Cerutti v Forbes-Johnson [2004] NSWCA 49 (8 March 2004)

Last Updated: 9 March 2004

NEW SOUTH WALES COURT OF APPEAL

CITATION: Cerutti v. Forbes-Johnson [2004] NSWCA 49

FILE NUMBER(S):

41036/02

HEARING DATE(S): 1 March 2004

JUDGMENT DATE: 08/03/2004

PARTIES:

Steven Cerutti - appellant

Maree Forbes-Johnson - respondent

JUDGMENT OF: Giles JA Hodgson JA Stein AJA

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 8223/00

LOWER COURT JUDICIAL OFFICER: Murrell DCJ

COUNSEL:

Mr. G.B. Evans for appellant

Mr. A.T. McInnes QC with S. Hickey for respondent

SOLICITORS:

Tress Cocks & Maddox, Sydney for appellant

Bryan Gorman & Co., Campbelltown for respondent

CATCHWORDS:

TORTS

NEGLIGENCE - Medical negligence - Failure of anaesthetic during operation - Adequacy of dosage - Need to show that defendant's opinion as to adequacy was such as should not have been held by a reasonable anaesthetist, or that otherwise the defendant departed from proper practice.

LEGISLATION CITED:

DECISION:

1. Appeal allowed. 2. Verdict and judgment of the primary judge set aside, and in lieu thereof verdict and judgment for the appellant, and the respondent to pay the appellant's costs of the proceedings. 3. Respondent to pay appellant's costs of the appeal, and have a certificate under the Suitors' Fund Act if otherwise entitled.

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 41036/02

DC 8223/00

GILES JA

HODGSON JA

STEIN AJA

Monday 8 March 2004

CERUTTI V. FORBES-JOHNSON

Judgment

1 GILES JA: I agree with Hodgson JA.

2 HODGSON JA: On 11 October 2002, Murrell DCJ gave judgment in proceedings for damages brought by the respondent against Dr. Christopher Margin and the appellant. The primary judge found a verdict for Dr. Margin, and a verdict for the respondent against the appellant in the sum of $48,600.00. The appellant appeals by leave from that decision, on the question of liability only.

CIRCUMSTANCES

3 The claim arose out of the delivery of the respondent's baby by caesarean section on 20 October 1997. Dr. Margin was the obstetrician, and the appellant was the anaesthetist. The finding of the primary judge was that the respondent experienced six to eight minutes of severe pain during this procedure, due to anaesthetic failure; and the award of damages was for this pain and its consequences.

4 Prior to the operation, the respondent confirmed to the appellant that she wanted a spinal anaesthetic, so that she would be conscious during the delivery. The respondent administered a spinal anaesthetic, commencing at 9.05am on the date of the procedure, the anaesthetic in question being 1.8mls of heavy bupivacaine. An epidural catheter was inserted, and the primary judge found it was inserted without pain, and used to provide satisfactory pain relief over the days following the procedure. However, it was not used to "top up" anaesthetic for the purposes of the operation.

5 The appellant's evidence was that he tested for the adequacy of the anaesthetic in four ways: first, he asked the respondent to lift her leg to ensure that there was a motor block; second, he observed her being placed on the operating bed, and confirmed there was no movement; third, he saw no wincing when the catheter was inserted; and fourth, when Dr. Margin "prepped" the respondent with a cold swab on the abdomen, the appellant asked the respondent whether she could feel the temperature, and she replied in the negative.

6 The primary judge was not convinced that the appellant actually recalled these four events; but she accepted that this was his usual practice and that he believed that he carried it out on this occasion. The primary judge expressly found that the catheter was inserted without pain; and she was not satisfied that the other aspects of testing did not occur.

