South Metropolitan Health Service v Westcott
[2016] WASCA 225
•20/12/16
SOUTH METROPOLITAN HEALTH SERVICE -v- WESTCOTT [2016] WASCA 225
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASCA 225 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:163/2015 | 14 NOVEMBER 2016 | |
| Coram: | NEWNES JA MURPHY JA BEECH J | 20/12/16 | |
| 51 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed | ||
| B | |||
| PDF Version |
| Parties: | SOUTH METROPOLITAN HEALTH SERVICE DARREN MARK WESTCOTT |
Catchwords: | Professional negligence Medical practitioners for whose conduct hospital liable Whether breach of duty Allegation of negligent delay in diagnosis of appendicitis and surgical intervention Radiologist Interpretation of CT scans of lower abdomen Whether evidence supported finding that radiologist misreported CT imaging Colorectal surgeon Correct diagnosis of sigmoid colitis involving indication of conservative management Whether evidence supported finding that colorectal surgeon was negligent in not operating earlier for alleged possible appendicitis Professional negligence Medical practitioners Causation Whether evidence supported finding that incisional hernias and certain other abdominal injuries caused by delayed surgical intervention |
Legislation: | Nil |
Case References: | Falkingham v Hoffmans (a firm) [2014] WASCA 140; (2014) 46 WAR 510 Miller v Jennings [1954] HCA 65; (1954) 92 CLR 190 Planet Fisheries Proprietary Limited v La Rosa [1968] HCA 62; (1968) 119 CLR 118 Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479 Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434 Westcott v Minister for Health [2015] WADC 122 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : SOUTH METROPOLITAN HEALTH SERVICE
- -v- WESTCOTT [2016] WASCA 225
- MURPHY JA
BEECH J
- Appellant
AND
DARREN MARK WESTCOTT
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : MCCANN DCJ
Citation : WESTCOTT -v- MINISTER FOR HEALTH [2015] WADC 122
File No : CIV 1834 of 2012
Catchwords:
Professional negligence - Medical practitioners for whose conduct hospital liable - Whether breach of duty - Allegation of negligent delay in diagnosis of appendicitis and surgical intervention - Radiologist - Interpretation of CT scans of lower abdomen - Whether evidence supported finding that radiologist misreported CT imaging - Colorectal surgeon - Correct diagnosis of sigmoid colitis involving indication of conservative management - Whether evidence supported finding that colorectal surgeon was negligent in not operating earlier for alleged possible appendicitis
Professional negligence - Medical practitioners - Causation - Whether evidence supported finding that incisional hernias and certain other abdominal injuries caused by delayed surgical intervention
Legislation:
Nil
Result:
Appeal allowed
Category: B
Representation:
Counsel:
Appellant : Mr P D Quinlan SC & Mr C S Bydder
Respondent : Mr B L Nugawela & Mr R D McCabe
Solicitors:
Appellant : State Solicitor for Western Australia
Respondent : Slater & Gordon Lawyers
Case(s) referred to in judgment(s):
Falkingham v Hoffmans (a firm) [2014] WASCA 140; (2014) 46 WAR 510
Miller v Jennings [1954] HCA 65; (1954) 92 CLR 190
Planet Fisheries Proprietary Limited v La Rosa [1968] HCA 62; (1968) 119 CLR 118
Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479
Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434
Westcott v Minister for Health [2015] WADC 122
Table of contents
Introduction 5
Anatomical matters 6
The abdominal cavity and the relevant organs 6
Diverticulitis 7
Appendicitis 8
Secondary appendicitis 9
Mr Westcott's appendix and the pelvic abscess on 6 August 2009 9
Background 10
Pre admission 10
31 July 2009 - admission to hospital 10
1 August 2009 12
2 August 2009 13
3 August 2009 13
4 August 2009 14
5 August 2009 15
Inflammatory markers 15
6 August 2009 15
Transfer to Sir Charles Gairdner Hospital and post 6 August 2009 16
The expert evidence 17
The primary judge's findings in relation to breach of duty 22
What the CT scans showed - the radiology 22
The position of Dr Lisewski, the general surgeon 23
The position of Dr Krieser, the radiologist 24
The position of Dr Lau, the colorectal surgeon 26
The judge's findings on causation 27
Observations on the judge's approach to the legal issues 29
The grounds of appeal and the parties' arguments 30
The grounds of appeal 30
The appellant's arguments 31
The arguments on behalf of Mr Westcott 33
Disposition 37
Ground 1 37
Ground 2 41
Ground 3 43
Ground 4 49
Conclusion 51
- REASONS OF THE COURT:
Introduction
1 This is an appeal against the decision of McCann DCJ in Westcott v Minister for Health1(primary reasons). That decision concerned a claim for damages for personal injuries by the respondent (Mr Westcott). Mr Westcott alleged that his injuries were caused by negligent care that he received when he was a patient at Fremantle Hospital between 31 July 2009 and 6 August 2009. It was common ground that the appellant owed Mr Westcott a non-delegable duty to exercise reasonable care and skill in the provision of diagnostic and treatment services at the hospital, and that the appellant was vicariously liable for the negligence of the hospital staff. For convenience, the appellant in the remainder of these reasons will be referred to as 'the hospital'.
2 In the primary proceedings, Mr Westcott alleged, in effect,2 that the hospital was negligent by:
(a) failing to diagnose appendicitis on his admission on 31 July 2009;
(b) incorrectly interpreting the CT scans of Mr Westcott's abdomen on 31 July 2009;
(c) failing to take account of all his symptoms, which would have led to an early diagnosis of appendicitis;
(d) failing to perform a laparoscopy or laparotomy in the period 1 - 3 August 2009, which would have allowed for Mr Westcott's appendicitis to be diagnosed;
(e) failing to settle any clinical doubts about the diagnosis, including by failing to perform a laparoscopy and/or laparotomy prior to 6 August 2009;
(f) delaying treatment of and failing to drain an appendiceal abscess in the period 31 July 2009 to 6 August 2009; and
(g) delaying surgical treatment until 6 August 2009.
3 Mr Westcott alleged that the hospital's omissions resulted in a delay in his treatment for appendicitis and the drainage of his pelvic abscess, as a result of which he suffered physical and psychiatric injury.
4 Mr Westcott led expert medical evidence to the effect that, on his admission to the hospital, a working diagnosis, or at least a differential diagnosis, of appendicitis should have been made, and he should have been urgently assessed by a laparoscopy.3 The hospital led expert evidence to the effect that the CT scans showed diverticulitis which, in the circumstances, was appropriately treated conservatively. On the hospital's case, it was only when Mr Westcott deteriorated rapidly on 6 August 2009, that surgical intervention was called for.4 On that day, Mr Westcott underwent a laparoscopy, laparotomy, colonoscopy and appendectomy.5
5 In general terms, the judge rejected the medical evidence adduced by Mr Westcott, and accepted that the CT scans showed diverticulitis of the sigmoid colon. He found that the inflammation of Mr Westcott's appendix was external and secondary to diverticulitis.6 Nevertheless, the judge found that the hospital was negligent in the radiologist not referring to the inflammation of the appendix in his report, and in the senior colorectal registrar (a colorectal surgeon) not operating on him for appendicitis on 3 August 2009.
6 At this point, in order better to understand the judge's reasons and the issues in the appeal, it is convenient to set out the relevant underlying anatomical features and conditions of the organs in the abdominal cavity and the intestinal system. It is also then convenient to set out the judge's findings as to the state of Mr Westcott's appendix, and his pelvic abscess, as objectively found in and following the surgery which was undertaken on 6 August 2009.7
Anatomical matters
The abdominal cavity and the relevant organs
7 The abdominal cavity contains certain organs including the intestines. The area in the lower side of the abdominal cavity (on the left and right sides of a person) is called the iliac fossa(s).
8 The intestines comprise the small and large intestines, or bowels. The small intestine lies within the space encompassed by the large intestine. The large intestine includes the ascending colon, the transverse colon, descending colon and the sigmoid colon, all of which are sections of the colon/large intestine. The sigmoid colon at one point becomes the rectum. The sigmoid colon is on a person's left side, ie, in the left iliac fossa.
9 Food passes from the stomach, via the duodenum into the small intestine. The food is ingested in the small intestine. Waste is then passed into the large intestine.
10 The small intestine is connected to the large intestine by the ileum and cecum in the right iliac fossa. The waste leaves the small intestine through the ileum and into the cecum of the large intestine. The waste then passes through the ascending colon, the transverse colon, the descending colon, the sigmoid colon and into the rectum.
11 The appendix is an out-pouching of the base of the cecum. The appendix is a hollow organ. The interior void or tunnel of a hollow organ such as the appendix is called the lumen. In cross-section (from inside to out) there is the lumen, the mucosa or mucosal lining, the muscle layer (muscularis propria) and finally the organ's outer lining (serosa). The appendix is on a person's right side, ie, in the right iliac fossa.
12 The colon is also a hollow organ. A diverticulum is an abnormal out-pouching of the colon. It occurs where there is a weakness in the muscle wall of the colon. The diverticulum creates a communication between the lumen (void) and serosa (outer lining of the organ). Diverticulosis is the condition of having one or more diverticula. They are ordinarily benign and asymptomatic.
Diverticulitis
13 The diverticula may, however, become inflamed. The inflammation of the diverticula can sometimes affect a segment of the bowel. The inflammation is not of itself bacterial in nature, and is usually treated conservatively by bowel rest, and settles within four or five days. Despite its aetiology not being bacterial, for reasons not understood, antibiotics have a therapeutic role.
14 The inflammation of the diverticula is called diverticulitis. With diverticulitis, the neck of a diverticulum becomes blocked. This causes pressure on the diverticulum. The increasing pressure causes inflammation and compromises blood flow (ischaemia) in the wall of the diverticulum. The infection attracts the omentum (a fatty apron, being part of the peritoneum, extending over the colon and into the pelvis) towards the diverticulum, and envelops it. If and when the wall of the diverticulum perforates, the perforation is contained by the omentum and does not initially extend into the general peritoneal cavity. However, the bowel contents contained within the omentum generally do become infected by bacteria within 12 to 24 hours, and an abscess develops. An abscess in this regard is a collection of inflammatory fluid (exudate) or pus, which develops its own covering, or wall of fibrinous tissue.
Appendicitis
15 Appendicitis is the inflammation of the appendix. Appendicitis occurs where the lumen (void) of the appendix becomes obstructed. A common cause of the obstruction is faecaliths (small 'stones' formed over time around a nidus of faecal material within the lumen). Other causes include the enlargement of lymphoid tissue within the appendix wall (for example, as caused by Crohn's disease). Less common causes of obstruction include foreign bodies and tumours.
16 Obstruction of the lumen leads to distention (enlargement) of the appendix and the accumulation of intraluminal fluid. This causes ineffective lymphatic and venous drainage. That allows bacteria to invade the wall of the appendix. This can lead to peritonitis (inflammation involving bacterial infection) in a localised point and, ultimately, more generalised peritonitis.
17 If an inflamed appendix becomes gangrenous and eventually perforates, pus and faecal material will then spill into the peritoneal cavity. Prior to rupture of the inflamed appendix, the appendicitis attracts the omentum to the inflamed appendix so that when the appendix ruptures, the leak of bowel contents is contained by the omentum and does not initially extend into the general peritoneal cavity. However, the contained bowel material becomes infected by bacteria from the bowel within 12 to 24 hours. An abscess develops. The abscess itself will eventually leak or rupture into the general peritoneal cavity, usually after several days, leaving the patient critically ill with peritonitis.
