AINSWORTH v LEVI

Court of Appeal (NSW)|1994-11-25|Before: Mahoney JA

the application at that stage because of the excessive length and obscurity of reformulated Grounds 2 and 3 and by a majority was also not satisfied that the new grounds had been raised at the trial.

The appellant was given leave to apply again to add or substitute grounds which were brief but specific as required by SCR Pt51 R8(1)(b) covering matters raised at the trial. On the second and last day of the hearing Mr Bates submitted reformulated grounds. Leave was sought to add grounds challenging the Judge's decision to withdraw para(1)(b) of the particulars (failure to warn). The original notice of appeal did not challenge this decision and I would refuse leave to add such grounds at this late stage.

These grounds challenged the Judge's ruling that the doctrine of informed consent formed no part of Australian law. They must be rejected because in Rogers v Whitaker (1992) 175 CLR 479 the High Court also rejected that doctrine. At 490 the majority said:

"... nothing is to be gained by reiterating the expressions used in American authorities, such as... the oft used and somewhat amorphous phrase 'informed consent'... the phrase... is apt to mislead as it suggests a test of the validity of a patient's consent. Moreover, consent is relevant to actions framed in trespass, not in negligence. Anglo-Australian law has rightly taken the view that an allegation that the risks inherent in a medical procedure have not been disclosed to a patient can only found an action in negligence and not in trespass; consent necessary to negative the offence of battery is satisfied by the patient being advised in broad terms of the nature of the procedure to be performed."

Ground 4 alleged that the Judge erred in ruling that there was no evidence to put to the jury in support of para(1)(c)(ii) and para(d)(ii) which alleged negligence in the diagnosis of the condition of the appellant's throat on 6 April and 13 August 1971. Senior counsel for the appellant had submitted "that the defendant was negligent in diagnosing that the nodules had to be surgically removed without review." The Judge rejected this submission saying that he did not consider that the evidence would justify the jury coming to any such conclusion.

The respondent said that on his first examination he observed that the appellant had a singer's node on each vocal chord approximately half way along, exactly opposite each other. They were white, hard, well established and of long standing. He drew what he saw on a certificate he gave the appellant which became an exhibit. He said he told her "they are well established, they will not go away" and said they could be removed by surgery. Arrangements were made for her to have this procedure later in the year.

There was no direct evidence that this diagnosis was incorrect, let alone negligent, but this was hardly surprising because the appellant was unable to obtain direct evidence. The respondent was the only specialist who saw her throat prior to the operation.

The Judge left to the jury para(1)(f) (failure to advise conservative treatment) which covered the same ground as these paragraphs ("diagnosing that the nodules had to be surgically removed without review'). I have difficulty in seeing how the Judge's ruling on these paragraphs is consistent with his ruling and summing-up on para(1)(f).

In my opinion these grounds are misconceived because the same issues were left to the jury under para(1)(f). I would reject these grounds of appeal.

REMOVING BOTH NODES IN THE ONE OPERATION (GROUNDS 6-7)

These grounds allege that the Judge erred in ruling that the evidence would not permit the jury to find in relation to para(1)(e) that the respondent acted negligently in removing both nodes in the one operation. The Judge said. without further elaboration:

"T do not consider that the evidence would permit the jury to find that the removal of the bilateral singer's nodes in the one operation, when the surgeon was using the microlaryngoscope, was unacceptable practice."

The experts called by the appellant, Drs Finney, Bulteau and Carroll were only familiar with the older procedure using cup forceps and had not used diathermy. However it was common ground that the advent of the binocular microscope (microlaryngoscope) used by the respondent had been an enormous advance because it allowed binocular vision, greater magnification, freed both hands of the surgeon, and allowed much greater precision (560, 354-356).

It was common ground that the surgeon should not disturb the anterior commissure where the vocal chords come together because of the risk of web formation in this region. Web formation can also occur elsewhere if opposite parts of both vocal chords are improperly interfered with in surgery. This could also occur where cup forceps were used. Dr Finney said that the nodes should be removed in separate operations to reduce this risk (23). However Dr Carroll said that they could be removed at the same time and this was his practice (578).

