Brown v Simpson

CATCHWORDS: MEDICAL NEGLIGENCE - causation - appropriate standard of care - inherent risk - peer professional opinion

CASES CITED: Dobler v Kenneth Halverson & ors [2007] NSWCA 335

William John BROWN (Plaintiff) PARTIES: Dr Richard Robert SIMPSON (First defendant) NORTHERN SYDNEY CENTRAL COAST AREA HEALTH SERVICE (Second defendant)

COUNSEL: D H Hirsch (Plaintiff) D R Campbell SC - S M Kettle (Defendants)

SOLICITORS: King Street Lawyers (Plaintiff) Defendants - Frances Allpress (Defendants)

1 On 14 March 2003 Mr William John Brown had surgery for bowel cancer at Gosford District Hospital. His surgeon was Dr Richard Robert Simpson. The Northern Sydney Central Coast Area Health Service has responsibility for the operation of Gosford District Hospital.

2 In the course of the surgery the plaintiff's left, and only functioning, ureter was injured.

3 The plaintiff claimed that the injury to his ureter was the result of negligence on the part of the defendants.

4 The issues were: 1. the cause of the injury to the plaintiff's left ureter; 2. whether that injury was the result of the failure to use reasonable care and skill in the performance of colo-rectal surgery; 3. if so, whether the provisions of ss 5I and 5O of the Civil Liability Act 2002 provided a defence to the claim; and 4. the compensation, if any, to be awarded to the plaintiff.

5 There were no issues of credit in respect of any witness or the background facts of the claim. It is therefore possible to proceed without debate or analysis to a number of findings of fact.

6 The first defendant, fully qualified and with some prior experience, commenced practice as a visiting medical officer in colo-rectal surgery at Gosford District Hospital in 2002. The second defendant was responsible for the management of the Hospital.

7 The plaintiff, having been diagnosed with rectal cancer, first consulted the first defendant in December 2002. At that time his health was affected by the following conditions: Right nephrectomy in 1989, involving the removal of the right kidney and ureter Type 2 diabetes Hypo cholesterolemia Hypertension Oesophageal reflux Ischaemic heart disease Peripheral vascular disease Central obesity

The plaintiff also smoked and consumed alcohol at moderate levels.

8 The first defendant undertook some preliminary investigations to confirm the diagnosis and to check the site of the cancer. He arranged for a document to be completed to place the plaintiff on the Hospital waiting list.

9 Before proceeding with surgery the first defendant directed the plaintiff to consult with a cardiologist to confirm that he was sufficiently fit to undergo surgery. It transpired that the plaintiff required heart surgery and on 7 January 2003 he had triple vessel coronary artery bypass graft surgery. After a recovery period his cardiovascular surgeon certified him fit for colo-rectal surgery.

10 The plaintiff was admitted to the Hospital and on 14 March 2003 the first defendant performed surgery described as left hemicolectomy, ultra low anterior resection and loop ileostomy. The first defendant was assisted by an unaccredited registrar who was an advanced trainee.

11 This major abdominal surgery was carried out over a period of four hours. No complications were recorded and, after an uneventful period of recovery, the plaintiff was discharged on 21 March 2003 with an ileostomy bag. An ileostomy bag is normally required for between six and twelve weeks following surgery of this type.

12 On 23 March 2003 the plaintiff presented to Wyong Hospital with abdominal pain. He was transferred to the first defendant's care at the Hospital. An abscess was located, a drain inserted and a quantity of blood and pus removed.

13 On 2 April 2003 the plaintiff presented at Wyong Hospital with problems in passing urine and a complaint of passing urine per rectum. He was transferred to the Hospital where investigations established that a defect had developed in the medial portion of the left ureter at a site 10 cm from the left ureteric orifice. This defect was described as a uretero-colic fistula.

14 The ureter is comprised of an outer wall of muscle and an inner wall known as the urothelium. The fistula was occasioned by the breakdown of both layers on one side of the ureter.

15 Treatment and repair of this fistula proved to be problematic and extended over a lengthy period.

16 The plaintiff's contention was that the fistula was the result of diathermy injury consequent upon the use during surgery of a diathermy probe.

17 The defendants put forward a number of propositions to explain the presence of the fistula. It was emphasised for the defendants that these were possibilities only because it was not possible to state the precise mechanism by which the ureteric injury was caused.

