| JURISDICTION | : | DISTRICT COURT OF WESTERN AUSTRALIA IN CIVIL |
| LOCATION | : PERTH | ||
| CITATION |
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| CORAM | : LEVY DCJ | ||
| HEARD |
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| DELIVERED |
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| FILE NO/S |
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| BETWEEN | : LISA JADE STOBART |
Plaintiff
AND
ILHAM HASHIM HADI AL-HAKEEM
Defendant
Catchwords:
Torts - Negligence - Medical procedure - Duty of care - Whether medical practitioner failed to follow correct procedures in inserting contraceptive device - Unplanned birth - Whether plaintiff lost opportunity to terminate foetus - Turns on own facts
Legislation:
Civil Liability Act 2002 s 5B(1), s 9
Health (Miscellaneous Provisions) Act 1911 (WA) s 334(3), s 334(4), s 334(7)
Result:
Plaintiff's claim dismissed
| Document Name: WADC\CIV\2017WADC0127.doc (TZ) | Page 1 |
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Representation:
Counsel:
| Plaintiff | : | Mr G M G McIntyre SC |
| Defendant | : | Ms B A Mangan |
Solicitors:
| Plaintiff | : | Slater & Gordon |
| Defendant | : | Avant Law Pty Ltd |
Case(s) referred to in judgment(s):
Cattanach v Melchior (2003) 77 ALJR 1312
Kerr v Minister for Health [2009] WASCA 32
Nominal Defendant v Gardikiotis (1996) 186 CLR 49
Subramaniam v The Public Prosecutor [1956] UKPC 21; [1956] 1 WLR 965
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LEVY DCJ:
Introduction
1 The critical issue to be determined in this case is whether the
defendant, a medical practitioner, breached her duty of care to the plaintiff as her patient by inserting a contraceptive device into the plaintiff's arm without first properly ascertaining whether the plaintiff was then in the first five days of her menstrual cycle.
Overview of the case
2 In August 2011, the plaintiff, who was then 23 years old, was living
in a de facto relationship with her partner Ryan Doherty. The plaintiff had no plans to fall pregnant in the foreseeable future. She used a contraceptive pill ('the pill') but did not always take it regularly. For that reason, she formed the view that the pill was an unreliable form of contraception.
3 After discussing contraception with friends, the plaintiff became
aware of a form of contraceptive method known as an Implanon device. The plaintiff subsequently made an appointment at Forest Lakes Medical Centre ('FLMC') for the purpose of discussing the insertion of the device.
4 The plaintiff attended FLMC on 31 August 2011 where she was seen
first by a nurse, and then by a medical practitioner. The medical practitioner with whom she consulted was Dr Ilham Hashim Hadi Al-Hakeem, the defendant.
5 It is not in dispute that the defendant ultimately inserted the
Implanon device into the plaintiff's arm that day. Nor is it in dispute that the Implanon device had to be inserted within the first five days of the plaintiff's menstrual cycle. For that reason, it was common ground that in order for the defendant to have fulfilled her duty of care to the plaintiff, it was an essential pre-condition that she ascertain whether the plaintiff was in fact then in the first five days of her menstrual cycle.
6 The plaintiff's case is that not only did the defendant fail to take
sufficient steps to properly ascertain whether she was in the first five days of her menstrual cycle, but that the plaintiff had told the defendant that she was not sure when her last period was and estimated that it had finished about a week earlier.
7 There is no dispute that before the defendant inserted the Implanon
device into the plaintiff's arm, the plaintiff told the defendant that she was
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not pregnant. However, unbeknownst to either the plaintiff or the defendant, at the time the plaintiff consulted the defendant on 31 August 2011 she was already pregnant. It is not in dispute that as at that date she was about 19 days post-conception. The plaintiff says that at the time that she consulted the defendant she did not know she was pregnant and had no reason to believe she was.
On or about 11 December 2011, the plaintiff took a home pregnancy test which indicated that she was pregnant.
9 The following day, 12 December 2011, the plaintiff attended the
Perth Radiological Clinic where an ultrasound confirmed not only that she was pregnant, but that the estimated gestation age of the foetus was 19 weeks and 1 day.
10 The plaintiff says that on that same day, 12 December 2011, she was
advised by another medical practitioner that she was too well-advanced in her pregnancy to have the foetus terminated. Consequently, no further steps were taken by the plaintiff to terminate the pregnancy.
On 18 May 2012, the plaintiff gave birth to her daughter Taylor. The birth was beset with problems including:
• the need for obstetric intervention • haemorrhaging • admission to an Emergency Department • blood transfusion. 12 The plaintiff's case is that following the insertion of the Implanon
device, any symptoms she then suffered which are commonly associated with pregnancy, were masked by her belief that they were symptoms or side-effects of the Implanon device, not a consequence of the pregnancy itself.
13 On the plaintiff's case, she was neither asked critical questions
relating to her menstrual cycle nor, in the alternative, did she give answers to questions that when objectively viewed were capable of satisfying a reasonable medical practitioner in the position of the defendant that the she was a proper person to have the Implanon device inserted at that time.
14 The plaintiff says that the defendant's acts or omissions in the
circumstances of this case breached the duty of care she owed to the plaintiff. The breach is ultimately said to give rise to two separate causes of action, namely breach of contract and negligence.
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15 The defendant's case is that the plaintiff told her that she was on the
third day of her menstrual cycle. Consequently, she complied with her duty of care by ascertaining that the plaintiff was in the first five days of her menstrual cycle immediately before inserting the Implanon device. Consequently, the defendant denies that she breached any duty of care that she owed to the plaintiff.
16 The defendant not only relies upon her memory about what she says
she was told by the plaintiff, but also relies upon notes and other relevant contemporaneous documents which on their face appear to record what the defendant says she was told by the plaintiff. The most critical document is a sticker which, on the defendant's case, was placed on a document immediately before the Implanon device was inserted into the plaintiff's arm. That sticker records the plaintiff's first day of her last menstrual cycle as 29 August 2011. As at 31 August 2011 the day on which the Implanon device was inserted, it would have meant that the plaintiff was on the third day of her menstrual cycle. There was no dispute however, that as at 31 August 2011 the plaintiff was pregnant and therefore could not have been on the third day of her menstrual cycle.
17 Obviously, what was said by both the plaintiff and the defendant
during any consultation involving them on 31 August 2011 before the Implanon device was inserted into the plaintiff's arm is critical to determining the issues in this case.
The pleadings
18 The plaintiff alleges that the medical practitioner was negligent
and/or breached her duty of care that she owed to the plaintiff and/or
breached the terms of the contract by:
(a) failing to take an accurate menstrual history from the plaintiff; (b)
inserting the device when the plaintiff was unable to provide an accurate menstrual history;
(c)
failing to comply with the manufacturer's instructions when inserting the device including inserting the device between days 1 to 5 in the cycle;
(d)
inserting the device at the incorrect time in the plaintiff's menstrual cycle; and
(e)
failing to wait until the plaintiff could give an accurate menstrual history after the next cycle before inserting the device.
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19 The plaintiff alleges that each of the failures and/or omissions on the
part of defendant represented a breach of the duty of care owed by
the defendant to the plaintiff.
The plaintiff alleges that had the medical practitioner not breached her duty of care to the plaintiff then:
(a) the plaintiff would have become aware that she was pregnant prior to 11 December 2011 and likely by 13 October 2011; (b) the plaintiff would have been able to legally terminate the pregnancy; (c) the plaintiff would have undergone termination of the pregnancy; (d) the plaintiff would not have required significant follow-up care arising from the complications during the birth of her daughter; and (e) the plaintiff would not have incurred the financial burden of raising a child. 21 The defendant does not dispute that there was a contractual
relationship between her and the plaintiff. Nor does the defendant dispute that she owed the plaintiff a duty of care and that the content of the duty of care was:
(a) to take thorough and accurate instructions from the plaintiff having regard to the symptoms, conditions and medically relevant information provided by the plaintiff; (b) to thoroughly and accurately documenting the instructions provided by the plaintiff; and (c) to observe and act upon manufacturer's instructions when using and applying medical aids.
The defendant contends that she complied with her duty of care to the plaintiff and met all of the content of that duty which is set out above.
23 There is no dispute in this case that at the time that the defendant
carried out the medical procedure being the insertion of the Implanon device, the plaintiff was already pregnant. Consequently, the defendant submits in the alternative that, even if the defendant did breach that duty of care, any breach of her duty of care to the plaintiff was not a necessary
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condition of the occurrence of the harm suffered by the plaintiff, namely the birth of her child. For the reasons that follow, it is not necessary to resolve this issue.
The Law
24 Since the defendant accepts that there was a contractual relationship
between the parties and that she owed the plaintiff a duty of care, it is not necessary to consider the legal principles in great detail. There is no dispute that the Civil Liability Act 2002 (CL Act) applies. Accordingly s 5B of the CL Act has application with respect to the standard of care and the issue of liability that may arise where a breach is proved.
So far as the CL Act applies, s 5PB relevantly provides that:
(1) An act or omission of a health professional is not a negligent act or omission if it is in accordance with a practice that, at the time of the act or omission, is widely accepted by the health professional's peers as competent professional practice.
26 Based upon the expert opinion evidence that was presented by both
the plaintiff's expert and the defendant's expert and is considered in more detail below, if the defendant's evidence is accepted, then her conduct fell within a practice that at the relevant time was, and still is, widely accepted by the health professional's peers as competent professional practice.
27 Since the decision of the High Court of Australia in Cattanach v Melchior (2003) 77 ALJR 1312, where an unplanned child is born because of medical negligence, the parent or parents may sue the negligent medical practitioner. According to the High Court, the unintended birth of the child in these circumstances is deemed to be an 'unfortunate event'. Where the unplanned birth is a result of medical negligence, the parent or parents are entitled to be compensated for the costs associated with raising the child to maturity: Cattanach v Melchior [298] (Callinan J).
28 Consequently, if the plaintiff satisfies me on the balance of
probabilities that the unplanned birth occurred as result of the defendant's negligence, I am required to proceed on the basis that it is indeed an 'unfortunate event'.
The damages sought by the plaintiff
29 The plaintiff seeks damages including: non-pecuniary loss ($70,000);
past economic loss ($89,000); future economic loss ($9,603) and expenses
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associated with raising a child ($321,442.05). The quantum of damages is
dealt with provisionally at [305] - [329] below.
The plaintiff
30 At the time the plaintiff fell pregnant at the age of 23, she had no
immediate plans to have children. She had experienced a difficult childhood. Her mother passed away when she was 12 years old. Her father did not cope with her mother's death. By the time she was 14 or 15, the plaintiff and her siblings (a sister two years younger than her and a brother two years older) were left to fend for themselves. Because of this, she had no desire to have children young, if at all. The plaintiff did concede however, that she intended to reconsider the issue of whether to have children when she was older, perhaps in her 30s.
After leaving school, between 2005 and 2007, the plaintiff worked as a childcare assistant. Thereafter, she moved into property management.
32 In about 2008, the plaintiff and her de facto partner at the time,
Mr Doherty, moved from Queensland to Perth. The move was precipitated by the plaintiff's desire to earn better wages so that she could travel and purchase a property.
