Arkinstall v Jenkins [2001] QSC 421

SUPREME COURT OF QUEENSLAND CITATION: Arkinstall v Jenkins [2001] QSC 421 PARTIES: JANNEAN MARIE ARKINSTALL (plaintiff) v ANDREW MALCOLM JENKINS (defendant) FILE NO/S: S 1482 of 1998 DIVISION: Trial Division DELIVERED ON: 9 November 2001 DELIVERED AT: Brisbane HEARING DATE: 2 August 2001 JUDGE: Douglas J ORDER: Judgment for the plaintiff against the defendant in the sum of $30,876. CATCHWORDS: TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DUTY OF CARE – SPECIAL RELATIONSHIPS AND DUTIES – PROFESSIONAL PERSONS – whether the plaintiff was informed as to her choices for plastic surgery on her breasts. TORTS – NEGLIGENCE – APPORTIONMENT OF RESPONSIBILITY AND DAMAGES – GENERALLY – whether the plaintiff could be compensated for pain and suffering caused by an unsatisfactory result with respect to a breast augmentation procedure. PROFESSIONS AND TRADES – MEDICAL AND RELATED PROFESSIONS – MEDICAL PRACTITIONERS – LIABILITY IN TORT – RELEVANT PRINCIPLES – DUTY TO WARN OF RISKS – PARTICULAR CASES – plastic surgeons and their duty to fully inform patients of their options for breast surgery. COUNSEL: T C Somers for plaintiff D H Tait for defendant SOLICITORS: Creswick Lawyers for plaintiff Blake Dawson Waldron for defendant. -- 1 of 4 -- 2 [1] DOUGLAS J: The plaintiff is a woman in her early thirties who, after having given birth to, and breast fed for some considerable time two children, observed that her breasts were sagging, drooping and lacking in shape. She therefore consulted her general practitioner who advised her to consult the defendant, an expert in plastic and reconstructive surgery. [2] In or about May 1995 the plaintiff attended the defendant’s surgery to obtain his professional advice with respect to her breasts. She says that at that consultation the defendant agreed with her that her breasts were drooping and that there needed to be something done. She said that at the time they talked about only a reduction or an enlargement. I find that it was she who first suggested to the defendant the alternatives of a reduction or enlargement surgery. I also find that at no time at that consultation was the procedure known as a mastopexy mentioned to her. The plaintiff said, and I accept, that she told the defendant that she did not mind if she had a reduction or an enlargement, she just wanted the best result. She informed the defendant that she had been a size 10D in the past and from breastfeeding the size had reduced to a 10C. [3] The defendant carried out a physical examination of the plaintiff, including a calculation of her height and the width of her back. He explained to her that with reduction surgery there would be a lot more scarring and also explained that with her height and size she could hold an enlargement and that there would be, with that, less scarring. She says, and I accept, that he advised her that that was the procedure she should “go with”. [4] There was a second consultation before the actual surgery. On that occasion the plaintiff and the defendant talked about textured or smooth implants, and where the implants should go (whether over or under the muscle). She left that consultation with a requirement that she had to telephone back about whether she would have a textured or a smooth implant, and that was her decision to make. [5] It should be noted that after the first consultation the defendant did hand to the plaintiff an information booklet about the type of surgery envisaged, which became exhibit 8. [6] On the second occasion the defendant explained to the plaintiff that the purpose of the breast enlargement surgery was to give her a lift and make her breasts like they were before. When questioned as to whether she wished to have bigger breasts than she had before she explained that she did not want that to occur and that she did not at any stage specifically ask for a breast enlargement. She said that she had been a 10D, that she was now a 10C which was large enough in itself, and that she was drooping. She explained that aesthetically she was drooping and that she “wanted a lift” and “that I wanted my breasts full because it was drooping from breast feeding” (sic). [7] The plaintiff clearly went to the defendant’s surgery with the view that only two types of surgical procedure were available, those of reduction and enlargement. It became clear at the trial that perhaps the best procedure to undertake upon her would have been the procedure known as mastopexy. This procedure was explained by the defendant as follows: -- 2 of 4 -- 3 “The skin is removed circumferentially around the nipples so that the nipple can be raised to a higher position and then the skin is removed from beneath the nipple as well so the breast is tightened and the substance of the breast is reshaped and draped on the chest wall so that there is a more flattering appearance in terms of its shape, but is associated with the scars ... mentioned earlier.” [8] When taxed particularly about the scars the plaintiff said that she was not concerned about the scarring because she felt they would heal in time. What she was concerned about was the size and texture of her breasts. She expressed