Fisher v Adie & anor [1998] ACTSC 112 (16 October 1998)

Last Updated: 13 October 1999

Fisher v Adie & anor [1998] SCACT 112 (16 October 1998)

CATCHWORDS

DAMAGES - Assessment - Personal injury - Medical negligence - Piece of drainage tube left in the plaintiff's body following a surgical procedure - Constant severe pain until tubing located 11 years later - Moderate to severe depressive episode - No issue of principle.

No. SC 635 of 1994

Coram: Master T Connolly

Supreme Court of the ACT

Date: 16 October 1998

IN THE SUPREME COURT OF THE )

) No. SC 635 of 1994

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: KELLY LESLEY FISHER

Plaintiff

AND: ROSS ADIE

First Defendant

AND: MAROONDAH HOSPITAL

Second Defendant

ORDER

Judge Making Order: Master T Connolly

Where Made: Canberra

Date of Order: 16 October 1998

THE COURT ORDERS THAT:

1. Judgment be entered for the plaintiff against both defendants in the sum of $184,128.56.

2. The defendants pay the plaintiff's costs.

1. This is a claim for damages for personal injuries arising from the negligent conduct of the defendants in the course of medical treatment received by the plaintiff in November 1982. The plaintiff was then aged 14, and was admitted to the second defendant's hospital in Melbourne under the care of the first defendant for an operation for her appendicitis on 19 November 1982. Her appendix was removed, and a drain was inserted by the first defendant into the plaintiffs peritoneal cavity. Some days later the first defendant instructed the second defendant to shorten the drainage tube, which had been secured by a safety pin outside her body. This shortening was performed, and on or around 23 November 1982 the tube was found to be missing. The plaintiff was reassured that it could not have gone inside her body, and discharged from hospital.

2. The plaintiff says that from early 1983 she began to experience severe abdominal pains on a regular basis. These particularly came to be associated with her periods, which had been pain free before the operation. She claims that this pain became regular and quite debilitating, and that over some 11 years she has lived with ongoing debilitating pain, and a variety of doctors have been unable to do anything to assist her. On 15 February 1994 the plaintiff presented to the emergency department of Woden Valley Hospital in severe pelvic pain. Fortunately for her Dr Grahame Bates, an obstetrician and gynaecologist, was called in and consulted about her problem, and he suggested that a laproscopy be performed. He reported that when he performed this procedure on 16 February 1994

"...she was found to have a 4 inch curved corrugated plastic drain lying around the caecum...With some difficulty the 4 inch corrugated drain was removed with bronchoscopy forceps through the lower incision."

3. There is no question that this piece of corrugated plastic drainage piping, some 100 millimetres long and 12 millimetres tall and perhaps 2 millimetres thick which was tendered as Exhibit A, was the drainage tube which had been inserted at the surgical procedure in 1982. Liability was admitted by the defendants, and it was conceded by their counsel that this was indeed a clear cut case of medical negligence. The matter proceeded before me on the basis of an assessment of damages only.

4. The plaintiff's claim for damages was on the basis of her years of constant and unexplained debilitating pain. All traces of this physical condition ceased after Dr Bates identified and removed the foreign object from the plaintiff's abdomen. She has, however, had a psychological sequelae to the successful resolution of her physical pain, experiencing a period of exhilaration when the drain was removed and the pain ceased, but later going through a period of depressive illness. She has a supportive partner, and has now found regular and fulfilling employment. She makes a claim as well for economic loss, based on the impact her constant and debilitating pain had both on her academic progress through high school, and on her ability to hold down a job. The plaintiff has had many jobs since leaving school, and it is her evidence that although she would perform well, and often secure promotion, her need to take time off, particularly during her periods when the pain was extreme, meant that her performance was considered unsatisfactory, and that, as her pain could not be explained, she was seen by employers, and even by her father, as having what she described as a "phantom illness." She says her absences meant she lost her employers' respect, and she tended to move jobs.

5. The plaintiff says that over the years she was unable to obtain any relief from the medical profession for her complaints of pain, until Dr Bates detected and removed the drainage tube. There are records of her being investigated for irritable bowel syndrome in 1987, which I am satisfied was in fact a sequelae of the presence of the tube.

