Huen v Hyland [2004] ACTCA 5

Huen v Hyland [2004] ACTCA 5 - ACTCA 2004 case summary — Zoe

[27]

"I refer to recent correspondence regarding your client and the discussions enjoined with Mr. & Mrs. Hyland during the course of the recent consultation. It is not the writer's belief that excess force during the extraction of an upper third molar tooth would have given rise to a temporomandibular ankylosis and this referring to the ankylosis between the ball of the jaw joint and its socket in the temporal bone. It is, however, possible that a septic arthritis arose from that extraction. To establish the nexus it would be necessary to ascertain from the patient's general medical and dental practitioners whether or not there was any episode of pyrexial illness in the 2-14 days post extraction. The figure 14 days is arbitrary, of course, and you will appreciate that an initial bacteraemia may have been caused during the extraction of the tooth with dental forceps. There is no departure from accepted practice in causing such a bacteraemia and it happens with frequency and the majority of extractions are not complicated by either local or distant infection. It is improbable that subsequent alveolar osteitis or dry socket would have given rise to such a bacteraemia unless there was instrumentation of the socket. It is the writer's understanding that following the extraction of the upper molar tooth under local anaesthesia (the correct method) the patient developed, on or before the 23rd February, an ipsilateral otalgia which she described as an incredible earache. She felt unwell and was 'crook at work'. She apparently consulted Dr. Mary Langtry seeking advice as to whether or not there was an infection present and at that stage was complaining of pain in the left maxilla radiating to the left ear. It is understood that she was not febrile. Augmentin Forte (an excellent choice) was prescribed by Dr. Mary Langtry and she was referred to Dr. Gilbert Labour, dental surgeon, in Mawson, ACT. He did not believe that there was an infected socket and apparently advised her that the antibiotic might be ceased. She was at that stage complaining of 'a tight mandible and problem with jaw' and it is understood that an occlusal splint was prescribed. She also indicated jaw muscle spasm giving rise to trismus and consulted Dr. Madden who prescribed a benzodiazepine (Valium) which was 'not much help, off the planet'. Thereafter, she consulted Dr. Gilbert [Labour] again in regard to the prescription of the small occlusal splint ('proper' splint). ... In due course, she came under the writer's care and underwent a left temporomandibular arthroplasty with resection of the ankylosis. That operation was carried out on 05JUN1997 and the writer provided the following information to the consultant pathologist, Dr. Fiona Bonar: 'Dear Dr Bonar, A long history of left temporomandibular joint pain with decreased range of movement, extension and flexion 14mm gape. 14kg weight loss, now 62kg. Joint pain ++ and locking, failure of excellent conservative therapy and temporomandibular arthroscopy. Dr Shnier's first class MRI shows secondary OA in left jaw joint. Now joint space and no normal disc extant. Your usual and fastidious opinion please doctor. Thickened synovial membrane "cartilage". No loose bodies per se. ? para-articular chondroma with ankylosis.' The writer encloses a copy of Dr. Bonar's valued report which confirmed advanced degenerative arthritis/osteoarthritis et hoc genus omne. The final diagnosis - 'Advanced osteoarthritic change with synovial fibrosis and extensive fibrocartilagenous metaplasia (in ankylosis clinically)'. Please be advised that Dr. Bonar has, inter alia, a catholicity of experience in bone and joint pathology. The question arises as to whether the physical trauma of the extraction of an upper molar tooth under local anaesthesia in an adult woman would give rise to an ankylosis and the writer is unable to provide you with an explanation as to how this might occur and it would appear to be improbable in the extreme. The possibility of a low grade septic arthritis giving rise to an ankylosis is a different matter and there are no shortage of cases in the literature showing a septic joint arising out of an isolated locus or focus of acute infection giving rise to a bacteraemia (i.e. a shower of micro-organisms in the blood stream). The writer must advise you that the nexus might be considered tenuous by some and much will depend on the clinical notes and the opinions of those doctors and dentists that examined Mrs. Hyland in the fourteen days following the extraction of that tooth. Was the tooth infected, had she complained of pain (toothache) to her dentist (or her doctor) for days or weeks and was the extraction relatively straightforward, was there any associated acute or chronic abscess associated with the tooth root and was there any exodus of pus from the socket following the extraction? These are matters that the dental and medical practitioner will comment upon and it is appropriate for you to obtain reports from Drs. Mary Langtry and Michael Madden in addition to Dr. Noel Egan and Dr. Peter Vickers (records and detailed correspondence to various practitioners concerned in her care) ... write to his co-workers in the practice in Canberra." (emphasis added)

