Erickson v Maguire & Ors [2004] QSC 227

SUPREME COURT OF QUEENSLAND CITATION: Erickson v Maguire & Ors [2004] QSC 227 PARTIES: FRANK WILLIAM ERICKSON (plaintiff) v ERROL MAGUIRE (first defendant) E J MAGUIRE PTY LTD (ACN 010 404 323) (second defendant) CORPORATION OF THE SISTERS OF MERCY FOR THE DIOCESE OF TOWNSILLE (third defendant) FILE NO/S: SC 7272 of 2002 DIVISION: Trial Division PROCEEDING: Trial ORIGINATING COURT: Supreme Court Brisbane DELIVERED ON: 5 August 2004 DELIVERED AT: Brisbane HEARING DATE: 14, 15, 16 July 2004 JUDGE: McMurdo J ORDER: That there will be judgment for the defendants CATCHWORDS: PROFESSION AND TRADES – MEDICAL AND RELATED PROFESSIONS – LIABILITY IN TORT – DUTY TO WARN OF RISKS – where plaintiff discussed his hernia operation with his surgeon – where open and laparoscopic surgery are alternatives – where alleged that the surgeon gave a “guarantee” that the plaintiff would return to work in four weeks if he undertakes laparoscopic surgery – whether guarantee was given – whether there was a failure to warn of risk of damage PROFESSION AND TRADES – MEDICAL AND RELATED PROFESSIONS – LIABILITY IN TORT – PARTICULAR CASES – where after the hernia operation the plaintiff experienced severe pain – where alleged that pain was due to size of mesh used, its position and/or the inappropriate placement of tacks – where expert evidence given of where tacks or staples should or should not be placed – whether operation was negligently performed Trade Practices Act 1974 (Cth) Fair Trading Act 1989 (Qld). -- 1 of 18 -- 2 Rogers v Whitaker (1992) 175 CLR 479, cited Rosenberg v Percival (2001) 205 CLR 434, cited COUNSEL: G R Mullins for the plaintiff D K Boddice SC for the defendants SOLICITORS: Ruddy Tomlins & Baxter (Townsville) for the plaintiff Flower & Hart for the defendants [1] McMURDO J: The plaintiff, Mr Erickson, is now a 67 year old man, having been born on 11 December 1936. Some seven years ago, he underwent surgery to repair a hernia. The surgeon was the first defendant, Dr Maguire. Mr Erickson’s case is that the surgery caused injury to a nerve or nerves in the region of his groin, which still causes him pain and incapacity. Further, he says that in consequence of the pain and incapacity, he has developed a psychiatric condition of major depression. In consequence of these matters, he claims to have been unable to return to his work as a self employed tiler. [2] He makes two complaints against Dr Maguire. The first is that he alleges Dr Maguire “guaranteed” that he would return to work within four weeks of the operation. He says this amounted to a failure to warn of the risk of damage to the nerves by the type of procedure which he underwent, which was laparoscopic surgery. He claims that had he been warned of the risks and not been assured that he would return to work within four weeks, he would have had the hernia repaired not by the laparoscopic method but by what is described as the “open” method. Secondly, he alleges that Dr Maguire negligently performed the laparoscopic procedure, thereby causing the damage to the nerve or nerves. [3] Dr Maguire denies each of these claims. He denies that he gave any guarantee that the surgery would be problem free and that Mr Erickson would return to work within four weeks, but he says that he did tell Mr Erickson that he could expect to return to work within a month. He denies that there was any error in the performance of this procedure. He agrees that Mr Erickson suffered pain in his groin, thigh, and hip after the procedure, but he disputes that any problems from the procedure have been as persistent and extensive as Mr Erickson contends. [4] The proceedings are brought against Dr Maguire and a company through which he provided some professional services. The pleaded causes of action are negligence and, in relation to the alleged failure to warn, breach of contract and contraventions of the Trade Practices Act 1974 (Cth) and the Fair Trading Act 1989 (Qld). Before the surgery [5] By 1996 the plaintiff was a 60 year old self employed tiler in Townsville. He had worked there for about 20 years and was constantly in work, although his income in any year might vary with conditions in the building industry. In that year he began to experience a lump in his left groin which his general practitioner correctly diagnosed as a hernia. Over the next few months the hernia grew in size causing Mr Erickson difficulties in his work. For a while he wore a hernia brace but this unduly -- 2 of 18 -- 3 restricted his movement at work so he went back to see his general practitioner in about March 1997. By this stage the hernia was also causing him pain. [6] His general practitioner referred him to Professor Donnelly whom he saw on 6 May 1997. Professor Donnelly said that he would perform the hernia repair in the Townsville General Hospital and that Mr Erickson would be put on a waiting list for that procedure. Mr Erickson was not prepared to wait, and although he was uninsured, he decided to pay for the surgery so that his work was not affected for any longer than was necessary. He said, and I accept, that he then had a large amount of work on offer, including one job which was worth in the order of $250,000. He had his general practitioner refer him to a private surgeon, Dr Hack. However, Dr Hack had just left for a month’s leave, and as Mr Erickson was not prepared to wait for his return, he went back to his general practitioner and obtained a referral to Dr Maguire. Mr Erickson called Dr Maguire’s rooms to make an appointment and he was told that Dr Maguire could see him on 29 May 1997. This was not soon enough for Mr Erickson, who succeeded in moving forward his appointment to 22 May 1997. Mr Erickson’s urgency was not due to any extreme pain or to any apprehension that his hernia required immediate repair such that a delay of weeks or even days was unacceptable. The urgency, I find, was due to his wanting to be fully fit to undertake the work then on offer. [7] Mr Erickson says that before he saw Dr Maguire on 22 May, he spoke to two friends, each of whom had had a hernia repair performed by Dr Maguire and by the laparoscopic method. Mr Erickson claims that he was told by each man that his repair had been unsuccessful, from which Mr Erickson says that he concluded that the better method was the so called “open” method. [8] After Dr Maguire had examined Mr Erickson, he told him that his hernia was quite large and that it would have to be repaired straight away. It is common ground that there was then a conversation as to the alternative methods of repair, being the open and laparoscopic methods. According to Mr Erickson, he told Dr Maguire that he would like to have the open method and that Dr Maguire said: “No … I don’t do open surgery any more … I do laparoscopic surgery.” I do not accept that Dr Maguire said this. According to his evidence, more than half of the hernia operations he conducts are by the