Marko v Falk

Marko v Falk - [2007] NSWSC 14 - NSWSC 2006 case summary — Zoe

[20]

9 The plaintiff consulted the defendant on one occasion only before the operation. This was on 6 December 1999. The consultation involved the taking of a history, an examination, discussion and agreement as to the course to be taken. The memory of each party was deficient as to precisely what was said at the consultation. The plaintiff accepted that her memory was "not very good at all" and that there were some aspects she "might not remember any longer". The defendant, while having an independent recollection of some aspects, accepted he did not remember clearly the contents of the conversation and, in giving his evidence of the consultation, relied to a considerable extent upon his usual practice and some notes made at the consultation. 10 Notwithstanding these difficulties it appears to me from the evidence, and I find, that at the consultation: (a) the plaintiff complained of indigestion, bloated abdomen, palpitations, pain and feeling sick. She reported other dyspeptic symptoms which were suggestive of duodenal ulcer, reflux or motility disorder. She gave a history of a previous duodenal ulcer, stubbornness of the bowel and a family history of colon cancer; (b) the parties discussed the issue of gallbladder pain. The defendant confirmed it was appropriate at that stage to undertake a cholecystectomy if the plaintiff wished. The defendant explained what he proposed to do and that he would perform the procedure using keyhole surgery which would leave only a small incision though circumstances could arise which would require converting from keyhole surgery to open surgery. The plaintiff indicated she was prepared to undergo open surgery in respect of the gallbladder if, in the defendant's opinion, it became necessary; (c) the plaintiff told the defendant she wished to have a colonoscopy (examination of the lining of the rectum and colon using an instrument inserted via the anus) performed as she was over the age of 40 years and her mother had had a bowel tumour. The defendant said this procedure involved using an instrument to "have a look". The plaintiff said there was no mention of any surgery in relation to the procedure. The defendant said that he would have told the plaintiff, as was his routine practice, that if a polyp was found on colonoscopy that it would be removed. The plaintiff did not recall this being said but said it was possible. I accept it as more likely than not that the defendant, as part of his usual practice, did tell the plaintiff of this at the consultation and she has forgotten it. The plaintiff accepted that the defendant probably, in accordance with his usual practice, explained there was a risk of bleeding or perforation of the bowel but that the likelihood of the risk eventuating was small; (d) the defendant suggested to the plaintiff she should have an endoscopy (an examination of the lining of the oesophagus, stomach and duodenum (first portion of the small intestine) using an instrument (endoscope) inserted via the mouth). The plaintiff knew what an endoscopy was and the defendant confirmed her understanding. The plaintiff could not remember why the defendant suggested endoscopy but the defendant gave evidence, which I accept, that he considered it appropriate having regard to the dyspeptic symptoms and that it was important to determine the presence or absence of helicobacter. I also accept it was the defendant's usual practice to explain there was a risk of bleeding and perforation occurring during the procedure but that it was rare. The plaintiff said she didn't remember this but it seems to me more probable than not that it was said as it was the defendant's usual practice. The defendant did not mention the possibility of finding a polyp on endoscopy; (e) the plaintiff told the defendant that about 20 years ago she had undergone an anaesthetic but had not regained consciousness until some 12 hours after the operation and that as a result she was fearful of anaesthetics. The defendant formed the view the plaintiff was very frightened of anaesthetic and she only wanted to have one anaesthetic. She told him that she wouldn't come back and have two separate anaesthetics. The plaintiff informed the defendant she had just started a new job; (f) it was agreed the three procedures proposed were to be performed under anaesthetic. Because of her fear of anaesthetics and a desire not to lose too much time from her new job the plaintiff asked if the procedures could be carried out consecutively under the one anaesthetic. The defendant told her that although that was not ideal it could be done. The plaintiff requested that the procedures be carried out in that way.

[21]

11 At the conclusion of the consultation the plaintiff was given patient information brochures by the defendant or his staff in relation to each of the three procedures. The plaintiff said she read these documents after the consultation but before the operation. It was not suggested she was unable to understand the content of the brochures or that she attempted to contact the defendant for clarification of anything in them or in respect of the proposed procedures. The plaintiff next saw the defendant on 21 December 1999 "just briefly" at the hospital before she went into surgery. 12 The colonoscopy brochure relevantly states, under a heading "What if colonoscopy shows an abnormality?": If your surgeon sees an area that needs more detailed evaluation, a biopsy may be obtained … Polyps are generally removed. The majority of polyps are benign (non cancerous), but your surgeon cannot always tell by the outer appearance alone. They can be removed by burning (fulgurating) or by a wire loop (snare). It may take your surgeon more than one sitting to do this if there are numerous polyps or they are very large. Sites of bleeding can be identified and controlled by injecting certain medications or coagulating (burning) of bleeding vessels. Biopsies do not imply that cancer is suspected, however, removal of a colonic polyp is an important means of preventing colorectal cancer. 13 Under the heading "What complications can occur?" the colonoscopy brochure states: Colonoscopy and biopsy are generally safe when performed by surgeons who have had special training and are experienced in these endoscopic procedures. Complications are rare. However, they can occur and include bleeding from the site of a biopsy or polypectomy and a tear (perforation) through the lining of the bowel wall. Should this occur, it may be necessary for your surgeon to perform abdominal surgery to repair the intestinal tear. 14 The upper GI endoscopy brochure states under the heading "Why do an upper endoscopy?": A variety of instruments can be passed through the endoscope that allow the surgeon to treat many abnormalities with little or no discomfort. Your surgeon can stretch narrowed areas, remove polyps … 15 Under the heading "What complications can occur?" the endoscopy brochure states: Gastroscopy and biopsy are generally safe when performed by surgeons who have had special training and are experienced in these endoscopic procedures. Complications are rare. However, they can occur and include bleeding from the site of a biopsy or polypectomy and a tear (perforation) through the lining of the intestinal wall. 16 The plaintiff signed a consent form in the following terms: I … request the following operation / procedure / treatment to be performed laparoscopic cholecystectomy, operative cholangiogram and colonoscopy and gastroscopy … I understand that other unexpected operations / procedures / treatments may be necessary and I request that these be carried out if required. Although this operation / procedure / treatment is carried out with all due professional care and responsibility, I understand that in some circumstances the expected result may not be achieved. I also understand that complications may occur with any operation / procedure / treatment and I accept the possible risks associated with this operation / procedure / treatment.