[34]

"...and of course in performing an arthrocentesis infection could be introduced to the joint without any departure from perfectly normal and proper medical practice, correct?---Yes, and its for that reason that I always cover my patients who are undergoing arthroscopy or arthrocentesis with an antibiotic. Well there's no evidence of that occurring in this case, doctor, but ---?--- Which I am greatly criticised. ...Your opinion, of course, is based upon, to a large extent, what you found at operation and the histopathology report? --- Yes, because I am the only person, Mr Stretton, that's seen inside that joint. Yes, and if infection had have been introduced or occurred in the joint at the time of the arthrocentesis, there would have been no difference in what you saw, or in the histopathology report, compared to infection introduced at the time of the extraction? --- I accept that, I have no quarrel with that. Now, if we accept that there was no evidence of a febrile illness at or about the time of the extraction, is it not more probably that the - if as you hypothesise, it was infection that caused some of the - or the major damage, that it's more likely that that infection could have been introduced unwittingly at the time of the piercing of the joint in the arthrocentesis process? --- Look it is possible, and didn't I advert to that earlier, when your friend was asking me? You may well have professor, and because I suggest to you the piercing of a joint, or the introduction of an instrument of some kind into the joint is quite often associated with infection, subsequently? --- No, no. Or can be associated with infection? --- No, I don't accept that. No? --- An infection may follow arthroscopy or arthrocentesis or an intra-articular injection of local anaesthetic or cortoid ..(indistinct) ... Right? --- But this is not - in Australia this is not common because Australian doctors, surgeons and physicians, rheumatologists, use an aseptic and careful technique, and because the materials that we are using are, thanks to the standards association and so forth, of high quality. Yes, but you agree with me that there is a possibility of some infection having occurred? --- Yes, of course the possibility but not frequently."

[37]

"There are a number of issues that need to be explored in relation to this case: 1. The Extraction It is accepted clinical practice that a radiograph showing all of the root structure is taken prior to extraction of the tooth. This was not done in this case however, the tooth was extracted whole and evidently without too much difficulty (a few minutes). 2. Trauma to the Temporomandibular Joint Any extraction requires force and it is highly possible that the force applied to the jaw initiated Mrs Hyland's subsequent problems. Certainly in the history a cause/effect relationship exists. Subsequent trauma to the joint occurred in the manipulation under anaesthetic (MUA) by Dr Vickers and arthrocentesis by Dr Cooper. 3. Infection into the Joint Dr Norman, in all correspondence sent to me directly 8th April 1997; 13th May 1997; 5th June 1997 and 2nd July 1997 and in all my conversations with him even during the surgical [procedure], did not mention the possibility of infection subsequent to extraction as being a possible cause of the joint problem. In his report of the operation (5th June 1997) he gives three possible differential diagnos[es], mentions trauma however, does not mention injection. Hypothetically there are two possible modes of introduction of an infective agent into the temporomandibular joint in Mrs Hyland's case: A. Subsequent to the extraction somehow through the tissue planes in the maxilla to the joint - I think it is more likely that the maxillary sinus would be affected however, will accept Dr Norman's advice that it is common. I have not witnessed this in 17 years of conservative management of the temporomandibular joint. B. Direct introduction via an infected needle in either the arthrocentesis or surgical manipulation under anaesthetic (if the joint was injected at that time). 4. Failure to Warn A. If infection is as common as Dr Norman indicates as a [sequelae] of upper wisdom tooth removal there is a definite failure to warn. (emphasis added) B. All extractions should warn of pressure to the jaw, teeth, bone and tissues."

