Green v Chenoweth
[1996] QDC 333
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- Green v Chenoweth[1996] QDC 333
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Green v Chenoweth[1996] QDC 333
Green v Chenoweth[1996] QDC 333
IN THE DISTRICT COURT HELD AT BRISBANE QUEENSLAND | Plaint No. 1995 of 1994 |
[Before Robin Q.C., D.C.J.]
[R.P. Green v. J. Chenoweth]
BETWEEN:
ROBYN PATRICIA GREEN | Plaintiff |
AND:
JOHN CHENOWETH | Defendant |
REASONS FOR JUDGMENT
Reasons for Judgment published: 26th November 1996
Catchwords:
Torts - negligence - medical practitioner's alleged failure to warn plaintiff properly of risks of operation - myomectomy (removal of growth in wall of uterus) - risk of adhesions with consequences including alleged impairment of fertility - plaintiff failed to prove that advised as she claimed she should have been, she would more probably than not have refused operation - damages assessed on basis plaintiff underwent operation without her informed consent
Damages - claim for loss of earnings to trial and future loss of earnings - plaintiff's taking voluntary redundancy found to be unconnected with problems attributed to defendant's negligence.
Counsel: | J. McDougall for Plaintiff S. Williams Q.C. for Defendant |
Solicitors: | Gilshenan & Luton for Plaintiff Flower & Hart for Defendant |
Hearing dates: | 14-18/10/96 |
REASONS FOR JUDGMENT - ROBIN Q.C., D.C.J.
Delivered the 26th day of November 1996
The plaintiff sues the defendant for damages claimed to have been suffered by reason of “negligence....in and about his administration of medical treatment”. The defendant performed a myomectomy upon the plaintiff on 7th October 1992 for the purpose of removing a fibroid growing within the wall of her uterus; at surgery it was discovered that two further fibroids were present, which were also removed. The plaintiff is dissatisfied with the outcome, complaining of:
“1. short term post-operative symptoms of significant abdominal pain;
- operative scarring;
- post-operative symptoms of persistent abdominal pain resulting from adhesions including:—
3.1 a large omental adhesion from just below the umbilicus to near the bladder;
3.2 an adhesion between the bladder and the anterior abdominal wall;
3.3 on the left side of the uterus;
3.4 between the right tube and ovary;
- adhesions were divided by laparoscopy on the 31st January 1994 being multiple adhesions of the omentum to the anterior abdominal wall and the lower abdomen together with adhesions to the uterus;
- and will continue to suffer from adhesions of a similar type;
- out of pocket expenses and economic loss.”
Her case is that the abdominal pain has persisted. The evidence establishes the adhesions pleaded in paragraph 3, and that they were the result of the defendant's surgery. Whether any abdominal pain the plaintiff presently suffers or has suffered is attributable to the adhesions is very much in contest; her witness Dr. Molloy, who has carried out procedures subsequent to that pleaded to divide adhesions, is of the view (26th March 1996, Exhibit 43) that the plaintiff's pelvis “now looks in really quite good condition.” The medical evidence shows that adhesions sometimes are capable of producing a “twisting” sensation detectable by a patient, also that individuals vary greatly in their prone-ness to develop adhesions after internal surgery.
In the end, the plaintiff did not proceed with pleaded allegations that the defendant was negligent in the techniques selected (or not selected) by him to perform the operation or in failing to advise her of alternative “treatments” that were available. She had, but was not receptive to, advice from the defendant (and before him Dr. Popper) that nothing ought to be done as the fibroid in question could be expected to get smaller with the approaching onset of menopause. Prescription of the contraceptive pill was actually tried, the side effects being unacceptable. The plaintiff knew from Dr. Popper that hysterectomy was the indicated procedure if surgery was required. Such was Dr. Popper's advice, when she was consulted after investigation of the plaintiff's complaints of abdominal pain revealed the fibroid as an incidental finding. The plaintiff says, and I accept, that she was opposed to hysterectomy because it would destroy her fertility. Her evidence regarding the hypothetical question of the conditions under which she would have agreed to a hysterectomy was unsatisfactory, at one point being in effect that she would have required assurance that the fibroid was cancerous. It is difficult to accept she would have been quite so resistant to the procedure.
The medical witnesses seemed to find it difficult to empathise with the plaintiff's determination to preserve her fertility, and have a baby if the opportunity arose. She was peri-menopausal in 1992 when the fibroid was detected; the myomectomy was performed on 7th October 1992, nine days before the plaintiff turned 47; she said she was willing to comply with advice to avoid sexual intercourse for 6 months after the operation; she had never had a sexual partner and no prospect of one was shown; by March 1993, as established by a blood test, the plaintiff was post-menopausal and finally infertile. (I may note at this point that there is no medical evidence that the myomectomy had the consequence of comprising the plaintiff's fertility; she made such a claim, on the basis of “instinct”, in reaction to the reporting of adhesions by Professor Jones. In the circumstances, it is not possible to find that the myomectomy in the event compromised the plaintiff's fertility.)
