Strempel v Wood - [2003] WADC 145

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: STREMPEL -v- WOOD & ANOR [2003] WADC 145

CORAM: JENKINS DCJ

HEARD: 2, 4-6, 9-13, 16-18 DECEMBER 2002, 30, 31 JANUARY 2003

DELIVERED : 20 JUNE 2003

FILE NO/S: CIV 399 of 2001

BETWEEN: BRIAN PHILLIP STREMPEL
Plaintiff
AND
DAVID JOHN WOOD
First Defendant
JOHN ORESTE CHLEBOUN
Second Defendant

Catchwords:

Negligence - Proof of medical negligence - Assessment of damages - Pre-existing injuries and disabilities

Legislation:

Nil

Result:

Judgment for the first defendant

Judgment for the plaintiff against the second defendant in the sum of $131,846.00

Representation:

Counsel:

Plaintiff:     Mr T Lampropoulos
First Defendant             :     Mr J Gilmour QC with him Mr J P Allan
Second Defendant         :     Mr J Gilmour QC with him Mr J P Allan

Solicitors:

Plaintiff:     Hoffmans
First Defendant             :     Clayton Utz
Second Defendant         :     Clayton Utz

Case(s) referred to in judgment(s):

Chapman v Hearse (1961) 106 CLR 112
Chappel v Hart (1998) 195 CLR 232
Graham v Baker (1961) 106 CLR 340
Griffiths v Kerkemeyer (1977) 139 CLR 161
Malec v J C Hutton Pty Ltd (1990) 169 CLR 638
Medlin v The State Government Insurance Commission (1995) 182 CLR 1
Paul & Anor v Rendell (1981) 34 ALR 569
Rogers v Whitaker (1992) 175 CLR 479
Rosenberg v Percival (2001) 205 CLR 434
The Council of the Shire of Wyong v Shirt & Ors (1980) 146 CLR 40

Case(s) also cited:

Ellis v Wallsend District Hospital (1989) 17 NSWLR 553
F v R [1983] 33 SASR 189
Heydon v NRMA Ltd [2000] NSWCA 374
Jones v Bartlett & Anor (2000) 205 CLR 166
Maloney v Commissioner for Railways (New South Wales) (1978) 52 ALJR 292
Modbury Triangle Shopping Centre Pty Ltd v Anzil & Anor (2000) 205 CLR 254

JENKINS DCJ: The plaintiff claims damages for personal injuries he alleges he received as a consequence of the negligent conduct of the first and second defendants in connection with right knee replacement surgery that the first defendant performed on 24 September 1998 and his subsequent treatment by the first and second defendants. The second defendant, became involved in the subsequent treatment of the plaintiff when he was requested by the first defendant to provide an opinion with respect to vascular problems that the plaintiff suffered following the surgery.

The pleadings

The amended statement of claim ("the statement of claim") pleads that the plaintiff suffered severe injuries in 1967, in an unrelated incident ("the landmine accident"), which resulted in amputation of his left leg and injuries to his right leg causing, inter alia, loss of movement of the knee joint. It is also pleaded that the vascular system of the right leg was injured including occlusion of the right popliteal artery. It is alleged that as a consequence of these injuries the plaintiff's right knee had two degrees of movement and he had swelling and discomfort of the right knee after use and bloodlessness of the right foot on elevation.
It is further pleaded that the plaintiff consulted the first defendant, an orthopaedic surgeon, to enquire about having his right knee fused ("arthrodesis") to alleviate the swelling and discomfort he was experiencing. It is pleaded that the first defendant instead offered knee replacement surgery ("arthroplasty") to the plaintiff. It is alleged that after x‑rays and scans of the plaintiff's right knee, a determination whether shrapnel from the land mine still present in the plaintiff's right leg would pose any risks and a review by a plastic surgeon to determine whether any soft tissue transplants would be required the first defendant told the plaintiff he was a suitable surgical candidate for arthroplasty.
It is pleaded that the surgery took place on 24 September 1998 at Hollywood Hospital ("Hollywood"). It is pleaded that the plaintiff experienced signs and symptoms in his right leg of which both the first defendant and the second defendant knew or ought to have known.
It is pleaded that in the afternoon of 25 September 1998 the plaintiff was examined by the second defendant who observed that he suspected the plaintiff had major arterial discontinuity in his calf from his 1967 injury. It is alleged that he suggested that a duplex scan, and the ankle brachial index ("ABI") be obtained, that the plaintiff's foot be kept down and that the plaintiff be prescribed Clexane, an anticoagulant.
It is pleaded that a subsequent duplex scan revealed that the distal end of the plaintiff's popliteal artery was occluded and ABI was 0.0.
It is pleaded that on the evening of 26‑27 September 1998 the first defendant diagnosed the plaintiff as suffering from compartment syndrome and that at approximately 3.30 am on 27 September the first and second defendants performed a fasciotomy on the plaintiff's right lower leg.
It is pleaded that as a result of the plaintiff's compartment syndrome and fasciotomy the plaintiff was injured and suffered loss and damage to his right leg. The particulars of his injuries are loss of muscle tissue due to the same becoming necrotic, recurrent infections of the right leg, nerve and muscle damage to the right leg resulting in foot rot, secondary lymphodema and damage to sense of balance caused by antibiotic administration.
