Pashley v Sauer
[1999] QDC 70
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- Unreported Judgment
- Appeal Determined (QCA)
- Pashley v Sauer[1999] QDC 70
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Pashley v Sauer[1999] QDC 70
Pashley v Sauer[1999] QDC 70
IN THE DISTRICT COURT HELD AT BRISBANE QUEENSLAND | Appeal No 3947 of 1998 |
BETWEEN:
BRIAN PETER PASHLEY | Appellant |
AND:
TREVOR WILLIAM SAUER | First Respondent |
AND
TREVOR SAUER PTY LTD | Second Respondent |
REASONS FOR JUDGMENT - SAMIOS D.C.J.
Delivered the 22nd day of April 1999
On 9 February 1990 the appellant underwent a vasectomy operation (the operation). The first respondent (the respondent), who is a registered general medical practitioner, performed the operation. In the early hours of the following day, the appellant was admitted to the Redcliffe Hospital. At that time he had a large right hemiscrotal haematoma. On admission his scrotum was some 8 inches round, very bruised and quite tense and painful. At the hospital, the appellant underwent an operation during which an incision was made in the region of the groin and scrotum to allow evacuation of a large clot. Further, a drain was inserted which continued to drain blood for some days and he required a blood transfusion on 13 February 1990 because of symptomatic anaemia due to the blood loss in this large haematoma.
The appellant alleged against the respondent that the bleeding following the operation and subsequent haematoma were caused by the negligence and further or in the alternative breach of contract on the part of the respondent.
The appellant's claim against the respondent was heard by the Magistrate at Brisbane. Before the Magistrate there was no dispute that the respondent owed the appellant a duty of care. Although the Magistrate assessed the appellant's damages in the sum of $31,659.07, the appellant's claim was dismissed on the ground that the Magistrate found that the appellant had not proved a breach of the duty of care owed by the respondent to the appellant. The Magistrate was not satisfied that the respondent was negligent or in breach of the agreement as alleged in the claim, and therefore the appellant's claim failed.
The Magistrate made a number of findings on the evidence he accepted. He found:—
- –The defendant performed the vasectomy operation on the plaintiff in his surgery on the date in question at approximately 5.00 or 5.30 p.m.
- –that when the defendant completed the operation on the right vas deferens, there was a dry field (ie it was not oozing - there was no bleeding) - this is the area which later bled
- –that the defendant did note oozing on the left side
- –that bleeding is a major complication that can occur in these operations and that the defendant was well aware of that
- –that the plaintiff was given appropriate post operative instructions by the defendant, including use of a frozen bag of peas or corn for the swelling, athletic support of right underpants & advice to ring the defendant et cetera as contained in Exhibit 6.
- –that the plaintiff went home and went to bed and several hours later discovered his scrotum was badly swollen and bleeding
- –that the plaintiff went to Redcliffe Hospital in the early hours of the morning after the operation and was operated on by Dr Davies to evacuate a large haematoma
- –that Dr Davies found a bleeding point he believed to be a small nick on the small artery accompanying the right vas deferens (the spermatic cord).
Further, the Magistrate made the following finding:
“I draw the only reasonable inference from this (and there is no other contrary evidence and the defendant in fact is in agreement) that the defendant made a slight cut or nick on the small artery which is attached to or runs along the right vas deferens and that it was that cut or nick that later bled causing the swelling and haematoma.”
The Magistrate also made these further findings on the evidence:
- –that the defendant was a general medical practitioner as at the relevant date in 1990 and that he had performed approximately 7500 vasectomy operations to that time
- –that the defendant professed to have the special skill to do such operations
- –that such operations usually take about 15 minutes
- –that both the right and left spermatic cords (vas deferens) are operated on separately but within the same operation
- –that, for example to operate on the right spermatic cord, the medical practitioner (specialist or GP) uses local anaesthetic around the area, then identifies and isolates the cord near the surface (skin) of the scrotum, makes a small incision, then withdraws the cord out through the incision, separates if possible, the small artery (which is perhaps a millimetre in diameter - perhaps the thickness of the lead of a propelling pencil) away from the spermatic cord which is about 2 millimetres in diameter) - this separation being to take the artery out of harms way. Whilst the spermatic cord is severed and both ends then ligated or heat sealed & then the spermatic cord and artery are placed back inside the scrotum thru the small incision
- –that it really doesn't matter if the artery is severed with the spermatic cord as long as it is ligated or heat sealed along with the cord.