18 Acute appendicitis manifests as:
• enlargement of the diameter of the appendix to a diameter greater than 6 mm (approximately 6 mm is the usual internal diameter for an appendix);
• thickened wall with enhancement;
• periappendiceal fat stranding; and
• sometimes, focal thickening of the terminal ileum or cecum.
19 On its own, a mild enlargement of the diameter of the appendix, ie, to a size less than 9 mm, is unlikely to signify appendicitis.
Secondary appendicitis
20 Although the judge found appendicitis to occur when the lumen of the appendix becomes obstructed (see [15] above), it is evident that he accepted that the term 'appendicitis' might also, depending on context, refer to any inflammation of the exterior of the appendix resulting from an inflammatory process developing from adjacent organs. The appendix in that event is 'secondarily inflamed'8 in the language of Professor Little, whose evidence the judge accepted. Professor Mackay, whose evidence the judge also relevantly accepted for present purposes, explained secondary inflammation as follows:9
Secondary inflammation is - any structure which is lying adjacent to the primary source of the inflammatory process becomes inflamed as a consequence or a sequelae to the prime inflammatory process and therefore it is not that organ or that tissue which is the prime source of the inflammation.
21 The judge referred to the secondary inflammation of the appendix as 'secondary appendicitis', and inflammation of the appendix caused by a blockage of the lumen of the appendix or other disease of the appendix as 'primary appendicitis'.10
22 Professor Mackay described a 'periappendiceal abscess' as an abscess where the primary source of the inflammation was the appendix, and a 'paracolic abscess' as an abscess where the primary source of the inflammation was the colon.11
Mr Westcott's appendix and the pelvic abscess on 6 August 2009
23 The judge made the following findings as to the actual state of Mr Westcott's appendix on 6 August 2009:12
(a) the appendix was inflamed, but the inflammation was mainly on the outside;
(b) the mucosal layer appeared intact, and there was no evidence that the appendix was gangrenous, or that there had been a perforation of the appendix; and
(c) these matters indicated an absence of internal obstruction, and the inflammation of the appendix was secondary in its aetiology, ie, attributable to some external cause.
24 The primary aetiology of Mr Westcott's condition was sigmoid colitis, ie, inflammation of the sigmoid colon, caused by sigmoid diverticulitis.13 One of the diverticula had ruptured, which in turn initiated bacterial sepsis within the peritoneal cavity. This bacterial sepsis originating from the sigmoid colon ultimately involved other organs, including the cecum, appendix and ileum.
25 Dr Lau found, at the operation on 6 August 2009,14 an enlarged pus-filled abscess. The abscess lay between the descending colon, sigmoid colon, appendix and the small intestine, from which it had to be dissected.
Background
26 The underlying background facts are not materially in dispute. The following is taken from the judge's findings unless otherwise indicated.
Pre-admission
27 On or about 25 July 2009, Mr Westcott began feeling pain and discomfort in his lower abdomen.15
28 On 29 July 2009, he attended his general practitioner (Dr Spurge) and was prescribed oral antibiotics.16 Mr Westcott was in too much pain to attend work the following day and stayed home.17
31 July 2009 - admission to hospital
29 On the morning of 31 July 2009, Mr Westcott was taken by ambulance to the hospital. He arrived at about 9.49 am and was reviewed by Emergency Department doctors, including an emergency physician (Dr Banham) at 10.44 am.18 Dr Banham made notes to the following effect:19
(1) Mr Westcott described a history of nine days of abdominal pain, which was initially a sharp left-sided stab that progressively got worse. His pain was now generalised, but worse on the left.
(2) He reported alternating bowel habits, being constipated at first but then small amounts of loose stool with mucus but no blood.
(3) On examination, Mr Westcott was:
(a) alert, with a temperature of 38.8°C and a pulse of 130 beats per minute; and
(b) his abdomen was generally tender with guarding and rebound, maximally in the left iliac fossa. The abdomen was consistent with an elevated Body Mass Index. (emphasis added)
31 At 11.06 am, Mr Westcott underwent an abdominal x-ray. The findings were as follows:21
There is slight distention of the transverse colon with some associated oedema of its wall. The reminder of the abdomen is largely gasless and likely reflecting the presence of fluid within bowel loops. A few fluid levels seen on the erect film are also in keeping with this. This is a non-specific appearance. The possibility of diverticulitis, as indicated on the request form, could be further evaluated by means of a CT scan if clinically indicated. (emphasis added)
32 At 1.00 pm, Mr Westcott was reviewed on Dr Banham's request by Dr Finlayson (the surgical registrar).22 Dr Finlayson's clinical impression was possible diverticulitis. The management plan was to refer Mr Westcott for a CT scan, admit him to a general surgical ward under Dr Lisewski (the on-call consultant general surgeon) and continue with conservative management, with the addition of prophylactic anti-coagulant treatment.23
33 At 2.42 pm, Mr Westcott underwent a CT scan.24 The radiologist, Dr Krieser, reported that the images most likely indicated acute diverticulitis complicated by a small pericolic abscess and very small perforation, although sigmoid cancer remained as a differential explanation.25 The CT report is referred to in detail later in these reasons.
34 Mr Westcott was then formally admitted to hospital under the care of Dr Lisewski (a consultant general surgeon). He was put in a specialised ward known as the 'Nurse Specials Unit' (NSU).26
35 At 6.30 pm, Dr Lisewski examined Mr Westcott and reviewed the CT images. He formed a clinical impression of an inflamed sigmoid colon with localised pelvic inflammation, likely due to diverticulitis. He 'pended' a decision on exploratory surgery and ordered the continuation of conservative management with close observation and review.27
36 Over the course of the day on 31 July 2009, between 10.05 am and 9.40 pm, Mr Westcott's temperature fluctuated markedly. It was recorded as 38.3°C (febrile),28 38.1°C (febrile), 35.7°C (afebrile), 37.5°C (afebrile), 37.6°C (febrile), 38.6°C (febrile) and 38.3°C (febrile).29
1 August 2009
37 On 1 August 2009, Mr Westcott underwent further review and remained under observation. A three-step management plan was ordered by Dr Lisewski, namely to stay on clear fluids, continue antibiotics for seven to eight days and undergo an investigative colonoscopy in eight weeks. Mr Westcott was also moved out of the NSU.30
38 Over the course of the day on 1 August 2009, between 4.00 am and 9.00 pm, Mr Westcott's temperature was recorded as 36.9°C (afebrile), 36.8°C (afebrile), 37.2°C (afebrile), 37.4°C (afebrile), 38.6°C (febrile), 37.1°C (afebrile), 37.6°C (febrile), 36.8°C (afebrile), 36.3°C (afebrile), 37°C (afebrile) and 37°C (afebrile).31
2 August 2009
39 On 2 August 2009, Mr Westcott continued to undergo reviews and remained under observation. Dr Lau (the senior colorectal registrar) and Dr Stewart (a resident) attended a ward round at 10.35 am. The judge was not satisfied that Dr Lisewski attended the ward round.32 Dr Lau formed a clinical impression that Mr Westcott was 'improving' and that conservative management should continue, with some mobilisation, physiotherapy and a chest x-ray.33 Microbiology reports indicated the absence of any blood-borne infection.34
40 Over the course of the day on 2 August 2009, between 4.00 am and 10.00 pm, Mr Westcott's temperature was recorded as 36.8°C (afebrile), 36.3°C (afebrile), 37°C (afebrile), 37°C (afebrile), 36.5°C (afebrile) and 37.2°C (afebrile).35
3 August 2009
41 On 3 August 2009, Dr Lisewski completed his on-call session and Dr Makin (a consultant surgeon) and Dr Lau (the senior colorectal registrar) took over responsibility for Mr Westcott.36 Dr Lisewski did not come in for the handover meeting at 7.00 am and it was taken by Dr Finlayson. Dr Stewart's notes, made at 12.05 pm after a review of Mr Westcott's case at a radiology meeting, read:37
Imp:? appendicitis discussed at radiology meeting this am. More likely appendicitis than diverticular disease.
42 At 4.30 pm, Mr Westcott was reviewed by Dr Nazaar (a registrar), with Drs Anderson and Stewart in attendance. Notes to the following effect were made:38
(1) Mr Westcott was 'still drowsy' and complained of mild abdominal pain.
(2) His white blood cell count was 13 and C-reactive protein level was 400.
(3) His observations were stable and afebrile.
(4) On examination, his abdomen was tender to percussion in the right iliac fossa, with guarding.
43 The clinical impression of this review was 'acute appendicitis' and that Mr Westcott needed surgery. A four-step plan was put in place, including fasting and booking an operating theatre.39
44 At 4.45 pm, Dr Stewart (the resident) discussed the plan with Dr Lau (the senior colorectal registrar). Dr Lau, however, ordered continuation of conservative management for the time being, and required Mr Westcott's white blood cell count and temperature to be monitored. An operation would be 'considered' if Mr Westcott became 'unwell'.40 Dr Lau did not re-examine Mr Westcott on this occasion.41
45 Over the course of the day on 3 August 2009, between 4.00 am and 10.00 pm, Mr Westcott's temperature was recorded as 36.8°C (afebrile), 36.2°C (afebrile), 36.3°C (afebrile), 37.2°C (afebrile) and 37.2°C (afebrile).42
46 In relation to 'inflammatory markers', Mr Westcott's white blood cell count had come down to 13 (although still elevated); his neutrophils had dropped to 9.92 (although still elevated); and his C-reactive protein, whilst elevated at a level of 400, had dropped from a high point of 460 on 2 August 2009.
4 August 2009
47 On 4 August 2009, Mr Westcott continued under observation. He was reviewed by Dr Lau at 7.45 am and it was noted that he was 'improving'.43 His observations were 'stable' and he was 'afebrile'.44
48 Over the course of the day on 4 August 2009, Mr Westcott's temperature was recorded as 36.7°C (afebrile), 37.3°C (afebrile), 35.2°C (afebrile), 38°C (febrile) and 37.6°C (afebrile).45
5 August 2009
49 On 5 August 2009, Mr Westcott remained under observation and was noted to be 'doing well' with 'unremarkable' observations.46 The notes also recorded that he was 'much better than yesterday'; and that by 8.20 pm he had 'no complaints of pain'. Over the course of the day on 5 August 2009, between 3.15 am and 11.30 pm, Mr Westcott's temperature was recorded as 37°C (afebrile), 36.8°C (afebrile), 37°C (afebrile) and 38°C (febrile).47
Inflammatory markers
50 In the period from 31 July 2009 up until 5 August 2009, Mr Westcott's 'inflammatory markers' were as follows:48
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6 August 2009
51 On 6 August 2009, at 12.45 am, Mr Westcott was seen by a doctor because his temperature had risen to 38°C. He was noted to be 'obese', and the 'entire lower abdomen was tender on deep palpitation'. On examination, the doctor's clinical impression was of 'worsening appendicitis'.49 The judge's reference to these notes are set out in detail later in these reasons at [168]. The doctor arranged for blood cultures and urine microbiology.
