Spasovic v Sydney Adventist Hospital
[2003] NSWSC 791
•12 September 2003
CITATION: Spasovic v Sydney Adventist Hospital [2003] NSWSC 791 HEARING DATE(S): 03/03/03-07/03/03,10/03/03-14/03/03,17/03/03-21/03/03,24/03/03-25/03/03,27/03/03,28/03/03,31/03/03,01/04/03-04/04/03,07/04/03-09/04/03 JUDGMENT DATE:
12 September 2003JUDGMENT OF: James J at 1 DECISION: Verdicts for the Defendants CATCHWORDS: Medical Negligence PARTIES :
Rajko Spasovic and Kosovka Spasovic v Sydney Adventist Hospital & Ors FILE NUMBER(S): SC 20408/97 COUNSEL: B Donovan QC/E Pike - Plaintiffs
M Bozic SC - 1 Defendant
D Higgs SC/L Boyd 2 & 3 DefendantsSOLICITORS: T. Stern - Plaintiffs
Ebsworth & Ebsworth - 1 Defendant
Blake Dawson Waldron 2 & 3 Defendants
SPASOVIC v SYDNEY ADVENTIST HOSPITAL
20408/97
INDEX TO JUDGMENT
HEADING TO PART OF JUDGMENT Introduction Outline of Non-Controversial or Clearly Established Facts Nature of the First Plaintiff’s Claim The Defence Cases Outline of the Evidence Were the Defendants Negligent Evidence The Hospital’s Medical Records 19-27 Evidence of the Plaintiffs, their Son Aleksandar and their Relatives and Friends 27-53 Evidence of the Hospital’s Nurses 53-69 Evidence of Dr Cutter and Dr Brooks 70-93 Assessment of the Evidence The Hospital’s Medical Records 93-95 Evidence of the Plaintiffs, their Son, their Relatives and Friends 95-103 Evidence of the Hospital’s Nurses 103-105 Evidence of Dr Cutter and Dr Brooks 105-114 Conclusion 114-116 Expert Evidence Dorsch 117-132 Brew 132-142 Lance 142-156 Vinen 156-163 Thomson 163-166 Besser 166-169 Terenty 169-174 Morgan 174-178 The Expert Witnesses Generally 178-179 Determination of Whether the Defendants were Negligent The Hospital 179-180 Dr Cutter 180-186 Dr Brooks 186-190 Conclusions Did the Plaintiff have an AVM, was there a Sentinel Bleed from the AVM and was the Plaintiff’s headache in the Hospital caused by the Sentinel Bleed If a CT scan without contrast had been carried out, would it have shown the Sentinel Bleed If the Sentinel Bleed had been discovered would the Plaintiff have been advised that he had had a cerebral haemorrhage and that he should remain at the Hospital If the Plaintiff had been advised to remain at the Hospital would he have taken this advice and not have left the Hospital on the morning of Saturday 20 January 1996 If the Plaintiff had remained at the Hospital, would he have been kept under close observation, would any deterioration in his condition have been quickly noticed and would he have been operated on for the removal of the major haematoma, earlier than he was, by about 4 or 5 hours Evidence Dorsch 198-216 Brew 216-220 Lance 220-221 Besser 221 Terenty 221-229 Morgan 229-239 Determination Step 8 239-242 Step 9 242-247 Damages Proceedings by the Second Plaintiff
IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISIONJAMES J
Friday 12 September 2003
20408/97 RAJKO SPASOVIC v SYDNEY ADVENTIST HOSPITAL & 1 ORS
INTRODUCTIONJUDGMENT
1 HIS HONOUR: These are proceedings brought by the plaintiffs, Rajko Spasovic and his wife Kosovka Spasovic against the defendants, the Australian Conference Association Limited (the first defendant), Dr Roderick Seymour Brooks (the second defendant) and Dr Geoffrey Christopher Cutter (the third defendant). In the proceedings the first plaintiff Mr Spasovic claims that he suffered personal injuries, because the defendants were negligent in providing medical assessment, treatment and advice for him, while he was a patient at the Sydney Adventist Hospital at Wahroonga (“the Adventist Hospital” or “the Hospital”) between Tuesday 16 January 1996 and Saturday 20 January 1996, when he was discharged from the Hospital. The second plaintiff Mrs Spasovic claims that she suffered injury from nervous shock (psychiatric injury) as a result of the defendants’ negligence in providing medical assessment, treatment and advice for her husband. Although there are two plaintiffs, Mr Spasovic is the principal plaintiff and it will often be convenient to refer to him in this judgment simply as “the plaintiff”.
2 The first defendant has been sued as being the company which in January 1996 controlled and managed the Adventist Hospital. The second defendant is an orthopaedic surgeon, who on 17 January 1996 performed an operation on the first plaintiff at the Hospital. However, the claim that the second defendant was negligent is based, not on the manner in which he performed this operation, but on his alleged failure to exercise reasonable care in providing medical assessment, treatment and advice for the first plaintiff, on occasions after the operation was performed. The third defendant is a general medical practitioner, who in January 1996 held a position at the Hospital described as that of “a career medical officer” (“CMO”) and who in that capacity assessed, advised and treated the first plaintiff on 18 January 1996. It is alleged that the third defendant was negligent in so assessing, advising and treating the first plaintiff. It was common ground between the parties that the second defendant and the third defendant were not in January 1996 employees of the first defendant and that the first defendant was not vicariously liable for any negligence of the second defendant or the third defendant. At the hearing the first defendant and the second and third defendants were separately represented, the same counsel appearing for both the second defendant and the third defendant.
3 The plaintiffs’ claim against all the defendants, stated very broadly, is that the defendants failed to exercise reasonable care in assessing and treating complaints made and symptoms exhibited by the first plaintiff, and in particular a headache, which were caused by a small cerebral haemorrhage from an arterio-venous malformation (AVM”) in the first plaintiff’s brain and that in consequence of the defendants’ negligence the first plaintiff was discharged from the Hospital on 20 January 1996, without the small cerebral haemorrhage or the AVM having been diagnosed, and that later on the same day the first plaintiff suffered a major cerebral haemorrhage from the AVM, which has caused the first plaintiff to have very serious permanent disabilities. The second plaintiff claims that she suffered injury from nervous shock (psychiatric injury) as a result of the defendants’ negligence in assessing and treating her husband.
OUTLINE OF NON-CONTROVERSIAL OR CLEARLY ESTABLISHED FACTS
4 It will be convenient to set out an outline of non-controversial or clearly established facts, which will serve as a background or framework for a consideration of the evidence, of the issues, including disputed questions of fact, and of the contentions of the parties.
5 At about 7 o’clock on the evening of Tuesday 16 January 1996 the first plaintiff was cleaning a high window in the foyer of his home at Kenthurst on the north western fringe of Sydney. He was standing on a ladder, which was leaning against a wall. The ladder fell forward to the floor and the plaintiff fell with the ladder. The plaintiff suffered serious lacerations to both of his feet, particularly the left foot. The lacerations were caused by parts of the ladder cutting his bare feet. The plaintiff did not hit his head in the fall. The distance the plaintiff fell was variously estimated in the evidence as being 1.5 metres, 2.5 metres or 3 metres.
6 Mrs Spasovic was not at home when the plaintiff fell. The plaintiffs’ son Aleksandar, then seventeen years old, was present. Aleksandar wrapped some tea towels around his father’s bleeding feet and telephoned his mother on her mobile telephone. Mrs Spasovic returned to the house.
7 The plaintiffs went together to the Castle Hill Medical Centre. A doctor at the Medical Centre examined the first plaintiff’s feet and advised him that his injuries were too severe for the doctor to treat at the Medical Centre and that the first plaintiff should go to a hospital. Mr Spasovic decided that he would go to the Adventist Hospital. He was by occupation a design project manager employed by Fletcher Construction Australia Limited and he had worked as a design project manager for that company on a building project at the Adventist Hospital
8 The Adventist Hospital did not have an emergency department of the type found in major public hospitals. However, it had an emergency service, which provided an after-hours medical consultation service for persons who presented themselves at the Hospital seeking medical treatment.
