Melchior and Ors v Sydney Adventist Hospital Ltd and Anor

98 A practical problem with the proposed amendment was that the oral evidence was complete at the time the application was made. Had the amendment been allowed, it would have been necessary to recall Dr Newman, possibly the deceased's wife, and certainly the five medical experts who had given their evidence concurrently on the fourth day of the hearing. 99 I considered that it was quite unfair to recall Dr Newman. He had already been recalled twice at the request of the plaintiffs. It was also not without significance that on the last occasion that Dr Newman gave evidence, it was clear that the incident had greatly upset and affected him. It would have been extremely difficult to find a convenient date for the five expert medical witnesses to reconvene.

100 My preliminary view was that the application had been made too late and if there were some substance in the failure to warn aspect of the proposed amendment, what was being asked for was the right to present a different case to that which had been thus far placed before the Court. 101 The defendant opposed the application on three bases. The first was that shortly before the commencement of the hearing (27 October 2008) senior counsel for the plaintiffs had expressly disavowed any reliance upon a failure to warn case. 102 The second basis was that the defendants had prepared their case on particular issues, specific questions relating to those issues had been put to the medical experts and the case had been run on that basis. If the amendment were allowed the defendants would be required, potentially at least, to prepare a new case. The costs and inconvenience of further consulting with the medical experts and then reconvening them so that their evidence could be given would be considerable. The defendants submitted that the plaintiffs' proposed amendment flew in the face of the objects of the Civil Procedure Act 2005 which were directed at proceedings being dealt with cheaply, efficiently and justly. 103 Finally, the defendants submitted that the question of advising as to the advantages and disadvantages of Clexane, or another LMWH, was an obvious matter to be considered by the plaintiffs in preparing their case and no explanation was offered for why that had not been done and why such a significant amendment was being sought after all of the oral evidence had been completed. 104 As indicated, I formed the opinion that the amendment sought did not really raise a failure to warn issue. If I am incorrect in that conclusion, the submissions put on behalf of the defendants have considerable weight and it would be quite unfair for the plaintiffs to be allowed to amend at this late stage in the proceedings, particularly when a failure to warn case had been expressly disavowed shortly before the commencement of the trial.

105 If, on the other hand, the substance of the amendment was a failure on the part of Dr Newman to explain the advantages and disadvantages of Clexane to the deceased to enable the deceased to make an informed decision, the proposed amendment went nowhere and added little to the plaintiffs' case. 106 It is clear from Dr Newman's evidence that he was of the opinion that the appropriate dose of Clexane was one dose for every day that the deceased was in hospital, i.e. one dose. Had he explained the advantages and disadvantages of a single dose to the deceased one or two things would have happened; either the deceased would have agreed to have Clexane administered or he would have refused. If he had agreed and Clexane was not given to him, the position is exactly the same as has been already pleaded against Dr Newman. 107 If (as I suspect from the way in which the argument was put to the Court) the plaintiffs' case on this issue was that Dr Newman should have explained to the deceased the option of Clexane being administered for seven to ten days or more, that again raised the very issue which was already before the Court, i.e. the failure on the part of Dr Newman to properly treat the deceased not only by failing to ensure that he was administered Clexane but by failing to ensure that it was administered for an appropriate length of time. 108 If those matters provide the real basis for the proposed amendment, the amendment did no more than raise matters which were already before the Court and it was unnecessary. 109 For those reasons I refused the plaintiffs' application to amend the Statement of Claim and the matter proceeded on the existing pleadings.

