Brus v Australian Capital Territory & Anor [2007] ACTSC 83 (12 October 2007)

LORRAINE BRUS v AUSTRALIAN CAPITAL TERRITORY & ANOR [2007] ACTSC 83 (12 October 2007)

NEGLIGENCE – claim for medical negligence – plaintiff alleging prolapse of fallopian tube resulted from negligence during vaginal hysterectomy – post operative complications – whether surgeon in chief properly qualified – supervision of trainee surgeon – whether duty to provide public patient with choice of surgeon – issues of causation.
DAMAGES – pain and suffering – ongoing treatment – out of pocket expenses – economic loss.

Bonney’s Gynaecological Surgery (2004) Blackwell Publishing International, Monaghan, Naik and Lopes

IN THE SUPREME COURT OF THE )
) No. SC 517 of 2003
AUSTRALIAN CAPITAL TERRITORY )

1. This is a claim for damages for personal injuries said to arise from the negligent provision of medical services. The plaintiff was admitted to the Canberra Hospital on 23 September 1998 for the purposes of surgical treatment for a vaginal hysterectomy. She was admitted as a public patient, and had been put down for elective surgery by her treating specialist, Dr Heaton. She had been a long-term patient of Dr Heaton, who had delivered her children. For the deliveries she had held private health insurance cover, and had received treatment by Dr Heaton as a private patient. She did not hold private health insurance in 1998.
2. The procedure was performed. There were post-operative complications resulting from the plaintiff extubating herself whilst recovering from the anaesthetic which delayed her stay in hospital, but she was discharged with an apparently successful procedure. Unfortunately, she continued to complain of pain and discomfort, and had to return to various specialists for further investigation. It subsequently emerged that her right fallopian tube had prolapsed into her vagina, and it is the plaintiff’s case that this occurred due to the incorporation of part of the fallopian tube during the suturing to close the vaginal vault at the conclusion of the operation. There were a number of invasive and painful procedures that the plaintiff had to undergo before this was diagnosed and eventually surgically corrected in October 2000. She still continued to suffer pain, and a further procedure was performed in February 2001 which resulted in the removal of a tubo-ovarian mass.
3. The plaintiff claims that all of these complications are attributable to the negligence of the defendants. The defendants argue that, even if primary negligence be established in respect of the original surgery, the immediate complications due to extubation were not causally related to any negligence in the surgery, and the February 2001 procedure was also not causally related to any negligence in incorporating the fallopian tube in the suture line.
4. The plaintiff originally brought her action against the Australian Capital Territory as the operator of the hospital, and Dr Heaton as the surgeon. However, the surgical records suggest that the procedure was in fact performed by a Registrar, Dr Cree, with Dr Heaton assisting. A registrar is a trainee surgeon - in this case a qualified medical practitioner who had undergone his/her basic medical training and performed some hospital work before being accepted by the Royal Australasian College of Obstetricians and Gynaecologists (the College) for its training program. A registrar, by definition, is less experienced than a qualified surgeon who is a Fellow of the College.
5. This factual issue proved difficult of resolution, as the plaintiff, obviously, was under anaesthetic for the procedure, and both Dr Cree and Dr Heaton swore that they had no independent recollection of the procedure. Although this remains the case, Ms Burke, counsel for the defendants conceded that, from the records, it was most likely the case, and I would be entitled to so find that the procedure was carried out by the registrar under Dr Heaton’s supervision. This is consistent both with the hospital records which show Dr Cree as the surgeon and Dr Heaton as the assistant, and the fact that the procedure took over an hour. Dr Heaton and other experts said this would be consistent with this procedure being performed by a registrar under close supervision, rather than being performed by a very experienced consultant obstetrician and gynaecologist, who would be expected to perform a routine vaginal hysterectomy in less than 40 minutes.
6. The plaintiff does not allege that there was any negligence in the substantive procedure. It is common ground that the vaginal hysterectomy was successfully completed, and there have been no complications from the procedure itself. It is common ground that due to a long history of health issues, a hysterectomy was properly indicated for the plaintiff. The experts agreed that, where this is the case, the preferable course is to remove the uterus through an incision in the vagina (a vaginal hysterectomy). If this is not clinically indicated, the alternative, but more radical form of surgery, is to remove the uterus through an incision in the abdomen (an abdominal hysterectomy). What is alleged is that, after the substantial completion of the procedure, that is to say the removal of the uterus through the incision in the vagina, the fallopian tube became entangled in the suturing (stitching) of the incision in the vagina. This would have occurred on the internal wall of the vagina, that is to say, the side that was not visible to the surgeon as the incision was closed and sutured.
7. Because the sutures dissolve over time, it was not possible for any observation to be made as to whether the tube had in fact been entrapped in the suture line, although it is the case that that is the point at which the tube prolapsed through the vaginal wall. The experts were agreed that it was possible for a tube to work its way through a healing wound, although the plaintiff’s experts said that this was a most unlikely event, and that a poor surgical technique was the more likely explanation.
8. There was some evidence that, because the point at which the tube would have become entrapped in the suture line (if this was what occurred) was not visible to the surgeon, it was possible that even a very experienced and careful surgeon could, with no negligence, suffer this complication. However, as poor technique was a recognised factor, it follows that it would be more likely that an inexperienced surgeon, or a surgeon with poor technique, would produce this result as a consequence of negligence.
9. When it became apparent that the defendants would concede that the procedure had been performed by Dr Cree, the plaintiff amended the pleadings to allege negligence, in permitting Dr Cree to perform the procedure, failing to inform the plaintiff that the operation was to be performed by Dr Cree, and failing to inform the plaintiff of Dr Cree’s qualifications and experience.
10. There was no dispute that the point at which the fallopian tube had prolapsed into the vagina was the point at which the vault had been sutured following the 1998 surgery. The plaintiff’s case was that, on the medical evidence, I should infer that the reason it prolapsed at this point was that it had been caught up in the suturing process. All the expert obstetricians who gave evidence in this case, or whose reports were tendered, said that this was a very rare complication indeed. There is a report from Dr Chiragakis, a very experienced Canberra surgeon, who said that he had never seen such a condition in 35 years of practice. Other experts were agreed that the condition was very rare, and Dr Michael in his report, noted that, while this had been listed in a leading textbook on obstetric surgery (Bonney’s Gynaecological Surgery (2004) Blackwell Publishing International, Monaghan, Naik and Lopes) for many years as a potential complication, reference to the inadvertent catching of a fallopian tube in a suture line had been deleted from successive editions of the book from 1986. This case was not pleaded as a Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434 action of failure to warn a patient of a foreseeable complication. All the experts were agreed that this was not a complication about which a patient should be warned.
11. There was contemporary medical literature concerning this condition which stated that a potential cause of prolapsed fallopian tubes following vaginal surgery could be poor surgical technique. The experts were agreed that a careful and experienced surgeon should not allow this to happen.
