Supreme Court New South Wales Medium Neutral Citation: Polsen v Harrison (No. 8) [2023] NSWSC 764 Hearing dates: 15-19, 22-26 February 2021, 2 March 2021, 6-10 December 2021, 13-16 December 2021, 16-20 May 2022, 9 June 2022, 25-26 October 2022 Date of orders: 06 July 2023 Decision date: 06 July 2023 Jurisdiction: Common Law Before: Lonergan J Decision: (1) Verdict and judgment for the defendant. (2) The plaintiff to pay the defendant's costs of the proceedings. Catchwords: PROFESSIONAL NEGLIGENCE – medical negligence – bariatric surgery – whether failure to warn of risks – s 5O Civil Liability Act standard of care for professionals – where s 5O defines the liability inquiry – s 5P Civil Liability Act – warnings are treated differently – warnings given were comprehensive – plaintiff unreliable – s 5I inherent risk – verdict for defendant Legislation Cited: Civil Liability Act 2002 (NSW) Evidence Act 1995 (NSW) Cases Cited: Dean v Pope [2022] NSWCA 260 Paul v Cooke (2013) 85 NSWLR 1167; [2013] NSWCA 311 Polsen v Harrison [2020] NSWSC 1167 Polsen v Harrison (No. 4) [2021] NSWSC 251 South Western Sydney Local Health District v Gould (2019) 97 NSWLR 513; [2018] NSWCA 69 Sparks v Hobson; Gray v Hobson (2018) 361 ALR 115; [2018] NSWCA 29 Category: Principal judgment Parties: Katrina Marie Polsen (Plaintiff) Dr Harrison (Defendant) Representation: Counsel: AJ Bartley SC / JA Hillier (15 February 2021 to 2 March 2021); M Cranitch SC / JA Hillier (6-16 December 2021; 16-20 May 2022, 9 June 2022 to 25-26 October 2022) (Plaintiff) M Windsor SC / M Hutchings (Defendant) Solicitors: Commins Hendriks (Plaintiff) HWL Ebsworth (Defendant) File Number(s): 2016/204451 Publication restriction: Nil Judgment 1. On 22 July 2013 Katrina Polsen ("Katrina") underwent a surgical procedure performed by the defendant, Dr Harrison, to manage her morbid obesity. She had a difficult and complex post-operative course involving many admissions to hospital and multiple surgical procedures over the following five years. Katrina alleges that she is unable to work and that her life and enjoyment of it have been significantly diminished because of the negligence on the part of Dr Harrison in his performance of that operation and his subsequent allegedly inadequate and delayed treatment. 2. Katrina's primary case is not that Dr Harrison should never have selected her as an appropriate candidate for the procedure, but that given her comorbidities of long-term alcohol abuse and liver dysfunction, she should have been counselled and the elective non-urgent surgery delayed. Alternatively, it is alleged that Dr Harrison did not properly warn her of the risks and if he had, she would not have gone ahead with the procedure. 3. Katrina's alternative case is that Dr Harrison's technical performance of the operation and initial management was negligent, and that negligence caused or materially contributed to a gastric leak at the site of the surgery, causing ongoing illness and the need for the further surgeries. In addition to and as part of that alternative case, Katrina says that Dr Harrison failed to detect that she had a "gastric leak" (or, more correctly, a staple line leakage,) when he should have, and that for a prolonged period, he failed to properly treat the leak, that he should have referred her to a tertiary institution or an appropriately qualified surgical team, and that his failures to do so were negligent and caused her to continue to suffer serious illness and distress. 4. Dr Harrison says that his treatment was not negligent and that he took appropriate steps to address the risk of harm: s 5B Civil Liability Act (2002) NSW ("the Act") and that he does not incur a liability in negligence arising from the provision of his professional services, because expert evidence that he has tendered and led at trial establishes that at the time the services were provided, he acted in a manner that was widely accepted in Australia by peer professional opinion as competent professional practice: s 5O of the Act. 5. Dr Harrison also pleads in his Defence that the complications and post-operative course that Katrina had was consistent with the inherent risks of the procedure and so s 5I of the Act provides an additional basis for why he is not liable. He pleads that all the risks were explained to her, and that the evidence does not establish that anything he did or failed to do was a necessary condition of the harm she suffered and so s 5D of the Act has not been satisfied, and her claim fails on that additional basis. The pleaded case 1. The Statement of Claim initially filed in the District Court on 6 July 2016 underwent multiple revisions, one of which was the subject of a contested pre-trial application in May 2020 which was granted: Polsen v Harrison [2020] NSWSC 1167 at [87] to [125], (the amended version being filed on 1 September 2020), and another which was the subject of an application to further amend on day three of the trial 17 February 2021, which was refused: Polsen v Harrison (No. 4) [2021] NSWSC 251. 2. Leave was however given by me at trial to amend the December 2020 iteration of the Further Amended Statement of Claim to include the necessary pleadings of the risk of harm and to identify the alleged scope of the defendant's duty of care, because neither of these essential matters had been included. These omissions were remedied in the Second Further Amended Statement of Claim filed on 19 September 2021, between days 11 and 12 of the trial. 3. The scope of the duty of care was identified at par 2AA: "2AA The scope of the First Defendant's duty of care to the Plaintiff required the First Defendant to: a) provide advice and treatment to the standard of a reasonably competent medical practitioner practising as a General Surgeon; and b) take steps that a reasonably competent medical practitioner practising as a General Surgeon would take to reduce the risk of foreseeable injury to the Plaintiff." 1. The risk of harm was pleaded as follows: "14E. The risk of harm comprised: a. The Plaintiff would undergo the surgery on 22 July 2013 when she should have been excluded from it; b. The risks of complications from the lap sleeve gastrectomy; c. The risk of gastric sleeve leak; d. The specific risks of complications from the lap sleeve gastrectomy associated with the Plaintiff's alcohol consumption and methotrexate consumption; e. Complications arising from a gastric sleeve leak; f. Complications arising from an inadequate or inadequately treated gastric sleeve leak; g. Complications arising from the untreated or inadequately treated haematoma(s); h. Complications arising from untreated or inadequately treated fistula; i. Complications arising from the untreated or inadequately treated infection. 14EA. It was reasonably foreseeable to the Defendant that if he did not provide advice, information, diagnosis and treatment in accordance with the standards of a medical practitioner practising as a General Surgeon then there was a risk the Plaintiff would suffer harm." 1. The particulars of negligence were pleaded in par 17 as follows: "17. Particulars of Negligence of the First Defendant a. Failure to carry out gastric sleeve procedure on the Plaintiff on 22 July 2013 in a competent manner. b. Failure to diagnose and/or recognise the complications suffered by the Plaintiff. c. Failure to advise or adequately advise the Plaintiff regarding the treatment to be performed on 22 July 2013. d. Failure to advise or adequately advise the Plaintiff as to alternative treatments available other than the gastric sleeve procedure. e. Failure to treat the complications suffered by the Plaintiff in a competent manner. f. Failure to refer the Plaintiff for specialist medical attention at an appropriate time. g. Failure to diagnose and/or manage the Plaintiff's condition whilst under the First Defendant's care. h. Failure to leave an adequate amount of stomach at the areas of the incisura when performing the gastric sleeve procedure on the Plaintiff. i. Failure to diagnose and/or manage distal stricture at the incisura when performing the gastric sleeve procedure on the Plaintiff on 22 July 2013. j. Creation of a distal stricture at the incisura when performing the gastric sleeve procedure on the Plaintiff on 22 July 2013. k. Failure to appreciate the distal stricture at the incisura of the Plaintiff on or about 31 July 2013 when performing gastroscopy. l. Failure to diagnose and/or recognise gastric sleeve leak of the Plaintiff. m. Failure to properly and/or adequately treat the Plaintiff's gastric sleeve leak. n. Failure to diagnose and/or recognise development of fistula in the Plaintiff. o. Failure to properly and/or adequately treat the Plaintiff's fistula. p. Failure to provide proper and/or adequate treatment to the Plaintiff's fistula by insertion of a stent on or about 1 August 2013 and thereafter. q. Failure to transfer the Plaintiff to a specialised Bariatric Surgical Unit in a major teaching hospital when it was appropriate to do so. r. Failure to refer the Plaintiff to an expert gastroenterologist and experienced bariatric surgeon when it was appropriate to do so. s. Failure to perform gastric bypass on the Plaintiff on or about 12 November 2013 when it was appropriate to do so. t. Failure to properly consider the Plaintiff's alcohol intake prior to the gastric sleeve surgery. u. Failure to consider the Plaintiff's high GGT levels prior to the gastric sleeve surgery. v. Failure to properly consider the Plaintiff's high GGT levels prior to the gastric sleeve surgery. w. Failure to consider that the Plaintiff's GGT levels on: a. 15 January 2013; b. 5 February 2013; c. 25 March 2013; and d. 27 May 2013. as being a contraindictor for the gastric sleeve surgery. x. Failure to exclude the Plaintiff as a candidate for the gastric sleeve surgery procedure on the basis of her alcohol dependence and/or consumption and/or pre-surgery medication of methotrexate. y. Failure to refer the Plaintiff to an educational course prior to the gastric sleeve surgery. z. Failure to ensure the Plaintiff underwent appropriate psychiatric and psychological assessment and counselling prior to the gastric sleeve surgery." 1. The sole defendant at trial was Dr Harrison, proceedings against Wagga Wagga Base Hospital ("WWBH") having been discontinued before trial. References in the pleadings to the "first defendant" are references to Dr Harrison. Relevant medical terms 1. The surgery undertaken is called a "gastric sleeve" or "sleeve gastrectomy". It is a surgical weight loss procedure involving removal of a large part of the stomach, leaving a narrow "sleeve". This has the dual effect of reducing both stomach size (by about 80%) and reducing hunger signals due to the reduction in a substance called ghrelin, which is a hormone that sends hunger signals to the brain. 2. Bariatric surgery is the medical term used for various surgical procedures that relate to weight loss, including gastric bypass and sleeve gastrectomy. 3. Gastric bypass surgery, also known as "Roux-en-Y", is a type of weight loss surgery that involves creating a small pouch from the stomach and connecting the newly created pouch directly to the small intestine. 4. Gastric sleeve leak or staple line leakage is a known complication of both gastric sleeve and Roux-en-Y gastric bypass surgery. In both surgeries staples are used as a temporary "glue" to create a watertight connection of the surgical areas. Over time, the body's healing power takes over for the staples to create a seal over the staples. If the body's healing power does not form a complete seal, or if the staples come apart, then leakage of fluid from within the bowel or stomach occurs. Factual background 1. Katrina's evidence in chief was given by way of sworn statements dated 9 October 2020, 14 December 2020 and 21 December 2020. [1] The statements were supplemented by short oral evidence regarding current employment status. She was cross-examined over some 8 days with regular breaks. Given the width of the allegations and Katrina's pre and post-surgery medical history and some reliability, credibility and recollection issues, a comprehensive cross-examination was necessary, and a detailed recount of the relevant facts is required. 2. Where there is a contradiction in recollections or records between Katrina and other evidence I have incorporated my findings into this recount, and explained the basis of the conclusion reached on any relevant fact in issue. 3. Because Katrina's case proceeds on the basis that Dr Harrison's failures to treat her were ongoing and his consideration of her emerging clinical course inadequate, it is necessary to comprehensively refer to the whole of the course treatment and decision making over the years that Katrina was under Dr Harrison's care. 4. Katrina was born in Wagga Wagga ("Wagga") in 1972 and attended Wagga High School until the age of 14 when she left to care for her grandmother. She worked full-time as a waitress and cook at the Northside Centre in Wagga until 1991 when she became pregnant with her first child, Wade. 5. Following the birth of Wade in 1991 Katrina ceased work. In 1993, she married Richard Polsen and had two further children, Cody and Tahlea, born in 1993 and 1995 respectively. She said that during each pregnancy she gained weight. [2] Each child was born by caesarean section. 6. Following the death of her mother in 2000, Katrina was prescribed an antidepressant for approximately six months. About that time she had a hysterectomy following which she gained approximately 20kgs. [3] 7. Between 2001 and 2012/2013, Katrina said that her weight continued to increase despite dieting, exercise and medication prescribed by her general practitioner. She was prescribed duromine which she took for about 12 months and during that period was able to lose about 20kg. [4] 8. In 2007 Katrina had surgery for adhesions. She also had difficulties with joint pain and stiffness in her hands in 2007 and in 2008 was referred to a rheumatologist, Dr Bleasel, given her symptoms and family history of rheumatoid arthritis. 9. By 2009 Katrina weighed approximately 120kgs (18 stone 12 pounds). [5] At a height of 154cms (five foot one inch), this meant that her body mass index (BMI) was 49.3, placing her in the morbidly obese category. 10. Since 2010 Katrina had been employed on a full-time basis as an assistant manager and loans officer at Cash Converters in Wagga and in 2013 was earning approximately $744.10 net per week. [6] 11. In July 2011 at a review with Dr Bleasel, Rheumatologist, Katrina complained of hand pain, stiff joints and low back and neck pain. She also mentioned that she was "thinking about" weight loss surgery. She saw Dr Bleasel again in November 2012. A strong family history of rheumatoid arthritis was noted as was the fact that Katrina had not had any of the further investigations Dr Bleasel had recommended. [7] 12. Katrina became concerned about the health risks associated with her weight including heart disease, increased blood pressure, stroke and early death. [8] In early 2013 she met a friend, Josie, who had undergone bariatric sleeve surgery by Dr Harrison and had lost a lot of weight. Katrina thought she "looked fantastic". [9] In this context, Katrina decided to contact Dr Harrison's rooms to make enquiries as to weight loss surgery. During the initial contact with Dr Harrison's rooms she was told that she would need to have an assessment by a nurse and a dietician and attend one of Dr Harrison's seminars before having a consultation with Dr Harrison. [10] 13. Katrina asserted in cross-examination that she had made no inquiries or investigations on the internet about weight loss surgery before consulting Dr Harrison's rooms but notes made by Dr Harrison and Nurse Aicken at the time they each consulted with Katrina recorded that she told them she had done "internet research". [11] I find that Katrina in fact said she had done internet research as part of her deliberate presentation to those people as knowledgeable about the surgery she was determined to have. Two other friends of Katrina's who also lived in Wagga had undergone bariatric surgery, however Katrina said that she only became aware of this after her consultation with the nurse at Dr Harrison's rooms in March 2013. [12] I do not accept that is true and that Katrina's recollection as to this detail is mistaken and it was she who raised with the nurse that she knew that these other people had had the surgery. 14. Katrina's daughter Tahlea gave evidence that her mother told her about a conversation she had with her friend Josie and that her mother subsequently saw a nurse and attended a seminar conducted by Dr Harrison. Tahlea agreed in cross-examination that her mother wanted to have the surgery even before attending the seminar with Dr Harrison because Josie had had it, and looked good after. [13] Alcohol consumption 1. Katrina alleged in her statements prepared for these proceedings and in her oral evidence that she was consuming a bottle of wine a night and drinking very heavily on the weekends in the period before her surgery. A key part of her case is that Dr Harrison did not have proper regard to that fact. However Katrina gave conflicting accounts about her alcohol consumption in 2013 to Dr Harrison and his staff and others, as well as conflicting evidence at trial in relation to her alcohol use in that period and what she recalls she told Dr Harrison and his staff about that. 2. Katrina said that she began drinking alcohol following the birth of Tahlea and that by 2007 she was drinking a glass of wine a couple of nights during the week and "more" on Fridays and Saturdays, [14] and that in 2011 she was drinking on average, one glass of wine per night. [15] 3. Katrina initially agreed in cross-examination that between July 2011 and November 2012 her alcohol intake had reduced: "Q: Certainly, do you recall whether the fact was that between July 2011 and November 2012, your daily alcohol intake had reduced? A: Yes." [16] 1. This would be consistent with what Katrina told Dr Bleasel was the position by November 2012. However, a little later in her cross-examination she stated that her alcohol intake increased during this period: "Q: You would agree would you not, Mrs Polsen, that between July of 2011 and November of 2012 you had reduced the amount of alcohol that you drank? A: No. I was actually drinking more." [17] 1. Later in her cross-examination Katrina conceded that she did not know how much she was drinking in 2011 and 2012, but that her alcohol intake increased in 2013 due to being stressed at work. [18] 2. Dr Bleasel, in her report dated 16 July 2011 recorded that Katrina told her in July 2011 that she was drinking 20g to 30g of alcohol a day (equivalent to 2 to 3 standard drinks a day). [19] In her 19 November 2012 report Dr Bleasel observed: "fortunately she has reduced the amount of alcohol she drinks". [20] 1. Dr Rees, Psychiatrist, in February 2017 recorded the following about what Katrina told her about alcohol use: "She denied any problems with drugs in the past or alcohol problems. This was re-checked related to the notes of Dr Chow considering whether she may have alcoholic liver cirrhosis and she denied that she has used alcohol excessively in the past." [21] 1. Katrina's husband Richard, daughter Tahlea and sons Cody and Wade gave remarkably similar evidence regarding Katrina's alcohol consumption in their statements all of which were dated 9 October 2020. That evidence was to the effect that Katrina's drinking involved a bottle of wine a night and heavy drinking on weekends involving wine and vodka Red Bull. I have doubts about the reliability of this evidence. There was no acceptable clarity or specificity as to the time period(s) or the days on which this consumption occurred. Richard was a truck driver who stated that he was often away for work during the week and so it was difficult to see how his evidence was based on first-hand observations. 2. Unfortunately I have concluded that Katrina's evidence about what she said about her alcohol intake to Dr Harrison and Nurse Aicken and the dietician Ms Howard, what she alleged about that in her statements prepared for these proceedings, and her evidence before this Court, was and is wholly unreliable on the question of her alcohol intake and what she told people about her alcohol intake. If what Katrina's family said about her alcohol consumption applied to March, April, May or June 2013, what Katrina told Dr Harrison and his staff about her alcohol consumption was untruthful. I accept that Dr Harrison, Nurse Aicken and Lisa Howard recorded what they were told by Katrina about her alcohol consumption in March, April and May 2013 when they each discussed this issue with her. I accept their notes were made contemporaneously and accurately record what she told them. It is not now possible to conclude what Katrina's true alcohol consumption was. I suspect Katrina lied to herself about this and also lied to others, including her lawyers, and other doctors such as Dr Bleasel about the true position. Consultation with Nurse Aicken – Bariatric Nurse – 13 March 2013 1. On 13 March 2013 Katrina consulted Dr Harrison's bariatric nurse, Ms Aicken. Katrina alleged in her statement that in the years prior to consulting with Nurse Aicken she would drink a bottle of wine most weeknights and drink "very heavily" on weekends, including both wine and spirits and would become quite intoxicated. [22] (Emphasis added). 2. During cross-examination on this issue Katrina said that she told Nurse Aicken that she "was" drinking at least a bottle of wine a night, but that she did not tell her about her heavy drinking on the weekends. [23] This was despite the fact that Katrina knew that she had to tell the nurse the truth about what she was drinking. [24] 3. However, later in the cross-examination Katrina agreed that she had in fact told Nurse Aicken that she was only having one alcoholic drink a day, being a glass of wine. [25] 4. Nurse Aicken's notes refer to a history being given by Katrina of one drink per day. [26] Nurse Aicken explained in her evidence that this was a reference to one standard drink per day. [27] 5. Katrina alleged in her statement that Nurse Aicken did not discuss the weight loss surgery nor provide any advice or education as to eating or diet or reducing her alcohol intake. [28] I do not accept this evidence is true given the notes made by Nurse Aicken at the consultation, her statement dated 19 November 2020 and Nurse Aicken's evidence as to her usual practice, which I accept as truthful. 6. Nurse Aicken carried out a physical examination and recorded Katrina's weight as 115kg, waist measurement of 118cm and height of 154cm. This comprised a BMI of 48.5. [29] She recorded that Katrina told her that she was consuming "lots of diet coke and other soft drinks (at least 600mls) each day". [30] To the extent Katrina claimed that she told Nurse Aicken that she "was drinking at least a 3 litre bottle a day, well, or I was drinking a lot of diet coke", [31] I do not accept that Katrina told Nurse Aicken she was drinking 3 litres of diet coke a day. I am confident that if she had, the assertion of 3 litres of coke per day would have been recorded by Nurse Aicken, not, "at least 600mls". 7. Nurse Aicken recorded that Katrina told her that she knew Josie Lowing, Mary Gist, Belinda Oakman and Bobby "someone" who had had bariatric surgery and that Katrina told her she had done "lots of research on the internet" about bariatric surgery. Katrina did not recall giving these names to Nurse Aicken. [32] Katrina recollected very little of this consultation and I consider that what she does recollect is so limited that it is an inaccurate reflection of what she told Nurse Aicken and what was in fact discussed with her. 8. Nurse Aicken stated that Katrina told her that she had already been to a seminar in Sydney about bariatric surgery and that she was going to attend the seminar conducted by Dr Harrison on 11 April 2013. [33] Katrina denied that she ever went to a seminar in Sydney. Given Katrina's very poor recollection I could not assess whether this was true or not, but I consider it most unlikely Nurse Aicken would include such a specific detail in her records unless Katrina had told her that. However I find nothing turns on this. 9. Nurse Aicken's usual practice was to discuss the differing results that may be expected following the surgery and the need to make lifestyle changes and follow good eating habits. [34] I accept she followed her usual practice with Katrina and to the extent Katrina asserts that there was "no discussion" about diet and the need to change her diet, I reject Katrina's evidence. 10. Nurse Aicken said in her statement that during the consultation she provided Katrina with the four-page information sheet published by the Royal Australasian College of Surgeons ("ACS") titled "Weight Loss Surgery" and that it was her practice to encourage the patient to read it carefully and to contact her if they had any questions. [35] This information sheet covered the risks and benefits of bariatric surgery and set out examples of poor candidates for bariatric surgery, which included those with an addiction to alcohol or drugs. The sheet also set out the possible complications of bariatric surgery which included general surgical risks and specific risks of bariatric surgery. [36] It is, in my view, a clear and comprehensive document and a copy of it is appended to this judgment given the critical material it contains. I am satisfied that the document was in fact provided to Katrina and some of its key points referred to by Nurse Aicken in the consultation. 11. The "specific risks of bariatric surgery" listed in the ACS document were: · Poor healing, gastric pouch blockage, or damage to the pouch if the patient ignores postoperative diet instructions · Vomiting; severe and intractable vomiting is uncommon · Poor weight loss if the gastric pouch is too large · Persistent abdominal pain · Intolerance to dairy foods · Incisional hernia or internal hernia, which require prompt surgical treatment. · Seroma, a collection of serum (the clear fluid of blood), which tends to fill any open space in a wound; a seroma may need to be drained · Heart arrhythmia · Inflammatory hepatitis, a liver problem caused by rapid weight loss · Malnutrition, which can cause nutritional deficiency diseases such as scurvy, osteoporosis, anaemia, beri beri, pellagra or kwashiorkor or, some patients will need to take life-long vitamin supplements · Loss of muscle mass · Depression · About one or two in every 10 patients will need some type of corrective procedure or surgery to treat complications · About three in every 10 patients develop gallstones during the first few months after bariatric surgery. While substantial weight loss does increase the risk of gallstones, obesity poses a greater risk 1. Also relevantly listed is the risks specified of Roux-en-Y gastric bypass: · As the stomach can no longer regulate the amount of food entering the small intestine, a large meal will flood the intestine and can cause dizziness, abdominal cramping, pain, nausea and diarrhoea. This is called "dumping syndrome". Lying down slows the passage of food and should ease symptoms in 30 to 60 minutes · See page of gastrointestinal fluids through the sites of surgery to the stomach or small bowel (anastomotic leaks); this may require further surgery and a longer hospital stay · Pneumonia (lung infection), which requires emergency hospital treatment · Acute distention of the lower part of the stomach · Stomal stenosis, an abnormal narrowing of the intestine where it is stapled to the gastric pouch · Bowel obstruction · Gallstones · Marginal ulcer, a breakdown of tissue at the junction of the gastric pouch and intestine, caused by stomach acid · Persistent constipation or diarrhoea · Further surgery to treat a complication · Risk of death varies from about one in 1,000 to one in 200 (depending on the health of the patient). It may rise to one in 100 for some patients who smoke or have chronic medical conditions 1. Katrina conceded in cross-examination that she signed her second statement without reading Nurse Aicken's statement. [37] This is significant because Katrina's second statement comprises a series of responses to Nurse Aicken's statement. This leads me to hold a concern that either the statement does not truthfully reflect Katrina's recollection as at November 2020 of the consultation with Nurse Aicken, or Katrina did not fully engage her mind in the statement preparation exercise, or her recollection is so poor that she did not recall that two months before she gave evidence and was cross-examined in February 2021 that she had in fact read Nurse Aicken's statement and prepared and signed her statement in response. Whatever reason applies adds to my concerns about Katrina's overall reliability in her account. The "Information Session" on 11 April 2013 presented by Dr Harrison and attended by Katrina 1. On 11 April 2013 Katrina attended a seminar presented by Dr Harrison at a club in Wagga. The education seminars were regularly conducted by Dr Harrison with other members of the multi-disciplinary team. Dr Harrison stated that the purpose of the seminar was to ensure anyone contemplating surgery is well-informed. [38] 2. I am of the view that such a seminar has a limited role on the question of patient education and warning of risks because the setting - a hall with no direct one-on-one contact between the presenters and the patient unless sought out at the end - means that there can be no clarity as to what parts of the seminar the potential patient was present, or could or did see or hear, and no way of checking their understanding of the content. I view it as an adjunct only to the other very comprehensive information discussed with Katrina and provided to her in written form by Nurse Aicken, Ms Morrow the dietician, and Dr Harrison in their consultations with her in March and May 2013. 3. In her statement Katrina alleged that she did not recall any PowerPoint presentation at the session and asserted that Dr Harrison did not speak about patients who were not suitable candidates for surgery or the circumstances in which a person would not be considered a suitable candidate for the surgery. [39] In cross-examination however Katrina acknowledged that she "must have" seen the slides and alleged that she did tell her legal representatives that she had seen the PowerPoint slides, [40] but that she did not remember much from the seminar and had no memory of the information set out in the PowerPoint presentation by the time of her cross-examination in February 2021. [41] 4. I accept Dr Harrison's evidence set out in his statement and further outlined in cross-examination as to what he did present at the seminar, but this does not remove or modify his duty to warn Katrina of relevant risks in person in the consultation setting and ensure she has received the necessary information. I will return to this subject when I deal with the evidence of the liability experts. Consultation with Lisa Howard (nee Morrow), a dietician attached to Dr Harrison's practice – 10 May 2013 Consultation 1. On 10 May 2013 Katrina attended a consultation with Lisa Howard, an accredited dietitian associated with Dr Harrison's Practice. Ms Howard was part of the multi-disciplinary team assisting with the pre and post-operative management of Dr Harrisons' bariatric surgery patients. [42] "Shaping Solutions" where she worked was located in the same building as Dr Harrison's rooms. 2. Ms Howard had no recollection of the consultation with Katrina in 2013 and prepared her 2020 statement based on her usual practice. She stated that her consultations with patients contemplating bariatric surgery usually occupied about an hour. [43] This differed from Katrina's assertion that this consultation was "ten to fifteen minutes" or that she "thought it was only about that long". [44] It was evident from Katrina's answers in cross-examination that she recalled very little of that consultation. I do not accept that Katrina has any reliable recollection of the length of the consultation. 3. Ms Howard stated that in accordance with her usual practice, the first part of the consultation involved obtaining detailed information from Katrina about her medical history, her dieting and social history, her height and weight and current eating patterns. [45] During the consultation Ms Howard completed the "Bariatric Surgery Nutritional Assessment Form" ("the Form") which is a very comprehensive document, thoroughly completed, addressing personal details, medical history, weight assessment, goal weight, dieting and weight, social history, physical activity and physical activity plan and smoking and alcohol. 4. Katrina alleged in her statement that she told Ms Howard that she was drinking "a fair bit" [46] and that she told Ms Howard that she was drinking at least a bottle of wine a night and drinking on the weekends. [47] 5. Ms Howard's notes record the following: "alcohol: every night, 2 cans spirits or 1 to 2 glasses of wine". [48] I have no reason to doubt that Ms Howard accurately recorded what Katrina told her. I do not accept that Katrina told Ms Howard that she was drinking a bottle of wine a night and drinking "more" on the weekends. 6. In cross-examination on 6 December 2021 Katrina admitted that she could not then recall her alcohol intake in March, April and May 2013, [49] but that she knew that by June 2013 she was in fact only drinking one glass of wine a night. [50] 7. The Form continues with a very detailed analysis of what Katrina told Ms Howard she was eating and drinking. Under the heading "Assessment" the following appears: "Liquids: Inadequate H20. Excessive alcohol, juice, softdrink"; and "Softdrink: 600mls bottle (diet) used to be 3 x 2L coke". (Emphasis added). 1. The second part of the consultation involved Ms Howard educating the patient about the diet that she would need to adopt before and after the surgery and the changes that would need to be made to eating behaviours and lifestyle. Her practice was to tell the patient that the surgery was "just a tool" to help them lose weight, and that they would need to make the dietary and lifestyle changes to have a successful outcome. 