Una Cumberland v Geoffrey Stubbs [1995] ACTSC 18 (14 March 1995)

SUPREME COURT OF THE ACT

UNA CUMBERLAND v. GEOFFREY STUBBS
No. SC415 of 1989
Number of pages - 19
Torts

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
HIGGINS J

CATCHWORDS

Torts - medical negligence - duty of care - whether leg lengthening in the course of hip replacement operation was excessive - temporary exacerbation of usual post-operative discomfort - damages to be assessed in "global terms".

Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479

HEARING

CANBERRA, 17-19 May, 7-9 November 1994
14:3:1995

Counsel for the Plaintiff: Mr P Sheils, QC with Mr B Meagher

Instructing solicitors: Scott Sheils and Glover

Counsel for the Defendant: Mr P Garling

Instructing solicitors: Macphillamy Cummins and Gibson

ORDER

THE COURT ORDERS THAT: There be judgment for the plaintiff in the sum of $15,000.00.

DECISION

HIGGINS J This is a claim by the plaintiff for damages arising out of a medical procedure performed by the defendant, an orthopaedic surgeon, on 25 August 1988 at Calvary Hospital in the Australian Capital Territory.

2. The procedure referred to was a left hip replacement operation (the first operation). The plaintiff's claim was for breach of contract. The alleged breach consisted of a failure on the part of the defendant to exercise reasonable care and skill in carrying out the first operation. It was also alleged that the defendant carried out that operation negligently. The particulars of negligence (and also of the alleged failure to exercise reasonable care and skill) were given as:
(i) failure to take adequate care in the choice of hip replacement

prosthesis of correct length;
(ii) failure to fit the prosthesis correctly;
(iii) failure to divide the neck of the femur at the correct level to
accommodate the prosthesis;
(iv) failure to use a prosthesis of correct size;
(v) failure to attach the prosthesis to the femur in such a way as to
have the Plaintiff's leg a correct length.

3. It is apparent that the alleged negligence is synonymous with the alleged failure to exercise reasonable care and skill.

4. The Amended Defence implicitly admitted that the defendant was, and held himself out to be, a specialist orthopaedic surgeon. He conceded that he had agreed with the plaintiff, for reward, to carry out the first operation. The implied term pleaded by the plaintiff was conceded. The matter put in issue was, then, as to whether the plaintiff had performed the first operation negligently.

5. The events leading up to the first operation were not in dispute. Indeed, little, if any, of the factual circumstances were in dispute. There were some differences in given recollections of conversations or states of mind but none of these differences is decisive or of any great significance.

6. The plaintiff was born on 29 September 1927 at Bungendore in the State of New South Wales. She married in 1949. Subsequently, she bore five children. She commenced work as a typist in 1969. She was divorced in 1976.

7. Before the operation she had led a physically active life, engaging in hiking and bicycle riding amongst other activities.

8. Shortly before 1987, however, the plaintiff began to notice pain in her hips. In 1987, the pain was sufficiently troublesome for her general practitioner to refer her to the defendant. The defendant concluded that bi-lateral hip replacement should be undertaken to relieve the plaintiff's pain and to avert more serious limitation of mobility.

9. It may be added that there has, in these proceedings, been no challenge to the correctness of the defendant's diagnosis or prognosis. The defendant's proposed treatment was accepted as being appropriate. It is the execution of the treatment which was challenged.

10. During 1987, the plaintiff was given a date for surgery to be undertaken. At that stage, she did not feel the pain was bad enough to warrant an operation and requested that it be postponed. However, about eight months later, the pain having worsened, the plaintiff agreed to a date for surgery being set.

11. At that stage it was the expectation of both the plaintiff and the defendant that the first operation would be upon the plaintiff's right hip and, thereafter, upon her left hip.

12. However, as the time for the first operation approached, it was the left hip which gave more trouble. As a result, the plaintiff requested the defendant to operate first upon the left hip. The defendant agreed to that request.

13. The plaintiff also asked the defendant for an estimate as to the period of time for which she would be disabled following the first operation. She mentioned that she was hoping to take up an offer of employment as a part-time office manager. The defendant told her that she would be disabled for about three months following the operation.

14. The operation was performed by the defendant on 25 August 1988.

15. Following the first operation, the plaintiff experienced severe pain in the left leg. However, that was not something she regarded as unexpected. It was not until the fifth day following the first operation that the plaintiff noticed anything she regarded as unusual. I quote her evidence:

... it was only when I got up ... I think I was brought up by the
therapist on the fifth day and I didn't even notice anything then. It
was only when I started ... when she was taking me for the first walk
in a walking frame that she drew my attention to my left foot. She
said "Straighten your left foot" and I glanced down and to my horror
it was facing out sideways and I hadn't even been aware of it so I
straightened it ... but then ... I was walking with a bent knee and
she said, "Straighten your knee". That was the next day , I think.
So, I straightened my knee but then the only way I could walk was by
leaning over the walking frame and sort of lurching my body forward
...

16. As a result of these observations, the plaintiff realised that her left leg was now longer than the right. The plaintiff felt that she had no balance. The left leg was quite stiff. Movement was slow, awkward and painful. She graduated, however, from the walking frame to crutches on or about 2 September 1988.

17. The defendant saw her on that day. He examined her. She demonstrated to him that the left leg appeared now to be longer than the right. He responded: "Never mind, we'll level you up the next time around".

