Marko v Falk [2008] NSWCA 293 | Case summary

19 The primary judge referred to the duty the respondent owed the appellant, whether expressed in tort or as breach of an implied term of contract, as stated in Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479 (at 483): "The law imposes on a medical practitioner a duty to exercise reasonable care and skill in the provision of professional advice and treatment. That duty is a 'single comprehensive duty covering all the ways in which a doctor is called upon to exercise his skill and judgment'; it extends to the examination, diagnosis and treatment of the patient and the provision of information in an appropriate case. It is of course necessary to give content to the duty in the given case. The standard of reasonable care and skill required is that of the ordinary skilled person exercising and professing to have that special skill …" 20 Applying that passage, his Honour held that the standard of reasonable care and skill required of the respondent was that of a surgeon specialising as an upper gastrointestinal surgeon endoscopist who practiced at a tertiary referral centre. The appellant does not challenge that conclusion. 21 The primary judge then dealt with the appellant's case that the respondent breached his duty of care because he undertook three surgical procedures under the same anaesthetic, because of the order in which he performed the three procedures and because he failed to warn or advise of the risks of the operation pre-operatively. He found against the appellant in all three respects. His conclusions in this respect are no longer challenged. Accordingly, it is unnecessary to recount his Honour's reasons in detail, although some observations he made in the course of dealing with them should be noted. 22 The primary judge found (at [34]) that "[t]he risk of a polyp being encountered was rare [and] [t]he risk that a polyp would be encountered and that a perforation would occur, particularly at the hands of the [respondent], was remote". Expanding on this proposition, his Honour said: "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. 39 Thus the risk of the injury to the plaintiff which in fact eventuated required the conjunction of two rare events." (emphasis added) 23 The primary judge made detailed findings about the question whether the respondent should have deferred removal of the polyp and then discussed the options available for its removal with the appellant. They should be set out in full: " Failure to defer removal of the polyp 54 The alleged breach in this regard is particularised in the Amended Statement of Claim 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.' The defendant, of course, performed polypectomies in tertiary referral circumstances with referrals of difficult cases to him from Sydney and throughout the State. Associate Professor Bolin was unaware that the defendant operated in such a centre. The difference between the experts on this question was primarily one dependant upon their area of practice. As Professor Williamson accepted, it was a matter for clinical judgment as to which procedure should be performed. 65 In my opinion it is probable the plaintiff would have instructed the defendant to proceed with an endoscopic snare removal which would entail the same risks as if the procedure had been carried out initially. Deferring the procedure would have simply exposed the plaintiff to additional risks involved in taking a biopsy during the first procedure. 66 The plaintiff's evidence recorded at [62] above does not establish she would have instructed the defendant to take some other course than endoscopic removal of the polyp. Nor should it be inferred. In my opinion the plaintiff has not established causation. I do not uphold this head of liability." (emphasis added) 24 Importantly, the primary judge held that even if the respondent had taken the course for which the appellant contended, namely deferred removal of the polyp, she would still have decided that the polyp should be removed by the endoscopic snare method, a method which would have entailed the same risks as if the procedure had been carried out initially. The appellant has not challenged that conclusion. 25 The main thrust of the appellant's case at trial, as it is on appeal, was that the size of the polyp and its sessile nature made it inappropriate for the respondent to proceed with endoscopic snare removal: primary judgment (at [72]). The appellant's case was that "the way in which this procedure was carried out just speaks negligence on the part of the defendant": primary judgment (at [68]). The primary judge said of this submission: "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." (emphasis added) 26 The primary judge found (at [72]) that there was no evidence that there were any contraindicators for snare removal by reason that the polyp was obviously malignant or that the duodenum wall moved when the polyp was moved. 