Zora v St Vincent's Hospital Sydney Limited

The evidence in the proceedings

1. Lay evidence was given by the plaintiff and, for the defendant, by the two medical practitioners who respectively performed and supervised the procedure. My reasons for rejecting the plaintiff's objection to the giving of any evidence of a medical nature by Dr Michel and Dr Gunalingam (who performed and supervised the procedure respectively) are set out in the section of this judgment concerning their evidence.
2. Expert evidence was given concurrently by Dr Gary Helprin (for the plaintiff) and Associate Professor Mark Adams (for the defendant).

The circumstances of the plaintiff's referral to the Hospital

1. The plaintiff, who was born in 1961, was "a heavy smoker" (report of Associate Professor Adams, Exhibit 1, p 14) with a prior history of raised cholesterol, resulting in atherosclerosis of the coronary arteries (conclave answers 14 - 17, Exhibit 1). He began to develop chest pain during 2014 which was not related to exercise and was stabbing in nature. He had no significant family history of cardiac disease, but given his risk factors (and in particular, his history of smoking), a coronary angiogram was performed to exclude coronary artery disease.
2. The plaintiff was referred to the Hospital for a coronary angiogram via radial access on 24 October 2014 to investigate the right coronary aneurysm which had been diagnosed. This procedure was supervised by Dr Brendan Gunalingam, and the procedure was actually performed by Dr Jonathan Michel, with Dr Pankaj Jain assisting.
3. This procedure required a 5 French TIG catheter to be placed in both the left and the right coronary artery and a dye injected into the artery (conclave answer 1). The known risks of this procedure which are standardly recognised are stroke, myocardial infarction (heart attack), allergy reactions to the contrast agent, damage to blood vessels during their transition as well as at the entry point into the artery, kidney damage and, most relevantly for these proceedings, thrombotic occlusion and dissection of any of the arteries traversed during the procedure, including coronary dissection.
4. The procedure, when performed, demonstrated moderate disease in the left anterior descending coronary artery, as well as the quite significant aneurysm in the right coronary artery, which measured 8mm, as opposed to the normal thickness of 3mm.
5. After Dr Gunalingam checked the film recorded during the procedure and these observations were noted, the plaintiff remained in the Hospital until 3.10pm under observation, after which he was discharged.

The plaintiff's admission to Liverpool Hospital

1. On the day after the procedure (25 October 2014), the plaintiff began to feel chest pains. He asked a friend who had had a heart attack to describe the symptoms and realised he had the same symptoms, so he called an ambulance. On admission, angiography revealed that the right coronary artery was occluded proximal to the 8mm aneurysm. This had the appearance of dissection of the artery with thrombosis. Angioplasty was attempted so that the artery could be reopened but it was not able to be repaired definitively, so the plaintiff underwent urgent bypass surgery that evening.
2. The plaintiff made a good recovery after surgery, although he had a further presentation after discharge with chest pain. The plaintiff was frank in his evidence in cross-examination in admitting that he had continued to smoke after the operation. Whether for this reason, or because of a chest infection (Associate Professor Adams, Exhibit 1, page 15), he had to be hospitalised a second time.

The plaintiff's current condition

1. The plaintiff has undergone urgent bypass surgery from which he has recovered. He no longer experiences chest pain, shortness of breath, dizziness or palpitations, but is very concerned over his cardiac condition. His main current problem is difficulty sleeping, as he wakes up repeatedly during the night and is frightened he will have another heart attack. These fears, rather than physical problems, have limited his ability to work or undertake other physical activities. The defendant points to an asserted absence of treating doctor reports and sought to cross-examine Dr Ben Teoh. As no subpoena had been issued to Dr Teoh (who was overseas and thus unavailable for cross-examination), I refused the defendant's application to exclude his report.

