Henderson v Low and Ors [2001] QSC 496

Supreme Court of Queensland|2001-12-21|Before: Dutney J

[1] Allan Henry Henderson was a man's man. He was born on 15 February, 1948. As late as 1994 he was jogging and sparring with his son and his son's friends. He had been an amateur boxer in his youth and had swum against opponents of the calibre of John Konrads and Murray Rose.

[2] By 1994 Mr Henderson's body was showing signs of wear. In 1994 he was diagnosed as having chronic non-bacterial prostatitis. This gave him some discomfort in has back with a full bladder. From the early 1990's Mr Henderson had a niggling back condition. He was doing a lot of jogging, sparring with lads from the boxing club and playing touch football with his children. He had pain after extensive activity.

[3] Mr Henderson placed heavy store in physical fitness and strength. As a lad he had been sexually interfered with. Mr Henderson coped with this by emphasising his strength and fitness and his general manliness. He had a fixation with his sexual performance.

[4] During 1994 Mr Henderson's back problems intensified. In about September 1994 an incident occurred in which Mr Henderson's 18 year old son who he was tackling fell or jumped on his back. This caused considerable pain which took a considerable time to subside. Leg pain was also interfering with Mr Henderson's activities. His jogging had been significantly reduced from regular 6-7km jogs to about 3km twice a week. He predicably suffered pain in both legs while jogging.

[5] There is no doubt in my mind that by late 1994 Mr Henderson's back and legs were causing him considerable discomfort. From November 1994 until the operation in January 1995 Mr Henderson visited his general practitioner on 17 or 18 occasions. On one occasion late in that period he was given pethedine.

[6] Ultimately, Mr Henderson consulted the defendant, Dr Low, an orthopaedic surgeon. Dr Low ultimately recommended a laminectomy. This was carried out at the Townsville General Hospital on 25 January, 1995. Since then Mr Henderson's life has been a misery. He attributes his present condition to the operation. He says that had he been warned that his present condition was a possible outcome of that operation he would not have had it. He says that Dr Low was negligent in failing to warn him of the possible outcomes. It is not suggested that Dr Low was negligent in the performance of the operation.

[7] For his part, Dr Low denies that the plaintiff's present condition is related to the operation. He says that his explanation of the operation and the potential risks was sufficient and in any event the possible consequences were outlined to the plaintiff by Dr Beal, an intern who assisted in the operation, prior to the plaintiff undertaking it.

[8] The relevant law is summarised in the New South Wales decision of Morrison v Wong [1]. In general the duty on a doctor is to "exercise reasonable care and skill in the provision of professional advice and treatment"[2]. In Roger v Whitaker the High Court stated of the failure to warn:

"The law should recognise that a doctor has a duty to warn a patient of a material risk inherent in the proposed treatment: a risk is material if, in the circumstances of the particular case, a reasonable person in the patient's position, if warned of the risk, would be likely to attach significance to it or if the medical practitioner is or should be aware that the particular patient, if warned of the risk, would be likely to attach significance to it. This duty is subject to therapeutic privilege."[3]

[9] The logical first enquiry in this case is as to whether or not Mr Henderson's present condition is surgery related. On this issue the medical evidence is divided. The history is important in this context.

[10] Mr Henderson says that he awoke from surgery with incredible back pain. During the course of the day he was unable to urinate and was catheterised. The plaintiff remained in hospital under heavy medication including morphine from the date of the operation on 25 January, 1995 until 30 January 1995. The pain was concentrated in the area of the surgery and included severe pins and needles down Mr Henderson's legs. The catheter was taken out on 28 January, two days before discharge. During that two day period Mr Henderson had trouble urinating. He says he found that he was dribbling with no feeling. He had no sensation of a full bladder. To empty his bladder he would simply sit on the toilet and dribble until the dribbling stopped.

[11] The plaintiff consulted his general practitioner on 30 January and 31 January. On the latter date Mr Henderson mentioned he was having some pain with urinating and some hesitancy. Mr Henderson says that he believed this was simply part of the recovery process.

[12] Between 31 January 1995 and 22 February 1995 apart from a visit to the hospital on 7 February, Mr Henderson recuperated at home. He says his bladder function did not improve. He was not aware of the sexual dysfunction because he was not interested in sexual activity at this time.

[13] On 7 February 1995 the plaintiff attended at the Townsville General Hospital Emergency Section where he received Pethidine and Maxalon.

[14] Shortly after the plaintiff's visit to the hospital on that occasion his wife observed that his pyjamas and the bed were wet. Thereafter the plaintiff wore incontinence pads. Not surprisingly this caused the plaintiff acute embarrassment. He is not a man who finds it easy to discuss personal matters.

