO procedure is to do away with unstable fixation, such as Plaster of Paris.
In July 2001, Mr Alexeef performed surgery on the plaintiff's right knee, but, he did not observe any medial rotation of the tibia. Mr Alexeef did not accept that any medial rotation of the tibia could have occurred during his surgery.
Professor Skirving said that it would be difficult to rotate the tibia because it is not a soft tissue and that there is a lot of intact tissue around bones. Rotation would have to be sought after and deliberately and forcefully obtained. But, even if there had been rotation of the tibia at the time of Dr Crockett's examination, it was far more likely it had been caused by something other than the surgery. Professor Skirving was cross‑examined about this as follows (at T612‑T614):
"I think there's been some discussion about measuring the lateral and medial malleolus in the coronal plane and where they are opposite one another in a coronal plan that implies that it could have moved to that position. Would you agree with that?‑‑‑I presume what your saying is that if there's a malrotation at the site of the osteotomy.
Yes?‑‑‑One leg is internally rotated and that will change the apparent alignment of the tibia and the fibula at the ankle joint.
Yes?---The problem with that is that – several things: one is that's likely to have been the position anyway because if patients have an internal rotation of the (indistinct) so that's likely to have been his normal anatomy ‑ ‑ ‑
Can we just stop there? Not in this case. We don't know if he was pigeon‑toed?---I didn't say he was. I didn't say it was. I said it could be. I said it could be the natural – it could be associated with his varus deformity, there was an internal rotation as frequently happens so that may explain it. Secondly, it is as difficult to determine that radiologically as it is to determine alignment and the mechanical access of a knee on these x-rays without knowing the position exact – and it has to be terribly precise to measure differences of a few degrees so you'd have to know exactly the orientation of the leg, of the foot, and of the x-ray machine before making the x-ray to then draw any inference as to whether there's any malalignment at the lower end. I think that's highly unlikely that that happened.
But he's done that and he's looked at it clinically and he's come up to the conclusion that they are in a rotated position. Now, the tibia wouldn't have moved by itself would it?‑‑‑Not if it's meant to be there. As I say, that's his shape of leg. That's it. Something's happened. This is not a normal leg. These are not normal legs. They've developed bilateral osteoarthritis at a young age and a major problem with his ankle at a young age. There's something going wrong with his – something other than the surgical procedure.
What I'm saying - ‑ ‑?‑‑‑So – but that's the case. This fellow unfortunately has got a propensity to problems in his leg and all I'm saying is ‑ ‑ ‑
I wasn't intended (sic) to induce that evidence out of you, Prof Skirving, because it wasn't in relation to the question that I was on about, so if you could please just stick to what I'm getting at?‑‑‑I'm sorry.
I'm saying that if there was some medial rotation for whatever reason following the surgery – let me put it to you another way. If the tibia did move so that that position observed by Dr Crockett is accurate, and I know you're challenging the accuracy now, what I'm saying to you is it couldn't have moved there just by itself. If that's a change in movement, it couldn't have done that by itself. It would have had to be some agent like the operation or something else that caused it?‑‑‑Okay, but it's the something else that caused it that I think is far more likely, not the operation.
But tibias don't just start rotating, do they?‑‑‑No, they don't.
There's nothing that can cause a tibia to rotate on its own, is there?‑‑‑That's a normal variation, we have been through it before, but it is the internal tibial rotation that is frequently related to bow legs. That's fact.
Let's for one minute take that one away. There is no other reason that you can think of that would cause a tibia to rotate?‑‑‑No.
Other than some misadventure during surgery. Is that right?‑‑‑I'm having difficulty because I mean it's such an unusual phenomenon. I'm not accustomed to thinking about a rotation other than in the context that I've said, that it is a rotational deformity associated - ‑ ‑
So there are two possibilities? What I'm saying to you is there are two possibilities, (1) it's naturally like that or (2) it's caused by misadventure during surgery?‑‑‑It's a big concession that it is true, because I've said that it is highly unlikely to be radically – true, because to take an ordinary x-ray of a lateral, which was not taken for the purposes of trying to decide on a relationship with the distal fibula and the tibia, when the radiologist had no idea that this was the request and this was wanted to be known, but the position – would have been positioned very precisely as to be able to conclude that there was a malrotation of the distal end of the fibula and the tibia.
I might just like to get the answer there, 'I only noticed two possibilities in a case like that'?‑‑‑Well, three. I mean, the third is that it is not correct, there isn't a deformity.
That Dr Crockett is making a mistake. Is that what you're saying?‑‑‑He may be.
An easy way to tell of course would be to look at his other leg and see whether his ankle, the malleoli and the other leg are the same?‑‑‑That's the case and you could drag this out a long way. You could say – you know, I noticed, for example, if I might say, in Dr Alexeef's second operation, he didn't refer to any derotation, to correct a derotation deformity, which would have been brought to his attention at the time, so if this gentleman came back and said, 'I've got internal rotation here, I'm pigeon‑toeing' then Dr Alexeef would have said, 'I'm going to do a corrective osteotomy, not just to correct your alignment, but also to correct the malrotation that you've got.' There was no correction of malrotation at the time of the second operation that I'm aware of.
Because that wasn't there. I mean we can't put it like that because ‑ ‑ ‑?---Because if somebody is looking at something where the complaint is essentially a malalignment, a malposition, then, by golly, he would have included an assessment of the rotation completely and that would have been part of his corrective operation as a subsequent part, and as far as I'm aware Dr Alexeef did not perform any corrective rotational correction ‑ ‑ ‑".
Counsel for the plaintiff, Mr Bradford said to Professor Skirving in cross‑examination with respect to the tibia rotating "it couldn't have moved there just by itself". He is correct, but as Mr Alexeef said rotation "just doesn't happen" and "the whole point of the system is that it's a rigid fixation system", so that, the position is as explained by Professor Skirving that, "This is not a normal leg. These are not normal legs. They've developed bilateral osteoarthritis at a young age and a major problem with his ankle at a young age. There's something going wrong with his … something other than the surgical procedure". Mr Bradford put to Professor Skirving that if there was medial rotation, "it would have had to be (caused by) some agent like the operation or something else that caused it" and as shown above, Professor Skirving was of the opinion that "it's the something else that caused it I think it far more likely, not the operation". Accordingly, I find that the surgery did not result in rotation of the tibia in a medial direction. I will revert to this below when discussing the plaintiff's valgus deformity.
Before leaving this topic, it should be noted that the plaintiff submits that rotation of the tibia caused inwards rotation of the foot causing him to walk on the lateral aspect of the foot and thereby roll his ankle and foot into inversion more easily. He submits that this put more strain on the ankle which he has pleaded was already degenerate. He also submits, that, in part, this may well have led to his ankle becoming neuropathic. However, on my finding, it is wrong to suggest that the neuropathic ankle had as its genesis the medial rotation of the tibia in the HTO.