2. Ms Howard stated that her usual practice was to provide the patient with handouts setting out information concerning what to expect with sleeve gastrectomy surgery, long term weight loss and maintenance and the diet to be adopted in the pre-operative period which included reference to Optifast products as well as the post-operative diet. [51] Her notes recorded the following: "Education Provided: ✓ 1. Booklet re Nutrition and the: Sleeve ✓ 2. Long term food and nutritional guidelines for sleeve gastrectomy/band ✓ 3. Metabolism and weight loss in relation to energy intake verses output. Used examples based on diet history ✓ 4. Liquids which will impair weight loss ✓ 5. Importance of exercise after surgery ✓ 6. Alcohol & kilojoules & the effect on weight loss ✓ 7. Non-hungry eating and psychological aspects associated with weight gain and dieting. ✓ 8. Two weeks pre-op Optifast stage ✓ 9. Post-op nutrition up to wk 4. Other Assessment comments: Katrina's metabolism would most likely be very slow 2* skipping BF [breakfast] + no exercise. Katrina also appears to consume excess kj via fluid form and appears to be comfort/emotional eater w/ nibbling ++ I D/W Katrina the importance of regular meals + planning and to make dietary + lifestyle changes post op to be successful long term. Also D/W Katrina that she may need to deal w/ reason she is comfort eating post op as they may not "go away" w/ wt loss. Will most likely require support post op." 1. Katrina asserted in her statement that Ms Howard did not discuss the weight loss surgery, nor provide any advice or education as to eating or dieting or reducing her alcohol intake and that she was only advised to try walking and swimming. [52] I reject Katrina's evidence to that effect as unreliable. The comprehensive assessment notes, combined with Ms Howard's evidence about her usual practice, satisfy me that not only were those matters discussed, they were discussed in detail, and the consultation likely took one hour or very close to that length of time. 2. Katrina also claimed that she did not receive any handouts from Ms Howard, [53] although she recalled being informed about the Optifast diet and recalled being aware of the post-operative diet including the fluid diet and puree diet but she could not recall if she was informed about these by Ms Howard. [54] I reject as unreliable Katrina's evidence that she was not provided with the specified handouts, and conclude that the handouts identified and ticked in the records as given by Ms Howard were in fact given to Katrina. 3. One handout was titled "What to Expect Sleeve Gastrectomy - an Overview". The first part of the document stated: "The Sleeve Gastrectomy is a restrictive weight loss operation, which if used correctly will assist you in achieving your goal for weight loss. The outside part of the stomach is removed and the shape of the stomach is changed from a sac to a long narrow tube. The gastric volume is reduced by 80%. Therefore you will feel full with ¼ of your current food intake. How will Sleeve Gastrecomy help me to lose weight? Sleeve gastrectomy will help you in 2 ways: By helping you feel satisfied with a smaller amount of food as your new stomach is much smaller – its volume is about 20% of your original stomach. The outside part of the stomach which produces the hunger hormone Grehlin is removed resulting in a initial profound loss of appetite. The restrictions in total food volume results in reduction in total energy intake, hence your body is forced to use its own stored energy and therefore weight loss occurs. Your Sleeve will help you to eat less food, and still be satisfied. Less food = weight loss This operation is not a quick fix or a magic wand. You should think of it as a tool to help you with your weight loss journey. For best results you will still need to make changes to your lifestyle and eating patterns. But having a sleeve gastrectomy can help to make these changes." (Emphasis in the original). 1. This is followed by a very comprehensive nutrition program with explanations, guides about what and when to eat and the need to exercise, together with meal plans and recipes for weeks 1 to 2 and 2 to 4 weeks post-surgery. Attendance at Wagga Wagga Base Hospital on 17 May 2013 1. On 17 May 2013 Katrina attended Wagga Base Hospital Emergency Department ("ED") complaining of shortness of breath. As part of the history taken there as set out in the Discharge Summary, she told the ED staff that she was drinking three to four alcoholic drinks per night, [55] however there is no evidence that Dr Harrison or any of his staff saw that entry prior to the surgery which was performed at Calvary Riverina Private Hospital two months later. 2. One possible explanation for this discrepancy is that Katrina was deliberately understating her alcohol consumption to Dr Harrison and his nurse and dietician so that Dr Harrison did not say that she could not have the surgery. On my assessment Katrina had decided the surgery was the solution to her weight issues and she did not want to be denied it, and was prepared to say whatever she thought she should say to Dr Harrison and his support staff to ensure she was given the surgery. The consultation on 28 May 2013 between Ms Polsen and Dr Harrison 1. Katrina had one consultation with Dr Harrison before the surgery and this was on 28 May 2013. Dr Harrison's evidence in chief was set out in his detailed statement of 20 November 2020. Dr Harrison said it was his usual practice prior to the consultation to review the referral letter (from Dr Bartusek), the notes made by Lisa Howard and Katrina Aicken, and any available pathology results. [56] I accept he did so in this case. The following chronology is taken from Dr Harrison's records [57] unless otherwise indicated. 2. The referral letter from Dr Bartusek stated: "Thank you for seeing Mrs Katrina Polsen, for an opinion and management. Wish to discuss further management for overweight and discuss option of bariatric surgery - gastric sleeve Allergy History Nil Known Severity: Not Established Current Medication Advantan Cream 1 mg/g 15 g [1] Betaloc (Tablets) 50 mg [100] - 1 tab mane. - Rpt:3 Coveram 5 mg/10 mg Tablets [30] -1 daily po - Rpt:5 OxyContin Tablets (Controlled release tablets) 15 mg [28] - 1 tbl bd po Panadeine Forte (Tablets) [50] - 2 tabs 6th hourly prn. Valium (Tablets) 5 mg [50] -1/2 tbl bd po PRN 1-2 tbl nocte po PRN Medical History Rheumatoid Arthritis - awaiting review by Dr Jane Bleasel (2012) Previous Helicobacter pylori - treated in 2012 HTN Hysterectomy (preserved ovaries and cervix) 3x LSCS 4 x laparoscopies - found multiple adhesions FHx of CRC - last scope 2012." 1. Dr Harrison obtained a medical history from Katrina. She told him that she wanted gastric sleeve surgery. This is consistent with Katrina's repeated acknowledgment in cross-examination that she wanted to have the gastric sleeve procedure because "that is what Josie had". In accordance with his standard practice, Dr Harrison discussed the different types of bariatric surgeries available. [58] Katrina recalls little of the discussion about other procedures. It is very clear that she was determined to have the gastric sleeve procedure. 2. Also the other procedures were illustrated and explained in the Royal Australian College of Surgeons four-page "Weight Loss Surgery" document that I have found Katrina was given by Nurse Aicken in March 2013. In cross-examination Katrina acknowledged that she was "not interested" in having lap-band surgery and was aware of the complications that procedure had caused to her aunt. Katrina also confirmed that she knew about the Roux-en-Y at that time. [59] 3. Dr Harrison's note of the consultation is as follows: "All: Nil Meds: Atacand 115 kg MTX [methotrexate] Smoke: No ETOH: 750 ml wine /n day (↓) H20 / diet coke 40 Cash converters Husband - truck driver - 3 kids 21, 20, 18 Seminar✓ Friends✓ Internet✓ KA✓ LM✓ Past hx: hysterectomy, Caesar No DM, OSA, HT - AS BIG NOW AS EVER ↑ since hysterectomy ↑ 10 years tried everything - lost up 20 kg (diet, ↓ softdrink, walking) - Duromine no breakfast, "picker" chicken, chocolate Husband not present - initially resisted now supportive considering OT for years + read widely Catalyst friend Josie Lowing (+ others) esp watching her progress, counselling etc Wants SLEEVE: read / several aware bands, aware RYGB (routines) Technique✓ TO / RTW ✓ Peri op routine / diet etc Results - early results Lack of LT WL data - quoted ~ 60% / EBW ~ 1 yr NO GUARANTEES LIQUID CALORIES discussed esp above / ETOH LT f/u ū results R + C 1 - 2% leak / bleed outcomes Re OT / Lap open / prolonged hospital stay TPN / ICU / drains DVT / pain / failure surg OPTIFAST ✓Questions✓" 1. Dr Harrison stated that he followed his usual practice and informed Katrina that every surgery has risks and complications. This information included the following. There are two particular complications which he says he emphasised could result in hospitalisation, sometimes for extended periods of time. These complications were bleeding or a staple line leak. The risk of these occurring is 1 to 2%. There are plenty of other complications, but these are the two he would really worry about. The most feared complication is that of a leak and in his practice that risk is 1 in 100. If you get a leak, it does not occur at the time of surgery, but is a healing issue. [60] 2. Katrina asserted in her statement that Dr Harrison did not discuss with her the risk of a leak following the surgery. [61] I consider that evidence to be unreliable and incorrect, rather than deliberately untruthful. I am satisfied that Dr Harrison discussed the risk of gastric leak in the detailed manner and terms set out in his statement: "33. In accordance with my usual practice I advised Ms Polsen with words to the following effect: every surgery has risks and complications and this is no different. There are two particular complications which I emphasise which could result in hospitalisation, sometimes for extended periods of time. These complications are bleeding or a staple line leak. The risk of these occurring is 1 to 2%. There are plenty of other complications but these are the two we really worry about. The risk of bleeding is less than 1% but it usually happens while you are still in hospital. It occurs on the first night or the second day rather than in the operation. If we have to take you back to theatre we would perform keyhole surgery using the existing incisions. We try to identify the site of bleeding but it is not uncommon to have trouble identifying the exact site of bleeding. In some circumstances you may require an open procedure. You may need a blood transfusion if the bleed is significant. 34. I also advised with words to the following effect: the most feared complication is that of a leak and in our practice the risk is 1 in 100. If you get a leak it does not occur at the time of surgery, it is a healing issue. The classic timeframe for a leak is between day 10 and day 25. The hole is always small and invariably in the top part of your stomach. It is very rare for us to see a leak beyond that area. If you have a leak, you may have vague symptoms. You won't feel right. You should ring us as we lake any concerns seriously. We may run a series of tests and might scan you. If we find a leak, you will be admitted to hospital to deal with the leak. Rarely a leak requires re-operation but ii will require antibiotics, drips and tubes. You may need to be tube fed through your nose. You may need long term feeding through a tube or drip. A leak can lead to a prolonged hospital stay. You may need to go to intensive care. Readmission is not uncommon. 35. I further advised with words to the following effect - there are other complications as well such as DVT and pulmonary embolism but we have techniques to reduce the risk including with injections and stockings. You may also experience pain and the surgery may fail, meaning that you may not get the result you are looking for." 1. Dr Harrison stated that he said on more than one occasion in the consultation that Katrina would need to reduce her liquid calories including from soft drink and alcohol as they were a significant contributor to weight gain. [62] Katrina claims that Dr Harrison did not tell her this, but it is clear from Katrina's oral evidence that she had very little recollection of her consultation with Dr Harrison. I accept Dr Harrison's evidence on this issue. 2. Dr Harrison advised Katrina that she could access her superannuation to fund the surgery. [63] Contrary to the implied criticism embedded in the references to this by senior counsel for the plaintiff, I see nothing sinister or of concern in this information being provided to a potential patient seeking surgery directed to improving the longevity and quality of life for a morbidly obese woman. 3. At the conclusion of the consultation, Katrina signed a consent form for laparoscopic sleeve gastrectomy and laparotomy surgery dated 28 May 2013. Although she does not recall signing it, she acknowledged in cross-examination that it is her signature. [64] 4. Dr Harrison wrote a letter to Katrina's GP, Dr Bartusek on the day of the consultation which stated: "I was pleased to see Katrina today. She looks well. She is 40, married, with three children, and weighs 115 kilos. She is of short stature and this gives her body-mass index of nearly 50. She does have hypertension but no other major comorbidities at this lime. She has been considering weight loss surgery for a number of years. She has considerable number of friends who have gone ahead with the surgery and she has been watching their progress carefully. She is presently as large as she has ever been. She has tried many conventional diets over the years with variable success but with no long-term durable weight maintenance. She has had problems with drinking up to 750ml of wine per day as well as soft drink. Both of these have been decreased, but I have reiterated the Importance of liquid calories with her today. After discussion of all the options, she wishes to undergo a sleeve gastrectomy. This is reasonable. She has a clear understanding of not only its technique but its perioperative returns and outcomes. We have talked about its results, both short and long term. She is aware of a lack of long-term weight loss data with this type of surgery. We have talked about the risk profile and the consequences if she would have a perioperative complication. I was impressed with her level of knowledge and I am happy to go ahead in the near future. I will let you know how we get on." [65] (Emphasis added). Conclusion regarding pre-surgery advice 1. Katrina remembered almost nothing about her interface with Nurse Aicken, Ms Morrow the dietician or Dr Harrison, despite what I have concluded were lengthy and thorough discussions and provision to her of detailed, clear and helpful documents and instructions. Both Ms Morrow and Dr Harrison counselled her about the role of liquid calories in weight management in the context of her past history of excessive alcohol and soft drink consumption. I do not accept that she was not told of the need to modify those habits. However Katrina was most unwell for large parts of late 2013, 2014 and 2015 and beyond and in my view it is unsurprising that she remembers little. She volunteered in cross-examination that her "memory is really bad". [66] I accept that is so. This has the consequence however that she cannot be relied upon at all as to what was said or not said to her or what she did or did not tell Dr Harrison and his staff. 2. I have concluded that Katrina had a single-minded determination to have the gastric sleeve procedure and it is likely that she "switched off" to anything regarding warnings or complications. She had convinced herself, given Josie's great results, that it was a "quick fix", despite being informed to the contrary a number of times by Nurse Aicken, Ms Morrow and Dr Harrison. She unfortunately did not comply with the post-operation dietary advice as her clinical deterioration, non-attendances on the dietician and failure to implement appropriate and adequate nutrition demonstrated. The gastric sleeve surgery performed by Dr Harrison on 22 July 2013 1. On 22 July 2013 Katrina completed or gave answers to permit the completion of the pre-admission form at Calvary Hospital in which she indicated that she was drinking "a glass of wine a night". [67] 2. At about 7:20am on 22 July 2013 Katrina was admitted to Calvary Hospital and Dr Harrison performed the laparoscopic sleeve surgery. The operation course was outlined in a letter to Dr Bartusek dated 25 July 2013: "I was pleased to operate on Katrina at Calvary Hospital today and perform laparoscopic sleeve gastrectomy. Katrina has done well with Optifast. This went smoothly. Katrina had a favourable liver and no sign of hiatal hernia despite careful dissection. Using a ligasure, we mobilised the stomach down to within 2 cm of the pyloric channel through to the left crus. Over a 36 French bougie, sequential firings of Endo GIA amputated the dependent stomach. This was then oversewn with V-Lock sutures. Seamguard was used for the proximal staple line. I hope to discharge Katrina later in the week and follow-up will be in my rooms in about four weeks time." The post-operative course 1. The clinical notes indicate that Katrina was stable overnight with oxygen saturations of 100% on 3L via nasal prongs, and moderate amounts of PCA. Katrina complained of shoulder tip pain. At around 5:00am nursing staff noted that Katrina reported feeling faint when she got up to use the toilet but her observations were stable. 2. Katrina was medicated with Panadol, Maxolon and Atropine and had a physiotherapy consultation early that morning. Dr Harrison reviewed her at 8:00am. 3. At 3:00pm nursing notes stated that Katrina's wound stab sites were clean and dry however she had a "small haematoma to lower R stab site to abdomen". She was otherwise tolerating sips of water. She continued to complain of shoulder tip pain and was encouraged to mobilise, and was given Panadol lg IV at 5:00pm. 4. At 5:45pm nursing notes state that haematoma to the right abdomen stab site had increased in size since the morning and that her abdomen was soft and dry. 5. Dr Harrison reviewed Katrina that afternoon, examined her abdomen and consulted the observation charts. After a discussion with Katrina and the nursing staff, Dr Harrison made the decision to observe but no intervention was needed at that time. The nursing entry in the notes recorded: "Dr Harrison R/V and nil further orders". She was given Panadol 1g IV at 11:00pm. 6. Katrina was haemodynamically stable overnight. A nursing note timed at 5:00am recorded that the right stab site haematoma and bruising had not increased in size. During a physiotherapy consultation Katrina reported some upper central abdominal pain but that her shoulder tip pain was settling. 7. Dr Harrison reviewed Katrina at 8:00am and considered that she was stable and needed no intervention. 8. During the afternoon, the nurse caring for Katrina requested a review by the ICU doctor at the hospital. The ICU doctor did not make any entry in the records or contact Dr Harrison following his or her review but did order pathology. 9. At or about 6:30pm, Dr Harrison received a call from the nursing staff. He was advised about the blood tests results, including that Katrina's haemoglobin was 83g/L and CRP was 59.4. 10. On the basis of the haemoglobin result, Dr Harrison concluded that she had experienced a post-operative bleed. Her abdominal wall haematoma did not appear to account for the drop in haemoglobin. He diagnosed an intra-abdominal bleed (which could have been from the port sites, the staple line, the greater omentum, the liver or around the spleen) and which was reflected in bruising on the abdominal wall. [68] 11. Katrina remained haemodynamically stable and hospital nursing staff reported to Dr Harrison Katrina's temperature, pulse and respiratory rate. Dr Harrison took the view that no intervention was required and that nursing staff should continue observations, repeat the pathology and he would review her in the morning. 12. Nursing notes at 6:30pm record: "Pt care taken over @ 07.15hrs. Observations stable. Pt tolerating free fluid diet. Haematoma present to R side of abdomen has increased in size. Pt febrile 38. BP and HR stable. ICU Dr asked to see pt abdomen. Soft and dry. Pt for pathology only for blood cultures when temp ↑ 38.5. Pt HB 83. Dr Harrison phoned and pt for repeat pathology in mane.? to W clexane in morning. Pt otherwise ambulant and S/C. Nil complaints nausea. Pt tolerating po medications. Teds ✓. Nil complaints voiced." 1. The nursing notes recorded overnight were as follows: At 10:00pm on 23 July: "Care taken over at 19.15. patient checked. Obs checked. T37.8. Pulse 90. Haematoma marked, remains soft. Analgesia given as charted. Patient settled early, tolerating free fluids." At 2:50am on 24 July: "Patient settled when checked. Obs taken overnight. Temp 37.2 at 24.00. Haematoma checked S + D sml area of extension on lower margin. Stated she was comfortable." At 5:15am on 24 July: "Settled between cares, analgesia given as required, haematoma as marked last evening slightest extension in some areas. Temp settling 37. Pulse 80." 1. Dr Harrison reviewed Katrina between 7:30am and 8:00am on 24 July and noted that she was stable and potentially suitable for discharge. Her pathology results were not yet available when he saw her. Dr Harrison says that he intended to decide whether to discharge her or to perform further investigations once he had reviewed the pathology results from that morning. 2. The nursing notes at 8.00am recorded: "Took over the care from night shift staff. Pt haemodynamically stable and afebrile. Ambulant and self-caring. Withholding clexane until further clarification from Dr Harrison regarding the haematoma. Nil other concerns at the moment." 1. At 9:19am Katrina had a physiotherapy consultation and at some point after 8:47am, nursing staff contacted Dr Harrison and reported the blood tests results. Her haemoglobin had increased to 88 mg/L. The rise in haemoglobin, together with her clinical condition satisfied Dr Harrison that Katrina could be safely discharged to her home in Wagga, mindful that post-discharge review could be easily arranged. When challenged in cross-examination about the wisdom of her discharge at that point, Dr Harrison explained that her pulse and blood pressure were normal, she was haemodynamically stable, her pain had improved and her respiratory function was satisfactory. [69] Dr Harrison had discussed his post-operative discharge information with Katrina in anticipation of her discharge. The sheet provided telephone numbers to contact if concerns arose. Dr Harrison also reminded Katrina that she could contact Calvary Hospital 24 hours a day, and that he could be contacted through the hospital if necessary. 2. Dr Harrison explained in cross-examination [70] that the bruising on the abdominal wall was not surprising given Katrina's BMI of almost 50 and this did not mean she was bleeding. She had had a "bleed" and the recovering haemoglobin was reassuring, noting that the haemoglobin would not "suddenly return to normal the next day". [71] It would not be appropriate to reoperate in circumstances where Katrina was clinically stable, and there would be a high risk of disrupting the staple lines of the surgery if surgery was undertaken at that point, 48 hours after the initial surgery. 3. The nursing notes at 10:00am on 24 July 2013 recorded: "Dr Harrison rang and advised pt to have injection clexane and discharge home. Discharge medications handed over w patient. Follow up appointment has been made and given w patient. Haemodynamically stable. IVC removed from right hand. Pt left HDU in care of her son at 10.00 hrs. Nil other concerns." 1. On 31 July 2013, Katrina presented to the ED of WWBH complaining of acute abdominal pain. 2. A CT scan was ordered which demonstrated a gas-containing collection at the cardio­oesophageal junction which required a washout and drainage, with nasogastric feeding. She was transferred to Calvary Hospital on 1 August and Dr Harrison performed an urgent laparoscopy for peritonitis. Dr Nicholas Williams (Dr Harrison's colleague) assisted. Dr Williams was and is a specialist upper gastrointestinal and bariatric surgeon in Wagga, who from time to time assisted in Katrina's care. 3. Dr Harrison reported that he reintroduced all ports through the scars from the previous surgery and found offensive fluid in the upper quadrant and infected haematoma on both sides of the cardio-oesophageal junction and the proximal fundus. The staple line was intact. Following evacuation of the haematoma, Dr Williams performed a gastroscopy in conjunction with a laparoscopy. Dr Harrison concluded that Katrina had a viable looking stomach. There was no leak from under water seal, and no bubbles. The scope was passed to the antrum and a nasogastric tube was placed. Dr Harrison noted that the morphology of the sleeve was appropriate and specifically no stricture was encountered. [72] He made these observations by viewing the stomach on the video screen while performing the laparoscopy. 4. Dr Harrison recorded the following in Katrina's patient notes about this surgery: "Readmitted @ WWBH A+E gas containing collection @ COJ OT with NW Laparoscopic washout / drainage / NGT / endoscopy → ICU @ C → Percut. drainage @ C/XR 5/8/13 (I Duncan)." 1. In his statement Dr Harrison said this about his approach: "76. I decided to treat the leak by inserting a drain and resting the stomach. The key issue during that admission was to control her sepsis by appropriate drains at multiple sites that had fluid collections as well as IV antibiotics and ensuring comprehensive nutrition with TPN feeding. 77. I held a family conference on 5 August 2013 to discuss her current condition and the treatment plan. We discussed the various options of treating leaks. This discussion covered the use of stents, the possibility of further surgery (gastric bypass) as well as the existing plan (drains, antibiotics and TPN). We also discussed the possibility that she might need a gastric bypass in the future. 78. Over the course of the admission, Ms Polsen began to respond to the treatment plan. She had regular assessment with chest x-rays, Doppler studies, Barium swallow testing, PICC insertion, CT studies and contrast dye studies. By 23 September 2013 she was eating and drinking. She was clinically well with no signs of sepsis. She was discharged on 23 September 2013. 79. I have read paragraph 75 of Ms Polsen's statement in which she records that I said to her daughter Tahlea "sometimes if after removing the portion of the stomach we do not staple it together properly, a leak can develop". I did not say that to Tahlea or Ms Polsen while she was a patient at Calvary Riverina Hospital in the admission commencing 1 August 2013." 1. Whilst not referred to in his evidentiary statement of November 2020, on 6 August 2013 Dr Harrison telephoned Dr Michael Talbot at St George Hospital (see note in the Calvary Hospital records on 7 August 2013). The purpose of the telephone call was to discuss Katrina's management, including the potential use of a stent. As a result of that discussion, Dr Harrison did not change his management plan. Dr Harrison explained in cross-examination that Dr Talbot was the foremost authority on stent use, and that is why he discussed the matter with him. [73] Dr Harrison further explained that stents were a "complex discussion" being experimented with at the time and neither in August 2013 nor in February 2014, did the St George Hospital specialists he consulted with advise that a stent procedure should be done at those times. [74] 2. Katrina had further investigations before her discharge on 23 September 2013 including chest X-rays on 2, 5 and 8 August 2013, a CT of her abdomen and pelvis on 9 August 2013, a chest X-ray on 12 and 15 August 2013, a further CT of the abdomen and pelvis and drain insertion on 16 August 2013 (during which it is agreed, the previously noted gastric leak was still present), [75] a barium swallow on 21 August 2013, a further CT of the abdomen and pelvis with IV contrast on 26 August 2013 and a barium swallow on 12 September 2013. The barium swallow showed persistence of extra luminal leak lateral to the gastric sleeve. [76] 3. On 24 September 2013, Dr Williams and Ms Willis (a nurse) reviewed Katrina in Dr Harrison's rooms. Ms Willis recorded: "104.8 kg D/C from hospital yesterday. Coping well with pureed custards. Still draining 30ml overnight. Drain feeling uncomfortable. Some constipation, taking Benefibre. S/B NW. To see him again Friday. Drinking @ least 600ml - encouraged at least 1L / day No temperatures Taking Endone prn. Given B/S form and FBC, CRP for this Friday." 1. Dr Williams wrote to Dr Harrison and outlined the situation on 24 September 2013: "I discharged Ms Polsen from Calvary on the 23rd September. She is tolerating a fluid diet orally and continues to put out approximately 30ml per day of greenish milk from her abdominal drain. There has been no increase in the amount of drain output since increasing her oral intake, which is very reassuring. She is clinically well with no signs of sepsis. I saw her in the office today with Tracey and we are arranging for her to now progress her diet with the help of the dietician. I will review Katrina again at the end of the week with a repeat swallow and inflammatory markers." 1. On 26 September 2013, Katrina underwent a barium swallow reported as follows: "CLINICAL DATA: Leak - check. GASTROGRAFIN SWALLOW Standard gastrografin swallow/meal. Correlation is made with the previous study of 12/09/2013. There is costal cartilage calcification and surgical sutures in the region of interest. Allowing for this, there is a very small amount of contrast passing beyond the gastric lumen to lie in the region of the upper medial aspect of the pigtail of the surgical drain. This is much less than on the previous study. Comment: Very small residual leak, significantly reduced from the most recent comparison study." 1. On 29 September 2013, Dr Williams wrote to Dr Harrison: "Katrina's repeat swallow showed a dramatic reduction in the size of the leak. Her CRP is stable at 48 and her white cell count is normal. I rang Katrina tonight to see how she is going as we are about to go away for a week. Katrina tells me that she feels well, is eating normally, and her drain continues to put out approximately 40 mis per day. She saw her general practitioner today who was concerned about some exudate around the drain exit site and took a swap. I have counselled Katrina against taking antibiotics on the basis of this swab unless she feels systemically unwell. She will come back and see us on Tuesday, the 8th of October. If she becomes unwell in the interim, she will present to the Emergency Department." 1. On 10 October 2013 Dr Harrison reviewed Katrina with Dr Williams and Nurse Willis. Her weight was 99.5kg, a loss of about 15kgs. She reported that she had returned to work the week before and had been struggling as she needed to be on her feet all day. I accept that is true and Katrina would have had difficulty at work given her recent surgery and illness. She said that she had called in to work sick on the day of the consultation and the following day. Her drain was still draining about 30ml per day. She said that she was struggling to eat and drink and was having yoghurt, custard and ice cream and 600ml water per day. She also described pain in her mid-sternum and back and that she had been feeling "hot and cold" and was very tired. 2. Dr Williams and Dr Harrison recommended readmission to Calvary Hospital for a CT scan, rehydration and to check her drain. On 11 October 2013, Dr Harrison wrote to Dr Bartusek about this admission: "I have seen Katrina today at Calvary (11th October). We saw her in the rooms yesterday and readmitted her last night as she looked dehydrated. As you know, she has had a small gastric fistula and been able to cope with work over the last couple of weeks. Overnight she had no temperature and her blood count was normal. CT scan this afternoon (11th October) shows no sign of residual collection nor evidence of leak. As a result we pulled her drain out. Nick Williams will observe her over the next 24 hours or so and I will be following her up in the rooms next week. She has had a complex problem but I think she is now making on roads to nice recovery." 1. On 18 October 2013 Dr Harrison telephoned Katrina who told him that she was feeling a lot better and had not experienced any fever, sweats or a temperature and was happy to have the drain removed. Dr Harrison wrote in Katrina's records: "PHONE: D/W Katrina Feeling a lot better Happy to have tube out No fever/ sweats / temp Due to see us next week." 1. On 20 October 2013, Dr Harrison wrote to Dr Bartusek: "It was a very pleasing outcome last week and had tube is now removed. She is relatively comfortable and has no symptoms such to suggest a loculated collection. She is seeing us again next week and I am pleased that she is making a smooth recovery at this time." 1. On 25 October 2013 Katrina was reviewed by Nurse Willis who wrote: "97.8 kg Taken week off work 1200ml water / day. Eating soft foods but trying other things - chicken Was constipated this week. Took laxative. Needs to take Benefibre. Given constipation sheet Energy still low, taking Nutrichew 2 / day Some heartburn - given script Nexium 40mg Given blood test." 1. On 28 October 2013, Katrina was admitted to WWBH. A CT scan showed no evidence of a drainable collection and she was discharged the next morning. 2. On 7 November 2013 Nurse Willis wrote in Katrina's records: "Ph - in WWBH under Dr Hicks whilst RH away with pancreatitis ? having u/s for gallstones this am Pain when eating and drinking. RH to see tonight." 1. Dr Harrison outlined the circumstances of this admission in his statement at pars [92] to [93]: "92. On 6 November 2013 Ms Polsen was admitted to Wagga Wagga Base Hospital under the acute surgery unit with a provisional diagnosis of pancreatitis. I was consulted by the on-call surgeon. I saw Ms Polsen at the Hospital on 7 November 2013. An ultrasound was arranged to investigate the presence of gallstones. I reviewed Ms Polsen during her admission and she told me that the pain she was experiencing was different from the pain she had experienced previously. I reviewed the results of a CT, an ultrasound and pathology tests which had been undertaken. I observed that the CT showed no change in what at that stage was a resolved gastric fistula. The CT confirmed "no leak". She did have a thick-walled gallbladder with sludge and gallstones. The pathology results indicated that her lipase and liver function were abnormal. On my clinical examination there was no discharge from the drain site. She was transferred to Calvary Hospital on the evening of 8 November 2013. 