Wallace v Ramsay Health Care Ltd [2010] NSWSC 518 | Case summary

Wallace v Ramsay Health Care Ltd [2010] NSWSC 518 | Case summary | Zoe

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JUDGMENT 1 HIS HONOUR: Dr Kam, the second defendant, is a neurosurgeon. On 22 November 2004 he performed a posterior lumbar interbody fusion on the plaintiff. The operation lasted over six hours. The plaintiff alleges that he is now an incomplete paraplegic and that this was caused by the negligence of the defendant. Despite the fact that earlier versions of the statement of claim alleged that the operation was performed negligently, and that it should not have been performed at all, these allegations have since been abandoned. The plaintiff's case is now entirely restricted to a complaint that Dr Kam failed properly to warn him that the procedure was attended by a number of risks associated with the possibility of adverse consequences. These are referred to in more detail below. 2 In the result, three general issues remain for determination. First, did Dr Kam breach his duty to the plaintiff by failing to give a proper warning of the risks of the surgery he performed? (The breach issue). Secondly, did the plaintiff suffer harm in the circumstances? (The injury issue). Thirdly, if he did, was that harm caused by Dr Kam's negligence? (The causation issue). 3 The parties are agreed that, in the event that the plaintiff becomes entitled to a verdict against Dr Kam, his damages are to be calculated at $350,000. There is also an agreement that Dr Kam will pay the plaintiff's costs in those circumstances. The proceedings against the first defendant have been discontinued. Background 4 The plaintiff was born in 1947 and is now almost 63 years of age. He is married with two adult children. His wife is in full time employment. He completed his secondary education in India. He came to Australia in 1980. He most recently followed employment as an insurance loss assessor and investigator. In the course of carrying heavy equipment in that role he developed a back condition, which led him to the surgery ultimately performed by Dr Kam in November 2004. 5 The plaintiff's back pain worsened at the end of 2003 and into 2004. He sought medical treatment. He was subjected to procedures including a lumbar block, a bone scan, epidural anaesthesia, an MRI and CT scans. He consulted various specialists including Dr Diwan at St George Private Hospital and Dr Charles New at Wahroonga, as well as Dr Kam. He was diagnosed with an intervertebral disc protrusion in his lumbar spine. 6 The plaintiff recalled that he saw Dr Kam two or three times in 2004. On the second occasion the pain was getting worse and he said that Dr Kam told him to lose weight. He said Dr Kam suggested he should reduce his weight to 100 kilograms. He said that by that stage he "was desperate for some relief as [he] could hardly walk". He went on a crash diet, stopped drinking alcohol and went from 124 kilograms to 110 kilograms over about three months. He said that, contrary to what he had been told, the reduction in his weight did not produce a corresponding ease in the severity of his pain. 7 Dr Kam went overseas in September 2004. The plaintiff saw him again on 5 October 2004. He was then still in severe pain. Dr Kam recommended surgery immediately. The plaintiff said Dr Kam told him that if he did not have surgery he would end up in a wheelchair, become incontinent and lose control of his bowels. The plaintiff said that that "really scared the hell out of [him]". The plaintiff said that "because [he] was in so much pain", Dr Kam arranged for him to undergo surgery on 22 November 2004. 8 The plaintiff said that he recalls waking up after the operation in extreme pain. Both his legs were paralysed. This was around 10.00pm. He said he was in agony and sedated with morphine. At 10.15pm he underwent what he described as an emergency MRI. He said that before that occurred Dr Kam had told him that, depending on the results, he would be operated on again either that night or first thing the following morning. The operation in fact took place the next morning. The plaintiff said that he remembered waking up in severe pain despite regular doses of morphine. He said that the pain was intolerable and his legs were still paralysed. 9 The plaintiff said that after the operation he could not stand up or lean back. He said, "I basically couldn't do anything at all". He was put on a hard board tilted to about 45 degrees for 10 minutes at a time twice each day as part of his physiotherapeutic treatment. He remained at Westmead Private Hospital for about 10 days and was unable to move very much at all. He said that he could not even sit on a wheelchair. 