There was no evidence that there was a greater risk of mishap if both nodes were removed at the one time using a microlaryngoscope and none of the experts said that such a procedure was inappropriate. The appellant's case at its highest did no more than establish the existence of two available procedures, each with its own risks disadvantages and benefits. The mere existence of an alternative procedure which would or might have avoided the particular mishap does not furnish evidence of negligence in a case such as this. In any event, as Dr Finney pointed out (23N-R), the relevant risk in the use of the bilateral procedure was that a web would form at the point where the nodes had been removed. This did not occur.

In my opinion this ruling by the Judge was correct and I would reject these grounds of appeal.

This ground was withdrawn during the hearing of the appeal (transcript at 59).

ALLEGED MISDIRECTION IN RELATION TO NEGLIGENCE IN THE OPERATION (PROPOSED NEW GROUND 10)

On the second day of the hearing Mr Bates sought to add a new ground 10 to the notice of appeal as follows:

"The jury's consideration of whether or not the operation itself was carried out negligently in accordance with the directions reproduced at AB 5/1032J-1051P (pursuant to paral 1(1)(e) and paral 1(2) of the particulars) was tainted and should be set aside because of the undue and incorrect emphasis given by the primary judge in his Summing-Up (at ABS/1015A-C, AB5/1018J-M, AB5/1026F-H,

AB5/1029W-1030F) to the notion that professional practice is determinative as to whether or not there was or were breaches of duty as alleged."

The passages referred to were not directed to the issue of negligence in the operation but to whether the choice of surgery without attempting a cure by conservative treatment was negligent. The Judge's directions on negligence in the operation were straightforward and conventional. They are not affected by anything in Rogers v Whitaker and were not objected to by experienced senior counsel appearing for the appellant.

In my opinion the proposed ground of appeal is misconceived and I would refuse leave to amend to include this ground.

I have not yet dealt with the questions which occupied most of the hearing. Consideration of the existing and proposed grounds of appeal has satisfied me that the bulk of the argument was directed to matters which were not formally in issue. In these circumstances the Court could simply dismiss the appeal without considering other questions. However argument on those questions was entertained and answered without objection based on the form of the notice of appeal or the proposed amendments and it would not be appropriate for this Court to reject them on purely procedural grounds. Compare Leotta v PTC (1976) 50 ALJR 666, and Balmain New Ferry Co v Robertson (1906) 4 CLR 379.

The other issues debated during the hearing included:

The use of the diathermy procedure was itself negligent.

Alleged misdirections based on the relevance of accepted professional practice.

"T do not consider that the evidence would permit the jury to find the use of diathermy itself to be an unacceptable practice in the removal of singer's nodes."

None of the appellant's experts said that the use of diathermy was inappropriate or involved undue risks (T27-29, 34). The appellant's case was that diathermy involved certain risks and therefore it was open to the jury to find that its use in preference to the older method was negligent.

The only evidence as to the use of the diathermy technique was given by the respondent and the expert, Dr Bridger, called in his case. If accepted this established that proper use of the technique would not produce a web in the anterior commissure and that this was not an inherent risk of the procedure. Even if that evidence were rejected, there was no evidence to the contrary.

There was also no evidence that the diathermy procedure carried higher inherent risks than the conventional procedure with cup forceps. The respondent agreed that each procedure carried its own risks but would not agree that diathermy involved higher risks (AB 791). There was no evidence to the contrary. In my opinion the following submission of Mr Garling (36-37) was correct:

"The plaintiff can't prove a case of this kind by saying... there were two available (surgical) practices: one carried certain risks, the other carried certain risks; one carried certain benefits, the other carried certain benefits; and because the surgeon chose to use one or the other..., he is thereby negligent."

