YELAVICH v WILLCOCKS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY, POWELL JJA and FITZGERALD AJA 9 November 1998, 9 November 1998 [1998] NSWCA 271 MEDICAL NEGLIGENCE — PLAINTIFF'S APPEAL AGAINST VERDICT FOR DEFENDANTS Priestley JA This is an appeal by a plaintiff whose District Court negligence case against a doctor and a hospital was dismissed by Acting District Court Judge Dodd. The sequence of events leading to the court proceedings was as follows. The plaintiff and his family lived on a banana plantation not far from Macksville. On 3 February 1991 the plaintiff dropped a heavy tool box on his left foot and cut it to an extent which together with the disability he felt as a result of the accident led him to go to the Macksville District Hospital. There he was examined by Dr Willcocks who according to his own evidence and as accepted at the trial thoroughly examined the plaintiff, came to the conclusion that he had not suffered any severance of tendons and prescribed treatment appropriate for what he thought the plaintiff had suffered. After the examination and as the plaintiff was on his way out of the hospital he collapsed and complained of extreme pain from the injured ankle. Dr Willcocks was engaged by this time in treating another patient and did not consider that any further examination of the plaintiff was required. Two days later the plaintiff attended on Dr Adams, his foot was swollen and he was still suffering pain. Dr Adams was unable either to diagnose with any certainty what was the cause of the plaintiffs problem. He asked the patient to attend again, which he did on 18 February, when once more Dr Adams apparently, judging by the patient card which was in evidence, felt himself unable to diagnose the plaintiff but referred him to Dr Grech, a surgeon at Kempsey. Dr Grech diagnosed the plaintiff as having two severed tendons and operated on him on 25 February 1991. Dr Grech was concerned at the time of the operation that the interval between the rupture and the suture of the tendons might lead to the operation not being completely successful. However, somewhat to his surprise as the correspondence shows and also clearly to his pleasure, in his view the operation turned out to be quite successful without any adverse consequences from the delay in the diagnosis of the rupture. According to the plaintiffs case however, notwithstanding the surgeon's view of the success of the operation, he continued to suffer effects from the tendon ruptures which caused him considerable difficulties in working and led to financial loss. On 17 May 1993 the plaintiff saw Dr Davis, apparently with a view to the possibility of commencing proceedings. Dr Davis saw the plaintiff once and gave a report dated 24 May 1993 which was followed up by a letter of 30 June 1993. As appeared at the trial the report and the letter were based on a history which presumably had been supplied by the plaintiff which was inaccurate in a number of details. There was nothing sinister in the inaccuracies. They were of a kind which could easily have resulted from some telescoping in the plaintiff's 2 UNREPORTED JUDGMENTS recollection of what had happened to him in the period between his injury and the operation. Nevertheless these inaccuracies were not altogether insignificant. The plaintiff commenced proceedings at the beginning of 1994. They came on for hearing at the end of June 1997. The plaintiff's case was that the defendant doctor should have made a diagnosis of rupture of the tendons earlier and that failure to do so had caused the plaintiff damage. The stage at which it was said the defendant doctor should have made the diagnosis was the point at which the plaintiff had collapsed on his way out of the hospital on 3 February 1991. The medical basis for the plaintiff's case was the report and letter of Dr Davis and his oral evidence. The features of his evidence supporting the plaintiffs case appeared much more clearly in the report and letter than they did in Dr Davis' oral evidence. The most important part of the report from this point of view appears at Appeal Book 159 where Dr Davis after referring to the plaintiffs collapse on his way out of the hospital, said, "Tt would appear that a partial rupture of the tendon/s occurred at the time of the incident. The full rupture of the tendon would certainly appear to have occurred in the hospital whilst in the presence of Dr Willcocks. The sudden tearing pain shooting from his foot to his knee and causing him to fall to the ground is quite consistent with such an injury. Whilst his initial treatment is quite acceptable I feel that it would have been reasonable for him to be re-assessed following his collapse. This would have demonstrated his change in condition from partial rupture to full tear and would have resulted in his subsequent earlier referral to Dr Grech with possibly less residual disability." That passage contains really what was the strongest feature of the evidence in support of the plaintiff's medical case. Dr Davis' oral evidence, however included the following passage in cross-examination: "Q. If that had been done and an assessment had been made after an examination in somewhat difficult circumstances, well I withdraw that. Just assume if you could that a detailed examination had been carried out initially by Doctor Willcocks, and that particular attention was paid to the question of dorsi flexion and whether or not it was due to a rupture or simply pain? A. Mn, pain. Q. It would have been reasonable would it not for Doctor Willcocks to have concluded that a further examination