Zaltron v Raptis and Benveniste No. DCCIV-94-507

ZALTRON V RAPTIS AND BENVENISTE
[2000] SADC 86

Judge Noblet
Civil

Claim, Defence and Issues

The plaintiff claims against the defendants damages for negligence together with interest and costs.
The plaintiff’s particulars of negligence are poorly set out, unduly repetitious and, at times, very difficult to follow. As I understand the particulars, the plaintiff alleges that the defendants:
·.. failed to warn the plaintiff of risks associated with surgery.
·.. failed to diagnose correctly the plaintiff’s condition following an angiogram.
·.. failed to seek an opinion from a specialist radiologist in respect of the angiogram.
·.. failed to advise the plaintiff of alternative treatment that could have been carried out in the circumstances presented to the defendants by the angiogram.
·.. failed to carry out treatment promptly after the nature of the plaintiff’s condition was revealed by the angiogram.
·.. failed to advise the plaintiff that she should contact the defendant if her symptoms became worse before the date scheduled for the surgery.
·.. carried out treatment that was not appropriate in the circumstances or was not properly performed or completed.
·.. failed to exercise reasonable care in the treatment of the plaintiff.
·.. caused injuries to the plaintiff which could have been avoided by the use of greater care and skill.
The plaintiff’s claim originally was made against the first defendant only. She claims that she was unaware that the second defendant had assisted with the operation until the time limit for commencing proceedings against him had expired. She therefore seeks an extension of time in which to institute proceedings against the second defendant.
Counsel for the plaintiff conceded at trial that there was no obligation on the second defendant, who was engaged as an assistant to the first defendant, to warn the plaintiff about the risks of surgery or to advise the plaintiff about possible alternative methods of treatment. However, those claims stand as far as the first defendant is concerned.
The joint defence filed by the defendants consists mainly of denials of the allegations made by the plaintiff. They claim that appropriate warnings and advice were given to the plaintiff, that their diagnosis was correct, that the treatment given to the plaintiff was appropriate for her condition, that all reasonable care was exercised in the treatment of the plaintiff and that the plaintiff’s morbid obesity (she weighed about 130 kg) restricted the options available for surgery.
It seems to me that the issues in this case, as far as liability is concerned, may be stated as follows:
·.. Should the plaintiff be given an extension of time in which to initiate the proceedings against the second defendant?
·.. Did the first defendant appropriately warn the plaintiff about the risks associated with surgery generally and, in particular, about the risks involved in the type of surgery proposed?
·.. Did the first defendant fail to advise the plaintiff of alternative treatment that could have been carried out and, if so, was he negligent in failing to do so?
·.. Did the defendants correctly diagnose the nature of the lesion that was revealed by the angiogram?
·.. Was there an unreasonably long delay between diagnosis and treatment?
·.. Was the treatment selected by the defendants reasonable and appropriate?
·.. Was their treatment carried out with due care and skill?