On the evidence, myomectomy is a procedure notorious for causing adhesions, because bleeding may be so difficult to control. In this regard, hysterectomy is a preferable procedure. The evidence disclosed certain techniques for controlling bleeding in myomectomy, but there seems to be none which finds general favour, and techniques which have been employed have been under review because of doubts about their efficacy.
Ultimately, the plaintiff's case came down to being that she would not have undergone a myomectomy if the defendant had given her proper advice.
All sorts of things may go wrong in surgery. The particular warning, which the plaintiff claims ought to have been given but was not, appears from paragraph 7 of Mr. McDougall's printed outline of submissions:
“It is the Plaintiff's case that had she been warned of the risks of adhesions and their consequences, in particular, the risk to her fertility posed by adhesions, she would not have proceeded with the myomectomy. It is the Plaintiff's case that she was not warned of the risks of adhesions at all by the Defendant and in particular she was not warned of the possible compromise of her fertility posed by the adhesions.”
It is for the court, rather than medical opinion, to be the arbiter of what warnings ought to be given. The effect of Rogers v. Whitaker (1992) 175 CLR 479 appears clearly from the headnote:
“Except in the case of an emergency or where disclosure would prove damaging to the patient, a medical practitioner has a duty to warn the patient of a material risk inherent in proposed treatment. A risk is material if, in the circumstances of the particular case, a reasonable person in the patient's position, if warned of the risk, would be likely to attach significance to it or if the medical practitioner is or should reasonably be aware that the particular patient, if warned of the risk, would be likely to attach significance to it. The fact that a body of reputable medical practitioners would have given the same advice as the medical practitioner gave does not preclude a finding of negligence. Generally speaking, whether the patient has been given all the relevant information to choose between undergoing and not undergoing the proposed treatment is not a question the answer to which depends upon medical standards or practice.”
The evidence shows that reputable medical opinions vary as to the appropriate warning in the present case.
Professor Jones, whose views have changed considerably because the plaintiff's experience has alerted him and others to the previously unanticipated extent of adhesions following myomectomy so that his present practice would be to give more information, said at 198:
“The normal advice I would have given a patient in 1993 would have been the risks of bleeding during the surgery, possibly necessitating removing the uterus to control the bleeding. I would have warned them about the possibility of bowel sticking on to where I'd been operating, but I have to be honest and say that I would not have warned them about adhesion formation, because, in my experience up until that time, it wasn't a common problem. I have also learned a lot from seeing Miss Green and my advice now, it does include the formation of adhesions and I certainly teach it now, whereas previously I didn't.”
The warning given by Professor Jones regarding the risk of blocking the bowel by adhesion referred to the likelihood this would have to be treated by a second operation 7 to 10 days later to free up the relevant part of the bowel. At 200 Professor Jones' evidence contains the following:
“In a patient of Miss Green's age and circumstances, would you have offered any additional warning in relation to the possibility of impairment of her fertility either temporarily or permanently?-- In 1992, no, I wouldn't have.”
Fortunately, the complication which has all along concerned Professor Jones did not arise.
Dr. Molloy's evidence contained the following:
“Doctor, in 1992 was it your practice to warn patients of the risk of adhesions in the performance of myomectomy?-- Yes, that's correct.
What were the risks you warned of?-- I generally warned the patient if they're having a myomectomy - do you mean the general warning that I gave patients or just in relation to that?
Just in relation to adhesions?-- Okay. I generally would say, adhesions are common after myomectomy.”, or words to that effect. These - a lot of my practice relates to patients having fertility problems and trying to get pregnant, so I specifically used to warn that this may put future fertility at risk because of distortion of pelvic structures. I very rarely warn about long-term pain or other complications of adhesions.
Are they complications nevertheless of adhesions?-- I believe that in some cases this is so.
Doctor, if your patient was or had expressed to you a particular concern about her fertility, would that make it more important to you to warn her of the risks to her fertility as a consequence of adhesion?-- Yes, that would be so.”
He said (p. 143-44) that if the patient's fertility is an important issue he almost routinely offered “second-look laparoscopy” to free adhesions promptly but went on to indicate that would not be appropriate in the case of a post-menopausal patient.
