Smythe v Burgman (No 2) - [2015] NSWSC 298

Supreme Court

New South Wales

Medium Neutral Citation: Smythe v Burgman (No 2) [2015] NSWSC 298
Hearing dates: 10, 11, 12, 13 and 14 March 2015
Decision date: 25 March 2015
Jurisdiction: Common Law
Before: Adamson J
Decision:
1. Judgment for the defendant.
2. Subject to an application for a different order being made within 7 days hereof, order the plaintiff to pay the defendant’s costs of the proceedings.

Catchwords: TORTS – alleged medical negligence resulting in amputation of leg – whether general practitioner ought to have diagnosed arterial ischaemia notwithstanding atypical presentation – relevance of subsequent detection of abnormal pulses to determination whether defendant checked pulses and found them to be normal at first examination – whether amputation would or could have been avoided if ischaemia diagnosed at first examination – insufficient evidence to assess the value of chance of avoiding amputation if earlier diagnosis made
CREDIBILITY OF WITNESSES – evidence of usual practice – inferences from clinical notes – importance of timing of versions given by plaintiff compared with contemporaneous business records
Legislation Cited: Civil Liability Act 2002 (NSW), ss 5D(1), 5E, 5O, 15B(2)(c), 16
Evidence Act 1995 (NSW), s 69(4)
Health Practitioner (NSW) Regulation 2010, Sch 2, cll 1, 2
Cases Cited: Coles Supermarkets Australia Pty Limited v Haleluka [2012] NSWCA 343
Connor v Blacktown District Hospital [1971] 1 NSWLR 713
Fox v Percy [2003] HCA 22; 214 CLR 118
Malec v JC Hutton Pty Limited [1990] HCA 20; 169 CLR 638
Onassis v Vergottis [1968] 2 Lloyds Rep 403
R v GK [2001] NSWCCA 413
Smythe v Burgman [2015] NSWSC 150
Watson v Foxman (1995) 49 NSWLR 315
Texts Cited: Justice D Hodgson, “The Scales of Justice: Probability and Proof in Legal Fact-finding” (1995) 69 ALJR 731
Joe P Chauvapun and Maciej Dryski, “Distal Peripheral Microembolism” 2005 13(1) Vascular 50
Category: Principal judgment
Parties: Lynne Smythe (Plaintiff)
Dr Zoe Burgman (Defendant)
Representation:
Counsel:
M Williams SC/CK Hickey (Plaintiff)
M Windsor SC/J Raftery (Defendant)
Solicitors:

File Number(s): 2012/370062

Judgment

Introduction

On 14 March 2011, Lynne Smythe went to see her general practitioner, Dr Zoe Burgman, complaining of pain in her left foot. Dr Burgman diagnosed infection and prescribed antibiotics. Mrs Smythe returned for a further consultation on 22 March 2011. On that occasion she presented with two complaints: a perianal abscess and some pinkness and tenderness in her left foot. Dr Burgman prescribed another course of antibiotics. On 29 March 2011, Mrs Smythe wanted to see Dr Burgman again for pain in her foot but, as she was unavailable that day, she saw Dr Follent, her husband’s general practitioner, instead.
On 30 March 2011 Dr Follent referred Mrs Smythe to Tweed Hospital. An ultrasound examination on 30 March 2011 revealed an arterial clot in her left leg. On 20 April 2011 her left leg was amputated below the knee.
Mrs Smythe claims damages from Dr Burgman in respect of the leg amputation, alleging that Dr Burgman was negligent in failing to diagnose arterial ischaemia either on 14 March 2011 or 22 March 2011, and that, had she diagnosed the condition on either of those two dates, her leg would probably have been saved.

Facts

Dr Burgman’s background and experience

Dr Burgman qualified with a MBBS in 2005 from the University of Sydney. On graduating she worked for about two years at the Nambour General Hospital as an intern and as a junior medical officer, in the course of which she worked in emergency medicine, general medicine, general surgery, oncology, obstetrics, gynaecology and paediatrics. In 2007 she was appointed senior medical officer at the Mater Health Services in Raymond Terrace, South Brisbane. She worked in adult and paediatric emergency and mental health. She also participated in the pre-vocational general practitioner placement program. From 2008 to 2009 she was a general practitioner registrar at the Meadows Medical Centre, Mullumbimby. Between January and July 2009 she was a general practitioner registrar in the emergency department of Tweed Hospital. From July 2009 until March 2010 she worked at the Wollumbin Street Medical Centre in Murwillumbah and had visiting medical officer rights to the Murwillumbah Hospital.
In 2010 Dr Burgman became a Fellow of the Royal Australian College of General Practitioners. In April 2010 she began working as a general practitioner at the Kingscliff Medical Centre. Her practice included a fortnightly clinic at two local residential aged care facilities. From January 2010 to March 2012 she also provided general practice services one day a week at the Bullinah Aboriginal Health Service in Ballina.

The medical context

In order to explain the reasons for my decision, it is necessary to set out, in a simple way, the relevant medical learning.
Blood circulates through the body through arteries, veins and capillaries. Arteries carry oxygenated blood away from the heart. The blood is carried to the thighs through femoral arteries (around the groin), which lead to the anterior (front) and posterior (back) tibial arteries through the lower legs and the dorsalis pedis, which leads to the foot. The blood then passes through capillaries and into the veins which carry the deoxygenated blood back to the heart.
Blood flow can be restricted due to a mechanical obstruction or a functional constriction of a blood vessel. Ischaemia is a term used to describe lack of blood in an area due to either mechanical obstruction or functional restriction of a blood vessel.
Atherosclerotic vascular disease, commonly known as atherosclerosis, is a disease of the blood vessels in which plaque builds up in the lining of the artery walls. It is fuelled by inflammation that results from damage to the artery wall. Over time, hard plaques develop and thicken. The artery is narrowed and circulation is impeded. The plaques can rupture, causing blood clots to form at the site or become dislodged.
There are various causes of mechanical obstruction to blood flow, including a blood clot (thrombosis) or pieces of plaque, which have become dislodged from the walls of blood vessels. Sometimes blood clots form around such debris and cause further obstruction. A functional constriction can occur through narrowing of the blood vessel due to a build-up of plaque in the lining of the walls of blood vessels.
An embolism is a sudden obstruction of a blood vessel by a clot or other foreign material (embolus) formed or introduced elsewhere in the circulatory system and carried to that location by the bloodstream. It generally occurs when material (typically a blood clot) travels through the blood stream and lodges in a blood vessel. Where the obstruction actually prevents circulation it is referred to as an occlusion. Larger embolisms can be removed by a surgical procedure, embolectomy. However microemboli cannot easily be removed with surgical catheters. They tend to break off and lodge in the smallest artery that they will fit into, which, in the lower limb, are usually those in the foot or the calf.
The body has protective mechanisms to clear obstructions and dissolve blood clots. If a clot dislodges, or is dissolved, either in part or wholly, by the body’s mechanisms, blood flow may be restored. When this occurs, the patient’s symptoms may abate. However, these mechanisms are not always effective.
The usual presentation of arterial embolus is the sudden onset of acute ischaemia with the classic “p’s” of pain, pallor, poikilothermia (coldness), pulselessness, paraesthesia and paralysis. It develops within hours because the arterial inflow may be completely blocked by the embolus. This is to be contrasted with the usual presentation of arterial thrombosis, which is usually related to underlying atherosclerosis and is of slower onset (days or weeks).
Because of the differences between arteries and veins, the location of the obstruction or condition is referred to as being either “arterio” (relating to an artery) or “venous” (relating to a vein). Obstructions give rise to different symptoms depending on their location because of the functional differences between arteries and veins.
Where the blood flow is compromised in the veins of the leg, fluid leaks out into the surrounding tissues distal to the blockage producing swelling in the foot and ankle, due to a build-up of pressure. There is tenderness in the calf because the vein that is blocked becomes inflamed.
Where the blood flow is compromised in the arteries in the leg by significant narrowing or blockage, claudication (a cramp-like pain felt in the calf when walking) is felt which progresses to ‘rest pain’. Rest pain is a generalised pain in the feet that comes on, or is made worse, when the leg is non-weight-bearing or elevated and circulation is, as a consequence, no longer assisted by gravity and movement. Because of the lack of oxygen, toxins and lactic acid build up in the flesh and muscles in the distal extremities (lower legs and feet). Since only arteries carry oxygen, rest pain is a feature of arterial, but not venous, ischaemia.
Ischaemic feet are purple when hanging down and blanch to white with elevation. Red speckling may be visible as red blood cells seep through capillary walls in association with numbness and pins and needles.
There are two locations in the lower limb where the pulse (pressure waves within an artery) is readily detected: the dorsalis pedis (at the base of the big toe, being the base of the first metatarsal, about a third of the way between the ankle and the big toe) and the posterior tibial (the inside of the ankle). If either or both of these pulses are compromised, atherosclerosis is a possible cause. However, if there is an arterial blockage beyond these two pulses, for example because the blockage is in the foot beyond the dorsalis pedis, it will not necessarily compromise the pulse. Nor will a narrowing of an artery necessarily compromise the pulse since blood flow may still be sufficient to maintain a normal pulse. However, below an occlusion in a main artery, pulses are usually absent or diminished. Diminution of a pulse can best be appreciated by comparing it with the pulse in the other limb, provided that the latter is normal.
A Doppler machine uses ultrasound to detect compromised blood flow from atherosclerotic disease and is more accurate than manual testing of pulses.
Where blood flow is compromised, capillary refill (return of blood) is often slow when compared with the opposite limb. The test for capillary refill is performed by pressing down on skin and noting how long it takes, after pressure is removed, for pink colour to return to the area. The speed of capillary refill is an indication of blood flow.

The plaintiff’s consultations with Dr Burgman

The plaintiff saw Dr Burgman on 15 separate occasions. The first was on 15 October 2010 when she attended the Kingscliff Medical Centre to obtain a prescription for blood pressure medication, her previous general practitioner having retired. She also attended on 29 October 2010, 8 November 2010, 22 November 2010, 26 November 2010, 17 December 2010, 6 January 2011, 20 January 2011, 24 January 2011, 28 January 2011, 7 February 2011, 18 February 2011, 4 March 2011, 14 March 2011 and 22 March 2011. These proceedings are concerned with what occurred in the last two consultations.
The plaintiff had several conditions which caused her, at times, to consult a medical practitioner for treatment and medication. She had impaired glucose tolerance, a family history of diabetes, high blood pressure, high cholesterol, obesity, asthma and suffered from heavy menstrual bleeding and a resultant iron deficiency.
The consultations referred to above in November and December 2010 and January and February 2011 were principally concerned with heavy menstrual bleeding. On 6 January 2011 Dr Burgman consulted, by telephone, with Dr Trueman, a gynaecologist, who recommended that she prescribe Tranexamic Acid to the plaintiff to treat this condition. The plaintiff originally alleged that this prescription was negligent and that Tranexamic Acid caused or contributed to ischaemia in her left leg by making her more susceptible to blood clots. She subsequently amended her statement of claim to delete the allegation. Her new solicitors endeavoured, shortly prior to the hearing, to resurrect this aspect of her case, but leave was refused: Smythe v Burgman [2015] NSWSC 150 (Hoeben CJ at CL). The effect of the abandonment of these allegations is that the plaintiff does not allege either that:

the prescription of Tranexamic Acid was negligent; or

Tranexamic Acid caused or contributed to the ischaemia which led to the loss of her left lower limb.

