Chopra v Maxwell [2003] QSC 188

SUPREME COURT OF QUEENSLAND CITATION: Chopra v Maxwell [2003] QSC 188 PARTIES: RUMMA CHOPRA (Plaintiff) v DR PATRICIA ANN MAXWELL (Defendant) FILE NO/S: 47 of 1998 DIVISION: Trial PROCEEDING: Claim for damages ORIGINATING COURT: Supreme Court, Cairns DELIVERED ON: 13 June 2003 DELIVERED AT: Cairns HEARING DATE: 16 December 2002; 17 December 2002; 18 December 2002. JUDGE: Jones J ORDER: The plaintiff’s claim is dismissed. Judgment for the defendant against the plaintiff. The plaintiff pay the defendant’s costs (including reserved costs if any) to be assessed on the standard basis. CATCHWORDS: TORTS – NEGLIGENCE – where medical practitioner has a duty to exercise reasonable care and skill in the provision of medical advice – where patient prescribed a contraceptive pill but practitioner warned only of possible non-serious side effects – whether breach of duty in failure to warn of a material risk – whether material risk was negligible – whether any failure to warn of a material risk was causative of plaintiff’s injury. Rogers v Whittaker (1992) 175 CLR 479 followed COUNSEL: G R Mullins for the plaintiff S C Williams QC with A R Philp, for the defendant SOLICITORS: MacDonnells for the plaintiff Flower & Hart for the defendant [1] The plaintiff was born in India on 7 December 1964. She was therefore at the trial of this action 38 years of age. On 9 October 1995 the plaintiff suffered a cerebral vascular accident (“the stroke”) which has resulted in her now having serious and permanent disabilities. She contends that the stroke was caused by her taking a contraceptive pill Microgynon 50 ED (“the pill”) which was prescribed for her by the defendant. -- 1 of 17 -- 2 [2] The plaintiff claims, in respect of those disabilities and their consequences, damages for negligence or breach of contract on the grounds that the defendant, in prescribing the pill, failed to advise the plaintiff:- (i) that should she develop migrainous headaches or more frequent occurrence of unusually severe headaches, she should immediately cease taking the pill and seek further medical advice; (ii) that should she develop sudden perceptual disorders (eg, disturbances of vision or hearing) she should immediately cease taking the pill and seek further medical advice; (iii) that should she develop headaches or pain which did not go away, she should immediately cease taking the pill and seek further medical advice. Background facts [3] The plaintiff undertook formal education in India and graduated from the Punjab University with a degree in Home Science. [4] On 9 August 1987 she married her husband, Sham Chopra, in India. Mr. Chopra was born on 1 December 1954. The couple migrated to Australia in 1989 and settled initially in Sydney. They are now Australian citizens. [5] The plaintiff and her husband wished to start to a family but they were unsuccessful because Mr Chopra was found to have a low sperm count. During 1989 they undertook an IVF programme at Royal North Shore Hospital in Sydney. The plaintiff cannot recall the details of the programme but says she was not prescribed any oral contraceptive pill as part of that programme. [6] In 1990 the couple moved to Queensland. In November 1990 further treatment was undertaken at Monash IVF Clinic at Allamanda Hospital on the Gold Coast. This treatment extended over three programmes. The first was a repeat of the programme undertaken in Sydney. The subsequent programmes included Gamate intra fallopian transfer (“Gift”) treatment which I understand includes the harvesting of the plaintiff’s ova. The treatment required short periods of hospitalisation at the Allamanda Hospital during which time the plaintiff was given medication which caused her to experience dizziness and heaviness in the head. The plaintiff and her husband were advised to expect this symptom. The medication is likely to have contained high levels of oestrogen. 1 Despite these efforts none of the programmes resulted in the plaintiff falling pregnant. She did not, during the course of this treatment, take any oral contraceptive pill. [7] In February 1994 the couple moved to Cairns where Mr Chopra gained employment as an executive chef at the Trade Winds Resort Hotel. In August 1995 the couple again decided to undertake a fertility programme which on this occasion was being conducted by the Queensland Fertility Group (“the Group”). The Group conducted a clinic at Townsville between 7 October – 4 November 1995. [8] After the plaintiff’s initial contact with the Group they sent a letter to the plaintiff and her husband. 2 This letter set out details of the programme and importantly 1 Transcript 121/50 2 Ex 1 doc 1 -- 2 of 17 -- 3 advised the plaintiff that the commencement day of her treatment menstrual cycle had to fall between certain prescribed dates. Instructions were also given concerning other test requirements. 3 Compliance with these requirements made necessary the obtaining of blood tests for both the plaintiff and her husband and the need for the plaintiff to regulate her menstrual cycle. It is common ground that the plaintiff consulted the defendant on two occasions before suffering the stroke. [9] On 29 August 1995 the plaintiff and her husband consulted the defendant to arrange for blood tests to be taken. This resulted in a referral to a pathology clinic. The results of these tests were sent directly to the Group. [10] The next contact between the plaintiff and the defendant was on 25 September 1995. The purpose of this visit was to obtain the pill to regulate the commencement of the plaintiff’s next menstrual cycle. The plaintiff and her husband gave evidence that neither of them had any previous experience with the pill. This claim was not challenged by the defendant. I find therefore that when the plaintiff attended on the defendant she was being introduced to the effects of taking the pill. [11] There is conflict between the plaintiff’s evidence and that of the defendant as to what occurred at this consultation. The plaintiff and her husband allege that they were both present. The defendant’s recollection