Stapley v Fisher
[2003] WADC 278
•17 DECEMBER 2003
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: STAPLEY -v- FISHER [2003] WADC 278
CORAM: MARTINO DCJ
HEARD: 4-7 NOVEMBER 2003
DELIVERED : 17 DECEMBER 2003
FILE NO/S: CIV 3150 of 2001
BETWEEN: GLENN ALLAN STAPLEY
Plaintiff
AND
PHILLIP FISHER
Defendant
Catchwords:
Negligence - Medical practitioner - Warning of risk of damage to vision in surgery - Whether patient would have undertaken surgery if adequately warned - Whether surgeon negligent in carrying out the surgery
Legislation:
Nil
Result:
No adequate warning given
Surgery would not have been undertaken if adequate warning had been given
No negligence in carrying out surgery
Representation:
Counsel:
Plaintiff: Mr G Droppert
Defendant: Mr J R B Ley
Solicitors:
Plaintiff: Hoffmans
Defendant: Clayton Utz
Case(s) referred to in judgment(s):
Chappel v Hart (1998) 195 CLR 232
Ellis v Wallsend District Hospital (1989) 17 NSWLR 553
Rogers v Whitaker (1992) 175 CLR 479
Rosenberg v Percival (2001) 205 CLR 434
Tai v Saxon, unreported; FCt SCt of WA; Library No 960113; 8 February 1996
Case(s) also cited:
Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542
MARTINO DCJ:
Introduction
The plaintiff ("Mr Stapley") was born on 8 January 1970. He carries on a swimming pool retail supply business. From approximately early 1999 Mr Stapley developed pain down the left side of his face intermittently. He was prescribed antibiotics which remedied the problem temporarily. He found that he developed pressure under the left eye and pain in the left sinus and in a tooth on the left side when scuba diving. Mr Stapley had commenced that sport in approximately early 1998. He saw a dentist for the tooth pain. As a result of advice given to him by the dentist Mr Stapley saw his general medical practitioner who arranged a CT scan and referred him to the defendant ("Mr Fisher"). Mr Stapley decided to cease diving until the problem was resolved.
Mr Fisher is an ear, nose and throat surgeon. On 11 August 1999 Mr Fisher saw Mr Stapley in Mr Fisher's rooms. Mr Fisher spoke to Mr Stapley and carried out an examination on him. After seeing Mr Fisher, Mr Stapley decided to have surgery performed on his left sinus by Mr Fisher. The surgery was due to take place in September 1999, however due to an unrelated medical condition the surgery did not take place that month. Mr Fisher performed the surgery on 10 March 2000. When carrying out the surgery Mr Fisher found a polyp which he removed.
As a result of the surgery Mr Stapley suffered the following injuries:
1.Post‑operative double vision;
2.Disruption of the left orbital floor with associated displacement of the left orbital and left interior orbital muscles;
3.Lobulated soft tissue opacity adjacent to the left orbital floor on the antral side together with evidence of peri‑orbital emphysema;
4.Swelling and displacement of the left inferior oblique and inferior rectus muscles; and
5.Enophthalmos or falling back of the eye into the socket.
Mr Stapley required plastic surgical repair of the left orbital floor with a cranial bone graft.
In the statement of claim Mr Stapley claimed that Mr Fisher was negligent in his post‑operative care of Mr Stapley. In his opening address counsel for Mr Stapley informed me that Mr Stapley was not pursuing a claim that Mr Fisher was negligent in his post‑operative care. The particulars of negligence in the statement of claim which were not concerned with post‑operative care were that Mr Fisher was negligent in:
1.Intra operatively disrupting the floor of the left orbit resulting in dehiscence of the left intra orbital contents, swelling of the inferior intra orbital muscles and post‑operative diplopia;
2.Intra operatively damaging the orbit (ie. to the lamina papyracea) in the process of performing the surgery and/or the polypectomy;
3.Intra operatively damaging and scarring the inferior orbital muscles, the inferior rectus and oblique muscles resulting in double vision;
4.Failing to advise Mr Stapley of the risk of an intra operative iatrogenic disruption of the orbital floor resulting in dehiscence of the left intra orbital contents, swelling of the inferior orbital muscles and post‑operative diplopia; and
5.Failing to advise the plaintiff of the risk of intra operative damage to the lamina papyracea.
