Proceedings in the District Court
20 His Honour identified the issues as follows:
"(a) The cause of the plaintiff's lymphoedema and its relationship to the operation on 13 May 2003.
(b) Whether Dr Tompsett was negligent.
(c) Whether if Dr Tompsett was negligent the negligence caused or materially contributed to the onset of the condition of lymphoedema in the plaintiff.
(d) Damages to be assessed under the Civil Liability Act 2002 (Red 26D).
21 In relation to the first issue, his Honour set out in detail the careful analysis of Dr Malouf, which led to Dr Malouf's conclusion that the onset of the lymphoedema was caused by the operation of 13 May 2003. Dr Malouf's conclusion was based primarily on his understanding of the respondent's history as to the development of swelling in her left leg, his reading of the operation notes and his observation of the advanced state of the lymphoedema on examination on 4 December 2003.
22 At the conclusion of that analysis, his Honour said:
"In my opinion Dr Malouf's view of the cause of lymphoedema was logically based and I prefer his explanation for the cause of the plaintiff's condition. However it is necessary to review the other evidence on this issue to explain the reasons for my preference for Dr Malouf's opinion." (Red 28W)
23 On this issue expert evidence had been given in Dr Tompsett's case by Dr Eagleton, a general surgeon, Dr Lippey, a vascular surgeon, and Professor Fletcher, a vascular surgeon. Their evidence was based on their understanding of the respondent's history as to the development of swelling in her left leg and on the operation notes.
24 His Honour summarised Dr Eagleton's opinion as follows: because of the delayed onset of the swelling (i.e. four months after surgery), it was probable that the lymphoedema had arisen from some infection or from some underlying condition. His Honour rejected that opinion:
"However, when cross-examined Dr Eagleton was, in my view, not able to state any factual basis for his opinion, and where it conflicts with the opinion of Dr Malouf I prefer the evidence of Dr Malouf. Dr Malouf saw the plaintiff within six months of the operation and Dr Eagleton's first report was not prepared until 26 February 2007, and his opinion was based on assumptions provided by the defendant, which assumptions were not validated by the evidence." (Red 29F)
25 His Honour did not articulate the opinion of Dr Lippey but set out that part of his cross-examination where he agreed that there would have been some disruption of the lymphatic system during the course of this operation.
26 His Honour rejected the proposition that the swelling in the respondent's leg had developed about four weeks before the consultation on 15 September 2003 and found that it had developed shortly after the operation. His Honour made that finding on the following basis:
"20 The sparse records of Dr Tompsett and her letters to the general practitioner taken together with the recollection of the plaintiff about her condition after the operation, in my opinion, support a finding that the operation caused the lymphoedema. I do not accept that there was a delayed onset of that condition." (Red 30K)
"26 I found the plaintiff to be a truthful and reliable witness. Despite the serious condition of lymphoedema she calmly and rationally explained her symptoms and the way in which her life had changed. I have no hesitation in accepting her recollection where it conflicts with Dr Tompsett, whose note taking was admittedly inadequate, insufficient and often incorrect." (Red 31P)
27 His Honour made no reference to the evidence on this issue of Professor Fletcher.
28 His Honour then turned to the question of whether Dr Tompsett had been negligent. His Honour posed the question "Should Dr Tompsett have recognised in February 2003 that the plaintiff had pelvic venous reflux?" (Red 33F). His Honour concluded that Dr Tompsett did not make that diagnosis in circumstances where she should have and that had she made that diagnosis, she would not have proceeded with the operation as she did but would have or should have provided the respondent with proper advice about her treatment. This advice would have included a warning as to the possible development of lymphoedema and a recommendation that she see another surgeon for a second opinion about operative treatment.
29 His Honour reached that conclusion because Dr Tompsett did not examine the respondent's buttocks or vulva, nor did she mention the condition of pelvic venous reflux, nor did she mention the word "lymphoedema". Implicit in his Honour's analysis was the proposition that if Dr Tompsett had made the proper diagnosis, she would have taken those actions. The significance of examining the buttocks and vulva is that it would have confirmed the presence of pelvic venous reflux.
30 His Honour found that the evidence of all of the doctors supported the proposition that Dr Tompsett should have carried out such an examination. In relation to Dr Malouf, his Honour made the following finding:
"43 Dr Malouf said the contents of the ultrasound of February 2003 should have alerted Dr Tompsett to the presence of pelvic venous reflux and if she had noted it she should have sought another opinion before proceeding with surgery. I accept this opinion (Red 35H)".
31 In relation to Dr Lippey, his Honour concluded that there was a contradiction between what Dr Lippey had said in his report about referral to a vascular specialist if pelvic reflux existed and what he said in his evidence. In relation to Dr Lippey, his Honour concluded:
"48 I accept that Dr Lippey believed that the defendant should have referred the plaintiff on when he prepared his report. This initial view should be accepted and Dr Lippey's attempt to resile from it in evidence rejected as a belated attempt to assist the defendant to avoid the consequences of the earlier opinion. He had ample time to retract that opinion between the date of the report and when he gave evidence, but did not" (Red 36L).