...
- –that is possible to nick the artery attached to the spermatic cord and not knowing that it has been nicked, because the artery could be in spasm at the time due to handling or being touched and thereafter bleeding does not occur.
- –that the artery is divided from the spermatic cord so as to preserve it, if possible, and so that it will not be nicked or cut when the cord is dissected
- –but that the artery can be inadvertently nicked when an incision is being made in the skin of the scrotum prior to extracting the cord for dissecting as the artery can be situated in different places on the cord e.g. on the top or underneath.
- –on balance in such circumstances that if the artery were in spasm and did not bleed then the GP or Surgeon would not know about the nick.”
The Magistrate accepted the respondent's evidence that he closed the relevant incision on a dry field, ie., it was not oozing or bleeding. He stated it would seem inconceivable that a general practitioner with the respondent's experience in vasectomy operations (he had done 7500 at the time) would close on an oozing or bleeding field knowing that such is the major subsequent complication to this operation. The Magistrate was of the view the probabilities of the respondent doing that were almost negligible. Therefore, he made the following finding:
- –It seems to me on the evidence that the probabilities well and truly favour the scenario that the defendant nicked the artery at some stage of the operation (probably when making the incision) without knowing it as it did not bleed because it was in spasm at that time and that he closed on a dry field.
- –on the evidence that there was nothing more the defendant could have done.
- –on the evidence that the defendant exercised the reasonable care and skill of an ordinary person exercising and professing to have the special skill as contemplated in the cases aforementioned.
- –the plaintiff had not proved a breach of duty by the defendant.
The appellant in this appeal submits the Magistrate has made two errors:—
- (a)firstly, he erred when he found that the respondent nicked the artery probably when making the incision in the scrotum at the commencement of the operation when the only evidence that this could occur in that manner was the answer from an expert medical witness to a question during cross-examination by counsel for the appellant and at best the answer could be regarded only as a possible way in which the artery could be nicked.
- (b)secondly, on the facts as found by the Magistrate, whether the nick occurred at the commencement of the operation or at some later time, the proper inference to be drawn from those facts is that the respondent's treatment fell below the standard to be expected of the respondent in the circumstances, and therefore the respondent was guilty of negligence and further or in the alternative breach of contract (Warren v. Coombs (1979) 142 C.L.R. 531, 551-553).
The appellant submitted on the appeal that it was the actual cutting of the artery during the operation that was negligent, and the Magistrate was wrong in law in concluding otherwise. Further that the Magistrate placed too much weight on the fact that the doctor could not see any bleeding when he closed the wound made by his initial incision.
I am mindful that one should not lightly find negligence against a professional man and that one should approach the question with gravity, realising the seriousness of it (Willcox v. Sing (1985) 2 Qd.R. 66, at 72 per Connolly J).
In Rogers v. Whittaker (1992) 175 CLR 479, five members of the High Court said at p.483:
“The law imposes on a medical practitioner a duty to exercise reasonable care and skill in the provision of professional advice and treatment. That duty is a “single comprehensive duty covering all the ways in which a doctor is called upon to exercise his skill and judgment”; it extends to the examination, diagnosis and treatment of the patient and the provision of information in an appropriate case. It is, of course, necessary to give content to the duty in the given case.
The standard of reasonable care and skill required is that of the ordinary skilled person exercising and professing to have that special skill...”
Further, at p.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.”
Further, at p.489:
“Whether a medical practitioner carries out a particular form of treatment in accordance with the appropriate standard of care is a question in the resolution of which responsible professional opinion will have an influential, often a decisive, role to play...”
