Haylock v Morris and Anor [2006] ACTSC 86 (7 September 2006)

Last Updated: 13 February 2007

ROGER JAMES HAYLOCK v PETER H MORRIS and HUGH M LAWRENCE [2006] ACTSC 86 (7 September 2006)

NEGLIGENCE - claim for medical negligence - whether failure to warn of risks associated with epidural anaesthesia - whether blood pressure levels permitted to drop below safe level - whether post operative care adequate - relevant principles - knowledge and standards at time of operation - whether any breach of duty - issues of causation.

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

Bolam v Friern Hospital Management Committee (1957) 1 WLR 582

Sidaway v Governors of Bethlem Royal Hospital [1985] UKHL 1; (1985) AC 871

F v R (1983) 33 SASR

Chappel v Hart [1998] HCA 55; (1998) 195 CLR 232

Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434

Zaltron v Raptus (2001) SASC 209

Elbourne v Gibbs [2006] NSWCA 127

Chester v Asfhar [2004] UKHL 41

Huen v Hyland [2004] ACTCA 5

Malec v J C Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638

Naxakis v Western General Hospital [1995] HCA 22

No SC 616 of 2001

Judge: Crispin J

Supreme Court of the ACT

Date: 7 September 2006

IN THE SUPREME COURT OF THE )

) No SC 616 of 2001

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: ROGER JAMES HAYLOCK

Plaintiff

AND: PETER H MORRIS

First Defendant

AND: HUGH M LAWRENCE

Second defendant

ORDER

Judge: Crispin J

Date: 7 September 2006

Place: Canberra

THE COURT ORDERS THAT:

1. there be judgment for the second defendant against the plaintiff.

1. This is a claim for damages for injuries allegedly sustained by the plaintiff as a result of negligence in the provision of medical services relating to a hip replacement operation on 7 May 1999.

2. Sadly, whilst the surgical component of the operation was apparently successful, the plaintiff developed anterior spinal artery syndrome (`ASAS') and consequently, paraplegia.

3. Dr Morris, the surgeon who performed the operation, was the first defendant to the proceedings but I have been informed that the action against him has since been resolved. The remaining action is against Dr Lawrence, the anaesthetist who conducted an epidural procedure during the operation. It is alleged that the ASAS suffered by the plaintiff was in some way attributable to the epidural procedure and/or the post-operative care of the plaintiff, though it is common ground that the precise aetiology of the plaintiff's injury could not be determined. It is also common ground that ASAS is an extremely rare condition with an incidence no greater than about 1 in 500,000 cases.

4. It has been agreed that if the plaintiff were to succeed in establishing that Dr Lawrence had breached the duty of care he owed to the plaintiff then damages should be awarded in the sum of $1,375,000. However, liability is in issue.

5. The case against Dr Lawrence is essentially based upon allegations of negligence in failing to provide adequate warning of the risks of epidural anaesthesia, failing to provide adequate care during the course of the operation, and failing to provide adequate post-operative care. I will deal with these allegations sequentially.

The alleged failure to provide adequate warning

6. The plaintiff first consulted his general practitioner, Dr Caroll, about soreness in his hip in December 1996. He was referred to a surgeon, Dr Pinczewski, who saw him in January 1997. Dr Pinczewski apparently advised him not to have surgery at that stage but said that he would probably need a hip replacement by the time he was 65 years old. The symptoms became increasingly worse and, after reviewing his condition in the light of successive x-rays, Dr Caroll referred him to Dr Morris in or about December 1998. The plaintiff gave evidence that, during at least one consultation, Dr Carroll had told him that the operation could "probably maybe" be done with an epidural anaesthetic and that a lot of such operations were then being done with that form of anaesthesia.

7. Dr Morris subsequently advised the plaintiff to have a left hip replacement. He told him that it was a relatively simple operation that could be carried out within 35 to 45 minutes if all went well. He said that the operation would probably be done with epidural anaesthesia and, in response to a question from the plaintiff about the choice of anaesthesia, advised him that "an epidural was probably the way to go".

8. Arrangements were made for the operation to be performed in the John James Memorial Hospital and Dr Lawrence was engaged to assist in that operation.

9. The plaintiff was duly admitted to the hospital at about 3.00 pm on 6 May 1999 in the expectation that the operation would be performed on the following day. After booking in at the front desk the plaintiff went to see the person designated as his physiotherapist who incidentally proved to be a sister-in-law of Dr Morris. She also suggested that an epidural anaesthetic would probably be in his best interests.

10. He was shown to his room and informed that Dr Lawrence would come to see him. Dr Lawrence was apparently running late and, after waiting for him for some time, the plaintiff asked a nurse if he could get some coffee and when she agreed, went to the hospital canteen. He was subsequently approached by Dr Lawrence whom, he said, seemed agitated and in a hurry. He told the plaintiff that he would speak to him in his room. During the subsequent discussion Dr Lawrence read various reports and asked the plaintiff about his medical history. He subsequently ordered an x-ray and told the plaintiff that he would make a decision about the choice of an epidural or general anaesthetic after the x-ray had been taken.

11. There was some dispute about the nature and extent of subsequent conversations between the plaintiff and Dr Lawrence.