10 The plaintiff was transferred to St Joseph's Hospital at Auburn on a stretcher bed where he remained from about 16 December 2004 until about 14 February 2005. He underwent intensive physiotherapy but could still not move and had to be lifted in and out of bed using a hoist. He said that the time at St Joseph's was the most demeaning time in his life. He was embarrassed and mortified. He could not move his legs and was in constant pain. 11 In his 8 August 2008 statement the plaintiff said that his physical condition had not improved and was actually becoming worse. He described his back pain as "absolute agony". The pain radiated down his legs. His thighs and legs were numb. His left leg stiffened and occasionally cramped when he tried to walk. He could not sit still for long "because after a while it feels like [he is] sitting on a pile of stones or rocks". He said that his muscles became so stiff that he was required constantly to change position. He said that he could not walk without the assistance of a walking frame. The plaintiff said that for approximately six months following the operation he was literally confined to bed and gradually forced himself to mobilise until he was finally able to use the walking frame. The statutory framework 12 A number of sections of the Civil Liability Act 2002 are relevant in varying degrees to the present inquiry. They are as follows: " 5B General principles

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In the event you need to proceed to surgery, I recommend a posterior lumbar interbody fusion and pedicle screw fixation of the L4-5 and L5-S1 level." 30 When consulted on 25 May 2004 the plaintiff told Dr Kam that he had lost five kilograms but still had a lot of pain in his back and legs. Dr Kam recalled telling the plaintiff the following things: "You still need to continue on your weight loss program and lose more weight. Any operation should be deferred for the moment because of your weight. If you lose more weight, there is a good chance that your pain will improve enough that you could avoid any surgery. If there is still no improvement in pain after your weight loss, then you will be a candidate for surgery. You should aim for a weight of at least 100 kilograms before we attempt any surgery." 31 Dr Kam next saw the plaintiff on 5 October 2004. The plaintiff described his condition and said that his pain was really bad and that he had not been able to leave the house or get out of bed to go to the kitchen. Dr Kam did not weigh the plaintiff at that time but recalls that the plaintiff had put on weight due to his immobility. Dr Kam said words to the following effect: "On account of the levels of pain you've described and the escalation of your back and leg pain, and your inability to mobilise around your house to get from your bedroom to your kitchen, we should consider proceeding with the surgery despite the fact you haven't lost enough weight yet. As discussed before, the surgery will involve a posterior lumbar interbody fusion … to be performed at Westmead Private Hospital." 32 At paragraph 29 of his statement Dr Kam dealt with what according to his usual practice he considered he would have said to the plaintiff at this time. That paragraph is as follows: "29. As at October 2004, it was my usual practice to use words similar to the following in effect when discussing the risks and providing warnings in relation to the performance of a L4-5 and L5-S1 posterior lumbar interbody fusion and pedicle screw fixation on an obese patient:

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Even if the surgery goes smoothly and uneventfully, there is a chance that your back pain will not be resolved and will still be ongoing. In your case, I would estimate the probability of a successful outcome, being a significant decrease in your pain, to be about 70%'." 33 Dr Kam said that he then answered questions that the plaintiff and his wife had about the surgery. The plaintiff then told Dr Kam that he wanted to proceed with the operation. 