18 They were: 1. minor trauma through traction or crush; 2. laceration; 3. infected haematoma; 4. increased ureteric pressure in a partially traumatised ureter; 5. a tiny abscess forming coincidentally close to minor trauma; 6. damage occurring in the process of placing the drain to deal with the abscess; 7. injury that failed to heal in the plaintiff's case because of factors, such as diabetes, obesity, vascular disease and cigarette smoking, which pre-disposed him to poor healing properties; 8. ischaemic injury; and 9. diathermy injury.

19 Dr Meagher was of the opinion that the most probable explanation for the fistula was some very minor trauma, in the nature of a minor tear in the muscle wall not extending through the whole of the wall which would be difficult, if not impossible, to detect even if carefully checked.

20 It was apparent from the evidence that minor trauma to various structures, including the ureter, can and does occur in the course of abdominal surgery. The first defendant explained the process involved in performing colo-rectal surgery for the removal of tumours. It is necessary to mobilise the colon by dissecting it from the peritoneum prior to the removal of that part of the colon or rectum to which the tumour is attached. In cases where the tumour is adherent to the ureter, intentional and direct trauma may be necessary. This was not necessary in the course of surgery carried out on the plaintiff.

21 The plaintiff's surgery involved the removal of the tumour and of lymph glands both of which were in a position of relative proximity to the left ureter.

22 The first defendant said that he inspected the ureter prior to closure of the abdomen to check if any injury had occurred in the course of surgery. He described the condition of the ureter as he observed it and which lead him to the conclusion that it was patent and working.

23 The proposition of minor trauma carried with it the following difficulties: 1. A full thickness injury was necessarily involved to allow for the subsequent leakage of urine. 2. Trauma sufficient to cause a full thickness injury would necessarily be more than minor and would be expected to be visible. 3. The delay in manifestation of symptoms for approximately 16 days is not explained. 4. Professor Morris said that a crush injury was improbable because no equipment was used in this area that might produce this type of injury. He said a traction injury in the course of dissection of the colon from the mesentery was improbable because the fistula comprised a limited defect on the medial side of the upper one third of the ureter.

25 All experts rejected this proposition as a possibility because a full thickness laceration would have resulted in an immediate leak.

27 Dr Meagher noted that the plaintiff was at increased risk of infection because of the development of the abscess in an area away from the ureter. He suggested that this explained the delayed development of the fistula.

28 Professor Morris said this was unlikely because the ureter was tough and not susceptible to damage from an abscess. He challenged the defendants to produce evidence of any ureteric injury consequent upon the development of an abscess. None was produced.

29 Dr Meagher's theory does not explain the full thickness breakdown in the wall of the ureter. For this reason, I prefer the opinion of Professor Morris and I reject this proposition.

Increased ureteric pressure in a partially traumatised ureter

30 Professor Morris pointed out that it was rare for the ureter to break down even when blocked by a stone. Further, there was no reason for ureteric pressure to have increased.

32 Dr Meagher acknowledged that this was an outside or remote possibility. Professor Morris thought it unlikely because of the position of the abscess.

33 Dr Hirst, urologist, reported that the abscess occurred in a position well away from the site of the fistula.

Minor injury that failed to heal because of the plaintiff's general health

35 The factors in the plaintiff's general health said to contribute to poor healing were diabetes, obesity, vascular disease and cigarette smoking.

36 This proposition required a minor full thickness injury. I have already rejected that proposition. It also involved the proposition that the minor injury failed to heal but it did not explain the absence of any immediate leak or how the alleged failure could lead to the development of a full thickness breakdown of the ureteric wall.

37 Dr Hirst stated that these co-morbidities could contribute to poor healing and delay the perforation of the ureteric wall subsequent upon a low level diathermy injury.

39 Professor Morris rejected ischaemic injury as a possibility. He said the ureteric injury had nothing to do with the plaintiff's vascular disease. Further, investigations carried out in the course of treatment of the fistula produced no evidence of ischaemic damage. Rather, the evidence was of a very localised injury.

40 Dr Meagher agreed that, although possible, ischaemic injury was unlikely in this case.

42 A diathermy probe of the type used during the surgery performed on the plaintiff was in evidence. It was described as an instrument having two functions according to the button pressed by the operator. One button provides a tool for dissecting or cutting tissue. The second button provides a tool by which heat is applied by direct or indirect means to blood vessels in order to stem bleeding. It was agreed by the medical experts that the probe is a valuable surgical tool that is required to be used with care, skill and judgment.