Dr. Popper said she would “probably” have warned a patient of risk to fertility from adhesions if the patient rejected hysterectomy but considered myomectomy and expressed a desire to preserve her fertility (p. 122). She said at the following page that she did not see fertility as a real issue in this case and that she thought the plaintiff was being unrealistic. Dr. Popper said she would have warned of a risk to fertility by adhesions in 1992 if she were performing myomectomy to try to preserve fertility. Her cross-examination went on (125):
“By that do you mean in a much younger woman where fertility was a issue - real issue?-- If fertility were the reason for the removal of the fibroid, yes.
If one if removing a fibroid to preserve fertility, am I correct in assuming that the risk associated with infertility from the procedure is less than the risk of the fibroid remaining in the womb to affect fertility?-- Depends on the position of the fibroid.”
Dr. Adam said in chief that in 1992 it was his practice to warn a patient concerned to preserve her fertility of the risk to her fertility which adhesions, as a consequence of a myomectomy, might pose.
In cross-examination at p. 178, considering the scenario (which applied here in the end) that the fibroid was thought to be growing, Dr. Adam gave this evidence:
“What's the advantage of a hysterectomy in those circumstances?-- Well, I believe in that age group that there's little point in conserving the uterus and that I think a straightforward - a hysterectomy might have been a more straightforward operation, I believe, with lower risks of complications such as adhesions and if there was a risk of malignancy in itself then I think that would have added a safety margin in terms of treatment, but having said that, you know, I think that myomectomy is better than doing nothing.
That's a decision for the patient, isn't it, to decide?-- Yes. I think that the patient has input into that. I might have preferred not to consider the myomectomy, though.
If the decision is then made to undertake a myomectomy, you've indicated you would advise in relation to the risk of adhesions, is that so, from a myomectomy?-- Yes.
And that would be a warning you'd give the patient. In what terms would you ordinarily give that warning?-- I would point out that it's an operation that I don't like very much, that it has a risk of adhesions as one of the complications of the operation and that risk would be higher than it might following other types of operations.
Such as a hysterectomy?-- Yes.
Myomectomy is a procedure which would ordinarily be done on a younger woman?-- Yes.
For the purpose of preserving fertility?-- Yes.
Is that so? I assume you have done myomectomies in those circumstances?--Yes, I have.
And in those circumstances has it been your practice to warn of the potential complications so far as fertility is concerned from adhesions?-- Yes, because one of the reasons for doing the operation would be to conserve fertility, so that is a point that I would discuss.
You would, I take it, say to the patient, “Look, we're doing this to take this myoma off your uterus to preserve your fertility, but there is a risk of impairing your fertility.”?-- Yes.
Is that an appropriate comment to make in relation to a peri-menopausal woman?-- No, I don't think I would have raised that in those circumstances.
It simply wouldn't have been an issue?-- It wouldn't be an issue and the lady was, I think, 47.”
Recent authorities indicate that surgeons are now in an era demanding counsel of perfection. The present cannot be regarded as a case of “emergency” as referred to in Rogers v. Whitaker (witness the leisurely approach whereby the operation was considerably delayed after the defendant's finally recommending it); nor does the evidence show that disclosure of risks in this case would have been damaging to the plaintiff. The defendant did not suggest he withheld any information for fear of causing her distress or worry. One suspects that when surgeons, as they are now effectively compelled to do, pursue the counsel of perfection and advise fully of risks proposed procedures entail, there will be many extremely anxious candidates for surgery. The controlling principle, however, is that against the possibility of the worst happening, the surgeon must ensure the patient is adequately informed of all risks which are objectively significant, or which would appear significant to the particular patient, subjectively. In Rogers v. Whitaker, it was held that a patient ought to have been informed of the tiny risk that surgery to her useless eye might result in loss of sight in her good eye: she had made clear her fear that by mistake her good eye might be “touched”. The case was referred to in the Western Australian Full Court decision in Teik Huat Tai v. Saxon (23 of 1995, 8 February 1996, Butterworths Unreported Judgments BC9600521). This is an interesting example of the detailed disclosure of risks which may be required. The surgeon did not disclose the relevant risk (of hysterectomy and vaginal repair resulting in a fistula and leakage of faeces through the vagina) because:
“Mrs. Saxon was very anxious patient and I felt that to warn her about a remote possibility will just cause more anxiety to her”.