Chronology of Events

On 28 May 1991 the plaintiff presented to the Casualty Department of the Royal Adelaide Hospital complaining of intermittent pain in her right foot and small toe and ankle and extending to her calf and shin. This had been going on for some months (t185, t186, t190). She was at that time 36 years of age. She was (and is) grossly obese, weighing about 130 kg. She had smoked cigarettes (about one packet per day) since her teenage years (and still does). She claimed that her pains were made worse by walking 100 metres or so but improved with a few minutes rest. This intermittent pain on walking and easing on rest is known as claudication. The Doppler Index for her left leg was 1.0 (normal) but for her right leg was 0.72. The Doppler Index is a method of quantifying the severity of arterial disease. A small probe which sends out a beam of ultrasound is placed over the superficial artery and a signal from that artery is obtained. A cuff is then placed on the leg and blown up until the sound of the arterial signal disappears, then the pressure in the cuff is gradually reduced until the signal returns. The systolic blood pressure is then recorded and the index is calculated. This index is the ratio of the pressure in the ankle to the pressure in the arm.
On 4 June 1991 Dr Raptis (the first defendant) carried out an angiogram at Ashford Hospital, assisted by Dr Benveniste (the second defendant). The angiogram revealed that the aorta, iliac arteries and the common femoral, superficial femoral and profunda arteries were all normal. However, at the popliteal artery on the right side, just above the knee joint, there was a large filling defect which was producing ninety-nine percent stenosis of the popliteal artery at this level. The differential diagnosis by Dr Raptis was that the cause of the stenosis could be atherosclerosis, cystic degeneration of the popliteal artery, or abnormal medial head of gastrocnemius (also known as entrapment syndrome).
When the plaintiff returned to the hospital ward after the angiogram, it was noted that her large and smallest toe on her right foot were blue and painful. The plaintiff remained in hospital over night. The hospital notes entered on 5 June 1991 record that the plaintiff had an unsettled night and could not sleep due to pain in her right foot. The foot was checked and the notes record “CWMS all good although no pedal pulse present”. CWMS is apparently a standard abbreviation for observations of colour, warmth, movement and sensation.
On 5 June 1991, the plaintiff was discharged. She was then re-admitted on 12 June 1991 for surgery. Dr Raptis had arranged for Dr Benveniste to assist him with the operation. He had also arranged for Dr Kerry O’Connell, an anaesthetist with considerable experience in vascular surgery, to anaesthetise the plaintiff.
Surgery was carried out on 13 June 1991. I set out below the operation report prepared on the same day by Dr Raptis (together with some explanations in square brackets of some of the medical terminology).
“The right superficial femoral artery was exposed through a horizontal groin incision. An arteriotomy [a hole in the artery] was made and a guide-wire passed down and visualised under x-ray image intensifier and passed through the lesion at the knee joint to the popliteal artery below. We then introduced a sheath and a dilator and did an angiogram through the sheath and this revealed that the occlusion had extended and was probably the reason for the more severe ischaemia. We then passed a balloon angioplasty catheter, size 7 French over the guide-wire and through the lesion. This dilated up nicely but follow up angiography films failed to show that the artery had become patent [ie it remained occluded].
We therefore abandoned this procedure and anastomosed [opened the artery and joined the graft to it] 6 millimetre Gortex graft to the superficial femoral artery above and to the popliteal using 6.0 Prolene. We then went into the popliteal artery below the knee joint and exposed it. This was a very small popliteal artery the size of a tibial vessel. We opened it and attempted to pass a Foggerty catheter up and it wouldn’t go. We therefore anastomosed the graft distally to the popliteal artery. We attempted to let the graft go [ie undid the clamps], we noticed that the graft had thrombosed [had no blood flow]. We therefore opened the graft and performed a thrombectomy [a procedure to remove a clot], passing Foggerty catheters up and down the graft. Good down flow and back flow was achieved. We then closed the arteriotomy [the hole made for passing the catheter and extracting clots] in the graft and took a picture of the distal anastomosis. This revealed a beautiful anastomosis with the graft running off into three vessels distally. The leg appeared to pink up, haemastasis [bleeding] was secured, two redivac drains were inserted [to drain off any bleeding after the wounds were closed]. The wound was closed with clips. The patient was commenced on Heparin [a substance which prevents collagulation of the blood], 750 units hourly. During the operation she was given 5000 units of Heparin and 2 grams of Kefalin.”
Although not mentioned in this report, Dr Raptis said in evidence that he and Dr Benveniste had exposed and examined the saphenous vein but had considered it unsuitable for grafting.
The nursing notes made immediately after recovery of the plaintiff included the following: “Patient recovered following general anaesthetic for right popliteal atherectomy/by-pass. Leg appeared bluish when reaching recovery - leg was ischaemic before operation.”
On 20 June 1991 a further angiogram was performed by Dr Anderson. It revealed that the proximal anastomosis was functioning satisfactorily and the graft was patent throughout its length and contained only minimum thrombosis. The mature superficial femoral artery was occluded. There was a stenosis at the junction of the graft and the popliteal artery reducing the luminal diameter by sixty percent. There was no evidence of distal embolisation or thrombosis as far down as the ankle joint. Images of the vascular supply to the toes were not obtained.
The plaintiff’s condition appears to have deteriorated after the operation despite the patency of the by-pass graft. In a report to her general practitioner on 22 June 1991, Dr Raptis said this:
“We performed a femoro popliteal graft on Mrs Zaltron. There have been considerable problems in her post operative stage. Despite the graft being patent, the ischaemia in her leg has become worse and it appears as though she has got a distal capillary sludging problem. She also has cellulitis in the leg. We performed a duplex scan which revealed that the graft was patent and a Doppler study revealed that the Doppler Index was 90% of normal.
Despite this, the leg appeared to be getting worse and we did an arteriogram which indicated that the arterial reconstruction was satisfactory. The patient continued to deteriorate and I asked Justin Miller to see the leg. [Dr Justin Miller was, at that time, regarded as the most eminent vascular surgeon in South Australia]. At this stage he feels that we ought to hang on in an effort to save her leg although at this stage the leg is looking rather sick in that there is very poor capillary circulation and gross cellulitis. The patient was originally on Kefalin and Flagyl and has been changed to a different antibiotic, one of the newer, synthetic antibiotics.
The patient is currently fully anti-coagulated but her biggest problem is that she is in intensive care with a pneumonia and may be developing acute respiratory distress syndrome and we may have further problems and have to consider amputating the leg.”
On the same day the plaintiff was seen by Dr Skowronski, who was then the Director of the Intensive Care Unit at Ashford Hospital. He noted that the plaintiff suffered from continuing severe pain and gradually worsening ischaemia of the foot. His view was that if the plaintiff did not make a marked improvement within 24 - 48 hours, amputation of the leg would have to be seriously considered despite Dr Justin Miller’s opinion to the contrary.
On 22 June 1991 the plaintiff was transferred to the Royal Adelaide Hospital at her request. Apart from the problems with her right foot, she was suffering from respiratory failure secondary to pneumonia and adult respiratory distress syndrome, and she had a temperature of 38.6 degrees. By 8 July 1991, it was noted that her fourth and fifth toes on her right foot appeared to be infected. These toes were well demarcated, indicating that they would eventually separate from the foot of their own accord. These two toes were amputated on 10 July 1991. On 16 July 1991, it was noted that the third right toe had some gangrene which had demarcated. A further surgical amputation and debridement was carried out.
On 26 July 1991 the plaintiff was discharged from hospital, with her dressings to be examined and changed when necessary by a district nurse. Dr Raptis did not see her again after her discharge.
In November 1991, the plaintiff was examined by Dr Anderson. On 3 December 1991 he carried out an angiogram at Ashford Hospital and found that the plaintiff had a blocked femoral artery in her right lower limb and that the by-pass graft previously performed by Dr Raptis and Dr Benveniste had also blocked. On 12 December 1991, Dr Anderson carried out further by-pass grafting to alleviate the problem of lack of circulation in the right foot. By July 1992, this graft had also failed. An attempt was made to restore patency to the graft by using urokinase therapy. This procedure involves using a drug in an attempt to dissolve clots which have formed in blood vessels. Unfortunately, this procedure also failed.
The problem with the plaintiff’s circulation eventually righted itself by the process known as collateral flow. Dr Anderson explained the process this way:
“There are two arteries in the leg. One supplies the thigh and the other transits through the thigh to supply the calf without giving much blood to the thigh itself. So if one thinks of that artery, that is really like an irrigation hose going to an irrigation system, which are the vessels in the calf itself. That was the artery, the so-called superficial femoral artery that had become blocked as a result of the previous problems that Mrs Zaltron had had. The second artery in the leg which supplies the thigh is a deep artery, and in certain circumstances that artery may grow branches which will communicate with the remnants of the irrigation system, and she had shown a tendency to develop quite good connections from the deeper femoral artery to the remnants of the irrigation system, and we term that ‘collateral flow’. What, therefore, happened is that during that period of lack of blood supply to the leg, that she had really saved her own leg by developing collateral flow, and the two bypass grafts probably bought her time to do that.”
The plaintiff continues to have problems with her right leg - mainly cellulitis, dermatitis and chronically infected ulcers - but there is no suggestion on the evidence that these are related to her circulation problems in 1991, nor to the treatment given by the defendants.

