BUSTOS v HAIR TRANSPLANT PTY LTD & ANOR

Court of Appeal (NSW)|1997-03-12|Before: Gleeson CJ

BUSTOS v HAIR TRANSPLANT PTY LTD & ANOR SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

GLEESON CJ, POWELL and BEAZLEY JJA Wednesday 12 March 1997, 15 April 1997 [1997] NSWCA 55

APPEAL - MEDICAL NEGLIGENCE - Alleged failure to warn of material risks of operation - No error in findings of trial judge - Appeal dismissed - Rogers v Whitaker (1992) 175 CLR 479 applied.

The background to the litigation may be summarised as follows.

The alleged negligence related to hair transplant operations performed upon the appellant by the respondent in October and November 1982. The appellant's action was commenced in 1986, and was not brought on for hearing until late 1994.

In early 1982, when he was aged 33, the appellant was concerned about his receding hairline. He was exhibiting signs of baldness, and was extremely sensitive about his condition. The appellant, who had been born in Argentina, but had subsequently come to live in Australia, returned to Argentina on a holiday. He was impressed by the results of a hair transplant operation which had been performed upon one of his uncles in Argentina. The uncle's hair transplant had involved a procedure known as the Juri flap; a technique which had been developed by an Argentinian, Dr Juri.

When the appellant returned to Australia, he contacted an organization which carried out hair transplants. The respondent's services were used in the course of that business. The appellant enquired whether the Juri flap technique was known to the respondent. He was told that it was, and that the respondent could conduct such an operation upon him. The procedure was to be conducted in two stages, under local anaesthetic. It involved removing skin from the side of the skull, where it bore hair, and bringing it forwards across the front of the scalp.

There was medical evidence at the trial concerning this technique, which in later years fell into disfavour because it produced an unacceptable number of dissatisfied clients. The dissatisfaction seems to have been with the cosmetic results. However, Cooper DCJ found that in late 1982 it was regarded as an appropriate and acceptable procedure. There is no challenge to that finding.

The operations conducted upon the appellant in 1982 by Dr Wearne, according to the Juri flap technique, achieved a limited degree of success. The two principal problems experienced by the appellant both related to matters about which the judge found the appellant had been warned by Dr Wearne. There was drooping on the left side of his face, and the flap of skin taken from the side of his head

had not been able to be stretched completely across the top of his head. Ultimately, the drooping effect was largely corrected by remedial surgery undertaken in 1986.

One of the difficulties which confronted Cooper DCJ concerned the evaluation of the appellant's evidence. The appellant had suffered many personal and business problems over the years, and had required psychiatric treatment. By the time the action came on for trial, twelve years had elapsed since the operations. It appeared that none of the witnesses had an accurate recollection of what had been said leading up to the 1982 operations. Cooper DCJ found that the evidence of the appellant, although sincere, was unreliable. Dr Wearne, for his part, did not profess to be able to remember in any detail what he had said to the appellant, and his evidence, given without objection, was based largely upon his ordinary practice.

All of the allegations made by the appellant against Dr Wearne at the trial failed, with one exception.

The appellant complained that Dr Wearne was negligent in the manner in which he performed the operations upon the appellant. In that respect, the appellant complained of three matters. The first complaint was that the flap did not cover the whole of the frontal hairline, but extended only part of the way across the hairline. The second complaint was that the flap was positioned too low on the forehead. The third complaint was that the anaesthetic used was inadequate.

As to the first complaint, it was common ground that the flap did not extend fully across the frontal hairline. Dr Wearne explained why this had happened. There was expert medical evidence which supported the explanation of Dr Wearne, and which demonstrated that such a thing could occur without negligence. The preponderance of medical opinion was that the matter of which the appellant was complaining was not the consequence of lack of due care on the part of the surgeon. Cooper DCJ concluded that the evidence failed to satisfy him that there was in this respect any negligence on the part of Dr Wearne.

As to the second complaint, Dr Wearne said that the position of the flap was not too low, but was where he had indicated to the appellant it would be. There was independent expert medical evidence that the position of the flap was not too low. In this respect also, Cooper DCJ was not satisfied that there was any negligence on the part of Dr Wearne.