18. He then said to the nursing staff, according to the plaintiff: "She will need built-up shoes. She can go home when she gets the shoes built-up". He carried out a clinical measurement of the difference between the two legs and ordered an uplift for the right shoe of 2cm.

19. There was a subsequent measure taken by an orthopaedic footwear technician. He measured the difference by having the plaintiff stand on a book, turning pages until the degree of up lift seemed right to him and comfortable to her. Three or four days later the shoes were provided. It seems the uplift was in fact 3cm.

20. The plaintiff left the hospital with her daughter, Joan Cumberland. However, her left leg was so stiff she could not bend it so as to sit on the front passenger seat of her daughter's car. She had to lie across the rear seat.

21. That stiffness made it very difficult for the plaintiff to manage her usual activities. She had to have assistance both physical and by means of mechanical aids to pick things up off the floor, get her shoes on and so on. There was also a "nuisance pain" in the left heel. There was more severe pain that the plaintiff stated would "... hit me in the groin". That pain would come quite unexpectedly.

22. That pain has subsequently become less frequent. It was like a cramp.

23. For about three weeks after she got home the plaintiff was wakened frequently by severe muscle spasms in the left leg.

24. On 12 October 1988, the plaintiff was reviewed by the defendant. He caused some x-rays to be taken and prescribed physiotherapy. She explained, she said, her difficulty in getting about. The defendant advised her to, "Walk, it will make you better".

25. Until March 1989, the plaintiff continued physiotherapy. She found improvement to be slow although there was definite improvement in the condition of her left leg.

26. In November 1988, without further consultation with the defendant, the plaintiff saw a solicitor. That consultation was, it may be inferred, a result of the plaintiff's dissatisfaction with the result of the first operation. She was referred by the solicitor to Dr Arnold Mann, a general surgeon. She saw him on 22 November 1988. He referred her to Dr Brendan Dooley, an orthopaedic surgeon practising in Melbourne. Dr Dooley saw the plaintiff on 14 December 1988.

27. Dr Dooley agreed to carry out a right hip replacement operation (the second operation). He did so on 22 August 1989.

28. In contrast to the operation carried out by the defendant, the plaintiff's recovery from Dr Dooley's operation was uneventful and free of the distressing symptoms which had followed the operation conducted by the defendant.

29. Whilst the right leg is now trouble-free, the plaintiff continues to have on-going symptoms which limit her activities emanating from her left hip and leg. The plaintiff also feels that she is still not balanced properly. She uses a walking stick to maintain balance when walking on rough or unfamiliar terrain. Circulation in the left leg also seems inferior to that in the right leg. She still uses various aids to improve her comfort. Her shoes need to be flat and, as a consequence, the plaintiff tends to wear slacks rather than more fashionable clothing. She has assistance with housework and gardening.

30. I have not referred to every disability which followed the first operation but it is fair to say that, had the result of the left hip operation been as good as that achieved on the right side, the plaintiff would, subject to her age, be as physically fit as if she had not had arthritic hips in the first place. That is certainly the plaintiff's perception.

31. The left hip is presently more functional and causes less disability than would have been the case had the operation not been carried out at all. However, the cause of action pleaded is in contract. Thus, if the lack of relative success of the operation is attributable to a failure on the part of the defendant to exercise the standard of care reasonably to be expected of a specialist orthopaedic surgeon, then the plaintiff is entitled to damages for the consequences, if any, of that short fall in performance.

32. Further, there is no claim based on any failure to warn or advise of risks associated with the first operation. It may be that such a case could have been made on the authority of Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479. However, the case sought to be advanced in these proceedings is that there was a lack of proper skill in the execution of the first operation. Of course, that does not mean that a lack of warning as to the disabilities which might arise or remain uncorrected, as the case may be, following the operation will be irrelevant. Such lack of advice or warning may support a finding that the deleterious consequence was not an expected or usual complication of the operation but a result of lack of reasonable skill in the execution of it.

33. The plaintiff said that she was told by the defendant that there was a 99% chance of "a good result". The post-operative risk of infection and dislocation of the hip were, she agreed, explained to her. She did not deny that other complications, such as stroke or heart attack, might have been mentioned. However, she did not recollect the defendant warning her of the risk that one leg might end up longer than the other.

34. It is not clear precisely when the plaintiff decided to withdraw her agreement to the defendant performing the right hip replacement operation. She did not have a precise recollection of that matter. However, it appears that, on 12 October 1988, the plaintiff signed a form consenting to a right hip operation to be performed by the defendant. There is a note on the consent form "Cancelled by Patient - 4/1/89". It may be concluded, therefore, that some time between 12 October 1988 and 4 January 1989, the plaintiff decided against having a right hip operation performed by the defendant.

35. In cross-examination, the plaintiff conceded that, whilst she wore a built-up shoe between the two hip operations, she had not used one since the second hip operation. Although she had not expected the degree of imbalance she experienced following the first operation, it had been corrected by the second operation to the extent that she no longer needed built-up shoes. A feeling of some imbalance remained nevertheless.

36. It seemed to me that the plaintiff was an honest witness who was doing her best to give accurate evidence. Save for minor details of no real significance, I believe she gave accurate evidence to the extent that she had a recollection of relevant past events.