Medical Witnesses

The plaintiff called Professor Faris, who was head of the vascular surgery unit at the Royal Adelaide Hospital in 1991 and was later professor of surgery at Geelong Hospital; Dr Anderson, a vascular surgeon who is also a qualified interventional radiologist; Dr Reece, who is an interventional radiologist; Dr Doyle, a general surgeon with emphasis on vascular surgery; Dr Lovelock, a vascular surgeon; and Dr Hoare, a general surgeon.
I simply cannot accept the evidence of Dr Hoare where it is inconsistent with that of other medical experts with far greater experience and expertise in vascular surgery. Dr Hoare admitted (t567) that he was not an expert vascular surgeon, that vascular surgery was not a special interest of his, that he had never performed an angiogram or angioplasty and was not able to explain, step by step, what is involved in these procedures, that he might have been involved in three arterial vascular cases in the last 25 years, and that he had not done a lot to keep abreast of changes in vascular surgery over the last 25 years.
I also found it difficult to accept some of the evidence of Dr Doyle. Originally he said that if he was looking at the angiogram taken on 4 June 1991, his next step would have been to take the films and show them to people that he regarded as being very knowledgeable in the area, including vascular surgeons and radiologists (t436). At this stage he did not seem entirely clear as to what the diagnosis should be from the angiogram. Later, under cross-examination (t474) he looked at the same angiogram picture and said “I believe that that x-ray on the left is classical of an adventitial cystic lesion, because I believe I can see the cyst. ...... I can see the cyst. There it is” (pointing to the x-ray). His reasons for diagnosing a popliteal cyst were unconvincing compared to those of other experts.
I reject the evidence of Dr Doyle regarding the preference for a direct approach to the lesion in the plaintiff’s artery. Dr Doyle said that even if he had diagnosed an adventitial cyst, then he would have cut into the leg and exposed the artery and confirmed his diagnosis by actually seeing and feeling the cyst (t441). I prefer the evidence of other surgeons that it is preferable, particularly with a grossly obese patient, to adopt the least invasive procedure. As long as one knows the extent of the lesion, it is not necessary to ascertain the type of lesion before performing a bypass graft. Dr Doyle admitted (t442) that if, after exposing the artery, he found that the disease process was more extensive than he had thought, he would have had to use a bypass graft. I found his evidence as to the ability and desirability of performing an interposition graft to be most unconvincing. I prefer the evidence of other specialists about the difficulties involved in a direct approach to the lesion. The substance of their evidence was that a medial approach would require division of tendons and ligaments in the area of the knee, which would be likely to result in an unstable knee joint; a posterior approach would be fraught with danger because of the plaintiff’s gross obesity - she would be face down on the operating table with a risk of difficulty in ventilating and possible respiratory arrest (see, in particular, Professor Lord at t1265, 1298 and 1300 - 1302, Professor Thomson at t729 and Dr Raptis at t868).
By far the most convincing of the plaintiff’s medical witnesses was Dr Anderson. He was also very highly qualified and respected by his peers. His answers to questions were clear and concise and his explanations were easy to follow. He was a very impressive witness.
The defendants called Dr Taylor, presently the senior interventional radiologist of the Radiology Department of the Royal Adelaide Hospital; Professor Thomson, the head of interventional radiology at the Royal Melbourne Hospital; Professor Lord, who is a professor of surgery at the University of New South Wales and head of the vascular surgery unit at St Vincents Hospital in Sydney; Dr Walsh, who is the Director of the Vascular Surgery Unit at the Flinders Medical Centre and who has been treating the plaintiff since May 1999; and the defendants Dr Raptis and Dr Benveniste. Reports were tendered by Dr Skowronski and Dr O’Connell, but they were not called. Doctors Lord, Taylor and Thomson were all highly experienced in their respective fields and their evidence and explanations were clear, concise and compelling.

Extension of Time for Claim Against Second Defendant

The particulars of the plea by the plaintiff pursuant to section 48 of the Limitation of Actions Act 1936 are as follows:
“On or about the 25th day of September 1996 the plaintiff saw for the first time a further report by the said Glen L. Benveniste dated the 15th day of August 1996. On the day as a result of reading the report the plaintiff learned that the fact of the matter was that:-
(i).... the said Glen L. Benveniste assisted the first defendant with the angiogram referred to in paragraph 7(a) hereof;
(ii)the said Glen L. Benveniste was in agreement with the first defendant that the diagnosis was artherosclerosis resulting in a localised almost total occlusion of the plaintiff’s popliteal artery and that an angioplasty was indicated and that a percutaneous approach was precluded;
(iii).. that the said Glen L. Benveniste assisted the first defendant in the operating theatre to perform the treatment referred to in paragraph 7(a) hereof.
The plaintiff claims that it is just in all the circumstances of this case for the extension of time to be granted.”

Placita (i) and (iii) are inconsistent with the evidence given by the plaintiff in this action. She was asked by her counsel whether she had any discussions with Dr Benveniste before the angiogram on 4 June 1991. Her reply was (t61 line 35) “No, all I can remember is that he introduced himself and that he was assisting. That’s really all I can remember”. A little later she was asked whether she had spoken to Dr Benveniste after the angiogram. Her reply was that the only times she had seen him were before the angiogram and before the angioplasty. Later she said that just before the attempted angioplasty, Dr Benvensite “introduced himself and said he was assisting Dr Raptis again” (t70).
As to placitum (ii), I do not consider that the matters referred to therein comprise facts material to the plaintiff’s case. “A fact is material to the plaintiff’s case if it is both relevant to the issues to be proved if the plaintiff is to succeed in obtaining an award of damages sufficient to justify bringing the action and is of sufficient importance to be likely to have a bearing on the case” (Solar Optical (Australia) Pty Ltd v Mills (1987) 163 CLR 628 at 636). I do not consider that the matters referred to in placitum (ii) meet either of those criteria. The plaintiff’s treating doctor was Dr Raptis. The final decisions as to diagnosis and treatment were his responsibility. Dr Benveniste was acting as an assistant. If Dr Benveniste happened to agree with Dr Raptis about the diagnosis and treatment, that is not relevant to the issues to be proved and is not of sufficient importance to be likely to have a bearing on the case. If Dr Benveniste had disagreed with Dr Raptis, then he could still have assisted Dr Raptis notwithstanding the difference of opinion.
For these reasons I am not satisfied that in all the circumstances of the case it is just to grant the extension of time. The plaintiff’s claim against Dr Benveniste is therefore dismissed.