is that the plaintiff was alone. Of more significance is the conflict as to what occurred during the consultation and the terms of the warnings given about the potential side effects of taking the pill [12] From the history given by Mr Chopra about his involvement in the earlier IVF programmes it does appear that he maintained a personal involvement in the various steps that had to be undertaken. The relationship between the plaintiff and her husband was very close. Their joint involvement in the IVF programmes really confirms the strength of their relationship. The closeness of their relationship, the relative inexperience of the plaintiff and Mr. Chopra’s abiding interest in preparing for the upcoming programme convinces me that it is more likely than not that he was present at the time of the second consultation. [13] The purpose of the consultation was the regulation of one menstrual cycle to bring about the commencement of the next cycle on a specific date. That outcome necessitated using the packaged pill in a way that was different from a person’s commencing to take the pill for contraceptive purposes. The pill was packaged in a packet described as a “starter kit”. Ordinarily a person commencing the pill begins with a pill of a particular kind so that the ensuing menstrual cycles will commence on a weekend. The plaintiff’s different purposes necessitated a calculation of the number of days remaining in her current cycle before the date of the desired commencement of her next menstrual cycle. At the time of this consultation the plaintiff was on day 4 of the cycle and her cycle was irregular. 4 The first task, then, was to calculate the number of days before the required commencement of the next cycle. This was done with the assistance of a calendar in the defendant’s consulting room. Then the defendant went to a cupboard and took out a starter kit. [14] The contents of that packet were as depicted in ex 4, namely, an instruction pamphlet and a foil strip containing 28 tablets of which only 21 had active ingredients. The foil containing the individual pills is designed so that a tablet will 3 See Ex 8 4 Transcript 134/30 -- 3 of 17 -- 4 be removed on each of the stated days of the week. This ensures that the pills with active ingredients are taken on 21 consecutive days. 5 On the foil is an instruction given to the user to “start in the red section”.6 That instruction is appropriate for a person embarking on a long term use of the pill, but it was not appropriate for the plaintiff, who had a specific time frame. It was necessary for the plaintiff to start on pills with active ingredients in order to commence her next cycle on 9 October. [15] The plaintiff and her husband claim that the defendant did not open the packet but simply instructed the plaintiff that it was necessary for her to commence in the blue section of the foil container. The defendant said she in fact took the foil from the packet. Her evidence reads:- “DEFENDANT: I took the pills out of the box --- MR. WILLIAMS: Do you recall that? – I recall doing that to show her exactly which Monday --to start because she needed to start on the Monday of the active pills rather than the Monday of the inactive pills. And did you gain any appreciation as to whether or not she was familiar with the oral conceptive? – No, I remember that she was not familiar because when I took them out she had no – she appeared to have no familiarity at all with the type of packaging and the fact that there were different colours of the tablets.” 7 [16] On this conflict in the recollections of the respective witnesses I accept the evidence of the defendant. The explanation necessary for the plaintiff’s use of the pill could only be effective for a non-user if given by reference to the actual foil section. Moreover the making of the explanation would have been so much easier if the actual starting point could be demonstrated rather than verbally identified, by pointing out which of the three Mondays, identified in the blue section, was to be the true starting point. It is a case of the demonstration rendering the explanation easier to give and being more effective. [17] The next point of conflict goes to the terms in which the potential side effects were discussed. The plaintiff and her husband claim that the topic was raised by Mr Chopra when the couple were about to leave the consulting room after the plaintiff had been handed the packet containing the pill. Mr Chopra says he asked whether there were any side effects and the defendant replied “Rumma might get headaches or nausea”. 8 He was not sure whether the word “vomiting” might have been used instead of nausea. He said that there was no further discussion and he and the plaintiff simply left the consulting room. What prompted Mr Chopra’s query was the fact that in an earlier IVF programme the plaintiff did suffer side effects, particularly dizziness. That fact does not appear to have been part of the discussion of the plaintiff’s past medical history at the time of the earlier consultation with the defendant. The plaintiff and Mr Chopra assert that there was no warning to return if the plaintiff experienced severe or unusual headaches. 5 Transcript 135/12-50 6 See ex 4 7 Transcript 136/48-137/5 8 Transcript 53/25 -- 4 of 17 -- 5 [18] The defendant cannot recall the terms of her warning about potential side effects from the use of the pill and so gave evidence of what is normal practice. That included advising a patient of minor side effects such as nausea, maybe even vomiting, weight gain, spotting, breast tenderness and headaches. 9 The defendant feels that she may not have made reference to spotting in this instance because of the short term over which the pill was to be taken by the plaintiff. The defendant also concedes that she may not have warned of the serious side effects of taking the pill because of the likely short term use of the medication.10 The serious side effects about which the defendant would ordinarily warn include blood clotting, particularly in the legs, or brain and pulmonary embolism. The defendant has a distinct recollection of saying to the plaintiff as she does to every patient who is prescribed new medication, “If you have any problem with the medication, either ring me or come back”. 