Because some of the expert reports in evidence were prepared when the allegations concerning Tranexamic Acid were being pressed, I have been asked to disregard those passages which address those issues.

The consultation on 14 March 2011

On Monday 14 March 2011 the plaintiff made an appointment to see Dr Burgman at 3.30pm. According to the Medical Centre’s records, which I accept, she saw her from 3.41pm until about 3.52pm. The plaintiff was the 28th patient Dr Burgman had seen that day. Dr Burgman had had a lunch break for about an hour from about 12.20pm, during the course of which she had spoken with a podiatrist for about five minutes.
It was Dr Burgman’s practice to take notes in the course of a consultation by typing on a keyboard on her desk. The patient was seated to the side of the desk in the course of the examination. Dr Burgman would get up in the consultation to examine the patient but tended to remain seated while taking a history and after the examination. She documented what occurred in the consultation contemporaneously. It was her usual practice to document abnormal findings and the more significant of the normal findings. It was also her usual practice to record in her clinical notes any family history disclosed by a patient.
I am satisfied that Dr Burgman adhered to her usual practice when making the following clinical note of the consultation on 14 March 2011:

“Monday March 14 2011 15:41:45
Dr Zoe Burgman
Pain Left foot 48 hrs
?bite
becoming redder more tender but still not much to see
cracked heels
no focal pain, no evidence bony injury
no mechanism injury
no evidence gout
calf snt [soft non-tender]
painful to stand on
?infection post bite
plan: elevate, fluclox, paracetamol, review 48 hrs if nil improvement
Reason for contact:
Foot - Pain
Actions:
FLAGYL TABLET 400mg ceased.
Prescription added: FLUCLOXACILLIN CAPSULE 500mg 1 q.i.d.
Prescriptions printed:
FLUCLOXACILLIN CAPSULE 500mg 1 q.i.d.
PRIMOLUT N TABLET 5mg 3 daily”

Based on Dr Burgman’s clinical note and her evidence of her usual practice and her recollection of the consultation I am satisfied that the following occurred during the course of the consultation on 14 March 2011.
The plaintiff told Dr Burgman that she had pain in her left foot for two days, which was not confined to a particular location, and that her foot was becoming redder. The pain was not associated with any particular injury and she was not aware of having been bitten. It was uncomfortable for her to stand on her left foot.
Dr Burgman examined the plaintiff’s left foot to inspect its colour and to see whether there was any deformity or swelling. She conducted the examination with ungloved hands. She felt her foot, toes and ankle to check the temperature. Her left foot was not hot to touch. Dr Burgman observed that the plaintiff’s heels were quite cracked on both feet. Her left foot was warm and well perfused.
She used her second, third and sometimes fourth finger to palpate the foot. She did not use her thumb for palpation but may have used her thumb to provide an opposing resistance on the other side of the foot.
Dr Burgman initially checked the dorsalis pedis and posterior tibial pulses on the left foot and found them to be present and normal. It was her usual practice when feeling for a pulse to count it and I accept that she did so in this consultation. Dr Burgman then checked the pulses on the right foot, which she also found to be present and equal to the pulses in the left foot. She conformed to her usual practice and conducted a capillary refill test on the plaintiff’s great toe, over the nail bed. Although the capillary refill test is not recorded in the notes, Dr Burgman explained that the note, “no evidence gout” indicated that she had examined the toes.
Dr Burgman also moved the plaintiff’s foot, including her ankle and toes. The plaintiff’s left foot was neither blue nor cold. It was pink in colour compared to the right. There were no specific areas of discolouration. Dr Burgman intended to indicate when she typed in her clinical note “becoming redder more tender but still not much to see” that there were no focal areas of discolouration.
Dr Burgman examined the plaintiff’s calves for indications of deep vein thrombosis and found the left calf to be soft. The plaintiff confirmed that it was not tender. Dr Burgman explained that she recorded the finding about the calf (“snt”), although it was normal, because she regarded venous thrombosis as a likelier differential diagnosis that atherosclerosis because the plaintiff’s left foot was pink and tender. She considered this to be more suggestive of venous thrombosis, which may produce a pink, warm leg or foot anywhere distal to (below) the clot. Dr Burgman did not ask the plaintiff whether she had any family history of vascular problems since she had excluded both venous thrombosis and atherosclerosis on the basis of her clinical examination.
For reasons given in more detail below by reference to the plaintiff’s credibility I do not accept the plaintiff’s evidence except when it is corroborated or amounts to a statement against interest. Although the plaintiff’s evidence was that Dr Burgman did not conduct the type of examination that was conducted by Dr Follent on 29 and 30 March 2011 to check her pulses, she nonetheless provided a set of assumptions to the joint conclave that expressly referred to Dr Burgman pressing down on the top of her foot, both when she was sitting and standing. She admitted in cross-examination that Dr Burgman touched the top of her left foot, including the back of her toes. These descriptions are consistent with the pulses being checked. I regard them as corroborative of Dr Burgman’s evidence that she checked the plaintiff’s pulses on 14 March 2011.
The cause of the left foot pain was not clear to Dr Burgman. She considered that the cracked heels might have been a point of entry for infection. Although there was no history of insect bites, Dr Burgman considered the possibility that she might be reacting to an insect bite. Dr Burgman considered gout but excluded it after examining the plaintiff’s foot. Her initial conclusion was that she may have a cellulitis or infection from something getting through the cracked heels. Dr Burgman prescribed antibiotics. Before the plaintiff left the consultation, Dr Burgman told her that if she had not improved within 48 hours she should make an appointment to return.
Dr Burgman considered, as at 14 March 2011, that a valid definitive diagnosis of infection had been established.

The consultation with Dr Burgman on 22 March 2011

The plaintiff did not see Dr Burgman again until eight days later, on 22 March 2011 at 12.10pm. She was the 19th of a total of 22 patients whom Dr Burgman saw that day. The plaintiff told her that her foot had improved but that it was not fully resolved. Dr Burgman found that there was still some erythema (pinkness) and tenderness in her left foot. The appearance of the foot and the history given did not cause Dr Burgman to be concerned that the plaintiff might have ischaemia. The left foot was not painful at the time and appeared to be responding to antibiotics. The perianal abscess was still symptomatic. Dr Burgman prescribed another course of antibiotics for both conditions (left foot and perianal abscess).

Dr Burgman made the following clinical note of the consultation:

“Tuesday March 22 2011 12:10.:23
Dr Zoe Burgman
foot still some erythema and tenderness
some blood from abscess site [peri-anal] on wiping – one off
continue fluclox for both
review bottom after same completed
Actions:
FLUCLOXACILLIN CAPSULE 500mg ceased.
Prescription added: FLUCLOXACILLIN CAPSULE 250 mg 1 q.i.d.
Prescriptions printed:
FLUCLOXACILLIN CAPSULE 250 mg 1 q.i.d.”

There is no note in the clinical notes of 22 March 2011 of any family history of blood clotting being disclosed by the plaintiff. I am satisfied that the plaintiff did not disclose any such family history on that day or at any other time to Dr Burgman. I do not accept the plaintiff’s evidence that she told Dr Burgman that her mother and grandmother both have a history of blood clots.
There is no note of the plaintiff having told Dr Burgman on 22 March 2011 that she had tingling or pins and needles in her left foot. I am satisfied that, had the plaintiff told Dr Burgman of that symptom, Dr Burgman would have recorded it as it was a new symptom and it would have caused Dr Burgman to consider other diagnoses, or, as she put it, to “reopen the possibilities”. Accordingly, its absence from the clinical note signifies that the plaintiff did not tell her that she had tingling or pins and needles in her foot. I reject the plaintiff’s evidence that she told Dr Burgman of tingling and pins and needles. Further, I am not satisfied that she was experiencing that symptom at the time of the consultation. Although she said, in her initial statement to her solicitors prepared before 23 June 2011 (referred to below in the context of her credibility), that between 14 and 22 March 2011, “The pain went away but there was a tingling sensation in my foot”, I do not accept that she actually experienced this symptom at that time since I consider that had she done, she would have reported it to Dr Burgman on 22 March 2011.
I do not accept that there was any discolouration of the plaintiff’s foot on 22 March 2011 apart from the redness that Dr Burgman recorded.
For reasons given in more detail below by reference to the plaintiff’s credibility, I do not accept the plaintiff’s evidence in several material respects.

Consultations with Dr Follent on 29 and 30 March 2011

According to the plaintiff, the pain in her left foot returned on 29 March 2011. She wanted to see Dr Burgman again but, as Dr Burgman was working elsewhere that day, the plaintiff arranged to go to a different clinic to see her husband’s general practitioner, Dr Follent, who diagnosed gout. Dr Follent recorded the following in his clinical notes, which I accept as an accurate record of the history given, his findings and diagnosis:

“Tuesday March 29 2011 17:37:42
Dr J William Follent
History
Pain L foot on and off for 2/52….general….not really anything to see and good capillary return and eventually dp [dorsalis pedis] on the L felt not pt [posterior tibial] but both easily on the R side….obs here and pulse 82 reg nil murmur….abdo [abdomen] soft non tender….popliteal and femorals [arteries] hard to feel….both sides….afebrile….
Reason for contact:
Polymenorrhoea
Left Gout – acute attack
Actions
Prescription added: TRANEXAMIC ACID TABLET 500 mg 2 q.i.d.
Prescription added: INDOCID CAPSULE 25mg 1-2 b.d. p.r.n.
Prescription printed:
INDOCID CAPSULE 25mg 1-2 b.d. p.r.n.”

The plaintiff went to see Dr Follent again on 30 March 2011 at 11.13am. Her symptoms had changed from the previous evening. Dr Follent could not detect the posterior tibial pulse. He referred her to Dr Doctor at Accident and Emergency at Tweed Hospital. His referral letter, which I accept as accurate, said:

“Presenting Problem:
Thanks for seeing with cool dusky L foot intermittent last two weeks….last night I saw and eventually felt L dorsalis pedis pulse but difficult cf R foot…and the L foot last night was similar to the R ie warm and skin colour the same…I can’t feel L pt pulse….also some L “kidney” pain? Related….thank you.”

