Roberts v Hardcastle - [2002] WADC 149

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: ROBERTS -v- HARDCASTLE [2002] WADC 149

CORAM: BLAXELL DCJ

HEARD: 26-30 NOVEMBER 2001, 15 FEBRUARY 2002

DELIVERED : 19 JULY 2002

FILE NO/S: CIV 2909 of 1996

BETWEEN: GLORIA JEAN ROBERTS
Plaintiff
AND
PHILIP HOBSON HARDCASTLE
Defendant

Catchwords:

Negligence - Professional negligence - Whether defendant orthopaedic surgeon negligent in advising double fusion of plaintiff's lower back - Turns on own facts

Legislation:

Nil

Result:

Defendant liable to plaintiff
General damages assessed at $80,000

Representation:

Counsel:

Plaintiff: Mr T Lampropoulos
Defendant: Mr J R B Ley

Solicitors:

Plaintiff: Slater & Gordon
Defendant: Mullins Handcock

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

Rogers v Whitaker (1992) 175 CLR 479

Case(s) also cited:

Bolam v Friern Hospital Management Committee (1957) 1 WLR 582
Chapel v Hart (1998) 175 CLR 479
Chatterton v Gerson [1981] QB 432
Ellis v Wallsend District Hospital (1989) 17 NSWLR 553
Maynard v West Midlands Regional Health Authority [1984] 1 WLR 634
Naxakis v Western General Hospital (1999) 197 CLR 269
Perera v Ng, NSW DCt; No 5897 of 1997; 14 May 1998
Rosenberg v Percival (2001) 178 ALR 577
Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital [1985] AC 871

BLAXELL DCJ: The defendant is an orthopaedic surgeon, and at all material times he was the treating specialist in respect of painful conditions in the plaintiff's cervical and lumbar spines. Between 1989 and 1991 the defendant performed a series of five operations on the plaintiff as follows:
1.On 11 January 1989 at St John of God Hospital, anterior fusion of the C4/5 and C5/6 levels of the cervical spine ("the first surgery").
2.On 23 June 1989 at the Mount Hospital, posterior fusion of the C4/5 and C5/6 levels of the cervical spine together with decompression of the C5 and C6 nerve roots ("the second surgery").
3.On 3 September 1990 at the St John of God Hospital, fusion with a Hartshill Rectangle of the L4/5 and L5/S1 levels of the lumbar spine ("the third surgery").
4.On 14 March 1991 at the Mount Hospital, repair of a pseudo‑arthrosis at L4/5, and posterior fusion with plates at each of the L3-L5 levels of the lumbar spine ("the fourth surgery").
5.On 24 May 1991 at Bethesda Hospital, the tightening and/or removal of screws inserted during the third and fourth surgeries ("the fifth surgery").
The plaintiff has no complaint in respect of the first and second surgeries. It is also common ground that the need for the fourth and fifth surgeries arose as a result of adverse consequences of the third surgery. However, the plaintiff claims that the defendant was negligent in advising her to undergo the third surgery, and also alleges that he failed to advise her as to the material risks and possible adverse outcomes.

The issues on the pleadings

The third surgery involved the implanting of a Hartshill rectangle at the L4/5 and L5/S1 levels of the plaintiff's spine. The Hartshill rectangle was a metal device (as depicted in Exhibit 12B) which was attached to the plaintiff's spine with screws and wires so as to assist fusion of the vertebrae at those levels. The fusions were accomplished with bone grafts.
Paragraph 10 of the statement of claim alleges that the plaintiff was unaware that the Hartshill rectangle was to be inserted into her spine, and that prior to the third surgery she believed that there would simply be bone fusions as had occurred during the first and second surgeries. The plaintiff claims that she would not have consented to the third surgery if she had been advised that a Hartshill rectangle was to be implanted. However, the defendant denies these allegations.
Paragraphs 12 and 37 of the statement of claim plead that the defendant breached a duty of care to inform the plaintiff of the most appropriate form of treatment or surgical procedure for her symptoms. In response, paragraph 11 of the defence asserts that the third surgery was appropriate based upon the plaintiff's symptoms and results of radiological investigations.
Paragraph 11 of the statement of claim pleads that the defendant "did not explain the risks and possible complications associated with (the third surgery), or of alternative surgical procedures or other treatment so that the plaintiff could make an informed decision about whether or not to undergo the proposed surgical procedures or some alternative surgical procedure or any procedure at all".
In response to this plea, paragraph 10 of the defence asserted at the commencement of the trial that the defendant had advised the plaintiff of appropriate risks prior to the first and second surgeries. Paragraph 10 went on to plead that the risks and complications associated with the third surgery were the same as those associated with the previous surgical procedures, and that accordingly "there was no need for the risks to be again repeated".
However, during the course of the trial, the defendant obtained leave for a very significant amendment to his defence. Following that amendment paragraph 10 of the defence asserted that the defendant had told the plaintiff prior to the third surgery that (inter alia):
"(b)The surgery should reduce her low back pain but there was a chance that it would not and a small chance that it might make her low back pain worse.
…
(g)There was a risk that the fusion would not 'take' and that further surgery would be necessary to refuse the segment which had not fused."
At the commencement of the trial, the statement of claim pleaded alternative causes of action for negligence, for breach of an implied contractual term that the defendant would advise the plaintiff as to appropriate treatment, for assault (based on the claim that the Hartshill rectangle was implanted without consent), and for breach of an implied warranty that the third surgery would bring about a significant reduction in pain. However, during the plaintiff's counsel's opening address the claims for assault and breach of warranty were abandoned. Accordingly, I need to determine the issues in the context of claims for negligence and breach of an implied term.
The statement of claim further pleads that each of the third, fourth and fifth surgeries failed to relieve the plaintiff's symptoms, and that her condition subsequently worsened. It is claimed that these consequences resulted from the negligence and breach of duty of the defendant, and furthermore that:
"… The defendant's intervention has materially contributed to the plaintiff's ongoing disability, the plaintiff has lost the opportunity for improvement or more effective treatment of her condition, and has required and will continue to require medical treatment and pain relief on a permanent basis … ". (Par 47 of the statement of claim)