32 In relation to Dr Eagleton his Honour made the following finding on this issue:
"49 As to the evidence of Dr Eagleton, he had limited relevant surgical experience and where there is a difference in the opinion that he expresses and those of Dr Malouf, I prefer the evidence of the more experienced surgeon, Dr Malouf." (Red 36Q)
33 His Honour also found that the assumptions which had been provided to Dr Eagleton were not supported by the evidence (Red 38O) and that:
"His opinion seemed to ignore that this was standard varicose vein surgery performed in the presence of pelvic venous reflux in which circumstances the risk of lymphoedema was increased." (Red 38R)
34 His Honour's conclusion in relation to Dr Eagleton was as follows:
"70 Although Dr Eagleton said that he would not have referred someone such as the plaintiff to another specialist with expertise in the pelvic venous system, I do not accept his evidence. In my opinion, what he said was inconsistent with proper professional practice as stated by Dr Malouf. Accordingly, where Dr Eagleton's opinions differ from those of Dr Malouf on this point, I prefer Dr Malouf." (Red 40G)
35 In relation to Professor Fletcher, his Honour found that his opinion was of limited value because the assumptions upon which it was based were not supported by the evidence. His Honour was also critical of the manner in which Professor Fletcher gave his evidence:
"74 He was cross-examined about his opinion as to the cause of the lymphoedema. His evidence on this was most unsatisfactory. He did not answer direct questions, and added material for which he was not asked. It was necessary for the Court to remind him of his obligation of objectivity. His explanation for his findings on the cause of the lymphoedema in the plaintiff were not only not convincing but assumed incorrect facts. Where there is a difference between Professor Fletcher's view on the cause of lymphoedema and the evidence on this question from Dr Malouf, I prefer the evidence of Dr Malouf. Dr Malouf explained the findings of the lymphoscintogram in a clear manner and related them to the plaintiff's complaints." (Red 40W)
36 On the question of breach of duty of care, the conclusion which his Honour reached was:
"90 For the reasons that appear above and hereunder, I am satisfied that Dr Tompsett owed the plaintiff a duty of care commensurate with the standard required of a general surgeon. Viewed prospectively, I find she breached that duty and that she failed to properly diagnose the plaintiff's condition and thereby deprived herself of the ability to warn or advise the plaintiff about the future management of her condition before proceeding to surgery. Ultimately, that breach of duty led to the plaintiff developing lymphoedema because the defendant, despite the objective evidence available to her from the scans, tried to perform a standard varicose vein operation for a condition that would not readily respond to such surgery without the need to ligate extensive gross groin varicosities." (Red 44F)
37 As part of that overall conclusion, his Honour said:
"92 In my opinion, the magnitude of the risk of contracting lymphoedema was great if the diagnosis was wrong as I find it was, and although the likelihood of the occurrence of lymphoedema was low, this was not a case where the defendant was entitled to ignore the risk and do nothing. The risk of the development of lymphoedema was real where at operation there was a need to dissect and ligate a large number of veins due to pelvic venous reflux. The defendant should have diagnosed pelvic venous reflux and sought a second opinion before surgery. She should not have embarked on the surgery without advising the plaintiff of the risks and giving her the option of another specialist's opinion. The surgery, as the defendant performed it, increased the risk of development of lymphoedema." (Red 45C)
38 His Honour then set out the evidentiary basis for those opinions. His Honour restated his conclusion that Dr Tompsett had failed to correctly diagnose the condition of pelvic venous reflux. His Honour rejected the evidence of Dr Tompsett:
"98 I reject the evidence of Dr Tompsett that she gave the plaintiff comprehensive advice about the nature of the surgery and prepared a diagram in the plaintiff's presence. Dr Tompsett accepted that she was a poor note taker and had little or no recollection of the consultation. Where there is a difference between the evidence of Dr Tompsett and that of Mrs Chaker, I accept the recollection of Mrs Chaker. Her mother, Mrs Barnes, was at the first consultation and corroborates her daughter's recollection.' (Red 45W)
39 His Honour set out his conclusions as to breach as follows:
"102 According to Dr Malouf if she had done so [ie carried out an examination of the buttocks and vulva] the likelihood is that she would have seen that this is not a simple case of standard varicose veins but a condition that involved problems with the non-saphenous system. Dr Tompsett should have anticipated that when the operation began they would encounter gross groin varicosities. She should then have taken appropriate steps to obtain advice as to the correct method of dealing with a pelvic venous reflux. She did not do so.
103 Dr Tompsett, when cross-examined, sought to suggest that she did recognise the problem revealed in the scans but because there had been no complaint did not consider that the operation should be postponed or that she should send the plaintiff for a second opinion. Professor Taylor (sic) eventually accepted that the proper practice would have been to have referred the plaintiff for a second opinion, having seen the results of the scan.
104 In my opinion, the failure of Dr Tompsett to properly interpret the scans of 13 and 14 February, or at least take sufficient notice of the reports that accompanied them, led to her failing to diagnose the true condition from which Mrs Chaker was suffering. She did not have a standard varicose vein problem but veins that were indicative of pelvic venous reflex, a condition which almost certainly would have upon operation required a longer and more complicated procedure, as indeed in the end I find it did.
105 Dr Lippey suggested that Dr Tompsett ought not necessarily have taken any other steps other than to proceed with the operation for varicose veins, notwithstanding the findings on the scan. In my opinion his evidence at this point was disingenuous, seeking to backtrack on his original view that Dr Tompsett should have recognised the condition and done something about it by seeking a second opinion.
106 I am satisfied on the balance of the evidence that the failure of Dr Tompsett to diagnose the true condition of the plaintiff caused her to firstly give incorrect advice about what she could expect, remove the option of her providing advice about a second opinion and led her to perform an operation which immediately became a long and complicated procedure because of the failure to properly diagnose the condition, thereby heightening substantially the risk that lymphatics could be compromised." (Red 46R-47S)
40 On causation his Honour said:
"108 I am satisfied that the breaches referred to above caused the lymphoedema. I find that if Mrs Chaker had been advised of the risks of the surgery where pelvic venous reflux was present she would have sought another opinion from a suitably qualified surgeon before undergoing surgery. If she had done this I find that the risk of her developing lymphoedema would have been substantially reduced as the operation would probably have been performed differently as suggested by Dr Malouf.