Duty of Care

In Rogers v Whitaker (1992) 109 ALR 625 at 628, the High Court (Mason CJ, Brennan, Dawson, Toohey and McHugh JJ) said:
“The law imposes on a medical practitioner a duty to exercise reasonable care and skill in the provision of professional advice and treatment. That duty is a ‘single comprehensive duty covering all the ways in which a doctor is called upon to exercise his skill and judgment’: (Sidaway v The Board of Governors of Bethlem Royal Hospital [1985] AC 871 per Lord Diplock at 893): It extends to the examination, diagnosis and treatment of the patient and the provision of information in an appropriate case (Gover v South Australia (1985) 39 SASR 543 at 551). It is, of course, necessary to give content to the duty in the given case.
The standard of reasonable care and skill required is that of the ordinary skilled person exercising and professing to have that special skill.”
In the case from which I have just quoted, the High Court approved the approach of King CJ in F v R (1983) 33 SASR 189 in relation to the duty of disclosure. His Honour said this at page 192:
“What a careful and responsible doctor would disclose depends upon the circumstances. The relevant circumstances include the nature of the matter to be disclosed, the nature of the treatment, the desire of the patient for information, the temperament and health of the patient, and the general surrounding circumstances. ....
The purpose of disclosure is to provide the patient with the information necessary to enable him to make informed decisions concerning his future and, in particular, whether to undergo proposed treatment. The duty extends, therefore, only to matters which might influence the decisions of a reasonable person in the situation of the patient. A risk of harm or of failure might be so slight in relation to the consequences of not undergoing the proposed treatment that no reasonable person would be influenced by it. The duty to disclose does not extend to such a risk. ..... A doctor is not expected to spend an inordinate amount of time conjuring up fanciful fears in the mind of the patient by stressing risks which are not sufficiently substantial to be a factor in the decision making of a reasonable person.
The more drastic the proposed intervention in the patient’s physical make-up, the more necessary it is to keep him fully informed as to the risks and likely consequences of the intervention. ....
The governing consideration is the right of every human being to make the decisions which affect his own life and welfare and to determine the risks which he is willing to undertake. The presumption is clearly in favour of disclosure of the information which is relevant to the making of a decision. But a doctor is not required to inflict on his patients information which they do not seek and do not want. Many people are prepared to place themselves in the hands of their doctors and to leave all decisions to them. Such people would be burdened unnecessarily and unwillingly with information about the risks involved in contemplated treatment. What is required is reasonable care on the part of the doctor in exercising a judgment as to the real wishes of his patient in relation to receiving information relating to risks. ....
(At page 193) Even when all other considerations indicate full disclosure of risks, a doctor is justified in withholding information, and in particular refraining from volunteering information, when he judges on reasonable grounds that the patient’s health, physical or mental, might be seriously harmed by the information.”
In Rogers v Whitaker (above) the High Court declined to follow what had become known as the Bolam principle, namely that a doctor is not negligent if he acts in accordance with a practice accepted at the time as proper by a responsible body of medical opinion even though other doctors adopt a different practice. The Court preferred the approaches of King CJ in F v R (above) and of Lord Scarman in his dissenting judgment in Sidaway (above). His Lordship said (at 876):
“In my view the question whether or not the omission to warn constitutes a breach of the doctor’s duty of care towards his patient is to be determined not exclusively by reference to the current state of responsible and competent professional opinion and practice at the time, though both are, of course, relevant considerations, but by the court’s view as to whether the doctor in advising his patient gave the consideration which the law requires him to give to the right of the patient to make up her own mind in the light of the relevant information whether or not she would accept the treatment which she proposes.”

Disclosure and Advice

The plaintiff’s evidence regarding what Dr Raptis said to her before the angiogram on 4 June 1991 and the operation on 13 June 1991 was extremely vague, which is hardly surprising in view of the gap of almost nine years between those events and the trial. She said (t58) that Dr Raptis told her she had to have an angiogram. She knew what an angiogram was because she knew people who had had them before. She told him that she wasn’t keen on going into hospital but he told her that she really did not have any choice because otherwise there was a possibility that she might lose her leg. It seems that, after having been told that, she put herself in the hands of her specialist. There is no evidence that she expressed any concerns or asked any questions, or that she would not have had the operation if she had been given a full explanation of every possible risk that may arise. Nor has the plaintiff convinced me that there were any particular risks that should have been explained but were not, or any alternative procedures that should have been offered but were not. She must have decided that any risk involved in having the operation was outweighed by the possible consequence of not having it. She said (t63) that after the angiogram Dr Raptis told her that she would have to have an angioplasty which, she said, “was the balloon thing, they were going to put that in and blow the balloon up and if it cleared that was good and if that didn’t work they would excise the clot, cut it out”. She was asked whether this was said to her before or after the angiogram on 4 June 1991. She said that she really couldn’t say but she thought Dr Raptis said this to her while she was at the Royal Adelaide Hospital. Of course, that doesn’t make any sense because at that stage she had not had the angiogram and therefore there had not been any diagnosis by Dr Raptis. The plaintiff did not remember any discussion with Dr Raptis about bypass surgery. Her only recollection was that “he was going to do the balloon, and if the balloon didn’t work, he would excise the clot” (t63).
Dr Raptis denied telling her that he might have to excise a clot. He pointed out that he never used the word ‘clot’ in any of his correspondence or notes. He may have told her that she had a blockage. As to the time and place when this was discussed he said:
“There wouldn’t have been a discussion at the Adelaide Hospital because at the Adelaide Hospital I didn’t know what was wrong with her. It would have been at Ashford if we had any discussions. I probably did say to her that we were going to do a balloon and I did say to her - I did warn her that the balloon may not work, but I didn’t say that I was going to excise a clot. There’s no such way. I said that she would need an operation, alright. I may have said an endarterectomy, because that’s what I was intending to do, and I was going to remove the plaque, and, don’t forget, plaque is a mixture of atheroma and clot, but I probably said something and, in all fairness, I am not accusing her of mistruths or anything, it’s just the way that she’s construed something, and I think - I know what I said, and I think she may well have misconstrued what I said.”
Dr Raptis was asked whether it was his practice at the time to give a warning to a patient about the possibility of small arteries and veins being affected in some way by the procedures that he intended to undertake. His answer was: “No, because it had never occurred to me before, I had - always gave a warning that people with this disease had the possibility of facing an amputation”(t983). However, he did warn the plaintiff that “the outlook for [her] leg was precarious” (t907).
Of course, Dr Raptis did not have a clear recollection of exactly what he said to the plaintiff any more than did the plaintiff. However, he was able to say that he had developed a standard practice over the years as to what to say to patients who presented with the same type of problem as the plaintiff had and he gave his evidence based on that practice because there was no reason why he would have departed from it on this occasion. The transcript records the following:

(Page 846)
<03>             Q. Can you tell his Honour, in your own words, what
<04>                 happened when you went to see her [after the angiogram]?
<05>             A. Your Honour, I can't remember exactly because it's so
<06>                 long. I can just tell you what my normal practice
<07>                 would have been, which I do with all my patients, and
<08>                 it hasn't changed before, then, or after, is that I
<09>                 would have gone and discussed the result with her
<10>                 angiogram - about her angiogram with her, I would have
<11>                 probably told her that she had a lesion behind the knee
<12>                 joint and that we could either do an angioplasty, which
<13>                 was a local - a small procedure, and I'm saying it to
<14>                 you in lay terms, and that if that worked, she'd
<15>                 probably be out of hospital the next day, and that if
<16>                 it didn't work, then she would require an operation to
<17>                 fix it, which would mean that she'd be in hospital a
<18>                 longer period of time. I probably would have told her
<19>                 that it was serious and I probably would have said it
<20>                 would be good for her to go home and think about it, to
<21>                 see whether or not she wants to go ahead with the
<22>                 procedure.
<23>             Q. Would it accord with your normal practice for you to
<24>                 have explained the benefits to her to have undertaken a
<25>                 balloon angioplasty as opposed to more drastic surgery?
<26>             A. Because of her risk factors, I would have mentioned it.
<27>             Q. In accordance with that practice, what would you have
<28>                 told her?
<29>             A. I would have told her that her size was a problem,
<30>                 whatever we did, both as far as performing the
<31>                 procedure is concerned and as far as the post-operative
<32>                 care of her condition was concerned.
<33>             Q. At that point in time, was the possibility of an
<34>                 endarterectomy in your mind?
<35>             A. It was.
<36>             Q. What do you mean by 'endarterectomy'?
<37>             A. That is a direct approach to the lesion from the medial
<38>                 side of the leg to expose the artery, to open the
(Page 847)
<01>                 artery up, and to - in lay terms, to core the lesion
<02>                 out, to return the artery back to normal size and then
<03>                 to close it.
<04>             Q. Why was that in your mind at that time?
<05>             A. It seemed attractive that it might be a small lesion
<06>                 and might have longer - might give a better long-term
<07>                 result than anything else.
  ......
<20>             Q. Would it have accorded with your practice for you to
<21>                 mention to the patient, if a graft was necessary, what
<22>                 you'd use for the graft and how you'd go about it, in
<23>                 brief terms?
<24>             A. I'm not sure that I did in this case. I may have, I
<25>                 may not have because you have to understand that I was
<26>                 probably thinking more of doing an endarterectomy and I
<27>                 was probably hoping, more than anything, that the
<28>                 angioplasty would work and that we wouldn't have to do
<29>                 anything and probably said that some operative
<30>                 procedure was necessary, probably mentioned an
<31>                 endarterectomy; whether I mentioned a bypass or not I
<32>                 can't remember, and again, as to how much detail I went
<33>                 into these procedures, I'm not sure.

And in cross-examination:
(Page 1077)
<27>             Q. Could I take it that in terms of the angioplasty
<28>                 procedure, you probably would have mentioned that
<29>                 involved inflating a balloon inside Mrs Zaltron's
<30>                 artery?
<31>             A. I probably would, but, you know, I have no recollection
<32>                 of the conversation, so you could say whatever you
<33>                 like, but I can't prove it or disprove it.
<34>             Q. I appreciate the difficulty for you because you don't
<35>                 specifically recall, and your evidence has been based
<36>                 on your practice
<37>             A. Right.
<38>             Q. I'm asking you to, as best you can, consider what that
(Page 1078)
<01>                 practice would have been in 1991, and I appreciate the
<02>                 difficulties there, but Mrs Zaltron appears to have
<03>                 indicated that there was some reference to inflating
<04>                 the balloon, and that seems to be borne out by the
<05>                 hospital notes.
<06>             A. I don't have a problem with that.
<07>             Q. You wouldn't have gone into any more detail about the
<08>                 nature of the procedure, I take it?
<09>              A. I wouldn't have gone into any technical detail, that's
<10>                 for sure.
<11>             Q. You wouldn't have dealt with issues like distal
<12>                 embolisation or the possibility of thrombus and any
<13>                 complications associated with those processes?
<14>             A. No, other than to tell her, to warn her that there was
<15>                 a possibility it wouldn't work.
<16>             Q. You would have put that to her in terms of: 'If the
<17>                 procedure doesn't work, then we just get on and do the
<18>                 further surgical procedure'.
<19>             A. Yes, but I did warn her that it might not work.
<20>             Q. That meant simply in terms of what you think you would
<21>                 have conveyed to her saying that would then mean a
<22>                 further procedure; isn't that right.
<23>             A. Yes, I think that's fair.
<24>             Q. Not that it wouldn't work and have serious
<25>                 repercussions for you if it didn't work.
<26>             A. I never imagined it would have serious repercussions.
  ......
<37>             Q. It's fair to say that you really had in mind at that
<38>                 time that you would probably have to go on and do a
(Page 1079)
<01>                 further surgical procedure because, on balance, that
<02>                 was likely to be needed.
<03>             A. I think the fact that I warned her that we might have
<04>                 to go on and the fact that - my concern was giving her
<05>                 two anaesthetics in a hurry because of her obesity and
<06>                 her smoking and I felt that if we were going to do a
<07>                 cut down, do an angioplasty and it didn't work, then it
<08>                 was better to go straight on and do the second
<09>                 procedure because she was obese. If the cut down wound
<10>                 broke down and became infected, then there was no way
<11>                 that we could go on and do another procedure for
<12>                 several weeks, and maybe even months, so it was really
<13>                 - I felt it was optimising what was best for her and
<14>                 optimising what was best for us.
  ......
<30>             Q. They are the sorts of issues I presume you wouldn't
<31>                 have gone into with Mrs Zaltron; it would be more a
<32>                 case of just referring to the two procedures, and if
<33>                 one doesn't work, we'll proceed to the other.
<34>             A. I think it was a bit - slightly different to that. I
<35>                 think there was a warning that the easier procedure was
<36>                 more attractive in that if it gave an immediate good
<37>                 result, that was it, that was all over and done with,
<38>                 and warned her that it may not work, and then we would
(Page 1080)
<01>                 have to do an operation which was less attractive, both
<02>                 for her and for me.

There was no credible evidence as to alternative treatment that Dr Raptis might have carried out and about which the plaintiff should have been advised. As I have said, I am unable to accept the evidence of Dr Doyle in this respect.
The plaintiff has not established on the balance of probabilities that Dr Raptis failed to comply with a duty to warn her of risks associated with surgery or to advise her of alternative treatment.

Diagnosis

Dr Raptis considered that, of the three possibilities in his differential diagnosis, atherosclerosis, or an atheromatous plaque, was by far the most likely. The primary basis for this opinion was the appearance of the lesion as shown by the angiogram. Dr Raptis said (t838):
“I thought that because there was a horizontal cut-off and shelf below, and I thought that there was an atheromatous mass sitting above this, bulging into the lumen of the artery and narrowing the lumen of the artery. Furthermore, in the lateral picture I felt that this was consistent with an atheromatous plaque lining the wall of the vessel. The shelf is still present there. And I thought one of the problems is there’s a large collateral that’s running across, but if you could subtract that out of your mind and imagine it is not there, one can just see a trickle of blood through an atheromatous plaque, and to my mind of thinking, that this was almost certainly an atheromatous plaque.”

