Jill Causer v Dr Martin Stafford-Bell [1997] ACTSC 90 (14 November 1997)

SUPREME COURT OF THE ACT

JILL CAUSER v. DR MARTIN STAFFORD-BELL
No. SC 339 of 1993
Number of pages
- 55
Medical Negligence

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

GALLOP J

CATCHWORDS

Medical Negligence - breach of contract and tort - breach of duty of care - negligent performance of operation.

Medical Negligence - breach of contract and tort - breach of duty of care - failure to advise of a material risk.

Bolam v Friern Hospital Management Committee [1957] 1 WLR 582

Rogers v Whitaker [1992] HCA 58; (1992) 109 ALR 625

Chappel v Hart NSW Court of Appeal 24 December 1996, unreported.

Ellis v Wallsend District Hospital (1989) 17 NSWLR 553

Anna Koziol v Louise Anasson Federal Court 18 August 1997, unreported

Dr Richard Teik Huat Tai v Susan Kay Saxon Supreme Court of Western Australia, unreported, 8 February 1996

Cassidy v Minister of Health (1951) 2KB 343

Kapur v Marshall 85 DLR 3(d) 556

Girard v Royal Columbian Hospital 66 DLR 3(d) 676

O'Sullivan v Little ACT Supreme Court, Unreported 10 August 1995

Mahon v Osborne (1939) 2 KB 14

HEARING

CANBERRA, 1-2 July 1997 (hearing), 14 November 1997 (decision)

14:11:1997

Appearances

Counsel for the Plaintiff: Mr A J Bartley

Instructing solicitors: Sneddon Hall & Gallop

Counsel for the Respondent: Mr G A Richardson SC

Instructing solicitors: Minter Ellsom

ORDER

THE COURT ORDERS THAT:

1. The plaintiff's claim be dismissed

2. The plaintiff is to pay the defendant's costs.

DECISION

GALLOP J

This is an action for damages for negligence and breach of contract against a specialist obstetrician and gynaecologist. Originally a claim for damages was also brought against a second defendant, a specialist urologist, however that matter was resolved between the plaintiff and the second defendant. A consent order noting the discontinuance was filed on 3 March 1995.

The writ of summons was issued on 27 May 1993. The defendant filed a defence on 29 September 1993 denying negligence and breach of contract. Leave was granted to file an amended writ of summons and statement of claim in court on 1 July 1997. This amendment was the inclusion of an additional particular of negligence.

The hearing of the claim was conducted on the oral testimony of both parties and other expert medical witnesses.

There was substantial common ground concerning the plaintiff's medical history. The following are the undisputed facts.

Medical History

The plaintiff was born on 29 July 1952, and was 44 years old at the time of the hearing. She married in 1974 and had her first child on 20 February 1977 and her second child on 21 June 1979. The defendant was not available for the birth of either child but it appears that the plaintiff consulted him in respect of both pregnancies.

In 1982 the plaintiff underwent a tubal ligation under general anaesthetic at the hands of the defendant. By 1990, the plaintiff was undergoing annual gynaecological check-ups including regular pap-smears were undertaken by her plaintiff's general practitioners. During one of these consultations on 17 October 1990, the plaintiff mentioned to a Dr Di Marco that for approximately six months or so, she had been experiencing increased heaviness of her periods and that the duration of them had increased. Dr Di Marco arranged for some diagnostic tests. These tests suggested that the plaintiff had a fibroid in the uterus. The doctor suggested she should see the defendant. The plaintiff had a consultation with the defendant on 14 November 1990.

There was some disagreement as to how the plaintiff explained to the defendant the change in her menstruation, however it was agreed that at this consultation the defendant discussed with the plaintiff the options available for the treatment of the fibroid. As a result of that consultation and upon receipt of answers to questions put to the defendant by the plaintiff, the plaintiff decided to undergo a hysterectomy. This operation was performed by the defendant on 1 April 1991 at John James Hospital by the defendant. In preparation for the operation the plaintiff embarked upon a short course of hormone therapy.

The defendant performed a total hysterectomy by an abdominal incision made horizontally across the lower abdomen. The plaintiff returned to the recovery ward at approximately 2.30pm on 1 April 1991. Her first recollection was a need to urinate and her left thigh feeling numb in the evening of that day. She was unable to pass urine that evening. She awoke to wet bed clothes and nightie on 2 April 1991. She continued to suffer incontinence on 3 April 1991.

The defendant visited the plaintiff while she was still in hospital on 3 April 1991 and indicated to her that the incontinence may be due to a hole in her bladder. He arranged for the plaintiff to undergo a cystogram on 4 April 1991. The results confirmed the defendant's suspicions that she did indeed have a hole in her bladder. The medical terminology for this is vesico-vaginal fistula. At that time it measured 4-5 mm in diameter and contrast was flowing freely into the vagina.

The defendant told the plaintiff that if the fistula had been there at the time of the surgery he would have been able to repair it on the spot. He then referred the plaintiff to a urologist who told her that surgery for the fistula may be an option. The plaintiff was then discharged from hospital on 8 April 1991 after being admitted for 7 days.

At the time of discharge, the plaintiff had been catheterised for possibly two days. The catheter was inserted into the urethra and when the plaintiff was sent home the catheter was draining into a leg bag. In the first two weeks following discharge from hospital, the leg bag filled up every two to three hours during waking hours.

A further cystogram was carried out on 24 April 1991 by another doctor. The results showed that the fistula had not healed. On 16 May 1991 the plaintiff was re-admitted to the John James Hospital under the care of Dr Heap for repair surgery to the fistula. The plaintiff spent 12 days in hospital on this occasion. When she was discharged from hospital on 28 May 1991 she was again catheterised. On the advice of Dr Heap, the plaintiff consulted a clinical psychologist on a number of occasions.

The plaintiff consulted again with Dr Heap on 10 July 1991. At this time the incontinence had worsened and Dr Heap booked the plaintiff in for further surgery. This was shortly before Dr Heap's retirement so he referred the plaintiff to another urologist - Dr Hughes. He carried out another test on the plaintiff and later suggested the removal of the catheter.

The plaintiff was readmitted to hospital on 24 September 1991 for further reparatory surgery. Two catheters were inserted in hospital - one urethrally and the other supra pubic. The plaintiff was discharged on 1 October 1991 with only the supra pubic catheter in place. It was removed by Dr Hughes on 16 October 1991.

The plaintiff noticed a continued improvement in her incontinence during the rest of 1991. For approximately the whole of 1992 the plaintiff did not find it necessary to use protection for incontinence, however there was still daily dampness, but not the wetness she had experienced previously.

During 1992 the plaintiff noticed spasmodic vaginal bleeding. She brought this to the attention of Dr Hughes in November 1992 at an annual post-operative appointment. An internal examination was conducted and granulation was detected on the vault of the vagina. The plaintiff was referred to a gynaecologist who treated her with silver nitrate. The treatment was administered from November to December 1993.

The plaintiff then saw Professor Millard in June 1994 at The Prince Henry Hospital in Sydney on a referral from her general practitioner for a recurring cystitis and the fistula. The plaintiff had had cystitis as a teenager. By the end of 1993 the plaintiff had noticed the incontinence was increasing and it necessitated the wearing of protection every day again.

After the surgery performed by Dr Hughes, the plaintiff experienced cystitis on a number of occasions which arose out of an infection. She was taking medication to prevent it for more than 12 months and at the time of the trial she was still taking treatment for cystitis.

When the plaintiff consulted Professor Millard he arranged for a kidney test and also tested the operation of the bladder. The test revealed that the bladder was unstable.

The plaintiff underwent a further cystoscopy in October 1994 and then Professor Millard performed another surgical procedure aimed at treating the urinary incontinence. This procedure is called a Stamey bladder neck resuspension. The plaintiff was in hospital for approximately one week.

Professor Millard did not find a fistula during the surgery.

The plaintiff still experiences wetness on a daily basis and needs to wear a pad during all waking hours. Professor Millard has placed the plaintiff on two types of medication to try and stop the leakage but neither has worked long-term. He has suggested a third type but the plaintiff at the time of the hearing, was undecided as to whether or not to try it.

The Pleadings

The plaintiff claims, inter alia, the defendant argreed for reward to provide to the plaintiff advice and treatment, that it was implied by the nature of the agreement that the defendant would use all due care and skill in the provision of advice and treatment to the plaintiff and that upon the advice of the defendant, the plaintiff underwent a hysterectomy, consequent upon which the plaintiff suffered a vesico-vaginal fistula.

The plaintiff further sued in negligence.

The particulars of the negligence and breach of contract as pleaded are as follows:

a) Failure to advise the plaintiff of the risks of operative treatment.

b) Carrying out the operation in a manner such that it caused the vesico-vaginal fistula.

c) Performing the operation with lack of reasonable care and skill.

d) Failure to inspect the operative area for damage to the bladder and vagina.

e) Failure to fill the bladder with methylene blue prior to completing the operation.

f) Failure to identify the occurrence of vesico-vaginal fistula prior to completion of the operation.

g) Failure to repair the vesico-vaginal fistula prior to completion of the operation.

h) Failure to treat or adequately treat the vesico-vaginal fistula.

i) Res ipsa loquitur.

j) Failure to have an appropriately operating catheter in place during the surgery so as to avoid the bladder filling intra-operatively.

The plaintiff's pain and suffering, injuries, loss and damage that she attributes to the breach of contract and negligence of the defendant, include

* injury to bladder

* injury to vagina

* vesico-vaginal fistula

* urinary incontinence

* necessity to undergo invasive treatment with in-dwelling catheter

* anxiety

* depression

The defendant, by his defence, denied negligence and breach of contract.

There are two issues -

1) Was there a lack of care by the defendant, thereby causing the plaintiff to develop a fistula, that is, did he cause the fistula in the course of the hysterectomy during the severing of the uterus from the bladder or in the stitching process? and

2) Was the possibility of a fistula occurring a material risk according to the principles in Rogers v Whittaker [1992] HCA 58; (1992) 109 ALR 625) and if so, did the defendant fail to warn the plaintiff of that material risk?.

The Operation

There was extensive conflicting expert testimony as to the appropriateness of method employed by the defendant in performing the hysterectomy, and the possible causes of the fistula.

The plaintiff called Professor Michael Bennett, Professor of Obstetrics and Gynaecology and Head of the School of Obstetrics and Gynaecology at the University of New South Wales, Royal Hospital for Women, with some 27 years experience in abdominal hysterectomies. After consulting a cystogram report, he stated that he believed the fistula was located between the upper part of the vault of the vagina and the bladder. Further, it measured between 4 and 5 millimetres in diameter. The professor was asked in chief what he thought caused the fistula:

MR BARTLEY: Well, doctor, what is your opinion as to a cause for the fistula?---I think in simple terms fistulae of this sort have only two significant origins. One is trauma caused at the time of surgery and the other is tissue necrosis that occurs for a variety of reasons. The difference between the two is that necrosis of tissues takes days, usually four, five or more days, before the tissue actually disimpacts itself and leaves a hole whereas trauma is almost instantaneous and in the case of the bladder urinary leakage is present from within 24 hours of the operation until thereafter. The conclusion that I draw as to the cause of this fistula is that it is traumatic in origin and not on the basis of tissue necrosis.

Now, given the position of the fistula what are the traumatic causes to which we may look?---The first is that it is in an area from which the bladder needs to be dissected for the operation to be done safely and it is quite possible that during the dissection damage was done. The other is that it is - - -

Just pause there, doctor. Done with what agent?---Either a scalpel or a pair of scissors depending upon what was used to cut the cervico vesical ligament which holds the bladder to the cervix.

Yes?---Or it is possible that damage was done when the vagina was being closed by sutures after the removal of the uterus.

In carrying out surgery of this type and in particular in using either scalpel or scissors to cut the ligament or the needle to put in place the sutures is it of any importance as to where the surgeon positions the bladder?---Very much so.

Of what importance is it?---Well, the closer the bladder to the area either of dissection or to suturing the greater the likelihood that damage may be inadvertently caused.

The cervico vesical ligament to which you have referred, where is it in relation to where the fistula occurred?---My understanding of where the fistula occurred is that it was central in the very upper portion of the vagina which is directly below or at the same spot as the cervico vesical ligament.

Of what dimension is the cervico vesical ligament?---It is a condensation of tissue that is perhaps up to a centimetre in length but no more.

Does that mean that the ligament through its length reaches from the bladder at one end to the cervix at the other?---Yes, it does.

And that length is a length of one centimetre?---Approximately.

Before embarking on the severing of that ligament, what in your opinion should a prudent surgeon with the relevant gynaecological experience do in relation to the bladder?---Under ideal circumstances the bladder should be empty of urine and both lateral aspects on either side of the ligament should be cleared from that area so that the only remaining tissue is the ligament itself.

If one then removes the bladder from that area, what tolerance or clearance does the surgeon have to carry out the severing of that ligament?---If I understand your question, I think the tolerance must be the length of the ligament which is approximately a centimetre.

In your experience and in your opinion, by the exercise of reasonable care and skill, would you expect a surgeon to be able to sever the ligament without causing damage to the bladder such as would lead to a fistula?---Yes, I would.

....

In relation to the suturing of the end of the vagina, what is the proximity between the area where the suturing is taking place and the nearest part of the bladder, assuming that the surgeon has taken appropriate steps to remove the steps from the immediate field of operation?---There's usually at least a centimetre of vaginal tissue that is clear between the bladder and the upper end of the incision in the vagina.

And is that centimetre of clearance something that you would regard as being - capable of being used safely by a surgeon of normal skill with gynaecological experience, so that the suturing was carried out without damaging the bladder, assuming the bladder had been removed as far as was practicable from the field of operation?---Yes, I believe so.

If in fact a fistula is produced - I withdraw that. On the material as we have it, as you have it, are you able to say whether you think the fistula may be the more likely attributed to damage occurring while the cervico vesical ligament was being severed, or whilst the end of the vagina was being sutured?---I really don't know, either is probable. I have expressed repeated concern about the evidence that the bladder was filling during the course of the operation and I think that might persuade me to lean towards suggesting that it is more probable that damage was done during the suturing of the vagina than at a much earlier step in the operation.

May we take it from that that the severing of the ligament comes relatively early in the procedure?---It's a step that is undertaken before the last of the pedicles are taken and the vagina is transected to remove the uterus. So it certainly is a step well before the suturing of the vagina.

And is the suturing of the vagina a step that takes place almost immediately before the operation is concluded?---Usually it's one of the penultimate steps of the procedure, yes.

