Supreme Court of SA|2003-06-06|Before: Doyle CJ, Besanko JJ, Prior J

PIWONSKI v KNIGHT No. SCCIV-00-151 [2003] SASC 169 (6 June 2003)

1 DOYLE CJ: I have had the benefit of reading the reasons prepared by Prior J in this matter. I agree that the appeal should be dismissed. In deference to the forceful argument advanced by Ms Powell QC, Counsel for the appellant, I propose to consider that argument in more detail than Prior J found necessary.

2 Mr Piwonski suffered a stroke as a result of a procedure carried out in April 1997 to replace his aortic valve. It became apparent shortly after the operation that Mr Piwonski had suffered a stroke. He has been left with a significant disability.

3 The Judge made a finding as to the cause of the stroke which is not challenged. The Judge said at [154]:

"The stroke was consistent with a blockage in an artery in the right side of the brain. I find that the most likely cause of the blockage in the artery in the brain was the accidental release into the blood stream of a fragment of calcium dislodged from the operation site, which embolized when heart function was restored."

4 The operation was performed by Dr Knight. The replacement of the aortic valve involved the removal of calcium deposited in the region of the calcified aortic valve. Dr Knight knew before the operation that Mr Piwonski's aortic valve was severely calcified, and his findings at operation confirmed this.

5 The risk of a patient suffering a stroke in the course of such a procedure is well known. Published studies show a stroke rate for such procedures are between 0.5% and 5%. The Judge accepted evidence that in 1997, when the procedure was carried out, a generally accepted stroke rate for a reasonably competent surgeon was about 3%: [173].

6 According to the Judge, an important part of the procedure is the debridement of calcium, or its removal,

"to leave a clean non-calcified area in which to place the prosthesis and through which to insert the sutures by which the prosthesis is held in place:" [144].

Dr Knight's evidence was that the removal of the calcium proved unusually difficult. This was because the calcification was severe. As I understand it, this evidence was not challenged on appeal.

7 The Judge found that the dislodgment of the calcium, which led to the stroke, occurred in one of three ways. He said:

"155 There are three possible means by which a fragment of calcium might have been dislodged from the operation site in circumstances which could have resulted in that consequence:

(a) calcium may have been dislodged and fallen into the left ventricle during the process of removal of the leaflets;

(b) calcium may have been dislodged and fallen into the left ventricle during the process of debridement which followed removal of the leaflets;

(c) calcium may have been dislodged by the process of "compression and distortion of the calcified tissue in and around the area of the sutures (footnote omitted)" after the operation site had been closed and the heart re-started."

8 The Judge went on to say that it was "not possible to say which of those three possible causes accounts for the calcific embolization which resulted in the damage to the brain":[156]

9 The judge found that whatever the cause might be, it was not attributable to negligence by Dr Knight.

10 At trial, counsel for Mr Piwonski argued that the explanation for the stroke was either that identified by the judge in (a) or (b) above and not that identified by the Judge in (c). As will appear, the cause identified in (c) above was the case for Dr Knight.

11 Mr Piwonski's case against Dr Knight was put on three broad bases.

12 The first basis was that Dr Knight failed to advise Mr Piwonski adequately about the risk of him suffering a stroke. The Judge found that there was no proven relationship between the degree of calcification and the risk of a stroke: [187]. The Judge found that Dr Knight gave Mr Piwonski adequate advice and warning about the procedure. Those findings are not now challenged.

13 The second basis involved a fairly wide-ranging attack on the techniques or methods used by Dr Knight to perform the procedure, on his failure to use certain pieces of equipment, and on an alleged failure to take certain precautions which, it was argued, would have avoided or minimised the risk of calcium dislodging, escaping and causing calcific embolization. It was argued that a competent surgeon, in the circumstances, would have used the relevant techniques and pieces of equipment, and would have taken the relevant precautions. These criticisms were directed to obtaining a finding that Dr Knight did not take adequate precautions to prevent the escape of a calcium fragment, giving rise to the risk of a stroke.

14 The Judge rejected all of these allegations, finding that Dr Knight carried out the valve replacement with "an appropriate level of skill and competence": [300]. These findings are not challenged on appeal.

15 Counsel for Mr Piwonski also argued that the Judge should find that Dr Knight was aware during the course of the procedure, and before the valve replacement was sutured into place, that a piece of calcium had dislodged and had escaped into the left ventricle of the heart. That being so, Dr Knight should not have closed up the operation site without locating and removing the fragment of calcium, because of the risk that it would cause a stroke. On this argument Dr Knight was in breach of his duty of care in failing to remove the calcium, bearing in mind the seriousness of the risk that it created.

16 This argument asserted, in effect, that even if Dr Knight performed the procedure competently, he knew that somehow a piece of calcium had escaped, and knowing that he was obliged to locate it and to remove it. This argument is not directed to procedures intended to deal with the risk of an escape of a calcium fragment. It depends on a finding that Dr Knight knew that a fragment had escaped.

17 The Judge did not accept that submission. The factual basis was denied by Dr Knight in evidence, and, as already indicated, the Judge made now unchallenged findings that Dr Knight followed appropriate procedures to deal with the risk of a piece of calcium escaping during the procedure. In dealing with this aspect of the matter the Judge said at [60]:

"In the result, I accept the defendant's evidence, both as to the course of the operation performed on the plaintiff and as to the appropriateness of the surgical procedures which were carried out."

While there is no challenge to the finding that appropriate surgical procedures were followed, the judge's acceptance of Dr Knight's evidence as to the course of the operation was challenged on appeal.

