It is Not All Bad News

CLAIM ONE

Background of claim

The plaintiff underwent laparoscopic repair of bilateral inguinal hernias in early 2008. 3D Max Bard mesh was tacked in situ following reduction of the hernial weaknesses during the original laparoscopic surgery. Good haemostasis was achieved and the bleeding was not significant. The count sheet showed that only one pack of five sponges and swabs was used, and accounted for, during the procedure. 

Drainage of an abdominal abscess was required six weeks later following a right sided port site infection. Gauze packing was intentionally left in the wound at the time of the second surgery and removed and replaced until the wound healed.

Ultrasound of the left groin and x-ray pelvis and left hip were performed in mid 2008 as the plaintiff had an episode of severe pain in his left groin when rolling over in bed. The report noted surgical clips projecting over the pelvis with no report of any radio-opaque markers.

The plaintiff next saw our Member in late 2009, with a four day history of pain and swelling in his left groin. Ultrasound showed a large mass in the left iliac fossa suggestive of residual packing material within a chronic haematoma. Our Member thought the “packing material” was probably mesh floating in a seroma. The seroma was drained and the mesh was removed. Our Member reported no residual packing material and noted it was not possible to confuse the mesh removed with swabs.

The plaintiff commenced proceedings against our Member, a general surgeon, alleging that “swabs and other packing materials” had been left in situ following one of the 2008 surgeries.

Evidence

The plaintiff relied on the evidence of a general practitioner, who reported that he had reviewed the “x-ray film”, although the date of the “film” was never confirmed and it seems the actual mid 2008 x-ray was lost. He stated that radio-opaque inserts were visible. He was also critical that the scrub sister and the surgeon did not perform the final swab count together.

On behalf of our Member, reports were obtained from a professor of radiology, and a laparoscopic surgeon. Our experts thought the appearance on the 2009 ultrasound was consistent with hernia repair mesh within a seroma and in light of the plaintiff's history and absence of any radio-opaque markers reported in the mid 2008 x-ray, the ultrasound appearance most likely represented hernia repair mesh.

Our surgical expert noted that surgeons had not been involved in swab counting over the last 30 years, and this is international gold standard. He could find no evidence that swabs and/or packing material were retained. If a residual pack or gauze swab had been left in situ during the original operation, it would have been evident at the subsequent surgery and would not have taken 15 months to present as an issue.

Outcome

The plaintiff was invited on four occasions to agree to a verdict in our Member’s favour on the basis that each party pays their own legal costs, along with detailed explanations as to why the plaintiff’s claim would fail, including the quality of the plaintiff’s expert evidence. There was no response to the offers.

Just before the hearing, the plaintiff’s solicitors invited our Member to agree to a verdict in the defendant’s favour on the basis that each party pays their own costs. The plaintiff’s offer was rejected. After further negotiations, the plaintiff agreed to (1) a verdict in favour of the defendant and (2) pay a significant proportion of our Member’s legal costs.

The firm of solicitors instructed in the plaintiff’s matter frequently acts on behalf of plaintiffs in medical negligence matters. It is hoped that our stance in not accepting the plaintiff’s offer of a verdict in favour of the defendant on a “walk away” basis, but seeking a significant proportion of our costs, will send a strong message that we will be vigorous in seeking our legal costs under similar circumstances.

CLAIM TWO

Jordan v Lee & Baker [2012] WADC 74

On 25 May 2012, the District Court of WA dismissed a claim against a neurosurgeon and a paediatric oncologist for an alleged failure to advise the parents of a child with a brain tumour that other neurosurgeons would have resected the tumour.

Background of claim

The plaintiff first presented to Mr Lee, neurosurgeon, with a long-standing tumour in the basal ganglia in August 1996. Due to the location of the tumour, presence of leptomeningeal metastases and the plaintiff being largely neurologically intact, Mr Lee advised the parents that the risks of surgically removing the tumour outweighed the benefits.

Mr Lee referred the plaintiff to Dr Baker, oncologist, for adjunctive management.

