Olbourne v Wolf

LOWER COURT District Court JURISDICTION : LOWER COURT DC 6782/01 FILE NUMBER(S) : LOWER COURT Herron ADCJ JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40549/03 DC 6782/01

SANTOW JA YOUNG CJ in EQ STEIN AJA

6 MAY 2004 NORMAN OLBOURNE v FREYA WOLF Judgment 1 SANTOW JA: I agree with Young CJ in Eq. 2 YOUNG CJ in EQ: This is an appeal from his Honour Acting Judge Herron of the District Court in a medical negligence case. 3 The appellant in this Court, the defendant in the court below, is a plastic surgeon. The respondent, the plaintiff in the court below, arranged for the appellant to conduct a breast reconstruction operation on her. 4 The appellant performed this operation at the North Shore Private Hospital on Friday 31 March 2000. 5 On Sunday evening, 2 April 2000, the appellant examined the respondent in that hospital and made arrangements to discharge her on the following day. He told her that he would like to see her in his rooms on 6 April. 6 During the night of 2/3 April, the respondent said that she felt very hot and feverish, and at 3.20 am, Dr Jane Barry, then a resident medical officer at the hospital, was called by the nursing staff to attend to the respondent. The respondent's temperature is recorded in the hospital notes as having risen to 38.5 degrees centigrade. Dr Barry could not find any infection upon a relatively superficial examination of the respondent's breasts. She observed that the temperature was indicative of something that was not normal, and gave instructions that the appellant was to be informed this morning. Her note was "Please inform Dr Olbourne this am". 7 At 8.40 am on Monday 3 April 2000, registered nurse Amanda Moody telephoned Dr Olbourne. Nurse Moody could not remember the conversation in detail, but the respondent remembered asking her what were the clinical state of the patient's breasts and being informed that they were normal and were not a cause for concern. The appellant took the position that the respondent could be discharged from hospital as planned. He told the court "Spikes of temperature can occur in patients, particularly if they have had liposuction, when she indicated to me that the temperature had come down and that the breasts were normal" and he confirmed his decision to discharge. Indeed, as at that time, the respondent's temperature had come down to 37.5 which, whilst a little higher than normal, was not an unexpected state for a patient in the respondent's position. 8 The respondent was discharged from hospital somewhere between 10 and 11 am on Monday 3 April. She was given a prescription for prophylactic antibiotics. On discharge, the respondent made no complaint to the hospital staff, though she said she felt feverish and sick. 9 On Tuesday 4 April 2000 at 11 am, the respondent attended the appellant's Chatswood rooms and was examined by his nurse, Ms Liz Brand. Ms Brand found nothing untoward observable, though the respondent's evidence was that at the time her wounds were oozing and there was a putrid smell present and she was vomiting. 10 On Wednesday 5 April, the respondent again attended the appellant's Chatswood rooms and was again examined by Ms Brand. This time Ms Brand observed matters of concern and contacted the appellant. The appellant advised that the respondent should come and see him at the Wolper Hospital where he was operating that day. He asked that the respondent meet him at Wolper Hospital at 1.30 pm. There was some confusion and the respondent did not see the appellant until later that afternoon. She underwent a further operation. The appellant gave evidence that when his nurse had diagnosed a haematoma, he felt it important to explore the wound. He did explore the wound; he did not find a haematoma; he did not recognise the pathological processes which were in fact going on; he found "the tissue looked all sort of grey and sloughy looking and swollen". He didn't expect to find that. By "sloughy" the Judge considered the doctor was referring to dead tissue. 11 There was some dispute in the evidence as to whether abscesses were found on 5 April. To the appellant, an abscess was a collection full of pus. The Judge found that there must have been abscesses or an abscess on the wound and relied on the note made by the appellant himself immediately after the operation had been concluded. The Judge also did not accept the doctor's evidence as to what he considered was the definition of abscess. 12 Dr Georgina E Hale, an infectious diseases specialist gave evidence. She said of the second admission to the Wolper Hospital (Blue 325): "Mrs Wolf was admitted at 16.50 hours on 5 April. She had a temperature of 38.2. Her admission medications included Keflex, Digesic, Panadol and Thyroxine … . In Dr Olbourne's outpatient notes, he wrote, 'vertical wound opened. Fat looked a little doughy - but no haematoma, abscess or seroma'. The operating record notes however read, 'Post-op breast infection. Smouldering infection. Drainage of abscess bilaterally … packed. Swabs sent for micro'. Intravenous flucloxacillin and gentamicin were commenced. Microbiological processing of the swabs revealed moderate leukocytes, no organisms on gram stain and a moderate mixed growth of enterococcus and coliforms on culture." 13 By the time that Dr Hale opened the wound, it was already too late. The trial judge held that by Tuesday 4 April the infection that the respondent had suffered was irreversible. He found that, had the appellant taken action on Monday 3 April to delay the respondent's discharge from hospital and to combat the infection, the probabilities would have been that the infection would have been arrested and the results which ensued avoided. 14 His Honour also found that the respondent's evidence that, had she been informed that the outcome of the operation would leave her in the state in which she presently was, she would definitely not have undertaken the operation. He held that the appellant was negligent in not giving the respondent full and proper warning. 15 The trial judge awarded the plaintiff damages of $292,536.78 which included $200,000 general damages. 16 The trial before Judge Herron involved not only a claim by the respondent against the appellant, but also a claim by her against the North Shore Private Hospital. The learned Judge dismissed this claim with costs. The hospital and the appellant had each counterclaimed against each other for indemnity or contribution. The two cross claims were dismissed with the parties to pay their own costs. There are no appeals on any of these ancillary matters. 17 The appellant, in his notice of appeal, says that the Judge was wrong to find him negligent either in failing to give an adequate warning to the respondent as to the risks of the operation, or in discharging her from hospital on 3 April and that, in any event, the damages awarded did not flow from any such act of negligence. He also says that the damages awarded by the learned trial judge were excessive, and the Judge also erred in making a Bullock order so that the appellant had to bear the costs which the respondent had to pay the hospital. 18 The appeal was heard on 11 March 2004, Mr D Davies SC and Mr G Curtin appearing for the appellant and Mr R Burbidge QC and Mr B Hull appearing for the respondent. The issues arising on the appeal should be dealt with under the following heads:

1. Was the appellant negligent in and about giving the respondent the warning as to the risks of the operation?

2. Was the appellant negligent in authorising the respondent's discharge from hospital on 3 April 2000?

4. Were the damages awarded by the trial judge excessive?

5. Did the trial judge err in making a Bullock order?

6. The result of the appeal. 19 Question 1. One commences any consideration of this matter by what five Justices of the High Court said in Rogers v Whitaker (1992) 175 CLR 479, 490: "The law should recognise that a doctor has a duty to warn a patient of a material risk inherent in the proposed treatment; a risk is material if, in the circumstances of the particular case, a reasonable person in the patient's position, if warned of the risk, would be likely to attach significance to it or if the medical practitioner is or should reasonably be aware that the particular patient, if warned of the risk, would be likely to attach significance to it."

See also Chappel v Hart (1998) 195 CLR 232 at 254. 20 The facts as found by the learned Judge on this issue were that the respondent and the appellant had known one another for many years and they attended the same synagogue and their children were at school together. The respondent was concerned with the size of her breasts. She considered they were disproportionate to the rest of her body and that she was uncomfortable. In 1997, she had consulted Dr Rosemary Swift, a senior plastic surgeon. Dr Swift advised a procedure which was different to that carried out by Dr Olbourne. The respondent did not have the operation Dr Swift advised because of her financial situation at the time. 21 In 2000, the respondent was changing jobs. Her financial position had improved and she thought that she would have the operation in the break between the two jobs. Dr Swift was overseas at the time and so the respondent consulted Dr Olbourne. 22 A consultation between the respondent and Dr Olbourne took place at the Wolper Hospital on 22 March 2000. At that consultation, the trial judge held a great deal of information was given to the respondent concerning the surgery and its aftermath. The consultation took at least half an hour and Dr Olbourne supplied a booklet which he himself had prepared. The booklet was discussed and the doctor explained to the respondent the method he used for the operation. 23 The booklet was called "Breast Reduction". The booklet is contained in Blue Appeal Book pp 98-117. The booklet contains a lot of details particularly pointing out that the prospect of scarring was something that could not be controlled by the surgeon. 24 The problem in the instant case, of course, is not scarring but infection. As to this the booklet said at Blue 107: "Infection can occur after any surgical procedure and does not indicate a breakdown in surgical or operating room technique. Should it occur, bacterialogical identification of the infecting organism and appropriate antibiotic therapy should control the problem." 25 Under the heading "Wound Breakdown" a subheading of understanding the risks and complications, it is mentioned that the wound may sometimes break down, but reoperation is rarely required. However, there was no express mention of infection to the wound. 26 The respondent said that she did not see the appellant again until the day of the operation and that the contents of the booklet which she took away with her were not further discussed. 27 The Judge noted that the respondent was asked questions concerning her awareness of some risk of infection following after the procedure. She answered that she realised there was a risk but it was highly unlikely. 28 Mr Curtin of counsel for the appellant at the trial, put this to the respondent in cross examination (Black 80): "Q. So in other words, because of your friends and relatives who had a successful operation, because of your concerns about breast cancer, concerns about your weight, all those other things, you were aware that certain complications might occur, but because of confidence in Dr Olbourne or whatever, you were not concerned with how likely or unlikely it might be these complications in this booklet might come to pass? A. Highly unlikely. Q. You might have thought that, but no doctor told you how likely or unlikely any of these things were? A. Correct." 29 When Mr Curtin took his own client, the appellant, in examination in chief, he asked about explanation of possible infection. The appellant (Black 298-299) said: "I explained to her that in my understanding about 2 or 3 percent of patients who have surgical procedures have infections despite the best precaution, and I explained the implications of an infection to her. Q. Can you tell his Honour, please, what did you - his Honour is interested in what you did say, not a conclusion, as it were. A. If she developed an infection, then there would be wound breakdown, that the infection would have to be drained. The wound would have to be packed regularly on a daily or more than daily basis. That ultimately healing would occur, but the result would be compromised, and to retrieve the situation, further surgery almost certainly would be required." 30 Mr Burbidge submitted to us with respect to this passage that we should note that the warning not only didn't say that the infection was irretrievable, but by saying that to retrieve the situation further surgery would certainly be required he gave the indication that there was no possibility of an irretrievable breakdown. 