In relation to this last particular it is pleaded that the plaintiff remained under the care of the second defendant and that in or about August 2000 the second defendant prescribed the plaintiff Aminoglycoside antibiotic medication including Gentamicin and Vancomycin and that as a consequence the plaintiff suffered permanent injury. The particulars of permanent injury are damage to sixth and seventh cranial nerves, loss of sense of balance and partial loss of hearing.
Against the first defendant it is pleaded that the plaintiff's injuries occurred as a result of his negligence. The particulars of such negligence being;
"(a)failure to investigate the circulation in the plaintiff's right leg prior to surgery and in particular failure to refer the plaintiff to a vascular or other specialist to ascertain the state of the plaintiff's right leg circulation, failure to order a duplex scan of the plaintiff's right leg and failure to have any adequate regard to the plaintiff's complaints of bloodlessness in his right leg caused by elevation;
(b)failure to advise the plaintiff that by reason of his right leg's compromised circulation he was at greater risk of developing compartment syndrome than a person of a similar age would be;
(c)failure to advise the plaintiff that he was not a suitable candidate for knee replacement surgery;
(d)failure to perform a fasciotomy on the plaintiff's right leg within 6 to 8 hours of onset of symptoms;
(e)failure to have due regard to the plaintiff's leg symptoms on 24 September 1998;
(f)failure to have due regard to the plaintiff's symptoms on 25 September 1998."
In relation to (a) it is pleaded that if the test and referrals had been made they would have indicated that the plaintiff was not a suitable surgical candidate for arthroplasty, alternatively, that arthroplasty posed greater risks because of the state of the circulation of the plaintiff's right leg.
In respect to (b) it is pleaded that had the plaintiff been advised of his increased risk he would not have had the arthroplasty.
Against the second defendant it is pleaded that the plaintiff's injuries were caused by his negligence. The particulars of negligence being;
"(a)failure to have any or any adequate regard to the plaintiff's signs and symptoms following the knee replacement surgery;
(b)failure to diagnose the plaintiff's compartment syndrome;
(c)failure to perform or recommend fasciotomy to be carried out on the plaintiff's right leg;
(d)failure to recommend or perform surgery on the plaintiff's leg to restore blood supply;
(e)in relation to the prescription of Aminoglycoside antibiotic medication, prescribing the medication without being aware of the risks associated with long term use of Aminoglycoside, failure to prescribe the plaintiff with alternative antibiotics and prescribing Aminoglycoside for too long a period."
It is pleaded that as a result of his injuries the plaintiff has required and undergone medical treatment and has suffered permanent disabilities.
Damages and interest on damages is claimed in respect to economic loss, superannuation benefits, medical expenses, gratuitous services, travelling expenses, special appliances and general damages.
The defences of the first and second defendants either do not admit or deny most of the matters pleaded in the statement of claim.
The first defendant does admit to having performed arthroplasty on the plaintiff on 24 September 1998 but does not admit to being told of bloodlessness of the plaintiff's right foot on elevation and denies each and every allegation of negligence as pleaded in the amended statement of claim.
The first defendant pleads that if the plaintiff has suffered permanent disabilities and loss and if the plaintiff will require gratuitous services, travelling expenses and special appliances then such loss would have occurred in any event and such expenses would have been incurred by the plaintiff in any event due to the combination of the plaintiff's pre‑existing and progressive severe right leg pain, progression of arthritis in the plaintiff's right knee, recurrent back pain, polyarthralgia particularly to the plaintiff's left and right shoulders, left and right wrists and hands, exzema, disposition to recurrent infection in his right leg stump and right leg, hyperlipidaemia, coronary artery disease, the fibrotic nature of tissue consequent upon the plaintiff's land mine injuries to his right leg, and progression of the plaintiff's pre‑existing peripheral arterial disease.
Similarly the second defendant's further re‑amended defence does not admit or denies the matters pleaded against him. However, during the trial of the action, on 30 January 2003 the second defendant's counsel admitted that the second defendant was liable in negligence for any loss and damage suffered by the plaintiff in respect to his use of Aminoglycoside antibiotic treatment after 24 August 2000. The assessment of damages is the remaining issue between the parties in respect to that allegation. The second defendant's defence repeats the first defendant's claim of pre‑existing problems.