12. The plaintiff gave evidence that Dr Heaton had told her that he, Dr Heaton, would personally perform the surgery. Her evidence was that, had she known that the surgery would be performed by a registrar, she would have declined the procedure. I accept that she provided truthful evidence of her recollection, but her recollection cannot fail to have been influenced by the extremely distressing years that she has endured following the procedure. Dr Heaton gave evidence that he always told his public patients that they would be admitted as his patients and that the surgery would be performed under his list, but that he may be assisted by, or would himself assist, a registrar. The admission form signed by the plaintiff, in the normal form for a public patient, acknowledged that the hospital would make the decision as to which doctor would perform the procedure.
13. The plaintiff acknowledged that she had previously held private health insurance, and that she knew that one advantage of that insurance was that it guaranteed the choice of a doctor. She maintained, however, that even though she was a public patient, she believed that Dr Heaton had said that he would personally perform the procedure.
14. I do not accept that a very experienced surgeon, familiar with dealing with both public and privately insured patients, would provide a guarantee to a public patient that they would, in effect, be treated as a private patient and be guaranteed the doctor’s individual services. I find that the plaintiff is mistaken in her recollection of these events. She was, in reality, treated in the normal manner for a public patient under the care of a specialist surgeon, in that she was admitted to the hospital on Dr Heaton’s list, but on the condition that she may have the procedure performed by a doctor other than Dr Heaton.
15. Mr Bartley SC, for the plaintiff, conceded that he knew of no authority for the proposition that a public hospital owed a duty of care to a public patient to allow them a specific choice between a consultant surgeon and a registrar. Such a duty, it seems to me, would be inimical to the broader public interest, in that it would undermine the future provision of health care. Most people would say, as the plaintiff has said in this case that, given the choice between an experienced consultant surgeon and a registrar, who is a qualified medical practitioner undertaking a training program to qualify as a specialist, they would choose the experienced consultant. This would have two effects if such a duty existed. The waiting list for procedures would clearly expand significantly, but more seriously, registrars would not be able to perform the procedures, under close supervision, that they need to qualify as specialists, resulting eventually in a dearth of suitably trained specialists.
16. There was considerable documentary evidence tendered concerning the training program in Australia conducted by the Royal Australasian College of Obstetricians and Gynaecologists. This shows that, in addition to fulfilling stringent academic requirements, a prospective surgeon must also be able to demonstrate practical clinical skills. The College’s training program is quite properly very rigorous and prescriptive, in that it requires trainees to demonstrate that they have successfully completed a specific number of specific procedures. It is necessary, over the many years of training, for a registrar to complete a substantial number of identified operations under the close supervision of a senior surgeon before the registrar can sit for examinations and eventually qualify for admission to the College as a specialist.
17. I am not satisfied that there is a duty of care on a hospital to provide a public patient with an express choice as to who performs the surgery. Dr Heaton said that, often the precise decision as to how much of the procedure would be performed by the consultant and how much by the registrar, would be made as the procedure progressed, at a time when the patient would be under general anaesthetic.
18. When a public hospital achieves the status of a teaching hospital, it may come under the teaching program of the various colleges. It will then be able to employ registrars who will undertake many procedures and provide many treatments to members of the public under the close supervision of senior members of the relevant College. I accept the evidence of those experts, who gave evidence on both the plaintiff’s and defendants’ cases and who were themselves College Fellows with involvement in the ongoing teaching program, that this system is essential for the long term viability of the public health system. I accept their evidence that the College programs are rigorous and thorough.
19. However, Mr Bartley was able to produce evidence in this case, some of which came to light only relatively recently, that raised real questions concerning the adequacy of the Hospital’s supervision of the Registrar program in relation to Dr Cree. This evidence went to very adverse reports about Dr Cree’s surgical skills generated during her placement at the Wagga Base Hospital up to July 1998, some three months before this procedure. More significantly, and disturbingly, a close examination of the records provided by the College suggest that Dr Cree was regarded by the Canberra Hospital and held out to Dr Heaton as a level three Registrar, when in fact her appropriate classification and the level of her skills, were commensurate only with that of a level two Registrar. Dr Heaton’s evidence, which was unchallenged and which I accept, was that he was lead to believe by the hospital that Dr Cree was a level three Registrar. The significance of this is that it was his unchallenged evidence, supported by the other experts, that it was appropriate to permit a level three Registrar to undertake a vaginal hysterectomy under close supervision, but it would never be appropriate to permit a level two Registrar to undertake such a procedure.
20. It is entirely uncontroversial that a public hospital, or indeed any health care provider, is under a duty of care to ensure that the professionals that it engages to provide services to the public are adequately and appropriately qualified to perform the services in question. In this case, the Canberra Hospital was a participant in the College training program, and regularly engaged registrars undertaking their training, at a range of levels. Dr Heaton, in addition to maintaining a private practice, offered his specialist services to the public hospital as a Visiting Medical Officer, and was, it seems to me, entitled to presume that a registrar offered to him by the hospital was appropriately qualified. His evidence, again supported by the other experts on both sides, was that when a consultant is working with a registrar during the training program the consultant would, at the end of the relevant period, provide an assessment to the College of the registrar’s competence. The individual consultant would, however, not be shown the assessments of other consultants. This makes real practical sense, as the consultant should not be influenced in their assessment by the views of their peers. It means, however, that the consultant has no knowledge of any prior adverse assessments and must take the registrar to hold the level of skills appropriate to the level within the training program. The training program extends over a calendar year. A level one Registrar will be in his/her first year of training. A level two Registrar will have successfully completed his/her first year, and be in his/her second year. A level three Registrar will have successfully completed his/her first and second years, and be in the third year of training and so on over the six years of training. The College training manual, which was in evidence, sets out in prescriptive detail exactly what skills a registrar must demonstrate in order to advance through each year of training.
21. The level of training and experience of Dr Cree at the time of this procedure in September 1998 became a central issue in this case. At the time when there was an active factual dispute as to whether the procedure was performed by Dr Heaton or Dr Cree, Dr Cree made a statement and signed an affidavit dated 9 September 2006 both of which relevantly stated:

22. This affidavit was sworn when the matter first came on for hearing at a time when the first and second defendants were separately represented, and when there was a live question of fact as to who had performed the surgery. At that time, I was told by those representing the first defendant that for reasons of health and an impending marriage, Dr Cree, who was living and working in the United Kingdom, could not give evidence in person in Australia, but would be available to give evidence if required by video link.
23. When the hearing actually commenced and the concession that the procedure was performed by Dr Cree was made, the defendants were jointly represented and were instructed by the solicitors who had previously represented Dr Heaton alone. I was generally told that attempts to contact Dr Cree had been unsuccessful, and I was provided with evidence that a subpoena had been served at her parents’ address in Sydney. I was disturbed to be told on the final day of this hearing that, on that very morning, legal practitioners representing the Australian Capital Territory had appeared in the Master’s Court in other proceedings involving Dr Cree to say that, although certain deadlines had been missed in filing material, they were in contact with Dr Cree and the material relevant to those proceedings would be provided.
24. I am very concerned that Dr Cree was not made available for cross-examination in these proceedings. She was, at the time, the health professional employed by the first defendant, and I find, as I was invited to find, that she did in fact perform this procedure under the close supervision of Dr Heaton. For a Judge in one court to be told that Dr Cree is not available and has not answered a subpoena, while the Master in the court next door is being told that the Australian Capital Territory Government Solicitor was in active contact with her, is disturbing, and it certainly invites me to draw a most adverse inference. I should note that Ms Burke, who was counsel for both defendants, was instructed in these proceedings before me by Tress Cocks & Maddox, Solicitors, although officers of the Australian Capital Territory Government Solicitor were frequently present throughout these proceedings.
25. Clearly, however, Dr Cree was a very crucial witness, and her absence in the defendants’ case was, in my view, not satisfactorily explained. I am entitled to draw the adverse inference that her evidence would not have assisted the first defendant’s case; (Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298.
26. Material obtained through a subpoena served on the College gave rise to real concerns about Dr Cree in 1998. I should say at the outset that the material also shows that Dr Cree continued the program of training and passed her membership examination. She was admitted to the College, having satisfactorily completed all practical and academic requirements of the program. It is not clear whether she has completed the program in order to apply for a Fellowship. However, what is relevant in this case is her level of training, competence and experience at the time of this procedure in September 1998.
27. There are assessment forms relating to her period at the Wagga Base Hospital of July 1998 that cause concern. These were tendered as exhibit B (pp 75-78). One consultant, Dr Stewart, rated her as a D for surgical skill, which corresponds on the College assessment form to “Major deficiencies in the technical skills expected of a trainee at this level”. Another consultant, Dr Angus, also rated her as a D for surgical skills, and added “Vanessa has major technical/surgical deficiencies for this level trainee - basic anatomy, surgical principles need attention”. Dr Angus’ report clearly identified her as being in “training year 2”. The third consultant at Wagga, Dr Currie, also rated her as a D for surgical skills, and observed “major technical limitations surgically”. His assessment also expressly identifies her as being in “training year 2”.
28. It seems to me that the only conclusion I can draw from this material is that, when Dr Cree returned to the Canberra Hospital in about July 1998, that hospital received her assessment reports from her placement at Wagga, which showed that she was, under the College program, in her second year of training, and had been rated D, meaning, that she exhibited major deficiencies in the technical skills expected of a trainee at the second year level.
29. The records show that Dr Currie, who was her supervisor at Wagga, passed these assessment reports to Dr Peak at the Canberra Hospital. The letter added “I had a long talk to her before she left, but she will need to make significant improvements if she is going to be able to complete her training” (exhibit B, p 79).
30. The records also show that Dr Peak, who was the training supervisor, filled in a report to the College on 24 September 1998 which showed that each of her Wagga supervisors had assessed her as a D for surgical skills, and clearly identified her as being in “training year 2”. Dr Peak recorded that she “needs more surgical experience”. There is also a letter from Dr Peak which accompanied the assessment to the Chairperson of the College’s NSW Training Committee, which states:

31. There are other assessment reports for calendar year 1999, filled out by Dr Peak as the training supervisor, which show that for the first six months of 1999 Dr Cree was assessed for surgical skills with one “B” (Sound technical skills for a trainee at this level of training) and two “Cs” (some deficiencies in the technical skills expected of a trainee at this level). For the second half of the year she received five C assessments for surgical skills with the note “improving”. Each of these reports for calendar year 1999 showed her as being in her third year of training.
32. I find from this that, when Dr Cree returned to the Canberra Hospital, the responsible officer of the hospital, Dr Peak, had documentary evidence which showed that she had been assessed with major deficiencies in surgical skills for a trainee in her second year. Notwithstanding this, he assessed her as satisfactory so that her training could continue and, indeed, she did go into her third year of training in calendar year 1999, and completed this satisfactorily.
33. However, as at September 1998, she was clearly on the College records endorsed by Dr Peak as a trainee in her second year. The hospital had material that cast a significant cloud over her skills and qualifications. Although the Wagga assessments meant she was assessed as “unsatisfactory”, Dr Peak decided to rate her as satisfactory. Despite this documentary material being available for some time, there was no report or affidavit from Dr Peak explaining why this course was taken. I was told that Dr Peak, who had moved to another hospital, had been contacted, but he was not available to give evidence for family reasons. I regard his absence as not satisfactorily explained. Given the importance of the fact that it was he who allowed a second year trainee with unsatisfactory surgical skills to continue in the training program, I am again entitled to draw the inference that any evidence that he may have given would not have assisted the first defendant (Jones v Dunkel).

34. Dr Heaton is a very experienced Obstetrician and Gynaecologist, who was admitted as a Fellow in 1984, having completed his undergraduate training in 1976. He was a surgeon at the Woden Valley Hospital (now known as the Canberra Hospital) from 1985 to 2000. From 1995 to 1998 he was Chairman of the Division of Obstetrics and Gynaecology at the Canberra Hospital and was a College examiner from 1999 to 2004.
35. He has always maintained that he has no independent recollection of the procedure performed on the plaintiff in September 1998, and for a busy medical practitioner who performs or takes part in many procedures, this is entirely understandable.
36. He had no independent recollection of his consultation with the plaintiff in January 1998, but he said, and I accept, that it is his normal procedure to say to a patient who identifies themselves as a public patient that (T 427/20):

37. This is what one would expect a specialist to tell a public patient, and I find that, to the extent that the plaintiff has a recollection or belief that Dr Heaton gave an undertaking that he would personally perform the procedure, an undertaking entirely inconsistent with her admission as a public patient in a teaching hospital, she is mistaken.
38. Dr Heaton said that, from the hospital notes he was of the view that Dr Cree performed this surgery. He identified his handwriting on the operation record. This was for two reasons. The first goes to the time of the operation. His evidence was that, as an experienced surgeon, he would normally perform this procedure in 20 to 40 minutes. This timing is consistent with the opinions of other experts for the time an experienced and skilful surgeon would take to perform such a procedure. The admission notes show that he booked the plaintiff in with a projected theatre time of 40 minutes. The operation record shows that the procedure commenced at 1320 and concluded at 1455, thus taking one hour and thirty-five minutes. Dr Heaton said in evidence (T 429/35) that in the absence of any complications in the surgery itself (and the notes show that there were no complications):

39. Dr Heaton also said that the record of the operation which shows Cree/Heaton was of significance, because it indicated that the surgery was performed by Dr Cree with his assistance. He said that the name of the registrar would go before his:

40. Dr Heaton’s evidence was that in about July 1998 he was informed by the training supervisor at the Canberra Hospital, Dr Peak, who his registrars would be for the next six month period (T433/20). He said that he was informed by Dr Peak about Dr Cree’s level of experience (T 434/25). He said that, as a result of the information provided to him by Dr Peak, he was of the view that Dr Cree was a “Level 3 Registrar in Training. Level 3 out of 6 levels” (T 436/ 34).
41. He gave a description of the process of training of registrars which is worth setting out in full. Dr Heaton said (T 436 ff):

42. In cross-examination Dr Heaton said that, although the training was based on calendar years, some candidates will not complete their training full-time, and the pass rate for the fourth year examination was in the order of 60 percent. So although the full training program runs over six years, many candidates would take longer to complete their training. He said (T 481/25):

43. It seems that this is what has happened with Dr Cree, who clearly by 1998 had been in the program for more than three years, but on the College records was still a level 2 Registrar.
44. Dr Heaton said that, from his present recollection, he was satisfied with the level of Dr Cree’s textbook knowledge as a level 3 Registrar as at September 1998 (T 439/45). His recollection as to her surgical skills was that she was competent, in that he meant (T 441/30):

45. Dr Heaton gave extensive detailed evidence as to each step that he would take in performing a routine vaginal hysterectomy and he said that, where he was working with a registrar, he would direct the registrar to follow his procedure meticulously. It was common ground that there are some variations in techniques used by skilled and proficient surgeons, with no one technique being inherently superior to the other. All the experts agreed that the technique described by Dr Heaton was entirely proper and appropriate.
46. Where he was supervising a level 3 Registrar, Dr Heaton described again each step in the procedure and how he would be in a position to closely observe the steps. He said (T 449/45):

47. In cross-examination he acknowledged that he would subject a level 2 Registrar to a higher level of scrutiny in supervision than he would a level 3 Registrar for the same procedure (T 476). He also acknowledged that the two procedures which the hospital records show Dr Cree assisted him with prior to the procedure that Dr Cree performed on 28 September 1998 would not have enabled Dr Cree to demonstrate skills that would have allowed Dr Heaton to gain an insight into her surgical technique (T 486/32).

