Thompson v Dr Haasbroek - [2010] NSWSC 111

No judgment structure available for this case.

CITATION: Thompson v Dr Haasbroek [2010] NSWSC 111

HEARING DATE(S): 16-20/11/09; 23-24/11/09; 27/11/09; 30/11/09 - 4/12/09

JUDGMENT DATE :
29 March 2010

JURISDICTION: Professional Negligence List

JUDGMENT OF: Davies J

DECISION: (1) Judgment for the Plaintiff in the sum of $290,542. (2) The Defendant is to pay the Plaintiff’s costs.

CATCHWORDS: NEGLIGENCE - medical negligence - general practitioner - failure to detect and diagnose cervical radiculopathy - Plaintiff goes on to develop myelopathy as a result of undiagnosed underlying pathology – underlying pathology not caused or able to be prevented by the Doctor - causation – whether if diagnosed in due time the Plaintiff would have avoided permanent injury - earlier treatment would have avoided some permanent disabilities - multiple causes of Plaintiff's disabilities - assessment of damages where multiple causes.

LEGISLATION CITED: Civil Liability Act 2002

CATEGORY: Principal judgment

CASES CITED: Ren v Mukerjee [1996] ACTSC 119
Woolworths Ltd v Lawlor [2004] NSWCA 209

TEXTS CITED: A Graham Apley, Concise System of Orthopaedics and Fractures, (1999) Butterworths, England.

PARTIES: Sandra Thompson (Plaintiff)
Dr Johannes Haasbroek (Defendant)

FILE NUMBER(S): SC 20113/2009

COUNSEL: D E Graham & AGC Stenhouse (Plaintiff)
G B Evans (Defendant)

SOLICITORS: Maurice Blackburn Lawyers (Plaintiff)
TressCox Lawyers (Defendant)

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
PROFESSIONAL NEGLIGENCE LIST

DAVIES J

29 MARCH 2010

20113/2009 THOMPSON v DR HAASBROEK & 2 ORS

JUDGMENT

1 In 2003 the Plaintiff Sandra Thompson consulted a number of doctors at the Leeton Family Clinic for symptoms she was experiencing including headache, neck ache and pain in the right arm. Ultimately in July 2004 she was diagnosed by a specialist neurologist with cervical myelopathy secondary to compression of the cervical spine by osteochondral bars and disc bar protrusions. Although she was operated on fairly soon afterwards and again about 6 months later, she has been left with some permanent deficits in the form of incomplete quadriplegia.

2 The issues in the proceedings concern whether she was properly diagnosed and treated by the Defendant Dr Johannes Haasbroek during 2003 and 2004 and whether, if she had been so diagnosed and treated, she would have avoided the permanent medical problems that she now suffers from.

3 Mrs Thompson’s case, in short, is that Dr Haasbroek ought to have diagnosed her suffering from cervical radiculopathy, particularly when she consulted him on 26 June 2003. Her case is that if that had been identified she would, in a relatively short time, have been sent for a CT scan which would have demonstrated the compression of the cervical spinal cord from C4 to C7. That would have led to her being referred to a neurologist and probably, in turn, a neurosurgeon, for the neurosurgeon to carry out the sort of operation that Mrs Thompson underwent in July 2004 and subsequently.

4 The case was defended, first, on the basis that there was no breach of duty by Dr Haasbroek. Involved in that defence was the very significant factual dispute about what symptoms Mrs Thomspon had complained about each time she saw both Dr Haasbroek and the other doctors. In particular, Mrs Thompson asserted that the medical records containing the contemporaneous computer entries by Dr Haasbroek and the other doctors did not accurately reflect what she had said to the doctors.

5 Dr Haasbroek also defended the claim on a causation basis. It was said on his behalf that, if he had treated the Plaintiff in the way she claims she ought to have been treated during 2003, there would not have been a different outcome even if she had been operated on earlier in 2004 than in fact occurred.

Background

6 Mrs Thompson was born in 1950 and was, at the time of the hearing, 59 years of age. She is the mother of 7 children and she has lived most of her life in Leeton.

7 Only 3 things in her life prior to these events are of any relevance. The first is that she was injured in a motor vehicle accident in 1986 and suffered what was thought to be a whiplash injury. She had episodes of neck pain from time to time over the years which were treated with hot packs, massage, simple analgesia, chiropractic treatment and exercise, as well as swimming.

8 In 1996 the pain from that became so severe that she required admission to Leeton District Hospital for a number of days. At the time the neck pain radiated down her right arm but it responded to aggressive analgesic treatment and physiotherapy. She had x-rays at that time which showed spondylitic changes as well as changes suggestive of an old injury.

9 Mrs Thompson was a hairdresser by occupation and whether for that reason alone, or in conjunction with the injury in the motor vehicle accident, from time to time she experienced neck pain after working as a hairdresser. From time to time the neck pain was such that she had to cancel clients or reschedule appointments for clients.

10 The second event of significance was the loss of her son Clint in the Bali bombing in October 2002. The matter has some relevance to the issues in the present proceedings because of the resultant psychological effects upon Mrs Thompson that were still present during 2003 and 2004. She was taking Zoloft (an antidepressant) at least since October 2002.

11 The third matter of relevance is that Mrs Thompson had osteoarthritis in both her knees. At the time of the events complained of she was intending to have both her knees replaced. Indeed, she had been told by a Dr Kirwan in 2002 that both knees needed replacing. By the end of 2002 she had been prescribed Vioxx (a non-steroidal anti-inflammatory drug, now discontinued) and Tramal (an opioid analgesic) for the pain and discomfort she experienced in her knees by Dr Ross Ingram in the Leeton Family Clinic and also by Dr Haasbroek.

12 The most significant consultation for the events complained of was that of 26 June 2003. This is for a number of reasons, not the least of which is that both Mrs Thompson and Dr Haasbroek agree that on that occasion she reported pain in the neck radiating down the right arm. What was complained of at other consultations was far more contentious and involves the determination of which evidence is more reliable.

13 The case Mrs Thompson makes is that on the basis of what Dr Haasbroek recorded in his notes of 26 June 2003 he should have acted in the way I have referred to earlier, with the result that matters would have turned out differently for Mrs Thompson and, in particular, that she would not be left with the disabilities that she now has.