Facts

The following facts are either not in dispute or have been found by me.
The plaintiff was born in Perth on 22 February 1945. He joined the Royal Australian Army in 1964 and after attending officer cadet school and being initially posted to New Guinea in 1967, he was posted to Vietnam as a second lieutenant. On 28 August 1967 the plaintiff stepped on a land mine whilst serving in Vietnam and suffered injuries to both his legs.
As a result of these injuries his left leg was initially amputated at the knee. Later it was amputated above the knee to enable a prosthesis to be more easily attached to it.
He also suffered permanent injuries to his right leg. His right knee was left with only a few degrees of flexion and he lost half his right calf muscle. Initially he had discharging sinuses behind his right knee where he also had significant scarring. He also had a discharging sinus in his ankle. These sinuses stopped discharging many years ago. Multiple pieces of shrapnel and other material remain within his right leg.
The plaintiff was repatriated to Perth and in 1968 he resumed normal duties with the Army. Over the next few years the plaintiff had two children to his first wife and graduated with a Bachelor of Commerce from the University of Western Australia. In the early 1970's he was posted to Canberra. In 1973 the plaintiff resigned his commission as a captain in the Army.
In 1974 the plaintiff joined the Swan Brewery as market research manager. By this time the plaintiff was able to walk using a prosthesis on his left leg and no other aids. Between 1973 and 1998 the plaintiff had a number of different occupations including periods running his own liquor store and then tavern. By 1998 he was working for the Western Australian Government in the Department of Commerce and Trade as a Level 7 manager. This employment required the plaintiff to travel throughout the State and Australia which he managed to do.
Throughout this period the plaintiff suffered varying amounts of pain in his right knee. Principally after standing for two to three hours his knee would be painful upon walking and it would also swell. Now and again he asked doctors whether there was any advancement in medical technology that would enable something to be done about his problems in his right knee. Up until 1997 the answer was "no" but at that time he asked a doctor and he suggested that the plaintiff see the first defendant about having an arthrodesis performed. He went to see his general practitioner, Dr Colin Broun, and he wrote a referral to the first defendant asking the first defendant to speak to the plaintiff about options for his knee.
The first defendant is the professor of orthopaedic surgery at the University of Western Australia and is a consultant at Hollywood and Sir Charles Gairdner Hospital. He is a very well qualified and experienced orthopaedic surgeon. He lists joint replacement as one of his professional interests. He performed approximately 2000 arthoplasties between 1985 and the end of 2002.
The plaintiff consulted the first defendant on 2 September 1998. The plaintiff was asked what he recalled being said at the first consultation. He gave the following reply:
"I told Prof Wood of my background and I told him the reason I was to see him and explained that the knee would become swollen on prolonged standing and cause pain if it flexed after that condition began and that … I was exploring the issue of having the knee fused to prevent any flexion at all and thereby hopefully preventing any pain. We talked for a while and then he said, "Look, there is an alternative to a fusion and the alternative is a total knee replacement," which surprised me because to that date it wasn't something that I'd had recommended. I told him of the background of talking to people over the years about knee replacements and he said the technology had improved and the longevity of the artificial joint was now something longer. I asked him about the infection and he said modern drugs were built to control any infections well enough. He said that if I went ahead with the original approach, which was to have the knee fused, that I would lose an inch in height possibly, but that could be rectified, but once it was done I would never be able to have a knee replacement, so one would exclude the other. I asked him what he would recommend and he said he would recommend the knee replacement."
In respect to current symptoms in the leg he said:
"I explained to him how the pain came about which was, as I have said before, as a result of long standing and then the knee flexing. If the knee didn't flex then even despite long standing and swelling the leg wasn't necessarily painful and I told him how I coped with that, which was to, in the first instance, try not to stand on it for that length of time but if I had then I would lie down and elevate the leg. I mentioned to him that on that occasion the leg would become painful ‑ or the foot would become painful after about 20 minutes."
There was a further exchange between the plaintiff and his counsel as follows:
"After 20 minutes of what?---Of elevation.
Did you tell him when that started to come on?‑‑‑That had always been the case.
Any other discussion about symptoms and the condition of your leg up until that time, 1998?‑‑‑No. Well, I'm not sure. I had begun experiencing some pain 2 years before seeing him in my stump and also in my lower leg. I have some recollection of telling him about that, but I can't be sure of that.”
I accept the plaintiff's evidence in this regard.
The plaintiff said the first defendant then gave him a booklet entitled "Total Knee Replacement Information Book" ("the booklet") which is a standard Hollywood publication for arthroplasty candidates.
The booklet explains that more than 90 per cent of arthroplasties are trouble free and successful. It states that in five per cent of patients the results are not satisfactory and that some complications can be put right by further surgery and some may not. Immediate complications include death (in about one per cent of patients), major post operative illness such as pneumonia, reaction to drugs or some other generalized problem. Although the booklet supposedly deals with knee replacement surgery it refers to particular problems in hip replacements. However even if these are read as referring to knee replacements, there is no specific reference to vascular complications at this point of the book.
At p 12 there is further particularisation of risks from arthroplasty. The booklet refers particularly to thrombosis. It says;
"Thrombosis in the leg occurs in between 25-50% of patients but is usually trivial and can be ignored. Serious thrombosis, with major problems in the leg or in the lungs occurs in about 5% of cases.
Death from thrombosis, or from fat getting into the blood stream, or from a heart attack, or for some other reason occurs in about 1‑2% of patients having a knee replacement."
He was asked whether there were any discussions about further investigations. The plaintiff’s answer was as follows:
"He said … prior to a decision to have the operation he would need to undertake some further tests. He said one of the tests was to check out the condition of the bone at the joint and the other test was he was concerned that the back of the knee ‑ as a result of the landmine explosion the skin was adhered to the back of the knee and he was concerned that that skin wouldn't rupture if the knee flexed. So he gave me referrals for MRI scan, …, and also to visit Dr Fiona Wood who he explained was his sister and did I mind? She was to give an opinion on the skin.
And your response?---I said that would be fine. I would do those tests."
I accept the plaintiff's evidence in this regard.
In respect to the first consultation the first defendant said he received a referral letter from the plaintiff’s general practitioner. That letter said that the plaintiff wanted to discuss "options for his knee – it becomes painful and swollen with standing".
When asked what the plaintiff complained off upon presentation he said:
" … He said that his knee was stiff and became painful on load bearing so that he had a limited walking distance and that he was having increasing difficulty over the last few years in getting around. He said he was having increasing difficulty with some of the activities of his daily life such as driving and getting in and out of the car and he said he would like something done about it, if possible."
He was asked whether there was any discussion about his walking ability. The first defendant said:
"I asked him how far he could walk and he said, 'It was a bit of a struggle getting into your rooms here from the carpark. I had to stop a couple of times.' Later in the consultation I examined him and I observed him and he had quite a bit of difficulty just getting from the chair to the bed which is a matter of about four or five metres."
The first defendant said he discussed the plaintiff's pain with him in the following terms:
"He said it was severe and I asked him what kind of things made it better and what made it worse and he said that when he stands up for a time it get painful, when he walks it's very painful, and he tried to alleviate it by resting it, resting it up, but after about half an hour to 45 minutes that became painful and he had some difficulty in finding any comfortable position for his knee."