12. The plaintiff said in his evidence that Dr Lawrence came to his room again about half an hour after the x-ray had been taken and told him that it would be appropriate for him to have an epidural anaesthetic, though the x-rays had showed "a couple of dollops". He also told him that "you lose more people with general anaesthetics than you do with epidurals" but did not provide any indication of any problems that could arise from an epidural anaesthetic. The plaintiff maintained that he did not see him again before going into the operating theatre and that there had been no relevant conversation with him prior to the commencement of the operation. In cross-examination the plaintiff agreed that one of his relatives had died due to an embolism or clot following a hip replacement operation and that he had not wanted the same thing to happen to him. He initially said that he could not remember Dr Lawrence telling him that the use of an epidural anaesthetic halved the risk of an embolism but later agreed that he could recall him making a statement to that effect. He also recalled him saying that about 75 per cent of operations were done under that form of anaesthesia. He confirmed that the Dr Lawrence had warned him that there were risks of death with a general anaesthetic but denied that he had warned him of a rare risk of permanent nerve damage with an epidural procedure.

13. On the other hand, Dr Lawrence said that, after he accompanied the plaintiff to his room at the hospital that evening, he went through a number of preoperative factors with him and noted relevant matters on the hospital's anaesthetic record. He said that the plaintiff told him that he wanted to have an epidural. The plaintiff explained that he had "asked around" and that everyone he had asked had suggested that it was "a good way to go". Dr Lawrence told him that he would work through his medical history with him, check out the pros and cons and then talk to him about the choice of anaesthetic. Having looked at all of the available test results, he told him that it would be reasonable for him to have an epidural, but that he was concerned that the plaintiff had previously suffered from back trouble and that he did not know the precise nature of the condition. He said that he would need to have an x-ray taken to exclude a rare form of back condition that would have made an epidural anaesthetic inappropriate. At some point during the conversation he told the plaintiff that an epidural was a good choice because he was having a total hip replacement and "the most likely thing to take you out in such an operation are blood clots and pulmonary emboli". He explained that an epidural anaesthetic "halved that risk". He told him that there were risks associated with anaesthesia and explained that he could be allergic to something and that neither he nor the plaintiff might know about that allergy. He also told him that there were some risks specific to epidural anaesthesia and explained that he could go too far and make a hole in the dura and give him a terrible headache or cause permanent nerve damage. He said he then waited for a response from the plaintiff and, when it appeared that he did not wish to discuss this proposition further, went on to explain that there were also risks associated with general anaesthesia which could even cause death. He then proceeded to discuss post-operative care, including the possibility that the plaintiff might need a blood transfusion.

14. Dr Lawrence said that he did not think he saw the plaintiff again that evening. He thought rather that he had next seen him just before the anaesthetic was administered on the following morning. He had then reviewed the x-ray and told the plaintiff that there was nothing on it that worried him about the use of an epidural anaesthetic. The plaintiff had asked him what the x-ray revealed and he had told him that there were "a few blobs". He explained in evidence that the plaintiff had had an unusual disease called Foramans disease and had Schmorl's nodules, which are globs of gelatinous material in the vertebral body, but that these had not caused him to worry about an epidural anaesthetic. The operation then proceeded.

15. Whilst I am sure the plaintiff did the best he could to recall the terms of these conversations, I formed the impression that his memory was limited and that he was to some extent reliant upon a perhaps subconscious process of reconstruction and an assumption that if he could not remember something being said then Dr Lawrence had not mentioned it. He had plainly been concerned about the risk that he might suffer an embolism, such as that which had caused the death of a relative, and recalled Dr Lawrence warning him about the risk of death from a general anaesthetic. However, he had no comparable reason to be concerned about risks specifically associated with an epidural procedure and his general practitioner, the surgeon who was to conduct the operation, and the nominated physiotherapist had all suggested that this might be the preferable form of anaesthesia.

16. Mr Nock SC, who appeared for the plaintiff, mounted a sustained attack on Dr Lawrence's credit, suggesting, in effect, that he had subsequently sought to create an unduly favourable impression of his treatment of the plaintiff, both in an article subsequently written by him and a colleague, Dr Hong, and during the course of his evidence. I had an opportunity of observing Dr Lawrence in the witness box during the course of this searching cross-examination but formed the impression that he, like the plaintiff, was an honest witness. I also gained the impression that he had a clearer recollection of the relevant events than the plaintiff and generally preferred his evidence as to the terms of the conversations in question.

17. However, Dr Lawrence did not claim to have warned the plaintiff specifically about the risk of paraplegia. I can see no reason to assume that the plaintiff would have understood the phrase "permanent nerve damage" to extend to such a condition and Dr Lawrence did not suggest that he had expected the plaintiff to have understood that the phrase had such a connotation.

18. Nonetheless, Mr Bozic SC, who appeared for Dr Lawrence, strongly argued that his failure to specifically mention the risk of paraplegia did not constitute a breach of his duty to the plaintiff and there was considerable support for this view in the evidence of other medical specialists.

19. In her report of 22 April 2002, Dr McKay, who was called to give evidence for the plaintiff, dealt with this issue in the following passage:

Statements about the extent of warning about the adverse neurological outcomes that may rarely occur are conflicting and I am not in a position to judge these. However even in 1999 it would the practice to warn about the very rare possibility of nerve damage and the very remote risk of paraplegia. (sic)

20. In cross-examination, however, Dr McKay was shown a document headed "Westmead Hospital and Community Health Services Patients Guide to Pain Relief after Surgery" ("the Westmead guide"), said to have been in use at that hospital in relation to epidural anaesthesia in 1998, which also adverted to the risk of permanent nerve damage but did not specifically mention paraplegia. In response, Dr McKay said that she thought that would have been an acceptable warning in 1999 though it would not be acceptable now. She agreed that it had not specifically mentioned the risk of paraplegia but said that it had implied the risk of neurological damage and that paraplegia was a form of neurological damage. When asked why it would no longer be acceptable, she explained that there was now greater awareness of complications of central neuroblockade and that they were being increasingly reported.