52 At 5.00 am, the doctor discussed Mr Westcott's case with the surgical registrar. They resolved to continue with observation and to review with the surgical team in the morning. At 9.00 am it was noted that Mr Westcott had a febrile episode overnight and was 'feeling worse', although he 'looked okay' and was sitting up in bed.50
53 At 11.00 am, they discussed Mr Westcott's case with Dr Lau (the senior colorectal registrar), who decided to perform a laparoscopy, with a view to proceeding to a laparotomy and appendectomy if necessary. Pre-operatively, one temperature was recorded at 37.6 °C (febrile).51
54 At approximately 8.30 pm, Dr Lau commenced surgery on Mr Westcott.52 Dr Lau performed a laparoscopy, which was converted to a mid-line laparotomy, followed by a colonoscopy and an appendectomy. The entire operation took four and a half hours.53
55 Dr Lau's findings included a thickened and inflamed appendix, the presence of fibrinous exudate within the pelvis, an abscess adjacent to the appendix and sigmoid colon, a thickened sigmoid colon and an erythematous terminal ileum attached to the inflammatory mass in the pelvis.54 The abscess occupied the entire area between the small intestine, terminal ileum, appendix and sigmoid colon, and it was adhering to them.55
56 Mr Westcott suffered acute respiratory complications whilst in the operating theatre.56 He required post-operative intubation and observation in the intensive care unit (ICU).
Transfer to Sir Charles Gairdner Hospital and post 6 August 2009
57 Because an ICU bed was not available at the hospital, Mr Westcott had to be transferred to Sir Charles Gardiner Hospital (SCGH).57
58 While at SCGH, Mr Westcott experienced a complicated recovery and developed pneumonia. He required sedation and drainage of his right lung. He developed pulmonary embolisms and eventually required a tracheostomy.58
59 On 2 September 2009, Mr Westcott was discharged from SCGH, but required further inpatient and outpatient treatment for ongoing complications.59
60 In October 2010, Mr Westcott underwent surgery to repair incisional hernias associated with the laparotomy.60
61 In November 2010, Mr Westcott developed an infection of the October 2010 surgical wound, for which he was hospitalised until 18 January 2011 and again (briefly) in February 2011.61
62 Mr Westcott developed psychiatric complications, including depression and post-traumatic stress disorder (PTSD) arising from when he was conscious in ICU.62 He was able to return to work for some time, however, he has now ceased employment and has not worked since January 2014.63
The expert evidence
63 Mr Westcott called three expert witnesses: Professor Thomson (a radiologist); Associate Professor Raftos (a specialist in emergency medicine); and Professor Toouli (a consultant general surgeon).64
64 Professor Thomson considered that the CT scans of 31 July 2009 indicated appendicitis in the primary sense, including a perforated appendix. He rejected any suggestion of primary diverticular disease, and concluded that the sigmoid colon was only inflamed because it was adjacent to the inflamed appendix.65
65 The judge rejected Professor Thomson's evidence and preferred, instead, the evidence of the hospital's expert radiologist, Professor Little.66
66 Associate Professor Raftos said that the CT scans showed no evidence of diverticulitis, and the hospital should have treated Mr Westcott for a perforated appendix.67 The judge rejected Associate Professor Raftos' evidence on the basis that it was unreliable in various respects,68 and on the basis that he did not have a sound comprehension of all the facts.69
67 Professor Toouli (a consultant general surgeon) was critical of the hospital. His evidence included the following:70
(a) the hospital should have considered the existence of perforated appendicitis;
(b) the hospital's radiologist (Dr Krieser) misunderstood the imaging on the CT scans when he found diverticulitis, as diverticulitis was 'virtually excluded' by the absence of diverticula on the CT scans;
(c) the hospital's radiologist (Dr Krieser) had thereby made a 'clear misdiagnosis' of diverticulitis;
(d) surgery was mandated once a diagnosis, either provisional or primary, was made of 'appendicitis' because of the presence of the pelvic sepsis;
(e) 'given that there was some doubt' regarding the proper diagnosis, Mr Westcott certainly should have undergone a laparoscopy on 1 August 2009, as there was no evidence of clear improvement; and
(f) on the afternoon of 3 August 2009, laparoscopic investigation with possible appendectomy was 'definitely appropriate' and recommended 'because the primary diagnosis had changed to appendicitis which, under the circumstances, necessarily meant "perforated appendicitis" and/or "complicated appendicitis" [and it] did not matter that the [C-reactive protein] levels fell after 2 August (from 460 to 260) because anything above 150 is problematic' and indeed, any level above 100 represented 'a problem'.
68 Professor Toouli testified that Mr Westcott had 'generalised peritonitis' on 1 August 2009,71 and, as far as he was concerned, 'peritonitis in the pelvis was the critical factor'.72
69 The judge found, in effect, that Professor Toouli's evidence could not be relied upon in relation to his criticisms of the hospital's management of Mr Westcott. In regard to the most important shortcomings, the judge said Professor Toouli had never looked at the CT scans; he had placed 'total reliance' on Professor Thomson's report (which the judge rejected); he had relied on Associate Professor Raftos' summary of the medical events, including post-operative complications (which summary was incorrect); and he lacked a sound comprehension of the facts.73 His Honour said that overall, he preferred the evidence of Associate Professor Mackay (the hospital's expert witness in general and colorectal surgery), over that of Professor Toouli, 'in terms of the issues of this specific case'.74
70 The hospital called two expert witnesses - Associate Professor Little (a consultant radiologist) and Associate Professor Mackay (a consultant general and colorectal surgeon).
71 Professor Little's evidence included evidence to the effect that the CT scans indicated:75
(a) the presence of an inflammatory process within the pelvis;
(b) the appendix was on the periphery of the inflammatory process;
(c) the epicentre of the inflammatory process was the sigmoid mesentery and sigmoid colon;
(d) the presence of a small focus of fluid, adjacent to the right lateral aspect of the sigmoid colon, the margins of which were ill-defined, suggesting that it had not evolved into a 'focal constrained fluid collection', ie, an abscess;
(e) the appendix was mildly dilated, but there was no evidence of appendicolith (calcified stones);
(f) the absence of any obstruction in the entrance to the lumen of the appendix and the absence of any inflammation of the orifice of the appendix;
(g) a very thick-walled segment of the sigmoid colon;
(h) the presence of up to five diverticula in the sigmoid colon; and
(i) that Mr Westcott had presented with sigmoid colitis most probably caused by diverticular disease involving a micro-perforation of a diverticulum.76
72 His Honour noted that Professor Little said:77
(iii) The specific features favouring sigmoid colitis are:
(a) There is circumferential thickening of the sigmoid colon with associated eccentric luminal narrowing.
(b) The inflammatory change is focused more within the sigmoid mesentery with the sigmoid colon at its epicentre.
(c) While it's clear the appendix is inflamed, the degree of inflammation with the sigmoid mesenteric fat and surrounding the sigmoid colon is out of proportion to the mild increase in the trans-serosal diameter of the appendix, which measures approximately 8 – 9 mm which is only just above the normal trans-serosal diameter of 6 mm.
(d) The appendix is well seen precisely because the retroperitoneal fat surrounding it is not profusely inflamed, which would be unusual if the appendix was the cause of this degree of pelvic inflammation.
(e) Focal fluid, which is yet to organise into a formal collection is within the sigmoid mesentery as adjacent to the inflamed sigmoid colon, rather than immediately surrounding the appendix.
74 Professor Mackay's evidence included evidence to the effect that:79
(a) the appendix had an unblocked lumen and healthy mucoid matter;
(b) the cecum was secondarily inflamed;
(c) the sigmoid colon was at the epicentre of the inflammatory process; and
(d) the primary pathology was diverticulitis.
75 The judge observed that Professor Mackay said that:80
a perforated sigmoid colon must be resected and will not accept suturing, because the lesion might re-perforate (ts 678). A resection is a significant procedure – hence the attraction of conservative management in a case in which appendicitis is thought to be secondary to the perforated colon. (emphasis added)
76 The judge noted the following evidence of Professor Mackay:81
Delayed presentation usually means that pathology has progressed … as in this case it progressed … both before admission and after admission. So when a patient presents delayed … [b]ut the clinical features don't demand immediate surgical operative intervention … a CT … would be the major investigation which would influence a surgeon in deciding whether it was reasonable to proceed with conservative non-operative or whether operative management was still necessary. So there are two factors there. One is: can we achieve a resolution of the pathology with just conservative management alone – antibiotics and so forth – and that would be of importance in a patient with significant co-morbidity. That's the diabetic chronic renal failure, respiratory failure and so on – which … is not necessarily a common scenario … . However … we would abandon management if the patient deteriorated clinically … which is primarily the findings in the abdomen, on examination, plus the systemic features – temperature, pulse, blood pressure and so on – none of which demanded immediate cessation of conservative management [in Mr Westcott's case]. (emphasis added)
77 The judge also noted the following evidence of Professor Mackay:82
[I]n his opinion a diagnosis of possible appendicitis with clinical features of inflammation would not constitute a mandatory indication to surgical intervention (ts 705). Nor was surgical intervention warranted where the diagnosis was diverticulitis because the initial management of that disease needed to be conservative (ts 715). (original emphasis)
The primary judge's findings in relation to breach of duty
What the CT scans showed - the radiology
78 As noted above, as between the two radiologists, the judge preferred the evidence of Professor Little over Professor Thomson. The judge summarised the difference between the two as follows:83
To summarise the issue between the experts, Professor Thomson said that the primary pathology was centred in the region of the cecum, appendix and terminal ileum and made a diagnosis of appendicitis with no significant involvement of the sigmoid colon at all. He favoured an immediate laparotomy. On the other hand, in Associate Professor Little's opinion the pathology was focused on the sigmoid colon with a diagnosis of sigmoid colitis and secondary appendicitis. He favoured conservative management and an elective colonoscopy later. (emphasis added)
79 The judge said 'I confidently prefer Associate Professor Little's opinion to that of Professor Thomson'.84
80 The judge also accepted that Professor Mackay was experienced and qualified in the interpretation of colorectal scans.85
81 The judge accepted the evidence of Professors Little and Mackay that the CT scans showed that the sigmoid colon was extensively inflamed and surrounded by fat stranding, and that there were a small number of diverticula. He also found that the CT scans showed inflammation of the serosa (outer lining) of the appendix, the inner part of the serosa of the cecum and terminal ileum, and that there was a small amount of fluid in the right para-colic gutter.
82 His Honour accepted that the CT images supported a finding that the inflammation of the appendix was external and secondary in nature.86 He found that the CT scans, properly understood, 'excluded' a primary inflammation of the appendix.87
83 The judge said that Professor Little's opinion supported the radiologist's (Dr Krieser's) assessment that the evolving abdominal collection was not sufficiently organised to be drained percutaneously (via needle puncture through the skin) because of the risk that placing a needle could disperse the fluid and spread the infection. Professor Little's opinions explained and supported Dr Lisewski's conservative management plan.88
84 The judge also accepted that part of Professor Mackay's evidence which was to the effect that conservative management was reasonable up to the radiology meeting on 3 August 2009 (although he did not accept his evidence that it continued to be reasonable after 3 August 2009).89
85 The judge added:90
As it happens, whilst it is not relevant to liability (which cannot be judged with hindsight), the interpretations of Associate Professors Little and Mackay were eventually borne out by the histopathology which disclosed that there was no relevant internal pathology of the appendix, as they reported.
86 One final matter may be noticed, for completeness, about the judge's reasons in relation to the CT scans, although neither party drew attention to it or suggested that it had any significance. Despite accepting the evidence of Professor Little and Professor Mackay that the imaging supported a finding that the inflammation of the appendix was external and secondary in nature,91 and that a primary inflammation of the appendix was excluded by the CT scans,92 the judge said, in conjunction with an earlier reference to not accepting Professor Thomson's opinion, that 'in any event this is not a case in which it is possible to be categoric about the radiological interpretation'.93 What his Honour meant by this, and in particular by the word 'categoric', is unclear. Nevertheless, it is clear that his Honour considered that the better or preferable interpretation of the CT scans was that given by Professor Little and Professor Mackay. Indeed, his Honour emphasised his acceptance of Professor Little's views by saying that he 'confidently' accepted the evidence of Professor Little over Professor Thomson.