34 Dr Kam agreed in cross-examination that if a patient is overweight it adds to the risks of surgery. He also knew that Drs Diwan and New had wanted the plaintiff to lose weight. He agreed that the plaintiff's operation time was extended because of his excessive weight and that in such circumstances, pressure is placed on the femoral nerves for much longer. He also agreed that the risk that there can be impairment to those nerves increases substantially in a six-hour operation compared to a four hour operation. This is because the pressure that may be exerted upon the nerves is applied over a longer period, not because the actual pressure is greater. However, greater pressure may be exerted upon the nerves if the patient is heavier. The plaintiff's submissions 35 The plaintiff contended that Dr Kam's warning was inadequate or insufficient to the extent that it neither warned of particular dangers associated with the plaintiff's weight, including especially the fact that the operation time would be extended because of it, nor of the chances of a catastrophic outcome. The plaintiff contended that his assessment of the risks of the operation could only be made with the benefit of information that included all of the risks associated with it. He put his case upon the basis that the scope and content of the warning were indivisible so that a failure to warn him of the possibilities concerning bilateral femoral neurapraxia could not be distinguished from, or diminished in importance when compared to, a failure or failures to warn him of far more significant adverse consequences such as paralysis or something similar. He emphasised that the notion of informed consent meant that there was no relevant adverse outcome that Dr Kam could responsibly fail to mention. In particular, the plaintiff submitted that this applied to all of the inherent risks of the operation, or those that could not necessarily be avoided even by the exercise of reasonable care and skill. Significantly, bilateral femoral neurapraxia was one of these. The plaintiff contended that he should have been, but was not, warned that his condition following the surgery could be worse than if he had had no surgery at all. Dr Kam's submissions 36 Dr Kam submitted that he gave his standard or usual warning to the plaintiff and that it was adequate in the circumstances. He contended, in effect, that even if he had not warned in terms of the possibility that the plaintiff could be worse, that concept or notion was nevertheless inherent in at least some of the serious adverse consequences of which he said he did warn. He agreed that he had not warned the plaintiff of the risk of bilateral femoral neurapraxia, but conceded that he should have. He submitted that applying s 5B(1)(c) of the Civil Liability Act, a reasonable person in Dr Kam's position would not have taken the precaution of administering the warning for which the plaintiff contended, having regard to the fact that the probability of harm was low and the likely seriousness of the harm was minimal: s 5B(2)(a) and (b). He submitted that it was "difficult to suggest that a patient in Mr Wallace's position would have attached significance to the risk". Credit 37 It will be apparent that there is a dispute between the plaintiff and Dr Kam about the nature and extent of the warning that was given. Mrs Wallace also gave evidence about this. In my assessment the plaintiff gave his evidence clearly and apparently truthfully. There was no attack upon his credit in any event. There was also no challenge to the truthfulness of Mrs Wallace. Dr Kam's version of what he told the plaintiff was challenged. He did however concede that he did not give, but should have given, a warning about the risk of bilateral femoral neurapraxia or local nerve damage. In the context of this case, that concession cast the balance of his evidence in a favourable light. To the extent that it is necessary to do so, however, I find that Dr Kam did not also warn the plaintiff of the risk that he could be left with weakness in either or both of his legs. The plaintiff denied that he had been warned of this risk. Mrs Wallace could not remember such a warning having been given. Dr Kam was not unreasonably forced to resort to what in his professional practice he considered or believed he would have said, rather than to an actual recollection about it. In the end result, the dispute is not significant because there is no controversy about Dr Kam's failure to warn the plaintiff of what in the events that have occurred has emerged as the only relevant warning and the plaintiff did not end up in a condition that was worse than he was before the operation. These concepts are also discussed in some detail below, in the context of the issue of causation. Consideration 38 Mr Sears and Mr Weaver are surgeons who were retained by Dr Kam and the plaintiff respectively to provide expert opinions and a joint report. This is referred to more fully later in these reasons. They gave concurrent evidence and were asked, among many other things, about whether or not they warned patients of the risk of neurapraxia. Their evidence was as follows: "HIS HONOUR: In either of your clinical and surgical practices do you give warnings to prospective surgical candidates of the side effects from neurapraxia?

