McKELLAR v BLAKE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MEAGHER, HANDLEY JJA and SHEPPARD AJA 7 October 1998, 30 October 1998 [1998] NSWCA 153 NEGLIGENCE — Failure by medical practitioner sufficiently to explain nature of procedure and possible consequences — Procedure for removal of patient's wisdom teeth — Risk of permanent anaesthesia of lower left side of jaw not explained or sufficiently explained — Evidence by plaintiff that she would not have had operation if the possibility of anaesthesia of her mouth had been explained to her — Trial judge's failure to accept that evidence — Trial judge's conclusion that "it is more probable than not that, if she had been fully informed of the facts, her decisionmight have been different" — Whether this a sufficient finding to establish necessary causal link between failure sufficiently to inform and plaintiff's resultant condition. Chappel v Hart (1998) 156 ALR 517 discussed. Meagher JA I agree with Sheppard AJA. Handley JA I agree with Sheppard AJA. Sheppard AJA This is an appeal from a judgment of the District Court (Goldring ADCJ) entered as a consequence of a verdict found for the respondent (the plaintiff below) in an action in which he sued the appellant (the defendant) for damages for negligence. The appellant practises as an oral surgeon. The action was based on the alleged failure of the appellant to warn the respondent of the possible consequences of an operation to remove the respondent's wisdom teeth. The operation was performed in October 1991 when the respondent was 19 years old. As a result of the operation, she suffered damage to a nerve or nerves causing the anaesthesia of her lower left lip and jaw. The condition is apparently permanent. Prior to the operation the respondent had consulted her usual dentist who referred her to an orthodontist. She was advised that her teeth were "rather crowded and were crooked". She believed that the treatment she was undergoing was to do with the straightening of her teeth. The respondent's evidence, so his Honour said, was to the effect that her main concern was with the cosmetic rather than the therapeutic elements of the treatment. Nevertheless, the evidence given by the appellant suggests that, in the appellant's view, there was sound medical or therapeutic reasons why the operation was necessary. His Honour made no express findings about this but the tenor of his judgment suggests that he accepted that this was the case. The orthodontist whom the respondent had consulted referred her to the appellant. The referral stated that it was for the purpose of the removal of four wisdom teeth. The respondent consulted the appellant early in October 1991. On 14 October 1991 she was admitted to the Charles Wentworth Hospital and was operated on later that day. The four wisdom teeth were removed. She remained in hospital overnight. She saw the appellant shortly afterwards and on a number of subsequent occasions. She then saw him periodically, at first every six months 2 UNREPORTED JUDGMENTS and subsequently every twelve months. The respondent said that at the initial consultation with the appellant, he gave her a warning. His Honour does not spell out what the warning was but he said: "Having seen Dr McKellar [the appellant] give evidence at length and having read the evidence of other oral surgeons, it is quite clear to me that he deservedly enjoys a very high reputation as an oral surgeon. He is an associate professor in that discipline, he has been teaching for a number of years and the evidence he gave in court shows that he is fully in command of the subject matter in which he is a specialist. He impressed me as being very conscientious and professional and thorough in what he did." His Honour summarised the evidence by saying that the respondent agreed that the appellant had warned her "about certain things", particularly about swelling and soreness as a consequence of the operation. The appellant said that he probably warned the respondent about numbness although he conceded that he saw a great many patients and the evidence he gave was about his general practice rather than about what he said specifically to the respondent. He remembered some matters in relation to the consultation but not the details. His Honour said that the respondent left the consultation with the impression that there was no danger and added, "her evidence, which she repeated consistently under cross-examination, was that, had she known of a danger of permanent loss of feeling, she would not have proceeded with the operation". His Honour also said that her concern from all the evidence she gave was primarily with the cosmetic effect that the operation would have. He said she was concerned to have the procedure carried out as quickly as possible. The feeling of numbness continued well after the operation. She said that the feeling in most of her mouth gradually returned but it did not return to the lower left-hand quadrant. She gave evidence that at times she tended to dribble food and she had to be reminded to clear her lip because she did not appreciate that food was left there. She complained of difficulty in eating and in drinking hot drinks. This is a permanent disability. She has, however, developed techniques which overcome the difficulties. His Honour said some issues remained in doubt. These related to what passed between the respondent and the appellant on the occasion of the consultation before the operation. His Honour referred to the decision of the High Court in Rogers v Whittaker (1992) 175 CLR 479 and to the later decision of this Court in Chappel v