The lamina papyracea is a thin bone near the orbit. Damage to the lamina papyracea was not claimed by Mr Stapley as an injury suffered by him as a result of the surgery. The plaintiff's claim at trial concerned the disruption to the floor of the orbit and double vision.
Mr Fisher admits that as a result of the surgery Mr Stapley suffered the injuries listed in par 3 of these reasons and required repair of the orbital floor but denies that he was negligent.
Before trial the parties agreed the amount of damages at $65,000. I was not told how these damages were allocated, or if there was any agreement as to how they were allocated.
The issues at trial were:
1.What warning was given by Mr Fisher as to the risk of impairment to Mr Stapley's vision being caused by the surgery;
2.Whether the warning that was given adequately explained the risk;
3.If the warning was not adequate, whether Mr Stapley would have agreed to the surgery even if an adequate warning had been given; and
4.Whether Mr Fisher was negligent in disrupting the floor of Mr Stapley's left orbit when performing the surgery.
The consultation of 11 August 1999
Mr Stapley saw Mr Fisher for the first time on 11 August 1999. In Mr Fisher's waiting room he completed a patient information form.
Mr Stapley's evidence was that when he saw Mr Fisher, Mr Fisher asked him what his problems were and how they were affecting him. They had a conversation for two or three minutes and then Mr Fisher took Mr Stapley to another part of his office where he looked into Mr Stapley's left nose with the assistance of a light and an instrument similar to tweezers. After the examination Mr Fisher told him:
"... that the best option that he could see would be to have an antrostomy, which he described to me at the time was - basically, the antrostomy is a drain from the bottom of the sinus cavity back through to the throat, that that was blocked, that the antrostomy itself was to shorten the drain and enlarge it so it would drain more freely.
Did he explain to you where the surgery would take place or what would happen post‑operatively?---Yes. After we then went back to his main desk, we sat down, he described that what is more than likely when I wake up from the procedure, if I elect to have it, then I would have - the nasal cavity was more than likely going to be packed with a lot of gauze or that sort of material, that there could be reasonable amounts of bleeding, that there could be - I think he called it crustations or - not crusties or scabs of sorts, is my recollection, that there is the chance of possible infection, that when the materials were removed it could be quite painful or uncomfortable and that the nose may have to be repacked if the bleeding recurs.
Any discussion about medication that may be or may not be required?---Yes. I think he described that after the procedure I would have - I think a nasal wash or a nasal spray, I think it was called Fess or something like that that I had to introduce into the sinus cavity and rinse it on a daily occurrence for a period of approximately 3 to 4 days afterwards. Should an infection occur then there may be antibiotics that may need to be taken.
Right. Was anything else said to you after he had explained those things to you?---No. Basically from there he said that the secretary would have a list of the fees associated with the procedure, also forms for me to sign. I was then escorted back out into the waiting room and the secretary at the counter gave me the forms to have a read and sign with the schedule of fees, etcetera." (T25 ‑ T26)
In the waiting room Mr Fisher's secretary gave to Mr Stapley a document. The first page of the document contained instructions of what Mr Stapley was to do before surgery and contained information about fees for the surgery. Mr Stapley signed an acknowledgment of his responsibility to pay the fees.
The reverse of the document was headed "ETHMOIDECTOMIES, ANTROSTOMIES & POLYPECTOMIES". It contained some general information about the operations and information about post‑operative procedures. It then contained the following:
"COMPLICATIONS
1.BLEEDING;
There is often minor bleeding or blood stained mucus during the 1st week. Very occasionally the nose may need re‑packing.
2.INFECTION:
Infection is not commoc (sic) post‑operatively unless a cold is caught.
3.INTRA ORBITAL BLEEDING:
Very rarely, bleeding can occur into the eye socket during ot (sic) immediately after surgery. If this occurs then the eye socket needs to be drained to prevent possible long term visual problems.
