Stewart v Ng

[1999] NSWCA 387

CITATION:	STEWART v NG [1999] NSWCA 387
FILE NUMBER(S):	CA 40381/98
HEARING DATE(S):	1 April 1999
JUDGMENT DATE:	21 October 1999
PARTIES :	DOROTHY STEWART v KENG NG
JUDGMENT OF:	Meagher JA at 1; Handley JA at 2; Powell JA at 28

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	DC 5831/96
LOWER COURT JUDICIAL OFFICER:	Twigg DCJ

COUNSEL:	L T Grey (Appellant) S C Finnane (Respondent)
SOLICITORS:	Carroll & O'Dea (Appellant) GIO General Limited (Respondent)
CATCHWORDS:	NEGLIGENCE - gynaecologist - sterilization by tubal ligation - subsequent pregnancy - challenge to trial Judge's findings - whether tubal ligation carried out correctly - whether pregnancy the result of spontaneous reanastomosis - whether negligence in failing to arrange histological examination - whether failure to advise patient about procedure or risk of failure
DECISION:	Appeal dismissed with costs

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40381/98
DC 5831/96

MEAGHER JA
HANDLEY JA
POWELL JA

21 October 1999

DOROTHY STEWART v KENG NG

NEGLIGENCE - gynaecologist - sterilization by tubal ligation - subsequent pregnancy - challenge to trial Judge’s findings - whether tubal ligation carried out correctly - whether pregnancy the result of spontaneous reanastomosis - whether negligence in failing to arrange histological examination - whether failure to advise patient about procedure or risk of failure

The respondent performed a tubal ligation on the appellant in 1993. In 1995 the appellant fell pregnant and in 1996 she gave birth after an emergency Caesarean section. An action against the respondent for negligence (in failing to carry out the tubal ligation, failing to arrange for histological examination of the excised tissue, failing to warn her of the risk that the procedure might fail, and failing to ensure that she had a clear understanding of the procedure) was unsuccessful. The trial Judge found that the respondent had carried out the tubal ligation correctly and that the subsequent pregnancy could be explained by the known failure rate for such procedures due to spontaneous reanastomosis.

HELD : dismissing the appeal: (1) The trial Judge had not erred in finding that the tubal ligation had been carried out correctly and that the appellant’s pregnancy was the result of spontaneous reanastomosis. (2) The appeal against the finding that there had been no negligence in failing to arrange a histological examination failed on merit and causation. Whilst it was possible that such a test would have revealed a failure in the procedure, budgetary considerations and the slight chance of failure were sufficient reasons for not arranging such a test. The histological examination would not have revealed the reanastomosis which caused the pregnancy. (3) There was no substance to the appellant’s claim that the respondent failed to adequately explain the procedure or warn her of the risk of failure and pregnancy.
ORDERS


Appeal dismissed with costs.

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40381/98
DC 5831/96

MEAGHER JA
HANDLEY JA
POWELL JA

21 October 1999

DOROTHY STEWART v KENG NG

JUDGMENT

1    MEAGHER JA: I agree with Handley JA. 2    HANDLEY JA: This is an appeal by a plaintiff from the judgment for the defendant entered by Twigg DCJ in a medical negligence case. In April 1993, when the plaintiff was 20 weeks pregnant with her sixth child, she consulted Professor Ng, then Director of Obstetrics at Royal Newcastle Hospital. The child was born naturally on 9 September and on 14 September the defendant carried out a tubal ligation using a modified Pomeroy, sometimes called the Parkland, technique. 3    In December 1995 the plaintiff became pregnant again and on 13 June 1996 she was admitted to Dubbo Base Hospital where Professor Giles performed an emergency Caesarean section which resulted in the premature birth of a male child. The child remained in hospital until his death on 29 September that year. 4    The plaintiff brought an action against Professor Ng alleging negligence in carrying out the tubal ligation, and in failing to arrange for histological examination of the excised tissue. She also alleged that the defendant failed to warn her of the risk that the procedure might fail, and she could become pregnant again, and failed to ensure that she had a clear understanding of the nature of the procedure. 5    The plaintiff’s claim that the defendant had carried out the procedure negligently was based on the post-operative report of Professor Giles of 13 June 1996. This stated:

“Examination of the pelvis at the time of Caesarean Section revealed that the left fallopian tube was showing evidence of a previous partial salpingectomy with a 2 cm portion of tube absent in the mid-portion of tube. The right fallopian tube appeared to be intact. Both round ligaments and ovaries were normal”.