Submissions and consideration Duty of Care 110 The plaintiffs did not address the Court on the duty of care and its content. Their submissions related to breach of duty and causation. The defendants, on the other hand, assumed without analysis that the primary issues before the Court were the content of the duty of care and causation. This difference in approach may, to some extent, explain the difficulties which the plaintiffs had when seeking to articulate their case. 111 The following analysis is directed to the case against Dr Newman. If that case is made out, then certain consequences follow for the case against the hospital. 112 The general nature of the duty owed by Dr Newman is set out 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 …". 113 Applying that passage to the facts of this case the standard of reasonable care and skill required of Dr Newman was that of a surgeon specialising in foot and ankle surgery in Australia in May 2004. 114 As the defendants submitted, implicit in the plaintiffs' case (although never expressed in this way) was the proposition that the duty owed by Dr Newman included an obligation to administer Clexane or other LMWH for an appropriate period following the operation. That was the content which the plaintiffs (had they considered it) sought to give to the general statement of duty in the case which was pleaded. 115 In submissions the plaintiffs' approach was different. They assumed a duty in general terms without seeking to define it in any way. They submitted that the risk of a PE developing was not only foreseeable but was recognised and acknowledged by Dr Newman. The potential consequences of a PE developing could be fatal and consequently the appropriate response in terms of Wyong Shire Council v Shirt (1980) 146 CLR 40 was to prescribe Clexane/LMWH. As a result the focus of the plaintiffs was upon breach not duty. 116 I have concluded that the approach of the defendants is correct. Accordingly, the first question to be determined is whether the duty of care, which Dr Newman undoubtedly owed to the deceased, included an obligation to administer Clexane or other LMWH. 117 As indicated in my summary of the evidence of the medical experts and the medical literature which was available in May 2004, the opinions of the defendants' medical experts on this issue are to be preferred to those called on behalf of the plaintiffs. The opinions of Drs Conrad and Benson were based on their understanding of the medical literature. They had read that literature in order to give evidence in the case. The medical experts called on behalf of the defendants practised on a regular basis in this field. It was apparent from their familiarity with the medical literature that this was not something which they had read in order to give evidence, rather it was material with which they had become familiar as part of the practice of their specialities. 118 Their opinion on this issue was unanimous, i.e. it was not standard practice to administer Clexane/LMWH after Achilles tendon surgery in May 2004. They offered sound reasons for that opinion. Whether the risk under consideration was that of a DVT, VTE or fatal PE, they regarded the deceased as a low risk patient. Statistically the risks of DVT or VTE in patients undergoing this sort of surgery were very low. The risks of using Clexane/LMWH outweighed the advantages and the medical literature was unanimous in recommending that LMWH not routinely be administered for this kind of surgery. 119 The dangers of interpreting the medical literature when one does not regularly practise in the field, were amply demonstrated by the two significant errors made by Dr Conrad, i.e. his misunderstanding of the 2A classification in the 2004 Chest study and his failure to appreciate why studies relating to knee and hip surgery provided limited assistance in understanding the incidence of DVT and VTE in foot and ankle surgery. Doctor Benson freely conceded that he was not in a position to express an opinion on this issue. 120 I have concluded that the duty of care owed by the second defendant to the deceased did not include as part of its content an obligation to administer Clexane/LMWH following the surgery. 121 This, however, does not end the matter. On the specific facts of this case, the question of breach still arises and needs to be resolved.

