Booth v Di Francesco

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION PROFESSIONAL NEGLIGENCE LIST

20152/00 MARGARET BOOTH v ANTHONY DI FRANCESCO (DR) JUDGMENT (mOTION FOR APPOINTMENT OF JOINT CONFERENCE OF EXPERTS) 1 HIS HONOUR: The defendant in this cause has applied on notice of motion for an order pursuant to Pt 36 r 13CA for a conference of four medical experts who have given reports in the matter. The plaintiff has opposed the application. 2 It is the plaintiff's case that she came under the care of the defendant, a gynaecological surgeon, in April 1994 and that on 21 July 1994 the defendant performed surgery upon her in the nature of an abdominal hysterectomy with bilateral salpingo-oophorectomy. It is the plaintiff's case that the removal of the uterus, ovaries and fallopian tubes was unnecessary and that the surgery was, in any event, carried out carelessly, with tearing of the bladder. The defendant denies negligence, and it is defendant's case that the surgery was appropriate and was properly performed. 3 In the statement of claim, and these allegations remain part of the plaintiff's claim in the form of the amended pleading to which the Court's attention was drawn on this occasion, it is alleged, inter alia, that there was negligence in advising the plaintiff to undergo the surgery, in the performance of the surgery, in performing it so as not to damage other organs, in tearing the bladder and then in failing adequately to repair it. It is also alleged that there was a failure to test the patency of the bladder before the plaintiff's abdominal cavity was closed. It is the existence of these allegations in the plaintiff's case to which Ms Chandra drew attention on behalf of the defendant in the course of argument. 4 In the affidavit in support of the motion, Ms Chandra conveniently summarised the opinions expressed by each of the four experts who it is contemplated would attend any joint meeting if the Court now makes the order sought. No objection was taken to the summary of the opinions contained in paras 12, 15, 18 and 20 of the affidavit of Ms Chandra and it is convenient to draw upon these paragraphs now to record the essential conclusions of the doctors named. 5 The experts qualified by the plaintiff are Dr Korda and Dr Lyneham. 6 Dr Korda reached the conclusions expressed in para 12 of Ms Chandra's affidavit as follows: "(a) there were no obvious indications for the performance of the hysterectomy on 21 July 1994;

(b) hysterectomy is only recommended for patients with moderate to severe atypical adenomatous hyperplasia;

(c) the histopathological report of the curetting obtained at the time of the dilatation and curettage on 5 May 1994, revealed focal adenomatous hyperplasia with no significant atypia, which is not a malignant or pre-malignant condition;

(d) the defendant prescribed an inappropriate dose of progesterone;

(e) when the plaintiff was unable to tolerate the progesterone prescribed by the defendant, no attempt was made to try her on alternate method of progestin treatment;

(f) in his report of 28 February 2001, Dr Korda states that the repair of the bladder at the time of the hysterectomy was appropriately performed;

in his report of 4 April 2001, Dr Korda states that there is no evidence that the injury to the plaintiff's bladder was repaired appropriately." 7 Dr Lyneham's conclusions, as summarised in para 15 of Ms Chandra's affidavit, were these: "(a) the plaintiff should have been treated conservatively for her adenomatous hyperplasia, although any discussion of therapeutic options should have included total hysterectomy and bilateral salpingo oophorectomy;

(b) the total abdominal hysterectomy and bilateral salpingo oophorectomy was not properly required to treat the plaintiff's condition of adenomatous hyperplasia;

(c) in some circumstances hysterectomy would have been appropriate;

(d) the defendant prescribed an effective dose of oral progestogen;

(e) taking into account the plaintiff's inability to tolerate the progestogen prescribed, it is likely that any other form of progestogen treatment would have been associated with a similar response." 8 The defendant has qualified Professor Hacker and Dr Grant. 9 Professor Hacker's conclusions are expressed in para 18 of Ms Chandra's affidavit: "(a) the advice to undergo hysterectomy and the performance of the procedure was entirely appropriate and reasonable, given the circumstances of the case;

(b) the damage to the bladder was an acceptable complication in a patient such as this; (c) the injury to the bladder was repaired appropriately." 10 Dr Grant's conclusions are expressed in para 20 of Ms Chandra's affidavit: "(a) the hysterectomy and bilateral salpingo-oophorectomy was indicated and the best treatment for adenomatous hyperplasia in a patient who was unable to tolerate progestogen;