It was just because the lady was so anxious that the Court held she ought to have been told of that risk in circumstances where there was a finding that if she had been she would not have had the elective surgery. Ipp J. for the Full Court said:
“Counsel for the appellant placed particular reliance on this testimony. He submitted that the risks of firstly, a perforation of the rectum or bowel occurring, and, secondly, an infection developing, followed by a fistula with consequential leakage through the vagina, were very remote. He argued that the remoteness of the risk had to be coupled with the fact that the consequences of a fistula with concomitant leakage were relatively insignificant: it was said that the respondent's condition ‘was never life-threatening, it was only very transitory and it was only ever going to be for a very short time.’ Counsel drew attention to the evidence from the medical experts that risks of a general nature involved in the operation undergone by the respondent were ‘cardiac arrest, pneumonia, deep vein thrombosis and pulmonary embolism.’ The particular risks were said to include ‘pelvic haematoma, abscess, septicaemia, urinary infection, injuries to the bowel, bladder and ureter, vaginal stenosis, and recurrence of the prolapse.’ According to Dr Kingsbury, ‘all of these are more likely or as likely as the development of a recto-vaginal fistula.’ Counsel submitted that, in the circumstances, if risks such as the possibility of bowel penetration followed by a fistula had to be disclosed by a medical practitioner to a patient, there would be no end to the kind of disclosure that would have to be made by doctors to their patients. He submitted that it was simply not practical for medical practitioners to disclose every minimal risk to their patients.
In my opinion, however, the submissions so made erroneously undervalued the significance of the risk involved to the respondent in this case.
The significance of the risk had to be assessed in accordance with the principles expressed in Rogers v Whitaker. In that case the majority agreed that the factors referred to by King CJ in F v R (1933) 33 SASR 189 at 192-193 must all be considered by a medical practitioner in deciding whether to disclose or advise of some risk in a proposed procedure. Those factors were said to include the temperament and health of the patient (that is, physical and mental), ‘the existence of emergency conditions, the absence of opportunity for detached reflection or calm counselling and the existence or alternative sources of advice.’
In general terms, the significance that is likely to be attached to possible consequences of medical treatment that are potentially harmful would ordinarily depend on the magnitude of the risk, the nature of the potential harm, the need for the treatment itself (which would involve consideration of alternative measures), and the physical and mental state of the patient. All these factors have to be taken into account and weighed in the balance. Thus, for example, the possible remoteness of the risk has to be weighed against the potential gravity of the possible consequences. The more the remote the risk the less the need to impart information concerning it; on the other hand the more serious the possible consequences, the greater the need to make an appropriate disclosure. The need or otherwise of the proposed procedure is highly relevant. One extreme could be treatment required to preserve the life of the patient. At the other extreme would be, for example, minor cosmetic surgery being considered solely for aesthetic reasons. The less urgent and critical the need for the procedure, the greater the need for advice as to the possible risks involved and as to possible different means of treating the problem. In addition, the particular circumstances (both physical and mental) of the patient concerned should be borne in mind.
At the very least, the risk of the hysterectomy and vaginal repair resulting in a fistula and leakage of faeces through the vagina was not far-fetched or fanciful (cf Wyong Shire Council v Shirt (1980) 146 CLR 40). The risk was real and was one of which every surgeon was aware. Further, while the procedures in question were likely to improve the quality of the appellant's life substantially, they were not essential for the preservation or prolongation of her life and nor was there any need for urgency in carrying them out. It was not beyond the bounds of reasonable possibility that the respondent might refuse to undergo the operation - after all, the learned trial Judge found that had she known of the risk she would not have agreed to have the operation. Thus, the potential harm to the appellant of a fistula leakage was highly important to the assessment of the significance of the risk.”
There are all sorts of things the plaintiff ought to have been warned about, including that, as mentioned by Dr. Popper, fibroids are likely to be multiple. This trial concerns only the warning set out in Mr McDougall's submission. I am content to assume that it ought to have been given.
The plaintiff says she was given no warning of possible risks whatever except at the end of her consultation with the defendant on 18th August 1992. She first saw him on 17th March 1992. Dr. McAdam was the G.P. who had referred her to Dr. Popper who:
“Said if I wanted anything done about it I'd have to have a hysterectomy and there's no way that I would have a hysterectomy...but I would like something done about (the fibroid) that wouldn't be so drastic”. (p. 18 of transcript)
This was reported to Dr. Treston, another G.P., who referred the plaintiff to the defendant (I find this was done after Dr. Treston had discussed the pros and cons of both hysterectomy and myomectomy). The defendant explained to the plaintiff the availability of myomectomy and the procedures undertaken in it. The decision made was to observe the fibroid, which was asymptomatic, and see how things went. The defendant's notes suggest a scan was planned after 3 months. In the end, in May, when the plaintiff, to use her words, “had totally skipped one or two periods and....was concerned”, an ultrasound investigation was performed by Dr. Cooper preparatory to another consultation in the defendant's rooms on 28th May 1992. The fibroid seemed to be growing; the plaintiff wanted it “out” but not by hysterectomy. I would prefer the doctor's notes to the effect that both hysterectomy and myomectomy were mentioned at that consultation to the plaintiff's recollection that the former was not. At the next consultation in the doctor's rooms on 18th June 1992, he prescribed an oral contraceptive pill for the plaintiff. That was not proceeded with in light of side effects, which the plaintiff reported 4 weeks later by telephone. The defendant recommended a myomectomy, in light of his diagnosis that the fibroid was growing, when he next saw the plaintiff on 18th August 1992. The plaintiff's evidence-in-chief was:
“Did you discuss a myomectomy at that time?-- We didn't discuss it, no. I just basically said I was prepared to go ahead with the surgery that he had offered in the first visit.
