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Supreme Court of New South Wales - Court of Appeal |
Last Updated: 16 March 2001
NEW SOUTH WALES COURT OF APPEAL
CITATION: PRESCOTT-SMITH v SANDHU & ANOR [2001] NSWCA 43
FILE NUMBER(S):
40480/99
HEARING DATE(S): 20 February 2001
JUDGMENT DATE: 14/03/2001
PARTIES:
Jennifer Prescott-Smith - Appellant
Dr Amarjit Singh Sandhu - First Respondent
Dr Clive Gudgeon - Second Respondent
JUDGMENT OF: Sheller JA Fitzgerald JA Ipp AJA
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): 1169/95
LOWER COURT JUDICIAL OFFICER: McDonell ADCJ
COUNSEL:
D A Wheelahan QC/R L Ingram - Appellant
G M Gregg - Respondents
SOLICITORS:
Beverley Foster & Associates - Appellant
Tress Cox Maddox - Respondents
CATCHWORDS:
NEGLIGENCE - liability - provision of medical services - whether failure to warn of risks - whether procedure performed correctly - whether epidural anaesthetic effective - whether plaintiff's account of the procedure supported by evidence - defendants had no personal recollection of procedure - whether appeal court should interfere with findings of fact and credibility.
NEGLIGENCE - liability - whether damage suffered - provision of medical services - failure to warn and advise - plaintiff received particular form of incision - doctor did not explain either before or after procedure that this form was medically necessary - whether plaintiff suffered psychological damage as a consequence of failure to warn or advise.
CONTRACT - breach - whether contract for provision of medical services breached.
LEGISLATION CITED:
N/A
DECISION:
Appeal dismissed with costs
JUDGMENT:
THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40480/99
DC 1169/95
SHELLER JA
FITZGERALD JA
IPP AJA
The appeal concerned proceedings in the District Court, in which the plaintiff sought to recover damages for negligence and breach of contract from the two defendants in relation to a caesarean section performed on 26 March 1992. The first defendant was the anaesthetist for the procedure, and the second defendant was the obstetrician and gynaecologist. The plaintiff alleged that the epidural anaesthetic administered to her was ineffective, and consequently she experienced severe pain throughout the procedure, and ongoing psychological trauma. The particulars included claims that the defendants had failed to warn her of the risks of treatment, to administer and test the anaesthetic properly, to heed the plaintiff's complaints during the procedure, and to provide counselling to the plaintiff in the wake of the procedure.
The plaintiff further alleged that the second defendant failed to advise her that she would receive a longitudinal rather than horizontal incision, or to explain why this form of incision was medically necessary, and that this had resulted in further psychological trauma.
McDonell ADCJ found that the weight of the evidence did not support the plaintiff's claim that she was in pain and struggling during the procedure, although he did not believe she had deliberately reconstructed those events. The claim based on a lack of counselling consequently failed. His Honour found that the plaintiff was made sufficiently aware of the risks involved in the use of the epidural. The claim based on the form of incision failed since the plaintiff would have proceeded with a caesarean section even if she had been informed the incision would be longitudinal, and since she had failed to prove that she suffered psychological damage as a consequence of the form of the scar. The plaintiff appealed against this decision on twenty-four grounds.
Held: per Sheller JA (Fitzgerald JA and Ipp AJA agreeing)
Generally
1. Many of the grounds of appeal ignored the limited scope for appeal to the Court on findings of fact.
2. A number of the grounds of appeal required a rejection of the trial Judge's findings as to credibility, yet such findings will be set aside only where "glaringly improbable" - Devries v Australian National Railways Commission (1993) 177 CLR 472, cited.
The claim based on the epidural anaesthetic
3. The trial Judge was correct to suggest that the seriousness of the appellant's claims must affect the question of whether the issue has been proved to the reasonable satisfaction of the tribunal - Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, cited.
4. As to the appellant's claim that the trial Judge failed to take into account particular evidence raised by her - a trial Judge is not required to make an express finding in respect of every fact leading to, or relevant to, his final conclusion of facts.
5. The critical finding of the trial Judge, from which the failure of the plaintiff's case followed, was that he did not accept the plaintiff's version of what occurred during the operation. This finding was entirely justified by the available evidence.
The claim based on the form of incision
6. The appellant contended that the trial Judge failed to deal with her claim that she suffered damage because she was not told the longitudinal incision was necessary for medical reasons. However, the finding that there was insufficient evidence of psychological damage as a consequence of the incision also led to a failure of this particular ground. Since this finding must be at least partly based on the trial Judge's finding as to credibility, it also failed.
Cases cited:
Tucker v Hospital Corporation Australia Pty Ltd (unreported) 18 February 1999
Jones v Dunkel [1959] HCA 8; 1959) 101 CLR 298
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
O'Brien v Wheeler (unreported) NSWCA 23 May 1997
Ellis v Wallsend District Hospital (1989) 17 NSWLR 553
Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167
Devries v Australian National Railways Commission (1993) 177 CLR 472
Mifsud v Campbell (1991) 21 NSWLR 725
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Appeal dismissed with costs.
*****
THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40480/99
DC 1169/95
SHELLER JA
FITZGERALD JA
IPP AJA
Wednesday, 14 March 2001
SHELLER JA:
Introduction
1 This appeal is about proceedings in the District Court to recover damages for alleged negligence and breach of contract in the delivery of medical services for the birth of the plaintiff's third child. The plaintiff, Jennifer Prescott-Smith, appeals from a verdict and judgment of Acting District Court Judge McDonell of 28 May 1999 in favour of the defendants and respondents, Dr Amarjit Singh Sandhu and Dr Clive Gudgeon.
The plaintiff's claim
2 In terms of a statement of claim, the last amendment of which was made at the trial, the plaintiff sued the first defendant, an anaesthetist, and the second defendant, an obstetrician and gynaecologist, for negligence and breach of contract in relation to the performance by the second defendant of a caesarean section upon the plaintiff at Fairfield District Hospital on 26 March 1992. The first defendant performed an epidural anaesthetic upon the plaintiff for the purpose of the caesarean section.
3 The plaintiff claimed that during the caesarean section the anaesthetic failed or was ineffective, or both, thereby causing the plaintiff injury, pain and suffering as particularised in the amended statement of claim. The plaintiff gave numerous particulars of negligence and breach of contract against each defendant. Against the first defendant the particulars can be usefully summarised in four groups. The first group consisted of various alleged failures in performing the epidural anaesthetic and testing its effectiveness and failing to stop the section proceeding despite the ineffective anaesthetic. The second group of particulars related to an alleged failure to heed the plaintiff's complaints, stop the caesarean section proceeding and perform a general anaesthetic and failure to observe that the anaesthetic was ineffective. In the third group were allegations of the first defendant's failure to advise of the risks of treatment and of alternative forms of treatment before the anaesthetic was administered. Particulars in the fourth group alleged failure to advise or arrange psychological counselling for the plaintiff and review the plaintiff following the anaesthetic for signs of a psychological condition.
4 The particulars of negligence against the second defendant fell into five groups. Particulars in the first group alleged failures to allow time for the anaesthetic to become effective, to test for its effectiveness, to advise the first defendant that there was insufficient time for the anaesthetic to become effective and to stop the section from proceedings while it was not effective. Particulars in the second group related to failure to heed or act upon the complaints of the plaintiff. Particulars in the third group related to failure to advise the first defendant to perform a general anaesthetic following the failure of the anaesthetic or the plaintiff's complaint of pain and failure to observe that the epidural anaesthetic was ineffective. The fourth group consisted of an alleged failure to advise the plaintiff to undergo psychological counselling or arrange counselling or review the plaintiff. The fifth group was expressed as failure to advise the plaintiff that a longitudinal caesarean was to be performed, of the risks of treatment and of the alternative forms of treatment. During the trial a new particular against the second defendant was added as follows:
"(r) Failure to advise the plaintiff that she required a longitudinal abdominal incision for medical reasons rather than a bikini line or horizontal incision."
5 Against both defendants the plaintiff relied on res ipsa loquitur. That seems to have had no significance either at the trial or on the appeal.
6 The plaintiff claimed to have suffered, inter alia, nervous shock, pain, anxiety and depression.
The trial
7 The trial took place between 14 and 17 October 1997, on 20 April 1998, between 12 and 23 October 1998. The trial Judge noted that the last of the plaintiff's written submissions were received in May 1999.
8 The trial Judge, in his reasons for judgment, carefully reviewed the nature of the proceedings and the evidence both in summary form and then, its critical parts, in more detail. In the introduction to the reasons for judgment his Honour said:
"1.5 The plaintiff's claim against the two defendants arose out of the medical services provided to the plaintiff and the warnings given in relation to those services, being the administration by the first defendant of an epidural block anaesthetic (EDB) on the 26th March, 1992, in conjunction with an elective caesarean mid-line section performed on the same day by the second defendant.
1.6 The plaintiff was born on the 18th September, 1961 and was aged 30 at the date of the operation.
....
