Watson v Kailis
[2008] WADC 95
•3 JULY 2008
WATSON -v- KAILIS [2008] WADC 95
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WADC 95 | |
| Case No: | CIV:2571/2001 | 14-16 MAY 2008 | |
| Coram: | WAGER DCJ | 3/07/08 | |
| PERTH | |||
| 45 | Judgment Part: | 1 of 1 | |
| Result: | Plaintiff's claim against defendant dismissed | ||
| PDF Version |
| Parties: | LINDA WATSON CARY KAILIS |
Catchwords: | Medical negligence Alleged failure to warn of risk of cosmetic procedures and post-operative complications Causation Turns on its own facts |
Legislation: | Nil |
Case References: | F v R (1983) 33 SASR 189 March v E & MH Stramare Pty Ltd (1990) 171 CLR 506 Pollock v Wellington (1996) 15 WAR 1 Rogers v Whitaker (1992) 175 CLR 479 Rosenberg v Percival (2001) 205 CLR 434 Tame v State of New South Wales (2002) 211 CLR 317 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
CARY KAILIS
Defendant
Catchwords:
Medical negligence - Alleged failure to warn of risk of cosmetic procedures and post-operative complications - Causation - Turns on its own facts
Legislation:
Nil
Result:
Plaintiff's claim against defendant dismissed
(Page 2)
Representation:
Counsel:
Plaintiff : Mr P A Monaco
Defendant : Mr P Quinlan
Solicitors:
Plaintiff : Godfrey Virtue
Defendant : Mullins Handcock
Case(s) referred to in judgment(s):
F v R (1983) 33 SASR 189
March v E & MH Stramare Pty Ltd (1990) 171 CLR 506
Pollock v Wellington (1996) 15 WAR 1
Rogers v Whitaker (1992) 175 CLR 479
Rosenberg v Percival (2001) 205 CLR 434
Tame v State of New South Wales (2002) 211 CLR 317
(Page 3)
1 WAGER DCJ: On 31 October 1995 the defendant Dr Cary Kailis performed a trichloroacetic acid peel face ("TCA peel") and carried out laser treatment to the nose and eye area of Ms Linda Watson, the plaintiff. Ms Watson claims that, had she been fully advised of the procedures, the risks and possible outcomes she would not have chosen to undertake the elective cosmetic procedures. She pleads that she was not warned about the severe post-operative pain and discomfort that she subsequently suffered, she was not warned of the nature and extent of the potential risks and complications associated with the treatment and that the defendant failed to refer her to psychological counselling both prior to and after the procedures had been performed in order to address the psychological effects of the treatment. Ms Watson claims that Dr Kailis failed to exercise all reasonable care and skill expected of a specialist in the management of her condition and as a result she has suffered physical pain, marked changes to the eye area and an indentation to her nose. Ms Watson further claims that she has suffered depression and psychological and emotional trauma as a result of the procedures and their outcomes.
2 The defendant Dr Kailis pleads that he exercised reasonable care and skill in treating and advising Ms Watson. She had been advised of the material risks of the procedure and he exercised reasonable care and skill in treating and performing the procedures on her. Dr Kailis claims that the redness and pain that she experienced were normal consequences and that the procedures did not cause any injury to Ms Watson. Dr Kailis further pleads that if Ms Watson did suffer loss or damage, then it was caused or materially contributed to by her pre-existing condition of psychological and emotional trauma and/or her pre-existing addiction to the drug pethidine.
The evidence
The plaintiff Linda Watson
3 Ms Watson who was born on 5 August 1954 had worked as a prostitute, a brothel madam and a manager of an escort agency in the sex industry. She sold her escort agency in 1995, a sale motivated by health reasons. Ms Watson considered that she was "ripped off" in the sale of the escort agency. Ms Watson finally left the sex industry in 1997.
4 It was Ms Watson's belief that she had to look good and smart for her work given the nature of the sex industry that included entertaining, socialising and travel. Her facial appearance, particularly her eyes, was very important to her. In mid 1995 she became concerned about her
(Page 4)
- appearance because frown lines had developed between her eyebrows. Other sex workers had spoken of cosmetic surgery that had been performed by Dr Kailis. Ms Watson spoke at length to a madam who had had cosmetic work carried out by Dr Kailis.
5 In mid 1995 Ms Watson asked her general practitioner, Dr Carr, for a referral to Dr Kailis. Ms Watson states that the referral related to frown lines on her nose, however the wording of the referral actually referred solely to a scar on her nose (Exhibit 5P).
6 As a result of the referral Ms Watson attended Dr Kailis' surgery on 21 August 1995 for a preliminary consultation. At the appointment she asked Dr Kailis about laser and according to her evidence and contrary to the referral asked whether he could do laser just on her frown lines. It is Ms Watson's evidence that Dr Kailis said that he could not perform laser in this way and that he suggested that he perform a full face treatment (TCA peel). Ms Watson says that Dr Kailis suggested that the whole face and neck needed to be treated by a full TCA peel.
7 Ms Watson had injured her nose in a childhood accident and a scar had formed. Previously Dr Turner had carried out surgery to the scar, however she was not happy with the results of the surgery. Subsequent to Dr Turner's surgery but prior to her referral to Dr Kailis Dr Hanrahan performed both a breast reduction operation on Ms Watson and a further surgical procedure on the scar on her nose. She states that she was happy with the result of Dr Hanrahan's surgery on her nose. This evidence is inconsistent with Ms Watson's request to Dr Carr for the initial referral to Dr Kailis.
8 Ms Watson's evidence is that when Dr Kailis suggested that her face and neck be treated she responded as follows:
"Well, I sort of started to ask some questions about how safe and I informed him that I had had surgery – I said 'hey', because he said 'full face and your nose'. I said 'Hey, I've had two surgeries on my nose'. I said 'one a blunder from Dr Turner' and I explained to him that it was a blunder that it didn't – I wasn't happy with it, that it was actually not a good result and that I had the – Dr Hanrahan fixed and repaired the work. So I was very, very concerned and I made a very clear point that my nose could not afford any more mistakes." (T 47)
9 In response to her concerns Ms Watson says that Dr Kailis advised that the TCA laser peel would be applied all over her face and that it
(Page 5)
- would not hurt her nose. She recalls that he said that whatever he would do he would not hurt her nose. He either said he would not hurt her nose or the treatment would not hurt her nose (T 47). Dr Kailis showed Ms Watson photographs of other patients before and after cosmetic surgery. Ms Watson asked Dr Kailis if he was qualified in relation to the laser and also asked if he would perform the same procedure on his wife to which he replied "Of course". Dr Kailis told Ms Watson that the procedure would be carried out under general anaesthetic and that the procedure would go all over her face. He said that a general anaesthetic was required because the whole face was a bigger area and that the process would include the machinery going "tap, tap, tap" very lightly on the surface of the skin.
10 The procedure was to take place at his surgery in West Perth. Dr Kailis gave Ms Watson some information in relation to the likely outcome of the suggested procedure. Her evidence of the information is as follows (T 49):
"So what did he then tell you about the procedure, about being in his surgery? Did he say anything about that? – Yes, he did. He said, you know, like – if I – obvious, before we've – I've really totally agreed, he's told me about the – if I had it or when I have it the face would be red.
Yes? – Slightly redder, a bit red – it varies and then, 'You'll go pink and then form some crusting or scabbing, for a short time – a couple of weeks, whatever'.
Did he say anything to you about pain? – Discomfort, 'There might be a bit of discomfort'.
Did he say for how long? – Just a short – just a few days. It wasn't – yes, I remember it was just a few days. It was just, 'Discomfort, no pain'.
Did he give you an indication how long the redness would last? – Just a few weeks.
What about going pink? – It was all – that the procedure of healing – is it takes a few weeks. Not months or years, a few weeks."
(Page 6)
11 Ms Watson volunteered information in relation to her hepatitis C status and her prior surgical history without being questioned by Dr Kailis.