The position of Dr Lisewski, the general surgeon
87 Dr Lisewski was the general surgeon under whose care Mr Westcott was admitted on 31 July 2009. The judge found that he had not been negligent in his conservative treatment of Mr Westcott. Amongst other things, his Honour found:
(a) Dr Lisewski had examined for himself the CT scans, but he had only viewed the left side (the sigmoid colon side) and not the right side (the appendix side), and that the right-sided images 'would not have been visible whilst he was examining the imaging of the left side';94
(b) it was reasonable for Dr Lisewski to focus on the left-hand side of the CT scans because the radiologist's report 'positively foreclosed' the prospect of any pathology extending beyond the area of the sigmoid colon;95 and
(c) Dr Lisewski was reasonably entitled to believe, on the information he had on 1 - 2 August 2009, that he was dealing with a complicated case of diverticulitis or sigmoid colon cancer, for which conservative treatment is usually mandated in the first place.96
The position of Dr Krieser, the radiologist
88 The judge was critical of the radiologist's reporting of the CT scans, as is apparent from his consideration of Dr Lisewski's position.
89 The radiologist, Dr Krieser, reported on the imaging in the following terms:97
There is an approximately 7 cm segment of thickened distal sigmoid with prominent surrounding inflammatory stranding and a small 2.3 cm pericolic collection of its right margin. There are also 2 tiny locules of free intraperitoneal gas. Several mildly enlarged lymph nodes are seen in the adjacent mesentery and there are multiple enlarged retroperiotoneal nodes. The appearances most likely represent acute diverticulitis complicated by small pericolic abscess and very small perforation. However, no gas filled diverticula have been outlined within the colon. A sigmoid neoplasm [ie, cancer] remains a differential.
There is a small amount of free ascetic fluid within the pelvis but no large collection is present for drainage.
The small bowel and remaining colon are unremarkable.
The liver, spleen, pancreas, kidneys and adrenal glands are satisfactory in appearance.
Mild/bibasal atelectasis noted. (emphasis added)
90 Dr Krieser's comment in his report was as follows:98
Approximately 7 cm segment of thickened distal sigmoid with prominent surrounding inflammatory change, small pericolic abscess and very small perforation (2 small free gas locules). Acute diverticulitis is most likely although no diverticular have been outlined on this study. Sigmoid neoplasis [cancer] remains a differential. (emphasis added)
91 The judge addressed the question of the radiologist's negligence by asking whether he should have reported, specifically, that there was external inflammation of the appendix. In that regard, the judge said:99
[Dr Krieser] evidently examined all the scans in the same way as the experts. His findings predicate that he examined the whole peritoneal cavity. Amongst other things, in his report he drew attention to the 'prominent surrounding inflammatory stranding', the 'two tiny locules of free intraperitoneal gas' and the enlarged lymph nodes in a number of places. Having reported on the sigmoid colon, he pointed out that a number of other viscera were 'unremarkable' or 'satisfactory' including 'the small bowel and remaining colon' (ie the ascending, transverse and descending colons). (original emphasis)
In my view this necessarily implied that he had examined the appendix and it too was 'unremarkable' or 'satisfactory'. (emphasis added)
So, a surgeon reading the report could justifiably believe that he was only dealing with sigmoid colitis of inconclusive aetiology for which an urgent laparoscopy was unnecessary, given that any form of surgical treatment (such as a resection) would be a last resort (see [293]). (original emphasis)
92 The judge added (without reference to any particular evidence) that '[a]ll of the experts said that the right-sided pathology should have been reported'.100
93 The judge concluded that Dr Krieser's reporting 'fell below the widely accepted standards of radiological practice of the time', and that Dr Krieser was negligent for failing 'to accurately report the right-sided imaging'.101 The judge said that the report was 'misleading'.102
The position of Dr Lau, the colorectal surgeon
94 Dr Lau was the colorectal surgeon with 'direct management' of Mr Westcott's case in the period 3 to 6 August 2009.103 In relation to Dr Lau's decision-making on 3 and 4 August 2009, his Honour said:104
(xiv) [On Monday, 3 August 2009] … [Dr Lau] was not persuaded by Dr Nazaar's findings on examination nor by the inflammatory markers and was more influenced by the fact that [Mr Westcott] was afebrile and not 'unwell'. Dr Lau would not have dissented from Dr Nazaar's assessment lightly, but he evidently remained of the same opinion as he had on the Sunday and Monday mornings. He regarded [Mr Westcott's] temperature and general well-being to be more relevant than other matters (including the markers of inflammation).
(xv) (Tuesday, 4 August). Dr Lau reviewed [Mr Westcott] during a ward round. He believed that [Mr Westcott] was improving because his observations were stable and he was afebrile. But in Dr Lau's opinion it was still not safe for [Mr Westcott] to be discharged and he had to be kept on clear fluids. He planned for [Mr Westcott] to undergo a colonoscopy in six weeks, so I infer that he still felt that sigmoid colitis was yet to be excluded as the primary diagnosis. He accepted that appendicitis was a possible diagnosis, as evidenced by his view that an interval appendectomy would be necessary if disease of the sigmoid colon was excluded. Overall, it must be inferred that he felt that the sepsis was under control, emergency surgery was not mandated and the prognosis was good. (emphasis added)
95 The reference to 'interval appendectomy' was not explained by the judge in his reasons, however, it was the subject of undisputed evidence. In certain circumstances, a faecolith may obstruct the lumen of the appendix so that the appendix starts to become inflamed, and then 'drop out' so that the inflammation then recedes. A faecolith may then re-enter the lumen to obstruct it, and then 'drop out' again. If that happens a few times, an 'interval appendectomy' may be carried out to remove the appendix before it causes future problems.105
96 The judge nevertheless found that Dr Lau was negligent in failing to operate on Mr Westcott on 3 August 2009 because:106
(a) the 'likelihood' that Mr Westcott had 'appendicitis' had 'emerged' on the morning of 3 August 2009 from the radiology meeting, and there were also serology reports then available;
(b) on the morning of 3 August 2009 'appendicitis' became the 'working diagnosis';
(c) by 4.30 pm on 3 August 2009 there was clinical evidence of acute 'appendicitis' in the form of right-sided pain;
(d) Mr Westcott was not getting any better on 3 August 2009;
(e) Mr Westcott had had an abdominal sepsis for about a week, and the continuance of conservative management could not be 'justified'. It did not matter whether the appendicitis was primary or secondary, the appendix 'had to be removed' and the sepsis drained; and
(f) the judge was satisfied that Dr Lau's decision-making was not in keeping with widely accepted standards of colorectal surgeons in 2009.
The judge's findings on causation
97 In relation to the issue of causation, the judge first found that Dr Krieser's negligent reporting caused surgery to be delayed from the morning of Sunday 2 August 2009 or, in the alternative, Dr Lau's negligence caused surgery to be delayed from the morning of Monday 3 August 2009 (or the afternoon of that day at the very latest).107 His Honour found that:108
Dr Lisewski would not have asked for a second opinion and would have conducted surgery on the morning of Sunday 2 August [2009] if he had known of the complete radiological picture. Certainly, he would not have waited once that morning’s serology results arrived (showing that all three inflammatory markers had risen since Saturday and were worse than Friday).
It follows from my finding that Dr Lau should have operated on 3 August [2009] that surgery would otherwise have taken place.
98 His Honour then went on to make findings as to what happened because of the delay. He did so under four sub-issues: what procedure would have been performed, what would have been found, what would have been done about it and what happened because it was not done. In respect to the first three sub-issues, his Honour found as follows:109
(a) the procedure that would have been performed as a starting point was a laparoscopy;
(b) laparoscopically evidence would have been found of inflammation of the exterior of the appendix and the sigmoid colon, and the inner aspects of the terminal ileum and cecum, although the surgeon would have been unable to distinguish between sigmoid colitis and appendicitis as the primary pathology; and
(c) a thorough examination of the entire pelvic region on 2 or 3 August 2009, including an external examination of the sigmoid colon for evidence of leaking air (insufflated during a probable colonoscopy), the drainage of septic and purulent matter and the removal of the appendix would probably need to be undertaken by laparotomy.
99 In respect to the fourth sub-issue, the judge was satisfied that there was a sufficient evidentiary basis to conclude that there was a causal connection between the delay in treating Mr Westcott's sepsis and his respiratory failure.110
100 His Honour went on to also find that Mr Westcott's general abdominal post-operative pain, his shooting (or colicky) pains in the right iliac fossa, his need for hernia surgery and the subsequent wound infections, abdominal neuropathy and awkward abdominal feelings, were all caused by the hospital's negligence.111
101 On the issue of damages, the judge found that as a result of his illness Mr Westcott became withdrawn, negative, depressed and reclusive and did not engage in any of the leisure or other pleasure-related activities that he previously enjoyed.112 His intimate relationship with his wife suffered, as did his ability to work.113 Damages were accordingly awarded under various heads, totalling $893,187.28 plus interest of $40,357.59.114
Observations on the judge's approach to the legal issues
102 The judge had observed that Mr Westcott's claims were subject to the operation of the Civil Liability Act 2002 (WA) (the Act). His Honour referred to s 5B of the Act (the general provision dealing, in effect, with breach of duty) and s 5PB of the Act.
103 Section 5PB of the Act relevantly provides:
(1) An act or omission of a health professional is not a negligent act or omission if it is in accordance with a practice that, at the time of the act or omission, is widely accepted by the health professional’s peers as competent professional practice.
…
(3) Subsection (1) applies even if another practice that is widely accepted by the health professional’s peers as competent professional practice differs from or conflicts with the practice in accordance with which the health professional acted or omitted to do something.
(4) Nothing in subsection (1) prevents a health professional from being liable for negligence if the practice in accordance with which the health professional acted or omitted to do something is, in the circumstances of the particular case, so unreasonable that no reasonable health professional in the health professional’s position could have acted or omitted to do something in accordance with that practice.
(5) A practice does not have to be universally accepted as competent professional practice to be considered widely accepted as competent professional practice.
(6) In determining liability for damages for harm caused by the fault of a health professional, the plaintiff always bears the onus of proving, on the balance of probabilities, that the applicable standard of care (whether under this section or any other law) was breached by the defendant.
104 The judge appears to have proceeded on the basis that in order to succeed in his claims, the onus was on Mr Westcott to prove, relevantly (in accordance with the standard in s 5PB(1) of the Act), that Dr Krieser's conduct fell well below the widely accepted competent professional practice of radiologists in 2009,115 and that Dr Lau's conduct was not in keeping with the widely accepted competent professional practice of colorectal surgeons in 2009.116
105 Senior counsel for the hospital submitted that his Honour's approach in this regard was correct.117 Counsel for Mr Westcott effectively agreed, or at least did not contend that it was incorrect.118 Counsel for Mr Westcott did not seek to rely on s 5PB(4) of the Act. Nor was there a notice of contention on behalf of Mr Westcott more generally to the effect that the judge's findings on breach should be upheld in any event, even if, on the appeal, it was shown that the judge erred in finding that the conduct of each of Dr Krieser and Dr Lau was not in accordance with the widely accepted competent professional practice of their respective peers at the time.