2.1 The plaintiff's evidence is that she experienced two previous difficult births which were, in her terms, posterior oppositional positioning or face presentation births with post-partum haemorrhage in both cases. She sought, in respect of the birth of her third child, to have a caesarean section. She specifically sought the administration of an epidural block (EDB) so that she might be conscious during the birth. She desired to be able to hold her child and bond with it at birth as such experience had been denied her due to the complications of her prior two births.
2.2 Her evidence is that the caesarean section was her choice and elective, as was the EDB. She admits in evidence that the second defendant, Dr Gudgeon, counselled her to consider a vaginal birth prior to commitment to caesarean section but she determined nevertheless to undertake a caesarean section. The operation resulted in satisfactory delivery, although the child allegedly sustained two or three shall cuts on his skull near the hairline.
2.3 The plaintiff's complaints against the anaesthetist and obstetrician were that the anaesthetist failed to properly administer the EDB and failed to test the effectiveness of the EDB. This failure resulted in the plaintiff feeling extreme pain throughout the operation from the point of first incision to completion of the operation over a period of approximately twenty two minutes. She says that the obstetrician was aware of her pain, stopped the operation on the first incision and then very shortly afterwards, recommenced the operation with the words `we cannot wait'. The doctor thereafter continued through the entire operation, excising her while the plaintiff screamed, moaned and squirmed on the operating table and lapsed in and out of consciousness.
2.4 The plaintiff's then husband was called to corroborate the plaintiff's evidence although he admits to not being present throughout the entire procedure.
2.5 The defendants and other members of the surgical team at the time of the operation all say that they have no recollection of the operation nor any incident at the hospital in which they were involved which resembles such an incident. All members of the surgical team involved in the plaintiff's operation were called apart from one nurse who has resided in the United States of America for some years."
9 In addition to her then husband, Dale Prescott-Smith, the plaintiff called two lay witnesses, her mother, Mrs James and a friend, Mr Parker. The trial Judge said that Mrs James and Mr Parker both supplied short and inconclusive evidence. The plaintiff also called two expert witnesses, Dr Charles Sara, an anaesthetist, and Dr Derek Lovell, a psychiatrist.
10 Before the successful birth of her child on 26 March 1992 the plaintiff had had two previous "difficult" births in 1983 and 1987. She had experienced marital problems with her then husband and in particular had had to cope with his alcoholism. She had undergone separation and counselling. Upon diagnosis of pregnancy with her third child the plaintiff attended Fairfield District Hospital ante-natal clinic on several occasions. She saw the second defendant three or four times. Her evidence was that she told Dr Gudgeon of the previous births and her concern that she would have a similar experience. She expressed the importance to him of holding the child straight after birth. In particular, she raised with the surgeon her desire for a caesarean section. On her last visit to Dr Gudgeon, she, herself, raised the question of having an EDB. His Honour said:
"3.8 At the date of delivery, the plaintiff was 39 weeks pregnant and the procedure was an elective caesarean section. The plaintiff was emphatic that the second defendant, Dr Gudgeon, did not discuss with her matters pertaining to the efficacy of the epidural block or a vaginal delivery after she had undertaken to have a caesarean section. He did not advise her that the caesarean incision would be of a longitudinal line, rather than the horizontal or `bikini line' incision."
11 The plaintiff first met the first defendant, Dr Sandhu, on the morning of the operation. According to her evidence, she left her room at the hospital at approximately 7.30 am to be taken to the operating theatre. In a small room off the operating room she saw Dr Sandhu for the first time. The trial Judge set out her evidence in chief. According to that, Dr Sandhu explained what the plaintiff had to do. She said he spoke abruptly and very rudely. He made two attempts to thread the catheter through. After these two attempts had failed the plaintiff's evidence was:
"Then Dr Sandhu said to me `if we don't get it done this time, you are going to have to go back to your room and its going to have to be done tomorrow'."
The third attempt was successful.
12 The trial Judge said:
"3.13 The plaintiff was emphatic that Dr Sandhu the anaesthetist did not say anything to her about the risk of an epidural not working properly, of the risk of severe pain, of the necessity to test to see if it was working, of the risk the epidural might be patchy in its effect or the alternatives to the epidural.
3.14 The plaintiff was equally emphatic that Dr Sandhu did not carry out any tests to detect whether the epidural had taken effect and denied he used any pins or forceps on her.
3.15 She gave evidence of being wheeled into the operating theatre after the administration of the epidural in her words `almost immediately'. In the operating room she was put on the theatre table."
13 During her cross-examination the plaintiff said that she was "lifted onto" the theatre table. To assist this, she "sort of tried to lift my weight a bit and move over". She did not recall a wedge being placed under her right buttock. She gave evidence of being connected to monitors and talking to theatre staff. She recollected a blood pressure band being put around her left arm which was connected to a machine on her left side. She recollected being draped and swabbed and a sticker with a wire connected to a monitor being attached to her chest. In cross-examination she said she recalled the area of her stomach upon which the operation was to take place being swabbed but could not see this procedure being carried out. After the swab, according to the plaintiff, Dr Gudgeon came in and commenced the operation. This was five to ten minutes after the plaintiff went into the operating room. The plaintiff said:
"It wasn't very long at all. It was sort of almost like I was wheeled in, draped he came in and started."
14 Dr Gudgeon incised the plaintiff's stomach from the umbilicus to the pubic area. She described what happened as follows:
"Q. Now what did you first notice when he started the operating, if anything? A. He started making the incision and the pain was so bad but as it got down towards my pubic area it was just excruciating pain and I just drew up, you know I just screamed I can feel that.
Q. Now just pausing there, prior to commencing the operation did Dr Gudgeon ask you anything about testing whether you could feel pain? A. No.
Q. Well prior to the operation commencing were you tested by anyone as to whether the epidural was working or not? A. I wasn't tested in any way shape or form of pain to see if I was feeling anything.
Q. You say that Dr Gudgeon started the operation, at what stage could you feel the pain? A. I could feel pain in the initial incision and as well I presume it would be a scalpel used, I could feel that all the way down but when it got, like down around my pubic area it was just - I mean it was unbelievable pain but that was just - I just - I couldn't describe it. It's just unless you had, you've no idea what it's like. Just -"
15 A little later the plaintiff said: [14 October 1997, page 27-28 at line 57]
"Q. And at that stage did you notice anything or did anything happen with your legs? A. Well I drew them up, you know like, you know oh what you'd call a protective mode you know, sort of to protect the area that was hurting.
Q. Now at that stage did anybody say anything to you? A. Dr Gudgeon said `We'll have to wait'.
Q. Now up to that time was your state of consciousness like? A. I was alert, awake.
Q. What happened then? A. Several alarms went off on machinery to my left and Dr Gudgeon said `We can't.
Q. And then what occurred? A. Well then it was sort of a real flurry of people rushing around the room. I felt my legs being dragged down. Someone had this arm [right arm]
Q. And what did you notice then about the operation? A. It just went on from there."
16 The trial Judge said:
"3.22 The plaintiff gave evidence that immediately after this incident a nurse tried to place a mask on her face. The plaintiff was asked [14 October 1997, page 30 line 45]:
Q. And what about at that stage pain? A. Oh the pain was just unbelievable. I was squirming you know back and forth and -
3.23 The plaintiff recollects that the first defendant, Dr Sandhu, was standing over her as a nurse was attempting to place a mask on her face:
He said to `Do you want to go out to it Jennifer?; which he repeated a few times.
Q. And did you say anything in response to this? A. I said to him `Well its too late. I'm going to pass out'.
Q. And then what happened to you? A. Well that's what happened. I was passing in and out of consciousness."
3.24 The plaintiff later described her experience following the incision.
Q. Now over the period of time between the operation restarting and your son being delivered, what were you like on the table? A. Oh squirming around a considerable amount, moaning and - it was more like after the initial scream it was moan because they were trying to put this mask and I was trying to get it off and there was so much going on it was just like Pitt Street in the operating theatre."
17 In this evidence the plaintiff referred to "excruciating pain". She said she was not tested in any way, shape or form to see if she was feeling anything. She referred to "unbelievable pain". She said again "the pain was just unbelievable. I was squirming you know back and forth". She described herself as "passing in and out of consciousness", "squirming around a considerable amount, moaning and - it was more like after the initial scream it was moan".
18 After the baby was delivered the plaintiff recalled waking in her room with a severe migraine headache. The plaintiff said that she reported to her mother that the epidural did not work and they had to keep going because the alarms went off on the machines and they could not stop and she felt it all. After her release from hospital, some six days after the birth, she did not contact either the hospital or Dr Gudgeon. Neither Dr Gudgeon nor Dr Sandhu visited the plaintiff after the operation.
19 The trial Judge quoted this passage about complaint from the plaintiff's cross-examination:
"Q. And why is that you didn't complain to anybody on the hospital staff? A. Well you don't complain to doctors about other doctors. They are, you know, that's how I feel personally.
Q. Why do you say that? A. I just felt I'd prejudice my care at the hospital.
Q. Well what about the nursing staff, you didn't complain to any of them did you? A. Well I'm not a gossip monger.
Q. You were in hospital for a further, what, six days after the birth? A. Yes but I can't remember the exact days but yes. I don't say that I didn't mention it to a nurse but I couldn't tell you specifically that I made a formal complaint, no I didn't."
