Turner v Blackstock

District Court of NSW|2019-04-03

Table of Contents Nature of case [1] Procedural context and issues [2] Evidence overview [3] - [5] Facts [6] - [42] Plaintiff's background circumstances [7] - [10] Breast augmentation surgery on 30 October 2014 [11] - [15] Post-operative complications [16] - [18] First remedial surgery - 21 November 2014 [19] - [23] Second remedial surgery - 14 April 2015 [24] - [27] Third remedial surgery - 23 October 2015 [28] - [30] Fourth remedial surgery - 22 November 2016 [31] - [33] Medico-legal opinion obtained by plaintiff [34] - [36] Disabilities that remain [37] - [41] Work and domestic effects [42] Assessment of damages [43] - [47] Disposition [48] Costs [49] Orders [50]

Procedural context and issues

On 11 February 2019, in the absence of any appearance by the defendant, on the application of the plaintiff, the Judicial Registrar entered a default judgment in her favour against the defendant, leaving the remaining question of damages to be assessed. These reasons deal with those damages. The plaintiff has limited her claim to damages for non-economic loss and out-of-pocket expenses. The proceedings are governed by the Civil Liability Act 2002 (NSW) ("CL Act").

Evidence overview

The plaintiff's chronology was tendered: Exhibit "A". The defendant's medical registration details were tendered: Exhibit "B". That exhibit shows that on 7 March 1984, the defendant became a registered medical practitioner. On an uncertain date he later became registered as a specialist general practitioner. His medical practice registration expired on 30 September 2018. His present registration status is that he remains suspended from practising medicine.
The plaintiff gave evidence in the form of an affidavit sworn on 2 April 2019. She also gave some oral evidence which expanded on aspects of her affidavit to outline relevant matters of history and treatment. The affidavit contained annexures comprising medical reports as well as copies of relevant pre and post-operative photographs taken of her by the defendant and other medical practitioners.
The plaintiff's evidence contained no inconsistencies. Her evidence was entirely credible and compelling.

Facts

The factual circumstances relevant to the assessment of the plaintiff's damages are as follows.

Plaintiff's background circumstances

The plaintiff resides in Victoria. In 2004 she completed her secondary schooling with the Higher School Certificate. Between 2004 and 2005 she initially worked for a customs broker. She later worked for a real estate agent. In 2005 she commenced a relationship from which she and her partner had children who were born in 2009 and 2011. The plaintiff's parenting responsibilities resulted in some interruption to her earning capacity.
The plaintiff has had a number of surgical procedures that are relevant to the present claim. The initial operation being the subject of these proceedings was carried out by the defendant when the plaintiff was aged 27 years. She is presently aged 31 years.
After the plaintiff had breastfed her second child up to age 18 months, she noticed that whereas the volume of her breasts had previously filled a C-cup bra, the volume of her breasts did not fill an A-cup sized bra. As a result, she said that she had experienced a loss of self-confidence. Those events led her to undertake some internet research to seek out breast augmentation surgery aimed at regaining some breast volume and to achieve something of her former general proportions. She felt that she had lost self-confidence in her appearance and she no longer felt confident when wearing certain clothing and swimwear. She also felt that her intimate relationship with her partner had suffered as a result of those perceptions.
The plaintiff undertook a Google search which led her to the defendant's website where he was described as a plastic surgeon. The defendant's website also had video and other advertising material that gave the plaintiff the impression that he was a qualified plastic surgeon with suitable skill and experience in breast augmentation surgery. She had no reason to think otherwise. She obtained a quotation from the defendant for breast augmentation surgery. That quotation was $5,000 less than what was apparently being quoted by other plastic surgeons. There was no examination or assessment beforehand. The plaintiff felt that this lesser cost justified her travelling from her home in Victoria to NSW to have her breast augmentation surgery performed by the defendant.