Did he say anything to you at all about risks associated with that surgery at that visit?-- No, except as I was leaving.
What did he say then?-- As I had got up and he was standing up and he said that, ‘You know that if everything's not okay, if there's a mess inside or everything wasn't okay that you would have to have a’ - he would have to do a hysterectomy.
Did you make any response to that?-- I said to him, ‘But I know there's nothing wrong so there won't be any necessity for you to do a hysterectomy because I know everything's fine’.
Prior to you leaving on that day, had you discussed the date of the operation with Dr Chenoweth?-- No. He had just filled in the form for me to send into the Wesley and he said, ‘You decide what day you want to go and just send it in. It's up to you.’
Did he suggest to you there was any urgency about-----?-- No.
---- surgery?-- No. None whatsoever.
Is it the case that you chose 7 October 1992 at the date of surgery?-- That's correct.”
The warning set out in that passage, the plaintiff says, is the only one she ever was given.
Her cross-examination by Mr. Williams QC confirms her confident attitude:
“Were you aware of the risk of a less than fantastic result?-- No.
You didn't think that was even possible?-- I knew I would be in pain because it would be cut. That is about it. That is the only complication that I was aware of. I was never advised of anything, you know, that anything could go wrong.
You were never advised that anything at all would go wrong?-- He advised me on the last visit that if things were wrong inside that he would have to do a hysterectomy - that he would probably have to do a hysterectomy.
Would that be a complication to you?-- Not really. I said to him - I just said to him, I know you won't have to do one because there is nothing wrong with me, there's nothing else wrong’, so I thought he was just doing that as a legal thing to cover himself.
That was a complication which you were advised about, but which you dismissed?-- That was the only one that I was advised of. And once again he had said it in an offhand manner so I didn't see any reason to take it particularly seriously.
You knew that when you woke up from the surgery there was a risk that you might have had a hysterectomy, didn't you?-- No, because I had enough confidence to know that I really didn't have all that much wrong with me. All I had was a fibroid which to me was equivalent to having a wart removed.
You have a fibroid the size of a cricket ball?-- I had a fibroid about the size of a small orange.”
It is obscure what was said in the four consultations in the doctor's rooms or in an equivalent number of telephone conversations before the operation. In my opinion neither of the parties has a clear idea. The plaintiff's evidence suggests that conversation was extremely sparse, causing one to wonder how the time was passed during the consultations. Perhaps the defendant is closer to the mark. He said (at p. 227) and presumably in reference to one of the earlier visits:
“We touched on the subject of hysterectomy very often, in my original deposition I made a comment that I couldn't accurately locate this incident to exactly this spot, but the problem with Miss Green in counselling was that she resolutely refused to discuss hysterectomy. So that every time I tried to discuss it she would say ‘which I'm not going to have’, so that it became almost a verbal game of saying ‘the difference between a hysterectomy and myomectomy’ and she'd say ‘which I'm not going to have’ and I would then continue on to try and follow through the train of thought.
I see. Did you, nevertheless, give her a review of the pros and cons of hysterectomy?-- Yes, I did. I felt that I had to do that at least once and so despite almost her protestations of discussing the subject I said to her, ‘Look, I've got to tell you that a preferable option in this case is hysterectomy. The hysterectomy has the clear advantage of completely finishing with the symptoms. It has the disadvantage of finally sealing your fertility. The myomectomy, on the other hand, is an operation designed to preserve your fertility. It has the disadvantage that there is a raw surface in the uterus that other organs can stick to and sometimes a fibroid will recur, although I would hope that in your case they wouldn't recur as it is only going to be a few years before you reach the menopause’.
The reference you made in the course of that answer to a myomectomy leaving a raw surface within the abdomen or within the cavity which other organs may stick to, was that a reference to adhesions?-- Yes, it was.
Was that the only reference you made to adhesions?-- Yes.”