Closure of the wedge with too much force

The complaint appears to be, that, the horizontal fracture from the end of the osteotomy site to the medial cortex was caused by the compression process when the two sides of the wedge were joined together. However, as has been previously observed, this horizontal fracture is an accepted part of the osteotomy procedure. To the extent that there is such a fracture, then, as Mr Alexeef said, it can be fixed "there and then" and indeed, the plate and screws which are an integral part of the HTO procedure fixed the fracture. Recovery was as expected after surgery and the plaintiff returned to work, such that closure, whether with or without too much force, is not causative of any loss or damage. Mr Alexeef said that "the whole segment" had healed within 10 weeks
If, however, this complaint is directed towards the intra articular fracture then, such complaint must be rejected because I have already found that the intra articular fracture was not present as alleged. In any event, it had healed by the time the plaintiff returned to work. In this respect, it is suggested that the screws on the fixation device were bent and that such demonstrates excessive force having been used in closing the wedge. However, the evidence is to the contrary in that the bending of screws is routine and such demonstrates that good compression has been achieved. I have already commented on Mr Thrum's evidence as to this and on the horizontal fracture not being causative of any loss.

Failure to treat tibial fracture by immobilisation

The plaintiff alleged that the defendant had a duty to "treat the condition of the plaintiff's right leg post-operatively" (statement of claim par 11(f)). This is then particularised by allegations of failure to recognise and treat the tibial fracture and to reassess the alignment of the right leg.
I have discounted the claim that there was an intra articular fracture. If there was, then, on the evidence of Mr Alexeef who was the only expert to allege such a fracture, the plaintiff would no doubt not have dispensed with the need for pethidine after three days and he would not have been able to weight bear four days after the surgery. He would have had exquisite pain. There would have been clinical signs of such a fracture.
If, however, there had been an intra articular fracture, then, there was no need for further treatment. Likewise, if there was concern with respect to the horizontal fracture, that too did not require any further treatment because the tibia was fixed with the plate and screws. Further, there was no displacement, such that the screws fixed the bone proximal to the osteotomy rigidly. The fractures healed within 10 weeks after which time the plaintiff returned to work.
Further, Mr Alexeef would only have obtained a CT scan of the fracture site and immobilised the leg and have kept it under observation if the horizontal fracture extended not just to the medial cortex of the tibia, but vertically to the medial tibial condyle. It did not. Immobilisation was not required in the former case and there was nothing to immobilise in the latter case, as there was no vertical fracture.
Mr Thrum did not think that there was anything unusual about the horizontal fracture which had not separated and which he did not think had compromised the periosteum or the stability of the tibia. Dr Crockett was only suspicious of the fracture being unstable.
Professor Skirving also spoke of the need to create a horizontal fracture.
In the circumstances, this claim is not made out.