37. Sandra Mary Cumberland is a daughter of the plaintiff. She corroborated the plaintiff's evidence as to the latter's disabilities following the first operation. She gave an account of the assistance she rendered to the plaintiff.

38. Much, if not all, of that assistance would, of course, have been required even if the first operation had achieved a better result.

39. In 1984, Ms Sandra Cumberland had become employed by the Australian Underwater Federation (AUF) in a part-time clerical/secretarial capacity. AUF operations increased. She was then appointed office manager, full-time.

40. The plaintiff, before May 1987, had done some casual secretarial work for AUF. In 1988, as a result of grants received, the AUF was in a position to engage a part-time staff member on a permanent basis commencing January 1989. It was expected thereafter that the position would become full-time once further funds were made available. Those funds were expected to have become available by October 1989. That expectation, in fact, turned out to be correct.

41. Ms Cumberland expected that the plaintiff would take up the part-time position as soon as she was able pending its conversion to full-time. Pay would be in accordance with the relevant award. That was said then to be $305.00 per week net.

42. The plaintiff's other daughter, Joan Rebecca Cumberland, also gave evidence. That evidence corroborated the plaintiff's account of the events following the operation so far as she observed them.

43. None of those witnesses impressed me as doing otherwise than telling the truth as they recalled it. Indeed, it was never suggested that they were other than honest witnesses.

44. The real issue, of course, was the medical issue. It was a question as to whether the defendant had, in carrying out the operation, made an error which a reasonably competent specialist orthopaedic surgeon experienced in hip replacement operations should not have made.

45. Dr Arnold Mann was called. Dr Mann has extensive experience as a surgeon. He is the author of a text on the assessment of injuries for the purposes of litigation. However, Dr Mann acknowledged that he had not, save for a short period many years previously, practised as an orthopaedic surgeon. He did not claim current expertise in respect of hip replacement surgery.

46. As a result, it was necessary to reject many of the observations he had made in his reports. Those were observations concerning the hip replacement operation and how it was usually conducted. They relied on information obtained from an unnamed orthopaedic surgeon. There were, also, observations of a legal or argumentative nature which were rejected.

47. Dr Mann was asked to comment upon an answer given by the defendant to interrogatories. The questions and answers were as follows:

Q4. After the operation (the left hip replacement) was the
plaintiff's left leg longer than it was before the operation? If
yes, by what distance had it been lengthened?
A4. Yes, by approximately two centimetres.
Q5. If the length of the plaintiff's left leg was greater after the
operation then explain as fully and clearly as you are able what
caused such lengthening?
A5. The lengthening was produced by correcting the anatomical
deformity caused both by the patient's destructive osteoarthritis
and by pre-existing coxa vara deformity, that is, the total hip
replacement corrected pre-existing anatomical deformity.

48. The question which was put to Dr Mann was:

Now looking at that x-ray (MFI 7 dated 3 April 1987) you've said there
was no coxa vara deformity, was a lengthening for the purpose of
curing a coxa vara deformity necessary for that woman? - - - Well, you
can't cure something which is not there.

49. Both the question and the answer reveal a misconception which has complicated this case. The interrogatories had not asked whether it was a purpose of the operation to lengthen the plaintiff's left leg. Rather they asked for an explanation as to how that lengthening had occurred. It was a fundamental misunderstanding to assume that lengthening was undertaken to correct the anatomical disorders mentioned.

50. What the answer was clearly intended to convey and does, in its terms, convey is that a consequence of the operation had been that the leg affected was longer than it had been before the operation. It was not an object of the operation. Hence much of Dr Mann's evidence proceeded upon a false premise. Further, the simple point that leg lengthening was well-nigh inevitable as a result of the operation, did not seem apparent either to counsel for the plaintiff or to Dr Mann.

51. Nevertheless, in his description of the operation Dr Mann noted:

... every surgeon introduces his own little tricks into determining
how he will best conduct the operation; how he will avoid leg
lengthening; how he will avoid getting the cup at the wrong angle and
so forth ... there is a sort of skelacryptous situation as between not
lengthening the leg, in fact, shortening it and creating instability
... and using a prosthesis which is slightly longer and produces
slight lengthening which increases stability. The reason for that is
that if the tissues of the leg are kept under tension then the
prosthesis is less likely to dislocate.

52. That description contains a logical inconsistency. The truth is that the surgeon will not be attempting to avoid leg lengthening, per se. Rather, the surgeon will be attempting to fit a prosthesis that is neither too loose nor too tight. If the latter occurs, it is probable that there will also be greater than acceptable leg lengthening.

53. Some attention was devoted to an attempt to measure the post-operative leg length discrepancy. Dr Mann initially expressed the view that the discrepancy following the first operation was 3cm but later accepted that it might have been 2.5cm or even 2cm. He also expressed the view that following the right hip replacement performed by Dr Dooley a discrepancy of 1.25 to 1.5cm remained. However, he later resiled from that opinion concluding:

Well, the difference is not less than a centimetre. It may be as high
as 1.5 centimetres. I don't think it is as much as 1.75 centimetres.