27 His Honour then considered the evidentiary debate about the size of the appellant's polyp. This was relevant to the question whether there was a positive association between polyp size and perforation risk: primary judgment (at [73]). Professor Williamson, Professor Morris and Associate Professor Bolin gave evidence that such a relationship existed. According to them, the larger the polyp the greater the risk as more diathermy was required. The respondent accepted that there was a correlation between the size of the polyp and the degree of hazard. Dr Hugh did not accept such a relationship. In his view there was no medical data to establish a positive association between polyp size and perforation risk. His Honour noted that Professor Morris accepted that it was speculation on his part whether the perforation occurred because it was a large polyp, because a perforation can occur even in the smallest polyp: primary judgment (at [74]). 28 The primary judge accepted the respondent's evidence that the polyp was in the order of 2 centimetres in diameter: primary judgment (at [83]). There is no challenge to this finding. 29 The respondent's evidence was that he used the endoscopic snare procedure to remove polyps up to 2 centimetres: primary judgment (at [77]). It was his usual practice to use a blended current for diathermy, which reduced the likelihood of a burn injury, and to remove large polyps piecemeal further reducing the risk of a burn injury. He said he had removed the appellant's polyp piecemeal: primary judgment (at [79]). 30 The primary judge recorded the evidence of two of the appellant's experts concerning the respondent's method of removing the polyp: "79…Professor Williamson accepted that one way of obviating the risk when you have a large sessile polyp is to do piecemeal surgery. Professor Morris accepted many sessile polyps could be removed safely endoscopically and agreed piecemeal removal could decrease the risks of full thickness burns." 31 There were no guidelines and no specific standards as at December 1999 as to the size and type of polyp which might be endoscopically removed by the snare procedure. There was evidence that at the time of trial duodenal polyps up to 4 centimetres in diameter were routinely removed by the endoscopic snare procedure: primary judgment (at [80]). 32 Both Professor Williamson and Associate Professor Bolin accepted that the decision to do endoscopic removal of the polyp was a matter of clinical judgment for the respondent based on what he observed and in the light of his skills and experience as to whether it was safe to excise the polyp in this manner: primary judgment (at [81] - [82]). 33 Dr Hugh also 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: primary judgment (at [84]). In his view, the respondent's actions in removing the polyp were reasonable. Associate Professor Yeo considered the snare removal fully justified and that the respondent's care was of the highest standard: primary judgment (at [84]). 34 The primary judge found that the respondent was skilled and experienced in his area of expertise and, indeed, was more experienced than any other witness. He concluded that the respondent's decision to remove the polyp endoscopically involved an exercise of his clinical judgment based on his observations, skill and experience: primary judgment (at [83]). 35 The primary judge noted that the technique of polypectomy had a risk of perforation due to electrical cautering as there was necessarily some element of imprecision in the application of the current. He found that the fact that a burn occurs did not indicate excessive diathermy as appropriate diathermy may cause a perforation. He concluded the evidence did not establish a lack of reasonable care in the application of the current by the respondent: primary judgment (at [86]). 36 The primary judge considered Professor Williamson's evidence that it may have helped to inject the mucosa with saline to lift off the sessile polyp as an alternative to piecemeal removal. Associate Professor Bolin said that the use of that technique could have decreased the risk of perforation. However, he accepted that the technique had been in evolution "in the last 7-8 years" (I assume that means up to the year of trial in 2006) and may not have been known in 1999. Dr Hugh and Associate Professor Yeo said the use of saline injections was not common practice. 37 The primary judge accepted that the use of saline injections was not common practice in the medical profession in Australia at the relevant time: see primary judgment (at [89], [91]). He held that the fact the respondent was not using saline injections at the time did not bespeak negligence on his part and also that the evidence did not establish that the use of a saline injection would, more likely than not, have obviated the injury which occurred: primary judgment (at [91]). 38 The primary judge concluded that the appellant had not established that the size of the polyp was causative of injury or that the respondent was in breach of his duty of care or contract in the performance of the snare procedure: primary judgment (at [97]). 39 In case he had erred on liability, the primary judge considered the issue of damages. Although the Notice of Appeal generally challenges his Honour's assessment, in oral submissions the appellant did not pursue the challenge to the award of $180,000 for general damages. I shall, therefore address his Honour's findings on the issue of economic loss and domestic assistance. 