It was in relation to the third complaint that the appellant was successful at the trial. Dr Wearne acted both as surgeon and anaesthetist. It was common ground that, during the course of the operation in November 1982, the appellant experienced substantial pain resulting from the fact that the anaesthetic wore off whilst the procedure was still being conducted. When that occurred, Dr Wearne administered a supplementary dose of anaesthetic. Cooper DCJ held that the fact the original anaesthetic had worn off was due to the failure of Dr Wearne constantly to monitor the level of the appellant's an aesthetisation, and that this in turn involved negligence on the part of Dr Wearne. His Honour assessed damages for pain and suffering at $2,000. However, he did not consider that any of the other matters of which the appellant complained arose from this negligent act of Dr Wearne.

On this appeal, the appellant sought to overturn the findings of Cooper DCJ in relation to the first two complaints, and argued that the damages awarded in respect of the third complaint were inadequate.

URJ BUSTOS v HAIR TRANSPLANT PTY LTD & ANOR (Gleeson CJ) 3

As senior counsel for the appellant acknowledged, the primary difficulty in the way of the appellant's argument in respect of the first two complaints is that there was undoubtedly medical opinion, which Cooper DCJ was entitled to accept, which supported his conclusion in favour of Dr Wearne. It is unnecessary for present purposes to go into the detail of that opinion, which is referred to in reasons for judgment of Cooper DCJ. It suffices to say that, in the light of that evidence, it has not been demonstrated that this court should interfere with the findings of fact made by the trial judge.

As to the assessment of damages at $2,000 in relation to the third matter of complaint, no successful attack has been made upon the findings of fact made at first instance, and no error has been demonstrated in the assessment of general damages. On the facts found, which have not been successfully disputed, the appellant suffered a painful and unpleasant experience, but it was of short duration, and without permanent consequence.

The principal arguments in this appeal have been directed towards a different aspect of the case, to which I shall now turn.

The appellant also sued Dr Wearne on the basis of a failure to warn of the risks associated with the Juri flap procedure. This aspect of the case turned upon the principles stated by the High Court in Rogers v Whitaker (1992) 175 CLR 479.

Cooper DCJ found that there were a number of risks associated with the procedure. His Honour expressed that finding by saying that it was common ground, (by which he meant it was not disputed in argument), that inherent in such a procedure were ten complications which he listed. It will be necessary to return to that list. However, after an examination of the evidence, the judge reached two conclusions of fact, both of which the appellant must displace in order to succeed in this appeal. First, after relating the evidence of Dr Wearne, and rejecting the evidence of the appellant as being coloured and unreliable, Cooper DCJ concluded that he was not satisfied on the balance of probabilities that Dr Wearne had failed adequately to advise the appellant of the risks involved in the procedure. Further, he held that, even if he had been so satisfied, he would not have been satisfied on the balance of probabilities that the appellant would not have undergone the operations.

The second of those conclusions was based in large part upon the evidence of the appellant's determination to undergo the procedure. It was the appellant, not Dr Wearne, who originally suggested the Juri flap procedure. He suggested it because of the success it had achieved for his uncle in Argentina. The trial judge found that the appellant was keen to the point of desperation to undergo the procedure. There was ample evidence to support that finding.

There was no suggestion, at the trial or on this appeal, that, in the light of medical knowledge and experience at the time, Dr Wearne should have attempted to discourage the appellant from undergoing the procedure. As will appear, the evidence showed that some of the risks of which it is said the appellant should have been informed were not of a high order of probability. Indeed, a number of the risks did not eventuate.

I turn now to the manner in which the appellant seeks to attack these two conclusions of fact, either of which, unless it can be displaced, is fatal to his case.

The risks involved in the Juri flap procedure, which were found by Cooper DCJ to be "material risks" within the meaning of that expression as explained in Rogers v Whitaker (1992) 175 CLR at 490, were apparently collected by him from various parts of the medical evidence and were itemised as follows:

"1. The entire flap can be lost through necrosis. This is a remote possibility.

Necrosis can incur at the tip, increasing towards the front. This is a slightly less remote possibility.

It is inevitable that there will be drooping of the eye.

It is inevitable that there will be swelling, pain and bruising Sometimes there can be black eyes with oozing of the wound. These are usually of temporary duration.