Upon examination on the plaintiff's right knee the first defendant said he found that it was quite heavily scarred from the injury and from the surgical procedures and there were areas of skin graft, particularly on the inside of his leg, and he had some loss of muscle on the inside of his leg. He had loss of the top part of the medial gastrocnemius muscle. He had some loss of semimembranosus and loss of another hamstring, the semitendinosus. He had a slight to moderate effusion in his knee and overall his leg was quite well aligned. It was held in a position of about five degrees bend, from his memory, and only moved by about four or five degrees. He had a bony defect on the lower end of his femur, the medial femoral condyle. At that point the skin and scar tissue underneath the skin was adherent to the back of his medial femoral condyle.
The first defendant said that he also did a neurvascular examination and he explained it as follows:
"The standard neurovascular evaluation includes looking at muscles, power of muscles, reflexes and sensation, and vascular component is ‑ the vascular component involves feeling the pulses."
The relevant pulses are the pedal pulses and the popliteal pulse. There are two pedal pulses. One is called the distalis pedis ("dp") which is in front of the ankle bone. The other is called the posterior tibial ("pt") which is immediately behind the ankle bone. The popliteal pulse is in the popliteal artery which runs behind the knee. All three pulses can be difficult to palpate, even by experienced practitioners.
The first defendant said he was particularly interested in the plaintiff's pedal pulses, and they were present. He also felt his popliteal pulse which was present. I accept that the first defendant carried out these physical examinations and that these were his findings.
The first defendant said he discussed four options with the plaintiff. He said that the most straightforward thing for him would be to do nothing surgically and to leave him as he was. The second option was an arthrodesis. He said this was a reasonable option to consider in terms of eliminating the pain. He said that the plaintiff wasn't enthusiastic about an arthrodesis saying that stiffness was part of his problem although pain was the main complaint. The third option they discussed was amputation. He said that the plaintiff said he wasn’t going to have it amputated now.
The fourth option the first defendant said they discussed was knee arthroplasty. He said he told the plaintiff that it might be necessary, if the knee replacement went wrong, to amputate the knee as a salvage operation and that the chances of that were relatively small but not zero.
He said he then gave the plaintiff the booklet about knee replacement surgery but he said he said to the plaintiff that the outcome was unpredictable in his particular situation because it was unique. He said that he dictated a letter to the general practitioner in front of the plaintiff because he wanted to be sure that he understood the risks.
That letter states, inter alia:
"I have provided him with basic information about knee replacement surgery but advised him that there is a wealth of ignorance about his particular situation and success could not be guaranteed. We will meet again when we both have had a chance to consider this complex situation."
The letter also refers to the first defendant having palpated the plaintiff’s pedal pulses. There is no other reference in the letter to vascular function of the lower leg.
In cross‑examination the plaintiff denied having told the first defendant that it was difficult for him to walk across the car park to the waiting room because he couldn't imagine under what circumstances it would be painful.
He said that the knee was only painful after longstanding. He acknowledged that he said he could walk 50 to 100 metres and then the stump would become painful and he would rest and continue.
As to options discussed at the first consultation the plaintiff denied that the first defendant had said that his preferred option was to continue with conservative treatment because of the potential risks involved with surgery. He agreed they discussed arthrodesis. The plaintiff agreed that when arthroplasty was discussed he was enthusiastic about the possibility of mobilising his knee.
The plaintiff said he had no recollection of discussing amputation as a primary solution to his then problems but that if the first defendant had suggested it he would have been dismissive of the suggestion because it was an option he had resisted since the war injury occurred.
With respect to the booklet he said it was implied rather than expressed that he should read it and discuss any issues he had with the first defendant.
He said after he saw the first defendant he went home and read the booklet and saw a lot of information that was different to the purposes and the content of the conversation he had with the first defendant. He thought the book was written for aged people who suffered arthritic pain and so a lot of its information was not entirely applicable to him. I find that it was unreasonable for the plaintiff to adopt this position. On my reading of the booklet it does not contain information that would lead to this conclusion.
In respect to the risks of arthroplasty he said that he was prepared to accept major risks of higher than 1‑2 per cent and other problems at 10 per cent
As to the first defendant's letter to the general practitioner, the plaintiff acknowledged that the first defendant examined him and presumably took his pulses. He agrees that the first defendant told him that "success could not be guaranteed". However he couldn’t recall the term "wealth of ignorance".
There are crucial differences between the recollections of the plaintiff and the first defendant as to what was said during the consultation. Neither presented as being intrinsically more credible than the other. Both men are of good character and are intelligent. Both gave plausible accounts of the consultation. Neither party made contemporaneous notes of the consultation. In the case of the first defendant, a medical practitioner, in my experience, this is very unusual. No attempt was made to justify the lack of note taking as a reflection of an extraordinary memory and I am not prepared to assume it. The first defendant said that he dictated the letter to the general practitioner in the presence of the plaintiff and the plaintiff neither agreed nor disagreed with this. I accept that the letter was dictated at that time and as it is contemporaneous, I accept the truth of its contents.
However it is a fairly brief summary of the consultation and there are many matters upon which it does not touch. Even when it does mention matters such as that the plaintiff was advised that "success could not be guaranteed" it is unclear whether this is a reference to the fact that the first defendant could not guarantee that the result, for example the range of movement obtained and longevity of the replacement knee, may not be as good as in a person without the plaintiff's disabilities or whether it is a reference to the first defendant not being able to guarantee that there would not be complications that would be unconnected with the primary success of the arthroplasty, which was what occurred in this case.
The plaintiff has more reason than the first defendant to remember the consultation. The suggestion that arthroplasty may be able to relieve the pain in his knee and provide increased movement was, no doubt, a very exciting and positive development. The fact that within a month he had the surgery and then suffered complications would be matters that were likely to reinforce the events of that month in his memory. On the other hand for the first defendant this was one of thousands of consultations that he has had with arthroplasty candidates. The first defendant said that his mind had focused upon the consultations with the plaintiff when the plaintiff had complications and he thought he "sort of had a pretty good memory of the first consultation". He said that the first time he made a written note of the conversation was in 1999 when he received notification that legal action was being taken against him. His note which is an exhibit does not descend into the kind of detail he gave in evidence. In assessing the reliability of the first defendant's evidence I have also compared the detail he gave of the first consultation with his memory of the events of 25 September and in particular his vague recollection of conversations with the second defendant on that date. I cannot explain the variance between the quality of his memory of these occasions except by inferring that to some extent he has reconstructed the events and conversations of the first consultation. This finding reflects adversely on the extent to which I am prepared to accept his version of the first consultation except where it is supported by other evidence.
At the conclusion of that consultation the first defendant did not offer the plaintiff an arthroplasty. However, to the plaintiff's knowledge, it was an option that he was then considering.
The first defendant referred the plaintiff to Miss Fiona Wood, a plastic surgeon, for an opinion as to "the relative value of a lateral gastrocnemius transposition flap" to use as a skin graft over the surgical incision and the possibility of cultured skin to improve his healing after an arthrosplasty. This was, as it states, a specific request for an opinion about the value of the skin the first defendant thought he may need to use to close the surgical incision and not a request related to the general sufficiency of the vascularity of the plaintiff's right knee for surgery.
On 17 September 1998 Miss Wood gave an opinion that the plaintiff had a good lateral gastrocnemius that she thought would provide good support when transposed medially to the anterior position. She said that she did not think that an arteriogram was necessary as the flap should not affect the vascularity of the area.