Admission and discharge from Tweed Hospital on 30 March 2011

The plaintiff presented for triage at Tweed Hospital at 11.44am. The hospital notes recorded the following presenting information, which I accept as accurate:

“increasing pain into l [left] foot, similar episode 2/52 [two weeks] ago and resolved
has been in care of gp rx [treatment] for gout
today pain, paller [sic, pallor], cyanosed [bluish discolouration] pulselessness in l [left] foot
cool to touch foot, altered sensation, numbness and tingling at present, cap. [capillary] refill. 2 sec.”

The hospital notes recorded that the plaintiff was examined by Dr Fawcett who recorded that the plaintiff told her that a fortnight ago she had been treated for an insect bite infection with antibiotics and that her little toe was bright red and her foot was blotchy. She related to Dr Fawcett that she had returned to her general practitioner the previous day (29 March 2011) with pain in her left foot which had been treated as gout. She said that this morning the pain in her left foot had started to ease but she noticed that it was also pale and cold and that her general practitioner (Dr Follent) had told her to come to the Emergency Department. She described a “shooting tingling sensation in foot, worse on elevation” and “aching calves”. Dr Fawcett noted that there was no history of claudication.
The plaintiff also told Dr Fawcett that she was an ex-smoker of 30 years and that both her mother and grandmother had had deep vein thrombosis. She had not disclosed either of those matters to Dr Burgman or, indeed, to Dr Follent.
Dr Fawcett noted, relevantly, that she looked well although she walked with a limp and recorded the following examination of the left foot:

“Left foot: from ankle joint down
pale
purple sole
cold
Normal movements
no palpable pulses (pulse easily palpable on right)
4th and 5th digits decreased sensation
Unable to locate popliteal pulses on either side
No pulses located with doppler”

The following “Impression and Plan” were noted:

“Impression
arterial insufficiency to foot ? cause
Plan
D/W [discussed with] Dr Peterson
For US [ultrasound] dopplers of arteries then discuss with gold coast [Gold Coast Hospital]”

Dr Fawcett added the following addendum to the hospital notes at 2.21pm:

“Contacted by sonographer, >75% stenosis left proximal femoral artery
D/W [discussed with] Vascular registrar on call at Gold Coast Hospital
Advises – can go home if pain controlled on oral painkillers
To attend clinic this Friday at 1pm (QLD) time) at Southport Hospital
To return to ED [Emergency Department] sooner if symptoms worsen

Discussed with radiologist here.
Requires DSA [digital subtraction angiography] +/- stent
D/W pt [patient] no increase in pain, but notes great toe gets white when walking
Pt concerned, therefore will go to Southport [Gold Coast Hospital] tonight.
Pt sent with copies of assessment, referral letter, copies of bloods and ECG [electrocardiogram] and scans.”

The plaintiff did not recall any discussion about the prospect of taking medication and being allowed to go home. She said in evidence that she was told to go straight to Southport and that her husband should drive her there as it would be quicker than an ambulance. I regard her evidence on this topic as another example of her unreliability. I prefer the clinical notes of medical practitioners, including those of Dr Burgman, to the plaintiff’s recollection, for reasons given in more detail below by reference to her credibility.

Admission to Gold Coast Hospital on the evening of 30 March 2011

The plaintiff was admitted to the Emergency Department of Gold Coast Hospital in the evening of 30 March 2011. On examination her left foot was painful, pale and cold. She had paraesthesia. Neither the dorsalis pedis nor the posterior tibial pulses could be detected in her left leg.
A CT scan taken on 30 March 2011 found a central luminal filling defect present in the left proximal superficial femoral artery extending for about 2cm which was noted to be consistent with acute embolus in the proximal left superficial femoral artery. Accordingly, the principal diagnosis was left leg ischaemia secondary to acute embolus in left sub-femoral artery.
Professor Harris (a vascular surgeon who gave expert evidence in the proceedings) also noted an image taken at a CT section at the mid-calf level on 30 March 2011 which was consistent with microembolic occlusion of the left posterior tibial artery there, which he considered would fit with the clinical picture. Although there was an embolus in the femoral artery that could be (and was) removed surgically, the microemboli in the left posterior tibial artery were, according to Professor Harris, of greater concern because they were too small to be removed surgically. Although Dr Hardman originally considered, when he viewed the report of the CT scan that it showed a satisfactory three-vessel run-off, I took him to agree, in concurrent evidence, with Professor Harris’ view about the presence of further emboli in the left posterior tibial artery.
A left femoral embolectomy was performed on 31 March 2011. Initially the plaintiff seemed to be improving but on 2 April 2011 there was increased numbness which occurred spontaneously when walking.
A CT scan taken on the plaintiff’s lower left limb at 7.01pm on 2 April 2011 recorded a long segment absence of flow from the origin of the left superficial femoral artery to the distal superficial femoral artery reconstituting 10cms proximal to the knee. Poor flow was demonstrated within the arteries of the left calf in that there was no filling (that is, there was a blockage) of the anterior or posterior tibial arteries below the mid-calf. The radiologist concluded that the findings may represent embolus, thrombus or dissection.
Further surgery was performed on 3 April 2011 by Dr Butcher. The hospital records noted the following procedures were carried out:

“LEFT FEMORAL and TIBIAL
THROMBECTOMIES; ANGIOGRAPHY; PATCH 04:18
ANGIOPLASTY INDICATION: Deteriorating
ischaemia left foot; thrombosed SFA [superficial femoral artery]
PROCEDURE: left groin reopened Arteriotomy
reopened fogarty thrombectomy - thrombus
retrieved, good backbleeding Angio – poor tibial
runoff BK pop exposed Fogarty guided down
TPT [posterior tibial artery] and ATA [anterior tibial artery] Further thrombus retrieved Angio still poor. Patch angioplasty to CFA with
proximal GSV BK pop opened Further
thrombectomies to foot Still no runoff (obviously
foot circulation is occluded) Patch angioplasty
Layer closure with vicryl and monocryl Yeates
drain in pop would Postop: iv heparin kefzol
analgesia R. Ward-Harvey”

Despite this surgery there was still no filling of the anterior or posterior tibial arteries and circulation in these vessels remained compromised.
An angioplasty was performed on 12 April 2011 which revealed an abrupt distal occlusion of the anterior tibial, the posterior tibial and the peroneal arteries, which are the three arteries in the calf. Flow could not be re-established in the distal calf despite attempted catheter thrombectomy.
Eventually the plaintiff’s left lower limb was amputated on 20 April 2011. It was common ground that the amputation was, by that time, necessary.

The expert evidence on liability

On 1 December 2014 the following doctors participated in a joint expert conclave:

Doctor

Party by whom called

Specialty

Dr Kelly

Plaintiff

General Practitioner

Dr Hardman

Plaintiff

Vascular surgeon

Dr Walker

Defendant

Specialist in General Practice

Dr Dunkely

Defendant

Haematologist

Professor Harris

Defendant

Vascular surgeon

Each of the doctors prepared reports that were in evidence. The joint report of the conclave was tendered. All doctors who took part in the conclave gave evidence in the course of the hearing: Drs Kelly, Walker and Dunkley gave evidence concurrently and Dr Hardman and Professor Harris gave evidence concurrently.
There was no dispute that each of the experts was qualified to give the opinions asked of him or her.
Dr Hardman is a consultant vascular surgeon, and Adjunct Professor of Surgery and Anatomy at the University of Canberra and Clinical Associate Professor for the Department of Surgery at the Australian National University.
Professor Harris is Emeritus Professor of Vascular Surgery at the University of Sydney. He has been the Foundation Professor of Vascular Surgery at Royal Prince Alfred Hospital since 1998.
Dr Walker has worked in group general practices for about 19 years. For the last 16 years she has also worked as an educator and examiner of general practitioners. She is a quality assurance examiner for the Royal Australian College of General Practitioners and, as such, she supervises other examiners of candidates for the Fellowship of the College. She is a member of the Conduct Committee of the Medical Council of New South Wales and, as such, assesses complaints made to the Medical Council and the Health Care Complaints Commission and determines how those complaints are to be dealt with.
Dr Dunkely is the Staff Specialist Haematologist and Director of the Haemophilia and Thrombosis Unit at the Royal Prince Alfred Hospital.
Dr Kelly has been a Fellow of the Royal Australian College of General Practitioners since 1993 and works in general practice, medical education and as a medicolegal consultant.
There was substantial agreement between the doctors who participated in the conclave as to the following matters, which are summarised below. Their oral evidence is also referred to.

The plaintiff’s underlying condition, relevant risk factors and whether her presentation was typical

The experts agreed that the plaintiff had an underlying atherosclerotic vascular disease which was stenotic (as it caused abnormal narrowing of her arteries). She suffered from arterial thrombosis. The defect in the proximal left superficial femoral artery that was seen on the CT scans of 30 March 2011 and 2 April 2011 was due to atherosclerotic plaque in that artery.
The experts were unanimous in the joint report that the presentations on 14 March 2011 and 22 March 2011 were “atypical of acute lower limb ischaemia”. In oral evidence, Drs Walker, Dunkley and Professor Harris adhered to the joint view earlier expressed that her presentations on 14 March 2011 and 22 March 2011 were atypical of acute lower limb ischaemia. Dr Kelly, on further reflection, no longer agreed that the plaintiff’s presentation was “atypical” but considered her presentation whilst “unusual” to have been consistent with acute lower limb ischaemia. Dr Hardman opined that the aetiology was atypical but the presentation was typical.
Dr Walker considered the plaintiff’s presentation to be atypical of ischaemic pain because it was worse on standing and walking, rather than at rest and it was localised rather than generalised. Dr Walker (with whom Dr Dunkley agreed) considered the plaintiff’s situation to be “very uncommon” and explained that:

“Generally in acute ischaemia the symptoms start and they persist and they get worse and they become associated with other symptoms.”

Dr Dunkley considered the history to be “very unusual” in that it was “stuttering” as there were apparent periods of improvement of the symptoms when one would generally expect progressive worsening of the symptoms with ischaemia. In light of the aetiology that was subsequently revealed by the investigations undertaken at Gold Coast Hospital, Dr Dunkley explained that a clot that was causing symptoms could dissolve, which would lead to improvement in blood flow. Dr Kelly said that he could not say whether the degree of improvement that was noted after 14 March and before 22 March 2011 was consistent with the natural course of an ischaemic condition although he did accept that it was possible for there to be some waxing and waning of an ischaemic condition.
The experts agreed that the plaintiff had known risk factors for development of ischaemia as a consequence of arterial disease, including obesity, hypertension, hypercholestrolaemia, diabetes, her past history of smoking and a family history of atherosclerotic disease.