The professor then went on the describe the significance of a catheter:

Now, in relation to, first of all, ensuring that the bladder is not in a position of danger during either of these operations you've described, what steps does a prudent surgeon of the appropriate experience and qualification take to ensure that the bladder is removed from the field of danger?---In the first instance it is advised that a catheter is passed on the operating table prior to the commencement of the operation.

What is the purpose of that?---That is to get the bladder out of the way of damage during entry into the abdominal cavity. Its secondary role is to make sure that the bladder is out of the way of the features of the operation which occur directly beneath the attachment of the bladder.

Including the two that we're talking about here?---Yes.

And is the purpose of the catheter to ensure that the bladder is empty before any surgery is carried out in an area that might affect the bladder?---Yes, it is.

Once the bladder is empty, may it manually be moved in effect out of harm's way?---It's more easily done when it's empty, yes.

Now, in your opinion what is the appropriate practice concerning that catheter during the surgery itself?---We certainly advise and teach and everywhere I've ever worked has advised and taught that a catheter be placed in the bladder at the commencement of the operation and left in the bladder for the duration of the operation in order to keep the bladder empty. The vast majority of surgeons of my knowledge leave the bladder until the patient is fully awake and able to empty her bladder herself, which is often some hours or days after the procedure.

You mean leave the catheter until - - -?---Leave the catheter until she's back in the ward.

Does that carry with it a benefit in terms of safety insofar as avoiding damage to the bladder during either of the two procedures you've described, the first in relation to the ligament, the second in relation to the suturing of the end of the vagina?---Undoubtedly.

What benefits are there?---The benefits are that the bladder is empty. As the bladder begins to fill the direction that it takes is directly up over the site at which surgery would be occurring and it would therefore get in the way and complicate the surgery and indeed run the risk of incurring damage to the bladder.

If the bladder is empty before surgery and kept empty during the surgery, does this avoid the possibility that the bladder will by filling in effect move itself back into a position of danger?---Potentially, yes.

And, professor, for how long have you been aware of the practice of leaving the catheter in place during the whole of a piece of surgery such as was carried out on Mrs Causer?---I've not come across any other practice, sir.....

In his report of 4 August 1992 Professor Bennett stated:

"... I note from the documents you have sent me that Dr Stafford-Bell suggests the operation went "perfectly smoothly" and that at the end of the operation he carried out his "usual inspection of the pelvic tissue including the bladder". I find it curious that he should describe noting that the bladder was filling with urine in the normal fashion at the conclusion of the operation. This is curious to me because I have not encountered a Gynaecological Surgeon who performs an abdominal hysterectomy upon a patient without first inserting a catheter which remains in the bladder for the duration of the operation in order to specifically avoid the bladder filling intra-operatively and thus making the operation more difficult. I therefore have some doubts about this particular statement which I am sure was meant to be reassuring."

In cross-examination the witness said the following:

MR RICHARDSON: "Following general anaesthesia, the vulva and vagina are cleaned and the bladder catheterised and emptied. For a total hysterectomy an indwelling catheter is not necessary." Now, that's what the text says, doesn't it?---Yes, it does.

So don't you agree with me that that is an acknowledgment that that's a practice, that is, not leaving an indwelling catheter, is a practice accepted by one part of your specialist medical community?---Yes, I do.

You do. Which is quite contrary to the evidence that you've given in your reports and in-chief?---No, it's not.

Why is that?---I have never seen anyone not leave a catheter in a bladder during an abdominal hysterectomy in 27 years.

....

But wasn't the impression that you were trying to give, both in your reports and in-chief, that this is just something that doesn't happen in the medical community?---No. The impression I wanted to give was that the vast majority of gynaecological surgeons place a catheter in the bladder and leave a catheter in the bladder.

But you now acknowledge at least that it is accepted by a reputable section of the appropriate medical community that indwelling catheter is not necessary?---Yes.

....

So, you now acknowledge, don't you, that in two acknowledged text books in the field, the use of an indwelling catheter is not advocated?---It's not mandatory, yes.

Well, more than that. They specifically say it's not necessary, that's not what you do.

MR BARTLEY: I object to that, your Honour, that is actually two questions.

MR RICHARDSON: Well, one of them says it's not necessary, that's the phrase, isn't it?---Yes.

And the other one says, that's not what you do, that's the effect of it, isn't it, because it describes an alternative procedure, is that right?---No, I don't think it does. It advises supra-pubic pressure after the bladder is empty, in order that the bladder doesn't refill with air upon removal of the catheter. That's not an instruction as to whether to take it out or not, not in my view.

It advocates the use of an in/out catheter, not an indwelling catheter?--Mm.

Well, that's inconsistent with an indwelling catheter, isn't it?---Yes, but talks also about rubber catheters and I'm afraid, sir, if you look at the pictures you will find they were taken well before the book was edited. Rubber catheters haven't been in use in the last 25 or 30 years.

Do you see any cause to vary the evidence that you gave in-chief and in your reports, that no gynaecological surgeon does not use an indwelling catheter?---That I have ever seen.

HIS HONOUR: That is not what he said really, Mr Richardson.

MR RICHARDSON: I withdraw that.

HIS HONOUR: That is right. The thrust of it is he has never seen a gynaecologist do an abdominal hysterectomy, without an indwelling catheter.

The witness was asked in cross examination about a fistula caused by a stitch:

Now, if a stitch were to cause a fistula, it would not cause a fistula as large as 4 to 5 centimetres, would it?---I don't believe a stitch alone would cause the fistula. The process would be tissue necrosis caused by the stitch and the result would be a fistula.

And it's clear, is it not, that this fistula had not opened before the end of the operation?---That's not clear to me, sir.

Well, is that not clear because you've not looked at the hospital notes?---Notes - - -

Are you aware of any material that suggests to you that the fistula in fact was open, prior to the end of the operation?---I have no such evidence, no.

So you simply don't know from the material you have, whether it was open - whether it opened before or after the end of the operation?---No.

...

The witness was then asked about the necessity for the plaintiff to have a hysterectomy:

And it was necessary for her, at least sooner or later, to have a hysterectomy, was it not?---I don't know the clinical presentation as clearly as I would wish, because I have not had access to the notes. I think it was probable, but I think with hindsight there are others ways that it could have been dealt with.

Well, that's a bit inconsistent with what you said on 5 October 1993, isn't it?---Yes, it is.

When you said, "In the longer term I believe a hysterectomy would have been unavoidable". You resile from that opinion, do you?---No, I think what I was trying to do there was that I was trying to envisage Dr Stafford-Bell's situation. It was clear to me that the way I would have managed the situation was different from the way he would have managed it and that's got to do with our respective skills and experiences. I would have used a hysteroscope to make a diagnoses of whether this fibroid intruded upon the cavity; he chose not to. I assumed that this was a skill that he did not have. I would have removed the fibroid hysteroscopically and avoided a hysterectomy. I assumed this was a skill he did not have. I have not resiled my opinion, I am simply trying to formulate it on the basis that he would have done hysteroscropic surgery, had he been able to.

HIS HONOUR: What is hysteroscropic surgery?---It's endocscopic surgery through a telescope that goes through the cervix and into the uterine cavity, removing the fibroid without the need to move the uterus.

MR RICHARDSON: That wouldn't guarantee to prevent the haemorrhaging, would it?---If the assumption is that the bleeding was from an increased surface area, it would certainly return it to normal.

It wouldn't guarantee that there wouldn't be new ones formed?---No, it wouldn't.

And if the fibroid was the size that it was found to be, 5.6 centimetres, then the sort of surgery that you're speaking of wouldn't be available?---The ultrasound report told me that it was 4 centimetres in diameter. I have not seen any document that makes it any bigger than that and it is eminently resectable (sic) I'm afraid.

It's the histology report following the operation found the fibroid to be 5.6 centimetres across it?---Eminently resectable (sic) through the hysteroscope, sir.

The histology report also showed the uterus to be 339.3 grams. That's grossly enlarged, is it not?---I think the upper limit of normal would be about 120 grams.

Yes and normal is about 70, is it not?---Well, yes.

So it's grossly enlarged?---It's enlarged.

And the size of the uterus suggests that a hysterectomy was inevitable?---I'm not sure whether that's a statement, a rhetorical question or a question that I'm to answer.

I am asking whether you agree with it, Professor?---If I am allowed to assume that Dr Stafford-Bell does not have hysteroscopic skills, then, yes, it was inevitable.

And even if you assume that he does have hysteroscopic skills, if we now know - I agree with the benefit of hindsight that the uterus weighed 339.3 grams, that indicates a uterus that was going to continue to bleed increasingly over time, does it not?---No, I don't believe you can draw that conclusion at all.

You do not believe?---No.

Well, do you or do you not resile from the opinion you expressed near the bottom of the first page of your report of 5 October 1993, "In summary, therefore, in the short term, suppressive hormone therapy in the form of prog" - I cannot pronounce it - "might well have been effective but in the longer term I believe a hysterectomy would have been unavoidable." Is that your opinion or not?---Yes, provided I am allowed the assumption I made at the time and that was that Dr Stafford-Bell does not have hysteroscopic skills.

Does that appear in your report?---No, it doesn't.

The Professor was then asked in cross-examination about the possible causes of a fistula of this kind and he discounted the fistula resulting from necrosis:

I see. Now, you - injury to the bladder may occur during an operation like this despite all precautions, may it not?---Yes.

And the fact that there has been a fistula is not, of itself, proof that there was lack of care on the part of the treating surgeon?---The speed with which this fistula developed indicates clearly there can have been no other cause other than trauma, at least to me.

With what speed did it occur?---Well, the operation was done on the afternoon of 1 April. The nursing notes suggest that there was blood-stained urine issuing from the vagina continuously by the following evening.

On the 2nd?---On the 2nd.

Well, that is equally consistent, I suggest, in fact more consistent with the fistula having been caused by some trauma to the bladder rather than caused by a stitch out of place?---Yes.

So if you accept that the fistula did not open until the middle of 2 April 1991 - you accept that - that is inconsistent with it having been caused by a badly placed stitch?---I can't accept that, sir.

When you separate the bladder you are doing something that is unnatural for the body, are you not?---Yes.

You are pulling apart - in layman's terms, you are tearing apart or pulling apart two organs which are attached to each other and are meant to be attached to each other?---Correct.

And it is inevitable that there will be some trauma to the body in the course of that happening by its very nature?---Yes.

And you are not suggesting that every fistula in these one in 200 or less frequently occurrences is caused by negligence on the part of the surgeon?---No, I'm not.

So a fistula in some of these cases at least can occur as a result of that trauma, the trauma leading to bruising, as I understand it, leading to necrosis, leading to a fistula?---This is true.

And it is consistent that that is what occurred if the fistula did not open until well into the following day?---No, that is not consistent, sir. An understanding of necrosis is important. If tissue is to necrose it takes days to necrose. We are talking about tissue - two sets of tissue. One is the bladder, one is the vagina. For both to necrose so that an opening exists between the two will take in my submission between five and seven days or longer. The usual traumatic fistula is evident within 24 and 36 hours and I repeat, evident - it was evident here within just over 24 hours of the operation. It may have been evidence before but it wasn't recognised as such.

Well, a traumatically caused fistula will open virtually immediately, would it not?---It would depend to some extension on what other tissues were doing in the place where the sutures had been placed. After all the sutures are used to close the vaginal vault and hopefully make it watertight. In this case it wasn't quite watertight and water was able to escape within 36 hours of the operation.

I suggest it would have happened earlier if this problem had been caused by a stitch?---I didn't say it was caused by a stitch. I said it was caused by trauma.

What, you're suggesting it's caused by trauma caused by a stitch?---No. No, that's one of the two options that could cause trauma to the bladder base.

Well, a third option is that it's simply a misadventure consequence of the trauma of separating the bodies?---Would you like to go on and explain how the fistula developed then, as a result of misadventure? Because I don't understand that if you've got to exclude necrosis.

Well?---History alone says necrosis didn't occur in this case. It's not possible. It must therefore have been damage caused either at the time of separation of the cervico vesico ligament or by the placement of sutures inadvertently damaging the bladder with the sharpness of the needle.

So you simply disagree with this opinion I take it? "The separation of the bladder" - I will go through it step by step. "The separation of the bladder and the uterus is an unnatural event" I am reading from the report that I tendered dated 26 June 1997.

... MR RICHARDSON: ...

"The separation of the bladder and the uterus is an unnatural event", do you agree with that?---Yes.

"Necessarily involving trauma to the bladder wall", do you agree with that?---No, I do not - - -

You disagree with that?---Absolutely.

There must necessarily, I suggest to you, be some trauma to the bladder wall when you separate the two?---Absolutely not.

By the way, you say the other possible cause is the use of a scalpel, is that right?---The division of the ligament holding these two together is frequently done either with a scalpel or a pair of scissors. One of those two, I suggest, could have made a hole in the bladder.

And, of course, one can have such an accident without lack of care, I suggest to you. Even, let's assume that it's caused by bladder - caused by scalpel or scissors, that can happen as an accident, as a misadventure, with all due care?---Yes, it can.

And the misplacement of a stitch can happen with all due care?---No, I disagree.

You disagree with that?---I disagree.

I'll read on. Do you agree or disagree with this statement. "The fistula was almost certainly related to ischaemia, which may have been secondary to trauma of the bladder wall". Do you agree with that?---No, I don't.

You just say that it's wrong?---Ischaemia of the bladder wall ie, necrosis will take days to become evident. If it's only damage to the bladder wall, and there's no ischaemia or necrosis of the vagina, then a fistula will not develop. A hole will develop in the bladder and urine will freely enter the peritoneal cavity.

All I can do is suggest to you that that opinion is wrong and that it can happen within the time-frame we're talking about and you disagree with that, is that right?---I disagree.

I'll just read on, "...trauma to the bladder wall, which is in all probability quite thin." You can have varying thicknesses of bladder wall, they vary enormously don't they?---They do.

And it's not apparent to the surgeon what the thickness or thinness of the bladder wall is?---Correct.

I read on, "The occurrence of a fistula is not in itself indicative of lack of proper care". Do you agree or disagree with that?---I agree.

"And there is no indication the surgery was not carried out other than with proper care"?---I'm not happy with that statement.

Well, if you accept that the catheterisation, the non use of an indwelling catheter was done by Dr Stafford-Bell in accordance with an accepted practice, then he hasn't followed a procedure that's negligent has he?---No.

And you don't know then what it was that caused the fistula?---No.

And you accept that if it was caused by the use of scissors or scalpel, that could be - that could happen without lack of care?---In specified circumstances, yes.