40 There was no doubt that the appellant suffered extensive pain and discomfort as a result of developing sepsis. She was in hospital for approximately four months. She suffered scarring and had to undergo scar revision surgery. She continued to complain of lower back and stomach pains, frequency of bladder and bowel, and headaches. She said she had lost her sense of taste, had difficulty keeping food down and could not eat spicy foods as she had problems with swallowing, digestion and constant reflux. She had been diagnosed with scoliosis when she was 15 or 16, and said she continued to have intermittent back pain up to her hospitalisation, although she said that did not prevent her from doing anything. 41 The appellant resumed work in the latter part of 2000 but said she found she was not able to sit by her 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. She resigned in 2002 due to health reasons. She said at trial that she was unable to do any work between ceasing her employment in 2002, and 2005. She obtained employment in a travel agency in 2005, working a few hours a day, three days a week. She said she was unreliable as her pain levels caused her on occasions to be unable to attend on the required days. She ceased this work in August 2005 when a full time employee was hired. She had not worked since, and said she did not know what she could do. 42 The primary judge held: "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." 43 His Honour referred to the report of Dr Henke, who was qualified for the respondent, who opined that the appellant had the potential to work 3 - 4 hours per day doing clerical type duties. He agreed with these comments save that in his view, the appellant's ultimate capacity to work in clerical type duties was likely to be greater than 4 hours per day. 44 His Honour also accepted Dr Skinner's opinion that the appellant would not remain an invalid in her future life with respect to her psychiatric condition. He did not agree that she would remain dependant on psychiatric treatment in the future. 45 Based on those findings, his Honour assessed the appellant's damages as follows (at [124]): "(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." 46 As I have said, after undertaking the calculations required by his Honour's assessment, the parties agreed that the appellant would have been awarded $797,956.91 if she had succeeded on liability. Consideration 47 The appellant's Amended Notice of Appeal agitated five grounds of appeal: "1. His Honour erred in finding that the Respondent did not breach his duty of care or contract to the Appellant by preferring polypectomy to open or laparoscopic surgery. 2. His Honour erred in failing to find the Respondent breached his duty of care or contract to the Appellant by removing a large sessile polyp by polypectomy. 3. Alternatively to Ground 2, His Honour erred in failing to find that the Respondent breached his duty of care or contract to the Appellant in that he removed a large sessile polyp: - [i] without having first injected a saline solution; and/or [ii] without having first secured adequate vision of the polyp's far side; and/or [iii] whilst engaging the appellant in a colonoscopy procedure; and/or [iv] without inserting a drain at the same time 4. (a) His Honour erred in not [or not adequately] taking into account evidence of the Respondent in cross examination, which included that large sessile polyps were generally too hazardous to remove by polypectomy. (b) His Honour erred in mistaking the evidence of the Respondent in cross-examination by not assigning to it the categorisation of concession or admission. 5. His Honour erred in his assessment of damages." 48 Mr M Neil of Queen's Counsel appeared for the appellant with Mr C Stewart on appeal, but not at trial. His essential submission was that the Court should conclude that the respondent was negligent in the manner in which he removed the polyp for two reasons. First, because he could not see the far side of the polyp. Secondly, because the inference that he was negligent could be drawn from the fact that the appellant's duodenum was perforated. The latter submission appeared to agitate the res ipsa loquitur claim the primary judge rejected. Although not expressly referred to in the Amended Notice of Appeal, I am prepared to accept it is possibly subsumed in ground 2 as the appellant's written submissions contended. The respondent did not complain about it being raised. 49 Mr Neil argued that there was a risk that the duodenum wall would be burnt during piecemeal removal because where a polyp was large and sessile, lack of visualisation of the polyp's far side meant that it was not possible to know where to put the snare safely. He contended that it could not be assumed that the polyp's configuration was the same on both sides, so it was not possible in such circumstances to know how far the base of the polyp had invaded the duodenum wall on the far side. In particular, he drew attention to the risk of "tenting", where the duodenum wall is inadvertently pulled up by the snare so that the duodenum wall, not the stalk of the polyp, is burnt during snare removal. He submitted that piecemeal removal was therefore inappropriate in the circumstances and that the respondent should have completed the endoscopy without removing the polyp. 