Breach of Duty and Causation 122 The plaintiffs submitted that Dr Newman as a result of his perusal of the medical literature had concluded that Clexane should be administered either before or after Achilles tendon repair surgery and should be continued for as long as the patient was in hospital. This was so even though it might involve the administration of only one or two injections of Clexane. It was Dr Newman's evidence that Clexane administered in this way was intended to have a prophylactic effect. He followed this practice despite the recommendations in the medical literature. The plaintiffs referred to the similar practice followed by Dr Sullivan. 123 Despite that belief and intention by Dr Newman, no Clexane was administered to the deceased. The reason why that occurred was directly referable to a departure by Dr Newman from proper medical practice. The plaintiffs submitted that the evidence of all the doctors was to the effect that it was insufficient for the second defendant to write "Clexane" on the operation chart without taking steps to ensure that Clexane was in fact administered to the deceased [48]. The plaintiffs submitted that the second defendant's failure to do this involved a breach of the duty which he owed to the deceased. A similar failure arose from his failure to check whether Clexane had been administered to the deceased before the operation, given the amount of time which had elapsed between the deceased's admission and the operation. 124 I agree. Dr Newman appeared to concede as much when he agreed that his failure to give clear directions on the medication chart as to the administration of Clexane to the deceased was an "oversight" on his part. 125 The plaintiffs submitted that this failure to ensure that one or two doses of Clexane were administered to the deceased had made a material contribution to the development of his fatal PE on 27 May 2004. The plaintiffs formulated their causation argument in this way. 126 In relation to the risk of developing DVT or VTE, the most dangerous period for a patient was while he or she was in hospital and immobilised. That was the effect of the evidence of the defendants' medical experts. Accordingly, the most likely time for a clot to have developed in the deceased was while he was in hospital. The risk of that clot developing would have been reduced by the administration of a dose of Clexane while he was in hospital. That did not occur. 127 Once the deceased left hospital, although his foot and ankle remained immobilised, he was using crutches and was more active which significantly reduced the effect of the calf pump not operating in the immobilised foot. The proposition was put in this way:

"We say there is a strong likelihood that as a result of not being administered this dose the DVT developed and took its time over the next 27 days to become a fatal pulmonary embolus. It developed, we say, directly in consequence of the failure to administer Clexane in hospital." (T.186.25) 128 It was common ground that the Civil Liability Act 2002 applied to this claim. Sections 5D and 5E of the Act deal with causation. They read as follows: " 5D General principles (1) A determination that negligence caused particular harm comprises the following elements: (a) that the negligence was a necessary condition of the occurrence of the harm ( factual causation ), and (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused ( scope of liability ). (2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. (3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent: (a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and (b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest. (4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. 5E Onus of proof In determining liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation." 129 Neither side referred to those sections nor were any submissions made in relation to them. Both sides seemed to assume that the principles embodied in s 5D of the Act were in accord with the common law. That was the approach adopted by the Court of Appeal in Ruddock v Taylor [2003] NSWCA 262; (2003) 58 NSWLR 269 at 286 where Ipp JA explained the section and its purpose: "85 As Professor Jane Stapelton has explained in her article "Cause-in-Fact and the Scope of Liability for Consequences" (2003) 119 Law Quarterly Review 388, there are two fundamental questions involved in the determination of causation in tort. 86 The first relates to the factual aspect of causation, namely, the aspect that is concerned with whether the negligent conduct in question played a part in bringing about the harm, the subject of the claim. Professor Stapelton argues (at 389) that this inquiry involves determining whether there was, on the part the defendant, "historical involvement in [the plaintiff] suffering actionable damage". 87 The second aspect concerns "the 'appropriate' scope of liability for the consequences of tortious conduct" (Stapelton, op cit, at 411). In other words, the ultimate question to be answered when addressing the second aspect is a normative one, namely, whether the defendant ought to be held liable to pay damages for that harm. This inquiry may involve normative issues of a general kind, or issues such as whether the so-called evidentiary gap should be bridged (in the sense explained in Bonnington Castings Ltd v Wardlaw [1956] AC 613), whether the defendant materially increased the risk (in the sense explained in Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32), and whether the damage claimed is too remote. … 89 The approach to causation that I have set out forms the basis of s 5D of the Civil Liability Amendment (Personal Responsibility) Act 2002. This Act does not govern the present action but, in my view, the principles it embodies in regard to causation are in accord with the common law."