93. I performed a semi-elective laparoscopic cholecystectomy on the afternoon of 11 November 2013. During the procedure, I found four quadrants of inflammatory adhesions particularly around the liver area. Most of these were filmy. The gallbladder was oedematous and mildly thick walled. When opened, it was packed full of sludge. I took a photo of this to show Ms Polsen. An intraoperative cholangiogram showed a 6-millimetre bile duct and fortunately no filling defects and smooth flow of duodenum. The liver bile duct appeared normal. I placed clips over the cystic duct and artery and removed the gallbladder. No lavage was required but I placed a drain." 1. On 11 November 2013 Dr Harrison sent the following letter to Dr Bartusek: "Katrina has been readmitted this last week through the accident and emergency department initially and across to the Calvary with what was likely to be in mild gallstone pancreatitis. Her pain was quite different to her previous times and indeed her recent CT's have shown no change in what is now a resolved gastric fistula. She does however have a thick walled gallbladder. Her lipase peaked at overall 1200 and liver function tests had shot up. The ultrasound confirmed these findings. After discussion of the issues, we went ahead as a semi-elective laparoscopic cholecystectomy on the afternoon of 11 November. I am not surprised to find four quadrants of inflammatory adhesions particularly around the liver area. Most of these were filmy. The gallbladder was oedematous and mild thick walled. When opened, it was packed full of sludge. Cholangiogram showed 6-millimetre bile duct and fortunately no filling defects and smooth flow of duodenum. The liver bile duct appeared normal. Clips were placed over the cystic duct and artery and the gallbladder removed. No lavage was required but a drain was placed. She will be in hospital for a couple of more days until she settles into some form of diet and I hope it is the beginning of her recovery." 1. Dr Harrison was of the view that her gallbladder histopathology confirmed cholelithiasis with no evidence of acute inflammation. I interpolate that gallstones developing in the first few months after bariatric surgery was listed on page 4 of the RACS Weight Loss Surgery document (annexure A to this judgment) given to Katrina as a specific risk of bariatric surgery for about 3 in every 10 patients. 2. Dr Harrison next reviewed Katrina on 21 November 2013. By now she had lost about 25kg from her pre-surgery weight and reported feeling "good". She did not report having any pain, and her liver function had improved. She told Dr Harrison that she had taken a redundancy at work. Dr Harrison scheduled her for review in four weeks. He wrote to Dr Bartusek to advise of developments. 3. Nurse Willis wrote in Katrina's record on 12 December 2013 as follows: "DNA. Mobile disconnected. Ph - still low in energy. Still c/o some discomfort in middle back, pain slowly getting better starting to eat better Rebooked 19.12.13." 1. On 19 December 2013 Dr Harrison received a call from Nurse Willis. She told him that she was reviewing Katrina who had reported feeling very unwell, with difficulty eating and drinking and no energy. Ms Willis reported that Katrina looked dehydrated and was complaining of pain in her back. Dr Harrison attended the rooms to review Katrina and arranged for her to be admitted to WWBH for fluids and pathology. Her weight at the consultation was noted to be 88.7kgs. 2. Katrina remained at WWBH between 19 and 21 December 2013 and presenting with abdominal pain. The 22 December Discharge Summary stated: "Thank you for reviewing Katrina Polsen a 40 year old female discharged on 22/12/2013 from Ambulatory care Unit at Wagga Wagga Base Hospital. Katrina Polsen presented to this facility with Abdominal pain. Summary of Care Mrs Polsen presented with abdominal pain, on a background of a gastric sleeve in July 2013, with post op leak requiring ICU admission, and ongoing issues with abdominal pain. She was referred to WWBH by Dr Harrison, after F/U in his rooms, with impression of dehydration. She complained on going issues with abdominal pain, and had a USS abdomen which a fatty liver, nil duct diltation. She was deemed fit for discharge on 21/12/2013 Discharge plan - D/C Home." 1. Katrina was again admitted to WWBH on 16 to 25 January 2014 presenting with abdominal pain and jaundice. The Discharge Summary stated: "Thank you for reviewing Katrina Polsen a 41-year-old female discharged on 25/01/2014 from Surgical Ward 2 at Wagga Wagga Base Hospital. Katrina Polsen presented to this facility with abdominal pain and jaundice. Summary of Care Katrina presented on 16/01/2014 with a 4 day history of lethargy, abdominal pain, nausea, vomiting, diarrhoea and worsening jaundice (dark urine, pale stools, pruritus) on the background of a gastric sleeve in July 2013. An abdominal US performed 2 days prior to admission showed no evidence of biliary obstruction. She was admitted under Dr Harrison for aggressive rehydration and antibiotics. Both CT and MRCP were normal, with no evidence of duel dilation or filling defects. Katrina was seen by Dr Chow for review of her chronic liver dysfunction, who felt she may have cirrhosis secondary to morbid obesity, alcoholism, methotrexate use and chronic unintentional paracetamol overdose. Katrina subsequently underwent an US guided liver biopsy before being discharged on 25/01/2014. The hospital noted Ms Polsen appeared malnourished with oedema. Plan: 1. F/U Dr Chow 2-4/52 for liver biopsy results." 1. This admission included a review by Dr Chow timed in the hospital notes at 5:00pm on 22 January 2014 which reported relevantly: "… 2. Alcoholism – regular drinker for 10 years and was drinking one bottle of wine daily for 1 year prior to surgery…" 1. On 29 January 2014, Katrina was admitted to WWBH presenting with jaundice, lethargy and de-conditioning, where she remained until 26 February 2014. The Discharge Summary stated: "Thank you for reviewing Katrina Polsen a 41 year old female to be discharged on 26/02/2014 from Surgical Ward 2 at Wagga Wagga Base Hospital. Katrina Polsen presented to this facility with jaundice, lethargy, deconditioning with a complicated surgical and medical hx. Summary of Care Ms Polsen was jointly admitted with surgical and medical teams for investigation of her ongoing decline following a complicated gastric sleeve resection. She presented with abdominal pain, low albumin, bilateral leg oedema, jaundice, lethargy, anorexia, anxiety. B/G Gastric sleeve for morbid obesity mid 2013 complicated by gastric leak at staple line long inpatient stay with percutaneous drainage and prolonged TPN represented with pancreatitis with stones noted in GB proceeded to lap chole (Dr Harrison) with normal operative cholangiogram subsequent raised LFT and bilirubin however multiple imaging (US/CT and MRCP) did not show any CBD obstruction multiple subsequent admissions for abdominal pain and dehydration Other C-sections x 3 Hysterectomy Laparoscopy for ovarian cysts Depression Rheumatoid arthritis - diagnosed 1.5 years ago. ANA speckled1:160, dsDNA positive 5.3, on OxyContin, ? prior MTX Social Lives with husband and children Denies ETOH ex-smoker - quit 11 years prior previously IADLs, but has been unwell since sleeve operation Issues During Hospital Stay 1. Liver failure Dr Chow suggested the raised bilirubin may be a multifactorial issue of NASH, ETOH, chronic low grade Panadol ingestion. Liver biopsy showed NASH. Low albumin - multiple transfusions Raised LFTs throughout admission Presented with mild hepatic encephalopathy- managed in ICU with lactulose Jaundice clinically improved over admission U/S showed no biliary obstruction 2. lntraabdominal fluid collection Drained with percutaneous abdominal drains known to Dr Ian Duncan Drained at approx. 100ml per day ?cause unknown Ct scan with contrast on 26/2/l 4 revealed that there may be small leak from staple line from sleeve Dr Harrison suggested that as collection is draining well from anterior drain, he would like to hold off surgical intervention until Ms Polsen's physical health improves methylene blue dye oral did not come out of drains lipase levels raised in drain fluid samples (?stuck in pancreatic tail) collection level has been decreasing with drains on repeat CT scans Dr Harrison advised no surgical intervention required 3. Malnutrition Likely caused by a combination of malabsorption and decreased intake. NJ feeds as per dietician. Low albumin (15-20) during admission Low potassium, low magnesium, low phosphate Dietician involvement 4. Aaemia Had multiple blood transfusions of PRBC on 11 /2/14 ?anaemia of chronic disease 5. Infectious Growth Multiple febrile episodes throughout admission Last fever on 17/2/14 Managed with advice from ID Westmead PICC line inserted on 19/2/14 Culture hx: 1 /2- BC staph aureus, urine culture Proteus Vulgaris, enteroccocus faecalis 1 /2- swab screen - MRSA, enterobacter cloacae 3/2- culture drain fluid - Staph Aureus, enteroccocus faecalis 4/2- culture drain fluid - Staph Aureus, enteroccocus faecalis 8/2- BC - no growth 8/2- urine MCS - Candida albicans 10/2- culture drain fluid - Candida albicans, enteroccocus faecalis 14/2- culture drain fluid - Candida albicans, enteroccocus faecalis vanB 14/2- Urine MCS - Candida albicans 1 6/2- culture tip eve - no growth 17 /2- culture drain fluid - Candida albicans, enterococcus faecalis vanB 1 8/2- BC no growth 19/2- culture drain fluid - enteroccocus faecalis vanB 21 /2- Urine MCS no growth 24/2- urine MCS no growth 25/2 culture drain fluid - Candida albicans heavy growth 26/2- BC - nil growth Abx hx: Iv Vancomycin Iv Merepenen IV linezolid, IV tazoxin, IV fluconazole - started on 18/2/14- switched to oral on 26/2/14 Oral abx ceased 4/3/14 6. Physical Deconditioning Managed in conjunction with Physio 7. Other issues during admission: Multiple episodes of hypotension Bil leg oedema - mx with lasix and mobilisation Impression: Small gastric leak from sleeve staple line complicated by intra-abdominal infection and physical detioration [sic] Plan D/C to home with scripts Drains in-situ front and rear RFA given to come back next Tuesday for repeat CT sinogram community nursing to record daily drain output and empty drains." 1. During this admission on agreed chronology [77] a dietician note on 29 January 2014 recorded: "… impression liver failure? Cause?... + SXH: previous ATOH use (1 bottle wine/night) Hasn't drank since surgery July 2013." 1. Katrina was again admitted to WWBH from 15 to 17 March 2014 where she presented with "NV and fevers". The Discharge Summary stated: "Thank you for reviewing Katrina Polsen a 41 year old female to be discharged on 17/03/2014 from Surgical Ward 2 at Wagga Wagga Base Hospital. Katrina Polsen presented to this facility with N/V. Ms Polsen re-presented to WWBH ED with N/V and fevers. referred diaphragm irritation past 3/7 left shoulder>right - likely collection in subdiaphragm region - no free gas under diaphragm on She was seen by ASu and stabilised 2x drains in-situ, no drain output in past 2 days Managed with slow IV fluid and IV AB CXR - no free gas Repeat CT revealed gastric leak still present, drain has moved away from leak as compared to previous Plan no PO abx will RV in clinic on Wednesday d/c to home." 1. On 19 March 2014, Dr Harrison wrote to Dr Bartusek: "I write to give you an update on Katrina. She is the most complex bariatric patient that I have dealt with in 10 years of doing this surgery. She continues to be a clinical problem, although is presently not in hospital and coping at home. Obviously whilst she has had excellent weight loss, this is the least of her major issues. In short, she was readmitted under the care of Nick Williams whilst I was away in January with acute sepsis. Her liver function tests at that stage were also abnormal and the concern was that she may have either had liver failure from hepatic steatosis, complicated bile duct issues or ongoing sepsis. Ultimately, the issues have become more obvious. To cut a long story short, she had an ongoing pancreatic chyle collection that required drainage. This was the single and most important determinant in her improvement. At that stage, ongoing investigations of her stomach including barium swallows and blue dye swallows as well as CT scan did not demonstrate evidence of a fistula. Indeed, it is some four months since the fistula was last demonstrated. She had improved significantly and indeed after review of all her imaging it was thought that she may have experienced a portal vein thrombosis. This has been recorded in bariatric surgery and in the context of pancreatitis and other gastronomic intestinal sepsis quite reasonable. Interestingly, her liver function tests have largely settled and she is starting to increase the amount of flow in her portal circulation hence a slight increase in the size of her spleen. All of these things are good news in terms of getting better. However, we demonstrated an air fluid level on one of her last CT scans that showed a possible leak on the proximal firing line of the sleeve. This was needled and drained. Subsequent studies down this tubing demonstrate communication with the gastric lumen. It is impossible to know whether this fistula has been present for the whole time or whether this has been reopened with instrumentation. Either way, she continues to improve and that is the most important issue. At present, she is an outpatient. We are continuing to discuss her case regularly as a group and liaise with radiology. We have had some exchange of drainage tubes. Whether or not we will be able to get this fistula completely closed with conservative treatment is yet to be determined. My major aim is to get her safely out of hospital, nutritionally improved and generally with the level of confidence that allows us to make further decision making. I will be in touch again as we progress." 1. On 25 March 2014 Dr Harrison performed a gastroscopy at WWBH as a day only elective procedure. The operation record stated that there was no leak, although there was purulent material in the proximal stomach. There was no evidence of stricture and the remainder of the stomach and duodenum were normal. 2. Dr Harrison next reviewed Katrina on 15 April 2014. Dr Williams and Nurse Willis also attended. Katrina told them that she was frustrated by pain and the two drainage tubes. She said she was having trouble eating and reported eating foods such as kebabs, cornflakes and a range of drinks. She reported having no fever, night sweats or anything to suggest she had an intra-abdominal abscess. She reported that her bowels had returned to normal and normal colour and consistency, as had her urine. She was looking "as well as he had seen her for several months" according to Dr Harrison. 3. There was a long discussion about in particular, if she continued to have a gastric fistula, how this may be managed. Dr Harrison told her that Dr Williams and he had been considering conversion to Roux-en-Y management once she was nutritionally well enough. However in the short-term, they agreed on a plan to repeat her bloods and CT scan with a view to considering withdrawal of the tubes. 4. Dr Harrison made the following notes in Katrina's record on 15 April 2014: "Rooms with son and TW/NW present throughout → frustrated by pain and tubes → anterior - green ~ 25 ml/day - "gurgles"?? fistula → posterior - painful and dry Urine / bowels Weight ✓ Trouble eating (also discussed drinks/ kebabs!! cornflakes!) Plan: repeat bloods esp nutritional parameters Re CT with contrast If fistula, consider roux-Y (starting to be well enough)." 1. Following the consultation Dr Harrison wrote to Dr Bartusek: "I saw Katrina in the rooms on 15th of April. She was seen with her son and in the presence of Nicholas Williams and Tracy Willis, my bariatric nurse throughout the whole consultation. II is pleasing to see Katrina now out of hospital for several weeks. Whilst she is naturally frustrated by the two drains that are still in her upper left quadrant which cause some discomfort, she does appear better and she discussed eating thinks today such as kebabs, cornflakes, and a range of drinks. Clearly, this is not necessarily ideal, but nevertheless, she has not had a fever, night sweats, or anything to suggest an intraabdominal abscess since discharge. Her bowels have returned to normal and normal colour and consistency as has her urine. She is looking now as well as I have seen her for several months. Nevertheless, we still need to manage these intraperitoneal drains. I will re-CT her early next week as inpatient at the base Hospital and hopefully, we will be able to consider withdrawal of tubes. We had a long discussion today trying to address her frustrating issues. In particular, if she continued to have a gastric fistula, how this may be managed. Once she is nutritionally well enough, consideration of conversion to Roux-en-Y management would be reasonable. Nicholas Williams and I have been discussing this for quite some time. However in the short-term, I am pleased to see she is improving and we will get back to you in the next week or two with her results." 1. On 22 April 2014, Katrina underwent a further CT of her abdomen and pelvis with IV contrast to monitor the progress of the fistula. The report of the CT stated: "Volume acquisition post IV and oral contrast. A left anterior pigtail drain tip is seen lateral to the liver and anterior to the stomach. There is interval resolution of gas locules in this region. Above the drain lip, a triangular inflammatory tissue measuring 13mm in depth is seen. There are two tiny small volume nodes anterior to the inflamed tissue. There is interval reduction in the size of the collection anterior to the splenic hilum and posterior to the stomach and surgical staples, currently measuring 31mm x 28mm, previously 36 x 37mm. The collection contains multiple gas locules appearing to be communicating with the posterior wall of the stomach consistent with persistent leak. The collection appears dense due to irregular thick wall and the amount of low density material is minimal compared to the previous study. A tiny rind of inflamed tissue is seen anterior to the spleen beneath the abdominal wall measuring 7mm in thickness, likely indurated tissue and possibly tiny fluid. A posterior left-sided drain, tip anterior to the splenic hilum is seen. A trace of shallow fluid along the medial margin of the spleen has resolved. A trace of inflamed tissue/fluid is seen below the tip of spleen beneath the lateral abdominal wall measuring 15mm in depth, marginally improved since the previous study. There are no new collections in the upper abdomen. There is no abnormal contrast leak from the small bowel. Small volume fluid in the upper pelvis has marginally increased since the previous study. The caecal wall appears oedematous probably typhlilis. There is no bowel obstruction. The small left pleural effusion has improved. There are minor dependent changes in the left lower zone and tiny linear atelectasis in the lower zones." 1. Dr Harrison next reviewed Katrina on 30 April 2014 with her daughter. She told Dr Harrison that she was feeling much better and she appeared in better spirits and also looked a better colour. She told Dr Harrison that her eating and bowels had improved and the pain she was having from her back had decreased. She had about 20ml daily output from her drain. She reported having no fever or sweats. Her blood tests showed that her CRP had lowered and her albumin had increased. Dr Harrison reiterated the importance of good nutrition. He told her that he had reviewed her CT with his colleagues which showed improvement in her lower chest and that her fistula was controlled. They agreed on a plan of repeating her blood tests, seeing the dietician, Lisa Morrow, and to return to see him in a month. 2. Dr Harrison wrote to Dr Bartusek: "I was very pleased to see Katrina today in the rooms. This is the best I have seen her for many months. Of great relief to me is the improvement in her CT scan and blood results all of which I have reviewed with the group yesterday. Everything from improvement in her lower chest and pleural reaction through to reduction in inflammation and the CT is very pleasing. She most certainly does have a low volume controlled fistula but she is no longer experiencing inflammatory symptoms and all of her blood results are returning towards normal and her CRP is 4. Her abdomen to my pleasure is also improving and generally from the nutritional point of view she is starting to look as though she may be able to be suitable for intervention required. Given her good health [she will] continue to see both the community dietician and our own dieticians. I think it is imperative that her nutrition continues to improve over the next month or so. She is certainly eating better than she has since the surgery in July of last year. Obviously, anything could change in the short term but I am planning to see her again in four weeks time and it will obvious to us at that time what our next course of action becomes." 1. Katrina did not attend the scheduled appointment with Ms Morrow (dietician) on 9 May 2014. Nurse Willis wrote in Katrina's records: "DNA appt with Lisa Morrow or return calls. 3rd time DNA. Has paid all post­op visits." 1. Katrina was admitted to WWBH on 27 May 2014 with intra-abdominal sepsis, liver failure and severe malnutrition. She remained in hospital until 30 July 2014, when her care was managed by "Hospital in the Home". The Discharge Summary for this admission stated: "Thank you for reviewing Katrina Polsen a 41 year old female discharged on 30/07/2014 from the Emergency Department at Wagga Wagga Base Hospital. Katrina Polsen presented to this facility with intra-abdominal sepsis as a result of a persistent leak from her gastric sleeve. Katrina underwent a number of percutaneous drainage procedures to control the leak which formed a well epithelialised fistula. Unfortunately Mrs Polsen has had had considerable post-operative nausea and vomiting, which has caused poor oral intake. This was managed with NG feeds until her oral intake could be improved. The NG was able to be removed with involvement of a dietician and supplementation. Mrs Polsen was managed through HITH prior to definitive surgical management in Sydney in early September. Summary of Medical Issues: Gastric sleeve leak Causing sepsis Managed with percutaneous drainage procedures & IVAbx Formation of a fistula and drainage tube insertion Definitive management in Sydney organised Fistula formation Causing pain at site: managed with PRN endone Drain was removed as it had come out of tissue Nil evidence of infection at discharge Inadequate oral intake - secondary to N & V Initially managed by NG tube insertion and feeds Able to tolerate supplements and some diet, so this was removed Constipation Secondary to Endone PRN Coloxyl with Senna Electrolyte abnormalities - low magnesium and potassium Secondary to inadequate intake and drain losses Managed with slow K and Magmin daily Plan on discharge: Definitive Management in St George Hospital Dietician review as an outpatient PRN Apperients PRN analgesia." 1. Dr Harrison said in answer to a question posed in cross-examination as to why gastric bypass was not performed during this admission, that it would have been "foolhardy". [78] The decision was (as recorded in the Discharge Summary noted in the above paragraph) for St George Hospital specialists to make. [79] 2. There is a significant note of a family conference on 3 June 2014, attended by Dr Harrison, Dr Ditchfield, the Nursing Unit Manager, Carly (a dietician) and Katrina's daughter: "Discussed with patient that jaundice likely due to infection, difficulty is poor nutrition meaning operation would have poor prognosis. Advised that with good nutrition, body will be able to tolerate surgery or fistula may heal spontaneously. Now recent deterioration → explained now ascitic, hypoalbuminaemia and liver dysfunction → informed all this likely due to malnourishment. Poor diet outside of the hospital and non-compliant with dietary advice → advised this is the cause of malnourishment and deteriorating state. Explained as she is now, prognosis is poor and death is a possible outcome. Explained has not been attending dietetics appointment – this was not in agreement with request. Now only option is to "force-feed" her to improve protein and LFTS. Explained fistula is not the problem, it is malnourishment secondary to poor diet. Spoken to St George Hospital about definitive management but nutrition needs to improve before this is possible. Will require ~ 2-3 weeks of good nutrition to improve baseline function → will remain in WWBH to facilitate this. Explained drowsy and confused due to deteriorating liver function. Plan 1. Not for consideration of transfer to SGH now as too unfit for surgery. 2. For strong dietician input. 3 Physio to encourage mobilisation." 1. At 6:50pm on the same day, 3 June 2014 another family conference is noted in the hospital records held attended by Katrina's husband and son and Dr Harrison. Dr Harrison's handwritten note is as follows: "Family conference with Richard and Wade. Progress over last several months reviewed. Latest decline also reviewed. ALB and LFT poor diet, poor compliance has controlled mature fistula. Plan: nutrition with NJT for …. (illegible) - Await St George Hospital xray meeting and 2nd opinion from Dr Jorgenson….". 1. Richard Polsen alleged in his statement prepared in October 2020 that on several occasions when visiting Katrina he asked Dr Harrison what went wrong in the original surgery to cause her to become so ill and that Dr Harrison replied "I am not sure". [80] Dr Harrison denies that he gave any such reply and asserted that at any family attended discussion, he kept everyone informed. 2. Dr Harrison next reviewed Katrina on 14 August 2014. This was a long consultation with Dr Williams, Nurse Willis, Ms Morrow and Carly (a WWBH dietician). Katrina was still being managed through the Hospital in the Home program. Katrina's daughter and son also attended. The central issue of the consultation was Katrina's recent WWBH admission for severe malnutrition. The importance of eating nutritious foods was again emphasised. Dr Harrison expressed his concern that Katrina would die from severe malnutrition if she did not engage in the issue of nutrition. The discussion centred management of a nasojejunal feeding and the residual low-volume fistula and the issue of her personal responsibility in managing long-term oral intake to ensure that she did not get recurrently malnourished. A management plan was reached to continue feeds in the short-term and that Dr Harrison would organise certain contrast studies to further delineate the management of her fistula with a view to transitioning her onto a long-term diet. 3. On 14 August 2014 Dr Harrison wrote to Dr Bartusek: "I was delighted to see Katrina and her family in my rooms today. We had a long multidisciplinary type meeting. This included my nurse, our in­house dietician and Nick Williams along with Carly who is the Wagga Wagga Base Hospital dietician who has been supervising Katrina's feed over the last couple of months. As you may realise, she was discharged from hospital only a matter of a few weeks ago having had a five week admission with what turned out to be severe malnutrition. She simply does not eat nutritious food when she is left without supervision. This is clearly an incredibly important problem as this is not something we can immediately manage. Her albumin and was 16 and her liver function tests were grossly abnormal, she had extraordinary levels of peripheral oedema and she was obtunded. At times I was concerned she would die. It was all the parameters of severe malnutrition. With nasojejunal feeding over the last nine weeks we have brought her up to a stable diet including oral intake and her albumin is heading toward a normal range. Not surprisingly her liver function tests have improved and she is mobile and back to normal function and as expected her fistula output has markedly decreased to the point where it has almost healed. I have long maintained this small fistula would heal once we were nutritionally manageable. Our discussion today centred on two issues. One is the management of a nasojejunal feeding along with the residual low-volume fistula. The second issue is her personal responsibility in managing long-term oral intake to ensure that she doesn't get recurrently malnourished. There is no mechanical impediment in her sleeve or gastrointestinal tract that would mitigate this. It was decided that we will continue her feeds in short-term. I shall consult widely and organise certain contrast studies to further delineate the management of her fistula. We will then work towards transitioning her onto a long-term diet." 1. Dr Williams reviewed Katrina on Dr Harrison's behalf on 26 August 2014, with Nurse Willis. Nurse Willis's note recorded the following: "Draining 25 ml/ day. C/O pain left side around drain. Had nasogastric taken out yesterday and able to eat a good meal last night of chicken potato etc. Nurses seeing daily. Nurses unconcerned with wound. Still taking a supplement daily and cold milo as advised by dietician who she is seeing each Monday at WWBH. Bowels twice daily, normal was constipated a few weeks ago. S/B NW - reassured of progress. Will write to John Jorgensen. Appl made with John 2/9/14. Weeks 57 / Current 66.9 / Loss 48 / BMI 28.2 / % EWL 78.69%." 1. Dr Williams provided Katrina with a referral for pathology and on 30 August 2014 Dr Williams also wrote a referral letter to Dr John Jorgensen at St George Hospital: "Many thanks for seeking Katrina for a second opinion. She is a patient of Richard Harrison's. I believe he has discussed her with you previously. Richard is currently on leave and I reviewed Katrina today in our clinic, along with her daughter and our practice nurse. To summarise her situation, Katrina had an elective sleeve gastrectomy in July 2013 and unfortunately she developed an early post-operative leak which required her to return to theatre one week later for a laparoscopic washout and insertion of peritoneal drain. Katrina has subsequently had a very stormy 12 months, with numerous hospital admissions for issues relating to her ongoing gastric fistula, including pancreatitis, splenic vein thrombosis, cholecystectomy, innumerable contrast studies and radiologically placed drains to the left upper quadrant. Most recently she was admitted for a period of four weeks with severe protein energy malnutrition requiring insertion of a fine bore nasojejunal feeding tube. Katrina's nutrition is slowly improving, the feeding tube has been removed yesterday and she is being reviewed very closely by a community dietician. The fistula continues to output a stable 25 ml per day. Dr Harrison's plan is to defer any revision surgery until Katrina's and nutritional status is optimised. There was also a discussion as to whether gluing her fistula tract would be an option. Katrina is understandably very teary and frustrated at this protracted illness. She specifically asked me today if I could arrange for her to have a second opinion from yourself." 1. Dr Jorgenson wrote to Dr Williams on 5 September 2014: "Thank you very much for asking me to review Ms Kalrina Polsen. Her protracted history has been noted. Essentially, she has a chronic controlled fistula from a sleeve gastrectomy done approximately twelve months ago. It presented ten days post surgery and it was operated on and drainage instituted, subsequent resolution but unfortunately an episode or gallstone, pancreatitis with peri pancreatic necrosis resulted in re-establishment of the leak presumably due to lipolysis of the omentum which had previously walled the leak off. Subsequent to that, she's had intermittent sepsis, hospitalisation and problems with nutrition. More recently has been admitted to hospital with very poor nutrition, had a nasojejunal tube placed and was fed for a month. She's been recently been discharged back home and is currently taking oral food and according to her and her daughter today is coping okay with this, eating three to four times a day with no vomiting and they claim that she's eating a healthy, protein based diet. The district nurse continues to visit and keeps a close eye on her as previously there's been issues of poor nutrition which of course will not aid in the healing of the fistula. She has a pigtail drain in and is draining about 25mls of pus per day. Her most recent radiology was reviewed with a fairly straight fistula tract coming out of the pigtail and not much in the way of a cavity seen on the CT and no obvious stricture or torsion of the tube itself. However, all of this radiology is somewhat dated by a number of weeks and will need to be repeated. I reviewed these scans with our radiologist's and Or Phillip Craig who is an interventional gastroenterologist and the conclusions were as follows: 1/ Adequate nutrition is an absolute necessity to achieve any fistula healing and therefore Ms Polsen needs to be monitored very carefully and if she does not consume healthy, nutritious, protein based foods, multivitamins, etc then she will need to go back onto nasojejunal feeds sooner than later. 