31 The Judge held that the word "breakdown" was mentioned at the consultation, but there was no definition given to it and its implications were not explained so as to give the plaintiff a clear understanding of the matter. He accepted that the respondent was not aware that a wound breakdown could result in the failure which in fact ensued. 32 The Judge said he accepted the plaintiff's evidence "that had she been informed that the outcome of the operation could leave her in a state in which she presently is, she would 'definitely' not have undertaken the operation" (Red 51). Mr Davies SC pointed out that his Honour had mis-stated the evidence in that what the respondent said at page Black 47 was that if she had been informed that the operation would leave her in the state she was presently in rather than it could. 33 His Honour noted that it was elective surgery so that it was surgery that the respondent might more easily reject than she could in the case of mandatory surgery and accepted her evidence that had the appropriate warning being given, she would definitely not have undertaken the operation. 34 Mr Davies reminded us of the oft repeated warning to courts to be very careful before accepting evidence given as a result of hindsight that, had the warning been given, the patient would not have undergone the operation. Thus in McKellar v Blake NSWCA, 30.10.1998, unreported, Sheppard AJA with whom Meagher and Handley JJA agreed said: "Undoubtedly it must be very difficult for plaintiffs in cases of this kind to place themselves in the position in which they were prior to a medical procedure being carried out. If the procedure has gone wrong, it is only natural that they will tend to answer questions such as were put to the respondent here both in her evidence in chief and in cross examination in the emphatic way in which the respondent here answered them. The problem is to keep hindsight out of the answer. That is because of the events which have transpired have left the plaintiff with a permanent disability. Courts, accordingly, need to be cautious about accepting at face value statements such as were made by the respondent here … ." 35 In Rosenberg v Percival (2001) 205 CLR 434, Gleeson CJ said at 441: "The more remote a contingency which a doctor is required to bring to the notice of a patient, the more difficult it may be for the patient to convince a court that the existence of the contingency would have caused the patient to decide against surgery." 36 Mr Davies submits that there has to be a limit to the amount of informing that can be reasonably required to be applied. In the present case, the booklet was extensive and couched in fairly understandable language. Furthermore, for some three years prior to this operation the respondent had already consulted Dr Swift and been given information. 37 At this stage I need to digress and deal with what is, I believe, accepted by both parties as what in hindsight must have happened to the respondent. I will put this in layman's language. 38 There are two types of bacterialogical infections that can enter a wound which can be called gram positive and gram negative. Two distinct types of antibiotics are required to counter these bacteria. An antibiotic which works on gram positive will not work on gram negative and vice versa. Keflex, which was given to the respondent on her discharge, is a standard prescription which is effective against gram positive bacteria. It has no effect on gram negative bacteria, and indeed, its use may obscure the presence of such bacteria. 39 Gram positive bacteria are usually associated with wounds to the chest with staphylococcal and streptococcal infections. Gram negative bacteria tends to emanate from the bowel area and it is unusual to find them in chest infections. 40 The cause of the respondent's disability was that no-one recognised that her infection was gram negative until it was too late. I now return to the narrative. 41 Dr Hale concluded that the organisms involved in Mrs Wolf's case, although unusual, were perhaps not unexpected. 42 Dr Paul O'Keefe said (Blue 266): "The commonest postoperative wound infection is due to Staphylococcus aureus and these infections tend to be more localised in the breast because the organism is coagulase +ve and produces a thick pus. The coliform organism is likely to spread to much wider areas of the breast because it is not coagulase +ve. It is an unusual organism to find in post operative wound infections and it may be less toxic therefore the signs and symptoms of infection may be less obvious than with a more virulent organism. This would explain the delay in reaching the diagnosis of wound infection." 43 Dr Swift gave evidence (Black 258) that she explained to Mrs Wolf that there was a problem with infection very carefully. Although Dr Swift's procedure was different to that used by Dr Olbourne, the risks were the same. His Honour said at Red 36 that he considered it somewhat doubtful whether Dr Swift informed the plaintiff of the awful results which could occur in the event of a wound breakdown. Why his Honour took that view he does not explain. However, he then goes on to say: "I do not think that the defendant doctor can call into aid, as it were, the information given to the plaintiff by Dr Swift in 1997."

