Hawes v Holley

Hawes v Holley - [2008] NSWDC 147 - NSWDC 2008 case summary — Zoe

[17]

8 The most concern the plaintiff had, during the period before the stoma was closed by Dr Holley and the colostomy bag removed, related, as she said, to "my stomach, my back, and just the way I was feeling in general". Another concern was that her weight reduced from 80 kilograms before the surgery by Professor Ghabrial to around 60 kilograms when Dr Holley closed the stoma; the lowest weight after the abdominal surgery was 56 or 57 kilograms but she now weighed 64 or 65 kilograms. Of importance too for the plaintiff was that before her latest surgery she enjoyed cooking and food preparation but since then she had lost all interest in food and did not enjoy eating. Now, the plaintiff said she ate only once daily and with the aversion to food could not prepare meals for the family or do the shopping. As to her capacity to return to employment, such as the bus driving she had done before, the plaintiff saw no impediment from her back condition but otherwise said problems were created by "the way my stomach carries on through the day … the reaction to the foods that I eat to stressful events". Those problems were identified by her in evidence in these ways: "It doesn't matter what food I put in my mouth. I instantly have a reaction to my stomach where it swells and I have sensations of nausea and a bloating and a very discomfort feeling, and depending on stressful events, I'm driving I tend to be very jittery and I need to pull over and regather myself to the emotions that I occur when these stressful events happen. … It (stomach) swells noticeably to the point where I have to be careful in the clothing that I wear daily. … Revolting smells (from the passing of wind). I have the embarrassment of being around people with the belching and the breaking of wind. … I tend to get the diarrhoea … it will just happen and I need to use the toilet facilities on any number of occasions through the day, depending on events - stressful events that might occur. … Well, if I go out in society I would average them (panic attacks) once every time … … I thought I was a confident person, very approachable and very easy to get along with. I had a lot of trust in people … [Now] I don't trust anybody … I second-guess everything which does affect my driving because I haven't got that confidence any more. … Before I could control my emotions, now I can't. I can go from feeling very angry or crying uncontrollably. I've lost the control. … It's a lot worse at the moment … my stomach is like a volcano in there that's ready to erupt with - every day, and it feels like I've got butterflies in there flapping inside my stomach. … It can go from one extreme to the other and I can be quite constipated and the onset of having to deal with something the diarrhoea just takes over. … I have experienced pain up my rectum when it's in a spasm … I had the very tightness of my whole stomach, I have experienced pain on the right lower side of my abdomen, very sharp pain in that area. I have a burning sensation and a, it contracts and it feels like it just gets tighter and tighter and it starts to grow and in getting bigger - my stomach. … [It happens daily]. It interferes with the comfortability of my driving with the seatbelt and, just to know, well, unwell, and over, a feeling of unwell which I need to pull over and get out of the car and actually try and relieve some wind."

[44]

(4) Peer professional opinion does not have to be universally accepted to be considered widely accepted." 34 The operation of s 5O was considered by the Court of Appeal in Dobler v Kenneth Halverson [2007] NSWCA 335 in which Giles JA, with whom Ipp and Basten JJA agreed, said (in paras 59 - 61): "59. Section 5O was amongst the tort law reforms consequent on the Review of Law of Negligence Final Report, September 2002 ('the Review') . It was intended to introduce a modified Bolam principle. Its importance does not lie so much in questions of onus of proof as in who determines the standard of care. Commonly … there will be expert evidence called by the plaintiff to the effect that the defendant's conduct fell short of acceptable professional practice and expert evidence called by the defendant that it did not; the expert evidence may or may not recognise that the opposing professional practice is one which has some currency. Apart from s 5O the Court would determine the standard of care, guided by the evidence of acceptable professional practice. It would not be obliged to hold against the plaintiff if the defendant's conduct accorded with professional practice regarded as acceptable by some although not by others. Section 5O has the effect that, if the defendant's conduct accorded with professional practice regarded as acceptable by some (more fully, if he 'acted in a manner that … was widely accepted … by peer professional opinion as competent professional practice'), then subject to rationality that professional practice sets the standard of care. 60. In this sense, s 5O provides a defence. The plaintiff will usually call his expert evidence to the effect that the defendant's conduct fell short of acceptable professional practice, and will invite the court to determine the standard of care in accordance with that evidence. He will not be concerned to identify and negate a different professional practice favourable to the defendant, and s 5O does not require that he do so. The defendant has the interest in calling expert evidence to establish that he acted according to professional practice widely accepted by peer professional opinion, which if accepted will (subject to rationality) mean that he escapes liability. 61. … Section 5O may end up operating so as to determine the defendant's standard of care, but the standard of care will be that determined by the court with guidance from evidence of acceptable professional practice unless it is established (in practice, by the defendant) that the defendant acted according to professional practice widely accepted by (rational) peer professional opinion. To require the plaintiff to establish the negative would significantly distort the language of s 5O(1), and would not be consistent with the reference in s 5O(2) to reliance on peer professional opinion for the purposes of the section - the plaintiff does not rely on it in order to negate a liability in negligence."