Hart (Court of Appeal, 24 December 1996, unreported). An appeal from that decision was recently dismissed by majority; Chappel v Hart (1998) 156 ALR 517. After reference to these authorities, his Honour returned to the evidence. He said that the appellant said that it was his general practice to give a warning. When giving such a warning he had to balance "as it were between scaring the patient off and giving full advice". His Honour said that the appellant's practice was to encourage patients to have the procedure if he thought it was in their interests. He thought that this was a case where the removal of the wisdom teeth would be beneficial to the respondent and "any warning that he gave would reflect his view of the patient's interest". His Honour said that he inferred from the evidence given by the appellant that, although he would warn, "the warning he might give might not be as full as it would have been and yet that with respect is precisely the point of what the High Court said in Rogers v Whittaker (supra) and what the Court of Appeal has said URJ McKELLAR v BLAKE (Sheppard AJA) 3 in Chappel v Hart (supra)". His Honour said that the purpose of the warning was to give to the patient a choice to make an informed decision about whether or not to undergo the procedure. His Honour continued: "When the [appellant] gave evidence he looked at the radiograph, the x-ray picture of the [respondent's] mouth, he looked at his clinical notes and he said well in this case I would have advised her to undergo the procedure for reasons which he gave and which I can accept. He saw that if the [respondent] did not undergo the procedure there was a risk that her upper respiratory tract infection would recur. He put the possible diagnosis of meningitis down to problems flowing from the impacted wisdom teeth which he explained in the Court and various other aspects of the [respondent's] condition would certainly have influenced him in favour of advising the procedure. He said, and I accept, that he would have given a warning." His Honour then said that the question was whether the warning was a communication of the relevant information to the patient in terms which were reasonably adequate for that purpose having regard to the patient's apprehended capacity to understand that information. The words he used come from the principal judgment in Rogers v Whittaker (at 490). Eventually his Honour concluded: "[The respondent] knew to expect numbness and soreness, for example, but I find that although it is more probable than not that the [appellant] mentioned something about a possibility of paraesthesia or anaesthesia and permanent damage to the nerves, he did so in words which the [respondent] could not and could not reasonably be expected to have understood. So I find on those facts that there was a failure to warn and I turn then to the second submission which was made on behalf of the [appellant] as to whether even if the [respondent] had understood the warning she would have gone ahead with the operation." The finding that the appellant failed to give an adequate warning was not challenged in the appeal. I have referred to the evidence about it and his Honour's remarks concerning it in order to set the background for the point of the appeal which is based on an absence of causation. His Honour said that the question was whether the respondent would have had the operation had she appreciated the risk. He said, correctly, that it was clear that the test to be applied was a subjective test. It was not whether a reasonable plaintiff would have understood the risk and it was not whether a reasonable plaintiff would have proceeded with the operation, but whether "this plaintiff would have proceeded with it knowing the risk of permanent damage". The critical part of his Honour's judgment follows: "The point is that because there was not a warning in terms which the [respondent] could adequately understand, she could not make a decision. So in my view that question does not arise. Even if it did arise and I am wrong on that issue, the evidence which the [respondent] has given convinced me that her concern was with cosmetic matters rather than therapeutic matters. It may have been that if the [appellant] had told her in language that she could understand that it was very much in her interest to have the wisdom teeth removed, and quite clearly it was, then she may have decided to go ahead. But her evidence, which is consistent and which was not contradicted, was that if she had known, she would not have proceeded with the operation. That situation is the situation which the Full Court of South Australia considered in Hribar v Wells (1995) Aust Torts Reports 81345. It is slightly different from the situation in Chappel v Hart 4 UNREPORTED JUDGMENTS [supra]. But it seems to me that the important issue is whether or not the [respondent] had an opportunity to make an informed decision. I find that she did not. I find that it is more probable than not that if she had been fully informed of the facts her decision might have been different and that is sufficient for me to find in the [respondent's] favour." In the first sentence of the passage I have quoted, his Honour said that the respondent could not make a decision because she had not had an adequate warning. He concluded, and this was his primary view, that the question whether the respondent in this case would have proceeded with the operation if she had had an adequate warning did not arise because the warning was inadequate. Counsel for the appellant said that this was an error. Counsel for the respondent conceded that