Alirezai v Smith

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

GILES JA FITZGERALD JA HEYDON JA

1 GILES JA: I agree with Heydon JA. 2 FITZGERALD JA: The circumstances giving rise to this appeal are set out in the reasons for judgment of Heydon JA. 3 The appellant is confronted with the usual problem which arises when exaggerated claims are rejected. The trial judge did not accept the appellant's evidence that he would not have undergone the surgery if he had received any warning. Her Honour found that the appellant was warned before he underwent the surgery but that he was not given an adequate warning. That left the hypothetical question whether the appellant would have had the operation if he had been adequately warned. Because of the appellant's exaggeration, there is no direct evidence on that issue. In any event, the trial judge plainly considered the appellant's evidence unreliable. 4 The respondent should have warned the appellant not only that the surgery might not improve his condition but also that it might worsen his condition and provided him with appropriate information concerning the possible consequences. 5 The trial judge rejected the appellant's claim because she was "… not satisfied that the [appellant] on the balance of probabilities had he been given a warning in adequate terms would have rejected the option of surgical intervention in favour of learning to live with his condition." That conclusion was based upon a number of factors, one of which was "… the issue of the extent of the risk." In dealing with that issue, the trial judge said: "Although the evidence suggests that the risk was increased by the successive surgical interventions, it was still slight. According to Dr Weidman it was in the range two to 5 per cent." 6 The "risk" referred to in that passage was the risk that the surgery might worsen the appellant's condition. The trial judge did not refer to Dr Weidman's evidence that there was only a ten per cent chance that the surgery would improve the appellant's condition or the somewhat higher chance of success (up to almost 40 per cent) which might be able to be inferred from Dr Nade's evidence. Her Honour did not quantify the surgery's prospects of success. If Dr Weidman's evidence was accepted, the surgery had a 10 percent chance of success and carried a risk of 2 to 20 per cent that it would worsen the appellant's condition. 7 Further, her Honour did not refer in this context to the appellant's "confidence" in the respondent, whom he "trusted .. implicitly" and to whom he "was prepared to travel from Queensland … notwithstanding there were specialists such as Dr Weidman available in Queensland." Her Honour omitted to acknowledge the significance which an adequate warning would have had if it had come from the respondent because of the appellant's confidence and implicit trust in him. She concluded that the appellant's confidence and implicit trust in the respondent and the circumstance that he had "proceeded twice before to surgery [performed by the respondent] without incident" would have caused him to undergo the operation which caused a deterioration in his condition even if he had been adequately warned. 8 I am not persuaded that the trial judge's conclusion that the appellant's claim failed because he had not established that "… had he been given a warning in adequate terms [he] would have rejected the option of surgical intervention in favour of learning to live with his condition" can legitimately be read as a conclusion that the appellant would have undergone the surgery performed by the respondent even if the respondent had informed the appellant that the surgery had only a 10 per cent chance of success and there was a risk of up to 5 per cent that it would worsen his condition. 9 The appellant's case has not been properly considered and there has accordingly been a "substantial wrong or miscarriage" within the meaning of Part 51R23 of the Supreme Court Rules. 10 The appeal should be allowed with costs and a new trial ordered. Since the other members of the Court propose to dismiss the appeal there is no purpose in my considering other issues.

11 HEYDON JA: Background This is an appeal from orders of Sidis DCJ made on 24 September 1999 after a trial on 20-21 September. She found a verdict for the defendant ("the respondent"). However, she assessed the damages of the plaintiff ("the appellant"), had he recovered a verdict, at $125,000. Both conclusions are challenged.