14 It is necessary, however, to examine the evidence of the other consultations during 2003 and 2004 commencing in February 2003 when Mrs Thompson says that she first complained of problems associated with her neck and arms.

15 The 2 principal conditions under consideration in the present case are radiculopathy and myelopathy. Radiculopathy is a disease, or a diseased condition, of the nerves and nerve roots, particularly the spinal nerves. On the other hand, myelopathy is a term that refers to pathological changes in the spinal cord. In the present case where the 2 conditions have a common cause, namely degenerative disease in the cervical spinal column, it is that common cause which results in compression of the cervical spinal nerve roots (that produces the radiculopathy) and ultimately compression of part of the spinal cord (which results in myelopathy).

The consultations

16 It appears from the records of the Leeton Family Clinic that the first time the Plaintiff consulted a doctor at that clinic was when she saw Dr Haasbroek on 6 October 2002. On that occasion it was in respect of a dog bite to her left hand.

17 She then saw Dr Ross Ingram (whom she had known since childhood, and who is now deceased), and one of those consultations was in respect of problems with her knees. She saw Dr Haasbroek again on 18 December 2002 for problems with her legs.

18 The Plaintiff says that she first attended the clinic with neck problems on 4 February 2003 when she saw Dr Ingram. She said she had a stiff painful neck with the top of her neck being painful as well as the back of the head. At the time she gave her evidence she could not remember how long the pain in the neck had been present. She said it was not responding to the usual measures she took when she had neck pain (described in paragraph 7 above) and she said it was associated with new problems being clawing of the right hand and pain going down to her right arm.

19 She says that she told Dr Ingram:

I am having trouble with my neck. It is aching all the time and my right arm is cramping up. I have to physically unclaw my right hand with my left hand.

20 She showed him how she unclawed the right hand. She further told Dr Ingram:

When my right hand closes up into a claw, it is like a ligament connecting my neck to my hand is being pulled, forcing my right hand to claw. I feel pain from my neck to my hand with this pulling sensation. I have to rub my arm to relieve the pain going down into my hand. It’s happening about 3 or 4 times per day. My usual treatment for neck pain is to use a hot pack, massage and Panadol, but this treatment is not working.

21 Mrs Thompson told Dr Ingram that she had had trouble with the pain in her neck for a long time because of her work as a hairdresser but she said recently the pain had been building up and the usual treatment not working. She also made reference to the pain in her left leg. She said that Dr Ingram examined her shoulders and neck and her legs, hips and knees. He told her that she definitely needed to have knee replacements.

22 Mrs Thompson said that Dr Ingram said:

I think you are suffering from a tension headache relating to the death of your son.

23 Dr Ingram wrote the following in the computerised notes:

History:

CNS:

Headache. Neck stiffness. 1 week.

Occip to bitemporal

…

Diagnosis:

Tension headache

24 Mrs Thompson said that the neck pain was not relieved by the medication that Dr Ingram prescribed.

25 Her next consultation at the Clinic was with Dr Haasbroek on 27 April 2003. Mrs Thompson said that she told Dr Haasbroek what she had told Dr Ingram on 4 February 2003. She also told him that the painkillers Dr Ingram had prescribed were not working and she said “I have lightning bolts in front of my eyes and I can’t see properly.”

26 She claims that Dr Haasbroek said:

You are struggling with the death of your son. You’re suffering from migraines.

If I am, they must be painless because I don’t have any headaches. I have a sensation of lightning bolts in front of my eyes after I have been sitting at a computer for a long time, but I haven’t had any headaches. I am probably not handling the death of my son, but I am still working and doing my job.

27 She claims that Dr Haasbroek responded:

No, you’ve got migraines.

28 The notes made by Dr Haasbroek relevantly say this:

Quite depressed and not coping so well with the death of her son.

…

Diagnosis:

29 Mrs Thompson says that the treatment prescribed by Dr Haasbroek did not remove the neck pain – rather it got worse and was constant. She said the pain going from her neck into her right hand was intermittent but the frequency and pain of it increased. She said the pain was associated with tingling like electric shocks. She said she experienced difficulty undressing, particularly removing jumpers, pullovers, skivvies and the like because of the pain she felt from the neck down to her hand when she moved her arms above her head.

30 In May 2003 she said she attended a training conference for Centrelink in Queanbeyan where desks were set out in a U shape. From where she was sitting she had to turn her neck to see the whiteboard and the neck pain was worse after the conference.

31 She returned to see Dr Haasbroek on 26 June 2003. She claims that she said to him:

The tablets are not working. I am getting pain in my neck radiating down my right arm and into my hands. My neck and right shoulder are aching.

32 She says that she “again told Dr Haasbroek” that her right hand was clawing up and that she had to unclaw physically using her left hand. She said:

Sometimes, my right hand goes into spasm and I can’t mentally unclaw it. I have to use my left hand to manually unclaw my right hand.

33 She said that Dr Haasbroek stood behind her while she was seated and asked her to raise her right arm. She said she could not elevate her right arm above the horizontal. When she tried she felt pain in her neck going down into her shoulder and into her right hand. After he examined her he said to her:

You should have an injection of cortisone into your right shoulder.

34 Dr Haasbroek’s notes disclose the following:

Examination:

…

Musculo-Skeletal:

Right shoulder OA with cracking and cannot elevate shoulder above 90 degrees

Stiff and tender neck

Diagnosis:

Management:

Advised to have intra-articular injection into shoulder and neck (soft tissue injection) 2 amps Celestone and 10 mlo (sic) Marcaine

…

35 Mrs Thompson said that she subsequently saw a chiropractor, Mark Carter, on 26 and 27 June and 2 July 2003 for treatment of the neck pain. The notes from the chiropractor’s practice show that in fact on 26 June she saw a locum at the practice. The handwritten notes are not easy to read but with the assistance of a typed version of those notes provided by the chiropractic practice it would seem that they read as follows:

Training. Constant R arm ache/pain 2/52 intensely 8 hrf/day + driving c5lpRsh[oulder] ROM [either range of movement or restriction of movement] + home exercises. GP this pm – nsaid

36 Mrs Thompson said that after she had seen Dr Haasbroek on 26 June and for the next 6 months she continued to have neck pain going down into her right hand. She coped by taking the painkillers she had been prescribed, using massage, heat packs and going to the chiropractor (in fact in 2003 she only attended on the 3 occasions just mentioned). She said she felt like a hypochondriac because, despite going to see doctors about the pain, they were ignoring it and not acknowledging it. She thought they were focussing on how she felt about her son’s death and problems in her marriage. She felt that they did not believe her when she said she had pain in her neck.