43 Professor Morris explained that a current is provided for the use of the probe by connecting it by a cord to a machine and placing an earth plate beneath the patient. The earth plate is connected by another cord to a generator. In this way a circuit is supplied by the generator to the probe, through the patient and back to the generator.

44 The first defendant said it was his practice only to use scissors for dissection in the region of the ureter and not the probe.

45 He used the probe for haemostasis. He said he had been trained not to use the probe closer than one centimetre to a structure such as the ureter.

46 In undertaking the surgery on the plaintiff, the probe had been operated by the registrar but, according to the first defendant, it had not been used closer than one centimetre to the ureter.

47 The first defendant said that, if it was accepted that the fistula had been caused by diathermy injury, he was unable to explain how the injury had occurred.

48 In respect of the possibilities debated by the experts, the first defendant stated: 1. He had not, in error, used the cutting function of the probe when he intended to use the coagulation function. He said he would know if such an error occurred because a different noise would sound from the probe. 2. The injury was not caused by heat transferred through metal liga clips because no clips were used to arrest bleeding on the ureter. This was confirmed by radiographs, which showed no evidence of liga clips in the vicinity of the fistula. 3. The injury was not caused by heat directed through forceps because he did not use the probe on blood vessels of the ureter. He preferred to arrest bleeding in this area by the use of pressure on sponges.

49 The first defendant accepted that it was probable that the injury occurred in the course of the surgery that he carried out. He was unable to state categorically that it was not the result of diathermy. He agreed that it was possible that he caused inadvertent diathermy injury to the plaintiff's ureter.

50 The first defendant denied that he was the source of information contained in the handwritten notes made in May 2003 on a document titled Community Nursing New Referral and which stated: ureteral burnt with diathermy.

51 Dr Meagher rejected diathermy injury on the basis that it was merely one further possible cause of the fistula. He argued that: 1. Diathermy was not required to be used in close proximity to this part of the ureter because it was distant from the site of the tumour. He subsequently agreed that the lymph glands that were removed with the tumour could have been in this area. 2. The injury must have been the result of trauma that was not detectable. The delay in the development of leakage of urine was a feature that he found difficult to explain.

52 Dr Meagher accepted that diathermy could have caused the injury if the burn had been sufficiently severe to lead to tissue necrosis. He said he was aware of one prior ureteric injury that resulted in the leak of urine well after the operation. He said this was a different type of injury but it was probably a diathermy injury.

53 Further explanation of this process was provided by Dr Morris whose opinion was that the injury involved a full thickness burn through the external muscle wall and the urothelium. He said the tissue was rendered non viable so that it broke down over time. The affected tissue then became necrotic and separated from the ureter allowing urine to leak through. In this way the fistula developed in a localised area of ureteric necrosis.

54 Professor Morris rejected the proposition that the exact cause of the injury would never be known. In his opinion, the cause was very probably a diathermy injury.

55 Dr Hirst was not able to determine decisively what had caused the injury but said it was most likely to have been low level thermal damage to the ureter during surgery. He said a sufficiently severe burn would cause tissue death and necrosis or disintegration of tissue.

56 Professor Morris and Dr Hirst agreed that diathermy damage would be excluded as a cause of the injury if the diathermy probe was not used anywhere near the site of the injury. There was evidence, however, from the first defendant that it was used up to one centimetre from this area.

57 On analysis of the potential causes of the injury suggested by the defendants, only that of diathermy injury could be considered to be more than possible.

58 Dr Meagher's opinion that diathermy injury was a possibility only was based on his understanding that the probe was not used in close proximity to the ureter. This was contrary to the evidence of the first defendant.

59 The low level but full thickness burn suggested by Professor Morris and Dr Hirst was the only rational explanation for the 16 day delay in the manifestation of symptoms.

60 This evidence has persuaded me that the probable cause of the injury to the plaintiff's left ureter was a low level full thickness burn as a result of the use of the diathermy probe.

61 The first defendant said that, if inadvertent injury was the cause, it was the result of use of the diathermy probe for haemostasis in an area from which he removed the tumour, not closer than one centimetre to the ureter and through a mechanism that he did not understand. He said he took every measure that he could to prevent injury and that it was not known exactly how a diathermy current can pass through the body.