50 Mr Neil submitted that the evidence bespoke negligence. In his written submissions, he relied on a passage from Professor P B Cotton, Practical Gastrointestinal Endoscopy, (4th ed 1996), Chapter 10 at 298, a work tendered in the respondent's case which the latter said was a primer for training endoscopists. Under the heading "Polypectomy outside the colon", the author stated: "The wall of the duodenum and small intestine is thin and there is a corresponding need for caution in snaring and electrosurgery…the major indication for duodenal polypectomy is in patients with familial adenomatous polyposis. The large sessile polyps that occur in about 10% of these patients are too hazardous to remove… " (emphasis added)

In the appellant's written submissions, the word "endoscopically" was inserted in parentheses after the word "remove". Mr Neil did not explain the basis on which it was suggested that word should be inserted. 51 The passage I have emphasised was that which appeared in the appellant's written submissions. After extracting that quote, the written submissions argued, "the respondent was never able to explain why in the appellant's situation, he had acted contrary to such accepted wisdom". It was submitted that on the basis of that extract alone, there should have been a verdict for the appellant. Alternatively the appellant relied on res ipsa loquitur. 52 A number of comments may be made about that submission which require the passage to be put in the context of the unitalicised passage I have included from Professor Cotton's work. 53 First, it will be noted that the passage refers to "patients with familial adenomatous polyposis", a condition Professor Williamson said that the appellant did not have. People with that condition tend to form polyps as a familial trait. 54 Secondly, when this passage from Professor Cotton's work was put to the respondent, he disagreed with the proposition that it meant the author "regarded large sessile polyps as too hazardous to remove". He appears to have accepted there was a hazard in the treatment of large sessile polyps, but thought the quote was a generalisation. 55 Thirdly, and more importantly, on page 287 of the same book the following appears: " Problem polyps Sessile polyps Having appreciated the principles of current density in electrocoagulation, it should be obvious why removal of large sessile polyps (Fig.10.29a) or broad-stalked polyps presents problems to the endoscopist. Fortunately, many so-called 'sessile' are simply semipedunculated and can be pulled up by the snare onto an adequate and compressible pseudostalk. Having snared a polyp, the closed snare should always be moved to and fro; if the mucosa moves, but not the bowel wall, there is no danger; if the colon moves too, the full thickness of the wall has been 'tented' (Fig.10.29b) and the snare should be repositioned to take only a smaller part. If a polyp base is over 1.5 cm in diameter, without a stalk, the safe course is to take the head piecemeal in a number of bits (Fig. 10.30); each bit can be cut through with no risk of full-thickness burns and little risk of bleeding since the vessels of the head are much smaller than those in the stalk. With the submucosal injection technique described below, however, it may be possible to remove flat sessile polyps up to 1.5 - 2 cm in diameter in a single specimen. Sometimes a sessile polyp is better removed by surgery (or laparoscopy), but this should be a matter of expert opinion and clinical judgment; sessile polyps up to 5 cm in diameter can be removed, providing that the hazards and the trauma involved are appreciated by all concerned and that the endoscopist is very experienced. As a rule of thumb it has been suggested that sessile polyps occupying more than one-third of the colon circumference, or involving two haustral folds, are too big for safe endoscopic removal. If in doubt it is better to make repeated piecemeal attempts at different sessions to lessen the chance of full-thickness heat damage to the bowel wall, to give time for histological assessment (surgery will be indicated if any piece contains malignancy) and to allow the site to be checked for recurrent polyp tissue. The endoscopic approach is the obvious one in a patient who is a bad operative risk and is prepared to accept repeated endoscopy. In a younger patient, or if there are technical difficulties, it may be better sometimes to admit that the risks of surgery are not excessive compared to the trials of aggressive endoscopy, which may not remove all neoplastic tissue, or the use of a laser which destroys the evidence." 