He agreed that each of the signs just mentioned was "fundamental" to the diagnosis of Mr Sherry as at 10.15 pm.
365 Dr Harris joined the list of doctors who did not accept that percussion ought to have been carried out by Dr Walsh at or shortly after 10.15 pm. He did not agree that percussion would necessarily have excluded the mistaken diagnosis of pneumothorax. He did say that, if his provisional diagnosis included either pneumothorax or haemothorax, he himself would tend to percuss the chest; that was because percussion has the potential to provide immediate information. However, he immediately went on with a qualification, that the information is just as likely to be misleading as useful.
366 Although Dr Harris agreed that a fluid challenge is both a diagnostic tool and a treatment, he did not accept that, on suspicion of the possibility of hypovolaemia, a doctor would administer fluid.
367 Dr Harris agreed that he would not regard a patient who was pale, sweaty, tachycardic, had two litres of blood in his chest, a left lung compressed against his vertebral column and evidence of mediastinal shift as haemodynamically stable. The usefulness of that answer to the plaintiff depends upon her establishing each of the assumptions on which the answer was based. Only two of these were seriously in issue: these were the compression of the left lung against the vertebral column, and evidence of mediastinal shift. Mediastinal shift is the displacement of the internal structures of the chest - for example, the heart and the lungs.
368 Dr Harris refuted "entirely" the proposition that, as at the time Dr Walsh saw Mr Sherry a little after 10.10 pm:
"there was every indication to insert a chest drain and to do so immediately" (t 3924)
369 In re-examination Dr Harris adhered to his view that the signs put to him in cross-examination as assumptions were consistent with hypovolaemia; but said that they were consistent with several other pathologies as well; that there were many signs that were inconsistent with hypovolaemia; and that the diagnosis as at 10.10 pm of pneumothorax was probably the most "likely". He thought that the 9.00 pm and 10.00 pm recorded urine outputs would have had "a huge effect" on a doctor's decision concerning the administration of fluid; the apparent urine recovery strongly contraindicating a diagnosis of hypovolaemia.
370 I turn now to deal with the evidence on this issue given by the defendant doctors themselves. It is obvious that each of them has a personal interest in defending his own judgment and conduct. However, in respect of none of the defendants did I detect any dissembling or defensiveness. There was no sign, to my observation, that indicated that I should treat the evidence of any of the doctor defendants as less worthy, by reason of his credibility, than that of any other witness. Each of these doctors was in an extraordinarily difficult position. I was satisfied that each had devoted many hours to assisting in the preparation of the case, and analysing the events, and the recordings of signs, which are the centrepiece of this case. It is not to be wondered at if this has produced some degree of reconstruction in the evidence given.
371 The bulk of Dr Marshman's evidence on this issue was given in response to cross-examination by counsel for the plaintiff. Dr Marshman did accept that, on the basis of Mr Sherry's CVP reading, his tachycardia, the three hours of oliguria between 5.00 and 8.00 pm (although apparently recovered by 9.00 pm), the new finding of reduced air entry on the base of the lung at 7.00 pm, the level of pain and the level of morphine administration, his pallor and coldness, and his failing to reach the expectations of the Clinical Path, he would have expected the nurse, between 8.00 pm and 9.00 pm, to have contacted either Dr Walsh or Dr Wilson. He thought that, if Dr Walsh had been called, he would have called the surgeon "if he were concerned" about Mr Sherry's condition. He did not accept that a chest x-ray should necessarily then have been carried out, saying that that depended upon a physical examination. However, he then agreed that if all those signs had been present when Dr Walsh examined the patient, then the next logical step would have been to order a chest x-ray (t 3483).
372 He agreed that, on the basis of the description of the plaintiff's observations of Mr Sherry at the time she and the family visited, Mr Sherry was not as well as he should have been and that, at this time, involving Dr Walsh was indicated. He did not agree that percussion of the chest was then necessary, saying that auscultation would be sufficient if that showed that air entry was satisfactory; if air entry was not satisfactory then a chest x-ray and percussion would be indicated.