(b) the damage to the bladder occurred most likely as a result of the extensive adhesions rather than any omission on the part of the defendant;

(c) there is no evidence that the defendant's repair of the bladder trauma was faulty or departed from normal care." 11 Ms Chandra has submitted that a meeting of experts in this case may help to narrow the issues in contention in relation to these matters (and I refer to para 21 of the affidavit sworn by Ms Chandra): "(a) the medical classification of the plaintiff's condition to clarify all treatment options which were appropriate for her condition;

(b) the risk of the plaintiff's condition progressing to cancer;

(c) the treatment options available to the plaintiff in 1994 and whether the options would differ depending on whether a woman is pre-menopausal, peri-menopausal and post-menopausal;

(d) whether hysterectomy with bilateral salpingo-oophorectomy was an appropriate treatment option to offer the plaintiff, given the circumstances of her case;

(e) whether the surgery was performed with reasonable care;

(f) whether the bladder repair was performed with reasonable care." 12 Ms Chandra asked the Court to consider some suggested questions for the consideration of the joint meeting and in that document Ms Chandra has defined questions perceived by the defendant to address those medical issues as set out above. Ms Chandra has submitted that the matters ought to be capable of due consideration at a conference occupying no more than three hours, and, of the four experts who would be involved, three practise in Sydney. It would be the defendant's responsibility to arrange for the attendance of Professor Hackett who would be required to come from Melbourne should a conference be appointed. 13 Mr Williams submitted that the appointment of a conference would be inappropriate in the circumstances of this case. It was his submission that the experts have arrived at conclusions which are conflicting and that there would be little prospect of agreement in relation to any of the questions which the defendant contemplates could usefully be asked. He submitted that the burden of costs which would fall upon the plaintiff in relation to the conference would not be warranted since the prospects of a useful outcome at the conference are low. Mr Williams further submitted that the most recent amendment to the statement of claim introduced a disorder in the nature of a dependent personality disorder and consequences there from which would not be addressed in the meeting proposed. 14 I have now considered closely the reports of the four experts with the competing submissions of the parties in mind. 15 Dr Korda has furnished a number of reports to the plaintiff's solicitors, all of which are annexed to the affidavit of Ms Chandra. In the first of those reports dated 28 February 2000, Dr Korda opined that there appeared to be no obvious indications for the performance of the hysterectomy that was undertaken. Then, in the report of 11 August 2000, Dr Korda, having stated that the endometrium in the plaintiff's case showed no evidence of atypia, went on to opine that hysterectomy was only to be recommended for patients with "moderate to severe atypical adenomatous-hyperplasia" and there was no evidence that the plaintiff was suffering from this. Then, in a most extensive report dated 4 April 2001, Dr Korda reviewed Professor Hacker's report of 5 December 2000, to which I shall presently refer. It is clear that Dr Korda disagreed in very significant respects with Professor Hacker. Matters of disagreement recorded included:

(i) Professor Hacker's assessment of the adequacy of the trial of progestogens undertaken;

(ii) he disagreed with Professor Hacker's conclusions that the advice given to the plaintiff was entirely appropriate but, of course, there are conflicting accounts as to what the content of this advice was, considering the account of the plaintiff on the one hand and the account of the defendant on the other, and this conflict could not be resolved in a conference of experts. All the experts could do would be to express opinions based upon each of the conflicting assumptions of history, and Ms Chandra has recognised this feature in the expression of the draft questions for the meeting;

