Adams v Hertess [2010] QDC 369

DISTRICT COURT OF QUEENSLAND CITATION: Adams v Hertess [2010] QDC 369 PARTIES: DEBORAH J. ADAMS (Applicant) AND ISOLDE HERTESS (Respondent) FILE NO/S: BD769/10 DIVISION: Civil PROCEEDING: Hearing of an application ORIGINATING COURT: District Court, Brisbane DELIVERED ON: 6 October 2010 DELIVERED AT: Brisbane HEARING DATE: 16 August 2010 (Submissions closed 20 September 2010) JUDGE: R. Jones DCJ ORDERS: (i) The application is allowed (ii) The parties to be heard on costs CATCHWORDS: APPLICATION TO EXTEND TIME FOR COMMENCEMENT OF PROCEEDINGS CLAIMING DAMAGES FOR PERSONAL INJURIES PURSUANT TO S 31(2) OF THE LIMITATION OF ACTIONS ACT 1974 – Material Fact Of A Decisive Character Relating To The Right Of Action – alleged medical negligence – whether or not a right of action established – prejudice to defendant due to passage of time- s21 Civil Liability Act 2003- Doctor and Patient- give or arrange to be given information about risk. COUNSEL: Mr G. Mullins of counsel for the applicant Ms J. Dalton SC of counsel for the respondent SOLICITORS: Trilby Misso Lawyers for the applicant Minter Ellison Lawyers for the respondent -- 1 of 15 -- 2 [1] The applicant seeks an order that the time for the commencement of proceedings against the respondent be extended to 11 March 2010 pursuant to s 31(2) of the Limitations of Actions Act 1974. Background [2] The respondent was at all material times a plastic surgeon. On or about 13 June 2003 she carried out breast augmentation surgery on the applicant. It is alleged that following the surgery the applicant suffered severe infection, unevenness in the size of her breasts, scarring, and psychological distress. By reference to the chronology of events provided by Mr Mullins, counsel for the applicant, following the surgery carried out by the respondent, the applicant underwent four reversionary surgery procedures resulting in the left breast implant being removed on 25 January 2006 and a left breast reconstruction and right breast implant replacement on 7 August 2007. [3] On 11 March 2010 the applicant’s solicitors filed a claim and statement of claim in the registry of this court. Damages are sought against the respondent in the amount of $250,000. It is alleged that the surgery carried out by the respondent was in breach of the terms of contract between the parties and/or in breach of their duty of care to the applicant. The particulars alleged against the respondent are: (i) that the respondent failed to provide the applicant with adequate information as to the risks associated with the surgery; (ii) that the respondent failed to adequately treat the applicant in the provision of the surgery, in particular to the provision of medication and treatment of infection; -- 2 of 15 -- 3 (iii) that the respondent failed to exercise care and skill in the conduct of the surgery; (iv) that the respondent failed to provide adequate post surgical care and follow up to ensure that the applicant was adequately cared for and treated. [4] During the course of argument, reference was made to a report by a Dr Marshall. who is a plastic and reconstructive surgeon and a clinical associate professor of surgery. In paragraph 9 of his report dated 28 April 2010,1 Dr Marshall relevantly reported under the heading ‘Was the post operative care provided by Dr Hertess and/or the Cairns Day Surgery in regards to the claimant’s ongoing condition of a reasonable standard? And if not, why not?’ that: “The operation and the post operative care provided by Dr Hertess, Cairns Day Surgery and Cairns Private Hospital, appear to have been of a reasonable standard. Mrs Adams developed a capsular contracture of the left breast following the surgery, which is a common and well-recognised complication of breast augmentation mammoplasty…” [5] Upon this being drawn to Mr Mullins’ attention, he quite properly acknowledged that the particulars of the breach of contract and/or negligence of the respondent was probably limited to that identified in 3(i) above. Although, it might be that the facts of the case also enliven the particulars identified in 3(iii) above. The Limitation of Actions Act 1974 [6] Section 31(2) of the Act relevantly provides: “Where on application to a court by a person claiming to have a right of action to which this section applies, it appears to the court— (a) that a material fact of a decisive character relating to the right of action was not within the means of knowledge of the 1 Exhibit OK2 to the affidavit of Ms Kowalik filed 10 June 2010. -- 3 of 15 -- 4 applicant until a date after the commencement of the year last proceeding the expiration of the period of limitation for the action; and (b) that there is evidence to establish the right of action apart form a defence founded on the expiration of a period of limitation; the court may order that the period of limitation for the action be extended so that it expires at the end of one year after that date and thereupon, for the purposes of the action brought by the applicant in that court, the period of limitation is extended accordingly.” [7] Section 30(1)(c) of the Act provides: “A fact is not within the means of knowledge of a person at a particular time if, but only if— (i) the person does not know the fact at that time; and (ii) as far as the fact is able to be