6    The allegation against the defendant was that he failed to cut the plaintiff’s right fallopian tube and this had allowed her to become pregnant again. This claim was supported by Dr McCusker and Dr Hinde who gave evidence in report form and orally. 7    The defendant’s post-operative report of 14 September stated:

“Tubes and ovaries were normal. Tubes were cut, ligated and then tied with catgut by Pomeroy technique. Specimens not sent for histology”.

8    The defendant used a standard method for carrying out this procedure, and said that he would have, and had, cut the plaintiff’s right fallopian tube. 9    It was common ground that there were only two possible explanations for the plaintiff becoming pregnant in 1995. The first was that Professor Ng failed to cut and tie her right fallopian tube, the second was that it had been cut but had spontaneously reanastomised within 2 years of the operation, and within 3 years had reached a condition which Professor Giles could describe as “intact”.
10 The experts, including the defendant, agreed that it was most unlikely that the tube had spontaneously reanastomised. Professor Korda, who gave evidence in the defendant’s case, said that the failure rate with this procedure was between 0.7 and 1.9% and that a common cause of failure was spontaneous reanastomosis. The defendant said in his report of 21 October 1996 that there is a failure rate for properly conducted operations of about 1 in 350 to 1 in 400 tubal ligations particularly if the procedure is carried out shortly after birth. Dr Hinde agreed that this was the failure rate for properly conducted operations and referred to Williams On Obstetrics, 17th ed (AB 109). Dr Hinde said that the failure rate when this procedure is carried out shortly after birth is somewhat higher than when it is carried out six weeks or so later (AB 199). 11 If cases could be decided solely on statistical evidence, the appellant should succeed, but they must be decided on the whole of the evidence. See “The Scales of Justice : Probability and Proof in Legal Fact Finding” by Mr Justice Hodgson (1995) 69 ALJ 731, 735-6, 738-9, 740 and foll. The Court must determine whether the plaintiff established, on the civil onus, that Professor Ng failed to carry out a tubal ligation on her right fallopian tube. This required her to prove that more probably than not her pregnancy was not due to spontaneous reanastomosis. It is relevant in this context that the plaintiff did not call Professor Giles. See Holdgson ibid 739, 741. 12 The procedure is not difficult or complicated. Dr Korda said in his report of 5 March 1998:

“It is difficult to imagine that an experienced gynaecologist would not be able to perform such (a) basic ‘bread and butter’ gynaecological procedure. In most teaching hospitals these operations are performed by the junior medical staff”.