Because the flap being transposed is attached to the scalp at one end where the artery is and is then bent through an angle of about 150 degrees, it is inevitable that there will be a lump of skin remaining called a "dog ear" This often disappears naturally, but, if it does not, it can easily be excised surgically after a delay of about three months.

There is a possibility that the flap may not go far enough to cover the whole of the forehead.

Inherent in the surgery is scarring. This is, however, capable of being covered by the hair.

The surgery involves cutting the occipito frontalis aponeurosis which can lead to a drooping appearance in the forehead and /or eyebrows. In some cases this can be corrected by further surgery.

The surgery involves cutting nerves which can cause numbness of temporary or permanent duration. It can give rise to neuromas which are painful. According to the evidence of Dr Shiell, which I accept on this point, the pain usually disappears within two years."

The first three of those risks did not eventuate. This might have given rise to an interesting question as to their relevance, if the appellant had successfully displaced the finding of the trial judge to the effect that there was adequate warning of risks. The problem of causation in such a situation has been considered in a number of cases (eg Gover v South Australia & Perriam (1985) 39 SASR 543, Hribar v Wells (1995) 64 SASR 129, Banque Bruxelles Lambert SA v Eagle Star Insurance Co Ltd [1995] 2 WLR 607, Chappel v Hart (Court of Appeal, New South Wales, unreported 24 December 1996). However, for the reasons given below, the issue does not arise in the present case.

It was not suggested, of course, that in order adequately to convey the risks to the appellant, Dr Wearne would have had to use the language set out above. Dr Wearne's duty was to convey an adequate warning to the appellant in terms which the appellant would understand.

It is convenient to begin a consideration of the evidence relating to this aspect of the appellant's case by referring to item 10 in the above list of possible complications. This was the matter to which most attention was directed in argument on the appeal, although a reading of the evidence suggests that it was given less prominence at the trial.

Although there was some dispute as to whether the appellant's problems in relation to the matters, the subject of item 10, resulted from the 1982 procedures, or the 1986 corrective surgery, the preponderance of evidence suggests that they resulted from the 1982 procedures. The trial judge made no express finding on that point, but this ought to be accepted in the appellant's favour.

The appellant complained, and still complains, both of numbness and nerve pain in areas of the scalp where nerves were cut. The appellant has received treatment for this in the form of analgesics.

URJ BUSTOS v HAIR TRANSPLANT PTY LTD & ANOR (Gleeson CJ) 5

Cooper DCJ accepted evidence of Dr Wearne that his usual practice was to say "that with all hair transplants nerves will be divided and numbness will result, and after a time, there will be a level of adaptation."

It is argued on behalf of the appellant that such a warning, which Cooper DCJ was prepared to accept had been given, was all very well as far as it went, but it did not go far enough. It did not cover the risk that the cutting of nerves could "give rise to neuromas which are painful."

Senior counsel for the appellant observed, correctly, that what was involved

here was elective cosmetic surgery, not surgery which was required for medical treatment. That is the context in which a failure to warn of the risk of possible post-operative pain, either of temporary or permanent duration, needs to be evaluated.

It is true that the finding of Cooper DCJ, that the appellant had been adequately warned of the risk referred to in item 10, did not mention that Dr Wearne's evidence of his practice indicated that he did not refer to the possibility of painful neuromas.

In dealing with this point separately, I am not intending to suggest that the various arguments advanced by way of criticism of the trial judge ought to be isolated. Their combined effect is also of importance. Even so, an evaluation of their merits requires consideration one by one.

It is necessary at this point to go into a little more detail concerning the evidence about neuromas, and the pain suffered by the appellant. It is important to keep this issue in perspective, in order to understand the approach which the trial judge took to his evaluation of the evidence and his findings of fact.

The evidence was that the possibility of neuromas resulting from the cutting of nerves is associated with any cutting of the skin and, therefore, with virtually all surgery. That is not to say, of course, that the risk does not vary between different parts of the body.

The nature of the problem was explained by a number of the medical witnesses. Dr Giles said that a neuroma is a scar in a nerve which can develop any time a nerve is divided.