open method, which I accept. Dr Maguire could not be innocently mistaken about that. And as Dr Maguire performed both types of hernia repair, it is unlikely that he would assert otherwise to Mr Erickson. It is common ground that Dr Maguire described to Mr Erickson the essential differences between the open method and the laparoscopic method, and that Dr Maguire told him that there was an important advantage in the laparoscopic method in that the period of recuperation before a person such as Mr Erickson could return to work was much shorter. Mr Erickson says that the comparison Dr Maguire made was 6-8 weeks recuperation under the open method, and about four weeks if the laparoscopic method was used. According to Dr Maguire, he told Mr Erickson that it generally takes six to eight weeks to recover from the operation under the open method, but that under the laparoscopic method patients generally get back to work earlier and as a tiler he could be expected to return to work within a month. -- 3 of 18 -- 4 [9] As would be expected, Dr Maguire does not have a complete recollection of everything which was said. To some extent, his version is according to his usual practice, i.e. he said that certain matters were probably discussed because it is his invariable practice to do so. However, he says that he has a specific recollection of discussing Mr Erickson’s work as a tiler and of telling Mr Erickson that he expected that Mr Erickson would get back to that work within a month. The difference between their respective versions is that Mr Erickson says that Dr Maguire went on to give him what Mr Erickson describes as a guarantee that he would be back at work in that time. According to Mr Erickson, he told Dr Maguire of his concern from the experiences of his two friends and that in response, Dr Maguire said that “I don’t know who they were … (but) I’ll guarantee you will be back at work in four weeks with no problems”. Further, Mr Erickson says that Dr Maguire mentioned no “negative or risks associated with the surgery”. But according to Dr Maguire he gave no such guarantee and was adamant that he could not have done so because the outcome of the surgery could not be assured. Further, although he cannot specifically recall doing so, he believes that consistently with his general practice, he told Mr Erickson words to the effect that there were risks from the procedure, including complications involving pain. [10] Mr Erickson signed a consent form before leaving Dr Maguire’s rooms that day. The consent was for the performance of the operation by the laparoscopic method. Strong reliance was placed upon this fact in Mr Erickson’s case as in some way indicating that Mr Erickson’s version of events is correct. But in my view it is no more consistent with one version than the other. Dr Maguire admits that he recommended the laparoscopic method and he says that it was convenient for Mr Erickson to sign the consent as he left his rooms. There was a practical need for arrangements to be made at the hospital for a laparoscopic procedure in advance of the surgery. [11] Mr Erickson was issued an invoice by the company which is the second defendant for this visit to Dr Maguire’s rooms. I would accept that any advice which Dr Maguire gave on 22 May was given through this company, and that any contract for the provision of the advice was made with the company. Similarly I would accept that the company, as well as Dr Maguire, owed Mr Erickson a duty of care in relation to that advice. [12] Mr Erickson paid $2,400 to the hospital prior to his admission for this procedure. As an uninsured patient, this was substantial expenditure by a person who was not particularly wealthy. Again, this is consistent with Mr Erickson’s desire for the utmost expedition which he explained by a desire to be fully fit for work as soon as possible. After the surgery [13] Mr Erickson underwent the laparoscopic surgery on 27 May. He experienced severe pain immediately afterwards, especially in his groin and his left leg. He described the pain in his leg as if someone had “jabbed me with an electric cattle prodder”. He was discharged from hospital on 29 May and went home to bed. At -- 4 of 18 -- 5 that time he shared a house with Mrs Bolger, a woman some twelve years his senior and with whom he had been in a de facto relationship for about 20 years. Mrs Bolger called Dr Maguire the next day to arrange for Mr Erickson to be re- examined. She drove Mr Erickson to Dr Maguire’s rooms, and on arrival, Mr Erickson had difficulty making his way inside. Dr Maguire came out to assist Mrs Bolger in manoeuvring Mr Erickson into his rooms. This event is the subject of another discrepancy between the respective versions of the plaintiff and the defendant. According to Mr Erickson, Dr Maguire then kicked Mr Erickson’s foot, apparently as an angry response to Mr Erickson’s difficulty in using his legs. Dr Maguire strenuously denies this and says that he was doing what he went outside to do, which was to assist his patient to get into his building. Mrs Bolger, who was called in the plaintiff’s case, said in evidence-in-chief that there was no kick from Dr Maguire but some “nudging”. Especially having regard to her evidence, I reject Mr Erickson’s assertion that he was kicked by Dr Maguire. The relevance of this factual issue is unclear other than as showing the extent of Mr Erickson’s resentment from the outcome of this surgery and its potential to affect the reliability of Mr Erickson’s evidence. [14] Dr Maguire then examined him and said that he would have to be readmitted to hospital for a further procedure. In this instance, he was admitted to the Townsville General Hospital. He was readmitted on that day (30 May). [15] Dr Maguire then arranged for two nerve specialists to examine Mr Erickson. One thought that Mr Erickson’s pain could be due to some impact upon the obturator nerve, whilst the other specialist thought that the affected nerve was the femoral nerve. Dr Maguire undertook an exploratory procedure laparoscopically on 6 June 1997. [16] The original hernia repair involved the use of synthetic mesh to bridge the area through which the hernia had protruded. That mesh is fixed in place during the laparoscopic procedure by staples or tacks; in this case tacks had been used. An x- ray taken between the original operation and the exploratory procedure on 6 June, shows that there were eight tacks used in Mr Erickson’s case. The positioning of some of these tacks is the subject of Mr Erickson’s case that the surgery was performed negligently. In the exploratory surgery conducted on 6 June, Dr Maguire decided to remove two of these eight tacks. The two he selected were the one closest to the obturator nerve and that closest to the femoral nerve. In undertaking this second procedure, Dr Maguire says that he saw no tacks through any nerves or through any tissue that would give pain, but he removed these two just in case