The Trial Judge's Reasoning 12 The appellant suffered a back injury in 1975. From February 1980 to 1983 the respondent treated him. On 16 March 1983 the respondent carried out a disc excision and fusion at the L4/5 level. 13 The appellant then moved to Queensland. In 1990 he returned to Sydney to consult the respondent. On 4 July 1990 he underwent a second operation conducted by the respondent: the fusion was extended from the L5 to the S1 level. 14 A third set of procedures took place in June 1993, when screws inserted in the 1990 operation were removed. 15 On 29 March 1995 a third fusion operation took place. Since then the plaintiff has been experiencing numbness in the wrist-hip area on his left side and from his waist to various parts of his leg on the right side. This is because of cauda equina syndrome. 16 The trial judge found that the respondent had not been negligent in performing the surgical procedure and had not been negligent in post-operative care. 17 The trial judge rejected the appellant's evidence (CAB 7P-R) that the respondent gave him no warning about the risks of the surgery or complications from it. She found that the appellant was given warnings in accordance with the respondent's practice as follows (Red 23L-W): "Effectively he said his practice was to advise his patients that if they decided not to proceed with surgery, their condition would not deteriorate and they would not be exposed to risks of surgery, namely paralysis or a wheelchair. He said he attempted to reassure his patients that if they did nothing, they would come to no greater harm. He said he explained the general risks of surgery including the risks of anaesthesia, wound infection and deep veinous thrombosis. He said that he advised only of the risk of paralysis resulting in crippled or wheelchair bound conditions. He did not give a warning of consequences such as those suffered by the plaintiff. He said he told his patients that the risks which he identified were unlikely to eventuate. As I have already noted there are references in the correspondence which is in evidence to the discussion with the plaintiff of the alternatives namely to do nothing or to proceed with surgery." 18 She also found (Red 29D-G) that Dr Weidman, who treated the appellant while he was in Queensland between 1985 and 1989, gave the appellant warnings along the following lines (Red 24E-L): "He said he advised him against surgery, he recalled discussing surgery with him on several occasions and he had documented this in his records at the time. He said he generally gave the same advice and he could clearly recall giving advice to the plaintiff on more than one occasion, that further surgery to his back would have no more than a 10 percent chance of producing a worthwhile long time improvement and that the risks of surgery could possibly exceed any benefit. He said he could recall telling him that he could be paralysed after an operation, but he had no clear recollection of specifically mentioning bladder or bowel dysfunction."

The appellant said he could not remember any advice from Dr Weidman. 19 However, the trial judge found that the respondent's warnings were inadequate because they did not comply with what Dr Nade said was appropriate (Red 25H-N): "Dr Nade was of the view that an appropriate warning would have dealt with the benefits and the complications of surgery and that as far as complications are concerned advice should have been given as to the general risks as well as those specific to the precise operation to be performed. Specific complications he said would include failure to relieve symptoms, bleeding, infection, perforation of the spinal theca, alteration and function of nerve roots emerging from the cauda equina, causing dysfunction in one or both of the lower limbs, bladder and bowel dysfunction leading to complications."

That is a reference to Dr Nade's evidence at CAB251P-V. 20 The trial judge then found that the failure to warn adequately was not causative of loss. She raised the question of whether the breach: "was ineffective as a cause of the damage given that the event which occurred would probably have occurred in the same way even if the breach had not happened" (Red 28J-L). 21 She then said (Red 28M-29R): "Firstly: I have already found that he did receive a warning in general terms only, not only on this occasion but on two prior occasions. He was also given advice by Dr Weidman as to the general possible complications of surgery. Secondly: having received this advice he had proceeded twice before to surgery without incident. Thirdly: he had confidence in Dr Smith. On his evidence he trusted him implicitly. He was prepared to travel from Queensland to continue to consult with the defendant, notwithstanding there were specialists such as Dr Weidman available in Queensland. Fourthly: he did have options. It was not essential that he proceed to surgery and there were alternative means available to him to relieve his pain and discomfort and I am satisfied on the evidence that those alternatives were explained to him by the defendant. Although the plaintiff states he does not remember it, the evidence establishes that he was specifically advised by Dr Weidman against further surgery and of the limited prospects of improvement of his condition if he proceeded. The material set out in the defendant's letter of 8 March 1995 to the effect that he recommended that the plaintiff learn to live with his condition and give it some time is a contemporaneous note and not evidence given with the benefit of hindsight. There is also the issue of the extent of the risk. Although the evidence suggests that the risk was increased by the successive surgical interventions, it was still slight. According to Dr Weidman it was in the range of two to 5 percent. I am alert to the need as stated by Justice Kirby in Chappell that a breach of a duty to warn must be dealt with seriously. However taking these factors into account I am not satisfied that the plaintiff on the balance of probabilities had he been given a warning in adequate terms would have rejected the option of surgical intervention in favour of learning to live with his condition. On this basis therefore the plaintiff's claim has failed." 22 The appellant's sole complaint relates to these causation findings. 23 The trial judge proceeded to assess damages at $125,000 (being general damages only). The respondent contends that the correct assessment would have been $60,000.