56 In my view, this passage directly contradicts the appellant's reliance on the earlier short extract from Professor Cotton's work. It supports the proposition that the question whether a sessile polyp is removed by surgery, laparoscopy or endoscopy is "a matter of expert opinion and clinical judgment, not that they are "too hazardous to remove" and, further, that if "a polyp base is over 1.5 cm in diameter, without a stalk, the safe course is to take the head piecemeal in a number of bits", a proposition which was illustrated in Figure 10.30. As I have said, the primary judge accepted the respondent's evidence that the appellant's polyp measured approximately 2 cm in diameter. There was no issue that he removed the polyp piecemeal. Accordingly, rather than demonstrating the apparent negligence of the respondent, as the appellant submitted, Professor Cotton's work supported the proposition that the respondent acted in accordance with accepted practice in removing it as he did. 57 The passage I have emphasised from Professor Cotton's work also advised that once snared a polyp should be moved to and fro to determine whether in doing so the colon moved as well. If it moved, that demonstrated the full thickness of the wall had been "tented" (i.e. the snare had captured the intestinal wall as well as the polyp) so that there was a risk of mechanical perforation of the duodenal wall if the polyp was removed endoscopically. In this case the respondent performed that test and the appellant's duodenal wall did not move: see primary judgment (at [72], [94]). 58 Mr Neil also submitted that independently of Professor Cotton's work and the medical evidence accepted at trial, the Court could hold the appellant must have undertaken the endoscopic removal of the polyp negligently because the appellant's duodenum was perforated. He argued that Rogers v Whitaker left this course open. 59 In Rogers v Whitaker the defendant was an ophthalmic surgeon who failed to warn Mrs Whitaker, the plaintiff (who was almost totally blind in her right eye) of the possibility that if he operated on her right eye, there was a risk, said to occur only once in approximately 14,000 such procedures, of a development of sympathetic ophthalmia in her left eye. The defendant argued that in not warning Mrs Whitaker of this risk, he was acting in accordance with the standards of the medical profession generally. The High Court held that those standards were not determinative, that he should have warned the patient, and that he was liable to compensate her. 60 In their joint judgment, Mason CJ, Brennan, Dawson, Toohey and McHugh JJ considered (at 483 - 484) the operation of the "so-called Bolam principle, derived from the direction given by McNair J to the jury in the case of Bolam v Friern Hospital Management Committee [1957] 1 WLR 582; [1957] 2 All ER 118." They observed that in Sidaway v Board of Governors of Bethlem Royal Hospital [1985] UKHL 1; [1985] AC 871 (at 881), Lord Scarman stated the Bolam principle in these terms: "The Bolam principle may be formulated as a rule that a doctor is not negligent if he acts in accordance with a practice accepted at the time as proper by a responsible body of medical opinion even though other doctors adopt a different practice. In short, the law imposes the duty of care: but the standard of care is a matter of medical judgment." 61 There was evidence from a body of reputable medical practitioners that, in the circumstances of the case, they would not have warned Mrs Whitaker of the danger of sympathetic ophthalmia. There was also evidence from similarly reputable medical practitioners that they would have given such a warning: Rogers v Whitaker (at 484). 62 Their Honours said that the basis of the Bolam principle lay in the recognition that, "in matters involving medical expertise, there is ample scope for genuine difference of opinion and that a practitioner is not negligent merely because his or her conclusion or procedure differs from that of other practitioners". They referred (at 484 - 485) to authorities in which the Bolam principle had been applied in cases of competing medical opinion and in which it had been held, in short, that the plaintiff had not discharged the onus of proving the medical practitioner had failed to exercise the ordinary skill of a doctor practising in the relevant field. They considered (at 485 - 486) the division in the House of Lords in Sidaway as to whether the Bolam principle should apply in a case concerning an allegation of failure to warn a patient of inherent risks of proposed treatment. The majority of the House of Lords in Sidaway (Lord Scarman dissenting) held that it did. 63 They then referred (at 486 - 487) to shortcomings in the application of the Bolam principle in cases involving the provision of advice or information. In such cases, if it was applied, then "even if a patient asks a direct question about the possible risks or complications, the making of that inquiry would logically be of little or no significance; medical opinion determines whether the risk should or should not be disclosed and the express desire of a particular patient for information or advice does not alter that opinion or the legal significance of that opinion". 