Failure to measure the alignment post operatively

The defendant's evidence is that there was no clinical reason for there to have been post operative measurement of the alignment of the plaintiff's right leg post operatively. To do this would require the plaintiff to undergo further Maquet views by way of x‑ray. There was no point in ordering x‑rays unnecessarily and hence it was not done.
The plaintiff's claim here relied upon evidence from Mr Alexeef that he routinely arranges for post operative Maquet views to be taken three months after surgery. However, this evidence can be tested in that he did not do so after the plaintiff underwent open wedge osteotomy in July 2001 under the care of Mr Alexeef. He would generally seek an alignment film three months after surgery, but he did not do so because the clinical signs did not warrant such x‑rays. The same point can be made about the plaintiff's post operative improvement.
Mr Thrum and Professor Skirving supported the defendant's decision to not unnecessarily arrange for Maquet views.
I also note, that, Mr Alexeef did not find there to be any medial rotating the tibia and he also found that the surgery achieved a change from 10 degrees varus alignment to 10 degrees valgus alignment, such that there was no over‑correction. It does not therefore seem that there was any damage suffered by reason of this alleged failure. This claim is not made out.
It follows, that, the pleaded particulars of surgical and post operative negligence have not been established.

Consequential injury

It is alleged that following surgery, the plaintiff suffered seven matters of consequential pain and injury as a result of the defendant's negligence.

Valgus or knock‑kneed deformity in the right leg

For reasons previously expressed, I find that the plaintiff's right knee was corrected to an acceptable range of anatomical femoral tibial valgus alignment during the surgery performed by the defendant. In the circumstances, I find that the plaintiff did not suffer from a valgus or knock‑kneed deformity in the right leg or any over-correction or rotation as a result of the surgery. Further, as I have already dismissed the alleged particulars of breach of post surgical duty referred to above, it is not open to me to find that any pleaded post surgical treatment or omission to treat contributed towards the valgus or knock‑kneed deformity.
Mr Alexeef gave evidence with respect to the progression of the plaintiff's valgus alignment due to a fracture. Here, I refer to and repeat my earlier comments under the heading "Progression of the osteotomy through the tibia creating a fracture". Mr Alexeef said "that there is no evidence of over‑correction" from surgery. He referred in evidence to the horizontal fracture from the osteotomy cut to the medial cortex that "may lead to over‑correction into valgus … with time, which sort of fits with the presentation".
However, in his report dated 1 August 2006, Mr Alexeef said that it was the vertical fracture, ie, the medial plateau fracture of the tibial condyle which explained the subsequent progression into excessive valgus alignment. I have already explained why I have not accepted the existence of this fracture.
Only Mr Alexeef could see the vertical fracture, none of the other medicos observed it and neither did the radiologist who reported on the x‑ray. Even if it was there, Mr Alexeef said that "the whole segment" had healed within 10 weeks. This included the horizontal fracture. Professor Skirving in fact gave evidence that any vertical fracture would be in a different position.
As to the horizontal fracture, all medicos agree that if it occurs in a controlled fashion, then, that is acceptable. So too is it a recognised risk of the closing of the wedge, which is also acceptable and seems to be how it occurred in this case. However, the fact of such fracture occurring in surgery has not led a medial rotation and excessive over‑correction in surgery as discussed above.
Dr Crockett said that such "crinkle" fracture extends to the periosteum, which was torn and the medial cortex had been disrupted, because of a shadow seen on the x‑ray. Such a tear would slow down the healing process. Mr Alexeef did not discuss this, but said that it was more than a greenstick fracture. Mr Thrum said that the fracture might not be a simple greenstick fracture, but the crack seen on the x‑ray had not separated from which he inferred that there was no damage to the periosteum. However, Mr Thrum said that this fracture was properly secured by screws and it did not shift, and it had not pivoted. Professor Skirving said that disruption of the periosteum activates the cells which cause the healing of the fracture as part of conservative treatment.
Mr Thrum, Professor Skirving and the defendant gave evidence that the fracture into the medial cortex would not have produced instability.
At (T232-3) Mr Alexeef thought that the fracture was "one possible explanation" for the increase in valgus alignment post operatively. He said "it's hard to say". Another explanation was avascular necrosis which would "lead to an imbalance in terms of outer and inner sides of the leg, causing him to drift over". A further explanation was "just the attritional aspects of time where you get to a certain point and because of the arthritic process, I mean, these are things that have been documented in the literature".
At (T249), Mr Alexeef was asked in re‑examination about the causes of the increase in the valgus post operatively as follows:
"… My learned friend was asking you about the causes of an increase in the valgus post operatively. He was asking about the various causes and you spoke of avascular necrosis, that it was not the ankle at all?‑‑‑I just don't believe the ankle could have led to that dramatic presentation really.
But over-correction and then the arthritic process?‑‑‑The over‑correction issue is easily put to bed. I mean, he was or he wasn't and we have seen a post‑operative x‑ray now in the last week and again today and, I mean, I would have to say that there is no evidence of over‑correction.
So when you told us that the fracture, which was not immobilised, has contributed to the ultimate presentation to you ‑ ‑ ‑ ?‑‑‑I think it probably has.
Yes. You have said so, and in what way? If you can just clarify that?‑‑‑The medial soft tissues may have been disrupted and you rely on the integrity of the medial soft tissues. Secondly, bone healing and bone growth is not a static process. There is bone deposition and bone being taken away, and then you have got a situation where clearly there is a valgus knee now, so you have got a process that is ongoing particularly on the medial side with weight now being transferred onto the lateral side, which is going to increase weight onto the lateral side and I think the experience of others have reported this in the literature, that that's why this can be an issue but it is a fine line.
Yes, but I'm referring specifically to the fracture?‑‑‑Yes.
That to me ‑ ‑ ‑ ?‑‑‑I mean, this bit here really is immaterial because that will heal. It is this bit here.
The horizontal bit, in other words?‑‑‑Yes, the horizontal component of that is what may lead to over‑correction into valgus.
With time?‑‑‑Yes"

