Sanders v Dr Hillier

An overview of the facts of the case 6The plaintiff, who was born in 1941 and good physical health, began to develop problems with her back in the mid-1980s. She consulted the defendant (referred by her general practitioner, Dr Ingle) on 16 March 2009. After conservative treatment was unsuccessful, surgery was performed on 16 April 2010 to insert a cage into the spine to relief symptoms in the left leg. 7The surgery was successful, but post-surgery nursing notes for 17, 18, 19, 21 and 22 April 2010 noted that the plaintiff was "sick and vomiting" (18 April 2010), "nauseous" (19 April 2010), "unable to open her bowels" (21 April 2010), "vomiting" (22 April 2010) and "vomiting material with a faecal smell like coffee". The defendant, after several consultations, arranged for her to obtain an abdominal x-ray, as well as a full blood count. The abdominal x-ray taken on 23 April 2010, which showed no abnormalities, was reviewed by the plaintiff with the radiologist, Dr Kirwan, on 24 April 2010. By 24 April 2010, the plaintiff was noted by nurses to be "improving, tolerating fluid and small nibbles". There was nil vomiting on 25 April 2010, although there was nausea on the evening of 26 April 2010. 8On 27 April 2010, the plaintiff had her final consultation with the defendant whilst in the hospital. The plaintiff's condition had improved and the vomiting appeared to have ceased. She was discharged on 28 April 2010 and returned home. A follow-up consultation with the defendant was planned, in four weeks time. 9The plaintiff continued to have problems with her bowel motions and vomiting after her return home. On 10 May 2010, the plaintiff mentioned her bowel problems to her physiotherapist, who suggested that, since this problem had not resolved, she should bring forward the four week appointment which had already been arranged for the plaintiff with the defendant. 10The plaintiff brought forward her consultation with the defendant by one week, to 19 May 2010 at 10 am. On that day, the plaintiff told the defendant she was still troubled by nausea and vomiting, and sometimes vomited green bile. The defendant thought that the problem could be gall bladder or bile duct pathology. He thought she needed to see a consultant physician immediately, and telephoned Dr Landy, a consultant physician in the same building, who managed to fit her in to his appointment list straight away; according to the plaintiff's husband's notebook, Dr Landy saw her at 11 am, less than an hour after seeing the defendant. The defendant dictated a letter to Dr Landy saying that he was puzzled by the symptoms and that it was necessary to get to the bottom of the problem, but did not express a set diagnosis. Given the speed with which Dr Landy saw the plaintiff, and his dictation of his letter of diagnosis as soon as she had gone, he may not have seen this letter until later that day. Dr Landy relied upon his telephone conversation with the defendant in which the defendant described the symptoms, but ultimately relied upon his own observations of the plaintiff. 11The defendant received Dr Landy's letter dated 19 May 2010. This letter stated that examination, in particular of her abdomen, was normal. Dr Landy considered the symptoms were oesophageal reflux, and prescribed Nexium 40 mg. He noted he had asked the plaintiff to see Dr Ingle in a week, and that if her symptoms persisted he would be happy to review her progress. Should her symptoms persist, Dr Landy said he would pursue a gastroscopy. She was due for a review colonoscopy given her history of polyps, and the gastroscopy could be done at the same time. The plaintiff did not return to see the defendant again (the reference in the agreed facts to a 22 May appointment is an error: see Mr Sanders' diary (Exhibit B)). 12The plaintiff saw her general practitioner on 27 May, 3 June, 11 June, 15 June and 21 June 2010. She was due to go back to see Dr Landy but he was going away on holidays. Throughout this period her general practitioner, Dr Ingle, had been dismissive of her complaints; he described her in his referral letter to Dr van den Bogaerde of 21 June 2010 as having "dying swan syndrome", adding that he was "at the end of my tether" about the plaintiff's condition, adding that she was "neurotic", and saying he had prescribed her Zanax for anxiety (Exhibit 1). 13On 22 June 2010, the plaintiff consulted Dr van den Bogaerde, who shared rooms with Dr Landy. His report of 22 June set out the plaintiff's history "from Tim's notes" ("Tim" being Dr Landy). He noted, in capital letters, an additional matter: 'SEVERE WT LOSS; 10 KG NEED TO MONITOR. WILL GET SURGICAL OPINION AS WELL." He went on to say he thought there was a small bowel obstruction, that she could have a peptic ulcer, and that "Gall bladder seems ok on [sic] us". He performed an ultrasound of her abdomen, stated he would admit the plaintiff and "ask for surgical opinion; do gastroscopy" as he thought she had a subacute small bowel adhesion type obstruction. 14 Dr van den Bogaerde did not perform the gastroscopy, although this appears to have been because he was unavailable. It was fortunate for the plaintiff that he did not do so. A surgeon, Dr Schwalb, diagnosed a bowel obstruction, advised against a gastroscopy, and booked her in for surgery on 23 June 2010. 15After Dr Schwalb performed surgery, sepsis set in. The plaintiff, on 25 June 2010, was transferred to Albury Base Hospital in their critical care unit. She was placed into an induced coma and Dr van Gelderen carried out a further operation on 26 June 2010. The plaintiff was transferred to Murray Valley Private Hospital on 16 August 2010 and discharged home on 17 September 2010. In an unrelated incident, the plaintiff underwent a further operation in the form of a hernia repair by Dr Schwalb. 16After the plaintiff was discharged home on 17 September 2010, she was very weak and needed care. She temporarily lost her voice due to a tracheotomy.

An overview of the expert evidence 17Four medical practitioners gave reports and/or gave evidence in relation to the issues arising from the particulars of negligence as initially pleaded by the plaintiff. Dr Anthony Greenberg, a general and gastrointestinal surgeon, provided three medical reports (Exhibit A) for the plaintiff, and participated with the defendant's two medicolegal experts in conclave. He gave concurrent evidence in court with one of the defendant's experts, Dr Meagher, a colorectal surgeon (his reports are contained in Exhibit 1). Dr Leo Zeller, an orthopaedic surgeon, participated at the conclave of experts but, due to difficulties in relation to his subpoena, gave evidence separately. Dr Landy, the first treating physician, also gave evidence separately. 18The experts agreed that the question of negligently performed surgery did not arise, and briefly repeated these views in evidence. The issues upon which the experts principally gave evidence related to the plaintiff's post-operative management (details of which was set out in paragraphs 46-53 of the summary of facts) and the post-discharge management of the plaintiff on 13 March 2010 (set out at paragraphs 54-62) of the summary of facts. 19As the summary of facts agreed on by the parties is both clear and concise, it is helpful to set the section covering post-operative management up to the appointment on 19 May 2010: "Post-operative management 46. Mrs Sanders was reviewed by Dr Hillier on 18 April 2010. She complained of feeling nauseous and uncomfortable. Dr Hillier examined her abdomen and found that it was not distended. The nurses reported bowel sounds. As with spinal surgery of this nature, all patients have initial bowel dysfunction and it is not at all unusual in the first 48 hours to have a degree of bowel upset. 47. Mrs Sanders was seen on 19 April 2010 by Dr Hillier at which time she was up and ambulating. An x-ray report dated 19 April 2010 indicated the placements of the hardware were satisfactory. Mrs Sanders reported she was still troubled with dry retching and nausea and was hiccupping. Dr Hillier decided she should remain on intravenous fluids. 48. On 20 April 2010 Dr Hillier saw Mrs Sanders and noted she had improved and was doing quite well. Mrs Sanders said she was less nauseous. 49. Mrs Sanders was reviewed again on 22 April 2010. She was ambulating quite well and said she felt able to go home tomorrow. 50. Dr Hillier referred Mrs Sanders for an abdominal x-ray on 23 April 2010 to provide assessment of her bowel status. The first line of investigation is a plain x-ray rather than a CT scan, as an x-ray will show free fluid in the abdomen and any signs of distension or obstruction. Dr Hillier's referral specifically requested that bowel obstruction be investigated. 51. On examination Mrs Sanders' abdomen was clinically unremarkable and flat, bowel obstruction was not expected. 52. On 23 April 2010 Mrs Sanders had an abdominal x-ray. Dr Hillier reviewed the x-ray report which relevantly stated "no gross faecal loading within the large bowel; no free gas can be seen; no calcification projected through the upper right quadrant." 53. Mrs Sanders was discharged from hospital on 23 April 2010. Post discharge management 54. On 19 May 2010 Mrs Sanders' consulted Dr Hillier, stating that she was still troubled with nausea and vomiting; she described that sometimes she vomited green bile. 55. Dr Hillier considered this to perhaps be symptomatic of a gall bladder or bile duct pathology. 56. Dr Hillier referred Mrs Sanders to Dr Timothy Landy, gastroenterologist and consultant physician. 57. Mrs Sanders was seen by Dr Landy that same day. 58. Dr Hillier received a letter from Dr Landy dated 19 May 2010, detailing his consultation with Patricia. Dr Landy's letter reported that examination, in particular of her abdomen, was normal. Dr Landy opined the symptoms were related to oesophageal reflux and prescribed her Nexium 40 mg. 59. Dr Landy noted that he had asked Mrs Sanders to see Dr Ingle in a week, and if her symptoms persisted, stated he would be happy to review her progress. Dr Landy stated should Mrs Sanders' symptoms remain he would be happy to pursue a gastroscopy. Dr Landy noted Mrs Sanders was due for a review colonoscopy given her history of polyps, so thought perhaps both procedures could happen at the same time. 60. Dr Landy's mention of polyps was the first mention of any such history. 61. Dr Hillier reviewed Mrs Sanders next on 22 May 2010. Mrs Sanders told him she had seen Dr Landy and was trialling Nexium. Dr Hillier noted that Dr Landy was to follow up with her. 62. Dr Hillier did not hear anything further from Mrs Sanders, nor see her again in consultation or receive any correspondence about her from her other treating practitioners." 20The evidence given by each of these experts is discussed in detail below. One preliminary point, however, should be noted. The expert witnesses (Dr Greenberg for the plaintiff and Dr Meagher and Dr Zeller for the defendant) and the treating doctor, Dr Landy, all agreed that the condition which led to the plaintiff's requirement for an emergency operation was a truly rare condition (T 256, 262, 280, 314 and 325). Dr Meagher said at T 323: "It's a real rarity and it's not surprising that the number of doctors that saw her postoperatively missed the diagnosis. I would have missed the diagnosis." 21The plaintiff's expert, Dr Greenberg, added: "I'm in agreement with what Dr Meagher says, however, I would if a patient came back with that nausea persisting, at that time, I would be anxious about what was causing it, and I would investigate it further." (T 323) 22Dr Meagher repeated this at T 325 when he said: "... it was missed because it's a very rare diagnosis. That's essentially the reason." 23Dr Zeller, who gave evidence separately, described the plaintiff's condition as "an extraordinarily rare condition" (T 381). 24Dr Landy, the treating physician to whom the plaintiff was referred on 19 May 2010, concurred.