The first paragraph has the ring of truth to me, in the circumstances. I find it somewhat difficult to accept that the speech in the second was made. Mr Williams' reformulation of the warning was influential in the sense that Mr McDougall picked it up in cross-examination:
“Well, have you given - do you suggest the evidence you've given is the precise wording of the warning you've given to Miss Green in relation to the risks associated with myomectomy?-- No.
You don't? You agree that's not it?-- That's not the precise words, no.
All right. You didn't warn about any of the consequences of adhesions, did you?-- No.
Were you asked anything about the consequences of adhesions or can't you recall?--No.
You can't recall, or you weren't asked?-- No, I wasn't asked in that context.
So when you say the only - I think to quote your evidence from this morning, the only discussion you had in relation to adhesions was, “It's open surgery and leaves a raw surface on the abdomen that other organs can stick to”. that's your best recollection is it?-- They're the sort of words that I used.
The sort of words?-- Mmm.
They're the sort of words you normally use for patients?-- Yes.
Do you normally write them down in your notes?-- I do now.
Did you then?-- No.” (Page 249)
The cross-examination regarding myomectomy continued:
“What, you disagree that it is notorious for causing adhesions?-- I don't think it is notorious.
You don't, all right. Because of the location of surgery I suggest to you adhesions put at risk fertility and you knew that in 1992?-- Adhesions to the uterus are unlikely to cause infertility.
What about to the tubes and the ovaries?-- They may.
And that's one of the places where adhesions could occur in this sort of surgery, isn't it?-- I was surprised that they occurred with Miss Green because I wasn't anywhere near those areas.
Nevertheless you didn't warn her of that, did you?-- Of what?
That myomectomy itself can cause complications so far as fertility is concerned because of adhesions?-- No. My concern in warning her of adhesions was the risk of bowel complications.
You didn't warn her of that either, did you?-- I believe I did.
I suggest to you what you said in evidence this morning was “It's open surgery and leaves a raw surface in the abdomen that other organs can stick to.”?-- Yes.
You didn't mention the bowels, did you?-- Not by word. (Page 251)
In the end, my view is that the onus of proof determines the outcome upon the issue whether the warning the plaintiff argues (and I have assumed) ought to have been given was given or not. I did not find the evidence of either witness persuasive. I take the onus of proving the positive, that a warning was given, to be one borne by the defendant. He having failed to satisfy that onus, my finding is that the warning was not given.
It is not appropriate to be critical of witnesses in the difficult situation of trying to recall conversations that occurred more than four years ago, without the benefit of relevant notes. I will set out, by way of illustrating why I have not been able to take the defendant's evidence at face value, some evidence regarding malignancy of the fibroid, an issue which I would think was very much in the minds of both parties, even if specific discussion about it was avoided by them. The defendant's cross-examination included the following:
“Well, why did you wait eight weeks?-- Because I thought there was a possibility that it was malignant. I thought there was a probability that it wasn't.
I see?-- I knew the only way to clarify that was to take it out.
And you didn't discuss with Miss Green those possibilities or probabilities?-- Beyond saying that there was the possibility of a hysterectomy.
That's not really the answer to the question, is it? I suggested to you you didn't discuss with her the possibility or probability of it being malignant, did you, and you say beyond discussing with her a hysterectomy what - how's that relevant to the question?-- I was taking in view my answer from this morning namely-----
What was that?-- As she - as we've completed our last interview I said to her that she needed to have a myomectomy done but she - I would only - we could only go ahead on the understanding that if we met a condition during the surgery that required it to be transferred to a hysterectomy then I would do so and the conditions under which that would occur would be if there was uncontrollable haemorrhage or if malignancy was found.
But you didn't tell her any of those things, did you?-- Yes, I did.
You didn't tell her anything about malignancy; you've already told us that?-- You've stimulated my memory, sir.” (Page 247).
The topic of malignancy was touched on in evidence-in-chief at p. 224, as having been ventilated at the first consultation:
“Your primary advice was that there's probably no need for surgery at this stage and then she raised with you myomectomy?-- Yes. I then went on to say to her that the conditions under which a fibroid should be removed would be if she had developed symptoms from it and bleeding or further bladder aggravation, or, secondly, if the fibroid was shown to be rapidly growing because then there is always the underlying worry of a malignancy. I didn't use those words.