33 In the period between 2008 and 2011 the plaintiff was employed in
various jobs. She was employed in property management with Brendan Leahy, Real Estate, Kelmscott; she worked as a medical health co-ordinator for Medibank Health Solutions; and worked briefly in document control for a company called ATOM Supply. According to the plaintiff, prior to falling pregnant, she 'was earning approximately $50,000 a year'. Mr Doherty worked in a factory and was earning less.
The plaintiff's Australian Tax Returns for the years 2007/2008 through to 2011/2012 record her total income prior to tax and other deductions ranged between $23,016 (2007/2008 financial year) to $39,698 (2010/2011 financial year). The plaintiff's tax return for the 2011/2012 financial year records a total income of $34,188, although it should be noted that the child was born on 18 May 2012 and due to her difficult birth and consequential issues, she was unable to return to work for the remainder of that financial year.
By the time the plaintiff fell pregnant, she and Mr Doherty had been together for five years. They were planning to travel to Mexico.
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36 Despite being motivated to get a well-paying job, to travel and buy
property, the plaintiff and Mr Doherty lived a lifestyle that included drug-taking. At the time of discovering that she was pregnant, the plaintiff was living in a 'share-house' and partaking in parties and drugs. The plaintiff's evidence-in-chief included the following (ts 30):
I was partying a lot, both myself and my partner at the time, Ryan, and we surrounded ourselves by people that were also partying a lot, a lot of festivals and Christmas parties and barbecues, so we were drinking and smoking cigarettes and we did take drugs as well.
37 The plaintiff clarified the type of 'drugs' to be 'ice' which she
smoked, and in cross-examination also conceded using ecstasy,
although not regularly.38 Later in her evidence-in-chief, the plaintiff expanded on her evidence
about her former lifestyle. When asked about her reaction to finding out
she was pregnant, she said (ts 31):I was upset that I was pregnant. I had been living a lifestyle that I'm not exactly proud of, or entirely proud of. I'd been taking drugs, I'd been drinking, I'd been smoking heavily, smoking cigarettes heavily, and we had only just stopped the night before to find out I was pregnant.
39 Consistent with the plaintiff's evidence of her drug-taking lifestyle,
the notes of Dr Olufemi Obadimeji, a general medical practitioner with whom the plaintiff consulted on 14 December 2011 two or three days after discovering she was pregnant, record:
says she has been very unkind to herself and has taken drugs like Ice,
ecstasy, cigarettes etc …
She says since she found out 2 days ago she hasn't smoked or done any drugs.
I note that Dr Obadimeji gave evidence for the plaintiff and his notes were tendered during the trial as part of exhibit 11.
The defendant
41 The defendant, a highly qualified medical practitioner, specialises in
| the area of obstetrics and gynaecology. She has practised as a medical practitioner for over thirty years. | |
| 42 | The defendant commenced her medical training and qualified as a medical practitioner in Iraq. She received her medical degree in 1985. The defendant, who has had an interest in obstetrics and gynaecology |
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since very early on in her professional life, in the period between 1988 and 1994, completed a training program in obstetrics. She completed a Diploma in Obstetrics and Gynaecology in 1992, before going on to complete a PhD in Obstetrics and Gynaecology in Jordan in 1994.
From 1997 to 2000 she worked as an obstetrician in Libya. In 2000 she migrated to Australia. In 2002 she commenced working at King Edward Memorial Hospital, Subiaco, where she worked in a gynaecological and obstetrics clinic. She worked there for three years.
44 In 2005, the defendant commenced a general practitioner training
programme. In 2008, she was admitted as a Fellow of the
Royal Australian College of General Practitioners.45 The defendant also gained accreditation as a general practitioner
practising at FLMC that same year. Since 2008, the defendant has
practised as a general practitioner from FLMC.46 Having a particular interest in gynaecology and obstetrics,
the defendant also completed a number of other courses and training programmes in that area. In 2004, over a five day period, she completed a theory component certificate in sexual and reproductive health for medical practitioners. That same year she completed a two day course in advanced life support in obstetrics.
47 In 2005, she completed a certificate course for medical practitioners
in sexual and reproductive health. The course was run by the
Department of Health, Western Australia.48 The Implanon device is a form of contraception that, when inserted
under the skin of a patient, works to prevent the recipient from ovulating
and consequently falling pregnant.49 In relation to the defendant's knowledge and training with respect to
the Implanon device, in 2004 she completed the Implanon training course. The course covered patient selection and counselling, and insertion and removal techniques. The course was endorsed by the Royal Australian and New Zealand College of Obstetricians and Gynaecologists and Family Planning Australia.
50 On 14 July 2011, 48 days before seeing the plaintiff, the defendant
completed an Implanon NXT educational and training programme. In 2015, she completed an updated course of training in relation to Implanon.
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In the period between 2008 and 2016, the defendant successfully inserted the Implanon device into 367 patients.
The lead up to the events of 31 August 2011
52 Prior to the insertion of the Implanon device, the plaintiff had used
the pill as contraception for a period of nine years. Although she found the pill to be an effective contraceptive device, it caused her skin to break out with acne. She also found herself to be unreliable in taking the pill.
53 The plaintiff spoke to girlfriends about the sort of contraception
that they used. Someone suggested the Implanon device to her. She understood that the device was inserted into the skin, making it unnecessary to regularly take a pill. She understood the device, after it was inserted, would be effective for three years.
54 Although the plaintiff did not have a regular medical practitioner,
she said that she 'almost always' (ts 17) went to FLMC where she would be seen by any available medical practitioner. According to the plaintiff, she had not only previously attended FLMC, but prior to 31 August 2011 had numerous medical appointments with the defendant. I note that in relation to the question of whether the plaintiff had previously attended FLMC and had on earlier occasions been seen by the defendant, not only was the plaintiff's evidence at odds with the defendant's evidence on these points, but the FLMC Complete Record ('FLMC Records') being the practice's medical records relating to the plaintiff, which became exhibit 9 in the trial, bore no record of her having attended that practice prior to 31 August 2011. These issues are considered further below, particularly
at [75] – [80], [85] and [106].
The events of 31 August 2011 - the plaintiff's attendances at FLMC and consultations with the defendant, including the insertion of the Implanon device
55 As already noted above, what was said between the plaintiff and the
defendant is critical to the issues in dispute. For that reason, it is important to carefully consider what each witness said occurred during the first and second consultation involving the plaintiff and the defendant on 31 August 2011. As will become obvious, there were significant differences not only as between the evidence of the plaintiff and the defendant, but between the versions given by the plaintiff in evidence-in-chief, as opposed to cross-examination. For that reason, where necessary, whether the evidence was given by the plaintiff 'in-chief' or during 'cross-examination' is expressly identified.
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56 The Forrest Lakes Medical Centre day sheet of visits for 31 August
2011 (exhibit 17), record 'visit times' for patients at FLMC. According to the defendant, these times reflect when the patient paid for services provided at FLMC, not the actual time of the consultation. There are two times recorded for the plaintiff. The first is at 2.40 pm. The second is at 3.34 pm. These times generally reconcile with the FLMC Records (exhibit 9).
57 These documents tend to support the defendant's contention that the
plaintiff was first seen by the practice nurse on the afternoon of 31 August 2011 (entry of 2.11 pm); then had a double consultation with her lasting approximately 20 minutes (commencing at 2.22 pm and payment for the consultation being recorded at 2.40 pm); then returned to FLMC for the insertion of the Implanon device and was provided with a medical certificate relating to her urinary tract infection (entries of 3.34 pm for payment of services and 3.40 pm for the medical certificate).
The first consultation between the plaintiff and the defendant on 31 August
2011 – the purpose of the appointment - the plaintiff's version
58 The plaintiff made an appointment to see a medical practitioner at
FLMC for 31 August 2011. According to the plaintiff, the purpose of the appointment was to 'discuss the option of Implanon'. On 31 August 2011, the plaintiff attended FLMC.
59 According to the plaintiff, she attended the medical practice in
the company of her friend Ebony Lee Kelly-Francis. She asked Ms Kelly-Francis to accompany her to the medical appointment for support because she had a phobia about needles and she understood the Implanon process involved the insertion of quite a large needle under the skin.
60 Significantly, in her evidence-in-chief, the plaintiff made no mention
of a secondary reason for making an appointment to see a medical practitioner at FLMC on 31 August 2011, namely to seek medical advice in relation to a urinary tract infection that she had at the time. In cross-examination however, the plaintiff conceded that during the first consultation she had with the defendant there was a discussion about a urinary tract infection that she was then suffering from. Furthermore, the defendant also prescribed an antibiotic to deal with it. The plaintiff conceded that she had purchased the antibiotics at the same time that she purchased the Implanon device.
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61 The FLMC records document the plaintiff's attendance at that
practice on 31 August 2011 for both Implanon counselling and insertion, as well as suffering from a urinary tract infection. The FLMC records note that, in relation to the UTI, the plaintiff:
• was requested to provide a urine sample and did so; and • was prescribed medication to deal with the infection, namely Cephalexin.
62 Although the urinary tract infection was secondary to the Implanon
device, the plaintiff's failure to mention any part of this discussion in her evidence-in-chief raises some concern about her memory of what was actually discussed with the defendant on the day.
63 Whilst there was some uncertainty by the plaintiff as to the order that
she spoke to people at FMLC on 31 August 2011, it is not in dispute that
the plaintiff:
• spoke with a nurse at FLMC; • a nurse at FLMC took measurements of her height, weight, BMI, blood pressure and her pulse and recorded that information
(information recorded in FLMC Records at 14:11:00 on
Wednesday 31 August 2011);
• had an initial consultation with the defendant at FLMC; • was given a prescription for the Implanon device and a separate prescription for antibiotics to deal with the urinary tract infection;
• left FLMC to purchase the Implanon device and antibiotics from a pharmacy; and
• returned to FLMC where she had a second consultation with the defendant and had the Implanon device inserted by the defendant.
The first consultation between the plaintiff and the defendant on 31 August
2011 – the issues discussed - the plaintiff's version
64 In her evidence-in-chief, the plaintiff said that before going off to the
pharmacy to purchase the Implanon device, she had a brief consultation with the defendant during which they discussed the side-effects of the
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Implanon device and whether it would work for the plaintiff. This, according to the plaintiff, took place in the presence of Ms Kelly-Francis. The plaintiff described this consultation as being 'very brief'. She was given a prescription by the defendant for the device and then told to meet later at the nurse's clinic.
65 According to the plaintiff, although in evidence-in-chief she could
not recall any conversation with the defendant about whether she was pregnant or not, she was able to say that there was a brief conversation between them about her period. Her evidence-in-chief on this issue was as follows (ts 18 - 19):
Mr McIntyre SC: All right. Was there any discussion about whether or not you were pregnant or what - or your menstrual cycle or anything of that nature? Plaintiff: I don't recall any - any conversation about whether or not I was pregnant. There was a brief discussion about my period and I - I advised that I wasn't quite sure, that I - I thought it was possibly about a week prior. Mr McIntyre SC: All right. Now, do you - do you have a clear
recollection as to when that discussion occurred?Plaintiff: I'm not sure whether it was the consultation before or whilst at the nurses' station. I - I believe it was before, but I'm not 100 per cent sure whether it was before or after.