found out by the person – the person has taken all reasonable steps to find out the fact before that time.” The applicant’s position [8] It is submitted on behalf of the applicant that the material fact of a decisive character that the applicant did not know about, and would not have been able to know about if reasonable steps were taken, was the medical advice provided by Dr Marshall on 20 April 2010. For the reasons referred to above the relevant medical advice is probably that contained in paragraphs 2, 4 and 9 of Dr Marshall’s report concerning advising about risk. The respondent’s position [9] Ms Dalton SC, counsel for the respondent, did not take issue with the fact that information contained in Dr Marshall’s report concerning the respondent’s duty to adequately explain the risks associated with the surgery might constitute a material fact of a decisive character for the purposes of s 31(2)(a) of the Act. Instead, Ms Dalton contended that the second limb of s 31(2) was not satisfied as the -- 4 of 15 -- 5 applicant had failed to establish by evidence a right of action. It was also submitted that in any event the court would not exercise the discretion granted pursuant to s 31(2) because to do so would prejudice the respondent. Has a cause of action been established? [10] In Wood v Glaxo Australia2 McCrossan CJ relevantly said: “… it will not be possible to predict whether the plaintiff’s evidence will prevail at trial when it will be subjected to challenge and forced to confront the opposing evidence of the defendant, but it is probably accurate enough to say that an applicant will meet the requirement imposed by s 31(2)(b) if he can point to the existence of evidence which it can reasonably be expected will be available at the trial and which will, if unopposed by other evidence, be sufficient to prove his case.” (emphasise added) That test enunciated by McCrossan CJ was cited with approval by Keane JA in Raschke v Suncorp-Metway Insurance Ltd., 3 [11] As already referred to, the live allegation against the respondent is that they failed to provide the applicant with adequate information about the risks associated with the surgery. This is pleaded with more particularity in paragraph 6 of the statement of claim in the following terms: “Prior to undergoing the surgery, the defendant did not advise the plaintiff: 6.1 That she was at significant risk of suffering infection and scarring. 6.2 That there may be a need for revision surgery if the initial surgery was inadequate … 6.3 That she may be left with breasts that were deformed and in significant pain and discomfort.” 2 (1994) 2 Qd R 431 at 434-435. 3 (2005) 2 Qd R 549 at 558 para [29]. -- 5 of 15 -- 6 [12] By reference to Dr Marshall’s report at page 2, the complication suffered by the applicant following the subject surgery was the development of a capsular contracture. 4 Any post operative infection appears to have first occurred following the first remedial surgery carried out by Dr Doyle on 21 November 2005. [13] In her affidavit filed 10 June 2010, the applicant says that when she spoke to the respondent she was advised that the procedure was a common form of plastic surgery and that she would be “in and out in the same day”.5 In paragraphs 5, 9, 10 and 11 the applicant states: “5. I attended at the Cairns Plastic Surgery … on 2 June 2003 to enquire about breast implants. I was seen by a nurse who provided me with a quote, general information booklet … mammograms with implant booklet from Breast Screen Queensland, McGhan information on silicone implants, Australian Society of Plastic Surgeons Information A4 flyer and Mediplan and Health Assist leaflets… … 9. At no stage did the defendant outline risks and complications to me. The only information I had received was in the green book the nurse gave me at my first appointment. The information and documents that I was given by the nurse were extensive, but they just covered what I was told (presumably by the nurse) would be unlikely events. Therefore I put little weight on them. If the defendant had discussed these risks and complications with me personally, I would have considered them to be more serious. 10. “…When the possibility of infection was raised with me the impression I got was that if it happened it could be fixed by a course of antibiotics. I was also led to believe by the defendant and her staff that if I did everything correctly post- operatively then I would not experience any problems.” 11. I recall signing some forms after this appointment. The forms were not discussed or explained to me. I thought they were just for administration purposes and nothing to be 4 An abnormal response to the immune system to foreign materials. 