21. Dr Collier, who was also called to give evidence for the plaintiff, unequivocally rejected the suggestion that a more specific warning should have been given. In his report of 8 July 2005 he said:

I believe that there was no requirement for Dr Lawrence to mention the risk of anterior spinal artery syndrome (ASAS) and paraplegia in 1999, when the quoted incidence was less than 1 in 500,000 cases (Scott & Hibbard, BJA 1990). Anaesthetists are generally reluctant to use the word paraplegia in discussions with patients as the word alone strikes great dread and anxiety in most individuals. Many patients will not be too concerned when warned about the possibility of dying under anaesthesia (`it won't happen to me') but most will be horrified of the possibility of being permanently paralysed and wheelchair bound post operatively. Many patients will be diverted away from the epidural, which may be the most suitable and safe anaesthetic technique for them, and back to general anaesthesia, with its many possible dangers, for fear of an extremely rare neurological complication.

However, in 2005, . . . I would feel obliged to warn surgical and orthopaedic patients of the risk of ASAS and paraplegia.

22. Dr Crawford, who was called to give evidence for Dr Lawrence, was cross-examined about the reference in the Westmead guide to permanent nerve damage and asked whether paraplegia was included in that term. He explained:

Well, the document is supposed to do that, we discussed long and hard about this document as to whether we should put paraplegia in, and the people from Westmead who produced the document said that is too strong, no one will ever have an epidural, we believe that these things are good, and the rest of the anaesthetic community felt that was the same. And so permanent nerve damage was put in as opposed to paraplegia, because it was felt that was far too strong a term to put in.

23. He later added that:

. . . it was the feeling of the anaesthetic community at the time that permanent nerve damage would be sufficient to allow someone to ask more questions, without specifically stating paraplegia.

24. The weight given to some aspects of Dr Collier's opinions could perhaps be discounted to some extent because he seemed at times to have had in mind the risk of paraplegia due to ASAS rather than the more general risk of paraplegia arising from any cause associated with an epidural anaesthetic. Nonetheless, I am satisfied that, in giving the limited warning that he did, Dr Lawrence was not only acting in accordance with the prevailing practice but in a manner generally believed by his professional peers to be in the interests of patients such as the plaintiff.

25. Members of the medical profession might understandably be concerned at any suggestion that a doctor should be held to have breached his duty of care to a patient only because he had followed a practice adopted by his professional peers for the very purpose of ensuring that patients were not diverted onto a course involving greater risks of life threatening complications. However, it is now clear that the law imposes upon medical practitioners a general duty to warn patients of material risks inherent in proposed treatments and, subject to what has been described as the `therapeutic privilege', that duty is not qualified by any proviso to the effect that relevant information may be withheld due to fears that patients aware of it might not make the best decisions for their own treatment and care.

26. In Rogers v Whittaker [1992] HCA 58; (1992) 175 CLR 479, a majority of the High Court of Australia consisting of Mason CJ, Brennan, Dawson, Toohey and McHugh JJ delivered a seminal judgment rejecting the so-called "Bolam principle" (vide Bolam v. Friern Hospital Management Committee (1957) 1 WLR 582), which had been described succinctly by Lord Scarman in Sidaway v. Governors of Bethlem Royal Hospital [1985] UKHL 1; (1985) AC 871 at 881 as the principle that a doctor is not negligent if he acts in accordance with a practice accepted at the time as proper by a responsible body of medical opinion, even though other doctors adopt a different practice. Their Honours said at [12] that in Australia it had been accepted that the standard of care to be observed by a person with some special skill or competence is that of the ordinary skilled person exercising and professing to have that special skill, and that standard is not determined solely or even primarily by reference to the practice followed or supported by a responsible body of opinion in the relevant profession or trade. They explained that "particularly in the field of non-disclosure of risk and the provision of advice and information, the courts had instead adopted the principle that, while evidence of acceptable medical practice is a useful guide for the courts, it is for the courts to adjudicate on what is the appropriate standard of care after giving weight to `the paramount consideration that a person is entitled to make his own decisions about his life' (F v. R. (1983) 33 SASR at 193)". Hence, their Honours said at [14]:

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.

27. Their Honours added that nothing was to be gained by reiterating the expressions used in American authorities, such as "the patient's right of self-determination" or even the oft-used phrase "informed consent", before stating at [17] that:

... the factors referred to in F v. R. by King C.J. (1983) 33 SASR, at pp 192-193) must all be considered by a medical practitioner in deciding whether to disclose or advise of some risk in a proposed procedure. The law should recognize 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.

28. Their Honours had earlier explained that the term, "therapeutic privilege", referred to the substantial scope given to a doctor to decide that the provision of all available information to a patient would be inconsistent with the doctor's obligation to have regard to the patient's best interests. They said at [9] that it afforded an opportunity for a doctor to prove that he or she had reasonably believed that disclosure of a risk would have proven damaging to a patient.