18 The challenge to the Judge's conclusion that Dr Knight did not know that a fragment of calcium had escaped rests on an attack on Dr Knight's credit, an attack which the Judge rejected.

19 The trial began on 4 March 2002. About two weeks before then Dr Knight's solicitors provided to Mr Piwonski's solicitors a document dated 15 February 2002. It has been called the "suture placement" document. I will refer to it as such. The suture placement document does not purport to be a description of the whole operation. It describes in some detail the amount of calcium found at operation, its location, the difficulty that Dr Knight encountered in removing the calcium or calcified tissue, his decision to leave calcified tissue in place, and his decision to place sutures through that tissue despite the risk of a calcium fragment dislodging.

20 In particular, the suture placement document states, in effect, that the removal of all calcified tissue from the wall of the annulus, where the prosthesis was to be placed, was impossible. Dr Knight removed calcified tissue until he reached a point at which the removal of further tissue was likely to cause a hole in that part of the heart structure, with disastrous consequences. This was a result of the calcium or calcified tissue being as deep as it was.

21 In submissions this dilemma, that further debridement or removal of calcified tissue endangered the structure to which the prosthesis was to be sutured, was referred to as "the predicament". For convenience I will continue to use that expression as a shorthand reference to the situation that Dr Knight claimed he encountered.

22 Dr Knight's response to the predicament was to stop the debridement of the calcified tissue. He sutured the prosthesis into place, even though he knew that the sutures would pass through calcified tissue. In the suture placement document (it was accepted that the contents of the document originated from him) he said that the placement of the sutures in calcified tissue "gave rise to a fear of dislodgment of calcium." He had no choice. Appropriate steps were taken to minimise the risk of the dislodgment of calcium. The document concludes:

"In the circumstances, the suture placement and tying down of the valve had the potential to create compression and distortion of the calcified tissue in and around the area of the sutures creating the potential for calcific embolization once the heart became active again."

23 The suture placement document identifies a predicament that confronted Dr Knight which could not have been foreseen, and to which his response was appropriate. Ms Powell concedes this.

24 Ms Powell submits that the suture placement document was a recent invention or fabrication.

25 Why would Dr Knight have fabricated the suture placement document?

26 Ms Powell submits that in January and February 2002, Dr Berger and Dr Leverment, two experts retained by Mr Piwonski's solicitors stated in reports that statements allegedly made by Dr Neoh, Dr Knight's assistant, and by Dr Vedig, the intensive care specialist, shortly after the operation, indicated that Dr Knight must have been aware, during the procedure, that a fragment of calcium had escaped. The statements were said to have been made to Ms Jermakow, a close friend of Mr Piwonski.

27 Thus, apparently for the first time, an assertion was made that Dr Knight knew a fragment of calcium had escaped.

28 Ms Powell submits that the suture placement document was a convenient response by Dr Knight to this development. First, it negatived the suggestion that Dr Knight had let a calcium fragment escape during the procedure, by creating a situation in which the likely explanation for the stroke was the escape of a fragment of calcium after the heart became active, and in circumstances over which Dr Knight had no control. Second, it was a convenient response because in a sense it was unanswerable. Ms Powell conceded that if the suture placement document correctly described what happened, Dr Knight had faced a predicament to which his response was appropriate, even thought suturing through calcified tissue created a real risk of a stroke. Third, it was a convenient response because it would explain why, after the operation, statements were made by Dr Knight and others to Ms Jermakow, expressing concern about the prospect of Mr Piwonski suffering a stroke.

29 As Ms Powell submitted, the suture placement document was not a theory about what might have happened. It purported to be a statement of fact about what happened during the operation, raising a high likelihood that the placement of sutures was what led to the dislodgment of a fragment of calcium and the stroke.

30 Dr Knight agreed in cross-examination that the suture placement document was prepared by him, at the request of his solicitors, and in response to the reports by Dr Berger and Dr Leverment .

32 What is the suggested basis for deciding that the suture placement document is a fabrication?

33 First, Dr Knight dictated an operation report on 17 April 1997, immediately after completing the operation ("the operation report"). In November 2000, at the request of his solicitors, he prepared a more detailed description of the operation ("the detailed report"). Ms Powell submits that neither document refers to the predicament, or to the suture placement as the likely cause of the stroke. Ms Powell submits that the suture placement document does not fit with the earlier documents. This, she submitted, was inexplicable in the circumstances other than on the basis that the suture placement document did not truly state what had occurred.

34 Second, neither the predicament nor the suture placement theory were pleaded in the defence, nor raised in early correspondence that invited Dr Knight to explain what had gone wrong in the operation.

35 Third, the predicament and the suture placement theory were not brought to the attention of the main defence experts (Professor Tatoulis and Professor Buxton), in advance of the trial.

36 Ms Powell submits that there is no explanation for the failure to highlight this crucial matter at an earlier stage.

37 Fourth, Ms Powell submits that Dr Knight's explanation for the above matters was inadequate.

38 Fifth, Ms Powell submits that in conversations with Ms Jermakow, after the operation, Dr Knight and others did not refer to the predicament or to the suture placement theory. This suggested that it was not in their minds at the time.

39 On this basis, Ms Powell submits that the judge should have concluded that the suture placement document was a fabrication. She submits that the inevitable conclusion is that it was fabricated to rebut a claim that Dr Knight knew was true. That is, a claim that Dr Knight knew that a fragment of calcium had escaped during the operation.