7 The primary judge found that the respondent first experienced severe pain when the muscles of the abdominal peritoneum were stretched; and that at that stage she moaned and conveyed to the appellant that she was experiencing severe pain. The primary judge continued:

[81] Dr Cerutti's initial response was to assume that the plaintiff's pain was normal pressure pain. There was a short delay in him appreciating that she was suffering from severe pain. However, the communication of pain at that stage gave Dr Cerutti less than a 20 second window of opportunity to call a halt to the procedure while a general anaesthetic was administered. It takes about 20 seconds to pull aside the abdominal muscles and incise the uterine peritoneum, at which stage the "point of no return" is reached and the operation cannot be stopped without compromising the safety of mother and baby. By the time that Dr Cerutti appreciated that the plaintiff might be experiencing an unacceptable level of pain and went to the end of the bed to ascertain the stage which the procedure had reached, the procedure was at the "point of no return". I accept the defendants' submission that Dr Cerutti was faced with a clinical dilemma at or about the time of the incision of the uterus and made a professionally appropriate decision to allow Dr Margin to proceed with the delivery. The pain which was then experienced by the plaintiff was not life threatening, but halting the operation could have been life threatening to mother and child. It was desirable that Dr Cerutti raise the issue with Dr Margin and the plaintiff, but discussion could not reasonably have resulted in cessation of the procedure.

[82] I accept the defendants' evidence that, with the exception of administration of a general anaesthetic, at that stage alternative pain relief was not feasible. An epidural anaesthetic would not have afforded rapid relief. The administration of a narcotic was contraindicated because it could impact upon the baby's health and upon the plaintiff's health as her airway was unprotected. Further, there would have been a delay in obtaining a narcotic and a delay in the drug taking effect. Nitrous oxide would not have provided effective relief and may not have been safe because of the risk of vomiting. Dr Cerutti correctly concluded that a general anaesthetic was the only appropriate relief for the serious pain which the plaintiff was experiencing.

8 After two to three minutes following the delivery of the baby, a general anaesthetic was administered; and the primary judge was not satisfied there was any significant delay in this respect.

9 The primary judge found that the respondent suffered six to eight minutes of severe pain: three minutes from the stretching of the abdominal muscles to delivery; two to three minutes to the administration of the general anaesthetic; and one to two minutes until the general anaesthetic took effect. The primary judge concluded:

[86] It is reasonably plain from the expert evidence that the reason that the plaintiff experienced severe pain was that the dose of 1.8 mls of heavy bupivacaine was not sufficiently dense at the upper extremity of the block, so that severe pain was felt when the incision reached the abdominal peritoneum and the muscles were stretched. I consider that, while the administration of 2 to 2.5 mls of anaesthetic would not have guaranteed pain free surgery, it is very probable that such a dose would have resulted in pain free surgery. In relation to this matter, I prefer the evidence of Dr [Collier] to that of Dr Gatt.

[87] Dr Gatt himself explained that the subarachnoid space can be conceptualised as a column which must be filled with anaesthetic to the required height. The required height is substantially governed by the height (and, to some extent, by the weight) of the particular patient, so that taller patients have a longer column, which requires a larger volume of anaesthetic to reach the required height.

[88] On Dr Cerutti's own evidence, the quantity of anaesthetic which he administered was borderline in terms of adequacy in that, had the plaintiff been one inch taller, he would have administered 2.2 mls (an increase of more than 20% on the dose of 1.8 mls). Dr Cerutti stated that the effectiveness of the spinal block may have been compromised by the bleeding which occurred when the peritoneum was cut. Dr Gatt expressed a similar view. However, by all accounts a significant loss of blood was an expected concomitant of that part of the procedure. It was Dr Collier's evidence that there was no real health risk with a slightly higher dose.