62 The evidence indicated that there were four possible explanations for a diathermy burn: the direct application of heat to the ureter, the indirect application of heat through liga clips or forceps, channelling or inadvertence in the use of the probe in a position too close to the ureter or for too long a period.

63 The first of two of these explanations has already been dealt with and discarded because of the evidence that liga clips and forceps where not used on the ureter.

64 Dr Meagher stated that channelling of the current used to operate the probe could occur and cause injury in a part of the body remote from that to which the probe was applied. He said that diathermy worked well in most patients. In some, it did not go according to plan.

65 Professor Morris agreed that channelling of this kind could occur and result in diathermy injury. He said the injury occurred where an organ had a narrow electrical path back to the earth plate. The injury was the result of additional heating at the narrowest point of the return path to the earth plate. Professor Morris said that channelling would not occur in this case because there was a posterior path for the escape of current from the ureter and it was not the type of structure that would channel heat to a narrow point.

66 Professor Morris rejected the proposition that, although there were many benefits attaching to the use of the probe, it carried with it increased potential for occasioning damage to structures surrounding the area to which it was applied.

67 I have not been persuaded that channelling was the cause of the plaintiff's injury. I would expect that, if channelling were a recognised feature of the use of the diathermy probe such that it could affect any structure in the body in the course of surgery in an unpredictable way, even a part that is remote from the site of the surgery, there would be available some literature or other documentary evidence to support Dr Meagher's proposition. No such material was in evidence.

68 The result therefore is that I find that the injury was the result of inadvertence in the use of the diathermy probe. The issue then becomes one of whether the inadvertence was the result of the failure to exercise skill and care to the required standard. The medical experts all agreed that the use of the diathermy probe required care and skill and at times involved the exercise of fine judgment.

69 Dr Wines, urologist, pointed out that the site of the injury was visible in the course of surgery. The first defendant agreed and said that he identified the left ureter and preserved it. Dr Morris also agreed that the injury occurred at a point where the ureter was easily identified and said that with reasonable care it should always be possible to avoid injury the ureter at that level.

70 The first defendant also stated that he did not apply the probe closer to the ureter than the standard by which he had been trained, namely, one centimetre.

71 Dr Meagher was of the opinion that ureteric injury could occur even when the appropriate standard of skill and care was used. He said a diathermy injury could occur in the most experienced of hands. He said that at times it was necessary in the course of surgery that the surgeon embark on guesswork about what was or was not safe and that which was safe in the majority of persons could occasionally go wrong.

72 Dr Meagher disagreed with Dr Morris' opinion that all injuries inflicted by a diathermy probe were the result of surgical error. He said the surgery undertaken by the first defendant was difficult with a small potential for damaging the ureter.

73 Dr Meagher relied on medical literature that he said indicated that such an injury could occur, although rarely, even when diathermy was performed by experienced surgeons. He agreed that an analysis of the medical literature to which the court was referred indicated: 1. Only two of the articles related to colo-rectal surgery. 2. Of those two, one related to ischaemic injury, which he had accepted as unlikely in this case. 3. The other article related to laparoscopic colo-rectal surgery, which was not done in this case. He agreed with Professor Morris that ureteric injury was more likely with laparoscopic surgery. 4. No article reported diathermy injury to the ureter in the course of colo-rectal surgery such as that performed on the plaintiff.

74 Dr Morris' opinion was that inadvertence was inconsistent with the use of care and skill. This was particularly so in this case where the plaintiff had only one kidney so that preservation of the ureter was very important. He stated that it was a judgment call based on experience as to how close to the ureter it was safe to go. He said judgment was also required in deciding how long the probe was to be applied in any particular part of the body.

75 Dr Morris accepted that ureteric injury was a rare complication of abdominal surgery but did not accept that this generalisation applied to diathermy injury to the ureter in the course of a lower anterior resection operation that was carried out with reasonable care and skill. In his opinion the injury suffered by the plaintiff in this case was preventable by the use of care and skill by those performing the operation.

76 He said the margin for error in diathermy was very, very small and it was important that the surgeon err on the side of caution and ensure that the assistant knew what he or she was doing.