4.CSK (sic) LEAK:
Occasionally the fluid from around the brain leaks into the sinus's (sic) post‑operatively. This usually settles spontaneously - on rare occasions a second procedure is needed to seal the leak.
5.ANOSMIA:
Many patients requiring sinus or polyp surgery have a disturbed sense of smell. This is sometimes improved by surgery, very extensive surgery can decrease the sense of smell temporarily or permanently."
Mr Stapley gave the signed copy of the document to Mr Fisher's secretary and retained a copy. His evidence was that he did not know what an ethmoidectomy is, that he had no discussion with Mr Fisher about a polypectomy and that Mr Fisher had discussed with him bleeding and the possibility of infection but had not mentioned intra orbital bleeding, CSK leak or anosmia. Mr Stapley's evidence was that as Mr Fisher had not mentioned those matters to him he did not think that they related to him. His evidence was that he spent no more than 10 minutes with Mr Fisher. He made a decision to have the operation either on the day of his initial consultation with Mr Fisher or the next day.
Mr Fisher's evidence was that after speaking to Mr Stapley, examining him and inspecting a CT scan that had been taken earlier he formed the opinion that Mr Stapley had an obstruction of the left osteomeatal complex which was causing acute recurrent sinusitis and painful sinus squeeze when diving. His evidence was that he recalled seeing Mr Stapley and there were two things that made the appointment memorable for him. The first was that Mr Fisher had engaged in scuba diving when he was younger and he sympathised with Mr Stapley's problem. The second was that Mr Stapley was his first patient after lunch. Mr Fisher had an urgent case at lunchtime and had a very short lunch break. His appointment with Mr Stapley had taken longer than had been allocated in his diary so he was behind in his patient schedule at the end of the appointment.
Mr Fisher gave evidence that he suggested to Mr Stapley that the best option to fix the problem permanently would be an operation, namely an intranasal antrostomy, and that he told Mr Stapley his routine warning of risks of that surgery:
"What I say is the operation is sinuses and then may point out whichever sinus needs operating on; it's not a particularly pleasant operation; no‑one enjoys it; it's generally not particularly painful; it is more uncomfortable than painful but at times it can be painful; after the operation you often have some packing in the nose because of bleeding; if you do need the packing that tends to come out next morning; again it's not particularly pleasant; usually not particularly painful; after the packs have come out occasionally you'll have further bleeding and occasionally you need to have the packs put back in and that can happen up to a week or 10 days or so down the operation.; after the operation your nose will run like a tap; as I describe it you get more mucus coming out of your nose than you ever believed possible, that it will be thick, it will be disgusting; often it's bloodstained mucus and, as I said, there may be bleeding; that generally settles down over a couple of weeks; you often then get some crusting in the nose.
The crusting is again very unpleasant. It can block up the sinuses and the drainage holes we've created and you can get a secondary infection, and you sometimes need antibiotics for that. The crusting then clears out and the nose starts settling down and it can take about 8 weeks before the nose has settled down completely and working properly. The common problems you have after an operation like these are the bleeding, infections, pain and discharge, there are some significant risks associated with any operation of the sinuses. They are rare but they are real. On either side of your sinuses are your eyes or your orbits. Above them is the brain and they are at risk in the operation. The risk of significant injury to the orbit or the orb contents or the brain is very rare but it's real. The most common of the orbital complaints is bleeding behind the eye. The artery that supplies the sinuses comes through the orbit across the top and down into the sinuses and when you are cleaning the sinuses out that can be disrupted. That's why you can get bleeding. You may have been packing in the nose. Occasionally, and it's about one in every 3500 operations the artery retracts back in behind the eye and bleeds behind the eye. If that happens you've got to do an operation on the outside to come down and decompress the eye otherwise there is a risk to the vision. Most of the time if you don't do it it will resolve anyway but because of the risk to the vision you need to do something. It usually happens at the time of the operation or immediately afterwards. It's not something generally that happens down the track. The other risk is to the brain. Again injury to the brain is extremely rare but the dura at the back that sits around the brain is stuck down on top of the sinuses and when you clean the sinuses out that can be breached. You can get leak of the CSF. Most of the time that happens you see it and you put a little plug of tissue up there and it heals over. Occasionally it doesn't and you can have a leak of CSF for 3 or 4 days and then it settles down. ... If you've got an ongoing leak of CSF it can cause meningitis and be extremely dangerous. As far as I know there's only been one recorded case of meningitis post nasal surgery in Australia so it is very rare." (T169 ‑ T171)
Mr Fisher's evidence was that Mr Stapley asked questions during the consultation seeking clarification of what Mr Fisher was telling him and that as a result the consultation lasted longer than a normal consultation. Mr Fisher did not have a clear recollection of what questions Mr Stapley asked. After each question Mr Fisher endeavoured to return to where he was in his routine explanation of the risks of the surgery. Mr Fisher estimated that the consultation took half‑an‑hour. At the end of the consultation it was Mr Fisher's impression that Mr Stapley was unsure about whether he would have the operation. He took Mr Stapley to his waiting room and asked his secretary to explain the costs and operating dates to him.