Breast augmentation surgery on 30 October 2014

After some telephone conversations between the plaintiff and the defendant's staff concerning the proposed procedure, on 24 October 2014, the plaintiff made a booking for the breast augmentation procedure to be performed on 30 October 2014. On an uncertain date, at the defendant's request, an associate of the defendant, a Dr Eros, took some measurements and photographs of the plaintiff's breasts, and forwarded them to the defendant: Affidavit, Annexure 1, pp 14-15. The plaintiff then travelled to Penrith, NSW.
On 30 October 2014, on the morning of the procedure, she met the defendant for the first time. At that time he discussed the details of the proposed surgery with her.
On that occasion, based on her research, the plaintiff had requested of the defendant that the proposed breast implants be inserted below her pectoral muscles for a more natural looking outcome and to lessen the chances of adverse effects from sub-cutaneous capsular hardening around the implant. The defendant, who had persuaded the plaintiff he knew what he was doing, dissuaded her from pursuing her preferred option, and instead convinced her to have the implants inserted above the pectoral muscle, explaining that technique would involve less risk of capsular hardening around the implant.
On the morning the procedure was performed, the plaintiff was gowned for the surgery in an ante room of the defendant's house where she had observed that sheets had been draped over old armchairs. She was then taken into a small room nearby and placed on a long bench-like table located under a surgical lamp. She was given an intravenous sedative and the defendant then commenced the procedure with the aid of an assistant who was not an anaesthetist.
Soon after the procedure commenced, the plaintiff interrupted the operation and made it known to the defendant that she felt pain during the defendant's surgical incisions. She was then further sedated. Afterwards, whilst still feeling the effects of the sedation, the plaintiff was assisted to sit up, at which time she was shown a mirror and asked if she was satisfied with the appearance of her implanted breasts. She said that at that time she felt sick at the sight of the incisions. After the surgical wounds were dressed, the plaintiff rested for about an hour whilst within the defendant's premises, and she was then released into the care of her partner. They travelled back to Victoria two days later.

Post-operative complications

At home, the plaintiff strictly followed the post-operative guidelines given to her by the defendant for her surgical after care. In the days that followed she felt an increasing sense of tightness in her breasts.
One week post-operatively, on the morning of 6 November 2014, the plaintiff felt a popping sensation at the base of her left breast. On closer inspection, she saw that there was bleeding in that area. With the aid of a mirror she could see that the surgical incision in that breast had split open along an extensive split line as shown in a photograph she then obtained: Affidavit, Annexure 2, p 20.
The plaintiff then telephoned the defendant to report that development. He told her to leave the wound to heal by itself. She was concerned about that suggestion. She therefore contacted her local medical practitioner who, on examination, saw that the left breast implant had become exposed. He considered the plaintiff had incurred an infection. He prescribed antibiotics and medication for pain relief. Over a series of consultations he also attended to changes of dressings.

First remedial surgery - 21 November 2014

On 21 November 2014, the plaintiff travelled to Penrith to see the defendant in his rooms. She was gowned and placed onto a metal trolley which was covered with a blue sheet without any underlying padding. She was provided with headphones and local anaesthetic. She could feel the defendant open her left breast incision further, take out her left implant, then re-insert it, and then re-suture the incision. The plaintiff felt scared in those events.
The plaintiff then returned to Victoria. Her local medical practitioner provided her with post-operative care and removed the surgical sutures about two weeks later.
Between December 2014 and January 2015, the plaintiff was not exercising or undertaking any strenuous activity. In that time, she did not experience any breast problems.
However, in late January 2015, she became aware of a hardening and a slight raised appearance and some reddening in her left breast. She also became aware of constant, stabbing-like pain in her left breast in the area of the implant. The plaintiff experienced discomfort and capsular contraction in her left breast.
The plaintiff again contacted the defendant, who suggested she have an ultrasound study, which was performed in late February 2015. In the intervening period, the plaintiff continued to experience constant, excruciating pain and redness in her left breast. These problems became exacerbated when she made certain movements. Her left breast had become infected and swollen: Affidavit, Annexure 4, pp 27-29. At that time, she became unable to care for her two children who were then aged 6 and 4 years.