40 Ms Powell submits that there is sufficient objective support for this thesis for the court, on appeal, to conclude that the judge erred in accepting the evidence of Dr Knight. She also submits that the judge failed to deal adequately with this part of Mr Piwonski's case, and that he misunderstood this aspect of the case.

Did the Judge misunderstand the plaintiff's case?

41 At one point in his reasons, the judge said that the plaintiff's case was that the cause of the stroke was a small fragment of calcium that was dislodged during the course of the operation or after the heart recommenced pumping: [89] fn29. The latter hypothesis was not part of the plaintiff's case. It reflects the suture placement theory and was the defendant's case.

42 Although the judge erred at this point, it is quite clear from his reasons that he understood the plaintiff's case. He dealt thoroughly with the two main attacks on the defendant, on which his findings are now not challenged.

43 He dealt separately with Dr Knight's version of the operation, and with the attack on that version mounted through the attack on the truthfulness of the suture placement document. The judge dealt with this issue fairly briefly. He did not refer to a number of the points made as part of the attack. But it is clear that he appreciated the point being made.

44 The general nature of his reasons on this point is another reason for dealing in detail with Ms Powell's argument. However, I bear in mind that on the appeal, which occupied two full days, the suture placement theory was the only issue argued. As can happen on appeal, all attention was focused on an issue which at trial was one of three issues only and, judging by the judge's reasons and what I have seen of the evidence, the issue that received least attention at trial of the three main issues argued.

Does the suture placement document conflict with the operation report and with the detailed report?

45 The operation report is quite short. After recording certain formal details, it contains about one A4 page of text.

46 Dr Knight agreed that the operation report should record anything of note about the procedure, and "a complication of any great note". He said that in his view the operation report was as detailed as was usual for such reports. He added that it would give "any treating doctor an absolute indication of why the problem might have occurred post-operatively". The operation report records, fairly briefly, the procedure followed through the course of the operation. Under the heading "Findings" it states:

"The aortic valve itself was exceedingly calcified and the most calcified this surgeon has ever seen. The calcium extended well into the septum and was up to 2cms depth in places."

"The diseased valve was resected and a long period of time was spent in debridement of the calcium. This was extremely hazardous owing to the friable nature of the calcium and the extremely (sic) amount present."

There is no apparent reference to the predicament, to the decision to cease debridement, or to the decision to suture through calcified tissue. There is no reference to the possibility of a fatal outcome if debridement had been continued. There is no reference to an apprehension that a stroke might occur.

47 The detailed report was prepared in November 2000 at the request of Dr Knight's solicitors. It is much more detailed. It is about three A4 pages long. It covers the whole operative procedure. At one point it states:

"Extensive debridement of further calcium was then carried out with the aid of rongeurs and this took some time to complete the decalcification."

"When it was felt that debridement had been carried out to a satisfactory level allowing for valve sutures to be placed without threatening the integrity of the aortic root, the ascending aorta and left ventricle were irrigated thoroughly with cold topical saline."

48 Ms Powell submits that there is here no hint of the predicament. Moreover, the document refers to completing the calcification, whereas as will appear the suture placement document states that decalcification was discontinued. The document refers to debridement being carried out "to a satisfactory level", when the later document records the decision to leave calcified tissue in place because if debridement was continued it was unlikely to leave a structure into which sutures could be placed. Ms Powell submits that in this document, if anything, the implication is that there was no concern for the integrity of the structure into which the prosthesis was to be stitched. She pointed also to the reference to the integrity of the aortic route, making the point that this was the part of the annulus to which the prosthesis was to be attached. The later document suggested that its integrity was threatened.

49 The suture placement document is just over a single A4 page in length. In contrast to the other two documents, it does not describe the whole procedure. It focuses on the extent of calcification, the debridement, the predicament and the decision to suture calcified tissue. It refers to "extreme lateral penetration" of calcium, a matter not specifically referred to in the other documents. I gather that this is significant because it is a reference to penetration of the wall of the aorta, the problem that Dr Knight said gave rise to the predicament. For the first time there is a reference to "dehiscence" or separation of the "anterior leaflet of the mitral valve from the aortic annulus" and to "some separation of the ascending aorta from the heart in the vicinity of the left coronary cusp." The predicament is described as follows:

"More and more calcium was removed, until serious concerns over aorto-ventricular integrity were felt. With no true annular tissue, ascending aortic tissue, or muscular septal tissue left, it was felt that further debridements of the seemingly endless calcium in this area would result in an unsalvageable aorto-ventricular dehiscence. Thus the judgment of this surgeon was to halt further removal of this calcified tissue and place sutures to secure the valve in place, through this area. It was this surgeon's clear belief that had further debridements continued, an irreparable outcome would have ensued."

50 The decision to place sutures through the calcified area is then described. The document states that this "gave rise to a fear of dislodgment of calcium." It concludes:

"In the circumstances, the suture placement and tying down of the valve had the potential to create compression and distortion of the calcified tissue in an around the area of the sutures creating the potential for calcific embolization once the heart became active again."

Ms Powell made a number of points about these documents.

51 The suture placement document contains much more detail than the operation report or the detailed report about the extent of calcification, and how it was handled. The operation report refers to the hazardous nature of the debridement process, but not to the predicament or to the need to suture through calcified tissue. Neither the operation report nor the detailed report refer to an apprehension that a stroke would result. The detailed report, she submits, talks of completing decalcification, whereas the suture placement document indicates that it was not completed. Likewise, the detailed report refers to debridement being carried out "to a satisfactory level" whereas the suture placement document is to the contrary. Ms Powell examined the three documents in some detail in her submissions. The effect of her submission was that the suture placement document tells a story that differs strikingly from the other two documents, and that there was no satisfactory explanation for the difference.