Grounds 3 and 5-7 24 These grounds are that the trial judge erred: "3. in failing to find that the Respondent's failure to warn adequately was causative of the damage suffered by the Appellant. … 5. in finding that the Appellant would have proceeded with the option of further surgical intervention had he been adequately warned as to the risks. 6. in her application of the principles set out in Ellis v Wallsend District Hospital (1989) 17 NSWLR 553. 7. in failing to consider the added risk of the said operation, with respect to those earlier operations performed by the Respondent on the Appellant, when assessing the relationship that existed between the Appellant and Respondent and applying the principles as set out in Ellis v Wallsend District Hospital ." 25 The first submission which the appellant made related to the first two factors to which the trial judge referred (Red 28M-Q): "Firstly: I have already found that he did receive a warning in general terms only, not only on this occasion but on two prior occasions. He was also given advice by Dr Weidman as to the general possible complications of surgery. Secondly: having received this advice he had proceeded twice before to surgery without incident." 26 The appellant submitted (written submissions, paragraph 16): "In the first 2 factors to which Her Honour refers, Her Honour notes that the Appellant had received a warning in general terms previously from both the Respondent and Dr Weidman yet proceeded to surgery. Yet such warnings were, on Her Honour's findings, inadequate. To have agreed previously to surgery on the basis of inadequate information could not, in the Appellant's submission, support a finding that the Appellant would have proceeded if adequately warned. Further, the third fusion was a different, more difficult operation. The stakes were higher and the success rate lower. The fact that the plaintiff agreed to more simple operations previously is of little weight in deciding whether he would undergo the third fusion." 27 One error in this submission relates to the difference between the first two operations and the third. The summary of Dr Nade's evidence given by the trial judge at Red 25H-N does not record the fact that it was given in answer to the question: "What advice should an orthopaedic surgeon have provided in relation to the surgery on 29 March 1995?" (CAB 251N-P). When discussing the failure to warn in relation to specific complications, Dr Nade said that the specific complications "would include … perforation of the spinal theca causing a leak of cerebrospinal fluid in view of the fact that it was the third operative procedure …" (CAB 251T-U). It follows that the strictures levelled by the trial judge against the respondent's conduct in relation to the third operation based on Dr Nade's evidence cannot apply fully to his conduct in relation to the first two operations. Similarly, so far as the strictures of the trial judge are based on Dr Weidman's evidence, that evidence was directed to the third operation, not the first two. He said (CAB 272H-J): "… in patients undergoing a third or fourth operation, I would emphasise to them the operation is technically much more difficult, and that the risk factors are somewhat higher. The risk of bladder or bowel impairment would be a material risk."

That evidence was offered in answer to the question: "What are the risks which should have been made known to Mr Alirezai in relation to the surgery on 29 March 1995?" (CAB 271W). 28 In answer to the question "With what frequency do lumbar fusions, particularly a third one, fail to give relief of symptoms?" (CAB 273W), Dr Weidman said: "The problem is not as straightforward as this. I would tell all patients that they are unlikely to be totally symptom free. I would class a success as a patient stating that the operation was worth their while. In a patient undergoing a further lumbar fusion, the chance of a patient being happy in the long term with the results from surgery would be in the vicinity of 50 percent. After a third fusion, the chance of longterm improvement after further surgery would be 10 percent" (CAB 274D-H). 29 A similar error appears in the submission contained in the appellant's written submissions, paragraph 16, so far as Dr Weidman's warnings are criticised. Dr Weidman was not involved in the third operation, and was not responsible for the defects in any warning on that occasion. His warnings were given in relation to the second operation, and the trial judge made no finding that they were inadequate. 30 In short, in evaluating whether notwithstanding the giving of a non-negligent warning before the third operation the appellant would have proceeded with the operation, the trial judge cannot be criticised for taking account of earlier warnings by the respondent and Dr Weidman, and in particular cannot be criticised for the inadequacy of those warnings. It is far from clear on the evidence, or from the trial judge's findings with which it was closely linked, that the disparity between Dr Nade's recommended warning for a third operation and the warnings given for the first two made the warnings given for the first two inadequate. 31 The third factor stated by the trial judge was (Red 28Q-T): "Thirdly: he had confidence in Dr Smith. On his evidence he trusted him implicitly. He was prepared to travel from Queensland to continue to consult with the defendant, notwithstanding there were specialists such as Dr Weidman available in Queensland."