[89] The theory that a lower dose of spinal anaesthetic can be used when an epidural catheter has been inserted because the spinal block can be "topped up", makes sense in the context that, if initial testing establishes that the spinal block is ineffective, then the epidural can be "topped up" prior to the commencement of the procedure, resulting in a slight delay to commencement of the procedure. However, the administration of a lower dose makes little sense in the context that there is a 1% to 2% risk of spinal block "failure", and that risk usually materialises at or soon after incision of the abdominal peritoneum, when (as illustrated by the circumstances of this case) it may be bordering on impossible to stop the procedure without compromising the health of the patient or her baby. An epidural "top up" is of no benefit at that stage because it does not take effect for about 10 minutes after administration. While it may be the practice of some anaesthetists to administer lower doses of spinal anaesthetic where an epidural catheter has been inserted, I am satisfied that in the circumstances of this case that practice did not conform with the reasonable care demanded by the law as there was a significant (1-2%) risk of severe pain arising at a critical stage of the operation, which risk would probably (although not certainly) have been eliminated by the administration of a higher dose, and the plaintiff did not accept the risk.

GROUNDS OF APPEAL

10 The appellant relies on the following grounds of appeal:

1. Her Honour erred in finding that the Appellant acted or omitted to act in breach of his duty of care to the Respondent (Jt. para. 89).

2. Her Honour erred in finding that the administration of 1.8 mls heavy Bupivacaine anaesthetic (dosage) to the Respondent on 20 October, 1997 constituted a breach of the Appellant's duty of care to the Respondent.

3. Her Honour erred in failing to find that the dosage of anaesthetic administered by the Appellant was tested by orthodox, clinically acceptable methods and the Appellant discharged his duty of care as a reasonably competent specialist anaesthetist.

4. Her Honour erred in finding that the administration of 2.0 mls to 2.5 mls of heavy Bupivacaine "would have resulted in pain free surgery" in that such finding was against the evidence (Jt. para. 86)

5. Her Honour's finding immediately above was in error as being both contrary to the evidence and against the weight of the evidence.

6. Her Honour erred in finding that the risk of severe pain arising during the course of a caesarian (sic) operation would probably have been eliminated by the administration of a higher dose of anaesthetic (Jt. para. 89) in that such finding was contrary to the evidence and against the weight of the evidence.

7. Her Honour erred (Jt. Para. 62) by giving undue weight to a retrospective observation by Dr Gatt:-

(a) without applying that observation in the context in which it was made;

(b) without having regard to reasonable foreseeability;

(c) applying a test of hindsight;

and otherwise erred in according insufficient weight to the expert opinion of the experts called in the Appellant's case (below), more particularly where such evidence was consistent with the evidence of the expert evidence relied upon by the Respondent, (in the case below).

8. Her Honour erred in giving undue weight to Exhibit "D", (Dr.Collier's report) but without giving due and sufficient weight to the oral testimony of that witness. (Jt. 59)

9. Her Honour erred in finding that the quantity of anaesthetic administered by the Appellant was "borderline in terms of adequacy", (Jt.88).

11 The respondent has put on a Notice of Contention, contending that there was negligence in the following respects, not found by the primary judge:

1. Not paying close attention to the Respondent to listen for any complaint of pain.

2. Failing to enquire of the extent of the pain when the Respondent first complained of pain.

3. Failing to advise the surgeon of the complaint of pain and to have the operative procedure stopped until an adequate anaesthetic could be performed.

4. Failing to administer a further anaesthetic when the Respondent first complained of pain.

SUBMISSIONS

12 Mr. Evans for the appellant submitted that, although it was open to the primary judge to accept, as she did, that the opinion of Dr. Collier, that 2-2.5mls of anaesthetic was the appropriate dosage was preferable to the opinion of Dr. Gatt, the primary judge did not squarely address the question whether the appellant's opinion that 1.8mls was sufficient in the circumstances was one that a reasonable and competent anaesthetist should not hold, so that what the appellant did amounted to a failure to exercise proper skill and care. Had she addressed that question, it was plain on the evidence that this was not established.

13 In particular, Mr. Evans submitted that the primary judge did not have regard to Dr. Collier's evidence (Black 167 C-H) that for the appellant, after testing, to permit the procedure to go ahead was not a departure from proper practice; the primary judge failed to consider evidence that there are risks if more anaesthetic than necessary is used; and the primary judge misunderstood Dr. Collier's evidence to the effect that there was a 1%-2% risk of failure even if a proper dosage was given.