[29]

Associate Professor Bolin is a physician. He does not perform laparoscopic cholecystectomies. It is not clear if his final position was that the defendant showed a lack of reasonable care in this regard. If it did I reject it, preferring the evidence of the other specialists (see in particular Dr Hugh) who accepted that it was not negligent to perform the three procedures consecutively, albeit it was not usual. I find that there was no breach of duty in this regard. Furthermore it has not been established the injury to the plaintiff resulted from the procedures being performed at the one time. The order of performance of the three procedures 31 It was common ground the sequence in which the procedures were performed did not cause the injury to the plaintiff. 32 However the plaintiff submitted the defendant was negligent in performing the cholecystectomy before the diagnostic procedures because, if the diagnostic procedures had been performed first, the polyp would have been observed and the defendant could have elected to remove the polyp and the gallbladder by open surgery at the same time or, if the polyp had been removed endoscopically, the perforation would have been capable of being observed on laparoscopy and could have been immediately repaired by converting to an open operation. 33 In my opinion these submissions are the product of hindsight. There was no prescribed sequence for the performance of the procedures. The defendant performed the cholecystectomy before the diagnostic procedures. He did so as his previous experience had demonstrated that the insufflation of gas into the gastrointestinal tract during the endoscopy could cause difficulty in visualisation of structures at the bottom end of the gallbladder if the sequence of procedures was reversed. Additionally there was a problem as cannulisation of a distended abdomen for keyhole surgery was hazardous. Dr Hugh confirmed that these problems did arise. It was Dr Hugh's practice to perform endoscopy after cholecystectomy. The defendant and Dr Hugh were the most experienced endoscopists of those who gave evidence. 34 The risk of a polyp being encountered was rare. The risk that a polyp would be encountered and that a perforation would occur, particularly at the hands of the defendant, was remote. In these circumstances in my opinion it would be quite unreasonable to categorise the defendant's choice as to the sequencing of procedures as involving any breach of duty on his part. Accordingly I reject this head of alleged breach. Failure to warn / advise of risks preoperatively 35 The alleged breach in this regard was particularised in the Amended Statement of Claim as follows: (i) Failure to properly or adequately warn the plaintiff of the risks involved in the surgery contemplated; … (v) Failure to warn or adequately warn the plaintiff of the increased risks of duodenal perforation by laparoscopic snare removal of the polyp rather than its removal by open operation before such removal was attempted. (vi) Failure to advise the plaintiff of alternative and safer procedures to remove the polyp. 36 The applicable legal principles are: … 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 reasonably be aware that the particular patient, if warned of the risk, would be likely to attach significance to it. This duty is subject to the therapeutic privilege - Rogers v Whittaker (1992) 175 CLR 479 at 490. … [the] standard is not determined solely or even primarily by reference to the practice followed or supported by a responsible body of opinion in the relevant profession. … in the field of non-disclosure of risk and the provision of advice and information … the courts have adopted the principle that, while evidence of acceptable medical practice is a useful guide for the courts, it is for the courts to adjudicate on what is the appropriate standard of care after giving weight to "the paramount consideration that a person is entitled to make his own decisions about his life." - Rogers v Whittaker at 487. 37 It was common ground that the finding of a polyp on upper endoscopy was unlikely. Professor Williamson described such a finding as "rare". Associate Professor Bolin, who performed 750 upper gastric tract endoscopic procedures per annum said that in a three year period he had encountered only two duodenal polyps. Professor Morris described it as a rare condition. Dr Hugh described the finding of a polyp such as the plaintiff's as an extremely unexpected event. The defendant described it as rare. 38 There was an acknowledged risk of perforation occurring during upper endoscopic removal of a duodenal polyp. This risk also was rare. Dr Hugh referred to a risk level with colonic polypectomy of between 0.5 - 1% but was a little reserved as to the correlation between colonic and duodenal polyps.