The evidence of Dr Michel and Dr Gunalingam

1. Mr Cranitch SC made a preliminary objection to these witnesses giving evidence about "anything to do with the factual matters of this case [which] must of necessity involve expert opinion" (T 98).
2. Mr Cranitch SC referred to South Western Area Health Service v Richie [1998] NSWCA 213. However, as Priestley JA noted that a ruling to this effect was erroneous and the appeal was dismissed for unrelated reasons (see also Priestley JA's remarks in Australian Capital Health Authority v Moorby [1997] NSWCA 32), this decision is not supportive of the proposition that a medical practitioner cannot give evidence of factual matters.
3. Nor is it necessary for such a medically-qualified witness to prepare an expert report containing the Code of Conduct, even where the defendant is another party, such as the hospital, which is vicariously liable for the medical witness's actions.
4. Although Mr Cranitch SC submitted that there was "little out there in terms of case law which assists and I'm sure my learned friend is not going to argue with me about it", I consider that to deny a defendant in medical negligence proceedings the opportunity to prove factual matters in the manner advocated by Mr Cranitch SC (at T 112 - 114) would be to fall into error, for the reasons explained by Priestley JA in Australian Capital Health Authority v Moorby.
5. Nor do I accept that judges should examine evidence such as the disk of the operation procedure without the benefit of both lay and expert evidence as to what is occurring (Angel v Hawkesbury City Council (2008) Aust Torts Reports 81-955 and Blacktown City Council v Hocking (2008) Aust Torts Reports 81-956). Medical procedures are factually complex and the tribunal of fact must exercise caution in attempting to analyse films and photographs without the benefit of explanation of what is asserted to be happening, not only by the experts, but by the doctor who performed the procedure in question.
6. Dr Michel described the procedure as follows: "Q. Can you explain to the Court what the actual procedure involved. A. Certainly. So the patient is placed onto an x-ray table in a special cath lab room. They have an area on their wrist or in their groin cleaned and then sterile drapes covering them from neck to foot. They have local anaesthetic placed into their wrist or in their groin. We then use a needle to access the blood vessel in the wrist or groin. From there we can pass wires and tubes in the direction of the heart using x-ray guidance from the outside to assess where we are within the body. Q. Just stopping you there, doctor, with Mr Zora, what approach was taken? Was it through the groin or through the wrist? A. We used a radial path, so through the wrist. Q. Which wrist did you proceed through? A. We used the right wrist." (T 106)
7. He next described what was seen on the screen, as the procedure commenced, as follows: "Q. Can you tell the court what the normal measurement of a vessel is for the purposes of the right coronary artery? A. The normal size for a right coronary artery is about 3 to 3 and a half millimetres diameter. Q. Can you recall what Mr Zora's was? A. His was about 8 to 9 millimetres wide at the abnormal part. The rest of the vessel was normal size." (T 104)
8. He described the contents of the DVD for the first run as follows: "Q. Can you explain to the Court what we're seeing there. A. So this is an x-ray image. Anything that x-rays don't go through sharp is black. So on the right side of the screen you can see the spine. In the middle at the top there's a line descending downwards to the left. That's the catheter. It's coming from the right arm. At the very beginning of the run you can probably see there isn't any - well, there's a small amount of dye already in the vessel when the filming starts. Essentially it's difficult to tell where the catheter is until you inject the dye fully and then the whole vessel becomes black. So in the middle parts of the screen is a normal‑looking section of vessel which is thin and smooth and looks like a tube or a black line. At the top there is a bulbous structure, which is the aneurysm. The tip of the catheter can be seen to be clearly within the aneurysm but is more or less roughly aligned with the direction of the vessel." (T 119)
9. Similar explanations were provided for the other three runs (T 119ff). He then described the wire, the tip of the catheter and the pressure monitoring device as follows: "Q. A wire is used - is that correct? - or a catheter. A. We use a wire to reach the heart more or less and then the catheter is passed over the wire, and from that point we use the catheter to find the coronary arteries. Q. Is there something on the tip of the catheter? A. The catheter is just a tube which is pre‑shaped to - it comes in various pre‑shaped angles. There's an opening at the end of the catheter and that's connected - there's a continuous column of fluid or blood back to the outside where we are, which is attached to a pressure monitoring device. Q. The pressure monitoring device, what's the purpose of that? A. The device tells you whether the tip of the catheter is up against the wall of a blood vessel. When in position, it shouldn't be Q. And how does that work? A. So on the screen as soon as the catheter is within the body and the pressure is connected to the catheter, you can see a continuous - blood pressure going up and down with each heart beat. If you put the tip of the catheter against the edge of the wall of a blood vessel, then the trace either disappears completely and becomes a flat line or it becomes abnormal in appearance. We use that to guide us before we inject anything down the catheter. Q. If the trace is abnormal, what do you do? A. You reposition the catheter. Q. All right. A. There are rare cases where you would inject, but that's - this wouldn't be one of those. Q. When you say "eject", by that you mean pulling the catheter out. Is that correct? A. The injection is putting the contrast dye through the catheter. Q. Right. A. It's a basic principle that you see a normal pressure trace before you inject anything through the catheter. Q. Is that consistent with the procedure that you carried out on Mr Zora? A. Yes. Q. The pressure trace - do you check that prior to injecting any contrast? A. Yes. Before every injection we always check pressure trace." (T 121)
10. There was no reference to the need to perform what was called a "test shot" (or any failure to perform one) in the expert evidence or in any of the particulars of negligence. However, Dr Michel's answer to the following question assumed large proportions in the hearing: "Q. In Mr Zora's case, did you carry out a test injection to see where the catheter was? A. I can't recall if we performed a test injection or not. We don't always do it. We use a test injection of a very small amount of contrast to determine whether the tip of the catheter is in the coronary artery or still in the main blood vessel. So the test is not recorded, so it won't be one of the runs that we see today. Q. All right. A. It just tells you if the catheter is in vaguely where you hope it to be. If you're convinced it's in the right place, you don't bother doing it. Q. That's a matter of judgment, is it? A. Yes." (T 107-108)
11. Dr Michel then explained how the procedure seen on the DVD disk was carried out: Q. When you mentioned the runs, the runs are references to images. Is that correct? A. A short movie clip. Q. They're short movies. In regards to Mr Zora, is it the case that the catheter went into the left coronary artery first? Is that right? A. Yes. So my standard practice is to image the left first and then we move onto the right. Q. Can you recall how many runs were done of the left coronary artery? A. Left was approximately four, five runs. It'd be one of the two. Q. Then you proceeded to the right coronary artery. Is that right? A. Yes. Q. Then approximately how many runs were recorded of the right coronary artery? A. Four runs were recorded. Q. The runs - are they in order of time? In other words, they're in the order in which they were done. Is that correct? A. Yes, they are. Q. On the first image of the right coronary artery, when that was seen - the first time that would have been seen or the first image was after some contrast was injected. Is that right? A. The first run - initially you start filming, so you start recording what you can see, generally before you inject any contrast at all. Q. What can you see before the injection of contrast? A. All you can see is the outline of the heart. You can see the bones - outline of bones - and you can see the catheter. You can't tell precisely where your catheter is until you actually inject contrast. Q. When you injected contrast into the right coronary artery for Mr Zora, what did that reveal? A. So the first run revealed that our catheter was relatively deep inside the vessel and the tip of the catheter within the aneurysm." (T 108)
12. Dr Michel described how there were eight runs carried out, four in the left coronary artery and four in the right, for the first three of which the catheter was placed within the aneurysm. The catheter was then replaced for the last run.
13. Dr Michel described how he could see that the catheter was within the aneurysm: "WITNESS: Sorry. When we injected for the first run, we could see that the tip of the catheter was within the aneurysm and - yes, that's what we could see. KETTLE Q. Is that unusual? A. It's not unusual for the tip of the catheter to go relatively far inside the vessel. Ideally it would sit closer to the beginning of the vessel, but that's not always the position that the catheter will naturally sit in. Q. Can the catheter be repositioned? A. It can be rotated and it can be pulled backwards. Q. Can you recall whether that was done in Mr Zora's case? A. I don't remember specifically, but reviewing the images I'm of the opinion that the catheter is pulled back slightly, but we didn't want to dislodge the catheter altogether back into the aorta, because that would mean having to try and place it back in the vessel again and that can be problematic. Q. On the subsequent runs of images, did the catheter remain within the aneurysm? A. In the second and the third runs, the catheter remained within the aneurysm, which changed the angle of the camera in order to assess the aneurysm from different projections. In the final run, we then attempted to pull the catheter back to an optimal position, which was achieved successfully without the catheter falling out altogether, and we were able to do a final image - a final run with the catheter in a perfect position. Q. What about the pressure tracing during that time? A. Pressure tracing was normal throughout this time." (T 109)
14. He said he was able to see some abnormal blood flow, which he did not consider was due to a dissection: "Q. And what did you attribute that abnormal flow to? A. So we - we could see that there was some dye that was still sitting in the area of the aneurysm and I attributed that to pooling of dye at the edge of the aneurysm which I've seen in previous cases before. At the time Mr Zora was symptom free. The location of the dye was not what I would've expected, if we had been suspicious we'd caused a problem, and his ECG tracing remained completely normal which is another way that we monitor for damage to a vessel. Q. Did you form the opinion at all that there was any evidence of a dissection? A. No, I didn't." (T 115)
15. Dr Michel was satisfied that enough images of the procedure had been taken to ensure they had full information (a matter about which he was not cross-examined) and that as he had "obtained enough images to adequately assess the aneurysm and the flow beyond it and, our final image, we were satisfied that we hadn't caused any problem by the initial deep position of the catheter" (T 116).
16. Dr Gunalingam, the supervising doctor, then came in to look at the procedure results while Dr Michel and his assistant were still in their surgical gowns. His role included checking to see if there was a dissection. Dr Michel explained that, if a dissection was evident on the film of the procedure, immediate action would have been taken: "Q. Were you there when he reviewed them? A. Yes, so I - and myself and my registrar colleague were still wearing sterile gowns and Dr Gunalingam came into the control room, reviewed all of the images before advising us that we - to finish off the case. That's his standard procedure. Q. I'm just going to ask you, if you had identified a dissection, what would you have done? A. If there was a clear dissection the first thing I would've done would be to call for Dr Gunalingam who was located in an office a few metres away because it's a serious issue as we clearly have identified. The aim would be to stabilise the dissection and prevent it spreading and causing a - a block in the vessel and causing a heart attack. Q. On your understanding, what would that have involved? A. It would involve putting a wire down the blood vessel and putting a stent into place covering - probably covering from before the aneurysm to after the aneurysm and any other area that the dissection had already spread to." (T 116)
17. The plaintiff was then taken back to the recovery ward. Dr Michel could not recall if he saw the plaintiff, but said it was his normal process. The purpose of the plaintiff remaining was to allow the requisite time to elapse for a dissection or other complication to become apparent.
18. Dr Michel subsequently learned that the plaintiff had had a heart attack the following day. He had telephoned the plaintiff to explain that he had suffered this complication "likely as an unfortunate result of our procedure" (T 117). He said the plaintiff was "understandably quite angry" (T 117) and did not take up the offered opportunity to discuss this.
19. Mr Cranitch SC put to Dr Michel that the catheter's position was not optimal until the fourth run, and that this created a risk: "Q. Doctor, the important thing about positioning the catheter, I take it, is to get it in the right position, the optimal position. A. No, the important thing is to get good images of the artery. Q. But there is an optimal position, is there not? A. Yes. Q. What's that? A. Ideally the tip of the catheter will be sitting just inside the coronary artery, so not too far in. You'll be able to inject and completely fill the vessel with contrast so there's no artefact and the tip of the catheter won't be - will be coaxial with the vessel, which means pointing in the same direction as the vessel. Q. Do I take it the optimal position was reached on run 4. A. Yes. Q. The first three runs, as I understand it, were with the tip of the catheter well into the aneurysm. A. Yes. Q. That presents risks, does it not? A. A coronary angiogram presents risks, yes. Q. But when you have it sitting firmly in an aneurysm, that itself has risks, does it not? A. You can't determine where the catheter tries to sit when you first put it in until you've taken the first picture. So yes, it would be more risky than having the catheter in a perfect position at the beginning, but you can't tell that. Q. Well, if you did a test injection, you would tell straightaway, wouldn't you, with a small amount of dye? A. If the catheter tip is already inside the aneurysm, then it's already too late. Q. But you compound the risks, do you not, but leaving it in there over three of the four runs? A. I would disagree if the catheter is in a suitable position, rather than an optimal position." (T 121)
20. It was also put to him that the catheter was pressing against the artery wall: "Q. You say that you can tell that it's not in contact with the wall of the artery because of this pressure equipment. Is that right? A. That's correct. Q. Is there a record kept of that? A. We do keep snapshots of it, and it's stored on the electronic system of the hospital. I don't know if there would be a complete tracing. I've never had to review an entire case like that before. Q. No. But I take it you have to direct your attention away from the screen that we've been looking at in order to check the pressure tip? A. The two screens are side by side. Q. So you'd have to move from one screen to the other. Is that right? A. I would have to move my eyes a very short distance. Q. Correct. So you'd really have to look at - to make sure that the tip is not against the walls of the artery, or too close, which I take it would have virtually the same effect, Is that correct? That you could either have it right on the walls, or too close to the walls? A. Really the most dangerous situation is if the tip of the catheter is firmly wedged against the wall. Q. Yes, of course. But if you have it close to the wall, that also can increase the risks, can it not? A. It's going to be within a millimetre of the wall wherever you position the catheter. No, I would say no." (T 122)
21. He was asked about the repositioning of the catheter for the fourth run (when it was in the optimal position) and why he had not done this previously: "Q. If there were risks attendant to the catheter being positioned within the aneurysm, that was removed by the fourth run. Is that right? It's no longer in there? A. Yes, but the risk of a dissection is not removed. You still have a coronary artery with a catheter sitting in it. Q. The - it would have been very easy for you to have your registrar reposition the catheter when you realised it was in the aneurysm, if only to avoid artefacts and the like, into the correct position as you did, indeed, on the fourth run? A. We wouldn't have repositioned the catheter to avoid artefacts. There was no artefact to avoid. Q. But the optimal position, as you've agreed, is - where it ended up on the fourth run, there was no reason at all why that couldn't have been done by the second run, is there? A. In retrospect, yes, we could have done this with a catheter in the optimal position after the first run, but we didn't know that the catheter would sit nicely in that position. The only way you can find out if it's going to sit nicely in that position is by pulling it back. If it falls out altogether then you have to put it back into the artery. Pushing a catheter in and out of a coronary artery, especially when it's gone in deep on the first run, that is much more risky. Q. It's only a matter of moving it a few millimetres. A. It is just a few millimetres. Q. That's not difficult, is it? A. My training would suggest it's harder than it looks. Q. I beg your pardon? A. I would suggest that the number of years I've trained to do this means it's probably not that easy. Q. Well, you were the man in charge of the procedure. Presumably it should have been easy to do. A. Yes. The risk of pulling the catheter back and having it fall out of the coronary artery in my mind outweighed the risk of attempting to achieve an optimal position when we already had an adequate position. (T 125)
22. Dr Michel agreed that it was highly likely that the procedure had contributed to the plaintiff's thrombosis the next day: "Q. Well, I take it, as you've said in your evidence, you accept that the procedure contributed to, in a presumably significant way, the ultimate thrombosis. Is that correct? A. I think it's highly likely." (T 125)
23. He was not shown the dissection that Dr Helprin claimed now to be able to see, but cross-examined only in this general way: "Q. It may well be that a dissection, although not immediately apparent to you, had been commenced at the time of your procedure? A. That's correct. Q. There are varying dissections. Some are major, as you say, and you deal with it by stenting it straightaway. Others commence and then develop over a period of time, as may have happened in this case. A. It's very unusual for a dissection during a catheter procedure to not become evident within minutes. Q. Yes, but you're not denying that it's quite possible that a dissection was commenced during the procedure, and then developed into a greater dissection at a later point in time? A. I think it's likely that the event that Mr Zora had the next day was triggered by our procedure. Whether that involves dissection of the aneurysm which progressed later I don't know, because what we do know is that it was blocked with clot. It was clotted up completely. Whether that clot formed at the site of a small dissection and the primary problem the next day was the clot or whether the primary problem was an extension of a small dissection with clot coming after it, I don't know. There's no way to answer that." (T 125-126)
24. Dr Michel was then asked if the hospital had the relevant emergency equipment and whether the plaintiff should have been kept longer in the hospital. That was the extent of his cross-examination.
25. I have set out the relevant extracts from Dr Michel's evidence because it demonstrates that it was never put to him that the dissection Dr Helprin claims to have identified was never identified on the film so that he could comment. Nor was this "dissection" put to Dr Gunalingam, whose job was to check the film of the procedure with problems such as this in mind.