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'In my view the question whether or not the omission to warn constitutes a breach of the doctor's duty of care towards his patient is to be determined not exclusively by reference to the current state of responsible and competent professional opinion and practice at the time, though both are, of course, relevant considerations, but by the court's view as to whether the doctor in advising his patient gave the consideration which the law requires him to give to the right of the patient to make up her own mind in the light of the relevant information whether or not she will accept the treatment which he proposes.' (emphasis added)" 46 Sections 5O and 5P of the Civil Liability Act are relevant. Although their role and importance are not in contest, they were referred to by the Court of Appeal in Ambulance Service of NSW v Worley [2006] NSWCA 102 at [39] as follows: "[39] At least in relation to New South Wales, the reference to the statutory imposition of the Bolam test, or at least a variety of it, is contained in ss 5O and 5P of the Civil Liability Act 2002 (NSW). Those provisions maintain the dichotomy suggested in Rogers between a breach of duty to give a warning or other information, and other forms of professional negligence: the Bolam principle (in its statutory form) applies only to the latter. The Civil Liability Act does not, it should be noted, apply to the present case. However, the broader point made by McHugh J as to the nature of the exercise to be undertaken by the Court in assessing negligence by other professionals, is relevant." 47 What are the facts and circumstances, the possibility of the occurrence of which constitutes the relevant risk in this case? The risk was an inherent risk of the procedure. Moreover, it was a significant risk in this case because of the plaintiff's weight. This increased both the likelihood of the occurrence of bilateral femoral neurapraxia at all, as well as the extent and degree to which it might affect the plaintiff if it did occur. A warning tailored to an obese patient, such as the plaintiff, who was not only likely but probably certain to be in a prone operating posture for in excess of six hours, should have incorporated a reference to this condition and its potential to result from the surgery as an unavoidable risk. The relevant risk is the possibility that the proposed surgery in these circumstances may result in the neurapraxia that in fact occurred. 48 Was the risk material? This requires an answer to two further questions. Would a reasonable person in the plaintiff's position, if warned of the risk, have been likely to attach significance to it? Could it be said that Dr Kam was or should reasonably have been aware that the plaintiff, if warned of the risk of bilateral femoral neurapraxia, or its associated symptoms or consequences, would have been likely to attach significance to it? I consider that both questions should be answered yes. 49 It is not the same thing to say that, if the plaintiff had been warned of the risk but would nonetheless have proceeded to have the surgery, the risk was therefore not material. In other words, the decision that a particular patient may take when warned of the risk is not necessarily coextensive with or conclusive of a determination of the materiality of that risk. A particular material risk may persuade some prospective surgical candidates to proceed to surgery and take the risk, whilst others faced with the identical risk may not be prepared to do so. The inquiry at the breach stage is informed by the question of whether or not a reasonable patient in the position of the plaintiff would attach significance to the risk, not whether a reasonable patient in the position of the plaintiff would attach significance to the fact that the risk came home. A reasonable person in the position of the plaintiff would have been housebound and bedridden due to a combination of back pain and obesity for many weeks in the period leading up to the contemplated surgery. The prospect of any further, even if only but not necessarily temporary or transitory, interference with his mobility, would in my opinion be something to which he would in the circumstances of this particular case be likely to attach significance. 50 Dr Kam himself conceded that his usual practice in dealing with a morbidly obese man such as the plaintiff should have included a specific warning about the risks of local nerve damage by virtue of the prolonged operating position involved. This concession was in one sense no more and no less than a reasonable and proper recognition of the need to tailor the preoperative explanation to a patient, as opposed to the giving of a general warning, in the way recommended by Mr Sears and accepted by Mr Weaver. A person in the position of this plaintiff arguably approached the prospect of a posterior lumbar interbody fusion with a background that set him apart to a certain extent from the first time surgical candidate with no distinguishing idiosyncrasies. Dr Kam should in my opinion have formulated a warning of the risks confronting the plaintiff with an appreciation or at least an expectation that the possibility of local nerve damage with its associated symptoms or consequences was something to which he would be likely to attach significance. 51 In my opinion the plaintiff should have been warned of the potential risk of local nerve damage and/or of its associated symptoms or consequences. The failure by Dr Kam to do so in the circumstances of this case amounted to a breach of his duty to the plaintiff. I do not consider that a reasonable person in Dr Kam's position would not have taken the precaution of warning of the risk, even having regard to the probability of the harm of which Mr Sears and Mr Weaver both spoke. Because of the complex multifactorial condition or co-morbidities of the plaintiff, the likely seriousness of the harm was not necessarily minimal, even though it ultimately, but irrelevantly for present purposes, turned out to be so. The injury issue 52 Mr Hugh Weaver and Mr William Sears produced a joint report dated 14 May 2010 following a conference between them on that day. Mr Weaver is an orthopaedic specialist retained by the plaintiff. Mr Sears is a spinal neurosurgeon retained by Dr Kam. By reason of the way in which the issues in the plaintiff's case have become limited, much of the opinions expressed in the joint report are now not critical to the outcome in this case. However, to the extent that the joint opinion informs any of the remaining issues, it consists in the following series of questions and answers: 1. Was it reasonable to recommend surgery on 5 October 2004 given the symptomatology complained of by the plaintiff?