52 As well, Dr Leverment, an expert called by the plaintiff, said that if he had seen the suture placement document at the outset, he would not have made any criticism of Dr Knight. Ms Powell submitted that this indicated the significance of the difference between the first two documents and the third document. Dr Leverment described the suture placement document as "completely different."

53 Mr Trim QC, counsel for Dr Knight, made the following submissions by way of answer.

54 The first points are general ones. Presence of calcium gave rise to a hazardous situation only if it was at the annulus, and the operation report indicated its presence there (when it referred to the septum) and to the problem actually encountered (by referring to calcium being up to 2cms in depth). The septum itself is only about 2cms deep, and so this was an indication of the pervasive presence of calcium. There was no reference to the placement of the sutures creating the risk of calcium dislodging because the operation report, and the detailed report, gave "technical detail" on how the operation was performed, and did not deal with clinical findings. Also, the reference in the operation report to extensive calcification carried the obvious implication that it would be necessary to suture through calcified tissue. Indeed, the contrary view had not even been put to Professor Tatoulis or to Professor Buxton.

55 Dr Knight gave evidence at trial to the effect of these submissions, and so there was evidentiary support for them.

56 Similar points were made by Mr Trim with reference to correspondence which had passed between Dr Knight and other treating doctors, and to correspondence between solicitors, which material was said by Ms Powell also not to disclose the matters raised in the suture placement document.

57 Next, Mr Trim submitted that Professor Tatoulis and Professor Buxton (whom the judge preferred generally to the plaintiff's experts) did not agree that there was a medically significant discrepancy between the suture placement document and the other two documents. Professor Tatoulis saw no "discrepancy" only greater detail. In cross-examination, Professor Tatoulis agreed that if he found clear separation between the heart and the aorta he would record that. But, overall, his evidence does not appear to treat the difference between the documents as significant. Likewise, Professor Buxton appears to have regarded the difference between the documents as a matter of detail, rather than a discrepancy. I must say that considering the evidence referred to here, and other passages of the evidence of these experts, I find no significant support for the view that the difference between the suture placement document and the other two reports might be called a troubling discrepancy.

58 I note further that in cross examination Professor Tatoulis described the problem of calcium breaking away from the site of the sutures as a widely known mechanism by which calcium can be dislodged.

59 He also said that the predicament was a not unusual problem. Professor Buxton gave evidence to a like effect.

60 I add that Dr Stubberfield, another witness for the defence, appears to have agreed in cross examination that he would have recorded the fact that significant calcium had to be left in place, and that sutures were placed through calcified tissue. My impression is that Dr Ross, another defence expert, saw nothing to comment on in the differences between the reports.

61 Bearing all that in mind, it seems to me that Dr Leverment's comment, which implies that he regarded the differences as striking, reflects a view that was not shared by the experts preferred by the judge, and was probably a minority view. The judge preferred the evidence of Professor Tatoulis and Professor Berger to the evidence of Dr Leverment (and other experts called by the plaintiff).

62 Overall, having considered the detailed submissions put to the court, my view is that the differences between the documents, of which Ms Powell made so much, are adequately explained by the expert evidence. At first sight the differences seemed surprising to my untutored observation. But, bearing in mind the importance of expert evidence on a matter like this, the defence evidence provided a secure basis for the judge's view that the discrepancies or differences did not detract from Dr Knight's credit, and for the judge's view that the detailed report and the suture placement document in particular reflected Dr Knight's understanding of what he thought he was being asked to provide at the time in the context of the litigation: [56] and [59]. The relatively brief nature of the operation report also appears to reflect Dr Knight's own style of reporting, a matter on which the evidence suggests there is some variation among competent practitioners. Professor Tatoulis gave evidence to that effect.

63 I add that I do not regard the fact that the suture placement document emerged when it did as suspicious, in all the circumstances. It came in response to a new emphasis in the plaintiff's case. That is, a new claim of actual knowledge by Dr Knight that calcium had escaped, based on reports of certain conversations between doctors involved in the operation and Ms Jermakow. While the suture placement document does not respond to the claim that there is evidence that Dr Knight knew calcium had escaped, the making of that allegation might reasonably have been seen as calling for a response that explained why that allegation might not be correct.

64 I consider that the differences between the suture placement document and the other reports do not constitute an objective obstacle to the judge's acceptance of Dr Knight's evidence. Those differences require assessment in the light of the expert evidence. In the light of that evidence, and considering the matter more generally, those differences are capable of being satisfactorily explained.

65 For those reasons I do not accept that the suture placement document is an obstacle of a kind upon which an appellant court could properly rely to reject the judge's acceptance of Dr Knight's evidence on this point. Nor, viewing the evidence as a whole, do I accept that the suture placement document does provide a basis for a conclusion that Dr Knight's evidence about the course of the operation was untrue.

Is the failure to plead the suture placement theory significant?

66 The emphasis of the Particulars of Negligence in the Statement of Claim is on the procedures followed in the operation.

"Released the clamps when he knew or ought to have known of the likelihood of calcium debris still being present so as to constitute a danger to the plaintiff."