Yes. Well, that was what you agreed with me wasn't it?---Yes, it was.

So you can't say that it was carried out other than with proper care, can you?---In a situation in which no previous pathology or surgery had occurred, I would suggest to you that trauma to the bladder is avoidable. The fact that it occurred, and it must be traumatic and not necrotic, suggests a lack of care.

So that's really the sum total of your evidence. That if you get a fistula that isn't necrotic, there must have been lack of care?---If you get trauma to the bladder in the absence of pathology making the operation other than simple, then yes it is lack of care.

And you are not prepared to accept that a fistula can happen in those circumstances with all due care as a misadventure, and in fact happens frequently in the scheme of things as a misadventure?---I am not sure we are talking about the scheme of things. I think we are talking about a particular patient and a particular fistula in particular pathological circumstances.

Just bear with me a moment, if you would, your Honour.

You said in - you agree with this statement, "In the absence of pathological appearance, separation should be much easier and incidents of inadvertent damage considerably lessened". Do you agree with that?---Yes, I do.

Lessened, not totally avoided?---Yes.

Now, you also refer in your reports to a failure to inspect for and find the fistula, but if a fistula didn't open until post-operatively, all that material is irrelevant, is it not?---If the fistula didn't open until post-operatively, yes.

Equally, the use of methylene blue is irrelevant if there is no suspicion of a fistula or a problem at the time, do you agree with that?---Correct.

HIS HONOUR: How would a fistula open 24 hours later?---I am afraid it is a question of semantics, your Honour. If the fistula was created as a result of trauma to the bladder then unless the vagina was sutured in such fashion as to make it completely watertight urine would leak out once it had accumulated in the bladder into the space between the vaginal vault and the bladder and would naturally find its way out of that small space. It would either find its way out into the general abdominal cavity or it would find its way out through the vagina. What we are talking about is the perception of that urine leaking rather than its leading. We have no knowledge of when it started leaking except my contention that it occurred from the time that the bladder was damaged. The nursing notes suggest that they perceived it the next day but it is a question of perception and occurrence and they are not the same thing.

MR RICHARDSON: Well, you've not looked at the hospital notes.

HIS HONOUR: It is not a case of something bursting though, is it?---No, it is not, no.

MR RICHARDSON: Well, doctor, you've not looked a the hospital notes, have you?---I was shown a copy of the nursing notes pertinent to 2 April last night.

I see. My suggestion to you is that that that shows - and again I am using layman's terms, but the hole didn't occur. There wasn't actually a breach, not a leak - I'm not talking about a leak, I'm talking about a hole, a breach, until 2 April - - -?---No, it does not, it means that a hole did occur at the time of the operation and the urine was not perceived until the next day.

The witness was then asked for his opinion on whether the silver nitrate treatment administered by Dr Munro, a gynaecologist, could have contributed to the plaintiff's incontinence:

Granulation is proud healing flesh, is it not?---It is indeed.

If you had had a history of a patient who had had a fistula post operatively and that it required two operations to heal it and then twelve months later she presented with granulation causing pain on intercourse, would you have applied silver nitrate treatment or would you have attempted to treat that conservatively?---I do not think that you can treat a granulation tissue conservatively, in other words, by leaving it alone.

With creams?---I don't know of any creams that would make it go away or make it shrink and disappear. But I do not know that I would immediately have applied silver nitrate. I would have been very scared that this was all there was that was plugging that had previously been the fistula and I would want to know what the inside of the bladder looked like before I started to play with silver nitrate in the vagina. It is a caustic and it will burn if it is inadvertently placed in very thin delicate tissues.

And so, if after four silver nitrate treatments in the space of approximately a month she suddenly has bad incontinence again that is really the result, is it not, of the inappropriate treatment by the gynaecologist who applied the silver nitrate treatment?---Only if that urine is escaping from the area where the silver nitrate was applied. If she simply had stress incontinence it is more likely that this is something that has developed slowly as a consequence of repeated childbirth.

If she goes twelve months with no - or with minimal incontinence described as no worse than she had experienced before the operation, has four silver nitrate treatments and then within four days is complaining of increased leakage, the conclusion you draw is that it is the silver nitrate that has caused the problem, is it not?---I think that would be my first conclusion. I would be very worried about that. ....

The plaintiff then called Dr Richard John Millard, Associate Professor of Urology at Prince Henry Hospital. The plaintiff was referred to Dr Millard by her general practitioner in June 1994. In examination-in-chief the witness said that his initial clinical impression was that the plaintiff's incontinence was happening as a result of a breakdown and repair of the fistula. The witness obtained an x-ray of the kidneys, uterus and bladder and the "x-ray was normal".

A urodynamic study was done at the suggestion of Dr Millard. This is a pressure test of the bladder and urethra to ascertain the cause of the leakage. In his report of 25 March 1996, the witness described the test and results as follows:

"Urodynamic studies were conducted on 23 August 1994. There was a good initial flow rate voiding a total of 415 ml. The bladder was stable with pressures rising very little to 420ml. There was a strong desire to void at this volume which was normal. The bladder neck beaked open with coughing with slight stress leakage through the urethra. Voiding occurred at normal pressures but two bladder contractions were required to empty the bladder. Her urine was sterile. The conclusion was that the patient had a stable bladder with incompetence of the bladder neck which might produce stress incontinence after repair of any fistula."

In describing incompetence of the bladder neck, the witness said that in a normal bladder the pressure is kept low by various neurological mechanisms. Resistance in the outlet is attributable to a bladder neck which is water tight, and a sphincter mechanism which is competent. So a healthy bladder should not beak open when one coughs or strains. If a bladder does beak open, this would mean that the particular defence mechanism against incontinence is not completely effective. In the doctors view, incompetence of the bladder neck may produce stress incontinence after repair of a fistula.

In his evidence Dr Millard said that the results of the urodynamic study did not conclusively prove that the plaintiff's incontinence was due to a problem with the repair surgery, but it clearly showed that it was one "potential contributing cause of ongoing incontinence." He conceded that a leakage from a small fistula could easily be masked by and not demonstrated at urodynamic study.

On 10 October 1994 the plaintiff underwent a cyctoscopic evaluation. This showed that there was no evidence of a fistula. The witness interpreted the results of this evaluation as follows:

"The cystoscopic evaluation showed no evidence of vesico vaginal fistula and speculum examination of the vagina with the bladder full showed no evidence of leakage of urine through a fistulous track into the vault of the vagina. Clearly the repair procedure performed by Dr. Peter Hughes had been successful. However, with a full bladder, stress incontinence was easily demonstrated and therefore a Stamey bladder neck resuspension procedure was performed."

When asked about a Stamey procedure, the witness said:

Now, you carried out a procedure called a stami procedure, is that right?---Correct.

What, simply, is involved in a stami procedure, Professor?---A stami procedure is a resuspension operation of the bladder neck. It is one of a number of resuspension procedures which I use for the treatment of stress urinary incontinence due to sphincter weakness, there being two approaches, one being a supra pubic suspension, such as a birch suspension, in which the bladder neck is supported on a vagina, or one of the needle suspensions, of which the stami procedure is but one, which resuspends the neck of the bladder with a less extensive dissection in the retrobpubic space, resupporting the vagina and the paravaginal fascias to the rectus sheath by virtue of some needles which are passed down through the rectus muscle, which is the anteriro of the - the musculature of the anterior abdominal wall, through the endopelvic fascia, which is the fascia on the side of the urethra, to support it. The effect of either an open birch type culpa-suspension, or a needle suspension is similar, they have similar success rates initially, and the effect is to elongate and elevate the bladder neck and in so doing do we improve the competence of the sphincter mechanism. That is to say, once the urethra is resuspended into its normal and proper position, that it seems to work better, provided of course that its nerve supply is in there.

Well, that was going to be my next question. If in fact there has been pelvic surgery of the type undergone by Mrs Causer in the fistula repairs, does that effect the successful outcome of the stami procedure?---The more pelvic surgery and particularly vaginal surgery that has been conducted before ...(indistinct)...is the outcome of any resuspension procedure.

He described "stress incontinence" as being incontinence due to weakness of the urethral sphincter mechanism. That mechanism is comprised of two types of muscle: a smooth muscle, such as exists in the bladder wall and the bowel, and a striated muscle over which one has voluntary control. He went on to explain that the smooth muscle component is amenable to stimulation by drugs to increase urethral resistance whereas striated muscle component can be improved by exercise or by repositioning operations. The stress referred to was explained by Dr Millard as being the stress of any exercise which might induce a rise in intra-abdominal pressure. He explained that it is mechanical or physical stress, not psychological stress.

As to the cause of the weakness of the bladder neck and sphincter mechanism, Dr Millard said -

Right. Now, in the final event, of course, you had excluded any ongoing problems with the fistula itself?---Yes.

And it was left with the diagnosis of a stress incontinence related to incompetence of the bladder neck?---And weakness of the sphincter mechanism.

Now, did the pelvic surgery, that is the fistula repairs, contribute to either of those two areas of weakness?---It's known that extensive pelvic dissection can contribute to urinary incontinence by potential damage to nerve supply to the sphincter.

Yes. How does that - - ?---Fistula repair, if it is small and confined may not cause that, but of course with second and third repairs, then the more extensive the dissection required to close the fistula the more potential there is for that to contribute to damage to the nerve supply to the sphincter, or other urodynamic abnormalities of the bladder.

Right. Do you believe in this case that the two episodes of pelvic surgery without choosing which one, have made a contribution to the ongoing incontinence?---There is a possible association between those two operations and the subsequent demonstration of stress incontinence.

And how would that association operate, as a matter of pathology?---The association between pelvic surgery and sphincter weakness is probably through either scarring at the back of the bladder, and of course the closer the fistula is to the bladder neck the more danger of scarring when it's repaired, or to nerve damage to the sphincter mechanism.

HIS HONOUR: That involves an assumption, does it, Professor, that the patient was not suffering from any incontinence before the hysterectomy?---Yes, sir.

MR BARTLEY: Is it the case that women who particularly have had two children delivered by a vaginal delivery often develop some degree of what is properly called stress incontinence?

MR RICHARDSON: Well, I object to that, your Honour. I withdraw my objection.

THE WITNESS: Vaginal delivery is a risk factor for the development of stress incontinence, yes.

MR BARTLEY: And in Mrs Causer's stress incontinence, did you believe that that factor way playing a part?---Had it done so, I would have expected her to have had and to have been complaining of stress urinary incontinence prior to her hysterectomy.

We have a history, which you I think don't, that she had had some degree of stress incontinence prior to the hysterectomy. If you add that piece of history, does that indicate that the fact of multiple childbirth is playing a part in the stress incontinence?---Clearly, if she had stress urinary incontinence prior to the hysterectomy, then it could have been aggravated by her subsequent surgery and the repairs that ensued.

If there were stress incontinence present before the hysterectomy, would that be a factor in any way in the likelihood that the two bouts of pelvic surgery might add to that incontinence?---Yes, I think that's implicit in what I've attested to.

In cross-examination the witness agreed that if the level of incontinence post-hysterectomy was the same as for pre-hysterectomy, that would suggest there was "some other process going on that made it deteriorate in the ensuing years."

In relation to the connection between the Stamey procedure and the incontinence, the said:

And stress incontinence is not in any way causally connected to the occurrence of a fistula?---Only in as much as it can be effected with the dissection that is required to effect a cure of the fistula.

HIS HONOUR: And your stami procedure was highly successful, Professor?---It has resulted in cure of her stress urinary incontinence, yes.

In his report of 25 March 1996 the he said:

"In summary then, this patient underwent a hysterectomy in 1991 which resulted in a vesico vaginal fistula. A first repair of this fistula in May was unsuccessful but the operation on 2 September 1991 appears to have repaired the fistula. Nonetheless she has gone on having stress incontinence which has not been treated with a resuspension procedure. I do not think that the ongoing stress incontinence was a result of the hysterectomy but clearly the vesico vagina fistula resulted from the hysterectomy and is a known complication of this procedure. The patient seems to have had ongoing problems from the development of the fistula from the time of the operation in April until its repair in September 1991."

The defendant gave evidence. He is a practising gynaecologist and obstetrician. He has been in private practice since 1975 specialising in obstetrics and gynaecology in Canberra. He is presently unit head of Obstetrics and Gynaecology at the Canberra Hospital.

According to the defendant's notes, the plaintiff consulted him on 14 November 1990 because her periods were "excessively heavy and were lasting for 6 to 14 days." The plaintiff found this unacceptable. The defendant discussed with her the treatment options available. It was pointed out to the plaintiff that if no treatment was undertaken the blleeding would continue with the risk of it getting worse. The fibroid may grow further, and more fibroids might develop.

The defendant said in evidence that they discussed hormone therapy treatment. The plaintiff would be required to undertake this treatment for the rest of her menstrual life. The plaintiff, regarded this option as unrealistic because she had undergone sterilisation previously to avoid having to take daily medication, namely, the contraceptive pill.

A myomectomy was also discussed. This is an open operation that is technically more difficult than an abdominal hysterectomy. The defendant's evidence was that it carried a higher risk of complications and that as a rule it is only justified in women who wish to preserve their child bearing potential, or who refuse to have a hysterectomy.

In his evidence canvassed earlier, Professor Bennett had opined that a hysteroscopy would have been a treatment option for the plaintiff. When asked about this the defendant gave the following evidence:

Now, Professor Bennett yesterday mentioned a hysteroscopic, hysteroscopy, didn't he?---Yes, he did.

Was hysteroscopy available at the time in Canberra?---It was available as a diagnostic procedure, but not as an operative procedure, though it is now.

It is now available as an operative procedure?---Correct.

And is an operative procedure that you now are familiar with and use yourself?---Yes.

Would it be appropriate - would it have been appropriate, even if it were then available, for that fibroid?---No, it wouldn't. It's generally accepted and there are multiple publications on the subject that the indications for a hysteroscopic myomectomy are one, that the fibroid should - sorry, beg your pardon, that at least 75 per cent of the fibroid should be protruding into the uterine cavity.

In layman's terms, that 75 per cent is protruding above the wall - - -?---Sticking into the uterine cavity.

Sticking into the uterus?---Yes.

And what was the position in this - with this?---This fibroid was almost wholly confined to the myometrium, that's the muscle of the uterus, with only a very small portion protruding into the uterine wall.

