McInnes v Ahluwalia [1999] NSWSC 818

New South Wales Supreme Court CITATION : McInnes v Ahluwalia [1999] NSWSC 818 CURRENT JURISDICTION : Common Law Division FILE NUMBER(S) : 20150/95 HEARING DATE(S) : 7-10 June 1999 JUDGMENT DATE : 11 August 1999

Katherine Anne Langhorne McInnes (Plaintiff) PARTIES : v K. Ahluwalia (Defendant) JUDGMENT OF : Davies AJ

COUNSEL : Mr A T McInnes QC, Mr A L Hill (Plaintiff) Mr P H Greenwood SC (Defendant SOLICITORS : Kenneth Harrison (Plaintiff) Tress Cocks & Maddox (Defendant) CATCHWORDS : Medical negligence; Damages; Value of chance CASES CITED : Malec v J C Hutton Pty Ltd 169 CLR 638 M B P (SA) Pty Ltd v Gogic 171 CLR 657 DECISION : Judgment against defendant; Damages assessed; Costs reserved.

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

DAVIES AJ

Wednesday, 11 August 1999

20150/95 - Katherine Anne Langhorne McINNES v K. AHLUWALIA

JUDMENT 1 HIS HONOUR: This is a claim for damages in respect of medical conditions suffered by the plaintiff, Miss Katherine McInnes, which are said to have been aggravated by the failure of the respondent, Dr K Ahluwahlia, to diagnose a condition of bilateral hip dysplasia when Katherine was a young child and also by his failure to advise the plaintiff's mother, Mrs Maxine McInnes, to have her daughter checked again at a later stage. The negligence is said to have occurred in April 1974 when the plaintiff, aged two months, attended with her mother on Dr Ahluwahlia. The existence of the condition, bilateral hip dysplasia, was not identified until 1990, when Katherine was sixteen years of age. Her left hip was operated on on 26 June 1990 and her right hip on 9 November 1990. On 3 October 1991, the pins were removed from the pelvis on both sides. In 1974, the name of the family was Thomas and the medical records of that period use that name. 2 Katherine suffered a condition in which each hip socket, the acetabulum, was steeper and shallower than it ought to have been. With this condition, the femoral head tends in the long term to migrate slowly upwards and there is increased pressure on the cartilage lining, the joint surface between the femoral head and the acetabulum. With the increased pressure over time, the cartilage tends to wear away and the joint can become painful and stiff and subject to osteoarthritis. In a severe case, the femoral head may become displaced. 3 The condition can be, and probably was in Katherine's case, genetically based. Female children tend to suffer the condition more than male children. Katherine's elder sister, Josine, who was born on 14 June 1971, suffered at birth from bilateral dislocation of the hips. She was treated by Dr Gordon Colvin, a specialist in the field, and was placed in a Pavlic harness for fourteen months. This harness encouraged the bone structure to develop normally and Josine suffered no residual consequences. It is a matter of interest rather than of any particular significance that another daughter, Olivia, born to Mrs McInnes in 1988, also suffered from the genetic condition. Her condition was identified shortly after birth and she also suffered no further problems after wearing a harness for seven months. 4 I have said that Katherine was born with bilateral hip dysplasia, not bilateral hip dislocation from which Josine suffered. It is agreed by the medical witnesses that the distinction is important. Dr John P H Stephen, a specialist in paediatric orthopaedics, who operated on Katherine in 1990 when she was sixteen years of age, gave evidence that Katherine suffered from dysplasia of both hips with early subluxation on the left side. He described the subluxation as early dislocation. In his oral evidence, Dr Stephen said that Katherine may at birth have had a dislocation on the left side which subsequently stabilised. However, I think it improbable that that was the case. I think it probable that, had there been a dislocation at the time of birth, that would have been picked up by either Dr Ahluwahlia or the paediatrician, Dr Oldfield, who examined Katherine shortly after her birth and who detected no abnormality. Dr Stephen said that, with dysplasia, the femoral head tends to migrate slowly upwards. He said that subluxation occurs when the femoral head starts to slide outward. 5 Dr Stephen said that when he first saw Katherine on 22 March 1990 she stood without any muscle wasting. She had a very mild left-sided limp and the lower left limb was 7 mm shorter than the right but the Trendelenberg test was negative showing no muscle weakness. Katherine had a good range of movement although there was some mild restriction. The left hip was showing probably the beginnings of sclerosis, indicating early degenerative change. For reasons I shall later mention, I think that symptoms of pain from Katherine's left hip began to emerge in the year before the operation. 