2/ The radiology needs to be repealed to ensure that there are no collections outside the fistula tract. Either a 30 CT scan or a further barium study to make sure there is no incisura, relative stenosis that's promoting the nan closure of the leak. 3/ A repeat gastroscopy to look at the size or the defect. Based on the above, we should be able to make a decision as to whether or not this can be treated with cleaning of the sinus tract and embolisation with a biomaterial such a Bio A or Surgisis or alternatively the placement of a long stent from the oesophagus right down to the pylorus. Overall there is probably about a 50% chance of getting healing or this chronic fistula without surgery. Surgery which would really necessitate a roux loop onto the chronic fistula tract would of course be fairly definitive but would present a fairly challenging laparotomy given the previous history of pancreatitis and portal vein thrombosis. We'll call the patient explain to her what's proposed but both the patient and her family will need to understand that there are no guarantees and of course the timeline here is prolonged rather than short. So we'll discuss these issues with the patient, send her a letter and if she wants, we will organise her admission to St George Public and see if we can help her endoscopically." [81] 1. Prior to transfer to St George Hospital, and whilst still a patient at WWBH, Katrina asserts that she overheard Dr Williams saying to Dr Harrison: "I think we need to perform gastric bypass surgery now" and Dr Harrison replying: "No, I will continue with the current treatment and see if she improves". [82] Dr Williams said that if he did say those words, they did not represent his concluded thinking on whether Katrina should immediately undergo gastric bypass surgery. Dr Williams explained that he and Dr Harrison frequently conferred about management and that Katrina was a complex patient and management evolved and changed as her condition unfolded. He concluded in his statement: "I do not believe that a bypass should have been performed in the period that Dr Harrison was caring for Ms Polsen. Throughout the time I was involved with Ms Polsen's care, I recall that achieving adequate levels of nutrition was a persistent problem. She was often malnourished and unwell. I expected that if her fistula did not heal, Ms Polsen would require a gastric bypass. As a result of my discussions with Dr Harrison at the time he cared for Ms Polsen, it was (and remains) my firm impression that he held a similar opinion. A bypass in these circumstances is best performed once a patient's health, and in particular their nutrition, has stabilised." [83] 1. Dr Williams expanded on this in cross-examination to state that he contemplated Roux-en-Y on several occasions but that Katrina was never quite nutritionally well enough to safely go ahead. [84] 2. On 17 September 2014 Katrina was admitted to St George Hospital under the care of Dr Jorgenson and Professor Philip Craig. On 18 September 2014 Katrina was examined by Dr Craig via endoscopy. On 25 September 2014 Katrina underwent an upper GI endoscopy and stent placement by Professor Craig. She was discharged on 17 October 2014. 3. Between 23 and 25 October 2014, Katrina was again admitted to WWBH for discharge from fistula site post stenting procedure. The Discharge Summary stated: "Thank you for reviewing Katrina Polsen a 41 year old female discharged on 25/l 0/2014 from Surgical Ward 2 at Wagga Wagga Base Hospital. Katrina Polsen presented to this facility with discharge from fistula site, post stenting procedure for gastric sleeve leak. This is on a B/G of Malnutrition, pancreatitis, liver failure & cholecystectomy. The gastrocutaneous fistula was draining purulent discharge, with increased output causing the patient to present. A barium swallow was performed showing no evidence of leak, there was a relative obstruction at the distal end of the stent, possibly due to post-op oedema or debris. Based on this, a gastroscopy was performed which found the stent was patent and in a good position, there was fluid residue in stent and the distal aspect of stent was abutting the pylorus but patent lumen into D l. As the patient was tolerating free fluids post-operatively and remained haemodynamically stable, she was discharged home. Discharge Plan l. F/U in Dr Harrison's rooms as organised 2. PRN analgesia (try to avoid paracetamol ii possible)." 1. On 25 October 2014 Dr Bernard Cheung performed a gastroscopy on Katrina at WWBH and reported as follows: "Many thanks for asking me to gastroscope Mrs Polsen today in light of recent commencement of mild discharge from her proximal gastric fistula and barium swallow suggestive of a possible partial obstruction in the distal stomach. The gastroscope was inserted to the second part of the duodenum. The covered stent looked unremarkable. At the distal end of the stand, the pylorus did appear to produce slightly into the distal flare of the stent, however, there was no significant difficulty progressing the scope beyond this point. Dl and D2 were unremarkable. Photos were taken. In short, it was a fairly unremarkable procedure. I will keep her on free fluid until you catch up with her in a day or two." 1. Katrina was admitted to WWBH on 6 November 2014 until 10 November 2014 with "complications arising from a gastric sleeve leak". The Discharge Summary stated: "Thank you for reviewing Katrina Polsen a 41 year old female to be discharged on 10/11/2014 from Surgical Ward 2 at Wagga Wagga Base Hospital. Katrina Polsen presented to this facility with complications arising from a gastric sleeve leak. CT abdomen / pelvis showed residual / recurrent 3cm fluid collection in the same spot as previous CT images. I understand that there is some complex fluid being drained from the cutaneous fistula site at present. Mrs Polsen was managed with percutaneous draining of the fluid collection, IV antibiotics, DVT prophylaxis and dietician input. IV antibiotics included amoxicillin and Metronidazole, this was changed to oral Ciprofloxacin. Mrs Polsen however experienced fevers whilst an inpatient, likely secondary to atelectasis. She recovered well and remained haemodynamically stable prior to discharge. Discharge plan: 1. Continue Ciprofloxacin as per Dr Harrison 2. Please chase urine culture 3. Follow up in St George Hospital as organised." 1. Katrina was admitted to WWBH on 28 November 2014 until 1 December 2014 with abdominal pain and nausea. The Discharge Summary stated: "Thank you for reviewing Katrina Polsen a 41 year old female to be discharged on 01/12/2014 from Surgical Ward 2 at Wagga Wagga Base Hospital. Katrina Polsen presented to this facility with abdominal pain and nausea. Katrina was admitted under Dr Harrison with a past history of gastric sleeve surgery, complicated by a leak+ pancreatitis + gastrocutaneous fistula+ severe protein wasting and malnourishment. She has the additional hx of an oesophageal stent as part of the treatment regime. She presented this time with abdominal pain and was treated conservatively with IV fluids, slowly increasing diet, and analgesia. She was continued on a high energy, high protein diet. She remained in hospital over the weekend where she improved, by Monday 1/12 she was tolerating small amount of oral intake, pain was controlled, and her bowels were working well. Discharge Plan Diet as tolerated in small amounts For follow-up on the 4/12/14 at St George Hospital for removal of oesophageal stent. Further follow-up as per St George instructions." 1. Katrina was again admitted to WWBH on 2 December 2014 with haematemasis (vomiting blood) and abdominal pain. She was transferred to St George Hospital on 3 December for treatment. The Discharge Summary from WWBH stated: "Thank you for reviewing Katrina Polsen a 41 year old female to be discharged on 03/12/2014 from Surgical Ward 2 at Wagga Wagga Base Hospital. Katrina Polsen presented to this facility with haematemasis and abdominal pain on a background of multiple hospital admissions & gastric sleeve leak. Issues 1. Likely gastric stent erosion The patient presented with haematemasis and epigastric/LUQabdominal pain, which is likely secondary to gastric stent erosion CT Abdomen showed a crescent of contrast around the upper esophageal stent is concerning for a slow leak of contrast around the stent -between the stent and esophageal wall or even in the submucosa. I discussed this with Dr. Harrison. The patient is to be transferred to St George Hospital tomorrow for re-evaluation of the stent. The pleural and peritoneal effusion, the widespread small bowel mucosa I enhancement and the large bowel wall thickening is likely to represent a serositis. No leakage of contrast into these spaces from the GIT is shown. The inflammation may be due to sepsis, with hypoalbuminemia contributing. She was managed with analgesia, antibiotics (Ciprofloxacin BD), prior to transfer to St George Hospital Sydney 2. Melaena Episode of Melaena on the morning of the 3/12/14. Moderate watery black stool passed and nil bright red bleeding. She remained haemodynamically stable throughout. She was started on an IV PPI infusion, bowel chart and underwent repeat Hb. Haemoglobin remained stable at 101 post-melena episode. 3. Analgesia Admitted on OxyContin SR 40mg Mane & OxyContin 80mg nocte PRN Morphine 2.5mg also given Past Medical History Gastric sleeve operation performed (23.6.13), developed gastric sleeve leak post-op as well as liver failure, pancreatitis and renal failure. She also developed a recurrent gastrocutaneous fistula post-op, drain insitu. Gastric stent inserted during most recent admission to St George hospital, felt unwell since. Scheduled to have stent removed on 4/12/14. Electrolyte abnormalities since procedure including low magnesium ancf potassium. Secondary to inadequate intake and drain losses. Managed with slow K and Magmin daily. Not currently taking these medications Cholecystectomy Medications on transfer OxyContin 40mg Mane OxyContin 80mg nocte Ciprofloxacin 500mg BD IV Pantoprazole Infusion 80mg in 100ml NS (10ml /hr) DVT prophylaxis -admitting team to review please PRN Morphine 2.5- 5mg Q4H PRN Ondansetron 4-8mg TDS Allergies Paracetamol (developed severe liver toxicity) Transfer Plan 1. Dr Craig (Consultant Gastroenterologist) has kindly accepted care at St George Hospital Sydney 2. Patient has been found to be positive for VRE - Contact precautions & Isolation." 1. On 3 December 2014 Katrina was re-admitted to St George Hospital under the care of Professor Craig, and on 4 December 2014 he performed an upper GI endoscopy and stent removal for suspected gastric stent erosion. [85] It is agreed [86] that a contrast study performed showed no signs of ongoing leak after treatment. 2. On 15 December 2014 Katrina was transferred back to WWBH to 17 December 2014. The Discharge Summary stated: "Changes to medications Increased oral feeds, no other changes Discharge Plan 1. Continue NJ feeds at home until her supply is finished (she has 2 weeks supply at home) 2. GP to follow-up with her at this time to recheck bloods and remove NJ tube 3. Referrals made to both the bariatric dietician working under Dr Harrison (Lisa Morrow) as well as the community dietician (she has previously been non-compliant). She will need weekly dietician review! 4. Registration for supplements completed, she will need to order supply when needed. 5. Recommend weekly weights at home and daily food chart 6. Sustagen + beneprotein 7. If weight drops below 53kg then advised to represent for admission 8. Follow-up with Dr Harrison in January - appointment made." 1. Dr Harrison reviewed Katrina on 20 January 2015. She appeared well. She told Dr Harrison that her weight had increased and that her bowel and urine were normal. She had decreased output from her drain and was seeing the dietitian every Wednesday regarding nasogastric feeding. She said she was "eating constantly" and was managing fruit, custard and chicken. They discussed nutrition issues and stressed the importance of eating well. They had an early discussion regarding a long-term controlled fistula, which would require stomal therapy. They also discussed portal vein thrombosis and the impact it had on her spleen. 2. Dr Harrison recorded this note of the 20 January 2015 consultation: "W/Tahlia As good as we've seen Weight ↑ bowel ✓ urine ✓ ↓ O/P +thinner consistency Seeing dietician re: NGF/ (outpatient) Plan: bloods today D/w community dietician tomorrow D/w Nick → nutrition issues Early discussion re: L/T (long-term) bag and controlled fistula Early discussion re: re OT - 3° (tertiary) referral. Early discussion re - PVT issue / ↑ spleen." 1. Dr Harrison explained that although gastric bypass was discussed, Katrina was still not a suitable candidate for it as she was still on nasojejunal feeds. [87] 2. Nurse Willis wrote the following in Katrina's records: "57.6 kg Seeing dietician every Wednesday NG insitu - dietician requested to remain until 60 kg, was 54 kg 'Eating constantly'. Managing fruit, custard, chicken, Draining 50ml / day Requesting script OxyContin 40 mg bf + Endone 5 mg prn." 1. On 22 January 2015 Dr Harrison wrote to Katrina's General Practitioner Dr Gamal Mark: "It is hard to know where to start in our discussion with regards to Katrina! I saw her in the rooms today (20th of January 2015). She is as well as I have seen her since the time of her original surgery. However, there are still some significant issues in play with her. As you are aware, she has a chronic gastric fistula which is of low volume. She has also had problems with functional gastric outlet obstruction from the tight distal stomach, probably in combination related to the surgery but certainly her post operative pancreatitis and subsequent portal vein thrombosis and retroperitoneal sepsis. Much of this has now been well handled and managed. Presently she is still being fed with nasojejunal feeds and this is working well for her. She weighs 58 kg today and nutritionally she looks well. I have sent her off today for further analysis of nutritional parameters. Her fistula is of low volume, is largely thin fluid, but occasionally does have a tinge of whatever colour drink she has recently had. She promises me she has improved the quality and quantity of her oral intake and she is being carefully monitored by both community and hospital-based dieticians. I have always said that once we can get reasonable oral nutrition and Katrina is likely to continue to improve. We will have a discussion throughout the team in the course of the next week to work out whether or not we need to continue to nasogaslrically feed her. I have introduced the idea of a long-term controlled fistula to her. This would require stomal therapy and I'm still of the view that if we get good quality nutrition her fistula will ultimately heal. I have had the liberty of involving St George Hospital's medical and surgical teams and they have been extraordinarily helpful in helping to improve Katrina to the point where she is today. I will be in touch with further issues and I hope Katrina remains compliant." 1. Nurse Willis recorded the following in Katrina's records on 6 February 2015: "60.5 kg Jasmine still coming weekly NG out last Friday (daughter) No more soreness of throat Eating x alot even @ 2am Draining 50 ml / day Bowels daily C/o terrible soreness when lying on side to sleep Given blood test Booked 2/ 52." 1. On 12 February 2015, Commins Hendriks Solicitors wrote to Dr Harrison and advised that they were acting for Katrina and requested a copy of her records. I understand that the requested documents were forwarded. 2. Nurse Willis noted in Katrina's records on 24 February 2015: "Ph - spoke with Jasmin and informed Albumin down to 24 and haemoglobin 105L. Jasmin now seeing 1 / fortnight." 1. Nurse Aicken wrote in Katrina's records on 27 February 2015: "Path results faxed to Jasmin@ WWBH. and 61.9 kg Always pain across midline mostly around drain site under ribs. Would like to start aqua aerobics. Drain an issue - will try stoma bag. Eating a lot better. Pain stronger lately and more frequent. D/W RH. Plan for short admission next week for scans and change of drain. Albumin 24 → Katrina will start drinking protein drinks. Will see Jasmin next week. Katrina has attended and obviously still confident and happy with treatment at this practice. Happy with planned admission for next week." 1. Dr Harrison wrote in Katrina's records on 12 March 2015: "RH - drain fell out yesterday. Attended A + E new drain put in this morning. R/V 19/3/15." 1. Nurse Aicken wrote in Katrina's records on 13 March 2015: "PH: RH enquiring. Going well. Feeling much better now. Not much draining. R/V in rooms next Thurs." 1. Nurse Aicken wrote in Katrina's records on 19 March 2015: "64[kg] Has been drinking milo and protein drinks. Lots of chicken. No difficulties eating. Minimal drainage. Stitches a bit sore. Happier with drain and softer. Pain on moving - settles once going. Back at Oasis tonight. S/B RH. Doesn't not want surgery happy with present situation. Happy for Dr Harrison to continue her care. Plan to continue see in four weeks. Given blood test form. Still seeing Jasmin though not sure when she is coming next as didn't come this week." 1. Dr Harrison explained in cross-examination that the note made on 19 March 2015 should have stated "Doesn't want surgery". The discussion took place in the context of having received a solicitor's letter "very much in the middle of an episode of care" and where there were plans in place for ongoing management that did not include surgery at that time. [88] 2. Nurse Willis wrote in Katrina's records on 14 April 2015: "Presented to WWBH - S/B NW had CT drain fallen out. D/C today. Well." 1. Nurse Willis wrote in Katrina's records on 16 April 2015: "62 kg Ph - didn't see drain fall out. Was checked the day before at WWBH and drain appeared line. Will present to WWBH if has any concerns with temp or wound. No d/c from wound. Still wearing bag and no d/c. Feels wound closed over. Eating and drinking well. Weight stable. Jasmin dietician still doing home visits, seeing next week. Now able to eat steak comfortably. Had blood test 14/ 4. Discussed counselling - strongly refused. "Will see someone if needs to" 4:15pm - Ph - informed blood tests - RH to check." 1. Nurse Willis wrote in Katrina's records on 21 April 2015: "Ph - rang to check M/V - most days taken M/V (multivitamins) Reporting some pain and gurgling on side at times. No temperatures. Appt made 8.8.15 with Katrina and RH." 1. Nurse Willis wrote in Katrina's records on 7 May 2015: "60 - 62kg Ph - to check progress. Won't attend apt here tomorrow. Sick with flu @ present, GP prescribed antibiotics and organised u/s 1.5.15 @ Imaging Associated "no changes since previous scan". Informed RH, very happy. Jasmin still doing home visits. Katrina reported eating well and feeling well other than the flu. Will ring us if she has any concerns." 1. Nurse Willis wrote in Katrina's records on 3 June 2015: "RH saw Katrina @ WWBH. Katrina reported no leak and feeling very well. No concerns." 1. On 7 August there was a Hospital in the Home admission, and on 19 August an attendance at WWBH ED complaining of abdominal pain. 2. Nurse Aicken wrote in Katrina's records on 26 August 2015: "Msg to call Katrina from Kelly. Ph - called at lunchtime. Daughter answered. She has gone to WWBH in lots of pain. Endone not helping. RH informed." 1. Katrina was admitted to WWBH with wound infection and abdominal drainage under CT guidance and was discharged home on 28 August 2011. 2. Nurse Willis wrote in Katrina's records on 8 September 2015: "62.7 kg C/O drain "smelly" and sore all the time. Reported feeling sick today, some days good. Inpatient last week Eating as much as she can. No temperatures. Reports lost some weight. Emptying bag every night - only a few mis To see RH @ RDS 8/7." 1. Dr Harrison reviewed Katrina on 20 October 2015 and following the consultation he wrote to Dr Mark as follows: "I was pleased to see Katrina today. She is remarkably good spirited and very stable from a weight point of view. She gets approximately 4 weeks between episodes of pain and discomfort where her chronic sinus cavity on the left upper quadrant exits. This usually probes and allows some fluid to come out She Is never systemically unwell and blood tests as recently as yesterday are close to normal. We had a very good discussion today in the presence of my bariatric nurse about the longer term issues. I do not see value in Intervention at this time. Her previous portal vein thrombosis has led to asymptomatic but very significant portal splenomegaly which would leave revisional surgery very hazardous Indeed. I think If she can remain in her present situation it is the best outcome that we can expect at this early time. I will continue to review her constantly." 1. Nurse Willis wrote in Katrina's records on 20 October 2015: "66.8 kg Attended A&E yesterday. C/o lot of pain in L side, feeling nauseous and not eating. Wound drained and cleaned yesterday. S/B RH, wound cleaned and redressed." 1. Katrina was admitted to WWBH under the care of Dr Harrison from 19 to 20 November 2015 to investigate increased upper abdominal pain. Whilst she was at WWBH she was reviewed by the Acute Pain Service and it was suggested that her general practitioner arrange follow up with a chronic pain specialist after discharge. This was the last time that Dr Harrison was actively engaged in Katrina's care, other than that he reviewed her when she presented to the ED at WWBH in early 2016. Admissions to hospital, treatment and relevant medical and medio-legal assessments after January 2016 1. WWBH discharge summaries dated 1 January 2016 and 20 February 2016 were addressed to Dr Mark GP. 2. Katrina was reviewed by Dr Miller, specialist surgeon, on 8 March 2016. He had been asked by Katrina's solicitors for a medico-legal opinion. At that time Dr Miller noted that Katrina was experiencing constant left upper quadrant pain into her back which increased when eating, she still had discharge from her left lower costal margin requiring dressing, her bowels were not normal, she had intermittent fevers and was weak, lethargic and depressed. 3. A WWBH consult note dated 15 April 2016 records: "still has not arranged formal outpatient surgeon (? awaiting in Canberra) pending GP referral". 4. GP records of Dr Gamal Mark [89] indicate that Katrina consulted his practice on 18 May 2016 for "wound review". A note was made that "patient not currently under a specialist's care as legal proceedings in process and previous surgeon will not see her". (I note that the latter comment was accepted on the limited basis that this was apparently Katrina's impression of the situation, not that it was true). The wound was noted to be a "small stoma-like opening. Surrounding skin red and angry". This was followed by a notation that "Dr Mark happy to take over care of wound". 5. There were other consultations with Dr Mark in May 2016 for abdominal pain. A CT scan of the abdomen and pelvis was requested by Dr Mark on 12 May 2016 and reported to him on 17 May 2016. 6. A WWBH consult note dated 24 June 2016 stated: "may now follow up in St George with Professor Craig". [90] 7. In July 2016 there is a referral letter by Dr Mark to a Dr Moss in Canberra for "opinion and management of gastro-cutaneous fistula post gastric sleeve operation in 2013". There was no evidence that Katrina consulted Dr Moss. 8. Dr Selwyn Smith, Psychiatrist, reviewed Katrina at the request of her solicitors on 25 August 2016 for the purpose of a medico-legal report. He diagnosed chronic major depressive disorder and noted that Katrina had "not engaged with psychological or psychiatric treatment because of the stigma associated". [91] 9. There is a referral letter by Dr Mark to a Dr Martin, a surgeon at Strathfield for a "second opinion" dated 31 August 2016. There was no evidence that Katrina consulted Dr Martin. 10. There is a referral letter by Dr Mark to Dr Le Page, surgeon (in the same terms as the letters to Dr Moss and Dr Martin) dated 28 October 2016. Whether and when Katrina consulted Dr Le Page in response to this referral letter is not clear in the evidence, but a clinical note by Dr Mark suggests the referral letter was in response to a phone call from Dr Mark on 28 October 2016. 11. In April 2017 Katrina attended a medico-legal assessment arranged by her solicitors with a psychologist, Mark Ravagnani. [92] There were two matters of note in that report. First, Katrina told him that she had been unable to find a specialist to treat her as a public patient in Wagga and that she was due to attend a specialist in Sydney in "February 2017" and second, he noted that she was "resistant to the idea of counselling", despite his advice to her that it would be beneficial to her. 12. On 4 July 2017 Katrina was admitted to Concord Hospital for gastroscopy and fluoroscopy with sinogram. At this time a note in the hospital records indicates that she was advised that she will require gastrectomy. 13. On 3 August 2017 a Concord Hospital note recorded: [93] "Patient was discussed at UGI meeting with consultants Dr Falk, Dr Joseph and Dr Becceril yesterday. Also previously discussed at meeting 1 month ago. Dr Dunn reviewed CT and fluoroscopy yesterday. I also spoke with Dr Richard Harrison yesterday re patients case and recommendations. Opinions discussed with patient yesterday and today. Patient is aware is high risk case, with risk of death, abandomenment, major morbidity/permanent disablement. Plan is preferably for resection of fistula and small bowel join to oesophagus above. Patient aware this may not be possible and alternative may be undertaken of bypass of bowel to stomach below leaving leak. Almost certain need for splenectomy, and likely stapling across pancreas. Possible injury and leak from pancreas. Risks include major bleeding, blood transfusion, death, leak from bowel/pancreas/oesophagus or injury to other structures and major consequences of this. Also risk of blood clots, infection, stroke, heart attack, organ failure, inability to eat and need for tube feeding. A feeding jejunostomy may be placed at the time of surgery. Further treatments including surgery may be required. Patient aware she may be left more disabled by procedure. Patient aware this option was with patient in Wagga with surgeon years ago and desires to be treated now by me for this." (Emphasis added). 1. On 13 September 2017 Katrina was given a total gastrectomy with Roux-en-Y anastomosis at St George Hospital by Dr Le Page. The exclusion of Dr Selwyn Smith's "liability" evidence 1. Objection was taken by the defendant to the plaintiff relying upon the "liability" aspects of Dr Selwyn Smith's reports and his participation in questions 1 to 4 of the conclave report. I made rulings excluding that material with reasons to be provided. 2. The defendant argued for their exclusion on three bases. The first was that the notice under s 67 of the Evidence Act 1995 (NSW) was not sufficiently specific as to the substance of the evidence sought to be adduced. Annexing copies of reports of Dr Selwyn Smith was not sufficient in the absence of identification of the relevant parts of those reports that were to be relied upon. 3. The second basis was that the Court could not be satisfied of the admissibility of the material under s 79 of the Evidence Act as an exception to the opinion rule, because the Court cannot be in a position to assess whether the opinions contained in the material sought to be tendered is wholly or substantially based on specialised knowledge based on Dr Smith's training study or experience. The opinions are manifestly deficient because the facts or assumptions upon which Dr Smith based his opinions were for the most part unclear, the reasoning process which lay behind the opinions was not exposed or adequately exposed, the documents and content of the documents relied upon was unclear, and there was no evidence that Dr Smith had specialist expertise to provide an opinion about the reasonableness of the pre-operation work-up provided to the plaintiff based on what was the reasonable standard in July 2013 in Australia. 4. The third basis was that the Court should exclude the material under s 135 of the Evidence Act because its probative value was substantially outweighed by the danger that the evidence might be unfairly prejudicial to the defendant or would be misleading or confusing or cause or result in undue waste of time. Unfair prejudice can include an inability to cross-examine, but the prejudice here must be viewed in light of the inability to test Dr Smith's opinions by cross-examination as to his assumptions, to examine his opinion based on alternative assumptions, to test inconsistencies in his evidence, to seek clarification of his terminology, to test his rationale, to test his expertise to comment, to question him about consultation(s) he had with the plaintiff the details of which were not revealed in the consequent report(s), and to test the bases for his descriptions in the reports of certain conduct by the defendant and members of his team. 5. In response, the plaintiff argued that notice was adequate given the context of well-explored issues of medical negligence and the Court should not accede to technical objections. The opinions in the conclave report were provided in the context of the defendant's representatives consenting to Dr Smith's presence and participation and having settled the questions the conclave was to answer. The robustness of the conclave situation included that Dr Smith's opinions proffered would be tested by "his peers" as to the necessity of psychological intervention in a case of this nature. The defendant is not prejudiced by his unavailability for cross-examination, and there is no doubt his opinions were confined to those based on his specialised skill, and so the exception to the hearsay rule applies and s 135 has no application. 6. Whilst I rejected the submission that the notice under s 67 was inadequate, there is substantial force in the submission that the "liability" opinions expressed by Dr Smith are fatally problematic. They do not reveal his assumptions, they do not disclose the reasoning process, the documents upon which the opinion was based were not identified, and it was evident that Dr Smith had undocumented discussions with the plaintiff herself and this added another level to the opacity of his assumptions. The combined effect of this is that the Court could not carry out the necessary analysis as to whether the opinion rule applied to the opinions expressed. 7. This created an unfairness that could have potentially been remedied by cross-examination of Dr Smith. The death of Dr Smith meant that no cross-examination could occur. In those circumstances, s 135 of the Evidence Act provides a second basis for rejecting those liability opinions. It would cause unfair prejudice to the defendant to have Dr Smith's liability opinions in evidence where none of the foundations for them could be evaluated and tested by counsel seized of the relevant evidentiary and legal tests. It is no answer to that prejudice to assert that the opinions were "tested" simply because they were expressed in a conclave setting. That setting did not interrogate or evaluate to the necessary level, the assumptions and bases for Dr Smith's views. 8. The material in issue was excluded on that basis. The plaintiff's expert evidence on liability 1. Dr Miller is a specialist surgeon who qualified in general surgery in 1985. He practices in upper gastrointestinal tract ("GIT") surgery including performance of gastrectomy. He stated in his reports that he performed some gastric banding procedures in the early 2000s and was experienced in looking after GIT complications such as haematoma, infection and fistula. He personally reviewed Katrina in March 2016. He was provided with a significant amount of clinical records and hospital notes to review. 2. In his report dated 8 March 2016, [94] Dr Miller took the view that the surgery resulted in insufficient stomach left behind, creating a distal stricture and a rise in intra-gastric pressure thus causing a break in the staple line. He stated that the development of the haematoma was associated with surgical technique, and that there was a small window of opportunity to correct the problem and a stent via endoscopy should have been performed during the admission between 1 August and 23 September 2013. Any later was too late to resolve the problems. 3. Dr Miller was of the view that the admission on 12 November 2013 was an opportunity to perform gastric bypass whilst Katrina was being treated for cholecystitis and jaundice. That opportunity was missed. 4. In his second report dated 23 October 2017, [95] having reviewed Katrina on that day, Dr Miller noted that Katrina had undergone a total gastrectomy and Roux-en-Y anastomosis in an 8 hour procedure under Dr Le Page, and that she had had other admissions to WWBH with her fistula in the period between when he saw her in March 2016 and October 2017. She told him that she was eating seven small meals a day and was receiving iron therapy and supplements. Dr Miller noted that Katrina was unable to work and was fatigued, with poor exercise tolerance. She told him that she was doing no housework or gardening, and could not carry parcels or push a trolley. He concluded that Katrina had had a chronic gastric fistula due to a distal gastric stricture and a total gastrectomy had been required to "correct the problem". He also noted that she had improved remarkably since his first assessment, largely due to the total gastrectomy. 5. On 7 August 2018 Dr Miller reviewed Katrina again, [96] noting that her biggest problem was pain in the right upper quadrant after food or drink, as well as fatigue, poor exercise tolerance, sleeping problems and the need to take a large amount of medication. He was of the view that Katrina cannot work and will have ongoing pain. 6. In his December 2019 report [97] evaluating the reports of Drs Sethi, Taylor, Garett Smith, Byrne and Professor Brown, Dr Miller maintained his opinion that there were multiple opportunities missed for Katrina to have definitive surgery. His opinion remained unchanged, despite the views to the contrary expressed by the experts retained for the defendant. 7. In May 2020 Dr Miller for the first time made mention of Katrina's alcohol consumption. He was asked by Katrina's solicitors to assume that Katrina drank alcohol five to six nights per week during the months prior to surgery, and that the intake was a bottle of wine per night. Dr Miller offered the view in his May 2020 report [98] that there should have been drug and alcohol counselling to cease alcohol, and that cessation of alcohol six to eight weeks prior to surgery reduces the risk of peri-operative complications. He emphasised that the surgery was elective, and could have waited two months to ensure that Katrina was fully recovered and staying abstinent. 8. Professor Morris is a Professor of surgery and surgical oncology. He did not assess Katrina but was asked to conduct a review of the medical and hospital records. In his report dated 30 July 2016 [99] he offered the opinion that it is recognised that a larger "bougie" (a device that measures intra-operatively the size and angle of the stomach left) has a lesser leak rate, but he did not identify any technical defect in performance of the surgery. He said that Katrina should not have been discharged on 25 July 2013 given the marked elevation in her ESR and CRP levels. She should have been provided with an abdominal CT before discharge which Professor Morris says would have found the gastric leak, and that this would have "favourably altered her outcome", although he does not specify what that favourable outcome would have comprised or when or how it would have occurred. 9. Professor Morris noted that the CT taken on 1 August 2013 showed fluid and gas so it was clear that there was a gastric perforation, but it was not until 5 August 2013 that this diagnosis was confirmed. Professor Morris said that whilst it was appropriate to discuss the leak with Dr Talbot, there is no record of Dr Talbot's advice or the plan made. The leak was persistent through September and Katrina developed liver failure because of untreated sepsis. Professor Morris concluded that a "covering stent" could and should have been considered much earlier, and on the balance of probabilities would have "… reduced the length of stay and ultimate morbidity". 