The relevant legal principles

It is trite law that the defendant was under a duty to exercise reasonable care and skill when advising and treating the plaintiff. The standard of care that he was required to exercise was that of any ordinary orthopaedic specialist. In the leading authority of Rogers v Whitaker (1992) 175 CLR 479, the High Court has held (at 489) that:
There is a fundamental difference between, on the one hand, diagnosis and treatment and, on the other hand, the provision of advice or information to a patient. In diagnosis and treatment, the patient's contribution is limited to the narration of symptoms and relevant history; the medical practitioner provides diagnosis and treatment according to his or her level of skill. However, except in cases of emergency or necessity, all medical treatment is preceded by the patient's choice to undergo it. In legal terms, the patient's consent to the treatment may be valid once he or she is informed in broad terms of the nature of the procedure which is intended. But the choice is, in reality, meaningless unless it is made on the basis of relevant information and advice."
In the present instance it is not alleged that the defendant was negligent in his diagnosis of the plaintiff's condition or in his manner of carrying out the third surgery. Nor is it alleged that the defendant failed to warn the plaintiff of the possibility of some unusual complication arising from the surgery (as was the situation in Rogers v Whitaker). In this regard, the expert evidence in the present case suggests that the adverse outcomes experienced by the plaintiff following the third surgery were not unusual for that type of operation.
The plaintiff's essential complaints are that she should not have been advised to undergo the third surgery, that she was not properly advised of the nature of the proposed surgery, and that she was not warned of the possible adverse outcomes. Consequently, the defendant did not provide her with the opportunity of making an "informed choice" whether or not to undergo the surgery.
If the plaintiff's assertions as to the lack of any warning are correct, the law to be applied is quite clear. In Rogers v Whitaker (at 486) the High Court was implicitly of the view that "the duty to warn arises from the patient's right to know of material risks, a right which in turn arises from the patient's right to decide for … herself whether or not to submit to the medical treatment proposed". The Court also held (at 488 and 490) that:
"… the amount of information or advice which a careful and responsible doctor would disclose depended upon a complex of factors: the nature of the matter to be disclosed; the nature of the treatment; the desire of the patient for information; the temperament and health of the patient; and the general surrounding circumstances.
…
The law should recognise that a doctor has a duty to warn a patient of a material risk inherent in the proposed treatment; a risk is material if, in the circumstances of the particular case, a reasonable person in the patient's position, if warned of the risk, would be likely to attach significance to it 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."
As already noted, the evidence in the present case clearly establishes that there were material risks inherent in the proposed treatment including the risk of there being a need for further operations, and the possibility of the lower back symptoms deteriorating as a result of surgical intervention. There can be little doubt that the proper exercise of the defendant's duty of care required him to explain these risks to the plaintiff. Accordingly, the real issues to be determined are:
1.Whether the defendant was negligent in advising the plaintiff to undergo the third surgery.
2.Further, and in any event, whether the defendant failed to warn the plaintiff as to the possibility of the adverse outcomes which ultimately occurred.
3.In the event of affirmative answers to either or both of the above, whether such breach of the defendant's duty of care has caused the loss claimed.