The first defendant also arranged for tests to look for any infection in the area of the right knee. He undertook some investigations to ascertain whether there would be any metal mismatch and electrolysis between the shrapnel in the plaintiff's leg and the metal used in the replacement knee.
A second consultation between the plaintiff and the first defendant took place on 11 September. The plaintiff said that the first defendant said he had come to the conclusion that the metals were not incompatible and that the scans and x‑rays had revealed that the operation was feasible. He could not recall anything further discussed at that interview. The plaintiff had not seen Miss Wood at this time.
The plaintiff denied that the first defendant told him at any stage prior to the surgery that he was at increased risk of complications because of the existing injuries to your right leg. However I accept that the first defendant did mention that he was at greater risk by virtue of him stating in his reporting letter to the general practitioner that there was a "wealth of ignorance about his particular situation".
The plaintiff was asked whether if he had been told that there was a risk of complications and that if they materialised he might lose his right leg, would he have proceeded with the total knee replacement surgery? The plaintiff’s answer was:
"The choice ‑ in retrospect I certainly would have said no, but I had lived with the pain at that level for 30 years, so it wasn't as if it was an essential operation. I'm not sure but I would say that if he had said there was a reasonable risk of losing the leg or running some further damage to the function of the leg and that was above, say, 5 per cent, I probably wouldn't have gone ahead."
The first defendant acknowledged there was a second consultation but did not give detailed evidence about it. He said he thought they discussed infection and wound breakdown as a complication. Also the potential need for a flap and skin graft and potential complications with that. I accept that these, being relevant issues to the tests the first defendant had ordered, would have been discussed.
In his evidence the first defendant acknowledged that the arthroplasty involved greater risks to the plaintiff than the usual arthroplasty candidate. The first defendant said the potential for an adverse outcome such as knee stiffness or infection or a complication over and above that of the regular arthroplasty existed because of the plaintiff's previous history of infection, soft tissue damage and stiffness in his knee.
He was also concerned that the operation would be more technically challenging in relation to mobilising the knee. The first defendant said that mobilising the soft tissues from the medial femoral condyle where the plaintiff had some loss of bone presented a problem, and in gaining movement in a knee that had been stiff for some time there was need for soft tissue release. In addition to that there was a risk that the structures on the inside of the knee joint might suffer as a result of the surgery, might not be viable and might need to be replaced either by a flap or a skin graft. He said there was always a theoretical risk of damage to the popliteal artery during knee replacement surgery. I accept that he discussed these risks in general terms with the plaintiff as evidenced by the letter he wrote to the plaintiff's general practitioner.
As to whether he was concerned that the plaintiff’s blood circulation system in the lower leg was compromised as a result of his earlier injuries he considered that the vascular examination was normal and therefore there was no need to get a vascular opinion. He considered but did not explore the possibility that the plaintiff may have had arterial disease because he looked in the plaintiff's Veterans Affairs notes to see if there was any indication that he had had popliteal artery damage and found none. He also could feel his pulses. Further there was no history given to him of arterial disease. The first defendant did not offer the plaintiff an arthroplasty at the time of the second consultation. He was still awaiting the opinion of Miss Fiona Wood.
There is dispute between the plaintiff and the first defendant as to the sequence of events after the second consultation. It is not necessary for me to resolve all these conflicts. I find that during a telephone conversation between the plaintiff and the first defendant on a date prior to 23 September 1998 the first defendant offered an arthroplasty to the plaintiff and the plaintiff said that he wanted to proceed with the surgery. The plaintiff was then booked in for surgery on 24 September in a gap in the first defendant's operating list at Hollywood.
The plaintiff was admitted to hospital on 23 September and on the morning of 24 September 1998 the first defendant performed an arthroplasty on the plaintiff's right knee .
The surgery itself was relatively uneventful. The scar tissue behind the knee from the land mine accident had to be cut away to mobilise the knee but once this was done the surgery proceeded normally. The services of Miss Wood were not required to perform a skin graft in order to close the wound.
The surgery was performed under an epidural anaesthetic which remained in situ upon the plaintiff's return to the ward. This was to enable the plaintiff to receive anaesthetic pain relieving medication following surgery.
After surgery the plaintiff's pedal pulses were palpable and recorded as being strong. The plaintiff's right knee was not bandaged and it was on a continuous passive motion ("CPM") machine. This moved the knee in an arc of 30 to 60 degrees.
As is the usual procedure, upon the plaintiff's return to the ward a vascular observation chart of the plaintiff's right leg was kept by the nursing staff. On the morning of 24 September the first entry records the pedal pulses as faint. Then through to 2.00 pm the plaintiff's pedal pulses were recorded as strong. At 3.00 pm they are recorded as faint. The vascular observation chart also records observations of skin colour, skin temperature, sensation, movement and a pain score. As at all relevant times the plaintiff was receiving epidural pain relief, these observations may not be accurate as they may be effected by the epidural drugs. Consequently few, if any, conclusions can safely be drawn from the observations of colour, temperature, movement and sensation on the vascular chart whilst the epidural was in situ. With respect to pain, conclusions cannot be drawn with respect to observations of absence of pain. However, with respect to observations of pain, and in particular of substantial pain, those observations tend to a conclusion that despite the presence of epidural pain relief the plaintiff was experiencing pain in his knee or leg. The significance of this pain may depend upon where the pain was and whether the epidural had been recently topped up with pain reliever or not.
The observations of the pedal pulses being faint, even when measured with a doppler continued from 3.00 pm on 24 September through to 9.00 pm that evening. A "doppler" is a hand held instrument which measures the velocity of blood‑flow using a beam of ultrasound. Surprisingly, and this comment may be made with respect to the lack of observations at other times, despite this significant observation, no observations are recorded with respect to the pedal pulses between 9.00 pm on 24 September and 2.10 am on the morning of 25 September. At that time the pedal pulses were again recorded as being faint with doppler. There is then no further recording until 4.50 am when, across the columns where proper observations should be, the words "very hard" are written. In the remarks column, the words "doppler not available" appear. In light of the faint pulses that were recorded for over 12 hours before this time as well as the absent recordings from 10.00 am that morning, I conclude that the words "very hard" mean that the observing nurse found the pedal pulses very hard to find by palpation. This in my opinion was because they were either at that point very faint or absent. The next recording on the vascular chart is at 6.10 am. At this time there is no entry in either column for the pedal pulses.
The first time the first defendant saw the plaintiff after surgery was early in the morning of 25 September. The first defendant asked him how the leg was and the plaintiff told him that he was very comfortable and the first defendant adjusted the angle of the CPM machine so that it was further flexing the knee. After lunch and in the evening of that day the plaintiff had constant pain below the knee. The nurses told him that it was pain from the operation and they increased the epidural medication.
The first defendant felt the plaintiff's pulses and they were present. The first defendant thought that the plaintiff had venous return and his foot was warm.
The first defendant's evidence is that if the pedal pulses were able to be palpated then this would have amounted to an ABI of about one, which is normal. It was his view that whether or not pulses were hard to palpate or faint was irrelevant as long as they were present and there were other positive signs such as venous return and warmth.
The first defendant says he was not told by the plaintiff, the nursing staff or the junior doctors of any problems and neither did he read the vascular chart. There was no criticism of him for not doing so.
Despite the first defendant's evidence about the significance or lack thereof of a faint pedal pulse, after having heard the evidence of other experts I am surprised that at the time of the ward round on the morning of 25 September no‑one mentioned to the first defendant the change in the plaintiff's pedal pulses. However, there is simply no evidence that would enable me to conclude that he was told or that in his examination of the plaintiff he detected any cause for concern at that time.