37 The next consultation to which the Plaintiff refers is one on 27 January 2004 with Dr Haasbroek. However, the Leeton Family Clinic records shows that she had consultations as follows: 25 September 2003 (Dr Haasbroek for the removal of skin tags), 4 November 2003 (Dr Gerald Yuen for 4 days of nausea, lethargy and bloating), 7 November 2003 (Dr Haasbroek for Urinary Tract Infection), 13 November 2003 (Dr Haasbroek to obtain a certificate regarding her son) and 2 January 2004 (Dr Haasbroek for sore throat, fever and pain in the pelvic region and in her vagina).

38 Mrs Thompson said that she returned to see Dr Haasbroek on 27 January 2004. She was having pain in her knees but she also had continued pain in her neck going down into her right hand. She said the pain in her knees was different from any pain she had experienced before, and was different from the pain she experienced when Dr Kirwan told her that she needed knee replacements. That pain had been an ache in the front and side of the knees whereas the new pain she felt in January 2004 was sharp and at the back of the knees running down to the feet. Mrs Thompson said Dr Haasbroek ordered x-rays of her knees and her shoulders.

39 The notes of Dr Haasbroek for that consultation relevantly say this:

Severe bilateral knee pain.

Has been told by Dr Kirwan 2 years ago that she needs 2 KRs.

Multiple sun spots cryo’d

Actions:

Diagnostic imaging requested: x-ray – knee (L), knee (R)

40 Mrs Thompson says that on 2 March 2004 she consulted Dr Yuen at the Leeton Family Clinic. She said to Dr Yuen:

I have neck pain that is going into my right shoulder and down my right arm. I have a very weird/strange sensation on the top right hand side of my chest. If I didn’t know any better I would think that the heart was on the wrong side of my body, on my right side near my shoulder. It feels like I am having electric shocks in that area. I am also having a weird sensation in the back of my throat.

41 Mrs Thompson said that Dr Yuen examined her chest with a stethoscope, looked at her ears, nose and throat and said:

Your heart isn’t on the right side of your chest. I don’t know what it is, it may be asthma.

42 The notes of the Leeton Family Clinic largely accord with this account. They relevantly read as follows:

Getting muscular shoulder and neck pain. Also right chest funny sensation thought it was asthma. Assoc cough and sore throat and funny sensation throat.

43 Mrs Thompson next saw Dr Hassbroek on 24 March 2004. However, prior to that date there is an entry in the medical notes on 14 March 2004 by Dr Hassbroek which reads: “documents saved – both knees, shoulders”. This appears to be a reference to a radiology report of x-rays to Mrs Thompson’s knees and shoulders of 9 February 2004. On that report next to the word “REFERRER” is typed “Dr Belinda BAILEY leetonmc@ promedicus.net”. That has been crossed out and the name Dr Stephankova written in handwriting. No one was able to explain why those doctors’ names appeared on the document, nor how those x-rays might relate to the notes of 27 January 2004 (para 39 above). The report in relation to the shoulders simply says:

The acromioclavicular and glenohumeral joints appear normal. No rotator cuff calcification is seen.

44 Mrs Thompson says that when she presented to Dr Hassbroek on 24 March 2004 she was using a walking stick and he said to her “you look funny on a walking stick”. She replied “I cannot keep my balance and I am aching all over. I am having pain from my head to my toes with a very bad pain in my arm and my left foot is numb and painful.”

45 Mrs Thompson says that she cannot recall Dr Haasbroek examining her, and he certainly did not examine her left foot, nor did he advise her of any diagnosis. She says that he did not tell her that she had depression or anything else.

46 The notes for that day relevantly say:

Aching all over

Examination:

General:

BP (sitting): 130/70

CVS:
Heart sounds: x2

Respiratory: No respiratory distress. No recession. Not using accessory muscles. No wheeze.

GIT:

Reason for visit:

47 As Mrs Thompson makes clear in her statement Dr Hassbroek ceased her prescription of Zoloft and prescribed Edronax which is a different anti-depressant drug.

48 Mrs Thompson then went to Mark Carter’s chiropractic practice on 7, 14 and 21 April 2004, she says, for treatment of her neck pain. The notes for the locum at the practice on 7 April read “CX [cervical]/shoulder p[ain] – tingling both arms.

49 She said the pain did not go away. The numbness in her left leg gradually crept up her leg and she started feeling numb in her right foot. She felt weak in her legs at work. She held onto furniture to help move around the office. She started being woken by a burning sensation across the whole of her abdomen. The numbness seemed to be spreading upwards to her abdomen. She started feeling a tingling sensation in both arms down to her hands as if her arms or legs had gone to sleep and when the pressure was relieved there was a tingling sensation.

50 She said that she went to the Leeton Medical Centre on 23 April 2004 for a flu shot. She attended that Centre again on 24 May 2004 to get a referral to see Dr Carroll, a cardiologist, as she was planning to have a knee replacement and she had to have her heart checked out for that purpose. Her explanation for attending the Leeton Medical Centre on those occasions was that it was across the road from Centrelink where she worked.

51 Mrs Thompson says that she went to see Dr Robert Byrne, a General Practitioner, on 2 and 5 June 2004. She saw him because the Leeton Family Clinic was closed. She said that she told Dr Byrne:

My neck and right shoulder are painful and my right arm is going numb. My left leg is numb and my right leg is painful. The numbness seems to be spreading to my stomach.

52 Dr Byrne examined her on the examination bed. He moved her legs and raised each of them off the bed. He said, “Yes, I can see you need knee replacements.” He then briefly examined her neck and after the examination he said, “I think your stomach is going numb because you have your belt too tight. It is problem with a lot of Coleambally farmers”.

53 Mrs Thompson says that she cannot remember whether the conversation in the examination took place on 2 or 5 June or whether parts of it occurred over both consultations.