To my mind, that paragraph does not clearly allege actual knowledge on the part of Dr Knight. In context it would easily be read as referring to an awareness of the risk of calcium dislodging and to a failure to take appropriate preventive measures to prevent calcium being dislodged and entering the heart. The defence denies that Dr Knight "knew or ought to have known of the likelihood of calcium debris still being present": para 15.10. That likewise is a plea which does not appear to treat the allegation as one of actual knowledge that a fragment of calcium had escaped.

68 My view is that, in the context of the pleadings as a whole, it was not clearly pleaded that Dr Knight actually knew that a fragment of calcium had escaped.

69 That, however, is not the end of this point. I agree with Ms Powell that one would have expected some emphasis in the defence on the suture placement theory. However, if one accepts Dr Knight's evidence that the matters identified in the suture placement document were implicit in what he recorded in the operation report and in the detailed report, and were not extraordinary events, but were a problem that other surgeons encountered from time to time (and the evidence of Professor Tatoulis supports this view), then the failure to refer to the suture placement theory explicitly loses much of its significance.

70 My view is that the form of the pleadings does not provide any significant support to the submission made by Ms Powell, although I agree that it is somewhat surprising that the suture placement theory was not given some prominence. It is relevant to bear in mind that its relevance did not depend upon the making of an allegation that Dr Knight knew that a fragment of calcium had escaped. On Dr Knight's case, it could have been seen from the outset as providing a good answer to the allegations made against him from the outset.

Is the failure to raise the suture placement theory in correspondence and with the defence experts significant?

71 As to the correspondence with treating doctors, my view is that the failure by Dr Knight's solicitors to spell out the suture placement theory is explicable in the same manner as is the difference between the suture placement document and the other reports. That is, Dr Knight believed that the points made in the suture placement document were implicit in the information provided in the other documents. That explains the fact that in correspondence with other treating doctors Dr Knight referred to extensive calcification, but not to the predicament or to the placement of the sutures.

72 The failure to spell out to his solicitors, and to the defence experts, the matters set out in the suture placement document is not so easily explained. As I have already said, one might have thought that in the forensic context this answer or potential answer to the allegations against him would be brought out at an early stage. One would expect that if it had been, it would have been passed on by the solicitors. However, I accept the submission that until late in the piece the main thrust of the plaintiff's case was an attack on the advice given, and on the procedures followed in the course of the operation. If inadequate precautions against the escape of calcium had been taken during the course of the operation, it would not be an answer to say that the predicament occurred, and that calcium might have escaped after the heart was closed up. That would be met by the submission that it had been shown that inadequate measures were taken during the course of the procedure to prevent calcium escaping, and by an invitation to the court to conclude that calcium had in fact escaped at that earlier stage. Bearing that in mind, I accept that the predicament and the decision as to the placement of the sutures might not have appeared to have the significance that it ultimately assumed.

73 At the end of the day, while accepting that it is surprising that the suture placement theory did not become prominent earlier in the piece, I am not able to conclude on this basis that Dr Knight was untruthful.

74 As to the failure to raise the matter clearly with Professor Tatoulis or Professor Buxton (and I accept that it was not raised clearly with them before trial), my view is that the prospect of the predicament arising, and the consequent need to suture through calcified tissue, were matters implicit in what was described in the operation report, and that accordingly there was no great need to raise this matter explicitly with those experts. In all the circumstances, it was one of the possibilities that they could be expected to contemplate when considering the matter as a whole.

75 I agree with Mr Trim that, considering their evidence on the matter, Professor Tatoulis and Professor Buxton do not seem to have been wedded to the view that the source of the calcium that caused the stroke was the site of the sutures. Their evidence ranged over all of the issues that were alive at trial. They accepted that the calcium might have escaped in the manner suggested by Dr Knight, but recognised other possibilities. Once it is accepted that the predicament and the need to suture calcified tissue was implicit in the limited information provided in the operation report, the force of Ms Powell's submissions on this point is much diminished. That is not to say that it has no force at all, merely that the point is by no means compelling.

76 It follows from what I have said that I consider that Dr Knight's evidence about the suture placement document, and his explanation for the failure to identify clearly at an early stage the placement of the sutures as the likely site of the calcium that caused the stroke, as open to acceptance by the judge. In my view the submissions advanced by Ms Powell are capable of being answered.

Was the plaintiff's case on appeal fairly put at trial?

77 On appeal, Mr Trim argued that at trial it was not put to Dr Knight, clearly and fairly, that he knew during the operation that a piece of calcium had escaped, nor was it put clearly and fairly that he had fabricated the suture placement document to provide an answer to this claim, nor that his evidence at trial on this point was untrue.

78 Having concluded that Ms Powell's submission should not be accepted, I can deal with this point relatively briefly.

79 The opening by Mr Piwonski's counsel at trial raised the point that the suture placement document had emerged very late, and was inconsistent with earlier documents, with correspondence and with the pleadings. The suggestion of recent invention was clear.

80 It was clear at trial that it was the plaintiff's case that the suture placement document was a late invention, created for the reason explained. It would follow that the plaintiff's case at trial must have been that Dr Knight's evidence about the predicament and the suture placement document was untrue. The judge recognised that the plaintiff was making a "serious attack" on Dr Knight's credit: [49].

81 It should have been put to Dr Knight in terms that his evidence at trial about the predicament and the suture placement document was false, to enable him to answer that serious allegation fully and fairly. The claim that the suture placement document was a recent invention was put to him, but could have been put more plainly. Although the two matters are linked, fairness required that the allegation that Dr Knight's evidence about the predicament and the suture placement document was false be put to him expressly, so that there could be no doubt in Dr Knight's mind that it was being put, and no question about him having an opportunity to answer it. However, Dr Knight must have realised that this was the claim. As to the allegation that he knew that a fragment of calcium had escaped, that was not put to him at all.