If is difficult to understand how Mr Alexeef can say with respect to the horizontal and vertical fractures, that "the whole segment" healed within 10 weeks, after which the plaintiff returned to work and to then say that the horizontal fracture, after earlier referring to the vertical fracture, has contributed to the plaintiff's "ultimate presentation". Although counsel had earlier referred the fracture which was not immobilised, Mr Alexeef did not say that immobilisation was required. He only said that "the horizontal component of that (fracture) is what may lead to over-correction into valgus" with time.
At (T252), the following exchange took place with Mr Alexeef:
"Nonetheless there are screws put in or hardware to fix the above and below fracture part and the wedge that's been removed?‑‑‑Correct. The device basically provides a hinge on one side of the bone.
So the legs, the lower part of the tibia, the distal tibia, isn't going to rotate?‑‑‑No, no, unless the screws of missing bone but that looks like it's been expertly performed and that thing is rigid except for that fragment which is in front of the screws.
So it's not going to rotate?‑‑‑The leg won't rotate.
The tibia?‑‑‑The tibia itself, this part can't rotate but it's fixed and it's fixed there and these bones connect it to the cotyloid but this fragment here would be out the front here somewhere, of itself probably not relevant but as the process of mobilisation, the process of bone remodelling and probably the reason why it took three years, and I'm saying three years because that seems about the time that he was getting concerned about his leg and getting other opinions. We've heard he was back working at 10 or 12 weeks; he had his other leg operated on, I believe, subsequently. Now the outcome of these, you're doing an operation to prevent surgery, you're doing a preventative operation to someone who has an arthritic joint so that they can go away and do what they like for 10 years or longer. As to why the leg has drifted, as I say, we've discussed it a bit. I can't think of any other reasons, I mean, the commonest causes are things like a vascular necrosis where a fragment of bone dies and the heals and remodels." (sic).
The "commonest causes" for increased valgus to which Mr Alexeef was referring included avascular necrosis, collapse of the lateral side of the joint, arthritis, lax ligaments, changes in the femur and tibia, measurement error, osteoporosis, diabetic arthropathy and amyotrophy as stated by Mr Thrum. Infection is another common cause, although there is no evidence of that immediately after surgery.
As it happens, Mr Alexeef performed corrective surgery on the plaintiff's right knee on 9 July 2001. This was to less than 10 degrees of valgus alignment. However, in December 2002, Dr Crockett said that the plaintiff had again increased to 15 degrees of valgus. If Dr Crockett is correct, then, this tends to indicate, that, the increase in valgus is not connected to surgery, but due to one of the other possible explanations referred to above.
Mr Alexeef however denied that there had been an increase in valgus alignment between his surgery and the time of Dr Crockett's review. He said this was observational error by Dr Crockett. There is no evidence that Mr Alexeef measured the valgus alignment as Dr Crockett said he did.
The evidence from Mr Alexeef is that:
(a)the medial soft tissues may have been disrupted during the HTO;
(b)the horizontal fracture from the osteotomy cut to the medial cortex 'may lead to over-correction into valgus with time, which sort of fits with the presentation';
(c)previously he had relied on the vertical fracture for the proposition in (b) above, and his reason for this change was not explained at trial;
(d)'the fracture was one possible explanation for the increase in valgus alignment post-operatively … but it's hard to say';
(e)having given his explanation as to why the horizontal fracture 'probably has' contributed to the ultimate presentation, he concluded that 'this can be an issue, but it is a fine line;
(f)he 'can't think of other reasons', but then says 'the commonest causes are things like a vascular (sic) necrosis'; and
(g)Mr Crockett had made an 'observational error' with respect to the plaintiff's right leg increase in valgus after he had operated upon him, without any evidence from Mr Alexeef that he had measured the plaintiff's then valgus deformity.
Given the summary of Mr Alexeef's evidence, the plaintiff has not demonstrated that the surgery has caused the valgus drift at all. It "may" have. It was "one possible explanation". "It's hard to say". It "probably has … but it is a fine line", and although he "can't think of other reasons", he then says that "the commonest causes are things like a vascular (sic) necrosis" on top of which Mr Thrum provides a list of other common causes.
It cannot be said therefore that it is more probable than not that the surgery has caused or contributed to the valgus deformity or the progression thereof and the resulting condition in the plaintiff's right leg. At best, it is a matter of speculation when all of the available evidence is analysed. The "but for" test does not help the plaintiff and neither does a value judgment. It cannot be said on the evidence, that there is a causal connection between the alleged negligence complained of and the plaintiff's progression of symptoms and worsening condition. It cannot be shown that the defendant has breached his duty of care with respect to the plaintiff's valgus being a consequential injury resulting from the HTO surgery.
In looking at the other causes of the increase in valgus, it is useful to consider that the plaintiff has a Charcot joint in the right ankle as described by Mr Thrum and Professor Skirving by which the joint nerves have lost their viability. Professor Skirving noted the rapidity of the degenerative progression of the ankle and the extent of the severity of the destructive process. Osteoarthritic joints do not deteriorate like this. The most common cause for it is type 2 diabetes with which the plaintiff was diagnosed in 2001. It is not known how long before that he had such disease.
Mr Alexeef in his evidence, also thought that the plaintiff had a Charcot ankle joint, his only reservation being that, from memory, he thought that the plaintiff had pain and Charcot joints are pain free. However, his report dated 27 July 2001 reveals that the plaintiff's foot sensation was normal. In December 2002, it was sore. At T237 he said that "we were all sort of, of the view that this is probably a neuropathic joint (ie, Charcot joint) or a joint with abnormal sensation", which, over time got worse – "that's the natural history". He further said that an ankle problem can affect knee alignment.