48. The evidence relating to Dr Cree’s training under the College’s program is limited to the documentary material produced on subpoena by the College. As Dr Cree did not give evidence, I was unable to hear her side of the story and, as I have indicated earlier in these reasons, her absence as a material witness was not satisfactorily explained. I should indicate that as this case unfolded it emerged that a central issue was Dr Cree’s level of training and experience as at September 1998, and whether the Australian Capital Territory (the first defendant) through the Canberra Hospital was in breach of its duty of care to a public patient in permitting Dr Cree to perform a complex procedure, or alternatively in holding out to Dr Heaton that Dr Cree was competent to perform a complex procedure.
49. I should make the observation that the records confirm that, regardless of the considerable difficulties that seem to emerge from her training at around 1998, the records also show that she satisfactorily completed her training, and successfully undertook her membership examinations in 1995.
50. Dr Cree completed her secondary education in 1982 with a very strong New South Wales Higher School Certificate result, placing her within the top one percent of students. She successfully completed her undergraduate medical training in 1988 graduating with her Bachelor of Medicine and Bachelor of Surgery from the University of Sydney, a pre-eminent Australian medical faculty. She seems to have then worked as an intern and resident medical officer at leading Sydney hospitals. In 1994 she received approval from the College to commence her training program at Guys Hospital, London, from August 1994 (ex B, p 24). She seems to have received satisfactory assessments for her surgical skills for two six month periods from Guys Hospital with an average assessment of B - “Sound Technical Skill for a Trainee at this Level” for the 12 month period from the beginning of August 1994 to the end of July 1995.
51. There appear to have been difficulties in providing this material to the College and there is a document of July 1995 (ex B, p 55) indicating that the Training and Accreditation Committee of the College resolved in that month that unless the material was provided, she would be required to undertake an additional six months of training. It would appear that this is what happened. The next College record shows her as being assessed at the John Hunter Hospital in New South Wales commencing in August 1996. Her training report for the period August 1996 to June 1997 still records her as being in her first year of training, and again shows a B average for surgical skills.
52. There is an overall satisfactory report for the second half of 1997 at John Hunter Hospital which has the training year shown as “level 1” with the figure 2 struck out. There is an earlier report for the first half of 1997 at John Hunter Hospital, with again the level of training shown as “level 1” with the figure 2 struck out in which her surgical skill is assessed at a C, meaning, on the College guidelines, “some deficiencies in the technical skills expected of a trainee at this level”.
53. It thus appears that, at the point at which Dr Cree commenced her placement at Wagga Base Hospital in the first half of 1998, she had been undertaking the training program since August 1994, and had undertaken training for at least the periods August 1994 to July 1995, and August 1996 to the end of 1997. She seems to have had to repeat at least a part of this training because of difficulties in getting some of the London reports to the College. There were also periods when she seems not to have been working.
54. Her Wagga assessments have previously been referred to in [27] of these reasons. On her return to Canberra, the College records show that Dr Peak assessed her in April 1999 for the period July 1998 to January 1999 as being satisfactory overall, with her surgical skills assessments as one A, two Bs and one C (ex B, p 90). She is clearly shown as being in training year 2 in this document. According to the College records, she was in the third year of her training during the period January 1999 to July 1999, The College records show her as being in training year 3 for the period January 1999 to July 1999, when Dr Peak assessed her as satisfactory overall, with one B and two Cs for surgical skills. Her third year seems to have concluded on an overall satisfactory assessment for the period ending January 2000 with five C ratings for surgical skills. I note that this assessment seems to have been concluded in May 2000. She is recorded as moving into her fourth year of training in January 2000 at the Canberra Hospital. There is an assessment showing satisfactory completion of the fourth year in January 2001, with a B average for surgical skills (ex B, p 128). She seems to have qualified for admission as a Member of the College (indicating completion of four years as a registrar and having passed the examination) in June 2001, although the certification was not completed until June 2002. After travelling for the first half of 2001, she seems to have recommenced the program as a level 5 Registrar in May 2001 at Westmead Hospital in New South Wales, but it seems she did not in fact commence at that hospital, but instead trained at Blacktown Hospital.
55. Dr Cree seems to have taken ill in late 2001, which delayed her training. She obtained approval to be absent from the training program for the calendar years from 2002 to date. There is a certification from the College in June 2005 stating (ex B, p 200):

56. This certification, which shows that the College regards her training as commencing in 1997, is not consistent with the record that shows training commencing in 1994, but is consistent with some notes in the records of the College that shows that she lost credit for some earlier years of training. There is a document at p 173 of the compiled records of the College entitled “RANZCOG TRAINING SUMMARY” that seems to show the best state of the College’s records in relation to her training, which I set out in full:

*Year Level*	*6 monthly report*	*Clinical training summaries*	*Registration Form*
Year 1 (first half) Year 1 (second half)	14/01/97-14/07/97 14/07/97-12/01/98	14/01/97-14/07/97 14/07/97-12/01/98	13/01/1997-13/01/1998 John Hunter Hospital
Year 2 (first half) Year 2 (second half)	12/01/98-12/07/98 13/07/98-12/01/99	12/01/98-12/07/98 13/07/98-12/01/99	12/01/1998-12/01/1999 The Canberra Hospital
Year 3 (first half) Year 3 (second half)	14/01/99-13/07/99 14/07/99-14/01/00	14/01/99-13/07/99 14/07/99-14/01/00	11/01/1999-11/01/2000 The Canberra Hospital
Year 4 (first half) Year 4 (second half)	16/01/00-16/07/00 17/07/00-20/01/01	16/01/00-16/07/00 17/07/00-20/01/01	16/01/2000-16/01/2001 The Canberra Hospital
Year 5 (first half) Year 5 (second half)
Year 6 (first half) Year 6 (second half)