Mr Fisher made notes of his consultation with Mr Stapley. Those notes do not record that he informed Mr Stapley of the risks of complications in the surgery. This was an exception to his usual practice. His evidence was that because he was so busy his notes were not as full as they should be.
Mr Stapley's evidence was that he asked Mr Fisher very few questions. Mr Stapley denied that Mr Fisher said anything to him about a risk to his vision or of a risk of meningitis. From his work running a swimming pool retail supply business he is aware of the potential seriousness of meningitis and his evidence was that he would have remembered it if Mr Fisher had mentioned meningitis.
An antrostomy
Mr Stapley had an obstruction of the left antrum. The antrum is an opening beneath the eye. The obstruction of Mr Stapley's left antrum did not permit air to enter and leave Mr Stapley's left sinus and also prevented secretions getting out. The purpose of an antrostomy is to display the natural opening into the antrum called the ostium. This allows for ventilation of the sinus and leaves the patient with a sinus full of air, as it should be, rather than full of pus or material, as it can become if there is an obstruction.
The drainage hole for the antrum is a long narrow tube formed by two bones, namely the uncinate process and the bulla. The bulla is a hollow semi‑circular or "D" shaped cyst. In an antrostomy the surgeon removes the uncinate process and opens, ie. removes, the bulla. This results in the long narrow drainage tube becoming both shorter and fatter and so improves drainage.
The surgery
Mr Fisher did not see Mr Stapley again until 10 March 2000, the day on which he carried out the surgery at Joondalup Health Campus. Mr Fisher briefly explained to Mr Stapley the operation he was to perform.
Mr Fisher's evidence was that when carrying out the surgery he had a perfect view of the uncinate process. He infracted the uncinate process and removed it. He opened the bulla and saw a polyp hanging down from the bulla sitting over the ostium. He removed the polyp with a pair of forceps. It seemed to come out very easily. He then used a sucker to suck out blood and mucous. The operation seemed to go smoothly and at the end of it Mr Fisher believed that everything had gone well. The operation took approximately 10 to 15 minutes, the standard time for an antrostomy without complications.
In the surgery Mr Fisher disrupted Mr Stapley's left orbital floor. He did not know he did that at the time. Mr Fisher did not know that an injury to the orbit had occurred until he saw a report on a CT scan taken on 20 March 2000. The damage to the floor of the orbit led to displacement of Mr Stapley's left orbital and left inferior orbital muscles.
Mr Stapley reported double vision immediately after the surgery. On 13 March 2003 Mr Fisher wrote to Mr Stapley's general practitioner, reporting on the surgery. In that letter he wrote that Mr Stapley had sneezed that morning and caused double vision, interfering with his gaze on the left.
Expert evidence
Each of Mr Stapley and Mr Fisher adduced expert evidence from medical practitioners who have experience as ear, nose and throat surgeons. Mr Stapley called Dr Joseph Scopa who became a Fellow of the Royal Australian College of Surgeons in the field of ENT surgery in 1975. Dr Scopa is now a full‑time medical legal consultant, having ceased surgery approximately three years ago. Mr Fisher called Professor Peter Wormald. Professor Wormald is professor and chairman of the Department of Otolaryngology and Head and Neck Surgery at the University of Adelaide and Flinders University.