5 Affidavit at para 8. -- 6 of 15 -- 7 concerned about. My surgery was then scheduled for the following day. “ (emphasis added) [14] The general information document is a lengthy one and unpaginated. Approximately half-way to two-thirds of the way through the document under the heading “Informed Consent Augmentation Mammoplasty” it is identified that the document has been prepared to help inform patients about augmentation mammoplasty, its risks and alternative treatments. It also goes on to note that it is important that the patient read the information carefully and completely and then sign the consent form. Thereafter, various risks are identified including capsular contracture. It is stated: “Capsular Contracture Scar tissue, which forms internally around the breast implant, can tighten and make the breast round, firm and possibly painful. … Although the occurrence of symptomatic capsular contracture is not predictable, it generally occurs in less than 20% of patients. The incidence of symptomatic capsular contracture can be expected to increase over time. Capsular contracture may occur on one side, both sides or not at all. Treatment for capsular contracture may require surgery, implant replacement, implant removal or ultrasound therapy.” [15] At page 21 of the “McGhan information”, referred to by the applicant, capsular formation and contracture is dealt with under the heading “Local complications”. [16] Documents exist which, at face value, contradict the applicant. Exhibit DB2 to her affidavit is a Consent to Treatment document signed by her on 12 June 2003. Among other things this document purports to confirm that the applicant had had the possible complications, risks and consequences explained to her by the respondent. It is noteworthy though that the document at first appears to record the advising doctor as Doctor Doyle and not the respondent. Doctor Doyle was the then husband of the respondent. -- 7 of 15 -- 8 [17] In the affidavit of Ms Eden, solicitor for the respondent, there is evidence that a Ms Diversi, a nurse that worked with and/or for the respondent, explained to the applicant post-operative results, care and complications. 6 There is also evidence that the respondent would, as a part of her usual practice, have spoken to the applicant about a range of matters including the risks associated with the procedure. 7 There is further documentary evidence to support this including an Informed Consent document apparently signed by the applicant and the respondent. 8 The first page of this document is largely concerned with the administration of anaesthetics. The second page, among other things, identifies that should “complications” occur, additional surgery or treatment may be necessary. [18] The Consent to Treatment and Informed Consent documents are dated 12 June 2003. The applicant says she recalls signing documents on that day but says that they were not explained to her and she thought they were just for “administration purposes”. 9 [19] As was identified by Ms Dalton, the case for the applicant at its highest, that is leaving aside any contradictory evidence that might be led on behalf of the respondent, is that because the risks associated with the procedure were not explained by the defendant, she did not attach much weight to what she was told and had the respondent discussed the risks and complications with her personally she would have considered them to be more serious. It is not asserted that the applicant did not read the material or read it but did not understand it. 6 Affidavit of Ms Eden, at paras 81 and 82. 7 Ibid at paras 83 to 87. 8 Exhibits PAE 30 and PAE 31, 9 Applicant’s Affidavit at para 11. -- 8 of 15 -- 9 [20] In Rogers v Whittaker10 five justices of the High Court said: “The law should recognize that a doctor has a duty to warn a patient of a material risk inherent in the proposed treatment; a risk is material if, in the circumstances of the particular case, a reasonable person in the patient’s position, if warned of the risk, would be likely to attach significance to it or if the medical practitioner is or should reasonably be aware that the particular patient, if warned of the risk, would be likely to attach significance to it.” [21] The proactive and reactive limbs of the decision of the High Court in Rogers v Whittaker are caught by s 21 of the Civil Liability Act 2003 (CLA) which relevantly provides: “(1) A doctor does not breach a duty owed to a patient to warn of risk, before the patient undergoes any medical treatment (or at the time of being given medical advice) that will involve a risk of personal injury to the patient, unless the doctor at that time fails to give or arrange to be given to the patient the following information about the risk – (a) information that a reasonable person in the patient’s position would, in the circumstances, require to enable the person to make a reasonably informed decision about whether to undergo the treatment or follow the advice; (b) information that the doctor knows or ought reasonably to know the patient wants to be given before making the decision about whether to undergo the treatment or follow the advice. (2) ….” [22] In Olbourne v Wolf 11 Young CJ (in EQ) with Santow JA and Stein AJA agreeing said: “Dr Swift gave evidence … that she explained to Mrs Wolf that there was a problem with infection very carefully. Although Dr Swift’s procedure was different to that used by Dr Olbourne, the risks were the same. His Honour said … that he considered it somewhat doubtful whether Dr Swift informed the plaintiff of the awful result which could occur in the event of a wound breakdown. Why His 10 (1992) 175 CLR 479 at 490: see also Chappel v Hart (1998) 195 CLR 232 at 254 11 NSW CA 40549/03 at paras 43-45. -- 9 of 15 -- 10 Honour took that view he does not explain. However, he then goes on to say: ‘I do not think that the defendant doctor can call into aid, as it were, the information given to the plaintiff by Dr Swift in 1997.’ I might ask, why not? What is required is that the patient have the sufficient material in order to make an informed consent. It really does not matter where that information comes from. … With great respect to His Honour, I do not see how, with the extensive booklet that was issued, the information given by Dr Swift, the consultation between Dr Olbourne and the respondent, and the remote (though entirely unexpected) risk involved that one can come to the conclusion that the appellant was negligent in the explanation that he gave.” (Emphasis added) [23] As s21 of the CLA was not addressed during the hearing on 16 August I invited counsel to make further written submissions. Both did. [24] On behalf of the respondent it was submitted that the “provisions of s21 put beyond doubt the principle in Olboourne v Wolf” and that the applicant’s admission that she was given material which warned her of the risks of the operation is conclusive evidence that, by virtue of the operation of s21 of the CLA, there was no breach of duty on the part of the respondent. 12 [25] Both Olboourne v Wolf and s21 have to be read in context. In the former, the passage relied on by the respondent has to be read in the context of there being a very careful explanation of the risks involved by two doctors. Obviously the words “It does not really matter where the information comes from”, where used by Young CJ must also be read in the light of the previous passage requiring sufficient material (information) being provided to the patient to ensure informed consent. [26] Similarly, for the purposes of s21 of the CLA, the “arrangement” concerning the giving of evidence must be sufficient to properly bring to the attention of the patient -- 10 of 15 -- 11 the nature and quality of the advice required under s21(1)(a) and (b). That is the arrangement must be such as to ensure informed consent. To arrange to have a receptionist hand over some brochures to the patient, by way of example, would not in my view be sufficient to satisfy s21 regardless of the quality of the contents of those documents. [27] To a significant extent, the evidence relied on by the applicant (if unopposed by other evidence) to establish a cause of action against the respondent, is that set out in paragraphs 9 and 10 of her affidavit. 13 If accepted, that evidence would establish that the respondent did not personally advise her of the risks associated with the procedure and that the applicant did not place much weight on what she was told; first, because it was only provided by a nurse and not the doctor and second, because she was told that the risks were “unlikely events” and readily and easily dealt with. That the risk of capeular contractive is less than 20% 14 does not in my opinion, make it an unlikely event in cases such as this. According to Dr Marshall, it is a common and well recognised complication. 15 And clearly the complication is not always able to be easily and readily dealt with. No doubt for these reasons it is Dr Marshall’s opinion that the risks of such a complication should be explained to the patient by the surgeon.16 [28] Ms Dalton also argues that the applicant must fail because she puts no evidence before the court that, had proper warnings been given, she would not have proceeded with the operation. That is, she provides no evidence that the alleged 12 Respondent’s supplementary written submissions. 13 Set out in paragraph 14 above. 14 Refer to description of this complication in para [15] above. 15 Refer to para 5 above. 16 Exhibit OK2 the Affidavit of Ms Kowalik (at paras 2,4 and 11). -- 11 of 15 -- 12 failure to warn caused her any harm. Section 11(3) of the CLA really prevents the applicant from asserting what she would have done if properly warned. [29] During the course of argument, particularly in regard to the operation and effect of s11(3) of the CLA, I was referred to paragraph 10.14 of the text in Australian Medical Liability17 where the learned authors, after referring to the decision of the New South Wales Court of Appeal in Elbourne v Gibbs18 , set out a number of factors which have been considered relevant in considering the question of causation for failure to warn in medical treatment cases. These factors included: • The remoteness of the risk and other risks disclosed which may be of similar or greater significance; • The patient’s desire for treatment. Relevantly here for example the enthusiasm of a patient for cosmetic surgery; • The number and nature of subsequent medical procedures undertaken; • The degree of faith in the medical practitioner; • The availability of appropriate alternatives; • The social circumstances of the patient; • The economic circumstances of the patient; • The general health of the patient; • The prospects of successful treatment. [30] While the affidavit material relied on by the applicant may not be particularly strong, I do not accept that there is no relevant evidence put forward by the applicant. In paragraph 10 of her affidavit she states: “…When the possibility of infection was raised with me the impression I got was that if it happened it could be fixed by a course of antibiotics. I was also led to believe by the defendant and her staff that if I did everything correctly post- operatively then I would not experience any problems.” 