Yes, and would that have made that procedure more difficult?---It would have made it technically extremely difficult to do. The indications, as I said, are that at least 75 per cent of the fibroid should be sticking into the uterus, if you put it that way. Two, that it should be causing symptoms. Three, that if it doesn't satisfy those criteria, in other words, if less than 75 per cent of the fibroid is sticking into the uterus, hysteroscopic myomectomy should only be considered under two circumstances, one is the patient who wishes to preserve her fertility, and, two, is the patient who wishes an abdominal operation. It is clearly pointed out - - -

Sorry, you said, wishes - - -?---Wishes to preserve her fertility, which wasn't the case with the plaintiff.

Yes?--Or, who refuses to have an abdominal operation. It is also clearly stated that it needs to be undertaken as a three stage operation, that is that the patient requires three separate operations.

And why is that?---Because it's impossible to remove a fibroid of that size in one attempt.

Or what would happen?---There is a severe risk of uncontrollable bleeding.

HIS HONOUR: I have not been told yet what a fibroid is, I do not think?--- A fibroid is a benign tumour of the muscle wall of the uterus.

MR RICHARDSON: And this benign tumour was not protruding to the extent of 75 per cent?---Correct. A very small proportion of it was protruding into the uterus. If one is going to undertake the procedure, one has to do it as a three stage operation - - -

It would involve a general anaesthetic on each occasion?---On each occasion, yes.

Yes, and what about he size of this fibroid? We understand it was 5.7 - - -

MR BARTLEY: I object to that, your Honour. There is no evidence of that. We have not been served with anything that says that.

MR RICHARDSON: Well, the hospital notes will take you to it. It was a histology report or examination done post-operatively, is that right?---Correct.

....

HIS HONOUR: What is histology again, please, doctor?---Histology is microscopic assessment of a tissue, your Honour.

MR RICHARDSON: And that report shows that fibroid was, in fact, 5.6 centimetres across?---It does.

Is that a factor in considering whether one hysteroscopy would be appropriate or not?---Yes it is. The majority of opinion would be that that should not be undertaken hysteroscopically. If it is going to be undertaken hysteroscopically, then very strict adherence to the indications that I have outlined is appropriate and if those indications are not adhered to, then the opinion in 1990 and, indeed, in 1997, by members of the Endoscopy Society, would be that it would be of, well, questionable ethics.

HIS HONOUR: That is about two and half inches, is it not?

MR RICHARDSON: Yes. Just while we have got that histology report, that also shows the uterus at 339.3 grams?---It does.

What is a normal weight?---About 70 grams.

So that's grossly enlarged, is it not?---It is considerably enlarged, yes.

What does that tell you, at least in retrospect, about the desirability of having a hysterectomy?---That it was the only realistic alternative. I really can't accept hysteroscopic myomectomy as a procedure in this patient.

I reject the evidence of Professor Bennett on this matter and find that the appropriate facilities for conducting a hystoscopy were not available in Canberra at that time. I also accept that the plaintiff's fibroid was of a type that should not have been removed by this procedure.

In relation to the operation itself, the defendant gave the following evidence:

MR RICHARDSON: We then come to the operation itself. What did you do in relation to the bladder?---It's my invariable practice that once the patient is anaesthetised I catheterise the bladder. I use a metal catheter to empty the bladder and then I remove the catheter. It is what is known as the in-out technique.

And are there occasions when you would leave an in dwelling catheter?---Yes, under situations in which one anticipated beforehand that one might have a difficult hysterectomy.

And was there any reason to suspect that that might be - there was such a risk in this case?---No.

So, at the commencement of the operation what was the state of the bladder?---Empty.

How much time passed between the time it was emptied and the time that you separated the bladder?---Approximately 10 minutes.

And at the time of the separation of the bladder what was the state of accumulation of urine in the bladder?---None.

Was that what you'd expect?---Yes.

And how much more time passed before you inserted the stitches?---Into the vaginal vault?

Yes, into the vaginal vault?---The whole operation took, I think, about 40 minutes, so that the stitches into the vaginal vault would have been put in approximately half an hour after catheterisation.

And what was the state of urine in the bladder at that stage?---At that stage the bladder was empty.

Did you, subsequent to the - well, at the time of the insertion of the stitches into the vaginal vault, had the bladder done what Professor Bennett yesterday said can be a risk and that is, moved too close to where you are working?---No, it can only do that if it is substantially filled with urine.

And was it substantially filled?---No.

And did it in fact do it?---Sorry, did it move into the - - -

Did it move in, in that operation?---No, it didn't.

And subsequent to the insertion of the stitches, did you do something in relation to the bladder by way of checking it?---Yes, I always have a look at the bladder at the end of the an operation, something I was taught to do.

The defendant went on to describe how the patient is tilted in a head down position so that any leakage from the bladder should be obvious. The bladder is palpated and at the end of the surgery there is approximately 20-25 mils of urine in the bladder. Such an amount, the defendant said, is not sufficient to push the bladder into the wrong place so as to obstruct the surgery. In the plaintiff's case, the defendant said that he did not observe leakage from the bladder at the time of palpation.

In relation to Professor Bennett's evidence advocating the use of an in-dwelling catheter during a hysterectomy, and reference to a textbook the defendant said that he had consulted the textbook reference and could not find an expressed preference for the use of an in-dwelling catheter as opposed to a metal in/out catheter.

The doctor was then asked about the surgical instruments in the vicinity of the bladder:

The patient is tilted in a head down position, so that if there is any leakage from the bladder it should be obviously visible. I palpate the bladder and at the end of the operation, under these circumstances, there is perhaps 20, 25 mills of urine in the bladder.

And is that observable at that rate?---Yes, it is. It is very much like the effect of the first gentle breath of air into a deflated balloon and the comparison is apt.

And is 20 to 25 mills - is that what you said?---Yes.

Is that an amount which is sufficient to push the bladder into the wrong place?---No.

Did you observe, when you palpated the bladder, that there was approximately that amount of liquid in it?---That would be my assessment, yes.

And did you observe any leakage from the bladder at that time?---None.

Now, just dealing with in-dwelling catheters. We have already heard reference in earlier evidence to two text books in which there is reference to using in/out catheters rather than in-dwelling catheters, and you have been present while that has taken place?---Yes.

But Professor Bennett referred, did he not, to Bonney's earlier text, the 1974 edition?---Yes, he referred to it as the accepted gold standard edition.

Would you have a look at this volume. Is that that edition?---1974, it is.

Have you looked at that again overnight?---I have.

And is there anything that you can find in there that advocates the use of an in-dwelling catheter for an operation such as this?---No, I can't. I've looked at every reference to emptying the bladder, to access of the abdominal cavity and to a abdominal hysterectomy. There is no reference whatever to an in-dwelling catheter. On every occasion it advocates the use of a metal in/out catheter. .....

....

When it came to the separation that you said occurred 10 minutes into the operation, do you use a scalpel?---No. I open up the peritoneum with a pair of scissors; I push the bladder away gently with a gauze swab, as advocated in Bonney's text book; I divide the final part of the vesico cervical ligament with a diathermy. I don't use a scalpel and I don't use scissors because I've found that that can cause some troubles and bleeding at the outer edges of that ligament. I found that by using a diathermy, which is a coagulation device, your Honour, it both cuts and coagulates at the same time, I find that one gets much less troublesome bleeding in that area. And troublesome bleeding can obscure the operative view.

So, in layman's terms, was there a scalpel or scissors used in the vicinity of where this fistula subsequently occurred?---No.

You mentioned the period of the operation. Professor Bennett referred to upwards of an hour. Did this operation take upwards of an hour?---No.

And the hospital notes - don't answer this because there is objection to it. The hospital notes show the operation commenced at 1.20pm and concluded at 2.10pm?---Yes, that includes the time from which the anaethsetic begins to the time the patient leaves the operating theatre. It doesn't of course cover the actual skin to skin operation time.

Which is within that period?---Which is with that period and is approximately 40 minutes. ... ....

The next three pages are extract nursing notes?---Yes, they are.

Dated 1 and 2 April, the day of the operation and the following day?---Yes.

And they go into further, although I do not know whether we will be referring to those. The next page is the operation record?---It is.

And that shows, at about point 3 in the middle, the commencement and termination times of the operation?---Yes, it does.

And what does that say, "1.20" - - ?----"1.20, 2pm".

1.20 to 2pm?---I think it - I'm not sure if it says "2.10", it could be 2.10 or it could be 2.

And the next one, two pages of fluid charts covering 1 and 2 April. Is that right?---They are.

Now, we should perhaps have included this. Have a look at this. Is that a copy of the recovery room report?---It is.

And does that show nil pv loss?---I does....... ....

So the combination of those notes show, doe they, doctor - and correct me if I am wrong - that the operation concluded at 2 or perhaps 2.10pm? Is that right?---Yes, that would have been the point in time at which the patient was taken off the operating table and transferred to recovery.

"Nil pv loss" in the recovery room at 3.10pm?---That is correct.

"Nil pv loss at 3.30pm"?---Correct.

You saw her at 6 pm?---Yes.

"Nil pv loss at 9pm?"--- Yes.

And what does "obs stable" mean?---Observations, blood pressure and pulse.

Then on the 2nd, 2 am, "passed 200 milliliters of urine"?---Yes, that is right.

"6 am, passed 400 milliliters of urine"?---Yes. In fact I think that is 7 am, I beg your pardon. It is 7 am.

"7 am", is it, "passed 400"?---Yes.

Thank. you. Is there a note 6 am - the nurse's note, "pv loss slight, old"?---Yes, there is.

And what does that mean?---Means it is altered blood. Blood denaturates as it gets older and changes colour and "Slight old loss" means that it is a little bit of blood appearing vaginally which is collected in the top of the vaginal vault at the time of operation and virtually 100 per cent of hysterectomy patients collect at least a certain amount of blood in that area.

"8 am, passed urine 400 mils"?---7am, yes.

That is 7 am?---7 am I think that is, yes.

Well, my little summary has 6 am and 8 am, "passed 400 mils". Is that not right? That is wrong. Just one at 7 am?---That's right. I think the fluid chart says 2 am and 7 am.

2 am and 7 am, thank you. You saw her before 9 am on the 2nd?---Yes

"At 11 am, 100 mils of urine passed, blood-stained"?---That's right.....

....

MR RICHARDSON: What do you say about the presentation prior to the 11 am entry as to whether that indicated anything or did not indicate anything other than what you would expect?---Totally normal, post-operative course.

Thank you. "11 am" the entry of "100 millilitres of urine passed, blood stained". Is that right?---Yes.

"2pm, small amount pv loss, however quite a lot of blood noted in last pan and urine"?---Yes, that is right.

"3pm, 22 mils of urine?---Yes.

"7pm, 180 mils or urine, blood-stained"?---Yes.

"9pm, 130 mils or urine"?---Yes.

"10pm, 80 mils of urine"?---Yes.

"10.30pm, main problem is incontinence of urine"?---Yes.

Right. Now, so what does that indicate - those entries after 11 o'clock?---11 o'clock in the morning.

Yes?---The patient was continuing to pass urine. One of those specimens was blood-stained. I think if you go back to the fluid charts, at 3 pm she had urine soaking her pads at that time. That is the first time that leakage of urine has been noted I this patient and the comment is made again at 22.30 that her main problem is incontinence of urine so appears it started at about 3 o clock.

Now, you did not see her then until 11 o'clock on the 3rd. Is that right?---That's right. This situation was not conveyed to me. They did - - -

Was not brought to your attention prior to - - -?---Correct.

Further evidence was put to the defendant in relation to the fullness or otherwise of the plaintiff's bladder at the end of the operation:

Now, going back to the early pv and urine loss situation post-operatively, what does that indicate if anything in relation to the degree in which the bladder was full at the conclusion of the operation?---Well, the patient did not pass any urine until 2 o'clock the following morning and she then only passed 200 mils so the inescapable implication is that at the end of the operation there was very, very little urine in the bladder which would be compatible with the 20 mils that I mentioned before.

Thank you. And she said in-chief that she - she said in her own evidence I should say that immediately post-operatively, when she was conscious, she had a sense of urgency without being able to produce urine?---Yes.

Is that indicative of anything?---No, it's a very common symptom, post hysterectomy. It's associated I believe from separating the bladder from the uterus. I suppose you could say the bladder is separated from the uterus, it's sort of man-handled off the uterus if you like. And I believe that it makes the bladder sensitive and this sensation of wanting to pass urine is a very common immediate post operative sensation...... Now what was the position of the patient in the operation?---The patient was in what's called Trendelenburg position which is tilted head downwards.

And does that have any relevance, or would it have any effect on urine which was leaking from a fistula at that stage?---Well, if you had a hole in the bladder at that time and she was tilted head down, even with 20 or 25 mils of urine in the bladder, you would expect to see some leakage from the bladder.

And you didn't? ---And I didn't.

And - well, you've already told us that you palpated the bladder, after the stitches were inserted, again still no sign of leakage?---Correct.

Now did you also insert a provac drain?---I did.

Into the pelvis?---I did.

Is that a suction drain?---It is.

And how long does that remain in the patient?---We leave it in until all drainage has finished. And that can be anything from 24 to 48 hours.

So that was in post operatively?---It was.

And was - if Professor Bennett's theory had been correct, would you have seen urine through that provac drain?---Yes.

And none was observed?---Correct.

In cross-examination the witness was also asked about the surgery and in particular, the division of the bladder from the uterus:

Right. The attachment of the bladder to the uterus is mediated, I think, by a peritoneal layer, is it not?---Yes, it is.

...

That although the uterus and the bladder are connected, there is a layer of peritoneal or peritoneum between them?---Yes.

And that is of what gauge?---About a centimetre, little bit less than that.

So that the necessary division of the bladder from the uterus is carried out through this peritoneal layer?---Yes.

And that can be accomplished without any undue risk of damage to the bladder? In a case such as this?---Yes.

And at what stage - have I jumped ahead too far in asking about that or is that the stage we're at now? ---You've jumped a little bit. Having opened the uterovesicalpouch at peritoneum, the bladder is then dissected downwards and in the case of an uncomplicated hysterectomy, the vast majority of opinion is that it is pushed down gently with a gauze swab.

And that is to remove the bladder?---That is to push it down to expose the vesico cervico ligament.

Right. This is a ligament that operates, as it were, is it to hold the bladder and uterus together?---Yes. The cervico vesico ligament in fact attaches the bladder to the upper part of the cervix, yes.

Cervix, yes. And by the time you reach that you have completed the division through the peritoneum which allows the bladder, but for its connection from this ligament, to be pushed out of the way?---Correct.

Right. And you would not expect in a normal, simple hysterectomy of this type to encounter any problems whilst doing that part of the division?---No.

You then - is the bladder then removed entirely from its connection to the uterus but for the vesico cervical ligament?---Yes.