54 The notes made by Dr Byrne of these consultations are as follows. For the consultation on 2 June all that is recorded is Mrs Thompson’s blood pressure. For the consultation on 5 June the following appears:

Actions:

Diagnostic imaging requested: US-leg (L) Doppler

Prescriptions printed:

CELEBREX CAPSULE 200MG USE. mdu

55 After consultations with Dr Byrne, she continued to experience pain and numbness, poor balance and weakness. The numbness progressed. She felt numb up to under her armpits and across her chest. She felt tingling in her right leg and numbness in her left leg and right foot. She felt she had numbness and tingling in her arms. She found it progressively more difficult to pass a bowel motion but she never lost control of her bowels. She lost the urge to urinate. This problem first started in March 2004 and became progressively more noticeable.

56 Mrs Thompson says that she saw Mark Carter (the chiropractor) on 26 June to help with the pain. At the end of the consultation he said to her, “Sandra, you really need to go to the doctor and get a CAT scan.”

57 Mark Carter’s notes for that day read as follows:

Walking stick. Feels numbness and pain from T4 down. Prog, worsening last month: C6 pls cc/tptlx/suggest further medical advice.

58 On 29 June 2004 she went to see Dr Haasbroek. She said to him, “I have neck pain radiating to my arms, numbness under my armpits down to my feet, tingling in my arms and legs and I’ve lost my balance.”

59 Dr Haasbroek examined her and said to her, “Your reflexes are alright. I can’t find anything wrong. I think you have depression.” She said that this was the first time Dr Haasbroek had told her that she had depression (cf in this regard paras 4, 5 and 46 above). She got upset and said, “Bernie, I am sad but I am sick. I want a CAT scan.” Dr Haasbroek gave her a referral for a CAT scan but did not say it was urgent. The CAT scan was performed at Griffith Base Hospital on 2 July 2004.

60 Dr Haasbroek’s notes for that consultation are more extensive than earlier notes because they contain the details of the neurological examination that he conducted on that day. Omitting those results (which do not disclose any neurological abnormalities) the notes relevantly read:

Marriage over and quite stressed about it.
Numb from under arms to about hips. Both legs up to feet. No pain but paraesthesiae. Feels off balance and feels like she may fall over.

Has sore neck.

No weakness in hands.

No headaches.

…

Actions:

61 Mrs Thompson said that she had to see a cardiologist before her knee replacement surgery. She saw Dr Peter Bortz at Griffith Base Hospital on 7 July 2004. He carried out a number of tests and asked who had been looking after her. She told him it was Dr Haasbroek.

62 She then said to him, “I have neck pain radiating to my arms, numbness under my armpits down to my feet, tingling in my arms and legs and I’ve lost my balance. I am having problems with my bowel motions. I had a CAT scan of my neck on 2 July 2004 at this hospital.”

63 Dr Bortz then apparently made some enquiries on the telephone about the CAT scan results and told Mrs Thompson that she needed an emergency MRI scan. He made arrangements for her to see a neurologist, Dr Ron Brooder, in Albury, after the MRI scan which was to be performed the next day.

64 Mrs Thompson had the MRI scan and then saw Dr Brooder. He arranged for her to be taken to Melbourne immediately by ambulance for an operation by Dr Myron Rogers, a neurosurgeon. The operation was an anterior decompression at C5/6 and C6/7, and was carried out on 13 July 2004.

65 Mrs Thompson underwent rehabilitation and was ultimately discharged home on 17 August 2004. She attempted to return to work on 7 and 11 October 2004 but was not successful in being able to complete the graduated return to work programme.

66 Her condition deteriorated and she was sent back to see Dr Rogers by Dr Brooder in November 2004. An MRI was again performed which demonstrated that there was no cord compression at the levels at which the operation had been carried out. However, as she had a congenitally small cervical canal it was decided that she should undergo an posterior decompression of the cervical canal. That was performed by Dr Rogers on 2 December 2004.

67 It seems to be the position that her symptoms and disabilities have stabilised after the second operation.

Assessment of witnesses
(a) Mrs Thompson

68 I did not find Mrs Thompson to be a particularly satisfactory witness and I consider that a number of aspects of her evidence were unreliable. In reaching that view I take into consideration that on a number of occasions during her evidence she was in obvious discomfort and distress which occasionally required an interruption to her evidence by short breaks. I also bear in mind the cautionary words of Miles CJ in Ren v Mukerjee [1996] ACTSC 119 at [90]–[91]:

[90] … It needs to be said clearly in the light of trial experience that to expect witnesses to remember with precision and objectivity events which occurred so long ago, over so short a period, in circumstances of such stress for some of them and, in certain instances, where some of them have an interest in the eventual findings of the Court, is to expect the humanly impossible. Some of the witnesses were asked to recall the events only recently. Others, including Dr Mukerjee, have almost certainly had the events in their minds over the years more or less continuously, with the virtual inevitability that reflection has built upon perception and that what now passes for recollection may be indistinguishable from belief. Eventually, mistaken belief which is nonetheless genuine may displace accurate data recorded in the mind by way of observation or fill gaps in the mind where no data was ever recorded.

69 Nevertheless, from almost the outset of the cross-examination by Mr Evans for Dr Haasbroek (which cross-examination was conducted politely and without any aggression) she was unusually defensive. On a number of occasions she repeatedly gave non-responsive answers to questions which had to be repeatedly put. The impression that I gained was that Mrs Thompson did not want to answer those questions.

70 Of much more significance was the fact that Mrs Thompson was clearly confused on a number of occasions in relation to when events occurred or when particular symptoms commenced. On a number of occasions she gave inconsistent evidence about these matters.

71 Another matter which caused me great concern was that the Plaintiff claimed not only that Dr Haasbroek did not accurately record the matters and symptoms she complained about on her various consultations with him, but also that Dr Ross Ingram, Dr Gerald Yuen and Dr Robert Byrne failed to record matters and symptoms of which she complained to them. To a lesser extent, the same issue arose with regard to what was recorded by the chiropractor Mark Carter and his locum.

72 One significant matter in this regard was Mrs Thompson’s assertion that from the time she saw Dr Ingram on 4 February 2003 she complained about her right hand clawing up, necessitating that she or some other person unclaw the hand physically. She had referred to this in paragraph 32 of her main statement of evidence.