6 I do not think it could be seriously contended that, in 1974, Dr Ahluwahlia was negligent in not diagnosing for himself Katherine's hip dysplasia. Evidence has been given that, since 1974, radiography has much improved. Ultrasound is also now used as a diagnostic tool. Even so, the evidence is that it can be difficult to diagnose the condition of dysplasia before the bones have firmed up at about six months. A displaced hip can be more readily detected. 7 The issue on negligence thus turns upon the question whether Dr Ahluwahlia should have given to Mrs McInnes a reference to an appropriate specialist which she requested, and whether, in any event, he ought to have advised Mrs McInnes to bring Katherine back after a few months to be checked again. 8 There was a great deal of agreement between the medical experts; but I should observe that, in this case as in other cases, the process of examination and cross-examination has tended not to resolve important questions about which the evidence differs. Other jurisdictions are adopting the procedure, which was first commenced in the Trade Practices Tribunal, where the experts appear together in a consultation with the court or tribunal. At such a hearing, experts tend to resolve many of their differences and make it clear what are the differences which remain and why each expert holds his or her view. In the present case, we are left with some important issues about which further clarification would have been desirable. 9 I shall set out the substance of the matters in respect of which the experts were in agreement and I shall do that by referring to the report of Dr J S Scougall, who was not cross-examined but who set out in his report a number of principles in very clear and what appear to be fair terms. I incorporate and join together aspects of his report and aspects of his addendum. Dr Scougall said, inter alia: " At the age of 2-3 months, if there had been concern that the hips may not have been normal, then reasonable treatment at that time would have been to physically assess the hips then and at regular intervals, to check for the maintenance of stability, and then to carry out, at about the age of 6 months, a radiological examination. ... The difficulty with interpretation of radiological examinations in a neonate is related to the fact that there is relatively more growing cartilage which does not show up on radiological examination and relatively less bone, which of course does. ... the degree of dysplasia is quite frequently difficult to assess in radiological examination at the age of 6 months. ... It should be pointed out that the vast majority of dysplastic hips usually spontaneously resolve. These days, with the introduction of ultrasound examination in neonates and continuing observation of these hips that are found to be dysplastic, it appears that very few do not resolve ... Genetically determined causes of failure of a child's hip to develop normally are usually more difficult to treat with end results that are less satisfactory. ... Failure of the dysplasia to improve, over the years, enough to be thought to be acceptable, would have warranted discussion on the possible merits of surgical correction. ... By acceptable is meant that the probable risk for the later development of osteoarthritis of the hips is held to be not great enough to justify the risks of surgery for the child. ... I would add ... that hip dysplasia, in the presence of a concentrically reduced hip prior to any subluxation causing osteoarthritic changes, is asymptomatic. " 10 I set out those matters from Dr Scougall's report because I can see no element of bias in them. It seemed to me that Dr Stephen, who was called on behalf of the plaintiff and Dr Stalley, who was called on behalf of the defendant, both tended on occasions to overstate a point. Dr Scougall reported to the defendant's solicitors. 11 An issue between the experts was whether Katherine's hip dysplasia would have been identified had an x-ray been taken when she was about the age of six months. Dr Stephen said, "X-ray at about the age of twenty weeks in an infant is pretty reasonable showing either a dysplasia or a dislocation". However, Dr Stalley expressed, as did Dr Scougall, the point that, in 1974 when ultrasound and more modern radiological developments were not available, the diagnosis of dysplasia and of its degree was difficult in the early months and became easier as the child grew older. I accept Dr Scougall's description of the position. 