The Plaintiff's Medical Evidence
102The plaintiff relied on a report of Associate Professor John Raftos dated 28 August 2012. Dr Raftos had not examined the plaintiff, and, as an expert in emergency medicine, had examined the records of the hospital, together with the clinical notes of the Glebe Family Medical Practice. Part of his report, referring to bacterial intervertebral discitis at pp 5 and 6 had been excised following objection to it. Associate Professor Raftos gave the following further evidence in chief:
"Q: If I could take you to p 6 of your report, at the bottom paragraph, the second sentence reads, 'whenever foreign material is inserted into the body for medical therapeutic purposes there must be a definite plan to review and remove the material'. What is basically the appropriate plan for the removal of an ear wick in the circumstances as you understand this case?
A: The purposes of an ear wick is - to allow even distribution of antibiotics and steroids over the surface of the external auditory canal to treat, among other things, infections of the external auditory canal. Treatment of those infections, depending on the severity and the clinicity of the infection, can last from five to seven days to - to a few weeks. But the standard practice would be to leave the - the wick in place for one normal course of antibiotics which would be, you know, five, seven, ten days and then to remove it, observe the ear, and if necessary put in another wick.
Q: In the case of follow up is it part of the protocol to make specific arrangements with the patient to remove the ear wick?
A: Well the patient needs to know that the ear wicks got to come out, it can't be left there because if it's left there, you know, the patient can develop worse infection. So it needs to be made clear to the patient that firstly the ear wick needs to come out after a specific time and that's usually seven to ten days, where it needs to be reinspected at seven to ten days firstly. And secondly, that if the ear wick stays in place then it can have adverse consequences.
Q: On your reading of the notes did you see any note in the Concord Hospital records to indicate that Ms Harris was informed of the repercussions in the ear wick not being removed inside that period?
A: No I didn't see anything like that."
103In cross-examination, Associate Professor Raftos was asked about the plan outlined by Dr Miller on 19 February 2011 referred to in paragraph 13 above:
"Q: Now do you have any difficulty with that plan doctor, that that's a reasonable plan in the circumstances. Would that appear to be correct?
A: That's a reasonable plan. It doesn't include instruction as to how long the ear wick should stay in place but the patient's in hospital and you'd assume that the ENT Registrar is going to see her again, and then, you know, possibly write - possibly remove the wick his or herself or write a plan as to when it should be removed."
104When asked what "ear toilet" involved, his evidence was:
"A: Just washing out the ear basically. So you put in a special speculum to allow you to visualise the ear. I guess that if there was a wick or something like that in the ear you'd take it out before you washed out the ear.
Q: So again, it's unlikely that an Otowick would remain in the ear after it's been syringed, is that the case?
A: It could remain after it's been syringed but part of the syringing is to look in the ear to make sure that all the debris has been removed. So I would assume that if they looked in the ear then the Otowick probably wasn't present."
105Associate Professor Raftos was asked about the examination of the plaintiff that took place at the ENT outpatients clinic on 24 February 2011 where the clinical note read:
"On examination can see part TM."
He was asked:
"Q: ...Now would it be fair to say that you couldn't see the eardrum if there was an Otowick in place could you?
A: Couldn't see the whole drum, this says part of the eardrum, it's not clear why they can't see all of the eardrum. It may be because there's swelling and that may obscure the vision of the canal. It's possible but probably unlikely that the wick was there, if they say that they can see part of the eardrum.
Q: And so to sum up your opinion it's unlikely that the Otowick was in place at that point in time, is that right?
A: Possible, but if that is a correct reflection, I mean if that's what actually was seen, then the ear wick should take up the whole of the canal and make it difficult to see past.
Q: And then there's a reference to an ear toilet, and again, if there had been any residue left in the ear, would it be right to say that the ear toilet would have removed it?
A: You'd suspect so."
106Associate Professor Raftos was also asked about the plaintiff's examination by Dr Davison on 28 February 2011, and the entry:
"Right TM normal. Mild redness external canal - pinna NAD"
and asked:
"Q: Now again, if there was an Otowick in the ear at that time, the drum would not have been visible would it?
A: Correct.
Q: And so a doctor stating that the eardrum was normal suggests there was nothing obstructing it and nothing in the ear at the time, is that right?
A: Yes."
107When asked whether the entry in the clinical notes dated 3 July 2011, relating to "white tissues" coming out of the ear suggested that something was inserted in the ear between 28 February 2011 up to 3 July, Associate Professor Raftos said:
"A: No, my interpretation of that is that small pieces of skin from the inflamed skin from the ear canal came out with the water that was used to flush the ear, it's pretty common to see that, especially if someone's had, you know, an infection in the last little while. There's usually a bit of skin that's turned off and breaking off, so if I were to see that written, that's the sort of terminology that I'd use to explain those little bits of tissues - tissue, skin."
108Associate Professor Raftos agreed that when, on 15 July 2011, the plaintiff was asked to come back to the ENT clinic to be examined again, that that was consistent with proper practice. When asked whether the standard of care in the Emergency Department met with his approval, his evidence was:
"A: Certainly the treatment that she was given does. And the advice to come back to the ENT clinic after a period of time was correct. I think we need to be sensitive to patients, we need to individualise that message, I think that when I ask someone to do something in a medical context I always assess their ability to follow that instruction and you know that a person's whose had a difficult life and - and who's had alcohol and drugs in their life may be less able, for whatever reason, to - to follow instruction than a person who's not had those problems. So I'd probably put the message in a slightly different way for a person like that; I would say, you know, 'You really should come back and see us in a week's time because if you don't you'd come to harm". Whereas a person who's more socially competent probably wouldn't need that degree of warning. They'd say, you know, 'When's my clinic appointment, I'll come along'."