12 Ms Watson states that photographs of her face prior to the procedure (Exhibits 18.1P-18.3P) were taken at the end of the consultation on 21 August 1995. Although the photographs show Ms Watson holding a plaque bearing the date 31 October 1995 (the date of her procedure) she was emphatic that the photos were actually taken on 21 August 1995. I find that she is mistaken in relation to the date upon which the photographs were taken and that the date is consistent with the date on the plaque held by Ms Watson in the photographs, being 31 October 1995 because there is no logical reason for her to hold an incorrect date. Ms Watson decided to proceed with the cosmetic procedures on the day of the first consultation. She booked a date for surgery and attained a costing.
13 On 18 October 1995 Ms Watson attended Dr Kailis' surgery in order to pay for the treatment in advance of the listed October surgery date. Prior to her attendance she had indicated to Dr Kailis' staff that she did not want a full face laser and the fee for service was accordingly substantially reduced. The reduced figure applied because she had changed her mind in relation to the procedures she elected to have performed. Ms Watson said that she only wanted the TCA peel only because she had learnt that it was two not one [procedures]. She said "I said to the girl 'I'm only having the one – the TCA peel'." (T 52)
14 When Ms Watson attended the surgery on 18 October 1995, Ron, a staff member of Dr Kailis gave her a surgical consent form to complete. The consent form (Exhibit 3P) states:
"I Linda Coyle of 23 King George Street, Victoria Park hereby consent to undergo scar revision nasal/full face TCA peel, laser and elective cosmetic procedure and do hereby acknowledge the following:
1. That this procedure is performed for cosmetic reasons and the result can, therefore, only be assessed subjectively. I therefore understand that while I have been advised as to the probable result, this can in no way be interpreted as a guarantee.
2. That whilst complications from this procedure are uncommon, they do sometimes occur. No guarantees of
- any nature can be made as to the result of this procedure. The complications have been discussed with me in full.
- 3. That there are alternatives to this procedure available such as accepting my present condition.
4. With further complete understanding, as essentially outlined above, I am undergoing treatment of my own volition after a full and complete discussion of the procedure has been had with me personally.
I further understand that pre and post operative photographs may be taken of me and they are the sole property of Dr Cary Kailis and may not be used without my consent.
In the light of the above, I hereby release and agree to hold harmless Dr Cary Kailis and his staff from any claims of any nature arising by virtue of the procedure set out above."
15 Ms Watson acknowledges that she signed the form and wrote her personal details (the name that she was using at the time was Linda Coyle) at the top of the form. The detail of the procedures to be performed is handwritten. Ms Watson's evidence is that she cannot remember whether this portion of the form was completed before she signed it and that she was not encouraged to consider the form. She did not read it.
16 Ms Watson says that as a result of signing the form she understood that she had agreed to a full face TCA peel and also to laser to the face, however she had not agreed to scar revision nasal.
17 On 31 October 1995 Ms Watson attended Dr Kailis' surgery for the procedure. After the procedure she recalls being in a day chair at the West Perth surgery and that her neck was tight, hot, burning and painful. She felt pain over her whole face including her eyelids and her eyes were burning and stinging. When Ms Watson voiced her concerns to a staff member of Dr Kailis she was told to just take some Panadol and that she would be all right.
18 Ms Watson went straight home from the surgery with her eyes shut due to the pain she was suffering. The stinging and burning sensation continued. Once home Ms Watson found taking Panadol to be insufficient for the pain so she rang Dr Kailis' rooms and was effectively told the same advice:
(Page 8)
- "Take some Panadol, don't worry about the stinging. In a few days it will go away … put some Vaseline under the eyes." (T 58)
19 Ms Watson did not use any Vaseline as suggested, however she subsequently rang her general medical practitioner Dr Carr who attended at her home and gave her a shot of pethidine on the night of the procedure. Contrary to Dr Carr's evidence Ms Watson recalls that Dr Carr gave her some Prolodone suppositories as well, the pethidine injections continued twice each day for a couple of days.
20 On 3 November 1995 Ms Watson re-attended Dr Kailis' surgery. When Dr Kailis examined her he said that she was healing nicely. She told him that she was in pain and had received pethidine injections, however he responded "It's coming along fine" (T 59).
21 On 4 November 1995 Ms Watson received injections of pethidine and also used Prolodone suppositories contrary to the prescription of Dr Carr. As a result of her use her daughter thought that she may have overdosed on pain-killers. Ms Watson was taken to the Royal Perth Hospital to be kept under observation. There is no evidence of any treatment being administered.
22 Ms Watson next attended Dr Kailis' rooms on 9 November 1995. She describes that the pain had not subsided and that her face was red and that the top of her eyelids were deep red and were like a blister. She told Dr Kailis that the pain was excruciating and that she had been under observation at Royal Perth Hospital. Ms Watson's evidence is that Dr Kailis replied:
"You're healing nicely. You're coming along on schedule. It's fine, you know, and it'll pass. And some people take a little bit to heal so you'll be fine." (T 62)
23 On 14 November 1995 Ms Watson attended an unscheduled appointment at Dr Kailis' surgery. She describes her cheekbones, temples and eyelids as being beetroot red and she describes the rest of her face and neck as being red with traces of pink. She says that she asked Dr Kailis to look at her face and she told him that it was not good. Her evidence is that Dr Kailis noted that she had some problems and indicated that his wife would help her with the pigmentation. Dr Kailis' wife then used a dozen or so products, cosmetics, to camouflage Ms Watson's face. It was at this time that the "after" photographs (Exhibits 19.1P-19.3P) were taken by Dr Kailis. Despite the application of makeup the specialist doctors
(Page 9)
- who later examined these photographs could clearly assess the results of the procedures from the photographs.
24 On 26 February 1996 Ms Watson attended a standard visit with Dr Kailis. She describes her complexion as being horrible.
"It was all pigmentation by then. It was still red around the eyes. The eyes remained the same – pokers. As if someone had branded me to the eyes." (T 64)
25 She says that at the appointment Dr Kailis told her that some people need another treatment in order to get the best results and that he suggested that she might have another treatment. Ms Watson says that she did not agree to this and that her response was "You can stick that up your Khyber Pass".
26 In January 2000 Ms Watson says that she was still having problems with her face and describes it as "it was still like someone had branded me. That's how I felt. I felt like a branded woman" (T 65). She describes pigmentation around the eyes and notes that the discolouration was worse on the left-hand side. Ms Watson obtained a referral from Dr Chan, general medical practitioner, to Dr Kailis. She told Dr Kailis that she was not happy and Dr Kailis advised her that she could get another treatment. She says that she impolitely indicated that she did not want another treatment, however she purchased fading cream from him on his recommendation at a cost of $40.
Treatments since 1995
27 Over the past 13 years Ms Watson has received numerous facial treatments including micro-current treatment that required the application of electrical current through two prongs on the face and approximately 30 glycolic acid peels from one beautician alone. She was asked in cross-examination (T 11):
"And what have those beauticians explained to you are the long-term risks of the acid peels? – Well, when I went to see the girl they had not given me – they said that they are very safe. They said they are safe because they were doing repair work on my face. In other words, it helps my face."
28 Ms Watson never sought the advice of a doctor to inquire whether the treatments were appropriate because she considered that the beauticians were trained. Although each of the treatments required an
(Page 10)
- application to her face, she did not experience trauma or flashbacks in relation to Dr Kailis' procedure even though she received acid peels that covered her entire face. She describes the glycolic peel as very light. The feeling as a fruit tingle as opposed to a burn.
29 In 2004 Ms Watson approached Dr Fiona Wood in relation to whether further surgery to the scar on her nose was possible. Dr Wood referred Ms Watson to Dr Armstrong, psychiatrist, to determine Ms Watson's psychiatric state before Dr Wood was prepared to proceed to provide advice. Ms Watson attended her appointments with Dr Armstrong, however she did not proceed with Dr Wood. As part of her consultation with Dr Armstrong Ms Watson agreed that she would accept any intervention recommended by Dr Wood's department and that she would accept any risks associated with surgery.
30 In 2002 Ms Watson underwent a sinus operation performed by Mr Grey. She agreed to surgery and underwent surgery without any detailed risk assessment being provided.