[15] On 21 February the plaintiff went back to the hospital. The notes of his admission on that date record "No urinary/ bowel symptoms". Mr Henderson says this is a misunderstanding of his response. He says he was asked if he could pass urine and said he could. He said in evidence that he could pass urine but only by dribbling. He has no control over it.

[16] On 22 February the plaintiff went back to work. He continued to wear incontinence pads and was too embarrassed to disclose his condition to work mates. Ultimately he did confide in one or two of them.

[17] On 5 March 1995 the plaintiff was back at the hospital. This time the admission notes of the intern, Dr Beal, record:

"Urinary problems getting slowly worse over last 10 years - decreased stream. Nocturnia x 5 ....mild terminal dribbling. No problem with starting if no back pain....

- Painful to ejaculate. Before op. But worsened by op.

[18] Mr Henderson said that he was in terrible pain at the time. He had suffered from prostatitis over a number of years but had never previously had dribbling. He had previously suffered from dysuria but had had no decrease in erectile function. He had only failed to achieve or maintain an erection on one or two occasions when he had been working a second job. This evidence was confirmed by Mrs Henderson both in relation to bladder and bowel dysfunction. I was impressed by Mrs Henderson as a witness and accept what she said. I also generally accept the evidence of the plaintiff. The only exception is that I prefer the evidence of Mr Webb in relation to the time the plaintiff ceased many of his physical activities. However, I don't regard the differences between them as material. The apparent conflict between the history given by the plaintiff and evidence and that recorded in the hospital file is not in my view of major concern. My opinion of Mr Henderson from watching and listening to him is that he would have had considerable difficulty, due to his reticence, in giving an accurate picture of his bladder and erection dysfunction. If one marries this with the evidence of Dr Cartmill at T240 - 245 it does not seem to me to be surprising that the hospital records do not accurately record Mr Henderson's complaints.

[19] On this occasion the plaintiff was in the hospital for eight days.

[20] Evidence of the causal connection between the operation performed by Dr Low and the post-operative condition of the plaintiff was given by Drs Searle, Lun, Boys and Cartmill as well as by the defendant.

[21] It was generally accepted by the doctors that damage to the cauda equina or that part of it containing the nerve roots controlling bladder and sexual function is a potential risk of spinal surgery. This appears to be either because of the need to retract the cauda equina to obtain access to the particular nerve compression the laminectomy is designed to relieve or because a haematoma in the area of the surgery either during or following surgery can itself cause pressure damage to the nerve root. The doctors did however agree that such damage was a rare complication.

[22] Of the expert witnesses Dr Lun, a urologist, and Dr Boys, an orthopaedic surgeon, were of the view that attributing the plaintiff's loss of bladder and sexual function to the operation was purely speculative. Dr Boys could find nothing in the records of the operation to suggest a complication that might lead the conclusion that such occurred. Dr Searles, the plaintiff's orthopaedic expert, was more relaxed about the operation giving rise to the complications and Dr Cartmill, a urologist, considered the problems were related to nerve damage and given the coincidence in time between the symptoms and the operation were such that there was a causal connection. Dr Lun's rejection of the operation as a cause of the condition seems to be based on the fact that other causes and in particular vascular problems are more commonly the cause of a loss in bladder and sexual function and that such loss of function can occur at any time. Dr Gillett, another orthopaedic surgeon gave evidence which largely addressed quantum but was not asked to and did not express any view as to the cause of the plaintiff's condition. Since, I am required to consider this issue on the balance of probabilities I find it more probable than not that as the loss of function corresponds with the operation there is a causal connection. I am satisfied that such evidence as there is leads to this conclusion despite the absence of any evidence which enables an exact cause to be determined.

[23] Having reached the view to the required standard that the plaintiff's condition and the operation were causally connected the next step in the process is to determine whether any warning about this possible complication was required.

[24] Dr Boys was of the opinion that a warning of the possibility of interference with bladder and sexual function should have been given by a medical practitioner advising on a laminectomy in 1994. Dr Low accepted that that such complications were a risk. Dr Low did not know that the plaintiff placed the degree of importance on sexual function that he did. The issue is, therefor, whether a reasonable person in the plaintiff's position would have attached significance to the risk.

[25] Dr Beal, the intern who obtained the plaintiff's signature to the consent form was of the view when giving evidence that a warning of the risk of nerve damage leading to loss of function should have been given.

[26] Dr Gillett agreed that a warning was appropriate in relation to possible loss of bladder and sexual function in 1994.

[27] Apart from not being warned as to the possibility of what in fact happened happening the plaintiff claims that he did not receive from Dr Low even a warning of the far more likely possibilities that the leg pain which the operation is designed to relieve would not be relieved and the back pain would be unlikely to be improved and could be worse.