109Associate Professor Raftos agreed that there was nothing in the entry to suggest that that sort of advice was not given here. When asked to explain the difference in the fungal infection of candida albicans noted on 28 September 2011, being a different sort of infection to that which the plaintiff suffered in February 2011, his evidence was:
"A: The - the nature of external ear infections is that the bacterial floor are changed with time. So acute bacterial infection is usually due to staphylococcus aureus so if you are to go swimming, get your ear canal inflamed and get an infection it would probably be staphylococcus aureus. If that infection persisted for a couple of weeks then it would be replaced by - usually pseudomonas aeruginosa and then if it persisted for more time, usually months, usually yeasts like candida and things like that take harvest so it's a progression of different pathogens as time goes on.
Q: But could it also be a fresh infection?
A: Candida in the ear suggests a chronic infection, suggests that infection has been present in that ear for - for probably four months."
110Associate Professor Raftos agreed that if a wick was removed in September that had been in place since July, that it would be discoloured by the infection.
111In re-examination Associate Professor Raftos adhered to the opinion expressed in his report that
"The doctor's failure to remove the wick inserted in Ms Harris' right ear on 19 February 2011 or 15 July 2011 until September 2011 represents a departure from what could have been accepted by peer professional opinion in Australia."
112When asked, Associate Professor Raftos stated that, in his opinion, the fact that there was candida infection on the ear wick meant that the ear infection had been in the external ear for more than two or three months. He went on to state that it was the medical practitioner's responsibility to remove the ear wick, and that if it was still present then they had not held themselves to that responsibility.
113Associate Professor Raftos went on to give evidence that if there was a perforation of the eardrum then material could go from the external ear canal through the perforation, into the middle ear. He described that as a "possibility". He then gave the following evidence:
"Q: My question to you was, if the material, using a neutral term, was to descend beyond the externa, would it be less visible to the clinician on examination of the ear?
A: Yes.
Q: If you assume that a general practitioner on 14 September 2011 observed the tympanic membrane to be ruptured, would that indicate the possibility of the foreign body having travelled?
A: That's possible."
114The defendant called no oral evidence, but in addition to the clinical records of the hospital and the various medical clinics the plaintiff attended, relied on three reports contained in exhibit 1. The first was a report of Associate Professor Gatus dated 9 June 2013. Associate Professor Gatus was not required for cross-examination. He had examined the various clinical records and hospital notes and provided a commentary on the chronology of the plaintiff's history. His report stated that following her first admission to hospital on 18 February 2011, on discharge on 23 February 2011, the plaintiff failed to attend the ENT clinic on 24 February 2011. That was incorrect. Following her treatment on 15 July 2011, Associate Professor Gatus stated that the plaintiff was to attend the ENT clinic the following week "for ear toilet and a change of the ear wick". He noted that on 20 July 2011 the plaintiff failed to keep an appointment at the ENT clinic.
115Associate Professor Gatus commented that upon examination of her right ear at the hospital on 22 September 2011 there was no mention of a foreign body being in the right ear canal. As to the object removed from the plaintiff's right ear on 28 September 2011, he stated:
"It was not described whether or not the "wick" was a surgical ear wick or any other type of wick, being it tissue paper, toilet paper, cotton wool or anything else. Also, neither the length of the foreign body nor how far it was in the ear canal were described.
The appearance of a compacted and inspissated piece of tissue paper, toilet paper, cotton wool or anything else with the diameter of the ear canal could resemble a "surgical ear wick.
In my opinion, it cannot be assumed the foreign was a "surgical" ear wick."
116That comment became the opinion of Associate Professor Gatus as expressed on page 15 paragraph 2 of his report.
117In a supplementary report dated 9 March 2014, Associate Professor Gatus opined that on the basis of records examined by him, there was no ear wick present in the plaintiff's right ear on 24 February 2011 or 28 February 2011.
118The defendant relied on a report of Dr G R Lewkovitz dated 23 March 2013. Dr Lewkovitz was an ear nose and throat surgeon who examined the plaintiff on 19 March 2013. He requested audiometric testing and reviewed her on 25 March 2013. He concluded that the hearing in each ear was:
"Near equal but perhaps very marginally reduced more in the right ear at 4000H frequency than in the left ear. This difference is in the order of 10 decibels. A 5-10 decibel variation can be seen between successive tests and, therefore, this variation may be of no special significance. To straight examination, both ears appeared to be similar in hearing levels."
119Dr Lewkovitz went on to opine that there
"does not appear to be any permanent consequence of the prolonged wick installation into the right ear as treatment for an ear infection. The ear is normal in appearance."
He could not attribute any long term consequence to that treatment.
120The defendant also relied on a report of Dr P L Harvey-Sutton dated 31 July 2013. Dr Harvey-Sutton is a consultant occupational physician. Having examined the plaintiff Dr Harvey-Sutton said in respect to the claim for past gratuitous care of 10 hours per week domestic assistance:
"With the greatest respect, there is no indication that she requires domestic assistance now and, from the history as given and due to her medical condition, on a beneficial basis, she may have required at most some four hours of assistance per week on an average basis until September 2011."
121Dr Harvey-Sutton went on to state that:
"It was difficult to obtain a history of the incident from Ms Harris and she indicated that she had difficulty with memory. She was of the opinion that the plaintiff was medically fit to work as a beautician based on her presentation and the history given."