The respondent makes a number of submissions in response to the appellant's submissions:
- (a)As to the Magistrate's finding that the respondent could not do any more if he did not see the bleeding, it was submitted this was totally supported by the evidence. Further, there was no evidence at all of any step the respondent could have taken if no bleeding was evident. Further, the only evidence was that no further step could possibly be taken;
- (b)As to the suggestion it was negligent to cut the artery, it was submitted the only evidence was that such cutting could occur without any negligence;
- (c)As to the suggestion that the respondent should have ensured that his scalpel was nowhere near the artery concerned, it was submitted that such was impossible as the two were closely adherent;
- (d)As to the suggestion the respondent should have sealed the artery, it was submitted the evidence was that to leave the artery intact was the preferable course. Further, there was no evidence at all that the artery should necessarily be sealed;
- (e)Further, there was no doubt the artery could be cut without bleeding being apparent. It was submitted that evidence was not challenged.
However, in my opinion, the respondent's submissions, as did the Magistrate's reasoning, concentrates too much on the view that because bleeding could not be seen and as there was a dry field, it was proper for the respondent to finish the procedure. This view or approach to the consideration of whether there was a breach of the duty of care in my opinion does, as submitted by the appellant, overlook a consideration of whether the partial severing of the artery occurred because of a breach of the duty of care owed by the respondent to the appellant. That is, it is understandable in my opinion that if there was no bleeding visible, no fault could be found with the respondent's approach at the end of the operation. However, in my opinion different considerations arise when one considers whether the partial severing of the artery ought to have occurred, or if there was a risk that could happen then whether some other step ought to have been taken by the respondent if the respondent exercised the special skill and competence of the ordinary skilled person exercising and professing to have that special skill.
The appellant's expert witness, Dr. Davies, stated in his report (Exhibit 4) that haematoma following vasectomy is one of the more common recognised complications of the procedure, although it would be rare for it to be as extensive as in the appellant's case. Further he stated:
“All recognised described surgical procedures for doing a vasectomy are designed to minimise the risk of damage to the artery accompanying the vas deferens. A competent operator, whatever technique he was using, would be aware of the normal anatomy and would avoid injury. If injury does occur, and recognised at the time, there is no harm in ligating and tying off the artery with the vas deferens.
In Mr. Pashley's case it is quite likely that the injury was not recognised at the time of vasectomy because at that point the artery was not bleeding. It appeared in retrospect to have only been partially severed and under the influence of local anaesthetic with Adrenalin may have been in spasm and not bleeding. Some hours later when the Adrenalin had worn off, the artery would have dilated and because it was only partially severed was likely to bleed at that point. Again, the partial severance of the artery would tend to make the bleeding worse as it interferes with some of the normal physical, haemostatic mechanisms.
The findings on exploration of his haematoma following the vasectomy would support the above contention, and as such the complication does not adversely reflect on expertise of the surgeon and was managed correctly by re-exploration.”
In an early report he said (Exhibit 3):
“The complication described in the original report is a problem that is a recognised complication of vasectomy. The actual procedure is designed to reduce the risk of that complication but cannot eliminate it.”
He also said (T.25):
“All right. Now, is the procedure designed to prevent the spermatic artery that you're talking about being cut or nicked?-- No, the vessel that may have been involved in this case was the arterian veins accompanying the vas deferens and yes, they're vulnerable to injury at the time of the surgery.
And is there a way of reducing the risk of cutting or nicking that artery?-- The operator usually identifies those structures and either avoids them, or if they're in danger of being injured, may actually ligate them and tie them off formally.”
I should also quote the cross-examination of Dr. Davies, upon which the submission was made on behalf of the respondent that he had agreed that this event could occur without negligence on the part of the operator (T.29-30)
“Of course, doctor, but could you have no bleeding at the time of vasectomy and a later spasm causing the walls of the very small artery to rupture or partially rupture anyway, couldn't you?- Yes, that's not an uncommon situation in a lot of surgical procedures.
In other words, the adrenaline is not a necessary part of you hypothesis, it's just one explanation?-- It's one explanation.
