JONES v HARRIS and ANOR SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL HANDLEY and STEIN JJA, and GROVE AJA 16 April 1997, 10 December 1997 [1997] NSWCA 169 MEDICINE — negligence — no question of principle The appellant, a married woman, underwent dilation, curettage and tubal ligation at Mudgee Hospital on 24 July 1987. Dr Harris, her general practitioner, examined the plaintiff and conducted a pregnancy test on 2 July. He informed her that she was not pregnant Dr Solomon, the specialist gynaecologist who performed the procedure on 24 July, also took the plaintiff's history and conducted an internal examination. She had missed two periods prior to the operation. On 6 August she suffered a spontaneous abortion, discharging an undeveloped foetus. She then had a further dilation and curettage at Newcastle Hospital. Professor Russell examined the pathology specimens obtained from the Mudgee and Newcastle operations and concluded that the foetus was approximately 3/2 weeks old at the time of the Mudgee operation when it probably died. It conceded that if the foetus was than less than six weeks old, it would not have been possible to identify the pregnancy and the defendants were not negligent. The trial Judge accepted Professor Russell's evidence and found for the defendants. HELD: The trial Judge found the Professor to be and impressive witness and there was a firm basis for accepting his evidence. The findings made by the trial Judge were not inconsistent with facts incontrovertibly established by the evidence. Devries v Australian National Railways Commission (1993) 177 CLR 472 applied. Handley JA This is an appeal by a plaintiff from the judgement entered form the defendants by Smyth DCJ in an action for professional negligence against doctors. On 24 July 1987 the appellant, a married woman, then aged 24, underwent dilation, curettage and tubal ligation at Mudgee District Hospital. The respondent, Dr John Solomon, was the specialist Gynaecologist, and the respondent, Dr John Harris, was the referring general practitioner and anaesthetist. Early on 6 August the appellant, then in Newcastle, suffered a spontaneous abortion and passed an underdeveloped foetus. She consulted Dr Eastham, who was on duty at an after hours medical clinic. Dr Eastham referred her to Royal Newcastle Hospital, where she again underwent dilation and curettage. Dr Eastham thought that the foetus was 8-10 weeks old, and medical staff at the Hospital considered that the appellant had a 10 week's sized uterus. The central issue in the appeal was whether the appellant was 8-10 weeks pregnant when she had her tubal ligation on 24 July, as the appellant claimed, or was less than 6 weeks pregnant as the respondents claimed. The medical profession dates pregnancies from the first day of the last period although clearly the patient will not actually be pregnant for the whole of this time. The appellant had given birth to her third child on 22 November 1986. She had normal menstrual periods in April and on 2 May 1987, but missed her periods on 30 May and 27 June. On 2 July she consulted Dr Harris. She was feeling pregnant 2 UNREPORTED JUDGMENTS and had obtained a positive result from a self-administered pregnancy test. Dr Harris examined the appellant, administered another pregnancy test, and told her she was not pregnant. The appellant then asked Dr Harris whether she should have a tubal ligation. They discussed this procedure and she agreed to have it carried out as soon as practicable. It was to be carried out by Dr Solomon, a Sydney specialist with 25 years experience, who visited Mudgee Hospital. The appellant had a further consultation with Dr Harris on 20 July but only for the purpose of completing the paperwork for her admission to Mudgee Hospital. The doctor did not examine her again and did not conduct a further pregnancy test. As the Judge held, there could be no suggestion that, at that stage, this doctor had been guilty of professional negligence. The appellant was admitted on 23 July. Dr Solomon saw her the following day, took an extensive gynaecological and obstetric history, and also examined her. He said that if she had been more than 6 weeks pregnant he would have noticed it. The tubal ligation involved that insertion of a laparoscope into the appellant's uterus. The doctor said that he saw her uterus "through the laparoscope". He had no doubt that an examination under anaesthetic was also carried out either by himself or by the assistant surgeon before the procedure was undertaken. The Judge found that unless the appellant was then carrying a 6 weeks