The appellant submitted (written submissions paragraph 17): "As to the third factor, Her Honour refers to the trust that the Appellant placed in Dr Smith. This implies that Dr Smith was actively recommending the surgery yet there is no evidence as to the extent to which Dr Smith did, if at all, recommend to the Appellant that he undergo the surgery (Grey 52K)." 32 The respondent did recommend surgery at least to the extent of discussing the "pros and cons as it were" in 1993 (CAB 52S). He told him of the "possible benefits" in 1995 (CAB 66G). On 8 March 1995, three weeks before the third operation, the respondent saw the appellant and in a letter written on that day said (CAB 75Q-76F): "I have explained to Mr Alirezai that the functional base of his spine now is L3-4 and that it is uncommon, but nonetheless does occur, that symptoms develop from arthritic change at that level. Most do not find the symptoms severe enough to warrant surgery and that they can live with it. If this is not possible in his case, the third level could be incorporated into the fusion mass but this is totally elective on his part. I have explained to him by way of x-ray whereby some people in the 40 to 60 age group with back pain can be diagnosed as having a three level problem from the outset and three level fusions are undertaken electively from time to time, however it is uncommon for this to be necessary. Arthritic symptoms above L3 are very rare. I tried to explain these various possible outcomes to Mr Alirezai and recommended that he learn to live with the condition and give it some time. He has a traction machine at home which he could use from time to time and would also benefit from physiotherapy from time to time. He is better off avoiding long term non steroidly (sic) anti-inflammatory agents. I have left appointment making up to him."

But the point of the trial judge's reasoning is not that the respondent was urging the appellant to have the third operation, but that the appellant trusted the respondent. Nothing in the evidence is pointed to to suggest that he did not. 33 The fourth factor which the trial judge relied on was put thus (Red 28T-W): "Fourthly: he did have options. It was not essential that he proceed to surgery and there were alternative means available to him to relieve his pain and discomfort and I am satisfied on the evidence that those alternatives were explained to him by the defendant."