Mr Bates however argued strenuously that such an approach was contrary to Rogers v Whitaker and to Albrighton v Royal Prince Alfred Hospital (1980) 2 NSWLR 542 and F v R (1983) 33 SASR 189 referred to by the trial Judge. Rogers v Whitaker establishes that in the context of the duty to give medical

advice the fact that a body of reputable medical practitioners would have been given the same advice as the defendant does not preclude a finding of negligence. The relevance of alternative acceptable surgical procedures did not arise for decision in that case. However this was not a novel issue in Australia, having been considered by this Court in Albrighton in which the trial judge had been counsel for the plaintiff at the trial. Reynolds JA, speaking for the Court on this issue, said at 562-563 that it was:

".. a Wrong assumption that a jury should be directed that, if what is charged as negligence is shown to have been done in accordance with the usual and customary practice... then prevailing in what was called a particular 'medical community' they cannot find negligence. This, in my opinion, is plainly wrong because it is not the law that, if all or most of the medical practitioners in Sydney habitually fail to take an available precaution to avoid foreseeable risk of injury to their patients then none can be found guilty of negligence."

The relevant UK authorities up to that time, including Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 had been referred to in argument.

It would be remarkable if the trial Judge had given a ruling or summed up to the jury contrary to the principles applied in Albrighton and I have not been persuaded that he did so. His Honour said:

"... the plaintiff (is entitled) to assert negligent treatment if the following two basic questions can be answered affirmatively:

(c) advise of conservative treatment alternative to surgery, depart from 'a practice rightly accepted as proper by a body of skilled and experienced men' (see Sidaway's Case... per Sir John Donaldson MR at 792) and, if so,

was the failure the cause of the plaintiff's injuries? Mr Rofe QC for the plaintiff has submitted that the court should not abdicate to the medical profession the determination of the relevant standard of care in any particular case... I think there is no risk of any such abdication if you accept, as I do, the addition by Sir John Donaldson MR in Sidaway's Case of the qualifying word 'rightly' to the appropriate test... Sir John Donaldson MR observing "... that, in an appropriate case a judge would be entitled to reject a unanimous medical view if he were satisfied that it was manifestly wrong... "

The Judge later referred to and relied upon that part of the speech of Lord Scarman in Maynard v West Midlands Regional Health Authority [1984] 1 WLR 634 at 639 where he said:

".. in the realm of diagnosis and treatment negligence is not established by preferring one respectable body of professional opinion to another. Failure to exercise the ordinary skill of a doctor (in the appropriate specialty, if he be a specialist) is necessary."

The appellant's submissions invited the Court to reject this principle because it was contrary to Rogers v Whitaker. The High Court there carefully distinguished between cases where the alleged negligence lay in the provision of professional advice on the one hand and cases where it involved diagnosis or treatment on the other. This distinction was not drawn because different principles of law applied but because diagnosis and treatment were more likely to involve technical questions which a tribunal of fact could only determine in the light of expert evidence. At 489 the majority said:

.. the factors according to which a court determines whether a medical practitioner is in breach of the requisite standard of care will vary according to whether it is a case involving diagnosis, treatment or the provision of information or advice; the different cases raise varying difficulties which require consideration of different factors... There is a fundamental difference between, on the one hand, diagnosis and treatment and, on the other hand, the provision of advice or information to a patient. In diagnosis and treatment the patient's contribution is limited to the narration of symptoms and relevant history; the medical practitioner provides diagnosis and treatment according to his or her level of skill... Whether a medical practitioner carries out a particular form of treatment in accordance with the appropriate standard of care is a question in the resolution of which responsible professional opinion will have an influential, OFTEN A DECISIVE, role to play." (emphasis supplied)

".. it has been accepted that the standard of care to be observed by a person with some special skill or competence is that of the ordinary skilled person exercising and professing to have that special skill. But that standard is not determined solely or even primarily by reference to the practice followed or supported by a responsible body of opinion in the relevant profession or trade. Even in the sphere of diagnosis and treatment, the heartland of the skilled medical practitioner, the Bolam principle has not always been applied."