20 In August 1992 the plaintiff saw a plastic surgeon, Dr Geoffrey Lyons. She said this was in relation to plastic surgery on her scar. In her words it "makes me ill to touch it or have anybody touch it." However in cross-examination about this consultation she admitted that apart from the removal of the scar she was also consulting the doctor about muscle separation in the abdomen, a problem which did not arise out of the caesarean section. She agreed that the letter of referral from her general practitioner to Dr Lyons said nothing about scarring but rather separated muscles and stretch marks. About her scar she said:
"I still don't like it to be touched. It's not it's sensitive or anything, it just makes me nauseous."
21 She complained of depression and psychological difficulties in 1992 and 1993 but explained the cause as follows:
"A. I didn't actually - my GP prescribed my anti-depressants and that, the marriage was bad, you know financially he was ruining us.
Q. You are talking about Dale? A. Yes, sorry.
Q. And - your husband and were there problems with him drinking over that period of time. A. Oh very much so yes.
Q. And in about February 1994 you went to see Lifecare and had some counselling with your husband did you? A. February 1994? With him?
Q. Or by yourself? A. Lifecare yes I did yes yes.
Q. And you broke up with your husband in October 1994, is that right? A. Yes."
22 Dale Prescott-Smith gave evidence on 17 October 1997 and again on 20 April 1998. He did not witness the administration of the EDB to the plaintiff. He said he was gowned and waiting in a separate waiting room as his then wife was undergoing preparation for the caesarean section. He said he was called to the operating theatre when he heard screaming. When he went in he saw "Jenny screaming, moaning, pale". Asked on 17 October 1997 where he was at that stage he said "at her feet". He said he was in the theatre for approximately ten minutes. He went to the end of the table, where her head was, to hold her hand. He said a nurse, at the other end they had started from, was "holding Jennifer's legs down". Asked about the continuation of the operation he said: "There was no continuation until the anaesthetist had re-put the shunt in. I don't know how long that would have taken". Asked if he saw any movements by the plaintiff on the operating table he said: "Yes. Shaking."
23 The trial Judge observed that the plaintiff's husband exhibited combativeness on cross-examination. Asked how long the screaming went on for he said: "A short time. ..... Less than a minute."
24 By contrast on 20 April 1998, when the plaintiff's former husband gave further evidence he said that on entering the operating room he walked to the side of the operating table on his wife's right-hand side. It was put to him that he was mistaken but he said he was quite certain and that he remained in that position for the entire operation. Asked about his previous evidence that when he entered the operating theatre he was down at his wife's feet he said: "I could have been there at the beginning, yes." He said that Dr Gudgeon was at the head of the table and Dr Sandhu on the left hand side of the table in the middle. He conceded he could be mistaken. Later in cross-examination, he said that he was directed by a nurse to stand at his wife's feet. He did not recollect alarms. While his wife was being held by the legs and by the arms the surgeon was waiting. It was put to him:
"Q You don't suggest he was cutting your wife while she was being held do you?" A. "No.
Q. If it were suggested that she was being held down whilst he continued to cut her, that would be incorrect wouldn't it? A. That's right, yes."
25 The last time Dr Sara, one of the plaintiff's expert witnesses, had performed the role of an anaesthetist in an obstetrics procedure was 1986. He practised mainly in the area of urology, head and neck surgery and orthopaedics. He administered very few epidurals in relation to obstetric procedures. He had retired from practice in about 1994. The trial Judge said that Dr Sara's only criticism of the performance of Dr Sandhu was that he either did not test or he inadequately tested the efficacy of the epidural.
26 Dr Lovell, the plaintiff's other expert witness, had met the plaintiff only once in October 1996 for one and a half hours. He relied on that consultation and documentation her solicitors forwarded to him for the purposes of preparing two medical reports. Dr Lovell reported that in the plaintiff's opinion, her reluctance to have her scar touched interfered with her sexual relationship. Though he made no mention of it in his report, Dr Lovell conceded that he understood that the plaintiff could have tactile contact, body to body, without any problems in the scar area. Dr Lovell suggested that the plaintiff had anxiety symptoms but not that she met the criteria of a post-traumatic stress disorder. Though he said that she needed ongoing treatment, he had made no comment about that in his report. Nor had he recommended medication.
27 Dr Sandhu gave evidence over four days. Trained in England he was admitted to the Royal College of Anaesthetists in about 1980. He had worked in various hospitals in New South Wales and at Fairfield Hospital between 1982 and 1994 and with Dr Gudgeon from 1988 to 1994. He had administered more than two thousand epidural blocks, 50 to 60 per cent of them in conjunction with caesarean sections. He gave evidence about the position on the spine where he preferred to insert the needle in the administration of the EDB and his practice as to the extent that he passed the catheter past the tip of the needle which was inserted into the epidural space. The trial Judge said:
"7.7 Dr Sandhu admitted to having no specific recollection of the administration of the EDB to the plaintiff nor the course of the operation. He gave evidence of his usual practice which was to test the efficacy of the EDB in a number of ways which included asking the patient to lift a limb. Dr Sandhu explained that he avoided testing obviously so as to avoid eliciting a response from the patient to the test as a patient unaware of the carrying out of a testing procedure is less likely [to] give an unreliable response.
7.8 The time of onset of full anaesthesia after administration was placed by Dr Sandhu between 10 and 20 minutes. Dr Sandhu's evidence was that while he could not remember this particular incident, it was his practice to administer the anaesthesia gradually testing for efficacy throughout this period of administration.
7.9 The first defendant strongly disagrees with the plaintiff's evidence that he failed to test the efficacy of the EDB prior to the commencement of the operation. His evidence was that he administered the EDB at least in part, leaving the plaintiff on the trolley in the care of the anaesthetic nurse and went into the adjacent operating theatre to check and set up the anaesthetic equipment including blood-pressure monitor and heart rate monitor. He returned some moments later and, in his opinion, satisfied as to the EDB, directed the patient to be wheeled to the operating table. There she was moved onto the operating table. The doctor gave evidence that it was his usual practice to observe the efficacy of the anaesthesia by asking the patient to move themselves [sic] to the operating table from the bed trolley. This allowed him the opportunity to view the capacity of the patient to control their [sic] limbs.
7.10 The anaesthetist does not remember the operation. On examination of exhibit 13 which was a print-out of the blood-pressure and pulse rate monitors, the print-outs showed that at 8.31 the blood-pressure was 104/64 with a pulse rate of 82. At 8.32 the blood-pressure dropped to 66/26 with a pulse rate of 52. At 8.33, 8.34, 8.35 and 8.36, the monitors record firstly `motion artefact' then unable to OBT, then at 8.36 `retry' then at 8.37 a blood-pressure of 119/55 and a pulse rate of 90 a further reading of `retry' and thereafter the machine continued to record somewhat elevated blood-pressure and pulse rate. Dr Sandhu constructed from the print-out that the very rapid decline in blood-pressure and pulse rate between 8.31 and 8.32 was a well recognised sign of the completion of the anaesthesia by the EDB. However, the degree of drop was such that he intervened to administer drugs to stabilise the blood-pressure and pulse rate."
28 Like Dr Sandhu, Dr Gudgeon had no recollection of the operation on 26 March 1992. From medical reports produced to him he was able to recall to some extent what occurred during the consultations before the operation. The trial Judge said:
"8.3 .....The doctor explains his recollection by the notation made by clinic staff prior to his first consultation with the plaintiff and his discussions with her revealed what he considered to be a most unusual medical history in relation to prior pregnancies, being two face presentations followed by post-partum haemorrhage in each case. Dr Gudgeon could not recall such a medical history before in his practice over two decades. In his second consultation on the 2nd March 1992, he notes that the `patient requests a caesarean section'. Dr Gudgeon says that he counselled against the procedure and ordered an x-ray for the plaintiff to determine the position of the baby. He believed he ordered an ultrasound at the same time but no record of this appears in the observations."
29 On 9 March 1992, a week later, the plaintiff again attended Dr Gudgeon. According to the file note she requested lower surgical section at 38-39 weeks. A notation on 23 March 1992 indicated that she requested an epidural anaesthetic. Dr Gudgeon could not remember discussing with her the alternative methods of carrying out the caesarean section by either mid-line or transverse incision. He explained the choice of a mid-line incision as being because the plaintiff had given a history of troublesome prior births. A mid-line incision gave the surgeon the opportunity to extend the opening to give more working space as opposed to the "bikini line" incision which was limited in the access that could be obtained to the foetus. Dr Gudgeon's opinion was that there was the possibility of soft tissue blockage or abnormal blood vessels or some other unexpected problem which could be more easily accommodated by way of a mid-line incision. There was no difference in the residual scarring from either of the two incisions.
30 The trial Judge said:
"When asked why he could not recall this particular operation, Dr Gudgeon said that he recollected those operations where there were major problems with a patient such as massive bleeding or the delivery of a dead foetus. In the event of an emergency, hospital protocol required the completion of an incident report which could be filed by any member of the team including nursing staff. Dr Gudgeon agreed that no incident report had been filed by anyone in respect of this operation."