"Tf skin is cut or incised to full thickness depth, there is always the risk of cutting the cutaneous nerves. This may then give rise to neuromas which are often tender or painful. Cutaneous nerves as such run in the skin and therefore they may be transected when the skin is incised or cut. In the raising of long skin flaps, cutaneous nerves are often transected or cut. Sometimes, these transected cutaneous nerves give rise to painful neuromas."

Dr Shiell gave the following evidence in relation to neuromas:

"Q. When, neuromas form, neuromas are the type of results that cause the pain to persist after twelve months, is that what you were saying?

A. It is nearly always highly specific. The patient has no pain anywhere else on the scalp except at a point directly over the course of one of these scalp nerves and is used generally at the point where the nerve intersects the scalp. You have a nerve running up and down the scalp and you have a scarring horizontally and at the point where these two meet you have this acutely tender spot and that is known as a neuroma."

The medical evidence, however, was to the effect that the likelihood of the occurrence of neuromas was very small.

Dr Shiell gave evidence that in at least 15,000 operations he had cut the same nerves as Dr Wearne cut in the appellant's scalp. He said that there had been complaints of pain more than a year after the operation in about one dozen of those cases, and complaints of pain more than two years after the operation in about two cases out of the 15,000.

Dr Wearne gave evidence that in 1982 he had previously performed thousands of operations that involved cutting the skin, and he knew of none of those patients developing neuromas.

An expert witness called on behalf of the appellant, Dr Dan, a neurosurgeon, said the following in a report:

"Because the nerves run in the skin in the region where the surgery was being performed, it is inevitable that some involvement of those nerves will occur in any surgical procedure. Fortunately in the vast majority of people no significant consequences arise. In a small proportion of people, however, neuralgic pains can, occur following surgical manoeuvres, including stretching or cutting of the nerves. I believe that this is the situation, with Mr Bustos."

That is the evidentiary background against which Cooper DCJ made his findings. He obviously concluded that it was sufficient for the respondent to warn the appellant of the possibility of numbness resulting from the cutting of nerves; and that it was unnecessary for him to warn the appellant about the matter of neuromas. He also concluded that even if the appellant had been warned about the possibility of neuromas, he would have gone ahead with the procedure.

Whilst the first of those conclusions may be debatable, the second was, on the evidence, clearly justified.

As to the first conclusion, whilst Rogers v Whitaker establishes that the issue is not resolved by medical opinion, nevertheless it is material to note that none of the medical experts said that the appellant should have been warned about neuromas. In the light of the medical evidence it is easy to understand why Cooper DCJ would not have regarded the failure to warn of the risk of neuromas, as distinct from numbness, as significant. The challenge to his Honour's conclusion, in this respect, has not been made good.

The challenge to the second conclusion is even more difficult to sustain.

If the respondent had discussed the possibility of neuromas with the appellant, then, consistently with the evidence, he would have been entirely justified in giving information of the nature set out above. On the evidence, an adequate warning about the possibility of neuromas would have included information that there is a risk of their occurrence in any surgical procedure involving cutting of nerves, that the cutting of skin commonly caused cutting of nerves, that the risk of painful neuromas is very low, that in the vast majority of people no significant consequences arise, and that in the thousands of patients upon whom he had operated, Dr Wearne had never encountered a single case.

Bearing in mind the evidence as to the appellant's keenness to undergo this procedure, and the medical evidence about the nature of neuromas, and the degree of risk of their occurrence, the trial judge's conclusion that a warning about neuromas would not have prevented the appellant going ahead with the operation has not been shown to be in error.

I turn now to the other matters of a possible warning, bearing in mind that it is the combined effect of all appropriate warnings that has to be considered, and bearing also in mind that the case concerns elective, cosmetic surgery.

URJ BUSTOS v HAIR TRANSPLANT PTY LTD & ANOR (Gleeson CJ) 7

Dr Wearne said that his practice was to discuss in detail with the patient the possibility that the flap might not be able to be stretched completely across the head. The reason for this was that, if it appeared, during the procedure, that undue stretching of the flap might cause harm to the patient, then he would choose to avoid that harm even though the cosmetic result would be imperfect. He said he would warn the patient "from the word go" of furrowing of the forehead, and of the likelihood of a dog ear effect where the flap was turned over. That effect could be rectified by later surgery. To revert to a matter already considered, he would tell all patients that nerves would have to be divided and that an area of numbness would result. He would discuss the question of blood loss. He would warn of the possibility of a drooping effect.