17 Bill Madden and Janine McIlwraith; Lexus Nexus Butterworths Australia 2008 18 (2006) NSWCA 127 -- 12 of 15 -- 13 [31] This is broadly consistent with other evidence to the effect that she was told that the procedure would be routine (in and out the same day) and complications were unlikely.19 Also, the consequences of the surgery placed the applicant and her family under financial stress20 . Following the surgery the applicant has been required to undergo a number of medical procedures which have had a number of ramifications including physical, emotional and financial. 21 The likelihood that the applicant might have abandoned this elective procedure or at least delayed it to explore other options 22 can not be ruled out in the light of this evidence. [32] While I do not consider this to be a particularly strong case, I have nonetheless reached the conclusion that if the applicant’s evidence was accepted it would be sufficient to establish a cause of action for the purposes of s31(2)(b) of the Limitations of Actions Act 1944. The court should adopt a cautious approach to shutting out a party from her right to litigate and it would be wrong to require an applicant to essentially prove her case on the balance of probabilities in proceedings such as this. 23 Prejudice [33] On behalf of the respondent it is submitted that even if the applicant was successful under the first limb of s 31(2) of the Limitation of Actions Ac, I should exercise my discretion against granting the extension of the limitation period on the basis that it would unfairly prejudice the respondent. Broadly speaking the prejudice is that the respondent would be denied a fair trial. In Brisbane South Regional Health 19 At paragraphs 8 and 9. 20 At paragraphs 74 and 75 21 In 2007 the applicant gave birth to a child which, unlike the situation with her previous two children, she was unable to breastfeed. Although it is clear from the applicant’s material that at the time she undertook surgery neither she nor her husband intended to have any more children 22 For eg Henderson v Low & Ors (2001) QSC 496 per Dutney J. 23 Woods v Glaxo at p.434 and Raschke at paras [28]-[29]. -- 13 of 15 -- 14 Authority v Taylor24 McHugh J expressed the view that “long delay gave rise to a general presumption of prejudice.” [34] The substantive factors underlying the respondent’s assertion of prejudice are that the nurse, Ms Diversi, no longer works with and/or for the respondent and has indicated that she will not assist her in her defence. I cannot recall being directed to any material to indicate that that situation might be different had the action been commenced within the time limits prescribed by the Act. There is no suggestion that Ms Diversi has left the country or otherwise become unable to be contacted. She could be subpoenaed by the respondent. This course of action has its inherent difficulties but, in the circumstances of this case, those difficulties should not unduly prejudice the respondent. The applicant acknowledges that she was seen by the nurse and that the nurse provided her with the information and material referred to above. 25 The nurse’s relevant consultation journal entry is also available 26 . [35] Next it is asserted that the respondent would be at an unfair disadvantage because she would have to rely on evidence of usual practice. The inference being that otherwise she might have been able to rely on personal recollection of events. If that were able to be shown or, on the material before me, that inference was reasonably open, that would weigh significantly in favour of the respondent27 . However, in my view it has not been shown either directly or indirectly that the respondent would suffer and material disadvantage in this regard. In circumstances where the respondent “has around 450 similar conversations each year” 28 it is unlikely that the respondent would have had any independent recollection of a 24 (1996) 186 CLR 541 at 555-556 25 The Applicant’s affidavit at paragraphs 5 and 6 26 Exhibit PAE – 29 to the affidavit of Ms Eden filed 9.8.2010 27 MacDonnell v Rolley [2001] QCA 32 at [14] and [15] 28 Written submissions of respondent at paragraph 20 -- 14 of 15 -- 15 conversation with the applicant even if the proceedings were instituted within ordinary time limits. [36] The respondent would of course be able to give evidence about her usual course of conduct when dealing with patients such as the applicant. Also it is clear that in addition to the record of conversations between the applicant and Ms Diversi, other written records exist including a consultation record created by the respondent on 12 June 2003 and a copy of the informed consent documents signed by the applicant on 12 June 2003. [37] On the material before me I am not satisfied that the prejudice the respondent might suffer as a consequence of the delay is sufficient to deny the applicant the exercise of the discretion in her favour. No real possibility of significant prejudice to a fair trial by reason of the delay has been disclosed29 . For the reasons given the application is allowed. I will hear from the parties as to costs. Orders 1. The application is allowed. 2. I will hear from the parties as to costs. 29 McDonald v Ramalingam & Ors [2003] QSC 280 per McMurdo J -- 15 of 15 --