Dr Scopa and Professor Wormald agreed that the recorded incidence of penetration of the orbit after intranasal antrostomy is 0.5 per cent and of double vision after that surgery is less than 0.01 per cent.
In Dr Scopa's opinion serious visual problems are potential complications of antrostomy surgery. The bulla is attached to the side wall of the eye. When removing the bulla a surgeon can tear the periosteum, which is the tissue that keeps the fat inside the orbit. If that occurs bleeding inside the eye can result, which can cause serious visual problems including total loss of vision, double vision or entrapment of the muscles. The uncinate process is also attached to the side wall of the eye and the same complications can occur.
I have quoted earlier in these reasons Mr Fisher's evidence as to the warning of the risks of surgery that he gave to Mr Stapley. In Dr Scopa's opinion it is necessary to explain to the lay patient the risk of impairment to vision being suffered as a result of antrostomy surgery in terms that the patient can understand. Dr Scopa considers that the warning described by Mr Fisher is an adequate warning of the risk. I have also set out earlier in these reasons Mr Stapley's evidence of the oral warning that Mr Fisher gave to him and of the document he received in Mr Fisher's waiting room after his appointment with Mr Fisher. In Dr Scopa's opinion if Mr Fisher informed Mr Stapley of only the dangers of which Mr Stapley gave evidence that would be an inadequate warning of the risk of surgery because it does not refer to the risk of damage to vision. Dr Scopa's opinion is that the giving of the document given to Mr Stapley in Mr Fisher's waiting room would not be an adequate explanation of the risk of damage to vision because the statement is in general terms. It would be necessary for the surgeon to give the patient the opportunity to read the document, make sure the patient understands it and then give the patient the opportunity to ask the surgeon questions about it.
In Dr Scopa's opinion, in the course of carrying out an antrostomy, there is no need for the surgeon to go near the floor of the patient's orbit. The roof of the antrum is the floor of the orbit. In an antrostomy the surgeon does not operate on the roof of the antrum but the medial part of the nose. In the course of the surgery it is necessary to use suction tools to remove secretions, however there is no need for those tools to go near the floor of the orbit because the secretions would fall to the floor of the antrum, not up to the roof of the antrum where the floor of the orbit is located. In Dr Scopa's opinion disruption of the floor of the orbit is not a known complication of antrostomy surgery and if a surgeon is exercising reasonable care damage to the floor of the orbit should not be caused in that surgery.
Professor Wormald's evidence was that in 1999 the majority of ear, nose and throat surgeons would have given a warning of the risks of antrostomy surgery of the kind that Mr Fisher said in his evidence that he provided to Mr Stapley. In 1999, because the risk of double vision was so rare, the general risk of complications involved in damage to the orbit was the standard warning that was given. In Professor Wormald's opinion for a surgeon to say nothing to a patient about any potential complication which carries risk of disturbance of vision would not have been acceptable.
In Professor Wormald's opinion damage to the floor of the orbit is a possible complication of antrostomy surgery performed with reasonable care even by the most senior and most experienced surgeon. During the surgery the surgeon passes a suction tool into the antrum. It is necessary to use the suction tool to enable the surgeon to see the area in which the surgery is to take place. When the surgeon is inserting the suction tool the area is usually full of blood and there is swelling of the tissue and so the surgeon cannot see the area into which the surgeon is placing the tool. Mr Stapley had a polyp in his nose and so the area was swollen and obstructed. Even with the greatest care and experience it is possible inadvertently to damage the floor of the orbit. The floor of the orbit is not flat but is round. Simply turning the suction tool upwards when it is in the antrum or pushing the tool in with a slight upward trajectory can damage the floor of the orbit. The floor of the orbit is a very thin bone, but it does take some force to fracture it. The fracture could not occur just by the tool touching it. Sometimes force is required to push the suction tool through the antrum and that amount of force can be sufficient to damage the floor of the orbit which is a very thin bone.