64 In their Honours view (at 487, footnotes omitted): "In Australia, it has been accepted that the standard of care to be observed by a person with some special skill or competence is that of the ordinary skilled person exercising and professing to have that special skill. But, that 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 or trade. Even in the sphere of diagnosis and treatment, the heartland of the skilled medical practitioner, the Bolam principle has not always been applied. Further, and more importantly, particularly in the field of non-disclosure of risk and the provision of advice and information, the Bolam principle has been discarded and, instead, 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'." 65 The Court considered and approved F v R (1983) 33 SASR 189 in which King CJ held that expert medical evidence could not exclusively determine whether a medical practitioner had been negligent in failing to warn a patient of the risks in an operative procedure. They then said (at 489, footnotes omitted): "Acceptance of this approach does not entail an artificial division or itemization of specific, individual duties, carved out of the overall duty of care. The duty of a medical practitioner to exercise reasonable care and skill in the provision of professional advice and treatment is a single comprehensive duty. However, the factors according to which a court determines whether a medical practitioner is in breach of the requisite standard of care will vary according to whether it is a case involving diagnosis, treatment or the provision of information or advice; the different cases raise varying difficulties which require consideration of different factors . Examination of the nature of a doctor-patient relationship compels this conclusion. There is a fundamental difference between, on the one hand, diagnosis and treatment and, on the other hand, the provision of advice or information to a patient. In diagnosis and treatment, the patient's contribution is limited to the narration of symptoms and relevant history; the medical practitioner provides diagnosis and treatment according to his or her level of skill. However, except in cases of emergency or necessity, all medical treatment is preceded by the patient's choice to undergo it. In legal terms, the patient's consent to the treatment may be valid once he or she is informed in broad terms of the nature of the procedure which is intended. But the choice is, in reality, meaningless unless it is made on the basis of relevant information and advice. Because the choice to be made calls for a decision by the patient on information known to the medical practitioner but not to the patient, it would be illogical to hold that the amount of information to be provided by the medical practitioner can be determined from the perspective of the practitioner alone or, for that matter, of the medical profession. 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 ; whether the patient has been given all the relevant information to choose between undergoing and not undergoing the treatment is a question of a different order. Generally speaking, it is not a question the answer to which depends upon medical standards or practices…" (emphasis added) 66 Gaudron J expressed concern (at 492) about a duty of care for medical practitioners expressed as a "single comprehensive duty" covering diagnosis, treatment and the provision of information and advice. Such a statement, in her view, said " nothing worthwhile … as to the content of the duty" and "fails to take account of the considerable conceptual and practical differences between diagnosis and treatment, on the one hand, and the provision of information and advice, on the other." She said (at 492 - 493, footnotes omitted): "The duty involved in diagnosis and treatment is to exercise the ordinary skill of a doctor practising in the area concerned. To ascertain the precise content of this duty in any particular case it is necessary to determine, amongst other issues, what, in the circumstances, constitutes reasonable care and what constitutes ordinary skill in the relevant area of medical practice. These are issues which necessarily direct attention to the practice or practices of medical practitioners. And, of course, the current state of medical knowledge will often be relevant in determining the nature of the risk which is said to attract the precise duty in question, including the foreseeability of that risk. The matters to which reference has been made indicate that the evidence of medical practitioners is of very considerable significance in cases where negligence is alleged in diagnosis or treatment. However, even in cases of that kind, the nature of particular risks and their foreseeability are not matters exclusively within the province of medical knowledge or expertise. Indeed, and notwithstanding that these questions arise in a medical context, they are often matters of simple commonsense. And, at least in some situations, questions as to the reasonableness of particular precautionary measures are also matters of commonsense. Accordingly, even in the area of diagnosis and treatment there is, in my view, no legal basis for limiting liability in terms of the rule known as 'the Bolam test' which is to the effect that a doctor is not guilty of negligence if he or she acts in accordance with a practice accepted as proper by a responsible body of doctors skilled in the relevant field of practice. That is not to deny that, having regard to the onus