And it then becomes necessary, I think, to divide that?---Correct.

And you've heard Professor Bennett say that he in fact uses scissors for that, other might use a scalpel, you use diathermy?---Yes.

Right. What is the actual diathermy implement that you introduced into the field then?---It's a blunt needle. Basically it looks like a pencil with a switch attachment to activate the diathermy. The actual diathermy point used under these circumstances is perhaps about a millimetre thick.

Yes?---And two or three millimetres wide. Like a very small tiny spade if you like to think of it that way.

Is this a ray of some sort that emits from the end of this implement?---No, it is electrocautery and you can have the electrocautery switched on to pure coagulation in which case it will coagulate what it touches or pure cut in which it will cut through things that it touches or a mixture of the two where it will both cut and coagulate. As I indicated I use that method to divide that ligament because as Professor Bennett said yesterday the lateral margins of that ligament, that is out to the side, have got a fairly rich plexus of small blood vessels running alongside them and if you divide that with a knife or with scissors, my experience has been that you can very often get troublesome oozing from those vessels at the lateral margins at the side edges which obscures your field of vision. I found that using the diathermy is a very much better method. I haven't developed that particular method myself. It is one of the methods that I watched all my consultants using in earlier times.

Yes, and this starts only a source of heat, then?---It is.

How close to the bladder is it operating when you are diving the ligament?---At the setting - you can adjust the setting of course for either low grade or high grade cut or coagulation. At the fairly low grade I use because you only need a very low grade if you lift the bladder up with a pair of forceps as you cut, the diathermy is well away from the bladder wall.

I am sorry, you are lifting the bladder with forceps at this point, are you?---Yes, I push the bladder down, lift it up so that I can see that area clearly and then just cut across the diathermy.

So how far do you say then the operative part of the diathermy machine is from the bladder at that point?---It's about a centimetre, centimetre and a half with the bladder on tension.

Because we know in this case, do we not, where the fistula was?---Yes.

And it was - let me not try and guess it - between the upper part of the vault of the vagina and the bladder?---Correct.

And that of course is approximate to the area where you were using the diathermy machine?---Yes, but not dangerously close.

Certainly the location of the fistula excludes it having been caused whilst you were carrying out the division of the peritoneum prior to your reaching the cervico-vesical ligament?---Yes.

The witness was then asked about the point at which during the procedure, he believed the fistula could have occurred:

THE WITNESS: I thought about this a lot and I think there were obviously three potential times at which damage to the bladder can occur. One is when you are pushing the bladder down with the gauze swab as advocated. It is possible I imagine that if the bladder wall is particularly thin, separating the bladder from the uterus and the cervix has already been discarded as a traumatic event - an unnatural event I think was said. At the time that you push the bladder away I imagine that with a thin wall bladder it is possible to get trauma with possible subsequent necrosis. I think that is theoretically possible. At the time you cut through the cervico-vesical ligament, if you have not got the bladder on tension and you are not pulling on that area, then it is possible to traumatise the bladder at that particular time and both of these sorry, I beg your pardon - and if you cut the bladder at that particular time, then certainly it should declare itself by the leakage of urine into the abdominal cavity unless you have an in-dwelling catheter in the bladder in which case all the urine will be going down the catheter.

MR BARTLEY: But the bladder was empty, was it not?---Yes, it was.

Just pause there, doctor.

HIS HONOUR: Is that fair? I mean you should let him finish.

MR BARTLEY: I am sorry. Yes, of course.

Go ahead, doctor?---Even if there are a few drops of urine in the bladder and you were to cut a hole in it for example (a) it should become - a fistula of half a centimetre diameter should become perfectly obvious because you see the inside, the mucous membrane of the bladder pouting out at you. Every gynaecologist at some time in his life has opened a bladder and then promptly repaired it again so I have done that so I can tell you what happens when you open a bladder. You see the mucous membrane pouting out at you and if there is any urine in the bladder at all it leaks out. The third time - I beg your pardon - the third time at which it is possible to traumatise the bladder is at the time that you are closing the vaginal vault where, as you know, it can be incorporated - the muscle wall of the bladder can inadvertently be stitched to the vaginal vault.

....

Now, that fistula is located in the area where the suturing towards the end of the procedure was carried out?---Well, suturing towards the end of the procedure closes the vault of the vagina, yes.

That's right. And that's where this fistula was found?---Yes.

And do you think that the fact that it was found to be there would incline you towards the view that the fistula occurred whilst you were doing the stitching?---No.

Why not?---Because you're manipulating the base of the bladder under three circumstances: one, when you're separating the bladder from the uterus with a gauze swab; two, when you're dividing the cervico-vesical ligament; and three, hopefully you're not, but at the time you're closing the vaginal vault.

But you're confident, aren't you, that you didn't cause it whilst you were manipulating the bladder out of the way?---I can only theorise as to when it was caused, because I didn't see anything untoward during the course of the operation or at the end of the operation.

But you're confident, aren't you, that you didn't cause it whilst you were pushing the bladder out of the way in the accepted manner?---I don't know when it was caused, I don't know when it occurred, therefore I can only theorise on the three possibilities that I've described to you.

You don't think that the location of the fistula might tend you towards one view rather than another?---No, I don't. I think the think the size of the fistula might tend me towards one view rather than the other.

....

Cystogram results revealed that the fistula was approximately 2 millimetres in size. The defendant gave evidence that the size of the fistula did not prevent him from detecting it during surgery. He explained that even with a hole in the bladder of that size, urine in the bladder would still be detected, as would urine leaking into the operation field and exiting via the drain.

MR BARTLEY: Doctor, in your opinion, is it likely that the fistula that happened at operation was probably a two millimetre one?---I don't know. I can't say. I have no evidence on which to go and I am not a fistula expert.

You've seen the fistula?---I have.

And it was two millimetres when you saw it?---That was the assessment from simply looking at it, yes, indeed.

And if it were a two millimetre fistula, do you think that might explain your failure to observe anything untoward during surgery?---No. I think if there were a two millimetre hole in the bladder, you should still see it there's any urine in the bladder - and there was, towards the end of the operation - you should still see urine leaking into the operation field and you should subsequently see it coming up the drain.......

.... Right. Doctor, you did mention earlier that you've had occasion, from time to time, to repair bladders that have been damaged through the process of a hysterectomy?---Yes.

How often has that happened to you?---I think about five times in 30 years.

And unrepaired they would have gone on to be fistulas?---Unrepaired in those circumstances the urine would have simply leaked into the abdominal cavity. I mean these were large holes and they are associated invariable with difficult hysterectomies at the time of separation of the bladder. It becomes perfectly obvious.

So in this particular case there should have been no reason to cause a traumatic fistula?---No obvious and immediate apparent reason, no.

If one were to accept that there were a traumatically caused fistula here then how would you account for it?---In this particular patient I would say unhesitantly misadventure.

Yes. That's a term that we hear. Tell us how it came about. What process, if it were a traumatically caused fistula? What, in your view, would have caused it if that is what happened?---Given the size of the fistula - and let me repeat again that I'm not an expert on fistulas - as Professor Bennett said yesterday he wasn't an expert on fistulas and neither am I - I believe that a tiny fistula can be caused by suturing inadvertently incorporating part of the muscle wall of the bladder into the vaginal vault. The muscle of the bladder - it is not as simple as it sounds - the muscle wall of the bladder is not necessarily a clear-cut point. It can be very attenuated and very drawn out. Some of it can be almost invisible so that it is perfectly possible, even with care, to incorporate the muscle into the vaginal vault and the opinion of most gynaecologists is that it is done far more often than it is recognised without fistula formation. The cause, in this case, to which I lean because of the size of the subsequent fistula is that it occurred at the time of the separation of the bladder from the uterus and before the division of the vesico cervical ligament. Because it occurred using a process that I have used literally hundreds of times before without difficulty and because there was nothing untoward in this particular patient I am inclined to the view that this was a particularly thick wall bladder. You commented on misadventure and you drew me to that particular aspect. My personal belief is that if you carry out an operation with a totally satisfactory technique that you've been taught to the total satisfaction of the people who have taught you over the years and which has been successful on hundreds of occasions before that if on one occasion a patient develops a complication then that is misadventure and this happens in the course of surgery. ...

The defendant was then asked whether the fistula could have been caused during suturing:

Doctor, do you agree that the site of the fistula is consistent with its having been caused during the suturing intended to close the vagina?---I don't know. There are three possibilities and I really am unable to determine which.

Do you agree that it is consistent with that?---Yes.

And do you agree that it is more consistent with the fistula having been caused during the suturing than the fistula having been caused at the time of separation of the bladder before division of the ligament?---No.

What process do you say would cause the fistula during the separation of the bladder prior to the division of the cervico-vesical ligament?---I believe that if you have a particularly thin bladder wall I it is susceptible - it is more sensitive to trauma than a bladder of normal thickness, the bladder is separated using a gauze swab which is a traumatic and abrasive event. I believe that in a particularly thin bladder wall it is possible to suggest that that causes bruising to the bladder wall. Bruising is essentially bleeding, a collection of blood, and that if the bladder wall is thin enough it will then necrose over a variable period of time.

And do you put that forward as equally consistent with the trauma having been caused during the suture?---In this case, yes.

Were gauze pads applied to the area where the fistula was found?---No.

What traumatic process, the, do we envisage that has the trauma causing the fistula whilst the gauze pads are being used to remove the bladder out of harms way?---I beg your pardon, the answer should be yes. You are pushing the bladder away with a gauze. The bladder, of course, is a round structure and you're progressively pushing it away, so that you start at basically the top of the bladder and push it progressively downwards so that as the gauze swab goes further downwards, and there are pictures in textbooks of a finger disappearing behind the bladder with a gauze on the end of it, so you get closer and closer to the base of the bladder, so my initial answer - I was thinking of where one started the separation, as you went on I thought where one finishes it.

I see, so you can exclude the trauma as having occurred whilst you are dividing the peritoneum that separates the bladder from the uterus?---Yes.

But you are putting forward as a theory that the trauma which caused the fistula was caused by the application of force on the gauze pads to push the bladder out of the way, is that what you are saying?---Application of force as normally applied, yes.

And you don't find that a less likely scenario than trauma caused by the suturing?---No, I don't.

You have a clear picture in your mind as to the location of the fistula?---I do.

And what sort of force would have been necessary via the gauze pad to have caused the trauma necessary to cause the fistula at the at point?---Well, that, as I have explained, would depend to a very large extent upon the thickness of the bladder wall. The force applied to gauze swab in an uncomplicated hysterectomy to dissect the bladder is really very minimal. It is no more than just a firm stroke of that type.

Yes. And, presumably, you take great care, do you not, when carrying out that process, to ensure that you are not traumatising the bladder?---correct.

There was nothing I this case - I withdraw that.

There has been no suggestion in any of the medical reports you have read relating to subsequent procedures to suggest that this patient had a particularly thin walled bladder, is there?---No, and there was nothing to suggest to the contrary.

No. She has been operated on by three urologists since you?---Yes.

Have you seen any suggestion put forward by any of them that the bladder wall was unduly thin?---I've seen no comment about the thickness of the bladder wall at all.

Is it something that is discernible at surgery?---Usually not.

How does one discern it then?---Well, if you're saying "is it discernible at surgery", referring to hysterectomy, then the answer is no.

At the type of surgery that Mrs Causer's had since?---Subsequently, yes, with the proviso that the bladder wall of course will have some thickening due the inflammatory reaction caused by the fistula.

Would you expect a competent urologist to have noticed whether the bladder wall was unduly thin?---I think the degree of variability is fairly small. I think it's a very, very difficult thing to say, "This bladder wall is unduly thin", or "this bladder wall is unduly thick".

....

Do you not think it more likely that the sharp end of the needle used for the suturing is the more likely cause of the trauma?---I repeat, I'm not an expert on fistulae, but within that limitation the answer to the question is "no".

But you're an expert gynaecologist, aren't you?---Yes.

You've carried out very many of these procedures?---Yes.

And you've had occasion from time to time to inflict trauma on the bladder?---Yes.

I'm asking you from that point of view, do you not think it more likely that the trauma that caused this fistula was occasioned during the suturing process?---No, I don't.

Is there any other possibility that you wish to put forward?---No, I've covered all three possibilities and I've selected the one which I believe is the most reasonable explanation of the three.

That is the one that has the trauma caused by the gauze pad?---The separation of the bladder using the gauze swab, yes.

And you believe that now to be the more likely, do you, than trauma caused by the suturing?---I believe so on balance. You're asking me to talk about something of which I've no previous experience, on something on which I'm not an expert, and to make an educated assessment on the basis of my previous gynaecological experience. And within those limitations that's my opinion. ....Why do regard trauma from the gauze pad as more likely than trauma from the needle?---Because I've had six years to think about it. I think trauma from the needle is an unlikely scenario and I believe if a fistula occurred from trauma from the needle it must of necessity be very, very small fistula. And we have to believe the evidence that we have, and that is the cystogram, which showed that this was not a small fistula. I believe it's impossible to cause a large rent in the bladder half a centimetre in diameter with a very small needle.

But you could cause it with a gauze pad?--I believe that if we accept that this may have been a thin walled bladder, I believe that a gauze pad - it's certainly possible to suggest that a gauze pad can cause a degree of bruising.

HIS HONOUR: You were not aware at any stage during the operation that a fistula was there?---No, your Honour.

Had been caused?---No, your Honour.

Either by pushing aside the gauze pad or by the use of the needle?---No, your Honour.

And you're there looking at it?---Yes.

So you were surprised, was it 2 April, when your were told - -? ---I think 3 April I believe, your Honour, yes.

You were surprised when you were told on the 3rd that there was this discharge?---Yes, indeed, your Honour.

Consistent with a fistula?---Yes, your Honour.

Because what develops traumatically is not the fistula, is it, its the hole in the bladder which then develops into a fistula?---Not entirely. The method that I'm favouring, with all the provisos that I've outlined, is that what happens is that in separating the bladder with the gauze swab, there is of necessity a degree of trauma, you can't avoid it. Separating the bladder is an unnatural event, there is a degree of trauma that cannot be avoided. What I'm suggesting is that with a thin wall bladder, the separation of the bladder with the gauze swab causes a certain amount of bruising. That bruising causes necrosis of tissue. If you get a collection of blood somewhere, it can cause breakdown of tissue and it's the breakdown of the tissue that causes the hole in the bladder and once there is a hole in the bladder, then urine follows the line of least resistance and the line of least resistance closest to the base of the bladder is the suture line in the vault of the vagina.