Differential diagnoses

The experts agreed that it was a fundamental principle of diagnosis that where a patient presents with symptoms that are susceptible of more than one diagnosis, any diagnosis with a lethal potential or serious morbidity risk should be established as a definitive diagnosis and treated or an attempt made to rule it out by establishing a valid alternative diagnosis. However neither Dr Dunkley, nor Dr Walker nor Dr Kelly agreed with the proposition put to them by Mr Williams that a potentially lethal condition could not be excluded until a valid alternative diagnosis had been established.
The experts agreed that it was reasonable for Dr Burgman to consider that a likely cause of the plaintiff’s symptoms on 14 March 2011 was an inflammation or an infection but that reasonable care required that Dr Burgman also consider a diagnosis of venous thrombosis (by palpating the plaintiff’s calf) and a diagnosis of arterial disease (by palpating her foot pulses). They agreed that Dr Burgman had considered these alternative diagnoses, as well as a fracture and gout, and had actively examined the plaintiff on both 14 and 22 March 2011.
In his oral evidence Dr Dunkley described the diagnosis of infection as a “perfectly reasonable / correct diagnosis” to make at the time of the original assessment in light of the original physical findings. As appears from my findings on liability set out below I accept his opinion.

Whether Dr Burgman’s care of the plaintiff complied with the relevant standard

The experts agreed that the standard of care provided to the plaintiff by Dr Burgman in respect of the diagnosis and management of her complaints of pain in her left foot was, if her version of the examination conducted on 14 March 2011 was accepted, consistent with the standard reasonably expected of a general practitioner of equivalent training and experience in 2011. They also considered that the plaintiff’s version (given on alternative assumptions) was also consistent with the required standard as long as the pulses were tested.
The experts agreed that if the examination had been conducted on 14 March 2011, it would not need to be repeated on 22 March 2011 if the clinical impression was that the plaintiff had improved. Further, they agreed that this clinical improvement would reinforce Dr Burgman’s views that the initial diagnosis of infection was reasonable.
Dr Dunkley explained that, with the benefit of hindsight, one could infer that the improvement of symptoms between 14 and 22 March 2011 was likely to be due to a dissolution of a clot at some point between those dates which improved blood flow and therefore led to a reduction of pain. However he opined that it would not have been reasonable to infer that that was the explanation at the time. Dr Dunkley considered that on 14 March 2011 the clinical diagnosis was infection or inflammation. He explained:

“. . . the reality of medicine at that point in time was an infective diagnosis was by far the most likely, by far the most clinically apparent, and therefore the treatment given was perfectly reasonable.”

The experts agreed that the overall conduct of Dr Burgman in managing what they described as “this complex issue” was diligent and in keeping with prudent professional practice in 2011, as judged by peer professional opinion, if her version of her consultations was accepted.
The experts considered that, even if the plaintiff’s version of the examination on 14 March 2011 (as outlined in assumptions that they had been given) was accepted, the examination would also be judged as prudent professional practice by peer professional opinion widely accepted in Australian in 2011 as long as vascular supply was assessed.
They also agreed that the measuring of ankle blood pressure with a Doppler pocket machine is a reliable screening method when lower extremity ischaemia is suspected. However, they considered the technique to be highly specialised and to depend on an understanding of the anatomy and the wave form analysis of the Doppler signal, which one would not expect a general practitioner to have. There was, accordingly, no criticism of Dr Burgman for not measuring ankle blood pressure in this way. The expert evidence established that the examination of foot pulses is a simple manual examination for a doctor with a reasonable amount of experience and that, as an experienced doctor, Dr Burgman would have been able to identify if the pulse was reduced.

Whether the plaintiff’s left pulses would or could have been normal had they been checked on 14 March 2011

The question whether Dr Burgman checked the pulses in the plaintiff’s lower left limb on 14 March 2011 was a significant one because of the unanimous view of the experts that reasonable care required at least the dorsalis pedis pulse to be checked, since arterio-ischaemia was a differential diagnosis that needed to be excluded.
Drs Kelly, Walker and Dunkley considered that if Dr Burgman palpated the dorsalis pedis pulse in the left foot and found it to be normal, there was no need to take the vascular examination any further.
The experts agreed in the joint report that it was more likely than not that if Dr Burgman had carried out a Doppler examination on 14 March 2011 and on 22 March 2011, the same Doppler signal in the distribution of the dorsalis pedis pulse would have been noted. However, Mr Williams did not put to Drs Kelly, Walker and Dunkley that there was any inconsistency between Dr Burgman finding a normal dorsalis pedis pulse on 14 March 2011 and Dr Follent finding a compromised dorsalis pedis pulse on 29 March 2011. Nor did any of those doctors express any reservation about any inconsistency between these findings.
However, this issue was explored by Mr Williams with both Professor Harris and Dr Hardman, who were asked in concurrent evidence whether it was possible for the plaintiff’s dorsalis pedis and posterior tibial pulses to have been normal on 14 March 2011 having regard to what ensued in the following weeks. Dr Hardman said:

“My expectation, particularly since I know how the story ended, is that on 14 March had I examined the patient I would have expected not to find pulses in the affected posterior tibial or dorsalis pedis, that is the pulses of the ankle in the foot, but on the contralateral side I would have expected to find a normal set of posterior tibial and dorsalis pedis pulses.”

Dr Hardman considered it to be highly unlikely that the pulses on 14 March 2011 were normal in light of the angiogram performed on 2 April 2011 which showed poor flow within the arteries of the left calf. He said that, as vessels between the knee and the foot were blocked off as at that date, this process would have had to have occurred between the (postulated) normal pulses on 14 March 2011 and the abnormal pulses found at the end of the month by Dr Follent. However, he accepted Professor Harris’ hypothesis that the pulses could have been normal on 14 March 2011 although he considered that this would be a “rare event”.
Professor Harris said that stenosis in the superficial femoral artery is consistent with having normal pulses at the ankle level. He explained that it does not follow that, even if there is considerable narrowing, the pulses would be compromised. He also said:

“. . . if it is correct that she was having microemboli to the foot which was causing the pain and the symptoms earlier on, it is perfectly possible for that to occur with normal pulses and in fact the pulses may even be a bit more prominent because of the blockage that’s occurred beyond where the pulse is being felt. So that the pulses could be present even for your normal or the pathological process of blockage of the smaller vessels in the foot [to] be present.”

Professor Harris also considered that the foot colour and the warmth of the foot on 14 March 2011 were consistent with normal pulses.
The debate on this question was relevant to the determination whether there is an objective fact (namely the impossibility of there being uncompromised pulses on 14 March 2011, having regard to what occurred later that month and in early April 2011), which can assist in determining whether Dr Burgman’s evidence that she checked the pulses on 14 March 2011 and found no abnormality, ought be accepted. Once Dr Hardman and Professor Harris accepted that the possibility of normal pulses could not be excluded, it does not seem to me to be relevant what the chances of a normal pulse on 14 March 2011 were, as long as there was some chance. I accept Professor Harris’ opinion that one could not necessarily relate back a subsequent finding of an abnormal pulse to 14 March 2011 and therefore, implicitly, that speculation as to what a pulse would have been at an earlier time was arid. In my view Professor Harris’ view has particular force in the present case where the vascular condition of the plaintiff’s left leg was dynamic, as evidenced by the changes that occurred in the period from 14 March 2011 to April 2011 that produced a range of symptoms and clinical manifestations (including some apparent improvement between 14 and 22 March 2011) and findings on CT and angiogram investigation.
I regard Mr Williams’ submission to the contrary as founded on a fallacious basis since it proceeded as follows.

It is unlikely (but not impossible) that, given what occurred on 2 April 2011, the plaintiff’s dorsalis pedis and posterior tibial pulses would have been normal if they had been checked on 14 March 2011.

Dr Burgman gave evidence that she checked the pulses on 14 March 2011 and found them to be normal.

Therefore it is unlikely that she is telling the truth.

One of the flaws in this reasoning is that it transposes the chance of the pulse being normal to the assessment of Dr Burgman’s credibility: cf R v GK [2001] NSWCCA 413 at [47] – [53] per Mason P; see also Justice Hodgson, “The Scales of Justice: Probability and Proof in Legal Fact-finding” (1995) 69 ALJR 731, especially at 740-741.

The relevance and import of the additional assumption: that the plaintiff had complained to Dr Burgman of pins and needles in her left foot on 22 March 2011

For the reasons given above, the opinions summarised below are, necessarily, hypothetical since I do not accept that the plaintiff had experienced pins and needles or tingling between 14 March 2011 and 22 March 2011, nor that she reported such symptoms to Dr Burgman on 22 March 2011.
Mr Williams asked the experts to assume that on 22 March 2011 the plaintiff had complained to Dr Burgman of pins and needles in her left foot. This assumption had not previously been put to them. Dr Dunkley considered pins and needles to be consistent with a number of diagnoses, including a compromised vascular supply to the affected area; but more commonly problems with the nerves in the feet, as well as inflammation such as gout or infection such as cellulitis. He described pins and needles as a “very nonspecific symptom or finding”, as did Professor Harris. Dr Kelly added that pins and needles were also consistent with a chronic condition such as vitamin B12 deficiency as well as “many other causes”.
Dr Walker explained that it was important to look at the whole clinical picture, rather than to isolate particular symptoms or complaints. She said that when Dr Burgman saw the plaintiff on 22 March 2011 the clinical picture was one of improvement and therefore a new symptom would not cause her to revive an excluded diagnosis if symptoms that had earlier been reported had abated.
When the alternative assumption (of a history of pins and needles) was put to Dr Kelly, he said that:

“In a situation of the presentation on 14 March and then the presentation on 22 March, I believe that the obvious explanation is a continuation of the same process.”

Dr Hardman considered that the additional assumption, if made out, would provide further evidence that the tissue damage from lack of blood flow was continuing within the foot. Although I accept Dr Kelly’s and Dr Hardman’s evidence, I do so only on the basis that it ought be understood as informed by hindsight since neither opined that Dr Burgman ought to have revised her diagnosis of 14 March 2011 on the basis of the new (assumed) symptom. I accept Dr Dunkley’s analysis as follows:

“ . . . as the case unfolds one obviously naturally wants to track one diagnosis through the evolving illness. That doesn't necessarily mean that the end diagnosis several weeks later was clinically the likely diagnosis either on the 14th or the 22nd.”

Record-keeping

The experts considered prudent professional practice to require the documentation of clinical findings, whether positive or negative, relevant to the clinical decision. Although alleged failure to make adequate clinical notes (or to comply with Health Practitioner (NSW) Regulation 2010, Sch 2, cll 1 and 2) was not a particular of negligence, record-keeping was an issue because of its relevance to Dr Burgman’s evidence that she recorded, as a matter of course, only abnormal findings or particularly significant normal findings.
Drs Walker, Kelly and Dunkley agreed that peer practitioners would expect a doctor to take note of all significant findings. They agreed that the presence or absence of a dorsalis pedis pulse on 14 March 2011 was a significant finding in the plaintiff. However, Dr Walker said that many doctors take the approach of recording only those clinical findings which are abnormal and that, because it is an approach that is commonly used by general practitioners, it amounts to accepted practice.
Professor Harris said in concurrent evidence that he would have expected if the pulses were absent that this would have been recorded but he would not necessarily expect a general practitioner to make a note if the pulses were there.