31 Dr Gudgeon was not concerned as to the time of the administration of the anaesthetic. That was a matter for the anaesthetist. He agreed that the plaintiff was first on the day's operating schedule and that the time of commencement of the operation list was variable and did not always accord with the recommended starting time of 8 o'clock. He confirmed the procedure in relation to the transfer of the patient from the anaesthetic side room into the operating theatre and the placement of the patient on the operating table. "At that time the patient is connected to the monitors, the screen is set up, the patient is draped with plastic and sterile sheets and the site of the operation is swabbed at least twice." Dr Gudgeon confirmed the evidence of the plaintiff that a screen was placed across her body so she was unable to see below her mid-line at the site of the operation. He confirmed that it was the usual practice to place a block under the patient's hip to take the pressure of the baby off the patient's back. According to Dr Gudgeon, the surgeon and the scrub-nurse were the only two sterilised personnel in the theatre. The surgeon would confirm with the anaesthetist that the operation was ready to start. Dr Gudgeon did not recollect the operation but gave evidence that his usual practice was to check the site of the operation by using artery forceps and squeezing from the commencement of the point of incision to the end of the point of incision, in this case from the umbilicus to the pubic area, squeezing at four or five places.
32 The trial Judge summarised the evidence of the stages of the operation as follows:
"8.11 Thereafter, the surgical practice in relation to carrying out a mid-line caesarean section was to first excise the skin, navel to pubic area, to a depth of two millimetres. On the completion of the excision, Dr Gudgeon was quite confident that the operation at this point could be easily delayed. Bleeding could be controlled by the placement of a pack on the incision and the application of pressure. The patient could be held at this point for a considerable time at least up to one half hour.
8.12 The next step in the procedure was excision through the fat layer, the depth of which varies depending on the patient. The excision below the initial skin area can be done in more than one movement as there are not the cosmetic concerns with the sub-skin. At the completion of this incision the doctor again said that the operation could be delayed with bleeding arrested in the same fashion as in the first step.
8.13 Following the incision of the fat layer, the muscle layer, or fascia, was incised. From the surgeon's perspective this was the hardest layer through which to cut. The incision started in the middle and worked out to either end of the cut. The initial cut was made with a scalpel and the opening continued by use of scissors. This procedure took three to five minutes. Again, according to Dr Gudgeon, the operation could be stopped at this stage with the same procedures for staunching blood loss as in the early stages.
8.14 The next stage of the operation was incising the peritoneum, being a thin layer of membrane covering the abdominal cavity. The incision here again was made in the middle of the opening and extended with scissors, using a fresh scalpel. Again, the operation could be stopped at this point with minimal bleeding for as long as was wanted. This section of the operation took up to five minutes.
8.15 As with previous steps in the operation up to this point, the doctor when asked would he continue to operate if the patient was moving emphatically replied that he would not. His evidence was that he would stop because it was dangerous to the patient at any time throughout the operation with the risk of perforation of bowel, bladder or major blood vessels, which would have an extreme effect on the patient.
8.16 The next and fifth step of the incision was dealing with a layer which, amongst other things, covered the bladder. By the end of this step the operation had taken approximately 7 minutes. The sixth step was the incision of the lower uterus and took only minimal time, about 30 seconds. From here the final step was the location of the baby's head and its delivery. The baby is handed to the mid-wife and the surgeon then proceeds to deliver the placenta.
8.17 Thereafter the anaesthetist administers drugs to cause a contraction of the uterus. The surgeon then checks to ensure the uterus is clear of any placental matter and the cervix is checked to ensure vaginal draining. The various layers of the incision are sown to close them. Closure takes longer than the incision and can range from 20 minutes to 1.5 hours in complicated matters."
33 In Dr Gudgeon' opinion, the noted length of the procedure from 8.37 am to 9.06 am was about average for a mid-line caesarean section and that the blood loss noted in the procedure was less than average. He was not aware that there were any cuts to the infant's head and said that this was not common in the procedure although it had happened to him in the past.
"8.19 ...the plaintiff's allegations were put to Dr Gudgeon, in particular that, in spite of her protests that she could feel the incision, he continued with the procedure after the short halt. Also put to Dr Gudgeon were the plaintiff's allegations continued with the assertion that throughout the operation she lapsed in and out of consciousness and while conscious was squirming and wriggling on the table. He said: `I have never operated on any patient where that has occurred.' Dr Gudgeon said if such an event had taken place he would have most surely have remembered it as it was extremely unusual. He was emphatic that should the patient be moving on the table, he would not continue with incising the wound, due to the grave risk of damage to the patient's organs as well as the foetus. ....he denied that he was particularly late for the operation nor in a hurry. Dr Gudgeon was certain that he would not commence an operating procedure without testing for the efficacy of the anaesthetic.
8.20 He stated that he could not recall any caesarean procedure where he said words to the effect `we've got to stop' or later the words `we can't wait'. It is Dr Gudgeon's evidence in summary that it was not possible to operate on a moving patient as the procedure was in the doctor's words `totally uncontrolled' and the risk of damage being `unimaginable'. The doctor was asked whether this patient had suffered any unintended damage in the operation to which he replied `no'.
8.21 In Dr Gudgeon's opinion the operation was a routine caesarean section.
8.22 After the operation the doctor did not receive any approach or complaint either, directly or indirectly, from the patient until he received a demand from the plaintiff's solicitors.
8.23 In cross-examination, Dr Gudgeon admitted that he may not have explained the alternative of the `bikini line' to the mid-line incision but stated that he would have given the patient a full explanation of the caesarean section. He agreed that in 1992 the majority of caesarean sections took place by way of the transversal `bikini line' incision.
8.24 It would not have been his practice to discuss details of the EDB with the patient as this was a matter for the anaesthetist. Since 1992 in Dr Gudgeon's practice, between 5 - 10% [of caesarean sections] took place by way of longitudinal incisions. Counsel in cross-examination pointed to the discrepancies between the number of tests carried out by Dr Gudgeon in his oral evidence at 4-5 applications of the artery forceps to the site of the incision with the interrogatories of 8 August 1997, describing the number of tests as `several'."
34 The plaintiff alleged that both doctors failed to test the efficacy of the EDB anaesthetic. The trial Judge said the plaintiff was quite determined in her evidence that neither doctor to her knowledge carried out any testing procedures. The evidence of both doctors was to the contrary. However, as neither they nor the nurse witnesses had a specific recollection of the operation, the defendants' evidence was based on usual practice. The usual practice, confirmed by both the plaintiff's and the defendants' expert witnesses, was that the anaesthetists and surgeons test for the efficacy of anaesthesia in a variety of ways. It was accepted that a patient may not be aware of testing being carried out. His Honour observed that to accept the plaintiff's complaints the court had to accept that the defendants deviated from normal and proper practice. However, even if that practice were observed, it was possible that segments of the anaesthetised area could be missed. The direct consequences would lead to the continued incision of the plaintiff under conditions of great pain. His Honour observed that such circumstances had occurred in the past and was referred to the decision of Hidden J in Tucker v Hospital Corporation Australia Pty Ltd (unreported) 18 February 1999.
35 The defendants called four nurses; Sister Caroline McAuley, who acted as mid-wife in the surgical team; Sister Marie Gennaoui, who acted as scrub-nurse and, because Dr Gudgeon did not have an assistant surgeon, as his assistant; Sister Recto-Cavanagh, the anaesthetic nurse, and Sister Angela Ang, the scout-nurse.
36 None had any independent recollection of the specific operation. However, they were able to give evidence that they were present from various notes. Sister McAuley was able to say from notes that after the plaintiff's return to the ward she administered a paracetamol drug at about 10.15 am on the date of the operation and approximately an hour later administered intravenously a strong pain-killing drug, Omnipon. In her opinion, Omnipon was administered to reduce the abdominal pain at the site of the operation. Sister McAuley did not note any complaint by the plaintiff though she agreed that she would not necessarily write down everything a patient told her.
37 Sister Gennaoui had qualified in 1980 and worked in Fairfield Hospital between 1989 and 1996. Her duties included that of theatre sister. She had experience as a theatre sister with caesarean sections under EDB . Her duties included setting up the instruments and materials and transferring these from a mobile cupboard to a small mobile table on a rolling base which sat over the patient and was called a "mayo" table. According to her normal practice she would have placed the mayo table over the knees of the patient. She gave evidence about the usual procedure of draping the patient first with a sterile plastic sheet and then sterile cotton drapes going over the patient top to bottom and side to side. She thought the draping was done by her and Dr Gudgeon. The drapes were kept in place by clips. If, during the operation, the drapes were moved around sufficiently to prejudice their sterile state the operation would be halted while re-draping took place.
38 Sister Gennaoui's evidence was that the usual length of the caesarean section from incision to delivery of baby accorded with the evidence given by Dr Gudgeon. She had no recollection of being at an operation when a patient exhibited the behaviour alleged by the plaintiff of feeling pain, squirming on the table and having the surgeon continue to perform the caesarean section. Specifically she had no recollection of ever seeing a patient held down and a surgeon continuing to operate. Counsel for the plaintiff cross-examined her about the placement of the mayo table below the knees and towards the plaintiff's ankles. Sister Gennaoui maintained her position that as Dr Gudgeon did not have an assistant surgeon, the mayo table would have been placed close to the site of the operation and over the plaintiff's knees. It was put to her that she came to the case in support of the two defendant doctors. She denied this stating that her primary concern was the welfare of the patient and referred to an occasion when she had filed an incident report in respect of a doctor's treatment of a patient which had the result of her being unable to work with that doctor in surgery.