The defendant then called Dr John Chiragakis. He is a local medical practitioner carrying on a specialty in gynaecology. He gave evidence to the same effect as the defendant, namely that there was no operative hysteroscopy being performed in Canberra in 1990 and that such a technique would not be appropriate for a fibroid the size of the plaintiff's.

In relation to the necessity for the plaintiff to undergo a hysterectomy he said:

The histology report shows that the fibroid - wrong - that the uterus weighed approximately 337 grams?---Yes.

Is that a gross enlargement?---Five times its normal size.

Does that confirm that hysterectomy was the necessary procedure in this case?---Yes.

He agreed with Professor Bennett, that a fistula can only have two significant origins, either frank trauma at the time of surgery causing a hole, or damage to tissue causing necrosis which causes a fistula. In the case of necrosis, he did not believe that the onset of symptoms approximately 24 hours after the operation excluded a fistula forming as a result of necrosis.

As to the cause of the fistula, he said:

If the fistula had opened at the time of operation, Professor Bennett suggested that it would not be perceived because urine would collect in the pelvis, until if found its way out through the line of least resistance, which is stitches in the vault. But if you assumed that there was a provac drain into the pelvis, does that have some relevance?---Yes. First of all, it wasn't a fistula, a hole in the bladder. A fistula is the communication between two hollow viscae. But that if you had a hole in the bladder and you had an exu-drain or a redivac or provac drain which is draining any contents out to the pelvis or out of the abdominal cavity, I would expect to see some urine in that provac, right from the word go.

Would it also be relevant, with a patient with her head down, that a leak into abdominal cavity would be noticed?---Yes.

And if the operating surgeon palpated the bladder at the end of the operation, with a small amount of urine, would one expect to see signs of the hole?---Yes.

And do those factors then, if you accept those three things indicate, in your opinion, that there was no hole in the bladder by the end of the operation?---I think it is very unlikely.

And does the timing in the nursing notes and the fluid charts indicate to you that the probability is that the fistula did not form until 24 hours or so after the conclusion of the operation?--Yes. I thoroughly looked through those notes.

If the fistula didn't form until 24 hours or so after the operation, is that consistent with the fistula being caused by a misplaced stitch, causing immediate trauma?---Unlikely at that early stage.

If a fistula had been caused by a misplaced stitch, would it be consistent with the fistula being 4 to 5 centimetres in diameter?---Very unlikely.

Is there an explanation for the cystogram showing the fistula at 4 to 5 centimetres in diameter and some weeks later it being observed at approximately 2 millimetres in diameter?---Yes, with my experience and reading over the years, there's no doubt that there is a tendency for these holes to get smaller by fibrosis, that is scar tissue development. So, it would be consistent that it had a small hole, say 3 or 6 or so or 9 or 12 week, much smaller than the original one.

Indeed, that's the hope when you discover a fistula after an operation, that you put an in-dwelling catheter and you hope it will close itself?---Absolutely.....What do you say about any connection, causal or temporal, between the use of diathermy, as described by Dr Stafford -Bell, and trauma or the causing of a hole?---Well, I believe that the diathermy to the cervico-vesical ligaments is a way of controlling bleeding and I thought a great deal about his and these are usually on the lateral or outer aspects of the bladder. Then the central part, of course, is the cervix and the uterus and as far as the causation by the diathermy I find it extremely unlikely because the actual fistula was in the mid line.

So, in layman's term, the fistula is in the wrong place for it to have been caused by the diathermy?---Correct.

So, with all those factors taken into account you come back to the most likely cause being necrosis following the trauma of separation, is that right?---Yes.

In relation to the increased incontinence after the second repair operation, the witness said:

Now, after the second operation the patient had 12 months of minimal incontinence which she acknowledges, at least one view of her evidence, was the same as her experience of incontinence pre hysterectomy. Does that suggest that the second operation was successful?---Yes.

She then had silver nitrate treatment and complained four days after her last silver nitrate treatment that she experienced increased incontinence?---Yes, I read that.

What is your view about whether it silver nitrate treatment was appropriate at the time or not?---I was quite surprised to see that. I thought it was most inappropriate and although there is always a temptation to put silver nitrate on any granulation of proud flesh at the vault with someone who already had had a vesico-vaginal fistula repaired I think it would be an absolute no-no.

In cross-examination, Dr Chiragakis addressed the statement in his report of 9 January 1997 where he claimed there must have been some urine in the plaintiff's bladder, because it had not been catheterised pre-operatively. The witness explained that he was not privy to the hospital notes at the time of writing that report, and having read them since admits that the statement was incorrect.

When asked about the location of the fistula and the inferences to be drawn from this when explaining the cause of the fistula, the doctor said the following:

You've told us that the location of the fistula militates against its having been caused during the division of the cervicovesical ligament?---Yes.

Is that right?---That's right.

But it similarly militates towards the fistula having been caused by the bladder becoming involved in the suturing process?---No, not necessarily.

Not necessarily, but it militates towards it, does it not?---No.

Not at all?---Not at all. I mean, we're talking about the hypothetical now, because we've assumed now that there's been no hole in the bladder, at the time of operation. I think that that's a fair and reasonable assumption. Now, therefore, we've got an intact wall which may well be ontused, bruised and perhaps necrosing in the centre part where the blood supply has been affected. So it doesn't militate either from one or another in my opinion and I would have thought that in fact, if you had a rent the size of 5 millimetres, it militates probably against the stitch and more in favour of contusion and necrosis - contusion and bruising and necrosis....

The inference to be drawn from the timing of the onset of incontinence was stated by the witness as follows:

The timing of the appearance of incontinence strongly suggests a traumatic, as opposed to necrotic, origin for the fistula?---No, I think that - I've done a lot of soul searching, not because of Dr Stafford-Bell, but I'm intrigued about this area and I think that it could be due to contusion and necrosis - albeit very, very early. But with a rent like that - five millimetres - find it very difficult to accommodate the idea that it was due to a suture. ....

Would you exclude the possibility that it showed itself at 22.40 the day after the surgery, completed at about 1400?---I have done a lot of soul searching thinking about this and I really cannot reconcile that a stitch in the bladder would have manifested itself with a hole within the 48 hour period.

What about if the needle were to have caught the bladder?---The needles are very, very small, relatively small, the actual - you can prick the needle, much the same as you can prick bowel and you don't get faeces pouring out through a pricked bowel using a needle itself. So I think the needle per se isn't the issue, I think the issue is the suturing causing an necrosis in - to a depth of the tissue when the figure of eight is stitched into the bladder.

And then that process setting in train a pathology that leads to a fistula?---Yes.

That fistula which may manifest itself with a couple of days, it may take 13 days?---I think it's unlikely a couple of days, I mention - at least three plus days or four days. That's the vast majority of the presentation of the psycho-vaginal fistulas due to surgery insertion.

I prefer the evidence of the defendant and the defendant's expert witnesses as to the cause of the plaintiff's fistula. It was common ground between of the medical experts that a fistula is caused either by trauma or by tissue necrosis. I accept the evidence of the defendant and Dr Chiragakis that the defendant would have detected a hole in the bladder at the time of the operation, especially as the patient was tilted downwards. The were both impressive witnesses who gave their evidence in a balanced professional way. But I do not prefer their evidence on their demeanour alone. Their evidence on the formation of the fistula is in my opinion more cogent.

On the evidence, I find it extremely unlikely that a fistula that was approximately 4 - 5 millimeteres in diameter would not have been detected at the end of the operation, particularly as the defendant claims that he inspected the bladder and noted that it was filling with urine in the normal fashion. I find it unlikely that the hole was caused by operative trauma and find that it is more likely that it was a result of tissue necrosis. The defendant was an experienced surgeon and gynaecologist and a hole caused by trauma would have been easily detectable. I accept that if the hole had been caused by the surgery, urine would have been observed in the provac drain and the abdominal cavity as well as during the palpation of the bladder at the end of the operation. I accept the evidence of Dr Chiragakis that a fistula that was approximately 4-5mm in diameter would have been likely to show incontinence almost immediately, even if there was only 20-25 mils of urine in the bladder at the conclusion of the surgery, as stated by the defendant in evidence. If trauma caused the fistula, then it follows that leaking would have been visible. The nursing notes and fluid charts suggest that it did not occur until 24 hours after the operation.

The provac drain inserted into the pelvis post-operatively did not drain any urine. I accept the evidence of Dr Chiragakis that if there had been urine present during the operation, the drain would have revealed that. The first passing of urine was approximately eleven and a half hours after the operation and then approximately 200 mils was passed. I accept the evidence of the defendant that this is a small amount and further supports the conclusion that at the end of the operation there was very little urine in the bladder. The use of the in-out catheter was clearly satisfactory as the evidence is that the bladder was empty. This coupled with the fact that the plaintiff was in the Trendelenburg position clearly ensured the bladder did not accumulate a dangerous amount of urine during the surgery so as to push the bladder over into the operating field. On the evidence, this is the ideal operating environment that reduces the risk of trauma to the bladder. It would appear that this could be achieved by either type of catheter. Clearly the defendant secured this safe operating environment I am not satisfied on the balance of probabilities that the defendant acted with a lack of reasonable care and skill and carried out the operation in such a manner as to cause the fistula.

It cannot be discounted that the plaintiff had varying thickness of the bladder wall that could have been bruised merely by applying gauze to that area to reposition the bladder. However, moving the bladder out of the way is a standard procedure in an operation of this type. I accept the evidence of the defendant that a thin bladder wall is not necessarily visible to the naked eye.

There was some history of stress incontinence prior to the hysterectomy. Certainly the degree and extent of that incontinence was less than that which the plaintiff experienced at times after the hysterectomy. However, I accept the evidence of Dr Millard that incontinence of this type clearly could be aggravated by two subsequent pelvic operations. I conclude that is the most probable explanation for the plaintiff's incontinence . This is further supported by the fact that there was no evidence of a hole at the time of completion of the operation or seemingly within approximately 24 hours of the plaintiff returning to her hospital room after the operation.

I am mindful of Professor Bennett's evidence that the speed with which the fistula occurred is more consistent with it being caused by trauma as opposed to a stitch being made out of place. It is common ground that separating the bladder from the uterus is an unnatural procedure for the body because it requires pulling apart two separate tissues that were intended to be attached to each other. In a procedure such as this, it is inevitable that there will be some trauma to the body by its very nature. Indeed, even Professor Bennett acknowledged that not every occurance of a fistula is the result of negligence on the part of the surgeon. Based on the evidence, I find it more likely that the plaintiff's fistula occurred as a result of the naturally occuring trauma arising out of separating the two tissues which led to bruising and ultimately, necrosis.

Accordingly I am not satisfied on the balance of probabilities that the defendant was guilty of negligence or breach of contract in the performance of the operation.

Res Ipsa Loquitur

The plaintiff has raised the doctrine of res ipsa loquitur as part of the particulars of negligence alleged against the defendant.

"Res ipsa loquitur is no more than a convenient label to describe situations, where, notwithstanding the plaintiffs inability to establish the exact cause of the accident the fact of the accident by itself is sufficient, in the absence of explanation, to justify the conclusion that must most probably the defendant was negligent and that his negligence caused the injury... unfortunately the use of the Latin phrase to describe this simple notion has become a source of confusion by giving the impression that it represents a special rule of substance in law instead of being only an aid in the evaluation of evidence, an application merely of the general method of inferirng one or more facts in issue from circumstances proved in evidence." (The Law of Torts 8th ed. pages 315-316.)

A plea of res ipsa loquitur can be raised in medical negligence proceedings if the circumstances so justify: Cassidy v Minister of Health (1951) 2KB 343. But it has no application in circumstances where an alternative explanation for what occured, not involving negligence, is open.

"The accident that happened in this case when it so rarely does happen, does not compel as, in effect was argued a finding of negligence. An unfavourable result is not synonymous with negligence. A surgeon is not an insurer." (Kapur v Marshall 85 DLR (3d) 556 at 573-74)

"The human body is not a container filled with material whose performance can be predictably charted and analysed. It cannot be equated with a box of chewing tobacco or a soft drink. Thus, while permissible inferences may be drawn as to the normal behaviour of these types of commodities, the same kind of reasoning does not necessarily apply to a human being. Because of this, medical science has not yet reached the stage where the law ought to presume that a patient must come out of an operation as well or better than when he went into it. From my interpretation of the medical evidence of the kind of medical injury by the plaintiff, it could have occured without negligence on anyones part. Since I cannot infer there was negligence on the part of the defendant doctors, the maxim of res ipsa loquitur does not apply. (Girard v Royal Columbian Hospital 66 DLR 3(d) 676 at 691.)

See also O'Sullivan v Little (Miles CJ, unreported 10.8.95) where it was held that the doctrine of res ipsa loquitur did not apply because

"the balance of medical opinion in the present case does not regard the failure of the sterilisation procedure performed by the defendant as indicative of what a proper professional skill on his part either as a probable inference or as an acceptable hypothesis" (p 17)

I accept the submission on the part of the defendant that the circumstances in this case are very different from the case where, for example, a swab is found in a patient's body after an operation. (See Mahon v Osborne (1939) 2Kb 14.) Only in those kinds of circumstances does the doctrine of res ipsa loquitur have any application.

The doctrine cannot apply in this case because injury to the bladder may occur despite all precautions and there is another explanation for the formation of a fistula in the evidence of Dr Chiragakis. Even Professor Bennet in his evidence on behalf of the plaintiff conceded that a fistula may occur without negligence. He accepted that not all of the accidents "occur because of the unexpected difficulties encountered during the operation". The content of his evidence on this subject was that damage to the bladder can happen inadvertently and without any want of care by the operating surgeon. Accordingly there is in this case no room for the operation of res ipsa loquitur.

Duty to warn of a material risk

The third aspect of the plaintiff's claim is that the defendant was required by contract and in tout to use all due care and skill in the provision of advice to her and that he failed to discharge this duty when discussing the risks associated with undergoing a hysterectomy. The principles that determine whether a medical practitioner has a duty to warn a patient of the risks associated with proposed medical treatment are laid down in Rogers v Whitaker (1992) 109 ALR 652.

It is necessary to consider with some care the application of the principles enunciated by the High Court to the facts of this case. In that case an ophthalimic surgeon had performed surgery on the respondent's right eye. She had been almost totally blind in that eye for many years. The purpose of that surgery was to improve the appearance of the right eye and significantly restore sight to it. It was common ground that the operation was conducted with the required skill and care. The surgeon was found liable by the trial judge because he failed to warn the patient that as a result of surgery on her right eye she may develop a condition in her left eye. This did in fact occur and the patient ultimately lost all sight in her left eye.