Psychological stress since 1995
31 Ms Watson agrees that she has experienced a lot of stress in her life. She had a distressing family background. Her father had been an aggressive alcoholic and this had impacted on her. When she worked in the sex industry she had been the victim of serious attack on two occasions. On one occasion the assailant used a knife and gun to attack her and on the other occasion, in 1984, she had been the victim of a bad incident for which she required treatment at Sir Charles Gairdner Hospital's psychiatric ward.
32 When running Linda's House of Hope, a company to support women working in the sex industry and to oppose the legalisation of brothels, Ms Watson had received abusive telephone calls. In October 2001 two windows of her premises were smashed. She agrees that an intruder had been on the roof of the premises, that someone had set fire to the fence and that a firebomb had exploded in the second House of Hope shelter. On another occasion a rifle had put two holes through a window and the window had been forced from its frame. Personally Ms Watson was the subject of numerous vicious verbal attacks. Ms Watson agrees that each of these incidents had caused stress, however she considers that any psychological symptoms suffered by her in relation to depression or anxiety were directly related to the procedures carried out by Dr Kailis and were not due to any of her life experiences.
(Page 11)
33 In cross-examination Ms Watson also confirms that, through her role at Linda's House of Hope, she had featured on the front cover of magazines in 2003 and had been the subject of a special article in The Australian Women's Weekly in 2003 being the same year in which she was voted Australia's most inspirational woman by the readers of The Australian Women's Weekly. Despite having a very high public profile and disclosing personal details in relation to her past, Ms Watson states that she had no confidence in her appearance or ability to deal with others at the time of the extensive press coverage and despite the accolades she received.
34 Ms Watson acknowledged that on 8 February 2004 she had placed an advertisement in The Sunday Times stating:
"If you have had facial cosmetic laser surgery between 1994 and 2003. If you are dissatisfied with the result or have any concerns please contact Linda." (Exhibit 15P)
35 Ms Watson denies a suggestion that the advertisement was placed in the newspaper as part of another crusading campaign. She states that she placed the advertisement because she wanted girls in the sex industry to come forward in relation to procedures performed by Dr Kailis.
Current physical symptoms
36 At the time of trial Ms Watson describes her current physical symptoms and injuries to be:
(1) a visible white patch on the neck;
(2) her left eye burns. When she closes the left eye it will twitch involuntarily;
(3) her eyes are sensitive particularly the left one;
(4) an indentation on her nose that is more noticeable than it was prior to her treatment by Dr Kailis.
37 Psychologically she describes:
(1) crying, particularly when she looks in the mirror;
(2) that her life has spiralled as a result of the procedure;
(3) that she could not deal with the effects of the procedure and was unable to return to work in the sex industry from 1995 to 1997.
(Page 12)
38 After returning to sex work in 1997 she left the industry approximately a year later because she could not cope with having to deal with people's faces and sometimes she would have to hide or have to hide her nose. Despite significant press coverage to the contrary Ms Watson denies that she left the industry in order to set up Linda's House of Hope and help women in the sex industry.
39 No evidence is led in relation to Ms Watson's appearance after 1996 but prior to 2000. By 2000 Ms Watson had undergone numerous procedures carried out by beauticians and she had experienced the stress and trauma associated with the sex industry and with Linda's House of Hope.
40 When giving evidence Ms Watson was unshakeable in her answers and she did not accept points even when her evidence on occasion was inconsistent with accepted facts (such as that the photographs - Exhibits 18.1P-18.3P - were taken on 21 August 1995 when she was holding a sign dated 31 October 1995 on the date when the photographs were taken).
41 In both examination-in-chief and cross-examination Ms Watson, on a number of occasions, would speak over the questioner and pre-empted the question before it was asked. Even acknowledging that the giving of evidence at trial is very stressful for most people, particularly a plaintiff in Ms Watson's position, her demeanour indicated that she was not listening or responding to the information provided by the Court or by counsel. I consider that Ms Watson had made up her mind prior to giving evidence in relation to the matters that she wanted to raise and was either resistant or unable to process the questions asked and to tailor her answers accordingly.
The defendant – Dr Cary Kailis
42 Dr Kailis, a medical practitioner specialising in cosmetic surgery and procedures, has been a Fellow of the Royal Australian College of Surgeons since 1985 and has practised privately since late 1986. Dr Kailis describes laser as amplified high-intensity light energy that can be used to vaporise tissue. Laser can be used superficially or more aggressively. Dr Kailis completed the induction course in relation to the use of facial therapeutic laser and has been approved by American standards to acquire and use laser equipment. He holds a Radiation Council licence in Australia.
(Page 13)
43 In 1995 Dr Kailis was also trained in the use of acid peels. At that time he used a 25 per cent concentration of trichloroacetic acid (TCA) in a procedure that removed the superficial layers of epidermis of the skin.
44 Dr Kailis has very limited recollection of his dealings with Ms Watson and relied on the clinical notes commencing on 21 August 1995 in relation to the consultations, advice and procedures that he carried out (Exhibits 3.1D-3.8D). The clinical notes from 21 August 1995 record that Ms Watson wanted the scar on her nose revised and that she also asked for further attention to some issues relating to facial ageing. Her history of surgery relevant to the scar on her nose was recorded, that is, Dr Turner and Dr Hanrahan had both carried out procedures to her nose. Ms Watson's hepatitis C condition was also noted. A sketch depicting the scar on Ms Watson's nose accompanied the surgical notes. Dr Kailis had noted "for laser" indicating his advice that laser can improve the scar. He intended to use the laser to "take the corners" off the edge of the nasal scar leading to a flatter appearance. He describes this as a conservative procedure and states that he did not contemplate the use of surgery with a knife. He considered a 20 per cent to 30 per cent improvement in the appearance of the scar could be achieved.
45 Dr Kailis also noted "TCA peel" in the clinical notes in relation to simultaneously addressing Ms Watson's facial skin. A full laser treatment would regenerate the skin. A TCA peel would be less aggressive. The TCA peel carried minimal risks because it was more superficial and it healed in a period of approximately one week.
46 Dr Kailis states that a combination of laser and TCA can be applied at a lower cost than laser alone. The laser could be used on the eyelids and around the eyes to help remove crepey skin, tighten the skin and eliminate crow's feet and wrinkles and the TCA peel could be applied to the remainder of the face up to 1 cm below the chin line.
47 In relation to the TCA procedure Dr Kailis says at T 182:
"… We make no claims that it will remove scars. We make no claims that it will help with the elasticity but it improves the complexion and also helps the step-off from the laser treatment to the non-laser treatment. In other words, if we only did the eye or periorbital area there would be a reddened area as opposed to the untreated area, so if you combine with generalised facial acid peeling and periorbital skin laser the
(Page 14)
- patient actually has an easier recovery with respect to looking better quickly. There is no obvious difference in skin colour."
48 Dr Kailis was asked about his practice in relation to telling patients about expected pain following the procedure (T 204):
"What, in terms of your practice of telling patients how long they could expect pain for, would be your usual advice to a patient concerning pain following a procedure of this kind? – My usual advice with reference to the laser procedure would be to anticipate pain in the order of 12 to 24 hours, diminishing to discomfort for three to five days. With respect to the trichloroacetic acid skin peel I would advise them that the pain is virtually negligible by the time the anaesthetic has worn off, so they can often look forward to waking up after anaesthetic with little or no pain – discomfort at the most – and that is on the same day as the trichloroacetic acid peel."
49 Dr Kailis carried out three applications of laser to Ms Watson's nasal scar but only one application to the eye area. He performed a TCA peel to the face, but he did not treat Ms Watson's neck.
50 The surgical notes indicate that a nurse described by Dr Kailis as qualified and experienced named Ron saw Ms Watson on 3 November 1995 at the first appointment post-procedure. The notes indicate that the nurse gave Ms Watson the all clear. Although Dr Kailis did not see Ms Watson on that date, he anticipates that the laser area would have looked red and that there would be a darkening and peeling to the treated area. Some ooziness in related areas was also expected.
51 The clinical notes from 9 November 1995 record that Ms Watson's progress is good. Dr Kailis explains that this meant that there was no sign of infection. He suggested a repeat peel to Ms Watson to occur in March 1996. No response from Ms Watson in relation to the suggestion of a further peel is noted.
