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." ("THR" is an abbreviation for "total hip replacement".) 10 The Plaintiff and his wife returned on 20 January 1983 and despite further advice as to the difficulties with the procedure and the uncertain results indicated that they wished to have the reconstruction which had been proposed carried out. Accordingly, arrangements were made for the Plaintiff's admission to hospital, first, for the purpose of traction and, later, for the purpose of carrying out the hip reconstruction. 11 The first part of the procedure was carried out in late January 1983 and the reconstruction in late February 1983, the Plaintiff being discharged from hospital in March of the same year. 12 Unfortunately, the operation proved to be unsuccessful and further treatment was sought by the Plaintiff although not from the Defendant. Those further treatments were not particularly successful and it has been suggested that the Plaintiff is now unfit for any form of work other than perhaps work of a totally sedentary nature and of a secretarial type, which, given the Plaintiff's ethnic background and lack of English, would be very difficult for him to obtain. 13 The trial before Puckeridge DCJ was a fairly lengthy one, extending over a period of about ten days. The lay evidence was that of the Plaintiff, his wife and a Mrs Khoury, who had attended with the Plaintiff and his wife at the first consultation with the Defendant. The case which, through their evidence, the Plaintiff put forward at trial was that he did not at that first consultation, complain of pain but merely complained of the instability in his limb which was brought about by his unfortunate condition. The lay evidence was then followed by the specialist evidence of a number of highly qualified orthopaedic surgeons, that evidence being to the effect that in the case of a young man, as the Plaintiff was, in the absence of pain, total hip reconstructions should not be regarded as an option. 14 Therefore, the extent of the Plaintiff's complaint was a significant issue to be determined by Puckeridge DCJ at trial. 15 In the event, his Honour accepted as genuine the clinical notes which the Defendant produced and also accepted that the letter to which I have earlier referred was sent by the Defendant to Dr. Assad shortly after the consultation. His acceptance of those matters led his Honour to find that there had been a complaint of significant pain and that, in the light of the medical evidence given on behalf of the Plaintiff and by the Defendant himself, in those circumstances, a total hip reconstruction was an appropriate option. 16 That therefore led to the second issue before his Honour, that is, whether or not the advice that was given by the Defendant to the Plaintiff was appropriate in the circumstances. In that regard, his Honour held that the advice that was given was appropriate and in those circumstances, as I have previously indicated, his Honour dismissed the Plaintiff's claim. 17 A number of grounds of appeal were taken but in substance they come down to two: the first being that his Honour misapprehended the effect of the evidence that was tendered on behalf of the Plaintiff in relation to the clinical records and for that reason was in error in concluding as he did that the records were genuine, and that the advice that was given was proper in the circumstances; and the second that his Honour did not deal adequately with other evidence that had been tendered at the trial which tended to cast doubt upon the correctness of the clinical records and the letter that was written to Dr. Assad. 18 It may well be that his Honour misunderstood some aspect of the evidence - as to "trash marks" - given by Mr Westwood, the forensic document examiner, who gave evidence on behalf of the Plaintiff, but it seems to me that, in the long run, it was perfectly open to him to determine, as he did, that the clinical records that were produced by the Defendant were genuine and had been made at, or about, the time of the consultation. 19 In so concluding, his Honour relied in no small measure upon the fact that the letter to Dr. Assad substantially reproduced the material that was on the clinical cards themselves. 20 An attempt was made on the hearing today to submit that his Honour ought not to have regarded the letter to Dr. Assad as having been written at the time. However, it is abundantly clear that no suggestion was made at trial that the letter was not written at the time it was written, or that it did not accurately record the observations made by the Defendant at the time, or the advice which he tendered. That being so, the attempt now sought to be made should not be entertained. 21 For that reason, I reject the first ground of appeal. 22 What is essentially the second ground of appeal turns upon a passage in Puckeridge DCJ's judgment which, so it was said, reflected a form of reasoning that was not open to his Honour on the evidence. In this regard, his Honour said (at RAB 116-117) "If I cannot be satisfied that the note of 25 November 1982 was indeed a fabrication, I cannot disregard the note. As I indicated earlier, I also consider that the letter of the Defendant to Dr Assad confirms to a large extent the note of the Defendant of 25 November 1982. I therefore consider that the Defendant's clinical notes do indicate the history given by the Plaintiff to the Defendant on 25 November 1982. I therefore consider that when the Plaintiff attended upon Dr Guirgis on the first occasion he did complain of pain. However, I would consider that he referred principally to his limping. I would consider this to be the situation because of the notation by the Defendant and the reference by him in the letter to Dr Assad, the history that for the last two years or so he limped more because of his pain and inability to put full weight on that leg rather than his short leg and deformed joints." 23 It may well be that his Honour could have referred a in rather more extended fashion to the other aspects of the evidence to which our attention has been drawn this morning but, in the long run, the other evidence did not demonstrate that the complaints of pain which the Defendant recorded, both in his clinical notes and in the letter to Dr Assad, could not have been made and that pain was not a concomitant of the condition from which the Plaintiff suffered. 24 In the long run, I am of the view that neither of the grounds which the Plaintiff has sought to advance on this appeal have been made out, and I would propose that the appeal be dismissed with costs. 25 HEYDON JA: I agree. 26 FOSTER AJA: I also agree. 27 POWELL JA: That is the order of the Court. ******** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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