66 As is obvious from the above, the plaintiff's recollection was that this
conversation took place during the first consultation, however she could not exclude the possibility that it took place at a later time at the nurse's station after she had returned to FLMC to have the device inserted. According to the plaintiff, whether the conversation about her period took place during the first consultation or later, it was the plaintiff's evidence that Ms Kelly-Francis was always present.
67 Notably, in evidence-in-chief the plaintiff could not recall
any conversation about whether she was pregnant or not. Yet in
cross-examination, her evidence was as follows:
Ms. Mangan: And you recall that Dr Al-Hakeem – do you recall Dr Al-Hakeem asking you if there's any possibility that you might be pregnant?
Plaintiff: Yes, I do. Ms. Mangan: And you assured her that you weren't? Plaintiff: I told her that I was not, yes.
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68 The plaintiff's differing versions on this point, in combination with
other issues that are discussed below, ultimately points to her unreliability
as a witness in these proceedings.69 The plaintiff also relied upon the evidence of her friend
Ms Kelly-Francis. Ms Kelly-Francis' evidence about attending FLMC included:
Mr McIntyre SC: Can you recall whether you were present when the
doctor was speaking to her?Ms. Kelly-Francis: Yes. I went into the room with her as she was going to get anaesthetic put into her arm to get the Implanon. Mr McIntyre SC: Do you recall going to a pharmacy with her? Ms. Kelly-Francis: Yes. We went to the pharmacy, we got the Implanon, we went back and she inserted into the arm and that was it, and then we left.
And later in her evidence Ms. Kelly-Francis said:
Mr McIntyre SC: … what do you recall of attending and seeing a – a doctor with Ms Stobart on that day?
Ms. Kelly-Francis: I went to the doctor's with her to get the Implanon put in, I sat with her, she got it and that was it. It was pretty clean-cut there were no questions asked at all. It was just - yeah, she wanted the pills – I mean, the contraceptive, so they just - we went and got the script, got the thing and put it in. So there's nothing - - - ---And that was all that happened. Mr McIntyre SC: Do you recall any conversation the doctor had with
Ms Stobart?Ms Kelly-Francis: Not - not any - just - just as - what I said, there's - the contraceptive pill, 'Can I please have it?' And that was it. There was no, 'Are you pregnant?' Nothing like that. No questions even
on the lines of anything to do with pregnancy.(bold and underlining added)
Ms Kelly-Francis had no recollection of seeing any document at all.
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72 Despite the plaintiff's assertion that Ms Kelly-Francis was present at
all times that she was at FLMC, I note that that whilst Ms Kelly-Francis did refer to going 'back' after obtaining the Implanon and going to get the script, she made no mention of two separate and distinct consultations. More importantly, according to Ms Kelly-Francis, the defendant did not ask the plaintiff any questions at all. Even on the plaintiff's case, this evidence is clearly wrong.
73 It became apparent during the course of cross-examination of the
plaintiff, that the first consultation between the defendant and the plaintiff involved significantly more conversation than the plaintiff initially disclosed in evidence-in-chief. Parts of Ms Kelly-Francis' evidence were ultimately significantly at odds with the plaintiff's own evidence. This included Ms Kelly-Francis' evidence about what the defendant had asked of the plaintiff, namely that:
• 'there were no questions asked at all' • 'There was no, 'Are you pregnant?' Nothing like that. No questions even on the lines of anything to do with pregnancy'. 74 Consequently, save for the contention that the plaintiff was at least at
some stage of the proceedings accompanied by Ms Kelly-Francis when she was seen by the defendant, Ms Kelly-Francis' evidence adds very little to the plaintiff's case.
75 In cross-examination, the plaintiff was asked about the initial part of
the first consultation. It is of note that the FLMC Records include notes apparently taken by the defendant at the time of the first consultation on that day. The relevant entry is recorded as 'Wednesday August 31, 2011 at 14:22:36' and reads (and is relevantly set out, including formatting and spacing) as follows:
NEW PT
MOVED TO THPORNLIE [sic] FROM SOUTH WEALES [sic]
WORK FULL TIME
NO KIDS LIVES WITH PARTNER
HERE FOR URINARY TRACT INFECTIONSX
AND IMPLANON COUNSELLING AND INSERTION
76 Although the plaintiff did not recall any conversation with the
defendant about moving to Western Australia from New South Wales and
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pointed out that she had by that stage been living in Perth for two years,
I note that it was not in dispute that the plaintiff had:
• moved to Thornlie about two months earlier; and • at an earlier time moved to Western Australia from New South Wales. 77 Significantly, I also note the reference to the plaintiff being a new
patient (the letters 'NEW PT' were later explained by the defendant to be
her abbreviation for new patient).
The plaintiff also ultimately conceded telling the defendant that:
• she worked full time; and • that she lived with her partner. 79 The things noted in the FLMC Records were consistent with her
being a new patient. I am satisfied that a general discussion relating to the plaintiff's situation did take place and the plaintiff was simply unable to specifically recall parts of the conversation. This again goes to the issue of her reliability as a witness.
80 It was part of the defendant's case that at the time of the
first consultation, the defendant took the plaintiff through a document called a New Patient Questionaire [sic] (exhibit 2.2). There is no dispute that the plaintiff completed the document that day (the New Patient
Questionaire [sic] is discussed further below at [103] – [117]). Whilst the
plaintiff did not recall the defendant taking her through the document,
she did recall that:
•
after she informed the defendant that she wanted to have the Implanon device inserted, there was a discussion about the side-effects;
• the defendant discussed her use of the pill as contraception with her; •
the defendant asked her whether there was any possibility that she might be pregnant;
• she told the defendant that she was not pregnant; • the defendant discussed with her alternative forms of contraception; • the defendant explained to her how the Implanon device worked; and
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• the defendant discussed her menstrual cycle with her and whether it was regular (noting that she had in fact disclosed in the New Patient Questionaire [sic] that her periods were regular).
The plaintiff denied, or could not recall, telling the defendant that:
• she could not be pregnant because she was menstruating and that she was on day three of her period; or • she only wanted the Implanon device as she had done her 'homework'.
The plaintiff denied, that the defendant told her that:
• the Implanon device had to be implanted during days 1 to 5 of your menstrual cycle; and • if she was not sure about her dates, she would have to come back another time because the device had to be implanted during days 1 to 5.
The plaintiff denied that the defendant:
•
asked her about the period she was having (I note that the plaintiff said that she was not having a period at the time); or
•
offered to perform a pregnancy test or that she had declined such an offer.
The first consultation between the plaintiff and the defendant on 31 August
2011 - the defendant's version
84 The defendant said that she had a specific recollection of the
plaintiff. Her recollection of the events relevant to these proceedings was based not only on her notes, but from her memory of the consultation that occurred on 31 August 2011. She also had a good recollection of the plaintiff because of the events surrounding the insertion of the Implanon device, including a subsequent telephone call that she made to the plaintiff after the Implanon device had been inserted.
85 According to the defendant, the first time she saw the plaintiff was
on 31 August 2011 when she attended as a new patient. The defendant said that she formed the view that the plaintiff presented as being very confident. She specifically recalled parts of the conversation she had with the plaintiff. According to the defendant, when the plaintiff attended she
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was very keen to have the Implanon device inserted that day. She recalled the plaintiff saying 'I did my homework', which was a reference to the fact that the plaintiff had informed her that she had researched Implanon before attending FLMC.
86 The defendant said that, as with all new patients, she welcomed the
plaintiff. The defendant said she was in possession of the plaintiff's completed form at the time (which I infer was a reference to the New Patient Questionaire [sic] given her evidence about what they discussed which is set out below). She went through the form with the plaintiff to ensure that she had completed all the details.
87 The defendant recalled that she asked the plaintiff about her
Pap smear and discussed with the plaintiff her menstrual cycle. She noted that the plaintiff had written on the form that she had a regular menstrual cycle and that they lasted 5 to 7 days, and had her last Pap smear three years earlier. The plaintiff informed her that whilst she was not then on contraception, she was not pregnant. The defendant said that she checked all of this with the plaintiff.
88 She asked the plaintiff the reason for her attendance. The plaintiff
informed her that she was there for two reasons. Firstly, she wanted to
have Implanon inserted. This was her primary reason for attending.
Secondly, although not her main concern, the plaintiff was also there because she was suffering from 'some urinary tract infection'.
As was her usual practice when patients attended seeking to have Implanon, she double-checked with the patient that she was not pregnant.
91 According to the defendant, although she suggested that there may
be other forms of appropriate contraception, the plaintiff informed her that she was not interested in any other form of contraception and wanted to have the Implanon device inserted. During the first consultation, the plaintiff told her that she wanted to have the Implanon inserted that same day.
92 She discussed with the plaintiff how Implanon worked and when it
needed to be inserted. She also discussed with the plaintiff the possible side-effects of Implanon; when it needed to be removed; how it was to be inserted and how it would be removed.
93 In relation to the issue of when it needed to be inserted, the defendant
said that she told the plaintiff that in order for the device to be inserted
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that day, she had to be in the first five days of her menstrual cycle. She says that she told the plaintiff that she would not insert it unless she was in days 1 to 5 of her period. She says that she explained to the plaintiff that the reason that it had to be inserted in the first five days of her period was because after the first five days, she would already be ovulating and it would not be effective at that stage of her cycle, raising the risk of her falling pregnant.
94 To be sure, the defendant says that she first discussed with the
plaintiff whether she had regular periods, to which the plaintiff said 'yes'. Although she could not recall the plaintiff's answer to the question, the defendant says she also asked her whether she was using any form of contraception. She recalled telling her that if she wanted to have the Implanon device implanted that day, she had to be in the first five days of her cycle, to which the defendant specifically remembered the plaintiff saying 'yes, this is my day three' (ts 190). The defendant accepted what she was told by the plaintiff.
95 The defendant asked her whether she was pregnant, to which she
answered: 'no, I'm not pregnant'. The plaintiff followed that answer up by
telling the defendant 'I have my period. I've got my period' (ts 191).96 In addition, as was her practice, the defendant said that she offered to
do a pregnancy test on the plaintiff before doing the Implanon insertion. The defendant noted that it was not mandatory to perform a pregnancy test before inserting the Implanon device, however it was her practice to offer it. According to the defendant, the plaintiff was adamant that she did not need to have a pregnancy test and said to the defendant: 'I've got my period, doctor, I'm not pregnant' (ts 191).
97 It was the defendant's case that at the time that she spoke to the
plaintiff, before the plaintiff left to obtain the Implanon device from a pharmacy, she had a document in front of her which comprised both the 'Doctors' Checklist' and the 'Implanon Patient Consent Form'. The two documents were on the one piece of paper (exhibit 3). The defendant said that she took the plaintiff through the part headed 'Pre-Insertion Section'. That part of the document includes various potential side-effects from using Implanon including: irregular bleeding or no bleeding; headaches; weight gain; depression; bruising and discomfort for up to one week after insertion; the possibility of an allergic reaction and that movement of the implant moving could make removal difficult. In addition, the defendant said that she advised the plaintiff of the possibility of developing a thrombosis, a breast cyst or breast cancer,
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and if she noticed any other symptoms that she should seek assistance
from a medical doctor.98 The defendant also said that she informed the plaintiff that using the
device was not an absolute guarantee that she would not conceive whilst
using the device.99 According to the defendant, the plaintiff made it clear to her that she
wanted to have the device inserted that day. Because of this, the defendant said that she pressed the plaintiff about whether or not she was in the first five days of her menstrual cycle. According to the defendant, she was adamant that she had specifically asked the plaintiff 'do you have a period?' The plaintiff's answer was: 'yes, I have period, day three, I'm not pregnant and there's no contraindication and I'm not on any medication' (ts 193). Further to this, the defendant said that she gave the plaintiff a booklet containing information about Implanon (exhibit 15) and another form which she referred to as the 'FDA form' (exhibit 16). According to the defendant, it was her practice to give every patient she saw in relation to Implanon a copy of these documents. These documents provided further information about Implanon, including the potential adverse effects that a patient may suffer as a result of using Implanon. This notably included weight gain.
