The plaintiff brought a claim against a urologist and a Local Health District in negligence, breach of contract and breach of statutory guarantees. In line with the principles of Wallace v Kam, the claim failed on all three causes of action.
In issue
- The plaintiff brought a claim for damages in the Supreme Court of NSW against her treating urologist, Dr Prem Rashid (first defendant) and local health district, Mid North Coast Local Area Health District (the LHD) alleging personal injury arising from complications following a surgical procedure performed on 8 July 2013.
- The plaintiff alleged negligence by way of failure to adequately warn of the surgical risks and improper performance of the actual surgery. The plaintiff further alleged a breach of contract and statutory guarantees.
- The defendants argued the plaintiff’s claims were statute barred.
The background
The plaintiff claimed damages for personal injury arising from complications of an implantation of a mid-urethral sling to correct stress urinary incontinence performed by the first defendant who was a urologist in private practice and a Visiting Medical Officer at Port Macquarie Base Hospital run by the LHD on 8 July 2013.
The plaintiff’s list of 22 allegations of negligence were condensed at trial into two succinct allegations. First, the plaintiff alleged that the first defendant failed to warn her of the risk of complications and that she would not have consented to the surgery had she been adequately warned. The plaintiff also alleged that the first defendant performed the procedure with less than reasonable care in one respect, causing damage to a nerve.
The plaintiff claimed that as a result of the alleged negligence during the operation, she suffered from difficulty voiding her bladder, recurrent UTIs, pelvic pain, chronic groin pain, need for revision surgery and psychological sequelae.
The plaintiff’s principal cause of action was in negligence. The plaintiff also claimed breach of contract, and breach of guarantees with respect to the first defendant’s medical advice under sections 60 and 61 of the Australian Consumer Law (NSW) (the ACL).
The decision at trial
The Court considered the first defendant’s duty to warn of material risks, and held that the first defendant owed a duty to warn the plaintiff of the risks of urinary tract infection, worsening of pre-operative symptoms, retention issues, and possibility of revision surgery. The Court held that neither the first defendant nor Sister Doyle (the first defendant’s nurse assistant) warned the plaintiff of the low level risk that she might suffer retention, requiring catheterisation, for some weeks after the surgery and the very low level risk that retention might persist over a longer timeframe and require further surgery, including possibly removal of the sling.
Despite the breach of material risk, the Court was not satisfied, on the balance of probabilities, that the plaintiff would have declined the surgery if she had been adequately warned of these risks. The plaintiff was found to be highly motivated to cure her stress urinary incontinence which had significantly impacted her life and was ‘focused on the positives’ of the procedure. Her high motivation meant that she would have discounted these low-level risks.
The Court also held that the plaintiff failed to prove that the right arm of the tape was negligently positioned, causing injury to the obturator nerve. The Court preferred the opinion of the defendant’s expert Dr Katelaris, which pointed out that the lack of objective motor nerve injury was inconsistent with significant obturator nerve damage. Further, the plaintiff’s pain symptoms were intermittent and subsided for 15 months post-surgery, which was inconsistent with a negligently inflicted nerve insult.
The plaintiff’s claim for breach of contract was dismissed by the Court for the same reasons that the claim in negligence failed. Further, the breach of the statutory guarantees of sections 60 and 61 of the ACL were established only to the extent of the failure to warn findings but failed for lack of causation that she suffered any loss or damage because of the failure to comply with the guarantee.
With respect to the claim made by the defendants that the causes of action were statute barred, the Court found that the 3-year limitation period in section 50C of the Limitation Act had not expired. The discoverability date was held to be no earlier than the date the plaintiff received the expert report giving her a belief that her injury was caused by the defendants’ fault.
Despite the limitation defence failing, the Court still found in favour of the defendants, and the plaintiff was ordered to pay the defendants’ costs.
Implications for you
This case emphasises the importance of causation in failure to warn cases. Much like the well-known High Court case of Wallace v Kam (2013) CLR 375, a breach of the duty to warn is not enough to secure a finding of liability. The plaintiff must prove that but for the failure to warn of the specific material risk that eventuated, they would not have had the surgery – s 5D(1)(a) of Civil Liability Act 2002 (NSW).
Further, a plaintiff’s retrospective statement that they would have declined surgery, may be given no weight if contradicted by contemporaneous medical records showing a high motivation for a specific procedure. The emotional toll of the original condition of the plaintiff strongly influenced the Court’s findings on causation.
For medical practitioners, it is important to note that relying solely on a short list of general complications on a handout or slide may constitute a breach of the duty to warn if more serious, although low frequency, outcomes are not explicitly addressed.
This case also emphasises that documentation is paramount. The detailed and consistent evidence given by the first defendant’s urology nurse regarding her usual practice of providing specific warnings and a product brochure was deemed highly credible and assisted the defendants to defeat several allegations of a total failure to warn.