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39 Thus the risk of the injury to the plaintiff which in fact eventuated required the conjunction of two rare events. 40 It was not the defendant's practice to discuss duodenal polyps with a patient because it was so rare in the upper gut. He did not discuss the possibility of finding a polyp or polypectomy with the plaintiff. 41 None of the medical experts who gave evidence, save perhaps Professor Morris, would have warned the plaintiff of this risk. In particular Professor Williamson did not think he would mention the outside possibility of a polyp being found. Dr Hugh said no warnings of possible complications would be given. Associate Professor Bolin considered that as the presence of a polyp was totally unexpected, it would not be reasonable to expect the surgeon to inform the patient of the risks of polyp removal. There were no signs or symptoms evidencing the presence of the polyp. 42 I accept that a responsible body of medical opinion would not have warned the plaintiff of the possibility of a polyp being found, much less of the risk of perforation of the duodenum, if endoscopic removal of the polyp was attempted. There would thus have been no cause to discuss with the patient the comparative benefits of endoscopic removal and open surgery. 43 The defendant had given the plaintiff a general warning that there was a risk of haemorrhage or perforation inherent in an endoscopic procedure. The endoscopy brochure confirmed this and made reference to the removal of polyps and that complications at the site of the polypectomy could occur. It referred to the complications of haemorrhage and perforation. The plaintiff was aware that there were risks inherent in every medical procedure. In my opinion, a general warning of the nature given was adequate considering the rarity of the events which in fact occurred. No specific warning of the possibility of the risk of perforation of the duodenum resulting from polypectomy was required. 44 If I am wrong in that conclusion it would be necessary to consider the issue of causation i.e. what would have occurred had an appropriate warning been given. 45 A defendant is not causally liable, and therefore legally responsible, for wrongful acts or omissions if those acts or omissions would not have caused the plaintiff to alter his or her course of action - Chappell v Hart (1997 - 1998) 195 CLR 232 at [32].The onus is on the patient to prove that he or she would have decided not to have the operation if given a warning of the risk of harm. That means that the patient must prove what he or she would have decided to do - Rosenberg v Percival (2001) 205 CLR 434 at 449 [45]. 46 Whether a patient would have undertaken a procedure, if warned of the risk of harm therein, involves a subjective test. It is not decisive that a reasonable person would or would not have undertaken a procedure although what a reasonable person would or would not have done in the patient's circumstances will almost always be the most important factor in determining whether the Court will accept or reject the patient's evidence as to the course that the patient would have taken. But what a reasonable person would have done is not conclusive. The finding which the Court must make is what this patient would have done if warned of the risk - Rosenberg v Percival at 443 [24]. 47 No evidence in chief was adduced from the plaintiff that, had she been warned of the risk of perforation on removing the polyp endoscopically, she would not have had that procedure.

[31]

Q. Had the possibility of surgery been raised with you, are you able to say what you would have agreed to with the doctor? A. It would all depend of how the surgery would have been performed and what risks were involved. 49 In Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 at 581 Samuels JA said: It is, of course, true that a patient's evidence about what he or she would have done if told of certain risks may be coloured by the fact that the risks did in fact eventuate; but it is open to a Court to disbelieve evidence found to be tainted by hindsight. 50 McHugh J in Rosenberg at [26] said: … human nature being what it is, most persons who suffer harm as a result of a medical procedure and sue for damages genuinely believe that they would not have undertaken the procedure, if they had been warned of the risk of that harm. 51 Matters bearing on what would have been the plaintiff's decision appear to me to be as follows: (a) the defendant, if he had referred to the risk of perforation of the duodenum resulting from the removal of the polyp would have told the plaintiff of the slight possibility that a duodenal polyp might be found and that the polyp was likely to be malignant or pre-malignant and that it should be removed. He would also have told her that there was a slight possibility that a perforation could occur in removing the polyp though he had never experienced such a perforation himself, and that, if in his opinion it was appropriate to do so he would remove the polyp endoscopically but would use open surgery if the circumstances indicated this was a preferable manner in which to proceed; (b) the plaintiff was concerned for her life and would not have been prepared to take no action in respect of the removal of the duodenal polyp which was potentially malignant or pre-malignant; (c) the plaintiff was conscious of her body image and would have wished to avoid unnecessary surgical scarring. She would therefore have favoured endoscopic removal over other procedures; (d) the plaintiff had been referred to the defendant by her general practitioner, presumably on his recommendation, express or implied. The defendant was an Associate Professor with particular expertise in the relevant area of speciality. It would be reasonable to infer the plaintiff would trust his judgment and technical expertise in relation to her treatment. Indeed she indicated she was prepared to undergo open surgery in respect of the gallbladder if in the defendant's opinion a conversion from keyhole surgery to open surgery was required; (e) the plaintiff is an intelligent and mature woman who would be guided by reason and common sense (subject to her fears about anaesthetics) in reaching her conclusion as to what future course she should take. She would have been mindful in making her decision of the factors referred to above. 52 The plaintiff's evidence quoted above [48] does not establish causation. Nor, in my opinion, can it be inferred. I have no doubt that had the defendant informed the plaintiff prior to the procedures being carried out that there was a slight possibility that a duodenal polyp would be encountered and that if the defendant considered it appropriate to do so he would remove it endoscopically at that time the plaintiff would have agreed to that course of action. This would be a reasonable response and there is no reason to apprehend that the plaintiff's subjective response would have been otherwise. 53 Accordingly I do not uphold this head of liability.