(iii) regardless of history however, Dr Korda has expressed his disagreement on the course of surgical intervention in this case. There are other expressions in his report about this, but it suffices for present purposes for me to record what Dr Korda said at p 6 of his report of 4 April 2001: "I disagree with Professor Hacker's conclusions that a hysterectomy was a perfectly reasonable option for Mrs Booth. The presence of adenomatous hyperplasia in a woman with a long history of pelvic pain, two previous Caesarean sections, a previous uterine perforation requiring laparotomy and oversew, a previous anterior vaginal repair, a long history of pelvic pain and documented endometriosis are all warning that surgery should be avoided at all costs. In view of the fact that Mrs Booth did not have a malignant condition, the chances of adenomatous hyperplasia turning malignant were between 0-3%, that she was not given a reasonable option of observation but was strongly advised to undergo surgery and the trial of progestogens was short and sub-optimal in dose, the advice to undergo a hysterectomy was not in accordance with proper standards of specialist gynaecological practice." 16 Whilst perhaps expressing himself less forcibly than Dr Korda, Dr Lyneham, in his report of 31 May 2001, made it clear, at least on my reading of his report, that the extensive operative procedure undertaken was not appropriate. He wrote ( at p 8 of his report): "Mrs Booth's lesion was of the more minor form, limited in extent and symptomatically of very brief duration. If it was going to develop into endometrial cancer, it would not be a rapid change but rather would afford a gynaecologist ample opportunity to continue surveillance and reassess when appropriate. The risk of hysterectomy was increased in Mrs Booth, an increased risk that was recognised by Dr Di Francesco and led to his having a consultant surgeon in theatres with him. On that basis, it would be my view that total abdominal hysterectomy and bilateral salpingo-oophorectomy was not properly required to treat Mrs Booth's 'adenomatous hyperplasia'." 17 Dr Lyneham went on to say this: "If, after a full and detailed explanation of the therapeutic options and risks of hysterectomy, Mrs Booth was of the strong view that she wanted to have a hysterectomy performed, to remove any risk of endometrial cancer in the future, and remove any need for ongoing gynaecological surveillance, then hysterectomy would have been reasonable. Such a decision would have had to have been made by Mrs Booth following a detailed explanation by Dr Di Francesco, preferably on more than one occasion. She would have needed to have been advised that the abnormality that was in the uterus was a mild form of abnormality, limited in its extent within the uterus and overwhelmingly likely to resolve spontaneously; it was even more likely to resolve with hormonal treatment; and very unlikely to develop into cancer, but with plenty of time to detect premalignant changes before cancer developed, if surveillance was pursued. With hysterectomy likely to be associated with an increased risk of intraoperative complications, performing a total abdominal hysterectomy with bilateral salpingo-oophorectomy without Mrs Booth's clear understanding of this clinical setting would, in my view, be a departure from acceptable standards of care." 18 The opinion expressed in the last paragraph above set out once again emphasises the importance of establishing the advice which was given by the defendant to the plaintiff, and the resolution of this issue, of course, cannot be assisted by anything that occurred at a conference of experts. 19 In his later report of 25 October 2001, Dr Lyneham made this observation on the report of Professor Hacker: "On page 2 Professor Hacker states that 'I not infrequently see patients whose curettings show some type of endometrial hyperplasia, but when the hysterectomy is performed, there is invasive cancer present, (in addition to the hyperplasia)'. This is not altogether surprising, but as I have discussed already, the likelihood of there being cancer present when there is adenomatous hyperplasia without atypia, is probably less than 1%. Indeed, in the case of Ms Booth, there were areas of focal adenomatous hyperplasia with most of the endometrium showing either proliferative or early secretory endometrium. I would be surprised if Professor Hacker sees unexpected invasive cancer in the hysterectomy specimens of patients such as these 'not infrequently'." 20 Professor Hacker, in his report of 5 December 2000, opined that the surgical procedure "was entirely reasonable for the following reasons": "(i) the patient was given the option of observation, but elected to have surgery.

(ii) the patient was given a trial of progestogens, but was unable to tolerate them.

(iii) a small proportion of patients with hyperplasia in the curettings will have carcinoma in the hysterectomy specimen.

(iv) the patient had a family history of breast cancer in 2 aunties and one cousin. This pedigree would have increased her own risk of developing ovarian cancer, and also her risk of developing serious carcinoma of the endometrium, although the risk of the latter would still be very low.

(v) the patient was 49 years of age and had a long history of pelvic pain, thought to be due to pelvic inflammatory disease (PID)." 21 Professor Hacker returned to a consideration of the appropriateness of the surgery undertaken in his letter of 13 February 2001 in which he considered what Dr Korda had written. Professor Hacker had this to say in February 2001: "I do not agree with Dr Korda that 'the performance of the hysterectomy was not indicated and was a departure from the standard of care expected of a reasonable gynaecologist'. I have already stated my reasons for believing that a hysterectomy was a perfectly reasonable option, given all of the circumstances. I shall reiterate them here: (i) the patient was given the option of observation, but elected to have surgery.

(ii) The patient was given a trial of progestogens, but was unable to tolerate them.

(iii) A small proportion of patients with hyperplasia in the curettings will have carcinoma in the hysterectomy specimen.