Other factors that he took into account were the extreme rarity of adventitial cystic disease, particularly among women, the plaintiff’s gross obesity, and her long history of cigarette smoking.
Dr Anderson was approached by Dr Benveniste in a very informal way to look at the film from the angiogram. He agreed that he was at a disadvantage because he knew nothing about the clinical history of the plaintiff. Based only on the angiogram film, he diagnosed a popliteal adventitial cyst. However, in the course of his evidence he was shown another film of a CT scan carried out on 26 August 1991. Looking at the “slice” at the position of the lesion, he said “This particular slice here, 162, does not show a cystic lesion in the popliteal fossa” (t617). Later he said (t637) “I really must say, in all honesty, .... I think we will never know truly what this lesion was. It’s a filling defect on an angiogram and, as I have explained, what we are looking at is essentially a column of radio-opaque contrast, or dye, that shows up on x-ray film, and we can only infer as to what it actually is.”
Dr Reece also diagnosed adventitial cystic disease from an examination of the angiogram film. He said in his report dated 7 January 1993: “The radiological appearances of the popliteal artery (namely extrinsic narrowing and medial deviation), the age of the patient and the relatively normal vessels elsewhere suggested the diagnosis of adventitial cystic disease of the popliteal artery possibly combined with a popliteal cyst. A CT or MR scan would have been of value to assess the size of the cyst.” However, when shown the film of the subsequent CT scans, he agreed that there was nothing to suggest that the blockage seen in the stenosed area on the angiogram was a cyst (t420).
Professor Faris agreed with the diagnosis of Dr Reece. When he was shown the CT scan films during the course of his evidence, he said: “I wouldn’t really claim expertise in interpreting these because of the rarity with which we are looking for the condition” (t508). However, he said later (t571) that the lack of evidence of a popliteal cyst in the CT scan, although not conclusive, would argue against the presence of a popliteal cyst.
Professor Lord prepared an extremely detailed report of some nine pages on 9 October 1996. His summaries of the various hospital notes indicate his close attention to detail and his careful examination of all relevant factors. In his report, Professor Lord was less positive than some of the other doctors and did not postulate a specific diagnosis. He said that the nature of the abnormality was uncertain because the segment of popliteal artery had not been directly examined at operation or histologically. He went on to say that
“following inflation of the balloon and deflation, the artery returned to its original shape. This is consistent with compression from an external source, for example a popliteal cyst. The inflation of the balloon may have distended the artery but not corrected the condition which returned on deflation of the balloon. This observation is also consistent with an adventitial cyst which was compressed but remained intact and resumed its normal shape following deflation of the balloon. The pre-operative appearances are also consistent with atheroma or with embolisation, both of which justified attempted balloon dilatation.”
However, when shown the CT scan films during the course of his evidence, he said: “If there was a cyst there it should .... be visible on this film and on this scan and on other scans. I cannot see any evidence of either cystic adventitial disease, or of a popliteal cyst, or of any anatomical abnormality.” (t1237). Later (t1253) he said that the most likely explanation for the filling defect shown in the angiogram was an atheromatous plaque.
Dr Lovelock was also cautious about the diagnosis. He said in his report dated 14 February 2000:
“The diagnosis of cystic adventitial disease is one where a high degree of awareness is needed in order to make the diagnosis, as it is a most uncommon presentation. The angiogram does give the impression that there may have been outside compression of the artery, but if there had been other evidence of atherosclerosis throughout the vessels, then a diagnosis of atherosclerosis caused occlusion would also be justified.”
He concluded that an exact diagnosis was difficult to make based on the angiogram findings alone. However, he concluded that outside compression of the artery, such as cystic adventitial disease, would be high on the list as a cause of the plaintiff’s symptoms. However, after he was shown the CT scan films (t544) he, too, considered that the most likely radiological diagnosis was atheromatous plaque.
Dr Taylor’s original diagnosis, based on the angiogram, was “cystic degeneration of the popliteal artery, or some other similar intramural lesion”. He said in his evidence (t671) that there was really not enough information on the angiograms to make a confident diagnosis. He said
“at the time in my report, I thought it might be a cystic degeneration of the popliteal artery, but it’s weighing up an appearance of images that could be a cystic popliteal artery against what is very, very common, which is atheromatous disease, and I don’t think it is possible on those images to be 100 percent certain one way or the other on the angiogram.”
However, he revised his views after seeing the film of the CT scan. In a report dated 12 May 2000 he said: “The fact that no cyst is visible on the CT scan indicates that the lesion is unlikely to be due to a popliteal artery cyst, leaving atheromatous disease as by far the most likely diagnosis”.
Professor Thomson considered that “the most likely radiological diagnosis suggested by this patient’s films is an atheromatous plaque complicated by thrombus or extruding atheroma”. Like Dr Raptis, Professor Thomson was influenced by the squared off bottom end of the lesion. He said (t716): “Normally if something is pressing the artery from the outside, you would have a smooth intake and a smooth out-take of the lesion. If you have a squared-off bottom end, it suggests that there’s something actually in the cavity of the artery rather than pressing in from the outside”. That makes perfect sense to me. Professor Thomson’s evidence was clear and logical. He is a very experienced and highly regarded interventional radiologist who reviews about two and a half thousand angiograms every year. Professor Lord described him as “one of the top three (and possibly the leading) Australian vascular radiologists, and he undertakes analysing reports, all kinds of angioplasty procedures, presents them at international meetings. Apart from his academic achievements, he is also considered a master practitioner.” I am inclined to attach a great deal of weight to his opinion as to the appropriate diagnosis. His opinion was confirmed by viewing the CT scan films. He concluded that these films excluded cystic disease or cysts in the wall of the vessel as a diagnosis.
Having regard to all this evidence, it is impossible for me to say that the diagnosis by Dr Raptis was wrong. I thought that Dr Taylor summed up the position perfectly. He said:
“I thought popliteal cyst was more likely; he [Professor Thomson] thought atheromatous disease was more likely. You could ask hundreds of opinions on those films and some radiologists would say they thought it was atheromatous disease, some would say a popliteal cyst. The point is no-one would be sure, it could be either, and you will get different reports. It could be either based on the films” (t766).
“....if someone else looked at the films and thought ‘no, I don’t think it is a popliteal cyst, I think it is probably atheroma’, that would be a perfectly valid alternative point of view. Just because someone thought that, I wouldn’t say ‘well they are no good’ and disagree. I would say ‘well, that’s their opinion and they may be right’. You will have different opinions. Obviously in hindsight one will be right and one will be wrong, but they are both reasonable opinions at the time” (t769).
The plaintiff has failed to establish on the balance of probabilities any negligence on the part of Dr Raptis as far as his diagnosis was concerned.