I might ask, why not? 44 What is required is that the patient have the sufficient material in order to make an informed consent. It really does not matter where that information comes from. Moreover, provided that particular account is taken of the risks raised by the patient, the more remote the risk, the more difficult it is for a plaintiff to convince a court that she would not have had the operation had the risk of what actually happened been more fully explained to her. With great respect to his Honour, I do not see how, with the extensive booklet that was issued, the information given by Dr Swift, the consultation between Dr Olbourne and the respondent, and the remote (though entirely unexpected) risk involved that one can come to the conclusion that the appellant was negligent in the explanation that he gave. 45 This is not a case where I am differing from the trial judge on his finding of primary facts. It seems to me that the primary facts are fairly clear, though I can see no reason for the Judge not fully accepting Dr Swift. Putting the primary facts together, however, seems to me to fall short of making out a case of negligence against the appellant on the head of "failure to warn". 46 Question 2. The respondent's case that she was discharged from the hospital too soon and that that was negligence in the appellant in my view is much stronger. The background facts are as I have set them out, that is, at 3.20 am on the Monday morning the respondent was found to have a temperature of 38.5 and this caused concern of the nursing staff and the resident medical officer was called in. Although she did not find any infection, her examination was only superficial, but she did request, a request which was carried out, that Dr Olbourne be informed in the morning, meaning, no doubt, after the sun came up. Dr Barry, the resident medical officer went off duty about 7 am but the nurse duly communicated with the doctor. 47 It is true that the respondent's temperature had gone down by about one degree by this time, but the fact that the resident medical officer had thought there was some concern, one would have thought, would raise in Dr Olbourne the necessity of at least coming to the hospital to see the respondent before she was discharged. 48 There does not appear to have been any physical barrier to Dr Olbourne doing this. His rooms were at Chatswood and the hospital was at St Leonards, about five kilometres away. Doubtless he was busy with other patients, but that is never any excuse for failing to care for each and every patient. 49 I bear in mind that Dr O'Keefe said that he has no inflexible rule about keeping patients in hospital if their temperature is higher than normal after a breast reduction operation, but that type of evidence really does not go far enough. 50 The medical evidence all seemed to suggest that problems with wound infection need to be dealt with without delay. In not seeing the respondent before she was discharged and allowing her discharge, the appellant took the risk that there was nothing that would go wrong, even though he had some signs to the contrary. Of course, he did not have clear signs because the temperature had gone down, but he did not take the opportunity of checking to make sure. 51 The Judge said that the appellant did not make an adequate response by delaying the respondent's discharge and having treatment administered in the way indicated, for example, by Dr Hale. Mr Davies complains that this is against the evidence of the only two experts in the field, Drs Hale and O'Keefe. 52 Dr O'Keefe said that in 33 years he had never seen an infection due to coliform organisms in any of his patients. Had the respondent been his patient he would have prescribed Keflex as Dr Olbourne did and, in view of the fact that patients remaining in hospital are more likely to become infected with organisms that are difficult to treat than people who are at home, he saw nothing wrong in Dr Olbourne authorising the discharge despite the symptoms. 53 Dr Hale said in oral evidence in cross examination (Black 182): "I guess I would have said that it was appropriate to see her before she left hospital. I'm not sure that it's inappropriate not to have seen her providing you have very close follow up and you have an appointment to come back and see me because if there was any recognition that there might be an infection there, then it was even more important to follow her."