The majority cited as authority for this latter proposition the passage in Albrighton at 562-563 quoted above. Earlier at 485 they had referred to Maynard as authority for the principle accepted by the trial Judge without any hint of disapproval.

This Court held in Albrighton that there was evidence which would have entitled a jury to find that the defendant doctors had been negligent. See at 553-556. Reynolds JA at 554 said:

".. the existence of expert evidence makes it unnecessary in this case to venture into the difficult area of what the common experience of mankind may tell a tribunal of fact where unexpected and unintended harmful results follow medical treatment. This is not a case where the tribunal of fact is given only the simple facts that a patient submitted to spinal traction on advice and finished as a paraplegic, nor is it realistic to think that it would be left to a jury to approach the case on the basis that, if they rejected all else, they would be left with only those basic facts. There is far too much common ground for that position to be reached... "

There had been expert evidence of the risk of subjecting patients such as that plaintiff to spinal traction, and given that her spinal cord (unusually) was attached to her spine and that the defendants should have known or suspected this, the risks involved in spinal traction were, it might be thought, obvious.

In the present case there was no evidence, expert or otherwise, that diathermy involved any greater risk to the anterior commissure than the conventional procedure. Leaving this issue to the jury would have merely invited them to prefer one respectable procedure and one respectable body of professional opinion to another. The existence of an alternative procedure, without more, can provide no evidence of negligence in a case such as this. In my opinion, the Judge correctly withdrew this issue from the jury.

The Judge left to the jury the issue whether the respondent was negligent in failing to advise that an attempt be made to cure the singer's nodes by conservative treatment before undertaking surgery. In summing-up to the jury the Judge, following the speech of Lord Scarman in Maynard previously quoted, directed them that negligence could not be established by preferring one respectable body of professional opinion to another. No objection was taken to these directions. However the point had been raised and dealt with by the Judge in his judgment of 24 September. He summed up as foreshadowed in that judgment, and since this point had already been taken and ruled on, there was no need to formally take it again at the conclusion of the summing-up. The Judge directed the jury (1014-15):

"In the realm of diagnosis and treatment there is ample scope for genuine differences of opinion and one man clearly is not negligent merely because his conclusion differs from that of other professional men. The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure that no doctor of ordinary skill would be guilty (of) if acting with ordinary care.

In the realm of diagnosis negligence is not established by preferring one respectable body of opinion to another. Failure to exercise the ordinary skill of an ear, nose and throat surgeon is necessary. I ask you to remember that particularly when you come to the question about the issue of the advice as to undergoing, if I may call it, conservative treatment. It is not a matter of you making a preference. If there is a respected body of medical opinion which the doctor has followed that may be different to another body, he cannot be found negligent..."

The Judge was instructing the jury on the legal principles relevant to their determination. This was his function. See Alford v Magee (1952) 85 CLR 437 at 466. He had no need to refer to other principles, qualifications or exceptions which may have been relevant in other cases but which did not arise for the jury's consideration in this case. Such references would not have assisted the jury and would have been unhelpful and confusing.

He reminded the jury of the expert evidence on this issue (1018-1030). Dr Finney said that a specialist would "usually" advise conservative treatment (1018) and that it would be "exceptional" (1020) to advise surgery at the first consultation. He did not agree that conservative treatment was not beneficial with well established nodes (1020) and said that it was successful in three quarters or more of adult patients (1021). Dr Bulteau acknowledged that it was proper in some cases to recommend surgery without attempting conservative treatment (1022) depending on the clinical evidence (1023). Dr Carroll said that the criterion for surgery was the persistence of the nodes after vocal rest (1024) and that immediate surgery was only indicated if the nodes were "enormous" that is, the size of match heads (1026).

The Judge referred to the respondent's evidence that voice rest before attempting surgery was not an inflexible rule (1027) because it gave no consideration to the particular patient. Dr Bridger said that in 1971 there were two schools of thought, a conservative school and a more active school. The latter considered that nodes, once formed, were very likely irreversible, that prolonged conservative treatment did not get results, and surgery was preferable. However he said that it depended on the person and the circumstances (1028).