9 At the Hospital the plaintiff was seen on the night of 16 January by a Dr Greg McDonald, who took a history from the plaintiff and examined his feet.
10 Later that night the plaintiff was seen at the Hospital by the second defendant Dr Brooks, who decided that the plaintiff required surgery to his feet. Dr Brooks would have operated on the plaintiff that night, but for the fact that the plaintiff had not been fasting. Dr Brooks decided that he would operate on the plaintiff’s feet the following day. The plaintiff was admitted as a patient at the Hospital.
11 On the following day Wednesday 18 January 1996, in an operation commencing at or shortly after 11 a m. which was performed under general anaesthetic, Dr Brooks debrided and sutured the plaintiff’s lacerated feet.
12 After the operation had been completed, the plaintiff was taken to the orthopaedic ward at the Hospital.
13 A drip was placed in the plaintiff’s arm, so that he could, by pressing a button, self-administer morphine to himself in limited doses, to control the pain from his feet. This system of self-administered analgesia was referred to in the evidence as “the PCA” (patient controlled analgesia).
14 The plaintiff remained a patient at the Hospital, until he was discharged on the morning of Saturday 20 January 1996. While he was a patient, progress notes were made about the plaintiff in the Hospital’s medical records by nurses and by others, including the second defendant and the third defendant.
15 While he was patient at the Hospital, the plaintiff made complaints to the nursing staff of having a headache and certain other symptoms.
16 After the plaintiff had made such a complaint, a member of the Hospital’s nursing staff requested that Dr Cutter medically review the plaintiff and Dr Cutter medically reviewed the plaintiff at some time in the mid to late morning of Thursday 18 January 1996. As previously stated, Dr Cutter was a career medical officer at the Hospital who was on duty on 18. January. The Hospital did not have any employed resident medical officers. General medical practitioners such as Dr Cutter were engaged by the Hospital as independent contractors to work twenty-four hour shifts at the Hospital. The functions of career medical officers, only one of whom was on duty at any one time, included medically reviewing patients at the Hospital, when requested to do so by a member of the nursing staff. Dr Cutter made notes of his medical review of the plaintiff in the Hospital’s medical records. Dr Cutter formed the impression that the plaintiff’s headache was a classic “tension headache”.
17 While the plaintiff was a patient at the Hospital, he was seen each morning by Dr Brooks, usually at about 9.30. On the morning of Friday 19 January 1996, while he was being seen by Dr Brooks, the plaintiff complained to Dr Brooks that he had a headache. It was the first recorded occasion on which the plaintiff had complained to Dr Brooks of having a headache. Dr Brooks considered that the PCA might be causing the plaintiff’s headache and he directed that the PCA should cease. At about 9.40 the PCA equipment was taken down.
18 While he was a patient at the Hospital, the plaintiff was visited by his wife and his son Aleksandar and by certain friends and relatives and he also had telephone conversations with some of these people, and particularly his wife.
19 On the morning of Saturday 20 January 1996 the plaintiff was discharged from the Hospital. He had been seen by Dr Brooks that morning, before he was discharged. The plaintiff’s son Aleksandar drove to the Hospital, picked up his father and drove him back to the home at Kenthurst.
20 Mrs Spasovic did not go to the Hospital on the Saturday morning. She was busy with preparations for a “Slava”, a family celebration to be held at the plaintiffs’ home, which would be attended by an Orthodox priest and approximately thirty guests.
21 Both the plaintiffs are of Serbian extraction. The first plaintiff was born in Australia. The second plaintiff was born in a part of the former Yugoslavia and migrated to Australia as a teenager. She has a good command of English.
22 After the first plaintiff returned home on Saturday 20 January his condition progressively deteriorated. It is an issue in the case whether this progressive deterioration had already commenced and it was apparent that it had already commenced, before the plaintiff left the Hospital. At his home the plaintiff complained of an increasingly severe headache and he exhibited increasing difficulty in speaking and increasing weakness on the right side of his body. He began to lose consciousness.
23 At 5.38 in the afternoon of 20 January, a time fixed by ambulance records, Mrs Spasovic telephoned the ambulance service. She telephoned the Adventist Hospital and spoke to a male nurse, who advised her that her husband should be taken to Westmead Hospital and not back to the Adventist Hospital.
24 An ambulance arrived at the plaintiffs’ home and transported the first plaintiff to Westmead Hospital, arriving at that hospital at 6.42 p m. Mrs Spasovic travelled in the ambulance with her husband.
25 At Westmead Hospital a CT scan was carried out and then an angiogram and it was ascertained that the plaintiff had a large cerebral haematoma. Professor Dorsch, a neurosurgeon, performed an emergency craniotomy on the plaintiff, which commenced at about 11 p m. The purpose, or at least the principal purpose, of the surgery was to endeavour to save the plaintiff’s life. In the operation Professor Dorsch removed the cerebral haematoma and the plaintiff survived.
26 For several months after the operation the plaintiff was a patient at either Westmead Hospital or at the Mount Wilga Rehabilitation Centre. During this period the plaintiff suffered a deep venous thrombosis and a pulmonary embolism. The plaintiff finally returned home in about June 1996. The plaintiff has very serious permanent disabilities, including right sided hemiplegia and difficulties in comprehending and expressing speech.
NATURE OF THE FIRST PLAINTIFF’S CLAIMS
27 It was not disputed that each of the defendants owed a duty to exercise reasonable care in providing medical services to the first plaintiff.
28 The principal claim by the first plaintiff that each of the defendants had been negligent and that thereby the first plaintiff had suffered loss or damage was based on a number of steps, which were stated in counsel for the plaintiffs’ submissions substantially as follows:-
29 1. While he was a patient at the Hospital the plaintiff suffered from a headache, which, it was submitted, had certain features.
30 2. The Hospital by its nursing staff and the second and third defendants were aware, or ought to have been aware, of features of the headache, “which would require steps (to be taken) to exclude possibly sinister intracranial pathology”, in order for the defendants to discharge their obligation to provide reasonable care.
31 3. The steps which were required to be taken included, at the least, the taking of a CT scan without contrast.
32 4. The plaintiff in fact had an AVM (arterio-venous malformation), a congenital defect which was located deep in his brain, and had, while in the Hospital, suffered a sentinel or warning haemorrhage or bleed from the AVM and the headache the plaintiff had while he was in the Hospital had been caused by the sentinel bleed from the AVM.
33 5. If a CT scan without contrast had been carried out, it would have shown the sentinel bleed and might have shown the AVM itself. Even if a CT scan without contrast had not shown the AVM, the discovery of the bleed would have prompted further investigations, which would have revealed the AVM.
34 6. If the sentinel bleed had been discovered, the plaintiff would have been advised that he had had a cerebral haemorrhage and that he should remain at the Hospital.
35 7. If the plaintiff had been advised to remain at the Hospital, he would have taken this advice and would not have left the Hospital on the morning of Saturday 20 January 1996.
36 8. If the plaintiff had remained at the Hospital, he would have been kept under close observation, any deterioration in his condition would have been quickly noticed and he would have been operated on for the removal of the major haematoma, earlier than he was, by about four or five hours.
37 9. If the plaintiff had been operated on earlier, the outcome for the plaintiff would have been better than it actually has been; the disabilities the plaintiff would have suffered would have been less severe than they actually have been.
38 A variant of this principal way in which the plaintiff’s claim was put, which was put in submissions by counsel for the plaintiff, retained the first five steps of the principal way and then proceeded along the following lines. If the plaintiff, notwithstanding that the sentinel bleed had been discovered, had not been advised to remain at the Hospital (perhaps because of the low risk of a re-bleed from the AVM) or, having been advised to remain at the Hospital, had not taken this advice and had discharged himself (perhaps because of advice to him of the low risk of a re-bleed from the AVM or because of a desire to leave the Hospital in order to attend the Slava celebration), nevertheless he would have been advised that, if he started to fell unwell, he should seek urgent medical attention. If such advice had been given, the plaintiff would have heeded it and would have sought urgent medical attention as soon as he started to feel unwell and he would still have been operated on earlier than he was, with a better outcome for him.