6. The principles to be applied in determining compensation in personal injuries cases have recently been summarised by McHugh J in Nominal Defendant v Gardikiotis (1996) 1 CLR 49 where his Honour said (at 54):

"When a defendant has negligently injured a plaintiff, the common law requires the defendant to pay a money sum to the plaintiff to compensate that person for any damage that is causally connected to the defendant's negligence and that ought to have been reasonably foreseen by the defendant when the negligence occurred. The sum of money to be paid to the plaintiff is that sum which will put the plaintiff, so far as is possible, `in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation'."

7. I am satisfied that the plaintiff suffered ongoing and often debilitating pain for the period from early 1983 until the drainage tube was removed. I note that Dr Grainger Smith, a psychiatrist who examined the plaintiff for the defendant in August 1998, has referred to this as a chronic pain disorder. In any event, she is to be taken to have endured ongoing pain as a consequence of the defendant's negligence. This has had a marked impact on her educational and occupational opportunities, as she said that she had difficulty in keeping up at school due to frequent absences due to pain. The plaintiff, and her mother and father, confirm that she had been a good student prior to the operation. After she left school, she had an interrupted career, again due to frequent absences due to her pain.

8. I accept also that the condition had a marked effect on her social and recreational opportunities. Counsel for the plaintiff argued that the condition in effect deprived the plaintiff of the opportunity of a normal youth and early adulthood, and there is much in this submission. The plaintiff had been very keen on horses, but found that riding produced abdominal pain, and had to give up this activity. She was limited in all of her normal activities by her pain, and this must sound in general damages.

9. The plaintiff has had a full recovery from her physical pain, and Dr Bates has expressed the view that there has been no impact on her ability to bear a child in the future. Although the physical consequences of the defendant's negligence may be taken to have ended when the plaintiff recovered from the removal procedure, there have been psychological consequences. The plaintiff says that after a period of euphoria on being pain free after the removal, she became depressed. This condition was first diagnosed by a general practitioner in Sydney in September 1995, but I am satisfied from the evidence of the plaintiff, and her family and her partner Mr Harley, that this had developed from mid 1994. Dr Tym, a consultant psychiatrist, reported for the plaintiff in November 1995 that on examination in October 1995 she was suffering from a moderate (to severe) depressive episode, which he dated from June 1994 and which he said was steadily worsening in severity. I note that Dr Grainger Smith for the defendant does not dispute that the plaintiff did suffer a depressive illness of moderate severity after the tube was removed.

10. The plaintiff was having difficulties with the antidepressive medication that had been prescribed (Prozac) and she stopped medication in January 1996. In a report of October 1998 Dr Tym reported that the plaintiff gave a history of her symptoms of depression continuing after she ceased medication, but slowly resolving, with resolution by April 1997. He concluded that there was no evidence of any diagnosable psychiatric illness at the time of his review. Dr Grainger Smith reached the same conclusion in her examination of August 1998.

11. The plaintiff gave evidence that in April 1997 she started a satisfying job with a small electronics firm in Melbourne, where she has assumed more responsibility over time and now looks after the financial side of the business. She has held this job continuously, with only the odd day off for a cold or flu, and expects to continue there indefinitely, with the prospect of further pay and responsibility as the business grows. Her partner, who has been supportive over many years despite some great difficulties and periods of break down in the relationship, particularly when she was experiencing her depressive illness, is due to return to Australia this year from an overseas posting, and they are planning to marry. The plaintiff hopes to return to study on a part time basis and qualify to undertake tertiary study towards a qualification in social work. She also hopes to be able to buy a horse, and get back to her old hobby of riding, which she and her partner enjoy.

12. Dr Grainger Smith expressed the view that the plaintiff's prognosis was excellent. Dr Tym was more guarded, reporting that she remains at risk of a recurrence of a depressive illness at some stage in the future. I accept that this remains a risk, but I note that the plaintiff is adopting a positive view of the future, and that all symptoms have now resolved.