29. Despite the body of evidence suggesting that Dr Lawrence had acted in accordance with the practice and expectations of his peers, it was not suggested that his failure to warn the plaintiff that the risk of paraplegia could be supported on the basis of therapeutic privilege. Mr Bozic conceded, in effect, that the concept of therapeutic privilege could not be invoked to support a proposition that doctors were entitled to determine what risks should generally be revealed to patients, and accepted that it was applicable only to cases in which there was a particular danger that the provision of relevant information would harm an unusually nervous, disturbed or volatile patient. There was no evidence that the plaintiff had fallen within this description. On the contrary, I formed the impression, albeit from observations of him nearly seven years after the operation, that he was an emotionally mature and reasonable man who could well have been trusted to make a sensible decision about his own treatment.

30. Mr Bozic did submit that the risk of paraplegia due to ASAS was not a material risk because the likelihood of the plaintiff suffering from that condition was only 1:500,000 and because disclosure might have prompted him to opt for a general anaesthetic which would have been more dangerous. However, this submission was obviously predicated upon the contention that the relevant risk was that the plaintiff might suffer ASAS. I do not accept that this was the case. On the contrary, I accept Mr Nock's submission that the relevant risk was that he might suffer paraplegia. Whilst it is true that his paraplegia was in fact caused by ASAS, such a condition could also have been caused by other factors such as abscess or haematoma, which are apparently more common. The precise incidence of paraplegia due to any complications arising from epidural anaesthesia at the relevant time was not the subject of evidence but the risk was variously described by Dr McKay as "remote" and "very remote". Nonetheless, it was not suggested that it had been so low as to be dismissed as being of negligible importance to a patient in the plaintiff's position.

31. It was also submitted that no warning had been required because the plaintiff had been determined to proceed with the operation and the only alternative to an epidural anaesthetic would have been a general anaesthetic, which would have involved equal or greater risks. I accept that considerations of this kind may sometimes be decisive but in the present case I think that the plaintiff should have been advised of the competing risks and permitted to make an informed decision as to which he would accept.

32. Ultimately, however, this aspect of the plaintiff's case founders on the issue of causation. Even if a change of plan from epidural to general anaesthesia would have avoided the ASAS, and that seems to have been assumed rather than directly proven, the legal onus of proving that an appropriate warning would have caused the plaintiff to have taken a different course clearly rested upon him.

33. As Mr Nock pointed out, McHugh J said in Chappel v Hart [1998] HCA 55; (1998) 195 CLR 232 at 244 and 247 that once a plaintiff proves that the defendant breached a duty to warn of a risk and that the risk eventuated and caused harm to the plaintiff, the plaintiff has made out a prima facie case of causal connection. His Honour explained that an evidentiary onus then rests on the defendant to point to other evidence suggesting that no causal connection exists. Whilst McHugh J was in the minority in Chappel v Hart, Kirby J expressed a similar view at 273 and the principle he expressed has since been widely accepted: see, for example, Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434 per Gummow J at [88]; Zaltron v Raptus (2001) SASC 209 at [90] per Martin J (Doyle CJ and Williams J agreeing); and Elbourne v Gibbs [2006] NSWCA 127 per Basten JA (Beasley JA agreeing). See also Chester v Asfhar [2004] UKHL 41.

34. The principle must be understood in context and, as the Court of Appeal pointed out in Huen v Hyland [2004] ACTCA 5, it does not appear that either McHugh J nor Kirby J were intending to establish a novel proposition that, in all cases, breach of duty and immediately ensuing damage of themselves raise an inference that the breach of duty was causative of the damage. Furthermore, the present case differs to some extent from some others in which the principle has been applied because it is common ground that the plaintiff would, in any event, have proceeded to have had the operation and the only question was whether he would have elected to have had a general rather than an epidural form of anaesthesia. Nonetheless, for present purposes I am prepared to assume that Dr Lawrence bore an evidentiary onus of proof on this issue. Unfortunately for the plaintiff, it was in my opinion clearly discharged.

35. The only evidence concerning this issue that was elicited from the plaintiff during the course of his evidence in chief was as follows:

What would have been your reaction had Dr Lawrence said to you that there was a possibility of permanent nerve damage in your spine as far as your choice between epidural and general anaesthetic was concerned?. . . If I knew there was going to be a major problem I would have had a general anaesthetic.

36. This was wholly inadequate to prove the necessary causal connection between the failure to provide a more specific warning and the injury suffered. As previously mentioned, I accept Dr Lawrence's evidence that he did warn the plaintiff that there was a possibility of nerve damage arising from an epidural anaesthetic, though this had been inadequate to convey the risk of paraplegia and I am prepared to assume that the plaintiff had not realised that any such risk existed. The question was plainly intended to elicit an indication of what choice the plaintiff would have made if he had been informed of such a risk. Yet he was not invited to make any assumption about the incidence of such adverse outcomes or offered any means of comparing the degree of risk involved in the use of epidural anaesthesia with those associated with general anaesthesia. In any event, the answer was not directly responsive to the question and did not cast any real light on the relevant issue. Whilst I have no doubt that the plaintiff would have avoided an epidural procedure if he had known that it would cause paraplegia or some other major health problem, that is not the issue with which I am concerned. The relevant question is whether he would have been diverted from an epidural procedure if he had been accurately informed of the associated risks.

37. In cross-examination the plaintiff was asked whether, if informed that there had been a risk of less than one in five hundred thousand that he might contract ASAS and suffer paraplegia, that would have made any difference to his decision. He candidly answered "No". Mr Bozic submitted that this answer was fatal to this aspect of the plaintiff's claim. I do not accept that it was. As previously mentioned, I am satisfied that the relevant risk was not that of ASAS causing paraplegia, but the risk of paraplegia arising from any cause associated with an epidural procedure.