the view that she was unconcerned about scarring because “it would have healed”. [9] The plaintiff appeared to me to have a clear recollection of both consultations with the defendant. On the other hand the defendant had no recollection of the plaintiff at all. He did have his notes taken on both occasions which are skimpy to say the least. His entire recollection of the matter must come from those notes. There is no mention of a discussion of the procedure known as mastopexy in any of those notes. He did say that he probably would have mentioned it once. I find that he did not explain, adequately or at all, what is entailed. [10] After the operation, and now, the plaintiff describes the condition of her breasts as still being saggy and droopy. From the photographs tended at the trial it is apparent that that is the case. She did not achieve the result that she wished to achieve, namely that her breasts be lifted and be made full. Dr Cockburn, who gave evidence as an expert, described the result achieved by the defendant as a good result in terms of what the defendant performed. However, I find that had the defendant properly explained to the plaintiff that there was a third procedure, namely that of mastopexy available to her, she would have undergone that procedure rather than the enlargement procedure which was performed. I find that she would not have been concerned about the scarring which would have resulted from that procedure. [11] The procedure was elective surgery. It should have been apparent to the defendant that when the plaintiff was speaking of reduction or enlargement surgery she was indicating that that was the state of her knowledge of the procedures which were available to assist in the correction of the sagginess and droopiness of her breasts. It should have become apparent to him that he should explain to her the third alternative of a mastopexy, or indeed no surgery at all. The plaintiff was entitled to be so informed by the defendant as to be able to make an informed choice as to whether or not to undertake the procedure and, if so, which procedure from the alternatives to which I have referred. From the evidence it is apparent that had the mastopexy procedure been explained to the plaintiff she would have undergone that, notwithstanding the attendant scarring, and that it would more likely than not have produced the result with respect to her breasts which she wished to achieve from consulting the defendant. The defendant, additionally, failed to properly warn the plaintiff that the augmentation procedure which was undertaken may not have the effect of reducing the sagginess and droopiness, but would, as it did, produce breasts which were still somewhat saggy and droopy but “fuller”. [12] It follows then that the defendant was negligent and in breach of duty. -- 3 of 4 -- 4 [13] From the evidence of Dr Hodgkinson it is apparent that there is a good chance that the plaintiff, when she undergoes mastopexy surgery, will eventually achieve breasts of the type she wished to have when she first consulted the defendant. She will, of course, have the attendant scarring which she says will not worry her because, she says, it will heal. Had the defendant carried out this procedure she would have had that scarring anyhow. Therefore the level of damages in this case cannot be high. The plaintiff is to be compensated for the pain and suffering and loss of amenities, and her appearance for the period between the operation and now, being approximate to the time when it can be expected that the second operation will be performed. [14] Further, the plaintiff has had some disruption in her personal relationships in that she is embarrassed about her appearance. The state of her breasts may have, to some extent, caused the breakup of the relationship between her and the father of her second child. In my view a proper amount to allow for that head is $20,000. That figure should include interest. The cost of the failed surgery with the defendant was $5,000. However, she would have undergone surgery in any event. Therefore it follows that she cannot recover both the cost of that surgery and the cost of the restorative surgery. The cost of the restorative surgery is assessed by Dr Hodgkinson at some $18,5000, including implants to fill the space caused by the current implants, and, doing the best I can with Dr Cockburn’s evidence, at some $7,000 to $8,000 by that doctor. Dr Hodgkinson struck me as a person who catered for the wealthy and vain in one of the eastern suburbs of Sydney. The charges described by him do not, on the evidence, seem to reflect the cost of such procedures in Queensland. However, there may be a meeting ground between the two. Doing the best I can, and taking into account the fact that the original $5,000 would have been paid anyhow, I allow the plaintiff $9,000 under this head. [15] There is a claim for psychological therapy being twelve sessions at a total of $1,876. This was not seriously contested at the trial and should be allowed. [16] In the circumstances I give judgement for the plaintiff against the defendant in the sum of $30,876. I shall hear submissions as to interest and costs. -- 4 of 4 --