either was causing pain. This exploratory procedure also involved some interference with the mesh, which was put back in place with the use of four new tacks, which Dr Maguire says were placed well away from the obturator and femoral nerves. [17] There is no complaint against Dr Maguire about this second procedure. But he was challenged for the absence in his notes of the removal of these two tacks. I accept however that he did remove two tacks in this procedure. His explanation that he believed that this might provide some relief to Mr Erickson, in case these tacks were affecting the nerves, is inherently likely in view of the opinions which the nerve specialists had expressed. -- 5 of 18 -- 6 [18] Mr Erickson was discharged from hospital on 7 June 1997. At first he said that he was then pain free, but he reported some pain when seen by Dr Maguire on 18 June. According to Mr Erickson’s evidence, the exploratory procedure improved things to some extent, but he still had difficulty walking and bending down to put on his shoes, and he had pain in the left groin and down his left leg. He says that in August and September he attempted a tiling job and supervised some other jobs but he could not get back to work. He complained that he could not lift anything of weight and he had difficulty bending down. [19] On 20 October 1997, he was referred by his general practitioner to another surgeon, Dr Avramovic. Mr Erickson told him that he was still experiencing a shooting pain down his left leg with some difficulty with the control of that leg when attempting to flex the hip. An ultrasound of the abdomen coincidentally revealed what Dr Avramovic identified as an intrarenal aorta. In November 1997, Dr Avramovic reported that Mr Erickson had decided to undergo a further procedure to re-explore the repair to the hernia in an open fashion and to remove the mesh. Dr Avramovic then wrote that “I have certainly given no assurances that this will alleviate his problem but I cannot see any other possible solution”. That operation was performed on 6 February 1998. Dr Avramovic reported operative findings as follows: “The hernia repair was sound. The mesh was secured very widely around the site of the hernia extending from well above the anterior superior iliac spine laterally to well below the femoral canal inferiorly abutting the femoral vein and extending towards the obturator foramen. Tissue had grown into the mesh. The patient had an abnormal obturator artery.” [20] Three weeks after that procedure Dr Avramovic wrote that “there was some mesh that seemed to be impinging well below the femoral canal into the region of the obturator canal and may well have been accounting for his symptoms following a laparoscopic hernia repair”. He recorded that Mr Erickson continued to experience intermittent pains in the hypogastric region and the inguinal region just below his left inguinal incision. In March 1998, Dr Avramovic reported that Mr Erickson continued to make slow recovery but his main problem was then impotence, which Dr Avramovic has never attributed to the hernia repair. In May 1998 Dr Avramovic reported that his recovery “has plateaued (and) he is left with residual problems with back pain and difficulty bending over at work”. He also then identified an unrelated problem of vascular disease, which he described as a “quite severe disease in his right superficial femoral artery” and noted further that his aorta had increased in size from the scan six months earlier. He described this increase as a “rather alarming rate” warning that it might require elective repair. [21] In July 1998 Dr Avramovic wrote a report to solicitors acting for Mr Erickson. Relevantly to the present allegation that the tacks used to secure the mesh were wrongly located, Dr Avramovic wrote that “a CT scan demonstrated the multiple tacks used to secure the mesh but I could not determine whether or not any of these were responsible for the patient’s discomfort”. That appears to have been a CT scan conducted after the procedure on 6 June 1997 in which two tacks had been removed -- 6 of 18 -- 7 by Dr Maguire. He also there wrote that each of the laparoscopic and open methods of hernia repair have similar potential complications, including nerve entrapment or irritation. He suggested that a portion of the mesh may have been irritating a nerve or nerves and thereby causing Mr Erickson’s pain when he flexed his hip. He was somewhat equivocal as to whether the problems from the hernia repair were still affecting Mr Erickson’s ability to work pointing out that he had also developed vascular disease symptoms which would have that effect but which were unrelated to his hernia repair or subsequent treatment. Still, he said it was clear that Mr Erickson’s inability to flex his hip for long periods of time without discomfort and his limited ability to lift had made his employment as a tiler “untenable at the present time”. He did not feel that his injuries would affect his ability to carry out household and domestic type activities but his vascular disease would significantly impair his ability to perform those activities, such as mowing the lawn. [22] In October 1998, Dr Avramovic was of the view that the pain experienced from the hernia repair was due to the mesh coming into contact with a nerve when Mr Erickson bent over or flexed his leg, rather than the mesh or any of the tacks holding the mesh being in constant contact with the nerve. He then told Mr Erickson’s solicitors that he saw the cause as being the positioning of the mesh which was a difficult exercise for any surgeon under this laparoscopic procedure. [23] In August 2000, Dr Avramovic reported that Mr Erickson continued to suffer unabated pain from the hernia repair, which was particularly brought on by flexion of the hip when bending down, with pain experienced in the left groin and radiating down the inner aspect of the leg. Mr Erickson also complained of cramping lower abdominal pain and some weakness and in-coordination of the left leg. In Dr Avramovic’s view, Mr Erickson was then unable to carry on as a tiler in any way. But he also described the distinct problems of Mr Erickson’s vascular disease and an aortic aneurysm. He believed that the vascular disease, which particularly affected the right calf, might limit Mr Erickson’s work as a tiler even absent any problems from the hernia repair. [24] I accept that Mr Erickson still suffers pain in the area of the left groin and radiating down the inner aspect of the left leg as a result of the hernia repair undertaken by Dr Maguire. The extent to which this affects his life is complicated by Mr Erickson’s vascular disease. According to a scan report of August 2000, he had about a 50 per cent blockage of the main artery in the left thigh and a long complete blockage of the main artery in the right thigh, which then suggested to Dr Avramovic that if Mr Erickson were to walk any distance he would