Failure to diagnose that the peritoneum was torn during surgery 25The plaintiff had particularised that the defendant "failed to operate correctly in that he perforated the peritoneum and then he failed to observe that he had torn the peritoneum" (particular 12(a)). As a result of this failure to diagnose, the defendant failed to refer the plaintiff to a surgeon who would have corrected this while the plaintiff was still in hospital and under his care. However, the conclusion of the concurrent evidence (Drs Meagher and Greenberg) was that there was no tear to the peritoneum during the operation. Particular 12(f) ("causing injury to the abdomen and peritoneum") and particular 12(h) ("failed to repair tear to the peritoneum") have expressly been abandoned by the plaintiff as a result. 26Dr Greenberg's 12 November 2011 report had identified the defendant's negligence as being that the defendant had "nicked" the bowel during surgery and then failed either to recognise this or to repair it: "if the tear had been recognised it could have been repaired". This was negligent because "that [repair] would have prevented this complication" (p 3 of the report). Dr Greenberg repeated this in an addendum to the report of 12 November 2011, namely that the defendant "may have torn the peritoneum... as described in my original report". He added was "standard practice to repair the tear". This was the principal cause of the problem; the defendant's referral of the plaintiff to Dr Landy on 19 May was not identified as negligent. 27However, Dr Greenberg and Dr Meagher, in concurrent evidence as to whether there had in fact been a breach of the peritoneum or not, came to the conclusion that they "just do not know" (T 257). As the delay between the original operation and the corrective surgery was a number of weeks, the likelihood was that adhesions had occurred some time after the operation (T 258), her discharge from hospital, or indeed after she saw the defendant and Dr Landy successively on 19 May. 28When pressed for an answer as to when this adhesion process began to occur, Dr Meagher said that he would not know because it was "something I have never seen" (T 259). He went on to say: "I've never seen a case like this. I operate all the time on the peritoneum. We often make a breach in a peritoneum and don't close it and I've never seen this occurrence occur." (T 259-260) 29Dr Greenberg conceded: "Look, fundamentally I agree with Dr Meagher, what he said. I think it's very hard to we're postulating. The reason I thought it was related to a tear in the peritoneum, which can occur exactly as has been described, is that when Dr Schwalb did his operation in June, he made comment that the bowel was stuck to the retroperitoneal structures. There's only one plausible mechanism in which that could happen because it's got to get through the peritoneum to stick to those structures, is there has to have been a breach in the peritoneum. So for that reason I would suspect that's what that has been the mechanism of the small bowel obstruction. But the peritoneum is a thin structure, it can be torn at any stage during that part of the procedure. I would suspect the tear was posteriorly [sic] because that's where the bowel seems to have got stuck." (T 260) 30In addition, whether or not there was a breach of the peritoneum at the time of the operation or a subsequent tear, the process by which the intestine fell into the bowel was a gradual process taking days or even weeks after the adhesions had gradually formed. 31At T 261, Dr Meagher said it was "certainly possible" that at the time an x-ray was taken on 23 April 2010 there was only an adhesion and not a tear, and that, even if there were a tear, there would have been no movement of the bowel into the tear, in that this was something which happened gradually over a period of time, which meant that a diagnosis of ileus was "far more likely" (T 262). All that Dr Meagher could say was that: "there were in fact progressive symptoms during that, so there's a collision I think, in fact in retrospect and you can only say in retrospect it probably was all due to this adherence to the area of the surgery. Whether it was due to a breach in the peritoneum or not, we will never know, but it was in retrospect, I think possible to say, it was involving a small bowel obstruction. It's a rarity, a true rarity for this to occur." (T 262). 32Dr Zeller, in separate evidence, concurred with this view. 33Dr Greenberg's apparent retractions of his previously stated views that the defendant negligently failed to recognise and repair the tear to the peritoneum during surgery was the first of two significant concessions he made. The next concession related to the post-operative treatment of the plaintiff in hospital.