it was. It clearly is because the whole case is about a failure to give an adequate warning. If there was not such a warning, and his Honour found that there was not, the next question is what would the respondent have done if an adequate warning had been given. Would the procedure have been undertaken or would it have been declined. That is the question. His Honour sought to cut off the question because it had not arisen. In taking this view, he was clearly mistaken. Against the possibility that his view was misconceived, he continued by saying that the respondent's evidence had convinced him that her concern was with cosmetic matters rather than therapeutic matters. That is his Honour's finding. No challenge to it was made but we were referred to evidence given by the appellant to the effect that there were compelling therapeutic reasons why the procedure needed to be carried out. His Honour must have had this evidence in mind when he made his next remark to the effect that it may have been that, if the appellant had told the respondent in language that she could understand that it was very much in her interests to have her wisdom teeth removed, then she may have decided to go ahead. His Honour said that it was quite clearly in her interest to have the procedure. He then referred to the evidence which the respondent had given about her likely attitude if she had known of the risk. We were referred to this evidence. The respondent said in her evidence in chief that, if there had been any possibility of any numbness after the operation or any effect whatsoever, she would not have undergone the operation. She added, "I wouldn't have had the treatment done". In cross-examination she said that, if she had been under the impression that there had been any possibility of numbness or nerves or any trouble, she would not have the operation. She was asked what her position would have been if she had been told that there might be some numbness and she said, "I wouldn't have had it done". It is not without significance that his Honour, having referred to this evidence which, as he said was not contradicted, did not say that he accepted it. Counsel for the respondent said that we should take the view that that was what he meant by setting it out so emphatically. But, in the light of what follows, I am doubtful whether that was his Honour's view. The fact that the evidence was not contradicted is not significant. The respondent's evidence concerned a matter which was peculiarly within her own knowledge. Certainly the appellant could not have given evidence about it. More importantly, it appears reasonably clear from his Honour's later remarks that he was doing no more than stating what her evidence was. I say that because of the concluding remarks made by his Honour in the paragraph which I have quoted where his Honour said that it seemed to him that the important issue was URJ McKELLAR v BLAKE (Sheppard AJA) 5 whether or not the respondent had had an opportunity to make an informed decision. That took him back to where he had begun where he said that, because the respondent had not been given a warning which she could understand, she could not make a decision. In other words, the statement led him back into the area where it is common ground that his approach was erroneous. He repeated that the respondent had not had an opportunity to make an informed decision. His final conclusion was, "I find that it is more probable than not that, if she had been fully informed of the facts, her decision might have been different and that is sufficient for me to find in the [respondent's] favour" (emphasis added). That last statement does not sit well with the respondent's emphatic evidence referred to earlier by his Honour which he does not say he accepts. I think his omission of any statement to that effect was quite deliberate because of the view he took about how the case would be disposed of. His Honour directed his mind to the wrong question. The question was whether he was satisfied on the evidence that, if an adequate warning had been given, the respondent would not have agreed to the procedure. If he had accepted her evidence to that effect, that would have been the end of the matter, but a proper understanding of his Honour's approach in the concluding paragraph of his judgment points to his not having done so. His final sentence itself reflects error because his Honour goes no further than to say that, if the respondent had been fully informed of the facts, her decision might have been different. That is not enough. That plainly appears from the judgments of the majority of the High Court in Chappel v Hart. As was remarked during the argument, the language used by his Honour in the last sentence of the passage is suggestive of his having taken the view that the respondent had been deprived of a chance of making an informed decision by the appellant's inadequate warning. But Chappel v Hart makes it clear that it was not appropriate to analyse that case as one of the loss of a chance. See Gaudron J (at 522), McHugh J (at 531), Kirby J (at 549 and 552) and Hayne J (at 560-1). McHugh J and Hayne J comprised the minority of the Court. That is not of relevance in relation to the remarks made by them concerning the appropriateness of a claim for damages based on the loss of a chance for cases such as this. Certainly no such case was made in the present proceedings. Undoubtedly it must be very difficult for plaintiffs in cases of this kind to place themselves in the position in which they were prior to a medical procedure being carried out. If the procedure has gone