Professor Wormald had not seen a CT scan showing where Mr Stapley's orbit had been fractured. As I have noted earlier in these reasons it was agreed that the fracture was at the floor of the orbit. In his practice Professor Wormald has not seen a case where the floor of the orbit has been fractured and he does not know of a documented case of a fracture of the floor of the orbit. Nevertheless Professor Wormald maintained that the floor of the orbit could be fractured by a competent surgeon exercising reasonable care and skill. In his opinion because of the force that can be required to push the suction tool and because the orbit is rounded the medial part of the orbital floor is at risk in an antrostomy. The fact that there is no documented case of the floor of an orbit being fractured during antrostomy surgery may be because the papers do not specify the location of the fracture.
Finding as to consultation on 11 August 1999
There was nothing about the demeanour of Mr Stapley or Mr Fisher when they gave their evidence which assisted me to resolve the issues between them. They each appeared to be honest witnesses who were doing their best to give evidence about what occurred at the consultation on 11 August 1999 as accurately as possible.
The surgery took place approximately seven months after the consultation. Until Mr Stapley developed double vision immediately after the surgery there was no reason for either Mr Stapley or Mr Fisher to recall what was said at the consultation and there is no evidence that either of them endeavoured to do so in that period.
Mr Stapley first consulted a solicitor in approximately April 2001 and that was the first occasion that he endeavoured to cast his mind back to what Mr Fisher had told him at that consultation. Although that was approximately 20 months after the consultation Mr Stapley's evidence was that he had no difficulty recalling what was said by Mr Fisher. In view of the periods to which I have referred I have considered whether it is likely that Mr Stapley can recall what was said at the consultation. As the consultation was an unusual event in Mr Stapley's life which led to a significant decision, namely to have surgery, I do not find it implausible that Mr Stapley can recall what Mr Fisher told him at the consultation.
As I have noted Mr Fisher made no note that he provided any warning to Mr Stapley of the risks of the surgery and the absence of a note was an exception to his usual practice. I have also noted earlier Mr Fisher's evidence was that he recalled seeing Mr Stapley and could remember his interest in scuba diving and the fact that the day was busy.
I accept that Mr Fisher can recall that he had a consultation with Mr Stapley and that he had a busy day. Mr Fisher has approximately 80 consultations a week. Given the very large number of consultations that he has had since 11 August 1999 and the large number he had between the initial consultation and the surgery, I consider it unlikely that Mr Fisher can recall with any detail what he said to Mr Stapley. I am confirmed in this view by the manner in which Mr Fisher gave his evidence of the warning he gave which was expressed in terms of his usual practice, not in terms of what he said to Mr Stapley and the fact that Mr Fisher confirmed that he did not remember the exact words that he used.
In considering what is likely to have occurred at the consultation I bear in mind that when a person such as Mr Fisher has a routine procedure there is a likelihood that the routine procedure will be followed. However in this case there was an aspect of Mr Fisher's practice that clearly was not followed by him because he made no note that he gave the warning. I conclude on the balance of probabilities that through an oversight on his part caused by how busy he was on that day Mr Fisher did not inform Mr Stapley of the risk of damage to his vision resulting from antrostomy surgery. I accept Mr Stapley's evidence of what Mr Fisher told him at the meeting.
The adequacy of the warning given
Subject to therapeutic privilege a medical practitioner has an obligation to warn a patient of a material risk inherent in the treatment the practitioner proposes to the patient. A risk is material if, in the circumstances of the particular case, a reasonable person in the patient's position, if warned of the risk, would be likely to attach significance to it or if the practitioner is or should reasonably be aware that the particular patient, if warned of the risk, would be likely to attach significance to it: Rogers v Whitaker (1992) 175 CLR 479 at 490.
The significance that is likely to attach to possible harmful consequences of medical treatment would ordinarily depend on the magnitude of the risk, the nature of the potential harm, the need for the treatment and the physical and mental state of the patient: Tai v Saxon, unreported; FCt SCt of WA; Library No 960113; 8 February 1996 at 8.
I have summarised earlier in these reasons the evidence of Dr Scopa and Professor Wormald as to the risk of impairment to vision in antrostomy surgery. There is no significant difference between their evidence on this issue and I accept it. The risk of damage to vision is not great, however the consequence of such impairment is so significant that a reasonable person in Mr Stapley's position would be likely to attach significance to the risk. I conclude therefore that Mr Fisher did have a duty to warn Mr Stapley that there was a risk of damage to his vision in the surgery proposed.