73 Her own counsel, Mr Graham, asked her about that paragraph in her evidence in chief and this exchange occurred:

Q. Now just going forward again to par 32, you talk about clawing and unclawing of your right hand. What do you mean by "clawing" of your right hand?
A. Exactly that, and it would be something that I couldn't undo mentally and I'd be working at Centrelink and it would just happen and the pain would come from down my neck, down my arm and sometimes I'd have to say to my customer, oh, quick pull my finger out because I couldn't mentally unclaw it.

HIS HONOUR

Q. So it was your index finger that was becoming bent over?
A. Yes.

74 Mr Evans cross-examined about this and the following evidence was given:

Q. When you were giving evidence yesterday to questions that Mr Duncan Graham was asking you, remember giving some evidence about clawing of your right hand?
A. Yes.

Q. And again you were endeavouring to answer the questions as truthfully and as accurately as you could, weren't you?
A. Yes, I did.

Q. And you were asked - page 26 - what you mean by clawing and you told your counsel exactly that and I would be working at Centrelink and it would just happen and the pain would come down from my neck, down my arms and sometimes I would have to say to my customer oh quick pull my finger out because I couldn't mentally unclaw it - remember that evidence?
A. Yes.

Q. And you were endeavouring to be as accurate as you could be giving that answer?
A. Yes.

Q. Your clear recollection was that you couldn't mentally unclaw that hand, that's what you said?
A. That's correct.

Q. And when it happened you would have to say to a customer at Centrelink to help you to unclaw it?
A. That's correct.

Q. And you went on to say in an answer later that again you couldn't mentally do it, you wouldn't have the strength so you would have to get someone to do it, remember that?
A. Yes, that's correct.

Q. And that somebody would be a Centrelink customer, wasn't it?
A. That's correct.

75 Mr Evans returned to this matter at a later time and the following evidence was given:

Q. At no time when you saw Dr Ingram did you ever make any complaint of your hand clawing up, did you?
A. It had not happened very much with Dr Ingram and the pain was only radiating down, tingling in my arm which (sic) I saw Ross, I had tingling in my arm.

Q. May his Honour assume from that answer you drew the distinction between "only tingling in your arm" as distinct from the clawing I was asking you about and thus the clawing had not happened when you saw Dr Ingram and you did not explain to him about it; is that the picture you seek to paint?
A. No, I don't paint pictures.

Q. Are you telling his Honour because there was only tingling in your arms it was not to Dr Ingram that you complained of clawing in your hand, is that correct?
A. No, it is not correct. I had different symptoms on different days, I would go to the doctors and tell them progressively what was happening to me.

Q. You certainly never told the late Dr Ingram anything about the clawing of your hand, did you?
A. I can't see how you can make these statements, sir.

HIS HONOUR:

Q. Mrs Thompson, you need to answer the questions if you are able to do so. It has been put to you, you never told Dr Ingram about the clawing in your hand, is that right, do you remember?
A. I think I did, your Honour.

EVANS:

Q. When you say you think you did, you are really just guessing, aren't you?
A. No.

Q. You have no recollection?
A. No.

Q. You have no recollection…
A. Yes …

HIS HONOUR:

Q. Mrs Thompson, you must wait for Mr Evans to finish the question.
A. Yes.
EVANS:

Q. You have no recollection of telling the late Dr Ingram about that symptom of hand clawing, do you?
A. Yes, I am sure I told Ross.

Q. The hand clawing of which you have told his Honour didn't happen at least on your version of things yesterday until you were working at Centrelink, did it?
A. No, I don't think that's true. I said it happened when I was working and customers used to release it. I don't think, your Honour, I said it only happened there. I said it happened when I was at work.

Q. You said it happened when you were at work at Centrelink, didn't you?
A. But I was not time specific.

Q. The precise context in which you put this hand clawing yesterday was it happened at Centrelink, wasn't it?
A. Yes, it did happen in the office at Centrelink.

Q. You said "I would be working at Centrelink and it would just happen", didn't you?
A. That's absolutely a correct statement.

Q. The question you were asked, may I remind you, was: "What do you mean by clawing of your right hand" and the answer you gave was: "Exactly that" and then you identified where and in what circumstances it happened, didn't you?
A. That's correct, your Honour.

Q. You did not add to your answer, no-one interrupted you while you were giving it, that it happened before Centrelink and at other times, did you?
A. No sir.

…

Q. When your Counsel asked you what you meant you took the opportunity to make precisely plain by the words "exactly that" what you could not undo when it happened, and who or the circumstances in which it would be alive yesterday you took that opportunity yesterday, didn't you?
A. Yes, but I had told Ross my arms were tingling and my hand was cramping, tingling.

Q. You never told Dr Ingram, the late Dr Ross Ingram, that your hand was clawing and that this happened in circumstances where you did not have the strength to unclaw it and you needed the assistance of workers or family or relatives to unclaw it, you never told him anything like that, did you?
A. Maybe I didn't use the same terminology but it proceedingly got worse and Ross had died then but it had started when I saw Ross and I had told him about my arm, I had told him about my arm cramping and closing up and by the time as it progressed on it was not cramping, it was clawing and it was clawing like that, your Honour (indicating). But when I was talking to Ross it is tingling, cramping and tingling, and I know I told Ross that it was happening.

Q. Your account of what you told Dr Ingram in your statement - and may I invite you to look at paragraph 32 of your statement; I don't want to be mathematical about it but virtually the whole of paragraph 32 of your statement is taken up with the right arm cramping up, that you have to physically unclaw it, it closes into a claw like a ligament". I won't read it all to you. Virtually the whole of 32 is about your hand cramping, clawing, so you have to physically unclaw it. Do you see that?
A. As I said, I did tell Ross.

Q. Mrs Thompson, do you see it there first?
A. Yes. I did tell Ross.

Q. You say that is the entire symptomatology that you recall relating to Ross Ingram on that date, do you?
A. Well, why would I make that up?

76 Mr Evans then put questions based on the absence of any reference in the various doctors’ notes about hand clawing, and then the following evidence was given:

Q. That could be the same reason why it's not on Dr Ingram's notes on 4 February 2003 because you never told him either?
A. No, that's not true.