The evidence of Dr Gunalingam

1. Dr Gunalingam, whose role was to oversee the procedure, described what he saw on the film as follows: "Q. Was there anything on those images that caused you any concern? A. No. There was coronary disease present. There was an aneurysm demonstrated within the right coronary artery. There was a little bit of staining at the bottom end of this aneurysm, which was due to contrast hang‑up, and I felt that that was most likely due to the flow characteristics within the actual vessel. Q. What would have changed the flow characteristics, if anything? A. So if you think about an aneurysm as an outpouching of the artery, when you inject dye into that artery the contrast swirls around and it's not a laminar flow. It doesn't go briskly down. And the dye was hanging up in a portion of the artery down the bottom, which was on the opposite side to where the catheter was." (T 129)
2. Dr Gunalingam also explained that an issue for concern by him was that the plaintiff's aneurysm was "large": Q. Did you - as far as you can recall, was there anything that caused you concern about the images? A. His aneurysm was large, and that's why he was originally sent to St Vincents for cardio catheterisation. The original CT scan had demonstrated it to be about 10 millimetres in diameter, which is the sort of image you'd get worried about, but we measured it at 8.3. So we had room to play with. He also had disease in his other arteries. There was disease in the diagonal branch, and within the left anterior ascending artery." (T 130)
3. In cross-examination, it was put to Dr Gunalingam that the catheter was "not in the optimal position": "Q. Doctor, the one thing that is evident from the angiogram is that the placing of the catheter is not in the optimal position. A. Correct. Q. It's well into the aneurysm. A. Correct. Q. Had you been supervising this, I take it you would have withdrawn the catheter a millimetre or two to bring it back to the optimal position? A. Not entirely correct. Sometimes catheters cannot be manoeuvred back because a patient's coronary anatomy is such that the catheter which deeply engages will always deeply engage. If you pull it back, it will always go back in. So you're in a position where you're pulling and pushing a catheter back and forth, which can actually cause more harm. So sometimes you're better off leaving the catheter in a stable position, and in this case smaller catheters were used. So I probably may not have done that. Q. But most certainly leaving it within the aneurysm leads to some increased risk, does it not, of disturbing the structure of the aneurysm? A. Correct. But more damage can occur by moving the catheter back and forth. Q. Well, yes. You'll see in run four - you've reviewed the images? A. Yes, I have. Q. They did in fact get it to the optimal position? A. Yes, but it would have gone back in straightaway afterwards. It doesn't stay in that position all the time. Q. No. A. No. Q. But that was apparently a deliberate attempt to move it backwards by a couple of millimetres. A. Yes. No, I'd been told by Dr Michel that he had tried during the procedure to move it back, but it kept pushing back into the aneurysm. Q. But it did in fact get back into the optimal position at least for one of the runs? A. One of the runs. Correct. Q. There's no suggestion of any movement of the catheter between runs one to three, is there? A. There could have been. Q. It remains in situ? A. No. There could have been. I don't know. I wasn't doing the procedure. I don't know. Q. I want you to assume there's no suggestion by Dr Michel that there was any attempt to reposition it until the last thing. A. Right. Okay. Q. Which would suggest it was ultimately readily done. A. I disagree with that." (T 132-133)
4. As was the case with Dr Michel, Dr Gunalingam was not shown the asserted dissection, but cross-examined in the following general way: "Now, the - you express categorically that because the dye was hanging up on the opposite side, there was no way that this could reflect a dissection? A. Correct. Q. On what do you base that, if I might ask. A. So an iatrogenic dissection, or a dissection caused by the catheter is caused when the catheter abuts against the vessel wall and tears the vessel wall. Which means that the contrast will be hanging up at the point where the catheter is hitting the vessel wall. In this particular case there is no dye at where the vessel wall is abutting against the - there's no dye at where the catheter is abutting against the vessel wall, but on the opposite side. So that's incompatible with a dissection. Q. That's not to say, however, that in positioning the catheter and prior to the injection of dye it might have abutted the wall? A. Yes. Q. Where the, in fact, dye was hanging up? A. No, it couldn't because it was right at the other side. It was right at the bottom, and in order for the catheter to have gone down to the bottom and caused the dissection, the proceduralist would have had to have purposely altered the positioning of the normal catheter, and that would have caused a lot more harm. Q. Is that the only way in which you say a dissection can happen during the course of this procedure? A. Correct. Q. So there's no alternative physiological explanation? A. No. A catheter - the iatrogenic dissection is caused by a catheter disrupting the vessel wall. Q. So you exclude positively, as a result of that, the possibility that the catheterisation itself might have caused the dissection? A. Correct. There was no dissection. Q. Even though you don't know where the catheter was positioned, or what attempts were made to position the catheter prior to the dye run actually commencing? A. No. I mean, we know where the catheter was. The catheter as a pre-defined path for entering the artery, and you can see it from the angiographic images of where it is. We know the shape of the catheter, so we know how it goes. So in order for that particular catheter to cause the staining at the bottom, you would really have to twist it. In order to twist it, you would have caused a lot more harm. Dr Michel didn't twist it because he was‑‑ Q. Well, Dr Michel wasn't performing the procedure, was he? A. He was scrubbed, and he was with Dr Jain. Q. He wasn't performing the procedure, was he? A. He was right there. They were doing it together." (T 134)
5. The closest Mr Cranitch SC came to putting the question to Dr Gunalingam was as follows: "Q. Let us assume that, for whatever reason, this was a dissection‑‑ A. But how could that be? The catheter was nowhere near it. Q. No, it's a hypothetical, doctor." (T 137)
6. Dr Gunalingam went on to explain: "Q. Doctor, what I'm putting to you is a hypothetical. If it was the initiation of a dissection, the dye appearance would be the same. A. Not entirely. The most characteristic appearance of a dissection is a linear streak, not really staining. You can get staining, but more often you'll get a linear streak, and that linear streak, Mr Cranitch, progresses down the artery. Q. And that's of course where you've got a major dissection. A. Yes. Q. A very serious one. A. Correct. Q. You concede, however, the possibility that, if there was a small dissection starting, it might have appeared the same as this dye does. A. With one little caveat. A dissection is a tear in the vessel wall, and the blood flows antegradely. It flows down the artery. So a small tear caused by a catheter means that that dissection will propagate and propagate very rapidly over the next hour or so. It doesn't stay stable for more than a day or so, which is why most dissections become evident at the time or within an hour afterwards. Q. But some dissections a day or so later. A. No, they don't. Q. And that's a never. Is that right? A. That's a never. No. Q. So even if it started as a small intimal tear, for example‑‑ A. Yes, correct. Q. --not a fully blown dissection‑‑ A. Yeah. Q. --you're saying it's not possible it could appear 24 hours later or nearly 24 hours later. A. A small dissection which goes away, that's fine if it seals, but if it's to progress to cause harm, it would progress within a couple of hours. It doesn't suddenly cause harm more than a day later.
7. The plaintiff's case is that the catheter should never have been placed in the aneurysm and it was a simple matter to pull the catheter back to the "optimal position" (written submissions paragraph 10). However, the plaintiff's expert evidence also asserts that there is a visible a dissection caused by the carrying out of the procedure, which procedure was not recognised by either Dr Michel or Dr Gunalingam. The lateness of this evidence and the failure to put this evidence to the doctors who were carrying out this procedure undermines this argument.
8. Dr Gunalingam recalled the plaintiff's progress in recovery as well: "Q. Now, prior to Mr Zora being discharged, was he brought to your attention otherwise after that meeting? A. No. So I met him while on the table, and I also spoke to him again when he was in the recovery bay of the cardiac catheterisation laboratory, but then he was assessed by doctors Jain and Michel four or five hours later in the main recovery ward prior to discharge, and nothing untoward was told. I was - it was passed onto me that he was well, that he had no symptoms, and he was discharged home well." (T 131)
9. Dr Michel had been unable to recall whether he did visit the plaintiff but, in light of Dr Gunalingam's evidence, it is clear that he did, and that "nothing untoward" was noted. This is of relevance because, as the plaintiff's medico-legal expert pointed out, if dissection had occurred, the symptoms appeared very quickly. The principal reason for the plaintiff remaining in the hospital for observation was to monitor him for such symptoms, which did not appear, so he was discharged.

The expert evidence

1. I will first set out a brief summary of the medical reports and conclave and then consider the evidence the experts gave.

Dr Helprin's reports

1. Dr Helprin, the plaintiff's expert, changed his mind in his reports on two occasions. In his initial report of 23 April 2015 he did not consider there had been any major departure from good medical practice (although noting the minutiae of the procedure was not recorded), namely whether or not the catheter had advanced too far into the right coronary artery, or whether the catheter might have inadvertently damaged the inside of the right coronary artery, or whether there was an overenthusiastic injection of dye into the right coronary artery, or whether the catheter was abutting the delicate inside wall of the right coronary artery when the dye was injected. Despite these reservations, his conclusion was: "There is no evidence on reading the records that there was any major departure from good medical practice."
2. This opinion was expressed in the absence of the disk containing footage of the procedure, with which he had not been provided, and which he accordingly requested.
3. Dr Helprin also said that while there was no evidence of departure from any good medical practice in performing the procedure, dissection of a coronary artery was "a highly adverse and highly undesirable outcome of a routine diagnostic… procedure particularly in a well, healthy and stable patient" (Exhibit A, page 2).
4. Dr Helprin went on to say: "It's fair to say that dissection may not have been evident at the time of the procedure as the dissection might have been very small initially, however there obviously must have been a very major dissection developing over the subsequent hours with the thrombosis of the artery and the presentation of the plaintiff the next day with the acute heart attack."
5. Nevertheless, Dr Helprin was of the view that there had been no misuse of any instruments, lack of skill or care (apart from not recording the minutiae of the procedure).
6. Dr Helprin went on to note that the fact that there was an aneurysm rendered the artery more prone to dissection and that this raised the question as to whether an invasive angiogram was needed in the first place. However, as is set out at the end of the section of this judgment on liability, the plaintiff withdrew an application to amend the statement of claim to rely upon a particular of performing an unnecessary procedure.
7. Dr Helprin went on to state that it could be reasonably argued that the plaintiff did not require this procedure and that this, not the performance of the procedure, was the problem. He also raised the issue of consent (Exhibit A, page 4).

Dr Helprin's second report

1. Dr Helprin was shown the footage of the procedure and on 23 April 2015 provided what he called a supplementary report which he summarised as follows: "In run 5 the catheter is advanced too far into the right coronary artery and the injection starts with the catheter abutting the wall of the artery. In run 6 of the right coronary artery there is dye staining of the proximal right coronary artery indicating the artery has dissected. In run 7 of the right coronary artery again we see the dye staining of the right coronary artery prior to further injection. In run 8 the catheter has been pulled back and is now in the correct position, however, we again see dye staining prior to injection. Clearly what has happened is that the right coronary artery catheter has been advanced too far into the right coronary artery and there's been an injection against the wall of the artery which has dissected the artery. The proximal dye staining indicates the artery has been dissected. It's only til run 8 that the catheter has been pulled back to the correct position. In summary the right coronary artery catheter has been pushed too far into the right coronary artery and the dye has been injected against the wall of the artery resulting in a dissection. This is evidenced by dye staining in run 6, run 7 and run 8 and its only til run 8 that the catheter has been pulled back to the correct position but the dissection has already occurred. In my view staff at St Vincent's Hospital failed to properly engage the correct position of the catheter into the right coronary artery and failed to properly detect the dissection of the artery and failed to therefore subsequently keep him in hospital for at least 48 to 72 hours to make sure that he was stable."
2. In summary, what Dr Helprin is saying is that the catheter was advanced too far in, and the dye staining indicated that the artery had dissected; when the catheter was eventually pulled back to the optimal position, there was further dye staining which was proof of dissection which the defendant's staff failed to pick up.

The reports of Associate Professor Adams

1. Associate Professor Adams' report of 23 February 2016 explained the nature of coronary artery dissection as a recognised (though uncommon) complication of coronary angiography, often occurring due to underlining abnormalities. As a general rule, where there was an iatrogenic dissection related to placement of a catheter in a coronary artery, there was some sign of the dissection showing up as evidenced by contrast within the wall of the vessel. That was not visible here, either in the film of the procedure or in the subsequent angiography taken at Liverpool Hospital on 25 October 2014, after the plaintiff's emergency surgery. While the procedure contributed to the plaintiff's right coronary occlusion, it would not have occurred in the absence of the coronary atherosclerosis in the right coronary artery.
2. Associate Professor Adams made the following points in answer to Dr Helprin: 1. The placement of the catheter was reasonable. 2. Both from the point of view of Dr Michel and Dr Gunalingam, the angiographic pictures did not show anything unusual. In particular, there was no sign of coronary dissection in the final pictures. 3. If the dissection had been recognised at the time of the procedure or afterwards, while the plaintiff was recovering (even if he had been kept in for the 48 hours Dr Helprin referred to), the outcome would have been the same, namely that he would have undergone the surgery that he had. 4. The plaintiff has made an excellent recovery from that surgery and any ongoing physical (as opposed to psychological) difficulties are unrelated to the performance of the surgery.
3. Both experts answered questions for a liability conclave. It can be seen from those answers that they agreed there was "no clear linear dissection which may be a clear sign of dissection" (answer 5(c)), although they differ in their interpretations of this, and that they agreed that it was impossible to tell the most likely cause of the occlusion from the Liverpool Hospital angiography (answers 11 and 12(b)).
4. The relevant answers are set out in full bellow.