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WITNESS SEARS: I would agree with that." 64 However, Mr Weaver and Mr Sears were in complete agreement that there was no evidence to support the continued presence of bilateral femoral neurapraxia by 3 June 2005 upon which date Dr Dowla reported once again. His conclusion at that time was as follows: "The study shows further improvement of the interference pattern bilaterally but they are still reduced as shown in the previous EMG. There was certainly no evidence of active or chronic partial denervation. This is reassuring." 65 Mr Sears and Mr Weaver were both in agreement that they had not seen anything indicating permanent damage. 66 In my opinion, the answer to the question posed by the injury issue is yes. I consider on the balance of probabilities that the plaintiff sustained bilateral femoral neurapraxia following the first operation. It may not have been life threatening, it did not persist for very long and it was certainly not permanent, but whatever may have ailed the plaintiff before the operation, he certainly did not suffer from this condition. The neurapraxia only manifested itself when the plaintiff regained consciousness following the operation. There is expert agreement that lying in a prone position for the six hours or more that it took to perform the operation quite evidently caused it. 67 Furthermore, the second operation was a consequence of the first operation and was damage or harm caused to the plaintiff in the sense contemplated by the authorities and the Civil Liability Act. Dr Kam did not contend otherwise. Indeed, even though the original surgery was performed in a technical sense without fault, the post-operative condition of the plaintiff necessitated further surgery at the site of the original surgical wound. This was in large measure due to the fact that the plaintiff's post-operative signs and symptoms, analysed with the benefit of objective studies, did not adequately permit a definitive diagnosis to be made. In those circumstances, a second operative procedure presented itself as the only method to confine and explain the plaintiff's condition and to guide the course of his post-operative care thereafter. 68 Nor can it be said that bilateral femoral neurapraxia, or a second operation, either taken alone or taken together, are harm that could only be described as de minimus. Dr Kam sought to argue that it could. The latter issue has emerged with an unusual significance in this case having regard to the fact that the damages have been agreed and that I can have no part to play in their calculation or assessment if the plaintiff becomes entitled to a verdict. The plaintiff does not, on ordinary principles, become entitled to the agreed damages unless and until he proves all of the necessary elements of his cause of action. In the present case it is clear or at least arguable on the evidence that the bilateral femoral neurapraxia actually sustained by the plaintiff was not as significant as it might have at one time appeared. In the events that have occurred, and in the light of the evidence as it has unfolded, particularly the joint opinion of the experts, the agreed damages are on one view disproportionate to the plaintiff's actual loss. For this reason in particular the defendant has argued, and the plaintiff has contested, that the plaintiff has not proved that he has sustained any loss that is sufficient to consummate his cause of action. 69 It will be apparent that I consider that the plaintiff has established that he suffered harm as a consequence of the operation that is sufficiently serious to complete his cause of action. To adopt the terminology utilised by counsel in this case, the plaintiff suffered harm that was not simply de minimus. I consider that the bilateral femoral neurapraxia by itself was sufficient for this purpose. The added element of the second operation puts the matter beyond doubt. The causation issue 70 This issue falls to be determined having regard to answers to the following questions:

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[84] At the second level, there must be a causal connection, in the legal sense, between the failure to warn of the material risk and the occurrence of the injury. Cases involving a failure to warn of a risk encounter difficulties of causation that do not arise in cases of, for example, a negligent physical act "causing" injury. The failure to warn the patient of the risk can never amount in the same sense to the cause of the injury. Moreover, the issue of failure to warn usually arises when the performance of the physical cause of the injury was not negligent. Indeed, the present is such a case, given the finding that the appellant conducted both operations upon the