38. Accordingly, I have been left to deduce the manner in which the plaintiff would probably have responded to an appropriate warning by reference to other evidence in the case. It is clear from the preponderance of medical evidence that the risks of epidural anaesthesia are generally no greater and may in some respects be significantly less than those associated with general anaesthesia. As I have mentioned, the risk of paraplegia was variously described by Dr McKay as "remote" and "very remote". The plaintiff was a fifty-five year old man who had long run his own farm in partnership with his wife and been active in local politics. As mentioned earlier, I formed the impression, albeit seven years after the operation, that he was an intelligent and mature man. I could see no reason to doubt that he would have made his decision on the basis of a pragmatic assessment of the competing risks rather than by an emotional overreaction to the fear of paraplegia. In fact, as I have mentioned, he was particularly concerned about the risk of suffering an embolism or clot during the operation and the evidence revealed that such a risk is reduced by about 50 per cent when epidural anaesthesia is used. He had previously "asked around" and been given positive advice about such a procedure. He had told Dr Lawrence that he wanted an epidural procedure and, as Dr McKay conceded, there did not appear to have been any real contraindications to that course. It was not an unusual course to adopt; the evidence reveals that 75% of hip operations were conducted under that form of anaesthesia.

39. Even with the aid of an evidentiary onus suggested in Chappel v Hart, the plaintiff has, in my opinion, clearly failed to establish that any failure to warn him of the risk of paraplegia was causally related to his injury. On the contrary, I was left with the firm impression that it was unlikely that he would have been diverted from the procedure by any realistic warning of the relevant risk. Consequently, this aspect of the plaintiff's case must fail.

The allegation of negligence during the operation

40. Whilst broadly pleaded, this aspect of the plaintiff's case was based essentially upon the contention that the Dr Lawrence had acted negligently in failing to ensure that the plaintiff's blood pressure was sustained at a sufficiently high level to avoid unnecessary risk of ASAS or other medical complications.

41. The preponderance of medical evidence seems, however, to establish that he acted in accordance with the relevant medical beliefs and practices in 1999, though it has since been suggested that a different approach should be adopted.

42. Dr Lawrence explained in evidence that the intravenous line was inserted into the spine and the epidural started at about 8.15 am. The plaintiff was then wheeled into the operating theatre and placed on the table. His blood pressure was recorded automatically by the monitoring equipment and Dr Lawrence also made manual notes of it during the early part of the operation. It was generally maintained with a range of 90 and 110 mm Hg though there were two periods in which it dropped markedly, one at 8.40 am when it dropped to 70 mm Hg and one at 9.07 when it dropped to 75 mm Hg. On each occasion Dr Lawrence responded by increasing the flow of intravenous fluids. On the first occasion this led to the baseline blood pressure being rapidly restored but on the second occasion the blood pressure remained depressed for a period of some minutes.

43. When asked whether he had done anything in response to the latter fall in blood pressure, Dr Lawrence said that he had kept pumping the intravenous fluids. He explained that he was concerned about tissue perfusion to the brain and that depended upon blood pressure and peripheral resistance. Blood pressure could be measured but peripheral resistance had to be assessed by reference to other factors. Whilst the plaintiff was talking and moving it was apparent that his cerebral perfusion was adequate because function was the first thing that would be affected. Dr Lawrence said he had been happy to proceed in reliance upon increased intravenous fluids so long as the blood pressure returned to a level between 90 and 100 mm Hg. He said that he had not administered a vasopressor. He explained that vasopressors are a two edged sword in that they enabled the anaesthetist to fill in the right numbers in the chart but they caused constriction of blood and may cause a lack of circulation in inappropriate areas. There had been instances of people having trouble with their hearts when a vasopressor had been used. He did say however, that if his blood pressure had remained below 90 mm Hg he would have used a vasopressor.

44. In the article which he later co-authored with Dr Hong, Dr Lawrence said that, with the benefit of hindsight, it may be advisable to treat even mild episodes of hypotension aggressively in an effort to minimise possible contributors to ASAS.

45. In cross-examination it was suggested to him that even in 1999, the plaintiff's blood pressure should have been maintained at a higher level and, in particular, he should have responded more aggressively when it dropped markedly at 8.40 am and 9.07 am. However, despite the attacks on his credit to which I have already referred, I saw no reason to doubt the general accuracy of the account which he gave of the procedure or that he had acted in accordance with what he had believed to be the appropriate standards of care for the plaintiff.

46. It is true, of course, that the relevant test is an objective one and that a person may be found to have breached his or her duty of care to another even if the relevant acts had been carried out in the conviction that they represented the best standard of care humanly possible. However, the preponderance of expert medical evidence does not support the plaintiff's case that Dr Lawrence failed to adhere to the standards of care accepted by reputable anaesthetists at the time of the operation.

47. Indeed, Dr Wilkinson said that the graph annexed to Dr Collier's report had revealed an "unremarkable pressure tracing" of the sort he commonly saw in patients having epidural anaesthetic. He added that he had done thousands of such operations and that when patients were moved their blood pressure could drop but it usually recovered quickly. Hence, a single drop in blood pressure was not a cause for alarm unless it was sustained.