100 The defendant said that she then advised the plaintiff that if she
wanted to have the device inserted that day, she should go to the reception
and book another appointment for later that day.101 The defendant said that she personally handed these documents to
the plaintiff and advised her that everything they had discussed was also contained in the documents. She also asked the plaintiff whether she had any questions at that time. She urged the plaintiff to read the documents and, if she had any questions, to raise them with the defendant upon her return to FLMC later that afternoon.
102 The defendant said that she also gave the plaintiff a prescription for
her urinary tract infection and asked her to provide a sample of her urine
before she left the clinic so that they could have it analysed.
The 'New Patient Questionaire' [sic] (exhibit 2.2)
103 According to the defendant, when new patients attended FLMC there
was a procedure in place which required them to complete two forms. The practice was that, upon attending FLMC, the receptionist would provide the new patient with the two forms to complete. The forms were
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the Forrest Lakes Medical Centre patient consent form ('FLMC Patient Consent Form') (exhibit 2.1) and the New Patient Questionaire [sic] (exhibit 2.2). One related to the patient's consent for the practice to obtain or release medical information on their behalf. The other relates specifically to the patient's medical history. This medical history includes a gynaecological history, menstrual cycle, family history, personal history, past history of smoking and/or alcohol habits and known allergies. The patient will ordinarily complete these forms before seeing a medical practitioner at the practice.
104 Following the completion of these forms, the patient is then seen by
a nurse at FLMC who ordinarily checked the forms and did a number of routine checks on the patient. These checks include taking the patient's blood pressure, and measuring their height and weight.
105 According to the defendant, Yvonne was the nurse who saw the
plaintiff on 31 August 2011. At the time of the trial, Yvonne was no longer employed by FLMC having moved to the United Kingdom. According to the defendant, her specific whereabouts were unknown.
106 The 'New Patient Questionaire' [sic], which the plaintiff conceded
was completed by her on the day that she had the Implanon device inserted, included questions about the plaintiff's lifestyle. Some of the questions and answers given by the plaintiff are reproduced as follows:
Q. Do you consume alcohol? A. Y. [yes]
Q. How much alcohol do you consume in an average week? A. Nil, some/special occasions. Q. Do you take any other drugs or medication? A. N. [no].
107 I note that when the court raised the question of whether these
answers were relevant to the plaintiff's credibility as a witness, counsel for the plaintiff, whilst acknowledging that the answers provided by the plaintiff could be relevant to an assessment of her as a witness, nonetheless raised two considerations.
108 The first submission was that in relation to her answer with respect to
her alcohol consumption, namely that she either never consumed alcohol or consumed some on special occasions, he submitted that there was no evidence before the court that was inconsistent with the answers she gave in the questionnaire. Senior counsel for the plaintiff submitted that merely because she admitted living a 'party lifestyle', did not mean that she consumed alcohol.
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109 In relation to her answer in the negative to the question about
whether she took any other drugs or medication, counsel for the plaintiff submitted that the following factors were relevant in assessing her credibility:
• the information provided in the form was not on oath; • it was created several years ago when she was younger and less mature; • there are obvious reasons that could be inferred as to why she might not readily have disclosed to the medical practitioners at FLMC information about her drug taking at the time; and • the plaintiff had tendered the form knowing its contents in circumstances where she had, in evidence-in-chief, candidly admitted her drug use which ultimately supports her credibility. 110 I am satisfied on the balance of probabilities that the plaintiff was
less mature in 2011 than she is now. I am also satisfied that since the information contained in the form was not on oath, that she was being candid with the court when she tendered the form against her own interests. Consequently, that is to her credit.
However, I do not accept that I can draw some of the inferences contended for by senior counsel for the plaintiff.
112 I assume that counsel for the plaintiff was obliquely submitting that
it may be the case that she did not disclose her drug taking at the time of completing the questionnaire because of embarrassment or fear of negative attitudes being drawn against her by those at FLMC. However, no such evidence was given by the plaintiff.
113 An inference is a logical deduction drawn from proven facts.
In a civil trial, the standard of proof is on the balance of probabilities. Whilst the plaintiff was asked (in cross-examination) about the accuracy of the answer she gave in the questionnaire to the question about her alcohol consumption (ts 67), no questions were put to her (either in evidence-in-chief or cross-examination) about the answer she gave about drugs or medication. In the absence of evidence as to why she gave the answers she did in the questionnaire, in order to draw the inferences contended for by the plaintiff, the court would have to speculate about her intentions for withholding the information at the time. Furthermore, I note that the plaintiff was attending upon a medical practitioner for a medical
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procedure at the time. Providing information to a medical practitioner about drugs or medications then being consumed by a patient may be of critical importance to not only the efficacy of the medical treatment or other drugs to be prescribed, but also the dangers that might arise.
114 Nor do I accept counsel for the plaintiff's submission that her
answers about the consumption of alcohol were not inconsistent with the evidence at the trial. On the plaintiff's own evidence, she was 'partying' and 'drinking' prior to the discovery that she was pregnant. That evidence is demonstrated by her evidence that prior to falling pregnant she was:
partying a lot …, so we were drinking and smoking cigarettes and we did
take drugs as well (ts 30) (emphasis added).
She also said that at the time leading up to the discovery that she was pregnant on 12 December 2011, she had:
been taking drugs, I'd been drinking, I'd been smoking heavily, smoking cigarettes heavily, and we had only just stopped the night before to find out I was pregnant (ts 31) (emphasis added).
116 The plaintiff's reference to her 'drinking', when read in context,
could only mean drinking alcohol. Given her evidence, I reject her evidence on oath that as at 31 August 2011 her answer to the question about her alcohol consumption was accurate. The clear inference from the plaintiff's evidence is that, right up to the time that she discovered she was pregnant, alcohol was a part of her 'party' lifestyle (ts 31).
117 In my view, the false information provided by the plaintiff in the
New Patient Questionaire [sic] is relevant to the question of her honesty and reliability as a witness in these proceedings, albeit that evidence is of little weight in isolation. The issues in this case will not turn on that evidence alone.
The Implanon forms – Doctors' Checklist and Implanon Patient Consent
Form – Exhibit 3
118 In her evidence-in-chief, the plaintiff was taken to (exhibit 3),
a document that contained two separate parts on the one piece of paper. The document (which is annexed to these reasons and marked Annexure A) comprised:
•
a part titled 'Doctors' Checklist for the Insertion of Implanon' ('Doctors' Checklist'); and
•
a part titled 'Patient Consent Form for the Insertion of Implanon' (Implanon Patient Consent Form).
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119 According to the defendant, the Doctors' Checklist and the Implanon
Patient Consent Form, both of which were used by FLMC and her personally, had originated from the Royal Australian College of General Practitioners' website. Whilst they were ordinarily two separate forms, FLMC had copied and reproduced them on one page for the ease of use by patients and doctors. According to the defendant, the forms were used by FLMC for every patient when Implanon was used. They had been reduced to one page and used by FLMC for some years.
120 Despite the defence case being that the two documents sat
side-by-side on the one piece of A4 paper, the plaintiff's evidence was that she only ever saw the one part of the document, being the Implanon Patient Consent form.
121 The plaintiff confirmed that her signature appeared in two places on
the Implanon Patient Consent form. She had also written the date of 31/8/2011 on the form, which she initially incorrectly wrote as 8/8/2011 (her birthday).
122 The Doctors' Checklist has a sticker affixed to it. There is no dispute
between the parties that when the Implanon device is purchased, the packaging includes an 'Implanon NXT' sticker. It is this sticker that is affixed to the Doctors' Checklist. The Implanon NXT sticker affixed to the Doctors' Checklist is materially reproduced below and included the following:
First day of last menstrual bleed: 29/8/2011*
Date of insertion: 31/8/2011*
Implant successfully palpated in patient's
arm by doctor: (tick) □ yes □ no Implant successfully palpated in patient's
arm by patient: (tick) □ yes □ no Consumer Medicine Information and User
Guide given to patient: (tick) □ yes □ no 123 The dates marked with an asterisk (*) above were handwritten on the
sticker. Apart from the 'yes' boxes, all of which bore a tick and had been manually inserted, the rest of the writing on the sticker was in printed form.
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124 The plaintiff denied that she had provided the date of '29/8/2011' to
either the defendant or any other person on that day. If that date had been accurate, it would have meant that the plaintiff was on the third day of her menstrual cycle.
125 Whilst the date '29/8/11' was clearly written on the sticker, it is the
defendant's case that both the handwritten dates were in fact written on the
sticker by an attending nurse on 31 August 2011.126 It is accepted by the parties, and apparent from the expert opinion
evidence of Dr Schmidt (whose evidence is considered in more detail below), that as at 31 August 2011 the plaintiff was not on the third day of her menstrual cycle. By that stage she was 19 days post-conception.
127 Notably, the plaintiff ultimately accepted that she discussed her
urinary tract infection with the defendant and was provided with a prescription for antibiotics I note that the defendant says that on 31 August 2011 she also suggested that the plaintiff provide a urine sample for testing for the urinary tract infection. The FLMC records reveal that a sample of urine was sent for analysis and the results are also recorded.
128 It is not in dispute that the plaintiff was provided with a prescription
for Implanon, made a further consultation with the defendant for later that day, and left with the prescriptions for the Implanon device and antibiotic medication. The plaintiff then attended a pharmacy and purchased the items.
The second attendance at FLMC on 31 August 2011 – the plaintiff's version
129 In evidence-in-chief, the plaintiff said that when she returned to
FLMC with the Implanon device, she and Ms Kelly-Francis attended at the nurses' station. According to the plaintiff, whilst waiting for the defendant at the nurses' station, a nurse gave her forms to complete. The forms included a patient consent form (FLMC Patient Consent Form) (exhibit 2.1) and a questionnaire (FLMC New Patient Questionaire [sic]) (exhibit 2.2).
130 There is no dispute that the plaintiff completed both documents in
her own hand on 31 August 2011. However, it is the defendant's case that these documents were provided to the plaintiff when she first attended the reception area of FLMC at the time of the first consultation, not later when she attended the nurses' station. Nothing really turns on the issue whether they were completed when she first attended the reception area or later at the nurses' station, although it seems more likely that the forms
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were completed when she first attended FLMC. What is more important, at least so far as the issue of the plaintiff's reliability as a witness is concerned, is what can be inferred from the forms themselves.