The appellant submitted (written submissions paragraph 18): "Fourthly, her honour found that the Respondent explained to the Appellant the 'alternative means available to him to relieve his pain and discomfort'. There is no evidence to support this finding in relation to the time of, or alternatives to, the third fusion." 34 The 8 March 1995 letter reveals that the respondent did explain that the appellant could use his traction machine and would benefit from physiotherapy. The trial judge referred to that evidence (Red 20F-L and 29F-H). 35 The appellant further submitted (paragraph 19): "Further, (Grey 48D) Her Honour refers to her finding that Dr Weidman had advised of the limited prospects of improvement. The implication is that the Appellant was already on notice of the low likelihood of success. Yet Dr Weidman had not seen the Appellant since 1989 (Grey 270N). At that time the Appellant had only had one fusion procedure. The warning given by Dr Weidman six years previously could hardly be held to be relevant to the knowledge of the Appellant six years later in the face of a more difficult and dangerous operation. Further, the statement of Dr Weidman at Grey 270T that he had told the Appellant about the 10% chance of success sometime in 1985-1989 contradicts the later part of his own report. The success rate of a second fusion (as was awaiting the plaintiff in 1989) was 50%, not 10% (Grey 274G)." 36 The warnings of Dr Weidman, even if not recent, cannot be described as not "relevant". The weight to be given to those warnings was a matter for the trial judge. In any event, as is stated below, the use which the trial judge made of those warnings is different from the use attributed to her by the appellant. Further, criticism by the appellant of contradictions in Dr Weidman's report does not come well from the appellant, because he tendered the report, and he did not seek to have the supposed contradictions cleared up by a second report or by oral evidence. 37 Counsel who presented oral argument for the appellant at the hearing of the appeal was different from the counsel who prepared the appellant's written submissions. Not surprisingly, the focus of the oral submissions was somewhat different. In oral argument the appellant concentrated on the following passage in the trial judge's reasons for judgment, which appeared just before the trial judge found that an adequate warning would have made no difference (Red 29J-L): "There is also the issue of the extent of the risk. Although the evidence suggests that the risk was increased by the successive surgical interventions, it was still slight. According to Dr Weidman it was in the range of two to 5 percent." 38 The appellant submitted that there were two relevant "risks" to be considered. One was the "risk" of failing to achieve relief of the appellant's symptoms. Dr Weidman said that there was only a 10 percent prospect of success (i.e. a 90 percent chance of no long-term improvement): CAB 274G. Dr Nade said the risk of failure was "relatively high" (CAB 254Q); he also referred to literature suggesting a 62 percent success rate, but it was far from clear whether this was at a second fusion or otherwise or at a fusion at the same or a different level (CAB 254T). The second "risk" was the risk not of a failure to relieve symptoms, but of a positively detrimental outcome, worsening the patient's condition. Dr Weidman said the risk of a post-operative epidural haematoma was no more than 1-2 percent, and that the "risk of a degree of neurological damage that would concern the patient would be in the vicinity of 5 percent": (CAB 273F-K). 39 The basic position of the appellant in submissions was as follows. There were two key factors to consider, the risk of the operation failing, and the risk of a detrimental outcome. The appellant submitted that the trial judge either assessed both risks as "slight", or ignored the former risk. If she assessed the former risk as slight, she erred in view of Dr Weidman's 90 percent figure and Dr Nade's 38 percent figure. If she ignored the former risk altogether, she left out a vital factor. 40 Did the trial judge ignore the former risk altogether? She referred to the evidence of Dr Weidman that he advised the appellant on more than one occasion before 1989 "that further surgery to his back would have no more than a 10 percent chance of producing a worthwhile long term improvement" (Red 24H-J; CAB 270T). The trial judge accepted Dr Weidman's evidence on that matter (Red 29E-F). At one point the appellant submitted that it was "apparent, although not expressly made clear, that her Honour accepted Dr Weidman's evidence of the facts and his opinion as to the likelihood of failing to receive symptoms occurring at a third fusion" (transcript page 6 line 57- page 7 line 3). However that may be, the trial judge's attention appears to have been clearly focused on the risk of failure. She mentioned Dr Weidman twice in analysing the four factors at Red 28M-W. In the next paragraph she accepted Dr Weidman's evidence about the limited prospects of improvement if he proceeded with surgery (Red 29D-F). In the next paragraph after that, she referred to the letter of 8 March 1995 from the respondent which did not say that surgery would succeed, and did say that the respondent "recommended that [the appellant] learn to live with the condition and give it some time" (CAB 75W; Red 29G-H). Since that letter did not refer to detrimental outcomes, the recommendation is inconsistent with any state of mind on the part of the appellant that surgery had good prospects of success. 41 It seems likely that the trial judge was weighing, in her estimation of whether the appellant would have undergone surgery had he been properly warned, the fact that the prospects of improvement could be as low as 10 percent. The paragraph which immediately follows those just discussed is that quoted above (Red 29J-L): "There is also the issue of the extent of the risk. Although the evidence suggests that the risk was increased by the successive surgical interventions, it was still slight. According to Dr Weidman it was in the range of two to 5 percent."