The cause of the loss of circulation that led to the amputation

The experts agreed that the initial thrombectomy / embolectomy were successful in re-establishing circulation into the leg. The failure of that surgical intervention to salvage the leg was related to poor tissue perfusion which was probably due to multiple distal emboli, from the original atherosclerotic lesion. The superficial femoral artery remained patent after surgery.
On the balance of probabilities the clinical problem was the sequential obliteration of small vessels in the foot from emboli more proximally in the arterial tree. As such, the clinical problem developed slowly and by the time the ischaemic problem was clinically obvious, the likelihood of successful revascularisation resulting in preservation of the foot was low. This clinical problem, with the associated poor risk of successful revascularisation, in the view of chronic embolic occlusion in the small vessels of the foot is well documented.
As soon as the plaintiff’s former solicitors received the report of the joint conclave on 1 December 2014, they wrote to Dr Hardman to ask for his opinion on further questions in light of the report. They asked him whether, had Dr Burgman diagnosed lower limb ischaemia on 14 March 2011, her lower left limb would have been saved. He opined in his written response that, had the plaintiff had an angiogram and the focal superficial femoral artery lesion been noted, it would have been amenable to angioplasty and probably contained by a covered stent graft. The assumptions that underpinned Dr Hardman’s opinion were explained in his oral evidence as follows:

“. . . my assumption is that prior to her original presentation on the 14th she had no pain in the leg, so I'm assuming that at that stage her vessels between her knee and her foot were open. At around the 14th she presented with pain, so she had started to block those vessels off from bits of clot that were probably related to the disease between her hip and her knee. It was just being washed down the stream. It is more likely than not that the initial degree of clot in the leg was smaller in volume than it was two weeks later. And if you intervened at the time when the volume of clot was lower in the leg, it is more likely than not that the leg would be - we would have been able to remove the clot or prevent further clot going into the leg, by treating the blockage between the hip and the knee. So it's on that basis that I make that comment.”

Professor Harris did not accept the validity of the assumption that the vessels between the plaintiff’s knee and foot were open until 14 March 2011. He said:

“In fact it could have been going for longer than that but be clinically silent, because little bits of small debris can go and block off the arteries in the foot without it necessarily being apparent to the patient. At the end of the day that was the problem that resulted in the limb loss, despite restoring arterial potency at Gold Coast Hospital.”

Professor Harris considered that even though blood flow was restored to the superficial femoral artery, the foot still had to be amputated because the smaller vessels in the foot had been obliterated. He opined that that process could well have begun prior to 14 March 2011.
I accept the opinions of Professor Harris which are set out in his report of 18 November 2013:

“In my opinion, based on the reports received, the most likely aetiology of a 2cm 75% focal stenosis in the proximal superficial femoral artery is atherosclerosis with or without associated thrombosis. This would not be sufficient to cause the acute ischaemic event on 30 March 2011 which is suggestive of another process such as micro-emboli or more likely progressive atherosclerosis with thrombosis small vessel thrombosis at the foot/calf level, consistent with the findings reported in the second CT angiogram on 2 April 2011 and the angiogram of 12 April 2011.
…
“The atypical presentation, with the time course over several weeks and the intermittent exacerbation of pain is also consistent with multiple microembolic events occurring. In these circumstances, clearing the superficial femoral artery will not be sufficient to overcome the ischaemia due to the occluded small vessels in the foot or calf.”

Although Professor Harris accepted that generally the earlier the intervention is undertaken the better the prognosis, he said that, once there was such a presentation, the amputation rate is still around 10% and the mortality rate is around 13%. I refer to these statistics since they formed part of the basis for Professor Harris’ opinion. However, they cannot, in my view, be used to assess the plaintiff’s chances of retaining her left leg. First, when it was put to Professor Harris by Mr Williams that they could be, he rejected the proposition. Secondly, the cases comprised the basis for the statistics were not analysed. The plaintiff’s situation was that, although the left femoral artery was successfully cleared, she lost her leg because of the accumulation of micro emboli in the smaller arteries distal to the femoral artery, which, though identified, could not be surgically removed. Accordingly, her case may not be comparable with many of the cases on which the statistics were based.

What reasonable care required if lower limb ischaemia had been thought to be present

The experts agreed that if lower limb ischaemia had been thought to be present a practitioner of equivalent training and experience to Dr Burgman would refer the patient to a vascular surgeon or a public hospital with a vascular surgical service for assessment and management. Symptoms that suggest acute or severe arterial occlusion such as rest pain, colour change, foot swelling and changes in sensation require urgent referral. However patients with symptoms due to arterial disease such as a compromised pulse but without evidence of acute occlusion can be investigated and managed less urgently.

Liability: alleged negligence in the consultations on 14 and 22 March 2011

The plaintiff’s case, as refined during the hearing, was as follows.

Reasonable care required Dr Burgman to test the plaintiff’s dorsalis pedis pulses on 14 March 2011 by reason of her clinical presentation and in order to exclude arterial ischaemia and she failed to do so.

Reasonable care required Dr Burgman to test the plaintiff’s dorsal pedis pulses on 22 March 2011 because the plaintiff told her that she had tingling, or pins and needles in her left foot and Dr Burgman failed to do so;

If Dr Burgman had tested the pulses on either or both of these two occasions, she would have noted that the left pulse was compromised as compared with the right;

The finding in (3) would have led a reasonably competent practitioner to refer the plaintiff to the local hospital, Tweed Hospital; and

Had she been referred, her left leg would have been subjected to an angiogram and ultrasound and her leg would have been saved.

The defendant’s response was, in summary:

Dr Burgman was obliged to test the plaintiff’s pulses on 14 March 2011 in order to confirm or exclude arterial ischaemia. She tested them and found them to be normal.

Dr Burgman did not test the pulses on 22 March 2011 because there was no clinical reason for her to do so and she had not been told that the plaintiff had tingling and pins and needles in her left foot.

Had Dr Burgman referred the plaintiff to a vascular surgeon or to Tweed Hospital on 14 or 22 March 2011 she would have been advised to control the pain with oral medication if possible and return for treatment at an outpatient clinic or, if there was a deterioration, to go to the Emergency Department.

In that event, she would have returned to the hospital at about the time she was in fact referred to the hospital by Dr Follent and she would have been treated at Gold Coast Hospital on about 30 March 2011 in any event.

At whatever time the plaintiff was treated after 14 March 2011, it is unlikely that her leg could have been saved since the problem which made the amputation necessary was not amenable to surgery.

Findings on liability

Whether Dr Burgman was negligent

Dr Burgman owed a duty of care to the plaintiff to take reasonable care. In the present case, the duty required her to take reasonable care in the two consultations, 14 March 2011 and 22 March 2011. Having regard to the expert evidence set out above, Dr Burgman owed a duty to the plaintiff on 14 March 2011 to consider arterial ischaemia, among other diagnoses. In order to confirm or exclude that diagnosis she was required to take the plaintiff’s dorsalis pedis pulse. If the pulse was abnormal, she would not, in the exercise of reasonable care, have been able to exclude that diagnosis without further investigation, which would have required her to refer the plaintiff to a vascular surgeon or an out-patient clinic. However, if the pulse was normal, she was justified in excluding that diagnosis and proceeding, as she did, to an alternative diagnosis of infection for which the prescription of antibiotics was appropriate.
The plaintiff submitted that Dr Burgman did not turn her mind to the possibility of atherosclerosis in the left leg on 14 March 2011. As will be apparent from the factual findings set out above, I reject the submission. Atherosclerosis, or arterial ischaemia, was one of the diagnoses which Dr Burgman considered on 14 March 2011, along with venous thrombosis, gout, infection and inflammation. She excluded it by testing the posterior tibial and dorsalis pedis pulses, in accordance with her usual practice and finding them to be normal.
For the reasons given above, I do not consider that, once it is accepted that the pulses could have been normal on 14 March 2011, the chances of the pulses being normal ought incline me not to accept Dr Burgman’s evidence of her usual practice. I do not regard the plaintiff’s reference to Fox v Percy [2003] HCA 22; 214 CLR 118 as apposite.
The plaintiff also relied on the absence in Dr Burgman’s clinical notes of the pulses having been taken as evidence that they had not been taken. The absence of a record of an event in a business record can be evidence that the event did not occur if there is evidence that such events were, as a matter of course, recorded: s 69(4) of the Evidence Act 1995 (NSW). However, this is not the present case. Dr Burgman’s evidence, which I accept, was that it was her usual practice when she suspected arterial ischaemia (as she did in the present case) to take the pulses but not to record the results unless they were abnormal or if she thought that a normal pulse was of particular clinical significance, having regard to the presentation. I do not regard her recording of a normal calf symptom as a basis for not accepting her explanation for not recording the normal pulses. I accept her explanation that she recorded the findings regarding the calf, which she palpated, either to confirm or exclude venous ischaemia, because she regarded it as a significant finding because she considered the symptoms to be more suggestive of venous ischaemia than arterial ischaemia. Her evidence and her note conformed to her evidence as to her usual practice, to which I am satisfied that she adhered on 14 March 2011: Connor v Blacktown District Hospital [1971] 1 NSWLR 713 at 721 per Asprey JA.

Further, the evidence established that the usual practice adopted by Dr Burgman of not recording every normal finding was widely accepted among general practitioner and therefore would not give rise to a liability in negligence even if it were relied on as a particular of negligence: s 5O of the Civil Liability Act 2002 (NSW).
The experts agreed that, as long as Dr Burgman checked the pulses on 14 March 2011 (and I find that she did), it was not reasonably necessary for her to do so again on 22 March 2011, in light of the clinical presentation, which tended to corroborate the diagnosis of infection and the fact that the plaintiff, as I have found, did not complain of tingling or pins and needles. Accordingly the plaintiff has failed to establish that Dr Burgman was negligent on either 14 or 22 March 2011.
For the reasons given above, the plaintiff has failed to establish a breach of duty by Dr Burgman since I am satisfied that Dr Burgman considered arterio-ischaemia and reasonably rejected it after having taken the plaintiff’s dorsalis pedis pulses (on both sides) and found them to be normal on 14 March 2001.