52 Dr Kailis considered that even with the need for camouflage makeup on 14 November 1995 the results of the procedure were good and, consistent with the post-procedure photographs, Ms Watson had an improved complexion, a more even skin texture and reduction of crepey skin around the eyes. Dr Kailis says that the makeup was applied to make the patient feel better and to soften her appearance post-procedure not to hide any bad results from the procedure.
(Page 15)
53 Dr Kailis' clinical notes from 26 February 1996 note that a further treatment was scheduled for Ms Watson for April 1996. No complications arising from the 1995 procedure are recorded in his notes.
54 On 18 January 2000 Dr Kailis provided fading cream to Ms Watson for the eye area in relation to the treatment of pigmentation. Dr Kailis notes that darkening and irregular pigmentation could be seen around the eyes at this time and he considers it was more likely due to fruit acid (glycolic) peels that had been carried out by beauticians since 1995 rather than as a result of the original treatment performed by him in 1995.
55 In cross-examination Dr Kailis denies that he was ever told that Ms Watson was happy with her nasal scar prior to the procedure and that she did not want any treatments applied to her nose. Dr Kailis agrees that there was nothing in his notes at the time of the procedure relating to Ms Watson to indicate that she expected him to perform laser to her eyelids or over her eye area between her eyebrows and under her eyes, however he repeatedly stated that he would not have performed this procedure without her consent.
56 Although the specific details of the advice provided by Dr Kailis to Ms Watson prior to surgery were never raised (either in pleadings or in cross-examination of Ms Watson by the defendant's counsel), Dr Kailis, in cross-examination, states that he is very clear on the information he says he provided to Ms Watson (T 219):
"No. What did you say to Ms Watson? – From recollection, your Honour, I told Ms Watson that this process is the only way to achieve a therapeutic outcome. I would have told her that – in fact I did tell her that she would a short period of pain which would lead to discomfort as the days went on. I told her that she would have ooziness around the lasered areas of the eyes, in the periorbital skin, which would crust if she did not keep it soft and moist with Vaseline or equivalent. I told her that areas of skin that were peeled on the face would first go dark and then after about three to five days the skin would crack and peel but it would be a dry peeling, not a moist peeling. I told her that she should anticipate the skin being healed by one week in both areas. I told her that she would have a variable amount of redness in excess of six weeks in the lasered areas but far less in the areas that that trichloroacidic peel. I told her she should be prepared to either hide or wear camouflage make-up in order to expose herself publicly. I told you that there would be times
(Page 16)
- when the lasered areas and the periorbital skin would flush or go red and that is purely and simply blood vessels dilating and increasing the blood flow to the areas as a very, very late stage of the inflammatory or healing process. I told her that would be less so in the trichloracetic peeled areas. I told her that there would be things that she should avoid on her eyes, in particular astringents, make-up and perfumes with the exception of camouflage because that would produce more redness, and I told her that she should expect to look better and better with time but it does take months for the tissue tightening to ultimately kick in. I told her as well that that is the normal outcome. The adverse outcomes would include infection, which would slow down the healing, which would produce more redness which may lead to scars, and also produce more redness which may lead to scars, and also there would be some temporary increase in pigmentation – not redness but pigmentation – as a result of stimulation of the melanocytes and that would gradually resolve by itself, especially if she avoided sunlight, and I told her that if there was persistent pigment she would need fading cream, and I told her that at 12 months the worst case scenario would be a slight lightening of the skin, if at all.
Anything else? – With respect to the scar, I told her that the scar would improve by 20 to 30 per cent and that I did not want to operate on it with conventional techniques such as a knife because of the thickness of her skin, which obviously from previous procedures was not achieving a desired result."
57 Dr Kailis says that he did not indicate a down side in relation to the nasal scar because in his view there would be no down side to the treatment to the nasal scar.
58 I do not accept that Dr Kailis told Ms Watson about all of the potential risks and outcomes of the procedures. These details are not recorded in his notes and they were never mentioned in totality in his evidence-in-chief. I find that the matters recalled by Ms Watson were raised prior to the procedure, namely that the procedure would result in redness and discomfort for a few days, with crusting and scabbing. The side effects would last for a few weeks.
59 Dr Kailis disagrees with the proposition put (consistent with Dr Hanrahan's evidence) that the nasal scar had deteriorated as a result of
(Page 17)
- the procedure Dr Kailis had carried out. In Dr Kailis' opinion the nose is renowned for producing changes years and years after any intervention. Any alteration to the appearance may be related to the laser treatment or it could be related to earlier treatment by Dr Hanrahan or Dr Turner.
60 In cross-examination in relation to Ms Watson's physical condition post-treatment Dr Kailis did not accept that Ms Watson could not open her eyes at all (T 253):
"Right. You heard the evidence of Dr Carr, did you not? – Yes.
His evidence was that she was unable to open her eyes for five days. Do you want to comment about that? Is that something that she should have expected? – If she found her way into my office on 3 November I am wondering if she couldn't open her eyes how she found her way in, but apart from that …
She came with her daughter, didn't she? – Yes. I don't recall but I would find it difficult that she couldn't open her eyes at all. There may be some difficulty opening them totally.
Dr Carr said her eyelids were very swollen and inflamed? – Normal.
So you would have seen that as a normal outcome from your procedure? – A normal outcome, yes.
Did you tell her that before administering the laser? – I don't recall. I don't recall.
It's certainly not an outcome from the TCA peel? – TCA was not applied to the eyelids.
It can't be that the swelling of the eyes is due to TCA? – If TCA, trichloroacidic acid, is applied to the eyelids it will cause swelling.
I am putting it to you that you have said to us you didn't apply TCA to her eyelids? – That's correct, but you asked me, 'Would TCA make the eyelids swollen?' Yes.
In this case, if Ms Watson has swollen eyelids that's as a direct result of the laser part of the treatment? – That's correct."
(Page 18)
61 He considered swollen and inflamed eyelids to be a normal outcome of the procedure, however contrary to evidence in relation to the advice he gave he could not recall if he had told Ms Watson about this outcome prior to administering the laser treatment.
62 In Dr Kailis' opinion it was most uncommon for a patient to require pethidine subsequent to the first 24 hours following treatment, nor was it normal to continue to experience pain and a burning sensation to the face for a considerable period. Dr Kailis says that if he was told that this outcome had occurred he would have recorded it in his notes. No notes in relation to pain or burning were made.
63 In re-examination Dr Kailis clarifies what he considers to be the balancing act between making a patient feel confident and advising the patient of the risks relating to treatment (T 281):
"… Regardless, I would always advise of risks. Some patients just don't want to know about risks, and others you will tell them the risks and they don't listen, and others will forget. The majority of people, all they want is to trust the doctor - they come on good recommendation – but it is still my duty to inform of the risks and we do so, and that's to cover ourselves."
64 Dr Kailis considers, on review of the photographs of 14 November 1995 (Exhibits 19.1P-19.3P) that Ms Watson was progressing well and there is no evidence of subsequent infection after that date. Dr Kailis notes that the photographs taken on 31 October 1995 prior to the procedures (Exhibits 18.1P-18.3P) show a nasal scar that is worse than the scar depicted in the subsequent photographs of 14 November 1995.
Medical evidence
General practitioners
Dr Carr
65 Dr Carr was Ms Watson's general medical practitioner from 21 June 1993 until 19 April 1997.
66 By letter dated 26 July 1995 Dr Carr referred Ms Watson at her request to Dr Kailis. He did not know Dr Kailis personally, however he knew that there was a Dr Kailis who did a certain amount of plastic surgery especially on noses. The referral refers to a scar on Ms Watson's nose: "Please advise as to whether it can be improved. Thanks" (Exhibit 3.5D).
(Page 19)
67 Dr Carr confirms that the referral was worded in this way because he made the referral to Dr Kailis specifically in relation to Ms Watson's nose. She had told Dr Carr that the scar had been caused by a cut from glass sustained many years earlier. The referral did not relate to frown lines on the forehead or positioned between the nose (as Ms Watson states in her evidence).