106 In the reasons which follow, we will proceed (without deciding any point of statutory construction) on the basis adopted by the primary judge and the parties in this appeal. We would, however, add the following observation as to the position even if s 5PB of the Act had no application. In the fields of CT imaging, and of colorectal diagnosis and treatment, at least in this case, a finding that persons in the circumstances of Dr Krieser and Dr Lau failed to exercise reasonable care could not reasonably be made without some basis for that conclusion in the expert evidence, accepted by the judge, concerning the competent professional practice of practitioners in those fields at the relevant time. See Rogers v Whitaker;119Rosenberg v Percival.120 As explained later in these reasons, the judge's findings were not underpinned by such evidence in this case.
The grounds of appeal and the parties' arguments
The grounds of appeal
107 There are four grounds of appeal.
108 The first ground of appeal alleges, in effect, that the judge erred in finding that Dr Krieser, the radiologist, was negligent in reporting on the CT scans on 31 July 2009.
109 The second ground of appeal alleges that the judge erred in finding121 that Dr Krieser's CT report caused surgery to be delayed from 2 August 2009, on the basis that Dr Lisewski would have conducted surgery on 2 August 2009 if he had known of the 'complete radiological picture'.
110 The third ground of appeal alleges that the judge erred in finding122 that the continuation of conservative management was not justified on 3 August 2009, and that Dr Lau's decision-making was not in keeping with widely accepted standards of colorectal surgeons in 2009.
111 The fourth ground of appeal alleges, in effect, that the judge erred in finding123 that the timing of the respondent's laparotomy caused the development of the respondent's abdominal complications (pain, incisional hernias and wound infection).
The appellant's arguments
112 As a preliminary observation, the hospital observed that Mr Westcott's case at trial was run on the basis that Mr Westcott presented with appendicitis in its primary form, and that the hospital had misdiagnosed his condition as sigmoid diverticulitis. The hospital referred in this regard to the oral opening made by counsel for Mr Westcott at trial.124 The hospital further submitted that the grounds of appeal must be considered in light of the proper aetiology of Mr Westcott's condition, and 'the undisputed finding that [Mr Westcott] did not have, and the CT scan of 31 July 2009 (properly understood) did not reveal, primary appendicitis'.125
113 In relation to ground 1, it submitted that it was not open to the judge to conclude, in light of the expert evidence at trial, that the reporting of the CT scan fell below the widely accepted standards of radiological practice at the time.126 The hospital submits that Dr Krieser's report of the CT scan was correct, and that he correctly identified the primary cause of Mr Westcott's condition, as sigmoid colitis caused by sigmoid diverticulitis.127
114 In relation to ground 2, the hospital submits that, on the judge's primary findings (based on the evidence of Professor Little and Professor Mackay), a reasonable report of the CT scan would not have reported primary appendicitis or a perforated appendix.128 Notwithstanding the primary findings, his honour said ([368(v)]):
In my opinion it is very improbable that [Dr Lisewski] would have [sought an opinion from the colorectal unit] and/or continued with conservative management if he had been aware of the right-sided CT pathology, remembering that he would have regarded himself as potentially dealing with a perforated appendix which had already set sepsis and secondary sigmoid colitis in train. (emphasis added)
115 Accordingly, the hospital submitted the judge's finding as to Dr Lisewski's decision-making was premised on him acting on the basis of an incorrect and wrong interpretation of the CT scan.129 The hospital submits that his Honour ought to have found that:130
(a) an accurate report of the CT scan, while it would have referred to the pathology surrounding the appendix, would not have suggested that the appendix was perforated;
(b) such a report would have suggested, as Dr Krieser's report in fact did, that the CT scan showed sigmoid colitis as the primary pathology (the inflammation of the appendix being a secondary feature); and
c) the relevant question, for the purposes of causation, was what Dr Lisewski would have done in light of a report in those terms.
116 In relation to ground 3, the hospital submits that the finding that Mr Westcott would have undergone surgery on 3 August 2009 follows directly from the finding of Dr Lau's negligence in continuing conservative management, and is wholly dependent upon it.131 In relation to 'accepted standards', it submitted that the only evidence upon which the judge could have acted was that of Professor Mackay.132 While his Honour stated that he did not accept Professor Mackay's evidence as to conservative treatment after 3 August 2009, he did not make any positive finding as to the evidence that he did accept as to the appropriate standard to be applied (or what those standards were).133 Further, the hospital submits that his Honour, in effect, drew conclusions not grounded in the evidence, or misconstrued the evidence.134
117 In relation to ground 4, the hospital submits that, in effect, there was no evidence to support the judge's findings as to causation of residual abdominal symptoms by the delay in surgery.135 It contends that the judge found that a laparotomy would have been required in any event; the complications experienced by Mr Westcott were well known complications of abdominal inflammations and infections, and consequential surgery; and there was no evidence of anything unusual about Mr Westcott's laparotomy on 6 August 2009. It further contends that the judge's finding was based solely on a conclusion that the incisional hernias which subsequently developed, were caused by the large in situ drains which, according to his Honour, would not have been required had the surgery taken place on 2 or 3 August 2009. The hospital submits that there was no evidence to support such a finding.136
The arguments on behalf of Mr Westcott
118 By way of preliminary observations, it was argued on behalf of Mr Westcott that it was significant that Dr Lau and Dr Krieser had not been called as witnesses, and that the judge regarded Dr Lisewski's evidence as a reconstruction, which was very unreliable at times.137 Counsel also submitted that it was significant that the judge had found that the primary diagnosis had changed to primary appendicitis on 3 August 2009. It was further submitted that the judge's findings of fact were effectively based on concessions in cross-examination made by Professor Little and Professor Mackay.
119 In relation to ground 1, Mr Westcott's submissions relied on three principal propositions:
(a) the CT report's reference to 'prominent surrounding inflammatory change' would not be read as extending to the appendix, given, in particular, that there are other anatomical structures in the region;
(b) in cross-examination, Professor Little said (ts 333, 341 - 343) that the CT scan was 'under reported' and thereby misleading; and
(c) the failure by the cross-examiner to put to Professor Little the actual report of Dr Krieser, did not alter the significance of the concession by Professor Little that Dr Krieser had 'under reported' the CT scan by failing to mention the inflamed appendix.
120 Counsel submitted that the reporting of the CT scans should have stated 'surrounding inflammation including of the appendix' (emphasis added).138
121 Reliance was also placed on Professor Mackay's evidence at page 716 of the trial transcript.
122 In relation to ground 2, it was submitted that had the secondary inflammation of the appendix been expressly mentioned in the reporting of the CT scans, this 'would have likely resulted in' early operative treatment because it would have signified a 'possible' or 'potential' perforation of the appendix.139 The submissions in this regard referred to:
(a) the judge's findings on causation ([373] - [374]) to the effect that:
(i) it was 'common ground' that the standard treatment in 2009 for appendicitis, with the appendix possibly perforated, with a developing abscess, was an appendectomy and drainage; and
(ii) any surgeon performing surgery on Mr Westcott on 2 or 3 August 2009 would not have been able to distinguish between sigmoid colitis and appendicitis as the primary pathology;
(b) the finding, referred to earlier, that had the 'right sided' imaging been reported, Dr Lisewski 'would have regarded himself as potentially dealing with a perforated appendix' with sepsis and secondary colitis ([368(v)]); and
(c) a finding that, on 3 August 2009, Dr Lisewski had not been 'previously aware' of the radiological evidence in support of a potential diagnosis of (primary) appendicitis ([348(xi)]).
123 In relation to ground 3, counsel for Mr Westcott submitted that by 3 August 2009, 'primary appendicitis was not the issue, but rather secondary, extrinsic or complicated appendicitis, with a possible or potential perforation'.140 Reference was made in oral submissions to the evidence of Professor Mackay (trial ts 700 - 701), to the effect that the standard treatment for 'complicated appendicitis' was appendectomy and drainage of an abscess, if there were one. Counsel submitted that by 'complicated appendicitis', Professor Mackay was referring to a secondary inflammation of the appendix, with a contiguous abscess derived from a primary source other than the appendix.141
124 In this regard, counsel also submitted, in effect, that the evidence showed that an abscess created by an alternative source of inflammation (ie, not the appendix itself) which affected the exterior of the appendix, could itself lead to the invasion of the appendix wall and the ultimate perforation of the appendix.142 Counsel submitted that the evidence in support of that proposition was to be found in the evidence of Professor Mackay (trial ts 706 - 707); Professor Thomson (trial ts 477, 481); Professor Little (trial ts 323); Professor Toouli (trial ts 400); and Dr Lisewski (trial ts 619).
125 Counsel also submitted that Mr Westcott's 'rapidly worsening position' meant that something had to be done.143
126 It was also submitted that the evidence was that 'if you're not sure if you have a possibly a perforated appendix you would go in and do a laparoscopy in a deteriorating clinical picture'.144
127 In relation to the clinical significance of the inflammatory markers, counsel referred to Associate Professor Raftos' evidence that a C-reactive protein count of 200 is consistent with an inflammatory process in the abdomen, including appendicitis (trial ts 495).
128 Counsel also relied on the evidence and finding as to localised pain on the right side on 3 August 2009. Counsel also submitted that, against a background of clinical deterioration, the appendix did not have to be actually perforated for surgical intervention to take place. Reference was made to Professor Mackay's evidence (trial ts 716 - 717, 720, 725, 727 - 728, 739).145 Reference was also made to the judge's observation that Professor Mackay had accepted that the finding of a perforated viscus elevated the need for a laparotomy ([323], [359]). Reference was also made to the judge's findings on causation in relation to the development of sepsis ([390(iii) - (iv)]).
129 Counsel contended, in effect, that the error of the hospital's arguments can be demonstrated by the fact that they lead (so it was submitted) to an illogical conclusion. That is that, on the hospital's case, 'no operation should even have occurred on 6 August 2009 because there was never any primary perforation of the appendix'.146
130 Counsel also submitted that the judge found, based on the evidence of Professor Toouli and Professor Mackay, that 'some form of operative intervention (investigatory, therapeutic or both) needed to be high on the list of priorities whether the appendicitis was primary or secondary: [312]'.147
131 Counsel further submitted that Professor Mackay's evidence was that in the case of a possible perforation of a structure, denoted by the presence of 'gas bubbles', a laparoscopy, and perhaps laparotomy, would be the standard treatment in 2009 (trial ts 716 - 717, 724 - 725).148
132 In relation to ground 4, counsel for Mr Westcott submitted that the judge's findings were open. Reference was made, in effect, to the findings that:
(a) Dr Lau closed the incision with two drains in situ, one of which was quite significant in size;149
(b) in 2010, Mr Westcott began to suffer hernias where the large (Blake) drain had been;150 and
(c) Mr Westcott had shooting pains emanating from the area of the Blake drain insertion, and had neuropathy as a consequence of the hernia repair procedure.151
133 Counsel for Mr Westcott also submitted that, in any event, Mr Westcott had other complications arising from the delayed surgery which are not subject to appeal, and the hospital has failed to show that the overall award is unjust or a wholly erroneous estimate of Mr Westcott's loss. In Mr Westcott's written submissions, reference was made in this regard to certain cases dealing with the assessment of damages, including Miller v Jennings152 and Falkingham v Hoffmans (a firm).153 In oral submissions, counsel for Mr Westcott also mentioned Planet Fisheries Proprietary Limited v La Rosa.154 In that case, Barwick CJ, Kitto and Menzies JJ said:155
The principle to be followed in assessing damages is, in our opinion, not in doubt. It is that the amount of damages must be fair and reasonable compensation for the injuries received and the disabilities caused. (emphasis added)
Disposition
134 As a preliminary observation, Mr Westcott's submissions about the absence of evidence from Dr Lau and Dr Krieser, and the judge's criticism of Dr Lisewski's evidence, provide no real assistance in the disposition of this appeal. That is because, in substance, there is no dispute by the hospital in this appeal as to the primary findings of fact concerning the conduct of those doctors. Rather, the hospital's case in this appeal is to the effect that the judge's inferences as to negligence were inconsistent with his primary findings of fact, or were otherwise drawn in the absence of, or at least as a result of a misunderstanding of, relevant expert evidence.