develop pain in the right calf and perhaps also in the left calf. In Dr Avramovic’s report of August 2000 he thought that the vascular disease would limit Mr Erickson’s work as a tiler although the extent of that limitation was difficult to ascertain. He said that the effects of the vascular disease could be alleviated by surgery but this was not indicated because Mr Erickson would still have the effect on his mobility from the pain in the groin caused by the hernia repair. [25] Although his ability to work and engage in other of his former activities, such as dancing, is affected also by his vascular disease, I accept that pain and lack of mobility from the effects of the hernia repair were themselves sufficient to prevent -- 7 of 18 -- 8 him from working as a tiler, especially at his age. I would also find that the pain and lack of mobility have affected his ability to perform some household tasks. There was some challenge to this by cross-examination of medical records which indicate that he has been involved in some gardening or lawn mowing activities. However, I am persuaded that he is limited in these tasks as well as in his work. [26] It is the common view of the three psychiatric expert witnesses, none of whom was cross-examined, that Mr Erickson suffered from a Depressive Disorder of moderately severe degree which was precipitated by pain and complications following his hernia repair. They also agree that he suffered from a depressive type of illness of moderate to severe degree perhaps in 1999/2000 but had improved, although he retained chronic low grade symptoms which are not of an incapacitating degree. Further, they agree that he was not suffering from any significant degree of Depressive Disorder prior to the surgery, notwithstanding some information which suggested symptoms consistent with Depression. I see no reason not to accept any of this evidence, and the other aspects of the joint opinion expressed by the psychiatrists in their report of September 2003. The guarantee case [27] Mr Erickson’s evidence-in-chief was relevantly as follows: “First of all, did he tell you how he was going to perform the surgery? -- No, I asked him. I said I would like to have it open surgery and he said no. He said, “I don’t do open surgery any more”, he said, “I do laparoscopic surgery.”, and I said, “What’s that?”, and he – then he explained what it was --- What did he tell you? – Put the instruments through your bellybutton with a little camera and he does the surgery by a TV monitor, and then I said, and I – I said, well, then – what happens then, you know. He said, “We put a mesh in over and we clip it to” – “on the inside”, and he said, “There’ll be no scars, only a tiny little scar on your bellybutton”, and he said, “You might have one lower down in your groin.”, and I thought – I wasn’t over keen on it and I said, “Well, is there any” – “What” – “How long does it take and what” – he said, “Oh, only takes about 20 minutes.”, and he said, “I’ll” – he said I said – “Well”, he said, “I’ve done 70-odd operations like this.” I said, “Any problems?” He said, “I’ve had no problems whatsoever.”, and he said between the open surgery and laparoscopic he said there’s a big difference. He said open surgery is six to eight weeks recuperation and he’s told me about four weeks for whats-a-name when I said, “I still prefer the open surgery”, you know, and he turned around and said, “I will guarantee you that you will be back at work within four weeks with no problems.”, and I thought, “Well, if he’s prepared to do that”, that virtually changed me mind, to a degree, not to go for the open surgery. -- 8 of 18 -- 9 Did you say anything in response to him about the – to his comment about the lack of a scar with the laparoscopic -- ? – Yeah. He said there will be no scar and he said a lot of people do it these days and women mostly because they’re – it’s cosmetic purposes and they don’t – haven’t got a scar near their bikini line. Did you have anything to say about that? – I said, “Well, I’m not worried about a scar.” I said, “I ain’t got no body beautiful.” So I said, “Doesn’t worry me, a scar.” I said, “Nobody’s going to look down there”. Did you have any discussion with him about your own experience and what you knew about laparoscopic surgery? – And I said – well, I didn’t know much about it only what I’ve been told. I said me mate’s surgery had broken – or two of them, actually, and he said, “I don’t know who they were”, but he said, “I’ll guarantee you you will be back at work in four weeks with no problems”. Did he mention any negative or risks associated with the surgery – Nothing whatsoever. Did he suggest to you there might be a risk of some sort of nerve damage? – No.” [28] Neither Mr Erickson nor Dr Maguire could have a perfect recollection of the words spoken. Neither of them recorded or diarised their conversation. There is also a real potential for the patient to have misunderstood the effect of the doctor’s words, so that in now recounting the discussion, Mr Erickson may be affected by his understanding of Dr Maguire’s advice, rather than reliably and precisely recalling the actual words spoken. It is also possible that Mr Erickson’s recollection is affected by a feeling of resentment, that Dr Maguire in some way must be to blame for his problems. I have already considered part of this evidence, which is Mr Erickson’s purported recollection that Dr Maguire said that “I don’t do open surgery any more”. The rejection of that particular element however does not require the rejection of the whole of Mr Erickson’s evidence as to the effect of this conversation. In essence, the question is whether Dr Maguire used words which should have been understood by Mr Erickson to mean that there was no prospect of any adverse effect from the laparoscopic repair, at least if it was performed with proper care and skill. [29] At this point it is convenient to discuss the relative risks of the laparoscopic and open methods of hernia repair. Each method involves some prospect of side effects even from a properly performed procedure. Dr Avramovic said that there was a risk of nerve damage and consequent chronic pain from either the open or laparoscopic procedure, and that for open surgery, there are other possible complications “related to haemorrhage, infection, and so forth”. The nerves at risk differ between the procedures, but there is a substantial risk of nerve damage in each case. Dr Avramovic’s practice was to explain to a patient that there were these two types of procedures, each having certain advantages and disadvantages relative to the other and that one advantage of the laparoscopic method was that, generally speaking, the -- 9 of 18 -- 10 time before which the patient could resume full physical activity was shorter. He would then make a recommendation as to which procedure suited the particular patient, which would sometimes refer to the difference in the time for