Post-operative treatment 34The post-operative period, namely 16 to 28 April 2010, was longer than expected by reason of the plaintiff's ongoing difficulties after the operation. Although the plaintiff in closing submissions effectively conceded that the claim now put was one of failure to diagnose on 19 May 2010, it is similarly essential for me to set out the evidence of the plaintiff's condition over this period of time, in order to identify the changes in the plaintiff's expert evidence on this issue. 35The relevant entries in the hospital notes confirm: (a)16 April 2010 - Plaintiff returned to the ward at approximately 11:30am after surgery. (b)17 April 2010 - Hospital notes indicate that the plaintiff had not passed flatus overnight. (c)18 April 2010 - Plaintiff noted to be sick in the morning and vomited prior to transfer to physiotherapy appointment. The plaintiff was also noted as refusing food. (d)19 April 2010 - The plaintiff was seen by Dr Hillier and the x-ray of the spine was reviewed. The plaintiff had an enema after returning from x-ray and complaining of still feeling nauseas. (e)20 April 2010 - No relevant entry. (f)21 April 2010 - The nursing notes note at 10:20pm that the plaintiff's bowels were still "not opening". The plaintiff was given Lactulose and Coloxyl and told she would require an enema in the morning if no bowel movement occurred. (g)22 April 2010 - At 6:00am the plaintiff was observed to be vomiting at the beginning of the nursing shift. The physiotherapy notes referred to the plaintiff being unwell and unable to keep food down. At 2:00pm the plaintiff suffered from a "large vomit". At 4:00pm nursing staff contacted Dr Hillier who was in theatre. A message was left with him concerning the ongoing nausea and he consulted the plaintiff during the evening when IV fluids were given to her. He referred her for an x-ray and full blood count the following morning. (h)23 April 2010 - The plaintiff, at approximately 1:00am, vomited about 200 ml of brown/yellow vomit which the nursing notes described as having a "fecal smell like coffee". She was sent for an abdominal x-ray by Dr Hillier. She remained "nil by mouth" and on IV fluids. (i)24 April 2010 - The plaintiff's x-rays were reviewed by Dr Kirwan. The plaintiff was noted to be "improving" and "tolerating fluids and small nibbles" in her diet. (j)25 April 2010 - The plaintiff did not vomit on this day and was able to tolerate fluids. (k)26 April 2010 - The plaintiff started to feel nausea in the evening. (l)27 April 2010 - The plaintiff said she felt sick during the previous evening and was observed to be eating very little. There was a consultation with Dr Hillier and a discussion about the issue of vomiting. Dr Hillier was not able to give a cause of the vomiting but said it was not related to the surgery and might be a problem with the gall bladder. However, it was agreed that the plaintiff was to be discharged the following day. (m)28 April 2010 - The plaintiff was discharged from the ward at 11:15am and remained at home. 36While all three medical experts in conclave agreed that the plaintiff's post-operative course was abnormal, the question was what it demonstrated. Dr Meagher and Dr Zeller agreed that at the time of discharge of the plaintiff, there was no indication of small bowel obstruction. Dr Greenberg stated there was "clearly something wrong" (Joint Expert Report, question and answer 8). All experts, including Dr Greenberg, considered it was reasonable for the plaintiff to be discharged home on 28 April 2010. 37The experts agreed that the two most likely diagnoses arising from the signs and symptoms occurring post-operatively were ileus or incomplete small bowel obstruction (Joint Expert Report, question and answer 10), and that the possibility of small bowel obstruction was in the order of 1% likelihood (Joint Expert Report, question and answer 4 and T 257). 38Question and answer 8 of the Joint Expert Report was as follows: "8. Do you agree that on the clinical presentation of the plaintiff to the defendant during her post-operative admission in hospital, the plaintiff's symptoms and signs were consistent with those which were expected or usual following such an operation, and not such as to indicate any diagnosis of small bowel obstruction? Dr Meagher, Dr Zeller and Dr Greenberg all agreed that the plaintiff's post-operative course was abnormal. Dr Meagher and Dr Zeller agreed on discharge of the plaintiff there was not an indication of small bowel obstruction. Dr Greenberg stated there was clear evidence that the plaintiff was not progressing as expected and there was clearly something wrong." 39At T 292, Dr Greenberg said he could understand why the pathology was not picked up by the hospital and went on to enlarge this point at T 303 and 308, as is set out in extracts from the transcript below. 40The Joint Expert Report (at question and answer 10) indicates that all three medical experts agreed it was reasonable for the defendant to refer the plaintiff for an abdominal x-ray on 23 April 2010. In particular, questions and answers 12 and 12A shows that all three medical experts agreed that the x-ray was unsupportive of small bowel obstruction: "12. Do you agreed that it was reasonable for the defendant, as an experienced orthopaedic surgeon, to read or interpret the x-ray consistent with the opinion of or the report of the Radiologist Dr Sanjay Kapur (dated 23 April 2010 - see attached), to the effect "A single view of the abdomen demonstrates gas within non-dilated loops of the small bowel. No gross faecal loading within the large bowel. No free gas can be seen. No calcification projected through the right upper quadrant. Previous laminectomies involving the mid to lower lumbar spine noted with internal fixators", as unsupportive of any diagnosis of small bowel obstruction at that time and as an indication or confirmation that the plaintiff's signs and symptoms, were likely caused by the operation or by some other cause? Dr Meagher, Dr Zeller and Dr Greenberg all agreed it was unsupportive of any diagnosis of small bowel obstruction. 12A. At the time of, and in the circumstances that you looked at the abdominal x-ray dated 23 April 2010, for the purpose of giving a medico-legal opinion, do you believe the abdominal x-ray shows signs of, or was consistent with, the development of small bowel obstruction? Dr Meagher did not believe the abdominal x-ray was consistent with small bowel obstruction. Dr Greenberg noted there was some dilated small bowel in the left upper quadrant. Dr Zeller stated he would discuss the x-ray with the radiologist and defer to what he said." 41Dr Greenberg's "dilated small bowel" observation was not pursued at trial; he acknowledged the X-ray was normal and said that a further X-ray "might've shown the change" (at T 323). Dr Meagher's evidence was that any dilatation happened slowly after discharge (T 320). 42What, then, was the gravamen of Dr Greenberg's criticisms of the plaintiff's treatment in hospital? 43According to the particulars provided for paragraph 12(j), if the defendant had "discovered the tear" he would have referred the plaintiff to a surgeon to repair it, and the failure to do so was negligent. However, this concession (that it was impossible to say if the tear occurred then, or at all) is only the first difficulty the plaintiff faces. The "significant delay in treatment" in particular 12(k) was particularised as being that "Dr Hillier should have referred the plaintiff immediately [i.e. while she was still in hospital)]... to a surgeon, such as Dr Schwalb, and he would have remedied the tear to the peritoneum and avoided the injuries and disabilities that the plaintiff currently suffered". 44However, Dr Greenberg resiled from this in his evidence as follows: (a)He agreed (at T 269) that "[i]t was not unreasonable for the clinician to put aside... a differential diagnosis of small bowel obstruction by the time the lady was discharged from hospital"; (b)He said (at T 275) that "[a]n ileus is a reasonable assumption" ; (c)He expressed the opinion that "I can understand [the small bowel obstruction ultimately discovered in June 2010] not being picked up in hospital" (T 292); (d)At T 301 he said "It's quite obvious that in hospital she appeared to have an ileus and her progress in hospital was such that she settled down to a degree."; (e)He also said (at T 301) "I don't think it's fair to say Dr Hillier didn't consider the diagnosis because clearly he did in the hospital."; (f)At T 303 Dr Greenberg expressed the view that "I think her discharge was appropriate. I don't think there's any issue with that. The only caveat I would have said would have been if you don't settle down or the nausea or vomiting persists you should come back earlier. I think that's not an unreasonable thing to say. One month follow up is probably quite standard after a normal orthopaedic operation of that magnitude. I don't think that's out of practice with standard orthopaedic surgery"; (g)At T 307-308, in response to Mr Campbell's question "Do you believe that Dr Hillier ought to have done anything different?", Dr Greenberg replied: "Well, as has been said many times, it's very hard to be asked a didactic question about a very fluid situation, a didactic answer about a very fluid situation. In my opinion it is unusual that she's still so nauseated at this stage, but as has been pointed out, people with bowel dysfunction can have prolonged periods of recovery. As I've also pointed out the longer that goes on, the less likely that is to be an ileus, I mean because it usually doesn't prolong for three weeks, that's quite uncommon and it would be more if somebody is sort of still having problems, you know, three to four weeks later, I would be anxious that there would be some underlying problem other than an ileus, and the most likely diagnosis would be a small bowel adhesive obstruction for one reason or another. It could've been the ileus that's drifted into it, it could've been as this case, a loop of bowel that got caught due to the surgery. I mean whether it was a peritoneal tear, I think is totally irrelevant. I mean that just seems to be the mechanism that it happened, that's well recognised, that sort of thing can happen and it's very uncommon I agree. And I have also, because I have spoken with Mrs Sanders myself, I know that she complained quite vehemently about the nausea and vomiting after during the hospital and after discharge so I mean there's no documentation of that other than what she says, but I mean I'm taking what she says as fact, at face value. So if you're looking at the situation, it's evolving, it's changing, every day it sounds like it's a bit different. The diagnosis is becoming a little more it's becoming more apparent that it's not an ileus, that's my opinion and if you sort of drop to that, you might start looking earlier rather than later, and as Dr Meagher's pointed out there's a variety of tests. Absolutely right, every test has got a downside, it's got an upside, surgery is all about risk management. You do the least you can to get the best result, okay? So she's got a few red flags going on already at discharge, but it's not inappropriate she was sent home, I totally agree with that. That's reasonable and best practice, there's nothing wrong with that, but it's the follow ups that are the issue. We do and if you pick it up early, you treat them conservatively as has been pointed out and that usually means IV fluids, if they're vomiting a lot or they've got a bowel full of fluid, you empty it out with a nasogastric tube, everything has a risk, but it's generally a safe procedure if done properly and it sometimes decompresses people and it unravels the whole problem and at least you know what you're dealing with and you can go through trials you know, where you decompress them, they feel a bit better, bowel recovery returns, you take the tube out, they feel okay, they start eating and they're fine, they can go home, but there's another group of people who start getting symptoms back, you know they start throwing up again and vomiting, and they're the group that sometimes need to go to surgery. You know, my experience is early surgery is better than late surgery because the chances of complications that happened to Mrs Sanders are reduced, because she was operated on eight weeks later I think it was, six weeks, whatever it was, a significant period of time, so clearly she's not eating properly, she's losing weight, she's a bit malnourished, et cetera, et cetera. But I mean that might just be a matter of opinion, that's been my experience. So I would've thought a caveat would've been, "If you don't feel well come back", because she's clearly not doing the normal post operative recovery and then when she came back then you'd be a bit anxious about what's going on." [emphasis added] 45Dr Greenberg stated on a number of occasion that he considered it was understandable why the plaintiff's pathology was not picked up in the hospital post-operative record (see (f) and (g) above). Following these concessions, the particulars of negligence in relation to the plaintiff's post-operative treatment were abandoned. 46The emphasised response in point (g) above is part of a response from Dr Greenberg lasting for more than a page of transcript. Many of Dr Greenberg's answers, both in evidence and in conclave, consisted of generalised statements, such as his statement at answer 8 of the joint conclave that there was "clearly something wrong" with the plaintiff. His answers in evidence showed a preference for words such as "may", "possibly" and "might" (see for example T 282-283, 287-288, 293 ("may be"), 302, 309, 315). Even if Dr Greenberg had not made the concessions that he did, the quality of his opinions is undermined by the opaque and general nature of such language.

The 19 May 2010 consultation 47Having abandoned the negligence claims posited on surgery and post-operative treatment, the plaintiff then concentrated the case upon the claim that the defendant referred the plaintiff, by reason of his negligent failure to diagnose, to the wrong specialist (T 446). The defendant ought to have known that the plaintiff was developing a small bowel obstruction when he saw her on 19 May 2010, and it was thus negligent to refer her to Dr Landy, a physician, rather than a surgeon. That surgeon would have treated her conservatively and carried out an ultrasound, as Dr van den Bogaerde (another physician) did, but it would have been "a far better outcome for this patient because her condition wouldn't have developed" (T 447). 48I shall first set out the evidence of the plaintiff and her husband about this consultation.

The plaintiff's evidence concerning the 19 May 2010 consultation 49When the plaintiff was discharged from hospital, an appointment had already been made for her to see the defendant in four weeks time. After consulting the physiotherapist and discussing the ongoing problem she was having with her bowels, the plaintiff telephoned the defendant's rooms to ask for an earlier appointment: "A. I had the consultation with her and then a couple of days later I was still feeling sick and more brown spots were coming with the vomit and I thought, well, it's time I go and see Dr Hillier and that's when I rang her and they weren't going to let me in and I said, "But I need to see him. I'm sick," and the receptionist said, "Oh, hang on. There's been a cancellation. He will see you at 10 o'clock," and I had to try and get dressed and be out there by 10 o'clock and I did. And anyhow, Dr Hillier was at a loss to how I felt." (T 30) 50The plaintiff said: "Q. You had a conversation with Dr Hillier when you went and consulted him and if you could tell us what you can recall about the content of that conversation in an "I said", "He said" format. A. I explained to him how I was still feeling and how sick I had been." And he examined my stomach and he was at a loss because he just put his Q. What did he say? A. "I don't know what's causing it. It could be gall," and he just put his hands behind his head and he pushed his chair back and he looked at me for 15 seconds and he said, "I'm going to send you to Dr Landy, a colleague of mine," and with that I went. Q. You saw Dr Landy. Did you see him that day? A. Yes. I went straight over. Q. Did you have a discussion with Dr Hillier I'm sorry to jump back again about your bowel function when you saw him on 19 May 2010? A. Dr Hillier seemed to think I was having a normal bowel function and I said to him I wasn't. Q. How was your bowel function by 19 May 2010? A. It was very slight because I was trying to eat a little bit but it wasn't back to full capacity. Q. When Dr Hillier examined you, or examined your abdomen, did you have any pain in your abdomen? A. Not a lot of pain. Only when he pressed hard, which naturally I'd have." (T 30-31) 51The plaintiff had seen her general practitioner, Dr Ingle, three times between her discharge and seeing the defendant (T 66). Her evidence was that her general practitioner was at a loss to determine what was wrong with her. However, what information she had given to Dr Ingle prior to seeing the defendant on 19 May 2010 appears to have been scant (T 69). She did not seek any medication from him (T 69). Consequently, there was no information from the plaintiff's general practitioner available for the defendant during this consultation. 52The plaintiff was asked in cross-examination: "Q. He asked you questions about your bowel function? A. Yes, yes. Q. And you told him, or described to him, that it was normal by then, didn't you? A. I don't think I said, "normal". I would have said they "moved" but not "normal". Q. You certainly didn't describe to him anything that was abnormal, or that worried you, or that concerned you, or that felt strange or abnormal about your bowel function, to Dr Hillier, did you? A. No. Q. And you told him that your nausea had continued since you were discharged from hospital? A. Yes. Q. And that you had, at times, vomited some green bile? A. It wasn't well, it was brown, more than "green". Q. But what I'm putting to you and may I tell you I am reading from Dr Hillier's report to your GP, Dr Ingel, that you had at times vomited green bile, do you disagree with that, that's what you told him? A. I can't remember. Q. When you saw Dr Landy the same day, that's 19 May, did he ask you about your health history, to give him a picture of you? A. He already had that Q. All right. A. I had seen him before. Q. Very well. I'm sorry, I should have realised that. So he, Dr Landy, he knew you, you'd seen him before? A. Once, yes. Q. Once. But he took from you an immediate history of what you'd been suffering from? A. Yes. Q. Going back to the Hillier operation and subsequent, you told him about that? A. Yes, yes. Q. You told him that for about a week after the discharge from hospital you'd suffered from some diarrhoea? A. A little, yes. Q. But you'd told him that that had resolved, hadn't it, it was no longer the case, didn't you? A. Yes. Q. And so following that week after discharge, may we say seven days from 28 April, so about 5 May, the little bit of diarrhoea had resolved? A. (No verbal reply) Q. Isn't that what you just told us? A. Yes, yes. Q. And once that had resolved you continued to eat food at home? A. Not a lot. Q. No. You continued to eat food at home, didn't you? A. Yes. Q. Yes. And the food passed through your alimentary system, didn't it? A. Not all, not straight away, I was taking, opening medicine at home. Q. You went to the toilet every day? A. Not every day. Bowels probably every a little bit every second or third day." (T 75-76) 53The plaintiff gave the same history later that same morning to Dr Landy, to whom the defendant referred her: "Q. You didn't tell Dr Landy anything at all about any abnormality or difference or different experience or strangeness about your bowel frequency or your avoiding frequency, did you? A. I can't remember, be no." (T 76) 54It was after the plaintiff saw Dr Landy that her symptoms became more serious: "Q. After you saw Dr Landy your evacuation of the food that you ate through the normal alimentary system changed in frequency, didn't it? A. Yes. Q. It became more difficult, didn't it? A. Yes. Q. And it became less frequent, didn't it? A. Yes." (T 76-77) 55In re-examination, the plaintiff was asked: "Q. What was not normal about your bowel functions on 19 May 2010? A. It wasn't fully normal like it should be or what it had been but before all of this started, but I wasn't eating and if I ate a little bit at night time it was only loose, a little bit of loose bowel the next day. Because I was taking opening medicines. So it it definitely wasn't normal." (T 89) 56The plaintiff explained at T 90 that "I told him they weren't normal because there was they were still moving a little bit but because I wasn't eating --". 57After an objection, the plaintiff stated at T 91 that her bowels were "loose" and added the words "a little" (T 91).