would not have been of any additional assistance? A. After the incident of falling to the floor? Q. Yes, can I - just to clarify it, 'm asking you now to disregard the assumptions for the moment. In other words, I'm taking you back to your original report? A. Right. Q. Where you' ve indicated that at least after the patient collapsed, there should have been I take it a further examination? A. Yes, oh yes, certainly not before that. I'd like to believe that he's appropriately examined him the first time and before he sutured him. Q. Now if there was a detailed examination the first time, it's unlikely is it not that at that stage a further examination given what had occurred would have revealed anything additional? A. That's correct. URJ YELAVICH v WILLCOCKS (Priestley JA) 3 Q. So that even if one disregards the assumptions that I have asked you to make, and I take you back to your original report, isn't it the case that there's really nothing further on 3 February 1991 that Doctor Willcocks could have done? A. I really need to clarify perhaps my last answer also. Are we talking about the gentleman having collapsed to the floor in sudden pain?, Q. Yes. A. But not having done anything else. Q. Yes what I'm suggesting to you is that if one goes to that point in time, the plaintiff's collapsed on the floor, there's the sudden pain in the left leg going up, just stopping there, what I'm suggesting to you is that there's really nothing more that Doctor Willcocks could have then done which would have assisted in determining whether or not there was a rupture, given that there'd been a detailed examination with particular attention being paid to the question of dorsi flexion? A. If the tendon is ruptured between the suturing of the outer layers and the gentleman leaving hospital, ie at the time that he collapsed to the floor, there would have been some findings. I mean I don't know what his first findings were. Perhaps he couldn't get Mr..(not transcribable).. to dorsi flex his foot, I don't know, but he would have had a lot more trouble getting him to dorsi flex his foot after the tendon ruptured. Q. And is it your view that where Doctor Willcocks fell below the standard that was required of him, it was in not further examining Mr Yelavich after he fell down, after he had the collapse in pain? A. Yes. Q. You see isn't it really the fact that if upon initial examination the view had been formed that there was limited dorsi flexion and that that was secondary to pain and swelling rather than tendon damage, a further examination would have been highly unlikely to have changed that view? A. Yes, if there was very little movement at the first examination, then the second examination was unlikely to have shown anything different yes. Q. So if you can assume that that's what was found on the first examination, then even if the plaintiff had fallen over with the pain and collapsed on the floor there's really nothing further that an examination by Doctor Willcocks would have revealed at that time, isn't that right? A. Possibly not at that time from a physical examination. Q. Now just one last thing Doctor, do you still have that letter from Doctor Grech to Doctor Adams that I showed you dated 27 September? A. I do yes. Q. Given that Doctor Grech was the treating doctor who carried out the operation, would you at the end of the day defer to his view that the three week delay didn't make much difference to the outcome? A. No I can't do that." The letter referred to towards the end of the passage set out above from Dr Grech to Dr Adams was as follows: "Mr Yelavich had the severed tibialis anterior tendon and the extensor digitorium tendon sutured in February this year. He came to see on 26 September 1991, complaining of a lot of symptoms and stating that as a result of his ankle he has had to employ people and he is thinking of giving up his work as a Banana Grower. 4 UNREPORTED JUDGMENTS Unfortunately he is again very bitter about the 3 weeks delay before he had the tendons sutured and although I tried to explain to him that this would not have made any difference to the outcome I do not think that I have made much impact on him. In fact, I think he has had a good result with both tendons working well and apart from a wide scar with some adherence of the underlying tendons to the scar and some limitation of dorsi flexion of the left ankle I would consider him to have had a good result." The materials set out above show that two substantial issues emerged at the trial. One was whether a further examination after the plaintiffs collapse would have led to a diagnosis, even a differential diagnosis, of severed tendons. The second was whether the plaintiff in any event suffered any damage, that is would his position have been any different if the operation to suture his severed tendons had been carried out at an earlier date. There was conflict between Dr Davis and the expert evidence in the defendant's case from various doctors on both these issues. In regard to the first issue, to say the least, the evidence given in the passage of the cross-examination set out above shows that Dr Davis' basis for his opinion on the first issue was very tentative. As to the second issue, as against Dr Davis' rather bare assertion, the trial judge had before him not only Dr Grech's letter of 27 September 1991, he had the whole sequence of correspondence from Dr Grech commencing with a letter dated 22 February 1991, followed up by letters dated 26 February 1991, 8 March 1991, 10 April 1991 and 8 May 1991. This sequence of letters provides strong support, if