373 Dr Marshman was asked about his visit to Mr Sherry at about 9.30 pm. He said that he had read the Progress Notes and the ICU Chart but was not necessarily aware that Mr Sherry had not been able to fulfil the expectations of the Clinical Path by ambulating, with help, to a chair. He did not agree that, on the basis of what he observed, he should have conducted further investigations. However, when asked in his evidence-in-chief about what he would have expected to see had the bleeding started, as hypothesised by Mr Glenville and Dr Stow, at about 1.30 pm and continued until 9.30 pm at a fairly regular rate, he said he would have expected, at 9.30 pm, to have seen a fall in blood pressure, a fall in CVP, a fall in oxygen saturations and a steady or raised heart rate and low urine output. He said that the one rule in relation to urine output is that it is possible for poor urine output to coexist with good cardiac output but the reverse, that is, poor cardiac output and good urine output, cannot coexist. None of the signs to which he referred was in existence at 9.30 pm.
374 In cross-examination Dr Marshman was asked about the 8.00 pm readings and observations. In the light of the then recorded three hours of oliguria, tachycardia, severe pain, pallor and coldness, and particularly the new sign of reduced air entry at 7.00 pm, he said that he would have expected the nurse to have notified Dr Walsh or Dr Wilson (although he qualified this by adding that he would only expect that if the nurse did not know that the doctors were aware of the signs, by, for example, having recently seen the patient); he would have expected Dr Walsh to have notified himself. He did not accept that the logical next step would be a chest x-ray unless Dr Walsh had some concern about the physical examination of Mr Sherry's chest. However, when the same assumptions were put to him again (t 3483), he said that if all those things were present on examination by Dr Walsh, then the logical next step was an x-ray. All of the signs put to Dr Marshman were signs that could be associated with hypovolaemia. He expected that a CMO seeing a patient with those signs would include hypovolaemia as part of the differential diagnosis. In those circumstances, he thought it would not be unreasonable to administer fluid (t 3484). (This was not a concession that good medical practice demanded that fluid be administered.) He rejected the suggestion that, on the basis of his observations of Mr Sherry's condition at 9.30 pm, he ought to have carried out auscultation and percussion. He said that Mr Sherry had very good chest expansion indicating an adequate volume of air entering and leaving the chest. He rejected the proposition that he, too, should at that time have ordered a chest x-ray.
375 Dr Wilson gave extensive evidence about the course of events from the time of Mr Sherry's surgery until his death. His credit also was significantly attacked and I should deal with those attacks at the outset. I observe here, as with Dr Marshman, that I noted nothing in the manner of his giving evidence that gave me any cause for concern or to doubt his honesty, his integrity, or his genuine attempt to recount the events as he recalled them and to give his opinions where he was asked.
376 The attack on Dr Wilson's credibility as made in the written submissions (D12 - D29 incl) tended to confuse issues of credibility, and issues as to whether or not his evidence should be accepted. The two are not necessarily the same thing. Lack of credibility may be a good reason why evidence may not be accepted; but evidence may be not accepted for reasons other than lack of credibility. This is particularly so where the evidence given is of the expert variety and the task is to weigh up competing opinions, each honestly held.
377 At present, I propose to deal only with those aspects of the submissions which really call into question Dr Wilson's honesty. The first attack upon him was along these lines. It was asserted that he had, in his evidence-in-chief, sought to give the impression that he was wholly dedicated to SAH when on duty there, but that this was belied by other evidence. The other evidence consisted of entries drawn from Dr Wilson's diary. Dr Wilson held dual appointments, one at SAH, and one at RNSH. He shared his time between the two hospitals and had obvious commitments to the ongoing work, not only of SAH, but also of RNSH.
378 Dr Wilson's diary (extracts of which constitute Exhibit CCC) contained entries showing a number of scheduled meetings at RNSH, on Monday 11 and Tuesday 12 August at times when he was rostered on duty at SAH. Dr Wilson was extensively cross-examined on these entries. The first meeting scheduled for 11 August was noted in his diary as an interview at 7.45 am. In his cross-examination Dr Wilson seemed to accept that he had attended that, but said that it would have been short because it was necessary for him to be at SAH in time for the morning handover, which occurred at 8.00 am.