Mr Sanders' evidence 58The plaintiff's husband, Mr Lex Sanders, was called. He had a better recollection of events, as he took notes in a special diary while he was in the defendant's rooms, a practice he had adopted to ensure that he accurately noted advice from doctors. 59His diary has been tendered and marked exhibit B. Those notes state as follows: "Wednesday 19/5/10 Dr Hillier 10:15 Happy with his operation (16/4/10). Patty symptoms - nausea stomach pains hiccups heartburn vomiting - all since operation. Dr Hillier referred / arranged appointment with Dr Tim Landy gastroenterologist. See Dr Hillier again when gastro problem resolved." 60Mr Sanders' notes go on to refer to Dr Landy examining the plaintiff in his surgery on that same day at 11:00am. In other words, the plaintiff was in Dr Landy's surgery within a matter of minutes after seeing the defendant, with whom she had had an appointment commencing at 10:15am. The notes say "symptoms described to him indicates [sic] oesophagus reflux. Described Nexium (40mg). Arranged to see Dr Ingle next week." 61Mr Sanders' notes go on to describe the visits to Dr Ingle on 27 May, 3 June, 11 June, 15 June and 21 June 2010. It was on 21 June 2010 that Dr Ingle tried to arrange a further consultation with Dr Landy and, when Dr Landy was unavailable, with Dr Landy's colleague, Dr van den Bogaerde, who thought there might be a partial bowel obstruction and recommended immediate admission to hospital. There is no mention in the notes of any referral back to, or consultation with, the defendant by either the plaintiff or her general practitioner. 62Mr Sanders gave evidence as follows: "Q. As far as you can recall, what did your wife say to Dr Hillier in respect to the problems that she was having? A. She was vomiting, sick, nauseous, hiccups, heartburn, all since the operation. Q. What was that last bit, sorry? A. All since the operation, didn't have prior to the operation. Q. And what did Dr Hillier do or say to her in response? A. What I do recall, can I demonstrate? He sat back in his chair like this and he looked at her for probably 10, 15 seconds and said, "I'm going to send you to Dr Landy and that was about the extent of the visit. Q. Do you recall if anything was discussed between her and Dr Hillier about her bowel function? A. No. Q. Was she examined by Dr Hillier? A. Yes, he examined her middle area, yes." (T 98-99)

The defendant's evidence 63The defendant gave evidence that he telephoned Dr Landy. He spoke to Dr Landy in the presence of the plaintiff and her husband (T 205) and after he agreed to see them that day, he sent them to Dr Landy's rooms immediately. He then dictated a letter to Dr Landy, addressed to Dr Ingle, to explain why he had done this, but in practical terms, since Dr Landy saw the plaintiff at 11:00am, the information he would have had would have been the information in the defendant's telephone call. 64The defendant's letter of 19 May 2010 was as follows: "Dear Charles [Ingle] RE: Patricia Sanders DOB: 07/02/41 It is some 5 weeks since surgery, and Mrs Sanders, from a spinal point of view, is going satisfactorily, and post-operative xrays all look fine. However, during her time in hospital, and since she has gone home, she has been troubled with chronic nausea and vomiting, and has, at times, vomited green bile, suggesting some gall bladder or bile duct pathology. I am surprised to find that that has not settled, even though she has quite normal bowel function, and so I have asked Tim Landy to assess her today, to get to the bottom of this, and get her under control. Yours sincerely [Signature] Mr Terence M Hillier Orthopaedic Surgeon cc Medical Records, Albury/Wodonga Private Hospital Dr Tim Landy, Albury Wodonga Specialist Centre, Suite 3, 2 Ramsay Place Albury 2640" 65The defendant was cross-examined at T 207-208 as follows: "Q. I want to suggest to you on the face of it that this referral letter would suggest that you did not consider that she had a bowel obstruction when she saw you on 19 May 2010? A. Well, it was always the most likely diagnosis without assessing the patient but the lack of clinical signs that would go with that led me to feel that it was also important that we kept our mind open to other possible pathology. Q. Why is it, if it was the most likely clinical sign that you referred this patient to a gastroenterologist and not a surgeon? A. For that very reason, that because there was no sign of bowel distension or bowel blockage clinically I felt that the starting point for assessment, knowing that Dr Landy would have no hesitation in involving a surgeon further, either with discussion with me or even feeling comfortable with doing it directly but I felt that he because of the possibility of alternative pathology that on that day that would be the most valuable assessment. Q. If you had really considered that this lady had a bowel obstruction on 19 May, you would have referred her to a surgeon, wouldn't you? A. Yes. If I had made those clinical features consistent with that diagnosis. Q. Well, the clinical features weren't inconsistent with that diagnosis, were they? A. Well, they were, at that stage, very unlikely. Q. Her clinical features, you say, made it unlikely that she had a bowel obstruction on 19 May. Is that what you say? A. I've found nothing to fit with that diagnosis on that day. Q. Well, you didn't consider it at all, did you? A. I certainly did." 66The defendant explained his reason for referring the plaintiff to a physician rather than a surgeon as follows: "Q. I think we have already covered this but as I understand it your evidence is that the appropriate referral for a patient with a bowel obstruction is to a surgeon, correct? A. I think that would be Dr Landy would be as capable. Q. As a general A. But I think that if there was clear diagnosis of bowel obstruction then I would say that a surgeon would be the more immediate assessor. Q. Because the obstruction would I withdraw that. Now, what did you think of the diagnosis of reflux made by Dr Landy? Is that something that surprised you? A. I was interested that he noted those features. It wasn't a feature that I had elicited from Mrs Sanders. Bearing in mind that she didn't come back to see me after that so I read Dr Landy's observations with interest because it appeared to match what I had found in the clinical presentation and it did suggest that there might have been some upper bowel irritation that was a medical condition. Q. As far as you are aware, Mrs Sanders had never had reflux prior to her surgery, had she? A. Well, I hadn't made any notes of that in her history. Q. Did she come back to see you after 19 May 2010? A. No. Q. Was there I take it then that you were satisfied with the diagnosis of Dr Landy and didn't feel that she required any further followup? A. No, I expected that Mrs Sanders would come back to me for ongoing review of her spinal recovery. I did not see her as having completed recovery. I was concerned on that particular day that her complaints be addressed. I understood from Dr Landy's letter that they were being addressed and I assumed that she would come back to me and routine or spinal followup. Q. Thank you. So you had passed over her care in relation to the nausea and the vomiting to the gastroenterologist; correct? A. No. I had asked him to assess her for me on that day. I was prepared to continue management of that issue if he had felt that it didn't require his involvement." (T 208-209)

Dr Landy's evidence 67There was no evidence of an acute or subacute abdomen as at 19 May 2010, as Dr Landy's notes indicate. The defendant draws my attention to the following extract from the evidence of Dr Landy during his examination of the plaintiff at 11:00am on 19 May 2010: (a)"one of the big factors is abdominal pain" (at T 219, in the context of his actual history-taking and examination of the plaintiff); (b)The only description of any abdominal pain or discomfort was "vague upper abdominal tightness which has been occurring unrelated to meals over the past few years" (T 219); (c)"The abdomen was soft; there was no tenderness; there was no rigidity; there was no guarding, and the abdomen wasn't distended as you might find with problems such as bowel obstruction." (T 220) (d)"the cardinal features [of bowel obstruction] would be abdominal pain, vomiting and abdominal distension" and none of those features were present in the plaintiff as far as Dr Landy could elicit on that day (T 220); (e)If there was bowel obstruction, you "would expect all three [meaning abdominal pain, abdominal distension and vomiting]" cardinal features to be present (T 221); (f)The plaintiff's "bowel habit was felt to be reasonable subsequent to that week", meaning subsequent to the resolution of some diarrhoea at the end of the first week following her discharge from hospital, i.e. by about 5 April 2010 (T 220); (g)"I've seen a lot of medicine and surgery over the years and I've seen a lot of bowel obstructions, both large and small, and there was nothing on that day that rang alarm bells to me that Mrs Sanders had a small bowel obstruction." (T 223) (h)"... because I said before, there were absolutely no signs or features to lead me to that diagnosis [bowel obstruction] on that day." (T 227) (i)"Looking at the broad picture that day, bowel obstruction wasn't on my list of differential diagnoses. There was retching and no vomiting; there was really minimal, if any, abdominal pain; and the abdominal pain history I observed had been present for a year; and the abdomen was soft and nontender. If the small bowel was obstructed, it becomes distended." (T 229) (j)"If the bowel was obstructed, the findings would have been very different to the findings on that day." (T 230)