[100]

70 Dr Collopy agreed that if there were signs of peritonitis, such as rebound tenderness, being present then the use of neostigmine was contraindicated because of the risk of perforation with a high risk or mortality and the patient should be taken directly to theatre for a laparotomy. However, as in this case, he thought that if it was reasonable to watch the plaintiff overnight on 21 January 2003 then neostigmine was not contraindicated - he emphasised that the first defendant's hospital notes disclosed no signs of peritoneal irritation and, in any event, rebound tenderness as an indication of peritonitis was very subjective as, indeed, was the assessment of an acute abdomen. It was instructive that when asked what were the signs of peritoneal infection, Dr Collopy said "with all professions … there is a learning curve with a lot of parts of our practice". Nevertheless, and given the risks involved with any procedure, even the use of neostigmine, Dr Collopy said there was a protocol to follow when using it, as follows: " …If you've made the diagnosis and you wish to use Neostigmine, (1) you notify the operating room to see if there's a theatre available and when it will be available and is there an anaesthetist; (2) you give the patient intravenous antibiotics in case a perforation did occur and they already have antibiotic on board; (3) you monitor the patient and you have atropine on hand; (4) you then give the Neostigmine intravenously, usually 2 milligrams over about 10 minutes - could be longer, up to 30 minutes. If it is not effective you call theatre and say, 'We're now on our way up and I'll do a colonoscopy.' Now, if that is not successful, if I can't get through this area - I only have to go up to the splenic flexure but I can't get through I will tell the anaesthetist we've got to do a laparotomy. So we have a protocol for it." 71 In that respect of the protocol, Dr Collopy said it was supported by a paper of the Standards of Practice Committee of the American Society for Gastrointestinal Endoscopy (ASGE) entitled "Acute colonic pseudo-obstruction" published in its journal Gastrointestinal Endoscopy Vol 56, No 6, 2002. I am far from sure Dr Collopy was correct in so adopting the paper as complete support for his protocol. In its summary, the paper stated: " . Conservative therapy is the preferred initial management for ACPO.

[104]

72 In the body of the paper itself, the evaluation of a patient with signs or symptoms of ACPO was diagrammatically illustrated starting with conservative management (nothing by mouth, intravenous fluids, nasogastric suction) and then with only partial or no response the use of neostigmine but if still only partial or no response then colonoscopic decompression and then as a last resort surgery. Dr Collopy said what the paper was saying if conservative treatment failed was that "if the patient is at risk of perforation you begin the protocol I mentioned". I have to say I do not understand the paper in that way. Conservative treatment as described in the paper and consistent with its regime was initiated by the first defendant overnight on 21 January 2003 but by the morning of 22 January 2003 the plaintiff's condition had worsened and with the signs of peritonitis she was taken to surgery. As the paper remarked, "those with overt perforation or signs of peritonitis should generally be managed surgically". Also, as the paper says and as support for the first defendant's approach in first adopting conservative management, "spontaneous perforation has been reported in 3% to 15% of patients with a mortality rate of 50% or higher. The rate of perforation and/or ischemia rapidly increases with cecal diameters > 10 to 12 cm and when the duration of distension exceeds 6 days". Here, Dr Bigg-Wither found the caecal diameter to be 12 cm and Dr Long measured it at 14 to 14.5 cm; the plaintiff had had abdominal distress since 19 January 2003 - the first defendant's approach two days later of the conservative treatment and then with a worsened condition of signs of peritonitis and a risk of perforation the course of surgery was, I think, entirely consistent with the ASGE paper. Indeed, Dr Collopy agreed that there was a considerable body of literature to the effect that where there are signs of peritonitis one does not go through the neostigmine protocol but one goes, as he agreed, "straight to surgery".

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Judgment (182 paragraphs)

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Cases Cited (5)