54. Radiological examination had, in Dr Mann's opinion, suggested a post-operative difference of 1.75cm. He was also asked:

What is the effect of lengthening a left leg In a person of her (the
plaintiff's) height ... approximately 3 centimetres over a period of
an operation rather than, say, over 6 months of slow ...? - - - Well,
the effects are not actually, I think, predictable because they're so
dependent on the individual ... But the unfortunate effects of abrupt
leg lengthening as opposed to slow leg lengthening is that the tissues
around the joint, that is between the pelvis and the lower parts of
the leg, become stretched and tight. Now, whilst muscles have
considerable stretchability, I mean after all one can bend one's knee
through a tremendous number of degrees, in that respect the quadriceps
are more forgiving than the hamstrings. There is also the enveloping
fasciae of the thigh and the fasciae within the thigh and they are
made of fibrous tissue which doesn't stretch very well. So, there
would be, initially, while the tissues were readjusting themselves to
the new length, a feeling of tightness. That would be very apt to
happen. The second thing that can happen, and is known, is one can
develop stretch paralysis of the main nerves of the leg. The main
nerves of the leg are the femoral and sciatic nerves and to a lesser
extent the obturator nerve.

55. Dr Mann also deposed that whilst some symptoms of which the plaintiff complained following the first operation might have been due to femoral nerve stretching, he pointed out that "in later examinations I could find no serious impairment in any of the major nerves".

56. Although not an orthopaedic surgeon, Dr Mann conceded that 5 to 6mm of leg lengthening might be necessary "in order to get a tighter fit that was less likely to dislocate". It was not clear to me whether the 5-6mm Dr Mann referred to was additional to the inevitable lengthening following the artificial restoration of the hip joint or inclusive of it. I think it likely he meant the latter.

57. The point was made that the greater the degree of lengthening of the leg the more likely were there to be unpleasant symptoms of the kind the plaintiff had experienced.

58. It was conceded by Dr Mann that one centimetre of leg lengthening as a result of a hip replacement operation would be a reasonable tolerance. If that had been the result, it would not have indicated that anything untoward had occurred in the course of the operation.

59. Dr Mann also agreed that avoiding the dislocation of the prosthesis post-operatively was a more important objective for an operating surgeon than avoiding a degree of leg lengthening. What lengthening, if any, of the leg would achieve that objective was a matter which depended upon the particular patient and the judgment of the surgeon. That judgment might well have differed, Dr Mann conceded, if the surgeon had been expecting to perform a bilateral hip replacement as compared with an unilateral replacement.

60. In the latter case, it is obvious that achieving as much parity as possible of post-operative leg length would assume greater importance.

61. Dr David Roebuck, a specialist orthopaedic surgeon, was also called on behalf of the plaintiff. He had not examined the plaintiff until after both operations. The result of his clinical examination suggested to him that the difference there then was between the two legs post-operatively was 0.5cm. In his opinion, the difference between the left leg before and after the first operation as shown on x-rays appeared to be 1.5 to 2.0cm.

62. As to the degree of lengthening which would be regarded as necessary, Dr Roebuck was of the opinion that 0.5 to 1.0cm was sufficient. If a greater degree of lengthening was going to take place, Dr Roebuck considered that traction should be applied over a period of two or three weeks to gradually stretch tissues which would be effected. That would avoid the risks associated with sudden stretching.

63. Dr Roebuck had not, however, carried out a hip replacement operation using the prosthetic system Dr Stubbs had used. He had examined the plaintiff after both operations and found no evidence of any significant neurological damage in the left thigh. He was asked:

So whatever the extent of lengthening that occurred in this leg - and
leave aside the absolute measurement for the moment - when you saw
this lady in 1991, whatever the lengthening that had taken place was,
it had not been sufficient to cause any significant nerve, muscular or
vascular damage? - - - Correct - permanent.

64. As to the lengthening which could be observed, although he did not attempt a precise measurement, Dr Roebuck was of the opinion that the x-rays shown to him in the course of his evidence showed a lengthening of between 1.7 and 1.8cm in respect of the left leg following the first operation. However, he agreed that that apparent difference had to be discounted to take account of magnification which occurred as a result of the process of taking x-ray films. He also agreed that there were other reasons for a difference shown on x-ray films which might cause a greater than actual discrepancy to be shown.

65. Asked for his opinion as to whether a result of nearly 1.7cm leg lengthening was indicative of incompetent surgery, Dr Roebuck responded as follows:

I believe the lengthening was over much, was more than it should have
been, and I believe she had some trouble because of that after the
first operation, and I'm finding it difficult to expand that into
competence or incompetence. I really am, I'm afraid.
So what you're finding difficulty is in saying the result tells you
something of what happened in the operation? - - - No, I'm not finding
difficulty with that. I'm finding difficulty with assessing whether
performing an operation in which the leg is lengthened more than is
acceptable, and producing trouble for a while, is acceptable.

66. It is apparent that there was considerable uncertainty as to what the actual extent of real leg lengthening that had taken place as a result of the first operation. In an endeavour to clarify that matter, Dr Griffin, a specialist radiologist, was called. He had, on 19 August 1994, carried out a comparison between the length of the plaintiff's left and right legs. That purported to show a difference of 1.4cm in favour of the left leg.

67. He did agree that an x-ray of the right hip, taken on 11 June 1991, showed that the prosthesis in the right hip had loosened. That occurrence would, he agreed, have caused the right leg to shorten to some extent. There could also be minor distortions for other reasons which made a precise correlation between actual leg length discrepancy and the radiological representation unreliable.

68. This evidence did not do much to resolve the question, so far as it may have needed to be addressed, of the actual extent to which the plaintiff's left leg had been lengthened as a result of the operation performed by the defendant.