77 I find that the cause of the injury to the plaintiff's left ureter was an inadvertent diathermy burn.

78 The material available did not allow me to decide whether the burn was the result of the use of the diathermy probe in a position that was closer than one centimetre from the site of the injury or whether it was applied at an appropriate distance but for a period that was too long.

79 It has not been easy to decide whether this inadvertence should be classified as a breach of the defendants' duty of care to the plaintiff. The surgery involved was major, complex and it extended over a number of hours. Furthermore, the surgery was successful in dealing with the plaintiff's cancer.

80 The troublesome question was what was a reasonable standard of care in circumstances where it was agreed that the exercise of fine judgment was required. In this respect I considered in depth whether this was a case where some latitude should be allowed before concluding that the evidence established that there was a departure from an acceptable professional standard such that a finding of breach of the duty of care should be made.

81 I have concluded that in the particular circumstances of this case the standard proposed by the plaintiff was reasonable. Those circumstances were: 1. The absence of evidence of inadvertence in the use of a diathermy probe causing similar injury in the course of colo-rectal surgery of the type undertaken by the first defendant. 2. The absence of evidence to support the contention that in the circumstances of this operation, the injury was caused by some unpredictable mechanism in the use of the diathermy probe. 3. The need for particular caution to be exercised to protect the plaintiff's one functioning ureter. 4. I prefer the approach of Dr Morris of a standard requiring caution on the part of the surgeon rather than the guesswork approach of Dr Meagher.

82 I find the defendants in breach of their duty of care to the plaintiff.

83 The defendants relied on ss 5I and 5O of the Civil Liability Act 2002.

84 S 5I deals with inherent risk, defined as a risk of something occurring that cannot be avoided by the exercise of reasonable care and skill.

85 I do not accept that the evidence established that the risk of ureteric injury was inherent to colo-rectal surgery. It was apparent that the literature to which Dr Meagher referred did not relate to injuries suffered through diathermy in the course of the type of surgery that was performed on the plaintiff. Further, the warning that Dr Simpson did give to Mr Brown appeared to relate to injury that could not be avoided with the exercise of the appropriate level of care.

86 S 5O provides a defence to a claim of professional negligence if it is established that the professional 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. Peer professional opinion is required to be rational for the defence to be made out.

87 Justice Giles in Dobler v Kenneth Halverson & Ors [2007] NSWCA 335 at [103] identified the question raised by this provision to be whether the defendants established a professional practice widely accepted by rational peer professional opinion. He said the question was not necessarily one of preferring the evidence of one medical expert to that of another.

88 The defendants relied on the evidence of Dr Meagher to the effect that diathermy injury could happen even in the most experienced of hands. Dr Meagher also said that, based on the list of assumptions provided to him for the purposes of his opinion, the first defendant performed the surgery in a manner that was widely accepted in Australia by his colorectal peers and in a manner that he regarded as competent professional surgical practice.

89 The assumptions referred to by Dr Meagher formed part of Exhibit 1. They were, effectively, an unsworn statement of the first defendant. The relevant parts were: 19. Dr Simpson then discussed the ureter and described that it was a narrow tube which transported the urine from the kidney to the bladder. Dr Simpson informed Mr Brown that it was in close proximity to where they were operating, and that it was important for him to identify the ureter and preserve it, but if in the unfortunate and rare event it was injured Dr Simpson hoped to notice that he had injured it at the time of the operation and immediately arrange for a urologist to repair it at that time. Dr Simpson also advised Mr Brown that if the ureter is damaged and requires repair it can lead to a narrowing of the ureter and there may be the requirement for subsequent surgical procedures. Dr Simpson also informed Mr Brown that the risk of ureteric injury is significantly less than that of splenic injury. 36. Dr Simpson did not a use diathermy probe to stop the bleeding in the immediate area of the ureter. Dr Simpson preferred to put pressure on a bleeding site in the first instance. If this is unsuccessful he uses a liga clip being mindful at all times of the proximity of the clip to the ureter. Dr Simpson uses a monopolar diathermy probe during the procedure to achieve haemostasis in areas not immediate to the ureter.

90 Dr Meagher's opinion was based upon an assumption that the probe was not used in the immediate area of the ureter. I have already referred to the evidence of Dr Simpson that the tumour was in fact close to the site of the ureteric injury and that he used the probe after removal of the tumour for the purpose of haemostasis as close as one centimetre from the ureter.