recovery. In particular he gave this evidence: “And is that something you would discuss with them? – If it was of material interest to them. If I were a retiree who wants the procedure performed under a local anaesthetic, an open procedure is appropriate. But a 25 year old self-employed man or rugby football player, who needs to get back to their physical activities quickly, then that’s of material interest to them and they would be told why a laparoscopy (sic) procedure might be preferable. I thought you said you discuss with them the two procedures? – Yes, and then I make a recommendation.” Dr Brown is a recently retired consultant surgeon who practised in Sydney for 35 years. For the first 20 years he performed open hernia repairs, but in the last 10 or 12 years he was performing mainly laparoscopic hernia repairs. In a paper he gave in 1998 he reported on over 800 laparoscopic repairs which he had performed. He preferred the laparoscopic repair because of what he said was the speed of recovery, the reduced incidence of complications, and the reduced incidence of recurrent hernias compared with the open method. In his view then, although each type of procedure had a potential for complications, there was less risk with the laparoscopic method. [30] No witness suggests that Dr Maguire was wrong to advise Mr Erickson to have the laparoscopic procedure, and that is no longer a part of Mr Erickson’s case. Nor did any witness suggest that there was a higher risk of complications from laparoscopic procedure, and the highly experienced Dr Brown was adamant that it was less risky. The witnesses agreed that there was usually a faster recovery from the laparoscopic surgery. [31] In these circumstances it is likely that Dr Maguire would wish to strongly advise his patient to have the laparoscopic procedure. On any of the evidence in this case, that was a preferable course for a patient in Mr Erickson’s circumstances. And according to any of the medical evidence, a surgeon in Dr Maguire’s position would be confident of the patient’s recovery within three or four weeks. [32] Mr Mullins correctly described Dr Maguire as having an emphatic manner, at least as he appeared when giving evidence. If faced with a patient who expressed misgivings as to his recommendation, I think it is likely that Dr Maguire would have advised in forceful terms. However, I have difficulty accepting that he went so far as to represent that there was no risk of complication. I cannot accept that a surgeon of his experience would have been so careless as to represent that there was no risk. As Dr Avramovic said, no surgeon can give a guarantee with any surgery. Ultimately I am not persuaded that Dr Maguire used words which could reasonably have been understood as representing that there was no risk of complication from the laparoscopic procedure. -- 10 of 18 -- 11 [33] Had I been persuaded that words to that effect were used, then clearly the advice would have been negligent, according to any of the medical evidence, including that of Dr Maguire himself. The fact that a statement to that effect would be so obviously unreasonable is a major reason for my being unpersuaded that it was made. [34] Further, had Mr Erickson proved a statement to the effect alleged, I would not have been persuaded that it caused him to take a different course from the laparoscopic procedure. Mr Erickson’s evidence was that had he not been given this alleged guarantee, but had been told that there was a risk of nerve damage and “reinjury” following either type of procedure, he “would have had second thoughts about it” and would have obtained a second opinion. When asked what he would have done if the second opinion was to the same effect, he said that he would have opted for the open surgery. His explanation was as follows: “Why would you have done that? – Because I was explained that with open surgery you have an open view of the whole operation because the whole lot is there in front of you opened up. Where, with laparoscopy, you’ve only got a little camera looking through a monitor and a person can’t see everything that’s happening inside. Where, with open surgery, there they push the nerves aside and the whole thing is there in front of you and you can see everything with your own eyes. As with the other, you got to rely on a little camera. Any other reason? – Not really. Because I don’t rely on technical cameras can give you a – what would you say – a third dimension sort of focus on things, whereas, the natural eyesight you can see the thing there in front. I’m a practical person. I like to see things in front of me. I don’t like looking through cameras and that and say, “Yeah, that’s that and that.”, but it might not be that.” [35] I reject this evidence. Because Mr Erickson has had such substantial problems from his surgery, it is understandable that he now says that he should and would have had a different procedure. It is likely that his explanation is a result of the medical evidence in this case, which is discussed below, as to the difficulties for the surgeon in precisely positioning tacks and the mesh because they are seen by the surgeon only in the two dimensional image on a screen when the laparoscopic procedure is used. It may be that Mr Erickson would have sought a second opinion, given what he says had been the experiences of his friends with the laparoscopic procedure. But on the assumption that the second opinion was a correct one, he would have received advice according to the hypothesis put to him in evidence. By then he would have received independent confirmation of the view that the laparoscopic procedure was no riskier than the open procedure: indeed there is a real likelihood that he would have received advice such as that which Dr Brown would have given, which is that it was less risky. He was very keen to have this hernia repaired as soon as possible. He was prepared to pay for the procedure to be performed at a private hospital although he had no medical insurance. He was not prepared to wait for a Dr Hack to return from leave, which is why he was then referred to Dr Maguire, and even then, he insisted upon the appointment with Dr Maguire being brought forward by a week. A particular job was on offer which he had to start in -- 11 of 18 -- 12 less than eight weeks. According to his evidence, he would have lost that job had he been unable to resume his work earlier than eight weeks. In these circumstances, and with the opinion of two specialists that there was no comparative disadvantage in the laparoscopic procedure, I cannot accept that he would have disregarded the medical advice and trusted his own judgment as to which was the less risky course. And to decline either procedure was not an option; he was by then suffering considerable pain and difficulties in working. The need for attention to the context in which the patient would have made a decision, and the recognition of the impact of