69. Even if after both operations the difference between the two legs was, by 1994, 1.4cm, that does not assist to determine what the difference created by the first operation was. There was, for example, no evidence as to what, if any, was the real difference, as opposed to apparent difference, between the length of the two legs before either operation.

70. However, in his answers to interrogatories, the defendant had conceded that, as a result of the operation he had conducted, the plaintiff's left leg had been lengthened, relative to its pre-operative length, by "approximately 2cm".

71. The evidence does not enable me to conclude that the lengthening of the leg was approximately 3cm as had been assumed by Dr Mann. Indeed, apart from the fact that the prosthetic shoemaker had decided, apparently unilaterally, to build up the plaintiff's right shoe, between operations, by 3cm, there was no logical basis for Dr Mann's assumption. Dr Roebuck had simply adopted that assumption for the purposes of his reports.

72. The same assumption was made by Dr Danta, a specialist neurologist. He did examine the plaintiff and found her complaints, as at 18 July 1994, to be numbness, tingling and tightness in the left thigh and difficulty walking with some pain in the left lower leg.

73. In his opinion, there were signs of a "residual but mild left sciatic nerve lesion and also signs of a lesion of the left lateral cutaneous nerve of the thigh".

74. Dr Danta described the cause of those lesions in the following terms:

One of the commonest causes of sciatic nerve lesion is osteoarthritis
of the hip and operations of hip replacements and operations in that
general area and I have little doubt that she sustained a partial left
sciatic nerve lesion as a result of the first hip operation, but has
made a reasonably good recovery, but is left with some signs, namely
those of weakness at the left ankle. Some of the slight sensory
changes in the left lower leg and left foot and ankle region are
probably due to that as well.

75. The cause of the left sciatic nerve lesion was considered by Dr Danta to be that "presumably during the course of the operation the nerve was stretched and damage was caused thereby".

76. The lesion of the left lateral cutaneous nerve was also considered by Dr Danta to be related to "an abnormal posture being maintained for a prolonged period of time during the course of the operation".

77. The cutaneous nerve damage was, in Dr Danta's opinion, easily treatable with no significant adverse after-effects.

78. Dr Danta conceded that there were other and more usual causes of the nerve damage he found in addition to the excessive leg lengthening in the course of the operation. Damage to the sciatic nerve was not an uncommon after-effect of a hip replacement operation, undue stretching having occurred by reason of leg lengthening.

79. The medical evidence called on behalf of the plaintiff, in my opinion, failed to establish that any untoward leg lengthening had occurred in the first operation. It failed to establish that any of the ongoing symptoms of nerve damage was attributable to the operation.

80. It did not do more than suggest that it was possible that some of the plaintiff's symptoms following the first operation were due to an error of judgment in fitting the prosthesis too tightly.

81. The admission made by the defendant, in his answers to interrogatories, did, however, provide some support for the view that 2cm of lengthening had occurred as a result of the first operation. Dr Roebuck's evidence would support a view that such lengthening was excessive.

82. The defendant, in his evidence, stated that he had noticed in pre-operative x-rays, a slight variation of the angulation of the left hip compared with the right. That could lead to an apparent difference in leg length or to a masking of natural pre-operative difference. The significance of that finding in this case is that greater lengthening might have been perceived post-operatively than had actually occurred.

83. Further, the defendant observed that both hips, pre-operatively, were affected by a 20 degree fixed flexion deformity. That was a result of the advanced osteoarthritis affecting the plaintiff's hips. The first operation would have had the effect of removing that deformity in relation to the left hip.

84. The first operation, as described by the defendant, accorded with the usual procedure for such an operation. It is not necessary to set out a description of the operation.

85. The defendant agreed that, after the first operation, he had a conversation with the plaintiff in the course of which she drew attention to the apparent lengthening of her left leg. After clinical examination, the defendant considered that a 2cm raise to her right shoe should be ordered.

86. It was put to the defendant in cross-examination that he should have used a 'jig', that is, an instrument to measure the length of a cut. He responded that it was not appropriate in the operation in question. That view was expressed in the following terms:

... the instrument was superseded because in fact it didn't give
reliable neck (of the femur) cuts and it would make the neck too short
as it was meant to prevent. And the reason is that it relies on the
femoral head being spherical but in severe osteoarthritis the head
becomes deformed so, in the cases where a guide was most needed, the
guide became most unreliable and so it simply ceased to be used and
people found ... that it simply wasn't a reliable instrument and they
(Hungerford and Bawdon, inventors of the hip replacement system)
advised us not to use it.

87. As a result, the accepted practice is for the surgeon to determine where the cut to the neck of the femur should be made by reference to the thickness of his or her finger. The defendant regarded this approach as accurate within a couple of millimetres. There was no challenge to this opinion other than the assertion of counsel to which I have referred. The medical experts called by counsel for the plaintiff did not support any contrary view. I reject the view that the defendant should have used some other method than he did in carrying out the operation.

88. The defendant was asked how he had judged the length of leg he was intending to achieve. His answer was:

I made this woman's leg its normal proper length by correcting the
deformity that existed. By correcting for the loss of bone caused by
the destruction of the articular cartilage, by the loss of roundness
of the femoral head by the presence that subsist in the acetabulum, I
made it to within two millimetres of that length.