Ground 1
135 The judge found, in effect, that Dr Krieser's reporting of the CT scan fell below widely accepted radiological practice in 2009 in two related ways. First, the judge found that the report implied that the appendix had been 'examined' and was found to be 'satisfactory' or 'unremarkable', and the report was thereby misleading. Secondly, the judge considered that Dr Krieser failed to report accurately on the 'right-sided imaging'. By 'right-sided imaging' his Honour evidently meant, in particular, the secondary inflammation of the appendix.
136 There are a number of difficulties with the judge's findings. First, the report was prepared for the purposes of the treating doctors at the hospital. The judge could not conclude that the report was misleading without having first made a finding about how the report would have been interpreted and understood by the treating doctors at the hospital and, in particular (in relation to the period 31 July 2009 to the morning of 3 August 2009), by Dr Lisewski. In other words, if the issue was whether the report was misleading, the question is not what Dr Krieser intended his report to mean, or what it would convey to a judge as a matter of its ordinary English meaning (as if it were merely a construction exercise), but how it would reasonably have been understood by Dr Lisewski (or at least by a reasonable general surgeon in his position) in all the circumstances. The judge did not address that question.
137 Rather, his Honour appears to have formed the opinion, as a matter of construction of the document,156 that the report necessarily 'implied' that the appendix was 'unremarkable' or 'satisfactory'. His Honour could not, with respect, have read into the report an implied statement that the appendix was 'unremarkable' or 'satisfactory' in the absence of expert evidence that this was its implication to reasonable clinicians responsible for reading and acting upon such a report. That is particularly so where the report referred in terms to a thickened distal sigmoid 'with prominent surrounding inflammatory change', and where the appendix is adjacent to the sigmoid colon.157 Although earlier in his reasons the judge set out Dr Krieser's report in its entirety,158 in making his findings on liability his Honour did not refer to this statement concerning the prominent surrounding inflammatory change.
138 Secondly, it was not put to Dr Lisewski, who gave evidence at trial, that he understood the report to imply that there was no secondary inflammation of the appendix.
139 Thirdly, the import of his Honour's criticism is not, in any event, clear. The appendix was, at least in one sense, 'unremarkable' and 'satisfactory', in that although its exterior was inflamed as a result of it being adjacent to an inflammatory process which had at its epicentre the sigmoid mesentery and sigmoid colon, it was not (on his Honour's findings) the source of the sepsis. Although the appendix was mildly dilated as part of the secondary inflammation, a reasonable radiologist would have known (on his Honour's findings) that there were no stones in it, there was nothing blocking the lumen, there was no inflammation of the orifice of the appendix and it was not gangrenous. The CT imaging, on his Honour's findings, positively excluded a primary inflammation of the appendix. In this context, there was no basis for the judge to conclude, on the evidence, that Dr Krieser's reporting of the CT imaging fell below widely accepted competent professional practice of radiologists in 2009, or was otherwise negligent, in failing to refer specifically to the secondary inflammation of the appendix on the right side of the imaging.
140 Fourthly, the evidence of Professor Little to which counsel for Mr Westcott referred, does not assist Mr Westcott in this regard. The evidence was as follows:159
Can I just ask, is there a third possibility here in that he has both appendicitis and sigmoid colitis? --- Well, in fact he has, of course. It's a matter of what one came first in this particular case.
Would you agree with me that a radiologist who failed to mention any sign of appendicitis or any of the features that you agree support a finding of appendicitis was not an accurate report of the scan? --- It's incomplete. I don't think it's incorrect. (emphasis added)
141 The 'sign of appendicitis' and 'features' to which the cross-examiner referred were:
• the presence of an inflammatory mass 'in the region of the cecum, the appendix and the terminal ileum' (trial ts 338);
• a mildly dilated terminal ileum and cecum (trial ts 338, 340 - 341);
• the tip of the appendix extending to the right superior border of the inflammatory mass (trial ts 339); and
• a mildly dilated appendix (trial ts 341 - 342).
142 However, the cross-examiner did not refer to or put Dr Krieser's report to Professor Little in this exchange, and Professor Little's evidence at this point was plainly not directed to the terms of that report, which included a reference to the distal sigmoid 'with prominent surrounding inflammatory change'.
143 Further this exchange was to be understood in the context of Mr Westcott's case at trial against the hospital in relation to the CT scans. That was that Dr Krieser had 'incorrectly interpreted'160 the CT scans as revealing sigmoid colitis, rather than primary appendicitis. Mr Westcott's case at trial was not that although Dr Krieser was correct to interpret the CT scans as signifying an underlying pathology of sigmoid colitis, he was nevertheless negligent in failing to report that the surrounding inflammation caused by the sigmoid colitis extended to the appendix.
144 It was in that context that the expert radiological evidence took the form that it did. The expert evidence was not directed to whether the report itself misstated the proper interpretation of the relevant CT imaging. Rather, each side obtained radiological expert opinion (Professor Thomson for Mr Westcott and Professor Little for the hospital) to consider and interpret afresh the CT imaging and explain what (in the opinion of the witness) the scans showed about Mr Westcott's pathology. Mr Westcott's case, based on Professor Thomson's opinion, was to the effect that the relevant pathology, ie, the perforated appendix, had been missed by the hospital. Professor Thomson said that he was not asked to, and did not, review the CT report of Dr Krieser for the purposes of his expert report.161 Similarly, Professor Little (whose evidence the judge preferred) said that he had not been provided with a copy of Dr Krieser's report.162 Also, the judge observed that the reports of these two experts, especially that of Professor Little, were 'more lengthy and condescended to details to an extent which … would be regarded as atypical for a routine radiology report'.163 Further, the judge evidently accepted Professor Little's evidence that radiologists 'try and weight [the] report … [and] report the salient findings which are relevant to the [patient's] presentation irrespective of the referral'.164
145 In these circumstances, Professor Little's evidence in cross-examination, to which counsel for Mr Westcott referred, could not be construed as the expression of an opinion by Professor Little that the CT report prepared by Dr Krieser fell below the widely accepted standards of competent radiological practice at the time (or was otherwise negligent). Nor could it be said that this evidence (or the other evidence of Professor Little) supported the proposition that '[a]ll of the experts said that the right-sided pathology should have been reported'.165
146 Counsel for Mr Westcott also relied upon the following evidence in cross-examination of Professor Mackay:166
But we know the original CT scan report didn't mention inflammation of the appendix, do you agree with that? --- No, it doesn't appear in their report, no.
147 As to that evidence, it is true that the report did not mention specifically that the appendix was inflamed. However, that evidence is insufficient to sustain the finding of negligence. On the judge's findings, the CT scans, properly understood, showed an inflammatory mass caused by sigmoid colitis. The scans excluded a primary inflammation of the appendix. There would need to be some foundation in the expert evidence to conclude that the mere failure to refer (expressly) in the report to the secondary inflammation of the appendix, constituted negligence in the reporting of the CT imaging. The observations previously made with respect to Professor Little's evidence also apply here.
148 Ground 1 should be upheld.
Ground 2
149 Ground 2 relates to a question of causation as to what, on the balance of probabilities, Dr Lisewski (the general surgeon) would have done differently had Dr Krieser not provided a 'misleading' report on the CT imaging. The judge's finding was as follows:167
I am satisfied that Dr Lisewski would not have asked for a second opinion and would have conducted surgery on the morning of Sunday 2 August if he had known of the complete radiological picture. Certainly, he would not have waited once that morning's serology results arrived (showing that all three inflammatory markers had risen since Saturday and were worse than Friday). (emphasis added)
150 Ground 2 should also be upheld. First, on the judge's findings, Dr Lisewski had the 'complete radiological picture' in that he had personally reviewed the CT scans, and did not merely rely on the radiologist's reporting of the scans. In this context, the judge's additional finding168 that the right-sided imaging would not have been 'visible' to Dr Lisewski whilst he examined the left side of the imaging has no basis in the evidence. This court was taken to a number of the images in the way in which they were examined in evidence at trial. The relevant images reveal both the left and right side of the abdominal cavity within the one image. It would not be possible, looking at the relevant images, to see the left-hand side while the right-hand side was not visible. Moreover, there was no suggestion along these lines in the cross-examination of Dr Liweski.
151 Secondly, although the judge did not make a finding as to what the CT report should have said so as not to be misleading, presumably (on the judge's reasons), it should not only have referred to acute diverticulitis with a differential diagnosis of cancer of the sigmoid colon, but added a reference to the presence of secondary inflammation of the appendix. As noted earlier, counsel for Mr Westcott contended that Dr Krieser, after referring in his comments to 'prominent surrounding inflammatory change' should have added the words 'including the appendix'. However, even if the imaging had been reported with that addition, the report would still have indicated that the primary diagnosis was sigmoid colitis, and the differential diagnosis was cancer of the sigmoid colon. There was no evidence that a general surgeon acting reasonably would not, in that event, have sought the opinion of the colorectal unit, but would instead have treated it as a case of primary or, possibly primary, appendicitis requiring urgent surgery. Also, the judge did not accept Professor Toouli's evidence which included the proposition that even a differential diagnosis of primary appendicitis should have led a reasonable surgeon in Dr Lisewski's position to undertake urgent surgery, without reference to the colorectal unit. Professor Mackay's evidence was to the contrary - see [75] - [77] above.169 The judge preferred Professor Mackay's evidence and generally accepted it.170
152 Thirdly, it was not put to Dr Lisewski in cross-examination that he would in fact have undertaken surgery had the CT report added, in terms, that there was secondary inflammation of the appendix. Nor was there any basis in the evidence for concluding that had there been mention of a secondary inflammation of the appendix, Dr Lau would have regarded himself as potentially dealing with primary appendicitis, or a perforated appendix. Also, even though it was common ground that standard treatment in 2009 for (primary) appendicitis, with the appendix possibly perforated, was an appendectomy, the CT scans (on the judge's findings) indicated sigmoid colitis and excluded primary inflammation of the appendix. A non-negligent report would have reported accordingly.
153 Fourthly, the only general surgeon whose evidence the judge accepted was Professor Mackay. His Honour accepted Professor Mackay's opinion that on the basis that the CT scans, properly understood, showed diverticulitis of the sigmoid colon, conservative management was reasonable, at least up to 3 August 2009.
154 Fifthly, the judge said that Professor Little's opinions (which the judge accepted) 'both explain[ed] and support[ed] Dr Lisewski's conservative management plan'.171
Ground 3
155 In relation to ground 3, the judge's conclusion that the senior colorectal surgeon, Dr Lau, was negligent, in large measure stems from his finding that on 3 August 2009, the 'working diagnosis' became 'acute appendicitis', following the radiology meeting that morning and in light of evidence of right-sided pain at 4.30 pm that day.172
156 There are a number of difficulties with his Honour's findings as to this 'working diagnosis' on 3 August 2009.
157 First, the relevant 'working diagnosis' was ultimately the diagnosis of the senior person then responsible for the care of Mr Westcott. That person was Dr Lau, the senior colorectal surgeon.173 His 'working diagnosis' remained, as the judge found, sigmoid colitis.174 It was not, with respect, correct to treat the clinical impression, or even diagnosis, of a resident doctor, or Dr Nazaar, as the 'working diagnosis' for the treatment of Mr Westcott on 3 August 2009, when Dr Lau was the senior person responsible for his care. Moreover, on his Honour's findings, Dr Lau was correct in his working diagnosis of sigmoid colitis on 3 August 2009.