[32]

Failure to defer removal of the polyp 54 The alleged breach in this regard is particularised in the Amended Statement of as follows: (iv) Failure to restrict the said surgery performed on 21 December 1999 to the cholecystectomy, gastroscopy and colonoscopy procedures, reserving the duodenal polyp removal for an appropriate later time. 55 The plaintiff submitted the defendant's failure to restrict the surgery by reserving the duodenal polypectomy for a later time was negligent. The proper course, it was submitted, was to complete the visual inspection of the upper gastrointestinal tract and then withdraw the endoscope, without removing the polyp or taking a biopsy, and when the plaintiff had recovered from the anaesthetic to inform her of the findings and the options open to her and obtain her instructions as to the further course to be taken. 56 The plaintiff's submission was supported by Professors Williamson, Morris and Associate Professor Bolin save that each would have regarded it as a necessary procedure to take a biopsy before withdrawing. 57 The available options contended for were endoscopic removal or open surgery though laparoscopic surgery was also a possibility. No specialist advocated that nothing be done because of the likelihood the polyp was potentially cancerous or precancerous and the need for its prompt removal was mandatory. 58 Professors Williamson, Morris and Associate Professor Bolin advocated open surgery as the preferable way to proceed. This was because it was said to have fewer risks as the polyp could be clearly visualised and more space was available to remove it. 59 The defendant did not take the course of withdrawing without removing the polyp. In my opinion it was not incumbent on him to do so. He did not do so because his impression of the plaintiff was that she had a morbid fear of anaesthetic and would not consent to another anaesthetic if the procedure was not completed. In these circumstances he considered that the removal of the polyp was necessary as it was probably either malignant or premalignant. The alternative, advocated by the medical experts qualified for the plaintiff of taking a biopsy and then withdrawing, also involved a risk of harm particularly as a large sample or samples were required to ensure accurate pathology results were obtained. I note the plaintiff did not plead her case in trespass to the person nor was such a case pressed on hearing. 60 In my opinion the defendant did not act in breach of duty in removing the polyp and not deferring its removal. 61 If I am wrong in that conclusion the question of causation of injury would need to be considered. 62 The evidence of the plaintiff bearing on this question was: Q. Had surgery been required as a result of that endoscopy, what did you have in mind? A. I presume that after Dr Falk had a look and if he thought there was something to be, I needed the surgery, I would like him to explain the reason for it and what sort of surgery it would be. Q. And if there were optional versions of the surgery, in other words if you could do something endoscopically or if he had to do open surgery, what was your view about discussing that with the doctor as well? A. Well, if there was an open surgery required I would accept it because I would have thought about the possibility of open surgery for gallbladder. 63 On the available evidence the defendant, if he had deferred removal of the polyp and was properly advising the plaintiff would have told her: (a) he had found a duodenal polyp which should be removed; (b) there were three ways to remove it: (i) endoscopic snaring - he would be comfortable in removing it endoscopically. There was a risk of perforation but this was unlikely and had never occurred in any such procedure performed previously by him. Endoscopic removal would not cause any visible scarring and she would be back at work in 1 - 2 days; (ii) laparoscopy - this was a technically difficult procedure and he would prefer endoscopic snare removal. This procedure would result in minor scars and a period off work of 4 - 5 days; (iii) open surgery - this would enable the polyp to be clearly visible but involved some risks and would leave a relatively large scar. It would result in a greater period of absence from work. 64 In my opinion reasonable care did not require the defendant to advise open surgery, or laparoscopic surgery in preference to endoscopic snaring. The laparoscopic procedure was technically difficult and there was no clear cut advantage in having open surgery as opposed to endoscopic surgery where the latter was performed by an experienced and skilled endoscopist which the defendant, in my opinion, undoubtedly was. All procedures involve risks. Professor Morris indicated that in addition to scarring with open surgery there was a risk of wound dehiscence, peritonitis and sepsis as well as anaesthetic risks. Associate Professor Bolin was of the opinion that risks of surgical removal of a duodenal polyp were less than an endoscopic polypectomy: … unless you practice in a centre where there is a huge experience in removing these things and you act as a tertiary referral centre, so patients are sent from all around the State or from other countries.