"... None of the conservative doctors that I have just referred you to expressed a view that Dr Levi was wrong in not advising a period of voice rest and speech therapy."

"So the defendant says that there is clear evidence of a responsible body of expert opinion who would not have advised a patient such as the plaintiff to undergo conservative treatment, so on this issue the plaintiff fails for that reason. If you decided (for) the plaintiff on the initial issue of whether such advice to undergo conservative treatment was required by accepted medical practice, which would mean rejecting the alternative school, not by way of preference, but by way of its existence, then the question is..."

It was not suggested that the first passage was incorrect and no redirection was sought. The second passage left for the jury's consideration the question whether there was, as respondent's counsel had submitted, "clear evidence of a responsible body of expert opinion" in favour of the course taken. The Judge told the jury that a finding for the plaintiff on this issue would require them to reject "the alternative school" which supported the defendant's advice "not by way of preference but by way of its existence". The judgment of 24 September did not foreshadow a direction in these terms.

This direction may not have been happily expressed and it appears to use a form of shorthand. No issue was raised as to the honesty of Dr Bridger so clearly an alternative school of thought did exist in fact and the Judge had reminded the jury of the relevant evidence at 1026-1029. The Judge had earlier held that there was a real question for the jury's determination on this issue. (1005I) One wonders then what the Judge meant by telling the jury that to find for the plaintiff on this issue they would have to reject "the existence" of the alternative school.

Counsel addressed the jury for three days (1016) and it seems likely that the reference to rejecting "the existence" of the alternative school picked up the way this expression had been used by counsel in their final addresses. The Judge must have thought the jury would understand what he was referring to.

It seems to me that the Judge must have intended to leave to the jury by this direction the question whether the alternative, more active, school of thought followed by the respondent was supported by a respected body of medical opinion (1014V, 1015C) and reflected a proper standard (10131), or was one which no doctor of ordinary skill would use if acting with ordinary care (1014T).

In Rogers v Whitaker the majority (at 489) said that in cases of alleged negligence in diagnosis and treatment responsible professional opinion "will have an influential, often a decisive role to play." In her separate, concurring judgment, Gaudron J said (at 493) that in such cases expert medical evidence "is of very considerable significance", although there was no legal basis for limiting liability in terms of the Bolam test. She added:

"That is not to deny that... the Bolam test may be a convenient statement of the approach dictated by the state of the evidence in some cases. As such it may have been utility as a rule-of-thumb in some jury cases."

The Judge did not withdraw the issue of negligence in failing to advise conservative treatment from the jury, as he would have done if he had fully accepted the Bolam test. He left this issue to the jury for them to consider in substance whether the school of thought followed by the respondent should be accepted as reflecting a proper standard. This allowed the expert evidence its proper role without usurping the function of the jury.

The judgment of 24 September did not foreshadow a direction in terms requiring the rejection of the "existence" of the alternative school. It therefore did not relieve the appellant's counsel from their obligation to raise objections to the summing-up to enable the trial Judge to correct any error or omission by a further direction. Senior counsel for the appellant did not seek any further direction on this matter, presumably because he was satisfied that in the context of the final addresses the Judge's reference to "the existence" of the alternative school of thought was not likely to mislead the jury as to the real question for their consideration on this issue. I am not satisfied that the passage involved any misdirection but if it did, I would hold that no substantial wrong or miscarriage was occasioned thereby and would refuse to order a new trial on this ground (SCR Pt51 R16).

In my opinion therefore the following orders should be made: 1. Leave to amend the appellant's notice of appeal refused.

Order that Robert James Charles Benjamin executor of the estate of the late Louis Levi be substituted as respondent.

Leave to amend the appellant's notice of appeal refused.

Order that Robert James Charles Benjamin executor of the estate of the late Louis Levi be substituted as respondent.

MAHONEY AP, MEAGHER and HANDLEY JJA 24-25 November 1994, 30 August 1995 [1995] NSWCA 9

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