379 Although the timing is difficult to reconcile (it is reasonable to think that the journey from RNSH to SAH would alone take at least 15 minutes), the issue on this meeting really went nowhere, since there was no suggestion that Dr Wilson had not undertaken his handover duties at SAH on Monday 11 August. The point of the cross-examination appeared to be an attempt to show that Dr Wilson tended to concentrate his attention on endeavours other than his duties at SAH.
380 More was sought to be made of a meeting scheduled for 5.00 pm on that day. The diary entry, however, had a cross through it, which Dr Wilson said meant either that it was cancelled, or that he did not attend.
381 The diary showed another entry for a meeting at RNSH on 12 August beginning at 5.00 pm and ending at 7.15 pm. Dr Wilson could not recall whether he had attended that meeting or not. There was no other evidence that he had attended. Notwithstanding this, the submission was put that the diary showed that Dr Wilson had attended that meeting and that, taking into account travel time, he must have been away from SAH's ICU from about 4.00 pm until about 8.00 pm. I am not satisfied that the evidence does establish that Dr Wilson attended that meeting. Nor am I satisfied that, even if he did, it denotes any lack of commitment on his part to his duties at SAH.
382 The most substantial attack on Dr Wilson concerned a second instance of the same kind. Another diary entry noted a meeting with a Professor George Rubin at the University of Sydney between 5.30 pm and 7.30 pm on 14 August. If Dr Wilson had attended such a meeting, he could not have participated in the 6.00 pm - 7.00 pm handover round, as he claimed in his evidence (supported by Dr Walsh). Dr Wilson denied that he had attended any such meeting. He was cross-examined at great length, the obvious aim of the cross-examination being to establish that, in dereliction of the duty he owed to SAH and its patients, including Mr Sherry, he had for unexplained reasons, absented himself, and been many kilometres away, in circumstances (given the time and known traffic conditions) that would have made it impossible for him to respond to an emergency at SAH. If I were so to find the consequences would be manifold: it would mean that Dr Wilson had not made the observations of Mr Sherry that he claimed to have made at the handover round; it would reflect adversely upon his commitment to SAH and its patients; and it would impact seriously upon his credibility. There was no evidence to contradict Dr Wilson's denial. Although it was not ultimately submitted that Dr Wilson had in fact attended that meeting, his evidence was described as "perplexing". This was because SAH rostering was done at the beginning of the year and his roster would then have been entered in Dr Wilson's diary, meaning that his note was made at a time when he knew that the meeting with Professor Rubin would cut across his SAH duties. If he had not intended to attend the meeting (knowing that would be on duty at SAH), why would he make the entry?
383 A further point that was made concerned evidence eventually given by Dr Wilson in cross-examination, when he asserted that he knew that he had not attended that meeting. Dr Wilson said that, in the preparation of his statement for the purpose of these proceedings, he used his diary and this alerted him to the entry concerning the meeting scheduled with Professor Rubin. However, said Dr Wilson, he had asked Professor Rubin for any information in his possession, and Professor Rubin had told him that he had no record of anything to which that meeting would relate.
384 The fact that he had checked with Professor Rubin was characterised as casting doubt upon his evidence. The question was asked rhetorically:
"Why would [Dr Wilson] have needed to check with Professor Rubin if he remembered seeing Mr Sherry in the afternoon and evening of 14 August?"
385 The submission is, in my opinion, disingenuous. It was perfectly reasonable for Dr Wilson to make inquiries of Professor Rubin. I accept without reservation Dr Wilson's evidence that he did not attend the meeting with Professor Rubin and that he was on duty at SAH at the times he said he was. There was, ultimately, no submission put that Dr Wilson had not seen Mr Sherry at the time he said he had, although this was thoroughly canvassed in cross-examination.