11 [19] A warning in the terms of having further contact “if you have any problem” is so routine I am satisfied on the balance of probabilities that the defendant used those terms on this occasion. The adequacy of that warning is, however, one of the major issues to which further attention will be given. [20] The plaintiff commenced taking the pill without having read the instructions booklet. Some four to five days after commencing the pill the plaintiff experienced headaches. She was not experiencing headaches prior to taking the pill and generally suffered headaches only in association with colds or influenza. The headache she described as different from those of her earlier experience. In her evidence she said: “Can you remember where in your head the headache was? – I used to have very severe headache in the morning and during daytime it will go down a bit and at night again it could have – it would be very severe again. Then I used to go to bed, it would be very slow. Then again in the morning when I get up it feel to be very severe. 12 And then at transcript p 29/42: “When Mrs Chopra experienced a headache after taking the contraceptive pill in Cairns, did she think it was a similar headache to the one she had at Allamanda?—No. In what way was it different? – It was very severe headache. The headache at Allamanda was very severe and required hospitalisation? – But that one stopped after four days and this one didn’t stop. The Allamanda headache was stopped after four days with medical treatment? – Yes. 9 Transcript 137/12 10 Transcript 138/1; 143/10; 143/35 11 Transcript 138/20 12 Transcript 24/5-10 -- 5 of 17 -- 6 The headache in Cairns continued and you didn’t seek medical treatment? – Because the doctor said you will have the headaches, so I relied on her.” [21] By contrast, in her affidavit, the plaintiff described that these headaches were present when she woke in the morning and persisted throughout the day. 13 They were not of throbbing intensity and the plaintiff did not find it necessary to take even simple analgesics for pain relief, 14 apart from the occasion when the plaintiff took Panadol which did not relieve the headache. 15 She stated that she believed the headache was the side effect which was foreseen as a possibility at the consultation and therefore a matter that was to be expected and of no concern. She claimed that if the defendant had told her to return if she experienced headaches of this kind she would have done so. [22] Mr Chopra gave evidence of the description of the headaches which the plaintiff gave to him in the following terms:- “Did she tell you anything abut the nature of the headache? – No, it was just constant and she says she got up in the morning and she had the headaches all day and all but then it used to subside and that’s about it. But it wasn’t really – it wasn’t that she couldn’t bear it, it was just with her, you know, throughout the day. That’s about it. …Did your wife express to you any concern about the headaches in particular? Other than telling you that she had a headache did she express any concern that she was worried about them? – No, she wasn’t worried. She wasn’t much concerned about it. Were you concerned about it? – No, because – Dr Maxwell, I have already mentioned about that, you know, one of the symptoms will be headache and so – so I was just – I wasn’t really much concerned about that, you know, I was trusting the doctor on that.” 16 [23] Dr Ohlrich commented that the detail of the headaches in the Calvary hospital notes given by Mr Chopra at the time of admission were to the same effect. 17 A difficulty arises from what appears to be inconsistency in the description of the headache because some medical experts gave opinions on the basis that the headaches were of a severe nature, others on the basis that it might be characterised as mild to moderate. On any view the headache was not of a migrainous type. 18 [24] The only other symptom which the plaintiff experienced was a transient episode of blurred vision. This occurred in the daytime when she was driving her car. She stopped the car and the vision recovered and she continued on her journey. She told her husband of this episode but did not consult any medical practitioner. Apparently she did not associate the episode with the taking of the pill. This 13 Ex 2 [52]-[54] 14 Ex 2 [56] 15 Transcript 34/18 16 Transcript 54/40-55/2; See also 76/10-42 “It was not an abnormal headache”. 17 Transcript 229/10 18 Transcript Levich 230/30-50; Kable 225/30; Boyce 177/45. -- 6 of 17 -- 7 incident apparently happened on day 7 after her commencement of the pill, 19 that is on 8-9 October. [25] On 10 October 1995 the plaintiff suffered an extensive midline cerebral artery ischaemic stroke on the left side and she was taken to the Calvary Hospital at Cairns. On arrival she had a Glasgow Coma score of 8. She remained unconscious for two and half days. Blood tests taken at the time showed she had a protein S deficiency which predisposed her to a tendency to form clots. The plaintiff had no clinical manifestation of this condition for which, because of its rarity, no screening was usually carried out. 20 Dr. Lim expressed the view that this deficiency was a major contributing factor. The diagnoses lay between an embolic stroke or thrombotic stroke. He favoured the latter. The plaintiff’s low protein S level would not have been uncovered routinely unless she had a tendency to clot elsewhere resulting in a screening test being advised. If she had fallen pregnant she would have been at high risk of suffering a thrombotic stroke as well. [26] It is common ground that it was entirely appropriate for the defendant to prescribe the pill. The plaintiff was a healthy woman with no past history of any significant illness and no history at all of thrombotic episodes. She presented with none of the conventional risk factors such as hypertension, smoking, diabetes, obesity or familial history of vascular problems. [27] There is no suggestion that any further testing ought to have been undertaken prior to prescribing the pill. The major risk factor of protein S deficiency is a rare phenomenon (less than 1% of the community) for which there is no justification for routine screening. 