The evidence as to relevant events

The plaintiff was born on 9 November 1946 and at all material times has lived at Kalgoorlie with her husband and two children. During 1988 she developed symptoms of neck and back pain and was referred by her general practitioner to the defendant.
When the plaintiff attended for her first consultation with the defendant on 9 August 1988, she provided a history of her symptoms to his nurse (who happened to be his wife). Mrs Hardcastle noted that the presenting problems were neck pain, shoulder‑arm pain, lower back pain and headaches. These symptoms had commenced 18 months previously after the plaintiff had slipped on her back veranda and fallen on her buttocks. The symptoms were preventing the plaintiff from carrying out most of her normal household activities (see Exhibit 1). However, the plaintiff denies that she informed Mrs Hardcastle of some of the matters noted. (It is unnecessary for present purposes that I go into the details of what is in issue in this respect.)
The plaintiff was then examined by the defendant and he recorded further notes on the history of her symptoms. He noted that the plaintiff was experiencing neck, shoulder and arm pain "all the time" and back pain "most of the time". He was also told that the plaintiff "can't stand the pain any more" (Exhibit 1).
The defendant then arranged for the plaintiff to undergo a myelogram, a CT scan and a facet block at C5/6. He reviewed the results of these investigations during further consultations with the plaintiff on 19 September and 8 November 1988, and advised that she required an anterior cervical fusion.
The plaintiff accepted this advice and was admitted to St John of God Hospital Subiaco on 10 January 1989 where a two level anterior cervical fusion was performed the following day. The fusions were effected with bone grafts taken from the plaintiff's hip. According to the defendant's notes prior to performing the surgery the "risks (were) explained". However, the plaintiff does not recall any discussion about risks. She simply recalls the defendant saying that "I'd be better, much better" (T 28).
The plaintiff's evidence‑in‑chief was that her neck pain was "terrible" following the first surgery. However, she conceded during cross‑examination that the first surgery resulted in relief from right‑sided symptoms, and that the remaining left‑sided pain was "better" (T 54). It is also clear from the plaintiff's cross‑examination that she was unable to remember all relevant details of her condition at material times.
Because of the continuing left‑sided neck pain the defendant came to the view that the first surgery had not been fully successful. In May 1989 he advised the plaintiff that she would need another operation involving a posterior fusion with metal plates. The plaintiff denies that she was informed that this second surgery would involve the insertion of metal plates. She also denies the defendant's evidence that she was warned as to any risks of the second surgery (T 56).
The second surgery was performed at the Mount Hospital on 23 June 1989, and during subsequent consultations the plaintiff's progress was monitored by the defendant. According to notes made by Mrs Hardcastle on 12 September 1989, the plaintiff at that time was continuing to experience symptoms in the neck and left arm. Her level of activity was the "same as pre‑op" and the residual pain in the neck (on a scale of 1 – 10) was "8" (Exhibit 3). However, by 12 January 1990 the defendant was able to report that the plaintiff's cervical symptoms had "largely resolved though she still has some pain" (Exhibit 18, p 61).
During late 1989 the plaintiff also developed increasing problems with her lower back. She described the symptoms to the defendant as "low back pain radiating down both legs to the ankles of a fairly constant nature associated with morning stiffness". The defendant was tentatively of the view that there was "an L4/5 or an L3/4 degenerative problem" (Exhibit 18, p 61). He accordingly arranged for x‑rays, a CT scan and a facet block injection of the lumbar spine in an attempt to arrive at a more precise diagnosis. Unfortunately the results of these investigations were inconclusive.
During early 1990 the plaintiff experienced an exacerbation of her neck symptoms, and on 22 March 1990 the defendant performed a manipulation of the cervical spine under general anaesthetic. Subsequently the plaintiff continued to experience "a lot of neck pain at the level directly below the fusion" (Exhibit 18, p 55).
The plaintiff was also experiencing increasing lumbar symptoms, and from about March 1990 she received regular Pethedine injections for her neck and back pain. The defendant arranged a further CT scan of the lower back on 28 May 1990 but the radiologist who conducted that scan reported that "no facet joint pathology or other significant abnormality (was) shown". However, the defendant examined the scans for himself and concluded that there were in fact minor degenerative changes at L3/4 and L4/5.
The defendant then arranged for a further facet block injection which was performed on 31 May 1990. This did not produce any significant results other than an indication (as assessed by the defendant) that the L4/5 level "was possibly the cause of the low back symptoms" (T 282).
By this time the defendant was gradually coming to the view that he might have to advise lumbar fusion in order to relieve the plaintiff's low back symptoms. With this in mind he requested a discogram, and the plaintiff was admitted to St John of God Hospital for this procedure on 5 August 1990. The radiologist's report on the discogram indicated that there were no significant results from injections into the discs at L4/5 or L3/4. However, "low back pain … which the patient stated was similar to the back pain moiety of her symptoms was induced at the L5/S1 disc injection" (Exhibit 18, p 50 – emphasis added). The defendant considered that these results were "not fully conclusive" because:
"We had some evidence that there may have been pain coming from L4‑5, there was some evidence that L5‑S1 was involved. My conclusion was that it could be either or both and I was keen to pursue at that stage a more conservative line of approach." (T 286)
On 22 August 1990 the plaintiff was readmitted to St John of God Hospital in severe pain. The admitting nurse recorded that the plaintiff had "lower sharp strong back pain and became weak in both legs. Pain radiated to both ankles" (Exhibit 16, p 25). The plaintiff was also stating that the severity of the pain (on a scale of 1 to 10) was "10", or in other words "pain as bad as it can be" (Exhibit 16, p 27).
On 23 August 1990 the plaintiff underwent yet another CT scan of the lumbar spine. The only significant finding by the radiologist was a bulging annulus at L3/4 on the left just below the emerging left L3 nerve root. The defendant viewed the scans and did not agree with the radiologist's interpretation. In his opinion, although there was "slight bulging" at L3/4, of greater significance was "some asymmetry" in the facet joints at L4/5 which indicated "possible instability or abnormal axial movement of the spine which fitted more her clinical presentation of inflammatory pain" (T 289).
The defendant prescribed inflammatory medications during the plaintiff's stay in hospital and treated the symptoms conservatively. In this regard a nursing note on 27 August 1990 recorded:
"Seen by Mr Hardcastle. Encouraged patient to persevere with present treatment, ie, relief without surgery is still possible in the next week." (Exhibit 16, p 12)
Unfortunately there was no improvement in the plaintiff's condition and the hospital records paint a picture of a patient in very severe pain. Ultimately the defendant performed the third surgery on 3 September 1990.
The defendant cannot recall his discussions with the plaintiff prior to the third surgery, but has testified as to his usual practice at the time. He believes that his decision to offer surgery would have been "something that had been happening gradually prior to the discogram". Following the plaintiff's final admission to St John of God Hospital the defendant believes that he would have advised the plaintiff along the lines of:
"Let's give this a little bit longer. If we're not seeing any improvement after a period then we've got to seriously think about surgery but it's going to be your decision." (T 292)
When the decision was ultimately made to proceed with surgery, the defendant's evidence as to the discussion he believes he had with the plaintiff is as follows:
"I would have explained what we would be doing is similar to what she had done to her neck in principle. That's a fusion. We would be using bone graft, hopefully just the local bone graft without having to take a bone graft from some other area, - - -
Again, when you say 'local bone graft,' where are you saying you would be taking the bone from?---From the area of the operation, the spinous process and some of the lamina, and using that as opposed to going to the hip, which we had to do for the cervical spine, and that we would be wiring in a rod to hold things together to stop the movement to allow the bone graft – or a better opportunity of fusing. Then I would explain that, you know, it has a reasonable chance of helping her but that there's no guarantees and that there's a small chance that she may be worse. That's just the general complications of surgery.
Would you have told her anything about the prospect of her pain remaining the same?---Yes.
What would you have told her about that?---I would have said, 'There's a reasonably good chance that this will help you.' I can't recall whether I used percentages but if I did in that time I used somewhere between 70 or 80 per cent chance of reasonable relief, and a 20 to 30 per cent chance of being basically the same or a very small chance of being slightly worse.
…
Would you have told her the name of the implant that you intended to use?---It was my practice to use the word 'Hartshill,' apart from the fact that it's a place where I trained, but again I can't specifically – I mean, it's possible I said 'rod with wires' but generally I would have said, 'A Hartshill rectangle which is a rod with wires at each level.'
Would you have mentioned the levels of the spine that you intended to fuse?---Yes.
In what way?--- I would have said, 'The bottom two.' " (T 292‑4)