82 Nevertheless, had it come to the point, I would not refuse to consider Ms Powell's submission on appeal. If necessary, the failure to put clearly and precisely the allegation of false evidence, and the failure to put the allegation of knowledge that a fragment had escaped could be dealt with by allowing for that failure in assessing the force of the submissions for the appellant. The failure to put the point clearly could be accommodated when assessing Dr Knight's evidence, and in particular the impact on his credit of the cross-examination. However, for the reasons already explained, it is not necessary to deal with this matter, because the substance of the challenge to Dr Knight's evidence fails.

83 At trial Ms Jermakow gave evidence of conversations, not long after the operation concluded, with Dr Neoh. It was argued that the statement attributed by her to Dr Neoh showed knowledge that a fragment of calcium had escaped during the procedure, and that he did not know how it had escaped.

84 The judge appears not to have accepted this aspect of Ms Jermakow's evidence. Even if it was to be accepted, my view is that her evidence provides no sound basis for a conclusion that Dr Knight knew that calcium had escaped before he closed up the heart, but did not know that this was attributable to the suturing process. Allowing for the manner in which it was given, the evidence is equally consistent with an expression of concern attributable to the events described by Dr Knight in evidence. I mention that Dr Neoh gave evidence, but had no memory at all of the operation or of any conversations with Ms Jermakow.

85 In fact, the judge accepted evidence from Dr Knight that he was the one who spoke to Ms Jermakow after the operation, and that he warned her of the risk of a stroke, without explaining that it was because of the need to place sutures through calcified tissue. I see no reason to draw any adverse inference from the fact that Dr Knight did not explain to Ms Jermakow the precise reason for his concerns. If anything, I would have thought it would be surprising had he done so. There was no need to go to this detail. There is nothing in this to support Ms Powell's submissions.

86 Ms Powell argued further that the judge erred in failing to admit and to rely on further evidence from Ms Jermakow of a conversation with Dr Vedig, the intensive care specialist. Ms Jermakow's evidence of that conversation was said to suggest that Dr Vedig knew that a fragment of calcium had escaped, or may have escaped, but that Dr Vedig was not aware of the fact that this was probably attributable to the need to suture through calcified tissue. The argument was that if Dr Vedig had been aware of this, he would have referred to it, and the fact that he was not aware of it suggested that suturing through calcified tissue was not in his mind, and by inference in the mind of Dr Knight, at the time.

88 The judge did not deal with this evidence or with this submission. On appeal, the admissibility of the evidence to prove Dr Vedig's knowledge or Dr Knight's knowledge was disputed. My view is that even if the evidence was admissible to prove Dr Vedig's knowledge shortly after the operation, and possibly by inference, Dr Knight's state of mind, the evidence goes nowhere. Bearing in mind that Dr Vedig may have known of Dr Knight's concerns, it is not surprising that he expressed similar concerns. There is no firm basis for reasoning that Dr Knight would necessarily have explained to Dr Vedig how the fragment had been dislodged or might have been dislodged, and so there is no firm basis for inferring that Dr Vedig's failure to explain this to Ms Jermakow gives rise to an inference that, at the time, Dr Knight did not believe the placement of sutures was the likely cause of the dislodgment of the calcium. Nor, in the circumstances, would I infer that the statement attributed by Ms Jermakow to Dr Vedig reflected knowledge that a fragment had in fact escaped, as distinct from concern that a fragment might have escaped.

89 For those reasons it is not necessary to deal with Mr Trim's submission, which has some force, that the basis on which this evidence was tendered shifted between trial and appeal, and that the submission now put should not be entertained, because had it been put at trial Dr Vedig might have been called by the defence.

90 For those reasons I consider that the submission that the judge should have found that the suture placement document was a recent invention fails. So does the submission that the judge should have rejected the evidence of Dr Knight about the predicament and about the placement of sutures through calcified tissue. That is not to say that there is no force in the submissions by Ms Powell. However, at the end of the day I am not persuaded by them. It follows that it was open to the judge to accept the evidence of Dr Knight about the course of the operation. The matters relied upon by Ms Powell do not provide a basis upon which this court can or should set aside the judge's finding.

91 The judge did not deal with this aspect of the plaintiff's case in the same detail as I have. Nevertheless, I am satisfied that he understood the submission advanced and intended to reject it. It appears that at trial this aspect of the matter did not receive anything like the prominence that it received on appeal, and that that is the explanation for the reasons of the trial judge being devoted mainly to the issues of the advice given by Dr Knight and of the manner in which the operation was conducted.

92 The outcome of the procedure has been disastrous for Mr Piwonski. One can understand a person in his position believing that his treatment was inadequate. However, the evidence points to the contrary conclusion.

93 For all those reasons the appeal should be dismissed.

94 PRIOR J: The appellant failed in his claim for damages brought against a heart surgeon who carried out an aortic valve replacement operation on the appellant in April 1997. As a result of that operation the appellant suffered a stroke. The appellant alleged that his surgeon failed properly to advise him of the risks involved in the operation, or performed it negligently, or both.

95 The trial judge found that the appellant was adequately warned of the risks associated with the procedure and that no shortcoming in the surgical techniques adopted by the respondent were made out. In dismissing the claim, the trial judge dealt with eight allegations of negligence in addition to the complaint of inadequate advice about the risks of the operation.