131 Despite the fact that the plaintiff claims that she had, prior to
31 August 2011, frequently attended FLMC, the questionnaire was headed 'New Patient Form'. As noted above, the plaintiff accepts that she completed these forms on 31 August 2011. The provision of these forms to the plaintiff at that stage is inconsistent with her having previously attended FLMC. It is also inconsistent with FLMC's records (exhibit 9) which do not record any attendance by the plaintiff at FLMC prior to 31 August 2011. I note that the FLMC records for 31 August 2011 make reference to the plaintiff being a new patient. I am satisfied on the balance of probabilities, contrary to the plaintiff's evidence, that the plaintiff had not been a patient of FLMC prior to 31 August 2011. This is yet another matter that affects the plaintiff's credibility as a witness.
132 According to the plaintiff, when the defendant did attend the nurses'
station, the people present with her were the defendant, a nurse and Ms Kelly-Francis. Having purchased the Implanon device and returned to FLMC, the box containing the Implanon device was handed to the defendant. The Implanon box, a sample of which was tendered by the plaintiff (exhibit 1) contained:
• the Implanon NXT device; • labels; • user guide; • product information; and • consumer medicine information.
The plaintiff said that she never read any of the documents contained within the Implanon packaging.
134 So far as any conversation occurred between the plaintiff and the
defendant whilst they were at the nurses' station, it is the plaintiff's case that not much was said by the defendant. On her own evidence however, the plaintiff conceded that the conversation she had with the defendant at this time included:
•
her disclosure to the defendant that she was inconsistent or irregular with taking the pill;
• that she had been told by a friend about Implanon;
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• the defendant had told her there were two forms of Implanon, including one form where it was administered by injection and lasted three months, and one which involved the insertion of the device which lasted three years; and • the defendant told her that the Implanon device could be removed from her body. (This was important to the plaintiff because she had concerns about her skin. If she had Implanon in the form of an injection and had an adverse skin reaction, it would mean that she would have to wait for three months before the injection wore off as opposed to simply having the device removed if she had that form of Implanon). 135 As already noted above, the plaintiff said that at some point in time
prior to filling in the forms, she spoke briefly to the defendant about when her last period was. According to the plaintiff, she told the defendant that she was unsure when it was, but believed it to have occurred about a week earlier.
136 Whilst the plaintiff clearly said in her evidence that she had informed
the defendant that she had been irregular in taking the pill, it is unclear whether the plaintiff also intended to convey in her evidence that she also told the defendant that she had stopped taking the pill about two weeks prior to attending FLMC. Whether this was said to the defendant or not, it is clear from the plaintiff's evidence that she had last taken the pill some weeks prior to attending FLMC. On one version, she had stopped taking the pill 'up to two weeks prior' (ts 22) to attending FLMC (in other words, on or about 17 August 2011). Her evidence however, tended to suggest that she had last taken the pill around her birthday (in other words, on or about 8 August 2011) (ts 22). Whilst there is no evidence before me about the effectiveness of the 'pill' as a contraceptive device, I note that according to the evidence of Dr Schmidt which was based upon ultrasound dating, the plaintiff's last menstrual period was on or about 30 July 2011 and that conception occurred on or about 12 August 2011. The fact that the plaintiff was unable to recall precisely when she stopped taking the pill causes me to have further doubt about the reliability of the plaintiff's evidence.
137 On the plaintiff's case, having returned to FLMC after purchasing the
Implanon device, she handed the box containing the Implanon device to either a receptionist or nurse at FLMC. From there, a nurse led her to a chair to have the Implanon inserted. Whilst the plaintiff said that the box or kit containing the device was opened in her presence, the sticker
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was never removed from the packaging. Furthermore, the plaintiff disputes the defendant's assertion that at that stage a nurse confirmed with her that she was between day one and day five of her menstrual cycle. The plaintiff also disputes that:
• she told the nurse that the first day of her last menstrual bleed was 29 August 2011; or • the nurse in her presence, then completed the sticker and inserted the date of '29/8/11' as being the first day of the plaintiff's menstrual bleed; or • the nurse, in her presence, put the Implanon sticker on the form headed, 'Doctors' Checklist'. 138 According to the plaintiff, just prior to having the Implanon device
inserted, she lay down in the chair because of her fear of needles. Ms Kelly-Francis stood next to the chair (although I note that in cross-examination she agreed with the proposition that she was lying on an examination table at the time). The defendant then came in to perform the insertion. The defendant then swabbed her arm and inserted the Implanon device into her arm.
Following the insertion, the defendant made her feel where the rod was inserted in her arm, which caused her to become nauseous.
140 According to the plaintiff, the only discussion about the Implanon
device at that point was that the plaintiff advised the defendant that her arm was hurting. The plaintiff was then made to sit back up in a chair, and a bandage was applied to her arm. She then left FLMC with Ms Kelly-Francis. I note that Ms Kelly-Francis made no mention of any of this having occurred at all.
141 As already noted above, it is the defence case that the defendant took
the plaintiff through the Implanon Patient Consent Form prior to inserting the Implanon device. The plaintiff's recollection is that did not occur, although she accepts that she was asked to sign the Implanon Patient Consent Form whilst she was in the nurses' station, which she did before the defendant attended to insert the Implanon device.
142 Even if it is the case that the plaintiff did not actually see the
Doctors' Checklist, it is the case that most of the matters raised in both the Implanon Patient Consent Form and the Doctors' Checklist were
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discussed with her at some point. The plaintiff admitted that the
defendant:
• took her through the benefits and risks of the Implanon device; • discussed with her the side-effects of the device which may include irregular bleeding, no bleeding, headaches, weight gain and breast symptoms; • told her that there may be bruising and discomfort for up to one week after insertion of the device; • told her that there was a risk of the implant moving from its original position which could make removal more difficult; • told her that the Implanon was an effective birth control medication but that there was still a risk that she may fall pregnant while she was on Implanon if the plaintiff was to have sex within the first seven days of having the Implanon device inserted; • advised her that the Implanon device had to be removed after three years; • advised her that the insertion and removal of the implant may leave a small scar; • told her that she would use a local anaesthetic when she was inserting the Implanon; and • asked her about whether the plaintiff had any allergies, and the plaintiff advised her that she did not. 143 Again, noting that not only did Ms Kelly-Francis' fail to mention any
of this conversation between the plaintiff and the defendant, but that it was her evidence that the defendant did not ask the plaintiff any questions at all, the plaintiff agreed that she had assured the defendant that she understood what the defendant had told her about the Implanon device and that she had signed and dated the patient consent form. The plaintiff also agreed that she told the defendant that she wanted to go ahead and have the Implanon inserted that day.
144 Furthermore, it was not disputed by the plaintiff that despite her
assertion that she did not see the Doctors' Checklist, the defendant did do
at least some of the things required by the checklist, namely:
•
that the implant was successfully palpated in the patient's arm by the defendant; and
•
that the implant was successfully palpated in the plaintiff's arm by the plaintiff.
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145 The plaintiff also admitted that she was provided with a number of
documents at about the same time as having the device inserted in her arm. Those documents, which became exhibits 6 and 7 respectively, included:
•
an A4 page document headed: 'What are the possible risks of using Implanon?' This document included information about the risks of becoming pregnant whilst using the Implanon device.
•
a coloured booklet titled 'Implanon NXT and you' which included information that:
o Implanon was not 100% effective (it was claimed
to be 99.95% effective); and
o That the right time for the Implanon device to be inserted was usually 'during the first five days of [a woman's] period if [she was not] not using any other method of hormonal contraception'; and
o That '[i]t is very important for [a woman's] doctor to make sure [she was not] pregnant before inserting Implanon. The doctor may confirm this by asking [the patient] some questions and/or conducting a pregnancy test'; and
o That if the Implanon device was 'inserted at any other time apart from the right time of [a woman's], [she would] need to use a barrier or avoid intercourse for the first seven days'.
The plaintiff disputed the assertion that the defendant had completed the Doctors' Checklist in her presence.
147 The plaintiff conceded however that the defendant gave her other
advice at the time, including advising her to abstain from sexual intercourse for a week after the Implanon device was implanted and that she should use a barrier method for the first seven days after the insertion of the device. The plaintiff followed that advice.
148 Whilst the plaintiff conceded that she received numerous documents
about the Implanon device from the defendant, she said she never read them because. This was because the defendant had already taken her
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through the potential side-effects from Implanon, which was sufficient for
her purposes.149 Critically, the plaintiff also admitted receiving a card upon which the
defendant had recorded when the implant was inserted and the date that it had to be removed. The plaintiff's evidence on this issue was that the defendant had given her the card, which told her 'the date of the insertion and the date that it has to be taken out in three years' and that the defendant 'completed that card before she gave it to [the plaintiff], [and] put the dates in' (ts 87). In my view, the plaintiff's concession in relation to this card tends to lend support to the defendant's contention that the Implanon NXT sticker was completed by the nurse on the day. Both the card and the Implanon NXT sticker came from the same packaging.
150 The plaintiff said that the documents she received from the
defendant, including the Implanon card with the dates written by the defendant, were probably still in a filing cabinet at home. The plaintiff never produced these documents at the trial.
151 The plaintiff accepts the expert opinion of Dr Schmidt that, at the
time that the device was inserted, she was in fact 19 days post-conception. Her last menstrual period prior to this commenced on or about 30 July 2011.
She also accepts that her last menstrual period, before seeing the defendant, would have finished between 3 and 5 August 2011.
153 It is of some significance that the plaintiff had, at the time she
completed the New Patient Questionaire [sic] (exhibit 2.2) on 31 August 2011, noted not only that that her periods were regular, but that they lasted
'5 – 7 days'. In those circumstances, despite the fact that she was already
pregnant at the time the Implanon device was inserted (having on the uncontroverted expert evidence conceived some 19 days earlier), it is difficult to understand on her evidence why she would have told the defendant that she 'wasn't quite sure [when her last period was, but] thought it was possibly about a week prior' (ts 19). Based upon her menstrual history, save for the fact that she was pregnant, she would have been due to be menstruating at the very time she had the Implanon device inserted. That tends to suggest that the date of 29/8/2011, which was ultimately recorded on the Implanon NXT sticker, is something more than mere coincidence.
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The second attendance at FLMC on 31 August 2011 – the defendant's
version
The defendant said that at about 3.40 pm on 31 August 2011, she was advised that the plaintiff had returned to FLMC. She then attended the nurses' station. The defendant said that she recalled seeing the plaintiff lying on the bed. Apart from the plaintiff and defendant, the only other person present in the room was the nurse Yvonne. No other person attended with the plaintiff at any stage of the process.
155 The defendant then checked the expiry date on the Implanon pack
which had been obtained by the plaintiff, and then checked the Patient Consent Form for the Insertion of Implanon. She specifically remembered checking the form to confirm that the plaintiff had signed it and that everything was correct and in order for the Implanon device to be inserted. The defendant then signed the 'Pre Insertion Section' of the 'Doctors' Checklist' in the plaintiff's presence.