12 That leads to the issue whether, had Katherine been diagnosed at an early stage as suffering from dysplasia, she would have been treated with a Pavlic harness, as had Katherine's elder sister Josine. Dr Stephen said that the harness is the ideal method of treatment and he said that the number of orthopaedic surgeons who would fail to use a harness would be in the minority for the reason that the longer one waits to treat the problem the less is the potential for regeneration. Dr Stalley said, however, that a Pavlic harness is used with either dislocated or dislocatable hips, hips which show a problem on physical examination. Dr Stalley said he had not seen a Pavlic harness used in any instance for progressive dysplasia or for hips that did not dislocate. He said that the use of the Pavlic harness is a hotly debated topic in the circumstances of a child such as Katherine. Dr Stalley gave this oral evidence: " There is no doubt in the literature that success rates of Pavlic harness usage when started in children from four to six weeks of age is around 90 per cent in correcting dislocating and dislocatable hips. But if you have no dislocation or dislocatable hips and you can't … x-ray until the child is older ascertain that they have a dysplastic hip then you would start the use of the Pavlic harness when you can begin to make those radiological estimations around six months that can say this child has significant dysplasia, if you then start to use the Pavlic harness at that age its efficacy is reduced because the ability of the hip to accommodate and change has significantly reduced and the likelihood of something such as avascular necrosis go up so there is a reticence to use the Pavlic harness purely for dysplasia in the older child . " (emphasis added) 13 In his report, Dr Scougall did not mention the Pavlic harness. I infer that his opinion was similar to Dr Stalley's on this point. When speaking of what might have occurred had x-rays been taken at the age of six months and disclosed dysplasia, Dr Scougall stated: " Assuming the hips at that stage were concentrically reduced, which the subsequent history indicates, then continuing observation would have been recommended, with periodic radiological assessments every 6-12 months. " 14 In the result, I conclude that the use of a Pavlic harness was just one of the options that would have been available to a doctor had dysplasia been identified when Katherine was about six months. As Dr Scougall suggested, it would have been appropriate for there to be radiological examination at intervals to ascertain if Katherine had a problem. If those examinations had occurred, then, at six months or a few months thereafter, x-rays would probably have shown that Katherine suffered from hip dysplasia. Whether a Pavlic harness would have been used at that point would have depended upon the view of the doctor as to its possible benefits and the problems to which its use then could give rise. 15 Another option for treating dysplasia was an operation. The experts seem to be agreed that, had an operation been undertaken, it would have been undertaken before the child reached the age of five or six or after the age of twelve, probably at about sixteen when she was actually operated on. Dr Scougall said that, in a pre-school child, the operation frequently discussed is an innominate osteotomy, with some doctors recommending a femoral osteotomy, while, in the older child, twelve years or over, the operation is usually a triple innominate osteotomy. The latter was the operation actually performed on each of Katherine's hips. Dr Stephen said that, had he operated before the age of six, he would have performed a femoral osteotomy. 16 Katherine's birth occurred on 25 February 1974 in the Mona Vale District Hospital. It was noticed that there was a slight click in Katherine's left hip. Katherine was put into double nappies which acted as a primitive harness. Clicky hips may have many causes and are not necessarily a result of hip dysplasia or hip dislocation. Double nappies appear to be of doubtful therapeutic value. 17 The resident medical officer noted for the purposes of a consultant, Dr Oldfield, a paediatrician, that Mrs McInnes' previous child had suffered from severe jaundice and congenital dislocated hips. Dr Oldfield examined the child. He prescribed treatment for Katherine's jaundice. As to the hip condition, he merely noted, "I have discussed problem with mother". Mrs McInnes said that she was informed by Dr Oldfield that he could find no problem with Katherine's hips. Dr Oldfield directed that the double nappies be discontinued. 