57. It seems to me to be clear from this material that, at the time that Dr Cree was permitted by Dr Heaton to perform the procedure on the plaintiff, she was, on the documentation approved by the Canberra Hospital, shown to be in her second year of training. On the documentation Dr Cree appears to have performed at a troublingly unsatisfactory level in the immediate six month period preceding her placement at Canberra.
58. Dr Heaton gave evidence, which was uncontradicted and which I accept, that he was told by Dr Peak, who was the responsible officer in the Canberra Hospital at the time, that Dr Cree was a level 3 Registrar. Since she had been in fact working in hospitals as a registrar since 1994, this would have seemed reasonable. Dr Heaton was not shown the documentation that recorded her as only being in level two of her training, and nor was he told of the adverse assessments.
59. As Dr Peak did not give any evidence, and I was not satisfied with the explanation for this, it seems to me that I am entitled to find that the first defendant was negligent in permitting Dr Cree to perform a procedure that was clearly beyond the capacity of a second year trainee with adverse training assessments for surgical skills. I also find that the first defendant was negligent in holding Dr Cree out to Dr Heaton as a level 3 Registrar. I am not satisfied that Dr Heaton was negligent, and I am not critical of him for permitting a registrar who he was lead to believe was in the third year of the college training program to perform the procedure.
60. Given that I find, as a matter of fact, that when Dr Cree performed the procedure she had been subject to severely critical assessments of her surgical skills by three well regarded consultants at the Wagga Hospital, I am satisfied on the balance of probabilities that, while performing the suturing of the vaginal wound Dr Cree inadvertently caught the plaintiff’s fallopian tube in the suture line. It seems to me that, on all the medical evidence, this is the most likely reason for the prolapse of the tube. While I accept the expert evidence of a number of senior doctors that it is possible for this to happen even without any negligence when the procedure is performed by a skilled and competent surgeon with due care, I find, as a matter of fact, that this procedure was in fact performed by a surgeon who had significant adverse assessments of her surgical skills, and who had never performed such a procedure before. While she was under close observation by an experienced consultant, that consultant was under a misapprehension about her level of skill, and the particular aspect of the procedure that I find lead to the entrapment of the fallopian tube in the suture occurred on the internal side of the sutured wound, which is outside the line of sight of both Dr Cree and Dr Heaton.
61. I should make it clear that I find negligence against the first defendant solely on the basis that, being in possession of adverse assessment reports which showed that Dr Cree had been rated as unsatisfactory for surgical skills as a level 2 Registrar, the hospital, through Dr Peak, made a decision to rate her as satisfactory, and held her out to Dr Heaton as a level 3 Registrar in good standing. I am confidently able to make these findings of fact on the documentary evidence and the unchallenged evidence of Dr Heaton. There was no evidence from Dr Cree or Dr Peak, and I am entitled to draw an adverse inference from this.
62. I do not accept that there is a general duty of care on a public hospital to in effect provide public patients with a choice of doctor, or to appraise a patient as to the academic standing of a registrar. However, there is a duty on a hospital to ensure that it provides patients with suitably qualified staff. The rigorous College training program, it seems to me, ensures that, at each stage of their training, a registrar in good standing is suitably qualified to perform the range of procedures commensurate with their level of training. In this case, a registrar known to the hospital to have major deficiencies in surgical techniques for a level 2 Registrar was held out to Dr Heaton as a level 3 Registrar, and he allowed her to perform a procedure that he would not have permitted a level 2 Registrar to perform.
63. As previously mentioned, I do not find that Dr Heaton was negligent. He was entitled to rely on what the hospital told him about Dr Cree’s standing. It would undermine the College training program for consultants to be shown a trainee’s previous assessment reports. A consultant is entitled to assume that a trainee who is allowed to continue in the program has passed the earlier parts of the program at a satisfactory level, and is entitled to assume that a registrar at a given level holds the appropriate skills for that level.
64. I am satisfied from Dr Heaton’s evidence and the evidence of other experienced surgeons, that it was entirely appropriate for him to allow a level 3 Registrar to perform this procedure under his close supervision. The negligence that I find occurred here was when Dr Cree caught the fallopian tube within the suture line as she was closing the incision in the vaginal vault. This occurred on the internal side, and could not have been observed by Dr Heaton.