130 Applying those principles, this submission by the plaintiffs fails to meet the test of factual causation. There is no evidence to support the submission. The proposition was never put in terms to any of the doctors. The submission is based on speculation not inference. In that regard, not only is it not known when the clot formed and when it broke off, but it is not capable of being known. 131 On causation questions the focus is a retrospective one and is concerned with what actually happened. The operation took place on 1 May and the fatal PE occurred on 27 May. The medical evidence is all one way. The medical experts say that one or two doses of Clexane given at the time of the operation would not have prevented the development of the fatal PE 27 days later. This evidence was not accompanied by any qualifications. Accordingly, although there was a breach of duty by Dr Newman in failing to ensure that a dose of Clexane was administered following the operation, that breach did not play a part in bringing about the fatal PE. This submission by the plaintiffs fails. 132 The plaintiffs' alternative submission was that Dr Newman breached the duty of care which he owed to the deceased in that having embarked upon the prescription of Clexane, he should have ensured that it was administered to the deceased for 7-10 days. In oral submissions the argument was put as follows: "But the second limb of our argument is this; looked at from a practical point of view, if you decide you are going to do a dose then it has to be something which is based on rationality and dosage intervals. It is insufficient for Dr Newman to say look I went by the guidelines. I didn't have anything else to go by." (T.190.42) 133 In support of that submission, the plaintiffs relied upon the evidence of Dr McGrath that there was a certain logic in administering Clexane for that period of time [64]. The Court was referred to the distributor's recommendation and the recommendation of 7-10 days of treatment in the 2004 edition of MIMS. The plaintiffs submitted that having decided that there was a prophylactic benefit to be gained from Clexane in relation to the risk of DVT and VTE, it was illogical of Dr Newman not to have ensured that an appropriate dose was administered to the deceased, i.e. 40 mg per day for 7-10 days. 134 In considering this submission and the question of breach of duty generally, it is useful to have regard to two statements of principle by the High Court. "In the way in which litigation proceeds, the conduct of the parties is seen through the prism of hindsight. A foreseeable risk has eventuated, and harm has resulted. The particular risk becomes the focus of attention. But at the time of the allegedly tortious conduct, there may have been no reason to single it out from a number of adverse contingencies, or to attach to it the significance it later assumes. Recent judgments of this Court have drawn attention to the danger of a failure, after the event, to take account of the context, before or at the time of the event, in which a contingency was to be evaluated." ( Rosenberg v Percival [2001] HCA 18, (2001) 205 CLR 434 Gleeson CJ at [16]) "Again, because the inquiry is prospective, it would be wrong to focus exclusively upon the particular way in which the accident that has happened came about. In an action in which a plaintiff claims damages for personal injury it is inevitable that much attention will be directed to investigating how the plaintiff came to be injured. The results of those investigations may be of particular importance in considering questions of contributory negligence. But the apparent precision of investigations into what happened to the particular plaintiff must not be permitted to obscure the nature of the questions that are presented in connection with the inquiry into breach of duty. In particular, the examination of the causes of an accident that has happened cannot be equated with the examination that is to be undertaken when asking whether there was a breach of duty of care which was a cause of the plaintiff's injury. The inquiry into the causes of an accident is wholly retrospective. It seeks to identify what happened and why. The inquiry into breach, although made after the accident, must attempt to answer what response a reasonable person, confronted with a foreseeable risk of injury, would have made to that risk. And one of the possible answers to that inquiry must be "nothing". ( Vairy v Wyong Shire Council [2005] HCA 62, (2005) 223 CLR 422 Hayne J at [124]). 135 Doctor Newman set out his reasons for prescribing one or two doses of Clexane ([28] - [31]). I have already indicated why I accept Dr Newman as a truthful witness. The reasons why I have found that the content of the duty of care did not include an obligation to administer Clexane to the deceased apply equally to this issue. There are additional reasons. 136 Although Dr McGrath said that there was a certain logic in administering Clexane for 7-10 days, it is clear from other evidence that there was an equally compelling logic in restricting the dosage to the time which a patient spent in hospital. This was the time when a patient's immobility was at its greatest and therefore the risk of a clot developing was at its greatest. Doctor McGrath said that such a practice had a prophylactic value and it was the practice followed by Dr Sullivan. It also reduced the risk of the development of one of the well-known side effects of Clexane, such as haemorrhage. 