[34]

Negligence in performance of endoscopy 67 The alleged negligence in this regard is particularised in the Amended Statement of Claim as follows: (ii) Failure to perform the surgery with reasonable skill and care; (iii) Failure to take reasonable precautions during the course of surgery to ensure that the plaintiff was not injured. 68 The plaintiff submitted "the way in which this procedure was carried out just speaks negligence on the part of the defendant." 69 In an appropriate case the fact of the accident by itself is sufficient in the absence of an explanation to justify the conclusion that most probably the defendant was negligent and that his negligence caused the injury (res ipsa loquitur). However, as Scott LJ said in Mahon v Osborne (1939) 2 KB 14 at 21 - 23: The presumption of fact only arises because it is an inference which the reasonable man knowing the facts would naturally draw, and that is in most cases for two reasons: (i) because the control over the happening of such an event rested solely with the defendant, and (ii) that in the ordinary experience of mankind such an event does not happen unless the person in control has failed to exercise due care … How can the ordinary Judge have sufficient knowledge of surgical operations to draw such an inference … what does he know of "the ordinary course of things" in a complicated abdominal operation. 70 That res ipsa loquitur has no application in this case is underscored by the medical evidence that injury such as occurred could occur in the course of a polypectomy without negligence on the part of the surgeon. As Professor Williamson accepted, diathermy injury can occur in the best of hands and was not necessarily the result of substandard care and there was a fine balance between arresting haemorrhage and destroying the tissue to remove the polyp. 71 It is thus necessary, if the plaintiff is to succeed, for her to establish by reference to the evidence, a negligent act or omission on the part of the defendant. 72 The main thrust of the plaintiff's case in this regard was that the size of the polyp and its sessile nature were such as to make it inappropriate for the defendant to proceed to endoscopic snare removal. There was no evidence that there were present any contraindicators for snare removal by reason that the polyp was obviously malignant or that the duodenum wall moved when the polyp was moved. 73 There was considerable debate as to the size of the polyp, whether there was a positive association between polyp size and perforation risk and whether the polyp could be removed safely by endoscopic snare removal. 74 There was evidence from Professors Williamson, Morris and Associate Professor Bolin that the larger the polyp the greater the risk as more diathermy was required. The defendant accepted that there was a correlation between the size of the polyp and the degree of hazard, though as Dr Hugh observed there was an absence of medical data to establish a positive association between polyp size and perforation risk. Dr Hugh did not accept such an association existed. Professor Morris accepted in cross examination that it was speculation on his part that the perforation occurred because it was a large polyp as a perforation can occur even in the smallest polyp. 75 Professor Williamson calculated the size of the polyp at 2.7 - 3 centimetres by adding together the size of the two pieces of polyp produced to the pathologist. In cross examination he conceded the figures calculated in that manner should have been 2.3 - 3 centimetres. His method of calculation was disputed by Dr Hugh and Associate Professor Yeo. Dr Hugh in his report dated 20 May 2005 (exhibit 2(1)) said: 3.7 The histopathology report indicates that the maximum measured diameter of the removed polyp was 20 mm. Although there was a second fragment with a maximum diameter of 10 mm there is no indication as to where in the morphology of the polyp this fragment was derived. It could easily have been from the base of the polyp, and it is stretching the facts to summate the largest diameters of these two fragments to obtain a spurious overall diameter exceeding 20 mm. In any case, I do not believe that the recommendation that polyps with a diameter > 20 mm should be removed by open operation has any supportable connection to the risk of endoscopic polypectomy perforation. 76 Associate Professor Yeo calculated the size of the polyp at approximately 1.8 centimetres. His method of calculation was criticised by Professor Williamson on the basis the premise adopted by Associate Professor Yeo as to the height of the polyp was not established. I do not regard either set of calculations as reliable. 77 The defendant said he used the endoscopic snare procedure to remove polyps up to 2 centimetres. He confirmed that the size of the polyp was not the subject of precise measurement whilst insitu and that the precise assessment of size was difficult. He accepted that the 2 centimetre diameter was an estimate and it was possible his estimate was not precise and that the polyp may have been as large as 2.5 centimetres. However he had four categories of polyp: tiny, moderate, large or too large to be removed endoscopically. If he did not feel confident about removing a polyp endoscopically he would not do so and instead would take pieces from it for biopsy or use an alternative procedure.