[28] In dealing with Mr Henderson's personal circumstances it is significant that Mrs Henderson was unaware of the plaintiff having a disabling condition. He worked as a gatekeeper at the James Cook University. The position was sedentary and involved minimal walking. The job was one the plaintiff could have handled with back and leg problems as evidenced by the fact that he returned to it after the operation despite being in a far worse condition.

[29] Dr Low gave evidence that when he saw the plaintiff, Mr Henderson was stooped over and severely disabled. I don't accept this evidence. Likewise I do not accept as accurate Dr Low's note that the plaintiff was off work and could not work because of his condition. The personnel records of James Cook University show this to be untrue. The plaintiff had 3 days leave in 1994, one in each of February, November and December. The evidence of Mrs Henderson whose evidence I have already said I accept was that she was unaware that her husband had a serious back condition or that he was contemplating surgery. She said he was still jogging although less than he had been. She was aware he took Panadol but did not observe any problem walking.

[30] The plaintiff's complications are by no means insignificant. Dr Gillett assesses Mr Henderson's disability as a 60% loss of whole body function. The possibility of such a catastrophic outcome even if slight is, in my view something that a patient is entitled to weigh up in making a decision on elective surgery and something which a reasonable person in the position of Mr Henderson would have considered when deciding whether or not to proceed with the operation. There is no doubt in my mind that the risk of failure of the operation is something someone in Mr Henderson's position ought to have been informed about. This is particularly so where, as here, surgery was the only option discussed with the plaintiff by Dr Low. On the evidence it would have been reasonable to consider before operating the use of more conservative treatment such as ceasing jogging and perhaps physiotherapy or medication.

[31] I shall turn now consider what, if any, warning was given to the plaintiff and particularly by Dr Low. The defendant's case is that the complications were outlined by Dr Low to the plaintiff and later at the hospital by Dr Beal. Neither has any specific recollection and both rely on there best recollection of their usual practice in 1994/1995.

[32] The plaintiff saw Dr Low as a public patient at an orthopaedic clinic at the hospital. The notes of these consultations are scant. Dr Low's evidence was that the only date on which he would have given the plaintiff the appropriate warning was 17 January, 1995. This date arose late in the trial as a result of evidence and is inconsistent with the defendant's pleading. The defendants sought leave to amend their case to rely on a warning given on this date only after all the evidence save that of Dr Beal had been given. The plaintiff opposed the amendment on the basis that it had conducted its whole case on the basis of the date of warning pleaded and had not addressed this consultation at all. I indicated that I would reserve my ruling on the amendment until I knew whether and to what extent it was significant. The assessment of the parties evidence has to be seen in the light of the fact that the plaintiff was meeting a case based on a warning given on 6 December, 1994. That case is now effectively abandoned. Dr Low's evidence on the point at T218 was as follows:

"When a firm decision was made to do the laminectomy the possible complications would then have been explained to this man. Obviously you don't explain the complications when you haven't made a firm decision to do the surgery. And the firm decision to do the surgery was not made until January. That's clearly apparent by the notes that I have from Doctor Towne on 17 January 1995. At that stage I had not seen the myelogram."

[33] I find this an extraordinary approach to a warning. For myself, I would have thought that the warning formed part of the decision making process. One could not make a firm and considered decision on elective surgery without an understanding of the risks. Even more extraordinarily, Dr Low seems to be suggesting that the firm decision to do this elective surgery was made by him rather than by the patient. This view emerged more clearly over the following pages of transcript. I consider that a warning given after a firm decision to proceed with an operation has been made is unlikely to be effective in the same way as one given in the course of the decision making process and in a case like this is not adequate.

[34] Dr Low regarded this surgery as uncomplicated and routine. I could not sensibly follow his evidence concerning his usual "spiel" when it was given orally and found his explanation of the surgery and its risks difficult to follow when it was written down in the transcript. Such an explanation is not likely to satisfy the intended purpose of allowing a patient to make an informed decision. Dr Low's opinion as to the actual degree of disability the plaintiff had before surgery as opposed to the degree of spinal degeneration at L4/5 I find was wrong. I found Dr Low's evidence unconvincing. He was argumentative and defensive. Although the latter may understandably be related to his indignation at the suggestion he had not properly advised Mr Henderson, his manner of giving evidence did nothing in my mind to dispel the favourable impression I had formed of Mr Henderson. There is no note of what was said to Mr Henderson and Dr Low has no independent recollection. The evidence of Dr Low's usual practice was vague and concluded with the words at T201:

"I can't remember whether I - all the complications that I would have told this man but I would have given him some of - a spiel something like that"

[35] As to whether a warning was given by Dr Low on 17 January 1995 or any other date I accept the evidence of the plaintiff. I find that no warning was given as to the incidence of failure of the operation, the risk that the back pain might be worse or that there might be catastrophic failure of bladder and sexual function.