39 A further way in which the plaintiff’s case was put in oral submissions was that, even if the sentinel bleed had not been discovered and even if it was not negligent on the part of the defendants not to have discovered the sentinel bleed, nevertheless on the morning of Saturday 20 January 1996 the plaintiff while he was still at the Hospital was exhibiting such florid symptoms that it was negligent to discharge him. If the plaintiff had not been discharged and had been kept at the Hospital, the plaintiff would have been kept under observation and any further deterioration in his condition would have been quickly noticed, so that on this scenario as well the plaintiff would have been operated on earlier than he actually was, with a better outcome for him.
40 A still further way in which the plaintiff’s case was sometimes put was that, even if the sentinel bleed had not been discovered and it was not negligent on the part of the defendants not to have discovered the sentinel bleed and even if the plaintiff appeared to be well when he was discharged, nevertheless it was negligent to discharge him, without advising him that the headache he had had in the Hospital might possibly have had a sinister cause and that, if the headache returned, he should seek urgent medical attention. If this advice had been given, the plaintiff would have heeded it and, upon his headache returning, he would have sought urgent medical attention, so that on this scenario as well the plaintiff would have been operated on earlier than he actually was, with a better outcome for him.
41 In my summary of the various ways in which the plaintiff’s case was put, I have described the loss or damage which the plaintiff alleges he suffered as a result of the alleged negligence, as being the loss of a better outcome from earlier surgery after the major haemorrhage had commenced. The particulars appended to paragraph 10 of the further amended statement of claim filed on 17 April 2002 suggest a claim by the plaintiff that, if the defendants had not been negligent and the sentinel bleed and the AVM had been discovered, some kind of “operative treatment” could have been performed, which would have prevented the major haemorrhage occurring at all (perhaps by the excising of the AVM). I will return to the subject of possible preventive surgery later in this judgment but I will observe at this stage that such a claim was not ultimately pressed by counsel for the plaintiff.
42 A submission which was sometimes put by counsel for the plaintiff was that, even if the plaintiff had not proved that he had suffered actual damage as a result of the defendants’ negligence, in the form of the loss of a better outcome from earlier surgery performed after he had commenced to suffer the major haemorrhage, nevertheless as a result of the defendants’ negligence he had lost a chance of the major haemorrhage not occurring at all. It was submitted that, if the plaintiff had remained in Hospital, after the sentinel bleed had been detected and he had been advised to remain in Hospital, he would have remained resting in bed at the Hospital and would not have been subjected to the stress and activities of the Slava celebration at his home, which might have been responsible for triggering the major haemorrhage from the AVM.
43 Against this background of the ways in which the first plaintiff’s claims against all the defendants were formulated, I will briefly indicate the claims which were most strongly pressed against the individual defendants.
44 It was submitted that the Hospital was vicariously liable for the negligence of its nurses in failing to take reasonable care in observing the plaintiff and in making notes about the plaintiff’s condition in the Hospital’s medical records. It was submitted that the nurses had failed to observe, or, if they had observed, they had failed to note, symptoms which were readily observed by members of the plaintiff’s family or friends of the plaintiff who visited the plaintiff while he was in the Hospital or who spoke with him on the telephone.
45 It was submitted that, having regard to the symptoms he was then exhibiting, the Hospital was negligent in discharging the plaintiff on the morning of Saturday 20 January 1996.
46 As I have already indicated, it was not submitted that the Hospital was vicariously liable for any negligence of either the second defendant or the third defendant. It was not submitted (and had not been pleaded) that the first defendant had failed to exercise reasonable care in instituting or maintaining a safe system of conducting its operations at the Hospital.
47 It was submitted that Dr Cutter was negligent on 18 January 1996, in not exercising reasonable care in assessing, advising and treating the plaintiff and, in particular, in not forming an opinion that there might be a sinister intracranial cause of the plaintiff’s headache such as to require the carrying out of further investigation.
48 It was submitted that Dr Brooks was negligent on 19 January 1996, in the same sort of way as it was submitted Dr Cutter was negligent on 18 January.
49 It was submitted that, having regard to the symptoms the plaintiff was then exhibiting, Dr Brooks was negligent in being a party to the discharging of the plaintiff on 20 January 1996.
THE DEFENCE CASES
50 Counsel for the first defendant and counsel for the second and third defendants disputed most of the steps in the plaintiff’s principal case on negligence (and the variant of the principal case).
51 It was accepted by counsel for the defendants that the plaintiff had had a headache while he was in the Hospital but it was disputed that it had some of the features, or at least that the first defendant by its nurses or the second or third defendants were aware or ought to have been aware that it had some of the features, which counsel for the plaintiff contended I should find the headache had had. It was disputed that any further steps were required to be taken to investigate the plaintiff’s headache than were in fact taken and in particular that the carrying out of a CT scan had been required.
52 It was disputed, at any rate by counsel for the second and third defendants, that the plaintiff had had a AVM or that he had suffered a sentinel bleed from an AVM or that his headache had been caused by a sentinel bleed from an AVM.
53 Although no concession was made, it was less strongly disputed that, if a CT scan even without contrast had been carried out, it would have shown a sentinel bleed, if there was one, and that, if a CT scan without contrast had shown a sentinel bleed, further investigation would have been carried out, which would have revealed an AVM, if there was one.
54 It was also less strongly disputed that, if a sentinel bleed had been discovered, the plaintiff would have been advised to remain at the Hospital and that the plaintiff would have accepted this advice and would not have left the Hospital on the morning of Saturday 20 January and would have been kept under close observation at the Hospital.
55 It was disputed that, whether the plaintiff had remained at the Hospital or the plaintiff had been discharged from the Hospital, he would have been operated on for the removal of the major haematoma any earlier or much earlier than he was, and it was very strongly disputed that, even if the plaintiff had been operated on earlier than he was, the outcome for the plaintiff would have been any better at all than it actually has been, as regards the disabilities the plaintiff would have suffered.
56 It was disputed that while he was still at the Hospital on the morning of Saturday 20 January 1996 the plaintiff was exhibiting any symptoms such as would have made it negligent to discharge him.
57 It was disputed that, if no sentinel bleed had been discovered and if the plaintiff appeared to be well, it would have been negligent to discharge the plaintiff on 20 January 1996, without giving him advice that the headache he had had in the Hospital might possibly have had a sinister cause and that, if the headache returned, he should seek urgent medical attention.
58 It was submitted that, even if an AVM had been discovered, it would have been situated deep in the plaintiff’s brain and the risks of surgery to remove it would have been so great as to preclude any surgery which might have prevented the major haemorrhage occurring. The craniotomy which was performed by Professor Dorsch on the night of 20 January 1996 had been performed, only when the plaintiff’s condition had deteriorated to such a point that surgery was essential in order to save the plaintiff’s life.
59 It was submitted that as a matter of law the plaintiff, in the absence of proof on the balance of probabilities that he had suffered actual damage as a result of the defendants’ negligence, was not entitled to rely on the alleged loss of a chance of the major haemorrhage not occurring at all and that, in any case, the major haemorrhage would have occurred in any event, even if the plaintiff had remained at the Hospital.
OUTLINE OF THE EVIDENCE
60 A very large amount of evidence was adduced at the hearing.
61 A pre-trial direction had been given that the evidence in chief of witnesses on issues going to liability should be in writing and most of the evidence in chief on issues going to liability was in the form of witness statements or reports. Many of the lay witnesses for the plaintiffs had made two statements, a first statement made at some time in 1996 some months after January 1996 and a second statement made in or about September 2001. Each of Dr Brooks and Dr Cutter had made more than one statement. A large number of nurses at the Hospital had made statements in February or March 1996. All of the expert medical witnesses had made at least one and often more than one report. Most of the witnesses, even if they had made a statement or a report, also gave some oral evidence in chief. Almost all witnesses were subjected to lengthy cross-examination. In referring in this paragraph to “statements” made by witnesses, I am using the word “statement” in a broad sense as including any document in which the author of the document made assertions of fact about what had happened in relation to Mr Spasovic and not necessarily in the more limited sense of a document prepared with the assistance of a lawyer for the purpose of these proceedings
62 The witnesses who gave evidence for the plaintiffs can be divided into the following groups.
(1) The plaintiffs and their son Aleksandar.