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82 Associate Professor Bolin gave the following evidence: Q. And as a consequence of Dr Falk having that degree of experience it is the case, is it not, that his skill and judgment at the time really was determinative of whether or not it was safe to excise the polyp? A. Yes. 83 The defendant gave evidence that almost all of the polyps which he had removed by the snare procedure were sessile and quite a good number were large. In his assessment the polyp was in the order of 2 centimetres in diameter. I accept his assessment of the polyp's size. The defendant's clinical judgment in this case based on his observations, skill and experience was that endoscopic removal of the polyp was appropriate. He was skilled and experienced in this area, more so than any other witness in the case. 84 Dr Hugh considered it was a matter for clinical assessment at the time by the surgeon to determine if it was safe to remove the polyp endoscopically. He considered the defendant's actions in removing the polyp were reasonable. Associate Professor Yeo considered the snare removal fully justified and that the defendant's care was of the highest standard. 85 In my opinion the plaintiff has not established the defendant was negligent in deciding that it was appropriate to remove the polyp using an endoscopic snare procedure. 86 The technique of polypectomy has a risk of perforation due to electrical cautering as there is necessarily some element of imprecision in the application of the current. The fact that a burn occurs does not indicate excessive diathermy as appropriate diathermy may cause a perforation. The evidence does not establish a lack of reasonable care in the application of the current by the defendant. 87 Professor Williamson suggested that it may have helped to inject the mucosa with saline to lift off a sessile polyp as an alternative to piecemeal removal. The plaintiff submitted that the defendant was negligent in not so doing. 88 The defendant agreed the use of a saline injection may be advantageous though its use may occlude the endoscopist's view and reduce the area within which he is to work. However in 1999 it was not his practice to inject the mucosa with saline nor was it common practice to do so. It was an alternative to piecemeal removal. He considered piecemeal removal was a safe option in this case. 89 Associate Professor Bolin gave evidence on this issue. He said the purpose of injecting saline was to elevate the polyp off the mucosa and make it more accessible to snaring thereby reducing the risk of perforation. He said that the use of saline injections in the removal of large polyps had been in evolution in the last 7 - 8 years. When asked if it would have been known in 1999 he replied "perhaps not". Dr Hugh and Associate Professor Yeo indicated it was not common practice to use such injections. 90 It was held in Rogers v Whittaker at 489: Whether a medical practitioner carries out a particular form of treatment in accordance with the appropriate standard of care is a question in the resolution of which responsible professional opinion will have an influential, often a decisive, role to play. 91 I accept the use of saline injections was not common practice among the medical profession in this country in December 1999. The fact the defendant was not using it at the time does not, in my opinion, bespeak negligence on his part. Further the evidence does not establish that the use of a saline injection would, more likely than not, have obviated the injury which occurred. 92 The hospital (Strathfield Private) at which the operation was performed did not possess an ultrasound machine at that time. There was however one available at Concord Hospital which was in the same geographical area. It was common ground that an ultrasound would enable one to determine the degree to which the polyp had burrowed into the duodenal wall before excision. 93 The plaintiff submitted that the defendant was negligent in not withdrawing and taking the patient to Concord Hospital at a later time in order to obtain an ultrasound and thus be better informed about the nature of the polyp. 94 Ultrasound equipment was apparently not widely available at that time and could be unreliable. The defendant gave evidence that ultrasound results at that time could be inaccurate and that ultrasound was an adjunct. However the same information as an ultrasound would have given was capable of being clinically determined by moving the polyp and determining if the duodenal wall moved when the polyp was moved. This was the generally accepted test at the time and it was the defendant's usual practice to perform that test. The pathology report confirmed there was no involvement of the muscle layer of the bowel. 95 Associate Professor Yeo agreed with Professor Morris that the endoscopic ultrasound was not an essential part of the plaintiff's management. Associate Professor Yeo confirmed that had endoscopic ultrasound been performed it would have agreed with the depth assessment of the polyp being superficial, thus adding strong support to an endoscopic removal of the polyp. In these circumstances it does not appear to me that the defendant's failure to defer the removal of the polyp until an ultrasound had been arranged indicated a lack of reasonable care on his part or was causative of injury. 96 In my opinion, it has not been established that the size of the polyp was causative of injury or that the defendant was in breach of the duty of care or contract in the performance of the snare procedure. 97 In my opinion the plaintiff has failed to establish liability on the part of the defendant. Accordingly there will be a verdict and judgment for the defendant with costs.