39 Sister Recto-Cavanagh said that if such an incident as that alleged had occurred she would have filed an incident report. She also gave evidence that Sister Delos-Reyes had left Australia to live on the east coast of America six years previously though she had seen her upon her return to Australia to attend her mother's funeral. To her knowledge the nurse remained resident in the United States of America. The trial Judge said that he was satisfied that there was sufficient and proper explanation of her failure to give evidence to avoid drawing any inference by the application of Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298.
40 Sister Ang said there was a clear restriction on the areas into which a visitor might move because of the risk of infecting the sterile areas. Her evidence of the usual placement of a visitor in the theatre contradicted the evidence of Dale Prescott-Smith. Sister Ang had not witnessed incidents described in the allegations of the plaintiff. It was her opinion that if such an incident had occurred there was a risk of contamination to the drapes and instruments which would require re-draping and dispensing of more instruments.
41 The first defendant called a specialist anaesthetist, Professor Ross Holland. He conceded that an obstetrician could be expected to tell a patient that in respect of a caesarean section the surgery would be either a vertical incision or a transversal "bikini line" incision. However, he qualified that opinion by saying that he was a specialist anaesthetist and not a specialist obstetrician. The trial Judge said of Professor Holland:
"He remained firm, however, in spite of rigorous cross-examination, that hypotension, being the rapid drop in blood-pressure and pulse rate, was a strong indicator of the success of an EDB with the sensory block coming into effect no more than five minutes after the incidence of hypotension. He disagreed that the incident recorded on the blood-pressure monitor readout was a vaso-vagal event rather than hypotension induced by the EDB."
42 The second defendant called Dr John Colin Pennington as an expert obstetrician and gynaecologist. He confirmed that he considered three doses of Ephedrine administered by Dr Sandhu as suggesting that the epidural was very effective in achieving anaesthesia. Dr Pennington agreed that a lower abdominal transverse incision was a recognised method of carrying out a caesarean section but said that where an obstetrician might have reason to believe a complication could occur during the section due to previous history, access to the child in the womb was more accessible where the caesarean took place by way of a mid-line incision.
43 The trial Judge referred to the blood pressure monitoring and timing and said that the parties had found common ground in the interpretation of the read-outs of the machine in the period 0833 to 0837 as indicative of an incident. However, their explanations for this differed. His Honour described the print-out as follows:
"13.1 The print-out tape of the blood pressure monitor is the most reliable record of the timing associated with the operative procedure bearing on it the date of the chart and timing between 0829 and 0901. The print-out records on a minute cycle systolic blood-pressure, diastolic blood pressure and heart rate. The timing commences at 0829 and records a drop in systolic blood pressure over the following three minutes at 123, 110 and 104, and at the same time a relatively stable diastolic reading and a fluctuating heart rate. At 0832 there is a large drop from 104 to 66 systolic with the diastolic reading dropping from 64 to 26.
13.2 In the period 0833 to 0837 the monitor does not record either systolic or diastolic blood pressure readings while the heart rate drops from 109 at 0832 to 60 at 0833 which remains relatively constant for a minute until 0835 where the heart rate jumps from 56 to 156 and then thereafter maintains a more constant heart rate."
44 His Honour said:
"13.4 Dr Sandhu, the first defendant, and Dr Ross Holland, Dr Sandhu's expert anaesthetist, interpret these readings as an indication of the onset of full anaesthesia due to the administration of the EDB. While the literature gave varying percentages of the condition hypotension, being the rapid decrease in blood pressure, the first defendant's evidence was that hypotension occurs in anywhere between 15 - 30% of patients to whom an EDB is administered. Counsel for the plaintiff put to Dr Holland that an alternative explanation for the disturbances recorded by the blood pressure monitor could be the onset of severe pain alleged to be experienced by the plaintiff upon incision. Dr Holland rejects this as an explanation of the incident recorded.
13.5 It was the evidence of Professor Holland that the occurrence of hypotension in these circumstances is a common and recognisable condition associated with the onset of this type of anaesthesia."
45 According to his Honour, the evidence given by the defendants and the nursing staff suggested that the regime for the recording of various steps in the operative procedure was not very strict. His Honour said:
"14.4 The lack of notation of the first introduction of the EDB to the patient is unhelpful in calculating the period between administration and commencement of the operation. The first defendant believes that administration of the EDB commenced about 0811. The argument by the plaintiff is, however, that administration took place at 0827 and the operation commenced 10 minutes later. Such a timetable, however, does not explain firstly that such a short period makes no allowance for more than one application of the EDB.
14.5 The plaintiff's version of events prior to the operation put the meeting between Dr Sandhu and the plaintiff at a time 10-15 minutes after the plaintiff was placed in the anaesthetic room adjacent to the operating theatre... The plaintiff places her departure from the ward in these terms `we left the room approximately 07.30 in the morning'.... There is no direct evidence of the time taken to transport the plaintiff from her room to the anaesthetic room. The plaintiff's room, however, was located in the same building. To adopt, in full, the plaintiff's version of timing which would put the administration of the EDB at 0827, places the plaintiff's arrival at the anaesthetic room after 0800. The plaintiff was asked as follows...:
Q. And when you arrived there do you recall what time that was? A. The time that elapsed between wheeling me down from my room down to the operating theatre.
Q. Approximately how long after - withdraw that. Are you able to say at approximately what time that was? A. Oh hard to approximate. About 10-15 minutes after I arrived down there."
14.5 There is no evidence as to the distance between the room and the anaesthetic room but the plaintiff has not accounted for what is a considerable and important period of time between leaving the ward and arriving at the preparation room."
46 The trial Judge referred to the separate grounds of negligence pleaded and stated their effect in general terms. Under the heading "Liability and Findings" he continued:
"15.1 The plaintiff pleaded nineteen separate grounds of negligence against the first defendant, Dr Sandhu, anaesthetist and eighteen grounds against the second defendant, Dr Gudgeon, surgeon. Broadly, the allegations of negligence will relate against each doctor to the failure by the doctor to carry out procedures properly, failure to advise the patient of the risks of the treatments and failure to advise the patient following the negligent carrying out of procedures.
15.2 The plaintiff's allegations in respect of the treatment at the hands of the two defendants during the administration of the anaesthetic and the subsequent operation are most serious. If proven, the allegations run further than simply establish an action of negligence against each defendant.
15.3 The plaintiff contends that the epidural block administered to her by the first defendant did not work and was not tested by the anaesthetist or the surgeon for efficacy, prior to the commencement of surgery. The plaintiff says that when she registered pain upon the incision of her stomach, she was held down by medical staff and the surgery continued after a short delay. The short delay was caused, on her evidence, by the sounding of alarm monitors attached to her. In spite of her protestations, she says, she was held down and the caesarean section was undertaken upon her whilst she experienced high levels of pain and lapsed in and out of consciousness.
15.4 The first defendant, Dr Sandhu, acknowledges that the monitors did register an incident, according to the hospital records, particularly the print-out of the monitors. He did not recollect the specific incident, but on reading the print-out [Exhibit 13] he found that the information indicated a rapid decrease in the plaintiff's blood pressure, which is a recognised indicator of the onset of effectiveness of an EDB. This evidence was supported by the expert witness, Dr Holland.
15.5 In answer to the plaintiff's serious allegations, the defendants and all their nurse witnesses gave consistent evidence. The evidence in each case was that the witness had no recollection of an operation proceedings in the manner outlined by the plaintiff. Each witness considered that the incident described would have been most unusual. Nursing witnesses gave evidence of reporting protocols in place at the hospital at the time, which would require the recording in hospital records of any incident of the type complained of by the plaintiff. No record of such an incident was located in the hospital records.
The plaintiff's evidence relied on her version of events supported by evidence given by her former husband Dale Prescott-Smith. Mr Prescott-Smith's evidence did not convincingly support his former wife's evidence. He gave evidence of moving about in the operating theatre from positions at the foot of the operating table to the side of the operating table and the head of the operating table. He agreed that he was not present throughout the whole of the operation. His evidence was unconvincing in respect of the apparent freedom of movement he apparently had around the operating table in areas which were sterile and reserved for medical staff. He conceded that he had discussed the events with his former wife. He was a combative and unconvincing witness.
15.5 [sic] The plaintiff concedes in her evidence that she did not complain to her treating doctors in the hospital of the alleged maltreatment of her after her operation and whilst she remained an in-patient in the hospital for several days. Neither did she complain to the doctors at the hospital after she left their care. She conceded a history of a very difficult marriage, having to cope with an alcoholic husband who lied to her and stole, and children who suffered from attention deficit disorders, which added to her burdens. She has sought marriage counselling and, for a time, medication to cope with her problems."
47 In emphasising the seriousness of the plaintiff's allegations, his Honour may have had in mind the following dictum from Dixon J's judgment in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 362:
"But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters `reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency."