13    It was common ground at the trial that this was “a relatively easy procedure” (AB 133N). 14    Professor Ng has distinguished qualifications as a gynaecologist and obstetrician (AB 223). These include Fellowship of the Royal Australian College of Obstetricians and Gynaecologists since 1979, and Fellow of the Royal College of Obstetricians and Gynaecologists, London since 1982. His specialist experience in this field dates from before 1965. He has been Clinical Associate Professor at the University of Newcastle, and a Training Supervisor of the Royal Australian College of Obstetricians and Gynaecologists since 1986.
15    The defendant said in his report of 21 October 1996 that both tubes were identified, cut and ligated. He said in his oral evidence-in-chief that he removed a portion from each tube but did not send them for histological confirmation “because I had identified the tube, tubes at operation” and there was no evidence of disease (145). He had carried out “a careful inspection of the tubes” which he identified by following them to the fimbrial opening to satisfy himself that he had the tube and not something else (147). He had a set procedure and followed it (159). He performed this operation about 40 times a year (156). On this occasion he demonstrated the procedure to his assistant, Dr Webber, for the purposes of teaching it to him (160), explaining what he was doing, and allowing him to look at what he did (180). 16    Professor Ng was cross-examined about his decision not to send the excised tissue for histological examination. He said that although such an examination was desirable, it was not carried out as a matter of routine for two reasons; one being the cost, and the other “when we are sure what we have removed because you have taken the trouble to identify the structure carefully” (161). Dr Hinde agreed that the practice of sending the excised material for histological examination had been seriously questioned in recent times for its cost effectiveness (199). 17    Professor Giles, in his report of 13 June 1996, described the plaintiff’s ovaries and round ligaments as normal, and said that the right fallopian tube “appeared to be intact” possibly indicating by this that it was not “normal”. The plaintiff had undergone sterilisation in 1982 from Dr Hinde with the original Pomeroy technique which involved crimping her tubes. With such a procedure the crimped section either falls off and is absorbed or it simply withers. In 1990 this procedure was reversed to enable the plaintiff to have further children. This required the removal of the occluded portions and the stitching together of the two ends of each tube (107). 18    Dr McCusker said that there would be minimal evidence of this procedure but “if you look for it I would expect you to be able to see it” (96). Dr Hinde agreed (108). Dr McCusker also agreed that Professor Giles’s statement was consistent with the right tube having been cut by Professor Ng and then reanastomised (96, 100). 19    The Judge accepted the evidence of Dr Korda in preference to that given by Dr McCusker and Dr Hinde, and made a positive finding that the defendant had carried out the procedure correctly, and that the known failure rate was the explanation for the plaintiff’s subsequent pregnancy. 20    His Honour’s reasons, although economical, were not inadequate to the point of legal error. Clearly he accepted the defendant’s evidence and found that this was one of the rare cases where spontaneous reanastomosis had occurred. He referred to the defendant’s high qualifications, something the court was bound to take into consideration when considering whether the defendant failed to properly carry out this “basic bread and butter procedure”. 21    This Court is entitled to take into consideration the defendant’s evidence that he followed a set procedure which included a positive identification of the tubes by tracing each to the fimbrial opening, although the Judge did not specifically refer to this. The Professor was teaching this operation which required him to demonstrate each step to Dr Webber. The excised sections were examined presumably by both of them for evidence of disease and must have looked alike. 22    In my judgment the appellant has not established that the trial Judge fell into error in finding that the procedure was carried out correctly. The plaintiff wanted to have this procedure before being discharged from hospital, although she was advised that it would be better if she had it some weeks later. She was worried about becoming pregnant in the meantime. The fact that she did not become pregnant until December 1995 is consistent with spontaneous reanastomosis, rather than an uncut tube. 23    The appellant’s next ground of appeal on liability asserted error by the Judge in dismissing the claim that the defendant was negligent in failing to refer the excised material for histological examination. This ground also fails both on its merits and on causation. If Professor Ng made a mistake, a histological examination would have revealed this and allowed the mistake to be rectified. However the fact that an additional precaution would have prevented the damage does not establish that the failure to take that step was negligent. This Court is not entitled to ignore the question of cost in cases such as this. The budgets of public hospitals are under pressure and it is not unreasonable for routine testing to be dispensed with when the surgeon is not in doubt, and the failure rate of the procedure from all causes is 1.9% or less. In any event routine testing would not prevent spontaneous reanastomosis and since this was found to have occurred the failure to test did not cause the plaintiff’s loss. 24    The appellant’s other grounds of appeal on liability concern the Judge’s rejection of her claim that Professor Ng failed to adequately explain the nature of the procedure and warn her of the risk that it could be unsuccessful and pregnancy could still occur. There is no substance in this part of the appeal. In 1982 the plaintiff signed a consent for her sterilisation which stated that there was a remote possibility of spontaneous reversal. Her discussion of this procedure with Dr Hinde at that time demonstrated considerable knowledge on her part of the different techniques then available. 25    The plaintiff signed two forms of consent for her tubal ligation in 1993; one on 12 May and the other on 14 September. The first contained a clear and explicit warning that pregnancy could still occur. The Judge accepted Professor Ng’s evidence that he explained the operation and the risk of further pregnancy to the plaintiff before she signed the May consent and he rejected the contrary evidence given by the plaintiff and her sister. 26    This Court cannot possibly disturb these findings which are based on credit but they are supported by the plaintiff’s evidence-in-chief that she didn’t believe the form and didn’t believe “the failure rate” (14). There is also no substance in the appellant’s claim that Professor Ng was bound to explain the way in which the sterilisation operation would be carried out. 27    The appeal therefore fails and must be dismissed with costs. 28    POWELL JA: I agree with Handley JA.
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