10. In his 21 June 2017 report [100] Professor Morris noted that Roux-en-Y was still available but if a leak and sepsis was present, it is at high risk of breakdown so surgeons could only operate when settled. 11. In his 27 November 2019 report [101] Professor Morris provided a further evaluation of the clinical records. Noting Dr Miller's and Mr Jenkinson's 2018 reports and Dr Mar Fan's 2019 reports had been provided to him, Professor Morris said that a stent should have been provided in August 2013, rather than one year later. 12. It was not until his 22 May 2020 report [102] that Professor Morris said anything about Katrina's alcohol consumption. The consideration appears to have been prompted by the April 2020 report of Mr Jenkinson where this issue is first raised. He has assumed, and he was asked to assume by Katrina's solicitors, that she was "drinking a bottle of wine per day prior to the obesity procedure". A 1999 Sorensen article is cited as evidence supporting that alcohol use causes healing problems. 13. Dr Mar Fan is a general and colorectal surgeon. He stated that he has not performed bariatric surgery. He reviewed Katrina on 8 August 2018. His first report is dated 14 January 2019. [103] He was provided with extensive medical and hospital records, letters of instruction and the reports of both Dr Miller and Mr Jenkinson. Dr Mar Fan concluded that the gastric leak was caused by the surgery. He stated that according to the literature, the time for a gastric leak to heal was between 2 and 270 days, with 40 days being the median. He stated that the optimal time frame to intervene depends on the patient's clinical status. If the patient is unwell and unstable, that will warrant immediate reoperation, but if stable, it is appropriate to control the leak and repair it as soon as the patient becomes stable, ensuring adequate drainage and that it is important to get the patient nutritionally well enough to undergo reoperation. 14. Dr Mar Fan said that a stent should have been done within six weeks of 1 August 2019 and that the gastric bypass should have been considered six weeks after conservative management failed, or on 12 November 2013 when conducting the cholecystectomy. There should have been a transfer to a bariatric surgery unit when the conservative treatment failed. 15. Dr Mar Fan concluded that if the leak had been attended to earlier, there would not have been chronic infection, and the fistula would have been eliminated. 16. In his supplementary report dated 10 October 2019, [104] Dr Mar Fan addressed a series of questions posed in the instructing letter of Katrina's solicitors in light of the views of the defendant's experts Dr Taylor, a bariatric surgeon, Dr Sethi, a gastroenterologist, Dr Garett Smith, an upper GIT surgeon, Dr Byrnes, a gastroenterologist and Professor Brown, a bariatric surgeon. Dr Mar Fan dismissed those experts' views about the use of stent being "controversial at the time", relying upon his understanding from the literature that stents had been used since 2009 and the articles that he had read that spoke of the benefit of their use. He said Katrina should have been sent to a speciality GI Unit at the earliest opportunity and that such a unit would have stented her and resolved her fluid collection. 17. The report dated 9 June 2020 [105] was the first time Dr Mar Fan mentioned alcohol. He was retained via an instructing letter that enclosed Mr Jenkinson's April 2020 reports that raised the question of Katrina's alcohol use. Dr Mar Fan concluded that alcohol made the procedure high risk, and that given it was elective, Katrina should have had counselling regarding alcohol consumption and abstinence, and that given the increased risk associated with long term chronic excessive alcohol consumption, the operation was contraindicated and should have been postponed. 18. Mr Jenkinson is a consultant upper GI surgeon who practices in London United Kingdom and was a practicing bariatric surgeon in 2013 although not in Australia. He is currently a consultant Laparoscopic GI and Bariatric Surgeon. 19. His initial report dated 10 June 2018 [106] addressed the issue of warning of risks and the need to explain those risks and alternative procedures to the patient. He also raised that methotrexate use presents an increased risk for gastric sleeve procedures, although he did not explain in this report how and why. He said that a CT scan should have been taken before discharge from WWBH in July 2013 which would have shown the presence of a large bleed that should have been evacuated with laparoscopy. He was of the view that it was likely that the haematoma developed before the leak and that bacteria infected the haematoma and that an abscess developed. This can cause sleeve leak if the infected haematoma was next to the sleeved stomach. The infected haematoma increased the risk of developing a leak, and "in all probability was caused by the failure to evacuate the haematoma". 20. Mr Jenkinson also stated that the stricture would have been caused in the surgery and that if there was no stricture, the haematoma had been evacuated early, within two to six weeks the leak would have healed. He stated that Katrina should have been checked early for anterior obstruction by a barium swallow which would have confirmed the stricture and persistence of the leak and sepsis. The stricture should have been treated. It should have been ensured that the drains were working. Dr Harrison should have sought help. Mr Jenkinson also noted that after prolonged sepsis remedial surgery is difficult. There was a need to optimise her cardiorespiratory and nutritional state. Mr Jenkinson acknowledged that the definitive treatment would have been the Roux-en-Y, and that Katrina was not considered strong enough. He acknowledged that it was very difficult to reach the level of fitness required before that procedure could be considered. 21. On 20 April 2020 Mr Jenkinson provided a report in answer to a qualifying letter that directed attention to the risks of alcohol use in relation to wound healing. Mr Jenkinson stated that excess alcohol impairs both tissue healing following trauma and surgery. 22. Mr Jenkinson clarified that methotrexate use was not a contraindication for surgery, but said that the haematoma was significant and should have been investigated by a CT scan and managed. Stricture can perpetuate sleeve leak, but that was unlikely in the absence of identification of a stricture. There was not a failure to diagnose the leak, but there was a failure to diagnose the post-operative haematoma that caused the leak. There was likely impaired tissue healing due to excessive alcohol use. The gastric sleeve should not have proceeded in light of patient's excessive alcohol consumption. It was excess alcohol that likely caused the liver damage. Her GGT levels were in keeping with alcoholic liver damage, not fatty liver as diagnosed by Dr Sethi and Dr Byrnes. Katrina's poor nutrition was caused by extended periods of sepsis. It would have been good practice to refer Katrina to a "more specialised centre". 23. Mr Jenkinson stated that alcohol use was a contraindication for Katrina's surgery given that she admitted to excess alcohol consumption. She was likely dependent on alcohol and so she did not satisfy the criteria in Dr Harrison's own guidelines. Patients often underestimate the amount of alcohol they consume. Alcohol was a contributing factor to the leak, infection and sepsis. As the surgery is elective, she should have been "optimised" psychologically before surgery. The defendant's expert evidence on liability 1. Dr Byrnes is a gastroenterologist of many years' experience. He interviewed and assessed Katrina in March 2017. She told him that a good friend had had a good result from gastric sleeve resection, but an aunt had had a bad result from a lap band and so that was a factor in her choosing the sleeve procedure. 2. Katrina described to him that a week after discharge from hospital after having the procedure she felt unwell, lethargic and hot, with abdominal pain and pain in her upper left quadrant. She was readmitted to hospital. She told Dr Byrnes that Dr Harrison "should have performed a leak test." She told him that she was in hospital for three months. She described to Dr Byrnes still feeling emotional and had had suicidal thoughts and still had episodic vomiting after eating. There was a drain still draining fluid from the fistula and she still had pain in her upper left quadrant "all the time", as well as constipation. She weighed 75kg at that time of assessment. 3. Dr Byrnes assessed the medical and hospital records and concluded that there was in fact a leak test performed on 31 July and there was no leak then present. He said it was appropriate to discharge her on 24 July 2013, given that she had only had a mild fever and there was no indication of any serious abdominal problem. She experienced a delayed leak which was a known risk of the procedure and for which treatment is conservative, comprising parenteral feeding, antibiotics and drainage. This was initially successful. 4. Dr Byrnes explained that if a gastric stricture was present, it probably related to local swelling of tissues from trauma secondary to the formation of fibrous tissue and this fibrotic change in the stomach can lead to a gastric leak and infection. He noted that it was not there at the time of or immediately after the surgery, but came from the healing process. 5. The gastric stricture referred to by others was in fact part of the procedure, but if there was one that was unintended or a pathologically obstructive narrowing, there was no evidence at all that occurred here. Unfortunately, the gastric leak did not permanently heal and at the time he assessed Katrina, it was still continuing. 6. Dr Byrnes stated that the haematoma noted by Katrina on her abdomen was superficial, and not relevant to the intra-abdominal pathology at the time of her discharge from hospital on 24 July 2013. 7. Dr Byrnes noted that the gallbladder sludge found in late 2013 was a result oral feeding being curtailed. He explained that this can produce small calculi which can move into the bile duct and create mild pancreatitis, and this is what caused the need for the cholecystectomy. It was appropriate Dr Harrison performed cholecystectomy at that time. 8. On the issue of liver disease, Dr Byrnes was of the view that Katrina's liver function tests were mildly abnormal pre-surgery, but that that was almost certainly caused by fatty liver from her obesity. Later on, it was noted that there was serious liver disease but that was from sepsis, and this is frequently seen in patients who require intensive care and parenteral nutrition. He noted that Katrina's liver function tests actually became worse post operatively, so this told against any suggestion that her liver disease was alcohol related. A later CT scan showed her fatty liver had improved after surgery. 9. Dr Byrnes was not sure that a portal vein thrombosis was in fact diagnosed, but if there was, this would make the risk of internal bleeding significantly higher if further surgery was attempted. 10. Dr Byrnes stated that the initial treatment for the gastric leak was correct, being inspection, washout, drainage, nutrition and antibiotics. The fistula, being an internal tracking to the skin surface was continued. A stent was attempted to close the fistula, but it had to be removed because it created an erosion. Further surgery was likely to be hazardous given her abdominal pathology, liver abnormality and infection risks. Because of that, surgery could leave Katrina in a worse position. 11. Dr Byrnes disagreed with Dr Miller's report that assumed that there was a stricture created in the surgery, concluding instead that it was simply the narrowing secondary to the sleeve performance, and was as expected. He disagreed that other surgery should have been performed at the times suggested, explaining that further surgery at that early stage could have left Katrina in a much more perilous condition. 12. Dr Byrnes stated that there was a 30% to 50% chance of closure of the fistula without further surgical interference. He noted that a total gastrectomy could result in other more serious problems, leaving Katrina in a worse condition, and that procedure was unlikely to benefit her chronic pain, nutritional status, depression or narcotic dependence or constipation secondary to narcotic dependence. 13. In Dr Byrnes' February 2018 report he noted that Katrina had had the Roux-en-Y surgery and that it had been successful in alleviating some of her problems and he recorded being pleasantly surprised with that outcome. He noted that other parameters remained problematic, namely her chronic abdominal pain and narcotic dependence. 14. Dr Byrnes noted his disagreement with Dr Miller's October 2017 report and rejected outright any suggestion that there was a surgical mishap or creation of a "stricture" that should not have been there, explaining that the confusion seemed to have arisen from a misnomer used in the St George records where it was later more correctly referred to as "relative narrowing by sleeve gastrectomy". Dr Byrnes also made the point that the gastric leak was due to ischemia, that is, impaired blood supply in healing, rather than anything that could be considered to be a technical failure in the procedure performed. 15. In his report of 30 October 2020, Dr Byrnes rejected any suggestion that methotrexate should not have been taken or that it rendered the operation unsafe. 16. In relation to Katrina's allegation about high GGT levels, Dr Byrnes explained that this is an enzyme produced by many organs within the body and the highest concentration of those is found in the liver and the gallbladder. He said that GGT levels can be high in patients for many different reasons including bile duct obstruction from stones, infiltration of the liver by tumour or fat, or inflammation processes from drugs or alcohol. 17. Dr Byrnes explained that alcohol abuse is commonly present in GGT, but it is a relatively insensitive test to try and use to determine excessive alcohol consumption. It is not a test for alcohol abuse, but can give rise to a level of suspicion that there is alcohol abuse. It is not a contraindication for the gastric sleeve. 18. On the question of whether Katrina's alcohol intake meant that she should not have had the gastric sleeve surgery, he observed that there were no obvious markers for alcohol abuse when he reviewed her. There was no alcohol withdrawal during the long period where she was being treated. In hospital her GGTs were persistently high in the post-operative period when she could not have been accessing alcohol, and that is why the GGT levels were more likely due to fatty liver or medications. The liver biopsy did not prove or exclude alcohol abuse, but the diagnosis of non-alcoholic steato-hepatitis indicated away from the high GGTs being caused by alcohol abuse. There was reversible fibrosis present, not cirrhosis. Cirrhosis is irreversible and is associated with alcohol abuse. She did not have cirrhosis. 19. Dr Byrnes explained that there was nothing in the literature that indicated a relationship between alcohol use or abuse and the risk of anastomotic leaks in patients undergoing gastric sleeve gastrectomy, but there were papers on the issue of alcohol affecting healing in colorectal surgery. In that regard he said the literature suggested that up to 8 drinks a day is not a factor for anastomotic leakage and so does not amount to a contraindication for surgery. 20. Dr Sethi is a gastroenterologist and hepatologist. He provided two reports. His first report, dated 12 August 2017, sets out the view that having analysed the clinical records, the treatment given by Dr Harrison was appropriate and reasonable. There was no stricture. On his understanding, stenting is associated with complications such as stent migration in up to 50% of cases, noting that this in fact is what occurred to Katrina when she was stented by the team at St George Hospital. He stated that there was no inadequacy in her care from a gastroenterological point of view. She was seen by Dr Chow at Wagga and he is a gastroenterologist. There was no need to transfer Katrina to a specialist bariatric unit at a major teaching hospital given that the necessary care was able to be given at Wagga. 21. Dr Sethi disagreed that a gastric bypass should have been conducted at the time of the cholecystectomy and that is because there was still a chance that the fistula could resolve, and it was actually speculative whether a gastric bypass would have had the effect of closing the fistula. 22. Dr Sethi said that Katrina's liver disease was a significant contributing factor, and that her liver disease was due to her obesity and excessive alcohol. He also noted that delay in her recovery was because she frequently ate unhealthy foods. 23. The complications were appropriately recognised and treated, and Dr Sethi does not believe a transfer to a different hospital would have led to a different outcome for Katrina. She received all the necessary and appropriate treatment. 24. Finally, he concluded that fistula and stricture are well-known complications in gastrectomy and do not imply in any way that there was a negligent performance of the procedure. 25. Dr Sethi also went through the list of injuries and disabilities Katrina's solicitors had set out in the statement of claim and particulars, noting that none of those were caused by anything that Dr Harrison did or failed to do, but were all well-known complications or sequelae of the procedure she sought to have and was given to deal with her morbid obesity. 26. Dr Sethi provided a further report on 18 November 2020 confirming his view that gastric sleeve surgery was very strongly indicated given her morbid obesity and that that was the only realistic prospect for weight loss. On his review of the records, she was properly advised, and treatment was given in accordance with widely accepted peer professional opinion as competent professional practice. 27. Dr Sethi noted that Katrina had given conflicting accounts regarding her alcohol use, but in any event, alcohol use is not a contraindication for surgery nor is methotrexate use nor her GGT levels which were not relevant or important. Dr Sethi noted the studies in the literature that he had analysed do not support that there was any problem with those particular issues. He explained that the GGT levels being raised is not a contraindication to surgery and is only a measure of one component of liver function. He explained that alcohol use does not exclude Katrina as a proper candidate for surgery, noting that she had no alcohol withdrawal symptoms. Dr Sethi also made the critical point that the previous study by Sorensen in 1999 upon which the plaintiff experts relied had been reconsidered and updated by a further study in 2013 which actually withdrew the conclusions set out in the 1999 study. The 2013 Sorensen study [107] concluded that there is no contraindication for surgery due to healing risks associated with alcohol. 28. Dr Sethi also noted that it was not the practice in 2013 to refer patients requesting sleeve gastrectomy to a psychiatrist or psychologist for counselling where there was no documented history of mental health problems. 29. Dr Garett Smith is a gastrointestinal and bariatric surgeon of 17 years' experience and so was performing bariatric surgery in Australia in 2013 and the following years to date. In his report dated 1 June 2018, having assessed the medical and clinical records, he concluded that Katrina was an appropriate candidate for sleeve gastrectomy, that she was well educated in the procedure and that had been appropriately informed of the risks. The treatment undertaken, including the surgical procedure, was appropriate. Dr Garett Smith described how Katrina's nutritional status became suboptimal and a number of medical complications followed, including gallstone pancreatitis and possible portal vein thrombosis which would have made the question of further surgery difficult and potentially very complicated. He concluded that there was no indication that any of the management of Dr Harrison was lacking. 30. In his second report dated 19 June 2019, Dr Garett Smith addressed more specifically the content of the criticisms contained in the expert reports served on behalf of the plaintiff. He concluded that it was appropriate to discharge Katrina on the third day post operatively because she was very stable and there was no ongoing bleeding of significance and no cardiovascular compromise. He said that discovery of haematoma by CT would not have altered management and it would not have demonstrated ongoing bleeding as indicated by the absence of cardiovascular compromise. He said that even if there was a haematoma, it was reasonable to leave it. The proper treatment of the haematoma was provided and that was drainage, noting that interventional radiology carried with it additional risks and it was best to leave the haematoma to resorb. 31. On readmission on 31 July 2013 and following, the treatment was appropriate. It was unlikely that the haematoma contributed to the gastric leak. He concluded that it was unlikely that there was any stricture other than what was expected by the procedure and that Dr Harrison used a standard sized bougie for the procedure. Dr Garett Smith noted that gallstones are a common complication of sleeve gastrectomy. 32. In his November 2020 report Dr Garett Smith reiterated that Katrina was a suitable candidate for sleeve gastrectomy and that Dr Harrison acted in accordance with competent professional practice when assessing her as suitable. She had high risk obesity with significant potential morbidities. Dr Garett Smith concluded that the preoperative education was comprehensive and there was certainly sufficient educational material provided both in the consultations and in the documents provided to her. Contrary to the opinions expressed in the reports relied upon by the plaintiff, Dr Garett Smith was of the view that two standard drinks per day is not a contraindication to surgery, including against a background of heavier drinking in the past. 33. Dr Garett Smith concluded that the GGT levels were mildly elevated and are non-specific findings and certainly not contraindications for the surgery. He said that methotrexate use does not exclude Katrina from the surgery. Dr Garett Smith concluded that it was not consistent with competent professional practice at the time to require Dr Harrison to refer Katrina for psychiatric or psychological assessment or counselling given that there was no recent history of major psychiatric or psychological problems. It is not required now, nor was it in 2013 required to refer a patient for psychological assessment or counselling; there needs to be a particular indication to do so. 34. Professor Wendy Brown is a general surgeon with a subspecialty interest in upper gastrointestinal surgery and bariatric surgery and was active in practice performing bariatric surgery in Australia in 2013 and following. She is the President of the Australia and New Zealand Oesophago-Gastric Association, a Past president of the Obesity Surgery Society of Australia, the Past Senior Examiner in the Court of General Surgery for the Royal Australian College of Surgeons, the Chair of the International Federation for the Surgery of Obesity (IFSO) Scientific Committee and the IFSO Global Registry. 35. Professor Brown was of the view that there was a structured assessment process involving a nurse practitioner and dietician before also seeing Dr Harrison, and that thorough histories were taken that considered comorbidities and risk factors and provided clear communication to the patient regarding risks and consequences. 36. Professor Brown pointed out that on assessment on and after 31 July 2013, appropriate treatment was performed by way of laparoscopic washout and endoscopy with drains and a nasogastric tube for feeding. It should be noted at that time there was no staple line leak. It had been searched for using two different methods. There was transfer to Calvary Hospital and a CT scan on 5 August which at that point confirmed a leak and a drain was inserted and treatment provided that was appropriate. 37. On 16 January 2014, during that admission an ultrasound was performed that showed steatohepatitis without cirrhosis. Professor Brown was of the view that this was a result of the weight loss, being on parenteral nutrition, paracetamol and other medication use and previous alcohol use. 38. In response to specific questions raised, Professor Brown confirmed her view that the procedure was competently performed, that Dr Harrison was a bariatric surgeon of 10 years' experience at the time, and the performance of the procedure was in accordance with appropriate skill expected of a general and bariatric surgeon. 39. Professor Brown confirmed that there was consultation with a multi-disciplinary team, as well as discussion with other units and specialists such as St George Hospital in contemplating whether a Roux-en-Y would be needed and when. 40. Professor Brown said in terms of stent use that it was "highly controversial" at that time. She noted that it did not help here when it was done in 2014 and had to be removed within a short period. It is highly unlikely that stent insertion earlier would have been helpful, and if performed earlier had a risk of migration, causing damage. 41. Professor Brown's view was that Dr Harrison diagnosed the gastric leak as soon as it was clinically apparent. These leaks generally occur at day 7 to 14 and Katrina's appeared at day 7 and she was treated appropriately. In terms of discharge from hospital after the initial surgery, Katrina had a quickly resolving fever and a CT scan was unlikely to reveal anything useful. In Professor Brown's view the surgery was appropriately performed, there was no "stricture" and in her view the sleeve was a normal shape, so it was not true to assert that there was an inadequate amount of stomach left. 42. As to the origin of the leak, Professor Brown was of the opinion that it followed the gallstone pancreatitis where a scarred area of the stomach reopened. There was then a need to create a controlled fistula to assist with healing. This can close spontaneously and if it does not, then you consider surgery. Professor Brown's view was that Dr Harrison did exactly the right thing to manage the problem. The steps to manage the fistula were nourishment, ensure there was no distal obstruction and control any sepsis with drain and antibiotics. 43. Professor Brown emphasised that a stent would not have been useful to manage gastric leak from a sleeve procedure at that time because a stent can move and fluid can still get around this stent and leak and cause abscesses and eroding of other organs and major vessels. 44. Professor Brown was of the view that gastric bypass was not appropriate to consider whilst there was a prospect of healing of what was becoming a mature fistula. 45. Professor Brown made the point that the four experts relied upon by the plaintiff are not practising bariatric surgeons in Australia and so would not have been familiar with the practice in Australia in 2013. 46. Professor Brown did not agree that there was any role in the haematoma causing the staple line leak. She concluded that it was a very unfortunate outcome, but gastric leak is a well-known risk of this for the procedure. 47. In her follow-up report dated 6 August 2019, Professor Brown confirmed that the fistula was a deliberately created controlled track from the wound to the skin, which was created to assist with drainage and healing. 48. In a further report dated 6 November 2020 addressing the newly raised allegations in Katrina's case about alcohol use, Professor Brown concluded that it was reasonable, based on what was in the records, that Dr Harrison would have accepted that Katrina reduced her alcohol intake to 1 to 2 glasses a day as opposed to one bottle of wine a day. 49. Professor Brown said that GGT levels are very non-specific and could be related to methotrexate, other medications, her underlying medical conditions, obesity, hypertension or alcohol intake, and those GGT levels do not contraindicate sleeve gastrectomy. 50. In conclusion, Professor Brown stated that Dr Harrison's treatment was consistent with the competent professional practice of a bariatric surgeon practicing in 2013 in Australia. Katrina was seen by three separate professionals for history-taking and information-giving. She received handouts explaining the procedure and its risks. Her excessive alcohol consumption was a relative contraindication because of the possibility of advanced liver disease, the increased risk of surgical complications (although nothing has shown those complications are increased for bariatric surgery) and that her post operative weight loss might be less because of high liquid calorie intake. Dr Harrison's approach to assess her alcohol intake and to proceed was consistent with what would be reasonably expected from a competent medical practitioner. Methotrexate cessation two weeks prior to the operation is consistent with common practice in 2013. There was certainly no need to exclude Katrina because of that. Professor Brown reiterated that she thought that there was a very thorough approach to education, in fact more than thorough, it was exemplary by the standards in place in 2013. She concluded that in 2013 there was no practice in Australia to routinely require formal psychological or psychiatric assessment, and she did not believe that any such referral or assessment would have achieved anything. The conclave and joint expert report on liability - February 2021 1. On 10 February 2021, a four-hour conclave of liability experts was attended by Dr Miller, Mr Jenkinson, Professor Morris and Dr Mar Fan, Dr Sethi, Dr Byrnes, Dr Garett Smith and Professor Brown and a report was produced (Exhibit NN) addressing 32 questions agreed upon by the parties ("the joint liability report"). 2. Also in attendance was Dr Selwyn Smith a psychiatrist. His participation was limited to questions 1 to 4 which were addressed to the question of whether a psychiatric or psychological assessment should have been provided to Katrina before the surgery and whether and why alcohol dependence was or may have been a contraindication to surgery. 3. Despite raising an issue regarding the presence of Dr Selwyn Smith at this conclave, concerning as it must the evaluation of the conduct of a bariatric surgeon judged by the relevant standards in place in 2013, and requesting an explanation from both sides of the bar table as to why it was thought appropriate by them to have Dr Selwyn Smith attend, [108] no explanation was ever provided, other than that I was told that his presence there was by consent. 4. At a much later stage of the trial, senior counsel for the defendant took formal objection to the tender of any of Dr Selwyn Smith's opinions in any of his reports dated 30 August 2016, 28 August 2019, 4 December 2019 and 19 March 2020 and his answers to questions 1 to 4 in the joint liability report and his part of the joint psychiatrists' report with Dr Rees. 5. That general objection was taken on the basis that Dr Selwyn Smith had died in January 2022, and so could not be cross-examined and that visited an unfairness upon the defendant. 6. The secondary position was that Dr Selwyn Smith's views on questions of the negligence or otherwise of Dr Harrison were inadmissible and so those parts of his reports, and his part in the first 4 questions in the joint liability report focussed on those issues, should not be admitted. 7. I did not accede to the general objection but upheld the objection regarding the admissibility issues and informed the parties accordingly on 20 May 2022. [109] 8. Dr Selwyn Smith's evidence regarding his assessment of Katrina's psychological and psychiatric sequelae I determined should be received into evidence so his four reports (Exhibits HH, JJ, KK and LL) with the inadmissible parts redacted, his CV and the joint report of the psychiatrist conclave he held with Dr Rees psychiatrist were admitted. [110] 9. The reasons for my rulings on Dr Selwyn Smith's evidence is a subject I dealt with at [203] to [210] of this judgment. For the purposes of the joint liability report, and the concurrent evidence of the relevant experts that took place on 18 May 2022, Dr Selwyn Smith's opinion on the key question of whether Dr Harrison acted in a manner that at the time the service was provided was widely accepted in Australia by peer professional opinion as competent professional practice, was disregarded. 10. Questions posed for the joint liability conclave were not all sufficiently focused in their form on the standards in place in Australia for bariatric surgery as they prevailed in 2013. There was however useful expert comment regarding some relevant matters. 11. A facilitator was used as is appropriate given the eight participants at remote locations and the need to use AVL. It became evident by question 7 (of the 32 questions considered) that the plaintiff's four experts had been given an additional document entitled "Assumptions for Liability Joint Conference of Experts" ("the plaintiff's assumptions") [111] which had not been provided to the experts retained by the defendant, and which included a series of assumptions regarding alcohol intake that I have concluded are not established. 12. It barely needs to be stated that this practice should never take place. It is essential that all experts receive identical assumptions and information for the purposes of the conclave. Alternative assumptions are of course acceptable, but all the experts need to see them. 13. The difficulty created by the plaintiff's assumptions document was that it created a demarcation dispute as to the "facts", before the discussion between the experts had even begun. 14. Pragmatism prevailed and the experts agreed that the conclave should continue but that there would be a necessity to clearly state the facts upon which an opinion is based. 