Charles BLOODWORTH -v- SOUTH COAST REGIONAL HEALTH AUTHORITY trading as GOLD COAST HOSPITAL and ANOR [2000] NSWSC 1234

New South Wales Supreme Court

CITATION : Charles BLOODWORTH -v- SOUTH COAST REGIONAL HEALTH AUTHORITY trading as GOLD COAST HOSPITAL and ANOR [2000] NSWSC 1234 CURRENT JURISDICTION: COMMON LAW FILE NUMBER(S) : SC 20052/95 HEARING DATE(S) : 01/11/99 - 02/12/1999 JUDGMENT DATE : 1 September 2000

Plaintiff- Charles Bloodworth PARTIES : 1st Defendant - South Coast Regional Health Authority t/as Gold coast Hospital 2nd Defendant - Dr Geoffrey Miller JUDGMENT OF : McInerney J

COUNSEL : Plaintiff- Mr A. Morrison S.C. with Mr D. Elliott Defendants: Mr J.L. Glissan Q.C. with Mr J. MacDougall SOLICITORS : Plaintiff: Gerard Malouf & Partners Defendants: Cowley Hearne CATCHWORDS : medical negligence - laparoscopic cholecystectomy- hypoxic brain damage - Verres Needle - Trocar - plaintiff malingering - fund management Rogers -v- Whittacker (1992) 175 CLR 479 CASES CITED : Chappel -v- Hart (1998) 195 CLR 232 The Nominal Defendant -v- Gardikiotis (1996) 186 CLR 49. DECISION : Interim Orders Paragraph 473; Final Judgment Paragraph 490

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IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