of proof, 'the Bolam test' may be a convenient statement of the approach dictated by the state of the evidence in some cases. As such, it may have some utility as a rule-of-thumb in some jury cases, but it can serve no other useful function." (emphasis added) 67 The plurality cited three decisions in support of the proposition that the standard of care to be observed by a skilled person was not determined solely by reference to practice in the relevant profession or trade. In the first, Florida Hotels Pty Ltd v Mayo [1965] HCA 26; (1965) 113 CLR 588, architects retained to supervise and inspect the execution of certain works in accordance with plans and specifications failed to inspect reinforcing mesh before concrete was poured. When the framework was removed, the slab collapsed, injuring an employee. Evidence was led at the trial of the practice of architects where an obligation for periodic inspection or supervision is accepted. Barwick CJ (with whom Kitto, Taylor and Menzies JJ agreed) described that evidence (at 593) as "[u]seful and persuasive" but not "decisive of the legal obligations which such a retainer as an architect imports". Windeyer J made similar observations (at 601). Florida Hotels is a case in which Gaudron J's observation in Rogers v Whitaker about the utility of common sense is clearly pertinent. 68 Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542 was a case in which the plaintiff was injured during corrective surgery, directed towards straightening and lengthening her spine. The procedure was undertaken at a Sydney hospital under the supervision of an orthopaedic surgeon. The plaintiff called a consulting neurologist who had practised in London, but not in Sydney, who gave evidence for the plaintiff as to the relevant anatomy, normal and morbid, of the significance of the signs which the plaintiff exhibited, and of the risks involved in applying traction in cases where there is a tethering of the spinal cord. The trial judge refused to permit him to give evidence as to what could or ought to be done in cases where the existence of tethering is, in some degree, indicated. The trial judge rejected that evidence on the basis, inter alia, that he was not a Sydney practitioner. The remarks of Reynolds JA (with whom Hope and Hutley JJA agreed), which were footnoted in Rogers v Whitaker (at 487) appear to be directed to the territorial exclusion the trial judge had applied. Thus Reynolds JA said (at 562 - 563): "(64) It also, in my view, is based on a wrong assumption that a jury should be directed that, if what is charged as negligence is shown to have been done in accordance with the usual and customary practice and procedure then prevailing in what was called a particular 'medical community', they cannot find negligence. This, in my opinion, is plainly wrong, because it is not the law that, if all or most of the medical practitioners in Sydney habitually fail to take an available precaution to avoid foreseeable risk of injury to their patients, then none can be found guilty of negligence. … (65) These obvious facts do not render inadmissible an expression of opinion without temporal connotation as to medical facts and practices, because the conduct in issue occurred one, two, three or nine years earlier….Though evidence of local practice is admissible as to whether what was done constituted negligence, local practice provides no basis for the exclusion of evidence by experts lacking local experience as to the correct way in which a particular treatment should be performed, or whether a particular treatment should be given at all." 69 Nothing in Albrighton, in my view, supports the proposition that in that case the jury could have found the defendants negligent absent medical opinion about the procedure in which the plaintiff was injured. 70 In E v Australian Red Cross Society [1991] FCA 20; (1991) 27 FCR 310, the third case to which the High Court referred, the plaintiff contracted AIDS in 1984 as a result of receiving a post-operative blood transfusion from blood plasma collected by the first and second defendants and administered at the hospital for which the third defendant was responsible. The defendants sought to rely on American practice as to the procedures for collecting blood and, it would appear, devising procedures for excluding high risk donors. Wilcox J (at 357) considered whether, in determining the question of breach of duty by a medical practitioner, the practitioner was "entitled to exoneration if it appears that he or she has acted in accordance with ordinary professional practice". After discussing Bolam, Sidaway, Albrighton and F v R, he held (at 360) that "whilst evidence of the practice usually adopted by persons in the position of a defendant will generally be of great assistance, and often decisive, the way must be left open to a plaintiff to persuade the court that the practice does not ensure an adequate standard of care". His observation, in my view, does not advance the jurisprudence on this issue beyond the general statements in Rogers v Whitaker to which I have referred. 