65. There are two causation issues that must be addressed before considering the question of the appropriate level of damages. All of the medical experts were agreed that, although a substantive procedure, a vaginal hysterectomy would normally resolve quickly with few complications, allowing a rapid return to full health. Unfortunately, after the procedure had been completed, the hospital notes show that the plaintiff extubated herself - that is to say, removed tubes that were supporting her breathing during general anaesthetic. Although she gave evidence of a recollection of a struggle in the operating theatre, this is not supported by any medical evidence, and I am satisfied that her recollection is incorrect. The removal of the tube lead to complications that resulted in a period of recovery in intensive care.
66. There was no expert medical evidence suggesting that there was any negligence in respect of the administration of the anaesthetic or the care during the procedure by the hospital staff. Mr Bartley submitted that this complication could nevertheless be seen as causally related to the defendant’s negligence on the basis that, had the procedure been performed by a consultant surgeon or properly qualified practitioner on another day, the extubation incident may not have occurred.
67. Although this submission is consistent with the reasoning of the High Court in Chappel v Hart [1998] HCA 55; (1998) 195 CLR 232, it seems to me that, on the unusual facts of this case, it is inappropriate. That case stands for the proposition that, where a patient undergoes a procedure due to a doctor’s negligent failure to warn of a risk, and the evidence is that, if warned, the patient would have delayed the procedure, the doctor can be held liable for consequences of the procedure even where direct negligence is not proven as to that consequence.
68. In this case, Dr Heaton was present in the theatre, scrubbed and assisting. His evidence is that, had he not had confidence in Dr Cree at any time he would have taken over and performed the procedure himself. The negligence that I have found was the negligence on the part of the hospital in holding Dr Cree out as a level 3 Registrar, capable of performing this procedure. On the facts of this case, had Dr Heaton been informed of the true situation, he would have simply taken over and performed the procedure himself. I am not satisfied that the post-operative complications can be causally related to the hospital’s negligence.
69. It seems on all of the medical evidence that, although the fallopian tube was caught in the suture line, it was not at the time the procedure was completed actually prolapsing through into the vagina, and indeed this did not occur for some months. There seemed to be nothing amiss at the normal post-operative check. However, I accept from the medical evidence that it was because the tube was caught in the suture line that it eventually worked its way through the healing surgical incision and prolapsed through into the vagina.
70. Clearly, the complications that flowed from this, and which culminated in a further operation in February 2000 when the prolapsed distal portion of the fallopian tube was removed, which I will set out fully in considering damages, are causally related to the first defendant’s negligence.
71. After this procedure the plaintiff continued to complain of pelvic pain, and an ultrasound showed what seemed to be a lesion involving the right ovary. The presence of a tubo-ovarian mass on the right side was confirmed by a laparoscopy in June 2000, and in February 2001 a further procedure was performed by laparotomy to remove this mass.
72. The plaintiff claims that this was causally related to the entrapment of the fallopian tube, but the defendants point to a number of difficulties with this assertion. There was, as would ordinarily be the case, an immediate histopathological examination of the tubo-ovarian mass. This is essential to exclude any cancerous cells. The records show a probable corpus luteum cyst to the right ovary, which would not be causally related to an earlier entrapment of part of the fallopian tube. The pathology report also reported “no remarkable abnormalities” of the residual fallopian tube. This would render it less likely that the cyst developed by reason of the residual fallopian tube being, in effect, the internal side of the tube that had prolapsed though the incision.
73. The plaintiff also had a pre-existing history of a right ovarian cyst, which was treated under laparoscopy in December 1995.
74. It is also significant that from the notes of the surgeon who performed this procedure at the Orange Base Hospital, Dr Knox did not observe any portion of the fallopian tube to be adherent to the vaginal vault. I accept the evidence of Dr Reid on this point, and I am not satisfied that the ovarian mass which was removed in February 2001 was causally related to the September 1998 negligence.

75. The plaintiff was born in 1963 in Griffith in New South Wales and attended the local High School to completion of Year 10. She then worked in retail jobs. She had experienced two unsuccessful pregnancies and consulted Dr Heaton in 1985. Dr Heaton became her specialist doctor for the birth of her first child in 1986. By this time the plaintiff and her then husband had moved to Canberra where he was working as a furniture removalist. Dr Heaton again attended the plaintiff during the birth of her second child in 1989. In 1991 he performed a laparoscopic sterilisation on her.
76. The plaintiff had a history of gynaecological difficulties during the second half of the 1990’s. In 1995 her general practitioner referred her again to Dr Heaton with symptoms of ongoing pelvic pain and dyspareunia. He suspected endometriosis, and laparoscopic surgery was performed in December 1995. This revealed no endometriosis, but a haemorrhagic right ovarian cyst was discovered, which was partly adhered to the bowel behind the uterus. This was appropriately treated.
77. She was again referred to Dr Heaton in January 1998 with a history of heavy painful periods and recurrent deep dyspareunia. He recommended the hysterectomy, the subject of this action. All of the experts who gave evidence in this case agreed that this was an appropriate procedure.
78. Although the hospital notes show that the procedure itself was uncomplicated and uneventful, the extubation incident created complications. The nature of the negligence that I have found established in this case is entirely consistent with the actual post operative process being uneventful, as I have found that the tube was caught up in the suture line, but that it did not actually prolapse through the healing wound for some time.
79. The consequence of the extubation was the development of pulmonary oedema secondary to transient airway obstruction and acute hypoxia. As I have found that this is not causally related to the negligence, this does not sound in damages.
80. On post-operative review in November 1998 no complications were apparent. I must observe that, although the plaintiff gave evidence that Dr Heaton did not undertake a vaginal examination at this review. I am satisfied from his notes and his evidence as to general practice that such an examination, a normal process on review for a vaginal hysterectomy, was undertaken. The plaintiff also gave evidence that Dr Heaton was rude and distant towards her at this review, but again I am not satisfied that her recollection in this regard is accurate.
81. The medical notes show that she began to develop difficulties about mid 1999. This would be entirely consistent with the development of the prolapse of the tube that had been caught up in the suture line. She consulted Dr Chiragakis in November 1999 who, in his report to the general practitioner, says that she complained of pain and he found what he thought to be a granulation at the vaginal vault. Such an occurrence is, I understand from the medical evidence, not an unusual consequence of a vaginal hysterectomy, and Dr Chiragakis attempted an entirely appropriate treatment, which was the application of silver nitrate. Where the cause of the discomfort is truly mere granulation consequent upon surgery, silver nitrate will dissolve the granulation with no adverse consequences. I accept the medical evidence that the application of silver nitrate to a prolapsed fallopian tube would create extreme pain, which is what Dr Chiragakis reported.
82. Dr Chiragakis still believed, reasonably, that he was dealing only with a degree of granulation, and he referred the plaintiff to a laser surgery clinic for excision of the granulation. Again this was unsuccessful and caused discomfort.
83. In February 2000 she was admitted to hospital under Dr Chiragakis, who says in his report (ex G):