91 Dr Meagher did not address the question of whether peer professional opinion would accept as competent the inadvertent injury to the ureter by the use of the probe for haemostasis in close proximity to the plaintiff's one functioning, and identified, ureter..

92 I find that the defence provided by s 5O of the Act has not been made out.

93 At the time the surgery was performed the plaintiff was 65 years old. He is now 69. His prior medical history has already been noted. He retired on grounds of ill health in 1991.

94 He lived at Gorokan with his wife of 49 years, Mrs Beryl Brown. They had 19 grandchildren and great grandchildren. The plaintiff listed his activities as fishing; swimming; ball games; tennis; dancing; caravanning and attending at the local club. He played competition bowls twice a week and enjoyed the occasional pre-match barbeque. He looked after his garden, which included a vegetable garden.

95 The plaintiff also said that he mowed his lawn, painted his house and attended to matters of house maintenance. He shopped twice a week with Mrs Brown. He said that he and Mrs Brown enjoyed an active sexual relationship.

96 The plaintiff stated that, notwithstanding his various medical conditions, he could undertake all of these activities without difficulty. His only restrictions related to his back problems that prevented him from lifting heavy items.

97 The plaintiff described his life in the two and one half years following surgery in March 2003 as miserable. His activities ceased, his garden was abandoned, the tubes and bags to which he was attached disturbed his sleep and he slept in a room separately from Mrs Brown. Their sexual relations ceased.

98 The equipment attached to his body during this period comprised: 1. The ileostomy bag attached to one side of his body. In ordinary circumstances, it would be expected that this bag would be removed within 6 to12 weeks of colo-rectal surgery. The bag filled up to two or three times a day. When it filled it was necessary to empty or replace it. 2. The loop nephrostomy inserted through his back to connect to his kidney and then out through his body again, giving the appearance of a handle. A tube was attached to this loop to deliver urine to another bag. The tube was two to three feet long. The bag was emptied twice a day. It required disinfection overnight so that it could be re-used. Disinfection was attended to by Mrs Brown. 3. A suprapubic catheter with a third attached by a tube about two feet long. It was provided as a safety device in case the nephrostomy loop failed. 4. A piece of tubing stitched into his rectum for about one month.

99 Needless to say, the plaintiff found these attachments extremely uncomfortable. He said he was also embarrassed to be seen with them. He did not like walking around with the bags on him. The bags provided for the collection of urine were disguised by placing them into a shopping bags. The plaintiff carried one such bag as if it were a handbag so that he looked like a girl.

100 As a result he stopped going to his club, sat in the car at the shops and missed two family weddings. He was unable to visit his granddaughter when she was in hospital because he could not travel. He was unable to drive. He was unable to play with his grandchildren.

101 In the course of his many hospitalisations he became infected with methicillin resistant staphylococcus aureus. As a result he was placed last on the list of patients to proceed to surgery. On one occasion his surgery was deferred when the operating surgeon ran out of time.

102 The plaintiff has suffered infections causing him discomfort in his penis and an aching when going to the toilet. He said these infections continue to occur, the last having been two weeks prior to the hearing. He requires medication to deal with these infections.

103 In the course of his recovery period, the plaintiff developed a significant pressure sore for which two months of treatment by the community nurse was required.

104 The plaintiff has permanent scars on his torso as a result of the attachment of the various tubes and bags.

105 Mrs Brown said that the plaintiff has become withdrawn, depressed and he shuts her out. She said that in the period between 30 June 2003 and 15 September 2003 the plaintiff was very weak and unable to do anything for himself. Their son was involved in trying to assist in mobilising him.

106 Medical evidence indicated that surgery was required on 11 further occasions in order to treat the fistula. There were multiple further hospital admissions and numerous attendances on medical practitioners for various complications including replacement of the blocked ureteric stent, urinary tract and kidney infections and pressure sores.

107 The ileostomy was closed in August 2005. In the ordinary course, it would be expected that it would have been closed by not later than end of May 2003.

108 The loop nephrostomy was in place for about 2.5 years. The suprapubic catheter was in place for about 2.5 years.

109 The medical evidence did not support the plaintiff's claims of impotence arising out of the complications of his colo-rectal surgery. Nor was there evidence that the plaintiff was rejected as a candidate for knee replacement surgery because of the consequences of these complications. This situation was the result of the plaintiff's cardiac and peripheral vascular conditions.