Peroneal nerve damage

There is no dispute that the plaintiff suffered from a neurological abnormality in the common peroneal nerve of his right leg in June 2001, when Mr Alexeef found fatty substances around the peroneal nerve distally from the popliteal fossa.
The plaintiff says that following his right sided HTO surgery with the defendant, he had a burning pain in the leg and that the defendant told him this was part of the operation. It eased and disappeared within three to four weeks after the surgery. The plaintiff also said that he had a numbness in his toes and a tingling in his ankle and foot. He did not tell any of the nursing staff or the defendant about this. The numbness and tingling continue to date. He did not tell the defendant about it at post‑surgical reviews. He was also experiencing cramp in the back of his leg.
Each of the plaintiff and the defendant called a neurologist who did not themselves examine the plaintiff, but, who gave evidence based on electro physiological studies undertaken by Dr Rick Stell, another neurologist.
Dr Ross Goodhart was called on behalf of the plaintiff. He said that arising from Dr Stell's studies, there was damage to the common peroneal nerve and other nerves, including the tibial nerve. He thought they arose from a lesion in the popliteal fossa because of the absence of any abnormality in the short head of biceps muscle which is proximal to the popliteal fossa.
The defendant called Dr Peter Silbert. He agreed that there was damage to the peroneal nerve and the tibial nerve. However, he did not agree that there was an absence of abnormality in the short head of biceps muscle. What Dr Silbert said however, is that the short head of biceps is a technically difficult muscle and the findings need to be checked. However, if the findings were normal, he would not be overly concerned for two reasons. The first is that the sciatic nerve has a fascicular arrangement even in the buttocks whereby, when viewed in cross section, the axons have myelin around them and there are peroneal myelin on one side and tibial myelin on the other. When this process occurs, some parts are inflamed in some of the fibres and others are not. In this condition, inflammatory lumbo sacral plexopathy results so that some areas are involved and some are not, and that is why the short head of biceps muscle may not have had an abnormality.
Dr Silbert also said that there is no process that affects the peroneal and tibial nerves at the level of the knee, apart from rare things. However, each of the neurologists agree that the peroneal and tibial nerves have been affected in some way.
The other point to be made from Dr Goodhart's evidence is, that, he would not place a great deal of emphasis on the finding by Mr Alexeef during the corrective surgery of fatty substances around the peroneal nerve distally from the popliteal fossa. Mr Alexeef said that the nerve abnormality was distal to the popliteal fossa. Dr Goodhart said that if the nerve is damaged at a particular level, that, it is usual to find changes above that level in the nerve, ie, proximal to it. This accords what Dr Silbert said, but, if the peroneal and the tibial nerves both suffered neurological damage, then, given that they split approximately one third down the back of the upper leg from the buttock, it follows that the nerve is damaged above that point.
Further, Dr Silbert referred to wallerian degeneration which is the process whereby a nerve is interrupted proximally, such that the nutrient supply of a nerve distally is affected. Then, when the nerve is damaged due to inflammation, cutting it or any other process, the nerve lower down the leg will degenerate and the myelin will be consumed and fatty deposition will result. That nerve will grow back over time, but it will degenerate first.
Even Dr Stell did not believe that his EMG study of 12 June 2001 produced findings simply due to a peroneal neuropathy at the fibula head. It was for that reason that Dr Stell suggested an MRI scan of the sciatic nerve.
The EMG study suggests a sciatic neuropathy. This demonstrates abnormalities involving both the tibial and the peroneal nerves. The allegation that the peroneal nerve was damaged during the HTO procedure does not explain the damage to the tibial nerve. This points to damage being more proximal as consistent with the EMG suggesting a sciatic neuropathy or, it is perhaps better expressed that the allegation that damage was caused to the peroneal nerve during the HTO is inconsistent with the EMG.
Mr Alexeef thought that there had been a "traction type lesion", being a stretching or pulling of the peroneal nerve from which there was a greater possibility of recovery than if the nerve had been cut or so damaged that it ceased to function. He thought that it could have been there for 10 years.
This then brings me to what might have been the starting point in dealing with this particular alleging surgical damage and that is, that, the evidence from all medicos is that if there had been damage to the peroneal nerve during surgery, there should have been immediate symptoms noticeable in the clinical setting.
Dr Goodhart said that these included foot drop and the inability to turn the foot outwards and cramping. He did not think that swelling would be directly related to a nerve problem. He thought that placing the knee into a valgus position would result in less pressure being placed on the nerve and that if the plaintiff returned to work within 10 weeks of surgery without foot drop and a 50‑60 per cent improvement in his knee pain, then, that was not consistent with damage to the peroneal nerve during surgery.
Dr Crockett thought that medial rotation of the tibia could have led to neuropraxia of the plaintiff's common peroneal nerve by reason of mechanical stretching of the nerve. I have already rejected the suggestion of surgical medial rotation of the tibia. However, placing the knee into valgus alignment has the effect of relaxing the peroneal nerve. Dr Crockett said that the plaintiff did not report tingling and numbness to him at his first consultation on 11 December 2002. That is consistent with the lack of similar reports by the plaintiff to the defendant.