The next entry in the vascular chart is at 10.00 am when it is noted that the toes were cool and there was 3 out of 10 pain on movement and the pedal pulses were absent. The epidural nursing notes indicate that that level of pain continued until 12.45 pm when the pain was ten out of ten on movement. The first defendant's registrar, Dr Boris Brankov, and the resident medical officer were informed. This was in accordance with usual practice.
There are entries for 10.30, 10.50 and 10.55 am. However, at these times there are no observations regarding colour, temperature, movement, sensation and pain. There are two entries recording that the pedal pulses were again absent. Registrar Brankov felt the popliteal artery and heard it on doppler.
The popliteal artery runs down the back of the leg from approximately two thirds the way down the femur. It continues behind the knee joint and below the knee it bifurcates into the anterior tibial artery and the posterior tibial artery. The posterior tibial artery quickly gives off another branch called the peroneal artery. The palpation of a pulse in the popliteal artery is not inconsistent with a blockage in the popliteal artery if Dr Brankov felt the popliteal pulse above the blockage. I find that this is what in fact occurred.
There is no evidence that Dr Brankov advised the first defendant around this time of any problem in the plaintiff's right leg. Again, having regard to these findings this is inexplicable. Dr Brankov has no recollection of examining the patient in the morning of 25 September or of speaking to the first defendant about the plaintiff around this time. I find Dr Brankov's complete lack of memory of the events of the morning to be incredible. Dr Brankov should have done more than he did after being advised of the nurses' observations and examining the plaintiff, but I accept he did nothing at that time.
The first defendant did not give any evidence that he was spoken to in the morning about any problem and his evidence is that it was not until about 1.00 pm that a problem in the plaintiff's right leg was drawn to his attention.
I accept that the first defendant was not advised of the absence of the pedal pulses on the morning of 25 September. There is simply no evidence that he was told.
At approximately 1.00 pm the nursing staff rang the first defendant whilst he was in the operating theatre at Hollywood and advised him that the plaintiff was in excruciating pain. The first defendant sent Dr Brankov to see the plaintiff and Dr Brankov examined him. Dr Brankov reported back to the first defendant that he was concerned about the blood supply to the plaintiff's leg and he thought that it might be ischaemic, that is affected by insufficient blood supply. The first defendant told Dr Brankov to get a specialist vascular opinion immediately, as a matter of an emergency, preferably from the second defendant who he knew worked full‑time at the hospital.
The second defendant is a surgeon practising in general and vascular surgery. He is a consultant at Hollywood. His curriculum vitae shows that he is a very well qualified and experienced surgeon. His specific areas of interest include collateral circulation and stimulation of the collateral circulation.
Within an appropriately short period of time the plaintiff was examined by the second defendant. There is a written referral to and reply from the second defendant on the hospital file. The request to the second defendant was to "review his vascular supply to the lower leg, if it has been compromised?" Dr Brankov also spoke to the second defendant prior to the second defendant seeing the plaintiff.
The written reply of the second defendant dated 25 September states as follows:
"I suspect that he has major arterial discontinuity in the calf from his old injury.
Suggest:
1.Duplex scan and ABI.
2.Keep foot down.
3.Clexane 40mgm bd.
Micro vascular thrombosis after protracted elevation is a real possibility and must be prevented at all costs."
Dr Brankov reported to the first defendant that he had put the leg down flat and that he was organising the duplex scan. A duplex scan is a diagnostic ultrasound examination. The first defendant told Dr Brankov not to implement the Clexane treatment until the first defendant had reviewed the plaintiff. This is because the first defendant was concerned about the effect of Clexane, an anticoagulant, on the epidural site. Whilst an epidural is in situ Clexane may produce bleeding at the epidural site.
The plaintiff had the duplex scan, again in reasonable time. The duplex scan report advised as follows:
"The distal right SFA and proximal right popliteal artery are of normal calibre and demonstrate normal biphasic wave form. Minor atheromatous changes are present in the mid right popliteal artery causing 40 per cent stenosis. There is total occlusion of the distal right popliteal artery. Irregular echogenic material surrounding the artery is most in keeping with scarring. There is no visualisation of flow within the tibioperoneal trunk or proximal anterior or posterior tibial arteries or the right peroneal artery. Geniculate collateral vessels are present.
There is reconstitution of flow within the right posterior tibial artery at the ankle joint. However there is monofasic wave form due to perfusion by collateral. This results in an ABI of 0.0."
These results require expert interpretation. I accept Professor Tracy's explanation of them. Professor Tracy is a vascular surgeon called by the plaintiff. As he explained, the report says that the superficial femoral artery, the main artery to the leg, and the first part of the popliteal artery were of normal calibre and size, and had a normal wave form, suggesting they had normal soft walls. There was minor early arterial disease present in the middle section of the popliteal artery, causing a 40 per cent narrowing of its calibre. At the end of the popliteal artery, it was completely blocked. Then the report described a doppler appearance in keeping with scarring surrounding the popliteal artery. There was no blood flow within all three of the main arteries to the leg below the knee. Collateral vessels, known as the geniculate vessels, which are the small arteries around the knee, were present. There was flow reconstitution in the right posterior tibial artery at the ankle joint. The report commented on the different wave form created by perfusion via the collaterals. That means that it was consistent with the early part of the posterior tibial artery being blocked and the blood flow coming in via collateral arteries which join up to small branches of the posterior tibial artery. This resulted in an ABI of zero which means that although the arteries were recognisable and there was a wave pattern, they could not measure pressure in the distal arteries.
An ABI of zero is a significant finding indicating that there is ischaemia in the lower leg. It indicated that the reconstitution of blood flow at the ankle joint was due to perfusion by collateral blood vessels and there was no arterial flow. If blood flow was not restored to the ischaemic tissue the tissue would die. At this point there was a 50 per cent chance that the plaintiff would lose his lower right leg.
The first defendant left theatre at about 3.30 pm and tried to find the plaintiff but at that time he was undergoing the duplex scan. Approximately an hour later he visited the plaintiff on the ward. The hospital progress notes record at 4.45 pm that the first defendant instructed to cease CPM and only to commence Clexane after the epidural and other drains had been removed. The notes also record a requirement for "regular neurovascular obs 4 hourly" on the right leg. The first defendant gave instructions to elevate the head of the bed above the heart at night and to use a space blanket. This was to keep the leg warm. The note concludes with "review in am". I accept that the first defendant saw the plaintiff once only at approximately 4.45 pm.
After reviewing the written advice of the second defendant he discussed the plaintiff with the second defendant and the second defendant advised him that he was concerned about the plaintiff's leg in that the duplex scan had shown no run off but that a bypass operation in his view was contra indicated. It seems that after leaving the instructions which I have just referred to the first defendant considered that he had done all that was required at that time. He gave evidence that when he left the plaintiff he thought that the blood flow appeared to be improving because the colour of the leg had improved and it was warm. As the first defendant only saw the plaintiff once, this assessment must have been based on his observations and the earlier observations of the second defendant and Dr Brankov which were conveyed to him. He also considered that pain was under control but acknowledged that that was partly due to the plaintiff's epidural. I also note that the improved colour and warmth could have been due to the space blanket and lowering the leg. There were still no pedal pulses.
When the second defendant first examined the plaintiff's leg in the afternoon it was white and cold. There was a lack of movement, sensation and no pedal pulses. His view was that because the plaintiff had a popliteal pulse and no pedal pulses there had to be discontinuity of blood flow between those two levels. To find out the nature and extent of that he suggested a duplex scan. The radiologist advised the second defendant by telephone of the results of the duplex scan as he said because of "the gravity of the findings".
His provisional treatment was to put the leg down in order to use gravity to encourage blood flow and to suggest anticoagulation treatment, that is Clexane.