137 Apart from the MIMS publication and the recommendations of the distributor of Clexane, Aventis, the medical literature was all one way. It did not recommend the routine administration of LMWH or Clexane for this kind of surgery. Some particular risk factor had to be identified in a patient. None were identified in the deceased. There is no basis for Dr Conrad's assessment of the deceased as a high-risk patient or of this operation as a high-risk operation. The opinion of the defendants' medical experts was to the contrary as were the conclusions in the medical literature available at the time. The only specific risk identified in the evidence was that of immobility. This was a risk inherent in the operation itself and one would have thought, inherent in any foot or ankle operation. 138 The medical literature did not specify any particular dosage of Clexane or LMWH. The literature set out the advantages and disadvantages of the administration of LMWH and made recommendations. It was generally acknowledged that the medical literature provided little guidance as to the time over which LMWH was to be administered. Because of this lack of clear guidance and the real risks associated with the administration of LMWH, the consensus of the defendants' medical experts was that it was for the treating clinician to decide the period over which LMWH should be administered, having regard to the particular circumstances of the patient. 139 Against that evidentiary background, and keeping in mind that the question of breach of duty is a prospective analysis based on the state of knowledge and the circumstances at the time, it was well open to Dr Newman to adopt the compromise which he did, i.e. to administer LMWH in the case of an Achilles tendon operation only while the patient was in hospital. This was his practice if there were no special risk factors associated with the development of a DVT or VTE. The rationale for such a compromise was obvious. While providing a prophylactic benefit during a patient's period of most immobility, it also reduced the risk of dangerous complications such as haemorrhage. It also avoided the difficulties associated with self-administered Clexane outside the hospital. I am not persuaded that the failure by Dr Newman to administer Clexane or other LMWH for 7-10 days following the operation constituted a failure to comply with the appropriate professional standards. 140 If I am wrong in that conclusion, the evidence clearly establishes the defence in s 5O of the Civil Liability Act 2002. "5O Standard of care for professionals (1) A person practising a profession ( a professional ) does not incur a liability in negligence arising from the provision of a professional service if it is established that the professional acted in a manner that (at the time the service was provided) was widely accepted in Australia by peer professional opinion as competent professional practice. (2) However, peer professional opinion cannot be relied on for the purposes of this section if the court considers that the opinion is irrational. (3) The fact that there are differing peer professional opinions widely accepted in Australia concerning a matter does not prevent any one or more (or all) of those opinions being relied on for the purposes of this section. (4) Peer professional opinion does not have to be universally accepted to be considered widely accepted." 141 In relation to the application of s 5O I respectfully adopt the approach of McClellan CJ at CL in Halverson v Dobler [2006] NSWSC 1307, that the section is intended to operate as a defence. This approach was approved by the Court of Appeal in Dobler v Kenneth Halverson [2007] NSWCA 335 at [59] - 60] where Giles JA said: "59 Section 5O was amongst the tort law reforms consequent on the Review of Law of Negligence Final Report, September 2002 ("the Review "). It was intended to introduce a modified Bolam principle. Its importance does not lie so much in questions of onus of proof as in who determines the standard of care. Commonly, as in the present case, there will be expert evidence called by the plaintiff to the effect that the defendant's conduct fell short of acceptable professional practice and expert evidence called by the defendant that it did not; the expert evidence may or may not recognise that the opposing professional practice is one which has some currency. Apart from s 5O the Court would determine the standard of care, guided by the evidence of acceptable professional practice. It would not be obliged to hold against the plaintiff if the defendant's conduct accorded with professional practice regarded as acceptable by some although not by others. Section 5O has the effect that, if the defendant's conduct accorded with professional practice regarded as acceptable by some (more fully, if he "acted in a manner that … was widely accepted … by peer professional opinion as competent professional practice"), then subject to rationality that professional practice sets the standard of care.