hindsight, was discussed by Gleeson CJ in Rosenberg v Percival (2001) 205 CLR 434 at 441 as follows: “There is an aspect of such a question which may form an important part of the context in which a trial judge considers the issue of causation. In the way in which litigation proceeds, the conduct of the parties is seen through the prism of hindsight. A foreseeable risk has eventuated, and harm has resulted. The particular risk becomes the focus of attention. But at the time of the allegedly tortious conduct, there may have been no reason to single it out from a number of adverse contingencies, or to attach to it the significance it later assumed. Recent judgments in this Court have drawn attention to the danger of a failure, after the event, to take account of the context, before or at the time of the event, in which a contingency was to be evaluated (33). This danger may be of particular significance where the alleged breach of duty of care is a failure to warn about the possible risks associated with a course of action, where there were, at the time, strong reasons in favour of pursuing the course of action.” [36] This limb of the case was based entirely upon the factual premise that Dr Maguire gave an unqualified guarantee of success of the procedure, so that it was risk free. It was not argued in the alternative that absent such guarantee, Dr Maguire had failed to warn of a risk which was material according to the test in Rogers v Whitaker (1992) 175 CLR 479. In any case, had Dr Maguire given any warning which was required according to the Rogers test, then as I have just found, it is more probable that Mr Erickson would have had this laparoscopic procedure. The performance of the surgery Until July 2002, the particulars of this part of Mr Erickson’s case were as follows: “10.1 failing to use a method of hernia repair that did not expose the femoral or obturator nerve to irritation or injury; and/or 10.2 failing to use the open method; 10.3 placing the mesh in a position close to the obturator and femoral nerves in circumstances where such placement exposed the plaintiff’s nerves to injury or irritation; 10.4 implanting a mesh that was excessively large in the circumstances and thereby unnecessarily exposing the obturator and femoral nerve to injury or irritation.” -- 12 of 18 -- 13 [37] But it was common ground that the laparoscopic method did expose the femoral and obturator nerves to irritation or injury. As I have said, there is no evidence to support a case that it was negligent to repair this hernia by the laparoscopic method and such a case was not pursued at the trial. Accordingly, a case was not pursued along the lines of paragraphs 10.1 and 10.2. [38] The case particularised in 10.3 and 10.4 was based upon Dr Avramovic’s opinion, expressed in a note signed by him in April 1999, that Mr Erickson’s difficulties were caused by the mesh, and in particular its size and its placement. With that note, Dr Avramovic drew a schematic diagram which represented where Dr Maguire had placed the mesh in comparison with where Dr Avramovic would have placed it. He was then critical of the placement of the mesh so that it covered part of the foramen through which the obturator nerve passes, and he said that the mesh was also excessive in the femoral artery area, meaning that there was too much mesh so that some of it had become rolled up and was proximate to the femoral nerve causing it irritation. [39] Dr Brown wrote a report dated 27 June 2002, and he and Dr Avramovic wrote a joint report dated 24 July 2002. At the time of Dr Brown’s first report, the plaintiff’s case was limited to the particulars as set out above. In that report, Dr Brown thought that Mr Erickson’s pain was “presumably related to the presence of the mesh, since the subsequent removal of it produced significant alleviation of the post-operative pain of which the patient had been complaining”. But in his view the mesh used was not excessively large and, indeed, had it been smaller, there would have been a concern as to a recurrence of the hernia. As to the positioning of the mesh, he said that the two dimensional television image used in the laparoscopic procedure can make it extremely difficult for the surgeon to determine the exact position that the mesh would be in after it has been placed. [40] In the joint report, Dr Avramovic agreed that the size of the mesh used was appropriate. He also agreed that Mr Erickson’s problems, although related to the mesh used, “could not be attributed to any fault in technique”. By the time of this joint report, the plaintiff had added two particulars to its negligence allegation as follows: “10.5 Placing staples lateral to the epigastric vessels and below the inguinal ligament and/or penetrating too deeply into muscle with the staples; 10.6 If it was necessary to place the staples lateral to the inferior epigastric vessels, penetrating too deeply with the staples so that the plaintiff suffered a significant risk of nerve injury.” As to those particulars, Drs Brown and Avramovic said: “we were agreed that there was no indication of inappropriate positioning or depth of penetration of the type of staple (namely a “spiral tack”) used in this patient.” That conclusion followed from their discussion as to the placement of the staples or tacks in these terms: “(ii) Placement of Staples -- 13 of 18 -- 14 We agreed that, because the image used in laparoscopic hernia repair is a two dimensional television image with limited depth perception, this can make it extremely difficult for the surgeon to judge the exact position that the staples (or tacks, as in this case) are being placed in, in relation to the inguinal ligament. Hence, although the tacks appear to be placed low, in relation to the inguinal ligament, on X- ray, their placement was within the appropriate region given the capabilities of the technology. We were also agreed that there were no tacks placed directly on the obturator nerve. With regard to the placement of staples lateral to the epigastric vessels, it was agreed that this is standard in the performance of laparoscopic hernia operations. It was also agreed that some of the concerns with respect to the placement of staples, referred to in the literature, applied to the type of staple that closes around the tissues and that such concerns with regard to their placement do not apply to the spiral tacks, used in this case, which do not enclose any tissue.” [41] This joint report could have been thought to have put paid to the plaintiff’s claim in relation to the positioning or depth of penetration of any tack used to secure the mesh, as well as in relation to the size or positioning of the mesh itself. The experts’ common view was that if it was a tack or tacks which had irritated a nerve, the difficulties of the laparoscopic technique could have resulted in that occurring without any fault of the surgeon. [42] But ultimately it is the plaintiff’s