21 The risk factor of a female suffering a stroke as a consequence of taking the pill is 1 in 24,000 22 . The issues [28] The parties do not identify the factual and legal issues in precisely the same way. The plaintiff suggests the resolution depends on inquiries as to the appropriate advice the defendant was required to provide; whether that advice was given; whether the plaintiff would have returned for medical treatment had she been so advised; and if so, whether the stroke could have been averted or its effects significantly reduced. The defendant identifies the issues as being whether the advice was appropriate in the circumstances; whether the advice was causally deficient in the sense of being a failure to warn of a material risk; whether the plaintiff acted reasonably in not returning to the defendant given the symptoms she complained of and whether further medical treatment at that time would have prevented the stroke or reduced its severity. [29] Thus it is seen that, whilst there is some difference between the parties, the significant issues in broad terms, are the questions of breach of duty, particularly the duty to warn, causation and damage. I shall deal with the issues under those headings. Breach of duty 19 Report Dr Lim ex 1 doc 3, p 1 20 Report Dr Lim ex 1 doc 3, p 2 21 See per Dr Ulrich – ex 10 p 8 - There is no indication for screening of patients for hyper coagulable states before prescribing the pill. 22 Per Dr Baker – ex 12 p 3 -- 7 of 17 -- 8 [30] The duty of a medical practitioner to exercise reasonable care and skill in the provision of medical advice and treatment is a single, comprehensive duty. The requisite standard of care will vary according to whether it is a case involving diagnosis, treatment or the provision of information or advice. Part of that duty is 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 be reasonably aware that the particular patient, if warned of the risk, would be likely to attach significance to it. Rogers v Whittaker 23 . [31] The warning with which this case is concerned and which is most relevant to the subsequent events relates to the symptoms of headache. This symptom was the first possible indication of the impending stroke. Whether it was in fact an indicator remains a matter of debate. The terms of that which the plaintiff contends in the Statement of Claim to be the appropriate warning (see para 2 hereof) were not adopted precisely by the general practitioners called on behalf of the plaintiff. Dr Stanton said the terms of the warning he would give when prescribing the pill varies according to the history of the patient and the interaction with the patient when discussing the common side effects. He would advise that common side effects included headache 24 but an unusually severe headache could be a serious side effect 25 . He would leave the patient on the basis that “if you get a headache which you are not happy with or which persists for a day or two come back and see me please” 26 . Dr Stanton detailed in evidence the investigative course he would follow if a patient did present with headache soon after commencing to take the pill. He said he would advise immediate cessation of the pill and prescribe other tests. He was referred to the terms of the instructions for immediate discontinuance of the medication27 . That instruction suggests cessation on the occurrence of a migrainous headache or more frequent, unusually severe headaches. His warning included a reference to the common side effect of headache and a warning that the pill can have more serious side effects, one sign of which is an “unusual, particularly bad headache” 28 . [32] Dr Stanley-Davies relevantly said he would warn against the potential common side effects which includes nausea, vomiting, weight change, vaginal bleeding, tenderness, migraine, depression etc. Specifically in relation to headaches, he said he would not advise a patient to cease taking the pill should she develop headaches 29 but would advise her to seek medical advice should the headaches be prolonged or unresponsive to simple analgesics, - namely, should they persist beyond 48 hours. Dr Stanley-Davies said he makes a distinction between mild side effects which are common and acceptable and potential severe side effects which would require review by a medical practitioner. 30 [33] Dr Kable, who was called by the defendant, agreed that there was a need to warn patients about the common potential side effects referred to above. His practice was 23 (1992) 175 CLR 479 at pp 489-490 24 Transcript 99/50 25 Transcript 100/10 26 Transcript 101/10-15 27 Ex 4 p 26 28 Transcript 100/5 29 Report – ex 1 tab 7 – at pp 6-7 30 Transcript 121/10-25 -- 8 of 17 -- 9 to provide patients with a trial packet and give the warning “Should you have any problems at all, that bother you, that you feel are out of the ordinary, then get back in touch with me.”31 If the intended use was for a short term he would give basically the same warning but might add a rider that the symptoms are “most unlikely to occur”. 32 [34] The defendant’s normal practice was to couch a warning in the terms to which I have referred in para 18 above, which was simply to identify the common non- serious side effects as well as advising of the more serious potential side effects, she would then add the routine advice “if you have any problems with the medication, either ring me or come back”. 33 [35] The defendant did not warn the plaintiff of the more serious potential side effects because in her view the short duration of the medication the risk of serious side effects “was negligible”. 34 [36] The headaches suffered by the plaintiff as variously described by her are difficult to characterise. 