[36] On the day of the operation Dr Beal saw the plaintiff in the hospital. At that time Dr Beal was an intern. He had been qualified as a doctor for about three weeks. In those circumstances it seems to me to be unlikely that he would have had sufficient experience to have a "usual practice" in relation to warning of complications when obtaining consent forms. Dr Beal does not recollect obtaining a consent form from the plaintiff in this instance although he recognies his signature and writing on the document. Dr Beal said in evidence that he would have explained a proceedure to the best of his ability if he formed the view the patient had unrealistic expectations of the operation. In this case Dr Beal cannot comment on whether or not he formed such a view about Mr Henderson. The consent form records that the operation has been explained but not that the possible complications have been explained nor what those possible complications were. I am not prepared to find that Dr Beal in fact advised the plaintiff of the risk of loss of sexual and bladder function even if a warning given while the patient was waiting in the hospital bed for the surgery to take place could be considered adequate discharge of Dr Low's obligation. Apart from a brief explanation of the procedure and advice as to the risk of dying under anaesthetic, on the balance of probabilities I accept Mr Henderson's evidence that Dr Beal told him to refer his queries to Dr Low.

[37] While Mr Henderson's fixation with sexual function was not a factor Dr Low could take into account in deciding whether or not to give a warning, if a warning had been given at an appropriate time I consider it would have been likely to have caused Mr Henderson to at least delay surgery to enable him to consider alternatives to surgery. All the independent orthopaedic specialists who gave evidence agreed that surgery was not the only option in the plaintiff's case. None of the other options had been tried except medication which had only been prescribed since November, 1994. If the proper warning had been given I find it more probable than not that the plaintiff would have at least deferred surgery until other possibilities had been tried.

[38] In the circumstances I find that the plaintiff has made out his case of failure to warn. I find that the failure was in breach of the duty owed by the first defendant to the plaintiff and that he was negligent. The third defendant admits that the first defendant was acting as consultant to it and that it is vicariously liable for the first defendant's negligence.

[39] Some of the plaintiff's problems have been referred to already. He is impotent and incontinent. He has to self catheterise in order to urinate. He suffers a major depressive illness. He has been assessed by Dr Gillett as suffering a 60% loss of whole body function. The plaintiff's condition is permanent.

[40] Mr Henderson was employed as gatekeeper at James Cook University. Even with leg and back problems the plaintiff could have maintained this work indefinitely and I assume he would have done so. This is evidenced by his maintaining this job until January 1999 despite his post operation difficulties. He is on any practical view now wholly unfit for any type of work. I propose to base the claim for past and future economic loss on the wage level for work as a gatekeeper. This is $575.00 net.

[41] The plaintiff requires substantial personal assistance and care. He needs help dressing, toileting, bathing, with personal care, with food and transport and most other aspects of daily life. The plaintiff's wife is a certified carer for pension purposes for 13.5 hours per day. Dr Boys considers 10 hours per week to be reasonable. I propose to allow 10 hours per week for the past. This comprises 2 hours of yard maintenance at the commercial rate[4] of $35.00 per hour and 8 hours of domestic assistance at $12.00 per hour. For the future I propose to allow the same for 15 years until Mrs Henderson is in her mid to late 60s. Thereafter for the remaining 11years of Mr Henderson's life expectancy I propose to allow for professional help with catheterisation at the rate Mrs Henderson presently assists. This will replicate the rate at which Mrs Henderson is currently required to assist. A commercial rate is $15.00 per visit for 15 visits per week. I do not propose to further discount the 10 hours care provided to allow for degeneration in Mr Henderson's back in any event. The garden time is already reduced by one third from the figure given in evidence by Mr Henderson. I am not persuaded that the evidence shows he would in any event have been disabled to the extent of requiring domestic assistance. Future special damages comprise pharmaceutical and ancillary product expenses set out in exhibit 1, penile prosthesis and associated surgery discounted to $19,298.00. I also allow $8,000 for a pain clinic with a discount overall for future medical expenses. There was no serious challenge to these amuonts.

[43] I give judgement for the plaintiff against the first and third defendants in the sum of $849,516.18 and I order the first and third defendants to pay the plaintiff's costs of the action to be assessed on an indemnity basis.

[2] Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479, 483

[4] See Van Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327 at 335; Marsland v Andjelic (1993) 31 NSWLR 162

[6] Less Social Security payment of $22,324 for 150 weeks.

[7] $575.00 per week for 12 years discounted by 15% for contingencies.

[8] $166.00 per week at 3% for the whole period plus an extra $225.00 at 5% for last 11 years.

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