McINERNEY AJ Friday 1 September 2000

20052/95 Charles BLOODWORTH v SOUTH COAST REGIONAL HEALTH AUTHORITY trading as GOLD COAST HOSPITAL JUDGMENT

1 HIS HONOUR: The plaintiff, Charles Bloodworth, sues the defendants, South Coast Regional Health Authority trading as Gold Coast Hospital (the first defendant) and Dr Geoffrey Miller (the second defendant), a staff specialist attached to that hospital, for professional negligence when the second defendant performed an operation on the plaintiff known as a laparoscopic cholecystectomy on 28 January 1992 at the Gold Coast Hospital to remove his gall bladder. 2 There is no dispute that the operation was a failure. In the procedure which required sharp instruments to be introduced in the abdomen blindly, one of which caused a laceration of the common right iliac artery and a puncture of the left iliac vein (see Exh 17 being the second defendant's sketch of where the injury occurred). I accept this caused carbon dioxide (CO2) gas entering the venous system resulting in what is described as a CO2 embolism, resulting in a rapid fall in blood pressure and cardiac arrest. When this occurred the operation ceased, external cardiac massage (CPR) was commenced and other procedures were undertaken to restore cardiac output. After approximately 12-13 minutes, cardiac output returned and blood pressure returned and CPR ceased. 3 Thereafter for some 55 minutes the plaintiff's blood pressure was hypotensive until it was observed that his abdomen began to distend indicating internal haemorrhage. A laparotomy was performed which required an extensive incision from the bottom of the chest to the pubic area and this revealed two to three litres of blood in the peritoneum and retro peritoneum space. A laceration of the right common iliac artery and puncture of the left iliac vein were discovered. A vascular surgeon, Dr Dinnen, who was fortunately present at the hospital, was called into the theatre and he resected the artery and repaired it and sutured the vein. 4 The plaintiff thereafter was in intensive care for some thirty-six hours and recovered and moved to a surgical ward and was discharged from hospital on 8 February 1992. In July 1992 he underwent an operation described as an open cholecystectomy by a Sydney surgeon, Dr Van Gelderen, who removed the offending gall bladder without any complications. There is no dispute that the removal of the gall bladder was necessary, the only dispute is how urgent was such removal. 5 The plaintiff claims that as a result of what happened he has suffered considerable sequelae, both from the failed procedure itself, which he alleges has resulted in abdominal pain, and as a result of the cardiac arrest and in the subsequent period of 55 minutes before the laparotomy was performed, he suffered hypoxic, hypotensive brain damage which has resulted in a number of sequelae including significant memory dysfunction, cognitive difficulties, mild expressive dysphasia, emotional lability with poor planning skills and epilepsy. There is considerable dispute between the parties on liability and damages. Dr Bell, a well known psychiatrist, has alleged that the plaintiff is in fact malingering and there is no evidence to suggest that he has suffered any significant brain damage with sequelae. 6 Professor Holland, a Professor of Anaesthesia, has prepared reports in this case and has set out in some detail the surgery attempted on the plaintiff. In order to understand the plaintiff's case, it is necessary to set out shortly the details of the procedure to determine what went wrong. The cause of the failure of the operation is subject to dispute and many professional witnesses have been called. 7 The plaintiff relies on the evidence of two distinguished British surgeons, Professors Davidson and Boulos. It appears both Professors examined the plaintiff in England on 19 January 1998. Professor Davidson is Professor of Surgery at the Royal Free Hospital of Medicine in London and Professor Boulos was Professor of Surgery at the University College London Medical School. Evidence was taken on commission in London on their opinion as to what went wrong in the operation and the cause of such failure. The second defendant, Dr Doolan the anaesthetist at the operation, Drs Aroney, Sheldon and Glenn surgeons, Pryor and Professor Holland, a specialist anaesthetist all gave evidence on behalf of the defendant on the issue of liability in the case. Many other reports were tendered. 8 The operation is described as keyhole surgery and was devised to overcome the more extensive open procedure in what previously had been the traditional way of dealing with gall bladder removal. It is not disputed laparoscopic cholecystectomy as compared to open cholecystectomy has considerable benefits in reducing the trauma of the operation which reduces the stay in hospital, with a consequent earlier return to work. As will appear, however, there are dangers in the procedure not encountered in the open operation. 9 This type of laparoscopic surgery had traditionally been undertaken by gynaecologists throughout the 1970s. In the late 1960s, gynaecologists in Australia began to use the laparoscope, described as a telescopic device with a fibre optic illumination to visualise the interior of the abdominal cavity by an extremely small incision. At first, in an aid to diagnosis, instruments were invented which enabled simple procedures to be undertaken laparoscopically such as occlusions of the Fallopian tubes to produce sterilisation. Gas is introduced into the abdomen to make pelvic structures more readily accessible by the laparoscope and increase the space available for ancillary instruments to be manipulated. Originally, air was introduced but there was a risk of air embolism and it was replaced by carbon dioxide (CO2). The rationale for using CO2 was that, being soluble, if any gas gained access to the venous circulation, it would quickly dissolve into the bloodstream whereas air bubbles could require a much longer time to be absorbed. 10 During the 1970s gynaecologists were the foremost users of these endoscopic operative techniques and in the mid 1970s video camera technology had progressed to the point where it was possible to replace direct observation through the endoscope by an on-screen display of internal structures. It was said that orthopaedic surgeons enthusiastically embraced arthroscopy of joints, especially for knee surgery. General surgeons however, it appears, did not adopt endoscopic methods until the 1980s and the first upper abdominal laparoscopic procedures, usually a cholecystectomy, performed in Australia occurred in 1990. Consequently many surgeons including in particular the second defendant in the main were not totally familiar or skilled in the procedure at the time the plaintiff's operation took place. 11 Consequently at the time of this operation on the plaintiff on 28 January 1992, many surgeons, including the second defendant, were still on a learning curve and this is not disputed. The initial step in the procedure is to make an incision in the umbilicus and through that incision a needle described as the Verres needle (Exh R) is used to puncture the abdominal wall through the incision in the umbilicus. The needle is pushed through the incision through the abdominal wall blindly into the peritoneal cavity. When this is done, it is then connected to a gas supply and CO2 is introduced into the abdomen at 1-1.5 litres per minute. Gas pressure is monitored and not normally allowed to exceed 15mm of mercury and monitored to ensure there are no regular fluctuations which might indicate it had entered a blood vessel. The necessity for a pneumo-peritoneum is to establish operating space and to give greater access to the area required to be dealt with. 12 The surgeon decides when sufficient volume of gas has entered and then gas flow is again commenced at a higher flow per minute. One of the problems with the procedure is in inexperienced hands it is difficult to establish when a satisfactory pneumo-peritoneum is obtained. After the operating surgeon is satisfied that an adequate pneumo-peritoneum is obtained, the next procedure involves the introduction of a trocar which within its body has a port which is inserted into the abdomen through the abdominal wall. The trocar used in this case has been described as a disposable one, and had a sharp three sided blade with a sharp point (see the type of trocar used Exh S). It was equipped with a protective shield. When the trocar penetrates the abdominal wall the instrument was so designed that a protective shield springs out and covers the blade converting it into a blunt instrument. There is, however, a necessary period of time after penetration of the abdominal wall before the blade is shielded. In an article in the British Journal of Surgery (Vol 1) 1992 (Exh 5) this problem was canvassed. The problem was said to be that the external shield did not shoot forward as soon as the trocar entered the peritoneum but can be held back by loose peritoneum for an appreciable distance and may therefore cause the unshielded trocar to puncture an intra-abdominal structure. The article sets out the desirable technique in using such a trocar. 13 A similar article pointing out the same problem is Exh OO where it was said the most spectacular accidents occur during the insertion of the large trocar. It was noted as in Exh 5 if the incision of the abdomen is not wide enough through which the trocar is pushed the sleeve of the trocar may be caught in the skin margins thus impeding the passage of the instrument requiring greater and usually uncontrolled force. Thus in those circumstances the incision should be wide enough to overcome this problem. 14 The trocar is then withdrawn leaving what is described as a port in situ into which is fitted the lens of a camera thus the internal structures of the area can be visually observed whilst the four other ports are introduced into the body to enable the operation to proceed. See sketch by the defendant of the position of these additional ports (Exh 16). 15 This was the technique said to be adopted by the second defendant. Professor Holland refers to the fact that after several accidents had been reported in conducting this procedure, the Verres needle technique has been abandoned in favour of the Hassan technique which enables a blunt port to be inserted through the opening in the abdomen wall and a camera is inserted to enable a view of the further procedures. Whilst it is said this procedure is more time consuming it overcomes the danger of inserting sharp instruments blindly into the abdominal cavity.