The second defendant regarded his suggested treatment as a standard conservative course. He agreed that he discussed it with the first defendant around 4.30 pm. He acknowledged that there were complications with using Clexane as it may result in bleeding into the site of surgery and in the epidural space if the plaintiff still had an epidural catheter inserted. He considered that it was not up to him to decide whether, for example, to remove the epidural catheter as the plaintiff was not his patient, he was only providing a vascular opinion.
He explained his reference to microvascular thrombosis in his written note to thrombosis of the smaller arteries coming from the tibial arteries. He said that once thrombosis occurred in these arteries and eventually also on the venous side there was an irretrievable situation. He said that this process occurred within hours. None of the vascular surgeons who gave evidence understood why the second defendant described the situation in this way. However in my view it is consistent with the second defendant believing that the popliteal artery was chronically occluded and therefore placing importance on the collateral system.
As to whether it was appropriate to surgically intervene the second defendant thought that the only way to save what was not irretrievably damaged in the leg was via a conservative approach. This was because the benefit he saw in surgical intervention was zero and the risk was very high. He thought that the benefit was zero because at the time what was damaged was already damaged irreversibly because of the 30 hours or thereabouts time lapse since the arthroplasty. Whereas nerve and muscle which had been deprived of blood would have only survived for six hours once the blood flow was stopped. The risk he regarded as high because it would have required a surgical incision behind the knee straight through the area where the collaterals existed which in his view were sustaining the leg. He believed the result of that would have been that the plaintiff would have lost his leg because it would have divided his collaterals which were the only vessels that sustained the leg in the presence of the tibial artery occlusions.
As for bypass surgery, that is surgery to bypass the occluded area, his view was that as the duplex scan indicated there was reconstitution of flow within the posterior tibial artery at the ankle joint the bypass would have had to have been "plugged in" at the ankle. His view was that this would have had the result of saving his foot but losing the calf as the surgery would have required a cutting of the collaterals which supplied blood to the calf.
He said he gave consideration to a Fogarty catheter, which is a tube with a balloon on the end which is able to be passed down an artery and inflated and used to retrieve thrombotic material. The second defendant said that a Fogarty catheter is fairly rigid and will only go down an artery and will not traverse vessels. Therefore in this situation he regarded that it would be necessary to insert it in the popliteal fossa behind the knee in order to approach the smaller vessels. However, this would not have cleared the thrombotic material in the tiny branches and microvascular system. He said that is why it fails after a few hours. He also referred to the complication of arterial damage from the catheter itself.
With respect to the use of a catheter to aspirate the clot in the popliteal artery the second defendant said that "we" have not had particularly good results with the use of the method. He referred to the larger diameter of the catheter and the fact that it had similar limitations as the Fogarty catheter.
The second defendant also considered the use of clot dissolving treatment as opposed to anti‑coagulant which prevents further clotting. However he dismissed this because of the risk of "torrential haemorrhage" at the site of the operation.
The second defendant saw the plaintiff for the initial consultation, then after he received the results of the duplex scan at approximately 4.30 pm and again at around 6.00 pm. He said the first defendant was present during the 4.30 pm consultation. I accept this evidence and note that the second defendant's answers to interrogatories in respect to times are wrong.
During the 4.30 pm consultation he thought that there had been a slight improvement in the perfusion of the leg in that the colour was somewhat better and the pain was somewhat less.
There was one observer who recorded vascular observations at noon, 1.00 and 2.00 pm. At noon and 1.00 pm the colour is described as pale, toes cool, movement present, sensation absent and pedal pulses absent. At 2.00 pm the colour is pale, the temperature warm, movement present, sensation absent and the columns for the pedal pulses blank and a remark that there was popliteal on doppler.
There are no observations between 2.00 pm and 4.00 pm. This is probably due to the plaintiff being taken from the ward for the duplex scan during this time. At 4.00 pm a different observer records that the colour is pink, temperature warm, movement present, sensation absent and the columns for pedal pulses and remarks is blank. In what appears to be the same handwriting the observer has recorded that at 5.30 pm the colour was pink, toes were cool, movement slight, sensation absent, pain nil and the pedal pulses were faint with doppler. Underneath the words "toes cool" was written the word "warm". I find that this is a comment in relation to the leg generally. The second defendant believed these observations were consistent with an improvement.
Inexplicably, given the plaintiff had an acutely ischaemic leg, there are then no observations recorded on the vascular chart between 5.30 pm and 11.00 pm. I note that the first defendant said that he ordered four observations per hour not one every four hours which is what is recorded in notes. Even accepting that mistake in recording, it is remarkable that there were no vascular observations for five and a half hours of a man who had an ischaemic leg.
During the course of the evening the plaintiff's condition deteriorated. The pain increased substantially. It is difficult to make accurate findings with respect to when the pain increased as there was little evidence from the plaintiff as to exact times when his condition deteriorated and the hospital notes are to some extent inconsistent and incomplete. At 11.00 pm the vascular chart has no entry in the pain column but notes that the pedal pulses are absent with doppler. At midnight the vascular chart notes the pain as nil, across the pulses column there is a comment "leg is swollen" and in the remarks column it states "popliteal on doppler". At 1.00 am on 26 September a different observer has recorded that the colour is pale, temperature of the foot is cool, movement slight, sensation ? (illegible) to mid‑calf, nil below and pain severe. There is no entry for the pedal pulses. Regular observations are made between then and 2.00 am. However, no pain observation is made except at 1.15 am where it says "pain calf 9 on 10".
The epidural infusion notes for the same period has observations hourly from 5.30 pm on 25 September to 1.00 am on 26 September. On these the pain is noted as zero up until midnight and severe at 1.00 am.
The integrated progress notes have an entry for 1.00 am indicating that the plaintiff had complained of severe pain in his right calf, that the leg was very swollen and there was no sensation and movement. The first defendant was notified and came in to see the plaintiff. The plaintiff does not recall seeing the first defendant prior to being taken to surgery for an emergency fasciotomy. However, it is clear that the first defendant after having been notified by the nursing staff came to the hospital and examined the plaintiff. The first defendant noted that the antero lateral aspect of his lower leg was swollen, woody hard and quite tender. The plaintiff's foot was white and passive dorsiflexion of his toes increased the pain. The first defendant diagnosed compartment syndrome, arranged for an emergency fasciotomy and also arranged for the plaintiff to sign consent papers for a fasciotomy and a bypass procedure. He explained that this was because he thought the plaintiff's leg was at risk. I note that from the time the ABI was confirmed as being zero there was known to be a significant risk of necrosis and amputation. The first defendant contacted the second defendant and the plaintiff's wife. There were no delays in the first defendant's response after having been advised of the deterioration in the plaintiff's condition at around 1.00 am.
As soon as the theatre was ready the first defendant commenced the fasciotomy. A fasciotomy, as the first defendant explained, is an operation to release the build up of pressure within a fixed compartment by dividing the fascia of the compartment. A compartment is a sheet of connective tissue which encloses groups of muscles or other organs. They separate muscles into groups. As the plaintiff's expert witness Professor Tracy explained compartments are dense and they do not give way. So if there is swelling within a compartment, for any cause, pressure within the compartment rises and it is unable to be released because of the layer of membrane surrounding it. Thus the swelling prevents the blood from circulating normally through the compartment and the muscles can be thereby deprived of essential blood and they can die. This is called a compartment syndrome. In the lower leg there is a compartment below the knee at the front called the anterior tibial compartment. It was in this compartment that a compartment syndrome developed.
As Professor Tracy explained there are a number of different causes of the build‑up of pressure that causes a compartment syndrome. Among those causes are exudation of tissue fluid, haemorrhage or the restoration of blood flow after a protracted period of ischaemia beyond 6‑12 hours.