158 Secondly, if his Honour meant that appendicitis in the primary sense became the 'working diagnosis', then on his Honour's findings this diagnosis was incorrect. Dr Lau could not be criticised, at least in the absence of credible medical expert evidence to the contrary, for failing to operate (when operations carry inherent risks as explained by Professor Mackay)175 on the basis of a wrong diagnosis, when the correct diagnosis indicated conservative management. The closest that Mr Westcott's expert evidence came to suggesting that it was contrary to widely-accepted medical practice not to operate on 3 August 2009, even if the primary diagnosis was sigmoid colitis, was Professor Toouli's evidence. But Professor Toouli said Mr Westcott had presented with 'peritonitis' on 31 July 2009, and that he had 'generalised peritonitis' on 1 August 2009. The judge did not regard his evidence as reliable.176
159 Thirdly, if his Honour meant that the 'working diagnosis' was 'appendicitis' in the sense of a secondary inflammation of the appendix caused by sigmoid colitis, there was no expert evidence, accepted by the judge, which indicated that Dr Lau's decision on 3 August 2009 to continue conservative management for the time being was contrary to the exercise of reasonable care.
160 The judge gave two other reasons for finding that Dr Lau was negligent.177 One was that even though it was Dr Lau's opinion that surgical intervention was not required if Mr Westcott's condition was not deteriorating, 'the facts were that [he] was not getting better'. However, there was no evidence that surgery was called for in the clinical context at the time, in the absence of any deterioration (his observations were 'stable', he was afebrile and each of the inflammatory markers were down from 2 August 2009), and in light of the CT imaging which, properly understood on his Honour's findings, showed that primary appendicitis was excluded. In that regard, it is to be recalled that his Honour evidently accepted Professor Mackay's evidence (referred to in [76] above) that the CT would be the 'major investigation which would influence a surgeon in deciding whether it was reasonable to proceed with conservative non-operative … management'.178
161 Thus, counsel for Mr Westcott's submission that Mr Westcott's 'rapidly deteriorating position' meant that surgery was required, does not reflect the judge's findings or the evidence.
162 The question of whether to continue conservative management until 6 August 2009 was a matter for clinical judgment in all the circumstances. His Honour appears to have recognised this at least to some extent, when he referred to Dr Lau's decision-making in the terms set out in [94] above. This included Dr Lau having regard to the temperature and general wellbeing of Mr Westcott at that time. Professor Mackay's evidence was consistently to the effect that it was reasonable not to conduct surgery prior to 6 August 2009.179 There was no expert evidence accepted by the judge which indicated that Dr Lau's clinical judgment that Mr Westcott's condition should continue to be treated conservatively for the time being, fell below the widely accepted standards of colorectal surgeons at the time, or otherwise involved a departure from the exercise of reasonable care in the management of Mr Westcott.
163 The other reason given by the judge was that Mr Westcott had abdominal sepsis for about a week which meant that the 'continuation of conservative management could not be justified', and in that regard, '[t]he appendix had to be removed and the sepsis drained'.180 However, on the judge's findings as to what the CT scans showed about the pathology, it was not the appendix which required removal to deal with the source of the sepsis. The judge appears to have accepted that the patient's condition was not deteriorating. In this context, the judge's observations as to Professor Mackay's evidence concerning the difficulties with resection of the colon, and 'the attraction of conservative management in a case in which appendicitis is thought to be secondary to the perforated colon', are pertinent.181
164 The evidence to which counsel for Mr Westcott referred does not support the finding of negligence. Professor Mackay's reference to the surgical treatment of 'complicated appendicitis' (trial ts 700 - 701) and to 'someone with appendicitis, possibly perforated' (trial ts 717), are references to complications of primary appendicitis. The complications include perforation of the appendix, as well as an abscess formed as a result of the primary inflammation of the appendix (periappendiceal abscess). He was not referring to secondary inflammation of the appendix caused by, for example, sigmoid colitis.182
165 Counsel for Mr Westcott also referred to Professor Mackay's evidence at page 725 of the trial transcript:
[Professor Mackay]: [I]f [the treating] surgeon couldn't come to the diagnosis - is unsure of the diagnosis and then decided to operate, then [laparoscopic surgery] was reasonable.
[Counsel]: And indeed, on the assumption that I put to you, that would have been standard treatment in 2009? --- If the surgeon couldn't come to the definitive diagnosis of one or the other, yes.
166 The assumption put to the witness by the cross-examiner was that the surgeon in question had reviewed the CT scans and had formed the view that he could not make a diagnosis as to whether Mr Westcott had (primary) appendicitis, sigmoid colitis, or both. However, on his Honour's findings, that assumption was incorrect, as his Honour found that the CT scans, properly understood, revealed sigmoid colitis and excluded primary appendicitis.
167 Counsel for Mr Westcott also referred to Professor Mackay's evidence at pages 727 - 728 of the trial transcript to the effect that the inflammatory markers indicated significant inflammation in the pelvis for a week, and that it was reasonable, having regard to the overall clinical situation, to undertake a laparotomy on 6 August 2009. The evidence does not, however, prove the very different proposition that it was unreasonable, or contrary to accepted competent colorectal professional practice, to continue for the time being with conservative management on 3 August 2009.
168 Similarly, an acceptance that it was reasonable to continue conservative management for the time being on 3 August 2009 is not logically inconsistent with an acceptance of the proposition that it was reasonable to perform a laparotomy on 6 August 2009. What was reasonable must depend upon the clinical assessment of the patient in all the circumstances at the relevant time. There was evidence that Mr Westcott was deteriorating on 6 August 2009. The judge found that at 12.45 am on 6 August 2009, Mr Westcott was examined by a doctor because his temperature had risen to 38°C. At 9.00 am he was 'feeling worse'.183 The judge set out in detail the doctor's notes of the examination at 12.45 am, with the judge's comments thereon in brackets, as follows:184
(i) The plaintiff was admitted nine [sic: seven] days prior for suprapubic pain which was initially thought to be diverticulitis, but after 'discussion with radiologists' was now thought to be appendicitis. It had been treated conservatively as his symptoms were improving. [This provides reliable secondary evidence of the reasoning of Dr Lau].
(ii) The plaintiff reported experiencing increased suprapubic cramping and diarrhoea 'today' (ie, during the previous 24 hours).
(iii) On examination, the plaintiff's entire lower abdomen was tender on deep palpation, with no guarding or rebound. (Illustrated by a diagram).
(iv) The clinical impression was of 'worsening appendicitis'. (original emphasis)
169 Counsel for Mr Westcott also relied on the judge's reasons at [323] and [359]. At [323], the judge said that Professor Mackay 'accepted that some doctors would disagree with his opinion and that the history of a perforated viscus elevated the need for a laparoscopy (ts 725)'. His Honour repeated that point at [359]. However, his Honour has misstated Professor Mackay's evidence at page 725 of the trial transcript, the material part of which is set out at [165] above.
170 Counsel for Mr Westcott also relied on the judge's findings to the effect that Mr Westcott's pelvic fluid collection evolved, and the sepsis worsened between 1 and 5 August 2009.185 However, those were findings on causation (not breach) and were made in the course of his Honour's reasoning as to why, if surgical intervention had occurred earlier, Mr Westcott would not have suffered a number of the complications which he later did.186 These findings are made with the benefit of hindsight, as is appropriate on causation, but would be impermissible on the question of negligence. They do not, and do not purport to, address the question of whether Dr Lau was negligent in continuing conservative management for the time being on 3 August 2009.
171 Counsel for Mr Westcott also referred to the judge's statement at [312] that Professor Toouli and Professor Mackay agreed that in 2009, some form of operative intervention (investigatory, therapeutic or both) needed to be high on the list of priorities if a diagnosis (primary or differential) of appendicitis had been made. Whilst that was the view of Professor Toouli, the judge did not regard his evidence as reliable. Further, on his Honour's findings, a diagnosis (primary or differential) of primary appendicitis had been excluded by the CT scans. Professor Mackay's evidence was, relevantly:187
[W]hat I'm going to put to you is that Professor Toouli's evidence in this case is that if there wasn't clear signs of improvement within 24 hours of starting the antibiotic regime, it was necessary to go in and conduct what he said was standard treatment for someone who had appendicitis - sorry, who had complicated appendicitis? --- He assumed - or he stated on the basis of whatever evidence, that the patient had appendicitis. What I've stated, the patient did not have appendicitis, had diverticulitis. So his - his comment is related to a different clinical scenario than to me.
I understand that. Because you say that if you have a diagnosis of diverticulitis then you should treat him conservatively. And what I'm putting to you is that if you had to have a differential diagnosis of appendicitis and he didn't get better within 24 hours … then standard treatment would require laparoscopy, remove the appendix … drain the abscess - - -? --- That's not correct.
…
Well ---? - - - And … I don't adhere to the term differential diagnosis except when teaching medical students. I (indistinct) the clinical diagnosis or working diagnosis. There's no point in approaching a patient with several different diagnoses in your head. You'll never get anywhere in the management of the patient.
So if you have a situation where you can't make a diagnosis, therefore you have differential, then that's a completely different kettle of fish.
All right. So you would say that the evidence of your colleague, Professor Toouli, in saying that there needed to be a differential diagnosis of diverticulitis on the one hand and appendicitis on the other is not an appropriate way to discuss the question of how this man's clinical condition should be analysed? --- Correct. (emphasis added)
172 The following exchange occurred a few pages later in the trial transcript:188
Professor Toouli says that once you make the diagnosis that he has appendicitis, even if he also has sigmoid colitis, if he doesn't get better within 24 hours of antibiotic treatment, you then - the standard treatment then requires you to go in laparoscopically? --- The patient did not have appendicitis. (emphasis added)
173 That line of cross-examination eventually led to the evidence referred to in [165] above, ie, that on the assumption that the surgeon could not make a diagnosis one way or another based on the CT scans as to whether appendicitis or diverticulitis was the primary source of the infection, laparoscopic surgery would have been standard treatment in 2009.
174 Finally, contrary to counsel for Mr Westcott's submissions, there was no evidence to the effect that secondary inflammation of the appendix could lead to the invasion of the appendix wall and the ultimate perforation of the appendix. There was no evidence that there was a risk of primary appendicitis resulting from the diverticulitis. The references given by counsel to the transcript in that regard did not support the proposition advanced.
175 Ground 3 should be upheld.
Ground 4
176 Although it is strictly unnecessary to deal with ground 4 in light of the conclusions reached in relation to grounds 1 - 3, it will be dealt with for completeness. Ground 4 challenges the judge's findings189 that Mr Westcott's abdominal complications, including pain, incisional hernias and wound infection, were caused by the delay in surgical treatment from 2 or 3 August to 6 August 2009.
177 The judge found that there was no evidence that the delay itself contributed to the development of the incisional hernias.190 His Honour nevertheless found causation to be proved in the following terms:191
However, the in situ drains that were left [in for drainage at the site of the operation on 6 August 2009] are a different matter. At least one of them was large and this is where the hernias first developed. I find that healing failed to properly occur in these areas and this caused the hernias to develop.
I am satisfied that the sepsis could have been dealt with and the laparotomy incision fully closed without the need for large in situ drains if the surgery had taken place early on 2 or 3 August. I have not overlooked that some form of in situ drainage (such as a tube) might have been left (Associate Professor Mackay, ts 651), but I cannot make a finding as to the nature or size of it, or even whether it would have been necessary.