The joint expert's report 68The joint expert report (question and answer 15) states: "15. Do you agree that on the clinical presentation of the plaintiff to the defendant on 19 May 2010 it was reasonable for the defendant to refer the plaintiff to Dr Landy, specialist physician and gastroenterologist, on that date? Dr Meagher, Dr Zeller and Dr Greenberg all agreed it was reasonable for the defendant to refer the plaintiff to Dr Landy on 19 May 2010." 69During his evidence, Dr Greenberg resiled from this view, stating that a surgeon "would have been a better choice" although he ultimately conceded that "the acute or subacute abdomen is more a surgical area of expertise, but it doesn't mean a gastroenterologist is not capable of assessing that type of patient" (T 286-287). However, there was no evidence of an acute or subacute abdomen prior to 28 April 2010, as Dr Greenberg ultimately accepted. 70Question and answer 16 and 17 from the conclave notes are as follows: "16. Do you agree that upon Dr Landy's consultation with and examination of the plaintiff on 19 May 2010, a report by the plaintiff [sic] to Dr Landy, to the effect that: "Initially she denied any abdominal pain but does describe some vague upper abdominal tightness which has been occurring unrelated to meals over the past few years", together with Dr Landy's apparent clinical finding "Examination today was unremarkable ... Abdominal examination in particular was normal" are both consistent with (i) An apparent absence of complains of abdominal pain in the post-operative patient notes of the plaintiff; and (ii) Inconsistent with any differential or formed diagnosis of small bowel obstruction up to and including that date, i.e. 19 May 2010? Dr Meagher, Dr Zeller and Dr Greenberg all agreed statements (i) and (ii) were consistent with Dr Landy's letter. 17. Following the referral of the plaintiff to Dr Landy, was it reasonable for the defendant to act on advice to the effect that the patient "has been assessed by (Dr Landy) who has instituted treatment with Nexium and he will follow up this issue. For review when stable." by not requiring the plaintiff to return to the defendant for a subsequent consultation? Dr Meagher, Dr Zeller and Dr Greenberg all agreed it was reasonable for the defendant to act on advice from Dr Landy by not requiring the plaintiff to return to the defendant for a subsequent consultation." 71All three medical experts agreed that, in light of Dr Landy's report following the examination he carried out on the plaintiff on the same day she saw the defendant, there was an absence of complaints by the plaintiff indicative of a potential diagnosis of bowel obstruction and that the evidence was inconsistent with any differential or formed diagnoses of small bowel obstruction up to and including 19 May 2010. This is consistent with Dr Landy's evidence (T 230). 72Dr Meagher commented at T 288: "I think we did agree at the conclave after speaking about it that it was reasonable to refer the patient to Dr Landy. I'm not sure what I don't think you've changed your opinion about that. I think it was a reasonable thing. Dr Hillier recognised that it wasn't the patient was not progressing as normal and the predominant problem was vomiting. There was something strange. Dr Landy has some expertise in gastroenterology, I understand, and he works around the corner. That was expeditious management of the patient. In fact, it worked out well. Dr Landy saw the patient and things happened quickly." 73Shortly after these views were expressed by Dr Meagher, Dr Greenberg conceded (at T 291): "Now, I'm not suggesting Dr Landy should have made a diagnosis then and there but the whole problem with this lady is she's sort of not be followed up. That's the problem. She's sort of gone back to Dr Ingle and she's just sort of languished, right?" 74This is, however, inconsistent with the question and answer 17 given in conclave, set out above, and the fact that it is expressed in such hesitant language ("sort of not be followed up" and "just sort of languished") is unhelpful. 75The plaintiff said (T 48) that Dr Landy told her that if she did not feel better she should come back to see him. In addition, she had been told to see the defendant again "when gastric problem resolved" (notes of Mr Sanders, exhibit B). The plaintiff saw Dr Ingle on five occasions after 19 May 2010.

Conclusions concerning the 19 May 2010 consultation 76As is set out above, in Joint Expert Report question and answer 15, the unanimous opinion of the experts was that it was "reasonable for the defendant to refer the plaintiff to Dr Landy on 19 May 2010". Dr Greenberg stated at T 286 that a surgeon "would have been a better choice" but conceded that this "doesn't mean a gastroenterologist is not capable of assessing that type of patient". The reason Dr Greenberg gave for resiling from what appeared to be a clear statement of opinion in answer to question 15 was unexplained. 77Whether or not there is an explanation for Dr Greenberg's change of opinion, insofar as his concessions permit the drawing of a conclusion that he has revised his earlier opinion, the fact remains that there was no evidence of an acute or subacute abdomen problem on 19 May 2010. The evidence of the treating doctor, Dr Landy, on this issue could not be clearer. In addition, all three medical experts agreed that, in light of Dr Landy's report concerning the plaintiff's denial of abdominal pain and the result of his examination of the plaintiff, this was inconsistent with any differential or formal diagnosis of small bowel obstruction up to and including 19 May 2010. Dr Landy said at T 230 line 13: "Q. If anything like that had happened prior to this patient seeing you, would you expect to have found different signs than you found? A. If the bowel was obstructed, the findings would have been very different to the findings on that day." 78All of this points to there being no small bowel obstruction suffered by the plaintiff on or before 19 May 2010, or at the very least no pathology sufficient to justify any medically informed diagnosis of small bowel obstruction. 79It is very easy to make the layman's mistake of assuming, in a retrospective fashion, that because the plaintiff had surgery where the possibility of nicking the bowel was mentioned, this must be the explanation for the rare condition the plaintiff was later diagnosed as suffering. The adhesions the plaintiff developed after the operation, and the tear to the peritoneum which subsequently developed, occurred at an unknown time, but most probably in the days or weeks following the plaintiff's consultation with Dr Landy. During this time she did not return to see the defendant, conduct which the experts unanimously agreed was reasonable in the circumstances, but continued to consult Dr Ingle and then on 22 June 2010 was referred to another specialist, Dr van den Bogaerde. It is not submitted that the reason for delay was anything that the defendant said or did. The most probable reason is Dr Ingle's view that the plaintiff was suffering from "dying swan syndrome" and Dr Landy's diagnosis of reflux.

Expert evidence 80The correct approach to the analysis and assessment of expert medical evidence was considered most recently by the New South Wales Court of Appeal in Cox v Fellows [2013] NSWCA 206 at [163]-[191]. 81The first difficulty with Dr Greenberg is the changing nature of his opinion as to what constitutes negligence. These changes of opinion may briefly be summarised as follows: (a)He no longer holds the opinion expressed in the addendum to his report of 12 November 2011 (Exhibit A), that there was failure to recognise and repair a tear made during surgery ("it would be standard practice to repair the tear once it had been recognised"). (b)He no longer holds the opinion that negligent coordination of the plaintiff's post-operative care (which "led to her having such a poor outcome") was the defendant's responsibility. His reference in his reports to poor coordination of the plaintiff's case and to Dr Ingle's complaint of "disastrous management post-spinal surgery" need to be read in this light. (c) Although he agreed in the conclave that the defendant's referral of the plaintiff to Dr Landy on 19 May 2013 was reasonable in the circumstances, he no longer holds that view (see Q & A 15). 82Part of the problem seems to have been that Dr Greenberg was unclear as to the plaintiff's medical history. He states, for example, at the addendum to his report of 12 November 2011 that it was "not clear from the notes what happened" after the plaintiff consulted Dr Landy, in that he could not see from the notes if Dr Hillier or Dr Landy has reassessed the plaintiff. It is in relation to this period of time that Dr Greenberg expresses the view that it "would have been more appropriate for Mrs Sanders to be seen by a general surgeon/gastrointestinal surgeon as the clinical problem was more of a surgical nature". This sentence follows directly on to the 11 June 2011 date, which Dr Greenberg gives as being the first time that the plaintiff's general practitioner heard from Dr Landy, which he bases upon "hearsay from Mrs Sanders". The question of the importance of following up of a patient needs to be seen in this regard. His opinion that the plaintiff "seem to fall between the various clinicians" notes that Dr Hillier was reassured by Dr Landy. The problem was that there was "no overall coordination and management". However, Dr Greenberg also opines that Dr Hillier was not responsible to deal with the complication, but simply to be aware of it and "be able to assess the patient and refer them to the appropriate specialist". 83This series of internally inconsistent statements puts the negligence as being, in serial form, failure to recognise the tear during the operation (abandoned), failure to identify the condition during the post-operative hospital period (abandoned), failure to refer the plaintiff to the correct specialist on 19 May 2010 (conduct Dr Greenberg described as "reasonable" in the conclave but which he resiled from in his cross-examination) and conduct after 19 May 2010 (not the subject of any claim brought by the plaintiff). 84Where an expert changes his or her opinion (Joseph Street Pty Ltd v Khay Tek Tan [2010] VSC 586 at [98]), the value of that opinion, unless the reasons for the change of opinion are carefully explained and supported by appropriate evidence, is very difficult. In the present case, Dr Greenberg has complicated those changes of opinion by moving between them at various stages of his cross-examination and reports and by contradicting his agreed statements in the conclave. 85Not only did Dr Greenberg agreed in the conclave that the referral to Dr Landy was reasonable, but he agreed that to trial Nexium was not unreasonable, on the part of Dr Landy, as a medical response by a consultant physician to a plaintiff who presented with such a history (T 310 line 49). In addition, Dr Landy's referral of the patient to Dr Ingle, her general practitioner, for review the following week was a reasonable step in these circumstances. There was no suggestion that Dr Landy was somehow prevented from referring the plaintiff to a surgeon, either on 19 May or at any time subsequently, if her condition warranted a surgical opinion. Precisely why it was negligent for the defendant not to do so, but not negligent for Dr Landy to do so, was never explained. 86In Sarian v Elton [2011] NSWCA 123 at [53]ff Beazley JA set out the circumstances in which a finding by a trial judge that a medicolegal expert has become an advocate rather than a witness may be inferred. That is not a finding to which one would lightly come in relation to a medicolegal expert in a professional negligence action. 87The problem in these proceedings is rather different. In Sarian v Elton, supra, there were two highly qualified specialists, each of whom, in the words of Hoeben J (at [138], dissenting), held different opinions. That is not the case here. The problem is that Dr Greenberg has contradicted himself in relation to each of the three bases upon which negligence was put forward. He has done so without exposing his reasoning, and in the most general terms, in circumstances where he has conflated the defendant's role with that of other medical practitioners and where he appears to have been uncertain as to relevant events in the medical history. In those circumstances, the opinions of Dr Greenberg on any aspect of the issues in dispute in this case are opinions upon which the court can put very little weight. 88Having noted this finding, I now set out the relevant provisions of the Civil Liability Act 2002 (NSW).