respondent with the required skill and care." 81 This is re-emphasised by his Honour at [86] in these terms: "[86] In this case the purpose of the relevant rule is that stated in par (vi) of the extracts from the joint judgment in Rogers which have been set out above. This imposes an obligation upon medical practitioners adequately to warn their patients of the consequences of the treatment they are contemplating. If the medical practitioner should fail to warn the patient of a particular consequence and that consequence in fact eventuates then, subject to the question of materiality, the rule seeks to hold the medical practitioner liable for that consequence." (emphasis added) 82 A determination of whether or not the plaintiff would have gone ahead with the surgery if adequately warned requires a consideration of what he was told and what he was not told but should have been. When that exercise is performed in this case it is apparent that there are few differences between what the plaintiff says and what Dr Kam says, and only one difference between them with any potential significance. 83 The plaintiff could not remember whether Dr Kam told him that there was a risk that he could have an injury to his nerve roots. Dr Kam said that that was part of the warning he gave in such cases as part of his usual or standard practice. The plaintiff denied that he had been told that he could be left with weakness in either or both of his legs. Dr Kam's standard warning included a reference to this. They were also in disagreement about whether Dr Kam warned of spinal cord injury, which could affect both of the plaintiff's legs. The plaintiff emphatically denied that he was warned of the possibility of bladder or bowel incontinence. He said in fact that Dr Kam only mentioned that as a possible consequence of not having the surgery. Dr Kam's standard practice was to warn of these possible complications. The plaintiff denied that he was warned that he was subject to a greater risk of infection because of his weight or that there could be a failure of the hardware. Dr Kam said otherwise. The plaintiff could not remember whether Dr Kam warned him that the screws could loosen or fracture. The plaintiff could not remember whether Dr Kam had told him that there could be no guarantees. 84 The plaintiff agreed that he had been told that there was approximately a 70 to 75 per cent chance of the operation being successful and a 25 to 30 per cent chance that the surgery would be unsuccessful. He complained that he was led to understand that the concept of a 25 to 30 per cent unsuccessful outcome was coextensive with an outcome in which he was not better but was not worse than before the operation. He argued that the operation in fact left him in a worse condition and that if he had been warned of the risk of that possibility he would have declined the operation. 85 In my opinion this contention is without any relevant content. This is for at least two reasons. First, in my opinion the plaintiff is not worse off than he was before the operation. The condition in which he now finds himself falls squarely within the plaintiff's own preoperative understanding of the 25 to 30 per cent chance that the operation would be unsuccessful. In other words, the risk that the plaintiff might be worse off following the surgery did not as a matter of fact materialise. In this regard it is to be recalled that the plaintiff was preoperatively confined to bed or at least to his home environment. His weight gain was related to this period of impaired mobility for some many weeks. This is to be compared with his current condition, which included his ability to attend court and give evidence, albeit with the aid of a mobile walker. 86 However, critically for present purposes, the plaintiff is not worse off as the result of anything that eventuated from the surgery. The plaintiff's ability to rely upon a contention that he became worse following his operation must be directed to demonstrating a condition that became manifest as a post-operative consequence, and he cannot rely upon the continued disabling condition in which he found himself before the operation. In this case the only post-operative consequence for the plaintiff was the presentation of bilateral femoral neurapraxia. That condition has entirely resolved. The medical information about the plaintiff contained in the tendered material dealing with the period up to the present suggests that the plaintiff is disabled in a complex and serious way but that his condition is a function of a number of factors, none of which is the result of the surgery performed by Dr Kam or the plaintiff's decision to submit to it. The plaintiff's condition at present is the result of the continuation and possible worsening of his still unresolved preoperative co-morbidities to which the various experts have referred. 