Findings on causation

I am obliged, as trial judge, to make all relevant findings of fact. Accordingly, although I have found that the plaintiff has not established that Dr Burgman was negligent, I am required to consider causation. Such consideration must be made on the basis that, contrary to the facts as I have found them to be, I accept the plaintiff’s case that Dr Burgman failed to take the plaintiff’s pulses on 14 March 2011 and that, if she had taken them, she would have found the left pulse to be absent or compromised.
The plaintiff must establish that “but for” the negligence (which is assumed for the purposes of fact finding) of Dr Burgman, she would not have lost her leg: s 5D(1) of the Civil Liability Act. The plaintiff bears the onus of proof on the balance of probabilities of any fact relevant to the issue of causation: s 5E of the Civil Liability Act.
In order to determine this question I take all the other facts as I have found them to be: namely that, apart from redness, there was no colour change to the plaintiff’s foot, no change in the temperature of the foot and no rest pain. In this event, I consider that Dr Burgman would have been obliged, on the basis of a compromised left pulse, or pulses, to refer the plaintiff to a vascular surgeon or to an out-patient clinic at a public hospital.
Had Dr Burgman done so, it is likely that the plaintiff would, had she been referred to a vascular surgeon, been obliged to wait for an appointment since her symptoms were not of a type or intensity that would have warranted immediate attention. Had she been referred to a public hospital it is likely that what occurred on 30 March 2011 when she was referred to Tweed Hospital by Dr Follent, would have occurred. She would have been subjected to an ultrasound, which would, probably, have detected some degree of stenosis in the left proximal femoral artery. Whether the degree of stenosis which was found on 30 March 2011, 75%, would also have been found on 14 March 2011, is not able to be determined, but on the assumption that it was, it is likely that she would have been told to attend a clinic at Gold Coast Hospital and to control the pain in the interim with oral painkillers.
On this hypothesis, when she attended the outpatient clinic at Gold Coast Hospital some days after 14 March 2011, her symptoms would have improved (as they did after the consultation with Dr Burgman on 14 March 2011). It is questionable whether her case would have been accorded any particular priority in these circumstances. Even had she been subjected to an ultrasound and CT scan soon after 14 March 2011, and had the left femoral embolectomy, which was in fact performed on 31 March 2011, been performed as early as 17 March 2011 (two weeks earlier than it actually was), it is still difficult to conclude that she would have been able to retain her left leg. The difficulty that arises is that the left femoral artery embolectomy, while it removed one problem, did not remove the other two problems identified by Professor Harris that eventually caused the loss of the left limb: namely the micro-emboli at the foot level or the progressive atherosclerosis with small vessel thrombosis in the calf. The left femoral embolectomy could be undertaken and the blockage cleared because the embolus was large and could be removed; however, the micro-emboli in the foot and the calf could not be surgically removed because of their size. Although the left femoral artery remained patent (open) after the embolectomy, the plaintiff still lost her leg.
I accept Dr Hardman’s opinion that, as a general proposition, the earlier the diagnosis, the better the chance of a good outcome. However, it does not follow that, in the circumstances of the present case, the period of a fortnight from the earliest time she might have had the embolectomy to the time she actually had it, made any difference at all.
To the extent to which Dr Hardman expressed an opinion that the plaintiff’s left leg could have been saved by earlier diagnosis, his opinion (which is set out above) was based on an assumption that has not been made out by the evidence: namely, that prior to her original presentation she had no pain in her leg. I accept the truth of the history she gave to Dr Burgman which is recorded in the clinical note that she had suffered pain for 48 hours. Further, as referred to above, I accept Professor Harris’ opinion that the blood flow may be compromised before it is signified by pain.
I accept Professor Harris’ opinion that, even had the plaintiff proceeded to ultrasound and CT scans earlier, one cannot say that her left leg would have been saved. The filling defect in the three arteries of the calf was evident on CT scan from 2 April 2011. Despite several surgical attempts over the ensuing weeks before amputation on 20 April 2011, these arteries were not able to be re-opened to permit normal blood flow. As Professor Harris said:

“Although the outcome may have been more favourable with an earlier diagnosis, this is by no means certain given the lack of success at the Gold Coast with attempted revascularisation due to the small vessel thrombosis demonstrated in the left calf.”

The particular difficulties posed by distal peripheral microembolism, which made amputation necessary in the present case, also make recourse to more general propositions about the benefits of early diagnosis less apposite: see generally, Joe P Chauvapun and Maciej Dryski, “Distal Peripheral Microembolism”, 2005 13(1) Vascular 50-57.
Although I would not infer that the plaintiff had no chance of retaining her leg had she been referred to hospital earlier, the evidence is insufficient for me to assess the value of any chance she had of retaining her leg that the delay of a fortnight caused the plaintiff to lose. Indeed such evidence as there is of the accumulation of microemboli in the foot and the calf would tend to suggest that any chance was speculative and therefore not to be taken into account for the purposes of an award of damages: Malec v JC Hutton Pty Limited [1990] HCA 20; 169 CLR 638 at 642-643 per Deane, Gaudron and McHugh JJ.
Accordingly, even had the plaintiff established that Dr Burgman’s care of her on 14 or 22 March 2011 was negligent (because she failed to detect an abnormality in the dorsalis pedis pulse) I am not satisfied that any such negligence would have caused or contributed to the loss of the plaintiff’s leg.

Findings on credibility

Before I turn to the assessment of damages, which I am obliged as trial judge, to undertake, notwithstanding my finding that Dr Burgman is not liable, I propose to set out the reasons for my assessment of the credibility of the plaintiff, her daughter Anna and Dr Burgman. My assessment of the credibility of the plaintiff and Dr Burgman is relevant to liability; my assessment of the credibility of the plaintiff and Anna is relevant to damages.

The plaintiff’s credibility

My findings of fact set out above as to what occurred at the consultations on 14 and 22 March 2011 largely correspond with the evidence of Dr Burgman and are consistent with her clinical notes. I do not accept the plaintiff’s evidence in material respects, and in particular I do not accept her evidence that Dr Burgman did not take the pulses in her feet on 14 March 2011.
Mr Windsor SC, who appeared with Mr Raftery on behalf of Dr Burgman, relied on a litany of instances where the plaintiff’s recollection had been faulty or wrong. Many of these instances relate to dates and times, or earlier consultations with Dr Burgman. I do not regard these matters as reflecting adversely on the plaintiff’s honesty or reliability. I have, however, formed an adverse view of the plaintiff’s credibility which is principally based on the matters referred to below (which were also relied upon by Mr Windsor) but also generally on the plaintiff’s preparedness to give self-serving evidence and to understate her capacity.
At some time prior to 23 June 2011 the plaintiff contacted her former solicitors, Carroll and O’Dea, who asked her to reduce to writing what had occurred and what she sought by way of remedy. She made a statement in which she set out her narrative of what had occurred and sent it to her solicitors, who received it on 23 June 2011. The plaintiff’s version in her initial statement was follows:

“I had to see Burgman on 7th march as I had an extremely sore left foot. I was in a lot of pain, could not put any weight on it at all. My foot was burning hot on the inside, and was grey and cold to touch. My big toe and second toe had less colour than the rest of my foot and the top of my foot had purple and red blotches. Burgman said that it looks alright to me, she also said that she was not sure what was wrong. She said it could be a bite of some sort or some kind of infection. There was no bite mark. Burgman then prescribed me antibiotics and said to come back in a week’s time. The pain went away but there was a tingling sensation in my foot. My foot was not feeling right. I went back a week later and Burgman prescribed another lot of antibiotics. I could walk on my foot but it still wasn’t back to normal. It was now grey in colour with purple and red blotches on the foot.
I asked Burgman if it could be a blood clot because both my mother and grandmother had suffered from blood clots. Burgman said it was not common to get blood clots in the foot and said it would be unlikely. Burgman told me to continue with the antibiotics and to come back in a week’s time. This was the second time Burgman had misdiagnosed my foot.”

Apart from getting the dates wrong, which I regard as an understandable error which does not substantially detract from her credibility, I am satisfied that the plaintiff described symptoms that did not appear until weeks later (late March and early April) and attributed them to her presentation in the two consultations with Dr Burgman in order to enhance her prospects of success in any eventual proceedings. There is a substantial disparity between the plaintiff’s version of about 23 June 2011 to her solicitors (set out above) and what Dr Follent reported to Dr Doctor at Tweed Hospital in his letter of referral dated 30 March 2011 which is extracted above.
Had the plaintiff actually suffered from the symptoms that she recorded in the statement to her solicitors, I am satisfied that she would have complained to Dr Follent about them when she saw him on 29 March 2011 and he would have recorded them in the referral letter on 30 March 2011. Although the plaintiff’s statement received by her solicitors on 23 June 2011 can be taken to have been created when the events were fresh in her memory, much had occurred in the interim: her condition had become significantly worse; her symptoms, which had been diffuse, became unequivocally referable to atherosclerosis; she had had several operations which had resulted in the amputation of her left lower limb; she faced the prospect of having to bear all of this within her limited financial resources unless she could obtain compensation for what had occurred; and she had decided to engage solicitors with a view to claiming damages from Dr Burgman.
The plaintiff’s evidence was that her sense of grievance was caused, or at least fuelled, when the Vascular Registrar who saw her at Gold Coast Hospital “shook his head in disbelief and said, ‘This shouldn’t have happened’”. This phrase is picked up in the plaintiff’s initial statement which is extracted further below.
After the plaintiff heard the Registrar’s reaction to her predicament, she began thinking further about her visits to Dr Burgman and the Tranexamic Acid with which she had been prescribed. My impression of the plaintiff was that she had decided at an early stage that someone was to blame for what had occurred and wanted to obtain damages to salve the undoubted distress and anguish she has suffered as a result of the loss of her left leg. As Dr Follent was the medical practitioner who had referred her to hospital, the plaintiff directed her attention to Dr Burgman, who had seen her earlier that month and who had not made the diagnosis that eventually emerged as the correct one.
The plaintiff’s preparedness to blame Dr Burgman before she had obtained any legal or expert medical advice and her need, and desire, for financial compensation are evident from the following passage from her statement received by her solicitors on 23 June 2011 (before she had had any meeting with them):

“Conclusion
The blood clots in my leg and foot should not have occurred, thus resulting in amputation. This should not have happened. Burgman misdiagnosed my case by first saying it was an insect bite (even though there was no bite or mark on my foot). She then thought it to be an infection and then she said she didn’t know what was wrong and gave me more antibiotics. I should have had an ultra sound of my foot and leg when I first saw Burgman about my sore foot because I had all the symptoms of lack of blood flow to my foot, and also Burgman was aware that I had a family history of blood clots which I had previously told her.
When I was prescribed primulut [sic] N I Should have been placed on blood thinners, also when I was prescribed tranexamic acid tablets as well I should of [sic] definitely been prescribed blood thinners.
Burgman and Sails [the intern at Murwillumbah Hospital] should have asked if I had a family history of clots, instead I physically told Burgman this information which she failed to take note of. . . .
My husband is a disability pensioner and I am his carer. My life is now very difficult and full of pain. My husband and I have great difficulty in paying for pain medication and all my other medical costs. …”

In a subsequent statement prepared in consultation with her solicitors and dated 8 December 2011 the plaintiff said, in part, of an aspect of her case that has since been abandoned:

“I understand both of the medications [Primolut N and tranexamic acid, both of which were prescribed by Dr Burgman] have side-effects especially the Tranexamic Acid.
I have done research subsequently and it says that it causes clots particularly in the legs and the heart.”