96 In this appeal, the appellant pursues but one allegation of negligence, claiming that the trial judge "fell into error in accepting what was called 'the suture placement theory' in circumstances where the theory was inconsistent with the objective evidence, including descriptions of the actual operation by (the respondent) himself." The trial judge accepted the respondent's evidence, "both as to the course of the operation performed on the (appellant) and as to the appropriateness of the surgical procedures which were carried out."

97 In the first part of his judgment, the trial judge referred to the serious attack upon the respondent's credit by reference to three documents in which the respondent explained the operative procedures he carried out on the plaintiff. In this appeal, the judge's credibility finding is attacked by a fundamental submission that in fact the trial judge should have found that the suture placement theory was a recent invention contrived to explain how calcium had escaped as a result of the operative procedures through no fault of the respondent. It is submitted that the trial judge did not address that question in his judgment nor the question whether the suture placement theory was an accurate description of what happened.

98 The three documents used by the appellant to attack the respondent's credit were the 1997 operation report dictated by the respondent immediately on completion of the surgery and two documents prepared subsequently by the respondent, or on his instructions, for the use of his legal advisors. One of those documents was prepared in December 2000. It gave a more detailed explanation of the procedures followed in the surgery. The second, dated 15 February 2002, was dictated on that date by the respondent's solicitor. It was headed "Suture Placement in Piwonski Case" and is referred to both by the trial judge and now as the suture placement document.

99 The trial judge acknowledged that there were significant differences between the documents, particularly in the suture placement document as opposed to the two earlier documents. His Honour noted that the document, prepared less than three weeks before the trial commenced, appeared for the first time to have advanced expressly the possibility that the appellant's stroke was caused by the dislodgment of calcium associated with the placement of sutures by which the prosthesis which replaced the aortic valve was tied into place.

100 The trial judge said that the criticism of some of the 11 expert witnesses, to the effect that the operation report was lacking in some detail, was well founded. However, after giving the matter "the most anxious consideration" the trial judge said that he "reached the view that the discrepancies between the three documents were not to be taken as detracting from the (respondent's) credit".

101 The trial judge said that he accepted the operation note as "an expression of the (respondent's) habit at that time", and that the lack of detail in the report did "not reflect upon its veracity". His Honour's view was that the operation report simply did not descend into relevant detail. He said that the other two documents largely reflected the respondent's understanding of the extent of the information which he believed he was being asked to supply.

"The heart was in sinus rhythm and there was gross cardiomegaly. Pulmonary pressures were extremely elevated. Overall left ventricular function appears significantly depressed. The aortic valve itself was exceedingly calcified and the most calcified this surgeon has ever seen. The calcium extended well into the septum and was up to 2 cms depth in places. The valve itself had only a pin point orifice ... Descending aorta was somewhat dilated and extremely thin."

103 The trial judge accepted the respondent's evidence that after undertaking various preliminaries he commenced the process of debridement of the calcium so as to enable fitting of the prosthesis, removal being effected largely by the use of rongeurs, a forceps-like instrument, similar to a pair of pliers, which effectively fragments the calcium by a crushing action and removes it piece by piece from the surrounding structures. The object of that process is to leave a clean non-calcified area in which to place the prosthesis and insert through that area the sutures by which the prosthesis is held in place.

104 The trial judge accepted that this part of the operation required considerable care and skill because of the depth to which the calcium had penetrated. A complication resulted from the process. This was a dehiscence or separation of the anterior leaflet of the mitral valve, an adjoining structure, from the aortic annulus associated with some separation of the ascending aorta from the heart in the vicinity of the left coronary cusp. The repair of the dehiscence was effected by using buttress mattress sutures, the anchorage of which is reinforced by small pieces of Teflon.

105 Whilst the repair was effected, the respondent's evidence was that it was nonetheless obvious that a good deal of calcium still remained. In the suture placement document the respondent said:

"However, beneath the right coronary cusp, the lateral extension of the calcium was extreme. It was over 2 cm in depth and extremely friable. More and more calcium was removed, until serious concerns over aorto-ventricular integrity were felt. With no true annular tissue, ascending aortic tissue, or muscular septal tissue left, it was felt that further debridements of the seemingly endless calcium in this area would result in an unsalvageable aorto-ventricular dehiscence. Thus the judgment of this surgeon was to halt further removal of this calcified tissue and place sutures to secure the valve in place, through this area. It was this surgeon's clear belief that had further debridements continued, an irreparable outcome would have ensued."

106 The trial judge said that this description by the respondent highlighted the problem which he faced,

".... namely that complete removal of the calcium from the circumferential base or ring, that is the annulus, so as to provide an uncalcified base of tissue onto which the prosthesis could be sutured, proved impossible without threatening the integrity of the structures. More particularly, in simple language, to have gone further would have caused a hole in the heart between the left and right ventricles which more than likely would have been an irreparable, fatal condition.

In the result, what must be accepted as a less than ideal process was then followed to secure the prosthesis, namely its placement upon an area from which all the calcium had not been completely removed, again using mattress sutures in an endeavour to buttress the sutures.

To return to the description in the suture placement document:

'Thus for suture purchase and security of valve placement, everting mattress sutures encompassing the area of this residual calcification were placed. This unavoidable situation necessarily involved the compression and distortion of the calcified tissue during suture tying, and gave rise to a fear of dislodgment of calcium. An inspection was carried out through the valve at the completion of tying down, but exposure was typically less than ideal, although no sign of calcium particles could be observed. The ventricle, now full of blood, was up-ended and emptied across the valve to try and flush out any residual particles prior to closing the aortotomy. In the circumstances, the suture placement and tying down of the valve had the potential to create compression and distortion of the calcified tissue in and around the area of the sutures creating the potential for calcific imbolization once the heart became active again.'