The plaintiff denies that she was provided with any such explanations or warnings. She asserts that she was not told that a Hartshill rectangle would be inserted into her back and was not warned of any risks. In this regard, the plaintiff's evidence during cross‑examination was as follows:
"He told you that he would perform a fusion to the two lowest levels of your back?---He said he'd give me an operation that would make me feel better, so I don't know what they're called.
He said that he would fuse the two lowest levels of your back?---Yes.
He said that would reduce the movement of those parts of your spine?---What does that mean?
That your spine at the bottom wouldn't move as much?---No.
…
You can't remember him saying that?---No.
He will say that he told you that he would do it by using a surgical implant called a Hartshill rectangle?---No, I can't remember all this.
He will say that he told you that the operation should relieve your back pain?---Yes.
You remember that?---Yes.
But he said it may not; there was a chance it may not?---Mr Hardcastle told me I'd feel better when I woke up.
Yes, but he also told you there was a chance that you may not?---No.
…
He said he also told you there was a small chance that the operation could make your pain worse?---No, definitely not.
…
But you knew there was a chance, did you not, that the operation might not relieve your pain?---No, I really thought it would relieve my pain, otherwise I wouldn't have had it.
It hadn't relieved the pain in your neck when you had the previous two operations, had it?---No, but I really thought it would.
Why would it be any different from the neck operation?---Well, Mr Hardcastle told me and I put my faith in Mr Hardcastle and he told me I'd wake up feeling much better.
…
He told you there were no guarantees, as he had with the neck operation, and you knew there weren't any guarantees?---Definitely not or I wouldn't have gone through and had it done.
So you would only have it done if you had 100 per cent cast iron guarantee that it would work?---Well, the doctor – I honestly thought the doctor would fix me." (T 67 ‑ 69)
It is also the defendant's evidence that although he had the plaintiff's prior consent, he did not make a definite decision to proceed with the fusion of L5/S1 and L4/5 until after the operation had commenced. This was because he wanted to test the lumbar vertebrae for instability while the plaintiff was under general anaesthetic. The defendant's evidence as to the procedure he adopted in this regard is as follows:
"When you operated what did you find upon operating?---Well, as I was mentioning this morning when operating through the back of the spine the muscles are taken apart and I move the spinous processes around to determine how much mobility that I can achieve, the levels that are exposed and I – from my interoperative assessment that the bottom level, the L5-S1, had what I considered to be normal movement. That there was abnormal movement at L4-5 and there was perhaps a little bit more movement than I would have expected or what I would consider at L3-4.
Did that enable you to make any diagnosis of the cause of the plaintiff's pain?---I've made an interoperative diagnosis of an unstable L4-5 and with instability you can have inflammatory pain and I've always – I was always suspicious about the L4-5 level so I've made a diagnosis which I was reasonably confident about. You can't be with 100 per cent certainty that she had an unstable L4-5 facet inflammatory problem.
Why, on the basis on that diagnosis, did you fuse L4-5 and L5‑S1?---… it's well recognised that a floating fusion – by floating fusion I mean an isolated fusion in the lumbar spine above L5‑S1 performed posteriorly particularly at L4-5 is associated with poor results and the majority of medical opinion at that time was to always include with the posterior fusion, to include L5‑S1, plus I had evidence on the discogram of some pain from there." (T 295)
Accordingly, the defendant's decision to proceed with a double fusion was based upon his observation of abnormal movement at L4/5. Although there was normal movement at L5/S1 there had been a positive discogram result at that level, and it would have been inappropriate to have a "floating" fusion at L4/5 without including fusion at L5/S1.
The plaintiff was discharged from St John of God Hospital on 21 September and was examined by the defendant again on 30 November 1990. The defendant noted during that consultation that the plaintiff: "Feels great. No pain. Wound looks fine. X‑ray satisfactory. Wires okay". It is the defendant's evidence that the plaintiff was "pretty happy with her progress at that stage" (T 298). However, the plaintiff's evidence is that although she cannot remember the details:
"… I know I had a lot of Pethedine and I was in bed a lot and Silver Chain did look after me more than once in Kalgoorlie." (T 75)
During January 1991 the plaintiff experienced a severe exacerbation of her back pain and was referred by her general practitioner to the defendant once again. The defendant arranged for a further CT scan and x‑rays, but the results of these were inconclusive as to what might have been the cause of the plaintiff's renewed pain. The defendant then offered the plaintiff:
"… A further surgical procedure to check the previous fusion to make sure that that's solid, and also check the level above at L3/4 which was a little mobile at the time of my original operation, to make sure there hadn't been any increased movement there." (T 301)
Although the defendant is unable to recall the precise discussions, it is his evidence that at the time of advising the fourth surgery he would have told the plaintiff that:
"… There's a good chance of improving her symptoms, but there's no guarantee and there's certainly, you know a reasonable possibility that she may well be exactly the same … It might be the same, or there's always a slight chance of being worse." (T 302)
The plaintiff denies that she was provided with any such advice or warnings. It is her evidence that the defendant "told me that when he fixed it this time I would feel much better. I would be a different person". He did not explain what he was going to do on this occasion and she "just left it up to Mr Hardcastle" (T 34).
At the time of performing the fourth surgery at the Mount Hospital on 14 March 1991 the defendant found that there was a pseudo‑arthrosis at L4/5 because the previous fusion at that level had failed. The defendant also found what he considered to be "hypermobility" at L3/4. Accordingly the defendant grafted more bone (from the right iliac crest) at L4/5 and performed a further bone graft at L3/4. Furthermore, in order to "supplement the fixation" he fixed Roy‑Camille spinal plates and screws at all levels between L3 and L5. It was unnecessary to extend the plates down as far as L5/S1 because that level had been successfully fused.
The fourth surgery did not relieve the plaintiff's lower back symptoms and during the following two months she required three admissions to the Kalgoorlie Regional Hospital in respect of severe exacerbations of pain. Treatment during these admissions included Pethedine injections.
On 24 May 1991 the defendant examined the plaintiff again and noted a very tender area over the L5/S1 level which he suspected was due to irritation from a wire. He accordingly recommended an exploration of the area to see whether there had been some loosening of the implant.
On 24 May 1991 the plaintiff was admitted to Bethesda Hospital for the fifth surgery. During this operation the defendant found that some of the screws had loosened slightly, and he reinserted the top one and removed one of the lower ones. There also appeared to be some movement at L3/4 so the defendant "took down the fusion around the facet joint and packed it again with bone". The wires on the plaintiff's Hartshill rectangle were perfectly stable (Exhibit 18, p 22). As to the reasons why there had been a loosening of the screws, the defendant's evidence is that:
"The plates and the wires all are acting as a scaffold and they're wired in or screwed into the bone and they hold, and as a person gets up, forces are applied to that scaffolding and they can loosen – or the screw can back out sometimes reasonably quickly. It's the reason why bigger and bigger screws have been developed in the spine since this particular time, and more solid implants to prevent this problem, which was very common back in those days, but it's the forces that are applying, and also if the bone's a little soft, your Honour, the wire, which is put fairly tight, can actually cut into the bone. If it cuts in a little bit to the bone, it will loosen." (T 306 – emphasis added)
The plaintiff was discharged from Bethesda Hospital on 31 May 1991 and returned to Kalgoorlie. She initially showed some improvement in her back condition and on 16 August 1991 the defendant reported that "she is the best she has been in years and she does have one area of tenderness over the lower part of her wound which can at times be bad" (Exhibit 18, p 21).
Unfortunately, in about November 1991, a severe exacerbation of back pain returned which necessitated Pethedine injections. The plaintiff's general practitioner also arranged for some traction at Kalgoorlie Regional Hospital but this was not persisted with because of the pain that the plaintiff was experiencing. Following a further consultation on 6 December 1991 the defendant reported that:
"This appears to be a situation of feeling tremendous with quite sudden breakdowns with severe agonising pain without any significant underlying pathology which I think must raise a few questions." (Exhibit 18, p 19)
In June 1992 the plaintiff underwent another lumbar discography and CT scanning. These investigations revealed that "at L2/3 there is extensive fissuring of the disc which extends to the outer annulus. The patient volunteered that her back pain and referred pain to the right leg was induced by injection at this level" (Exhibit 18, p 13).
On the basis of this result and the result of the post‑discogram CT scan, the defendant concluded that there was "significant degeneration at L2/3 … (and) some unusual changes in the facet joint at this level". He proposed that there should be further surgery to remove the spinal implants and to check the L2/3 level (with a view to the plaintiff undergoing discectomy at this level) (Exhibit 18, pp 10 & 11).
Following this recommendation the plaintiff's general practitioner referred her to another orthopaedic surgeon, Mr John Croser, for a second opinion. Mr Croser noted that the plaintiff had "undergone a considerable amount of surgery and is not coping terribly well with the prospect of a further operation". He recommended that she undergo counselling and management at a pain clinic so that she could come to terms with her residual disability "and the need for further surgery can be obviated" (Exhibit 18, p 8).
Subsequently the plaintiff was treated by the pain specialist, Dr P Finch, who recommended the implanting of a Morphine infusion pump. The plaintiff accepted this recommendation and consequently now receives relief from her symptoms by means of the Morphine pump. The Hartshill rectangle and other metal fixtures remain in place, and the plaintiff has not undergone any further surgery.