Q. It could be why it's never on Dr Haasbroek's notes in April 2003 or June 2003 because you never told him in the first place?
A. No, your Honour, that's not true.
Q. See, if this clawing business happened in the circumstances in which you told his Honour yesterday at Centrelink it couldn't possibly have happened at the time you saw Dr Ingram on 4 February 2003, could it, ma'am?
A. How many times? Your Honour, I - I'm getting confused because I'm answering the same questions over and over. Could you repeat that question as a Yes or No answer?

Q. A Yes or No answer? Given that you didn't start working at Centrelink until 29 June 2003 and the account of this clawing that you gave yesterday happened while and during your work at Centrelink?
A. It was also happening…

Q. Bear with me please, Mrs Thompson, I just want to put your precise words to you. It happened while you would be working at Centrelink and it would just happen?

A. That's correct.

Q. And it would come down your neck, your arm and sometimes you would have to say to a customer to pull it out. If this happened in those circumstances given that you didn't start working at Centrelink until 29 June 2003 it is quite impossible for you to have made any such complaint of any such symptom to Dr Ross Ingram on 4 February 2003, isn't it?
A. No, it's not, your Honour, because my office at Riverina Community College is right next door to Centrelink and my job at Riverina Community College was to deal with Centrelink so I was actually in both offices in and out, in and out, in and out. So if I've used the word Centrelink and not Riverina Community College half the time I was in one office, half the time I was in the other office and it was obviously by the dates happening when I was at Riverina Community College and the whole jobs were all intermittent with JobNetwork so if I've said one over the other it would be just a mistake. Not one that was a lie, just a mistake.

Q. Mrs Thompson, you'll say anything…
A. No, that's not true…

Q. … you'll say anything to justify your version of what you told …
A. No, that's not true…

Q. … of what you told Dr Haasbroek from time to time, won't you?
A. No, that's not true. When I say next door I really mean next door in a small country town.
…

Q. So the place at which you say this clawing happened so badly when you needed clients to unclaw your fingers was Riverina Community College, was it?
A. I can remember it happening at Centrelink.

Q. But you are telling his Honour you can remember it happening at Riverina Community College?
A. No, you said that. I was going by dates and correcting something by dates, your Honour, it's not my intention to - to be incorrect on dates because dates are factual and all of this was just happening over the time and the dates for Riverina Community College when I worked there. I started with Centrelink in May of 2003 and I can remember distinctly it happening in Centrelink. I was with - went and saw Ross in February and it was happening in February. I don't remember anybody having to help me at the beginning in February. I could undo it myself but later on I would have to get somebody to help me.

…

HIS HONOUR

Q. Doing the best you can, Mrs Thompson, when do you think it was for the first time you had to ask somebody else to unclaw your hand?
A. I don't think it was till early 2004.

Q. And did it concern you that it had got to that point?
A. It was horrifying. I was - I didn't know what was happening. I thought, as I've stated I thought it was a ligament and my dad, who's a barber by trade when he was in his early 20s, he even said to me some time …

…

Q. My question was do you think the first time you had to get somebody else to unclaw your hand and that you think might have been early 2004 and then I asked you did that concern you and you said, yes, you thought it was a ligament?
A. From holding scissors.

Q. And did that send you back to see Dr Haasbroek or a doctor when you were concerned about that?
A. Yes, it did, sir.

Q. And is that when you told Dr Haasbroek for the first time that you had to get somebody else to unclaw your hand because you couldn't?
A. In 2004 I'm pretty sure of that, not 2003.

Q. Can we be any more specific about when in 2004?
A. I don't, I can't, I'm sorry.

77 Mrs Thompson was also asked about having told the chiropractor of the hand clawing problem. The following evidence was given:

Q. And from time to time you would see the chiropractor about your neck and your shoulders and your hips and your spine and various other things over the years, didn't you?
A. Yes, as previously stated.

Q. And if there was a specific problem or a specific onset of a symptom that worried you you would tell Mr Carter or if he wasn't there the locum who was attending you, wouldn't you?
A. Of course.

Q. And you would expect in the ordinary course a brief note of the symptoms related by you to that practitioner?
A. Yes.

Q. And you tell his Honour that this hand clawing as early as February 2003 and then getting more serious in the first half of 2004 was a serious matter to you?
A. Yes.

Q. You never told the chiropractor about it, did you?
A. Yes, I think I did.

Q. When do you think you did that?
A. When did I go to the chiropractor in 2003?

Q. When do you think you told the chiropractor about this particular serious symptom?
A. When did I go to the chiropractor in 2003?

Q. Mrs Thompson, are you playing games with me?
A. No, I'm not, sir, but I don't know when I went in 2003 and that was when it started.

Q. Well, ma'am, you are the patient. It's your chiropractor. You are telling his Honour you told the chiropractor something. I'm asking you when you say you did that?
A. When I went in 2003.

Q. And you saw the chiropractor three times in 2003, do you accept that? That's what's in your statement anyway, para 52, if I may assist you?
A. Thank you. Yes, I've got that I went there for the neck pain, going down my arm so, yes, I would have told him about that.

Q. What you've got there exactly in para 52 is neck pain, not neck pain going down your arm. That's the fact, isn't it?
A. Yes.

Q. Just taking your statement accurately, you went for treatment of the neck pain. That's what you have got there, isn't it?
A. I didn't normally go to a chiropractor.

Q. Please, Mrs Thompson, I'm just asking you to look at your statement in fairness. You've got in your statement I saw the chiropractor on those dates for treatment of the neck pain; that's the fact, isn't it?
A. That's what the statement says, yes.

Q. And you were asked at the opening of your evidence whether you wanted to change anything in that statement, weren't you?
A. Yes, I definitely was.

Q. And you didn't seek to change para 52 of that document, did you?
A. No, I did not.

Q. And there's nothing there about telling the chiropractor about a clawing symptom, is there?
A. No, there isn't. You go for the whole body.

Q. And that's because you never told the chiropractor anything about a clawing symptom on any of those three dates for treatment of the neck pain?
A. You go for the whole body.

Q. Mrs Thompson, my question is the reason there's nothing there about telling the chiropractor anything about clawing is because you did not tell the chiropractor any such thing; that's right, isn't it?
A. I previously stated that when I go to the chiropractor he treats my whole body.

HIS HONOUR

Q. Mrs Thompson, I'm afraid that isn't an answer to Mr Evans' question. He's asking about whether you told the chiropractor about the hand clawing.
A. And as I just said, your Honour, yes, I did.