15. The plaintiff's assumptions included that both Katrina's parents were alcoholics, that she had begun to consume alcohol from about 2002 and that by 2013, when she consulted Dr Harrison in May, she was drinking a bottle of wine a night during the week after work and was drinking heavily on the weekends including up to a bottle of wine and spirits usually vodka red bulls. Although she reduced this in the month prior to surgery, she was still drinking a bottle of wine 5 to 6 nights per week. The plaintiff's assumptions also asserted that the consultations with the dietician and the bariatric nurse were "brief" and that there had been no discussion regarding the weight loss surgery, and no advice to reduce alcohol, and Dr Harrison did not tell her to cut down her alcohol consumption and did not discuss the risk of a gastric leak. 16. As is evident in my findings in this judgment, none of those assumptions have been established. 17. The joint liability report largely reflected the views that each expert had already set out in their reports, and were to an extent relevantly expanded upon during the concurrent evidence on 18 May 2022. 18. Question 1 was directed to whether in 2013 every prospective bariatric surgery patient should have education, psychiatric assessment and/or psychological assessment. Broadly the experts agreed that education was important, and that Katrina had received adequate to good pre-surgery education in this instance. Professor Brown emphasised that as a practising bariatric surgeon in 2013 who lectured on education, what Katrina received was consistent with good practice in Australia at that time. Dr Garett Smith and Dr Byrne agreed, as did Dr Sethi, Mr Jenkinson and Professor Morris. Dr Mar Fan and Dr Miller abstained from expressing a view about this subject. 19. In terms of psychological and psychiatric review, the debate was not clearly focused on the prevailing standards in Australia in 2013. Mr Jenkinson purported to speak for all experts in stating that every patient should have psychological screening and some patients should go on to have formal psychological and psychiatric assessment. Dr Mar Fan agreed. The defendant's experts did not agree, noting the multiple layers of screening that occurred and that there were no alarm bells regarding Katrina's preoperative psychological or psychiatric state that required assessment. In particular Professor Brown emphasised that she did not believe that it was the practice in 2013 for a reasonable surgeon to refer patients for a formal preoperative psychological and/or psychiatric assessment. Dr Byrnes, Dr Garett Smith and Dr Sethi agreed. 20. I interpolate here that the only psychiatric or psychological history Katrina had was that her GP prescribed antidepressants for six months in 2000 after Katrina's mother died. 21. Dr Mar Fan speculated that if Katrina had had psychological assessment she may not have been selected and the complications would not have occurred. 22. Questions 3 and 4 dealt with what was termed "alcohol dependence" and whether it was a contraindication to bariatric surgery and if so why and at what level of frequency and consumption. Professor Brown confirmed her view that alcohol dependence was a relative contraindication and that is how it was taught in 2013. The focus is on first, whether a sufficient therapeutic relationship is formed, and second, whether the high calorie count in alcohol may be a predictor for less favourable outcomes from the surgery. Alcohol dependence would be an absolute contraindication if there was alcoholic liver disease present which would mean the surgery would be unsafe because of bleeding risks, but that was not the position here. 23. Mr Jenkinson agreed that alcohol dependence was a relative contraindication and to that extent agreed with Professor Brown. 24. Dr Mar Fan agreed that it was a relative contraindication, but that in this particular instance the assumptions he had been asked to make about the plaintiff's consumption level meant that she was "way above" the normal limit and so probably should have had some treatment of this before she went ahead with surgery. 25. Professor Morris, Dr Byrnes, Dr Garett Smith, Mr Jenkinson, Dr Sethi and Dr Mar Fan agreed that it was a relative contraindication. Dr Miller at this stage did not offer an opinion in relation to this question although at the time the concurrent evidence was given, Dr Miller stated that the literature indicated higher levels of alcohol increase levels of bleeding, wound infection and anastomotic breakdown. 26. For the purposes of the conclave, "alcohol dependence" was defined as drinking 750mls of wine per day in 2013 pre-surgery. Professor Brown explained that given there were no sign of alcohol withdrawal or chronic liver disease, there was a question mark over whether Katrina was in fact alcohol dependent. 27. The experts were divided as to the likely effect of Katrina's pre-operative alcohol intake on the likely success of the surgery and postoperative recovery. The plaintiff's group of experts stated that there is evidence that significant alcohol intake has a negative effect on healing and can cause bleeding and adverse consequences, assuming Katrina was in fact drinking 7 to 8 standard drinks per day. 28. The defendant's experts disagreed that there were any studies to that effect for bariatric surgery, and that patients who drink a small amount of alcohol have a better outcome, whereas those who drink larger amounts (up to 8 drinks per day) have no worse an outcome than those who do not drink at all. 29. The 7th question regarding what steps Dr Harrison should have taken in light of Katrina's history of alcohol consumption was where it became evident that there was a divide in assumptions, the plaintiff's experts all remaining of the view that 750mls a day is what Dr Harrison was told and that was the fact, the defendant's experts drawing attention to the other evidence about what Katrina told people she was drinking. Dr Sethi maintained the view that even with up to 8 standard drinks a day, it was still appropriate to proceed as Dr Harrison did. 30. There was division between the plaintiff's and the defendant's experts as to the GGT levels and their significance, the plaintiff's group of experts insisting that the GGT indicated excessive alcohol consumption and the defendant's disagreeing, Dr Byrnes explaining that Katrina maintained an elevated GGT even when in hospital, and given that GGT half life is about 14 days, she would need to drink a lot of alcohol to keep the GGT raised. There was never any reduction in Katrina's GGT regardless of being in hospital where alcohol could not be accessed. 31. The experts were divided as to whether the GGT level were a contraindication for sleeve gastrectomy, the defendant's experts stating that it was not and the plaintiff's group saying that it was a "relative contraindication" that would raise concerns about surgical risk and outcome. 32. All the experts (except Dr Miller, who abstained) agreed that the risks and surgical options were explained, but they were divided as to whether Katrina was a suitable candidate for the surgery judged by "standard practice in 2013", Mr Jenkinson and the plaintiff's experts stating that Katrina was not, and the defendant's experts stating that she was, and that Dr Harrison had made an appropriate preoperative assessment and his decision-making process was consistent with practice at that time. 33. All the experts agreed that there was no distal stricture created at the incisura (except Dr Miller and Dr Mar Fan) and the opinions were mixed about methotrexate use, but all the experts other than Professor Morris accepted that methotrexate was not a contraindication to surgery. 34. All the experts agreed that the post-operative haemoglobin levels indicate that there had been blood loss. 35. Regarding the diagnosis and treatment of the gastric leak, all except Dr Mar Fan and Professor Morris were of the view that this was appropriate. Dr Miller thought that when the leak did not settle by 12 months, definitive surgery should have been performed but "wasn't offered". Significantly Mr Jenkinson, the only expert in the plaintiff's group who actually performed bariatric surgery in 2013, noted that recognition, diagnosis and treatment of gastric leak can be difficult, and he has no criticism of that. 36. The question as to the usual healing time for gastric leak was answered by Mr Jenkinson that it can be weeks or months, and if the patient is nutritionally malnourished, it can take years before the leak is treated successfully. Professor Brown added that in 2013 it tended to be longer, because surgeons were not as au fait with treating leaks then as they are now, and there are more techniques for treating leaks now. Dr Miller was of the view that Katrina was left for four years without definitive treatment and that was too long. 37. All the experts agreed that ongoing treatment of a leak is complex, and includes strategies for managing fistulae, and ongoing radiological assessment and supportive treatment. Mr Jenkinson agreed that gastric sleeve leak treatment can be extremely complex, and whilst he has no criticism of the treatment in this case, the issue is whether the surgery should have occurred at all. 38. Question 22 was directed to likely outcome: if "timely and appropriate" treatment had been carried out would Katrina have avoided the chronic infection and fistula formation complications. Mr Jenkinson was only prepared to say that the risk of a leak would have been decreased. Professor Morris, Dr Mar Fan and Dr Miller agreed that more timely treatment "may well have been advantageous to Katrina". (Whatever that means was left unexplained). 39. Professor Brown however stated that it was speculative as to whether treating the postoperative haemorrhage surgically would have made a difference, and that while four years is a long time to leave someone with a fistula, and that is beyond what would normally be expected, the last contact with Dr Harrison was late 2015 and so the ongoing decision-making was then in the hands of others. 40. All the doctors agreed that it was not negligent to not use a stent in August 2013 to treat the leak. 41. All the doctors agreed that the intra-abdominal haematoma should have been diagnosed on 1 August 2013, (and it was), but Dr Garett Smith and Professor Brown agreed that the definitive diagnosis of the haematoma does not have any bearing on the outcome of the case. 42. There was division in the opinions as to whether delay in treatment of the haematoma caused anything. Mr Jenkinson said it "increased the risk" of a leak, but he was not able to say whether it in fact probably caused the leak. Dr Garett Smith said that it is speculative as to whether the haematoma had any role. Professor Brown agreed. Professor Morris however stated that on "basic principles", haematomas next to anastomoses that get infected can be, in the case of bowel anastomoses, causative of leakage and sepsis and so it "may" have been important. 43. I interpolate here that my interpretation of the answers to this question is that it remains speculative as to whether the haematoma or the decisions made as to how and when to treat it, had any causative role in the gastric leak. 44. All agreed that Dr Harrison's management of the gastric fistula during the August 2013 admission was appropriate. 45. The experts were divided as to whether Dr Harrison should have considered transferring Katrina to a specialised bariatric surgical unit or specialist upper GI unit during her August to September 2013 admission. All of the defendant's experts thought it was appropriate to keep her care in Wagga as did Mr Jenkinson, noting that there were two surgeons available, and that Dr Harrison had discussed the case with colleagues at a larger hospital. Dr Miller, Professor Morris and Dr Mar Fan considered that Katrina should have been transferred, to "get help by sending her somewhere else." 46. Whilst this is a matter for the Court, the experts were asked to address the s 5O test. The defendant's experts said Dr Harrison's treatment was consistent with competent practice, but Professor Morris disagreed due to "lack of work-up in the first place" and the non-referral to a specialist unit. Dr Miller said the management was fine up to the end of 2013, but not after that. Mr Jenkinson said that the management and treatment was appropriate, apart from patient selection and the delay in diagnosis and treatment of the haematoma. Dr Mar Fan agreed with Dr Miller and Mr Jenkinson. 47. Dr Miller, Professor Morris, Dr Mar Fan and Mr Jenkinson all stated that by the later half of 2014, Katrina should have been referred to a specialist unit or offered a definitive solution. 48. Professor Brown does not agree, noting that Katrina had a particularly complex course with the fistula reopening, requiring cholecystectomy, and noting that there had been conversations about gastric bypass and the need to consider it and when and why. Dr Garett Smith, Dr Byrnes and Dr Sethi all agreed with Professor Brown. 49. The answers given about definitive surgical intervention indicate that there was a lack of clarity in the assumptions given to the experts about the role of St George Hospital, Concord Hospital surgeons and Dr Le Page's role and when he was involved. This subject remained unclear. The concurrent evidence of the liability experts 1. The eight liability experts gave evidence concurrently on 18 May 2022, seven of them in court and Mr Jenkinson appearing by AVL from London. There was a high degree of professional respect and courtesy extended to each other and the concurrent evidence was of great assistance to the Court in understanding the complex issues in this case. The Court is grateful for the excellent quality and comprehensiveness of the assistance provided by all of these eminent experienced medical practitioners. 2. Given the role of s 5O of the Act and its centrality to this enquiry, my analysis of the expert evidence does not require me to proceed to an acceptance or rejection of the different opinions offered, in the manner that was required prior to the Act. The selection of Katrina for the procedure and the management of the surgery and its complications is clearly a matter on which highly educated and reasonable minds may differ. 3. What is required by the enquiry under s 5O in determining the standard of care for professionals, is whether Dr Harrison does not incur liability in negligence arising from the provision of his professional services because it is established that he acted in a manner that at the time the services were provided, was widely accepted in Australia by peer professional opinion as competent professional practice. 4. In the context of this case, I formed the view that there was no need for a demarcation between bariatric surgeons and the experts that practised in gastrointestinal surgery and gastroenterology and hepatology because each expert had carried out analyses and formed opinions that were within their specialty. 5. The demarcation of views remained reflective of what the experts had set out in their initial reports and in the joint liability report. In making that observation I am in no way suggesting that any expert was dogmatic. To the contrary, it appeared to me that their opinions were carefully considered before committing them to writing, and a great deal of thought and analysis had been involved so it was to my mind unsurprising that the experts maintained their views. In some instances, within the debate between the experts during the concurrent evidence, opportunity was taken for particular views to be expanded upon and more fulsomely explained or expressed for the Court's assistance. 6. By this stage of the proceedings the key areas for debate were focused upon six main areas. First, whether competent professional practice in 2013 required Katrina to undergo psychiatric or psychological assessment prior to the surgery: (issue 4 in the concurrent evidence issues list), whether there was sufficient preoperative assessment: (issue 5), whether the level of alcohol consumption pre-surgically, including reference to the relevant GGT levels, was a contraindication for surgery: (issue 6), the likely impact of alcohol consumption on bariatric surgery outcome for Katrina: (issue 7) and ultimately whether Katrina was a suitable candidate for the surgery given her alcohol consumption, GGT levels and methotrexate use and whether she ought to have been excluded from surgery: (issue 9). 7. The second area of focus was the discharge of Katrina initially on 25 July 2013 given her clinical state and relevant pathology results: (issue 10), the development of the intra-abdominal haematoma and whether it was diagnosed and treated in an appropriate fashion: (issue 11), and whether there was a causal connection between the infected haematoma and the development of the leak along the staple line: (issue 12). 8. The third area of focus was the timing of development of the leak and whether it was recognised, diagnosed and treated appropriately: (issue 13). 9. The fourth area was the timing of the development of the fistula and whether it was managed in a way that was consistent with proper professional standards in place at the time: (issue 14). 10. The fifth area of focus was whether there was a requirement for transfer of Katrina to another bariatric surgical unit or upper GI unit between 2013 and 2015, and if so, the appropriate timing of any such transfer: (issue 16). 11. The sixth area of focus was whether and when Katrina should have been offered the Roux-en-Y surgery and why: (issue 17). 12. There were other matters addressed by the concurrent evidence but they are more background issues. I identified these six areas of focus as the key aspects of the negligence case to which the plaintiff's case had by then been distilled. 13. Mr Jenkinson maintained his view, expressed in terms of "every bariatric surgeon in the world", would know that someone drinking far in excess of the recommended alcohol intake needs psychological assessment for the reasons that they are doing it. He noted that in the UK in 2013 there were MDTs with psychologists involved as part of the team and that the excessive use of alcohol was a red flag and it was inappropriate not to refer a person to a psychologist in that context. The task is about triaging the patient, whether they are suitable to undergo the surgery in the first place, it is not about outcome. Professor Morris and Dr Mar Fan agreed, although Dr Mar Fan identified alcohol use as a potential psychosocial problem that may impair weight loss. 14. Dr Garett Smith did not agree. In the absence of evidence of any active or ongoing psychological or psychiatric issues with the patient, and she had attended a number of consultations with staff, there was no evidence to suggest that there is any need or benefit in her being referred to a psychologist. Professor Brown agreed, noting that there was a study carried out in 2013 which followed 200 patients that indicated there was no positive or other impact on their outcomes based on having psychological assessment or not. Professional standards in place in Australia in 2013 did not require routine involvement of a psychologist assessment, even in the face of alcohol use. 15. Dr Byrnes pointed out that the clinical record indicated to him that Katrina told Dr Harrison that she had cut down her drinking from 750mls of wine per night and that there was no reason to expect that she could not substantially cut down her alcohol intake. When she was admitted to Calvary Hospital she said she was having one glass of wine per night. She also told Dr Rees psychiatrist in 2017 when asked that she had not had any previous problems with alcohol. Dr Byrnes offered the view that it would be a waste of time to mandate psychiatric assessment. Dr Sethi agreed, noting that he had referred a number of patients for sleeve gastrectomy over the years and was not aware of anyone being referred to see a psychiatrist or psychologist for assessment prior to surgery. 16. Mr Jenkinson stated that given Katrina admitted to drinking four times over the normal alcohol limit per day, regardless of standard practice in Australia at the time, it was not appropriate for her to undergo the surgery without prior psychological assessment. Dr Mar Fan was of the view that there was a lack of adequate assessment given the absence of referral to a psychiatrist or psychologist for assessment and Professor Morris agreed. 17. Dr Garett Smith argued that the assessment was sufficient, and that Katrina's comorbidities were considered appropriately and assessed, including consultation with the dietician, and that there was no evidence that Katrina had any end organ damage or liver dysfunction at that stage. Consultation with the three separate health professionals including reference to alcohol consumption and addressing parameters was adequate assessment upon which to base the decision to proceed. Even assuming Katrina was in fact drinking 750mls of alcohol a night in the past, which is excessive in anyone's book, if the patient is then reporting that they had reduced that to 1 to 2 glasses a night, that is satisfactory and there would be no need to refer her for further evaluation. Professor Brown agreed. 18. In terms of the GGT levels and their reflection of the level of alcohol consumption pre-surgically, Mr Jenkinson considered these to be a "big red flag" here, and an indication for someone drinking too much alcohol. Dr Miller agreed, noting that the other liver enzymes were within the normal range and only the GGT was raised, and that led him to the view that that raised GGT was related to a high level of alcohol consumption. Professor Morris agreed, whilst stopping short of indicating that it is a contraindication (meaning Katrina should not have the surgery) stating: "there is never a full stop in medicine", it made it a higher risk procedure and he would have wished considerable effort to be made to correct the issue of high alcohol intake before surgery. Dr Mar Fan agreed. 19. Professor Brown agreed that an elevated GGT when it is isolated can be a marker of high alcohol use, but that needs to be considered in the clinical setting including that it could have been induced by a number of different things including medication such as methotrexate, her blood pressure tablet, Oxycodeine, obesity, possibly asymptomatic gallstones, high blood pressure and rheumatoid arthritis. Dr Garett Smith agreed, noting that Katrina did not have liver disease or portal hypertension. Dr Byrnes agreed that GGT is a very non-specific test and that Katrina's GGT level never dropped towards normal levels despite her being in intensive care unable to access alcohol. Dr Sethi agreed with this. 20. Mr Jenkinson gave the opinion that the likely impact of alcohol consumption on bariatric surgery outcome comprised the risks of addictive behaviour and more alcohol consumption, as well as the increased likelihood of bleeding and infection. Dr Miller agreed, assuming the high level of alcohol intake being considered in answering this question was the 750mls a day of wine. Professor Morris agreed, but clarified that the probability of these things impacting the patient would probably be less than 50% but they are serious matters, such as the risk to healing of anastomoses. Dr Mar Fan agreed noting that he did not think there was any difference in these considerations for upper GI surgery as opposed to colorectal surgery, and that the considerations apply across the board. 21. Dr Garett Smith did not agree, stating that he did not believe the alcohol consumption would have had any bearing on the outcome of surgery in terms of complications. Professor Brown noted that unless someone was drinking to the point that they undoubtedly have cirrhosis and liver disease and portal hypertension, there is no contraindication. Professor Brown emphasised that it is important to consider the clinical state of the patient. There is a lot of disagreement professionally as to whether there is a level of drinking that is not quite at the dangerous level but that can impact post-operative outcome such as bleeding and anastomotic leakage. She also made the point that there is no "anastomosis" in sleeve gastrectomy but instead there is a staple line but the principles probably still apply. Ultimately the effect of alcohol on healing remains an area of conjecture within the surgical literature. 22. Dr Byrnes stated that a paper by the same authors as the 1999 paper upon which the plaintiff's experts relied, Sorensen and Shabanzadeh, published a meta-analysis in 2013 where they found there was no difference between alcohol drinkers and non-drinkers when they adjusted for age and smoking and so they concluded that alcohol drinking is not an independent risk factor for surgical site infection. Dr Sethi added that it is important to bear in mind that people undergoing bariatric surgery are by definition severely obese, so one would have to assume they had food addiction, so most patients undergoing bariatric surgery manifest addictive behaviour. 23. On the exclusionary question as to whether Katrina was a suitable candidate for gastrectomy given her alcohol use, GGT levels and methotrexate use, Mr Jenkinson said this: "Yeah, I, I agree that you have to balance risk when deciding whether surgery is appropriate or not. And there is a risk of not operating on someone who is obese, of you know, development of diabetes, increasing weight even further et cetera, et cetera. But the - there is also a risk of operating on someone inappropriately, particularly in the, the elective setting where it's not an emergency, you can wait for six months, nine months, a year until you know, their properly assessed. If you operate and perform bariatric surgery inappropriately, you can, you know - it can become a disaster. So, you have to sort of balance that risk that inappropriate bariatric surgery can lead to, you know, really bad outcomes." [112] 1. Dr Miller, Professor Morris, Dr Mar Fan agreed with Mr Jenkinson. 2. Dr Garett Smith stated the following in response: "…. Only to underscore the fact that this patient standard to benefit greatly from bariatric surgery. So, we haven't really addressed that in our discussion which has been around the contraindications and the risk of complications regarding patient factors. The fact of the matter is - the fact of the matter is though this lady was very obese and had a shortened life expectancy compared to a normal weight individual, had established comorbidity. And again standard to gain a great deal from her health and quality of life and longevity perspective by undergoing the surgery." [113] 1. Professor Brown and Dr Sethi agreed with Dr Garett Smith and had nothing to add. Dr Byrnes agreed, adding that there were significant problems "down the road" in terms of Katrina's liver disease, noting that the fibrosis that she was found to have was reversible, but the next stage is cirrhosis, which is irreversible, and leads to other potentially fatal conditions. 2. On the issue of discharge from hospital on 25 July 2013 Mr Jenkinson emphasised that it was putting a patient at risk to discharge them when they have an intra-abdominal bleed, probably from the staple line and that a CT should have been done. Dr Miller, Professor Morris and Dr Mar Fan agreed, even if conservative treatment of the ultimately discovered haematoma was to be deployed. 3. Dr Garett Smith disagreed noting that you need to look at the whole presentation of the patient which included that she was asymptomatic, she felt well, was ready for discharge, tolerating oral fluids had had a drop in haemoglobin that was starting to recover so you would assume that she had had a bleed. Intra-abdominal bleeds along the staple line are not uncommon. A CT scan was not really required in those circumstances, and it would not have changed management. Her blood pressure was fine, and she lived locally so could re-present if there was any difficulty. Professor Brown agreed, noting that Katrina did not have unstable blood pressure, her pulse was normal and so it was very unlikely that there was any active bleeding. Dr Byrnes and Dr Sethi agreed. 4. The intra-abdominal haematoma was another area for debate, Mr Jenkinson stating that he thought there was a delay in recognising the fact that there was a large haematoma intra-abdominally which has its own risks including the risk of infection and that treatment of it should have been discussed with the patient. Dr Miller agreed. A large haematoma is a potential nidus for infection and so most surgeons would evacuate it, but he could not speak for his bariatric surgeon colleagues and was speaking more generally. Professor Morris agreed that it was not recognised, diagnosed or treated in an appropriate fashion or early enough, and that if it was next to the staple line, it is "worrying" because it can cause gastric leak if it applies pressure to the staple line. Dr Mar Fan agreed with Professor Morris, Dr Miller and Mr Jenkinson. 5. Dr Garett Smith offered the view that most post-operative haematomas following sleeve gastrectomy come from low-volume bleeding from the staple line and it could have come from blood vessels around that area or the spleen, but most post-operative haematomas are treated conservatively and left in the body to absorb back into the system so the body can make use of the protein and the haem and the iron. The investigations conducted were appropriate and conservative treatment was appropriate. The CT scan would not have added anything to the management decisions. Professor Brown agreed with the fact the bleed was diagnosed with the haemoglobin drop. It was not necessary to do a CT scan. It is preferable to leave all bleeds alone (regardless of size) as much as possible because there is a risk when you go back in that you will damage other organs or damage the sleeve or introduce infection. Conservative management was appropriate given those risks. 6. On the question of whether there was a causal link between the infected haematoma and the development of the leak along the staple line, the experts could not conclude whether the infected haematoma caused the leak or not. All that could be said was that it was a sizeable haematoma. Dr Garett Smith offered the view that he did not know of any evidence to suggest that a haematoma next to a staple line or anastomoses causes a leak. Staple line leaks in sleeve gastrectomy are well-known and the most feared complication and the most studied in terms of pathogenesis. Professor Brown agreed, although she thought it was more likely that the leak caused the infection of the haematoma. Dr Byrnes agreed that the leak probably came first, and infected the haematoma. Dr Sethi agreed with Professor Brown and Dr Garett Smith. 7. In terms of the timing of the development of the leak and whether it was recognised diagnosed and treated in an appropriate way and at an appropriate time Mr Jenkinson said the following: "I think once you've got a leak they're really, really difficult to treat and that the sort of - the, the series of events afterwards is, you know, it's difficult to - surgeons will treat, treat patients differently. Some will be very aggressive. They'll go back in and do a proper washout. And some will be less aggressive and put a, a thin radiological drain in. But you have a, a common problem with chronic intrabdominal sepsis which is just really, really difficult to, to treat. But it, you know - the, the method of treatment in this - in this case, I don't think it can be criticised as, as negligent, once the leak has occurred." [114] 1. Dr Miller said it was debatable as to when the leak occurred, and that various CT scans demonstrated the leak, but there was sepsis and it was not demonstrated clinically until 27 August 2013. Ultimately, he believed that Dr Harrison recognised it as quickly as he could, and the measures he took, draining and antibiotics and attending to Katrina's nutrition, were all appropriate. Professor Morris agreed as did Dr Garett Smith and Professor Brown. Professor Brown emphasised that if you are looking for a leak and cannot find one it is appropriate to treat it as if there was a leak which is exactly what Professor Brown would have done and what Dr Harrison did. If instead it turned out to be an infected haematoma, the treatment was right for that as well. 2. In terms of treatment of the fistula, Mr Jenkinson acknowledged that these are complex. Dr Miller emphasised that whilst early on the fistula was managed appropriately, there came a time when it was becoming obvious that it was not going to close, and a definitive procedure should have been performed. That should have been November 2015 when Katrina was admitted to WWBH with abdominal pain and the chronic fistula was noted, that being 16 months after the surgery. It was obvious by then drainage, stenting and nutrition were not working. That would have been a big, infected area by then, a cavity in her abdomen subject to chronic inflammation, and so by then it was relatively clear that it was not going to close. 3. Dr Miller noted that the treatment at St George Hospital could not appropriately fix the fistula and the next consideration should have been definitive surgery, noting that it is an extremely risky procedure, but to continue on the way she was going was also very risky. 4. Professor Morris's evidence was to the effect that whilst Roux-en-Y was risky, he did not think waiting four years was reasonable for the definitive treatment of the fistula. He noted that the definitive treatment could have been in several different ways from covering the fistula (by a stent), draining the fistula internally, but more likely than not, the Roux-en-Y surgery. 