The evidence of the expert witnesses

Apart from the defendant, there were two other orthopaedic specialists called as witnesses. Mr Peter L Fry, an orthopaedic surgeon from Adelaide of 35 years standing, has testified on behalf of the plaintiff. Mr Stephen J Ruff, an orthopaedic surgeon who has practised in Sydney since 1983, was called on behalf of the defendant. The critical issues in respect of which these witnesses have provided their expert opinions are as follows:
1.Whether it was appropriate for the defendant to offer the plaintiff surgery in the form of a double fusion of L4/5 and L5/S1.
2.What warnings as to relevant adverse outcomes should have been given by the defendant to the plaintiff at the time of advising such surgery.
When providing their opinions on these issues, both doctors were asked to do so in the context of the relevant state of knowledge within their profession during 1990.
As to the first issue, each of the experts is of the view that he himself would not have advised the plaintiff to undergo the double fusion as performed by the defendant. Mr Fry, in particular, has expressed the very strong opinion that the third surgery as performed on the plaintiff was most ill‑advised. However, both experts also recognise that in 1990 a minority of their colleagues would have held the contrary view and would have been willing to follow the course taken by the defendant.
Mr Fry's view that the third surgery was inappropriate is based upon his opinion that the prior investigations by the defendant did not establish the source of the plaintiff's pain. In this regard the CT scan on 23 August 1990 did not establish whether the bulging of the disc at L4/5 was physiological or pathological. (According to Mr Fry some physiological bulging can be quite normal.) Furthermore, the discogram (on 5 August 1990), which was "the definitive test" and thus a far more reliable investigative tool, established beyond doubt that the L4/5 disc was normal. Mr Fry also disputes that the defendant was able to test the plaintiff's spinous processes for abnormal movement while she was on the operating table. His evidence is to the effect that in 1990 there were very few orthopaedic surgeons who considered this to be a valid procedure, and that it has since been recognised to be a "complete furphy" (T 201). Accordingly, Mr Fry is very firmly of the view that there was no justification for fusing the L4/5 level of the plaintiff's spine.
With regard to the L5/S1 level, Mr Fry considers that the results of the discogram on 5 August 1990 were a "dubious positive" which provided only a tenuous justification for fusing that level of the spine. It is unnecessary that I outline Mr Fry's evidence as to the significance of the discogram results (see T 161 – 163). In essence, it is his contention that the very serious step of fusing that level of the spine would only have been justified by a much clearer result than the "similar" pain reported by the plaintiff at the time of the discogram. In Mr Fry's opinion:
"… the indications for surgery were very tenuous. As I said before, what you are proposing by operating is a mechanical solution to what is – what you are essentially stating by doing that – a mechanical problem. Before you operate you must therefore establish with certitude your mechanical problem; its nature, its extent, whether there are complicating features." (T 161)
Mr Fry is also critical of the decision to fuse both the L5/S1 and L4/5 levels of the plaintiff's spine at the one time. In this regard he has expressed his views as follows:
"You see, once you fuse a segment – essentially the bottom of her spine has been fused to the pelvis. L5‑S1 has been fused to the sacrum. The pelvis and it are now a rigid rod. Where once the majority of her spinal movement occurred in bending and straightening up, it does no longer exist. L4‑5 has been fused as well after a struggle and now the primary range of spinal movement is occurring at L3‑4 and if there is any abnormality at L3‑4, degeneration, you can guarantee that it's going to cause trouble in short order, because it is not a level that is designed to take a lot of movement – the part of the movement of the spine certainly, but not the major part, and the further you go up the spine in this sequential fashion, the more chance you have of causing more trouble at the level above and like a dog chasing its tail, you continue your fusion until eventually the person walks around like a guardsman on parade." (T 167)
During cross‑examination, Mr Fry acknowledged that if the defendant had been "backed into a corner" because the plaintiff was suffering "insupportable pain" then surgery short of a double fusion might have been considered:
"If you were to do something, then you operate – as I said, the first principle is you operate on the thing that's wrong. What was the only thing that was demonstrated to be wrong at that stage and seemed to be the likely cause of her problem? It was the disc at L5‑S1. He could have, for example, done an anterior fusion at L5‑S1, removed the offending disc and he would have not caused – he would not have opened the can of worms that were in fact opened. He would have lost nothing by it. The patient may have gained by it and had a minimal operation." (T 191)
Mr Ruff's opinions on these matters are consistent with those of Mr Fry, but have not been expressed in such strident terms. According to Mr Ruff, the grounds for offering the third surgery to the plaintiff were "marginal" because of the "paucity of pathology demonstrated on the collection of radiological material that was present (on 3 September 1990)" (T 217). The discogram in particular was not "grade 1 scientific evidence" (T 219).
Mr Ruff's evidence is to the effect that the "success rate" of surgery of the type performed on the plaintiff on 3 September 1990 did not justify putting her through what she had to go through (T 218, 228). However, the position may have been different if the plaintiff had been suicidal because of her pain. Mr Ruff's evidence in this regard is as follows:
"In your opinion was it reasonable for Mr Hardcastle to offer the plaintiff two‑level spinal surgery? In her circumstances?---If she understood the uncertainty of outcome against the background and the nature of her symptoms, I can't – well, I wouldn't do it myself – but I guess my philosophy is if in the ensuing days or weeks she took her life for the symptoms were too bad, I in some way feel better that I hadn't offered her anything and with that pain some people seem to just reach that compelling nature." (T 220)
It is also Mr Ruff's evidence that if he had been in the defendant's situation and felt compelled to operate, he would have placed the plaintiff in a plaster jacket for four to six weeks before performing a double fusion. If immobilising the plaintiff's spine in this way successfully relieved her symptoms, then this might have provided some justification for carrying on with the double fusion (T 230 ‑ 1).
With regard to the second critical issue, the defendant's evidence is that prior to the third surgery he warned the plaintiff to the effect that there was a 70 or 80 per cent chance of reasonable relief, a 20 to 30 per cent chance that her condition would remain the same, and a very small chance of it being slightly worse (T 293).
The opinion as to the plaintiff's prospects, that was implicit in this warning is not supported by either of Messrs Fry or Ruff. According to Mr Fry:
"Even in a very successful, well‑done, carefully planned fusion backed up by every known investigation being positive at that spot, there is still a failure rate and the failure rate, that is, a failure to improve rate, which is quite high. In general terms, round terms, it can be said that about one‑third of the people treated in that fashion will get a very good result, be happy with it, lose nearly all their symptoms, and that's the end of that. One‑third will be improved from what they were when they entered into the operating room. How much they will be improved, can't say, but they will be improved somewhere along the line. Less back pain perhaps, less leg pain perhaps, but just an improvement. The last one‑third are the same or perhaps worse." (T 159)
According to Mr Ruff, if he had been in the defendant's situation advising double fusion surgery in 1990, he would have warned the plaintiff that she had prospects of a 50 per cent chance of improvement and a 50 per cent chance that her symptoms would remain the same or be worse (T 221, 231).