The patient commenced proceedings against the surgeon for negligence in the Supreme Court of New South Wales and obtained judgment. After an unsuccessful appeal to the Court of Appeal of NSW, the surgeon appealed to the High Court.

The evidence at the trial was that this condition of sympathetic aphtalmia in the left eye occurred once in approximately 14,000 such procedures, although there was also evidence that the chance of occurrence was slightly greater in this instance where there had been an earlier penetrating injury to the eye operated upon. The sight in her right eye had not been restored in any degree by the surgery, hence the respondent was almost totally blind.

The trial judge found that the applicant's failure to warn of the risk of sympathetic ophthalmia (the condition occurring in the left eye) was negligent.

He was not satisfied that proper medical practice required that the applicant warn the respondent of such a risk if she had expressed no desire for the information - he concluded that a warning was necessary in light of her desire for the relevant information.

The Court of Appeal dismissed the appeal on both liability and damages. The surgeon appealed to the High Court on the questions of breach of duty and causation.

As to breach of duty the High Court said:

"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 High Court was of the opinion that the standard of reasonable care and skill required in that situation was that of an "ordinary skilled person exercising and professing to have that special skill..." The surgeon was found to have failed to observe that standard by omitting to acquaint the patient with the danger of the damage to the left eye as a result of the surgery.

The High Court dealt with the principal issue in the case, that is, whether the surgeon's failure to advise and warn the patient of the risks inherent in the operation constituted a breach of duty

The High Court discussed the dangers it saw in applying the Bolam principle, derived from Bolam v Friern Hospital Management Committee [1957] 1 WLR 582. The principle is that a doctor is not negligent if he acts in accordance with the accepted medical practice at the time, even though there may be doctors who hold a contrary opinion.

The crux of the Bolam principle is that in medical negligence matters, a doctor is not automatically deemed negligent simply because his conclusion or procedure is different to that of other practitioners. For a practitioner to be found negligent he must have failed to exercise the "ordinary skill of a doctor practising in the relevant field."

In Rogers v Whitaker the patient argued that this principle should not be applied if it requires the court to defer to the medical experts.

A consequence of the Bolam principle was that when it was applied to cases involving provision of advice or information, it was of no consequence if a patient asked a direct question about potential complications or risks. It was not significant that an inquiry was made. The medical opinion of the day determined if a risk should be disclosed or not, and a request for information or advice did not have any legal significance.

The court in Rogers v Whitaker observed that the standard of care required by a skilled person was prescribed by the skill or competence of the ordinary skilled person exercising that special skill. It observed that the standard is not determined exclusively by reference to "the practice followed or supported by a responsible body of opinion in the relevant profession or trade" (at p631). In the opinion of the court, the Bolam principle was not applicable to the provision of advice or information by a skilled person. Rather, in those instances it is for the court to determine what is the appropriate standard of care, given that the prime consideration is that every person has a right to make a decision about their life. When providing information or advice, a responsible doctor should take into account the following factors:

- the nature of the matter to be disclosed

- the nature of the treatment

- the desire of the patient for information

- the temperament and health of the patient

- the general surrounding circumstances (at p632)

The court considered that if the medical profession was to decide which risks were material, this would effectively give them the power to determine the scope of the duty of disclosure and whether there had been a breach. In the case of a doctor providing advice to a patient, the issue is not whether the doctor discharged a duty imposed by professional standards, but rather, what is the patients right to be told of the risks involved in having surgery or not having surgery.

The court went on to find that there is one comprehensive duty of care to be observed by medical practitioners both when providing advice and when providing treatment. The matters to be taken into account by a court when determining if this duty has been breached will vary according to whether treatment was administered, a diagnosis was given, or advice was provided. It was acknowledged that in cases of treatment, the patient makes a choice whether or not to undergo the treatment and that it is this feature that distinguishes it from the other two, that gives rise to the elements of the duty.

The Court said (at p13)

"Because the choice to be made calls for a decision by the patient on information known to the medical practitioner but not to the patient, it would be illogical to hold that the amount of information to be provided by the medical practitioner can be determined from the perspective of the practitioner alone or, for that matter, of the medical profession. 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; whether the patient has been given all the relevant information to choose between undergoing and not undergoing the treatment is a question of a different order. Generally speaking, it is not a question the answer to which depends upon medical standards or practices. Except in those cases where there is a particular danger that the provision of all relevant information will harm an unusually nervous, disturbed or volatile patient, no special medical skill is involved in disclosing the information, including the risks attending the proposed treatment. Rather, the skill is in communicating the relevant information to the patient in terms which are reasonably adequate for that purpose having regard to the patient's apprehended capacity to understand that information."

"....The law should recognise that a doctor has a duty to warn a patient of a material risk inherent in the 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. This duty is subject to the therapeutic privilege."

In that case, the court found that the risk to the patient's good eye was material because a reasonable person in her position would have been concerned about injury to her one good eye. Therefore a warning to this effect was deemed to be necessary.

The evidence of failure to warn

The plaintiffs evidence was that she consulted her general practitioner Dr DiMarco on 17 October 1990 for an annual pap smear. In the course of that consultation she raised with Dr DiMarco the fact that for approximately 5 or 6 months of menstrual cycles her periods got slightly heavier and lasted longer than was her norm. It is unnnecessary to go into the detail about that, but Dr DiMarco advised an ultra sound to get a clearer idea of what was troubling the plaintiff. The result of the ultra sound was to discover a fibroid in the uterus and she was referred to the defendant. She saw him on 14 November 1990 at which time the defendant had the results of the ultra sound available to him. The defendant indicated to the plaintiff that the ultra sound was not clear and that it was not a good enough indication of exactly where the fibroid was or what it was doing. He suggested some special X-rays and discussed with the plaintiff four options that were available at that time. The first was that she could do absolutely nothing and just go on as she was. The next was to try hormone therapy. The next was to curette and the fourth was a hysterectomy. As to the curette the defendant told the plaintiff that that would be ruled out if it was discovered that the fibroid was in any way impinging on the wall of the utureus. As to the hysterectomy she said that she discussed that path with the defendant and specifically asked what was the procedure, what would he expect to be doing, would she still have her ovaries and would she have a weight gain. She also asked him what risks were involved in having a hysterectomy and he said that there is always an element of risk after all "you are having a general anaesethetic".

In her evidence she was asked whether there was any further discussion about the nature of the surgery and/or risks associated with the hysterectonomy. She replied "No. He just acknowledged that it was major surgery but the procedure was relatively simple and recovery was quite quick." The special X-ray was conducted and she was informed of the results by telephone. She believed the call was made by the defendant but was not absolutely certain, Subsequently, she wrote out some questions that she wanted to have answered in relation to the hysterectomy operation and caused them to be delivered to the defendant. The list of questions was Exhibit 1 in the proceedings. She was given answers to those questions which would appear to the effect that she would be off work for at least two weeks, that she would be able to resume normal sexual activity, that when she got home there should be no heavy lifting or sport for a month and that it was better to gently incease her activities for a time, then to resume her normal activities. Those answers were communicated to her by the defendant's secretary. Having received those answers, she made up her mind to undergo the hysterectomy. At the end of her evidence in chief she gave the following evidence:

If Dr Stafford-Bell had told you that there was a risk that even competently and carefully performed you might still end up with a problem of incontenence what your reaction have been in relation to having the hysterectomy? - It wouldn't have been my choice. I would have said "No".

Did you accept from Dr Stafford-Bell that the only risk was the risk that he told you, that is, the anaesthetic?. "Yes"

At that time did you have faith in the advice he was giving you? - "Yes".

The other evidence on behalf of the plaintiff was in the report of Professor Bennett dated 1 October 1993 where he expressed the opinion that where a patient specifically asks about all risks then the doctor has little choice but to discuss the majority of the risks that are specific to the operation being proposed. He went on "since damage to the urinary tract (bladders and ureters) is one of the most common complications of hysterectonomy then some mention would have been made of this fact."

The defendant was asked about the discussion he had with the plaintiff in relation to the risks of operative treatment:

Do you have an independent recollection of precisely what you said?---Not in this specific patient, but I can tell you what was my practice at the time.

What was your practice at the time? Was this a - how frequently did you follow the practice that you are about to tell us about?---With every major operation.

And what was the practice?---I began by saying that no anaesthetic is without its risks and I today qualify that by saying that in 30 years of operative practice I have only seen two life threatening anaesthetic crises in young women, both were asthmatics and both smoked, so I mention that no anaesthetic is without its risks but the risks are minimal. I at that time confined myself to major risks of operation which were the risk of haemorrhage, the risk if infection, particularly urinary tract infection from catheterising the bladder and, of course, the possible need for blood transfusion with its at least theoretical risk of transmitting AIDS at that time.

Yes. And do you believe that you followed that practice with Mrs Causer?---That was my usual practice, yes.

And are those risks all statistically much greater - I think we have already heard evidence about this - than the statistical risk of having a fistula?---Yes.

How many such operations had you conducted? You had been, I think in practice then for 23 years, is that right?---Yes.

In that period of time how many total abdominal hysterectomies had you conducted?---As an assessment between 500 and 600.

Had you ever in that time experienced the occurrence of a fistula?---No.

Was there anything in particular about Mrs Causer that made you think that the risk of a fistula was a material risk that she would be likely to attach significance to?--No.

And was there anything, generally, in relation to patients approaching hysterectomy that made you believe that reasonable people, in their position, would be likely to attach significance to?

MR BARTLEY: I object to that.

HIS HONOUR: What is the objection?

MR BARTLEY: That is - I know there is no ultimately issue rule any more, your Honour, but the evidence of the defendant on that issue is not, with respect, helpful to what the tribunal has to decide.

HIS HONOUR: Could I hear the question again, Mr Richardson? It is obviously a very carefully structured question within Rogers v Whittaker and I would just like to hear it again.

MR RICHARDSON: In your experience, did patients - reasonable patients in this patient's position, about to consider whether to have a hysterectomy, would they be likely to attach significance to the risk of a fistula?

HIS HONOUR: Well, it is confined to his experience.

MR RICHARDSON: Yes, your Honour.

HIS HONOUR: What is the objection, Mr Bartley?

MR BARTLEY: Only what I had said, your Honour, that that is a matter, the High Court tells us, for judicial determination, not for medical determination.

HIS HONOUR: No, but the question is carefully framed. Its structure is about the witness' experience rather than generally in the professions.

MR BARTLEY: Well, I suppose, with respect, your Honour, that probably is a statement that is - - -

HIS HONOUR: I allow the question.

THE WITNESS: The answer is no

....

And, did you believe it was appropriate to warn patients at the time of the risk of a hole developing in a bladder being the rate we have been told about, 1 in 200?---No.

Death is a potential consequence of a major operation, isn't it?----Yes, it is.

Is it the medical practice to warn patients that they might die?---It wasn't in 1990. It is now.

In cross-examination the defendant gave the following evidence in relation to the same topic:

And you then went on, you say, to tell hr of the risks associated with the hysterectomy?---The risks as I conveyed them at that particular time, in 1990, yes.

And I am correct in saying you have no independent recollection of that but this was your practice at the time?---That's correct.

And you've said that you told her of the risk associated with an anaesthetic?---Correct.

And I think she said to you that she'd already had an anaesthetic with no adverse side effects?---Correct.

Is that right?---That's right.

And she said to you that of course you'd carried out the tubal ligation under a general anaesthetic?---Yes, it was a laparoscopic sterilisation actually, which is lightly different procedure, tubal ligation being well outmoded by 1990.

But in any case there was a conversation between you and her in which she told you that she'd already had an anaesthetic whilst you were carrying out some surgery?---Correct.

And you recall that part of the conversation?---Yes.

And you told her in any case that the risks of anaesthetic complications were minimal, did you?---Yes.

What did you actually say to her about the anaesthetic?---I said - it was my practice at that time to say that no anaesthetic is without its risk but in a fit healthy young woman the risks are absolutely minimal.

What risks did you have in mind in relation to the anaesthetic?---Well, there are basically two difficulties with anaesthetic. One is breathing difficulties during the anaesthetic, in which the patient may go into what's called laryngospasm where the larynx shuts down and it's difficult or impossible to adequately ventilate the lungs.

Yes?---That's a rare complication, I indicated earlier I've seen it twice in 30 years in young women, both of whom were asthmatics and both of whom smoked. It is possible with the induction of anaesthetic to vomit and to inhale the vomitus into the lungs. I have rarely seen this and it is never immediately produced a problem. People have been reported as having anaesthetic collapse and death but I have never personally seen this.

And those were the sort of risks you had in mind when you warned her that there were risks attendant upon an anaesthetic?---Correct.

And then you say you spoke to her of what you described as the major risks associated with the surgery itself, as opposed to the anaesthetic?---Yes.

And those major risks were of haemorrhage?---Yes.

Haemorrhage in this particular case from what source of what complication?---Primary reactionary or secondary. Primary haemorrhage is bleeding at the time you cut something.

Yes?---It's visible, it's obvious, you control it - and it's heavy - transfuse the patient as appropriate. Reactionary haemorrhage is haemorrhage occurring as the blood pressure comes up after operation when one of two things may happen. Firstly a ligature may slip off a blood vessel, or secondly, minor blood vessels that have had no blood going through them during the course of the operation and that have been transected with the knife may then get blood going through them and you may get bleeding. This necessitates occasionally reoperating on the patient, taking the patient back to theatre, reoperating on them and controlling the haemorrhage. Secondary haemorrhage is haemorrhage associated with infection. It is extraordinarily rare in abdominal hysterectomy.

And these were the things you had in mind when you warned her that one of the major risks was a haemorrhage?---Correct.

Have you encountered these in the course of your undertaking simple abdominal hysterectomies?---Yes, if I look back over 30 years I think I have probably - if we look at the indications for transfusion as they present now in 1997, I think that it is true to say I would probably have transfused perhaps a dozen patients over the course of 30 years. The number of patients I have had to take back to theatre is perhaps half a dozen over the same period of time. I have never seen a secondary haemorrhage occurring in an abdominal hysterectomy.

Did you expect any of those to be a problem in a simple abdominal hysterectomy as you expect Mrs Causer's to be?---No.

And infection was one of the major risks you warned her of?---Yes.

The infection, I think you specified, as being from the catheterisation itself?---It's almost entirely urinary infection. You can get infection within the pelvis if the patient bleeds into the pelvis and has a collection of blood within the pelvis; what is called a vault haematoma. This can get infected, it can very very occasionally form a pelvic abscess, though I have personally not seen a pelvic abscess following a simple hysterectomy.