68 Dr Carr was able to vividly remember the scar the subject of the initial referral and states (T 99):
"I remember it vividly. It was very well healed. I didn't think it was a problem but she obviously did. It was about a centimetre long. It was vertical (indicates left-hand side of nose towards bottom of the nose)."
69 Dr Carr has no experience with cosmetic procedures such as TCA peel or laser surgery. He accepts that he saw Ms Watson at her home address on 31 October 1995 and that she was not able to open her eyes for five days thereafter. He notes that he was very concerned for her.
70 Dr Carr provided twice daily injections of pethidine for pain relief to Ms Watson from 31 October 1995 until 4 November 1995, being a four day period. He then prescribed Prolodone suppositories (he assumed approximately 10) because he considered that it was inappropriate to prescribe further pethidine after the four day period. There was no overlap in the provision of the pain-killers.
71 Dr Carr was unable to comment on whether the symptoms he observed were consistent with the treatment performed because he had no specific knowledge of the treatment. Surgical notes and related reports do not assist Dr Carr to recall the period of time over which the bruising and pain persisted following surgery, but his clinical notes would confirm that Ms Watson was definitely not treated at his surgery after 23 July 1996.
72 A colleague from his surgery provided a medical certificate to Ms Watson on 5 February 1996 that was extended to 13 March 1996 in relation to Ms Watson's inability to work because of her appearance. According to medical notes the certificate was not provided in relation to any pain suffered by Ms Watson.
73 In clinical notes recorded from 1 to 4 November 1995 Dr Carr's colleague Dr Forward had written "dreadful face" and "no real sign of infection".
(Page 20)
74 After 4 November 1995 the clinical notes record Ms Watson's complaints as a problem with her gall bladder and in February 1996 Ms Watson obtained pethidine as a result of a complaint relating to her gall bladder. A further entry on 13 February 1996 states: "Has cirrhosis/hep B, pain right UQ" (T 103).
75 Dr Carr confirms that the note related to pain to the upper quadrant. This complaint was totally unrelated to Ms Watson's face. She was provided with pethidine for the gall bladder complaint but there was no provision of pethidine for her face after 4 November 1995.
76 A referral to Dr Steinberg, a general and laparoscopic surgeon, was made on 20 February 1996 and related to the gall bladder problem.
77 Following the procedure relevant to the gall bladder Dr Steinberg expressed concern that Ms Watson had presented herself to Sir Charles Gairdner Hospital and Kalamunda Hospital demanding pethidine. His letter also stated that Ms Watson had asked for pethidine at St John of God Hospital at Subiaco. Dr Carr had also encountered Ms Watson requesting an analgesia such as pethidine and other strong analgesia on other occasions. The medical notes relating to Ms Watson's attendances in 1997 refer to "migraine and wants pethidine" on 17 April 1997, the notation "migraine, wants morphine. Refused" is noted. Dr Carr recalls that there was a telephone call to him at one time from Ms Watson when he refused to give treatment to Ms Watson in relation to narcotics for migraines.
78 Dr Carr agrees with the proposition that some people respond to stimuli and experience pain differently. "Very much so" he said (T 101). Despite suggestions and reports that Ms Watson was addicted to prescribed medications there is no evidence from which the inference can be drawn that Ms Watson was addicted to pethidine at the time of the procedures. I accept Dr Carr's evidence that he prescribed pethidine in November 1995 in response to Ms Watson's complaint about the pain and condition of her face following the procedure.
79 Dr Carr confirms that Ms Watson sought to enlist his assistance in relation to her claim against Dr Kailis. Dr Carr decided that he would not see Ms Watson once she raised the claim and advised that she could not come back until the matter relating to Dr Kailis was settled.
80 Ms Watson also provided unsolicited material to Dr Carr by letter dated 21 November 2002 under cover of a letter indicating that the attached information may be helpful to Dr Carr for her medical report in
(Page 21)
- respect of her claim against Dr Kailis. He also received a facsimile from Ms Watson dated 20 April 2004 containing correspondence relating to laser treatment. Ms Watson did not see Dr Carr from 19 April 1997 until 2000. Dr Carr presented as an objective and a professional witness whose evidence was not affected by any material provided to him.
Dr Chan
Dr Hanrahan
82 Dr Hanrahan, retired plastic surgeon, gave evidence on 2 April 2008. He had seen Ms Watson on 20 December 2002 and prepared a report on that date (Exhibit 1P).
83 Dr Hanrahan confirms that he had surgically operated on a scar on Ms Watson's nose prior to Dr Kailis' laser treatment, however he did not have access to the relevant notes and could not recall precisely when the procedure had been performed. In relation to the condition of the nose in 2002 he stated:
"The vertical scar on the nose and the surrounding skin on the left side of her nose was depressed producing a noticeable contour deformity on the left side of her nose."
84 In evidence he explained that this meant that (T 7):
"She had a scar there and there was an indentation adjacent to the scar. Laser treatment is a burn and burn changes the nature of the skin – usually reduces the thickness of the dermis which is the deeper layer of the skin. So if the skin has been damaged, there is a chance that it will become thinner than the surrounding areas which haven't been lasered hence we will get a depression."
(Page 22)
85 Dr Hanrahan referred specifically to Ms Watson and the general thickness of the skin being reduced in the area of the nasal scar. At T 8:
"Can I put it to you is there any other possibility other than the laser treatment (leading to this result)? - No, the scar that she had before the laser treatment was very well healed. There was no infection at the time so there was no damage to surrounding skin. In that situation one would not expect some thinning out or damage to the skin around the scar and therefore the contour shouldn't be altered. Something has changed to alter the contour because … because it made a contour deformity."
86 Dr Hanrahan did not see Ms Watson after the assessment in December 2002.
87 Although Dr Hanrahan was aware of skin peel procedures, he did not apply them himself because he considered them to be unpredictable. He made it very clear that he did not approve of laser treatment and that he was unimpressed by Dr Kailis' use of laser treatment. Dr Hanrahan assumed that Ms Watson had undergone a full face laser treatment. Dr Hanrahan confirmed that on 20 December 2002 Ms Watson advised that her face was very red, swollen and painful after the treatment or on the night after the treatment. He considered that this outcome was predictable and to be expected following treatment. This evidence is of limited weight because the redness described was experienced by Ms Watson in areas that had been the subject of laser treatment (the eyes) and also areas that had been the subject of TCA peel only (the cheek).
88 In relation to the advice of Dr Kailis' staff to use Vaseline post-procedure Dr Hanrahan stated that the use of Vaseline tends to keep the wound moist rather than letting it dry out but that it would probably not have any impact on the pain itself.
89 Dr Hanrahan confirmed that a change of pigmentation can follow laser treatment, however he was not so sure in relation to a TCA peel.
90 Dr Hanrahan considered that the effect of the TCA peel would be from not much change at all to the appearance of the skin to a waste of time. However, in relation to the effects of laser treatment he states at T 10:
"In terms of the nature of this treatment, that is the use of laser and TCA where you say there are – there is a process of burning of the skin how much information should be given to someone
(Page 23)
- about to undergo that sort of treatment? - In particular they need to be advised about what the positive effects can be but equally they need to be advised about what the possible alternative effects are and particularly change in the nature of the skin and particularly pigmentation and redness and loss of pigmentation.
And anything else? - In the early stages they certainly need to be advised that it will be painful and they won't be looking too good for a few weeks because of redness and sometimes weeping and not looking very good.
…
Yes, and what other consequences might there be if there was long term effects of a negative outcome or a less than satisfactory outcome? - Well, I think people are always pretty aware if their face has been altered in a way that they feel inferior or concerned about their appearance."
91 Dr Hanrahan agreed with Professor Marshall's proposition that the injury from laser treatment would have to be a reasonable depth in order to lead to significant changes. There is no evidence that the procedures to Ms Watson's face were of a significant depth.
92 In Dr Hanrahan's opinion a warning in relation to unpredictable pigmentation changes, the nature of the skin and redness should be given to a patient prior to laser treatment because it is a common result. Although Dr Hanrahan considered a prospective patient could speak with a general medical practitioner or obtain another opinion from a specialist prior to undergoing treatment he personally had not referred patients to a psychologist prior to treatment.