(2) Relatives or friends who visited the first plaintiff or who telephoned him while he was a patient at the Hospital. This group comprises the following persons:-
Mrs Avramovic, Mr Bajic, Mr Dobrich, his wife Mrs Dobrich (a sister of Mrs Spasovic) and Mr Duffy.
Professor Dorsch, a neurosurgeon who, as previously indicated, operated on the first plaintiff at Westmead Hospital on 20 January 1996;(3) Medical witnesses. This group comprises the following:-
Professor Brew, a professor of neurology;
Professor Lance, an emeritus professor of neurology;
Dr Vinen, formerly head of the emergency department at Royal North Shore Hospital;
Dr Thomson, a former surgeon;
Dr Schnier, a radiologist;
Dr Walden, a psychiatrist, who saw Mrs Spasovic for medico-legal purposes;
Dr Selwyn Smith, a psychiatrist, who saw both plaintiffs for medico-legal purposes.
63 All the above witnesses gave oral evidence. There was also brief documentary evidence from some other medical witnesses.
64 None of the medical witnesses for the plaintiffs, apart from Professor Dorsch, had medically treated either plaintiff.
Ms Alach, an occupational therapist, who gave evidence about the first plaintiff’s needs for care;
(4) Witnesses who gave evidence about aspects of the first plaintiff’s claim for damages. This group comprised:-
Mr Barton, who gave evidence relating to the first plaintiff’s claim for damages for loss of earning capacity;
Mr Rossetto who prepared calculations relating to the first plaintiff’s claim for damages for loss of earning capacity;
Mr McHugh, who gave evidence relating to what was submitted would have been a possible career path for the first plaintiff, if he had not been injured.
Mr Ridley-Smith, the first plaintiff’s present employer, who gave evidence relating to the first plaintiff’s claim for damages for loss of earning capacity.
65 A large number of documents were tendered by counsel for the plaintiffs and admitted into evidence. A large volume described as “Plaintiffs’ Tender Folder”, which became exhibit 1, contained statements made by the plaintiffs, their son and their friends and relatives; the medical records of the Hospital relating to the first plaintiff; the Ambulance Service report about the taking of the first plaintiff by ambulance to Westmead Hospital on the evening of 20 January 1996; the clinical notes of Westmead Hospital relating to the first plaintiff for his various admissions to that Hospital between 20 January 1996 and 5 February 1996, between 12 February 1996 and 27 February 1996, between 8 May 1996 and 14 May 1996 and on 17 November 1996; radiological reports; and reports by medical practitioners including Professor Dorsch who had treated the first plaintiff while he was in Westmead Hospital.
66 Among the exhibits tendered on behalf of the plaintiffs which were frequently referred to during the hearing were the following:-
67 (a) Exhibit 10, being a document with nine numbered paragraphs (i) to (ix) which purported to state, in order, the progression of the complaints and symptoms of the first plaintiff from the time he arrived home on 20 January 1996 to the condition he was in late in the afternoon when the ambulance arrived.
68 (b) Exhibit 29, a copy of an article published in the American medical journal “Stroke”, described as being an “AHA (American Heart Association) Scientific Statement” and headed “Guidelines for the Management of Spontaneous Intracerebral Hemorrhage”.
69 (c) Exhibit 30, a copy of an article published in the American medical journal “Neurology” entitled “Re-bleeding leads to poor outcome in ultra early craniotomy for intracerebral hemorrhage.”
70 A large volume of evidence was also adduced by the defendants.
71 Most of the documentary evidence adduced by the first defendant was in a folder described as “First Defendant’s Tender Documents”, which became exhibit “1D1”. These documents included a statement and two reports by Dr McDonald, the doctor who saw the first plaintiff at the Hospital on the night of 16 January 1996. The documents in exhibit 1D1 also included statements by a large number of nurses and a physiotherapist, who had had some contact with the first plaintiff during his stay at the Hospital. The documents in exhibit 1D1 also included letters of instructions to, and reports from, the first defendant’s expert witnesses Professor Michael Besser, a neurosurgeon, and Dr Tanya Terenty, a now retired neurologist.
72 Seven of the nurses who made statements which were included in exhibit 1D1, namely nurses Anderson, Beall, Birrell, Hunt, McClure, Race and Perkins also gave oral evidence. Sister Perkins has since married but it will be convenient to refer to her by the name by which she was known in January 1996 and which she used when making notes about the first plaintiff in the Hospital’s medical records.
73 Dr Terenty also gave oral evidence. Professor Besser’s medical commitments prevented him giving evidence.
74 Documentary evidence adduced on behalf of the second and third defendants included statements by Dr Cutter, notes made by Dr Brooks on 23 January 1996 and a statement made by Dr Brooks, letters of instructions to, and reports from, Professor Michael Morgan, a neurosurgeon, and Dr Yvonne Skinner a psychiatrist who examined the second plaintiff Mrs Spasovic, and a report from Dr John Stephen, an orthopaedic surgeon. Dr Cutter, Dr Brooks, Professor Morgan and Dr Skinner gave oral evidence.
WERE THE DEFENDANTS NEGLIGENT
75 I will now consider the first three steps in the plaintiff’s principal case, namely whether the plaintiff has established that the headache he had while he was in the Hospital had features of which the Hospital by its nursing staff or the second or third defendants were aware or ought to have been aware, such that the defendants were negligent not to have taken steps to exclude possibly sinister intracranial pathology, including the carrying out of a CT scan; in short, whether the plaintiff has established that the defendants or any of them were negligent.
76 It is necessary to make findings of fact about what features the plaintiff’s headache had or at least what features the plaintiff’s headache had of which the defendants or one or more of them were or ought to have been aware, and, more generally, about what happened during the plaintiff’s stay in the Hospital.
77 It was submitted by counsel for the plaintiffs that I should accept evidence by the second plaintiff, the plaintiffs’ son and the plaintiffs’ relatives and friends about their observations of the first plaintiff while he was in the Hospital and on the basis of this evidence find that the first plaintiff’s headache had features which were not recorded in the Hospital’s medical records and that the existence of these features, in combination with the features of the first plaintiff’s headache which were recorded in the Hospital’s medical records, showed that the defendants had been negligent.
78 Alternatively, it was submitted by counsel for the plaintiffs that, even if the only features of the headache were the features described in the Hospital’s medical records, the defendants would still have been negligent.
79 The evidence as to what features the plaintiff’s headache had and, more generally, as to what happened during the plaintiff’s stay in the Hospital is to found in:-
1. The Hospital’s medical records relating to the plaintiff.
2. Evidence of the plaintiffs, their son Aleksandar and their relatives and friends.
4. Evidence of Dr Cutter and Dr Brooks.3. Evidence of the Hospital’s nurses.
80 I will deal separately with each of these classes of evidence.
1. The Hospital’s Medical Records
81 Copies of the medical records of the Hospital relating to the plaintiff occupy pages 53-85 inclusive of the Plaintiff’s Tender Folder exhibit 1. Copies of the part of the medical records described as “Integrated Progress Notes” are at pages 74 to 79 of exhibit 1. Although the pages of the original Integrated Progress Notes are not numbered, it is convenient to adopt the page numbers which were put on the copies of the Integrated Progress Notes in exhibit 1. The Integrated Progress Notes were generally referred to at the hearing as “the Hospital notes” and I will use that expression. Because the Hospital notes were repeatedly referred in the evidence and in submissions, I propose to set out the Hospital notes verbatim. The Hospital notes contain a number of standard medical abbreviations, most of which are obvious. A number of persons made entries in the Hospital notes. Almost all of the entries, apart from the entries made by Dr McDonald, Dr Cutter or Dr Brooks, were made by nurses.