5. Dr Garett Smith explained that it was important to acknowledge the protean nature of these leaks. Sometimes they are high-volume via the fistula and sometimes not. If it is a very low volume fistula, it may close spontaneously. It may be that you do not need any intervention. The practice Dr Harrison undertook of arranging percutaneous drainage of the little collections as they occurred, nutritional support and periodic radiological assessment were all appropriate. Fistula is difficult to manage and it is often many months before treatment is finally and successfully carried out. Dr Garett Smith also emphasised that a Roux-en-Y operation is a big undertaking with a real risk of significant complication: "…. So if I were a patient and I had a 50ml a day fistula and my surgeon was leaning on me to have a Roux-en-Y operation, I would maybe be saying let's just wait another month or two. I would, I would say that the other important aspect of the fistula management was the recruitment of colleagues. So we know that early on in the piece Dr Harrison contacted the surgeons at St George Hospital who are expert in management of this sleeve complication. And they at that time were happy to you know, a, a, conservative course of management was undertaken. And so they were involved in the decision-making with regards to ultimately the stent that they inserted. But at no time as far as I can gather was there any suggestion from the St George group, that, you know, we should get on and do a Roux-en-Y bypass. And there are other factors which would have made the Roux-en-Y bypass done earlier, a, a really fraught exercise. Because the patient developed pancreatitis. The patient, as a – as a matter of urgency had to have their gallstone disease addressed. Because the last thing you want is another episode of pancreatitis. So, racing in doing a Roux-en-Y gastroplasty – Roux-en-Y bypass, in the months after an attack of pancreatitis, the question of splenic vein thrombosis, a whole lot of very important factors that make taking a prudent and circumspect approach to definitive treatment the appropriate one." [115] 1. Professor Brown explained the situation further: "So, I agree with what all the experts have said so far. I guess just to put it in context, the reason we put drains in at the time of a leak is to create a fistula. So, a fistula is a good thing in a lot of ways because it means that the, the stuff that's escaping out of the hole in the stomach is coming to the surface and not collecting inside the abdominal cavity where it's at risk of getting infected or damaging other organs. So, in Ms Polsen's case, it seems like when those drains were in there initially, it felt - it seemed like it had healed up but then the tissue that it healed was obviously still fragile comparing to the other tissue and it reopened, and we see that unfortunately particularly after sleeve gastrectomy. It's a bit different to other operations we do or maybe not different I guess but different in that if I can explain the sleeve. When we make the little skinny tube of stomach, the outlet is, has got a muscle there that creates high pressure. So, it's just as if you had a garden hose and you put a hole in it, stuff would come out the side. If you put a patch on that hole, it would sort of keep your hose not leaking, but if you put a blockage downstream in your hose, then you'll blow the patch off. So, with the sleeve gastrectomy because that's - the stomach has this muscle that where at the exit of the stomach, it's a constantly high pressure system so it doesn't take much for an area that's already healed on the stomach to reopen because of that pressure and that's what makes managing sleeve leaks so unique and so difficult. So, I think in this instance, there, there was sort of an evidence of healing but then it reopened and then she had this trajectory. I concur with Dr Smith that this - back to 2013, we didn't have as many options then as we do now and we didn't know as much about sleeve leaks as we do now, and back then in our unit, we were using, we were using stents, but we found that we didn't have a lot of success with them. They kept moving and they had trouble with bleeding like Ms Polsen experienced. We tried just using drains and we tried some internal drains and we found all of them were sort of you know, equally comparable in their, in their ability to help the sleeve heal. But in, on average, most sleeves took, you know, many months, many months to heal and jumping in and doing a Roux-en-Y bypass in honesty, the longer you can wait the better because when you get in there, the tissue is - it's like - if you go in really early, it's like operating on blotting paper. If you can imagine trying to sow blotting paper, it just tears, and you can't get things to hold whereas if you - the longer you can wait, the more robust the scar tissue and the more opportunity there is to see where all your other organs are, where the important blood vessels are because things become more defined. In Ms Polsen's case, other reasons for wanting to wait longer would be because her albumin, so that building protein in your blood that helps you heal was very low for a long period of time. She also had a very big spleen and had big blood vessels as a result of the blood clot that was presumed to have occurred in her portal vein and splenic vein, and all of these make the option of a Roux-en-Y more dangerous and more likely to fail. So, it's sort of active watching and I feel it's pretty clear that the option of a Roux-en-Y was raised relatively early in this trajectory and it was always on the table, and it was an active decision that because a small amount was coming out and Ms Polsen - it wasn't causing Ms Polsen harm as such that it was appropriate to wait and hope that if they could build her up with her nutrition that it might in fact heal itself." [116] 1. Dr Sethi agreed with Professor Brown and Dr Garett Smith. 2. Dr Byrnes provided the following pragmatic information regarding Katrina's clinical condition when he saw her in early 2017: "Okay. So, I found that she's quite well nourished. Her life wasn't too bad at all in fact. She had a small fistula near the left costal margin which drained a ml or so every few days, and when I went back and thought about this, I thought that if I was Mrs Polsen, I'd call it quits. I wouldn't have further surgery. What I, what I'm experiencing is less than what I see in most of my patients with Crohn's disease. If I have surgery, I'd be running quite a high risk of morbidity and mortality particularly considering the previous things to have gone on in the abdominal cavity. So, I thought - that was my opinion at the time. If it had been me, I wouldn't have gone further." [117] 1. On the question of transfer to a tertiary bariatric unit, Mr Jenkinson said that this should have happened within three or four months of the fistula or leak having not healed because these really are complex problems and you need to get the patient into a position where they are nutritionally optimised for the definitive procedure, in this case a Roux-en-Y gastric bypass. Katrina as a young person would not want to have leakage from her skin and have to wear a bandage over something that is constantly draining, so she should have been transferred at around 3 to 6 months to a unit that deals with complex leaks. Dr Miller agreed, but the timing of her needing definitive surgery is late 2015. It would have been prudent to have a complicated patient like this sent to clinicians who you would call a "tertiary referral", so a unit such as Professor Brown's unit, noting that the definitive surgery is best performed by bariatric surgeons who sort out these tertiary problems. 2. Dr Miller added that once a fistula has gone on for over a year, there will be a chronically infected cavity that is not going to close, and it would have been better to optimise Katrina's nutrition by giving her nasojejunal feeding and consider taking the risk of operating, maybe not in optimal conditions. Dr Miller also offered the view that there would no doubt have been chronic inflammation because when the Roux-en-Y operation was carried out at four years two months post-surgery, the abdominal cavity was "just an absolute mess it was scarred, there were adhesions there was chronic infection organs that were all stuck together". The fistula was complex and it did not come straight out. His point was that if a leak goes on for periods of years, you do get this chronic infected cavity. No matter what the patient's nutrition is like the fistula is not going to close spontaneously. 3. Dr Mar Fan took the view that once the family were asking questions at the 12-month mark after surgery, this really is an indication that she should have been sent to somebody else for management. He also stated that there needs to be a formal request to take the patient over, rather than just a discussion about management. 4. Dr Garett Smith emphasised that Dr Harrison engaged with the St George surgeons very early on and kept them up to date with how Katrina was progressing so in light of that, there is not necessarily a requirement that Katrina be transferred physically to another unit if she is going to receive the same treatment as she would at the original hospital. The St George surgeons were in dialogue making sure they agreed on the treatment. Ultimately Katrina was transferred to St George Hospital for insertion of the stent, but was then transferred back and that reflects an acknowledgement that she could get the necessary treatment at WWBH. St George bariatric unit is a tertiary referral unit for bariatric complications. It was reasonable to wait to see if the fistula would close spontaneously and it is less likely to do that in the presence of protein malnutrition and there were some problems relating to compliance and adhering to a high protein diet. 5. Professor Brown outlined that the process with tertiary referral included that if there is a belief that things can be done in the local community before they come to the tertiary referral, they do try to make sure that happens and that seems to be what happened here given there was regular communication between Dr Harrison and the team at St George. She considered that there was evidence that there was good dialogue between Dr Harrison and the tertiary team at St George. Katrina being physically at St George was not essential for the whole of her journey. 6. Professor Brown outlined that once Katrina returned from St George Hospital at the end of 2014 after she had had the bleed with her stent, her albumin was very low and there was a very intensive nutritional program put in place that was delivered both through the dietician within Dr Harrison's practice as well as the WWBH to try and get the albumin up to the point where it be would be potentially safe to operate. There was also an enlarged spleen and enlarged vessels around the site where the Roux-en-Y bypass would have to occur. That imposes inherent risks, but it was hopeful that with the passage of time that also might improve. It was also legitimate to hope that if Katrina's malnutrition could be treated, the very low volume fistula that she had, might actually dry out. 7. Professor Brown explained that there was a lot of effort put into improving nutrition. The three things for a fistula to heal are nourishment, which makes the building blocks to heal, no infection, and no distal blockage. All of those three things appeared to be adequately addressed. Professor Brown disagreed that there were signs of chronic infection at that stage. By January 2015 it was probably indicated that the fistula would not close spontaneously, but regardless, Katrina's nutrition was in a very parlous state and not at a point where Professor Brown would have considered any sort of open operation such as a Roux-en-Y gastric bypass. It would not have been appropriate to keep Katrina in hospital to nourish her which requires a tube put down into the stomach. It is actually better if people take nourishment for themselves, for their overall well-being and mental health and much better to be in the community with family and friends. It would be rare to keep someone in hospital for the purpose of nutrition in 2013 in Australia. 8. Dr Sethi and Dr Byrnes agreed, Dr Sethi noting that the records indicated that Dr Harrison regularly consulted with colleagues at WWBH and that he consulted widely and early so there was no requirement for her to be transferred to another bariatric unit. 9. Mr Jenkinson said that Katrina should have been referred elsewhere given the complexity of the problem at about six months and that you would expect she would be operated on within about a year. To wait three years until she found her own way to an expert unit seems unsatisfactory. In giving answers about this subject matter, Mr Jenkinson noted that his opinion would be six months but obviously there are different opinions, and if you asked 10 different doctors what would be their timescale, there would be different opinions. 10. Dr Miller provided important context regarding Katrina's clinical state when he saw her in March 2016: "Yes, and she, she was fading away. She was in a lot of pain, a lot of discomfort. Every time she ate, food came out of her left costal margin. And it was my impression that this lady, if she was left much longer, she may not survive. And I think I wrote as much in one of my reports. And the other thing I would like to emphasise is that I pulled that, that time of the 19th of the 11th 2015 out because all those things that we mentioned, the stenting and the draining and all that, and trying to improve the nutrition to get the fistula closed had all been tried. And I thought the time had come when I saw her, and I actually put that recommendation in my opinion I think, that she should have a total gastrectomy. And I think it's vindicated in that following that 19th of the 11th 2015, I've only been counting through roughly, but there's over 40 admissions to the hospital with pain, sepsis, and she just gets sort of band-aid therapy where they give her antibiotics and occasionally a drain goes in, fluids are given, and she's discharged home. And the cycle just continues; she keeps coming back, until I believe she went to Dr Le Page under her own steam to get an opinion. And I think she was presented at the multidisciplinary team, that's the MDT that Dr Jenkinson was talking about at Concord Hospital. And the doctors, who I know a few of them, I respect them, a bit like Dr Greg Fork(?), they all pointed out that this was going to be a hazardous procedure which may fail. But they didn't feel that there was any other alternative, and he went ahead with the procedure. Fortunately for her it, it worked out." [118] 1. Professor Morris and Dr Mar Fan were not performing bariatric surgery in 2013 and indicated that they would defer to their bariatric surgical colleagues, but still thought it common sense that if nothing was healed up by 12 months, you would seriously want to consider having another option. 2. Professor Brown was of the view that Katrina should not have been offered a Roux-en-Y in that period. It is predictably a very difficult operation, probably outside the scope of what the facilities at WWBH would provide, but Dr Harrison should have been and was thinking about it as an option. It is fairly clear that he was from an early stage, and he collaborated with a service that was capable of doing it. Professor Brown said she would have been reluctant to operate on Katrina at the end of 2015 because she still remained malnourished, and the fistula was low volume. She had not seen Dr Le Page's operation report but would accept that it was a complex procedure because they usually are and that is why you would push it out as long as you can. The longer you leave things and the better nourished the patient is, the more well-defined the fistula track will become and whilst the operation is never easy, it just makes it slightly easier to "find your way". Professor Brown also noted that she would have expected, given St George's treatment of Katrina in late 2014 and the need to remove the stent they had put in, that St George would have maintained contact with the patient. 3. Dr Garett Smith agreed with Professor Brown. He did not think it was appropriate to undertake a Roux-en-Y in the period 2013 to 2015. Obviously it was discussed with the surgeons at St George, but given all the intercurrent problems with pancreatitis, the splenic vein thrombosis, the borderline nutritional status, to do it in that time period would have been fraught and could have been associated with a catastrophic outcome. Waiting as it happened another couple of years before the patient underwent the bypass was probably for the best. Dr Garett Smith also emphasised the point that whilst talking about theoretical timelines for surgery and "ideal" timelines, one thing that can change all of that is a complication such as pancreatitis, as occurred here, so current difficulties must be taken into account when putting a timeline on the ideal time for intervention. 4. Dr Sethi added that as a gastroenterologist and someone who does not perform Roux-en-Y, he agreed with Professor Brown and Dr Garett Smith that offering that procedure would have been hazardous in a patient who is malnourished and septic, and it would likely have been quite a fraught operation to perform. Conclusions as to what the clinical and expert evidence establishes as to Katrina's clinical course 1. My analysis of the lay and expert evidence has led me to the following conclusions. 2. First, it cannot be established how much alcohol Katrina was drinking in any given time period. Katrina gave inconsistent accounts to various medical practitioners as to what her alcohol intake was. I have concluded that she is an unreliable historian. The family's history about this was also in my view unreliable. 3. I have concluded that by July 2013 Katrina had fatty liver disease based on her weight and years of unhealthy eating and this was partly contributed to by alcohol consumption. She did not have cirrhosis of the liver but instead had reversible liver disease. She had high GGT levels which were multifactorial. They remained high, even after alcohol ceased and she was in hospital, suggesting that the high GGT was not caused by alcohol dependency, as explained by Dr Byrnes. 4. Katrina was being treated for debilitating symptoms of rheumatoid arthritis prior to July 2013 and regularly took heavy painkillers to manage that condition prior to July 2013. 5. The information provided to Katrina by Dr Harrison, the dietician, and the bariatric surgery nurse was comprehensive and appropriate and thorough. I accept their accounts as to what was discussed and provided. I reject Katrina's assertion that she was not advised about the risks of the procedure and in particular the risk of gastric leak. 6. Katrina was appropriately warned of the risks but was determined to have the surgery despite the risks, because she saw how well it had worked out for her friend Josie. I have concluded that Katrina would have said anything that she thought was helpful to ensure that she was given the surgery she wanted. 7. Dr Harrison's surgical approach and technique was appropriate and there was no unintended stricture created. Katrina was an appropriate candidate for the surgery and there was nothing in her history, either in terms of her intake of alcohol or her psychological history that meant that she was an inappropriate candidate for the surgery. To the extent that any of the expert opinions suggested that she was an inappropriate candidate for surgery, or that surgery should have been delayed for "psychological or psychiatric assessment", I reject their views. 8. There was post-surgical bleeding which stopped. On 25 July 2013 when discharged, Katrina was stable and it was appropriate to discharge her. 9. A haematoma formed which was appropriately treated. Gastric leak was a known complication of the procedure, and a leak was found and appropriately treated. 10. It was appropriate that the leak be treated conservatively as there was a prospect of it healing without intervention. Surgery would have been fraught given the recent operation and it was acceptable to continue with a wait and see approach. 11. Unfortunately, Katrina was not compliant with the requirements of eating nutritious food. She continued to avoid appointments with the dietician and did not follow important, clear dietetic instructions. This caused problems with malnutrition which continued to plague her post-operative course the whole time she was under the care of Dr Harrison. She also became unwell with sepsis, a known, inherent and forewarned risk of the procedure. 12. Katrina needed and was given a cholecystectomy in November 2013. That was a predicted and inherent risk of the gastric sleeve surgery. 13. Dr Harrison continued to consult with other colleagues to discuss Katrina's complicated case and for them to provide input and assistance. I accept that there were regular discussions as to the best way to manage Katrina, including discussions with Katrina and family members. 14. In August 2014 Katrina was referred to Dr Jorgenson at St George Hospital for a second opinion. His approach, as set out in par [153] of this judgment was to attempt to manage her endoscopically by insertion of a stent. 15. In September 2014, under the joint management of Dr Jorgenson and Professor Craig, Katrina remained in St George Hospital for a month. A stent was placed. 16. Without in any way being critical of that course, I accept that the use of stents was controversial in the period 2013 and 2014. When the stent was used in treatment provided at St George Hospital it failed within a short period, and Katrina had to be readmitted for the stent to be removed because it caused gastric erosion. 17. This is an illustration of first, the fact that both tertiary referral and tertiary treatment did in fact occur, and second, the complexity and difficulties entailed in the management of Katrina's complications. 18. In February 2015 Katrina's solicitors wrote to Dr Harrison requesting his clinical records. This was a step which had the potential to interfere with the therapeutic relationship but in March 2015 this was discussed, and contemporaneous records reflect that Katrina stated that she was happy to continue treatment with Dr Harrison and did not require referral elsewhere for surgery at that time. Referral to St George Hospital had not helped in solving any of the issues. 19. In April 2015 Dr Harrison's notes indicate that Katrina reported that she was feeling improved, there was no discharge from the wound, and she was feeling the wound had closed over. During a telephone check-in in May 2015 Katrina indicated that she remained well other than the flu that was being treated by her GP and she would ring if any concerns. 20. She became unwell again in August 2015 and presented to WWBH with a discharging sinus and fistula site under her left breast. 21. In his October 2015 report to Dr Mark, Katrina's GP, Dr Harrison noted there had been a "good discussion" with Katrina about her current condition and that surgery would be "very hazardous indeed" and if she could remain in her present situation, it was the "best outcome that we can expect". 22. It was evident that any decision-making around surgical intervention was fraught because of the risks associated with any such surgery as well as malnutrition issues due to Katrina's failure to follow dietetic advice, and her becoming unwell on occasions with sepsis. 23. There were presentations to WWBH in the first half of 2016 and discharge summaries in respect of each admission were copied to GP Dr Mark. 24. Dr Mark's records indicate Katrina continued to consult him, and Dr Mark referred her to a number of alternative surgeons for ongoing care in July, August and October 2016. The evidence is unclear as to whether and when she consulted any of those surgeons, but there is anecdotal evidence that suggested that Katrina was looking for a surgeon who would treat her in the public system. 25. From March 2016 Katrina was attending medico-legal consultations with experts retained by her lawyers. 26. In July 2016 negligence proceedings were commenced against Dr Harrison and the WWBH in the Wagga District Court. 27. The August 2017 clinical note of Concord Hospital sets out the very serious risks of the potential "definitive surgery", which included death. That surgery was ultimately performed in September 2017 and took eight hours to complete. Fortunately, the surgery had a good result although Katrina was left with ongoing pain and opioid addiction. She continues to fail to engage with any psychologist or psychiatrist to address her psychological or psychiatric sequelae, despite this having been recommended to her on multiple occasions. The statutory framework and its application to the liability of Dr Harrison 1. Part 1A of the Act contains the provisions addressing negligence. Section 5O appears in Division 6 of Part 1A and is headed Professional Negligence: 5O Standard of care for professionals (1) A person practising a profession (a professional) does not incur a liability in negligence arising from the provision of a professional service if it is established that the professional acted in a manner that (at the time the service was provided) was widely accepted in Australia by peer professional opinion as competent professional practice. (2) However, peer professional opinion cannot be relied on for the purposes of this section if the court considers that the opinion is irrational. (3) The fact that there are differing peer professional opinions widely accepted in Australia concerning a matter does not prevent any one or more (or all) of those opinions being relied on for the purposes of this section. (4) Peer professional opinion does not have to be universally accepted to be considered widely accepted. 1. I agree with and adopt the approach outlined by Brereton JA (with whom White and Meagher JJA agreed) in Dean v Pope [2022] NSWCA 260 at [273], (following Basten JA in Sparks v Hobson; Gray v Hobson (2018) 361 ALR 115; [2018] NSWCA 29 ("Sparks v Hobson") at [17] and [18]) regarding the question of when the s 5O analysis should be invoked and why it should be dispositive: "[273] … as Basten JA explained in Sparks v Hobson, s 5O once invoked effectively provides the applicable standard of care: "[17] Despite the common acceptance of the provision as a "defence", that characterisation gives rise to difficulty. To be a defence carries the implication that the plaintiff must establish breach according to the general requirements of s 5B of the Civil Liability Act, following which the practitioner bears the burden of establishing that his or her conduct amounted to "competent professional practice" in the terms of s 5O(1). The heading of the section ("Standard of care for professionals") indicates its purpose. Although the heading is not part of the Act, it may be taken into account as extrinsic material in construing the provision, in accordance with s 34(1) of the Interpretation Act. In any event, it is tolerably clear that the provision sets a standard. However, if the standard is met, it follows that the conduct was not negligent. [18] Accordingly, once s 5O is invoked, arguably the general exercise required by s 5B becomes otiose. There can only be one standard against which to judge the conduct of a professional defendant, although that standard may depend upon the resolution of conflicting evidence called by the plaintiff and the defendant. It is only if one takes the plaintiff's evidence in isolation that a two-stage process, involving the assessment of the plaintiff's claim followed by assessment of an affirmative defence, will arise. However, in a practical sense, that is not how the dispute should be determined. Rather, a judgment will be given based on all of the evidence. Nor is the exercise helpfully clarified by speaking of shifting burdens of proof. The question for the trial judge is ultimately whether the plaintiff has established that the conduct of the defendant failed to comply with the relevant standard of care." 1. Such an approach is consistent with the textual analysis conducted by Leeming JA (with whom Ward P and Basten JA relevantly agreed) in Paul v Cooke (2013) 85 NSWLR 167; [2013] NSWCA 311 at [41]: "[41] Thus the effect of s 5A is that Part 1A of the Act applies uniformly to a class of claims for damage, irrespective of how the cause of action has been formulated, so long as the damage results from a failure to exercise reasonable care and skill. The effect of sections like ss 5I, 5L and 5O is to provide a complete answer to any claim falling within Part 1A. In short, Part 1A elides the traditional categorisation of causes of action and instead imposes uniform rules and principles wherever there is a claim for harm resulting from a failure to exercise reasonable care and skill. That policy of unification was anticipated by Justice Ipp, writing extrajudicially of the divergent tests of remoteness, in "Problems and Progress in Remoteness of Damage" in Paul Finn (ed), Essays on Damages (1992) Law Book Company Ltd, 14 at 29-41. It would seem to follow that no longer is there a different test for, say, remoteness of damage caused by a failure to exercise reasonable care and skill, irrespective of whether the cause of action is in tort or contract (cf Astley v Austrust Ltd at [47] and [76]-[80]), and the same may be true for statutory causes of action (there may also be questions of construction and further analysis will be required in the case of federal statutes). That in turn demonstrates that care must be taken in evaluating statements in the extrinsic materials that the Act was not intended to change the law. In large measure, such statements at best reflect an opinion that it was not intended to change the substantive law of the tort of negligence. There is no doubt that the Act changed the law insofar as principles primarily developed in the area of negligence have been imposed upon other causes of action which involve a failure to exercise reasonable care and skill. Further, although little turns on it for present purposes, to the extent that it is directed to admissibility (s 5D(3)(b)), or onus (s 5E), or the ways in which courts are to determine issues (notably, s 5D(2) and s 5D(4)), plainly enough the Act effects a substantive change, aspects of which have been described by Professor Barbara McDonald: "The impact of the Civil Liability legislation on fundamental policies and principles of the common law of negligence" (2006) 14 Torts Law Journal 268. In relation to s 5D, twice now it has been said that whether or not s 5D will produce a different result from common law has not been decided: Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420 at [44]; Strong v Woolworths Ltd [2012] HCA 5; (2012) 246 CLR 182 at [19] and [28]." 1. In South Western Sydney Local Health District v Gould (2019) 97 NSWLR 513; [2018] NSWCA 69, Leeming JA (with whom Basten and Meagher JJA agreed) further articulated the rationale behind why the proper approach is that s 5O provides the standard and that analysis under s 5B is consequently otiose, and diverting analysis to s 5B, instead of ending the inquiry with s 5O, can lead to error: "[126] To similar effect, Simpson JA said at [329]: "[Section] 5O, like s 5I, provides a complete answer to a claim under Pt 1 A of the CLA. It is in that sense that the section operates as a defence. For that reason, when it is pleaded, it is convenient to deal with it first." [127] The force of those observations is readily demonstrated. (1) First, it is to be recalled that s 5B (like many other provisions in Part 1A of the statute) is a gateway provision, expressed in terms of a necessary but not sufficient condition for a finding of "negligence" (ie, a failure to exercise reasonable care and skill). Section 5O, in contrast, in the circumstances in which it applies, means that the defendant "is not liable". That tends to support a construction that when the preconditions to s 5O have been made out, then it supplants the analysis otherwise required by s 5B. (2) Secondly, there is no sound reason first to find whether a professional who has been alleged to have been negligent breached his or her duty of care by reference to what has been held in Rogers v Whitaker and Naxakis v Western General Hospital (1999) 197 CLR 269; [1999] HCA 22, only then to determine, in accordance with s 5O, that the erstwhile breach of duty does not incur any tortious liability. There is no reason to add to the complexity of trials, so as to require the evaluation of the professional's conduct against not one but two separate standards. (3) Thirdly, there is no good reason for the potential reputational damage which may be suffered by a finding of breach of the test at common law to be incurred when, if s 5O applies, statute has said that "the professional does not incur a liability in negligence". (4) Fourthly, that approach is wholly consistent with the terms of reference to which the Ipp Committee was subject. As noted above, those terms required that "in conducting this inquiry, the Panel must … (d) develop and evaluate options for a requirement that the standard of care in professional negligence matters (including medical negligence) accords with the generally accepted practice of the relevant profession at the time of the negligent act or omission". Section 5O reflected that term of reference, and I see no reason why it should not be construed accordingly, in accordance with s 34 of the Interpretation Act 1987 (NSW). Its heading is, after all, "Standard of care for professionals". [128] It is true that on occasion there has been separate treatment of breach in accordance first with ss 5B and 5C and then with s 5O (see for example Howe v Fischer [2014] NSWCA 286 at [73]-[78] and Melchior v Sydney Adventist Hospital Ltd [2008] NSWSC 1282 at [139]-[145], both cases where breach was not found to have been established under s 5B). But the weight of authority proceeds on the basis as stated in the Ipp Report, assimilating the standard of care to that stated by s 5O once the preconditions of the section have been satisfied. That is the gravamen of the empirical research presented by C Mah, "A critical evaluation of the Professional Practice Defence in the Civil Liability Acts" (2014) 37(2) University of Western Australia Law Review 74. [129] In the present case, the separate consideration under ss 5B and 5C, followed by s 5O, appears to have led to error. The primary judge rejected as irrational evidence which was contrary to the standard determined in accordance with s 5B. But the effect of s 5O, in a case where its preconditions are made out, is to replace the standard of care against which breach is assessed. There is no occasion to compare the s 5O standard with that which would be considered in the application of s 5B in a case when the preconditions of s 5O have been made out." 1. The pre-requisites of an opinion addressing s 5O is set out with clarity by Basten JA in Sparks v Hobson at [88] to [89]: "[88] In summary, the evidence relied upon by Dr Sparks fell short of establishing a standard, widely accepted in Australia, of competent professional practice. A bald statement by a practitioner, however well qualified, without reference to the specific factors giving rise to a claim of negligence may well not persuade the court that there is a relevant standard identified in the evidence. Further, a bald claim that the practice is "widely accepted" as falling within the scope of competent professional practice may not be accepted by the court as evidence of that fact. To persuade the court that the terms of the section have been satisfied one would generally expect evidence which stated the basis of the standard. Further, the evidence is more likely to be persuasive if it seeks to grapple with possible conflicting views in a reasoned manner. [89] That is not to say that any of the evidence was "irrational". Rather, the test of irrationality applies to the opinion as to competent professional practice. The Court must always be satisfied as to two antecedent questions, namely that the opinion addresses the conduct as found at the trial and that the evidence supports the view that the expressed opinion was, at the time of the conduct, "widely accepted in Australia"." (Emphasis added). 