Here the trial judge appears to be moving from the issue of whether the operation might succeed to the issue of a detrimental outcome. For one thing, the passage opens with words suggestive of a new subject: "There is also the issue …". Further, in that passage the trial judge uses the word "risk" which is not an expression she employed in discussing the evidence about the chances of failure and which is, in ordinary usage, more appropriate to describe the chance of a detrimental change in the patient's condition as distinct from the chance of no improvement. On the other hand, the word "risk" was used by the trial judge in other places to describe the chances of a detrimental outcome: Red 26N-P and 27E. It follows that the adjective "slight" is not being applied at Red 29J-L to the risk of the operation not succeeding, but to the risk of the results being detrimental. 42 It further follows that the two criticisms which the appellant made of the trial judge - that she failed to take into account the risk of failure, or that if she did she called it "slight" - are ill-based. She did take account of it, but not at Red 29J-L, and she did not call it "slight". 43 As noted above, the appellant criticised the trial judge for relying on Dr Weidman's warnings because they were given six years before 1995. The criticism was repeated in oral argument. The criticism was, however, misplaced. The trial judge was not saying: "In evaluating the significance of the absence of a warning about a risk of failure, I can ignore it because of a similar warning six years earlier". Rather she was saying: "Had the appellant been warned of a 90 percent risk of failure, it would have been unlikely to cause him to decline the operation, because a similar warning in 1989 did not cause him to decline the second operation."

New Trial? 44 Even if the trial judge did err in the manner for which the appellant contended, it would not follow that the appeal should succeed. The appellant accepted that he could not ask this Court for a verdict, because the issues turned in large measure on the assessment of primary evidence and in particular on the assessment of the appellant himself. The appellant accepted that the only remedy in relation to established appellable error would be a new trial. Part 51 r 23 of the Supreme Court Rules provides that the Court of Appeal shall not order a new trial on any ground "unless it appears to the Court of Appeal that some substantial wrong or miscarriage has been thereby occasioned." If the reasoning of the trial judge does contain any of the errors contended for, those errors did not cause any substantial wrong or miscarriage. 45 The primary error contended for turned on the risk of the operation not succeeding. At the time of the third operation, the appellant knew that two earlier operations, conducted by a trusted surgeon, had not succeeded. Dr Weidman had told him more than once that the second operation had only a 10 percent chance of success. The respondent had not held out strong prospects of success, and had not urged the operation on the appellant. There was evidence that the respondent discussed with the appellant the risks of the procedure not working (CAB 52U-V). There was also evidence that the respondent said to the appellant words to the effect that "one would hope that he would lose his symptoms" (CAB 65V). This evidence suggests the communication of a real risk that the appellant would not lose his symptoms. The appellant's evidence that he had been given no warning at all, as distinct either from the relatively limited warnings which the respondent said he had given and the more elaborate warning which Dr Nade said should have been given, was not accepted. In contrast, the evidence of both the respondent and Dr Weidman was accepted. The respondent was accepted at Red 24U-W, and Dr Weidman was accepted at Red 24H-L and 29D-F. The trial judge was moderate and courteous in the language she used to express these conclusions, but in more blunt terms they must rest on a disbelief of the appellant at least so far as the conflict between the appellant and the respondent is concerned. The appellant gave no evidence as to what his reaction would have been to a warning of the type which Dr Nade said was appropriate. The appellant gave evidence that if he had been told before the third operation that there was a possibility of a complication but that it was very, very slight - a risk of one in a million procedures - he would not have undergone back surgery (CAB 40K-Q). It is implicit in the trial judge's findings on causation that she must have rejected that evidence. If she had accepted that evidence she would have found for the appellant. The appellant's evidence was certainly on the face of it not credible particularly in the light of the trial judge's findings that the appellant was warned of the risks of the surgery causing paralysis, resulting in him becoming crippled or bound to a wheelchair (Red 23R-S). The appellant never ran a case at trial that a combination of the warnings of Dr Nade and Dr Weidman should have been given. The appellant never gave evidence at trial of what his reaction would have been to the type of warning which Dr Nade recommended. In the circumstances none of the alleged errors can have produced a substantial wrong or miscarriage of justice.

Quantum of Damages 46 Since the appeal fails in relation to the trial judge's conclusions as to liability, the question of her reasoning on damages does not arise.

Orders 47 In my opinion the appeal should be dismissed with costs.

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