(Page 74)
- “16.01.96 PS – lacerations both feet
HPI – fell off ladder onto feet landed on sharp end of ladder
PHx – ingrown toenaillacerations both feet
SHx – meds nil
- - Cigs 15/day –
- ETOH > 50 grams > 3/week
Allergies – nil
O/E – well looking
- obs stable
(Diagram of feet)
- Deep lacerations
no tendons exposed
- Otherwise well
- sore ® heel – no clinical #
no swelling – mildly tender only
- no pain/tenderness in lumbar spine
(Page 75) -
D/W Dr Brooks
OR in a.m. under GA
Dress – o’night c Betadine
IV antibiotics
Elevate legs
® calcaneus x-ray (F)
Last tetanus 1989 tet tox
Signature G. McDonald
16/01/96 - 12 midnight
History as above
Large lac sole (L) foot
Small “ “ (R) “
For debridement + repair in O.T. tomorrow
a.m. (3rd on my list)
(Signature) Rod Brooks
(17/01/96)
0030 Pt transferred from day care unit. IV patent. P settled into bed. Pain has eased since IMI analgesia. Some ooze noted through dressing left foot. Foot of bed elevated and feet nursed on pillows. Kept NBM.
E King RN (signature)
0300 Pt had not slept and requiring more pain relief – RMO contacted and IMI order changed to 3 hrly. Same given plus Normison 20 mgs – with good effect –
E King RN (signature)
Has not voided since admission
– E King RN (signature)
0900 X-ray performed
X-ray of right calcaneum done
Signature
1025 Panadol x 2 orally for headaches
Signature (Barbara Kennedy)
Surgisponge shower + L foot re bandaged NBM HPU U/A NAD. Legs rem elevated.
B Kennedy (Signature)
Chaplain
Initial visit Arthur Patrick (Signature)
1515 RTW @ 1400. Post op sponge. HNPU. Bandages to feet clean dry intact. Vas obs satisfactory. PCA used sparingly on RTW pain fairly well controlled. IV TKVO. Tolerating water. Feet elevated
Signature (B. Kennedy)
(Page 76 - 17/01/96)
2200 Patient feeling very drowsy this evening. IV therapy in situ with antibiotics given as per MR 28. PCA insitu with patient using well to control pain – pressing button many times earlier this shift but less towards evening. Vascular observations satisfactory. Post op observations complete. Temp 375 at 2200 hours. Voided 300 mls at 1600 hours. Tolerating clear fluids well O2 sats 97-98% on air. Bandages dry + intact
Signature (K Perkins)
18.01.96 Night Report
0025 x 2… Panadol orally for headache
- Signature (R Reye) Student Nurse
Pt slept intermittently. Restless most of night. IV patent and PCA being used adequately. Bandaged feet dry, circulation good. No problems.
– Signature (E King)
Pt still complaining of headache
- Signature (E King)
0930 ORTHO – Pt satisf. post.op. Continue foot elevation, IV antibiotic. For r/v of wounds Fri am? discharge.
Signature (Rod Brooks)
0945 Panadol x 2 given for headache.
Signature (K Perkins)
Patient states headache is in both sides of head and in lower back of head. CMO contacted re headaches and will review patient later.
Signature (K. Perkins)
18/01/96 Cutter (CMO)
C/O persistent headache for ? ? 48 hours.
Commenced post – accident
Occipito-parietal ® = (L)
Vision not affected
No photophobia, nausea, vomiting
Position affects +
- Variable in severity – mostly mild
Avg x 1 headache / month at home – but “different from this”
Drinks coffee ++ usually
(Page 77)
IMP classic “Tension headache”
for: fluids
- analgesia
relaxation
caffeine
Signature (Dr Cutter)
1445 Condition satisfactory. Patient very restless, anxious in early hours of shift. Complaining of headache and concerned re the same. CMO notified and reviewed patient (refer to above notes). Patient given reassurance, fluids encouraged and coffee given to patient. Patient more relaxed in p.m. IV insitu TKVO for antibiotics. PCA in situ – patient using minimally to control pain. Vascular observations satisfactory. Observations – pt febrile 38 at 1000 and 375 @ 1400 hours. Encouraged not to swing legs over bed. Tolerating fluids well and voiding large amounts. Tolerating diet. Bandages to both feet intact. Hygiene needs attended. Patient currently in better spirits today and states he feels “a lot better”.
Signature (K. Perkins)
2000 Panadol x 2 given orally to relieve pain temperature.
Signature (Fiona McClure)
2126 Mr Spasovic has been alert and orientated this shift. Tolerating diet and fluids. Observations stable as per MR2 except temperature 38 C at 1800, 38.8C at 2000 above medication given. Foot dressings dry and intact. Feet remain elevated. I.V. insitu to keep vein open for antibiotics. PCA insitu patient using moderately. Patient left resting
Signature (Lipman)
2230 Back rub and pressure care given to settle.
Signature (Lipman)
19.1.96 Night Report
PT slept in short intervals. IV remains patent. PCA being used adequately. Dressing intact.
Signature (E King)
0845 Panadeine Forte x 2 given orally for pain relief. Written in error
Signature
0845 Panadol x 2 given orally for pain relief.
Signature (Kerryn Chappell)
(Page 78 – 19/01/96)
0930 ORTHO – wounds seen – both clean + dry
Low-grade temp noted. Headaches + light headed
For- cease PCA
- Oral antibiotics – Remove IV
- Aspirin if still has headaches later this a.m.
- up on crutches this p.m. NWB on (L) foot
- prob. discharge Sat a.m.
Signature (Rod Brooks)
1205 Physiotherapist
Mobilisation commenced NWB on (L) ft with
- FASF and assistance one. Hopped to corridor then returned to bed. c/o throbbing (L) ft. Will try with crutches this p.m.
Signature (Karen Van de Schaar)
1230 Mr Spasovic has had a restless morning. Patient complained of headaches and dizziness. Towel bath given. Temperature was 37.8 C at 0815 hours and Panadol given by RN, with relief of high temp. Voiding well. Tolerating fluids and food fine. Bowels unopened. Observations are now satisfactory as per MR2. Patient is now resting comfortably and nil further complaints voiced to me.
Signature (Carolyn Race - Student Nurse)
1440 Physiotherapist
- Has been mobilising with crutches. Managing relatively well. May mobilise indep. short distances. Will try with stairs tomorrow.
Signature (Karen Van de Schaar)
Addit Patient cheerful and using crutches to mobilise.
Signature (Carolyn Race – Student Nurse)
1500 - IV + PCA removed 0940 – Headache gone @ 1100 – Nil c/o pain in feet.
Wounds redressed in a.m. Cleansed with hydrogen peroxide. Wounds appear clean. Release applied, velband and bandaged.
Signature (Julie Birrell)
Signature (K Perkins)
2230 Patient up as desired. Both feet rebandaged. Analgesia refused. Temp 372 C at 2200 hours
Signature (Caroline Kalnoky)
(Page 79) – 20/01/96
20.1.96 Night Report
Patient sleeping when observed.
Signature (Pat Tenorio)
0915 Seen by Dr Brooks. Home today see Dr in 2 weeks.
Signature (Sandra Hunt)”
(a) The first plaintiff Mr Spasovic2 . Evidence of the Plaintiffs, their Son Aleksandar and their Relatives and Friends
82 Mr Spasovic made two statements which were admitted into evidence, a first statement dated 15 June 1996, that is about five months after his stay in the Hospital, and a second statement dated 5 September 2001, that is more than five and a half years after his stay in the Hospital.
83 The first statement was written by Mr Petar Dobrich, the husband of Mr Spasovic’s wife’s sister, who is a solicitor “after having discussions and questions with Mr Spasovic”.
84 In paragraph 1 of his first statement Mr Spasovic said that he remembered hurting his feet and going “somewhere” where “they looked at my legs”. He remembered his feet hurting a lot but “I don’t remember anything else hurting”.
85 In paragraph 2 Mr Spasovic said inter alia:-
- “I hated the ‘place’. I didn’t like the food… ‘can’t remember if I’d made any telephone calls. I remember drinking drinking orange juice – no milk – no coffee – no alcohol. I can’t remember if any doctor(s) came to see me”.
86 In paragraph 3 Mr Spasovic said inter alia that he remembered “leaving the place. I wasn’t well…I don’t remember having pain or not”.