87 Although it is not a matter that is determinative of any view I have formed in this case, the plaintiff's evidence about this is to some extent contradictory. For example, he contended that he would not have had the surgery if he had been told that the 25 to 30 per cent lack of success figure incorporated the possibility of being worse off. However, he was prepared to agree that it was obvious that if the hardware failed in any way, further surgery would be required. He agreed that he "perfectly well knew" that there could be further surgery if things did not go well. These concessions appear to me to include recognition that a further operation fell within the 25 to 30 per cent assessment. Acceptance of the possibility of the need for a corrective surgical procedure rather suggests to me that there was also an acceptance by the plaintiff that he could have been worse post-operatively than if he wholly declined the surgery. 88 Of the warnings about which there is any dispute, only the warning concerning the possibility that the plaintiff could be left with weakness in either or both of his legs, and which became manifest as bilateral femoral neurapraxia or local nerve damage, can have any present relevance. No other warning, about the giving of which the plaintiff and Dr Kam agree or disagree, is connected to any risk that materialised. In this case the relevance of weakness in either or both of the plaintiff's legs must be understood to be a reference on the plaintiff's case to a temporary or transitory condition. That is because the evidence, to which I have earlier referred, demonstrates that any leg weakness (or similar condition) that afflicted the plaintiff after the operation was of short duration and was not explicable on a neurological basis within days or at best weeks thereafter. It has long since resolved and is not present now. A warning of that injury or consequence, however described, is the only possibly relevant warning for the purpose of deciding whether the plaintiff would have proceeded with the operation. 89 In this respect Mr Sears expressed the following opinion in his report dated 3 June 2010: "… I can see no objective evidence of any permanent damage having been caused by the plaintiff being in the prone position for the performance of the posterior lumbar interbody fusion." 90 Mr Weaver was of the same view, which he set out in his report dated 15 June 2010: "… I note that the assessment of Mr Wallace's problem seems to be that there is no convincing evidence, either from clinical examination or from recent EMG studies, to suggest that he has incurred any actual neurological impairment involving his lower limbs.

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… there seems no evidence to suggest that Mr Wallace has sustained any permanent neurological damage as a consequence of having been obliged to lie in the prone position for a prolonged period during the operation." 91 In my opinion the plaintiff would not have declined the surgery if warned of the possibility of this condition in general or specific terms as a risk of the surgery he was contemplating. This is so in my opinion whether the risk is characterised as a risk of bilateral femoral neurapraxia, local nerve damage, weakness in either or both of his legs or in general terms that he could be left temporarily worse off with a condition fitting these descriptions. This is for the following reasons. 92 As the result of his preoperative condition, as described by him, the plaintiff was desperate for some form of pain relief. He had attended a pain management centre in an effort to try to reduce the pain in his back and legs. He agreed he had had some difficulty attempting to do this. He had tried physiotherapy but this had not helped. He was taking more and more medication with no corresponding benefit. He could only walk with the aid of a walking stick. No conservative measures had worked. Dr New had foreshadowed the need for surgery. The plaintiff was "absolutely fed up with having to take medication". He was in a perpetual (medicated) daze. He told Dr New that the fact of the matter was that he was not getting any better. He felt inadequate and useless. He had severe restrictions in movement. This was a cause of significant stress and anxiety. He had bouts of depression because his future was uncertain. He approached Dr Kam for assistance to try to do something about unremitting pain, because he could barely move. Dr Diwan had told him that surgery might be risky. He agreed Dr Kam had told him the same thing. By the time he saw Dr Kam for the second time "he was desperate for relief". He could hardly walk. He had tried everything and nothing had worked. He had even had suicidal thoughts. To the suggestion that he was in desperate straits, he agreed he was in a lot of pain. The last resort was to undergo surgery. 