89. It was the defendant's opinion that restoration of the proper mechanics of the hip joint would have required a lengthening of the plaintiff's left leg by 7-9mm (plus or minus 2mm).

90. He denied that he had actually lengthened the plaintiff's left leg by 2cm. He said that the 2cm he had measured clinically post-operatively, was "apparent leg lengthening, present because the right hip had not had surgery and was still in fixed flexion deformity".

91. That answer was, of course, apparently different from that which had been given in answers to interrogatories. The defendant explained that those answers had been intended to understood so as to include apparent as well as actual leg lengthening. That reservation is certainly not apparent in the answers as drafted. As a result, those answers were misleading, though not false.

92. It was put to the defendant that Dr Griffin's measurements revealed an actual difference after both operations of 1.4cm. The suggestion, as I understood it, was that more than 1.1cm must have been added to the plaintiff's left leg in the first operation if that discrepancy remained after both operations. That difference, however, had followed the apparent loosening of the right side prosthesis. Its value in determining the lengthening of the plaintiff's left leg was seriously questionable, as I have already noted.

93. The safe limit for a single stage leg lengthening was, the defendant said, 2.5 cm. That did not concur with Dr Roebuck's opinion but the defendant did not accept Dr Roebuck's opinion as correct.

94. He conceded, however, that:

If there had been real lengthening of two centimetres there would have
been a danger (of stretching the nerves and the muscles and causing
unnecessary pain).

95. Given the method by which the defendant determined to order a build-up of the plaintiff's right shoe by 2cm, it was suggested to him by counsel for the plaintiff that any fixed flexion deformity of the right hip would not have affected the validity of that measurement in reflecting actual lengthening. The defendant, after some hesitation, accepted that suggestion.

96. He was further asked:

Doctor, if the operation had been carried out in such a way as to not
damage this lady's nerves or stretch the muscles to an uncomfortable
extent, you would have expected her by the time she went home to be
able to bend the knee sufficiently to get into a car, would you not?

97. He replied, "Yes".

98. It is of interest to note that the actual build-up of the plaintiff's right shoe was 3cm. That was apparently designed to give the plaintiff the sensation of even balance. As I have noted, that did not support a conclusion that the actual left leg length had increased following the first operation by 3cm. However, that does add some support to a view that the actual measure of lengthening was closer to 2cm. There did not seem to have been any other significant factor affecting the validity of the measure undertaken by the defendant.

99. Dr Brendan Dooley, who conducted the second hip replacement operation, was not called as a witness. However, reports from him to Dr Mann were tendered. On 15 October 1988 he stated, "The left leg is now 2cm longer than the right". That was prior to the right hip replacement operation. That was, presumably, Dr Dooley's conclusion following a clinical examination.

100. Dr Dooley had been asked to comment on some radiological measurement that had suggested a discrepancy of 3cm. He said, on 11 January 1989:

I cannot argue with the radiological measurement of 3cm leg length
difference. As you know in clinical measurement, there is at least an
error of 1cm either way.

101. For reasons which were canvassed during Dr Mann's cross-examination, Dr Dooley's clinical examination, in my view, was more likely to be accurate than the radiological measure. However, it cannot be relied upon with more than the level of accuracy attributable to the methodology. There can be a discrepancy of not more than +- 1cm.

102. Notwithstanding his later expression of a different view, on 27 November 1989 Dr Mann expressed an opinion that the leg disparity in the plaintiff had, as a result of the second operation, been reduced to 0.5cm. Dr Roebuck found a similar discrepancy.

103. Having regard to the evidence given by the various orthopaedic specialists it is, to my mind, unthinkable that Dr Dooley would have sought to increase the pre-operative length of the plaintiff's right leg by 2.5cm. Indeed, given that there is some loosening of the prosthesis with consequent right leg shortening, it seems likely that Dr Dooley's operation resulted in less than optimal lengthening of the right leg.

104. Dr Mann reported on 28 August 1992, "Left leg still 1.5cm longer than the right leg". It is not clear how that measure was made, nor is it reconciled by Dr Mann with the measure of 0.5cm he made on 27 November 1989. It seems to me likely that the difference was due to the shortening of the right leg following the loosening of the prosthesis inserted by Dr Dooley.

105. When Dr Roebuck examined the plaintiff on 5 August 1991, he could find only 0.5cm difference in leg lengths. He does not seem to have adverted to the logical difficulty that, if there had been an initial 3cm difference, to increase the right leg length by an actual 2.5cm would have been to take a risk which he would have regarded as unacceptable. Indeed, even if the actual lengthening of the left leg in the first operation had been only 2cm relative to the right leg, to reduce the discrepancy to 0.5cm by lengthening the right leg would have required a lengthening of 1.5cm. Dr Roebuck would have regarded that degree of leg lengthening as unsafe. It seems likely that, given the result of the first operation, Dr Dooley would have been particularly careful to avoid excessive leg lengthening in the second operation. Indeed, as I have noted, he may have erred on the side of insufficiently lengthening the right leg.

106. The Court was also given the benefit of a report and evidence from Professor Sydney Nade, an orthopaedic and accident surgeon.

107. Professor Nade, correctly in my opinion, points out that Dr Mann's original assumption that the left leg of the plaintiff had, in the first operation, been lengthened by 3cm was not supported by any of the material upon which he based that conclusion.