386 Finally, on the credit issue, Dr Wilson was asked about the retention of information contained on the electronic monitors in the ICU after Mr Sherry's death. His evidence was that these monitors retained information for a period of four or eight hours before it was automatically deleted. During that four or eight hours the information could have been retrieved by "interrogating" the machines. After Mr Sherry's death, therefore, there was a period of four or eight hours in which any otherwise unrecorded information could have been obtained from the machines, but Dr Wilson took no steps to ensure the preservation of that information. This was so even though an immediate decision had been made by Dr Marshman, with Dr Wilson's concurrence, to notify the Coroner of Mr Sherry's unexpected death. In written submissions, Dr Wilson's failure to have the information preserved was described as "a significant one".
387 No doubt something was sought to be made of Dr Wilson's asserted mala fides in this respect. That, also, I reject. Firstly, it was very plain that all doctors involved were deeply shocked and disconcerted by Mr Sherry's death. There was no reason, at that time, for them to think of preserving information. Secondly, there was no reason why they should have believed that the machines may have provided information which could have inculpated any of them in some form of malpractice. Concealing evidence of malpractice could have been the only conceivable reason for Dr Wilson deliberately to avoid retrieving the latent information on the machines. Thirdly, nothing was identified that the machines, if interrogated, might have produced that would have thrown light upon the present issues. Whatever material was lost might equally have helped the defendants' cases. These attempts to cast Dr Wilson in an adverse light entirely failed, as did the attack upon his credit generally.
388 In oral submissions, this attack was considerably diluted. Senior counsel accepted that he could not put the proposition that the material had been wiped deliberately, and recognised that, in all the circumstances, it would be too "savage" to suggest the kind of mala fides that had, earlier, been suggested.
389 Although the scope of cross-examination was relatively limited, I think it is a pity it was entered into at all. There never was the slightest reason to think that Dr Wilson, or anybody else, deliberately allowed any information to be lost.
390 In the end, all that was sought to be made of this was a submission based on the decision of the High Court in Allen v Tobias [1958] HCA; 98 CLR 367, adopting, at 375, the statement of principle pronounced in The Ophelia (1916) 2A.C. 206, as follows:
"If anyone by a deliberate act destroys a document which, according to what its contents may have been, would have told strongly either for him or against him, the strongest possible presumption arises that if it had been produced it would have told against him; and even if the document is destroyed by his own act, but under circumstances in which the intention to destroy evidence may fairly be considered rebutted, still he has to suffer. He is in the position that he is without the corroboration which might have been expected in his case."
391 Any allegation of intention on the part of Dr Wilson to destroy evidence is rejected. The alternative proposition, that, by reason of the destruction of the records, his evidence is without corroboration, seems to me to be meaningless in the circumstances of this case. I draw no inferences about what information might have been contained on the monitors.
392 It was put to Dr Wilson that, at 10.15, when Dr Walsh was called to see Mr Sherry, he should then have called Dr Wilson, even before having the results of the chest x-ray he had ordered. Dr Wilson disagreed. He thought that that would have been so had Mr Sherry been haemodynamically unstable when examined by Dr Walsh, but that, if he had been haemodynamically stable, then it was reasonable to wait for the short time it would take to complete the diagnostic assessment process.
393 It was Dr Wilson's opinion, on his interpretation of the ICU Chart and the Progress Notes that, at that time, the signs indicated that Mr Sherry was haemodaynamically stable.
394 Thus, it became important to determine whether, at that time, it was correct to describe Mr Sherry's condition as "haemodynamically stable". It will be remembered that Mr Glenville took the view that the physiotherapist's 7.00 pm note of reduced air entry on the left base of the lung was a significant new finding which should have set alarm bells ringing. It was suggested to Dr Wilson that, in the light of that entry, it was not correct to describe Mr Sherry at that time as haemodynamically stable. This gave rise to a digression into Dr Wilson's own observations. In evidence-in-chief Dr Wilson had said that in 1997 it had been his usual daily routine to attend the hospital in the morning in time to be brought up to date on any problems that had occurred overnight and then commence a formal ward round with the nurse supervisor and the CMO if available. This would continue until 11.00 am or midday. He would then deal with new admissions and paperwork. It will be remembered that a "handover round" was conducted at some time between 6.00 pm and 7.00 pm, the time depending on the circumstances. The records of each patient in the ICU were looked at during this round, which also involved the nursing team leader and the CMO, although this was a much less formal exercise than the morning round.