What words did you use?-- Fibroids do have - I would have used the words such as fibroids do have a chance of becoming cancerous and a sign of that would be that it was rapidly growing, so one would want to remove a rapidly growing fibroid.” (page 224)
Although the plaintiff succeeds, by operation of the onus of proof, in establishing that a warning of the risk of adhesions compromising fertility was not given, her claim fails in the end because she does not satisfy me that, had she been given such a warning, the probabilities are that she would have declined the myomectomy. Questioned by me as to what motivated her to seek treatment rather than follow Dr Popper's conservative advice to do nothing, the plaintiff (pages 21-22) said she was basically concerned about complications with having a baby which the fibroid might produce; she was not associating the fibroid with abdominal pain that she had. She claimed (page 52 in cross-examination) that at no stage did she ever think the fibroid was malignant. “I didn't have any reason to believe that there was any chance of it being malignant. I had no symptoms, nothing; why would I think it was malignant?” That evidence is given by the plaintiff in the comforting knowledge that examination of the fibroids after removal confirmed they were benign. I am not prepared to accept that the plaintiff never gave a thought to the possibility of malignancy, which in a growth on a woman's uterus is extremely life threatening. I think it is reasonable to attribute to any intelligent lay person, as the plaintiff is, the same concern about any lump inside the body which ought not to be there, which one of the medical witnesses (I think Professor Jones) acknowledged. I do not accept the plaintiff's version to the effect that she underwent myomectomy simply with a view to enhancing the prospects of a successful pregnancy. There seems never to have been any medical advice whatever that a myomectomy was indicated for enhancement or preservation of the plaintiff's ability to conceive and/or carry a child.
She does not persuade me that, advised of the risk she says ought to have been reported to her, she would have refused the operation. There are a number of factors in my approach. In my view, Dr Chenoweth was correctly assessing the situation as at 18 August 1992 when he said (page 230), “I had the feeling by this stage that she had actually wanted this thing out and had wanted it out since the first visit.” The plaintiff had made clear her determination to have the fibroid removed, even though removal might compromise her fertility, given the prospect (well understood by her) that at surgery carrying out of a hysterectomy might become medically necessary. All the medical evidence was to the effect that myomectomy is regarded as a procedure to enhance fertility; the medical practitioners did not see the plaintiff as needing that assistance; knowledge that the procedure might not work in those terms would not, in my assessment, have put this plaintiff off.
I do not accept all of Mr Williams' points in his attack on the plaintiff's credit. However, there are some matters of real concern, such as inconsistencies between her and Dr Treston, Dr Hirst and Dr Mercer in turn, as to matters passing between the plaintiff and each of them respectively. In each case, I would prefer the doctor's evidence. It has been shown that the plaintiff, succumbing to a common human foible, has, in recent years, greatly understated the extent of her medical problems before the myomectomy; those problems including persistent abdominal (including bowel) pain have been very considerable, leading to her undergoing procedures such as endoscopies, colonoscopies (each more than once) and a colposcopy (close to the eve of the myomectomy). There is an indicative list (whose evidentiary status may be a bit suspect) in Exhibit 50. One quite serious matter on another aspect of the case was the plaintiff's insistence, calculated to support claims for past economic loss (exceeding $40,000) and future economic loss ($50,000), on the theory that the defendant was responsible for forcing her out of work and an inability to work again. The plaintiff operated a computer terminal for an airline, which was merged with or taken over by another in circumstances which rendered the plaintiff's work much less congenial to her.
She applied for redundancy in 1992, unsuccessfully, and then successfully in 1993, on 12th February (Exhibit 34). The month before the plaintiff had returned to aerobics, which caused her some problems of pain around the wound, dizziness and nausea. The plaintiff's cessation of work is not shown to have had anything to do with the myomectomy. To the extent she had medical problems, any that procedure might have caused seemed to have been overshadowed by others of longer standing, such as an irritable bowel condition which had caused trouble since the 1980's, leading to colonoscopies, sigmoid-oscopies and endoscopies, and significant right iliac fossa pain, in an attempt to locate which Dr Popper performed a laparoscopic investigation.
The plaintiff did tend to come out with all embracing statements, which she would be driven to qualify when challenged. Her state of mind at trial was contributed to by a belief that there is a conspiracy of the medical profession against her, and a feeling that the defendant, to whom she admitted she became attracted (see her communications to him in Exhibit 35, redolent of both hope and disappointment) had let her down, perhaps most of all by failing to give her an “explanation” of what went wrong in the surgery (which she seems to have thought all along should have been accompanied by compensation). Nevertheless, I thought it was uncalled for and unimpressive for the defendant (perhaps his counsel) to suggest at p. 239 of the transcript that the plaintiff was cultivating some relationship with sexual overtones with his secretary. The plaintiff, if there is anything in this, may have been doing no more than seek to improve her prospects of getting earlier appointments with the defendant. Her attitude to him in 1992 is one (not particularly important) factor going towards my view that she has not shown that warnings of possible complications in the myomectomy would have led her to refuse it. It seems to me she had a high degree of determination to have the fibroid removed, whose presence understandably concerned her greatly.