Duty of care under the Civil Liability Act 2002 (NSW) 89Issues of duty of care and breach of duty in relation to medical negligence claims must first be seen through the provisions of s 5B Civil Liability Act 2002 (NSW). This provision provides: "5B General principles (1) A person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm." 90In New South Wales v Fahy (2007) 232 CLR 486 at [57] Gummow and Hayne JJ explained the proper manner in which the court should approach the question of what a reasonable person would have done in the circumstances as follows: "[57] This approach to questions of breach of duty has come to be known as the "Shirt calculus". The description may be convenient but it may mislead. Reference to "calculus", "a certain way of performing mathematical investigations and resolutions", may wrongly be understood as requiring no more than a comparison between what it would have cost to avoid the particular injury that happened and the consequences of that injury. Shirt requires a more elaborate inquiry that does not focus only upon how the particular injury happened. It requires looking forward to identify what a reasonable person would have done, not backward to identify what would have avoided the injury." 91Counsel for the defendant, in his helpful written submissions, draws my attention to similar statements by Hayne J in Vairy v Wyong Shire Council (2005) 223 CLR 422 at [126] and Mobbs v Kain (2009) 54 MVR 179. 92Where the negligence in question arises out of a doctor/patient relationship, these principles need to be given careful attention. In Lowns v Woods (1996) Aust Torts Reports 81-376 Mahoney JA expressed the following, obiter: "In my respectful opinion the courts should be slow to intervene where what is involved is the weighing up of advantages and disadvantages, medical necessities and the like by the profession and then by the courts the mere substitution of the latter for the former. There are, of course, extreme cases. But there must, I think, be strong reasons why a clinical judgment properly arrived at is to be put aside as wrong and, a fortiori, as negligent." 93Similarly in Ren v Mukerjee [1996] ACTSC 119 at [81], Miles CJ held: "It is also necessary, in my view, to say clearly what many would consider obvious, namely, that in actions for professional negligence the plaintiff still retains the onus of proving that the relevant act or omission on the part of the defendant was unreasonable. This may be in contrast to actions for negligence for personal injuries sustained in the workplace or in a traffic accident, where, so long as there is a practicable means of minimizing the risk of foreseeable injury, there is, in practical terms although not in theory, an onus on the defendant to show that it was reasonable not to take that means in order to minimise the risk: see Miletic v ACT Health Commission [1995] HCA 13; (1995) 69 ALJR 675; Colonel Clints Bargain Stores Pty Limited v Molero (unreported, Full Court of the Federal Court of Australia, 8 November 1996). However, until instructed otherwise, I do not accept that the demise of the requirement of positive proof of unreasonableness on the part of the defendant has spread to actions for damages for professional negligence. The need to prove that the defendant's act or omission was unreasonable, and not simply avoidable, lies at the heart of the action." 94The defendant additionally relies upon s 5O Civil Liability Act 2002 (NSW) which provides: "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." 95The parties in their submissions did not identify the specific evidence going to the s 5O defence, and Mr Campbell's submissions on this issue were brief. The evidence of Dr Landy, Dr Zeller and Dr Meagher was to the effect that in referring the plaintiff to Dr Landy, the defendant was providing a professional service in a manner that was widely accepted by peer professional opinion as competent professional practice. Dr Greenberg agreed to this in conclave but in his evidence sought to withdraw this concession.

Causation - Sections 5D(1) and 5E Civil Liability Act 2002 (NSW) 96The defendant submits that the plaintiff has failed to discharge her onus as required under ss 5D(1) and 5E on the issue of causation. This issue is discussed in more detail below. 97Having noted these principles, I now apply them to the particulars of negligence pleaded in these proceedings.

(a) Failure to take any or any adequate precautions for the safety of the plaintiff 98The basis upon which this claim was particularised (see the Composite Particulars attached to Mr Evans' submissions) was that the defendant "failed to operate correctly in that he perforated the peritoneum and then he failed to observe that he had torn the peritoneum and he should have referred the plaintiff to a surgeon who would have diagnosed the torn peritoneum and prevented the plaintiff from suffering the injuries and disabilities she currently suffers." 99In submissions, counsel for the plaintiff acknowledged that by abandoning the other particulars, and in particular paragraph 12(f), the ambit of this particular now only relates to the failure to refer the plaintiff to a surgeon who would have diagnosed the torn peritoneum. 100While I accept the defendant's submissions (written submissions, paragraph 4) that any question of a peritoneal tear during surgery may be irrelevant, the plaintiff is still entitled to rely upon this particular in relation to the failure to refer the plaintiff to a surgeon when the plaintiff consulted him on 19 May 2010. 101As is set out above, the referral to Dr Landy was agreed by the experts in conclave to be reasonable in the circumstances. This was because the defendant was unable to make a diagnosis, whereas Dr Landy was. There has been no suggestion by any medical expert that Dr Landy was unable to refer the plaintiff to a surgeon if, having investigated the plaintiff's condition, he considered surgery was necessary. The plaintiff's presentation and history to Dr Landy was unremarkable. There is no suggestion that she required surgery on the day. 102There is no suggestion that Dr Landy's diagnosis on that day was negligent or in any way different to any non-surgical treatment provided have the plaintiff been referred to a surgeon. 103The experts' answers given in conclave (particularly Q & A 15) clearly show that the plaintiff's conduct is not negligent, but in accord with peer professional opinion, which means that the s 5O defence would be made out. 104This particular of negligence is not made out.

(b) Expose the plaintiff to a risk of injury which could have been avoided by reasonable care 105 While this was similarly particularised as relying upon the negligent conduct identified by Dr Greenberg, the particular relied upon not is that Dr Landy was not the appropriate specialist to see the plaintiff on 19 May 2010. 106This is not a "failure to diagnose" particular, but a complaint of failure to manage and treat the plaintiff appropriately, leaving her to her own devices of in hospital and after discharge from hospital and a general failure to manage. Referring the plaintiff urgently to a physician for diagnosis is not only reasonable but, for the same reasons as set out in relation to particular (a), in accordance with peer professional practice (s 5O). 107The "risk of injury" is the loss of a chance of a better outcome than that achieved by the successful operation performed by Dr Schwalb. The defendant's submissions that loss of a chance of a better outcome is not compensable damage (Tabet v Gett (2010) 240 CLR 537) is dealt with in more detail below.

(c) Failure to act in a professional manner that would be considered competent by peer professionals 108Having regard to the Joint Expert Report questions and answers 15, 19 - 22 and the evidence of Dr Meagher, Dr Zeller and Dr Landy (see above), this is a difficult particular for the plaintiff to make out. The concessions made by Dr Greenberg in his evidence (see T 269, 292, 308) and my findings as to the unreliability of an inconsistency of his expert evidence, mean that the plaintiff's treatment at the hands of the defendant not only on 19 May 2010, but for the whole of the period during which he was consulted (including the period of time the plaintiff was in hospital) was treatment of the kind considered competent by peer professionals. I note the plaintiff does not put that any claim for negligence lies against the defendant after 19 May 2010. 109The plaintiff has failed to establish that the referral to Dr Landy was conduct that would not be considered competent by peer professionals. In addition, the evidence of the experts in conclave warrants a finding in favour of the defendant in relation to the s 5O defence.

(g) Failed to recognise tear to the peritoneum 110Both particulars (g) and (h) (particular (h) being a plea of failure to repair the tear to the peritoneum) are based on particulars and a claim which was abandoned in the closing submissions of the plaintiff. As is noted above, Dr Meagher and Dr Greenberg in their concurrent evidence were unable to say with certainty that there was in fact a peritoneal tear, an opinion Dr Zeller endorsed in his separate evidence. 111Particular (g) is not made out. In addition, given the expert evidence on this issue, the defendant must succeed in relation to the s 5O defence.

(i) Failure to refer the plaintiff to an appropriate specialist in a timely fashion 112There are two elements to this particular, namely whether Dr Landy is an appropriate specialist, and whether the plaintiff was referred to him in a timely fashion. 113As to whether or not Dr Landy was an "appropriate" specialist, the concession by Dr Greenberg in the conclave report that the referral to Dr Landy was reasonable, and the opinion that Dr Landy formed on the day was reasonable, mean that this particular cannot be made out, given my preference for the evidence of Drs Zeller, Meagher and Landy on this issue. 114As to whether the plaintiff was referred in a "timely" fashion, she went straight from her 10.15 am appointment in the defendant's office to Dr Landy's rooms, and was seeing him ay 11.00 am, almost within minutes of her conversation with the defendant about her symptoms. The reference to "timely" is misconceived. The defendant acted immediately when consulted by the plaintiff and told her symptoms. 115This particular is not made out. In addition, for the same reasons as set out above, the s 5O defence must succeed.

(j) Failure to ensure the plaintiff's condition was monitored with adequate follow-up consultations 116The plaintiff had a follow-up appointment with the defendant and was immediately referred to Dr Landy, who monitored her condition in conjunction with the plaintiff's general practitioner. 117This particular is based on the plaintiff having suffered an undiagnosed tear to the peritoneum during surgery and being in this condition while in hospital and on 19 May 2010. The evidence is to the contrary. Even Dr Greenberg, who described the issue of any peritoneal tear as "totally irrelevant" (T 307), did not suggest that the plaintiff's condition should have been obvious to the defendant as at 19 May 2010 (T 259 (Dr Meagher) and T 260 (Dr Greenberg)). The Joint Expert Report (Q & A 15 and 17) makes this clear. 118This particular is not made out. In addition, the s 5O defence must succeed.