Dr Giles, a medical expert called by the appellant, said that an adequate warning would be one that communicated to the patient that the flap might not reach the other side, that there could be sensory changes, that there could be blood loss, that there could be a dog ear effect, and that the procedure may require later corrective surgery. I have already referred to the significance of such evidence in the light of Rogers v Whitaker.

Senior counsel for the appellant acknowledges that the trial judge was justified, on the evidence, in finding that the appellant was warned of items 5, 6, 7, 8 and 9 in the above list of possible "complications". Item 10 has already been considered. As to item 4, the evidence supports the view that it is not really separate from item 9. (Indeed, considered separately, it is far from clear what item 4 means. It cannot be meant to be understood literally).

Items | and 2, refer to risks that are described as "remote" and "slightly less remote". The respondent was under no obligation to speak in terms of "necrosis". He said he warned the appellant of the risk of 'losing some of the flap in transposition, and that this was his way of explaining necrosis. He also explained to the appellant the need to take certain precautions to avoid disaster", which could include total necrosis. The exact meaning of item 3 is not clear, and the subject was not referred to by any of the appellant's medical experts. No such risk actually eventuated.

Once again, however, it appears to be comprehended by the references to a "disaster". The respondent said he explained the importance of maintaining the blood supply not only to the flap, but also to the remaining scalp.

The list of items set out by Cooper DCJ was an attempt by him, in a convenient form, to state comprehensively everything that emerged in the evidence as a material risk. No-one suggested that Dr Wearne should have gone through such a list, seriatim, and it would have been quite inappropriate to use some of the terms there set out. In assessing what is an adequate warning of material risks for a surgeon to give a patient, a trial judge is entitled to assess the matter in a practical and common sense manner, as I believe Cooper DCJ did in the present case.

The conclusion of fact relating to the adequacy of the warnings has not been shown to be in error.

Nor has it been shown that the court should interfere with the finding that the appellant had failed to establish that he would not have undergone the operation if adequate warnings had been given.

In that respect it is worth repeating what Cooper DCJ said in his reasons:

'To my mind the probabilities are not to be ascertained by a close examination of the words uttered by the respective witnesses in the witness box nor by a painstaking examination of the documents in evidence. The key lies in the circumstances which led the plaintiff to the door of the Hair Transplant Clinic in the first place.

He was a young man of almost 33. His hairline had been receding for the past 6 to 8 years. He wanted to improve his appearance so that he looked younger. On top of this he was the main waiter in his own restaurant which, at that stage was doing well. He believed that an improvement in his appearance would help him in his business. In short he wanted to look younger and more handsome. Having seen what he regarded as the vast improvement in the appearance of his uncle in March/April 1982 he wanted to achieve the same transformation. His uncle had undergone the Juri flap hair transplant and that is what he wanted.

Accordingly it was he who nominated that form of treatment to the first defendant and to the second defendant. It was neither of them who nominated it to him.

The evidence comfortably satisfies me on balance of probabilities that he was keen to the point of desperation to undergo the procedures. The only thing that would stop him was if it were effectively brought home to him that his appearance would be worse after the operation than before it. The evidence does not satisfy me that, in the light of medical experience at October/November 1982 such a prognosis was reasonable. It was reasonable to warn of the matters referred to earlier.

The important matter is that the plaintiff had in his mind's eye the picture of his rejuvenated uncle and it was this picture which motivated him to undergo the operations regardless of what warnings Dr Wearne or anyone else gave him."

It is in that context that the risks of the procedure explained in the medical evidence, their degree of probability, and the likelihood that they would have deflected the appellant from his chosen course, fell to be evaluated. I see no error in the conclusion reached by the trial judge.

Powell JA I agree with Gleeson CJ. Beazley JA BEAZLEY JA: I agree with Gleeson CJ.

Counsel for the Appellant: C Branson QC, T Boyd Counsel for the Respondent: I Butcher

Solicitors for the Respondent: Blake Dawson Waldron

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