foetus, or one very close to 6 weeks, the examinations at the Mudgee Hospital could not determine whether or not she was pregnant. He said that there was no real dispute about that. The respondent's expert, Professor Russell, a specialist gynaecological pathologist, said that it was highly probable that the foetus died at the time of the curettage on 24 July. The appellant relied on this opinion, the opinion of Dr Eastham as to the age of the foetus, and the finding at Newcastle Hospital as to the development of her womb to establish that she must have been at least 8 weeks pregnant when she underwent the procedure at Mudgee Hospital on 24 July. If so her pregnancy should have been diagnosed and the procedure discontinued until she could be consulted. Mr Higgs SC acknowledged that if the appellant had been 8 or more weeks pregnant on 24 July, one or both of the respondents had been negligent. In that situation it is possible that Dr Harris was not negligent but Dr Solomon was. However Mr Higgs invited the Court to determine the right of the appellant without differentiating between the position of the two respondents. Mr Leslie QC did not object to this course, and the Court indicated that it would act on this basis. For his part, Mr Leslie accepted that if the appellant was less than 6 weeks pregnant on 24 July the judgment could not be disturbed. Thus the sole question on liability was whether the appellant was more than 6 weeks pregnant on 24 July. The appellant' history of missed periods on 30 May and 27 June was known at the time to both respondents, but in their view this was explained by her use of the pill which inhibits normal menstruation. Her history given to both doctors included statements that she sometimes forgot to take the pill, and this had been the cause of the unplanned pregnancy which had led to the birth of her third child. This was one of her reasons for wishing to have a tubal ligation. The respondent's case at the trial was based on the clinical findings of the two doctors on 2 and 24 July, and the opinion of Professor Russell based on his examination of the slides of curetted material obtained by the two hospitals. He URJ JONES v HARRIS and ANOR (Stein JA) 3 said that the Mudgee slides showed that the appellant was then only about 3/2 weeks pregnant. He thought that the material in the Newcastle slides had been affected by degenerative changes following the death of the foetus, and was therefore difficult to assess. He said that those slides showed development somewhere within the first 12 weeks of pregnancy but he could not be more precise. Professor Russell said that the appellant's observation that the aborted material was some 10 cms in length could be explained by the presence of the placenta, the embryo sac, and decidual tissue in addition to the foetus. Dr Eastham said that the foetus was about 4 inches long. However this may have been the only foetus she had examined since she qualified some 18 months earlier, and Dr Solomon said that it is hard to estimate the age of a foetus from its appearance. He also said that the opinion of medical staff a Royal Newcastle Hospital that the appellant had a 10 weeks' sized uterus did not mean that she was or had been 10 weeks pregnant. The Judge accepted Dr Solomon's evidence. Professor Russell was strongly challenged in cross-examination on the ground that his reports on the Mudgee and Newcastle slides were inconsistent. The Judge was asked to disregard his evidence and the case was adjourned so that counsel could have the benefit of the transcript before completing their submissions. Notwithstanding Mr Leslie's submissions, the Judge accepted Professor Russell's evidence saying: "T found Prof Russell a most impressive witness. I have made allowance for the criticism Mr Leslie has made, but I am satisfied on the balance of probabilities that what he contends for is correct. I am satisfied that at the time of the operative procedure the plaintiff was days or weeks pregnant." Mr Leslie renewed in this Court his challenge to Professor Russell's evidence, and this was the substantial issue in the appeal. Having read and re-read Professor Russell's reports and his evidence, I have come to the firm conclusion that the Judge's findings cannot be disturbed. Mr Leslie's criticisms had some force, but did not constitute facts incontrovertibly established by the evidence inconsistent with the Judge's findings. See Devries v Australian National Railways Commission (1993) 177 CLR 472 at 477. The principles which restrain appellate interference with findings of primary fact by a trial judge