Answers to Liability Conclave between Dr Helprin and Associate Professor Adams

1. Dr Helprin and Dr Adams' conclave answers were divided into three sections. Questions 1 to 9 ("Part 1") relates to the invasive coronary angiogram performed on 24 October 2015 in the defendant's Hospital. Questions 10 to 13 ("Part 2") relates to the treatment at Liverpool Hospital on 25 October 2015 and questions 14 to 17 are of a general nature.
2. Dr Helprin and Dr Adams answered questions 4 and 5 as follows: "Question 4: Did the risks of the Procedure include dissection? Answer 4: The risks of the Procedure included dissection, this could be coronary dissection or dissection of any of the arteries traversed during the procedure. Question 5: From the images obtained during the Procedure: (a) Did they show coronary dissection? Answer 5a: Did the images show coronary dissection, both Dr Helprin and Dr Adams agree that there is abnormal flow within the artery with hang up of dye, Dr Helprin feels that this is probably related to dissection and Dr Adams feels that this is largely due to the non-laminar flow inside the aneurysms. (b) If the answer to "(a)" is "yes", are you able to state the probable cause of the dissection? If so, what was the probable cause? Answer 5b: If there was a dissection, this would have been caused by the injection of dye through the TIG catheter into the artery presumably with the catheter against the wall of the vessel. The location of the tip of the TIG catheter was quite deeply engaged within the right coronary artery and if there was dissection, the location of the catheter would have contributed to dissection. (c) If the answer to question "(a)" is "no", did they show anything unusual? Answer 5c: Dr Helprin and Dr Adams both agree that there was unusual pattern of flow of the contrast i.e. dye within the artery. Dr Helprin attributes this to most likely to dissection. Dr Adams has mentioned earlier attributes this to artery abnormal flow caused by the aneurysm. Both Dr Helprin and Dr Adams agree that there is no clear linear dissection which may be a clear sign of dissection but both Dr Helprin and Dr Adams differ in their interpretation. (d) Did they show anything unusual? Answer 5d: The images demonstrate some atherosclerosis of the right coronary artery and the aneurysm which had previously noted on the CT, otherwise the answers to parts "b" and "c" continue. (e) Are aneurysms a possible cause of: (i) dissection; and (ii) thrombus? Answer 5e(i) & (ii): Aneurysms are possible causes or predisposition to both dissection and thrombosis."
3. Question 6, which was put on the basis of "Had a dissection been detected in the course of the Procedure, what would have been the appropriate treatment and/or steps taken?" and was answered as follows: "Had a dissection been detected the course of the procedure in the right coronary artery, the usual treatment would be to try and stabilise this dissection with coronary interventional procedures such as stenting. In this particular case, this may have been technically difficult due to the presence of the aneurysm and size mismatch of the vessel. Other interventions would have been surgery to correct this, however given his other coronary artery anatomy, it would have been preferable to try and avoid an operation."
4. In answer to question 8 ("Were there any signs or symptoms of a dissection evident on 24 October 2015 following the Procedure?"), the answer was: "Dr Helprin and Dr Adams disagree. We agree that there were no clinical signs of dissections such as chest pain or hemodynamic compromise, however as an outline in question 5, we differ in our interpretation of the angiographic images. Based on this, if a dissection was thought to be possible, both Dr Adams and Dr Helprin believe further monitoring in hospital for 24 hours would be appropriate, however if there was no sign of dissection, discharge as per usual would have been appropriate."
5. Question 9, referring back to question 8 ("If so, what were those signs and symptoms?"), was answered as follows: "Dr Helprin and Dr Adams agree that there were no clinical signs such as chest pain or hemodynamic compromise to suggest a dissection, however above we disagree about the interpretation of the angiographic images."
6. Questions 11 to 13 were answered as follows: "Question 11: What did the angiography taken at Liverpool Hospital show? Answer 11: The angiography taken at Liverpool Hospital showed a blocked right coronary artery with a clear stump of the vessel evident after injection of dye. Question 12: From images taken at Liverpool Hospital prior to angioplasty: (a) Was occlusion of the RCA [right coronary artery] evident? Answer 12(a): The occlusion of the right coronary artery was evident. (b) What is the most likely cause of any occlusion? Answer 12(b): It was impossible to tell the most likely cause of any occlusion based on this initial image. The appearance would be consistent with both thrombotic occlusion or dissection. Question 13: From images taken after the angioplasty: (a) Was dissection evident? Answer 13(a): There was clear evidence of thrombosis within the vessel. Evident after the passage of the angioplasty wire and restoration of flow in the right coronary artery. Despite no clear linear dissections, this could not be excluded. (b) If yes, was the probable cause of the dissection the angioplasty? Answer 13(b): If dissection was present, it is not possible to say whether this dissection was caused by instrumentation of the vessel by the angiogram performed on the 24th of October or whether this was caused by passage of the angioplasty guidewire on the 25th of October at Liverpool Hospital. If the dissection was not caused by the angioplasty, firstly it could have been predisposed to by the atherosclerotic disease that was already present in the blood vessel or it could have been due to the diagnostic coronary angiogram performed on the 24th of October 2014. (c) If no, what were other possible causes of the dissection? No other obvious cause present"
7. There were three new issues raised in the course of oral evidence. One was whether a dissection was visible, another was whether it was negligent for Dr Michel not to make a test shot and a third was whether the catheter's position was known prior to the dye run. Neither of these propositions was put to Dr Michel or to Dr Gunalingam.

Failure to make a test shot

1. This was not one of the particulars of negligence in the statement of claim. Much of the evidence is set out elsewhere but, in the interests of clarity, I repeat it here. The principal difficulty is that such a claim was never part of the particulars.
2. Dr Michel's evidence was as follows: "Q. In Mr Zora's case, did you carry out a test injection to see where the catheter was? A. I can't recall if we performed a test injection or not. We don't always do it. We use a test injection of a very small amount of contrast to determine whether the tip of the catheter is in the coronary artery or still in the main blood vessel. So the test is not recorded, so it won't be one of the runs that we see today. Q. All right. A. It just tells you if the catheter is in vaguely where you hope it to be. If you're convinced it's in the right place, you don't bother doing it. Q. That's a matter of judgment, is it? A. Yes. Q. When you mentioned the runs, the runs are references to images. Is that correct? A. A short movie clip. Q. They're short movies. In regards to Mr Zora, is it the case that the catheter went into the left coronary artery first? Is that right? A. Yes. So my standard practice is to image the left first and then we move onto the right." (T 107-108)
3. The catheter's position can be seen in the absence of contrast but the aneurysm cannot, and this requires the insertion of dye. The test shot consists of a minute amount of the dye into the catheter, not the drawing back and replacing of the catheter in the manner which appears to be envisaged by the plaintiff's submissions. The test shot tells the doctor performing the angiogram if the catheter is in the right position, but if the doctor performing the angiogram is convinced it is in the right place (or, for that matter, in the wrong place) "you don't bother doing it" (T 108) because if the catheter tip were already in the wrong place "then it's already too late" (T 121).
4. Dr Michel said he could not recall having performed a test shot, not that he did not do one. He said that the test shot was "not recorded" (meaning as a general rule) and there was no challenge to this evidence and no submission that failure to record the test shot was evidence of negligence. He expressed a general view about the degree of necessity for it.
5. Dr Helprin acknowledged that the catheter was not recorded going in but his evidence about the test shot not being recorded was put in the following terms: "WITNESS HELPRIN: No. You don't record it [the catheter] going in. Then you do a test shot to see where you are, and I believe there's no record of a test shot. Then when you do the test shot you either make a decision it's in the optimal position, which is fine, or it's in a non-optimal position, in which case you try to correct that." (T 161)
6. Dr Helprin went on to say: "WITNESS HELPRIN: That's right. If they would have pulled it back from the test shot - they can't remember whether they should have done a test shot. It's good practice, it's good clinical practice, it's proper clinical practice to do a test shot and if, if it's not in the optimal position in the test shot, you, you pull the catheter back to, to the optimal position where it's less likely to damage the artery. CRANITCH: He does not recall, as I understand it, Dr Michel does not recall whether he did a test shot or not. … CRANITCH: Ought he to have done a test shot? WITNESS HELPRIN: Yeah, yes, yes, yes. We always do a test shot. Good clinical practice is you do a test shot to make sure you're in the right place. Yeah." (T 163-164)
7. Associate Professor Adams explained the role of the test shot in the context of how angiography had become a much more precise procedure over the past 25 years: "WITNESS ADAMS: Just, just only I suppose a few points that I'd make. The first one is that in your response - in Gary's response to your question about angiography, he mentioned that angiography hasn't changed very much in the last 25 years. I'd like to disagree with that, that 25 years ago we did virtually all of our angiography either via the femoral approach, using a six French Catheter, which is a thicker catheter‑‑ KETTLE: That's a wider one. WITNESS ADAMS: ‑‑a wider catheter. In many institutions now, a lot of the angiography is done via a radial approach and radial angiography, whilst it's still an angiogram, it's quite a different technique to what's involved in femoral angiography. One of the - as Dr Helprin pointed out, from the radial approach there is probably slightly less ability to control the, the catheter‑‑ HER HONOUR: So you'd be‑‑ WITNESS ADAMS: ‑‑as well. HER HONOUR: ‑‑more likely to have to use a test shot? WITNESS ADAMS: You, you should use a test shot in both. I suppose the point I'm making is that because of that, the radial angiography uses a, a smaller and softer catheter, like the one here which is a TIG catheter, and the reason for that is that quite often the TIG catheter will deeply engage the right coronary artery. And Gary spoke about an optimal position, I think, yeah, there is always an optimal position, but with a radial approach it's not often possible to just sit the catheter right at the entrance of the artery, and that's why they're made softer, so that they can cope with being more deeply engaged within the coronary artery. What's really important, and more important than whether the, the catheter is deeply engaged is that the catheter, catheter is coaxial with the artery, so that it's pointing in the same vector as the artery so that the dye, when it's injected, goes down the artery, not into the wall of the vessel. So certainly you would expect to do a test shot to see that that was in the right spot and then you would take your angiogram. And it is true that with these catheters, because they're softer and smaller, if you do pull them back there is the risk that they will come out of the right coronary artery. And whilst it would be wrong to say it's difficult to put it back in, there is a risk, and the biggest risk when you're putting the catheters into the artery is when you're putting them into the artery, not once they're there. So if you pull it back, you would have to re‑enter the artery, exposing the artery to, to further potential damage. That would not be the right thing to do. So, I would agree, if you were doing a femoral angiogram, this position of the catheter in a six French one would be really unacceptable, not just sub‑optimal, but in this type of technique, it might not be optimal, but it's acceptable, particularly if it's coaxial. And that's far safer than, than, than doing something else. For instance, if you were landing in a, a hurricane in an aeroplane and you had a bad landing but you were safely on the ground, you'd be pretty silly to take off again and try and get a perfect landing, just be crazy." (T 164-165)
8. It was never explained why a test shot was necessary if the catheter was, for example, in an optimal position, or what role this played in the procedure; if it was an important role and was omitted, this should have been identified in the particulars. If the catheter was in position, that effectively was the "test shot", and that is what the evidence on this topic established. Whether Dr Michel's positioning of the catheter for the first three runs in a sub-optimal position was negligent is the real issue.
9. As is set out below, I do not accept the evidence of alleged failure to carry out a test short to be evidence of negligence. As Dr Michel pointed out, if the catheter tip on the test shot was too far inside the aneurysm, "then it's already too late".