In my view Mr Fisher did not adequately explain that risk to Mr Stapley. He did not explain the risk during the consultation and the document which was handed to Mr Stapley in the waiting room after the consultation did not adequately warn of the risk because it was in general terms, referring to surgery which was not to be carried out on Mr Stapley as well as surgery that was to be carried out, and it did not warn that even if appropriate care was provided after the surgery permanent impairment to vision could be caused.
Whether Mr Stapley would have agreed to the surgery if an adequate warning had been given
Mr Stapley's evidence was that if he had been warned that there was any risk of damage to his vision he would not have gone ahead with the surgery. In cross‑examination his evidence was that if he had been told of a possibility that vision problems might eventuate he did not think that he would have gone ahead with the surgery and that if told that there was a 99.99 per cent chance that it would not damage his vision it would have been something he would have considered along with the alternatives to surgery.
The test to be applied in determining whether a person would have proceeded with a medical procedure if warned of that risk is a subjective one: Chappel v Hart (1998) 195 CLR 232 at 246. This does not mean that the assertion of a plaintiff in evidence that the patient would not have undertaken the procedure if warned of a risk is always to be accepted. Like all matters of fact findings are to be made having regard to all the evidence, and it is necessary to bear in mind the fact that the plaintiff knows that if the plaintiff's evidence were that even if warned of the risk the plaintiff would have undergone the procedure, then the plaintiff's case must fail: Rosenberg v Percival (2001) 205 CLR 434; Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 at 582.
Mr Stapley knew from watching television and his general reading that people have suffered side effects from surgery and that some people have even died. He knew that he could not be given a guarantee that those sorts of complications could not occur. He is also likely to have been given some warning of possible complications as a result of speaking to the anaesthetist, but I do not know what those warnings were.
Vision is a sense of great importance to almost everything a person does. I accept that the possibility of impairment to his vision is something to which Mr Stapley would have attached significance. The problems that Mr Stapley was having at the time he saw Mr Fisher were inconvenient and irritating, but they were not life threatening or interfering with his lifestyle other than his engaging in the sport of scuba diving which he enjoyed. I accept Mr Stapley's evidence that if he had been warned of the risk of damage to his vision he would not have undertaken antrostomy surgery.
Conclusion as to damage to the floor of the orbit
It is not known precisely how the floor of Mr Stapley's orbit was damaged in the surgery. I accept the evidence of Dr Scopa that there is no need for a surgeon intentionally to have tools at the floor of the orbit when carrying out antrostomy surgery. However it was necessary for Mr Fisher to use a suction tool when carrying out the surgery and to do so in an area which was obstructed.
I accept the evidence of Professor Wormald that the force required to turn the suction tool in an obstructed area can be sufficient to disrupt the floor of the orbit and that this can occur without any lack of care or skill by the surgeon. I do not accept Dr Scopa's opinion that if a surgeon exercises reasonable care damage to the floor of the orbit should not occur. In view of the limited space in which the surgeon must work, the obstructions that the surgeon is likely to encounter and the limitations of visibility it is possible for a surgeon exercising reasonable care and skill inadvertently to damage the floor of the orbit.
In my view it is likely that while using a suction tool Mr Fisher damaged the floor of Mr Stapley's orbit without appreciating that he did so. I accept that such damage can occur without a failure by the surgeon to exercise reasonable care and skill. On the facts that have been established Mr Stapley has not proved that in disrupting the floor of the orbit Mr Fisher failed to exercise reasonable care and skill.
Summary
I conclude that Mr Fisher failed adequately to warn Mr Stapley of the risk of impairment to his vision in antrostomy surgery and that if he had been so warned Mr Stapley would not have proceeded to have the surgery. Mr Stapley has not proved that in disrupting the floor of Mr Stapley's orbit Mr Fisher failed to meet the duty of care he owed to Mr Stapley. I will hear from counsel as to the appropriate orders.
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