18 On 3 March 1974, the night nurse noted in the records that Katherine had a slight click in the left hip and that the mother was aware and would consult her own GP in two weeks. Mrs McInnes did not raise the matter with Dr Ahluwahlia when she saw him on 12 March 1974. Her evidence is that she obtained from her obstetrician, Dr Newlinds, a reference to Dr Colvin who had treated Josine. At about that time, Dr Newlinds wrote to Dr Ahluwahlia on 17 April 1974 as follows: " I saw Mrs Thomas today some seven weeks after the birth of her baby girl. I could find no abnormality when I examined the daughter. She has been told by two different Sisters at the hospital that there is a click in one hip but I have not been able to detect it. However, she has a sister who had bilateral marked congenital dislocation of the hip and therefore I feel the matter cannot be ignored. I have taken the liberty of referring her directly to Dr Gordon Colvin who managed the last baby's hips. I suggested he contact you directly. " In the same letter, Dr Newlinds said that he had given Mrs McInnes a contraceptive device and he asked Dr Ahluwahlia to check the position of it in about a week's time. 19 What happened next is a matter of dispute. Mrs McInnes gave evidence that she tried to obtain an appointment with Dr Colvin but could not do so, probably because of Dr Colvin's ill health. She said that she made an appointment with Dr Ahluwahlia with a view to obtaining a reference to another specialist. She said that Dr Ahluwahlia declined to give the reference but examined Katherine himself. He could find no problem with Katherine's hips. In his evidence, Dr Ahluwahlia said that he could not recall the consultation and had no note of it. 20 However, Dr Ahluwahlia's note taking was deficient. There is at least one entry with respect to Mrs McInnes on the card which he kept for Josine and, although Dr Ahluwahlia kept no record of the consultation with which we are now concerned, there is on the card which he kept for Katherine the date 26 April 1974. Against that date there is no entry. It is the only such circumstance in the record cards which are in evidence. It is probable that Mrs McInnes did see Dr Ahluwahlia on that date to have the contraceptive device checked and that, during that consultation, she discussed Katherine's hips and asked for a referral to a specialist. The fact that both Katherine's hips and the contraceptive device were referred to in Dr Newlinds' letter is a strong indication that both matters would have been discussed during the consultation. Moreover, there is no good reason to reject Mrs McInnes' evidence that she could not obtain an appointment with Dr Colvin and that she asked Dr Ahluwahlia for a referral to another specialist. It is probable that she did so. 21 Dr Ahluwahlia did not disagree that, if Mrs McInnes had asked for a referral, he would himself have examined the child. It follows that, at that consultation, Dr Ahluwahlia examined Katherine and could find no problem with the hips. It is probable that Dr Ahluwahlia was informed that the paediatrician had also examined Katherine and could find nothing wrong and that he concluded that there was no need to refer Katherine to a specialist at that time. 22 At the present day, attitudes in the profession have changed and investigatory techniques have improved. Although Dr Stephen and Dr Stalley agree that it would have been appropriate for Dr Ahluwahlia to refer Katherine to a specialist, I accept Dr Stalley's evidence that, prior to 1980, it was a matter about which a general practitioner would have exercised his own judgment. It is to be kept in mind that Dr Ahluwahlia and Dr Oldfield would have been familiar with the tests to be applied in such an examination and that Katherine was, at that stage, too young for radiological examination. 23 I cannot conclude that Dr Ahluwahlia was negligent in not giving to Mrs McInnes the reference that she requested. General medical practitioners are bound to exercise their own judgment as to whether or not there should be a reference to a specialist. Dr Ahluwahlia made an investigation and could not detect any abnormality or symptoms thereof. I am satisfied that Dr Ahluwahlia would have been informed that the consultant, Dr Oldfield, had looked at the child and could identify no problem. I am not satisfied that, at that stage in April 1974, there were any such symptoms or other circumstances as would have required Dr Ahluwahlia, in the exercise of his duty of care to Katherine, to refer her to a specialist. In his oral evidence, Dr Ahluwahlia said that, in 1974, his view as to the value of seeing an orthopaedic surgeon in circumstances where there was a suspicion of hip dysplasia was that you needed to confirm the diagnosis by x-rays and that Katherine was only two or three months old, whereas x-rays were taken when children were six months or so of age. He said that he would never hesitate to send a patient to an orthopaedic surgeon, for he did not practise orthopaedics. 