35 In her affidavit she said the headaches “were not of throbbing intensity”. The fact that she did not take even simple analgesics, apart from one occasion, also suggests the headaches were not intense. The fact that the headache persisted for a number of days would mark it as unusual for the plaintiff who did not commonly suffer headaches. In her evidence she described the headaches as “very severe” but reducing during the day. As I have already observed the headaches could not be regarded as of a migrainous type. It seems to me the best characterisation of the headaches would be a persistent, mild to moderate headache. Consequently the headache does not fit the description referred to in para 4C(i) of the Statement of Claim of “migrainous headache or more frequent occurrence of unusually severe headache”, but it may well fit the description in para 4C(iii) of a “headache or pain which did not go away” 36 . For the purpose of considering the scope of the duty it does not matter if the subsequent headache was in fact “severe” which is the premise upon which both counsel proceeded when testing the opinions of the experts. [37] The only general practitioner whose warning would specifically capture the prolonged headache, as I have found it to be, would be Dr Stanley-Davies. He would not, however, have advised the cessation of the pill in that circumstance, but rather for the patient to seek a medical review if the headache persisted for 48 hours. [38] How does a medical practitioner warn about the onset of future headaches being a serious side effect as opposed to a common non-serious one? It is unlikely that such a warning can be framed in anything other than general terms. The terms identified in the Statement of Claim “unusually severe” or “headaches or pain which did not go away” do not seem to me to be anymore helpful than the all-encompassing warning “if you have any problems” or “if anything worries you”. But what makes a warning in such terms effective is the drawing of a distinction between the innocuous side effects and those which indicate a potentially serious problem. In 31 Transcript 215/30 32 Transcript 215/58 33 Transcript 138/20 34 Transcript 138/15 35 Ex 2 [56] 36 See Amended Claim p 2 -- 9 of 17 -- 10 this sense the approach of Dr Stanley-Davies and of the defendant, in normal circumstances, would meet the level of effectiveness which I find is reasonably required. [39] The defendant concedes that she did not warn the plaintiff of the serious side effects and so the effectiveness of her warning was diminished. The purpose of the warning is to enable the patient to make an informal decision as to whether to undergo the treatment. A “failure to warn” case always involves a question whether the plaintiff would have acted differently if the relevant information had been provided. The positive mental link is a necessary link in the chain of causation. Morrison v Wong. 37 [40] If a warning had made that distinction between serious and non-serious, I have no doubt that the plaintiff would nonetheless have commenced the medication, such was her commitment to the undertaking of the programme. Even if warned of the specific risk of stroke, as identified by Dr Baker and referred to hereafter, I would not expect the plaintiff or a reasonable person in her position to attach significance to it. I am satisfied the plaintiff would have commenced taking the pill. The question remains whether such a warning would have prompted her to seek medical advice in a timely way and whether her doing so would have made any difference. [41] The transient visual disturbance was of only limited interest to medical practitioners and was, I find, of no particular significance to the plaintiff because of its fleeting duration and its being a single occurrence. The plaintiff herself did not relate that experience, either, to her having taken the pill or to the headaches and it is unlikely a warning made in terms of the Instruction booklet at p 26 would have triggered a response as a consequence of this single episode. [42] The defendant argues that the plaintiff, as an intelligent, university-educated woman, ought to have been aware that the headaches, as she described them, were beyond the type of headache referred to in the general warning, that her suffering was an abnormal symptom and that awareness ought to have caused her to seek further advice. The force of this argument rather depends on the appreciation one has of the severity of the headaches. If the headache was severe and prolonged, one would have reasonably expected that the plaintiff would have returned in accordance with the advice “to return if there are any problems”. If it was not severe, but merely prolonged, she may have been confused by the absence of a warning which differentiated between non-serious side effects and the serious ones. [43] The fact that the plaintiff put up with the headaches without taking analgesics or without making extensive complaint to her husband rather suggests that the plaintiff, for her part, believed that the headaches were the expected or common side effects. Even if the headaches were severe, as some medical experts have assumed, I find that this confusion resulted from the defendant’s failure when warning the plaintiff to distinguish between the non-serious and the serious side effects. Therefore, unless the material risk in the circumstances was so negligible, as to justify no specific warning about persistent headaches being required, I would hold that there was a breach of duty to warn. Was the material risk negligible? 37 Morrison v Wong 2001 NSWSC 304 (4 May 2001) at [120] -- 10 of 17 -- 11 [44] In this regard the defendant was aware, from the plaintiff’s medical history of the “Gift” programme, that the plaintiff had been exposed to high levels of oestrogen. There was some discussion attempting to define the difference in the risk between a 20 mg pill and the 50 mg pill. That discussion remains inconclusive. I am satisfied that the dosage in this particular pill was within the normal range and posed no undue risk. [45] The risk of stroke (1:24,000) referred to above encompasses long term users, as well as those with high risk factors. For short term users and ones without any undue risk factors (such as the plaintiff) the risk would, according to Dr Baker, “presumably… be less”. 