13. Taking all of this into account, I assess general damages in the sum of $85,000, of which I would attribute $75,000 to past loss, generating interest of $21,600. I make this attribution because plaintiff has now on all of the medical evidence made a full recovery, and the only ongoing issue is the real risk of recurrence of a depressive illness, which is disputed by one psychiatrist, and said to exist by another. This amounts to a total award for general damages in the sum of $106,600.

14. Out of pocket expenses were agreed in the sum of $4,528.56. There was also a claim for travel expenses in relation to medical appointments which was claimed as a general sum of $1,000. I am satisfied on all of the evidence that an award for travel costs is appropriate, and this sum, while not precisely quantified, seems within the range of an appropriate discretionary sum, and I award a total sum of $5,528.56 for past out of pocket expenses.

15. Counsel for the plaintiff argued that a buffer for future out of pocket expenses should be made to take into account the real risk of the need for future psychiatric treatment, but he acknowledged that such a buffer should be relatively modest. I award the sum of $2,000 for future out of pocket expenses.

16. The plaintiff makes a claim for economic loss for the past and the future. While the loss for the past was particularised with a degree of precision as a claim for $57,229, this was, as was conceded by counsel for the plaintiff, in reality a buffer type claim. The particularised figure represented the plaintiff's best estimate of the difference between her actual income over the years and a notional income of $20,000. The defendant agreed that a buffer for past economic loss was the appropriate approach, but cautioned that the plaintiff had, on her own evidence, been able to regularly obtain employment. The defendant called Ms Bender, who manages a Canberra personnel placement company that had been involved in placing the plaintiff in clerical positions from early 1992 until March 1994. She said that she had never received any adverse reports about the plaintiff, and that her placement with the Department of Defence had been repeatedly extended. She acknowledged, however, that she did not directly supervise the plaintiff at the workplace.

17. The plaintiff says that she always tried her best at work placements, but that over time her absences became a problem, and as a consequence she would lose a sense of esteem by being seen to take to much time off, and so she would leave for another position. I accept this evidence, and also her evidence that her pains and consequent absences date from her mid high school years, meant that her studies and future career were affected by the defendant's negligence. Taking all of this into account, it seems to me that a discretionary buffer of $50,000, inclusive of interest, is appropriate in relation to economic loss for the past.

18. The plaintiff particularised a claim for future economic loss on the basis that but for the negligence of the defendant she would be earning $100 more per week, and accordingly a claim for that amount over the rest of her working life was made. Her counsel acknowledged that this was not supported on the evidence, and that future economic loss should be dealt with as a buffer claim, and it seems to me on all of the evidence that this is the only way to deal with this aspect of the claim. Counsel for the defendant argued that, as the medical evidence presented a picture of a full recovery, there should be at most a modest buffer for future loss on the basis of the possibility of a relapse of the plaintiff's depressive illness.

19. Counsel for the plaintiff argued that the buffer for the future should reflect both the risk of future depressive illness, and the fact that the plaintiff has been in effect delayed by over a decade in the development of her career, and it is only now that all of the sequelae of the defendant's negligence have settled that she can again look at part time study and the obtaining of qualifications for social work. I accept that this is relevant to her claim, and award the sum of $20,000 by way of a buffer for future economic loss.

20. This amounts to a total award of $184,128.56 which I consider to be appropriate in all of the circumstances, and award, with costs. I note that although it was common ground that this was an obvious case of negligence, and allowing a drainage tube to be lost into the body of a patient during convalescence from surgery, and then failing to realise what had happened must clearly be an obvious case of negligence, liability was only admitted in August 1998. It is most unfortunate that an earlier resolution of this issue was not achieved in the circumstances of this case, and I need say no more about this aspect of the matter.

I certify that this and the seven (7) preceding pages are a true copy of the Reasons for Judgment herein of the Master, Mr T Connolly.

Associate:

Date: 16 October 1998

Counsel for the Plaintiff: Mr R Crowe

Instructing Solicitors: Maliganis Edwards Johnson

Counsel for the Defendants: Mr S Pilkinton

Instructing Solicitors: Phillips Fox

Dates of hearing: 6 October 1998

Date of judgment: 16 October 1998