Liability including the liability experts
84As already noted I derived considerable assistance from the concurrent evidence of the three liability experts. Although it was suggested that Dr Conrad was not as qualified as the other two experts in the relevant field I nevertheless thought his qualifications did entitle him to express his opinions.
85As a general introductory comment I noted that Dr Conrad was firmly in the plaintiff's camp. Dr Hugh was equally firmly on the defendant's side. Prof Morris, I thought, had a more balanced view.
86I also note that, for convenience, my discussion of the experts may encompass matters going both to the Section 5O defence and also primary liability and causation.
87Dr Conrad pressed the view that in 2006 it was almost mandatory for there to have been an IOC. Dr Hugh thought, unless specifically indicated, it was far from mandatory. Prof Morris lay in between the other two experts, accepting that "this was a divided area" (T 241.40). He thought that, at least in the hospital that he worked, the majority of surgeons did carry out an IOC but he nevertheless recognised that there were two schools of thought.
88Contrary to the evidence of the defendant, who said the IOC equipment would need to be brought in and set-up, Prof Morris said that at the hospital where the surgery occurred, the equipment was already in place (T 243.28).
89The next point taken up with the experts was whether, even if there were two schools of thought on carrying out an IOC without more, there were circumstances under which an IOC would always be carried out as a matter of proper professional practice. In particular the plaintiff's liver function testing was raised, firstly in regard to the testing that had been done and secondly the practice of the defendant not to call for liver function testing when there was no information placed before him at his pre-operation consultation.
90There was no issue that the defendant was not given any liver function testing by the general practitioner and he did not refer the plaintiff for such testing before the operation.
91Prof Morris thought that "doing liver function tests prior to doing a cholosectomy is mandatory" (T 224.46). Dr Conrad was of like view. Dr Hugh was not.
92Dr Hugh thought that if the general practitioner was well known to the surgeon then the surgeon could depend on him to provide any relevant liver testing. In addition he said that the ultrasound examination provided to Dr Magarey showed no dilatation of the bile duct and there was no clinical history of jaundice. Dr Hugh went on to say that therefore "I don't think it was at all unreasonable for him to proceed without further ado" (T 245.29).
93The main difficulty I have with Dr Hugh's view is that it seems dependent on the nature of the relationship between the surgeon and the GP. This, in my view, is a somewhat speculative condition. It is an example of Dr Hugh's unshakeable support of the defendant. To suggest that a surgeon's actions might be dictated by the nature of his relationship with the GP is untenable. One could only guess at where the boundaries might lie. Should liver function tests be ordered if it is the tenth patient referred by the particular GP, or only if there have been less than 10? I prefer the views of Prof Morris and Dr Conrad that liver function testing should have been called for by Dr Magarey before he proceeded to surgery.
94Even the defendant, contrary to Dr Hugh's opinion, said that if he had been made aware of the liver function tests previously carried out (Exhibit B2, page 433) he would have acted in the following manner:
"Q. If this document at 433 had been enclosed when he came along before the operation, would you have done anything different?
A. Yes, I would have, because there is a marginal rise in one of the bilirubins, and I would have liked to have known more about the plaintiff's liver function. I wouldn't have arranged for the cholecystectomy until all that had been clarified. I may well have referred them to a gastroenterologist to confirm that he didn't actually have some liver disease that we were overlooking." (T 126.14).
95Arguably, the defendant's reaction to the liver function test results would have been more cautious than performing the operation with an IOC. The defendant's view thus goes even beyond the opinion of Dr Hugh as to what might be appropriate flowing from the testing.
96The result is that the Section 5O defence must fail in respect of the failure of the defendant to carry out an IOC during the surgery. I emphasise, however, that this conclusion has, as an integral part, the carrying out of the surgery in the absence of liver function tests. The defence would not have failed if the defendant had proceeded to surgery armed with normal liver function tests but still not performing an IOC. I accept that in that scenario there were two valid schools of thought, one of which was to go to surgery without an IOC.
97The next question is whether the decision to proceed to surgery without an IOC (and without any liver function information) was in breach of Section 5B. In my view the breach practically flows from the above discussion in relation to Section 5O. However, the defendant strongly argued against a finding of breach so that it is necessary to proceed through the requirements of Section 5B.
98Firstly the defendant said that the risk of harm was not foreseeable. It was submitted that the relevant risk was that the plaintiff would later suffer harm from an undetected blockage of the common bile duct. It was submitted that the defendant had taken a number of precautions at the pre-operation consultation that would have rendered the risk unforeseeable. He had taken a history, he had examined the patient, he had reviewed a normal ultrasound examination and he had found no clinical indication of jaundice. Accordingly, with that background, any later obstruction of the bile duct was not foreseeable.