Seeing a dissection

1. Contrary to his earlier reports, Dr Helprin stated that he now believed a dissection could be seen: "WITNESS HELPRIN: Yeah, I've done ongoing reviews of the images. Yeah. CRANITCH: All right. Are you able to tell us upon what basis you have changed your mind, before we see the vision, by reference to any particular part of the procedure? WITNESS HELPRIN: Yeah. Well, what we've done is - because there was this court case coming, I reviewed the angiogram and we did what we call a frame‑by‑frame review, which is each individual picture, and then right at the very end - we did a frame‑by‑frame analysis. We believe that we can see a dissection. HER HONOUR: Who's "we"? WITNESS HELPRIN: I believe, sorry. I believe. CRANITCH: Are you able to tell us what frame it is that you're referring to? WITNESS HELPRIN: Yes, it's run 8, frame 9." (T 151)
2. This evidence came as a surprise to the defendant: "KETTLE: Your Honour, can I please interrupt? I do it very reluctantly. KETTLE: Your Honour, because this is new evidence‑‑ HER HONOUR: You want to talk about it..(not transcribable)..beforehand? KETTLE: I think‑‑ HER HONOUR: Was this sprung on you with complete surprise this afternoon? KETTLE: Yes, your Honour. Because we had the joint report. The way I would like to do it, your Honour, to save time and proceed - HER HONOUR: Do you want to go outside for five minutes? KETTLE: Your Honour, no, I don't need five minutes. I'm happy for - I'd like to lead Prof Adams, rather than have him cross-examined. HER HONOUR: In the circumstances, Mr Cranitch, I think it's appropriate. CRANITCH: I have no problem with that, your Honour." (T 152-153)
3. Associate Professor Adams did not agree: "WITNESS ADAMS: The first thing is to talk generally about angiography and what we're doing with this. That is injecting dye into an artery so that we can see the shadow of that artery. We're not actually seeing the artery, we're just seeing the dye within that vessel. I'm sure this has come up earlier in this case. There's a reason that we do this, acquiring semi-moving images, and that is as you move from frame to frame there's a great deal of variation. In fact you could probably - with this type of vessel where we have swell and flow within an aneurysm, it's very common that we'll get funny swirling patterns and funny lines and all sorts of things. However, a dissection just does not look like that. You would actually see a sustained area of linear opacity within the vessel that didn't come and go. The second thing that I would also point out is that it's frequent in angiography that we will get linear appearances that are not due to anything in the vessel, but are due to something else. If you were to have a look at this - it may be easier if I come over and point this out on the screen. … WITNESS ADAMS: So once again, because we're not actually looking at vessels, we're looking at a contrast within the vessel, anything else that that contrast goes into will create linear opacity. If we look at this here, we see that there is an acute marginal branch that comes off the edge, passes over the aneurysm, and makes a linear opacity - if you look carefully there, you can see a great big line going right across it. It's moving. That's why we use semi-film, to be able to see these things moving to determine one thing from another. If I was to stop this sprain at any number of places, we would see a linear opacity that has nothing at all to do with dissection. So there's a great example in that view there. We can now see a great big line going across that has got nothing to do with‑‑ CRANITCH: ..(not transcribable).." (T 154)
4. Associate Professor Adams went on to explain that injecting dye interrupts the normal laminar flow of the vessel, so that rather than straight lines going down the vessel, the flow curls around and forms little eddying areas of dye. This shows us the aneurysm, but it also gives an impression of patterns within it, and the dye can persist as well. However, this was not the sort of persistence that was seen with a dissection, where there would be a clear straight line that would be unrelated to the flow from the catheter.
5. As I have set out in more detail below, together with my reasons for so doing, I have preferred Associate Professor Adams' view of the asserted dissection

Seeing the catheter and touching the artery

1. Much of the cross-examination was predicated on not being able to see the position of the catheter prior to injection of the dye (see for example T 119, 135-137). This appears to be the basis of the cross-examination as to the test shot.
2. It is the aneurysm, not the catheter that is not visible in the absence of contrast, as Mr Kettle explains in his submissions in reply at paragraphs 4-9. Dr Gunalingam pointed out that the catheter can be seen on the angiograph images (T 135) and Associate Professor Adams agreed at T 154.
3. Mr Kettle points out that Dr Michel's evidence was misquoted when it was put to Dr Helprin that he had agreed it was impossible to tell where the tip of the catheter was before doing a test shot or starting to run the dye and that Dr Helprin agreed with this. However, it is quite clear from the film of the procedure that Dr Gunalingam and Associate Professor Adams are correct in this regard.
4. Mr Kettle also points out that the plaintiff's submissions at paragraph 24 misstate what Associate Professor Adams states at T 173 when he says: "I still think that the catheter position was quite reasonable for this sort of thing and, with the degree of disease in the proximal vessel, I would actually be happier with the catheter sitting within the aneurysm in a coaxial position, where the catheter is not touching the wall. If you pull that back further, you run much more of a risk of the catheter either falling out and having to be re‑engaged and therefore damaging this proximal area."
5. The highest the plaintiff can put this is that Dr Helprin said that "at the very beginning [the catheter]'s just slightly against the wall" (T 169) although conceding that the pressure trace was normal (T 169), Associate Professor Adams said that the catheter was sitting within the aneurysm in a coaxial position "where the catheter is not touching the wall." (T 173).
6. The unchallenged evidence of Dr Michel is that the pressure tracing was normal throughout this procedure. When the dye is injected the catheter can be seen within the aneurysm, aligned with the direction of the vessel (T 19).
7. I am satisfied that the catheter was close to the wall only, and that this did not increase the risk as "it's going to be within a millimetre of the wall wherever you position the catheter" (T 119).
8. There were also submissions that the catheter was not parallel or "coaxial" with the artery. Mr Kettle's submissions in response to these issues were similarly that this was not what the experts had agreed upon. Arteries do not run in straight lines.

The plaintiff's contentions

1. Having noted these new matters raised during the hearing, it is clear that the plaintiff's particulars of negligence go well beyond those particularised, and may be summarised to include: 1. The defendant failed to place the catheter in the correct position in that the catheter was positioned under the aneurysm. This was clearly not the optimal position and in fact caused or contributed to the dissection occurring. 2. The defendant's servants or agents failed to see the evidence of dissection which Dr Helprin (in his oral evidence but not his report) said was evident. 3. Having caused this dissection and having then failed to pick up that it had happened, the defendant failed to adequately monitor the plaintiff post-operatively, in that he should have been kept in longer than the period in question. 4. The fact that Dr Michel could not "recall whether he did a test shot and he says you don't do it all the time" is itself negligent and "indicative of the level of care applied by Dr Michel" (T 200 lines 19-25). 5. While it may be acceptable to leave the tip of the catheter in an aneurysm, this would be dependent upon the catheter being coaxial with the artery (which is impossible in an aneurysm). 6. The catheter was not only placed in the wrong position but abutting the wall of the artery. 7. The pressure gauge would have revealed these problems.
2. I have drawn this list largely from Mr Cranitch SC's draft submissions, oral submissions and the outline of submissions he provided after I reserved judgment. The reasons for these difficulties lie in the way the hearing was conducted, so I will briefly note them.

The conduct of the proceedings

1. The plaintiff's did not comply with the Standard Orders for Hearings to identify the disputed issues of fact and a schedule of damages to the defendant and to the court prior to the hearing.
2. The changes to the plaintiff's case during the hearing, the principal points being noted above, also included applications for amendment, severance of liability from quantum and a significant change in the expert's evidence which occurred after the plaintiff's witnesses had given evidence. Not only were new issues set out above not particularised, but (particularly in the case of the asserted evidence of dissection) also not put to the witnesses of fact, Dr Michel and Dr Gunalingam.
3. The plaintiff's oral and written submissions to the court did not include specific references to the defences under ss 5D, 5I and 5O. Submissions on these were only provided after requests from myself, and after I had reserved. The submissions which Mr Cranitch SC addressed orally dealt with negligence in a generalised fashion without specific reference to the legislation (see pages 1-7 of Mr Cranitch SC's "Draft outline of submissions").
4. While dealing with procedural issues, in the course of refusing the plaintiff's applications to amend and to sever liability from quantum, I indicated that I would give reasons for my rulings. I set out the former here and the latter at the commencement of the section of this judgment relating to damages.

Application to amend the statement of claim

1. At the commencement of the hearing, senior counsel for the plaintiff informed the court of two proposed amendments to liability and quantum of the statement of claim, followed by an application to sever liability from quantum: "CRANITCH: Your Honour, I came into this matter, effectively, yesterday, although apparently a brief was delivered last week but my learned junior snaffled it. I didn't get a chance to read it to any extent over the weekend. Your Honour, on discussing the matter for the first time with the plaintiff yesterday it became clear to me there are a number of matters that need addressing which are currently not‑‑ HER HONOUR: Can I cut you off [at] the knees to say, would this have anything to do with the proposed amendments to the notice of motion of 27 September? CRANITCH: Yes, that's one of them. HER HONOUR: That's only one? CRANITCH: Yes. HER HONOUR: All right, okay. CRANITCH: Your Honour, the other is it has become also apparent to me that the plaintiff has a claim for economic loss and apparently it hasn't been pleaded, for some reasons which escape me." (T 1)
2. I have set out elsewhere my reasons for refusing the plaintiff's application for leave to amend to plead past and future economic loss and to sever liability and quantum. These are my reasons for refusing leave to amend the particulars of negligence.
3. Mr Cranitch SC explained that the principal reason for the application being brought so late was that he had brought "a fresh mind" to the claim, but he added the following explanation: "HER HONOUR: So that's yesterday. Well of course under the principles of Aon, you have to have an explanation, so what is the explanation for the delay in relation to the matters the subject of the applications for - CRANITCH: Well, your Honour, I don't know; there was apparently a motion which was discontinued. Now, whether that was intended to be pursued at the trial I'm not sure, because I wasn't involved in it at that stage. HER HONOUR: Well, I think I can help you out there, because there is a letter. CRANITCH: I beg your pardon? HER HONOUR: There is a letter from their solicitor - CRANITCH: Yes. HER HONOUR: ‑‑to the Registrar saying they no longer pressed it; I've got it here, do you want me to hand it down? CRANITCH: No, no, no your Honour, if that's what it says, that's what it says, but I don't understand why - HER HONOUR: What I'll do then - CRANITCH: not, but anyway. HER HONOUR: Well, I think you should have a look at it because I think that I wouldn't be happy, my looking at it if you hadn't seen it; perhaps if you have a look you can see that they wrote withdrawing the motion because they said it wasn't pressed. CRANITCH: Well, that may be so, clearly if they're withdrawing it they're not pressing it, but - HER HONOUR: Well, you said you didn't know what happened, perhaps it was going to be raised at the trial? CRANITCH: I doubt very much that there was a current intention to raise it at the trial, to be honest. HER HONOUR: Well, that makes it likely that they weren't going to go ahead with it. CRANITCH: I think that's so, your Honour. HER HONOUR: Yes. CRANITCH: But I mean, maybe it's fresh eyes on it, I don't know. I've got to run the case in the best interests of my client - HER HONOUR: Yes. CRANITCH: ‑‑and best interests of my client in my professional judgment requires that we seek to amend to claim economic loss and that we seek to amend to put in the - which your Honour must have - the amended statement of claim. HER HONOUR: Yes. I see. Look, there is another issue that's relevant: looking at the email from Judicial Registrar Howard, he wrote back to Mr Lacey saying that, "Unless the position is put by consent and/or written consent orders made, this will not be dealt with by email," so - " (T 2-3)
4. Counsel for the defendant told the court: "KETTLE: Your Honour, it was opposed and the amendment was opposed and withdrawn your Honour, and it was not raised again until my learned friend has just raised it." (T 4)
5. Mr Kettle opposed the amendment on the basis that there had been a conclave of experts and a joint report in which these issues were not addressed, the lateness of the application and the circumstances in which the 27 September 2016 Notice of Motion had been withdrawn. Mr Cranitch SC submitted that the interests of justice should always be paramount and that the adequacy of the explanation of "whether it's a fresh pair of eyes that look at it or not is really irrelevant", as "if the plaintiff is going to be prejudiced one has to look at competing prejudices" (T 10). Alternatively, he proposed a separation of liability and quantum as solving the problems arising from the lateness of the applications to amend liability as well as quantum (T 10-11), although how separating these would enable the defendant to meet new material on liability was unexplained.
6. The relevant principles are set out in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 ("Aon") and ss 56-58 Civil Procedure Act 2005 (NSW): see Iacovone v Raftos [2016] NSWSC 502 at [50]-[54].
7. The plaintiff had been on notice, from Dr Helprin's report of 23 April 2015, that his opinion was: "This raises the question as to whether an invasive Angiogram was needed in the first place given the fact that the aneurysm was well visualised on CT Coronary Angiogram and that the usual therapy for these sized aneurysms is medical management in the absence of other major Coronary disease." (p 3)
8. Dr Helprin went on to note that it could be reasonably argued that the plaintiff did not require an invasive cardiac procedure. However, he did not identify how this ground of negligence related to the performance of the angiogram by Dr Michel under the supervision of Dr Gunalingam. The plaintiff was referred to Dr Gunalingam by his cardiologist, Dr Renganathan, on 28 August 2014, who noted the CT coronary angiogram results and then wrote to the plaintiff's general practitioner, Dr Sanki, as follows: "Dear Dr Sanki, Thank you for referring Wasfe for cardiovascular evaluation… Management Plan: 1. We performed a stress test… 2. I have organised for Wasfe to have a 24-hour ECG Holter and a standard echocardiogram… 3. I have also organised for him to have invasive coronary angiogram at St Vincent's Public Hospital to evaluate the findings of the CT coronary angiogram and to assess his right coronary artery aneurysm. 4. I have given him strong advice to stop smoking completely… 5. We discussed about further management of his dyslipidaemia, but Wasfe wants to try lifestyle changes for the next six months. He has declined to be on statins…"
9. Dr Renganathan wrote, on the same date, to Dr Gunalingam as follows: "Thank you for performing a coronary angiogram on the above who is a heavy smoker and has Dyallpidemia. Pt. declined statins and would like to try lifestyle changes. The CTCA has shown a 1.7 cm length of aneurysmal change in the right coronary artery. The maximum diameter is 1.0 cm. There is also a mid proximal LAD disease (30%). CTCA report attached."
10. These reports make it clear that the decisions to perform these tests were made by the plaintiff's cardiologist, his general practitioner, or both.
11. Is Dr Helprin saying that the defendant should have refused to perform this test despite Dr Renganathan's referral, or that the advice of some other medical practitioner is negligent, or both? This was never made clear, but the unnecessary nature of this test was referred to by Dr Helprin several times in his evidence, in terms critical of the defendant's staff and as further indication of the negligent way the procedure was carried out.
12. Whether or not the application would have resulted in the joinder of other parties by the plaintiff and/or defendant, the bringing of such an application on the first day of the hearing without any explanation beyond Mr Cranitch SC coming into the matter at short notice shows a disregard for Aon principles and on that basis alone should be rejected. The circumstances in which the plaintiff's legal advisers brought a notice of motion some weeks before the trial and then agreed that the motion should be dismissed with costs, leaving the defendant's legal representatives under the illusion that this would no longer be an issue, are also relevant.