395 The Progress Notes contain no entry recording any observations of Mr Sherry by Dr Wilson on the evening of 14 August. It was thus suggested that some doubt existed as to whether or not he had in fact participated in an evening handover round. This, in turn, was said to cast doubt upon his evidence that he had observed Mr Sherry.
396 In answers to interrogatories Dr Wilson had said that the absence of any notes made by him of problems with Mr Sherry's respiratory pattern meant that, at the time of his observations, he had not detected any changes out of the ordinary for a patient who had had a left thoracotomy. He said that he had detected diminished air entry on the left side "from the time of my morning examination of August 14" (t 2675). He had not, however, recorded this in the notes, because it was not an unexpected finding.
397 (This interrogatory and its answer did not go into evidence in documentary form. Evidence of what Dr Wilson said in answer to the interrogatory emerges from his cross-examination. The questions and answers, as they appear on the transcript, are not unambiguous. However, it appears from the whole of the questioning, that what Dr Wilson was saying in the answer extracted above was that, during his morning examination, he detected diminished air entry on the left side, and not that, by the afternoon round, air entry had diminished since the time of the morning round.) The significance of all this concerned Mr Glenville's strong opinion that the reduced air entry on the left base, noted by the physiotherapist at 7.00 pm, was an important new sign signifying deterioration in Mr Sherry's condition. It was Dr Wilson's position that, as might be expected following a left thoracotomy, Mr Sherry had had reduced air entry on the left side from at least the early morning, and that the physiotherapy note therefore did not represent any new departure or significant deterioration. Some objective support for Dr Wilson's position is to be derived from the radiological evidence showing some left lung collapse before 7.00 pm (although this does not necessarily entail clinically observable collapse).
398 Dr Wilson was also asked about the proper characterisation of Mr Sherry's condition when Dr Walsh saw him at about 10.15 pm. He rejected the suggestion that a sudden increase in chest pain is consistent both with pneumothorax and haemothorax: he said that it was consistent with pneumothorax, but that haemothorax is generally painless. The sudden increase in chest pain experienced by Mr Sherry did not then bespeak haemothorax.
399 He agreed, however, that pallor and sweatiness are consistent with hypovolaemia (among other things). He agreed that the inability adequately to inhale or exhale in long slow breaths is consistent with both pneumothorax and haemothorax, as is decreased air entry on the left side; and that sinus tachycardia is consistent with hypovolaemia and that one cause of hypovolaemia is blood loss. The references to pallor and sweatiness, and breathing difficulties, were drawn from answers given by Dr Walsh to interrogatories.
400 Senior counsel turned to the question of percussion. He suggested that, if Dr Walsh had percussed Mr Sherry's chest at 10.15 pm, he would have discarded the diagnosis of pneumothorax and recognised that Mr Sherry probably was suffering from a haemothorax. Dr Wilson said that he found that a very difficult question to answer. He accepted that percussion of a patient suffering pneumothorax would give a quite different sound to percussion of a patient suffering haemothorax. The clinical picture then pointed more strongly towards pneumothorax than haemothorax, that in part being because of the pain suffered by Mr Sherry, but percussion would have given a contrary conclusion.
401 Dr Wilson raised doubts about whether the x-ray showed displacement of the trachea or mediastinal shift.
402 As at 10.30 pm Dr Wilson thought the signs were confusing: the starting point was that Mr Sherry had a clinical change with severe pain. However, an x-ray abnormality which appeared to be a haemothorax was not consistent with pain, and Mr Sherry had been assessed as haemodynamically stable.