Dr Gebauer
93 Dr Gebauer is a practising consultant dermatologist who has been a Fellow of the College of Dermatologists since January 1986. In his role as a dermatologist Dr Gebauer deals with all things to do with skin, hair and nails. His qualifications include the use of laser in dermatology which is a procedure he has recommended but that he does not perform himself.
94 Dr Gebauer provided a report on Ms Watson's condition in response to a request from the defendant's solicitors dated 25 November 2002 in relation to the TCA peel and laser surgery and in respect of the contents of photographs taken by Dr Kailis of Ms Watson pre and post-operatively
(Page 24)
- (Exhibit 6.1D). Dr Gebauer's assessment of the post-operative photographs of Ms Watson taken on 14 November 1995 (Exhibits 19.1P-19.3P) is that there is some mild residual erythema which would be entirely normal after a chemical peel and laser resurfacing two weeks earlier. There is no evidence of hyper-pigmentation or areas of exudate. He describes no evidence of periorbital oedema or swelling of the periorbital folds being shown in the post-operative photographs. If the patient had a severe outcome Dr Gebauer would expect to see at least some swelling. He confirms that his conclusion is not affected by the fact that the plaintiff had makeup applied before the post-operative photographs were taken. It is commonplace for women who consult dermatologists to wear makeup. Dr Gebauer states that he can very clearly see the pores and follicular openings and blemishes through the makeup and that makeup would not conceal an injury. The results are normal.
95 Dr Gebauer describes the TCA peel process with which he is familiar as being a superficial procedure. He considers that if there is any significant damage to the bottom layer of the skin the melanocytes or pigment cells would stop producing pigment so that the patient's skin would show a white patch. This sometimes occurs where laser damage has damaged the melanocytes. Depigmentation or loss of pigmentation results from damage to the lower layer of the skin. Increase in pigmentation occurs from irritation and will generally disappear in approximately six months because it is a temporary phenomenon.
96 Dr Gebauer states that to get ongoing residual pain the patient would have to experience damage to the nerve roots and this depth of damage would not occur with a superficial process such as a TCA peel.
97 Dr Gebauer also confirms that laser treatment to a nasal scar is not a treatment to the scar itself. He describes it as a burr down the edge of the scar tissue. The deeper the edge is burred the more successful the procedure will be in improving the appearance of the scar because the scar will be flatter (T 288).
98 Dr Gebauer confirms that he examined Ms Watson on 19 April 2004 and provided the defendant's solicitors with a report following the review (Exhibit 6.2D). On examination Ms Watson showed no evidence of periorbital scarring but she had a small seborrhoeic keratosis (blemish) at the outer corner of the eye. He considers that this was an age-related blemish. Dr Gebauer notes minor thickening and pigmentation and thickening as seen with lichen simplex chronicus (thickened skin), a
(Page 25)
- chronic form of eczema often attributed to the rubbing of the skin. He noticed redness occurring on Ms Watson's face which is a sign of low grade inflammation. The redness can occur as a result of drinking coffee, entering into a warm room, drinking alcohol or becoming emotional. Dr Gebauer did not find any evidence of any perforation of the skin to the point where it would irritate a nerve or cause permanent damage to Ms Watson. He concludes that Ms Watson has a skin tone, complexion and appearance consistent with her 49 years.
99 In cross-examination he agrees that contrary to his report he could not comment on the discussion or level of advice between Dr Kailis and Ms Watson prior to the procedure. He also confirms that the level of pain experienced is dependent on the subjective threshold of pain for an individual. It was his experience in relation to patients following laser and/or TCA peel that a burning sensation is quite normal and that it may take some weeks, even months in some cases to settle.
100 Dr Gebauer confirms that if a patient received 22 fruit acid peels between 2000 and 2001 (the number and nature of beauty treatments he accepted was received by Ms Watson) then there could be cosmetic benefits in the short term, but if the patient experiences some sensitivity to the peels then there could be low grade irritation. The low grade irritation itself could stimulate the melanocytes to increase their pigmentation. Even with an allergy a person may continue to receive peels and be unaware of the damage caused by the allergy. Dr Gebauer compared the process to the repeated licking of the lips that regularly occurs when the lips are dry – a process that simply aggravates the condition of the lips. Similarly, just because the sensation may feel good does not necessarily mean that it is good for a patient to receive numerous glycolic peels. Dr Gebauer confirms that potentially in the short term for a limited period dark skin would show some pigmentation after an irritant event, however the pigmentation would not be permanent.
Professor Marshall
101 Although Professor Marshall was not called as a witness in the trial his report was put to Dr Hanrahan in the course of Dr Hanrahan's evidence and the report was subsequently tendered as an exhibit with the consent of both parties (Exhibit 2.3D). In the report dated 5 March 2003 Professor Marshall's opinion in relation to the depth of the procedure performed is consistent with the evidence of the other medical specialists. Specifically:
"It is not possible to determine whether the pigmentation or redness of the skin around the eyes is due to the effects of the
(Page 26)
- TCA peel and laser therapy rather than other factors. It is known that a resurfacing procedure can produce irregular pigmentation, however that can also occur without any obvious cause."
102 Professor Marshall also stated that:
"For the laser resurfacing to be responsible for the pigmentation it would require the injury to have been of a reasonable depth."
103 Professor Marshall referred to the photographs of Ms Watson taken approximately two weeks after the procedure (Exhibits 19.1P-19.3P):
"The photographs taken on 14 November 1995 showed very little evidence of the laser resurfacing done two weeks before. There is a small amount of redness at the medial aspect of the eyelids, but apart from this there was little evidence of the recent operation."
104 Professor Marshall clarifies that even if coloured skin lotion was applied before the photographs were taken on 14 November 1995 the photographs would suggest that the laser resurfacing was relatively superficial.
105 Professor Marshall, however, noted in relation to existing pigmentation (par 9):
"In my experience laser resurfacing may increase the likelihood of pigmentation where there is already a small degree of pigmentation present. The resulting pigmentation is relatively unpredictable but more commonly affects patients with pigmented skin and in such circumstances this treatment would not be advised …"
106 And par 10:
"TCA peel and laser treatment is appropriate in cases where there is already a small degree of pigmentation. Patients however should be warned of further pigmentation as this can occur in an unpredictable manner."
(Page 27)
Psychological evidence
Ms Calalesina
107 Maria Calalesina, a psychologist and member of the Australian Psychological Society, assessed Ms Watson for a period of 90 minutes on 22 November 2006 in order to provide a report (Exhibit 21P). She describes the process by which she conducted her consultation as follows (T 157):
"… It's a general assessment, questions that we use in clinical diagnosis based on my experience and looking and observing the person, their body language and their general demeanour during the interview, and making observations throughout and getting an assessment of their mental health at the time and then from there using some other techniques making some sort of diagnosis of what might be the problem."
108 Prior to giving evidence but during the course of the trial Ms Calalesina's evidence was objected to by counsel for the defendant. It was submitted that as a psychologist she did not have the expertise to make a psychiatric diagnosis of Ms Watson of post-traumatic stress disorder and further, that Ms Calalesina's opinion was not founded on the facts of the case.
109 In evidence Ms Calalesina says that the factual foundation for her assessment was based on Ms Watson's self report and on Dr Carr's medical reports. The number and nature of Dr Carr's reports considered by her was not specified, however Dr Carr in his evidence referred to a number of reports, the contents of each being quite similar. Dr Carr also noted that he had made mistakes in his report in relation to the length of time over which Ms Watson was prescribed pethidine.
110 In evidence Ms Calalesina confirmed the factual foundation upon which she based her assessment and from which she drew her conclusions. The factual foundation included facts that were inconsistent with the evidence being that:
(1) The opinion of Dr Kailis was sought in relation to a slight forehead/nasal line scar that had resulted from a childhood accident. The evidence of Dr Carr was the referral itself was in relation to a nasal line scar only.
(2) Dr Kailis had advised Ms Watson to have a full face laser procedure (full chemical face peel), implying this was the
- procedure she had had. Dr Kailis' evidence and his clinical notes indicate that this was not the procedure ultimately agreed.
- (3) Ms Watson had carried out research before the procedure. Ms Watson's evidence was that this was not the case.