48. Dr Wilkinson also echoed Dr Lawrence's observation that it is not only the blood pressure readings that are significant. He said:

Well, in my experience, what you do when a machine is triggering or whatever, you actually use your eyes and ears. You put your finger on the pulse, you look at the patient, you look at the oxygen perfusion. There are other things that you would look at as well as the blood pressure.

49. Dr Crawford said in his report of 2 July 2003 that it was clear that Dr Lawrence had maintained the plaintiff's blood pressure within what is usually regarded as acceptable levels for this procedure under epidural anaesthesia. He said that if Dr Lawrence had been aware of the possible development of an ASAS he could have maintained the blood pressure at a significantly greater level but that there was no indication that this was required, and that the plaintiff did not seem to have had any conditions that might have predisposed him to this syndrome. He said that there was "no evidence at all" to suggest that Dr Lawrence failed to manage any degree of hypotension. The anaesthetic record was clear in demonstrating that the blood pressure was maintained within the range of 90 mm Hg to 120 mm Hg throughout most of the operative procedure and, whilst there were two recordings of significantly lower systolic blood pressure, it was difficult to know what they meant in isolation as it was not unusual for automated blood pressure devices to give a seriously low reading periodically. He noted that there were two episodes of an absence of blood pressure recordings and said that they might represent a period of hypotension or periods of interference to the blood pressure monitoring system.

50. Dr Collier expressed substantial concurrence with these views at the end of the report he had written for the plaintiff's solicitors:

IN SUMMARY, Dr Wilkinson and Dr Crawford, both express the current view of the vast majority of anaesthetists, that Mr Haylock's blood pressure readings, between 90-100 mm Hg would have been considered to be basically satisfactory and that Dr Lawrence's management was reasonable. I agree, that using current guidelines his control of blood pressure would be considered acceptable.

Unfortunately, I believe that we were all incorrect in our previous assessment, as to what is a satisfactory maintenance blood pressure for a patient undergoing surgery under epidural block, and I now consider that the blood pressure should be maintained at nearly baseline levels.

51. Earlier in the report Dr Collier had indicated that after the case was closed he would suggest to his fellow experts that a letter or paper be published in the relevant journal suggesting that the recommended figure for minimum blood pressure during procedures of this kind be re-evaluated and raised. He concluded by referring to Dr Lawrence's own paper suggesting that even minimal episodes of hypotension be treated aggressively.

52. In cross-examination Dr Collier agreed that the maintenance of blood pressure during the operation had been in accordance with the standards accepted by respectable anaesthetists as appropriate in 1999. He did say that he might perhaps quibble about the treatment of the two dips in blood pressure during the procedure. However, after being taken through a chart he had prepared of the blood pressure readings, he agreed that the readings shown in the operation would have accorded with the standards accepted by ordinary, reasonable anaesthetists exercising the ordinary degree of care and skill in 1999, including the treatment of what he had described as the two drops in blood pressure.

53. It was only Dr McKay who suggested that Dr Lawrence's management of the plaintiff's blood pressure had fallen below standards prevailing in 1999 and even her evidence on this issue was not entirely unequivocal. In cross-examination she gave the following evidence:

Now bearing in mind that the operation took place in May 1999, can I suggest to you that the maintenance of blood pressure as shown in that chart in the schedule, was in accordance with standards that were accepted as proper by reasonable anaesthetists? - In 1999 we were already issuing warnings in Victoria which may not have - because they were in our local reports, may not have reached around Australia. But there is, in the literature, suggestion that there's a limit to the safe reduction of blood pressure in patients at risk.

And just pressing on the question that I asked, would you agree that in 1999 the maintenance of blood pressure in Mr Haylock during the operation, was in accordance with the proper practice? - Well had he been receiving a general anaesthetic it would have been. We would have regarded that as being a bit too low for a long period. Now in - it has been practice to accept under regional anaesthesia and incorrectly to accept, as we now know, that it's safe to have these blood pressures but they certainly, even for that time, indicate a greater than 25% reduction in his best evidenced blood pressure and 25% was written in the literature at that time. It's even now reduced to 20%.

Would you accept that the blood pressure readings were in accordance with proper practice in 1999? - That is a difficult question. I wouldn't have accepted those blood pressure readings and many anaesthetists would have given him a drug to bring that up slightly. It was over a prolonged period and certainly the evidence is that his blood pressure was unstable. In other words, it wasn't just 100 all the way, it was all the time dropping and going up again. So I believe in this particular instance I wouldn't accept that it was the best practice.

54. Mr Bozic subsequently pursued the matter further, again asking whether she would agree that in 1999 blood pressure readings of between 90 and 100 mm Hg would have been considered by a respectable, reasonable body of anaesthetists to have been appropriate and Dr McKay agreed that a certain percentage of anaesthetists would have done so. Nonetheless, she clearly believed that it would have been preferable for the plaintiff's blood pressure to have been maintained at a generally higher level and for more aggressive action to have been taken in response to the two dips in blood pressure.

55. Dr McKay had clearly enjoyed a long and distinguished career as an anaesthetist and was, I thought, an impressive witness. Nonetheless, her perception as to the standards maintained by anaesthetists in 1999 was at odds with those of the other anaesthetists who gave evidence, all of whom were also distinguished specialists. As previously mentioned, the article subsequently written by Dr Lawrence with Dr Hong had expressly suggested that earlier accepted standards needed to be revised in the light of what had befallen the plaintiff and Dr Collier expressed the view that a further warning was still necessary because, as he candidly put it, he believed that "we were all incorrect" as to satisfactory blood pressure maintenance levels. I preferred the evidence on this issue given by Drs Wilkinson, Crawford and Collier to that given by Dr McKay.