their contents are accepted, for the conclusion that the fact that the operation had not taken place earlier than it did had not made any difference to the outcome. There was no reason in the evidence before the Court why the Judge should not have accepted Dr Grech's opinion. The only countervailing opinion was that of Dr Davis. In view of the uncertain basis for Dr Davis' opinion as revealed in the evidence I have set out it is not surprising that the trial Judge relied on Dr Grech, nor in my opinion is there any basis for this Court to disturb the trial Judge's acceptance of Dr Grech. Dr Grech's opinion was a sufficient basis for his Honour to dismiss the Plaintiff's case, particularly as there was other medical evidence supporting Dr Grech. For the plaintiff to have succeeded in his proceedings he needed at least to succeed on both the issues that I have described. Failure on the second issue was sufficient to defeat his whole case. In regard to the first issue there was also substantial medical evidence supporting the defendants. This evidence included on the defendant's side that of Dr Walsh. Dealing with this his Honour said: "The problem with the evidence of Dr Davis is that it is based on an incorrect history. He assumed rupture of the extensor hallucis longus tendon. It did not rupture. The tibialis anterior tendon and the extensor digitorum tendon ruptured. Dr Davis was never asked whether this made any difference to his opinion. I cannot fill the gap. I am therefore left with the opinion of Dr Walsh." The trial Judge indicated that he thought the plaintiff failed on the first issue as well as the second. The passage I have just set out formed the basis of the plaintiff's attack upon the whole of the trial judge's reasons. It was submitted that although Dr Davis had made the mistake in his report and letter which the Judge referred to in the passage just set out, nevertheless that mistake did not invalidate URJ YELAVICH v WILLCOCKS (Priestley JA) 5 Dr Davis' evidence in the absolute way which it was said the Judge had taken it to do. It was submitted that in the course of his oral evidence Dr Davis had in substance dealt with the two main sets of factual assumptions which broadly speaking covered the possible factual findings. It was then submitted that since his evidence had proceeded on that basis before the Judge the effect of his initial misunderstanding of the history became of no consequence. There are a number of problems with this submission. The first one is that in dealing with the first issue I do not think the trial Judge was deciding it solely on the basis of the criticised passage set out above. Immediately after that passage the trial Judge continued: "Tn any event it seems to me that there was limited opportunity for a different diagnosis and the questions of what different tests might have been applied by Dr Willcocks or what possible different results might have been achieved so as to lead to a different diagnosis were never explored. I am therefore not satisfied that any negligence on the part of Dr Willcocks led to the failure to diagnose ruptured tendons." This passage seems to me to show the Judge was approaching the first issue on a wider basis than simple absolute rejection of Dr Davis. There was evidence before him both from Dr Davis and from Dr Walsh and others upon which it was open to him to find in favour of the defendants on the first issue, to use his own words "in any event". But the main problem with this submission is that even if it were to be successful I do not see that its success would in any way affect the validity of the trial Judge's conclusion on the second issue. The effort to concentrate the Court's attention on the criticised passage tended to distract attention from the fact that Dr Grech's evidence was before the Court, had a convincing air about the sequence of events it related and opinions it gave, and was accepted by the trial Judge in circumstances where there was no compelling reason of any kind why he should not accept it. As I said earlier that was enough to decide the case in itself. The result is that although I am rather doubtful whether the plaintiff could make good his submission on the first issue I do not feel it necessary to decide that question because the inability of the plaintiff to disturb the Judge's conclusion on the second issue means that the plaintiff must fail in the appeal. There was a further point raised on behalf of the plaintiff in regard to the costs order which the trial Judge made. After giving his reasons he ordered the plaintiff to pay the defendant's costs including costs on an indemnity basis from 17 September 1996. It was submitted to the Court today that his Honour had erred in making that order. After listening to the earnest submissions of the plaintiff's counsel on this point I am unable to see that there was any matter of principle or significant fact in regard to which his Honour made any error of the kind necessary to lead this Court to consider disturbing his discretionary judgment in regard to a matter of costs. Being of that view I do not think it necessary in the present case to expand upon it any further. In my opinion the appeal should be dismissed with costs. Powell JA I agree. Fitzgerald AJA I agree. Priestley JA The order of the Court is that the appeal is dismissed with costs. Appeal dismissed with costs. 6 UNREPORTED JUDGMENTS Counsel for the appellant: M Scott Solicitors for the appellant: Stacks The Law Firm (Taree) Counsel for the respondent: M Bozic Solicitors for the respondent: Blake Dawson Waldron