38 Dr Baker is a senior consultant haematologist and the Director of the Thrombosis and Haemophilia Centre of Western Australia. He has undertaken extensive research in the areas of thrombosis and blood coagulation. In his report 39 , Dr Baker said “the catastrophic presentation of a stroke soon after starting the pill would be a totally unexpected and an extremely rare…event”. Certainly it is the clear opinion of the expert, medical witnesses that the risk was not of significance. Dr Livingstone, physician, described the risk of thrombosis usually needs “two or more factors to make incident significant … even then the incidence is probably less than 0.5% in pregnancy or on the pill”40 and “the absolute risk is very low… and is totally unpredictable in a perfectly well patient”.41 Dr Ohlrich said “the risk of stroke in association with the usage of the pill is extremely low…almost non-existent in those pills with an oestrogen content of less than 50 micrograms”. 42 He also expressed the view that “the risk of stroke in association with pregnancy through the IVF/GIFT procedure would have been extremely low but similar to any risk from the pill.” 43 In my view, whilst the appropriate warning for long term users would involve making the distinction between non-serious and serious potential side effects, the risk for a person in the position of the plaintiff would not. Causation [46] If contrary to this position that the material risk of a stroke was such as to require a warning I have come to the view that by the time the plaintiff sought medical advice and acted upon it, it was unlikely that the stroke could have been averted. The most favourable warning was to the effect that the plaintiff should seek medical advice if the headaches persisted for 48 hours. The end of this period would have been approximately seven days after the commencement of the pill. On the plaintiff’s presentation to a general practitioner a physical examination would have been undertaken and blood pressure measured as well a history taken of the nature of the headaches, severity, duration, ongoing and relieving features as well as associated features.44 But such an examination would have been unlikely to reveal any signs suggesting hyper-coagulability or other signs prodromal of stroke. Whether advice would have been given to cease the pill is a matter upon which the medical practitioners have disagreed. Some practitioners said the pill would have been stopped as a matter of course, others took the view that it would not have been. 38 Transcript 192/23 39 Ex 12 p 4 40 First report ex 9 p 2 41 Second report – ex 9 p 2; See also transcript 154/5 42 Ex 10 – second report – p 1 43 Ex 10 – second report – p 5 44 Report Dr Lim ex 1 tab 4 -- 11 of 17 -- 12 Further inquiries may have been made, to determine the cause of the headaches and, particularly, as to whether they responded to analgesics. [47] The plaintiff and Mr Chopra said that if the plaintiff was told to cease taking the pill she would have done so. The plaintiff, I accept, had a high respect for medical practitioners and was a compliant patient. I find that she would have responded to any such advice if given. [48] The defendant said she would have recommended cessation of the pill if the plaintiff’s complaint was of “very severe headaches” and if she could find no other explanation for the headaches. 45 Such a hypothetical visit would have occurred before the plaintiff experienced the transient visual disturbance. It is impossible to establish what clinical signs would have manifested themselves to an examining practitioner or what other symptoms, if any, would have been “drawn out” from the plaintiff. Certainly the evidence before me does not identify any symptoms other than those referred to above. Dr Livingstone did not consider that the headaches would have been the only presenting feature if there was an evolving thrombus46 . Dr Baker said that “it is extremely uncommon that headaches would proceed for days [before] the onset of an acute, ischaemic stroke”. 47 In fact the nature of the stroke was, in his opinion, “an acute closure of the artery” signs of which, therefore, would not develop “over weeks” 48 . Such signs, when detectable, would relate to the function of the brain where the blood was stopped. Dr Ohlrich said, because of the temporal relationship, he would have recommended that the pill be stopped if there was no good reason for its continuance 49 but that he would not have regarded the headache as a premonitory symptom for the stroke – and that it was an “extremely unlikely” indicator. 50 [49] In weighing all these matters I have come to the view that it is unlikely that there would have been sufficient signs of the impending stroke for it to have been predicted at the stage of any notional medical consultation undertaken in compliance with the most favourable warning. [50] The mechanics by which the stroke occurred is the subject of a difference of opinion particularly between Dr Boyce, the neurologist, and other experts. Dr Boyce, in his report, stated that the stroke was precipitated by the pill because it “may have had something to do with thrombotic events in the blood. It may also have something to do with intracranial hypertension” and that ceasing to take the pill would have prevented the stroke. 51 Dr Boyce was unable to suggest any clinical signs which, in the two or three days prior to a stroke, would be premonitory of its happening. 52 He conceded that the cascade of events which leads to a stroke is not fully known, nor is the mechanism to stop them.53 Dr Boyce’s approach appears to have been based on the pill having caused a migrainous headache, a vascular symptom which could be prodromal of the stroke. Central to this theory is the classification of the headache as being of a migrainous type and Dr Boyce agreed that the description of 45 Transcript 139/10 46 Transcript 158/30 47 Ex 12 Second report p 1 48 Transcript 211/30-40 49 Transcript 232/10 50 Transcript 232/50 51 Report at p 4 – ex 1 tab 8 p 4 52 Transcript 173/40 53 Transcript 174/20 -- 12 of 17 -- 13 the plaintiff’s headache was not typical. 