48 The plaintiff's allegations against the defendants were that they took part in performing an operation on her when, in her own words, she had screamed out her complaint of excruciating pain and was moaning and squirming on the operating table so that, in Dr Gudgeon's opinion, to continue incising the wound gave rise to great risk of damage to her organs as well as to the foetus. Those are indeed serious allegations requiring the fact finder to be mindful of the considerations Dixon J mentioned.
49 The trial Judge went on to say that the plaintiff, in seeking to prove her allegations of negligence, was faced with contradictory evidence which included the following:
" - her husband's contradictory versions of his position in the operating theatre around the table;
- his version of his wife's screaming and disposition on the operating table, contrary to her version, especially as to time and the carrying out of the incision;
- the absence in the Hospital Records of any indication of an incident;
- the absence in the Hospital Records of secondary evidence which may have indicated an event described by the plaintiff such as the issue of a second set of drapes and medical instruments;
- the duration of the operation which tended to preclude a serious incident of the nature described;
- the delivery of a healthy child within a reasonable time from the commencement of the operation;
- the absence of any serious physical injury to the plaintiff, having regard to the extreme nature of the operation, as alleged by her;
- the failure by the patient to register a complaint whilst at Hospital or, after leaving the Hospital."
50 His Honour finished this part of his reasons for judgment as follows:
"15.7 I do not find that the plaintiff has deliberately reconstructed the events, the subject of this claim, to suit her own purpose. However, her version of the administration of the EDB and the subsequent operation is contrary to the weight of evidence. On her own evidence, she lapsed in and out of consciousness and was in a heightened state of anxiety.
15.8 Counsel for the plaintiff strongly argued that the sequence of events described by the plaintiff were entirely possible and had occurred in the recent past. Counsel cited the case of Tucker v Hospital Corporation Australia Pty Limited .... However, the fact that such an incident, regrettable though it is, has taken place is not proof that in this case the plaintiff's complaints are proved.
15.9 In summary, I am unable to accept that the plaintiff has proved her case on the balance of probabilities that the EDB failed to work and that the operation continued while she experienced great pain and contrary to her protestations.
15.10. Turning to the subsequent grounds of negligence, the plaintiff cannot succeed in respect of failure to warn of the availability of counselling in respect of either defendant, as she has not proved the primary grounds of negligence."
51 As will be seen from the last two paragraphs, the trial Judge did not accept that the EDB failed to work and that the operation continued while the plaintiff experienced great pain and contrary to her protestations. Logically, this meant that the case based on a failure to warn on the availability of counselling failed.
52 Next, his Honour turned to consider the claim based on failure to warn. First, he dealt with the case against Dr Sandhu. He referred to Dr Sandhu's evidence that he did explain to the plaintiff that should the EDB prove ineffective, she could submit to general anaesthetic. He said:
"I had earlier found that the plaintiff has not proved that she experienced high and continued levels of pain due to the negligence of either the first or the second defendant in failing to test the efficacy of the EDB."
The trial Judge continued:
"16.2 The plaintiff gave evidence that she had undergone EDB anaesthetics in the past and, indeed, it was her specific choice that she should have administered to her an EDB. She chose this type of anaesthetic as she wished to be conscious during the birth of her child. On the evidence the plaintiff was well aware the use and effects of an EDB and was warned of the risks involved and the alternative of a general anaesthetic. The use of the EDB procedure was the choice of the plaintiff, which was made well prior to the date of the operation and with a well considered outcome in her mind. I am satisfied on the evidence that Dr Sandhu gave the plaintiff adequate warning as to the risks of the EDB and alternative treatments."
53 Next, his Honour came to the case against Dr Gudgeon that he had failed to advise the plaintiff that she required longitudinal abdominal incision. The evidence was uncontradicted that the plaintiff chose a caesarean section and advised Dr Gudgeon of this. The choice of caesarean section was hers. Dr Gudgeon recommended to her that she should not seek caesarean section in view of the complicated history she had given relating to the two previous births. He recommended a vaginal delivery. "The plaintiff, was however determined for reasons she gave in evidence, to seek a caesarean section with an EDB, in spite of the professional recommendation to reconsider." His Honour said:
16.5 The plaintiff couches her complaint in respect of a failure to warn, specifically as a failure to warn that she would undergo a caesarean section by a longitudinal abdominal incision, rather than a horizontal or `bikini line' incision.
16.6 The second defendant concedes that he did not specifically discuss with the plaintiff that he would choose a longitudinal rather than horizontal incision. He gave evidence that he made a choice of a longitudinal incision because of the plaintiff's self history of complicated labours and the fact that the longitudinal incision would allow access to the child in the event that complications arose in the surgery."
54 Next, the trial Judge quoted from Mason P's judgment in O'Brien v Wheeler (unreported) NSWCA 23 May 1997 to the effect that a plaintiff must prove, on a subjective basis, that he (or she) would not have undertaken the particular treatment or procedure had the appropriate warnings been given. He also quoted from Samuels JA's judgment in Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 at 581 setting out what evidence will assist the court in endeavouring to ascertain what a plaintiff's response would have been to adequate information had it been conveyed at the appropriate time. Based on that decision, and the evidence presented by the plaintiff, his Honour said:
"16.9 .....I am not persuaded that the plaintiff would have chosen not to proceed with the caesarean section in this matter, had the choice between the longitudinal incision and the horizontal incision been put to her.
16.10 In any case, as observed by his Honour Mason P in O'Brien v Wheeler, `In every negligence case a plaintiff must prove that the damage suffered was caused by the negligent act or omission of the defendant.'."
55 This left the trial Judge to deal with the alleged psychological damage due to her perception of the unsightly scar. Her claim included the allegation in the new particular of negligence (r) added at the trial against Dr Gudgeon, that, as it was put to us, if the plaintiff had been advised before or immediately after the operation, that she required a longitudinal abdominal incision "for medical reasons" she would have been saved the stress she subsequently suffered from not knowing that.
56 The trial Judge said:
"16.11 The plaintiff has sought to argue that this failure to warn led to a scarring which has caused her emotional distress and psychological trauma, due to her perception of the unsightly nature of the scarring. Medical evidence, however, does not suggest that the incision was other than properly performed or that the subsequent scarring was other than normal for such an incision. The plaintiff called upon the evidence of a psychiatrist, Dr Derek Lovell, who supplied a medical report and gave oral evidence. The evidence pointed to the scar becoming the source of psychological trauma to the plaintiff. However, in cross-examination on 15 October 1998 the plaintiff conceded that the primary reason for the referral to a plastic surgeon, Dr Lyons, was not for the treatment of her scar, but treatment of separated muscles and loose skin, commonly described as `stretch marks' which existed prior to her third pregnancy. Further, the history reported by the plaintiff to Dr Lovell, and upon which he based his medical opinion, omitted reference to what later became allegations by the plaintiff in this case, namely the incident in the operating theatre which set off monitor alarms. Her psychiatrist did not in any case find that she suffered from Post Traumatic Stress Syndrome. [Typographical repetition omitted] The Plaintiff certainly has experienced difficult times with an unreliable and alcoholic former husband and children who have experienced some form of learning disabilities. While regrettable, the plaintiff's difficulties cannot be attributed to the incidents of which she complains in this matter.
16.12 The plaintiff has failed to prove that she has suffered damage in respect of any alleged failure by the second defendant to advise her of the availability of a horizontal incision, as opposed to a longitudinal incision for the caesarean section."
57 Quite simply, his Honour was not persuaded that the plaintiff had proved psychological damage caused by the alleged failure to advise. On that basis, there was a verdict and judgment for the defendants. A matter to which I will return is whether the trial Judge considered only the psychological effect of the scar itself and failed to consider the psychological effect of the delay in advising that the longitudinal incision was made for medical reasons.
Appeal
58 The plaintiff filed a notice of appeal which contained twenty-four grounds many of which ignored the limited scope for appeal to this Court against findings of fact; see Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167 and Devries v Australian National Railways Commission (1993) 177 CLR 472. I have endeavoured to segregate into groups the grounds of appeal. Many have the appearance of an exercise being undertaken of going through the reasons for judgment and claiming that the trial Judge erred in making each contested finding of fact which was unfavourable to the plaintiff and failed to make or take into account findings seen as favourable to the plaintiff; see, for example grounds 2-4, 8, 20, 21 and 24. The grounds of appeal were supported by over forty pages of written submissions which I found to be both discursive and prolix.
59 Ground 1 was that the trial Judge erred in failing to make a finding as to whether the [first and second defendants or either of them] breached their duty of care in failing to test the effectiveness of the epidural. It is true to say that the trial Judge did not so express himself but he rejected the plaintiff's evidence that the EDB failed to work and that the operation continued while the plaintiff experienced great pain and contrary to her protestations. Accordingly, if there was failure to test the effectiveness of the epidural which amounted to a breach of duty, no damage to the plaintiff resulted.