99The difficulty with the defendant's submission is that if the overwhelming expert evidence was that an IOC was necessary to exclude stones or sludge in the bile duct, then absent the x-ray examination, the risk of there being material in the duct must have been foreseeable. Once that possibility was foreseeable then the risk of whatever was in the bile duct causing problems at some future time would have been equally foreseeable.
100It was next said, by the defendant, that the risk was not insignificant. There was no suggestion from any expert, not even Dr Hugh, that an attack such as that occurred to the plaintiff in Queensland was minor or not serious. The defendant's submission seemed to be based on the evidence that stones or sludge might pass naturally. Clearly, and well known to the defendant, and the experts, was that the material might not pass naturally. If it did not, it was obviously foreseeable that the failure to pass could result in an attack of the very painful kind that occurred to the plaintiff in Queensland.
101The defendant's submissions in this area seemed to draw on the considerations set out in Section 5B(2). I think I have already dealt with subparagraphs (a) and (b) of this subsection. In relation to (c), namely the burden of taking precautions to avoid the risk of harm, this would not have been onerous. According to Prof Morris the IOC was already set up in the operating theatre, it only extended the time of the operation by 15 to 20 minutes and, in essence, it involved little more than the taking of an x-ray and examination of the result. In my view, the burden was small.
102I do not think that Section 5B(2)(d) is relevant.
103The next question is: What would have been the consequence of having such tests performed? The absence of the tests does not allow a precise conclusion to be reached as to what they would have revealed if taken about the time of the surgery.
104Dr Hugh went a little further to say that, in effect, even if the testing shown at page 433 of Exhibit B2 had been available it would not have made any difference. Prof Morris and Dr Conrad disagreed. Dr Conrad described the need for the testing as "a routine thing". He went on to say:
"If the liver function tests are abnormal, then you must do an operative cholangiogram to rule out a gallstone or biliary abnormality, and if you do see a gallstone or biliary sludge, then even if you're not going to take those out at your operation you then make sure that that patient is referred to somebody who can do an ERCP in a timely fashion." (T 246.27).
105The ERCP referred to by Dr Conrad is a reference to an endoscopic removal of a stone.
106Taking the tests just referred to (Exhibit B2, page 433) as a guide to the plaintiff's condition at the time of surgery, Prof Morris disagreed with Dr Hugh as to the significance of the results. He said:
"I think that the purpose of a normal range is simply that, and I think that the policy around selective use of cholangiography is not that you can pick and choose between which liver function tests you take notice of. If they are abnormal, then that is an indication for cholangiography." (T 246.50)
107I have already pointed out that the defendant would have regarded the known results as requiring further investigation.
108Returning then to the question of what difference an IOC would have made, Dr Conrad said this:
"WITNESS CONRAD: In my view, on the balance of probabilities, the interim operative cholangiogram would have shown a stone. If Prof Magarey was uncomfortable about doing a removal of the stone at the time of the operation, then he would have contacted a gastroenterologist colleague doing ERCP's and asked for the ERCP to be done within a short time frame. Had that been done, then that would have been the end of the matter, the ERCP would have been done, the stone would have been taken out, and Mr Belokozovski would not have had problems that he did subsequently." (T 248.20)
109Dr Hugh thought that Dr Conrad's just quoted view was "unfounded speculation, particular [sic] in view of the fact that the preoperative ultrasound showed no stone, and it showed no dilatation of the bile duct" (T 248.44).
110Prof Morris did not necessarily think that an IOC would have disclosed a stone but he did think that at least sludge would have been diagnosed. He said:
"WITNESS MORRIS: I don't agree with Dr Hugh on that topic in that I think that if a cholangiogram had been done, it is likely - not certain, but it is likely - that the stone/sludge would have been diagnosed. Had that been done, I quite accept that Dr Magarey may not have done an intraoperative clearance of the bile duct, but that he would postoperatively have arranged for that to be done by means of ERCP. The difference that that would have made is that the man would then not have gone on and had pain, and not have had to have an emergency procedure for his biliary problems." (T 249.10)
111I think the above passage from Prof Morris most appropriately sums up the conclusion that I should reach.
112The onus is on the plaintiff to prove causation (Section 5E). A 'but for test' is applicable. The evidence of Prof Morris, which I accept, is straightforward. I repeat a portion of the passage just quoted from Prof Morris: "The difference that that would have made is that the man would then not have gone on and had pain, and not have had to have an emergency procedure for his biliary problems." (T 249.10).