EVANS

Q. You have looked at Mark Carter's typing up of his handwritten notes, haven't you? You got your solicitors to get a copy of it. He wrote to them, typed out and you've looked at it, haven't you?
A. Yes.

Q. And you not only read the dates on it but you read the entries on it, haven't you?
A. Yes.

Q. And you know perfectly well that neither Mark Carter nor his locum for any of the dates identified in para 52 of your statement have made any notation whatsoever of any hand clawing symptom, have they?
A. I really can't remember what the notes said but do you want me to answer that fully or is that enough?

…

Q. And you've certainly, may I suggest to you, told him nothing whatsoever about a clawing of the hand, have you?
A. I'm not denying but that doesn't mean that it wasn't happening.

Q. And nor at least from your chiropractor's notes and we're back to Mr Carter on the following day, 27 June, is there any notation by him of you telling him anything about a clawing of the hand, is there?
A. And there's not any that says it didn't, wasn't happening either.

Q. And on what appears to be 2 July nor is there anything there about a clawing of the hand, is there?
A. There's not any that says it's not happening either.

…
Q. There's no record whatsoever by this man Carter who has been treating you on and off for ten years of you telling him anything about hand clawing, is there?
A. There's not any that says I didn't either.

HIS HONOUR

78 There was also an issue of when Mrs Thompson first went to see either Dr Haasbroek or the chiropractor using a walking stick. She maintained that she had been on a walking stick the whole time from March 2004. In that regard the notes of the chiropractor refer to her using a walking stick when she visited on 26 June 2004. The following evidence was given in cross-examination:

Q. Can I come back to the original question? You didn't use a walking stick when you attended Mark Carter's chiropractic practice any earlier than 26 June 2004, did you?
A. Yes, I did, your Honour.

Q. Can you offer any explanation why he specifically notes it for the first and only time on 26 June 2004?
A. No, I can't offer an explanation, your Honour. Perhaps I had left it in the dressing room.

HIS HONOUR

Q. Was there some point where you used a walking stick whenever you went outside your home?
A. Yes, when I lost my balance.

Q. When was that?
A. I think it was about - about March.

Q. What enables you to remember it was about March?
A. Nothing specifically but except that I remember talking to my girlfriend out the front of Centrelink and she said to me "Sandra, what is wrong with you?" and I said that I felt like I was slowly dying and it was cold and I was on a walking stick and she was one of my hairdressing friends and she said "What are you doing on a walking stick?" I said "I feel like I'm slowly dying".

Q. How do you relate that to March?
A. Because it was cold and I had winter clothes on, we had just changed over to our winter uniform.

EVANS

Q. On that basis it may have been April, may it not?
A. No, because my son's born in April, the 22nd.

Q. So it doesn't get cold in April?
A. It's already cold.

Q. So in March you're in your winter uniform in Leeton, are you?
A. You can you be in a blazer - and I remember I had my blazer on. Leeton's a funny place, it can be summer one day and winter the next and it can change, and I just remembered that I had the blazer on talking to Roxanne. But I could have been in - it could have been 40 degrees the next day too.

HIS HONOUR

Q. How does that enable you to remember it was March?
A. I don't know, your Honour, I just - it just comes to my mind it was March.

EVANS

Q. It might have been a cold day in April with a warm day the following day just as easily, couldn't it?
A. It very well could have been but March comes to my mind, your Honour.

Q. And equally it could have been a cold day in May?
A. It could have been a cold day in December.

Q. It could have been a cold day in May 2004 and a warm day afterwards and another cold day and another warm day just as easily…
A. We have had the fire on in December.

79 Another unsatisfactory aspect of Mrs Thompson’s evidence was her assertion that every time she saw Dr Haasbroek throughout this period it was about her neck or her legs. The following exchange occurred during cross-examination:

Q. Do you remember seeing Dr Haasbroek on 26 June 2003?
A. I hope it's written down that I saw him.

Q. But you don't remember what happened between you and he on that day, you don't remember what he said or what you said?
A. Every time I went to Dr Haasbroek was about my neck, pain in my neck because that was from the first time I went to him.

Q. So every time you went to see Dr Haasbroek it was about your neck pain, is that what you are saying?
A. Yes, or the change in my legs, my numb foot, the change in the pain of my knee; that was totally different to the knee replacement pain, it was very different. My body was changing.

80 When, subsequently, Mr Evans identified for her particular visits such as those on 25 September 2003, 7 November 2003 and 2 January 2004 (all of which consultations she had omitted from her Statement of Evidence) she agreed that she did see Dr Haasbroek for the matters recorded in his notes which did not concern her neck, arms, hands or legs.

81 She said that she had had “no treatment whatsoever from Dr Haasbroek for depression or treatment for the loss of my son in Bali” yet elsewhere she admitted that she had been on Zoloft and Edronax prescribed by Dr Haasbroek although she claimed not to know that Zoloft was an antidepressant despite admitting that when she saw Dr Haasbroek on 26 June 2003 she told him that her “mood seemed alright so the Zoloft must be working”. In fact, her evidence about why she took Zoloft in the first place was so strange as to be unbelievable. I asked her if she was able to remember what it was that caused her first to be prescribed Zoloft and the following exchange took place:

A. I really don't know because you felt a lot of times you are put on medication, you don't know why people put you on it and it's something I have learnt the hard way, that I must not, and I now have a medical book at home what doctors prescribe you.

Q. Is Zoloft the first you had ever been put an antidepressant?
A. Yes, and I didn't know it was an antidepressant.

Q. What did you think it was?
A. I don't know why I was put on it for, I've never been somebody to have at the depression. I think when Clint died I was grieving and it was terrible but I have always had very high powered jobs, managerial jobs and I had seven children, I didn't have time for depression.

Q. Can you think of any incident or event around 1998 or 1999 that might have led to a doctor saying you should got on Zoloft?
A. Probably it came out on the market and everybody was buying it. I don't mean that to be facetious. I don't know. Nothing major happened; my Mum and Dad and my siblings are still alive, I handle life really well, I've been back to Uni, I did social work, I was a counsellor dealing with Centrelink, I helped many people in Leeton. I loved my welfare work; very well balanced, I don't know why I was on it.