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The parents cleaned the flat and accompanied the plaintiff to medical examinations. 102 By the time the plaintiff's parents left Sydney in July 2000 the plaintiff's capacity to look after herself had improved and she was able to shower by herself, to walk and to drive a car locally. 103 When her parents left a female friend came daily to keep her company. One day each week she would do some work as the plaintiff could not vacuum, wash the floors or windows or cook or tend to a small garden. She would also help the plaintiff with supermarket shopping once a week and ironing. 104 On 12 September 2001 the plaintiff underwent scar revision surgery. This resulted in the reduction of the abdominal scarring to a relatively narrow scar extending from just below the umbilicus level to just below the throat. Photographs taken on 2 April 2002 (exhibit D) depict a neat, non keloid scar and that the umbilicus has been removed. The scar has matured since the photographs were taken and is now paler than depicted therein. The surgery effected some improvement in abdominal pain and, to my mind, a great cosmetic improvement. The plaintiff was in hospital for 7-9 days in relation to this surgery. 105 The plaintiff has continued to complain of lower back and stomach pains, frequency of bladder and bowel and headaches. She wears an incontinence pad which she finds distressing. The plaintiff complains of a very severe shooting pain in the abdomen which lasts a few seconds and can occur once a week or on a few days during the week. The plaintiff wears a corset which makes her "feel protected". She said she gets at least one headache per day, sometimes two or three and they sometimes last all week. She takes Panamax for the headaches, two to eight tablets per day. They provide some relief. Additionally the plaintiff complains of painful shoulders, that she feels "ugly" and that her social life is almost non existent. She is presently able to walk for half to three quarters of an hour at a slow pace and then has to sit down due to pain in her stomach and back. 106 The plaintiff has consulted her general practitioner, Dr Trjilkovic regularly. She has been referred to various specialists and has had physiotherapy and chiropractic treatment. The latter helped straighten her upper back which had become curved from being nursed in a "banana position". She was referred to the Pain Management Clinic at Prince of Wales Hospital. There she was prescribed Endone for her stomach and back pain. She says she continues to take Endone up to four a day and sometimes six per day though they do not completely rid her of the pain and discomfort which she suffers. 107 The plaintiff claims she has lost her sense of taste, has difficulty keeping food down and cannot eat spicy foods as she complains of problems with swallowing, digestion and constant reflux. These symptoms have not improved. She cannot eat normal sized meals and as a result has increased the number of meals she eats each day. Dr Vickers has told her to avoid spicy food, sparkling drinks, chocolate, acidic food. Her weight has increased from 70 kilograms pre operatively to 100 kilograms at present. Despite dieting (under the advice of her general practitioner and a dietician) and exercise supervised by a personal trainer her weight has not reduced. The plaintiff is a smoker. 108 The plaintiff has sought assistance from psychiatrists and psychologists. She currently takes prescribed antidepressants which "help me a bit". Her sleep is disturbed by pain and she has nightmares 3-5 days per week about hospitals. She takes a prescribed sleeping tablet each night. 109 On 20 January 2004 the plaintiff consulted a cardiologist for chest pain. An angiogram was clear. The plaintiff continues to have chest pains from time to time but it appears the source of the problem is oesophageal for which she has come under the care of Dr Vickers. 110 The plaintiff had been diagnosed with scoliosis when she was 15 or 16. She suffered back pains from time to time. By 1996 the pain was occurring every 2 - 3 weeks and lasting a few days. Radiological evidence at the time showed disc damage with degenerative changes in the lumbar spine. The plaintiff was referred to Dr Pillemer in respect of her back pain in 1996. In 1997 she attended a physiotherapist for her back. She continued to have intermittent back pain up to her hospitalisation though she said it did not prevent her doing anything. 111 The plaintiff continued to live in her townhouse for a time. In 2002 she formed a romantic attachment with a male friend and in October 2002 commenced to live with him in his two bedroom flat. By 2004 the romantic side of the relationship had ended as the plaintiff said she could not deal with a romantic partnership. The plaintiff and her friend continue to live together in the two bedroom flat. The friend at all times has employed a cleaner to attend to the cleaning of the flat. That was the case before the plaintiff came to live with him. 112 The plaintiff travelled to Europe on a number of occasions from June 2001 to 2004, generally alone. 113 The plaintiff attempted to resume work with Centrelink in the latter part of 2000 but said she found she was not able to sit by the computer for more than an hour due mainly to pain in her back and abdomen nor was she able to concentrate for more than an hour. The plaintiff made further attempts to resume work with Centrelink but suffered the same difficulties and in 2002 resigned due to health reasons. She considered she was unable to do any work between ceasing with Centrelink and 2005. 114 In March 2005 the plaintiff was employed in a travel agency by the person with whom she was living. The arrangement was that the plaintiff would work three afternoons per week doing clerical work for two to three hours each afternoon. The plaintiff said she was unable to work for two to three hours because: Just being there constantly at a desk and answering the phones or doing some filing, I just - I couldn't do it. I was in too much pain, I couldn't. I would answer the phone and I would put the person on hold and I would forget the person's number, so that would make me very upset.

[42]

The work days were reduced to two per week but the plaintiff said, she was unreliable as her pain levels caused her on occasions to be unable to attend on the required days. The plaintiff ceased this work in August 2005 when a full time employee was hired to do the plaintiff's work. 115 The plaintiff has not sought work since August 2005. She gave evidence as follows: Q. Do you think you could do any work at all on a steady basis? A. I don't know what I could do. 116 The plaintiff says the major source of pain, which is in the back and abdomen, varies from morning to evening and from day to day. At least three to four days per week the plaintiff says the pain is at such a level that she cannot contemplate going out or doing things. This would prevent her attending work on those days. In addition she continues to have difficulty in sitting at a computer or concentrating for more than an hour and in remembering things. The latter problems have not improved despite strategies suggested to her by psychiatrists and psychologists. 117 The defendant asserted the plaintiff had exaggerated her disability as she had been able to travel overseas on a number of occasions, generally by herself. A number of her complaints were not related to the perforation. 118 I would accept that symptomatic spinal pathology pre-existed the perforation but find the symptoms thereof were exacerbated as a result of the plaintiff being nursed in hospital in a banana position and by deconditioning of her musculature during her stay in hospital and convalescence. I would accept the effect of the exacerbation is continuing but decreasing and in time will be overtaken by the underlying degeneration. 119 I would accept the plaintiff, as a result of the perforation, has some ongoing stomach pain, abdominal scarring which is distressing to her as she is a woman conscious of her body image, a problem of urinary and faecal urgency which she finds embarrassing though she is normally able to manage the problem and avoid accidents and she suffers from headaches. 120 I would accept the opinion of Dr Skinner that the plaintiff is suffering from an adjustment disorder rather than a major depression. This essentially accords with the opinion of Dr Ellard who was qualified on behalf of the plaintiff. I prefer that diagnosis to that put forward by Dr Sokolovic. 121 Although the plaintiff effectively asserts she is unable to work and has little social life that is to be contrasted with the fact she able to drive a car and to travel overseas and for a time did share a romantic relationship. 122 On 21 December 2005 Dr Henke, who was qualified for the defendant reported (exhibit 2): This woman's presentation at this consultation was very similar to that seen in 2002. Once again her presentation appears to be predominantly that of a person with complaints of back and hip pain with lesser abdominal discomfort including some epigastric pain and gastric reflux. She also has urinary and faecal urgency and describes episodes of incontinence although these appear to be infrequent. The extent of the physical symptoms and incapacity appears far greater than that which can be explained by the demonstrable pathology … Her current presentation again demonstrates symptoms predominantly those of mechanical origin arising from degenerative changes in her lower back. There is no evidence of any neurological dysfunction in the spine. I am unable to comment on the issues of her continence … Giving an exact recommendation of her needs remains difficult due to the psychological component of her symptoms. It would be expected that there is a reasonable probability that there will be an improvement in her symptoms on completion of any legal action and therefore this makes the definition of the exact need requirements of this lady difficult. One would therefore feel that although there has been only a minor improvement in her symptoms in the past two years there is still some potential for further improvement. It is somewhat surprising that she has been able to tolerate a number of flights to and from Europe despite her ongoing symptoms. These would appear on the basis of her description of her symptoms to be beyond her physical capacity. Again this may add some weight to the feeling that emotional issues add to the severity of her symptoms … This woman remains unfit for work where she is required to sit or stand for prolonged periods or carry loads greater than 5kgs for extended periods. I remain of the view that she has potential to work 3 - 4 hours per day doing clerical type duties. Indeed it is felt that there may be some psychological benefit to try and get this lady back into the workplace to try to add some positive input to her life.