(k) Caused a significant delay in treatment 119The sole basis upon which any delay in treatment can be put at the defendant's door would be if, by referring the plaintiff to a surgeon, she would have been treated more quickly. 120The particulars recite that after the plaintiff suffered from "intermittent abdominal pain" she should have been referred to a surgeon who would have "remedied the tear to the peritoneum". Leaving aside the issue of whether there was in fact a tear to the peritoneum, the fact that there was no evidence of "intermittent abdominal pain" warranting a surgical review (see Dr Landy, T 219). 121Once the concession is made that the referral to Dr Landy is reasonable, and that the findings Dr Landy made on 19 May 2010 were unexceptionable, this particular of negligence becomes difficult to maintain. The only basis upon which a delay in treatment could be made out would be a duty to continue to monitor the plaintiff after referring her to Dr Landy, as opposed to referring her to Dr Landy in circumstances where her condition did not require any surgical treatment by the defendant or Dr Landy, and where Dr Landy was just as capable (if not more) of referring her to a surgeon. 122As was the case with the previous particular, the Joint Expert Report questions and answers 15 - 17, 20 and 22 - 23 meant that this particular cannot be made out. Not only did the plaintiff's symptoms appear to settle while in hospital (24 - 28 April 2010) but she continued to lead a comparatively normal life up to the day of her consultation with the defendant on 19 May 2010, and for some weeks thereafter. Even Dr Greenberg agreed that it will be best practice to consider a surgical opinion only if the symptoms did not settle. 123This particular is not made out. In addition, in light of the expert evidence identified above, the s 5O defence must succeed.

Conclusions concerning liability 124I am satisfied that there is no evidence, including no opinion by a medical expert who has provided a written report or given oral evidence, to the effect that the defendant's discharge of his duty of care to the plaintiff on 19 May 2010 departed from the appropriate or reasonable discharge of that duty. Beyond stating that a referral to a surgeon would be a "better choice", Dr Greenberg could not demonstrate the difference that would be made had this hypothetical surgeon examined the plaintiff as Dr Landy did. Implicit in his remarks was that the hypothetical surgeon would have operated on the plaintiff nonetheless. 125As is set out above, this is not supported by the expert evidence. Not even Dr Greenberg expressed the view that the plaintiff should have been operated on either on 19 May 2010 or shortly afterwards, given the symptoms that the plaintiff was displaying and the diagnosis of Dr Landy. 126Whether or not the defendant failed to make, or failed to consider, a diagnosis of small bowel obstruction, is not to the point. What the defendant did was refer the plaintiff appropriately and reasonably to a competent and experienced consultant physician who was able to see the plaintiff within the hour. Nothing in the letter from the defendant to Dr Landy distracted Dr Landy from that course. Dr Landy had a brief telephone conversation with the defendant and then the plaintiff went straight to Dr Landy's rooms, where she was seen immediately. It is unclear whether Dr Landy even saw the letter that was prepared by the defendant after seeing the plaintiff until during or after his examination of the plaintiff, when he formed his own views as to her condition. 127I am satisfied that not only by 28 April 2010, but by 19 May 2010, there was no evidence of bowel abnormality evident from x-ray, physical examination of the plaintiff, or objective reconstruction of her problems with vomiting. There is simply no evidence of obstruction, incomplete or otherwise, as at 19 May 2010, which would furnish clinical justification for any doctor to make a differential diagnosis of obstruction of the plaintiff's bowel or warrant surgery of an exploratory nature on a woman of approximately of 70 years of age who has just undergone significant spinal surgery a little more than a month beforehand. 128The unequivocal answer given in the peer environment of the conclave by the medical experts to questions and answers 15, 16, 17, 20 and 22 must be given their full weight. 129The plaintiff has failed to establish there was any breach of duty of care, and in addition the s 5O defence succeeds in relation to each of the particulars of negligence pleaded. 130This means that the plaintiff fails in her claim against the defendant. There are, however, two additional matters that I will note. The first is the change of case brought by the plaintiff on Day 4 and the second is the issue of causation.

The plaintiff's restated case on Day 4 131On Day 4 of the hearing, counsel for the plaintiff sought to restate the case from "that [the defendant] failed to diagnose a small bowel obstruction at any relevant time, i.e. between 23 April 2010 and 19 May 2010" to "failed to consider the diagnosis of a small bowel obstruction throughout his treatment of the plaintiff". 132The plaintiff later sought to restate her case again in closing submissions, to limit the case to the advice given by the plaintiff on 19 May 2010. 133Neither of these was the case the plaintiff brought the defendant to court to meet. These changes to the plaintiff's case created difficulties during a trial where the factual background was already of some complexity. 134The proposed restatement of the plaintiff's case on Day 4 is not supported by evidence from the reports of Dr Greenberg, or by anything which fell from any of the defendant's expert witnesses in the course of cross-examination. Dr Greenberg's reports put the plaintiff's case, in relation to failure to diagnose this condition, as being due to "no coordination of her post operative care" on the basis that it was "this aspect of Mrs Sanders' care that led to her having such a poor outcome" (see the report of Dr Greenberg, Exhibit A). However the concessions in the plaintiff's case in relation to her post-operative treatment means that the "no coordination" case cannot be made out as the evidence is clearly against any assertion on that basis. Nowhere in Dr Greenberg's report did he state that the failure to consider a diagnosis of small bowel obstruction resulted in the defendant failing to refer the plaintiff to a surgeon; the answer to question 15 in the conclave is to the contrary (see also T 301 (Dr Greenberg), T 280-281 (Dr Meagher)). 135It was unclear to me from the plaintiff's closing submissions whether the proposed amendment was still pursued, or whether the alternative ground of failure to diagnose on 19 May 2010 was pressed. I shall err on the side of caution and assume that both bases are relied upon. 136Independently of the issues of fairness which arise when any late amendment is sought, the proposed amendment to rely upon a failure to diagnose small bowel obstruction (either at any time before, or on 19 May 2010) is contrary to the expert evidence. Dr Greenberg conceded that he could understand why a clinician would put aside the 1% likelihood of such a diagnosis. To this should be added the uncertainty that, as at 19 May 2010, the plaintiff had developed this condition to any medically identifiable degree. 137I also note that neither the Consolidated Particulars nor the evidence of Dr Greenberg put forward the claim that the defendant somehow misled or misdirected Dr Landy, with the result that Dr Landy missed a diagnosis that he would otherwise have made. Dr Landy's own evidence was to the contrary (T 227-230). As was noted in the expert evidence set out at the commencement of this judgment, the plaintiff's medical problem was a truly rare condition. It was missed principally because it was a very rare diagnosis, that the practitioner who failed to make the diagnosis (if it was available) on 19 May 2010 was Dr Landy, not the defendant. 138It was for these reasons - the lateness of the proposed amendment, the absence of medical evidence in support of the proposed amendment, and the uncertainty as to the temporal element of the period in question that I refused the plaintiff leave to amend her case on Day 4. 139The next issue is the issue of causation.