Yes. Doctor, you - the - had there - I'm sorry, can I summarise it this way: the little artery half a millimetre in diameter, can you tell us something that's half a millimetre in size just to assist us? Inside of a pencil lead, half smaller than that?- Yes, that would be close. Yeah, about half that, about half a pencil lead, standard pencil lead.
All right. If there's - what you suppose, your supposition is that there might have been a little nick on the wall of that artery which did not cause any bleeding at the time of the operation - at the time of the vasectomy?-- That's a possibility. The injury may be to the veins accompanying the artery as well. It may be to both. I don't think anyone ----
Yes?-- — can say, but he had a haemorrhage following the particular procedure and for that hemorrhage to have occurred, some injury might - must have occurred to those vessels -----
Quite. So -----? ----- at the time of the surgery.
But that injury could well not be visible?-- Yes, it's not that unusual to leave a dry wound and come back because of a bleed that's occurred -----
And so -----? ----- in the early post operative period.
And so provided there were no signs of bleeding, the proper course would be to, having a dry wound site, to finish the procedure and discharge the patient?-- Yes, that would be normal.
And it is just a complication that sometimes you do get post operative bleeding which starts many hours later?-- Yes, that's correct.
And that occurs without negligence on the part of the operator?-- That's correct.”
Before the Magistrate there was evidence from the respondent and from the medical expert called by the respondent that it was possible a nick in the artery could be undetected and later develop into a hole (T.36), and that the artery is easily injured during the process, and that injury could occur without negligence (T.49 per Dr. Nicholson).
Further, the evidence of Dr. Nicholson was that the artery in a human being lies alongside the vas or under the vas or on the surface of the vas, and that a medical practitioner cutting down on to the vas with the scalpel may injure the artery.
Although this evidence which was to the effect that what occurred to the appellant could occur without any fault on the part of the respondent, in my opinion, this evidence was insufficient to overcome a finding that the Magistrate ought to have made that it was more likely than not the respondent breached the duty of care owed to the appellant in the circumstances of this matter.
That is because the evidence of the appellant's expert, Dr. Davies, that post operative bleeding might start hours later and occur without negligence on the part of the operator was evidence he gave in the context of accepting the proposition that a spasm could occur in surgery of any kind. That is not what the Magistrate found had occurred in this operation. The Magistrate found that there was a partial severing of the artery by the respondent causing the bleeding.
Further, the evidence to the effect that there is a risk that the artery could be severed and may not show bleeding could not, in my opinion, be taken to mean the partial severing of the artery was something that occurred despite the exercise of the skill or special skill on the part of the respondent.
Further, the evidence that it was possible a nick in the artery could be undetected and later develop into a hole, or that the artery is easily injured during the process and that injury could occur without negligence, could not, in my opinion, be taken to mean the partial severing of the artery was something that occurred despite the exercise of the skill or special skill on the part of the respondent. On the evidence before the Magistrate there was no other evidence to satisfactorily explain why the appellant in his circumstances suffered the complication the procedures were designed to avoid. That is, in my opinion, the evidence of Dr Nicholson about the position of the artery and the vas was at best an explanation for how the artery was partially severed and that was not an explanation for why it happened. Further, in my opinion the Magistrate was in error to find that he could be satisfied on the balance of probabilities that the partial severing of the artery occurred at the commencement of the operation when the incision was made into the scrotum. This is because the answer given by Dr. Nicholson in that regard was evidence of the possibility of the nick in the artery having occurred in that manner. This means by which the artery could have been partially severed was no more possible than any other means. There was no evidence before the Magistrate to the effect that the appellant did have some aspect of his anatomy that explained that, notwithstanding the exercise by the respondent of skill or special skill in the circumstances, the artery could be partially severed. Further, the evidence that the injury could occur without negligence, in my opinion, suffered for not being coupled with a question why that would be so in the circumstances of this operation upon the appellant and a persuasive answer to that question. Without an answer to that question the evidence at best was an assertion that injury to the artery could occur without negligence coupled with suggestions how injury may have possibly happened on this occasion. This assertion and these possibilities, in my opinion, were insufficient to overcome the finding the Magistrate ought to have made once he found the artery was partially severed by the respondent during the operation. The finding being that there had been in the circumstances a breach of the duty of care.