case that Dr Maguire placed the tacks precisely where he intended, which no reasonable surgeon would have done. The case is that at least one of the tacks was wrongly located too close to a nerve, not because Dr Maguire was trying to position it elsewhere but was affected by the limitations of the laparoscopic technology, but because unlike the reasonably careful and knowledgeable surgeon, he did not know where the tack should or should not be placed. [43] Before going to the question of where Dr Maguire placed the tacks, it is convenient to discuss the evidence as to where tacks or staples should or should not be placed. In his report of 18 April 2002, Dr Avramovic discussed whether there were any generally accepted methods of avoiding nerve injury during laparoscopic hernia repair. He referred to a published work by a Dr Edward Phillips, as (in Dr Avramovic’s view) emphasising “that nerve injuries can be avoided by placing no staples lateral to the epigastric vessels, or below the inguinal ligament (and) avoiding penetrating too deeply into muscle with staples”. (Plainly, paragraph 10.5 of the particulars derives from this report.) Dr Avramovic then referred to an x-ray of Mr Erickson’s left hip which had been taken on 2 June 1997, that is after the original procedure, but before the exploratory procedure in which Dr Maguire had removed two of the tacks. He described the x-ray as clearly demonstrating the distribution of the staples or tacks holding the mesh. He prepared a tracing of the x- ray showing the position of the tacks relative to the inguinal ligament and the inferior epigastric vessels. That tracing depicts a total of eight staples. Dr Avramovic distinguished two of them as being placed in the “safe area”, i.e. in an -- 14 of 18 -- 15 area where nerve injury would not be caused. His tracing showed another two as staples “placed inferior to the (inguinal) ligament” and the other four staples as “placed lateral to the inferior epigastric vessels”. It plainly appears from his tracing and his written explanation of it that none of the staples was positioned so that it was both below the inguinal ligament and lateral to the epigastric vessels. But on Dr Avramovic’s then interpretation of Dr Phillips’ work, a staple was not to be placed either below that ligament or lateral to those vessels. On that interpretation, six of the eight tacks had been placed by Dr Maguire where they should not have been. In that report, Dr Avramovic was of the opinion that “the x-rays … demonstrate the staples were placed in positions at the initial operation that may have an association with nerve injuries and chronic pain”. [44] In oral evidence, each of Dr Brown and Dr Maguire disagreed with that interpretation of Dr Phillips’ publication. The relevant paragraph from Dr Phillips’ work is as follows: “Nerve injuries are reported in 2.0% of patients and are avoided by judicious attention to anatomical landmarks. The iliac vessels lie directly below the area between the vas deferens and spermatic vessels. Staples should not be placed in this area nor in the area below the inguinal ligament and lateral to the vas deferens.” (My emphasis) In their view, the area to be avoided was one which was not only below the inguinal ligament but was lateral to the vas deferens. After their evidence, Dr Avramovic was recalled and agreed with that interpretation. And he also agreed with their evidence that it is a common and proper practice to secure the mesh medially to the pubic bone or the ligament described as Cooper’s ligament, each of which was a position below the inguinal ligament but not lateral to the vas deferens. [45] At least until he gave further evidence on being recalled on closure of the defendant’s case, Dr Avramovic’s evidence was that no tack should be below the inguinal ligament, regardless of whether it was anywhere near any nerve which could be affected. That view was at least strongly reliant upon a certain interpretation of Dr Phillips’ work. It was not a view said to be based upon his experience or other research. And in my conclusion, it came from an incorrect interpretation of what Dr Phillips had written. Dr Phillips had warned of two areas to avoid, but he did not stipulate that staples should not be below the inguinal ligament if medial to, that is closer to the mid line of the body than, the vas deferens, rather than lateral to, i.e. further from the midline than, the vas deferens. [46] I return to the question of where Dr Maguire did place the staples or tacks in the original procedure. Dr Avramovic had written in April 2002 that their position was clearly demonstrated by the x-ray, and also presumably by his tracing of it. No witness, Dr Avramovic included, described any of the staples as depicted in his tracing as being both below the inguinal ligament and lateral to the epigastric vessels or the vas deferens. In his (original) evidence-in-chief, Dr Avramovic was asked to look at a different drawing prepared by him, which was apparently prepared in 1999. It was entitled “Schematic diagram of findings at surgery Mr -- 15 of 18 -- 16 Frank Erickson”. It represents some 20 tacks or staples, some of which were at least below the inguinal ligament. This was a schematic diagram and I do not understand Dr Avramovic to have intended to represent by it that there were some 20 tacks or staples placed on the mesh, although that number is depicted on the diagram. As I have mentioned, his tracing of the x-ray depicts eight tacks. Clearly from the x-ray, two of them were below the inguinal ligament but they were not also lateral to the epigastric vessels. [47] Dr Maguire said that it was his practice, which he employed in this case, to place one or two tacks into the pubic bone in order to anchor the mesh before applying tacks elsewhere. Tacks applied to the pubic bone would be located at or beyond the medial end of the inguinal ligament and, on one view, also below it. When he was recalled, Dr Avramovic agreed that this was a proper practice, as tacks placed in that position involved no risk of nerve damage. Dr Maguire did remove two tacks in his exploratory procedure of June 1997, which were those closest to the two nerves which were thought to be the cause of the problem. Dr Maguire marked on Dr Avramovic’s tracing of the x-ray the positions of these two tacks, as best as he could recall them. But this was necessarily imprecise. Not only was Dr Maguire working from memory, but the two tacks he removed must have been amongst the eight tacks the positions of which were described by Dr Avramovic as clearly demonstrated by the x-ray and his tracing of it. [48] At one point in his evidence1 Dr Maguire said in relation to Dr Phillips’ text: “…but it doesn’t say that you can’t put staples below the inguinal ligament medially, and I always put staples in there to hold the mesh so that I can spread the mesh out and I catch the pubic bone above the obturator foramen so that