also apply to expert witnesses. See Ahmedi v Ahmedi (1991) 23 NSWLR 288 at 299-300. The appellant's attack on the findings based on Professor Russell's evidence therefore fails and the appeal must be dismissed with costs. Stein JA The facts in this sad and unfortunate appeal are set forth in the judgement of Handley JA. The parties have accepted that whether Doctors Harris and Solomon (the respondents)were negligent turns on whether Ms Jones (the appellant) was 6 or more weeks pregnant when she underwent a tubal ligation at Mudgee Hospital on 24 July 1987. It was accepted at the trial that pregnancy may not reasonably be diagnosed clinically earlier than 6 weeks. The trial Judge found that the appellant was not 6 of more weeks pregnant. Accordingly, he entered judgement for the defendants. His Honour found that the appellant told Dr Harris (a general practitioner) that her last normal menstrual period was on 2 May 1987. Professor Russell gave evidence that the foetus would have died at the date of the curretage on 24 July. Accordingly, the question became whether the foetus miscarried by the appellant on 6 August was more than 6 weeks old. Dr Solomon, a gynaecologist, said that 4 UNREPORTED JUDGMENTS pregnancies are generally dated from the last menstrual period, although pregnancy does not actually occur until ovulation, two weeks later. The appellant gave evidence that she was taking the contraceptive pill, but that sometimes she forgot. She said that she attended Dr Harris on 2 July because she had missed a period, had had a positive pregnancy test (from a pregnancy test kit) and 'felt pregnant'. In his evidence Dr Solomon stated that the commonest side effect of the pill is that the woman has no periods at all. He said that by missing the pill for one or two days, a woman can ovulate (to use his expression 'pop an egg'). The doctor also said that when a woman is on the pill she has 'no [menstrual] cycle at all' and that the monthly bleeding is merely a 'withdrawal bleed' because she does not take the hormone. The respondent's explanation for the appellant's pregnancy was that she could have ovulated and fallen pregnant at any time between 2 May and the operation if she failed to take the pill. Given the history narrated by the appellant of forgetting to take the pill, the fact that the appellant presented to Dr Harris claiming to feel pregnant and after a positive result from a chemist shop pregnancy test kit, it is reasonable to expect that the respondents would have taken particular care to determine whether or not she was pregnant. The appellant saw Dr Harris on two occasions., 2 July and 20 July, before her admission to hospital on 23 July for the tubal ligation undertaken by Dr Solomon the following day. Doctor Harris's evidence, supported by his medical notes, was that at the first consultation with Ms Jones he discussed her contraceptive situation and her relationship problems (referring her to a psychologist) and discussed a tubal ligation. Doctor Harris agreed that he did not conduct an internal examination of the appellant on 20 July, because the purpose of the second consultation was merely to complete the paperwork for her admission to hospital for the tubal ligation. He said that such an examination was unnecessary because she would be examined by Dr Solomon, and that it was preferable to avoid unnecessary internal examinations. The appellant's evidence is that the tubal ligation (and her relationship problems) were not discussed until the second consultation on 20 July. The appellant also says that she told Dr Harris at the 20 July consultation that she had missed another period. If accepted, this testimony would lead one to expect Dr Harris to conduct another examination. However, as Dr Harris pointed out, based on her last period until July 26 or later. As I have said, Dr Harris's evidence is corroborated by his clinical notes. Dr Solomon says that he took an oral history from Ms Jones and his notes record facts about the appellant's gynaecological history. The appellant denies that he took a full oral history apart from telling him she was on the pill and her answers to questions about miscarriages. It is possible that Dr Solomon obtained the information in his notes in the course of discussions with Dr Harris. The appellant is emphatic that Dr Solomon did not conduct an internal examination prior to anaesthesia, and the doctor states that he has no independent recollection of such examination, although he says it would have been his usual practise and, if it was normal, he may not have recorded it. The time which elapsed