Further, the evidence regarding the diameter of the artery to the effect that it is very small and the evidence of the artery being along side the vas or under the vas or on top of the vas may demonstrate the operation is intricate, however the evidence, in my opinion, raises possibilities which could not without more overcome the finding to be made from the finding the artery was partially severed during the operation. That finding being that it was more likely than not the respondent breached the duty of care owed to the appellant. It does not follow in my opinion that just because the respondent made an incision in the scrotum at the commencement of the operation during which the artery may have been partially severed, the result is something that has occurred notwithstanding the exercise of skill or special skill. In my opinion, it is that skill or special skill professed by the respondent that would call for partial severing of the artery to be avoided. That is, unless the respondent could show by evidence something about the appellant that explained why this occurred to the appellant, despite the exercise by the respondent of the skill or special skill professed by the respondent. In my opinion, the possible explanation could not displace the finding, in my opinion, the Magistrate ought to have made once he found the artery was severed by the respondent during the operation. That is, it is one thing to say the artery may have been severed when the incision was made in the scrotum, however, an entirely different thing to say why that would happen if skill or special skill is being exercised.
As the Magistrate found, all the medical practitioners were aware, and that included the respondent, that bleeding was a major complication in these operations, and that any known bleeding should be attended to prior to the operation being finalised, otherwise there could be complications. However, in my opinion, the Magistrate considered the issue of breach of duty or no breach of duty on the basis that as there was no evidence of bleeding, the respondent had met the standard of care required by law. By doing so, in my opinion, the Magistrate failed to consider the evidence (which was not contested) that there was an obligation on the respondent when performing this operation to avoid making contact with the artery, or if there was a danger of making contact with the artery, then to ligate the artery and tie it off, together with the finding that the artery was injured by the respondent in the course of the operation and all the other evidence and then decide if the appellant had proved a breach of the duty of care. In this regard, in my opinion, the Magistrate misdirected himself in the approach he took and did not draw the inferences he ought to have drawn on the facts (Aitken Transport Pty Ltd v. Voysey (1990) 1 Qd.R. 510, 514; Warren v. Coombs).
In my opinion, to find otherwise on the evidence and notwithstanding the finding that the respondent partially severed the artery during the operation in this matter would not be giving the duty of care content nor applying the standard of the ordinary skilled person exercising and professing to have that special skill.
As the respondent said in evidence, the operation was a standard operation and there was nothing unusual about it. Further, he said in evidence to perform the ligating and tying off could take five seconds. In my opinion, it was the very risk that the artery could be partially severed and not show bleeding at the time of the operation that required the medical practitioner performing this operation to exercise the special skill or competence of the ordinary skilled person exercising and professing to have that special skill to avoid injury to the artery or if the artery was in danger of injury, to ligate the artery and seal it. In my opinion, the procedure for carrying out this operation identified by Dr. Davies and not disputed by the respondent or the expert called by the respondent, carried out by an experienced and careful operator is intended to avoid injury to the artery, or if there is a danger of that occurring, then the artery should be ligated and sealed. There was no evidence that the appellant had a peculiar anatomy, or that the anatomy of the human being is such that in general the artery will, despite the exercise of skill or special skill be partially severed. In my opinion therefore, the Magistrate ought to have, from his finding that the artery had been partially severed by the respondent, found on the evidence the respondent breached the duty of care. Therefore, the respondent breached the contract of retainer.
Other operations because of features peculiar to those operations or the circumstances of the patient involved, or because of some other feature, could lead to a different conclusion. That is not the position, in my opinion, in the present matter.
Therefore, in my judgment, the appeal ought to be allowed. I order that the appeal be allowed. I will hear submissions on the form of judgment and what orders for costs ought to be made, both with respect to the appeal and the costs below.