14 Mr. Evans also submitted that there was error in relation to causation: he submitted that the evidence did not establish that the pain was suffered because only 1.8mls of anaesthetic was used, rather than because this was one of the 1%-2% of cases where anaesthetic failed.

15 Mr. McInnes QC for the respondent submitted that Dr. Gatt did not wholly support the appellant: his evidence was that 1.8mls was sufficient only if an epidural anaesthetic was used as well, and that otherwise he instructs registrars to give 2.1 or 2.2mls. He submitted that the dose given was at best borderline: if the respondent had been one inch taller, the appellant would have given her a dose of 2.2mls. He submitted that, in circumstances where it was established that the giving of this low dosage increased the risk of the patient suffering pain, there was an evidentiary onus on the appellant to show that the pain actually suffered was not a manifestation of this increased risk, but rather fell within the 1%-2% of cases where anaesthetic fails for other reasons.

16 In any event, Mr. McInnes submitted, the verdict and judgment in favour of the respondent should be upheld on the grounds in the Notice of Contention. The appellant had an opportunity to halt the operation temporarily when the respondent exhibited pain, before the point of no return was reached. The anaesthetic could have been topped up with an epidural anaesthetic, and the procedure could have been continued when that anaesthetic took effect. The primary judge should have found that the appellant failed to exercise reasonable skill and care on this aspect also.

DECISION

17 In my opinion it was open for the primary judge to accept Dr. Collier's evidence to the effect that 2-2.5mls was an appropriate dosage for this case, and that 1.8mls was too little. There is no appealable error on this point. However, the essential issue in the case was not which of two competing medical opinions as to the correct dosage was preferable, but rather whether the opinion of the appellant was such as should not have been held by a reasonable anaesthetist, or that otherwise the appellant departed from proper practice. There is in my opinion appealable error on this issue.

18 In my opinion, the primary judge did not address the question of whether there were any risks in giving a dosage that was higher than the amount needed for effective prevention of pain. At par.[88], the primary judge referred to Dr. Collier's evidence that there "was no real health risk with a slightly higher dose". But she did not consider Dr. Gatt's evidence (Blue 108) that a larger dose exposed the mother to the risks of (inter alia) "a larger fall in blood pressure" and the foetus/infant to "diminished utero-placental blood flow; and subsequent birth asphyxia". Nor did she refer to somewhat similar evidence given by the appellant (Black 287). In circumstances where this evidence of Dr. Gatt and the appellant was not challenged in cross-examination, a finding that there was no real risk in a dose higher than necessary for pain prevention would have needed to be justified by a process of reasoning. In my view, it was not established that it was not a respectable medical view that there were appreciable risks in giving a patient a higher dose than necessary. Plainly, in my opinion, an anaesthetist holding that view would not be acting unreasonably in seeking to give a patient no more anaesthetic than necessary to prevent pain.

19 In my opinion also, the primary judge misconstrued Dr. Collier's evidence about the 1%-2% risk of failure. His evidence was not to the effect that this was a risk that would probably be eliminated by administering a higher dose than 1.8mls in this case, but rather that this was a risk that existed even if a correct dose was administered.

20 I do not accept Mr. McInnes' submission that even Dr. Gatt did not support the appellant. In my opinion, although Dr. Gatt's evidence on this was not always expressed as clearly as it could have been, it is plain that Dr. Gatt was aware at all times that the appellant did not use the epidural component of the anaesthetic before or during the procedure (Blue 102), and that when he was discussing a top-up by epidural anaesthetic if the spinal anaesthetic of 1.8mls was insufficient, he was referring to a situation where testing before the operation showed that 1.8mls was insufficient. His evidence to the effect that he advises registrars to use 2.1 and 2.2mls (Black 355) was in relation to spinal anaesthetic on its own, without the availability of an epidural top-up; and his reference to the use of 2.5mls, or probably 2mls, for the respondent (Black 349) was again limited to the case where there was no mechanism of adjusting it. Dr. Gatt's evidence was that, in relation to a person of the size of the respondent, 1.8mls was sufficient as an initial dose; and that if the pre-operation tests showed that the dose was insufficient, the level would be adjusted by epidural anaesthetic before the operation (Black 556).