71 Mr Neil argued that the Court could conclude the respondent was negligent, notwithstanding the expert opinion accepted by the primary judge to the contrary, first because the appellant's wall was perforated in the operation. As to this it serves to recall that the primary judge accepted that a perforation was rare, and (at [86]) the opinions given by the experts called by both the appellant and the respondent that perforation of the duodenum wall could occur without any negligence on the respondent's part. 72 Mr Neil stressed, however, that the Court could reach an opposite conclusion because the polyp was large and was so understood by the respondent, secondly, because it was a sessile polyp and it was so understood by the respondent and thirdly, because the respondent could not observe the other side of the polyp from that which he was observing. 73 The first two propositions do not advance the issue. There was ample expert evidence that a sessile polyp of 2 centimetres in diameter could be removed endoscopically. As to the third point, the respondent agreed he could not see the back of the polyp as he was removing it. However it was never put to him that not being able to see behind the polyp meant it was not safe to proceed. 74 When it is borne in mind that the respondent removed the polyp piecemeal i.e. did not grasp the entirety of it, especially a side he could not see, this point becomes, in my view, as Mr Menzies of Queens Counsel, who appeared for the respondent on appeal, but not at trial, with Ms K Burke submitted, a red herring. Indeed the fragility of this submission was underlined by Mr Neil's concession that "the problem may well be because the respondent could not see what was on the other side". He simply did not know - the issue had not been explored at trial - despite six experts, including the respondent, being called. There is no basis, in my view, on which the Court could conclude that the respondent acted negligently in removing the polyp piecemeal without being able to see the other side. 75 The procedure the respondent adopted was that advocated by Professor Cotton to obviate risks during removal of sessile polyps, namely to snare the polyp, move it to check that there was no tenting, then proceed with piecemeal removal. To the extent that inference is available, in my view it favours the respondent. The inference I would draw is that whatever risk may flow from not being able to see the other side of the polyp is obviated by the movement test, and then by its piecemeal removal. 76 Mr Neil submitted that Rogers v Whitaker supported the proposition that if all members of a particular profession were doing something that was not in accordance with what the Court considered to be careful practice, then the Court should say so. That submission was pitched at such a high level of generality as to be meaningless. It fails to recognise the careful distinction all members of the High Court drew in Rogers v Whitaker between diagnosis and treatment, and warning of risks. Mr Neil did not suggest any sensible route by which the Court could impose a view as to careful practice contrary to the medical opinions called on both parties' behalves. 77 Mr Neil could not refer the Court to any case since (or before) Rogers v Whitaker in which the court had taken the course he propounded in a case which involved clinical judgment in an operational context. 78 It will be recalled that the primary judge rejected the appellant's argument that the accident bespoke negligence in reliance upon Scott LJ's reasons in Mahon v Osborne [1939] 2 KB 14. His Lordship was of the view that that inference would only be drawn if, inter alia, "in the ordinary experience of mankind such an event does not happen unless the person in control has failed to exercise due care" and queried how a judge could have sufficient knowledge of surgical operations to draw such an inference in a "complicated abdominal operation". His Honour rejected the appellant's case in this respect because of the medical evidence that injury such as occurred could occur in the course of a polypectomy without negligence on the part of the surgeon. Mr Neil did not directly address this passage of his Honour's reasons. For my part I find it compelling in the circumstances of this case. 79 In my view the appellant has not demonstrated any error on the primary judge's part in dealing with the issue of liability. In my view this was a case where the plurality view in Rogers v Whitaker as to the often decisive role professional opinion may play has strong resonance. 80 I would reject the appeal insofar as it concerns liability. 81 I turn to damages, like his Honour, against the possibility this conclusion is incorrect. 82 The appellant's written submissions on damages were diffusely expressed. In short they pointed, as the respondent observed, to evidence favourable to the appellant, asserting, baldly, that the primary judge ought to have accepted it. Save to that extent, the submissions did not identify error on the part of the primary judge in undertaking the necessarily evaluative exercise involved in assessing damages.

Marko v Falk

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Judgment (15 paragraphs)

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Cases Cited (14)