Findings as to liability

The issue whether the defendant was negligent in advising the plaintiff to undergo the third surgery turns upon the expert evidence, and in this regard the only expert who supports the defendant's decision to proceed with that operation is the defendant himself. Messrs Fry and Ruff do not consider that third surgery was an appropriate intervention in light of the prior investigations, but concede that a minority of their colleagues in 1990 (including obviously the defendant) would have held a contrary view. (The fact that a minority of orthopaedic surgeons in 1990 would have given the same advice as the defendant does not preclude an adverse finding by the Court, and I need to come to my own conclusion as to whether or not the defendant breached his duty of care - Rogers v Whitaker at 487).
In my view, one of the most significant aspects of the evidence is that the defendant performed the third surgery even though he had failed to identify the precise source of the plaintiff's lumbar pain. On the one hand the facet block injection on 31 May 1990 and the test carried out whilst the plaintiff was on the operating table, suggested to the defendant that the problem was at the L4/5 level. However, these indications were contradicted by the discogram result on 5 August 1990 which established that that level of the spine was normal. (Furthermore the defendant knew that there was a conflict between his and the radiologist's interpretations of the CT scans of 28 May and 23 August 1990.)
On the other hand the defendant could find no abnormal movement in L5/S1 whilst the plaintiff was on the operating table, but there had been a prior report of "similar" pain produced at this level by the discogram injection.
It was against the background of these conflicting results that the defendant went ahead with the third surgery. As I understand the defendant's evidence he fused both L4/5 and L5/S1 because he believed that the plaintiff's pain was emanating from one of these two levels, and that accordingly it was likely to be relieved by a double fusion. He also believed that if he fused only the L4/5 level (which he considered was the most probable source of the pain) there were likely to be future problems at the L5/S1 level. Accordingly he thought it appropriate to fuse both levels at the one time.
In my view, the decision to proceed with the third surgery in such circumstances was a fairly drastic step, given the inevitable consequences to the plaintiff's mobility which would flow from the double fusion. I accept the evidence of Messrs Fry and Ruff that there were other measures short of a double fusion that could have been taken. In particular the plaintiff could have been placed in a plaster jacket (as suggested by Mr Ruff) to ascertain whether or not a double fusion was likely to relieve the symptoms. Alternatively, the defendant could have referred the plaintiff to a pain specialist, or failing that, performed an anterior bone fusion to the L5/S1 level alone (as suggested by Mr Ruff). This latter operation would have minimised the impact on the plaintiff's future mobility and would not have foreclosed the possibility of further or alternative surgical interventions at a later time.
Mr Fry's opinion that spinal fusion is essentially a mechanical solution to a mechanical problem accords with commonsense. I accept his evidence that before such an operation is performed it is necessary to establish with certainty the nature of the mechanical problem so that there can be reasonable prospects for a successful outcome. In the present instance there was no such certainty, and in my view the defendant breached his duty of care to the plaintiff by advising her to proceed with the double fusion the subject of the third surgery.
The plaintiff has testified that although she consented to the double fusion, she was not informed that this would involve the implanting of the Hartshill rectangle. There is no other evidence to corroborate this assertion by the plaintiff, and while I find her to be an honest witness, it is clear that her recollection of relevant events is unreliable (particularly as her evidence of her condition at material times contradicts the observations made in clinical records). Because of the passage of time and the lack of adequate notes, the defendant understandably cannot recollect his conversations with the plaintiff prior to the third surgery. In the end I am unable to determine whether or not he informed the plaintiff that he would be inserting the Hartshill rectangle.
The plaintiff has also testified that she was not warned that the third surgery might fail to relieve her lower back pain, and could in fact make it worse. While the defendant again cannot recollect the relevant discussions, his evidence as to his usual practise at the time is that he would have warned that there was a small chance of her low back remaining the same, and a very small chance of it being slightly worse.
In light of the evidence from Messrs Fry and Ruff, I find that the defendant's opinion at that time as to the plaintiff's likely prospects was incorrect. I find that at the very least there was a 50 per cent chance of the plaintiff's symptoms remaining the same or becoming worse.
In any event, I also find on the balance of probabilities that the defendant did not provide the plaintiff with a warning of his opinion as to the prospects of the possible adverse outcomes of the third surgery. In this regard, the plaintiff's evidence that no warning was given is corroborated by paragraph 10 of the defendant's defence as originally pleaded. When the defendant was asked why his defence was initially pleaded in this way, he could not offer any explanation (T 205 – 6). In my view the only reasonable inference which can be drawn is that the defendant initially instructed his solicitor that the plaintiff was not given any warning as to risks prior to the third surgery because it had been unnecessary to do so.
It follows that I find that the defendant was negligent not only in advising the third surgery but also in failing to warn the plaintiff as to the risks of relevant adverse outcomes.
I also accept the plaintiff's evidence that if she had been properly warned of the risks of adverse outcomes she would have chosen not to undergo the third surgery.