Mr Alexeef thought that the tingling and numbness which the plaintiff complains of from the time of the surgery might indicate a nerve issue but again, the fact that given that the plaintiff was working at 10 weeks, suggests that there was no motor weakness. Night cramps could be nerve related, but they are not an uncommon symptom and could be the result of vascular problems. Mr Alexeef also said, that, the HTO procedure does not place the tibial nerve at risk and placing the knee into a valgus position relaxes the peroneal nerve. He also gave evidence that the peroneal nerve runs well behind the incision made to perform HTO surgery and that generally, the surgeon does not see it because it is behind the fibula three or four centimetres below the osteotomy site. Mr Alexeef thought the scarring was significant, but could not say whether the scarring was significant on its own or whether it was a secondary response. There are many reasons why healing does not just occur where there has been insult.
Even though there were "no surprises" on the MRI, such lack of surprise related to both the tibial and the peroneal nerves. Given the findings of Mr Alexeef at surgery that there were fatty substances deposited around the peroneal nerve, it cannot be said, that, there was nothing abnormal about the tibial nerve. Even after Mr Alexeef freed the peroneal nerve, the tingling and numbness "lessened but it was still there". Given this explanation, it is unlikely that the peroneal nerve was the cause of the tingling and numbness. Notwithstanding that, Mr Alexeef thought he "definitely seemed to be improving". I also note, that, Dr Goodhart thought that if there was a release of a damaged nerve, there would be expected improvement in nerve function following the release, and, on the evidence of the plaintiff himself, this does not seem to have been the case and the plaintiff's evidence on this point is preferable to that of Mr Alexeef.
Mr Thrum gave evidence that damage to the peroneal nerve during the HTO procedure is fairly uncommon but, if it was damaged, then, he would have expected immediate foot drop and sensation loss over the dorsal aspect of the foot and perhaps down the lateral side of the leg. He did not believe that symptoms of damage to the peroneal nerve can arise three to four years after HTO surgery. He likened the situation to breaking a pencil: "if you break it, you break it there and then. You don't break it four years down the track. It doesn't become manifest four years later". He agreed that a burning pain, numbness and tingling can be nerve related, but said that swelling of the lower limb upon the return to work would be absolutely normal although he agreed, that, nerve damage can cause swelling if the nerve damage causes the muscle to fail to work. Generalised weakness in the lower limb could be related to nerve damage and cramping could relate to any number of things. He also said that if there was direct correlation between damage to the peroneal nerve and surgery, then, the artery and vein would suffer damage before the nerve would do so.
Professor Skirving said that damage to the peroneal nerve can occur during HTO surgery but, any signs and symptoms are immediate. This is usually manifested by an inability to lift the foot or extend the toes or to turn the foot upwards and outwards. If there is peroneal nerve damage, then, there is always motor loss, not just sensory loss. If the loss was just sensory, then, he would expect the nerve to recover quickly because such loss would indicate a very incomplete injury or traction injury to the tibial nerve. As with the other medicos, Professor Skirving thought that the placement of the knee in the valgus alignment took the tension off the peroneal nerve. He disagreed with Dr Goodhart that stretching of the peroneal nerve over time could lead to the development of a neuropathy on the basis that such a view is just not based on orthopaedic experience. He also said, that, damage to the peroneal nerve will not cause cramping in the calf and that a neurological problem would not generally be the cause of swelling.
Dr Silbert gave evidence, that, a lumbo sacral plexopathy or a sciatic neuropathy is the only possible explanation for the existence of a peroneal neuropathy and a tibial neuropathy at the level of the knee and that there is no other process which could cause these neuropathies.
I also note that the first time the defendant recalls the plaintiff referring to burning pain was following the operation performed on the plaintiff's left leg. The defendant agreed that the plaintiff "may have mentioned" numbness in his ankle, foot and toes, but this often follows HTO surgery. The hospital notes did not contain any reference to burning pain, numbness or tingling, and if there had been any damage to the peroneal nerve during surgery, then, symptoms should have been expected immediately.
Dr Silbert also gave evidence that the findings made by Dr Crockett on 11 December 2002 when he conducted a clinical and neurological examination of the plaintiff reflected a patchy distribution which involved the tibial nerve but, which was more plexus than tibial and certainly not peroneal.
As to calf cramping, it should be noted that the peroneal nerve does not supply the calf muscle.
Importantly, Mr Alexeef made the point, that, he was not suggesting that the changed appearance of the peroneal nerve was connected to, or caused by, the HTO surgery. Indeed, he said this surgery "didn't have that appearance" of having done any damage to the peroneal nerve. He also said that peroneal nerve entrapment can present as an entity in its own right. In April 2001 when he reviewed the plaintiff, he thought that the plaintiff's numbness in the toes could be due to diabetes.
In the circumstances, I am not persuaded that there was damage to the peroneal nerve during surgery.