82 This matter is of some relevance because of what Dr Haasbroek has recorded in his notes of 24 March 2004 (that she was suffering depression) and also his notes of 29 June 2004 in relation to her stress over the end of her marriage. Mrs Thompson denied ever discussing her marriage with Dr Haasbroek. It was not clear therefore where the information contained in the notes would have been derived by Dr Haasbroek.

83 Her recollection of the prescriptions she was given for some of her tablets was shown to be wide of the mark. She said that the prescriptions for both Tramal and Vioxx were given to her each with 5 repeats. The computer printout from the Leeton Family Clinic shows that on no occasion was Tramal prescribed with any repeats and the prescriptions for Vioxx always came with 3 repeats. That mistaken belief on her part leads inexorably to the conclusion that her evidence about how many Tramal tablets she was taking throughout 2003 and 2004 was wrong. She said she was taking 2 tablets 3 or 4 times a day on a daily basis. However, as she only obtained 20 Tramal tablets each on 18 December 2002, 27 April 2003, 25 September 2003, 27 January 2004 and 24 March 2004 (prior to her operation) she could not have been taking anything like the quantity of Tramal that she asserted. This was a relevant matter because of her alleged pain levels.

84 Of course, she cannot be criticised for not being able to remember the number of repeats on any particular prescription nor, perhaps, even the number of tablets she was taking on daily basis, but her evidence was given without any element of uncertainty and she claimed to have a specific recollection when pressed about the matter. She ultimately agreed that her recollection of when and what tablets she was prescribed in the first instance derived from an inspection of the notes of the Leeton Family Clinic and not from any independent recollection.

(b) Robert Thompson

85 Robert Thompson was Mrs Thompson’s former husband. Although they have been divorced they were endeavouring to reconcile at the time of the hearing of these proceedings. They were living in the same house prior to the December operation although not as husband and wife.

86 His evidence largely supported Mrs Thompson’s evidence about restrictions on her and what tasks were undertaken by each of them prior to the onset of the problems and the operation.

87 In relation to the problems she experienced leading up to the operation, his evidence was that he observed she had problems for about 6 months prior to her first operation. He said she complained to him of pain in the neck, that her body was tired and aching and that she had tingling on her right side. He observed that she put hot packs on her neck in that approximate 6 month period. He gave evidence that in early 2004 he saw her using a walking stick and he saw her lose balance.

88 Although he said nothing about it in his statement (and one might have expected a reference to it) I permitted Mrs Thompson’s counsel to ask questions in relation to the hand clawing. Mr Thompson said that he could recall Mrs Thompson unclawing or pulling back the fingers on her right hand at some time between October 2002 when their son Clint died and her operation in July 2004, but he was not able to be more specific. In the light of the whole of his evidence about his observation of Mrs Thompson’s problems I do not believe that he observed the hand clawing prior to the 6 month period before her first operation during which he observed her other problems.

89 Although in his statement Mr Thompson attributed the marriage break up to his wife’s medications and her inability to work and do other things independently there was sufficient other evidence (including from Mr Thompson in cross-examination) that the marriage problems predated that time and were at least partly attributable to their son’s death. I do not consider that that particular belief of Mr Thompson’s means that I should not accept the rest of his evidence which I thought was given in a manner that was intended to be helpful to the Court.

(c) Kaleb Thompson

90 Kaleb Thompson is one of Mrs Thompson’s sons who has lived with her at various times, certainly for some or all of 2004 and for some periods subsequent to Mrs Thompson’s operations. In addition, he is an electrician and has done quite a bit of work in modifying properties in which Mrs Thompson has lived and is living.

91 He gave evidence also about the assistance that he has provided to Mrs Thompson and continues to provide in terms of work around the house and the grounds.

Summary

238 I summarise the heads of damages recoverable by Mrs Thompson as follows:

(i) Non-economic loss $142,000

(ii) Past travel expenses $2136

(iii) Past home modifications $5000

(iv) Other past out of pocket expenses $6098

(v) Interest on items (ii), (iii) and (iv) $2093

(vi) Past domestic assistance $18,438

(vii) Future domestic assistance $56,338

(viii) Past economic loss $16,846

(ix) Past superannuation loss $3790

(x) Interest on past economic
& superannuation loss $3263

(xi) Future medical expenses $1522

(xii) Future medication expenses $31,525

$1493

$290,542

Conclusion

239 I make the following orders:

(1) Judgment for the Plaintiff in the sum of $290,542.

**********

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Citations

Thompson v Dr Haasbroek [2010] NSWSC 111

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Woolworths Ltd v Lawlor [2004] NSWCA 209

CITATION:	Thompson v Dr Haasbroek [2010] NSWSC 111
HEARING DATE(S):	16-20/11/09; 23-24/11/09; 27/11/09; 30/11/09 - 4/12/09
JUDGMENT DATE :	29 March 2010
JURISDICTION:	Professional Negligence List
JUDGMENT OF:	Davies J
DECISION:	(1) Judgment for the Plaintiff in the sum of $290,542. (2) The Defendant is to pay the Plaintiff’s costs.
CATCHWORDS:	NEGLIGENCE - medical negligence - general practitioner - failure to detect and diagnose cervical radiculopathy - Plaintiff goes on to develop myelopathy as a result of undiagnosed underlying pathology – underlying pathology not caused or able to be prevented by the Doctor - causation – whether if diagnosed in due time the Plaintiff would have avoided permanent injury - earlier treatment would have avoided some permanent disabilities - multiple causes of Plaintiff's disabilities - assessment of damages where multiple causes.
LEGISLATION CITED:	Civil Liability Act 2002
CATEGORY:	Principal judgment
CASES CITED:	Ren v Mukerjee [1996] ACTSC 119 Woolworths Ltd v Lawlor [2004] NSWCA 209
TEXTS CITED:	A Graham Apley, Concise System of Orthopaedics and Fractures, (1999) Butterworths, England.
PARTIES:	Sandra Thompson (Plaintiff) Dr Johannes Haasbroek (Defendant)
FILE NUMBER(S):	SC 20113/2009
COUNSEL:	D E Graham & AGC Stenhouse (Plaintiff) G B Evans (Defendant)
SOLICITORS:	Maurice Blackburn Lawyers (Plaintiff) TressCox Lawyers (Defendant)