24 The question remains, however, whether Dr Ahluwahlia should have advised Mrs McInnes to come back for further investigation when Katherine was a little older. I am satisfied on the probabilities that he did not give that advice. That is because, not only has Mrs McInnes denied receiving such advice, but it is probable that, had she received the advice, she would have kept it in mind and would have brought Katherine back to Dr Ahluwahlia or to another doctor for further investigation. Mrs McInnes was well aware of the problem and of its significance. 25 In a written statement, Dr Ahluwahlia said: " 23. If presented with a history of clicking hips I would conduct my own examination. If I could find no evidence of clicking hips I would ask for the parent(s) to return the child to me for review when the child was weight bearing at about 10-12 months. If I was still in doubt at that stage I would arrange an x-ray which would show evidence of dislocation or dysplasia. " In his oral evidence, Dr Ahluwahlia reduced the period of 10-12 months, which appears in his written statement, to six months. Drs Stephen and Scougall said that, if a child is at risk of dysplasia, a doctor should keep the child under review. They are agreed that, if there is a risk, which there was with Katherine because of her sex, her sister's condition and her clicky hips, then from the age of six months onwards, further investigation should be undertaken. Dr Ahluwahlia's written statement accorded with that. 26 It follows in my opinion that, having regard to his knowledge of Katherine and to his receipt of Dr Newlinds' letter, which emphasised the importance of investigation, Dr Ahluwahlia should, on 26 April 1974, either then and there have given a reference to a specialist or have advised Mrs McInnes in clear terms to return to him when Katherine was six months of age. Dr Ahluwahlia did neither. In that, he was negligent. 27 It may be that Dr Ahluwahlia gave advice which was inadequate. In his written statement, Dr Ahluwahlia said he would ask that the child be returned for examination when the child was weight bearing. In his oral evidence, Dr Ahluwahlia said: " Q. And you are going to leave that 10 to 12 months? A. See it is, weight bearing starts at the 9 to 10 or 12 months, some children have problems with the weight bearing or could not stand so you get the x-rays and you check for dysplasia. Q. And you wait 10 to 12 months to check for dysplasia? A. Depends when the child complains . " (emphasis added) 28 These answers suggest that Dr Ahluwahlia would have waited for some complaint from the child or for some problems of weight bearing and it may be that the advice which he gave was to keep an eye on Katherine and to bring her back if that occurred. If that advice was given, and there is no evidence that it was, the advice was inadequate because the evidence before the Court shows that hip dysplasia is usually asymptomatic until there is wear in the joints. Very often a problem of hip dysplasia will not show up until a child is sixteen or eighteen years of age and may not show up until much later in life. The evidence also shows that treatment should commence as soon as is practicable, while the bones are forming. 29 In the circumstances, I am satisfied that Dr Ahluwahlia did not exercise the degree of care towards Katherine which a doctor in his situation ought to have done. The fact that he did not even make a note of the consultation is perhaps one indication that, on that day, he was not exercising due care so far as Katherine was concerned. 30 That brings me to the question of the lost chance. The issue is to assess the prospects that Katherine would not later have had physical problems had Dr Ahluwahlia either sent her off to a specialist orthopaedic surgeon for examination or had he advised Mrs McInnes to bring her back for an examination at about age six months. I think the six months period is the important time for I think that it is improbable that both Dr Ahluwahlia and Dr Oldfield missed any matter that should have been observed in the early months of Katherine's life by a physical examination. Therefore, the issue is as to what might have occurred had either an orthopaedic surgeon or Dr Ahluwahlia examined her again when she was about six months of age. 31 Here the evidence of Dr Stephen conflicts with that of Dr Scougall and of Dr Stalley. I accept the evidence of Drs Scougall and Stalley that, even at six months, the identification of dysplasia from x-rays was an uncertain task. It is probable that, at six months or at least during the 6-12 months period, dysplasia would have been identified. By then, the best prospects of using a Pavlic harness would have passed. Perhaps a harness would have been used, perhaps not. Katherine would have been kept under observation and it may be that an operation would have been performed at least on the left hip when she was about the age of five. This operation would of course have involved Katherine in significant trauma. There is also a possibility that Mrs McInnes would have been advised or chosen to wait to see how the hips developed and that no operation would have been carried out until about the time or shortly before the operations were actually performed. 