60 In this sense, s 5O provides a defence. The plaintiff will usually call his expert evidence to the effect that the defendant's conduct fell short of acceptable professional practice, and will invite the court to determine the standard of care in accordance with that evidence. He will not be concerned to identify and negate a different professional practice favourable to the defendant, and s 5O does not require that he do so. The defendant has the interest in calling expert evidence to establish that he acted according to professional practice widely accepted by peer professional opinion, which if accepted will (subject to rationality) mean that he escapes liability." 142 In accordance with that interpretation of s 5O and applying the "modified Bolam principle" the defendants have established that Dr Newman acted in a manner which as of May 2004 was widely accepted in Australia by orthopaedic surgeons practising in the field of foot and ankle surgery as competent, professional practice. 143 As set out earlier in this judgment, the defendants' medical experts agreed that in May 2004 the majority of orthopaedic surgeons who specialised in foot and ankle surgery were not administering Clexane as a prophylactic in Achilles tendon repair surgery. The evidence of Dr Sullivan in this regard is particularly compelling given his area of expertise (T.107.23). The basis for that practice was wholly rational as the evidence of the defendants' medical experts explains and as is set out in the medical literature to which reference has been made. Doctor Benson did not express an opinion on this issue. The only dissent was in the evidence of Dr Conrad. For the reasons previously indicated, I am not satisfied that Dr Conrad had the necessary experience and expertise to express that opinion but in any event I do not accept it. I prefer the opinions of Drs Sullivan, McGrath and Professor Fletcher. 144 Doctor Newman did not administer Clexane to the deceased. I am satisfied that that approach was widely accepted in Australia by peer professional opinion as competent professional practice. To the extent that it was necessary for Dr Newman to establish the "defence" provided by s 5O, he has done so. 145 It follows that I am not satisfied that the plaintiffs have established breach of duty of care on this issue, i.e. the failure to administer Clexane for 7-10 days. 146 Had the plaintiffs been successful in establishing breach of duty on that issue, I am not satisfied that they have established causation. 147 The plaintiffs rely upon the statement of causation principle in Chappel v Hart [1998] HCA 55; (1998) 195 CLR 232 at [27] where McHugh J said: "Before the defendant will be held responsible for the plaintiff's injury, the plaintiff must prove that the defendant's conduct materially contributed to the plaintiff suffering that injury. In the absence of a statute or undertaking to the contrary, therefore, it would seem logical to hold a person causally liable for a wrongful act or omission only when it increases the risk of injury to another person. If a wrongful act or omission results in an increased risk of injury to the plaintiff and that risk eventuates, the defendant's conduct has materially contributed to the injury that the plaintiff suffers whether or not other factors also contributed to that injury occurring." 148 The plaintiffs' submission based on that statement of principle is as follows. Doctor Newman's failure to administer Clexane to the deceased increased the risk of the deceased developing DVT, VTE or PE. A fatal PE developed. This was the very eventuality which the administration of Clexane was designed to avoid. The particular risk which had been increased by Dr Newman's conduct had therefore eventuated and consequently causation was established. 149 In order to evaluate that submission, it is necessary to refer to the evidence on which it is based. The plaintiffs in their submissions have assumed that the operation caused the fatal PE. That is not the effect of the evidence. What Dr McGrath said was: "No, clearly there is a relationship between the trauma and surgery and the pulmonary embolism. " (T.153.1)

That evidence has to be read with that at [75]. The effect of that evidence is that while there is an undoubted association between either or both the trauma and operation on the one hand and the fatal PE on the other, the mechanism by which that occurred is not known. The neutral word "relationship" used by Dr McGrath is clearly something less than the terminology of causation. The part played by the operation and/or trauma in the ultimate development of the fatal PE by comparison with the other factors to which reference is made is unknown and unquantified. 