As the plaintiff was, in 2011, convinced that the loss of her leg had been brought about by a clot that had been caused by a side-effect of tranexamic acid, which Dr Burgman had prescribed, she would have had no particular occasion to consider what had occurred in the consultations of 14 and 22 March 2011 or, if she did, to recall them accurately rather than through the prism of litigation. At that time, she would not have appreciated that the allegation that Dr Burgman had not taken her pedal pulses on 14 March 2011 would be the principal matter on which her claim for damages in negligence turned.
In the statement of 8 December 2011, the plaintiff also demonstrated a lack of insight into the factors that predisposed her to atherosclerosis, such as her obesity, hypertension, high cholesterol, previous smoking and family history of blood clotting. Each of these factors was outside Dr Burgman’s control. Those which had been disclosed had been the subject of warning and advice from Dr Burgman who advised the plaintiff at a previous consultation to lose weight and exercise. The plaintiff’s lack of insight into the significance of her underlying health and preparedness to blame Dr Burgman for her predicament is also evident from the following passage:

“I confirm I do not smoke or drink and was pretty healthy prior to this occurring. I was healthy heart-wise and vascular-wise.”

Lord Pearce said in Onassis v Vergottis [1968] 2 Lloyds Rep 403 at 431:

“Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance.”

The following passage from the judgment of McLelland CJ in Eq in Watson v Foxman (1995) 49 NSWLR 315 at 319 is also instructive:

"...human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience."

In my view, these dicta explain why the plaintiff has convinced herself, contrary to the fact, that:

the symptoms she exhibited at the end of March and early April 2011 were evident when she saw Dr Burgman on 14 and 22 March 2011;

the testing of her pulses that was undertaken by Dr Follent on 29 and 30 March 2011 was not undertaken “in the proper way” by Dr Burgman on 14 March 2011;

the consultation with Dr Burgman on 14 March 2011 lasted for no more than five minutes;

she had disclosed to Dr Burgman on 22 March 2011 the family history of blood clots that she disclosed to Dr Fawcett at Tweed Hospital on 30 March 2011; and

she had complained to Dr Burgman of pins and needles on 22 March 2011.

I am prepared to accept that the plaintiff’s evidence as to these matters and other matters germane to the consultations with Dr Burgman involved a subconscious reconstruction of events, which made her evidence unreliable but not dishonest. However, I consider that her evidence as to damages (which is addressed further below) falls into a different category. In my view, the plaintiff deliberately overstated her incapacity in her oral evidence since she appreciated the economic ramifications of conceding her true capacity. There was a relatively lengthy adjournment before she was re-examined. In her re-examination she showed what appeared to me to be an even greater appreciation of the forensic consequences of her answers.

The credibility of the plaintiff’s daughter, Anna Smythe

Ms Smythe gave evidence that she had assisted her mother “every day” since she had been discharged from hospital. She admitted that it was her intention to give the Court the impression that she looked after her mother constantly from the time she was discharged from hospital until the present day. She was, in my view, acutely aware of the forensic imperative of establishing a continuing need for care at a substantial level. When Mr Windsor cross-examined her about the periods for which she had been absent, either because she had been travelling in Europe in 2012 or working in the ski fields in Australia in 2013, she was indignant about her unqualified statements being challenged and accused him of making her feel “uncomfortable”. I did not find her to be a reliable witness. Although I accept that her motive was to help her mother, this explains but does not excuse her preparedness to give a misleading picture in her evidence. I do not accept her evidence except where it is corroborated or is not in the interests of her mother’s case.

Dr Burgman’s credibility

I am satisfied that Dr Burgman had some recollection of the consultations with the plaintiff and that her notes refreshed what recollection she had. In March 2011 she was a busy general practitioner. However, she learned in April 2011 from the plaintiff’s daughter-in-law that the plaintiff was in Gold Coast Hospital and that there was also a possibility of an amputation. She had also received a copy of the discharge summary from Tweed Hospital. Accordingly, within a relatively short time after the two consultations, she revisited her notes and reflected on the consultations. I am satisfied, in these circumstances, that she retained a greater recollection of those two consultations than of the many others she had in the same and intervening period.
Dr Burgman gave her evidence in a straightforward way and did not appear to be defensive. She took issue with some of the questions asked of her by Mr Williams, particularly where she appeared to consider that they contained a false premise. I did not regard this as manifesting any disinclination to answer the questions asked of her, but rather a desire to make sure that her evidence was clear.

Damages

Factual findings

Notwithstanding my findings on liability I am obliged to make findings on damages and to assess damages. I do not propose to indicate a judgment sum if liability had been established. The quantum of any such judgment would also depend on a discount for the value of the loss of the plaintiff’s chance to retain her left leg, which I have found to be speculative and therefore of no value. However my findings will be sufficient to enable a calculation of damages (before any discount to reflect the value, if any, of the loss of a chance) to be performed if required.
The plaintiff is almost 55 years old. She has a life expectancy of 33.46 years. The relevant 5% multiplier for 33 years is 855.7.
She is married and has three adult children, Richard, Thomas and Anna. She lives with her husband at Kingscliff, a coastal town in northern New South Wales near the Queensland border. Her husband has Hepatitis C and suffers from severe bouts of depression and panic attacks. At times he is unable to do domestic duties because of the depression, but the occasions on which this occurs are irregular and unpredictable. He can attend to his own self-care. Until recently, Anna lived with her parents at Kingscliff but she has recently moved out of home to live at Banora Point.
After the below-knee amputation of her left leg on 20 April 2011, the plaintiff was discharged on 2 May 2011 to Murwillumbah District Hospital for rehabilitation. During the course of her time there, she was given weekend leave to see if she was ready to go home permanently. Her home was also assessed for its suitability. By the time she was discharged home in mid-May 2011 to rental accommodation she was able to shower and toilet herself and move around in a wheelchair. At that time both her husband and Anna lived at home. About a fortnight after her discharge she returned to hospital to be fitted with a prosthesis and to learn to walk with it. She received about six to eight weeks training in the use of a prosthesis. Since the fitting of the prosthesis she has been able to drive an automatic car without difficulty, although the family car is presently a manual one. The cost of conversion from manual to automatic is in the order of $2,000.
I accept that the process of adjustment to using a prosthesis is a difficult one. Nonetheless I consider that the plaintiff, by December 2013, had become sufficiently accustomed to walking with a prosthesis that she had forgotten that she was wearing one. I accept her admission to this effect to Ms Sacco, psychologist, as truthful.
The plaintiff saw Dr Buckley, a rehabilitation specialist, for the purposes of the proceedings on 18 March 2013. She admitted that she was capable of walking unassisted and did not intimate that she had any difficulty walking. She was, by that time, able to go shopping and hold onto a shopping trolley or use her Canadian crutches. She tended to go shopping for a few things at a time rather than do a “big” shop. She also admitted to Dr Buckley that she was entirely independent in eating, grooming, dressing and toileting. She told Dr Buckley that she removes her artificial leg and “hops” into the shower while holding onto the door until she can sit on her shower stool. I do not accept her evidence that she needed someone to stand by and watch her shower to ensure that she did not fall.
The family subsequently moved to another residence nearby which they rented from June 2013. The plaintiff ultimately admitted that she was able to sweep the kitchen floor. She could take out the rubbish bins and bring in the empty rubbish bins. She was also capable of doing the cooking and attending to meal preparation. She admitted in cross-examination that she was capable of driving an automatic car. She could shop and transfer from her prosthesis to her wheelchair and undertake light household chores. She could hang clothes on a clothes horse.
Although the plaintiff made no claim for loss of earning capacity, she agreed (although only when confronted with an admission to that effect that a therapist, Ms Sacco had noted on 5 December 2013) that she had done some hairdressing, which was her previous occupation before giving it up to look after her husband and support herself on the carer’s pension. Initially she was loath to admit that she did hairdressing for persons other than her contemporaries, but later conceded that she had done some cutting for “old ladies”. The extent to which she did this is not particularly significant but that she was prepared to do it at all, is some indication that she is able to function in a social environment and able to stand for a period on her prosthesis.
The plaintiff refused to admit that she had been able to walk around the block with Ms Beaver who had come to the plaintiff’s home to assess her needs and capacity for the purposes of the proceedings. Ms Beaver said, and I accept, that the plaintiff had been able to walk for a period of 20 minutes and, during that time, had negotiated the kerb and gutter without apparent difficulty.

Assessment of non-economic loss

The plaintiff has suffered very considerable pain and trauma arising from the amputation of her leg. However, she has become accustomed to the prosthesis and is stable and mobile when wearing it. She was not particularly physically active before the amputation and, accordingly, she is still able to participate in most of the activities in which she engaged before the loss of her leg. Her pleasures are, and were, relatively sedentary: socialising with friends over a cup of coffee; spending time with her grandchildren, watching DVDs and television and going shopping. Although she suffers from phantom pain, or has done in the past, she no longer takes pain relief. She became socially withdrawn for an initial period but I am satisfied that she has regained her confidence and the ability to engage with others socially.
The psychiatrists, Dr Brown and Dr Gertler, who prepared a joint report after a conclave, agreed that she had suffered an adjustment disorder with a depressive mood but that her prognosis was good and was likely to resolve within 12 months of 2013. Dr Brown considered, and Dr Gertler agreed, that the notion that the amputation could have been prevented is likely to have been a factor in the plaintiff’s residual depression in 2013. This can be expected to resolve after the litigation has been concluded.
I assess her non-economic loss pursuant to s 16 of the Civil Liability Act at $286,100 being 40% of a most extreme case.

Past out of pocket expenses

These have been agreed at $78,558.81.