54 As to the alternative, the pro-thrombotic cause and effect, Dr Boyce acknowledged that this was not his field.55 [51] Dr Ohlrich considered that the vaso-spasm theory advanced by Dr Boyce was “almost untenable”. 56 He gave a number of reasons for this: the nature of the headaches was not migrainous; their duration did not relate to the onset of stroke, which is of sudden onset without premonitory signs; and there was no history of migraine either before or since the stroke. Dr Ohlrich therefore supports the diagnosis of acute cerebrovascular thrombosis made by Dr Lim at the time of admission and the explanation provided by Dr Baker. [52] However, even if the pill were to have been stopped as a matter of caution or because of the possibility it might have had some association with the headaches, I find that the cessation of the pill would not have prevented the stroke, because it would not have had an immediate effect on the coagulable state of the plaintiff’s blood. Dr Baker in cross-examination detailed the scientific basis57 for this phenomenon: the level of oestrogen in the blood would be reduced by cessation of the pill but there would be no immediate effect on the coagulable state. It is unnecessary to set out the detail of this process. I accept his opinion that the increased coagulable state of the blood resulting from the taking of the pill would take weeks, rather than days, to return to the patient’s pre-medication baseline. [53] As a consequence, in the hypothetical situation based upon the most complete warning, if the plaintiff had returned to the general practitioner some six or seven days after commencement of the pill, it is unlikely any signs prodromal of a stroke would have been present. But, in any event, the hyper-coagulable state of the plaintiff’s blood would have remained undetected, thus continuing her predisposition to the acute episode. [54] I am satisfied on the whole of the evidence that the opinions of Drs Baker, Ohlrich and Lim as to the cause and effect of the stroke are to be preferred. I would therefore, on the balance of probabilities, make the following findings:- (i) The headaches were not of a migrainous type, were not the consequence of vaso-spasm and were not prodromal of the stroke. (ii) The plaintiff did not have any symptoms nor did she exhibit any prodromal signs of the impending stroke. (iii) It was unlikely that any symptoms or signs premonitory of the stroke would have been observed at the time of any hypothetical, medical examination after the onset of the headaches. (iv) The cessation of the pill would not have altered the coagulable state of the plaintiff’s blood or the cascade of events leading to the stroke. (v) The developing stroke could not have been anticipated, nor could it have been prevented or reduced in its severity. 54 Transcript 177/20-50; 187/40 55 Transcript 188/30 56 Transcript 229/8 57 Transcript 197/40-199/50 -- 13 of 17 -- 14 [55] It follows that I am not satisfied that any failure to warn of this material risk or indeed of a failure to advise the plaintiff to seek further medical treatment in the prevailing circumstances was causative of the plaintiff’s injury. [56] I would therefore dismiss the plaintiff’s claim. Damages [57] I turn now to the assessment of damages. [58] The plaintiff is seriously disabled with right side hemiplegia, manifested by severe loss of movement and strength in her right arm, right shoulder and right leg. She has loss of feeling in the right side of her face with restriction in the movement of some muscles. She has decreased ability to eat food and with that she suffers associated dribbling. She has referred in her affidavit to the difficulties which she has with her right arm which flops about and is comparatively useless to her. She has expressed the wish that someone would cut it off. [59] The plaintiff suffers significant, intellectual deficits, resulting in a severe loss in her ability to communicate, which affects both her social interaction and her employability. Before the incident the plaintiff was able to communicate, both orally and in writing, in her mother tongue Punjabi, and in Hindu and English. Now she has virtually no capacity for effective communication in a language other than Punjabi. With very few Punjabi speakers in her present residential setting her social interaction has been greatly curtailed. [60] She suffers with depression which at times has led to suicidal ideation, particularly when she first became aware that there was no likelihood of improvement in her physical limitations. Such action does not appear likely now, but the depression remains. This is referred to as a justification for more frequent interaction with members of her family in India with whom she is able to communicate and by whom her emotional needs are best met. [61] Prior to the incident, the plaintiff was an able bodied 31 year old woman with tertiary education. She engaged in part-time, casual work as a chef. She would have been available for fulltime work, but subject to her success in having a child or children. She shared a number of interests with her husband, with whom I have already found she had a close relationship. They enjoyed many activities and usually took one trip abroad each year. [62] The plaintiff who is now 38 years of age has a potentially reduced life expectancy by reason of having an increased risk of further stroke or heart attack because of her blood status and some structural defect in her heart.58 Dr Lim, who was particularly questioned on this topic, was not able to quantify the potential reduction. According to the Australian Life Tables – 1997-9 – the life expectancy of a 38 year old female is 44.93 years. Ordinarily I would adopt a figure of 40 years as a reasonable life expectancy having regard to these matters, but there is also the other uncertain prospect