Second remedial surgery - 14 April 2015

In early April 2015, the plaintiff called the defendant's rooms on multiple occasions to try to speak to him about the problems she was experiencing with her left breast, including her excruciating pain. No-one on behalf of the defendant returned her calls. In those circumstances, she saw her local medical practitioner who referred her to a local plastic surgeon, who advised that she should have an immediate surgical removal of the left breast implant.
On 14 April 2015, when she attended her local hospital for a preparatory intravenous antibiotic infusion, the attending surgeon at that time told her she needed to have the implant removed urgently because of infection. She had that surgery immediately. Thereafter, she was discharged from hospital after two days with instructions to take a seven day course of oral antibiotics, and she did so.
The plaintiff stated that between April and October 2015, her breasts had an asymmetric appearance in that the right breast was a C-cup size whereas her left breast had less volume than an A-cup size. She felt constantly humiliated and distressed by those appearances. She felt embarrassed and she was reluctant to leave the house because of the uneven appearance of her chest.
After the remedial surgical wound had healed she made inquiries of the defendant to have the uneven appearance of her breasts remedied. At the time she felt a sense of injustice and she felt the defendant had caused her this difficulty and that he should therefore fix the problem. In those circumstances, the defendant agreed to re-operate to replace the plaintiff's left implant free of further charge.

Third remedial surgery - 23 October 2015

On 23 October 2015, the plaintiff again attended at the defendant's rooms in Penrith and he performed an implant procedure on her left breast whilst the plaintiff was under intravenous sedation. At the end of that procedure the plaintiff was woken, helped to sit up and she was asked whether she was happy with the new implant. She then rested for an hour or so before being discharged to the care of her partner. She then returned home to Victoria with her partner two days later.
In the post-operative period, after again strictly following the post-operative guidelines of rest and minimal activity, the plaintiff began to notice that after about 6 weeks of post-operative healing, her breasts were of an uneven appearance. This included an abnormality where one of her nipples was higher than the other and was facing in a different direction. She noticed that she had been left with unevenly shaped breasts, with further scarring above the infra-mammary fold from the first surgery, as seen in the photograph taken in November 2015: Affidavit, Annexure 9.
The plaintiff felt that those circumstances represented a further and devastating blow to her self-confidence and self-esteem. This was further exacerbated by the development of what was described as a "double-bubble" deformity of her left breast, as shown in the photograph taken at that time: Affidavit, Annexure 10. These problems were having a significantly adverse impact upon the plaintiff's relationship with her partner.

Fourth remedial surgery - 22 November 2016

In August 2016, the plaintiff again consulted a local plastic surgeon. He considered that her breast implant issues were complex. He therefore referred her to Dr Hamish Farrow, a tertiary consultant plastic and reconstructive surgeon. In the surrounding circumstances, those events were having an adverse impact upon the plaintiff's relationship with her partner. This resulted in a separation.
When the plaintiff consulted Dr Farrow she became distraught at learning that the initial operation she had requested the defendant to perform, and which the defendant had dissuaded her from having, had been the more appropriate one for her circumstances. Dr Farrow recommended to the plaintiff that she have both implants removed and replaced with new implants. She accepted that recommendation. The plaintiff said that at that time she felt she had been betrayed by the defendant. She displayed manifest upset when describing those circumstances in her oral evidence.
On 22 November 2016, under general anaesthesia, Dr Farrow carried out the recommended bilateral implant removal and replacement procedure to try and restore a more normal symmetry and breast appearance in the hope this would also serve to restore the plaintiff's self-confidence. In the healing phase the plaintiff's breasts looked symmetrical but after about 6 weeks the right breast began to sit a little lower than the left breast due to the advent of scar tissue: Affidavit, Annexure 13.