Future out of pocket expenses

The plaintiff claimed damages referable to her future need for medication: Panadol and Cymbalta. I am not satisfied that there is any ongoing need for pain relief. The plaintiff’s past ingestion of pain relief medication has led to addiction, which she has managed to overcome. As for Cymbalta, which is an anti-depressant, the joint conclave of psychiatrists (Drs Brown and Gertler) did not assess the plaintiff before recommending an amount for anti-depressants. The plaintiff is not presently taking anti-depressants. I do not consider that it is reasonable to make an allowance for them. To the extent to which she needed them following the amputation, I am satisfied that the need has passed.
The rehabilitation experts (Dr Buckley and Professor Jones) agreed that the plaintiff would require three prosthetic adjustments per year and would be required to attend a prosthetic rehabilitation clinic two or three times a year. I consider that it would be reasonable to allow for three adjustments (at $185 per session = $555 per year) and two attendances at the clinic per year (at $255 per attendance = $510 per year). The weekly cost is $20, which gives rise to a figure of $14,500 ($20 x 855.7 x .85 (for vicissitudes)).
Dr Buckley and Professor Jones considered that the plaintiff would probably visit a general practitioner four times a year for “management of intercurrent illnesses”. Even were Dr Burgman liable in negligence for the amputation, she is not liable for the plaintiff’s many underlying health problems which cause her to attend a general practitioner. In my view it is reasonable to allow for two consultations with a general practitioner per year at a cost of $200 per year, or approximately $4 per week, giving a lump sum figure in the order of $3,400, less vicissitudes of 15%, giving a total in the order of $3,000.
Dr Buckley’s evidence was that the plaintiff would require minor plastic surgery on her stump every five years and two significant stump reconstruction procedures during her lifetime. Professor Jones did not consider there to be any clinically assessable reason for the plaintiff to require surgery. Almost four years have passed since the amputation. The plaintiff has not undergone revision surgery. There is no evidence that she will require surgery in the near future. In these circumstances I do not consider any allowance is reasonably required.
I am not persuaded that there is any need to make an allowance for attendances on either a vascular surgeon, a physiotherapist or an occupational therapist. Since the plaintiff was discharged from Murwillumbah Hospital in May 2011 she has not seen a vascular surgeon. Although she had assistance from physiotherapists while she was undergoing rehabilitation, there is no evidence of any continuing, or recent, need for one to be consulted.
There was agreement between Professor Jones and Dr Buckley that the plaintiff should have an ICEROSS socket (which will need to be replaced every three years) and an energy conservative foot and ankle device. The cost of the prosthetic device recommended by the experts is $38,975.
The defendant raised the issue whether this was reasonable in light of the fact that the plaintiff’s current (and only prosthesis) was purchased for the sum of $3,541.80 and has not been replaced since it was provided about four years ago. The experts agreed that the fit of the plaintiff’s current prosthesis was good and that the stump was in good condition. At the plaintiff’s request, I examined her stump in court in the course of the hearing. My inspection gave me no grounds to disagree with the assessment of the condition of the plaintiff’s stump made by Dr Buckley and Professor Jones. Although the plaintiff appears to be able to manage well on her present prosthesis which has not been replaced, I accept the unanimous view of the experts that it is reasonable for her to have the superior version and to have the socket replaced every three years, since their views were not substantially challenged by other evidence. Nor were they cross-examined.
The cost of the new, superior prosthesis is ($38,975.40 divided by 3 divided by 52) $250 per week. The capital sum is therefore in the order of $180,000 ($250 x 855.7 x .85) if calculated on this basis as opposed to working out separate figures for the cost using different multipliers for each three year replacement. The plaintiff’s figure, using the latter method, is $199,680. The defendant’s figure (subject to the reasonableness argument, which I have rejected) was $181,721.55. I would allow $200,000.
Dr Buckley considered that it was reasonable for the plaintiff to have a waterproof prosthesis as well but I agree with Professor Jones that it is not, having regard to the plaintiff’s lifestyle, reasonably required. She is able to shower adequately without a prosthesis, using a shower stool. She has not established any realistic prospect that she would use a waterproof prosthesis for any regular recreational activity.
The plaintiff claimed an amount for equipment, including a claim for a replacement wheelchair and for her manual motor vehicle to be converted to an automatic. I am satisfied that an award of $6,000 for the future is reasonable to make allowance for such items, which include brooms and dusters and other household items. I disallow the claim for joggers and sandshoes, since these are usual items that would have been purchased in any event.

Past domestic care

The assessment of damages for this head is particularly difficult because of the contradictory evidence given by the plaintiff and also her daughter, whose evidence I do not accept except where it is corroborated or amounts to a statement against interest. Notwithstanding the plaintiff’s exorbitant claim for domestic assistance, it became clear during Mr Windsor’s cross-examination of the plaintiff and her daughter that she has managed to care for herself, and at times her husband when he has been disabled by depression, for some years since the amputation after the original period of adjustment to the prosthesis.
At times, her husband has been able to care for her and it appears from the following history recorded by Dr Brown, whom the plaintiff saw at the request of the defendant’s solicitors in August 2013:

“Although she described her husband as initially being emotionally “devastated” by her loss of leg, Mrs Smythe said that he has since “stepped up” and tries to help her as much as possible. In addition to driving her to appointments, Mrs Smythe [said] that they now both share various household chores and cooking as part of “pulling together” to get things done.”

The picture of the plaintiff needing daily care and attention from Anna was disproved when it emerged that Anna had been away for at least a month in 2012 and four months in 2013. There was no reliable evidence that anyone, apart from the Home Care Service of NSW for two hours a fortnight, had been required to assist during these periods during which Anna was absent. Although the plaintiff’s two sons were present at various times, their presence did not appear to be related to any need to care for their mother. Rather their presence appeared to coincide with their own need for alternative accommodation at various unstated times. The plaintiff’s evidence about her need for care is redolent with inconsistencies. Neither the plaintiff nor Anna was prepared to disclose precisely when Anna moved out, even though it was apparently only a fortnight before she gave her evidence in the proceedings.
Without credible lay evidence no proper comparison can be made between what members of the family would have done in any event but for the amputation and what they are now required to do because of it. The assessment of damages for care is, for this reason, peculiarly dependent on lay evidence. It can reasonably take precedence over expert evidence where it is reliable and credible: see Coles Supermarkets Australia Pty Limited v Haleluka [2012] NSWCA 343 at [54]-[55] per Allsop P (Campbell and Meagher JJA agreeing). Because of the unreliability of the plaintiff and her daughter Anna, and the fact that Mr Smythe or the plaintiff’s two sons were not called, no proper foundation for the quantification of damages for care has been laid down in the lay evidence. The expert occupational therapists, Ms Beaver and Mrs Tchan, met in conclave and prepared a joint report. While the report, and their individual reports are of assistance and have been taken into account, their opinions are, to a large extent, based on a version of her needs given by the plaintiff herself, which I have rejected.
Nonetheless I accept that it must have been difficult, at the outset, for the plaintiff to adjust to self-care and household tasks with, at first, a wheelchair, and crutches, and later, with the benefit of a prosthesis. I accept that the plaintiff has fallen twice since her leg was amputated but both falls have occurred from the wheelchair rather than through any loss of balance involving the prosthesis. She has had no falls when walking or standing on the prosthesis and none at all since 2012.
I accept that Anna did more than she might otherwise have done, at least until she went to Europe in 2012. I accept the defendant’s figures for past care which are based on Ms Beaver’s calculations in the joint report and take account of a need for care up until Anna went to Europe in 2012. This gives rise to a figure for past care of $16,500.
Home Care has provided services to the plaintiff for one or two hours a fortnight since the plaintiff’s discharge from Murwillumbah. The cost of the provision of this commercial care for the past is included in the agreed amount for out of pocket expenses.

Future domestic care

As my findings set out above indicate, I am satisfied that the plaintiff is independent in self-care and can do all necessary household tasks apart from heavy physical tasks for which allowance is made in the award for commercial care. I am not satisfied that there has been a need for domestic care which meets the statutory threshold of 6 hours a week after about mid-2012. I accept that it is reasonable to make allowance for the services provided by Home Care at a cost of $21.10 per hour and a half per week. On this basis I allow $15,500 (taking account of 15% for vicissitudes).

Claim under s 15B of the Civil Liability Act on the basis that the plaintiff is unable to care for her husband

I am not satisfied that the amputation has affected, except for the limited period of her hospitalisation, the plaintiff’s capacity to care for her husband. The care she has provided has included getting medication for him, providing a bucket for him if he is nauseous and laying out his clothes for him to dress himself, when depression compromises his ability to decide what to wear or motivate himself to dress. In any event the care provided does not meet the statutory threshold: s 15B(2)(c) of the Civil Liability Act.

Orders

I make the following orders:

Judgment for the defendant.

Subject to an application for a different order being made within 7 days hereof, order the plaintiff to pay the defendant’s costs of the proceedings.

**********

Decision last updated: 25 March 2015

Medium Neutral Citation:	Smythe v Burgman (No 2) [2015] NSWSC 298
Hearing dates:	10, 11, 12, 13 and 14 March 2015
Decision date:	25 March 2015
Jurisdiction:	Common Law
Before:	Adamson J
Decision:	1. Judgment for the defendant. 2. Subject to an application for a different order being made within 7 days hereof, order the plaintiff to pay the defendant’s costs of the proceedings.
Catchwords:	TORTS – alleged medical negligence resulting in amputation of leg – whether general practitioner ought to have diagnosed arterial ischaemia notwithstanding atypical presentation – relevance of subsequent detection of abnormal pulses to determination whether defendant checked pulses and found them to be normal at first examination – whether amputation would or could have been avoided if ischaemia diagnosed at first examination – insufficient evidence to assess the value of chance of avoiding amputation if earlier diagnosis made CREDIBILITY OF WITNESSES – evidence of usual practice – inferences from clinical notes – importance of timing of versions given by plaintiff compared with contemporaneous business records
Legislation Cited:	Civil Liability Act 2002 (NSW), ss 5D(1), 5E, 5O, 15B(2)(c), 16 Evidence Act 1995 (NSW), s 69(4) Health Practitioner (NSW) Regulation 2010, Sch 2, cll 1, 2
Cases Cited:	Coles Supermarkets Australia Pty Limited v Haleluka [2012] NSWCA 343 Connor v Blacktown District Hospital [1971] 1 NSWLR 713 Fox v Percy [2003] HCA 22; 214 CLR 118 Malec v JC Hutton Pty Limited [1990] HCA 20; 169 CLR 638 Onassis v Vergottis [1968] 2 Lloyds Rep 403 R v GK [2001] NSWCCA 413 Smythe v Burgman [2015] NSWSC 150 Watson v Foxman (1995) 49 NSWLR 315
Texts Cited:	Justice D Hodgson, “The Scales of Justice: Probability and Proof in Legal Fact-finding” (1995) 69 ALJR 731 Joe P Chauvapun and Maciej Dryski, “Distal Peripheral Microembolism” 2005 13(1) Vascular 50
Category:	Principal judgment
Parties:	Lynne Smythe (Plaintiff) Dr Zoe Burgman (Defendant)
Representation:	Counsel: M Williams SC/CK Hickey (Plaintiff) M Windsor SC/J Raftery (Defendant) Solicitors:
File Number(s):	2012/370062

Doctor	Party by whom called	Specialty
Dr Kelly	Plaintiff	General Practitioner
Dr Hardman	Plaintiff	Vascular surgeon
Dr Walker	Defendant	Specialist in General Practice
Dr Dunkely	Defendant	Haematologist
Professor Harris	Defendant	Vascular surgeon