403 Dr Wilson did direct Dr Walsh to insert a chest drain without delay. There were three reasons for the insertion of a chest drain: firstly, to determine conclusively if the substance observed on the x-ray was blood; secondly, to remove the blood; and thirdly, to enable monitoring so as to determine whether the bleeding had stopped or was ongoing and would require further intervention such as surgery (t 2755).
404 Dr Walsh's evidence on these issues can be dealt with with relative brevity. As I have noted above, he saw Mr Sherry during the routine evening handover on 14 August and was aware that there was some difficulty with pain control, and that his pulse rate was, in Dr Walsh's view, "slightly high". He thought that the reading denoted a "low grade sinus tachycardia". In the context of the stability of all other parameters, he thought that this was not a concern and could be explained by many circumstances.
405 The evidence does not disclose the precise time of the evening handover on 14 August. Dr Walsh had no specific recollection of examining Mr Sherry's ICU Chart, but said that it had been his practice to do so. His evidence was given, not from recollection, but from an examination of the ICU Chart. On that basis, he thought that there was nothing disclosed at 6.00 pm which would have suggested that it would be desirable to administer fluid. Dr Walsh was asked, as were the other medical practitioners, about the physiotherapist's 7.00 pm record of reduced air entry at the left base. In common with some other medical practitioners, he took the view that this was of no significance, and, that, had he known of it (he was not sure if it had been brought to his attention or not), it certainly would not have concerned him. This was because, he said, it is invariably the case that patients following cardiac surgery have lung collapse and consolidation of the lower part of the left lung.
406 When asked about the records as they appeared on the ICU Chart at 8.00 pm, Dr Walsh maintained that no cause for alarm was disclosed. This was because Mr Sherry's blood pressure, mean arterial pressure, and CVP were all steady and within normal range; that the administration of the drug GTN had been ceased with no apparent elevation of blood pressure; his temperature, at about 38 degrees, was fairly to be expected following his surgery; although his heart rate still qualified for the description of borderline tachycardia, it had decreased a little since 6.00 pm, and was readily explicable by the administration of Ventolin, fever and pain; urine output by that time had been low for three hours, but having regard to the earlier period of low urine output followed by recovery, this warranted only alertness but no other specific action; oxygen saturations were "very, very good"; respiratory rate was stable. There was nothing to indicate that a chest x-ray should be taken at that time. Nor would he have ordered fluid at that time, preferring to wait another hour to see if recovery occurred spontaneously. Dr Walsh did not consider that when he saw Mr Sherry at 10.15 pm there was anything in the signs and symptoms which suggested the need for fluid resuscitation therapy. This was for the same reasons given earlier: blood pressure readings were stable, and similar to what they had been throughout the evening; heart rate was stable, as was CVP; and Mr Sherry was then, apparently, making urine. Even by 10.45 pm or 10.50 pm, after having seen the x-ray and examined Mr Sherry and the monitors, Dr Walsh maintained that Mr Sherry's haemodynamic parameters had not changed and there was no need to administer fluids; the priority at that time was to insert a chest drain.
407 Dr Walsh was subjected to probably the most sustained attack of all doctor defendants in relation to credibility. Indeed, the submission was made that he was not only unreliable, but "actually dishonest". He was extensively cross-examined about perceived discrepancies between the evidence he gave in the proceedings, and statements he had previously made. One example of the approach taken by counsel for the plaintiff was this. In his evidence, Dr Walsh said that, as part of his 10.10 pm - 10.15 pm examination, he had felt Mr Sherry's hands and feet. In interrogatories Dr Walsh was asked the following question:
"31A. On each occasion when you saw the deceased, describe in full the time of the examinations (if any) and observations made of the deceased on each occasion?"
408 In a verified answer made on 21 May 2001, Dr Walsh said:
"At about [10.15 pm] on 14 August Mr Sherry appeared to be in pain. He looked pale and sweaty. His observations were stable. His pulse rate was about 100. He could not adequately inhale or exhale in long slow breaths as requested due to pain. He had decreased air entry on the left." (emphasis in original)