93 A key to understanding what the plaintiff would have done if warned of the risk that in fact materialised is to compare the plaintiff's condition before the operation with the effects of the bilateral femoral neurapraxia itself. There is in my opinion no comparison at all. In a report dated 26 November 2004 addressed to Dr Kam, Dr Awad referred to the bilateral femoral neurapraxia and indicated that the plaintiff's "power in his legs is slowly improving and he has some anti-gravity movements and he has been slowly mobilised with the physiotherapists". As earlier recorded, Dr Dowla found that by 25 February 2005 the objective neurophysiological evidence did not support the existence of any definite neuropathic abnormality. 94 In my opinion, having regard to his desperate preoperative plight, the plaintiff would not have declined the proposed surgery upon the basis of a possible risk of the condition that he suffered in fact. The prospect for this plaintiff of some mild and temporary interference with power and sensation in his lower limbs is out of all proportion to the disabling and distressing condition from which he hoped Dr Kam's surgery would provide a cure or at least some relief. It is to my mind inconceivable, or at the very least highly unlikely, that the plaintiff would have hesitated for a moment to submit to a procedure which he knew to be attended by all of the risks Dr Kam said he informed him of, as well as the risks of which on my finding he should have been informed, in circumstances in which he was in a desperate search for relief from unremitting pain, when there was a 70 to 75 per cent chance of some relief and when the relevant cost to him may have been a mere temporary loss of power and sensation in his lower limbs of the nature, extent and duration of the condition that materialised. 95 Although, as I have found, the plaintiff would have undergone the surgery even if warned of bilateral femoral neurapraxia or local nerve damage, the plaintiff contended that if he was entitled to be, but was not, warned of some risk that would have led him to decline the surgery, he is legally entitled to complain about the consequences of any risk that eventuates, even if that specific risk would not by itself have led him to do so. In this case that translated to a proposition that if the plaintiff would have declined the surgery if warned of some catastrophic outcome of which he was not warned, but which did not materialise, but would not have declined the surgery if warned of bilateral femoral neurapraxia, which did materialise, he is entitled to succeed because the latter condition was caused by the very fact of an operation he would have declined if properly warned. 96 The only potentially relevant failure to warn in this case was the failure to warn of bilateral femoral neurapraxia, or what is more likely to have been described as local nerve damage. The legal cause of that condition in the plaintiff could never be the failure to warn of some other risk that did not materialise. It is important to bear this in mind because the plaintiff's case and his evidence about this issue was to some extent directed to the alleged significance of failures by Dr Kam to warn him of possible catastrophic consequences associated with known risks of the procedure that he contended would have dissuaded him from proceeding with the surgery if they had been drawn to his attention. However, the passage from Rosenberg v Percival cited above in the judgment of Gummow J makes it clear, if it were not otherwise so, that a failure to warn of a consequence or risk that would, for the sake of the argument, have led the plaintiff to decline the surgery, is not relevantly causative of harm suffered if the surgery proceeds unless that actual risk materialises. Conclusions 97 I find for these reasons that Dr Kam's negligence was not a necessary condition of the occurrence of the harm suffered by the plaintiff. I find that if Dr Kam had not been negligent, the plaintiff would nevertheless have proceeded to undergo the posterior lumbar interbody fusion that Dr Kam performed. In the circumstances, the question of whether or not it is appropriate for the scope of Dr Kam's liability to extend to the harm suffered by the plaintiff does not arise. Decision 98 There will be a verdict for the second defendant with costs.

Wallace v Ramsay Health Care Ltd

At a glance

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Judgment (234 paragraphs)

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Cases Cited (7)

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