Delay in Treatment

There was a delay of some nine days between the angiogram and the angioplasty/bypass. The plaintiff claims that this delay involved negligence on the part of Dr Raptis and that this exacerbated her condition.
Dr Doyle considered that the delay was too long but, as I have said, I am unable to accept his evidence where it is inconsistent with that of the other doctors. In any event, Dr Doyle did not appear to have taken into account the fact that the Doppler Index on the plaintiff’s right leg was .72, whereas for ischaemia to be regarded as “critical” there must be a Doppler level below .3 (see the evidence of Professor Lord at page 1234).
Professor Faris considered that a delay of between nine and ten days was reasonable in the circumstances. Professor Lord said that, on his understanding of the plaintiff’s history, she suffered from chronic ischaemia rather than acute or critical ischaemia (t1234). He explained chronic ischaemia this way (t1234):
“Well, chronic ischaemia describes a clinical condition where over weeks, months, years, the blood flow to a limb has been less than normal and reduced to a level where there is functional impairment of the limb and that, for example, could be manifested as pain on walking. Now, that progress is generally slower and it does not necessarily imply that even if it progresses that there’s any immediate danger in the limb, in fact one can usually observe, by clinical observation and by other tests, whether there is any danger. But broadly speaking, with chronic ischaemia, even when it is critical, there is no necessity to make a rapid intervention to reverse those sort of processes, because the rate of deterioration is, if indeed there is deterioration, that rate is generally in the same sort of time frame, that’s to say, very slow.”
Professor Lord said that he did not have any difficulty about the delay between 4 June and 13 June (t1234). “I don’t see it at all as inappropriate”, he said.
Dr Lovelock said that, given the degree of symptoms and the narrowing in the artery of the plaintiff, he would want to try and do some sort of revascularisation reasonably soon (t533). When the plaintiff’s symptoms as recorded as Ashford Hospital were read to him, he said that he probably would have kept the plaintiff in hospital and tried to do the operation in the next couple of days, rather than bring her back a week later (t534).
Doctors Taylor and Thomson were not asked to comment about the delay.
Dr Raptis pointed out that, quite apart from the fact that he considered the nine days delay not to be unreasonable, and that the delay provided an opportunity for the plaintiff to consider carefully whether to proceed with the operation, there were also other factors to be taken into account. There was Dr Raptis’s own schedule, as well as that of Dr Benveniste whom he wished to have assist him. Because of the gross obesity of the plaintiff, and the possible difficulties that this may cause with anaesthesia and surgery, Dr Raptis wanted to be sure that he had the services of an anaesthetist in whom he had every confidence. He also needed to ensure that a fully equipped operating theatre with imaging equipment would be available in case the angioplasty was not successful and an endarterectomy or bypass had to be carried out.
In all the circumstances, I am not satisfied that the plaintiff has established negligence on the part of Dr Raptis by reason of the delay of nine days, nor that the plaintiff’s condition became significantly worse as a result of this delay.
Nor am I satisfied that the plaintiff has established negligence on the part of the defendant by failing to advise her to contact him if her symptoms became significantly worse before she was due for readmission to hospital. The plaintiff saw her GP (or his locum) on 8 June 1991. Notes were made by the doctor about her having had an angiogram and about the plaintiff being readmitted to hospital on 12 June. No note was made about the plaintiff’s condition having become worse since the angiogram. I have no doubt that, if the plaintiff complained then that her condition had become significantly worse, she would have been examined and, if the examination indicated a serious problem, Dr Raptis would have been notified. The plaintiff said that between the angiogram and the bypass “it never entered my head to ring Dr Raptis to tell him it was getting worse” (p70). It seems that she did not tell her GP either.

Treatment Selection

Having found that Dr Raptis was not negligent in his diagnosis of the plaintiff’s condition, it is difficult to see anything wrong with the treatment of the plaintiff. His diagnosis of atherosclerosis or atheromatous plaque was clearly one that was reasonably open in the circumstances. There is no credible evidence to suggest that angioplasty was not an appropriate procedure for this condition, nor that the bypass procedure was inappropriate when the angioplasty was found to be unsuccessful.
Professor Faris said in his report dated 23 December 1996 that “If the diagnosis was atherosclerotic disease of the popliteal artery, the treatment carried out by Dr Raptis was appropriate and the complications which occurred are recognised complications of treatment”.
Dr Anderson’s evidence included the following (t628):
“Q.If one assumes that this stenosis is caused by atherosclerosis, as Professor Thomson and others apparently consider, there would be no reason why balloon angioplasty procedure would not be undertaken for that type of lesion.
A.No, not at all.
Q...... Even on the basis of that being a cyst as opposed to atheroma, you would not criticise balloon angioplasty procedure.
A.As I attempted to explain to His Honour before, what we are really looking at is shadows. We truly do not know the nature of the lesion. That can only be inferred. Atheroma can have that type of appearance and, in this circumstance, it’s a short-segment lesion; it only spans a short distance, and it would be reasonable to attempt an angioplasty on such a lesion.”
Under cross-examination, Dr Anderson said “I think that the procedure of balloon angioplasty on a lesion like this is not an unreasonable thing to try, and if it doesn’t work, to use some other modality, such as bypass” (t637).
The examination of Professor Lord on this subject was as follows (t1247):
“Q.... Were there characteristics of that lesion favourable to angioplasty?
A.Yes, this is a short lesion and there still is a lumen, meaning that it should - there’s a high likelihood it can be traversed by a guide wire and hence a balloon and it has good run-off, meaning that - this is the popliteal artery here (indicates). Below the popliteal artery there’s three major vessels running off and in the event that there is a complication in one of them means there are two others left to protect against the adverse affects of that complication.
Q...... Were the relative contra indications for angioplasty, namely length of occlusion and poor run-off, therefore absent in this case?
A.They were absent.
Q...... Would that mean that even if the patient was not obese, it would be reasonable to try angioplasty in such a patient?
A.Yes.
Q...... For the reasons which you gave earlier, if the patient was morbidly obese, there would be particular advantages in trying the angioplasty?
A.Yes.”
Dr Taylor expressed views very similar to those of Professor Lord (see t683 line 10 - t684 line 4).
Professor Thomson (t730 -731) considered that the best method of treatment would be to attempt a balloon angioplasty and then, if that did not work, go on and undertake a bypass around the lesion. He explained the main reason for this as follows (t731):
“The main reason would be that bypass is a major operation and there’s a recovery period which requires a reasonably lengthy anaesthetic, and the complication of anaesthesia, and a large patient is pretty immobile after the procedure, and you’re more likely to get more complications as well in terms of venous thrombosis or lung complications. Ideally you would want to have a procedure that required little anaesthesia and could be done quickly and the patient returned to the normal status as soon as possible”.
The plaintiff has failed to establish on the balance of probabilities that an angioplasty, followed by a bypass when the angioplasty was not successful, was not the appropriate treatment.