But infection was the possibility of leading to a pelvic abscess was one of the major risks you had in mind when you discussed this with Mrs Causer?---No, I've just said that I have never personally seen a pelvic abscess developing from a haematoma, in the straightforward vaginal hysterectomy.

But you have told us that infection was one of the major risks that you would have discussed with her?---Correct.

And included within that category of infection as a major risk is a sub-category of pelvic abscess?---Yes.

So you had pelvic abscess in mind when formulating your practice of warning patients of major risks associated with a hysterectomy?---Yes.

HIS HONOUR: Abscess and haematoma are not the same thing, are they, doctor?---No, they are not, your Honour. If a haematoma becomes infected, a lot of puss develops, it becomes an abscess/

MR BARTLEY: A pelvic abscess, your Honour, is a sub-category of infection not of a haemorrhage.

HIS HONOUR: Yes.

MR BARTLEY: The third of the major risks that you say you would have warned her of was that a blood transfusion might be necessary, and as a consequence one might contract human immuno-virus infections?---Yes, or hepatitis. And I think as Professor Bennett said yesterday, our policy as regards transfusion has changed very greatly over the years. We previously pursued a policy of transfusing patents if their haemoglobin, for example, fell below 10 grams, post-operatively. With the advent of the potential for transmitting AIDS and hepatitis, we have reviewed this considerably and the indications for a transfusion now really are if a patient has a haemoglobin below 7, post-operative.

But the risk of a medically acquired AIDS condition was the third of the major risks that you would have informed Mrs Causer of, you would say?---Yes.

And you have no doubt, do you, despite having heard her evidence, that you told her of those three risks?---That was my practice at the time. I see no reason why I would not have told this particular patient.

And you said that those three represented a much greater risk than the risk of a fistula?---Yes.

What was the incidence of blood transfusion acquired AIDS in the Australian Capital Territory in 1990 and 1991, doctor?---I have no idea, I don't know.

Would it be in the order of one in 100?---No.

One in 200?---No. Carries 100 per cent mortality.

Yes. What was the degree of risk of haemorrhaging?---At that time, with our blood transfusion policy - - -

Of haemorrhaging, doctor?---Yes. I would imagine - I mean, haemorrhage is defined as enough blood lost to justify a transfusion. With the policy we use now of course, the incidence would be very very small indeed. With the policy we were using in 1990, I would say that approximately one in 20 patients might require a transfusion.

Doctor, you said that you thought there was nothing in particular about Mrs Causer that made you think that she might be affected by any warnings past that that you might have given, that is that she didn't seem particularly interested in knowing anything further about any complications?---That's a two part question. Firstly, did I think there was anything special about Mrs Causer that I should warn her about and the answer is no. The second question was, did I think that she wasn't particularly interest in knowing anything further.

And did you think she was?---No.

You see, you weren't worried that you would scare her off the operation by talking of haemorrhage, infection or AIDS, were you?---No, and I think one is obliged to mention to patients certainly the more common complications. If a patient has a one in 20 change (sic) of having a blood transfusion, for example, as was the case in 1990, then I think one is obliged to tell the patient.

But you didn't. You certainly didn't form the view that by telling her of those things, you would scare her off having the operation?---I would put it slightly differently. I think you have to tell patients about those and then if that scares them off the operation, then it is their decision.

And of course, from a medical point of view, it wouldn't have mattered, would it, as at 1991 in Mrs Causer's case, whether she was scared off having a hysterectomy?---She would have gone on having heavy periods lasting between 16 and 14 days every 28 days.

Yes. But from a medical point of view, you've told us that the do nothing option carried with it no medical down side?

MR RICHARDSON: I object to that, your Honour, it is not what the witness said. He said there was a risk of future infections and continued bleeding.

MR BARTLEY: Infection?

MR RICHARDSON: I will just check on that.

HIS HONOUR: Further fibroids.

MR RICHARDSON: He said that there was a risk that the bleeding would get worse, with ultimate risk to health was the phrase.

HIS HONOUR: Yes, I think that is right.

MR BARTLEY: Doctor, you agreed with me that the conservative option is one that carried with it no medical contrary indication, I think was the phrase I used and you used with me?---At the present time I agreed with you.

So that it would not have mattered at that point in time if Mrs Causer had been scared off the hysterectomy, would it? ---No, I believe that my policy at the time was to tell patients the more common risks of operations and then in any case it is the patient's choice as to whether they have the operation or not.

But do you say you made a conscious choice not to tell her of the complication of a fistula?---Yes.

You had it in mind as a complication?---Yes, there were many complications and I have already indicated that my policy at that time was that I felt that it was inappropriate to concern patients with possible complications, the incidence of which was very, very small.

So you made a conscious decision not to tell her that there was a remote possibility that a fistula might develop as a result of the surgery?---Yes.

And you say you based that on a desire not to frighten her?---Correct.

Of course, Mrs Causer subsequently directed a number of questions to you. didn't she?---She did.

And did those questions indicate to you that she was interested in the procedure that you'd recommended?---In the procedure but not risks. There was not one o (sic) those questions asked about risk.

So that that didn't change your view as to whether you should inform her that there was this 1 in 100 or 1 in 200 incidents of fistulae after a simple abdominal hysterectomy?---On the basis of the questions that she supplied?

Yes?---No.

In his answers to interrogatories, the defendant stated that in relation to explaining the risk of a vesico-vaginal fistula to the plaintiff, he did not feel that it was justified to frighten pre-operative patients with details of complications which are exceedingly rare, as fistulae are. Nor did the defendant think that the risk of a fistula was a material risk that the plaintiff would be likely to attach significance to.

So that it would not have mattered at that point in time if Mrs Causer had been scared off the hysterectomy, would it? --- No, I believe that my policy at the time was to tell patients the more common risks of operations and then in any case it is the patient's choice as to whther they have the operation or not.

But do you say you made a conscious choice not to tell her of that compliaction of a fistual? --- Yes.

You had it in your mind as complication? ---Yes, there were many complications and I have already indicated that my policy at that time was that I felt that it was inappropriate to concern patients with possible complications, the incidence of which was very, very small.

So you made a conscious decision not to tell her that there was a remote possibility that a fistula might develop as a result of the surgery? --- Yes.

Dr Chiragakis said in evidence that he warns his patients that there may be some damage to the bladder when undertaking a hysterectomy and that it has been his practice to do so since the mid to late eighties. Dr Chiragakis does not warn of fistulas.

In his evidence-in-chief, Dr Chiragakis was asked about the pamphlet issued by The Royal Australian College of Obstetricians and Gynaecologists entitled "Hysterectomy An Important Decision". This pamphlet was tendered and the witness stated that it was in use at the time the plaintiff's operation took place. It does not contain any warnings about the possibility of a fistula occurring in the bladder as a result of a hysterectomy. He said that the pamphlet was produced post Rogers v Whitaker. The pamphlet is upgraded every two years, and the most recent one contains a warning of potential damage to the bladder, however it does not warn specifically of fistulas. The doctor was asked about giving a warning about fistulas:

That is a different - that is a special warning, is it not?---Yes. This has been discussed at great length in the college in regards to how much information can possibly be put in and to be absorbed by anybody. So there is a limit to how much can be contained.

So, is it your practice to warn patients of the risk of a fistula?---No, not at all.

In cross-examination the witness was asked about the possible complications he warned his patients of, prior to abdominal hysterectomy:

And do you warn patients that this is a possible complication of a simple hysterectomy?---No.

You don't?---No.

As at this day you - - -?---As at this day I describe bladder an ureteric injuries but I don't go into the details of that.

You warn them that there may be some damage to the bladder?---Yes.

Or to a ureter?---Ureter.

Or to the bowel?---Yes.

AIDS?---No, I don't actually, interestingly enough, I don't.

Right. How long has it been your practice to warn patients that there may be some bladder damage?---In excess of 10 years, 12 years, certainly in the eighties.

Right. And did that come out of any personal experience of yours?---No, it's just a common thing, it wasn't because of Rogers v Whittaker or any other factor.

Right. So, if we went back 15 years would you be warning hysterectomy candidates that there may be some bladder damage?---Going back to - not at that, wouldn't be 15 years ago, I would say in the mid to late 80s when people were beginning to be a little more aware about complications and so on.

And have you continued to give people that warning?---Yes, as well as a pamphlet.

Right. The pamphlet of course that was in use at the time didn't have that - - -?---It didn't but it was more to stimulate thinking and so on there to - - -

That pamphlet of course wasn't provided for the guidance of doctors, was it, it was provided for the patients?---I think it was for both.

Though Rogers v Whittaker establishes that it is not medical standards or practices that determine whether a warning should be given (followed by the Federal Court in Anna Koziol v Louise Anasson, unreported, 18 August 1997), the evidence of medical experts is a useful guide.

The defendant sought to distinguish Rogers v Whittaker on the facts, namely the medical condition (sympathetic ophthalmia) that developed after the operation in that case led to total blindness which was described as a devastating disability. While it certainly could not be said that the plaintiff's medical condition in the present case was trivial, in my view it could not be described as a devastating disability on a par with total blindness. Total blindness is a permanent devastating condition.

Additionally, in Rogers v Whitaker the plaintiff made clear her great a concern that the sight in her one good eye would not be damaged. Accordingly she questioned the doctor in relation to the very kind of damage that did eventuate. It is not surprising then that the High Court held that the risk was material because clearly the plaintiff was likely to attach significance to it. This could not be said to be the case in relation to this plaintiff.

The Full Court of the Supreme Court of Western Australia provide a helpful analysis of some of the principles in Rogers v Whitaker. In particular they identified the factors to be taken into account when determining the significance a patient is likely to attach to the possible consequences of medical treatment. Ipp J observed -

"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 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 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." (Dr Richard Teik Huat Tai v Susan Kay Saxon Supreme Court of Western Australia, unreported, 8 February 1996).

The evidence is that the magnitude of the risk of a fistula occurring was minimal. In his report of 26 June 1997 Dr Cheragakis fixed it at between 0.1% and 0.01%.

Clearly the plaintiff was not facing a life-threatening condition, the only available treatment being a hysterectomy. Indeed, there were at least three other possibilities, none of which was appealling to the plaintiff purely for lifestyle reasons. Other than the condition that gave rise to this claim, there was no evidence that the plaintiff was in a poor physical or mental state.

In final submissions, the defendant referred to the dicta of Samuels JA in Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 at 581 where his honour said that it is a matter for the court whether the plaintiff's evidence, that she would not have undergone the surgery had the appropriate warning been given, is to be believed. Meagher JA agreed with this in his concurring judgment as did Kirby P in his dissenting judgment.

"It is of course, true that a patient's evidence about what he or she would have done if told of certain risks may be coloured by the fact that the risks did in fact eventuate; but it is open to a court to disbelieve evidence found to be tainted by hindsight ... Obviously, in endeavouring to ascertain what the plaintiff's response would have been to adequate information had it been conveyed at the appropriate time, a court will be greatly assisted by evidence of the plaintiff's temperament, the course of any prior treatment for the same or a like condition, the nature of the relationship between patient and doctor including pre-eminently, so far as it can be established, the degree of trust reposed in the doctor by the patient. The extent to which the procedure was elective or imposed by circumstantial exigency and the nature and the degree of the risk involved will all be matters of considerable importance ..."

Kirby P said the following at p 560:

"It is true that answering that question involves an exercise of retrospective reasoning. The patient cannot, when the mishap leading to damage and litgation has occurred, determine the answer authoritatively by the response in court to the question of what he or she would have done had only full and proper advice been given. However honest the patient may try to be, self interest and the knowledge of misfortunes that have followed the teatment will necessarily colour the patient's response to that question. Nonetheless, the answer will remain an important ingredient in the decision by the fact finding tribunal as to what it thinks the patient, subjectively and at the time before the operation, would have done if properly and fully advised."

The defendant submits that the plaintiff's evidence that she would not have had a hysterectomy if she had been given the relevant warning should not be accepted because it is tainted by hindsight, is coloured and unreliable. I think there is force in the submission that the plaintiff, with the benefit of hindsight, has attached substantial significance to the consequential fistula that she would not have attached pre-operatively. The evidence given by the plaintiff was that she did not favour any of the other possible treatments and she was bothered enough by the increased heaviness and length of her periods to consult the defendant about it. In my view, this factor coupled with the evidence of the defendant and Dr Chiragakis that the risk of a fistula was remote, leads to the conclusion that the risk was not material at the time of provision of the advice to the plaintiff by the defendant. I am not satisfied that the plaintiff would not have undergone the surgery had she known of this particular risk of bladder damage, even if told the risk was remote. There is no evidence to the contrary other than that of the plaintiff, but as Samuels JA said, it is open to a court to disbelieve evidence that is tainted by hindsight.

In weighing up the evidence, I have balanced this part of the plaintiff's evidence against her evidence that she did not wish to endure taking medication daily for the rest of her menstrual life. Additionally, she had some experience in gynaecological procedures when she previously elected to undergo a tubal ligation in order to avoid having to take the contraceptive pill for this period. The increased heaviness and length of her periods were concern enough for her to approach her general practitioner in the first place. In my view, these preferences point tothe plaintiff excluding the other treatment alternatives because they would not have been conducive to the type of lifestyle she was seeking.

The other possible complications that the defendant warned of were statistically more likely than the complication that arose. The defendant acknowledges that the low statistical likelihood of a fistula developing is not the sole determinant of whether the risk is material; however, he submits that it becomes relevant when considered along with other factors such as the seriousness of the consequence of developing a fistula. The defendant argues that the consequences of a fistula developing were relatively minor and that a fistula will, and indeed has, been resolved with treatment. In my view, the risk of a fistula occurring was not a significant risk and I do not consider it to have been necessary for the defendant to have disclosed the possible risk to the plaintiff the better to enable her to make an informed decision as to whether or not to undergo the surgery.

The defendant argues that even though the plaintiff submitted a list of questions to him, none of those questions went to the possible medical complications which might flow from the hysterectomy. Rather, the questions pertain to the actual operation itself and the plaintiff had already decided to have the operation by the time she formulated the questions. She did not discuss the answers with the defendant. This tends to illustrate that there was no indication that the plaintiff would be likely to attach significance to the risk of a fistula developing, nor that the defendant was or should have been reasonably aware that she would.

I find that the risk of a fistula forming was not in all the circumstances a material risk of which the defendant should have warned the plaintiff.

For those reasons I dismiss the plaintiff's claim, enter judgment for the defendant and order that the plaintiff pay the defendant's costs.