1. The application of s 5O is qualified by s 5P which provides: 5P Division does not apply to duty to warn of risk This Division does not apply to liability arising in connection with the giving of (or the failure to give) a warning, advice or other information in respect of the risk of death of or injury to a person associated with the provision by a professional of a professional service. 1. Division 6 comprises ss 5O and 5P. Given the failure to warn allegations made in the Further Amended Statement of Claim at 17(c) and (d), a separate analysis of those allegations is required. Whilst expressed in terms of "failure to advise" the gravamen of the allegation is a failure to warn of the risks of the procedure and failure to advise regarding alternate procedures. I interpolate here that none of the expert opinions tendered in the case supports these allegations and I have concluded that Katrina was very thoroughly warned and advised and was absolutely determined to have the procedure. 2. The correct approach to 5P is set out by Leeming JA in Paul v Cooke at [42]: "(b) Warnings are treated differently [42] Secondly, claims involving breach of a duty to use reasonable care and skill to give a warning are given special treatment by the Act. The provisions may be summarised as follows. There is no duty to warn of an "obvious risk", absent a request from the plaintiff or a statutory obligation or the defendant being a professional and the risk being of death or personal injury: s 5H. There is no duty to a person who engages in a "recreational activity" if there had first been a "risk warning": s 5M. There is no liability at all for an "inherent risk", save that liability is not excluded in connection with a duty to warn of such a risk: s 5I. And although a professional will be held to have satisfied a duty if he or she acted in a manner which was widely accepted by peer professional opinion by reason of s 5O, that does not apply to liability arising in connection with the failure to give a warning, advice or other information in respect of the risk of death or personal injury: s 5P." 1. For the sake of completeness I make reference to the other parts of the Act referred to in submissions. Section 5B provides: 5B General principles (1) A person is not negligent in failing to take precautions against a risk of harm unless— (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things)— (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm. 1. Section 5C provides: 5C Other principles In proceedings relating to liability for negligence— (a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and (b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and (c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk. 1. Section 5D appears in Division 3 entitled "Causation" and provides: 5D General principles (1) A determination that negligence caused particular harm comprises the following elements— (a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability). (2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. (3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent— (a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and (b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest. (4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. 1. Section 5E provided for the onus of proof: 5E Onus of proof In proceedings relating to liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation. 1. Section 5I has been pleaded by Dr Harrison as a complete answer to the claim. The relevance was developed in submissions to refer to the fact that all of Katrina's sequelae were in effect inherent risks of the procedure that unfolded over time: 5I No liability for materialisation of inherent risk A person is not liable in negligence for harm suffered by another person as a result of the materialisation of an inherent risk. An inherent risk is a risk of something occurring that cannot be avoided by the exercise of reasonable care and skill. This section does not operate to exclude liability in connection with a duty to warn of a risk. 1. In Paul v Cooke, Leeming JA with Ward JA (as her Honour then was) agreeing, said s 5I ought to be considered first as it operates to "exclude liability": "[53] If a case can conveniently be decided under s 5I, it should be. The language of s 5I reflects the elements of liability which the plaintiff needs to establish. That is why it is framed in terms of the broader causal language of "as a result of", reflecting the language of s 5A(1) rather than of s 5D(1), and why its opening words are "A person is not liable in negligence". That is reinforced by s 5I(3), which carves out from the operation of the section "to exclude liability" a class of liability connected with a duty to warn. Section 5I does not deny s 5D causation; rather it answers the implicit question posed by the "claim" contemplated by s 5A(1) negatively: the defendant is not liable for that claim for damages for harm resulting from negligence. [54] The reasons for my view that s 5I should be applied if it is available are as follows. First, once s 5I is engaged, there is no liability for a failure to exercise reasonable care and skill. The entire inquiry under Part 1A comes to an end." 1. Arguably s 5I does not need to be considered where the proceedings can be disposed of by the application of s 5O, but to the extent necessary, I will separately evaluate below the parties' submissions and my conclusions regarding the role of s 5I in the circumstances of this case. Submissions (i) General comments 1. Neither the defendant's nor the plaintiff's written or oral submissions approached the case on the basis prescribed by the Court of Appeal in Sparkes v Hobson, Paul v Cooke, South Western Sydney Local Health District v Gould and Dean v Pope, that the standard of care in professional negligence matters has been assimilated into the test stated in s 5O of the Act. 2. They are thus of limited assistance for the primary task the Court has to complete. There are however some discrete matters, particularly in the plaintiff's submissions, that I need to specifically address. (ii) Plaintiff's submissions 1. The plaintiff's written submissions filed on 30 September 2022 did not address the role or requirements of s 5O at all on the basis that s 5O was insufficiently pleaded in the Defence filed. That submission is misplaced, and I reject it. 2. The plaintiff's written submissions fail to engage at all with the inquiry the Court has to make because they do not adequately acknowledge and deal with the expert evidence relied upon by the defendant that is supportive of the defendant's management, other than to manufacture a conspiracy theory that the defendant's experts were all "misled" by the entry in Dr Harrison's medical records regarding what he wrote to Dr Bartusek GP on 28 May 2013 (and what he told the Court), was his understanding as to what Katrina had told him regarding the reduction in her alcohol intake. 3. I reject the submission that the experts were misled. I have accepted as true Dr Harrison's evidence on this issue. In any event, the joint liability conclave and the concurrent evidence and the synergy of those engagements between the experts ensured that the mixed assumptions were well and truly canvassed by the expert evidence. 4. The plaintiff's written submissions stated that it has "never been the plaintiff's case that she would never have been a proper candidate for the surgery" but that given the surgery was non-urgent and elective, "at all material times, and specifically as of 28 May 2013, when Katrina saw Dr Harrison, she was not a suitable candidate for the surgery". This is presumably to address the accepted reality that the plaintiff both needed and wanted the surgery to address her morbid obesity. 5. A selective and partial analysis of the evidence regarding Katrina's alcohol consumption and the reports she gave of that to health care professionals does little more than highlight the problems she created for her treatment course. The submission that because the history given was mixed, Dr Harrison should have "investigated further" does nothing but beg the question. The defendant's experts made it clear that even if Katrina was drinking 750mls of wine a night, the literature is inconclusive as to whether that causes healing problems, and it did not make her an unsuitable candidate for the surgery she very clearly required. 6. The case pleaded in contract has no role because the Civil Liability Act provides that any liability for the plaintiff's negligence claim must to be determined under Part 1A(1) of the Act: 5A Application of Part (1) This Part applies to any claim for damages for harm resulting from negligence, regardless of whether the claim is brought in tort, in contract, under statute or otherwise. …. 1. Accordingly, the pleading of breach of contract does not divert the necessary inquiry away from s 5O of the Act, nor does it provide any alternative basis for liability. 2. The analysis in the plaintiff's written submissions under ss 5B, 5C and 5D of the Act is otiose. Selective and limited quotes, reinterpreting some of the evidence of Dr Harrison and Dr Williams and some of the experts, does not assist in the necessary evaluation of the defendant's decision-making and management of the emerging clinical course. 3. There was a submission made that the defendant had an obligation to call evidence from the staff at St George Hospital, specifically Dr Talbot, Dr Jorgenson and Professor Craig, and that the Court should draw an inference that evidence from those doctors would not have assisted the defendant. 4. I do not accept that submission. No evidence from those doctors was identified as essential to evaluation of the defendant's treatment of Katrina, which is the subject matter of the negligence case. It could equally be argued that the plaintiff had an obligation to call evidence from those institutions to the effect that they were never asked by Dr Harrison to participate in discussions about the care of the plaintiff. No such submission has been made. I consider the absence of evidence from those individuals to be neutral. 5. The submission that the Court should assume that Dr Harrison was being untruthful in asserting that he had conversations with doctors at St George has no merit. I have accepted Dr Harrison's evidence as truthful. If it were to be seriously disputed, it would have been available to the plaintiff's legal representatives to call those doctors (who were after all the plaintiff's treating doctors and therefore in her "camp") to give evidence. That did not occur. Also, the clinical records of Dr Harrison indicate that there was discussion and exchange of information, including a detailed letter from Dr Jorgenson in September 2014 in which Dr Jorgenson outlined (reproduced at [153]) the complexities of Katrina's presentation. 6. There was a submission made that Dr Sethi's evidence should be ignored because it is hearsay and excluded by s 76 of the Evidence Act because his opinions were not based on specialised knowledge based on Dr Sethi's training, study and experience. I reject that submission. First of all, no objection was taken prior to September 2022. Second, Dr Sethi is a gastroenterologist and hepatologist who on my assessment confined his evidence to matters relevant to his specialty. 7. A submission was made that Dr Harrison's colleague Dr Williams denied in his evidence that Dr Harrison ever discussed with him sending Katrina elsewhere for definitive surgery. This is a misinterpretation of Dr Williams's evidence. Dr Williams was addressing an allegation by Katrina that there was a conversation at a particular identified time in which Dr Williams insisted to Dr Harrison that Katrina should be sent for definitive surgery and that Dr Harrison disagreed with that proposal. The effect of Dr Williams's evidence was that it was discussed as an option between them on a number of occasions, but the question was the timing. 8. The plaintiff's written submissions in reply asserted that Katrina was sufficiently stable between March 2015 and May 2015 to have the Roux-en-Y. This was not the case pleaded, but in any event, this must be viewed against the fact that she reported that the wound had "closed over" and there was no discharge (16 April 2015) and that she was well, and that the month before, on 19 March 2015 in consultation with Dr Harrison, she had stated that she was happy for Dr Harrison to continue her care and did not want surgery. 9. The submission was made that Katrina was "left to find her own way to Dr Le Page" and that this was unsatisfactory, an opinion voiced by Mr Jenkinson, one of the plaintiff's experts. However, there is more to the story of the unfolding clinical course. By February 2015 Katrina had retained solicitors to act for her and they had requested Dr Harrison's records. He still continued to treat her, despite this. By July 2016, Dr Harrison had been named as a defendant in professional negligence proceedings. It could hardly be said that it was appropriate for him to exercise some kind of overarching care and referral process in those circumstances once he was sued. Katrina did not ask to consult him after the end of 2015 and other than apparently in February 2016 at WWBH, where Dr Harrison was on duty and attended to her, he did not see her after that date. 10. Katrina remained in the care of her GP Dr Mark who in July, August and October 2016 prepared referral letters to three separate surgeons for "opinion and management of the fistula post gastric sleeve". What Katrina did about those referrals was not covered in her evidence. There is a gap in the evidence, but what the evidence tendered shows is that Katrina and her GP knew she needed ongoing management, yet she appears to have delayed acting on this need and the referrals provided by her GP for reasons which remain unexplained. 11. It was baldly submitted that there was "no evidence" called by the defendant that would support an inherent risk defence under s 5I of the Act. This is simply wrong, and is a submission that completely ignores the large tracts of evidence presented, and in particular the RACS document attached to this judgment, which sets out the many risks of the gastric sleeve procedure, many of which unfortunately befell Katrina. Given that all the sequelae flowed from the gastric leak and its complications, I do not accept the plaintiff's submission on s 5I. Obviously the "inherent risk" includes the fact of her selection to undergo the procedure. (iii) Defendant's submissions 1. The defendant's written submissions filed on 14 October 2022 described the plaintiff's case as one which "attempts to render the manifestation of anticipated surgical complications as negligence". This is an apt description. 2. It was submitted that the plaintiff's case as to deficiencies in post-surgical care is an unfair retrospective construction. The way the Court should assess the matter is by analysing Dr Harrison's care of the plaintiff in light of the changing circumstances, and when that is considered, the correct conclusion is that he acted reasonably, and that is all the law can require of him. The expert evidence establishes that under s 5O, he should not incur a liability in negligence. 3. Focusing on the Second Further Amended Statement of Claim, the allegation as to by when Dr Harrison should have performed, (or arranged performance of), gastric bypass surgery was pleaded to be 12 November 2013 (pars 15(s) and 17(s)). It was submitted that the Court should not countenance some shift in that period to an allegation that definitive surgery should have been undertaken in February 2015. This was not the case pleaded. 4. Whilst I understand and acknowledge the defendant's frustration about the "shifting sands" of the plaintiff's case, the expert conclave and concurrent evidence cannot be ignored and I have considered all of the evidence given by the experts as to when and why the "definitive surgery" should have been offered and completed. 5. The defendant submitted that Katrina was a particularly unimpressive witness who did not appear to be genuinely engaged in the task of giving truthful evidence, but tried to advance a narrative, feigning ignorance and professing absence of recall when trapped by questioning. Her evidence was contradictory. At one stage Katrina described the process of giving evidence as "bullshit." She deliberately downplayed pre-existing difficulties with her rheumatoid arthritis and other pre-surgery health problems. She was untruthful and at best unreliable. 6. I accept the submission that Katrina was unimpressive and unreliable. As to whether she was deliberately untruthful, it was difficult to tell. I do accept that there were many inconsistencies in what she said both in Court and during her treatment course. 7. In terms of s 5I of the Act, the defendant submitted that the anticipated complications and inherent risks were not created by Dr Harrison. The complication of gastric leak and all of its sequelae comprise inherent risk for the purposes of s 5I and could not have been avoided by the exercise by Dr Harrison of reasonable care and skill. 8. This submission accurately reflects the evidence and is accepted. In respect of this argument, the evidence of Mr Jenkinson, Professor Brown and Dr Garett Smith provides essential background to this analysis. Once there was a gastric leak, management was predictably difficult and the remedies, complex and fraught. 9. I have concluded that an inherent risk in the procedure is a complicated post-surgical course where there is room for differences of opinion as to how and when to provide "definitive surgery", and that the timing of it is very dependent on an analysis of risks versus benefits and the clinical condition of the patient at the time the procedure is being considered. Did Dr Harrison act in a manner that (at the time his professional service was provided) was widely accepted in Australia by peer professional opinion as competent professional practice? 1. The short answer is yes. It cannot be suggested that the combined force of opinion of Professor Brown and Dr Garett Smith as bariatric surgeons practicing in 2013 in Australia, and the content and nature of their evidence is anything short of representing the standard applying to competent professional practice in 2013 that was widely accepted in Australia. Their opinions are entirely supportive of Dr Harrison's management. That position was further supported by the analysis and evaluation of the clinical course undertaken by Dr Harrison, by the experience and expertise of Dr Byrnes and Dr Sethi from the point of view of a gastroenterologist. Has Ms Polsen established that Dr Harrison was negligent under ss 5B and 5C of the Civil Liability Act? 1. Given the approach of the Court of Appeal in Paul v Cooke, Sparks v Hobson, Dean v Pope and South Western Sydney Local Health District v Gould there is no need to consider this question. Has Ms Polsen proved causation as required by s 5D of the Civil Liability Act? 1. No - but there is no need to consider that question. Has Dr Harrison established that s 5I – inherent risk – applies? 1. Yes - the RACS document annexed to this judgment demonstrates resoundingly that all of the complications that befell Katrina were well-known risks and sequelae of the gastric sleeve procedure, all of which she was comprehensively warned before undergoing the procedure. 2. The practicing bariatric surgeons Professor Brown, Dr Garett Smith, and to an extent Mr Jenkinson explained in their evidence why the complicated and stormy post-operative course Katrina unfortunately followed was within the risk(s) inherent in the procedure. In end result Mr Jenkinson's criticism was limited to patient selection without psychological counselling for alcohol intake and delaying the surgery, rather than any identified failures in the treatment course which he acknowledged on multiple occasions were known risks that were difficult to manage, and would have benefited from referral to a "more specialised centre", on the assumption it seems, that the centre would have performed particular surgery in a defined timeframe. Conclusions and decision 1. It is ordinarily desirable to assess damages in case my liability findings are found to be wrong. However, in this case there are so many variables, dependent upon a multitude of potential findings, this task would require repeated assessments of damages on so many different hypotheses that such an exercise is not justified. If error is found in my findings regarding liability, and where that error lies, will dictate the timing and parameters of any damages assessment. 2. Significantly, there was a dearth of evidence that would allow adequate assessment of the probable recovery from and clinical course of any of the proposed interventions if they were undertaken at the times it is alleged they should have been done. 3. One of the proposed interventions, stent insertion to manage the gastric leak, was carried out by Dr Jorgenson on 25 September 2014 but the procedure caused gastric erosion, with Katrina presenting to hospital vomiting blood some nine weeks later. The stent had to be removed and was not reattempted. This clinical course demonstrates why, as Professor Brown and Dr Garett Smith made clear, stenting at that time was generally considered to be "controversial", and treatment of gastric leak is complex. 4. The supposedly "definitive surgery", gastric bypass, also known as Roux-en-Y, entailed very significant risks including death, abandonment and, somewhat ironically, staple line leak. 5. It is not reasonable nor appropriate to assume that because four years after the leak was first noted, when a surgical team determined Katrina to be sufficiently stable to withstand Roux-en-Y surgery - involving as it did eight hours of surgery and significant risks of mortality and morbidity - if that surgery had been attempted in November 2013, as is asserted by Katrina it should have been, (or even in 2014 or 2015), the outcome would have been resolution of some of her problems to the level that was accomplished in 2017. There simply is no evidence that would form any acceptable basis for that conclusion. 6. There is a terminal circularity inherent in the plaintiff's case that she should not have had the surgery at the time she did because of her excessive alcohol consumption. First, I have concluded that Katrina gave inconsistent and unreliable accounts to everyone including her lawyers about her consumption. There is still no clarity as to what was in fact her consumption at times relevant to the surgery. I do not consider her family's evidence either clear or reliable as to time frames or consumption levels. 7. In the concurrent expert evidence, (and in the joint liability report), it was apparent that the experts retained by Katrina offered their views based on the assumption that she had told Dr Harrison that she was in fact consuming a bottle of wine a night and had been doing so for a long time, or that he should have assumed that was the fact, and that was the least amount of alcohol she had in fact been consuming at all relevant times. 8. The evidence is so unsatisfactory on this issue that no such assumptions can be made, and so any expert opinions reliant on those assumptions fall away. 9. The assertion that the surgery should have been "delayed" for some months also begs the question. If what Katrina and her family asserted was true, Katrina misrepresented to all the medical professionals her level of alcohol consumption during 2013 as well as to Dr Bleasel in November 2012. There is no reason to assume that Katrina would stop inaccurately reporting or underestimating (or over-estimating) her alcohol consumption, or that she would in fact reduce her alcohol consumption. A delay of the procedure would have achieved nothing, even if Katrina was prepared to consult a psychologist about her possibly excessive, but denied, alcohol consumption. 10. I have concluded that it is most unlikely Katrina would have engaged with a psychologist. If she did, she would only be "going through the motions" in order to be permitted to have the procedure she wanted. Katrina never, on my understanding, consulted a psychologist and in fact refused referral to a psychologist to assist her with her psychological health surrounding her post-sleeve complications and illnesses. In my opinion nothing at all would have been achieved by delaying the surgery she clearly needed to manage her morbid obesity. 11. There was no failure to warn of the many risks of the gastric sleeve procedure. Katrina was comprehensively warned of the many risks. 12. Referral to a tertiary hospital is an allegation of negligence that is not established and goes nowhere. Katrina was actually physically transferred to the care of Dr Jorgenson and Professor Craig at St George Hospital in September/October 2014. The treatment provided did not help Katrina's clinical condition. Time and recovery of nutrition was required before any further surgery could be considered. That was ultimately done at Concord Hospital in 2017 with a good outcome. There is no evidence upon which I could safely conclude that an attempt at Roux-en-Y in 2014 or 2015 or even 2016 would have had a good outcome, or what that outcome would have been. 13. It has been clearly established on the evidence of Professor Brown and Dr Garett Smith that Dr Harrison's advice and treatment was consistent with what a responsible body of peer professionals have concluded was widely accepted in Australia at the relevant time, as competent professional practice. The plaintiff's case fails. Orders 1. I make the following orders: 1. Verdict and judgment for the defendant. 2. The plaintiff to pay the defendant's costs of the proceedings. ********** Annexure - Polsen v Harrison (No. 8) (3748151, pdf) Endnotes 1. Exhibit A; Statement of Katrina Polsen, 9 October 2020; Exhibit B, Statement of Katrina Polsen, 14 December 2020; Exhibit C, Statement of Katrina Polsen, 21 December 2020 2. Tcpt, 24 February 2021, p 263(4) 3. Tcpt, 24 February 2021, p 262(25)-(32) 4. Exhibit A, Statement of Katrina Polsen, 9 October 2020, par 29; Tcpt, 24 February 2021 p 263(16)-(24) 5. Tcpt, 24 February 2021, p 268(10) 6. Tcpt, 24 February 2021, p 257(44) and p 301(13) (not $800.00 per week as alleged in the Statements of Particulars) 7. Exhibit 45, Report of Dr Bleasel, 19 November 2012 8. Tcpt, 24 February 2021, p 263-266 9. Tcpt, 24 February 2021, p 266(41) to p 269(21) 10. Tcpt, 25 February 2021, p 310(18)-(42) 11. Tcpt, 25 February 2021, p 311(12)-(14) 12. Tcpt, 25 February 2021, p 329(32) to p 331(17) 13. Tcpt, 10 December 2021, p 809(9) 14. Tcpt, 24 February 2021, p 271(5)-(7) 15. Tcpt, 24 February 2021, p 277(10) 16. Tcpt, 24 February 2021, p 285(14)-(16) 17. Tcpt, 25 February 2021, p 307(47)-(49) 18. Tcpt, 26 February 2021, p 435(14)-(24) 19. Exhibit 45, Report of Dr Bleasel, 16 July 2011 20. Exhibit 45; Report of Dr Bleasel, 19 November 2012 21. Exhibit 60, Report of Anne-Marie Reese, 1 March 2017, p 6 22. Exhibit A, Statement of Katrina Polsen, 9 October 2020, pars 21-24 23. Tcpt, 25 February 2021, p 316(37) 24. Tcpt, 25 February 2021, p 316(39) 25. Tcpt, 25 February 2021, p 327(21) 26. Exhibit 8, Statement of Katrina Joy Aicken, 19 November 2020, Annexure A 27. Tcpt, 16 December 2021, p 1104(6) to p 1105(5) 28. Exhibit A, Statement of Katrina Polsen, 9 October 2020, par 35 29. Exhibit 8, Statement of Katrina Joy Aicken, 19 November 2020, par 6 30. Exhibit 8, Statement of Katrina Joy Aicken, 19 November 2020, par 6 31. Tcpt, 25 February 2021, p 327(1) 32. Tcpt, 25 February 2021, p 331(17) 33. Exhibit 8, Statement of Katrina Joy Aicken, 19 November 2020, pars 10-11, Annexure A 34. Exhibit 8, Statement of Katrina Joy Aicken, 19 November 2020, par 13 35. Exhibit 8, Statement of Katrina Joy Aicken, 19 November 2020, par 17 36. Exhibit 8, Statement of Katrina Joy Aicken, 19 November 2020, Annexure B 37. Tcpt, 25 February 2021, p 323(8) 38. Exhibit 3, Statement of Dr Richard Harrison, 20 November 2020, par 16 39. Exhibit A, Statement of Katrina Polsen, 9 October 2020, par 41 40. Tcpt, 25 February 2021, p 350(7)-(23) 41. Tcpt, 25 February 2021, p 352(25) 42. Exhibit 2, Statement of Lisa Howard, 1 December 2020, par 2 43. Exhibit 2, Statement of Lisa Howard, 1 December 2020, par 3 44. Tcpt, 26 February 2021, p 443(15)-(29); p 484(20) 45. Exhibit 2, Statement of Lisa Howard, 1 December 2020, par 5 46. Tcpt, 26 February 2021, p 459(49) 47. Tcpt, 26 February 2021, p 460(6) 48. Exhibit 2, Statement of Lisa Howard, 1 December 2020, par 2 49. Tcpt, 6 December 2021, p 589(28)-(35) 50. Tcpt, 6 December 2021, p 589(43) 51. Exhibit 2, Statement of Lisa Howard, 1 December 2020, Annexure B 52. Exhibit A, Statement of Katrina Polsen, 9 October 2020, par 39 53. Exhibit C, Statement of Katrina Polsen, 21 December 2020, par 6 54. Tcpt, 26 February 2021, p 476(32) to p 478(5) 55. Exhibit 72, Defendant's Supplementary Tender Bundle, p 3608 56. Exhibit 3, Statement of Dr Richard Harrison, 20 November 2020, par 21 57. Exhibit 3, Statement of Dr Richard Harrison, 20 November 2020 58. Exhibit 3, Statement of Dr Richard Harrison, 20 November 2020, par 28 59. Tcpt, 25 February 2021, p 340(4) 60. Exhibit 3, Statement of Dr Richard Harrison, 20 November 2020, pars 33-34 61. Exhibit A, Statement of Katrina Polsen, 9 October 2020, par 48 62. Exhibit 3, Statement of Dr Richard Harrison, 20 November 2020, par 31 63. Exhibit A, Statement of Katrina Polsen, 9 October 2020, par 47 64. Exhibit 72, Defendant's Supplementary Tender Bundle, p 1265; Tcpt, 6 December 2021, p 561(5) to p 562(20) 65. Exhibit 3, Statement of Dr Richard Harrison, 20 November 2020, Annexure I 66. Tcpt, 25 February 2021, p 350 67. Exhibit 72, Defendant's Supplementary Tender Bundle, p 1267 68. Exhibit 3, Statement of Dr Richard Harrison, 20 November 2020, par 58 69. Tcpt, 15 December 2021, p 1089(4)-(9) 70. Tcpt, 15 December 2021, p 1089(38)-(43) 71. Tcpt, 15 December 2021, p 1889(20)-(29) 72. Exhibit 3, Statement of Dr Richard Harrison, 20 November 2020, par 72 73. Tcpt, 16 December 2021, p 1116(23)-(31) 74. Tcpt, 16 December 2021, p 1132(45)-(50) 75. Agreed Chronology, 5 February 2021 76. Agreed Chronology, 5 February 2021 77. Agreed Chronology, 5 February 2021 78. Tcpt, 16 December 2021, p 1141(31) 79. Tcpt, 16 December 2021, p 1145(49)-(50) 80. Exhibit G, Statement of Richard Polsen, 9 October 2020, par 28 81. Exhibit 44, Letter from Dr John Jorgensen to Dr Williams, 5 September 2014 82. Exhibit B, Statement of Katrina Polsen, 14 December 2020, par 19 83. Exhibit 7, Statement of Nicholas Williams, 3 February 2021, par 6 84. Tcpt, 15 December 2021, p 1058(41)-(46) 85. Exhibit 72, Defendant's Supplementary Tender Bundle, volume 1, p 137 86. Agreed Chronology, 5 February 2021 87. Tcpt, 16 December 2021, p 1135(18)-(19) 88. Tcpt, 16 December 2021, p 1148(47) to p 1149(12) 89. Exhibit 72, Defendant's Supplementary Tender Bundle comprising five volumes 90. Exhibit 72, Defendant's Supplementary Tender Bundle comprising five volumes, p 4712 91. Exhibit HH, Report of Dr Selwyn Smith, 30 August 2016, with commissioning letter dated 24 August 2016 92. Exhibit DD, Report of Mark Ravagnani, 26 April 2017, together with instructing letter dated 15 November 2016 93. Exhibit SS, Plaintiff's Tender Bundle comprising miscellaneous medical, hospital and other documents, p 16 94. Exhibit H, Report of Dr Geoffrey Miller, 8 March 2016, together with letter of instruction 95. Exhibit J, Report of Dr Geoffrey Miller, 23 October 2017, together with letter of instruction 96. Exhibit K, Report of Dr Geoffrey Miller, 15 August 2018, together with letter of instruction 97. Exhibit L, Report of Dr Geoffrey Miller, 14 December 2019, together with letter of instruction 98. Exhibit VV, Report of Dr Geoffrey Miller, 25 May 2020, together with letter of instruction 99. Exhibit N, Report of Prof David Morris, 30 July 2016, together with letter of instruction 100. Exhibit O, Report of Prof David Morris, 21 June 2017, together with letter of instruction 101. Exhibit Q, Report of Prof David Morris, 27 November 2019, together with instructing letter 102. Exhibit R, Report of Prof David Morris, 22 May 2020, with article titled "Smoking and Alcohol Abuse are Major Risk Factors", together with letters of instruction dated 22 May 2020 and 14 May 2020 103. Exhibit S, Report of Dr Michael Mar Fan, 14 January 2019, together with instructing letter 104. Exhibit T, Report of Dr Michael Mar Fan, 10 October 2019, with attachments 105. Exhibit U, Report of Dr Michael Mar Fan, 9 June 2020, with abbreviated CV and studies referred to in body of the report referred; supplemented by the addition of update letter dated 17 May 2022 referring to other surgical experience 106. Exhibit W, Report of Mr Andrew Jenkinson, 10 June 2018, together with qualifying letters dated 6 March 2018 and 29 May 2018 107. Exhibit 46, Article by Shabanzadeh and Sorensen, 24 May 2013 108. Tcpt, 17 February 2021, p 83(35) to p 84(50) 109. Tcpt, 20 May 2022, p 1467(22)-(27) regarding the joint liability report 110. Tcpt, 19 May 2022, p 1434 to p 1436 111. Exhibit 51, List of materials provided to Joint Conference of Liability Experts January 2021 and 11 page document of assumptions provided to plaintiff's experts only for Joint Conference of Experts on Liability January 2021 112. Tcpt, 18 May 2022, p 1361(45) to p 1362(4) 113. Tcpt, 18 May 2022, p 1361(21)-(28) 114. Tcpt, 18 May 2022, p 1396(45) to p 1397(3) 115. Tcpt, 18 May 2022, p 1401(5)-(26) 116. Tcpt, 18 May 2022, p 1401(49) to p 1403(2) 117. Tcpt, 18 May 2022, p 1406(38)-(47) 118. Tcpt, 18 May 2022, p 1415(32) to p 1416(6) Amendments 24 July 2023 - Par 290: corrected "inadmissible" to "admissibility" Par 292: inserted a full stop after the word judgment. Par 293: corrected the word "standard" to "standards" 16 October 2023 - Par 402: corrected the word "remitted" to "readmitted". DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 October 2023