The relevant provisions of the Civil Liability Act 2002 (NSW)

1. When determining issues of liability for medical negligence, it is essential to commence with a consideration the statutory provisions. I have set out, at the commencement of this judgement, the relevant provisions of the Civil Liability Act which fall for consideration.
2. If no dissection occurred, is there in fact a link between the performance of this procedure and the plaintiff's heart attack the following day? In lay terms, the circumstances in which the plaintiff suffered a heart attack would appear to be strongly indicative of such a connection; Dr Michel himself described the connection as "highly likely". However, I must be guided by the expert evidence rather than reach a conclusion which may appear plausible but may not be the case.
3. As to whether a dissection occurred at all, the answers lie in the expert opinions set out in the conclave report. One of the key passage in the reference to multiple possible explanations for this complication, in circumstances where if there had been a major dissection of the kind that could have led to the plaintiff's heart attack, that would have come up "pretty quickly" (i.e. during the period he remained in hospital recovering): WITNESS ADAMS: There's - unfortunately angiography is not a simple straightforward safe procedure. There are risks of heart attack, of blood vessels occluding, whether it be due to thrombosis or due to other factors but it is certainly recognised that, post‑angiography, in some cases there would be consideration of an increased risk of heart attack. KETTLE: And would you refer to those as inherent risks? WITNESS ADAMS: Absolutely. KETTLE: Dr Helprin, would you agree with that. WITNESS HELPRIN: Yes, there are inherent risks with angiography that the procedure has to be performed competently. KETTLE: And I note that you've agreed in the joint report that in fact there are multiple possible explanations for the thrombus forming the next day. Is that right? WITNESS HELPRIN: There are a number of different possibilities, yes. WITNESS ADAMS: Absolutely. I would say that if it is a major dissection we would normally see that pretty quickly. WITNESS HELPRIN: We agree it wasn't a major procedure, yes. WITNESS ADAMS: Other factors, I suspect that with that sort of perfect storm of risk factors for clotting, that there's a good chance that this may have happened at some point." (T 166 - 167)
4. Until the day he gave evidence, Dr Helprin agreed (as the conclave evidence demonstrated) that no dissection was visible. It was never put to either Dr Michel or Dr Gunalingam that such a dissection was visible. It is common ground that the investigation reports from the plaintiff's surgery the following day cannot assist in the determination of this issue.
5. The plaintiff has not discharged the onus of proof that out of that number of different possibilities, the cause was the negligent conduct of the angiography. Once the experts had agreed that there were a number of different possibilities, the only basis upon which negligence could be made out would be if there was in fact a dissection evident from the film which was not picked up either by Dr Michel or Dr Gunalingam and/or that the procedure was performed negligently (for example, by reason of the failure to place the catheter in the optimal position).
6. Additionally, despite the change in opinion of Dr Helprin, I do not accept that a dissection is visible; I prefer to accept his previous considered opinion (and that of Associate Professor Adams) in the conclave report. I also prefer to accept Associate Professor Adams' view that the manner in which the procedure was performed was not negligent, even though the catheter was not in the optimal position.
7. Having made these factual findings I apply them to the defences raised under the Civil Liability Act.

Causation - section 5D

1. Section 5D provides: "5D General principles (1) A determination that negligence caused particular harm comprises the following elements: (a) that the negligence was a necessary condition of the occurrence of the harm ("factual causation"), and (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused ("scope of liability"). (2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. (3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent: (a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and (b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest. (4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party."
2. As is noted above, Dr Helprin and Associate Professor Adams agreed in their answer to question 4 (see conclave answer 4 above) and evidence that the risks of the procedure included dissection of any of the arteries traversed by the catheter during the procedure.
3. The defendant submits that there is not necessarily any relationship between the act asserted to be negligent and the harm suffered, and the liability cannot follow where the risk of dissection was unavoidable, although the primary submission was that the occluded right coronary artery was attributable to dissection had not been established on the balance of probabilities.
4. The defendant further relies upon the passages in the report of Associate Professor Adams stating that if the dissection had been recognised at the time, the outcome would not have been different, and that the plaintiff's excellent cardiac function meant that, from a physical point of view, the plaintiff had no health problems (written submissions, paragraph 25(3)). I accept those findings.
5. The defendant has made out its defence under s 5D.

Inherent risk

1. The plaintiff submits that dissection was not an "inherent risk", in that what must be identified is that the particular risk cannot be avoided with the exercise of reasonable care and skill (Cox v Fellowes [2013] NSWCA 206 at [185]). The plaintiff says that if the procedure is done properly, the experts agree that the risk is "nominal" (written submissions, at paragraph 28) and that the dissection was not the materialisation of an inherent risk but the outcome of a lack of care and skill.
2. Section 5I provides: "5I No liability for materialisation of inherent risk (1) A person is not liable in negligence for harm suffered by another person as a result of the materialisation of an inherent risk. (2) An "inherent risk" is a risk of something occurring that cannot be avoided by the exercise of reasonable care and skill. (3) This section does not operate to exclude liability in connection with a duty to warn of a risk."
3. As both experts agreed at T 166, there is no doubt that the plaintiff's subsequent heart attack was an inherent risk: "KETTLE: And would you refer to those as inherent risks? WITNESS ADAMS: Absolutely. KETTLE: Dr Helprin, would you agree with that. WITNESS HELPRIN: Yes, there are inherent risks with angiography that the procedure has to be performed competently"
4. As is noted in my findings of fact above, I am satisfied that the plaintiff has failed to establish that the procedure was not "performed competently" (to use Dr Helprin's words).

The section 5O defence

1. In Rogers v Whitaker (1992) 109 CLR 625 Mason CJ stated (at 487): "In Australia, it has been accepted that the standard of care to be observed by a person with some special skill or competence is that of the ordinary skilled person exercising and professing to have that special skill… that standard is not determined solely or even primarily by reference to the practice followed or supported by a responsible body of opinion in the relevant profession or trade."
2. Section 5O Civil Liability Act 2002 (NSW) provides that a medical professional will not be liable for negligence arising from the provision of medical services if acting in a manner that, at the time, was widely accepted in Australia by peer professional opinion as competent professional practice.
3. Section 5O 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."
4. In Dobler v Halvorsen [2007] NSWCA 335, Giles JA traces the history of enactment of s 5O and explains, at [59]-[60]: "[59] …[Section 5O's] importance does not lie so much in questions of onus of proof as in who determines the standard of care. Commonly, as in the present case, there will be expert evidence called by the plaintiff to the effect that thedefendant's conduct fell short of acceptable professional practice and expertevidence called by the defendant that it did not; the expert evidence may ormay not recognise that the opposing professional practice is one which hassome currency. Apart from s 5O, the Court would determine the standard ofcare, guided by the evidence of acceptable professional practice. It would notbe obliged to hold against the plaintiff if the defendant's conduct accordedwith professional practice regarded as acceptable by some although not byothers. Section 5O has the effect that, if the defendant's conduct accorded with professional practice regarded as acceptable by some (more fully, if he "acted in a manner that … was widely accepted … by peer professional opinion as competent professional practice"), then subject to rationality that professional practice sets the standard of care. [60] In this sense, s 5O provides a defence. The plaintiff will usually call hisexpert evidence to the effect that the defendant's conduct fell short ofacceptable professional practice, and will invite the Court to determine thestandard of care in accordance with that evidence. He will not be concerned to identify and negate a different professional practice favourable to thedefendant, and s 5O does not require that he do so. The defendant has theinterest in calling expert evidence to establish that he acted according toprofessional practice widely accepted by peer professional opinion, which ifaccepted will (subject to rationality) mean that he escapes liability."
5. This means that s 5O may operate so as to determine the defendant's standard of care, but that standard of care is determined by the court, with guidance from evidence of acceptable pro­fessional practice, unless it is established (by the defendant) that the defendant acted according to professional practice widely accepted by (rational) peer professional opinion. For example, evidence of "sub-optimal" performance of a procedure, as to the standard or methods of treatment provided to the plaintiff may amount to conduct of this kind.
6. The plaintiff argues that this defence must fail for the reasons set out in MD v Sydney South West Area Health Service [2009] NSWDC 22, where a defendant which had not pleaded s 5O at all was not permitted to raise the defence at trial, arguing that the absence of particulars of the s 5O defence was fatal.
7. Goldring DCJ was dealing with an application by a defendant to plead an entirely new and unpleaded defence at the trial, and must be read in that context. The plaintiff's complaint about lack of particulars was not raised before or even during the hearing, but after I asked senior counsel to address the s 5O issues as this defence had not been referred to in his submissions. By that stage the defendant had not only led evidence but made submissions about the s 5O defence, and it is simply too late for the plaintiff to object after the proceedings are over.
8. Alternatively, Mr Cranitch SC submitted that there was "no suggestion anywhere in the evidence" that the defendant intended to rely on s 5O and "not one question" was put to any of the experts to the effect that Dr Gunalingam or Dr Michel acted in a manner accepted in Australian by peer professional opinion as competent professional practice. Submissions of the "no evidence" variety are difficult to determine where the opposing party (as is the case here) simply points to the evidence. I do not accept the plaintiff's submission that the defendant should not be able to rely upon the s 5O defence (written submissions, paragraph 37).
9. The defendant's submissions in relation to s 5O consist of reliance upon Associate Professor Adams' evidence that the conduct of the procedure and the interpretation of the images by Dr Michel and Dr Gunalingam was in accordance with practice widely accepted as competent by peer professional opinion, which would negative any finding of liability otherwise available to the plaintiff.

