The plaintiff alleged the defendant had negligently performed a hemorrhoidectomy on her. In finding in favour of the plaintiff, his Honour Justice Brett found on the balance of probabilities that the defendant had breached his duty of care and skill in the performance of the procedure.
In issue
- Whether the defendant negligently performed the haemorrhoidectomy, including whether the court could draw an inference that the procedure was performed negligently from the location of the staple line.
- Whether, irrespective of any negligence on behalf of the defendant, the haemorrhoidectomy caused the plaintiff’s ongoing difficulties.
The background
The proceedings related to a procedure conducted by the defendant on the plaintiff known as a stapled haemorrhoidectomy.
The plaintiff was suffering from episodes of anal bleeding and was referred to the defendant who is a general surgeon. The defendant identified that the bleeding episodes were caused by internal haemorrhoids, and he conducted a stapled haemorrhoidectomy to remedy the issue. Following the procedure the plaintiff experienced a diverse range of symptoms including rectal pain, perianal pain, vomiting and difficulties with bowel function. As a result, the plaintiff had to have a loop ileostomy leading to a stoma bag and was diagnosed with a parastomal hernia. The plaintiff also claimed to have suffered psychological issues as a result of her symptoms.
The plaintiff alleged the symptoms were caused by the defendant’s negligence, specifically that he failed to place the staple line high enough above the anal canal, which resulted in nerve damage causing permanent and severe disability for the plaintiff.
The defendant maintained that he did not negligently perform the procedure and that any health deterioration to the plaintiff was due to a natural progression of her pre-existing symptoms or expected consequences from the haemorrhoidectomy.
The decision at trial
In finding in favor of the plaintiff, His Honour found that the defendant had performed the procedure negligently and that the defendant’s negligence caused the plaintiff’s subsequent symptoms.
His Honour found that the defendant had breached his duty of care and skill by inserting the staples in a position across or below the anatomical position of the dentate line, which meant the staples were inserted into the transitional epithelium. In coming to this conclusion, His Honour accepted the expert opinion of Dr Sitzler, a specialist colorectal surgeon, who had conducted a rectal examination of the plaintiff and observed that the staple line had been placed over the dentate line and was ‘lower than it possibly should be’.
In this case the defence of peer professional opinion provided by section 22 of the Civil Liability Act 2002 (Tas) (the CLA) was not relevant to the critical question in issue, that being the point at which the location of the staple line permits an inference of negligence. However, his Honour did note that expert evidence would need to be considered in this regard.
His Honour heard evidence from colorectal experts Professor Eyers and Associate Professor Schnitzler as to the requisite standard of competence for a haemorrhoidectomy. Relying on evidence from the experts that the correct placement of the staple line was crucial to a successful procedural outcome, Justice Brett reasoned that if it was established that the staple line was below the dentate line the Court could draw an inference of negligence.
His Honour found, on the balance of probabilities, that the defendant’s placement of the staple line over the dentate line caused the nerve damage suffered by the plaintiff and any subsequent harm suffered by her as a result of the nerve damage.
Despite the unavailability of direct evidence establishing causation, His Honour accepted the plaintiff’s circumstantial reasoning including ‘the absence of symptoms apart from rectal bleeding prior to the procedure, but their presence immediately after the procedure and thereafter’ and expert evidence concerning ‘the possible association between such symptoms and the placement of the staple line low in the anal canal’.
His Honour recognised that the plaintiff had pre-existing problems with bowel functions but nevertheless found that the defendant’s conduct caused an aggravation of those pre-existing problems to the extent that the plaintiff’s symptoms would not have occurred 'but for' the defendant’s conduct.
His Honour awarded a total of $755,475 in damages to the plaintiff. His Honour discounted the quantum awarded considering the plaintiff’s pre-existing bowel problems and psychological issues as well as the possibility that the plaintiff’s symptoms might have occurred irrespective of the procedure. He also took into account the plaintiff’s failure to provide sufficient evidence supporting many of her claims relating to damages.
Of note was His Honour’s allowance of $75,000 in damages for pain and suffering and a $50,000 buffer for past and future economic loss, despite the finding that the plaintiff had only a minor pre-existing earning capacity even before her procedure.
Finally, Justice Brett awarded $240,000 in future medical expenses to the plaintiff. His Honour split the expenses into separate categories relating to:
- the plaintiff’s pain disorder (discount of 20% applied, resulting in the sum of $100,000),
- psychiatric care (discount of 40% applied, resulting in the sum of $49,000),
- other medical costs ($15,000 allowed and a discount for vicissitudes not specified), and
- professional consultations, nursing care and future equipment needs (discount of 40% applied, resulting in the sum of $76,000).
Implications for you
This decision is unique in that it focused on whether an inference of negligence can be drawn from the observed position of a staple line, as opposed to whether a particular procedure or method of performing that procedure was consistent with accepted medical practice. This meant that no evidence of accepted medical practice was available for the purposes of establishing a peer professional opinion defence pursuant to section 22 of the CLA.
The case also provides an example of how courts can approach complex symptomatology in personal injury cases where not all symptoms experienced by a plaintiff are causally related to the negligence alleged.