60 Grounds 2, 3, 6, 7, 8 and 18 were that the trial Judge erred in failing to find or make a finding:
2. that the [first and second defendants or either of them] failed to test the effectiveness of the epidural;
3. that the [first and second defendants or either of them] carried out the operation whilst the epidural was ineffective;
6. as to whether the [second defendant] advised the [plaintiff] pre-operatively of having a longitudinal mid-line scar;
7. that the [second defendant] breached his duty of care in failing to advise the [plaintiff] pre-operatively that she would have a longitudinal mid-line scar;
8. that the [plaintiff] suffered damage as a result of the [second defendant] failing to advise the [plaintiff] that she would have a longitudinal mid-line scar;
18. that insufficient time elapsed from the time of the epidural up to the time of the operation.
Grounds 2, 3, and 18 went to the performance of the epidural, grounds 6-8 were about the second defendant's failure to advise that the plaintiff would have a longitudinal mid-line scar.
61 Ground 23 was that the trial Judge erred in failing to take into account a relevant consideration when dealing with the breach of duty by the [second defendant] in respect of failure to warn that the scar would be longitudinal, in that the damage caused by the failure was not whether the plaintiff would have a caesarean section or not but rather the effect of the delay of such advice.
62 Ground 6 is entirely mis-conceived. As the trial Judge noted, Dr Gudgeon conceded the point. Ground 7 is for like reason mis-conceived. Dr Gudgeon conceded that he failed to advise the plaintiff pre-operatively that she might have a longitudinal mid-line scar. The failure so to advise the plaintiff was said to amount to a breach of duty of care. The question, which is raised by ground 23, is whether the trial Judge said that he was not satisfied that the plaintiff had proved she suffered damage as a result of that alleged failure. Grounds 2, 3 and 18 can only arise if ground 24 is made good. Ground 24 was that the trial Judge erred in finding that the [plaintiff] failed to prove her case on the balance of probabilities that the EDB failed to work and that the operation continued while she experienced great pain and contrary to her protestations.
63 In the written submissions it is said that the trial Judge set out the reasons leading to the conclusion that the plaintiff failed to prove on the balance of probabilities that the EDB failed to work and that the operation continued while she experienced great pain and contrary to her protestations under the heading "15. Liability and Findings". After summarising this part of the judgment, the written submission continued: "It is submitted that the above findings upon which the trial judge based his decision on liability are contrary to the evidence or not of sufficient weight to base such a finding." In so far as such a submission means anything, it is bound to fail.
64 In Devries at 479 the majority stated:
"...that a finding of fact by a trial Judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact. If the trial Judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial Judge `has failed to use or has palpably misused his advantage' or has acted on evidence which was `inconsistent with facts incontrovertibly established by the evidence' or which was `glaringly improbable'."
65 It is ironic that two and a half pages of the written submissions contain copious and quite unnecessary quotations from standard authorities devoted to the "failure to state reasons". Despite the drafter of the notice of appeal setting out twenty-four separate grounds, none raised a failure to give adequate reasons as a ground of appeal.
66 As it was developed during oral argument, the substance of the plaintiff's complaint in grounds 8 and 23 was that the trial Judge failed to deal with the newly added particular (r). The point arose in the course of the plaintiff's cross-examination. The cross-examination was as follows:
"Q. Do you know why a mid-line incision was made? A. No I have no idea.
Q. If there was a good reason because of your particular anatomy, for making that sort of incision, would that influence the way you regarded it? A. I was never given a reason.
Q. No but I'm just saying now. I know you're not aware no, but if you learnt that there was a good reason because of your anatomy, or your previous medical history, that the incision had to be made in that way, had to be made in that way, in your best interests, would that influence the way you regarded it now? A. Probably not now. I would have liked to have known before the incision was made.
...
Q. You were going to have a scar somewhere on your abdomen? A. Yes.
Q. It's a question of where it was going to be? A. Yes.
Q. You feel annoyed and cranky that it's a scar that goes from in the mid-line and not across the bikini line? A. Yes it's a - yes, yes.
Q. But you might feel differently if you believed and understood that that was done in your best interests because of your previous birth history? A. Six years ago it would have helped me.
Q. And might it not help you now deal with that? A. Well it's a long time for an explanation to come.
Q. Yeah well I appreciate I'm just springing this on you as it were, but you might just like to consider it for a moment, or perhaps overnight you might like to consider it. Would it make a difference to you if there was a proper body of experts who say that the history you presented with a two face presentations with your two previous deliveries, both with complications, both with post partum haemorrhage, that it was imperative that you have an incision in the mid-line and not the bikini line? I just ask you to consider that whether that might affect the way you perceive the inconvenience of having that scar for the future? A. You'd like me to think about it.
Q. I'd just like you to think about it. I don't expect you to respond now? A. Okay."
67 The next day, the following further cross-examination took place:
"Q. Yesterday Mrs Gottaas [the plaintiff's name current at the date of trial] I was asking you some question about your scar, and I asked you to consider overnight if it was made clear to you, and you accepted it, that there was a valid clinical reason for the mid-line incision between your belly-button and down, straight down rather than a bikini line incision, not only a valid clinical reason but that that decision was made in the best interests of your health because of your previous clinical history, would that make any difference to how you perceived having to bear a mid-line scar rather than a bikini line scar? A. That's very--
Q. Have you given some thought to that? A. I've given a lot of thought. Not knowing what these reasons are, it's very hard to make a statement about it because I don't know, it wasn't discussed. I might have discussed other options, but I'm sort of flying in the dark here--"
68 The plaintiff was re-examined as follows:
"Q. Mr Gregg put to you a question, a long question about the reasons for a longitudinal scar and associated medical problems and risks to you and the baby. Do you remember that question a moment ago? A. Yes I do.
Q. At any stage prior to the caesarean section did Dr Gudgeon discuss those issues with you? A. No not at all.
Q. And when is the first time that you realised that there may have been an explanation for a longitudinal scar as has just been put to you by Mr Gregg? A. Now.
Q. And assuming that there was such an explanation for a longitudinal scar, withdraw that. From the time of the caesarean section until now had Dr Gudgeon ever told you the reason for a longitudinal scar as put to you in the question by Mr Gregg a moment ago? A. Had Dr Gudgeon ever told me?
Q. Yes. From then until now? A. No.
Q. Assuming that there was a medical reason as put to you by Mr Gregg in that question for a longitudinal scar, how does it make you feel that it is only now that you learn about that reason? A. Very angry.
Q. You were asked some questions about whether that would change the way you perceive the mid-line scar now or your attitude to it. Over the period of time from the time of the caesarean section up to now, has the position of the scar as being mid-line as opposed to bikini line caused you any concern or worry? A. Yes.
Q. What? A. Well I had no idea why I was cut that way. I always assumed that I would be cut bikini line. It was quite a shock to have that done that way.
Q. And over the period of time thinking that you had a longitudinal scar when you might have had a bikini line scar did that cause you any concern or worry or anxiety or depression or anything like that? A. It has as to not knowing why. You know, you just wake up with like a train track down the front of you whereas you expected a small incision in a bikini line and not knowing why or given any explanation, just like there, that's it. Yes it has.
....
Q. Well you say it has. How has it affected you over the period of time since the caesarean section up to now thinking that you could have had a bikini line scar and instead you had a longitudinal scar. How's that affected you over that period of time? A. Well I repeat, it's made me very angry. Now how can I explain it? I didn't expect it. I've had to live with it till then and my opinion of it, it was unnecessary and I don't like it. I can't put into words my feeling to it. It's, how to make comparison, without being too drastic. Angry would sum it up but I feel like all those years I felt like I've had it unnecessarily. It's like, to say an albatross around your neck would be a - angry and upset that I had it. That would be--."
69 After the plaintiff had finished giving evidence the particulars were amended without objection by adding paragraph (r).
70 In his reasons for judgment the trial Judge, in para 16.9, dealt with the plaintiff's case that she would have chosen not to proceed with the caesarean section had the choice between the longitudinal incision and the horizontal incision been put to her. In 16.11 his Honour came to her argument "that this failure to warn led to a scarring which has caused her emotional distress and psychological trauma, due to her perception of the unsightly nature of the scarring." His Honour referred to medical evidence that the incision had been properly performed and that subsequent scarring was normal. He referred to the evidence of Dr Lovell and said: "The evidence pointed to the scar becoming the source of psychological trauma to the plaintiff." This evidence his Honour discounted because of the reasons given for the referral to the plastic surgeon, Dr Lyons. In short, his assistance was not sought for treatment of the scar. Dr Lovell did not find that the plaintiff suffered from post-traumatic stress syndrome. After an erroneous repetition of part of what had already been said, para 16.11 concluded:
"The plaintiff certainly has experienced difficult times with an unreliable and alcoholic former husband, and children who have experienced some form of learning disabilities. While regrettable, the plaintiff's difficulties cannot be attributed to the incidents of which she complains in this matter."
Paragraph 16.12 followed:
"The plaintiff has failed to prove that she has suffered damage in respect of any alleged failure by the second defendant to advise her of the availability of a horizontal incision, as opposed to a longitudinal incision for the caesarean section."
71 Although para 16.12 is expressed more narrowly the last two sentences of para 16.11 cover the plaintiff's claim that she suffered damage as a result of Dr Gudgeon's failure to warn of the possibility that for medical reasons he would make a longitudinal incision. The finding must in part, at least, have been based on the trial Judge's view of the plaintiff's credibility. The challenge to it, accordingly, fails.