Findings as to negligence

1. I am satisfied that the defendant's conduct of the procedure was not merely in a manner that was widely accepted by peer professional opinion as competent professional practice (s 5O), but that a reasonable standard of care was provided. I am also satisfied that the plaintiff has not established that, out of a number of causes for the condition he suffered (and which is an inherent risk of the procedure) that the defendant's negligence was the cause.
2. The plaintiff has failed to establish liability and judgment will be entered for the defendant.
3. In the event that I have erred in my findings I make some brief observations as to the range of damages which would otherwise be awarded, as well as set out my rulings in relation to the application to sever liability from quantum and to amend the statement of claim to bring a claim for past and future economic loss.

Quantum

1. On the first day of the hearing, the plaintiff made an application for the separate determination of quantum (s 62(2) Civil Procedure Act 2005 (NSW) and r 28.2 Uniform Civil Procedure Rule 2005 (NSW)). These are my reasons for refusing that application.
2. The difficulties created by separate trials are discussed by the High Court in Waterways Authority v Fitzgibbon (2005) 221 ALR 402 and Perre v Apand Pty Ltd (1999) 198 CLR 180 as well as by the New South Wales Court of Appeal in Lepore v State of New South Wales [2001] NSWCA 112. Having regard to the lateness with which this application is brought, the consideration set out by the High Court in Aon Risk Services Australia Ltd v Australian National University should also be taken into account.
3. It is generally acknowledged that separate determination is "an exceptional course to be contrasted with the ordinary course of deciding a case in its totality" (Commonwealth Bank of Australia v Clune [2008] NSWSC 1125 at [6], citing Street v Luna Park Sydney Pty Ltd [2007] NSWSC 697 at [5]). While it has been said that the Court should take "a more interventionist role" since the enactment of the Civil Procedure Act 2005 (NSW) (Integral Home Loans Pty Ltd v Interstar Wholesale Finance Pty Ltd [2006] NSWSC 1464 at [6]), great care must be taken with an application to separate liability and quantum in personal injury proceedings, as the risk that the issues will be inappropriate for separation (Lepore v State of New South Wales at 177), and may not result in the quicker and cheaper resolution of proceedings (Southwell v Bennett [2010] NSWSC 1372 at [15]).
4. The reason for separation given by Mr Cranitch SC is that he brought "a fresh mind" to the proceedings when he was briefed the night before the hearing, and he considered that a claim for economic loss should be made. In other words, this was a different way of seeking the order he had previously sought from me, namely that his client be granted leave to amend.
5. This is a claim in very modest compass in terms of damages. It is evident from the plaintiff's own occupational therapist's report that his claims, both past and future economic loss fall below the threshold and these claims (which were not the subject of any other evidence apart from that of the plaintiff) were essentially abandoned (in relation to future home care) during the hearing.
6. The plaintiff is working two days a week. His reason for not working longer hours is not a medical one but related to his anxiety that he might have another heart attack. No evidence was put before me as to how the claim for future economic loss of $500 a week was quantified in those circumstances.
7. Mr Kettle submitted there was considerable overlap between issues of liability and quantum in that the medical evidence concerning the plaintiff's operation and impact upon his health was inextricably bound up with evidence relevant to damages.
8. It was for these reasons that I refused the application to separate liability from quantum.

Non-economic loss

1. The plaintiff pleads the following particulars of injury: 1. Right coronary artery dissection. 2. Heart attack. 3. Required to have a saphenous vein graft. 4. Acute pulmonary oedema. 5. Low cardiac output. 6. Right ventricular impairment. 7. Collapse of lungs. 8. Psychiatric/psychological injuries. 9. Depression. 10. Anxiety. 11. Stress.
2. The plaintiff pleads the following particulars of disabilities: 1. Permanent heart damage. 2. Lung damage. 3. Loss of strength and stamina. 4. Difficulty walking. 5. Loss of energy. 6. Loss of motivation. 7. Fear for life and wellbeing. 8. Scarring. 9. Loss of ability to exercise. 10. Psychiatric/psychological injuries. 11. Depression. 12. Anxiety. 13. Stress.
3. Many of the particulars of injuries set out above relate to the heart attack the plaintiff suffered the day after the procedure. It is conceded (plaintiff's written submissions, paragraph 29) that he now has "good heart function" and the claim is one of continued problems which are "either real or from a psychiatric reaction". He has had hospitalisation following chest pain, the most recent being about seven months prior to the commencement of these proceedings.
4. As to the plaintiff's ongoing psychiatric problems, Dr Teoh provided a report, dated 30 August 2015, in very limited terms. He made the following observations in relation to the plaintiff's mental state examination: "MENTAL STATE EXAMINATION Mr Zora appeared casually dressed with no evidence of physical neglect. His speech was coherent, he was not thought disordered. He was cooperative and spontaneous during the interview. He was preoccupied with his physical health. He reported a fear of a heart attack. He has difficulty with physical activities. He reported feeling anxious about seeing doctors. He has problems with sleeping at night. There was no evidence of psychotic symptoms or suicidal ideation. His cognitive functions were intact; there was no evidence of short or long term memory impairment."
5. Dr Teoh noted the plaintiff had not been on any medication for his emotional stress and was not told the plaintiff had been having counselling but had stopped attending on legal advice. He diagnosed a chronic adjustment disorder with anxious mood (DSMV Diagnostic Criteria), due to the cardiac surgery. He had difficulty with physical activities, was preoccupied with negative thoughts, felt anxious and complained of physical symptoms. He concluded the plaintiff's progress was "guarded, as his condition had become chronic". He recommended counselling fortnightly or monthly for six months, at a cost of $250 per session.
6. The occupational therapist, Ms Ardinghi, provided a report dated 17 December 2015 making observations of the plaintiff which are relevant to this issue. She noted that the plaintiff said he was constantly frightened, but he would go to sleep and not wake up and constantly thought about having another heart attack. He was now able to start driving and complete lighter tasks such as personal care and light meal preparation, but unable to complete heavier tasks due to ongoing chest pain and shortness of breath.
7. As Associate Professor Adams noted in his report of 23 February 2016, the plaintiff's history as a past heavy smoker and other major risk factors for coronary artery disease meant that the plaintiff was already a subject with a known coronary artery disease, although without ongoing ischaemia or heart failure. The plaintiff himself conceded in cross-examination that part of the problem was that he continued to smoke after the operation: "Q. As at May 2015, there's a letter dated 7 May 2015, a Dr Renganathan, and he has informed Dr Curoz that you told him that you continued to smoke occasionally. Is that right? A. Yes. Smoked after. I stopped for 4 months, after the operation, stopped for 4, 5 months, went back to it. When I start smoking again, and every time I feel bad in my heart, I go to the hospital, I quit it for good. Now it's been one year I never touched it. Q. When was the last time you smoked? A. 1 year now." (T 84)
8. The plaintiff's lifestyle appears to have been contributed to these factors, as he was upset about no longer being able to eat junk food: "Q. Is that because you have to have a low sugar diet or a low‑‑ A. It's because they gave me, they told me you have to take cholesterol and Cartia and I don't know, some because of my condition. KETTLE Q. Right. A. So I couldn't go back to junk food. HER HONOUR Q. Right, so you had to give up junk food. A. Yes. Q. Was that perhaps because of your health generally rather than because of this procedure? A. It's because of the procedure. Q. It's because of the procedure you had to give up junk food? A. Yes. Q. Who told you that? A. The dietician because they sent me to another doctor to see dietician and she told me that you can't have this, you can't have that. You have to, she put me on some program, what to eat and what to have." (T 83)
9. In physical terms, Associate Professor Adams states, and senior counsel for the plaintiff appears to concede, that the plaintiff has suffered very little loss in terms of cardiac function; the most important consequence is loss of left ventricular function which was lost before the heart attack but which is now normal. Although he suffered reduced cardiac capacity following surgery, he has now made an excellent recovery. Associate Professor Adams did not consider that the plaintiff was limited physically by his cardiac issues. Associate Professor Adams does not attribute the plaintiff's ongoing physical disabilities to the angiogram in that he had excellent cardiac function which does not prevent him from walking or performing physical or social activities of the kind he enjoyed before the accident.
10. The plaintiff answers this by arguing that, while "it may well be that he is capable of doing more" (written submissions, paragraph 30), the plaintiff is unable to do so because of his fear of a further heart attack.
11. The defendant relies upon the report of Dr John Champion, whose report painted a completely different picture from the gloomy prognostication of Dr Teoh. He described the plaintiff's general presentation as follows: "1. Mr. Zora gave his date of birth as the 10/7/1961 making him 55 years of age. At the outset of the examination Mr. Zora greeted me with some enthusiasm and said that he was pleased to arrive on time as he had found it difficult to locate the office. The conversation continued for a minute or so during which Mr. Zora demonstrated a bright affect, laughing easily in conversational fashion. 2. Mr. Zora told me that currently he was in a defacto relationship which had been stable for about three years. Mr. Zora cared for his two children from a previous marriage, a son aged 17 and a daughter aged 15 who were attending school regularly and lived with Mr. Zora at his home. His partner, who had three children, all sons aged 15 (twins) and 20, lived with her children in her own home. Mr Zora explained in detail, and with some humour, that when they had all tried to live together there were just too many people for one house, "7 people". The relationship he said was supportive."
12. When Dr Champion asked about the plaintiff's sleep problems, he said that this had occurred "only in the last two months" (paragraph 10). Dr Champion noted that what he called the "bright affect" was a feature of the plaintiff's "fairly engaging personality" and was not a form of psychiatric disorder.
13. The plaintiff told Dr Champion that his relationship had not been as happy after the operation: "13. He said that however, following his heart attack the relationship had not been as happy and went on to tell me that this was because, following the heart attack, he had been advised to give up smoking cigarettes. He had previously been a long term smoker and had smoked one to two packets per day for many years and when he had ceased totally he became angry and irritable, "not like my usual self". He described being very angry with family members over this time which he said, had lasted about three to four months. Because of his irritability and anger, he had taken up smoking again. His medical advisors had again warned him that following the heart attack this was dangerous and he had again ceased after smoking for about five months. For the last two months he had had no cigarettes at all."
14. Dr Champion noted that the plaintiff socialised regularly with friends at a coffee shop, and took an interest in current affairs. The plaintiff told Dr Champion he regarded himself as someone who had always been happy but since his heart attack he had changed because he was "now afraid of having another heart attack and was weak". He had consulted a psychologist, a Ms Renee Dinkha, on a two weekly basis over the previous six months. He had found these consultations helpful but had stopped attending in about February 2016. He told Dr Champion that "he had received advice from "my advisors" who said "don't see them again"." When asked which "advisors" he was referring to, according to Dr Champion, "he became quite vague and could not provide any answers".
15. No reports from Ms Dinkha were served.
16. Dr Champion questioned whether the plaintiff had in fact been told by cardiologists to avoid any form of physical stress which apparently included work on the basis this would be contrary to normal cardiac rehabilitation measures and advice (paragraph 47).
17. Dr Champion concluded his description of the plaintiff as follows: "51. The affect displayed at examination was normally responsive to the matters under discussion and overall gave no indication of depressed affect. Mr. Zora did not appear anxious. There was little confusion concerning chronology but overall cognitive function was normal (not specifically tested). There was no indication of the presence of other signs of any psychiatric disorder (delusion, hallucinations, mood disorder). Overall Mr. Zora complained of being worried and depressed, however the presentation as described throughout was completely at odds with that claim."
18. Dr Champion's conclusions was as follows: "52. Comment: On the basis of his presentation, there was no reason to conclude that Mr. Zora was currently suffering with any form of Psychiatric Disorder."
19. Dr Champion was critical of comments by the general practitioner about chronic depression and related family problems, noting this appeared only in one record of consultation and that there was no indication of any form of medication prescribed for the plaintiff.
20. Dr Champion concluded that while symptoms complained of by the plaintiff included sleep disturbance, excessive worry, irritability, angry behaviour and concerns for his future, he had not been prescribed any medication and, apart from some brief notes from his general practitioner referred to above, there was no mention of any psychological reactive disorder as directly related to the cardiac events. The plaintiff had presented with an organised and fully responsive manner, provided detailed commentary in narrative fashion, and had not demonstrated any anxiety, depression or other form of psychiatric disorder. His claimed mental health symptoms were "vaguely described" in that he gave two explanations for his irritability and angry behaviour, one of which was that he gave up smoking and the other of which was that he was worried about further heart attacks.
21. Dr Champion concluded: "82. From the psychiatric viewpoint, there is no history to suggest that Mr.Zora is other than a psychologically normally resilient individual who has background history of unsettled displacement in his earlier years and what seems to have been recent problems in his current defacto relationship possibly on the basis of each partner's need to care for their own children in limited accommodation. This seems a possible basis for the comments provided by the general practitioner in relation to family stressors. 83. Overall I do not consider that Mr.Zora has a currently diagnosable psychiatric disorder, on the basis of presentation, history or treatment received. At most, Mr.Zora may be experiencing a normal emotional reaction to the events that he experienced in 2014. The fact that these events have now become the focus of compensation litigation, is likely to be producing a significant current focus upon disability which is likely to resolve when legal matters are resolved. 84. Given the recent change of general practitioner, psychologist and cardiologist, and the reported injuries associated with the motor vehicle accident of September 2012,1 believe it is prudent at this stage to provide only a provisional diagnosis of no current psychiatric disorder, until reports and notes from the current treating team and any reports relating to claims of a mental illness arising from the 2012 motor vehicle accident are available for review. 85. It is fair to say however that I do not believe that it is likely that those documents, when reviewed, will provide information likely to cause me to reconsider the above provisional diagnosis (no current Psychiatric Disorder, a normal emotional response to current circumstances). I note the current circumstances may include some continuing family problems associated with the difficulties of living separately and of Mr.Zora's continuing attempts to cease smoking on a permanent basis and the stress of current litigation. Pre-existing mental health problems resulting from the 2012 motor vehicle accident may need to be taken into consideration."