150 It is also necessary to identify the increased risk of injury upon which reliance is placed. It cannot be the risk of a DVT or VTE developing. That risk already existed as a result of the injury. There is nothing in the evidence to suggest that the operation itself, as distinct from the initial injury, increased the risk of a DVT or VTE developing. The increased risk, therefore, upon which the plaintiffs rely can only be any additional risk of developing DVT or VTE which arose as a result of not administering Clexane. 151 The evidence does not establish that the failure to administer Clexane for 7-10 days increased the risk of a fatal PE developing. It is the development of a fatal PE which is the condition which eventuated, not a DVT or VTE. 152 Some assistance in the application of the Chappel v Hart causation principle is provided by Seltsam Pty Limited v McGuiness and Another [2000] NSWCA 29; (2000) 49 NSWLR 262 at 279 where Spigelman CJ said: "107 The starting point of McHugh J's analysis was that it had been established on the balance of probabilities that the conduct did create or increase the risk of injury, "and that risk had eventuated". 108 This starting point is the very matter in issue in the present case. Was there evidence on the basis of which the trial judge could conclude, on the balance of probabilities, that there was an increased risk of injury and that that risk had "eventuated" in the specific disease of the respondent? 109 If there was such evidence then, to use the words of both Gaudron J and Callinan J the tribunal of fact was entitled" to find that the conduct which increased risk, materially contributed to the injury - entitled, but not, of course, required to so find. "

153 This was the very point made by Dr Sullivan. He pointed out that whereas the findings in the medical literature as to the effectiveness of LMWH in reducing the incidence of DVT and PE were equivocal at best when applied to foot and ankle surgery, there was no evidence that LMWH had any beneficial effect in relation to the prevention of fatal PE. An analysis of the medical literature tendered in this case indicates that the evidence of Dr Sullivan on this issue is correct. 154 For the causation principle enunciated by McHugh J in Chappel v Hart to apply to this case, the plaintiffs had to establish that the failure to administer Clexane for 7-10 days post-operatively created or increased the risk that the deceased would die as a result of a fatal PE. There is nothing in the medical literature or in the oral evidence in the case to establish that proposition. The only oral evidence specifically on the issue is that of Dr Sullivan and it is against the proposition. 155 The causation question can be approached in another way. On the question of factual causation, the highest at which the evidence can be put is that Drs Conrad, Benson and McGrath thought that the administration of Clexane for 7-10 days might possibly have prevented the development of a fatal PE. The evidence of Dr Sullivan and Professor Fletcher was that it was very unlikely that it would have done so. Leaving aside the opinions of Dr Sullivan and Professor Fletcher, evidence as to possibility does not establish factual causation nor does it provide any basis whereby the Court could assess the degree of contribution or the degree of increased risk to which the deceased was exposed. Mere possibility is not sufficient to establish factual causation. 156 As Spigelman CJ said in Desmond v Cullen [2001] NSWCA 238; (2001) 34 MVR 186 at [13] (a case concerned with whether an intoxicated pedestrian had contributed to his injuries): "I also agree with Grove J that the appellant fails on the issue of causation. The evidence relating to the connection between the plaintiff's state of inebriation and the injury he suffered, never rose above the level of a mere possibility. The fact that he was walking home in a state of intoxication was not shown to have made a material contribution to the injury he suffered. The appellant had to show a material contribution at the level of probability not possibility. (See the authorities collected in Seltsam Pty Limited v McGuiness (2000) 49 NSWLR 262 at [80] to [83])." 157 I have concluded that on this issue, factual causation has not been established. That being so, I do not see any basis for approaching the matter from the point of view of assessing the "appropriate scope of liability for the consequences of tortious conduct", i.e. the normative question of whether the defendant ought to be held liable to pay damages for that harm. No submissions were put to that effect and this is not the sort of exceptional case where those considerations would operate. 158 As a fallback position, the plaintiffs submitted that if the Court were not satisfied on the balance of probabilities that causation had been established, the Court would be satisfied that the failure to administer Clexane for 7-10 days had deprived the deceased of the chance of a better outcome and that some percentage should be assessed to give a value for that loss of a chance. 