I can fix the mesh and then – it is very hard to move this mesh around in this space but if you fix it at one point, it allows you to then move it around so that you get it in a good position.” As I read that evidence, it is consistent with other evidence from Dr Maguire that his usual practice is to put staples below the inguinal ligament medially, but only when fixing them to the pubic bone. That is also the effect of Dr Maguire’s evidence in another passage where he said: “Now it’s my practice, contrary to what the plaintiff has said, to actually secure immediately just below the inguinal ligament the mesh to the pubic bone, the superior ramus of the pubis. This is away from the obturator foramen and sometimes you put one clip, a tack, one tack, or sometimes you put two tacks. Then you must take the mesh across and make sure that superiorly you don’t go near the inferior epigastric vessels, go out laterally, not too far laterally, to get the lateral cutaneous nerve of the thigh, inferiorly, it is reasonable to start your tacking after the pubic bone lateral to the cord so that you don’t get any of the cord structures and perhaps put one or two clips in there.” 1 T147 -- 16 of 18 -- 17 When he was recalled, Dr Avramovic was asked to comment on those passages and, as Mr Mullins’ question described their effect, on “the suggestion that it is acceptable to place tacks below the inguinal ligament but medial to the epigastric vessels”. But Dr Maguire had not suggested that this was acceptable, other than when placing tacks at the medial end of the inguinal ligament on the pubic bone. Dr Avramovic’s comment was that to place the tacks on the pubic bone, or the (nearby) Cooper’s ligament, was perfectly acceptable but to place them below the inguinal ligament and closer to the epigastric vessels although medial to them was risky. That may be so, but that is not where Dr Maguire said he inserted tacks, as a general rule or in Mr Erickson’s case, and nor is it where Dr Avramovic says they were inserted in this case. [49] The result is that Dr Maguire did not say that he intentionally places tacks in any position of which Dr Avramovic would now be critical. To the extent that he had been critical of the placement of tacks in the positions which were depicted on his trace of the x-ray, this opinion had come from a misreading of Dr Phillips’ text. When he effectively conceded that the text should be read otherwise, and as Dr Brown and Dr Maguire read it, it is notable that he was not asked to again comment upon the location of any of the tacks which were “clearly demonstrated” by the x- ray. [50] Therefore I conclude that insofar as Dr Maguire succeeded in placing any tack below the inguinal ligament and exactly where he intended, he attached it to the pubic bone, which was a proper practice having no risk of nerve injury. If any tack was placed too close to a nerve, it is not shown to have been located where Dr Maguire intended, and the common opinion of Dr Brown and Dr Avramovic was that such an unintended misplacement need not result from incompetence or anything which falls below the standards expected of a competent general surgeon. [51] Nor is it established that more probably than not the cause of Mr Erickson’s problems was the location of a tack or tacks. The opinion of Dr Brown and Dr Avramovic was that the problem appeared “to be related to the rolled edge of the mesh, as indicated by the relief provided by Dr Avramovic’s subsequent removal of that mesh”. There had been an improvement immediately after Dr Maguire’s exploratory procedure, but Dr Avramovic agreed that this could be attributed to the repositioning of the mesh in that procedure. And, again according to the joint opinion, if the problems were caused by the mesh, these still “could not be attributed to any fault in technique”. [52] The plaintiff has therefore failed to prove any negligence in the performance of the procedure, and his claim must be dismissed. Damages [53] As was common ground in this case, there would have been no difference in the measure of damages between the respective causes of action, if any had been established. If either the guarantee case or the negligent surgery case had been proved, I would have awarded damages as follows. -- 17 of 18 -- 18 [54] Mr Erickson underwent two further procedures following the hernia repair. The second of these involved major surgery. I have found that he continues to suffer pain and discomfort although that 1998 procedure did provide substantial relief. I have also found that he suffered a major depressive disorder with ongoing symptoms in consequence of the complications of the hernia repair. I would have awarded general damages in the sum of $60,000, with interest calculated at 2% for seven years amounting to $8,400. [55] In the year to 30 June 1996, Mr Erickson’s earnings approximated $50,000, although that was far higher than his average income for the four years to 1997 which was about $375 net per week. His income obviously varied according to conditions in the building industry although it can be readily accepted that in recent years, demand for building tradesmen has been relatively strong. In my view a proper allowance would have been of the order of $650 net per week for seven years which would equate to $236,600 before discounting. The factors warranting a discount include not only the availability of work, but in his case the impact of his other health problems and in particular his vascular disease. In my view it would have been appropriate to allow a discount of 35% resulting in a component for past economic loss of $153,790. Interest would have been awarded on this sum at 5% for seven years being a further $53,826.50. [56] In my view it would not have been appropriate to make any award for future economic loss. Mr Erickson is now approaching his 68th birthday and he has other health problems, the most important of which is his vascular disease. [57] As for past care, I would have awarded him two periods of recuperation from his hernia repair and his February 1998 surgery of a total of 5 hours per day for 20 weeks, together with a further 2 hours per week for the balance of the period which approximates 1384 hours of care. Multiplied by what the parties agree as a fair rate of $11 per hour, this would have involved an award for past care of $15,224, on which I would have awarded interest at 5% resulting in a component of $5,328. For future care I would have allowed 2 hours per week at what the parties agreed was a fair rate of $15 per hour which with a multiplier of 555 and applying a 30 per cent discount, would provide a component of $11,655. Special damages were agreed in the sum of $6,355. [58] Accordingly had I upheld the plaintiff’s claim on any ground, I would have given him judgment in an amount of $314,578.50. Conclusion [59] There will be judgment for the defendants. I shall hear the parties as to costs. -- 18 of 18 --