Activation/acceleration of degenerative changes in the hip, knee and ankle

The presentation of the plaintiff to the defendant was one of osteoarthritis in the medial and lateral compartments of the right knee. Evidence has not been led by the plaintiff to suggest that this osteoarthritis was advanced by the surgery performed upon him by the defendant. Indeed, Professor Skirving gave evidence that x-rays taken on 16 February 2004 suggest that the osteoarthritic process in the medial joint compartment has been considerably slowed. In fact, the plaintiff's left knee was then worse than the right knee.
The plaintiff has not given any evidence of suffering from hip pain. Following examination on 23 March 1998, the defendant wrote to Dr Green that the plaintiff had a good functional range of hip movement.
As to the ankle, the alteration of the valgus alignment would not, by itself, contribute to degeneration of the ankle joint. The plaintiff's case that the ankle has degenerated is based on the evidence of Dr Crockett that the HTO procedure resulted in the tibia rotating in a medial direction. I have already rejected that proposition. Indeed, the valgus alignment of the plaintiff's right leg following surgery would have resulted in him walking on the medial aspect of his foot rather than the lateral aspect, such that the surgery has not caused his foot to invert. Even if the surgery resulted in excessive valgus over‑correction, such did not activate or accelerate degeneration and/or pain in the ankle.

Injured right foot

In late 1997, the plaintiff noticed that his right foot began to turn inwards after a day at work. He could see a knobbly bone on the side of the foot. He returned to the defendant in March 1998, concerned about his left knee. He was satisfied with the right knee surgery. He was walking better.
The plaintiff said that his right ankle was turning in a bit by September 1998. He did not tell the defendant of this and did not then consult the defendant until October 2000 about his ankle complaint. The defendant did not notice any obvious in-toeing. Surgery for the ankle was not then an option because the plaintiff was due to receive a stent in his heart and subsequently, the plaintiff decided against surgery due to his diabetes, and began wearing a calliper. However, in 2001, he underwent corrective surgery to the right knee with Mr Alexeef which resulted in significant improvement to the right ankle.
The plaintiff relies on Dr Crockett's evidence that there was over‑correction at surgery, together with medial rotation of the tibia to cause rotation of the right foot inwards, to walk on the lateral aspect of his right foot and to roll his ankle and foot into inversion. As I have rejected their evidence underpinning the plaintiff's complaints, they cannot be supported.
I have already commented upon the plaintiff's Charcot ankle joint. This seems to be a far more likely explanation for any ankle problems than the surgery performed by the defendant upon the plaintiff's upper tibia.

Muscle weakness

Any muscle weakness has probably arisen by reason of damage to the tibial nerve. I am not persuaded that the muscle weakness is caused by the surgery.

Fractures of the tibia and instability

The horizontal fracture at the conclusion of the HTO procedure to the medial cortex can be seen as part of the HTO procedure. As to the alleged vertical fracture, I have already found that such has not been proven. These fractures have not been causative of any loss or damage as outlined above.

Conclusion

The sad fact is, that, the plaintiff suffers from a neuropathic ankle joint and it is this neuropathy, together with his pre-existing arthritis which is the cause of his inverted foot and degeneration. He has a Charcot joint. This is amply supported by Mr Alexeef, Mr Thrum and Professor Skirving.
Further, Professor Skirving said that bow‑legged people almost invariably have internal tibial rotation or deformities. Dr Crockett however said that the plaintiff is an exception to this rule and that tibial rotation could well cause neuropraxia of the peroneal nerve.
The problems suffered by the plaintiff are regrettable, but as Professor Skirving stated:
"These are not normal legs. They've developed bilateral osteoarthritis at a young age and a major problem with his ankle at a young age. There's something going wrong with his – something other than the surgical procedure".
Osteoarthritis has now claimed the plaintiff's left shoulder, requiring total reconstruction thereof. His spine is also affected.
The plaintiff's case is summed up in par 4 of his reply in that post‑operatively, the plaintiff's right knee was in 10 degrees of valgus, which was excessive. He says that this, in combination with the unhealed fracture, contributed to the degeneration of his knee and ankle joints and to the function of the nerves in the right lower limb resulting in a further increase in valgus. The plaintiff pleads that all of his injuries result from the untreated fracture, which should have been immobilised.
However, Mr Alexeef said that post-operatively, the plaintiff was in 10 degrees of valgus, but that this was not over-correction. He also said in respect of the knee fractures that "the whole segment" had healed within 10 weeks. I have found that there was no vertical fracture and the horizontal fracture was fixed within the plate and screws. Mr Alexeef switched from thinking that the vertical fracture might cause a subsequent change in valgus, to the horizontal fracture as being the likely cause. This shift was not explained.
I am not persuaded that any increase in valgus after surgery was caused by the surgery. The 10 degree valgus was appropriate and the fractures had healed. Something else outside the defendant's surgery was responsible. This something took time to develop. The plaintiff had his operation with the defendant in August 1997. He was reviewed in March, June, September and October 1998. He did not then see the defendant until October 2000 when surgery for his ankle was not an option due to the need for a stent. The plaintiff saw Mr Alexeef in 2001 and then proceeded to corrective surgery. Mr Alexeef said that the plaintiff's problems had really arisen over the past year.
Post-operative negligence by the defendant has only been particularised only by failure to immobilise the knee fractures and to take Maquet views. It may be, that, there has been some negligence at post‑surgical reviews. However, that has not been pleaded.
In the circumstances, I therefore dismiss the plaintiff's claim. However, should I be wrong, will assess his damages.