32 Doing the best I can in this difficult field, I would assess the prospects that Katherine would have achieved a full recovery by reason of an early operation, the use of a harness or other treatment, at 50 per cent. This does not mean that I am satisfied as a matter of probability that Katherine's problems would have been overcome had Dr Ahluwahlia sent her to an orthopaedic surgeon or advised her mother to have her further examined at the age of six months. Rather, my view is that the chance of such recovery was about 50 per cent. 33 The damages issue is complex for, after the operations of which I have spoken, Katherine demonstrated a psychiatric condition of severe depression and social phobia. Dr Lisa Lampe, a consultant psychiatrist, on 29 November 1995 described the condition as follows: " Ms McInnes' psychiatric diagnoses, in accordance with the DSM-IV classification are Axis I: Major depression (recurrent), social phobia Axis II: avoidant personality disorder, borderline personality traits The observable features are anxiety and avoidance of social interaction, recurrent depression, suicidal thoughts and attempts and other self harming behaviour, and an extremely poor self image and low self esteem. " 34 There was a history of depression in Katherine's family at the level of her grandparents. J Parmegiani described her as biologically vulnerable to depression whilst Dr R McMurdo said she had a considerable congenital predisposition to both her depression and her anxiety or phobic condition. Dr McMurdo, who examined Katherine on behalf of the defendant, stated that Katherine would have developed some difficulty psychologically had she not had the difficulty with her hips. He noted that, had she not had any sexual assault nor suffered any problem with her hips and had had a very stable biological family, she might still have developed later depression and anxiety to a significant and serious degree. 35 Dr Lampe also agreed that it was very probable that Katherine would have developed a psychiatric illness whether or not she had had any hip problems. Another factor which played a part was that, when Katherine was aged six and again when she was aged twelve, Katherine was sexually assaulted. I need not mention the distressing circumstances of these assaults except to say that Katherine was so distressed and embarrassed by the second assault, which involved four youths, that she kept it to herself and did not disclose it until she was nineteen years of age. This, of course, tended to affect her underlying psychological condition. Dr Lampe was satisfied that the assaults, particularly the assault when she was aged twelve and before she attended secondary school, were major factors in Katherine's psychiatric problems. Dr Lampe agreed that, in terms of the stressors that were significant in the development of Katherine's psychological problems, the sexual assaults were, "at the very front ... by a long way". 36 However, I am satisfied that Katherine's hip condition contributed to the development of the severe psychiatric illness from which Katherine suffered in recent years. Dr Parmegiani spoke of bilateral hip pain during childhood but, as I shall later mention, I do not think there was any such pain. Dr Lampe and Dr McMurdo were, however, in agreement that the operations and Katherine's post-operative condition played a part in contributing to Katherine's illness. This view finds strong support in the report of Dr Phillip Ridge who had first seen Katherine on 9 March 1990 when she complained of left hip pain for ten days. Dr Ridge gives this description of his consultation on 20 February 1991, after the second operation: " The next occasion I saw Miss McInnes on the 20th February 1991 at which time it appeared she was depressed. She had the second operation on the 9th November 1990 by Dr John Stephen. At the time I saw her she had poor concentration and having difficulty talking to people. She had considered suicide and she had been like this for one month. She said she wanted to sleep all the time and had strange dreams about dying. She has difficulty doing her work especially Maths and she was said to have gone 'hysterical' on the previous Monday. She couldn't control herself and wouldn't accept any help from friends especially her best friend. She had no interest in school. She said she was like this before her surgery but not as bad and she could control things but now she felt she was unable to hold her feelings. She felt she was two people looking at herself with loathing and disgust in that she could not do anything. I suggested she see Dr Mel Bennett, Psychiatrist as soon as possible. "