[44]

Quantum 124 I make the following comments as to the assessment of damages. (a) General damages - the defendant suggests a range of $150,000 - $170,000. The plaintiff suggests $220,000. I would award $180,000 with interest at 2% on 2/3 of that sum; (b) Past out of pocket expenses - the plaintiff claims a total of $86,889.19. The defendant objects to $4,930.65 of that claim on the basis the items have not been shown to be a consequence of the perforation. I would award $85,000 together with interest at 6% on such of the monies as were not paid by Medicare; (c) Future out of pocket expenses - the plaintiff claims $219,217.60. The claim comprises: (i) surgery: $20,000; (ii) pharmaceuticals: $53,721.60; (iii) health store: $145, 496. The defendant contends there is no evidence to support items (i) and (iii). That appears to be correct. The defendant would allow $10,000 - $15,000 for painkillers and antidepressant medication. I would allow $25,000; (d) Past economic loss - the plaintiff effectively claims total loss of wages from 28 December 1999 to date less the plaintiff's earnings during that period. The defendant concedes total incapacity to 30 June 2000 and thereafter loss of wages on the basis of a partial incapacity for work calculated at 10 hours per week. The plaintiff was totally incapacitated when undergoing and convalescing from the scar revision surgery in 2001 as well as the initial period of hospitalisation and convalescence. She is entitled to be compensated for total incapacity for those periods. I would also allow total incapacity from 28 December 1999 to 1 January 2001. Otherwise I would allow partial incapacity calculated at 50% of the earnings which the plaintiff would have received from Centrelink if uninjured. I would allow interest on past economic loss at 6%. I would allow past loss of superannuation calculated at 8% of the gross loss of earnings and interest thereon at 6%; (e) Impairment of future earning capacity - the plaintiff claims total loss to age 65 less 15% for vicissitudes. The defendant contends an appropriate award would be a cushion in the amount of $45,000 - $90,000. I would allow impairment of future earning capacity calculated at 50% of the earnings she would have received from Centrelink had she continued to work there and been uninjured. I would calculate the loss to age 62 rather than 65 to allow for the likely effect of the plaintiff's pre-existing conditions particularly that of the back. I would reduce the figure assessed by a further 10% for remaining contingencies. I would allow future loss of superannuation calculated at 9% of the gross loss of earnings; (f) Past domestic assistance - the plaintiff claims past domestic assistance at an average of 11 hours per week to date. The defendant submits that insofar as part of that claim was for emotional support it is not compensable. The plaintiff expressly did not press that part of the claim. The defendant contends the assessment should be calculated at an average of 3 hours per day from the day the plaintiff was discharged from hospital (12 April 2000) to 12 July 2000 and thereafter at 1 hour per day to 1 November 2002 thereafter nil. The defendant points to the evidence that the cleaner employed by the friend with whom the plaintiff has lived since the end of October 2002 cleans the house, does the ironing and any heavy tasks. It is submitted that in those circumstances the plaintiff is not entitled to compensation for domestic assistance. I would accept the defendant's submission. I would allow interest on past domestic assistance at 6%; (g) Future domestic assistance - the plaintiff claims future domestic assistance at an average of 11 hours per week. The defendant contends this claim should be rejected. In my opinion the plaintiff would have difficulty in performing heavy cleaning tasks which could give rise to a compensable need if she was to cease to live with her friend or he ceased to employ a cleaner. The plaintiff may have had a need to employ a cleaner herself, irrespective of the perforation due to an increase of disability resulting from to her pre-existing back condition and other problems. In these circumstances I would award the plaintiff assistance for an average of 2 hours per week to age 70. Orders 125 I make the following orders:

Verdict and judgment for the defendant;
The plaintiff to pay the defendant's costs.

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Judgment (45 paragraphs)

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