56. An issue was also raised about the fact that the plaintiff had taken aspirin only two days prior to the operation but whilst this constituted one of the circumstances within which the operation occurred, it was not ultimately suggested that it had any causal impact upon the plaintiff's injury or disabilities.

57. Whilst it is clear from the High Court's decision in Rogers v Whittaker that the issue of whether a medical practitioner has carried out a particular form of treatment in accordance with the appropriate standard of care is ultimately a matter for the court, expert evidence as to prevailing professional standards must be taken into account and will often prove decisive. This is such a case. Whilst I have carefully considered Mr Nock's arguments on these issues I am not satisfied that any breach of the relevant standard of care has been demonstrated.

58. There is, moreover, a second reason why this aspect of the plaintiff's case must fail. It was, of course, incumbent upon the plaintiff to establish not only that Dr Lawrence had breached the duty of care that he had owed to him but also that that breach had caused the relevant injury and resultant disabilities. In my view, the evidence fails to establish the requisite causal link.

59. Dr Roche, a radiologist with a special interest in what he described as "severe events" to the spinal cord, gave evidence that from the radiological images of the plaintiff's spinal cord it appeared most likely that the cord had suffered severe ischaemia during the operation. He said that there were a number of possible causes of an interruption to the blood supply to the spinal cord. He had been asked to comment on Dr McKay's opinion that the plaintiff had suffered a level of hypotension for a long period during and after the procedure and that this, along with other factors, may have made a significant contribution to the development of spinal artery thrombosis. In response, Dr Roche said that no evidence could be deduced from magnetic resonance (MR) studies performed on 11 May 1999 that helped confirm the precise cause of the cord infarction. He explained that documented hypotension had been associated with one other case of cord ischaemia in his experience and that patient had had a lower abdominal aortic graft. The notes with which he had been supplied concerning the plaintiff did not include any reference to a strong history of arterial disease. In summary, he said that there was no direct evidence in the MR images to directly support Dr McKay's opinion but that her theory had merit. There had not been a large amount of reported confirmed cases of post procedural cord infarction to allow an estimate of the likelihood of the different possibilities, but the greater and longer the period of hypotension the more likely it is that cord ischaemia will occur. In cross-examination he agreed that, in suggesting that Dr McKay's theory had merit, he had meant that it was as likely as any of the other possible causes he had mentioned.

60. Dr Wilkinson expressed the opinion that a fat embolism was a more likely cause of the ASAS than any of the causes identified by Dr Roche. When this proposition was put to Dr Roche in cross-examination, he agreed that it was another potential cause but indicated that he was unable to determine which of the causes was most likely. This proposition was also put to Dr Collier, another anaesthetist who gave evidence on behalf of the plaintiff, and he accepted that it was a possible cause. More generally, Dr Collier agreed that, on the basis of the available evidence, one simply could not tell what had been the cause of the paraplegia. ASAS could occur spontaneously and it could occur in procedures conducted under epidural or general anaesthesia. He was unable to proffer an opinion as to which of the various causes identified by others including Dr Wilkinson and Dr Roche, was more likely.

61. Dr McKay initially expressed the opinion that prolonged moderate hypotension was the most likely cause but added that there was no good published evidence as to the critical level of reduction in blood pressure that could result in what she described as "the very rare calamity". She said that the reduction in blood pressure would have to have been associated with some arteriosclerotic condition or temporary spasm of the spinal arteries. When asked to confirm this opinion in cross examination, she said that "we can't be sure" and explained that there is no real evidence as to exactly what happens to cause such an event. She ultimately agreed that the question of causation was speculative but maintained that her hypothesis that the injury was caused by a combination of hypotension and some other event was a more plausible explanation than Dr Wilkinson's speculation that it was caused by a fat embolism.

62. Mr Nock submitted that I should prefer the evidence of Dr McKay to the other expert witnesses in the case, and, on the other hand, Mr Bozic submitted I should prefer the opinion of Dr Wilkinson. I am, however, unable to accede to either submission. Whilst I have considered all of the medical evidence and had the benefit of observing the relevant medical specialists cross-examined about their opinions, I am not persuaded that either condition has been shown to have been a substantial cause of the plaintiff's injury. Regrettably, the preponderance of evidence suggests that the cause or causes are a matter of speculation and, whilst many competing hypotheses have been advanced, there is in my opinion no adequate basis for finding that on the balance of probabilities any one of the suggested causes was substantially responsible for the injury. Hence there is no basis for finding that it was causally related to the hypotension that the plaintiff allegedly suffered during the operation.

Post-operative care

63. The allegation that Dr Lawrence breached his duty to provide post-operative care was based essentially upon contentions that he had failed to ensure that the plaintiff's blood pressure was adequately maintained in the recovery room, that he had failed to ensure that the volume of epidural solution administered post-operatively was limited to that which he had prescribed, and that he had failed to terminate the epidural infusion when the plaintiff's failure to regain full movement of his limbs suggested that there may have been damage to his spine.

The maintenance of blood pressure in the recovery room

64. It is clear that on his arrival in the recovery room the plaintiff's blood pressure was recorded as 80/43 but, whilst Dr McKay suggested that nearly two hours had elapsed before it could have been said that his blood pressure had been stable, the preponderance of medical evidence suggests that it was adequately maintained within that period.