159 The difficulty with that submission is that no evidence was led from the medical experts on the question. The plaintiffs cannot demonstrate on the evidence that a real and quantifiable chance existed. As Hodgson JA said in Rufo v Hosking [2004] NSWCA 391; (2004) 61 NSWLR 678 at [10] any such chance must be "inherent in the circumstances, not merely an artefact of the … evidence". 160 On the evidence I am not satisfied that a loss of a chance has been established. If it had been a further difficulty would arise in that the medical evidence does not provide any rational basis for assessing that loss of a chance. Such an assessment would involve speculation rather than inference or calculation. 161 For completeness, I should say something about the case which the plaintiffs sought to raise in the proposed amendment to the Statement of Claim. The essence of the amendment was a failure to explain the advantages and disadvantages of the administration of Clexane following the operation so as to allow the deceased to make a decision as to whether the drug should be administered to him. 162 Doctor Newman could not remember whether he had said anything to the deceased on this subject [T39.46]. If he had discussed the matter with the deceased, what he would have explained to the deceased was the advantages and disadvantages of the administration of one or two doses of Clexane. Had Dr Newman provided such an explanation, and had he recommended the administration of one or two doses of Clexane and had the deceased accepted that advice, the plaintiffs' claim would still fail because of the failure to establish causation previously discussed. 163 If the thrust of the proposed amendment was not to that effect but was directed at establishing that Dr Newman should have explained in detail to the deceased not only his own belief as to the efficacy of Clexane but to have explained to him other options, such as its administration for 7-10 days post-operatively, the plaintiffs' claim would still have failed. There is no evidence from which the Court could infer, had such an explanation been given, that the deceased would have chosen to undergo such treatment particularly once the dangers of haemorrhage were explained to him. Even if he had, the same problems with causation arise. 164 There is, however, another difficulty with the proposed amendment. Rogers v Whitaker and Rosenberg v Percival recognise that whether a medical practitioner is in breach of the requisite standard of care will vary according to whether it is a case involving diagnosis and treatment on the one hand or the provision of information or advice on the other. Those cases recognise the fundamental difference between the two concepts. In diagnosis and treatment the patient's contribution is limited to the narration of symptoms and relevant history. Based on that information the medical practitioner provides diagnosis and treatment according to his or her level of skill. The provision of information relates to the patient's choice to undergo the medical treatment. For the patient's consent to the treatment to be valid, he or she should be informed in broad terms of the nature of the procedure which is intended. 165 On the facts of this case, the standard of care required of Dr Newman would have been satisfied if he had, in broad terms, explained to the deceased the advantages and disadvantages of the administration of Clexane on the basis of one or two doses post-operatively while the deceased was in hospital. There was no obligation on him to discuss the contents of the medical literature and explain the advantages and disadvantages of 7-10 days of the administration of Clexane post operatively. 166 Given the nature of the medical literature and its complexity, and the problems associated with the administration of Clexane, such an explanation would have been confusing and of little benefit. It would have involved the deceased in the treatment process and an abrogation of responsibility by Dr Newman. It is up to the surgeon to decide upon the treatment with a concomitant obligation to explain the advantages and disadvantages of the recommended treatment. It is not the province of the patient to decide on the treatment when this involves an understanding and examination of complex medical opinion. 167 It follows that even if the Statement of Claim had been amended as sought by the plaintiffs, their claims would still have failed.

Conclusion 168 For the reasons indicated, the plaintiffs' claim against Dr Newman fails. Since the case against the hospital depended upon liability being found against Dr Newman, the case against the hospital must also fail. 169 The orders which I make are as follows:

(i) There will be judgment in favour of the defendants. (ii) The plaintiffs are to pay the defendants' costs of these proceedings. **********

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