(4) Ms Watson was taken to Royal Perth Hospital for post-operative emergency treatment. On her own evidence Ms Watson was taken to Royal Perth Hospital because of a suspected overdose of pain-killers.
(5) Ms Watson was given pethidine and later Prolodone for pain relief over several weeks post-operatively. Dr Carr clarified that this period was four days in respect of pethidine and that approximately 10 Prolodone were prescribed in total.
(6) Dr Kailis advised her to use creams some weeks after the procedure. Apart from reference to Vaseline, there is no evidence that advice to use creams was received or given.
(7) Ms Calalesina states that Dr Carr expressed an opinion in relation to the post-operative progress of Ms Watson. Dr Carr states that he was unfamiliar with cosmetic procedures and therefore could not comment on what was normal or appropriate.
(8) Hospital reports stated that Ms Watson's eyes were very swollen. There are no hospital reports provided in relation to Ms Watson in evidence.
(9) Dr Carr saw Ms Watson very regularly and reported on her situation on a regular basis. Dr Carr's evidence was that he did not see her in relation to her face after January 1996.
(10) Ms Watson had been reviewed by several doctors who encouraged her to have treatment to the scarring. The evidence does not support this proposition.
(11) Ms Watson was reviewed by several doctors at the time of the procedure. The evidence does not support this proposition.
111 Ms Calalesina's report refers to the oral history provided to her by Ms Watson on 22 November 2006. The following facts and symptoms are unsupported by Ms Watson's evidence:
(b) The nature of the treatment
152 The treatment performed was an elective cosmetic procedure using laser treatment and a chemical peel that did not involve surgery in the sense of a knife cutting the skin, however it was not disputed that a general anaesthetic was required and therefore that the procedure was of some significance.
153 Ms Watson's initial referral to Dr Kailis from Dr Carr, initiated at her request, related to the scar on her nose. At the time of requesting the referral Ms Watson had already undergone two surgical procedures to her nose. Dr Kailis' clinical notes in relation to the initial consultation refer to laser treatment to the scar on the nose and include a diagram illustrating the scar. It is Ms Watson's evidence that she sought an assurance that her nose would be fine and that she received an assurance. Despite signing a consent form that included scar revision nasal, Ms Watson states that she did not consent to the procedure. It is Ms Watson's evidence that she agreed to some laser and a TCA peel, however she did not agree to scar revision on her nose. Given that this was the sole reason cited for her
(Page 39)
- referral to Dr Kailis in the first place and the unchallenged assurances given by Dr Kailis I find that at the time the procedure commenced she did intend to undergo some nasal scar revision. Her history, motivation, discussion with doctors and the clinical notes of Dr Kailis are consistent with Ms Watson seeking and agreeing to scar revision on 31 October 1995 and consenting to the procedure. I find that she was aware that the nasal scar revision was to be carried out and that she consented to it.
154 Ms Watson also agreed to a TCA peel to her face and partial laser treatment. Ms Watson refers to a burning sensation to the neck and a subsequent white patch on her neck, however there is no evidence that she received any treatment to her neck beyond 1 centimetre below the chin line.
155 There is no evidence of a deep treatment consistent with the formation of a white patch nor do I accept that any of the procedures extended beyond 1 centimetre below the faceline.
156 I find that the treatment received by her was a full face TCA peel to 1 centimetre below the chin line, laser treatment to the entire eye area and to the bridge of the nose and repeated laser treatment to the edges of skin surrounding the scar on her nose as has been described by Dr Kailis in his evidence. I find that Ms Watson agreed to all three procedures carried out on 31 October 1995.
(c) The desire of the patient for information
157 Ms Watson had undergone three cosmetic procedures prior to 1995 being two surgical revisions to the scar on her nose and a breast reduction. Ms Watson sought referral to Dr Kailis because other women working in the sex industry had recommended him and had had work performed by him. Dr Carr who made the initial referral did not know Dr Kailis and was unaware of the details of cosmetic procedures. Accordingly, the referral was initiated and motivated by Ms Watson.
158 At the initial referral with Dr Kailis Ms Watson was the one who raised the topic of laser. Despite Ms Watson's evidence that she did not understand that TCA and laser were two separate procedures she agreed to book in and undergo the procedures on the date of the initial consultation. Ms Watson later changed her mind and requested the TCA peel only together with some laser. I conclude from Ms Watson's subsequent negotiation in relation to the reduction of the laser treatment prior to 31 October 1995 that she was aware that laser and TCA were two separate and distinct procedures.
(Page 40)
159 I have had the opportunity to assess Ms Watson's demeanour when giving evidence. When giving evidence Ms Watson spoke loudly and quickly. Ms Watson spoke over the questioner (be it her own counsel, counsel for the defendant or the Judge) on a number of occasions. The lengthy answers that she gave were, on occasion, unrelated to the question that had just been asked. Her response at times required counsel to ask the question on a second occasion. It is Ms Watson's evidence that she is now under-confident about speaking in public and that she does not present in the same confident manner that she did in 1995 prior to the procedures. Factoring this into Ms Watson's demeanour I consider that she would have spoken at length to Dr Kailis at the initial consultation in 1995, however she may not have made it clear that she did not fully understand the information that was provided to her by him at the time.
160 Since 1995 Ms Watson has undergone surgery relating to a sinus problem, exploratory investigations in relation to her gall bladder and numerous cosmetic treatments through beauticians. Ms Watson has not sought information in relation to any of these procedures over and above the "nuts and bolts" of what is involved in the procedure.
161 I find that Ms Watson's approach to obtaining information prior to the procedure on 31 October 1995 was probably similar to her approach prior to subsequent procedures and treatments in that she sought basic information in relation to the procedures but did not ask detailed questions or actively seek any other opinions from other specialists, medical practitioners or beauticians prior to undergoing treatments.
(d) The temperament and health of the patient
162 Although Ms Watson states that she had sold her business in 1995 for health reasons, there is no evidence that she was in poor health prior to the procedure nor of the nature of the alleged health problem. Ms Watson's evidence is that, prior to the procedures, her presentation and demeanour was consistent with being confident and outgoing despite her history of life traumas including being the victim of serious assaults and having, in the past, required treatment at the Sir Charles Gairdner Hospital psychiatric ward for the injuries she sustained in an assault. Ms Watson's unchallenged evidence is that she wanted to look attractive for her work in the sex industry and that she entertained guests, travelled and socialised. Ms Watson's evidence was given in a confident and forthright manner consistent with her being a person who would initiate conversation and provide information. On her own evidence Ms Watson states that she voluntarily provided information in relation to her hepatitis C status to Dr Kailis at the initial consultation and that Dr Kailis had not asked
(Page 41)
- questions to elicit this response. Although there is evidence from which I conclude that Ms Watson may have prevaricated about the precise nature of the treatment that she chose to undergo, I am satisfied that she was confident and capable of making a decision in relation to her own treatment.
163 It is argued that Ms Watson should have been referred to a psychologist prior to Dr Kailis carrying out the procedure. Dr Hanrahan's evidence is that if a patient does not understand the procedure then it is better not to do anything. His evidence was not consistent with a referral to a psychologist in a situation where a patient was not clear on a procedure. Dr Armstrong who is a very experienced psychiatrist had limited experience of referrals in relation to a psychiatric assessment prior to cosmetic surgery. I find that a referral to a psychologist prior to cosmetic surgery was not a routine practice and only occurred in exceptional circumstances. There is no evidence to indicate that Ms Watson had any psychological or psychiatric problems relevant to cosmetic surgery prior to the procedure that would warrant a referral to a psychologist or a psychiatrist.
164 Although Ms Watson changed her mind in relation to the details of the procedures, I am satisfied that she understood the nature of all three procedures that were performed on 31 October 1995.
(e) The general surrounding circumstances
Psychiatric and psychological effects of the procedures
165 Ms Watson states that she has suffered from depression and anxiety and that she has been under-confident and distressed to such an extent that she cries when she looks in the mirror. She chooses not to deal with people in the way that she did prior to the procedures. Ms Watson is emphatic is that her life stresses and distress although significant prior to the procedures due to her distressing childhood, her experiences in the sex industry and being the victim of crime on two occasions one of which resulted in her requiring treatment as a psychiatric inpatient, together with her escalating stresses and anxieties since setting up Linda's House of Hope did not cause or contribute to the symptoms of stress and anxiety that she currently experiences. Ms Watson attributes the symptoms solely to the procedures carried out by Dr Kailis in relation to the pain she suffered and the distress she now feels in respect of her appearance.