65. Dr Collier agreed "without qualification" that the maintenance of the blood pressure in the recovery room was in accordance with the proper standards prevailing in 1999.

66. Dr Crawford noted that there was one record of blood pressure being 80/43 immediately upon arrival in the recovery room but said that all other readings had been above 90 mm Hg systolic and most had been above 100 mm Hg. He concluded that without any knowledge of the patient being at risk for minor hypotension related to an epidural, he did not see that Dr Lawrence had failed to manage the minor hypotensive episode adequately.

67. Dr Wilkinson also agreed that Dr Lawrence had not failed to adequately manage the plaintiff's blood pressure post-operatively.

The volume of epidural solution administer post-operatively

68. Dr Lawrence was also cross-examined about records indicating that a 100 mL bag of epidural solution had been replaced after a period of only about one hour and five minutes. It was suggested that, if administered at the rate of 10 mL per hour as Dr Lawrence had directed, the bag should have lasted for ten hours. Hence the early replacement indicated that the plaintiff may have received almost ten times the recommended dosage. There was, however, no evidence to explain why the bag was replaced and, as other medical experts in the case pointed out, it may well have been replaced because it was defective.

69. A second bag was replaced after about six hours and twenty-five minutes though again, there was no evidence as to why this occurred.

70. In any event, the plaintiff was substantially in the care of nurses in the recovery room and there was no evidence to suggest that the replacement of the bag was drawn to Dr Lawrence's attention or that anaesthetists normally regarded it as part of their duties to check the records relating to the issue of such bags. Nor was there any evidence to suggest that an overdose of the epidural solution had actually been administered or that, if it was, it caused or contributed to the plaintiff's condition.

71. In my view, if there had been any conceivable claim arising out of these records, it would have lain against the hospital rather than against Dr Lawrence.

The maintenance of the epidural infusion

72. Dr Collier did express the opinion that Dr Lawrence could be criticised for continuing the epidural infusion on the evening after surgery for a further twenty-three hours despite the plaintiff's inability to move his legs. Dr Collier expressed the opinion that it would have been prudent to have discontinued the infusion at about 7.15 pm to see if movement returned. He volunteered the statement that it was not known if pressure exerted in the epidural space by the continued infusion could have exacerbated damage to the spinal chord and, in cross-examination, conceded that it was most likely that the damage occurred during the operation. Nonetheless, he maintained the infusion could have exacerbated the damage. When it was put to him that there was nothing in the literature that would support that theory he agreed that there was "just vague mentioning". He said that there was one text book reference to excess fluids in the epidural space as a cause of spinal damage and that it had been mentioned by other experts "but it is my theory, it's new - I've got unique experience in examining the epidural space". He went on to explain that he had published a book on x-rays and injections into the epidural space and knew more about it than probably anyone else. He readily agreed, however, that no one could have anticipated his theory in 1999.

73. Mr Nock submitted that the plaintiff was at least entitled to damages for loss of the chance that an earlier cessation of the epidural infusion following the operation may have prevented or ameliorated the damage caused to his spine. There are, however, two obvious answers to that submission.

74. First, whilst Dr Collier would not agree that it had not been inappropriate for Dr Lawrence to have kept the epidural going, he supported that opinion only by reference to the obvious fact that there were clearly grounds to be worried about the plaintiff's condition and that there had been no reason to maintain the infusion other than pain suppression. He did not suggest that Dr Lawrence could have anticipated his theory that the continued infusion could have caused or exacerbated damage to the plaintiff's spinal chord or explain what other factor should have led a properly concerned and prudent anaesthetist to conclude that the risk of paralysis might have been ameliorated by terminating the infusion or, for that matter, that there may have been some other potential benefit sufficient to justify withholding pain relief. I am not satisfied that any breach of duty has been established.

75. Secondly, whilst it is well settled that a plaintiff may recover damages for loss of a chance (see, for example, Malec v J C Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638; Naxakis v Western General Hospital [1995] HCA 22), this principle could only have been invoked had the plaintiff been able to establish that there would have been a real chance of his injury being avoided or ameliorated had the infusion been terminated earlier. There is a crucial distinction between cases in which it can be proved on the balance of probabilities that such a chance has been lost and cases in which the evidence does not permit any finding as to what might have occurred. It must be an actual chance that has been lost; a mere inability to prove the absence of a relevant possibility will not suffice. In the present case the evidence simply does not reveal whether or not turning off the infusion would have made any difference. Hence, I have been obliged to conclude that the existence of a chance has not been established.

76. I should perhaps mention that it was suggested in opening that Dr Lawrence may have been under stress due to injuries earlier sustained to his wife and hence distracted in the performance of his duties. However, this suggestion was not pursued.

77. The plaintiff is entitled to every sympathy for what he has suffered and for the disabilities he continues to endure. However, it was incumbent upon him to prove that his injury was attributable to some breach of the duty of care that he had been owed by Dr Lawrence and, in my opinion, he has clearly been unable to do so.

78. There will be judgment in Dr Lawrence's favour.

I certify that the preceding seventy-eight (78) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Crispin.

Associate:

Date: 7 September 2006

Counsel for the plaintiff: Mr D Nock SC

Solicitor for the plaintiff: Ken Cush and Associates

Counsel for the second defendant: Mr M Bozic SC

Solicitor for the second defendant: Sparke Helmore

Dates of hearing: 18, 19, 20, 26, 27, 28 April 2006

10, 11 July 2006

Date of judgment: 7 September 2006