110 The plaintiff's claim therefore must necessarily concentrate on the 2.5 year recovery period. It was accepted by the defendants that this was a period of pain and misery for the plaintiff. The defendants rejected the proposition that there was any ongoing medical condition related to this period.

111 The plaintiff stated that he continues to suffer from urinary infections. Mrs Brown said the plaintiff continues to be withdrawn and isolated. There was no medical evidence dealing with either of these continuing features of the plaintiff's life.

112 Having regard to the very serious consequences to the plaintiff of this complication arising from the colo-rectal surgery, I have assessed his non-economic loss at 40% of a most extreme case, allowing him an award of $176,800 on this head of damage.

113 It was clear that a considerable amount of personal and domestic care was required during the 2.5 year period of recovery.

114 Mrs Brown gave evidence of the tasks that she was required to undertake on the plaintiff's behalf. They included the extensive daily task of disinfection of the bags, the need to glue on a fresh ileostomy bag daily after showering, the need for daily disinfection of the plaintiff's bathroom floor and chair, disinfection of the toilet and hand basin after emptying the bags, the extra laundry involved and assistance with salt baths provided to treat the MRSA infection.

115 Mrs Brown confirmed that an additional single bed and mattress were purchased at a cost of $300. The single bed was necessary to allow for the bags and tubing to be hung over its side.

116 The periods for which a claim is made for gratuitous care are: 1. 30.6.2003 to 15.9.2003 - 7.5 weeks for the maximum allowable of 40 hours per week. This was a period when the plaintiff was particularly unwell. The calculation excludes periods of hospitalisation and it was agreed between the parties that the sum of $5,865 should be allowed. 2. 21.5.2003 - 10.6.03 - 3.1 weeks 3. 16.9.03 - 19.7.05 - 96 weeks

117 The defendants disputed the claims made by the plaintiff in respect of the two latter periods. In general it was argued that the plaintiff's pre-existing medical conditions would, in any event, have generated a need for assistance. Particular reference was made to the extensive osteoarthritic condition of the plaintiff's knees. There was no evidence that during the 2.5 year period for which an allowance for care is claimed, apart from management of his medication regime, these conditions generated the need for assistance detailed in Ms Claudia Walker's report. Mrs Brown was not challenged on her evidence that Ms Walker's estimates accurately set out the time she devoted to the care of the plaintiff during these periods. The difference in the hours claimed in these periods and the 7.5 weeks which are agreed between the parties was an additional three hours for the daily washing of bed linen. The defendants did not explain why they accepted the need for more than 40 hours of assistance during this period but rejected it at other times when the plaintiff was not fully bed ridden.

118 The 3.1 weeks between 21.5.03 and 10.6.03 was a period in which the plaintiff's condition progressively deteriorated. I am satisfied that his significant debilitation during this period reasonably required the assistance detailed by Ms Walker and that it is appropriate to allow for that assistance the maximum period of 40 hours per week. I therefore allow the amount claimed of $2,530.26.

119 The 96 weeks between 16.9.03 and 19.7.05 was similarly a period when the plaintiff's condition, although stable, was such that he continued to require the assistance detailed by Ms Walker as confirmed by Mrs Brown.

120 The defendants noted that during this period the plaintiff was hospitalised for periods totalling 3.5 weeks and that community nursing assistance was provided. The defendants appeared to proceed on the assumption that no care was required while the plaintiff was in hospital. I do not accept that this was the case, particularly since the plaintiff was a public hospital patient.

121 I have taken account of these features as well as the pre-injury requirement for management of medication. I have reduced the amount claimed for this period to $74,000.

123 The parties agreed that a sum of $9,589.53 should be allowed for past out of pocket expenses.

125 Verdict and judgment for the plaintiff in the sum of $268,784.79.

126 The defendants are to pay the plaintiff's costs of the proceedings. The operation of this order is suspended for 14 days to allow either party to list the matter for further argument.

127 Exhibits will be retained for 28 days or until further order.

By consent the costs order made in paragraph 126 of the reasons for Judgment published on 22.4.08 is amended to read the defendants are to pay the plaintiff's costs of the proceedings on a party party basis up to and including 22.5.07 and thereafter on an indemnity basis.

15/05/2008 - By consent order made 13.5.08 - Paragraph(s) 126

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