108. Indeed, the Professor, having regard to the relevant material, formed a different view. He said, in his report dated 25 February 1994,:

My examination of radiographs dated 29 August 1988 (three days after
left hip surgery with only the left hip examined), 12 October 1988
(left hip only examined), 22 August 1989, 25 August 1989 (3 days after
right hip surgery) and 11 June 1991 convinces me that at no time was
there a real leg length discrepancy of anywhere near the alleged 3
centimetres.

109. Further, in his view, the fact that there was a 2cm raise of the right shoe ordered by the defendant was not inconsistent with an actual lengthening of the left leg of the order of 1cm. That is consistent with Dr Dooley's opinion. It was Professor Nade's opinion that beyond restoration of pre-disease damage and shortening, no "significant" left leg lengthening had occurred.

110. Professor Nade was asked about the 1.4cm discrepancy noted by Dr Griffin. He pointed out that the plaintiff's legs might well have been to some extent unequal prior to either operation. He considered that not more than 1.2cm of length had, in fact, been added to the left leg.

111. Unfortunately, much of the cross-examination of Professor Nade proceeded on the assumption that Dr Griffin's measurements represented the discrepancy between the plaintiff's legs following immediately after the right hip replacement. It further assumed that there had been no discrepancy in the actual pre-operative lengths of the plaintiff's legs.

112. It might have been possible to discover the actual lengthening of the plaintiff's right leg which followed the operation performed by Dr Dooley. However, he was not called as a witness and had not addressed that issue in his reports.

113. Counsel for the defendant, correctly and succinctly addressed the real issue in his submissions. He said:

... it is necessary for the plaintiff to succeed, to show that the
pain and disabilities from which she suffers and has suffered since
the operation are associated not with the conduct of the operation
itself or its ordinary consequences, but, rather, associated with the
incompetent component of the conduct, such as is established, because
it is clear that this operation would have consequences of pain and
disability whatever (sic - however?) it be conducted.

114. I now proceed to address that issue.

115. I should say at the outset that I do not accept Dr Mann's estimate of 3cms as the length actually added to the plaintiff's left leg following the operation conducted by the defendant. It is apparent to me that his opinion was not soundly based. Insofar as it was based on comparative radiographic examination, it was a measure sought to be inferred from leg length discrepancy, the pre-operative existence of some part of which was not excluded.

116. I am left with clinical examinations, both by the defendant and Dr Dooley, which agree that, before the second operation and after the first, the discrepancy between the plaintiff's legs was 2cm. I am satisfied that fixed flexion deformity did not contribute to any relevant apparent rather than real discrepancy. Indeed, after proper allowance for inaccuracies inherent in the radiological evidence, enlargement and parallax error, for example, that evidence is consistent with an actual discrepancy of up to 2cm.

117. That evidence alone would not permit a precise conclusion to be drawn as to the post-operative lengthening of the plaintiff's left leg. If it had been only 1cm, that would not have been excessive.

118. There is also the evidence that in August 1994, Dr Griffin measured the discrepancy between the plaintiff's legs at 1.4cm. The defendant did not dispute that mensuration but it was of limited value for reasons already noted.

119. However, shortly after the second operation Dr Roebuck measured the discrepancy between the plaintiff's legs at 5mm. That is more likely to reflect accurately the discrepancy between the plaintiff's legs post-operatively than the current measure, even accepting its accuracy. It is, nevertheless, a clinical measurement with some inherent inaccuracy in it.

120. If there had been a discrepancy of 3cm before the second operation corrected to 0.5cm thereafter, it would have to be accepted that 2.5cm was added to the right leg by Dr Dooley. If the true discrepancy was 2cm, corrected to 0.5cm, that would assume that Dr Dooley added 1.5cm. As I have noted, it seems unlikely, if Dr Dooley followed Dr Roebuck's cautious practice, that he would attempt to lengthen the plaintiff's leg to that extent. Indeed, the loosening of the prosthesis inserted by Dr Dooley supports, as I have noted, the view that nothing like 1.5cm was added to the plaintiff's right leg by Dr Dooley.

121. However, if the defendant had lengthened the plaintiff's left leg by more than 1cm, but less than 2cm, then, if Dr Dooley had added a little less than 1cm to the right leg, that would be consistent with the post-operative clinical examinations.

122. I also take account of the symptoms suffered by the plaintiff following the first operation. Those symptoms were, the defendant conceded, consistent with excessive tension having been exerted on surrounding nerves and tissues in consequence of the conduct of the first operation. The subsequent recovery made by the plaintiff is consistent with leg lengthening that was excessive but not so excessive as to cause permanent nerve injury.

123. Dr Danta's evidence also persuades me that the damage to the left lateral cutaneous nerve was not caused by any lengthening of the plaintiff's left leg which occurred in the first operation. It was probably, as Dr Danta surmised, a result of the posture of the plaintiff during that operation. It is, in any event, able to be readily remedied with no significant after-effects. It was a risk of the operation however well conducted.

124. The more difficult question is whether the lengthening of the left leg during the operation should be regarded as having been excessive. The various measurements given in evidence are, in my view, subject to such uncertainty that no sufficiently precise conclusion can reasonably be drawn from them. The defendant said that certain pins were placed so as to indicate where "the cut" was to take place. They were set 1cm apart. However, no evidence was advanced to correlate that measure with the actual lengthening of leg which would result from the operation if that measure was completely accurate.