87 In paragraph 4 Mr Spasovic said inter alia “I remember my Slava – I remember pain – my feet hurt – can’t recall other pain… I remember perspiring profusely and having to change my shirt. When the priest was there I was standing up. I felt pain and very uncomfortable my feet hurt”.
88 The second statement by Mr Spasovic of 5 September 2001 was prepared by one of the lawyers acting for him in these proceedings.
89 In paragraph 4 of his second statement Mr Spasovic said that “as to the events of 16 January 1996 and following, my memory for that period is very poor. This is an account of what I can remember”.
90 In paragraphs 5 to 8 of his second statement Mr Spasovic gave an account of the ladder slipping at his home, his feet being cut, going to the Castle Hill Medical Centre and then going to the Hospital.
91 Paragraphs 9 to 13 of Mr Spasovic’s second statement were in the following terms:-
- “9. I do not have any recollection as to the events of the next day (Wednesday 17 January 1996).
- 10. I recall that at some time during my admission to the hospital I was seen by a Dr Brooks on two occasions, and that I had a headache at that time.
- 11. I remember having headaches during my admission, and that I was crying with the pain. I also remember that I was given morphine.
- 12. I remember that I was initially in a room with two beds, and the person in the other bed was talking all the time to someone, which I found disturbing, and so I was moved to a private room.
- 13. I remember that the food was terrible”.
92 Paragraphs 15, 16 and 17 of Mr Spasovic’s second statement were in the following terms:-
- “15. Saturday 20 January 1996 was my ‘slava’, or name day. The slava is an important annual family day of celebration in my culture. My memory of that day is that I was to go home from hospital on that day, and had packed my belongings in preparation for that. I still had a headache, and someone gave me some Disprin to take and some to take with me when I left.
- 16. Aleksandar drove me home. When I got home I still had my headache. I was greeted by my wife Kris. Family and friends arrived, and later the priest of our church arrived. He held the name day service in our dining room I became really hot and sweaty, and my shirt was soaked through with perspiration. I changed my shirt.
- 17. I remember being very thirsty, but when I went to drink something I couldn’t hold the glass properly and spilled it on the floor. I wanted to go to the toilet, and was helped upstairs by Kris and some others. The last thing I remember that day is being helped to bed”.
93 Mr Spasovic gave only brief oral evidence in chief, most of which did not directly relate to his stay at the Hospital. In his evidence in chief the following question and answer occurred:-
- “Q. Do you have any further memory in hospital?
A. No. It kind of looked at heads a lot, strong strong crying, and Sister Raleigh (?) he came to me, and Dr Brooks I had once, I don’t know, once and that’s all”.
94 In cross-examination by counsel for the Hospital Mr Spasovic agreed that between the Court proceedings being commenced in 1997 and the making by him of his second statement he had discussed with his wife what was happening in the case, the evidence his lawyers had collected and the reports which had been obtained from the various medical experts.
95 Mr Spasovic agreed that he had no memory at all of the Saturday morning, when he left the Hospital but then said that “I don’t know”. As to the time he was in the Hospital on 17, 18 and 19 January “I don’t know much at all”.
The following questions and answers occurred in the cross-examination:-He did not remember having any telephone conversations with his wife while he was in the Hospital.
- “Q. And you don’t remember whether you had a headache or not, do you?
A. Yes, I do. Headache, headache and headache all the time.
- Q. Not when you left the hospital, did you?
A. No, no, no”.
96 In cross-examination by counsel for the second and third defendants Mr Spasovic, when the assertion in his first statement “I don’t remember anything else hurting” was put to him, said “Yes, because of morphine, morphine, morphine”. Elsewhere in the cross-examination he said that his wife had told him that he had been given morphine while he was in the Hospital. He agreed that his memory of the events of 16 January 1996 and following was “very poor”. However, he asserted that his memory had slowly come back to an extent. Mr Spasovic asserted that he had been crying with pain when a doctor was present, who he thought was Dr Brooks, but he then said that he did not know if he remembered crying in front of a doctor. He maintained “I know I cried, cried, cried, cried”.
97 Mr Spasovic said that he remembered Dr Brooks coming to see him but he did not remember Dr Cutter. He remembered telling Dr Brooks that he had a headache but could not remember telling him anything else.
98 Mr Spasovic at first agreed that, after he had gone off taking morphine on the Friday his headaches had gone away altogether but he later said that he could not remember whether this had happened.
99 As regards Saturday 20 January Mr Spasovic agreed that he could not remember whether he had had a headache when he left the Hospital and he gave conflicting answers about whether he had had a headache on the Saturday earlier than about 4 or 5 o’clock in the afternoon.
(b) Mrs Spasovic
100 Mrs Spasovic made two statements which were admitted into evidence, a first statement made on 7 April 1996 and a second statement made 1 September 2001. Objection was taken by counsel for the plaintiffs to the first document being described as a “statement” but it is a convenient term to use, without pre-judging the purpose for which the document was prepared.
101 In paragraph 4 of her first statement Mrs Spasovic described events at the Hospital on the night of 16 January 1996. She said that her husband was “tired but fully conscious and did not complain of headache”.
102 In paragraph 5 of her first statement Mrs Spasovic said that she had visited her husband on the morning of 17 January before he went to the operating theatre. She said that “he was slightly irritable and drowsy, which I attributed to possible pre-medication. He did not complain of any headache and I stayed with him until he went to theatre at about 11 a m.”
103 In paragraph 6 Mrs Spasovic said that she had visited her husband on the evening of 17 January, after his operation. Mr Spasovic appeared “drowsy, withdrawn and confused. He seemed unhappy with his surroundings and when visitors came, he said ‘I don’t have any food to offer you’, further demonstrating his confusion. However, he did not complain of headache…”.
104 In paragraph 7 Mrs Spasovic said that on the morning of 18 January Mr Spasovic telephoned her from the Hospital and asked her to bring some coffee to the Hospital, when she came to visit him. “He said he had severe headache and that it had been suggested to him by the resident medical officer that his headache may have been due to caffeine withdrawal…he stated that one of the nursing staff had been able to organise a cup of caffeinated coffee for him for the time being”.
105 In paragraph 8 of her first statement Mrs Spasovic said that she visited her husband on the afternoon of 18 January “he complained of being tired and still having a headache. Despite having caffeinated coffee and being on the morphine drip, Rajko’s headache persisted…”.
106 In paragraph 10 of her first statement Mrs Spasovic said that on the morning of Friday 19 January her husband telephoned her a few times. “Each time he described headache that was severe enough to make him cry”. He did not express any interest in the forthcoming Slava celebration, which was out of character for him. Mrs Spasovic told her husband “to tell the Hospital staff of his headaches”.
107 In paragraph 11 Mrs Spasovic said that on the afternoon of Friday 19 January her husband telephoned her. Mr Spasovic said that he had spoken to “the resident medical officer. He said that this doctor had suggested the headaches may have been due to morphine or its withdrawal. Rajko was at this time asking about food, which made me presume he was not severely nauseated with his headaches”.
108 In paragraph 12 Mrs Spasovic said that she and her son Aleksandar visited her husband on the Friday night. “Rajko stated that he still had headache and even though he was not crying at that point in time, he again said that the headaches had been severe enough to make him cry at times. He did not describe any nausea. He looked pale and seemed darker under his eyes than usual… he was trying to walk with the use of crutches but was unsteady”.
109 In paragraph 13 of the statement Mrs Spasovic said that on the morning of Saturday 20 January her husband telephoned three times to remind their son Aleksandar to pick him up from the Hospital. She said “Rajko seemed agitated in each of these telephone calls but did not make mention of his headaches”.
110 In paragraph 14 Mrs Spasovic said that after Mr Spasovic arrived home (at about 11.30 a m.) he immediately asked for some Disprin, as he still had a headache. While Mr Spasovic was on his feet he seemed very unsteady, which Mrs Spasovic attributed to his bandaged feet. He seemed uninterested in the Slava celebration.