Reconciliation of the reports of Dr Teoh and Dr Champion

1. As the above extracts show, the report of Dr Teoh is terse to the point of being epigrammatic. Apart from the section "Mental State Examination" set out above, there is no analysis capable of exposing Dr Teoh's reasoning for his diagnosis and prognosis on page 4 of his report. Some of his conclusions are difficult to reconcile with the facts. For example, Dr Teoh recommends that the plaintiff would benefit from seeing the counsellor, in circumstances where he is clearly unaware that the plaintiff had in fact been seeing a counsellor, whose reports were not provided to him. He makes no recommendations as to what medication, if any, would be appropriate. He notes that the plaintiff has been taking Mogadon for sleeping. The plaintiff did not give that evidence and did not tell Dr Champion that he was taking Mogadon. I also note that the plaintiff told Dr Champion that his sleeping problems were of comparatively recent origin.
2. In Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at [56], Heydon JA notes that it is the prime duty of experts in giving opinion evidence to furnish the court with criteria "enabling evaluation of the validity of the expert's conclusions". The court cannot weigh and determine the probabilities for themselves "if the expert does not fully expose the reasoning relied on" (at [67], citing Ramsay v Watson (1961) 108 CLR 642 at 645). Heydon JA follows this with a discussion of difficulties with psychiatric evidence in Steffen v Ruban [1966] 2 NSWR 622. For the court to arrive at an independent assessment of conflicting opinions and their value, the basis of those reports must be explained. In this regard, Heydon JA noted the statements of Lawton LJ in R v Turner [1975] QB 834 at 840: "Before a court can assess the value of an opinion it must know the facts upon which it is based. If the expert has been misinformed about the facts or has taken irrelevant facts into consideration or has omitted to consider relevant ones, the opinion is likely to be valueless. In our judgment, counsel calling an expert should in examination in chief ask his witness to state the facts upon which his opinion is based. It is wrong to leave the other side to elicit the facts by cross-examination."
3. Unlike Dr Teoh's unhelpfully brief report, Dr Champion had set out at length not only his observations and a running commentary but an analysis of consultation notes from Fairfield District Medical Centre, the referral by Dr Y Mohammed under a Mental Health Plan, the absence of any prescription of any form of medication, the motor vehicle accident the plaintiff suffered from in 2012 and the fact that the plaintiff had had counselling but had been told by unknown persons to stop.
4. The failure of Dr Teoh's report to expose the reasoning and referred to these aspects of the plaintiff's previous medical history substantially undermine its value to the court. Dr Champion's opinion that the plaintiff does not have a currently diagnosable psychiatric disorder, which is based on his presentation, medical history and treatment he has received, indicates that the plaintiff has at best experienced a normal emotional reaction not only to the events in 2014 but to essential health adjustments he has had to make in his life such as giving up smoking and junk food. In those circumstances, I accept the submissions of the defendant that the evidence points clearly to the plaintiff's focus upon his disabilities as being "likely to resolve when legal matters resolve" (submissions on quantum, page 6). There is no evidence of what the defendant refers to as "coronary neurosis" and no indication from his current presentation or complaints that his problems would warrant such a diagnosis.
5. This conclusion is further supported by the following: 1. The plaintiff's complaints of being depressed and suffering from insomnia were recorded prior to surgery as well as following. These include: 1. Early records in 27 July 1991 from Dr Sanki, where the plaintiff was described as suffering from depression and insomnia (Exhibit 1, p 199); 2. A reference to "anxiety, irritability" in a 19 September 2012 medical certificate (Exhibit 1, p 282); 3. On 10 December 2012 the plaintiff's general practitioner noted the plaintiff as suffering from chest pain, insomnia and noted "tense", and the plaintiff being "unable to relax" following his motor vehicle accident (Exhibit 1, p 205); 4. A summary of injuries the plaintiff suffered following the motor vehicle accident dated 21 March 2013 (Exhibit 1, p 295-296). 1. The plaintiff's own evidence, where he acknowledged that he had resumed swimming, running and walking, approximately six to seven months after the operation (T 82), as well as driving (T 82). 2. I also note the absence of any medical reports from any treating doctor, and in particular from the counsellor he saw.

Conclusions concerning non-economic loss

1. The plaintiff's claim that he has suffered such a severe reaction to the surgery that he is unable to perform tasks because of his intense worry, which he is physically capable, would require me to prefer the report of Dr Teoh to that of Dr Champion which, given the defects in Dr Teoh's report, I am not prepared to do.
2. The plaintiff's pre-existing heart disease and risk factors (notably smoking) meant that the plaintiff would quite likely to have suffered a heart attack later in life in any event.
3. I accept the diagnosis of Dr Champion that the plaintiff suffered a normal emotional response to what was a traumatic event, but one which contains no recognisable psychiatric diagnosis.
4. Contrary to the usual practice of the court, Mr Cranitch SC did not provide a schedule of damages in accordance with the Standard Orders for Hearings, although he handed up a handwritten summary of out-of-pocket expenses containing notes such as "Doctors paid by Medicare". When pressed, he submitted that the plaintiff's non-economic loss would be between 30% and 33%.
5. By contrast, Mr Kettle provided the court with comprehensive written submissions in support of a submission that the appropriate assessment for non-economic loss of the most extreme case for the purposes of s 16 Civil Liability Act 2002 (NSW) is 18%. Given the helpful and detailed explanations of the defendant's medico-legal expert and my observations of the plaintiff as a witness, I consider this to be a realistic and appropriate figure to award. Accordingly, if I had awarded non-economic loss, I would have awarded 18% of the most extreme case for the purposes of s 16.

Past and future out-of-pockets

1. The plaintiff claims the use of the following medication: 1. Cartia - one 100mg tablet per day at $3.99 per 28 tablets; 2. Atorvastatin Sandoz - one 400mg tablet per day at $13 per 30 tablets; 3. Perindopril - one 4mg tablet per day at $20.55 per 30 tablets.
2. Mr Cranitch SC's handwritten note was as follows: "Pl claimed OP's GP expenses - 20 x 37 - $740 Specialist - 20 x 20 - $4,000 Psychologist [illegible] - 12 x 100 - $1200 Other - 4 x 100 - $400 Taxis 3 mth to attend Dr's - $2000 Medication $25 per mth Past - $625 Future 30 years - $6,000 Ambulance x 2 - $800 Doctors paid by Medicare"
3. This contains both past and future out-of-pocket expenses. The claim for taxis was withdrawn, as there was no evidence that the plaintiff had taken taxis. The claim for ambulances was also abandoned, as no accounts could be provided.
4. Review of medical records from the plaintiff's general practitioner shows the development of a mental health plan, but without any reference to medication, including sleep medication such as Mogadon.
5. Mr Kettle submits, and I accept, that the plaintiff was likely to have treatment by statins in any event, that he had a history of insomnia and anxiety, that the claim for out-of-pocket expenses is inadequately particularised and that while the sums set out in Mr Cranitch SC's handwritten note are "mathematically agreed", there is an absence of reports from treating doctors and medication expenses likely to have been required.
6. In Dybka v McKenzie [2002] NSWCA 171, the Court of Appeal noted a defendant had failed to disentangle the skein in relation to past out-of-pocket expenses and considered that the expenses sought should be allowed in full. However, the inadequacies of the plaintiff's summary of past and future out-of-pocket expenses are such that it is impossible to guess. If I were to award damages, I would allow a modest component for past out-of-pocket expenses in the region of $5,000.
7. As to future out-of-pocket expenses, as noted above, I propose to disregard Dr Teoh's recommendation of fortnightly counselling for six months (the total of $3,250) and prefer to accept the defendant's medico-legal evidence as to the plaintiff's wellbeing in the future.
8. The defendant estimates ongoing medical cost of $5 per week attributable to the plaintiff's heart attack ($5 x 827.9 equals $4,139.50). Consistent with my findings as to causation, if half of the present drug regime is likely to result when the plaintiff's present anxiety that would result in future treatment costs of $2,069.75.

Past and future economic loss

1. The plaintiff never brought a claim for economic loss. His statement of particulars, filed on 24 July 2015, contains no reference to any claim for economic loss, and subsequent correspondence made no mention of this issue.
2. For the reasons set out above in my judgment, the plaintiff's application to amend the statement of particulars to claim economic loss was refused.

Past and future care

1. Section 15 Civil Liability Act provides that no damages may be awarded to a claimant for gratuitous attendant care services unless they are provided for at least six hours per week for a period of at least six consecutive months. Such evidence is generally provided by an occupational therapist. Ms Ardinghi, in her clear and succinct report, identifies only a period of twelve weeks.
2. As to past care, the plaintiff called no evidence from his family as to assistance. Before the plaintiff's surgery, he conceded he never did anything around the house (T 45). As a result of changes in relation to the care of his children (the plaintiff's partner lives overseas), he now lives with them and carries out many household tasks.
3. The plaintiff clearly was significantly unable to care for himself for the period identified by Ms Ardinghi following his discharge from hospital. However, he was then able to perform lighter tasks such as personal care and hygiene. He went back to driving a car without difficulty (T 46). His evidence was that he had retained professional mowing services for $2,975 (no receipts are provided) but there is no evidence this is related to his heart condition, and according to the plaintiff's evidence his son is helping with this work.
4. This evidence is insufficient for the plaintiff to establish a need for care: Hill v Forrester [2010] NSWCA 170.
5. A claim for future care was abandoned.

Orders 1. Judgment for the defendant. 2. Plaintiff pay defendant's costs. 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: 22 December 2016