84. Following the procedure, Dr Chiragakis wrote to the plaintiff’s general practitioner in Orange. By this time her marriage had ended and she had moved away from Canberra. Given that the February procedure had revealed the prolapse of the distal portion of the fallopian tube into the vaginal vault, Dr Chiragakis, not unreasonably, had concerns as to what would be found on the other side. He said to the general practitioner:

85. It seems that it is this comment that has lead other doctors to believe that the subsequent medical history, which was of ongoing pain and the subsequent discovery of the inflamed right ovary, was indeed related to the 1998 procedure. However, Dr Chiragakis’s original observation was based on a concern that the other end of the fallopian tube was stuck in the vault. The observations of Dr Knox that there was no adhesion to the vault and the pathology reports that there was no abnormality in the proximal portion of the fallopian tube that had adhered to the ovary has lead me to find that this was not in fact the explanation for the subsequent difficulties.
86. I thus assess the plaintiff, in relation to general damages, on the basis that the negligence of the first defendant lead to the inclusion of the distal end of the fallopian tube in the suture line, and the subsequent prolapse of the tube into the vagina. This led to ongoing pain and discomfort, which caused her to attend for treatment. Her general practitioner appropriately referred her to a specialist, and the specialist, Dr Chiragakis, made the initial diagnosis of granulation at the point of the surgical incision. Given the extremely rare occurrence of a prolapsed fallopian tube following vaginal hysterectomy, the experts were agreed that this was a reasonable diagnosis, and that his original method of treatment, the application of silver nitrate, was also reasonable.
87. Unfortunately, this was not only ineffective but, I am satisfied, extremely painful. The subsequent attempt at laser treatment was also ineffective and painful, and she eventually underwent laparoscopic surgery in February 2000, which successfully resolved the issue.
88. I thus assess her on the basis that the negligence of the first defendant resulted in pain and discomfort that developed in about June of 1999 and continued until resolution in February 2000. I accept that this led to two unsuccessful attempts at treatment that caused extreme pain and discomfort, and eventual surgery.
89. I accept that for this period the plaintiff was significantly disabled, and I accept her evidence that moving, bending and lifting all produced pain.
90. In relation to general damages, I award the plaintiff the sum of $50,000 inclusive of interest on the basis of the consequences of the negligence that I have set out above. In making the observation that the range suggested by counsel for the plaintiff ($80,000 - $100,000) would have been entirely appropriate had I found that the consequences of the extubation, and the subsequent ovarian mass, were causally related to the original negligence.
91. Past out-of-pocket expenses were agreed arithmetically at $2,019.77, which I award. As this is essentially a closed period claim on my findings, I make no award for future out-of-pocket expenses.
92. The plaintiff’s claim for economic loss was particularised on the basis of an inability to work from the date of surgery to August 2000, being 100 weeks, and then an inability to work from the February 2001 surgery for a further six and a half weeks. This was particularised on the basis of net weekly earnings of $875, which was said to reflect her earnings prior to the surgery.
93. Her evidence was that, prior to the surgery in September 1998, she had been doing the administrative work for her former husband’s business. He was a truck driver. She was unable to produce any taxation or other financial records to substantiate the claimed earnings of $1250 - $2000 per week and I find this excessive. Her evidence was that taking the bookings by telephone and doing the books and banking for a single truck owner/driver business was more than a full-time occupation.
94. It is always difficult for a plaintiff to make out a claim for substantial economic loss where there are no records of actual earnings prior to the incident said to give rise to the loss of earning capacity, and no taxation returns. While I accept that the consequences of the negligence would have had a significant impact on her earning capacity from about June of 1999 to shortly after the February 2000 surgery, I am not satisfied that the claimed weekly earnings are accurate. Moreover, I am not satisfied on the medical evidence that the difficulties and discomfort that she undoubtedly did suffer would have rendered her totally unable to work. She has a history, apart from the period in the business, of retail type employment on casual and flexible hours prior to the 1998 procedure. Given the absence of taxation records, or evidence of full-time employment, it seems to me that the best that can be done is to award the sum of $30,000 inclusive of interest as a buffer for the relevant period. I have found that the consequences of the defendant’s negligence effectively ended shortly after February 2000, and indeed her subsequent employment history shows that she has obtained a range of administrative and management positions.
95. This amounts to a total award of $82,019.77, which I consider to be appropriate in all the circumstances, and which I award.
96. There shall be judgment for the plaintiff against the first defendant in the sum of $82,019.77 with costs. There shall be judgment for the second defendant. I will hear the parties as to the costs of the second defendant.

I certify that the preceding ninety-six (96) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Connolly.

Counsel for the plaintiff: Mr AC Bartley SC with Ms L Whalan
Solicitor for the plaintiff: Maliganis Edwards Johnson as agent for
King Street Lawyers

Counsel for the defendants: Ms K Burke
Solicitor for the 1st defendant: ACT Government Solicitors
Solicitor for the 2nd defendant: Sparke Helmore as agent for
Tress Cocks & Maddox

Supreme Court of the ACT

Brus v Australian Capital Territory & Anor [2007] ACTSC 83 (12 October 2007)