111 In paragraph 15 and the following paragraphs Mrs Spasovic said that the parish priest arrived at about 12.30. While Mr Spasovic was standing in prayer, he broke into a profuse sweat, which was severe enough to require him to change his shirt. Mr Spasovic sat at the dining table and ate lunch over the next hour or so but he had difficulty coordinating his knife and fork. At about 2 o’clock in the afternoon Mr Spasovic complained that he still had a headache and he lay down on a couch. At about 4.30, after Mr Spasovic had had some rest, he was offered a cup of coffee but he spilt it. Mr Spasovic said that he had a bad headache which was worse on the left side. He was unable to hold a glass of water so that he could take some Disprin. He had to be assisted up the stairs to go to the toilet. After using the toilet he was more unsteady on his feet, could not speak and became semi-conscious. Mrs Spasovic telephoned an ambulance.
112 Much of Mrs Spasovic’s second statement is substantially similar to the corresponding parts of her first statement. However, there is some fresh material in the second statement.
113 In paragraph 14 of her second statement Mrs Spasovic said that on the morning of Wednesday 17 January she had a telephone conversation with Mr Spasovic at about 7.30, in which he said “I’ve had a headache”.
114 In paragraph 20 of her second statement Mrs Spasovic said that on the evening of 17 January her sister had also visited Mr Spasovic and she said that she had said to her sister on the evening of 17 January “Rajko is pretty drowsy. He seems withdrawn and confused”. She said that on the Wednesday evening her husband, who had been sharing a room at the Hospital, was moved to a single room.
115 In paragraph 22 of her second statement Mrs Spasovic said that on the morning of Thursday 18 January her husband telephoned her several times saying that he had a “terrible” headache and she told her husband to tell “the Hospital staff” about the headache.
116 In paragraph 24 of her second statement Mrs Spasovic said that in a later telephone conversation on 18 January Mr Spasovic said “I’ve told the doctor about the headache and he told me that it may be due to the morphine”.
117 In paragraph 25 Mrs Spasovic said that in a later telephone conversation on 18 January Mr Spasovic had said “the resident doctor’s been to see me. I’ve got such a bad headache that it makes me cry”. He said that the doctor had said “it could be caffeine withdrawal”. Mr Spasovic said “the nurse has given me a cup of caffeinated coffee but it hasn’t made any difference. Could you bring me some coffee when you come?”
118 In paragraph 26 of her second statement Mrs Spasovic said that after she arrived at the Hospital at about 2-2.30 on the afternoon of Thursday 18 January “I had a conversation to the following effect with a male doctor at the Hospital.
- “I. I’m concerned about my husband. He’s not his usual self, and he’s complaining of severe headaches. Is that normal 2 days after surgery?
- He: Look, it’s the caffeine withdrawal, he hasn’t had any coffee for 2 days.
- I: But he doesn’t drink a lot of coffee normally anyway. Are you sure that’s right?
- He: Look, don’t worry, I’m sure it’s the caffeine withdrawal and that there’s nothing to worry about”.
- I felt reassured by this conversation”.
119 In paragraph 27 of her second statement Mrs Spasovic said that when she entered her husband’s room on 18 January, he was being seen by a physiotherapist. Her husband said “I’m really tired. This headache is like nothing I’ve ever had”.
120 In paragraph 28 of her second statement Mrs Spasovic said:-
- “On speaking to him I formed the view that his behaviour was not as it normally was. It was as though he had been drinking. He seemed disoriented. He was starting sentences and not finishing them, and which didn’t make sense. What he was saying didn’t seem to correlate with anything. He didn’t ask how our son was. He seemed totally out of character”.
121 In paragraph 29 of the second statement Mrs Spasovic said that after the physiotherapist had left, her husband said words to the effect “I’ve still got this headache”.
122 In paragraph 31 of her second statement Mrs Spasovic said:-
- “I spoke to the ward sister that evening, as I was worried about Rajko, and we had a conversation to the following effect:
- ‘I: I’m concerned that my husband’s headaches have been continuing for such a long time after the anaesthetic. He doesn’t get headaches, he’s never suffered from headaches, let alone one that lasts continuously for two days
- She: It’s probably caffeine withdrawal. The doctor has been to see him I don’t think there’s anything to worry about’”.
123 In paragraph 35 of her second statement Mrs Spasovic said that when she visited her husband on the night of Friday 19 January, her husband “wasn’t speaking normally, he was speaking only one word at a time”. Her husband said, “This headache is so bad it’s making me cry”.
vii. Reduced temperature control and sensation on the right hand side of the body;
viii. Reduced static and dynamic balance;
ix. Restricted walking speed and tolerance;
x. Restricted visual field;
xi. Diminished hearing;
xii. Diminished capacity to process information;
xiii. Cognitive deficit;
xiv. Diminished capacity and, in most cases, incapacity for enjoyment of pre-injury activities across the spectrum including recreation, personal and inter-personal;
xv. Incapacity for pre-accident employment on the open labour market;
xvi. Diminished capacity to perform certain health care and personal care tasks such as combing the back of his head, changing his contact lenses, putting on a watch, cutting his fingers and toe nails and many other personal tasks;
xvii. Psychiatric sequelae.”
816 Leaving aside items xiv, xv and xvii, which are consequential disabilities, items ii, xii, and xiii seem to me to be included in the plaintiff’s speech deficits or dysphasia and items iii, iv, v, vi, vii, viii, ix, x, xi and xvi seem to me to be included in the plaintiff’s right sided weakness.
817 It was common ground between Professor Dorsch and Professor Morgan that, even if the plaintiff had been operated on earlier, his right sided weakness would not have been any better, that is the plaintiff was not any the worse off, so far as his right sided weakness is concerned, because he was operated on about four hours later than he would have been if he had remained at the Hospital.
818 The plaintiff’s right sided weakness is severe. I find that it is accurately described in Dr Terenty’s first report as follows:-
- “He has a right hemiplegia with right sided facial weakness, the right upper limb held in flexion with flexion contractures of the elbow and shoulder. There is no useful function in the right hand. He has a very hypertonic right leg with no knee flexion or dorsiflexion. The spasticity and contractures of the right side of the body make the deep tendon reflexes not particularly brisk but the right plantar response is still extensor. There is a right sided hemisensory alteration”.
819 I also accept Dr Terenty’s opinion that there will not be any improvement in the plaintiff’s right sided weakness.
820 I have already held that, if the plaintiff had been operated on earlier, his speech deficits would have been better, that is the plaintiff is worse off, so far as his speech deficits are concerned, because he was operated on about four hours later than he would have been if he had remained at the Hospital. If the plaintiff had succeeded in establishing liability, he would have been entitled to damages to compensate him for the extent to which his speech deficits were worse by reason of a defendant’s negligence. I did not, however, in deciding that the plaintiff had established the ninth step in his case on liability, determine how much worse off the plaintiff has been, so far as his speech deficits are concerned, because he was operated on about four hours later than he would have been if he had remained at the Hospital.
821 Counsel for the plaintiffs submitted that in the assessment of damages I should accept Professor Dorsch’s evidence that, if there had been an earlier operation, the outcome, so far as the plaintiff’s speech deficits were concerned, would have been about 50 per cent better, that is the plaintiff was 50 per cent worse off because there had not been an earlier operation.
822 I have noted that Professor Brew, while considering that if there had been earlier surgery there would have been “significantly less” speech deficit, said that he could not be any more precise about the amount of the deficit. The defendants’ expert witnesses considered that earlier surgery would not have produced any better outcome.
823 I do not consider that I should find that, if there had been earlier surgery, the outcome for the plaintiff, so far as his speech deficits are concerned, would have been as much as 50 per cent better. It was apparent from Professor Dorsch’s evidence that the figure of 50 per cent which he gave (along with other figures within a wide range) was not a figure about which he felt any degree of certainty. Part of the basis of his opinion was a reliance, which I have found to be misplaced, on the article “Thresholds of Focal Cerebral Ischemia in Awake Monkeys”.
824 I find that, if there had been an earlier operation, the outcome, so far as the plaintiff’s speech deficits are concerned, would have been significantly better than it has been but not by as much as 50 per cent.