21 Dr. Collier did not say that this would be a departure from proper practice. He acknowledged that others administered less than his recommendation (Black 160, 165), and he also gave this evidence:

Q. Well, in these circumstances that you've been asked to report about, with a relatively short woman of the weight I think you've identified, if Dr Cerutti carried out the orthodox testing procedures that we've been talking about and they indicated to him that the block was satisfactory, that would be sufficient, would it not, for the anaesthetist to feel satisfied that the block he had administered was satisfactory for the purposes for which it had an administered?

A. Yes, he would think so; yes.

Q. And it wouldn't be a departure of good practice or medical diligence and prudence to move from that conclusion to allow the procedure to commence?

A. No, that's right.

22 The reference in that evidence to "these circumstances that you have been asked to report about" would in my opinion include the administration of 1.8mls of anaesthetic.

23 I accept Mr. Evans' submission that the primary judge did not squarely address the question of whether what the appellant did amounted to a departure from proper practice, and thus to a breach of duty of skill and care. The reason given in the last sentence of par.[89] for finding non-conformity with reasonable care required by the law is vitiated by her misunderstanding of the evidence concerning the 1%-2% risk; and the primary judge did not address at all the question whether a view that there was not an appreciable risk in using only 1.8mls in this case, when tests showed the anaesthetic was effective, was a view that should not have been held by a reasonable medical practitioner.

24 In my opinion, had the primary judge squarely addressed the question of whether what the appellant did was a departure from proper practice, so as to amount to a breach of duty of reasonable skill and care, the only reasonable conclusion on the evidence was that this was not shown. The evidence I have in mind here is Dr. Gatt's evidence; the circumstance that there was no evidence from Dr. Collier that such a view of Dr. Gatt, and others, was not a view open to a reasonable medical practitioner; evidence from Dr. Collier that in the current circumstances, where the tests showed that the anaesthetic had taken effect, it was not a departure from proper practice to go ahead; and the circumstance that the evidence did not justify a finding that it was not a reasonable opinion that there are appreciable risks in giving a higher dosage than is necessary.

25 Turning to the Notice of Contention, in my opinion the evidence did not show that the appellant had a 20 second window after the display of pain in which the operation could have stopped. The evidence about 20 seconds related to the administration of additional anaesthetic, and of course there would in addition be some minutes before this additional anaesthetic could take effect. Even accepting that it would have been open to delay the operation for some time after the abdominal muscles had been stretched, and before the cutting of the uterus, the window of opportunity is likely to have been very much less than 20 seconds. In my opinion, there is no error in the primary judge's view that, by the time the appellant appreciated that the respondent was experiencing an unacceptable level of pain and could have acted on this appreciation, the procedure had reached the point of no return.

26 There is no need to deal with the other submission of the appellant. However, I am inclined to the view that if the respondent had established that the dosage did materially increase the risk, and that the appellant should have been aware of this and avoided it, it would have been open to infer that the pain that occurred was due to the materialisation of this increased risk rather than due to the case falling within the 1%-2% of cases where pain occurs even though the dosage of anaesthetic administered was on all reasonable assessments an adequate one.

CONCLUSION

27 For those reasons, in my opinion the following orders should be made:

1. Appeal allowed.

2. Verdict and judgment of the primary judge set aside, and in lieu thereof verdict and judgment for the appellant, and the respondent to pay the appellant's costs of the proceedings.

3. Respondent to pay appellant's costs of the appeal, and have a certificate under the Suitors' Fund Act if otherwise entitled.

28 STEIN AJA: I agree with Hodgson JA.

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LAST UPDATED: 08/03/2004