113I am therefore satisfied that the plaintiff's pain and surgery associated with the failure to have had an IOC were caused by the defendant's breach of duty.
114The consequence of the failure to do the IOC was brought to a head by the attack suffered by the plaintiff at Hamilton Island in December 2007. This led to the consultations with Dr Cvetkovski and in turn Dr Craig, on 12 May 2008, and then surgery by Dr Craig on 28 May 2008. Dr Craig carried out an ERCP and a full bow string sphincterotomy, resulting in the removal of biliary sludge from the plaintiff's common bile duct.
115The procedure carried out by Dr Craig signals the end of the consequences of the failure of the defendant to carry out the IOC. The parties agreed that the plaintiff would not be entitled to the costs of the ERCP.
116The continuing problems up to the operation by Dr Gan are a consequence of the umbilical sepsis and discharge.
117Turning now to the second general area of alleged negligence, namely the use of the nylon suture as opposed to absorbable sutures. The starting point for the discussion is whether or not there can be any criticism of the defendant for using the nylon sutures instead of absorbable sutures. Dr Conrad was of this view:
"I think certainly in my time the common wisdom was to use absorbable sutures when doing repairing ports, whether 5 millimetre or 10 millimetre. The umbilical port would have been a 10 millimetre, and it was my practice to always use that unless I felt that there was a larger than standard defect. That may have been due to extreme obesity or due to technical difficulties. But the standard procedure, I would say, in 95% of cases, was that you use absorbable sutures. Only if there is technical difficulties would you use monofilament nylon. Certainly monofilament nylon you can get suture sinus, and that persists until you remove the suture and its associated knot." (T 252.29).
118Dr Hugh disagreed. He said:
"The choice of suture material by surgeons is usually an emotional rather than scientific choice based on a whole lot of factors such as ease of technical use, security of the knots against slipping, and so on, and also by the mistaken belief that's widespread among surgeons that absorbable sutures don't cause sinuses. So I think in general a surgeon would choose a non-absorbable suture where he didn't have - where he had concerns about the strains that would be put on a wound and its liability to disrupt and if he considered that was greater than normal, then he would move towards the view that he would use a non-absorbable suture that would persist. And this patient was obese, technically if you look at his body mass index, and I think it was a reasonable step to use a non-absorbable suture under those circumstances." (T 254.24).
119Although Prof Morris thought there were advantages in the use of a non-absorbable suture he went on to say "I do not believe it can be said to be negligent to use a non-absorbable suture ...". Dr Hugh pointed out that the likelihood of a sinus (infection) attaching to an absorbable suture was the same as that attaching to a non-absorbable suture. The difference was that with an absorbable suture the sinus might resolve with the absorption of the suture. Dr Hugh did, however, say that once the sinus took hold then the process of absorption would be halted or delayed.
120All of the doctors agreed that a sinus attached to a suture would have commenced at the time of operation and not developed some time later. They also agreed that the knot in the suture was the most likely place for the sinus to be found.
121Prof Morris, once again I think, put the matter appropriately when he said:
"I believe that (a) there are reasons for doing that and certainly there are many people who do that. So I don't think that we can say that that is wrong and can a retained non-absorbable suture cause a sinus like this? Yes, absolutely, it does. But I don't believe that that, in itself, means that use of non-absorbable sutures is negligent." (T 255.18).
122In adopting Prof Morris' opinion I do not mean to say that I have relied on his conclusion about negligence as being determinative of a legal issue. Rather I think that his opinion satisfies me that, in using the nylon suture, Dr Magarey "acted in a manner that (at the time the service was provided) was widely accepted in Australia by peer professional opinion as competent professional practice" (Section 5O).
123I am therefore satisfied that the defendant has established the defence under Section 5O that the use of nylon monofilament sutures falls within the bounds of Section 5O(1).
124The plaintiff submitted that any finding under Section 5O(1) should be defeated by a further finding that the practise was irrational under subsection (2). The basis was that if the decision between absorbable and non-absorbable sutures was "emotional", as stated by Dr Hugh, then it was irrational to use one in favour of the other especially if they were of equal strength. This was emphasised by the association of nylon with post-operative infection. The difficulty with the argument, and my reason for rejecting it, is that the evidence was that the susceptibility to infection was equal in both types of suture. The emotional element referred to by Dr Hugh I took as no more than a reference to a matter of choice by a particular surgeon.