Damages

The plaintiff was aged nearly 51 years when he underwent surgery with the defendant in 1997. At that time, he was a boilermaker/welder working at Newman, hoping to work until he turned 60 years of age and thereafter, he planned to take lighter work.
In 1998, the plaintiff was offered redundancy at his employment. He took it and in October 1998, he purchased the Kondinin Road House Motel with his wife. They were partners.
The Kondinin Road House was purchased for $140,000 and was sold in May 2001 for $100,000 with stock of $26,000. It was sold because the plaintiff was unable to continue with the work due to his deteriorating condition.
On the basis that the defendant was negligent and caused the plaintiff's right lower limb degeneration, I would assess his general damages at $85,000. He is now limited to walking with a calliper and cannot work. He is unable to perform most family duties, but, he has other health problems including high blood pressure, asthma, oesophageal reflux, type 2 diabetes, angina, osteoarthritis of the left shoulder requiring total joint replacement, osteoarthritic changes in the spine, high blood pressure and cholesterol problems. On the evidence of Mr Alexeef, the plaintiff would have come to a total knee reconstruction within a few years of 1997 in any event had he not undergone the right HTO.
Past medical expenses have been agreed at $28,876.95.
Future medical expenses relate to the cost of a pair of callipers and shoes, such capital cost being $1,000 and being required to be replaced every 18 months to two years.
The plaintiff's life expectancy is 21.8 years. I will allow $5,567 being calculated as follows:
2 years- $1,000 x 0.890     $890
4 years- $1,000 x 0.792     $792
6 years- $1,000 x 0.705     $705
8 years- $1,000 x 0.627     $627
10 years - $1,000 x 0.558     $558
12 years - $1,000 x 0.497     $497
14 years - $1,000 x 0.442     $442
16 years - $1,000 x 0.394     $394
18 years - $1,000 x 0.350     $350
20 years - $1,000 x 0.312     $312
Total $5,567
In my view, had the plaintiff had a successful HTO operation, he would still have taken the redundancy offered to him by his employer at Newman in 1998 because of his ongoing left and right knee concerns. His past loss of earnings are what he might reasonably have hoped to earn at the Kondinin Road House for eight years to age 60, given that the plaintiff would have required a knee replacement by at least 60 years of age. It does not seem feasible to suggest that he would have worked thereafter. His knee and other health issues would also have interfered with his ability to work. Mr Alexeef said that if the plaintiff had not had the HTO process, then, he would necessarily have had to stop work and undergo the total knee replacement within a couple of years from 1997. He is now 60 and therefore there is only past economic loss to be calculated.
It is difficult to know what income the plaintiff would have earned from the Kondinin Road House. In the 2001 tax year, the plaintiff earned $21,889 gross to May 2001. If I annualise this, then, his gross earnings would have been $23,878.90 gross, or $19,977.35 net. Allowing for five and a half years, this is the sum of $109,875.42, to which can be added $18,129.44 interest calculated at 6 per cent per annum. I make no allowance for superannuation given that the plaintiff was self employed.
I make no allowance for future economic loss for the reasons stated above. The plaintiff had a number of serious medical conditions quite unrelated to his need for surgery and it is more probable than not that he would have stopped working by 60 years of age in any event.
The plaintiff claimed gratuitous services. I am prepared to allow him "a couple of hours" help per week he requested, but I will limit this to 10 years and therefore allow $12,000 calculated as follows: 2 hours per week x $15 per hour x 395.5 (multiplier for 10 years) = $11,865 which I have rounded up. The plaintiff is likely to have required services around his home in any event as his general health deteriorated and that is why I have limited this claim to 10 years. Accordingly, I am prepared to allow the following:
General damages  $85,000.00
Past medical expenses              $28,876.95
Future medical expenses            $5,255.00
Past economic loss                 $109,875.42
Interest of past economic loss    $18,129.44
Gratuitous Services $12,000.00
Total $259,136.81
I make no allowance for the loss on the sale of the business because there is no evidence to suggest that the plaintiff's condition, as alleged to have been caused by the defendant, caused the loss, if any, on resale as to which, I have not been told if the purchase price included stock. There may be any number of reasons for a loss to have occurred on resale.