125. The evidence persuades me that the actual lengthening was probably less than 2cm but substantially in excess of 1cm. That lengthening was in fact excessive in the sense that it caused unusual stiffness in the knee, a result the defendant conceded to be indicative of that cause. It also placed strain on the femoral nerve resulting in additional pain and discomfort. That is, again, consistent with the conclusion I regard as more probable. However, I do not accept that all of the plaintiff's continuing or present problems result from that excessive lengthening. Dr Danta's evidence persuades me that some effects following the operation, were not caused by excessive leg lengthening. The remaining imbalance, in particular, has not been shown to be due to any such cause.

126. Dr Roebuck would regard leg lengthening in a hip replacement operation as excessive if it substantially exceeded 1cm. That judgment does not seem to me to be dependent on the type of prosthesis used. The risk is of damage to surrounding nerves and tissues due to sudden stretching. The defendant was as aware of that risk as Dr Roebuck was. He was expecting to achieve no more than, say, 1.2cm of actual leg lengthening inclusive of restoration of lost joint tissue. He was primarily seeking a proper fit anatomically placing the tissues under some tension to avoid post-operative dislocation of the joint or loosening of the prosthesis. In that latter respect, the result he achieved has been more successful than the result achieved by Dr Dooley. That is not to say, of course, that Dr Dooley had failed to exercise appropriate skill and judgment. Indeed, the plaintiff remains completely satisfied with the result of his treatment.

127. It seems to me, on the balance of probabilities, that the defendant did inadvertently cause greater stress than necessary upon the tissues surrounding the left hip. There was a degree of leg lengthening which was excessive. It is the plaintiff's condition following the operation which most supports that conclusion, but it is also consistent with the result of the attempts made objectively to measure the plaintiff's leg length discrepancy at various times.

128. The question is whether that result is a breach of the agreement between the plaintiff and the defendant. Dr Roebuck expressed the view that 3cm of lengthening would be so excessive as to bespeak a lack of competent conduct of the operation by the surgeon. However, he was not asked directly whether a result more than 2mm over 1cm would also be so regarded. Indeed, he felt that it was not a result that would positively bespeak incompetence.

DUTY OF CARE
129. There was no dispute between the parties that, by virtue of his engagement to treat the plaintiff for reward, the defendant implicitly agreed to exercise reasonable professional skill and judgment: see Rogers v Whitaker (supra), 483, 492. He held himself out as an experienced orthopaedic surgeon skilled in and familiar with the conduct of hip replacement operations.

130. In this case, there was some disagreement between Dr Roebuck and the defendant, each qualified orthopaedic specialists, as to whether the proper limit for leg lengthening in the course of a hip replacement operation was 1cm.

131. The defendant's evidence was:

You heard Dr Roebuck say that the limit would be about a centimetre
didn't you? - - - Yes, but I didn't agree with that.
You say he is wrong? - - - I am saying what is current knowledge.

132. The reason for the limit was explained by Dr Roebuck. He agreed that leg lengthening beyond 1cm could safely be done but traction should first be administered over a period of some days to stretch the tissues to be affected without damaging them. Interpreting "about 1cm" by reference to the defendant's assertion that he, as a competent surgeon, would expect to achieve accuracy of a cut to within a couple of millimetres, I take it that Dr Roebuck would regard anything over 1.2cm of actual lengthening to be beyond the level to which a competent orthopaedic surgeon would go.

133. Dr Roebuck was not challenged as to his assertion concerning the safe limit for leg lengthening during hip replacement. Professor Nade was not asked to address the issue and the defendant, believing he had added only about 1cm to the left leg, was not asked to address the issue directly. His evidence was, at best, ambiguous as to that issue.

134. In Rogers v Whitaker, the majority judgment (Mason CJ, Brennan, Dawson, Toohey, McHugh JJ) observed, at 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.

135. The defendant has, in my opinion, been shown not to have achieved the appropriate standard by reference to the only opinions elicited as to that standard. That standard would regard any leg lengthening substantially beyond 1cm as involving unacceptable risk of greater pain and discomfort than necessary.

136. It follows that there will be a verdict for the plaintiff. In view of the fact that the case was, at times, put in terms of competence, it should be added that that finding in no way reflects adversely upon the defendant's general skill or competence as a medical practitioner. It merely reflects that, as counsel for the plaintiff suggested in his closing address, the defendant made a mistake in the course of an operation which otherwise would be regarded as routine for an orthopaedic surgeon. It was not a major mistake. Essentially, it did not compromise the integrity of the operation. Nevertheless, it has resulted in exacerbation of discomfort, pain and disability in the left hip and leg beyond that which might otherwise have occurred without that mistake.

DAMAGES
137. There was always going to be pain and disability following the first operation. The exacerbation, though significant, does not correspond with all the disabilities both temporary and continuing that have manifested since the operation. I am not satisfied that the continuing disabilities have been caused by the excessive lengthening of the plaintiff's left leg. I am persuaded, on the balance of probabilities, that there was a temporary exacerbation of the usual discomfort was occasioned. I do not accept that any more than usual nursing care or attention was required. I am not persuaded that there was any adverse effect on the plaintiff's employment.

138. In my view, damages can only be assessed in global terms. I would award $15,000.00.

139. I will hear the parties as to costs.