166 I accept the evidence of both Dr Proud and Dr Armstrong in relation to Ms Watson's psychiatric condition. I prefer the evidence of
(Page 42)
- Dr Armstrong because his initial assessment of Ms Watson was totally unrelated to her legal claim and was therefore, in my view, the more objective analysis. Dr Armstrong concluded that Ms Watson did not suffer from a psychiatric illness. The fact that Ms Watson had had a very difficult personal life and had triumphed over difficulties that conflicted with her crusading work however led Dr Armstrong to the belief that Ms Watson probably had a number of unresolved issues emanating from her past that would need to be dealt with in terms of building self-esteem and self-confidence. The issues referred to by Dr Armstrong preceded or are unrelated to the procedures carried out by Dr Kailis in 1995. The anxiety, depression, lack of self-confidence and low self-esteem noted by Dr Armstrong did not extend to a diagnosis of post-traumatic stress disorder nor to any other anxiety disorder. Dr Armstrong links a degree of diminished sense of self-esteem suffered by Ms Watson and the possibility that a person who feels diminished may become anxious to her history of dealings with Dr Kailis. Dr Armstrong considers that the patient/doctor interaction was not satisfactory from Ms Watson's point of view and that she felt that her sense of self was diminished and she was upset about it. He concludes that for Ms Watson this distress was very much a real thing. Dr Armstrong's assessment and conclusion is consistent with Dr Kailis failing to communicate appropriately with Ms Watson, however it does not extend to a failure on his part to provide her with the information that he was required to give prior to the procedure.
What effect did the failure to warn Ms Watson of potential pigmentation changes have on her decision to undergo the procedures?
168 I am also satisfied that a cosmetic surgeon would be aware that an attractive patient who is not obviously disfigured in any way would attach significance to a potential outcome that would affect her facial appearance.
169 I am, however, not satisfied that Ms Watson would not have proceeded with the procedure had she been warned of this material risk. Ms Watson was told that there would be discomfort and that there would be redness, pinkness, oozing and scabbing. Nevertheless Ms Watson chose to proceed with the procedure.
(Page 43)
170 After the procedure Ms Watson voluntarily took part in numerous beauty treatments that required applications to her face and, on occasions, the use of electricity without seeking medical advice in relation to any potentially adverse effects of the treatments to her skin condition. Ms Watson underwent subsequent surgery without seeking a second opinion or questioning her medical advice. Ms Watson initiated the referral and subsequent contacts with Dr Kailis. She sought the initial referral after receiving advice from colleagues in relation to Dr Kailis' skill and positive results. She had undergone cosmetic procedures on three prior occasions and had proceeded on two prior occasions despite purporting to be unhappy with the first result. I find that even if Dr Kailis told her that a change in pigmentation was possible or likely and he had ensured that she understood this, she would still have chosen to proceed with the procedure.
Did the procedure cause Ms Watson's redness and pigmentation – the causal connection?
171 The "but for" test applies to determine whether there was a direct causal connection between Dr Kailis' conduct and the physical symptoms suffered by Ms Watson: March v E & MH Stramare Pty Ltd (1990) 171 CLR 506.
172 Ms Watson describes ongoing pigmentation around the eyes and notes that the discolouration is worse on the left-hand side. Her left eye burns and she claims it will twitch involuntarily. Her left eye is particularly sensitive.
173 Dr Kailis' clinical notes from 1995 to 1996 do not record these symptoms, however that does not mean that Ms Watson did not suffer from them. The inference could be drawn that Ms Watson did not refer to the symptoms when consulting Dr Kailis post-procedure, however an inference could also be drawn from the fact that Dr Kailis did not record these symptoms in his notes that he chose not to record the complaints and that he provided little empathy to Ms Watson fuelling her distress and dissatisfaction.
174 The medical notes of Dr Carr, general medical practitioner, do not refer to the prescription of pain-killers in relation to pain suffered by Ms Watson to her face after November 1995. Although morphine is prescribed by Dr Carr or his colleagues to Ms Watson on a number of occasions after November 1995, the diagnoses linked to the prescriptions do not relate to Ms Watson's face or to Dr Kailis' procedures at all. Dr Carr's clinical notes refer to a medical certificate in relation to
(Page 44)
- Ms Watson's physical appearance being issued to Ms Watson in early 1996 in order to excuse her from work. This is the last independent reference in relation to her appearance until she is examined in 2000.
175 In 2000 Ms Watson is referred by Dr Chan to Dr Kailis in relation to the redness and pigmentation issues that she describes. Dr Kailis confirms that pigmentation and redness is present and recommends and sells cream to Ms Watson at a cost of $40. Dr Kailis does not accept that the discolouration seen by him in 2000 was related to the procedures carried out in 1995 in any way and attributes the pigmentation to beauticians' treatments performed on Ms Watson in the intervening years.
176 In 2002 Dr Hanrahan examines Ms Watson and notes the redness to areas of her face. Specifically he notes (par 1 p 2, report 20/12/2002, Exhibit 1P):
"She states that after the redness which lasted several years the skin on her face has become irregularly pigmented and that marks have reappeared on her cheeks and eyebrow region. This alteration of pigmentation varies from side to side of her face."
177 Dr Hanrahan confirmed that on examination the patchy pigmentation varied from the right to the left. Dr Hanrahan attributed the patchy pigmentation to the laser treatment performed by Dr Kailis in 1995. Dr Hanrahan's opinion is based on the incorrect factual foundation that Ms Watson had a full face laser treatment in 1995. The fact that he describes the same patchy pigmentation appearing on areas that were treated by laser as had also appeared on areas treated by the TCA peel, a procedure that he did not consider would have any significant effect, compromises his opinion in relation to the causation of the pigmentation.
178 Professor Marshall in his report dated 5 March 2003 stated:
"It is not possible to determine whether the pigmentation and redness of the skin around the eyes is due to the effects of the TCA peel and laser therapy, rather than other factors. It is known that any resurfacing procedure particularly involving the deeper layers of the skin can produce irregular pigmentation. Such pigmentation, however, can also occur without any obvious cause. As it is now over seven years since the procedure the effects of aging and alteration and hormone levels could be argued to be a factor. One can neither prove nor disprove this."
(Page 45)
179 Professor Marshall's additional assessment that the resurfacing procedure carried out by Dr Kailis on Ms Watson did not involve the deeper layers of the skin (an assessment accepted by Dr Hanrahan and Dr Gebauer), does not support her contention that the change in pigmentation is due to the procedures carried out in 1995.
180 Dr Gebauer, who examined Ms Watson in 2004, is of the opinion that Ms Watson showed no evidence of periorbital scarring but had an age related blemish on the outer corner of her eye. He noted minor thickening pigmentation, a chronic form of eczema often attributed to rubbing the skin and noticed redness occurring on Ms Watson's face consistent with low grade inflammation. In Dr Gebauer's opinion irritation to the skin that does not damage the melanocytes may lead to an increase in pigmentation, however it would generally disappear approximately six months after the irritation and would be a temporary phenomenon. Dr Gebauer considers that a number of fruit acid peels received by Ms Watson between 2000 and 2001 may cause low grade irritation if the patient experiences some sensitivity and that this could stimulate the melanocytes to increase their pigmentation.
181 Given the number of beauty treatments that Ms Watson has received and the time that has elapsed since the procedures were carried out by Dr Kailis I find that the "but for" test has not been satisfied. I accept that Ms Watson has experienced pigmentation, redness and soreness to the eyes, however I am not satisfied that this was caused or contributed to by the procedures carried out by Dr Kailis in 1995.
182 Accordingly, I am not satisfied that Dr Kailis was negligent in his conduct and treatment of Ms Watson, nor am I satisfied that he was in breach of any contract entered into with her. I dismiss the plaintiff's claim.
0
7
1