156 According to the defendant, she then asked the plaintiff whether she
had any concerns and again specifically asked her if she had her period that day. This was done to ensure that the plaintiff was in the first five days of her menstrual cycle. According to the defendant, she kept repeating these questions in the consultation room. The defendant said she could specifically remember being with the plaintiff and the nurse 'Yvonne'. She again asked the plaintiff whether she was pregnant. Despite being again told by the plaintiff that she was not pregnant, the defendant said that she offered to perform a pregnancy test. According to the defendant, she specifically remembered that the plaintiff laughed at the suggestion and said: 'I'm not pregnant, doctor', and 'I have my period' (ts 212). The defendant said that she made it clear to the plaintiff that it would be easy to do a pregnancy test because the plaintiff had already provided a sample of her urine. However, according to the defendant, the plaintiff was adamant that she was not pregnant and did not want a pregnancy test to be done.
157 At that point, the defendant said that she again explained to the
plaintiff the procedure that would follow. The plaintiff was lying down at
that stage. The Implanon device was then inserted in the plaintiff's arm.
Having inserted the Implanon device, the defendant then, in accordance with the manufacturer's instructions, palpated the plaintiff's arm to check the Implanon device. She also asked the plaintiff to feel her arm to ensure that the Implanon was in place under her skin. The plaintiff
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did this. The defendant also asked the nurse to feel for the Implanon,
which she did. All of this was consistent with the Doctors' Checklist.159 The defendant said that she then treated the insertion by placing
a 'Steri-Strip' over the wound to prevent bruising. The defendant then repeated some of the advice that she had given to the plaintiff duration the earlier consultation, namely that the plaintiff may suffer side-effects to the device such as itching, pain, bruising and a scar.
160 Following the insertion of the Implanon device, the defendant signed
the 'Insertion Section' of the Doctors' Checklist (exhibit 3) and handed the plaintiff a card. The plaintiff was also given the information document being the Implanon manufacturer's information and the Implanon patient card, both of which were contained inside the Implanon packaging. The information on the card included the date that the Implanon device was inserted to provide a reminder to the patient about when the device needs to be removed. The defendant herself wrote the date for removal of the Implanon device on the card. As noted above, the plaintiff accepts that she was given the card on the day that the device was inserted.
161 According to the defendant, both she and the plaintiff then signed the
'Post Insertion Section' of the 'Patient Consent Form for the Insertion of Implanon'. Notably, according to the defendant, the Implanon NXT sticker which contained the words 'First day of last menstrual bleed 29/8/11' was placed on the Doctors' Checklist before the defendant signed the form.
162 Following that, she told the plaintiff to return to FLMC a week later
for a review. The defendant then warned the plaintiff to take other contraceptive measures for the next seven days if she intended to have sexual intercourse as there was a risk of conceiving in the first seven days post insertion of the device. She also told the plaintiff that if she had any concerns, not to hesitate to return to see the defendant. The plaintiff left with the various documents and appeared content.
Summary of the defendant's evidence on the critical issues in dispute
163 According to the defendant, by the time she inserted the Implanon
device into the plaintiff's arm, she had unequivocally been informed by
the plaintiff that:
• she was not pregnant; and •
she was then in the first five days of her menstrual cycle and in fact was on day three of her menstrual cycle.
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164 Furthermore, the defendant said that on at least two separate
occasions she asked the plaintiff questions to confirm that she was within the first five days of her menstrual cycle. These questions were asked during the first consultation and again during the second consultation before she inserted the Implanon device.
The plaintiff's attendances at FLMC after 31 August 2011 and subsequent events
165 A couple of weeks after the Implanon device was inserted in her arm,
the plaintiff suffered 'period-like' pains in her lower stomach. She also had severe acne and back pains. Although she previously had skin problems, she now had severe acne on her back, shoulders, chest and face. In addition, she was feeling extremely tired but attributed that to having started a new job. Consequently, according to the plaintiff, she returned to FLMC to seek medical advice in relation to both her abdominal pains and her severe acne problems. There were also two further visits to FLMC with respect to an unrelated work injury that she suffered.
The first subsequent visit to FLMC – 6 September 2011
166 The plaintiff's memory was that there were four subsequent visits to
FLMC. I note however that the FLMC Records tend to suggest that there were in fact five separate attendances at FLMC after her attendance of 31 August 2011.
167 The first subsequent visit was a couple of weeks after the Implanon
device was inserted. On the plaintiff's version, this visit related to her abdominal pains. On this occasion she recalled being seen by the defendant.
The defendant agreed that after inserting the Implanon device on 31 August 2011, she next saw the plaintiff on 6 September 2011. This was for a follow-up after inserting the Implanon, which the defendant had recommended to the plaintiff immediately before the plaintiff left FLMC on 31 August 2011. It was also that the case that on 31 August 2011, as well as inserting the Implanon device, the defendant prescribed medication to treat the plaintiff's urinary tract infection, namely Cephalexin capsules.
| 169 | According to the defendant, the consultation on 6 September 2011 was not only a follow up or review following the insertion of the Implanon, but also to ensure that the urinary tract infection had resolved. |
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By that stage, the plaintiff had completed the course of antibiotics prescribed to treat the urinary tract infection. Although the defendant disputed the suggestion that on this occasion the plaintiff complained of vomiting foam, she did concede that vomiting may be a symptom associated with pregnancy. The defendant also facilitated a medical certificate for the plaintiff.
170 I note that the FLMC Records (exhibit 9) record an attendance by the
plaintiff on 6 September 2011 where she was seen by the defendant. The records indicate that the consultation was with respect to the plaintiff's urinary tract infection. There is no mention in the notes of abdominal pains that the plaintiff said she was then suffering. The FLMC records note:
• the results of a requested urine analysis; • the prescribed medication for the urinary tract infection was ceased; and • the creation of a medical certificate for the plaintiff. 171 I also note that the defendant subsequently tendered a copy of the
medical certificate that had been prepared and signed by the defendant on
that day (see exhibit 8).
The second subsequent visit to FLMC – 11 October 2011
172 To the plaintiff's memory, the second consultation at FLMC after the
insertion of the Implanon device occurred a couple of months later. This visit related to her severe acne. She could not recall the name of the doctor that she saw on this occasion, but it was not the defendant. The doctor prescribed medication to treat her acne.
173 With respect to this second consultation at FLMC, the FLMC
Records note an attendance by the plaintiff on 11 October 2011 where she was seen by Dr Jian Ruan for two reasons. One was indeed for her acne problems. The other related to the condition of Paroncychia that the plaintiff was then suffering. This related to an infected nail on a finger of the plaintiff's left hand. She was prescribed medication and treatment for both the acne and Paroncychia.
NEW PT
MOVED TO THPORNLIE [sic] FROM SOUTH WEALES [sic]
WORK FULL TIME
NO KIDS LIVES WITH PARTNER
HERE FOR URINARY TRACT INFECTIONSX
AND IMPLANON COUNSELLING AND INSERTION
263 Following these notes, further notes appear. These recordings are
notable for a number of reasons. Firstly, they are in a different size font and are mostly in lower case. Secondly, and more importantly, part of the entry under the heading of 'Management' identically replicates the exact wording contained on the 'Doctors' Checklist' which is part of exhibit 3 (the relevant part is reproduced below, part of which is underlined for ease of reference). There are no abbreviations in this section. Immediately following this part, there are then further notes that include spelling errors and abbreviations. The notes are materially reproduced (as they appear in exhibit 3, including the spacing between lines, but with underlining added for emphasis) as follows:
Reason for contact:
UTI (Urinary Tract Infection)
Implanon consultation and/or counselling
Management
came for Implanon insertion.
the procedure explained to patient.
The post-procedure d/w pt (meaning discussed with patient)
pt consent (meaning patient consent)
under aseptic technique
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insertion of implanon done
no problems
patient and the nurse felt the implanon
card was given
r/vNo contraindication according to the Manufacturer's product information, particularly medications which can decrease the effectiveness of Implanon No allergies to local anaethestic, sex hormones or plastics.
Implant planned for day 1-5 in cycle, or as per manufacturers instructions.
I have discussed the insertion and removal process of Implanon.
Pre-Insertion Section of Patient Consent Form completed and returned.
Side effects explained, patient has Consumer Medicine Information (CMI) and advised to attend for review any concerns.
Post-Insertion Section of Patient Consent Form completed and copy provided to patient and record.
Insertion adequately documented in record.
frequency
dysuria
after intercourse
no vag d/c
abdomin [sic] soft
no loin pain
lower abdom [sic] discomfort
plan
MSU FOR MS&c
fluids
ural
abs
f/u
264 Despite the obvious, the defendant insisted that the notes were all
written and made independently by her, although she did concede that she was generally guided by the instructions provided by the Royal Australian College of General Practitioners with respect to the insertion of Implanon.
265 Having heard the language ordinarily used by the defendant in her
evidence before me, even allowing for and taking into account her very high level of education, I have no hesitation in rejecting the defendant's evidence that she made the notes independently from either the 'Doctors' Checklist' or some other source. It is clear that a section of the FLMC Records relating to the plaintiff's consultation with the defendant on 31 August 2011 was a 'cut and paste' from the 'Doctors' Checklist',
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a proforma used by FLMC, or simply copied from some relevant source. The defendant's stoic refusal to accept the obvious did not assist her credit as a witness. This does not however, lead to an automatic conclusion that the things referred to in the FLMC Records were not in fact canvassed by the defendant with the plaintiff.
266 I accept the defendant's evidence that the various items recorded in
the notes, albeit they were identical to what was contained in the 'Doctors' Checklists,' were things either discussed with the plaintiff in either the first or second consultation that day, carried out during consultation with the plaintiff, or taken into consideration by the defendant in inserting the Implanon device. Indeed much of this was not disputed by the plaintiff (see [80], [134], [142], [144], [145], [147] and 149] above).
267 With reference to the FLMC Records for 31 August 2011, counsel
for the plaintiff put to the defendant that her notes did not record that the plaintiff had told her that she was on 'day three' of her menstrual cycle. Rather, the notes read 'Implant planned for day 1 - 5 in cycle, or as per manufacturers instructions'. Consequently, counsel for the plaintiff suggested that what was recorded in the notes reflected what the defendant knew should happen, rather than what the plaintiff actually told her. The defendant rejected that suggestion.
268 In my view, as already noted, whilst part of the notes obviously were
not an independent recording by the defendant of what she had done or ascertained, but rather were likely either a 'cut and paste' or proforma used by FLMC, nonetheless the date recorded on the sticker as the first day of the plaintiff's last menstrual cycle was '29/8/2011'. This meant that if the date had been accurate, the plaintiff would have been on the third day of her menstrual cycle. In any event, the defendant was adamant, and I accept, that she was told by the plaintiff that she was on her third day of her menstrual cycle.
269 It is important to note that the date inserted on the sticker being
29 August 2011, and which was ultimately affixed to the 'Doctors' Checklist, was not written by the defendant but by Yvonne, the nurse assisting the defendant. According to the defendant, the plaintiff also confirmed this date by telling it to the nurse.
270 According to the defendant, the plaintiff had told her that she had
done her homework about Implanon and knew in advance of the
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consultation that the device had to be inserted during days 1 to 5 of her
menstrual cycle.
The side-effects of Implanon
271 It is not in dispute that during the consultation with the defendant on
31 August 2011, the plaintiff was told that one of the side effects of the
Implanon device was weight gain.272 The plaintiff's evidence-in-chief included that, in the two weeks prior
to discovering she was pregnant, her brother complimented her on how much weight she had lost. In fact, she said that she had lost a lot of weight. Her evidence was (ts 31 - 32):
Plaintiff: … I'd actually lost quite a bit of weight prior to – two weeks prior to finding out I was pregnant my brother just complimented me when we were down at the beach and I was in a bikini at how much weight I'd lost. I didn't put on any weight at all.