A person’s sense of hearing and balance are fundamental senses. Lack or impairment thereof, particularly in a case of existing disability in the lower limbs, is I accept a substantial disability.
In addition I heard evidence from Dr Burvill concerning the plaintiff’s psychiatric and psychological state. Dr Burvill saw the plaintiff in June 2001 and diagnosed a Chronic Adjustment Disorder with depressive and anxiety symptoms. At that time he had had about 20 counselling sessions in relation to his change of circumstances since 1998. Despite this Dr Burvill found him low in spirits. He was very guarded about the plaintiff's prognosis and believed that he needed to take an antidepressant. He saw the plaintiff again in July 2002 and found that he still had the same diagnosis. Whilst he believed that the plaintiff had a great tendency to bottle up his emotions with much denial he still displayed them in terms of his frustration, irritability, angry outbursts, general depression, lack of enthusiasm, insomnia and loss of libido. After having seen and heard the plaintiff and his wife I accept this opinion.
I do not accept that the compensable injuries are the cause of the plaintiff's psychiatric and psychological problems. However I do accept that those injuries have exacerbated his problems in this regard. Unfortunately his experience with antibiotics has increased his reluctance to take antidepressant medication. Consequently the plaintiff has not received the benefit of antidepressant medication.
Since 1998 the relationship between the plaintiff and his wife and daughter has deteriorated. Again, whilst the antibiotic related injuries have not been the sole cause of these problems I accept that they have contributed to them.
In all of these circumstances an award of $40,000 is appropriate.

Summary

Past Loss of earnings $ 7,751.00

Interest thereon $ 465.00

Future Loss of earnings $ 13,500.00

Past Gratuitous and paid services $ 20,465.00

Interest thereon $ 1,228.00

Future Gratuitous and Paid Services $ 26,437.00

Special Appliances $ 2,000.00

Home modifications $ 10,000.00

Rest and Recreational needs $ 10,000.00

General damages $ 40,000.00

Total $131,846.00