The quantum of damages

It is self‑evident that the third surgery was a major operation which necessarily involved some pain and suffering for the plaintiff. As a result of that operation the plaintiff was also required to undergo the fourth and fifth surgeries, together with the inevitable pain and suffering that each of those caused. In this regard I accept Mr Fry's evidence (at T 167) to the effect that the need for fusion of L3/4 was either caused, or at the very least accelerated, by the prior fusion of the two lower levels.
In the end the plaintiff has been left with residual and severe low back pain which has necessitated referral to a pain specialist and the implanting of a Morphine pump in her abdomen. Even with the benefits from use of the Morphine pump, the plaintiff continues to suffer from severe low back pain which will always be with her.
For the purpose of quantifying damages it is necessary to compare the plaintiff's symptoms and treatment since 1990 with the condition in which she would have been likely to have been in if the third surgery had not occurred. This is a difficult comparison given the plaintiff's prior history of a degenerating back condition culminating in her very severe pain state immediately prior to the third surgery. Although it is impossible to make a precise finding I accept Mr Fry's evidence (at T 169) to the effect that there is likely to be some additional component in the plaintiff's residual pain state as a result of the third surgery and it's aftermath. However, to my mind the evidence does not establish on the balance of probabilities that the need for the Morphine pump has been brought about by the third surgery. If (instead of performing the double fusion) the defendant had referred the plaintiff to a pain specialist in 1990, there is every chance that she would have commenced using a Morphine pump at a time earlier than when she in fact did.
I am also not satisfied that the third surgery significantly increased the need for gratuitous services that were subsequently provided to the plaintiff by members of her family. On the basis of the history that was recorded in Exhibit 1, I find that as at 9 August 1998 the plaintiff's neck symptoms prevented her from carrying out most of her normal household activities. Subsequently, and with the onset of the plaintiff's low back symptoms, her capacity to perform household work was further reduced. Nevertheless, I find that the stiffness in the plaintiff's lower back brought about by the third and fourth surgeries has further increased her physical incapacity and has brought about the need for some additional component of gratuitous services (which on the evidence I am unable to quantify).
It follows from the above findings that the assessment of all aspects of the plaintiff's claim for damages must be a matter of judgment rather than calculation. It is necessary to take a broadbrush approach bearing in mind that the defendant's negligence has essentially resulted in the plaintiff having a much stiffer low back than she otherwise would have had, and has caused needless additional pain and suffering from a series of three operations. In my view a reasonable assessment of general damages for all aspects of the plaintiff's loss would be the sum of $80,000.
Accordingly the plaintiff is entitled to judgment against the defendant for the sum of $80,000 general damages. The plaintiff is also entitled to special damages for the expenses she has or in the future will incur in respect of the third, fourth and fifth surgeries. I will need to hear further submissions from counsel as to the appropriate quantum of special damages in light of the findings that I have made.