between her last period on 2 May and the tubal ligation on 24 July is 83 days, or just less than 12 weeks, but on the assumption of pregnancy occurring 2 weeks after the last period, the pregnancy would be, at most, just under 10 weeks. However, the pregnancy could have occurred at any URJ JONES v HARRIS and ANOR (Stein JA) 5 time after the last period when the appellant failed to take the pill. Accordingly, it is not possible to independently date when the appellant's pregnancy began. Due to the appellant's history and symptoms, it may be that on one view of the evidence that medical practitioners could be said to have fallen below the standard of care which is expected of a reasonably competent medical practitioner. Notwithstanding, the question remains whether that lack of care caused the appellant's injuries and loss. That is, if one of both of the doctors had undertaken examinations in late July, would any sign of the appellant's extant pregnancy have been observable to a reasonably competent practitioner? The determination of that issue requires consideration of other evidence as to the age of the foetus miscarried by the appellant. To assist this dating process the appellant relied on the evidence of Dr Eastham, a young doctor who was on duty at the Newcastle Medical Centre on 6 August when the appellant attended following her miscarriage. His Honour said Dr Eastham 'was a forthright and definite witness' who made a favourable impression'. She was a psychiatric registrar performing locum work as a GP at the time, some 18 months after she qualified. Although she could not recall having examined a foetus as 2-2 months, which she said was based on her textbook learning and personal experience during her gynaecological terms as a student and during her residency. The material curetted by Newcastle Hospital was described as the 'products of conception'. Dr Sussman, called by the appellant, reconciled the minimal quantity of material at Newcastle Hospital with an 8-10 week pregnancy by explaining that most of the material would have been expelled at the time of the spontaneous abortion. The material curetted at Mudgee Hospital during the tubal ligation and tested by Orana Pathology was described as 'mid secretory', which means that the patient is mid-cycle, that is, she has not yet missed a period. Therefore, she is less than one month pregnant. However, the amount curetted on this occasion was also insufficient for accurate dating and Dr Sussman gave evidence that a finding that a patient is mid secretory did not rule out a more advanced pregnancy. Accordingly, the expert evidence differed as to the correct interpretation to be placed upon the results of the tests. Smythe DCJ said that he was impressed by both Dr Eastham and Professor Russell, but favoured the opinion of the 'very highly qualified' Professor Russell. His Honour concluded that he could not 'go beyond the very forceful opinion expressed by Professor Russell'. On behalf of the appellant, Mr Leslie QC asserts that the trial judge 'palpably misused his advantage, in failing to give proper weight to the uncontradicted evidence of the patient's Newcastle attendants'. It is true that his Honour did not make any comment on the impression made or the evidence of Dr Sussman, to whom the appellant was referred by her solicitor, and whose evidence supported Dr Eastham. However, his Honour was entitled to conclude that he preferred the evidence of one expert witness over another, and although he said he was 'conscious of the description by the plaintiff, Dr Eastham and Newcastle Hospital', he summarised the conflict of experts as being between the uncorroborated evidence of Dr Eastham on the one hand and Professor Russell and Dr Solomon on the other. In terms of Ahmedi v Ahmedi (1991) 23 NSWLR 288 it is difficult to see how the appellant's submission can be sustained. While the evidence of Dr Sussman could have been seen as important in contradicting the assumption that there was only one conclusion to be drawn from the pathology tests, and although this 6 UNREPORTED JUDGMENTS aspect was not addressed by his Honour, it is difficult to see that this would have led to any different result. It did no more than suggest that there was more than one possibility. Accordingly, I agree with Handley JA that the appeal should be dismissed with costs. 6 Grove AJA I agree with Handley JA. Appeal dismissed with costs. 10 Counsel for the appellant: A Leslie QC/W Peoples Solicitors for the appellant: Glynn Chaffey Counsel for the respondent: D Higgs SC 15 Solicitors for the respondent: Blake Dawson Waldron