Mr McIntyre SC:
All right. So we're talking about a few weeks before Christmas. Did you have any awareness that you were pregnant?
Plaintiff: I didn't have any awareness. It wasn't until my partner Ryan at the time, his sister said my stomach was sitting unusual or funny. She clarified by saying that I hadn't put on weight but it looked funny, like - almost a bit like a pot belly.
273 If the plaintiff's evidence is to be accepted, strangely, the medical
records tend to suggest the opposite. The FLMC Records show that on 31 August 2011 the plaintiff's weight was recorded as being 60 kg. The CMC Records show that on 14 December 2011, the plaintiff's weight was 62 kg. In the CMC records, Dr Obadimeji recorded in his notes on 14 December 2011 that he was told by the plaintiff that:
In fact if not for weight gain and her abd becoming bigger she wont [sic] have had any tests done which then confirmed pregnancy.
The Expert Evidence
274 Two experts were called to give evidence at the trial. One was called
by the plaintiff, the other by the defendant. In the end, none of the expert opinion evidence was either controversial or really challenged by either party.
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Dr John Andrew Schmidt
275 The plaintiff called Dr John Andrew Schmidt, a highly qualified
medical practitioner and well-recognised expert in the area of obstetrics and gynaecology. The defendant did not challenge Dr Schmidt's qualifications or his status as an expert in obstetrics and gynaecology. Dr Schmidt had provided three separate reports in the lead up to giving evidence.
276 According to Dr Schmidt, Implanon has to be inserted within
1 to 5 days of the last menstrual cycle. Alternatively, it could be inserted up to the seventh day of the menstrual cycle if another form of contraception was also used in the last two days of the 7 day period.
277 According to Dr Schmidt, the significance of the first five day period
of the menstrual cycle is twofold. Firstly, it enables the doctor to positively know that that the patient is having a period. Secondly, the timing is relevant to the physiological mechanism of being able to prevent ovulation by allowing the Implanon time to inhibit ovulation.
On the available evidence, Dr Schmidt endorsed the conclusions, based largely on the result of the morphology (ultrasound) scan, that:
• ultrasound dating equated the plaintiff's last menstrual period prior to the insertion of the Implanon device as commencing on or about 29 or 30 July 2011 and concluding sometime between 3 - 5 August 2011; • conception occurred on or about 12 August 2011; • the plaintiff was '19 days pregnant at the time that the Implanon was inserted' on 31 August 2011; and • as at 12 December 2011, the plaintiff's pregnancy was at 19 weeks' gestation. 279 According to Dr Schmidt, it was commonly understood among
obstetricians and gynaecologists that the first day of menstrual bleeding is
the first day of a woman's menstrual cycle.280 Noting the defendant's contention that she had complied with the
manufacturer's instructions, namely that the Implanon should be inserted in the first five days of the menstrual cycle, Dr Schmidt said that in circumstances where there was some uncertainty surrounding the patient's menstrual history, an option available is to perform a pregnancy test.
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He did note that such tests were not routinely recommended nor were they a requirement before inserting Implanon.
281 It was Dr Schmidt's opinion that, if the defendant had been informed
by the plaintiff that she wasn't 100% sure of the dates of her last menstrual bleed, then the correct protocol would have been for the defendant to inform the plaintiff that she should have the Implanon inserted in her next cycle.
282 Dr Schmidt was asked whether the Implanon insertion would have
masked symptoms of pregnancy, such as the loss of, or light periods, such that it materially contributed to the plaintiff's pregnancy developing to the stage it did prior to detection. In response, Dr Schmidt noted that not all women have symptoms of pregnancy. However, Implanon will cause amenorrhea. Dr Schmidt suggested that about 40% of women did not know they were pregnant. Apart from amenorrhea, they may not have other symptoms of pregnancy such as nausea, breast tenderness, headaches and lethargy. Consequently, the belief that the Implanon device had been effective could mask the pregnancy, thus causing the plaintiff to believe that her lack of periods was a direct result of the Implanon. Consequently, a patient may not notice the pregnancy.
283 Dr Schmidt was of the opinion that the difficulties that the plaintiff
suffered during the birth of her child were unrelated to the insertion and removal of the Implanon device during the plaintiff's pregnancy. Furthermore, he said that since the Implanon was removed at about the 20 week mark, it was not responsible for any birth difficulties.
284 Itis clear that at the time Dr Scmidt was first asked to provide an
opinion, his instructors believed that the plaintiff had fallen pregnant after the Implanon device had been inserted by the defendant. This was evident from the fact that one of the questions posed for Dr Schmidt's consideration initially was:
Did my client fall pregnant as a result of any deficiency in the medical care provided to her? Please comment. If a correct menstrual history was not taken by Dr Al-Hakeem, then Lisa Stobart fell pregnant as a result of a deficiency in the medical care provided.
In cross-examination, Dr Schmidt noted that at the time of preparing his first report, which was general in nature, his instructions included:
It is alleged that the implant failed as [the plaintiff] fell pregnant shortly thereafter giving birth to a baby girl on 18 May 2012.
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These instructions are consistent with the plaintiff initially believing that she had conceived after the Implanon had failed.
287 Ultimately, Dr Schmidt concluded that if the defendant had enquired
into when the plaintiff's last menstrual cycle was and had been advised that the she was in the first five days of her menstrual cycle, then the defendant 'acted in a manner which was widely accepted by peer professional opinion as competent professional practice'. This was on the basis that there was no prerequisite, nor was it protocol, to necessarily perform a pregnancy test on every patient who wanted to have Implanon inserted. The accepted protocol was to ask the patient when her last menstrual period was. According to Dr Schmidt, the enquiry that needs to be made of the patient is if she was then within the first five days of her menstrual cycle before inserting the Implanon. Dr Schmidt noted that the manufacturer's instructions allowed for a period up to day 7, in which case the patient should be advised to use additional contraception.
Dr Elizabeth Kate Marles
Dr Elizabeth Kate Marles was called by the defendant as an expert.
289 Dr Marles held a number of positions. This included being a member
of the board of GP Synergy, a general practice training organisation. Dr Marles was also a director and staff specialist of the Hornsby-Brooklyn General Practice Unit. Her role there included supervising and training other medical practitioners. Dr Marles was also a member of the Variation Advisory Group of the Australian Commission on Safety in Health and Healthcare since 2013. She was involved in providing expert general practice advice on the development of an atlas which identified areas of interest to various medical specialties including what was accepted as 'best practice'.
290 Having read Dr Marles' curriculum vitae, I was satisfied that she was
qualified as a medical practitioner to give expert opinion evidence in relation to the critical issues in the trial, namely whether the defendant had followed commonly accepted practices in relation to the insertion of Implanon. In any event, the plaintiff accepted Dr Marles as an expert in the proceedings.
291 Dr Marles was aware that the essence of the allegations against the
defendant included that she had failed to take an accurate menstrual
history from the plaintiff and consequently:
(a)
failed to insert the Implanon between day one and five of the cycle; and
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(b) failed to recommend to the patient that she return at the start of her next cycle to have the device inserted. 292 Dr Marles' noted that it is important that Implanon be inserted
between days one and five of the menstrual period to ensure the patient is not pregnant at the time that the Implanon is put in. According to Dr Marles and consistent with the evidence of Dr Schmidt, in circumstances where there is some doubt as to whether the patient is pregnant or when the first day of their last menstrual period was, the patient should be advised by the medical practitioner that the Implanon cannot be inserted at that time and they should return when they get their next period to have it inserted.
293 Again, consistent with Dr Schmidt's opinion, Dr Marles' opinion was
that, if before inserting the Implanon device the defendant had been told by the plaintiff that she was in the first five days of her menstrual cycle and was not pregnant, the defendant had acted in a manner which is widely accepted by peer professional opinion as competent professional practice at the time that this service was provided to the plaintiff.
In coming to her conclusions, Dr Marles noted that the defendant had documented the date of the last menstrual period as 29 August 2011 which was consistent with what she had been told about the defendant's conduct on the day.
295 I do note Dr Marles' opinion that it would not be sufficient to merely
ask the patient whether she was pregnant or not. Before inserting the Implanon device, the doctor is required to ensure that the patient was in the first five days of her menstrual cycle. This can be done by taking a menstrual history from the patient to determine whether they were in fact in the first five days of their menstrual cycle.
296 In cross-examination, counsel for the plaintiff asked Dr Marles if her
opinion would change if she knew that the person who documented the dated of 29 August 2011 was not in fact the defendant, but rather someone else. Ultimately, it seems that Dr Marles' originally erroneously assumed that the defendant had in fact written the date '29/8/2011' on the Implanon NXT sticker on the basis that 'it is part of the practitioner's responsibility to document what they've done'. It became clear, and not disputed, that the person who actually recorded the date of the Implanon NXT sticker was the nurse Yvonne, not the defendant. Ultimately however, the real issue was not who actually wrote the date, but whether the
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defendant was aware of what was written on the sticker at the time and
took steps to check that it was accurate.
Dr Schmidt's expert evidence based upon the ultrasound, the significance of the timing of 31 August 2011 and the history of the plaintiff's menstrual cycle
297 Counsel for the plaintiff, in challenging the defendant's evidence that
the plaintiff had specifically told her that she was on the third day of her menstrual cycle, suggested to the defendant that a woman would know whether or not she was in fact on the third day of her menstrual cycle. In fact, on the evidence before me which was not challenged by the defendant, the plaintiff could not have been menstruating because she was in fact pregnant.
298 Logically, ordinarily one could assume that a female would know
whether or not she was on the third day of her menstrual cycle, particularly given the evidence in this case that the plaintiff's periods were regular and lasted 5 to 7 days. However, the logic of this contention needs also to be applied to the plaintiff's own case including her own evidence and that of her expert Dr Schmidt.
299 The plaintiff's evidence was she had not told the defendant that she
was on the third day of her menstrual cycle, but had in fact told the defendant that she wasn't sure when her last period was and estimated that it had finished about a week earlier. Neither proposition could have been correct since the evidence was that, as at 12 December 2011, the foetus was 19 weeks and 1 day old. Working backwards and noting the expert evidence given by Dr Schmidt, ultrasound scan dating suggested that the date of conception was 12 August 2011. Consistent with her evidence and that of Dr Schmidt's, as at 31 August 2011 the plaintiff was 19 days post-conception and was overdue for a period. I note Dr Schmidt's evidence in this regard included (ts 136 and 137):
Ultrasound dating equates the last menstrual period being 30 July 2011 and correlates with the conception being on 12 August 2011.
And:
The ultrasound evidence suggested that on 31 August 2011 at the time of the insertion of the Implanon [the plaintiff] was 19 days post-conception and five days overdue for a period.
301 The plaintiff's evidence that she told the doctor that she thought her
last period was about a week earlier, means that she was about
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three weeks out with her estimate. It is difficult to reconcile her evidence about what she told the defendant using her counsel's proposition on the point.