Medico-legal opinion obtained by plaintiff

On 13 November 2017, at the request of her solicitor, the plaintiff was examined by Dr Murray Stapleton, a consultant plastic and reconstructive surgeon. Following that assessment, he prepared an expert report and attached relevant explanatory photographs: Affidavit, Annexure 12, pp 39-49.
Dr Stapleton's opinion was critical of Dr Blackstock for the unprofessional manner in which he undertook the surgery, not having qualified as a surgeon. He was of the opinion that the defendant's treatment of the plaintiff was unacceptable, unprofessional and incompetently performed. He was also critical of Dr Blackstock having carried out the operation without an anaesthetist, in a house, and giving anaesthetic to the patient himself, and for incompetently managing the resultant complications. Overall, his opinion was that the treatment and the management "could only be described as unacceptable practice": Affidavit, Annexure 12, pp 39-44.
The compelling conclusion is that but for the unprofessional and incompetent treatment provided to her by the defendant, the plaintiff would not have encountered the complications that occurred at the hands of an unqualified surgeon. I find that if the plaintiff had been told by the defendant that he was going to provide the described treatment without having suitable qualifications, training and experience, it would have been most improbable that the plaintiff would have submitted herself to any such operation at the hands of the defendant: s 5D(1)(a) and (b) of the CL Act.

Disabilities that remain

In 2017 the plaintiff formed a new relationship from which her third child was born on 25 October 2018.
The plaintiff still experiences significant difficulty and embarrassment, including with intimacy, over the appearance of her breasts, although over the course of time she has come to be more accepting of the appearance.
The plaintiff has been left with more extensive surgical scarring due to the need for successive bouts of remedial surgery. She continues to experience pain and discomfort in her left breast, which now has an area of flattened appearance in the inner aspect, and is asymmetrical. The events which have led to those problems have caused the plaintiff to suffer considerable psychological distress and physical trauma.
The practical sequelae of the plaintiff's injuries include difficulty wearing a bra, difficulty lifting and difficulty performing a range of previously unrestricted domestic tasks. The plaintiff needs to take analgesic medication to seek relief of her physical pain. Her sleep has become disturbed. She finds certain sleeping positions uncomfortable due to her altered breast architecture. Her ability to pursue pre-incident social, recreational and sporting activities, and normal work activities, are now diminished.
As a consequence of those matters, the plaintiff has suffered and continues to suffer significant anxiety and depression.

Work and domestic effects

Whilst the plaintiff's disabilities have undoubtedly caused her difficulty with her domestic tasks and with regard to her ability to pursue remunerative employment, no monetary claims are made concerning those matters.

Assessment of damages

The plaintiff's out-of-pocket expenses have been identified in the amount of $14,170.25.
With regard to the plaintiff's claim for damages for non-economic loss for her pain, suffering, scarring, altered cosmetic appearance, and loss of amenity and enjoyment of life, I accept the submission made on her behalf that damages pursuant to s 16 of the CL Act should be assessed at 32 per cent of a most extreme case.
In my view, having regard to the plaintiff's debilitating experiences that occurred in the course of the avoidable complications she incurred following the surgery of which she complains, also taking into account the physical scarring, the altered appearance of her breasts and the adverse physical and psychological consequences that followed as already described, the statutory comparator of 32 per cent of a most extreme case is a fair and reasonable assessment.
The monetary equivalent of 32 per cent of a most extreme case is $191,500.
The assessment of the plaintiff's total damages is therefore $204,607.50.

Disposition

The plaintiff is entitled to a judgment for a damages award of $204,607.50 and she should have a verdict and judgment in her favour for that amount.

Costs

As the plaintiff has succeeded in obtaining a judgment in her favour, she should also have an order that the defendant should pay her costs of the proceedings on the ordinary basis.

Orders

I make the following orders: 1. Verdict and judgment for the plaintiff in the amount of $204,607.50; 2. The defendant is to pay the plaintiff's costs on the ordinary basis unless otherwise ordered 3. The exhibits may be returned; 4. Liberty to apply on 7 days notice if further or other orders are required.

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: 05 April 2019

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