Mr Davies reminded us that there was a follow up appointment for the following Thursday. 54 Although this mixed material does perhaps more properly fit in section 3 of these reasons, what concerned me for quite a time was the argument that it took at least two days to analyse in a pathology laboratory a swab that was taken from a patient and that until that analysis was available, there was no way of knowing that the patient's infection was gram negative. It follows from this that if there had been a call by Dr Olbourne on the Monday morning and he had taken a swab and had it analysed by a pathology laboratory, then it would not have been until Wednesday that he could have known that the bacteria was gram negative, which would have been too late as all the evidence suggests that the respondent's condition was irreversible by Tuesday. 55 When Mr Burbidge took us through the evidence more closely, that theory fell away. It would seem that there is a two stage process of analysis by the pathology laboratories. The second stage does take two days because it involves the specimen taken from the patent being grown to form a culture and then analysed. However, there is an earlier stage known as gram stain which can be reported much earlier. Dr Olbourne took a swab in the late afternoon of 5 April, the Wednesday after the operation. The next day, Thursday the 6th, he was rung either by a laboratory technician or more probably by Dr Juliette Holland, the microbiologist at the pathology laboratory, that the pathologist had done a gram stain and found an indication that the bacteria was gram negative. He then had a discussion with Dr Holland as to the best thing to do while awaiting the final report and she advised that the antibiotic regime be changed to Augmentin. This is confirmed by the formal pathology report which issued on Friday 7 April after the culture had grown where the final note on the report is: "As discussed Augmentin would be a reasonable drug to 'cover' the likely pathogens." 56 Accordingly, far from being two days before he could get the results from the pathology test, the appellant could get indicative results fairly soon and certainly the next day if there are sufficient pathogens there. 57 Accordingly, had Dr Olbourne taken the swab on the Monday morning before Mrs Wolf was discharged from hospital, the situation may well have been that the infection would have been properly diagnosed by Monday night or even early Tuesday before it became irreversible. 58 Dr Swift said at Blue 243 that the patient: " … was sent home after developing a temperature of 38.5 degrees centigrade with a prescription for oral antibiotics. Good practice is that she should have been kept in hospital in view of developing such an elevated temperature and given intravenous antibiotics, and been observed until the temperature subsided. The wound should have been checked thoroughly, to make sure there was no problem here." 59 The learned Judge had to decide the question of fact as to whether a reasonable person in Dr Olbourne's situation would not have discharged the respondent from hospital in view of what had occurred during the night before, or at least would not have discharged her without seeing her first. 60 The learned Judge had conflicting medical evidence on this as to the practice of Dr O'Keefe on the one hand, and Dr Swift on the other. Dr Hale said that she would at least have seen the patient. The learned Judge held that, on the facts, he was satisfied that Dr Olbourne had breached his duty of care in this instance by the discharge and, in my view, there was sufficient material to justify his finding. Accordingly, question 2 must be answered "Yes". 61 Question 3. As I have answered question 1 "No", this question only concerns the damages that flow from question 2 being answered in the affirmative. 62 I have already dealt with some of the material that appertains to this head by noting that it was not the case that one had to wait two days before getting a fair indication of the sort of bacteria with which one was dealing. 63 His Honour said at Red 76-7: "So far as my finding that Dr Olbourne was negligent 'in taking a risk' and not delaying the plaintiff's discharge from the hospital, Mr Curtin submitted to me that damages here would have to be assessed on the basis of the plaintiff having lost but a chance of the infection problem being overcome."