that the plaintiff may have, as a result of pregnancy, suffered an adverse reaction because of the protein S factor in her blood. No medical practitioner could say whether this would happen nor whether there was any 58 Transcript pp 150-1 -- 14 of 17 -- 15 percentage quantification of the potential risk of its happening, but it remains a factor to be taken into account when considering life expectancy. [63] The severity of the physical, intellectual and emotional loss for this plaintiff, coupled with the fact that she has lost any chance of having children or of advancing in her trade, leads me to make an allowance for general damages of $140,000 for which the sum of $50,000 should attract interest for a period of 7.5 years – an amount of $18,750. Past economic loss [64] The evidence discloses that the plaintiff earned an average of $7,730 in each of the four years prior to the incident. I expect that, had she fallen pregnant in the course of the IVF programme, she would have ceased to work for at least five years. If she did not fall pregnant, it is likely she would have gained more hours of work even perhaps approximating to fulltime employment. The defendant argues for a 50% deduction on account of the contingency of that pregnancy. Having regard to the prior unsuccessful attempts on an IVF programme this, to my mind, is too large a discount. Ultimately, the allowance must involve an assessment of the loss of a chance. Taking account of her past earnings records, her potential for fulltime employment and the prospect of pregnancy and the raising of children, I will make an allowance of $40,000 for the past period. The interest on that sum at 5% for 7.5 years is $15,000. Future economic loss [65] Future economic loss is affected by similar uncertainties about whether the plaintiff would have had a child or children and must also take account of the risk that pregnancy may have had adverse effects. I expect that, in the event the plaintiff were to have been successful in having a child, she would have at some time engaged in part-time work, which would have been for the greater part of her potential working life. If she did not have children, I expect she would have moved to full-time employment. The compromise between the two scenarios does, to my mind, suggest a primary calculation using $250 per week over a 20 year period (multiplier 666). This calculation should be rounded off to an allowance of $160,000. Superannuation [66] The superannuation obligation on an employer for the major part of the past and future period is 9%. The allowance, therefore, under this heading should be $18,000. Past and future care [67] The allowance for past care and interest thereon for five years have been agreed in the sums of $105,800 and $26,460 respectively. [68] For the future, the weekly cost of care is agreed at $334. The remaining issues between the parties relate to the period over which the allowance should be made and what discount interest rate should apply to it. Taking into account all the contingencies of the plaintiff’s life expectancy including her blood status, heart defect and the risk to her of thrombosis if she fell pregnant, the appropriate period -- 15 of 17 -- 16 over which care costs should be considered is, in my view, 35 years. For much of this period, most services would be provided by Mr Chopra or members of the plaintiff’s family. The discount rate in those circumstances would be 3%. At the same time, if funds were available, I would expect some care would be acquired at commercial rates for which the appropriate discount rate is 5%. I will not attempt to make an artificial division between the two components, but I will make a global assessment in the sum of $320,000. Future medications [69] The cost of medication has been averaged to show the cost of $25 per week. Whether this level of expenditure will be necessary for the rest of the plaintiff’s days does not appear to have been specifically addressed. Some allowance should be made for future medication, but this will be done on the basis of a reducing requirement over time and with the expectation that some medications would have been required, even if she had not sustained this injury. I will allow the sum of $10,000 Special damages [70] Special damages, apart from some travel costs are agreed in the sum of $36,974.09. Airfares [71] The plaintiff seeks an allowance of $5,000 for additional airfares directly consequential upon the receipt of her injuries. The basis of the claim is that the plaintiff needs to go to India periodically for family support and for care. The defendant points to the fact that the plaintiff travelled to India virtually each year prior to her suffering the stroke, that there is now no additional expense for airfares and that her need for support can be met by simply staying longer with her family. The plaintiff is, as I have mentioned, seriously disabled. Whilst at present she is able to make the trip to India without assistance this may not always be the situation. Moreover her injuries have left her in a vulnerable, emotional state and with that a likelihood that her needs may not be met by the one trip to India each yeart. In my view the claim is a modest one, having regard to the duration of her life expectancy and the cost of airfares to India. It is reasonable to make the allowance of $5,000. [72] In summary then I would make the following allowances:- General Damages $140,000.00 Interest thereon $ 18,750.00 Past economic loss $ 40,000.00 Interest thereon $ 15,000.00 Future economic loss $160,000.00 Loss of superannuation benefit $ 18,000.00 Past care $105,800.00 -- 16 of 17 -- 17 Interest thereon $ 26,460.00 Future care $320,000.00 Special damages $ 36,974.09 Additional air travel $ 5,000.00 $885.984.09 [73] I assess the plaintiff’s damages in the sum of $885,984.09. Orders [74] I make the following orders:- 1. The plaintiff’s claim is dismissed. 2. Judgment for the defendant against the plaintiff. 3. The plaintiff pay the defendant’s costs (including reserved costs if any) to be assessed on the standard basis. -- 17 of 17 --