[53]

"Now what about the wisdom teeth, do you remember when they were taken out? --- When I was about 19 - 18-19, and it was at the Woden Valley Hospital All right. Were they all taken out in the one procedure or were they separate procedures? --- They were two different procedures. Had you been having pain as a result of the - a problem with your wisdom teeth? --- Yes And were they taken out just with a local anaesthetic? --- Yes. I take it you weren't given antibiotics for those procedures? --- I was. You were given antibiotics were you? --- Yes Was that because you had an infection? --- Yes By the way, you had commenced your nursing training immediately after leaving school, is that correct? --- Yes. Yes. So you were actually still in training as a nurse, were you, at the time when these procedures were carried out? --- Yes. And I take it that in the course of your training, and indeed your experience as a nurse, you're well aware that infection is a risk with any sort of surgical procedure? --- Yes. Any sort of surgical intervention? --- Yes. So you well knew that there was some risk of infection even with a tooth extraction? --- Yes." ... ... you've said in your evidence that if you'd been given certain warnings you might have done something different, remember saying that in answer to some questions by Mr Stretton? --- Yes. The reality of course Mrs Hyland is for example you well knew that there was a risk of infection with this extraction? --- Yes. You've said that, you didn't request antibiotics from anybody did you? --- No. So if Dr Huen had said to you 'Well there's a risk of infection with this procedure' it would have made absolutely no difference to your agreement to undergo the procedure would it? --- Yes. I'm having some difficulty in following that. You've already said that you knew there was a risk of infection? --- Yes. You didn't need to be told, did you? --- No. You're a nurse? --- Yes. You know there's a risk of infection with any interventionist procedure? --- Yes. It's not, I want to suggest to you, common or even the done thing to give people antibiotics just in case is it? --- Prophylactically, yes. For every sort of interventionist procedure? --- No, no. Indeed it's very rare - I withdraw that - there is some real reluctance to prescribe antibiotics willy-nilly isn't there? --- Yes. Because of the development of resistance? --- M'mm. You don't seriously tell this court do you that if Dr Huen had said to you in the course of talking about the extraction, 'This tooth needs to come out, of course you're aware that there's some risk of infection' that you would then have said 'Well I want antibiotics'? --- No. Similarly, you didn't need to be told, I want to suggest to you, that there was a risk that there would be some pressure applied to the region of your head in the course of pulling the tooth out, extracting the tooth, you knew that didn't you, you've already said you did you see Mrs Hyland, are you seeking to change that? --- No. So that if Dr Huen had said to you 'Well the tooth needs to come out and of course you will feel some pressure and I will need to apply some force to the tooth to remove it' that wouldn't have changed anything would it, as a matter of common sense? --- Yes. Well, you knew it, didn't you? --- Yes. So what difference would it have made if Dr Huen had told you what you knew? --- No, that isn't what I'm talking about. Is what you're talking about that if you'd known that there was a risk that you might go on to develop an ankylosis of the left [temperomandibular] joint, that then you would've perhaps sought somebody else to do the procedure? --- Yes."

[78]

54. In our opinion, the Court's jurisdiction and powers are sufficiently wide to give effect to the above considerations. It is clear that this Court is not a court of strict appeal only: s 37N(3) of the Supreme Court Act 1933 gives the Court a discretion to receive further evidence and that Act contemplates that the Court will give decisions on appeal that "it considers just" even if an unappealed interlocutory judgment should stand in the way: s 37O(4). Similar provisions in the Federal Court of Australia Act 1976 (Cth) were reconsidered, after the decision in CDJ v VAJ (No.1) (1998) 197 CLR 172, and held to create an appeal by way of rehearing: see Cubillo v Commonwealth [2001] FCA 1213; (2001) 183 ALR 249 at 316. Further, the Court of Appeal is an emanation of the Supreme Court: s 37D(1). As such it has "all...appellate jurisdiction that is necessary to administer justice in the Territory": s 20(1). Justice, of course, does not mean what may idiosyncratically appeal to the judge or judges constituting the Court but justice according to law. On an appeal by way of rehearing, the Court should, so far as possible, give "the judgment which in its opinion ought to have been given in the first instance": Dearman v Dearman [1908] HCA 84; (1908) 7 CLR 549 at 561, Fox v Percy supra and Pledge supra. In general, too, it is axiomatic that parties are, for the sake of bringing an end to litigation and the orderly administration of justice, ordinarily to be bound by the conduct of their legal advisers. However, such salutary general admonitions may not fairly be applicable in every case. Here, the award or denial of a substantial verdict appears to rest on a mistake of fact leading to an inadequate exploration of a crucial issue and the mistake was apparently common to the parties and the trial judge. The case is one of a trial which has miscarried rather than of, as it were, a free-standing judicial error the correction of which should, in justice, be finally decisive. In our opinion, the just outcome, by the application of legal reasoning and the application of legal precepts, is that there should be a new trial limited to the following issues:

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