He referred to Rufo v Hosking [2002] NSWSC 1041, especially at paras [245] and following. However, his Honour went on to say at Red 78: "I think, however, here again relying heavily upon the evidence of Drs Swift and Hale, had the doctor taken action on 3 April to delay the plaintiff's discharge from hospital and to combat the infection, the probabilities are that the infection would have been arrested and the disastrous results which ensued in fact would have been avoided." 64 Mr Davies says that it is hard to see how this can be so with a gram negative infection, but it seems to me that the finding was within his Honour's mandate of determining questions of fact. 65 Accordingly I would uphold his Honour's findings that the whole of the damages which he awarded would flow equally from the affirmative answer to question 2, notwithstanding that I have found question 1 in the appellant's favour. 66 Question 4. The appellant says that there are two areas of criticism in relation to quantum. The first relating to general damages and the second to future loss of earning capacity. 67 The Judge accepted most of what the respondent said as to her continuing disabilities and considered she did not exaggerate her difficulties. Even the appellant's counsel acknowledges that there can be no doubt that the respondent has suffered psychologically from the operation. However, she has been able to work in a full time occupation since a very short time after the surgery, and in connection with her job as a travel agent, has travelled extensively overseas. She has also travelled for pleasure. 68 Mr Burbidge, needless to say, put up a series of facts found in the judgment which highlighted the problems suffered by the respondent. 69 In my view, whilst the award of general damages might have been slightly on the generous side, it was not so out of the range as to warrant this Court interfering with it. 70 The issue of loss of earning capacity caused the trial judge a great deal of concern, and as Mr Burbidge says, he analysed the evidence with some care. 71 Again it seems to me that what his Honour did was well within his mandate. 72 Question 5. As the appellant has pointed out, the principles associated with the making of a Bullock order are set out in Gould v Vaggelas (1985) 157 CLR 215, 229-230; see also Steppke v National Capital Development Commission (1978) 21 ACTR 23, 30-31. Essentially, if the conduct of the unsuccessful defendant has been such as to make it fair to impose some liability on him for the costs of the successful defendant, then a Bullock order should be made. However, otherwise there is no reason why an unsuccessful defendant should be required to pay for the plaintiff's error or over-caution. 73 His Honour considered the Bullock order in his supplemental judgment given on 23 May 2003. He referred to Gould v Vaggelas at Red 107-108 and also to a series of other authorities and then said that the doctor at a fairly last stage was saying that the cause of the plaintiff's problems was that she had been bathed in hospital by her daughters and the gram negative bacteria which is normally associated with the discharge of human waste may well have been introduced into the wound by bathing. 74 This matter having been raised by Dr Olbourne, it was prudent for the respondent to have sued the hospital as well. His Honour thus made a Bullock order. 75 Although Mr Davies says that his Honour has virtually ignored Gould v Vaggelas despite his citation of it, I consider, with respect, that this is not fair to his Honour. The appellant suggested another possible cause and it would be imprudent for the respondent to have proceeded without suing the hospital in case what the doctor was saying was actually correct. 76 Accordingly, in my view the Bullock order was properly made. 77 Question 6. The result of the appeal then is that it must be dismissed with costs. 78 STEIN AJA: I agree with Young CJ in Eq.

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