(iv) The patient had a family history of breast cancer in 2 aunties and one cousin. This pedigree would have increased her own risk of developing ovarian cancer, and also her risk of developing serious carcinoma of the endometrium, although the risk of the latter would still be very low." 22 Dr Grant's report bears date 10 June 2001. Like Professor Hacker, Dr Grant considered "the preferred therapy should have involved removal of the uterus", going on to say: "The reasons for this preference are 1. The exact risk of progression of untreated adenomatous hyperplasia to endometrial cancer in perimenopausal women is unclear but may be significant. Gusberg and Kaplan report a 12% risk of progression to cancer while Sherman reports the risk to be 20% and Wentz found it to be 27%.

2. The risks of repeated hysteroscopy and curettage in a patient who has already had one uterine perforation and has had repeated episodes of pelvic infection is of concern. These procedures carry with them the risk of exacerbation of PID and/or a further perforation." 23 The doctor later added: "The operation as performed was an appropriate, and in my opinion, the best treatment for adenomatous hyperplasia in a patient unable to tolerate progesterone therapy." 24 Part 36 r 13CA provides a facility which practitioners involved in matters in the Professional Negligence List are to be encouraged to utilise in any case in which the appointment of a conference between experts might reasonably be expected could achieve any one or more of the objectives expressed in para 2 of Practice Note 121, namely: "(a) The just, quick and cost effective disposal of the proceedings. (b) The identification and narrowing of issues in the proceedings during preparation for such a conference and by discussion between the experts at the conference... (c) The consequential shortening of the trial and enhanced prospects of settlement. (d) Apprising the Court of the issues for determination. (e) Binding experts to their position on issues, thereby enhancing certainty as to how the expert evidence will come out at the trial… (f) Avoiding or reducing the need for experts to attend court to give evidence." 25 Where, as here, the parties disagree as to the utility of a proposed conference, the Court must determine whether it perceives the case to be one in which it would be worthwhile to make an order. A party seeking an order is not required to prove that a conference if held will necessarily achieve any one or more of the objectives expressed in Practice Note 121, but the Court would ordinarily need to be satisfied of the existence of a reasonable expectation that this may occur. 26 The task is one which, of course, depends upon an assessment of the case in point, and in particular upon an assessment of the nature of the issues, the content of the medical opinions already available to the parties and upon any questions that might usefully be placed before the meeting for the report of the experts. 27 In recording the above extracts from the various experts in this matter, I have focussed attention on the divergent opinions as to whether or not the surgical procedure which was carried out ought to have been carried out. There are subsidiary issues such as whether the operation was performed with due care once it was undertaken, but, as I see it, the joint conference would really only prove useful in this case if it might reasonably be expected to limit issues in a significant way, such as on the question as to whether the operation was an appropriate one in the plaintiff's case. My close reading of the reports of the experts does not leave me with an expectation that the conference proposed may advance the objectives of Practice Note 121. 28 On 13 November 2001 the defendant's solicitors wrote to the plaintiff's solicitors on the subject of mediation: "…in view of the medical and factual contest between the parties, there is no merit in proceeding to mediation." 29 The letter went on: "It is for this reason that we have suggested a joint conference of experts to attempt to limit the extent of medical and clinical issues in dispute between the parties, for example one issue being whether hysterectomy was an appropriate treatment option for the condition the plaintiff was suffering. Further the alternative factual scenarios can also be the subject of expert comment as set out in the parties respective verified statements in answer to interrogatories. A conference of experts will assist in narrowing at least the clinical and medical issues between the parties and also address the alternative factual scenarios." 30 Whilst Ms Chandra developed the above stated argument in favour of the conference in her thoughtful oral submissions, to my mind there exists a clear, firm and considered divergence of opinion between the experts as to whether hysterectomy was an appropriate procedure, and this, as earlier observed, I perceive to be the most central and critical medical issue in the case. Moreover, it is to state the obvious that if a conference was ordered it would not address the critical factual issues between the plaintiff and the defendant as to what advice and warning the plaintiff was given and the plaintiff's response to such. 31 To my mind, the possible utility test as I earlier expressed it is not satisfied in all the circumstances of this case, and accordingly I have concluded that a conference should not be ordered. I therefore make the following orders:

(ii) the defendant is to pay the plaintiff's costs thereof. **********

Last Modified: 03/11/2002 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.