wrong, it is only natural that they will tend to answer questions such as were put to the respondent here both in her evidence in chief and in cross-examination in the emphatic way in which the respondent here answered them. The problem is to keep hindsight out of the answer. That is because the events which have transpired have left the plaintiff with a permanent disability. Courts, accordingly, need to be cautious about accepting at face value statements such as were made by the respondent here; cf McHugh J in Chappel v Hart, footnote 33 at 526, especially his reference there to the joint judgment in Rogers v Whittaker (in which he participated) at 490. Doctors themselves are in a difficult situation. They will often, as appears to have been the case here, take the view that there is minimal risk and that the procedure will be of substantial benefit to the patient. They will wish to avoid over-emphasising a warning in case it deters a nervous patient from undergoing a procedure which is likely to be beneficial. Undoubtedly some doctors will perform the exercise more adequately than others. This will be due sometimes to differences in personality and communication skills. The whole exercise is fraught with difficulty both from the doctor's and the patient's point of view. Nevertheless, the patient is entitled to 6 UNREPORTED JUDGMENTS know the risks which are involved and must be told. If that does not occur and the operation goes wrong, the question then arises whether the patient, if an adequate warning had been given, would nevertheless had had the operation. That is the question which the Court must ask itself and, as I have said, it will be a difficult question to answer in most cases. It is clear that in the present case his Honour was well aware of these difficulties but, in endeavouring to cope with them, he fell into the errors to which I have referred. It follows that the verdict and the consequent judgment recovered by the respondent against the appellant must be set aside. The next question, which I have not found free from difficulty, is whether there should be a new trial or the substitution of a judgment for the appellant. The damages in this case were $12,500 and one would not lightly order a new trial. But if that is the proper course, that is what must be done. In the submission of counsel for the appellant, there should be no new trial because his Honour's conclusions in the last paragraph of his judgment which I have set out show that he was not prepared to go further than he did. If he had been, he would have accepted the respondent's evidence. That would have been the end of the matter. I think what his Honour has written suggests that he was unable to bring himself to a sufficient degree of satisfaction to take that course and his solution was to say that, if the respondent had been fully informed of the facts, her decision might have been different. That was the high water mark of his Honour's findings in her favour. I do not think it is a case which merely involves a misdirection requiring a new trial. I think the submission made by counsel for the appellant is right. His Honour's findings are there and they do not justify a verdict for the respondent. One of the reasons for his Honour's uncertainty about the matter may have stemmed from the appellant's evidence that he thought that there were sound medical reasons why the respondent should have the operation. She had impacted wisdom teeth and at least the risk, if not the probability, of chronic infection, particularly upper respiratory tract infection, if the teeth were not removed. An adequate warning of risks of the operation, particularly risks of numbness or anaesthesia, would have needed to be preceded by a clear and adequate explanation, not only of what was involved in the procedure to be undertaken, but of why the operation was necessary. It is plain from the appellant's evidence that he thought that the operation was not only beneficial, he thought it was necessary from a therapeutic point of view. Any explanation of why the operation was desirable would have been likely to have included statements to this effect. The respondent would not have been left in doubt as to its desirability in the overall interests of her general health. She would have been left in no doubt that cosmetic considerations, whilst no doubt important, were by no means the only ones. What her decision would have been if that is what she had been told is a matter of speculation. His Honour does not say anything about these matters in his judgment but the uncertainty which is apparent on the face of it may well have stemmed from considerations such these. In the result I would allow the appeal, set aside the verdict and judgment of the District Court and substitute therefore a judgment for the appellant. The respondent should pay the appellant's costs of the trial and of the appeal but, in respect of the costs of the appeal, she should have a certificate under the Suitors' Fund Act 1951. URJ McKELLAR v BLAKE (Sheppard AJA) 7 _ Order that the appeal be allowed. 2. Order that the verdict and judgment of the District Court be set aside and that there be substituted therefore a judgment for the appellant. 3. Order that the respondent pay the appellant's costs of the trial and of the 5 appeal but that, in respect of the costs of the appeal, the respondent have a certificate under the Suitors' Fund Act 1951 if qualified. Counsel for the appellant: M Dicker 10 Solicitors for the appellant: Minter Ellison, Sydney Counsel for the respondent: R F Wilkins Solicitors for the respondent: Dennis & Co, Sydney