DEEB v. GUIRGIS [2000] NSWCA 149

New South Wales Court of Appeal

CITATION : DEEB v. GUIRGIS [2000] NSWCA 149 revised - 19/06/2000 FILE NUMBER(S) : CA 41060/98 HEARING DATE(S) : 15 June 2000 JUDGMENT DATE : 15 June 2000

PARTIES : DAAS DEEB (Applicant) MEDHAT FAHMY GUIRGIS (Respondent) JUDGMENT OF : Powell JA at 1; Heydon JA at 25; Foster AJA at 26

LOWER COURT JURISDICTION : District Court LOWER COURT DC 6782/97 FILE NUMBER(S) : LOWER COURT Puckeridge DCJ JUDICIAL OFFICER :

COUNSEL : B.J. Gross QC/I.M. Wallach (Appellant) M.I. Bozic (Respondent) SOLICITORS : Craddock Murray & Neumann (Appellant) Tress Cocks & Maddox (Respondent) CATCHWORDS : NEGLIGENCE - Breach of duty - Medical practitioner - Duty to warn of possible adverse effects of proposed treatment - Extent of duty - No question of principle - ND DECISION : Appeal dismissed with costs

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 041060/98 DC 6782/97

POWELL JA HEYDON JA FOSTER AJA

15 June 2000

DEEB v. GUIRGIS

JUDGMENT 1 POWELL JA: This is an appeal by an unsuccessful Plaintiff from a judgment delivered, and orders made, by Puckeridge DCJ in the District Court on 11 December 1998. 2 In the proceedings with which his Honour was concerned to deal, the Plaintiff sought to recover against the Defendant, a specialist orthopaedic surgeon, damages for professional negligence. As originally pleaded, the negligence assigned extended not merely to the advice given by the Defendant as to surgery which was proposed but also to the surgery carried out by him. However, at trial the allegation of negligence in the conduct of the surgery was not pressed and the principal issue for determination at trial was whether or not the Plaintiff was properly advised by the Defendant before the surgery was carried out, no doubt it being asserted - although, as I read the evidence, the basis for such an assertion was not made out - that if the Plaintiff had been properly advised, he would not have undergone the surgery. 3 At the time of his original consultation with the Defendant the Plaintiff was a comparatively young man of some thirty four years of age. He had been born overseas and came to this country only a few months before he saw the Defendant. The Plaintiff suffered from what was described in the evidence as a congenital hip displacement, a condition which left him with a significant limp. It had, however, apparently not disabled him from any form of work prior to his coming to this country, as the evidence was that, in his home country, he had worked from time to time as a waiter. 4 In November 1982 the Plaintiff consulted a general medical practitioner, Dr Assad, who, having had certain x-rays carried out, then referred him to the Defendant for the purpose of having the Defendant assess the Plaintiff's condition and advise Dr. Assad as to the appropriate course of action. 5 The first consultation which was carried out was on 25 November 1982. There was a considerable dispute at trial as to the history given by the Plaintiff to the Defendant and as to the complaints which he relayed to the Defendant in relation to his condition at that first consultation. 6 The Defendant's clinical records relating to the Plaintiff became part of the material tendered at trial but an attempt was made on behalf of the Plaintiff to demonstrate that those medical records were not accurate contemporaneous records but were cards which had been fabricated, so it was suggested, long after the event and perhaps even after the proceedings had been commenced in this Court in 1988. 7 The difficulty which that attempt at trial faced was that there was also tendered as part of the evidence a letter which was written by the Defendant to Dr. Assad only four days after the consultation on 25 November 1982 - the fact that there was a four day difference between the consultation and the date of the letter is of little consequence, as the date of consultation was a Thursday, so that the date of the letter was the following Monday. 8 In that letter, which is quite a detailed one, the Defendant commenced by recording that when he interviewed the Plaintiff, "the (Plaintiff) presented (to him) complaining of a painful, stiff, deformed right hip of long duration…... (which) pain (had) progressively worsened and (at the time of the consultation) was not controlled by the analgesics which he was engulfing lift (sic) lollies". 9 After further elaboration of the nature of the pain and a record of what the Defendant had noted on examination, the letter concluded in the following way (Blue AB 40-41): "I reviewed his x-rays which confirmed the above findings and these were explained to the patient. The possible reconstructive procedures were (sic) explained, Schanz osteotomy verus THR both confirmed at a later stage with Tendo-Achilles lengthing(sic). I emphasised that he should not undertake either as long as he could cope with the pain. I indicated to the husband and wife that there was no procedure that would give him a brand new hip or lower limb and that both procedures were very difficult to perform, specially the THR. I explained the different complications and outcomes of both procedures, indicating that the operation was not a magic cure. The schanz ostectomy (sic) as an alternative was discussed but after explaining it they discarded it as a line of treatment and wanted to stick to THR. I explained to the husband and wife as well that prior to the operative treatment and Skeletal traction through Steinman's pin in his tibial tubercle to try and stretch the soft tissues and would be implemented two weeks (sic) in the Hospital. I also explained about the other post-operative complications and problems with THR as dislocation, infections, femoral stem fractures and deep vein thrombosis. I also explained about the skin complications and teno-achilles lengthening and the periord (sic) in plaster of paris immobilisation. I advised both the husband and wife to consider the facts and to see me again after two months for a decision."