I therefore find that many of the plaintiff's incisional hernias were caused by the defendant's negligence.
I am not satisfied that all of the incisional hernias were complications of the in situ drainage. But the evidence does not allow of segregation of their respective causal relevance. (emphasis added).
178 The point of the reference to Professor Mackay's evidence at page 651 of the trial transcript (referred to in the second paragraph quoted above) is not clear. Professor Mackay at page 651 of the trial transcript was referring to the topic of percutaneous drainage (by needle) by a radiologist without surgical intervention. He was not referring to the surgical drains left in situ following a laparotomy.
179 The judge found, in effect, that:
(a) this was never merely an uncomplicated case of appendicitis;192
(b) Mr Westcott would always have needed a laparotomy in any event (and not merely a laparoscopy);193 and
(c) there was no evidence pointing towards anything unusual about the laparotomy performed by Dr Lau.194
180 His Honour also referred, without criticism, to evidence to the effect that all the complications suffered by Mr Westcott 'are known sequellae [sic - sequelae] of abdominal inflammations and infections, and of surgery for the same'.195 His Honour also referred, with evident approval, to Professor Mackay's evidence to the effect that an incisional hernia is a recognised complication of a laparotomy incision.196
181 With respect, the question of whether and to what extent abdominal surgery on Mr Westcott would have required drainage on 2 or 3 August 2009 is not one which could be answered without expert evidence. Even though the judge found that the surgery on 6 August 2009 was extensive, involving the general dissection of the abscess from the various abdominal structures,197 the judge did not point to any expert evidence that drainage of the laparotomy site would have been materially different had the laparotomy occurred on 2 or 3 August 2009, rather than 6 August 2009. Nor was such an inference properly open, particularly in light of the findings and evidence referred to in the two preceding paragraphs.
182 Accordingly, the hospital has succeeded in establishing that the judge erred in concluding that the abdominal injuries referred to in [176] above were caused by the negligence of the hospital. Those injuries were taken into account in assessing damages, including in relation to his Honour's view of Mr Westcott's residual injuries and prognosis.198 The cases to which counsel for Mr Westcott referred in [133] above dealt with challenges to a trial judge's assessment of damages for the injuries caused to a plaintiff. They refer to the need for appellate restraint, having regard to the fact that such an assessment has many of the characteristics of a discretionary judgment. They are not directed to errors made by a trial judge on the issue of causation, in respect of which there is not the same caution about the limits on appellate intervention. There is no notice of contention to the effect that the damages would have been no different had the error on causation not been made.
183 Had it been necessary to do so, we would have upheld ground 4. In circumstances where we have upheld grounds 1 - 3, it is not necessary to determine what would flow from the success of ground 4 standing alone.
Conclusion
184 The appeal should be allowed.
1Westcott v Minister for Health [2015] WADC 122 (primary reasons).
2 Re-amended statement of claim, par 29; BB 120 - 121.
3 Primary reasons [29].
4 Primary reasons [31] - [33].
5 Primary reasons [158].
6 Primary reasons [338].
7 These matters are taken from the judge's findings in the primary reasons, including in annexures 1 and 2 of his reasons, unless otherwise indicated.
8 GB 47.
9 Trial ts 640.
10 Primary reasons [216] - [217], [360].
11 Trial ts 643 - 644.
12 Primary reasons [165] - [171], [348(xx)].
13 Primary reasons [348(xxi)].
14 Primary reasons [390(i)].
15 Primary reasons [6].
16 Primary reasons [6].
17 Primary reasons [77].
18 Primary reasons [8] - [10]; [88].
19 Primary reasons [88].
20 Primary reasons [11]; [89].
21 Primary reasons [90].
22 Primary reasons [91].
23 Primary reasons [13], [93], [174].
24 Primary reasons [95].
25 Primary reasons [96].
26 Primary reasons [64], [99] - [100].
27 Primary reasons [13].
28 The judge found that a temperature in excess of 37.5°C indicates fever: primary reasons annexure 1.
29 Primary reasons [103].
30 Primary reasons [112].
31 Primary reasons [115].
32 Primary reasons [119].
33 Primary reasons [118] - [121].
34 Primary reasons [122].
35 Primary reasons [124].
36 Primary reasons [14]; trial ts 592.
37 Primary reasons [127] - [128].
38 Primary reasons [131].
39 Primary reasons [132].
40 Primary reasons [133].
41 Primary reasons [348 (xiv)].
42 Primary reasons [134].
43 Primary reasons [136].
44 GB 75; primary reasons [136].
45 Primary reasons [139].
46 Primary reasons [141] - [145].
47 Primary reasons [146].
48 Primary reasons [147].
49 Primary reasons [150] - [151]; GB 78.
50 Primary reasons [153].
51 Primary reasons [156].
52 Primary reasons [157].
53 Primary reasons [157] - [158].
54 Primary reasons [16], [158].
55 Primary reasons [161].
56 Primary reasons [18], [157].
57 Primary reasons [18].
58 Primary reasons [19].
59 Primary reasons [20].
60 Primary reasons [21].
61 Primary reasons [21].
62 Primary reasons [22].
63 Primary reasons [23].
64 Primary reasons [29].
65 GB 25; primary reasons [210], [246] - [257].
66 Primary reasons [305].
67 Primary reasons [259] - [260].
68 Primary reasons [307] - [311].
69 Primary reasons [320].
70 GB 1 - 4; primary reasons [265] - [277].
71 Primary reasons [274].
72 Primary reasons [276].
73 Primary reasons [314] - [315], [317] - [321].
74 Primary reasons [324].
75 Primary reasons [212] - [213], [228].
76 Primary reasons [228], [229],[236], [237] and [241].
77 Primary reasons [213(iii)].
78 Trial ts 339.
79 Primary reasons [289] - [292].
80 Primary reasons [293].
81 Primary reasons [286]; trial ts 743 - 744.
82 Primary reasons [294(vi)].
83 Primary reasons [215].
84 Primary reasons [305].
85 Primary reasons [305(ii)].
86 Primary reasons [335] - [338].
87 Primary reasons [348(xx)].
88 Primary reasons [243].
89 Primary reasons [325] - [327].
90 Primary reasons [306].
91 Primary reasons [338].
92 Primary reasons [348(xx)].
93 Primary reasons [318].
94 Primary reasons [348(iv)].
95 Primary reasons [353].
96 Primary reasons [355].
97 Primary reasons [96].
98 Primary reasons [97].
99 Primary reasons [341] - [343].
100 Primary reasons [345].
101 Primary reasons [346], [349].
102 Primary reasons [362].
103 Primary reasons [348(xii)].
104 Primary reasons [348(xiv) - (xv)].
105 Professor Toouli, trial ts 444.
106 Primary reasons [348 (xi) - (xiv)]; [358] - [360].
107 Primary reasons [371].
108 Primary reasons [369] - [370].
109 Primary reasons [372] - [375].
110 Primary reasons [392] - [393].
111 Primary reasons [417].
112 Primary reasons [439].
113 Primary reasons [440] - [448].
114 Primary reasons [550] - [551].
115 Primary reasons [346].
116 Primary reasons [360].
117 Appellant's submissions, par 10; WB 13.
118 Respondent's submissions, par 3; WB 48.
119Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479, 489.
120Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434 [7].
121 Primary reasons [369].
122 Primary reasons [359] - [360], [370].
123 Primary reasons [415] - [417].
124 Trial ts 4 - 5, 10.
125 Appellant's written submissions, par 19.
126 Appellant's written submissions, par 35.
127 Appellant's written submissions, pars 27 - 28.
128 Appellant's written submissions, par 44.
129 Appellant's written submissions, par 47.
130 Appellant's written submissions, par 50.
131 Appellant's written submissions, par 53.
132 Appellant's written submissions, par 55.
133 Appellant's written submissions, par 60.
134 Appellant's written submissions, pars 62 - 67.
135 Appellant's written submissions, par 70.
136 Appellant's written submissions, pars 71 - 73.
137 As to that, see primary reasons [176].
138 Appeal ts 82.
139 Respondent's written submissions, par 18.
140 Respondent's written submissions, par 20 (emphasis removed).
141 Appeal ts 53 - 55.
142 Appeal ts 56 - 57, 60 - 61, 66.
143 Appeal ts 56, and see also appeal ts 57, 59, 74, 76.
144 Appeal ts 72.
145 Counsel for the appellant accepted, however, in oral submissions that Professor Thomson's evidence at trial ts 739 was merely directed to a hypothetical proposition: appeal ts 76.
146 Respondent's written submissions, par 24.
147 Respondent's written submissions, par 30.
148 Respondent's written submissions, par 32.
149 Primary reasons [399(ii) - (iii)].
150 Primary reasons [399(ix)].
151 Primary reasons [410].
152Miller v Jennings [1954] HCA 65; (1954) 92 CLR 190.
153Falkingham v Hoffmans (a firm) [2014] wasca 140; (2014) 46 war 510 [318].
154Planet Fisheries Proprietary Limited v La Rosa [1968] HCA 62; (1968) 119 CLR 118.
155Planet Fisheries (125).
156 Primary reasons [340] - [342].
157 Anatomical diagram, GB 49; Professor Little's evidence, trial ts 319 - 320; Professor Little's report, par 12; GB 47; also trial counsel for Mr Westcott put in cross-examination to Dr Lisewski that the appendix was 'next door' to the sigmoid colon (trial ts 619).
158 Primary reasons [96] - [97].
159 Trial ts 342 - 343.
160 Re-amended statement of claim, par 29(a); BB 120; trial ts 4 - 5, 10; see also par 26 of Mr Westcott's written submissions, 3 March 2015, in which it was said that 'the root cause of the delay in treatment of [Mr Westcott's] condition was misdiagnosis that [he] was suffering from diverticulitis, when there was sufficient evidence that [he] was suffering from appendicitis'.
161 GB 24; see also counsel for Mr Westcott's opening submissions, trial ts 5.
162 GB 43.
163 Primary reasons [208].
164 Primary reasons [297].
165 Primary reasons [345].
166 Trial ts 716.
167 Primary reasons [369].
168 Primary reasons [348(iv)].
169 Primary reasons [294(vi)].
170 Primary reasons [324].
171 Primary reasons [243].
172 Primary reasons [358].
173 Primary reasons [348(xii)].
174 Primary reasons [348(xiv) - (xv)].
175 Trial ts 657.
176 Primary reasons [274], [314], [317] - [321], [324].
177 Primary reasons [359] - [360].
178 Primary reasons [286], [324].
179 Professor Mackay's report; GB 35 - 36, 38; trial ts 635, 647 - 648, 654, 702, 705 - 706, 709 - 711, 719 - 720.
180 Primary reasons [360].
181 Primary reasons [293]; see also primary reasons [286] referring to Professor Mackay's evidence at ts 743 - 744.
182 That is apparent when his evidence is read as a whole, and in particular trial ts 640, 643 - 645, 648, 657 - 658, 681, 686 - 687, 710, 716, 718 - 719, 724.
183 Primary reasons [153].
184 Primary reasons [150].
185 Primary reasons [390(iii) - (iv)].
186 Primary reasons [378] - [393].
187Trial ts 719 - 720.
188 Trial ts 724.
189 Primary reasons [395] - [397], [415] - [417].
190 Primary reasons [412].
191 Primary reasons [413] - [416].
192 Primary reasons [380].
193 Primary reasons [375], [377].
194 Primary reasons [411].
195 Primary reasons [381].
196 Primary reasons [402].
197 Primary reasons [410(i)].
198 Primary reasons [452] - [462].
3
8
1