Method of Treatment

Dr Raptis chose to use a cut down approach for the angioplasty rather than a percutaneous approach. This approach was strongly supported by Professor Lord and Professor Thomson. Professor Lord considered that it would be difficult to locate the artery for the purposes of a percutaneous approach because of the patient’s obesity (t1243). He explained that it may not even be possible to feel the artery and accurately identify it with fingers. Professor Lord also said (t1302) that he would “strongly disagree” with the views expressed by Dr Doyle as to the best method of treatment. Professor Thomson expressed a similar view (t726) as to the difficulties involved in a percutaneous puncture procedure.
The plaintiff has failed to establish on the balance of probabilities that the method of treatment used by Dr Raptis was in any way inappropriate.

The Plaintiff’s Pre-Existing Condition

The plaintiff has tended to assume that all the problems that she had with her right leg after the angiogram carried out on 4 June 1991 and the angioplasty and bypass carried out on 13 June 1991 were connected in some way with these procedures and that Dr Raptis had therefore in some way been negligent. Very little of the medical evidence supports this, having regard particularly to the evidence of Dr Anderson, Dr Taylor, Professor Lord and Professor Thomson, in whom I had the most confidence.
Even Professor Faris, whose hypothesis was that “the passage of instruments into the artery caused the release of ..... material into the circulation. This material then damaged the lining of the small blood vessels to the foot to such an extent that the circulation to the tissues was critically impaired and gangrene resulted”, agreed under cross-examination (t298) that it was more probable than not that there were blockages in the small vessels in the region of the plaintiff’s toe well before the operation.
Professor Lord’s views were similar, but were accompanied by more detailed reasons. The following passage appears at t1258:
“Q.... In her case is it likely that the narrowing behind the knee joint, as shown in the films of 4 June, has taken place from a long time before early June?
A.Considering that the symptoms have been present for months, yes.
Q...... With that level of Doppler Index, would that narrowing behind the knee joint, in itself, be sufficient to cause the months of rest pain and difficulty sleeping?
A.No, it would not.
Q...... Why not?
A..... When there’s a single lesion in the main artery which has been present for months, collaterals will always bypass that and there will not be sufficiently severe ischaemia to develop rest pain and supporting that is the index of 0.72.
Q...... So does that reinforce the view that you’ve expressed that there’s likely to have been some insufficiency in the smaller vessels of the foot and toes before operative intervention?
A.Yes.”
And at t1304:
“A.... .... normally if one sees a combination of popliteal artery lesion and small vessel disease distally, it’s generally felt that that would be on the basis of embolism, fragments coming away and impacting in those smaller arteries. So that, as part of the management of the patient, if you remove the, or deal with, the popliteal artery problem, or restore flow to normal, then you would at least be, apart from the flow restoration, you would be correcting this liability to ongoing small vessel disease more distally in the limb.
Q.Does that mean then that, to the extent that you were postulating yesterday, the process of embolism could have been occurring prior to 4 June 1991, you were still relating it to the lesion in the popliteal artery at those earlier times?
A...... Yes.
Q.And that, in all probability was what was occurring, it was the lesion that was causing the embolism?
A...... Yes.”

Even if the plaintiff’s ongoing problems were in some way related to, or exacerbated by, the procedures undertaken by Dr Raptis, this does not automatically establish negligence on his part. Dr Anderson acknowledged that at the best of times there can be complications when vascular surgery is undertaken for peripheral vascular insufficiency and that these complications can arise even with the most careful of surgeons and do not necessarily indicate any fault on their part (t634).
Professor Lord said (at 1262):
“With any intervention, whether it be angioplasty or operative procedures on arteries to the lower limb, there are complications which can arise, even in patients who do not have rest pain, the end result of which may be loss of the limb. For example, the operation may go - everything may proceed smoothly, but infection may develop in the graft anastomosis and set in train a sequence of events which ultimately might lead to loss of the limb.”
Dr Anderson mentioned the possibility of tiny particles, too small to be seen, breaking off during surgery and lodging in the more distal vessels of the toes. When he was asked whether the breaking off of small particles was preventable he said this (t679):
“It is probably not preventable. It’s partially preventable by patients being anticoagulated [as the plaintiff was in this case] and taking reasonable care not to sort of pass wires and devices across the lesion too often and to do the procedure reasonably quickly and efficiently, but there’s mostly little that can be done about those particles. It’s just one of those risks of the procedure. I assume that some particles are released in almost everybody, but that in the vast, especially majority of cases, they don’t cause any harm. After all, the foot and the body have hundreds of these small vessels and blocking a few in most people would probably be of no consequence. Blocking a large number may well be.”
Professor Thomson considered that “embolic disease is the most likely cause of the ischaemic toes which were noted clinically prior to the angiogram and by the nurse after the angiogram on 4 June 1991” (report dated 7 June 1999).
Professor Lord summed it up this way in his report dated 9 October 1996:
“Why the ischaemia progressed following the attempted balloon angioplasty and bypass grafting on the 13 June 1991 is uncertain. The original pathologic process in the foot may have advanced or may have become exacerbated during the period of arterial clamping. During femoro popliteal grafting it is necessary to arrest the circulation to the foot for a period of time. During this period, blood flow distally may clot and this may be responsible for continuing ischaemia subsequently. Alternatively, during the procedure, material may be dislodged from a proximal source and travel distally impacting in the small vessels. This material could originate from potentially embolic material, such as atheromatous material.
These complications sometimes arise in procedures which are otherwise carried out with all apparent care and often the source and cause of this complication is unknown”.

Conclusion

I have attempted in these reasons to deal separately with what I see as the relevant issues in this case. With each of these issues, I have come to the conclusion that negligence has not been established. That is probably sufficient to dispose of the application. However, when I step back and take a global view of the evidence, rather than examining it in a piece-meal fashion, I am forced to the same conclusion. In my view, it is more likely than not that the problems that the plaintiff has had with her right leg stem from the period before the procedures undertaken by Dr Raptis, probably exacerbated by her obesity and cigarette smoking, and do not arise because of any negligence on the part of Dr Raptis. The plaintiff has failed to establish any causal connection between the procedures undertaken and the subsequent difficulties with her right leg. In fact, it seems likely that those procedures, although not successful in the long term, have had a beneficial effect, particularly when one considers that it was at one stage being considered likely that her leg would have to be amputated. As Dr Anderson put it (t382), it is likely that the bypass grafts provided more time for the plaintiff’s body to develop collateral flow and thus saved her leg.
The plaintiff’s claim is dismissed. The plaintiff must pay the defendants’ costs to be agreed or taxed.

[2000] SADC 86

7 July 2000