825 The speech deficits the plaintiff has suffered are severe. They were exhibited while the plaintiff was endeavouring to give oral evidence. Although I find that the plaintiff’s speech has improved, to a very limited extent, since Dr Terenty saw him on 16 November 1998, I consider that her statement in her report of 17 November 1998 that the plaintiff “still has a great deal of difficulty talking. He can understand simple sentences but complex and rapid speech is not understood” is still true. Even if the plaintiff’s speech deficits had been only half of what they have been and are, his speech deficits would still have been serious.
826 In the schedule of claims for damages annexed to the plaintiff’s written submissions, claims for damages were made on the basis of a comparison between the plaintiff as he was before he suffered the major haemorrhage and the plaintiff as he has been and is, having suffered the major haemorrhage. It was accepted by counsel for the plaintiffs that this was not a correct basis on which to assess damages and that a correct basis would be a comparison between the plaintiff as he would have been if he had been operated on earlier than he was and the plaintiff as he has been and is, having been operated on at the time at which he was, so as to determine how much the worse off the plaintiff has been and is through not having been operated on earlier than he was.
827 However, it was submitted by counsel for the plaintiff that the figures in the schedule of claims could be used as a starting point in assessing what would be an appropriate award of damages. It was submitted that the plaintiff’s dysphasia was more serious for the plaintiff than his hemiparesis, that 80 per cent of his total disabilities should be apportioned to the dysphasia and only 20 per cent to the hemiparesis and that, adopting Professor Dorsch’s estimate of the extent to which the plaintiff’s speech would have been saved by earlier surgery, 50 per cent of 80 per cent of the plaintiff’s total disabilities would have been saved by earlier surgery, so that the plaintiff should receive 40 per cent of the amounts claimed in the schedule.
828 I do not consider that these submissions should be accepted. I have not accepted Professor Dorsch’s estimate of the extent to which the plaintiff’s speech would have been saved by earlier surgery. However, more fundamentally, as regards many heads of damages, for example past and future economic loss and past and future needs for care and services, the plaintiff is not much worse off as he is, than he would have been if he had suffered all of the hemiparesis he has suffered but only the greater part (or even only half) of the dysphasia. Even if the plaintiff had suffered only the hemiparesis, he would have sustained a very serious loss of earning capacity and would have had many of the same needs for care and services.
THE PROCEEDINGS BY THE SECOND PLAINTIFF MRS SPASOVIC
829 The proceedings by Mrs Spasovic for damages for nervous shock fail, because she, like her husband, has not succeeded in proving that any of the defendants was negligent in providing medical assessment, treatment and advice for her husband.
830 If the second plaintiff had succeeded in proving that one or more of the defendants had been negligent and that in consequence of the negligence she had suffered nervous shock, that is psychiatric injury, as distinct from normal grief (see Gifford v Strang Patrick Stevedoring Pty Limited (2003) 77 ALJR 1205 at 1207 (3) per Gleeson CJ), the damages recoverable by her would have been limited to the damages required to compensate her for any additional nervous shock she suffered, because her husband suffered all of the hemiparesis and all of the dysphasia he suffered, as distinct from suffering all of the hemiparesis and only half, or rather more than half, of the dysphasia. Any such additional nervous shock would, in my opinion, have been small.
831 On the question of whether the second plaintiff did suffer, and might in the future suffer, nervous shock as distinct from normal grief, three psychiatrists gave evidence, Dr Walden and Dr Smith (called by the second plaintiff) and Dr Skinner (called by the first defendant).
832 Dr Walden first saw Mrs Spasovic on 8 December 1998 and furnished a report dated 9 December 1998. In the part of her report headed “Diagnosis and Opinion” Dr Walden said:-
- “After Mrs Spasovic’s husband suffered a cerebral haemorrhage, she developed symptoms suggestive of a Major Depressive Illness. She had a marked weight loss of 6 to 7 kilograms and six months of initial and terminal insomnia, and irrational feelings of guilt about her husband’s condition.
- Mrs Spasovic is a resilient woman who pushed herself to manage the events surrounding her husband’s hospitalisation and rehabilitation and felt a strong responsibility to keep the family going. She did not seek any treatment for herself at this stage. Her history suggests her symptoms resolved spontaneously over a period of six months or so.
- As it has become obvious that Mrs Spasovic’s husband will not regain his former level of function, she has become increasingly depressed again. She describes feeling depressed with the onset of tearfulness, sleep disturbance, appetite disturbance, poor concentration, the onset of palpitations, loss of pleasure in previous activities, and a reduced libido. She is not suicidal. These symptoms satisfy the DSM-IV Diagnostic Criteria for the diagnosis of Major Depressive Disorder”.
833 Dr Skinner saw the second plaintiff on 29 March 2000. In her report of 31 March 2000 Dr Skinner expressed inter alia the following opinions:-
- “Mrs Spasovic is not suffering from a psychiatric disorder. She is experiencing a grief process as she goes through a period of adjustment to her altered situation following her husband’s unfortunate cerebral haemorrhage and ongoing disabilities
- Her prognosis is that she will gradually adjust to her altered situation. Mrs Spasovic has strong personality resources and has coped well so far. She has to deal with a tragic situation and there will always be emotional pain as she deals with this situation but she will gradually make the psychological adjustments necessary to cope”.
834 The second plaintiff was next seen by Dr Smith on 1 August 2001. In his report dated 7 August 2001 Dr Smith said that in his opinion Mrs Spasovic demonstrated diagnostic criteria for a major depressive disorder.
835 The second plaintiff was finally seen again on 6 June 2002 by Dr Walden. In her report dated 6 June 2002 Dr Walden expressed the opinion that Mrs Spasovic did not then have any psychiatric disorder. Mrs Spasovic did not, when Dr Walden saw her, fulfil the criteria for a major depressive illness. Dr Walden expressed the opinion that Mrs Spasovic had probably had a recurrence of a major depressive illness about six months previously. Dr Walden considered that the major precipitant for the most recent episode of depression had been Mrs Spasovic’s difficulty in coping with her husband’s condition. Dr Walden considered that it was likely that in the future Mrs Spasovic would have fluctuating symptoms of depression.
836 In oral evidence at the trial Dr Walden said that Mrs Spasovic had had three episodes of a major depressive disorder and, having had three such episodes, the chances of her having a fourth episode were greater than 90 per cent. Dr Walden accepted that Mrs Spasovic has strong personality resources and has coped very well.
837 In her oral evidence Dr Skinner was attacked on what was said to be her incorrect use of the word “grief” as a psychiatric term but she was able to justify her use of the term by reference to the latest edition of a standard psychiatric text. Dr Skinner accepted that Mrs Spasovic had had periods when she was “quite depressed”. Dr Skinner pointed out that Mrs Spasovic was an intelligent woman, that she had the support of her sons, that she had been able to continue in work which was intellectually demanding, that she had taken over control of the family and that she had been able to participate in activities and interact with other persons, whereas a person suffering from a depressive illness would lack that sort of initiative and motivation.
838 In oral evidence Dr Smith reiterated that in August 2001 Mrs Spasovic had been suffering from a major depressive disorder, that he would have expected that disorder to have continued at least up until June the following year and, indeed, that he could not see Mrs Spasovic’s condition improving.
839 Of the three psychiatrists I was least impressed by the evidence of Dr Smith, who I consider overstated Mrs Spasovic’s difficulties. Where Dr Smith’s evidence is inconsistent with, or at least difficult to reconcile with, Dr Walden’s evidence, I would prefer Dr Walden’s evidence.
840 I accept that between 1996 and 2001 Mrs Spasovic suffered three distinct episodes of a major depressive illness, the longest of which lasted about six months. During these episodes Mrs Spasovic was able to continue working and to look after her family. She has not since had any psychiatric disorder. Notwithstanding that Mrs Spasovic will be in continual contact with her seriously handicapped husband and the evidence of Dr Walden about Mrs Spasovic’s prognosis, I consider it is unlikely rather than likely that Mrs Spasovic will have any future episodes of psychiatric depression. As all the psychiatrists agreed, she is a person of strong personality who has in general coped well.
CONCLUSION
841 I consider that there should be verdicts for all the defendants as against both plaintiffs.
Last Modified: 09/22/2003
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