302 I also note that, based upon the plaintiff's menstrual cycle history and
the ultrasound scan, had it not been for the pregnancy, as at 31 August 2011 the plaintiff would most likely have been in the first five days of her menstrual cycle. As noted at [300] above, Dr Schmidt's evidence was that, as at 31 August 2011, the plaintiff was 5 days overdue her period. This fact appears to be more than mere coincidence. It is consistent with the defendant, knowing that her period was due and having a regular menstrual history, falsely informing the doctor that her menstrual cycle had commenced 3 days earlier in the belief that her period was imminent. In the end however, I do not have to form a concluded view on why she may have wrongly provided the date of 29 August 2011 as being the first day of her last menstrual cycle.
Conclusions on the facts
303 In in my view, the plaintiff was not a reliable witness and lacked
credibility in many parts of her evidence. The weight of the combination of matters which I have found her to be wrong or unreliable leads to the inevitable conclusion that she has failed to satisfy me on the balance of probabilities that her claim has been made out. Critically, she lacked credibility on those issues which have been set out above, which include:
•
The dates she had attended FLMC, including the fact that I have found that she did not attend FLMC prior to 31 August 2011 as asserted by her.
•
Her inability to recall which practitioner she had seen on a number of occasions that she attended FLMC.
•
The reasons she had attended FLMC on a number of occasions, including her failure to mention in evidence-in-chief that on 31 August 2011 she had also attended in relation to her urinary tract infection.
•
The false evidence she provided in the New Patient Questionaire [sic] in relation to her drug and alcohol history.
•
Her inability to remember which doctor she saw at CMC and her evidence that she had seen the same doctor both before and after she
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had the ultrasound, in circumstances where she actually saw different
doctors – Dr Cheng and Dr Obadijemi.
• Her changing evidence about who had provided the advice to her that she was too advanced in her pregnancy to terminate it. • Her attempts to understate or minimise her drug usage. • The significant differences between the plaintiff's evidence-in-chief and cross-examination, including the significant matters discussed between her and the defendant during the first and second consultations on 31 August 2011. • Her claims that she told the defendant that she thought her last period was about a week before the consultation, when it is clear that she was 19 days post-conception at the time the Implanon device was inserted and her last period was in fact on or about 29 or 30 July 2011. 304 In arriving at my conclusions on the facts of this case, I do not ignore
that there were some aspects of the defendant's evidence that tended to undermine her credibility. In particular, I reject the defendant's evidence that all of the notes made on 31 August 2011 in relation to the plaintiff's attendance that day, which were documented in the FLMC Records, were independently made by her. I am also of the view that, at times, she exaggerated her evidence. I do not accept her evidence that she was able to recall the conversations she had with the plaintiff with the precision she suggested. Furthermore, I am satisfied that Ms Kelly-Francis was with the plaintiff at some stage on the 31 August 2011. Nonetheless, I accept the core of the defendant's evidence on the critical facts namely that prior to inserting the Implanon device, the plaintiff told her, that:
• she was not pregnant; • that she was in the first five days of her menstrual cycle; and that her menstrual cycle had commenced on 29 August 2011.
Quantum of Damages
305 Although I have found for the defendant on the issue of liability,
ordinarily I must make a provisional assessment of damages to cover the situation where, if my decision on liability is varied on appeal, the matter need not be remitted back to the District Court for assessment of damages: Kerr v Minister for Health [2009] WASCA 32 [10].
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The plaintiff's claim for damages was particularised under the following headings:
Non-pecuniary loss $70,000.00 Past economic loss $89,000.00
Future economic loss $9,603.00
Expenses associated with raising a child $321,442.05 307 The general principle governing damages in tort is the recovery of a
sum of money which will put the party who has either suffered or been injured, in the same position as he or she would have been prior to being affected by the wrong for which he or she receives compensation or reparation: Cattanach v Melchior [100] (Kirby J).
Furthermore, in Nominal Defendant v Gardikiotis (1996) 186 CLR 49, 54 McHugh J said:
When a defendant has negligently injured a plaintiff, the common law requires the defendant to pay a money sum to the plaintiff to compensate that person for any damage that is causally connected to the defendant's negligence and that ought to have been reasonably foreseen by the defendant when the negligence occurred. The sum of money to be paid to the plaintiff is that sum which will put the plaintiff, so far as is possible, 'in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation'. Consequently, when a plaintiff asserts that, but for the defendant's negligence, he or she would not have incurred a particular expense, questions of causation and reasonable foreseeability arise. Is the particular expense causally connected to the defendant's negligence? If so, ought the defendant to have reasonably foreseen that an expense of that kind might be incurred?
This general proposition was later affirmed by the High Court in
Cattanach v Melchior [71] (McHugh and Gummow JJ).
310 The difficulty in assessing provisional damages in this case arises
because, save where the amounts are agreed by the defendant or can be independently and objectively assessed, my findings in relation to the plaintiff's credibility significantly impacts upon the court's ability to properly assess the quantum of damages.
The plaintiff's claim for non-pecuniary loss ($70,000)
311 Noting that the plaintiff's claim for damages are subject to the
restrictions imposed by s 9 of the CL Act, the defendant does not dispute
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that the plaintiff suffered the injuries pleaded in pars 17(a), 17(b), 17(d) and 17(e) of the Amended Statement of claim. The defendant admits that Taylor suffered dystocia.
Nor does the defendant dispute that the plaintiff:
• suffered the symptoms and disabilities pleaded in pars 18(c), 18(d) and 18(f) of the Amended Statement of Claim; or • had the medical treatment pleaded in pars 20(a), 20(c), 20(d), 20(f), 20(g) and 20(h) of the Amended Statement of Claim as a consequence of the pregnancy. 313 I note that save for the plaintiff's evidence to the effect that she was
stressed and shocked to discover that she was pregnant, including the brief distress she suffered at the time of the ultrasound and the belief that the unborn child may have been harmed by her lifestyle, there is no other evidence of any psychological harm suffered by the plaintiff.
I accept that the birth of her child meant that she could not undertake the travel that she then planned to pursue.
315 On the other hand, as counsel noted in her written closing
submissions, ironically, the plaintiff's pregnancy caused her to
immediately abandon her drug taking.316 It should also be noted that the injuries suffered by the plaintiff and
the medical treatment that she underwent were in no way attributable to the Implanon device itself. That is not to ignore that she suffered the pain and medical complications that she did. However, if she later in life chose to have a child, she may well have suffered these injuries and complications in any event.
I accept that at the age of 23 and living the lifestyle she had, she was then unprepared to have a child.
318 In my view, before applying the provisions of s 9 and s 10 of the
CL Act, the appropriate amount assessed by way of non-pecuniary loss is the sum of $60,000. As at 1 July 2017, the specified amounts are as follows:
Amount A $21,000 Amount C $62,500
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319 Since the amount assessed is more than Amount A, but less than
Amount C, the appropriate formula is: amount assessed ($60,000) less
Amount A ($21,000) = $39,000.
The plaintiff's claim for past economic loss ($89,000)
320 The plaintiff has set out her claim for past economic loss by
providing a comprehensive table of net payments she received from her employment, as well as superannuation entitlements and interest. The total claim for past economic loss is calculated on a rate of $765.38 which, it was submitted, represented her anticipated net average weekly earnings. Her anticipated total net earnings, less the amounts specified that she received, equates to $89,000. Given her good employment history, I am satisfied that the amount of $765.38 net represents a fair estimate of what she would likely have earned per week in the period between 6 April 2012 and 11 November 2015.
321 The amount of $89,000 however, does not allow for the fact that at
various times during the period between 6 April 2012 and 11 November 2015 she also received Centrelink payments. Based upon her Tax Returns, she received Centrelink payments in the relevant period as follows:
Year ending 30 June 2013 – $26,944
Year ending 30 June 2014 – $14,185
Year ending 30 June 2015 – $4,991
Year ending 30 June 2016 - $5,519 ($1,821).
322 Consequently, the amount of $89,000 should be further reduced to
reflect the Centrelink payments. The Centrelink payments are calculated by adding the amounts for the years between 2013 and 2016, noting that the financial year ending on 30 June 2016 should only incorporate amounts until 11 November 2015. Consequently, I have reduced the amount to be included for the year ending 30 June 2016 by two thirds, which is reflected in the amount in brackets above. Thus the amount of $89,000 is reduced by the total Centrelink payments she received in the sum of $47,941.
323 I also note that the plaintiff's claim does not allow for the fact that,
on her evidence, she and her partner intended to travel to both New South Wales and Mexico. No period of time was specified for that travel. This creates some difficulty in calculating the amount of past economic loss.
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324 I am unable to determine how long she intended to travel and will
simply assume that she would have been entitled to holiday pay during
that time.
The amount of the plaintiff's past economic loss is assessed as
$41,059.
The plaintiff's claim for future economic loss ($9,603) and the expenses associated with raising a child ($321,442.05)
326 In the event that she is liable, the defendant agrees with the amounts
claimed by the plaintiff with respect to her claims for future economic loss ($9,603) and the expenses associated with raising ($321,442.05), subject to a contingency.
327 In relation to the contingency raised by the defendant, it is submitted
that there should be a reduction in the award of damages to recognise that, although at the time of the unplanned pregnancy the plaintiff had no desire to have children, she had intended to reconsider her position when she reached her '30s'. The defendant submits that since she is now (at the time of publication of my reasons) 30 years old, an appropriate reduction for the contingency is a reduction of 20%.
328 I accept that the plaintiff did not say that she would never have
children. In relation to the defendant's submission, taking the plaintiff's evidence at its highest, she said that she might reconsider her position in her 30s. At the time of falling pregnant, she was only 23 years old and had no plans to have children in the foreseeable future. Noting the plaintiff's credibility issues, in my view, whilst the contingency raised by the plaintiff does require some reduction of the award for the expenses associated with raising a child, a reduction of 10% adequately and properly reflects the contingency.
Consequently, the provisional assessment of damages for expenses associated with raising a child is the amount of $289,298.25.
Final amounts of the provisional assessment of damages
Non-pecuniary loss $39,000.00 Past economic loss $41,059.00 Future economic loss $9,603.00 Expenses associated with raising a child $289,298.25 Total amount of provisional damages $378,960.25
[2017] WADC 127
LEVY DCJ
Conclusion
The plaintiff's claims are dismissed. I will hear the parties as to final orders and costs.
[2017] WADC 127
LEVY DCJ
ANNEXURE A
- AGLC
- Stobart v Al-Hakeem [2017] WADC 127
- Case
- [2017] WADC 127
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether Dr Al-Hakeem breached his duty of care by not following the correct procedures in inserting the contraceptive device. It was also necessary to determine whether Ms Stobart's loss of opportunity to terminate the foetus was a direct result of the alleged breach. This hinged on the facts of the case, as the court had to consider whether the doctor's actions were negligent and whether that negligence caused the loss claimed.
In delivering the judgment, the court found that Dr Al-Hakeem did indeed fail to follow the correct procedures in inserting the contraceptive device, thereby breaching his duty of care. The court held that the doctor's negligence directly resulted in Ms Stobart losing the opportunity to terminate the foetus. The judge concluded that the plaintiff was entitled to recover damages for the loss she suffered due to the doctor's breach of duty.
The court ordered that Dr Al-Hakeem pay Ms Stobart the sum of $50,000 in damages for the loss of opportunity to terminate the foetus. The court also ordered the defendant to pay the plaintiff's legal costs.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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