Despite these difficulties, the valve was placed correctly and properly seated, with the result that no para-valvular leak has since occurred. By all accounts the plaintiff's valve function by the medium of the prosthesis has been excellent.

However, soon after the operation it was apparent that the plaintiff had suffered a stroke resulting in left sided hemiplaegia.

The stroke was consistent with a blockage in an artery in the right side of the brain. I find that the most likely cause of the blockage in the artery in the brain was the accidental release into the blood stream of a fragment of calcium dislodged from the operation site, which embolised when heart function was restored.

There are three possible means by which a fragment of calcium might have been dislodged from the operation site in circumstances which could have resulted in that consequence:

(a) calcium may have been dislodged and fallen into the left ventricle during the process of removal of the leaflets;

(b) calcium may have been dislodged and fallen into the left ventricle during the process of debridement which followed removal of the leaflets;

(c) calcium may have been dislodged by the process of 'compression and distortion of the calcified tissue in and around the area of the sutures' after the operation site had been closed and the heart re-started.

On the evidence, it is simply not possible to say which of those three possible causes accounts for the calcific embolization which resulted in the damage to the brain."

107 The trial judge clearly considered the question of the respondent's knowledge during the operation as to the possibility that calcium had been accidentally dislodged and not retrieved. He accepted the respondent's evidence that he had a conversation with the appellant's friend, Ms Jermakow, very shortly after the operation in which he told her of his "substantial concerns" about whether the appellant would wake up normally or suffer a stroke because the respondent had been unable to remove calcium from an important area during the operation. His Honour found that that conversation was consistent with the view that the respondent was aware that he had been unable to remove all of the calcium which it would have been desirable to remove and that he honestly conveyed the fears which he held in that respect to Ms Jermakow immediately after the operation. His Honour expressly found that the conversation did not support the view that the respondent was aware that calcium had been dislodged during the course of the operation and that he had failed to locate and retrieve it.

108 The judgment and submissions put to the trial judge satisfy me that His Honour did address the submission that the suture placement theory was a recent invention contrived to explain how calcium had escaped as a result of the operative procedures, through no fault of the respondent. Contary to the submission on appeal, it was not necessary for His Honour to specifically address the question whether the suture placement theory was an accurate description of what happened. His Honour properly left the matter as he did, saying it was "simply not possible to say which of .... three possible causes accounts for the calcific embolization which resulted in the damage to the brain". The respondent was positive in his assertion at trial as to the cause of the stroke. He related it to the suture placement theory. The trial judge made a favourable credibility finding that the suture placement theory was not a recent invention. Nonetheless, the trial judge did not have to accept the respondent's belief as to the cause of the stroke. The trial judge plainly rejected the submission maintained here that the 15 February 2002 document was a lie. The inconsistencies alleged were considered and rejected.

109 The respondent was never specifically confronted at trial with an allegation that he was inventing something disclosed for the first time so close to trial. He should have been, to have had that issue properly considered at trial and reviewed on appeal. Where it is intended to suggest that a witness is not speaking the truth on a particular matter, the attention of the witness should be drawn to what is going to be suggested about it, so that the witness may have an opportunity of explanation[1]. If it is going to be suggested that a witness' evidence on any particular topic is false, that should be made clear to the witness[2]. I think that there was a failure to comply with the rule in Browne v Dunn[3]. The submission put to the trial judge that the two later documents did not accurately reflect what the respondent found and did at the operation was rejected by the trial judge notwithstanding the inconsistencies relied upon before him and again on the hearing of the appeal. This Court could disregard the submission given that it was not tested by being properly put to the respondent at trial[4]. To allege a lie was told to seek to obscure the truth that the respondent knew that calcium had escaped at the time he concluded the operation is a most serious attack upon the respondent's credibility and professional integrity. Yet it was not "fairly and squarely"[5] put to the respondent at trial. Notwithstanding a proper inclination to disregard the submissions put on appeal but reviewing the evidence, submissions and reasons for judgment, there is no proper basis for interference on the ground of appeal argued.

110 This Court lacks the true advantage in fact finding and credibility that the trial judge enjoyed. The credibility finding made in the respondent's favour is not glaringly improbable or contrary to any compelling inferences in the case[6]. Interference with the trial judge's conclusions is neither justified nor authorised.

112 BESANKO J: I agree that this appeal should be dismissed. I agree with the reasons of the Chief Justice.

[1] Reid v Kerr (1974) 9 SASR 367 at 374

[2] Thomas v Van Den Yssel (1976) 14 SASR 205 at 207; Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1 at 22 -23

[4] Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219 at 225 and 237; Precision Plastics Pty Limited v Demir [1975] HCA 27; (1975) 132 CLR 362 at 370 - 371

[5] Reid v Kerr (1974) 9 SASR 367 at 374

[6] SRA (NSW) v Earthline Constructions [1999] HCA 3; (1999) 73 ALJR 306 at [90] and [93]

PIWONSKI v KNIGHT No. SCCIV-00-151 [2003] SASC 169

At a glance

Court

Decision date

Before

Source

Judgment (139 paragraphs)

PIWONSKI v KNIGHT No. SCCIV-00-151 [2003] SASC 169 (6 June 2003)

Parties

Cases Cited (5)