Courts Must Beware When Medical Opinions Are Split
Hawkesbury District Health Service Limited & Anor v Patricia Chaker  NSWCA 320 (25 November 2010)
In early 2003, Patricia Chaker was having problems with varicose veins in both legs. On 3 February 2003, she saw Dr Elizabeth Tompsett, general surgeon, who recommended surgery to treat the varicose veins.
Ms Chaker attended a second consultation with Dr Tompsett on 17 February 2003, bringing with her the results of a pre-operative ultrasound. The ultrasound revealed that she had saphenous disease affecting her left leg and pelvic venous reflux. [Pelvic venous reflux creates a veil or screen of veins across the area where a surgeon performs standard varicose vein surgery. When such veins are encountered during surgery, extensive dissections and ligations of veins are necessary for the surgeon to reach the major vein.]
On 13 May 2003, Dr Tompsett performed the operation at the Hawkesbury District Hospital.
On 15 September 2003, Ms Chaker attended a post-operative review with Dr Tompsett. She had suffered from a swollen and painful left leg for 4 weeks. Dr Tompsett referred her for an ultrasound of the leg. After a review on 29 September 2003, Dr Tompsett wrote to the respondent’s GP and expressed concern about the claimant’s swollen leg.
Ms Chaker’s condition failed to improve. Dr Tompsett referred her to Dr Malouf, a general surgeon who specialised in vein problems and venous surgery. On 9 December 2003, Dr Malouf diagnosed the respondent with severe lymphoedema in the left leg. [Lymphoedema is a rare condition caused by a deficiency of the lymphatic drainage system, which results in tissue swelling. There is no known cure for this condition.]
The trial judge identified the following issues to be resolved:
- The cause of Ms Chaker’s lymphoedema and its relationship to the operation on 13 May 2003 (factual causation);
- Whether Dr Tompsett had breached her duty of care to the patient;
- If Dr Tompsett had breached her duty of care, whether this breach caused or materially contributed to Ms Chaker’s lymphoedema (legal causation); and
- The appropriate award of damages under the Civil Liability Act 2002 (NSW).
The Decision at Trial
- His Honour rejected the defendant’s expert evidence that Ms Chaker’s lymphoedema had developed only 4 weeks before the consultation on 15 September 2003, and instead found that the condition had developed as a consequence of the operation. His Honour accordingly found that factual causation had been made out.
- His Honour held that Dr Tompsett had breached her duty of care – Dr Tompsett should have undertaken a full physical examination, which would have enabled her to diagnose pelvic venous reflux, and should have recommended that the patient obtain a second opinion.
His Honour did not acknowledge Dr Tompsett’s evidence that she had diagnosed Ms Chaker’s pelvic venous reflux, but she did not consider that an operation on her legs – as opposed to her pelvic area – should be postponed, or that she should send Ms Chaker for a second opinion.
- His Honour held that Dr Tompsett’s failure to diagnose Ms Chaker’s pelvic venous reflux caused her to give incorrect advice about her treatment and meant that Ms Chaker was not referred for a second opinion – this led to Dr Tompsett performing an operation that was long and complicated and which increased the risk of damage to the respondent’s deep lymphatic system. His Honour was satisfied that Dr Tompsett’s breach of duty caused or materially contributed to Ms Chaker’s lymphoedema.
- Judge Delaney found for Ms Chaker against Dr Tompsett in the sum of $345,690 plus costs.
Dr Tompsett appealed.
The Decision of the New South Wales Court of Appeal
- The Court of Appeal held that the trial judge had made generalised conclusions on important factual issues without reference to actual evidence. These factual issues included when the onset of the swelling occurred, and whether it was likely, as a matter of science, that the operation caused the lymphoedema. The defendant’s experts argued that it was extremely unlikely that the operation could have damaged the deep lymphatic system in Ms Chaker’s legs at all, let alone to the extent necessary to cause lymphoedema. They thought the more likely cause to be a congenital condition known as Milroy’s disease.
The Court held that the trial judge should not have accepted the plaintiff’s expert opinion without resolving the controversies raised by the evidence of the other experts. A retrial was ordered.
- The Court held that there was a considerable body of evidence that supported Dr Tompsett’s treatment approach, i.e. proceeding with the surgery even where pelvic venous reflux was present.
There were 2 schools of thought – the first school of thought was that the pelvic veins should be operated on first; the second school of thought was that the legs should be dealt with first and then pelvic vein surgery could be undertaken if it was still necessary.
The Court found that the trial judge had not acknowledged the existence of the body of opinion that supported Dr Tompsett’s approach. The Court held that the trial judge could not therefore conclude that Dr Tompsett had breached her duty of care.
- On the issue of legal causation, the Court of Appeal accepted that the operation Dr Tompsett performed was recognised by a substantial body of medical opinion as appropriate, even where pelvic venous reflux was present. Several experts agreed that they would have proceeded with the operation performed by Dr Tompsett.
The trial judge also did not identify what advice or options would have been given to Ms Chaker had she been referred for a second opinion. Legal causation was therefore not made out. The Court concluded that the matter of legal causation also needed to be considered at a retrial.
- The Court highlighted that there is to be a spirit of co-operation between medical professionals and the courts. This is exemplified by the expert code of conduct, which has the primary purpose of ensuring evidence is given in a way that provides the judge with relevant expert material to enable him or her to properly decide a case. The Court criticised the trial judge’s treatment of certain defendant witnesses as being contrary to the rationale and spirit of the expert code of conduct.
- The Court did not alter the trial judge’s findings on quantum and held that when the matter proceeded to a retrial, the issue of damages should not be re-litigated.
The Claim Against the Hospital
- When the proceedings were commenced, the hospital was joined on the basis of a reference in the clinical notes to a person named “Drew”. The claim referred to “Drew” as a doctor who assisted in the operation, when in actual fact “Drew” turned out to be a nurse. This reality did not come out until Dr Tompsett gave evidence at trial on 11 March 2008.
- The trial was then adjourned for the parties to make written submissions. Closing oral submissions were made on 20 October 2008. At that time, Ms Chaker’s legal team accepted that given the true identity of “Drew”, there was no evidence of negligence against the hospital. Ms Chaker discontinued the proceedings against it.
- The trial judge found that Ms Chaker should pay the hospital’s costs until 14 March 2007 because she had not made proper enquiries as to the identify of “Drew”.
- Ms Chaker’s legal team sent a fax requesting details of “Drew’s” identity on 13 March 2007. The hospital refused to provide these details. The trial judge considered that parties to litigation should take steps to ensure that all relevant parties to the dispute are aware of what the issues are and are to ensure that other parties are not proceeding on a misconception or a false assumption. Failure to clarify such issues is evidence of misconduct in the context of an order as to costs. Because of this, his Honour held that the hospital was not entitled to costs from 15 March 2007 to 11 March 2008.
- His Honour ordered Ms Chaker to pay the hospital’s costs for the period 11 March 2008 to 20 October 2008, since there was no good reason for her to have maintained proceedings against the hospital after she became aware of “Drew’s” identity on 11 March 2008.
For more information or to discuss this topic further, please contact Robert Samut.