Causation 140The defendant submits that the plaintiff has failed to discharge her onus to establish any causal relationship of any breach to the injury, loss and damage claimed. At its highest, the injury, loss and damage claimed is the loss of a better outcome, which is not compensable damage of a type to be found in a cause of action in negligence. 141Section 5D(1) Civil Liability Act 2002 (NSW) was considered in Strong v Woolworths Ltd t/as Big W (2012) 246 CLR 182 where the High Court at [18] identified the test as being a statutory statement of the "but for" test of causation, namely whether the plaintiff would have suffered the particular harm but for the defendant's negligence. The plaintiff must establish that the defendant's negligence was a necessary condition of her loss of a better outcome, or loss of a chance of a better outcome, in that but for the negligence of the defendant, the plaintiff would have had a better outcome from her abdominal operation. 142The particulars of injuries are as follows: (i)Small bowel had become adherent to retroperitoneal structures with subsequent obstruction and perforation; (ii)The plaintiff had to undergo a small bowel resection; (iii)The plaintiff had to undergo further operative treatment; (iv)The plaintiff suffered sepsis; (v)The plaintiff required ventilation and tracheotomy; (vi)The plaintiff suffered an incisional hernia; (vii)The plaintiff had to undergo hernia repair with mesh; (viii)Breach of the posterior peritoneum; (ix)Herniation of the small bowel; (x)Had to have removed seventy centimetres of the small intestine; (xi)Shock; (xii)Stress; (xiii)Psychiatric injury; and (xiv)Depression. 143One of the problems that the plaintiff has with the way in which the case has been conducted is that there was no evidence that the adhesion of the small bowel to the retroperitoneal structures was preventable or resulted from negligence. The abandonment of particulars of negligence in relation to the conduct of the operation, and in relation to the management of the plaintiff's subsequent care in hospital, restrict the plaintiff's case to a failure to diagnose a non-negligent surgical complication. The plaintiff's case must proceed on the basis that the obstruction and perforation occurred, not as a result of the defendant's negligence, but as a result of an extremely rare and non-negligent complication. 144Examination of the particulars of injury show that these fall into the following categories: (a)A non-negligent complication: particulars (i), (ii), (iii) and (viii); (b)A hernia which the plaintiff now concedes is unrelated to either the circumstances of her surgery, the operation, or to any act of negligence by the defendant: particulars (vi), (vii) and (ix). 145This means that the only particulars of injury which can be sheeted home to late diagnosis is that the plaintiff suffered sepsis (particular (iv)) and that the plaintiff required ventilation and tracheotomy (particular (v)). The plaintiff also claims for the shock and anxiety she suffered for this life-threatening complication which resulted in her spending a lengthy period in hospital. 146Given that the plaintiff's case is, as Dr Greenberg states, that a referral to a surgeon would have resulted in an earlier diagnosis of small bowel obstruction, giving the plaintiff "a better outcome", the physical injuries which can be sheeted home to the delay in surgery relate to the sepsis and other complications from which the plaintiff has made a complete recovery. I note the evidence of ongoing disabilities include a claim of distress and alarm and some psychological sequelae as well as voice problems following the tracheotomy. 147Question and answer 26 of the conclave's list of questions dealt with this issue as follows: "26. Do you say or do you agree that in the particular pathology of the plaintiff earlier surgery would more likely than not have given the plaintiff a better outcome and, if so, how much earlier would such surgery have been clinically justified (in prospect, not retrospect) and as to a "better outcome", how much better and in what respects, if any, do you say this would have been? In Dr Greenberg's opinion, earlier treatment, whether that be conservative or interventional, may have led to a better outcome. In Dr Greenberg's opinion, the question of how much earlier would depend very much on the clinical circumstances. To Dr Meagher's knowledge there was no evidence that different conservative management of incomplete small bowel obstruction alters the need for surgery but he was happy to change his mind when sent papers on this from Dr Greenberg. In Dr Meagher's opinion, the earliest that the plaintiff would have been operated on from the clinical information available to him would have been at or about the time of the x-ray taken on 22 June 2010, when there were clear signs of obstruction. Dr Zeller was in agreement with Dr Meagher." 148Dr Greenberg's claim that a surgeon, unlike a physician, would be more likely to consider surgery "earlier", which would have "more likely than not" have given the plaintiff "a better outcome" is a series of increasing vague statements which are of little assistance in determining the plaintiff's injuries and disabilities: Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705. In Makita (Aust) Pty Ltd v Sprowles, supra, Heydon JA (at [67]) refers to Ramsay v Watson (1961) 108 CLR 642 at 645 as follows: "[67] One other important aspect of Ramsay v Watson is the following statement (at 645): "... That some medical witness should go into the box and say only that in his opinion something is more probable than not does not conclude the case. A qualified medical practitioner may, as an expert, express his opinion as to the nature and cause, or probable cause, of an ailment. But it is for the jury to weigh and determine the probabilities. In doing so they may be assisted by the medical evidence. But they are not simply to transfer their task to the witnesses. They must ask themselves 'Are we on the whole of the evidence satisfied on a balance of probabilities of the fact?'." The jury cannot weigh and determine the probabilities for themselves if the expert does not fully expose the reasoning relied on." 149Contrary to what Dr Greenberg says, there was earlier treatment of a conservative nature, namely the ongoing treatment provided by the plaintiff's general practitioner, Dr Landy and Dr van den Bogaerde. Not even Dr van den Bogaerde considered it was necessary to call in a surgeon, or to refer the plaintiff for surgery. This was long after the plaintiff had left the defendant's care. By the time that the x-ray was taken on 22 June 2010, it painted a completely different clinical picture to the x-ray taken on 24 April 2010 as the following extract from the transcript shows: "EVANS: It demonstrates a completely different clinical picture to 24 April 2010 Xray which you've agreed to. WITNESS GREENBERG: Yes." (T 313) 150The plaintiff's own evidence was that her condition between 27 May and 22 June 2010 had become worse (T 55, 76 and 83), evidence that was corroborated by her husband (T 109). 151All of this makes it clear that, as Dr Meagher stated at T 322, if the defendant had "the magic diagnosis" on 19 May 2010 and conservative management had been instituted, the plaintiff would not have ended up being as bad as she was in June 2010 (T 321-322). However, as already indicated in my factual findings, I am satisfied that the plaintiff's condition had not developed as at 19 May 2010, and this was why Dr Landy was unable to diagnose any bowel obstruction when he saw her. 152As Dr Meagher pointed out at T 320, an incomplete obstruction and bowel dilatation develops very quickly. It was for this reason that I made the finding that I did. 153The question of when and in what circumstances the plaintiff was to be operated on were questions determined by persons other than the defendant. Contrary to the implicit submission of Mr Campbell that the sole chance the plaintiff had to be referred to a surgeon, the plaintiff could have been referred to a surgeon at any time by her general practitioner, Dr Landy or Dr van den Bogaerde. 154In addition, notwithstanding the seriousness of the plaintiff's condition when she entered hospital for corrective surgery on 23 June 2010, the operation was entirely successful. There is no evidence before me as to whether post-operative disabilities, such as a nasogastric-tube or difficulty walking, would have been avoided or diminished, whether the operation had taken place a week or a month after the plaintiff consulted the defendant. I am simply invited to speculate that as these events occurred, they must in some way be due to the delay of the operation. 155Counsel for the defendant submits, and I agree, that any chance of a better outcome is even vaguer than Tabet v Gett (2010) 240 CLR 537. Further, the loss of her chance of a better medical outcome is not, even if it were able to be proved, compensable damage. The difficulty in this case arises from the substitution of the loss of a chance of a better outcome for proof of actual physical injury as the gist of the cause of action. Gummow ACJ noted at [38]-[39] of Tabet v Gett, supra: "[38] No doubt the present case arose in very particular circumstances making it difficult to find the appropriate comparator or counter-factual. Usually this will require proof of what would have been the plaintiff's position in the absence of the breach of duty by the defendant. The difficulty in the present case arises from the substitution, for which the appellant contends, of loss of the chance of a better outcome for proof of physical injury, as the gist of the cause of action in negligence. [39] The cases dealing with the assessment of the measure of damages, whether in contract or tort, are replete with exhortations that precision may not be possible and the trial judge or jury must do the best it can. The treatment in Malec v J C Hutton Pty Ltd of the assessment of damages for future or potential events that allegedly would have occurred, but cannot now occur, or that allegedly might now occur, is an example. But in that case the claim giving rise to the assessment had been for physical injury, the contraction of a disease as a result of the negligence of the defendant. The imprecision allowed in the assessment of damages in such cases does not necessarily or logically apply where a claim for physical injury fails but is said to be saved by transmutation of the damage alleged into the loss of a chance of a better outcome." 156His Honour went on to note at [46]: "[46] Further, and as an additional ground of decision, in personal injury cases the law of negligence as understood in the common law of Australia does not entertain an action for recovery when the damage, for which compensation is awarded consequent upon breach of duty, is characterised as the loss of a chance of a better outcome of the character found by the trial judge in this case."

Concluding remarks concerning causation 157By reason of the changes to the plaintiff's case in the course of the hearing, which included the abandonment of many of the particulars of negligence (see paragraph 2) and the bringing of a fresh ground on Day 4, portions of this judgment are unfortunately repetitious. 158In relation to causation, the case as presented in final submissions, namely referral to a physician rather than a surgeon, makes no sense. The plaintiff puts the bare assertion that a "better choice" than a referral to a specialist physician who could see (and diagnose) the plaintiff immediately, which is inconsistent with the conclave questions and answers 15, 16, 17, 20 and 22. 159The defendant's referral of the plaintiff to Dr Landy did not divert the plaintiff from an appropriate medical examination by a competent and experienced consultant physician who is in a far better position than the defendant to determine if the plaintiff required surgery. The alleged "failure" did not distract Dr Landy in making his own experienced independent appreciation of the plaintiff's condition. 160In addition, there was no bowel abnormality of which the plaintiff complained on 19 May 2010. I have drawn the inference that there was no indication of obstructions, incomplete or otherwise, in the plaintiff's bowel when she was examined by Dr Landy. This means that the hypothetical surgeon to whom the plaintiff would have been referred would have made the same findings as Dr Landy. In those circumstances, there is no causation. 161I also note (as I have in relation to the s 5O findings) the conclave question and answer 15, where the medical experts unanimously agreed that the referral of the plaintiff to Dr Landy was reasonable. 162The plaintiff has failed to establish liability and causation. In the event that I have erred in my findings in favour of the defendant in these proceedings, I set out some brief observations on quantum.

Quantum - Non-economic loss 163The plaintiff underwent emergency surgery. She was in hospital for a considerable period of time, for much of it in intensive care. On release from hospital, she had difficulty walking. She also had difficulty speaking because of the impact of the tracheostomy on her vocal cords. She suffered anxiety and depression as a result of the seriousness of her condition. 164Nevertheless, the plaintiff has made a complete recovery. Although she told the court she had difficulties speaking, she was able to give her evidence fluently and without any difficulty. Although she required nursing and home assistance by her husband for some time after the operation, she is now effectively independent, or as independent as a woman of her age can be. 165Mr Campbell submitted to me that non-economic loss finding of 25% would be appropriate, but that if I were to make a finding of non-economic loss of 15-17% ($5,500 - $10,500), he could not be heard to dispute it. 166I consider the plaintiff does not meet the threshold for non-economic loss. She suffered from a debilitating condition for slightly more than a month, followed by an extended stay in hospital for a very serious emergency, from which she has made a full recovery.

Out-of-pocket expenses 167The plaintiff always had to undergo surgery to correct the obstruction. The hernia she suffers from is agreed to be unrelated. Essentially this restricts the out-of-pocket expenses to the additional expenses incurred by reason of the extent of her surgery and additional periods of time spent in hospital. The plaintiff sought payment of all costs, including the hernia operation and costs of the surgery to correct the obstruction. 168Unless the expenses relating to the plaintiff's extended stay in hospital, and additional treatment, can be identified, it is hard to see how any claim can be brought for an operation which Mr Campbell conceded was inevitable (T 481) and where Dr Greenberg stated that it was difficult to say how much better the outcome would be if she had been operated on sooner. 169There is no claim for future expenses.

Domestic assistance 170Past domestic assistance is agreed at $4,000. No claim is made for future assistance. I note the defendant's submissions that 50% of the past economic loss claim should be discounted by reason of the plaintiff requiring assistance because of her age rather than infirmity. If so, past domestic assistance would amount to $2,000.

Costs 171I have reserved the issue of costs, as I apprehend that this may be a matter where there may be a submission that costs should not follow the event. In particular, the circumstances in which the plaintiff was ordered to pay costs thrown away by reason of the vacating of the first hearing date, due to problems with the subpoena to Dr Greenberg, and additional delays caused by the circumstances in which Dr Zeller's evidence was not able to be taken at the same time as the other experts, may be the subject of further submissions.

Orders (1)Judgment for the defendant. (2)Costs reserved. (3)Liberty to apply in relation to costs. (4)Exhibits retained for 28 days.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 October 2013