If the plaintiff had been differently advised by the defendant, there is a chance she would have decided against surgery in 1992, (although other developments, such as the fibroid continuing to grow, might have made some surgery or other imperative). I attempted (transcript pp. 308-09) to encourage Mr. McDougall to submit that the plaintiff might succeed on the basis that lack of a warning effectively deprived her of her chance of saying “no”. Presumably, on this basis, she would recover an appropriate part of the damages she would receive if it were determined she would certainly have said “no”. See Malec v. J.C. Hutton Pty. Ltd. (1990) 169 C.L.R. 638, Luntz, Assessment of Damages for Personal Injury and Death (3rd) 1.9.5, 1.9.6, 2.7.2 and the discussion of “loss of a chance” in McGregor on Damages (14th) 275-80. In such a case, the Court is in the difficult position of having to assess what might have happened in a hypothetical situation in the past. In the end, Mr. McDougall's submission was that the Court's determination whether or not the plaintiff would have refused surgery, if appropriately advised, had to be made on the balance of probabilities, but had “all or nothing consequences”, so that unless the plaintiff showed positively she would have refused the surgery, on the balance of probabilities, her action failed. That is the outcome; notwithstanding the vehemence of the plaintiff's evidence at p. 25 of the transcript (cross-examined upon at pp. 112-114), I am unable to accept what she said.
If the plaintiff had succeeded on this last issue, it would have been necessary to assess damages. It may be convenient that certain findings be recorded here. As appears above, any compromising of the plaintiff's fertility attributable to the myomectomy was always going to be short lived, because menopause supervened. There is, in any event, no evidence that fertility was compromised even temporarily. The plaintiff's intuition to this effect does not suffice. As to the pains which the plaintiff still suffers, described by her at pp. 36 and 37 of the transcript, in light of Dr. Molloy's evidence, as to the plaintiff's situation since the last procedure conducted by him, which has freed all adhesions, these cannot be linked to the myomectomy.
Considered as a whole, the medical evidence justifies Dr. Rodney's view that the plaintiff's chronic pain syndrome commenced prior to the myomectomy. He is not surprised that the myomectomy has led to further exaggeration of her pain syndrome. His report of 24th July 1996 concludes:
“The fact that it symbolically affected her reproductive organs I think is certainly another factor that would tend to an exaggeration of any abdominal pain syndrome.
In conclusion I think the finding that she has had intermittent and chronic pain difficulties before the myomectomy I believe is quite significant. The myomectomy most certainly could have exacerbated this tendency towards chronic pain.”
I am not persuaded that anything brought about by the myomectomy, apart from periods of hospitalisation and recuperation, reduced the plaintiff's employability or was the cause of her decision to terminate her last employment. In Medlin v. The State Government Insurance Commission (1995) Aust. Torts Rep. 81-322 an injured plaintiff who took early retirement voluntarily given his own belief he could not work effectively, was held entitled to damages for loss of earning capacity. Here, the evidence does not show that anything to do with the defendant rendered her less capable of earning income.
Her damages, if she were entitled to any, would include the cost to her of the myomectomy and the half dozen laparoscopic procedures to investigate and free adhesions, together with appropriate compensation for the pain and upset associated with the procedures, and some exacerbation of a pre-existing pain syndrome.
I would assess general damages at $20,000, attributing 80% to the past, which would attract interest of $1,300. So far as special damages constituted by medical expenses are concerned, Mr. McDougall supplied a schedule of the plaintiff's claims which leads to the following summary:
“Medicare | $7,416.45 |
|
CPS | $8,559.20 |
|
Plaintiff | $5,050.08 |
|
| $21,025.73 | $21,025.73 |
Interest on Plaintiff's amount ($5,050.08)
from 7/10/94 at 5% from 7/10/92 to 7/10/96 (4 years)”
There has been no scrutiny by me to verify the subtotals. As I recall, there has been no submission from Mr. Williams challenging them or any component; nor has there been challenge by him to Mr. McDougall's assertion that the amounts contributed by Medicare and the Commonwealth Public Service Health Scheme are refundable by the plaintiff if her action succeeds - it is probably not fair to regard the defendant as having conceded these matters, but, for the moment, I am content to assess special damages in accordance with the claim. I would not accept the claim for the sum for future therapy, given Dr. Rodney's view, which I share, that the plaintiff is not going to agree with him that she needs it.
It appears the result must be an order that the plaintiff's action is dismissed with costs to be taxed. However, the parties will be afforded an opportunity to submit for some different order(s).