125The remaining allegation of negligence to be dealt with is the alleged failure of the defendant to properly investigate the source of the discharge, either himself or through the GP, when the plaintiff attended for the final consultation in July 2006. I have set out above the defendant's twofold response to this allegation. Dealing with the first, it is important to note that it was the plaintiff's case that he had a current discharge when he attended the examination (T 10.36). If he did not then I can see no basis for criticism of the defendant for returning the plaintiff to the general practitioner's care without highlighting the possibility of a sinus attached to the suture.
126The evidence to the effect that there was a discharge present at the final consultation was from three sources. Firstly the plaintiff, secondly his ex-wife and thirdly by inference from the results of the ultrasound performed on 24 July 2006.
127The evidence against the discharge comes from the defendant's interpretation of his notes together with the contents of his letter back to the GP following the consultation.
128The evidence of the plaintiff and his ex-wife must be treated with considerable caution. The damage done to their credibility by their evidence on the gambling issue, and to a lesser extent on other issues that might have affected his mental state, is so profound that I do not accept any of their evidence unless independently confirmed.
129The ultrasound results do not, in my view, provide the independent corroboration. The results can be found in Exhibit B2 at page 442. The plaintiff relies on the clinical history, which states: "Previous laproscopic cholecystectomy. Intermittent discharge of pus and blood. ? wound sinus." According to the plaintiff this history indicates a current discharge. I disagree. On my reading it represents a history that may or may not be current. That it is not current, or at least there was no discharge on 24 July 2006 is confirmed by the result. It states:
"Scanning the area of interest adjacent to the umbilicus only shows minimal skin thickening. There is no evidence of any periumbilical collection or abscess. There is certainly no evidence of any wound collection."
130Thus the evidence of the plaintiff and his wife does not receive the necessary corroboration from the ultrasound report. In addition, of course, is the evidence of the defendant and of his notes. These can be found in Exhibit 3, in particular the typed copy at page 4. They refer to a normal umbilicus on examination. The interpretation of the notes was made clear by the defendant in his evidence (T 119.35). He said:
"Q. Including no discharge?
A. I couldn't see any discharge on that day.
Q. If there would have been, would you have noted that?
A. Absolutely. In fact, I would have gone further. I would have actually got a sterile swab and taken that and sent it for culture to see if I could grow any organism."
131The letter back to the GP after the final consultation (amongst a number of other places at Exhibit 3, page 11) is I think consistent with there being no discharge at the time of the consultation. The defendant states, in the letter, that the umbilicus is quite normal. He continues "the scar has healed very well and there is no inflation or other abnormality deep within his umbilicus".
132Accordingly, I am not satisfied that there was any discharge present at the consultation and therefore no basis to lead the defendant to have any suspicion about a sinus in the stitch requiring further investigation.
133The second response of the defendant to this alleged act of negligence was that the allegation had never been put to the defendant. It was conceded that the defendant had not been asked about the issue but it was not conceded that that absence precluded the plaintiff from relying on the allegation. I think the allegation should have been put to the defendant because it is an allegation about his conduct, particularly his failure to properly advise, which he should have been given the opportunity to meet. No application was made to recall the defendant after the 'omission' was pointed out (T 345.20). However, I make no final decision on the point because I have, in any event, found that the allegation of negligence must fail.
134Having reached the conclusion that the use of the nylon suture was not inappropriate, the following matters became irrelevant:
(a)Whether or not the discharge was caused by a sinus in the suture or by a pilonidal sinus. The latter refers to a sinus associated with a hair.
(b)Whether the fragments of suture found in the pathology testing following Dr Gan's surgery were 'left over' from Dr King's surgery or had some other source.
(c)Whether the discharge was in any way associated with a lack of hygiene, or proper wound care, by the plaintiff.
135It is important to emphasise that there is no suggestion that having decided to use the nylon suture, the defendant was negligent in relation to the insertion of the suture.
136To the extent that it was alleged in the pleadings that there was a failure to remove the suture, I do not think that fact assists the plaintiff. The sutures were intended to remain in the plaintiff's body permanently. None of the experts suggested that, assuming the use of the nylon sutures was appropriate, there was any need for them to be removed.
137I also note that it was not suggested to the defendant that, absent any discharge problems, he should have removed the suture. The topic was also not raised in the concurrent evidence session.
138The consequence of my finding in relation to the use of the nylon sutures is that all of the plaintiff's evidence concerning the "volcanoes" and "eruptions" all become irrelevant in the assessment of damages. This observation extends all the way to the continuing problems caused by the sinus and ultimately leading to, and including, the excision of the umbilicus by Dr Gan.
139Accordingly, damages can only be assessed in relation to the failure to carry out the IOC. As I have already said the claim is then limited to the period ending with Dr Craig's surgery on 28 May 2008 and perhaps a further short period associated with recovery from the operation.