Mr Lee next saw the plaintiff in May 1998. An MRI indicated a slight increase in the cystic component of the tumour which, coupled with some worsening symptoms, led Mr Lee to surgically aspirate the cyst in 1999. The tumour itself showed little change over this time.

The plaintiff’s situation changed significantly in May 2000 when further cystic growth caused dramatic neurological decline. The risks were now more evenly balanced with the potential benefits of surgery. An increase in cyst size meant that Mr Lee could now approach the tumour from the cyst without having to go through normal functioning brain. Mr Lee proceeded to surgery but was unable to complete the procedure for reasons beyond his control.

The plaintiff's parents sought referral to an interstate neurosurgeon, who undertook three operations over the next month removing 98% of the tumour.

The plaintiff’s case

It was alleged that the parents of the plaintiff should have been advised that surgical resection was a treatment option that other surgeons, acting reasonably, would have performed in 1996, 1998 and 1999 and the defendants knew of such surgeons.

The plaintiff alleged that had his parents been told in 1996 that there was a potentially curative surgical option this would have been their treatment of choice.

The only expert called on behalf of the plaintiff was the interstate neurosurgeon, who presented as both a witness of fact and of opinion. This surgeon gave evidence that he would have recommended an attempt at complete removal of the plaintiff’s tumour at all times from 1996. He reported that a large body of surgeons in the USA were removing tumours like the plaintiff’s in 1996 and would have recommended surgical removal of the tumour.

He concluded that most, if not all, of the plaintiff’s disabilities would have been avoided by earlier aggressive surgical intervention.

The defendants’ case 

Six experts called on behalf of the defendants gave detailed evidence that they were not aware of any neurosurgeon who, in 1996, would have given advice to the effect that the benefits to be obtained from an attempted gross total resection of the plaintiff’s tumour outweighed the risk of that procedure. The same opinions were expressed for 1998 and 1999.

District Court findings 

The judge preferred the evidence of the experts for the defence, finding that an attempt at resection in 1996, 1998 and 1999 would not have been reasonable.

He held that To retrospectively impose a duty mandating the giving of advice between 1996 and 2000 that other neurosurgeons, acting reasonably, would have resected Daniel’s tumour would be wrong on the facts of this case. Such other neurosurgeons would not have been acting reasonably in resecting Daniel’s tumour. Further, there is no or no sufficient evidence that there were then such surgeons resecting tumours of the kind Daniel suffered. Given that, it would be too obtrusive to impose a duty to advise that an unnamed and unknown surgeon somewhere in the world, acting reasonably, would have resected the tumour. Further, to impose a duty to have enquired whether radical resection might have been reasonably undertaken in the circumstances of Daniel’s tumour would have been too onerous and productive of great uncertainty as to the duty of care owed by a medical practitioner to the patient.

The judge was not persuaded by the plaintiff’s expert evidence on a number of issues of fact and opinion. He was not persuaded that the underlying foundation for the expert’s opinion to resect the tumour before 2000 had been satisfactorily explained in his evidence, nor was it supported by the literature.

The judge noted that the plaintiff’s expert was clearly passionate about the resection of brain tumours as providing the best chance of a cure, but that it was this passion and his subjective involvement in the plaintiff's treatment that was interfering with his objectivity and impartiality as an expert witness.

Outcome 

Of note is that in finding there is no obligation on a surgeon to advise that, contrary to their view, other surgeons would recommend surgery, the trial judge made the factual conclusion that there were no such surgeons who would have reasonably recommended proceeding to surgery in this case. This involved the trial judge's rejection of the evidence given by the plaintiff’s expert. This case highlights that regardless of an expert’s qualifications and experience, their opinion will be of little use if they are unable to furnish the judge with the necessary scientific criteria for testing the accuracy of their conclusions.

The decision also highlights the potential pitfalls for a practitioner appearing both as a witness of fact and as an expert. The trial judge noted that it was one thing to give evidence as the treating neurosurgeon, but quite another for a highly skilled medical expert to give evidence requiring independence and objectivity, with the primary obligation being to the court when giving that expert evidence.

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