72 Grounds 4, 20 and 21 were that the trial Judge erred in finding:
4. that Mrs James and/or Mr Porter supplied short and inconclusive evidence;
20. that the plaintiff was well aware of the use and effects of an EDB and was warned of the risks involved and the alternative of a general anaesthetic;
21. that the [first defendant] gave the [plaintiff] adequate warning as to the risks of the EDB and alternative treatments;
73 I shall return to say something about ground 4. The trial Judge was not satisfied that the plaintiff had suffered any damage in respect of any alleged failure to advise or warn. That being so, grounds 20 and 21 do not assist the plaintiff. In any event, there was nothing advanced in argument to suggest that the findings complained of were not open to the trial Judge. In my opinion, all these grounds of appeal fail.
74 Grounds 5, 10, 11, 12, 13, 15, 16 and 17 were that the trial Judge erred in failing to take into account:
5. the evidence of Mrs James and/or Mr Parker;
10. a relevant consideration, that is the evidence of the [plaintiff's] screaming;
11. a relevant consideration, that is evidence contrary to the assertion that a drop in blood pressure indicated onset of full anaesthesia;
12. a relevant consideration, that is the evidence relating to a second set of drapes and medical instruments;
13. a relevant consideration, that is the evidence that the duration of the operation did not preclude a serious incident;
15. a relevant consideration, that is the evidence relating to the absence of an incident report concerning a cut to the head of the [plaintiff's] baby;
16. a relevant consideration, that is the evidence of lay witnesses concerning the [plaintiff's] evidence to them that she felt pain during the operation;
17. a relevant consideration, that is the evidence relating to the position of the [plaintiff's] husband during the operation;
75 There is nothing to suggest that the trial Judge did not take these matters into account. They are all dealt with in his judgment. See, for example, paras 3.1, 3.20, 4.2, 11.15, 13.4, 10.15, 8.48, 2.2, 10.13, 3.1, 4.1-4.12, and 10.22; compare Mifsud v Campbell (1991) 21 NSWLR 725 at 728. In any event, as Mahoney JA said in Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 at 271:
"the law does not require that a Judge make an express finding in respect of every fact leading to, or relevant to, his final conclusion of fact; nor is it necessary that he reason, and be seen to reason, from one fact to the next along the chain of reasoning to that conclusion."
76 The nub of ground 4 of the appeal claiming error in finding that Mrs James and Mr Porter supplied short and inconclusive evidence was said to be the failure of the trial Judge to set out their evidence or analyse it.
77 The plaintiff's evidence was that she told her mother that the epidural did not work and they had to keep going because the alarms went off on the machines and they could not stop and she felt it all. Her mother's evidence was that the plaintiff said: "Mum I felt everything". "I wasn't numb from the epidural, Mum". "They had to hold my legs down and I'm sure I passed out". Asked in chief:
"Q. Did she say anything to you at that time of that second visit as to what she felt at the time of the caesarean section? A. Well it was just bad, you know.
Q. Well what did she say to you about what she felt? A. She just said she felt everything.
Q. Did she say anything to you about the sensation of pain? A. I didn't ask her. I mean pain's pain.
Q. Did she refer to it when she was talking to you, pain? A. She just said it was terrible."
78 Mr Parker gave evidence that he visited the plaintiff in hospital after the birth. Relevantly he said:
"Q. Did Mrs, sorry-- A. I just asked how it happened, she said `that's not all, I felt everything'.
Q. Did you say anything then? A. I , well she asked me, I said `what do you mean' and she said `I felt the whole thing, I felt them cut me'.
Q. Did you then say anything? A. I said `you're joking', she was upset at the time and I said--
Q. When you say she was upset, did you observe anything about her? A. When she started to talk about it she's, I thought she was going to cry, so we changed the subject later.
Q. Did you say anything to her then? A. I said what are you going to do about it and she said `I don't know what to do', I said `I'd sue them'.
Q. How long were you in the hospital visiting her for? A. For the duration of visiting hours, probably an hour or two hours.
Q. Did you come back on any other occasions while she was in hospital? A. No, no we didn't."
79 In the context of the nature of the plaintiff's claim and the evidence she gave about it and of her failure to complain to the hospital, the trial Judge was justified in concluding that the two witnesses supplied short and inconclusive evidence.
80 In the course of oral argument, emphasis was placed upon the drop in blood pressure evidenced by the print-out of the blood pressure and pulse rate monitors which the trial Judge summarised in para 7.10. Dr Sandhu gave evidence that this was a well recognised sign of the completion of the anaesthesia by the EDB. He also gave evidence that he reacted by administering drugs to stabilise the blood pressure and pulse rate. Professor Holland, a specialist anaesthetist, supported Dr Sandhu's opinion. Counsel took us to an exhibit which was an extract from Harrisons Principles of Internal Medicine (1970) at 107, to the effect that a vasovagal or vasodepressor faint can occur inter alia "after injury to tissues as a consequence of some combination of shock, pain, and psychological factors." But this reference did no more than show that a drop in blood pressure could be due to pain. There was other acceptable evidence that it could have been due to the effectiveness of the epidural anaesthetic. As his Honour noted in 11.5, Professor Holland did not agree that this episode was a vasovagal event.
81 The plaintiff's written submissions suggested some inconsistencies in the evidence given by the nurses. But during his oral submissions, counsel accepted that he could not put that there was any conspiracy by the nurses not to tell the truth and had therefore the very difficult task of arguing that all four simply did not recall what on the plaintiff's case was an extraordinary series of events.
82 Ground 9 was that his Honour erred in failing to draw an inference based on Jones v Dunkel that Sister Delos-Reyes, who was not called, could not have given any evidence that would assist the defendants. This ground of appeal is without any merit at all. Even if available to be drawn, in the light of the evidence from both defendants and the four other nursing staff present, the inference would have been of no significance at all.
83 Ground 14 was that his Honour erred in failing to find for the appellant taking into account that his Honour did not find against her in respect of credit. He did not find she had deliberately reconstructed the events, the subject of her claim, to suit her own purpose. This ground of appeal is also without merit. Commonly trial judges are reluctant to suggest that a witness was lying. In the present case, quite clearly, the trial Judge did not believe the plaintiff's version of the administration of the EDB and the subsequent operation. It is absurd to suggest, as the ground of appeal implies, that he was bound to believe her and therefore accept her evidence.
84 Ground 19 was that his Honour erred in taking into account an irrelevant consideration, namely that if proven the allegations made by the [plaintiff] ran further than simply establishing an act of negligence against each [defendant]. This ground was directed to the trial Judge's comment about the seriousness of the plaintiff's allegations. The dictum I have quoted from Dixon J's judgment in Briginshaw demonstrates that this was not an irrelevant consideration.
85 Ground 22 was that his Honour erred in holding that for the appellant to establish a breach of duty owed to her by the second respondent in respect of failure to warn her that the scar would be longitudinal rather than horizontal, the plaintiff must prove that she would have undertaken the particular treatment. It is not clear to me what this ground of appeal means. Suffice it to say, that his Honour found that if there was a breach the plaintiff suffered no damage.
Conclusion
86 In my opinion, the trial Judge's critical finding was that he did not accept the plaintiff's version of what occurred at the time the EDB was administered and during the subsequent operation. That finding, as his Honour pointed out, disposed of the plaintiff's case that the EDB failed and that the operation continued while she experienced great pain and contrary to her protests. Similarly, it disposed of her case based on a failure to warn of the availability of counselling. All that was left was the case based upon the longitudinal scar. As to that his Honour did not accept that the plaintiff would have chosen not to proceed with the caesarean section had the choice between the longitudinal incision and the horizontal incision been put to her. Further, he did not accept that she had suffered emotional stress or psychological trauma due to her perception of the unsightly nature of the scar. The trial Judge said: "the plaintiff's difficulties cannot be attributed to the incidents of which she complained in this matter". These included the alleged failure by Dr Gudgeon to advise her that he might employ the longitudinal incision for medical reasons.
87 In my opinion, the appeal should be dismissed with costs.
88 FITZGERALD JA: I agree with the order proposed by Sheller JA and with his Honour's reasons. I propose to comment briefly in relation to only one matter.
89 The appellant's case had a number of elements, one of which was raised for the first time when a new particular of negligence (r) was added during the trial. The appellant's third child was born by caesarean mid-line section which left a longitudinal abdominal scar. The appellant alleged the scar caused her psychological trauma. According to her new particular (r), she would not have experienced that trauma if she had been made aware that the longitudinal incision which caused the scar was appropriate for medical reasons.
90 As Sheller JA has noted, the trial judge's findings do not expressly reject that separate element of the appellant's case. Further, the trial stopped short of finding that the appellant had "... deliberately reconstructed the events, the subject of this claim, to suit her own purpose."
91 However, on a fair reading of the trial judge's reasons, his Honour rejected the appellant's allegation that she suffered psychological damage as a result of the scar. That removed the foundation for the case mounted by the appellant by reference to particular (r).
92 IPP AJA: I agree with the reasons and order proposed by Sheller JA and the additional comments by Fitzgerald JA.
*****
LAST UPDATED: 14/03/2001
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